Alien to Law:

Premises & Promises of Extra/Terrestrial Legal Theory

Amar Bhatia

A thesis submitted in conformity with the requirements

for the degree of Master of Laws

Graduate Department of the Faculty of Law

University of Toronto

© Copyright by Amar Bhatia 2008

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Alien to Law: Premises & Promises of Extra/Terrestrial Legal Theory

Amar Bhatia, Masters of Law, 2008, Faculty of Law, University of Toronto

Abstract:

This thesis addresses speculative legal theory about extraterrestrial intelligent (ETI) life. I

introduce the relevant questions and themes through my own intuitions and by assessing two

criticisms of such theory (Chapter One). I next turn to a close-reading of two First World

attempts at ETI legal theory (Chapters Two & Three). After reviewing their efforts and uses

of colonial history and science/technology, I examine the relationship and potential

communities of law and science through the examples of the International Geophysical Year

and the Bogota Declaration (Chapter Four). Working through the deficits of ETI theory

against the backdrop of the Cold War, I also point to fragmentation in Third World

approaches. In order to overcome these deficits, I present alternative approaches suggested

by a Fourth World perspective and indigenous legal theories and traditions (Chapter Five).

This thesis concludes with a brief discussion on the pitfalls of this type of speculation.

11
Acknowledgments:

First, I would like to thank my supervisor, Professor Kerry Rittich, for agreeing to take on
this unusual project and for her great generosity with time, comments, suggestions, criticism,
encouragement, and mentorship. I would also like to thank Professor Jutta Brunnee (second
reader) for her time and kind comments and Professor David Dyzenhaus for, first, asking
difficult questions and then pointing me in the right direction. As well, I am grateful and
indebted to Professor Darlene Johnston, whose "Law & Colonialism" course and materials
inform much of my approach (and for sharing her forthcoming manuscript and allowing me
to attribute/cite from it). Similarly, even though I was not able to take his course, Professor
John Borrows graciously shared his forthcoming manuscript and allowed me the much-
needed opportunity to attribute/cite from it. Also, thanks to Professor Peer Zumbansen,
Stephen Doyle, George S. Robinson, Professor W. Michael Reisman, Professor Penney
Clarke, Professor Barbara Stark, Professor Laurelyn Whitt, the librarians at York University
(Scott & Law), the librarians at the University of Toronto (Bora, Gerstein, Robarts, & OISE),
the librarians at Ryerson University, and friends in and out of school for their helpful
comments, suggestions, conversations, conferences, books, manuscript-sharing, and direct
and indirect inspiration. I hope I have been respectful with all of these various gifts.

Of course, I would also like to thank my family. Papaji, Mamaji, and Ate Maya - you have
been constant sources of love, encouragement, patience, and support over the years and
during this very important one. I would dedicate this to you... but it's about aliens.

Finally, because she was observer and participant to the entire process (from idea to
uncertainty to desperation, hope, and then, thankfully, conclusion), and, because I'd never
written anything this long before and did not really understand other people's
acknowledgments until now, I am most grateful to my wife, Meghan, for asking why I was
only interested in intelligent life, reading this over (and over), and being so patient and kind
through the long nights with her own permanent resident alien.

in
 Contents

Abstract ii

Acknowledgments Hi

Introduction 1
Masters of Law

Chapter One 7
Masters of the Universe

Chapter Two 24
Metalaw

Chapter Three 50
Advanced Forms of Non-Earth Life

Chapter Four 91
Communities of Law & Science

Chapter Five 119

The Fourth World

Conclusion 137
Nature of Masters

Bibliography 143

IV
They say it came first from Africa, carried in the screams of the enslaved; that it was the death
bane of the Tainos, uttered just as one world perished and another began; that it was a demon
drawn into Creation through the nightmare door that was cracked open in the Antilles. Fuku
americanus, or more colloquially, fuku - generally a curse or a doom of some kind;
specifically the Curse and the Doom of the New World. Also called the fuku of the Admiral
because the admiral was both its midwife and one of its great European victims; despite
'discovering' the New World the Admiral died miserable and syphilitic, hearing (dique)
divine voices. In Santo Domingo, the Land He Loved Best (what Oscar, at the end, would
call the Ground Zero of the New World), the Admiral's very name has become synonymous
with both kinds of fuku, little and large; to say his name aloud or even to hear it is to invite
calamity on the heads of you and yours. No matter what its name or provenance, it is
believed that the arrival of Europeans on Hispaniola unleashed the fuku on the world, and
we've all been in the shit ever since. Santo Domingo might be fukii's Kilometer Zero, its port
of entry, but we are all of us its children, whether we know it or not.
Junot Diaz, The Brief Wondrous Life of Oscar Wao (New York: Riverhead Books, 2007), 1 -2.

It was the evening of October 4, 1957, and die ballroom of the Soviet Embassy in Washington
was crowded with Soviet, American and other specialists in rocket research. As they stood,
glasses of vodka in hand, the sound of their mingled voices filled the ornate room. [...] At the
conference, whose working sessions had come to an end that day, the Russians had said they
would make no advance announcement of their first [satellite] attempt. [...] As I stood in the
ballroom with the scientists and a scattering of fellow newsmen, an official of the embassy
said I was wanted on the telephone. It was The New York Times'' Washington Bureau. 'Radio
Moscow has just announced that the Russians have placed a satellite in orbit 900 kilometers
above the earth,' the news editor said. Heart pounding with excitement, I bounded up the
great staircase to the ballroom and threaded my way across the floor to pass the news on to
Lloyd V. Berkner, the American member of the international committee running the IGY.
Whatever the Russians there may have known of their government's intentions, they could
not have known that the launching was successful. The Americans could at least have the
pleasure of making the announcement to the Russians in their own embassy.
W. Sullivan, Assault on the unknown: the International Geophysical Year (New York:
McGraw-Hill, 1961), 1.

1
INTRODUCTION - MASTERS OF LAW

Masters of Law: Arrogance, Ignorance, and then Humility

Speculation is a serious business. Assessing the intellectual links, if any, between space law,

extraterrestrial intelligent (ETI) life and the legacy of colonialism requires a certain level of

discipline. The hedges in this particular bet are already clear: 'intellectual links, if any' and

'a certain level of discipline'. At a superficial level, the connections between space law and

colonialism are legion and do not want for analogies. However, below the surface, it is quite

possible that there could be "no there, there" and it would be better to focus on some of the

law's "other others." Indeed, Associate Dean Dyzenhaus mentioned as much in kicking the

tires of a more general, breathlessly speculative version of this thesis topic. While I defended

that first sketch, I was left thinking that he had posed good questions without any easy

answers. Not having researched enough in the literature at that point, it seemed likely that

the only 'there, there' in this topic's future would be of the type reserved for consolation.

In retrospect, the 'breathless' quality of what I thought was a novel idea sprang from

two sources: the appearance of its novelty and the reality of my arrogant ignorance. Surely

no 'respectable' legal scholar had contemplated the radical re-imagining that would be

required of humanity and its laws following a sustained public encounter with ETI life? I

had a notion that there were not many such ideas 'lying around' and, if there were any, they

would be agreeably lacking. Having only an idea and some intuitions, and awkward as it is

to repeat, I envisaged that I had thought of some of the literal limits of human law.

Potential objections to pursuing such a project were perhaps even easier to anticipate:

• there had been no need for such contemplation in the past;

• there would be no need in the near or far future; and,

2
 • the necessary work had already been done through the collective fact of science
fiction and the collective fiction of the factual Search for Extra-Terrestrial
Intelligence (SETI).

In response to these straw men, I comforted myself with these impulsive rebuttals:

• the general topic would be faithfully academic in the non-instrumental sense by

pursuing knowledge for its own sake;

• speculative ETI law would preserve its utility as an intellectual probe or thought
experiment of actually existing laws or the discipline of Law itself; and

• whatever the likelihood, the sudden and permanent shift in our ways of being and
knowing following detection or contact with ETI life warranted some work in
advance of the revolutionizing event.

The Utopian appeal of such supposedly intrepid theoretical work also arose through the

notion that this intellectual event horizon might succeed in uniting (or forcing together)

humanity where others had previously failed or caused further fragmentation (e.g.

imperialism, colonialism, nationalism, capitalism/communism, globalization, global

warming/climate change, etc.).

Similar shocks or crises in the histories of law, religion, and science (when such

disciplinary divisions of intellectual labour did not necessarily dictate a scholar's areas of

expertise) brought to mind include: the shifts from atomistic Greek and Epicurean infinite

cosmos/A:osmo/ to an Aristotelian single world and Ptolemaic earth-centered or geocentric

worlds/mundi to Copernican, sun-centered or heliocentric planets observable by Galileo and

then modified by Newtonian mechanics and Kant's infinite evolving stellar systems (even

belief in extraterrestrial beings)'. These shifts in speculation and observation (especially

1
Regarding the intellectual history of the plurality of worlds tradition and debates, see: M. Crowe, "A History
of the Extraterrestrial Life Debate," (June 1997) 32 Zygon 2 at 147; M. Crowe, The Extraterrestrial Life Debate
1750-1900: the idea of a plurality of worlds from Kant to Lowell (Cambridge University Press, 1986); S. Dick,
"Anthropology and the Search for Extraterrestrial Intelligence: a historical view," (Apr. 2006) 22 Anthropology
Today 2 [Dick 2006]; S. Dick, Life on Other Worlds: the 20th Century Extraterrestrial Life Debate (Cambridge

3
with the technological innovation of the telescope) almost all laboured under the Catholic

(and also later Protestant) religious dominance of the time, including proclamations about

heresies against Church orthodoxies (Dick 1982). On a somewhat similar note, the

'discovery of the New World' comprises a similar shift in worldview spanning multiple

disciplines and spanning some of the same time period with similar overlaying religious

rationales and tensions. Much later, but again related to the perspective of this thesis, were

the seemingly unprecedented shocks of the dropping of the atomic bombs on Hiroshima and

Nagasaki in 1945 and the Sputnik launch and orbit in 1957 (itself manifesting the capability

and specter of nuclear bombs descending from outer space orbit in the context of the Cold

War). In this way, as a moment of crisis, it served as my own self-hypnotizing version of an

end to history. It proved especially seductive in its liberal construction of a common threat

that might destabilize North-West and East-South divisions otherwise complicated by too

much history, inequality, and violence.

Ultimately, I decided to compare some of the arguments and intellectual histories of

legal responses to human activities in outer space and intelligent extraterrestrials with

transatlantic colonization and some legacies of colonialism for decolonized states and

indigenous peoples. I thought that these two general topics might have something to do with

one another in a sustained, thesis-length type of way. However, even if this truth was not out

there for the law to apprehend, the serious business of my disciplined speculation would

likely not settle for less. Perhaps rather obviously, these topics were too big and I had (too)

University Press, 1998); and, especially, S. Dick, Plurality of Worlds: the Origins of the Extraterrestrial Life
Debate from Democritus to Kant (Cambridge University Press, 1982) [Dick 1982/'Plurality]. Note that the
Pope's astronomer Fr. Gabriel Funes (director of the Vatican Observatory) recently speculated on the existence
of intelligent aliens created by God (and potentially free from original sin) in the Vatican newspaper,
"L'extraterrestre e mio fratello", L 'Osservatore Romano (May 14, 2008; English edition). Among other things,
Funes also alludes to the recent 'demotion' of Pluto from being one of the nine planets of our solar system to a
mere planetoid (by the International Astronomical Union). See online:
http://news.bbc.co.Uk/2/hi/europe/7399661 .stm: http://padrefunes.blogspot.com/ (unofficial transl.).

4
much to learn. Unsurprisingly, this process did not turn out as expected, leading me away

from some topics and introducing other, unanticipated ones. In all senses of the word, it is a

very partial attempt at parsing together some of the related, but complicated, threads of First

World ETI legal theory^, colonial history, the sociology of science, Third World approaches

to space law and space science, and Fourth World/indigenous legal theories and traditions.

As seen both above and below, a discussion about the nature, discipline, and

philosophy of law is unavoidable when reading speculative legal theory about intelligent

extraterrestrials. After indirectly introducing some of the literature and issues through the

While I focus on approaches by legal scholars only, there is a voluminous non-legal literature regarding
extraterrestrials, the search for them, and their place in cultural and social imagination. For example, in the
SET! context, see: P. Ward, Life As We Do Not Know It: The NASA Search for (and Synthesis of) Alien Life
(Viking USA, 2005); R. A. Carrigan, Jr., "Do Potential SETI signals need to be decontaminated?" (2006) 58
Acta Astronautica 112; Declaration ofPrinciples Concerning Activities Following the Detection of
Extraterrestrial Intelligence (adopted by International Academy of Astronautics, 1989) (online:
http://www.setileague.org/iaaseti/protdet.htm): A.J.H. Clark, Aliens: can we make contact with extraterrestrial
intelligence? (New York: Fromm International, 1999); F. D. Drake, Is anyone out there? The scientific search
for extraterrestrial intelligence (New York: Delacorte Press, 1992); R. D. Ekers et. al., ed., SETI 2020: a
roadmap for the search for extraterrestrial intelligence (Mountain View, Calif.: SETI Press, 2002); B.
McConnell, Beyond contact: a guide to SETI and communicating with alien civilizations (Sebastopol, Cal.:
O'Reilly, 2001); Ed. C. Sagan, Communication with extraterrestrial intelligence (Cambridge: MIT Press, 1973).
Regarding UFO/alien invasion & abduction, see: B. Brown, They know us better than we know ourselves: the
history and politics of alien abduction (New York: New York University Press, 2007); G. M. Eberhart, UFOs
and the extraterrestrial contact movement: a bibliography (Metuchen, N.J.: Scarecrow Press, 1986); Eds. K.
Frazier, B. Karr, J. Nickell, The UFO invasion: the Roswell incident, alien abductions, and government
coverups (Amherst, N.Y.: Prometheus Books, 1997); P. Lucanio, Them or us: archetypal interpretations of the
fifties alien invasion films (Bloomington: Indiana University Press, 1987); J. Randies, Alien contact: the first
fifty years (New York: Sterling Publishing, 1997). Regarding the philosophical, religious, and other aspects of
contact, see: D. G. Tumminia, Alien worlds: social and religious dimensions of extraterrestrial contact
(Syracuse: Syracuse University Press, 2007). S. Bonting, "Theological Implications of Possible Extraterrestrial
Life,"(Sept. 2003) 38 Zygon 3; P.C.W. Davies, Are we alone? Philosophical implications of the discovery of
extraterrestrial life (London: Penguin Books, 1995); A. A. Harrison, After Contact: Human Response to
Extraterrestrial Life (Plenum Press, 1997); D. Lamb, The Search For Extraterrestrial Intelligence: A
Philosophical inquiry (Taylor & Francis, 2001) at chs. 7-8; A. A. Harrison, "Thinking Intelligently about
Extraterrestrial Intelligence: An Application of Living Systems Theory," (1993) 38 Behavioral Science 189; A.
A. Harrison & A. C. Elms, "Psychology and the Search for Extraterrestrial Intelligence," (1990) 35 Behavioral
Science 207; R.T. Rood, Are we alone? The possibility of extraterrestrial civilizations (New York: Scribner,
1981); G. S. Shostak, Sharing the universe: perspectives on extraterrestrial life (Berkeley, Cal.: Berkeley Hills
Books, 1998). Regarding fictional and literary depictions of contact/encounter, see: P. Monk, Alien theory: the
alien as archetype in the science fiction short story (Lanham, Md.: Scarecrow Press, 2006); M. Rose, Alien
Encounters (Cambridge, Mass.: Harvard University Press, 1981) [Rose or "Alien Encounters"]; R. Sekuler, Star
Trek on the brain: alien minds, human minds (New York: W.H. Freeman, 1998); M. S. Barr, Alien to
femininity: speculative fiction andfeminist theory (New York: Greenwood Press, 1987); A. Wendland, Science,
myth, and the fictional creation of alien worlds (Ann Arbor, Mich.: UMI Research Press, 1985).

5
attempts of, for the most part, other students struck, taken, or grasping with this idea (Chapter

One), I next turn to a close-reading and examination of Haley and McDougal's First World

ETI legal theory (Chapters Two and Three). After assessing their prescriptions and the roles

of history and science within their speculations, I examine the relationship and potential

community of (space) law and (space) science through the examples of the 'successful'

International Geophysical Year (IGY 1957-1958) and the 'failed' 1976 Bogota Declaration

(Chapter Four). Having noted the deficits of the First World ETI legal theory, and that the

Third World approaches might not by themselves be enough to overcome these deficits and

the community of law and science, I briefly present some Fourth World, indigenous legal

theories and traditions (ILT) addressing some of the fragmentation and failure of the above

(Chapter Five). Ultimately, I conclude with a brief discussion on the nature, discipline, and

academic force of law and legal theory suggested by my research on the legal approach to

extraterrestrial intelligent life through the assembled topics.

6
CHAPTER ONE - MASTERS OF THE UNIVERSE

Masters of the Universe: Outsiders Looking In Vain

In my law review research, non-space lawyers made two of the more severe criticisms of the

type of speculation sketched above early on in their legal careers. Interestingly, before

attending law school, both had studied English literature up to, respectively, the bachelors

and doctoral levels. Due to my layman status in space law and my masters in English

literature, I am similar in at least these two respects to the two authors discussed below.

In 1964, Richard A. Posner (as he then was) was working at the Federal Trade

Commission ("Member of the New York Bar") and was not far removed from his clerkship

at the United States Supreme Court under Justice Brennan. In that year, he also wrote a

searing book review of Law and Public Order in Space, which was jointly authored by

Myres S. McDougal, Harold D. Lasswell, and Ivan A. Vlasic (Yale University Press, 1963)

[McDougal 1963 or MLV]. In 1999, while still a student at Yale Law School and working

on its law journal, Barton Beebe (now an intellectual property and trademarks law professor

at Cardozo School of Law) wrote an even more searching critique. Unlike Posner's brief

book review dealing with one text, Beebe had done his homework and tackles the entire field

in a full length note, which makes his commentary the more interesting one of extraterrestrial

speculation generally (space law) and ETI theory in particular.

In his four-page book review of McDougal's 1,147-page collaboration, Posner notes up

front that he is "no expert on international law or international relations, let alone on the

technology, law, or politics of outer space" (Posner 1964 at 1370)3. While hoping to bring

3
R. Posner, Review of Myres McDougal et al., Law and Public Order in Space, 77 Harvard Law Review 1370
(1964) ["Posner 1964"]. As my introduction has hopefully made clear, I am similarly inexpert in these subjects.

7
fresh eyes to his work, Posner was aware that "the twin pitfalls of credulous overvaluation

and obtuse undervaluation are obviously great" (1370). Generally, he found Law and Public

Order in Space to be a "disappointment" despite its "virtues," which included the authors'

realizations that:

• space law could not be discussed in isolation from other disciplines/topics (history,
sociology, jurisprudence, world politics, war, science/technology, etc.);

• the rules of space law should not be codified or even attempted at the "present
primitive stage"; and,

• any such rules would "develop, not according to logic or high ideals, but according
to the interplay of the interests - many of them not apparent - of the nations
involved" (1370).

Posner found the book's realism and tentative conclusions to be far superior to much of the

other "shallow and even fantastic" writing in the then relatively new genre or sub-discipline

of space law (1370). Ultimately, however, the book's "serious" deficiencies served to

outweigh its merits in the eyes of young Posner.

More specifically, and common to other book reviews by more expert readers at the

time, Posner took issue with the authors' "intimidating and [...] for the most part superfluous

conceptual framework" (1370)4. Gleaned at the least from the book's title and preface, the

Law and Public Order in Space formed part of a larger project by McDougal, Lasswell and

others to put forward a policy-oriented jurisprudence with the goal of promoting (world)

public order and universal human dignity. Later referred to as the New Haven school of

international law, collaborative works that preceded and followed McDougal's treatise on

In addition to Beebe's note and this thesis, the tradition of 'inexpert' law student commentary on space law
continues. See P. Tobias, "Opening the Pandora's Box of Space Law" (2005) 28 Hastings Int'l & Comp. L.
Rev. 299 (arguing for the revision of space law and the Outer Space Treaty based upon the future construction
of a Space Elevator and the need for sovereignty and property in space managed through a central UN agency);
J. C. Thomas, "Spatialis Liberum" (2006) 7 Fla. Coastal L. Rev. 579 (titled after Grotius' Mare Liberum and
calling for space law to adopt aspects of the Law of the Sea given increasing privatization of space activities).
4
For example, see Bin Cheng, Book Review, Law and Public Order in Space (1965) 16 U.T.L.J. 1 at 210-213;
J. A. Andrews, Book Review (1965) 28 The Modern Law Review 5 at 613-614.

8
outer space include: Studies in World Public Order (1960), Law and Minimum World Public

Order: the Legal Regulation of International Coercion (1961), The Public Order of the

Oceans: A Contemporary International Law of the Sea (1962), and Jurisprudence for a Free

Society: Studies in Law, Science and Policy (1992) .

Posner would have none of this approach, with its "formal characteristics of [...] an

elaborate analytic machinery; an appearance of logical or scientific rigorousness and

precision; a specialized vocabulary; and great length" (1371). He found particular fault with

the authors' purported desire to "build a system" that resulted in "a great deal of rather empty

conceptualizing" (1371). As an example, he notes that the authors required "several hundred

pages to make" the simple point that "the law of the sea, with its basic rule of freedom, offers

a closer analogy than the law of the air" when dealing with the problem of sovereignty in

space (1371).

As a microcosm of long-running debates in law, legal philosophy, and international

law, Posner reserves his greatest criticism for the very existence of the new field. It is worth

quoting at length here:

The toughest and at the same time most basic question in this field, and one which
the authors ignore in subordinating their subject (law and public order in space) to their
system ("policy-oriented jurisprudence"), is: In what sense can we speak sensibly of "law" in
space? Can we speak in the same breath of space law and, say, railroad law? Is space simply
another field of experience susceptible of conventional techniques of legal analysis? Or is
there not, rather, a distinct ambiguity in the idea of "law" as applied to a field such as space?
In ordinary legal parlance, law denotes a system of rules, principles and standards
which, whether backed by coercive sanctions or not, are dependably obligatory in practice.
Law in this sense orders and prescribes, and its prescriptions are generally followed. The
word is also used descriptively, as when we speak of the law of gravity, which of course does
not "tell" the objects which are "bound" by it how to behave. There are laws of politics in
this sense — laws which describe how nations are likely to react in given situations — but such
laws do not compose a legal order as ordinarily understood. Finally, there are laws which are
really neither prescriptive nor descriptive, but simply express mankind's aspirations toward
peace and justice. The United Nations Charter is perhaps an example of this third sense of
law.

5
For example, see: W. Michael Reisman et al., "The New Haven School: A Brief Introduction" (2007) 32 Yale
J. Int'l L. 575 at note 2; "Tribute: Myres S. McDougal: A Selected Bibliography" (1999) 108 Yale L.J. 961 and
other articles in the same volume.

9
 Law in space, now and in the foreseeable future, seems of the second and third
categories, not the first. The present work, in company with much traditional writing on
public international law, seems for the most part oblivious of this fact. [1371-1372]

As an example, Posner discusses the authors' treatment of customary law and their finding

that custom "has established a rule of freedom in space so far as peaceful vehicles are

concerned," despite the Soviet Union's generally negative outlook on creating international

law through customary law (1372). Posner looks askance at the authors' footnoted

suggestions that the Soviet Union could ever be held to such a rule, due to the lack of a

decision maker ("To whom would the Soviet Union have to prove [...] its conduct"?) and the

insufficiently legal restraints at play ("fear of retaliation by the United States - are we

speaking of law or the balance of power?") (Posner 1372).

However, while he poses questions that are canonical to international law and

relations, Posner leaves out an important part of the authors' response to their own question

about the extent that customary law on the orbit or over flight of peaceful spacecraft would

bind the Soviet Union. Posner does cite the authors' question and suggested answer that "the

Soviets failed to protest this practice which, we believe, has now the authority of custom, but

they have been together with the United States the prime participants both in creating the

uniformities and reaping the benefits therefrom" (McDougal 1963 at 239, note 131).

However, in putting poignant questions to the authors' 'proof of lawful conduct' and

'retaliation avoidance' conjectures, Posner leaves out two important points made by

McDougal et al. First, the authors note that:

"No such consent was asked from other states by the Soviets when they decided to start
launching their satellites, nor was any suggestion made mat the overflown states could, if they
so wished, inspect the Soviet spacecraft [...]. On the contrary, as we have seen, the Soviet
commentators are unanimous in their emphasis that no duty or reason for such consent
exists." [McDougal 1963 at 239, note 131]

10
Alluding to at least one specific act, but equally many more, the authors arguably point to the

successful (and surprise) launch, orbit, and overflight of the first artificial Earth satellite,

Sputnik, by the Soviet Union on October 4, 1957. Equally important, this overflight occurred

during the global scientific collaboration known as the International Geophysical Year

(IGY), which took place from 1957 to 1958 and was generally characterized by far-ranging

consent and cooperation in scientific activities across land, sea, and air borders between over

60 states6. While I will discuss the IGY 1957-1958 in greater detail further in my thesis, it is

worth noting that the first artificial satellite flight took place in these circumstances. Aside

from this specific act, Posner also leaves out the authors' final conclusion on this Soviet

'tangent', all unfortunately buried in a footnote in McDougal's treatise, that "as long as the

Soviets limit their hostility to differing types of space activities of other states to mere

propaganda attacks, [...] their deeds rather than their words should be taken as the criterion

for determining their participation in the crystallization of a consensus about shared

competence in space" (McDougal 1963 at 240, note 131).

Although I noted that the above exchange formed Posner's greatest criticism of the

effort undertaken in Law and Public Order in Space, it is not the one most relevant to my

effort in this thesis. In his final criticisms directed to "the high proportion of extraneous

matter" and "the authors' unwillingness to recognize that their subject has any bounds"

(1373), Posner jabs at the penultimate chapter in McDougal's space treatise: "Potential

Interaction with Advanced Forms of Non-Earth Life" (McDougal 1963 at 974 - 1021).

Posner writes that:

The problem of men from Mars (and elsewhere) is still, mercifully, in the realm of science
fiction, and it is therefore not surprising that the authors have almost nothing to contribute to
its solution. They consider at length some interesting, but strictly earthbound, problems of

6
See Chapter Four below.

11
 cultural interaction - for example, the problem of Chinese adaptation to the realities of
Western power in the late nineteenth century. They do not relate this lore to the problems
man will face in outer space - but how could they?
There may be some value in compiling a handbook of analogies (which is what to a large
extent the present work is) for use in dealing with a fresh field of experience. The danger is
that such a compendium may not deal with sufficient precision or in sufficient depth with the
various subjects capable of providing fruitful analogies, and I do not think the present authors
have altogether escaped this danger." [Posner 1373]

For my purposes, this criticism looms large and can only be assessed after close inspection of

McDougal et al.'s speculations concerning ETI life (Chapter Three). However, both the

specter of inadequate analogical reasoning and McDougal's treatise in general emerge as the

peaks in a deep valley for Posner. Posner damns the entire field of space law as premature

with his faint praise of Law and Public Order in Space, which he views as its best work up to

that point, but ultimately not good enough to justify its existence: "marred by excessive

conceptualism, failure to differentiate legal from other problems, and preoccupation with the

extraneous [... it] aspires to be a treatise on the law of space, and succeeds only in

demonstrating that we are not ready for such a thing" (1374).

Law's Empire: Taking Humility Seriously

In his thirty-six-page note on space law in the Yale Law Journal (1999), Barton Beebe deftly

presents the rise and fall of the "golden age" or "Apollo-era" of space law through its

secondary legal literature (late 1950s to mid-1960s)7. Listing a litany of literally outlandish

questions following the advent of the 'Space Age', Beebe illustrates the wide range of

questioning that took place:

"Who owns the universe?" What is the legal status of "advanced forms of non-earth life?"
[...] "What kind of twig-breaking will be sufficient to establish seisen where no twig has ever
grown?" "What law . . . would be that to rule over us in common with one-, bi-, tetra-, or
multi-dimensional races?" Is "trespass in vacuo" actionable, and does "Earth law" provide
useful analogies? "What law would govern in a world where a man is able to carry a ten story
building?" Should the profession launch an inquiry into "the legal aspects of rainmaking?"

7
B. Beebe, Note, "Law's Empire and the Final Frontier: Legalizing the Future in the Early Corpus Juris
Spatialis" 108 YaleLJ. 1737 (1999) [Beebe].

12
 What are the career prospects for the "space lawyer," and to what extent should she prepare
for "relativity problems?"
[Beebe 1737-1738; notes omitted]

While he notes the difficulties of the Cold War and predicting state's interests in advance

(1738), Beebe applauds the numerous achievements over the years:

the 1959 Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, the 1963
Declaration of Legal Principles Governing the Activities of States in the Exploration and Use
of Outer Space, and the near-legendary Outer Space Treaty of 1967 [...], the Rescue
Agreement (1968), the Liability Convention (1972), and the Registration Convention (1975),
and then [followed] by the still-controversial Moon Treaty (1978)" [1738-1739; notes
omitted]

Having noted these 'substantive' developments, Beebe returns to the main point of his note,

which contends with the golden age of space law literature as "an experiment not so much in

the rule of law as in the rule of lawyers" (Beebe 1739). While I will discuss some of the

merits of his multifaceted criticisms below, I will first outline the key arguments made in his

Note.

In a fascinating analysis that reads the "Apollo-era space law [as] a talking cure"

where the "disease was the rise of science and the prognosis was the death of law" (Beebe

1741), the experimental rule of lawyers is characterized by Beebe as a professional crisis in

the law. In response to their "own, professional 'Sputnik Crisis'" (Beebe 1741), Beebe

argues that the 'golden era' space lawyers did two things: 1) they wrote a lot; and 2) they

offered a distinctly legal Utopia in competition with the "scientized" outer space and perfectly

"technological earth" threatening their practice and the appeal and universalism of their

knowledge (Beebe 1741). In conjunction with attempted codification, Beebe argues that the

familiar legal concepts and "rhetoric of property and sovereignty" were used to reduce and

co-opt science and outer space to law's simultaneously "countercultural, humanist" empire

(1741-1742). Again, while this claim will be discussed below, Beebe's focus remains on the

exceeding volume of sometimes dubious and fantastic space law writing resulting from a

13
profession panicking at the prospect of an endangered or obsolete existence (Beebe 1743-
o

1744) . Beebe also highlights the criticisms leveled at this 'boom' in the popular press and

from some other space law or general legal professionals, including reference to Posner's

review and summary dismissal of McDougal et al.'s 1963 treatise.

In response to the "Sputnik Crisis" in the United States, and its initial failed Vanguard

("Kaputnik") satellite response, Beebe describes the rise of the science-centered, bureaucratic

expertise-driven, and technocratic "American Rocket State" (after Thomas Pynchon's

Racketen-Stadt in Gravity's Rainbow and informed by the Pulitzer prize-winning historical

work in Walter A. McDougall's The Heavens & the Earth) (Beebe 1743, note 53; 1744-

1748)9. In the ensuing insecure, one-way battle with science (used interchangeably with

technology by Beebe), law attempts to extend its rule to the legal 'void' or 'vacuum' of space

through "a sudden flood of legal commentary on space exploration in seminars and

symposia, in bar journals, both local and national, in law journals, in legal newspapers, and in

the popular media" (Beebe 1748-1749). Interestingly, from the numerous flotsam and jetsam

of topics discussed within this inky deluge, Beebe settles upon three distinctive examples "in

which legal knowledge rushed in to fill this vacuum" (Beebe 1758). Specifically, he

addresses the golden/Apollo-era space lawyers' attempts to:

For a different approach, in part distinguishing between public science and private, commercial, profit-driven
technology, see Colin B. Picker, "A View from 40,000 Feet: International Law and the Invisible Hand of
Technology" (2001) 23 CardozoL. Rev. 149.
9
Although not disputing the reactions by politicians, media, and 'issue-makers' to the Soviet technological and
engineering coup of October 4, 1957, (see Roger D. Launius, "Sputnik and the Origins of the Space Age"
(online: < http://history.nasa.gov/sputnik/sputorig.htnil>) and Walter A. McDougall, ... The Heavens and the
Earth: A Political History of the Space Age (New York: Basic Books, 1985) [McDougall or "The Heavens and
the Earth"] at 132, 141-156), there was mixed evidence at the time with respect to any immediate popular sense
of crisis among the general public. For example, see the reported observations of social psychologists Donald
N. Michael and Raymond A. Bauer in: International Affairs Seminars of Washington, "American Reactions to
Crisis: Examples of Pre-Sputnik and Post-Sputnik Attitudes and of the Reaction to other Events Perceived as
Threats," 15-16 October 1958, U.S. President's Committee on Information Activities Abroad (Sprague
Committee) Records, 1959-1961, Box 5, A83-10, Dwight D. Eisenhower Library, Abilene, Kansas (online:
<http://history.nasa.gov/sputnik/oct58.html>).

14
 1) demarcate air and outer space;

2) codify space law; and,

3) conceptualize the legal status or rights of extraterrestrial civilizations (Beebe 1758; Part
III, sections A - C).

Although I would like to discuss all three examples, I will only discuss Beebe's critique of

the legal approach to extraterrestrial civilizations.

In the third example taken by Beebe, "Brooding Omnipresences: The Legal Status of

Extraterrestrial Civilizations," he discusses the outgrowth of legal literature on

extraterrestrials as stemming from space law being "emboldened" by "scientific writing on

the possibility of exobiological life" and "an age-old literature, both fictional and

philosophical, on the 'plurality of worlds'" (1767). In describing how space law/law's

empire approached the subject, Beebe notes that most "Apollo-era space-law commentators

took for granted the need to formulate a legal theory of extraterrestrial life forms" based on a

traditional, legal deduction of their existence and a similarly traditional assumption that it

must be resolved in a juridical fashion (1767). One particular formulation was the 'metalaw'

of space put forward by Andrew G. Haley, described by Beebe as an "aerospace industrialist

and lawyer" and "leading popularizer of space law during the 1960s" (1767-1768). The main

insights drawn by Beebe from Haley's work concern:

1) the desire to prevent the extension of anthropocentric law into outer space (in
order to avoid repeating the crimes and mistakes of humans on Earth); and

2) the inversion of the golden rule as the relevant law for space/aliens: "We must do
unto others as they would have done unto them" (1768; emphasis added).

Akin to his own opinion, and despite citing three other authors who potentially assert its

relevance, Beebe states that the "majority of commentators had little regard for metalaw"

(1768; note 237, citing Fasan, Relations (1970) and Robinson & White, Envoys of Mankind

15
(1986), below). Beebe goes on to discuss other examples of space law writers, academics,

and practitioners discussing extraterrestrial civilizations (e.g. Hyman, Magna Carta of Space;

Yeager, Senate Symposium (1961)). At any rate, perhaps because the subject does not merit

further discussion, Beebe does not deliberate upon the specifics of these different

formulations. Instead, his focus remains upon detailing examples of such conjecture and

then providing explanations about the underlying motivations.

In doing so, Beebe begins by citing Philip Yeager's exhortation for such theoretical

work, which Yeager found worthwhile for its virtuous humility and avoidance of what "some

physical scientists have achieved by their narrow assumptions that no intelligent life can exist

in the Solar system [...] except under the physical conditions and according to the physical

laws which they themselves have thus far managed to observe" (Yeager, Fourth Colloquium,

in Beebe, 1769). Beyond such "professional one-upmanship" (1769), Beebe finds another

home for ETI legal theory: the "larger 'culture of dissent' against, among other things, the

totalizing knowledge-claims of the Rocket State" (1769). Beebe grounds the particular

extraterrestrial culture of dissent in "American ufology" and the resistance towards

expert/systems analysis through mysteries open to the opinions and research of amateurs and

civilians (1769 at notes 244-245 (relying on Henriksen and Dean)). Thus, despite some

seeming deficiencies, the conclusion remains consistent with Beebe's earlier focus on the

law's imperial insecurities about the 'rise' of science and the Rocket State:

In this sense, legal commentary on extraterrestrials expressed the full ambition of law's
empire. It projected the rule of law and lawyers into the cosmos, and sought to establish legal
knowledge over the unknown and the unimaginable. There would be no blank spaces on the
law's map of outer space, no unregulated commons, no unregulated anything. (1768-1770)

Since Beebe identifies this legal desire to rule, map, and regulate space/aliens as participating

in the larger 'culture of dissent' at the time, golden age space law commentary emerges as a

16
hypocritical literature. According to Beebe, when the law, society, and its lawyers

apparently thought themselves under threat from totalizing science and/or death from above,

the lawyers responded in the only way they knew how - by writing more laws10. In lieu of

laws or treaties, "legal theory on extraterrestrials" had to suffice, constituting "a kind of

transcendental imperial principle: The 'myth of modern law' became, in Andrew Haley's

words, the 'rule of law governing all creation'" (Beebe 1770). By lumping these speculative,

imperial writings within an anti-expert, anti-science culture of dissent, Beebe also points to

the apparently paradoxical characteristics of this literature.

However, while Beebe relegates space law/law's empire to this duplicitous status, he

does find an exception to his rule of disciplinary insecurity and imperialism. For Beebe, this

exception emerges only through a postcolonial iens' as "the most striking peculiarity of

early space law: that Latin American commentators figured so prominently in the movement,

and formed in fact their own distinctive school of thought" (1770). While noting that "only

Brazil had any space policy worth mentioning" (1770), Beebe points to "the Argentinian [sic]

Aldo Amarando Cocca, the Uruguayan Alvaro Bauza Araujo, and the Brazilians Hesio

Fernandes Pinheiro and Haraldo Valladao [who] were leading voices in international space

law" (1770). According to Beebe, these authors' works display an "overriding concern with

the rights of extraterrestrial civilizations" that contains a "practice of subverting the

On this point, note that the space law commentators never stopped writing. In fact, by at least 1999 (after
which the ink has still not stopped flowing — witnessed in part by this thesis), there were "more than 1000 pages
of bibliography, alone" (N. Jasentuliyana, International Space Law and the United Nations (1999) at 17). In a
book review of a book by Bin Cheng, Glenn H. Reynolds comments briefly on Beebe's assessment (Book
Review, Studies in International Space Law (2000) 40 Jurimetrics Journal 357 at 362, note 4): "Given our
present overlawyered state, one may doubt Beebe's premise that early interest in space law stemmed from a
desire by attorneys to establish that they were still relevant in the age of the atom; either that, or one may
conclude that lawyers succeeded in establishing their relevance beyond the wildest dreams of any one alive in
1960. Premises aside, however, Beebe's note is an interesting and valuable history of space law's early days.
And he is certainly right that "Modern space law has evolved, at its best, into a highly technical discourse
spoken primarily by specialist practitioners," largely leaving its idealistic roots behind. [...] The same, no
doubt, could be said of Admiralty law, though the presence of idealistic roots for Admiralty is less well-
documented."

17
terminology of first-world space law, and international law with it" (1770). Beebe writes that

this subversion emerged against "the backdrop of postwar decolonization, dependency, and,

in smaller measure, liberation theology" (Beebe 1770) and utilized space law in order to

counter, "the ideas of sovereignty, predominance, appropriation of territories and enslaving

of the respective inhabitants, which maculated the birth of International Law in the XVth and

XVIth Century" (citing Valladao, Second Colloquium in Beebe 1770). Although Beebe

clearly admires this approach and perspective, stating that such work "deserves an extended

treatment" (1770), he does not provide it in his note. Instead, he concludes the section on ET

legal theory by pointing to a potentially redeeming perspective within the larger imperial

project of law reacting to scientific/technological change and ascendancy. Paradoxically,

Beebe asserts that these Latin American "voices of intervention in the dominant global

narrative of technological advance" somehow also speak "from the visionary center" (1771).

Almost paralleling one of John Locke's (in)famous aphoristic comments in his Two

Treatises, Beebe concludes that "in the beginning, all of space law was, in some sense, Latin

American" (1771)11.

Whether the "Latin American" perspective on space law actually constitutes a

distinctive school of thought, and whether or not these commentators escape from the

reactionary/imperial taint of the golden/Apollo era space law described by Beebe in relation

to science, technology, and society, all remain to be seen. Nonetheless, Beebe and I do agree

in one of his major conclusions, which concerns the constitutional relationship between law

11
See John Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764 [1689])
(online: http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=222) at Book II, Of Civil
Government, Ch. V, Of Property, Sec. 49: "Thus in the beginning all the world was America, and more so
than that is now; for no such thing as money was any where known. Find out something that hath the use and
value of money amongst his neighbours, you shall see the same man will begin presently to enlarge his
possessions." [emphasis added]

18
and private property, which in the colonial encounter emerges most importantly as land and,

in the space age moment, emerges as outer space and celestial bodies. In this sense, Beebe

notes that law's empire works to "acculturate the future to the law even as it indoctrinates the

present" (1773), but can only do so by honoring "where the rule of law begins and of what

would be its 'great and chief end'" (1773). Citing Locke, Beebe repeats this phrase ("its

great and chief end") from earlier in his essay to underscore the power of law and its

particular disciplinary persuasion in the face of death-by-science: "The great and chief end

therefore, of Mens [sic] uniting into Commonwealths, and putting themselves under

Government, is the Preservation of their Property." (Locke in Beebe 1763, note 198).

Consequently, some of the issues raised in his note dovetail with my own interests. These

include:

• the analogy drawn between the two periods of transatlantic colonization and the space
age by Valladao, Haley, McDougal, et al.;

• the relationship between space law/ETI legal theory and proto- and contemporary
international law;

• the interaction between space law/law's empire versus science/technology - described

by Beebe as contested Utopias, but what I argue are more so integrated projects with
internal contests); and,
19
• the role of legal and other concepts of property and nature in illuminating debates
about colonization, colonialism, extraterrestrial intelligent aliens, outer space, and the
academic and disciplinary force of the law.
In a search for motivations behind the desire to theorize ETI life from a legal perspective,
1^
there are multiple reasons proffered by various space law commentators . As noted above,

For example, see the constructivist account in Kurt Burch, "Property" and the Making of the International
System (Boulder, Colorado: Lynne Rienner Publishers, 1998) ["Burch"] generally and at 148-162.
13
Contrary to Beebe's emphasis upon the disciplinary competition between law and science at the time (as
opposed to that between capitalism and communism), there are of course other interpretations of the emergence
of space law. For example, see: Joanne Irene Gabrynowicz, "Space Law: Its Cold War Origins and Challenges
in the Era of Globalization" (2004) 37 Suffolk U. L. Rev. 1041. For another example, positing a logical

19
while Beebe grounds their motivations as dissent against the dominant SciTech paradigm of

the day (resistance that opens the space for an alternative, imperial, uniquely legal Utopia),

the commentators' works themselves do not always support such an interpretation. Indeed,

depending upon who and what you read (as well as how), the opposite conclusion can be

equally apposite.

