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SETI and the law: what if the search succeeds?
Space Policy 14 (1998) 75 — 77
Viewpoint
SETI and the law: what if the search succeeds? Francis Lyall Faculty of Law, University of Aberdeen, Taylor Building, Old Aberdeen AB24 3UB, UK
Abstract If the search for extra-terrestrial intelligence succeeds in detecting evidence of it, it will have immense repercussions. Two documents consider what should be done to validate and announce the evidence, and to consider a reply if the evidence is in radio form. What legal status should such materials be given? The author argues that it is not too early to consider formulating a treaty. ( 1998 Elsevier Science Ltd. All rights reserved.
1. Introduction In the eyes of many, the Search for Extra-Terrestrial Intelligence is the most outre of all space activities. One consequence has been the erratic availability of government funding for Search programmes, the most recent cancellation being that from the NASA budget in 1992. Notwithstanding, the Search proceeds through private funding and endeavour, much being done through the SETI Institute in California.1 Whatever one’s view of the enterprise, there can be no doubt that the proven detection of evidence of extraterrestrial intelligence would be of major significance. Indeed, the lesser possibility of the existence of extraterrestrial life (as opposed to intelligence) that may be indicated by what some construe as bacterial remains in the ‘Mars Meteorite’ was a major news story in 1996. The question of the probability of extra-terrestrial life is therefore itself worthy of attention. In that debate, Frank Drake’s famous formulation of the relevant factors in the ‘Drake Equation’ has been a major contribution [1]. So long as the answer is not ‘zero’, the varied results that can be obtained through the allocation of different values to the elements of the Drake Equation do not affect the potential importance of the matter. Of course, logically, and with due regard to the entertainment industries, the possibilities that extra-terrestrial intelligence is already here, or that it may arrive in physical form, cannot be wholly discounted. However, most accept that the most likely evidence of the existence
1 See www.seti-inst.edu. 0265-9646/98/$19.00 ( 1998 Elsevier Science Ltd. All rights reserved. PII: S 0 2 6 5 - 9 6 4 6 ( 9 8 ) 0 0 0 0 6 - X
of extra-terrestrial intelligence would be the detection of artificial radio signals emitted by some civilisation somewhere in the depths of space. Humanity itself has been emitting such signals since the experiments of Marconi and his predecessors. Civilisations on planets orbiting other stars may have been deliberately or accidentally giving similar proofs of their existence. That is the argument for the various ‘search’ programmes that have been listening to the stars for the last 30 years or so. Project Phoenix, the privately financed daughter of the aborted NASA project of the early 1990s, and others, continue the quest today. As I write a new link between the Arecibo and Manchester radio telescopes, was announced on 2 February 1998. The link will afford greater capacity and sensitivity than previously used systems and just may produce results. But, what if the Search succeeds? Would it not be wise formally to agree procedures in advance to cope with the eventuality of a ‘detection’, rather than try to make things up once the problem has arrived? Of recent years various bodies and individuals have considered what should be done under those circumstances. How should a suspected ‘detection’ be validated? How should a validated ‘detection’ be announced? And, perhaps more contentiously: should a ‘reply’ be made to such a signal, and if so, who should make it, and what should its terms be? Those interested in such matters, astronomers, social scientists, and even lawyers, have been debating these questions [2—4]. In particular, after due debate within the different elements of International Astronautical Federation and beyond, a Declaration has been adopted, intended to lay out guide-lines for ‘Detection’ and a similar
76
F. Lyall / Space Policy 14 (1998) 75—77
document is under consideration as to any ‘Reply’.2 It is hoped that the Principles contained in these Declarations would be subscribed to by all those engaged in SETI activities, and govern what is done thereafter.
2. Detection? The Detection Declaration outlines procedures to be followed following the plausible detection of evidence of extra-terrestrial intelligence. A consecutive set of steps is indicated. Briefly, a signal or other evidence should be verified by its detector (Pr. 1). (If that cannot be done it should be treated like any other unknown phenomenon). Other signatories to the Declaration should then be notified so that they can run their own checks. National authorities should be informed, then the rest of the scientific community, and so on (Pr. 2 and 3). Information of a confirmed detection should be disseminated promptly, openly and widely — the discoverer having the privilege of the first public announcement (Pr. 4). Data should be made available (Pr. 5). The discovery should be properly recorded and monitored (Pr. 6). Should the detection rely on electromagnetic signals, the appropriate frequencies should be protected through ITU mechanisms (Pr. 7). Importantly, no response should be made or sent until the matter has been the subject of international consultations (Pr. 8). The draft Reply-Communication Declaration expands on what this could mean.
