Nov 12

Nov 12 Are Space Tourists Astronauts?

Astronaut in a Manned Maneuvering Unit (courtesy of NASA)

“Astronauts are inherently insane. And really noble.”

— Andy Weir

****MAJOR UPDATE ON 8/10/2023****: I have started an online supplement to this piece where I will try and maintain an updated list of space tourists, categorized by their inaugural spaceflights. You can visit the catalog here: https://alexsli.com/thespacebar/spacetouristslist. Thank you!

**** MAJOR UPDATE ON 5/15/2023: I have rewritten and incorporated the below into a law review paper: "Touring Outer Space: The Past, Present, and Future of Space Tourism" by Alex S. Li (csuohio.edu). Please review the material there as it is more up-to-date than below. Thank you! ****

*** April 2020 Update: Relatedly, I have a new post that looks at early competitors in the Outer Space Tourism Race: available here if interested. ***

*** February 2019 Update: As this post becomes more popular with Virgin Galactic’s SpaceShipTwo reaching “Outer Space” (in quotes as the spacecraft did not reach the current boundary for Space: the Kármán Line), I will start with a short summary. ***

******TL;DR: unfortunately, of the three legal definitions that I discovered, all of them suggest that space tourists would not be able to designate themselves as “astronauts” (legally speaking)******

In late October 2017, Virgin Galactic, a space tourism company, tweeted Federal Aviation Administration’s certification of Spaceport America as an approved launch site for Virgin Galactic’s spaceflights. A few days later, Richard Branson, the founder of the Virgin Group, announced Saudi Arabia’s $1 billion investment in Virgin’s space-related portfolio companies including Virgin Galactic, The Spaceship Company, and Virgin Global.

With a projected annual growth rate of over 14%, space tourism is another trending industry for this new space age. A product of the 21st century, space tourism officially lifted off in 2001 when Dennis Tito hitched a ride onboard a Soyuz spacecraft to the International Space Station (“ISS”), and thereby becoming the world’s first space tourist. But, at the time, NASA was not particularly fond of commercial space tourists; in fact, a lengthy negotiation took place among the five nations responsible for the ISS and Dennis Tito was granted access to ISS only after accepting certain restrictions such as visiting the United States segment under escort (though Dennis might have broken this rule within an hour of arriving at the space station…).

NASA’s main objection against Tito was that Dennis did not have, and will not have been able to complete, enough training by his then-launch date. As NASA stated in a press release, it worried that “the presence of a non-professional crewmember who is untrained on all critical station systems, is unable to respond and assist in any contingency situation which may arise, and who would require constant supervision, would add a significant burden to . . . and detract from the overall safety of the International Space Station.” But, NASA added that it is not against space tourists when the time is right.

Fast-forward sixteen years, with space tourism more of a mainstream (well if you have the cash that is…) reality, NASA also appears to be more onboard with this concept. However, this brings up an interesting question: Could a space tourist ever receive enough training to be called an astronaut? Or, is the term “astronaut” reserved for a selected set of professionally-trained and occupation-specific individuals? While I originally thought there would be an easy answer to this question, like everything else related to space law, this is not the case. Below is what I have uncovered in solving this definitional mystery.

What’s in a Name: Who is an “Astronaut”?

Like any good student, I started this quest by going straight to the dictionaries. According to Merriam-Webster, an astronaut is someone “who travels beyond the earth’s atmosphere.” Dictionary.com also defines astronaut as “a person engaged in or trained for spaceflight.” Oxford Online Dictionary supports these definitions and indicates that astronaut is “a person who is trained to travel in a spacecraft.”

All three of these definitions suggest that a space tourist should be able to earn the “astronaut” designation. Before space tourists go beyond the earth’s atmosphere in a spacecraft, for safety reasons, they all would receive some form of training and thereby would check off all of the requirements in these definitions. This perspective has at least one supporter from NASA: NASA astronaut Mike Massimino agrees but also noting that “they won’t be NASA astronauts, that is still a slightly different classification.” But, others at NASA also disagree. One, for instance, pointed to the fact that space tourists “do not receive the full training. They therefore do not have the skill set or knowledge base of an astronaut. They are not astronauts.”

