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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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The insurance situation is in itself a situation of asymmetric and incomplete information, as economists put it. The insurer cannot know to what extent the insured takes all necessary precautions and is of good faith, that is, if he is a “good” or a “bad” client. I won’t enter into the detail of economic analysis, but only highlight some of its conclusions. As the insurer does know that there are good and bad clients, but does not know which are which, he calculates the insurance premium according to the worse (worst?) clients. Since Akerlof, this effect has been known as “adverse selection”.

Indeed, if an insurance system is put in place, the least careful and least responsible are encouraged to enter the adventure. Furthermore, the high price of the insurance is a disincentive for the “good” clients, the least dangerous ones. It is a bit like if, in the French automotive insurance system, even drivers with no track record of any accident would pay a “malus” (the higher insurance premium that drivers that have recently had accidents should pay),. Good drivers may then be tempted not to insure themselves, or even not to drive at all, because the insurance premium makes the cost of driving dissuasive. Putting in place a bonus/malus system is only possible when the insurer can watch the behavior of clients over a significant period of time. Even if I am here imagining that space activity would grow, it is not to the point where the use of spaceships will be as common as that of cars – I don’t see that far yet. In short, the establishment of an insurance system in a growing market automatically results in an adverse selection situation, where dangerous actors are encouraged and more responsible actors dissuaded from taking part in the adventure.

Legal and ethical framework for astronauts in space sojourns

In consequence, while such a scenario may be positive at the individual level, it may also have undesirable collective consequences. First, to stay on the issue of damage, there is a certain waste of resources associated with the development of manned space activities and their insurance. To continue with the former comparison, if the bonus/malus system were suppressed, one would expect more car crashes. If it does not go further than material damage, it is no big deal, but still represents unnecessary waste.

But then of course, there is more to insurance than material damages. If actors - astronauts, travel agencies, spaceship makers, insurers, etc. - take more risk, more lives will likely be at stake as well.

When Guillaume just presented to you the indemnity system for injuries, you may have thought that a “reparation” does not actually repair that kind of loss. Even if I do not take adverse selection into account, it is in any case very likely that the increase in traffic increases the overall risk of accidents as well.

A third possible consequence of the growth of the risk associated with the development of manned space activity is the risk of a catastrophe. One can indeed insist on individual freedom as long as the participants in the space adventure only risk their money and their skin. But we also have to consider the risk of catastrophe. So far indeed, and despite the fears that have led to the adoption of the Liability Convention, space catastrophes and third party damages have not occurred. No space vehicle has fallen on a city, no nuclear explosion has taken place at high altitude, and the scenario of the TV-show Cosmos 1999, where the Moon left its orbit because of an incident on the lunar base, also has not come true. Nevertheless, it is characteristic of a catastrophe that its consequences are irreversible. Hence, I think it is necessary to maintain reflection on the appraisal of the risk associated with the development of space activities. We know that this risk also rises with the growth of insurance markets, basically because of reasons we mentioned earlier.

Hence I believe there is a social debate to be held about the acceptability of some risks. Usually indeed, it is the public power that decides what kind of risks individuals and societies are allowed to take. For instance, in France, people are easily allowed to walk in the street or to have a car, but not to own a tank or a nuclear plant, even if they are very rich. In the responses that we are receiving to our consultation that our Deputy Director-General, Mr Barbosa, mentioned this morning, some experts consider that the restriction of space tourism would constitute an unacceptable restriction to freedom of movement. However, it seems to me that this point deserves to be discussed in light of these considerations and a few others to which I will come back later. It is not self-evident that outer space is for everybody and should be accessible to all.

Star Wars vs. Star Trek More generally, allow me now to insist on how the status of space exploration and of the peaceful use of outer space are reflected in those issues of liability and insurance. Several facts show that the domain of space still has a very exceptional character that is not in spontaneous harmony with the development of private law, which I believe is nevertheless clearly relevant for an insurance system.

