For the print version visit the Warwick Law Society here.
“I think what we feared were the possibilities, the truth we both know” (Fox Mulder, X-Files)
Extraterrestrial intelligence has fascinated human populations from ancient Greece to modern times. Beginning with Democritus and later supported by Copernican ideology, the concept of potential contact with alien life is certainly not a novel idea. Historical interest has manifested itself through modern mediums such as conspiracy propaganda, science fiction literature, television programming, and Hollywood movies. From Star Wars to my personal favourite the X-Files (my co-author is shockingly a Star Trek enthusiast), there is no escaping the reality that the possibility of extraterrestrial contact has shaped our modern psyche. The truth is certainly out there, and until discovered, precautionary principles dictate that the best way forward is to presume in the interim that alien life does exist and that contact will eventually be made. This article proceeds on the basis that extraterrestrial contact will be made, and that alien life will be accommodating to co-existence with human life. Simply put, we will be dealing here with the friendly green aliens, not the mean ones associated with such films like Predator and War of the Worlds. If harmonious co-existence is to ever be achieved, surely legal instruments will have to be used to regulate extraterrestrial affairs. Can existing legal principles be modified to meet the needs of extraterrestrial law?
Property Law and Aliens – Space Easements, Universal Adverse Possession, and Intergalactic Nuisance:
The easement holds great promise as a legal tool to regulate rights of way in space. Convenient transportation routes take on a new meaning in space, where detours may take on a light years dimension. Black holes would no doubt represent a formidable transportation advantage to those who controlled them, allowing space ships to move quickly to distant galaxies. Assuming that express easements or easements of necessity will not be common because of obvious language differences and the vastness of space, and that the requirements of Re Ellenborough Park  would remain applicable, what form would easements arising by prescription take on? What will constitute long use and acquiescence in space? Perhaps our earthly notion of years will have to be magnified to take into account the time delay in space travel. For example, instead of 12 years of continuous use being sufficient to satisfy a prescriptive easement, easements regulating humans and aliens will require the introduction of a new quantum of light years. Acquiescence requirements will also have to be modified. Space ships and planetary radar technology will surely be able to detect users across wide distances. It may be that acquiescence will be presumed on the basis that the user was not destroyed in space by the ballistic capabilities of the servient owner.
Adverse possession will certainly take on a new dimension in space. Since space represents such a vast area, there will be a strong utilitarian policy impetus to allow for legal regulation that seeks to maximise the use of property in space. If the principles of adverse possession will ever have a legal role to play in regulating alien and human behaviour in space, then the limitation period will have to be adjusted to reflect any necessary temporal enlargement. 12 years will certainly not be enough time to allow for space travel. The implications of the Land Registration Act 2002 will also have to be considered. Although at this time unclear, different languages surely must exist among alien populations, and the Register will have to be multi-lingual in order to accommodate the affected parties. With this said, if alien populations are as advanced as I personally know them to be, then they will presumably be able to speak many languages, including earthly ones. However, us primitive humans will find great difficulty in understanding alien dialect, and translations will have to be provided so that we can effectively assess our positions. A wider consideration is the potential scope of adverse possession. Can aliens and humans gain legal interests in planets or only parts of planets? This may not be very important if there is a proprietary dispute over useless Pluto, but may take on greater significance in more exciting planets, especially if they prove to be resource-rich.
The law of nuisance will probably take on a most exciting role in extraterrestrial law. Will the paradigmatic authority of Bernstein v Skyviews (1978) any longer hold any weight, or will we have to revert back to a strict interpretation of the cuius est solum maxim which holds that he who owns land owns everything reaching up to the very heavens and down to the depths of the Earth. Alien surveillance technology will no doubt be much more invasive, and there are legitimate concerns that surveillance from even long distances may infringe an owner’s right to private and home life. Extraterrestrial law may have to extend existing protections in the light of alien technology. Of perhaps greater significance will be whether the law of nuisance will be able to accommodate situations where aliens and humans live together as neighbours. The encroachment of alien life will likely bring new nuisances such as ‘green slime’ residue, foul smells, and unimaginable noise disturbances. Further, what we may describe as typical will have to be adjusted in the light of complaints brought by alien populations.
From International Law to Intergalactic Legal Principles:
We are limited, not by our abilities, but by our vision. Vision is, indeed, the art of seeing what is invisible to others. Our legal system tends to provide specific and limited responses to particular problems. Moreover, the law tends to be excessively anthropocentric. The product of these inevitabilities is two-fold. First, our legal vision is limited by our human experiences on earth. Second, and despite what natural lawyers may contend, the law is a creation of the human imagination, and is therefore utilised to govern the machinery our very own civilization.
