An Appraisal of Criminal Jurisdiction for Crimes Committed in Space by a Private Space-Faring Company

Abstract

The increasing involvement of private entities in space exploration and utilization, evidenced by private launch services, extensive satellite networks, and emerging space tourism, has significantly altered space law, particularly concerning criminal jurisdiction. Established legal frameworks, based on territorial sovereignty, encounter new difficulties when private companies operate across various jurisdictions, utilize third states for launch services to reduce costs, or manage crewed vehicles beyond Earth's atmosphere. This analysis critically examines the current international legal framework for allocating criminal jurisdiction in space, identifies the complexities introduced by private space actors, and advocates for the development of a specific legal framework (lex specialis) and an institutional mechanism to address criminal offenses involving private space enterprises. (March, 1988). The
prevailing legal framework, particularly Article VIII of the 1967 Outer Space Treaty, bases jurisdiction on two principal determinants: the registry state of a space object and the nationality of individuals on board Reinert,. This dual jurisdictional basis is further clarified for collaborative operations aboard the International Space Station through the 1998 Intergovernmental Agreement. This agreement stipulates that each partner State may exercise criminal jurisdiction over its own nationals on any flight element and permits the victim's State to assume jurisdiction if no agreement is reached within three months. Furthermore, under Article VI of the Outer Space Treaty, States retain the obligation to authorize and supervise the activities of non-governmental entities, and they are held liable under the Liability Convention for damages caused by the space objects they launch or procure.(Gupta & Kd, 2019). However, significant jurisdictional ambiguities arise with the entry of private entities into space activities. The territorial scope of jurisdiction becomes unclear when a spacecraft is registered in one nation, launched from another, carries passengers of multiple nationalities, and is operated by a private firm, potentially leading to forum shopping and regulatory arbitrage. Moreover, the definition of "personnel" within the Outer Space Treaty remains undefined, creating uncertainty regarding the prosecution of offenses committed by private space tourists aboard spacecraft registered in foreign
states.Furthermore, investigation logistics—such as preserving telemetry, securing evidence, and conducting remote forensic procedures—lack standardized international protocols, raising enforcement challenges (White, 2021). This analysis employs a three-pronged approach to examine criminal jurisdiction in space, focusing on crimes occurring on multinational orbital platforms, offenses during independent private missions or space tourism, and extraterritorial assertions of jurisdiction by states. The 2019 incident involving Anne McClain aboard the ISS, where both the accused and alleged victim were U.S. nationals, facilitating straightforward U.S. jurisdiction, highlighted the escalating complexity of jurisdictional clarity when an individual's nationality does not align with the registration of the space object.(Moenter, 1999). To address these shortcomings, the article advocates for the
negotiation of a dedicated Space Criminal Jurisdiction Convention. This convention should establish a hierarchical jurisdictional framework, define core space-specific criminal offenses along with evidentiary standards, impose cooperation obligations on private operators as a condition for licensing, and institute international investigative standards and mechanisms analogous to those used in aviation safety. Furthermore, complementary national licensing regimes should incorporate provisions for criminal compliance, extraterritorial jurisdiction, and mutual legal assistance. In summary, as private entities increasingly conduct operations in orbit and beyond, the absence of a specialized legal framework for criminal adjudication presents substantial legal, security, and commercial risks. The development of a specific legal instrument (lex specialis), alongside harmonized national legislation and enhanced institutional capabilities, is therefore crucial for ensuring safety, accountability, and fostering investor confidence in future space endeavours (Casey, 2022; Reinert, 2020).