How do lawyers search for life in outer space, by Mihai-Claudiu Dragomirescu

Are we alone in the Universe ? This question has been obsessively asked since the dawn of modern astronomy. One might venture to say that the issue transcends science, and has in fact preoccupied the minds of philosophers and religious thinkers of ancient and medieval times [1].

Nowadays, efforts are made by space agencies, scientific organizations and private ventures, to pierce through the veil of unknown and discover extraterrestrial life.

This discovery would forever change our perspective of mankind and its place in the Universe. A tremendous, awe inspiring event. If at least one tiny microbe would be discovered laying upon the red Martian soil, or on Europa’s inner ocean, or on the melting ice of a comet, or even on a distant exoplanet, this piece of news would change humanity as we know it. We can’t even fathom what consequences would the discovery of intelligent life bring.

As such, humanity must be very careful in its search for life beyond Earth’s blue skies. Recent research has shown that Earth hosts organisms capable of surviving in the most adverse conditions, under the Earth’s crust [2], in hydrothermal vent environments [3], and even on the bottom of the Mariana’s trench [4]. In a cave in Romania there are organisms that survive without any sunlight and with little oxygen [5]. A certain being has become famous nowadays for its resistance to extreme temperatures, lack of nutrients and radiation – the tiny water bear [6]. Certain lichens can survive up to two weeks in space [7]. These organisms are called extremophiles, and if they show us that life can conquer such unfavorable conditions, and could be capable of colonizing extraterrestrial realms, they also present themselves as agents of contamination.


If a wandering rover, equipped with instruments necessary for the detection of life, would discover on a celestial object a bacterium, or another form of life, the first question that would be asked would be: has the rover been sterilized? Indeed, without perfect sterilization, one couldn’t figure if the organism is indeed alien, or if it had been brought as a passenger by the rover. Furthermore, as environmental and space law expert Lotta Viikari puts it, “the introduction of terrestrial substances onto a celestial body, for instance, could permanently jeopardize the existence of possible indigenous life forms. If such life were to exist, interaction with organic substances from Earth could cause mutations, destroy the indigenous life forms or otherwise alter the natural development of life on the celestial body” [8].

This is why international space legislation has been put in place to guard against such dangers.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, from 1967 [9], also known as the Outer Space Treaty, expressly mentions in its Sixth article that the “States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination”.

Furthermore, article 7, paragraph 1 of The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies [10], signed in 1979, also known as the Moon Treaty or Moon Agreement specifies  that “In exploring and using the moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise.”

These two articles are the main reason why, even though NASA has found evidence of liquid water on Mars in 2015, it cannot further investigate the area with its rovers [11].

Complete sterilization is hard to achieve, and could damage the electronic components of the rover. So, until humankind discovers a way to completely sterilize their spacecrafts and rovers, approaching a possible source of liquid water is forbidden. Sending actual astronauts would make things simpler from this perspective, as the sterilization procedures aren’t that difficult, for their case.

Considering this obstacle surpassed, if the grand event takes place and extraterrestrial life is detected, article 5, paragraph 3 of the Moon Treaty provides that “in carrying out activities under this Agreement, States Parties shall promptly inform the Secretary-General, as well as the public and the international scientific community, of any phenomena they discover in outer space, including the moon, which could endanger human life or health, as well as of any indication of organic life”.

I believe that this article’s importance is so great that it should become jus cogens, that is, mandatory even for the countries who have not signed or ratified the treaty.

This article is supported by Article XI of the Outer Space Treaty, which provides that “States Parties to the Treaty conducting activities in outer space, including the Moon and other celestial bodies, agree to inform the Secretary-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 Secretary-General of the United Nations should be prepared to disseminate it immediately and effectively”.

What about intelligent extraterrestrial life? The huge volume of science fiction literature, cinema and games has done well to prepare our minds for such an encounter. Of course, such a discovery would also fall under article 5 of the Moon Treaty, and article XI of the Outer Space Treaty but there are other activities that might benefit from international regulation, especially radio astronomy.


The Search for Extra Terrestrial Intelligence, also called SETI, has as one of its main tools radio astronomy, a discipline discovered accidentally in the 1930’s.

As professor Francis Lyall puts it, “the basic premise of most SETI programmes is that electromagnetic radiation in the form of radio waves can be detected across interstellar distances [12]”.

 This might sound simple in theory but in practice, radio astronomy’s attempts are partially thwarted by artificial interference coming from Earth itself. These interferences could be avoided if international legislation, namely the legal measures undertaken under the aegis of the International Telecommunication Union would be more favorable.

