The legal status of biosatellites and their payloads

I recently heard for the first time the term biosatellite. Biosatellites are a special type of satellites taking living organisms (plants, animals, organisms…) into outer space for the study of their behaviour. Both the USSR and the United States of America have sent living beings in outer space at the beginning of the Space Age. And they still do today. In fact, whether it’s France sending cats in outer space in the 1960s or the Democratic Republic of Congo sending (or trying to) a rat in Low Earth Orbit in the 2010s, most space powers have used living beings, usually mammals, as outer space guinea pigs.

The beginning of the Space Conquest was the launch of fruit flies aboard a German V2 rocket, at an altitude of roughly one hundred kilometres, by the United States of America on February 20, 1947. Packed into a container with seeds of corn, the flies were used by the U.S. to test the effects of radiation on DNA in preparation of human space flights. The flies returned to Earth in rude health, opening the doors to more ambitious animal/insect test flights.

Recently, the Chinese Chang’e 4 lunar exploration mission, which achieved the first soft landing on the far side of the Moon, carried onboard the Lunar Micro Ecosystem, a three kilograms sealed biosphere cylinder with seeds and insect eggs to test whether plants and insects could hatch and grow together in synergy. The experiment included six types of organisms: cottonseed, potato, rapeseed, Arabidopsis thaliana (a flowering plant), as well as yeast and fruit fly eggs. This outer space farming experiment was terminated after nine days due to an external temperature drop.

Those experiments raise a lot of legal questions or space law questions which we believe should be studied. For example, what distinguishes a biosatellite from a spacecraft: isn’t the ISS world’s biggest satellite? Was Sputnik 5, carrying aboard the two dogs Belka and Strelka, a satellite or a spacecraft? Why is Vostok 1 (and especially Vostok 3KA), carrying Gagarin into outer space, a spacecraft and Sputnik 5, carrying Belka and Strelka, an artificial satellite or biosatellite? Also, why are human beings sent into outer space considered envoys of mankind and two tortoises travelling to the Moon on a Soviet Zond 5 satellite considered payload of a space object? Are those space law questions and sometimes ethical questions enabling us to understand better “Man’s vision of what the cosmos’ conquest should be”?

I thought it would be good to present in this Space Legal Issues article what biosatellites are, present a few of the most famous missions/programs, and finally, ask ourselves about biosatellites’ legal status. Are those biosatellites spacecraft or satellites? Are they space objects? Is the biological matter considered a payload of the space object and therefore a space object itself? Are those living beings envoys of mankind?

I. Biosatellites

Biosatellites are artificial satellites (an artificial object which has been intentionally placed into orbit; such objects are sometimes called artificial satellites to distinguish them from natural satellites such as Earth’s Moon) designed to carry plants or animals in outer space. Biosatellites are used to research the effects of outer space (cosmic radiation, isolation, weightlessness…) on biological matter while in orbit around a celestial body, usually the Earth or the Moon. Let’s now look at some of the most famous biosatellites.

NASA’s Biosatellite program

NASA launched three biosatellites (and not spacecraft) named Biosatellite 1 (which disintegrated on February 15, 1967), 2 and 3 between 1966 and 1969. NASA’s Biosatellite program was a series of three biosatellites to assess the effects of spaceflight, especially radiation and weightlessness, on living organisms. Each was designed to reenter and be recovered at the end of its mission. Its primary goal was to determine the effects of space environment, particularly weightlessness, on life processes at three levels of organisation: basic biochemistry of the cell; structure of growth of cells and tissues; and growth and form of entire plants and animals.

The Biosatellite 2, also known abbreviated as Biosat 2 and as Biosatellite B, was the second unmanned artificial satellite belonging to the U.S. Biosatellite program for biological research. It was launched on September 7, 1967 by a Delta G rocket from the Cape Canaveral Air Force Station Space Launch Complex 17. The Biosatellite 2 carried thirteen biological experiments involving insects, frog eggs, plants and microorganisms.

The biological capsule of the Biosatellite 3 re-entered on July 7, 1969. The intent had been to fly a six kilograms male pig-tailed monkey named Bonnie in Low Earth Orbit for thirty days. However, after only nine days in orbit, the mission was terminated because of the subject’s deteriorating health.

The Soviet Bion satellites

The Bion satellites, also named Biocosmos, is a series of Soviet biosatellites focused on space medicine. They are part of the Kosmos satellites. The Soviet biosatellites program began in 1966 with Kosmos 110, and resumed in 1973 with Kosmos 605. The Bion program, which began in 1966, included a series of missions that flew biological experiments using primates, rodents, insects, cells, and plants on a biosatellite in Low Earth Orbit (LEO).

