The New Frontier - About Mars, settlement, and space law

A.J.Armitage · 2002-06-04 20:08:12

June 4, 2002 8:45 a.m.
The New Frontier
Preparing the law for settling on Mars.

By David Kopel & Glenn Reynolds

On the launch fields of Cape Canaveral, rusty gantries and smoke-stained concrete pads sit as silent relics of the Cold War. What is worthwhile has long since been salvaged; the rest awaits demolition while signs warn visitors not to come too close to the dangerous parts. Though sad to look at, the relics are only small-scale dangers.

The same cannot be said of another Cold War relic that poses far more risk to America's future. That is the Outer Space Treaty of 1967. Like the abandoned launch fields, the Outer Space Treaty needs to have its valuable parts salvaged, and the dangerous ones demolished.

The 1967 Outer Space Treaty has traditionally been viewed with near-veneration by the space community. And the treaty did many worthwhile things: it forbade placing nuclear weapons in orbit or on the Moon, it established ground rules for liability and registration of spacecraft, and it set forth the principle that outer space should be open to anyone, without regard to nationality.

These provisions are still valuable, but it was the "no sovereignty" provision of Article 2 that got the most attention, and that has done the most harm. Article 2 provides:

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.

At the time these words were first written, the United States and the former Soviet Union were engaged in a ferocious race to reach the Moon. Before the ink had dried, the Space Race was winding down. Although the U.S. government followed through with the Apollo landings, the government treated our victory in the race to the Moon as a symbol, rather than a starting point for advancing our nation's position beyond the Earth.

During the Johnson-Nixon years, Article 2 of the Outer Space Treaty was admired as a triumph of Cold War diplomacy, one that deftly defused a source of tension between the superpowers. But recently publicized documents demonstrate that it had far more to do with domestic American budgetary politics than with the prevention of nuclear war. One might argue ? and in fact, some people now are arguing ? that in agreeing to this provision the United States sold its birthright for a mess of pottage.

Robert Zubrin's recent book, Entering Space: Creating a Spacefaring Civilization reprints passages from two documents obtained by Alan Wasser of the National Space Society pursuant to a Freedom of Information Act request. One is a letter from Assistant Secretary of State Henry Owen to National Security Advisor Walt Rostow. Owen's memo is on strategy for getting the United States to agree to Article II, and says:

It will encounter strong Opposition from NASA and Ed Welsh. [Executive Secretary of the National Space Council, which coordinated space initiatives.] Nonetheless, I believe it is right, for two reasons:

(a) Moving toward a more cooperative relationship with the USSR in this field will reinforce our over-all policy toward the Soviets.

(b) More importantly: It will save money [emphasis in original], which can go to (i) foreign aid, (2) domestic purposes ? thus mitigating the political strain of the war in Vietnam.

In other words, the Outer Space Treaty was a budgetary raid first and foremost, and only secondarily a strategy of international relations. More evidence comes from the other document obtained by Wasser and reprinted by Zubrin, a State Department report to Secretary of State Dean Rusk, which set out the reasons for the Outer Space Treaty and noted:

we see no compelling reasons for early, major commitments to [space exploration]. . . Moreover, if we can de-emphasize or stretch out additional costly programs aimed at the moon and beyond, resources may to some extent be released for other objectives.

Stripped of the bureaucratese, the memos explain that the Outer Space Treaty was a strategy by the State Department to raid NASA's budget. Limiting America's reach into space was a minor sacrifice for the greater good of taking money from NASA and giving the money to the State Department and other old-line Washington bureaucrats. Then, State could then ship the money, under the misleading label "foreign aid," to kleptocracies favored by the State Department. American tax money that could have produced amazing feats of exploration was instead delivered foreign dictators who used the money to enrich themselves, to subsidize destructive economic policies, and to further oppress their populations. Foreign governments benefited from this "aid," but foreign people were harmed.

As Zubrin notes, the Outer Space Treaty ? despite the mythology that has developed since ? did little to reduce U.S./Soviet tensions, as the Soviet invasion of Czechoslovakia and the ongoing Vietnam War demonstrated. But that was okay, because reducing tensions was merely a pretext. Getting hold of the money was the real reason. And, in fact, space exploration plans began to be scaled back almost immediately, as money was shifted to the harmful foreign and domestic welfare programs that marked the Johnson and Nixon years. NASA began its descent into ossified bureaucracy; deprived of a meaningful mission, it had few alternatives.