This article invites the reader to contemplate beyond our foundations on Earth. Ask yourself this: what would happen if a human came into personal contact with an extraterrestrial being? One can only speculate the various answers to this question. However, in the US, The Extraterrestrial Expose Law 1969 makes it illegal for somebody to have contact with an extraterrestrial being. The Federal Statute states that “anyone guilty of such a contact automatically becomes a wanted criminal to be jailed for one year and fined $5,000. The N.A.S.A administrator is empowered to determine with or without a hearing that a person or object has been extraterrestrially exposed, and impose an indeterminate quarantine under armed guard, which could not be broken even by a court order”. Surely, this sounds odd. Is it in the best interest of humanity to confirm, or disconfirm, the existence of extraterrestrial life? Perhaps for the US, aliens will be the next personification of terrorism. However, remember that this article deals with friendly aliens. What will their rights be? Will we owe duties to them? How will contact with extraterrestrial life affect international/universal law?
The Universal Declaration of Human Rights (UDHR) emphasises that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace of the world.” By undertaking a rather straightforward literal construction, it is clear that aliens are left out of the human rights equation. Will we detain them and conduct cruel experiments on their frail little green bodies? Surely Article V, which prohibits torture, cruel, inhuman or degrading treatment, will not be of any use to the little green creature. Article IV of the UDHR provides that ‘no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ Extraterrestrial beings, however, are not privileged enough to benefit from this provision: under international law, it is arguable that an alien would be considered ‘less than human.’ We all know that this form of overt discrimination, or even hierarchical categorisation, has been the cause of many catastrophes in the past. Just think about the potential for future conflict that such treatment may cause. We abuse their innocence and generosity, benefit from scientific experiments, dishonestly appropriate their futuristic space ships (would that count as theft?), only to later find out that those species are part of a wider civilization which has the ability to destroy planets and even galaxies. Thus, we ought to grant them rights – Alien Rights – so that human beings and aliens can co-exist peacefully. This may, however, cause juridical difficulties. If an alien decides to bring an ‘Alien Rights’ claim before a human court, we ought to have a judicial bench composed of a mixed panel: human and alien judges sitting alongside each other.
Once extraterrestrial contact becomes frequent, the creation of an ‘Intergalactic Court’ may prove to be the only judicial mechanism to govern disputes between civilizations in different galaxies. The court will be empowered to interpret future sources of law such as the Prevention on Inter-Galactic Genocide, The Treaty on the Protection of Space Minorities, and the Universal Intellectual Property Treaty. The formulation of such intergalactic laws will certainly pose drafting difficulties. Aliens may have a different interpretation of justice, or perhaps they don’t even strive for such a concept. An ultramodern legal profession could emerge, with intergalactic lawyers holding LL.BTs (Legum Baccalaureus Terra). Legal education will be transformed. Warwick may even have a campus on Mars.
The use of force provisions in Art 2 (4) of the UN Charter may have to be extended and modified to encompass the ‘territorial integrity or political independence of any Space State.’ Jus Cogens principles will have to adapt to the universal values of the day. Our understanding of self-defence in international law, and particularly the concept of pre-emptive strike, will have to reflect the respective technologies of the time.
How could trusts law become relevant in our relationships with aliens? Hopefully, the basic tenets of trusts law will change so that human beings will be able to hold planets on trust for the benefit of aliens, and vice versa. Furthermore, the inhabitants of a planet will be able to hold the planet on trust for the benefit of future generations. Most of the tidal effects seen on the Earth are caused by the Moon’s gravitational pull. Before somebody sells the Moon to an evil alien who plans to deprive us from our lunar benefits, there should be a general principle of international trusts law providing that our generation ought to hold the Moon on trust for the benefit of future generations.
Blaise Pascal once wrote “through space the universe encompasses and swallows me up like an atom; through thought I comprehend the world”. Although this article may seem, and quite rightly, a work of fiction, it nonetheless challenges our limited, anthropocentric vision of law. We ought to initiate a journey, beyond our planetary frontiers, to consider the extraterrestrial application and justiciability of our laws before it becomes too late.
The inspiration for this article came from a paper published by our own Gary Watt entitled “The Soul of Legal Education”, which called for greater imagination within the fabric of legal matriculation. From the student perspective, imagination can provide not only a useful tool to complement our legal studies but can also serve to breed some much needed life into law, which may help us to overcome the banality of revising legislation and memorising key decisions. In this sense, the article is intended to attempt to move in the direction intimated by Gary Watt, and to demonstrate that the scope for imagination in law, although latent, can be potentially wide reaching. Although our ideas were meant to be lightly received, there are some important material considerations resulting from our fictional analysis. It is clear that it will be extremely difficult to import existing legal principles to govern relationships in new jurisdictions between parties who share little in common. The better way forward may focus instead on Rawlsian first principles and mutual negotiation from an original position. In this way, prejudice can be removed from legal principle, and affected parties can instead work from a clean slate, so that everyone can leave the party with an equal slice of cake. Although this may always remain a pipe dream at the global level, the future prospects within Europe may be more promising. With enlargement into new areas with vastly different cultures and legal traditions, perhaps lessons can be learned from a fictional exercise which seeks to simulate the inherent difficulties of legal harmonisation across cultures, States and even space.
- The authors would like to acknowledge Jabba the Hutt, Dana Scully and Spock for their helpful comments on earlier drafts. Any omissions or mistakes are of course our own.