3. Reply? There is, of course, an argument that a reply to detected evidence of Extra-terrestrial Intelligence may simply invite aliens to come and harvest a previously unknown source of protein. The point must be considered, but there are other elements that need to be thought about as well. The draft Reply-Communication Declaration concentrates on providing a framework within which the question of whether to reply, and an outline of its content can be considered. Previous discussions had ranged over questions of content as well as procedure, and the separation of these matters is to be welcomed. Now the only indication as to possible content is that it should reflect ‘a careful concern for the broad interests and well-being of Humanity’ (Pr. 6). Consultations on the question of sending communications should be begun (Pr. 1). Whether a message should 2 The two Declarations are available at the SETI Institute, 2035 Landings Drive, Mountain View, Calfornia 94043, USA, its website (www.seti-inst.edu) and are also annexed to my 1996 paper for the SETI section of the International Astronautical Federation, ‘Communications with Extra-terrestrial Intelligence: A New Dimension of Space Law’, IAA-96-9.2.04.
be sent should be discussed within the UN Committee on the Peaceful Uses of Outer Space, other governmental and non-governmental organisations and allow participation by qualified interested groups (Pr. 2). Interested States should participate and discussion end in consensus (Pr. 3). The General Assembly of the United Nations should consider deciding both whether to send a message, and its content (if any), on the basis of a recommendation from COPUOS and the other participants indicated in Pr. 2. Any message should be from Humankind, not any particular State (Pr. 5). Its content should ‘reflect concern for the broad interests and well-being of humanity, (Pr. 6). Interestingly, Pr. 6 also suggest, the content of the message should be publicised before its being sent, though it is not clear what possibility there may be for objections to be raised or amendments agreed. As any exchange of messages is likely to take years, a long-term institutional framework for conducting such an exchange should be considered (Pr. 7). Perhaps indicative that the drafters are conscious that not everyone may pay heed the Reply-Communications Declaration, Pr. 8 says that States should not send a message prior to international consultation, or cooperate with any attempts to do so. This latter phrase is weak. As part of their obligation under art. 6 of the Outer Space treaty to supervise space activities engaged in by those under its jurisdiction, a state should prevent or punish unauthorised signal to any suspected ETI. States should draw on the services of experts (Pr. 9), and if the decision is to communicate, encoding and transmitting the message should be entrusted to scientists and engineers specialising in the technologies involved (Pr. 10).
4. What legal status for the declarations? At present the Declarations contain only Principles. That is wise. Principles are often better than hard detailed rules for coping such matters. The Detection Declaration has been approved by most of the relevant international groupings, such as the Board of Trustees of the International Academy of Astronautics (IAA) and the Board of Directors of the International Institute of Space Law (IISL), by the Committee on Space Research (COSPAR), by Commission 51 of the International Astronomical Union, by Commission J of the Union Radio Scientifique Internationale, and by the International Astronautical Federation (IAF). It has also been endorsed by various individuals. It is to be hoped the ‘Reply Declaration’ will go smoothly through the same process. As drafted, however, the Declarations will not be binding in law. At most they are simply Declarations which various influential bodies and certain individuals have indicated they will abide by. But if they do not, at present there is no remedy by way of law, or any enforcement
F. Lyall / Space Policy 14 (1998) 75—77
mechanism other than the disciplinary mechanisms of scientific institutions. Should this be altered? Assuming that these documents are fully approved by those most concerned in the matter, should steps be taken to make them over into law? On one view such a step is unnecessary. The Declarations can work. But the problem of law is rarely the lawabiding. Would a proper legally binding statement help curb those who would not be inclined to comply with what amounts to a ‘gentleman’s agreement’? Pragmatically, I would say that not everyone would obey even a law, but principles expressed in a form of greater legal authority than at present might just reduce the number of the recalcitrant. The first step would be to re-work the language of the Declarations. As they stand they are not well-adapted for incorporation into any of the present mechanisms through which they might be given legal status. When that is being done it might also be advantageous to fuse the two documents, so that both ‘Detection’ and ‘Reply’ are dealt with together and have the same standing. Ideally, another entry in the catalogue of the UN Space Treaties would be best. Such a treaty should also expressly require states to make compliance with the principles of the Declarations part of their licensing and supervision of space activities within their several territories as part of their supervisory duties already existing under art. 6 of the Outer Space Treaty of 1967. Unfortunately not all states take the 1967 duty seriously, and it may help once more to underline the obligations laid on states by Space Law. If such a route were thought desirable, the place to start would be in COPUOS. The Foreign Offices and Chancelleries of the world are not likely to take the initiative of convening a conference on a SETI treaty themselves. They have other things to keep them busy. And COPUOS has a good track record. Even so, perhaps treaty status is baying for the moon, and we need to consider something short of that for the SETI Principles. In that case one can look to the useful effect that has been obtained in Space Law by the various declarations of principle which have been adopted without vote or unanimously by the General Assembly of the United Nations on the recommendation of COPUOS. But the nature of the adoption would be crucial. The Declaration on principles regarding direct satellite broadcasting of
77
