Space: A New Frontier For Law
This article is written by Vikranta Pradeep Barsay a student of National Law University and Judicial Academy, Assam. In this article, he has dealt with the concept of space laws.
World War II was fought on a global platform between the Triple Axis: Adolf Hitler’s Germany, Benito Mussolini’s Italy and Hideki Tojo’s Japan, and the Allied Powers: Winston Churchill’s Great Britain, Joseph Stalin’s the Soviet Union, Charles de Gaulle’s France and Harry S. Truman’s the United States of America, on two major fronts: Europe and the Pacific Ocean. The war began with Adolf Hitler giving the orders to invade Poland on August 31, 1939, at noon, wherein Great Britain and France declared war on Nazi Germany on September 3, 1939, due to their guarantee pact with Poland where they said that they’d protect Poland’s sovereignty against any external aggression, following the invasion of Czechoslovakia by Germany on March 16, 1939.
World War II ended on multiple fronts, at multiple dates, i.e. within Europe itself, the German troops surrendered to Great Britain and the United States of America on May 8, 1945, while capitulating to the Red Army on May 9, 1945. It would take another four months for the Land of the Rising Sun to surrender to the United States of America with its official signing by Japan’s Minister of Foreign Affairs, Mamoru Shigemitsu, on September 2, 1945, after the latter dropped two atomic bombs on the Japanese towns of Hiroshima and Nagasaki on August 6 and August 9 respectively.
George Orwell coined the phrase, Cold War, in the essay, You and the Atom Bomb, in October 1945, where he illustrated the aftermath of World War II in the context of the recent bombing of Hiroshima and Nagasaki. George Orwell posits that only a few ‘super-states could possess the atomic bomb due to the expensiveness and the manufacturing difficulty of the device, wherein millions of powerless individuals can be erased in a matter of seconds with the atomic bomb.
In the truest sense of the phrase, George Orwell calls the Cold War as a disguised peace between major super-states, wherein the power to wipe the other side in a blink of an eye creates a geopolitical divide between such super-states. The western sphere, led by the United States of America (USA) and the eastern sphere, led by the Soviet Union emerged as the said super-states in the aftermath of World War II. It is worth noting that the Cold War began with the perceived misunderstanding between the two spheres, wherein the USA was concerned about Joseph Stalin’s tyrannical expansion of Communism in Europe while the Soviets abhorred America’s dominating interference in global geopolitics where the former thought that the latter is trying to impede its recognition as a legitimate nation on various international forums.
The Foreign Service Diplomat of the United States of America in Moscow, George F. Kennan, sent an 8,000-word telegram to the US Department of State where he called for resistance of force to contain the Soviet influence from spreading into backward and dependent areas of Iran and Turkey. Kennan observed that the Soviets were deeply insecure about their position in global geopolitics; additionally, the Soviets opined that the total destruction of their rivals was the only way to get over the supposed insecurity.
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American President, Harry S. Truman, declared a Containment Policy where diplomacy with the Soviets was placed on the back-burner and long-term militia-economic resistance to Soviet Expansionism of Communism took its place at the industrial centres like Japan and Western Europe of the western world. It is worth noting that George F. Kennan’s politico-economic pressure included the advocacy for the Marshall Plan where a direct economic aid of $13 billion was provided to seventeen western European nations, included Luxembourg, West Germany and Italy for the purpose of the economic rehabilitation of industrial and agricultural sectors. The insecurities of the Soviet Union caused them to withdraw from the Marshall Plan; additionally, the influence of the Soviet Union on eastern Europe caused the latter to pull out from the plan as well.
General Douglas MacArthur led the Supreme Command of Allied Powers (SCAP) to reconstruct the weak economy of Japan in the aftermath of World War II, wherein the SCAP introduced critical land reforms, disbanded major Japanese conglomerates to transform the domestic communist market into a free capital market, changed the taxation system and redirected the flow of essential raw materials from the warring Korean peninsula to the industries of Japan. The economic rehabilitation of Japan was inspired to avert the rising threat of the domestic communist movement, which had taken over other Asian countries like China where Mao Zedong introduced communism in the country with the establishment of the People’s Republic of China on October 1, 1949.
