By Pierre-Frédéric Siaud (Adv. LL.M. in Air and Space Law, University of Leiden)
This article picks up from Part I.
1. ARRA: A sentiment of humanity
The ARRA uses the term ‘astronaut’ in its title and preamble but does not use it in its content; however, the wording ‘personnel of a spacecraft’ appears. There is no indication in the UN Space Treaties on whether those terms can be interchanged or not. Unfortunately, the ARRA does not define ‘personnel of a spacecraft’.
Therefore, using Article 31 of the VCLT for the interpretation of treaties, the first step in order to interpret it begins with the ordinary meaning of the word ‘personnel’. According to the Oxford Dictionary, ‘personnel’ refers to ‘the people who work for an organization or one of the armed forces’. Employing such an approach may be harmful, as the wording used in the ARRA seems to be narrow, excluding the commercial spaceflight participant from the dispositions of the treaty. Indeed, the term ‘personnel of a spacecraft’ would include astronauts, scientists, and space engineers only, and it is therefore doubtful that the Convention would apply to commercial space passengers. Not delving further into the interpretation would leave commercial spaceflight passengers on their own, without any convention protection thus far.
However, the protection of passengers is important for the success of the industry, which led some scholars to adopt a different interpretation. Article 31 of the VCLT provides that the preamble and annexes are helpful in order to interpret a treaty. The annex to the ARRA mentions that the treaty is "prompted by sentiments of humanity’.
This wording appears to be in contradiction with the reasoning developed in the previous paragraph. The wording used, ‘sentiments of humanity’, means that the words of the treaty must be interpreted broadly in order to provide protection to a wide class of persons going to space. In other words, it expands the scope of this term in order to go beyond the sole dictionary definition.
Thus, ‘space tourists’, or more generally, commercial spaceflight participants, are more likely to fall under the terminology of the ARRA than under the one adopted by the OST. This has been confirmed by the UN, which considers the personnel of a spacecraft to include ‘all persons on board’.
Such an interpretation is crucial at present in order to offer protection to these passengers at a time when no legal status has clearly been attributed to commercial spaceflight participants. In the same vein, it is necessary to go deeper into qualifying these passengers, which could be helpful to determine if commercial spaceflight participants should benefit from the same regime.
II. Commercial human spaceflight participants: need for subcategories?
In air law, all objects are not the same and, therefore, are submitted to different categories, such as the distinction between drones and balloons. In space law, such a distinction does not exist but appears necessary, taking into consideration the expansion of space actors. Such a distinction is relevant in order to legally qualify the passenger of a commercial spacecraft. These passengers have not yet been legally qualified. This leads news and popular media to use confusing wording, such as ‘private crew’, ‘space tourist’ or ‘commercial astronaut’. A clear distinction is crucial in order to determine whether a commercial spaceflight participant could benefit from the rights attached to the term ‘astronaut’. One can argue that, from a commercial perspective, the ways to access space can be divided into three categories:
A. The Long Duration Experience
The first hypothesis is the long duration experience, where the passenger would experience something close to what astronauts experience. A long duration experience requires being in orbit around the Earth or going deeper into space, such as reaching the Moon. This would provide those passengers with a minimum altitude, which is not reached by passengers who merely experience zero gravity for some minutes. This category would include the passengers to the ISS aboard spacecraft such as Axiom Space 1, who stayed 10 days in space, or the project of the Japanese billionaire to orbit the Moon. If passengers of any category were to be qualified as astronauts, it would be this one.
B. Suborbital Flight and the Space Experience
The second category would involve passengers wanting to discover space, mostly to experience free gravity and to see the Earth from space. Using the same reasoning as the functionalists’ approach regarding the delimitation of outer space, the idea would be to take into account the nature and purpose of the passenger. However, this idea faces some other theories supporting the application of air law to suborbital flights. Indeed, Dr. B. Scott developed the theory of suborbital flights as the 10th Freedom of the Air. In other words, the passenger will potentially fly from an airport to that same airport, leading to the conclusion that such a service would fall under ASA's negotiations.
