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Who has jurisdiction when crimes are committed in space?
The first alleged act of criminal conduct in outer space, which came to light in recent days, begs the question: what, and whose, laws apply?
Jerome Doraisamy
In conversation with Lawyers Weekly, Griffith Hack associate Dr Stefan Paterson said that the various treaties and conventions that make up space law mean that the registration of a space object in a national jurisdiction means that the nationality’s jurisdiction, including criminal jurisdiction, and control extends to that object in outer space and its personnel.
According to ABC, Lieutenant Colonel McClain is accused by her former partner of identity theft and a complaint was lodged with NASA and the US Federal Trade Commission.
The astronaut tweeted over the weekend that there was “unequivocally no truth” to the claims made against her.
When asked about the potential legal ramifications of this alleged crime, Dr Paterson said that Lieutenant Colonel McClain is a United States citizen, and thus, under the International Space Station Agreement, any crime committed in outer space by a US citizen would fall under American jurisdiction, just as if a crime had been committed on Earth in the US.
“This same scenario should also apply should a crime be committed onboard a space object, such as a spacecraft, that is registered in the US,” he explained.
“In this instance, the allegedly unlawful electronic access of a bank account onboard the ISS by a US national should not be any different to if the same bank account was unlawfully accessed on Earth in the US.”
He continued: “In the case of a joint endeavour for space activity, such as the ISS, the Registration Convention authorises each participating state to reach an agreement with the rest of the participating states for the application of a certain area of the law.”
“In the International Space Station Agreement, all partner states made use of this provision and agreed on a specific mechanism for the exercise of jurisdiction and control for, among others, criminal law. This means that the right to exercise criminal jurisdiction belongs, in principle, to the state of nationality of the perpetrator,” he said.
There likely aren’t too many lessons from this episode for Australian lawyers concerned with space law, Dr Paterson noted, because once it is clear in what jurisdiction the alleged crime has been committed, “the laws of that jurisdiction should apply as per normal”, he surmised.
“However, lawyers should have an appreciation of space laws and the associated mechanisms that can determine what jurisdiction has ‘control’, as in some instances, it is not always clear,” he added.
Australia is a signatory to the various treaties and conventions that govern space law, Dr Paterson reflected, and so the mechanisms to enforce Australian laws in space are already in place, much like other countries who are signatories to the various treaties and conventions that govern space law, he said.
“However, should Australia start its own space program and partner with other countries to send astronauts into space, the issues of jurisdictional control and how Australian law apply would need to be developed with, and agreed upon, by the other countries,” Dr Paterson concluded.
“Further, for any Australian-based private enterprise that carries out space-related activities and registers its space objects in Australia, under current mechanisms, the Australian government can be held accountable for any unlawful activities carried out by the private enterprise. The overlap of government accountability and private enterprise actions will likely require further consideration as the commercialisation of space increases.”
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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