FIU Law Review

Volume 10 Number 2 Article 17

Spring 2015

Astronauts Redefined: The Commercial Carriage of Humans to Space and the Changing Concepts of Astronauts under International and U.S. Law

Steven A. Mirmina Georgetown University Law Center

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Recommended Citation Steven A. Mirmina, Astronauts Redefined: The Commercial Carriage of Humans to Space and the Changing Concepts of Astronauts under International and U.S. Law, 10 FIU L. Rev. 669 (2015). DOI: https://dx.doi.org/10.25148/lawrev.10.2.17

This Article is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 37333-fiu_10-2 Sheet No. 161 Side A 01/11/2016 08:19:25 * ) 1/4/16 6:45 PM NTRODUCTION I ELETE Steven A. Mirmina D OT N for hosting this symposium. O (D DOCX Law Review Law _1.4. INAL _F Astronauts under International and U.S. Law U.S. and International under Astronauts Humans to Space and the Changing Concepts of Concepts Changing the and Space to Humans Commercial transportation of astronauts to and from space, referred to On September 16, 2014, NASA announced contracts with Boeing and The international legal structure governing the carriage of humans into This article is being written for a nonprofessional audience—it is IRMINA Astronauts Redefined: The Commercial Carriage of Carriage Commercial The Redefined: Astronauts M K within as “commercial crew,” raises novel legal issues. Combined with the SpaceX to develop and certify crew transportation systems that will carry astronauts back and forth from the United States to the International Space Station (ISS). These two contracts mark America’s a space fundamental history; turning never point before in has space. outer humansto transport company to private the U.S. Government hired a space, drafted about commercial transportation of astronauts. Nor did the U.S. federal law on the fifty years ago, subject, which did was first drafted not in the 1980s fully ago. years ten and about most recently anticipate amended private * Professor of Space Law, Georgetown University Law Center, Washington, D.C. J.D., J.D., D.C. Washington, Center, Law University Georgetown Law, Space of Professor * University of Connecticut Georgetown School University Law of Center, Washington D.C. Law; While the NASA, the views expressed in this author LL.M. paper are personal to him, and also in no way reflect the views works of NASA Leiden as a lawyer University, for or the U.S. Government. The author would like to express the warmest thanks to both Bari Greenfeld of the Netherlands; LL.M. Army Corps of Engineers and Sabrina Jawed of the FAA for reviewing early drafts of this author paper. also expresses The his sincere appreciation for the generosity of Florida International University and the of members the 14 - M advent of suborbital space tourism, popular notions of the term “astronaut” changing. be may written at a high level, general enough to explain the issues to an audience other than “space lawyers.” The first part of this paper will examine some issues raised by commercial international crew space law. and The second suborbital part of space complications this tourism paper raised will under by address legal commercial crew under and U.S. law. suborbital Finally, space the tourism paper consideration. will offer some comments for future C Y 37333-fiu_10-2 Sheet No. 161 Side A 01/11/2016 08:19:25 A 01/11/2016 161 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 161 Side B 01/11/2016 08:19:25 , M K 3 C Y [Vol. 10:669 10:669 [Vol. AW ? L IKE L PACE S OOK ”L The professional driver is is driver professional The 2 REW C NTERNATIONAL I ) 1/4/16 6:45 PM And as this transportation service changes changes service transportation this as And FIU Law Review Law FIU OMMERCIAL OMMERCIAL 1 ELETE REW AND REW “C D C OT N ILL O W (The Ladd Company 1983) (detailing the story of the original Mercury 7 7 Mercury original the of story the (detailing 1983) Company Ladd (The (D TUFF DOCX HAT S W _1.4. OMMERCIAL IGHT R INAL C _F HE , http://www.nextgov.com/emerging-tech/2014/09/us-will-spend-68-billion-hiring-boeing-and See The US Will Spend $6.8 Billion Hiring Boeing and SpaceX to Build New Spacecraft The word “passengers” is being used specifically to avoid using the word “crew” which is a a is which “crew” word the using avoid to