New Mars Treaty?

Tuesday evening and I'm catching up with this week's issue of The Space Review in which Jeff Brooks proposes the creation of an International Agency for the Development of Mars.

While I fully support the goals of securing celestial property rights and promoting exploration of Mars, and I agree that we need a good regime for private space property, I am not sure that a new international authority to control the buying and selling of Martian land is the right approach. (Yick. More international space lawyers??)

(Although it was a whole other ball of space wax, I do note that the world's last attempt to put together an international regime covering global distribution of certain celestial rights was a resounding

Jeff's proposal is interesting. (Also along these lines is this earlier
proposal for the Moon.) Just some scattered thoughts...

Jeff's concern is, "the Outer Space Treaty presents a major problem for the advocates of space colonization: it makes impossible the buying and selling land on the worlds of the Solar System. Since no country can have legal sovereignty over moons and planets, no legal system can be in place to regulate the ownership of real estate. If nobody owns it, nobody can sell it."

While it is true
the treaty prohibits national appropriation (and here's the obligatory Art. II citation, "Outer Space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means"), nowhere does the treaty prohibit private appropriation.

Without reviewing the different theories of real property rights (common law vs. civil law, etc.) suffice to note some of the analyses of how private ownership may work within the framework of existing space law are decades old.

I fully agree that legal certainty as to property can be key for secure, peaceful and profitable space development. We do need a plan (my preference is national legislation consistent with the treaty), for settling property rights. It's a bit hard to fathom how the world -- or, as Jeff specifies, the "major spacefaring nations of the world" (an ever-expanding club, but shh, don't tell the others about the Mars market) -- would begin to negotiate his Mars shares scheme. Even if spacefaring nations fundamentally agree to the idea of giving jurisdiction over Mars property to an international agency -- and of course, a reasonable spacefaring nation or two might decline to subscribe for a minute to the practice of an international body selling shares of space property to speculators who could end up owning controlling interest in the Red Planet without developing or occupying it -- the devil is in the space details. How to parcel out shares? Who gets what, when, and how much?

Will the agency dictate terms that include a requirement investors undertake Mars missions or else sell their shares within in a certain time to those who will? Do we have a remedy as against slackers -- governments, companies, individuals holding rights to space property they intend never to touch? Enforcement issues could prove quite troublesome, after all, the object is to colonize space, not just make Earth-bound, space-indifferent speculators rich. But who is going to tell the speculators?

How much control will the international governing body exercise as against private interests? I own a co-op apartment in Manhattan which means I own shares in the corporation that owns the building, thus the board of directors can and will dictate to me what I may and may not do with the apartment, down to some very vexing details just short of making me wear socks on the wood floors and take my feet off the coffee table. Who wants anything at all like this on Mars?

Here is one example of a very different approach: a
proposal for a regime of real property rights for outer space that is consistent with the OST (since it is based on Art. VIII jurisdiction rather than a notion of territorial sovereignty) which spacefaring nations may adopt by way of legislation today and requires no new international treaties (other than, perhaps somewhere down the road an international registry of nationally recognized space property). And, for old fashioned space explorer types, it features no space rights without space boots, or at least vehicles or other objects, on the celestial body. (And yes, if you can't send up your own mission, you can always buy used Martian facilities, and all the property rights thereto, from other spacefaring entities.)

Law should protect and encourage investment. As to the financial wisdom of a Mars market -- including selling shares as a "novelty," to use Jeff's word -- I would defer to experts. He makes a good case that the scheme could help finance Martian development, an endeavor that everyone knows is breathtakingly expensive. But is there any worry this regime might actually work as an impediment to vigorous exploration by artificially inflating Mars land prices? I am not even qualified to guess. (All I know about investing is some folks are still counting their losses from that last dot com bust. Come to think of it, those traders were better off buying lunar deeds from Dennis Hope.)

I expect we will hear more ideas and creative thinking such as Jeff's as we pursue the goals of space exploration and settlement. For now, the OST has its strong critics, but it remains unlikely -- although not impossible -- that the world will any time soon abandon one of its most widely accepted treaties (last I checked, 98 parties to the treaty, including all space powers, and a few dozen additional signatories not yet ratified) for something that in the end, may not improve matters.

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