The Law of Aliens, Part III.1: Extraterrestrials on the High Seas

Editor’s Note: Yeah, I know I said this was going to be a three part series, but then I got slowed up this week. So the series will still be three parts, it’s just that part III is going to be done in two installments.

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.


The Law of Aliens, Part II: The Law of Post-Atmospheric Extraterrestrial Encounters By Non-State Entities

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).)

Read the rest of this entry: The case of Asteroid Miners v. Aliens »

The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations

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.

Read the rest of this entry: What if aliens land on a Canadian space ship? »

Saturday Evening Rap Break: Pimp My Satellite

Yo Russia it’s me, your arch-nemesis,
We the G’s over seas with Micky-D’s stains on our T’s,
with luxuries like you wouldn’t believe,
we’ve got more ringtones on our iPhones than China’s got Chinese,
We’re America biyatch, the land of the free
We gave you Michael Bolton and Jurassic Park 3
Our soccer teams suck and our beers taste like pee pee
but our rhymes are so phat they get type II diabetes

But enough about us, how come you ain’t been callin me?
I guess you’re trying to stabilize your volatile economy,
preoccupied nationwide with new domestic policies,
psych, ya right, I know you tryin to follow me
You’ve been
Disgraced in the space race, trying to save face after comin in second place,
Just enough to taste victory, chase history, ace Kennedy, but ya lost pace with your enemy,
and now you’re layin low, plottin’ for as long as we’ve known ya,
You hold you’re head up like Neil Armstrong didn’t pwn ya,
that secret space ride that you’re tryin to hide isn’t something I would publicize with any pride, I’ll tell ya why…


“Readers who find Figure II puzzling should recall that a diagram of an imaginary axis must, of course, itself be imaginary.”

I spent a fair chunk of yesterday sitting out on the patio reading Elizabeth Moon’s Trading in Danger. It should surprise no one that I absolutely adored it. A scifi adventure novel premised upon the profit to be gained from interstellar trade, you say? Why yes that does in fact sound like something I’d quite enjoy reading. (And, like many of Moon’s books, it features a strong female protagonist in a universe where gender is irrelevant to your qualifications for any job. I think I’m in love!)

The bad news about the future is that there are still tariffs. Looks like we’re going to develop an FTL drive before we actually achieve free trade. (Sadly, I would consider this to be a rather realistic proposition.) But the book manages to create one of the few scifi universes I’ve encountered where the idea of backwater worlds still using horse-and-plows for agriculture actually made sense. In Serenity, I was never quite able to accept the whole Wild Wild West theme– it was based on planetary cultures deliberately choosing to embrace a cowboy lifestyle rather than the cowboy lifestyle making sense given the resources available. But Trading in Danger depicts an economic and political system for the galaxy where encountering a mix of archaic farming techniques and space-age technology makes perfect sense.

In addition to that, other notable features of the book include: 1) A galactic corporation with a monopoly on the instantaneous communication market — and its relentless rent-seeking behaviors in order to maintain that monopoly serve as the backdrop for the events of the series; 2) A constant evaluation of opportunity costs, struggles of where to allocate cash on hand and when to take on a loan given the prevailing interest rates, and arguments over how credit ratings apply to sub-entities of corporate structures. The characters are traders, after all, and thus their internal struggles over where the best trading opportunities are to be found are prominently featured; and, 3) Constant wrangling over contract law, such as how breach and damages are to be determined when a system civil war breaks, or what indemnity clauses are to be included in the final text of an agreement.

And last, but not least, there is ample quoting from the IUCC. That’s right — the Interstellar Uniform Commercial Code. It made me so nostalgic for Martha Ertman’s Contracts course; I can totally imagine Prof. Ertman chilling out on a starship somewhere waxing rhapsodic about the default contract terms provided for under IUCC Art. 347.2.

So of course the whole time I was reading the book I had Krugman’s essay “A Theory of Interstellar Trade” in mind. (It’s worth reading simply for its groan-inducing jokes and references to science fiction, physics, and academia. Such as setting up his graphs so that his line is named ET.)

“If trading space vessels move at high velocities, we can no longer have an unambiguous measure of the time taken in transit. The time taken by the spacecraft to make a round trip will appear less to an observer on the craft than to one remaining on Earth. Since an interstellar voyage is an investment project which must have a positive present value, there is obviously a problem in deciding which transit time to use in the present value calculation.”

The essay’s not directly applicable to Elizabeth Moon’s universe, as Krugman assumes (slightly more realistically) that FTL travel is not possible, and thus deals with the relativistic effects that approaching-light-speed travel causes. With time distortion + lack of instantaneous communication, can interstellar arbitrage result in equalized interplanetary interest rates? Yes, actually — well, assuming we can stay within the bounds of special relativity. Krugman makes no representations as to how his theory might apply to non-inertial reference frames.

Although Krugman rejects FTL and instantaneous communication, he does assume that even if our technology will not have discovered how to break the light speed barrier, our economic systems will have discovered the near-equivalent: perfect forecasts on the price of goods over indefinite periods of time. In Trading for Danger, nothing close to this exists — which is a good thing, as it’s that very uncertainty over prices that provides a fair share of the drama and obstacles faced by the characters. The traders must make months-long trips between star systems based upon speculation on where the most profitable transactions are to be had, and if you guess wrong, you’re down a whole lot of time and credits. (Yes, they do have FTL — but given acceleration and deceleration times, it’s no quick jaunt to go between stars.)

