Situation #2: Aliens in South Africa

In a scenario similar to the premise of District 9, a lone alien spaceship lands in South Africa. The aliens’ behavior and appearance give no indication that they intend any harm to humanity, but the vast majority of States are unwilling to accept that at face value. South Africa, however, feels that it has the situation under control, and wants to treat with the aliens without foreign interference. The government of South Africa refuses to allow any other nations to visit the aliens or become involved in the situation, and only gives cursory answers to questions about the extraterrestrial visitors. Resolution through diplomacy does not appear likely, so if other states want to speak to, examine, or blow up the aliens, they can only do so by the use of force against the territorial integrity and political independence of South Africa — something which is absolutely prohibited under international law.

Do other States, then, have any available options under international law besides engaging in illegal acts of war against South Africa?

Possibly. The United Nations Security Council does have the power to authorize use of force in certain situations. However, Article 2.7 of the UN Charter exempts matters within the domestic jurisdiction of a state from UN control, unless a threat to the peace is involved:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such domestic maters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

Therefore, under Art. 2.7, if aliens land, and (1) by all appearances the aliens intend no threat to humanity, and (2) no one but the host state is aware of the alien presence, international law is not relevant. End of story. It would then be a matter essentially within South Africa’s domestic jurisdiction. (Plus, well, if no one knows about it, there’s no one who can raise the issue in the first place.)

If both these conditions are not present, then international law comes back into play.

1. What if the aliens are potentially a threat to humanity? If a host state has reason to believe that the aliens do pose a threat to other nations, then international law would likely require such disclosure to other nations. In Corfu Channel, the Court found an obligation to notify other states of imminent danger, based upon two principles. First, a duty to warn stems from elementary considerations of humanity, which are “even more exacting in peace than in war.” Second, the sic utere principle: no state may knowingly allow its territory to be used in a manner contrary to the rights of others.

Obviously, many states would argue that any alien contact represents a per se threat to humanity, therefore making disclosure mandatory in any case of alien contact. However, for now, I’m going to assume whether or not the aliens pose a threat is a question of fact and not a question of law. But, if the aliens would somehow threaten the rights of another nation, the host state would be obliged to inform that nation of the alien’s existence. And once other states know about the aliens, the resulting brouhaha will almost certainly mandate UN involvement.

Also note that if the aliens are kept secret by a select executive intelligence agency, so that all the rest of the South African government has no knowledge of the alien’s existence, South Africa is still liable under international law for any damage caused by the aliens. Under Article 4 of the Draft Articles on State Responsibility, the conduct of any State government organ is attributed to the State as a whole.

2. What happens when other States learn of the aliens’ presence? Even assuming that the aliens truly are a bunch of peace-loving extraterrestrial hippies, if other states become aware of the aliens’ existence, they will without a doubt want to be involved in the alien-human interaction. If South Africa refuses to let them in, the only lawful option available to the other States is to attempt to have the Security Council intervene.

Article 34 of the United Nations Charter gives the Security Council the power to “investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.” As states will have a general global freak-out over the existences of aliens, an alien landing on earth will “likely endanger the maintenance of international peace.” So the Security Council will be able to investigate the alien issue, and will also have the power “determine the existence of any threat to the peace, breach of the peace, or act of aggression.” (Art. 39). After such a determination has been made, the Security Council can then decide upon what actions they should undertake to maintain or restore international peace; under Article 42, the kinds of actions the Security Council is permitted to authorize is a lawful use of force.

But, before the Security Council can use force, it must find international peace is threatened. Would such a determination truly be justified here? If aliens simply land in South Africa and intend no harm to anyone, then by definition no “breach of the peace” or “act of aggression” has occurred. Thus, it must be found that the mere peaceful presence of aliens is a “threat to the peace” in order for the Security Council to authorize use of force under Chapter VII.

