Is there any legal jurisdiction in space?
With the expanding industry of space exploration, a looming problem of law and order has arisen. Space exploration — which right now is being conducted limitedly by governments and private corporations — is uncharted in terms of exploration and consequently in terms of laws and regulation.
In the midst of 2019–2020, an astronaut Anne McClain is being accused by Summer Worden, her estranged wife, of illegally accessing her bank account from the International Space Station after the separation. Anne McClain has stated by her lawyer that she continues using and accessing Ms. Worden’s account after the divorce filing to make sure that the family’s finances are in order in the account of their child’s wellbeing that is in the custody of Ms. Worden. But in Ms. McClain’s defense, she never felt being prohibited to access the account by Ms. Worden especially to ensure the family’s economic safety.
In the status quo, there is no related legal framework to handle criminal disputes in space. Although, there is a small section on criminal jurisdiction in the Outer Space Treaty 1967 and the Intergovernmental Agreement (IGA) on Space Station Cooperation 1998 that could regulate such a case.
For every country in the world, their respective jurisdictions are generally being established based on their territory. the territory of the country is governed by the nation’s government where they exercise their authority and laws. Essentially, everything that is inside the nation’s territory is governed by them and practically can do anything with it — with constraints of related laws. Space, however, does not belong to any country on earth which means space does not have any jurisdiction. Some might argue that there are parallels between space and high seas because both zones are not governed by any countries thus the same principles are applicable such as; the principle of free exploration of space and jurisdiction of its space object.
To address the importance of jurisdiction, I must first address the importance and the basis of law. Law is inherently a norm of conduct, a set of rules to keep and to control peace and to deter crime and danger. Law and jurisdiction must go hand to hand as law creates the aforementioned set of rules whilst jurisdiction governs where and whom those sets of rules are applied. So without the presence of jurisdiction, any kind of law can be deemed invalid. Such as what happened with criminal law’s existence that should regulate the McClain and Worden’s case but because it has no jurisdiction and related laws in space, thus criminal law is invalid.
The ramification of missing laws and missing jurisdiction are fatal because each case won’t be handled properly. Especially in the status quo, whereas the ever-expanding industry of space exploration, space mining and space tourism there ought to be a legal case in every area such as in civil law and criminal law, like what happened with the estranged couple. Ideally, in a well-established society, there are no missing laws and missing jurisdictions yet because space activities are still underdeveloped it is important to remember it is normal for apparent flaws in every process. Even if it is normal, I believe it’s also equally important to prepare for every legal case that may arise.
No state or political party owns space. State borders and political boundaries do not exist past the earth’s atmosphere. Article VIII of the Outer Space Treaty 1967 states “A state party to the Treaty whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.” It means that, if a crime committed in a space station belongs to a specific state, that state would have legal jurisdiction in the case and have the right to conduct an investigation. However, this case is more complex because it happened at the International Space Station which does not belong to a specific nation.
The International Space Station (ISS) is governed by an international treaty called the Intergovernmental Agreement (IGA) on Space Station Cooperation. The agreement was signed by Canada, the European States (Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain, Switzerland, and the United Kingdom), Japan, Russia, and the United States in 1998. According to the IGA, Article XXII (1) that states “Canada, the European Partner States, Japan, Russia, and the United State may exercise criminal jurisdiction over personnel in or any flight element who are their respective nationals.” and Article XXII (4) that states “Each Partner State shall, subject to its national laws and regulations, afford the other Partner assistance in connection with alleged misconduct on-orbit” In other words, because Ms. McClain and Ms. Worden are U.S. Citizens, this case falls under the U.S. legal jurisdiction and their law would be applied here.
What Ms. McClain did can be justified as a criminal act as she is without permission to access her ex-wife’s bank account, even if it’s based on good faith to ensure their child’s safety — nevertheless it is still illegal access. This crime even if it’s in space and is being conducted in a shared space station does not deter her act of doing illegal activities because online illegal access can be done anywhere and not limited to space. Some might argue that space does not have any laws nor jurisdiction thus makes anything that is not yet regulated can be justified based on the legality principle that stated “nullum delictum nulla poena sine praevia lege poenali” that translates “there is no criminal act if it’s not based on any rules.”. But using this basis and logic is detrimental because every criminally insidious act can be done and cant be put to trial.
I believe this sets a bad precedent for space laws and should not be applied because much more serious cases can rise and bring more harmful effects towards the concerning parties. If this happens, law and order won’t exist because anarchy will thrive in the new era of space exploration.
Originally the situation would have been more complex if this case had happened in space between two astronauts of differing countries, the two countries have to deliberate to figure out which law to use. And according to Article CXX of the Rome Statute 1998, if they could not come to an agreement after three months, the government of the supposed victim is granted jurisdiction if the supposed perpetrator refuses to cooperate.
IS IT ACTUALLY THE FIRST CRIME EVER COMMITTED IN SPACE?
Ms. McClain and Ms. Worden’s case is the first crime committed in space that has become a reality slap for a legal world that there is a legal vacuum in space law because there is not a detailed framework on how to face criminal disputes that occur in space, especially if issues arise between individuals from separate nations.
Therefore, it is time for the international community to discuss how to face possible cases that might arise on commercial space stations and spacecraft. And private companies that plan to carry people to space need to have contracts with specific articles detailing what law will apply when there is criminal conduct. So private companies will have a plan to ensure all countries are adhering to the Outer Space Treaty if there is a criminal allegation. The IGA could be a great fundamental regulation based on the detailed framework and the United Nations could come up with some sort of resolution that deals with this issue specifically.
And now would be the right time to start the discussion since there are a lot of space projects on the way such as SpaceX that proposed sending people around the Moon and to the lunar surface to start a base.