“Canada, the European Partner States, Japan, Russia, and the United States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.”
— ISS Intergovernmental Agreement
“I’m going to be taking a craft over in international waters without permission, which by definition … makes me a pirate. Mark Watney: Space Pirate.”
— “The Martian,” Andy Weir
The media was abuzz this week with news that we may have seen the commission of the first crime in space. The facts are, frankly, not that salacious. American astronaut Anne McClain is accused of using a NASA computer on the International Space Station to access the bank account of her estranged spouse, Summer Worden. McClain says she used the access frequently, because it was an account they both utilized. Worden’s representatives used the term “invasion of privacy” but stopped short of any accusation of theft or fraud.
What’s fascinating about the claim is not the facts of this particular occurrence, but rather, the larger questions it raises about jurisdiction once the law leaves terra firma.
Even on Earth, those questions aren’t always straightforward. If you rob a bank in Sunbury, that’s an offense that clearly occurs in Delaware County. But what if you use a computer in Sunbury to steal money from a bank in Chicago? What if you commit a crime in an airplane in mid flight? Or on a cruise ship in the middle of the Atlantic? Now, magnify those questions in outer space where no nation can claim any territory.
Let’s get the simple part out of the way quickly. In the instant case, the report involves a NASA astronaut, using a NASA computer, in a NASA module, accessing an American bank account. If any crime was actually committed (and that’s a big “if” at this point) then it would clearly be prosecuted in the United States. In fact, there’s a specific agreement governing this issue called the International Space Station Intergovernmental Agreement or IGA. The IGA was signed by all 15 nations utilizing the station in 1998. That agreement makes it clear that if the criminal action in space only affects one country, then the country it affects has jurisdiction to deal with it.
But what would happen if a Japanese astronaut stole the iPad of a German astronaut in a module belonging to Russia? Who gets to prosecute it then? The Japanese because their citizen committed the crime? The Germans, because they were the victim? The Russians, because it happened in their module? Would there have to be extradition proceedings? Would the case have to wait until they were all back on Earth?
The answers to those questions are … murky. The IGA says that we’ll all sit down and work it out together. But it doesn’t provide clear guidelines on what will happen if we can’t. It’s easy to imagine a situation in which those astronauts return to Russia and aren’t allowed to leave until the matter is settled. That could get ugly.
Fortunately, it isn’t particularly likely that those kinds of crimes are going to happen on the ISS. That said, we appear to be on the cusp of space as a realm of tourism. Imagine that an American company launches a spacecraft to a Russian station. While there, an Australian space tourist stabs another from Greece. Now what? The Outer Space Treaty, effective since 1967, provides that nations are responsible for their own spacecraft, but it doesn’t anticipate actions by private individuals, because in 1967 it simply wasn’t fathomable that private individuals would be in space.
The “nationality principle” of international law permits nations to prosecute their citizens for crimes committed outside their territorial jurisdiction. And international law already has provisions that govern crimes committed on international waters — better known as piracy. So, perhaps the answer here is simply to treat weightless criminals as space pirates.
Regardless, as SpaceX and Virgin Galactic get closer to selling seats for space travel, the countries of the world may need to negotiate something they had never before considered — who has jurisdiction in the vastness of space.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas.