by: André Farand[i], Idest
André Farand (Idest) explains the regulatory framework applicable to the ISS on the occasion of the first private manned space flight operated by Space X
The launch aboard a SpaceX Crew Dragon spacecraft on the company’s Falcon 9 rocket[ii] of a crew composed of NASA astronauts Robert Behnken and Douglas Hurley on 30 May 2020 from the Kennedy Space Centre in Florida, is an important milestone marking the United States’ return to space with a U.S.-developed vehicle. The NASA Demo-2 flight destined to the International Space Station (ISS) is the first crewed mission for the agency’s Commercial Crew Programme[iii].
The Demo-2 mission has also significant repercussions for the ISS partnership as a whole and its occurrence provides an opportunity to review the legal framework governing the astronauts’ status and activities, specifically in the framework of the ISS international cooperation among the five Partners concerned: the United States, the Russian Federation, the European Partner regrouping eleven member States of the European Space Agency, Japan and Canada. It can be envisaged that, until the end of the present decade[iv], the ISS will remain the destination of choice for human expedition to low-Earth orbit, whether carried out by private or public sector entities or individuals, and on an institutional or commercial basis. [v] In that sense, the legal regime governing astronaut activities in the framework of ISS cooperation outlined below will have a wide application in the coming years while the inherent concepts will continue to be tested by new mission scenarios.
When addressing ISS cooperation, a distinction has to be made between the different layers of legal instruments applicable to astronaut activities as further detailed below which are:
(a) first the (top level) international agreements among the ISS Partner States, and also among the Partners Cooperating Agencies (the latter referred to below as “partner agencies”, being NASA, the Russian Space Agency Roscosmos, the European Space Agency (ESA), the Government of Japan representing a number of national agencies, and the Canadian Space Agency (CSA)),
(b) then regulations and programme-related documentation developed over the years, and approved, by the partner agencies, and
(c) finally the rules, procedures and policies adopted by each partner agency under its own applicable framework.
I. ISS agreements – among Partner States and among partner agencies
What is often referred to as the ISS Agreements are both the ISS Intergovernmental Agreement (IGA)[vi], and the ISS Memorandum of Understanding between NASA and ESA[vii] (NASA/ESA MOU), signed on 29 January 1998 in Washington D.C. Obviously, the different commitments entered into by the States signatories to the IGA, or by NASA and ESA as parties to the above MOU, concerning astronauts’ status or activities are not generating rights and obligations directly for the astronauts. Rather, it is up to the Partner States and their respective partner cooperating agencies to take necessary steps to put their astronauts in a position to act in a manner consistent with the corresponding State-level and agency-level commitments.
1. The ISS Intergovernmental Agreement (IGA)
The IGA was signed by the governments’ representatives of fifteen States, designated as five different ISS Partners. This designation can be explained by the fact that the European Partner is composed of eleven States, out of the twenty-two member States of the European Space Agency, being signatories of the IGA, while each of the other signatory States (the United States, the Russian Federation, Japan and Canada) is also designated as a single Partner. Accordingly, the distinction made between Partner and Partner States in several provisions of the IGA aims primarily as indicating how the eleven European States signatories of the IGA will abide by their respective rights and obligations under the ISS Agreements. This will be done by them either directly as a State, for example when they may be called to exercise jurisdiction on an alleged criminal conduct onboard the ISS of one of their nationals under Article 22 of the IGA, or more generally through their participation in, and close monitoring of, the relevant optional programmes established by ESA for this purpose.
The ISS Intergovernmental Agreement (IGA) signed on 29 January 1998, replaced the first IGA signed on 30 September 1988 and formalised the arrival in the ISS partnership of the Russian Federation, and within the European Partner of Switzerland and Sweden. It confirms that: “Each Partner has the right to provide qualified personnel to serve on an equitable basis as Space Station crew members… in accordance with procedures provided in the MOUs and implementing arrangements”.[viii] It was also stipulated at the time of the signature of the IGA that a Code of Conduct for the Space Station crew will be developed and approved by the Partners, thus enabling each of the Partners to provide crew members.[ix]
Provisions of the IGA, other than those contained in its Article 11, have a direct bearing on ISS-related astronauts’ activities, including: (a) article 5.2 of the IGA which stipulates that “each Partner shall retain jurisdiction and control …over personnel in or on the Space Station who are its nationals”; (b) article 16 of the IGA which establishes a cross-waiver of liability among the Partners, the partner agencies and their related entities pursuant to which the latter parties waive all claims against each other based on damage arising out of the broadly-defined term of “Protected Space Operations”, and (c) article 22 of the IGA which, among other things, specifies the basis on which a Partner State may prosecute the alleged perpetrator of a criminal conduct, and thus exercise its criminal jurisdiction over the individual concerned.