The Director of Policy Planning at the Department of State in the United States of America and the successor of George F. Kennan, Paul Nitze, criticized George F. Kennan’s Containment Policy as being too defensive, wherein he felt that military power must be utilized rather than economic measures and psychological tactics to contain Soviet Expansionism. A routine flight of a B-29 over the Kamchatka Peninsula in the Soviet Union in September 1949, detected high levels of radiation in the area; this confirmed the suspicion of the Department of State about the Soviet Union testing atomic weapons. The reality that the Soviet Union could attack the United States of America with atomic weapons, inspired President Harry S. Truman and Paul Nitze to follow a military action to contain Soviet Expansionism.
Although George F. Kennan opposed the creation of the NATO (North-Atlantic Treaty Organization), Paul Nitze conceptualized the NSC-68 in collaboration with the National Security Council to expand the military prowess of the United States of America. The Department of State formed a Z-Committee of Louis Johnson (Secretary of Defence) and David Lilienthal (Head of the Atomic Energy Commission), Dean Acheson (Secretary of State) to discuss the stand of the United States on the manufacturing of the Hydrogen Bomb. Paul Nitze was asked to make a decision since the Z-Committee was divided in opinion with a vote of approval from the Department of Defence and a vote of dissent from the Atomic Energy Commission.
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Paul Nitze leaned in favour of the Department of Defence to manufacture a Hydrogen Bomb to maintain a nuclear edge over the Soviet Union while maintaining peace and stability on a global scale, wherein Nitze believed that a Hydrogen Bomb incentivizes international peace and cooperation while deterring the manufacture and use of nuclear weapons on either side of the Cold War. The aforementioned NSC-68 elucidated the military strategy of Paul Nitze to curb Soviet Expansionism, wherein a hike in the military budget was gestated to secure the interests of the United States of America on international soil while proclaiming a global hostility towards Communism.
Operation IVY was successfully performed on November 1, 1952, on the island of Elugelab within the Enewetak atoll of the Marshall islands, wherein the explosion, called Mike Shot, from the detonation of a Hydrogen Bomb released energy equivalent to 10 Megatons of TNT. The explosion not only put the United States of America iat the forefront of the supposed Arms Race but also cemented the militarized Cold War between the United States of America and the Soviet Union. The Cold War sentiment seeped into the everyday life of the people in both nations, wherein each nation looked for new gridirons to compete. Each nation tried to prove its dominance in technological capabilities and military prowess, wherein missile-based deployment of nuclear warheads using was at the heart of the Cold War’s Arms Race. It can be postulated that technological superiority served a two-fold purpose: a) Protecting the security, integrity and sovereignty of the nation, and b) Projecting the supremacy of national ideology, the Soviet Union’s Authoritarian Communism and the United States of America’s Democratic Capitalism.
Russian Rocket Engineer, Sergei Korolev developed the world’s first Inter-Continental Ballistic Missile (ICBM) called R-7 that weighed close to 280 metric tonnes. The Soviet Union launched Sputnik aboard the powerful R-7 on October 4, 1957, and whilst the United States of America was reeling back from the fact that the Soviet Union’s technological progress granted them the ability not only to drop nuclear bombs on America aboard the R-7 but also to gather intelligence from American soil without being detected, the Soviet Union outdid themselves when they launched the first living-organism into space, Laika, within a month of Sputnik’s launch.
German Engineer, Wernher Magnus Maximilian Freiherr von Braun had developed the most sophisticated rocket for Nazi Germany, the V2, which was capable of achieving a trajectory of 190 kilometres in a matter of five minutes, wherein the V2 was an Intermediate Range Ballistic Missile (IRBM) that could reach as far as London, Paris and Antwerp. Wernher von Braun was bought to the United States of America after the end of World War II under Operation Paperclip where he enhanced the V2 to create Juno, a rocket that carried America’s first successful satellite, the Explorer into orbit on January 31, 1958.
Although the Space Age was motivated by the competitive drive to outfox the other side, it staged some of the greatest achievements of mankind: Cosmonaut Yuri Gagarin sat aboard the Vostok-I to become the first human to reach outer-space on April 12, 1961, Cosmonaut Alexei Leonov conducted the first space-walk from the Voskhod-II on March 18, 1965, and Astronaut Neil Armstrong became the first human to walk on the surface of the moon from Apollo-XI on July 20, 1969.
