Property Rights in Unchartered Territory: Comparing the Colonization of Mars to the Colonization of America

By Hilary McDaniel

Last fall, Former-President Barack Obama announced that America will send humans to Mars by the 2030s. In a CNN editorial, the President declared that the “ultimate ambition” is for humans to one day live on Mars for an extended time.[1] The United States is not unique; spacefaring nations across the world are making plans to further space exploration and colonize Mars.[2] Scientific and economic advances have created what is now being considered a “space renaissance.”[3] Even individual entrepreneurs have begun making plans to travel to Mars. One of the most highly anticipated plans comes from a Dutch entrepreneur, Bas Lansdorp. Through his program entitled “the Mars One Project,” Bas Lansdorp expects to begin permanently colonizing Mars in 2024.[4] But with individuals and countries across the world racing to colonize Mars, who or what will govern property laws in this unchartered territory? In this blog, I consider the similarities between colonizing Mars and colonizing America. As such, I reflect on the tension between England and the American revolutionists, and ponder whether the first Mars settlers may feel a similar resentment toward being governed from far, far away.

The Outer Space Treaty, entered into force in 1967, “provides the basic framework on international space law.”[5] Article I of the Outer Space Treaty demonstrates that it was signed in an effort to “prevent ‘a new form of colonial competition’ and the possible damage that self-seeking exploitation might cause.”[6] According to Article I of the Outer Space Treaty, “The exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”[7] Article I further provides, “Outer space . . . shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”[8]

Additionally, The Outer Space Treaty provides that independent explorations, like the Mars One Project, would remain under the jurisdiction of its country of incorporation.[9] Article VI provides, “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.”[10] This system of extra-terrestrial governance bears resemblance to the overseas governance of colonial America—a system of governance that ultimately led to the Revolutionary war. Could the system of extra-terrestrial governance proposed by the Outer Space Treaty create a similar tension?

Jamestown, America’s first permanent English colony, was a private venture sponsored by a group of wealthy London investors known as The Virginia Company.[11] In 1606, King James I signed a charter that granted The Virginia Company the right to control area along Virginia’s coast.[12] Through the use of the charter, King James I retained control over The Virginia Company. The Jamestown colony “gave England its first foothold in the European competition for the New World.”[13] Like The Virginia Company, the Mars One Project is funded by a wealthy entrepreneur and would be controlled under the law of its country of incorporation. Thus, settlers from the Mars One Project would be subject to Dutch law.

Additionally, the motivation to colonize Mars is not all that different from the motivation to colonize America. European settlers colonized America at a time when fertile land was expensive and scare in Europe.[14] Today, natural resources are being globally exploited such that the world is facing a scarcity in those resources.[15] Like pre-colonized America, Mars offers the prospect of abundant cultivatable land. “Mars is rich in carbon, nitrogen, hydrogen and oxygen, all in biologically readily accessible forms.”[16] Additionally, last year, NASA discovered flowing water on Mars.[17]

English settlers cultivated new property in America, but they brought with them their conceptions of property rights.[18] Arguably the most influential English philosopher on the topic was John Locke.[19] “Locke believed people legitimately turned common property into private property by mixing their labor with it, improving it.”[20] Locke’s philosophy has been used to “justify colonization and property laws for centuries.”[21]

Some scholars have already argued that “the heart of [Locke’s] principles is highly applicable to an inquiry of what space property law should be.”[22] According to Locke’s theory, wouldn’t the land on Mars settled by the Mars One Project belong to the Mars One Project? After all it is their labor that will improve the land.

Of course, the Netherlands may attempt to impose their own laws on the Mars One Project settlers, but after a hundred years or so tension may grow between the people on Mars and those here on earth—like that between England and the American Revolutionists.

