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«LEGAL AND ETHICAL FRAMEWORK FOR ASTRONAUTS IN SPACE SOJOURNS Proceedings 29 October 2004 House of UNESCO 125, avenue de Suffren, Paris 7e Legal and ...»

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On such occasion, the MCB deliberated that Partner States should commit to not suggesting further flights for non-professional subjects until the criteria for selecting crew members were definite and adopted by all Partners118.

The final decision on the matter was made after months of negotiations, during which the MCB agreed to a common regulation applicable to the commercial branch of space tourism. 119: “The rules of road for travellers to the International Space Station”. These new criteria are to be applied to all crew members of the Space Station, to professional astronauts and to other participating members such as scientist, tourists, academics and astronauts of non Partner States.

The participating crew will not be obliged to perform the intensive training established for professional astronauts of other Partner States, but their freedom of movement and stay on board shall be limited.

The new policy for the selection of the space tourist stresses the necessity to reassure other Partner States on the trustworthiness of the person on board the Station. The so-called “taxi” flights transporting visitors to the Station shall respect previously planned flight priorities. Coordination and management of the visitor is totally up to the requesting Partner.

The visitor shall access the space structure being transported by the vehicle of the Agency with which commercial agreements have been made. Physical requirements for admittance to a space flight are similar to those made for professional astronauts. Abuse of alcohol and drugs, and also criminal records or belonging to organisations unbecoming to the Station’s programme are enough to exclude any possibility of taking part in a space flight.

Appointment of participants must be notified at least six months before the planned flight date.

The MCOP shall accept the appointment and appeal may be forwarded to the MCB for any eventual refusal.

Two categories of visitors have been established: short term visitors, appointed by the Space Agencies and destined to activities on board the Station such as the conduction of scientific experiments, and visiting crew members such as journalists, tourists. etc.120.

The latter shall be trained with the members of the official hosting crew. Short term visitors shall also attend a further week’s training at NASA Johnson Space Center if they are flying on board ESA-HUMAN SPACE FLIGHT, International Space Station partners grant flight exemption for Dennis Tito, Internet: http://www.es.int/export/esaHS/ESA5DOVRXLC_iss_2.html “Rules of Road” for travellers to the International Space Station. Document adopted by the MCB to support the development of the new branch of space tourism. See the article published on the MSNBC website.

http://www.msnbc.com/news/694231.asp?cp1=1#BODY, Jan 31st 2002 Short-term visitors are scientists, researchers and those subjects engaged in research activities. Visiting crew members: Simple visitors are paying individuals who wish to travel for journalistic or tourism reasons. In the “Marco Polo” mission which departed from Baikonur of April 25th 2002, there were three astronauts on the Russian “Soyuz” shuttle with different qualifications: the Commander of the Shuttle, Russian Iuri Ghidzenko, a short term visitor, Italian Roberto Vittori – who after having operated as a flight engineer in cooperation with the Soyuz Commander on the Soyuz itself, also conducted a series of experiments, on board the Station, sponsored by the Italian Space Agency within the agreement between ESA, the Russian Space Agency and RSC Energia-, and finally a visiting crew member, Southafrican Mark Shuttleworth, the second paying space tourist on the Station

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the shuttle or at RKA Star City if they are flying with the Russian Agency. Visitors must have a good knowledge of Russian language if they are traveling with the RKA or of English if they are traveling with NASA.

Other questions, such as further studies on the problem of liability for eventual damage during a space tourism flight, or details concerning medical requirements and training are being examined by the competent discussion panels.

