Ep 03: Who Owns Mars?

Once we’ve taken that giant leap for mankind and have set foot on a new world, we have to ask: Who actually owns the land we’re standing on? If you’re planning on making your fortune in space by mining or farming or building new habitats, how do you get the rights to work that territory? Do we want to use the same capitalist land-ownership system a lot of us use here on Earth, or is it time for a new way of handling property? Is it even legally possible to own land in space?

We talk to space lawyer Laura Montgomery about the current legal status of property rights in space. Sociologist Debbie Becher gives us an idea of why property rights matter in a society. And colonial historian Margaret Newell  explains how property rights were distributed in the early American colonies.

The transcript for this episode is below.

Imagine this: You’re finally here. It’s taken three episodes, but your ship has finally reached its destination. You’ve just touched down on Mars, or the Moon, or maybe a planet beyond the Solar System. You’re exhausted. You’re thrilled. You mostly just want a shower and a nap. It’s time to kick off your shoes, drop your bags, and settle into your new home. But… where is your new home? Like, your house, specifically, someplace with a bed and a door that you can call your own. Did you buy it before you left Earth? Is it assigned to you when you arrive? What if you came here to be a farmer, or a miner? How do you claim the land that you want to use?

Welcome to Making New Worlds, a podcast about the ethical issues involved with settling space. I’m Erika Nesvold. Today we’re talking about property rights. Like, how will we decide who has the right to live on and work the land on other planets and moons beyond Earth? Will we have the same kind of capitalist land ownership system we have on Earth in places like the U.S.? Or will it be a more communal system?

We’re pretty far out of my field of expertise here. I’ve never even owned a house down here on Earth. So I called in a bunch of experts. To start off, I talked with a sociologist about what property rights even mean, and why they’re important in a society.

Debbie Becher: “So, I’m Debbie Becher, and I’m a assistant professor of sociology, so I’m a sociologist at Barnard College, which is part of Columbia University in New York.”

Debbie studies conflicts over property rights in places like Philadelphia and North Dakota, conflicts between governments, corporations, and individuals, just like the ones we’ll have in space.

Debbie Becher: “So a sociologist would see property as a social– as a kind of social agreement. Property rights certainly exist in writing, in law, and that’s part of what they are. But they’re really only real to the extent that we respect them. So, they’re claims that people– rights, in a sense, are claims that people make that get respected by others. So they’re always social. So, I think in space, we’re– What I– I’m certainly not a space expert, but what I imagine that we’re gonna see is a lot of competition, claims for those rights, a lot of competing claims. And we’re gonna wait and see which of those claims win. And some of the time, they’re respected because of force, because of outright physical force, and sometimes we’re talking about them being respected in civil law, right, and civilly respected.”

Debbie discussed two important benefits of having property rights in your society. First, it lets you protect the land and the resources within that land from overuse.

Debbie Becher: “I think one of the things that my research shows about property that I think people don’t talk about often enough is that property systems, I think the id– one of the ideas behind it, is not about who– rights about who gets what, but an incentive that people will continue to value and how you can keep that resource valuable and also not destroy it physically. So, how you can, as environments change, as political, social, physical environments change, how you can create a social system that isn’t gonna lead to the destruction of a resource. Or that is going to make it as valuable as possible.”

I’ll be talking about environmental protection in space in a later episode. A second benefit of property rights that Debbie mentioned is based on economics.

Debbie Becher: “And it often, people will defend private property as giving people incentives to labor for it, right? And to care for it. So I think in thinking about space, that one of the real questions there is, how do you govern the resources in a way that you will encourage their preservation and their value?”

Property and labor are two really closely related issues, and in fact I’ll be discussing labor rights in space in next week’s episode. But for now, let’s just note that in a capitalist system like the one that space settlement seems to be developing in now, money will be made in space by people who can apply labor to property and extract valuable resources, whether that’s by asteroid mining, water extraction, farming, or something else.

Laura Montgomery: “A lot of economists point to property rights as one of the cornerstones of wealth creation. Because you can leverage those rights, you can take out a mortgage, you can get a loan off of it, you use it as collateral. And then you can, sort of, make it grow from there.”

That’s Laura Montgomery.

