Hypothetical Martian Court Seal

Earth Law Won’t Apply on Mars and Here’s Why

I was perusing an article over at Popular Science entitled “Do Earth’s Laws Apply to Mars Colonists?” It’s a provocative question and given that human colonists on Mars will almost certainly happen within the next few decades, it is certainly poignant to start thinking about the legal landscape of far-flung settlements.

The story’s author, Sarah Fecht, presents a plausible, standard reading of applicable treaties and international law. Ultimately, she concludes that Earth law will certainly apply to Martian colonists. While Ms. Fecht is a heck of a science writer and editor, her analysis in this instance, shared by most who have opined on the subject, is faulty and fails to consider past epochs of human colonization. Being that we live in a country whose very existence owes to a bunch of people getting tired of being ruled by an authority 3,000 miles away, it’s fair to ask, “How long are people going to put up with law that is made 140 million miles away?”

While some might find this a strange topic to pique the interest of a personal injury law firm, predicting the future legal landscape of colonists beyond our fair sphere is a useful exercise for understanding how it works right here at home and how we arrived at it.

The Current Legal Landscape Regarding Colonies on Celestial Bodies

Ms. Fecht does a fantastic job of laying out the current legal framework regarding exploration of the solar system. The main governing document is what is known as the Outer Space Treaty or U.N. General Assembly Resolution 2222 (XXI). As of now, all major nations with space-faring capabilities are signatories to the treaty. Major points include:

  1. Freedom of navigation for people of all nations.
  2. Mutual assistance to ships and personnel in distress, regardless of nation.
  3. Acceptance of the applicability of international law, particularly the United Nations Charter.
  4. A ban on nuclear weapons and other weapons of mass destruction.
  5. Retained jurisdiction for countries over their citizens and those in their employ.
  6. International mediation of disputes
  7. A prohibition against claiming the moon or any celestial body for a nation.
  8. A prohibition against contamination of the earth due to space activities.

For nearly 50 years, this treaty has withstood the challenges of managing the competing interests of different nations as they use low-earth orbit for scientific and commercial purposes. However, the new challenges of permanent colonies and permanent populations who do not originate from or inhabit earth means that the Outer Space Treaty will quickly prove inadequate for the realities of an inter-planetary civilization. In fact, if our expectations of the applicability of Earth law are not tempered and modified by incorporating our experience with colonization on Earth, attempting to apply Earth law to Martian colonists could eventually lead to war.

Colonizing Earth as a Blueprint for Colonizing Mars

Leaving aside the very real issues of Native American rights, imagine that in the 15th century, the leading powers of Europe got together and decided that European law would forever govern any undiscovered continents. This treaty would strictly prohibit other countries or their citizens from owning any land in North and South America. It’s not too hard to see that such a treaty would have never worked. Leaving aside the concerns of the European nations, at some point the people who were born, lived in, and worked in the “New World” would need a legal system that was answerable to them and their needs.

The American Declaration of Independence

History shows that people don’t long obey laws that don’t represent their needs.

In fact, while each colonial population initially brought with it the culture and legal system of their mother country, those systems began to change almost immediately with the contact of the realities of life on another continent. As a practical matter, questions arose that needed quicker answers than the 6 months it took for messages to reach and responses to come from the homeland.

More simply, the most basic human choice is between law and anarchy. However, the mere existence of law does not preclude anarchy. Instead law must both be enforceable and accepted by those over whom it has dominion.

While colonies were initially companies or individuals given grants of lands from a mother country, disposing of that land was left to the individual proprietors, companies, or appointed royal authorities empowered to assign land ownership.

It wasn’t practical to have land registered in a country thousands of miles away. When disputes arose with neighboring colonists, it wasn’t always possible to have the home country decide the matter. In short, the experience of colonization demonstrates that law isn’t an instrument of far-away governments to make their affairs run smoothly, but a practical necessity for man to construct even the most basic society. More simply, the most basic human choice is between law and anarchy. However, the mere existence of law does not preclude anarchy. Instead law must both be enforceable and accepted by those over whom it has dominion.

