International Law and Popular Culture Symposium: International Law as Science Fiction, or, if My Law’s Not Real, Neither is Yours

[Cristian van Eijk (@crisveijk) is an international lawyer researching the international law and history of the outer space commons. He is also part of the International Law Working Group of the IAU and UNCOPUOS Dark and Quiet Skies Conference. He holds an LLM in Public International Law and a BA in International Justice from Leiden University, and is in the final stages of an accelerated BA in Law at the University of Cambridge.]

Preface

I research international law in space. As such, I am often received by international lawyers with a half-smile and a half-joking relegation to science fiction. The insinuation there is that space law must be little more than sci-fi, either because its subject seems better fit to some distant future, or because space does not seem as ‘urgent’ a risk to human dignity, unlike crises here on Earth. Conversely, my colleagues from non-law and space backgrounds react to space law in the opposite direction, seeing it as old, outdated, and obsolete. Therefore, I write this response not as an international or a space lawyer, but as a sci-fi and fantasy fan – and one who knows a failure of imagination when I see one.

I.

Just over sixty years ago, in 1959, representatives of eighteen countries gathered around a table to write some fanfic. The United Nations had entrusted them with the task of imagining a future. I mean that literally – half of the mandate of this Ad Hoc ‘Committee on the Peaceful Uses of Outer Space’ (UNCOPUOS) was to assess:

1. “[t]he future organizational arrangements to facilitate international cooperation in” space, and
2. “[t]he nature of legal problems which may arise in the carrying out of the programmes to explore outer space”.

However, by their first meeting, only two states had launched a grand total of just 20 satellites. They had no template to reference – the Antarctic Treaty was only halfway negotiated and not yet drafted, while the four treaties from UNCLOS I left key questions unanswered. The few scholars who’d considered law in space by then had taken one giant leap into becoming punchlines – a joke retold this summer on The Good Fight. In short, those eighteen states were being asked to write science fiction.

And they knew it. As the General Assembly debated what would be the ad hoc UNCOPUOS mandate, Costa Rican Ambassador Gonzalo Ortiz Martin stood up. “If, when I was in high school,” he said, “I had dreamed that one of my colleagues would one day, in an international body, discuss the possible claiming of outer space, we would have believed that the reading of Jules Verne, which fascinated those youthful hours, had taken his mind.” (A/C.1/PV.987, at 16) Spain agreed – in fact, the idea of law-making in the void was so novel, so imaginative, a Nazi representing a fascist government started citing Orwell in the UNGA (A/C.1/PV.992, at 12).

II.

But I’m not here as a lawyer, so let’s talk about science fiction. The definition of science fiction is a complicated question – to quote Mon favourite Calamari, “It’s a trap!” For now, I’ll settle on this. Science fiction imagines worlds where development(s), often but not always technological, shifts the rules of reality in ways that make some change possible. That development might be locked in the past, or something imagined for a possible future; the change could be a nightmare or a utopia, or anywhere in between. So sci-fi functions as entertainment, but is also a way of modelling potentialities, and “a mode of awareness, a complex hesitation about the relationship between imaginary conceptions and historical reality unfolding into the future.” (Istvan Csicsery-Ronay, Jr., 1993).

Science fiction has featured in various enculturated contexts for thousands of years, from Babylonian creation myths, to One Thousand and One Nights, to Jules Verne. It plays a key role in capturing public engagement in law- and policy-making, but also in perpetuating Empire and its prerequisite logics (Csicsery-Ronay Jr., 2003). The beauty of sci-fi is that many worlds are possible – perhaps its best examples are in antitotalitarian, Black, Indigenous, African, and postcolonial registers. This kind of sci-fi often uses legal concepts like self-determination “as a means of ending strife and tension, not as a means of creating it” (Somali Ambassador Yusuf Dualeh, at 9). I’m reminded of recent books by African diaspora authors like A Master of Djinn by P. Djèlí Clark, Raybearer by Jordan Ifueko, and Son of the Storm by Suyi Davies Okungbowa.

But the truth – sometimes the ugly truth – is that sci-fi inspires futures situated in the context of its present. The dawn of the Space Age in the mid-1950s inspired worldmaking like Star Trek, Foundation, Dune, but also a Japanese sci-fi renaissance, India’s anti-nuclear rhetoric (p. 17), and anticolonial criticisms in Kenya and Zambia. Together, space and imagination helped foment radical internationalisms and solidarities: as Philippine Ambassador Francisco Afan Delgado told the UNGA in 1958 (at 26), “We belong to the space age.”