1982 (GA Res. 27/92) shows starkly that the effect of non-unanimous declarations is much impaired, not to say destroyed. There is argument as to the legal status of unanimous UN declarations. While they are not treaties, they are more than good intentions. They are an affirmation by states—an affirmation made by their consent to their adoption by the General Assembly—that they do contain principles which each assenting state will seek to observe. Recently, the term ‘soft law’ has been used to denote this class of international ‘agreement’. The term distinguishes such from ‘hard law’, and may contain, and in the mind of some, a hope that what is stated as ‘principle’ will eventually become ‘hard law’. Certainly, if state practice follows such principle, and the generality of states come to believe that they act in accordance with that principle because they are bound to do so, the principle will have become customary international law. And, short of such, those involved in SETI might well feel ‘obliged’ before their rulers do if the principles are set out in a Resolution of the General Assembly of the United Nations. While the Committee on the Peaceful Uses of Outer Space has many things pressing for addition to its agenda, it is time, as Professor Kopal suggested some time ago [5], for those informed on such matters to consolidate the two declarations, and seek to have the matter considered by COPUOS. (Australia has indicated interest). Thereafter the UN General Assembly, which has debated stranger things in the past, might be disposed to take a view. I might hope for a treaty, but would settle for a Resolution adopted without vote. References [1] Drake F, Sobel D. Is anyone out there? Delcorte Press, New York: 1992. [2] See, for example, Special SETI Issues (1990) 21 Acta Astronautica (1992); 26 Acta Astronautica (A third Special Issue is in preparation). [3] Lemarchand GA, Tarter DE. Active search strategies and the SETI protocols: is there a conflict. Space Policy, 1994; 10:134. [4] Tarter DE. Interpreting and reporting on a SETI discovery. Space Policy, 1992; 8:137. [5] Kopal V. International law implications of the detection of extraterrestrial intelligent signals. 21 Acta Astronautica 123-6 at 124-5, 1990.
Viewpoint
SETI and the law: what if the search succeeds? Francis Lyall Faculty of Law, University of Aberdeen, Taylor Building, Old Aberdeen AB24 3UB, UK
Abstract If the search for extra-terrestrial intelligence succeeds in detecting evidence of it, it will have immense repercussions. Two documents consider what should be done to validate and announce the evidence, and to consider a reply if the evidence is in radio form. What legal status should such materials be given? The author argues that it is not too early to consider formulating a treaty. ( 1998 Elsevier Science Ltd. All rights reserved.
1. Introduction In the eyes of many, the Search for Extra-Terrestrial Intelligence is the most outre of all space activities. One consequence has been the erratic availability of government funding for Search programmes, the most recent cancellation being that from the NASA budget in 1992. Notwithstanding, the Search proceeds through private funding and endeavour, much being done through the SETI Institute in California.1 Whatever one’s view of the enterprise, there can be no doubt that the proven detection of evidence of extraterrestrial intelligence would be of major significance. Indeed, the lesser possibility of the existence of extraterrestrial life (as opposed to intelligence) that may be indicated by what some construe as bacterial remains in the ‘Mars Meteorite’ was a major news story in 1996. The question of the probability of extra-terrestrial life is therefore itself worthy of attention. In that debate, Frank Drake’s famous formulation of the relevant factors in the ‘Drake Equation’ has been a major contribution [1]. So long as the answer is not ‘zero’, the varied results that can be obtained through the allocation of different values to the elements of the Drake Equation do not affect the potential importance of the matter. Of course, logically, and with due regard to the entertainment industries, the possibilities that extra-terrestrial intelligence is already here, or that it may arrive in physical form, cannot be wholly discounted. However, most accept that the most likely evidence of the existence
1 See www.seti-inst.edu. 0265-9646/98/$19.00 ( 1998 Elsevier Science Ltd. All rights reserved. PII: S 0 2 6 5 - 9 6 4 6 ( 9 8 ) 0 0 0 0 6 - X
of extra-terrestrial intelligence would be the detection of artificial radio signals emitted by some civilisation somewhere in the depths of space. Humanity itself has been emitting such signals since the experiments of Marconi and his predecessors. Civilisations on planets orbiting other stars may have been deliberately or accidentally giving similar proofs of their existence. That is the argument for the various ‘search’ programmes that have been listening to the stars for the last 30 years or so. Project Phoenix, the privately financed daughter of the aborted NASA project of the early 1990s, and others, continue the quest today. As I write a new link between the Arecibo and Manchester radio telescopes, was announced on 2 February 1998. The link will afford greater capacity and sensitivity than previously used systems and just may produce results. But, what if the Search succeeds? Would it not be wise formally to agree procedures in advance to cope with the eventuality of a ‘detection’, rather than try to make things up once the problem has arrived? Of recent years various bodies and individuals have considered what should be done under those circumstances. How should a suspected ‘detection’ be validated? How should a validated ‘detection’ be announced? And, perhaps more contentiously: should a ‘reply’ be made to such a signal, and if so, who should make it, and what should its terms be? Those interested in such matters, astronomers, social scientists, and even lawyers, have been debating these questions [2—4]. In particular, after due debate within the different elements of International Astronautical Federation and beyond, a Declaration has been adopted, intended to lay out guide-lines for ‘Detection’ and a similar
76
F. Lyall / Space Policy 14 (1998) 75—77
document is under consideration as to any ‘Reply’.2 It is hoped that the Principles contained in these Declarations would be subscribed to by all those engaged in SETI activities, and govern what is done thereafter.
