CRIME SIN SPACE
There has never been a c osmic criminal, but as space travel widens will the current laws be able to cope?
Imagine if an astronaut went rogue one day, stealing another's belongings, smashing up the International Space Station (ISS) and murdering a colleague before fleeing the scene in a Soyuz capsule. It would, to put it mildly, be a pretty shocking series of events, and there is no doubt that the person would need to be punished. But who would bring that person to justice and where would they be tried? After all, there are no courts in space – at least not yet.
Great minds have pondered this question over the years, and it has been answered and revised thanks to the ongoing evolution of space travel. It has led to laws and codes being put in place to deal with potential trouble, as well as wideranging debates over how they could be extended in the future. For while currently only trained professional astronauts have zoomed into the night sky, it won't be long before civilians are riding alongside them.
“To my knowledge, private companies have not adopted any measures to deal with potential crime committed by future space tourists,” says Dr Thomas Gangale, an expert in such matters who holds a doctorate of judicial sciences in space, cyber and telecommunications law from the University of Nebraska. But just what is in place to cover potential criminal
acts in space today, and how many astronauts have actually fallen foul of them?
The answer to that last question is simple enough: astronauts have, at least to date, been very well behaved, so there have been no legal prosecutions brought against any of them for space-related matters. Yet that's not to say that this will always be the case. Fail to abide by rules laid down in the International Space Station International Governmental Agreement (IGA), and in particular within Article 22 which addresses criminal jurisdiction, and trouble won't be too far ahead.
“Space is a global commons and it is governed by international law,” explains Professor Joanne Gabrynowicz, who has been teaching space law for 32 years. “So whatever criminal law is part of international law overall is potentially applicable to space.”
Article 22 is important since it takes into account that the ISS is inhabited by people from various nations and thereby spells out how they should be dealt with in such an international environment should a crime be committed.
“Canada, the European Partner States, Japan,
Russia and the United States,” it says, “may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.” What this means is that those nations are ultimately responsible for their own citizens.
“In general, criminal conduct in outer space falls under the jurisdiction of the state which launched the person,” says Gangale, and this covers anyone who commits assault, homicide or the wilful destruction of property while in space.
Indeed, should an astronaut do anything which affects the life or safety of a national of another partner state, or should it occur in, or cause damage to, the flight element of another partner state, then a law will be deemed to have been broken. In effect, if a British astronaut, for sake of an example, killed a French colleague in a module registered to the United States or wrecked the Russian section of the ISS, then he or she would be tried under British law.
“Astronauts are subject to their own national law and any applicable international law, including treaties and agreements entered into by the state of their nationality,” Gabrynowicz adds. “To the extent that any of these include particular crimes, that portion of the law would be applicable.”
Now there may be an unusual case where a government decides to let things lie unresolved, allowing the alleged perpetrator to effectively get off the hook. In those circumstances a fallback will kick in. “In the unlikely event that the partner state of the alleged perpetrator fails to consider the possibility of bringing charges then the 'victim' partner state may exercise jurisdiction over a non-national if some conditions are met,” says Gabrynowicz. “If necessary the IGA can function as an extradition treaty.”
But it doesn't stop there. In both cases the prosecuting country can expect everyone else to give support as and when it is needed. “The partners are legally obliged to provide mutual legal assistance, for example to recover evidence to be submitted to the competent court of a partner state,” Gabrynowicz explains. In that sense there should be no barriers to justice, and no evidence should be withheld.
Yet how would this be dealt with on board the ISS itself? For that we turn to the space station's Code of Conduct, which applies to a crew member from the time he or she is assigned to an expedition until the completion of post-flight activities.
It establishes a clear relationship between ground and in-orbit management, a management hierarchy and a clear chain of command in-orbit – the ISS commander being ultimately responsible. It then
“In general, criminal conduct in outer space falls under the jurisdiction of the state which launched the person”
sets standards for work and activities in space and on the ground and lays down the disciplinary regulations the astronauts must adhere to.
“ISS crew members' conduct shall be such as to maintain a harmonious and cohesive relationship among the ISS crew members and an appropriate level of mutual confidence and respect through an interactive, participative and relationshiporiented approach which duly takes into account the international and multicultural nature of the crew and mission,” it says under the General Rules of Conduct.
But all that said, space travel is not going to be confined solely to the ISS. There are plans to zoom astronauts off to the Moon and to other planets such as Mars. Laws dealing with potential criminality must extend to these instances too, not only in terms of the destination, but how the astronauts travel.
For this, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space – or the Outer Space Treaty, to give it a more manageable name – comes into play. Ratified by members of the United Nations, it is the legal framework for space agencies and it ensures that “each state which launches or procures the launching of an object into outer space, and each state from whose territory or facility an object is launched, is internationally liable for damage to a foreign state or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space.”