specifically used being is “passengers” word The T OV As of the writing of this paper, the detailed design of the first Unfortunately, the international legal regime does not provide a precise precise a provide not does regime legal international the Unfortunately, These three scenarios (the taxi, the rental car, and the remotely- “Astronaut” is a word that, for many, evokes a vivid mental picture. G IRMINA 1 2 3 EXT commercial rocket ship transporting humans to the ISS is still not certain. NASA has awarded billions of dollars’ worth of contracts and continues to review the specific designs. astronauts). shape in the future, no one can predict with precision how it will function. For example, will the service be more in the nature of a taxi or a rental car? Anyone who has taken a taxi knows that a professional driver “pilots” the vehicle, while “passengers” ride in the back. complicated) joystick. responsible for transporting passengers where they need to another go. option However, is the “rental car” model. If this type of service the rental car is company prepares offered, a vehicle and a “driver” hops in and pilots the car away. Of course, this model assumes minimum that drivers level have met of some training (e.g., addition to receiving in additional training from the rental car company before the form of a boarding the vehicle (e.g., where to find the turn signals, how to operate the driver’s license) in radio and GPS system, and how to call for emergency assistance). A third possibility may involve a space ship which carries humans into space while being remotely-controlled by an operator on the passengers ground. only In other need words, to board the vehicle, control while “pilots” the on vehicle the during ground launch, landing, and on orbit, using a (very 670 14 - M well-trained; dedicated; intelligent; overall, someone with “the right stuff.” right “the with someone overall, intelligent; dedicated; well-trained; controlled vehicle) collectively have the potential to call into question the “astronaut.” word the of nature very One might think of a pressurized suit sturdy with helmet various and and face sundry mask dials, (with a a perhaps some really thick gloves—so cool thick it would be solar hard to make a visor fist. that lifts up), One might also associate and certain adjectives with the profession “astronaut:” -spacex-build-new-spacecraft/94316/?oref=nextgov_today_nl (last visited Jan. 12, 2015). 12, Jan. visited (last -spacex-build-new-spacecraft/94316/?oref=nextgov_today_nl N term of art and will be addressed subsequently. subsequently. addressed be will and art of term 37333-fiu_10-2 Sheet No. 161 Side B 01/11/2016 08:19:25 B 01/11/2016 161 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 162 Side A 01/11/2016 08:19:25 6 7 The Duty to to Duty The This Treaty Treaty This 5 note 26, at 3 (citing (citing 3 at 26, note infra L. 165-66 (2009). This article is an 671 671 PACE S E. Jason Steptoe, Steptoe, Jason E. 272-75 (1997) (“The Agreement was negotiated , 35 J. See also AW The Treaty requires that States “shall “shall States that requires Treaty The L 4 note 5, at art. 2. PACE ) 1/4/16 6:45 PM S supra , there is widespread documentation that the Rescue and Return ELETE Astronauts Redefined Astronauts D OT N O (D NTERNATIONAL I DOCX _1.4. travaux preparatoires TUDIES IN INAL _F ,S Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Objects of Return the and Astronauts of Return the Astronauts, of Rescue the on Agreement Rescue & Return Agreement, the In Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Outer of Use and Exploration the in States of Activities the Governing Principles on Treaty Historically, numerous non-professional astronauts have gone into It is reasonable to inquire why the Rescue and Return Agreement did The OST was followed a year later by another treaty focused, in part, HENG IRMINA 5 6 7 4 C M K IN Agreement was hastily drafted. For more on this, Rescue Space see Tourists and the Return Private Spacecraft discussion in Mark Sundahl, excellent piece of scholarship on the humanitarian duty to rescue space travelers as well as the meaning of the terms of the Rescue and Return Agreement. B not use the term “astronaut.” Did the drafters intend to use a broader term? And, why would it make a difference? One distinction