Revisiting ‘Envoys of Mankind’ in the Era of Commercial Human Spaceflight E S P I PERSPECTIVES 62 Revisiting ‘Envoys of Mankind’ in the Era of Commercial Human Spaceflight Cenan AL-EKABI, ESPI Project Manager In the past half-century, access to outer space was limited to a select few that were deemed to have the right qualifications. Today, meeting these standards is no longer necessary in reaching the edge of Earth, as now affluent private individuals can participate in outer space travel. In theory, with sufficient funding, anyone can reach space via commercial spaceflight, and claim the title of ‘astronaut’ with qualifications that are no greater than the first creature that was launched into space. With this new entrant in outer space, should we still consider astronauts to be ‘envoys of mankind’, as described in Article V of the Outer Space Treaty; and can space tourists gain that title? From the Outer Space Treaty, in benefiting mankind, must that astronaut be working as an agent of a State Party; and is the answer dependant on the activity to be conducted? Next, where do sub-orbital flights fit within these international space instruments? And does that answer require a delimitation of airspace and outer space? Moreover, which approach is needed in determining the appropriate legal regime? 1. Introduction control over such object, and over any personnel thereof, while in outer space or on a Over a half-century has passed since Yuri celestial body and that ownership over objects Gagarin made history by being the first person launched into outer space is not affected by in outer space.1 Within six years of that their presence in outer space or on a celestial milestone, the ‘Treaty on Principles Governing body or by their return to Earth. the Activities of States in the Exploration and Use of Outer Space, including the Moon and The UN ‘Agreement on the Rescue of Other Celestial Bodies’ (the ‘Outer Space Astronauts, the Return of Astronauts and the Treaty’ or otherwise ‘OST’)2 was drafted and Return of Objects Launched into Outer Space’ brought into force under the UN framework. (the ‘Rescue Agreement’ or otherwise ‘RA’)3, Article V OST requires State Parties to regard drafted shortly after the Outer Space Treaty, astronauts as ‘envoys of mankind’, stipulating served to expand on Arts V & VIII OST with that State Parties shall render to them ‘all respect to astronauts and space objects that possible assistance in the event of accident, have landed outside the territory of the state of distress, or emergency landing on the territory registry. In the Rescue Agreement the term of another State Party or on the high seas’. ‘personnel of spacecraft’ was used in place of Article VIII OST states that a State Party on the term ‘astronaut’, and the description as whose registry an object is launched into outer ‘envoy of mankind’ was not included. This space is carried shall retain jurisdiction and sparks a question as to whether the later-in- time designation intended a broader interpretation of astronaut, i.e. whether mere 1 For actual audio of Yuri Gagarin’s first flight, combined with passengers are covered by the Rescue original footage blended with scenes of the captured on the agreement as personnel of a spacecraft, and International Space Station, visit: http://www.firstorbit.org/watch-the-film. 2 See Outer Space Treaty, available at: 3 See Rescue Agreement, available at: http://www.oosa.unvienna.org/oosa/en/SpaceLaw/gares/html/g http://www.oosa.unvienna.org/oosa/en/SpaceLaw/gares/html/g ares_21_2222.html. ares_22_2345.html. ESPI Perspectives No. 62, October 2012 1 Revisiting ‘Envoys of Mankind’ in the Era of Commercial Human Spaceflight therefore entitled to the same treatment and velocity of 28,000 km/hr is required.9 Although care as a professional astronaut. a very short period of time is spent travelling through air space, orbital spaceflight is This Perspective attempts to address space governed by the current international space law tourism in respect of the humanitarian ideals of framework. the Rescue Agreement, arguing that space tourists require equivalent protection under the Sub-orbital spaceflights reach a very high multi-lateral space law treaties, i.e. humans in altitude without accelerating to the velocity space, whether on orbital or sub-orbital needed to escape Earth’s gravitational pull.10 missions, should be considered as 'astronauts’ These spaceflights have been conducted since or ‘personnel of spacecraft’; thereby covering the dawn of the space era, in the form of them under these agreements. unmanned sounding rockets.11 And some sounding rockets have covered apogees well The following Perspective discusses the various above the orbiting altitudes of the U.S. Space forms of space tourism and where that activity Shuttle and the ISS.12 is conducted; the applicability of international and national space law to commercial human In order to thoroughly assess space tourism, we space flight; and the definition of envoy of must