Matthew C.P. Fleace, J.D. Candidate, 2024, Indiana University Robert H. McKinney School of Law; B.S. 2015, Indiana University – Bloomington, Indiana. Dedicated to Carl Prince, my grandfather, for his work on the Apollo Missions.
Introduction
On July 20, 1969, Neil Armstrong set foot on the moon and uttered the iconic words, “[t]hat’s one small step for man, one giant leap for mankind.”[1] America did it: President Kennedy’s challenge to put men on the moon before the end of the decade was fulfilled. Though it was not Armstrong’s intention, his words echoed the spirit and letter of the 1967 Outer Space Treaty, which deemed astronauts “envoys of mankind.”[2] Michael Collins, another astronaut on Apollo 11, later observed:
travelling around the world several months after the flight, I was continually impressed by the fact that no matter where we were, the reaction was the same and to me, unexpected. Never did I hear, ‘Well, you Americans finally did it.’ Always it was ‘we,’ we human beings drawn together for one fleeting moment watching two of us walk on that alien surface. [3]
Undoubtedly, Armstrong, Collins, and Buzz Aldrin were not just American astronauts–they were envoys for all mankind. However, the legal status of future spacefarers is not so clear. Today, paying customers fly into outer space, float weightless for a minute or two, and then return to Earth. Obviously, recreational, space flight by thrill-seeking, wealthy patrons is not the same kind of trip as that taken by Armstrong and his crew. Yet members of each group travel in outer space, “cast[ing] doubt on the ambit or content of the concept of ‘astronaut.’”[4]
To understand the future of legal protections for space travelers, one must understand where they began. In January 1967, the United States, the United Kingdom, and the Russian Federation opened the Outer Space Treaty to the United Nations (“UN”) for signatures. Nine months later the treaty was put into force. A little over a year later, the “Rescue Agreement” was entered into in force, specifically expanding articles V and VIII of the Outer Space Treaty.[5] Both agreements sought to protect the use of outer space, and those who traveled there, from the tensions felt on Earth. Astronauts, representing humanity to the universe, were given special status as “envoys of mankind” and were afforded immense protections, such as their rescue and return should they land in another country’s territory upon their return to Earth.
However, both agreements failed to explicitly define who is an astronaut.[6] For some, “astronaut” is a descriptive, rather than technical, term and refers to those who venture into outer space or travel aboard a spacecraft. For the United States, astronauts are designated by the National Aeronautics and Space Administration (“NASA”), must be employed by the government, and participate in the operation of the spacecraft.[7] For others, the term speaks for itself and conjures recognizable images of an individual in a spacesuit. Dictionary definitions do not appear to alleviate the ambiguity.[8] With the introduction of the space tourist, the ambiguity of the term becomes crucial. Are space tourists astronauts that are protected by the treaties? Or are they a new class of space traveler, venturing into space without legal cover? It seems improper to extend the term “astronaut” to those visiting space for the recreational novelty of it. After all, people on a cruise are not considered sailors, and passengers on an aircraft are not pilots.
This Note analyzes the Outer Space Treaty and the Rescue Agreement using the Vienna Convention’s principles of treaty interpretation. Following the analysis, this Note offers two proposals for protecting space tourists. This Note argues that space tourists should not be considered astronauts under existing international space law. Orthodox methods of treaty interpretation demonstrate that astronauts are a professional class. Astronauts, as conceived of in the treaties and today’s space agencies, are imbued with a purpose of service for the benefit of mankind, forged from rigorous training, and should be considered distinct from space tourists.
Are Space Tourists Astronauts?
A. The Creation of the Outer Space Treaty and Rescue Agreement
The Outer Space Treaty was the ultimate byproduct of the work performed by the Committee on the Peaceful Uses of Outer Space (“COPUOS”).[9] COPUOS formed two subcommittees, one “Legal” and one “Scientific and Technical.”[10] The charge of the subcommittees was to “consider specific proposals concerning the development of international cooperation . . . of space exploration for peaceful purposes.”[11] Noticeably absent from the division of labor and the task of the subcommittee is the idea of private spaceflight—let alone the idea of extraterrestrial tourism.