With people on both sides of the fence, it is apparent that these generic definitions cannot end this debate. But, since the term “astronaut” is used in several United Nation treaties, would there be a legal definition there that could resolve this issue?

Of the five core United Nation treaties related to Outer Space, only one speaks directly to this definition. Article 10 of the Moon Treaty of 1979 states that all nations will “adopt all practical measures to safeguard the life and health of persons on the Moon. For this purpose they shall regard any person on the Moon as an astronaut within the meaning of Article V of [The Outer Space Treaty of 1967] and as part of the personnel of a spacecraft within the meaning of [The Rescue Agreement of 1968].” Hence, this definition suggests that a space tourist could qualify as an “astronaut” as long as that space tourist arrives on the Moon. But given only twelve people have made it onto the Moon so far, this definition is unlikely to assist us in resolving this case.

Additionally, what about a space tourist that does not step onto the Moon and “merely” visits Outer Space? Well, it turns out that the UN treaties never defined this term, and so there is no one universally accepted legal definition for the term “astronaut”. However, through a little bit of digging, I was able to uncover several legal definitions that have been proposed.

The Three Legal Definitions of an “Astronaut”

The three leading legal definitions for an “Astronaut” were proposed by 1) Yasuaki Hashimoto, 2) Elena Kamenetskaya, and 3) Francis Lyall and Paul B. Larsen.

Hashimoto’s Approach: the Exemplary Model

In the article, “The Status of Astronauts towards the Second Generation of Space Law,” Yasuaki Hashimoto explained that to be an “astronaut,” that person must satisfy three requirements; that person must be “1) in an object located in space, 2) conducting their activities for the benefit and in the interests of all countries, and 3) regarded as an envoy of mankind in outer space.”

I believe the Outer Space Treaty provides the background for Mr. Hashimoto’s definition. Article I of the Outer Space Treaty states that “the exploration and use of Outer Space . . . shall be carried out for the benefit and in the interests of all countries.” Furthermore, Article V of the Outer Space Treaty notes that “State Parties to the Treaty shall regard astronauts as envoys of mankind in outer space.” Hence, two of the pertinent requirements in Mr. Hashimoto’s definition were clearly inspired by this treaty. By rooting itself in the Outer Space Treaty, which is the first—and perhaps most important—international agreement governing the exploration of Outer Space, this definition could carry some significant weight.

In my opinion, since the Outer Space Treaty was written and ratified as an aspirational document (“Created when space travel was in its infancy, the agreement was meant to address issues that could arise as space technology advanced.”), I refer to Mr. Hashimoto’s definition for “astronauts” as the Exemplary Model Approach; under Mr. Hashimoto’s wording, a person would only qualify as an astronaut if that person visits Outer Space for the advancement and benefit of humanity as a whole; this suggests that an astronaut must be an exemplary model of humanity and is someone, who at his/her core, is about selfless service as a representative of humankind.

Under this legal definition, a space tourist likely will not qualify as an astronaut. While the space tourist would be in an object located in Outer Space, it is unlikely that the space tourist would be regarded as an envoy of humanity: it is more likely that the space tourist is visiting Outer Space for his/her own benefit rather than for the benefit and in the interest of the world.

Kamenetskaya’s Approach: the Consummate Professional

In “Cosmonaut (“Astronaut”): an Attempt of International Legal Definition,” Ms. Elena Kamenetskaya provided another legal definition for an “astronaut”: it’s a person who is 1) carrying out professional activities connected with the exploration and use of Outer Space or on a celestial body; and 2) performing those activities in accordance with the rules and principles of international law.

I refer to this definitional approach as the Consummate Professional Approach. Ms. Kamenetskaya’s definition for an astronaut is based on such person performing a set of specific occupational activities and at a certain professional standard that will comply with international laws and obligations. This would suggest that in order to be called an “astronaut,” that person must be a working professional and must be familiar with, able to comprehend and follow all of the rules and regulations that govern his/her activities in Outer Space.

