Space Law: Jurisdiction Beyond Earth's Boundaries

Space law is a complex and rapidly evolving field that governs space-related activities and encompasses both international and domestic agreements, rules, and principles. The exploration and utilisation of outer space are addressed in five primary international treaties, often referred to informally as the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement. These treaties establish foundational principles such as the freedom to explore and use outer space, the prohibition of national sovereignty claims, the peaceful use of celestial bodies, and liability for damage caused by space objects. The delimitation between airspace and outer space remains legally undefined, and the advent of space tourism, militarisation, and commercial activities further complicate the application of space law.

Criminal law in space

The Outer Space Treaty of 1967 is one of the most relevant agreements when dealing with alleged crimes in space. This treaty requires the exploration and use of outer space to be free and in the interests of all countries, without any claim of national sovereignty. It also stipulates that nations are responsible for their national space activities and are liable for any damage caused by their space objects. While this treaty provides a foundation for addressing criminal matters, it does not cover all potential scenarios, especially with the increasing involvement of private citizens and companies in space activities.

In terms of jurisdiction, a spacefaring criminal would generally be subject to the law of their country of citizenship or the country whose registered spacecraft was involved in the incident. This is known as "active-nationality" jurisdiction. However, the situation becomes more complicated if the alleged criminal holds dual citizenship or if multiple countries' citizens are involved.

The International Space Station (ISS) has its own intergovernmental agreement that specifically addresses criminal jurisdiction. This agreement allows partner nations, including Canada, European Partner States, Japan, Russia, and the United States, to exercise criminal jurisdiction over their respective nationals on the ISS. This simplifies the legal process when both the accused and the victim are citizens of the same country.

For space flights not aboard the ISS, the situation becomes more complex. The criminal law of the country of registration of the spacecraft would likely apply, but this could be challenged if the countries whose citizens are involved also attempt to claim jurisdiction. Additionally, the question of where space begins adds another layer of complexity, making it difficult to determine whether air law or space law should apply at certain altitudes.

With the increasing involvement of private citizens and companies in space activities, such as space tourism and resource extraction, the need for clear and comprehensive criminal laws in space becomes more pressing. As of 2024, no person from any country is known to have been charged with a crime committed in space. However, with the advent of more frequent space travel and the potential for criminal activities, establishing clear guidelines and international cooperation will be crucial to ensure the safety and security of all parties involved.

Space exploration and exploitation

The Outer Space Treaty sets the foundational principles for all exploration and use of outer space. It is the broadest of all the space-specific treaties, and the other treaties can be seen as supplements to it. The treaty requires the exploration and use of outer space to be free, in the interests of all countries, and not subject to any claim of national sovereignty. The Moon and other bodies are to be used only for peaceful purposes. Nations are responsible for national space activities and are liable for damage caused by their space objects.

The Rescue Agreement, formally known as the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, elaborates on Articles 5 and 8 of the Outer Space Treaty. It provides for the rescue and return of astronauts in distress and of space objects to their launching authorities.

The Liability Convention, formally known as the Convention on International Liability for Damage Caused by Space Objects, elaborates on Article 7 of the Outer Space Treaty. It defines the circumstances in which a launching state is liable for a space object, deals with multiple 'launching states' in respect of a single space object, outlines how a claim might be made within a one-year timeframe, and provides for the establishment of an ad hoc Claims Commission to settle claims between two or more states.

The Registration Convention, formally known as the Convention on Registration of Objects Launched into Outer Space, builds on the Outer Space Treaty, Rescue Agreement, and Liability Convention. It provides for the registration of space objects by the, or one of the, launching states in respect of a space object.

The Moon Agreement, formally known as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, reaffirms and elaborates on many of the provisions in the Outer Space Treaty. It covers not just the Moon, but all celestial bodies. It reiterates the apparent bar to any assertion of property rights and adds a concept of outer space as the 'common heritage of mankind'. The Moon Agreement also provides extra detail about the specific mode of cooperative use and foreshadows an international regime for the exploitation of the natural resources of the Moon and other celestial bodies.