The lunar landing allowed the United States of America to crown itself as the de facto winner of the Space Age after the explosion of the Soviet Union’s premier N-1 rocket at its launch site at Baikonur, Kazakhstan derailed their ambition to land a cosmonaut on the lunar surface. The N-1 rocket suffered a similar fate for three consecutive launches between February 1969 and November 1972; this coupled with not only the growing animosity and distrust for Sergei Korolev’s decisions about the N-1 rocket amongst the senior officials of the Communist government of the Soviet Union but also the lack of funds within the nation, drove the Soviet Union’s lunar ambition to the ground.
The end of the Space Age saw the dissolution of the tensions between the United States of America and the Soviet Union, wherein the two super-states decided to collaborate on a joint Apollo-Soyuz program in 1975. The Apollo-18 and Soyuz-19 docked in outer-space for forty-four hours where Astronaut Thomas P. Stafford and Cosmonaut Aleksei Leonov conducted jointed scientific experiments and shared a meal together. The collaborative nature of space has culminated into the International Space Station whose development began in 1998 with the launch of the Russian Zarya and the American Unity, wherein Cosmonaut Sergey Krikalyov, Cosmonaut Yuri Gidzenko and Astronaut William Shepherd became the first residents of the station on November 2, 2000. The sentiment of international collaboration was fortified with the disintegration of the Soviet Union on December 25, 1991, into fifteen independent nations.
The Need for Space Law
The International Space Station (ISS) acts as a pinnacle of international cooperation, wherein 242 individuals from nineteen nations have visited the ISS since November 2000; additionally, the United States of America (National Aeronautics and Space Administration), Russia (Roscomos), Canada (Canadian Space Agency), Japan (Japan Aerospace Exploration Agency) and the 11-member European Space Agency act as the international partners to the ISS whose primary duties include the operational management of the component they design and construct. The partnering agencies form a consortium that provides regular assistance for the construction, launch, assembly and operation of various facilities aboard the ISS.
Apart from the International Space Station, 500 individuals from forty nations have been to space; additionally, thirty-seven national space agencies are actively involved in either space exploration or understanding and processing earthbound data.
Earth is confined in a web of 6,000 artificial satellites, wherein 2,666 satellites are currently operational with 1,077 satellites designated as Communication Satellites, 446 satellites restricted to observing the Earth; additionally, 97 satellites are required solely for the operation of the Global Positioning System technology. It is worth noting that the lion’s share of operational satellites serves commercial purposes (1440), wherein private entities like SpaceX, Planet Labs Inc. and Spire Global Inc., own 358, 246 and 89 satellites respectively. The United States of America (49%), China (13%), Russia (6%), the United Kingdom (5%) and Japan (3%) contribute to 76% of all operational satellites in space.
The involvement of multiple nations and private entities has given rise to three cardinal questions:
- If a criminal or civil offence was to occur in space, then which nation will get to exert its jurisdiction over the matter?
- How does one fixate a competent authority that legislates and makes laws regarding space-related activities?
- How are the rules drawn by a competent authority enforced in space; i.e. what would be the official chain of command to enforce legal provisions in space?
In 2019, NASA Astronaut Anne McClain was accused of allegedly accessing her estranged spouse, Summer Worden’s bank account whilst she was in space in the International Space Station. The spouse filed a complaint under the Federal Trade Commission while his parents filed a complaint under the Office of the Inspector General, NASA, wherein it has been difficult in deciding which country gets jurisdiction over the matter since the International Space Station is jointly operated by five partner agencies.
Although the case was prescribed with the American court of law since both, the accused and the victim were citizens of the United States of America, it sheds light on the aforementioned cardinal questions. The commercialization of space where 50% of all satellites are used for commercial purposes, coupled with the fact that the second largest investment in space-related activities occurs for Orbital Infrastructure ($35 billion between 2010 and 2019, and $4.4 billion in 2019 alone), leads to an urgency to decide how a criminal offence is dealt in space.
Space Law: the International Front
A year after the Sputnik-I was launched into space from the Baikonur Cosmodrome, Kazakhstan, the United Nations General Assembly established an 18-member committee under resolution 1348 (XIII) called the Committee On the Peaceful Uses of Outer Space (COPUOS) to bring the space-related activities of not only the member states of the United Nations but also the international specialized entities within the ambit of the COPUOS.
The COPUOS worked through two sub-committees: a) The Scientific and Technical Sub-Committee, and b) The Legal Sub-Committee, wherein the two committees have been convening meetings every year for two weeks since Geneva, 1962, to foster international cooperation between governmental, inter-governmental and non-governmental entities for the peaceful activities and research in outer space that directly or indirectly benefits humanity in all nations irrespective of its socio-economic standing.
The United Nations General Assembly passed a resolution (XVIII) on December 13, 1963, titled, the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, wherein the primordial international legislation about space laid out that a spacecraft will be lawful irrespective of which territory the disputed spacecraft flies over in outer space. The Legal Sub-Committee met every year to discuss the status and the enforcement of the various UN treaties and legal mechanisms about outer space; additionally, the sub-committee was tasked with defining the official space-related terminologies.
The Treaty on Principles Governing the Activities of States in the Exploration And Use of Outer Space, including the Moon and other Celestial Bodies (The Outer Space Treaty) was framed by the United Nations General Assembly on December 19, 1966, wherein 110 nations are legally-bound parties to the treaty, including India (Jan. 18, 1982).
The treaty stands on four pillars: a) No party to the treaty can place or test any arms of mass destruction (nuclear, chemical or biological) either in the Earth’s Orbit or on any celestial body in space, including the moon, b) No party to the treaty can claim sole ownership over any celestial body in space, wherein space can be freely accessed by all nations for scientific investigation, c) The liability for any wrongful activity exists for the party to the treaty that endorses such activity; additionally, the liability for any damage due to an object in space rests with the party to the treaty that launches the disputed object from its territory, and d) The parties to the treaty must cooperate with each other to assist any distressed human in space.
The Outer Space Treaty bars the parties to the treaty from either establishing any military bases or conducting any military exercises on any celestial body in space. It is worth noting that the Outer Space Treaty acts as the foundation stone for future international space legislation.
The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space was enforced by COPUOS on December 3, 1968, wherein ninety-eight nations, including India (signed and ratified), have ratified Resolution 2345 (XXII). The basic premise of the agreement is that the parties to the treaty can be requested by the Launching State to provide assistance in not only the recovery of either a distressed astronaut or a space-bound object that has landed within their jurisdictional territory but also the return of the recovered object/ personnel to the Launching State or the nation under which the object/ personnel is registered.
Article 1 of the agreement mandates the party to the treaty to notify either the Launching State or the Secretary-General of the United Nations as soon as the party to the treaty gets to know about either of the following circumstances that have transpired within the jurisdictional territory of the aforementioned party to the agreement:
- The personnel of a spacecraft is in distress due to an accident.
- A foreign spacecraft must make an unintentionally emergency landing within the jurisdictional territory of the party to the treaty.
It is the sole discretion of the party to the treaty to control the direction of the search and rescue operations for the aforementioned circumstances, wherein the party to the treaty must closely consult with the Launching State while deciding if it requires the assistance of the Launching State.
It is worth noting that Article 3 of the agreement elucidates a situation where either personnel of a spacecraft or the spacecraft itself under Article 1 is found in international territory, then the agreement places the burden on any capable party to the treaty to take steps to rescue the said entities while informing the Launching State and the Secretary-General of the United Nations about the said steps. Article 4 of the agreement mandates the aforementioned party to the treaty to return the rescued personnel of a spacecraft and the recovered spacecraft safely and promptly to the representatives of the Launching State.
In a nutshell, the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space expounds on Article 5 of the Outer Space Treaty, wherein personnel of a spacecraft/ astronauts are treated as envoys of mankind where every party to the treaty must extend all possible assistance to the safe rescue and return of the personnel to the registered nation of the spacecraft if the envoy is in distress within the jurisdictional territory of the party to the treaty.
The Convention on International Liability for Damage Caused by Space Objects was enforced in September 1972; the resolution 2777 (XXVI) exemplifies Article 7 of the Outer Space Treaty, wherein the party to the treaty whose territory was used to launch a space-related vehicle, will be directly liable to pay compensation to an aggrieved party to the treaty for any damage caused by the former’s space-related vehicle in four domains: Earth, Air, Outer Space and Celestial Bodies, including the Moon.
The party to the treaty might escape ‘Absolute Liability’ if there exists a circumstance where the damage due to its space-related vehicle was an outcome of the negligent actions of another party to the treaty. A Major deficit of the convention is its narrow execution, wherein the claim for damages can only be bought by a party to the treaty, i.e. individuals or private entities within a nation cannot claim for compensation for any damages due to the space-related vehicle of the Launching State; additionally, the convention excludes space-related vehicles of private entities (ex: SpaceX, etcetera) from any damage-based absolute liability, i.e. damages done by space-related vehicles of private entities cannot be held under the convention.
Forty-three parties came together to enforce the Convention on the Registration of Objects Launched in Outer Space on September 15, 1976, under resolution 3235 (XXIX) of the United National General Assembly. Every Object that is launched either in the Earth’s orbit or in Outer Space, must be registered with an appropriate national space agency of the Launching State, the Secretary-General of the United Nations and the Secretariat of the COPUOS under Resolution 1721 B (XVI) of the United Nations General Assembly.
The registration must carry with itself the following details: a) Date (in UTC), Location and Jurisdictional Territory of the launch of the space object, b) Orbital Parameters of the space object (including the coordinates), c) The function that the space object serves, and d) The approximate date when the space object will either shut-down or re-enter into the Earth’s atmosphere; additionally, the 62nd session of the United Nations General Assembly in 2008 added supplementary details to the list under Resolution A/RES/62/101, wherein the changes in the status and the physical conditions of the incumbent space object (change in the orbital position, function of the space object, owner of the space object) are recorded with the relevant agencies.
If a space object is launched as a joint venture between multiple parties to the treaty, then the space object must be registered separately for each participating party with the COPUOS.
The most controversial of the five international treaties is the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Treaty), wherein only eighteen nations are a party to the treaty; additionally, no Partner Agency of the ISS is a party to the treaty. The treaty is viewed as a complete failure in the field of space legislations due to clashing ideologies of nations and conflicting interpretations of the provisions of the treaty by the nations. It is worth noting that India is the only signatory (not ratified) to the treaty that has an independent and capable space program, wherein India signed the treaty on January 18, 1982.
In a nutshell, the agreement dictates the parties to the treaty to use the resources of any celestial body (including the Moon) for the benefit of all states of the international community, wherein no party to the treaty is allowed to claim exclusive ownership and sovereignty over the resources of a celestial body. It is worth mentioning that the Moon Treaty bars not only military personnel but also military activities (ex: testing of weapons) from engaging in hostile, non-peaceful activities on any celestial body, including the moon.
The Moon Treaty upholds the responsible exploitation of resources on any celestial body, wherein the party to the treaty is barred from altering the ecosystem of the celestial body. The treaty fosters international cooperation by quashing any discrimination to conduct scientific research in Outer Space and exploit the resources of a celestial body.
The United Nations General Assembly passed a resolution on December 1958, wherein resolution 1348 (XIII) established a Special Committee within the Secretariat of the United Nations to serve as the secretariat for the COPUOS called UNOOSA (United Nations Office for Outer Space Affairs). The UNOOSA takes on the responsibilities and duties of the Secretary-General of the United Nations in the context of international space law; additionally, the enforcement of the aforementioned inter-governmental treaties rests with the UNOOSA, which works closely for the international collaboration between private entities, governmental agencies and inter-governmental institutions.
The UNOOSA acts as the secretariat to the ICG (International Committee for Global Navigation Satellite System, wherein the UNOOSA manages the UN-SPIDER (United Nations Platform for Space-based Information for Disaster Management and Emergency Response) to provide immediate satellite images of a disaster area as soon as the same has been requested by the disaster-stricken party to the treaty.
It can be seen that the five treaties provide for free, open-for-all and non-discriminatory international collaboration and cooperation for peaceful uses of space, wherein activities in space (inclusive of either the orbit or the surface of any celestial body) must be non-hostile and peaceful (restricted to scientific research and investigation).
Although the treaties expound on the criminal offences and civil damages caused by the parties to the treaty, it does not speak about the liability of individual personnel in space, i.e. individuals and private entities cannot claim for compensation under The Convention on International Liability for Damage Caused by Space Objects. It is worth mentioning that India is a party to all the aforementioned treaties except the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies where India is only a signatory.
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Doctrine of Extraterritoriality
The Doctrine of Nationality delineates two kinds of nationalities in the discussion of liability for crimes in space: Active and Passive. The Doctrine of Nationality empowers a sovereign nation to make legislative statutes that criminalize the actions of their citizens on foreign soil even if the said action is not illegal in the foreign country, i.e. A country X can criminalize an act even if Y, a citizen of X, commits the act in a nation where the act is not illegal.
