Supervised by: Dr. Joanna Rhodes MChem, DPhil (Oxon), MRSC, Solicitor. Having completed both her undergraduate degree and DPhil at Oxford University, Joanna qualified as a solicitor and enjoyed a successful career in Corporate and Intellectual Property Law at a magic circle law firm. In addition to her work as Director of Sixth Form at a leading UK school, Joanna is a member of the European Centre for Space Law and has attended DLR Hamburg as a prospective ESA astronaut.
In this article we propose the creation of a multilaterally agreed and extraterrestrial criminal code that would form the basis of a criminal justice system that could fairly and competently handle instances of crime in space.
We discuss the increasing likelihood, as more individuals travel to space, both as crew such as astronauts and as passengers including tourists and eventually colonists, that activity will take place in space that would constitute a criminal offence if it took place on Earth. We consider the different locations in which a crime might take place, including while travelling to or from space, or between temporary and permanent settlements in orbit or located on celestial objects such as the Moon or Mars. We also consider the nature of crimes that might take place and the differences in how such crimes are currently dealt with terrestrially by different spacefaring nations. We recognise that there may be a need to define some completely new crimes such as deliberately wasting or destroying resources such as air, water or food that endangers the life of others.
We identify that there are three main problems to resolve following the alleged commission of an offence in space. These are the jurisdiction under which the alleged perpetrator is to be tried; the mode of trial and the potential consequences of conviction. Jurisdiction is not straightforward since the jurisdiction by which states invoke the competence to try alleged offenders is usually where the crime has been committed and the Outer Space Treaty 1967 currently prevents Outer Space being declared as any nation’s sovereign territory. There is a strong argument for each nation taking responsibility for its own citizens as is the case with the ISS Intergovernmental Agreement but this could lead to the seemingly unfair consequence of two individuals being treated differently for the same actions in the same place. The analogy of the high seas or aircraft, where jurisdiction falls to the registered nationality of the craft might be helpful but this is currently inconsistent with the wording of the Outer Space Treaty 1967 which places responsibility on each state for its own nationals.
Complications in determining guilt while in space are undeniable as forensic investigation may be impossible or scientifically hampered by the conditions in space. A trial may not be practicable due to the delayed communication or the inability to be tried by a jury of one’s peers while located en route to Mars. It may not be practicable to return an alleged offender to Earth for trial, and if someone is behaving in a manner which is a danger to the safety or life of others the need for a swift resolution might hamper due process. The aims of sentencing may need to be different in space owing to the practicalities and availability of resources and this could potentially drive different types of sentences including ones that are not currently available on Earth. There might also be a need to consider capital sentencing where an offender convicted of serious crime cannot practically be returned to Earth or have their liberty removed. On the other hand, more emphasis on rehabilitation of offenders has the opportunity to revolutionise a new criminal justice system that fully considers and values an offender rehabilitated back into a useful member of society.
In proposing a codified system of extraterrestrial criminal law we seek to avoid any future miscarriages of justice that may occur due to jurisdiction, inadequate fair or due process or ill considered sentencing.
‘Space law’ can be defined as the body of law that may govern or apply to outer space and activities relating to outer space (“Our Work Space Law” Acc. 2022). It is not a branch of law, such as tort or contract, but is a collection of many different types of rules and regulations. Space law can deal with matters as diverse as the rescue of astronauts and the terrestrial sharing of information about potential dangers in outer space such as asteroids or space debris (Lyall and Larsen, 2020).
As space travel and activities in space become commonplace, the possibility of the commission of actions which would constitute criminal offences if committed on Earth, on spacecraft, or even on the lunar or martian surface is increasingly likely. This necessitates a consideration of the jurisdiction, process and sentencing for space crime.
A crime can be defined as an action or omission which constitutes an offence and is punishable by law (Merriam-Webster, Acc. 2022 ). The potential for a crime to take place exists wherever there are people present who are capable of committing it. In 2019, the UNODC (United Nations Office on Drugs and Crime) reported a global average crime rate of 6.1 per every 100,000 population. Unsurprisingly, since only 622 people have reached space as of 6th May 2022 (“Spaceflight Stats” Accessed 2022), little to no actual crime has yet been reported as having taken place in space. This means that there has not yet been an opportunity to test the relationships between terrestrial criminal law and space law.
