One of the vexing issues facing international space law is the legal status of tourists who will take advantage of commercial spaceflight capabilities both sub-orbital and orbital as they become available. While these capabilities have yet to come on line, some providers are selling slots in advance to individuals who wish to experience sub-orbital flight. As part of their marketing, these providers tout their customers as future astronauts.
The problem with identifying these future voyagers as potential astronauts is that while the common definition of “astronaut” may seem to apply, the international legal regime of space law may not recognize them as such. As will be discussed, this presents a conundrum as to how these commercial space adventurers will integrate within the existing body of international space law. Within this discussion the term “astronaut” will be synonymous to “cosmonaut“.
What is an “Astronaut“?
The term “astronaut” has become so common it is assumed it is a fully-defined term. For example, the Merriam-Webster Dictionary defines “astronaut” as
“a person who travels in a spacecraft into outer space.”
This simple, one-sentence definition of “astronaut” is often cited but vastly simplified. From the standpoint of international law, what constitutes an astronaut is a little more complicated, in so much that it is not a defined term as it is a legal status. As such there is no firm test for the status of “astronaut“.
Consider the following functional test:
“From the point of view of international law, astronauts/cosmonauts are people who carry out professional activities connected with the exploration and use of outer space itself and on celestial bodies, in accordance with the rules and principles of international law.”
Breaking the conditions out, this test requires an “astronaut” to be:
- A person;
- Carrying out professional activities connected with the exploration and use of outer space or on a celestial body; and
- Performing those activities in accordance with the rules and principles of international law.
Government personnel fit easily into all the conditions set out in this test. However, while commercial customers would easily meet the first condition under this test, they would not meet the second condition because commercial participants involved in sub-orbital flight, orbital flight or any other commercial space activity will be paying customers and/or performing those activities for profit.
That is not to say all personnel involved in potential future commercial space activities would not meet second condition. Consider the recently passed commercial space bill that allows for the exploitation of mineral resources from asteroids and other celestial bodies under the guise of “use” per 51 U.S.C. § 51303. Arguably, future private personnel involved with the direct extraction of minerals on asteroids, the Moon and/or other celestial bodies arguably would be carrying out professional activities on a celestial body and, and if 51 U.S.C. § 51303 gains customary acceptance as “use” and not a property right, that would argue in favor of satisfying both condition 2 and 3 of this test for “astronaut“.
Another test for “astronaut” is offered by Yasuaki Hashimoto, which is attuned to the current body of treaty law and in particular the Outer Space Treaty. Under this test, for the legal status of “astronaut” to apply the person must be:
- in an object located in space
- conducting their activities for the benefit and in the interests of all countries
- regarded as an envoy of mankind in outer space.
Notably, this test, in particular condition #3, latches on to Article V of the Outer Space Treaty where:
“States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas.”
Like the prior test, government personnel easily meet the conditions, but while future commercial customers would meet the first condition, they would have difficulty overcoming the second and third condition since those engaging in commercial space activities are doing so for their own benefit, whether it be recreation or profit.
Ironically, using the prior commercial resource extraction example per 51 U.S.C. § 51303, it is notable the Moon Treaty of 1979 would provide the necessary legal authority for commercial personnel to meet the third condition under this test and potentially the second. Consider, Article 10.1 of the Moon Treaty:
States Parties shall adopt all practicable measures to safeguard the life and health of persons on the moon. For this purpose they shall regard any person on the moon as an astronaut within the meaning of article V of 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 as part of the personnel of a spacecraft within the meaning of the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.
Essentially, Article 10.1 of the Moon Treaty provides the necessary legal authority to elevate commercial actors to the status of “astronauts“. However, the United States, the Russian Federation and the People’s Republic of China have for the time-being rejected the Moon Treaty. Therefore, commercial actors under the jurisdiction of these nations could not benefit from this provision and the subsequent elevation to the legal status of “astronaut“. Conversely, commercial actors under the jurisdiction of a State that has ratified or acceded to the Moon Treaty could meet the third condition in this test. Moreover, given the other provisions of the Moon Treaty, these commercial actors could also meet the second condition of this test and enjoy elevation to the legal status of “astronaut“.
Hypotheticals aside, while these two tests for “astronaut” differ in their approach, the result is the same in that neither present or future space tourists, including those who traveled to the International Space Station on Soyuz flights sponsored by the Russian Federation, meet the conditions of the test.
On the other hand, another test for “astronaut“, which again focuses on a functional aspect, would look to astronauts as “those who engage in space flight, and those who train for space flight.” Government personnel would again fit into these tests, but whether commercial customers would is questionable. Consider those space tourists who flew to the International Space Station via the Russian Federation not only engaged in spaceflight, but received training at Star City beforehand. Therefore, commercial customers like Dennis Tito and Richard Garriot could be considered astronauts under this definition. However, future customers for sub-orbital and orbital flight who will be passengers would not receive this specialized training and therefore would not be considered “astronauts“.
That these short-comings of the test for “astronaut” for future commercial space tourists potentially leaves commercial space actors in legal limbo did not go unnoticed by Congress. Pursuant to the United States’ responsibility and jurisdiction under Article VI and VIII of the Outer Space Treaty, Congress specifically defined the legal status of these future actors within Title 51, Chapter 509, which is otherwise known as the Commercial Space Launch Act.
