Between 1998 and 1999 the Russian Institute of Biomedical Problems carried out the most prominent study on the effects that Outer Space has on human behaviour. The subjects of the study were a crew composed of seven Russian and Japanese males and one Canadian female, who spent 110 days on a Mir replica — the first modular space station owned by Russia. Episodes of battery, assault, attempted murder and sexual harassment occurred on board, confirming that the state of isolation imposed by outer space has a strong effect on human behaviour [1].

Considering the limited volume of human activity in outer space, why should this be of increasing concern? The study is significant because a strong commercial interest has arisen in outer space, given by new developments, which suggests that human activity in space will start growing at a steady pace.

Recent studies by Larry Page’s Planetary Resources forecasted a high presence of platinum and other valuable metals and minerals on asteroids and other celestial bodies [2]. This presents a considerable potential in economical terms that becomes even more attractive and viable for investors due to the increasingly lower expenses of space exploration. For example, on December 2015 SpaceX was able to cut down the total price for the launch of their Flacon9 type rocket by 70%, which is representative of how cost-efficient space ventures may become [3].

According to Elon Musk “when Henry Ford made cheap, reliable cars people said, "Nah, what’s wrong with a horse?" That was a huge bet he [Ford] made, and it worked. [4]. Whilst outer space exploration may be regarded as a field for visionaries, if not dreamers, and it may represent a very big gamble, the presence of important corporations established by successful entrepreneurs, such as Musk and Google’s co-founder Page, seems to provide a solid ground on which to forecast the establishment of such a thriving market, and with it the growth of human activities and presence in outer space.

Accordingly, considering such a growth and the effect that this harsh environment has on individuals, one can induce the need for a clear body of law able to govern potential space crimes.

The next natural step in this analysis is to consider the existing legal framework dealing with space, and no other authority is more important than the Outer Space Treaty (1967). Defined by F. von der Dunk, one of the main experts on Space Law, as the ‘Magna Charta’ for outer space, the ‘Outer Space Treaty’ represents the first agreement dedicated to space activities and it outlines the main principles governing this field [5]. The main provision of this treaty is so important that it is even quoted by the main character in the recent blockbuster ‘The Martian' [6]: “outer space is not subject to national appropriation by claim of sovereignty, by means of use, or by other means” [7].

From the existence of such a treaty provision, one could assume that potential developments in outer space exploration driven by commercial interests may be nothing but a pipe dream. Nevertheless, as explained by F. von der Dunk, the treaty was signed during the Cold War by the USSR and the USA, presumably in order to prevent outer space from becoming an additional battleground [8]. Most of the positive developments in space exploration were triggered by this struggle for supremacy; however, this resulted in considerable costs and repercussions on the economy of the two superpowers. Therefore, it could also be inferred that such a treaty came into existence to prevent further waste of capital and drawbacks on both economies.

However, these new resources may now represent a viable solution to the economic struggle of recent years and potentially provide a new set of opportunities. Recent legislation enacted by different jurisdictions supports this idea. The U.S. Commercial Space Launch Competitiveness Act (2015) would be one such example, as it provides the required regulatory framework for corporations whose aim is to invest and enter into this potential market [9].

While the Outer Space Treaty (1967) incorporates the main principles governing outer space activities, it fails to address possible criminal disputes. Although other treaties on outer space exist, they also fail to mention and cover criminal affairs.

Under the UN’s Committee for the Peaceful Uses on Outer Space, five treaties have been successfully signed, including the ‘Treaty on Outer Space’ (1967). They cover matters such as the liability of signatory States for damages caused by their space vehicles, their obligations in regards to the rescue of astronauts and provisions on the mandatory registration of objects launched into Outer Space [10]. While none of these treaties provides for a specific legal framework for crimes committed in space, one of them, the ‘Convention on Registration of Objects Launched into Outer Space’ (1974) [11], could be interpreted so as to allow international law principles to apply. According to F. von der Dunk, jurisdiction could be assigned to the state that has registered the space object in question, as is custom under the “flag of convenience” principle for regular aircrafts and ships.

Article VIII of the ‘Convention on Registration of Objects Launched into Outer Space’ (1974) provides that the state of registration of the vessel “shall retain jurisdiction and control” over it [12]. This could be broadly interpreted to include crimes, thus providing a viable solution. As a space object is required under the treaty to be registered in a state in order to be legally launched, in the event of a crime, the national courts of that state would adjudicate on the matter, applying national law through its procedural processes.

