Understanding Law via Science Fiction: A Look at the Antarctic Treaty Through the 1982 Film “The Thing”
By: Jeff Caviston
Initially one may ask, why write a legal analysis about a B-level horror flick from the 1980s? Well, in addition to being extremely entertaining (and giving me a reason to re-watch it), “The Thing”[1] poses several interesting hypotheticals for how existing legal systems might deal with potential contemporary situations—albeit some more fictional that others.[2] Specifically, because technological advances have allowed more human habitation on Antarctica, there is an increased risk of and need to ameliorate human conflict with other humans[3] and the environment.[4], [5] Contrariwise, the film stands in sharp juxtaposition to the spirit of that legal system by offering a rather ironic twist to the treaty’s altruistic objectives and providing some examples of its failures.
The Antarctic Legal Regime
The Antarctic Treaty,[6] signed in 1959, and its progeny (collectively known as the Antarctic Treaty System, or ATS) are a set of agreements between the various countries conducting research on Antarctica.[7] Generally speaking, the Treaty preserves the whole Antarctic continent for “peaceful purposes only,” e.g. scientific exploration and research.[8] Accordingly, Article 1 “prohibit[s], inter alia, any measures of a military nature.” Moreover, to further the purposes of the Treaty, the parties are required to devise environmental policies.[9] Subsequent agreement has further fleshed out these environmental policies, with provisions protecting native species, prohibiting the introduction of non-native species, and controlling pollution.[10]
While the countries party to the treaty retain their sovereign rights, with their citizens ostensibly remaining subject to their respective domestic laws,[11] disputes arising between signatories regarding the treaty itself may be resolved by the International Court of Justice (“ICJ”).[12] Additionally, the signatories are liable for certain conduct in derogation of the ATS.[13] However, jurisdictional issues regarding the application of general domestic laws to conduct that occurs on Antarctica remain unresolved and problematic.[14] Though the ATS as an international agreement is effective to the extent the parties are willing to abide by it, the signatories have codified its provisions in their domestic laws.[15]
Applying the Antarctic Treaty System to The Thing
“The Thing” tells the story of a crew of American researchers at a remote Antarctic research station who encounter a protean extraterrestrial that assimilates with and devours other living organisms. During the course of their encounter, the film highlights conflicts—those between humans, man-and-nature, and, of course, human-and-alien—which offer a backdrop to apply the legal principles of the ATS.
Incident with Norwegian Researchers
The film begins immediately with homicide. While frantically attempting to hunt down a Malamute (spoiler: it’s not actually a dog) with grenades and assault rifles, two Norwegians run afoul of the American researches and wind up dead—one accidentally blows himself up with a grenade while the other is shot by the station commander after firing into the American’s base.
This situation presents two legal consequences. First, as pointed out above, is homicide, with the initial issue being under which country’s jurisdiction does the conduct fall. With the events occurring at or near the American base, American law would likely govern.[16] And given the unprovoked nature of the attack, the station commander’s killing of the Norwegian would probably be excused as self-defense.[17] Second, given the weaponry used, e.g. grenades and assault rifles, the attack may constitute a violation of the ATS’s prohibition against the militarization of Antarctica. In such case, Norway could be subject to diplomatic sanctions or brought before the ICJ by the other signatories to the ATS.[18]
The Thing as an Non-Native Species
Confused by the apparent attack by the Norwegians, the researchers visit the Norwegian’s recently-burned down base, where they find some unusual—and gruesome—specimens. More importantly, it becomes clear that the Norwegians had discovered an alien organism frozen in the Antarctic ice, but which has since been thawed out.
As if being assimilated and killed off by the alien wasn’t bad enough, the Norwegians also likely violated environmental provisions of the ATS. Specifically, by extracting the alien from the ice, and subsequently failing to dispose of it, the Norwegians introduced a non-native species into Antarctica in derogation of Article 4 of Annex II.[19] Moreover, with the researchers aware that the alien is a non-native Antarctic species that poses a threat to the Antarctic (and global) environment, they risk being exposed to liability for failing to prevent an environmental emergency.[20] That said, to the extent the alien’s actions post-thawing are “of an exceptional character, which could not have been reasonably foreseen,” the researchers maybe be exempt from liability.[21]
Destruction of the Base
As they begin to comprehend the implications of the alien’s assimilation abilities and to prevent the alien from escaping to a more populated area, the crew begins to sabotage the base, eventually blowing up their laboratory and living quarters. The film ends with the remaining survivors watching as their base is reduced to ashes and waiting for the frigid Antarctic weather to overpower the remaining flames.
