| How would international law treat the hypothetical | | | | appropriate consultations may be held and that |
| case of a national space shuttle mission | | | | maximum precautions may be taken to assure |
| encountering an alien race? To begin with, I should | | | | safety and to avoid interference with normal |
| probably instead use the word "extraterrestrial" | | | | operations in the facility to be visited." This |
| rather than "alien," as alien is already a well | | | | language give lots of room for stalling -- |
| established legal term of art. So this is not the law | | | | consultations, plus 'maximum' precautions,' plus |
| of foreigners in a state's territory, but rather the | | | | 'avoiding interferences with operations' means that |
| law of contact with intelligent non-human entities | | | | Canada could easily delay such visits for a lengthy |
| that did not originate from earth. | | | | time indeed. But, eventually, other countries must |
| What if First Contact happened tomorrow? How | | | | be allowed to visit with the aliens. |
| would humans react, and how would the law | | | | What if other nations fear that Canada is doing a |
| apply? Assuming the aliens didn't immediately blast | | | | horrible job at negotiations with the aliens, and |
| us out of existence, that is. I think it's safe to say | | | | worry that Canada's bungling of it will drive the |
| each state would want to have its own say in | | | | aliens into declaring a space jihad on Earth? Under |
| how things with the aliens go down, and that | | | | Article IX, |
| states would have their own individual opinions and | | | | A State Party to the Treaty which has reason to |
| conflicting agendas regarding the encounter. Which | | | | believe that an activity or experiment planned by |
| means, inevitably, they would each take whatever | | | | another State Party in outer space, including the |
| actions they deemed appropriate and then | | | | moon and other celestial bodies, would cause |
| afterwords seek to justify those actions on the | | | | potentially harmful interference with activities in |
| basis of contorted interpretations of international | | | | the peaceful exploration and use of outer space, |
| law. The United Nations would also want to | | | | including the moon and other celestial bodies, may |
| establish a central role for itself in the fray, and | | | | request consultation concerning the activity or |
| because it does possess the institutional | | | | experiment. |
| mechanisms that states tend to follow when | | | | So essentially, if, say, Barbados, gets worried that |
| seeking to take multinational action, the UN would | | | | Canada's dealings with extraterrestrials might |
| likely emerge as the primary vehicle through | | | | cause "potentially harmful interference with |
| which multilateral discussions and actions would | | | | activities in the peaceful exploration and use of |
| take place. | | | | outer space" (potentially starting an intergalactic |
| So international law would be the natural language | | | | war with a race of super advanced aliens would |
| for states to use when framing these discussions. | | | | probably qualify), Barbados can take the proactive |
| In this first installment, I am going to examine | | | | step of... requesting a consultation. |
| how international law in its current form would | | | | Of course, if this didn't work, Barbados could |
| govern an encounter in outer space between | | | | always bring a case against Canada before the |
| extraterrestrials and a national or international | | | | ICJ, arguing that Canada is violating its obligation |
| body. Later articles will consider outer space | | | | "to conduct all their activities in outer space, |
| encounters between aliens and private parties, | | | | including the moon and other celestial bodies, with |
| and encounters with aliens on earth. | | | | due regard to the corresponding interests of all |
| Space law, although relatively new and still | | | | other States Parties to the Treaty." |
| developing, is an established body of law | | | | But that would take at least a few years, and by |
| governing human activities beyond the | | | | then we'd all probably be slaves to the Alien |
| atmosphere. Although the current body of space | | | | Overlord. So under Article XIII, any "practical |
| law lacks any provisions directly regulating | | | | question arising in connection with the exploration |
| potential alien contacts, the laws contained within | | | | of outer space" is to be decided by members to |
| the various space treaties would by their language | | | | the OST among each other or with the |
| pertain to such an encounter. | | | | appropriate international organization. To answer a |
| The most relevant document is the 1967 Outer | | | | practical legal question like "Does Canada have to |
| Space Treaty ("OST"). Other international space | | | | let other nations talk to the aliens?", we could |
| agreements are less important, as they either | | | | consult with COPUOS. The Committee on the |
| concern situations that would inevitably be of | | | | Peaceful Uses of Outer Space was established by |
| solely human concern, or else are only signed by | | | | G.A. Resolution 1472 (XIV), and gives COPUOS |
| nations that do not possess the ability to enter | | | | authority "to study the nature of legal problems |
| space and are therefore irrelevant. Also, the OST | | | | which may arise from the exploration of outer |
| is like to be enforce whenever a state encounters | | | | space[.]" So it looks like UNCOPUOS is going to be |
| aliens in space, as under Article XVI, withdrawal | | | | our new law firm for all legal disputes concerning |
| from the treaty will not be effective for one | | | | aliens. |
| year. Thus, assuming we don't get much | | | | Now, assume the aliens are well-meaning, but |
| advanced warning that our alien neighbors are | | | | clumsy, and while all the debates over international |
| dropping by, any spacefaring nation that has | | | | law are going on, the aliens accidentally explode |
