The Law of Aliens, Part III.2: Aliens in South Africa and Aliens in France

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.

Read the rest of this entry: When hosting aliens is a violation of international law »

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? »