legality prosecute outer space crimes space law ISS spaceships moon

Space: the final frontier. It’s big. It’s empty. It’s… the perfect place to commit a crime? This week, we’ll channel our inner Hal 9000 and figure out just how many astronomical units we have to travel before we can escape the all-powerful gravitational pull of the United States criminal justice system.

We can start with the low-hanging fruit. Given how difficult space travel is these days, (The last time we made it to the moon was nearly 50 years ago, in 1972.) it’s fair to say that space is a great place for criminals to hide — provided they can figure out how to get there in the first place. Sci-fi aficionados might recognize this strategy from the Austin Powers series, or, more recently, in Iron Sky, which considers what would have happened if Hitler had escaped to the moon. But evading capture is not the same thing as “getting away with it,” and when one considers the relative sparseness of the universe, a space-escape seems more like a self-imposed exile than a genius escape plan.

The law’s treatment of crimes committed in space is more complicated. Countries do not have unlimited authority when it comes to criminal law. Instead, a country’s power is principally limited by geography. Generally speaking, countries only punish crimes that take place within their borders. For example, if a person commits a murder in Canada, he would not be prosecuted by the United States. This concept is called territorial jurisdiction. Here’s where things get interesting. As a matter of international law, space does not fall within any country’s borders. In 1967, the United States, the United Kingdom, and the Soviet Union entered into the Outer Space Treaty, which states that no nation may lay claim to space or to any celestial body. The treaty is still in effect and has been ratified by 109 countries.

At first glance, this suggests that no country can prosecute space crimes. That would be true, except that there are a few other bases on which countries can rely to exercise jurisdiction over criminals. For one thing, countries can prosecute crimes against the state (for example, treason or espionage) regardless of where those crimes take place. Similarly, countries have universal jurisdiction over pirates, who are viewed as an “enemy of mankind.”

There are two other principles that countries can use to exercise jurisdiction over crimes that take place outside their borders. First, countries can exercise jurisdiction over vehicles that are in transit and whose journey started in their territory. At first, this jurisdiction only applied to ships that were navigating international waters (in fact, for a time, there was no way to prosecute crimes committed on commercial flights flying over international waters). Eventually, however, the rules were expanded to cover air travel, and, later, space travel. As it stands, United States territorial jurisdiction extends to “any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the (Space Treaty) while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation…”

This extension of territorial jurisdiction has two obvious loopholes. First, it only applies to vehicles that are properly registered. This means jurisdiction would not extend to spaceships that launch without obtaining the appropriate administrative approval. (Watch out, space tourists!) Second, the jurisdictional provision only applies to the vehicle itself and would not cover any actions that take place outside the vehicle — such as in space, on the moon, or on any other celestial body. As it turns out, the second loophole is no loophole at all, since another provision of the statute extends jurisdiction to “any place outside the jurisdiction of any nation with respect to an offense by or against any national of the United States.” That provision was added after a man committed homicide on an arctic glacier, leaving the courts stymied as to whether a citizen could be prosecuted for arctic crime. Nevertheless, that jurisdictional clause has never been challenged and might not withstand scrutiny since, paradoxically, the statute extends jurisdiction only to locations that are outside of its jurisdiction.

legality prosecute outer space crimes space law ISS spaceships moon

Countries can also expand their jurisdiction using treaties and other international agreements. Of particular relevance is the ISS Intergovernmental Agreement, which describes how criminal jurisdiction works on the International Space Station (ISS). According to the treaty, each of the participating nations (Japan, Russia, the United States, Canada, and Europe) may exercise criminal jurisdiction “over personnel in or on any flight element who are their respective nationals.” In other words, the United States has jurisdiction over United States citizens, Canada has jurisdiction over Canadian citizens, and so on. This means that the space station cannot serve as a refuge to criminals.

When all is said and done, we see that for United States citizens, space does not provide much protection from criminal prosecution. United States criminal jurisdiction clearly extends to the international space station and to registered spaceships traveling to or from Earth. The only open question is whether jurisdiction covers crimes that take place on celestial bodies, in open space, or in unregistered spaceships. While the law purports to extend jurisdiction to those activities, it is unclear if the jurisdiction-providing statute would hold up if challenged.

It is often said that dreamers should shoot for the moon in the hopes of landing among the stars. But as we’ve just learned, that’s a recipe for disaster — homicide is just as illegal on the moon as it is on Earth, and the illegal discharge of a firearm is more likely to land you in jail than among the stars.

Adam Adler
Adam Adler is a lawyer, comic book fan, and stand-up comedian based in Washington, D.C. Feel free to contact Adam via e-mail at [email protected]

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