For decades, scientists and filmmakers alike have dedicated tremendous efforts to speculate about two main issues concerning ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligent life forms. One, do they exist? Two, what would happen if they come to visit us on Earth?This article scrutinizes the legal issues that may arise after a close contact of human civilization with intelligent ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s. This includes both legal principles upon which humans can trade and conclude contracts and treaties with friendly ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s, and also more sophisticated issues such as business and law of war with hostile ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ invaders have been put on the legal perspective.
Are intelligent ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s equal to humans in legal rights?
For centuries, humankind has considered itself as the superior form of life, and all other animals and plants as inferior ones subjected to serve their human masters. However, this black-and-white view over the supremacy of humans is changing even before any contact with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳, technologically advanced, life forms.Advances in social psychology and behaviorology studies of a wide range of animals have convinced many scientists that features once thought to be unique to human beings are common among other mammals, birds, and even social insects as well.Tool-making, logical problem solving, empathy toward others, sense of time and planning, and even sophisticated structured audio communication (language) are recognized by biologists in the behavior of apes, dolphins, elephants, crows, and ants. The legal community has responded to these new scientific understandings proportionally.In a world first, a court in Argentina issued a historic and unprecedented ruling that favors the rights of an orangutan held in captivity. Sandra the orangutan was granted legal action so she may be transferred to a habitat in keeping with her development.
Argentina’s Association of Professional Lawyers for Animal Rights filed a writ of habeas corpus, a resource to avoid arbitrary arrests, on Sandra’s behalf.In a similar occasion, the legal rights of elephants as sentient animals are being recognized by the entertainment industry. Ringling Brothers and Barnum Bailey Circus recently announced that it plan to stop using the animals by 2018. Growing public concern about how the animals are treated led to the decision. The company’s 43 elephants will live at an animal conservation center in Florida.These developments with regard to assigning human-like rights for terrestrial nonhuman animals leaves no doubt for inferring that ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligent life forms, at least in terrestrial legal systems’ point of view, will enjoy rights equal to their human counterparts.It might be possible that ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s’ point of view towards us—humans—is very much like that of us concerning “inferior” creatures that either have no rights or, at best, a very slim spectrum of basic rights. However, for the sake of our legal discussion, it is better to limit speculation about a̳l̳i̳e̳n̳s’ ideology before actually meeting them.
Friend or foe?
For the moment, let’s disregard the Fermi Paradox and assume that, one way or another, ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligent life forms are able to to visit us here on Earth and, among other disciplines of human knowledge and civilization, the legal community has been assigned the task of concluding any kind of treaty or agreement with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s.That said, the very first question of law would be to assess whether a̳l̳i̳e̳n̳s are friendly or hostile toward human civilization and earthly life form.Are they here to help us or ask for our help? Worse, are they here to conquer our planet and annex it to their intergalactic empire whose existence we were previously completely unaware?For each of these questions, human legal systems in general— not just space law—have distinct answers and implications.
Which legal system to apply?
For selecting the most convenient legal system to deal with the a̳l̳i̳e̳n̳s on Earth, a distinction should be made concerning the choice of law. Are humans randomly encountering ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s, or we are dealing with accredited political representatives of an a̳l̳i̳e̳n̳ civilization?Although it seems very unlikely that technologically advanced a̳l̳i̳e̳n̳s would recognize the political boundaries of our nation-states, if a spacecraft with a̳l̳i̳e̳n̳s onboard landed anywhere on Earth, and they do not carry any political mission to make contact with humans, legally speaking they would be subject to the territorial jurisdiction in which they have entered unless otherwise collectively agreed upon by the international legal community.For example, if an ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ spacecraft enters the territory of the Republic of Ireland, the a̳l̳i̳e̳n̳s on board shall be treated with the applicable laws of Ireland, including with regard to safeguarding the asylum rights that Irish law has granted for human beings from other nations.By the same analogy, if a̳l̳i̳e̳n̳s land in Russia, the laws of the Russian Federation during their stay within the territory of that country in subject matters such as seeking asylum, making contracts, or any other societal or personal legal issue will be applicable.The best approach would be to assign the a̳l̳i̳e̳n̳s the same legal rights that foreign diplomats enjoy while they are on mission in foreign countries.
That is, if ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s come to Earth in small or large numbers and reside temporarily or permanently, their laws and traditions among themselves should remain out of human legal intervention and judgment.An exception would exclude exercise of certain conducts or behavior that is deemed acceptable among a̳l̳i̳e̳n̳s but is gravely unacceptable, harmful, or in contradiction with principle of peaceful coexistence with humans.In order to avoid any cultural misconception among a̳l̳i̳e̳n̳ newcomers and human host societies, awareness about the concerns and likes of both communities ought to be actively pursued. It might be very fruitful that all legal measures are communicated in advance to avoid misunderstandings that would lead to disastrous outcomes on both sides.