Laura Montgomery: “I’m a space lawyer and a science fiction writer, now. And I— my current job is I’ve set up my own law firm, Ground Based Space Matters, and I blog at groundbasedspacematters.com, where I talk about different legal space issues, policy issues. And I’ve been in private practice now for about a year and I work on issues mostly about FAA regulation and the Outer Space Treaties.”

Now that we have a better background in why property rights matter, I wanted to get an idea about what current laws say about property ownership in space. A lot of it comes down to a treaty signed by the U.S., the Soviet Union, and over 100 other countries, called the Outer Space Treaty of 1967. Actually, the full name is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.

This treaty covers a lot: it talks about who’s liable for damage caused by crashed rocket ships, it forbids the use of nuclear weapons in space, and it requires space travelers to avoid harmful contamination of moons and other planets. Laura pointed out that the Treaty in general is pretty broad and most of it hasn’t even been tested in the courts yet.

Laura Montgomery: “I’d say that legally, we are at a crossroads in interpreting the 1967 Outer Space Treaty, because what we have are what we lawyers call “questions of first impression.” We don’t have a lot of court decisions, well, we have no court decisions interpreting most of— anything in the treaty. And so while we may have positions that the government has articulated, or hopes like your listeners have, we don’t have answers— we don’t have definitive answers from a court.”

I’ll definitely be mentioning the Outer Space Treaty again in future episodes of this podcast, but for now we’re mostly just concerned with Article II, which is pretty short, so I’ll just read it here: “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.”

So, that just means that America can’t go and say this is a new state of America that’s our territory, right?

Laura Montgomery: “Right, right. This is, “The Moon is the 52nd state.” So, it can’t say that. The people who want to, you know, incorporate via Article VI, all prohibitions on governments as being prohibitions on private actors would say, “Well, it means that Pepsi cannot claim the Moon, either!” I’m not sure that even under our existing law, if these treaties didn’t exist, that Pepsi could claim the Moon, because our common-law principles of property– of recognizing property rights say that you must first, you know, occupy it, use it, keep other people out, before you can start claiming property interests. So no one can go up and claim the whole darn Moon, because they wouldn’t even under regular old common law be able to. But, if you went up and wanted to go up and claim 40 acres and bring your mule, you might want to be able to actually control all of that, under the doctrine of adverse possession, before anyone else would be able to recognize your property rights.”

So Laura says that while the 1967 Outer Space Treaty says that governments can’t claim land in space (specifically, the governments that signed the treaty), that doesn’t mean that individuals legally can’t own land in space.

Laura Montgomery: “One of the interesting things to remember when we’re talking about property rights is, there is a real difference between saying someone can grant property rights, or recognize property rights. And if you take the view that property rights are a natural right, and if someone goes and works on something and puts all the effort in, then that they– that the property right is theirs, then you’re recognizing their rights. If you say that all land belongs to the sovereign, then the sovereign is parceling out land like William the Conqueror, then he is granting property rights. I would say that under U.S. law, we are more of the view that you recognize property rights.”

Of course, that assumes that we’re following U.S. law in space, which is a big assumption. The U.S. is not the only country that’s been to space, and it’s certainly not the only country with citizens who would like to settle space. Which means that there will be a lot of different approaches to property rights once we all get up there, which is why international treaties are helpful. But even having international treaties about property rights doesn’t mean that everyone’s going to be on board.

Laura Montgomery: “I do want to clear one thing up that I think people get confused about, about the treaty. So there was the 1967 Treaty. Then there was another one, the Registration Convention. And then there was another one, the Liability Convention, and then, there was the Moon Treaty. The United States did not sign that. And that’s the one where they were trying to say that you literally couldn’t own, no one could own, land in outer space. So it’s important to remember, the United States didn’t sign that, which means the United States is not bound by its approach to property rights.”

The Moon Treaty, also know as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, was created in 1979 but it’s only been ratified by seventeen countries, and that doesn’t include the U.S., Russia, China, Japan, or most of the European Union. So while Article 10 of the Moon Treaty says that governments, organizations, and individuals can’t own property on the Moon, or any other bodies in the Solar System besides the Earth, none of the current major players in space exploration actually recognizes the treaty.

So that’s the current state of property rights in space. What can we learn from history about how land is usually divided up by invaders and colonizers in a new territory? Different colonizers have had different approaches to property rights, but in this case I wanted an example from American colonial history, since it’s one example where corporations were heavily involved with colonization. So I turned to a colonial historian.