For instance, from a non-lawyer perspective in ... The Heavens and the Earth, Walter

McDougall points to a divide between the idealist/natural law school of Haley and the

realist/positivist school of M. McDougal et al. concerning the codification and development

of space law, which he describes as an already moot or "academic" (188) debate given the

conclusions drawn in a secret 1958 National Security Council (NSC) report recommending

the U.S. pursue a minimalist program emphasizing space for 'peaceful purposes' (as opposed

to 'non-military') in order to navigate between Utopian total disarmament (including foreign

American military bases) and complete UN international control at a premature stage that

would forestall U.S. space reconnaissance of Soviet military activity (180-189)14.

correspondence between space law and fragmented, post-modern international law despite the former's
contended disjunction, see S.G. Sreejith, "Whither International Law, Thither Space Law: A Discipline in
Transition" (2008) 38 Cal. W. MIL J. 331 at 348-358 (regarding the overlooked debate between Wilfred
Jenks' Victorian positivist outlook on the common law of all mankind versus McDougal's American
instrumentalist emphasis on individual human dignity through greater participation in societal decision-making)
and 359-362 (regarding the failed relationship between law and science and intellectual 'pink clouds' such as
legal relationships with alien intelligences) ["Sreejith"]. On the opposition between Jenks' approach and
McDougal's position in international law generally, see M. Koskenniemi, The Gentle Civilizer of Nations: Rise
and Fall of International Law from 1870-1914 (New York: Cambridge University Press, 2001) at 474-479.
See Delbert R. Terrill Jr. (Colonel, US AFR), The Air Force Role in Developing International Outer Space
Law (Air University Press: Maxwell Air Force Base, Alabama, May 1999) (online:
http://www.au.af.mil/au/aul/aupress/catalog/books/Terrill_B69.htm). Emphasizing an anti-Convention, ad hoc,
free passage, Eisenhower's Open Skies doctrine, surveillance satellite and technology-driven approach to space
law, which the author concludes was the eventual result and currently existing custom (with the exceptions of
anti-satellite and anti-ballistic missile agreements, although these two arguably further the initial interests too).
Combined with Walter McDougall's argument concerning the need for an initial, successful Soviet Sputnik in
order to instantiate such a custom in international law (see Chapter Four, below) the Sputnik 'crisis' appears to
have been far from disruptive to the goals of past and successive administrations.

20
 As noted by Beebe in his preference for Myres McDougal's approach, historian Walter

McDougall saw this NSC report as the vindication for such positivist realism in contrast to

Haley's natural law idealism (Beebe, note 201; MLV at 188). On this last point, however, at

least one question arises: how does this interpretation account for McDougal, Lasswell, and

Vlasic's exhaustive analysis (not discussed in Beebe's note) of relations with 'advanced

forms of non-earth life' in Law and Public Order in Space?15 As seen below, McDougal et

al. have much more to say about intelligent extraterrestrials than even Haley. Ultimately,

these perspectives will be seen to be much closer than otherwise depicted. This kinship goes

to the nature of law, philosophies of law, and legal scholarship as either opening or

foreclosing future options16. By remaining open in their own ways, Haley and MLV are

closer than previously thought and than this divide would otherwise suggest. For example,

apart from the imperial gesture (though proceeding by different particular methods), both of

their perspectives similarly elide the colonial histories and, especially, indigenous legal and

living traditions bound up in these histories and their legacies of resistance and survival17. In

addition, Haley privileges the peaceful, international, scientific cooperation that took place

during the International Geophysical Year 1957-1958 (IGY) as a potential model for outer

space relations. Additionally, McDougal, Lasswell, and Vlasic privilege science and

technology as the marker for recognizing and structuring potential relationships with

advanced forms of non-earth life.

15
While Beebe draws his analysis for the sensibility of McDougal's views from Myres S. McDougal & Leon
Lipson, "Perspectives for a Law of Outer Space" (1958) 52 Am. J. Int'l L. 407, this same sensibility does not
abide or carry-over in McDougal's collective work with Lasswell and Vlasic.
Professor Sanjay Reddy articulated this function ("law's facticity") memorably in arguing for the linkage of
trade and labour rights (University of Toronto, Faculty of Law, Globalization Workshop, Fall 2007).
17
While I do not know what materials (or what medium) might have been available to Haley, MLV, and others
at the time, it is clear that the ones I refer to below (Chapter Five) would not have been among them. Although
not always successful, I do not intend to condemn Haley & MLV for what they did not say, but instead try to
point out what went unsaid and what could or should be added to the conversation from my perspective and the
materials available to me.

21
 Moreover, having raised the specter of earlier colonial analogies, the interconnection of

multiple disciplines in the space age and the development of human activities in outer space

mirrors the driving forces of foreign technologies/sciences bundled with political, religious,

legal, and commercial forces that characterized the North and South American colonial

encounter. Similarly, the notion of property cannot be discussed as either a purely

legal/formal one or socio-economic or techno-scientific - instead, it is a regime that must be

managed and maintained at multiple levels by multiple public and private actors18. As well,

the historical antecedents to Beebe's reading of monolithic Law and/versus monolithic

SciTech undermine simple appraisals of the Space Age as uniquely critical or adversarial19.

At any rate, having made a general introduction through assessment of these two probing

criticisms of ETI legal theory and space law, it is best to read the primary texts themselves.

Summary and Segue: Personal, Legal or Political, It's All Academic

Whether it is Dyzenhaus' initial concern that there could be 'no there, there', Posner's

criticism of unfruitful analogies in an exotic, but entirely un-evolved legal order, or Beebe's

view of disciplinary self-preservation through property-pandering, it is clear that several

weighty criticisms have already been leveled at speculative space/ETI law. My thesis must

contend with these criticisms insofar as it seeks to add a new wrinkle to the inadequate

answers already made in response to a largely unasked and unwanted question. Even as

space aliens continue not to land with each passing day, this 'new wrinkle' necessarily takes

the form of a thought experiment or meditation on the nature and discipline of law. In my

18
For illuminating discussions on these points in related subjects, see: Burch, above; Sean Coyle & Karen
Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Portland, OR:
Hart Publishing, 2004) generally and at 83. See also: Bradley Bryan, "Property as Ontology: On Aboriginal and
English Understandings of Ownership" (2000) 13 Can. J.L. & Juris. 3-31 (noting how political expediency
leads to ontological inaccuracies).
19
See Chapter Four, below.

22
thesis, this thought experiment arises by taking the legal speculation about problems created

by contact with ETI life as seriously as they were made in their respective contexts. Through

close reading, I attend carefully to what these authors do and do not say. In doing so, I try to

outline the gaps, elisions, and assumptions that characterize or punctuate these speculations

while also gesturing to potential alternative approaches to these as yet unrealized 'space law'

problems that are simultaneously definitive of some historical and persistent problems with

law on earth and its relationship with other ways of thinking (e.g. property, the environment,

decolonized states, indigenous peoples, and the academic discipline of law in relation to

history, science, policy science, etc.).

Legal speculation about the problems created by contact with extraterrestrial

intelligence makes superficial reference or analogies to earlier periods of cultural contact

while forgetting the historical violence or eliding the complicated, living legacies of such

exchanges. In this way, they demonstrate some current, pervasive limits of the law as a

discipline and point to conceptual gaps that need to be addressed. As noted by National

Aeronautics and Space Administration (NASA) chief historian and history of science scholar

Steven J. Dick, the "extraterrestrial life debate is a case study of science attempting to

function at its limits" {Plurality, 111). In the next chapter (Chapter Two), I assess Haley's

attempts to grapple with these limits, before turning to those of McDougal, Lasswell, and

Vlasic (Chapter Three). I then look at potential communities of law and science through the

examples of space law and space science in the IGY and the Bogota Declaration. Finally, I

briefly outline some notes on a Fourth World perspective suggested by some current work in

indigenous legal theory/traditions.

23
CHAPTER TWO - METALAW

Haley's Comments: the Desire drive

In his 1963 book, Space Law and Government, Andrew G. Haley presents a

compiled, annotated, and updated version of much of his collected writings on space law20.

Before discussing his theories on the legal approach to ETI life, detailed in chapter 12 of

Space Law and Government ("Metalaw"), it is useful to look at some of the introductory

material of the book.

In this magnum opus of one of the first "practitioners" of space law, Haley enjoys

formidable endorsements. They are worth reviewing insofar as they highlight many of the

intersecting concerns of both my thesis and the discipline of space law. First and foremost,

Haley's book is introduced by then-Vice President of the United States, Lyndon B. Johnson.

In his brief foreword, Johnson begins by stating that "the great new problems confronting

civilization in the Age of Space require the close and devoted attention of the social scientists

as well as of the natural scientists, and that principles of justice and order should be

established in these early days of man's exploration of space" (Haley 1963, vii). After noting

his hopes for setting aside "the manmade problems that plague this world" through a

telescopic perspective of the tiny Earth in relation to the universe, Johnson notes that Haley

emphasizes international cooperation for much of his book through discussions of official

and nongovernmental institutions (vii). Having expressed his hopes for international peace

and justice through a spatial (telescoping) maneuver common to the space law/science fiction

Andrew G. Haley, Space Law and Government (Appleton-Century-Crofts: New York, 1963) [Haley 1963].
Haley died in 1966. See also the recent interview with Haley's compiler (acknowledged in his preface),
Stephen Doyle (online: http://rescommunis.wordpress.com/2007/ll/12/interview-dr-stephen-e-doyle/).

24
genres , Johnson then makes the equally common temporal (historical) gesture, which is

worth quoting at length here:

From the beginning of time until about five centuries ago, men lived out their lives on earth
without hope of rising above the station of their birth. They had no expectation of freedom -
no expectation of justice - no thought of individual rights - no conception of a voice in
governing themselves. Then came the discovery of the New World - the world of the
Americas. Since that day, man has climbed steadily to his noblest heights. His status -
economically and socially - has risen through every century. Most importantly, the spirit of
freedom and justice has proven its viability.

Discovery, exploration, and a floodtide of invention for five centuries have brought the
liberation of the human spirit and the elevation of human dignity and worth. Freedom as we
know it would not have come into existence - and certainly would not have survived -
without the opening of this great new frontier on earth. Today the unlimited reaches of space
constitute the New World of freedom. [Haley 1963, viii]

This progressive story about law, science, technology, and civilization is a common one22. If

likening them to baggage, Johnson's statements would require much unpacking, given their

wide range over time and the genesis of humans, hope, justice, and self-governance.

For Johnson, these wide themes are at least conjoined to "the discovery of the New

World," given the ensuing "floodtide of invention for five centuries that have brought the

liberation of the human spirit and the elevation of human dignity and worth." However,

these two events are not merely coincidental; instead, Johnson draws a causal link between

Mark Rose, Alien Encounters (Cambridge, Mass.: Harvard University Press, 1981). Rose examines sci-fi
themes drat relate especially well to ETI legal theory (genre, paradigm, space, time, machine, & monster).
22
For such quick progression stories about the law, states of nature, and Mosaical genesis, see some of the old
Ontario C-14 curriculum approved law textbooks for secondary school: J.D. Falconbridge & S.E. Smith.
Manual of Canadian Business Law (Toronto: Sir Isaac Pitman & Sons, 1930); W.H. Jennings, Canadian Law:
for business and personal use (Toronto: Ryerson Press, 1951); F.E Jarman, In Pursuit of Justice: Issues in
Canadian Law (Toronto: Wiley Publishers, 1976); D.L. Gibson & T.G. Murphy. All About Law: Exploring the
Canadian Legal System (Toronto: Wiley Publishers, 1977/2002); P. Fitzgerald, This Law of Ours.
(Scarborough, ON: Prentice-Hall of Canada, 1977); M. Liepner, Applying the Law. (Toronto: McGraw-Hill
Ryerson, 1981). For a look at how these stories have changed over time, compare with current approved
textbooks: A. Blair, K.R. Elliot, & B. Manning et al. Canadian and International Law (Toronto: Oxford
University Press, 2004); G. Alexandrowicz, M. Austin, & R. Cairns-Way. Dimensions of Law: Canadian and
International Law in the 21st Century (Toronto: Emond Montgomery Publications, 2004); A. Blair, W.
Costiniuk, & L. O'Malley et al. Law in Action: Understanding Canadian Law (Toronto: Pearson Education
Canada, 2003). On a related point, Borrows discusses the teaching of hierarchy of sources of law, with custom
relegated to the bottom and simultaneously assumed or attributed to indigenous peoples in Canada in
classrooms and current textbooks (e.g. Alexandrowicz; Hogg). He also emphasizes how the erasure or
subordination told in the story of hierarchy of laws gets repeated when the reception of law story gets told,
either with ignorance or emptying of indigenous legal traditions existing in Canada before colonization
(Borrows 2008, below at 14-17; see Chapter Five below).

25
the two: "Freedom as we know it would not have come into existence - and certainly would

not have survived - without the opening of this great new frontier on earth" (viii). Of course,

the opening of this frontier and the innovation or birth or freedom "as we know it" demanded

closure of the pre-border indigenous peoples inhabiting the 'discovered' lands since time

immemorial. As with biblical genesis stories, the 'discovery of the New World' carries with

it some original sins (indigenous dispossession and the practice and trade of slaves). As with

other political/philosophical genesis stories, Johnson's narrative also progresses from states

of nature to states of authoritarian tyranny and then emancipated states of justice, rights,

freedom, and innovation . By linking this progression with the discovery of the frontier and

its 'opening', Johnson seems to emphasize the necessity of the 'New World' in achieving and

maintaining the goods of the past 500 years. As well, writing as he does in the context of the

Cold War, Johnson identifies the next guarantee of further human development: "the

unlimited reaches of space constitute the New World of freedom" (viii). Through this

foreword, Johnson provides a snapshot, however incomplete, of two key struggles that

inform space law writing: transatlantic colonialism and the Cold War. This snapshot remains

incomplete insofar as Johnson and most others elide certain histories, realities, and legacies

of both bi-polar colonialism and the Cold War duopoly: indigenous peoples (sometimes

erased from explorer narratives and emptied from the land) and the Third World (sometimes

forgotten, or merely triangulated, in the battle between the First and Second Worlds).

The valorization of one way-discovery and exploration fits revisionist histories of the

transatlantic colonial period and the birth of space law because: 1) in the colonial version,

indigenous peoples have been either entirely forgotten or reduced to mere historical,

See B.Z. Tamanaha's painstaking critique in A General Jurisprudence of Law and Society (2001), below.

26
cautionary tales ; and 2) in the space law iteration, the seemingly undeniable statement that

"of course, space colonialism is distinguished by the absence of any native peoples who

might be oppressed" (Reynolds 2000 at 363, note 20). As with Vice President Johnson and

the two Members of Congress who also contribute to his foreword, Haley invokes a similar

spirit of discovery in his Preface.

Haley begins by noting that the "Exploration of the universe has been a dream of man

since he first emerged on earth, and this yearning of the human spirit appears to dwell in all

of us" (H63, xi). Describing it as a "deep instinctive desire" (H63, xi), Haley's preface

works its way through anecdotes concerning his early role in the rocketry industry during

World War II (WWII) with a group of similarly "yearning" scientists and industrialists. His

first work began through discussions with the commander of the U.S. Army Air Corps and

the development of the "jet-assisted take-off (Jato) motor" that served as auxiliary power for

heavy aircraft to "take off from short and hastily constructed airfields" (H63, xi). Although

initially under the auspices of a small rocket group under Dr. Theodore von Karman at the

California Institute of Technology, concerns of the university's president about its

involvement in "production scale manufacturing" led to the creation of a new, private

For example, see 44B Am. Jur. 2d International Law § 36, citing City ofSherrill, NY. v. Oneida Indian
Nation of New York, (2005) 544 U.S. 197,125 S. Ct. 147, Oneida II, (1985) 470 U.S. 226 at 234, and Oneida I,
(1974) 414 U.S. 661 at 667 ("Under the 'doctrine of discovery,' fee title to the lands occupied by Indians when
the colonists arrived became vested in the sovereign, which at first was the discovering European nation, and
later the original States and the United States.). See also R. A. Williams, Jr., Like a Loaded Weapon: The
Renqhuist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of
Minnesota Press, 2005); J. Muldoon, "Discovery, Grant, Charter, Conquest, or Purchase: John Adams on the
Legal Basis for English Possession of North America," in C.L. Tomlins and B.H. Mann, ed., The Many
Legalities of Early America (Chapel Hill: University of North Carolina Press, 2001) at 25-46; Johnson v.
M'Intosh, (1823) 21 U.S. (8 Wheat.) 543 at 591; Mabo v. Queensland (No. 2) (1992), 175 C.L.R. 168 (H.C.A.);
Western Sahara, Advisory Opinion, 1975 I.C.J. 12, para. 76-86 (Oct. 16). On an updated and related note, see
R.M. Bratspies, "The New Discovery Doctrine: Some Thoughts On Property Rights And Traditional
Knowledge (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law:
Theoretical Approaches to International Indigenous Rights) (2007) 31 Am. Indian L. Rev. 315 at 333 - 340
(comparing the doctrine of discovery and historical Age of Discovery colonization to contemporary intellectual
property rights, biodiversity, TRIPS, and traditional indigenous knowledge).

27
company, Aerojet (which is still in the space and defense contracting business today:

http://www.aeroiet.coml In joining to form the company with Dr. von Karman and others,

Haley notes that they knew it would be difficult, unrewarding and that they "would be looked

at askance and talked of as men from Mars" (Haley 1963, xi-xii). Despite the scientific,

social and financial obstacles, Haley nonetheless locates the motivating, seemingly universal

ethic uniting these men:

At this meeting the incident occurred which has always loomed most importantly in our
minds over the years - the spontaneous declaration by all of us that our real and abiding
purpose in embarking on this harrowing and even dangerous business was actually to satisfy
our interior inspiration that whatever we did would be in furtherance of man's exploration of
the universe. [Haley 1963, xii]

Noting this meeting as the genesis of their company, Haley reflects that their "effort would

never have been initiated if we had lacked the bond between each of us which resides in the

soul of man - the yearning to explore the universe" (xii). Paralleling Johnson's comments

drawing a causal connection between the birth and sustenance of freedom through the

opening of frontiers, Haley's efforts also demonstrate an unqualified valorization of

discovery. He further notes that:

"Each of us voluntarily gave voice to the inspiration we felt, and I shall never forget the ever-
present humor of Dr. von Karman as he turned to me and said, "Now, Andy, we will make the
rockets - you must make the corporation and obtain the money. Later on you will have to see
that we all behave in outer space." With a twinkle in his eye, he added, "After all, we are the
scientists but you are the lawyer, and you must tell us how to behave ourselves according to
law and to safeguard our innocence."" [Haley 1963, xii]

In this passage, there is a functional, somewhat ironic link being forged between scientists,

the industrialists, the financiers, and the lawyers that necessarily characterizes the

exploration, potential exploitation, and actual ordering of relations in colonial space,

historically, and in outer space during the Cold War period and after . While raised as a

brief and humorous anecdote, Haley does comment later that "Ever since Dr. von Karman

25
See, for example, Burch at 150-151 regarding the role of transatlantic trading companies.

28
made his kindly and humorous remark about space law, I have most seriously considered the

formulation of the rule of law for outer space" (Haley 1963, xv). His far-ranging text

bespeaks this serious consideration.

In marshaling the perspectives of others for justifying the interest, exploration, and

regulation of space, Haley cites from several scientists giving testimony to a U.S. Senate

Committee concerning the desire and need for a national space program. Expanding on the

instinctive, universal, and constitutive frontier drive mentioned by Johnson, Haley, and

others, Dr. Harold C. Urey (a friend of Dr. von Karman) presents a catalogue of the "innate

characteristic of human beings; namely, some curious drive to try to do what might be

thought to be impossible - to try to excel in one way or another - to try to do what has never

been done before" (xii). Urey goes on to list examples of this human characteristic: from

Homer's poems that show "the interest of the ancient Greeks in things of this sort" to "the

Portugese [sic] under Henry the Navigator [who] dared to go around Africa to India"; the

"enormous daring of Christopher Columbus crossing the Atlantic"; "the exploration of the

poles by Peary, Scott, and Amundsen, the flight of Lindbergh across the Atlantic, Byrd's

flight to the South Pole, and more recently the climbing of Everest"; as well as "the

spectacular flights of astronauts from the USSR and the United States about the earth" (Haley

xii-xiii). Urey compares these "drives [as] akin to other activities such as building the

Parthenon and the temples of the ancient world, the building of St. Peter's [...] at a time

when it represented great effort and sacrifice on the part of the people of these countries"

(Haley xiii).

Urey's catalogue of examples presents an episodic, but nonetheless straightforward,

forward-looking evolution in scientific and technological progress. His portrait of progress

29
also appears to be remarkably one-sided in attributing the active Northern/Western subjects

and passive objects or environments in sketching the career of an innate, universal human

characteristic . In this respect, there is a regular divide drawn between current political

awareness versus historical myths free of conflict or rife with erasure.

For instance, while Vice-President Johnson's foreword notes that the United States'

space program is "open to all nations" (Haley, vii), surrounding comments and circumstances

belie this assertion. Haley quotes the Senate testimony of the scientist Lloyd V. Berkner27,

who states that:

When we reach the stage of Martian landing, one can devoutly hope for an international
venture that can bring the scientists of the world together in solving the most challenging and
difficult scientific problems ever to be undertaken. But, the great bulk of the peoples of the
world have not yet acquired this particular brand of sophistication. They appreciate and share
our aspirations to reach to the stars, and find a satisfying excitement, now that this seems
almost within reach. This is the primitive instinct that has made man great. I cannot forget a
night in the Mideastern desert, when a native grasped my sleeve and pointed excitedly to the
sky, exclaiming: "Look, mister, look - American sputnik." You may argue that an American
Peace Corpsman might do more for this man as an individual; yet, lurking in the background,
is the realization that the Peace Corpsman may have no opportunity to function at all, if our
privilege to lead is eroded. Here lies an irreversible value judgment that only history can test.
Because of this very primitive and deep-seated instinct to conquer the unconquered, the space
race between the U.S. and the USSR is inevitable. [Berkner, qtd. in Haley 1963, xiv]

Berkner begins by contrasting the aspiration of "the scientists of the world together" with the

reality of "the great bulk of the peoples of the world" lacking the requisite technological

sophistication. However, the common thread of instinctive, universal exploratory desire

binds all humans, even 'natives' who exclaim excitedly over American artificial earth

satellites. In deploying the spectacle of an awed native in his Senate testimony, Berkner

makes several things clear: 1) the pursuit of the "very primitive and deep-seated instinct to

conquer the unconquered" by the sophisticated few grounds their "privilege to lead" the

See Christopher J. Preston, Grounding Knowledge: Environmental Philosophy, Epistemology, and Place
(Athens: University of Georgia Press, 2003) (regarding the construction of knowledge as exploitative of earth).
27
Among other things, Lloyd Berkner was Vice-President of CSAGI (organizing committee of IGY) and
President of International Council of Scientific Unions (ICSU).

30
unsophisticated masses; 2) the conquering instinct also naturalizes Cold War competition:

"the space race between the U.S. and the USSR is inevitable" (Haley 1963, xiv). Given this

inevitability, Berkner invokes the political and economic duopoly of the world and the stakes

of the space race:

Men everywhere see, in the conquest of space, the peaceful demonstration of the superiority
of one of the two competing systems of economic organization - capitalism versus
communism. The conquest of space has become a symbol of the challenge to each system to
demonstrate its superiority - to "put up" or shut up. Now, some may deplore this situation as
foolish, or un-gentlemanly, or costly, or unintellectual - but that's the way it is, and we had
better accept it if we want to retain our free system. The Russians recognize it with: first
sputnik; first hit on the Moon; first man in space; first photographs of the back side of the
Moon; first try (failed) to reach planets; first shot at Mars; and the heaviest payloads - all
spectaculars. (I would add, parenthetically, moreover, that it may be better for both sides to
shoot some dollars into space than to shoot them at each other.)" [Berkner, qtd. in Haley
1963, xiv-xv]

Of course, the battle of the -isms is invoked in order to facilitate funding and legislation for a

national space program, which could also displace terrestrial aggression: "(I would add,

parenthetically, moreover, that it may be better for both sides to shoot some dollars into

space than to shoot them at each other.)" (Berkner, qtd. in Haley 1963, xv) .

Paralleling Berkner, Haley also opines that "the benefits from the conquest of space

that are most easily grasped by the average man are probably the political benefits" (Haley

1963, 7) such that "prestige can only be enhanced by such a development" at a time when it

would be "an important and sought-after reward [...] particularly evident during periods such

as the present Cold War, when prestige is frequently more important than force in

international leadership" (Haley 1963, 7). In particularizing this prestige, Haley recognizes

Soviet accomplishments, but draws a distinction between the "notoriety for the first-in-time

See discussion below in Chapter Four regarding the community of law and science and Berkner's use of the
same anecdote for different purposes in Lloyd V. Berkner, "Science, The Scientist and Space" in Mortimer D.
Schwartz, Ed., Proceedings of the Conference on Space Science and Space Law (Fred B. Rothman & Co.:
South Hackensack, N.J., 1964) at 1-13 (for similar but expanded points with the same 'native' interest and the
needs to pursue the space race politically but also technologically (and the need for enforcement to accompany
law)).

31
achievement" versus the "intrinsic value of the contribution made by a particular space

accomplishment" (Haley 1963, 7). Haley writes that this latter form of prestige is important

and lasting because it contributes to human welfare and states that "many such rewards have

been earned by American space scientists" (Haley 1963, 7). In this way, he draws a

distinction between the likely fading spectacle of launching and orbiting the first satellite

versus more practical benefits like "giving the world an operative meteorological or

communications satellite system" (Haley 1963, 7). Thus, while keenly aware of the current

political climate, Haley locates an exit strategy whereby space flight "encourages closer ties

among nations" and also makes obvious the "impracticality of war" (perhaps due to the

likelihood or policy of mutually assured destruction) (Haley 1963, 7).

The encouragement of closer ties and the peace-creating nature of space flight is clear

for Haley: "space flight will tend to stress the fundamentally unifying characteristics of man

over local customs, history, and the place in which he is born" and thus rob regional

differences of their "devastating capability to arouse misunderstanding and hatred among

peoples" (Haley 1963, 8) . In addition to the peaceful dividends of a 'Cold War in space'

raised by Berkner, Haley predicts that it will also be a more efficient kind of struggle, given

that the immediate "material benefits of space will consist not so much of what we find there

as of the scientific and economic side-effects of the vast technological efforts required to get

Interestingly, in the year and up to the time of my writing, concerns and interest had been expressed in the
press about several related topics: fading U.S. dominance in space/launches (to Europe, India, China, Japan,
etc.), a failed satellite launch attempt by Iran, the first woman commander of the International Space Station
(ISS), competing anti-satellite (ASAT) weapons tests by China (sparking calls from India's military chief for
India's own military space program) and the U.S., Canadian universities competing in the U.S. to build a space
elevator, the use of planes/rockets by China to prevent a rainy ending to the Olympic games, the Phoenix
mission to Mars (which found compelling evidence of ice in the hope of pointing to the planet's habitability),
presidential candidate John McCain's desire to put a man on Mars (while stumping in Florida), and potential
uncertainty raised by NASA's retirement of the current space shuttle system in 2010 combined with the
unavailability of its new fleet until post-2013, leaving the U.S. with no way of accessing the ISS except through
Russian vehicles at a time of conflict due to Russian conflict in and with the U.S.-allied country of Georgia.

32
there in the first place" (Haley 1963, 3; original italics). Of course, the sought-after unifying

characteristics and/or healthier ideological competition in space (versus 'hot war' on Earth)

rely on the supposedly universal desire to explore frontiers that somehow guarantee or give

birth to freedom and peace on the back of new (space) technologies. As argued by John

Borrows and others with respect to Canadian law, the construction of colonial frontiers on

Earth and their legacies of dispossession provide an unstable foundation for future peace,

justice, and the fulfillment of law's promise(s)30. In addition, when noting the military

applications of space technology (e.g. hypersonic gliders for bombing and reconnaissance;

operating satelloids and satellites for reconnaissance; constant surveillance from space),

Haley states that:

... it is not strictly accurate in this connection to speak of space technology as finding military
applications, when so much of that technology was originally an offshoot of military
developments, in particular long-range missilery. Advanced military and space technology
overlap at so many points that they are to be distinguished mainly in terms of their objectives,
not their scientific basis or engineering characteristics. [Haley 1963, 8-9]

Early in the space law literature, Philip Jessup and Howard Taubenfeld reviewed the peace-

making capacities of un/inhabited spaces, but contemplated from a more pessimistic,

historical perspective in Controls for Outer Space. Reviewing various forms of international

organization and control, such as condominium, joint belligerent occupations, Spitsbergen,

trusteeships, those connected with the League of Nations or the UN (Danzig, the Saar,

Leticia, Trieste, Jerusalem, etc.), and other functional international institutions dealing with

communications, health, commodities, transport, and welfare, etc. (7), Jessup and Taubenfeld

conclude that such condominiums did not contribute to peace in the past within inhabited

areas, but might be more successful in uninhabited areas31.

30
See Borrows 2008 and Chapter Five, below.
31
P. Jessup & H. Taubenfeld, Controls for Outer Space and the Antarctic Analogy (New York: Columbia
University Press, 1959) [Jessup & Taubenfeld or Controls for Outer Space] at 267. Jessup and Taubenfeld also

33
 'Columbian' Space Law: Not Yet A Third (or Fourth) World Approach

Consequently, while Haley and others are alive to the conflicts of a perilous present

and the need for peace, they do not necessarily do equal justice to the violent past or

understand that one likely requires the other. Instead, when mobilized in support of opening

the space frontier, the past is either free of historical controversy or, where colonialism is

recognized, presented as a purely cautionary tale mute to colonial legacies and living

traditions. Noting the prior inadequate vision of society to the consequences of previous

discoveries, Haley illustrates his point by reaching back to the same point in history as Vice-

President Johnson:

When Columbus sailed from Spain nearly 500 years ago, he was seeking a shortcut to the
Indies, an objective that he signally failed to achieve. His expedition was nevertheless
justified in the eyes of his Spanish masters because it led to the discovery of Aztec and Inca
gold; and even this wholly unforeseen dividend was quite miniscule compared to his
discovery of an entire New World. Yet in Columbus' time, and for some 200 years thereafter,
the supreme importance of his explorations was consistently undervalued. There is a lesson in
this for us today who stand on the threshold of explorations that seem breathtaking and
almost, but not quite, beyond human achievement. (Haley 1963, 2)

In the above passage, Haley mentions Columbus' inadvertent 'discovery' of "Aztec and Inca

gold" and indeed an 'entire New World' as a lesson for contemporary readers to avoid

undervaluing and under-funding current activities in space. Indeed, and unlike other

commentators discussed elsewhere in this thesis, Haley does also raise the specter of

colonialism in a later passage. However, similar to the above strategic use of history, Haley

invokes colonialism as a cautionary tale that does not link violence to law so much as it calls

for better, but still similar, law:

In considering the anthropocentric law as applied to space we may well examine the function
of the surveyor's transit [...] to get our bearing. [...] Or, more in point, we should take a look
again at what happened to the Indians to forfend [sic] against galacticide; we must consider

note the folly of too much speculation (citing, e.g. the Papal Bulls dividing the so-called New World) and that
functionalism does not assume peace or render a new peaceful attitude in space (268).

34
 colonialism to make certain such practices are never permitted in space; and so on. We must
climb to a realistic and veracious plateau of evaluation. [Haley 1963,26]

Clearly, Haley was not blind to colonialism in space, but he remained blind to it insofar as he

refers to "what happened to the Indians" and 'galacticide' as though genocide and gold were

the only things worth mentioning in 196332 - as though 'Indians' only exist up to the point

that colonial powers achieved nominal border control, at which point they vanish within the

sovereign's black box.33

Inverted Golden Rule of Law in Space

In Chapter 12 of Space Law and Government ("Metalaw"), Haley writes that "the

regulatory scheme for outer space must take account of the possible existence of other

sapient forms" (Haley 1963, 395). He quickly states the core concept of what is put forward

as a new system of law for governing the relations following contact or encounters with

'sapient beings' in space or even on earth:

In Metalaw we deal with all frames of existence - with sapient beings different in kind. We
must do unto others as they would have done unto them. To treat others as we would
desire to be treated might well mean their destruction. We must treat them as they desire to
be treated. This is the simply expressed but vastly significant premise of Metalaw. [Haley
1963, 395; emphasis added]

Contrasting with the previous centuries of human civilization and law, Haley emphasizes the

novelty of his formulation of the traditional "Golden Rule", which he partly explains as

In reviewing these texts, I try (without always succeeding), to follow Barbara Hernstein Smith's advice and
abide by "the general principles and practices of intellectual fairness that are acknowledged in principle, if not
always in practice, in the academic, journalistic, and broader intellectual communities to which this book is
addressed: at the minimum, accurate citation, representative quotation, non-tendentious summary, and
forbearance from name-calling and motive-mongering" (B.H. Smith, Belief and Resistance at Preface, xix).
3
Writing about the contrasts between 'earth-bound' and space sovereignty and a hopeful future, Haley notes
that: "We are experiencing now some of the errors brought about by the improper planning of our forefathers.
The colonial system has proved unworkable, and experience, therefore, teaches us to have more vision in our
new conquests." (Haley 1963,133). While advocating for an international treaty, UN control, or control
through some other world body, Haley hopes that such a common goal might end the cold war and redirect
funds and energy from military use to space exploration. Haley acknowledges the dreaminess of his aspiration,
but concludes that it is "not so much more fantastic than the starry-eyed dreams of our greatest scientists who
talked in times past of the possibility of flight or the harnessing of atomic power. [...] Advancement in
technology could well be the necessity that will mother the invention of a one-world mentality" (Haley 1963,
133-134; emphasis added). For further discussion on this mentality, see Chapters Four and Five, below.

35
"probably due to some inherent necessity in our civilization to relate all law to oneself

(Haley 1963, 395)34. After introducing his relatively brief inverted golden rule of law for

outer space, Haley discusses his own speculations about the future ethics and evolutionary

potential of humans, some scientific possibilities and mathematical estimates of life on other

planets (e.g. the Drake equation)35, and Professor Carl Sagan's notion of "relativistic

interstellar flight" requiring the containment of anti-matter and based on the theoretical

concept of time dilation (derived from Einstein's relativity) for traversing hundreds of light

years (Haley 1963, 395-403)36.

One particular development also worth mentioning is Haley's recognition that the

National Aeronautics and Space Administration (NASA) "is doing perhaps more than any

other organization, federal or otherwise, in preparing for an eventual encounter, planned or

otherwise, with extraterrestrial life" through investigations into the science of space

exploration in relatively old (environmental biology; physiological and behavioral sciences)

and new (bioengineering; exobiology [now: astrobiology]) fields (Haley 1963, 403). In

reviewing some of the pertinent questions for NASA and other scientists with respect to the

See also: Jouni Reinkikainen, "The Golden Rule and the Requirement of Universalizability" (2005) 39 The
Journal of Value Inquiry 155-168 (noting the use of the rule by Hobbes; criticism of it by Kant; and arguing for
compatibility of golden rule with Kantian and post-Kantian universalizability requirements, due to emphasis on
common points of publicity, acceptability, and reversibility). As noted below, Vitoria also utilizes the rule to
bolster his arguments.
35
"The [Drake, 1961] equation is usually written: N = R* • fp • ne • fl • fi • fc • L. Where, N = The number of
civilizations in The Milky Way Galaxy whose electromagnetic emissions are detectable. R* =The rate of
formation of stars suitable for the development of intelligent life, fp = The fraction of those stars with planetary
systems, ne = The number of planets, per solar system, with an environment suitable for life, fl = The fraction
of suitable planets on which life actually appears, fi = The fraction of life bearing planets on which intelligent
life emerges, fc = The fraction of civilizations that develop a technology that releases detectable signs of their
existence into space. L = The length of time such civilizations release detectable signals into space." See SETI
website (online: http://www.seti.org/seti/seti-science/: emphasis added). The anthropological hook (and
interdisciplinary, in drawing on both the natural and social sciences) emerges through fc (e.g., Dick 2006).
36
Haley also explains the genesis of the term/concept of metalaw: "The author was led to the formulation of the
Rule of Metalaw, "We must do unto others as they would have done unto them," following a discussion in
Brussels in September 1956, with Dr. Frank J. Malina, founder and wartime director of Jet Propulsion
Laboratory at the California Institute of Technology, who had remembered a conversation with Dr. Merle A.
Tuve, Director of the Department of Terrestrial Magnetism of the Carnegie Institution, during which they
considered an alternate formulation of the anthropocentric Golden Rule" (395, note 1).

36
stresses of future space travel (e.g. weightlessness and sustained acceleration stress) , Haley

makes some interesting observations:

Such stresses are only the beginning. Also to be reckoned with are the physiological patterns
of the basic deprivation states. Thirst hunger, fatigue, deprivation of sleep - all will have to
be studies in order to formulate an objective description of man's response patterns of such
stresses and their relief. Then, too, there are the physiological factors. How will man react to
periods of extremely long confinement in a small compartment? What will the personal
relationships among the members of a crew be like during such confinement? How will such
confinement affect the crew's performance? [...] Neither has NASA up to now had to contend
with the effects of radiation on a space traveler [... it] will have to deal with the problem of
shielding its astronauts from radiation form the sun, the stars, the Van Allen belts, and,
perhaps, from nuclear reactor power systems. [Haley 1963,404-405]38

Ultimately, Haley returns to his discussion of 'metalaw' by stating that his review of

NASA's efforts, and the natural sciences regarding terrestrial and "cosmic" life generally,

"afford a reasonable and even urgent basis for parallel efforts within the scope of the social

sciences" (Haley 1963, 409).

For example, see: George S. Robinson, "Space Law for Humankind, Transhumans and Post humans - Is
There a Need for a Unique Theory of Natural Law Principles?" (2008) Vol. 33 Annals ofAir and Space Law
(Montreal: McGill University Press, 2008) [Robinson 2008]; George S. Robinson & Harold M. White, Jr.,
Envoys of Mankind: A Declaration of First Principles for the Governance of Space Societies, prologue by G.
Roddenberry (Smithsonian Institution Press: Washington, D.C., 1986) [Robinson 1986/Envoys of Mankind] at
46-47 (dual military-civilian use). The title of Robinson and White's book is taken from the OST, Article V
("States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to
them all possible assistance in the event of accident, distress, or emergency landing..."). Provocatively, the
authors ask: envoys to whom?
38
On another reading, the questions sometimes resemble some of the problems facing indigenous peoples in the
United States and Canada, at least, earlier invoked by Haley to avoid 'galacticide' (and without the
voluntariness characterizing astronaut and researcher experience). Stemming from dispossession, assimilation
strategies, ethnocide, and reserves/reservations, these problems include: deprivation, hunger, fatigue, and
suicide due to relocation, segregation, residential schooling and 'industrial training', and nuclear and other
waste dumping on Aboriginal lands (see, e.g., Anna Stanley, "Risk, Scale and Exclusion in Canadian Nuclear
Fuel Waste Management" (2006) 4 ACME: An International E-Journalfor Critical Geographies 2 at 194-227;
A. Stanley, "Citizenship and the production of landscape and knowledge in contemporary Canadian nuclear fuel
waste management" (2008) 52 The Canadian Geographer 1 at 64—82; Randel D. Hanson, "Indian Burial
Grounds for Nuclear Waste" (Sept. 1995) 16 The Multinational Monitor 9). Regarding the prevalence of
aboveground nuclear testing at the time and at least until the Limited Test Ban Treaty in 1963, see online:
www.epa.gov/rpdwebOO/rert/nuclearblast.html) ("Between 1945 and 1963, hundreds of above-ground blasts
took place around the world."). Regarding the Antarctic/space analogy, see Peter Suedfeld and Karine Weiss,
"Antarctica: Natural Laboratory and Space Analogue for Psychological Research" (2000) 32 Environment and
Behavior 7; D.T. Anderson et al., "An Antarctic Research Outpost as a Model for Planetary Exploration" (1990)
43 Journal of The British Interplanetary Society 499-504; Klaus Dodds, "The Great Game in Antarctica: Britain
and the 1959 Antarctic Treaty" (2007) Contemporary British History.

37
 In fleshing out the bare frame of metalaw's inverted Golden Rule, Haley assembles a

suitable history for his concept. He states that it "has been examined by philosophers,

ethicists, and jurists in its essence and without the conscious knowledge of the definitive

label 'metalaw'" (Haley 1963, 409). Interestingly enough, one of the first examples

deployed by Haley in support of metalaw is a 1963 address by then-Chief Justice of the

United States (Supreme Court), Earl Warren, to the Georgia Institute of Technology (Haley

1963, 410). Haley discusses this address earlier in his book as well. Chief Justice Warren's

address purportedly concerns the "gap between the social and physical sciences" and the

"simple fact [...] that law has not kept abreast of science" (Haley 1963,14)39. For Warren,

and Haley seems to agree, the answer arises not in putting "a restraining hand on science" but

instead ordering the world "under the law [to] contain and resist the pressures to employ

scientific knowledge for destructive purposes" (Haley 1963, 14). In order to guide science in

this fashion, Warren states that it "must be given a peaceful setting in both domestic and

world law" (Haley 1963, 14). Haley constructs a way out of the traditional slow-moving

approach to law and the problems thrown up by ex-post-crisis regulation:

The way out according to the Chief Justice, is for the law to keep pace with science. His
words are in keeping with great publicists, such as John Cobb Cooper, who have spoken in a
similar vein. 'There is no reason,' Warren states, 'why we cannot make legal research
accomplish the same function as scientific research.' This means that the law should no
longer wait to be stirred by crises. It should, in other words, look to the future. And as the
future beckons man into outer space, man must look there too for the rule of law." (Haley 15)

Note that Warren's presence on the campus as an invited speaker on the year-long celebration of the G.I.T.'s
75th anniversary was accompanied by protests and complaint letters: "Georgia Tech celebrated its 75th
anniversary in 1961 with many scheduled events and speakers. Correspondence, including letters of
congratulations, relating to this can be found I Box 32, Folders 9-10 and Box 33, Folders 1-2. The most
controversial speaker to appear was Chief Justice Earl Warren. His Supreme Court had ruled in 1954 that
separate public facilities were not equal, thus paving die way for integration. Many voiced their disapproval to
Harrison on inviting him to speak. These letters are housed in Box 33, Folder 3." (Inventory of the President
Edwin Harrison (1916-2001) Papers, 1930-1968 [bulk 1957-1965]; accessed online:
http://www.library.gatech.edu/archives/finding-aids/displav/xsl/UA003).

38
In this way, Haley attempts to justify not just the extension of the rule of anthropocentric law

into space, but also lays the groundwork for metalaw in his most theoretical discussions.

Having noted that the law has not kept pace with science in this arena, Chief Justice Warren

goes on to state that it "is not that science is running away and endangering civilization" but

that the "real danger lies in the lack of a lawful world [...] which will negate the pressures to

use scientific knowledge for destructive" purposes (Haley 1963, 410). Also citing

Ambassador Manfred Lachs (then-Chairman of the UN Legal Subcommittee on the Peaceful

Uses of Outer Space) for the "necessity for a rule of law governing all creation" (Haley 1963,

411), Haley states that his earlier discussion in the first chapter showed how "past maxims

and interpretations of anthropocentric law pointed clearly to the elementary rule that man

should do unto others as he would have them do unto him" (Haley 1963, 411). Haley

questions whether this "basic tenet", golden rule, or "primary principle of a system of laws

created by man for man" is sufficient for the regulation of the universe (Haley 1963, 411).