Although I think in practice the Security Council likely would reach such a finding, I also think it can be reasonably argued such a determination would be an abuse of the Security Council’s Article 24 powers. Article 2.7 of the Charter makes it clear that, if the aliens are not a threat to international peace, it is for South Africa and South Africa alone to decide how to deal with with.

The Security Council would, however, be acting well within its authorized powers by making an Article VI recommendation to South Africa regarding what steps South Africa should take to confirm to other nations that the aliens are not a threat to their security. If South Africa continued to ignore the Security Council’s recommendations, at a certain point it would probably be fair to declare that South Africa’s refusal to cooperate and to verify the peaceful intentions of the aliens was itself a breach of the peace. By not verifying sufficiently that no danger existed, other States would feel so threatened and unsecure, that in order to maintain international peace, the Security Council would have grounds for invoking Chapter VII and authorizing States (or a UN taskforce) to use force against South Africa.

Situation #3: Aliens in France

Take the same scenario discussed above, only now, instead of landing in South Africa, the aliens decide to land in France. Who knows, maybe they’re homesick, and frog legs and snails remind them of the cuisine on their home planet.

But under international law, the landing location matters. As one of the five permanent members of the Security Council, France possesses a veto over all Security Council actions. This means that if France says no to any proposed resolution, the resolution fails.

So if France doesn’t want other states to be involved in the Frenchman-Alien deliberation, then it is also going to vote “no” when the Security Council proposes using Chapter VII powers to force France into allowing other States to check out the aliens for themselves.

Sure, other states can hold France liable for any breaches of international law they make by keeping the aliens to themselves, but that’s not the relief other states would want. If the aliens did decide to pose a threat to humanity, and France let them zap a couple cities off the face of the planet, then the right to self-defense kicks in and the attacked nations could use force against France to defend themselves.

But short of that, only one option is left to the world: using the Uniting for Peace Resolution to have the General Assembly override France’s veto vote.

But let’s say for now either the GA can’t get the votes together for a United For Peace authorization of use of force, or that it’s crystal clear that the presence of aliens in France doesn’t represent a threat to any other State, and therefore the aliens are solely within France’s domestic jurisdiction and the UN cannot force itself into France’s affairs.

What happens if France or South Africa tries to assimilate the aliens into their own society, or otherwise attempt to govern them? Does international law dictate how the state may treat them?

Unfortunately for the aliens, the Universal Declaration of Human Rights probably won’t give them any protection. That treaty is pretty explicit about the whole “human being” thing. Maybe France could be forced to accord the aliens the rights found in the International Covenant on Civil and Political Rights, which declares that “all peoples” have rights of self-determination, and that all states must ensure “all individuals” within their territory are not discriminated against. ‘Peoples’ and ‘individuals’, unlike ‘human beings’, could be interpreted, without too much stretching, to extend to all groups of intelligent beings whether human or not. (True, the preamble talks about “inherent dignity of the human person,” but you might be able to crush away any Object & Purpose counterargument by explaining it as flowery language not meant to be taken literally.)

However, at least one “human” rights treaty would almost certainly apply to how a nation treated extraterrestrials: the Genocide Convention. Genocide is an act committed with the intent to destroy a “national, ethnical, racial, or religious group.” So, technically, if France tried to commit any of the Article II acts against the aliens, it’d be because of an intent to destroy members of a certain national group — and I don’t see any requirement in the Genocide Convention that the “nationality” be an Earth one.

Going back to District 9 now, a strong case could be made that South Africa was in blatant violation of the Genocide Convention. In the movie, South African officials are depicted as destroying all the alien eggs they find. This is a textbook example of an act prohibited by the Genocide Convention, which defines “imposing measures intended to prevent births within the group” as an act of genocide.

So maybe in District 9, other nations should’ve invoked the Responsibility To Protect as justification for a humanitarian intervention in South Africa in order to protect the Prawns.

Previously: The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations; Part II — The Law of Outer Space Encounters With Extraterrestrials by Sub-State Entities; and Part III.1 – The Law of First Contact on Earth, Aliens on the High Seas.