Now we find ourselves in an entirely different world. The Soviet Union is no more. Mars, it turns out, has far more water than we previously suspected: enough to support colonies, and even programs aimed at giving it a climate more hospitable to humans. The reward for going to Mars has increased dramatically. At the same time, new Mars mission architectures, also pioneered by Robert Zubrin and studied by NASA for the past decade, indicate that the cost of going to Mars has dropped dramatically. Whereas a 1990 study suggested that a human mission to Mars would cost $500 billion for a "flags-and-footprints" mission, experts now believe that it could be done for a tenth of that; the very first landing could begin to create infrastructure for long-term human presence and even colonization.

How realistic are the prospects for resuming humanity's interrupted expansion into the cosmos? Serious enough that the misanthropic wing of the environmental movement is already organizing to try to block space development. More progressive environmentalists, though, welcome the idea of industrial activity and pollution taking place on barren places like the Moon and Mars, rather than on the Earth, where many plants and animals are harmed by pollution.

The Bush administration has shown that it is willing to reject politically correct international agreements which harm America's interests ? such as the recently repudiated agreement creating an International Criminal Court, and the ABM treaty.

Given the Bush administration's commendable interest in favoring American interests over the opinions of the post-national bureaucrats and chattering classes, the Bush administration should revisit Article 2 of the Outer Space Treaty of 1967. In Article 16, the Treaty specifically provides for states to withdraw from the treaty, by providing one-year advance notice. At the same time, the United States could announce that it would continue to adhere to the provisions of the treaty that still make sense, such as Article 4's prohibition of nuclear weapons in space.

Alternatively, the United States could simply undertake an ambitious program of human space exploration, one that lays the foundations for settlement off the Earth, without viewing Article 2 as an impediment ? but this approach might prove problematic in the long run.

It is widely agreed by space-law scholars that the Outer Space Treaty forbids only national sovereignty ? not private property rights. If, later this century, Americans settle Mars, they will acquire property rights to the land they settle. As John Locke wrote: "As much Land as a Man Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property.

The American government may choose to respect the Martian settlers' property rights, and even defend them, without violating the treaty's terms, so long as the government doesn't proclaim its own sovereignty over portions of Mars. The American government, after all, has traditionally defended its citizens' rights on the high seas (where no nation may claim sovereignty) and even on the sovereign territory of other nations when local governments were unable to do the job themselves.

But American settlers, of course, may have different wishes. As independent settlers, they would not be bound by the Outer Space Treaty, which only restricts the Earth-based governments that have signed it. (This is why the Chinese government's program for mining and controlling the moon will likely be carried out by ostensibly private Chinese corporations.)

The Martian settlers might choose independence, or they might choose to associate in some way with an Earth state ? much as the settlers of Texas first chose to associate with Mexico, but then fought for their independence after Mexico violated its constitutional guarantees to the Texans. Still later, the Texans chose to join the United States.

Under the terms of the Outer Space Treaty, however, the United States would be prohibited from accepting the Martian settlement of New California as the 51 state.

Notably, Article 2 forbids "national appropriation," but does not ban appropriation by some super-national body ? such as the United Nations. Surely the settlers of Mars would gain little from being placed under the thumb of an infamously corrupt and self-serving collection of dictatorships none of which (Russia excepted) have contributed anything to the exploration of space. Can there be any doubt that the United Nations bureaucracy, who is already attempting to create a taxing authority and standing army for itself, would proclaim its sovereignty over the Martian settlers?

Far better for the settlers of Mars to enjoy the protections of the Constitution of the United States ? as did the settlers of the American Territories in North America in the years before they achieved statehood. (A now-disrespected set of Supreme Court decisions in the early 20th century, The Insular Cases, refused to the apply the Constitution to territories conquered during the Spanish-American War, such as the Philippines. The decisions were based on the racist theory that the conquered peoples were unfit for Anglo-Saxon freedom. Those decisions of conquest are irrelevant to Mars, where settlement would be by free citizens coming from the United States ? similar to the settlements of Texas and the rest of the continental United States.)