could be that not all space travelers (or “personnel of astronauts. a spacecraft”) have been professional space. Some of those include: a teacher in space manager (Dennis American Tito); engineer/investment a (Christa U.S. Senator (Bill McAuliffe); an Nelson); a Saudi Arabian Sultan (and first Arab and Muslim in space, That State also must notify the launching authority as well as the Secretary rescue. prompt a affect to taking is it steps the of U.N. the of General 2015] definition. The Outer Space Treaty (OST) speaks of “astronauts” in its fifth article, but never defines the term. 14 - M also does nothing to define the term “astronaut.” In fact, it seems to cause additional ambiguity. While the term “astronauts” is used twice in the title and twice in the Preamble, the term does not appear again in the operative text of the Treaty. Rather, the “personnel operative of text a lays spacecraft.” Thus, out if duties “personnel of that a accident, run spacecraft” to have an emergency jurisdiction or of a Contracting Party, then that unintended State “shall immediately take all landing possible steps to rescue them and render them all necessary assistance.” in territory under the launch vehicle—namely, the Rescue and Return Agreement. regard astronauts as envoys of mankind” and furthermore that “render States to them all possible assistance” if will there is an accident or emergency landing. Certainly, an “envoy (presumably of higher than mankind” an is Ambassador nation). one only of envoy an considered or an Diplomat, enviable which distinction would be on rescuing astronauts and returning them to the state that registered the 8843 [hereinafter Outer Space Treaty or OST]. or Treaty Space Outer [hereinafter 8843 Launched into Outer Space, Apr. 22, 1968, U.N.T.S. vol. 672, No. 9574 [hereinafter Rescue & Return Agreement]. and adopted by the U.N. Committee on the Peaceful .”). . . . days brieffive incredibly of the period in Assembly General Uses of Outer Space (COPUOS) and the U.N. Space, Including the Moon and Other Celestial Bodies, art. 5, Oct. 10, 1967, U.N.T.S. vol. 610, No. C Y 37333-fiu_10-2 Sheet No. 162 Side A 01/11/2016 08:19:25 A 01/11/2016 162 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 162 Side B 01/11/2016 08:19:25 M K C Y (Sarah (Sarah , 10 FIU L. [Vol. 10:669 10:669 [Vol. Suborbital space space Suborbital 10 , What Sarah Brightman’s ‘Postponed’ Phantom Phantom of the Opera ). Jeffrey Kluger Jeffrey See infra (May 13, 2015), http://time.com/3857685/sarah-brightman- 2015), 13, (May ) 1/4/16 6:45 PM FIU Law Review Law FIU IME , Vol. 115, Oct.–Nov. 2015, at 185–94. at 2015, Oct.–Nov. 115, Vol. , , NASA, http://www.nasa.gov/mission_pages/station/expeditions/ ELETE National Regulation of Suborbital Flights: A Fresh View , T D OT N 11 O (D note 7, at 189. STRONAUTICA A DOCX It is reasonable to question whether they are “astronauts” as as “astronauts” are they whether question to reasonable is It supra 9 _1.4. CTA 8 What Is in a Name? Perceived Identity, Classification, Philosophy, and Implied Duty of , A INAL Rafael Moro-Aguilar, Moro-Aguilar, Rafael _F See Sundahl, Expedition 44 Crew Profiles For an interesting summary of the philosophical, legal, poetic, and cultural values associated Another instance in which there may be a new form of “non- The term “non-professional astronaut” is not intended to indicate that IRMINA 9 10 11 8 tourism, a topic covered by other papers in the issue of this journal, raises similarconsiderations. expedition44/#.VLPdqGPviVo (last visited, Jan. 12, 2015). Sarah Brightman was scheduled for launch in October 2015. However, on May 13, 2015, she issued a statement on her Facebook page that she was postponing her trip to space “for personal family reasons.” The announcement consider rescheduling her trip suggests at a future date. that she will Mission Says About Space Tourism astronaut as well. Without doubt, the pilot would be within the scope of the term “personnel of a spacecraft” as it Agreement. is However, used when in the the operational Rescue model and changes Return service” from to a one “taxi of a spaceship remotely-controlled delivering astronauts from to the or from ground, the surface of the earth. Whether that pilot would the be considered “personnel of ISS a “pilot” may never spacecraft” or leave an astronaut