-Susan

What happens if extraterrestrials slip through our solar system undetected, and are only encountered for the first time when they arrive on Earth itself?

Space law would no longer be applicable; rather, the situation would be governed by more traditional and more firmly established notions of international law. Although international/space law has not yet reached an ironclad understanding on where precisely outer space begins, for purposes of domestic laws and aeronautics regulations, the limit is most often set as the lowest point from sea level where an object can orbit the earth, i.e., 62 miles/100 kilometers up. (Objects cannot orbit for long at this altitude, due to air resistance, but they can take a few spins around the block.) Australia, in fact, has been proactive at setting the 100km boundary, and it does seem likely that it is eventually going to become the standard delineation.

So if aliens visit earth and are doing anything other than orbiting the planet, it’s good old fashion international law that’s going to provide any legal framework for the alien visitation. This means that, in practice, law will be a lot more relevant than it would be in the case of an outer space encounter.

A state’s sovereignty over its territory is one of the most fundamental concepts of international law. A state may not take action within another state’s territory absent consent. There are exceptions to every rule, of course. But although many parts of international law are often discarded or ignored, respect for a sovereign state’s territory is taken very seriously indeed.

In contrast, it would be fair to say that, in the not exactly probable event of an alien encounter in space, international law would most likely be given minimum lip service and little more. Space law is an infant body of law, and for obvious reasons, it is overloaded on the opinio juris component as compared to the state practice component. That’s a good indication that, in the event of a dramatic change in circumstances, states will not be reluctant to act in ways inconsistent with space law as it is currently understood, and instead will seek to justify their actions after-the-fact on the basis of previously “undiscovered” interpretations of law.

So, in a nutshell: international law would not survive five minutes past the first alien encounter in space.

On Earth, however, territorial sovereignty has such a deeply established normative and positive force in shaping the relationships between states that even in the event of an extraterrestrial landing, international law would continue to play a predominant role in how the world community reacted.

The exact strictures of international law to be applied, however, will depend in practice upon the location where the aliens choose to land.

Situation #1: Aliens land in the middle of the Atlantic Ocean and hover out over the high seas.

This is actually the worst possible scenario, for the aliens and probably also for earth. A “too many cooks in the kitchen” problem would quickly develop, as the high seas are open to all states. This includes a freedom of navigation, a freedom of overflight, and a freedom of scientific research. Essentially, every state would be free to go to, investigate, or attempt to talk to the alien spaceship — so that if North Korea wanted to start doing some “scientific research” on the ship, it would not be a straight forward matter for any State to justify prohibiting them from doing so.

If it turns out the aliens are friendly, Earth nations would be able to repel any attempts by non-state actors to attack the spaceship, as all States possess universal jurisdiction over pirates on the high seas. It wouldn’t be too much of a stretch to argue that unprovoked violence directed at a spaceship is an act of piracy, entitling other nations to use force to repel any attempts by private parties to act aggressively towards the spaceship.

But attacks on the spaceship by State actors will not be so easily regulated. Under Article 95 of the Convention on the Law of the Sea, “Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.” So if it’s North Korea acting aggressively against the aliens, we’ve got a problem.

True, Article 88 of the Law of the Sea Convention does declare that “The high seas shall be reserved for peaceful purposes.” But in the words of Captain Barbossa… this is really more of what you’d call a guideline than an actual rule. It doesn’t actually prohibit military actions, per se. It is international law of war, not the law of the sea, that would be the primary body of law to govern hostilities on the high seas. Although under international law, the threat or use of force is traditionally prohibited, it does not, technically speaking, prohibit the use of force against aliens.

Article 2:4 of the UN Charter declares, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” An alien spaceship does not obviously possess territorial integrity or political independence as a state, or at least not so clearly that North Korea couldn’t make a facially legitimate claim that Article 2:4 doesn’t apply to them. So the aliens would be fair game.

