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5 Master and Commander? Administration of Justice in Space
‘The Way to Eden’: Environmental Legal and Ethical Values …
The deﬁning feature of a criminal law is that it is a prohibition accompanied by a
sanction. The effective punishment of interplanetary travelers is an issue that is
distinctly problematic. The uniquely remote nature of interplanetary space travel,
coupled with the rigorous selection of the astronaut grouping, means that none of
the usual models of criminological theory are effective at fully exploring or predicting the commission of crimes in space:
…until criminology comes up with a thorough understanding of the causes of crime in outer
space, the criminal justice system will lack the necessary theoretical tools to design a criminal
justice approach to effectively deal with these conflicts. (Hermida 2006, before n. 135)
Particularly problematic is the mechanics of investigation and punishment and
how they will be administered on an interplanetary space mission. It is the “prospect
of punishment which differentiates criminal proceedings from other state-sponsored
proceedings.” (Wilson 2014, 51). This, however, brings us to the ﬁrst deﬁnitional
obstacle when considering the administration of justice in outer space; who should
be considered ‘the state’ or sovereign authority and who should administer any
resulting punishment. Classical constitutional theory holds that there should be a
separation of powers,5 with the legislative body, the executive authority and the
judicial function being kept distinct and separate to prevent abuses of power
(Bradley and Ewing 2014).
Such a separation of the investigative and judicial roles within the conﬁnes of an
interplanetary space mission poses clear practical problems. Whilst popular culture
(particularly within the Star Trek franchise) tends to give unlimited authority to the
mission commander, this is problematic for two reasons. The ﬁrst is cultural; the
omnipotent commander approach tends to indicate a military structure with attendant codes of discipline. The experiences of the ISS would tend to suggest a
deliberate attempt to emphasize the civilian, peaceful nature of space exploration.
Indeed Article 1 of the IGA echoes Article I of the OST stating that the ISS shall be
a civilian, international space station for peaceful purposes. Second, and from the
perspective of administrating justice, concentrating the investigative function and
judicial authority in the same position would clearly be contrary to the separation of
powers principle that characterizes the majority of countries’ constitutions.
As has been shown in respect of the ISS, the nationality of the astronaut provides
the legal framework for the investigation and prosecution of criminal offences. This
would seem to be an unsatisfactory long-term solution, although given the distances
that humans can currently travel, it may be that this approach is likely to remain in
place for the foreseeable future. Irrespective of which ‘sovereign authority’ is
granted responsibility to investigate and adjudicate on criminal infractions by
The theory of the separation of powers is particularly signiﬁcant in respect of criminal justice as
the executive will be comprised of the police, who are responsible for the investigation of crimes
and they will work with prosecutors to build the case against a suspect. The need for the judiciary
to be independent from the executive is a fundamental requirement of the rule of law. For further
details of the operation from a UK perspective see Bradley and Ewing (2014).
crewmembers, there is a second element of punishment to consider. Here, the key
issue is that:
…as well as general questions of jurisdiction there are also questions of how to treat a
suspect before trial, and what, if any, punishment to administer while in space. (Redﬁeld
Punishment is, perhaps, the most problematic area of contemplation for the
administration of justice on interplanetary missions and one where there are few
obvious solutions. Given current (and foreseeable) engineering capability, living
space is likely to be at a premium on any interplanetary spacecraft. Redﬁeld (2004)
identiﬁes that the nature of such a craft means that individual space travelers will
already be conﬁned in a general sense. Restrictions of space mean that it does not
seem likely that provision for bespoke, isolated detention facilities will be made
given that living space will be at a premium on board interplanetary craft. The
principle tool of punishment (incarceration away from the main social group) would
seem to be inappropriate and unworkable. In addition, such isolation may be
impractical with the offender having duties vital to the success of the mission and
key to the survival of the other crewmembers. Other punitive sanctions, such as
ﬁnancial penalties, may be appropriate but of limited utility on a mission that may
take many years to complete.
The administration of justice, both in terms of investigation and punishment,
poses a number of signiﬁcant questions for long duration space travel away from
Earth. Despite the previously identiﬁed differences between life in LEO onboard the
ISS and conditions faced by interplanetary travelers, it is likely that the twin
approach adopted by the ISS, (that of an overarching code, coupled with
nationality-based jurisdiction) will be imported to any interplanetary mission. In the
event of serious criminality a course of action will be determined on a case-by-case
basis with reference to mission control on Earth. Whatever solution is adopted, it is
suggested that the issue of criminality is considered proactively as part of the
planning stage of an interplanetary mission. Otherwise mission control and those
onboard the ship will be forced to reactively consider how to deal with an event that
could adversely affect the mission.
