Plugging the Leaks in Outer Space Criminal Jurisdiction: Advocation for the Creation of a Universal Outer Space Criminal Statute

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 35 No. 2

Plugging the Leaks in Outer Space Criminal Jurisdiction: Advocation for the Creation of a Universal Outer Space Criminal Statute

Reid White

PLUGGING THE LEAKS IN OUTER SPACE CRIMINAL JURISDICTION: ADVOCATION FOR THE CREATION OF A UNIVERSAL OUTER SPACE CRIMINAL STATUTE

Introduction

A. Opening Statements

Humanity achieved an outer space milestone in 2019: The United States' National Aeronautics and Space Administration (NASA) began the first criminal investigation into an alleged outer space crime.¹ On August 23 of that year, The New York Times broke the story U.S. Astronaut Anne McClain was accused of illegally accessing bank accounts that were at least jointly owned by her estranged spouse.² The plot twist was she did it not from her home, nor from a training facility on Earth; she was on the International Space Station (ISS).³ If the allegations are true, the act raises the question, who has jurisdiction and what criminal law applies to Ms. McClain if prosecuted? Luckily, current outer space laws already answer these questions as applicable to this scenario.⁴ However, the question still lingers in situations not covered by existing legal authority, such as Jim's murder in the "Space Murder Story" discussed infra.

To resolve this legal question and to forestall continuation of our current scheme of ad hoc rulemaking for outer space, this Comment proposes the establishment of an Outer Space Criminal Statute (OSCS).⁵ This statute would be universal, supreme, and define crimes for all persons in outer space regardless of nationality, and its court would have original jurisdiction for all crimes in outer space. Though reaching agreement on formation of an OSCS would likely be fraught with controversy and struggle, this should not dissuade the

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international community from seizing its opportunity to do so while a strong outer space esprit de corps still dominates.⁶

What this Comment does not discuss is the specific content of the proposed OSCS. Like the creation of the Rome Statute of the International Criminal Court ("Rome Statute"), there will be much international debate regarding the contents of said statute, especially in regard to elements of crimes and principles of rule and procedure. Besides admitting their probable necessity, this Comment does not discuss the executive and judicial bodies responsible for enforcing and adjudicating, respectively, violations of an OSCS. This Comment is also limited to criminal jurisdiction; there will be inevitable issues regarding establishment of territories, allocation of resources, and other civil issues.

In pursuit of this conclusion, this Comment disembarks from here with a possible "Space Murder Story" from the future. After, in Section II, this Comment further articulates the legal problem humanity faces as it prepares to embark on mass civil space travel. Section III burns through a brief summary of mankind's journey to space, culminating in near future plans for space travel. Section IV explains current legal authority regarding criminal activity in outer space and shows its insufficiency through application to Roy's offense from the "Space Murder Story." Then, in Section V, this Comment presents the value of a universal and sovereign OSCS, outlines the immediate benefits, and describes the future advantages. The Comment concludes in Section VI.

B. "Space Murder Story"

Sometime in 2320, Roy untethered himself from his sleeping bag and floated across the crew quarters to the porthole facing Titan, one of Saturn's moons. He stared at his assigned worksite, RA 983, a resource asteroid that had been towed into orbit around Titan. RA 983's orbit was synchronized with that of his home, Scranton Station.

Scranton Station was Earth's first permanent, commercially owned, outer space mining platform. In stable geostationary orbit, Scranton Station was connected to Titan's surface via orbital elevator, which transported refined oil to waiting tanker drones for transport to Earth.

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Scranton Station was a product of the need for oil. Shortly after the turn of the millennium, Earth space agencies discovered enormous liquid hydrocarbon reserves on Titan.⁷ In preparation for the depletion of Earth's oil reserves, a multinational conglomerate of Earth's largest energy companies formed Space Exploration Organization, Inc. (SEO). SEO was created to develop economical ways to recover the oil on Titan, allowing SEO to eventually monopolize Earth's oil supply once Earth's reserves were depleted.

SEO's aggregation of wealth allowed it to undertake outer space endeavors without financial reliance on governmental space agencies. Through lobbying, SEO was able to stall the development of international outer space law, successfully ensuring no changes had been made to outer space law since 2020. Taking advantage of legal loopholes, SEO developed a comprehensive plan to establish space stations free from Earth-nation jurisdiction. It launched its initial, privately-owned spacecraft, Baron I, from stateless vessels in international waters. Once near Saturn, SEO mined resource-rich asteroids from Saturn's rings to build and provision Scranton Station. Often, as in the case of RA 983, smaller resource asteroids were towed near the station to expedite resource extraction.