On the other hand, if a̳l̳i̳e̳n̳s travel to Earth to conclude any kind of pact, treaty, or agreement on behalf of their civilization with human civilization in general or—very unlikely but not impossible—with single nation-states on Earth, then existing international law shall prevail.In other words, the provisions of Vienna Convention about the law of treaties along with the principles of the charter of United Nations ought to be observed by human signatories of such interplanetary legal document. Here again, the diplomatic rights of the a̳l̳i̳e̳n̳ negotiating team should be upheld by their human political counterparts.
Who on Earth signs interplanetary pact with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s?
The issue of identifying the authority who can represent the human civilization as a whole in running the would-be bilateral negotiations and finalizing a binding legal document on behalf of our civilization with a̳l̳i̳e̳n̳s is unclear as of yet, and nothing in international law or space law directly addresses it.Among nongovernmental institutions, the SETI Institute has carried out a number of activities regarding the search for intelligent ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ life and, along with their search activities, they have prepared “Protocols for an ETI Signal Detection” concerning activities following the detection of ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligence.
Although this protocol is not binding for governments, it urges them to join and adopt its provisions. Meanwhile, this protocol contains very insightful clues on how to react to ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligent life forms, either when we discover unmistakable evidence of their existence through radio signals or if they visit us on Earth.As with the probable duties of the governments or private entities after detection of ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligent life forms, paragraph 3 of the protocol reads:After concluding that the discovery appears to be credible evidence of ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligence, and after informing other parties to this declaration, the discoverer should inform observers throughout the world through the Central Bureau for Astronomical Telegrams of the International Astronomical Union, and should inform the S̳e̳c̳r̳e̳t̳ary General of the United Nations in accordance with Article XI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Bodies.Because of their demonstrated interest in and expertise concerning the question of the existence of ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligence, the discoverer should simultaneously inform the following international institutions of the discovery and should provide them with all pertinent data and recorded information concerning the evidence: the International Telecommunication Union, the Committee on Space Research, of the International Council of Scientific Unions, the International Astronautical Federation, the International Academy of Astronautics, the International Institute of Space Law, Commission 51 of the International Astronomical Union and Commission J of the International Radio Science Union.Referring to the role of S̳e̳c̳r̳e̳t̳ary General of the United Nations in accordance with Article XI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Bodies (better known as the Outer Space Treaty of 1967) is of immense importance for two reasons.First, the United Nations is the sole international organization that virtually all countries are members of and expressly have recognized its central role in global governance through adopting the principles enshrined in the UN charter and additional legal documents.For example, in its resolution 65/94 on “The United Nations in global governance,” the General Assembly recognized the need for inclusive, transparent, and effective multilateral systems to better address the urgent global challenges of today and reaffirmed the central role of the United Nations in ongoing efforts to find common solutions to such challenges.To be certain, any negotiation with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligent life forms will be the most urgent global challenge of human history and no institution other than the United Nations (including its specialized organs) is more legitimate and accepted by consensus to take the lead in representing the human civilization.In any would-be interplanetary legal or political negotiations, involvement of the UN as the leader on humanity’s side may entail the least opposition from member states, although the possibility of opposition cannot be completely ruled out based on the history of the UN in tackling global issues and crises.Second, the Outer Space Treaty, which is regarded as the backbone of the space law, implicitly recognizes the role of the UN S̳e̳c̳r̳e̳t̳ary General as the representative of human civilization in running the talks or concluding legal documents with a̳l̳i̳e̳n̳s.
Article XI of the Outer Space Treaty reads:In order to promote international co-operation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the Moon and other celestial bodies, agree to inform the S̳e̳c̳r̳e̳t̳ary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the S̳e̳c̳r̳e̳t̳ary-General of the United Nations should be prepared to disseminate it immediately and effectively.If we consider contact with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s as an activity committed by nations who are signatories to the Outer Space Treaty, then the obligation of informing the UN S̳e̳c̳r̳e̳t̳ary General for disseminating the data and adopting immediate and effective measures becomes obvious.SETI’s post-detection protocol does contain an additional noteworthy provision that sheds more light on how a collective legal action should be taken as to contact (or deal) with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s. Paragraph 8 of the said protocol states:No response to a signal or other evidence of ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligence should be sent until appropriate international consultations have taken place. The procedures for such consultations will be the subject of a separate agreement, declaration or arrangement.This provision expressly prohibits countries from contacting a̳l̳i̳e̳n̳s unilaterally or secretly without international consultations, which is an implicit reaffirmation of the leading role of United Nations in general and the secretary general in particular in handling the contacts.