may the be debated. However, at least under domestic U.S. law, that pilot could likely be considered “Crew.” In fact, in this hypothetical, terrestrially remotely-controlled space ship, the pilot may be professional astronaut” may commercial be crew model. seen In in the company transports taxi astronaut-passengers to and from one the ISS, there model,may be under possible which a variant a commercial question of as to whether the the pilot of the vehicle would be considered an 672 Sultan bin Salman bin Abdulaziz Al Saud); an Internet security and specialist billionaire (Mark Shuttleworth); a Canadian eater, clown, and founder stilt-walker, of Cirque fire du Soleil (Guy Laliberte); and an who entertainer achieved fame and fortune singing in Brightman). 14 - M that term is used in travelers the were Outer intended Space constitute to spacefarers these Clearly, Treaty; Treaty. be that of drafters the by and mankind” within query the whether scope of these the “personnel of term a spacecraft,” and are thus entitled to rescue and “envoys “all possible of assistance” in the event of distress or emergency. Rev. 679 (2015) (pages 679–711 in this issue, this in 679–711 (pages (2015) 679 Rev. space-tourism-mission/. these space travelers are unprofessional—rather, something other their than astronaut: i.e.: “professions” teacher; software engineer; are politician; or entertainer. with the various forms and incarnations of “spacefarers” from around the world, see Sara Langston and Sarah Jane Pell, ‘Astronaut’ the 37333-fiu_10-2 Sheet No. 162 Side B 01/11/2016 08:19:25 B 01/11/2016 162 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 163 Side A 01/11/2016 08:19:25 it never never it 12 AW L PACE S 673 673 Under the current statutory statutory current the Under 14 Ronald Reagan’s Signing Statement on the the on Statement Signing Reagan’s Ronald OMESTIC See 13 U.S. D ) 1/4/16 6:45 PM ELETE Astronauts Redefined Astronauts REW AND REW D C OT N O (D DOCX _1.4. OMMERCIAL OMMERCIAL C INAL For example, certain employees of Boeing or Space X may be be may X Space or Boeing of employees certain example, For _F 15 When the original Commercial Space Launch Act (CSLA) was passed in 1984, its purpose purpose its 1984, in passed was (CSLA) Act Launch Space Commercial Commercial Space Launch Amendments Act, 49 U.S.C. § 70101 (2004). original et the 400.1 When part C.F.R., 14 at found be can regulations FAA The (2014). 50904(a) § U.S.C. 51 51 U.S.C. § 50902(2) (2014). That stretch of imagination is an indicator that, when Congress passed In the past, NASA sent its astronauts into space on U.S. government- The CSLA gives the Federal Aviation Administration (FAA) exclusive Are astronauts considered crew? considered astronauts Are The first category is called “Crew.” Under the CSLA, “Crew” is a term IRMINA 12 13 14 15 M K the very idea seemedunrealistic. have systemswould launch space developed privately of putting NASA astronauts on the commercially-owned, “Commercial Space Launch Amendments Act (CSLAA),” owned rockets: such as Mercury, Gemini, Apollo, and eventually the Space Shuttle. Even when astronauts traveled on a foreign launch vehicle, such as the Russian Soyuz, that vehicle was government-owned. A generation ago, licensing jurisdiction over commercial spaceflight. The FAA is authorized to license launches requirements and applicable reentries to conducted in and commercial the U.S. or regulate space by a U.S. transportation the citizen. activities procedures and 2015] the only “Crew” and, perhaps surprisingly, the passengers traveling in the remotely-controlled space ship may not be. This paradox is examined in the section. next 14 - M operations of or in a launch vehicle or reentry vehicle beings.” that carries human approach, there are two defined categories of individuals that can be carried within a commercial launch or reentry appropriate for NASA (or vehicle. its ISS International Partner) astronauts flying on Neither category seems commerciallyvehicles. launch developed of art, different from its dictionary definition. Specifically, “Crew” refers to “any employee of subcontractor of a a licensee licensee or transferee, course of who or that employment performs directly relating to activities the launch, transferee, reentry, in or other the or of a contractor or considered the possibility that private NASA companies astronauts would be to transporting the active. still was program ISS. Shuttle NASA’s When the CSLAA was passed in 2004, was to stimulate the nascent commercial space industry. Commercial Space Launch Act, The American Presidency Project, http://www.presidency.ucsb.edu/ws/ 2015). 