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Unexplained Aerial Phenomena – Some Policy Issues

There is also no known international policy on who would own extra-terrestrial resources or technology that falls on earth or is brought down.  The international community may have to scramble (presumably in the United Nations) to carve out some principles. 

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Sailors assigned to Assault Craft Unit 4 prepare material from a high-altitude balloon recovered in the Atlantic Ocean on Feb. 10. [ Photo Credit: Petty Officer 1st Class Kris Lindstrom/ aviationweek.com]

Two possibilities exist: either we are alone in the universe or we are not alone.  Both are equally terrifying.  Arthur C. Clarke

All sorts of sightings seem to hover over American and Canadian skies these days.

On 13 February 2023 Brian Eversteen reported on Aviation Week that “President Joe Biden has ordered his national security team to begin a review of the policy implications of the series of sightings of unidentified objects that were then downed by U.S. fighter aircraft, as both U.S. and Canadian authorities attempt to recover debris and determine what the objects are.

U.S. fighters shot down a Chinese high-altitude surveillance balloon on Feb. 4. Then, over the course of three days (Feb. 10-12),they downed three other unidentified objects in Alaska, northern Canada, and Lake Huron near Michigan. Debris from the latter three objects have not yet been recovered, as crews face treacherous sea ice, wilderness and deep waters in the locations”. 

It has been reported that some of these objects are “benign” – whatever that means, and also that they may not be alien objects. However, it has also been reported (in Free Press Journal FPJ) that the “Chief of the US North American Aerospace Defense Command (NORAD) and Northern Command, General Glen VanHerck stated that he has not ruled out the possibility of extraterrestrial origin behind the recent series of shoot-downs of unidentified flying objects in North American airspace”.

In this context, it is relevant to note that the military shoots down unexplained aerial phenomena (UAP) primarily because of the threat they may post to civilian air traffic. Another reason might be that these  UAPs could pose a security threat to the country.

Some experts have (perhaps correctly) said that the appearance of the Chinese balloon should not have prompted the scheduled postponement of the Secretary of State  Of the United States to Beijing, arguing that diplomacy must go on. Purely from both a geopolitical and strategic perspective, the idea of increased surveillance  seems appropriate.  However, President Biden’s call for a policy review on such sightings sounds both pragmatic and politically  appropriate, given that the existing policy should first be carefully considered.

In  2021 The Office of The Director of National Intelligence of The United States  issued a Preliminary Assessment: of Unidentified Aerial Phenomena – Airborne objects not immediately identifiable. This assessment stated: “The limited amount of high-quality reporting on unidentified aerial phenomena (UAP) hampers our ability to draw firm conclusions about the nature or intent of UAP…in a limited number of incidents, UAP reportedly appeared to exhibit unusual flight characteristics. These observations could be the result of sensor errors, spoofing, or observer misperception and require additional rigorous analysis. There are probably multiple types of UAP requiring different explanations based on the range of appearances and behaviors described in the available reporting. Our analysis of the data supports the construct that if and when individual UAP incidents are resolved they will fall into one of five potential explanatory categories: airborne clutter, natural atmospheric phenomena, USG or U.S. industry developmental programs, foreign adversary systems, and a catchall “other” bin”.

International Policy 

International policy regarding UAPs emanating from terrestrial sources can be seen in Article 8 of the Chicago Convention of 1944 which provides that no pilotless aircraft can be flown over or land in the territory of a State without authorization of that State.

There is seemingly no known international policy or agreements on unexplained or unidentified arial phenomena that are of extraterrestrial origin. Avi Loeb writing to Scientific Journal in April 2021 says: “If extraterrestrials eventually arrive at our doorstep, the question is: how should we respond? Clearly, interstellar affairs are not an imminent policy concern for any nation at this moment, so there is no international protocol issued by the United Nations for what to do”.  Much would depend on international policy and law on State sovereignty over airspace and the law and policy of individual States.

If in a hypothetical context, one of these UAP is brought down or arrive on land with beings on board, there is some policy that has been  propounded, though not in a formal sense.  In 1953, Andrew Haley – US attorney and former vice president of the International Astronautical Federation – put forward in an article he published some basic tenets that should be followed if we were to encounter aliens  at wherever the meeting takes place: The principles Haley enunciated were a mixture of humanitarian law and natural law to the effect that aliens should be treated as any human would want to be treated, despite the fact that they come from somewhere else. This principle, later recognized as “metalaw had the following aspects: humans should not harm aliens; aliens and humans are equals; humans should recognize the will of aliens to live and to have safe space in which to do so.  

There is also no known international policy on who would own extra-terrestrial resources or technology that falls on earth or is brought down.  The international community may have to scramble (presumably in the United Nations) to carve out some principles.  In this case, the fundamental question would be : would the State in whose territory the property lands own the property? Or, would the international community ascribe analogy that lies in the Outer Space Treaty (OST) – that property that comes from outer space is the province of all mankind? Would the analogy be taken from the Outer Space Treaty ( which incontrovertibly applies to activities in outer space) that  prohibits  national appropriation by claim of sovereignty, by means of use or occupation, or by any other means? Alex Gilbert and Morgan Brazilian writing in The National Interest say “While the ownership and use of space resources under the OST remains hotly debated, prevailing legal opinions increasingly indicate the use of space resources may be permitted”.

It remains to be seen.

National Policy

In the case of UAP that has its genesis terrestrially and falls on the territory of a sovereign State the picture is somewhat clearer as principles of State sovereignty – which have been extensively discussed and established – would take over, giving way to applicable laws within the territory of that State.  In pursuance of Article 8 of the Chicago Convention, a State flown over can exercise its sovereign right to take measures as deemed fit to protect the interests of its people and of that State. Article 1 of the Chicago Convention provides that all States (not only those that have ratified the Convention) recognize that States have sovereignty over the air space above their territories. The Permanent Court of International Justice, when requested for a definition of “air space” in the 1933 Eastern Greenland’s Case, was of the view that the natural meaning of the term was its geographical meaning. The most fundamental assumption that one could reach from this conclusion is that air space is essentially geo-physical, meaning that it is space where air is found. Simplistically put, “air space” has been considered as going upwards into space from the territorial boundaries of a State and downwards to the center of the Earth, in the shape of an inverted cone. This theory, advanced mathematically, in terms of space where air is found, would encompass the atmosphere, which has is layered into components starting from the troposphere (from sea level to about 10 kilometres); the stratosphere ( from about 10 to 40 kilometres up); the ionosphere ( from about 40 to 375 kilometres); and the exosphere ( from 375 to 20,000 kilometres). Based on this methodology, a recent development in aerospace – the sub-orbital flight, which goes up to about 62.5 miles (100 kilometres) above the landmass of the Earth, would hover somewhere in the lower level of the ionosphere, has prompted the conclusion that it is a space flight traversing outer space, while others would maintain that the vehicle does not leave the Earth’s atmosphere and therefore is airborne.

This inexorably ascribes to States the sovereign right to enact domestic laws to the exclusion of other States.

Ruwantissa Abeyratne

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.

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