Canada’s criminal laws now extend to Earth’s orbit and the Moon
In this decade and the next, astronauts will go into 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, jurists and authorities around the world are seeking to extend the laws of the Earth 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 the Canadian House of Commons.
The Criminal Code of Canada already takes into account astronauts who may commit crimes during space flights to LEO and stays on board 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 decided to amend the Criminal Code to extend these laws to cis-lunar space and the lunar surface.
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Extend the Criminal Code
The change was included in Part 5, Division 18 of the document, titled “Civil Lunar Gateway Agreement Implementation Act.” This section constitutes a memorandum of understanding between the Canadian and US governments regarding cooperation on the Lunar Gateway. Under the current Criminal Code, the law states that:
“[A] A Canadian crew member who, during space flight, commits an act or omission outside Canada that, if committed in Canada, would constitute an indictable offense shall be deemed to have committed that act or omission in Canada, if such act or omission is committed: (a) on or in connection with 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 from “Partner States”, in reference to NASA, 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, during transportation to or from the Lunar Gateway, or on the surface of the Moon. In short, if you commit a crime anywhere between the Earth and the Moon, you will be charged under Canadian law!
There are currently five international treaties governing activities in outer space, all of which are overseen by the United Nations Office for Outer Space Affairs (UNOOSA). The most important of these is the Outer Space Treaty, signed in 1967 by the United States, the Soviet Union and the United Kingdom, and since 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 outer space.
In addition, the 15 governments that are part of the ISS program are bound by the Intergovernmental Agreement on the International Space Station (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 over any element of flight who are their respective nationals.
However, if the victim of a crime was a citizen of another partner country or in the ISS section of that country, its penal code could apply. As the document states, in these cases:
“In a case involving a fault [in] orbit which: (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 Partner State concerned, consult with that State regarding their respective interests in the prosecution”.
The question of space law arose in 2019 when NASA conducted the first criminal investigation into a crime committed in space. The alleged crime involved astronaut Anne McClain, who was accused by her ex-husband of accessing their bank statements during her six-month stay on the ISS. The investigation cleared McClain of any wrongdoing and his ex-wife (Summer Worden) was charged with making false statements to federal authorities.
The case raised awareness of issues that could arise in the near future and that the current state of space law was not equipped to deal with them. In addition, there are growing concerns about legal agreements and liability arising from disputes over mega-satellite constellations, asteroid mining and the commercialization of space. According to Ram Jakhu, a professor at the Institute of Air and Space Law at McGill University, these crimes could extend to:
“[M]in space, the hijacking of a space transport vehicle and the detonation of a nuclear device in space. It would be logical and imperative that such rules be the same for all humans traveling in space, regardless of whether they hold different Earth nationalities.
Canada and Artemis
As part of the Artemis program, the Lunar Gateway is essential for conducting regular missions on the lunar surface and establishing the Artemis base camp. It’s also a key part of NASA’s plan to send crewed missions to Mars over the next decade. The core elements of this modular space station – the Power and Propulsion Element (PPE) and the Habitation and Logic Outpost (HALO) – are currently scheduled to be launched into lunar orbit by 2024.
This amendment is consistent with the treaty signed by CSA and NASA in December 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 perform a circumlunar flight before returning to Earth. Having a Canadian astronaut on board this flight will make Canada the second country in the world to send an astronaut to the Moon.
Additionally, 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 recognizes the $1.9 billion commitment (announced in Budget 2019) over 24 years to build and integrate Canadarm 3 as part of the Lunar Gateway. Its predecessors (Canadarm and Canadarm 2) were featured on the Space Shuttle and the ISS (respectively). Both have proven invaluable in the construction and maintenance of the ISS and in the docking and undocking of spacecraft.
This latest robotic arm consists of an 8.5-meter (~28-foot) main arm, a smaller, more dexterous arm, and a set of removable tools. It is also highly autonomous and incorporates state-of-the-art robotics and software to perform tasks that will aid science operations on and around the Moon without human intervention. In particular, it will be responsible for docking spacecraft from Earth and transferring vehicles to the Deep Space Transport (DST), which will one day be used to transport astronauts to Mars.
With all of these activities on the horizon, it’s no wonder governments and space agencies are keen to establish binding legal frameworks that apply far beyond Earth’s jurisdictions.
Further reading: Radio-Canada