Photo Credits: Maxim Babenko for The New York Times
Anne McClain, a 41-year-old Astronaut, has been accused of accessing her estranged spouse’s bank account through the internet while onboard the International Space Station (Baker). Her spouse, Summer Worden, a former intelligence officer for the United States Air Force and Intelligence Community, has filed numerous complaints about the issue at hand. Although McClain has denied these allegations, it has raised the question: what happens when you break a law in space?
The short answer to this question is that the US criminal jurisdiction applies to any and all US astronauts with an alleged US victim. However, the long answer is estimated to become even more complicated with the advent of space militarisation, commercial activity, as well as space tourism.
With over 50 nations currently engaged in space activities, there has been a significant increase in human activity in space, which is why this issue at hand has caused a lot of controversy amongst people. Although space is considered res communis, meaning that it belongs to no-one or any country, there are still certain national laws that apply to space.
Which raises the question: How does space laws work?
International laws allow each country to assert its own jurisdictions outside of its territory in several different ways (Ireland-Piper). Examples include the national principle, which covers crimes citizens committed outside their countries’ borders, as well as the universality principle, meaning that the national court is able to prosecute anyone for serious crimes against international law such as genocide and war crimes.
Space is governed by five key international treaties, also known as the Outer Space Treaty, the Registration Convention, the Moon Agreement, the Liability Convention, and more (Ireland-Piper). Essentially, this treaty requires the use of outer space to be free in the interest of any and all countries and not subject to any claim of national sovereignty. This means nations would be responsible for liable damage caused by their activities that the moon or any other planet is to be used only for peaceful purposes.
Who is responsible for prosecuting space crimes?
Whenever someone commits a space crime, they would generally have to follow the law of the country of which they are a registered citizen as well as the country of the spacecraft. This is because the country’s authority would be granted from the treaty "over any personnel thereof" (Ireland-Piper). The term ‘personnel’, however, is not defined which may create complications for private citizens that are from a different country than where the spacecraft was registered from.
As for the situation regarding McClain, the US criminal law will be applied to her conduct as she is reportedly a US citizen. This is known as the "active-nationality" jurisdiction.
The other type of jurisdiction is known as the "passive-nationality" jurisdiction. This is when the victim of the committed crime on the ISS is a citizen of a different partner nation. In this jurisdiction, there is a possibility that criminal law may apply if the crime took place in a partner nation’s section of the space station (Ireland-Piper).