«Legal and ethical framework for astronauts in space sojourns André Farand Head of new initiatives ESA legal department Astronauts’ behaviour ...»
Legal and ethical framework for astronauts in space sojourns responsibilities of the Commander onboard the ISS, are obviously not relevant to the activities of the astronaut while on the ground, training for the flight or conducting activities on return from the ISS, although the Commander at these stages is still “directing the activities of the ISS Crew Members as a single integrated team to ensure the successful completion of the mission.” In addition, the requirements outlined in regulations pertaining to the space vehicle used by the crew member must also be observed. The ISS Code of Conduct applies to visiting crew members who will be staying on the ISS for only few days: the basic idea is that, while on board for a visit or for a full long-duration mission (expedition), all crew members are covered by the same legal prescriptions and are subject to the authority of the Commander.
18.104.22.168 Private gains
The ISS Code of Conduct stipulates that a crew member must refrain from any use of that status motivated by private gain. This requirement is not limited in time but it was understood that each Agency will have to deal with the conditions applicable to post employment activities of astronauts and determine what is acceptable in terms of compensation, for example in the form of bonuses or special remuneration for non-government agents. Making a distinction between personal effects and mementos that could be carried on board by the crew members, the Agencies agreed that constraints of manifest, safety and stowage allocation were already sufficient and that there was no need for the ISS Code of Conduct to spell out the discretion exercisable by an Agency in this regard.
Some of the officials involved in the drafting of the ISS Code of Conduct were adamant that “zero tolerance” must be enforced in or on the ISS for interpersonal or group harassment, as an express provision of the ISS Code of Conduct. The discussion showed the difficulty of harmonising the Partners’ respective legal concepts of harassment in a multi-national environment. In order to accommodate the multiplicity of views, it was decided to repeat in the general rules of conduct for the crew member outlined in Section II of the ISS Code of Conduct a sentence originally drafted for the next section pertaining to the Commander’s responsibilities.
This sentence calls for the need to “maintain a harmonious and cohesive relationship among the crew and assure an appropriate level of mutual confidence and respect.” In other words, the Agencies recognised that such language would make the application of sanctions possible in case where the MCOP determined that harassment had taken place.
22.214.171.124 Authority of the Commander over payloads
An issue discussed during the negotiations of the ISS Code of Conduct was whether or not the authority of the Commander should extend to payloads and be put in relation with the Commander’s responsibility to preserve the safety of the crew and the ISS. Also interesting in this context is to note that an explicit interpretative sentence has been added stating that nothing in the relevant section of the ISS Code of Conduct would affect the designation by the MCOP of an individual of any Partner State to be a Commander.145 This addition has the double advantage of being the first recognition in writing at such a high level of the rotation principle for designation of the Commander and the fact that no national of a non-Partner State can become Commander.
Legal and ethical framework for astronauts in space sojourns 126.96.36.199 Use of force onboard the ISS Despite long discussions on the matter, the negotiators did not include an explicit reference in the ISS Code of Conduct to the possibility for theCommander to make some use of force, thus contending that the reference to the right of the Commander to use “reasonable and necessary means” to discharge his or her responsibilities was sufficient to cover that possibility. It was agreed, however, that the minutes of the MCB meeting dedicated to the approval of the ISS Code of Conduct would contain an interpretative statement to the effect that reasonable and necessary means may include the use by the Commander of proportional physical force or restraint, where necessary to ensure the immediate safety of the ISS Crew Member or the ISS itself.
188.8.131.52 Proprietary and export-controlled data generated in or on the ISS
The Agencies examined the need to protect data generated by activities conducted in or on the ISS when such data could be considered to be “proprietary” or “export-controlled”. They agreed that it is up to each Cooperating Agency, or the data owner or provider to give instruction to their astronauts for the marking of data generated onboard the ISS, and consequently trigger the application of the protective measures provided for in Article 19.4 of the IGA. The Partners were, for all practical purposes, extending the marking procedure to data that were not necessarily to be exported or otherwise transferred to another Cooperating Agency. Such an extension of the original scope of the marking, justified by paragraph 8 of Article 19 calling for the establishment of guidelines pertaining to the security of information, was deemed necessary because of the presence onboard the ISS at any given time of crew members of more than one Partner.
184.108.40.206 Legal basis for implementation of the ISS Code of Conduct
The Agencies have been interested by the steps to be taken on a solid legal basis in order to persuade astronauts to abide by the rules outlined in the ISS Code of Conduct, albeit on a voluntary basis, as part of additional terms and conditions enabling them to pursue astronaut activities as employees of a Cooperating Agency. These steps are necessary to eliminate doubt as to the right of an Agency to require an astronaut to abide by these rules when assigned to an ISS expedition or possibly face the prescribed sanction in case of their violation.
The ISS Code of Conduct has been implemented in ESA, on behalf of the ISS European Partner States, through a directive of the ESA Director General addressed individually to the members of the European Astronaut Corps (EAC) in which they were invited to agree in writing to the terms and conditions of the ISS Code of Conduct, a process which is set out in the ESA Staff Regulations and the ESA Astronaut Policy, both sets of rules governing the employment of the astronauts.