Not surprisingly, Haley concludes that the anthropocentric golden rule is no longer sufficient.

While theorizing about non-anthropocentric law and legal relations, as radical,

speculative, and purportedly outlandish as his discussion is sometimes made out to be (e.g.

Beebe), Haley does not explode the distinction beyond intelligent life to encompass the

environment and non-intelligent life. One potential example of such wider non-

anthropocentric legal theory emerges through indigenous legal traditions/theory (ILTT), a

Fourth World perspective, & ecological/cosmocentric approaches to the law. Of course, my

acquisition of only those points or parts of ILTT most relevant to the gaps constructed from

ETI legal theory presents an inevitably uneasy purchase. I discuss this problem in greater

39
detail in Chapter Five and my Conclusion below40. For now, it is important to examine how

Haley grounds and fleshes out the inverted golden rule of metalaw.

Grounding the Inversion

In demonstrating its insufficiency, he surveys and constructs a catalogue of

philosophical and religious thinkers and maxims on the golden rule (or variations thereof):

Aristotle, "We should behave to friends as we would wish friends to behave to us"; the
Babylonian Talmud, "What is hateful thyself do not unto thy neighbor"; Epictetus, "therefore
if anyone would take these two words to hear and use them for his own guidance, he will be
almost without sin. These two words are bear and forbear"; the New Testament, "Therefore
all things whatsoever ye would that men should do to you, do y even so to them: for this is the
law and the prophets"; Seneca, "You must expect to be treated by others as you yourself have
treated them"; Ahikar, "According as I do to you so also to me"; Abdullah Ansari, "Treat
others as thou wouldst be treated, dispense not to others what thou likest not for thyself;
Bidpai, "Men are used as they use others"; Mohammed, "Do good unto others as god has
done unto thee"; Sadi, "Accept for thyself what thou wouldst accept for others"; Confucius,
"What I do not wish others to do unto me, that also I wish not to do unto them"; Mahabharata,
"This is the sum of all true righteousness; deal with odiers as thou wouldst thyself be dealt by.
Do nought to others which if done to thee, would cause thee pain"; Sutra-Kritanga, "A man
should treat all living creatures as he himself would be treated"; Rabbi Hillel, "Whatsoever is
hateful unto thee, do it not unto thy neighbor. This is the whole of the Torah, the rest is but
commentary." Thus it will be seen that all of the precepts of the great law-givers, even that of
the heterodox Hindu religion of Jainism, are, in each case, starkly anthropocentric. [Haley
1963,411-412]

This lengthy catalogue precedes Haley's citation of one of his space and metalaw colleagues,

Dr. Welf Heinrich Prince of Hanover, who concluded that "our legal concepts must be as

absolutely just as the concept of Kant's categorical imperative" (Haley 1963, 412)41. While

not specifically commenting on the merits of attempting to treat humanity universally and

only as an end, Haley does trace another historical evolution, but simultaneous core

maintenance, of the career of the law from the "bleak beginnings of human civilization" and

the "set of ground rules" laid down by Hammurabi and Moses (Haley 1963,412). He

contrasts these efforts to the insistence "by certain writers of positivistic orientation that any

See also: V.F. Cordova, "Ecolndian: A Response to J. Baird Callicott" (1997) 1 Ayaangwaamizin:
International Journal of Indigenous Philosophy 1 at 31-44, cited in Preston, Grounding Knowledge.
See Ernst Fasan's Relations below. The Prince of Hanover wrote the first doctor of laws thesis on space law
in 1953 (N. Jasenruliyana, International Space Law (1999) at 5).

40
discussion of a law of space must be posited on the premise" of only one applicable law

"based upon exact legal science" (Haley 1963,412). In tracing the universal

anthropocentrism of the golden rule up through to its supposed failure among men on Earth

in the positivist incarnation, Haley rejects the "attempt [...] to enshrine the positivistic

concepts of existing national and international law which have been the scourge of

civilization" (Haley 1963, 412-413).

Interestingly, Haley sees a direct correlation between modern, positivistic

international law and the "traditional concepts of enforcement" that have seeped deep into

the bones of the international legal architecture. He clearly rejects the "tried and true" means

of preserving order through sanction by force: "The use of humanly organized force against

other human beings, either as individuals or as integrated societies, no matter how small or

how large such societies may be, has colored all our thinking" (Haley 1963, 413). He further

rejects the calls by "eminent publicists" to utilize modern international law as "the basis for

space law" as "explicitly reflected in the December 1961 resolution of the United Nations"

(Haley 1963, 413)42. Rather than extend the broken, coercive, violent system into space in a

way that would not require "respect for the whole integrity of other sapient beings," Haley

instead believes that "no concepts of human law, civil or criminal, which in any manner

whatsoever are framed for the purpose of being enforced [...] should be projected for the

government of intelligent beings who dwell elsewhere in the cosmos" (Haley 1963, 413;

emphasis in original). The sole potential exception to this principle provided by Haley would

be if "we may find another world and another intelligent race identical with ours" (413).

Otherwise, at least for Haley, force never seems to be an option in outer space relations.

42
For a close reading/examination of the space treaties, see Bess CM. Reijnen, The United Nations Space
Treaties Analyzed(Editions Frontieres: Gif-sur-Yvette, France, 1992).

41
 Against similitude, Haley espouses an approach that assumes "intelligent beings" that

are different from us and live in different environments (Haley 1963, 413). As with everyone

writing on the topic of potential ETI and legal relations following contact/encounter, Haley

notes the great room opened for "juridical speculation" by his propositions. However, he

finds the following particularization of the inverted golden rule (metalaw) to be enough:

... it is sufficient at this time to establish the simple proposition that we must forego any
thought of enforcing our legal concepts on other intelligent beings in the manner we have on
the American Indians, i.e., on the theory that they could not withstand our force. Quite apart
from all considerations of altruism, we must bear in mind the hapless possibility that the
situation might be reversed, and we may turn out to be the savages who are decimated and
enslaved. [Haley 413]

In this statement, as pointed out above, Haley's use of history is inaccurate. Although he

attempts to speak truth to the power of legal reasoning (enforcement), his characterization

erases the history of assistance, trade, alliances, and the role of natural, proto-international,

and early USSC jurisprudence that belie the simple theory "that they could not withstand our

force" . For Haley, given the difference in kind between humans and intelligent space

beings, any use of force would be destructive and thus completely prohibited (Haley 1963,

413). His fear was the potential discovery of such life combined with a lack of "prior

thought" such that humans would proceed with "no rule or guide, or simply [extend] existing

rules, which we have seen to be a woefully inadequate provision" (Haley 1963, 413-414).

Analogizing from human psychosocial development and evolution, Haley hypothesizes that

on other planets "the emergent race will give expression, just as on earth, to the eternal

yearnings to explore the mother universe" (Haley 1963, 414). Demonstrating the kind of

humility critiqued by Beebe as a type of rhetorical Trojan horse for law's empire, Haley (and

MLV, and Fasan, etc.) warns that "man cannot in arrogant disregard for such forms [of

intelligent life] proceed into space without a guiding standard of conduct, or principle of
43
See discussion (and accompanying footnotes) in Chapter Four below.

42
behavior" (Haley 1963, 414). Despite his own analogizing, Haley emphasizes the novelty of

it all, such that the "framework of existing terrestrial law will not suffice in space: analogies,

carryovers, carrybacks, and extensions will never fulfill the need" (Haley 1963,414). The

only "principle of human law" that Haley is confident to project into space and his notion of

metalaw is "the stark concept of absolute equity" (Haley 1963, 414). Haley believes that this

concept leaves humans more open "to face the possibility of an indefinite number of natures

and, therefore, of an indefinite number of frameworks of natural laws" (Haley 1963, 414).

Whether we humans can restrain ourselves and hold our philosophies of law in abeyance

seems rather unlikely.

In the above respects, there is a strange tension throughout Haley's speculative

discussion on metalaw, which implicates his general philosophy of law and depicts his

preference for natural law over positivist law. While Haley seems to prefer the principled,

universalist natural law approach, he also simultaneously warns against repeating the 'sins'

of the colonial past, which are somehow divorced from the enforcement characterizing

modern international law's positivist, Cold War present. Indeed, in citing with approval a

letter of the "great American pioneer in the law of aeronautics and astronautics, Professor

John Cobb Cooper" (also the first head of the McGill Institute for Air & Space Law), Haley

further demonstrates this tension. Cooper responds to a letter in the Journal of the British

Interplanetary Society about the lack of legal analysis on the effects of encountering ETI:

'May I add on my own account,' Professor Cooper continues, 'that I have had occasion to
give a great deal of thought to various phases of the problem of the rule of law in outer space.
It is obvious that we must first have some understanding as to what we mean by the term law.
If it is a rule depending on the consent of the governed, then how is such consent to be arrived
at so far as intelligent beings are concerned who may be discovered on celestial bodies. If law
is considered as a rule imposed by an authority which has the power to enforce sanction, then
what authority shall we look to as the basis for an enforceable rule applicable at the same time
to the inhabitants of celestial bodies and of the Earth?' [Cooper qtd. in Haley 1963, 416-417;
original italics]

43
Noting this general philosophical problem concerning the constituent or equivalent bases for

extending the rule of law, both Cooper and Haley strike upon the central dilemma of

international law and Law generally. Akin to Haley's invocation of "American Indians" and

their supposedly sealed fate (as well as his heroification of Vitoria in natural law and colonial

history), Cooper raises similar points in seeking to salvage the rule of law:

'Mr. Wright, in his letter referred to above, says that "at all costs, we must avoid a repeat of
what happened to the native civilizations of Mexico and Peru in the sixteenth century." While
agreeing in substance with Mr. Wright, I [Cooper] would at the same time point out that the
greatest humanist living in that era, Francisco de Vitoria, did not approve the position taken
by the powerful king of his native Spain as evidenced in the classical lecture on "De Indis et
de Ivre Belli Relectiones." It was there that the courageous jurist stated to his students at the
University of Salamanca about 1532 that, "the Aborigines undoubtedly had true dominion in
both public and private matters, just like Christians, and that neither their princes nor private
persons could be despoiled of their property on the ground of not being true owners.'"
[Haley 417; emphasis added]

Again, the utilization of history and, in particular, legal history in Cooper's argument is more

unsettling than was perhaps intended by its author or Haley's own reference of it.

Specifically, whether Vitoria was the greatest living humanist at the time44, the true dominion

that he advocated with respect to the 'Aborigines' of the so-called New World, such that both

princes and private persons were true owners, fails to consider the ways that they "could be

despoiled of their property" on other grounds (e.g. failed hospitality, non-reciprocity, trade

rights/spheres of influence, etc.). A close reading of Vitoria's statements in combination

Bartolome de las Casas is another nominee (who actually lived in the Caribbean, unlike Vitoria and others).
See, e.g., A Brief Account of the Destruction of the Indies [Or, a faithful Narrative of the Horrid and
Unexampled Massacres, Butcheries, and all manner of Cruelties, that Hell and Malice could invent, committed
by the Popish Spanish Party on the inhabitants of West-India, Together With the Devastations of several
Kingdoms in America by Fire and Sword, for the space of Forty and Two Years, from the time of its first
Discovery by them], transl. of Brevisima relacion de la destruccion de las Indias (1542). See also Kenneth J.
Pennington, Jr., "Bartolome de Las Casas and the Tradition of Medieval Law" (Jun., 1970) 39 Church History 2
at 149-161 (outlining las Casas' extensive legacy, the canonist tradition preceding and informing his many
works, his famous legal-theological debate at Valladolid with Sepulveda (ordered by King Charles V of Spain)
on Spanish slavery and title in the 'New World', and the particular application and juridical articulation of legal
theory pointing to a proto-international law).

44
with the history attending and following such jurisprudence raises doubts about the utility of

his arguments to indigenous peoples at the time or subsequently45.

Haley does not explicitly address this tension in his metalaw speculations. Instead,

akin to most other authors on the topic (such as Fasan and even the seemingly reluctant

'positivist' ones such as McDougal, Lasswell, et al.), Haley inevitably postulates certain core

attribute assumptions that unavoidably shape the rough sub-principles of metalaw. For

instance, and despite his earlier insistence on assuming different natures in different

environments (see above at Haley 1963,413-414), he helpfully assumes that the

extraterrestrial beings are: 1) composed of the same known elementary substances as

humans; 2) capable of "sensation, locomotion, and thought" (417); and 3) of a certain

size/weight allowing an "estimate [of] the size of the sphere surrounding each individual that

may be called his zone of sensitivity" (418). From these assumptions, and in addition to the

inverted golden rule and the principles of non-enforcement and absolute equity, Haley further

notes that the rule should be "that space outside an individual's zone of sensitivity is free

space to which the traditional freedom of the seas may apply" (418). As well, Haley

extrapolates another rule similar in kind to the 'zone of sensitivity' and with an eye towards

the potential negative effects of human space exploration:

... in any instance where there is reason to believe life exists on a planet, no terrestrial space
ship may land without having satisfactorily ascertained that the landing and contact will injure
neither the explorer nor the explored, and until the ship has been invited to land. 'But!' the

See: Fr. W. von Rauchhaupt "A Light from the Past to Show Up the Legal Problems of Our Age of Space" in
Haley & Heinrich, Eds., First Colloquium on the Law of Outer Space (The Hague: Springer-Verlag, 1958)
[First Colloquium] at Introduction, 1 -4 (likening the situation of space age jurists to that of natural law jurists
(Victoria's Dominicans, Suarez's Jesuits, and Grotius) dealing with the "discovery of America and the
redemption of many heathen souls" (3)). As a partial response to this rhyme scheme, see discussion in Chapters
Four and Five below, as well as in Anthony Anghie, Imperialism, Sovereignty and the Making of International
Law (Cambridge University Press: 2004) [Anghie]. See also: B. Arneil, "John Locke, Natural Law and
Colonialism" (Winter 1992) XIII History Of Political Thought 4; Elena Cirkovic, "Self-Determination and
Indigenous Peoples in International Law" (2007) 31 Am. Indian L. Rev. 375 (Symposium issue on "Theoretical
Approaches to International Indigenous Rights").

45
 impatient one may say, 'this is like a requirement that man must make intelligible
communication with an amoeba!' The answer is, nevertheless, that the regulation must be
adhered to without exception, or we will project into space the bleak and devastating
geocentric crimes of mankind. The regulation is so necessary that it would be better to
deprive mankind of the opportunity to explore the cosmos, or indeed to leave the planet Earth.
[Haley 1963,418-419]

Haley's strong feelings on the need for invitation and the desire to avoid doing harm are

admirable. However, the natural law principles animating Haley's concerns are more

disturbing insofar as neither their formal existence nor their faithful exercise were,

historically, any guarantee of avoiding the "devastating geocentric crimes of mankind" (e.g.

the use of unfulfilled reciprocity as an excuse for entry and occupation). As well, the

assumptions made by Haley and others make another critical epistemological move: they

forestall his appreciation of the environment and non-intelligent life as valuable/valued legal

subjects worthy of recognition and integrity in their own rights (thus precluding certain

indigenous and alternative worldviews as well, discussed below) .

Anthony Anghie skewers the promise of natural law in his criticism of the otherwise-

lauded ('protector of native peoples') Francisco Vitoria's arguments against the "universal

system of divine law administered by the Pope" to a "universal natural law system of jus

gentium whose rules may be ascertained by the use of reason" (20). Anghie outlines how,

under jus gentium, the Spanish have a right to travel and sojourn in Indian lands such that

they cannot be prevented as long as they do no harm (20). Anghie argues that the equality

and reciprocity of this system serves as a means for penetrating Indian lands and territory

As well, from the beginning of human activities in outer space, non-human animals were sent as test flight
subjects into orbit (e.g. Laika, the first dog in space; chimpanzees, etc.). See also: W. Kole, "Court won't
declare chimp a person." Associated Press (Sept. 27,2007); K. Connolly, "Court to rule if chimp has human
rights", Guardian Observer (Apr. 1, 2007); "Animal Law and Policy" (Winter 2007) 70 Law and Contemporary
Problems 1-325; W. Hsiung & C. Sunstein, "Symposium: Responses to Global Warming: The Law, Economics,
and Science of Climate Change: Climate Change and Animals" (June 2007) 155 U. Pa. L. Rev. 1695; Cass
Sunstein, "The Rights of Animals" (Winter 2003) 70 U. Chi. L. Rev. 387; Jacques Derrida, "The Animal That
Therefore I Am (More to Follow)," trans. D. Wills, (2001) 28 Critical Inquiry 2 at 369-418; S. Akhtar & V.D.
Volkan, eds., Mental Zoo: Animals in the Human Mind and its Pathology (Madison, CT: International
Universities Press, 2005).

46
where the failure to give friendly hearing or innocent passage, or resistance to proselytizing,

would lead to just cause for war (23-24). For example, in part citing the traditional golden

rule, Vitoria states:

Also, thirdly, the sovereign of the Indians is bound by the law of nature to love the Spaniards.
Therefore the Indians may not causelessly prevent the Spaniards from making their profit
where this can be done without injury to themselves. A fourth reason is that such conduct
would be against the proverb: "Thou shall not do to another what thou wouldest not wish done
to thyself." [...] But when the Indians deny the Spaniards their rights under the law of nations
they do them a wrong. Therefore, if it be necessary, in order to preserve their right, that they
should go to war, they may lawfully do so. [...] Accordingly, the Spaniards ought to defend
themselves, but so far as possible with the least damage to the natives, die war being a purely
defensive one. [...]

Seventh proposition: If, after the Spaniards have used all diligence, both in deed and in word,
to show that nothing will come from them to interfere with the peace and well-being of the
aborigines, the latter nevertheless persist in their hostility and do their best to destroy the
Spaniards, then they can make war on die Indians, no longer as on innocent folk, but as
against forsworn enemies, and may enforce against them all the rights of war, despoiling them
of their goods, reducing them to captivity, deposing their former lords and setting up new
ones, yet withal with observance of proportion as regards the nature of the circumstances and
of the wrongs done to them."47

Obviously, while Haley does not extend from his arguments to the justifications pursued by

Vitoria, it is not difficult to see how justifications could be made on the basis of perceived or

attributed 'equality' or reciprocity (or threat or interference) .

Franciscus de Victoria, De Indis et De Ivre Belli Relectiones, Ernest Nys, Ed., transl. J.P. Bate (1532) (online:
www.constitution.org/victoria/victoria.htm). See also: James Muldoon, "Discovery, Grant, Charter, Conquest,
or Purchase: John Adams on the Legal Basis for English Possession of North America," in Tomlins & Mann,
ed., The Many Legalities of Early America (2001) at 37, 40-46.
48
Ernst Fasan's fifth rule of metalaw could be especially susceptible, where the preservation of the human
species might purportedly be at risk (as with the Spanish trade and missionary activities defended by Vitoria):
"The principle of preserving one race has priority over the development of the other race." Austrian attorney
(and a founding member of the International Institute of Space Law) Ernst Fasan expands upon Haley's
Metalaw ("who during the last year of his life advised [Fasan] to carry out the studies which have led to this
publication" (10)), but built upon, among others, Immanuel Kant's Categorical Imperative. In formulating his
own Metalaw, Fasan sets five characteristics/conditions and eleven rules in Relations with Alien Intelligences:
the Scientific Basis of Metalaw (Verlag: Berlin, 1970). Former Nazi scientist, adopted by the U.S. post-WWII
(see, among others, McDougall's account in Heavens & the Earth), developer of the V-2 and designer of the
first successful U.S. satellite launch (Explorer), Wernher von Braun writes the foreword, which censures the
presumptuousness of men to assume they were "the only manifestation of intelligent life" (7). Fasan notes that
"Metalaw will be a rule of conduct for intelligent beings. Thus, the Categorical Imperative will apply. Metalaw
will be, furthermore, a natural law based on those natural characteristics which are necessarily common to all
partners" (7). Fasan's five characteristics are: 1) Life, 2) Intelligence, 3) Detectability, 4) Three-
dimensionality, and 5) the Will to Live. Fasan's eleven rules of metalaw are: 1. Any act which causes damage
to another race must be avoided; 2. Every race has the right to defend itself against every harmful act
perpetrated by another race; 3. All intelligent races of the universe have, in principle, equal rights and values; 4.
 In summary, Haley seems to put forward the following framework of guiding

principles for his metalaw system:

1) the inverted golden rule of doing unto others as they would have done unto them;

2) the anti-positivist principle of non-enforcement;

3) the principle of absolute equity;

4) the sovereignty of individual, varying zones of sensitivity; and,

5) the prohibition on space travel or exploration without, first, ascertaining that

landing and contact will not result in injury to any party and, second, being
invited, with respect to planets where there is a reason to believe life exists.

Aside from the not-yet existing need for metalaw's direct application, Haley also foresaw

indirect benefits from such speculation, such that "as a by-product of these studies our own

anthropocentric law undoubtedly will be improved" (Haley 1963, 420). Notwithstanding its

paradoxical nature, Haley prohibits the regression of metalaw to terrestrial thinking: "the

eventual structure of metalaw must not be allowed to reorient itself on anthropocentric or

geocentric bases" given his desire to "discourage the narrow and fruitless intellectual

exercises that would proceed from the mere extension of our own systems of law" (Haley

1963, 420). Haley concludes his speculations by briefly addressing and setting aside the

problem of hierarchy and evil in space, such that we would solely protect ourselves from the

inferior, expect wise tolerance from the fearless superior, and potential conflict with beings

Every partner of Metalaw has the right of self-determination; 5. The principle of preserving one race has
priority over the development of the other race; 6. It is not a legal, but an ethical principle that one race should
help the other by its own activities; 7. In case of damage the injurer must restore the integrity of the injured
party; 8. No partner of Metalaw may demand an impossibility; 9. No rule of Metalaw has to be complied with
when compliance would result in practical suicide for the obligated race; 10. Metalegal agreement and treaties
must be kept; 11. Every race has a title to its own living space. (62-69).
See also Modesto Seara Vazquez, Cosmic International Law (transl. Elaine Malley) (Detroit: Wayne State
University Press, 1965). Among other things, Vazquez adopts and translates Clausewitz's formulation ('politics
by other means') to the space law context and speculates on ETI as Men, non-Men, & ET nations (237-243)
with the potential for allowing for the colonization of aliens, but in an enlightened, superior form of UN-type
tutelage depending on their stage of development and force (239).

48
comparable "in their level of technical achievement and in their moral qualities (or lack

thereof)" (Haley 1963, 420). Here Haley again invokes humility insofar as he claims no right

to assume evil, but instead emphasizes the need "first and foremost, to make sure that our

human law is unconditioned and absolute in our control of the relationships of our own kind

with all others. We must not set out to conquer - if we do, we may find ourselves not the

triumphant perpetrators of oppression, but the prisoners of the just" (Haley 1963, 420-421).

Notwithstanding all of these metalaw concerns, Haley's final observation focuses on the

"urgent need for our legal structure to keep pace with our technical progress in the

penetration of space" where anthropocentric law could suffice in the "early stages" (Haley

1963, 421). While using a strikingly different method than McDougal, Lasswell, and Vlasic,

Haley reaches similar 'policy' conclusions to MLV and suggests a similar community

between law and science that can or does lead to the exclusion of the usual Third and Fourth

World suspects/subjects. Given the voluminous nature of MLV's work, these conclusions

are explored at great length in the next chapter (Three) before I turn to the First and Third

World communities of law and science, including the IGY and the Bogota Declaration

(Chapter Four), and Fourth World, indigenous legal theory and traditions (Chapter Five).

49
CHAPTER THREE - ADVANCED FORMS OF NON-EARTH LIFE

McDougal, Lasswell, & Vlasic on the Virtues of Speculation

In Law and Public Order in Space, jointly authored by Myres S. McDougal, Harold

D. Lasswell, and Ivan A. Vlasic (MLV), the authors devote an entire chapter to the topic of

advanced forms of non-earth life49. Similar in many respects to Lasswell's contribution at

the Fourth Colloquium on the Law of Outer Space, this chapter provides ample discussion of

theoretical legal approaches to ETI life from the perspective of the policy-oriented,

sociological jurisprudence cultivated throughout McDougal et al.'s tome50.

In chapter nine, "Potential Interaction with Advanced Forms of Non-Earth Life,"

McDougal et al. begin by directly acknowledging the "more speculative" nature of their

analysis (McDougal et al. 1963, 974). However, noting the views of leading astronomers

concerning the existence of life in the universe, the authors state that "since so many

competent scientists do not regard the existence of advanced forms of life as out of the

question, prudence demands that we reckon this contingency" (MLV 974). As a warning

against the failure to anticipate novel events in advance, the authors make one specific and

one general point. Initially, they point to the atomic bombs dropped on Japan and their

feeling that it "should not have been beyond the wit of man to devise a convincing

demonstration by other means than sacrificing the inhabitants of Hiroshima and Nagasaki"

49
M.S. McDougal, H.D. Lasswell, & LA. Vlasic, Law and Public Order in Space (New Haven: Yale University
Press, 1963) [McDougal et al. 1963 or MLV] at 974-1021.
H.D. Lasswell, "Anticipating Remote Contingencies: Encounters with Living Forms," in A.G. Haley & M.D.
Schwartz, Eds., Proceedings of the Fourth Colloquium on the Law of Outer Space, International Institute of
Space Law of the International Astronautical Federation (Norman, Oklahoma: University of Oklahoma
Research Institute, 1963) at 89-129 [Lasswell 1963]. Regarding authorship, since all of the authors of Law and
Public Order in Space are deceased, I contacted Professor W. Michael Reisman, who confirmed that, while
chapter nine was Lasswell's "idea and initiative," every chapter was collective and each word was reviewed and
approved by the other authors (personal communication). See also: W. Michael Reisman et al., Commentary,
"The New Haven School: A Brief Introduction" (Summer 2007) 32 Yale J. Int'lL. 575.

50
(MLV 974). Aside from this specifically "poorly anticipated" decision, they also note that

speculation challenges both "rigid images" and "intellectual smugness" (MLV 974-975). In

this way, with a similar purpose but different method than Haley, careful policy and legal

speculation can hopefully save lives and bring intellectual enlightenment and innovation in

the newly opened frontier of outer space.

McDougal, Lasswell, & Vlasic: Life as We Do Not Know It (Sort Of) II51

At several points in their analysis, MLV note the uncertainty that characterizes any

approach to ETI life. For instance, they state that it "is wise to warn against the assumption

that life on other planets has paralleled evolution on earth" (MLV 975). Noting potentially

different chemical compositions from our own, the authors also later note potentially

different physical characteristics, moral or other values, and institutional/community

practices (975-976). However, having made such caveats, they quickly cut to the core

characteristics that enable their almost fifty-page policy-oriented analysis of the issue52.

Akin to almost all of the other ETI commentators, they proceed quickly from the

probable existence of extraterrestrial life to encounters with advanced or recognizably

intelligent ET life to correlative or highly analogous forms of intelligent life53. Despite

potential chemical differences, MLV pronounce that "the critical likenesses and differences

will be in culture," which they define as "relatively stable patterns of relationship in a social

This title is taken from the recent book on astrobiology by Peter Ward, Life as We Do Not Know It: The
NASA Search for (and Synthesis of) Alien Life (New York: Viking, 2005). For a partial transcript of a March
2005 Conference on 'life as we do not know it', see online: www.astrobio.net/news/article2168.html.
As with Haley, MLV assert the scientific probability of the existence of extraterrestrial life and the need for
out-of-the-box speculation, but then slip back to necessary assumptions of advanced life. This chain of
reasoning, unbroken in my own approach to the ideas, precludes more environmental law, animal law, or
ecological approaches. In a disciplinary manner, the seemingly requisite similitude itself structures the
available historical analogies and philosophical/epistemological speculation. I return to this later in the thesis at
Chapter Five and the conclusion.
5
While some spend more time than others in arriving at cognizable legal subjects, most of the analyses share
this same end point or even require it (e.g. Haley, Fasan and his five factors, etc.).

51
process" and "interaction among living forms" (975). In this way, the fundamental issues

can "... remain the same whatever the physical characteristics" (976; italics mine). For

MLV, the key organizing principle of human culture or social process is the maximization of

"value outcomes" or "preferred events" (975-976). Despite the wide variety of forms and

values that 'advanced forms of non-Earth life' might exhibit, MLV seek to approach their

topic systematically. Indeed, they note that the dizzying potential for variety could confound

any systematic approach. They briefly entertain such examples as societies lacking affection

(adverting to some unnamed human societies that lack "true rectitude" given impermissible

individuality)54, differing standard heights (two feet or sixteen feet), different sexual norms

(three sexes or non-physical intercourse, as per some plants), and universally blind/deaf

populaces with radar (akin to bats) (976)55. In order to escape this potential chaos, MLV

"resort to drastic simplification" and consider only "three broad contingency assumptions: a.

that new forms of culture are inferior in science and technology; b. that they are similar; c.

that they are superior" (976-977). In this way, the authors are able to maintain their focus

upon science, technology, maximizing preferred events, and relatively known (or presumably

knowable) unknowns.

See section below in Chapter Five, 'Does Indians Have Feelings?'.

55
MLV's speculative list resembles Jorge Luis Borges' fictional taxonomy, quoted in Michel Foucault's The
Order of Things: "This book first arose out of a passage in Borges, out of the laughter that shattered, as I read
the passage, all die familiar landmarks of my thought—our thought that bears the stamp of our age and our
geography—breaking up all the ordered surfaces and all the planes with which we are accustomed to tame the
•wild profusion of existing things, and continuing long afterwards to disturb and threaten with collapse our age-
old distinction between uie Same and the Other. This passage quotes a 'certain Chinese encyclopaedia' in which
it is written that 'animals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) suckling
pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j)
innumerable, (k) drawn with a very fine camelhair brush, (1) et cetera, (m) having just broken the water pitcher,
(n) that from a long way off look like flies'. In the wonderment of this taxonomy, the thing we apprehend in one
great leap, the thing that, by means of die fable, is demonstrated as the exotic charm of anodier system of
thought, is the limitation of our own, the stark impossibility of thinking that." (See M. Foucault, The Order of
Things (New York: Pantheon, 1970), xv (Preface).

52
 In qualifying 'inferiority', MLV emphasize their focus on strictly scientific and

technological features as opposed to other criteria. For instance, they note that while the

"carriers of European civilization took advantage of their new science and technology to

permeate Asia, Africa, the Americas, and the islands of the Pacific" (977), it would not be

possible to extend such superiority to all realms of life in comparison to ancient China or

southern Asia. These other realms of life appear to include, at the least, "literary and artistic

developments" (977). Nonetheless, the key determinant for MLV in responding to the three

contingencies (inferiority, similarity, superiority) emerges as "the constitutive process, or the

creation and maintenance of fundamental perspectives through appropriate decisions

regarding authority and control" (977). Put somewhat more simply, and akin to some of

LasswelFs other famous formulations, they ask "who, selected how, is authorized in what

contexts, using what base values and strategies, to make decisions in regard to what value

outcomes?" (978)56. Seeking to address the hypothetical systematically, MLV have boiled

the question down to the basic structure of other (world) public order problems.

This structure is also universal and thus they are able to draw upon the "vast

storehouse of pertinent parallels" provided in human history (978). Indeed, despite stating

the importance of acknowledging 'life as we do not know it', the authors note that in

"principle, there is no novelty in the confrontation of societies whose members are at the

same or at different levels of scientific and technological sophistication" (978). Emphasizing

that "important elements of consensus do exist" regarding outer space matters, MLV infer

56
Lasswell famously formulated descriptions of politics (Who gets what, when, how?) and communications
(Who says what to whom in what channel with what effect?) (see: Harold D. Lasswell, Politics: Who Gets
What, When, How (New York: Meridian Books, 1958) [1936]; H.D. Lasswell, "The Structure and Function of
Communication in Society" in L. Bryson, ed., The Communication of Ideas: A Series of Addresses (New York:
Institute for Religious and Social Studies, 1948)). Aside from his own work, LasswelFs wartime propaganda
analysis had a huge peacetime influence, including, for instance, the content analysis utilized to assess racial
and other bias in Ontario school textbooks (see Pratt's Teaching Prejudice, below).

53
that these could apply to "contingent encounters in space" such that "the goal of human

dignity is to be understood as including the requirement of dignity for all advanced forms of

life" (979). In this way, mimicking the progression from probable life to encountering

advanced life, MLV also evoke familiarity and consensus in human affairs, such that the

ostensibly universal goal of human dignity extends to dignity for all (advanced) forms of life.

MLV do not contend that any consensus has come cheaply, but only "after a long and

often bloody history [has] the principle of equality [...] been substantially accepted among

all members of the species" (979). At this point in the prologue to their analysis, MLV

demonstrate the slippage between the concepts simultaneously linking and distinguishing

human and advanced non-earth life in their hierarchy of contingencies. Although noting that

culture serves as the determinant factor, but emphasizing that inferiority/superiority deals

only with technological development, MLV fail to maintain these already sketchy borders.

For example, they stress that "Regardless of culture level it is now recognized that a voice in

the world decision process is not to be permanently denied to any territorial community"

(979; italics mine). The temporal quality of voice on the world stage turns on the two

concepts evoked by MLV, which run into each other here: "If at any time and place the level

of culture is low, it is a responsibility of more civilized societies to act as trustee for the long-

run interest of the society of inferior technology until such time as the latter has acquired

sufficient mastery of civilization to assume the responsibilities required of full members of

the world arena" (979). In this complicated calculus, the notions of society, culture,

technology, membership and civilization all seem to run together in determining who,

selected how, is authorized in what contexts, using what base values and strategies, to make

decisions in regard to what value outcomes (or, who gets what, when, and how).

54
 While these three supposedly systematic markers of international legal and political

voice remain unhelpfully indiscrete, the important point for MLV is the world community's

"predisposition [...] to accept a goal whose scope is broad enough to overleap differences in

culture among advanced forms of life possessing approximately equal brain capacity" (979).

Based on this common goal (but not yet reality), MLV proffer the "vast repository of

situations that can profitably be studied to reveal the factors that condition contact among

beings of diverse culture" (979). After studying such factors, MLV promise that they can, in

turn, be "managed by strategies designed to maximize" the preferred events of minimum and

optimal public order (979). In this vein, MLV pursue a path later followed in NASA's

astrobiological, interdisciplinary endeavors combining, for example, scientists and

anthropologists in order to expand on the Drake equation's probability of ET life57.

Depending upon one's viewpoint and interpretation of the 'often bloody history',

which is neither frozen nor finished, the illusory consensus and universality of dignity,

equality, and uneven levels of culture proffered by MLV actually emerge as somewhat

threatening. They are threatening insofar as they permit the further expansion of inequitable

political and legal relationships based upon a metric defined, enacted, or rationalized after

being materialized by only one side of these unilaterally dependent relationships.

Correspondingly, the vague, perhaps empty goal of dignity and the principle of equality

(limited to voice, but without the option of exit) only seem to perpetuate and extend the

status quo. Since dignity does not appear to be enough on earth, it is not likely that it will

suffice in the heavens.

For example, see Dick 2006; Ward 2005.

55
 Martti Koskenniemi and others outline the differences between, for example,

competing schools of thought and ways of interpreting/constructing international law58.

Haley and the 'natural lawyers' and McDougal's policy-positivist-realists echo these shifts or

struggles over approaches to and directions of the law through ETI legal theory. However,

aside from their differences, the colonial aspect or mentality remains in their historical

examples and developmental assumptions despite their own best intentions to the contrary.

While one set of commentators might start from the basic principle or rule (of recognition?)

and extrapolate further laws or rules, another group of commentators employs a frame

worked out in advance and simply crunches different scenarios through it. Despite all of

their substantive (positivist, realist, naturalist, pragmatist, formalist, functionalist)

distinctions and differing intellectual architecture, the diversity seems to collapse here in the

similar conflations made by space law commentators in their efforts to open new frontiers.

Although clearly valuable and insightful, I do not believe that this conflation takes

place simply due to the law's disciplinary anxiety about the triumph of science at its expense

(especially given the close ties between science and law in the field of outer space law).

However, emphasis upon the respective atom-smasher of legal discourse and order in the

Lockean genesis of law focused upon the preservation of private property (per Beebe and

others) does ring true with much contemporary and subsequent assessment of existing treaty

law and secondary literature59. In order to move beyond MLV's bare dignity, or for that

matter Haley's metalaw and inverted golden rule of aspiring non-anthropocentric law, I will

argue further below that lawyers and academics might need to look both farther afield and

58
Gentle Civilizer, see above.
59
See, for example: Jason Krause, "Making Space Matter" (March 2008) ABA Journal Magazine (online:
http://www.abajournal.com/magazine/2008/03) (discussing competition between profit-driven, commercial
outer space prospects and enduring 40 year legacy of OST's principle of the 'common interest of all mankind').
See also Tobias; Thomas in note 3, above.

56
closer to home. Before doing so, however, it is necessary to review both what and how MLV

say about encountering forms of advanced non-earth life with inferior, similar, and superior

science and technology.

Rhyming, Repeating, or Repressed: the Future History of Space Aliens

The initial results of MLV s speculation seem to me to be almost comical, given the

paraphrase of Marx's gloss on Hegel that "history repeats itself, first as tragedy, second as

farce" or the both more and less structural saying by Mark Twain that "history may not

repeat itself, but it does rhyme a lot" . For instance, consider MLV's opening salvo:

"Assume that when an astronautical Columbus arrives at his destination he finds advanced

forms of life which are quite obviously inferior in the science and technology of warfare and

production, though possessed of excellent brain capacity" (MLV, 980). If the hypothetical

seems to lack sufficient detail, MLV offer in a footnote that 'excellent brain capacity' "must

ultimately be assessed in terms of aptitude to acquire and create science and technology of at

least equal complexity with ours" (MLV, 980 at note 6).

In Columbus' log entry for his first sighting and landfall on Friday, October 12, 1492,

he makes similar assessments speaking to the decisive norms of his day as much as MLV do

in their footnote. The Admiral notes that "No sooner had we concluded the formalities of

taking possession of the island than people began to come to the beach, all as naked as their

mothers bore them [...] They are very well-built people, with handsome bodies and very fine

faces" . Having established inferiority for his (royal) audience in, at least, production, by

60
For Marx, see online: http://www.bartleby.com/66/53/38153.html.
61
Robert H. Fuson, transl., The Log of Christopher Columbus (Camden, ME: International Marine Publishing,
1987) at 76. See also: Privileges and Prerogatives Granted by Their Catholic Majesties to Christopher
Columbus (1492) (The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the
States, Territories, and Colonies Now or Heretofore Forming the United States of America Compiled and
Edited Under the Act of Congress of June 30,1906 by Francis Newton Thorpe (Washington, DC: Government

57
noting their nudity, Columbus remarks on the level of warfare technology: "They are friendly

and well-dispositioned people who bare no arms except for small spears, and they have no

iron. I showed one my sword, and through ignorance he grabbed it by the blade and cut

himself (Fuson 76). Having also established military inferiority, Columbus next assesses

the capacity (perhaps more germane both to his epoch and the sovereigns he addressed in his

logs) for manual labour, spiritual indoctrination, and linguistic ability. He also makes an

abduction:

I want the natives to develop a friendly attitude toward us because I know that they are a
people who can be made free and converted to our Holy Faidi more by love than by force.
[...] They ought to make good and skilled servants, for they repeat very quickly whatever we
say to them. I think they can easily be made Christians, for they seem to have no religion. If
it pleases Our Lord, I will take six of them to Your Highnesses when I depart, in order that
they may learn our language. [Fuson 77]62

Clearly, while some of the 'universal' values have changed at least superficially over the

years (Christian hospitality to human dignity/rights), others have not (forced labour,

migration, and scientific, technological, and military prowess and production). Indeed, the

attitude appears to be strikingly similar in terms of the conversion from scientific,

technological, cultural, and pre-civilization inferiority to full membership and voice in world

society.

Nonetheless, in proposing policies to tackle both the problems of the minimum

requirements for world security and the long-run interests of new communities, while still

aiming at the "overriding goal of human dignity" (980), MLV settle upon a balancing act.

The policies they consider in this tightrope encounter with inferior cultures are:

1) minimum security and the sphere-of-infiuence device;

Printing Office, 1909)) (online: https://portal.utoronto.ca/courses/lAVinter-2008-LAW292H 1 -S-

LECOlOl/content/ 871357 1/ Columbus%201492.pdf).
62
Contrast this linguistic brain capacity with Columbus' own and the shifting transparency/opaqueness of the
'Indians': "The people here called this island Guanahani in their language, and their speech is very fluent,
although I do not understand any of it" (Fuson 76).

58
 2) eventual partnership and the trusteeship device;

3) the device of direct intergovernmental administration;

4) the policy of minimum interference;

5) the technique of devolving authority and control; and,

6) control of special interests within non-Communist and Communist powers

(980)63.

Concerning the sphere-of-influence device, MLV briefly review some historical

precedents that sought to relieve internal political tension by projecting it outside Europe (on

the parity of current power principle). For example, they briefly discuss the papal bulls

drawing lines "between Spanish and Portuguese spheres of interest in the New World" (980),

Bismarck's supposed encouragement of French colonization post-1871 to dilute any revenge,

and the "scramble for colonies, notably in Africa" (981). MLV take a dim view of this

device when used in isolation, stating that it will at best accomplish postponement (983).

They arrive at their conclusion by noting that:

a) the tensions generated at the periphery simply add to existing tensions at the
centers of power;

b) every addition at the periphery means the multiplication of active participants in

the global balancing act;

c) every extraterrestrial site is likely to evolve toward independence through self-

awareness and development of its astropolitical self and other-ing that would simply
increase the forces of autonomy; and,

d) while deferral could be accomplished by the center "for a long time if the ruling
elite is both strong and apprehensive" (983), it will not bring minimum security or
public order (981-983).

These alternatives are quite similar to Jessup & Taubenfeld's proposed (analogical) controls for outer space in
Controls for Outer Space.

59
Ultimately, MLV make the following stark conclusion:

It is tragically apparent that the trend of destructiveness has been upward. The principal result
of generations of European statecraft and enterprise has been to enlarge the parochial theater
of Europe into a worldwide arena of greater danger for all. In the light of the past it is not far-
fetched to assert that a statecraft of disunity, if continued, will transform the astropolitical
arena into a giant battlefield for struggles that began among the peoples of Europe, spread
throughout the globe, and ultimately implicated advanced forms of life everywhere. [983]

In this vision, similar to Haley's worst fears, MLV project the taint that Europe attempts to

exorcise from itself through colonization to the entire universe of potential actors in outer

space.