Active Nationality upholds the conduct of its citizens outside the physical territory of the nation, wherein the Extraterritoriality extends the conventional concept of geographical jurisdiction of a nation. The capture of Adolf Eichmann in Argentina by the Israeli Security Forces to stand trial in the District Court of Jerusalem for his crimes against Jewish people during his time as the Referent of the Reich Security (RSHA) in relation to the Final Solution, was upheld on the grounds of Extraterritoriality of Israel’s Nazis and Nazi Collaborators (Punishment) Act, 1950.
It has been illustrated that the principle of Extraterritoriality can be applied by Israel only for crimes of an international nature under a nation’s international law even if Germany and Argentina do not specifically identify crimes against Jewish individuals as illegal (i.e. the actions of the accused were not illegal in Nazi Germany). Many Jewish people fled to the newly-formed State of Israel in the aftermath of World War II, wherein Israel used the principle of Extraterritoriality to punish the entities that committed wrongful acts against its newly-formed citizens.
It is worth noting that India identifies the principle of Active Nationality/ Extraterritoriality. Section 3 and 4 of the Indian Penal Code 1860, talk about Active Nationality and Extraterritoriality, wherein a person who has committed an offence under any Indian legislation on foreign land, will be held liable for the commission of the offence (Section 3) even if the offence was not committed within the physical territory of India.
Section 4 of the Indian Penal Code, 1860, extrapolate the ‘person’ under Section 3 to include not only the citizen of India but also a non-citizen of India who is aboard an aircraft that is registered in India. Section 188 of the Code for Criminal Procedure, 1973, supports the provisions under Section 3 of the Indian Penal Code, 1860, wherein not only a citizen of India outside the physical territory of India but also a non-citizen of India on an aircraft outside India that is registered in India, may be liable for an offence committed (under certain Indian legislation) whilst the individual was outside the territorial jurisdiction of India.
A combined reading of Section 4, Clause 1 of the Indian Penal Code, 1860, and Section 188, Clause A of the Code of Criminal Procedure, 1973, reveals that the phrases ‘without and beyond India’ and ‘or elsewhere’ respectively can be interpreted as the application of Active Nationality in space, wherein a citizen of India can be held liable for an offence under Indian legislation if the said offence has been committed in space when the legislation was in force.
The principle of Passive Nationality applies to the citizen of a sovereign nation who is injured by a foreign national whilst the citizen of the sovereign nation is outside the physical territory of the nation, i.e. if X and Y are citizens of two different sovereign nations and if Y commits an offence through action or omission against X under the domestic legislation of X’s country, then the nation of X can hold Y liable even if X was outside the physical territory of its nation when the alleged offence took place.
It is worth understanding that Active Nationality seeks to control the conduct of the citizen of a sovereign nation outside the physical territory of a nation, whereas Passive Nationality holds non-citizens of a sovereign nation accountable for any extraterritorial offence committed against the citizens of the sovereign nation whilst the latter is outside the physical territory of its sovereign nation. The founding case in Extraterritoriality is the aforementioned Eichmann case, wherein Adolf Eichmann was prosecuted for committing an offence under the domestic legislation of Israel (the Nazis and Nazi Collaborators (Punishment) Act, 1950) against its newly-formed citizens (Jews) whilst they were in Germany during the World War II; hence, the Eichmann case is a case in Passive Nationality.
In the case of the United States of America v. Yunis, 681 F. Supp. 896, 903 (D.D.C 1988), the defendant, a non-USA citizen was held liable by the court of the District of Columbia for hijacking a Jordanian passenger aircraft in June 1985 since the aircraft was carrying some citizens of the United States of America; additionally, the principle of Passive Nationality was upheld by the American court of law to protect the interests of its nationals in foreign lands.
In the case of the United States of America v. Benitez, 741 F. 2d 1312, (1984), the defendant, a citizen of Colombia was convicted by the American court of law for conspiring to kill the American officers of the Drugs Enforcement Administration in Colombia. The principle of Passive Nationality applies for the protection to the American agents on Colombian soil.
