The chairman of space history at the National Air and Space Museum has said that “[t]he idea that a private investor can put together the funds to develop rockets capable of a lunar mission is extremely speculative, verging on fantasy.” And so far, he’s been right.

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