Martian Law: Is Mark Watney Really a Space Pirate?

Is Matt Damon really a space pirate? And could Jesssica Chastain really be subject to a court martial?

In The Martian, astronaut Mark Watney and his crewmates onboard the Hermes face a relentless series of challenges in order to rescue Watney from the harsh surface of Mars and return him home. For the most part, these challenges are technical and scientific – how do you grow food on Mars? How much fuel is needed to alter a spaceship’s orbit? How much disco can one man listen to before he goes insane?

Because explanatory journalism is all the rage, the internet is chock-full of explainers which discuss the relative plausibility of the scientific solutions they come up with.  Which is a good thing, because despite a life-long love of space, your humble correspondent is grossly unqualified to challenge the science behind The Martian.

But in the (distant) background of the technical challenges, both Watney and the crew of the Hermes must confront legal challenges as well.  And this particular newly-minted lawyer/former pirate-hunter is more than happy (and at least nominally qualified) to discuss the plausibility of these instead.

Let’s law the s**t out of this thing.

MarkWatneySpacePirate

Is Mark Watney really a space pirate?

As he sets out on his months long journey from the HAB to the Mars Ascent Vehicle, Matt Damon demands that NASA refer to him by his new name “Captain Blondebeard.”  This is in honor of both his fresh new alone-on-a-planet beard and the legal conclusion he’s come to:

“I’ve been thinking about laws on Mars. 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 aplies. So Mars is international waters. Now, NASA is an American non-military organization, it owns the Hab. But the second I walk outside I’m in international waters. So 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.”

So there’s a couple leaps of logic here, and Watney is at least on the right track because he realizes there are (at least) two separate questions behind every legal issue:

First, what law applies?

And second, what does that law say?

Watney concludes that the Law of the Sea applies to his situation.  This probably isn’t quite right.  Though the so-called “Moon Treaty” explicitly attempted to model the Law of Space on the Law of the Sea, that Treaty has thus far been signed by only a handful of nations, none of which have their own ability to launch astronauts into space – and doesn’t include the United States, so it’s not binding on Watney.  While there *is* a treaty that says no nation will lay claim to any celestial body, that doesn’t mean that maritime law neccesarily applies: Antarctica isn’t owned by any nation, but that doesn’t mean the Law of the Sea applies to the South Pole, it just means that treaty law and international agreements govern.

As a result, figuring out what law applies as a general matter on the entire surface Mars is actually a fairly tricky (and mostly unresolved) question.

Sovereign U.S. almost-soil.

Sovereign U.S. almost-soil?

But good news!  We can actually dodge the hard question and answer an easy one, because as it turns out, all that really matters is the law that governs the MAV (the lander that Watney is going to “pirate”).  The Outer Space Treaty of 1967 (to which the U.S. and most other space-faring nations are party), provides that when a State like the U.S. launches an object into space, the U.S. would “retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.

So it doesn’t matter that the MAV is unmanned – it’s still U.S. property and U.S. law still applies onboard.  This means that he’s not really a pirate: he’s a U.S. government employee making use of U.S. government property.  At most, he’d be guilty of some version of misappropriation or theft of government property, but he wouldn’t be a pirate.

Even if the Law of the Sea or some similar regime did apply, Watney still probably can’t live up to the fearsome reputation that’s implied by his self-given title of Captain Blondebeard.  He says that he’s a pirate because he’s taking a craft without permission in international waters.  Mere theft or taking of a vessel, however, isn’t technically piracy.  Piracy is defined as robbery at sea, see, e.g. U.S. v. Furlong, 18 U.S. 184 (1820), and robbery requires the use of force or threat of force.

So if you find a boat drifting out in the ocean and take it without permission, you’re not necessarily a pirate, because you didn’t use force or threat (though you may have broken other admiralty laws). Similar principles would presumably apply here – the MAV is unmanned, so oboviously no force or threats are required.  Even if the MAV had belonged to Russia or China (like the various spacecraft commandeered by Sandra Bullock’s character in Gravity), he could probably take it without technically being a pirate, because the act would be at most theft, not robbery.

Even better, whatever crime Watney is guilty of by “stealing” the MAV, he has an extremely strong case for a necessity defense.  Necessity provides that a crime can be justified and excused if committing the criminal act was necessary to prevent some greater harm to the defendant or others: the canonical example is borrowing your neighbor’s garden hose to put out a fire.  Here, Watney probably meets all of the elements – there was no adequate legal alternative, stealing the MAV didn’t create any greater harms, and Watney did not substantially contribute to the emergency in the first place.

