Enforcement Of Jurisdiction In Outer Space

Author: LawSphereX

Category: Evidence & Procedure

Published: 2026-08-23T19:39:36.445Z

Updated: 2026-08-30T07:11:33.122Z

ENFORCEMENT OF JURISDICTION IN OUTER SPACE

Aditya J Hiremath, O.P. Jindal Global University Arihant Jain, O.P. Jindal Global University

ABSTRACT

The rapid transformation of outer space into a domain of strategic importance, scientific exploration, and commercial opportunity raises significant legal and policy questions about jurisdictional enforcement. Traditional concepts of jurisdiction, heavily reliant on territorial boundaries, face challenges in the boundless expanse of outer space. This research delves into the complexities and nuances of enforcement of jurisdiction in space by examining international customary law and treaty law. It highlights the inadequacies of traditional jurisdiction principles—territoriality, nationality, passive personality, protective, and universality—in the context of space. The Outer Space Treaty (OST) of 1967, which governs space activities, prohibits national appropriation and emphasizes peaceful use.

However, it falls short of providing comprehensive solutions to jurisdictional dilemmas, particularly regarding crimes or disputes involving different nationalities aboard the International Space Station or during spacewalks. The study underscores the need for evolving international law to address these challenges, suggesting the reinforcement of existing treaties, creation of specialized courts, and fostering international cooperation to ensure a robust legal framework for the future of human space activities.

Introduction

Once a realm largely untouched by human activities, outer space has rapidly transformed into a domain of strategic importance, scientific exploration, and commercial opportunity. The concept of jurisdiction largely depends on the existence of territory, which brings forth important aspects of jus cogens norms, such as sovereignty. Questions about enforcing jurisdiction in outer space have risen to the top of legal and policy discussions as states and corporate entities explore this celestial frontier. The intricacies of governing activities in a realm where traditional legal boundaries are non-existent and international cooperation is paramount pose complex challenges that demand a thorough examination.

This research seeks to delve into the multifaceted subject of jurisdiction in outer space, by exploring international customary law and treaty law contexts of jurisdiction, that define the governance of activities beyond Earth's atmosphere. It hopes to do this by shedding light on an important facet of space exploration and utilisation that will greatly influence future human spaceflight activities. Principles of Jurisdiction in International Law. Jurisdiction refers to the power of an entity to enact and enforce a particular set of laws in a prescribed territory. In the context of public international law, jurisdiction is one of the quintessential elements which is essential in shaping international norms and customary international law.

States exercise their jurisdiction in a specific geographical location around the globe, jurisdictional governance brings forth the principles of sovereignty and noninterference in other states’ affairs within their jurisdiction. Since the concept of jurisdiction is heavily dependent on a set of geographical locations, how can a state enforce its jurisdiction in outer space? or can a state enforce its jurisdiction in outer space? What happens if a crime is committed in outer space, who will adjudicate upon that matter? “The notion of jurisdiction finds its origins in the concept of territory, the principle of sovereign equality, and noninterference with the domestic affairs of states, nations will have to use new and innovative legal regimes to exert legal controls over people in space”1.

To determine jurisdiction in space, let's first look at the principles of jurisdiction in international law which arise from customary international law.

1. Territory Principle - This principle is premised on the theory of sovereignty of states.

States have exclusive jurisdiction within their territorial extent.

1 IMRE ANTHONY CSABAFI, THE CONCEPT OF STATE JURISDICTION IN INTERNATIONAL SPACE LAW (1971),

http://link.springer.com/10.1007/978-94-015-0921-3 (last visited Oct 10, 2023).

2. Nationality Principle – The jurisdiction of a state is enforced on a person based on his

nationality.

3. Passive Personality Principle – The jurisdiction is determined based on the nationality

of the victim rather than the perpetrator.

4. Protective Principle – States have a right to claim jurisdiction over acts committed

outside its territory done by non-nationals if the act in question threatens its sovereignty.