Liability for damage caused by space objects

The exploration and use of the space environment, including outer space, the moon, and celestial bodies, can cause harm to people and property. International law and municipal law have, therefore, focused on rules that allow for the payment of money damages for harm caused by space objects and their component parts, including the "payload".

The Convention on International Liability for Damage Caused by Space Objects, also known as the Liability Convention, is one of the five international treaties underpinning space law. It was negotiated by the Legal Subcommittee from 1963 to 1972, and agreement was reached in the General Assembly in 1971. The convention provides that a launching state is absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space. The convention also provides procedures for the settlement of claims for damages.

The Liability Convention elaborates on Article 7 of the Outer Space Treaty, which states that each country is responsible for its space activities, including private commercial endeavours, and must provide authorization and continuing supervision. The Outer Space Treaty is the foundation of international space law for signatory nations, and it presents principles for space exploration and operation.

The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) oversees the five international treaties that underpin space law. The United Nations Office for Outer Space Affairs (UNOOSA) serves as the secretariat of the committee and promotes Access to Space for All through a wide range of conferences and capacity-building programs.

Rescue and return of astronauts and spacecraft

The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, also known as the Rescue Agreement, is an international agreement that establishes the rights and responsibilities of nations regarding the rescue of individuals in space. The agreement was formed by a consensus vote in the United Nations General Assembly (Resolution 2345 (XXII)) on December 19, 1967, and came into force on December 3, 1968.

The Rescue Agreement requires any state party that becomes aware of a spacecraft in distress to notify the launching authority and the UN Secretary-General. Any state party to the agreement must provide all possible assistance to rescue the personnel of a spacecraft who have landed within its territory, regardless of the reason. If the distress occurs in an area beyond the territory of any nation, any state party in a position to do so is expected to extend assistance in the search and rescue operation.

The Rescue Agreement also addresses the issue of compensating for the recovery of a space object. If a space object or its parts land in the territory of another state party, the state where the object lands is required to recover and return the space object to the launching authority upon request. The launching state must then compensate the state for the costs incurred in the recovery and return process.

The Rescue Agreement has been criticised for its vague language, particularly regarding the definition of who is entitled to be rescued and what constitutes a spacecraft and its component parts. The cost burden of a rescue mission is also not explicitly addressed in the agreement.

Space object registration

The registration of space objects is one of the basic principles of space law. The registration of space objects is similar to the registration of ships at sea and aircraft in international airspace. Registration of space objects is necessary to allocate "jurisdiction and control" over those objects in the sovereign-free environment of outer space.

The United Nations Register of Objects Launched into Outer Space was established in 1962 as a mechanism to aid the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) in its discussions on the political, legal, and technical issues concerning outer space. The evolution of international space law resulted in space object registration becoming a means of identifying which states bear international responsibility and liability for space objects.

The Convention on Registration of Objects Launched into Outer Space (commonly known as the Registration Convention) was adopted by the United Nations General Assembly in 1974 and went into force in 1976. As of February 2022, it has been ratified by 72 states. The convention requires states to provide the United Nations with details about the orbit of each space object.

The registration process is divided into a national and an international level. The State Party establishes a national registry for its space objects, and those registrations are communicated via diplomatic channels to the UN Register of space objects. The UN Register is handled by the UN Office for Outer Space Affairs (UNOOSA) and is an open-source of information for space objects worldwide.

Registration is linked to the so-called launching state of the relevant space object. There might be more than one launching state for a specific launch event, but only one state actor can register a specific space object. The state of registry gains "jurisdiction and control" over the space object, and therefore, no double registration is permissible.

The complexity of launch activities and the concepts of mega-constellations lead to new challenges for the registration system. The Registration Practice Resolution already recommends that in cases of joint launches, each space object should be registered separately.

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