This doesn’t necessarily mean they’re defenseless, under international law. The right of self-defense is preserved in the UN Charter, and self-defense does extend to defense of others (I’ll assume for now aliens could qualify as part of the “collective” in Article 51) but in the chaos of an international free-for-all on the high seas, this would be of little practical protection. Besides, it’s not exactly settled law, regarding what acts a State can take against an extraterrestrial in the high seas before third party rights of self-defense kick in.

End result? The Law of the Sea isn’t going to be sufficient to protect or regulate any alien encounters on the high seas. If we’re lucky, however, the UN Security Council will be able to reach some kind of agreement and enable collective action to be taken. Under Article 42 of the UN charter, a blockade is one of the actions the Security Council can authorize to restore peace and international order. Although “blockades” are traditionally understood to apply to coastal navigation, it is not a heavy abuse of the language to say Article 42 would permit the Security Council to establish a blockade in the high seas. In this manner, the Security Council could authorize the use of force to protect the alien ship and to impose order on the normally unregulated oceans.

Next up tomorrow: The Law of Aliens, Part III.2: Extraterrestrials in Somalia South Africa and Extraterrestrials in France.

Previously: The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations, and Part II — The Law of Outer Space Encounters With Extraterrestrials by Sub-State Entities.

-Susan

But there are a fair few investors out there who want to prove him wrong, and one day, inevitably, if we ever want to truly expand into space rather than merely treat the cosmos as a glorified science lab, it’s going to take private commercial initiative to do it. So what happens if it’s a private corporate entity that first encounters intelligent extraterrestrial life?

Public international law (as opposed to conflicts of law) governs, in theory, only the relationships between sovereign states, not the actions of private individuals. The body of space law recognizes this, and rather than imposing restrictions on private spacecraft, it instead imposes obligations on states to regulate the space activities of non-governmental bodies under their jurisdiction.

As an initial matter, it is certainly legal under international law for non-government bodies to engage in space travel. The USSR, during negotiations over the Outer Space Treaty (“OST”), had originally wanted to ban all private space flight, but the U.S. refused to agree to this. However, whether private individuals can obtain property rights in space is a separate, more difficult, question. Although appropriations of resources by states is prohibited, this prohibition was not explicitly extended to cover non-governmental corporations. Many commentators have made the case that private ownership in space is therefore allowed, and have explained how ownership can exist even outside of state jurisdiction by reference to civil systems [PDF]:

The relationship between property and sovereignty differs under common law and civil law systems. The common law theory of title has its roots in feudal law. Under this theory the Crown holds the ultimate title to all lands, and the proprietary rights of the subject are explained in terms of vassalage. Civil law, on the other hand, is derived from Roman law, which distinguishes between property and sovereignty. Under this theory, it is possible for property to exist in the absence of sovereignty.

So for now I’m going to assume that, yes, private property in space is possible, based on a discovery-and-exploitation regime that grants rights to those who first make use of a new territory. (This will be partially in following with the property-ownership aspects of the Larkin Decision, from the Federation Court, holding that “the real owners [of a celestial body] were the flesh-and-blood men who had maintained the occupation.” See Robert A. Heinlein, Stranger in a Strange Land (1961).)

Even if states are not strictly necessary for creation of private property interests in space, however, states clearly do have international legal obligations to regulate the conduct of private space faring parties. Article VI of the OST declares that (emphasis added),

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

Other issues are also addressed, such as liability in Article VII: “each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object.” The physical location of launching, not its governmental character, establishes liability. And, under Article IX, if a state knows that “an activity or experiment planned by it or its nationals … would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space … it shall undertake appropriate international consultations before proceeding with any such activity or experiment.” Of course, there is the scienter element — “reason to believe” it’s taking place — so if a state honestly doesn’t have clue what its citizens are up to, it’s not liable. I am sure in practice a state could manage to conveniently look the other way, so to speak, and avoid breaching its duty; however, in the case of an alien contact, the media hype it generated might remove any chance of plausible deniability.