Whose Crime Is It Anyway?
Whilst the issues of investigation and punishment pose difﬁcult questions for future
interplanetary travelers, the rigorous and intensive selection process for astronauts
can provide a robust, in-built defence against criminality. Despite the zeitgeistcapturing ‘Mars One’ project utilizing an open selection, it is axiomatic to say that
astronaut selection will remain highly competitive and selective (Norberg and
Steimle 2013 at p. 255). Those with a criminal record are likely to be ineligible and
‘The Way to Eden’: Environmental Legal and Ethical Values …
the initial vetting of astronauts at the stage of application works in concert with an
on-going programme of evaluation designed to ensure maximum compatibility with
others in the astronaut group. Harrison (2001), drawing on the psychological
studies in Antarctica of Edholm and Gunderson (1973), identiﬁes three qualities
which will undoubtedly reduce a propensity for criminal activity, speciﬁcally;
space farers who are capable of sustained high performance, who are emotionally stable and
who can get along with one another. (Harrison 2001, ch. 6 at n. 13).
All societies need a basic level of stability in order to function (Smith and
Natalier 2005) and long duration space travelers will be no exception. In the closed
community of an interplanetary space mission, this need for stability is underpinned
by the task-orientated nature of space flight. An explicit hierarchy reinforces this.
The commander of the mission is responsible for the safety of the crew and the
success of the mission. Each crewmember will have responsibility for an aspect of
the overall success of the mission. In addition, even the most mundane task
[identiﬁed by Harrison (2001 at Ch. 9) as repairing life support systems, vacuuming
ﬁlters and preparing food] assumes a mission-critical level of signiﬁcance.
Accompanying this will be a recruitment and selection process designed to ensure
maximum compatibility within the group. As Hermida states:
…the recruitment and training programs are so demanding and place such an enormous
emphasis on physical and mental conditions by keeping those that show “criminogenic”
characteristics or proclivity to commit crimes out of the recruiting process. (Hermida 2006,
after n. 95)
The selection process for interplanetary spaceflight is, inter alia, predicated on
maintaining a closed, harmonious group where anti-social behaviour and criminality are minimized (Harrison 2001 and Maschke et al. 2011). This does not,
however, eliminate the prospect of the commission of a crime. As Wilson (2014)
recognises, the use of criminal law is designed to be coercive, laying down the
barriers of behaviour that will be permitted and introducing punishments for
transgression. This leads to the obvious question in respect of long duration
interplanetary space travel as to what behaviour should be sanctioned as criminal.
Simester et al. (2013) have identiﬁed two broad conditions that should be met if
behaviour is to be categorized as criminal and sanctioned accordingly. First, the
activity concerned must be ‘sufﬁciently serious’ to warrant intervention, leading to
signiﬁcant levels of harm being suffered by others. If this duty is a positive one, to
safeguard others, the second criteria acts to constrain; the criminal law must be
shown to be the most preferable form of legal control. Crucially, they add one
important rider that; “the practicalities must be considered of drawing up an offence
in terms that are effective, enforceable and meet the rule of law” (Simester et al.
The idea that crimes should be introduced only when they are needed to prevent
harm runs throughout criminal theory. This is founded on the notion of autonomy,
as articulated by Mill in On Liberty, which holds that authorities may only punish to
prevent harm to others. In normal (terrestrial) society, the corollary of this is that,
beyond the constraints of the harm principles, individuals are free to behave in any
way they see ﬁt.6 In the conﬁnes of an interplanetary space mission, it is clear that
such a concept will in practice be subservient to the mission planning and the roles
and responsibilities of crew members within that plan. Given the hostile nature of
outer space and the requirements of the mission, there will be restrictions imposed
on the behaviour of the crew. Not all of these will be criminal, instead being
enforced by ‘softer’ codes of conduct and more informal, social processes within a
code of conduct. It is recognised that there is only a remote prospect of criminal
activity being a serious problem on interplanetary missions. Well-trained and
carefully selected astronauts should share a ‘common professional discipline’
(Redﬁeld 2004, 80) that means criminality is likely to be restricted to the realms of
the improbable. If the approach adopted by the ISS is extended to other forms of
space exploration, and the criminality of the astronaut is contingent upon her or his
nationality, there will be a clear body of jurisprudence with signiﬁcant areas of
commonality regarding laws preventing offences against the person, murder, sexual
offences and property transgressions.7
Notions of crime and punishment in respect of interplanetary missions can only
partially be dealt with via existing legal and regulatory regimes. The governance of
astronauts during long duration visits to the ISS is bespoke to the agreement that
established the Station. It is also predicated on the relative proximity of the ISS to
Earth. The unique human habitat of a spacecraft used for interplanetary space travel
means inevitably that there would need to be fresh consideration of any crew code
of conduct, even if the basic principles of liability remain. Establishing the need for
a reviviﬁed regulatory regime, therefore, requires consideration of the broader space
environment. It is contended that the type of harm that human activity could cause
to the delicate, pristine environment of outer space is potentially more far reaching
than any other consideration, including harm to other crewmembers. This discussion will, therefore now examine the need to embed environmental protection
within the fabric of rules governing human behaviour in outer space.