Commercial exploitation of the Station is now within the space policies of all Partner States and many consider that space tourism might be one of the most important areas for space development121. Requests for space travel and visits to the Station are increasing and a second paying tourist, South African Mark Shutlleworth, was taken to the Station on April 25th 2002 by the Russian Agency on board the Soyuz. The South African millionaire paid the same amount as Mr. Tito but he took a more active part in the space flight. He accepted the previously agreed rules of road and was therefore allowed to move freely on the Station, whereas Mr. Tito was only allowed to stay in the Russian module, and also carried out some experiments on genetic engineering. At present the only possibility is offered by the Russian Agency, because the United States are still considering whether to sustain the development of this commercial branch. The 1996 National Space Policy includes various provisions for the promotion of commercial space activity. There is a general encouragement to introduce this sector of space tourism in the National Space Policy with special attention to the safety of tourists and to the economic activity of carriers offering the service122. The organizations managing support and regulation of commercial launch activities in the United States could also be appointed the supervision of space tourism 123.

Jurisdiction over launch vehicle and over space tourist Space commercialisation has become generally accepted by the International Community. There are several space industries that have gone through a commercialization and privatization process, with the support and backing of space law.

The new branch of space tourism can be introduced in the commercialisation and privatisation of outer space, along with various other examples, like the communications satellites field, direct television broadcasting industries and remote sensing space transportation and private launch services124. The States, which launch space transport vehicles, have realized the commercial utility of space tourist transport.

The Commander of the launch vehicle retains jurisdiction over the vehicle itself. Crew safety provisions and measures must be contemplated during space flights on board Space Stations and DISCOVERY ON LINE, Space Entrepreneurs, Space Tourist, Internet : http://www.discovery.com/stories/science/entrepreneurs/tourist.html; for the increase of space tourism see TAKAYA-LEE, Space Tourism and Permanent Human Settlement: Legal and Regulatory Issues, Proc. of the 43rd Colloquium on the Law of Outer Space, Rio de Janeiro 2000, p. 142 SCOTT, Policy/Legal Framework for Space Tourism regulation, Journal of Space Law, 2000, vol. 23, p.1 Title 49, subtitle IX of the US Code designates the Secretary of Transportation (DOT) and his executive agent the Administrator of the Federal Aviation Administration (FAA) as the authorities controlling launch activities WEEKS, Snapshot: the process of change in international space law politics, in Proc. of the 46th Colloquium on the Law of Outer Space, Brema 2003, p. 148 and foll.

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launch vehicles125. The importance of maintenance and safety regulations for space vehicles is evident.126 Art. XI.3 of the MOU127 signed between NASA and ESRO in September 1973, states that “ at least for the issue concerning the control of the mission, the safety of the space object and for all that concerns navigation” the Commander of the Shuttle retains jurisdiction over objects and persons onboard, regardless of nationality128.

The launching State retains jurisdiction over personnel onboard the space object, but a problem arises concerning the fact that space tourists are not part of personnel, they are just passengers129.

The space law is not yet conformed to the development of this innovative field. In space law there is still no definition that clearly draws the line between crew members and passengers130, as in air law.

Air law has classified two different kinds of persons on board: the crew on one side and the passengers on the other; this division leads to a different legal consideration, and to a different protection and treatment. First of all, the crew members, according to art. 32 of the Chicago Convention must hold a license, which enables them to carry out the profession131.

The Liability Convention does not contemplate the problems of civil liability, but only the States’ liability. It is not enforceable to the damages caused to any passengers or crew of a spacecraft during the commercial activity of transport132.

Some authors propose to broaden the limited-liability regime, set by the Warsaw Convention, to space law, in order to overcome the problem of the lack of responsibility over space flight passengers133.

See DIEDERICKS VERSCHOOR, Quelques rèflexions sur les aspects juridiques des vols spatiaux, in Annuaire de Droit maritime et aerospatial, 1993, p. 382, and on legal status of astronauts, see DIEDERICKS VERSCHOOR,ROBINSON, GORBIEL, CHRISTOL, Hasting international and comparative law review, vol. VII, num. III, Spring 1984 For technical matters see ISU, Space Tourism- From Dream to Reality, Final Report of the Summer Session Program 2000 (Illkirch-Graffenstanden: ISU,2000) For the text of Memorandum see Journal of Space Law, L40, 1974; for the text of 1973 Space Law Agreement see Journal of Space Law 53-64 1974.

