The legal status of astronauts

In this article on the legal status of astronauts, let’s summarise the international legal regime applicable to persons transported in outer space.

I. Qualification of persons transported in space – The legal status of astronauts

A) The right words

An astronaut could be described as a person who travels beyond Earth’s atmosphere, or a trainee for spaceflight. According to the Cambridge Dictionary, an astronaut is “a person who has been trained for travelling in space”. It is interesting to notice that, without going into details about the different terms used to refer to any person flying in a space object, there are already differences on the conception of the term astronaut. It can either be someone traveling beyond Earth’s atmosphere or someone training to travel beyond Earth’s atmosphere. Considering the fact that the frontier between Earth’s atmosphere and outer space is still subject to debate, what could be the term used to refer to someone flying on suborbital flights? Could we call any human flying on a space object an astronaut? We would therefore need to define, what some national space laws already do, at an international level, what is a space object.

When talking about the legal status of astronauts, according to which country the person flying/travelling to outer space or training to do so is, terms change. This originality of language, even though we are today witnessing a terminological neutralization echoing the international relationships’ gradual smoothing, especially between the United States of America and former URSS, illustrates the highly geopolitical, spatiopolitical and historical aspects of space conquest. Let’s not forget that Space Age started during the International Geophysical Year not as any scientific project but as a demonstration of strength by the superpowers of the time, and soon after continued as a military project (US military space’s budget is today still at least twice that of the civilian budget). Depending upon which space object or spacecraft the person will fly/travel on, different names will be used. The United States of America use the term astronaut. Former URSS and today’s Russia use the term cosmonaut. Europe uses the term spationaut. China uses the term taikonaut. India uses the term vyomanaut. Some African artists and politics have used the term afronaut. Some private companies have proposed the term touronaut to define a space tourist. After the flights of Valentina Tereshkova (URSS), Sally Ride (United States of America) or Claudie Haigneré (France), the terms cosmonette, astronette and spationette were proposed. We sometimes also find the words robonaut, moonnaut or lunanaut/lunarnaut, and bionaut (those working in the American Earth system science research facility located in Oracle, Arizona).

B) Legal qualification

The status of astronauts is enounced and organised both in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (entered into force on December 3, 1968).

Article V of the Outer Space Treaty states that “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. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle. In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts”.

In this article from the Magna Carta of space, different elements appear. The first one is the ethical notion of envoys of mankind in outer space. It means that in outer space, even though there is still a need to define where it starts from, astronauts are seen as representatives of humanity. It doesn’t mean that they will change or lose their nationality but simply that their actions are undertaken in the name of mankind. Given the fact that the Outer Space Treaty (1967) was signed during the Cold War, this notion of mankind is crucial; States and the UN have wanted to sacralise outer space and make it a supranational environment. As the traditional law of the sea requires it, astronauts must be helped, rescued or assisted, regardless of the international situation, their nationality or origin. As we explained earlier, astronauts depend on the State of registry of their space vehicle; let’s imagine that in a case of emergency, as seen in the 2013′ movie Gravity (where astronaut Ryan Stone is brought back on Earth via a Chinese Shenzou), the person would be returned to the State of registry of his/her space vehicle with which he/her travelled beyond Earth’s atmosphere or started his/her mission. Astronauts have also a duty to assist other astronauts. Finally, there is an international duty of supervision by observation according to which “States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts”.

The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968) came to complement the dispositions of the Outer Space Treaty’s Article V and states, Article 1, that “Each Contracting Party which receives information or discovers that the personnel of a spacecraft have suffered accident or are experiencing conditions of distress or have made an emergency or unintended landing in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State shall immediately: (a) Notify the launching authority or, if it cannot identify and immediately communicate with the launching authority, immediately make a public announcement by all appropriate means of communication at its disposal; (b) Notify the Secretary-General of the United Nations, who should disseminate the information without delay by all appropriate means of communication at his disposal”.

Article 3 enounces that “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. They shall inform the launching authority and the Secretary-General of the United Nations of the steps they are taking and of their progress”. This article talks about extending assistance, which is an interesting concept. The following articles treat about space objects and technical details.

Article 10 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) enounces that “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. States Parties shall offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the Moon”.

Article 11 of the SPACE STATION – Agreement between the UNITED STATES OF AMERICA and OTHER GOVERNMENTS signed at Washington January 29, 1998 (on which we will soon come back in a new article), states that “Each Partner has the right to provide qualified personnel to serve on an equitable basis as Space Station crew members. Selections and decisions regarding the flight assignments of a Partner’s crew members shall be made in accordance with procedures provided in the MOUs and implementing arrangements. The Code of Conduct for the Space Station crew will be developed and approved by all the Partners in accordance with the individual Partner’s internal procedures, and in accordance with the MOUs, A Partner must have approved the Code of Conduct before it provides Space Station crew. Each Partner, in exercising its right to provide crew, shall ensure that its crew members observe the Code of Conduct”.

C) Ethical qualification

The Outer Space Treaty (1967) really gives an ethical dimension to space exploration. It’s the first time that are used the terms “envoys of mankind”. Article V of the OST requires astronauts to be regarded as envoys of mankind. In this respect, doctrine has stated that mission they (astronauts) perform and the risks they incur justify the special standing and legal protection afforded to them. Yet, rather than attaching jurisdictional immunities for astronauts, there is a historical consensus that the term was only intended as a figure of speech. The final space law instrument to be adopted by the General Assembly of the United Nations, attempted to clarify the status of all persons in outer space. Under article 10 is specified that any person on the Moon is considered to be an astronaut.

II. Space tourism and the legal status of astronauts

International Space Law has today to face new issues, as a result of technological and political advances, especially that of commercial (as in non-scientific) activities, like Space Tourism. Are space tourists or touronauts envoys of mankind? With the recent flights of Virgin Galactic, the projects of companies such as Blue Origin or SpaceX, how is Space Law going to define those tourists or pilots flying those aerospace objects or sometimes space objects? Space tourism is space travel for recreational, leisure or business purposes. There are several different types of space tourism, including orbital, suborbital and lunar space tourism. 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. But the international legal regime of space law may not recognize space tourists as astronauts. 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. An astronaut has to therefore be a person + carrying out professional activities connected with the exploration and use of outer space or on a celestial body + performing those activities in accordance with the rules and principles of international law. These conditions are cumulative and not alternative. When one of the three conditions is missing, we can’t talk about an astronaut.

Another definition for astronaut, when analysing the legal status of astronauts, could be the following; 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. These conditions are again cumulative and not alternative. Article 10 of the Moon Treaty (1979) opens up the definition of an astronaut by simply enouncing that any person on the Moon should be regarded as an astronaut. This means that any company installed on the Moon could claim an astronaut status and the rights attached to it. By analogy, any person in outer space, inside or outside any spacecraft or space object, could be considered as an astronaut.

However, the Space Nations 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.

As a conclusion on the legal status of astronauts, it is important to understand that the legal status of astronaut is to evolve under the acceleration of outer space’s privatisation. In this New Space era, let us be able to propose an ever more up-to-date and precise Space Law in order to guarantee access to outer space to the greatest number of people and thus, our capacity to make outer space a new environment full of new perspectives. That is what we can say about the legal status of astronauts.