The ins and outs of orbital law and order.
The International Space Station. Image: NASA
The International Space Station is a powerful symbol of global cooperation. It demonstrates the literal heights that humans can reach when national differences are put aside for a common goal, and its astronauts frequently embody that good will by having each others' backs, regardless of nationality.
But just because ISS astronauts have hitherto been class acts by no means guarantees that conflicts won't arise in the future. Indeed, the space community anticipated this problem long before the first module of the station ever launched, and set to work hammering out the legal details of the unprecedented project throughout the 1980s and 1990s.
"It took many years to negotiate the Space Station Agreement," said Joanne Gabrynowicz, a prominent space lawyer and professor emerita at the University of Mississippi, in a phone interview. "It started out that it was going to be negotiated between and among the space agencies, but then when it became as complex as it did, it rose to the level of the State Department."
"I think the Space Station Agreement doesn't get near as much attention as it deserves to get," she added.
Indeed, the ISS Intergovernmental Agreement, which was first signed in 1988—and again after the inclusion of Russia as a partner on January 29th, 1998—has since become a benchmark of space law, and a promising model for future space exploration agreements.
The document is divided into four main bodies of law. The portions dealing with jurisdiction and intellectual property define the legal and scientific boundaries between the participating nations, while a tort law section outlines how to handle an accident on the station.
But perhaps the most tantalizing portion of the agreement is the one devoted to criminal law. No space crimes have occurred so far, but that doesn't mean we won't be prepared if they ever do.
"I am unaware of anyone committing a crime in space," Gabrynowicz said. But she did present a juicy speculative situation: "What happens if it's been a long hard day at the American lab, and a European astronaut punches a Canadian in the American module, but then runs over to the Japanese module? Who has jurisdiction over that?"
Not surprisingly, this is a very complicated question. "Each of the modules is registered by a different country, so that means that if you're in the US laboratory, you're on a piece of US territory," explained Gabrynowicz. "If you mosey over to the Japanese module, you are now in Japan. So, it's like an embassy. It's national territory."
"At the same time, you have astronauts from all over the world," she continued. "You have Russians, you have Americans, you have Japanese, you have Canadians, Europeans, and visitors, and each one of them is subject to the jurisdiction of their own country."
With all those factors in mind, this is what the authors of the Space Station Agreement ultimately decided upon with regard to prosecuting space crimes:
In other words, astronauts are always subject to their own nation's laws. But if an astronaut attacks a crew member from another country, or trashes another nation state's property, he or she will be prosecuted according to the laws of the affected country.
It's possible that another route might be agreed upon during the consultation between the respective nations of the parties, but the clause ensures that the affected nation state will have recourse either way.
What's more, the Space Station Agreement has provisions for orbital extradition. On Earth, extradition is the process by which a country transfers a suspected or convicted criminal to another country for prosecution. Should an astronaut ever need to be similarly removed from the ISS for prosecution, the protocol is already laid out.
"If an astronaut is involved with a crime but their home nation doesn't have any extradition treaty with the nations of the other astronauts," said Gabrynowicz, "then the Space Station Agreement itself can function as an extradition treaty."
It's easy to see why Gabrynowicz thinks this agreement should get more attention. It has anticipated a wide variety of problems and pitfalls, and provided creative solutions for the bulk of them. Like many aspects of space law (or any international law for that matter), the agreement isn't immune to backchannel political rumblings, but on a legal level it's been a success so far.
Moreover, as the document itself repeatedly stresses, the expansion of human activity into outer space is evolutionary in nature, and will require many more decades of negotiations, addendums, and revisions.
Indeed, the Space Station Agreement already includes numerous supporting memoranda, letters of agreement, implementing agreements, and national codes of conduct that clarify specifics as they arise. It's good to know that there is such a solid legal framework upon which to build our future in space.