2. Detection? The Detection Declaration outlines procedures to be followed following the plausible detection of evidence of extra-terrestrial intelligence. A consecutive set of steps is indicated. Briefly, a signal or other evidence should be verified by its detector (Pr. 1). (If that cannot be done it should be treated like any other unknown phenomenon). Other signatories to the Declaration should then be notified so that they can run their own checks. National authorities should be informed, then the rest of the scientific community, and so on (Pr. 2 and 3). Information of a confirmed detection should be disseminated promptly, openly and widely — the discoverer having the privilege of the first public announcement (Pr. 4). Data should be made available (Pr. 5). The discovery should be properly recorded and monitored (Pr. 6). Should the detection rely on electromagnetic signals, the appropriate frequencies should be protected through ITU mechanisms (Pr. 7). Importantly, no response should be made or sent until the matter has been the subject of international consultations (Pr. 8). The draft Reply-Communication Declaration expands on what this could mean.
3. Reply? There is, of course, an argument that a reply to detected evidence of Extra-terrestrial Intelligence may simply invite aliens to come and harvest a previously unknown source of protein. The point must be considered, but there are other elements that need to be thought about as well. The draft Reply-Communication Declaration concentrates on providing a framework within which the question of whether to reply, and an outline of its content can be considered. Previous discussions had ranged over questions of content as well as procedure, and the separation of these matters is to be welcomed. Now the only indication as to possible content is that it should reflect ‘a careful concern for the broad interests and well-being of Humanity’ (Pr. 6). Consultations on the question of sending communications should be begun (Pr. 1). Whether a message should 2 The two Declarations are available at the SETI Institute, 2035 Landings Drive, Mountain View, Calfornia 94043, USA, its website (www.seti-inst.edu) and are also annexed to my 1996 paper for the SETI section of the International Astronautical Federation, ‘Communications with Extra-terrestrial Intelligence: A New Dimension of Space Law’, IAA-96-9.2.04.
be sent should be discussed within the UN Committee on the Peaceful Uses of Outer Space, other governmental and non-governmental organisations and allow participation by qualified interested groups (Pr. 2). Interested States should participate and discussion end in consensus (Pr. 3). The General Assembly of the United Nations should consider deciding both whether to send a message, and its content (if any), on the basis of a recommendation from COPUOS and the other participants indicated in Pr. 2. Any message should be from Humankind, not any particular State (Pr. 5). Its content should ‘reflect concern for the broad interests and well-being of humanity, (Pr. 6). Interestingly, Pr. 6 also suggest, the content of the message should be publicised before its being sent, though it is not clear what possibility there may be for objections to be raised or amendments agreed. As any exchange of messages is likely to take years, a long-term institutional framework for conducting such an exchange should be considered (Pr. 7). Perhaps indicative that the drafters are conscious that not everyone may pay heed the Reply-Communications Declaration, Pr. 8 says that States should not send a message prior to international consultation, or cooperate with any attempts to do so. This latter phrase is weak. As part of their obligation under art. 6 of the Outer Space treaty to supervise space activities engaged in by those under its jurisdiction, a state should prevent or punish unauthorised signal to any suspected ETI. States should draw on the services of experts (Pr. 9), and if the decision is to communicate, encoding and transmitting the message should be entrusted to scientists and engineers specialising in the technologies involved (Pr. 10).