President Kennedy pointed America to the New Frontier. That frontier has advanced to Mars. It is time for President Bush to ensure that humanity's new frontier will enjoy constitutional freedom rather than U.N. despotism.

? Dave Kopel is an NRO columnist. Glenn Reynolds is a professor of law at the University of Tennessee, and co-author of Outer Space: Problems of Law and Policy.

Phobos · 2002-06-05 03:06:21

How realistic are the prospects for resuming humanity's interrupted expansion into the cosmos? Serious enough that the misanthropic wing of the environmental movement is already organizing to try to block space development. More progressive environmentalists, though, welcome the idea of industrial activity and pollution taking place on barren places like the Moon and Mars, rather than on the Earth, where many plants and animals are harmed by pollution.

I agree with this sentiment exactly. I think the author hit it right on the head when he called the anti-space faring environmentalists misanthropic in nature. A lot of these people would rather see humanity as a whole destroyed then to see it spread into the cosmos and actually save the ecosystems on Earth by moving manufacturing and mining off of Earth. And I also agree that the United Nations could become a major barrier to space development if it continues to insist that people have no right to stake claims on any extraterrestrial real estate. Of course there are loopholes in various U.N. space charters that allow that to happen (it only mentions nations not individuals or private interests) but they have made attempts to close those loops holes and I'm sure they will in the future to.

Ares · 2002-06-16 01:07:32

And I also agree that the United Nations could become a major barrier to space development if it continues to insist that people have no right to stake claims on any extraterrestrial real estate.

I disagree. As I have stated in other forums, short of going to Mars themselves, the UN has no power to stop a determined group of colonists.

Aetius · 2002-06-16 06:38:47

One example I thought of right away was Ethiopia. The US government sent that country millions of dollars intended for humanitarian assistance, only to see most of the money appropriated by crooked officials and spent on the military.

I don't think Ethiopia really needed to modernize its Air Force while millions of its citizens were starving. Its Communist government then claimed that Western nations weren't doing enough.

The situation I've just described could apply to many Third World nations. If I actually felt like it, I'm sure I could provide many, many other examples.

Tri · 2002-06-18 13:40:03

If I'm not mistaken, Iraq fits the bill, too. We were subsidising Saddam Hussein before he became 'evil,' because he was fighting the Iranians.

Omer Joel · 2002-06-23 14:28:39

Not Osama Bin Laden himself, but predecesors (sp?) of the Taliban. In 1979, the USSR invaded Afghanistan, so the USA (naturally) funded, armed and trained the Afghan resistance movements which opposed the soviets. Ofcourse, most of these resistance movements were extremist islamic ones. The moral of this story: never finance a terrorist, not even to make the terrorist a weapon against your foe.

The problem is that most governments invest their budgets in short-sighted, oftenly-useless-in-the-long-term objectives. But doing something which would possibly bear fruits only in a long time?

I personally do not belive that Mars will be colonized by any single government. It will be done either by a coalition of several nations, or by a consorteum (sp?) composed of several corporations. And the latter is far more likely than the former.

NovaMarsollia · 2002-09-20 15:13:22

Those that advocate the development of Mars in the search for raw materials often appeal to Malthusianism. There is a need, they say, to find ever more resources (including living space) to satiate the expanding population of the Earth. Although the grand plan to develop Mars so as to remedy an over-populated and resource deficient world reeks of dubious economic principles, Malthusian sentiments are still widely propagated by the likes of Marsoc Members.

But even if resource depletion was directly linked to the population of the planet (which it is not, since it is linked to the industrial avarice of comsumerism) the development of Mars' resources, including living space, is not likely to provide for the necessities of most of the world's people. New resources contribute to the consumptive wants of the wealthy, not to the needs of the most of the world's people (whose numbers, most of you allude, are getting so high so as to support a Mars colonization programme).

...and, as for 'Human Nature', this is an argument that space colonizationists rely on when they can't think up any really good reasons for space colonization. It's an argument that suggests to us to 'just give in to the inevitable'. It declares that 'it's no use fighting it, space exploration is natural, and fighting against nature is futile!' This line of thinking that Boucher and others use is more of a metaphysical commitment than an argument, however. And tinged with the national mythology of bizarre concepts like 'manifest destiny', it comes to be seen as just the millenial announcements of dreamers and idealogues.

