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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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It is important to note that the basic rules for prosecuting ISS astronauts are valid only for nationals of ISS Partner States. In other words, the arrangement limiting to the State of nationality the possibility to prosecute an alleged perpetrator in case of a crime being committed onboard the ISS is derogative of the basic rule applicable pursuant to the Outer Space Treaty of 1967, and these arrangements can only apply inside the existing partnership. This entails that, for astronauts who are nationals of States other than those having signed the IGA, prosecution in the exercise criminal jurisdiction will eventually be done by the State(s) exercising their jurisdiction over the flight element, or the flight elements, in which the crime would have allegedly taken place, consistent with the prescriptions of the above Treaty. This differentiated treatment of astronauts for the purpose of applying criminal jurisdiction onboard the ISS makes the matter more complex for the partnership. One can envisage that, whenever flight rules are developed by the interested ISS Partners for providing instructions in the manner of handling a situation in State over the astronaut of a nationality other than the one of that State can be envisaged only if the State of nationality had refused to consider whether there is sufficient evidence to lay charges. It is inconceivable that government officials would not look into the possibility of laying charges if evidence shows that a serious crime had been committed. Second, since only crimes under United States Federal statutes are applicable onboard the ISS, a very limited number of crimes entailing the death penalty can be invoked, and it would be impossible to commit such crimes onboard the ISS (such as murdering the President of the United States with a fire arm). To put the foregoing in the appropriate perspective, it has to be recalled that almost all the ISS Partners astronauts are training in the United States for long periods of time, thus they accept to be subject to all applicable United States laws and regulations during these periods.

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which a crime would have been committed onboard the ISS, something which has not yet been done, a distinction will have to be drawn in the treatment of astronauts of non-Partner States.

4. Conclusions It looks very plausible that, for the foreseeable future, the initiative of the consolidation or further development of rules governing the behaviour of astronauts will remain with the five ISS Partners. One of the challenges for the corresponding States will be to make necessary adaptations to their internal legal systems to be able to exercise, to the fullest extent possible, their jurisdiction and control over not only the elements of the space systems they respectively provide but also the personnel onboard their space vehicles and facilities.

With the initiation over the coming years of missions devoted to space exploration, and depending on the involvement of players from the private sector in these missions, wide-ranging issues may need to be addressed in a regulatory framework, such as those related to the different aspects of the exercise of a given State’s jurisdiction and control over space vehicles, or facilities circulating in outer space or built on a celestial body, which are owned and operated exclusively by private entities from the State concerned.

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Let me open with a quotation from a folklore collection chronicling Native American reactions to the Apollo space program: “pity the Indians and the buffalo of Outer Space.”147 I make this gesture not in the belief that alien life forms are the most likely dilemma to confront astronauts in the near future, but rather because for people trained in anthropology and history, terms such as “conquest” have a complicated and less than cheery ring to them, recalling a long and bloody march of domination as much as a bright new dawn for all earth-dwellers. This is not to say that sins of the past should simply dictate attitudes about the future. But it is to suggest that when facing forward we should not assume that the past lies simply behind, or that we can remain blithely unaffected by what it has bequeathed to the present, at least in ethical terms. Since the occasion of this meeting is to discuss a legal and ethical framework for astronauts, it seems especially appropriate to recall even at the outset that treaties can broken and ignored as well as made, and thus in and of themselves offer no guarantee. As an anthropologist, my modest contribution to such an endeavor can only be to emphasize the significance of what people do as well as what they say, and to stress that that the population of our planet has a plural history, and maintains a varied perspective on the future.

My mandate, I take it, is to discuss ethical issues related to criminal conduct in space, most specifically in the “International Space Station Era.” Before attempting that task, however, I will first quickly note two general points about ethics, and the particular problems of definition we might encounter with regard to outer space. The first point is simply that the term “ethics” describes a much broader field than formal law. For while moral argument may be a formally rational endeavor — whether Kantian imperatives or utilitarian calculations — moral sentiment is a far more complex product of history extending well beyond individual psychology. Inchoate senses of right and wrong, feelings about justice and injustice, sensibilities about the “right thing to do” all vary not just between individual humans, but also between human groups, based on the inheritance of collective experience and displayed in both pride and prejudice. Actual practice involves affect alongside intellect, and affect and attitudes are difficult to legislate. The second M. Jane Young, “ “Pity the Indians of Outer Space”: Native American Views of the Space Program,” Western Folklore, 46 (October, 1987), 271.

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point is that a person in outer space represents not simply an individual, or even a human group, but potentially all humans. For moving beyond the planet positions any individual, for better or worse, as a representative of that planet, whose behavior reflects on all who inhabit it. In ethical terms this may at times prove significant, since actions occurring at the edge of law may receive far more attention, and have greater consequences than they might in more terrestrial contexts.

