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.
by Dr Ruwantissa Abeyratne
Writing from Montreal
It has been reported that The National Aeronautics and Space Administration (NASA) is investigating an alleged crime – the first reported from the the International Space Station (ISS) - by one of the personnel on board who accessed the bank account of her estranged spouse while on mission in ISS. ISS is defined as “a co-operative programme between Europe, the United States, Russia, Canada, and Japan for the joint development, operation and utilisation of a permanently inhabited Space Station in low Earth orbit. The legal framework defines the rights and obligations of each of the countries and their jurisdiction and control with respect to their Space Station elements”.
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ISS is driven by a legal framework within the purview of what is called The International Space Station Intergovernmental Agreement, otherwise known as 'the IGA'. IGA was signed on 29 January 1998 by the fifteen governments involved in the Space Station project. Article 1 of this treaty provides that it is based on “a long term international co-operative frame-work on the basis of genuine partnership, for the detailed design, development, operation, and utilisation of a permanently inhabited civil Space Station for peaceful purposes, in accordance with international law”.
Article 5 of IGA allows the Space Station Partners States to extend their national jurisdiction in ISS, stating that “'each partner shall retain jurisdiction and control over the elements it registers and over personnel in or on the Space Station who are its nationals'”. This incontrovertibly vests jurisdiction on The United States of which the astronaut concerned is a citizen.
The IGA is implemented through four Memoranda of Understandings (MoUs) between NASA and each co-operating Space Agency: European Space Agency (ESA), Canadian Space Agency (CSA), Russian Federal Space Agency (Roscosmos), and Japan Aerospace Exploration Agency (JAXA). Canada has promulgated its own legislation called Civil International Space Station Agreement Implementation Act of 1999. However, the author could not find evidence of any such legislation or instrument of ratification by the United States in addition to IGA and the four MoUs.
It is assumed that such instruments exist or that the aforementioned documents would suffice under United States law if the authorities pursue action against the astronaut. Clearly, the person suspected of the offence is not an astronaut by definition. Liability of an astronaut is based on the accepted legal premise that astronauts, by virtue of the Outer Space Treaty of 1967 are designated as “envoys of mankind in outer space”, casting on them the responsibility of adhering to applicable treaty provisions on behalf of their States. The Treaty provision is a reproduction verbatim of Paragraph 9 of United Nations General Assembly Resolution XVIII of 1962. Although initially, the world’s “envoys of mankind” seemingly created some apprehension in the international community as to whether such phraseology connoted diplomatic immunity to astronauts, academics have cleared up this ambivalence by concluding that it was only a figure of speech which has not been repeated in any United Nation’s documentation yet. The perceived inadequacy of definitive identification at international law of an astronaut and her conduct in outer space leaves one with the realization that IGA and its legal regal regime has decidedly and effectively precluded any room for doubt by the use of “personnel” instead of “astronaut” in Article 5 of IGA
The above facts leave one with a dichotomy: If astronauts are defined as “envoys of mankind in outer space”, what is “outer space”? In an earlier article in this journal I grappled with the numerous theories that have been propounded in the absence of a definition of outer space. Confusion is worse confounded by the fact that the ISS is orbiting the earth at an altitude of about 400 kilometers which puts it right inside the thermosphere which is the layer of the Earth's atmosphere directly above the mesosphere and directly below the exosphere. Therefore, it may be argued that ISS is not in outer space, in which case the person faced with criminal charges in the context of this article could not be called an astronaut by definition.
Therefore, it is arguable that this is not a crime in space. The fact that a separate legal regime in the form of IGA exists to address legal issues concerning IGA is evidence enough. For outer space a separate regime under the Article VIII of the Outer Space Treaty of 1967 exists which provides that 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.
As a side note, it must be noted that the first “space tourist” Denis Tito was called a space tourist for purposes of public reference by the media. He was called a “guest cosmonaut” by the Russians and an amateur astronaut by the Americans. 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, as some maintain, 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 be deemed to belong to the spacecraft at all times 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 shall 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.
All this is obviated under IGA.
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