Choice of Law

by Jeff Gaba

Part 1 appears in this issue.

conclusion

“The Karman Line was intended to reject the Earth common law maxim, Cuius est solum, eius est usque ad coelum et ad infernos: If you own the land, you own everything below it to the center of the earth and above it into the heavens. We submit that this provision of the Treaty establishes that jurisdiction over the surface of a planetary body does not extend into space.”

“But you would agree,” interrupted Justice Green, “that this provision only limits the jurisdictional limits of individual Earth governments and not the jurisdictional limits of Earth as a sovereign body. Does, for example, Earth International Law apply to bodies in low earth orbit?”

Vholes thought for a moment and then replied. “Although the issue of the reach of Earth International Law has not, to my knowledge, been addressed by any court, your Honor’s very question suggests the problem with the argument. You refer to low Earth orbit. Surely, Earth International Law does not apply generally to all interplanetary space. One would have to create an arbitrary limit to distinguish areas of space subject to Earth International Law from areas subject to Interplanetary Law as specified in the Treaty. We submit that the Treaty, in fact, specifies this point by reference to the Karman Line. And there is no dispute that Phobos orbits Mars well over nine thousand kilometers above its surface, deep in interplanetary space.”

“So,” Justice Yee asked, “if someone establishes a slave colony in low Earth orbit, they would be free from Earth jurisdiction and could operate with impunity.”

“Quite the contrary, Justice Yee,” replied Vholes. “Under the terms of the Treaty, outer space is subject to Interplanetary Law as determined by this Court. This law is to be based on principles of justice with reference to Earth’s International Common Law. We believe that slavery would constitute a violation of jus cogens, a norm of international and interplanetary law that no state may violate. We are not arguing for the creation of a lawless solar system, your Honor, simply for the proper allocation of jurisdiction among the sovereign bodies and this Court.”

“Let’s assume,” Justice Smith began, “that asteroids floating in interplanetary space are not subject to any planet’s jurisdiction. But certainly a moon, in permanent orbit around a planet, stands in a different position.”

“Let me respond in two ways, your Honor,” Vholes replied. “First, Luna is the moon of Earth, but it is not subject to Earth’s jurisdiction. It is, in fact, a sovereign body. At least since the Outer Space Treaty of 1967, Earth has recognized that no Earth country can assert jurisdiction over the Moon. Indeed, the Treaty at issue in this proceeding recognizes the independent sovereignty of Earth’s moon, Luna.

“Second, if you were inclined to treat other ‘natural’ moons as an extension of their planet, Phobos stands in a totally different position. Phobos is, in fact, an asteroid that as a happenstance of its trajectory and velocity was captured by Mars’ gravity and now orbits the planet. Unlike the Earth and Moon, Mars and Phobos do not share a common origin. Phobos is merely a passing stranger that has lingered near Mars, and it should no more be subject to Martian jurisdiction than any other asteroid.”

A red light on the lawyer’s lectern blinked on. “Thank you for your questions, but I see that my time is up.” With that Vholes closed his folder of notes and returned to his table.

Tulkinghorn then walked to the lectern. “Your honor, my name is Ezra Tulkinghorn and I represent the Respondent, Gabriella Griffins’ husband at her death.”

Justice Green laughed, and said, “You can say ‘Marco,’ Mr. Tulkinghorn, we are aware of who your client is. Before you begin, Mr. Tulkinghorn, I would like to ask you to clarify for me your view of the status of the Pre-Nuptial Agreement if we should find that Phobos is not subject to the jurisdiction of Mars.”

Tulkinghorn frowned at the question, but answered. “We believe that the Pre-Nuptial Agreement reflects Gabriella Griffin’s informed intention that the property she acquired after her marriage should, in the event of her death, go to her husband. Whether under Martian law or Interplanetary Law, that intent should be honored.

“But, respectfully, we believe that Phobos — and Deimos, for that matter — are subject to Martian jurisdiction, just as they are subject to its gravity. Their very names reflect that relationship. Upon their discovery, they were named in honor of their mythical father, Mars. Phobos is, and has always been, recognized as a moon of Mars. It is simply not in the same position as an interplanetary asteroid. As a moon of Mars, it is subject to Mars’ jurisdiction.

“But there is an alternative basis for reaching the conclusion that Phobos is subject to Mars’ jurisdiction. We assert that, if Phobos is subject to Interplanetary Law, then that law recognizes objects in outer space are res nullius, areas not owned by any jurisdiction. Under traditional Earth international law, lands that are res nullius may be owned by the first party to occupy and develop them. In such a case, Phobos would qualify as Martian land by virtue of its proximity to and control by the government of Mars. Indeed, the very marriage at issue in this case, Martian citizens physically present on Phobos for the purpose of a domestic marriage, indicates Mars’ possession of Phobos.”