The subcommittees were guided by the principle that the “rule of law in outer space” needed to develop “step by step in harmony with the actual needs” of the international community given the flurry of new human activity related to outer space.[12] This same guiding principle is reflected today in academic literature calling for resolutions to the ambiguities left by COPUOS and the Outer Space Treaty’s signatories. Underpinning all of COPUOS’s work and the resulting treaties are two core ideas. First, that States recognize that international law, “including the Charter of the UN applies to outer space and celestial bodies.”[13] And, second, that States agree that space and celestial bodies are not for national appropriation, rather they are “free for exploration and use by all.”[14]
COPUOS’s first major accomplishment was a draft of the “Declaration of the Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space” (“Basic Principles Declaration”).[15] The draft was put forward by the Union of Soviet Socialist Republics (“USSR” or “Soviet Union”) outlining fundamental rules for current and future activities in space. Eventually, though not immediately, a consensus formed among the COPUOS members and the Basic Principles Declaration was created. The UN General Assembly adopted the Basic Principles Declaration via resolution in 1963. However, because it was a resolution, the principles and limitations did not constitute binding law. Still, the expectation was that the groundwork had been laid for a “future legally binding treaty.”[16] The end result was the Outer Space Treaty.
B. The Outer Space Treaty
The Outer Space Treaty is silent as to an explicit definition of “astronaut.” The term “astronaut” is only found in Article V, which reads:
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.[17]
The lack of explicit definition provides the possibility that space tourists could be considered astronauts under the treaty. However, the Vienna Convention’s articles 31 through 33 provide guidance for treaty interpretation, which, if followed, cast serious doubt to that proposition. [18]
C. The Vienna Convention
On May 23, 1969, the UN opened for signature the Vienna Convention’s Law of Treaties. The Vienna Convention sought to codify a legal framework to assist in the peaceful resolution of issues between States with the acknowledgment of universal principles. Though the treaty is extensive, there are three articles that are relevant for the purpose of this Note: articles 31, 32 and 33. These articles are concerned with methods of treaty interpretation.
Article 31 provides that an interpreter following the methods detailed in the articles starts with the ordinary meaning of the terms within the context, supplied by the preamble, annexes, and other related agreements or materials. Article 32 provides for supplementary materials, which may be used if a term is ambiguous, or its interpretation would lead to absurd or unreasonable results. Finally, Article 33 provides that if the treaty is provided in multiple languages, each available language is equally authoritative, and the terms in the treaties are presumed to have the same meaning in each authentic text. For instance, in Article 10 of the Rescue Agreement, the treaty is equally authentic in English, Russian, French, Spanish, and Chinese,[19] the importance of which will be revisited later.
1. Article 31, Outer Space Treaty, and Rescue Agreement—. Article 31 states, “[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.”[20] The ordinary definition of astronaut does not, by itself, resolve the ambiguity. NASA’s 1965 Dictionary of Technical Terms for Aerospace Use also does little to alleviate the confusion.[21] However, when considering in good faith the context of the treaty in which the term arises, the “elephantine quality” of the term “astronaut” begins to emerge.[22]
Article I of the Outer Space Treaty provides context for the remaining articles, codifying the guiding principles articulated by COPUOS:
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.[23]
Notably, Article I charges States with the facilitation of space exploration and use. Furthermore, it designates the purpose and intended beneficiaries of space exploration. Chiefly, “all mankind.”[24]
Article III affirms that it is the “States Parties to the Treaty” that are charged with cooperatively carrying on activities for the benefit of the international community.[25] Later, in Article VI, the treaty elaborates on who may explore and use space by allowing non-governmental agencies to carry on “national activities” on behalf of a State.[26] The activities, presumably the “exploration and use” of outer space by the non-governmental agencies, are under the authorization and supervision of the “appropriate State Party to the Treaty.”[27] Articles VII and VIII seem to further expand the responsibility of States by making them liable for any “objects” and “any personnel” that launch from that State.[28]
Noticeably absent from Article VIII is what those who qualify as “personnel” might be doing in space.[29] However, when considering the other articles of the Outer Space Treaty, “personnel” likely include “non-governmental agents” acting on behalf of the State. Indeed, Article XII conceives of extraterrestrial, “normal operations” that would be performed by the States or their agents.[30] Included in Article XII’s conception of normal operations is the use of “stations, installations, equipment and space vehicles on the moon and other celestial bodies.”[31] States are expected to be “open to representatives of other States” who may wish to visit or observe, so long as they do not interfere with normal operations.[32]
The Outer Space Treaty appears clear: States are free to explore and use space for the benefit of mankind. States may allow non-governmental agencies to perform “national activities” on their behalf.[33] Furthermore, the State is liable for any damages caused by those actors. The next question, then, is what is the significance of these explorations, uses, activities, and operations, to defining the term “astronaut”? The Outer Space Treaty envisions astronauts as the state-sponsored individuals who will carry out the explorations, uses, activities, and operations in space.