We envisage that the potential for criminal behaviour in outer space will increase, especially as colonies are established on the lunar and martian surface. Such behaviours will likely cover the same spectrum from simple transgressions to more heinous crimes such as murder as we currently experience terrestrially. We therefore argue that the application of criminal law to outer space should be considered urgently before a crime has been committed. This would help to ensure clarity of jurisdiction, fairness of process and proportionality of any sentence.
Crime in Space
While the number of space flights has continued to increase to cater to the needs of governments and people alike, the number of astronauts remains low at 622. Examples of potential transgressions include the following, none of which has proceeded to prosecution:
- 2019 – Privacy – Anne McClain, an astronaut who was stationed aboard the ISS from December 2018 to June 2019, had acknowledged that she accessed her spouse’s account (with whom she was then undergoing a divorce). She also acknowledged that she had previously used the same password to access her spouse’s account (from Earth) to make sure there was enough money to provide for their son (Specktor, 2019).
- 2011 – Theft – NASA organised a sting operation targeting a space engineer’s widow who was looking to sell a moon rock (Baker, 2019).
- 2013 – Criminal Damage – a Russian satellite was damaged after colliding with debris from a satellite that China had destroyed in a 2007 missile test (Baker, 2019).
Spaceflight is overwhelmingly undertaken by highly trained astronauts who are contractually bound to their space agencies and must adhere to codes of conduct and standards of behaviour. Competitive astronaut selection processes are carried out by all the major space agencies (Seedhouse, 2010) which cover psychological suitability as well as academic and physical ability. This has arguably played a part in selecting astronauts who have not shown the propensity to engage in criminal behaviour during the missions carried out so far.
The arrangements for the International Space Station, currently the principal destination of the majority of astronauts spending a period of time in space, can be found in the ISS Intergovernmental Agreement (IGA). A party to the ISS IGA must ensure its citizens adhere to the ISS Code of Crew Conduct (Farand, 2001). The Code covers inter alia a prohibition on taking materials on board for private gain, questions of harassment and matters for the protection of intellectual property. Disciplinary procedures are a matter for the national state of an astronaut. Article 22 makes provision for the possibility of a criminal offence should misconduct of a national affect the life or health of another party or damage the flight equipment of another party.
There is, however, a small but increasing amount of space tourism meaning more ‘ordinary’ people might find themselves in space with the opportunity to commit a crime. Presently in 2022, only a few space flight missions take tourists into space, including Virgin Galactic by Richard Branson, Falcon 9 by Elon Musk and Blue Origin by Jeff Bezos. The selection of space tourists is primarily based on their ability to pay the requisite cost (currently between $250,000-$500,000) and there is little to psychological testing and minimal training. However at the moment these experiences are as short as 11 minutes, leaving little opportunity to commit a crime. If space tourism were to increase in availability, scope and duration, this may change. It is easy to envisage how if a large group of people travelled for a holiday in a lunar hotel for example, there may be a greater chance of theft, among other offences. A tourist may even steal a rock from the moon, and may seek to sell those resources on Earth. It is even possible to envisage overuse or wastage of a valuable resource such as oxygen or water, leading to the death of others, being considered as murder or manslaughter.
Looking beyond tourism, there are high net worth individuals such as Elon Musk, who are determined to colonise Mars. If established it is feasible that such a colony may become large enough for a wide range of possible criminal activity to take place much as it does on Earth. Should every offence be referred back to Earth for due process to take place? What would the jurisdiction be, and is the distance too great for a fair determination to take place remotely? Is it even possible to envisage a point at which the colony would become an independent jurisdiction in its own right, capable of creating and administering its own legal system?.
While it is clear that such a situation lies well into the future, it is within the realms of contemplation, if not yet a possibility. Consideration of jurisdiction for legal matters, especially the handling of offences and offenders is of significance prior to the departure of any colonists. Everyone enjoys some degree of certainty on Earth of how they will be dealt with in the event that they are accused of committing a crime. We argue that it is unreasonable, even for a space tourist, let alone a colonist of another planet to depart the legal security they enjoy on Earth for uncertainty if they are accused of a crime in outer space especially if the potential range of sentences could include the withdrawal of access to resources on the spacecraft enroute to the planet or on the other celestial body, making the sentence effectively a capital one.
Possible locations for crime in space to take place
- On space stations that orbit around the Earth:
There are several space stations that are currently orbiting the Earth, each has a crew of astronauts who are capable of committing a range of crimes of all categories. Crimes that could be committed on a space station could be envisaged to include inter alia theft, arson, murder, assault, kidnapping, hijacking, drug usage/possession, rape, forgery, vandalism, homicide, trespassing.
