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«Legal and ethical framework for astronauts in space sojourns André Farand Head of new initiatives ESA legal department Astronauts’ behaviour ...»

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Legal and ethical framework for astronauts in space sojourns

André Farand

Head of new initiatives

ESA legal department

Astronauts’ behaviour onboard the International

Space Station: regulatory framework

1. Background

Astronauts’ behaviour onboard the International Space Station (ISS) is covered by two different

sets of rules. First, the general conduct of an astronaut is covered by the provisions of a

dedicated Code of Conduct140, which is an autonomous and unique piece of programme documentation developed by the ISS Cooperating Agencies in the year 2000, and given legal standing in the various ISS Partner States’ legal systems through the different means explained below. The ISS Code of Conduct is applicable to an astronaut from the time of the astronaut’s designation as an ISS expedition crew member or as a visiting crew member to the ISS by the competent astronaut management body of the partnership. Second, the criminal conduct of an astronaut onboard the ISS, something which is clearly distinct from the type of behaviour covered in the ISS Code of Conduct, will subject the alleged perpetrator of the criminal act to the jurisdictional rules of prosecution spelled out in Article 22 of the ISS Intergovernmental Agreement.

There should be a genuine interest in better understanding the functioning of the rules applicable to the behaviour of astronauts onboard the ISS since the legal framework established for regulating the various activities pursued through ISS cooperation will apply in some manner to all space activities involving astronauts for the foreseeable future141. Obviously, they will apply as 140 The Code of Conduct for the International Space Station Crew (the ISS Code of Conduct) was approved on 15 September 2000 by the Multilateral Coordination Board, the highest level coordination body established through the ISS Agreements (the Intergovernmental Agreement of 29 January 1998 and the 4 Memorandums of Understanding – MOUs – between NASA and each of the four other ISS Cooperating Agencies, i.e. the Russian Space Agency, the European Space Agency, the Canadian Space Agency and the Government of Japan acting on behalf of various Japanese government agencies). The ISS Code of Conduct (US Federal Register: December 21, 2000, Volume 65,

Number 246 of Rules and Regulations, pages 80302-80306) can be consulted on Internet at:

http://www.spaceref.com/news/viewpr.html?pid=3418.

141 In the foreseeable future, the manned spaceflight missions to be carried out could be categorised as follows: (a) those related to exploitation, i.e. utilisation and operation, of the ISS by the Partner States’ governments, which will pursue they public service mission in that field; (b) those related to the start up of a number of initiatives in the frame of space exploration programmes and strategies currently being developed by a number of space-faring Legal and ethical framework for astronauts in space sojourns they were developed for forthcoming ISS activities, and also they will likely be borrowed, or serve as a point of departure, for developing new sets of rules to cover forthcoming manned space activities.

One of the most difficult challenges at this stage for officials involved in the development of rules affecting the astronauts’ behaviour is to ensure that the rules developed by governments, in instruments of public international law, are correctly incorporated in the various national legal systems, through the adoption of legislation or otherwise, so as to enable the courts of those States to render decisions implementing the rules, decisions that could provide for the prescription of sanctions or damages when appropriate.

Following the announcement of the US space exploration initiative by US President Bush on 14 January 2004, US officials have emphasised the role that the private sector is called to play in the forthcoming space exploration activities, and thus the need to factor into the preparation of those activities the appropriate means for safeguarding the rights of the players from the private sector, in particular for the protection of their property rights. This shows the importance of developing national legislation, possibly incorporating the gist of the commitments made among the governments carrying on cooperation activities, which could provide incentive for the private sector to get involved in space exploration.

2. The ISS Code of conduct2.1. Point of departure

The basic idea of developing the ISS Code of Conduct governing the behaviour of astronauts in the frame of ISS cooperation comes from the necessity for space agencies to obtain from these individuals a consent to abide by certain basic rules, or subject them to these rules through other legally sound means, concerning the respect of hierarchy and commands, the avoidance of conflict of interest and the limitations concerning personal equipment.

The closest approximation to this ISS Code of Conduct until then was a “Standard of Conduct Agreement” which a mission specialist sent by a foreign organisation such as ESA for training in the United States was required to sign before being assigned to a specific US Space Shuttle flight.

More precisely, the main purpose of this type of document is to obtain the person’s consent to be subject to the authority, orders and direction of the Commander, to limit the disclosure of protected data and to refrain from using his or her position, or information obtained in the course of the mission, for personal gain.





2.2 Objectives for developing a Code of Conduct

Codes of conduct are generally used by universities, or other private or public organisations such as large international business entities, to promote and advertise common broad values, and to impose restrictions on the use of practices judged unacceptable. One of the consequences of the adoption of a code of conduct is to enhance the credibility of the corresponding organisation in the market, or in society at large. It could also have the benefit of providing some means of defence for the organisation against claims that could be submitted by victims of unfair practices or deviant conduct, for example by victims of harassment in universities.

nations, and (c) those generated by the development of space tourism activities by the private sector, possibly with some form of public sector’s involvement.

Legal and ethical framework for astronauts in space sojourns What is particularly true is the code of conduct provides for a course of action, leading possibly to the application of some form of sanction on the individuals having disregarded the rules spelled out in the code, which is viewed as just and equitable. Interesting enough is the fact that, through the adoption of a code of conduct, organisations have shown a keen interest to develop under their own authority a framework governing some aspects of the behaviour of their employees, suppliers or other users or stakeholders, also keeping within their control the application of the prescribed remedies and sanctions.