Regarding the trusteeship device and eventual partnership, MLV are aware of the

hubris of their analysis, asking whether "our civilization [is] so brilliant that we are justified

in intruding it upon others, as European and American civilization intruded upon Japan and

other countries? In particular is it responsible conduct to carry our weapons and civil wars

into an interplanetary arena?" (9S3)64. Beyond what they characterize as the "usual answer"

of indifference or inevitability, MLV embrace the opportunity and challenge of ETI for "our

civilization" to better itself (984). The need for self-improvement arises through an

obligatory-sounding obeisance to a partial history of inferiors, which "is barely necessary to

mention" or "surely unnecessary to mention" (984). These almost-unmentionables concern

the "damage that can be done to weaker peoples by an expanding civilization" possessing

greater destructive technology (984). For instance, they note the "Indians of North America,

most of whom were killed in the struggle to protect their habitat from invading Europeans, or

the less sweeping but nonetheless extensive slaughter of native populations by the Spanish

conquerors of Central and South America" (984). MLV are also alive to the perils of the

transatlantic slave trade, the "practical slavery" in the "mines or plantations" of the South and

64
In a note to this question, MLV refer to the recurrence of such themes in science fiction, "including sharp
self-criticism of human cultures to date. Consult Great Science Fiction by Scientists (Conklin ed. 1962), or any
collection of high-grade examples" (MLV, 983 at note 10). See also M. Rose, Alien Encounters.

60
East, and the social and spiritual damage and disorganization that flows from "physical

annihilation" (984) and leaves the sole solution of assimilation.

Akin to my criticism of the goal of universal human dignity, the trusteeship model

provides no exit from the system: one must either join as junior member, die, or wither away.

The one-way transfer and inevitability of these atrocities remains in the past, which is where

MLV seem to relegate this catalogue of "indulgence and deprivation resulting from the giant

impact of Europe upon the globe" of inferiority surrounding it. Although they write as

though the passage of time has tempered these histories, and MLV even note some of the

"positive side" of what happened, the fete is clearly not accompli.

Indeed, MLV extol the striking modification of the "nation-states of Western

European civilization [in their] approach to primitive peoples" (984). The first sign of this

shift (and it is symbolic) is semiotic. MLV proclaim that:

As a reminder of the post-colonialist outlook of Western Europe it is noteworthy that

scientific and political vocabularies have shifted remarkably in recent decades. 'Savage'
societies have tended to disappear in reality and also in the titles of books and articles. Even
'primitive' societies have given way to 'folk' societies; and 'backward' peoples are
'underdeveloped' or 'less developed' or 'emergent'. [984-985]

They celebrate both these moves from evaluative/pejorative to designative/factual

terminology as well as the scientific ability to measure the accuracy of these terms in the

future65.

MLV also raise the specter of an alternative explanation for Europe's shifting

approach to its weaker counterparts around the world: "the relative decline of Western

Europe and the rise in power of the former colonial peoples" linked to the effective

65
See also: Luis Rodriguez-Pinero, Indigenous Peoples, Postcolonialism, and International Law: the ILO
Regime (1919-1989) (New York: Oxford University Press, 2005) at 38-50, ch. 5, and 338-341 (regarding the
varying constructions and meanings of 'indigenous' from classical to modern to contemporary (and paralleled
with the concept of 'integration' through economic development, acculturation, and equality)). See also
discussion in Chapter Four below regarding the construction and development of scientific facts and poverty.

61
exploitation by the "Communist elite" of "proletarian peoples against 'capitalist imperialists'

[...] despite the sobering and often belated discovery of 'socialist imperialism'" (985). In

this rendering, the Second and Third Worlds appear and disappear sporadically and

seemingly conveniently. While it is not clear where Germany and Hitler would fit in this

geopolitical schematic, MLV do mention the absurd and provocative nature of "Nazi racism"

(985). Nonetheless, while for MLV the deflation of race as a master status "reflects both the

sharpening of scientific categories and the sense of peril among declining 'Whites' in

contemplating their world power position" (985), they do not see any false promise in

scientific categories, potential taint from the adjacent (if not constitutive) White peril, or any

link between science, pseudo-science, and racial or other categories (despite their awareness

of Nazi racism). Instead, they trumpet the invention of "strategies adapted to the assimilation

of pre-scientific peoples into modern styles of life at minimum cost in terms of every value"

(985)66.

Returning to the device of trusteeship, MLV note its origin "as a means of reconciling

two seemingly incompatible objectives of policy: 'To the victor belong the spoils' and 'the

universal right of self-determination'" (986). Given the long wind-up of the need for and

reality of self-improvement, MLV's pitch on this particular device is abrupt and negative.

Basically, the maximized trusteeship could lead to internal and external complaints of

domination. As well, the eventuality of autonomy would act as a disincentive to trusteeship.

Both problems would likely lead the trustee power to "get rid of the burden" (986) and foist

For genealogy and criticism of such thought historically and more recently, see for example: Michael Adas,
Machines as the Measure of Men: Science, Technology, and Ideologies of Western Dominance (Ithaca: Cornell
University Press, 1989) (including discussion of U.S. colonization of the Philippines, where "Perhaps more than
in any other colony, the role of the engineer as civilizer was touted by politicians in Washington and officials in
the Philippines" (407)); Sandra Harding, Ed., The "Racial" Economy of Science: Toward a Democratic Future
(Indiana University Press: Bloomington, 1993).

62
autonomy/independence upon an unprepared community doomed to "disorder and tyranny

following] on the heels of emancipation" while simultaneously victim to "active covert

exploitation" (987) from outside powers. In a footnote, MLV even note how the "modern

world, especially Africa, is a demonstration area for the timing of self-government and its

consequences" (MLV, 987 at note 15). In keeping tally, MLV do not advise exporting either

spheres-of-influence or trusteeships in the governance of inferior extraterrestrial societies.

MLV's treatment of the third device, direct intergovernmental administration, is

refreshingly brief. Defining it as "direct administration by an international organization,"

MLV distinguish it from "joint rule by two or a few powers" which they regard as worse than

trusteeship (987). While they do think that this type of administration could be an

improvement upon the negatively reviewed mandate device, MLV ultimately find it to be

unreliable given variable degrees of inferiority that could arise in non-earth societies. Where

such ET forms of life are "conspicuously inferior in cultural level, resembling the

rudimentary cultures of Andaman Islanders or African pygmies," MLV foresee good chances

for international agreement concerning administration (988). However, where "we encounter

civilizations obviously well developed although possessing no significant science or science-

based technology" (988), MLV anticipate a contest for control over these new populations

(especially where they are numerous and accompanied by "rich natural resources" (988)).

Given the likelihood of such Cold War-in-space squabbling and the "danger of destructive

war" (988), MLV instead prefer the use of the sphere-of-influence device with potential

trusteeship blended or mixed in "to mitigate exclusive control" (988). The recipe-like

prescriptions are only heightened in MLV's discussion of the fourth device, the policy of

minimum interference.

63
 Put simply, MLV define the policy of minimum interference as "minimum

interference with the culture — and with the autonomy - of others" (988). Akin to

Goldilocks, MLV understand (in hindsight) the importance of getting things just right. In

setting their ET governance calculus, they hold that such a policy or strategy of minimum

interference "is correctly applied when it steers between total absence of pressure for change

and a demoralizing tempo of innovation" (988). Aside from the Cold War, and more in the

vein of their footnote regarding the "rich literature on the strategy of aided development"

(985 at note 13), MLV recommend against using resources to save lives in situations where

populations would increase while decreasing "the level of living" or "reducing the level of

consumption" (989) . Briefly stating their support of the balance struck by "folk societies

[...] between collective and private administration of natural [local] resources" (989), MLV

tackle the issue of democratic versus non-democratic societies. They seek to take a balanced

approach of neither too much nor too little democracy, but "provide general, though not

necessarily inclusive, exposure to power sharing" (989-990). Having emphasized the need

for balance, MLV discuss some specific examples.

Without any real connection, MLV further set the limits and dilemmas of the policy

or strategy of minimum interference (what I will also refer to as 'minterference') through the

examples of, as they put it, "institutional forms specialized to affection [family] or rectitude

[moral responsibility]" and the case of "strong pressure among earth peoples for the

colonization of outer space" (990). While MLV do counsel restraint and a laissez-faire

attitude with respect to the former examples, they draw a line in the hypothetical sand at

certain "forms of coercion [... ] that cannot be tolerated" such as "the burning of widows

Compare with Fasan's fifth rule of metalaw: "The principle of preserving one race has priority over the
development of the other race."
upon the funeral pyres of their deceased husbands" (990) . Conversely, in the latter case of

populist calls for colonization, MLV "have no hesitation in recommending a policy of active

colonization in habitats that are wholly unoccupied or very sparsely inhabited" (990). In a

hypothetical of ET 'locals' lacking the technical know-how to exploit or "employ the

resources most abundantly" (990), MLV provide a 'best of both worlds' solution that allows

eventual participation by the locals and immediate cultivation of the resources.

Discussing this flexible governance device in the section on minterference, and

sounding eerily like the system of reservation geography introduced and maintained in North

America69, MLV decide that the right answer "is to recognize a native sphere of interest large

enough to allow for substantial population growth once the new technology has been

acquired, and to consolidate a community that is eventually eligible for partnership in the

universal commonwealth" (990). On this logic, the recognized or preserved (not necessarily

realized or enjoyed) 'native sphere of interest' need not be very large at all, given the

prerequisite of technology acquisition and the transformative, compressing effects of such

technology on pre-existing ways of life. As well, it is not clear how the community

consolidation, assuming sparse population as MLV initially do, looks any different from the

assimilation they refer to earlier (when discussing the need for self-improvement) as the

inheritance of ethnocide bequeathed to the survivors of colonialism's physical assaults.

On this point, see the discussion in G.C. Spivak, "Can the Subaltern Speak?" in Williams & Chrisman, eds.,
Colonial Discourse and Post-colonial Theory: A Reader (London: Harvester Wheatsheaf, 1994) at 66-111 (first
published in Larry Grossberg & Cary Nelson, eds., Marxist Interpretations of Literature and Culture: Limits,
Frontiers, Boundaries (Urbana: University of Illinois Press, 1988)).
69
See Robert White-Harvey, "Reservation Geography and the Restoration of Native Self-Government" (1994)
17 Dalhousie L.J. 587. (comparing the relative land poverty of Canadian First Nations to American
reserves/reservations and the necessary, but currently still unavailable, land base); Cole Harris , "How Did
Colonialism Dispossess? Comments from an Edge of Empire" (2004) 94 Annals of the Association of American
Geographers 1 at 165-182.

65
 Conversely, in the scenario of an abundant (but still technologically inferior and

resource-inefficient) native population, MLV acknowledge that at least they have been able

to "sustain a dense population" (990-991). In this hypothetical, MLV rule out 'mass

colonization' because it would "restrict access to the environment" in a way that imperils the

dense native populace. However, they do authorize the use of "selected colonists - capable

of contributing to the modernization of the planet or satellite" (991). Following along with

my own 'post-colonialist' scare-card, MLV neatly allow the strategic followers of principled

minterference to repeat either the respective settler society or imperial colonizations of, for

example, North America's 'Indians' and/or India, depending upon whichever reality presents

itself to them on the extraterrestrial ground.

Although perhaps not intentionally flowing from their approval of the use of selected

change-agent colonists, MLV's fifth ET governance device deals with the devolution of

authority and control. They specify this device as the "deliberate program of'indirect rule'"

and refer to the historical analogue of "British Empire and Commonwealth" (992). In this

analysis, MLV are most motivated by the issue of burden and benefit sharing between the

central unit and locality, such that the aim is "reducing the cost of modernizing (and

democratizing) such communities" (993-994). They outline their best advice on securing this

speculative balance:

The prospects o f frictionless' adjustment are increased if the established ideology is

reinterpreted in ways that harmonize with new knowledge and experience. We know that
exposure to many of the gadgets produced by modern science and technology led to the
demand for specific changes [...] when these demands are stimulated the motivations are
present for innovations that improve production and purchasing power, and accelerate the
acquisition of gadgets. [MLV 993]

Perhaps stemming from LasswelFs experience and expertise in propaganda and

communications studies, MLV ground this new version of the white man's burden in the

66
export of gadgets and, put hyperbolically, covert collective mind control. This latter program

is best carried out through one of the most common experiences of captive audience known

to humans, and presumably aliens: "explicit education" (993). In this way, through careful

and seemingly respectful adaptation, MLV conclude that "it is possible to locate in

established practices the words and deeds that most closely approximate the postulated goal

of human dignity. [...] There is no intellectual necessity for any social myth to 'collapse'; it

can be redefined to perform a progressive function" (993-994). Thus, the fifth device of

devolution through intellectual, economic, and simultaneously internal evolution seems to be

a useful one for MLV.

Turning to the sixth and final technique of ET governance, MLV emphasize that the

policies of minterference and devolution require that "superior civilizations prevent their

members - whether organizations or individuals, governments or private associations - from

engaging in the pursuit of special [...] interests" (994). In this way, there is some

resemblance at least to the Royal Proclamation of 1763 by the British Crown70, as well as

early American colonial and Union attempts to restrict, consolidate, and monopolize

speculation and homesteading while managing the frontier and relations with Aboriginal

Of course, from the Royal Proclamation of 1763 ("the several Nations or Tribes of Indians, with whom We
are connected, and who live under Our Protection") to all of the various statutes from the 1850s and onwards,
such preventions have coincided with the continuous creation and revision of the status of persons deemed to be
or not to be "Indians" through government-defined blood, marriage, enfranchisement, residence on certain
lands, and membership in certain bands: An Act for the better protection of the Lands and Property of the
Indians in Lower Canada, Statutes of the Province of Canada 1850, ch. 42; An Act for the protection of the
Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and
injury, Statutes of the Province of Canada 1850, ch. 74; An Act respecting the Management of the Indian Lands
and Property, Statutes of the Province of Canada 1860, ch. 151; An Act providing for the organisation of the
Department of the Secretary of State of Canada, andfor the management of Indian and Ordnance Lands, S.C.
1868, ch. 42; An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and
to extend the provisions of the Act 31st Victoria, Chapter 42, S.C. 1869, ch. 6.; An Act to amend and
consolidate the laws respecting Indians, S.C. 1876, ch. 18; An Act for conferring certain privileges on the more
advanced Bands of the Indians of Canada, with the view of training them for the exercise of municipal powers,
S.C. 1884, ch. 28; Indian Act, S.C. 1951, ch. 29.

67
communities. Having made this caveat in the form of their sixth device, MLV would restrict,

or expect the restriction or abolition, of drug/weapons trafficking and the slave trade (994).

Albeit not connected to the role of the space academic-military-industrial complex

(and other statements)71, MLV write that the "private company organized for economic

purposes has been the most disastrous instrument of contact between European society and

other cultures" (994). As a specific example, they cite the "most shocking abuses" of the

Association Internationale de Congo and King Leopold II (994-995). While these private,

capitalistic, rent-seeking problems will characterize non-totalitarian forays into space, MLV

note that the totalitarian forays will suffer from political problems. A potential solution to

the rent-seeking problems is presented in the potential for holding "private capitalistic

enterprises [...] in check by coalitions recruited from among public enterprises, and by

ideological commitment" to the goal of consolidating "all advanced forms of life in the

pluralistic framework of the non-totalitarian bloc" (995-996)72. Deploying these Cold

(World) War carrots, sticks, and realities in their arguments, the truest conclusion made by

the authors is their certainty that "the dynamics of politics will not be suspended by the fact

of translation into outer space" (997). Having assessed the six devices and their relative

shortfalls and benefits, MLV are ultimately back where they started: consumed by the present

geopolitics and bolstered by a partial, progressive colonial past.

As for "Recommended Immediate Alternatives" (997), MLV note the need to have

clear earth policies worked out ahead of time. They espouse the reaffirmation of "trustee

71
See MLV, chapter 8.
72
See, for example, Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the
Critique of Ideology (New York: Oxford University Press, 2000); Immanuel Kant, ed. Pauline Kleingeld, transl.
David L. Colclasure, Toward Perpetual Peace and Other Writings on Politics, Peace, and History (Rethinking
the Western Tradition) (New Haven, CT: Yale University Press, 2006) (with essays by J. Waldron, M.W.
Doyle, A.W. Wood).

68
agreements providing for international supervision of the control exercised over an

undeveloped population by a single power" (997) under the auspices of the UN in regard to

outer space localities (998). They again point to the problem-solving ability of "effective

recognition of the claims of the indigenous population to continue in at least partial control of

their homeland" (998). MLV explicitly recommend the use of reservations in the event of

encountering 'space natives' "conspicuously inferior in brain capacity to men" such that the

"humane course would appear to be to set aside reservations for the exclusive use of

permanently handicapped populations" (998). Aside from the benefit of protecting "near-

human types from exploitation as pets or domesticated animals," such reservations would

also supposedly help to prevent the slippery-slope effect within non-handicapped human

relationships (998). In review, MLV's speculations concerning long-term and immediate

responses to encountering advanced forms of non-earth life with inferior science and

technology amount to: mandates, trusteeship, and reservations. I next turn to their

speculation on encounters with civilizations of similar and, subsequently, superior science

and technology.

Contact with Civilizations of Similar Science and Technology

In their consideration of contact with civilizations of similar sci-tech, MLV set out the

general strategies open to the elites of these civilizations were they to "look upon the earth as

a potential enemy" (998)73. These alternatives are:

1) subjugate or destroy the earth;

In passing, it is worthwhile to note that the seemingly revolutionary role and centerpiece place given to
Haley's inverted golden rule (treat others as they would like to be treated) emerges without comment as a
commonplace in MLV's analysis insofar as they are able to 'step in' to the aliens' decision-making processes.
On a more pessimistic note, both methods could beg the answer of knowing 'the other' through a common
question: who has the best spy satellite?

69
 2) offer admission into the non-earth system to one earth coalition in return for aid in
eliminating or subjugating the other;

3) offer admission to all earth coalitions if disarmed; or,

4) offer parity within an inclusive system of public order whose effective police forces
would be under joint control. [998]

These options underscore the pervasive emphasis upon versions of access and modes of

participation that shaped MLV's analysis regarding contact with civilizations of inferior sci-

MLV discuss the importance of initial contacts. They state that these encounters

should be "highly selective" and make use of "visiting delegations of scientists to become

acquainted with one another and with prevailing conditions in the physical and social context

of the new neighbor" (999). The practicality of these suggestions is reflected by the fact that,

unlike previous 'discoveries', the anticipated initial contacts will take place in the more

practicable, long-range realm of telecommunications. MLV predict that such communication

might "open the way to bilingualism and to detailed description of life on both sides" (999)75.

The focus upon communications would involve information-sharing emanating from those

studying science and technology to "all other social values and institutions" (999). In line

While MLV foresee the earth's disadvantage given its political divisions, they note the further complications
that would arise "if the inhabitants of the new site are divided, and if their divisions correspond approximately
to the ideological differences prevalent on earth" (999). In this imaginary, MLV set out alien/earth elites of
centralized/socialist powers as well as decentralized/pluralized powers. They do not conclude that "Soviet elite
members" would necessarily be better off by joining the alien elite, given the uncertainty of such new
relationships and the fact that the Soviet elite "would share many of the common assumptions of mankind"
(999). In this limited aspect, the dream (or nightmare) of a 'one world-mentality' remains grudgingly alive.
75
In this section, MLV also note that "Guided mass media programs can be used to overcome any sense of
distrust and to further the growth of empathy and mutual identification among all members of the astropolitical
arena" (999). Albeit citing to Lasswell's similar paper in the Colloquium LOS, Beebe refers to this prescription
in his Note in distinction to the concerns raised by Haley on Metalaw. In comparing the two versions of this
piece, there is substantial similarity (and usually identically verbatim). Given this resemblance, it does not
seem fair for Beebe to idealize either McDougall or Lasswell's more 'realistic' speculations (or lack thereof) on
the subject of ETI in comparison to Haley's writing. Of course, there are significant differences as noted in the
body of this thesis. As well, outside of written work, Haley promoted his ideas much more (perhaps tied to his
role as a key organizer and founder of international space law studies, per the IAF, the Outer Space
Colloquiums, and as counsel to the American Rocket Society).

70
with the anticipatory bent of MLV's speculations of advanced forms of non-earth life, they

note that the "problems of peaceful transition into an inclusive system of public order can be

dealt with before the exchange of delegations" that would eventually vet the shared

information (999)76.

For MLV, this desire for cooperation and mutual learning is further complicated,

however, where "reconnaissance reveals the existence of drastically different and

incompatible value orientations and institutional practices" (1000). Unlike the scenario of

alien elites displaying a rivalry similar to that on earth (between centralized, socialist powers

and decentralized, pluralized powers), MLV's speculations on this 'drastically different'

hypothetical are seemingly less predictable. They enjoin our imagination accordingly:

"Assume that a rigid caste system prevails among our newly discovered neighbors, and that a
small, self-perpetuating elite maintains ascendancy by the ruthless application of science [...]
having exterminated all forms of life close to its own intellectual capability. Perhaps inferior
forms, bred as domesticated animals in order to eliminated 'wildness,' are used to perform
some menial tasks. Production, however, may be controlled for the most part by automated
machines, including robots. The ruling caste subjects its members to careful conditioning to
support the world-view and the behavioral requirements of the established order [... through]
narcosynthesis, hypnosis, and symbol-association tests [...]. Any signs of deviation may be
diagnosed as incipient pathology and treated at once. Caste members may be denied privacy
by the frequency with which they engage jointly in activities connected with the decision
process." [1000]

In this dystopian vision, MLV portray an Orwellian future where contact would be inimical

and, like a contagion, best minimized (1000-1001). They emphasize that by "agreement,

exchange of persons - preferably scientific personnel - may be controlled by joint police

missions at midway stations, and kept at a minimum" (1001). Even given minimum physical

contact, MLV do not discount the power of "mutual influencing" and the galvanizing

Of course, assumptions of peaceful, scientific cooperation are both inherently and historically limited. See
Chapter Four below regarding the IGY.

71
potential of planet Y with respect to pro- and anti-caste elements on earth fomenting change

in either desired direction and/or alliance with or "violent elimination o f planet Y (1001)77.

To forestall these potential divisions, miscommunications, and or open conflicts,

MLV turn their attention to the potential for a preliminary agreement. They see no need to

"remain idle until communication is established with sentient forms" possessing similar sci-

tech (1001). Instead, they seek to anticipate the future problems "and pass judgments upon

the transnational practices that have worked most satisfactorily on earth and may be adapted

to the larger arena" (1001). MLV's survey relies on the insight that "code writing, or code

invocation and application, are occasions for creativity rather than for the mechanical

extension of a set of previously defined categories" (1001)78. Basically, where the code-

writers are successful, MLV predict the faster promotion and adoption of the "norms of

public order" on earth and "with representatives of other civilizations during the early stages

of contact" (1001).

In this vein, MLV suggest a framework that can be fully fleshed out at a later time

after the aforementioned communication, language acquisition, and information sharing

(including the exchange of standard reference works/legal codes) (1001). Aside from stating

the goals and aspirations of "most of mankind" (1002), MLV expect the Agreement to detail

a common process of decision developed along parallel lines (1002). In this discussion,

Further 'drastically different' imaginings by MLV include: "Sexuality may be cultivated without limits as to
object or method, save only that coercion must not be employed, and unlicensed progeny are not permitted.
Reproduction may be managed by artificial insemination of licensed mothers from banks of superior sperm.
Inferior infants are destroyed at once, and inferiority is interpreted to include unusual pigmentation or any other
significant deviation from the ideal race type as currently understood. It may be that people are regarded as
functionless when they fail to pass various physical and mental tests, and are promptly destroyed. Criticisms of
the constitution are not permitted: offenders are liquidated. Although close companionships are permitted,
marriage and unlicensed meddling in the education of children may be forbidden. Perhaps non-elite or inferior
beings can be used at will as subjects for scientific inquiry and destroyed as convenient" (1000). Compare this
post-encounter apocalypse with J. Renard, "The Wild Man & the Extraterrestrial: Two Figures of Evolutionist
Fantasy," (1984) 32 Diogenes 63, as well as the T.V. space-opera Battlestar Galactica: The Miniseries (2003).
78
This position also seems to run counter to Beebe's classification of McDougal as an anti-codifier.

72
MLV expand upon the difficulty of such an agreement where the situation is most familiar:

"the new planet or satellite Y has a United Nations like ours" and it is "ideologically and

organizationally divided into hostile camps [...] roughly equivalent to our own" (1002). In

the resulting scrum of interplanetary, diplomatic delegates, MLV predict political

representation relative to each alien and earth power's "effective strength" and likely riven

by potential astropolitical coalition-building rather than the presentation of united planets

(1002). These nascent rivalries are particularly exacerbated by the role of new weapons

technology through direct dominance or indirect "military coup", which MLV see as

potentially decisive in "the balancing of power" (1002).

Nonetheless, MLV do not wish to overstate the case for an astropolitical arms and

power race. Despite the acknowledged potential for secret communications and assistance

between competing factions, MLV state that it would not "be a simple calculation" to follow

such a path (1003). Instead, they ask: "What would happen if allies obtained control of their

respective planets?" (1003). The fear of losing control to outside, albeit temporarily allied,

intervention would increase uncertainty and potentially support the development of a

temporary "common earth front" instead (1004). MLV make use of the example of the

Kremlin leadership and the division between competing demands from the resentful

"peripheral units of the Soviet world" versus "monopoly preferences" for Moscow's central

benefit (1003).

Ultimately, in seeking to set out "steps toward earth and non-earth unity", MLV

emphasize the need for "the two communities [to] decide in favor of or against a universal

public order strong enough to enforce decisions" (1004). Given a lack of confidence, trust,

and information, MLV doubt the likelihood of an "effective monopoly of weapons" by a UN-

73
like body. Instead, they advise and prescribe such an institution "to set up a formal decision

process authorized to deal with all common questions" (1004) without necessarily pre-

determining specific questions and answers. They do note, however, the need to maintain

security and suggest some specific measures for the initial stages of contact (e.g. prior

notification and licensing of interplanetary flights; interplanetary security service to observe

these flights and other weapons installation/observation arrangements) (1004). MLV also

note the utility of using the U.N. and its 'planet Y' counterpart to oversee "new weapons

research and development" (1005). For MLV, the benefits of this specific arrangement

would be the growth in credibility of the interplanetary associations as well as "perfecting the

means of [its defense] against newly discovered planetary powers" (1005). Correspondingly,

the unification of divided earth politics in the face of alien powers would be potentially

repeated between earth and 'planet Y' relations faced with contacting a 'planet Z' of similar

or superior sci-tech . Consequently, the initial, seemingly stark positivism of MLV s

policy-oriented jurisprudence parallels and accommodates some constructivist accounts of

international law80.

Notwithstanding the desire for cooperation and the potential for its cultivation, MLV

also note the expedience for earth's leaders to "take precautions to prevent themselves from

being dominated by the other" in the event that the former possess less resources and

As further inducements to friendly relations, MLV recommend the provision for "a stable medium of
exchange - an astropolitical unit - to be available as legal tender" (1005). In October 2007, foreign exchange
firm Travelex has even worked up a form of potential space currency in the QUID (Quasi Universal
Intergalactic Denomination), which has been "designed to withstand the stresses of space travel and the extreme
environment found in orbit" (online: http://www.travelex.co.uk/press/ENG/DOC_OUID_10042007.asp). Apart
from money, MLV note potential commercial relations (albeit best kept limited to governments) and "the
cultivation of both enlightenment and skill" (1005). Thus, MLV promote free access to different media, the
further study of tensions to "discover similarity of outlook," and preventing private monopoly "whether by
maintaining private competition or by governmentalization" in regulating cultural exchange (1005).
80
For example, see: J. Brunnee & S. Toope, "International Law and Constructivism: Elements of an
Interactional Theory of International Law" (2000) 39 Columbia Journal of Transnational Law 19-74.

74
population than the latter (1005). MLV acknowledge similar needs in a reverse situation,

where the larger earth or planet Y would be "less concerned with the loss of their own

security and can therefore initiate reassuring commitments to the weaker planet" (1006).

Such wariness and commitments also tend to resemble Haley's ultimate conclusions. I will

now turn to MLV's discussion of their third major contingency: contact with alien

civilizations of superior sci-tech.

Contact with Civilizations of Superior Science and Technology: Reservations,

Concentration Camps, and Ghettos a.k.a. the History of Defeated Peoples Inverted

MLV establish several working assumptions for their detailed speculations about the

policies adopted by alien elites towards humans and potential optimal responses. These

include:

a) alien surveillance of the earth and threat assessment of our sci-tech progress;

b) the doubtful asset value of a "divided earth";

c) the negative reputational effect of the earth's "tradition of violence";

d) (superior) planet Y's ability to destroy us "if it decides to do so"; and,

e) Y's "advanced in another sense" preference for nonviolence and persuasion.

[1006]

Given these assumptions, MLV enumerate the policy questions facing the superior alien

elite:

Shall the earth be destroyed as a common threat and nuisance to the cosmos? Shall it be
isolated from the rest of the universe until is has learned to mend its ways and achieved fitness
for membership in a larger commonwealth? Shall the earth be conquered and subject to
tutelage until it has learned to live in more civilized fashion within the limits of its
capabilities? [1006]

At least two observations can be made immediately after reading these questions: 1) the form

of MLV's speculation returns to the schematic, structural method that characterized the

earlier section on contact with inferior civilizations, with which they appear to be both more

75
familiar and comfortable as compared to the tangential and unstructured 'similar civilization'

discussion; and 2) the content of MLV's specific policy alternatives emerges as an inverted

form of their forecasting for encountering the 'inferior' other, with its emphasis upon

destruction, isolation followed by eventual fitness for membership, and/or conquest with

subsequent beneficent tutelage towards civilization. Having assumed both the aliens' ability

to destroy earth coupled with a helpful preference for nonviolent persuasion, MLV hone in

on the two remaining alternatives: 1) the possible isolation and probation of earth; and 2) the

permanent exclusion of earth from astropolitical civilization.

In their approach to the possible isolation and probation of earth, MLV determine that

there is "no exact counterpart in our experience, although partial parallels can be established

in connection with excommunication, boycott, and the establishment of reservations" (1006).

Setting aside the means of earth's isolation, MLV focus upon possible responses "in the light

of the devices resorted to by folk societies and ancient civilizations when subjected to the

pressure of European science, technology, and general culture" (1007). MLV identify these

devices as including misperception, (total) incorporation, or (total) rejection of "the outside

model" (1007). As an example of "bland" misperception, MLV note that earth elites "... will

resemble the Chinese emperor whose perceptions of the world enabled him and his courtiers

to believe that the token gifts presented by the representative of the British Crown were

tributes acknowledging Chinese suzerainty over Britain" (1007)81.

In a footnote to this comparison, MLV also write that "Detailed investigations are needed of the attempts that
were made in China — and that failed - to readjust the perspectives of the ruling elite" (1007). MLV were not
the only ones to intuit some utility in the comparative study of such historical encounters. For example, in his
article on the rising interdisciplinary relationship between anthropology, astrobiology, and SETI, encouraged by
NASA, Stephen Dick notes the links being forged between historical cultural encounters and potential
extraterrestrial contact by anthropologists within the Drake equation (S.J. Dick, "Anthropology and the search
for extraterrestrial intelligence" (2006) 22 Anthropology Today 2 at 3-7). On the contact rituals described by
MLV and the 'binding' misperceptions of explorers in the transatlantic colonization, see P. Seed, Ceremonies of

76
 Conversely, MLV define total incorporation as the "wholehearted rejection of

traditional culture, and rabid idealization of the new" frequently exemplified by those

recruited from "low status in the weaker society" (1007). Examples of these "total

incorporators" include servants, geographical and linguistic guides acting as intermediaries,

and, more specifically, the "janitors of missionary chapels [who] have become the founders

of influential families" (1007)82. In the more contemporary context discussed by MLV, they

expect that some earth elites will be "realistic enough to expedite the incorporation of a

strange civilization of superior technology" (1007). Among these forward-thinkers, MLV

include "scientific and technical elites," presumably capable of detecting the alien

superiority, attempting to glean "whatever new learning is accessible during the probationary

period" (1007). Aside from these types of individuals, MLV also highlight the role of public

and private research/teaching institutions and "corporate bodies engaged in production or in

weapon development" (1008)83.

In contrast to those opting for partial or total incorporation, MLV also discuss the

rejection or resistance that can be expected. As they note, "many earth groups will see no

place for themselves in the emerging social order" (1008). Depending upon the newly

dominant alien civilization's values and science, such resistant groups might include

religious groups or "devotees of established science and technology [... who] will often

respond in a fury of outraged dignity comparable to the venomous opposition of tribal

medicine men to European knowledge" (1008). Aside from previous religious and scientific

leaders, MLV also contend that those political elites, not 'realistic' enough to begin total

Possession, regarding the misapprehension of such gestures and their meaning(s) for initial and future relations.
I. Wallerstein also references these episodes (albeit interpreted differently) in The Modern World-System.
82
On the role and position of 'go-betweens', see Todorov, Conquest & Greenblatt, Marvelous Possessions.
83
MLV also note to the guided military, political, and constitutional reconstruction of Japan (which included
American drafting of the Japanese Constitution).

77
incorporation, and "who fail to catch the train of progress in time can be counted upon to

offer counter-innovative leadership" (1008). Simultaneously expanding and disaggregating

their scope to a universal, individual level, MLV note the potential for "personal

disorganization [...] listlessness, lethargy, depression, and psychosomatic disorder; or

addictive devotion to alcohol or drugs, or total absorption in gambling and other ritualized

forms of tension concentration and removal" (1008). Anticipating the broken worldview that

would accompany an encounter with the superior alien, MLV fear that "the greatest problem

of earth leaders will be to sustain the self-confidence of a population long accustomed to an

exaggerated image of itself (1008).

Notwithstanding (Western-Euro-American) humanity's fall from the top and move

from the center of previously known existence, MLV are doubtful of the success that they

would like to see follow from the "isolated and probationary" laboratory period for a divided

earth. For MLV, success would be signified through mankind's ability to shift from

"instruments of destructive coercion" to the "intention and capability of operating by

persuasion" (1008). Unfortunately, they see coercion and aggression as "deeply imbedded"

in both human nature and "supported by ideological formations which are among our most

cherished traditions" (1008). Despite this tantalizing comment made without specific

reference, MLV suspect that humans might just as easily exhibit defiance in reaction to alien

persuasion, such as "'secret' scientific projects designed to discover ways of breaking out of

the 'astropolitical reservation'" (1009). MLV expand upon this allusion to reservations and

also discuss potential planet Y missionaries.

More specifically, MLV refer to 'reservations' as a "reminder of one of our well-

known methods of attempting to deal with folk societies" and the "difficulties experienced by

78
strongly self-assertive cultures whose freedom of action has been curtailed" (1009). MLV

use the following example84:

The Apaches are a representative case, particularly the Jacarilla Apaches, who responded to
confinement by repeated attempts at revolt despite the long series of defeats inflicted upon the
tribe. Eventually, of course, the utter futility of a collision course of conduct was
overwhelmingly obvious. The principal immediate result was to internalize aggressive
demands. If the external enemy was no longer available, internal targets were substituted, and
the life of the community was rent asunder by bitter factional struggles that repeatedly broke
into bloody combat.
Even in the case of the bellicose Apache remnants the more fanatical motivations
gradually diminished, and partial incorporation of the outside civilization made headway.
After all, individuals who find defeat utterly intolerable provide an object lesson as well as a
model to their fellow men, especially when the alternative policy of accommodation is
perceived as likely to yield the positive benefits in terms of well-understood and accepted
values. [1009]

Beyond the restrictions of such reservation-style management, MLV suggest that alien planet

Y powers might also attempt "explanatory and suggestive missions" (1009). MLV note that

these aliens "are like the missionaries who sought to penetrate the ends of the earth carrying

ideological and technical prerequisites to the ultimate incorporation of a primitive people into

the larger civilized world" (1009). While they note the protection afforded to such 'visitors'

by "the superior weapons of Christendom" (1009), MLV stress that the "more devoted

missionaries" attempted to minimize these aspects in order to accomplish their ideological

work. The authors expect that planet Y missionaries would conduct themselves similarly,

such that initial earth resentment "would soon become [their] welcome [as] intellectual and

moral allies of many of the most advanced elements among us" (1009). Somewhat akin to

the intermediary position of earth go-betweens, MLV note the problematic role of these

84
Compare with United States Supreme Court Chief Justice Marshall's language in Johnson v Mcintosh (21
U.S. (8 Wheat.) 543 (1823)), above: "the tribes of Indians inhabiting this country were fierce savages, whose
occupation was war"; discussed in R. A. Williams, Jr., Like a Loaded Weapon at 54-55; Manuel 1974, 56-59.

79
'visiting teachers', who would need to guard against disclosing sci-tech knowledge that

'earthmen' might use for "breaking out of the probationary 'concentration camp'" (1010)85.

Another further anticipated problem with this form of alien suggestive incorporation

would arise "if missionaries from Y were to propagate a new and 'true' religion which must

be 'sincerely' accepted as a prerequisite to the removal of restrictions" (1010)86. MLV

expand on the traditional and revamped role of missionaries in the space alien context by

extrapolating "the range of response likely to appear if earthmen are confronted by demands

to abandon 'folk faiths' such as Buddhism or Christianity" (1010). MLV regard the typically

indignant response of establishment priests to be limiting in contrast to the "rewards of

stepping out of our ghetto into the cosmos" (at least for those with "an active mind or an

ambitious outlook") (1010). Presumably, these latter types would view the requisite

"confession of faith" as readily acceptable, given that they have "already become accustomed

to distinguish between affirmations of faith and assertions subject to empirical verification"

(1010). MLV even suggest possible selling points for such 'conversion' through the stress

by spokesmen upon "the relative security of a new status and [...] the 'spiritual' nature of the

higher goods of which the isolated earth has hitherto been deprived" (1010). In summing up

their discussion of alien proselytizing and earth responses to it (including such alien

commodity fetishism), MLV establish a hierarchy between: primitive folk societies happily

isolated and free from interference, isolationist civilizations uneasy with outsider limitations,

These concerns set up a similar debate over possible and desired levels of diffusing science/technology in
African and Asian colonization in the late 1800s, where the dogma was: "Europeans would invent, finance, and
command; Africans and Asians would acculturate, labor, and obey" (Adas, Machines (1989) at 271-272).
86
On this point, aside from missionary conversion and residential school parallels, the enfranchisement
contemplated under the first and subsequent versions of the Indian Act in Canada required similar loss of
status/identity in order to remove the legal incapacities otherwise incumbent upon status Indians (see, e.g.
Harold Cardinal, The Unjust Society (Edmonton: Hurtig, 1969); Manuel, The Fourth World at 21, 124-126,
below). MLV also liken this religious incorporation by aliens to the historical Western European view that
"international relations could only be conducted in an orderly way among Christian powers" (1010).

80
and progressive factions contrary to entrenched ecclesiastical elites fearful of losing

power/prestige (1010-1011). In this respect, MLV invoke the "long history of the 'warfare'

of science and religion - or at least some scientists and some churches" (1011)87.

In a final discussion of responses to earth's probation, MLV expand upon a certain

kind of progressive, incorporating strategy opposed to the "rigidly destructive stance of

[those] who prefer death to surrender" (1011). Specifically, they refer to the disposition of

subjects to "introject" the advanced authority's patterns in order to steal actual power and

enhance symbolic power by "demonstrating equality or superiority" (1011). As examples of

this response, MLV draw upon "cases from the history of defeated peoples" where the

defeated become acquainted with and/or emulate the victor's culture (1011). Their examples

are somewhat slim: Frenchmen and institutions seeking to understand and emulate Germany

after 1871, as well as foreign students studying in Moscow or New York (1011)88. Perhaps

the notion of 'chosen trauma' would be more suggestive as a by-product and driver of past,

present, and future conflict89.

"Permanent Exclusion from Civilization"

MLV next turn their minds to the alternative scenario between destruction and

probation when faced with encountering an alien civilization with superior science and

technology: exclusion. Given the potential threat posed by the earth, MLV imagine more

coercive hypotheticals, "such as an ultimatum requiring all children to be taken away from

87
See, e.g., Dick, Plurality.
One last interesting point that relates to this 'warfare' between science and religion: "The intellectual
technique is already at hand for bridging a seeming gap between any abstract conception whose definition
depends upon faith and a particular statement that records an empirical observation. Reference has been made
above to syntactic systems and to the elasticity with which they may be applied, especially to their formal
equivalence at the highest levels of generality. From this standpoint there is no need of warfare between
science and theology or metaphysics, or between science and science" (1011).
See Vamik D. Volkan, Bloodlines: From Ethnic Pride to Ethnic Terrorism (New York: Farrar, Straus, &
Giroux, 1997); V.D. Volkan, "Transgenerational Transmissions and Chosen Traumas: An Aspect of Large-
Group Identity" (2001) 34 Group Analysis I at 79-97.

81
their parents at the age of five and turned over to the authorities of 'educational cities' who

would have them in full charge for the next twenty years" (1012)90. Expanding on this

scenario, MLV speculate that:

[Planet] Y would of course supply the instructors and take the most promising to Y for higher
education. Contacts of children with their barbarous families would be entirely cut off or
severely curtailed. The brighter youth would be guaranteed jobs elsewhere in the Y system,
or even upon the earth. Possibly an element of choice would be left by permitting ambitious
parents to give a child voluntarily, while retaining another child to possess the local culture
and provide consolation in old age. [1012]

Although there are many historical earth equivalents that fit the above description (as noted),

the pertinent connection for MLV is "the approach by the Portuguese in Angola or

Mozambique" (1012). They go on to state that:

The ruling assumption evidently has been that the natives are to be regarded as children to be
corrected, converted, and made to work; and in a few rare instances to be educated and put in
full possession of European enlightenment and skill. If an African is permitted to become
civilized, he is accepted as an equal, but until then there is no equality. There is no intention
of leading the Africans toward self-government since those who are accepted as fully adult
and civilized already vote and have other political and social rights. The assimilado system
enables an African Christian who speaks Portuguese fluently, and is fairly literate, to apply
for equal status. Only a minority take this step; many who might succeed do not want to cut
memselves off from their own society. If an assimilated person stays in the colonies he
usually finds it difficult to locate a wife; hence many emigrate to Portugal. [1012]

While MLV acknowledge the potential for mass mind control permitting incorporation

without "serious conflict" (1012), they expand the selective adoption exhibited in Portuguese

assimilation of Africans to planet Y's search for suitably adaptable earth inhabitants. While

some might be adopted by the central power, most can remain free as "honorable reliefs] of

an antiquated cosmic experiment [...] free to go ahead developing the earth's folk songs and

dances, and other cultural forms of expression, and breeding an occasional genius able to

participate in higher culture" (1012) . Presenting these farming and preservation tangents as

See Chapter Five, below, and accompanying footnotes.

91
In her discussion of stereotypical presentations of Aboriginal groups and people in Canadian textbooks, Clark
mentions the predominant historical and contemporary types (assuming there is any mention at all) as being:
mere spectators, savage warriors, exotics, problems, uniquely spiritual, protestors, and invisible (see P. Clark,
"Representations of Aboriginal Peoples in English Canadian History Textbooks: Toward Reconciliation" in

82
the best outcomes, MLV leave little room for hope in the scenario of earth's coercive

exclusion.