Article 31 of the Vienna Convention calls upon the interpreter to consider the full text of the treaty to inform its meaning, including the preamble and annexes. Consider, then, the contextualization from within the treaty itself. The first article of the Outer Space Treaty reads in relevant part, “[t]he exploration and use of outer space . . . shall be carried out for the benefit of and in the interests of all countries . . . and shall be the province of all mankind.”[34] Here it seems that an ordinary understanding of the treaty would lead to the conclusion that those who work in space are doing so for the benefit of everyone else. However, only a particular person of special status could represent all of humanity to the universe, as well as act on their behalf. A person acting as an envoy could fulfill such a role, an envoy being traditionally understood to be a representative on behalf of a government.[35] In Article V, astronauts are given this illustrious designation, where they must be regarded as “envoys of mankind in outer space.”[36]
The Outer Space Treaty bolsters this idea in Article V: “[i]n 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.”[37] Often analysis of this provision focuses primarily on the “render[ing] all possible assistance” language as supporting the idea of astronauts as envoys and the duties owed to them and held by them for other astronauts.[38] It follows then that persons achieving that status should receive protections like those in Article V and the Rescue Agreement. Yet, of equal importance for attaining the full conception of the signatories’ idea of astronaut is the first clause of the sentence: “[i]n carrying on activities in outer space and on celestial bodies.”[39] The clause explicitly conveys the signatories’ idea that astronauts are a professional class that will be performing the explorations, uses, activities, and operations, via a launching State, and acting in the interests of mankind.
In designating astronauts as envoys, the drafters sought to “distinguish State sponsored astronauts . . . in the event that they would be the first to represent humanity in outer space.”[40] Some point out that this designation may just be a figure of speech and that “no State has the authority to appoint an ‘envoy of mankind.’”[41] However, the Outer Space Treaty is an agreement among nations to designate a particular class of individual–astronauts–as envoys, and not the action taken by one State without the authority to represent all of humanity. This cooperative and intended designation does help to define astronauts as serving as a representative on behalf of humanity, a role that is noticeably absent when considering a tourist.[42]
Following Article 31, interpreting the term “astronaut” in the Outer Space Treaty leads to the conclusion that space tourists are not astronauts.[43] The signatories’ conception of an astronaut seems clear, astronauts are representatives of humanity and afforded special protections because of that status.[44] Astronauts are also State actors or agents carrying out scientific and exploratory missions for the benefit of humanity. This definition of astronauts as scientific explorers, serving humanity via a sovereign nation coincides with today’s space agencies. Astronauts, according to today’s space agencies, are still the professionals who pursue this work of “carrying on activities in outer space” “for the benefit of . . . all mankind.”[45] This responsibility is absent when considering a tourist traveling to space for recreational and personal pleasure. The special designation as envoy comes with the highest protections as demonstrated by Article V and expounded upon by the Rescue Agreement. The agreement by the signatories to designate astronauts as envoys of mankind removes the ability of a “private person” or “tourist” to claim the title and receive the legal protection offered by it.
2. Article 32, Outer Space Treaty, and Rescue Agreement—. Article 32 provides recourse to supplementary materials to confirm the meaning of provisions after an application of Article 31.[46] The purpose of Article 32 is to address provisions of a treaty that remain “ambiguous or obscure” or lead to “manifestly absurd or unreasonable results after an Article 31 analysis.[47] Consulting the preparatory works of a treaty may impart definition and context to provisions or terms that appear ambiguous. The preparatory works of the Outer Space Treaty reinforce the conclusion reached by the Article 31 analysis above.[48] For example, part of the preparatory works include a 1966 report from the Legal Subcommittee to the COPUOS. The report contains two annexes, the first is proposed drafts from the United States and Soviet Union, along with letters from each country’s representative. The second annex contains working papers of the agreed-upon provisions that would later become the Outer Space Treaty.
The letter by the United States’ representative emphasized points to include in the treaty. Points concerning cooperation by all countries in the scientific exploration of space and astronauts rendering assistance to astronauts of another country were of particular importance. Curiously, despite the use of “astronauts” in its letter, the United States used other words in place of “astronauts” in its proposed draft.[49] For instance, draft article two reads, “[s]tates in a position to do so shall, where requested or required by the circumstances, render assistance to nationals of other States engaged in activities on celestial bodies.”[50] For reasons unexplained, the United States replaced “nationals” with “astronauts” in a provision that mirrored the point it wanted to emphasize in the accompanying letter.[51] Yet, this divergence cannot be understood to expand the definition of astronaut to include tourists for two reasons. The first is that the term “nationals” was not ultimately used in the treaty in place of “astronauts.” The second, as mentioned above, is the treaty conceives of astronauts as being State actors or agents, the term “nationals” supports this conception.
