A ‘WHODUNNIT’ IN SPACE: Analysing Criminal Jurisdiction for Private Crimes in Space
This piece has been written by Chaitanya Gupta, 3rd year law student at Jindal Global Law School, O.P. Jindal Global University.
Credit: Trifonenko Ivan
There has been a sudden growth in space travel and exploration over the past few years. During one such space excursion, the first instance of private crime in space has been alleged to have been committed in 2018 by Anne McClain, a NASA Astronaut deployed on a six-month mission to the International Space Station (ISS) for the first planned female spacewalk. The contention was brought during a custody battle by her spouse, Summer Worden, a former US Air Force Intelligence Officer. It was alleged that McClain, while on deployment, had accessed Worden’s financial records without her consent or knowledge. Additionally, a claim of identity theft was also made. However, McClain escaped these charges by claiming that she was merely ensuring the presence of sufficient funds for the child that they were raising, and that this had been a regular practice throughout her relationship with Worden. This was the first reported incident of a private space crime, where at least one of the parties was in space.
This makes the concern over space crime ever so real, not just because of the occurrence of the McClain-Worden incident, but due to the multiple instances of crime that have been reported in studies that mimic the social and psychological conditions that individuals would encounter in space. Russian Institute of Biomedical Problems, in the 1990s held multiple studies to replicate the isolated environment of spending 110 days on Mir, the Russian low-orbit space station. In this experiment, as reported by Julian Hermida, the astronauts were unable to remain civil, and there were multiple reports of assault, battery, sexual harassment and assault, and even attempted murder. Thus, there is evidence indicating the real possibility of increased space crime with an increase in space travel. To this end, the eminent space lawyer Thomas Gangale likened space crime to Californian earthquakes: We know it’s coming, but we just don’t know what to do about it yet.” Gangale thus attempts to issue a warning to reform our existing judicial systems to accommodate for space crimes.
Within such a contextual framework, it becomes imperative to deliberate over how criminal jurisdiction will be exercised in space. Therefore, this article seeks to explain criminal jurisdiction vis-à-vis private space crimes. It draws an analogy with the high seas, and explores the application of principles of nationality, territoriality and universality, while highlighting some gaps in the existing jurisdictional framework of space.
NATURE OF SPACE JURISDICTION
While, there was no stricto sensu prosecution in the McClain-Worden incident, its occurrence begs the question, how would private crimes in space be tried? This question becomes altogether more pertinent due to the increased incidence of human spaceflights, space tourism, and other commercial space activities. To answer this question, scholars have compared outer space to the high seas, since both are res communis, as they belong to all and no one, and no one can lay claim to them. This is important as several jurisdictional principles qua space can be derived from the rules governing the high seas.
Furthermore, out of the five important international treaties on space, the Outer Space Treaty (OST) becomes the most important qua crimes in space. The OST gains primacy qua the other treaties, because it alone captures certain principles concerning the exercise of jurisdiction in space (Article VIII of the OST).
As space is universally owned, the concern is, who tries individuals for crimes they commit in space? To answer this, it is important to consider four important aspects of jurisdiction; first, territory, second, nationality, third, territorial impact, and fourth, universality. The discussion over jurisdictional limits assigned by international agreements will also be briefly interspersed between the aforementioned analysis.
TYPES OF JURISDICTION
States employ the principle of territoriality to determine that an offence took place in their territory, and then prosecute the offender. Since space is res communis, no single country can claim an area where an offence took place as their national territory for them to exercise jurisdiction to prosecute the perpetrator. In such an eventuality, the nationality of the perpetrator or victim is considered, thereby covering crimes by nationals outside the borders of their country.
This problem of nationality is squarely covered in the ISS intergovernmental agreement. If a US citizen, who is a partner-nation to the ISS agreement, commits the crime then the US would prosecute the perpetrator, using their domestic law by the help of active-nationality jurisdiction. This would be the simple conclusion when the victim is also a US citizen. However, if the crime was committed on a citizen of a different partner-nation, by a US citizen, and the US has not made any assurance of prosecuting the perpetrator, then the victim’s country can initiate prosecution based on passive-nationality jurisdiction. These basic conclusions can become more complicated especially in scenarios not contemplated in such an intergovernmental agreement, or the OST.
