Hello, everyone! Crohn’s Disease continues to be a massive pile of suck, but Mars waits for no man, so the blog goes on — and, for the first time, with excerpts from my novel-in-development, The Secret of the Stars!

In “To Secure These Rights”, it was shown that in order to maintain order in a Martian colony, the Martians must be able to govern themselves. Thus, one of the greatest science fiction tropes – a ‘Martian Revolution’ against Terran colonialism – would be prevented from occurring by having the Martians be independent to begin with. But if, as has been earlier established, the colonizing power must have private origins in order for the venture to succeed, this would necessarily involve a unilateral declaration of independence. Such an act may well be illegal. Here we refer to Article II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter referred to by the common title of the Outer Space Treaty):

“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.”[1]

The first reaction one might have to such a prohibition is indifference. Our hypothetical Red Planet Foundation is not a party to the Outer Space Treaty, so how can it be bound by the treaty? But evading this prohibition may be more complicated, due to the provision of Article VI that:

“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”[1]

Therefore, whichever Terran nation the Red Planet Foundation was headquartered in would be responsible for the Red Planet Foundation’s activities in the eyes of the law, and therefore bear the burden of preventing the Foundation from engaging in illegal ‘appropriation’. Every nation which has ever launched a spacecraft into orbit has signed the Outer Space Treaty, and of those nations, only Iran has failed to ratify the same.[2][3] Therefore, if the Red Planet Foundation hopes to become sovereign over the colony it creates, it must take one of two roads: either develop a launch capability in a non-spacefaring nation, launch all colony-building missions from there, and convince the government of that nation to remain outside the treaty and recognize the Red Planet Foundation as a legitimate government, or convince the government of a spacefaring nation in which they are headquartered to ‘reinterpret’ (or flout) the treaty’s requirements, and recognize the Red Planet Foundation as a legitimate government regardless of what other countries believe. Both roads are fraught with danger for our hypothetical colonists.

For the first road, it is worth noting that Latvia is the only developed nation which is not a party to the Outer Space Treaty, and that it has two rather severe restrictions on any possibility of it becoming a haven for our foundation: it is a member of the European Union, whose European Space Agency is bound by the requirements of the treaty, and it is the neighbor of Russia, who, being to Latvia’s east and an economic and military giant, exercises a virtual veto power over any independent space ambitions Latvia might have. All other nations which are not signatories of the treaty are at low levels of economic development, with the sole exception of Oman, which is an absolute monarchy whose authoritarian institutions should have no contact with a future Martian colony[4]. The Red Planet Foundation would have to develop such a nation’s spacefaring capacity itself, which would not only raise the question of how such a project would be funded prior to colonization beginning, but also place pressure on that nation to accede to the Outer Space Treaty. The Foundation’s insistence on their host remaining outside the treaty would inevitably provoke suspicion about the Foundation’s aims, and likely lead to the revelation of their plans to declare independence.

Very well, then. How about the second road?

This road is more plausible, not only because it does not require a private foundation with no revenue streams to transform a third-world country into a major spacefaring power, but because international law is like the pirate’s code: it is not so much a set of rules as a set of guidelines. No international police or military body exists to actually prevent the United States, for instance, from unilaterally declaring that it is ‘interpreting’ the prohibition on national appropriation to only apply to nations attempting to rule one body from the comfort of another, and that it in no way prevent colonists from ruling themselves. Of course, other nations may express their disapproval, but the only two actual enforcement mechanisms which exist in international law are sanctions and war, neither of which most nations would be willing to apply to the United States over something as seemingly trivial as outer space law.