5. Universality Principle – Jurisdiction can be enforced on perpetrators by any state who

have committed a particular crime which is severely inhumane and against the natural order. These 5 principles of enforcement of jurisdiction in international law cannot be applied to outer space in their basic form. To determine jurisdiction or even attempt to enforce jurisdiction, international law must evolve and adapt to the ever-changing technological developments of the human world. Determining jurisdiction in outer space. “While space law itself is not a coherent or self-contained body of law, its main source is international law”2. Currently, outer space is governed through the Outer Space Treaty (OST). Article 2 of this treaty states that “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, using use or occupation, or by any other means”.

3 By plain reading of this article, it is evident that a single state or group of states cannot arbitrarily or otherwise enforce jurisdiction in outer space. But then whose laws will be applicable in outer space, and if crime were to take place which criminal code and procedure code would apply? Jurists and Public International law scholars have somewhat answered this question. Since the current technology only allows humans to enter outer space in a space shuttle of a particular country, logically crime can only be committed within that close vicinity. Human society has not developed enough to worry about a substantive and procedural code to enforce laws in outer space. The scope of people committing crimes or tort in outer space is minuscule but not zero. As iterated above, even if such crimes or tort takes place in outer space, it will be inside the space shuttle.

In such cases, the flag jurisdiction principle can be applied to enforce laws and prosecute perpetrators. The Outer Space Treaty of 2 Philip Dann, The Future Role of Municipal Law in Regulating Space-Related Activities, SPACE LAW : VIEWS OF THE FUTURE / TANJA L. ZWAAN (ED. ), 125.

3 Outer Space Treaty, 2, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html (last visited Oct 10, 2023).

1967 has also explicitly mentioned the flag jurisdiction rule. Where it has stated that the

jurisdiction of adjudicating a matter will depend on the flag of the vessel. The vessel in this case will be the space shuttle. But this rule or principle of jurisdiction is only applicable if a tort or crime is committed inside the vessel. There are other instances where a crime or tort might not be committed inside a space shuttle. Such instances and answers to such questions are given below. A) If a crime or tort is committed inside an international space station where there is no flag of a particular state. The international space station is not owned by a single state and many astronauts usually reside inside this huge vessel. Since this vessel is not owned by a single state, there is no particular flag of a state associated with ISS.

The non-existence of a single flag leads to jurisdictional ambiguity because the principle of flag jurisdiction discussed above is no longer applicable. In such cases, if the crime takes place between two individuals of the same nationality, the answer is simple. The state, whose nationals are involved in the crime or tort will assume jurisdiction in such cases. But if a dispute or crime happens between two different nationals then there will be conflict in enforcing jurisdiction between the two states. In such cases, concurrent jurisdiction can be applied, this principle was iterated in the case of S. S. Lotus4. In this case, 2 vessels collided with each other on the high seas, and the people who were on board the Turkish vessel became victims of crime committed by French nationals, who were on board a French vessel.

The court reiterated the principle of flag jurisdiction, and in its judgement, it stated that, if such a collision happens, where a single flag does not exist in a prescribed area, concurrent jurisdiction can be invoked by states that are involved in the dispute. Similarly, the same principle of concurrent jurisdiction can be applied to problem A. If a dispute were to arise between the astronauts of Russia and the USA inside ISS, concurrent jurisdiction can be claimed. B) If a dispute were to happen between individuals of different nationalities outside a vessel. In the International Space Station, the astronauts often take routine walks outside the vessel in outer space to research or check the working conditions of the ISS. If a dispute were to arise during such routine walks, then jurisdictional questions are bound to arise. In this instance, the

4 Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (1927).

Nationality principle of jurisdiction can be applied. Wherein, jurisdiction is granted to a state whose national has become the victim of a crime or dispute. Sovereignty and exclusive enforcement of jurisdiction in outer space. “The OST was the initial treaty that was passed by the United Nations at the dawn of Space Exploration. One of its most important functions is to distinguish space as the province of all mankind. ”5 Moreover, the treaty contends that “the space shall not be subject to national appropriation by claim of sovereignty, using occupation. ”6 However, this principle or international rule does not preclude any state from enforcing laws or jurisdiction on personnel, vessels and institutions in outer space.