As I mentioned earlier, the non-liability agreement in the framework of the International Space Station clearly shows this extraterritoriality of manned space activity. Actors of this programme have a particular status, and it is obviously in the “higher interest” of the stakeholders to maintain this programme. The fact that the Americans, for example, only think to withdraw from this programme with a view to returning to the Moon and traveling to Mars clearly shows that, for whatever reason, presence in outer space is deemed necessary or strategic. Even though space

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activity is in fact largely private and governed by commercial activities, the presence of Man in space is still very much associated with a pioneering spirit.

Of course, the Return and Rescue Agreement and the Outer Space Treaty confirm this idea.

Indeed, not only are astronauts “envoys of mankind” in space, which may be legally vague but is, I believe, rather clear conceptually; but any space traveler is considered an astronaut. It is easy to understand how the pioneers of space conquest are “envoys of mankind”. The non-liability agreement of the ISS also testifies to this: astronauts are not up there only as private individuals.

In a sense, as my colleagues discussed, I believe that they do sacrifice some of their rights in order to engage in space conquest. Obviously, the issue gets more complicated from the moment tourists are sent into space. However, following international law, these tourists are also envoys of mankind all the same. Even if there may be arguments on the legal meaning of this term, it is rather clear that there is a conceptual opposition between the idea of a tourist and that of a herald of humankind.

Let us go back to the consideration of damages and liabilities. Precisely because all space travelers are astronauts in the legal sense, it follows from there, according to the Liability Convention, and as Guillaume de Dinechin just reminded us, that all damage caused by a space traveler, even a tourist, are to be covered by the launching State. Even if insurance covers the first hundred million dollars, the launching State is legally liable for the damage caused. There seems therefore to be no doubt that this international legal framework is not meant for “usual” use of outer space, but rather for “pioneer” use. With regard to space tourism, there is indeed a possible justification for its regulation and restriction because, for space tourism, the profit is private but the risk is public. Even if there is seemingly good prevention against the risks of high altitude flights today, it remains, on the one hand, that the practice of space tourism mechanically raises that risk and, on the other hand, that space tourism is not limited to high altitude flights like that of SpaceShipOne, that some people associate with airplane flights.

It seems to me that two ways of thinking are in competition here, and I propose to name one “Star Trek” logic and the other one “Star Wars” logic. The Star Trek TV show is contemporary

with the making of international space law, and I think the former reflects the spirit of the latter:

in Star Trek, you only have official crews charged with an exploration and civilization mission.

Captain Kirk is obviously in command of a public interest mission. But in the Star Wars movie, the terrestrial logic is extended to outer space: one has a spaceship just like on has a car, everybody circulates more or less freely in an outer space that is filled with smugglers, merchants and a “public force” that is not very reassuring. I think it should be emphasized that our management of outer space today, in spite of the importance of the commercial use of space, is founded on Star Trek and not on Star Wars logic.

Another point through which this opposition is manifest is, coming back to insurance issues, the question of moral hazard, as Rotschild, Stiglitz and Spence introduced into economics, and as witnessed on the actual market of space insurance. Indeed, here we are again talking about the situation where the insurer is not ensured that his client is of good faith, or is competent, or does what he has to. This situation, which poses a lot of problems in economic theory and in “regular” insurance markets does not seem so problematic in the business of Guillaume de Dinechin. In usual insurance situations, there are controls, inspections, deductibles and enquiries that address this issue. But, regarding the making of a launcher or the launch itself, the insurer has no way to control the safety of the launching that he is insuring other than by relying on the data the clients provide. Here, it seems that he counts, and rightly so, on the sense of duty, the moral responsibility and the reliability of the engineers that have designed the launcher and the launch, for this system has been perpetuated for decades now. Yet no one failed to notice that, in the

Legal and ethical framework for astronauts in space sojourns

world we live in, an industry that is so heavily based on the responsibility of the actors, on trust, is not unlike an extraterrestrial apparition. One may argue that, should an actor be discredited, he would have no future in this business whatsoever, and that, in consequence, there is an incentive to do one’s best in order to make safe launchers and launches. However, I believe that the sense of responsibility individual players (must?) show goes beyond incentives and calculation. In other words, here there would be, surpisingly enough, a situation where a given ethic would be socially efficient.

