In keeping with LL2’s long standing tradition of providing you with the hardest hitting and most practical legal exposés, this blog will now present an informative series on the law of alien contact.

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