Nothing illustrates this point more clearly than The Mayflower Compact. While it may be easy to dismiss this document as a 17th century mission statement, the fact of the matter is that before they even got off the boat, the Pilgrims realized the necessity of establishing a form of governance. While they were still nominal under the jurisdiction of English law, the nearest magistrate was 3,000 miles away back in England. Leaving aside questions of natural law, the most practical impetus to forming a government, which legally speaking they had no right to do, was the absence of an effective government.

The cost of the imposition of foreign law on lands that had culturally and geographically moved on from their mother countries was in most instances paid in blood.

Similarly, as early as 1619, 12 years after its founding, the Virginia colony established a House of Burgesses, the first legislature in what would become the United States, to develop laws and collect revenues for the upkeep and improvement of the colony.

While one could argue that for a short period of time after the first permanent colonists arrive on Mars, the Outer Space Treaty might serve as the framework for the Martian legal system, with individual laws and regulations implemented by an expedition’s sponsoring nation, it will not take long before such a system becomes unwieldy and inadequate to the needs of the colony.

While the United States was in the vanguard, pretty much every nation on Earth eventually tired of having their laws made in Europe and threw off the yolk of colonial masters. The cost of the imposition of foreign law on lands that had culturally and geographically moved on from their mother countries was in most instances paid in blood.

The Genesis of Martian Law

First, the very nature of the law is rooted in force and the exercise of force. While some may argue that justice or vengeance are the root of the law, implicit in both concepts is that force is applied in the name of righting a wrong.

For most nations, the origin of this force is in a monarch, who had the power to compel subjects to appear before them, or in their name. In a nation like the United States, built upon natural law, government and law-making are the birthright of everyone, but that birthright is delegated to create a monopoly on the use of force and the power of compulsion. Even if you don’t want to play ball with a legal system, there is a body, the government, who can scoop you up bodily and place you before the court.

Both our civil and criminal justices systems are based on the foregoing vengeance, in exchange for the chance at justice. This ensures that wrong-doing can still be punished, while ridding society of the scattershot nature of vengeance.

It should be obvious that this isn’t going to work on Mars. Certainly, a Martian colonist who chooses to return to Earth could be brought before a Terran court, but the likelihood for transit back and forth will be limited at best for some time. This means that the application of laws will necessarily take place on Mars, by Martians.

Additionally, Earth laws will be totally inadequate to the purposes of Martian colonists. In many respects, the law functions as an immune system for the larger body that makes up our civilization. Wrongs and feelings resulting from being wronged are the pathogen that constantly seeks to rip us all apart. Left unchecked, the human desire for vengeance destroys society. Both our civil and criminal justices systems are based on the foregoing vengeance, in exchange for a chance at justice. This ensures that wrong-doing can still be punished, while ridding society of the scattershot nature of vengeance. The difference is akin to treating an illness by cutting off painful body parts, or going through a process that more accurate diagnoses and treats the malady.

In fact, until modernity afforded us a surplus of resources to incarcerate those who perpetrate crimes, the criminal justice system was necessarily brutal. The scarcity of resources for most individuals rendered an absurdity the idea of removing criminals from the community, to be supported by the populace. When my own family faces the threat of starvation every couple years due to bad harvests, I certainly won’t be inclined to support a murderer in a cell. By even the most optimistic predictions, resource scarcity, on a scale unknown to mankind for hundreds of years will be the norm for Martian colonists. How quickly will the humane dictates of Earth law go by the wayside when they command over-worked, struggling colonists to support those who have attempted to prey upon that colony?

It wasn’t too long ago on Earth that those who broke the law were exiled, becoming outlaws, beyond the benefits and protections of the law. For the outlaws, this punishment was essentially a death sentence, since it was unlikely that an individual had the skills to survive for long outside of the community. It doesn’t take much imagination to see how readily and quickly any new Martian colony will revert to such ways, earthly prohibitions against capital and cruel punishments be damned.