5, Mar. visited (last ?pid=39335 seq. C Y 37333-fiu_10-2 Sheet No. 163 Side A 01/11/2016 08:19:25 A 01/11/2016 163 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 163 Side B 01/11/2016 08:19:25 M K 16 C Y (emphasis (emphasis Id. [Vol. 10:669 10:669 [Vol. In contrast, professional professional contrast, In 18 employees, not employees of the the of employees not employees, Legal Interpretation, 78 Fed. Reg. 231, 72011-13 (Dec. (Dec. 72011-13 231, Reg. Fed. 78 Interpretation, Legal See ) 1/4/16 6:45 PM FIU Law Review Law FIU government L. 1 (2005). 1 L. ELETE , carried aboard a launch vehicle or reentry vehicle.” D OT PACE N note 1. 19 O (D supra , 31 J. S J. 31 , , 17 DOCX OV G _1.4. EXT INAL N Space Travel Law (and Politics): The Evolution of the Commercial Space Launch _F See “[S]pace flight participants wishing to ride on board a launch vehicle have chosen to to chosen have vehicle launch a board on ride to wishing or transferee, participants licensee, flight a of “[S]pace contractor independent or employee “any as defined is Crew To help alleviate some of the confusion which could potentially arise, the FAA responded to a a to responded FAA the arise, potentially could which confusion the of some alleviate help To But the issues surrounding SFP classification are far more complicated Are astronauts considered Space Flight Participants? Flight Space considered astronauts Are The second category of passenger envisioned by the CSLA is the IRMINA 18 19 16 17 permittee, or of a contractor or activities subcontractor in the of course of a that employment or licensee, contract directly transferee, relating to the or launch, reentry, permittee, operation or other of who or in performs a launch vehicle or reentry vehicle that (2014) carries (Definitions). A human crew consists beings.” of 51 flight crew U.S.C. and § any remote 50902 operator. “Space flight participant means an individual, who is not crew added). astronauts train for years for their missions. Nevertheless, considering the wording of the statute, since astronauts are not “employees of the licensee,” they cannot be Crew—therefore, they have to be SFPs, even if they are the board. on persons only than any personal desire to be categorized as “Crew” rather than an “SFP.” The CSLA puts certain requirements on SFPs that may be inappropriate for NASA or other government astronauts. For example, the CSLA requires However, However, NASA and International Partner considered (IP) crew if astronauts they are may not be commercial licensee. For this reason, the CSLA definition of Crew confusion. to lead could “Space flight participant (SFP).” At considered this group of spacefarers primarily as adventure-seeking the tourists time of its as opposed passage, to professionally Congress trained astronauts. 674 Crew for NASA’s “commercial crew” missions, because those companies are under contract with the government to operate a launch vehicle. 14 - M undertake a risky venture of their own accord.” H.R. Rep. No. 108-429, at 12 (2004). Rep. Boehlert, a proponent of the Commercial Space Launch Amendments Act of 2004 referred to private human space flight as the “preserve of visionaries and daredevils and adventurers.” Timothy Robert Hughes & Esta Rosenberg, 2004 of Act Amendments question NASA raised concerning whether the FAA would restrict flying NASA astronauts, as who space would be flight participants, from launch or reentry. See the “Legal engaging Interpretation” of FAA Assistant Chief Counsel for International Law, in operational functions during an Legislation, and FAA-licensed Regulations Mark Bury, entitled “Interpretation Astronauts Concerning During a Involvement Licensed Launch of or Reentry,” NASA dated December 2, 2013, which states astronauts that may NASA engage in operational activities during a licensed launch to success. ensure The Interpretation safety reasoned that: “Because and NASA astronauts mission are not the untrained space-flight participants originally contemplated by the FAA, the considerations underlying the policy have, at best, a limited applicability to NASA astronauts.” 