Specifically, Congress provided legal status for private entities engaged in licensed commercial space activities via 51 U.S.C. § 50902(2) whereby:
“crew” means any employee of a licensee or transferee, or of a contractor or subcontractor of a licensee or transferee, who performs activities in the course of that employment directly relating to the launch, reentry, or other operation of or in a launch vehicle or reentry vehicle that carries human beings.
and 51 U.S.C. § 50902(17) whereby:
“space flight participant” means an individual, who is not crew, carried within a launch vehicle or reentry vehicle.”
These two provisions remove commercial actors who would not otherwise meet the test for “astronaut” from legal limbo under international law and grants them legal status under domestic law.
The Significance to International Law
Why is the international legal status of “astronaut” significant? The answer is international space law contains legal duties for the rescue and protection of astronauts, which originate in Article V of the Outer Space Treaty and are exemplified in the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, or more commonly known as the Rescue Agreement of 1968.
The Rescue Agreement expands upon Article V and Article VIII of the Outer Space Treaty. It imposes a greater responsibility upon the signatories of the Outer Space Treaty to render assistance to astronauts and to return lost space objects to the state that launched it. The overriding intent of the Rescue Agreement is to persuade greater cooperation in space between nations and in doing so articulates two general legal obligations:
- States, or Contracting Parties as they are called, must take all possible steps to rescue and assist astronauts in distress and promptly return them to the their State of origin, i.e. launching authority; and
- States, upon request, provide assistance to launching authority in recovering space objects that return to Earth outside the territory of the Launching State.
It is the first legal obligation in the Rescue Agreement, which makes the legal status of “astronaut” significant. To be more specific, unless personnel are considered “astronauts” the legal obligations of rescue and assistance do not apply. Technically, this means because “crew” and “spaceflight participants” as defined by 51 U.S.C. § 50902(2) and § 50902(17) do not meet the legal test of “astronaut” other nations that are parties to the Outer Space Treaty and/or the Rescue Agreement are not legally obligated to assist the crew or spaceflight participants who may find themselves in distress.
Paradoxically, 51 U.S.C. § 50902(2) and § 50902(17) create a situation where NASA personnel, who would otherwise be considered to preemptively meet the legal status of “astronaut” and be entitled to the privileges and protections of Article V of the Outer Space Treaty and the Rescue Agreement, would be relegated to the legal identity of “crew” and/or “spaceflight participants” because of NASA’s plan to purchase seats on commercial spacecraft for ferry trips to and from the International Space Station. However, the recently passed amendment to 51 U.S.C. § 50902 grants NASA personnel ferried on commercial vehicles the status of “government astronauts“, which among other benefits, precludes any potential lapse in their status as “astronauts” and the protections afforded to them under international law.
Despite the strict reading of the Rescue Agreement as it applies or does not apply to private and commercial entities, crew and/or spaceflight participants would not be without recourse in the event of an emergency. There is agreement among space law experts that regardless of the lack of a legal obligation, States who are obligated under the Outer Space Treaty and the Rescue Agreement would likely extend support to commercial crew and spaceflight participants in case of distress if not out a moral obligation then at the very least to avoid public and political condemnation.
What is more, it is the opinion of some space law experts that the protections in the Rescue Agreement may apply not only to those holding the legal status of “astronaut” but to those whom the legal status would not apply.
The Outer Space Treaty was couched in terms that creates a presumption government personnel automatically acquire the legal status of “astronaut”. Despite this presumption, the Outer Space Treaty also recognizes the future participation of private individuals.
Consider the reference to private entities in the first sentence of Article VI of the Outer Space Treaty:
“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.”
Article VI continues in the second sentence to state:
“The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”
The two references to “non-governmental entities” in Article VI indicate an intent for the Outer Space Treaty, including the protections in Article V, to apply to private entities involved in space activities as well as government personnel. More to the point, it is the contention of some space law experts that the Rescue Agreement did does not preclude non-astronauts.
Consider Article 3 of the Rescue Agreement:
“If information is received or it is discovered that the personnel of a spacecraft have alighted on the high seas or in any other place not under the jurisdiction of any State, those Contracting Parties which are in a position to do so shall, if necessary, extend assistance in search and rescue operations for such personnel to assure their speedy rescue.”
The line of reasoning is while the term “personnel” in Article 3 does not expressly include non-government entities, i.e. private individuals, there is no evidence there was an intent to exclude them from the protections of the Rescue Agreement. If this is indeed the case, a customary reading of Article V of the Outer Space Treaty and/or Article 3 of the Rescue Agreement could be applied so that non-government entities performing space activities would have the international protections afforded in case of an emergency.
As commercial space activities move closer to reality, the question and import of the application of international protections like the Rescue Agreement to commercial entities will become apparent. However, instead of express modification of the current body of treaty law, acceptable customary interpretation of the applicability of measures like the Rescue Agreement to non-astronauts will be utilized as the means to adapt them. Furthermore, custom will serve as a likely tool to fill the gaps that will be exposed in the current body of international space law as commercial entities become more prevalent in the performance of outer space activities.