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Ticket to the Stars: Discovering the Legal Status of Commercial Spaceflight Passengers (Part I)


By Pierre-Frédéric Siaud (Adv. LL.M. in Air and Space Law, University of Leiden)



Introduction

In 2001, for the first time, someone had the opportunity to pay for a ticket in order to spend some time in space without being an astronaut. Since then, numerous people have reached space. This environment offers plenty of commercial opportunities,and work is being done for these projects to be launched as soon as possible. Therefore, the human population in space might increase exponentially. This raises the question: what is the legal status of these commercial passengers? This blog will demonstrate that the definition of ‘astronaut’ as understood by the Outer Space Treaty (OST) does not suit commercial spaceflight participants. However, the definition used by the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (ARRA) might be more appropriate. Finally, the author will demonstrate that all ‘space tourists’ might not belong to the same category. As the UN Space Treaty Framework has not been conceptualized keeping in mind commercial perspectives, a sui generis regime might be the solution.


Humans first went to space in 1961, and since then, around 600 people have been there. Humanity’s interest in reaching this new environment seems to have increased over time. Since 2000, there has always been a human presence in space. If this activity started against the backdrop of the Cold War, reaching space has always been a dream in the minds of way more people than merely those working for space agencies. This led to the development of a new category of people: space tourists. The first ‘space tourist’, D. Tito, reached space, more specifically the International Space Station (ISS), in 2001 after an agreement between all of the ISS partners. Since then, numerous ‘space tourists’ have been to the ISS; the last mission in time was Axiom-1 Space in early 2022. Allowing private people to venture into space opened the door to numerous commercial opportunities.[1] From suborbital flights to luxury hotels orbiting the Earth, one of the commercial branches involves bringing passengers to space for the experience of space. Bringing commercial passengers into space raises a crucial question: are the UN Space Treaties adapted to such passengers, treaties that were drafted at a time when space tourism was not contemplated? In the same vein, in terms of the hypothesis of the success of these commercial perspectives, it is questionable whether the UN Space Treaties can accommodate a high volume of passengers.


Not having commercial activities in mind while drafting these treaties, it is foreseeable that the wording used in the treaties will lead to some confusion. The only clear treaty is the Moon Agreement, which qualifies any person on the moon as an astronaut, regardless of the commercial aspect. However, nations have barely ratified the Moon Agreement, so such a qualification is not sufficient. This article will try to identify under which qualification of the UN space treaties the term ‘civilian astronaut’ falls. Moreover, the article will try to identify whether all commercial spaceflight passengers fall under the same category, which the lack of a clear space boundary complicates.

I. Rights associated with the term ‘astronaut’

The term ‘space tourist’ has been used quite a lot in order to qualify commercial spaceflight participants. However, these passengers have barely accepted this. The second commercial passenger to go to the ISS, M. Shuttleworth, said, “I am not a scientist, nor am I a professional astronaut, but I am definitely not a tourist." Unfortunately, legally speaking, this self-qualification is irrelevant. One could question why there exists, in the first place, such an interest in being qualified as an ‘astronaut’. In reality, some rights are attached to this qualification, as laid down in Article V of the OST and in the ARRA. Very recently in the history of human spacefaring, it has been realised that a treaty to protect astronauts is required. Indeed, both the Apollo [2] missions and the Soyuz missions started with dramatic events. This led to the ARRA being adopted some months after the OST.


The first and more important right is laid down in Article V of the OST which is the article on which the ARRA is based. The ARRA mentions ‘sentiments of humanity’, draws attention to Article V of the OST, and is considered to be the lex specialist to the OST. In case of an incident on their territory or on the high seas, Article V of the OST provides that States Parties to the Treaty will have to lend all possible assistance to these astronauts. A similar provision can be found in Article 2 of the ARRA, using the term ‘necessary’ instead of ‘possible’. The wording of the ARRA sounds less inclusive than the wording of the OST. Indeed, ‘all possible assistance’ will lead to a very high standard where a state will have to do everything possible. The term ‘necessary’, by its meaning, excludes what is ‘not necessary’. Without being defined, the necessity might be qualified differently by the different state parties.


It is well accepted that the OST also requires astronauts to provide "all possible assistance" to each other.[3] From a commercial passenger perspective, it would mean that passengers would benefit from these rights but also have to bear the burden of their duty. In other words, in the event that these treaties apply to commercial spaceflight participants, an astronaut from any national space agency who is the victim of an accident may have to be saved by a commercial passenger.


Pursuant to Article II of the ARRA, members shall render immediately all necessary assistance. Moreover, such assistance should be provided even on the high seas or in a place not under the jurisdiction of any state. Another right laid down in Article V of the OST concerns the duty imposed on states to inform the UN Secretary-General of any danger to the lives of astronauts in outer space. All those provisions are crucial for commercial spaceflight participants, but only their legal qualification will permit them to know whether they can benefit from those rights or not.

