I’ve been reading a lot of law review articles recently, and I feel like sharing. In Deploying the Common Law to Quasi-Marxist Property on Mars, Professor Thomas E. Simmons attempts to meld ye olde common law with a Marxist view of property rights. I’m not so sure it’s all that Marxist, but he tries to come up with something with enough Marxism to satisfy the intent of the 1967 Outer Space Treaty–which we are reminded was negotiated with the former Soviet Union–while still giving the risk takers who settle space some measure of certainty and incentive for their efforts.
Article II of the Outer Space Treaty itself states
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.
Most people read this to mean that countries or governments can’t claim territory because that would constitute “national appropriation.” According to Simmons, for common law countries like the United Kingdom and the United States, Article II creates a problem for private property claims in land because all real property ultimately derives from the crown. (I do feel like the U.S. broke away from that whole crown thing a couple or more centuries ago. Also, while land “grants” might require sovereignty, “recognition” of property rights need not. See, e.g., the deep sea bed claims.)
So What? In discussing property rights we need to remember that property rights are useful, and for that point we can look at a space homesteading plan grounded in property rights. The writer, Rand Simberg, notes:
At the heart of the prosperity of the West lie clear and recognized freely transferrable property rights, protected under the rule of law.1 Absent legally recognized rights to buy, own, and sell titled property, it is difficult, if not impossible, to get a loan to purchase said property, improve it, mine it, drill for minerals on it, or sell the proceeds from any of those activities. Property rights are a sine qua non of wealth creation and a reason why America and other Western nations are rich and others are poor. Moreover, they lie at the heart of liberty. Their current absence off planet partially explains why we have not developed the next and, in a sense, last frontier—space.
The footnote goes to the work of economist Hernando de Soto.
The quasi-Marxism and the common law: Simmons, when faced with the difficulties of granting property rights by someone who doesn’t have them to grant, namely the States Parties to the treaty, constructs his theory. He starts out by noting that a court, faced with two claimants squabbling over competing claims to the same property on Mars, could attempt to resolve the dispute because the Treaty does not clearly prohibit courts from doing so.
Simmons observes the quasi-Marxist nature of Article I of the Treaty:
The proclamation that celestial worlds “shall be the province of all mankind” [in Article I] runs counter to the idea that one or more persons could assert exclusive control and enjoyment of [*50] certain parcels of a celestial body like Mars. There is no exception in Article I for private use, even on a small scale, and the phraseology is eerily similar to Marxist ideologies of “communal ownership for the advancement of the common good.” That the United States may have committed itself to an entire universe outside the Earth’s outer atmosphere imprinted with a Marxist modulation may be stirring to some and repugnant to others
Simmons at 49-50. He also notes, however, that state appropriation of Moon rocks shows that neither the U.S. nor the U.S.S.R. view the ban on national appropriation as a wholesale ban. These practices, he says, “can inform the interpretation of the OST. They suggest that the ban on appropriation and the province of all mankind principle admit some degree of private, exclusive and alienable property rights.”
Because the treaty displays neither pure capitalist nor pure socialist principles of property rights, he treats it as a hybrid of both. A historical retrospective shows that: “in practice, the Soviet Union allowed for variable use paradigms, some of which mimicked corporate, cooperative, nonprofit, and even individual ownership rights in a Western context. For example, cooperatives or collectives essentially owned a great deal of property. Individuals held other limited tracts, at least with regards to non-productive personal use property. ”
He recommends that any solutions to the problem “hew as closely as possible to the non-appropriation and common use [treaty] text, thus minimizing the possibility of outright judicial rejection of a request to recognize and enforce private property rights on the Martian surface.” He considers two common law principles consistent with such a reading, namely, the principles of adverse possession and tenancy-in-common. A person who wants to claim someone else’s property under the doctrine of adverse possession must enter the land, and
then hold (1) exclusive, (2) open and notorious, (3) adverse, and (4) continuous possession for a given minimal period of time. The exclusive element requires that the adverse occupier not share [*63] possession with the titleholder. The open and notorious element means that occupation has to be visible, so that the titleholder will have, or at least will have available, a notice of occupation, had she periodically checked on her property. The adverse requirement excludes occupiers that are holding possession with the permission of the titleholder – as a tenant, for example. The continuous element requires the occupier’s occupation to be uninterrupted.
Simmons at 62-63. If you are a lawyer or a science fiction writer it is worth reading his whole discussion of this issue for the nuances he explores with his imaginary settlers. He does believe that the owners should be able to sell, or “alienate” in legalese, their land, despite how repugnant this may be to Soviet precepts of real property, but he would allow to prevail the Western distaste for restraints on being able to dispose of one’s property.
The other common law principle that Simmons believes would have utility on Mars is that of tenancy in common, which he defines as follows:
Other than property and property rights obtained by prescription, adverse possession, or other means, Martian real property which is reasonably available for productive use or occupation by one or more Martian settlement organizations operating within proximity to one another on Mars shall be conclusively presumed to be held by those settlement organizations as tenants in common upon an express affirmative declaration by such a settlement organization claiming the property for its present or future use.
Simmons at 72. He offers the following rationale:
The inverse partition rule establishes a presumption of common ownership between two or more Martian settlement organizations operating within proximity to one another on the planet Mars. The rule does not apply to chattels or intangible property; nor does the rule does apply to individual Martian settlers, but only to the corporate bodies supervising and typically employing the Martian settlers in question. The rule is consistent with the 1967 Outer Space Treaty’s prohibition on national appropriation of celestial bodies as it merely recognizes land rights or land use rights in private corporate bodies which can be thought of as holding land as a joint collective. Moreover, the rule gives recognition to the treaty’s requirement that outer space [be] used in the common interest of all mankind while allowing corporate actors to efficiently allocate and exchange land and/or land use rights between themselves in a manner that puts Martian real property to its highest and best use. Only property that falls within the scope of the rule can be claimed by affirmative declaration; …; the vast other land areas of Mars remain entirely open present and future settlements without discrimination.
Id. Again, this discussion is worth reading in its entirety.
The Marxism is, if I understand correctly, reflected in the notion that open land on Mars falls under Article I’s common use principle. Also, I believe he views both the collective nature of corporations, which are likely to found the first settlements, and the tenancy-in-common as quasi-Marxist. Corporations may be likened to Soviet cooperatives, and tenancy in common is another form of collective ownership.
In short, his theory incorporate the common use principles of Article I, but then allows private appropriation without resort to the national appropriation forbidden by Article II. This requires viewing the courts as mere adjudicators of disputes, which is not a hard observation to make in light of the fact that that is indeed a function they serve. That they are a branch of a government does not mean that the court has appropriated any land, merely that it has settled a dispute as between two entities who both want to use it.
One nice thing about this theory is that rights get “recognized” rather than “granted.” That’s not a bad thing.
Looking forward: I vote that no governmental body do anything until we see how this quasi-Marxist experiment turns out:
China does not permit the private ownership of land. Instead, private parties may obtain the right to use property for up to seventy years. These parties own the structures on the land but not the underlying real estate. … Does the holder of a land use right have the ability to renew that right when it expires? If the holder has this ability, must it pay to renew the right? And, if the holder must pay, how much?
Under Simmons’ theory no action is necessary. The courts may settle whatever disputes come up between private parties.
Note: I’ve stripped the footnotes from the Simmons quotations.