| contact with an alien will not have had time to | | | | the Canadian space station. What recourses does |
| drop out of it. Moreover, at this point in time, | | | | Canada have? |
| OST may well embody customary international | | | | If a visiting alien's spacecraft accidentally injured |
| law, and thus be binding on all nations regardless | | | | an Earth vessel, or other earth-owned property, |
| of their ratification status. | | | | the injured owner may be able to bring suit |
| Some basic legal stipulations conferred by the | | | | against the alien by means of a Claim Commission |
| OST are that the space activities conducted by | | | | on earth. Canada should consider using this |
| parties to the OST are governed by international | | | | remedy. Assuming the injury took place in our |
| law (Article III), and that nothing beyond the | | | | solar system, I believe a strong argument could |
| earth's atmosphere is subject to "national | | | | be made that the damage should be governed by |
| appropriation by claim of sovereignty." (Article II). | | | | earth law, as torts are generally governed by the |
| So at the outset, we do know international law is | | | | law of the location where they took place. Under |
| in fact the governing body of law regarding | | | | lex loci delicti, for an injury in space the applicable |
| alien-state relations, and that states are prohibited | | | | law would be the Convention on Liability For |
| from immediately enslaving any alien races they | | | | Damage Caused by Space Objects. The Liability |
| encounter. | | | | Convention mandates, |
| Let's establish a hypothetical scenario: Canada has | | | | "In the event of damage being caused elsewhere |
| set up a manned space station in orbit around the | | | | than on the surface of the Earth to a space |
| moon. Aliens have arrived, and for reasons | | | | object of one launching State or to persons or |
| beyond human ken, have chosen to make first | | | | property on board such a space object by a |
| contact with the Canadian ship. The alien envoys | | | | space object of another launching State, the latter |
| thereafter board the Canadian vessel to enter | | | | shall be liable only if the damage is due to its fault |
| into negotiations with Canadian diplomats that | | | | or the fault of persons for whom it is responsible." |
| have been sent up to join them. | | | | So assuming it was the aliens and not the |
| As an initial matter, Canada would be required to | | | | Canadians that were negligent, this might provide |
| inform the rest of the world of the alien contact, | | | | the basis of a claim. Although an alien would |
| and would be in breach of its treaty obligations if | | | | presumably not be a member of the treaty, if |
| it attempted to keep the contact secret. Under | | | | the Liability Convention represents an embodiment |
| Article XI of the OST, Canada has an obligation | | | | of customary international law, it can be argued |
| "to inform the Secretary-General of the United | | | | that, as CIL, it is applicable to a state even absent |
| Nations as well as the public and the international | | | | its consent. Just as CIL is applicable to newly |
| scientific community, to the greatest extent | | | | formed nations whose existence postdates the |
| feasible and practicable, of the nature, conduct, | | | | establishment of a CIL norm, if an alien empire |
| locations and results of [outer space] activities." | | | | were to enter Earth jurisdiction, it too would be |
| Therefore, not only must all other nations be | | | | bound by CIL, despite the fact it never signed it. |
| made aware of the aliens, no secret Men In Black | | | | Therefore, the alien would have to compensate |
| type arrangements can legally take place either; | | | | Canada for the loss of its space station. (If I |
| the discovery of an extraterrestrial intelligence | | | | were the type to make bad jokes, I would now |
| must be announced to the world. Even if all the | | | | make a reference to the possibility of the Liability |
| states wanted to make it a government secret, | | | | Convention being the new 'alien tort statute.') |
| the scientific community also has a right to be | | | | Finally, it may be premature to be concerned |
| informed. | | | | about Canada falsely attempting to claim a role as |
| Secondly, Canada would be required to allow | | | | Earth's mouthpiece. Presumably, any alien |
| other nations to have access to the Canadian | | | | civilization capable of traveling between stars |
| space vessel that the aliens are on board -- | | | | would have a sophisticated legal system, and |
| although Canada can get away with not granting | | | | would thus realize that Canada is not the proper |
| that access immediately. Under international law, if | | | | Earth channel which planetary diplomacy should |
| the aliens should choose to board the space | | | | occur through. In which case, our alien visitors |
| station of a single nation or a station collectively | | | | might consider all nations' astronauts, not any |
| owned by a subset of nations, the owning | | | | single state government, to be the appropriate |
| nation(s) will not be allowed to exclude other | | | | envoys for Earth. Under Article IV of OST, |
| countries from the Interstellar Negotiations. This is | | | | astronauts have been declared by the earth |
| because Article XII provides that, "All stations, | | | | nations to be the "envoys of mankind" -- which |
| installations, equipment and space vehicles on the | | | | theoretically means they trump any individual |
| moon and other celestial bodies shall be open to | | | | nation in their right to be at the negotiation table |
| representatives of other State Parties to the | | | | with visiting alien dignitaries. So astronauts, |
| Treaty on the basis of reciprocity." However, any | | | | cosmonauts, and taikonauts might be Earth's |
| country wishing to visit "shall give reasonable | | | | diplomats for purposes of interstellar or |
| advance notice of a projected visit, in order that | | | | intergalactic law. |