In the United States, the ISS Code of Conduct has become part of the United States astronauts’ terms and conditions of employment through the adoption on 1 October 2000 of corresponding regulation under NASA’s existing legislation. In Japan, the ISS Code of Conduct has been incorporated into regulations consistent with the terms of the legislation that established the National Development Space Agency (NASDA) and Japanese astronauts, at the time employees of NASDA (which has been succeeded by JAXA), have been invited to sign up to the terms of the ISS Code of Conduct. Similarly in Russia, the cosmonauts were invited to sign up individually to the terms of the ISS Code of Conduct, once it became part of the regulations and policies applicable to the Russian Space Agency (now Roskosmos). In Canada, where astronauts are appointed by decision of the Cabinet, the ISS Code of Conduct became part of the terms and conditions of astronauts’ employment through adoption of an Order in Council by the Cabinet.
Legal and ethical framework for astronauts in space sojourns
3. Criminal jurisdiction The issue of criminal jurisdiction in the IGA is undoubtedly the most complex of all when examined from the angle of its potential to affect astronauts. It has to be remembered that in many countries, an astronaut enjoys national hero status and is often referred to as an envoy of mankind to outer space. Among the procedures applied in the selection of astronauts, whether professional astronauts or spaceflight participants, background checks make sure that candidates not only have no criminal record but show no propensity for criminal or otherwise deviant behaviour. The possibility of any crime being committed in or on the ISS is therefore extremely remote.
With the arrival of Russia in the partnership in the mid 1990’s, it became obvious that Article 22 of the IGA concluded by the four founding Partners in 1988 had to be amended to bring its provisions into line with the spirit of genuine partnership, and amendments gradually took shape throughout the negotiation process leading to the new IGA signed on 29 January 1998.
3.1 Basis for criminal prosecution: State of nationality exercises jurisdiction
Drawing on certain precedents in international law, the Partner States confirmed that the primary basis for exercising jurisdiction, which means initiating prosecution by a Partner State’s competent authorities, was the nationality of the alleged perpetrator. Thus, each Partner State has to make sure that it has taken appropriate measures in its national legal system to enable its competent authorities to initiate criminal prosecution against an astronaut of that State’s nationality, and also enable the competent courts to actually exercise jurisdiction over the case, when receiving evidence that the astronaut concerned may have committed a particular criminal act included in the various categories of criminal acts designated, by that State, to be subject to prosecution when committed onboard the ISS. In other words, the ISS Partner States have to consider measures not only to actually exercise their criminal jurisdiction but also to categorise the crimes which will be targeted for prosecution. In this connection, the United States have proclaimed that only the crimes established pursuant to United States Federal statutes are applicable onboard the ISS.
3.2 Accessory jurisdiction of the victim State
As an alternative, although a fairly remote one as we will see later, provisions were developed allowing any “affected” Partner State other than the one of nationality to exercise criminal jurisdiction over an alleged perpetrator in case of misconduct that had caused damage to its flight element or had been directed against the life or safety of a crew member who was a national of an affected Partner State. The actual exercise of criminal jurisdiction by an affected Partner State is conditional on its consulting with the State of nationality, the latter being under an obligation to agree to such consultation, and receiving concurrence from that State in such exercise of jurisdiction or on the latter’s failure to provide assurances that it will submit the case to its competent authorities for the purpose of prosecution146.
146 At the occasion of the discussion of the Canadian Bill pertaining to the ratification of the IGA by Canada, a senator argued that the IGA may have the effect of subjecting Canadian astronauts to the death penalty applied by the United States. This remark reflected the preoccupation of a number of ISS Partner States voiced during the negotiations. However, it has to be emphasised that the possibility for the United States to prosecute a non-United States national astronaut, or to prosecute that astronaut for a crime sanctioned by the death penalty, is so remote as to be practically non existent. First, the exercise of jurisdiction pursuant to Article 22.2 of the IGA by any Partner Legal and ethical framework for astronauts in space sojourns
3.3 Considerations related to the exercise of criminal jurisdiction
A number of issues related to the exercise of criminal jurisdiction as envisaged in the IGA were extensively discussed, without necessarily having been reflected in Article 22. One was the possibility of establishing an outright obligation on the State of landing to take appropriate means to ensure the immediate return of the alleged perpetrator to his or her State of nationality, pending any dealings between that State and any affected Partner State concerning their respective prosecutorial interests, these dealings possibly extending for a number of months.
Extradition was also discussed in the context of the redrafting of Article 22 of the IGA. It was decided that the IGA could, at the discretion of the Partner States concerned if applicable laws would allow it, serve as a basis for proceeding with the extradition of an alleged perpetrator from the territory of a Partner State to that of another if the Partner States concerned had not otherwise established an extradition agreement.
A further addition made to Article 22 was a general reference to the obligation for the Partner States to extend to each other legal assistance in cases covered by its provisions, subject to their respective national laws and regulations. The relevance of this clause is obvious because there will be a need, in some instance,s to bring back to earth from the ISS, and then transfer from the State of landing to the State exercising criminal jurisdiction pursuant to Article 22, some exhibits for submission as evidence in a criminal trial.
Finally, although the matters dealt with in the ISS Code of Conduct and the exercise of criminal jurisdiction should not normally overlap, clarification was added in Article 22 to stress that the Partners do not intend, through the application of Article 22, to limit the authorities and procedures for the maintenance of order and the conduct of crew activities established in the ISS Code of Conduct and, conversely, that the ISS Code of Conduct is not intended to limit the exercise of criminal jurisdiction pursuant to Article 22.