Financial crime is a truly global issue. As readers of this blog would know, it often involves cross-border issues, and the laws of multiple jurisdictions can apply.
In this context, it perhaps unsurprising that the first alleged crime in outer space is connected to the financial system. As reported by the BBC, the US National Aeronautics and Space Administration is apparently investigating whether a US astronaut improperly accessed a bank account while on board the International Space Station (“ISS”).
The astronaut involved completely denies any wrongdoing. Nonetheless, it provides an interesting starting point to consider the exercise of criminal jurisdiction in space. Accordingly, this post sheds some light on the in’s and out’s of space criminal law.
Law, but not as we know it
We have previously written about the significant body of space law. In short, space is not the Wild West. Rather, a wide range of international instruments and national laws apply to space activities.
In the present case, the:
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”) provides the legal framework for space activities generally; and
- the Space Station Intergovernmental Agreement (“IGA”) provides the legal framework for the development and operation of the ISS specifically.
Together, these two instruments set out the rules for investigating – and if necessary prosecuting – allegations of misconduct on board the ISS.
With respect to criminal jurisdiction, Article 8 of the Outer Space Treaty provides that the state that registers a “space object” retains jurisdiction and control over that object “and over any personnel thereof”.
For example, if a crime is committed on board the Soyuz MS-12, a spacecraft registered by Russia, then Russia would have jurisdiction over that crime. Of course, other states may attempt to claim jurisdiction – particularly if one of their nationals was the victim or perpetrator. But under the Outer Space Treaty, location is key to determining jurisdiction.
But determining location on the ISS is complex. As the name suggests, it is a multi-national research facility. It comprises flight elements that are variously registered by the United States, Russia, Japan and the European Space Agency (Canada also participates in the ISS but has not registered any of pressurised modules that comprise the ISS’ habitable zones).
So, under the Outer Space Treaty, astronauts on the ISS traverse multiple jurisdictions as they pass through the various flight elements.
Impact of the IGA
Returning to the alleged crime at hand, the key question for Outer Space Treaty purposes is: where was the astronaut when the alleged bank account access occurred?
As the ISS has Wi-Fi, this could be quite a challenge.
And we must also consider the impact of the IGA. Article 5 of the IGA relevantly provides that each of the ISS partners will “retain jurisdiction and control over the elements it registers” in accordance with Article 8 of the Outer Space Treaty. But the IGA clarifies that, on the ISS:
“the exercise of such jurisdiction and control shall be subject to any relevant provisions of [the IGA].”
One such relevant provision is Article 22, which provides that each of the ISS partners may exercise
“criminal jurisdiction over personnel in or on any flight element who are their respective nationals.”
Accordingly, the IGA modifies the operation of the Outer Space Treaty such that nationality, rather than location, becomes the key determinant of criminal jurisdiction.
So, in the present case, the astronaut’s US nationality means that the United States has jurisdiction, regardless of where on board the ISS the astronaut was at the time of allegedly improper access.
In the present case, the jurisdictional issues are (relatively) easy to resolve. But they will not always be. In particular, if the alleged crime involved another state’s banking system, or if the victim was a national of an ISS partner state other than the US, then the jurisdictional questions could become substantially more complicated.
More generally, the increasing expansion of human and commercial activities into outer space means that financial systems are also coming along for the ride. Indeed, we are thinking about things like how to handle an on-orbit insolvency, and what spacecraft financing best practices will look like.