The cross-waiver of liability is particularly relevant when considering that astronauts are in close proximity with each other during the different phases of ISS operations, including training, launch and post-flight activities, and are therefore at risk of causing, or be the victim of, a damage within the definition provided in the IGA. However, the personal recourses of a natural person, and thus of an astronaut, and of his or her estate, survivors of entities subrogated in his or her rights like an insurance company, are not waived through article 16 of the IGA[x]. Thus, there is still a possibility in that case of submitting a claim for the purpose of seeking reparation for a damage (death, injury or other impairment of health) he or she would have sustained.
The two NASA astronauts assigned to the NASA Demo 2 flight, Robert Behnken and Douglas Hurley, are NASA astronauts, being thus part of the professional astronaut corps of the U.S. Cooperating Agency and having a long experience of human spaceflight as U.S. space shuttle flights veterans. This is relevant in the sense that one could have wondered whether, with their assignment several years ago to the NASA Commercial Crew Program, they would have modified their status or position as NASA professional astronauts. This is clearly not the case and, in addition, with their invaluable experience gained through years of interactions and training with SpaceX agents under the supervision of NASA officials, they have added a new dimension to their knowledge and experience as professional astronauts primarily dedicated to the development and operation of a commercial, private-sector developed, space transportation vehicle.
2. The ISS Memorandum of Understanding (MOU)
The ISS Memorandum of Understanding (MOU) between NASA and ESA also contains several provisions directly relevant for astronaut activities. Mirroring the provisions of Article 11 of the IGA, Article 11 of the MOU develops extensively the process pursuant to which the Space Station Crew will be assigned for each ISS mission. This assignment – which shall reflect over time each partner agency’s right to provide ISS expedition crew members – is under the responsibility of the Multilateral Crew Operations Panel (MCOP), the cooperation body established pursuant to Article 11.3 of the MOU as “the primary forum for the top-level coordination and resolution of Space Station crew matters which affect all partners[xi]”.
A Space Station crew for a given mission is composed: (i) primarily of expedition crew members, being the astronauts assigned to a (approximately) six-month duration sojourn onboard the ISS consistent with the rights acquired to each partner agency through its participation in ISS cooperation, (ii) professional astronauts of a partner agency carrying out a flight opportunity, generally of a short duration (six to eleven days), often for a well-defined objective[xii] which may include the execution of a dedicated experiment programme, and () spaceflight participants brought onboard the ISS based on the above-mentioned Principles for ISS Crewmembers[xiii].
II. Regulations and programme documentation approved by partner agencies
1. Code of Conduct for the International Space Station Crew
The ISS Partners have laid down in the IGA, and the partner agencies in the MOUs[xiv], how the Code of Conduct[xv]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 members[xvi]. The Code of Conduct is, from a legal standpoint, the most important instrument after the above-mentioned ISS Agreements not only because the Code originates from obligations originally spelled out in the IGA and MOUs, but also because of the efforts made by the five Partners and partner agencies, as detailed below, to give standing in their respective legal systems to the astronauts’ rights and obligations outlined in the Code. This is because the Partners and partner agencies considered that they should to be able to exercise appropriate recourses in case an astronaut would fail to abide by his or her obligations under the Code.
The prescriptions of the Code[xvii] 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 that Code, for example those outlining the responsibilities of the Commander onboard the ISS, may not be fully relevant to the activities the astronaut carries out while on the ground, in training for the flight or when conducting activities following the return from the ISS, although the Commander at these different 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 Code 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 ISS Commander.
In the United States, the Code has become part of the US astronauts’ terms and conditions of employment through the adoption on 1 October 2000 of corresponding regulation under NASA’s existing legislation. The Code 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 Code, a process which is consistent with the ESA Staff Regulations and the ESA Astronaut Policy, both sets of rules governing the employment of the European astronauts. In Japan, the Code 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 Code. Similarly in Russia, the cosmonauts were invited to sign up individually to the terms of the Code, once it became part of the regulations and policies applicable to the Russian Space Agency Roskosmos. In Canada, where astronauts are appointed by decision of the Cabinet, the Code became part of the terms and conditions of astronauts’ employment through adoption of an Order in Council by the Cabinet.