Kosmos 110 was a Soviet spacecraft launched on February 22, 1966 from the Baikonur Cosmodrome aboard a Voskhod rocket. It carried two dogs, Veterok and Ugolyok. It was a biological satellite that made a sustained biomedical experiment through the Van Allen radiation belts with the dogs Veterok and Ugolyok. On March 16, after twenty-two days in orbit around the Earth, they were safely landed.

Kosmos 605 or Bion 1, was a Bion satellite (based on the Soviet military photoreconnaissance satellite Zenit, launched by the Soviet Union between 1961 and 1994). Kosmos 605 was the first of eleven satellites Bion. It carried several dozen male rats, six Russian tortoises, a mushroom bed, flour beetles in various stages of their life cycle, and living bacterial spores. It provided data on the reaction of mammal, reptile, insect, fungal, and bacterial forms to prolonged weightlessness. The satellite, launched by a Soyuz-U rocket flying from Site 43/3 at the Plesetsk Cosmodrome, orbited the Earth for twenty one days until their biological capsule returned to Earth on November 22, 1973.

The Mars Gravity Biosatellite

The Mars Gravity Biosatellite was a project initiated as a competition between universities in 2001 by the Mars Society. The aim was to build a spacecraft concept to study the effects of Mars-level gravity on mammals. The program ended in 2009.

The Orbiting Frog Otolith

The Orbiting Frog Otolith (OFO), part of the research program of NASA’s Office of Advanced Research and Technology (OART), was a NASA space program which sent two bullfrogs into orbit on November 9, 1970 for the study of weightlessness. The name, derived through common use, was a functional description of the biological experiment carried by the satellite. Otolith referred to the frog’s inner ear balance mechanism (a structure in the inner ear that is associated with equilibrium control: acceleration with respect to gravity as its primary sensory input). One of the goals of the OART was to study the vestibular system function in space and on Earth. The experiment was designed to study the adaptability of the otolith to sustained weightlessness, to provide information for crewed space flight.

II. Their legal status

The status of biological matter in outer space

Let’s now have a look at biosatellites and their legal status. Scorpions, sea urchins, newts, ants, stick insects, beetles, jellyfish, cockroaches, dogs, monkeys, frogs, fish, turtles, flies, mice, and even flying bats. All paved the way to outer space for humans. Since the Montgolfier brothers organized in 1783 the first flight of a hot air balloon with a duck, a rooster and a sheep in its basket, animals became true pioneers of the space conquest.

In 1948, Rhesus macaque Albert I was the first mammal to discover weightlessness in an American rocket. Its trip sent it to an altitude of sixty-three kilometres. Unfortunately, on its way back, the parachute did not work and the capsule crashed to the ground. Although Albert I suffocated during the flight, thereby raising questions about the safety of space travel, its successor, Albert II, met with a more successful fate, returning to Earth unharmed.

Marfusha (Little Martha) was the first rabbit launched into space. Along with its sidekicks, the dogs Otvazhnaya (Brave) and Snezhinka (Snowflake), the trio returned from their Soviet-backed suborbital flight in good health in 1959.

On November 3, 1957, the Soviet space dog Laika, on board the Soviet spacecraft Sputnik 2, became the first living being in the world to penetrate outer space. Bastard dog picked up in the streets of Moscow, like all other animal candidates, Laika’s name came from the Russian word “barking”; this dog was selected for its particularly docile character. For the Soviet leader of the day, Nikita Khrushchev, the goal was to mark the USSR’s superiority over the United States of America, just before the commemoration of the fortieth anniversary of the October Revolution. For scientists, it was also an opportunity to know if a mammal could survive a flight in weightlessness.

The launch from Kazakhstan of Sputnik 2 with Laika onboard was a success. Laika made nine full rotations around the Earth before dying. Contrary to the official version that long maintained that a poison was administered after several days and before the return of the capsule in the atmosphere, Laika died of dehydration after only a few hours, due to a malfunction in the regulation system. First martyr of the space conquest, it preceded many animals, insects or bacteria among which dogs, cat, monkeys, geckos or tardigrades.

Three years later, in 1960, Sputnik 5 orbited two dogs: Belka and Strelka. But this time, with complete control of the launch and recovery, these dogs returned safely to Earth. The question we can ask ourselves is about those living beings’ legal status: are they astronauts (or cosmonauts, spationauts, taikonauts…) or space objects?