- On space station that orbit around the Moon:
Much like the crimes committed on Earth orbiting stations, astronauts aboard Moon orbiting stations could essentially commit the same crimes albeit there may be more complications for the jurisdiction of a space station orbiting the Moon in the future if a lunar colony gained independence. Another crime that might be taken into consideration while on the space station is the wasting of food or oxygen due to its increased distance from Earth. Depending on how much the station has to offer, wasting food and oxygen could be considered a serious crime that would lead to severe punishments due to the station’s inability to produce or quickly import more.
- En route to space:
Travelling to space requires transport on a rocket or a spacefaring plane. Plans for ordinary citizens, non-astronauts, visiting space as tourists are already taking place, and in the future it could be envisaged that visiting space would be as simple and accessible as taking a plane to any part of the Earth. A wide range of criminal activity similar to examples that currently exist on aircraft could take place during these journeys including endangering a spacecraft or hijacking.
- En route to different planets:
Long- range missions present particular problems. Difficulties may be encountered with illnesses caused by psycho-social pressures or inherent personality instabilities that lead to diminished competence or reliability. The environment of a spacecraft or of a Moon or Mars base might aggravate any inherent tendencies to mental instability. Provision to support individuals who are struggling and to ensure their mental condition is taken into account when determining culpability for a crime committed on a long journey to another planet is highly relevant to the planning of these missions.
- On temporary bases on the Moon or another celestial body:
Long duration missions present similar problems to long- range missions. In the case of temporarily visiting the Moon or Mars, it might be envisaged that similar methods towards determining jurisdiction and culpability that are in place on Earth should be put in place. The question of how a potential offender should be dealt with prior to trial or determination is highly relevant, especially where those individuals occupy a role which is essential to the wellbeing or survival of others, such as a pilot. If a swift return to Earth is not practical then should a person be detained until such time as they can be returned to Earth, even if in the case of Mars this may be months away? If tried in space would they be permitted to continue to use sparse resources while in detention?
- In permanent settlements on the Moon or a planet:
Unlike temporarily occupying a base on the Moon or Mars, permanently settling would bring into question the sovereignty of the settlers and their right to self determination. In the case of settlers of multiple different Earth nationalities living in a new permanent settlement on Mars it seems unreasonable that each would be dealt with differently according to their former Earth nationality, potentially leading to different criminal responsibility and punishments for two people committing the same act in the same place. We envisage that a permanent settlement will need to establish its own legal system and that the principles for doing so should be agreed between collaborating nations prior to the departure of their citizens to form a group of settlers.
Crime and jurisdiction
A crime can be defined as an illegal act for which someone can be punished by the government especially: a gross violation of law (Merriam Webster, Acc. 2022).
In the majority of jurisdictions the elements of crime are (Encyclopedia Britannica, Acc 2022):
- a voluntary act or omission (actus reus), accompanied by
- a certain state of mind (mens rea). An act may be any kind of voluntary human behaviour
The importance of establishing jurisdiction is elevated when looking at how different states deal with different crimes. Both the elements needed to establish the commission of the offence and the range of punishments or sentences available can differ substantially.
Take the following examples from nations which have already achieved human spaceflight or, in the case of India, are expected to do so within the next five years.
United States – Title 19 of the US Code Part 641 defines theft as: Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
United Kingdom – A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit (s.1 Theft Act 1968). A person guilty of theft shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years (s.54, Criminal Justice Act 1991).
Russian Federation – Theft is defined under Article 158 of the Criminal Code of the Russian Federation as the secret larceny of other people’s property, it shall be punishable by a fine in the amount up to 80 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to six months, or by compulsory works for a term up to 180 hours, or by corrective labour for a term of six months to one year, or by arrest for a term of two to four months, or by deprivation of liberty for a term of up to two years.
India – Theft is defined under Section 378 of the Indian Penal Code (IPC) as whoever, intending to take dishonestly any movable property out of possession of any person without that person’s consent, moves that property to such taking, is said to commit theft (Devgan, 2022). The punishment for the offence of theft is covered under section 379 of the IPC which states that anyone who commits theft will be punished with imprisonment of either for a term which can be changed to a period of three years either with fine, or with both (Devgan, 2022).