Criminal theory has long discussed the notion that conduct should only be criminalized if it
results in harm to another. This “Harm Principle” was ﬁrst articulated in John Stuart Mill, On
Liberty (1859). This principle was developed to include occasions where serious offence to others
arose from the conduct in Feinberg, The Moral Limits of Criminal Law (1984–1987); vol. 1, Harm
to Others (1984); vol. 2, Offense to Others (1985); vol. 3, Harm to Self (1986); vol. 4, Harmless
Wrongdoing (1988). It is not the purpose of this discussion to analyze these theories. For contemporary exposition of the competing issues see, Simester, Spencer, Sullivan and Virgo, Simester
and Sullivan’s Criminal Law Chapter Sixteen, The Moral Limits of Criminalization, pp. 643–669;
Wilson (2014), Ashworth (2009).
Art 22 of the IGA requires that each signatory to the IGA have to make sure that there is sufﬁcient
provision within their respective legal systems to categorize the crimes that are likely to be targeted
for prosecution (Farand 2004 at p. 76).
‘The Way to Eden’: Environmental Legal and Ethical Values …
Preserving the Pristine Environment:
Ecologically Driven Regulation
In considering notions of ‘harm’ and the foundation of criminal liability, the damage
caused by human space activity is an area to which one is unavoidably drawn. There
has been much written about the environmental impact of space activity. It is an area
that has seen, perhaps, the most signiﬁcant shift in normative values over the course
of human exploration of space within the twenty-ﬁrst century. Williamson (2006)
and Viikari (2008) both explore the fragility of the extra-terrestrial environment and
conclude that human activity has contributed to the degradation of the space environment threatening its sustained use. Contemporary discussions on the environmental impact of humans on outer space have tended to focus on the question of
dealing with space debris (Hobe 2012) and also potential damage to celestial bodies
due to speculative and commercial mining (Newman 2015a). Nonetheless, the actual
process of interplanetary travel will not be without an environmental impact. That it
will be immeasurably small, does not mean that it should be overlooked. As Welly
(2010) points out, early advances in space technology meant that human-made
debris was not considered as being problematic; yet now such debris is regarded as a
serious threat to on-going human space activity.8 The situation of interplanetary
travel cannot be discounted as posing similar risk.
One of the key difﬁculties in this area is the lack of explicit, hard-law attention to
environmental issues in outer space. This is a critical area of oversight, however;
that utilitarian and pragmatic approaches to space activity have sidelined any
attempts to provide meaningful new treaties (Newman 2015b). This has led to a
manifestation of the ‘tragedy of the commons’ where individual countries have
received beneﬁts from individual missions whilst damaging the ‘global commons’
(Welly 2010, 279). A lack of bespoke legally binding environmental provisions has
created a largely unfettered space environment. It is voluntary and non-binding
codes of conduct tend to predominate in environmental space regulation. The UN
Debris Mitigation guidelines cover the area of space debris (UN Ofﬁce of Outer
Space Affairs 2010).
The threat to other celestial bodies from human activity is even more fundamental than that posed by space debris. Accordingly, there are guidelines in respect
of planetary protection (Robinson 2006). Once an alien environment has been
contaminated, be it by a robotic probe or by human settlers, the environment has
been corrupted irrevocably. This will have two key impacts; ﬁrst it will limit
scientiﬁc study by providing a false positive reading of life (Butler 2006). Second,
there may be profound implications for any life that does exist should humanity
contaminate a biosphere. This is outside the area of contemplation for this inquiry,
but it is nonetheless an area that will need consideration as interplanetary travel
draws closer. When considering notions of harm, therefore, it is not only planetary
For consideration of the legal implications of Space Debris and especially issues regarding
liability for damaged caused by debris, see Listner (2012).
colonization and space debris that has an environmental toll. It is germane to this
discussion to consider the act of interplanetary travel and how this may have an
ecological impact. Robinson (2006) states that there is an increased awareness of
the importance of mitigating the environmental damage caused by human space
exploration. It is at this point that a dilemmatic choice emerges; is the harm caused
serious enough to justify a criminal sanction, with the attendant difﬁculties relating
to the administration of justice in outer space that such an approach begets?