The Soviet Union also contributed a draft proposal for the treaty. The Soviet Union’s draft contained language that nearly mirrors the language of the Outer Space Treaty. Article IX of the draft reads:
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 accidents, distress, or emergency landing on the territory of another State Party or on the high seas. Where astronauts make such a landing, their safety shall be assured and they shall be enabled promptly to return shall be enabled promptly to return to the territory of the State Party 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.[52]
Also included in that draft is an article that reflects the purpose and intent of the article. Unsurprisingly, earlier drafts from the Soviet Union use “cosmonaut” instead of “astronaut.”[53] That term being specific to the Soviet Union’s space program, does not carry with it the same supposed ambiguity as that of “astronaut.” Evidently, a compromise was reached in replacing “cosmonaut” with “astronaut.” The incisive inference is that the interchangeability of the terms narrows the definition of “astronaut.” Affirming the conclusion reached in the previous section, that “astronauts” are State actors or agents, not tourists.
3. Article 33, Outer Space Treaty, and Rescue Agreement—. Article 33 of the Vienna Convention provides that “[w]hen a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.”[54] The Article continues, “terms of the treaty are presumed to have the same meaning in each authentic text.”[55] Finally, “when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”[56] For both the Outer Space Treaty and the Rescue Agreement the authentic languages are English, Russian, French, Spanish, and Chinese. Fortunately, the authenticated languages do not appear to disagree about the term astronaut. However, there is disagreement about the term “personnel of a spacecraft” in the Rescue Agreement.[57]
“Personnel of a spacecraft” is terminology from the Rescue Agreement, which was put into force on December 3, 1968. The purpose of the Rescue Agreement was to elaborate on the Outer Space Treaty’s provisions for “liability for damage caused by the launching of objects into outer space and an agreement on assistance to and return of astronauts and space vehicles.”[58] The drafters and signatories desired to “give further concrete expression to the rights and obligations” found within the Outer Space Treaty.[59]
The Rescue Agreement imposes a duty on States’ Parties to “immediately take all possible steps” to rescue [and assist] personnel of spacecraft who land in their territory.[60] It also requires States’ Parties who are in a position to do so to extend assistance in search and rescue operations for personnel of a spacecraft that alights on the high seas or “any other place.”[61] Additionally, it requires all rescued personnel to be “safely and promptly returned to representatives of the launching authority.”[62] To date, no astronaut has survived such an emergency landing, leaving the provisions of the Rescue Agreement untested.[63] The Rescue Agreement is particularly relevant to private spaceflight because it extends the duty to rescue to “personnel of a spacecraft, which States Parties may interpret as applying to civilian spaceflight passengers.”[64] However, this cannot be the case, because as will be demonstrated, the term “personnel” as used in the Rescue Agreement is too narrow.[65]
The use of “personnel” in Article VIII of the Outer Space Treaty, when considered in other authoritative languages, does not translate to a legally significant term. For example, the French version uses the same word, “personnel,” while the Spanish version uses “personal.”[66] However, in the Rescue Agreement, only the English, and perhaps the Chinese version, uses a legally ambiguous term: “personnel.”[67] The other authoritative languages use terms that translate to “crew” in English, which is a term that has a legal definition.[68] Again, for example, the Russian word used in place of personnel in the Rescue Agreement is “экипаж” (ekipazh), which means “crew.”[69] The French version uses “equipage” which also translates as “crew.”[70] The Spanish version uses “tripulación” which translates as “crew.”[71] The Chinese version uses “外 空 機 人 員” which translates to “outer space crew.”[72]
The term “crew” has legal significance both internationally and nationally.[73] For instance, in Article 11 of the Multilateral Space Station Agreement, “crew” is defined as “qualified personnel,” provided by a Partner, who could serve as Space Station crew members.[74] In this definition, crew members are State-sponsored personnel who would be serving aboard the International Space Station. A national example can be found in 51 U.S.C. § 50902(2), which defines “crew” as “any employee of a licensee or transferee, or of a contractor or subcontractor of a licensee or transferee, who performs activities in the course of that employment directly relating to the launch, reentry, or other operation of or in a launch vehicle or reentry vehicle that carries human beings.”[75] The statute goes on to further expound “crew” to include “international partner astronauts,” as the very “qualified personnel” mentioned in Article 11 of the Multilateral Space Station Agreement.[76]
In considering this conflict of personnel, some have posited that the use of the term “personnel” in Article VIII of the Outer Space Treaty, as the potential “ordinary meaning” could help inform the intended definition of “personnel” in the Rescue Agreement.[77] In being so, it would be sufficiently broad enough to include space tourists.[78] For example, “personnel” as defined by Webster’s in 1968, means “persons employed in any work, enterprise, service, etc.” [79] Even so, including space tourists as “personnel” would be largely inconsequential for two reasons. First, Article VIII does not offer any protections to “personnel.”[80] Rather, it in combination with Article VII makes States liable for any harm caused by personnel (or space tourists) to other States, whether terrestrially or extra-terrestrially. Secondly, as seen above, the term personnel is narrowed via the operation of Article 33 and Lex Posteriori. The use of lex posteriori provides for a later treaty to supersede a previous one where terms are inconsistent.[81] Following this rule, an interpreter who encounters terms that are related but inconsistent must follow the more recent intended meaning of the terms.
