Criminal Jurisdiction in Outer Space

Author: Tom Walker

On 24 August 2019 various news organisations reported that NASA was investigating a potential criminal offence, namely that astronaut Anne McClain had unlawfully accessed her estranged spouse's bank account from the International Space Station (ISS).

Interesting questions of jurisdiction clearly arise.  The ISS is basically a research laboratory orbiting the earth at up to 410 km altitude, launched as a result of a collaboration between different nations and the European Space Agency, as set out in a series of Intergovernmental Agreements and Memoranda of Understanding.

The ISS predecessor, the Mir Space Station, was registered by the USSR/Russia.  Article VIII of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Celestial Bodies establishes that states shall have jurisdiction over registered objects launched into space 'and personnel thereof'.  The 1972 Convention on International Liability for Damage Caused by Space Objects also provides that the launching state has liability for any damage caused by its object. In line with these provisions and the 1975 Convention on Registration of Objects Launched into Outer Space (which provided for quasi-territorial jurisdiction to the registering state) Soviet/Russian jurisdiction applied to the Mir.

However, as the ISS contains modules produced by different nations, competing dual jurisdiction can arise.  For example, Russia could potentially exercise jurisdiction over an offence committed within its module (although in practice, due to the agreements, personal jurisdiction over nationals would apply).  In theory of course, a claim for territorial asylum could be made by entering a foreign-registered module in outer space.

In the meantime, as Anne McClain has now returned from the ISS, and denies any wrongdoing, the investigation will no doubt take a more down to earth approach.

However, as space tourism becomes a reality, so might the need to consider criminal jurisdiction in more detail.  Indeed, in readiness for the rapid development of the space industry, the UK recently passed the Space Industry Act 2018.  Whilst the detail of the provisions have yet to be enacted, section 51 of this Act (once in force) caters for this very point – space offenders aboard UK-registered spacecraft can be prosecuted in UK courts. As they say – watch this space.

If you would like further advice in relation to the Space Industry Act 2018, and the safety and security dimensions of Space and Aviation Law, please contact Tom Walker.