Thus, states certainly have obligations to regulate and to some degree control private space travel under their jurisdiction. But, just as some states today serve as tax havens and host offshore accounts, and as other states are commonly chosen as “flags of convenience” for the registration of ships, inevitably some states will be found to serve as convenient space portals for private corporations involved in space exploiting enterprises.

So, for a hypothetical scenario, let’s say there’s a group of U.S. investors that have come together to form a company. They incorporate under Bhutan law, and then contract with the nation of Djibouti to launch asteroid mining ships from within Djibouti’s sovereign territory. (Note that neither Bhutan nor Djibouti are members of any space treaties.) This corporation — the Djibouti East India Company (“DEIC”) — then flies to and begins mining activities on the M-type asteroid 3554 Amun. One day, out of the blue, an alien ship that happens to be in the area sees the mining activities, and stops by the asteroid to say hello to the startled miners.

The question of which state possesses jurisdiction to regulate the alien encounter on 3554 Amun will be a thorny one. In some ways, Djibouti is the best bet, but the U.S. might very well choose to claim jurisdiction too, due to the fact the corporate owners and crew are U.S. citizens. As under 49 U.S.C. §70102(1)(a)-(c), the U.S. already purports to regulate the outer space activities of all U.S. citizens, even if all corporate or launch activity takes place in international or foreign territory.

For some legal issues, obtaining U.S. jurisdiction would actually be beneficial to the DEIC. One such benefit is that under U.S. law, if a private party were to make contact with an alien race, completely free trade could be conducted with the aliens, thus making such trade contacts very lucrative indeed. Per 49 U.S.C. §70117, “A launch vehicle, reentry vehicle, or payload that is launched or reentered is not, because of the launch or reentry, an export or import, respectively, for purposes of a law controlling exports or imports.” Assuming the aliens are enlightened beings who do not impose restrictions on trade on the basis of planetary origin of a good, tariff-free exchanges could occur.

Moreover, if the vessel is U.S. flagged or the personnel are subject to U.S. jurisdiction, U.S. patent protection could be obtained over the alien technology. So if a human corporation bought any of the alien technology, because perhaps the aliens had no plans to ever return to this star system and were therefore content to simply sell off their IP rights to an earth organization, the transaction would be covered by U.S. commercial and patent law. Under 35 U.S.C. §105,

“Any invention made, used, or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States[.]“

U.S. laws are not overly intrusive with regards to the alien encounter, either. The actual interactions between the DEIC and the aliens would not be subject to any alien-specific U.S. regulations, as, presently, U.S. domestic laws does not directly address human contact with aliens. Formerly, however, there was 14 CFR §1211, which established “NASA policy, responsibility and authority to guard the Earth against any harmful contamination or adverse changes in its environment resulting from personnel, spacecraft and other property returning to the Earth after landing on or coming within the atmospheric envelope of a celestial body.” Under these regulations, astronauts that encountered celestial bodies were quarantined upon their return, for fear of exposure to alien pathogens. If you visit the National Air & Space Museum in Dulles, you can see the ‘quarantine’ facilities developed to protect us all from deadly moon germs. (And yes, poor Neil Armstrong, Buzz Aldrin, and Michael Collins did have to endure quarantines upon their heroic return.)

The alien quarantine regulation was removed in 1991. So currently, there are no domestic laws or regulations governing contact with aliens, or at least no laws in addition to the ones that would govern contact with other humans.

I’m assuming that relations between the mining base and the aliens are generally friendly, but incidences of violence might still be possible. For example, what if one of the aliens and one of the American miners had a drunken bar brawl? Say that a drunken bar misunderstanding occurs between a human and alien, thus leading to the human’s arm getting sliced off, Cantina-style. If the bar brawl happened to take place on-board an alien spacebar, the U.S. (or Djibouti) wouldn’t get jurisdiction over the alien for assaulting the miner, as established in the S.S. Lotus case. However, if the alien stepped onto a U.S. flagged vessel, so that enforcement jurisdiction was permissible, he might then be subject to prosecution.