Pursuing the effects of Article 33 and lex posteriori on “personnel of a spacecraft” to its logical conclusion leads the interpreter to conclude that the narrower definition of personnel is the intended one. This conclusion is reinforced by the Rescue Agreement’s Preamble, which includes in the Treaty’s purpose the elaboration on the very article—Article VIII of Outer Space Treaty—the legally insignificant version of “personnel” is found. In fact, the interpreter may conclude that the omission of “astronaut” from the body of the Rescue Agreement was intentional and that the signatories’ intention in using “personnel of a spacecraft” was to address the ambiguity created by the unspecific “personnel” of Article VIII in the Outer Space Treaty.[82]
The aforementioned conclusion also addresses the concern that the term “personnel of a spacecraft” is terminology that updates and supersedes “astronauts” when considering the duty to rescue.[83] The main contention from this view is that the Rescue Agreement omits the word “astronaut” from all the articles and instead uses the term “personnel of a spacecraft.”[84] The only mention of “astronaut” in the Rescue Agreement is in the Title and Preamble. This deliberate exclusion seems to provide an opportunity to broaden the protections afforded by both treaties to more individuals. Yet, what is perhaps a more likely explanation of the absence of “astronaut” in the Rescue Agreement’s articles is the desire by the drafters to essentially equate the newer term, “personnel,” to the older “astronaut.”[85]
“Open The Pod Bay Doors, Hal” – Sources of Protection for Space Tourists[86]
The conclusion that the terms “astronaut” and “personnel of a spacecraft” do not apply to tourists leads to a pressing reality: there are and will be more people going to space that are not protected by international law. Private companies will continue to make private trips to space for thrill-seeking adventurers who can afford to fly. And, because the Vienna Convention analysis finds that space tourists cannot be considered “personnel” or “astronauts,” there is no duty to rescue or assist space tourists.[87] Without legislative change, there will continue to be no duty beyond the everyday sense of morality. There are two potential avenues to resolving this issue. The first is an opportunity for the countries leading the space industry, specifically the United States, to continue to influence the space industry. The second is a necessary, though perhaps more challenging task for the international community: developing another treaty to protect tourists.
A. National & International Solutions
Because only three space agencies have the capability to put humans into space and only one country has a booming private, commercial space industry actively sending people to space, a temporary solution to space tourist protection could come from national legislation.[88] The United States considers itself “the world leader in space” touting a “robust space program [that] enables us to expand our alliances and partnerships and underpins our military strength.”[89]
The United States believes its “space achievements demonstrate American leadership” and bolsters [its] credibility and influence worldwide.”[90] The U.S. seeks to maintain its leadership status through a number of priorities, including to “continue to leverage human presence in low-Earth orbit to enable people to live and work safely in space.”[91] This goal combined with the priority of “foster[ing] a policy and regulatory environment that enables a competitive and burgeoning U.S. commercial space sector” makes the United States the ideal world leader for pioneering and even setting the standard for protecting space tourists.[92] Furthermore, the U.S. wants to “work with allies and partners to update and harmonize space policies, regulations, export controls, and other measures that govern commercial activities worldwide.”[93]
There are several U.S. agencies involved in the regulation of space activities.[94] NASA, the FAA, and the Department of Defense all contribute to the regulation of space activities. The Secretary of State, through the National Oceanic and Atmospheric Administration (“NOAA”) also contributes to the U.S.’s space policy. Clearly, there is not a shortage of regulatory ability. Yet, the solution is delicate because too much regulation or poorly constructed legislation could stifle, or at the very least hinder, the U.S. private space industry. However, the absence of legislative protection of space tourists is equally untenable.