Therefore, this category would be the most controversial in order to determine whether the passenger is, or is not, an astronaut.
C. Suborbital Flight as a Mode of Transportation
The last category relies on the same approach as the above-mentioned category: the nature and purpose of the passenger. For instance, the UK Space Agency and the Australian Space Agency have signed the first space bridge partnership. This agreement will help in developing projects such as the Synergetic Air Breathing Rocket Engine (Sabre). Briefly, this project aims to link London and Sidney in 4 hours, using oxygen and hydrogen as fuel, and is slated to be commercially open by 2030. In such a hypothesis, the aim of the passenger would not be to reach space but to be transported from A to B, saving 20 hours. Since the nature and purpose of the passenger are not to reach space, it is questionable whether such a passenger would benefit from the ‘astronaut’ qualification. Going even further, following the theory of Dr. B. Scott, if the passenger goes from an airport A to a destination airport B, the carriage could fall under the 4th and 5th freedoms of the air, as in the UK-Australia example. This category of passenger is the most unlikely to be considered an ‘astronaut’. To support and illustrate that, F. Lyall and P. B. Larsen wrote:
“We do not consider all passengers on a cruise liner to be sailors, or passengers on aircraft to be pilots, flight engineers, or cabin staff, and there is a clear parallel between such cases and touristic space flight."
III. Issues Regarding the Applicability of the Current Regime to Commercial Passengers
Being a new activity, no liability regime has been designed especially for commercial spaceflight participants. Indeed, the OST and the ARRA were written more than 50 years ago, when tourism in space was nothing but a thought. Therefore, applying those treaties to such an activity might lead to some inconsistencies.
Firstly, Article V of the OST and Article 2 of the ARRA mention, respectively, the duty of ‘all possible assistance’ and ‘all necessary assistance’ (see Part I of this two-part series). Regardless of the distinction between ‘possible’ and ‘necessary’, one can comment that either term requires a very high standard to be met by the States Parties. In the case, commercial travel in outer space booms, it raises questions about whether states would accept being bound by such a high standard for commercial activities.
The second argument is closely linked to the first. With high standards come high responsibilities, including the financial aspect. Article 5(5) of the ARRA provides that the expenses are to be paid by the launching state, but only regarding the return of the space object. The ARRA is silent regarding financing the return and rescue of astronauts. The ARRA requires states to ‘immediately’ take action, which means that the state responsible for the occurrence of the incident will, at first, bear the burden of the costs. From the perspective of commercial spaceflight, vehicles will probably be bigger than the ones currently used for re-entry into the Earth’s atmosphere, carrying more passengers, which will engender higher costs. It is questionable whether the state of occurrence will be reimbursed for the cost borne by it for a commercial spaceflight, as it is not required by any provision.
Finally, under the hypothesis of a real, developed activity, the number of flights to and from outer space will be quite important, way more than, for instance, the average of 6 months of stay in the ISS. Therefore, the applicability of the ARRA to commercial passengers constitutes a burden to States Parties, and again, it is questionable whether States will agree to bear this burden or if they will decide to engage in consultation in order to create a regime designed especially for commercial spaceflight participants.
If a new regime were to be drafted, it would have to take numerous parameters into consideration. Commercial passengers have always benefited from a special regime adapted to their situation, either on the ground or in the air. If space becomes a new environment for transportation, such a new regime is essential. One of the most important steps will be to clearly identify these passengers in order to offer them legal status. Determining whether the UN Space Treaties are applicable to them is crucial. A new regime would offer commercial spaceflight participants a more appropriate set of protections. Indeed, going beyond the sole qualification of these passengers, the UN Space Treaties are not equipped with wording adapted to commercial perspectives. One could mention Article VII of the Convention on International Liability for Damage Caused by Space Objects, which excludes nationals of a launching state from the provisions of the entire liability convention.
 Z. Yun, A Legal Regime for Space Tourism: Creating Legal Certainty in Outer Space, Journal of Air Law and Commerce, Vol. 74 Iss. 4, (2009) at 978.