Crimes in Spacecraft – A New Dimension in Criminality?
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All civilizations become either spacefaring or extinct… Carl Sagan, Pale Blue Dot
( September 10, 2018, Montreal, Sri Lanka Guardian) Recently, astronauts in the International Space Station (ISS) discovered a leak of approximately 1.5 millimetres in the Soyuz capsule on the Russian side of the ISS. While some ascribed the leak to a crash of a micro meteorite on the capsule, there were reports in the media that the Russians were suggesting an act of sabotage committed by one of the astronauts. The cause remains undetermined but under investigation.
Although there have been some instances in the past where conduct in outer space has been the focus – such as when NASA discussed in the 1970s whether Skylab’s crew should be given small quotas of wine to be taken with them on their sojourn to space – which was abruptly dropped in response to public outrage – the closest we could come to crimes in space was in Ian Flemings book You Only Live Twice (later made into a blockbuster James Bond movie) which started with the mysterious disappearance of Russian and American spacecraft in orbit – attributed to a fictional terrorist organization called SPECTRE.
About the same time the international community came up with the Outer Space Treaty (1967) which declared that the use of space should be the heritage of humankind and for peaceful purposes, – a principle in international law reiterated in the 1996 Declaration on International Cooperation that space is the “province of all mankind”. Tis recognition gave added impetus to the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) established by the General Assembly in 1959.
Times are different now. We are at the cusp of regular space transport in an age where a dedicated group of billionaire entrepreneurs comprised of intrepid adventurers such as Elon Musk, Jeff Bezos and Richard Branson are in full sway, using Silicon Valley type technology to make space tourism a reality and the colonization of extra terrestrial property a distinct possibility. Christian Davenport, in his book The Space Barons, aptly notes: “Bezos was five when he watched Armstrong walk on the moon. Musk had not yet been born. But with their massive fortunes and ambition, they were re-enacting the Cold War space race, a pair of space barons starring in the roles of nations, hoping to pick up where Apollo had left off more than a generation earlier. Their race to the stars was not driven by war or politics; rather by money and ego and adventure, a chance to extend humanity out into space for good”.
This brings to bear the compelling need for us to consider that one of the consequences of prolific space travel in the future would be adverse human conduct, in a manner similar to unruly passenger conduct in air travel. However, before we consider adoption of rules of conduct for spacefarers we must evaluate what we already have in place, if any. Taken from a socio-legal perspective, space tourism brings to bear unique considerations, from the status of the space tourist to the conduct expected of such a person and the various liability regimes that might be required to address the “package deal” concerning the contract of carriage to outer space and amenities provided by the service provider. Additionally, real concerns of liability, insurance coverage and risk management would have to be allayed before a sustained space tourism programme takes to the heavens.
Freedom of outer space, which lays the foundation for conduct of persons in outer space, is enshrined in Article 1 of the Outer Space Treaty, which stipulates that the exploration and use of outer space, including the moon and other celestial bodies, must be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. The provision also requires outer space to be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law. Finally, the provision grants free access to all States in relation to all areas of celestial bodies.
Under Space Law, there is no such being as a “person” in outer space. There are only astronauts and personnel. The Outer Space Treaty stipulates that State parties to the Treaty must regard astronauts as envoys of mankind in outer space and render to them all possible assistance in the event of accident, distress or emergency landing on the territory of another State party or on the high seas. The provision also requires State parties to return astronauts under the above circumstances safely and promptly to the State of registry of their space vehicle.
Jurisdictionally, any person comes clearly within the purview of the State on whose territory he is or above whose territory and in the airspace of the State concerned, if he is in an aircraft. Generally, in outer space, this status quo changes, and astronauts become liable under the laws of the State of registry or the State which launches their spacecraft for travel and work in outer space. This is brought to bear by Article VIII of the Outer Space Treaty which provides that a State party to the Treaty on whose registry an object launched into outer space is carried must retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.
However, the interpretation of Article VIII could well result in ambivalence and confusion. The “object” and “personnel” referred to in the Treaty provision do not adequately cover persons who are not “personnel” such as passengers in a spacecraft. Of course, the quasi jurisdiction of the State of registry of the spacecraft can apply both in the instance of conduct in the spacecraft as well as outside the spacecraft on the basis that the astronaut concerned would always be deemed to belong to the spacecraft in outer space. Logically, therefore, such jurisdiction could be imputed to passengers, visitors and guests by linking them to the spacecraft in which they travelled. This far reaching generalization would then cover the conduct of an astronaut or other persons while walking on the moon, Mars or other celestial body, as well as such persons who go on space walks outside the spacecraft in which they travelled.
Another provision which sheds some light on past attempts by the international community to identify liability and jurisdictional issues relating to astronauts is Article 12 of the Moon Treaty of 1979 which provides that States Parties must retain jurisdiction and control over their personnel, space vehicles, equipment facilities, stations and installations on the moon…
It is presumed that the legal link between the personnel and the spacecraft they travel in under the circumstances are imputed to the State of registry of the said craft. If this were not the case, and such a link cannot be established, the provision itself becomes meaningless and destitute of effect.
