I’ve had several conversations recently regarding how a space settlement might resolve disputes between it and any neighbors. There appears to be a concern that either a whole new body of law must be developed for disputes related to outer space or, at the very least, there need to be courts there.
Although lawyers in space is a consummation devoutly to be wished, I’m not sure a physical presence in space will be necessary at the outset. Nor need we stop all outward progress out of concern that we don’t yet have courts on the Moon or Mars. Do we need a whole new body of law to settle disputes? Probably not.
In thinking about this, we need to skip ahead past the arrival of humans on the Moon or Mars, past their struggles with the lunar or Martian regolith (what terrestrial miners say they call slag) and dust, and past the building of habitats and the extraction of water. Let’s jump ahead to where a settlement has wrestled a habitat into an alien rill and set up mining operations. Another settlement sets up shop nearby. Its inhabitants start drilling for water, and, guess what? The two meet up somewhere in the middle between their respective habitats. What to do?
If this were a movie, they would shoot at each other. However, because this is the near future, let’s assume they are both corporations incorporated somewhere in the United States. Single individuals probably won’t be able to afford such activities without outside investment.
In this country, corporations tend not to shoot at each other when they disagree. What will they do instead? They’ll have their lawyers negotiate with each other.
If those negotiations fail, they may go to court. Probably on Earth since that’s where the courts are. Probably in the United States, since that’s where they’re incorporated. Just as today, when disputes over satellite issues get settled on the ground, on Earth, so may future disputes be settled here for a good long time.
Professor Thomas E. Simmons, writing for the Gonzaga Law Review, explored the question of dispute settlement on his way to talking about property rights in Deploying the Common Law to Quasi-Marxist Property on Mars. What may have seemed obvious to him, however, is perhaps worth noting here. In his scenario, the imaginary dispute takes place on Mars between Mars One and Mars Two:
There are limitations to conducting a resolution, proceeding, or trial of a dispute arising from Mars on Earth: all, or most, of the witnesses and relevant evidence are on a planet some hundreds of millions of kilometers away. Nevertheless, a far away, neutral, and qualified decision making body will likely control the outcome of any disputes between Mars One employees.
If the second Martian settlement consists of employees or associates of an entity other than Mars One (say, for purposes of convenience, “Mars Two”), preconceived and prearranged constraints, dispute resolution formats, and choice of law and venue selection clauses will likely be absent, although the United States would retain sovereign control and jurisdiction over both Martian settlements, assuming both were launched from U.S. soil. When the second settlement encounters the first, pre-arranged mechanisms for alternative dispute resolution may be nonexistent. Still, an Earth-bound decision making body will likely provide the kind of qualified and objective deliberation that will be unavailable on Mars. Moreover, the firms employing the settlers will themselves have input over questions like venue, and they will certainly prefer to rely on established dispute resolution mechanisms on Earth, rather than on anything the settlers might attempt in the way of Martian forums.
When the Mars Two settlers claim use of a hillside for their photovoltaic panels or water-extraction mechanics and the Mars One settlers claim prior appropriation of the same hillside for their own use, to what frameworks will an Earth-bound jurist turn? The availability of appropriate legal frameworks is essential to avoid a might-makes-right resolution of the Martian settlers’ irreconcilable interests and assertions. How can the rule of law be fashioned to mediate the confrontation? Will Earth-originating doctrines provide a solution that will be respected by the opposing settlements? Will the evolution of a Martian-esque rule of law be required to take account of the unique situations of the first settlors? Or will Earth common law doctrines make room for the needs and reasonable expectations of the Martian settlers?
(For those interested, Simmons predicts that the centuries-old common law of adverse possession will serve just fine.)
What about if the settlement don’t come from the same countries? How will they resolve disputes? Just like they do now. If they are governmental, their governments will talk to each other. If they are private companies who can’t reach understandings otherwise, they will figure out which courts to go to. Just like they do now.
I feel that it’s unlikely that two Martian colonies would situate close enough to each other to “meet” until well after there is enough settlement on Mars to include courts.
Other risk, such as accidentally dropping your lander on someone we else, could possibly be managed by a system of bonds.
On the one hand, your theory suggests that we really don’t need to worry about conflicts yet.
On the other hand, there may be a desire for proximity for two reasons. In case of emergency, it would be nice to be around other people. The richest source of unobtainium might be alluring to more than one settlement group.
Me, I’m of the space-is-vast mindset, and don’t think we need to worry too much too soon, but even if we do, Earth has lots of courts.
My understanding of the art of lawyering is that it’s your job to anticipate problems for your clients, not necessarily figure out how to assess the relative risk of those problems happening.
🙂