Outer Space: a possible save haven?

Outer space may become a place of succor or hiding to suspects who wish to evade prosecution and possible sentence for offences committed on earth. Many who are not aware of the prospect of outer space being a final frontier may seek to underplay what the environment has to offer to humans. The pristine environment offers rare natural resources, generating serious international discourse on the mining of the lunar surface. This is evident from a quick glance at the US Apollo programme, the Artemis Accord, and the Bogota declaration –  despite the provisions of Article 1 and Article 11 of the Outer Space Treaty and Moon Treaty, respectively.

Can human survive space not to talk of a suspect hiding there? In the past, space travel was limited to astronauts and cosmonauts. However, in recent years, an increasing number of civilians have reached the boundaries of outer space. Hence, free access to all areas of the environment is ensured in the major space law regimes. Article I of the Outer Space Treaty of 1967 is being utilized by not just space scientists, but by civilians – particularly businesspeople – interested in the commercialization of space. Therefore the only constraint an individual willing to travel to space may have is lack of money. Once you are able to afford the hundreds of thousands of dollars, then farewell! In the future, individuals may be able to travel to space for tourism, and lodge in a hotel. The first space hotel, Voyager Station is scheduled to open in 2027. So not only can an individual travel to space, there is also a place to lodge. We look forward to spaceports thriving as well as airports.

Since outer space is governed by international law, under whose authority are individuals when in space? The regimes regulating mankind’s activities in space do not envisage situations where private individuals, particularly those who try to escape prosecution for criminal acts committed on the surface of the earth, would be in space. Like any other international issues, envisaged parties are usually state parties and international governmental and non-governmental organizations. Hence, an individual in outer space is under the jurisdiction of the state of registry and not necessarily state of nationality. This, in effect, gives credence to the provision of the Registration Convention in Article II which mandates that, ‘when a space object is launched into earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain.’ What this means is that the state of registry of the space vehicle that the individual travels on is responsible for such individual.

This poses an interesting question: knowing that extradition is a function of (usually) bilateral treaties, which state will extradite a fugitive who is a national of a state (and where they committed the offence) where that state is different from the state of registry of the vehicle that took him to space?  Since there is no single treaty on extradition in international law, binding all states to accede to extradition requests from member states, recourse would be had to bilateral agreement on extradition between them. The situation would be further complicated where there is no such treaty between them, and the state of registry is not willing to enter into one or even accede to the request. Other issues are who should bear the cost of extradition; and in the absence of a request, can the state of registry unilaterally remove such a fugitive from space, a place belonging to everybody!

Dr Khafayat Olatinwo

Senior Lecturer, Kwara State University, Malete, Nigeria.

Dr Olatinwo is Vice President of the Space Law & Arbitration Association and a member of International Institute of Space Law.