What if it was the alien that lost an arm? Because the DEIC miner is part of a private organization, the alien can of course attempt to bring suit in any U.S. court where it can obtain jurisdiction over a party responsible for the injury. Note that if instead the human involved had not been part of a private group, but had rather been there as a U.S. government contractor, the claim would almost certainly have been barred under the Federal Tort Claims Act. (See Smith v. United States, 507 U.S. 197 (1993), holding that the FTCA’s non-waiver of immunity over “[a]ny claim arising in a foreign country” extends to Antarctica, which is not a foreign country. Space would almost certainly be treated in a similar fashion.)

However, even if the U.S. continues to have jurisdiction over its citizens that are crewing for the DEIC, it is unlikely it would be international liable over the human-alien space brawl tort. If the alien wants to hold someone responsible under international law, it will likely be limited to Djibouti national law, or barring that, to diplomatic claims against Djibouti. Under the Liability Convention, a state is liable for any harm caused by a space object that launched from its territory. So again, if the Liability Convention is CIL, then Djibouti is going to be on the hook to the alien civilization for the damages caused by private DEIC personnel to private alien personnel.

Luckily for the alien, the Liability Convention, under Article XI, does not require exhaustion of remedies. So the alien could choose to seek compensation directly from Djibouti without first having to exhaust all its claims through Alien Space Court first.

But what would be the response of the nations back home on earth to the news that the DEIC had met some aliens out on a space rock? What could they do? It is very likely that Djibouti and possibly Bhutan would have a duty under customary international law, to regulate the DEIC in accordance with the law embodied in the OST, and other nations could attempt to enforce them to carry out this duty. However, corporate bodies are not themselves directly governed by international law, and the only recourse other states would have would be to try to force Djibouti/Bhutan to create legislation that would force the DEIC to comply with Djibouti/Bhutan’s own international obligations.

Of course, in real life, other nations would be more likely to simply try to fly out to 3554 Amun and meet the aliens themselves. But, if DEIC claimed ownership (or at least occupational) rights in its mining asteroid, and refused entry to other nations (perhaps backing this refusal with some purely-defensive security weapons), the other nations could not use military force to muscle their way in, as under Article IV of the OST, “the conduct of military manoeuvres on celestial bodies” is prohibited.

In conclusion, the basic result would be that a private corporation that entered space from a weak nation that served as an outer space launch-haven could establish an international no-mans land, where the corporation could meet with alien beings without interference from an Earth government. Various Earth nations might provide the source of private law that could be used to regulate human-alien encounters and commercial transactions, but international law itself could not directly force its way into a privately owned space-base. In our example, the world community could try to influence Djibouti to regulate the DEIC by arguing the OST imposes duties upon it even though it is a non-party, but if Djibouti did not or could not comply, other nations would not be able to (legally) unilaterally invade the DEIC space-base. In many respects, this would be much like the status of Somalian pirates while in Somalian territory.

Because in the DEIC hypo the corporate owners and mining crew were deemed to be American, under the principle of personality jurisdiction, the U.S. could probably create laws regulating at least the corporate activities and the crew. It would not, however, have any territorial-based sovereignty over the encounter, and could not itself claim any jurisdiction over the aliens.

This represents a giant gaping hole in international law, but it would be difficult to remedy even by treaty. Because the ability of a state to enforce laws under international law has always been linked to a claim of territorial sovereignty, private corporations are not able to entirely escape regulation by international law while on earth. In space, however, where no state has territorial sovereignty, private corporations would be free to interact with aliens however they wished. They could voluntarily avail themselves to Earth law where it suited their purposes (such as in obtaining a patent over alien tech), but there would be little ability of a government to impose its will.

The UN has itself recognized this power gap. From A/42/427, Our Common Future: Report of the World Commission on Environment and Development:

Orbital space cannot be effectively managed by any one country acting alone. The inherently international character of orbital space has been recognized by a majority of nations in the Outer Space Treaty. The international community should seek to design and implement a space regime to ensure that space remains a peaceful environment for the benefit of all.

