What is the nationality of someone born in space? On the one hand, “nationality” is a multifaceted concept relating to the membership of one or a group of people in a cultural or political nation determined or possessing the will to exist. On the other hand, it is defined as legal proof of membership in a State. If the concept of nationality is not automatically confused with citizenship, these two terms can also be used as synonyms of one another, in everyday language as in official documents. “Citizenship” is the fact for an individual, for a family or for a group, to be officially recognized as a citizen, that is to say a member of a city having the status of city, or more generally of a State.
Outer space begins at an altitude of one
hundred kilometers, sixty-two miles or three hundred and thirty thousand feet
above sea level: the Kármán Line is
the most widely accepted demarcation point for the start of outer space, named
after Theodore von Kármán. Anything above this altitude would be considered
above the airspace of a nation and in the international arena of outer space.
Animals and insects took part in the space
conquest long before humans. Their characteristics and legal status allowed
these “pioneers” to create the
conditions necessary for the sending into space of astronauts, Yuri Gagarin,
the first of them, on April 12, 1961 (first human flight in space by a Soviet
At that time, space was the exclusive playing
field of space agencies, two superpowers that were the United States of America
and the U.S.S.R., and their respective allies. After the era of space conquest,
which marked the end of the Cold War, a second era saw the number of space
agencies increased as well as the launch of exclusively commercial rocket
launches. Finally, in 2002, a new actor called SpaceX came to play the troubles. It is one of two private
providers to which NASA has contracted to transport cargo to the International
Space Station (ISS). Other companies were born like SpaceLife Origin which caused a great media interest and for good reason;
its declared objective was then to target a “market segment of thirty million people” ready to send their “seeds of life” into space for fifty
thousand American dollars, or even to allow the first extraterrestrial birth.
Beyond the health risks, the possibility of an extraterrestrial birth
undeniably raises its share of legal questions.
What would be the nationality of someone born in space, of a baby born in weightlessness, four hundred kilometers away from the Earth? Should we consider different scenarios, based on the place of birth? Is there a difference to the citizenship of the baby, whether the birth occurs in a spaceship, in an international space station, on a futuristic lunar base, or on a colony of Mars? Should the nationality of the parents also be taken into account? As for the space conquest, we will begin by tackling the simpler case of nationality following the extraterrestrial birth of insects and animals, and then propose elements of response concerning the citizenship of a baby born from an extraterrestrial birth.
Regarding their legal status, insects are,
by analogy to be considered as “animals”.
“Most legislation around the world,
especially in the West, considers animals as goods, tangible objects that can
be bought or sold; like things produced for trade”. Furthermore, “most animals are considered to be products
or sensitive products”. There is no international regulation concerning the
legal status of research animals “which
is the closest state to that of animals – or insects – sent into space, as well
as their offspring”.
The convention that applies to insects,
animals and their offspring is the Convention on International Liability for
Damage Caused by Space Objects (1972) which speaks of space objects, just like
the Convention on Registration of Objects Launched in Outer Space (1975) which
specifies in its article I b) that “The
term space object includes constituent elements of a space object as well as
its launcher and its parts”. Consequently, taking into account the fact
that these living beings are part of missions and cannot be considered as
astronauts, they can be considered as part of their spaceship or module (ISS).
Finally, the term “space object” effectively triggers the application of a large part
of the Outer Space Treaty (1967) and the Rescue Agreement (1968). Article VII
of the first states that “Each State
Party to the Treaty that launches or procures the launching of an object into
outer space, including the Moon and other celestial bodies, and each State
Party from whose territory or facility an object is launched, is
internationally liable for damage to another State Party to the Treaty or to
its natural or juridical persons by such object or its component parts on the
Earth, in air space or in outer space, including the Moon and other celestial
bodies”. Let us also add that the property of objects launched into outer
space, including objects landed or constructed on a celestial body, and their
components, is not affected by their presence in space or on a celestial body
or by their return to Earth.
As a result, the responsibility lies with
the launcher and the State from which the rocket went. The nationality of space
objects, insects and animals as well as their offspring is linked to the
ownership of the vessel or capsule, or of the payload. Reference should be made
here to the commercial contracts for the on-board payloads on a case-by-case
basis. We can finally conclude by saying that these beings are considered to be
part of the space object and therefore, are space objects themselves. It should
be noted, however, that the legal status of animals and their descendants could
change in the coming years, notably resulting in a possible change in the
management of their nationalities. In this regard, Laura Lewis (NASA) said: “The institutional animal care and use
community is looking at the most humane alternatives for taking animals into
the wild space. The regulations for animal research are more restrictive than for
the use of people in research because people can give their consent. Animals
cannot oppose”. To conclude, in France for example, the legal status of
animals has evolved; the animals are today officially recognized as “living beings endowed with sensitivity”
and no longer as “movable property”.