United States – Title 19 of the US Code Part 1111 defines murder as the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to aeffect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree. Within the special maritime and territorial jurisdiction of the United States, whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life. Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.
United Kingdom – Murder is defined, at common law rather than by statute, as the unlawful killing of a reasonable person in being under the King or Queen’s peace with malice aforethought, express or implied. This intention is proved not only when the defendant’s motive or purpose is to kill or cause grievous bodily harm (direct intent), but when death or grievous bodily harm is a virtually certain consequence of the defendant’s act (indirect or ‘oblique’ intent). Establishing the offence of murder is built up by a wide body of case law as well as statutory elements. Since the abolition of capital punishment, murder has carried a mandatory life sentence in English law.
Russian Federation – Murder is defined under Article 105 of the Criminal Code of the Russian Federation as the intentional causing of death to another person. It shall be punishable with deprivation of liberty for a term of six to 15 years. If the murder is aggravated by certain other conditions inter alia the murder of two or more persons or with especial cruelty or by a dangerous method, the murder shall be punishable with deprivation of liberty for a term of eight to 20 years, or by deprivation of liberty for life, or by death penalty.
India – According to s.300 of the IPC, subject to some exceptions, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. According to s.302 of the IPC whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
Space is a perilous location. What if a situation arose during which there became fewer resources, such as air, to sustain the number of crew members? Similar situations have come before the terrestrial courts. In a very well known English case Regina v. Dudley and Stevens, 14 QBD 273 (1884); All ER Rep 61, where a cabin boy was possibly killed but was definitely eaten to preserve the life of the others in a lifeboat after the sinking of the Mignonette. In this case a defence of necessity was not accepted and the accused were convicted of murder and sentenced to death. There was some recognition of the circumstances however as the sentence was commuted to 6 months. In the US we have the case of United States v. Holmes, 26 F. Cas. 360 (1842) 5 Wheat. 412, where a seaman had ordered some passengers of an overloaded lifeboat to be thrown overboard to preserve the lives of the remainder by preventing it from sinking. Holmes was found guilty, sentenced to some months in prison and a fine. The possibility exists that in space circumstances may force similar decisions so could these cases, and others like them, be persuasive in sSpace? The presence of alternatives, such as drawing lots, or the voluntary giving up of life for the salvation of others should also be considered. Lyall and Larson (2020) suggest that suicide pills might be an essential component of the space faring medical kit. This would open the question of who would be selected to die. Should it be a volunteer, or determined by ballot, lot or majority vote? Should it be the least important for the mission, or be identified by the commander or mission control? We suggest that before such a situation has the chance to arise, the law must be clear.
As the above examples demonstrate, both the circumstances and the jurisdiction under which an alleged perpetrator will be tried and convicted will have a significant effect on the elements of the crime that need to be proven as well as the possible sentence and the different lengths of time for which a defendant may lose their liberty. In the case of murder the definitions have a wide number of variations as well as different defences available. Whether the defence of necessity might be available is a particular area where codification would seem desirable. Furthermore a defendant may face a death sentence under some jurisdictions and so the determination of the jurisdiction for trying a murder committed in space will be particularly important to the defendant accused of committing such a crime.
The jurisdiction by which states invoke the competence to try alleged offenders is usually where the crime has been committed in their territory. Offenders in such a case may involve not only nationals, but other residents temporary or permanent including foreigners. The extent of a nation’s territory is not easy to define and there is no specific line between air space and outer space. If a boundary were to be agreed, literature generally suggests that approximately 100 km would be a reasonable suggestion (Lyall and Larsen, 2020). Since the OST provides that outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means it can be assumed that a space crime cannot have taken place in the territory of any state and so other rules to determine jurisdiction must be required.
Another possibility for jurisdiction is that competence over a state’s own nationals who have committed crimes outside of the territory. This principle already exists on Earth, with some states invoking it for serious offences, while others apply it to less serious crimes. An extension of this is the “impact territoriality” principle claiming jurisdiction over an offender who has committed a crime outside the territory but it has adversely affected people or property within the state. (Gorove, 1972). This is the model already employed by Article 22 of the ISS Intergovernmental Agreement, which provides that states retain jurisdiction over their nationals while on the ISS but that should misconduct of a national affect the life or health of the national of another party or damage the flight element of another party, the national state of the alleged perpetrator is to consult the other party at its request as to their respective interests in a prosecution. The affected partner state may exercise criminal jurisdiction ninety days (or other agreed period) after the consultation if the national state of the perpetrator so agrees or fails to prosecute under its own legal system (Lyall and Larsen, 2020). While Article 22 of the ISS IGA is useful it is not definitive. Take for example the situation of a space tourist who is not a national of an ISS participant state and therefore not a party to the ISS IGA.