Essentially, this means we’d need to make the UNOSPF: the United Nations Outer Space Police Force. By creating a UN entity with police power jurisdiction over all (human) non-government entities in space, we could avoid the grave danger of Djibouti-based mercenaries running rampant in space, viciously assaulting whatever innocent peaceful aliens they find.

Previously: The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations
Next:The Law of Aliens, Part III.1 and Part III.2 — The Law of First Contact on Earth.

-Susan

To begin with, I should probably instead use the word “extraterrestrial” rather than “alien,” as alien is already a well established legal term of art. So this is not the law of foreigners in a state’s territory, but rather the law of contact with intelligent non-human entities that did not originate from earth.

What if First Contact happened tomorrow? How would humans react, and how would the law apply? Assuming the aliens didn’t immediately blast us out of existence, that is. I think it’s safe to say each state would want to have its own say in how things with the aliens go down, and that states would have their own individual opinions and conflicting agendas regarding the encounter. Which means, inevitably, they would each take whatever actions they deemed appropriate and then afterwords seek to justify those actions on the basis of contorted interpretations of international law. The United Nations would also want to establish a central role for itself in the fray, and because it does possess the institutional mechanisms that states tend to follow when seeking to take multinational action, the UN would likely emerge as the primary vehicle through which multilateral discussions and actions would take place.

So international law would be the natural language for states to use when framing these discussions. In this first post, I am going to examine how international law in its current form would govern an encounter in outer space between extraterrestrials and a national or international body. The next two posts will consider outer space encounters between aliens and private parties, and encounters with aliens on earth.

Space law, although relatively new and still developing, is an established body of law governing human activities beyond the atmosphere. Although the current body of space law lacks any provisions directly regulating potential alien contacts, the laws contained within the various space treaties would by their language pertain to such an encounter.

The most relevant document is the 1967 Outer Space Treat (“OST”). Other international space agreements are less important, as they either concern situations that would inevitably be of solely human concern, or else are only signed by nations that do not possess the ability to enter space and are therefore irrelevant. Also, the OST is like to be enforce whenever a state encounters aliens in space, as under Article XVI, withdrawal from the treaty will not be effective for one year. Thus, assuming we don’t get much advanced warning that our alien neighbors are dropping by, any spacefaring nation that has contact with an alien will not have had time to drop out of it. Moreover, at this point in time, OST may well embody customary international law, and thus be binding on all nations regardless of their ratification status.

Some basic legal stipulations conferred by the OST are that the space activities conducted by parties to the OST are governed by international law (Article III), and that nothing beyond the earth’s atmosphere is subject to “national appropriation by claim of sovereignty.” (Article II). So at the outset, we do know international law is in fact the governing body of law regarding alien-state relations, and that states are prohibited from immediately enslaving any alien races they encounter.

Let’s establish a hypothetical scenario: Canada has set up a manned space station in orbit around the moon. Aliens have arrived, and for reasons beyond human ken, have chosen to make first contact with the Canadian ship. The alien envoys thereafter board the Canadian vessel to enter into negotiations with Canadian diplomats that have been sent up to join them.

As an initial matter, Canada would be required to inform the rest of the world of the alien contact, and would be in breach of its treaty obligations if it attempted to keep the contact secret. Under Article XI of the OST, Canada has an obligation “to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of [outer space] activities.” Therefore, not only must all other nations be made aware of the aliens, no secret Men In Black type arrangements can legally take place either; the discovery of an extraterrestrial intelligence must be announced to the world. Even if all the states wanted to make it a government secret, the scientific community also has a right to be informed.