In the early 1960s John Glenn (and others of his ilk) probably used this line of argument to chart the deterministic future course of humanity in space. If you told him in 1962 that the epitome of human space exploration at the turn of the millenium was not in fact the landing of a human on Mars or the setting up of a moon colony but the sending into orbit of a pale old ex-astronaut in a promotional space show so that he could pee in a bottle for TV viewers, he would have laughed at you. But as we can see from the history of the 1962-2002 space programme, the ever-onward march of humans into the Solar System is not happening. And if space exploration and development were 'Human Nature', every human would be interested in it, would have been endlessly supporting it, and it would have happened!

Appealing to 'nature' or 'Human nature' is a dangerous and futile path within space development legitimization, since what is described as natural is just some forlorn hope to take the future out of the hands of contingency and put it into the hands of determinism. And apart from this, everybody out there in the real world realises this. Space expansionists should grow up and realise it to. Why don't you lot just admit it and declare that space colonization isn't inevitable, isn't necessary, hasn't got any social, economic or environmental legitimacy, but that you don't care and you wanna go to Mars anyhow just cos it would be a fun thing to do! Such hedonism would be a little more honest, at least.

clark · 2002-09-23 07:55:15

Those that advocate the development of Mars in the search for raw materials often appeal to Malthusianism.

Who is "those" exactly? Raw material extraction is generally considered uneconomical and unneccssary for use by earth, at least those who advocate Human to Mars claim. Of course an argument can be made that it may "become" economical to extraxt raw material from mars...however, that argument is predicated in advances in mining, propulsion, and the development of solar system economies- ie- inter planatary space development in larange point, asteroids, or planetary orbits.

There is a need, they say, to find ever more resources (including living space) to satiate the expanding population of the Earth.

Well, it is a matter of opinion on how many people is too many. Crunching the numbers can show that the Earth will support billions more people- crunch them another way and the earth is already bursting at the seams. This "argument" is nothing more than clashing opinions based on comfort levels. Once again, who is "they"? We cannot empty the planet fast enough, ever, to affect population in any meaningful way.... not unless birth rates decline dramaticaly worldwide.

If you told him in 1962 that the epitome of human space exploration at the turn of the millenium was not in fact the landing of a human on Mars or the setting up of a moon colony but the sending into orbit of a pale old ex-astronaut in a promotional space show so that he
could pee in a bottle for TV viewers, he would have laughed at you.

I guess I remember contemporary history different in regards to the "epitome" of our space faring achievments. But hey, feel free to discount the results and achievements of ISS, MIR, Space station Freedom, the Space Shuttle, Hubble, the Eros satellite, the mars program itself, and the other numerous scientific satellites that have mapped our solar system and our planet in ever greater detail, providing us new insight into our environment and our universe. Nova, you are either ignorant of your human heritage or are extermly disrespectful to the sacrifice of so many for the betterment of all.

But as we can see from the history of the 1962-2002 space programme, the
ever-onward march of humans into the Solar System is not happening.

Rome was not built in a day, the New World was not colonized over night, and the West was not settled after a few weeks and a stop off in Vegas. To suppose that mankind must be colonizing the moons of some distant planet in 40 short years is the height of arrogance and belies an immature perspective on human achievment. Are you four? Have you no ability to appreciate the complexity and the sheer magnitude of this space endeavour? Rocket science is ROCKET SCIENCE. This isn't sailing ships and chuck wagons. This isn't sextons or campfires at night ovber buffalo.

And if space exploration and development were 'Human Nature', every human would be interested in it, would have been endlessly supporting it, and it would have happened!

It is human nature to want to live... but wait, not every human is interested in it- therefore it is not human nature to want to live? Don't be a laywer, you'll fail the logic tests. Surly you can do better than this?

Historical evidence demonstrates that human beings have a proclivity for moving beyond their current environment in search of new environments... now this is human nature, unles of course you believe that humanity is still living in only Africa.