Margaret Newell: “My name is Margaret Newell. I’m a professor of Early American History at Ohio State University.”

I asked Margaret how European colonists in the Americas decided who got what land after they showed up.

Margaret Newell: “Well, it depended on which nation-state was involved in the colonization project, but in general, if the colony had been established under one of these sort of corporate, private deals, if the corporation had been involved really early on, then they tended to claim a wide latitude on what they found. And often they had contractual rights to what they found. So the crown would get a fifth, usually, of the mine– of the mineral output, that was kind of a classic, “the king’s fifth,” as a kind of tax or share, but then, other than that, you know, it was sort of whoever was involved in the extraction. And then who got to ship it. So people were making money all up and down the chain.”

So the eventual holder of the property rights depended on who funded the trip to the Americas in the first place, but also on who worked the land.

Margaret Newell: “The land is– had no value without labor. Like, what’s the use of having a whole bunch of land if you don’t have anyone to work it? So this was the attraction of enslavement. I mean, it’s a predictable labor supply.”

So it’s not that the actual laborers on a piece of land had any right to that land. But if you could provide the labor supply, you could get a piece of the New World.

Margaret Newell: “Well, you see, in Virginia, the company owned all the land, the Virginia Company, which was the corporation. But over– But partly to try to induce people to come, they started offering shares of land to people who brought labor with them. So you got a share if you came yourself, but you got the same amount of share, and you got the share, if you brought laborers with you, and that included indentured servants, enslaved Africans, or your own family members. So you got– these were called “headrights.” So this was actually a company decision. But it became very customary.”

Margaret Newell: “And, you know, the people who– the local governments that emerge out of these corporations– and they had a lot of leeway, and a lot of self-government– they pretty much tended to give land to each other. That was essentially one of the functions of local government, was to give land and get land. So the, you know, the leadership cohorts of all of these colonial ventures very quickly became owners of, you know, lots of large estates. They got land as rewards, gave land to each other. So, New England, there was– they had a system of, every new town was a kind of mini-corporation, and the town got sort of a giant grant of land to do the work of siting the town and building infrastructure. And then they would, kind of, keep the land almost in the bank, and save some for future generations, but they would just do shares, they would just do, you know, every once in awhile the town would say “Hey, it’s time for a share,” and everybody would get some land who was a free person, a householder. And this was how, you know, additional generations then got access to land through the– through membership or these communities.”

But this is just one example of how property rights can be established and recognized by a society. There are plenty of other options to choose from: maybe you go the communism route, for example, and get rid of private property, and just have communal ownership of property and resources. Of course, going back to what I was saying before about international treaties, if you have a bunch of different property rights systems competing for the same territory, things could get unpleasant.

Margaret Newell: “It’s very clear the Indians have different ideas about property ownership. I mean, I don’t want to say the Indians– We’re more and more understanding the Indians did have firm ideas about territoriality. They fought to defend. They were interested in resources, they fought to defend access to resources. They were particularly interested in transportation bottlenecks. So, you know, portages or, you know, places where rivers connected, places that actually drew a lot of Indians in for trade… And they’re aware of territory and resources, and they care about them. They care about transportation networks and controlling them. But they were– they would sign agreements conveying what they thought were use rights to the Europeans. So they– the Europeans– They’d be signing a deed and what they thought was, “You get to do this, too.” And the Europeans would be thinking, “I have, now, exclusive access and if you come on this now, you’re trespassing.” So this notion of exclusivity and of land as something that can be conveyed in a– The term is “alienation.” That you could alienate land, that it was alienable. That, in other words, that once you sold it, you could never go there again. You were then, kind of, alienated from it. I mean, they used these terms, that’s one of the ways– places it comes from. It’s sort of a new idea for everybody. It’s sort of– It’s not entirely the way things are being practiced in Europe, either.”

Sociologist Debbie Becher suggested that whatever we decide to do with property rights in space, we should try to figure it out sooner rather than later.

Debbie Becher: “Counterintuitively, it might be that establishing property early, some kind of property, communal property, or even private property in the right hands. I don’t think it’s whether it’s a private or a public system, but establishing it with someone early might prevent others from going, exploiting it, and laying claim. I mean, that’s what we’ve had– the lessons from colonial times as well as from today, that when claims are ambiguous, that people physically go get the stuff, and then they later say, “It’s ours.” And often, that’s respected. So, in some ways, it might be that the earlier that we establish what the law of property is, or what the rule is, the less likely people are to, sort of, have what we might think of a wild west, kind of, attitude towards it.”