Justice Madrid, who had otherwise remained silent, immediately jumped in. “Are you suggesting that this Court declare that the solar system is open to conquest by the first humans to get there? That doctrine has a sorry history on Earth. No indigenous life forms have yet been identified in the solar system, but rights based on conquest and occupation have not served indigenous peoples on Earth very well.”

“Justice Madrid,” replied Tulkinghorn, “we are simply suggesting that the doctrine of res nullius is a basis for resolving this matter. And we further suggest—”

“Mr. Tulkinghorn,” Justice Madrid interrupted, “wasn’t the doctrine of res nullius, the idea the solar system was open for conquest, rejected by the parties to the Treaty?”

“With respect, Justice Madrid,” Tulkinghorn replied, “I do not think that is the case. We know that during negotiations of the Treaty, the parties debated both application of res nullius, opening the solar system to conquest, and res communis, preventing private ownership of objects in the solar system. We know that the Treaty, in the end, simply did not address the status of rights to objects in the solar system. We can only speculate why.

“But since the Treaty is silent on the issue, this Court is free to reach its own conclusion. And we suggest that under traditional doctrines of international law, this Court could resolve the status of Phobos by application of the doctrine of res nullius. Mars law applies to Phobos by right of possession.

“We would point out, however, that a holding that Phobos is subject to Mars’ jurisdiction because it is its moon provides a satisfactory and far narrower basis to resolve this matter.”

“Mr. Tulkinghorn,” said Justice Green, “I would like to address a broader issue. It seems to me odd that a single individual should control the wealth of the asteroids. Although Earth and Luna are not parties to this proceeding, I can take notice of the fact that they have strong opposition to your client’s exercise of those rights. Are we obliged to recognize the legitimacy of the mining rights at issue in the case?”

Tulkinghorn appeared shocked by the question. “Your honor, the mining rights at issue were legitimately conferred by the governments of Earth, Mars and Luna. There is simply no legal basis for rejecting my client’s existing property rights. And it is certainly not an issue before this Court.”

“Perhaps,” said the Justice.

* * *

The solar system held its breath while waiting for the decision of the ICJ. In one sense, it hardly mattered whether Marco or Griffin and his backers controlled the wealth of the asteroids; Earth and Luna would still be dependent on whoever held the rights.

But there is the Devil you know, and Marco was known as the Devil. If he won, everyone knew that his economic stranglehold on Earth and Luna would continue. Indeed, Earth and Luna advanced their plans to invade Mars if Marco won. They believed they were certain to win any military contest, but an invasion was also certain to create the economic chaos they feared and undermine the existing interplanetary political situation.

Griffin, although known to be controlled by a powerful consortium, was viewed as a less threatening figure. Both Earth and Luna plotted means short of a military invasion to control Griffin if he were awarded the mining rights. Mars and Luna used every asset they had to try to influence the Court’s decision in Griffin’s favor.

But the outcome was uncertain, and the solar system was left gasping for breath.

* * *

The unanimous ruling from the ICJ came remarkably quickly, and Tulkinghorn sat Marco down to explain it.

“Well, Marco, in one sense you won. The Court did hold that Phobos is not subject to the jurisdiction of Mars but is governed by Interplanetary Law.”

“Oh. hell,” said Marco angrily, “that doesn’t sound like winning to me.”

“For once, exercise a little patience and let me finish,” said Tulkinghorn. “The Court held that although Phobos is subject to Interplanetary Law, under that law, Gabriella’s intention as expressed in the Pre-Nuptial Agreement should be honored. In other words, you will inherit all the property she obtained during your marriage.”

Marco let out a yell of exaltation: “Sonofabitch, Tulky, you did it! Those bastards on Earth and Luna are going to pay now. I’m going to be King of the Solar System! I take back all those nasty things I said about lawyers.”

“I wouldn’t take them back yet. There’s more to the ruling.”

“What do you mean? I won!”

“Pyrrhic victory, Marco. Pyrrhic victory. You inherit everything Gabriella owned, but it turns out she didn’t own much. The Court ruled that, in the absence of a specific declaration in the Treaty, all objects in the solar system are to be treated as part of the ‘Common Heritage of Humanity.’ In other words, everything in the solar system, other than Earth, Mars and the Moon, are considered to be the property of all humanity and cannot be privately owned. So much for your control of the wealth of the asteroids.

“I have to say that I didn’t see that coming. Neither we nor the other side raised the issue, obviously. The ICJ did this on its own. The concept of a Common Heritage of Humanity is a vague concept in Earth International law based on the premise that there are certain elements of the environment, like Earth’s atmosphere or deep seabed, that inherently belong to humanity as a whole and must be administered in humanity’s benefit.