Making clear that outer space includes the Moon and other celestial bodies, there is a stark takeaway from this, in particular to the laws governing travelling spacecraft. “The law will be determined by the nation that registers it in accordance with the Registration Convention,” Gabrynowicz tells us. “If the spacecraft is from a nation that is not party to this treaty [which has not happened so far] then the law that applies would be public international law and the relevant law of that nation.”
All of this means that many crimes are covered. “States have jurisdiction over universal crimes such as piracy, drug trafficking, hijacking, terrorism and human trafficking committed in outer space,” Gangale tells us. Meanwhile, Gabrynowicz says:
“The law on another planet would consist of already existing international law, the national laws that a nation passes to enable it to interpret and implement their obligations at international law and any treaties established for a specific planet.”
But are they adequate? Here the answer is less clear cut, and that is mainly because of our collective approach to space so far. Up to now, everybody who has travelled has been carefully selected for their ability to deal with high-pressure situations. Astronauts don't generally flap when circumstances threaten to spiral out of control and their level-headedness means they are less prone to acting erratically. As such, the structure of the laws reflect this.
“The current criminal legal regime of outer space is far from robust, simply because there has been no perceived need [for it to be any different],” confirms Gangale. “State-sponsored astronauts undergo rigorous selection processes. But as space travel becomes affordable for private citizens, the need for greater specificity in criminal law will certainly develop in response.”
To what degree such specificity will manifest itself is not yet known, and a lot will depend on
the nature of space tourism and how it will evolve. “The space tourist flights contemplated by Virgin Galactic and Blue Origin in the next few years will be suborbital and therefore of short duration, and I believe that for safety reasons passengers will be required to remain strapped to their seats throughout these flights, so there will be little opportunity for them to commit any criminal acts,” Gangale says. “Such flights launched from US territory would be under the jurisdiction of US law, so any crimes committed would be subject to federal and/or state law.”
Even so, experts agree that there will be a need to develop new laws. Indeed, Michelle Hanlon, associate director for the LL.M. program in air and space law at the University of Mississippi School of Law, tells us that it would have to cover the rights of tourists and those employed to take care of them.
“As I have noted in a recent paper, whether a tourist spending a few days on a space station hotel in lower-Earth orbit, a labourer overseeing the manufacture of products in space, a salvager harnessing and repurposing space debris or a scientist conducting research in cislunar, lunar or Martian orbit, private space stations will soon become commonplace,” she says.
“These spacefarers – and the stations they will inhabit – fall within the gaps of the Outer Space Treaty regime. It would be worthwhile to develop universal laws in anticipation of these events – the commonality of humans living, working and vacationing in space – for a number of reasons.”
She believes rules will need to be put in place to prevent unnecessary conflict which could give rise to a diplomatic crisis. She says we must also work to thwart the threat of dystopian tyranny on these private pockets of human civilisation. “We'll need to assure the safety of the hardy souls that venture into space as private citizens and work responsibly to develop international guidelines that will prevent disasters without stifling commercial industry, innovation and exploration,” she continues.
There could also be a need to protect the planets and bodies we travel to. Currently there are no effective laws protecting the lunar environment, but Hanlon wishes for that to change. “Even under planetary protection protocols the Moon is considered a 'Category 1' in that there is no concern about contamination,” she says. “Thus there is no possibility to commit a crime against the lunar environment.” For that reason she is working with a number of organisations to determine whether and how we should consider protecting the Moon.
But what of bodies that are further flung? So far human space travel and exploration has been limited to the ISS and the Moon on relatively short trips, but if we expect a crew to fly to Mars, which will likely take six months minimum, then any stresses and strains could easily magnify. Perhaps in certain circumstances this could lead to someone acting out of character – and how that is dealt with, not just when that person gets back to Earth but while they are in the air, must be considered.
To that end we'd need to look at who would start criminal proceedings and rule on the outcome, and where – if a person needed to be separated – they could be detained. There is a danger that, depending on their skillset, punishment could have dire consequences for the mission. There would certainly be a problem should someone require long-term imprisonment, not least because of the burden that would place on a mission that could last for some time.
“The advent and proliferation of private space stations should be the mainframe from which we, as a society and global community, consider the regulation of extraterrestrial human civilisation,” Hanlon says. It's clear there is a lot to think about as we ready ourselves to take human exploration and curiosity in space into directions which, some 50 years ago, were the preserve of science-fiction. A courtroom on Mars may one day be a reality.
“We'll need to assure the safety of the hardy souls that venture into space as private citizens” Michelle Hanlon