NASA’s Office of Inspector General has been investigating what may be the first alleged crime in space. Anne McClain, a NASA astronaut, has been accused of identity theft and improperly accessing her spouse’s private financial records while aboard the International Space Station (ISS).

Although the alleged crimes occurred in space, there are no choice of law or jurisdictional issues because the alleged crimes only involve United States (U.S.) citizens. Besides, the ISS is governed by the Intergovernmental Agreement (IGA) on Space Station Cooperation. Pursuant to Article 22 of the IGA, the U.S. may exercise criminal jurisdiction over ISS personnel who are U.S. citizens as long as the cases do not involve nationals of other Partner States (Partner States include Canada, Europe, Japan, Russia, and the United States).

Criminal jurisdiction is more complicated if cases involve personnel from multiple Partner States. According to Article 22 of the IGA, the Partner State of the perpetrator shall retain criminal jurisdiction unless an agreement is reached with the affected Partner State to transfer jurisdiction or if the Partner State of the perpetrator fails to assume prosecution of the case. These jurisdictional rules set forth in Article 22 of the IGA supersede other general jurisdictional rules.

Jurisdictional issues become murkier if cases occur outside the ISS. Space, like the high seas, is res communis (common heritage of mankind). Under general principles of international law, international criminal jurisdiction can be determined through the territoriality principle [i], active nationality principle [ii], passive nationality principle [iii], protective principle [iv], universality principle [v], or effects principle [vi].

Under current international space law, two treaties, the Outer Space Treaty (OST) and the Moon Agreement (MA), shed light on the issue of criminal jurisdiction. Article VIII of the OST provides that “[a] State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.” Registration of spacecrafts is governed by the Registration Convention. It is worth noting that the OST does not use the words “exclusive jurisdiction,” but simply “jurisdiction,” which means that the OST does not foreclose the possibility that another state may exercise criminal jurisdiction based on the internationally recognized principles, mentioned above, if the state of registry decides not to prosecute. If a crime takes place on the moon, Article 12 of the MA applies, which provides that “States Parties shall retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations on the moon.” It appears that the MA is merely applying Article VIII of the OST to the moon, without adding anything new.

To resolve criminal jurisdictional issues in places outside the jurisdiction of any nation, Congress enacted a special provision in the United States Code. This provision is known as the Special Maritime and Territorial Jurisdiction of the United States. According to the Department of Justice, this provision only applies to certain types of offenses including murder, manslaughter, maiming, kidnapping, rape, assault, and robbery. For other offenses, such as identity theft, it is unclear whether this provision applies.

[i] The territoriality principle provides that the courts of the state where the crime was committed may exercise jurisdiction.

[ii] The active nationality principle states that the state may assert jurisdiction on criminal acts of its nationals abroad.

[iii] The passive nationality principle attributes jurisdiction to the courts of a state when the victim of a crime abroad was its national.

[iv] The protective principle establishes that a state may assert jurisdiction over aliens for acts committed abroad which affect the state’s security.

[v] The universality principle recognizes the jurisdiction of every state to try certain offences because they are considered particularly offensive to the international community as a whole.

[vi] The effects principle allows for the extraterritorial application of the domestic law of a state in cases where the behavior of a foreigner abroad produces effects within its territory.