Strikingly, MLV evoke the possibility of the earth's exclusion being "accompanied

by acts of cruelty reminiscent of the gravest abuses in the past of imperialist and totalitarian

oppression" (1013). Here, MLV point to the scramble for Africa and the "position of the folk

societies of East Africa during the early years of German expansion" (1013). Moving from

policies purportedly seeking only to "protect its traders, investors, settlers, and missionaries"

through mainly private company development, MLV describe a shift caused by unwelcoming

environments, resentful 'natives' and eventually forced labor and poll taxes (1013). MLV

catalogue the deprivations (of land, traditional settlements, labor, food, physical care, and

culture) and their culmination in the "Herero rebellion" (1014). The authors ask whether

'earthmen' would similarly rebel, despite facing disastrous odds, and especially given that

the "revolt of the Hereros and other tribes wiped out two-thirds of the native population"

(aside from German lives, financial costs, the loss of livestock, and the loss of land to white

settlers) (1014). Despite these defeats, MLV find some virtue in the lasting memory of both

German atrocities and 'native' uprising such that "many Africans kept a memory of self-

respect, achieved through rebellion" (1014), which MLV view as a reservoir for future

opportunities to repel outsider powers. Whether or not due to population differences, these

conclusions are contrary to those drawn from the earlier depiction and criticism of Apache

resistance, which emerged as solely negative and self-destructive92.

Elizabeth A. Cole, ed., Teaching the Violent Past: History Education and Reconciliation (Lanham, MD:
Rowman & Littlefield, 2007) at 103). See also Renard (1984).
92
See Robert White-Harvey, "Reservation Geography and the Restoration of Native Self-Government" (1994)
17 Dalhousie L.J. 587; Cole Harris , "How Did Colonialism Dispossess? Comments from an Edge of Empire"
(2004) 94 Annals of the Association ofAmerican Geographers 1 at 165-182. See also: S.H. Razack, ed., Race,
Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002).

83
 Indeed, MLV face this possibility squarely when they note that some have chosen

death rather than slavery, citing "the history of North American nomadic tribes [as] replete

with stories of desperate heroism by hunters and warriors who looked down upon other forms

of life as unsuitable for anyone of spirit, and who sought death in preference to effeminate

and sedentary life" (1014)93. MLV present this story as a warning for the earth elites who

might have to decide between risking "annihilation or [acquiescing] in the hope of ultimate

rejuvenation" (1014). MLV make their own preference known in the following:

The problem has been faced by millions of human beings who have been torn from their
familiar settings, enslaved, and put among work gangs on plantations or in mines; or who
have been degraded to the status of domestic slaves. Those who decided to live and to take a
chance on the emergence of future combinations of factors favorable to freedom have
evidently made the correct decision, if we are to judge from the history of the slave in North
and South America, Africa, Europe, and much of Asia. A similar problem has often
confronted the Jews since their persecution began; and as a whole they have carried on despite
attempts by the surrounding world to impose humiliation and annihilation upon them. [1015]

Given this bleak future and partial history of progressive enslavement, MLV consider

a further alternative (akin to situations of contact with civilizations of similar sci-tech)

wherein "advanced societies like Y are not united in a comprehensive system of public

order" (1015). Given a divided planet Y, MLV counsel "the immemorial strategy of the

weak in seeking to cope with divisible strength" via the potential play of coalitions and

balance-of-power astropolitics (1015). MLV point to the abundance of historical examples

exhibiting arrangements between stronger powers A and C wherein the "partition of [weaker

power] B is a frequent result" (1015). These cases include Russian, English, and American

interests in Persia/Iran as well as the 'effective' partitions of Korea and Germany (1015) .

The final historical lessons from MLV in the exclusion scenario again pit colonizer

progress against colonized (even when imperial) ineffectiveness. More specifically, MLV

93
Again, see Clark 2007 and Renard 1984.
94
See also Jessup & Taubenfeld, Controls for Outer Space.

84
discuss the "story of the Spanish conquest" of Aztec, Mayan, and Incan civilizations (1016),

which cannot be attributed solely to Spanish metal, firearms, horses, and ships. Instead,

MLV focus upon the "factors present in the cultural context that made it impossible for the

native elite elements to mobilize effectively" (1016). MLV catalogue these internal cultural

hurdles:

The small fleet of vessels of Hernan Cortes arrived at Vera Craze in 1519. The Aztec
leadership entertained an expectation of disaster. According to their myth, the culture hero,
Quetzalcoatl, had been expelled from their land and as he sailed into the Caribbean vowed
that he would return - and one of the dates accepted for the event was precisely the year 1519.
Aztec fear and uncertainty had increased as shadowy accounts of white strangers had begun to
filter through in previous years. The leaders had increased by thousands the sacrificial hearts
plucked from living victims whom their priests offered to propitiate the unseen powers. In so
doing they alienated tribes long loyal to their dominion. [1016]

MLV share this tale in order to underscore potential repetition that might replay in future

scenarios of internal divisions among domineering ETI forces (1016)95.

MLV note the similarities to be found in the "fall of the Inca Empire" via connections

with "long-standing expectations, deeply grounded in myth, supplemented by false

assumptions about the impossibility that an invader could receive reinforcements by sea"

(1016). MLV refer to Francisco Pizarro's ability to "immobilize 50,000 warriors in one bold

skirmish" with 130 foot soldiers and 40 cavalry due to Atahualpa's recent victory in a

"fratricidal war" of succession that led him to recall a myth of the return of the gods and

identify it with Pizarro's arrival. As recounted by MLV, after "Pizarro's men raped the

Virgins of the Sun it was obvious that they were not of the gods" but Atahualpa nonetheless

"fell into a trap by appearing as an unarmed guest of Pizarro" due to the "ludicrously small"

size of the Spaniard's army (1016). Consequently, MLV conclude that an important lesson

The near-necessity and recurring role of small, daring groups of men prevailing against the odds in
progressive histories can be seen in my discussion of the IGY (Chapter Four, below) as well as in Loewen, Lies
my teacher told me, and Ward, History in the making, below. On a nation-state level, see: M. Adas, "From
Settler Colony to Global Hegemon: Integrating the Exceptionalist Narrative of the American Experience into
World History" (Dec. 2001) 106 The American Historical Review 5 ml 1692-1720.

85
can be learned from such internal divisions and misplaced beliefs in the event of coercive

alien civilizations possessing superior technology: "Even in the present day of incipient

automation and superexplosives [sic] it will not do to overlook the possibility of distorted

perspectives that can be exploited wittingly or not by small bands of intrepid men" (1016;

emphasis added). In this way, despite the shifting scenarios hashed out more or less

schematically by MLV, it is clear that the history of defeated peoples is both flexible and

rigid. It is flexible insofar as it is capable of fitting into every scenario of domination as the

dominated class of examples. Correspondingly, if not necessarily consistently, it is also rigid

insofar as the defeated peoples remain the same throughout all of the examples and even

where the exemplary peoples are referred to as representations of the dominant class.

Whatever the memory, these lessons from the past do not appear connected to the present

beyond their use as precautions for an extraterrestrial future.

Fortunately, and despite the self-described "grossly simplified" nature of their

analysis given the "vast range of contingencies" (1017), MLV bring their lengthy

speculations on contact with inferior, similar, and superior alien civilizations to a conclusion.

Relevant general factors in all three contingencies are identified as the development level and

predisposition of all "potential earth participants" in the relevant decisionmaking process as

well as the "precise character of the initial contact" (MLV refer in a footnote to the

importance of initial contact in the case of China and the West generally as well as the U.S.

specifically) (1017). Given, and giving themselves, the opportunity in the contingency of

ETI contact, MLV note the potential for "Systematic, comprehensive consideration of

precontact, contact, and postcontact events" leading to policies maximizing public order and

compatible with human and alien dignity (1017). MLV note that such expansive and

86
effective planning "require[s] more than occasional thought" and instead evoke the stepped

and "continuing process of intelligence and appraisal of space relations" (1017).

In historicizing their methodical moment, MLV refer to how "mankind has already

become more aware of the space era" (1017) as well as being "on the threshold of bringing

all the surviving folk societies of the globe into the universal community of science and

technology" (1018). Akin to the sentiments expressed by LB J, Berkner, and Haley, MLV

note how this universalizing moment "is part of the world revolution of our time [...]

characterized by the rising demand of common people everywhere to obtain access to wider

participation" and the shift from "caste" to "mobility" (1018). The key focus for MLV is the

direction of systematic attention to "early-contact" astropolitical relations (1018) in both

originally-held territories (populous territories of the earth and other planets/satellites) and

intermediate arenas (the "closest parallel" being the "seas, islands, or restricted places

somewhat removed from the most populous home bases of an exploring, colonizing people

and the object of exploration") (MLV, 1018-1019). Here, MLV refer to the numerous

"initial contacts [...] on the high seas as Spanish, Portuguese, Dutch, English, or French

vessels made their way into new parts of the globe" (1019). They note how these contacts

have been both friendly and unfriendly and the "subsequent repercussion of these first

perceptions (or misperceptions) on others" (1019)96.

Beyond these meditations on method, MLV also underscore that "the greatest

difficulty of mutual comprehension will arise if new advanced forms of life attach no

importance to values that practically all human societies, whether folk cultures or

civilizations, pursue" (1019). In this statement, MLV finally and slowly turn their attention

96
MLV briefly mention that there "is a third type of arena that can be expected to appear eventually if parts of
earth (or non-earth) are colonized from the mother planet and demand a voice in interplanetary policy" (1019).

87
to the inching possibility of life as they (and we) do not know it (despite the lengthy

discussion of contingencies to the contrary). They also refer to science fiction treatments

(citing C.S. Lewis' Perelandra (1944) in a footnote) concerning psychic powers of mind-

reading or control or other speculations whereby earth and non-earth forms of life prove

lethal or toxic to one another. In the latter respect, MLV strongly urge caution "in the

development of close contact with new environments" (1020). Nonetheless, MLV return and

hew to the framework with which they began their discussion: "an inclusive public order that

dignifies all advanced forms of life" (1020) achieved through persuasive strategies.

In terms of probability, MLV anticipate that the most likely testing ground for such

strategies would first occur through the creation of advanced forms of life on earth via the

"designing of computing machines and with advances in experimental embryology" (1020)97.

For instance, MLV query what happens when "we accord to a 'machine', or a superior

'plant', the 'rights' of participation that have been traditionally attributed to 'man'?"

(1020) . In answering this key question, MLV note that the "conception of 'man', when

stripped of parochial allusions to a single species on a particular planet, refers to advanced

forms of life" (1021). For the authors, the mark of such status is "the possession by

individuals of complex internal systems of integration that make it possible to invent,

See Robinson & White, Envoys of Mankind (e.g. 'genethics'); Robinson, "Transhumans" (2008); Vazquez
1965. MLV also point to: Lasswell, "The Political Science of Science: An Inquiry into the Possible
Reconciliation of Mastery and Freedom," 50 Am. Pol. Sci. Rev. 961 (1956).
98
For example, see again Envoys of Mankind. Also, see W. McDougall, The Heavens and the Earth at 453
(citing historian Bruce Mazlish on the Fourth Discontinuity, wondering how we would react "once a computer
finally spit out, 'Cogito, ergo sum.'" (with the other discontinuities being Copernican, Darwinian, and
Freudian)). From a different perspective discussing the concept of writing 'under erasure' and those who
question the notion of 'presence', Spivak points to similar discontinuities when she states that "Nietzsche puts
'knowing' under erasure; Freud 'the psyche,' and Heidegger, explicitly, 'Being'" (see: Translator's Preface in J.
Derrida, Of Grammatology (Baltimore: Johns Hopkins University Press, corrected edition 1998) at ix-lxxxvii
(transl. De la Grammatologie (Paris: Les Editions Minuit, 1967)). Also see previous note re animals.

88
transmit, and acquire culture" (1021) . Given the developments in computer and embryonic

science and technology, MLV believe that the clarification of policy on these points is

justified for earth purposes and illuminating for outer space contingencies (1021).

Although not contradictory of their definition of advanced forms of life, MLV also

note that the "precondition of responsible conduct is the predisposition to learn from

experience" (1021). They state that when "the norms of our society - or of a more inclusive

and humane public order - can be acquired by education, it matters not whether we call the

acquisitor a 'man', 'plant', or a 'machine'; the prerequisite of responsible participation is

present" (1021). In this formulation, MLV's prescription inverts the aim of Haley's metalaw

(to treat the alien other as they would have us treat them) while simultaneously achieving its

near-impossible effect (to know or learn the alien other as well as it knows itself).

Unfortunately, such education and transmission fits equally well with histories of abduction,

removal, and acculturation in colonial and postcolonial contexts and military surveillance and

reconnaissance in space age contexts100. Ultimately, MLV summarize their immediate

prescriptions as the general goal of "consolidating a world order of human dignity" with

specific goals of international organizations advance-planning for contact with inferior sci-

tech "cultures" while also laying plans to exchange information with similar and superior

See also Fasan, Relations with Alien Intelligences.

100
For example, highlighting the history of abductions, removal, reservations, relocation, and residential
schooling, as contrasted to idealized, conflict-free versions of history, compare the accounts of Canada's
naming and Carrier's sterilized interactions with Donnacona in the booklet produced for citizenship test study
(Citizenship and Immigration Canada's A Look at Canada: 2007 edition (Ottawa: Minister of Public Works and
Government Services Canada, 2007) (online:
http://www.cic.gc.ca/english/resources/publications/look/index.asp)) versus the abduction by Carrier and fallout
related in J.G. Hodgins, School History of Canada and of the other British North American Provinces.
(Montreal: John Lovell, 1865) at 29-30 (see also: B.G. Hoffman, Cabot to Cartier: Sources for a Historical
Ethnography of Northeastern North America 1497-1550 (University of Toronto Press, 1961) at 156 (cited in D.
Johnston at 30-31)).

89
"civilizations" with the approximate guarantee of a provisional or framework agreement in

order to "smooth" the all-important initial contacts (1021)101.

Notably, given the preceding and subsequent argument in my thesis, the advance-

planning and forward-looking speculation of MLV (Haley, and others) attempts to do justice

to the potentially radically Other of extraterrestrial intelligent life. In doing so, they display

varying levels of sensitivity to intercultural encounters, contacts, dispossession, violence, etc.

However, attention is not paid to these always-partial histories for the sake of addressing

contemporary struggles or the living legacies of colonialism in decolonized and settler

societies. Instead, it is with an eye towards preventing the repetition of history, which is

simultaneously always already progressive on the metric of (space) science and technology.

However, by reifying the past and fetishizing the future points of contact, these First World

ETI speculators forego the present while giving the lie to law's ability to emancipate itself

from its own history of always simultaneously constructing itself in and through its

encounters with others. It is possible that some solutions to law's recurrent identity crisis

might emerge through the re-construction or re-constitution afforded by reading some of the

perspectives, theories, and traditions repressed by the law generally and rendered invisible by

MLV and Haley102.

Akin to Jenks' criticism of Haley's basic rule as non-constitutive, Fasan doubts that McDougal et al.'s
proposed principle o f minimum interference, "whether any interference - coercive and therefore harmful
interference - can be a basic rule of Metalaw" (Fasan, Relations, 45).
102
See E.P. Thompson, Whigs and Hunters: the Origin of the Black Act (New York: Pantheon Books, 1975) at
"Consequences and Conclusions" (regarding the non-reductionist view of law/rule of law as both ideology and
struggle in the specific forms of law that uphold themselves "on occasion, by actually being just" at 362).
Compare with Bourdieu's similar, more ambivalent assessment (perhaps due to his further, outsider perspective
on the law compared to more traditional legal scholars) in Bourdieu, "Force of Law" (1987), below.

90
CHAPTER FOUR - COMMUNITIES OF LAW & SCIENCE

Connecting the Dots

From the valorization of discovery and scientific and technological exploration in Haley's

text, and the metric of scientific/technological superiority in MLV's tome, both set to varying

extent against the backdrop of colonial history, the Cold War, and empty outer space full

with the fear of extending terrestrial violence, it is clear that science/technology loom large in

this story. Their roles seem either determinative or leading in space law generally (driving

the law in terms of issues concerning the boundary between air and space as well as

extensions of sovereignty) and especially with respect to legal theory about ETI. However,

the exact nature of this relationship is less certain. For instance, while Beebe put forth an

insecure competition between impotent, but effusive, law versus ascendant

science/technology, the points of contact between the two disciplines generally and in the

works of Haley and MLV cloud such a description.

In the next chapter, I will try to briefly explore what U.S. Senate adviser and policy

expert Eilene Galloway has called the 'community of law and science' in order to trouble any

straightforward oppositions or alliances. Following this discussion, I turn to some potential

alternatives from a Third World perspective to highlight the shortcomings and blind spots in

the natural law and policy-oriented ETI speculations detailed above. Aside from the

reasoning in both Haley and, much more so, MLV's speculations about ETI, I take this

approach in part because of the intuition that it is not science that presents a threat or

adversary/opposition to the law (as a discipline of sovereigns, institutions, practitioners,

academics, theories, sub-disciplines, etc.). As will be argued, these two disciplines can often

91
be seen to work in tandem (as per space law, ETI legal theory, the 'verifiability' of the IGY,

and 'falsification' of the Bogota Declaration). Unfortunately, the microcosmic, sovereigntist

Third World example of the Bogota Declaration fails to succeed in the wake of Haley and

MLV's deficits, partially embodied in the (at least) space age community of law and science.

Instead, from my reading, Fourth World and indigenous legal traditions and theories might

spell a much more serious, troubling, but also promising, moment to the law and its empire,

rule, and legitimacy . First, however, I will discuss this potential community between law

and science, the example of the 'successful' IGY, and the Third World 'failure' of the

Equatorial Countries' Bogota Declaration.

The Community of Law and Science?

Eilene Galloway's brief presentation at the First Space Colloquium (organized by Andrew

Haley) of the International Astronautical Federation concerned, and was titled, "The

Community of Law and Science" . Like others noting the precedence of science before

law, if not necessarily their community, Galloway links the development of the latter to the

invention of the former. Most interestingly, the community between the two fields or

disciplines emerges through the concept of control: "Space may be illimitable but the amount

of space man can control by scientific invention and by rules and regulations has limitations.

The perimeters of our limitations will change with the development of scientific facts and

But see Borrows 2008 at 140-142 (re need to avoid temptation to paint Canadian common and civil law
traditions as positivist and indigenous legal traditions (ILT) as stereotypically, solely cultural, given the deep
cultural roots of the two most dominant Canadian legal traditions and the unwritten cultural assumptions
informing them). As discussed in Chapter Five and my conclusion below, I have clearly found it difficult to
resist these temptations in the context of filling the gaps of Haley and MLV's First World ETI legal theory.
104
Eilene Galloway, "The Community of Law and Science" in First Space Colloquium (1958), 59-62
["Galloway"]. Galloway was an adviser and special consultant to the Special Committee on Space and
Astronautics and the Committee on Aeronautical and Space Sciences (U.S. Senate) who wrote and advised
extensively at the time. See: N. Jasentuliyana, Space Law: Development and Scope (Praeger: Westport,
Connecticut, 1992) at Dedication, concluding chapter, and list of publications.

92
with our ability to control these facts in their impact upon society" (59) . In contemplating

the development and effect of these scientific facts, Galloway argues for the need to relate

individual, single facts to the sum body or universal knowledge that they constitute and

reveal (citing Justice Holmes in 1886: "To be master of any branch of knowledge, you must

master those which lie next to it; and thus to know anything you must know all" (59))106.

Galloway is aware that the ideal pursuit of such total, integrated knowledge is threatened by

the increased, but necessary and inevitable, specialization characterizing contemporary

scientific experimentation (59). However, she warns that "without concomitant development

of the interaction of related fields of knowledge, we shall lack wisdom in controlling general

problems which affect the destiny of all mankind" (59).

Of course, in the context of this thesis, the First Space Colloquium, and Galloway's

paper, outer space could be a prime example of a problem affecting all mankind107. Without

truly interdisciplinary thinking, Galloway cautions that our interplanetary thinking "will be

earthbound by tradition and precedent at a time when creative predictions should enable us to

keep international law in pace with scientific achievement" (59). It is important, I think, that

Galloway presents the problem here as one of pace, which does not necessarily preclude the

purported communities of law and science (which point to a shared community (the people)

and a shared purpose (controlling both the facts (nature/the environment) and the people)).

Even if only a myth (as forcefully argued by Tamanaha), it can still be constitutive. This

5
This formulation conforms almost exactly with the theories of law as a mirror (reflecting society) and order-
maintainer (absorbing shocks of change, e.g. new sci-tech, etc.) painstakingly historicized and criticized in
Brian Z. Tamanaha, A General Jurisprudence of Law and Society (Oxford: Oxford University Press 2001).
106
O.W. Holmes, Collected Legal Papers: "The Profession of the Law" (New York: Harcourt, Brace, 1937), 30.
107
For a recent invocation of the interdisciplinary problem of human activities in outer space, including the
potential of human migration and extraterrestrial life, see the Vienna Vision on Humans in Outer Space (2007),
arising from the joint 2007 Vienna Conference on "Humans in Outer Space — Interdisciplinary Odysseys" (by
the European Science Foundation (ESF), the European Space Agency (ESA) & the European Space Policy
Institute (ESPI)) (online: http://www.esf.org/research-areas/space/activities/inif-activities/follow-up-hios-
vienna-conference.html).

93
reading is supported by Galloway's assertion of the mutual interests and reciprocal duties of

science to inform and the law to absorb, with both helping to maintain order and promote

welfare:

Together, these professions have the same objective - the creation of conditions which will
promote the general welfare and protect the people in their 'right to life, liberty, and the
pursuit of happiness.' [...] The revolution in science and technology imposes an obligation
on the scientific community to keep the legal profession informed of the latest developments.
National and international lawyers have the matching responsibility of absorbing new facts
into the framework of social order. The mutual interests of science and law make their
development interdependent.

Rather than adversarial or competitive, these two disciplines appear to be symbiotic and

mutually sustaining . Additionally, and as noted at the outset of her presentation, the law's

jurisdiction expands with the successful development of new facts by science109 (e.g. the

For example, on the relationship between philosophers and practising scientists, see John Locke's 'Epistle to
the Reader' in An Essay Concerning Human Understanding (1690): "The commonwealth of learning is not at
this time without master-builders, whose mighty designs, in advancing the sciences, will leave lasting
monuments to the admiration of posterity: but every one must not hope to be a Boyle or a Sydenham; and in an
age that produces such masters as the great Huygenius and the incomparable Mr. Newton, with some others of
that strain, it is ambition enough to be employed as an under-labourer in clearing the ground a little, and
removing some of the rubbish that lies in the way to knowledge;- which certainly had been very much more
advanced in the world, if the endeavours of ingenious and industrious men had not been much cumbered with
the learned but frivolous use of uncouth, affected, or unintelligible terms, introduced into the sciences, and there
made an art of, to that degree that Philosophy, which is nothing but the true knowledge of things, was thought
unfit or incapable to be brought into well-bred company and polite conversation." [emphasis added]. See also.
Steve Fuller, Kuhn vs. Popper: the Struggle for the Soul of Science (Cambridge: Icon Books, 2003). Fuller
criticizes Kuhn as the "crucial figure" in the transition from Popper's "ideal conception of science that would
call into question much of what scientists normally do" (85) to "Kuhn's valorization of 'normal science', which
locates the collective genius of science in its occasional ability to eke out innovation from a very narrow set of
epistemic constraints" (87) and leads to a "heads-down 'organisational man' approach to science and the
philosophy of science" (88) due in large part, according to Fuller, to the Cold War context and the role of
warfare. For a similar analysis of the problem of specialized/integrated 'heads-down' science (also invoking the
image of William H. Whyte's organization man), see Robert L. Barre, "Some Social Implications of Organizing
for a Space Effort" in Mortimer D. Schwartz, Ed., Proceedings of the Conference on Space Science and Space
Law (South Hackensack, N.J.: Fred B. Rothman & Co., 1964) at 115. Oddly, after invoking the specter of such
men/science, Barre nonemeless comes to an opposite, optimistic conclusion about the prospects for progressive
freedom in space through the civil-military-academic-industrial space complex (119).
For a similar point, see Rajagopal and the 'invention' of poverty measures and standards (discussed below)
in order to institute, re-orient, and maintain institutions. As well, de Sousa Santos describes law as an "alter
ego" to science (as opposed to other oppositional accounts, e.g. Foucault and incompatibility between diffuse
disciplinary power & centralized juridical power) (at 3-5). I am indebted to Professor Barbara Stark (Hofstra
Law School) and her fascinating presentation "Across the Universe" at the 2008 Osgoode GLSA Conference,
which first alerted me to de Sousa Santos' formulation and put forward international law as the alter ego of
physics (both aspiring to universality, from Grotius/Newton to the UN Charter/atomic bomb to the remodeled
UN/quantum mechanics (the CERN particle accelerator)). Finally, the community of law and science as seen
through the lens of 'facts' looks rather familiar from litigation (and other) perspectives not just as a means of

94
scientific experiment in the atmosphere discovering the fact of the Van Allen radiation belts

surrounding the earth and limiting law's area unless later scientific solutions or penetration

would mean that "the jurisdiction that could be defined by law would be extended" (59)).

Given the need, for their own sakes and for their function in society, to surmount the

specialization-led lag between law and science, Galloway asserts that we can do more than

just wait "for international law to lag behind scientific progress as human experience

revealed, case by case, what we should permit or prohibit" (60). Instead, due to our

knowledge and foresight, shock-absorbing law can more quickly accommodate new facts as

science finds them110. As one form of international cooperation in the heroic mode,

Galloway offers the IGY as a model for organizing expert individuals, associations,

academies, societies, and official state institutions:

One type of organization that might be considered as a model is that of the International
Geophysical Year. Individual scientists, volunteers, semi-official and governmental
organizations concentrated their talents toward the attainment of certain ends within a definite
period of time. This enterprise has aroused the admiration and respect of world opinion
because of its successful example in international cooperation. [61]111

expansion, but in order to simply maintain the law's bailiwick. For example, see P. Bourdieu, "The force of
law: toward a sociology of the juridical field." (1987) 38 Hastings Law Journal 5, 805-853 (epigraph: "Da mihi
factum, dabo tibijus"; "Give me the facts, and I'll give you the law") (emphasis added).
110
Weighing in on the debate concerning jurisdiction between air and space, championed by John Cobb Cooper
of Chicago Convention fame and the McGill IASL, Galloway notes that an internally accepted common
terminology would help promote practical agreements and reduce confusion (60). Generally, Galloway's hope
about our foresight and fore-thought sounds akin to the speculation, and rationales for it, espoused in my
introduction and Haley/MLV's texts. Also, see C. Wilfred Jenks, Space Law (New York: Frederick A. Praeger,
1965) [dedicated to "Philip C. Jessup, Pioneer of Law and Justice in Space as on Earth"] at Chapter Ten, 97-101
("The Literature of Space Law before 1957). In this almost-encyclopedic work, as comprehensive for the early
space law literature as Fasan's book was for Metalaw writing, Jenks mentions that "the literature of space law
begins with a paper entitled Das Weltraumrecht — Ein problem der Raumfahrt written by Vladimir Mandl in
1932 which argued that it was not premature to examine the legal problems which space travel would pose"
(97). Even earlier speculations exist (Dick, Plurality). For example, see Renard (1984) at 67 ("Z 'Homme dans
la lune ou Relation d'un voyage a cet astre par Domingo Gonzales (1638), by the English bishop Francis
Godwin; La Decouverte d'un monde dans la lune (1638), by another English bishop, John Wilkins; Les Etats et
Empires de la Lune et du Soleil (1657, 1662), by Cyrano de Bergerac, Micromegas (1652) in which Voltaire
creates an inhabitant of Sirius who travels from planet to planet").
111
Compare with Jenks, Space Law, regarding the limits of scientific co-operation: "It cannot eliminate the
military element from space; it cannot furnish the minimum of legal regulation [...] No scientist should, and
responsible scientists do not, cherish the illusion that space affords a new opportunity for the withering away of
the State before the magic of goodwill among scientists" (39; emphasis added). Instead, given the government
venture of space programs, military operation of launching facilities, and large commercial investment and

95
Galloway contextualizes this potential mode of international cooperation by describing a

professional convergence in training, learning, and integration since the Atomic bomb

project, noting that "Satellites can be tracked not only for the purpose of scientific evaluation,

but also for their impact upon society and world order" (61). Tracking of the latter kind

would fall to the lawyers, whose training includes the evaluation of "the significance of facts

which make up the social fabric" (61), which Galloway emphasizes is usually not part of

scientific training (61). Noting the 1945 advent of atomic energy and the drawing together of

law and science, Galloway points out the increased interest of scientists in problems of

national and international government (61). Rather than, for instance, love, Galloway

surmises that "All that is needed is a concept of integrating our knowledge and channeling

effort through an organization which covers the different kinds of expertise which exist

throughout the world" (61). Of course, not wishing to overstate the case, she acknowledges

that legal lag or gap is "almost inevitable" given, on the one hand, the nature of periods of

scientific experimentation "delaying the crystallization of rules and regulations" (62) and, on

the other hand, the need for law to "ultimately rest upon acceptance by the people who are

subject to its controls" (62).

This distinction is an important one. Indeed, while law's requisite legitimacy

(acceptance by the controlled of the controller's controls) is said, in part, to define, delay, and

ground it as a means of control , science apparently functions outside of such limits and

simply against its progressive ability to penetrate the secrets or mysteries of nature, our

involvement, Jenks concludes that only "a close partnership of policy, law, science and technology" can
determine the scope and content of requisite legal obligations (39-40).
112
Of course, this view is not uncontroversial. See, for example, Tamanaha 2001 at 58-68 (re myth of consent).

96
environment, etc . Put more briefly, while the law must answer to its community of

control, science, apparently, does not. Despite this 'almost inevitable' obstacle to truly

integrated knowledge, Galloway's response is assured. Noting the typical nature of such

problems for the medical profession, she also points to the development of nuclear energy,

which required an outpouring of information to "help educate the people and the legislators"

about atomic energy (62). Galloway notes that the current world-wide thirst for space

knowledge, due to the successful artificial earth satellites, requires such education, which in

turn serves as the best way to garner public support since the "great cost of space exploration

means that it is a matter for government appropriations" (62). In this way, Galloway's

argument for a pre-planned "body of legal thought" analyzing the "political, military, legal

and social problems which will be created by space exploration" (62) does not necessarily

bespeak legal insecurity so much as a structurally subsequent, but no less mutually

sustaining, constitutive, and interdependent relationship114. At the very least, without

mobilizing popular and political support through education and (as MLV would term it) the

processes of authoritative decision-making, there would be no money for Big Science115.

Law's legitimacy can thus absorb (or appear to absorb) the shocks of scientific facts while

See Preston, Grounding Knowledge, above; Steve Fuller, Science (Buckingham: Open Univ. Press, 1997).
114
As noted earlier in my thesis, Beebe made the opposite argument and, in fact, cites Galloway's reference to
Arthur C. Clarke's "The Challenge of the Spaceship" (1946) as supporting evidence ("Morals and ethics must
not lag behind science, otherwise the social system will breed poisons which will cause its own destruction.")
(Clarke was a famous science fiction writer also known for 'prophetically' positing geosynchronous satellite
orbit well in advance of the actual feat (see online: http://rescommunis.wordpress.com/2008/03/27/haley-
archive-arthur-c-clarke-august-1956-letter-on-gps-dbs-and-more/) [Clarke died on March 19,2008, in his
adopted home of Sri Lanka]. It seems unlikely that law could be said to even appear to participate in the
counter-cultural anti-science movement, given the potential community described here, the likely community
between scientists and codifiers through the need for funding/legitimacy, and even the community in ETI
speculation between otherwise purportedly opposing perspectives in Haley's natural law and MLV's positivist
policy-science. From most perspectives, their either mutual or respective empires/jurisdictions seem to be able
to expand witiiout real cost, and with arguable benefit, to one another (i.e. a type of Parefo-superior intellectual
interdisciplinarity).
115
Justice Weeramantry recognized this link and emphasized its value as the entry point for democratizing
science: Human Rights and Scientific and Technological Development (1990) at 12-14.

97
sanctioning the development of further, newer (more shocking?) scientific facts for human

progress.

IGY 1957-1958: 'The Largest Fact-Finding Enterprise Ever Undertaken'

A surprising number of Galloway's assertions, and my inferences from them are borne, out in

the observations of her proposed international model by the non-lawyer scientist-participants

and media-observers themselves. It is hard to overestimate the esteem in which the

participants and observers held the IGY, which took place from July 1,1957, to December

31,1958, and comprised the global and coordinated efforts of about 5,000 to 60,000

scientists from 66-67 countries (depending upon whose account you read) 116 . The IGY

appears to be for geophysics what 1492 appears to be for the New World/Age of

Discovery/high school textbooks and what the Atomic bomb and Sputnik (launched on

October 4, 1957, during the IGY) appear to be for the Nuclear and Space Ages117. Taking

place at the time it did due to the maximum/peak sunspot activity occurring during the Year,

the IGY was actually seven years in the making. Almost every account of the IGY refers to

its genesis on a fateful evening in 1950, in the Maryland suburbs at James Van Allen's home

S. Chapman, IGY: year of discovery; the story of the International Geophysical Year (Ann Arbor: University
of Michigan Press, 1959) [Chapman or "Year of Discovery"]; R. Fraser, Once round the sun: the story of the
International Geophysical Year, 1957-58 (London: Hodder & Stoughton, 1957) [Fraser or "Once round the
sun"]; A. Marshack, The world in space: the story of the International Geophysical Year (New York: T. Nelson,
1958) [Marshack or "World In Space"]; W. Sullivan, Assault on the unknown: the International Geophysical
Year (New York: McGraw-Hill, 1961) [Sullivan or "Assault"]; J. T. Wilson, I. G. Y.: the year of the new moons
(Toronto: Longmans, 1961) [Wilson or "New Moons"]; Robert G. Fleagle, "From the International Geophysical
Year to Global Change" (1992) 30 Review of Geophysics 4, 305-313; F.L. Korsmo, "Science in the Cold War:
The Legacy of the International Geophysical Year" National Science Foundation Tokyo Report, Special
Scientific Report #98-07 (April 7, 1998) (online: www.nsf.gov/pubs/1998/int9814/ssr9807.doc]; J. Spiller, "Re-
Imagining United States Antarctic Research as a Defining Endeavor of a Deserving World Leader: 1957-1991"
(2004) 13 Public Understanding of Science 31-53.
117
In his Polk award-winning coverage of the IGY collected in his book Assault on the Unknown, Walter
Sullivan (lead science writer for the New York Times) proclaims that "1957 will be to the schoolchildren of the
world what 1492 is to young Americans today. In 1492 the Old World opened the door to the New; in 1957
man opened the door to the solar system, and perhaps beyond" (3). Sullivan also cites Hugh Odishaw (chiefly
responsible for organizing and fundraising for the American IGY activities) describing the IGY as "the single
most significant peaceful activity of mankind since the Renaissance and the Copernican Revolution" (4).

98
(hosting, among others, Sydney Chapman1 8 from England and Lloyd Berkner), where the

gathered scientists broached and agreed upon broaching the plan for a third installment of the

International Polar Year to the international scientific community (IPY 1 in 1882; IPY 2 in

1932 ). Given the historical name and focus, the Year was first floated as a research project

dealing with the polar regions only, but was revised to include the whole earth after an

initially lukewarm response (Chapman 101).

Emerging at the time of successful satellite launches and telecommunications

revolutions, including international direct dialing, this 'whole earth' (one world?) perspective

demonstrates the level of globalization of the time and changes within science harkening to

Galloway's advocacy for a total, integrated knowledge. For example, in the IGY history by

Dr. Ronald Fraser, Administrative Secretary of the ICSU {Once round the sun), he provides a

definition of geophysics and its necessary interdisciplinarity, which simultaneously requires

both specialization and integration:

"Geophysics is a single science — the science of the physics of the earth and its atmosphere.
But no one man can command all the skills which are needed for the scientific exploration of
his environment. So we find that the men and women who are actually carrying out the
thousands of different observations called for in the overall programme of the International
Geophysical Year tend to fall into a number of groups - astronomers, meteorologists,

President of the Organizing Committee for the IGY (Bureau du Comite Special de l'Annee Geophysique
Internationale 1957-58 (CSAGI)). In his foreword to Sydney Chapman's history of the IGY, James A. Van
Allen notes that Chapman's book is an exception to the observation that "the history of scientific achievement is
seldom written by the major participants themselves."
119
See the current IPY 2007-2008 (actually 2007-2009 to accommodate research on both poles) (online:
http://www.ipy.org/): "A Framework for the International Polar Year 2007-2008" by the ICSU IPY 2007-2008
Planning Group (International Council for Science, 2004), online: http://www.ipv.org/: current Projects,
including Northern Peoples for the first time in IPY history, Ethical Research Principles, and the specific project
on "State-induced population movements in the circumpolar North in the 20 and 21 st centuries (online:
http://www.ipy.org/index.php7/ipy/detail/moved_by_the_state/). Regarding earlier Arctic relocations in the
Canadian context, see: RCAP at http://www.ainc-inac.gc.ca/ch/rcap/sg/sg29_e.htrnl: The High Arctic
Relocation: A Report On The 1953-55 Relocation (Ottawa: RCAP, 1994); Alan R. Marcus, Out in the cold: the
legacy of Canada's Jnuit relocation experiment in the high Arctic (Copenhagen: IWGIA, 1992); Frank J. Tester
& Peter Kulchyski, Tammarniit (Mistakes): Inuit Relocation in the Eastern Arctic, 1939-63 (Vancouver: UBC
Press, 1994); A.R. Marcus, Relocating Eden: the Image and Politics of Inuit Exile in the Canadian Arctic
(Hanover, N.H.: University Press of New England, 1995). See also York's Center for Refugee Studies on the
"Ethics of Development-Induced Displacement" (EDID) (online: http://www.edid.yorku.ca/).

99
 geomagneticians, and so on - each group intent on widening die knowledge already gained in
his own particular scientific discipline." [Fraser, Once round the sun, 129]120

The theme of specialization and integration relates to the rocket industry and satellite projects

as well. However, before getting to these issues, the importance of funding should not be

understated. Indeed, as Professor Chapman notes in his Year of Discovery:

The greatness and simplicity of the basic purpose of the IGY - the common study of our
planet by all nations for the benefit of all - made a strong appeal. Wide public interest was
aroused in it by the press. The result was financial support on a scale more generous and
121
adequate than any such international scientific enterprise had ever before gained. [102]

Without such support and mobilization, the IGY would not have been the unmitigated

success that it appears to be today. Indeed, Fraser dramatizes part of the genesis of this

'common study by all nations for the benefit of all' at the September 1954 organizing

committee meeting of 36 nations in Rome:

No one who was present at that gathering can ever forget the scene: of the great hall [...] with
its dado of Carrera marble, its murals by Antonio Achilli: Galileo, Volta, Galvani, Marconi
looking down on men of all nations - white, brown, yellow, Russians from Moscow and the
Caucasus - working together with complete singleness of purpose to a common end. [101]

Because it was still a relatively new gathering of disciplines, Marshack notes that "[fjhere is at present a
scarcity of geophysicists and many universities do not include this science in their curricula" (5). He further
notes an additional impetus to the study of geophysical phenomena arising WWII when "world-wide military
and naval operations and new radio and radar use hinted at geophysical patterns and solar-terrestrial relations
not understood" (Marshack 11). This interest included the difficulties of negotiating the wind, weather, and
waves for the coordinated landing and invasion of Normandy as well as predicting dangerous tidal waves
(Marshack 29). Ultimately, however, Marshack notes that the "primary purpose of this great scientific study,
however, is the gathering of facts" (12) with the most spectacular program being the launch of satellites.
Sullivan also points to the simultaneously shrinking & expanding effects of the IGY: "In studying itself, the
world has grown closer together. The immeasurable enlargement of man's horizons through IGY exploration of
space, the atmosphere, the seas, the poles, and the earth's interior has stirred the layman as well as the scientists.
We have begun to learn that hurricane, drought, and pestilence know no national frontiers and we have come a
little closer to a cosmic view of our planet — a water-covered sphere, crusted here and there with continents
upon which there is the fragile green hue of life." (Sullivan 418).
121
In regard to the 'selling' of science that was going on, Korsmo notes that: "This marketing effort involved
private corporations (including General Electric and IBM), television stations, teacher education
institutes, curriculum developers, motion picture companies, and other media. The U.S. National
Committee strove to represent IGY as a civilian and international scientific program and resisted the Pentagon's
portrayal of the earth satellite program as a military operation. Posters, films, teaching kits, exhibits, and
brochures exclaimed the wonders of the earth and the benefits of science to humanity. The linkages between
research and education, public and private support, nationalist pride and international knowledge received
explicit articulation during the IGY. These linkages continued to characterize the U.S. space program, and today
both NASA and NSF have well developed educational and public relations components." [Korsmo; citations
omitted; emphasis added]

100
Conversely, although not specifically aimed at historicizing the I G Y , W a l t e r McDougall

paints a completely different picture than that o f a c o m m o n study b y all nations for the

benefit o f all, given the backdrop need for espionage in The Heavens and the Earth:

In these few pages the RAND Corporation spelled out the central political problem attending
the birth of the Space Age. The new Super-powers were locked in Cold War. One of the
contestants was an open society, the other secret and closed. A great premium was thus
attached to reliable surveillance techniques by the open society. Reconnaissance satellites
offered such a technique. But just as important as developing such technology was
establishing the legal right to use it. [109] [... ]

The legal risk elucidated by the RAND Corporation in 1950 stemmed from the likelihood of
vigorous Soviet protest against the hoped-for right of satellite overflight. How could the
United States establish the 'freedom of space'? How to finesse a satellite into orbit without
anyone objecting and thus set a legal precedent for subsequent space activities? The
suggestion made by RAND was to start with an innocuous, nonmilitary, scientific 'test'
satellite launched on a trajectory that avoided the Soviet Union. By the time the Killian Panel
reported and the USAF began its final review of WS-117L [proposed American strategic
satellite system], the occasion for such an 'innocuous' solution had presented itself. On
October 4, 1954, the Special Committee for the International Geophysical Year (CSAGI)
recommended that governments try to launch earth satellites in the interest of global science.
[118][...]

Because of its international nature, not only the NSF, National Science Board, and the Science
Advisory Committee, but the CIA, State, NSC, BoB, and the White House all had to clear the
project. [...] But at these higher levels of government, considerations other than science and
prestige already weighed heavily. For unbeknownst to the IGY people, there were now two
goals of high national importance - establishing legality for satellite overflight as well as
being first into space - and three proposals to open the Space Age - Project Orbiter, the IGY
proposal, and WS-117L. [W. McDougall 119-120; emphasis added]

The uncoordinated, but complementary, progression painted above does not conflict with the

'heads-down' scientist's perception of the same events. For example, in describing the easy,

efficient agreement at the 1951 ICSU meeting in Washington, D.C., to explore and set in

motion the IGY, Fraser notes that there was: "No need for panels of experts - they were all

there on the spot, within the organisation [sic]. No call for a board of advisers: the men who

backed the advice of the originators of the new idea were their own judges... Benjamin

Franklin would have approved." [100-101; original italics].