There are some similarities between the individuals on a spacecraft travelling to space and those on an aircraft or ship.Therefore it has been suggested (Gorove, 1972) that similar principles might apply in space, to those on an aircraft or ship on the high seas. Passengers of ships and aircraft fall under the jurisdiction of the national flag under which they sail or fly and there is much case law worldwide to evidence states seeking to, and successfully, applying their own criminal laws to offenders on ships and aircraft. There is also evidence of states making a jurisdictional claim on the basis of location of embarkation or disembarkation (Gorove, 1972). The principle of universality also allows states to claim jurisdiction over any person anywhere in the world. Piracy is a crime which could fall into this category.
In common with ships and aircraft some of those individuals on board are personnel or crew who we can assume are qualified astronauts, trained and contractually bound and others are passengers, tourists or even stowaways who do not necessarily have the aforementioned training or professional requirements or expectations. Determining the jurisdiction for trying an offender is complex even on Earth and there may be multiple claims as well as extradition requests (where a state seeks for an alleged offender to be sent to the state to be tried for the offence). To see whether any such treatment is compatible with Space Law we need to look to the Outer Space Treaty 1967.
The Outer Space Treaty
The Outer Space Treaty 1967 “OST” is a multilateral treaty that is widely acknowledged to form the basis of international space law. The OST is a United Nations Treaty that has 112 parties including all major spacefaring nations. A further 23 countries are signatories.
The core principles of the treaty are:
- the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind;
- outer space shall be free for exploration and use by all States;
- outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;
- States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;
- the Moon and other celestial bodies shall be used exclusively for peaceful purposes;
- astronauts shall be regarded as the envoys of mankind;
- States shall be responsible for national space activities whether carried out by governmental or non-governmental entities;
- States shall be liable for damage caused by their space objects; and
- States shall avoid harmful contamination of space and celestial bodies.
Article VIII of the OST 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, while in outer space or on a celestial body.”
While Article VIII does not make it clear whether the jurisdiction referred to is civil or criminal, the principle that States shall be responsible for national space activities whether carried out by governmental or non-governmental entities is likely to lead to states needing recourse to criminal jurisdiction to assume its responsibility to control not only government but any activities carried out by its own nationals in space. This would be necessary to protect the interests of nationals who are present within its borders even if the act took place outside the state’s territory. It is worth noting that Article II would prevent a state from declaring the moon or another celestial body as its territory and so jurisdiction could not be established over a lunar base for example.
Article VIII also does not make it clear whether the nationals own state has exclusive jurisdiction or whether another claim of jurisdiction could be made by another state, for example if the actions of the individual cause harm to that nation or its citizens. It also does not make it clear that the state has to assume criminal jurisdiction, we have just inferred that it most likely would want to. Any state not party to the OST may not be bound by it, but it is feasible such a state may seek to rely on it, to obtain criminal jurisdiction. It may also bind non-member states as a form of law known as customary international law.
In the case of an aircraft or ship, international law is usually accepting of the principle that the jurisdiction is under the flag of registration of the aircraft or ship. Article VIII of the OST refers to “A State Party to the Treaty on whose registry an object launched into outer space”. The use of “whose” suggests that the registry is owned and kept up to date by the state, rather than an international registry. To avoid any state claiming jurisdiction simply by including a spacecraft in its own registry, the term “retain jurisdiction” in Article VIII could be interpreted to suggest that the state must have had jurisdiction and control of the spacecraft prior to launch.
Article VIII refers to jurisdiction over the personnel of the space object. This raises questions of who could be considered to be personnel and therefore within the scope of the OST. Ordinary literal interpretation of the word personnel would seem to refer to the crew only and not to the passengers, and even less to stowaways or unauthorised travellers. This does not mean that a state could not exercise jurisdiction over these citizens, just that this would be outside the scope of the OST and we therefore recommend that this is a lacuna that should therefore be provided for specifically elsewhere.
