Editor’s Note: Yesterday, I said I’d write about the hypothetical example of aliens landing in Somalia. I was thinking I’d talk about the extremes — the differences in how international law would treat aliens in a failed state vs. aliens in the territory of a permanent member of the Security Council. But I’ve changed my mind; using Somalia makes the question too easy, as the lack of government there makes it exceedingly unlikely that other states would bother to respect Somalia’s territorial integrity in the event of an alien invasion. Instead, I’m going to borrow from District 9 and use South Africa as a hypothetical.

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