II. Blurred wording of the OST: between ‘astronaut’ and ‘envoy of mankind’

A. Commercial spaceflight participants as ‘envoy of mankind’

The first step in identifying a category suitable for commercial spaceflight passengers would be to know whether these passengers fall under the term ‘astronaut’. As mentioned in the introduction, the wording of the UN Space Treaties is confusing. Indeed, the word ‘astronaut’ is used in the ARRA, but only in its preamble and title and not in its content. Therefore, it is not the most appropriate convention to infer that such passengers fall within the ambit of the term ‘astronaut’. Next, the word ‘astronaut’ is also used in the OST, in Article V. If no definition is laid down in the OST, the Convention associates ‘astronauts’ with the term ‘envoy of mankind’, another blurred and undefined term.


Therefore, in order to get a clearer understanding of this term, we may turn to the VCLT. Pursuant to Article 31 of the VCLT, treaties must be interpreted in good faith in light of their purpose and object. This could be a way to determine if the commercial spaceflight participants could fall under this category. If the term ‘mankind’ is not defined by the OST, it is used in Article 1 with the wording ‘province of all mankind’. This concept connotes the common interests, the res communis, regarding space activities. However, the term ‘mankind" itself faces several different interpretations. On the one hand, some believe that ‘mankind’ can be a positive term denoting the common interest of the world or a social and legal system based on humanity, conceding that this term complicates the interpretation of the OST.[4] On the other hand, some believe that ‘mankind’ could be a new subject of international law, that could have a legal prescription aimed at preserving and protecting outer space, but at present, without a proper status of norm.


Therefore, such interpretations of the wording used in the OST do not provide any answer to whether the commercial passenger of a spacecraft would qualify as an ‘astronaut’. More precisely, with the wording used in the OST being blurry, it is more likely to see these passengers excluded from such a category. Indeed, scholars believe that participants in commercial spaceflight cannot be qualified as ‘astronauts’ as understood by the OST.


B. ‘Astronaut’ qualification in practice

Again, the VCLT is helpful to interpret the blurred use of words. According to Article 31 of the Convention, the words of a treaty must be interpreted as per their original meaning. In practice, a legal definition of an astronaut would require three elements: training, altitude, and selection.


Firstly, one could think that the element of training would be most appropriate in order to distinguish between an astronaut and a commercial spaceflight participant. However, this element cannot be the basis of such a distinction. Indeed, all the visitors to the ISS trained before going to space, even the last commercial mission to the ISS, Axiom-1 Space. Passengers on the Virgin Galactic suborbital flights have also undergone some training; the company even signed a training agreement with NASA for all its passengers headed for the ISS.


Secondly, one could argue that altitude could be a way to know whether a passenger on a spacecraft is an astronaut or not. Indeed, suborbital flights only reach the space ‘boundary’, whereas astronauts go way deeper into space. However, commercial spaceflight participants are not limited to suborbital flights. One could mention the ISS commercial passengers, all projects of space hotels orbiting around the Earth, or the project of the Japanese billionaire Yusaku Maezawa, slated to be the first private passenger to orbit the Earth’s satellite, which all involve private passengers going higher than merely reaching the space ‘boundary’.


The final criteria might be more appropriate concerning the distinction: selection. Space agencies usually use very strict criteria for selection, which generally include engineering or piloting requirements, emotional stability, language skills, and medical records. It is unclear whether commercial passengers will or will not have any selection. A criterion of selection for such a passenger will undoubtedly be to meet the price requirement, as those flights are, at present, expensive. Therefore, even looking into the practice, the term astronaut does not perfectly suit commercial passengers.


Further, while having a very wide definition of the term ‘astronaut’, the US modified its definition in 2021 in order to exclude most of the commercial spaceflight participants from this definition. Indeed, if the requirement was to reach a certain altitude to receive the astronaut wings, there are now more requirements, such as contributing to space flight safety. Therefore, it seems that the term ‘astronaut’ is not adapted to commercial spaceflight participants.


To be continued in Part 2 of the two-part article.


 

Endnotes


[1] E. Yi-Wei Chang, From aviation tourism to suborbital space tourism: A study on passenger screening and business opportunities, Acta Astronautica, 177 (2020) at 410-420.


[2] B. Cheng, The 1968 Astronauts Agreement or How Not to Make a Treaty, The Yearbook of World Affairs, (1969) at 186.


[3] F. G. von der Dunk, D. Meishan Goh, Cologne Commentary on Space Law, vol. 1, Outer Space Treaty, (2009) at 100, §20; see also, M. J. Sundahl, The duty to rescue space tourists and return private spacecraft, 35(1) Journal of Space Law, Vol 35 No 1, at 168 (2009).


[4] Adrian Bueckling, “The Strategy of Semantics and the Mankind Provisions of the Space Treaty,” Journal of Space Law 7, (1979) at 15


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