This road, however, is not desirable for a number of reasons. First of all, because it requires a pretty obvious misinterpretation of a treaty, it is dependent on the goodwill of the government which hosts the Foundation’s headquarters: a, say, Newt Gingrich administration which approved of the colony could easily be followed by a, say, Bill Nye administration which reverted to the treaty’s proper interpretation and denied the Foundation a license to fly. More importantly, however — because, after all, if enough pro-colony administrations hold power in a row, eventually inertia will be enough to protect the colony from hostile action — this legitimizes ignoring international law as a means of achieving space policy objectives. The Foundation would be viewed as an extension of the power which hosted its headquarters, which would certainly lead to rival nations being hostile to the Foundation, and possibly lead to the host viewing the Foundation as a tool of its foreign policy. The decay of the norms in space law could lead to less controversial provisions of the treaty — such as astronaut rescue requirements or the ban on weapons of mass destruction[1] — being ignored as retaliation, furthering the decay of space into a lawless sandbox for the imperialist powers of Earth. If I may editorialize, this is precisely the opposite of our aim: it bears repeating that although it’s fun to write about space wars, we don’t want them to actually happen.

So if the treaty cannot be evaded or ignored, and democracy in the colony precludes compliance, what can be done? In searching for a solution, it is worth noting that the treaty is a product of the 1960s, and that the myriad restrictions on private activity in space were most likely the brainchild of the USSR, hastily agreed to by the US and the UK because substantial private activity in space was not dreamt of at the time. But in their haste to prevent outer space from becoming yet another powderkeg to be sparked by the Cold War, the western powers failed to consider that, by prohibiting both national and private efforts at colonizing outer space, they had frozen the solar system in time as a giant nature preserve. Beautiful, like Antarctica: but of what use? And unlike Antarctica’s special status, outer space’s status as no-man’s-land not only lacks a protective function for civilization on Earth, but actively harms human well-being. The only road ahead for space colonization under such a system is one which is managed by the United Nations, and one would have to be a fool to trust such a society-shaking project to them.

Quite simply, the treaty is a mark of a bygone era, and must be updated or replaced.

Such a revision to the Outer Space Treaty might be entitled the Mars Treaty. This is exactly what Kim Stanley Robinson does in his Mars Trilogy, although in his case the treaty is designed to create a framework for an international set of colonies under UN guidance, and, in keeping with the trilogy’s anticapitalist themes, is a dead letter against corporate power[5]. Instead, a treaty or treaty revision designed by the Red Planet Foundation might provide for settlers to be able to govern the land they actually live on, while either preventing or managing a ‘land-rush’ situation. This, of course, is where the Foundation’s nonprofit (and eventually governmental) status is paramount: if the Foundation were a for-profit concern, nobody would trust a treaty they drew up to make themselves rich, and we ourselves could not trust that it was written with the best interests of the colony in mind.

Neither of the above situations quite describe what happens in the backstory to my science fiction novel, The Secret of the Stars. The Secret of the Stars is designed to be the first book of a trilogy about the colonization of Mars and the conflicts which emerge between Earth and Mars during the late 21st and early 22nd Centuries. In short, The Secret of the Stars is about the Martian nationalist movement, which organizes nearly all of the settlements on Mars into a unified government in order to effectively oppose Terran claims on the plans to the holy grail of Martian industry: the nuclear fusion reactor. This amalgamation of the Martian colonies into a single political unit is, at first, effectively unopposed by Earth powers, because they had some decades earlier signed off on a treaty — the Treaty on Principles Governing the Creation of States in Outer Space, including on Mars and Other Celestial Bodies, colloquially referred to as the Mars Treaty — which explicitly acknowledged the rights of space settlers to govern themselves. Andrew Powell, the first man to set foot on Mars and, upon his return, the chief advocate for Martian self-government, explained the need for the treaty as such during the ratification battles, some decades before the main story of the novel:

“[T]he United Nations policy team for outer space… envisioned space as a place for the endeavors of the international community, and when private enterprise beat them to the punch, they wanted to make sure it played by their rules. So, of course, rumors spread that they’re going to mandate an international agency to manage extraterrestrial property, arbitrate mining rights, and generally be sort of a UN charter for all space activity. If this is their plan, it is an outrageous violation of not only America’s rights as a sovereign nation, but of the rights of all citizens of this species — and even if they have no such plans, the generation of such rumors has an insidious chilling effect on enterprise. We never gave the UN the power to say where we can and cannot go or to say what we can and cannot create or extract: why should we bow down when they dubiously interpret a treaty to say otherwise? The only way out of it that I see is this new treaty. The Mars Treaty will put an end to this property rights debacle by explicitly upholding the property rights of those already there, while giving them the power to regulate those of further newcomers. The settlements will be able to organize their own property regimes, and we will protect them against any blatant incursions by sanctions against any corporation or nation that violates their land rights.”[6]