2013). 2, 37333-fiu_10-2 Sheet No. 163 Side B 01/11/2016 08:19:25 B 01/11/2016 163 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 164 Side A 01/11/2016 08:19:25 If the the If 22 Moreover, the CSLA CSLA the Moreover, 20 675 675 ) 1/4/16 6:45 PM 21 note 18, at 59. ELETE Astronauts Redefined Astronauts D OT supra N O ms against the Government. (D The IGA is a multilateral agreement among the United United the among agreement multilateral a is IGA The 24 DOCX 23 _1.4. INAL _F Agreement Among the Government of Canada, Governments of Member States of the the of States Member of NASA, by raised question a to Governments responding letter a form the in issued Canada, interpretation legal a In of Government the Among Agreement The reciprocal waiver of claims of appendix E of part 440 requires the SFP to “waive[ ] and and ] “waive[ to SFP the requires 440 part of E appendix of claims of waiver reciprocal The (establishing (2014) 8102(a) § U.S.C. 5 Act, Compensation Employee Hughes & Rosenberg, Federal the e.g., See, Another potential issue raised by the CSLA’s requirement that SFPs Article Article 16 of the IGA contains a cross-waiver of liability. The IGA However, if the requirement to waive claims against the Government IRMINA 23 24 20 21 22 M K waive claims is that it appears to conflict with the Agreement (IGA). ISS Intergovernmental cross-waiver has an explicit carve out person” “claimscarve for natural madeexplicit a cross-waiveran by has for “bodily injury to, or other impairment of health of, or death of such States and fourteen other countries establishing a framework for operation and utilization of the ISS. transports IP astronauts to the ISS, Underit does so in fulfillment of its obligations Article 12 of the to IGA, provide when NASA launch and (whether return or not transportation NASA services uses X). Space or Boeing commercialas a (such or Shuttle) provider service to a government the vehicle other (such IPs as the Space 2015] that SFPs waive clai 14 - M were applied to NASA astronauts flying other as applicable Federal SFPs, laws. For example, it employees of could the civil conflict service with and the military are entitled to compensation for their injuries. U.S. military personnel are entitled to disability compensation when they get injured in the scope of their of scope the in injured get they when compensation disability to entitled are personnel military U.S. employment. See generally, the Military Personnel and Civilian Employees’ Claims Act (31 (MPCECA). 3721(2014) U.S.C. § FAA explained that the CSLAA and the FAA repeal implementing either FECA regulations or its did military counterparts, not and thus intend NASA astronauts to would not impliedly have to reciprocal sign waivers of claims the that the statute requires of space flight participants generally. See the Legal Interpretation of FAA Assistant Chief Counsel for International Law, Legislation, and Regulations Mark 2013. 23, December dated Bury, European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning (IGA). Station Space the Cooperation on the Civil International release[ ] claims it may have Property Damage sustained against by the Space Flight the Participant. . . regardless of fault,” United and “hold harmless . . . States for and Bodily indemnify Injury, the including United . . Death, . States from or and Participant.” Flight Space by includingInjury, sustained Bodily Death, or Damage Property for anyone against . . . liability arising out of claims brought by compensation for federal employees for job-related injury or death regardless of fault). Also, active duty CSLA mandated that astronauts waive claims for injuries course suffered of in the their employment, the result policy. public would be unjust and contrary to requires “individuals to undertake space flight at financial their risk. own Space flight physical participants and are excluded from indemnification eligibility under the 2004 Space Act and are not entitled to the benefits of coverage.” insurance liability C Y 37333-fiu_10-2 Sheet No. 164 Side A 01/11/2016 08:19:25 A 01/11/2016 164 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 164 Side B 01/11/2016 08:19:25 M K C Y 7 (2008), (2008), 7 [Vol. 10:669 10:669 [Vol. considered to be ISS crew crew ISS be to considered ? are ORWARD Astronaut Rescue and Return in an Era of Planetary F AY ) 1/4/16 6:45 PM FIU Law Review Law FIU W ELETE D OT N O (D DOCX _1.4. , 51 U.S.C. §50919(e)(1) (2014), which states that FAA licensing generally must be 27 25 These spacefarers are covered under Article 11 (Crew) of the the of (Crew) 11 Article under covered are spacefarers These INAL 26 _F But see See discussion in E. Jason Steptoe, Steptoe, new Jason a E. add in to CSLA the amend discussion it See that Congress to proposed jointly have FAA and NASA As shown by the above examples, the U.S. domestic statutory Both domestic and international steps may need to be taken to start The bifurcation of Crew versus Space Flight Participants becomes IRMINA 26 27 25 IGA: “Each Partner has the right to provide qualified personnel to serve on members.”crew Station Space as basis equitable an bifurcation of all spacefarers into two distinct categories of has Crew the potential to or create both confusion SFP and unintended results in relation commercialto crew. resolving some of the issues raised by the advent of commercial crew and suborbital space tourism. Domestically, it appears that a legislative change may need to occur. possibility Congress currently under consideration is may the creation of decide a third category to of amend spacefarer the under CSLA. the One Participant.” law that is neither “Crew” nor “Space Flight 676 natural person.” Since the IGA expressly permits claims of natural persons against the government for “bodily injury to, or other impairment of health of, or death,” it appears to conflict with the CSLA’s requirement that SFPs waive claims against the government, at least as far as injury and death are concerned. 14 - M Exploration: “Envoys of Mankind,” “Space (unpublished Flight manuscript, Participants” on and Celestial file D.C.). Washington, Administration, Space and Aeronautics National Law, International Settlers with author) (Steptoe was then-Associate General Counsel definition for of “government astronaut” that would include USG other ISS astronauts Partners pursuant to the IGA. See letters from Charles and F. Bolden, Jr., Administrator of NASA, astronauts provided by and Michael P. Huerta, Administrator of the FAA to the President of the Senate, Speaker of the House, agreements enabled the FAA to issue a separate legal interpretation dated November 21, 2013, clarifying clarifying 2013, 21, November dated interpretation legal separate a issue to FAA the enabled agreements that International Partner astronauts would not have to waive their claims for personal injury or death, even if they are considered SFPs, since that entitlement to bring those claims was protected by the IGA, Article 16.3(d)(2). This interpretation might not apply to habitat).lunar commercial a to traveling were they if (e.g., IGA ISS the of scope the outside other astronauts traveling to space that are carried out “consistent with convention, or agreement in an force between the Government and the obligation Government of a foreign country.” the The United IGA is such States an agreement, as Government are the assumes four with bilateral Memoranda the in of Understanding international NASA a partner signed space Treaty, agencies contemporaneously with the IGA. These international the Russian Space Agency to visit the ISS members in the parlance of agencies. NASA and its international partner space even more complex cooperation, which uses the term “spaceflight participant” [sic] in a manner within the completely distinct from the FAA. “Spaceflight participants” [sic] who paid specific context of Space Station 37333-fiu_10-2 Sheet No. 164 Side B 01/11/2016 08:19:25 B 01/11/2016 164 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 165 Side A 01/11/2016 08:19:25 at 193 (“This id. 191 (2000) (“Given that the the that (“Given (2000) 191 677 677 RACTICE P AW AND L REATY T ) 1/4/16 6:45 PM ELETE Astronauts Redefined Astronauts ODERN D 28 ,M OT N O UST A (D DOCX NTHONY _1.4. A INAL See _F Article 31(3)(a) of the Vienna Convention on the Law of Treaties (regarding Treaty Treaty (regarding Treaties of Law the on Convention Vienna the of 31(3)(a) Article Internationally, Internationally, the road ahead may prove more challenging. I