Why don't you lot just admit it and declare that space colonization isn't inevitable,

Not inevitable? Well, if we assume that humanity continues it's historical behavior pattern, we can assume that it is highly likely that space coloinzation will be INEVITABLE. However, inevitable does not imply a timeline, only that at some point along the timeline, it will occur.

isn't necessary,

EVentually our sun will burn our world and this solar system, it behooves us (humanity) to be as far away, and as spread out as possible, when that day comes. Why notstart down that long road now?

hasn't got any social,

A dedicated national or multi-national effort to coloniza space would have the same profound social impact as mobilizing for war.

economic or environmental legitimacy,

Building rockets for space, not for war.... making rockets = jobs. making rockets for space, not for war = cleaner environment (unless you prefer chemical, biological or nuclear annialhation).

Josh Cryer · 2002-09-23 12:42:12

Hey clark, nice to see that you seem to agree with me about Martian resource extraction being unuseable by Earth.

I like how Nova ?invents,? opposing arguments. There are many many many opinions about space colonization, so he focuses on one simple argument, and pretends that that argument is the argument for space colonization. Sure, some people say that space colonization is ?human nature.? But one could just as easily argue that humans naturally waste, and since our wasteful society shows complete disregard for our own ecosystem, humans are naturally suicidal. In other words, it is ?human nature? to commit suicide.

Bill White · 2002-09-23 13:50:33

Let us return to the article first cited by A.J.

The Bush administration has shown that it is willing to reject politically correct international agreements which harm America's interests ? such as the recently repudiated agreement creating an International Criminal Court, and the ABM treaty.
Given the Bush administration's commendable interest in favoring American interests over the opinions of the post-national bureaucrats and chattering classes, the Bush administration should revisit Article 2 of the Outer Space Treaty of 1967. In Article 16, the Treaty specifically provides for states to withdraw from the treaty, by providing one-year advance notice. At the same time, the United States could announce that it would continue to adhere to the provisions of the treaty that still make sense, such as Article 4's prohibition of nuclear weapons in space.
Alternatively, the United States could simply undertake an ambitious program of human space exploration, one that lays the foundations for settlement off the Earth, without viewing Article 2 as an impediment ? but this approach might prove problematic in the long run.

Okay, can anyone explain WHY or HOW the national interest of the United States is advanced by a space settlement program?

As a practical matter, how could the United States possibly maintain legal, bureauratic or political control over any permanent space settlement? Thus, how can any US administration cost justify $20, $30 or $40 billion dollars for the first missions, not to mention $100 billion + much more needed for permanent settlements.

In any event, the United States seems close to de facto political and military world supremacy having limited its space operations to low earth orbit. Would not the extensive settlement of space tend to undermine the coming Pax Americana? I see possible geopolitical motivations for the EU, or for Russia, India or China but not for the United States.

Indeed, the Pentagon seems to benefit if everyone else stays the heck out of space. Look at the EU Galileo program for an example.

Finally, clark is exactly right. What could Earth possibly import from space with any hope of obtaining a satisfactory return on investment? Humanity does need to settle space, IMHO, only we need some new paradigms to get it done.

clark · 2002-09-23 15:06:34

Okay, can anyone explain WHY or HOW the national interest of the United States is advanced by a space settlement program?

In order to adquetly explain the why and how, we need to define what the US national interests are.

I would suggest that the US national interest is to maintain superioity in any area of its choosing, and in all areas related to the maintenance of it's ability to project the will of the elected leaders in order to maintain dominance and"way of life" for it's citizens.

There are numerous reasons to colonize space, and more importantly, there are numerous reasons for the US to colonize space.