The principle of Passive Nationality can be traced back to the Cutting case of 1887 where Mr Cutting, a citizen of the United States of America published some criticizing material against a Mexican citizen in the Texan newspapers. The aggrieved Government of Mexico arrested the defendant whilst he was visiting Mexico under Article 184 of the Federal Penal Code of Mexico. Although Mr Cutting was released owing to the diplomatic pressure from the United States of America, the case became the first instance where Passive Nationality was used by a sovereign nation.
Section 4, Clause 2 of the Indian Penal Code, 1860, and Section 188, Clause B of the Code of Criminal Procedure, 1973, lightly touch upon the principle of Passive Nationality, wherein non-Citizens of India can be charged for committing any offence under any Indian legislation whilst they are aboard an aircraft that is registered in India, i.e. India can hold any non-citizen liable for an offence whilst they are aboard any space-related vehicle that is registered in India.
A broader interpretation of Passive Nationality (barring the limitation that the criminal offence must take place in an Indian vessel) was undertaken by the Supreme Court in the case of the Republic of Italy v. Union of India (2013) 4 SCC 721, wherein two Italian military personnel, Massimiliano Latorre and Slavatore Girone, were accused of the murder of two Indian fishermen whilst the two parties were in international waters. Justice J. Chelameswar upheld the principle of Passive Nationality since the extraterritoriality was based on the legitimate interests of India.
In a nutshell, Passive Nationality can be upheld by either Indian legislations or Judicial interpretations, wherein an offence committed by a non-citizen of India in outer space against a citizen of India under certain Indian legislations can be legitimatised if and only if India has legitimate interests in the prosecution of the non-citizens of India; however, if the offence is committed aboard an Indian space-related vehicle, then Indian legislation will apply.
Inter-governmental treaties promulgate the principle of Universality where certain offences like damage by space object under The Convention on International Liability for Damage Caused by Space Objects, is cohesively recognized by the consortium of parties to the treaty, wherein the parties to the treaty unequivocally consent to the jurisdiction of any party to the treaty to prosecute an individual for deviating from the principle of Jus Cogen in space law.
Inter-governmental space treaties do not include any clause for Universal Jurisdiction, wherein no offence under any space treaty is classified as an international offence. It is worth noting that the broader obligation to use space (including the Earth’s orbit and Celestial bodies) for peaceful purposes under the Outer Space Treaty, 1966, does not mention any legal recourse against any party to the treaty that violates the provisions of the treaty, i.e. the obligations are without legal enforcement.
The Convention on International Liability for Damage Caused by Space Objects is the only intergovernmental space treaty that provides a legal remedy for legal damage (damage caused by the space object of the Launching State); however, the treaty limits the accused to either the Launching State or the State whose negligent action or omission causes the damage; additionally, the only parties to the treaty that have the jurisdictional authority to claim compensation for the damages fall in either one of the following categories: a) The party to the treaty who suffers damage due to the space object of the Launching State, b) The party to the treaty who suffers damage within its territorial jurisdiction, and c) The party to the treaty whose permanent residents suffer damage due to the space object of the Launching State.
The animosity and the political tension surrounding the Cold War prompted the newly-formed United Nations to draft certain resolutions to fortify international cooperation for the non-hostile, non-discriminatory, non-militarized, peaceful uses of space and celestial bodies. Space legislations have mainly come from intergovernmental organizations like the United Nations and its sub-committees, COPUOS and UNOOSA since they are symbolic of its underlying goal (peace through international collaboration). It is worth understanding the Space Laws were introduced by the United Nations to avoid turning outer space into a new arena for a possible World War III for the then hostile super-states, the United States of America and the Soviet Union.
Space Laws provide a new frontier to the conventional theories of jurisdiction. Section 3 and 4 of the Indian Penal Code, 186, and Section 188 of the Code for Criminal Procedure, 1973, can be extrapolated to cover offences in space; however, the complete lack of specific space legislations within India makes it difficult to decide on what actions of citizens and non-citizens of India in space will amount to legitimate offences under the aforementioned laws.
Intergovernmental treaties are limited to a legal remedy for damage by a space object; not only the offences committed in a personal capacity but also the provision to claim for compensation in a personal capacity, need to be included in the aforementioned treaties. The increase in commercialization of space activities with the entry of private entities has caused us to rethink the restrictive absolute liability of the Launching State in Space Laws, wherein liability by private and non-governmental entities is absent in Space Laws.
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