What is space law – and space criminal law?
Juristically, the airspace above state territory is “domestic” in the sense of criminal law. However, this airspace ends at a certain altitude, where it becomes outer space. It is not clear where this boundary lies, but from an altitude of 80 kilometers, it is clear that space begins at 110 kilometers at the latest. This is not subject to any state sovereignty, is thus – at least spatially considered – not legally regulated.
If one asks for a space criminal law, the easy way is to think of space vehicles – these will be subject under international law to the sovereignty of the state for which they appear. It is therefore argued in the literature that one should explicitly extend the “flag principle” to spacecraft in §4 StGB and, moreover, that one should already do so in the interpretation. Otherwise, it applies to international space missions that each participating state has sovereignty over its property and its nationals.
Space law as a legal field currently exists probably more in legal theory than in practice. Serious problems arise in this context, which are currently still rather marginal: For example, on the protection of industrial property and the question of the protection of intellectual property of discoveries/inventions in outer space, which today can already partly be subject to national law.
Exemplary aspects of space law
Since there is no national space law, space law is part of international law. The core element is the Space Treaty of 27. 1. 1967.
Of course, the question of liability must somehow be clarified, at least fundamentally. Here, the Outer Space Ordinance and the Outer Space Liability Convention are to be mentioned. The here (roughly) conceived liability system provides for a strict liability or a fault liability, depending on the place of damage (earthly or in space).
War & Cybercrime
How do you deal with hackers – possibly also on behalf of the state – attacking systems in space, such as satellites? Or use satellites to target earthly targets via connections running over them?
Space Criminal Law
Is there an original space criminal law?
There is no real, original criminal law for outer space in the sense that there is a directly created criminal law for outer space. There are some, very specific, special rules, for example if one operates a satellite system without the required authorization, which generates data about the Earth with a particularly high information content, which constitutes an administrative offense (see for example § 28 I Nr. 1 Satellitendatensicherheitsgesetz, “SatDSiG”).
However, there is a bridge to national criminal law: In the case of criminal offenses with a special domestic reference, criminal liability “abroad” can arise via §5 StGB, in the case of expressly named and particularly serious offenses. The term “abroad” covers everything that is not German territory, and according to the prevailing opinion in the legal literature, outer space is included without any problems.
Cybercrime in space
RA JF specializes in cybercrime – of course, the connection to space, with communications and surveillance via satellites is perfectly obvious.
Attacks that are coordinated against the home country and are only carried out via the “tool” in space are certainly well within the reach of national criminal law. Cases will be exciting in which, at the same time, directly intended or not, damage is caused to the respective property in space by the attack – which was intended to cause damage elsewhere on Earth.
Commitment in space
Engagement in space is of strategic importance to nation states and especially to supranational entities such as the EU. Engagement in space is of strategic, economic and scientific importance to nation states and the EU as a whole. Neglecting this sector could lead to geopolitical, economic, and security disadvantages. It is therefore crucial to invest in space technologies and missions and to play an active role in space, in particular in the areas of
- Science and Research: Space offers unique opportunities for scientific research, from exploring other planets and stars to exploring Earth from orbit. This research can expand our understanding of the universe and lead to breakthroughs in physics, biology, and other sciences.
- Technological innovation: The challenges of space flight have led to numerous technological advances, many of which also have applications on Earth, such as in medical technology, communications technology and materials science.
- Economic Opportunities: Space offers economic opportunities ranging from satellite services to space tourism to the possible mining of resources on asteroids or other celestial bodies.
- Geopolitical and Strategic Significance: Space is a strategic area used for defense, communications, and surveillance. Active engagement in space can provide geopolitical advantages to a state or union.
- Environmental Monitoring and Climate Change: Satellites play a critical role in monitoring climate change, the oceans and the environment as a whole. They provide valuable data for developing strategies to protect our planet.
- Inspiration and Education: Space missions inspire people worldwide and foster interest in science, technology, engineering and mathematics.
- Dangers of Neglect: If states or entities like the EU neglect space, they could lose geopolitical influence while other actors expand their presence and power in space. Without their own space capabilities, countries or entities could become dependent on other states, whether for satellite services, space exploration, or defense. Moreover, the space industry is a growing sector with great economic potential. Lack of commitment could cost economic opportunities. Finally, space is becoming increasingly militarized. Lack of presence or capability in space could increase security risks.
Space travel by companies
It can be assumed that space travel in the future will be supported primarily by the private sector. At the same time, commercial spaceflight offers high economic value on the one hand, while on the other it is precisely for this reason that it is the focus of legislative attention. Germany, for example, has announced a Space Act to address the regulation of private spaceflight (see “Space Strategy” below). It is to be expected that this will focus from the outset on (IT) security, but also on sustainability in terms of environmental compatibility. It is foreseeable that the approval and testing effort in the EU will increase.
Anwaltskanzlei Ferner Alsdorf
Our law firm specializes in criminal defense and IT law, especially on issues of cybercrime and digital evidence – out of conviction. This website was created out of interest in the topic of space criminal law, which attorney Jens Ferner deals with.
Our Qualification: RA DF has been a specialist lawyer for criminal law for over 20 years; RA JF is a double specialist lawyer, commentator in a renowned commentary on the German Code of Criminal Procedure (StPO), trainee lawyer for the Higher Regional Court of Cologne + lecturer at the Lawyers’ Academy.
Space Strategy of the German Federal Government 2023
The German government has repositioned itself in 2023 and named its space strategy with key projects