Hence, the OST has refrained from commenting on issues related to jurisdiction outside the ambit of space shuttles or vessels or on celestial bodies except to “designate international law as applicable to space activities”7. Thus the ambit of exercising sovereignty or exclusive jurisdiction in space is non-existent. “The OST establishes that the moon and other celestial bodies are to be used only for peaceful purposes. In light of this, it prohibits states from establishing military bases on the moon, which could have ramifications in the area of law enforcement. Additionally, the Moon Treaty prevents the Moon from becoming the private property of any state, international intergovernmental or nongovernmental organization, national organization or non-governmental entity or of any natural person even by the placement of structures on the moon”8.

After the OST was passed, the convention on the registration of objects launched into outer space was conducted, wherein, the registration of all such objects sent to space was made mandatory in an appropriate registry. This just adds to the OST by acknowledging that states may divide up authority over the space object through agreements reached between the launching states when there are many launching states. Outer Space Treaty as Customary International Law. Some points worth noting are raised in the discussion of the relationship between space law and customary international law, even if they are outside the purview of this work. First, Cheng envisioned an oxymoron to justify the viability of instantaneous customary law as the “Special

5 P.J. Blount, Jurisdiction in Outer Space

Challenges of Private Individuals in Space, 311 (2007).

6 Outer Space Treaty, supra note 3 at 1.

7 Helen Shin, “Oh, I Have Slipped the Surly Bonds of Earth”

Multinational Space Stations and Choice of Law,

78 CALIFORNIA LAW REVIEW 1375 (1990).

8 Blount, supra note 5 at 312.

nature of space activities may accelerate the formation of consuetude. ”9 The second one, which incorporates the principles of international space law in the absence of any persistent objector, takes the OST customary nature one step further while maintaining its jus cogens norms. In the context of customary international law and outer space, some noteworthy jus cogens norms are not exercising sovereignty in space, refraining from exercising exclusive jurisdiction in space and peaceful use of outer space and celestial objects. Concerning this, Tronchetti in his paper terms article 2 of the OST as a “structural norm, whose legal strength is in between customary law and Jus Cogens.

”10 Article 2 of the Outer Space Treaty reads as follows “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, using use or occupation, or by any other means”11. These Jus Cogens norms arose from the fact that space should be available for every state to explore and research. Commercialisation and annexation of space are against customary international law norms. Conclusion In conclusion, the enforcement of jurisdiction in outer space is an intricate and evolving challenge that encompasses a myriad of legal, diplomatic, and practical considerations. As humanity continues its exploration and utilization of the cosmic expanse, the need for a robust, adaptable, and harmonious legal framework becomes increasingly evident.

The Outer Space Treaty of 1967 provides a foundational basis for governing activities in outer space, emphasizing principles of freedom, non-appropriation, and international responsibility. However, it does not offer comprehensive solutions to the jurisdictional dilemmas presented by the unique nature of space. The absence of clear territorial boundaries, the proliferation of private enterprises, and the potential for military activities complicate the application of traditional jurisdictional principles. Addressing these challenges requires a multi-faceted approach. Strengthening and expanding international agreements, such as the Outer Space Treaty, can help provide clarity on property rights, liability, and jurisdiction. The establishment of specialized courts or tribunals can offer a platform for resolving disputes related to outer space activities.

Bilateral and multilateral 9 Diego Germán Mejía-Lemos, Some Considerations Regarding “‘Instant’ International Customary Law”, Fifty Years Later, 55 INDIAN JOURNAL OF INTERNATIONAL LAW 85 (2015). 10 Zachos A. Paliouras, The Non-Appropriation Principle: The Grundnorm of International Space Law, 27 LEIDEN JOURNAL OF INTERNATIONAL LAW 37 (2014).

11 Outer Space Treaty, supra note 3 at 2.

agreements can provide tailored solutions to specific issues. Transparency, information sharing, and confidence-building measures can foster cooperation and prevent misunderstandings.