A Friday in August 2020 a colleague from the Department of History sends me an email. Elon Musk has tweeted about bureaucracy which is our shared research topic (mine: contemporary; his: the middle ages). The gold nugget Musk offers us is this: “Bureaucracy is inherently Kafkaesque” (Musk on Twitter 20 August 2020). Someone replies: How will Mars be governed? & will there be currency on Mars. Immediate reply from Musk: Direct democracy. Short, comprehensible laws voted on directly by the people. Snake Jazz. Then a bit later: Or a self-perpetuating autocracy based on a farcical aquatic ceremony where the king is chosen by a wise panzer in a lake. That made my day, because, well… either you get it or you don’t. But as I read on through the twitter replies I fail again to understand twitter and its said importance: it’s the Soylent story all over again, except the people in Musk’s string lack the Soylent community’s wit and humor and frankly, more than one tweet is down-right disturbing.
The initial question about government on Mars though is one I’ve wondered about myself. It has been treated often in sci-fi literature and Kim Stanley Robinson’s Mars trilogy offers as good an estimate as any: A period of scientific egalitarianism followed by corporate exploitation, then transnational attempts to mediate, onwards to a civil uprising followed by a return to business as usual before something new and distinct gradually evolves out of the friction of interest over a couple of hundred years. Meanwhile in the world I move about in physically: Who gets to legislate on Mars? I call up the Head of Office in the branch of the Danish government administration responsible for space law. My questions, however, are still too unfocused to yield any interesting answers (Who decides who gets to decide on Mars? Who decides how many satellites can be send up in lower Earth orbit?). The Head of Office refers me to a UN treaty from the 1967: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, or in short The Outer Space Treaty. He tells me to get back to him when my questions are more precise. I have already got The Outer Space Treaty sitting around in a pile of documents somewhere in my office having previously concluded I should look at it but then forgotten. It’s another month before I return to it. In the meantime I’ve found an additional four related treaties adopted by the UN’s General Assembly and signed by members States, including the Moon Agreement from 1984.
Reading a legal document is unlike reading any other text I know. It’s deceptive because unlike for instance coding or mathematics which are upfront about being different, a legal text makes use of ordinary language and is constructed using sentences with are legible to a non-trained reader. For instance:
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. (Outer Space Treaty 1967, Article II)
You might think you know what that means. Yet any part of the above sentence is the outcome of lengthy discussions. Without knowledge of those discussions, especially the objections raised and disagreements mediated, you might take ‘by means of use or occupation’ to mean something it in fact does not. At the same time legal texts are embedded in a network of other legal texts which frame how they should be interpreted. There is a hierarchy of legal texts which means that certain aspects already dealt with in a superior legal text need not be mentioned again but serves as premises for further documents. For instance: the Outer Space Agreement is formulated as a set of articles I-XVII. But there is a preamble to the treaty which is ‘recalling’ and ‘taking into account’ a number of previous resolutions adopted by the UN general assembly. For instance, the Outer Space Agreement is:
“Recalling resolution 1884 (XVIII), calling upon States to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction […] adopted unanimously by the General Assembly on 17 October 1963” (Outer Space Treaty 1967, Preamble).
The Moon Agreement of 1984 in turn is ‘recalling’ the Outer Space Treaty of 1967 to which it is subordinate. Hence where to begin? You wanted to understand the single sentence in The Outer Space Treaty’s article II and ended up having to acquaint yourself with all previous legal text regulating the area of your interest including the negotiation history and established precedence of interpretation. Well either you become a legal scholar or you read a carefully selected pile of texts and try to get the gist of it all while remembering with humility that it is just the gist you get.
I will focus my reading on the Moon Agreement, or Agreement Governing the Activities on the Moon and other Celestial Bodies, because the gist that I get reading it is that this is the most important treaty in terms of understanding who might get to govern Mars. At the same time it is a problematic treaty in that neither the United States, Russia, nor China has signed it which considerably weakens its status as international law.
As in the other four treaties that precedes the Moon Agreement (and on which it therefore builds) it aims to ensure peaceful, scientific exploration ‘for the benefit of mankind’ and to prevent that the Moon or any other celestial object becomes a venue for military aggression or international conflict. But there are new thing as well: it is here that principles about avoiding contamination of the Moon “through the introduction of extra-environmental matter” (Moon Agreement 1984:7.1) is introduced, and also the freedom to place “personnel, space vehicles, equipment, facilities, stations and installations anywhere on or below the surface of the Moon” (ibid: 8.1.b) in ways that do not impede on other people’s freedom of movement or access (ibid: 9.2).
In the treaty’s article 11 the Moon is declared “common heritage of mankind” (ibid: 11.1) and the gist I get is that this is the key article in the document and also the answer to who at least wants to get to govern on Mars and perhaps even the reason why it has not been signed by the major players. Remember that “the provisions made in this Agreement relating to the Moon shall also apply to other celestial bodies within the solar system” (ibid: 1.1). That means not only Mars but also the asteroids. In article 11, section 4 it is stressed that no State, person or organizations of any kind can exert property rights over the surface or subsurface of the Moon, stressing that:
The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface, shall not create a right of ownership over the surface or subsurface of the Moon or any areas thereof (Moon Agreement 1984: 11.4).
Section five obliges the signatory States to establish “an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon” (ibid: 11.5). Section six obliges the States to inform the UN and the public of any natural resources discovered. Section seven states that the purpose of the international regime of governing the resources exploitation is to allow for “orderly and safe development of the natural resources of the Moon” (ibid: 11.7.a) and also an “equitable sharing by all State Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration” (ibid: 11.7.d). So in terms of government and taxes on Mars… ought this mean that the UN gets to govern and that any wealth Musk digs up out of the subsurface of Mars and any values mined by Jess Besos out of the asteroids in the future are to be distributed across the UN member states? Hardly. Remember I’m just guessing based on the gist of it. Yet I think I have a better set of questions to explore now, including “What is the significance of the Moon Agreement’s article 11 for private investment in outer space?” and “What is NASA’s and ESA’s position on the Moon Agreement including dare they have any?”.