The New Frontier

Preparing the law for settling on Mars

By David Kopel & Glenn Reynolds

National Review Online, June 4, 2002 8:45 a.m.

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.  

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