By: Jonas Atmaz Al-Sibaie
As more people head into space and more activities are carried out beyond the territorial claims of any one nation, the more we need to start asking ourselves what to do when things go wrong. What happens when the intergalactic criminals we see in comics and novels suddenly become real-life characters, attempting to evade the law by staying just outside its reach?
Indeed, the world is now finding out that there are no easy answers to questions involving space criminals. The NASA Office of Inspector General has launched an investigation into the activities of Anne McClain, a NASA astronaut who has just returned from a 6-month stint on the International Space Station (ISS). Ms McClain has been accused by her former partner, Summer Warden, of identity theft. While on the ISS, Ms McClain was said to have accessed Ms Warden’s bank account to surveil her finances. This was spotted by Ms Warden’s bank who, when prompted, informed her of the location of the computer with which the account was accessed: space. Ms. McClain has admitted that she has accessed her former partner’s bank account from space, but claims that she was innocently making sure that the family’s finances were in order.
While both Ms McClain and Ms Warden are U.S. nationals, the problem that arises is quite obvious: Ms McClain, the purported criminal, was not in the U.S. at the time of the crime. While territorial jurisdiction differs between various countries, the basics are easy to understand. For example, say Jonas is a U.S. national on holiday in the United Kingdom. If Jonas happens to murder someone, he will be guilty of murder in the United Kingdom. While the U.S. may also prosecute Jonas for murder under international law, this is a rarely pursued course of action. So we must ask, if Ms McClain has committed a crime in space, do the same principles apply, or will she be prosecuted for that crime in the U.S.
Thankfully, and unsurprisingly, this is not the first time that somebody has thought about this conundrum. Article 22 of the Intergovernmental Agreement on Space Station Cooperation outlines that any signatory nation ‘may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.’ One may think that this provides a clear answer to the question posed: Ms McClain, as a U.S. national, is subject to U.S. criminal law. However, history has taught us that the answer to this question is not quite as definitive.
Similar provisions have been used in the past when countries have engaged in cooperative exploration. The Antarctic Treaty provided for similar jurisdictional measures, outlining in Article 8 that ‘observers ... scientific personnel ... and members of the staffs accompanying such persons, shall be subject only to the jurisdiction of the Contracting Party of which they are nationals in respect of all acts or omissions occurring while they are in Antarctica for the purpose of exercising their functions.’ However, practical difficulties with the application of such rules and conflicting customary law has resulted in contested jurisdictional claims.
In reality, a system of criminal liability which is solely based on nationality makes the investigation of criminal activities significantly more difficult. This is because the prosecuting country requires the assistance of the country controlling the territory in order to properly conduct a criminal investigation. Furthermore, in a scenario where both the perpetrator and victim are of different nationalities, the nation of which the victim is a citizen is unable to provide any redress without the assistance of the nation of which the perpetrator is a citizen. Therefore, if the nation of which the perpetrator is a citizen chooses not to prosecute, individuals and states which have been manifestly affected by the conduct are unable to obtain justice. As such, systems of criminal jurisdiction which have operated solely by recourse to the criminal’s nationality have been subject to resistance and have been circumvented.
This may be done by narrowing the applicability of treaty texts (i.e. by limiting which persons are properly so-called personnel within the context of Article 22 of the Intergovernmental Agreement on Space Station Cooperation) and instead relying on customary international law. For example, the Draft Convention on Jurisdiction with Respect to Crime outlines, in Article 3, that ‘a state has jurisdiction with respect to any crime committed in whole or in part within its territory.’ As such, nations may attempt to bypass the rules outlined in Article 22 of the Intergovernmental Agreement by making territorial assertions. Indeed, similar approaches were used by both New Zealand and the United States of America in the investigation of the death of Dr Rodney Marks, who has been suspected to have been murdered in Antarctica in 2000.
While it is unlikely that the investigation of Ms McClain will provide us with any concrete answers to the questions posed above, it helpfully raises the prominence of these issues such that they may generate a productive academic discourse around criminal jurisdiction in space. It is abundantly clear that such discourse is needed for the proper administration of justice as we continue to explore space, particularly with the potential for the commercialisation of space travel arising in the near future.
Chatham, Todd F. “Criminal Jurisdiction in Antarctica: A Proposal for Dealing with Jurisdictional Uncertainty and Lack of Effective Enforcement.” Emory University School of Law, 2010.
Intergovernmental Agreement on Space Station Cooperation. State.gov, www.state.gov/wp-content/uploads/2019/02/12927-Multilateral-Space-Space-Station-1.29.1998.pdf. Multilateral treaty.
The Antarctic Treaty. https://documents.ats.aq/keydocs/vol_1/vol1_2_AT_Antarctic_Treaty_e.pdf. Multilateral treaty.
Dickinson, Edwin D. “Draft Convention on Jurisdiction With Respect to Crime.” The American Journal of International Law, 1935, pp. 439–442., doi:10.2307/2213634.
LegalEagle. “The World's First Space Crime? IN SPACE! (Real Law Review)”. YouTube, 2019, www.youtube.com/watch?v=jwytk9QH-zg.
Baker, Mike. “NASA Astronaut Anne McClain Accused by Spouse of Crime in Space.” The New York Times, 2019, www.nytimes.com/2019/08/23/us/nasa-astronaut-anne-mcclain.html.