There is clear justiﬁcation for sanctioning ecological harm to the space environment within criminal theory. Feinberg (1984, 11) states that harm refers to a
wrongful setting back to some protected interest, leaving that interest in a worse
condition than it otherwise would have been. Transposing this to astronauts on an
interplanetary space journey, the degradation of space would be seen as leaving the
protected interest of the space environment as being in a worse condition. It is
argued that prohibiting such harm would help in the balancing of pragmatic realities
against environmental imperatives. This echoes similar ethical debates in other
areas of environmental regulation, speciﬁcally surrounding the issue of climate
change. The Hardinian ‘tragedy of the commons’ outlined above means that to
ignore the threat of environmental damage caused by space travel is ultimately to
risk the safety of space travellers and the sustainability of future space activity.
Criminal behaviour might include a prohibition of ejecting anything from the craft,
imposing legally binding duties on crewmembers with responsibilities for craft
subsystems that might leak substances into space and a speciﬁc regulation dealing
with waste management on the journey.
The advantage of an enumerated list is that clear parameters can be set, detailing
the nature of prohibited conduct. The principle of nullum crimen, nulla poena sine
lege9 embedded in most legal systems holds that any criminal law must be drafted
so that an individual knows when they are committing an offence. The obverse,
however, is also true; enumerated lists of discrete offences means that anything
committed outside the scope of that list will be acceptable. Imposing a general duty
on crewmembers would, therefore, ‘future proof’ the underpinning environmental
ethic of a code of conduct, making it more pervasive than lists of offences which
may well be made obsolete due to advances in space technology. It may also be that
criminalizing discrete elements of environmental damage is not only unnecessary
but also, ultimately, counterproductive.
The preferred option to ensure such harm may be mitigated is by embedding
environmental protection within a crew code of conduct on interplanetary missions.
As stated above, ‘softer’ codes of conduct rely on more informal, social processes
that emphasize common values and shared goals. Those forming the code of conduct
might wish to impose speciﬁc conditional criteria, detailing exactly the type of
damage that should be prevented. There may, however, be a more general statement
imposing a duty on all crewmembers to minimize environmental damage caused by
interplanetary travel. The CCoC underpinned by a general environmental duty would
Literally translated as meaning ‘no crime, no punishment without law’.
‘The Way to Eden’: Environmental Legal and Ethical Values …
remove the adversarial nature of apportioning blame for an infraction and instead
embed a duty to minimize environmental damage on all aspects of the mission. The
history of space governance shows that early patterns of regulation tend to be sustained as normative behaviour. Given the earlier observations about the discipline of
professional astronauts, it is suggested that the creation of a duty to safeguard the
wider space environment could have enduring beneﬁts for future space travel.
Conclusion: To Inﬁnity and Beyond?
A human journey to another planet will soon become a reality. Such a journey
poses unique challenges for the regulation of the behaviour of the crew. Astronauts
will carry the legal burden of being envoys of mankind, a role as yet undeﬁned but
one that is sure to carry more weight in the context of interplanetary travel. The
rules governing conduct on the ISS, both the use of nationality to assign criminal
liability and the CCoC governing behaviour from ﬁrst selection provides a template
for regulation. Given the differences between activity in LEO and interplanetary
travel, this is only going to be a short-term solution. As technology develops and
human capacity to travel moves beyond Mars, new solutions will need to be found
regarding the administration of justice. There will need to be an effective separation
of the investigation of crimes in space from the judicial process. Punishment away
from Earth will also need to be considered.
More fundamentally, the basis of what behaviours should be criminalized in
outer space will need to be addressed. This inquiry has shown that the harm caused
to the delicate space environment by human activity could necessitate criminal
sanction. The ‘tragedy of the commons’ that has already beset LEO should not be
replicated in respect of interplanetary space travel. It is suggested, however, that
instead of longer-term criminalization, the creation of an overarching environmental
value system, within a reviviﬁed CCoC would embed ecological protection within
the planning, training and the day-to-day tasks of astronauts on board interplanetary
spacecraft. Making environmental protection a core value of those who travel to
other planets would provide a meaningful lodestar for them as envoys of humanity.
Establishing environmental protection as the normative position for astronauts will
reorient human space activity. Effective regulation on these early journeys of
exploration to another planet may yet show humanity the way to Eden.
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