To Infinity and Beyond International Law: The First Space Crime – By Rebeccah Richards

To Infinity and Beyond International Law : The First Space Crime By Rebeccah Richards

When James T. Kirk (Chris Pine edition) violates the prime directive, he is stripped of his command title and demoted. When Darth Vader uses his Death Star to inflict mass destruction, his genocidal actions are met with swift action from the rebel alliance. But when a NASA astronaut is accused of identity theft and improper access of bank accounts while stationed aboard the International Space Station (ISS) - what action is to be taken? What ‘space law’ do we turn to? ‘The First Space Crime’ In August 2019, NASA astronaut Anne McClain was accused of accessing the bank account of her former spouse, Summer Worden, from the ISS. In the midst of their separation and a custody dispute for their son, Worden noticed McClain appeared to know details of her spending. Worden, being an ex-intelligence officer, sought answers as to how her former partner came to know such private details. She requested the locations of where her accounts had been accessed. It was no coincidence that a computer registered to the National Aeronautics and Space Administration, better known as NASA, was detected. McClain claims she is not guilty of any wrongdoing. She claims she was simply settling post-separation finances and ensuring enough money was in the accounts to take care of their son. Worden, on the other hand, took instant action by filing a complaint with both the Federal Trade Commission and NASA’s Office of Inspector General. Her accusations stand as identity theft and improper access to private financial records.

But regardless of what McClain’s intentions were, what is the next step in determining this ‘space law’ issue? Is there even an existing ‘space law’ to guide us? The accusations raise a major international law issue. If found guilty, McClain will be the first person in history to be sentenced for a crime committed in space - the very first ‘space crime’. What ‘space law’ do we turn to? There are currently six treaties that form the basis of ‘space law’ as it stands today. The primary of these is the Intergovernmental Agreement (IGA) on Space Station Cooperation, signed at Washington in 1998. Agencies of the ISS, the US, Canada, Japan, Russia and several European countries are the signatories to this treaty. Under Article 1, the object and scope of the treaty centres on establishment of a long-term international cooperative framework among signatories, and to join efforts to create an integrated ISS. Article 2 states that the Space Station is to operate in accordance with the Outer Space Treaty, Rescue Agreement, Liability Convention and the Registration Convention. These four agreements, in addition to the Moon Agreement and IGA, form the basis of our current space law. Jurisdiction? In regards to jurisdiction, Article 22 of the IGA states that each Partner state shall retain criminal jurisdiction and control over personnel, in or on the Space Station, who are its nationals. This does not pose a great challenge in the case of McClain and Worden, since they are both US nationals. McClain can thus be investigated under US law.

But these treaties are silent on what happens for disputes between nationals from different countries. Imagine the complications if the accused and complaining party were to originate from separate jurisdictions. Does it become a matter for our international law courts, such as the ICC? The answer would surely be in the negative, as courts such as the ICC are designated to prosecute egregious violations of international law –not disputes that have no basis in international law treaties.

If one commits an offence overseas, there are usually three paths that can be taken: (1) prosecution under the law of the foreign country; (2) upon leaving the country in which the crime was committed, extradition back to that country for prosecution; or (3) prosecution in country of origin. Article 22 only specifies that in a case between different nationals, the IGA may be considered the legal basis for an extradition treaty where there is not one between countries.

However, it is clear from Article 22(4) that the scope of the article predominantly extends to alleged misconduct on orbit –either individual misconduct or misconduct between crew members. Using the NASA network to access bank accounts and commit identify theft was not within the scope of the treaty when it was signed in 1998.

McClain’s actions, whilst provocative, have been highly productive to the international law field. It has drawn public attention to the necessity of developing and increasing the coverage of ‘space law’. It is imperative that ‘space law’ be more comprehensive before we talk about inhabiting another planet. As our activities in space increase and begin to replicate our lives on Earth, the law must keep up. If not, problems are sure to be astronomical.