am not an advocate for frequent changes in laws and but laws and institutions must go hand constitutions, in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths opinions discovered change, with and the change manners of and circumstances, institutions must The Rescue and Return Agreement and the Commercial Space Launch IRMINA 28 M K parties can agree later to modify interpretation the of treaty, its they terms, can and also technique this is subsequently can particularly agree amount, useful if on in there an effect, is authoritative a provision.”). a of operation to need an to fill amendment.”); a lacuna, to update a term or postpone the Ranking of the Space Subcommittee, dated February 5, 2015. The purpose of this legislative change is to resolve the potential conflicts raised when astronauts. government cover to intended never was seemingly, which, term a participants,” “government astronauts” are considered “Space flight Chairman and Ranking of the Senate Commerce Committee, Chairman and Ranking of the Science and Space Subcommittee, Chairman and Ranking of the House Science Committee, and the Chairman and assistance to space passengers to the responsible faring state, merely because they were transported to passengers, or space fail to by return internationally space a that faring commercially commercial delivered rescue or spacefarers company. return because will they be are Potentially, treaties, then states might consider an not “agreed interpretation” of the existing denied considered “astronauts” should under the treaties it (either surface bilaterally ambiguityterminology.in or multilaterally) to resolve any perceived 2015] Amendment of the Agreement (to fill in some of the gaps Outer or that ambiguities have arisen with Space Treaty the advent of time) is or not a reasonable prospect for the the foreseeable future. So, short of Rescue amending the Treaty, other steps should be and considered. It may Return turn out that a formal Treaty amendment may not be necessary. There has not been widespread discussion of denying commercial space the passengers privileges to which personnel of Rescue a and spacecraft Return are Agreement. entitled It under is the doubtful that a State would refuse 14 - M interpretation) provides that Treaties are ordinary to meaning, and in the context be of the Treaty’s object interpreted and purpose. Furthermore, the in article states good that faith, if in there accordance is with any their ambiguity agreement regarding between a the Treaty’s parties terms, regarding reference provisions.” may the be interpretation made of to the “subsequent treaty or the application of its reasonable expectations. And, law can MemorialJefferson the of walls Washington,the in into carved D.C.: and must adapt similarly. As is Act were both drafted to reflect the realities of space exploration at the time time the at exploration space of realities the reflect to drafted both Act were of their creation, as well as what was reasonably expected to occur immediate in future. the However, human ingenuity has never been confined by C Y 37333-fiu_10-2 Sheet No. 165 Side A 01/11/2016 08:19:25 A 01/11/2016 165 Side Sheet No. 37333-fiu_10-2 37333-fiu_10-2 Sheet No. 165 Side B 01/11/2016 08:19:25 M K C Y ,http:// ORG . [Vol. 10:669 10:669 [Vol. ONTICELLO , M 29 ) 1/4/16 6:45 PM FIU Law Review Law FIU ELETE D OT N O (D Quotations on the Jefferson Memorial DOCX _1.4. INAL _F Monticello, Monticello, Thomas Jefferson realized that no one can reliably legislate what is yet advance also to keep times.withto the pace also advance IRMINA 29 to be imagined—terrestrially or otherwise. Laws need to evolve following technological advancements. The concept constant for of nearly fifty “astronaut” years, while has commercial innovation expand remained the continues scope of who can reach to the stars. The reality of space travel has changed, and it will continue to change into the future. And in order to stay same.termthe the do mayof to conceptions “astronaut” need our current, 678 14 - M www.monticello.org/site/jefferson/quotations-jefferson-memorial (last visited Jan. 12, 2015). 12, Jan. visited (last www.monticello.org/site/jefferson/quotations-jefferson-memorial 37333-fiu_10-2 Sheet No. 165 Side B 01/11/2016 08:19:25 B 01/11/2016 165 Side Sheet No. 37333-fiu_10-2