INTERPLANETARY CONSTITUTIONALISM: A MARTIAN CONSTITUTION.

• Author: Bonardi, Mia

CONTENTS I. Introduction 132 II. A Martian Constitution 134 a. Codified vs. Uncodified 136 b. Type of Government 138 c. Human (and Nonhuman) Rights 140 d. "Martian Zone of Sovereignty" 142 III. Declaring Independence 144 IV. Conclusion 145 I. Introduction

What is a constitution? What relationship does, must, or should a populace have with its constitution? Do constitutions bring people together or faction them off? How does this change, if at all, if the constitution is codified or uncodified? What is the purpose of a constitution? What does a constitution presuppose of its constituents? Do people write constitutions, or do constitutions right people?

Progression toward future extraterrestrial governance will require answers to these questions. With humans currently in orbit around Earth on the International Space Station ("ISS") and targets to put them back on the Moon in this decade and on Mars in the next, exploring an extraterrestrial governance is timely. (1) There are several proposed Martian constitutions based on earthly models, but as of yet, obviously none formed by a Martian populace. (2) The current drive to inhabit celestial bodies is commercial: "the opportunity for private profit, in one form or another, is an essential incentive for the advancement of space exploration, especially as the expected gains are of high uncertainty." (3) Similar to early European explorers in search of new trade routes, could the commercialization of outer space lead to an unfolding of novel governance and "discovery" of new worlds? (4) What ethical considerations must be made during such a pursuit? (5) Considering a Martian constitution is pertinent to current constitutionalism on Earth and this article argues that (1) codification is vital to accommodate and adapt to a shifting populace that could eventually include artificially intelligent or extraterrestrial life; (2) there will likely be a need for nonhuman rights, which should only reinforce and expand human rights on Earth; (3) a rethinking of traditional notions of jurisdiction/"zones of sovereignty" should guide governments through technological innovations of the 21st century; and (4) a declaration of Martian independence will likely precede any Martian constitution in order to gain adequate interplanetary recognition and enforce a Martian "zone of sovereignty."

This article does not intend to cover all topics that the establishment of a Martian constitution would need to address. Specifically, this article does not discuss the economic model of a Martian society or the form of property ownership that could exist. These topics have already been thoroughly addressed. (6) Instead, Part II of this article discusses why Mars is best suited for governance independent of Earth, as compared to the Moon. (7) Part II(a) argues that a Martian constitution must be codified to accommodate and adapt to a shifting populace that could eventually include artificially intelligent or extraterrestrial life. (8) Part II(b) also argues that the type of government on Mars must align with the practice of Mars being governed independent of earthly states. (9) Part II(c) argues that many human rights (seemingly) unique to Mars would ultimately just be building upon long-known and understood concepts of human rights on Earth. (10) Part II(c) also argues that including rights for non-human beings in a Martian constitution, and normalizing and preparing for such rights, is crucial. Part II(d) argues, based on Hannah Earnshaw and James Gilley's conclusions, that a Martian "zone of sovereignty" should consist of not only the planet Mars, but also its moons, gravitational well, and the entire orbit of such parts of this larger Martian system (See Figure 1). (11) Part III discusses how a declaration of Martian independence will likely precede any Martian constitution. (12)

2. A Martian Constitution

   Earthly states will by their nature try to maintain control of any extraterrestrial human settlements. However, like the American colonies that sprouted in the wake of the early European explorers, states could find it difficult to maintain control of a distant and disconnected populace. (13) Yet, this article does not argue this will be the case for the Moon:

   The significance of Earth's Moon to humanity throughout history is immeasurable. Since time immemorial it has been a comforting lantern in the darkness of night, a loved and revered subject of religious devotion and myth, and inspiration for song and story around the world in all ages. All people on Earth have benefited from its physical effects: the ebb and flow of the tides, the light it provides at night-time, and even the planetary stability that Earth enjoys due to the Moon's orbit potentially regulating the amount that Earth tilts on its axis. More recently, scientific study of the Moon by orbiting satellites and by missions that have landed on its surface has provided humanity on Earth with a wealth of geological, seismological, and chemical data that offers unparalleled insight into the formation and evolution of their own planetary system, as well as a narrative of the human exploration of space that has served as inspiration for new generations of scientists, the impact of which can scarcely be calculated. In the future, these benefits of the Moon will only expand as missions become more sophisticated, with the Moon potentially serving as a departure point for missions from Earth travelling deeper into the Solar system. (14) As such, this article does not propose that the Moon will have a separate, independent constitution of the sovereign earthly states, or that the possibility is even likely. (15) However, unlike the Earth-Moon connection explained above, there is no parallel Earth-Mars connection and the relative distance from Earth to Mars is always greater than that to the Moon. (16) This also has a legal significance:

   Travel to Mars is likely to take at least six months. Extradition and enforcement would be difficult for the United States; it might be logistically impossible for certain nations to achieve justice for their nationals who are injured aboard a Mars colony. While this does not legally change whether or not a state will have jurisdiction, it does suggest that an alternative which does not rely on distant entities to exercise control may be preferable. (17) Further, there is a specific interest in the human settlement of Mars rather than other planetary bodies:

   [Mars] is far more capable of sustaining human life than any other planetary body in the Solar System. Roughly half the size of Earth, and with about the same amount of dry land, Mars' gravity and temperature are within the range of human tolerance. It is already known that Mars possesses vast resources of frozen carbon dioxide from which the important fuels of oxygen, deuterium and helium-3 can be derived. Liquid water, which could be used both for its oxygen and for irrigation in agriculture, is now thought to exist not far beneath the planet's surface... . Mars' atmosphere, temperature and air pressure could be made to sustain human life through a complex process called terraforming, rendering the planet a potential refuge for humans should Earth become uninhabitable... . Mars is the only such celestial body in the solar system to have a 24 hour day other than Earth, which could allow greenhouses to be used to create gases necessary for human life. (18) Thus, this article argues that it is more likely, and possibly even necessary, that Mars have its own constitution and independent governance from earthly states. Part II(d) below discusses the legal implications of this argument under the Outer Space Treaty.

   1. Codified vs. Uncodified

      Black's Law Dictionary defines a constitution as:

      the organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and...