–  –  –

The ISS Partners have laid down in the IGA and MOUs142 how the ISS Code of Conduct should be drafted, an exercise guided by an outline of its content in the MOUs, then approved, and finally accepted before an Agency is authorised to provide Space Station crew members143.

2.3.1 Scope of the behaviour affected by the Code of Conduct and other rules When reading the ISS Code of Conduct, one may be surprised by the number and scope of the various sets of regulations that will apply specifically to the ISS crew, bearing in mind that a number of provisions of the IGA and MOUs are also directly relevant to astronaut activities and, as such, they are affecting the interests of astronauts.

In addition to the ISS Code of Conduct itself and the related disciplinary policy, a crew member is subject to the provisions of the ISS Flight Rules and the other requirements imposed by the Cooperating Agency providing him or her, those related to the Earth to Orbit Vehicle (ETOV) being used for the mission, those defined by the various ISS cooperation bodies listed in Article 11 of the MOUs dealing with various aspects of astronaut matters and, finally, to the requirements contained in the rules of the various institutions hosting the training. It is therefore normal that the ISS Code of Conduct specifies that the ISS crew member has a right to know about these requirements and that he or she will be educated as to the applicable rules by the Cooperating Agency providing him or her, through the crew training curriculum and normal programme operations.

2.3.2 The ISS disciplinary policy Attached to the ISS Code of Conduct is a broadly worded disciplinary policy144, which is to be further expanded through detailed documentation being established on the various steps it Article 11.6 of the MOUs provide that: “The Space Station Code of Conduct will, inter alia: establish a clear chain of command on-orbit; clear relationship between ground and on-orbit management; and management hierarchy; set forth standards for work and activities in space, and, as appropriate, on the ground; establish responsibilities with respect to elements and equipment; set forth disciplinary regulations; establish physical and information security guidelines; and provide the Space Station Commander appropriate authority and responsibility, on behalf of all the partners, to enforce safety procedures and physical and information security procedures and crew rescue procedures for the Space Station.” 143 On 15 September 2000 in Washington DC, the Multilateral Control Board (MCB), the highest-level cooperative body established pursuant to the MOUs, approved the ISS Code of Conduct for International Space Station Crew.

That document contains a set of standards agreed by all partners to govern the conduct of ISS crew members, starting with the first expedition crew launched from Baikonur in Kazakhstan on 31 October 2000. These standards had been developed over the previous six months by teams of cooperating agency officials, working in close consultation with the competent authorities of the ISS Partner States.

Legal and ethical framework for astronauts in space sojourns outlines. The policy covers matters on which the Multilateral Crew Operations Panel (MCOP) will exercise a central role, such as the procedure required for submitting a statement asserting violation of a prescription of the ISS Code of Conduct by a crew member, examining and making determination on this statement, the manner in which a decision may be revised and the type of disciplinary measures that could be imposed depending whether the violation occurred on earth or during the flight.

The interest of this disciplinary policy lies in the implicit recognition by the Cooperating Agencies that their astronauts’ behaviour may be subject to a process which is administered not only on the basis of their own personnel policy but also of rules developed by the ISS partnership. This two-step approach has the advantage of enabling the cooperating Agency concerned to apply, though the process exercised pursuant to its own rules of personnel, the relevant provisions of national laws, regulations and policies.

This leads to a differentiated treatment of astronauts depending on which astronaut corps they belong, or are associated with in the case of spaceflight participants. This is understandable when we consider that matters such as what constitutes unacceptable personal gain or harassment, which may open up disciplinary measures in the ISS Code of Conduct, are defined and sanctioned in different manners depending of the jurisdiction. However, the possibility for the partners to collectively examine cases of infringement inject a certain degree of uniformity in the treatment of astronauts’ behaviour.

The disciplinary policy provides that the MCOP is responsible for the development of the documentation establishing the details of the said disciplinary policy, a task which it has not carried out so far. It would give much more credibility to the ISS Code of Conduct if a clear procedure had been established for the purpose of giving the representatives of the ISS Partners the basis for being seized with, and giving full consideration to, a particular case of infringement of the ISS Code of Conduct’s provisions by an astronaut, including for the imposition of sanctions. In other words, although the ISS Code of Conduct provides for a multilateral treatment of disciplinary matters over and above the measures to be taken by the individual cooperating Agency, there is no clear procedure at this stage for doing so.

Since the sanctions listed out in the existing disciplinary policy comprise a verbal warning, a written reprimand and a removal from the crew, one may conclude that such sanctions do not constitute an efficient enough deterrent that would ensure that a spaceflight participants, carrying out a one-off flight onboard the ISS, would not infringe the provisions of the ISS Code of Conduct. The MCOP may want to consider the opportunity of introducing financial sanctions, to be agreed to contractually with spaceflight participants, that could be assimilated to fines that could be levied on spaceflight participants infringing provisions of the ISS Code of Conduct.

2.3.3 Noteworthy issues covered by the ISS Code of Conduct 2.3.3.1 Timeline of the application of the ISS Code of Conduct The provisions of the ISS Code of Conduct apply to an ISS crew member from the time he or she is assigned to a specific ISS expedition or a flight opportunity, until completion of post-flight activities. Some provisions of the ISS Code of Conduct, for example those outlining the The disciplinary policy for ISS crew, appended to the ISS Code of Conduct, has been developed by the Multilateral Crew Operations Panel (MCOP), a cooperation body established through Article 11 of the MOUs, and approved by the MCB, together with the ISS Code of Conduct, on 15 September 2000.



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