The ITU does indeed take into consideration the existence of radio astronomy, in its Radio Regulations (RR) but the protection is only partial, SETI sharing some of its important radio bands, instead of having exclusive rights. Footnote 5.341 of the RR5 mentions that: “In the bands 1400–1727 MHz, 101–120 GHz and 197–220 GHz, passive research is being conducted by some countries in a programme for the search for intentional emissions of extra-terrestrial origin [13]”.

 Yet, much of this spectrum isn’t exclusive and as such, the danger of false signals is always present.

In the event of contact, aside from the notification obligation mentioned in the Moon Treaty, some soft law has been drafted, with the potential of becoming customary law. Such a legal instrument is the Declaration of Principles Concerning Activities Following the Detection of Extraterrestrial Intelligence [14] (also known as the Post-detection Protocol), approved in 1989 by the Board of Trustees of the International Academy of Astronautics and the Board of Directors of the International Institute of Space Law and has been endorsed by the Committee on Space Research (COSPAR), by Commission 51 of the International Astronomical Union, by Commission J of the Union Radio Scientifique Internationale (URSI), by the International Astronautical Federation and by various individuals, which enumerates several principles which are to be respected in the event of detection.

 As such, “the discoverer should inform observers throughout the world through the Central Bureau for Astronomical Telegrams of the International Astronomical Union, and should inform the Secretary 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”. A list of other institutions which are to be informed is presented, consisting of 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 of the International Radio Science Union.

Furthermore, the discovery would also have to be publicly disseminated through media and all the relevant data shared throughout the scientific community.

An important provision is that, in the case of detection by radio waves, the parties to the declaration should “seek international agreement to protect the appropriate frequencies by exercising procedures available through the International Telecommunication Union”. Also, “immediate notice should be sent to the Secretary General of the ITU in Geneva, who may include a request to minimize transmissions on the relevant frequencies in the Weekly Circular”.

However, I find that the most important provision is that “no response to a signal or other evidence of extraterrestrial 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”. One cannot be rash in contacting extraterrestrial civilization.

And this brings us to the final point of this article. Should we show ourselves to the stars? Should we stay hidden ? Scientists do not yet agree upon an answer. Unfortunately, international law should have forbidden any attempts of transmissions until the dilemma would have been solved and a consensus amongst the scientist would have been reached. We have already transmitted information about humanity via the 1974 Arecibo experiment [15], composed by scientists Frank Drake and Carl Sagan, which will reach the M12 Globular Star Cluster after 25 000 years. A long way, but time isn’t an excuse for risky actions. The Pioneer [16] and Voyager [17] spacecrafts also carry information about Earth, as they dive into the interstellar space. Several other messages have been sent [18]. Yet one famous scientist, namely Stephen Hawking, warns against sending such messages. According to him, as long as we do not know whether the extra-terrestrial beings are peaceful or aggressive, it is better to stay hidden [19]. I believe that this statement should become international law. This is my personal opinion, and I invite the readers to comment upon it.


© 2016 by Space Law Resource. This article is made available under a Attribution-NonCommercial-NoDerivatives 4.0 License (International) (CC BY-NC-ND 4.0)


[1] Tom Siegfried, Humans have pondered aliens since medieval times, April 20, 2016, available at ; Benjamin Wiker, Alien Ideas,Christianity and the Search for Extraterrestrial Life, Crisis, November 4, 2002, available at : .

 [2] Andrea Mustain, Mysterious Microbes Found Deep in Earth’s Crust, December 1, 2010, available at: .

 [3] Michael Schirber, Hydrothermal Vents Could Explain Chemical Precursors to Life, Jun 16, 2014 – available at: .

 [4] Jennifer Frazer, What Lives at the Bottom of the Mariana Trench? More Than You Might Think, April 14, 2013, available at: .

 [5] Jasmin Fox-Skelly, The bizarre beasts living in Romania’s poison cave, 4 September 2015,available at: .

 [6] Helen Pow, Meet the toughest animal on the planet: The water bear that can survive being frozen or boiled, float around in space and live for 200 years, 18 February 2013, available at: .

 [7] Lichen Survives in Space – European Space Agency, available at .

 [8] Lotta Viikari, The environmental element in space law : assessing the present and charting the future, Brill, 2008, p. 51.

 [9] Available in several languages at .

 [10] Available in several languages at .

 [11] Science Alert, Here’s why NASA’s Mars rovers are banned from investigating that liquid water, 30 Sep 2015 available at .

 [12] Francis Lyall, Paul B. Larsen, Space law : a treatise, Ashgate, 2009, p. 541.

 [13] Radio Regulations – Articles, Edition of 2012, p.101, available at .

 [14] Available at

 [15] .

 [16] Elizabeth Howell, Pioneer 10: Greetings from Earth, September 18, 2012, available at: .

 [17] .

 [18] Michael Marshall, Earth calling: A short history of radio messages to ET, 20 January 2010, available at .

 [19] .


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