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When Do You Need a Space Lawyer?

For the first time in recorded history, a crime may have been committed in space and our Space Law “expert” is here to break it down for you.

The American National Aeronautics and Space Administration (NASA) is reportedly investigating claims that astronaut Anne McClain accessed the bank account of her estranged spouse from the International Space Station (ISS).

Setting aside the issue of whether or not the astronaut committed a crime, the real questions are: can a crime be committed in space in the absence of legislation?; if a crime is committed in space, who investigates the crime?; and who has the jurisdiction to prosecute an offence?

Currently, there are five international space agencies involved in the ISS — the US, Canada, Japan, Russia and the European Space Agency. Australia is dragging it’s heals, but hopefully the Australian Space Agency gets up and running properly soon.

At this stage there is no international law that applies to people who are beyond Earth. In 1996 the United Nations Office for Outer Space Affairs developed the Outer Space Treaty which was a basic framework for international space law. Some of those principles include:

  • 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 (just in case we meet little green people up there);
  • 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.

This Treaty provides that the agencies will operate under their own agreed legal frameworks, which stipulate that national law applies to any people and possessions in space – Americans are subject to American law in space, and Russians subject to Russian law, etc.

So, in answer to the first question – yes, a crime can be committed in space, although what might be a crime to the Americans, might not be a crime to the Russians.

Who then investigates the crime? In 1998 the International Space Station Intergovernmental Agreement was developed for the use and inhabitation of the ISS. Under this Agreement, the basic rule is that ‘each partner shall retain jurisdiction and control over the elements it registers and over personnel in or on the Space Station who are its nationals’. This means that the owners of the Space Station – the United States, Russia, the European Partner, Japan and Canada – are legally responsible for the respective elements they provide to the ISS.

This extension of national jurisdiction determines what laws are applicable for activities occurring on ISS elements (e.g. European law in the European Columbus Laboratory).

So, in answer to the second and third question, any crime committed in outer space by a US citizen would fall under American jurisdiction, as if a crime had been committed on Earth in the US. Therefore, in Lieutenant Colonel McClain’s situation, the allegations would be investigated by the United States, and if evidence suggested a crime did occur, the prosecution would also be by the United States.

If you or your family have been involved in a crime in space, contact one of our space law experts today.