However, such an international law principle would not be capable of providing the flawless body of law for space crimes that is clearly necessary. If a crime was committed outside the registered space object while astronauts were collecting minerals off an asteroid the state of registry would not be able to claim jurisdiction over the crime in question since the incident would have occurred outside the space object.

In order to determine the jurisdiction for a crime committed in a place free from state appropriation, two other international law principles may be employed; namely, the nationality principle, where a State can claim jurisdiction for crimes committed by its nationals [13] and the Passive Personality principle, under which a State may request jurisdiction where one of its citizens has been the victim of a crime committed by foreign individuals [14]. However, these principles clash and their application would lead to different results.

Consequently, interpreting these treaties in a manner that allows for the use of international law principles renders the legal framework surrounding outer space exploration highly complex and uncertain. In addition, the juxtaposition between these different principles may be capable of creating considerable frictions between states. Questions of jurisdiction are very challenging to address because of their political nature. A recent example is given by the Enrica Lexie case, where two Italian marines mistakenly killed two Indian fishermen, assuming they were pirates, generating diplomatic fallouts between Italy and India.

Nevertheless, international law principles have already been considered and employed for outer space activities. States have agreed to employ the nationality principle for crimes committed on the International Space Station (ISS) [15]. Therefore states would retain jurisdiction over crimes committed by their nationals. While this may suggest that international law principles are in fact a concrete option for the governance of possible space crimes, the effectiveness of the arrangement has yet to be tested, as no crimes have been committed in outer space since the introduction of this agreement. In addition, as states have retained the right to invoke the passive personality principle in the event of unsatisfactory trials, the agreement is not completely free from possible frictions generated by potential debates as to who shall eventually exercise jurisdiction.

Therefore, at least in principle, an ideal body for the governance of space crimes should not only be capable of addressing crimes in virtually any possible occurrence, including the example of ‘space miners’ on an asteroid, but also one that is capable of bypassing jurisdictional issues between states.

Although it has never been employed for such a purpose, the International Criminal Court (ICC) embodies a suitable option, as it is able to potentially satisfy both requirements. Set up by the Rome Statute in 2002, the ICC is the first permanent international criminal court ever established [16]. While at present its jurisdiction deals exclusively with the most serious type of crimes, this establishment proves that cooperation between states on matters of criminal law is possible. Therefore, this may be the most feasible solution. By delegating further powers to such an independent court, political tensions arising from matters of jurisdiction may be avoided. Additionally, by delegating such powers through a treaty, states would be able to retain their sovereign rights, as in the event of dissatisfaction they may ‘sign off’ at any time.

In conclusion, when considering the likelihood of human involvement in outer space stemming from the growth of commercial interest in its resources, one can appreciate the importance of creating a solid legal framework capable of covering this new area. While there are a few viable alternatives, the delegation of further powers to the ICC or the establishment of a new neutral criminal court seem to be the most desirable of options as they avoid questions of jurisdiction. This would also bypass the uncertainty given by the juxtaposition of different principles and laws, leading to a clear and certain authority able to legitimately govern criminal activities in space.

[1]www.erces.com/journal/articles/archives/volume2/v02/v03.htm

[2]www.planetaryresources.com/asteroids/market-for-metals/

[3] www.economist.com/news/science-and-technology/21684562-elon-musks-early-christmas-present-himselfand-worldis-reusable

[4] April 22, 2003, speaking to the Los Angeles Time

[5] F. von der Dunk & M. Brus, 2006, The International Space Station: Commercial Utilisation from a European Legal Perspective — Volume 1 of Studies on Space Law, Martinous Nijhoff Publishers, p. 16

[6] The Martian, directed by Ridley Scott, based on the book of Andy Weir; 20th Century Fox.

[7] www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html

[8] http://news.unl.edu/newsrooms/unltoday/article/how-realistic-is-the-martian-unl-experts-weigh-in/

[9] www.techtimes.com/articles/111534/20151128/u-s-space-mining-law-is-potentially-dangerous-and-illegal-how-asteroid-mining-act-may-violate-international-treaty.htm

[10] www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliability-convention.html ; www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introrescueagreement.html ; www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introregistration-convention.html.

[11] www.unoosa.org/pdf/publications/ST_SPACE_061Rev01E.pdf

[12] see footnote 11

[13] Earl Russel’s Case (UK) 1901

[14] US v Yunis 1991

[15] http://www.esa.int/Our_Activities/Human_Spaceflight/International_Space_Station/International_Space_Station_legal_framework

[16] https://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx

by Omri Bouton,

Copyright assigned to CULSU Law Society.

Published with the permission of CULSU Law Society.