In this decade and the next, astronauts will be going to space like never before. This will include missions beyond Low Earth Orbit (LEO) for the first time in over fifty years, renewed missions to the Moon, and crewed missions to Mars. Beyond that, new space stations will be deployed to replace the aging International Space Station (ISS), and there are even plans to establish permanent human outposts on the Lunar and Martian surfaces.
In anticipation of humanity’s growing presence in space, and all that it will entail, legal scholars and authorities worldwide are looking to extend Earth’s laws into space. In a recent decision, the Canadian government introduced legislation extending Canada’s criminal code to the Moon. The amendment was part of the Budget Implementation Act (a 443-page document) tabled and passed late last month in Canada’s House of Commons.
The Criminal Code of Canada already accounts for astronauts who may commit crimes during space flights to LEO and stays aboard the ISS. By law, any crime committed is considered to have been committed on Canadian soil. But with the Canadian Space Agency (CSA) being part of the Lunar Gateway project, the federal government has decided to amend the Criminal Code to extend these laws to cis-lunar space and the lunar surface.
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Extending the Criminal Code
The amendment was included in Part 5, Division 18 of the document, titled “Civil Lunar Gateway Agreement Implementation Act.” This section constitutes a Memorandum of Understanding (MoU) between the Canadian and U.S. governments regarding cooperation on the Lunar Gateway. Under the current Criminal Code, the law states that:
“[A] Canadian crew member who, during a space flight, commits an act or omission outside Canada that if committed in Canada would constitute an indictable offense is deemed to have committed that act or omission in Canada, if that act or omission is committed (a) on, or in relation to, a flight element of the Space Station; or (b) on any means of transportation to or from the Space Station.”
A similar provision is made for crew members of “partner states,” referring to NASA, the ESA, JAXA, Roscosmos (formerly), and any other national space agency participating in the ISS. According to the new amendment, the law now applies to any act or omission committed on the Lunar Gateway, while being transported to or from the Lunar Gateway, or on the surface of the Moon. In short, if you commit a crime anywhere between Earth and the Moon, you will be charged under Canadian law!
There are currently five international treaties governing activities in space, all of which are overseen by the United Nations Office of Outer Space Affairs (UNOOSA). Foremost among them is the Outer Space Treaty, signed in 1967 by the U.S., the Soviet Union, and the U.K., and has since been ratified by more than 100 countries (including Canada). This treaty remains the most relevant legal agreement regarding issues of sovereignty and dealing with alleged crimes in space.
In addition, the 15 governments that are part of the ISS program are required to abide by International Space Station Intergovernmental Agreement (IGA), an intergovernmental legal framework drafted between 1994 and 1998. The section dealing with Criminal Jurisdiction (Article 22) states that “Canada, the European Partner States, Japan, Russia, and the United States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals.”
However, if the victim of a crime was a citizen of a different partner nation or within that nation’s section of the ISS, their criminal law code could apply. As the document states, in these cases:
“In a case involving misconduct [in] orbit that: (a) affects the life or safety of a national of another Partner State or (b) occurs in or on or causes damage to the flight element of another Partner State, the Partner State whose national is the alleged perpetrator shall, at the request of any affected Partner State, consult with such State concerning their respective prosecutorial interests.”
The issue of space law came up in 2019 when NASA conducted the first criminal investigation of a crime committed in space. The alleged crime involved astronaut Anne McClain, who was accused by her estranged spouse of accessing their bank records during her six-month stay aboard the ISS. The investigation cleared McClain of any wrongdoing and her ex-wife (Summer Worden) was charged with making false statements to federal authorities.
The case raised awareness about issues that could arise in the near future and how the current state of space law was not equipped to deal with them. In addition, there have been growing concerns regarding legal agreements and liability arising from disputes over satellite mega-constellations, asteroid mining, and the commercialization of space. According to Ram Jakhu, a professor at McGill University’s Institute of Air & Space Law, these crimes could extend to:
“[M]urders in space, to hijacking of a space transportation vehicle, and to detonation of a nuclear device in space It would be logical and imperative that such rules are the same for all spacefaring humans, irrespective of the fact that they hold different Earthly nationalities.”
Canada & Artemis
As part of the Artemis Program, the Lunar Gateway is vital to conducting regular missions to the lunar surface and establishing the Artemis Base Camp. It is also a key component of NASA’s plan to send crewed missions to Mars in the next decade. The core elements of this modular space station – the Power and Propulsion Element (PPE) and the Habitation and Logicists Outpost (HALO) – are currently scheduled to be launched to lunar orbit by 2024.
This amendment is in keeping with the treaty signed by the CSA and NASA in December of 2020 that confirmed Canada’s participation in the Lunar Gateway. This treaty also confirmed that Canada will be part of the Artemis II mission (scheduled for May 2024), which will see a crew of four conduct a circumlunar flight before returning to Earth. The presence of a Canadian astronaut aboard this flight will make Canada the second nation in the world to send an astronaut to the Moon.
In addition, the Canadian government reaffirmed its financial commitment to the Lunar Gateway with the passage of the Budget Implementation Act. Among the many provisions, the budget acknowledges the commitment of $1.9 billion (announced in the 2019 budget) over 24 years to build and integrate the Canadarm 3 as part of the Lunar Gateway. Its predecessors (Canadarm and Canadarm 2) were featured on the Space Shuttle and ISS (respectively). Both proved invaluable in the construction and maintenance of the ISS and the docking-undocking of spacecraft.
This latest robotic arm consists of an 8.5-meter (~28 ft) main arm, a smaller and more dexterous arm, and a set of detachable tools. It is also highly autonomous and incorporates cutting-edge robotics and software to perform tasks that will assist scientific operations on and around the Moon without human intervention. In particular, it will be responsible for docking spacecraft coming from Earth and transferring vehicles to the Deep Space Transport (DST), which will be used to ferry astronauts to Mars someday.
With all of these activities on the horizon, it is little wonder why governments and space agencies are eager to establish binding legal frameworks that apply far beyond the jurisdictions of Earth.
Further Reading: CBC