Both these points potentially pertain to issues of criminal conduct in space. Breaches of social convention extend far more widely than criminal codes. For a behavior to be considered a crime, it must both fit a general definition of possible infraction sufficiently to incur an official charge, and then have that charge upheld in the particular instance through a legal proceeding. This elementary observation recalls that interpretation and the potential for disagreement occurs long before a courtroom. The fact that space will in have a rather minimal social order for the foreseeable future means that the burden of determining what infractions do or don’t constitute a crime, and which ones might be significant enough to report to any governing bodies may fall primarily on a small group of individuals living and working in close proximity to each other. In this sense it will require ethical judgment well before any legal judgment. On the one hand there are potential effects on the cohesiveness and morale of the crew to consider in negotiating differences about appropriate behaviors. On the other hand there are also potential effects on the public image of the program if infractions are either overemphasized or overlooked. While we are accustomed to think about “crime” in terms of its most dramatic forms —murder, say, or Hitchcock in space — we should not forget the much larger range of infractions that sometimes at the border between crime and bad behavior, from adultery to littering. We should also not forget infractions involving private and communal forms of property, and the question of who does or doesn’t have rights of use or of laying claim to any particular object or territory. Of particular importance here, I believe, will be conflicting understandings of the appropriate role of commercial markets and states regulations in defining ownership beyond the atmosphere, and the legitimacy of potential profit.

Alongside criminal conduct we need to consider procedures enacted in the name of justice. As well as general questions of jurisdiction there are also questions of how to treat a suspect before trial, and what, if any, punishment to administer while in space. Two factors of potential significance here are that any individual astronaut would already be effectively confined in a general sense — escape from a space station would require unprecedented ingenuity — and that the individual might regularly perform duties central to the ordinary performance of the mission.

Moreover, procedure can also hold symbolic significance well beyond the particular instance, increasing possible political pressure (both large and small) on ethical judgment. To what extent will both policies and their administration be consistent, and to what extent context dependent.

In realistic terms I suspect that relatively few problems will arise with small teams of professional astronauts working for national space programs. Carefully selected, trained and monitored, these individuals may come from different cultural backgrounds, but share a common professional discipline in excess of motley explorers in the past. The era ahead of us, however, may well include increasing numbers of private commercial ventures in outer space as well as space tourists, neither of which may be as immediately amenable to international directives. The first recognized space criminal could in fact prove to be an unethical corporation that violates commercial law in search of greater profit — Enron on an asteroid, say — or a particularly rude and belligerent space tourist who goes one step too far, an quite imaginable scenario if the selection criterion for space flight shrinks simply to an ability to pay for passage.

To reiterate, our collective ethics include a plural inheritance of different sensibilities of right and wrong. But what is at stake here is a general attitude towards space, and the degree to which

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future human activity in it will mirror the unhappy legacy of early periods of human expansion, or actually define a new and more hopeful era. In other words, I hope it will not be necessary someday to pity the Indians and buffalo of outer space.

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Among the various topics regarding the legal and ethical framework surrounding astronauts sojourns in space, there is a quite unexpected one, that is the issue of liabilities.

Until recently, to send a man in space was the exclusive deed of states or governmental agencies.

The legal environment ruling liability in space has essentially been crafted to suit this situation.

With private ventures becoming interested in and even capable of sending tourists, the landscape of liabilities and insurance is perhaps about to change significantly.

Liability in space, at international level, is ruled by two instruments:

- The 1972 convention on liability, and

- The intergovernmental agreement relating to the use of the international space station.

The 1972 Liability Convention essentially establishes the following:

It defines “Launching State” as any state which launches or procures the launching of a space object; or from whose territory or facility a space object is launched, It makes the Launching State liable to pay compensation for damage caused by its space objects, The liability is i) absolute for any damage on earth (i.e. regardless of any fault) and ii) tort for damages caused to third parties in space (i.e. the Launching State is liable only if the damage is due to its fault or the fault of persons for whom it is responsible).

In respect of the astronauts themselves, the Liability Convention applies and is complemented by the International Space Station Intergovernmental Agreement (more briefly called the ISS IGA) which establishes the principle of cross waiver of liability.

By this Agreement all “Partner States” and their “Related Entities” (being another participant in the same mission at whatever level, be it an astronaut on board or a Company having vested

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interest in the mission e.g. hardware, experiments…) agree to a Cross Waiver of Liability pursuant to which each Partner State waives all claims based on damage arising out of Protected Space Operations as the term is defined in said IGA against any of the entities or persons.

As a result, the liability of one participant in a space mission towards other parties depends on whether the other party is a “Related Entity” or merely a Third Party.

Among Related Entities, the cross waiver of liability entails that no indemnification is claimable for any damage suffered arising out of acts, or omissions of another Related Entity.

Acknowledging that space operations are risky, all participants to a space mission accept a “every man for himself” principle.

In respect of damage to Third Parties, Third Parties not involved in the space mission can be of

two kinds:

- Parties involved in a space mission other than to the International Space Station, towards which the liability borne by a participant in a space mission is a fault liability, i.e. the entity responsible for the damage is liable for compensation to the party suffering the damage.

- Or just the man in the street, towards which the liability borne by a participant in a space mission is absolute.

The current liability allocation arising out of the 1972 Liability Convention and the ISS IGA can be summarized as per the chart in figure 1.

Figure 1

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As a practical result, participants in an ISS mission don’t have to take insurance for damage they cause to others. They are free to take insurance as they like for their own damage, or to cover their own astronauts.

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