| by Dr. Ruwantissa Abeyratne
( May 04, 2012, Montreal, Sri Lanka Guardian) On the first day of February 2003, we woke up to the sorrowful news that the Space shuttle Columbia had disintegrated 200,000 feet above central Texas upon re-entry into the Earth’s atmosphere. As United Nations Secretary General correctly observed after the tragedy, activities in outer space know no boundaries and therefore this was an international tragedy. Whilst the general loss of the spacecraft itself should not be downplayed, our sadness and heartfelt feeling on this occasion was due to the demise of the seven astronauts aboard – seven incredibly disciplined, rigorously trained and courageous men and women who braved the inevitable possibilities of the perils that space travel brings. Unbeknown to most of us, these international heroes had spent sixteen days in space, conducting scientific experiments that were calculated to alleviate human suffering and illness. While we were ensconced in the comfort of our warm homes, these angels of mercy and courage were risking their lives in a hostile environment, just to make life a bit easier for all of us.
Space Law is primarily governed by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, which was opened for signature at Moscow, London and Washington on 27 January 1967 ( also called the Outer Space Treaty). An astronaut is a person who carries out work in outer space for the benefit of all mankind. According to Article 1 of the Outer Space Treaty of 1967, the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries. . Also according to the Treaty, there is no such being as a “person” in outer space. There are only astronauts and personnel. The Outer Space Treaty provides that State parties to the Treaty shall regard astronauts as “envoys of mankind” in outer space and shall render to them all possible assistance in the event of accident, distress or emergency landing on the territory of another State party or on the high seas. The provision also requires State parties to return astronauts under the above circumstances safely and promptly to the State of registry of their space vehicle.
The Treaty provision is a reproduction verbatim of Paragraph 9 of United Nations General Assembly Resolution XVIII of 1962 on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. Although initially, the world’s “envoys of mankind” seemingly created some apprehension in the international community as to whether such phraseology connoted diplomatic immunity to astronauts, the ambivalence has since been cleared by the now accepted reasoning that it was only a figure of speech which has not been repeated in any United Nation’s documentation yet. The perceived inadequacy of definitive identification at international law of an astronaut and his conduct in outer space retains three postulates as guidance in the determination of an astronaut’s conduct. They are that international law is incontrovertibly applicable to outer space activities and outer space, including the moon and other celestial bodies, are totally independent of appropriation by States or individuals, leading to the inevitable conclusion that outer space would be analogous at international law to the high seas.
Astronauts are clearly within the purview of the State on whose territory they are or above whose territory and in the airspace of the State concerned, for conduct therein. Generally, in outer space, this status quo changes, and astronauts become liable under the laws of the State of registry or the State which launches their spacecraft for travel and work in outer space. This is brought to bear by Article VIII of the Outer Space Treaty which provides that a State party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Like the earlier cited treaty provision, this provision is derived from United Nations documentation and has been reproduced almost verbatim from paragraph 7 of the 1963 General Assembly Declaration appearing in Resolution 1962 (XVIII). The Treaty provision extends the scope of application of the provision to conduct of astronauts both inside and outside the spacecraft.
However, the interpretation of Article VIII could well result in ambivalence and confusion. The “object” and “personnel” referred to in the Treaty provision do not adequately cover persons who are not “personnel” such as passengers in a spacecraft. Of course, the quasi jurisdiction of the State of registry of the spacecraft can apply both in the instance of conduct in the spacecraft as well as outside the spacecraft on the basis that the astronaut concerned would be deemed to belong to the spacecraft at all times in outer space. Logically, therefore, such jurisdiction could be imputed to passengers, visitors and guests by linking them to the spacecraft in which they travelled. This far reaching generalization would then cover the conduct of an astronaut or other persons while walking on the moon, Mars or other celestial body, as well as such persons who go on space walks outside the spacecraft in which they travelled.
Another provision which sheds some light on past attempts by the international community to identify liability and jurisdictional issues relating to astronauts is Article 12 of the Moon Treaty of 1979 which provides that States Parties shall retain jurisdiction and control over their personnel, space vehicles, equipment facilities, stations and installations on the moon.
It is presumed that the legal link between the personnel and the spacecraft they travel in under the circumstances are imputed to the State of registry of the said craft. If this were not the case, and such a link cannot be established, the provision itself becomes meaningless and destitute of effect.