03 October 2016

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 (XXI); 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.

Thomas Gangale in Outer Space!
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