When the judges issue warrants from 140 million miles away, they don't look so intimidating and will likely be unenforceable.

During the initial phase of colonization, when the colonists will literally depend on supplies from Earth, it may be possible to compel compliance under the threat of cutting off future shipments of supplies, but it is doubtful that such a measure would be considered moral by space-faring nations. It might not even be legal, since it would be tantamount to a communal death sentence. It would also make for terrible policy, because one can only imagine the grievances that population would have if they survived. Such a dispute could very plausibly be the catalyst for the first inter-planetary war in our history.

However, for any colony to stand a chance at long-term survival, it will quickly need to achieve self-sufficiency. Once this happens, governments on Earth will lose all of their leverage. When the judges issue warrants from 140 million miles away, they don’t look so intimidating and will likely be unenforceable.

The Legal Ramifications of Self-Sufficiency: Law Made by Martians for Martians

In her article, Fecht points out that the Outer Space Treaty prohibits nations from claiming parts of celestial bodies as their sovereign territory. She extends this to a questionable reading of whether or not it is permissible for private individuals to claim land on celestial bodies. Her reading is that it does not. As a practical matter, it doesn’t matter what the Outer Space Treaty says, once a civilization is established, there will by necessity arise a need for property-ownership and use. It may be cliche to say that possession is 9/10ths of the law, but when the nearest authority that can evict you is across a chasm of deadly space, it’s best to quote a Texan, “Come and take it.”

Once people call Mars home, it is inconsistent with law everywhere else on Earth to not acknowledge that newly-minted Martians the same property protections that those of us on Earth enjoy.

I agree with her reading as it applies earthly con-artists who attempt to make money by selling parcels of celestial bodies. These folks will be in for a rude awakening should they try to claim they have actual ownership of that property in either a Terran or Martian court, but the legal concept of terra nullius probably is best applied to newly occupied celestial bodies.

Herein lies one of the many contradictions in the Outer Space Treaty. While it specifically says that no nation can claim any part of a celestial body as its territory, it also states that international law applies in outer space. Terra Nullius, Latin for “no one’s land” is an established part of international law. This principle basically states that if no nation claims sovereignty over a particular piece of land, then whomever occupies the land is free to claim it.

The best example of this principle on Earth would be if we were to imagine that there’s a huge volcanic explosion under the Pacific Ocean and an island pops up that is not in the territorial waters of any nation. If a group of settlers from around the world show up and decide that its their country and a nation in its own right, there is nothing illegal about their actions. In principle, they should be the rightful owners.

Terra nullius doctrine doesn’t apply to the oceans, which are considered a common area under international law, as are all of the universe outside of Earth. Of course, we are able to consider oceans in this way because no one actually inhabits the oceans. The fundamental difference with the oceans, space, and a Martian colony is that the colony will be a permanent residence, not a transit point.

We could try and undo a couple hundred thousand years of human nature and declare that a man’s home isn’t his castle, if he’s on Mars, but we could just accept the fact that common property just isn’t going to work once colonies get going. Once people call Mars home, it is inconsistent with law everywhere else on Earth to not acknowledge that newly-minted Martians the same property protections that those of us on Earth enjoy.

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A self-sufficient Martian colony will undoubtedly seek the means and have the right to alter its environment. This troubles some, because as Ms. Fecht writes, “If Earth microbes take root on Mars or Europa, we may never have the chance to find out if those worlds ever hosted alien life.” While this may be a concern to scientists, it is doubtful that it will be sufficient grounds to supersede the needs of Martian colonists to make their environment more conducive to their well-being. Thankfully, Ms. Fecht doesn’t fall into the trap that other writers do of concluding that the Outer Space Treaty prohibits contamination of other worlds, because the Outer Space Treaty only prohibits the contamination of the Earth with whatever we happen to pick up in space.

The fact of the matter is that once humans are on Mars, whether for scientific research, or colonization, the planet will be contaminated sooner or later. Human beings simply carry too many microbes for that to happen. If history teaches us one thing, it’s that wherever humans go, our bugs are bound to follow.