1. If the US does not colonize, it leaves the possibility of another group- it is a missed opportunity of unknown long term value, but the magnitude of inaction can be estimated:
A. Lost opportunity in developing cutting edge science and technology with unknown economic value, but history has shown that space sciences can result in huge advances for consumerism and economic development.
B. America not colonizing means someone else will be able to exploit an opportunity. This could result in space colonies, or groups in far off areas where american influence and power is muted by the reality of space- us not colonizing space allows others to "get away" from the Pax Americana, which allows a future threat to our position.
C. Allowing others to "TRY" means allowing them to develop their own neccessary space infrastructure- a neccessary prerequisite- this space infrastructure can be utilized to threaten the US space dominance- our colonization of space reduces others motivations since there would be less opportunity given the US dominance.
D. Loss of valuable experience- allowing others to colonize before us allows them to develop before us, therby reducing our ability to effectively assure our dominance in the future- why cripple ourselves?
E. Further assures US dominance of space.
F. Propagates ans virtually assures that american instutions will be created in space, which are more likely to share the same values as it's american example- we know what we are getting.
G. Provides economic opportunities for high-tech fields which are more environmentally friendly, takes advantage of our exsisting educational infrastructure, and will improve the overall standard of living within this country.
H. Provides an alternative to the war-industry and an acceptable utilization of exsisting scientists displaced by cessation of war.
F. The expected sciences that are neccessary to make colonization fesible would have profound effects on medicine, agriculture, waste recycling, power generation, miniturization, propulsion sciences, material sciences, zero-g manufacturing, communications, zero-g construction, space mining and utilization, solar power, astronomy...the list goes on.
With each advance, we can create new products- new patents- new jobs and maybe a better way of life for all.
H. Politcal prestige which could help foster our democratic instutions in other countries.

As a practical matter, how could the United States possibly maintain legal, bureauratic or political control over any permanent space settlement?

Why would it want to? But, to answer the question, "control" can be maintained by simple use of threat- economic blockade. Our space superiority means that we can probably deny supply ships that launch from earth. Or a simple denial of "doing business on planet earth"- freeze the assets as it were, and threaten any who do business with Mars with economic sanctions- trade with some colony on Mars or America...not a tuff decision huh.

Would not the extensive settlement of space tend to undermine the coming Pax Americana?

No, it would only further our current position by placing people with direct ties to the US, or at the least, from a US experience. Better to have brothers than friends, and better to have friends than your enemies.

Indeed, the Pentagon seems to benefit if everyone else stays the heck out of space.

Let's be a bit specific since the statement could be construed to be a bit paranoid ( I know you did not intend that Bill)- the pentagon seems to benefit if everyone else BUT Americans stay out of space- the military exsists to protect US from THEM.

What could Earth possibly import from space with any hope of obtaining a satisfactory return on investment?

Science. Proof of life. New exotic minerals. ability to more astronomical sciences. experience in planet terraformation adn a better understanding of the interrelationship of ecosystems. Anothwer point of refrence to understand our planet.

Or, for the inspirational aspect:

Because we can now contemplate and assess that we are capable of achieving a goal unrealized by mankind and to ignore our ability and our opportunity to do this is to deny the fortune that has befallen us.

We can fly like gods, or choke in our own decadence.

Palomar · 2002-09-23 15:24:33

Okay, can anyone explain WHY or HOW the national interest of the United States is advanced by a space settlement program?

*Being a U.S. citizen myself, I have to say I ::don't:: really see it this way. I'm not sure it IS in the NATIONAL INTEREST of the U.S. to advance a space settlement program. However, any official encouragement we get is fine by me!!

--Cindy

Cobra Commander · 2002-09-26 23:25:06

Given that the United States was built on broken treaties, I hardly see any reason to worry too much about the Outer Space Treaty. If we decide to go to Mars, we're gonna go. If we decide to develop it, we'll do it. The rest of the world may voice some opposition, which will no doubt initially be addressed with much more concern than it it really merits, but in the end a thousand screams of protest from the UN won't mean much. Mars is going to belong to whoever can get there and "occupy" it.

Socrates · 2004-09-02 16:46:27

I have only one thing to say Mr. Armitage, blech. Your ass-kissing to Tumbleweed (also known as George "Dubya" Bush) and bashing of the UN was sickening. The UN has saved more lives then Bush ever will. In fact Bush has slaughtered thousands on a farcical war(The one in Iraq. At least he had a real reason to go to war in Afghanistan, even if he let Osama bin Laden escape.) while the UN has eliminated Smallpox and saved milions across the globe. :down:

A.J.Armitage · 2004-09-03 13:49:47

Socrates:

1) The World Health Organization has zip to do with Mars.

2) The only mention of Bush that I see is a call for him to adopt the policy favored by the authors. Concidering that we Americans have a two-term limit for our President, and that even if tomorrow we started going all-out to get to Mars it would have longer than 4 years and a few months, there's no chance Bush will still be in office when the first landing happens, let alone the arrival of the first settlers.

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