Gorove (1972) also identified a challenge in interpreting Article VIII in the situation of foreign nationals transferring to a spacecraft belonging to another nation and committing an offence. The most literal interpretation of the OST would hold that those nationals remained the personnel of their original spacecraft and therefore under their original jurisdiction despite being on another nation’s spacecraft. This is supported by Article VI which provides that the state must exercise continued supervision and control over its nationals, such supervision and control is not qualified by reference to a spacecraft or celestial body. This runs counter to previous international practice with respect to crimes committed on board ships or aircraft on or over the high seas.
It is worth mentioning that states seem reluctant to enforce or apply the principles of the OST even when considerable damage has been done. On November 15, Russia launched a direct ascent anti-satellite (ASAT) missile that deliberately struck Cosmos-1408, one of its own satellites that had become inoperable years ago. The debris field is an expanding cloud that continues to orbit the Earth both above and below the original altitude of Cosmos-1408, putting the International Space Station (ISS) at risk. Under the OST the following principles could apply:
- States shall be responsible for national space activities whether carried out by governmental or non-governmental entities;
- States shall be liable for damage caused by their space objects; and
- States shall avoid harmful contamination of space and celestial bodies.
International reaction condemned the test with US Secretary of State Anthony Blinken calling it “dangerous and irresponsible”. The French Foreign Minister described it as “space vandalism”. But it is notable that while each state’s interpretation of the OST informs that state’s expectations, states did not invoke, and historically rarely invoke in their diplomatic statements, the OST as a source of legal obligation (Borgen, 2021). Another recent example is a statement given by a Russian representative Konstantin Vorontsov who when criticising SpaceX’s satellite system Starlink for aiding the Ukrainian military stated “At the very least, this provocative use of civilian satellites is questionable under the Outer Space Treaty, which provides for the exclusively peaceful use of outer space, and must be strongly condemned by the international community” (Kan, 2022). It is not clear whether Vorontsov was speaking on behalf of the Russian Federation and he goes no further than to label the civilian satellites as questionable.
Trial and Sentence
Since the earliest legal systems, the creation of laws brought the process of determining whether someone had broken them, usually through the process of a trial during which evidence is presented. This has given rise to the almost universal concept of being innocent until proven guilty. The fairest method of trial is widely accepted to be that of trial by a jury of one’s peers. Christopher J. Newman, a reader in public law at the University of Sunderland in the United Kingdom has commented that dealing with crimes in space will be a hard job to do (Newman, 2022). During investigations that happen on Earth, authorities can secure the crime scenes, question witnesses and the evidence can be kept safely. But in space, on space stations and on celestial bodies, this will present logistical and scientific challenges. If a murder was committed on a planet like Mars the analysis of forensic evidence would have to take into account the different physical conditions including the available bacteria, atmospheric and gravitational differences. The veracity of the usual methods of establishing time of death or even DNA analysis would be compromised. But there are few pros too. Because of airlocks and restrictive suits, the movement of space travellers is highly monitored. It would be harder to make any plausible deniability about one’s whereabouts (Rossen, 2019).
If proven guilty through due process one must then consider the consequences for those who dared to break the law. These served as both retribution for the offender as well as deterrent and for the protection of the public so that citizens could enjoy greater safety and security knowing that the majority would be unlikely to commit an offence, being reluctant to serve punishment, and those serious offenders lose their liberty entirely. The modern aims of sentencing vary according to jurisdiction but usually also include rehabilitation and reparation, especially for offences of a minor nature.
The nature of the sentence usually depends on several factors:
- The type of crime one commits
Different crimes lead to different penalties. For example, minor offences may result in a fine or even a warning. As we have already seen above, crimes that are more serious such as theft, murder, and assault could lead to progressively harsher punishments such as loss of one’s liberty, or even, in the most serious cases, death.
- The present of mitigating circumstances.
Most penalties are differentiated by a judge depending on the specific case at hand. The types of factors that will be considered are the presence of mitigating or aggravating circumstances. While one case of murder may lead to prison time, another may leave a convicted offender with a death sentence.
As we have already seen, every state differs in how they create and settle on their laws, what they ban and allow, and the types of punishments people have to face. Some countries are extremely lenient with how they deal with certain offences, while others are extreme and take intense measures in order to punish those who break the rules.