In light of the above, it is not clear whether this lack of need or call for oversight is

good and natural, in and of itself, or due, in part, to construction by the political
funders/overseers in combination with a lack of scientific literacy/public understanding of

science. The latter points would merely feed back into the loop of science's potentially

apolitical/extra-legal vision of itself ("just the facts"). In this way, each discipline could

pretend not to know or care about what the other does (science studies nature and law/politics

governs men) while simultaneously serving to maintain and constitute the other discipline

through scrupulous boundary-drawing.

Of course, aside from the information provide by McDougall, the IGY was never as

discrete as some presentations of it seem to suggest. Indeed, throughout all of the scientist or

journalist-authored popular IGY histories, there is a celebration of the coming-together of

scientists from all nations at the height of the Cold War. However, these histories cannot

ignore the awkward fact of two Chinas, which emerges in the more celebratory histories as at

least one, if not the only, 'political' blemish upon the IGY122. Additionally, as seen both

above and below, Berkner remains keenly aware of the utility for both pure science and its

integration with geopolitical aims and ends. Indeed, consistent with his writings, and perhaps

contrary to McDougall's claim that the overflight needs and reconnaissance realities were

unknown to the IGY's scientist-proponents, Korsmo suggests that Berkner was well aware of

the stakes in his support of the IGY123. Finally, the dual-purpose nature of much of the

science and technology cannot be ignored (and was not at the time):12

"Modern rocketry began with the German V2 during World War II. The V2 was the brain-
child of Werner von Braun, a man who was then, and now as a United States citizen still is,
primarily interested in rockets as vehicles for space flight. In 1945 the United States acquired
upwards of a hundred V2's, together with their inventor, and the direct scientific exploration
of the upper atmosphere was launched with the first V2 to ascend from White Sands, New

122
Although the PRC did prepare (and execute) its experiments, it apparently did not participate with
international aspects of the IGY due to the inclusion of Taiwan (Chapman 107).
123
See Korsmo, above.
124
See Chapman at 105. For a fascinating account of the search and retrieval of von Braun, his rockets, and his
buried research prior to the Soviet efforts to do the same, see W. McDougall at 44-45.

102
 Mexico, on April 16, 1946, carrying instruments for the observation of man's environment,
instead of high explosives, in its nose.

You could say that here the sword had been beaten into a ploughshare. But that isn't really
the point. The fact of the matter is that almost every scientific discovery is a two-edged
sword, and you can't blame it on God if man insists on honing the wrong edge. As far as
rockets (or indeed satellites) are concerned, the choice is still open to mankind: whether to
continue to use them for scientific exploration, or to go hunting the Snark with them instead."
[Fraser 145]

Aside from these issues on the American side, there were also apparent duality concerns on

the Soviet side generally and with respect to fracturing the image of an apolitical, or purely

scientific IGY125.

Science, Law, and Space: It's A Small World After All

The issue of rocketry and space exploration is one of the better examples of the

integrated specialization also raised in the new study of geophysics and Galloway, Haley,

MLV and others' aspiration for a one-world mentality and total knowledge raised against the

reality or appearance of a lag or gap between natural and social sciences/humanities. In both

Professor J. Tuzo Wilson and Myres McDougal's opinions, there is no competition between,

respectively, science and the humanities and (space) science and the law (of outer space) .

Taubenfeld (co-author of Controls for Outer Space with P. Jessup), noted in another context the limitations
to IGY cooperation and information sharing from the outset (in addition to the China issue): "While many
examples of co-operative efforts in space activities can be found under the IGY, there were limitations from
the outset as to the extent of co-operation achieved. For instance, no full agreement was ever reached on the
amount or type of information to be supplied by launchers to the world data centres, a significant gap in a
supposedly international research program. This appears to have been due primarily to the fact that the
Russians always regarded the launching as an integral part of their domestic military program and were simply
unwilling to give away the primary data which might reveal military rocket capabilities or the codes used for
telemetering information from the satellites. The United States, nevertheless, supplied much of the data
obtained from its satellites, which, in turn, led to at least some Congressional hints of disapproval." [Taubenfeld
in Schwartz, Proceedings (1964) at 22-23; emphasis added]. See also Jenks at 39 ("magic of goodwill").
J. Tuzo Wilson, IGY History at 327-328. For instance, commenting on the supposed competition between
the humanities/social sciences and natural sciences, Wilson states that: "This is nonsense. Scientists are
concerned not with the conduct of society but with the study and control of nature. Far from undermining the
humanities, scientists, by helping increased populations to survive and making society ever more complex, have
made the role of the humanist and the social scientist more difficult but also more important than ever before.
Indeed, the task of organizing society is becoming so difficult that the social scientist is increasingly in need of
help from (but not substitution by) the natural scientist. The ideal man should be something of each. [...] This
is where the sciences and the humanities meet, in the realization that each needs the other, that both are integral
parts of our complex international society and our highly developed culture." [Wilson 327-328] For Wilson,
 In his contribution to a conference on space science and space law, Myres McDougal

begins by attacking the very premise of a gap between law and science127. Specifically, he

questions the notion of the utility of science in the improvement of space law based, in part,

upon likely inadequate integrations of science as well as the lack of a common criterion or

'yardstick' between the two disciplines, which only leads, in McDougal's estimation,

towards " a false sense of insecurity" for lawyers and gross oversimplification for everyone

comparable to the "Marxian dialectic" emphasizing one factor beyond all others in social

change (151) . Indeed, he regards the whole notion of "some kind of a 'lag' or 'gap'

between scientific and technological developments, on the one hand, and law or legal

processes, on the other" to be a "metaphysician's will-of-the-wisp" (151).129 The balance of

his discussion mirrors the analysis in his joint work with MLV in Law and Public Order in

Space130. From the above analysis, it is clear that science and technology undoubtedly plays

a shifting, but ever-present role in the social process calculus, or policy-oriented

this balanced relationship suggests an expanded role for science in international relations: "To the extent that
the IGY showed that scientists could play a fruitful role in international negotiations and could strengthen
international organizations such as ICSU and its parent body UNESCO, so it may have helped to achieve a
better balance between humanism and science. It is imperative to consider the role of science in international
affairs." [Wilson 327-328]
127
Myres S. McDougal, Keynote, "Law and Public Order in Space" in Mortimer D. Schwartz, Ed.,
Proceedings of the Conference on Space Science and Space Law (1963) (South Hackensack, N.J.: Fred B.
Rothman& Co., 1964) at 151-176.
128
Granting the mediation of group authorship, the technocentric emphasis on this one factor beyond all others
in MLV's chapter on 'advanced forms of non-earth life' should not go unnoticed.
129
But see discussion of Bogota Declaration and geostationary orbit below.
130
As Schwartz notes in an editorial footnote: "Apart from the introductory paragraphs, this presentation is
adapted from an earlier address. The substance of Professor McDougal's remarks was first delivered at
Northwestern University Law School on May 1 and 2,1963. Professor McDougal's address on that occasion,
which opened the Conference, has been published in the November-December 1963 issue of the Northwestern
University Law Review (Volume 58, Issue No. 5)" [151]. For instance, McDougal sees no "lawless cosmos" as
some fear, but instead resort being made by "effective power elites who have found it economic to maintain the
comprehensive process of authoritative decision on earth, which we call international law" to the "United
Nations, to the inherited earth process" (155). In discussing the various past and present claims made regarding
numerous topics, McDougal added new paragraph or sentence regarding the role of improving science and/or
technology in resolving or clarifying such claims (i.e. more or less likely through, e.g., indirect means
("improvement of facilities for communication" in order to advance the world community's constitutive process
of decision (159)) or more direct means ("Advancing scientific and technological knowledge would not appear
likely to change the general nature of this problem" of sovereignty ('exclusive competence')) (164-165).
jurisprudence, exercised by McDougal. As noted in his introduction, the key point seems to

be more that sci-tech emerges or remains as merely one among many relevant factors (and,

contrary to his joint work with Lasswell and Vlasic, not even the most important one after the

fact of the initial innovation or development).

Taking insight from Galloway, Haley, McDougal, and others that there need not be a

gap, lag, or competition between law and science, what would their potential community

look like? As seen above, the division of powers between the two might resemble a

coordinated effort, as per the simultaneous specialization and integration required for rocket

engineering, the IGY, and the manned moon landing131. Aside from active cooperation or

131
See Barre; Welsh in Schwartz, Proceedings (1964). See also L. Perek, "The Scientific and Technological
Basis of Space Law" in N. Jasentuliyana, Space Law 189 (regarding potential for parallel or after-the-fact
cooperation between space sciences and space law despite communication barriers, but ultimately relying on
political will). On the need for simultaneous specialization and integration spurred by Sputnik, perpetuated by
the manned moon project, and articulated in the military-industrial-civilian-academic rocket and space complex,
all in the context of U.S. immigration and Indian emigration, see Vijay Prashad, The Karma of Brown Folk
(University of Minnesota Press: Minneapolis, 2000 at 72-74 ("Of the Origin of Desis and Some Principles of
State Selection") re 1957 panic of Sputnik launches, U.S. anxiety over Soviet ICBM launches and "a moral
panic that would not subside until the moon landing in July 1969" (73); the U.S. government post-Sputnik
attempt to "promote the study of science and technology through an enhanced National Science Foundation"
and math bees (74) as well as reliance on immigrants in the 1940s and beyond (e.g. refugees like Albert
Einstein, Enrico Fermi, Chinese American physicists who won the 1957 Nobel Prize, & Nazi/V-2 inventor
Wernher von Braun), including 1960s desires to import technical, highly skilled labor without prerequisite
employment through immigration reform and amended racist immigration policies indefensible in the face of
American ideals and Cold War ideological competitions with Communism (change urged on both accounts by
President Kennedy before and during his presidency) (74) that led to the passing of the Immigration and
Nationality Act in 1965 (with one result being that of the Indians migrating to the U.S. "83 percent entered
under the occupational category of professional and technical workers (roughly 20,000 scientists with Ph.D.'s,
40,000 engineers, and 25,000 doctors)" (75). According to Prashad, the U.S. was not the only post-WWII
state concerned with these issues. Instead, upon independence in 1947, and even beforehand, "Jawaharlal
Nehru noted that the 'new India' was to be closely linked to the world of science, not for individual truth but to
alleviate the misery of the masses" (75), thus moving "beyond its gains in theoretical physics and move toward
technology for the masses" (75). Such movement was brought about "through the All India council of
Technical Education (1946) and the Scientific Manpower Committee (1947) to extend the number of technical
institutions and to create a culture of science in the country" (76). This educational, scientific, and (also)
migratory development differed from earlier indentured labour migration from the subcontinent to Africa, the
Caribbean, and North America (76-77), as well as later migration by lesser-skilled/educated Third World
immigrants, but was partially a product of the 'push' of rising discrimination and more restrictive legislation in
the UK and other Commonwealth countries (on these points, and the stratification and segmented assimilation
of Indians/South Asians in the United States, see also: Bandana Purkayastha, Negotiating Ethnicity: Second-
Generation South Asian Americans Traverse a Transnational World (Rutgers University Press: New
Brunswick, NJ, 2005), especially Introduction at, e.g., 17-19); Sunil Bhatia, American Karma: Race, Culture,
and Identity in the Indian Diaspora (New York University Press: New York, 2007).

105
reinforcement, there might be neither a lag or competition nor a community between law and

science, but simply innovation that does not necessarily penetrate to the core problems of

political communities (e.g. sovereignty per McDougal's opinion). Indeed, regarding such a

distracting discourse as inaccurate due to the different concerns or metrics of these

disciplines (akin to Galloway's view of science developing facts through nature while law

governs society through legitimacy), Myres McDougal regards the lag-gap-competition

thesis as an unhelpful myth ('will o' the wisp'). However distracting the lag-gap-competition

might be, the reality of mutual constitution and maintenance is far from comforting. Indeed,

at the conclusion of his political history, The Heavens and the Earth, Walter McDougall

conveys some of the sense of fragmentation posed by the space age, wherein history and

technology have sped up so much as to make all nations 'backward' (451):

How can we avoid either worshipping or hating technology - mellonolatry or misoneism?

We cannot banish the will to power by identifying it, naming it, digging up its roots in human
nature and the international imperative. Somehow, rather, we must try to compete for power
without making power an end in itself, pursue knowledge without mistaking knowledge for
truth, cultivate our subcreation yet know its fruits as only part of reality; and remember that
for everything we gain there is something lost. [461]

Without resolving the issue, a microcosmic Third World example illustrates one

interpretation: that the First World community of law and science simultaneously functions

as the guarantor for the lag-gap-competition between science, the law, and Equatorial

Countries. This differentiated community further underscores what Boaventura de Sousa

Santos has called the "deficits" of modern, supposedly emancipatory projects (both legal and

scientific/technological). Based on such deficits, it is not clear how past (or even current)

conceptions of law or science, whether natural law/sciences, or space law/sciences, or even

policy-oriented sciences, might begin to achieve the promised universal or global success

without addressing these gaps. As well, there has also been criticism that current

106
scholarship, philosophies, theories, and practices of law/reform have been dominated by an

emphasis or over-emphasis upon scientific, empirical, or economic-driven legal analyses -

mirroring, along Fuller's description of science, a struggle for the soul of law132.

One such gap emerges through the theory and literature on indigenous legal traditions

that speaks to the elisions and erasures witnessed throughout Haley and MLV's speculations

on ETI legal theory. Finding unsatisfactory answers in the articulated versions of natural

law, policy-oriented jurisprudence, and almost-pure geophysical science, I discuss some of

the insights potentially afforded through readings from a Fourth World approach after first

noting the failed hopes of a fragmented Third World example.

Third World Approaches to Space Law and Science (but not yet Aliens)

In the discussion of colonial logic that abides in the structure and content of international

space law, and its relationship to science, in some of its most speculative legal theory on

intelligent extraterrestrials, I would be remiss in failing to mention the Declaration of the

First Meeting of Equatorial Countries (adopted December 3,1976, and also known as the

"Bogota Declaration") concerning the contested geostationary/geosynchronous orbit of

geostationary satellites (GSO/ GEOS) and signed by Brazil, Colombia, Congo, Ecuador,

Indonesia, Kenya, Uganda, and Zaire 33. This particular episode can serve as an example of

See, e.g., James R. Hackney Jr., Under Cover of Science: American Legal-Economic Theory and the Quest
for Objectivity (Durham, N.C.: Duke University Press, 2006); Robin Cooper Feldman, "Law's Misguided Love
Affair with Science" (forthcoming) (2009) Minnesota Journal of Law, Science & Technology (online:
http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=l 127569).
For the full text of the 1976 Bogota Declaration [BD], see Carl Q. Christol, The Modern International Law
of Outer Space (Pergamon Press: Toronto, 1982) at 891-896 (Appendix 6); (1978) 6 Journal ofSpace Law 193;
or, online: http://www.jaxa.jp/library/space_law/chapter_2/2-2-1 -2_e.html. The Bogota Declaration and related
issues have been discussed extensively in the space law literature (as well as elsewhere). For example, see:
Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Sijthoff: Leiden, 1972)
at 44-48 (non-appropriation and formal equality vs. substantive equality); Gennady Zhukov & Yuri Kolosov,
International Space Law, trans. Boris Belitzky (Praeger: Toronto, 1984) at 155-160 (see 182-187 for discussion
on the CHM, LDC, sovereignty & the Moon Treaty); Damodar Wadegaonkar, The Orbit of Space Law (Stevens
& Sons: London, 1984) at 43-45 (criticizing three arguments supporting BD) (see also Clas G. Wihlborg & Per
Magnus Wijkman, "Outer Space Resources in Efficient and Equitable Use: New Frontiers for Old Principles"

107
Third World scientific fact-finding and legal interpretation that is rejected on both grounds

by the First (and even Second) World community of law and science, which points to its

partial usefulness on Earth and its doubtful quality as a model for speculative extraterrestrial

relations.

The GEOS have been defined by the governing international body, International

Telecommunications Union (ITU), as a "geosynchronous satellite whose circular and direct

orbit lies in the plane of the Earth's equator and which thus remains fixed relative to the

Earth; by extension, a geosynchronous satellite which remains approximately fixed relative

to the Earth." (ITU, Radio Regulations (2004)- Art. 1 § 1.189). Correspondingly, the GSO

has been defined by the ITU as the "unique orbit of all geostationary satellites [...] whose

(1981) 14 Journal of Law and Economics 23-43); Stephen Gorove, Studies in Space Law: Its Challenges and
Prospects (A.W. Sijthoff: Leyden, 1977) at 179 (potential 'lip service' prohibition of property claims in Moon
Treaty falling short of OST prohibitions on national appropriation); J.E.S. Fawcett, Outer Space: New
Challenges to Law and Policy (Clarendon Press: Oxford, 1984) at 11-14 (general discussion of appropriation
rules); Nathan C. Goldman, American Space Law: International and Domestic (Iowa State University Press:
Ames, Iowa, 1988) at 34-36 (allocating geostationary slots) and 98-99 (criticizing BD legal principles but
acknowledging political effect); Glenn H. Reynolds & Robert P. Merges, Outer Space: Problems of Law and
Policy, 2nd Ed. (Westview Press: Boulder, San Francisco, 1998) at 132 (CHM), 135-152 ("Developed World
and Third World Views on Space Development"), 152-166 (NIEO, criticism of Bedjaoui, & common resource
regimes from law & economics perspective), 317-323 (contact with ETs); Nicolas Mateesco Matte, Space
Policy and Programmes Today and Tomorrow: the Vanishing Duopole (Carswell: Toronto, 1977) at 90-91
(BD; see also 114-119 re new economic order); Lubos Perek "The Scientific and Technological Basis of Space
Law" in N. Jasentuliyana, Space Law: Development and Scope, foreword by M. Lachs (Praeger: Westport,
Connecticut, 1992) at 175-190 (186-188, criticizing BD from space science/technology perspective); Alex G.
Vicas, "The New International Economic Order and the Emerging Space Regime" in N. M. Matte, Space
Activities and implications: Where From and Where To at the Threshold of the 80's (Carswell: Toronto, 1981)
at 293-307 (interrelationship of space regime's common resource provisions and NIEO); George S. Robinson &
Harold M. White, Jr., Envoys of Mankind: A Declaration of First Principles for the Governance of Space
Societies, prologue by G. Roddenberry (Smithsonian Institution Press: Washington, D.C., 1986) at 175
(criticizing Bogota Declaration for territorial-sovereignty approach). But see: O. Schachter & Christopher C.
Joyner, United Nations Legal Order (2 vols.) (Cambridge: Cambridge University Press, 1995) at 765-766 (re
1976 Bogota Declaration's claim to sovereignty over the scarce natural resource of the equatorial corridor of
GSO consistent with the CERDS/NIEO, but not with the OSTs non-appropriation. The difference between
access and appropriation is nothing where only certain states have technology; further, particular functional uses
of space constitute prohibited appropriation or dilute the prohibition (such as no-fly buffer zones around
military or other satellites)). On the CHM, see Carol R. Buxton, "Property in Outer Space: The Common
Heritage of Mankind Principle vs. the 'First in Time, First in Right' Rule of Property Law" (2004) 69 J. Air
Law & Comm. 689-707 at 704-705 (BD & conflict with OST's non-appropriation); B. P. Herber, "The Common
Heritage Principle: Antarctica and the Developing Nations," (Oct. 1991) 50 American Journal of Economics
and Sociology 4 at 391-406; I. Mgbeoji, "Beyond Rhetoric: State Sovereignty, Common Concern, and the
Inapplicability of the Common Heritage Concept to Plant Genetic Resources," (2003) 16 Leiden Journal of
International Law 821—837.

108
circular and direct orbit lies in the plane of the Earth's equator" (ITU, Radio Regulations

(2004) - Art. 1 § 1.190). Among other reasons, it is prized because the apparently stationary

orbit provides the ability to keep both satellite and receiving antennae fixed towards one

another with only periodic corrections due to some drifting (but far from the constant

adjustment, using more fuel, required for non-GSO/GEOS). As well, the equatorial band

provides significant coverage over the earth's land mass and particularly high potential for

regional, continental or sub-continental coverage (including for less densely populated

areas)134.

In the Bogota Declaration, the Equatorial Countries similarly define the GSO/GEOS

(s. 1). However, the Declaration sets out the difference in interpreting and claiming the

GSO:

Equatorial countries declare that the geostationary synchronous orbit is a physical fact linked
to the reality of our planet because its existence depends exclusively on its relation to
gravitational phenomena generated by the earth, and that is why it must not be considered part
of the outer space. Therefore, the segments of geostationary synchronous orbit are part of the
territory over which Equatorial states exercise their national sovereignty. The geostationary
orbit is a scarce natural resource, whose importance and value increase rapidly together
with the development of space technology and with the growing need for communication;
therefore, the Equatorial countries meeting in Bogota have decided to proclaim and defend on
behalf of their peoples, the existence of their sovereignty over this natural resource, [s. 1;
emphasis added]

In this bold maneuver, the Equatorial Countries advance supposedly prohibited claims based

on concepts supposedly excluded from outer space135. As noted in the Bogota Declaration,

these claims arose due to concerns about the "imminent saturation" of the GSO at the

disadvantage of the less technologically and financially-resourced developing nations faced

See previous note (re GSO/GEOS resources), e.g. Wadegaonkar, Orbit of Space Law (1984) at 43.
135
See the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S. 205 ["OST'] at Article 1 (free use
and exploration of outer space for the province of all mankind) and Article 2 (outer space not subject to national
appropriation by claim of sovereignty, means of use or occupation or otherwise). Also available through the
United Nations Office of Outer Space Affairs (online: http://www.unoosa.org/oosa/SpaceLaw/outerspt.html).
For general and extended treatments of outer space law and the treaties, respectively, see: N. Jasentuliyana,
International Space Law and the United Nations (Kluwer Law International: London, 1999); Bess CM.
Reijnen, The United Nations Space Treaties Analyzed (Editions Frontieres: Gif-sur-Yvette, France, 1992).
with launching countries' apparent monopoly on a first-come, first-serve basis that failed to

adhere the principle of equitable access set out in the ITU Convention (Art. 33(2) [now Art.

44(2)]). In support of their sovereignty claims, the Equatorial Countries mobilized the

principle of permanent sovereignty over the natural resources of developing countries

(U.N.G.A. Res. 2692 (XXV)) and the similar sentiment in the Charter on Economic Rights

and Duties of States (U.N.G.A. Res. 3281 (XXIX)) promoting a new international economic

order (NIEO). While allowing for those segments of the GSO corresponding to the open seas

to be considered as part of the "common heritage of mankind" (s. 3), as well as allowing for

the free orbital transit of non-GEOS just passing through, the Bogota Declaration otherwise

requires express authorization by the relevant equatorial state of any other permanent GSO

device. In response to contemplated objections on the basis of the OST1967, the Equatorial

Countries declare that:

...[the OST] cannot be considered as a final answer to the problem of the exploration and use
of outer space, even less when the international community is questioning all the terms of
international law which were elaborated when the developing countries could not count on
adequate scientific advice and were thus not able to observe and evaluate the omissions,
contradictions and consequences of the proposals which were prepared with great ability by
the industrialized powers for their own benefit, [s. 4]

The perennial debate concerning the lack of any agreed definition of outer space and its

distinction from the upper limits of air space is also mobilized by the Equatorial Countries to

support their claim that the GSO "must not be considered part of the outer space." Without a

proper "juridical definition of outer space", the Equatorial Countries argue that the OSTs

"so-called non-national appropriation [...] actually developed [...] technological partition of

the orbit, which is simply a national appropriation" (s. 4).

110
 As noted above, the Bogota Declaration was met with much criticism. The accuracy

of Equatorial Country arguments has been criticized on legal, scientific, economic, and

logical bases.136 Christol summarizes four of the recurring objections as:

1) the Bogota Declaration's claims were contrary to the free and equal right of all
states to explore, use, and exploit the space environment and have free access to it
(OST, Art. 1; Zhukov and Kolosov, 157);

2) the placement and maintenance of a GEOS "cannot be considered to be an

appropriation of an area or of a resource in outer space by means of use or occupation
as forbidden in Article 2" (Christol 513);

3) customary international space law contains norms (allowing for use of the GSO on
the basis of equality) incorporated into and consistently respected since the 1967
OST; and,

4) the full, consistent, public notice of launching states speaks to the world's
acceptance of "the regime of free and equal exploration, use, and exploitation and
free access" long before the belated claims of the Bogota Countries (Christol 514;
Wadegaonkar 44).

The Bogota Declaration has also been criticized for its partial, piecemeal approach to the

forces of gravity, which do not create any special relationship between the Equatorial

Countries and GEOS, but operate in and outside the atmosphere based on the entire planet

(for instance, with respect to the Sun) (Ferrer 1977 in Christol 515; Wadegaonkar 43). The

status of the GSO as a limited natural resource has also been challenged on the basis of the

role and necessity of human technology, engineering, and control exercised in the form and

maintenance of the satellites, space objects, and devices themselves, which indelibly blur the

line between natural and non-natural resources (Christol 456-457) and "without which there

is no geostationary orbit" (Zhukov & Kolosov 157). As well, the Bogota Declaration's

For example, see: Christol at 456-457,470-471,475-501 (re subsequent deliberations and discussions in
UN/ITU regarding post-Bogota Declaration positions and disagreements); 511-532 (scholarly assessments of
GSO and near universal adversity to Bogota Declaration) and other BD references, above. See also C.Q.
Christol, "Telecommunications, Outer Space, and the New International Information Order (NIIO)" in
Frederick E. Snyder & Surakiart Sathirathai, Eds., Third World Attitudes Toward International Law: An
Introduction (Martinus Nijhoff: Boston, 1987) at 611-624.

Ill
interpretation and claim upon the GSO has been challenged through Jenks' early criticism of

the unrestrained extension of sovereignty into outer space as untenable, given the earth's

rotation and the resulting meaningless, overlapping cones of sovereignty137.

Apart from these initial criticisms of the surface-level scientific facts and legal

principles, warnings have also been made against the deeper, NIEO-related motivations

underlying the Bogota Declaration138. Specifically, it has been alternately described as:

• "a preliminary negotiating stance on the part of the equatorial states for special
status" (Matte, Space Policy Today & Tomorrow 1977, 90);

• maybe not "good law, but it has been good politics" (Goldman 99); and,

• "the third world taking the Soviet notion of the moral invalidity of 'capitalist
international law' and turning it into the moral invalidity of 'industrialized
international law' [. ..such that] the virtues of the third world's complaints are easily
matched by the vices of their solutions, which much too often are sheer territorial
mimicry of the industrial countries" (Robinson & White 175).

These characterizations of the Bogota Declaration all point to its extra-legal and extra-

scientific nature, given the lack of both accepted scientific content and (international) legal

form. Instead, the only appeal (or notoriety) that remains arises as moral or political - two

forms supposedly excluded from the idealized self-descriptions of the objective, universal,

and progressive First World community of law and science.

While clearly neither comprehensive of the entire Third World experience with space

law and technological/regulatory developments, nor illustrating a monolithic Third World,

See C.W. Jenks, "International Law and Activities in Space" (Jan., 1956) 5 The International and
Comparative Law Quarterly 1 at 103-104. On a related point (citing Jan Busak), Zhukov & Kolosov point out
that objections on the basis of unwanted/unauthorized direct TV broadcasting via foreign satellites would not be
prevented by GSO-sovereignty due to the fact that such DTV satellites must "be positioned 15-30°" to the side
of the broadcast coverage area (thus requiring positioning of the satellite "over either a neighboring state or the
high seas" but not in the fixed GSO (158). See also L. Perek, "The Scientific and Technological Basis of Space
Law" inN. Jasentuliyana, Space Law 185-189.
138
As with the presentation of any 'world', it is important to note that the Bogota Declaration and its
sovereignty approach to the GSO was not without its detractors, outside of the First/Second World space-
resource or launching states, and within the ranks of the Third World and other developing countries (see
Christol at 475-501).

112
the Bogota Declaration and its reception serves as one example of the unintelligibility of

certain forms of resistance and policies supposedly alien to both legal and scientific

thought139. As well, picking up on Robinson & White's criticism that third world virtues

translate into first world (sovereigntist) vices, it begs the question as to whether the 'master's

house' can be disassembled with the 'master's tools'. Whether in the form of inclusive

common resource regimes (such as the province of all mankind, the common heritage of

mankind) defeated by technological exclusion, or exclusive sovereignty claims defeated by

free/equal access (and/or efficient use or commons/tragedy) arguments, the emancipatory

attempts by Third World states, coalitions, and legal theories to achieve substantive equality,

redistribution, and autonomy constantly grind against the deficits of the existing, inherited

history of colonial/neo-colonial structures of international law, relations, and

scientific/technological asymmetries140. As well, the master status of political intervention

For example, Rajagopal notes that: "When these states did attempt to transform international law by
asserting rights to territory - for example through the Permanent Sovereignty over Natural Resources (PSNR)
doctrine in the post-independence period to nationalize western investments - western international lawyers
usually responded negatively by denying the legal status of these new doctrines. The promotion of absolute
property rights in the 1980s and 1990s by western donors and multilaterals must then be seen in this historical
context. Here, the promotion of individual property rights is directed at weakening the dominium of Third
World sovereignty, or the ability of collectivities to exercise control over individual and corporate ownership of
resources." [263-264]
140
For more on these failures, see de Sousa Santos and the beginning of Chapter Five, below. The numerous
potential benefits of space technology to the diverse Third World, as well as the financial, infrastructure,
technological, education/expertise, and other obstacles to such diffusion (requiring significant financial and
technical assistance, including equitable pricing, cost reductions, technology transfer, etc. from launching
states) are detailed in N. Jasentuliyana, "Third World Perspectives of Space Technology" in N.M. Matte, Ed.,
Space Activities and Implications: Where From and Where To at the Threshold of the 80 's (ICASL McGill
University: Montreal, 1981) at 261-277. On these issues, see also Third World Network, "Modem Science in
Crisis: A Third World Response" (final version of Declaration of November 1986 "Crisis in Modem Science"
Conference organized by the Third World Network and the Consumers' Association of Penang) in Sandra
Harding, Ed., The "Racial" Economy of Science: Toward a Democratic Future (Indiana University Press:
Bloomington, 1993) at 484-518. Conversely, W. McDougall (also writing in and, in this respect, about the
1980's) saw Third World attempts to prohibit lunar exploitation in the Moon Treaty, resist the militarization of
space, and control remote-sensing and other space technology through the UN as sometimes Marxist, more
often authoritarian Third World government attempts to "frustrate the potential of space technology to break
down their monopoly of information within their own countries" with the added effect of stymieing non-
military/non-scientific space investment (434). Related discussions arise in: C.G. Weeramantry, Human rights
and scientific and technological development: studies on the affirmative use of science and technology for the
furtherance of human rights (Tokyo: United Nations University Press, 1990); C.G. Weeramantry, The Impact of

113
given to these efforts simultaneously disqualifies their full participation or acceptance in the

supposedly or structurally non- or apolitical legal and scientific forms. The relative failure of

this smaller Third World project, extendible to the contemporaneous NIEO, speaks to the

problems of a system of formal international equality and sovereignty that allows for

structural replication of substantive economic and other inequality.141

Utopia & Fragmentation: Not Just First World Problems

In the larger scheme of legal theory and scholarship, these are obviously not novel points. As

seen above, the (First World/colonial) community of law and science that runs through both

Haley and MLV's speculations on relations with ETI life, with science/technology as either

the necessary condition for natural law's rehabilitation (only) in outer space or the sole,

sufficient determinant of the three (superior-similar-inferior) contingencies of extraterrestrial

relations. Similarly, in the hagiographies of the IGY, the colonial community of law and

science remains intact, whether through active cooperation, passive coordination, or ignorant

Technology on Human Rights: Global Case-studies (Tokyo: United Nations University Press, 1993). See
especially Weeramantry's introductions regarding the power of science and technology to affect society,
combined with the external funding of sci-tech, which gives the community voice to require science to serve
humanity (1990 at 12-14).
141
These struggles also mirror domestic/municipal law concerns about human rights, systemic discrimination,
affirmative action, and structural change (albeit without a single sovereign). For example, if the GSO were
thought of as justice, the debate would closely parallel problems specifically related to access to justice and the
different, successive waves of reform and problem-solving addressed to these issues following the formal
equality of mere universal access (without representation, i.e. 'launching capability'). For example, see:
Roderick A. Macdonald, "Justice is a Noun, but Access isn't a Verb," Speaking notes for Symposium,
Expanding Horizons: Rethinking Access to Justice in Canada (Department of Justice of Canada, March 31,
2000) (online: http://canada.justice.gc.ca/en/ps/rs/rep/2000/rr00-op2/b4.html) (noting the need to avoid
fetishizing "access" (to the detriment of attaining justice) and reducing "access to justice" to mere "access to
law"); "Riding the Third Wave: Rethinking Criminal Legal within an Access to Justice Framework," (online:
http://wwwjustice.gc.ca/en/ps/rs/rep/2003/rr03-5/rr03-5_01.html). Citing M. Cappelletti and B. Garth ((eds.),
Access to Justice: A World Survey, Vol. I, Sitjoff and Noordhoff: Milan, 1978), Currie notes the evolution of
models of access to justice from the "first wave emergence of legal aid [...] focused on providing access to
legal representation in the courts for economically disadvantaged [individuals]" to the 'second wave'
"emphasis on group and collective rights" that began to use "test case and public interest litigation [... ] to
address systemic problems of inequality" to the current "third wave of the access to justice movement
[developing] a range of alternatives to litigation in court to resolve disputes and justice problems, as well as
reforms that simplify the justice system and thus facilitate greater accessibility" (emphasis added). See also F.
Bhabha, "Institutionalizing Access-to-Justice: Judicial, Legislative and Grassroots Dimensions," (2007) 33
Queen's L.J. 139 - 178 at paras. 23 - 24; P. Hughes & M. Mossman, "Re-Thinking Access to Criminal Justice
in Canada: A Critical Review of Needs and Responses," (2002) 13 W.R.L.SJ. 1 at 6 - 8.

114
facilitation. Finally, in the rebuffed, extra-legal, unscientific GSO attempts of

Bogota/Equatorial Countries, the resistance of First World legal theory and scientific facts to

their use by Third World representatives serves as a microcosm of some of the problems

exhibited in both First World self-directed reforms or solutions (e.g. ETI legal theory & IGY

pure, peace-building science) and decolonized, sovereigntist Third World projects more

generally. These recurrent problems are not without some explanations.

One particular interpretation of the failure of the Third World Project in its various

iterations emerges in Vijay Prashad's recent book The Darker Nations: A People's History of

the Third World. In this work, Prashad traces and constructs a history of the Third World

as "not a place" but a project "longing for dignity" and the "basic necessities of life (land,

peace, freedom)" (xv-xvi) with key leaders (Nehru, Nasser, Nkrumah, Castro) in key

movements (Afro-Asian Solidarity Conferences, Non-Aligned Movement, Tricontinental

Vijay Prashad, The Darker Nations: A People's History of the Third World (The New Press: New York,
2007). The term Third World is generally traced to Alfred Sauvy's article ("Trois mondes, une planete") in the
August 14,1952, edition of L'Observateur, which drew a distinction between the First World (capitalist),
Second World (communist), and Third World (decolonized, non-aligned) countries caught between these two
poles (Prashad 6-7). In 'legal' scholarship, current and earlier Third World approaches to international law (as
well as reflexive and external views on the plural, incomplete but useful category of Third World/TWAIL) can
be found in: Karin Mickelson, "Rhetoric and Rage: Third World Voices in International Legal Discourse"
(1998) 16 Wis. Int'lL. J. 353; Makau Mutua, "What is TWAIL?" (2000) 94 Am. Soc. Int'lL. Proc. 31; Anthony
Anghie, "What is TWAIL: Comment" (2000) 94 Am. Soc. Int'lL. Proc. 39; Balakrishnan Rajagopal, "From
Resistance To Renewal: The Third World, Social Movements, And The Expansion Of International
Institutions" (2000) 41 Harv. Int 1 L.J. 529; Balakrishnan Rajagopal, International Law From Below;
Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003);
David P. Fidler, "Revolt Against or from within the West? TWAIL, the Developing World, and the Future
Direction of International Law" (2003) 2 Chinese J. Int'l L. 29; Obiora Okafor, "Newness, Imperialism, and
International Legal Reform in Our Time: A TWAIL Perspective" (2005) 43 Osgoode Hall L.J. 171; Anthony
Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University
Press, 2004) at 3-4,35-36,110; Andrew F. Sunter, TWAIL as Naturalized Epistemological Inquiry (2007) 20
Cdn. J. L. & Jurisp. 2. Jasentulivana also attempts to define and utilize the Third World category in, "Third
World Perspectives of Space Technology" in N.M. Matte, Ed., Space Activities and Implications: Where From
and Where To at the Threshold of the 80 's (IC ASL McGill University: Montreal, 1981) at 261 -277. He writes
that: "The Third-World, though not a monolithic group, is characterized by a shortage of food, high rates of
population and illiteracy, and low levels of agriculture and industrial production. Applications of space
technology can help alleviate, more quickly and more efficiently, some of these economic and social problems
and can provide the Third-World with a new stimulus for development. It is, therefore, appropriate that the
Third-World be a major target for the use of space technology and the question is not whether developing
countries can afford the uses of space technology; rather, it is whether they can afford to ignore them" (261).

115
Conference, NIEO, G-77, UNCTAD) at key places (Bandung/1955, Cairo/1957/1961/1964,

Belgrade/1961, Havana/1966, Algiers/1973, NIEO/1974, CERDS/1976, ASEAN/1977, New

Delhi/1983). In noting the obituary of the Third World, Prashad points to its assassination by

the First World through the "Trojan horse" of the 1970s debt crisis and IMF structural

adjustment, which ensured structural poverty through recurring debt and eroded the

"abbreviated project for the construction of Third World sovereignty" (231)143. As well, akin

to the struggle over space law and space science detailed above, Prashad underscores that

"any reform [of the rules of international trade] had to be both about the politics of the

economy (who writes the rules) and the economics of politics (who holds the economic

muscle to allow themselves to write the rules)" (213)144. Prashad concludes that:

Debt hangs heavy for the bulk of the planet. In 1970, when the Third World project was
intact, the sixty states classified as 'low-income' by the World Bank owed commercial
lenders and international agencies $25 billion. Three decades later, the debt of these states
ballooned to $523 billion. An impoverished conversation on debt yields no agenda to combat
this fundamental ailment for the former Third World. These are not 'poor' countries. Over
the course of these decades, the sixty states paid $550 billion in principle and interest on loans
worth $540 billion. Yet they still owe $523 billion. The alchemy of international usury binds
the darker nations. [276]

Prashad's conclusions echo some of Rajagopal's arguments in International Law from

Below. Akin to Prashad, Rajagopal contests the seemingly natural classification of Third

World states as low-income or poor145. Instead, akin to the scientific development of facts

Beyond the external pressures of debt, structural adjustment and direct/indirect American military and
corporate intervention, Prashad also offers additional internal explanations for the fragmentation and failure of
the Third World project (such as the large number of diverse and different states dealing with internal
hierarchies of class, caste, tribe, and competing religious, secular-democratic, militarist, and mystical cultural &
ethno-nationalist movements in the wake of the dissolution of the Left (12-15, 140-168, 276-280).
144
In "Property" and the Making of the International System (Boulder, Colorado: Lynne Rienner Publishers,
1998), Kurt Burch makes strikingly similar points about the division of politics from economics, power from
wealth, the state from market, and the state system from global capitalism, 'at the hands' of property (29,148-
151).
145
Jasentuliyana raises a related point concerning the use (or lack thereof) of space technology in the Third
World due, in part, to inadequate and unpredictable assistance: "Financial and development assistance should
not be looked upon primarily as burdensome and necessary evils by the launching States and industrially
advanced countries. While such assistance should be motivated through international public-interest standards,
it is interesting to note for example [from a recent Washington Post study...] that loan repayments and

116
utilized by law above, Rajagopal notes the constructed and maintained character of this

structural inequality:

The World Bank, for example, invented 'per capita income' as a tool to compare countries in
1948. As a result, they magically converted almost two-thirds of the world's population into
the 'poor' because their annual per capital income was less than $100. Along with the
invention of the notion of 'Third World' as a terrain of intervention in the 1950s, the
discovery of poverty emerged as a working principle of the process whereby the domain of
interaction between the West and the non-West was defined. [108]145

Similarly, Rajagopal traces a similar story of the "failure of Marxism as a liberatory

discourse" (241) and the shortfalls of statist ('etatist') nationalism, but with an emphasis

upon the multiple and varied social movements of 'the masses' that follow these failures:

However, by the early 1970s, after the engineered 'fall' of Allende in Chile, the splintering of
the Third World coalition in the mid-1970s, the containment of nationalist and class
movements by the two Super Powers, and the genuine grass-roots disillusionment with the
violence of the nation-building project in many Third World countries, new forms of popular
mobilization began to emerge, based on new forms of domination and exploitation (such as
migrant labor, urban squatters, women). [238] [...]

The social movements that emerged in the Third World emerged largely as a response to the
new, harsh forms of global economy. Indigenous peoples movements, fishworkers'
movements, farmers' movements, and anti-globalization protests are, then, as result of the
failure of Marxism as a coherent left doctrine. [243; emphasis added]

Although with less emphasis given the different focuses of their books, Prashad ends up in a

similarly fragmented and pluralistic universe of actors, networks, and theories:

Social movements arose in the darker nations to challenge the Neoliberal states with national
liberation values: land movements, water movements, indigenous rights movements, and
others have culminated in electoral victories or else in the imagination of alternatives to IMF-
driven globalization. Many of these struggles draw on resilient ideological resources (such as
Marxism, anarchism, and populism). Confident Communist parties, indigenous unions, and
broader movement platforms are some of the organizations that have assembled the popular
anxieties about global asymmetries. [...] But in this renewal of energy, there is as yet little
evidence of an alternative institutional agenda to replace the assassinated Third World project.
[279-280]

procurements of United States goods and services by aid agencies are estimated to probably exceed the amount
of foreign aid money the United States sent abroad." [271]
146
Rajagopal makes a similar argument about the discourse of sustainable development and the 'greening' of
the Bank, which he interprets as the ambivalent translation of critical social movements' pressure into a creative
expansion of the institution's role, mandate, and self-justifications (113-114). In another context, made relevant
in this thesis, see B. Latour & S. Woolgar, Laboratory Life: the Construction of Scientific Facts (Princeton,
N.J.: Princeton University Press, 1986). Similarly, with respect to ILT and the cultural specificity of facts in
relating different legal traditions, see Borrows 2008 at 183-185.