Conclusion

Coming to the end of these reflections, I wish to propose to you the following conclusions:

1. It seems that international space law and customs do not envisage the possibility of space tourism. The idea that tourists are envoys of mankind is hard to accept.

2. There are reasons to question the legitimacy of space tourism and to think about its regulation and restriction.

3. The development of an insurance market for manned space flights also requires the development of adequate information and control mechanisms: maybe rating agencies, regulation on mandatory insurance, controls and authorizations for space travelers, and probably an accurate estimate of risks.

4. The issue of global and social cost, including opportunity cost, of the development of such practices deserves to be raised.

5. How does the logic of liability and indemnity of insurance apply to celestial bodies? If the issue of private appropriation or exploitation of, say, lunar resources is raised, then the issue of liability will also be raised. Could it be that some day one may be liable to terrestrial owners for a moon crashing?

6. Could the liability convention be ratified by extra-terrestrials?

I thank you for your attention.

References

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Preamble This one-day conference focused on a number of issues including the following: Who is an astronaut? What classes of astronauts are there? How is an astronaut selected and what does he/she bring to the job? The Conference also addressed the adequacy or otherwise of the existing legal instruments governing space exploration, the code of conduct within a space ship, risks and responsibilities of space flights and the attendant liability and insurance coverage relating to space exploration. The Conference concluded on the ethics of astronauts in their space sojourns.

Who is an astronaut?

There are no legal definitions of astronauts in the United Nations legal instruments on space exploration, but references are made to them as “crew”, “representatives, people on space craft/ on the moon”, and “envoys of humankind.” Any one, including military personnel, sent into space, on the moon or that crosses the boundary between airspace and outer space can be regarded as an astronaut. The conference agreed that an ASTRONAUT is a person of all trades, confined to a limited area within the spacecraft during a space flight, and programmed by Earthbased personnel to work and to rest. He/she is an individual who can be trusted by all, and judged to be mature enough to appropriately manage his/her post-flight changed life style.

Classes of astronauts

The emerging concept of space tourism led the conference to examine the classes of astronauts now and in the future. The participants believed that space tourism will certainly grow, because

of the innate dreams of humankind. Today, there are three classes of astronauts:

Profession Astronauts – Employees of space agencies that are sent into space to (i) carry out space-related activities on behalf of their respective agencies.

This SUMMARY has been prepared by Dr. Adigun Ade ABIODUN, Chairman, United Nations Committee on the Peaceful Uses of Outer Space (aaabiodun@optonline.net )

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How is an astronaut selected?

Each space agency has its own guidelines for selecting its own astronauts. However, there are certain commonalities, beyond academic and professional excellence and physical fitness, that are

required of astronauts; these include but are not limited to:

(i) Competence, temperament and sense of commitment;

(ii) Communication skills that would enable each astronaut to build international relationships;

(iii) Ability of the astronaut to operate within a multi-lateral/multi-cultural environment that is becoming prevalent in today’s space missions;

(iv) The aptitude of the astronaut to accept the potential risks of paying the ultimate price of error(s) of judgement, and the duties and responsibilities associated with a

space flight, including:

a. Adherence to the code of conduct149 to be entered into with the launching state including respect for the authority of the Captain of the Spaceship, i.e. the Commander; (e.g. The European Astronaut Policy-The Guide for Europeans; The InterGovernmental Agreement with NASA and four other space agencies in respect of the ISS);

b. Acceptance to live and work with others in a “camping” and crammed environment; and

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Legal instruments for the activities of professional astronauts and others in outer space The conference focused on several aspects concerning the jurisdiction and control over astronauts, from such localities as the existing Space Station and transport shuttles including when astronauts carry many activities outside the space vehicle itself. The Conference was fully briefed on the rules governing the operation of the ISS including its disciplinary policy.

Participants agreed that each partner state would need to modify its national law to the extent that it would enable it to exercise some control and jurisdiction over its personnel and materiel on board a multi-national space vehicle.

The participants also deliberated on the following:

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The code of conduct that governs an establishment is a measure of the value of that establishment. It provides for (a) the protection of rights, and (b) the sanctioning of unacceptable behavior. Hence the signing of a Code of Conduct Agreement by Astronauts is mandatory prior to participating in a space flight.

