What is the nationality of someone born in space?

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 cosmonaut).

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).