Zac Dillon

Legal Issues of 21st Century- Space

4/21/12

What happens to the citizenship of a baby born in space?

“All persons born or naturalized in the United States ... are citizens of the United States.”

-U.S. Const. amend XIV

Every nation controls citizenship differently, but the United States has case precedent that is illustrative of what would happen if the baby (or its parents) tried to claim citizenship.

Nearly a century ago, the Ninth Circuit addressed the question of, whether a baby born to parents of Chinese nationals while on an American ship sailing the high seas, was a citizen by birth of the United States. Lam Mow v. Nagle, 24 F.2d 316, 317 (9th Cir. 1928). The answer was firmly “no” even though the parents had been domiciled in the United States and were merely returning from a brief visit to their homeland. Id.

[The child] is not without a country, but was born in allegiance to and under the protection of the Chinese government, with such temporary qualification only of the rights and obligations of that sovereignty as are recognized by the law of nations during the time the nationals of one country are being carried on the ships of another on the high seas.

-Lam Mow, 24 F.2d at 318.

The Department of State has addressed two analogous situations in its Foreign Affairs Manual, finding in both situations that a U.S. craft is not a part of the United States within the meaning of the 14th Amendment.

A U.S.-registered or documented ship on the high seas or in the exclusive economic zone is not considered to be part of the United States.

A U.S.-registered aircraft outside U.S. airspace is not considered to be part of U.S. territory. A child born on such an aircraft outside U.S. airspace does not acquire U.S. citizenship by reason of the place of birth.

-Immigration Law Service 2d PSD Foreign Affairs Manual 1113(a)-(b) (2012).

However, a child born on any ship within the territorial waters of the United States “is considered as having been born subject to the jurisdiction of the United States.” Immigration Law Service 2d PSD Foreign Affairs Manual 1113(d). For reasons discussed below, this is no help to a child born in space.

Owning space / Where can we put this satellite?

“Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
-Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, January 27, 1967.

International management of the use of the radio-frequency spectrum and orbits is entrusted to the International Telecommunication Union (ITU). The ITU Member States have established a legal regime, which is codified by the ITU Constitution and Convention, complemented by the Radio Regulations (RR) which enshrine the main principles and lay down the specific regulations governing the registration of satellite network frequency assignments. The Radio Regulations are revised partially or, in exceptional circumstances, completely by world radiocommunication conferences (WRCs) and constitute a binding international treaty.

-Henri, Yvon, Long-Term Efficiency of the Space Regulatory Framework, Space Services Dept., ITU Radiocommunication Bureau; http://www.itu.int/ITU-R/information/promotion/e-flash/2/article6.html

Shortly after the Outer Space Treaty of 1967 was signed (it currently has more than 100 signatories including Russia, China, Japan, the United States, India and most of Europe – nearly all of whom have ratified it) a group of eight equatorial countries sought a special exception for the Geostationary Satellite Orbit. Nayebia, Nima; The Geosynchronous Orbit and the Outer Limits of Westphalian Sovereignty, 3 Hastings Sci. & Tech. L.J. 471, 488 (2011).

The Bogata 8 - Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, and Zaire – saw the orbital arcs above each nation was a gravitational phenomena, making it a natural resource that could be controlled and exploited by the nation. Id. The Kenyan delegate at a meeting of the International Telecommunication Union argued that the GSO is part of its airspace, and should be exempt from the Outer Space Treaty. Id.

The ITO did not adopt this policy, but it did reserve some GSO spots for future use by as-yet-non-space-faring nations.

Damages from space objects

Convention on International Liability for Damage Caused by Space Objects

(ADOPTED BY THE UN GENERAL ASSEMBLY, 1972, with 90 nations currently party)

Article II

A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight.

Article III

In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.

Article V,

1. Whenever two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused.

2. A launching State which has paid compensation for damage shall have the right to present a claim for indemnification to other participants in the joint launching. The participants in a joint launching may conclude agreements regarding the apportioning among themselves of the financial obligation in respect of which they are jointly and severally liable. Such agreements shall be without prejudice to the right of a State sustaining damage to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable.

3. A State from whose territory or facility a space object is launched shall be regarded as a participant in a joint launching.

Are laws applicable in Space?

18 USC § 7 - Special maritime and territorial jurisdiction of the United States defined

The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes:

(6) 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.

(7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.

(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.

By the three provisions above, the United States Congress appears to have established that prosecution of certain crimes can be pursued against: people who are on a U.S.-registered spacecraft, people who commit crimes against a U.S. national in space, and people on a ship that took off from the United States. The crime of aggravated sexual assault, for example, applies to “whoever, in the special maritime and territorial jurisdiction of the United States” commits the crime. 18 U.S.C.A. § 2241 (West).

The Supreme Court has held, in applying a federal murder charge to a man who killed another on a U.S. ship in Belgian waters, that the criminal jurisdiction of the United States is wholly statutory. United States v. Flores, 289 U.S. 137, 151 (1933). The prosecution was a “constitutional exercise of the power of Congress to define and punish offenses occurring in American vessels while within territorial waters of another sovereignty.” Id. at 153.

The Court further found

In the absence of any controlling treaty provision, and any assertion of jurisdiction by the territorial sovereign, it is the duty of the courts of the United States to apply to offenses committed by its citizens on vessels flying its flag, its own statutes, interpreted in the light of recognized principles of international law.

Id. at 159.

That power comes from article III of the U.S. Constitution, which similar to the language of article I (specifying that Congress has the power to “define and punish piracies and felonies committed on the high seas”) specifies the high seas:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; ... to all Cases of admiralty and maritime Jurisdiction.

U.S. Const. art. III, § 2, cl. 1

It appears that 18 USC § 7, which applies certain laws to passengers on space craft would not have the same constitutional support as laws that are applied to passengers on ships navigating the high seas.