“I must say it’s a rather neat solution to the problem of asteroids. It means that you’ve lost your economic leverage over Earth and Luna. But cheer up, the Court held that you do get to keep your existing mining rights, but all profits from the mining of the asteroids are to be held in trust for humans as a whole. Under the Court’s ruling, decisions on whether to mine, who to sell to and at what price are to be made by a Trustee appointed by the Court. You can get paid for mining the asteroids, but the profits go to the trust. Poor Mr. Griffin gets nothing.

“It’s a great day for humanity,” Tulkinghorn said dryly. “The ICJ accomplished what the politicians you bought could not: protect the interests of all people from people like you. Not much room now for you to blackmail Earth and Luna to do what you want. So maybe no ‘King Marco.’

“And all because you got married on Phobos. It strikes me that there is a certain irony in the fact that humanity, and not you, owns the wealth of space just because you got drunk and wanted a little low-gravity sex. I just didn’t see this coming. My bad.”

Tulkinghorn, expecting an explosion of fury from Marco, was surprised to see him staring at the wall of his office with a little smile on his face. Marco turned to the lawyer and laughed. “Never underestimate the power of power, Tulkinghorn.”

“You think you have a way around the ruling?”

“Perhaps,” Marco said.

* * *

Marco vanished from public view for some time, and when he reappeared, it was to make a series of startling announcements. On behalf of his mining companies, he announced that no rare earth minerals were to be shipped from the asteroids to Earth or Luna. On behalf of the government of Mars, he announced that all citizens of Earth and Luna were being expelled from Mars. Those who did not leave immediately would be held in government concentration camps.

He also announced that no ship from Earth or Luna would be allowed to land on Mars. In light of these announcements, few people noticed his statement of support for the holding of the ICJ and the application of Interplanetary Law.

Unsurprisingly, Earth and Luna declared that a state of war existed between them and Mars and announced an embargo of all shipments of goods to Mars. The second, formal “Gabriella War” had begun. It seemed to be a phony war when neither Earth nor Luna took any military action in the month after the war was declared.

Tulkinghorn was summoned to meet with Marco shortly after these events.

“Congratulations, Marco,” Tulkinghorn began. “You’re the first leader in history to put his own country under siege. We’re totally cut off here on Mars. We can’t defeat both Earth and Luna militarily, and we don’t have the resources to hold out on our own forever. They are going to seize our mining colonies and obtain all the rare earth materials they need. Very nice set of moves.”

“As a military and economic thinker, you’re an excellent lawyer, Tulky,” Marco replied cheerfully. “I can’t believe I didn’t consult you earlier. And, as a matter of physics, you are wrong in part of your analysis. Without refueling on Mars, there is no way to make asteroid mining economically sustainable. They can use a low-energy return trajectory to get the minerals from the asteroids to Earth, but getting out to the asteroids is an energy bitch. We can prevent their landing on Mars and our ‘police cruisers’ can disrupt any fuel resupply efforts they may attempt. Trust me, they’re as vulnerable to siege as we are. And suppose Earth ships couldn’t land on Luna? That would really screw them.”

“Why couldn’t Earth ships land on Luna? What do you know?”

“Lots and lots, Tulky. By the way, how would you like to become the ruler of a sovereign body in the solar system? You wouldn’t forget your friends, would you?”

* * *

Marco’s comments became clear when, two months into the war, Mars and Luna announced the signing of a peace treaty. Kaine, chief executive of Luna, announced that in the interests of interplanetary stability, Luna was prepared to join with Mars in a vote to amend the Treaty on the Rights of Sovereign Bodies to recognize private rights to interplanetary bodies when endorsed by a majority of members of the Treaty. He also announced that Luna was prepared to recognize the “Union of Asteroids” as a sovereign body under the Treaty with the right to appoint additional members to the Interplanetary Court of Justice.

Kaine did not announce the transfer of a substantial share of Marco’s mining rights to his private account. It seemed clear whom Marco had visited after the ICJ ruling.

Earth’s plan to send a fleet of military vessels to attempt an occupation of Mars came to an abrupt halt when it lost access to Luna bases. It wasn’t long before its reserves of rare earth materials were depleted and its energy systems began to fail. Elmo, Chief Executive of Earth, reluctantly agreed to send representatives from Earth to a Conference of Sovereign Bodies to consider modifications of the Treaty.

The Conference turned into a pro forma exercise that gave Marco all he wanted. His private mining rights were endorsed, the asteroids were recognized as a sovereign body with Tulkinghorn as Chief Executive, and the ICJ was reshaped to Marco’s will.

As a nice concluding touch, Marco had himself named as the President of the Council of Sovereign Bodies, the Chief Executive of the Solar System. In memory of Gabriella, he finally designated a new First Wife. Marco was as happy as any King of the Solar System could be.