4. What legal status for the declarations? At present the Declarations contain only Principles. That is wise. Principles are often better than hard detailed rules for coping such matters. The Detection Declaration has been approved by most of the relevant international groupings, such as the Board of Trustees of the International Academy of Astronautics (IAA) and the Board of Directors of the International Institute of Space Law (IISL), by the Committee on Space Research (COSPAR), by Commission 51 of the International Astronomical Union, by Commission J of the Union Radio Scientifique Internationale, and by the International Astronautical Federation (IAF). It has also been endorsed by various individuals. It is to be hoped the ‘Reply Declaration’ will go smoothly through the same process. As drafted, however, the Declarations will not be binding in law. At most they are simply Declarations which various influential bodies and certain individuals have indicated they will abide by. But if they do not, at present there is no remedy by way of law, or any enforcement
F. Lyall / Space Policy 14 (1998) 75—77
mechanism other than the disciplinary mechanisms of scientific institutions. Should this be altered? Assuming that these documents are fully approved by those most concerned in the matter, should steps be taken to make them over into law? On one view such a step is unnecessary. The Declarations can work. But the problem of law is rarely the lawabiding. Would a proper legally binding statement help curb those who would not be inclined to comply with what amounts to a ‘gentleman’s agreement’? Pragmatically, I would say that not everyone would obey even a law, but principles expressed in a form of greater legal authority than at present might just reduce the number of the recalcitrant. The first step would be to re-work the language of the Declarations. As they stand they are not well-adapted for incorporation into any of the present mechanisms through which they might be given legal status. When that is being done it might also be advantageous to fuse the two documents, so that both ‘Detection’ and ‘Reply’ are dealt with together and have the same standing. Ideally, another entry in the catalogue of the UN Space Treaties would be best. Such a treaty should also expressly require states to make compliance with the principles of the Declarations part of their licensing and supervision of space activities within their several territories as part of their supervisory duties already existing under art. 6 of the Outer Space Treaty of 1967. Unfortunately not all states take the 1967 duty seriously, and it may help once more to underline the obligations laid on states by Space Law. If such a route were thought desirable, the place to start would be in COPUOS. The Foreign Offices and Chancelleries of the world are not likely to take the initiative of convening a conference on a SETI treaty themselves. They have other things to keep them busy. And COPUOS has a good track record. Even so, perhaps treaty status is baying for the moon, and we need to consider something short of that for the SETI Principles. In that case one can look to the useful effect that has been obtained in Space Law by the various declarations of principle which have been adopted without vote or unanimously by the General Assembly of the United Nations on the recommendation of COPUOS. But the nature of the adoption would be crucial. The Declaration on principles regarding direct satellite broadcasting of
77
1982 (GA Res. 27/92) shows starkly that the effect of non-unanimous declarations is much impaired, not to say destroyed. There is argument as to the legal status of unanimous UN declarations. While they are not treaties, they are more than good intentions. They are an affirmation by states—an affirmation made by their consent to their adoption by the General Assembly—that they do contain principles which each assenting state will seek to observe. Recently, the term ‘soft law’ has been used to denote this class of international ‘agreement’. The term distinguishes such from ‘hard law’, and may contain, and in the mind of some, a hope that what is stated as ‘principle’ will eventually become ‘hard law’. Certainly, if state practice follows such principle, and the generality of states come to believe that they act in accordance with that principle because they are bound to do so, the principle will have become customary international law. And, short of such, those involved in SETI might well feel ‘obliged’ before their rulers do if the principles are set out in a Resolution of the General Assembly of the United Nations. While the Committee on the Peaceful Uses of Outer Space has many things pressing for addition to its agenda, it is time, as Professor Kopal suggested some time ago [5], for those informed on such matters to consolidate the two declarations, and seek to have the matter considered by COPUOS. (Australia has indicated interest). Thereafter the UN General Assembly, which has debated stranger things in the past, might be disposed to take a view. I might hope for a treaty, but would settle for a Resolution adopted without vote. References [1] Drake F, Sobel D. Is anyone out there? Delcorte Press, New York: 1992. [2] See, for example, Special SETI Issues (1990) 21 Acta Astronautica (1992); 26 Acta Astronautica (A third Special Issue is in preparation). [3] Lemarchand GA, Tarter DE. Active search strategies and the SETI protocols: is there a conflict. Space Policy, 1994; 10:134. [4] Tarter DE. Interpreting and reporting on a SETI discovery. Space Policy, 1992; 8:137. [5] Kopal V. International law implications of the detection of extraterrestrial intelligent signals. 21 Acta Astronautica 123-6 at 124-5, 1990.