Debbie Becher: “I mean, one of the things property does, certainly, is determine who gets what. It’s a distribution system. And, do we really, as a world, want to reward whoever gets there first?  And I think some people do, because it’s an incentive. Clearly that’s part of the U.S.’s interest, is creating an incentive for their companies to get there. But others might think that, but maybe they should only be granted rights for five years. Maybe they should be granted short-term rights. So one of the things that property can do, for instance, is establish a length of time, and over– during which someone has a certain kind of right. Maybe it’s a use right, or an extraction right. And maybe we need– we can somehow determine that there’s a short-term right, rather than a long-term right, so that we can plan for changes in the future. That’s a possibility.”

After all, if we change our minds later about who should own certain valuable pieces of property, it could be either very expensive or very bloody to get that territory back.

Debbie Becher: “If, then, we later decide, as we might, in the United States, that those who have acquired the rights to, say, oil and gas, or coal, are not the ones we want to have the rights to oil and gas, once they’ve got them and they’re valuable, it’s very hard to get them back… And, for instance, the U.S.– The value of oil and gas in places where it’s already being, where we know, where we can pump it and we are pumping it, it’s too valuable for the government to even use eminent domain. It’s not a question of whether people think it’s right. We don’t have the money to redistribute. So, redistribution is really unlikely. I think maybe that’s the main problem, right? If you don’t plan, if you don’t do something early.”

Debbie Becher: “And yet, maybe what you’re talking about it that there is actually a dilemma, a real dilemma, because I think in space I would imagine that we, that some people want to– well, I know that some people are hesitant to claim rights, to claim property in space, either for one country or for anything other than the commons. And yet, perhaps, we have a problem here because if that– If the idea of space, all spatial resources as the commons wins in perpetuity, maybe that would be okay. But if it doesn’t win, and private claims win instead, then perhaps it would have been better to make the private claims early and not have to redistribute them. Or not want to redistribute them and not be able to.”

I talked at the beginning of this episode about why property rights matter in a society, but they matter on a personal level, too. Does the idea of the government taking away your property after you’ve already started living and working there make you angry? If so, you’re definitely not alone. During our conversation, Debbie mentioned that in her research, she’s encountered a lot of strong emotions about what property means. I asked her why she thinks that might be.

Debbie Becher: “I think one idea that I think is probably really important for space, the propertization of space, is that I think people have strong feelings no matter where they are about who deserves what. And property systems are, as I said at the beginning, are social agreements about who gets what. And so I think they have strong feelings when others around them, be it the government or some group of people or some formal institution or not respects others claims to what, to stuff. I mean, property is about agreements over resources. Anything other than people, right? Agreements over rights, over all kinds of things that we might claim to those resources. And so I think people have strong feelings about who deserves that, even if they’re not personally involved. And I think that’s part of what this fight, these upcoming fights in space might be about.”

So what do you think? Should we have a property ownership system in space like we do in so many countries on Earth? How do we decide who owns which pieces of land? Is it just whoever gets there first? Whoever can work the land to extract value from it? Or do we need some other kind of property rights system, something more communal? Join the conversation on Facebook at facebook.com/makingnewworlds. Or hit us up on Twitter @makingnewworlds. You can also visit our website at makingnewworlds.com. And please don’t forget to rate and review this podcast on iTunes!

If you’d like to learn more about sociology and property rights, check out Debbie Becher’s new book, Private Property and Public Power: Eminent Domain in Philadelphia. If you’re interested in early colonial history, economics, and labor, historian Margaret Newell has two books for you, From Dependency to Independence: Economic Revolution in Colonial New England, and more recently, one called Brethren by Nature: New England Indians, Colonists, and the Origins of American Slavery.

Laura Montgomery blogs about space law at groundbasedspacematters.com, and can be found on Twitter @lauramontgome18. You can also find her science fiction work, which may be the only science fiction I know of with accurate space law, at lauramontgomery.com.

Next week, as promised, I’ll be talking about economics and labor rights in space. How will these space settlements make money? What happens if you lose your job when you live in a space settlement? What if your employer refuses to pay you? Find out next week.

This has been Making New Worlds, a podcast by me, Erika Nesvold. Our intro and outtro music is by Herr Doktor.

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