117
 The limitations of IMF-driven globalization and revanchist traditionalism provoke mass
movements across the planet. The battles for land rights and water rights, for cultural dignity
and economic parity, for women's rights and indigenous rights, for the construction of
democratic institutions and responsive states - these are legion in every country, on every
continent. It is from these many creative initiatives that a genuine agenda for the future will
arise. When it does, the Third World will have found its successor. [281; emphasis added]

From the foregoing, it is clear that the unrealized unities of the past, and the sometimes

dizzying, sometimes inspiring fragmentation of the present, might point to the abandonment

of all hope. Indeed, where natural law, the natural sciences, technology147, space law, space

science, the 'science' of law, and the laws of science seem to both promise liberation but

conspire against it, the legal speculation and approaches to extraterrestrial intelligent life

examined in Chapters One to Three of this thesis seem to be merely another means of giving

the (same) lie. In the wake of the Third World project, one of the prospects hailed by both

Prashad and Rajagopal, and ignored, distorted, or erased by Haley and MLV, might help to

speak some truth to and bridge the gap of the lie-giving functions of the law, its community

with science, and ETI legal theory. I briefly make such an attempt below.

147
For example, see Michael Adas, Machines as the Measure of Men: Science, Technology, and Ideologies of
Western Dominance (Ithaca: Cornell University Press, 1989).

118
CHAPTER FIVE - THE FOURTH WORLD

The Third World Is Not Enough

In Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition,

Boaventura de Sousa Santos traces the movement of global/collectivist concepts in the global

commons regimes: Pardo's 1967 articulation of the common heritage of humankind and the

Law of the Sea; the common heritage of humankind (CHM) and the Moon Treaty; the NIEO;

telecommunications, the NWICO, & the GSO (albeit without mention of the Bogota

Declaration specifically); the Antarctic Treaty (as an elitist reconciliation of the CHM and

the condominium); and the space age "overview effect" of seeing the Earth from outer space

or from Lovelock's Gaia hypothesis of an integrated, all-encompassing natural system (365-

373). " De Sousa Santos sees the haphazard and uneven career of such concepts as

ultimately striving, in the paradigmatic transition he describes throughout his book, towards

the principle of jus humanitatis, or "a law of and for humanity as a whole, the law of a decent

human condition in a nondualistic, but rather, mutualistic, interaction with nature" that is

"grounded on the idea of intergenerational responsibility" and the transmission of "the

world's cultural and natural heritage to future generations" (372-373)149. De Sousa Santos

conceives of jus humanitatis as being "utopian without apology" wherein "emancipatory

coalitions" remain aware of and denounce the potential concealed "manipulative rhetoric" by

Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic
Transition (Routledge, New York: 1995).
For similar desires from a local, but still transnational, perspective, see: J. Borrows, "Seven Generations,
Seven Teachings: Ending the Indian Act" (commissioned Research Paper for the National Centre for First
Nations Governance, May 2008) (online: http://fngovernance.org/research/index.htm) at 3, 24,31. Regarding
the 'Gaia' effect, see for example: David M. Wilkinson, "The fundamental processes in ecology: a thought
experiment on extraterrestrial biospheres" (2003) 78 Biol. Rev. 171-179.

119
the state or the market in seeking to usurp the as-yet unrealized (modern) representation of

global community (373). Akin to the obvious elisions in Haley and MLV's speculations, and

the future hopes of Rajagopal and Prashad's post-Third World struggles, de Sousa Santos

also raises the reality and hope of indigenous peoples' experience and mobilization (313-

327). Specifically, he asks: "What can we learn from the indigenous peoples who, in a sense,

are the South of the South?" (325).

Based on my readings, I wish to present some of the lessons from the 'South of the

North'' gleaned from a North American Fourth World perspective and indigenous legal

theory/traditions. While the progress of this thesis could easily result in the discussion of any

number of the fragments/movements identified by Rajagopal and Prashad (e.g. labour,

migration, gender, environment, etc.), my own particular coursework, reading, lack of

reading, and interests - combined with the initial stubborn intuition of some kind of fearful

symmetry between the elisions of First World ETI legal theory and the lessons of Fourth

World indigenous legal theory - have all led me down this particular path. As with the

caveats that have marked the rest of this thesis (because I am neither a space law specialist,

nor a historian, nor a sociologist of science, nor a TWAIL scholar), I should again warn you

that I am also not a Fourth World 'expert' or indigenous legal scholar. As with the rest of my

thesis, I strive to tell a story of my reading and thinking without being merely a literature

review. Similar to the situations of law, history, science, the IGY, and the Third World

presented above, the inability to adequately represent the complexity and plurality of these

subjects haunts the works discussed as well as this thesis. The danger of misrepresentation

150
De Sousa Santos notes that the collapse of emancipation to regulation takes place due to the management of
the excesses and deficits of modernity entrusted to inadequate modern science and law (7). On this point, see
also: Bruno Latour, We Have Never Been Modern (transl. Catherine Porter) (Cambridge, Mass.: Harvard
University Press, 1991) at ch. 1.

120
and appropriation is especially poignant given: 1) my close readings of Haley and MLV's

First World ETI legal theory and the deficits of their respective speculations; and 2) the

particular intellectual, physical, and psychic histories of violence characterizing non-

indigenous scholars, experts, and others' traditional interactions with indigenous theories,

traditions, and beliefs151. I do not wish to add to these particular traditions152. At the same

time, these books have been written and were meant to be read.

In the brief section that follows, I try to do my best to adhere to the principles of

intellectual fairness mentioned at the beginning of this thesis, but with a particular sensitivity

to the local and wider context of the authors, works, and ideas discussed below. This effort is

complicated by the fact that I am most ignorant of the proposed 'solution' that is also most

likely to be misrepresented. However, by hewing that much closer to the text(s), the risk of

fetishism will likely only increase. Aside from this particular risk, there is also the danger

that my attempt at situating and placing my scholarship remains in perpetual transit; both

passing and token, it could be all too clear that the otherwise omnipresent, omniscient third

person has slipped into the humble, first person for only a brief, nodding moment. I have

For example, see P. Clark, "Representations of Aboriginal Peoples in English Canadian History Textbooks:
Toward Reconciliation." in Elizabeth A. Cole (Ed.). Teaching the Violent Past: History Education and
Reconciliation (Lanham, MD: Rowman & Littlefield, 2007) at 81-120 ["Clark 2007"]; L.T. Smith,
Decolonizing methodologies: research and indigenous peoples (New York: Zed Books, 1999). In addition, see
James W. Loewen, Lies my teacher told me: everything your American history textbook got wrong (New York:
New Press/Norton, 1995) ["Loewen"]; Kyle R. Ward, History in the making: an absorbing look at how
American history has changed in the telling over the last 300years (New York: New Press, 2006) ["Ward"]; G.
Mcdiarmid & D. Pratt, Teaching Prejudice: A Content Analysis of Social Studies Textbooks Authorized for Use
in Ontario. A report to the Ontario Human Rights Commission (Toronto: OISE, 1971) ["Mcdiarmid & Pratt"];
" ] ; K. Cook, Images OfIndians Held By Non-Indians: A Review Of Current Canadian Research (Report for
Research Branch, Indian and Northern Affairs Canada, 1984); D. Pratt, How to Find and Measure Bias in
Textbooks (Englewood Cliffs, N.J.: Educational Technology Publication, 1972) ["Pratt"] (note that Pratt's
specific content analysis methodology emerged from the intensive development of propaganda analysis and
communications theory in and after World War II, which focused on LasswelFs formulation of 'who says what
to whom with what effect' by isolating key words and phrases and measuring the frequency of their occurrence
and/or the terms used in relation to them (Pratt 10; Mcdiarmid & Pratt, 121)).
152
Some of these issues are also discussed in: Bradley Bryan, "Property as Ontology: On Aboriginal and
English Understandings of Ownership" (2000) 13 Can. J.L. & Juris. 3-31; Preston, Grounding Knowledge.

121
attempted to avoid this singular punctuation by honestly setting out my own imperial,

ahistorical, Utopian, and fragmented approach to the hypothetical problem of ETI legal

theory. As with the rest of my thesis, it remains for the readers to determine whether these

efforts have been successful.

The Eponymous Fourth World & Indigenous Legal Traditions (ILT)

In The Fourth World, George Manuel153 and Michael Posluns154 present a memoir of

Manuel's life to that date, interwoven with a description of the traditions, conditions, and

struggles of Aboriginal peoples in Canada and around the world, and an argument for a

Fourth World philosophy.155 In his foreword to the text, Vine Deloria, Jr.156 describes "a

pernicious doctrine known as the 'Third World' [which] began to spread in North America

[... and] was to be a great coalition of oppressed peoples of the world rising up against the

technology and tyranny of the western European peoples" (ix). Deloria describes his distrust

of this ideology ("of the American New Left") in the name of decolonized African and Asian

Born in 1921 as a member of the Shuswap Nation (in the B.C. interior), Manuel was a First Nations and
indigenous activist, leader, and elected head of the North American Indian Brotherhood, national chief of the
National Indian Brotherhood (now Assembly of First Nations), president of die World Council of Indigenous
Peoples, and President of the Union of British Columbia Indian Chiefs. He died in 1989. [online:
http://www.ubcic.bc.ca/about/george.htm] & [online: http://landoftheshuswap.com/msite/gmanuel.php]
154
Michael Posluns "is a journalist and researcher. [...JPosluns has conducted research, written reports, briefs
and monographs on behalf of and about First Nations in Canada and the United States. He has served as a
parliamentary adviser to the Assembly of First Nations, the Native Indian Brotherhood, the Dene Nation and
other bodies." [online: http://archivesfa.library.yorku.ca/fonds/ON00370-fD000382.htm].
155
George Manuel and Michael Posluns, The Fourth World: An Indian Reality (foreword by Vine Deloria, Jr.)
(Don Mills, ON: Collier-Macmillan, 1974) [Manuel]. Although there is obviously much more literature that
could be discussed in this section, I focus mainly on some recent work of Professor John Borrows and the (now-
defunct) Law Commission of Canada. See: Law Commission of Canada, Ed., Indigenous Legal Traditions
(Toronto: UBC Press, 2007) [ILT\; Law Commission of Canada, Justice Within: Indigenous Legal Traditions
(Working Discussion Paper) (Ottawa: Law Commission of Canada, Aug. 2006) (online:
http://dalspace.dal.ca/dspace/handle/10222/10229): J. Borrows, "Indigenous Legal Traditions In Canada"
(2005) 19 J. L. & Policy 167; J. Borrows, Canada's Indigenous Constitution (2008) (forthcoming)
[unpublished, manuscript on file with author, permission to cite/attribute granted] [Borrows 2008].
156
Born in 1933, Vine Deloria, Jr. was a member of the Standing Rock Sioux (South Dakota), an activist,
author (e.g. Custer Diedfor Your Sins; God is Red), educator, executive director of the National Congress of
American Indians, lawyer, founder of the Institute for the Development of Indian Law, professor of law and
political science at the University of Arizona, professor of American Indian studies and history (adjunct in law,
political science, religion) at the University of Colorado, and one of the foremost American/Indian leaders and
thinkers. He died in 2005. See Vine Deloria, Jr., For This Land: Writings on Religion in America (Ed. with
Introd. James Treat) (New York: Routledge, 1999) at Introduction.
nations, which stemmed from an attribution "to people of foreign lands a sophisticated

knowledge of North American domestic affairs that they did not have or feel" (x). While

setting aside Deloria's disenchantment with the Third World ideology, he does note that in

"telling us what has happened to the Canadian Indians, [Manuel] somehow weaves into his

story the experiences and conditions of all aboriginal peoples around the globe" (xi).

As one thread in the Euro-centric pattern, Deloria notes that there is "presently no

place on earth that a people can live without either asserting their own political independence

against the European nations or attaching themselves to a European nation, (or nation

deriving its government from that tradition)" (xi). Asking "why it has to be that way"157 and

asserting that the Fourth World "calls forth in us the morality of law and human existence in

a more profound manner than any other vision of the world has ever done" (xi; original

italics), Deloria points to the depletion and inequitable allocation of resources around the

globe. Furthermore, after noting Manuel's calls for the Canadian Parliament and Christian

churches to fulfill their responsibilities and burdens, Deloria states that "[Manuel] is not

merely calling for new programs, more money, or additional sympathy" (xii). Instead,

Deloria affirms Manuel's call for a more painstaking task, whereby "the institutions of the

world [...] re-examine their own origins, the beliefs which brought them into being, and the

basis of integrity that lies beneath their formal structures. One can fulfill the letter of the law

in such a manner as to violate dreadfully its spirit, and this tendency to pervert the reason for

existence is all too familiar in today's world" (xii). Ultimately, in the powerful mode of

subjunctive history, Deloria concludes his foreword by invoking the potentially prophetic

157
Focusing on the 'Why' and 'has to be', Deloria's inquiries are in striking contrast to, for example, Lasswell's
strung-question, communications and politics procedurals: "Who (says) What (to) Whom (in) What Channel
(with) What Effect?" and "Who gets what, when, and how?". For one attempt at a more global historical
perspective, see Ken Coates, A global history of Indigenous peoples struggle and survival (New York: Palgrave
Macmillan, 2004).
nature of Manuel's Fourth World philosophy and vision: "No contemporary political and

economic structure has to be. Whatever structures do exist must eventually find a reason for

their existence above and beyond the political and economic values of today" (xii) (see also

Manuel at 18-19).

Yes, Indians Have Feelings

Having laid some groundwork for Manuel and Posluns' dialogic story (see "Authors'

Note" at xiii), it is worthwhile to return to one of MLV's speculations concerning ETI life

and compare it to one of Manuel's opening anecdotes. In addressing potential ETI

contingencies before settling upon their tripartite hierarchy of superior, similar, or inferior

sci-tech, MLV allude to unnamed human societies that lack affection and thus lack "true

rectitude" or moral responsibility due to their excessive individuality (MLV 976). Beyond

any perceived or productive gap, lag, or competition between law and science (or social and

natural sciences) discussed in the previous chapter of this thesis, which hopefully showed

how they both can sometimes manifest as a true community (both inclusive and exclusive), it

is this specific sentiment and this land of sentiment that seem to present a true "gap between

the myth of the Indian world as it has been generally represented to European North

Americans and the reality I have known" (Manuel 2). Identifying a "cornerstone" of the

myth to be the "belief that an Indian way of life meant something barbaric and savage, frozen

in time and incapable of meeting the test of changing social conditions brought about by new

technology" (2), Manuel notes that the myth springs from "confusing the particular forms in

use at one time with the values and beliefs they helped to realize" (2-3). This confusion

seems to characterize and deeply pervade MLV's tripartite policies (as well as Haley's

eventual move from the general inverted golden rule to specific protection policies that could

124
nonetheless lead to conflict and the reservations front-loaded in MLV's analysis). In this

way, Manuel foresees no real change without a real meeting, touching, and closing of the

gap. Echoing MLV's offhand hypothetical about societies lacking affection and rectitude,

Manuel illustrates the gap with a story from his days working as a lumber boom man on the

Thompson River:

Another worker with whom I often sat at coffee breaks said to me as he sat down, 'Can I ask
you a question that's been on my mind for some time?'

'Sure,' I said.

'Does Indians have feelings?' he asked.

'Yes, Indians have feelings,' I told him.

'You know, my wife and I often talked about this, and since you're my friend I felt you
wouldn't be offended if I asked you. We actually feel Indians is no different from dogs, no
feelings at all for kinship.' [3]158

Beyond feelings, but with feeling, Manuel anecdotally and programmatically sets out

contemporary challenges facing Aboriginals and some response to these challenges. Manuel

does so by describing a common understanding of the universe and threatened world view,

through spiritual attachment to the land, that distinguishes indigenous peoples' economic and

religious experience of colonialism from the more politically-focused encounter of

colonialism experienced by Third World nation-states (5-6).

Drawing inspiration from the teachings of his grandfather, Manuel emphasizes the

fact of aboriginal peoples' survival around the world and the potential for more than mere

survival in the future:

58
This strange contradiction of "you're my friend" coupled with "no feelings at all for kinship" — as well as the
identification with dogs - echoes the sixteenth and nineteenth century ethnological debates concerning the
humanity, degeneracy, or 'wildness' of American Indians (see Robert E. Bieder, Science Encounters the Indian,
1820-1880: the Early Years of American Ethnology (London: University of Oklahoma Press, 1986, at 6-8). On
related points regarding the historical and contemporary construction and reception of Aboriginal spirituality
and cosmology, see Darlene Johnston, Litigating Identity: The Challenge OfAboriginality, (forthcoming) (UBC
Press: 2008) [manuscript on file with author; permission to cite/attribute granted] ["Johnston"]. See also
Manuel at 6.

125
 As we view the North American Indian world today, we must keep in mind two things:
Indians have not yet left the aboriginal universe in which they have always dwelt emotionally
and intellectually, and the Western world is gradually working its way out of its former value
system and into the value system of the Aboriginal World.

Our celebration honours the emergence of the Fourth World: the utilization of technology and
its life-enhancing potential within the framework of the values of the peoples of the
Aboriginal World - not a single messianic moment after which there will never be another
raging storm [...]

The Fourth World is a vision of the future history of North America and of the Indian peoples.
The two histories are inseparable. It has been the insistence on the separation of the people
from the land that has characterized much of recent history. It is this same insistence that has
prevented European North Americans form developing their own identity in terms of the land
so that they can be happy and secure in the knowledge of that identity. [11-12]

Although too numerous to discuss completely here, Manuel's Fourth World thesis stems

from the above emphasis upon spiritual relationships with the land, the awareness of

ecological disaster and the social commodities of land, water and air (11), the use of story-

telling for "moral teaching" and "practical instruction" (37)159, the central notion and practice

of giving as the foundation of Fourth World social and economic citizenship (the "whole

foundation of our society [...] is summed up in one word: giving") (41)160, the importance,

even when there was "nothing to give", of doing something "to make yourself a part of the

household where you were a guest" (42) (as opposed, perhaps, to the alienating theory of

labour that creates exclusion through individual property)161, the connection between

Borrows also emphasizes the role of stories as potential cases - standing on their own for ILT and to be
harmonized with other Canadian law. See the story/case of Mandamin/corn at Borrows 2008,351-362.
160
On the notion of giving, but trying not to give the lie, in an academic-institutional context, see Rauna
Kuokkanen, Reshaping the University: Responsibility, Indigenous Epistemes, and the Logic of the Gift
(Vancouver: UBC Press, 2007). In her Preface, Kuokkanen also discusses the importance/necessity of
grounded knowledge in her approach, which stems from the physical, spiritual, and intellectual sustenance
provided to her and her people through the borderland/bond of the Deatnu river. For a multifaceted approach to
the complex notion, nonessentialized worldview, and logic of 'the gift' (not achieved here), see Kuokkanen,
Chapter 1. Manuel also discusses his experience with an alternative form of pedagogy grounded in mutual
dependence (129-134). Finally, see Borrows' description of the truly pluralistic, innovative legal education
program at the Akitsiraq Law School in Nunavut (Borrows 2008,192-195).
161
For a potential means of pitting Locke against himself (and further harmonizing 'ILT' with 'Canadian' law
by analogy to language and literature instruction), see G. T. Burns, Presenting America, encountering the
Philippines: Fulbright lectures (UP Press: Diliman, Quezon City, 1992) at 130 ("English versus Latin, Filipino
versus English: Theoretical and Historical Perspectives on Change in Language Study").
spiritual and material power (43), and Manuel's extension of the significance and practice of

such giving to the entire continent of aboriginal peoples (44).

The Explorers of Inner Space - Seen This Movie Before?

Manuel complements these positivist descriptions of Aboriginal historical values and

living traditions with contemporary anecdotes that serve as poignant responses to both

Haley's metalaw of an inverted golden rule and MLV's tripartite sci-tech hierarchy162.

Specifically, in a story that parallels the story told about law and ETI legal theory earlier in

this thesis, Manuel recounts the unique experience of the sixties for the Fourth World:

It was the decade in which we were rediscovered.

As in die earlier discoveries of European history, we knew where we were all the time. It was
the explorer who was lost. This time there were major differences on both sides. From our
point of view there was the distinct feeling that we had seen this movie before. And we knew
how it turned out. From the explorer's point of view it was different because this time some
at least knew mat they were lost. The explorers of the sixties came to the Indian world in
three different guises. [156-157]

Manuel actually 'responds' specifically to the fetish of sci-tech by noting mat: "Technologies are only the
tools through which we carry on our relationships with nature" (14). If law and war are sometimes described as
politics by other means, then this formulation provides a potential reversal through the transferable focus on the
relationship with nature (assuming some both transferability and more/less ideal types of relationships).
Manuel goes on to state that: "The Indian nations have given more to the world's technology man they have
received from it. But the calculation cannot be made in terms of levels of technology as a measure of
civilization. If every race prepared a list as long as this one, no one list would detract from the strength and
value of any other. Similarly, it was not to Europeans that the gifts were given, but to whoever had need of
them. Technology is the stew-pot of the global village. Every technical development from every culture,
nation, or race is contributed to the feeding of the whole community of man. [... ] The Indian list, in contrast to
the European one, also gives some important clues about differences in values and goals. Europe's most
important contributions that are still of value today seem either to be means of transport or instruments of war.
Most of the other things that were brought to North America by Europeans came from other parts of the world:
paper, print, gunpowder, glass, mathematics, and Christianity. [...] If Europeans learned to travel because of
poverty, perhaps we cultivated our relationship wim the land out of the need to survive" (15). Manuel's
characterization remains apropos when compared with my earlier chapters discussing nuclear/space age science,
technology, and engineering. Equally relevant, Manuel notes that "However good and useful those tools may
be to human welfare, there is nothing inevitable about the parallel development of the wisdom to use those tools
well" (98). While it could be argued that this last sentiment falls into Beebe's caricature of anxious, imperial
lawyers eager to fend off the threat and authority of science, I would argue (as above) that it could equally fall
into a 'community' of law and science category, with the modification that Manuel's Fourth World emphasis
upon some indigenous peoples' experience with colonialism, their resistance, and the survival of Aboriginal
traditions distinguishes the otherwise exclusionary, collusive aspects of First World communities of law and
science.
Before describing these guises, it is worth noting the parallels between Manuel's description

and the senses of loss, speculation, and respectively vague and concerted historical

forebodings illustrated by Haley's natural law/metalaw and MLV's policy-oriented

jurisprudence. Reading through their ETI speculation and my own introductory approach to

this thesis set out above, there is a distinct sense of having 'seen this movie before' and not

liking the purported ending (of history or otherwise).

The explorers of the 1960's that Manuel describes could roughly correspond to a

spectrum of legal approaches to ETI mirrored in the speculation of Haley, MLV, and others.

Manuel first describes "the youth who had lost their way into their own world amidst the

civil strife and continuing westward expansion of the United States. They were probably the

first European people ever to come to Indian reserves with nothing to sell" (157). However,

Manuel notes the new problem whereby "they did not want to possess our souls the way the

missionaries had, [but] they wanted us to possess their souls" (157). In part, these explorers

echo the situation of Haley's hypothetical metalawyers, seeking to 'do unto others as they

would have done unto them' (Haley 1963, 395). While not speaking against the desire or

ability to know the other, which Haley's exhaustion with anthropocentric law and its

excesses partially exemplifies, Manuel's report of the response draws out the tension inherent

to the gap-building and bridging mentioned above: "The best of our thinkers told them to

continue their search and tried to lend them some strength to continue the journey. They told

them it was forbidden for any man to give his song to another man until he was preparing to

die" (157). Beyond the individual injunction, Manuel further states the need to "discover

their own relationship with the land, the water, and the animals" (157), which would require:

1) discovering "their own song"; 2) "a ceremonial situation in which the song could be given

128
and received within the same spirit"; and 3) "find[ing] the roots of their own tradition" again

(157) in part to forestall the transmission of this loss (and its futile projection onto others) to

future generations. If the search for non-anthropocentric law, by doing unto others as they

would have done unto them, is not desirable for the naive, but well-intentioned youths, the

picture is grimmer for more determined metalawyers and/or policy-oriented explorers in the

veinofMLV.

Manuel describes the second group of discoverers, anthropologists, with a cutting,

unrelenting sense of humor:

They were not a new breed. They had been slipping singly into the Indian world in a slow but
steady trickle for eight years or more. Now they came in hordes, until it became a
commonplace among Indian people that the average Indian family consisted of a man, a
woman, two children, and an anthropologist on summer vacation. Anthropologists, like the
youth, did not come to sell, only to take. If the youth were after our souls, the anthropologists
were after our minds. [158]

In criticizing the level of mis-directed funding to indirectly study poverty problems, versus

direct grants to the studied tribes for poverty solutions, and the intellectual, cultural, and

spiritual theft that often took place, Manuel emphasizes the need for mutual respect, sharing,

teaching, and friendship (as opposed to unilateral relationships). While Haley's maxim

conveys some of these qualities, or at least does not front-load potential command-and-

(mind) control strategies in the way of MLV, there is obviously always the potential for

naturalized conflict through the fiction of universalized rules of conduct163. Or, as Manuel

puts it in describing "these travelers into inner space":

There were exceptions, of course, to the selling rule. There were those who stood in our
kitchens and our Long Houses and said that we were not drying the fish, or cooking the corn
soup, or doing the dances according to the reference books with which they had prepared
themselves for this expedition. Sometimes they even offered to show us how it was done.
[158; emphasis added]

See discussion in Chapter Two, above, and Anghie at 20-24; Rauchhaupt at 3.

The final group of discoverers recalled by Manuel is government consultants. He notes that

they are "a far older breeder than anthropologists" and "in terms of taking without sharing,

they are without equal" (161). Manuel details the long history of commissions, inquiries,

panels, reports, studies, and recommendations that have characterized sovereign approaches

to the 'Indian problem' throughout the Canadian past and present. In setting out the ETI

spectrum, the efforts of these government consultants over the years most parallel MLV's

detailed policy analyses of segregation, possible extinction, over-population, reservation,

residential schooling, protection from special interests, and careful and technocratic

trusteeship and development towards assimilation and integration (read: termination)

(Manuel 161-171)164.

Whether speculative or all too real, the pervasive logic of domination and unilateral

dependence seems to continuously rob us of hope and run through almost all forms of legal

theory (well-intentioned, ill-intentioned, ambivalent, or otherwise). Exhaustion has set in

and even close reading, which the literary New Critics eventually realized could not save the

world, has its limits - even more so when discussing examples of dynamic legal traditions

that emphasize the retention of their dynamism through oral practice and traditions (e.g.

Borrows 2008, 190). However, the problems that began this thesis persistently remain: how

to bring a world, which is sometimes already too painfully close, even closer together? Is

For Canada's own, universal version of a U.S.-style termination policy that was proposed and withdrawn
after national protest, see Statement of the Government of Canada on Indian Policy (The White Paper, 1969)
(Ottawa: Queen's Printer) (online: http://www.ainc-inac.gc.ca/pr/lib/phi/histlws/cp 1969_e.htmr). For an
excellent anthropological analysis of the White Paper from a policy-making perspective, see Sally M. Weaver,
Making Canadian Indian policy: the hidden agenda, 1968-1970 (Toronto: University of Toronto Press, 1981).
See also: Harold Cardinal, The Unjust Society (Edmonton: Hurtig, 1969). Manuel also discusses the instrument
of residential schooling for instilling inferiority through deskilling, de-languaging, and dehumanizing that only
left him with memories of being hungry, speaking English, industrial training, and being called a heathen) (59,
66). See also, Basil Johnston, Indian School Days (Toronto: Key Porter Books, 1988); Indian Residential
Schools Settlement Agreement (online: http://www.ainc-inac.gc.ca/rqpi/il-eng.asp?action=sa b apr_25_2008):
& Indian Residential Schools Truth and Reconciliation Commission (online: http://www.trc-cvr.ca/).

130
there any role for law and legal theory to play? If so, is it possible to shed the messianic role

cast for the still-only-straw-men from Mars (where ice has recently been found) - but without

simply transferring the need for salvation to indigenous legal theories/traditions and their

interpretive communities (Borrows 2008,10-11)? Unfortunately, I think not (yet).

Indigenous Extraterrestrial Legal Theory? Between a Rock and a Not-Yet Place

In setting out both the vitality and viability of ILT in the tripartite, pluralist Canadian legal

system (common law, civil law, and indigenous law), Borrows points to the maintenance of

ILT by various interpretive and constitutive indigenous communities (including academics),

as well as the recognition and affirmation of ILT in Canadian law (Borrows 2008, 8)165.

Among other many other topics, Borrows outlines some examples of ILT (including

Mi'kmaq, Hodinohso:ni, Anishinabek, Cree, Metis, Carrier, Nisga'a, and Inuit) (Borrows

2008, chapter 3). Noting the dominated place but resurgent reciprocity of the civil law in

relation to the common law in Canada, in part thanks to the Supreme Court, Borrows holds

out similar hope for the growth of ILT despite others' fears of contaminating what he argues

have always been non-autonomous traditions (Borrows 2008, 148-153)166. Noting the de-

familiarizing mode of resolving ambiguities in ILT (for most Canadians) (Borrows 2008,

155), Borrows emphasizes the greater protection of difference between French and English

juridical, cultural, linguistic, and other traditions and argues for the extension of such respect

to Indigenous peoples. Echoing some of the themes raised by Haley, MLV, and Fasan with

165
See R. v. Vanderpeet [1996] 2 S.C.R. 507 at para. 40; R. v. Mitchell [2001] 1 S.C.R. 911 at para. 8; Section
35(1) of the Constitution Act, 1982, Schedule B to the Canada Act, 1982, (U.K.) 1982 c. 11. (Borrows 2008, 12-
13, but see 333-334). See also Johnston 2008 and discussion of R. v. Sparrow, [1990] 1 S.C.R. 1075 and
related, subsequent cases with different, declining weighting given to Aboriginal perspectives at SCC (14-25).
Note, however, that Borrows also sets out the important differences between civil law and ILT (e.g.
population differences, greater constitutional protection, restriction to private law, transnational context). For a
generally related discussion (from a bi-juridical perspective) see also: R. Leckey, "Prescribed by Law/C/ne
Regie De Droit" (2007) 45 Osgoode Hall L.J. 571 (positing "a legal culture ofdroit administratif quybycois:
that is, administrative law, practiced in French, within Quebec" with a different approach to public law that
"troubles the assumption that Canadian public law derives uniformly from British law").

131
respect to working assumptions prior to speculation on legal relations with alien

intelligences, Borrows also sets out certain key criteria as both necessary and ideal for

relating ILT and common/civil law traditions in Canada: intelligibility, accessibility

(including the flip-side necessity of trust and the potential intellectual property of some

specific ILT (195-199)), equality, applicability and legitimacy167.

Having laid the briefest, barest groundwork for the extensive approach undertaken in

what appears as a likely candidate for Borrows' magnum opus, it might be helpful to recount

an Anishinabek legal doctrine mentioned toward the end of his book that is most relevant to

the Utopian desires for one-world mentalities discussed throughout my thesis (whether

through my introductory intuitions, Haley's inverted golden rule, MLV's optimal public

order, and the transference from IGY geophysics to Third World common resource regime

geopolitics). Detailing Anishinabek origin stories and the significant, constitutive context of

the Great Lakes region, Borrows describes the core (albeit not unanimous) spiritual,

linguistic, secular-cultural, political, and legal principle of the earth's sentience, agency and

legal personality as a living being (Borrows 2008, 308-310, 314)168. In order to illustrate this

principle, Borrows refers to a legal example concerning the desire by the Chippewas of the

Nawash on the Cape Croker Indian Reserve (his home) to move the site of an annual large

Although I lack both the space and time for close comparison here/now, Borrows' thorough, specific
organizing assumptions could be usefully compared to those of Haley, MLV, and Fasan with respect to forms of
ETI (as well as modes of interdisciplinary legal scholarship - see notes in Conclusion section below). On
another note, Borrows' discussions on expanded (potentially transnational) indigenous citizenship are
particularly interesting and deserve further study (especially in connection with other transnational citizenship
and quasi-citizenship debates) (Borrows 2008, 210-220).
168
Obviously, this concept is extremely nuanced and, despite my and others' caveats about misrepresentation, it
is best to at least read it for yourself. However, part of the nuance described by Borrows comprises the notion
of scale, which is partially familiar from legal geography theory. More specifically, in sketching the complexity
of membership sensitive to local formations of the earth, Borrows notes that "The ability to relate to the earth on
different scales feeds a multiplicity of citizenship rights and responsibilities for Anishinabek people and the
earth. A person could be simultaneously a Clan (dodem) member, Anishinabek, Canadian, American, and a
world citizen. Likewise, the earth can concurrently be a planet, geological plate, continent or small rock"
(Borrows 2008, 311).

132
summer festival/powwow to a different, larger location, which entailed building a road over

an area containing a large, ancient rock formation (alvar).

Cognizant of potential judges' skeptical views if asked to adjudicate the competing

interests of the earth, the community, and the state for "the building of a road over old barren

rock, through an empty, unused field" (324), Borrows' explanation of the alvar's significance

is worth quoting at length here:

The alvar is a limestone plain composed of dolostone bedrock with a surface that is almost
completely exposed to the air. The alvar is among the oldest exposed stone in Ontario, having
an age in excess of four hundred and forty million years. For many Anishinabek the alvar is a
story-teller that recounts the time when the land was younger and covered by shallow tropical
seas. It is related to the surrounding limestone escarpments and fossil strewn beaches formed
when the area once likely resembled the Great Barrier Reef of Australia's north-eastern coast.
Furthermore, in those areas where a very thin layer of organic matter covers the alvar it
accommodates a unique community of resilient mosses, lichens and plants which are very
well adapted to extreme conditions of intense cold, heat, drought and flooding.

The alvar is also home to spiritually significant 'spirit trails' which wend their way through
the area. Family stories amongst the Anishinabek speak of the place as having significant
sacred power with accounts of bear-walkers, deceased relatives and supernatural transformers
traversing over the area. Armed with this knowledge, there was consultation, debate,
discussion, direct experience on the land, prayer and persuasion when making a decision
about the alvar's use. Scientists and Anishinabek lawyers, band councillors, grandmothers,
Elders, artists, medicine people, community employees and others participated in a process
that very strongly drew on Anishinabek law respecting Anishinabek spiritual beliefs.
Ceremonies were conducted and traditional teachings reviewed. This led to a decision to stop
the prairie's development to respect and show reverence towards the life force of what others
might regard as barren rock.

This brief review of Anishinabek law demonstrates that Anishinabek beliefs concerning the
earth as a living being can be legally recognized and affirmed. It also shows how Anishinabek
law can lead to land being accorded political citizenship with its other close relations. The
attentiveness to land's character and sacred power give the earth an important place within
this jurisprudential system. [Borrows 2008, 315-317]

The multiplicity of relationships between the rock, its surroundings, inhabitants, and visitors

parallels the potential multiplied affiliations of people in different scales and places (see

previous note). While Borrows presents the initial application of the Anishinabek law, tied

but not necessarily completely reducible to spiritual beliefs, as interdisciplinary, communal,

and affirming in the "decision to stop the prairie's development," the interaction of the legal

personality of the living earth/alvar with Canadian constitutional protections and common
law fares much worse . Akin to the Equatorial Countries' arguments about the GSO, the

dominant First World legal concepts and interpretive communities lead to legal

incommensurability and scientific unintelligibility. Within this discussion, Borrows points to

the structural shortcomings of the common law that mirror the similar foreclosures made by

Haley and MLV in their speculations seeking to open the frontiers of outer space and

encounter ETI:

After some initial promise, the common law as applied within section 35 seems to be
collapsing back into itself and interpreting Aboriginal and treaty rights through non-
Aboriginal categories and principles. In fact, it might almost be argued that resort to its own
contextual categorizations is integral to the distinctive culture of common law's practices,
customs and traditions. [Borrows 2008, 334]

Borrows further criticizes the 'integral to the distinctive culture test' under s. 35(1)

jurisprudence and the impossible folly of searching for pristine, pre-contact, authentic, and

static evidence that transforms inherently fluid legal, cultural, and religious/spiritual

traditions into "past-tense cultures" (Borrows 336-339; original italics).

Darlene Johnston makes similar criticisms in her analysis of the case law, which

points to the specific susceptibility of Haley's metalaw that seeks to treat the other as they

would have us treat them. From the perspective of the court and the lawyer, onus makes

much, if not all, of the difference in such decisions. Discussing R. v. Vanderpeet [1996] 2

S.C.R. 507, Johnston notes Lamer C.J.'s decision to qualify Sparrow and "take into account

the aboriginal perspective, yet do so in terms which are cognizable to the non-aboriginal

Indeed, Borrows goes into fine detail about the litany of potential cultural and juridical roadblocks to a
hypothetical Anishinabek case testing the ability of the 'living earth' doctrine to block a government-driven
prairie-road development project, via both the section 2(a) protection of the "freedom of conscience and
religion" in the Charter of Rights and Freedoms in Part I the Constitution Act, 1982, and the recognition and
affirmation of existing Aboriginal and treaty rights of Aboriginal peoples in s. 35(1) in Part II of the
Constitution Act, 1982 (Borrows 2008, 317-346). Among many other problems, the particular cultural
construction of the law and elision of colonial violence in terms of territorial, geographical, and spiritual
dispossession (336) are discussed (along with shifting government/plaintiff onuses and different ways of
valuing the land that might preclude the possibility of Aboriginal title arguments where Anishinabek law
requires non-occupation but the common law test requires proof of continuous occupation to the present (340)).

134
legal system" (550), but contrasts it with L'Heureux Dube J.'s dissent, where the "burden of

cognizability is reversed. The onus is on the judiciary to arrive at an interpretation that

'gives the rights meaning to the natives'" (589). While formally establishing the potential for

an Aboriginal perspective through Sparrow and s. 35(1) (with Haley, ETI life, and 'as they

would have us treat them'), the potential remains both unrealized and familiarized by the

Canadian constitutional and common law tradition through the basis of jurisdiction and the

quintessentially legal technique of onus-shifting (as with the 'Vitorian' ability to twist

aspirational metalaw back into an anthropocentric golden rule).

From the topics discussed throughout the thesis, it is clear that the integral resort to

one's own/home contextual categorizations is not confined to the common law or natural law

theory alone. Instead, this ventriloquist jurisprudence pervades natural law theory (with the

ideal of radical difference accommodated), positivist policy-oriented jurisprudence (with the

assumption of identity or transparent knowledge and acculturation), and even the

development of legal and sci-tech facts that 'speak for themselves' in some communities of

law and science to the exclusion of others to purely moral, political, cultural, religious,

magical or other types of communities. In this way, Borrows concludes that Anishinabek

religious beliefs, such as the legal personality of a living earth, "could be protected through

law" but is stymied by the "difference cultural source, commitments, receptiveness and

institutional interpretive framework" of Canadian constitutional law (347). As noted by

17ft

Barbara Herrnstein Smith in a different, but relevant context , the only way forward is

through the exercise of constant effort, which Borrows identifies through "Indigenous dispute

resolution bodies, governments and tribal courts" and their ability to "provide greater

See note 175, below.

135
visibility for Aboriginal law within Canadian constitutional structures, and perhaps one day

lead to significant breakthrough in that forum" (Borrows 2008, 348).

Ultimately, Borrows concludes with a statement seemingly equally apposite, albeit

not intended, for space law and ETI legal theory: "There are clear and contrasting

alternatives for how Canadians might construe their relationships to the land. Whether the

earth is thought of as living or dead, our laws have some distance to travel before they fully

understand or potentially embrace some of these alternatives" (Borrows 2008, 348). As

noted above, the temptation to strategically utilize Fourth World legal theory, in this case the

specific Anishinabek spiritual and legal tradition of a living earth, can be overwhelming.

While well intentioned in my desire to move away from domination and colonialism in ETI

legal theory , it still results in a certain ventriloquist effect that takes the subject of

Borrows' book and reduces it to a critical method. This reduction mirrors the 'inaccurate but

necessary' construction and mobilization of a plurality of worlds within the universe of my

thesis (First World ETI legal theory, Second World Cold War competition, Third and First

World communities of space law and space science, and Fourth World postcolonial legacies

and legal traditions animating and instilling value to the land, earth, and (by extension) outer

space and celestial bodies). Despite my best efforts, you will likely be in a better position to

see which planets have been reduced to mere 'planetoids' for the sake of my speculations.

Obviously, even the positive nature of such an intention is debatable, given calls for privatization or the
ability to make profit and 'incentivize' outer space activities. Similarly, Borrows notes that: "The idea that the
earth can form a purpose and is a teleological being is obviously open to criticism. It does not accord with
many people's perception of the earth as inanimate. The earth appears to have few of the characteristics of
purposeful life; for most there are no discernable thoughts, communication patterns or conscious life-ways.
Furthermore, earth's agency potentially threatens the very core of North American economic
organization in the twenty first century. If the alienation and use of land is limited by one small group's
spiritual beliefs this could impose unacceptable costs on development for others" (Borrows 2008, 331; added).

136
CONCLUSION - NATURE OF MASTERS

Living Traditions, Common Heritage, & Futility/Humility

In constructing a way forward that must contend with the desires of First World ETI legal

theory and the failures of Third World approaches to international law, in part due to the

exclusive communities of law and science, I feel eerily akin to the naive youth or grasping

anthropologist described above by Manuel. While there are suggestions, traditions, and

cosmologies of multiply spirited people, animals, bones, rocks, and other aspects of the

environment in the Fourth World legal theory and ILT that I have read, I begin to feel like I

am missing the point172. Clearly, these approaches would present better theories for truly

novel approaches to intelligent extraterrestrials and life as we do not know it. Although it

should be clear by now that a better legal theory on ETI life was not necessarily the point ,

For example, see Manuel; D. Johnston at 7,40; Borrows 2008 at chapter 3 (discussing Mi'kmaq,
Hodinohso:ni, Anishinabek, Cree, Metis, Carrier, Nisga'a, and Inuit examples of indigenous legal traditions)
and at 309-318 (earth's soul; living earth; kinship with all living things; land's sentience; earth's 'legal
personality'; 'living land' hardwired into Anishinabek language & provisionally held for the unborn; reciprocity
between humans and rocks that is alien to Western law/politics); Palys & Victor, ILT. Also, see Manuel at 255
(re labour theory of property, but reality that people did not create or take part in the creation of the land, which
are sources of life) and Borrows 2008,22. Compare with Coyle & Morrow at 39-49, 207-211 (re Locke's
labour theory; need for paradigm shift, intergenerational justice, and moving beyond sustainable development).
See also: Julian T. Inglis, Ed., Traditional Ecological Knowledge Concepts And Cases (Ottawa: International
Development Research Centre, 1993) (out of print; online: http://www.idrc.ca/openebooks/683-6/). On the
nuanced importance of natural place/physical environment to thought and thinking (and with sensitivity to
indigenous traditions without ecological determinism), see Christopher J. Preston, Grounding Knowledge:
Environmental Philosophy, Epistemology, and Place (Athens: University of Georgia Press, 2003).
173
What would be the point of admirably expanding the legal-theoretical calculus beyond intelligent life to non-
intelligent life, the entire environment, and even the dead? Would such an effort even be admirable - or
justifiable - as the aliens continue not to land? Of course, on earth, the 'aliens' continue to land (by land, sea,
and air) every day. And the plight of non-human animals, the environment, and even the dead remains
painfully relevant — their contemplation without need of justification. But it's not very likely that such re-
evaluations and gap-closing would occur over the distance of a distant thought experiment like ETI legal theory.
However, following Haley and MLV's works, and directly citing Fasan, there have been more recent efforts.
For example, see: Margaret S. Race & Richard O. Randolph, "The Need for Operating Guidelines and a
Decision Making Framework Applicable to the Discovery of Non-Intelligent Extraterrestrial Life" (2002) 30
Adv. Space Res. 6 at 1583-1591 (from the respective perspectives of a SETI scholar and theologian, the authors
argue for an adaptation of SETI signal detection principles (verify & confirm the signal, inform
international/national governments & NGO bodies, publicize widely, and prohibit any response without
consultation at 1584) to Astrobiological principles being followed by NASA in the exploration of other planets,

137
Fourth World theory and ILT do speak to the gaps and blind spots in Haley, MLV, Fasan,

and others' theories. Indeed, in discussing the flaws of common law approaches and myths

about the land in Canada, Borrows does advert to the possibility that "recognition of

Indigenous legal traditions could connect Aboriginal and other Canadians to land in ways not

possible under the current administration of common or civil law" in the specific historical

and advantageously "multijuridical" context of Canada, where emphasis is placed upon

moving away from domination and colonialism (Borrows 2008, 160-163; 203-205).

