The Outer Space Treaty (OST), the foundation of International Space Law (ISL), was a pact amongst nations, forged in an epoch where space was an expression of sovereign ambitions and an instrument of international politics. Given the intent and design of the OST and with a view to avoid the perils of colonialism and what it represented to international peace and security, the term coined for space explorers, “astronauts”, was meant to represent a person who is not only physically and mentally sharp to withstand the test of outer space, but whose ethics and values transgressed the ulterior agendas of national interests.
Indeed, anyone who has had the occasion to interact with an astronaut can vouch that he/she/they truly and certainly sees the bigger picture and has a perspective and a vision for the future. Therefore, to become an astronaut, ordinariness remained a liability and a hurdle. One could say that since the highest of character was a job description, the lack of it was, perhaps, the most prominent barrier of entry to get a ticket into space.
Accordingly, ISL and specifically the OST followed by the Rescue Convention ensured security for these beacons of humankind by stipulating that when they fall back into earth after a gruelling few days in space, the situs of their landing does not deprive them of the dignity, respect, and gratitude of all mankind. While the principle of granting immunity to astronauts from the petty conflicts of Earth was enshrined in the OST, its form and manner came to be defined in the Rescue Convention.
Thus, an American astronaut landing, for example, in the middle of Venezuela is still expected to be treated with the dignity and respect befitting her contribution to mankind’s foray into space and returned to her home state without incident. Therefore, ISL also grants to this member of the elite institution of astronauts certain safeguards and immunities when they find themselves landing on earth in a place that is otherwise considered hostile to the astronaut’s nation.
The dignity, the respect, and the honour inherent to the institution of the astronaut has now found a curious contender, claiming his place amongst these champions—the billionaire entrepreneur. Unlike the futuristic vision of space explorers, the early authors of ISL did not foresee or contemplate the emergence and influence of free market economics and its practitioners as a factor affecting space activities. But today, the reality of entrepreneurs buying their tickets to space is in front of us thanks to Richard Branson’s historic journey into the outer fringes of the atmosphere.
While the traditional astronaut’s strength of character was premised on the basis of their values, strength of body and mind, the entrepreneur’s claims to space is perceived mostly as a representation of his boldness in taking the economic risks inherent to investing in space. Should this new curious character, i.e., the billionaire entrepreneur then be admitted into the aforesaid institution of the astronaut? If the answer is yes, this new age astronaut becomes the beneficiary of all the safeguards contained in the OST and the Rescue Agreement, but if the answer is no, then there remains the risk that the principle benefits granted to astronauts under the OST is no longer available to the billionaire space traveller who is unlucky enough to land in an enemy nation’s territory.
ISL does not provide us a ready answer to this question. As of date, internationally, there remains no consensus on the definition of the term “astronaut”. We now know, in practice, that most traditional astronauts are representatives of the state. In other words, historically, an astronaut has been inseparable from the nation she represents. That raises the possibility that ISL may measure a person’s claims to being an astronaut based on the length of the tether between them and the state that they represent. On the other hand, that also risks making space less inclusive, for nations that had the luxuries of investing into space early on will have a natural and unfair advantage in crowding space with their astronauts.
Free market economics has now enabled even those nations without a long history or pedigree in space to now stake their claim by simply making their terrestrial economics more open and liberal to space entrepreneurs. Defining the institution of astronauts on the basis of just the tether to sovereign sanction for the space activity risks making space less inclusive. There also remains the other risk of sovereign ambitions, known for its mischievous effects on earth, to travel to space if space is only filled with sovereign-sanctioned astronauts.
This debate becomes all the more important for the 21st century given that in the short term, space travel can operate as a prelude to economics and commerce in space, such as mining and in the long term, should we live to see the day, the beginning of our tryst to see other worlds and meet other civilisations. As we embark on these efforts to colonise and economically leverage space and possibly forge diplomatic relationships with new worlds and civilisations, should we allow the ordinariness of humanity to be at the forefront of such epoch defining discoveries or should we instead enable only the best of us to represent us in this new and unknown frontier? If history is anything to go by, one particular private explorer claiming to represent sovereign institutions of Europe, not only committed unspeakable atrocities in the Americas but also brought syphilis back to the rest of the world. Thus, regulating who can be the explorers of the future in space, through the institution of astronauts, would be critical to advance the best lessons from our own history and avoid the worst of it.
Whatever may be the final outcome of our debates, the reality of the matter is that space is on its way to becoming, no more, the theatre of nations and politics, but instead a democratic space waiting to be claimed by anyone with the means to do so. The international legal community can no longer afford to perpetrate the lack of vision that caused the OST to fall short of regulating the commercial dynamic of space activities. There remains an urgent need to ensure that with these new developments involving the Jeff Bezoses and Richard Bransons of the world travelling to infinity and beyond, space law becomes an aid to their ventures, incentivising the massive risks they stomach to make space travel more viable, while at the same time balancing it against the larger interests of human kind.
This article was first published on ORF.