The author of this blog is Sri Hari Mangalam, who is a law student at the West Bengal National University of Juridical Sciences. He is currently in his first year of a five-year integrative BA LLB course.
The fascination we have with space, what the Star Wars franchise capitalizes on, is deeply related to the indeterminacy surrounding it. The major reason behind most enthusiasts’ obsession with space is the primordial lack of information; the scope within the particular field allows for the expansive lengths of human imagination to be set free. Indeterminacy may work for fiction; regardless, it has no place in the sphere of law. The more we advance into the unknown field of planetary studies, the more there is a need for regulations. The rather possible introduction of space-tourism, space-commercialization, and even militarization call for, at the least, a basic analysis of the existing regulations on criminal acts in space and what the future holds for space laws. Outer space and planetary movement are very real possibilities for humans, and this feature ties to analyze the set of regulations available to streamline all possible actions of the human race in outer space.
The first alleged criminal act carried out in space, may not be as gruesome as a homicide; nevertheless, was serious enough to incite an informed debate. NASA’s astronaut Ms. Anne McClain was accused by her former spouse for accessing his bank account details via the internet while she was on board the International Space Station (ISS). Though Ms. McClain has repeatedly declined the allegations and NASA is still conducting their investigations; the particular incident gives us enough fodder to probe into the field of space charters.
Outer-space, much like the High Seas, is considered res communis omnium- A thing of the entire community. In Layman terms, Space does not belong to a particular country or entity and nor can anyone lay claim to it. As a result, the laws pertaining to space legislation are largely left open to interpretations. However, this doesn’t mean that sectional laws aren’t applicable. For instance, the Anne McClain incident involved an American astronaut and an American alleged aggrieved, with the act committed aboard the ISS, therefore American jurisdiction was held applicable. The ‘nationality principle’ here, is what gave the United States jurisdiction over the incident i.e., Control over a citizen’s acts outside the country’s borders. The majority of space law rules currently, are closely linked with the offender's nationality, with the major legal provisions of a nation in question held applicable depending on which country the space vessel is registered with. The two basic features for space laws, essentially form on the basis of which country the accused astronaut is a national of, and which space station lay’s claim to the accused’s shuttle.
Apart from the ‘Nationality Principle’ and the ‘Universality Principle’ that works on similar parameters, there a few international treatises for regulating space as well. The Outer-Space Treaty, amongst the many, is the key agreement for space crimes. The treaty deviates certain norms for conduct in Space and situates liability on countries for any acts which may endanger space bodies. It also imbibes a ‘personnel principle’ i.e., it gives jurisdictional control of the spacefaring criminal, as earlier mentioned, to the country which the offender identifies with or to the nation with which the shuttle is registered. For instance, an astronaut from France commits a crime in space, the decision on which countries' legislative principles will be used to promulgate liability will be greatly influenced by his nationality, only to be cross-checked with his space shuttles registration.
The International Space Station also has an intergovernmental agreement under which the agreeing nations have subscribed to the idea of differentiated jurisdictions again depending upon factors of nationality, registration, and mode of commute. According to the Intergovernmental governmental agreement, an act committed aboard the International Space Station will be governed via the particular the treaty, and all or any liability imposed will form a part of the jurisdiction as agreed upon by the member states of the ISS. The intergovernmental treaty is the only agreement in coherence with the International Space Station, that even remotely considers the possibility and need for legislative rules in outer space.
The scope of space regulations is largely limited to the two aforementioned principles, which in the current scenario may seem adequate; nevertheless, with the impending increase in traffic, the small set of rules may turn out to be gravely deficient. The nation-based implementation of jurisdictions might work when its as simple a case as McCain where all involved parties were of American origin. However, in a scenario where the astronaut is from one country, the aggrieved from another and the shuttle's registered with some other nation; what jurisdiction will be applied creates a huge dilemma. Whether the astronaut’s nationality will be preferred, as he/she is the one who allegedly committed the act or whether the space shuttle’s registration will be given more weightage, as that is the alleged place of the crime? There is no mediation principle for the space to negotiate an arrangement between nations, and a scenario as such will create major logistical problems, allowing ways for the accused to make arguments that won’t be acceptable on land. Another problem with the lack of specific regulations is that, there is no deviating legal-line between where space starts and the earth’s atmosphere ends. A criminal act committed, let’s say in a shuttle which is still in the stratosphere, the rules of law applicable for an act as such are not differentiated and there is no clarity as to how liability shall be imposed. If the space charters will be applied in the particular scenario or if aviation laws will be followed?
The legislative indeterminacy has not yet created many issues in space. However, with an increase in commuting traffic in the coming years and the possible planetary movement of life, a comprehensive set of both criminal as well as civil rules is the current need. A set of comprehensive rules, which don’t just differentiate between the varied spheres of human movement in space; but also negate the possibility of any individual actions that qualify as anti-social according to basic human rights and comprehension. The Outer space has a lot of scope for development, and even more so for human interference; however, without the availability of a concrete set of rules, the same feature of development may turn into a complete risk for human lives. A society without a basic but specifically defined regulations, seems cohesively incomplete, similarly outer space, which will become a much larger factor for human movement in coming years will be an indeterminate social circle if concrete rules are not made to govern it. Indeterminacy may add some imaginative flavor to our mundane lives; but Legal provisions keep the force with us.
 The New York Times, NASA Astronaut Anne McClain Accused by Spouse of Crime in Space, August 23, 2019, available at https://www.nytimes.com/2019/08/23/us/nasa-astronaut-annemcclain.htmlstatements/articleshow/75056403.cms
 Space Legal Issues, The Res Communis concept in space law, February 28,2019, available at https://www.spacelegalissues.com/space-law-the-res-communis-concept-in-space-law/
 The Print, Nasa is Facing its first Space Crime, September 1, 2019, available at https://theprint.in/science/nasa-is-facing-its-first-space-crime-so-what-happens-if-you-commit-a-crime-in-space/284410/
 United Nations office for Outer Space, Outer Space treaty, available at https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html
 United Nations Office for Outer Space Affairs, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, available at https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html