2. Principles for ISS Crewmembers
In order to be proposed and accepted for a flight opportunity onboard the ISS, an individual shall respond to several criteria and receive an appropriate level of training, as established either pursuant to applicable rules and directives applicable to the members of a professional corps of astronauts of a given ISS partner agency or, when not being a professional astronaut, as a spaceflight participant. The criteria, including the prescribed level of training, for a spaceflight participant have been established pursuant to the relevant provisions of the programme-level document agreed by the partner agencies in November 2001 and entitled “Principles Regarding Processes and Criteria for Section, Assignment, Training and Certification of ISS (Expedition and Visiting) Crewmembers”[xviii] (Principles for ISS Crewmembers). The partner agencies have qualified the latter Principles of “ISS program document”, thus indicating that they have no formal legal standing and constitute rather a gentlemen agreement among partner agencies for them to act in the manner prescribed.
3. Notification of non-Partner participation or equipment ownership
The IGA provides in its Article 9.3(a) that: “any proposed use of a user element by a non-Partner or private entity under the jurisdiction and a non-Partner shall require the prior notification to and timely consensus among all Partners through their Cooperating Agencies; …”. Procedure for the content of the notification from the sponsoring partner agency to the four other agencies, and the mechanism for confirming the latter’s concurrence or consensus with the proposal for a non-Partner use or equipment ownership, have been agreed among the partner agencies in 2001, also as a “ISS program document”[xix]. Each partner agency has subsequently put in place a dedicated internal process with a view to complying with the prescriptions of the corresponding document[xx].
The activities of the two astronauts carrying out the NASA Demo-2 flight, the first flight destined to the ISS in the framework of the NASA Commercial Crew Programme, are governed by an exhaustive legal framework. This framework is bound to apply whenever there is a link to be made between the ISS and a particular space mission, whether the latter involves professional astronauts or spaceflight participants. For the foreseeable future, possibly until the end of the present decade, the vast majority of space missions to be carried out or sponsored by the partner agencies, including those carried out by a private entity under the jurisdiction of a given ISS Partner State(s), will be related to a certain extent to activities onboard the ISS, and thus the above legal framework will continue to fully apply to astronaut activities.
However, when a future space mission of any of the ISS Partners will be heading towards a destination other than the ISS, such as free-flying independent commercial missions, it will be up to the Partner State(s) exercising jurisdiction over the personnel onboard the space facilities in question to develop the necessary legal framework governing astronaut activities and make sure that the rules will be made applicable through appropriate steps being taken at national law level. No doubt that the latter framework will borrow, with necessary adaptation, several rules and concepts already applicable in the current ISS legal framework.
[i] From 1991 to 2019, the author was Senior Legal Officer and starting in 2002, Head of the Programme Legal Services Division at the European Space Agency’ Headquarters in Paris. In this capacity, he was involved in Government-level and Space Agencies-level negotiations of the multi-layered International Space Station Agreements and arrangements, and their subsequent implementation. This article reflects the views of the author on the corresponding matter.
[ii] Article 12 of the ISS Intergovernmental Agreement provides that “Each of the Partners shall have the right of access to the Space Station using its respective government and private sector space transportation systems, if they are compatible with the Space Station.” The IGA mentioned explicitly the U.S. Space Shuttle as an available system but also indicated that other space transportation systems will be used as those systems become available. The NASA-ESA Memorandum of Understanding recognises in its Article 12 that the responsibility for the development of space transportation systems rests with the providing partner but also imposes on that partner the responsibility to exchange information in appropriate ISS program documentation.
[iii] On its Internet site (https://blogs.nasa.gov/commercial crew/category/nasa-astronauts, consulted on 25 May 2020), NASA indicates that “NASA’s Commercial Crew Program has worked with several American aerospace industry companies to facilitate the development of U.S. human spaceflight systems since 2010. The goal is to have safe, reliable and cost-effective access to and from the International Space Station and foster commercial access to other potential low-Earth orbit destinations.”
[iv] The deadline for ending the operation of the International Space Station (ISS) is based on an informal understanding among the five Partners and is currently envisaged for 2024. In all likelihood, it will be pushed back further depending of the outcome of the technical evaluation of main Station elements in the coming years and the state of readiness of the Partners’ successor cooperative endeavours, such as the (Lunar) Gateway. The ISS Agreements do not provide for a precise date for ending ISS operation and the practical arrangements, including for the sharing of the corresponding costs and responsibilities, for ceasing operation of the ISS will need to be agreed among the partners’ agencies in due time. The ISS Agreements themselves can be terminated only through the formal withdrawal from the Intergovernmental Agreement (IGA) of one or several Partners. However, one possibility being seriously envisaged would be to keep the IGA in force to govern other cooperative endeavours of the Partners, even after operation of the ISS is ended.
