This post started out as an attempt to draft an actual constitution for a Martian colony. It quickly became apparent that such a project was pretty difficult and relied on too many variables. Consequently, it’s apparent that before writing a constitution, we have to discuss all the decisions and challenges surrounding what sort of constitution should exist in the first place. Elon Musk talked a while back about possible governing mechanisms and it seemed to me that he had evidently not thought about it very hard.
Any discussion of Martian law isn’t complete without starting with the similar governing international treaties we have right now. This Cato Institute piece by Edward Hudgins from 20 years ago is actually a good place to look. I’ll be summarizing his discussion here.
The Antarctic Treaty was signed by most large countries in the world and leaves Antarctica for scientific research and ecological preservation. Economic activity is essentially banned. Hudgins states: “This clearly is not the model for Mars.” Next is the UN Convention on Law of the Sea, which the US has never signed, although it largely agrees with the treaty as codification of maritime law. Hudgins opposes it citing provisions that could be used to “tax” economic activity in the open ocean and redistributed to inland countries. Practically speaking, I couldn’t find any evidence of such a thing happening, but I’m not familiar with fishing in international waters, and I’m sure someone else who knew more could properly complain about it, as one can about all human governance systems. I would state that this treaty doesn’t seem like a good model for Martian colonies either.
Hudgins next discusses the INTELSAT agreement, but that was privatized into the Intelsat corporation in 2001. Apparently it was an attempt to have an intergovernmental organization that provided communications between countries. I don’t have enough information to see whether it was better or worse one way or the other, but I find it telling that it was privatized and has remained so.
I should note that I’m not the only one that has been thinking about governance on Mars. There was a short-lived (as far as I can tell) conference called the International Extraterrestrial Liberty Conference, mentioned in this BBC article. Scientists and philosophers brainstormed about potential constitutions on Mars as well as legal and economic problems we might see. The astrobiologist mentioned in the article, Charles Cockell, actually has two books published, alluded to in the 2014 BBC article: Dissent, Revolution and Liberty Beyond Earth, and its follow up Human Governance Beyond Earth. Both are over $100 and I run this blog as a fun hobby, so I will not be buying them. Maybe Dr. Cockell has figured out all the problems with human space exploration himself, but I doubt it.
Next, take a look at James P. Howard’s presentation on the topic. Howard has an interesting background of computational statistics and public policy, but I don’t believe Martian law is his main subject matter (he also publicly admits to supporting the Ex-Im Bank??). Nonetheless, his was one of the easier discussions of Martian law I could find. He discusses the history of law in areas of colonization and establishing of states. We can expect that Mars, like past colonization in the New World, will have some sort of government pretty quickly, and it will have some democratic components. Howard also points out that we are unlikely to see a “global” Martian government, especially right away. Colonies will be small, sent by nation-states or companies, and they will be separate. Local self-government will be the most important form, as governance from Earth seems too remote.
A major takeaway from looking into this was that there is little research available in this area, yet plans are being made to go to Mars in a very short period of time. There should be work done on the relevant questions prior to going, but many remain unanswered. Meanwhile Elon Musk is tweeting that his Martian colony will be run by direct democracy, but what about its relationship with SpaceX, the U.S. company? Will it be subsidized? Will it receive free shipments of goods? If it doesn’t, is anyone able to be sued? What about its relationship to the United States? Will there be courts? Will there be a police force? How many people will be transported there before some of these governmental structures are in place? Some institutional structures should be predetermined, but which ones? What will be done on the fly by colonists who are also trying not die from all the lack of air, water, food, and radiation shielding on Mars?
There needs to be a comprehensive research project at SpaceX looking into what sort of legal system will exist on the Martian surface, and what can be planned out. All of these questions are also intertwined. If the colony is reliant on Earth corporations for shipments of goods, then the company has de facto veto power on any legal changes the colonists propose. Protections of colonist rights ought to be written down prior to any life or death crisis arising. Colonists will be presumably given all sorts of training in terms of physics, chemistry, rocketry, healthcare, etc. In a group any larger than a dozen or so, there will soon be the need for law, and I don’t think current efforts have begun to tackle it.
I wanted to go into a deep discussion of the minutiae of different governing and voting systems in order to tinker and figure out which system is the “best”. It’s quite possible that eventually the Martian surface will house many different colonies that can experiment in governance, but right now the concern isn’t that a Martian local government won’t have planned for an efficient voting system, but rather that there won’t be any good planning for governance at all.