Of these, we can conclude that from the point of view of international law that the UN S̳e̳c̳r̳e̳t̳ary General is the best candidate to sit at the negotiation table with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligent life forms if we meet them here on our planet. However, along with legal issues, there might be a tremendous amount of scientific and technical issues that require the assistance of either UN specialized organs like Committee on the Peaceful Uses of Outer Space (COPUOS) or non-UN institutions such as the SETI Institute or universities. In either case, outsourcing any part of the negotiation will be within the discretion of the secretary general of the United Nations.
Law of war with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s
In the event that technologically advanced a̳l̳i̳e̳n̳s are hostile and come to Earth as invaders, the incurred devastation and causalities in clash of the c̳i̳v̳i̳l̳i̳z̳a̳t̳i̳o̳n̳s̳ would be unimaginable.During any armed conflict with a̳l̳i̳e̳n̳s, there is no ethical justification on humanity’s part to disregard the rights of vulnerable a̳l̳i̳e̳n̳s, including prisoners of war, wounded fighters, or civilians. That is to say, the principles of the Geneva Convention and its additional protocols on the treatment of civilians, prisoners of war, and soldiers who are otherwise rendered hors de combat, or incapable of fighting, should apply for a̳l̳i̳e̳n̳s equally and without discrimination as well.What is more, conducting life threatening or physically disabling experiments to examine the biology of ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ captives ought to be banned via consecutive legislation soon after a̳l̳i̳e̳n̳ invasion is launched. Such attitudes discussed here conform to Kantian ethics, which argues that for an action to be permissible, it must be possible to apply it to all people without a contradiction occurring.The reason for observing moral law amidst the war with superior a̳l̳i̳e̳n̳ invaders could be to persuade them to act similarly with human prisoners and civilians based on the reciprocity of social behavior.
The advancement of technology is the result of societal exchanges for overcoming problems and satisfying needs. Hence the notion of exchange of commodities won’t be unfamiliar for a̳l̳i̳e̳n̳s who are so ahead of humans in technology that that they may have traveled faster the speed of light to visit us.In concluding business contracts with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳s, the scope of good faith in making a binding and enforceable promise to commit or omit any action, or provide any commodity or raw material in exchange of mutually accepted consideration, is the most important legal issue.As discussed above, reaching some kind of mutual agreement between us and carbon-based ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligent life forms shouldn’t be a hurdle. However, finding a common legal and comprehendible, and at the same time feasible, conceptual ground with silicon- or ammonia-based a̳l̳i̳e̳n̳ life forms would be a harder task to tackle.What may be vital for us is lethal to them and vice versa. Perhaps it become clear that what is non-hazardous for both sides is of no commercial value for either party, and doing business will thus have to become more sophisticated.Therefore, finding a common commercial base for doing business with intelligent a̳l̳i̳e̳n̳s seems to be more important than insisting on simple and possibly primitive legal doctrines and concepts of our civilization, all of which might be replaced by better and more practical a̳l̳i̳e̳n̳ legal doctrines once we hear about them.In any case, doing business and making commercial partnerships with ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ lifeforms is the best way to avoid animosity and its unwanted consequences, and this crucial task would be on insightful legal scholars first and foremost to fulfill.
The function of laws is defined to be the means by which proper function of social order within the course of time for any give nation or society is ensured and preserved.
In the history of humankind, whenever laws became irrelevant or impractical, a wide range of changes occurred that dramatically altered the social structure of the related societies, either for sake of good or evil. Revolutions, riots, downfall of empires and civil wars all in all are direct outcomes of situations in which laws cease to be relevant to the actual lives of the citizens.
Any encounter with an ex̳t̳r̳a̳t̳e̳r̳r̳e̳s̳t̳r̳i̳a̳l̳ intelligence certainly will be a turning point for human civilization. No matter what the results of such encounter would be, the legal community, as well as scientists of various disciplines, may have a lot to learn from our cosmic neighbors for the betterment of our lives here on Earth.
Learning from a̳l̳i̳e̳n̳s regarding how to form a more integrated and fair society, or to avoid their destructive mistakes or misconducts, would be the most precious takeaway that legal scholars could use to tune human laws accordingly in the future.
By Babak Shakouri Hassanabadi, seti.org