After sketching Utopian, archaeological, analogical, interdisciplinary, and

eschatological desires in my Introduction, which were criticized in Chapter One by Posner

and Beebe, but still similar to those expressed in the speculations of Haley and MLV (and

Fasan) in Chapters Two and Three, I went looking for redemption. Like a good gap-filler, I

thought it possible to analyze the inadequacies of the two dominant ETI legal theories, which

coalesced around inaccurate colonial histories, erased decolonized/postcolonial legacies, and

black-boxed portrayals of science and technology (Chapter Four). Locating the most critical

tools at hand, which even Third World scholars have admitted must come from beyond their

such as Mars). Ultimately, Race & Randolph recommend this extension of the basis of the ethical principles
underlying SETI Principles: 1) doing 'good' science (e.g. following proper scientific procedures, such as
making data available to other qualified scientists) and 2) communicating with humankind (e.g. informing other
parties, organizations, and the UN Secretary and prompt, open, wide dissemination through scientific and public
media) (1586). The authors actually regard the interaction with non-intelligent life as more complex than (radio
signal) interaction with intelligent life due to the increased likelihood of the former (1587). For these reasons,
they advise two further ethical principles: 3) do no harm to Earth (e.g. to the "biota and ecosystems of planet
Earth" through cross-contamination on return to Earth via samples or 'hitchhiker' materials); and 4) "Respect
and do not substantively (or perhaps irreparably) alter the extraterrestrial ecosystem" (1587) based on each
species' entitlement to free development on their own evolutionary trajectories (1588; albeit "scientifically
legitimate enterprises" not causing irreparable harm or disruption would be allowed). Ultimately, the authors
conclude the need to expand from current, anthropocentric & geocentric precautions (emphasizing planetary
stewardship) in astrobiological principles to "cosmocentric" principles recognizing "ethical obligations to
extraterrestrial ecosystems" (1589). See also: J. Billingham, "Cultural Aspects of the Search for Extraterrestrial
Intelligence" (1998) 42 Acta Astronautica 10 at 711-719; Patricia M. Sterns, "SETI and Space Law:
Jurisprudential and Philosophical Considerations for Humankind in Relations to Extraterrestrial Life" (2000) 46
Acta Astronautica 10 at 759-763; P.M. Sterns, "Metalaw and relations with intelligent beings revisited" (2004)
20 Space Policy 123-130.

138
fragmented rubric, I sought out better theories in the Fourth World (Chapter Five). But

ultimately, Manuel seems to suggest the need to seek out one's own song for an

emancipatory, if not Utopian, legal tradition.

However, having seen:

• the tragedies played out in colonial natural law and pre- and post-war
positivism;

• the equally uninspiring blindness and tunnel vision of heads-up or heads-

down science, technology, engineering & empirical approaches to the law;

• the failures of first-wave Third World approaches to international law,

science, and development due to internal and external pressures and
fragmentation; and,

• the uncertainties of simultaneously global and local post-Third World (not

necessarily all-Fourth World) attempts at survival and resistance that are
additionally burdened with our desire that they (or we through them) speak
truth to the lie-giving promise of the law,

I begin to realize that I may not know how to sing. Beyond my naive, self-interested,

scholarly hope that there is more to law than the necessary but insufficient appearance of its

legitimacy. And, where this more-than-meets-the-eye version or vision of law has gone

wrong, that it is then possible to say and do something about it (with the added conviction

that the saying is also doing something and the doing also says something).

From all of the perspectives that regard the law — Euro-American, Indigenous,

Canadian, international, etc. — as a living tradition , it is clear that there is another concept

of the common heritage of mankind that needs to be enshrined within the mansions and

Pandora's boxes of our memories and ETI legal theory. Beyond intellectual Trojan horses

that extend and create relationships of 'unilateral dependence' and domination, Manuel and

Borrows advocate for humility that attempts to genuinely meet and close the gaps in our

174
E.g., Manuel at 215; Borrows 2008 at 9,12-13,432; Koskenniemi at 516-517; Kennedy, ILTai 101-104.
heritage by acknowledging and apologizing for the common denominator of colonialism.

For instance, citing the first Japanese visit and apology to China since World War II, Manuel

notes that the "way to change the historical reality is by acknowledging it as our common

heritage" (262). However, while mutual recognition of the common heritage of mankind is

necessary, and predicated on humility rather than arrogance (Manuel 263), there is the danger

that the exchange from humility might simply prove to be another form of acquisition.

Indeed, Manuel argues that: "The kinds of giving are as many and as varied as the

gifts and the givers. Most difficult to satisfy is the person who gives to you because the gift

for which he hopes in return is his own identity. It is unlikely that you can give to him what

he is seeking. And there is a great temptation to give him your own identity instead"

(Manuel 265). In terms of role-reversal, this type of exchange could be potentially beneficial

or productive - talking about opposing viewpoints, competing epistemologies, academic

disciplines . However, in the face of the reduction and loss described by Manuel, of which

See Borrows, "Seven Generations" at 23-24 & Manuel 262 (re internal & external humility). Also, Palys &
Victor, ILTat 34-35; Borrows 2008 at 74-79 (including important caveat against fetishizing written texts - his
own or others - to oral, living traditions or privileging certain summaries as forms of legal judgment). On this
point, see also: S. Owen, "Analogy, Archaeology, and Archaic Greek Colonization" in H. Hurst & S. Owen,
Ancient Colonizations: Analogy, Similarity, & Difference (Duckworth: London, 2005) at chapter 1 (discussing,
among others, how analogical reasoning forms the heart of archaeology; weak/strong forms of analogy; and
unbalanced privileging of textual records); C. Smith & H.M. Wobst, Indigenous Archaeologies: Decolonizing
theory and practice (New York: Routledge, 2005).
7
See the constructivist epistemological accounts in Barbara Herrnstein Smith, Scandalous Knowledge:
Science, Truth and the Human (Durham, NC: Duke University Press, 2005) at ch. 5 ("Disciplinary Cultures and
Tribal Warfare: The Sciences and the Humanities Today") (gap between 'two cultures' not pathological
condition to be healed but natural outcome of human dynamics & need all forms of knowledge-seeking (126));
B.H. Smith, Belief & Resistance: Dynamics of Contemporary Intellectual Controversy (Cambridge, Mass.:
Harvard University Press, 1997) at ch. 1 ("The Unquiet Judge: Activism without Objectivism in Law and
Politics") & ch. 8 ("Microdynamics of Incommensurability: Philosophy of Science Meets Science Studies")
(good legal solutions only through continuous monitoring and striving to modify (17-18); incommensurability
of ideas and hope for switch at the end of the day (152)). Akin to Smith (and Latour), Sally M. Weaver also
discusses the potential Babel of interdisciplinary incommensurability in her anthropological account of the 1969
White Paper policy-making in Making Canadian Indian policy: the hidden agenda, 1968-1970 (Toronto:
University of Toronto Press, 1981). Weaver writes that: "In both the documentation and the interviews it was
evidence that individuals often talked past each other because of their different constructions of reality —
their own world view, values, ideology, and professional training. For some, the term 'development,' for
instance, meant economic development (capital, jobs, resource development, managerial skills), while for those
I remain wary due to my thesis' method for recuperating law from the gaps exemplified by

Haley, MLV, and the communities of law and science, the possibility of mutual intellection

remains as promising and perilous as test case litigation177.

Manuel communicates this tension at the very end of The Fourth World in citing the

French philosopher and theologian Teilhard de Chardin:

If the white man also stays in North America another 10,000 years, he too will become Indian.
If you think I mean wearing buckskin and living in wigwams, you are mistaken. I mean in
gaining a feeling for this land. It is your only survival, [de Chardin qtd. in Manuel, 266]

In response to this prophecy/prescription178, Manuel comments that he hopes de Chardin is

wrong because: "We do not have anything resembling ten thousand years remaining to us to

make that transition if we are to survive. Either you or I. [...] I hope you join with us along

the way. Please understand if we do not feel we can wait for you" (Manuel 266).

with social work training and community development experience it meant broadscale social development,
fostering skill in such areas as education, leadership, work, and communication. The professional backgrounds
of the policy-makers - be it in administration, law, social work, sociology, community development and adult
education, physics, computer science, or economics - provided them with a particular frame of reference
through which they viewed the problem and sought the solution. Although senior civil servants are
theoretically 'generalists,' able to synthesize many different kinds of information and perspectives, their
backgrounds understandably led to varied interpretations of events and to the systematic exclusion of
certain types of information: a proposal considered sound by one official was described as 'a bunch of
sociological crap' by another; what made good sense to one person was considered 'an absurdly legalistic
interpretation' by another; graphs and flow charts prepared by one official for cabinet's edification were
considered 'useless drawings' or 'pretty pictures' by another, and so on. There is no reason whatever to
expect civil servants to be less immune to cognitive frameworks they derive from their professional
training and experience than other professionals - including academics - but the myth of the 'generalise
persists." [xi; emphasis added]. See also, G. Teubner, "The Invisible Cupola: From Causal to Collective
Attribution in Ecological Liability" in Teubner et al., eds., Environmental Law and Ecological Responsibility:
the Concept and Practice of Ecological Self-Organization (Toronto: Wiley & Sons, 1994) at 32-35.
177
Dawnis Kennedy draws out this tension in describing the (at least) dual role of Anishinabe legal orders: "The
courts may not understand the purpose of the ways that were given to the Anishinabe; they may believe that
their only value is to structure our relationship to the Canadian state. [...] The ways that were given to the
Anishinabe were not given merely to aid our people in securing rights and recognition from others. They were
not given to us merely so that we might retain a cultural continuity with our ancestors. The ways that were
given to the Anishinabe were given to us to support our efforts to pursue good lives." [Kennedy, ILT, 104] See
also A. Lajoie, "Introduction: Which Way Out of Colonialism?" in ILT; Borrows 2008 at 85-93 (courts'
misunderstanding and misconstruing of, e.g., Mi'kmaq wampum belts and other indigenous legal records, and
the relationship between law, history, and Canadian courts treating ILT as frozen history not living system).
178
See B.H. Smith, Belief & Resistance (1997) at ch. 8 ("Microdynamics of Incommensurability: Philosophy of
Science Meets Science Studies"), noting the incommensurability of ideas and the hope that they can switch
places at the end of the day (152).

141
 Ultimately, Haley and McDougal's theories on space aliens are as (irrelevant today

as when they were first written. Nonetheless, just as much today as on the days that they

were written, they exhibit some patterns and structures of thinking that closely resemble, or

even repeat, those patterns of thought in more relevant areas of the law and life where such

theories serve as the models for action and otherwise maintain traditions of exclusion,

inequality, and violence. As noted above, and at the very least, these speculative works have

always been prime examples of the law's relationship to both its own partial history and the

existing 'alien' intelligences of other academic disciplines or legal theories/traditions179.

While it might seem unnecessary to write back to these speculations and all their

relations, here and now, it is at least guaranteed that the story of this particular attempt at a

response (which begins and ends with the same speculative discipline and desire) has not

gone unread.

For e.g., Borrows discusses law's relationship to history and the need to view ILT from indigenous legal
perspectives as opposed to (frozen) historical perspectives that would forestall any "agreement on the 'facts' of
Virgin-born Peacemakers, stone canoes, living rocks, talking plants, gossiping animals, transforming humans
and supernatural beings from other worlds" (Borrows 2008,93). Also, see B. Latour, Science in Action: How to
Follow Scientists and Engineers through Society (Cambridge, Mass.: Harvard University Press, 1987) at 6-7
(extending Dante's "Abandon Hope All Ye Who Enter Here" to his own "Abandon Knowledge About
Knowledge All Ye Who Enter Here"), 16-17 ("Babel of disciplines" & meta-rule of method), & 222 ("cycle of
accumulation that allows a point to become a center"; see also Bourdieu, "Force of Law"). For related
discussions showing how the desired 'enlightenment' that might spring from such an exchange, grounded in
humility, could also lead to conquest, fears of it, or recurring identity crises, see, e.g. E. Weinrib, "Can Law
Survive Legal Education?" (2007) 60 Vanderbilt Law Review 401-438; C. Valcke, "Comparative Law as
Comparative Jurisprudence-The Comparability of Legal Systems" (2004) 52 American Journal Of Comparative
Law 713-740. Bart van Klink & Sanne Taekema, "A Dynamic Model of Interdisciplinarity: Limits and
Possibilities of Interdisciplinary Research into Law" (2008) 8 Tilburg Working Paper Series on Jurisprudence
and Legal History 2 (v. 1.0) (online: http://ssrn.com/abstract=l 142847) (discussing competing perspectives
between pragmatist and positivist conceptions of fact/value distinctions and potential (in)comparability &
(in)compatibility of disciplines; outlining dynamic interdisciplinarity and five types of interdisciplinary
research: heuristic, supporting, multidisciplinary, interdisciplinary, and integrated interdisciplinarity); James
Boyd White, "Establishing Relations Between Law and Other Forms of Thought and Language" (2008) 1
Erasmus Law Review 3 (re translation, anti-translation or imperialism (law & economics), and self-reflexive
law/legal education) (online: papers.ssrn.com/sol3/papers.cfm?abstract id=l 142827): Mathias M. Siems, "The
Taxonomy of Interdisciplinary Legal Research: Finding the Way Out of the Desert" Working Paper (August 13,
2008) (online: http://ssrn.com/abstract=l 146162). (discussing four kinds of interdisciplinary research - basic
type, akin to Klink & Taekema's heuristic; advanced type 1 (research questions not about the law); advanced
type 2 (non-legal research methods, i.e. 'scientific'); & advanced type 3 (combining non-legal topics with
scientific methods)). See also: Jack M. Balkin & S. Levinson, "Law and the Humanities: An Uneasy
Relationship" (2006) 18 Yale JL. &Hum. 155.
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Ed. C. Sagan, Communication with extraterrestrial intelligence (Cambridge: MIT Press,

1973).

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O. Schachter & Christopher C. Joyner, United Nations Legal Order (2 vols.) (Cambridge:
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R. Sekuler, Star Trek on the brain: alien minds, human minds (New York: W.H. Freeman,
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G. S. Shostak, Sharing the universe: perspectives on extraterrestrial life (Berkeley, Cal.:

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Barbara Herrnstein Smith, Scandalous Knowledge: Science, Truth and the Human (Durham,
NC: Duke University Press, 2005).

B.H. Smith, Belief & Resistance: Dynamics of Contemporary Intellectual Controversy

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C. Smith & H.M. Wobst, Indigenous Archaeologies: Decolonizing theory and practice (New
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G.C. Spivak, transl., J. Derrida, Of Grammatology (Baltimore: Johns Hopkins University

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1967)).

W. Sullivan, Assault on the unknown: the International Geophysical Year (New York:
McGraw-Hill, 1961).

Frank J. Tester & Peter Kulchyski, Tammarniit (Mistakes): Inuit Relocation in the Eastern
Arctic, 1939-63 (Vancouver: UBC Press, 1994).

E.P. Thompson, Whigs and Hunters: the Origin of the Black Act (New York: Pantheon
Books, 1975).

D. G. Tumminia, Alien worlds: social and religious dimensions of extraterrestrial contact

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Kyle R. Ward, History in the making: an absorbing look at how American history has
changed in the telling over the last 300 years (New York: New Press, 2006).

P. Ward, Life As We Do Not Know It: The NASA Search for (and Synthesis of) Alien Life
(Vnew York: Viking USA, 2005).

Sally M. Weaver, Making Canadian Indian policy: the hidden agenda, 1968-1970 (Toronto:
University of Toronto Press, 1981).

C.G. Weeramantry, Human rights and scientific and technological development: studies on
the affirmative use of science and technology for the furtherance of human rights (Tokyo:
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C.G. Weeramantry, The Impact of Technology on Human Rights: Global Case-studies

(Tokyo: United Nations University Press, 1993).

A. Wendland, Science, myth, and the fictional creation of alien worlds (Ann Arbor, Mich.:
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R. A. Williams, Jr., Like a Loaded Weapon: The Renqhuist Court, Indian Rights, and the
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J. T. Wilson, I.G.Y.: the year of the new moons (Toronto: Longmans, 1961).

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Damodar Wadegaonkar, The Orbit of Space Law (Stevens & Sons: London, 1984).

Gennady Zhukov & Yuri Kolosov, International Space Law, trans. Boris Belitzky (Praeger:
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Chapters in Books, Conference Proceedings, Annals, etc.

Robert L. Barre, "Some Social Implications of Organizing for a Space Effort" in Mortimer
D. Schwartz, Ed., Proceedings of the Conference on Space Science and Space Law (South
Hackensack, N.J.: Fred B. Rothman & Co., 1964).

Lloyd V. Berkner, "Science, The Scientist and Space" in Mortimer D. Schwartz, Ed.,
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C.Q. Christol, "Telecommunications, Outer Space, and the New International Information
Order (NIIO)" in Frederick E. Snyder & Surakiart Sathirathai, Eds., Third World Attitudes
Toward International Law: An Introduction (Martinus Nijhoff: Boston, 1987).

P. Clark, "Representations of Aboriginal Peoples in English Canadian History Textbooks:

Toward Reconciliation" in Elizabeth A. Cole, ed., Teaching the Violent Past: History
Education and Reconciliation (Lanham, MD: Rowman & Littlefield, 2007).

N. Jasentuliyana, "Third World Perspectives of Space Technology" in N.M. Matte, Ed.,

Space Activities and Implications: Where From and Where To at the Threshold of the 80 's
(ICASL McGill University: Montreal, 1981).

H.D. Lasswell, "Anticipating Remote Contingencies: Encounters with Living Forms," in

A.G. Haley & M.D. Schwartz, Eds., Proceedings of the Fourth Colloquium on the Law of
Outer Space, International Institute of Space Law of the International Astronautical
Federation (Norman, Oklahoma: University of Oklahoma Research Institute, 1963).

H.D. Lasswell, "The Structure and Function of Communication in Society" in L. Bryson, ed.,
The Communication of Ideas: A Series of Addresses (New York: Institute for Religious and
Social Studies, 1948)).

Lubos Perek "The Scientific and Technological Basis of Space Law" in N. Jasentuliyana,
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Myres S. McDougal, Keynote, "Law and Public Order in Space" in Mortimer D. Schwartz,
Ed., Proceedings of the Conference on Space Science and Space Law (1963) (South
Hackensack, N.J.: Fred B. Rothman & Co., 1964).

J. Muldoon, "Discovery, Grant, Charter, Conquest, or Purchase: John Adams on the Legal
Basis for English Possession of North America," in C.L. Tomlins and B.H. Mann, ed., The
Many Legalities of Early America (Chapel Hill: University of North Carolina Press, 2001).

S. Owen, "Analogy, Archaeology, and Archaic Greek Colonization" in H. Hurst & S. Owen,
Ancient Colonizations: Analogy, Similarity, & Difference (Duckworth: London, 2005).

Fr. W. von Rauchhaupt "A Light from the Past to Show Up the Legal Problems of Our Age
of Space" in Haley & Heinrich, Eds., First Colloquium on the Law of Outer Space (The
Hague: Springer-Verlag, 1958).

George S. Robinson, "Space Law for Humankind, Transhumans and Post humans - Is There
a Need for a Unique Theory of Natural Law Principles?" (2008) Vol. 33 Annals of Air and
Space Law (Montreal: McGill University Press, 2008).

G.C. Spivak, "Can the Subaltern Speak?" in Williams & Chrisman, eds., Colonial Discourse
and Post-colonial Theory: A Reader (London: Harvester Wheatsheaf, 1994) (first published
in Larry Grossberg & Cary Nelson, eds., Marxist Interpretations of Literature and Culture:
Limits, Frontiers, Boundaries (Urbana: University of Illinois Press, 1988)).

G. Teubner, "The Invisible Cupola: From Causal to Collective Attribution in Ecological

Liability" in Teubner et al., eds., Environmental Law and Ecological Responsibility: the
Concept and Practice of Ecological Self-Organization (Toronto: Wiley & Sons, 1994).

Third World Network, "Modern Science in Crisis: A Third World Response" (final version
of Declaration of November 1986 "Crisis in Modern Science" Conference organized by the
Third World Network and the Consumers' Association of Penang) in Sandra Harding, Ed.,
The "Racial" Economy of Science: Toward a Democratic Future (Indiana University Press:
Bloomington, 1993).

Alex G. Vicas, "The New International Economic Order and the Emerging Space Regime" in
N. M. Matte, Space Activities and implications: Where From and Where To at the Threshold
of the 80's (Carswell: Toronto, 1981).

Journal Articles

M. Adas, "From Settler Colony to Global Hegemon: Integrating the Exceptionalist Narrative
of the American Experience into World History" (Dec. 2001) 106 The American Historical
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J. A. Andrews, Book Review (1965) 28 The Modern Law Review 5.

152
D.T. Anderson et al., "An Antarctic Research Outpost as a Model for Planetary Exploration"
(1990) 43 Journal of The British Interplanetary Society 499-504.

A. Anghie, "What is TWAIL: Comment" (2000) 94 Am. Soc. Int'l L. Proc. 39.

"Animal Law and Policy" (Winter 2007) 70 Law and Contemporary Problems 1-325.

B. Arneil, "John Locke, Natural Law and Colonialism" (Winter 1992) XIII History Of
Political Thought 4.

Jack M. Balkin & S. Levinson, "Law and the Humanities: An Uneasy Relationship" (2006)
18 Yale J.L. &Hum. 155.

B. Beebe, Note, "Law's Empire and the Final Frontier: Legalizing the Future in the Early
Corpus Juris Spatialis" 108 Yale L.J. 1737 (1999).

F. Bhabha, "Institutionalizing Access-to-Justice: Judicial, Legislative and Grassroots

Dimensions," (2007) 33 Queen's L.J. 139 - 178.

J. Billingham, "Cultural Aspects of the Search for Extraterrestrial Intelligence" (1998) 42

Acta Astronautica 10.

J. Borrows, "Indigenous Legal Traditions In Canada" (2005) 19 J. L. & Policy 167.

P. Bourdieu, "The force of law: toward a sociology of the juridical field." (1987) 38 Hastings
Law Journal 5.

R.M. Bratspies, "The New Discovery Doctrine: Some Thoughts On Property Rights And
Traditional Knowledge (Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and
International Law: Theoretical Approaches to International Indigenous Rights) (2007) 31
Am. Indian L. Rev. 315

J. Brunnee & S. Toope, "International Law and Constructivism: Elements of an Interactional

Theory of International Law" (2000) 39 Columbia Journal of Transnational Law 19-74.

Bradley Bryan, "Property as Ontology: On Aboriginal and English Understandings of

Ownership" (2000) 13 Can. J.L. & Juris. 3-31.

Carol R. Buxton, "Property in Outer Space: The Common Heritage of Mankind Principle vs.
the 'First in Time, First in Right' Rule of Property Law" (2004) 69 J. Air Law & Comm. 689-
707.

R. A. Carrigan, Jr., "Do Potential SETI signals need to be decontaminated?" (2006) 58 Acta
Astronautica 112.

Bin Cheng, Book Review, Law and Public Order in Space (1965) 16 U.T.L.J. 1.

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Elena Cirkovic, "Self-Determination and Indigenous Peoples in International Law" (2007) 31
Am. Indian L. Rev. 375.

V.F. Cordova, "Ecolndian: A Response to J. Baird Callicott" (1997) 1 Ayaangwaamizin:

International Journal of Indigenous Philosophy 1.

M. Crowe, "A History of the Extraterrestrial Life Debate," (June 1997) 32 Zygon 2.

H. Lasswell, "The Political Science of Science: An Inquiry into the Possible Reconciliation
of Mastery and Freedom," 50 Am. Pol. Sci. Rev. 961 (1956).

J. Derrida, "The Animal That Therefore I Am (More to Follow)," trans. D. Wills, (2001) 28
Critical Inquiry 2.

S. Dick, "Anthropology and the Search for Extraterrestrial Intelligence: a historical view,"
(Apr. 2006) 22 Anthropology Today 2.

Klaus Dodds, "The Great Game in Antarctica: Britain and the 1959 Antarctic Treaty" (2007)
Contemporary British History.

David P. Fidler, "Revolt Against or from within the West? TWAIL, the Developing World,
and the Future Direction of International Law" (2003) 2 Chinese J. Intl L. 29.

Robert G. Fleagle, "From the International Geophysical Year to Global Change" (1992) 30
Review of Geophysics 4.

Joanne I. Gabrynowicz, "Space Law: Its Cold War Origins and Challenges in the Era of
Globalization" (2004) 37 Suffolk U. L. Rev. 1041.

Eilene Galloway, "The Community of Law and Science" in First Space Colloquium (1958),
59-62.

Cole Harris , "How Did Colonialism Dispossess? Comments from an Edge of Empire"
(2004) 94 Annals of the Association of American Geographers 1.

A. A. Harrison, "Thinking Intelligently about Extraterrestrial Intelligence: An Application of

Living Systems Theory," (1993) 38 Behavioral Science 189.

A. A. Harrison & A. C. Elms, "Psychology and the Search for Extraterrestrial Intelligence,"
(1990) 35 Behavioral Science 207.

Cole Harris , "How Did Colonialism Dispossess? Comments from an Edge of Empire"
(2004) 94 Annals of the Association of American Geographers 1.

154
B. P. Herber, "The Common Heritage Principle: Antarctica and the Developing Nations,"
(Oct. 1991) 50 American Journal of Economics and Sociology 4.

W. Hsiung & C. Sunstein, "Symposium: Responses to Global Warming: The Law,

Economics, and Science of Climate Change: Climate Change and Animals" (June 2007) 155
U. Pa. L. Rev. 1695.

P. Hughes & M. Mossman, "Re-Thinking Access to Criminal Justice in Canada: A Critical

Review of Needs and Responses," (2002) 13 W.R.L.S.I. 1.

N. Jasentuliyana, "Third World Perspectives of Space Technology" in N.M. Matte, Ed.,

Space Activities and Implications: Where From and Where To at the Threshold of the 80 's
(ICASL McGill University: Montreal, 1981).

C.W. Jenks, "International Law and Activities in Space" (Jan., 1956) 5 The International and
Comparative Law Quarterly 1.

R. Leckey, "Prescribed by Law/Une Regie De Droit" (2007) 45 Osgoode Hall L.J. 571.

I. Mgbeoji, "Beyond Rhetoric: State Sovereignty, Common Concern, and the Inapplicability
of the Common Heritage Concept to Plant Genetic Resources," (2003) 16 Leiden Journal of
International Law 821-837.

Myres S. McDougal & Leon Lipson, "Perspectives for a Law of Outer Space" (1958) 52 Am.
J. Int'lL. 407.

MakauMutua, "What is TWAIL?" (2000) 94 Am. Soc. Int'lL. Proc. 31.

Obiora Okafor, "Newness, Imperialism, and International Legal Reform in Our Time: A
TWAIL Perspective" (2005) 43 Osgoode Hall L.J. 171.

Kenneth J. Pennington, Jr., "Bartolome de Las Casas and the Tradition of Medieval Law"
(Jun., 1970) 39 Church History 2.

Colin B. Picker, "A View from 40,000 Feet: International Law and the Invisible Hand of
Technology" (2001) 23 Cardozo L. Rev. 149.

R. Posner, Review of Myres McDougal et al., Law and Public Order in Space, 11 Harvard
Law Review 1370 (1964).

Margaret S. Race & Richard O. Randolph, "The Need for Operating Guidelines and a
Decision Making Framework Applicable to the Discovery of Non-Intelligent Extraterrestrial
Life" (2002) 30 Adv. Space Res. 6.

155
Balakrishnan Rajagopal, "From Resistance To Renewal: The Third World, Social
Movements, And The Expansion Of International Institutions" (2000) 41 Harv. Int'lL.J.
529.

Jouni Reinkikainen, "The Golden Rule and the Requirement of Universalizability" (2005) 39
The Journal of Value Inquiry 155-168.

W. Michael Reisman, "The New Haven School: A Brief Introduction" (2007) 32 Yale J. Int'l
L. 575.

J. Renard, "The Wild Man & the Extraterrestrial: Two Figures of Evolutionist Fantasy,"
(\9S4) 32 Diogenes 63.

Glenn H. Reynolds, Book Review, Studies in International Space Law (2000) 40 Jurimetrics
Journal 357

J. Spiller, "Re-Imagining United States Antarctic Research as a Defining Endeavor of a

Deserving World Leader: 1957-1991" (2004) 13 Public Understanding of Science 31-53.

S.G. Sreejith, "Whither International Law, Thither Space Law: A Discipline in Transition"
(2008) 38 Cal. W. Int'lL.J 331.

Anna Stanley, "Risk, Scale and Exclusion in Canadian Nuclear Fuel Waste Management"
(2006) 4 ACME: An International E-Journal for Critical Geographies 2.

A. Stanley, "Citizenship and the production of landscape and knowledge in contemporary

Canadian nuclear fuel waste management" (2008) 52 The Canadian Geographer 1.

Patricia M. Sterns, "SETI and Space Law: Jurisprudential and Philosophical Considerations
for Humankind in Relations to Extraterrestrial Life" (2000) 46 Acta Astronautica 10.

P.M. Sterns, "Metalaw and relations with intelligent beings revisited" (2004) 20 Space Policy
123-130.

Peter Suedfeld and Karine Weiss, "Antarctica: Natural Laboratory and Space Analogue for
Psychological Research" (2000) 32 Environment and Behavior 7.

Andrew F. Sunter, TWAIL as Naturalized Epistemological Inquiry (2007) 20 Cdn. J. L. &

Jurisp. 2.

Cass Sunstein, "The Rights of Animals" (Winter 2003) 70 U. Chi. L. Rev. 387.

J. C. Thomas, "Spatialis Liberum" (2006) 7 Fla. Coastal L. Rev. 579.

P. Tobias, "Opening the Pandora's Box of Space Law" (2005) 28 Hastings Int'l & Comp. L.
Rev. 299.

156
"Tribute: Myres S. McDougal: A Selected Bibliography" (1999) 108 Yale L.J. 961 and other
articles in the same volume.

C. Valcke, "Comparative Law as Comparative Jurisprudence - The Comparability of Legal

Systems" (2004) 52 American Journal Of Comparative Law 713-740.

V.D. Volkan, "Transgenerational Transmissions and Chosen Traumas: An Aspect of Large-

Group Identity" (2001) 34 Group Analysis 1.

E. Weinrib, "Can Law Survive Legal Education?" (2007) 60 Vanderbilt Law Review 401-
438.

Robert White-Harvey, "Reservation Geography and the Restoration of Native Self-

Government" (1994) 17 Dalhousie L.J. 587.

Clas G. Wihlborg & Per Magnus Wijkman, "Outer Space Resources in Efficient and
Equitable Use: New Frontiers for Old Principles" (1981) 14 Journal of Law and Economics
23-43)

David M. Wilkinson, "The fundamental processes in ecology: a thought experiment on

extraterrestrial biospheres" (2003) 78 Biol. Rev. 171-179.

Online Materials & Miscellaneous

Arctic relocations in the Canadian context, see: RCAP at http://www.ainc-

inac.gc.ca/ch/rcap/sg/sg29_e.html:

Battlestar Galactica: The Miniseries (2003 (T.V.))

Citizenship and Immigration Canada, A Look at Canada: 2007 edition (Ottawa: Minister of
Public Works and Government Services Canada, 2007) (online:
http://www.cic.gc.ca/english/resources/publications/look/index.asp))

Arthur C. Clarke to Andrew G. Haley (see online:

http://rescommunis.wordpress.com/2008/03/27/haley-archive-arthur-c-clarke-august-1956-
letter-on-gps-dbs-and-more/)

Bogota Declaration, (1978) 6 Journal of Space Law 193; or, online:

http://www.jaxa.ip/librarv/space_law/chapter_2/2-2-l-2_e.html.

J. Borrows, "Seven Generations, Seven Teachings: Ending the Indian Act" (commissioned
Research Paper for the National Centre for First Nations Governance, May 2008) (online:
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Declaration of Principles Concerning Activities Following the Detection of Extraterrestrial
Intelligence (adopted by International Academy of Astronautics, 1989) (online:
http://www.setileague.org/iaaseti/protdet.htm).

Stephen Doyle (online: http://rescommunis.wordpress.com/2007/ll/12/interview-dr-stephen-

e-doyle/).

Drake Equation, SETI website, online: http://www.seti.org/seti/seti-science/

"Ethics of Development-Induced Displacement" (EDID) (online: http://www.edid.yorku.ca/).

Robin Cooper Feldman, "Law's Misguided Love Affair with Science" (forthcoming) (2009)
Minnesota Journal of Law, Science & Technology (online:
http://papers.ssrn.com/sol3/Papers.cfm7abstract_id-1127569).

Father Pedro Funes, "The Alien is My Brother" (unofficial transl.)

http://padrefunes.blogspot.com/

Indian Residential Schools Settlement Agreement (online: http://www.ainc-

inac.gc.ca/rqpi/il-eng.asp?action=sa_b_aprJ25_2008).

Indian Residential Schools Truth and Reconciliation Commission (online: http://www.trc-

cvr.ca/).

Julian T. Inglis, Ed., Traditional Ecological Knowledge Concepts And Cases (Ottawa:
International Development Research Centre, 1993) (out of print; online:
http ://www.idrc. ca/openebooks/6 83 -6/

IPY 2007-2008 (online: http://www.ipv.org/)

"A Framework for the International Polar Year 2007-2008" by the ICSU IPY 2007-2008
Planning Group (International Council for Science, 2004), online: http://www.ipy.org/

Ethical Research Principles, and the specific project on "State-induced population

movements in the circumpolar North in the 20th and 21 st centuries (online:
http://www.ipy.org/index.php7/ipy/detail/moved_by_the_state/

Inventory of the President Edwin Harrison (1916-2001) Papers, 1930-1968 [bulk 1957-
1965], online: http://www.library.gatech.edu/archives/finding-aids/display/xsl/UA003).

F.L. Korsmo, "Science in the Cold War: The Legacy of the International Geophysical Year"
National Science Foundation Tokyo Report, Special Scientific Report #98-07 (April 7, 1998)
(online: www.nsf.gov/pubs/1998/int9814/ssr9807.docl.

Jason Krause, "Making Space Matter" (March 2008) ABA Journal Magazine (online:
http://www.abajournal.com/magazine/2008/03)

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Roger D. Launius, "Sputnik and the Origins of the Space Age" (online: <
http://history.nasa.gov/sputnik/sputorig.html>).

Law Commission of Canada, Justice Within: Indigenous Legal Traditions (Working

Discussion Paper) (Ottawa: Law Commission of Canada, Aug. 2006) (online:
http://dalspace.dal.ca/dspace/handle/! 0222/10229).

"Life as We Do Not Know It", Astrobiology Conference March 2005 (partial transcript),
online: www.astrobio.net/news/article2168 .html.

Limited Test Ban Treaty (1963) & Nuclear Testing,

www.epa.gov/rpdwebOO/rert/nuclearblast.html

John Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764
[1689]) (online:
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=222) at Book
II, Of Civil Government, Ch. V, Of Property, Sec. 49.

Donald N. Michael and Raymond A. Bauer in: International Affairs Seminars of

Washington, "American Reactions to Crisis: Examples of Pre-Sputnik and Post-Sputnik
Attitudes and of the Reaction to other Events Perceived as Threats," 15-16 October 1958,
U.S. President's Committee on Information Activities Abroad (Sprague Committee) Records,
1959-1961, Box 5, A83-10, Dwight D. Eisenhower Library, Abilene, Kansas (online:
http ://history.nasa. gov/sputnik/oct5 8 .html).

QUID (Quasi Universal Intergalactic Denomination, online:

http://www.travelex.co.uk/press/ENG/DOC_OUID 10042007.asp

George Manuel, [online: http://www.ubcic.bc.ca/about/george.htm] & [online:

http://landoftheshuswap.com/msite/gmanuel.php]

Marx, History Repeats Itself quotation, online: http://www.bartleby.eom/66/53/3 8153 .html.

Michael Posluns, [online: http://archivesfa.librarv.vorku.ca/fonds/ON00370-f0000382.html.

Privileges and Prerogatives Granted by Their Catholic Majesties to Christopher Columbus

(1492) {The Federal and State Constitutions Colonial Charters, and Other Organic Laws of
the States, Territories, and Colonies Now or Heretofore Forming the United States of
America Compiled and Edited Under the Act of Congress of June 30, 1906 by Francis
Newton Thorpe (Washington, DC: Government Printing Office, 1909)) (online:
https://portal.utoronto.ca/courses/l /Winter-2008-LAW292H 1 -S-
LECOlOl/content/ 871357J/ Columbus%201492.pdf).

"Riding the Third Wave: Rethinking Criminal Legal within an Access to Justice
Framework," (online: http://www.justice.gc.ca/en/ps/rs/rep/2003/rr03-5/rr03-5_01.htmn.

159
Mathias M. Siems, "The Taxonomy of Interdisciplinary Legal Research: Finding the Way
Out of the Desert" Working Paper (August 13, 2008) (online:
http://ssrn.com/abstract=l 146162).

Delbert R. Terrill Jr. (Colonel, USAFR), The Air Force Role in Developing International
Outer Space Law (Air University Press: Maxwell Air Force Base, Alabama, May 1999)
(online: http://www.au.af.mil/au/aul/aupress/catalog/books/Terrill_B69.htm).

Statement of the Government of Canada on Indian Policy (The White Paper, 1969) (Ottawa:
Queen's Printer) (online: http://www.ainc-inac.gc.ca/pr/lib/phi/histlws/cpl969_e.html).

United Nations Office of Outer Space Affairs (online:

http://www.unoosa.org/oosa/SpaceLaw/outerspt.html).

Bart van Klink & Sanne Taekema, "A Dynamic Model of Interdisciplinarity: Limits and
Possibilities of Interdisciplinary Research into Law" (2008) 8 Tilburg Working Paper Series
on Jurisprudence and Legal History 2 (v. 1.0) (online: http^/ssrn.com/abstract^T 142847).

Vatican on Aliens http://news.bbc.co.Uk/2/hi/europe/73 99661 .stm

Vienna Vision on Humans in Outer Space (2007), 2007 Vienna Conference on "Humans in
Outer Space - Interdisciplinary Odysseys" (by the European Science Foundation (ESF), the
European Space Agency (ESA) & the European Space Policy Institute (ESPI)) (online:
http://www.esf.org/research-areas/space/activities/inif-activities/follow-up-hios-vienna-
conference.html).

Franciscus de Victoria, De Indis et De Ivre Belli Relectiones, Ernest Nys, Ed., transl. J.P.
Bate (1532) (online: www.constitution.org/victoria/victoria_.htm).

James Boyd White, "Establishing Relations Between Law and Other Forms of Thought and
Language" (2008) 1 Erasmus Law Review 3 (online:
papers.ssrn.com/sol3/papers.cfin?abstract_id=l 142827).

Press

K. Connolly, "Court to rule if chimp has human rights", Guardian Observer (Apr. 1, 2007).

Fr. Gabriel Funes, "L'extraterrestre e mio fratello", L 'Osservatore Romano (May 14, 2008;
English edition).

Randel D. Hanson, "Indian Burial Grounds for Nuclear Waste" (Sept. 1995) 16 The
Multinational Monitor 9).

W. Kole, "Court won't declare chimp a person." Associated Press (Sept. 27, 2007).

160
Alfred Sauvy, "Trois mondes, une planete" L'Observateur (August 14, 1952).

Cases

City ofSherrill, NY. v. Oneida Indian Nation of New York, (2005) 544 U.S. 197,125 S. Ct.
147.

Johnson v. M'Intosh, (1823) 21 U.S. (8 Wheat.) 543.

Mabo v. Queensland (No. 2) (1992), 175 C.L.R. 168 (H.C.A.).

Oneida II, (1985) 470 U.S. 226.

Oneida I, (1974) 414 U.S. 661.

Western Sahara, Advisory Opinion, 1975 I.C.J. 12, para. 76-86 (Oct. 16).

R. v. Vanderpeet [1996] 2 S.C.R. 507.

R. v. Mitchell [2001] 1 S.C.R. 911.

R. v. Sparrow, [1990] 1 S.C.R. 1075.

Statutes

Royal Proclamation of 1763.

An Act for the better protection of the Lands and Property of the Indians in Lower Canada,
Statutes of the Province of Canada 1850, ch. 42.

An Act for the protection of the Indians in Upper Canada from imposition, and the property
occupied or enjoyed by them from trespass and injury, Statutes of the Province of Canada
1850, ch. 74.

An Act respecting the Management of the Indian Lands and Property, Statutes of the
Province of Canada 1860, ch. 151.

An Act providing for the organisation of the Department of the Secretary of State of Canada,
and for the management of Indian and Ordnance Lands, S.C. 1868, ch. 42.

An Act for the gradual enfranchisement of Indians, the better management of Indian affairs,
and to extend the provisions of the Act 31st Victoria, Chapter 42, S.C. 1869, ch. 6.

An Act to amend and consolidate the laws respecting Indians, S.C. 1876, ch. 18.
An Actfor conferring certain privileges on the more advanced Bands of the Indians of
Canada, with the view of training them for the exercise of municipal powers, S.C. 1884, ch.
28.

Indian Act, S.C. 1951, ch. 29.

Section 35(1) of the Constitution Act, 1982, Schedule B to the Canada Act, 1982, (U.K.)
1982 c. 11.

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies, Jan. 27,1967, 610 U.N.T.S. 205.

Presentations

Professor Barbara Stark (Hofstra Law School), presentation "Across the Universe" (2008
Osgoode GLSA Conference).

Reference

44B Am. Jur. 2d International Law § 36