A potential solution could model the language of the Outer Space Treaty and Rescue Agreement since those are already widely adopted.[95] The U.S. has already classified the types of individuals that may be aboard a space flight: astronauts, crew, and space flight participants.[96] The definition of space flight participant, as “an individual, who is not crew or a government astronaut, carried within a launch vehicle or reentry vehicle” is already clear and broad enough to include a space tourist.[97] The next step would be to define the responsibilities and rights afforded those classes during an emergency.
The more challenging but permanent solution would need to come from the international community. As demonstrated above, the Vienna Convention analysis excludes space tourists as either astronauts or personnel. Although expedient, disregarding the categories already designated in the Outer Space Treaty and Rescue Agreement would not be prudent. It may lead to clarity in the near term, but muddle things in the future. One can conceive of potential future litigation where there is a need to distinguish astronauts, crew, and space tourists. If all are afforded indistinguishable status, with indistinguishable rights and responsibilities, then parsing future legal matters could become difficult. For instance, if an emergency were to occur in a “mixed-use” space hotel, like Orbital Reef, are tourists afforded a duty of care by the crew and astronauts that may work there?
The fear underpinning the discussion concerning the supposed ambiguity of “astronaut” and “personnel” is the desire to protect space tourists from being left to die a cold and lonely death. That fear is warranted and should be addressed by the international community via another treaty. However, in addressing the issue, the international community should not confuse the different statuses of spacefarers. The best course would then be to maintain the different statuses but create a commercial space convention that narrowly addresses the need to protect space tourists.
Conclusion
Attached to the ladder of the landing gear for the lunar module was a plaque that was left on the moon by Neil Armstrong and Buzz Aldrin.[98] Inscribed on the plaque were these words: “Here men from the planet Earth first set foot upon the Moon July 1969, A. D. We came in peace for all mankind.”[99] The analysis undertaken above demonstrates that the signatories to the Outer Space Treaty and Rescue Agreement collectively believed that astronauts are a professional class. Astronauts are State-sponsored agents pursuing scientific exploration of outer space for the benefit of “all mankind.” They are charged with peaceful and cooperative conduct during operations, with the responsibility to respond to and assist other astronauts in need. Their status as representatives of humanity is enshrined in the Outer Space Treaty and reinforced in the provisions of the Rescue Agreement. The protections afforded them are appropriate given their status as envoys of mankind. Space agencies today continue to view astronauts in this way.
The ambiguity surrounding the terms “astronaut” and “personnel” eclipses after a Vienna Convention analysis of the terms and preparatory materials of the treaty. A Vienna Convention analysis with assistance provided by principles of interpretation, international and national definitions, and the historic and present conception of astronauts by space agencies solidify the concept of “astronaut” as being both an envoy and crew. Unfortunately, tourists do not fall under this definition, even in a broad reading of the Outer Space Treaty and Rescue Agreement.
This conclusion demands that the UN and the COPUOS draft another binding treaty specifically concerned with protecting space tourists. The United States should not shy away from taking a leadership role in this process. And, the United States should consider drafting its own legislation to protect space tourists, which could potentially be a model for a later international treaty.
[1] July 20, 1969: One Giant Leap For Mankind, NASA, https://www.nasa.gov/mission_pages/apollo/apollo11.html [https://perma.cc/2HA7-3XJT] (last visited July 20, 2021).
[2] Interview by Stephen E. Ambrose & Douglas Brinkley with Neil Armstrong, in Houston, Tx. (Sept. 19, 2001); Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. V, Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205 [hereinafter “Outer Space Treaty”].
[3] M. Collins, Liftoff: The Story of America’s Adventure in Space 161 (1988).
[4] Francis Lyall & Paul B. Larsen, Space Law: A Treatise 117 (2nd ed. 2018).
[5] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Dec. 3, 1968, 19 U.S.T. 7570, T.I.A.S. No. 6599, 19 U.N.T.S. 7570 [hereinafter “Rescue Agreement”]; Frans G. von der Dunk, A Sleeping Beauty Awakens: The 1968 Rescue Agreement after Forty Years, 34 J. Space L. 411, 417–18 (2008).
[6] Bin Cheng, Studies in International Space Law 457 (1997); see also Lyall & Larsen, supra note 4, at 117.
[7] 51 U.S.C.S. § 50902(4).