The above provisions, although seemingly adequate for an incipient world space programme, do not adequately address modern exigencies of outer space activity such as collaboration in space stations where repair missions and salvage activities may call for multinational crews, joint space exploration calling for multiple space technology, and transportation to outer space of passengers.
The recognition that the scope of manned space flight is being expanded from the flight of astronauts to other persons such as repair crew and passengers, is becoming evident. In an attempt in 1988 at drafting a Convention on manned space flight, a team of draftsmen comprising a distinguished cluster of experts in space law from Germany, the Russian Federation and the United States succeeded in a sustained attempt at producing a draft legal instrument which covered certain exigencies of personal conduct in space travel. The most significant thrust of this draft Convention is that it blends harmoniously the essential qualities of scholarship and practicality. The draft Convention was published to draw the attention of the world community of space lawyers and seek comments. It effectively conveyed the fundamental postulate that manned space flight is the cornerstone of exploration of outer space and therefore its development requires guidelines on international cooperation and liability.
The draft Convention, in Article III links itself to the Outer Space Treaty principle of awarding jurisdiction in relation to a manned space object and person therein to the State of registry in relation to occurrences in outer space or in a celestial body or on or in the high seas or any other place beyond the jurisdiction of any State. Article IV of the draft Convention devolves responsibility and authority over a manned space flight, the space object involved in such flight and all persons on board, on the commander of the space object. The commander is given sole authority throughout the flight to use any reasonable and necessary means to achieve this end. The same provision makes both the commander and all members of the crew answerable to a person identified as the Director of Manned Space Flight Operations, who is defined by the draft Convention as a person who is designated by the State exercising jurisdiction and control over the space object to oversee a particular manned space flight. By this measure, the draft Convention skilfully and unequivocally identifies the chain of command, giving the commander absolute authority on the spot over all those in the space object during the flight, while making him answerable to a person designated as Director of Manned Space Flight Operations, who presumably will be on ground and in mission control.
The draft Convention also ensures safety of persons involved in a manned space flight whether they be crew, passengers or any other category of persons affected by such flight. One of the strengths of the draft Convention is its provision with regard to environmental pollution or other harm caused to the environment by a manned space flight, where the instrument lays responsibility on States whose manned space exploration may jeopardise an existing environmental balance. It also provides for assistance to be given by persons in a manned space flight to others in distress in outer space and prescribes international responsibility on States, whether the space flights in question are carried out by governmental or non-governmental entities.
Outer space and celestial bodies can be used for the common heritage of mankind but are res extra commercium like the high seas. However, here the distinction ends, in that unlike the high seas, which can be appropriated in certain circumstances, such as through acquiescence by one State of appropriation of an area of the high seas by another, outer space or celestial bodies cannot be appropriated under any circumstances. It is not possible to apply the principle of appropriation to the conduct of crews of other persons in outer space. One cannot establish a pattern of conduct as a prescriptive right in outer space because there are no territorial limits demarcated by and between individual States in outer space. A fortiori, outer space has been identified as one composite area which cannot be appropriated by one State to the exclusion of others by Treaty provision.
Criminal conduct is an area where the principle of international law applicable to the High Seas lend themselves as a useful analogy to space law. Of course, the offence of piracy cannot be committed by astronauts who are sent to outer space in spacecraft belonging to a State. The offence must be committed for private ends by persons in a private ship or craft. The offence of piracy in the high seas would nonetheless apply as an analogy to a similar offence committed by private individuals in outer space who do not represent a State as official crew members. This would cover the improbably but nonetheless possible events of the future such as a mutiny on board a commercial spacecraft carrying passengers (which is an analogy derived from shipping law). Piracy in outer space may also occur in instances where personnel of a space craft could act on the orders of a recognized government which is in gross breach of international law and which show a criminal disregard for human life.
Since outer space has no jurisdictional application, crimes on board spacecraft which are in outer space at the time of commitment of the crime, must be linked to the State in which the spacecraft in question is registered and consequently to the criminal laws applicable in that State. In this context, the principle enunciated in the 1906 case Mortensen v. Peters, where the captain of a fishing vessel was successfully prosecuted under the Scottish Herring Fisheries Act which applied to an offence committed in the high seas, should apply. As Lord Dunedin, Lord justice General said, the court was bound to give effect to the terms of legislation passed by the Lords, if the legislation explicitly prescribed punitive measures against an offence, irrespective of where it was committed.
That we have to be spacefaring is incontrovertible. As Stephen Hawking, the celebrated theoretical physicist, said in 2001: “I don’t think the human race will survive the next thousand years, unless we spread into space. There are too many accidents that can befall life on a single planet. But I’m an optimist. We will reach out to the stars”.
However, we had better be prepared with perspicacious clarity as to the legal ramifications of such an exigency.
The author has published numerous books on aerospace law, among which are Frontiers of Aerospace Law (Ashgate) and Space Security Law (Springer). He is former Senior Legal Officer at the International Civil Aviation Organization and is currently a Senior Associate at Aviation Strategies International.