Jeff Bezos and others celebrated the first crewed flight of New Shepard last month, but they may not qualify as “astronauts” under some legal definitions. (credit: Blue Origin)

Is it time to create the designation of non-governmental astronaut?

by Michael Listner
Monday, August 16, 2021

The flights of Virgin Galactic and Blue Origin with their respective founders has reinvigorated the debate as to what an astronaut is and, specifically, whether non-governmentals are indeed astronauts. Nevertheless, these two flights open a broader discussion as non-governmental space activities increase in measure and scope how they will be looked upon and treated by international law, especially as outer space activities expand.

What is an astronaut?

By and large, the term “astronaut” has been thrown around by the media and the providers of the launch and reentry flights without thought of what the term really means. A popular reference to the term that is overused is found in the definition provided by the Merriam-Webster dictionary: “a person who travels beyond the earth's atmosphere also : a trainee for spaceflight.”[1]

Given the etymology of the “astronaut” predates the era of spaceflight, the usage of the word applying this definition is understandable.[2] Certainly, there are variations of this definition that one could quibble over; however, in the context of outer space activities, including activities by non-governmentals, the term astronaut is not a defined term but rather a legal status that confers rights and benefits and invokes duties and obligations to states under international law.[3] This means whether one is an astronaut is determined by a legal test and not a dictionary definition. While international law does not specifically define the term, three tests have been proffered.[4] Of the three, it is the test offered by Professor Yasuaki Hashimoto that is the test that best harmonizes with international law through the Outer Space Treaty.[5]

For the legal status of “astronaut” to apply under Professor Hashimoto’s test the person must be:

1. in an object located in space
2. conducting their activities for the benefit and in the interests of all countries
3. regarded as an envoy of mankind in outer space.[6]

Applying this test to non-governmentals like the personnel who were carried on SpaceShipTwo and New Shepard, the first prong is easily met as arguably both launch and reentry vehicles were “in space.” However, both fail the second and third prong of the test as they are both commercial ventures that are not conducting their activities for the benefit and interest and all countries nor are they or would be regarded as envoys of all mankind in outer space. This means absent legislative action, non-governmental personnel would not have any legal status in the eyes of domestic and international law.

Legal status for non-governmentals

Congress was mindful of the dilemma this test creates and the rights and duties of the US under domestic laws for non-governmentals participating in outer space activities.[7] This led to the creation of the category of “crew” and “space flight participant” in Title 51, Chapter 509 of the United States Code. This amendment to the United States Code specifically addresses the deficiency in that it creates legal standing for non-governmentals. First, Title 51 Chapter 509 creates the legal status of “crew,” which is

“…any employee of a licensee or transferee, or of a contractor or subcontractor of a licensee or transferee, who performs activities in the course of that employment directly relating to the launch, reentry, or other operation of or in a launch vehicle or reentry vehicle that carries human beings.”[8]

Title 51, Chapter 509 also creates the status of “space flight participant,” which is defined as:

“…an individual, who is not crew or a government astronaut, carried within a launch vehicle or reentry vehicle.”[9]

These two additions to US domestic space law create legal standing for non-governmentals other than “astronaut” to harmonize non-governmental launch and reentry activities and personnel with international law, i.e., it implicitly excludes personnel involved in non-governmental launch and reentry activities as astronauts and simultaneously complies with the “authorization and continuous supervision” language in Article VI of the Outer Space Treaty by providing them an alternate legal status.

These two legal constructs created a paradox with the introduction of the Commercial Crew program for launching NASA personnel on commercial spacecraft to the International Space Station. The challenge being these personnel might be considered crew or spaceflight participants because of their presence on a commercial space craft and might complicate their status as astronauts and the protections afforded to them under international law. Congress rectified this by amending 51 U.S.C. § 50902 to create the legal status of “government astronaut”:

“government astronaut” means an individual who—
(A) is designated by the National Aeronautics and Space Administration under section 20113(n);
(B) is carried within a launch vehicle or reentry vehicle in the course of his or her employment, which may include performance of activities directly relating to the launch, reentry, or other operation of the launch vehicle or reentry vehicle; and
(C) is either—
(i) an employee of the United States Government, including the uniformed services, engaged in the performance of a Federal function under authority of law or an Executive act; or
(ii) an international partner astronaut.”[10]]

This amendment to Title 51, Chapter 509 ensure these personnel will meet the legal requirements of “astronauts” and make them eligible for the protections and privileges the status has under international law,[11] including rendering 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” even though they are flying on a mission licensed by the FAA.[12]

Where does this leave the personnel on the Virgin Galactic and Blue Origin launch and reentry flights? Much to the disappointment of the media and marketing, neither qualify as astronauts. That statement in of itself is not a complete answer as each must fit either into the designation of “crew” or “space flight participant” found in Title 51, Chapter 509. With that said, the launch and reentry flights performed by Virgin Galactic and Blue Origin were contingent on the FAA amending their launch licenses to permit space flight participants and represents the first time the FAA has authorized space flight participants on a non-governmental vehicle.