The ISS agreement does not contemplate human space activity other than what takes place in the ISS itself. Further, the OST prescribes a similar nationality principle, but limits it to the personnel of the launching States, or the State where the space vessel and the personnel were registered for spaceflight. Thus, Art.VIII OST, which, inter alia speaks of jurisdiction over personnel, does not account for crimes committed by, or on passengers, visitors, or stowaways on the spacecraft. In light of the rising number of private spaceflights and space tourism, there is an increased number of private citizens in space, who stand unprotected by a legislation if they are subject to, or perpetrate a crime. In such a predicament, the only recourse that the OST stipulates is to look at the State of registry. On paper, this is simplistic, however, it fails to account for foreign personnel flying on such vessels, and it assumes the ease with which a State would give up its primary jurisdiction.
The third and fourth concerns qua jurisdiction primarily involve countries taking effectively suo motu cognisance of offences over which it may not possess primary jurisdiction. One of such methods is called the impact territoriality principle, or the protective principle. Accordingly, a State may convict an offender if their crime affects the people or property within that State. By extending this principle, a fundamental idea of universal jurisdiction can be gauged. By employing this method, States can claim jurisdiction vis-à-vis any crime committed by any person anywhere.
An example of universal jurisdiction can be found in the ongoing case of Argentina prosecuting Myanmar for the genocide of Rohingya Muslims. However, a more pertinent example would stem from the instances of States prosecuting the offence of piracy on the high seas, which, as per the above deliberation would be a parallel to crimes in space. While even in these cases, the State on whose registry the space object was named would have a better claim for jurisdiction, it would not bar a State from exercising this principle of universality. This can again be exemplified by using the embarkation and disembarkation principle of the high seas. Accordingly, the State from which the vessel has departed would have the most appropriate jurisdictional claim on the vessel, and its passengers and personnel.
One can thus draw an inference that space law on criminal jurisdiction serves some basic function, which may be put to test in these evolving times. Among the abovementioned problems, Art.VIII OST and respective intergovernmental agreements do not account for rules of double jeopardy (no estoppel on a second State to prosecute the perpetrator regardless of their acquittal or conviction in the first State), non-party states, and claims of competing jurisdictions, as Art.VIII does not create ‘exclusive jurisdiction’. Furthermore, Art.VIII creates a very minimalistic requirement of registration for a State to exercise jurisdiction. In this regard, it is often contended that a registering State should also possess control over the objects and individuals flying to space for it to exercise jurisdiction over them.
These problems are enhanced by the fundamental question of how far up is space? Considering the present State of space tourism, vessels may not necessarily even leave the Earth’s atmosphere. Thus, any resulting crime would be subject to either space law, or air law of a State, thereby adding to this confusion. Further, Art.VIII does not envision crimes committed on a celestial body, if read literally. Only crimes adversely affecting spacecraft, equipment, or personnel would be tried with the registry principle, which has not been given any teeth to by international standards or any organisation.
An analysis of space crime jurisdiction would be incomplete without a brief discussion over the jurisdiction of the International Criminal Court (ICC) to try crimes committed by individuals. In its present form, the Rome Statute that governs the ICC would only allow for the prosecution of genocide, crimes against humanity, aggression and war crimes, if such an eventuality occurs in space. However, the commission of such crimes is less likely, as it is forbidden by the existing international space legislations to use space as a military arena.
Thus, the present state of space law merely offers some workarounds to incorporate private space travel. The OST, a State-centric treaty, is expansively interpreted to give the registering State a claim to prosecute private corporations or individuals. At present, space legislation only offers workarounds like universal jurisdiction to try space crimes; the use of principles of the high seas in space; and an overly expansive understanding of Art.VIII OST to fit pressing needs, without providing a comprehensive framework.
This analysis highlights the current gaps in space law qua criminal jurisdiction, some of which have persisted since the enactment of the OST. The increasing rate of space activity prompts the need for a concerted domestic and international effort to avoid lawlessness in space. Thus, this article attempted to outline the gaps in present space jurisprudence, which need to either be incorporated or addressed by subsequent meaningful and comprehensive space legislations.