The usual approach to conviction and sentencing is made complicated when one considers the unique circumstances found in space. Firstly the need to assume innocence until proven guilty would mean that before being found guilty the alleged perpetrator must face trial during which evidence would be presented by both sides. This could not easily happen in space given the challenges of delayed communication and the difficulties that may be presented in collecting evidence, especially if the case were technical. Also valuable time, air and resources would be wasted during the determination. If the alleged perpetrator is to be returned to Earth for trial this presents the issue of what to do with them in the meantime. Lyall and Larson (2020) give the example of an astronaut who has become deranged or murderous. If that individual becomes dangerous to others either through murderous intent or indifference to general safety, then they suggest that summary execution may be prudent. Even so, in this situation there is the difficulty of how to deal with the body. In a travelling spacecraft the loss of mass when ejecting the body into space may affect orbital calculations but a decomposing body would otherwise compromise the life-sustaining chemical and biological systems on the spacecraft.
If humans were semi-permanently or permanently settled on a celestial body other than Earth, a number of sentencing options such as fines, reparation or community service would seem to be available. A convicted offender could be returned to Earth, although this may require an unacceptably large amount of cost and resources. However, it is difficult to avoid the fact that in the most serious cases the equivalent of prison, and or a death sentence may be necessary with the latter seeming to be the more feasible given the expenditure on resources that the creation of a prison camp or station, or the transportation of convicted serious offenders would have. If capital punishment is to be used, this may present a problem if the offender is under the jurisdiction of a terrestrial nation which has abolished the death penalty. Such a nation may not be in a position to agree to this situation, for example European states including the United Kingdom are bound by the 13th Protocol to the European Convention on Human Rights (ECHR). It prohibits the restoration of the death penalty as long as the UK is a party to the convention. It also prevents an individual being extradited to another jurisdiction where they may face the death penalty. If the death penalty were deemed necessary in sSpace, there would be wider ramifications on terrestrial legislation including the ECHR.
Ethically, retribution based sentences, such as prison and capital punishment might seem contrary to the values of the more advanced civilisation we would have become, once humans are capable of colonising another planet and other alternatives may have to be found. A more progressive alternative might be to place greater focus on rehabilitation and reparation, with the aim being to reintegrate the individual as a useful member of society. The creation of a self-sustaining civilisation which could afford to expend resources on imprisoning criminals might see the future creation of prison-like locations on the planet’s surface or in orbit around it, by which time it is reasonable to assume the colony would fall under its own jurisdiction and be legally independent from Earth.
We conclude that as society is placing a renewed emphasis on a human presence in space, whether in spacecraft, on space stations or in semi-permanent or permanent colonies on celestial bodies such as the Moon and Mars there will be a greater need to consider the way that crime committed by an offender in space is dealt with. Crime will happen everywhere and there is no reason to believe that space will be an exception, once humans are present in sufficient numbers to establish settlements on planets and other celestial bodies. Space tourism companies continue to bring access to space to a wide range of people and, as can be seen from terrestrial air travel, such a wide pool of individuals will undoubtedly need some form of legal framework to ensure their behaviour can be regulated.
We have shown that there is considerable uncertainty around the jurisdiction under which the alleged space crime perpetrator would be dealt with. While there are case by case agreements, contractual arrangements and codes of conduct, in the case of the ISS for example, the situation for increasing numbers of ordinary citizens entering space as a tourist or colonist is not clearly defined. This presents an unacceptable legal risk to the ‘ordinary man’ in space, leaving behind the rights and privileges he knows that he enjoys in his own nation on Earth.
When it comes to determining guilt or innocence we have concluded that the situation in space makes the likelihood of a fair trial less certain due to delayed communications and the lack of an ability to hold a trial by a jury of one’s peers. Forensic analysis of evidence would be scientifically compromised by the different conditions and an individual might have to wait a long time, or may even need to be returned to Earth to stand trial. The need for a speedy determination of guilt or innocence carries a greater risk of a miscarriage of justice in space.
Not all the usual penalties that can apply to an offender on Earth are available in space due to lack of resources. The danger an offender or potential offender may pose to others might make capital or corporal punishment, which incapacitates an offender, necessary to preserve the safety of others. When added to the increased risk of a miscarriage of justice during the determination of guilt this is a dangerous but potentially necessary scenario.
Right now, all we can do is hypothesise on what may happen, when a crime eventually happens beyond the Kármán line. It may be wise for space faring nations to openly begin discussions that create and preserve the integrity of a fledgling extraterrestrial criminal justice system that may one day become an essential and codified legal system of similar status and complexity to those extant in terrestrial nations on Earth.
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