In August 2019, reports emerged of NASA investigating an allegation that an astronaut committed a crime in space. This gives rise to the question: what criminal law is to guide individuals in outer space? In that particular instance, the answer is relatively straightforward because both the alleged perpetrator and alleged victim are United States nationals and because the alleged conduct took place on the International Space Station (ISS), which is governed by an agreement with specific provisions on criminal jurisdiction. In sum: the law of the United States applies. However, if the victim or perpetrator had been of different nationalities, and had the conduct taken place other than on the ISS, the answer might be more complex.
Why does it matter?
The question of criminal jurisdiction in space is particularly relevant because human activity in space is increasing. The United Nations Committee on the Peaceful Uses of Outer Space has grown from 24 member States in 1959 to 92 member States in 2019 and the Organisation for Economic Cooperation and Development reports that the space sector is currently experiencing an ‘innovation-driven paradigm shift’. Space has relevance for many aspects of human life, not least because remote sensing technologies such as satellites, can be usefully applied to health, agriculture, environment, disaster management, education, transportation, communication, and humanitarian assistance.
In the future, outer space may include ‘colonies established, operated, and populated’ by humans. Further, despite efforts to make outer space a demilitarised zone, military presence in space ‘has been substantial since the beginning of space exploration’. Additionally, the confluence of space tourism, space exploration, private commercial interests, and space mining means ‘there will soon be new types of relationships occurring between individuals in space who are not necessarily representatives of a State entity and that the treaty regimes have not anticipated’.
The law of extraterritorial criminal jurisdiction
Under customary international law, States are entitled to exercise jurisdiction on three main bases: territoriality, nationality, and universality. There is no clear hierarchy of jurisdiction at international law and this can lead to tensions between States, particularly given the limited value of doctrines such as comity. In short, the territoriality principle may be invoked where conduct either takes place within a nation’s borders (subjective territoriality), or the effects of the conduct are experienced within the borders (objective territoriality). An example of objective territorial jurisdiction can be seen in a hypothetical murder on the border between State A and State B. A gun is fired across the border from State A into State B, where it causes injury and death. Although the trigger was pulled in State A, the injury from the bullet occurred in State B.
The nationality principle can provide a State with grounds for jurisdiction where a victim (passive nationality) or a perpetrator (active nationality) is a national of that State. A common example of an assertion of active nationality jurisdiction can be seen in extra-territorial child sexual offences legislation. An example of passive nationality jurisdiction is State A legislating an offence to recklessly or intentionally harm, commit manslaughter or seriously injure a State A citizen or resident anywhere in the world.
The universality principle is reserved for conduct recognised as a crime under international law, such as piracy, genocide, and crimes against humanity. Unlike other grounds of extraterritorial jurisdiction, which demand some connection with the regulating state (such as nationality), this principle provides every state with a basis to prosecute certain international crimes.
International law also recognises a protective principle of jurisdiction, wherein a State can assert jurisdiction over foreign conduct that threatens national security. The protective principle has been used to prosecute extraterritorial offences relating to counterfeiting currency, desecration of flags, economic crimes, forgery of official documents such as passports and visas, and political offences (such as treason).
There is also lukewarm support for an effects principle of jurisdiction. Examples of claims of effects jurisdiction can be seen in anti-trust and competition laws. Effects doctrine jurisdiction, however, is controversial and fraught with risk of over-reach.
What is the law of extraterritorial jurisdiction in outer space?
The starting point is that space, like the High Seas, is considered either res communis or res nullius – it belongs to everyone and to no one. It is no one State’s territory. There are currently five key treaties governing space: the “Outer Space Treaty”; the “Rescue Agreement”; the “Liability Convention”; the “Registration Convention”; and the “Moon Agreement”. There is also an International Space Station Intergovernmental Agreement (IGA), which, while not a general treaty as such, is still a source of criminal law applying to the ISS.
The Liability Convention istangentially relevant to the issue of jurisdiction because it provides for procedures for the settlement of claims for damages and the Registration Convention creates an obligation to register space objects, which in turn may go to the question of jurisdiction over an object. However,of most relevance to criminal jurisdiction is the Outer Space Treaty and the IGA, which, while not a treaty as such, is still a source of criminal law applying to the ISS.