I have said before that international law is the most expensive form of science fiction. By ‘expensive’, I mean in bookshops, though I’m sure the ICC would appreciate the 2.5x higher budget of Avengers: Endgame. The comparison of international law and fiction is not new, but it bears repeating. At its core, international law-making is a process of imagining another world and then rewriting the rules to make that change possible. Sometimes that change is tangible; often it is not. Sometimes, it depends on who is looking. But regardless, it remains ‘real’.

III.

Some might call what UNCOPUOS’ members did ‘worldmaking’. But since I’m writing this as a sci-fi fan, I might also call it ‘fanfiction’. Either way, they took international legal doctrine into a sandbox world with no rules, to build what castles they could. And they did pretty well: within months, six more countries joined, then another four, until by 1962 the group numbered twenty-eight states. The group included a former GA President (Víctor Andrés Belaúnde), a former US Supreme Court Justice (Arthur Goldberg), the  first woman Legal Counsellor at the British Foreign Office (Joyce Gutteridge CBE), a future ICJ Judge (Manfred Lachs), a future UN Secretary General (Kurt Waldheim), and an invisible-but-collegiate Secretary (Oscar Schachter). Their imaginative, consensus-based process allowed for experimentation with some wacky new ideas, like ‘international responsibility’ and ‘state liability for harm’, now part of our canon.

Their first work, a non-binding Declaration of Legal Principles, received unanimous General Assembly acclaim in 1963. Immediately, it began to inspire its own international legal fanfic. What if, asked up-and-coming writer Bin Cheng, that unanimous approval by a newly independent Third World gave that Declaration enough momentum to become international legal canon, via ‘instant custom’? To a doctrinal purist that was laughable then, but less so things lawyers call ‘legality’ and ‘subjectivity’ (or what a sci-fi nerd calls ‘canon’) had already begun to open. Today, on the other end of that event horizon, we discuss (quasi-)subjects of international law like persons, peoples, cities, and rivers; rulemaking ‘from below’ by ‘vernacularisation’; and nonbinding sources of law like the Artemis Accords. The line between canon and fanfic, between law and not-law, grows ever thinner.

Sometimes, fanfic can even spiral into whole new worlds – Everlina Maxwell’s Winter’s Orbit comes to mind. In the same way, space law began to generate spinoffs of its own. As UNCOPUOS negotiated, the United Kingdom, France, and a few others co-authored their own work, the European Launcher Development Organisation. Meanwhile, the Declaration’s fans demanded a sequel with even more pizzazz – something that would really change things. In 1966, UNCOPUOS drafted the Outer Space Treaty. The United Kingdom had an idea – what if international organizations could sign a multilateral treaty? They could sneak their fanfic into canon, and a whole lot besides! The group put it in – and I hear those ‘international organisations law’ folks have done rather well for themselves since.

IV.

“The science-fiction dreams of former years have become the urgent reality of today,” said ITU Secretary-General Gerald Gross to the UN Conference on Science and Technology for Development in 1963 (at 38). “Never before has the world as a whole embarked on such an adventure.”

While the world he imagines sure sounds lovely, most of the real world weren’t invited to the UN Space Law Convention. Of 28 members, only three members were Latin American, just five represented Asia from Lebanon to Mongolia, and of the four African members, Chad, Morocco, and Sierra Leone were often absent. Just like any sci-fi fandom, the loudest in the room used gatekeeping and technobabble to exclude those they deemed unworthy. From UNCOPUOS’ first meeting in 1961, the US purposely emphasised the scientific and technical side of their work to prevent debate over general legal principles of space. In 1963, five of eleven Global South UNCOPUOS members chose to stay home.

“[Science fiction] is a genre of empire,” wrote Istvan Csicsery-Ronay, Jr. in 2003. Two years later, Anthony Anghie explored the ways that international law and its implicit ideologies (re)produce the conditions that make empire possible. These critiques, now decades old, remain in many ways unresolved. We like to pretend we can change our stories by letting different authors write the same canon. But, from over here in my sci-fi utopia, it seems like the problem is more fundamental than that – one of which sorts of stories we choose to take seriously, and when we decide to suspend disbelief.