Under this legal definition, a space tourist, who presumably is taking a leisure stroll in Outer Space, would not qualify as an astronaut. Even if that space tourist has a complete working knowledge of international rules and regulations governing his/her activities in Outer Space, the space tourist is more likely to be on vacation rather than carrying out some professional activities.

Lyall’s and Larsen’s Approach: the Specialized Worker

Finally, in Space Law: A Treatise, Mr. Francis Lyall and Mr. Paul Larsen provided a short and simple legal definition for an “Astronaut.” In this treatise, they noted that “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.”

Because of the correlative element, I refer to their approach to this legal definition as the Specialized Worker Approach. In order to become an “astronaut” under Lyall’s and Larsen’s definition, the person must be selected and trained. Hence, it is not enough that a person is in Outer Space conducting some form of activity, that person must also have been selected for the activity that he/she is performing. This indicates that the person, like a worker, is being directed to perform certain tasks. The “selection” element in this definition would suggest that certain criteria are used in choosing who becomes an “astronaut,” and hence the person would also need to meet those specialized requirements.

What is interesting about this definition is that a space tourist could arguably qualify as an astronaut. The space tourist must have applied to a space-faring company and would need to be selected by such company (even if the selection criteria is just basic health conditions) before that tourist can embark on his/her maiden voyage into space. Once the space tourist is selected, properly trained on safety procedures, and launched into Outer Space, the tourist would have easily satisfied all of the requirements needed to become an “astronaut” under this definition.

But, Mr. Lyall and Mr. Larsen actually objected to this classification. In outlining their objection, they discussed that not “all those on a cruise-liner [are] sailors, or passengers on aircraft [are] pilots, flight engineers or cabin staff and there is a clear parallel between such cases and touristic space-flight.” Therefore, it is likely that the “selection” element in this legal definition requires something more than just basic qualifications; in order to satisfy the “selection” element, basic qualifications, such as having the necessary health standards, are merely threshold requirements on top of which further selection needs to take place. Hence, this legal definition also appears to bar space tourists from reaping the benefits of being astronauts.

Implications for the Future

Unfortunately, for the future space tourists, of the three legal definitions that I have uncovered, all of them indicate that space tourists would not be able to designate themselves as “astronauts.” While I am sure space tourists are not too caught up in their legal designations as they enjoy a rarefied view of earth that few have been able to experience, there are some legal ramifications as the commercial space industry continues to develop.

For instance, many of the international treaties, such as the Rescue Agreement, were written during a time when there were no commercial space activities and are seemingly tailored specifically to “astronauts” who are trained by a national government to represent such nation in space. Without the legal designation of being an astronaut, if a space tourist were involved in some form of emergency, would all nations, who are signatories to these treaties, have a legal obligation to rescue that space tourist as well? For instance, while the Rescue Agreement appears to apply to all “personnel of a spacecraft,” its preamble does note that it is for “the rendering of all possible assistance to astronauts in the event of accident, distress or emergency landing, the prompt and safe return of astronauts. . . .” While as Mr. Hashimoto pointed out in his essay, “when considering appropriate rescue system [for this new era of space law], it will be rather difficult to treat the astronauts and tourists in different ways,” would certain nation-states—that lack certain resources and are not afraid of bad PR—try to weasel their way out by making the argument that it might not apply to a space tourist? Perhaps…

Additionally, through this journey, I have learned that there is no one universally-accepted legal definition for an “astronaut.” Although the three approaches I have discussed are similar, they are also uniquely different. With such uncertainty, investments in the space tourism industry might be dampened. And before we can regulate Outer Space related activities, we need to make sure that there is no confusion to the basic terms that might appear in such governing laws. Therefore, a comprehensive definition for who qualifies as an “astronaut” should take into account space tourists as well as other personnel (such as space miners, space construction workers, and etc.). This will ensure that we have the proper legal framework for the space tourism industry to properly take off.