GANGALE: Your last message is very powerful in its perspective on the impact of European colonialism, and specifically, of British imperialism on Tonga. Sixty years before the launch of Sputnik 1 and the dawn of the space age, space was used by two novelists as a venue to reverse the perspective on colonialism, to explore what the effect of contact with a technologically superior culture from Mars would have on Earth in general and on Europeans in particular. The more famous example is H. G. Wells's "The War of the Worlds;" less well known in the English-speaking world is Kurd Lasswitz's "Of Two Planets," an abridged translation of which appeared in 1970.
Currently there is no human law regarding extraterrestrial civilizations; however, some theoretical work has been done in the field of meta-law, the basic principles that such law should embody. I have not read this literature (but I have a book on order). With this caveat, it seems to me that the first question of law is recognizing extraterrestrial biological entities as persons. Your writings serve to remind us that Europeans did not always recognize the legal personhood of "terrestrial aliens." In the play "1776," a fictional treatment of the signing of the American Declaration of Independence, Ned Rutledge, delegate from South Carolina, objects to John Adams's reference to black slaves as Americans. Adams responds, "They are people and they are here. If there is another qualification, I haven't heard of it."
"They are not people, they are property."
"No, they are people who are being treated as property!"
In the 20th century, this legal question became settled with regard to Homo sapiens, in that slavery became an international crime. But, did this settle all aspects of the question of legal personhood? What is the legal status of a Homo sapiens fetus? This question of personhood is the essential difference between "Of Two Planets" and "The War of the Worlds;" the Martians of the former work recognized Homo sapiens personhood; the Martians of the latter work did not.
Looking to the question of legal personhood for members of other species, one might posit that intelligence would be a factor, but how much intelligence is enough to qualify for personhood? Also, how intelligence is measured has always been a subject of controversy. It has been challenging to devise tests for our own species that are not culturally biased. How well would we be able to measure the intelligence of an extraterrestrial species? Scientists have gained some understanding of the intelligence of other mammalian species. Cetacean intelligence arose in the ocean, an environment very alien to us land-dwelling great apes, and their modes of cognition have been shaped by that alien environment. Yet, however intelligent they are, according to whatever measurements humans might devise, cetaceans are not legal persons. There is currently a project to gain some type of international legal personhood for the great ape species other than humans. I have read that a Canis lupus has roughly the same level of intelligence as a five-year-old Homo sapiens, yet the brutal killing of my friend and companion for his meat a couple of weeks ago is considered merely a property crime rather than a murder. What justice will Tongan law serve for Siaki Fainga'a? For that matter, given the radical differences among human cultures in their regard for terrestrial species, is it outrageous to question whether the outcome of humankind's first contact with an extraterrestrial species might depend on which culture makes that first contact, whether we might eat the aliens?
Another set of questions arises regarding extraterrestrial life that is of such a low order of complexity that there is no question of it being intelligent. What are the legal rights of Martian microbes or Europan lifeforms, if they exist? There is a body of scholarly inquiry into these questions, but there is no settled law.
Another question in international law is sovereignty. At the beginning of the Westphalian period (1648), territorial sovereignty was the central principle of international law. A state, that is to say a government of a territory, had the unquestioned right to do as it pleased within its own borders, free of interference from other states. I would be shocked if this non-interference principle were not carried over to the meta-law of intelligent species (I'll learn soon enough). Star Trek creator Gene Roddenberry has a sense of this when he invented the Prime Directive for the United Federation of Planets in 1966. But on Earth, the non-interference principle is "a custom more honored in the breach," as Hamlet quipped. The French intervention in the American Revolution on the side of the insurgents was illegal according to the international law of the time, although intervening on the side of the legitimate government, as a German prince did in renting out his army, was perfectly legal. It is my understanding that Tonga accepted "protectorate" status within the British Empire, but that it never lost its sovereignty entirely. A question in international law arises as to when Britain formally recognized Tongan sovereignty in a treaty, and whether the Tongan sovereign so recognized at the time exercised political control over a substantial portion of the territory that was recognized as being Tongan; presumably it had the capacity to enter into international agreements. (This question of international legality is of course irrespective of the misery that British intervention in Tongan affairs may have caused. Even assuming that British intentions were benevolent, the road to Hell is paved with good intentions.) In our young century, one has ones choice of death knells of the Westphalian system, from the invasion of Iraq, which did not have the sanction of the United Nations, to the intervention in Libya, which did, to the American policy of overflying sovereign territory with armed unmanned aerial vehicles. Given that the concept of territorial sovereignty is on the wane on Earth, and that it is entirely absent from present international space law, one presumes that the alternative is to vest sovereignty in natural persons and/or in future human, non-territorial states elsewhere in the Solar System. In the absence of territorial sovereignty as a countervailing norm, one wonders what restraint there will be to humanitarian intervention, and indeed, what humanitarian intervention may come to mean with respect to nonhuman sovereignties in other star systems. Some of the most compelling Star Trek episodes addressed ethical dilemmas with regard to the Prime Directive.
In conclusion, I come back to "The War of the Worlds" and "Of Two Planets." In part, Wells meant his tale as a reversal of the British role in the genocide of the Tasmanians, with the Martians visiting genocide on Britain itself. Lasswitz's story is more complex in its political themes. The Martians are humanoid and are more advanced ethically as well as technologically. Initially, they establish a research station at the north pole in order to study Earth without interfering with terrestrial civilization. Their plans begin to unravel when a balloon expedition to the north pole discovers the Martian station. The Martians then have no choice but to openly declare their presence on Earth. They establish diplomatic relations with the various terrestrial governments, and they introduce Martian technologies that cure diseases and produce food from inorganic matter (this was written by a 19th century German… better living through chemistry). Despite the Martians' altruism, Earthmen begin to resent their superiority. In particular, the British provoke a war that it quickly loses, and in response the Martians establish a "protectorate" over Earth to stabilize the political situation. The more violently Earthmen resist Martian paternalism, including engaging in terrorism, the more oppressive Martian rule becomes, despite benevolent intentions.
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