In essence, the Outer Space Treaty is an exhortation to good behavior: the exploration and use of outer space is to be free, in the interests of all countries, and not subject to a claim of sovereignty, and the moon and other bodies are to be used only for peaceful purposes. States are prohibited from placing weapons of mass in destruction in orbit or outer space and the militarization of celestial bodies is forbidden. States are responsible for national space activities and are liable for damage caused by their space objects.
Article 8 of the Outer Space Treaty provides that: ‘A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof’. The reference to “thereof” seems to imply a State would have jurisdiction over any personnel on board the spacecraft, regardless of that person’s nationality. This is analogous to a type of “flagship” jurisdiction. Notably, the term ‘personnel’ is not defined and it is not clear if it would extend to citizens travelling, for example, as space tourists rather than on official State business. This also means there is a distinction between criminal acts carried out onboard a spacecraft and criminal acts carried out outside. Article 3 of the Outer Space Treaty provides, however, that the exploration and use of outer space be ‘in accordance with international law’. Given the principles of extraterritorial jurisdiction are recognised at international law, those principles can also apply in space.
As noted above, the IGA has express provisions on jurisdiction over crime on the ISS. The provisions only apply onboard and are only binding on the ‘Partner States’. Article 22(1) states:
Canada, the European Partner States, Japan, Russia, and the United States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.
This is an example of active nationality jurisdiction. Article 22(2) provides for passive nationality jurisdiction, but only where the ‘Partner State’ of which the perpetrator is a national either ‘concurs’ in such exercise, or doesn’t provide assurances that it will prosecute the perpetrator.
What about (very) serious crimes in space?
It’s possible the jurisdiction of the International Criminal Court (ICC) may extend into outer space. However, it would only apply, as on Earth, with respect to the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. It would also only apply if either the ‘State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft’ was a State Party; or where, ‘the State of which the person accused of the crime is a national’ is a State Party. And, of course, as Article 1 of the Rome Statute of the International Criminal Court provides, ICC jurisdiction is complementary to national criminal jurisdictions.
What about human rights in space?
If the legal authority of the State can stretch extraterritoriality into space, it follows that human rights obligations do too. The United Nations Human Rights Committee, which hears complaints of violations of the International Covenant on Civil and Political Rights, might have jurisdiction to hear complaints relating to space.
What are the challenges facing the law of jurisdiction in space?
There are a number of challenges facing law in space:
- Nationality: the changing nature of citizenship and the lack of consistent approach to the grant and revocation of citizenship by nation-states may present challenges to jurisdiction (on Earth too). For dual citizens, there is the possibility of being subject to multiple, and potentially conflicting, legislative regimes.
- Delineation: The precise point at which airspace becomes outer space is still the subject of debate. This is because the atmosphere does not change dramatically at any certain or consistent height. While that might seem a question of semantics, it could be important, for example, in deciding whether air or space law applies.
- Space Tourism: In 2001, Dennis Tito became the first ‘space tourist’. At the time of writing, seven private citizens have paid to go to space. In December 2018, Virgin Galactic conducted their first trip to ‘near-space’. In the future, this likely means civilians of various nationalities in space and not on the ISS, either.
These particular challenges exist in addition to those already complicating the regulation of extraterritoriality on Earth, such as competing claims to jurisdiction and, in some cases, politically motivated assertions of jurisdiction and a lack of procedural protections for individual accused persons. So, while existing principles of jurisdiction do apply in space, there may be a need for the development of a specialist regime guiding criminal jurisdiction in outer space.
Dr. Danielle Ireland-Piper is Associate Professor of Law at Bond University. She is the author of ‘Accountability in Extraterritoriality: A Comparative and International Law Perspective’ (Edward Elgar, 2017). Dr. Ireland-Piper is grateful to Professor Steven Freeland and Donna Lawler for their guidance on all things Space Law and to Professor Dan Svantesson for the opportunity to explore these ideas. All shortcomings, however, are entirely her own.