When is an Astronaut not an Astronaut?

Tim Peake has blasted off to the International Space Station (ISS). He will be the first British astronaut to travel to the station in 20 years, after six years of training. It is not the first time that a Briton has flown into space, but other British astronauts have either benefited from private funding or have adopted dual citizenship.

In December, the British will be looking upwards again. Children will be conducting simultaneous experiments on the ground to inspire interest in science and space covering rocket science, computer coding, zero robotics, fitness, and can participate in the "Mission-X Train like an Astronaut" project.

Peake's is an institutional mission of international collaboration. Almost 50 years ago, at the height of the Cold War, this collaboration led to the drafting of the Outer Space Treaty 1967, which called on state parties to it to "regard astronauts as envoys of mankind in outer space" and to render to them all possible assistance in the event of accident, distress, or emergency landing onto another or on the high seas.

Elaborating on the treaty, the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space 1968 (Astronaut Agreement) was drafted, articulating protection and assistance to "personnel of a spacecraft" rather than "astronauts" however.

This was a time when almost exclusively state astronauts would participate in space flights and rescue and recovery operations would be conducted by states. There was little concept of these activities being undertaken by private companies and individuals.

Human Spacecraft

Roll on to Spring 2016 and, according to George Whitesides of Virgin Galactic, the first commercial flights into space will be launched for those who can afford the 155,000 British pounds ticket. Seven hundred people have bought a ticket to become a "citizen astronaut" or a "human spaceflight participant" and share some of the experiences of a professional astronaut. But is there a difference between these paying space tourists and Peake, at least under the Treaty and Astronaut Agreement?

Defining what private spaceflight constitutes may be important when confronting the legal issues arising from the plans of Virgin Galactic, XCOR Aerospace, and other private companies. A space tourist, Dennis Tito, was the initial catalyst for such discussions when he visited the ISS for a week.

"The discussion about his presence on the Russian module, largely against the wishes of the other ISS participants, quickly led to the formal establishment of a category of space traveler different from that of a professional astronaut — that of the ’spaceflight participant,” Frans von der Dunk from the University of Nebraska, describes. "This distinction between professional astronauts and spaceflight participants, even if formally applicable only in the ISS context, may turn out to be trendsetting, if not an industry standard.”

As Professor Frank Lyall expresses, "any definition of an 'astronaut' for legal purposes would appear to require two elements: an element of training and an element of altitude. Correlatively there must also be an element of selection."

In the days when the Astronaut Agreement was discussed and drafted, all “astronauts” were trained and likely to be members of the military forces. Training may continue for a tourist purchasing a trip to the ISS for an orbital flight but for sub-orbital space flights a participant may only receive a few days of pre-flight preparation, including emergency response training.

Good Samaritan

So, will the Astronaut Agreement be applicable both to professional astronauts and human participants? The "good Samaritan" doctrine to render all assistance to astronauts articulated in the treaty and the Astronaut Agreement has not yet been invoked. "General humanitarian obligations to assist humans in distress, as is the case in the high mountains or on the high seas, may well be considered to cover what is necessary and justified for spaceflight participants without resort to the 'entitlements’ of the [Astronaut] Agreement or the qualification as ‘envoys of mankind,’" Frans von der Dunk comments. It would currently seem unimaginable, and unreasonably stringent, if this was not the case.

Whether or not a human spaceflight participant is technically an astronaut or not is almost irrelevant to the inspiration that such achievements can give to children and students, particularly in the Science, Technology, Engineering and Math (STEM) subjects. The younger generations need to feel that they can achieve the "right stuff" to fulfill ambitions.

Congratulations and good luck Tim — "may the force be with you." VS

_{Joanne Wheeler is a communications partner at Bird & Bird specializing in communications, satellite and space law. Bird & Bird is a commercial, corporate, finance, litigation, IP and regulatory specialist practice for the space industry.}