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IEET > Rights > FreeThought > Life > Access > Vision > Futurism > Technoprogressivism > Contributors > John Niman

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The Mailbag: First Contact

John Niman
By John Niman

Posted: Dec 30, 2012

I get to do something exciting today and answer a couple of questions that a reader sent me. I’d like to do this more in the future, so if you have a topic you’d like me to discuss, please let me know!

The first question asks how property law deals with unclaimed land, and in particular space. Two caveats before I get to that. First, I did OK in property but it was hardly my best subject and I don’t have any particular interest in it, so while I trust my sources I’m far from an expert. Second, as at all other times on boydfuturist, nothing I say here is to be construed as legal advice. So, if you’re planning on claiming an asteroid or something, consult a lawyer.

The fancy Latin term for unclaimed land is terra nullius. There are a few such places still here on Earth – Antarctica, parts of the international sea, and an area between Egypt and Sudan known as Bir Tawil. Essentially all of space remains unclaimed. Traditionally, land that is terra nullius may be claimed by occupation.


In 1967, several countries signed the Outer Space Treaty (or, more formally, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967 U.S.T. Lexis 613, TIAS 6347.) This treaty bans countries from claiming celestial bodies for themselves. Specifically, Article II states: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” As of 2011, 101 countries have signed and ratified this treaty, including every major country.

This leaves few legal possibilities for countries to claim celestial bodies. One of the countries that has not signed this treaty could theoretically claim such land, but none of them are currently in a position to attempt spaceflight. More likely, countries that have signed and ratified this treaty might choose to ignore it. This is a problem generally in international law, and stems in part from the inability of the United Nations to enforce their own laws. If a major signatory of this treaty, like the United States or China, decided to start claiming the moon or asteroids there is precious little that the U.N. could do about it.

Perhaps more likely, the treaty might also be repealed as spaceflight becomes more capable. The U.N. (or a body acting similarly in the future) might decide that the solar system is not claimable, and perhaps other habitable planets are not claimable by a particular country, but asteroids and other planets, being so abundant, might well claimable through occupation, adverse possession, use, or some other traditional mechanism. After all, if there are hundreds or thousands of asteroids, does it really matter if some percentage of them are claimed? Mightn’t the ability to claim celestial bodies drive space exploration and mining?

Another possibility is that by the time claiming celestial bodies becomes practical the countries of the Earth will meld into a single government. Presumably a single body claiming a celestial body for all of Earth comports with the intent and words of the treaty. Of course, many other changes would come with such a unification so any commentary about the effects of a single government on a multi-country treaty is speculative at best.

The second question asks about a hypothetical first contact. Who should extraterrestrials speak to? Alternately, if Earthlings were space bound and found a pre-spaceflight civilization, who should talk to them?

Not this guy!

Not this guy!

To my knowledge, no specific first-contact plan exists. If the contact were to occur in outer space, then Article V of the treaty might guide the interaction. According to Article V, astronauts are considered envoys of mankind, and so presumably have the authority to at least arrange a meeting. The astronauts are directed to report to the Secretary General of the United Nations or any other state party to the treaty of “any phenomena they discover in outer space, including the moon and other celestial bodies, which could constitute a danger to the life or health of astronauts.” Presumably this could include aliens.

If aliens arrive on Earth, then first contact is likely to be determined by the aliens themselves. Presumably, whatever human happens to be around will become the first spoken to. However, ideally shortly after that some high ranking official (President, King, Secretary General, etc.) will initiate contact and purport to speak at least for their own country or organization.


If contact comes from a signal, at least one draft argues for a defined set of protocol.  The Declaration of Principles for Activities Following the Detection of Extraterrestrial Intelligence has been indorsed by various international agencies, and operates are a guideline. ( To my knowledge, this is not been formalized into an actual treaty. Presumably an outpost that discovers an extraterrestrial signal will forward news of that contact to various superiors or peers to check for authenticity, and then calls will be made to those same high ranking officials.

The Committee on Space Research (COSPAR) has issued the leading guidelines intended to prevent contamination of other life forms by Earthlings. COSPAR tailors its specific recommendations to the types of missions being undertaken. The list is as follows:

  • Category I: Any mission to the SunMercury, other locations not of interest for studying prebiotic chemistry or the origin and evolution of life.
  • Category II: Any mission to the Earth’s MoonVenuscometsJupiterPluto/CharonKuiper Belt Objects, other locations of interest for studying prebiotic chemistry and the origin of life but for which there is an insignificant probability of contamination with Earth life.
  • Category III: Flyby and orbiter missions to locations with the potential to host life and for which there is a possibility of contamination by Earth life; e.g., MarsEuropaTitan or Enceladus.
  • Category IV: Lander or probe missions to locations with the potential to host life and for which there is a possibility of contamination by Earth life; e.g., MarsEuropaTitan or Enceladus.
  • Category V: Any earth return mission. Missions returning samples from locations with the potential to support life are considered ‘Restricted Earth Return’ and returned samples must be contained at levels more stringent than Biosafety level 4. Samples from locations judged unlikely to support life are considered ‘Unrestricted Earth Return’ and merit no constraints for planetary protection purposes. 

Presumably, the sort of mission that would find a pre-spaceflight organization would fall into a Category III or IV classification. The specifics of these requirements are not readily available, but include at least documentation and some suggested protocol. ( Further, this Planetary Protection policy is focused on accidental contamination, not with initiating intentional contact.

For my part, I think that if intentional contact is to be made with a pre-spaceflight civilization at all (and the Star Trek Prime Directive, allowing for natural progression into spaceflight capability might be wisest) then it ought to be made by the Secretary General of the United Nations as an ambassador of all of Earth (or an ambassador assigned by the Secretary General) or whatever the equivalent title is if the political landscape undergoes substantial changes by then.


John Niman is an Affiliate Scholar, a J.D. Candidate at the William S. Boyd School of Law at the University of Nevada, Las Vegas. His primary legal interests include bioethics and personhood. He blogs about emerging technology and transhumanism at
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Thanks, John.

A small follow-up here. There’s a handful of Mars colonisation projects going on. One of them is that of Elon Musk, another one is the Dutch venture Mars One, which is starting to recruit the potential settlers soon. There’s been a talk about PETA asking Must to enforce no meat policy in the new settlement.

But the question is, again, whose laws will be active in space? If going there is a one-way ticket and the environment is going to be high-stress, some kind of legal framework will be required even for a small settlement.

Do you envision the colony gaining independence on arrival because, put bluntly, no one wants that place? Or will it be run by the bylaws of SpaceX / Mars One?

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