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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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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.

Legal and ethical framework for astronauts in space sojourns 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

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