So I’m going to add a Third Fundamental Theorem of Interstellar Trade to Krugman’s article: for good science fiction, you need to screw around with the laws of physics as the plot demands, but hold your laws of economics constant. Imagining FTL is more fun than imagining perfect futures markets.


How Economics Can Be A Plot Point in Fantasy Novels

In King’s Shield — book three of the Inda Series and an entertaining but otherwise unremarkable sword-and-sorcery fantasy novel by Sherwood Smith — I was very pleased to see that the existence of economics was not merely recognized, but used to advance the plot. Too often in fantasy novels, money is assumed to conveniently exist. Kings can declare wars, and they absent mindedly cover the costs “out of the treasury.” And everything is paid for in ubiquitous gold coins. Need to stay at an inn? Here, have a gold coin. Need to raise an army? Here, have some more gold coins.

But in King’s Shield, the king goes broke fighting a war and is facing the possibility of his kingdom turning to anarchy if he can’t pay for anything. That alone earns the series some points — far too many books simply gloss over the fact that wars are, well, expensive. So the King’s busy fretting over his empty treasury, and in typical fantasy fashion, the main character — who has spent most his life as a pirate — announces he has a solution to the problem. To paraphrase, “Not to worry! There’s a big old treasure trove full of pirate gold out on an island I know of, let’s just go and fetch that.”

Then the king’s cousin informs him, “That won’t work.”
“Why not?” The pirate asks, dumbfounded.
“Because treasury isn’t treasure.”
“Treasury isn’t treasure?! What the heck is it then?”

The king’s cousin launches into an explanation of how finances work in the land. The pirate is appropriately baffled when he is informed that the “letters of credit” they often use are not actually referring to piles of gold, but are themselves used as money — there’s no gold standard in Iasca Leror. “So you’re telling me,” the pirate says, “we’re just trading letters all over the place? Just pieces of paper with writing on them?” Welcome to fiat currency, Lord Inda.

In fact, the character’s dialogue sort of suggests that in this world, the monetary system operates under Chartalism. The king accepts payment of taxes from each nobleman in the form of established rates of men, horses, supplies, etc., and these taxes of soldiers and supplies can also be measured and paid in ‘kind’ — fantasy-speak for trade between two different goods of equal value.

And in Iasca Leror — where King’s Shield takes place — it turns out that a pirate’s treasure trove has very little value in kind. Because of the years of wars that they’ve been through, interkingdom trade has grinded to a halt. And gold and jewels are useless to Iasca Leror– you can’t eat them, live in them, or ride them, after all.

And thus economics becomes a plot point in high fantasy. As a result of the conversation, the king’s cousin jaunts off on his next adventure — a quest to re-establish interkingdom trade in the world, so that they might export their gold and jewels and turn them into new ships and letters of credit.

Maybe he’ll accomplish this by gathering all the other kingdoms’ representatives together in a place called the Brettonska Woodlands.


The Economic Agendas of Sci-Fi and Fantasy Authors, Vol. 2 — Terry Goodkind

conanlibertarianTerry Goodkind

I realized that there is one author, at least, who I am totally competent to critique even without the benefits of having his books before me: Terry Goodkind. That’s because you don’t actually need to read The Sword of Truth series to understand what they’re about, you can just go type “libertarian porn” into google and you will probably get the same experience.

Okay, they’re not quite that bad. After all, I did read all of them, and at ~800 pages a pop times 11 novels, that’s 8,800 pages I bothered to get through. Admittedly, that was over the course of 12 years, beginning in seventh grade when I first picked them up because I got bored waiting for Robert Jordan to crank out his next book, and finally ending this past summer when I was studying for the bar, and therefore procrastinating with a Terry Goodkind novel was marginally less frustrating than the BarBri books I was actually supposed to be reading.

But in between the decent chunks of sword-and-sorcery fantasy in The Sword of Truth, Terry Goodkind seizes every possible opportunity to turn his characters into hoarse mouthpieces for the Libertarian War Against Communism. It’s kind of funny, the first dozen times it happens. And then it starts getting annoying, when you find yourself wondering if the speeches were simply copied and pasted from a speech that same character gave two books ago. And then finally by about book 6 or so, every time you see a character launch into a major speech, you just skip ahead six or seven pages until you find where the quote marks stop and everyone goes back to stabbing bad guys.

A rough synopsis of the series [SPOILER ALERT] is that Hank Roark Richard Cypher, a simple woods guide, is actually the leader of the D’Haran Empire, and the beautiful Dagn- Domini- Kahlan has been sent to fetch him. After securing his title as Supreme Commander of the Old World, he then must fight the rampaging horde of liberal democrats in the New World that wish to destroy individualism and promote the idea of from each according to his ability, to each according to his need.

Anyway, they all live in a world where it is possible to conquer the forces of evil simply by demonstrating to them your noble, liberty-loving spirit and your adamant refusal to live your life for another.

Read More: In Libertarian Land, you can always tell which women love freedom the most. It’s the hot ones »