As a result, Scranton Station and all of its components, provisions, and supporting spacecraft were fabricated entirely in space, with no part launched from Earth; Baron I was landed on Titan as a museum and decommissioned.

When staffing Scranton Station, SEO struggled to convince people to make the two to six-year journey to Titan to perform dangerous work isolated from Earth. Because of its limited supply of workers, SEO was forced to employ some of the more dangerous and seedier of Earth's population, often hiring those wanted for heinous crimes or otherwise are attracted to the insulation from Earth-nations Scranton Station provided.

Roy was one such individual. The United States stripped Roy's U.S. citizenship after he committed particularly nasty atrocities against the United States for some radical terror groups. He managed to escape from prison after his conviction for treason.⁸ As a stateless person, he sought employment on Scranton Station for the lucrative pay, to avoid earthly difficulties as a stateless person, and to escape governmental authority. Upon arrival to Scranton Station,

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Roy was assigned to a resource recovery crew which was tasked with mining metals from RA 983.

Turning away from his porthole, Roy quickly dressed and carefully pushed himself through the microgravity into the corridor leading to his crew's extra-vehicular activity (EVA) ready room. There, he would meet with his crew and prepare to travel to RA 983 in order to collect the heavy metals necessary for Scranton Station's continued existence. During EVA maneuvers, all crewmembers were assigned to a partner for safety and redundancy to mitigate the extreme dangers of leaving the relative safety of Scranton Station. Roy's EVA partner was Jim.

Unlike Roy, Jim was born on Scranton Station. His father, a wealthy Monégasque, visited Scranton Station as a space tourist. While visiting the station, he and Jim's mother, a U.S. national employed by SEO, conceived Jim. Jim's father returned to Monaco some weeks later. Jim never obtained Monegasque citizenship as his parents were never married,⁹ and he never obtained U.S. citizenship due to his inability to adequately communicate with U.S. authorities and apply for citizenship through his mother.¹⁰

As Roy carefully navigated the maze of corridors, his anger built as he ruminated on his ongoing conflict with Jim. Some months ago, Roy began a relationship with Pam, another SEO employee. However, he recently discovered Jim began an affair with Pam. As a result, Roy felt his usual rage as he entered the ready-room and saw his EVA partner. Planning his revenge, he put on his EVA suit in silence.

Some hours later, Roy and Jim found themselves on the surface of RA 983. Roy waited until he and Jim were in the shadow of the space station, then quickly disconnected Jim from his air supply, opening Jim's suit to vacuum, causing Jim to asphyxiate and die.

Another SEO employee witnessed the killing and reported it to Scranton Station management. Unsure of how to handle the unprecedented situation, SEO quickly fired Roy and arranged for him to be sent back to Earth so someone else could figure out criminal proceedings.

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After Roy's three-year journey, the United Kingdom agreed to take Roy into custody for Jim's murder. However, Roy's lawyer quickly pointed out jurisdictional issues with trying the "murder" in the United Kingdom, or anywhere. Neither Roy nor Jim were nationals of any country, and no country had a territorial claim over the "crime's" location. Finally, a centuries-old outer space criminal jurisdictional question had moved from hypothetical to reality: was there a basis in 2020's outer space legal authority to hold Roy accountable for killing Jim?

I. The Problem Explained

With human expansion comes human problems, including crime.¹¹ As evidenced by Ms. McCain, space is no exception.¹² In fact, "it is expected that there will be a high rate of criminal and deviant conflicts in any long-term human presence in outer space. . . ."¹³ This prediction is strengthened by disheartening results of experiments on Earth designed to test human responses to isolation in space.¹⁴ During a particularly disconcerting trial conducted by Russia over a period of 100 days, the commander of the mock space mission committed battery, assault, and attempted murder and tried to rape a female crewmember while drunk.¹⁵ Though classified, rumors exist regarding criminal acts in real outer space missions.¹⁶

This recalcitrant behavior by cosmonauts and astronauts is especially troubling: with the exception of seven paid space tourists,¹⁷ the approximately 550 people that have traveled to...