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SpaceX Mars settlement
A legal precedent much older than the Outer Space Treaty could support property rights claims for future Moon and Mars settlements. (credit: SpaceX)

Unwinding a conflict of treaties

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Contrary to long held beliefs misguidedly premised upon 1967’s Outer Space Treaty (OST), answers to questions like “who owns the Moon,” or, for that matter, Mars, will be decided under much older legal precedence, called Doctrines of Capture and Conquest. The latter, Doctrine of Conquest, is the focus of this essay.

Answers to questions like “who owns the Moon,” or, for that matter, Mars, will be decided under much older legal precedence.

Article II of the OST states, “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.” Article II establishes the cardinal rule of space that the celestial peremptory norm is res communis: belonging to no one, common to all, like “air, light, and the sea.” (An example of this argument is this essay, see also Res communes, Black’s Law (11th ed. 2019).)

However, by 1979 that sentiment had given way to economic and political realities as the UN crafted what is known as the Moon Treaty seeking to galvanize a legal framework over all celestial bodies. Importantly, the United States, China, and Russia are not Moon Treaty signatories. A primary rationale for this fact may stem from drafters’ attempts to “prohibit private companies from laying claim to lands on the Moon.” (see Dennison A. Butler, Who Owns the Moon, Mars, and Other Celestial Bodies: Lunar Jurisprudence in Corpus Juris Spatialis, 82 J. Air L. & Com. 505, 508 (2017).) This history primer is necessary to appreciate the ever so slight movement away from res communes toward terra nullius, “the land of no one, a territory not belonging to any particular country.” (Terra nullius, Black’s Law, (11th ed. 2019).)

The common law of discovery would be applicable to a previously unknown or uncharted territory. (See Jesse Dukeminier, et al., Property: Concise Edition, 10 (2d ed. 2017).) However, Mars is well studied thanks to missions sent by the United States and other nations. Consequently, discovery must yield to the common law of conquest, and once landed upon, annexed, and dominion exerted, a genesis, not an inchoate title is created: an important distinction between North American conquests over the native inhabitants and their genesis titles.

On October 28th, 2020, SpaceX published its terms of service contract for its Starlink service. One element caught many eyes pertaining to “Governing Law.” The move toward terra nullius gained momentum because this commercial contract of adhesion expressed the following in pertinent part:

“For Services provided on Mars, or in transit to Mars via Starship or other colonization spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, Disputes will be settled through self-governing principles, established in good faith, at the time of Martian settlement.”

Free planet: read no man’s land, terra nullius, blank slate; do you sense how this is unfolding? Enter John Locke and the 1689 sweat of the brow theory. (See Eric R. Claeys, Locke Unlocked: Productive Use in Trespass, Adverse Possession, and Labor Theory, February 21, 2021). In the case of John Locke, in a most basic interpretation, if one invests their energy and efforts into a body of land, that effort, and improvement, the sweat of their brow is the equity creating title visa vie dominion.

This most basic and primal tenant with respect to space law, I would contend, is the foundation of exploratory dominion, which is then further buttressed, alternatively, by the law of adverse possession. Knowing that several nations have conducted missions on Mars, the question is less about immediate discovery and improvement, and more aligned with assertion of dominion, and evidenced improvement.

Musk’s plans for “Mars City” are well known at this juncture. He wants to land, annex, build, improve, and along the way ferry one million people to staff and inhabit Mars City. This endpoint leverages outcomes of spacefaring countries walking away from the Moon Treaty and its private celestial ownership gaffe, creating the evolution toward recognition of a Lockean theory establishing ownership on Mars and beyond. In fact, David Anderman, former SpaceX general counsel, alluded to the fact that the Moon Treaty and Musk’s adhesive contract, wherein customers repudiate “Earth-based” governmental authority, sovereignty, or authority, read dominion, “may be on a collision course.”

In my opinion, when Musk arrives terra nullius on Mars the precedence in the Law of Property supporting his title is supported by centuries of doctrine and holdings.

An understanding fundamentally about adverse possession is in order within this discussion. For perspective, if John Locke were to establish a colony on Mars, define it by metes and bounds—stones on four corners, if you will—stays, squats, fundamentally possesses, improves, in an open and notorious manner, assuming the nations that have explored there haven’t countered, he possesses legal title for the property through actions premised upon Locke’s philosophical tenets. Specifically, if a party occupies a land continuously and with notice, title transfers by way of the occupation and sweat of the brow improvements. Normatively, we support this theory because static, wasting property does not serve society in any manner whereas increased valuations do, proverbially raising all boats with the tide. Moreover, common law teaches us superior title follows conquest, as exemplified through judicial stripping of American Indian title in properties. (See Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543 (1823).) The 200-year-old precedence exists pushing inferior claims aside.

In my opinion, when Musk arrives terra nullius on Mars the precedence in the Law of Property supporting his title is supported by centuries of doctrine and holdings far better placed than the European settlers’ conquests over American Indians supported under Johnson v. M’Intosh. From a masterless land he will emerge the leader and initial landowner of Mars City reaping profits from his conquest. Conversely, if the OST is upheld, undoubtedly open and notorious, Musk occupies as the adverse possessor gaining title in that manner.

Space law will be heavily influenced, insofar as the celestial bodies, by property law due to the conflicts between the Moon Treaty and OST, as well as the Lockean Mars annexation and colonization. The pathway for the development of space property law has been pre-established. The US needs to recognize this fact and rise to the occasion, turning exploration into our own conquests. There is too much at stake. China, for its part, has serious plans for deep space missions and is outpacing the US where it matters. This space race is largely going to center upon conquest and land grabs, seeking materials that can be mined, grown, and exploited to enhance earthly geopolitical political strength.

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