From the Reference Desk: Jurisdiction over Space Crimes

By Amy Flick

A long time ago, in a law school far, far away, before the pandemic lockdown, I was meeting with students in person. I miss those days. Anyway, a student asked me for help with her seminar paper. She wanted to write about jurisdiction over crimes in space, specifically on a hypothetical future Mars colony. She assumed that jurisdiction would be based on the law of the sea.

She wasn’t wrong, but the international community has addressed jurisdiction over spacecraft, if not specifically space colonies. I started with my favorite starting point for international law questions, the Max Planck Encyclopedia of Public International Law. The article on Jurisdiction of States notes that the principle of jurisdiction of the State of registry for ships has been extended to spacecraft, citing Article VIII of the Outer Space Treaty[1]. The article on Outer Space provided more information on the treaty, but we found the article on Outer Space, Liability for Damage even more helpful. Although the article did not address criminal liability or jurisdiction, focusing mostly on damage by space debris, it cited Article VIII of the Outer Space Treaty as well: “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.”

We went to the full-text of the treaty from there. The Oxford Law Citator with the Max Planck Encyclopedia provided a link to the treaty on the United Nations Treaty Collection site, but with the UNTS citation (610 UNTS 205), we also looked at the treaty on Hein Online in the United Nations Law Collection to start her secondary source research. Hein Online showed 2040 law review articles citing the 1967 Outer Space Treaty, but a search within results for articles with “criminal” and “jurisdiction” in the title narrowed that to more manageable seven law review articles, including articles on establishing criminal jurisdiction on outer space colonies and on the International Space Station.

The handful of articles on point meant that the student might need to distinguish her topic, but they did provide numerous footnote citations for her to work with. They cited the 1998 Intergovernmental Agreement on Space Station Cooperation[2] and the Code of Conduct for the International Space Station Crew[3], and they pointed us to UNOOSA – the UN Office for Outer Space Affairs. UNOOSA’s website offers the text of the five UN treaties on outer space with status and travaux préparatoires, UN resolutions related to space activities, and a collection of national space laws and regulations. There is even buried on the site a 2013 PowerPoint presentation on the legal framework for the International Space Station with information on the ISS agreements, including criminal jurisdiction under Article 22 of the Intergovernmental Agreement.

So, it appears that state registry or ownership determines jurisdiction for most spacecraft, but a multinational venture like the International Space Station, as a model for a Mars colony, requires an agreement by the state parties to settle issues like criminal jurisdiction.

From that beginning, I recommended a few other secondary sources for background and further research. As a standard work on international law to cite on the principles of jurisdiction, I suggested Brownlie’s Principles of Public International Law,[4] available in our Oxford Scholarly Authorities database. There were also several titles in the library’s catalog that looked promising. The International Space Station: Commercial Utilisation from a European Legal Perspective[5] addresses criminal liability, and the Encyclopedia of Space Science Research[6] includes a section on criminal jurisdiction. The library’s collections also included more general works on space law, including Space Law: A Treatise, A Fresh View on the Outer Space Treaty, and for a quicker read, The Little Book of Space Law.

Wrapping up our meeting, the student left with treaties, agreements, and other documents to use for jurisdictional issues in her future Mars colony, and sources for discussing criminal jurisdiction more generally. And I learned a little about space law.

 

[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (United Nations [UN]) 610 UNTS 205, Art.VIII.

[2] Agreement among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation and the Government of the United States of America concerning cooperation on the Civil International Space Station, TIAS 12927.

[3] Code of Conduct for the International Space Station Crew, 14 CFR §1214.403 (2006).

[4] James Crawford, Brownlie’s Principles of Public International Law, pt. VII (9th ed.2019).

[5] The International Space Station: Commercial Utilisation from a European Legal Perspective (F.G. von der dunk and M.M.T.A. Brus, eds., 2006)

[6] Encyclopedia of Space Science Research (Raul Lajara and Javier Baron, eds., 2012)

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