What all of this means is that necessity, circumstance, and human nature will combine to render Earth law null and void on Mars. While the initial Martian colonists will take with them the legal notions of Earth, the law that grows from their new world will be uniquely Martian.

The most interesting part is that the Outer Space Treaty can be plausibly read to require precisely this outcome. As mentioned before, the treaty requires that activities on other celestial bodies should comport with international law and, specifically, the United Nations Charter. Hidden deep within the very first article of the United Nations Charter is this:

The Purposes of the United Nations are…2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

The crucial point is the principle of self-determination. Some might argue that the Outer Space Treaty skirts the issue by making all potential colonists subject to the jurisdiction of their home country, but as has already been noted, that jurisdiction cannot be effectively exercised over 140 million miles. Self-determination, the larger principle, will apply as much to Martians as to any group of people on Earth.

If a conflict between treaty obligation and natural rights (particularly those spelled out in the United Nations Charter) exists, it appears that even the Outer Space Treaty demands that such conflict be resolved in favor of rights enumerated in the U.N. Charter. The principle of self-determination will be why Martian law, not Earth law, will rule Martians.

One thought on “Earth Law Won’t Apply on Mars and Here’s Why”

  1. The Real Reason Earth Law Won’t Apply on Mars

    Copyright © 2016 by Thomas Gangale

    Here’s the real reason Earth law won’t apply on Mars: there is no such legal term. One may talk about international law and national law as applying to outer space, but there is no such thing as “Earth law.”

    Actually, Jeffrey Carr’s article is a political manifesto and not a legal treatise. Throughout his article, Carr does not cite any specific language of international space law or even demonstrate any familiarity with it. He mentions in passing only one substantive international legal instrument pertaining to outer space, to wit, the 1967 Outer Space Treaty. He also mentions U.N. General Assembly Resolution 2222 (XXVI); this was essentially “wrapping paper.” the document by which the General Assembly announced the opening of the treaty for signature.

    Writing in reaction to a recent Popular Science article, Carr asserts, “Sarah Fecht, presents a plausible, standard reading of applicable treaties and international law. Ultimately, she concludes that Earth law will certainly apply to Martian colonists.” In fact, nowhere does Ms. Fetch make such a statement in her article. This is a misrepresentation, but it does give Carr a political soapbox to stand on for a few minutes. “Ms. Fecht is a heck of a science writer and editor,” he writes. She is not an attorney, which would make it easy to scoff at her article, were it not for the fact that throughout the article she quotes Frans von der Dunk, Professor of Space Law at the University of Nebraska-Lincoln. Meanwhile, Von der Dunk’s name is conspicuously absent from Carr’s article. That’s right, he never mentions, much less take issue with him, not even once! Again, Carr has no legal argument, just political rhetoric.

    So what are his politics? That Martians should have their own laws and govern themselves. All right, do I hear a dissenting opinion? How about you, Mr. or Ms. America, are you pro-Martian or anti-Martian?

    Even Carr’s political argument is a house of cards, drawing analogies from “Colonizing Earth as a Blueprint for Colonizing Mars.” Why ever would we choose to have the barbarous past of European colonization guide our future efforts to colonize Mars? Shall we also return to burning witches and owning slaves, as they did back then?