So never fear Captain Blondebeard – you are almost certainly safe from prosecution for stealing the MAV.  But will Watney’s colleagues on the Hermes be so lucky?

Hermes

Could the crew on the Hermes really be subject to court martial for mutiny?

Millions of miles away from Mars, Commander Lewis (played by Jessica Chastain) and the crew of the Hermes are faced with a similar question of law-breaking. After receiving a coded message, the Hermes crew discovers that NASA has decided not to alter the trajectory of the Hermes so that they can go recover Watney, opting instead for a last-ditch effort to send Watney a rocket full of food.  Realizing that the “Rich Purnell” maneuver has a much better chance of success, the crew discusses whether to disobey NASA’s decision.

During the discussion, Commander Lewis notes that as military members, her and Michael Peña’s Major Martinez could be subject to court martial if they execute the maneuver – they are subject to the military code, and defying NASA in this way could be seen as “mutiny.”

Here, Commander Lewis is much closer to the truth than Watney’s piracy-analysis.  Despite being on a civilian mission, Commander Lewis and Major Martinez are most definitely subject to the Uniform Code of Military Justice (UCMJ), which applies to all military personnel regardless of where they might go.

ChastainPenaTheMartian

The question, then, is whether or not taking control of the Hermes is really a “mutiny.”  Article 94 of the UCMJ defines the crime, and provides that any person subject to the UCMJ who “with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty . . . is guilty of mutiny.”

That probably fits what Commander Lewis and Major Martinez do. They are definitely acting in concert, and their action is at the very least against NASA’s intent that they continue with the mission as planned.  There are two wrinkles, however,

First, at the time Commander Lewis gives the order to defy NASA, they haven’t actually received any orders yet – NASA hasn’t told them anything, so NASA hasn’t technically ordered them not to fire the engines and execute the maneuver.  And second, we don’t know is how much implicit authority Commander Lewis, as Commanding Officer of the Hermes, has in piloting the ship.  It may be that NASA has a standing order which says “thou shalt not fire the engines without permission,” in which case, yeah, mutiny.  But it’s also possible that the commander of the mission has been given broad discretion to maneuver the vessel as she deems necessary to accomplish the mission, or as is key here – to rescue a member of her crew. In that case, the lack of a contrary order by NASA could provide a defense to mutiny.

The problem with this argument is that Commander Lewis’ actions show that she clearly intended to defy the authority of NASA, whether they had given an explicit order or not: disabling the communications systems and remote override demonstrate that pretty clearly.  While the commander of a interplanetary-spacecraft would probably be given a lot of latitude, there’s almost certainly some sort of caveat along the lines of “if you can contact NASA before acting, do that first.”  So if the US Government were so inclined, Commander Lewis and Major Martinez could get some handcuffs along with that ticker tape parade when they come home.

The “good” news is that they wouldn’t necessarily be alone!  Commander Lewis implies that only the military members of the spacecraft are subject to the Uniform Code, but she might be wrong on that score.  Civilians are not normally subject to the Code, but there is a narrow exception for  “persons serving with or accompanying an armed force in the field” during wartime or a “contingency operation.”  While that authority usually only extends to the battlefield, you could probably argue that the Hermes is the equivalent of a warship, and that a manned mission to space is exactly the sort of “contingency” operation which requires at least the potential for the imposition of military discipline.  So the entire crew of the Hermes could technically be guilty of mutiny.

SayWhat

Say what now?

The real good news is that politics usually wins out over technical legal arguments. Commander Lewis and her crew can be pretty confident that neither she nor anyone else will never be prosecuted for their decision, because it would be too embarrassing to admit that the astronauts had defied authority in this way.  Indeed, in the book and movie, NASA pretends that the Purnell maneuver had been the plan all along, and presumably the “mutiny” is never brought up again.

So never fear, astronauts – you focus on sciencing the s**t out  of things, we’ll handle the law, and we can all come home safe.

The author is an officer in the US Navy, but the opinions expressed in this article are solely his own, and do not reflect those of the United States Navy, Department of Defense, or US Government.  The legal opinions offered in this article are provided for informational and entertainment purposes only, and should not be relied on during any future voyages to sea and/or space.

