Legal standards of space tourism: clarifying the status of space tourists as astronauts

Space tourism may as well be rocket science. This article recognize the inherent complexities and limitations of commercial space travel as well as the contemporary interest of civilians in exploring outer space for recreational purposes. It interrogate the laws vis-a-vis imperative measures needed to regulate orbital, suborbital and lunar flights which are the basic types of space tourism. This article further juxtaposes and analyzes the status of space tourists as well as the disparities in affiliating space tourists as astronauts and envoys of mankind within the meaning of the 1967 Outer Space Treaty (OST).

Introduction

Space tourism has become the new hub following the increasing interests of State and non-State actors such as corporations and individuals in the exploration and use of outer space. Accordingly, space tourism has become inevitable in determining certain issues in commercial space travel such as cost, liability, legal framework and safety of passengers, habitation in space stations, hotels and ports, conflict resolutions, etc.

Furthermore, considering the intention of non-governmental entities such as SpaceX, Virgin Galactic, Space for Humanity, etc. in carrying out space missions for purposes other than research, but also for recreational and business purposes, it is therefore expedient to address the legal structure necessary to regulate this field in other to circumvent disputes arising thereof.

What is Space Tourism?

According to Louise de Gouyon Matignon, in his article “Space Tourism Legal Aspect”, space tourism is space travel for recreational, leisure or business purposes, and includes orbital, suborbital and lunar space tourism. Succinctly, it entails commercial activities that offers members of the general public direct or indirect experience in outer space.

The Law and space tourism

Historically, the genesis of International Space Law began in 1959 when the United Nations in a bid to regulate space affairs established the United Nations Office for Outer Space Affairs (UNOOSA). UNOOSA works to promote international cooperation in the peaceful exploration of space and help establish legal regulatory to govern space activities. Commercial space travel and spacefaring activities such as space tourism falls well within the ambit of the organization. One of the earliest fundamental laws enacted to regulate space exploration is the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer space, Including the Moon and Other Celestial Bodies (also referred to as the Outer Space Treaty or OST).

To a large extent, the Outer Space Treaty considers commercial space activities and space travel to fall only within the jurisdiction of States. Article VI of the aforementioned treaty provides that state parties shall bear international responsibility for national space activities whether carried out by governmental or non-governmental entities. The treaty also regards astronauts as envoys of mankind and emphasis on the need for space exploration to be done for the benefit and interest of all mankind. Questionable, does space tourism promote the interest of all mankind or the interest of space tourists? Can space tourists be regarded as astronauts in outer space? These are some of the questions the treaty failed to address.

In 1975, the United Nations adopted the Convention on Registration of Objects Launched into Outer Space (Registration Convention). This convention obligates Launching States to furnish certain necessary information to the United Nations with details of all objects launched into Earth orbit or into outer space. Article IV of the Registration Convention specifies certain information required to register a space object. Article I defines a space object to mean component part of a space object as well as its launch vehicle and parts thereof.

Prof. Bin Cheng described a space object as man-made object that is launched or intended to be launched into outer space. He noted that members of the United Nations Committee on the Peaceful Use of Outer Space (COPUOS), during negotiations over the Space treaties, treated spacecraft and space vehicles as space objects. Thus, vehicles use for space tourism purposes are subject to registration within the regulatory framework of the Registration Convention.

In a bid to promote the peaceful exploration and use of outer space, certain spacefaring nations developed space regulations to regulate their own space activities and agencies to enforce the said regulations. Most of these legislations contain certain laws governing space tourism affairs. Some of these agencies and regulations includes: the U.S. Commercial Space Launch Amendments Act, the European Union Aviation Safety Agency, the National Aeronautics and Space Administration, the National Space Research and Development Agency, etc.

It is pertinent to note that the law applicable to space tourism is significantly subject to two main criteria:

1) Ratione loci: this is linked to the place where the transport is provided;

2) Ratione materiae: this is linked to the means of transport.

However, space law is still a developing field of law and it is hoped that subsequently, well detailed laws will be enacted to fill the lacunae that still exist in this area.

Are space tourists astronauts?

The issue affiliating space tourists as astronauts began nineteen years ago when Dennis Anthony Tito, popularly known as the first space tourist, funded his own trip as a crew member onboard the Soyuz spacecraft to the International Space Station (ISS) on a visiting mission in mid-2001. Only after an intense deliberation process by the five nations responsible for the ISS, was Dennis Tito granted access to the ISS subject to certain major restrictions placed on him.

Prior to his flight, pertinent objections were raised as to his incompetency and inadequate training to undertake such orbital mission. NASA stated in a press release that “the presence of a non-professional crewmember who is untrained on all critical station systems, is unable to respond and assist in any contingency situation which may arise, and who would require constant supervision, would add a significant burden to the expedition and detract from the overall safety of the International Space Station”.

Tito’s trip and subsequent space travels by other tourists such as Mark Shuttleworth (April 2002) and Gregory Olsen (October 2005) began to raise questions as to the capacity and status of space tourists. Could a space tourist undergo adequate training to be called an astronaut? Is the title astronaut affiliated only to space-trained professionals? The opinions on this subject differs and has been succinctly discussed below.