[v] In that connection, NASA announced through a press release on 27 January 2020, updated on 28 February 2020, (https://www.nasa.gov/press-release/nasa-selects-first-commercial-destination-module-for-international-space-station) that it had awarded to Axiom Space of Houston a fix-firmed price contract with a potential maximum value of $140 million to provide at least one habitable commercial module to be attached to Node 2 forward post of the ISS. The press release also mentions that “…NASA also plans to issue a final opportunity to partner with the agency in the development of a free-flying, independent commercial destination…” with a view to enabling NASA to meet its long-term needs in low-Earth orbit well beyond the life of the Station.
[vi] Agreement among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation and the Government of the United States of America concerning cooperation on the civil international Space Station, signed in Washington D.C. on 29 January 1998 (see: https://www.state.gov/12927 consulted on 25 May 2020).
[vii] Memorandum of Understanding between the National Aeronautics and Space Administration of the United States of America and the European Space Agency concerning Cooperation on the Civil International Space Station, signed on 29 January 2018 in Washington D.C. by Daniel S. Goldin, the NASA Administrator, and Antonio Rodotà, the ESA Director General (see the full text of the MOU at: https://www.nasa.gov/mission_pages/station/structure/elements/nasa_esa.html, consulted on 25 May 2020).
[viii] Article 11.1 of the IGA.
[ix] Article 11.2 of the IGA.
[x] The Partners’ acceptance of the cross-waiver, even considering the risk that a damage may be caused through astronauts activities, was based on the fact that professional astronauts, i.e. those members of the respective partner agencies’ staff complement, receive a particularly exhaustive training during several years before their flights, thus making the corresponding risk acceptable. The situation appeared to be slightly different when the first spaceflight participants, referred to occasionally as space tourists (Dennis Tito in 2001 and Mark Shuttleworth in 2002), were brought to the ISS under contract with the Russian partner. A solution to respond to the perception by the other partner agencies of an increased risk level of potential damage was found in the form of an insurance cover for damage being subscribed on a case by case basis for spaceflight participants.
[xi] The different cooperation bodies, in which representatives of the five partner agencies deliberate on the basis of consensus, among the partner agencies are established through the four (bilateral) ISS Memorandums of Understanding concluded between NASA and each of the other partner agencies, i.e. NASA and the Russian Space Agency, NASA and ESA, NASA and the Government of Japan, and NASA and the Canadian Space Agency.
[xii] It is assumed that the two NASA astronauts involved in the NASA Demo 2 mission are assigned to the current mission(s) executed in the ISS under this category of assignment.
[xiii]The first fee-paying spaceflight participant – brought onboard the ISS by the Russian partner based on contractual arrangements – has been Dennis Tito in 2001, the last one being Guy Laliberté in 2009. Also, individuals were brought onboard the ISS as spaceflight participants pursuant to a dedicated cooperation between the different (non- ISS Partner) States of nationality of the individuals in question and an ISS Partner State, cooperation that may be formalised at partner agency level with foreign counterparts. The last spaceflight participant in that situation has been the first citizen-astronaut of the United Arab Emirates (UAE), Hazza al-Mansouri in September 2019.
[xiv] Article 11.8 of the NASAS-ESA MOU provides 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.”
[xv] See full text of the Code at : https://www.law.cornell.edu/cfr/text/14/1214.403 consulted on 25 May 2020.
[xvi] On 15 September 2000 in Washington DC, the Multilateral Control Board (MCB), the highest-level cooperative body established pursuant to the MOUs, approved the 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 partner agency officials, working in close consultation with the competent authorities of the ISS Partner States.
[xvii] For an analysis of the content of the Code, see: André Farand, “The Code of Conduct for the International Space Station Crew”, 105 ESA Bulletin 64-68, February 2001, available at https://www.esa.int/esapub/bulletin/bullet105/bul105_6.pdf consulted on 25 May 2020.
[xviii] See the complete document at: http://www.spaceref.com/news/viewsr.html?pid=4578, consulted on 25 May 2020.
[xix] The flight opportunities offered by the Russian partner agency to spaceflight participants provided the occasion to make use of the Non-Partner procedure. The first instance was in 2002 with the proposed flight of Mark Shuttleworth, a South African national. This was also the case with the flight of the Emirati astronaut Hazza al-Mansouri in 2019.
[xx] Since the non-Partner procedure involve communications among partner agencies, when receiving notification from the secretary of the Multilateral Coordination Board (MCB) under that procedure, and before responding, ESA carries out consultations with the European Partner States since the responsibility of confirming concurrence or consensus is a IGA-level prescription, which falls on the signatories of the IGA.