With the support of the President of the United States, Andrew managed to hammer the treaty through the United States Senate, and with that example most of the world followed. As the years went on and Mars grew more and more powerful, the treaty began to be viewed more and more as a watershed moment. As described by one pro-Mars Terran pundit at the beginning of the novel:

“Having found that human societies in space, despite the enormous influence of the groups which created them, were reasonably free, democratic, and prosperous, dozens of nations agreed to officially recognize the property distributions and governmental arrangements which existed among the space settlers of the 2060s. With such ratification, the legally tenuous ground on which many space settlements… stood was reinforced and made stable, by eliminating the enormous tangles of ‘settler associations’ and ‘conditions of employment’ which were used by spacefaring companies and their settlers to avoid the officially illegal claim of actually owning land off of Earth’s surface.”[6]

I must stress, because two of the last three paragraphs are sourced solely from my imagination: this is not how we want things to go. Although the treaty in The Secret of the Stars wards off political conflict between Earth and Mars for some time, the lack of unity in the purpose of colonization among settlers and the hodgepodge nature of the treaty’s ratification lead to some undetected fissures in Martian society, fissures which erupt after the creation of the fusion reactor. In particular, even though Andrew is a true believer, his work for the Extraterrestrial Technologies and Resources Corporation — the largest corporation in the solar system and the architect of Martian colonization — leads to Martian society and ‘Extechre’ being alarmingly codependent in a way which would not happen if the law and the pursestrings were held in the same hand. As the dysfunction grows worse and drags Earth-Mars relations into the mud, the politics of Mars approach catastrophic failure, and Andrew begins to fear that he will “enter [his] old age and die just as [his] failure comes to fruition”[6].

The chief failure of the settlers in The Secret of the Stars was foresight: the corporations which sponsored colonization did not immediately erect a government, and the colonists did not give thought to a legal justification for their presence until Russia and China, miffed at not being involved, threw a wrench in the process by “call[ing]… resource extraction, economic activity, and colonization a violation of [the] obligation to forbid ‘national appropriation’ of extraterrestrial territory”[6]. By making sure that a unified front is presented by Martian settlers, and that this unified front ensures the legality of their activity before they set off, a great many possible disasters may be avoided.

In fine, international space law as codified in the Outer Space Treaty makes colonization of the sort we have considered illegal, and therefore the treaty is not worth the paper it’s printed on; evading the treaty is nearly impossible, and ignoring it would incite international conflict, and so the treaty must be changed; and, finally, the haphazard manner in which the treaty is changed in The Secret of the Stars plants the seeds of further political conflict, and so we must take care to avoid the mistakes of my fictional colonists in real life. The haphazard nature of Mars colonization in The Secret of the Stars, and the political dangers which such a disjointed effort can and do cause, will be examined in our next post, “These United Colonies Are”.

Citations:

1: http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html

2: https://en.wikipedia.org/wiki/Outer_Space_Treaty#States_that_have_signed_but_not_ratified

3: https://en.wikipedia.org/wiki/Spacefaring

4: https://en.wikipedia.org/wiki/Oman#Politics

5: https://www.shmoop.com/red-mars/transnationals-symbol.html

6: The Secret of the Stars (coming soon!)

Title Image: https://www.google.com/url?sa=i&source=images&cd=&cad=rja&uact=8&ved=2ahUKEwju3o6v1NXjAhXDSt8KHbcjC_cQjhx6BAgBEAM&url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FToilet_paper&psig=AOvVaw1MSu_z82x2e4WiBX0IWNKU&ust=1564336121143190 , a picture of toilet paper, which is more valuable for colonists than the Outer Space Treaty, in that at least colonists can wipe with it when they’re done.