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 Follow this and additional works at: https://ecollections.law.fiu.edu/lawreview Part of the Other Law Commons Online ISSN: 2643-7759 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 14 - MIRMINA_FINAL_1.4.DOCX (DO NOT DELETE) 1/4/16 6:45 PM Astronauts Redefined: The Commercial Carriage of Humans to Space and the Changing Concepts of Astronauts under International and U.S. Law Steven A. Mirmina* INTRODUCTION On September 16, 2014, NASA announced contracts with Boeing and 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 a fundamental turning point in America’s space history; never before has the U.S. Government hired a private company to transport humans to outer space. The international legal structure governing the carriage of humans into space, drafted about fifty years ago, did not fully anticipate private commercial transportation of astronauts. Nor did the U.S. federal law on the subject, which was first drafted in the 1980s and most recently amended about ten years ago. Commercial transportation of astronauts to and from space, referred to within as “commercial crew,” raises novel legal issues. Combined with the advent of suborbital space tourism, popular notions of the term “astronaut” may be changing. This article is being written for a nonprofessional audience—it is written at a high level, general enough to explain the issues to an audience 37333-fiu_10-2 Sheet No. 161 Side A 01/11/2016 08:19:25 other than “space lawyers.” The first part of this paper will examine some issues raised by commercial crew and suborbital space tourism under international space law. The second part of this paper will address legal complications raised by commercial crew and suborbital space tourism under U.S. law. Finally, the paper will offer some comments for future consideration. * Professor of Space Law, Georgetown University Law Center, Washington, D.C. J.D., University of Connecticut School of Law; LL.M. Leiden University, the Netherlands; LL.M. Georgetown University Law Center, Washington D.C. While the author also works as a lawyer for NASA, the views expressed in this paper are personal to him, and in no way reflect the views of NASA or the U.S. Government. The author would like to express warmest thanks to both Bari Greenfeld of the Army Corps of Engineers and Sabrina Jawed of the FAA for reviewing early drafts of this paper. The author also expresses his sincere appreciation for the generosity of Florida International University and the members of the Law Review for hosting this symposium. C M Y K 37333-fiu_10-2 Sheet No. 161 Side B 01/11/2016 08:19:25 14 - MIRMINA_FINAL_1.4.DOCX (DO NOT DELETE) 1/4/16 6:45 PM 670 FIU Law Review [Vol. 10:669 WHAT WILL “COMMERCIAL CREW”LOOK LIKE? As of the writing of this paper, the detailed design of the first 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.1 And as this transportation service changes 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.2 The professional driver is responsible for transporting passengers where they need to go. However, another option is the “rental car” model. If this type of service is offered, the rental car company prepares a vehicle and a “driver” hops in and pilots the car away. Of course, this model assumes that drivers have met some minimum level of training (e.g., in the form of a driver’s license) in addition to receiving additional training from the rental car company before boarding the vehicle (e.g., where to find the turn signals, how to operate the 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 ground. In other words, passengers only need to board the vehicle, while “pilots” on the ground control the vehicle during launch, landing, and on orbit, using a (very complicated) joystick. COMMERCIAL CREW AND INTERNATIONAL SPACE LAW These three scenarios (the taxi, the rental car, and the remotely- controlled vehicle) collectively have the potential to call into question the 37333-fiu_10-2 Sheet No. 161 Side B 01/11/2016 08:19:25 very nature of the word “astronaut.” “Astronaut” is a word that, for many, evokes a vivid mental picture. One might think of a pressurized suit with various and sundry dials, a sturdy helmet and face mask (with a cool solar visor that lifts up), and perhaps some really thick gloves—so thick it would be hard to make a fist. One might also associate certain adjectives with the profession “astronaut:” well-trained; dedicated; intelligent; overall, someone with “the right stuff.”3 Unfortunately, the international legal regime does not provide a precise 1 See The US Will Spend $6.8 Billion Hiring Boeing and SpaceX to Build New Spacecraft, NEXTGOV, http://www.nextgov.com/emerging-tech/2014/09/us-will-spend-68-billion-hiring-boeing-and -spacex-build-new-spacecraft/94316/?oref=nextgov_today_nl (last visited Jan. 12, 2015). 2 The word “passengers” is being used specifically to avoid using the word “crew” which is a term of art and will be addressed subsequently. 3 THE RIGHT STUFF (The Ladd Company 1983) (detailing the story of the original Mercury 7 astronauts). C M Y K 37333-fiu_10-2 Sheet No. 162 Side A 01/11/2016 08:19:25 14 - MIRMINA_FINAL_1.4.DOCX (DO NOT DELETE) 1/4/16 6:45 PM 2015] Astronauts Redefined 671 definition. The Outer Space Treaty (OST) speaks of “astronauts” in its fifth article, but never defines the term.4 The Treaty requires that States “shall regard astronauts as envoys of mankind” and furthermore that States will “render to them all possible assistance” if there is an accident or emergency landing. Certainly, an “envoy of mankind” is an enviable distinction (presumably higher than an Ambassador or Diplomat, which would be considered an envoy of only one nation). The OST was followed a year later by another treaty focused, in part, on rescuing astronauts and returning them to the state that registered the launch vehicle—namely, the Rescue and Return Agreement.5 This Treaty 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 operative text lays out duties that run to “personnel of a spacecraft.” Thus, if “personnel of a spacecraft” have an accident, emergency or unintended landing in territory under the jurisdiction of a Contracting Party, then that State “shall immediately take all possible steps to rescue them and render them all necessary assistance.”6 That State also must notify the launching authority as well as the Secretary General of the U.N. of the steps it is taking to affect a prompt rescue. It is reasonable to inquire why the Rescue and Return Agreement did not use the term “astronaut.” Did the drafters intend to use a broader term?7 And, why would it make a difference? One distinction could be that not all space travelers (or “personnel of a spacecraft”) have been professional astronauts. Historically, numerous non-professional astronauts have gone into 37333-fiu_10-2 Sheet No. 162 Side A 01/11/2016 08:19:25 space. Some of those include: a teacher in space (Christa McAuliffe); an American engineer/investment manager (Dennis Tito); a U.S. Senator (Bill Nelson); a Saudi Arabian Sultan (and first Arab and Muslim in space, 4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. 5, Oct. 10, 1967, U.N.T.S. vol. 610, No. 8843 [hereinafter Outer Space Treaty or OST]. 5 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, U.N.T.S. vol. 672, No. 9574 [hereinafter Rescue & Return Agreement]. 6 Rescue & Return Agreement, supra note 5, at art. 2. 7 In the travaux preparatoires, there is widespread documentation that the Rescue and Return Agreement was hastily drafted. For more on this, see the discussion in Mark Sundahl, The Duty to Rescue Space Tourists and Return Private Spacecraft, 35 J.