[8]Astronaut, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/astronaut [https://perma.cc/J6L4-H4S9] (last visited Oct. 19, 2022) (“a person whose profession is to travel beyond earth’s atmosphere; or, any person who travels beyond the earth’s atmosphere”); Astronaut, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/astronaut [https://perma.cc/9RRT-T4TC] (last visited Oct. 19, 2022) (“a person who has been trained for traveling in space”); Astronaut, Dictionary.com, https://www.dictionary.com/browse/astronaut [https://perma.cc/Q8CQ-WLE6] (last visited Oct. 19, 2022) (“a person engaged in or trained in space flight”) [hereinafter “Definitions”].
[9] Vladimír Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Dec. 19, 1966), U.N. Audiovisual Library Int’l L., https://legal.un.org/avl/ha/tos/tos.html [https://perma.cc/LX9X-FGPF].
[10] Id.
[11] Id.
[12] Kopal, supra note 9.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Outer Space Treaty, supra note 2, at art. V.
[18] Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter “Vienna Convention”].
[19] Rescue Agreement, supra note 5, at art. 10.
[20] Vienna Convention, supra note 18.
[21] Dictionary of Technical Terms for Aerospace Use 21 (William H. Allen ed., 1st ed. 1965), https://ntrs.nasa.gov/api/citations/19660001124/downloads/19660001124.pdf [https://perma.cc/2UBU-ZXEV].
[22] Lyall & Larsen, supra note 4, at 117.
[23] Outer Space Treaty, supra note 2, at art. I (emphasis added).
[24] Id.
[25] Id. at art. III.
[26] Id. at art. VI.
[27] Id. at art. VIII.
[28] Id.
[29] Id.
[30] Id. at art. XII.
[31] Id.
[32] Id.
[33] Id. at art. VI.
[34] Outer Space Treaty, supra note 2, at art. I (emphasis added).
[35] See, e.g., Envoy, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/envoy [https://perma.cc/YT2G-HSSE] (last visited Nov. 29, 2022) (“a person delegated to represent one government in its dealings with another”).
[36] Outer Space Treaty, supra note 2, at art. V.
[37] Id.
[38] Megan McCauley Astro-Not: How Current Space Treaties Could Fall Short of Protecting Future Space Tourists, 50 U. Pac. L. Rev. 453, 463 (2019) (“Article V requires States Parties to ‘render . . . [astronauts] all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas.’ This provision articulates that parties owe a duty of care to ‘astronauts.’”).
[39] Outer Space Treaty, supra note 2, at art. V.
[40] Sara Langston & Sara Jane Pell, What is in a Name? Perceived Identity, Classification, Philosophy, and Implied Duty of the ‘Astronaut’, 115 ACTA Astronautica 185, 186. (2015).
[41] Mark J. Sundahl, The Duty to Rescue Space Tourists and Return Private Spacecraft, 35 J. Space L. 163, 184-85 (2009).
[42] See, e.g., Tourist, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/tourist [https://perma.cc/7ZE5-3JV2] (last visited Oct. 21, 2022) (“one that makes a tour for pleasure or culture”).
[43] Stephan Hobe, Legal Aspects of Space Tourism, 86 Neb. L. Rev. 439, 454–55 (2007) (“Whereas international law and most national laws lack a general definition of the term ‘personnel of an aircraft,’ [though ‘astronaut’ could also be substituted here] it is obvious that passengers cannot come under this term. Space tourists are obviously passengers in terms of air law, and as a result, they fall clearly under the command of the aircraft commander . . . The terms ‘astronauts,’ ‘personnel of a spacecraft,’ and ‘envoy of mankind,’ have not yet been defined in international space law. As has been observed, they bear different connotations: ‘astronaut’ has a more explorative or scientific meaning, ‘personnel’ has a more functional meaning, and ‘envoy of mankind’ has a more humane meaning.”).
[44] Outer Space Treaty, supra note 2, at art. V.
[45] Id. at art. I & V.
[46] Vienna Convention, supra note 18, at art. 32.
[47] Id.
[48] Comm. on the Peaceful Uses of Outer Space, Rep. of the Legal Subcomm. on Its Fifth Session, U.N. Doc. A/AC.105/35 (Sept. 16, 1966).
[49] Id. at 7–8.
[50] Id. at 7.
[51] Id. at 3–4.
[52] Id. at 14–15.
[53] General Assembly, Rep. of the Comm. on the Peaceful Uses of Outer Space, 12, U.N. Doc. A/5549/Add.1, annex III (Sept. 24, 1963).
[54] Vienna Convention, supra note 18, at art. 33.
[55] Id.
[56] Id.
