Say an astronaut gets space fever and murders a crew mate. Is it still murder? Also, in a Cafe Society thread someone mentioned that
Would that be an act of war?
Well, if Luna 15 had hit the LEM, possibly so. As noted in Wikipedia, it crashed 344 miles away from the Apollo landing zone. And, Wikipedia also notes that:
There’s legal precedent for governments to have jurisdiction over what their citizens do even outside of their own nation’s soil, so I imagine that power would extend to space.
It’s not the location of a crime that determines whether it’s a crime, it’s the citizenship of what country you are. South Korea, for instance, has been known to prosecute South Korean citizens who use illicit drugs even when that drug use took place in another nation.
Citizenship of the perpetrator, citizenship of the victim, registration of the ship, could all be used by various countries to claim jurisdiction.
I think if you commit a crime at sea (in international waters) the laws of the country the ship is registered to apply (if in port the country the port is in laws apply). Although I suspect that country would just send most people back to their home country to be prosecuted. I doubt they want to pay to prosecute and jail someone on a cruise ship.
I’d think the same would happen on the moon ship.
The “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”, also known as the Outer Space Treaty of 1967 has the following to provision:
ARTICLE VI
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.
This implies that states are responsible for and are assigned jurisdiction over both government agencies and “non-governmental entities”, i.e. commercial interests and individuals operating under the aegis of that nation. There are a number of states that have signed but not ratified the treaty, and even more than have not signed it, and although that would seem to be an academic matter it is entirely conceivable that a commercial space entity could register to operate under the flag of São Tomé and Príncipe and then do as they wish with little means by the nation to impose any legal authority even if they were so inclined. The Treaty does not address fully autonomous entities operating outside of Westphalian sovereignties so nobody is responsible for space pirates and members of the Outer Planets Alliance or the Jovian Republic, nor are their any UN provision for enforcement upon states other than applying meaningless resolutions or call for sanctions.
As for one nation deliberately attacking another nation’s mission, whether that is a crime in space is kind of immaterial next to the fact that it would serve as a pretext for war on Earth. With all of the current revitalized interest in conflict and warfare on space I’ve been catching up on various books and opinions which have come out in the last five years and it is disappointing to see that despite all of the cautions about the devastating effects that a kinetic conflict in Earth orbit might have just in access to and commercial use of orbital space alone (notwithstanding the flotilla of junk being sent up to facilitate internet communications with little concern to a potential Kessler cascade), the United States, Russia, China and others are pressing forward with plans to put active warfare devices in orbit and deploy anti-satellite weapons. So it goes.
Stranger
If it’s a Canadian travelling to, from or in, either the Space Station or the Lunar Gateway, and commits an act that would be an indictable offence in Canada, they can be prosecuted in Canada under the Criminal Code.
If it’s a national of another country who commits an action on a flight to or from the Space Station, or at the Space Station, or the Lunar Gateway, against a Canadian citizen, which would be an offence if committed in Canada, then they could be prosecuted in Canada under the Criminal Code.
See Criminal Code, s. 7(2.3), (2.31),(2.35) and (2.36).
@Stranger_On_A_Train is right. This is governed by the Outer Space Treaty (pdf here) of 1966, which says that jurisdiction over what happens on an object in outer space or on a celestial body lies with the country that launched the object. The nationality of the person is irrelevant (although it will usually coincide with the nationality of the launch state). FWIW, there’s an entire subfield of public international law called space law, but it’s an obscure discipline even within the generally somewhat obscure field of public international law.
Also note, as to the wording of the OP, that “an act of war” is not the same thing as a crime. “Act of war” relates to one country attacking another, in violation of the prohibition against the use of force in public international law; crime relates to the criminal liability of an individual.
What an intriguing question!
In the Bible (please no debates here…just talking about what the words say) there is a similar conundrum that flies under the radar for many folks.
In Genesis there is the story of how Cain famously (or infamously) killed his brother Abel. This happened way before Moses was given the ten commandments.
In other words, there was no tablet saying “Thou Shalt Not Kill” laying around anywhere.
But what he did was still wrong.
My point being that regardless of the unusual legal circumstances, the act would still be morally wrong by most definitions of what is acceptable behavior and I can’t imagine everyone simply wringing their hands and saying “But it happened on the moon…there’s not a thing that can be done!” The process of gathering facts and determining how to punish the individual would be interesting. I can imagine some strange twist like how they arrested Al Capone for income tax evasion.
I’d like to note that while the general principle (jurisdiction of the launch state) is clear, its application in practice can be complicated: The most likely venue where this may become relevant is the ISS, which is made up of a number of different modules docked together. Each module is under separate jurisdiction - some American, some Russian, and to my knowledge also some Japanese and Canadian. Each has its separate jurisdiction. There’s also the added complication of modules launched by the European Space Agency esa - esa launched them, but it’s an international organisation (not an EU agency!) of many European states, which have no common criminal law.
Hmm, How to crimes at sea work with a US registered vessel, Specifically 6th amendment “State and district wherein the crime shall have been committed” is that the state the vessel is registered in?
I assume it is something like that – and it would be similar for space.
Brian
Crime in space is one of those things that, were it ever to happen, a national authority is going to find SOME way of getting you. If you couldn’t justify charging people under the 1967 treaty, they’ll find a reason their jurisdiction applies to you anyway. If there is a hole in the law it will be swiftly plugged.
Historically the obvious parallel is enforcing laws at sea. There has never been a time that piracy was okay because you were in international waters. They have always been eager to hang pirates no matter what legal arguments about jurisdiction you made while being dragged to the gallows.
Nonetheless, among mortals, the operating principle is “There is no crime without an applicable law.”
So the question is not “is murder in space illegal” but rather “whose jurisdiction applies so that their law can criminalize that violent act”.
AFAIK, murder is a criminal act in the law of every nation capable of spaceflight, and the Outer Space Treaty assigns that jurisdiction.
I would say that the Outer Space treaty recognises that jurisdiction, not assigns it.
In countries that follow the dualist approach to international law (ie most common law countries), the treaty doesn’t have the effect of criminalising conduct under the law of those countries. It is still necessary for the country in question to pass a law criminalising the conduct for its own domestic law, as Canada has done.
How the treaty works for monist countries, I don’t know.
Enforcing is the relevant part here, I believe. It seems no coincidence that the jurisdictional waters were defined more or less as the reach of a cannon shot fired from land: once 3 miles, then 6 miles, 12…
As we are many years away from going to space and being able to stay there indefinitely enforcement seems easy: just wait until the suspect returns. Then charge him of a crime.
That’s a good distinction.
The key point is that currently, criminal law in space is domestic criminal law of the nation responsible for the spacecraft or facility which is the crime scene.
“Where” becomes “who”, just like on the ground.
“Nullum crimen sine lege” (also “Nulla poena sine lege”)
You have to have a law that applies prior to the conduct alleged to be criminal.
In a monist country, the treaty itself would be directly applicable within the domestic jurisdiction by virtue of being part of international law. This is, for instance, the situation in the Netherlands, a classically monist system.
Not necessarily that limited.
Canada ties its criminal law to nationality of the accused (if Canadian), or the nationality of the victim (if Canadian), as summarised earlier. The ownership of the spacecraft or facility is irrelevant.