Proponents of the view that space tourists are not astronauts are of the opinion that the definition of the term astronaut does not include non-trained people versed in the practicality of space flights. For instance, the Webster Universal Dictionary defines an astronaut as “one trained to make space flight in outer space” and the Oxford Advanced Learners Dictionary defines an astronaut as “a person whose job involves traveling and working in a spacecraft”. Exponents of this view concede to the fact that space tourists could be trained to undergo space flights but to the extent were they do not have the full training, they therefore do not have the skill set or knowledge base of an astronaut. Thus, they are not astronauts.

An international legal definition stated by Prof. Elena Kamenetskaya provides that an astronaut is a person who is: 1) carrying out professional activities connected with the exploration and use of outer space or on a celestial body, and 2) performing those activities in accordance with the rules and principles of international law. Alex Li refers to this definition as the Consummate Professional Approach which entails that space tourists are not astronauts since they engage in leisure rather than occupational activities during such space flights. Yasuaki Hashimoto noted that a person must satisfy three requirements to be regarded as an astronaut: the person 1) must be in an object located in space, 2) conduct activities for the benefit and in the interest of all countries, and be 3) regarded as envoy of mankind in outer space.

Yasuaki Hashimoto’s requirements, especially the second and third, are inspired by the provisions of the 1967 Outer Space Treaty of which Article I provides that the exploration and use of outer space shall be carried out for the benefit of all countries. On the other hand, Article V provides that space parties to the treaty shall regard astronauts as envoys of mankind in outer space. Alex Li refers to Hashimoto’s definition as the Exemplary Model Approach noting that an astronaut is an exemplary model of humanity, engaged in selfless service as a representative of mankind. To summarize, it is unlikely that space tourist would be regarded as astronauts or envoys of mankind from the above perspectives. This is because in most cases, space tourists are likely to be visiting outer space for their own benefit rather than for the benefit of all mankind.

Francis Lyall and Paul Larsen provided a legal definition of an astronaut to require two elements: an element of training and an element of altitude. Importantly, there must also be an element of selection. Alex Li refers to this approach as the Specialized Worker Approach which requires that an astronaut must be selected and trained. Space tourists can arguably be regarded as astronauts under this approach since applications can be made by persons to space faring companies in other to embark on a space mission through necessary selection processes and training.

However, Francis Lyall and Paul Larsen actually objected to this classification. They noted that the selection element in this legal definition requires something more than just basic qualifications to satisfy the selection element. Further requirements of professional standards may be needed to fulfill the selection process. Thus, this legal definition also appears to restrict space tourists from being regarded as astronauts.

In another view, exponents of this perspective rely on the provision of Article V of the Outer Space Treaty (OST), which provides that States parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them assistance in times of distress or emergency landing. They believe that within the sphere of outer space activities, astronauts have the status of diplomats; hence the humanitarian basis for assistance, during times of distress. Although the term astronaut was not defined by the OST, jurists have opined that the term should be interpreted broadly not just to mean a person trained to make rocket flights into space, but also persons who are employed on a spacecraft on a mission, and who are serving the same purpose in aid of the voyage, such as engineers or scientists capable of carrying out scientific experiment.

Furthermore, supporters have argued that the purpose of Article VIII of the OST is to establish jurisdiction and control over the object and persons thereof when they are in outer space, therefore, it has been posited that whatever status of the person onboard the spacecraft, be it engineer, scientist, tourist, etc. is not important. What is important is to regard persons on board a spacecraft as envoys of mankind.

It should be noted that Article 10 of the 1979 Moon Agreement emphasizes that State parties should 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 1967 Outer Space Treaty and the 1975 Rescue Agreement. Frans von Der Dunk, in explaining Article V of the OST, illustrates that the word astronauts in all space related treaties has a wide definition to include any person on the Moon and other celestial bodies.

Supporters also relay that under the Vienna Convention on the Law of Treaties (VCLT), it is required that in the determination of the ordinary meaning of a word, it should be guided by the “context”, “object” or “purpose” of the Treaty. Thus, in view of the sentiment that prompted the 1975 Rescue Agreement, it should be interpreted in an all-encompassing manner as to include all persons on board a spacecraft or space facility and this will include passengers such as space tourists.

Supporters of this view argue that it will be in total disregard of the humanitarian basis of the Treaty to consider only astronauts in the strict sense of the term as those fit for rescue in such situations, therefore the term should be all encompassing to fit space tourists.

Proponents argue that the Vienna Convention on the Law of Treaties (VCLT) also permits the use of Travaux Préparatoires (and other supplementary means of interpretations) to determine the meaning of a term, if the attempt to interpret the term according to its ordinary meaning still results in ambiguity. Hence, this rule of interpretation allows a meaning to be ascribed to a term that is not its ordinary meaning. This approach offers the possibility of interpreting personnel broader than it is normally understood. This principle is stated in Article 32 of the VCLT. This outlines the strongest argument for the induction of space tourist as those who are owed the humanitarian obligation of assistance in outer space, thereby adopting an expansive definition of personnel. If this interpretation were not put into practice, States will be required to rescue the crew but could leave the passengers behind. A narrow interpretation of the provision will only lead to absurdity and a position that jeopardizes the intention of state parties to the Treaty.

The international community and the United Nations have put in commendable efforts in the progress of international space laws regulating space tourism. However, they are implore to set up unambiguous legislations that would rectify the lacunae embedded in most treaties especially those concerning the status of space tourists. Furthermore, the growing interest of spacefaring nations and non-State actors in colonizing outer space makes it absolutely imperative for stringent guidelines and procedures to be enacted and implemented, so as to consolidate the non-appropriation of outer space and the principle of res communis.