[57] Rescue Agreement, supra note 5.
[58] Id.
[59] Id.
[60] Id. at art. 2.
[61] Id. at art. 3–5.
[62] Id. at art. 4.
[63] McCauley, supra note 38, at 465.
[64] Id. (internal quotations omitted).
[65] Hobe, supra note 43, at 454.
[66] Outer Space Treaty, supra note 2.
[67] Rescue Agreement, supra note 5. Unlike the other languages, the author was unable to translate the Chinese version of the Rescue Agreement with any certainty. Personnel, however, may still not include tourists. See Hobe, supra note 43.
[68] 51 U.S.C. § 50902(2) defines “crew” as “any employee of a licensee or transferee, or of a contractor or subcontractor of a licensee or transferee, who performs activities in the course of that employment directly relating to the launch, reentry, or other operation of or in a launch vehicle or reentry vehicle that carries human beings.” Noticeably absent from this definition are tourists or people who might be considered “space flight participants,” a group that has its own legal definition. See 51 U.S.C. § 50902(20). Personnel, however, may still not include tourists. See Hobe, supra note 43.
[69] Crew, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english-russian/crew [https://perma.cc/6ERC-KS45] (last visited Mar. 9, 2023). Cambridge Dictionary does not offer a bilingual option for Russian. So, the author used the Collins English-Russian dictionary and searched “crew” which provided the matching word to the word used in Russian version of the Rescue Agreement. Notably, searching “personnel” using the same method, with the same dictionary does not yield a matching word to the one used in the Rescue Agreement.
[70] Équipage, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/french-english/equipage [https://perma.cc/5PGJ-3427] (last visited Mar. 9, 2023).
[71] Tripulación, Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/spanish-english/tripulacion [perma.cc/5C7L-WL4G] (last visited Mar. 9, 2023).
[72]外 空 機 人 員, Google Translate, https://translate.google.com (last visited Mar. 9, 2023).
[73] International Space Station Intergovernmental Agreement art. 11, Jan. 29, 1998, T.I.A.S. No. 12,927 [hereinafter “Space Station Agreement”]; 51 U.S.C. § 50902(2).
[74] Space Station Agreement, supra note 73, at art. 11.
[75] § 50902(2).
[76] Id. § 50902(5).
[77] Sundahl, supra note 41, at 186.
[78] Id.
[79] Id. at 185 (citing 1968 version of Webster’s dictionary).
[80] Outer Space Treaty, supra note 2, at art. VIII.
[81] Sundahl, supra note 41, at 177.
[82] Outer Space Treaty, supra note 2, at art. VIII; Von der Dunk, supra note 5, at 421.
[83] Sundahl, supra note 41, at 178.
[84] Id.
[85] Von der Dunk, supra note 5, at 422.
[86] 2001: A Space Odyssey (Stanley Kubrick Prods. 1968).
[87] Hobe, supra note 43, at 454-58.
[88] Andrew Chatzky et al., Space Exploration and U.S. Competitiveness,Council on Foreign Relations (Sept. 23, 2021), https://www.cfr.org/backgrounder/space-exploration-and-us-competitiveness [https://perma.cc/N2AM-SD8R]; McCauley, supra note 38, at 484.
[89] The White House, U.S. Space Priorities Framework 4 (Dec. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/12/United-States-Space-Priorities-Framework-_-December-1-2021.pdf [https://perma.cc/8LVE-L488].
[90] Id.
[91] Id. at 5.
[92] Id.
[93] Id.
[94] See generally, The White House,Nat’l Space Pol’y of the U.S. (Dec. 2020), https://trumpwhitehouse.archives.gov/wp-content/uploads/2020/12/National-Space-Policy.pdf [https://perma.cc/Z8PG-6UFE].
[95] Comm. on the Peaceful Uses of Outer Space, Status of Int’l Agreements Relating To Activities In Outer Space As At 1 Jan. 2022., U.N. Doc. A/AC.105/C.2/2022/CRP.10* (Mar. 28, 2022), https://www.unoosa.org/res/oosadoc/data/documents/2022/aac_105c_22022crp/aac_105c_22022crp_10_0_html/AAC105_C2_2022_CRP10E.pdf [https://perma.cc/KR7X-S8ER].
[96] 51 U.S.C. § 50902.
[97] Id. § 50902(20).
[98] We Came in Peace for All Mankind, NASA (Jul. 20, 2020), https://www.nasa.gov/image-feature/we-came-in-peace-for-all-mankind [https://perma.cc/45ZK-TM37].
[99] Id.
Indiana Law Review 