The Powers of the Earth

In law schools professors give students all sorts of hypothetical scenarios to help them learn to spot the legal issues that percolate in real life.  For example, if you are a multi-national partnership formed under the laws of the Cayman Islands and launching from the Pacific Ocean do you need an FAA launch license? What follow up questions do you need to ask to figure this out?  I wish I could assign near-future science fiction to my space law class.  If it were the only class they were taking, I think we’d have a lot of fun.  Writing about it will have to do in the meantime.

Article II of the Outer Space Treaty prohibits claims of sovereignty on the moon. For those who wonder what an anarchocapitalist society might look like on the moon, and how it would contrast with a declining, stagnating United States, look no further than Travis Corcoran’s The Powers of the Earth. It just got nominated for a Prometheus Award, which is handed out annually for the best liberty-focused science fiction novel.

There’s a lot going on in the story itself. Earth has learned of the growing wealth of the secret city on the moon and is planning to invade. Mike Martin, the guy who was hounded from the United States and founded Aristillus, is the only one trying to prepare for the inevitable invasion.  John, who rescued genetically enhanced Dogs from extermination and took them to the moon, is on a lunar walkabout with his closest friends, several Dogs, as the lunar satellites stop working.

This is all very exciting, but the real questions that pop out at the reader are twofold.  Does what happens between Mike and his commercial rival in a dispute over tunnel claims undermine Alex Salter’s theory on the importance of reputation in an environment of little to no government?  Also, and this question drove me a little crazy, did the United States in this story sign the Moon Treaty?  Spoilers may follow.

Salter’s theory on the discipline brought about by continuous dealings.  Long-time readers of this blog may recall an earlier post about Salter’s theory, but to recap, he posits that even if governments couldn’t recognize private property rights in outer space, private entities could still have private property.  Private actors dealing with each other all the time have sufficient incentives to deal honestly that contracts, property rights, and other hallmarks of a functioning economy and civilization will not be abandoned for the false glamor of squalor and barbarism.   Salter acknowledges the Prisoner’s Dilemma, where two individuals face the choice between respecting each other’s property rights or taking the other’s property. Respect results in them getting to keep their own property. But if one of them were to defect from the norms of civilized conduct that person could get double the property. Without a sovereign to enforce their respective property claims, the property-maximizing approach could be to cheat. As Salter notes, however, the scenario is limited in that it assumes a one-time interaction between the two parties, which is not realistic. In real life, there should be multiple interactions over a lifetime. If one of them were to defect, the lost trust would hinder future dealings.

Well, Mike Martin of Morlock Engineering loses trust in one of his competitors.   Morlock is boring a new tunnel for mining because that’s what Mike does.  He feels confident that he’s in a good location because he’s registered his claim with one of the private registry services, which has checked with the other private registry service that there’s no conflict with anyone else’s claim.  But when Morlock’s boring machine breaks through into a tunnel that is a) already there and drilled by someone else, and b) registered with another registry service by trickery, Mike is out a lot of money.

What does Salter’s theory say about this?  Salter allows for private courts.  Mike’s anarchocapitalist vision does not.  Although Corcoran does not go into all the nerdy legal detail that people like me find so interesting, the incident highlights the need for some means of dispute resolution.  Even with the importance of not tarnishing your reputation, any given person may succumb to the allure of immediate short term advantage.  Mike’s rival does.

Although it provides an honest portrayal of the pitfalls of relying on reputation, in the book we see no resolution. There are other things going on, after all.  I suspect, however, that Mike will eventually have to cave and allow some sort of private court system to develop, assuming things work out with the invasion.  Because Mike does not contract with his rival, simple shunning will not work.  He needs a system to provide for investigation and redress, and it could even be a non-governmental dispute resolution system.

Salter notes that the historical roots for private court systems on Earth extend  back to the 9th and 10th centuries, when Europe’s trade began recovering from the collapse of the Roman Empire. Merchants developed law enforced in private, merchant-developed courts. This medieval lex mercatoria “was a system of self-enforcing property rights according to legal rules that emerged out of dispute resolution among interested parties.” The merchant courts, Salter explains, developed their own rules of evidence, allowed for consulting experts, and provided quicker decisions than the national courts of the time. Because the courts had no formal enforcement power, enforcement relied on reputational effects. Failure to comply with a decision branded a merchant  a defector and an unsafe trading partner.  Private courts have not vanished, even with the court systems of the modern nation state. Salter explains that nowadays at least 90 percent of international commerce contracts provide for private arbitration in the event of a dispute.

The Moon Treaty.  Meanwhile, back on Earth, it is clear that the U.S. regime is unfamiliar with the tale of the goose who laid the golden eggs, and is busy disincentivizing producers, planning the economy and doing it poorly, making sure no disruptive new technologies upend existing industries, and turning to the UN for peacekeeping.  Strangely, the economy is stagnating.

The Powers of the Earth does not say whether the United States has signed the Moon Treaty (scroll down at the link)  in this future; but, setting aside how the U.S. and the United Nations ignore Article III’s restrictions on the use of force, I’m guessing it has.  There are a couple points in the treaty that make me think this.

The treaty’s Article VII states:

In exploring and using the moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise.

It is highly possible that the United States of this unpleasant future might have tied its own hands by agreeing that no one could do much of anything on the moon.  Mining could disrupt “the existing balance of the environment … by introducing adverse changes.”  Using up lunar ice by converting it to rocket fuel or for human consumption could also be construed as disrupting the balance of the environment.  The citizens of Aristillus do all these things, and thus provide an additional grounds–besides tax avoidance–for invasion.  Articles VIII and IX do allow for installations, facilities, and manned an unmanned stations, but possibly only those of States Parties.

Which brings us to the better known Article XI, which states, in relevant part:

2. The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

3. Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non- governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article.

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5. States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.

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7. The main purposes of the international regime to be established shall include:

(a) The orderly and safe development of the natural resources of the moon;

(b) The rational management of those resources;

(c) The expansion of opportunities in the use of those resources;

(d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.

8. All the activities with respect to the natural resources of the moon shall be carried out in a manner compatible with the purposes specified in paragraph 7 of this article and the provisions of article 6, paragraph 2, of this Agreement.

(Emphasis added).  Where Article II of the Outer Space Treaty prohibits national appropriation, the Moon Treaty rules out private property as well.  So, never mind that Article VII’s restrictions could be interpreted to prohibit most commercial activity, Article XI ensures that a private entity would have no control of its property, no collateral to leverage, and no rights in its investment.  Moreover, once exploitation looks feasible, paragraph 5 states that an international regime must be created to govern exploitation.  To the extent that the treaty permits the removal of resources from the moon, paragraph 8 reminds us that Article VI provides those resources must be used for science.  Finding all these restrictions acceptable seems in keeping with a fictional regime that ensures disruptive technologies don’t rock any economic boats on Earth.  Thus, I’m going to guess that the U.S. in The Powers of the Earth has signed the Moon Treaty.

I’m a little puzzled about some of the contradictions of the Moon Treaty.  For example, Article XI contemplates the development of the moon’s resources.  How does this square with maintaining the moon’s existing balance and with limiting uses to science?  I guess the intergovernmental regime will explain all that.

About the book tab:  In addition to putting my own books in the book tab, I like to list the books I’ve reviewed for space law issues.  If you check the tab, you’ll see a number that contain near-future science fiction, and they’ve all presented some  interesting space law angle.  A search on its title will lead you to the corresponding book review.  Check ’em out.