Unfortunately, the destruction of the base—in addition to leaving the survivors to freeze to death—may have exposed the United States to liability for polluting Antarctica. Annex III sets various requirements for waste disposal, particularly of hazardous substances (e.g. fuel), and permits the burning of waste that cause relatively few harmful emissions.[22] Though the Article 12 provides some leeway in emergencies, it also requires immediate notice be given to all signatories of the ATS.[23] Thus, in so far as Annex VI would apply and the other signatories care to enforce the ATS, the United States may have to pay the clean up costs.[24]
Conclusion
Though largely tongue-in-cheek, this analysis of The Thing offers a quick look at the very real legal structure that exists on Antarctica. And while the ATS addresses many of the contemporary problems on the Antarctic continent, it is silent or vague on issues that may arise in the near future—let’s hope those issues don’t include murderous aliens capable of eradicating human life.
[1] The Thing (Universal Pictures 1982).
[2] While the movie was released in 1982, I am assuming for the purposes of this analysis that the events depicted occurred under the contemporary legal framework.
[3] See Bryant Rousseau, Cold Case: Crime and Punishment in Antarctica, N.Y. Times (Sept. 28, 2016), https://www.nytimes.com/2016/09/29/world/what-in-the-world/antarctica-crime.html. For example, Antarctica had its first possible case of murder in 2000. Id.
[4] See Pollution and Waste, Austl. Antarctic Division (Aug. 24, 2012), http://www.antarctica.gov.au/environment/pollution-and-waste
[5] Additionally, despite its limited scope and relative obscurity, the Antarctic legal regime stands as a hallmark achievement of international legal cooperation and may serve as the basis for contemporary and future multinational endeavors. See Antarctic Treaty, NTI (Oct. 30, 2017), http://www.nti.org/learn/treaties-and-regimes/antarctic-treaty/. For example, with mankind’s subsequent, and especially more recent, utilization of outer space, the ATS has served as the framework for regulating off-world activity. See Outer Space Treaty, U.S. Dep’t of State, https://www.state.gov/t/isn/5181.htm (last visited Mar. 6, 2018).
[6] Antarctic Treaty, Dec. 1, 1959, 402 U.N.T.S. 71 [hereinafter “Antarctic Treaty” or “Treaty”].
[7] Antarctic Treaty, U.S. Dep’t of St., https://www.state.gov/t/avc/trty/193967.htm (last visited Mar. 6, 2018).
[8] Antarctic Treaty, art. 1.
[9] See id. art. IX, § 1(f).
[10] See Annex II to the Protocol on Environmental Protection to the Antarctic Treaty: Conservation of Antarctic Fauna and Flora, art. 3, 4, Oct. 4, 1991, 30 I.L.M. 1455 [hereinafter “Annex II”]; Annex III to the Protocol on Environmental Protection to the Antarctic Treaty: Waste Disposal and Waste Management, Oct. 4, 1991, 30 I.L.M. 1455 [hereinafter “Annex III”].
[11] See Antarctic Treaty, art. IV; see also id. art. VIII
[12] Id. art. XI.
[13] See Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty: Liability Arising from Environmental Emergencies, June 17, 2005, 45 I.L.M. 5 [hereinafter “Annex VI”]. Annex VI is distinct in the ATS in that it explicitly establishes a liability regime as required by Article 16 of the Antarctic Treaty. See Michael Johnson, Liability for Environmental Damage in Antarctica, 19 Geo. Int’l Envtl. L. Rev. 33 (2006).
[14] See Todd F. Chatham, Criminal Jurisdiction in Antarctica, 24 Emory Int’l L. Rev. 331, 339-42 (2010).
[15] See Paul Lincoln Stoller, Protecting the White Continent, 12 Ariz. J. Int’l & Comp. L. 335, 362-63 (1995); see, e.g., Antarctic Act 1994 (U.K.); Antarctic Conservation Act, 16 U.S.C. § 2401 et seq.
[16] See Chatham, supra note 9, at 342-43 (discussing the customary law territorial principle of international criminal jurisdiction); 18 U.S.C. §§ 1111, 1116. However, other jurisdictional theories could enable Norway to exercise jurisdiction and prosecute the Americans under Norwegian law. See Chatham, supra note 9, at 343-44; Gen. Civ. Penal Code § 233 (Nor.).
[17] See United States v. Slocum, 486 F.Supp.2d 1104, 1113 (9th Cir. 2007) (describing elements of self-defense under federal law in relation to 18 U.S.C. § 1111).
[18] See supra note 12 and source cited.
[19] Annex II, art. 4.
[20] See Annex VI, art. 2, 5, 6, 9.
[21] Id. art. 8.
[22] See Annex III, art. 2, 3.
[23] Id.
[24] Annex VI, art. 6, 12; see Stoller, supra note 15 (noting that the signatories have failed to enforce the ATS on occasion); Johnson, supra note 13, at 53-54 (noting the application and enforcement issues with Annex VI).