#8 International Space Agency v. Mark Whatney

Mars: The next frontier

Elon Musk has been all over space news in recent years with his now famous goal to take humans to our red sister planet. Despite what you may think, he’s not the only one; MarsOne (debatably), NASA, and Mars Base Camp, all have plans to put humans on Mars in the next few decades. Though there are some very convincing skeptics (Neil Degrasse Tyson); many people, myself included, are excited to see if Space X can pull it off and to see the subsequent flux in space law.

(See here for more on Musk).

There is just one problem.  Haven’t we already gone to Mars?  Didn’t Matt Damon already make it there?  Well, not exactly.  But he did play a convincing Martian.  Mark Watney — the lovable sarcastic astronaut, the man who stakes a personal claim to many firsts in space for humans, even being the first space pirate.  

(Go here for the complete list of top 10 space crimes.)

What it takes to be a space pirate (a.k.a Spirate)

Mark Watney spent 549 Sols (approximately 565 days) on Mars, the majority of which was spent trying to find a way home.  During his fight for survival he, by necessity, travels from his landing sight, to the landing site for the next Martian expedition in order to commandeer the lander.  While he is planning this, he makes a pretty bold declaration, a declaration most of us have wanted to make since we were four years old:

“There’s an international treaty saying that no country can lay claim to anything that’s not on Earth. By another treaty if you’re not in any country’s territory, maritime law applies. So Mars is international waters. . . . Here’s the cool part. I’m about to leave for the Schiaparelli Crater where I’m going to commandeer the Ares IV lander. Nobody explicitly gave me permission to do this, and they can’t until on board the Ares IV. So I’m going to be taking a craft over in international waters without permission, which by definition… makes me a pirate. Mark Watney: Space Pirate.”

Sure, as four-year-old children we weren’t running around pontificating on the finer points of maritime law, but we sure as hell knew what a space pirate was, and we all wanted to be one.  But was Watney a space pirate?  Did he get it right?

By legal definition, piracy is “robbery or forcible depredation on the high seas, without lawful authority, done animo furandi and in the spirit and intention of universal hostility.” 61 Am. Jur. 2d Piracy § 1. Now, within that definition there is a lot of legal jargon, but I want to focus in on one important phrase that, I think, makes all the difference; “intention of universal hostility.”

Intent is an important part of any criminal law.  Put simply, there has to be an unlawful act coupled with the right mental state, and intent speaks to that mental state.  Piratical “intent includes the wanton plunder or malicious destruction of property.”  61 Am. Jur. 2d Piracy § 1. So to know if Watney had the right intent to be a pirate, we have to see if he either acted wantonly, or maliciously.  

Wanton, in Black’s Law Dictionary, is defined as acting “regardless of another’s rights.” Using that definition, Watney, by regarding his personal lack of right to the Aires IV lander, was explicitly negating any wanton intent he may have previously had.  So we can knock that off our list and move on to malicious.

Black’s Law Dictionary explains that to have malicious intent you must intentionally commit an unlawful act “without just cause or excuse.”  Not only is duress or necessity a proper legal defense, but I think we could all agree that if we were in Mark Watney’s situation, we would all be willing to sacrifice our employer’s lander for any attempt to get back home.  So, under the malicious intent analysis Watney also fails.  He simply lacks any criminal intent necessary to be a pirate.  He may call himself a pirate, but he isn’t one at heart.  

(To read about a real spirate, check out State v. Han Solo.)

Legal analysis is all that matters

I know what you are thinking, “this is why people hate lawyers, can’t you just enjoy the book/movie!?”  To answer your astute question — no.  Since I first learned that the words space and pirate could be placed next to each other to make a tangible thought, I have wanted to be a space pirate.  Since I first looked into the stars I yearned to explore the vast unknown, while simultaneously pillaging and committing all sorts of cool and fun crimes.  In the end, though, I am a realist, and I know it won’t happen me, or to you, for that matter. So the simple fact is, if I don’t get to be a space pirate, Mark Watney doesn’t get to be either.

(For more from Space Law experts, check out the Space Law Blog.)

From Matt Collins

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