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(iii) Space tourism will expand with the passage of time; accordingly, there is a need to provide a common legal regime between crew and passenger(s), including commercial astronauts and space tourists.

(iv) Given the nature of the sacrifices an astronaut has to make in the discharge of his/her duties, should he/she enjoy any specialised laws? Specifically, what law(s) should be in place to prevent the exploitation of the rights and images of an astronaut?

(v) What type of public law(s) should govern the limit of the personality of an “astronaut envoy?” The Conference noted that humankind is progressing from space exploration to space colonization. These developments subsequently led to a number of questions: “Are we (humans) ready to create an extra-terrestrial state? What would be the culture of those that will inhabit the extra-terrestrial state?” It was agreed that if humans are to maintain a presence or settle in outer space, then new rules/laws are needed to govern such a development. Why?

Because, the existing United Nations legal instruments governing space exploration and utilization and the agreement governing the participation in, as well as launch and operation of the ISS are inadequate for such a purpose. For example, what rights and duties are to be granted to a remote space colony?

Liability and insurance coverage relating to space exploration The conference participants received updates on the rules governing liability as the latter relates to space exploration, with specific emphasis on the United Nations Liability Convention and the Intergovernmental Agreement (IGA) on ISS.

Deliberations of the conference subsequently focused on:

Responsibilities of launching states – Member States are responsible for (i) damages caused by objects launched from their territories, whether by public or private actors;

(ii) Astronauts are free to take insurance coverage against possible injury or death;

(iii) Today, space tourists and commercial astronauts have to provide insurance coverage for their own risks, against liabilities towards others in the space mission and third party liability;

(iv) The existing United Nation Liability Convention and the IGA on ISS do not provide coverage for the space tourist; at present, this is a new challenging frontier for both space faring governments and the insurance industry.

Ethical Issues

The participants deliberated on the following as they relate to astronauts:

(i) The effects of (a) rocket launch on the astronaut, (b) being in space, (c) subsequent isolation and occasional sickness, and (d) of society’s expectations on the citizen astronaut on his/her touch down on planet Earth.

(ii) The entitlements that should accrue to an astronaut that has been subjected to scientific experimentation (e.g. space medicine) in space - a process justified by its social values.

Legal and ethical framework for astronauts in space sojourns

(iii) What does the human society owe astronauts given the psychological and human security sacrifices they have to make and the cultural differences they have to adjust to as they co-exist and co-habit in cramped space vehicles?

(iv) Specifically, is society exploiting the rights of the astronaut? And how can such an exploitation of the “astronaut image” be guarded against?

(v) Most astronauts attain celebrity status. What are the ethical limits of being a celebrity and of marketing such a persona?

Conclusion

While The Space Treaty clearly states that the outer space is “The heritage of all humankind”, its exploration and utilisation are to be undertaken under specific rules stipulated by the Articles of The Space Treaty and other related legal instruments. These legal instruments were based on the state of human knowledge at that time. Human views are changing daily, and subsequent developments since the enactment of these legal instruments dictate that they should be reviewed and enhanced. The challenges posed by space tourism, space commercialisation and possible space colonisation demand a revisit to and an urgent update of these legal instruments.

In order to enforce most legal international instruments, including those on outer space, each member state would need to commit itself to and design its space policy and law in conformity with the United Nations enacted Space Principles. Thereafter, the ethical debate will follow, naturally, at the global level.

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European Center for Space Law (ECSL) Mr. Gabriel Laferranderie, President Mr. Alberto Marchini, Administrator United Nations Educational, Scientific and Cultural Organization (UNESCO) Mr. Henk ten Have, Director, Division of Ethics of Science and technology Mr. Julien Tort, Programme specialist, Division of Ethics of Science and Technology Mrs. Melissa Anderson, Assistant European Space Agency (ESA) Mr. André Farand, Head of new initiatives, Legal department Institut du Droit de l’Espace et des Télécommunications (IDEST) Mr. Philippe Achilleas, Directeur

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