Secondly, Canada would be required to allow other nations to have access to the Canadian space vessel that the aliens are on board– although Canada can get away with not granting that access immediately. Under international law, if the aliens should choose to board the space station of a single nation or a station collectively owned by a subset of nations, the owning nation(s) will not be allowed to exclude other countries from the Interstellar Negotiations. This is because Article XII provides that, “All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other State Parties to the Treaty on the basis of reciprocity.” However, any country wishing to visit “shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.” This language give lots of room for stalling — consultations, plus ‘maximum’ precautions,’ plus ‘avoiding interferences with operations’ means that Canada could easily delay such visits for a lengthy time indeed. But, eventually, other countries must be allowed to visit with the aliens.

What if other nations fear that Canada is doing a horrible job at negotiations with the aliens, and worry that Canada’s bungling of it will drive the aliens into declaring a space jihad on Earth? Under Article IX,

A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.

So essentially, if, say, Barbados, gets worried that Canada’s dealings with extraterrestrials might cause “potentially harmful interference with activities in the peaceful exploration and use of outer space” (potentially starting an intergalactic war with a race of super advanced aliens would probably qualify), Barbados can take the proactive step of… requesting a consultation.

Of course, if this didn’t work, Barbados could always bring a case against Canada before the ICJ, arguing that Canada is violating its obligation “to conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.”

But that would take at least a few years, and by then we’d all probably be slaves to the Alien Overlord. So under Article XIII, any “practical question arising in connection with the exploration of outer space” is to be decided by members to the OST among each other or with the appropriate international organization. To answer a practical legal question like “Does Canada have to let other nations talk to the aliens?”, we could consult with COPUOS. The Committee on the Peaceful Uses of Outer Space was established by G.A. Resolution 1472 (XIV), and gives COPUOS authority “to study the nature of legal problems which may arise from the exploration of outer space[.]” So it looks like UNCOPUOS is going to be our new law firm for all legal disputes concerning aliens.

Now, assume the aliens are well-meaning, but clumsy, and while all the debates over international law are going on, the aliens accidentally explode the Canadian space station. What recourses does Canada have?

If a visiting alien’s spacecraft accidentally injured an Earth vessel, or other earth-owned property, the injured owner may be able to bring suit against the alien by means of a Claim Commission on earth. Canada should consider using this remedy. Assuming the injury took place in our solar system, I believe a strong argument could be made that the damage should be governed by earth law, as torts are generally governed by the law of the location where they took place. Under lex loci delicti, for an injury in space the applicable law would be the Convention on Liability For Damage Caused by Space Objects. The Liability Convention mandates,

“In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.”

So assuming it was the aliens and not the Canadians that were negligent, this might provide the basis of a claim. Although an alien would presumably not be a member of the treaty, if the Liability Convention represents an embodiment of customary international law, it can be argued that, as CIL, it is applicable to a state even absent its consent. Just as CIL is applicable to newly formed nations whose existence postdates the establishment of a CIL norm, if an alien empire were to enter Earth jurisdiction, it too would be bound by CIL, despite the fact it never signed it. Therefore, the alien would have to compensate Canada for the loss of its space station. (If I were the type to make bad jokes, I would now make a reference to the possibility of the Liability Convention being the new ‘alien tort statute.’)

Finally, it may be premature to be concerned about Canada falsely attempting to claim a role as Earth’s mouthpiece. Presumably, any alien civilization capable of traveling between stars would have a sophisticated legal system, and would thus realize that Canada is not the proper Earth channel which planetary diplomacy should occur through. In which case, our alien visitors might consider all nations’ astronauts, not any single state government, to be the appropriate envoys for Earth. Under Article IV of OST, astronauts have been declared by the earth nations to be the “envoys of mankind” — which theoretically means they trump any individual nation in their right to be at the negotiation table with visiting alien dignitaries. So astronauts, cosmonauts, and taikonauts might be Earth’s Diplomats for purposes of interstellar or intergalactic law.

Next up: Part II — The Law of Outer Space Encounters With Extraterrestrials by Sub-State Entities, and Parts III.1 and III.2– The Law of First Contact on Earth.

-Susan