Birth registration has long been useful to governments, allowing them to tax, conscript and count the population. Traditionally the responsibility of churches, it was only in the Nineteenth Century, in England and Wales, that birth registration became standardised, compulsory and subject to government control. A birth certificate is therefore a compulsory act and the first possession of a person. It is the foundation, all over the world, of legal, social and economic legitimacy. Birth certificates are also “a battleground” for debates on parentage, gender, identity and citizenship. In our case, we are concerned with the birth of a baby in space and the nationality of the latter. In order to clarify our case, what about births onboard an aircraft?
Most often, the child acquires the parents’
nationality. Only one text contains a provision concerning the nationality of a
child born in flight. According to the 1961 Convention on the Reduction of
Statelessness, a child born onboard a boat or plane will have the nationality
of the country in which the device is registered. But this text only applies if
the child is stateless, which is to say in very rare cases. There is also no
international convention regulating births in flight. To determine the
nationality of the infant, it is necessary to refer to the internal law of each
State. In France, for example, it is the law of blood, therefore the
nationality of the parents which prevails. A child is not considered to be born
in France because he was born on a French plane. A baby born in the air, who
has at least one French parent, will thus be French. Most countries operate on
this system. The United States of America has its own rights to the soil,
however it has adopted an amendment which stipulates that airplanes are not
part of the national territory if they do not fly over the country. Thus, the
baby will be able to obtain American nationality only if the plane flew over
the United States of America at the time of birth. If the mother gave birth
over the ocean, the baby will get the nationality of the parents.
Although there is no existing law
specifically dealing with “space-born
babies”, it seems that the citizenship laws that govern extraterritorial
births may be relevant. How these regulations apply will largely depend on the
nation that is responsible for the device or station. Or the nation that sent,
or controls, the device that served as the birthplace in outer space. Like a
court, before we can address the substantive issue of citizenship, we must
determine the jurisdiction and the laws that we must apply. Therefore, we will
refer here to everything above the Kármán line. Under Article II of the 1967
Outer Space Treaty, “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”. Consequently, from a jurisdictional point of view, the
territories of outer space act as international waters without property rights
or the possibility of operating freely. In fact, a birth in a territory
belonging to no one, the born individual would seem to be stateless at birth.
As mentioned above, continuing with the nationality of someone born in space, the precise place of birth would probably be a spaceship, a space station or a space base. Here, Article VIII of the Outer Space Treaty declares that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”. As a result, a nation would still be able to “claim” useful territories in outer space like its own, because humans cannot live in a vacuum. Thus, this baby may not be stateless if the nation “controlling” the place of birth has laws that automatically grant citizenship to babies born on its territories.
Nations granting citizenship based on the
country where the baby was born, jus solis,
like Common Law nations, have made their citizenship laws more restrictive over
time. For example, the United States of America does not consider its overseas
operations to be part of its territories. In the second school, we find the
nations that apply the jus sanguinis
form that examine the citizenship status of the baby’s parents to determine if
the baby would be eligible for citizenship in this country. In this context, we
can now move on to the main question: how could a space-born baby acquire
citizenship? Not surprisingly, like most legal responses, it really depends on
the circumstances of the birth. In this case, it is a “decision tree” analysis that begins with the simple question: which
nation controls the birth facility?
If the baby is born on a space station on
a ship or on a base in a country that operates according to the jus sanguinis model, this baby will most
likely inherit citizenship from the parents. Since citizenship is ground-independent,
the place of birth of outer space, although unique, should not affect the
citizenship status of this baby. If the baby was born on a space station on a
ship or on a base in a country that operates according to the jus solis theory, and such a nation has
no restrictions for these territories, then this baby would automatically
obtain the citizenship of this country under soil law. But if there are
restrictions, then we would need to determine if the baby would obtain
citizenship through other citizenship laws of that country, or if the baby
could obtain citizenship from the parents through the independent doctrine of jus sanguinis territory.
For example, concerning the nationality of someone born in space, a baby born in an American flag spacecraft would likely not have automatic U.S. citizenship through law of the land. In this case, we will then look at the citizenship status of the baby’s parents. If the baby’s parents are U.S. citizens, then under U.S. law, this would activate the baby’s parents’ marital status. If the baby’s parents have citizenship in a country that applies the jus sanguinis doctrine, then we will look to see if the baby can meet the citizenship requirements by birth of that country.
Thus, although outer space does not belong to any nation, the exact place of birth and the country which controls this space will be essential to define the citizenship of the newborn. If a baby born in outer space does not meet the requirements for obtaining the nationality of a country, that individual could become stateless. In this case, the United Nations Treaty on the Convention relating to the Status of Stateless Persons should come into play and provide protections for someone born in space. However, the treaty has only been signed by a few States, and most of them do not own spacecraft or send people in outer space. However, if such a birth was to occur, the baby would automatically become a celebrity and would have no risk of becoming stateless. This is what can be said concerning the nationality of someone born in space.
This article was written by Thomas DURAND (Paris-Saclay).