    Nowhere does Mr. Carr explain why “the Outer Space Treaty will quickly prove inadequate for the realities of an interplanetary civilization,” there is merely his ipse dixit. It is true that international law, including the Charter of the United Nations, is transmitted to outer space via the preamble of the Outer Space Treaty. It is also true that States Parties bear international responsibility for the outer space activities of the natural and juridical persons under their jurisdiction. However, I have yet to see a legal treatise which concludes that any extant law prohibits future Martian colonists from establishing a House of Burgesses. Indeed, since the beginning of the 20th century, the principle of national self-determination has increasingly challenged a founding principle of the Westphalian nation-state system: state sovereignty, although it should be made clear that this has been a developing political norm and is not hard international law. Carr appears to assume that States on Earth would not grant self-government to its outer space colonies, yet the 20th century example was one of massive decolonization, mostly by mutual consent of the metropole and its colony. Today there remain a number of non-sovereign, self-governing territories on Earth, from Puerto Rico to Greenland; if they clamored to throw off the “yolks” [sic] of their colonial masters, I rather suspect that the metropole’s response would be, “Yes, ma’am, would you also like the whites along with the yolks?” I strongly doubt that these would be occasions for war. In any case, the question of when a “colony” becomes a distinct “people” is a political one, not a legal one.

    Carr discusses “The Genesis of Martian Law” in very broad strokes, “that the application of laws will necessarily take place on Mars, by Martians.” No argument there; every incorporated municipality has its ordinances, after all, and some homeowners’ associations have enforceable covenants, conditions, and restrictions. But Carr neglects the hierarchy of law, that some law is subordinate to higher law. It is this sense that national law and international law does and will continue to apply to outer space, the former because it is the law of the sovereigns, the latter because the sovereigns have given their consent to it by treaty. The nature and extent of future Martian “sovereignty” is in the realm of hypothetical “meta-law.”

    Carr also assumes that “Earth laws will be totally inadequate to the purposes of Martian colonists.” Possibly he imagines that American colonists burned all of their British law books, hovering around the bonfire to warm and dry themselves following the Tea Party in Boston Harbor. Is it not true that much of American law derives from English common law, and that even some Louisiana law has its roots in French civil law? Does he imagine that a criminal assault or a civil injury will be held to be something entirely different in the eyes of Martian law? Similarly, does he imagine that Martians will be free to flout international criminal law with impunity and to engage in piracy, slaving, genocide, drug trafficking, and war crimes?

    Carr declares, “As a practical matter, it doesn’t matter what the Outer Space Treaty says…” Um-hum. I would delighted to see Carr declare in court, “Your Honor, it doesn’t matter what the law says.” This is not practicing law in any meaningful sense.

    Carr also takes issue with the science writer: “In her article, Fecht points out that the Outer Space Treaty prohibits nations from claiming parts of celestial bodies as their sovereign territory. She extends this to a questionable reading of whether or not it is permissible for private individuals to claim land on celestial bodies. Her reading is that it does not.” However, this is not her reading, rather her report of Professor von der Dunk’s reading, and if Carr were really interested in von der Dunk’s views, he would get the straight dope from the professor’s many law journal articles. Consult the original source! You are certainly not going to find the law in Popular Science or on blogs.

    Let’s use Carr’s own argument that “the very nature of the law is rooted in force and the exercise of force.” Let’s say that you build a ranch on Mars and claim certain land as property. With whom do you register your claim? For any state to register or to in any way recognize such a claim would be a “national appropriation” in violation of Article II of the Outer Space Treaty. Neither is there a United Nations registry of outer space claims, although one may surmise that such a registry might have been an outcome of the future regime to which the 1979 Moon Agreement refers (the negotiation of that regime has yet to occur). A claim of property without legal recognition by a competent authority has only the claimant’s ability to enforce his fact of occupation. Sure, you can “claim” in one hand and spit in the other, but what is the worth of such an unrecognizable claim? So Fecht has a point as far as she goes.

    However, what is not discussed either by Carr or Fecht is that other provisions of international outer space law express the principle of freedom from interference by other parties, and a number of space jurists, including von der Dunk and myself, see the possibility of developing property rights, including exclusivity and transferability, from such principles. I also argue the basis for outer space property rights in natural legal theory, which codified international space law nowhere negates. The difference between us and Carr is that he doesn’t see this possibility and so he would rather just throw the book out the airlock. Again, this is not practicing law in any meaningful sense. If you want property rights law and any other sort of law on Mars, take a tip from this Californian: “Come and make it,” but knocking law which you don’t understand doesn’t make for a persuasive case.

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