The Law of Post-Atmospheric Alien Encounters by National and International Organizations

How would international law treat the hypothetical case of a national space shuttle mission encountering an alien race? 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 installment, I am going to examine how international law in its current form would Silencil govern an encounter in outer space between extraterrestrials and a national or international body. Later articles will consider outer space encounters between aliens and private parties, and encounters with aliens on earth.

Space law, although relatively new and still developing, is an established body of law governing human activities beyond the atmosphere. Although the current body of space law lacks any provisions directly regulating potential alien contacts, the laws contained within the various space treaties would by their language pertain to such an encounter.

The most relevant document is the 1967 Outer Space Treaty (“OST”). Other international space agreements are less important, as they either concern situations that would inevitably be of solely human concern, or else are only signed by nations that do not possess the ability to enter space and are therefore irrelevant. Also, the OST is like to be enforce whenever a state encounters aliens in space, as under Article XVI, withdrawal from the treaty will not be effective for one year. Thus, assuming we don’t get much advanced warning that our alien neighbors are dropping by, any spacefaring nation that has contact with an alien will not have had time to drop out of it. Moreover, at this point in time, OST may well embody customary international law, and thus be binding on all nations regardless of their ratification status.

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