V.

The UN Space Law series features five treaties and five expanded-universe Declarations released from 1963-1996, though many fans only consider the 1967-1975 core series as canon. Even then, as intimated in the preface, there is an increasing tendency in the space community to dismiss the treaties because they’re considered irrelevant to today’s world.

This is where approaching international law as science fiction becomes more than a gimmick. The claim that space law is not relevant as a field of international law is another version of the claim that science fiction is irrelevant to the real world. But we know from empirical study and history that sci-fi and law co-inspire each other. International lawyers encounter science fiction all the time in terms like ‘common heritage of humankind’ (at 238), ‘right to food’, and ‘ecocide’. Each of those terms imagine worlds where legal fictions can shift the rules of our realities, and make change possible. 

Second, those who discount an aspirational treaty like the Outer Space Treaty because it doesn’t predict their situated present are asking the wrong questions. Sci-fi is not an exercise in divination; it is a way of imagining futures through the lenses of past and present – “all stories about the future are actually about the now.” Sci-fi is thus always referential and positioned. As Octavia Butler wrote, “to try to foretell the future without studying history is like trying to learn to read without bothering to learn the alphabet.” The question is not what matches up to reality, but what futures the author imagined, which they excluded, and why. This is the calculus the ICJ uses to determine when and how law can evolve via interpretation (Dispute Regarding Navigational and Related Rights, para 64).

For example, Dune was published at the same time as the Space Law series. Its recent adaptation, which enjoyed 23 times the UN’s 2020 space budget, has penetrated the zeitgeist like a slow blade. It has been victim to comparisons ranging from the Invasion of Iraq, the opioid epidemic, 9/11, and the 2000s oil market. Now, I firmly believe art is yours to interpret, and I’m not about to insist background reading is required to see Timothée and his jawline get high in the desert (though if you do, make it this by fellow  ̶s̶p̶a̶c̶e̶ ̶l̶a̶w̶y̶e̶r̶ sci-fi fan Haris Durrani). Those comparisons all cite events long after Dune’s publication, yet we so easily recontextualise its themes to our present. Isn’t it objectively weird, how swiftly we discount one imagined future as ‘outdated’ but invest $200 million in two of its contemporaries? On the other hand, it would be weird if I walked out of Dune ten minutes in, because neither sandworms nor Messianic alien warrior-twinks seemed applicable to my life.

Perhaps, before we set aside the past’s imagined worlds because they don’t match ours, we should ask who imagined them, when, and why. Maybe that question could show us new worlds to explore. We might choose to see the Space Treaties as battlefields where many canons fought for dominance, or as the Third World’s first and last flawed chance to write rules for the sky. Maybe then, we wouldn’t erase them so quickly. We might then see them as a Foundation to build atop, or just celebrate the story for what it was, did, and meant.

Perhaps this was never about realism, imagination, science fiction, or change at all, but the political choice to let pragmatism limit the possible. Perhaps the solution, as Csicsery-Ronay, Jr. says, is for lawyers and writers alike to “be the unacknowledged legislators you are supposed to be. Imagine the resistance for us. Imagine some way out of here.”

The Post-Credits Scene

In October 1957, the Soviet Union launched the Sputnik into orbit, beating the US in its supposed ‘race’. The American national mood was dour, with a shortage of congratulations and an excess of blame. Congress planned hearings, investigations, and the rolling of heads. Then, Istvan Csicsery-Ronay (Sr.), a recently arrived Hungarian refugee with deep experiences of Communism, conflict, and totalitarian regimes, wrote a letter to the Washington Post.

“Shouldn’t we be happy?” he asked, with a brevity like a raised eyebrow. “The ‘Geneva Spirit’ triumphed. The Russians finally adopted Eisenhower’s proposal on open sky inspection.” Here, beneath the concise international legal analysis, beneath even the critique of rivalrous jingoism, lies the heart of it. “The new requires the old by necessity,” his son and science fiction scholar Istvan Csicsery-Ronay, Jr. wrote 50 years later. “As long as history is conceived in terms of breakthroughs and innovations, the archaic idols of the past paradoxically retain power.” Science fiction, whether in storytelling or treaty-making, shows us the beauty of the possible. But to uproot law, or science fiction, from their shared genre of empire is not a given – it requires conscious work, many worldviews, and the courage to imagine.