consider the region, or altitude, in which it mankind. is conducted. Outer space can be juxtaposed with airspace both in fact and in law; while 2. The Various Forms of Space Tourism & these regimes physically and legally border Where the Activity Takes Place each other, they were developed with contradictory goals and ideals. Air law is the set The terms ‘space tourism’4, ‘sub-orbital space of national and international rules concerning tourism’5, and ‘space tourist’6 are not present in aircraft, air navigation, aero-commercial the five binding multi-lateral space law treaties, transport, and all public and private relations and none of these clarify the legal status of arising from domestic and international air these tourists in outer space. navigation.13 Space law regulates relations between States, and private entities within Space tourism can be separated into two broad those States, to determine their rights and categories, i.e. orbital spaceflight and sub- duties resulting from all activities directed orbital spaceflight. towards outer space and from outer space on the assumption that such activity is conducted An ‘orbit’ can be described as a regular, in the interest of mankind as a whole, offering repeating path that one object in space takes protection to terrestrial and non-terrestrial life, around another one under the influence of wherever it may exist.14 gravity.7 The velocity needed to escape Earth’s gravitational pull is about 11.3 km/s, i.e. about 3. International and National Space Law 40,680 km/hr.8 However, in order to orbit at an applied to Commercial Human Space altitude of 200 km above Earth, an orbital Flight Sovereignty over the airspace above a State can be traced back to the Roman axiom ‘cujus 4 ‘any commercial activity offering customers direct or indirect experience with space travel…’; see Stephan Hobe & Jürgen est solum, ejus est usque ad coelum et ad Cloppenburg, Towards a New Aerospace Convention? – infernos’; loosely translated as ‘the owner of soil Selected Legal Issues of “Space Tourism,” in PROCEEDINGS owns everything above it and below’.15 This OF THE FORTY-SEVENTH COLLOQUIUM ON THE LAW OF customary law principle of exclusive OUTER SPACE 377, 377 (2005). 5 ‘the execution of suborbital flights by privately-funded and/or sovereignty over State airspace was later privately-operated vehicles and the associated technology development driven by the space tourism market’; see ESA’s position on privately-funded suborbital spaceflight 1 (10 April 9 See Tanja Masson-Zwaan & Steven Freeland, Between 2008), Heaven and Earth: The Legal Challenges of Human Space http://esamultimedia.esa.int/docs/gsp/Suborbital_Spaceflight_E Travel, 66 Acta Astronautica 1597, 1599 (2010). SA_Position_Paper_14April08.pdf. 10 Cf. T. Sgobba, Sub-orbital Space Tourism Regulation: The 6 ‘someone who tours or travels into, to, or through space or to Safety Perspective, ESA Independent Safety Office, 1, a celestial body for pleasure and/or recreation’; see Steven http://download.esa.int/docs/ECSL/Space_Toursism- Freeland, Up, Up and … Back: The Emergence of Space The_safety_perspective_plus_notesT_Sgobba.pdf. Tourism and Its Impact on the International Law of Outer 11 See id. Space, 6 Chi. J. Int’l. L. 1, 6 (2005-2006). 12 Id. 7 See generally NASA's Human Exploration and Development 13 See I. H. PH. DIEDERIKS–VERSCHOOR, An Introduction to of Space Enterprise, What is orbit?, July 16, 2011, Space Law 7 (3rd ed. 2008). http://www.nasa.gov/audience/forstudents/5- 14 Id. 8/features/orbit_feature_5-8.html. 15 See B. F. HAVEL, Beyond Open Skies: A New Regime For 8 Id. International Aviation 99 (2009). ESPI Perspectives No. 62, October 2012 2 Revisiting ‘Envoys of Mankind’ in the Era of Commercial Human Spaceflight enshrined in the ‘Paris Convention on the It is hard to determine which regime governs an Regulation of Air Navigation’ (1919).16 Article 1 activity when that activity occurs near outer crystallised the principle of sovereignty over space, but does not orbit the Earth. There might State airspace stating “… every [State] Power be agreement that the area above an altitude of has complete and exclusive sovereignty over 110 km above sea level belongs to outer space, the air space above its territory [including while the area below the altitude of 80 km adjacent territorial waters].”17 The ‘Convention belongs in airspace.21 However, the highest on International Civil Aviation’ (1944) (the altitude an aircraft has reached was around ‘Chicago Convention’ or otherwise ‘CC’) later 37.6 km, flown by a Soviet pilot Alexandr reaffirmed that basic principle.18 Fedotov in a MiG E-266M on 31 August 197722; and except for sub-orbital experimental However, State practice evidences a customary vehicles, no aircraft or spacecraft operates law principle that has existed since the launch within the 37.6 km to 96 km range, other than in of Sputnik 1 when transitioning between the ascent or decent from outer space.23 Indeed, airspace and outer space regimes.