Interestingly, Locke’s theories did much to inspire the American Revolution.[23] In addition to Locke’s views on property, he wrote much on political philosophy. According to Locke,

A ruler gains authority through the consent of the governed. The duty of that government is to protect the natural rights of the people, which Locke believed to include life, liberty, and property. If the government should fail to protect these rights, its citizens would have the right to overthrow that government.[24]

 It was that theory that influenced the declaration of independence.[25] If the Mars One settlers don’t feel that the Netherlands is representing their best interests, perhaps they will follow a similar trajectory of the American revolutionists. It is unclear whether Outer Space Treaty will prevail, or whether Locke’s theory of natural rights in property will intervene. Although the prospect of colonizing a completely new planet may seem like a science fiction movie, it is a reality. All of the questions posed in this blog will be answered, perhaps sooner rather than later.

[1] Barack Obama, America Will Take The Giant Leap to Mars, CNN (Oct 11, 2016, 11:12 PM), http://www.cnn.com/2016/10/11/opinions/america-will-take-giant-leap-to-mars-barack-obama/.

[2] Claudia Pastorius, Law and Policy in the Global Space Industry’s Lift-Off, 19 Barry L. Rev. 201, 204-09 (2013); Victoria Weldon, Space Exploration, a Spacefaring Nation on Scientific Mission to Mars, HeraldScotland (Oct. 30, 2016), http://www.heraldscotland.com/news/14831875.Space_exploration__a_spacefaring_nation_on_a_scientific_mission_to_Mars/?commentSort=score.

[3] Pastorius, supra note 2, at 204.

[4] Michael Listner & Christopher Newman, Failure to Launch: The Technical, Ethical, and Legal Case Against Mars One, The Space Rev. (Mar. 16, 2015), http://www.thespacereview.com/article/2712/1

[5] Treaty on Principles Governing the Activities of States in the Exploration and Use of the Outer Space, Including the Moon and Other Celestial Bodies, U.N. Off. for Outer Space Aff., http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html.

[6] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies [hereinafter The Outer Space Treaty], U.S. Department of State, http://www.state.gov/t/isn/5181.htm.

[7] Id. (emphasis added).

[8] Id. (emphasis added).

[9] Listner & Newman, supra note 4.

[10] The Outer Space Treaty, supra note 6.

[11] A History of Jamestown, Jamestown Settlement & American Revolution Museum at Yorktown, http://www.historyisfun.org/jamestown-settlement/history-jamestown/.

[12] James I of England, 1566-1625, The Jamestown Chronicles, http://www.historyisfun.org/chronicles/james_more.html.

[13] David A. Price, Jamestown Colony, Encyclopedia Britannica (June 19, 2015), https://www.britannica.com/place/Jamestown-Colony.

[14] Andrew P. Morriss, Europe Meets America: Property Rights in the New World, Found. for Econ. Educ. (Jan. 1, 2007), https://fee.org/articles/europe-meets-america-property-rights-in-the-new-world/.

[15] Diane Toomey, Global Scarcity: Scramble for Dwindling Natural Resources, Yale Env’t 360 (May 23, 2012), http://e360.yale.edu/feature/global_scarcity_scramble_for_dwindling_natural_resources/2531/.

[16] Robert Zubrin, The Case for Colonizing Mars, Nat’l Space Soc’y (1996), http://www.nss.org/settlement/mars/zubrin-colonize.html; see also Mike Wall, More Ingredients for Life Identified on Mars, Space.com (Mar. 23, 2015), http://www.space.com/28899-mars-life-nitrogen-carbon-monoxide.html.

[17] Obama, supra note 1.

[18] Morriss, supra note 14.

[19] Jim Powell, John Locke: Natural Rights to Life, Liberty, and Property, Found. for Econ. Educ. (Aug. 1, 1996), https://fee.org/articles/john-locke-natural-rights-to-life-liberty-and-property/.

[20] Id.

[21] Pastorius, supra note 2, at 201.

[22] Id.

[23] Powell, supra note 19.

[24] Foundations of American Government, American Gov’t, http://www.ushistory.org/gov/2.asp.

[25] Id.