The following is a guest post by Michael Chalupovitsch, a foreign law specialist at the Law Library of Congress covering Canada and Caribbean jurisdictions.
Canada is going to the moon, nearly 38 years after Marc Garneau became Canada’s first astronaut aboard the Space Shuttle Challenger. On June 23, 2022, the Canadian House of Commons adopted legislation to implement a memorandum of understanding (the text of the MOU is available free of charge from the Canadian parliament upon request) between the National Aeronautics and Space Administration (NASA) and the Canadian Space Agency (CSA) regarding Canada’s participation in the Civil Lunar Gateway project. Mr. Garneau, now a five-term member of the House of Commons, voted in favor of this legislation. Canada’s participation will consist of the Canadarm3 robotic arm (Canadarm was on the Space Shuttle and Canadarm2 on the International Space Station (ISS)). In return for contributing the Canadarm3, a Canadian astronaut will be included in the 2024 Artemis II lunar orbit mission, the first since the 1972 Apollo 17 mission, and another Canadian astronaut will fly to or around the moon. Canada will become the second country after the United States to have one of its citizens leave low-Earth orbit.
While much of the MOU concerns scientific cooperation and logistics, legislation was necessary to allow Canada to implement article 13 concerning crew members, and more specifically extending the jurisdiction of Canada’s Criminal Code to the proposed moon-orbiting space station and the lunar surface.
While the possibility of an astronaut committing a crime in space appears remote, international law has recognized the possibility. In 1967, the Outer Space Treaty, which now has 111 state parties including the United States and Canada, included article VIII which states:
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.
To that end, in 1981, Congress enacted amendments to Title 18 of the United States Code to extend U.S. special maritime and territorial jurisdiction to:
Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard.
Article 22 of the 1998 Intergovernmental Agreement establishing the ISS declares:
In view of the unique and unprecedented nature of this particular international cooperation in space: […] 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.
Accordingly, subsection 7(2.3) of the Canadian Criminal Code provides:
Despite anything in this Act or any other Act, 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 offence 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.
Charges under this provision require the approval of the Attorney General of Canada before proceeding.
Since Canada is not the owner or country of registry of the new Lunar Gateway space station, updates to the legislation are required to extend Canada’s criminal law jurisdiction to this new environment. According to the legislative summary (p. 51) prepared by the Library of Parliament, clause 296(4) of the bill, which was passed as part of an omnibus budget implementation bill, establishes:
That if a Canadian crew member commits an act or omission – that if committed in Canada would constitute an indictable offense – on, or in relation to, a flight element of the Lunar Gateway, on any means of transportation to or from the Lunar Gateway, or on the surface of the Moon, that act or omission is deemed to have been committed in Canada. If that act or omission is committed by a crew member of a Partner State, it is deemed only to have been committed in Canada if it threatens the life or security of a Canadian crew member or is committed on or in relation to, or damages, a flight element provided by Canada.
Media sources have reported on this provision of the bill as a curiosity, but also as a potential model for other space-faring nations. Nevertheless, the issue of crime in space has long been explored in academia, starting with the launch of the Sputnik satellite in 1957, and will need to be settled if there is to be a long-term human presence beyond our Earth.
Lee Seshagiri, Spaceship Sheriffs and Cosmonaut Cops: Criminal Law in Outer Space, 28 Dalhousie L.J. 473 (2005).
Vladimir Mandl, Outer Space Law: A Problem of Astronautics, translation of “Das Weltraum-Recht. Ein Problem der Raumfahrt,” J. Bensheimer Verlag, Mannheim, Berlin, Leipzig (Germany), 1932, pp. 1-48 in NASA Technical Memorandum TM-77760 (1984).
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