9 Comments on “Martian Law: Is Mark Watney Really a Space Pirate?”

  1. Tulse #

    newly-minted lawyer/former pirate-hunter

    Ben, you have all the awesome.

    With regards to mutiny, I thought that NASA was a civilian organization, and thus not covered by military law. Yes, Lewis and Martinez are military personnel, but they are on a civilian mission. If they were flying a commercial cargo jet and implicitly defied the orders of their civilian employers, would they be subject to military justice? I realize that NASA is kind of a grey-area, as it is both a government agency and has a history of (most of) its astronauts being military, but I wonder if it is really in the chain of military command, and if the orders it gives its crew are military orders.

    I suppose that, even if it isn’t directly in command, there is likely something that the military could do to someone who defied civilian authority like this — would something like “conduct unbecoming” apply here?

    Reply

    • Jerry Brown #

      Regardless if it is Civilian or not, they have been appointed to be their operational superiors in a Chain of Command and are therefore obligated to follow their lawful orders as any other, as it is a duty of their office as military astronauts. The Secretary of the Navy/Army/Air Force up through the President are all also civilian, but are appointed to be their superiors, the same concept applies here.

      Reply

  2. Adam. #

    Isn’t one of the astronauts on the mission a German? I believe I remember seeing the flag on one of their shoulders. Would they be subject to the same laws that the American crew would because of the American ownership over the Hermes?

    Reply

    • Michael #

      Yes, their navigator (I keep wanting him to call him Krieger, but that is from Archer) is German.

      Reply

      • Erik #

        Yep, he’s called Vogel

        Reply

  3. Jerry Brown #

    “First, at the time Commander Lewis gives the order to defy NASA, they haven’t actually received any orders yet – NASA hasn’t told them anything, so NASA hasn’t technically ordered them not to fire the engines and execute the maneuver.”
    It is standard practice, that “mission orders” have terminating aspects in them. It could be to achieve an objective or complete a task. It would be almost an absolute guarantee that a Commander’s orders for a mission like this would include, “and return the Crew and the Hermes to Earth orbit…” or some variance that clearly makes it known, they are to return to Earth. Mission orders being so open ended like suggested just do not happen. They have an objective-means-goal, and when those are achieved or the inability to achieve them has occurred, the mission ends, unless otherwise directed.

    “And second, we don’t know is how much implicit authority Commander Lewis, as Commanding Officer of the Hermes, has in piloting the ship.” Also this can be very safely assumed based on standard practice of Naval Vessels. The Captain has limited reign to operate his vessel as desired, and in extremis may operate beyond those limits to safe the vessel. The Captain may also violate normal protocols in immediate situations requiring immediate response (usually based as well on existing guidance) to render assistance or defense to others. If the Captain can however, seek and receive or be denied higher authority to act beforehand THE CAPTAIN MUST seek that authority before acting. If they do act, their actions are subject all prudent scrutiny. In short, the captain is the master of the Vessel, but that latitude does NOT give them absolute free reign, they still have a boss to answer to too and are limited in what they can truly do.

    Reply

  4. Cal #

    Couldn’t Watney as a colonist of Mars, create a new country and as the only citizen, elect himself president, then make up any laws he wanted to including owning anything abandoned on his land?

    Or he could make up piracy laws and break them, thereby fulfilling his dream of being a space pirate.

    Reply

  5. Matthew #

    There is one unanswered question I still have after reading this article: Why can Mark Watney not be given express permission to take the Ares IV lander until he is on board the Ares IV? By this point in the film, he is in communication with both NASA personnel on Earth and (indirectly, via NASA) the crew on board the Ares IV. Can he not be given permission in the form of electronic text? Must formal permission / formal orders only be given in either written form on paper or via voice communication (in person or using radio transmission)?

    It is my understanding that orders regarding nuclear strikes launched from submarines are sent via text format messages by way of radio transmission (then authenticated using predetermined authentication codes that are kept on board). Why can’t other orders (pertaining to vastly less serious subject matter) be sent in a similar fashion (even without authentication codes, which NASA is unlikely to have established for such matters)?

    Reply

    • Andrew #

      It made more sense in the book – Watney gets careless and fries Pathfinder while modifying the rover. Its plausible that, at that point, NASA had discussed the plan with him but not sent any formal instructions to commandeer the Ares IV MAV. In the film this never happens and he actually discusses the space pirate bit with with Mindy.

      Reply

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