BOURELY, Legal regime of International Space Flight. Legal issues relating to flights of the Spacelab, in GOROVE (ed.) The Space Shuttle and the Law, 1980, p. 73-76; GOROVE, The Space Shuttle: some of its Features and legal implications, in GOROVE, Developments in Space Law, Dordrecht, Boston, London, 1991, p. 11 For some authors: JAKHU & BHATTACHARYA, Legal aspects of space tourism, in Proc. of the 45th Colloq., Houston 2002, p. 212 and SMITH & UWE HORL, Legal parameters of space tourism, fore coming in Proc. of the 46th Colloquium on the Law of Outer Space, 2003 Bremen, air law rules, which have determined the introduction of an International Organisation for Civil Aviation (ICAO) can be applied to space law, through the formation of an International Organisation for space flights (ISFO International Space Flight Organisation), proposed by US FAA-AST.

130 On distinction between “crew” and “passenger” and on the regulation of transporter’s responsibility over passengers, included in the contracts for space flights based on Warsaw Convention and its modifying protocols and on eventual European Community rules, see CATALANO SGROSSO, Legal status of the crew in the International Space Station, Proc. 42nd Colloquium, Amsterdam, 1999 p. 36-37.

131 Convention on Civil Aviation, Chicago, December 7th 1944 and Convention on Air Transportation, Warsaw, October 12th 1929, see the texts in BALLARINO BUSTI, Diritto aeronautico e spaziale, Milan 1988 see SPADA, Diritto della navigazione aerea spaziale, Milano 1999. p. 317 and foll.

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The 1929 Warsaw Convention134 sets the transporter’s responsibility over passengers. The legal status of the space tourist hasn’t been set yet, and neither have the relevant regulations concerning rights, duties and responsibility.

Regardless of this lack of the international law, the launching State of the space transportation vehicle retains jurisdiction and control, through the Commander, over the vehicle itself, during the flight toward the Space Station and the return flight.

The launching State of the transport vehicle, as long as it observes the rules established on the matter, as the rules of road for the I.S.S. or existing national provisions regulating contracts on the matter135, is free of choosing space tourists’ nationality and the person of the space tourist, considering their trustworthiness and their acceptance of the necessary training on ground.

Secondly in space law there is not a definition of the space tourist’s status and any rule regulate its attendant rights and duties and the problem of the responsibility and liability.

Outer Space Treaty call astronauts as “envoys of mankind” and the status of astronauts136 in mission is strictly connected to the State of nationality or of registration. This definition is not adapted to the space tourist, who does not represent his nationality State for scientific or research aims and does not carry out activity for national entities137.

The tourist status is surely a civil status, and also as “pseudastronauts” the space tourists is, at the actual moment of space law, submitted to the jurisdiction and control of the State of registration of the spacecraft, if he is on board. This State is also responsible of his conduct138.

Conclusions The Intergovernmental Agreement and the memoranda of Understanding have been established during a phase of the Station programme when Partner States were concentrating on the various aspects to be included within the development of the programme itself. The dispositions on the various stages of development are detailed and clear, whereas those directly linked to usage operations are more vague and therefore require a greater interpretation effort in the event of application to concrete events.

The will to establish a common legal regime on specific questions, as it also happened for the crew Code of conduct, seems to be the direction suggested by doctrine and practice of Partner States for future developments of the legal framework of co-operation for the Station. The agencies are required not only to regulate the conduct of the astronauts according to their own specific personnel policies, in accordance with the IGA and the MOU, but also according to the see LEE & TAKAYA, Space tourism and permanent human settlement: The legal and regulatory issues, in Proc. of the 43rd Colloquium on the Law of Outer Space, Rio De Janeiro 2000, p. 145; see also COLLINS & YONEMOTO, Legal and Regulatory issues for passenger space travel, in Proc. of the 41st Colloquium on the law of Outer space, Melbourne 1998.

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