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. 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).

Even though we could consider that, according to Article V of the Outer Space Treaty (1967), which states that “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”, some animals or insects could “carry an activity in outer space”, it is highly debatable that, even though there are no official definition of an astronaut, those creatures could be called “astronauts”. There is an ethical interrogation about their status of “envoys of mankind” considering the fact that those animals, insects and bacteria are living beings. We could consider, for example with the 1968′ tortoises becoming the first creatures ever to venture into deep space, as with the Voyager program, an American scientific program that employs two robotic probes, Voyager 1 and Voyager 2, to study the outer Solar System, that those tortoises were sent in an attempt to venture into deep space and represent humanity, like diplomats of “life on Earth”.

The commodity status of animals refers to the legal status as property of most non-human animals. Animals regarded as commodities may be bought, sold, given away, bequeathed, killed, and used as commodity producers: producers of meat, eggs, milk, fur, wool, skin and offspring, among other things. Basically, most animals are considered commodities or sentient commodities. There are no international regulations about research animals’ legal status. Most of the legislations throughout the world, especially Western ones, consider animals (nothing is usually specified about insects, which could by analogy be qualified as animals) as commodities, tangible items that may be bought or sold; things produced for commerce. The Convention on International Liability for Damage Caused by Space Objects (1972) talks about Space Objects and so is the Convention on Registration of Objects Launched into Outer Space (1972) which specifies in its Article I (b) that “The term space object includes component parts of a space object as well as its launch vehicle and parts thereof”. As a result, considering the fact that those living beings are part of missions and cannot be considered astronauts, because they can be considered parts of their spacecraft or module (ISS), they can therefore be called space objects as it is enounced in the Convention on Registration of Objects Launched into Outer Space (1972) which specifies in its Article I (b) that “The term space object includes component parts of a space object as well as its launch vehicle and parts thereof”.

Are they space objects?

What are biosatellites? What are satellites? They are space object. The term Object in reference to outer space was first used in 1961 in General Assembly Resolution 1721 (XVI) titled International cooperation in the peaceful uses of outer space to describe any object launched by States into outer space. Professor Bin Cheng, a world authority on International Air and Space Law, has noted that members of the COPUOS during negotiations over the space treaties treated spacecraft and space vehicles as synonymous terms. The Space Object can be considered as the conventional launcher, the reusable launcher, the satellite, the orbital station, the probe, the impactor, the space telescope…

The term “space object” is not precisely defined by the Onusian space treaties. Let’s note that the five outer space treaties use such phrases as “objects launched into outer space”, object placed “in orbit around the Earth”, “in orbit around or other trajectory to or around the Moon”, or “around other celestial bodies within the solar system, other than the Earth”. Some of the treaties refer also to “spacecraft”, or “landed or constructed on a celestial body”, “man-made space objects”, “space vehicle”, “supplies”, “equipment”, “installations”, “facilities” and “stations”.

Let’s remember that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, article 31 of the Vienna Convention on the Law of Treaties of 1969. In addition, “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”, article 32 of the Vienna Convention on the Law of Treaties of 1969.

Let’s recall that a space object causing damage triggers international third-party liability under the Convention on International Liability for Damage Caused by Space Objects (entered into force in September 1972). Article I (d) of which enounces that “the term space object includes component parts of a space object as well as its launch vehicle and parts thereof”. Its Article II adds that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”.

A space object requires, thanks to the Convention on Registration of Objects Launched into Outer Space (entered into force in September 1976), registration. Article II of which states that “When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry”.

Finally, the term space object effectively triggers application of much of both 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 in October 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 in December 1968). Article VII of the first declares 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”.

Article 5 of the latter states that “1. Each Contracting Party which receives information or discovers that a space object or its component parts has returned to Earth in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State, shall notify the launching authority and the Secretary-General of the United Nations. 2. Each Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts. 3. Upon request of the launching authority, objects launched into outer space or their component parts found beyond the territorial limits of the launching authority shall be returned to or held at the disposal of representatives of the launching authority, which shall, upon request, furnish identifying data prior to their return”.

The Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. It states 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”.

We can conclude by saying that a satellite is a space object. Because texts don’t mention anything in particular concerning living beings (or biosatellites) aboard space objects (apart from human beings), those beings are considered part of the space object and therefore, space objects themselves. As a result, biosatellites are space objects because they are satellites, and the biological matter is also considered a space object because it is a component part of the space object. That is what we can say about biosatellites.