However, each of the launch and reentry vehicles are different, which affected the evolution of their respective licenses. For example, the Blue Origin launch and reentry vehicle is automated and does not require a crew for its testing or operational flights. However, with FAA approval, Blue Origin’s license now expressly permits crew and space flight participants to be flown in its launch and reentry vehicle.[13] Conversely, Virgin Galactic’s launch and reentry vehicle required crew for its testing and for its operational flights. This led the FAA to restrict Virgin Galactic’s license, which was originally issued on issued on July 20, 2016, to crew only and expressly prohibited space flight participants until Virgin Galactic met requirements set by the FAA. The FAA revised Virgin Galactic’s license on June 24, 2021, removing the restriction, although the license does not expressly permit either crew or space flight participants.[14]

Given this, the legal status of the personnel on SpaceShipTwo is a combination of both crew and space flight participants with the personnel operating the vehicle qualifying as crew and the remaining personnel space flight participants. New Shepard is dissimilar as it is an automated craft that does not require a crew to perform launch and reentry operations. Since no crew is required, the personnel on board are space flight participants.[15] Both the Virgin Galactic launch and reentry flight and the Blue Origin flight were suborbital and didn’t bring into question the issue of protections for astronauts given the dubious chance they would encounter a situation requiring the assistance of foreign states.

However, a fly in the ointment with regards to protections and non-governmentals is the upcoming Inspiration4 mission, which is slated to launch no earlier than September 15. The Inspiration4 mission is different from the activities of Virgin Galactic and Blue Origin as it will be an orbital flight with non-governmentals. Considering the nature of the mission and the training required, the personnel will likely be crew as defined by 51 U.S.C. § 50902(2) but still will not be astronauts and not possess the international protections afforded.[16]

Another fly in the ointment is a series of commercial missions to the International Space Station by so-called “private astronauts.” The first such mission, by Axiom Space, will occur in early 2022. Even though this is a public-private venture, the personnel involved are not NASA employees, which means they are not government astronauts but rather “crew” under Title 51, Chapter 509.[17] Therefore, the term “private astronaut” is misleading as the personnel involved would not be afforded international protections.[18]

However, if there is a mishap during either of these missions, many space law experts agree non-governmentals would be granted similar protections afforded to astronauts, and for a state to refuse to render assistance would invite negative political optics. Interestingly, the action of a state rendering assistance to non-governmentals could have the effect of creating a path to customary international law that would extend the protections of astronauts to non-governmentals; however, the likelihood of an incident arising is small and certainly a foreign state interceding does not necessarily cement the precept into customary international law.

The FAA commercial astronaut wings program

This discussion would not be whole without mentioning the FAA’s commercial astronaut wings program. It’s been established neither crew nor space flight participants have the legal standing of astronauts. However, the FAA does offer a path to commercial astronaut wings for non-governmental personnel who are crew of commercial launch and reentry vehicles through its commercial astronaut wings program.[19] Applicants for astronaut wings have to meet the following criteria:[20]

1. The applicant must have been on an FAA licensed launch;
2. The applicant must meet the requirements for launch and reentry crew qualifications and training under 14 CFR 460.5; and
3. The applicant must demonstrate flight beyond 50 statute miles above the surface of the Earth as flight crew on an FAA licensed or permitted launch reentry vehicle.[21]

The FAA amended its requirements to receive commercial astronaut wings on July 20, 2021. In addition to the above requirements, the applicant must demonstrate “activities during flight that were essential to public safety, or contributed to human space safety.”[22] The July 21 order also allows for “honorary commercial astronaut wings” that can be awarded at the discretion of the FAA.[23]

This means as the launch and reentry crew, the pilots of Virgin Galactic’s SpaceShipTwo could apply for and possibly receive commercial astronaut wings. However, the other personnel on SpaceShipTwo would not be eligible for commercial astronaut wings because they are space flight participants, not crew. On the other hand, Blue Origin’s launch and reentry vehicle is automated and the personnel on board would not be eligible for commercial astronaut wings because they space flight participants and not crew.[24] Regardless of whether commercial astronaut wings are awarded, the recipients do not attain the status of astronauts nor are they entitled to the protections found in international law.

The Non-Governmental Astronaut Act

The current domestic law for non-governmentals is sufficient for the limited activities of launch and reentry. Yet, as non-governmental activities extend to orbit, cislunar space, the Moon, asteroids, and into the solar system, the role and status of non-governmentals needs to reexamined. Certainly, activities including commercial space stations, space resource activity, development of cislunar space, and activities yet to be conjured will be involve more non-governmentals than government astronauts. Moreover, with agreements like the Artemis Accords and its successor agreements foretelling the involvement of multi-state actors performing activities in outer space, there is a need to revisit the status of non-governmentals possessing a similar legal status of astronauts and the protections that standing enjoys.

The question is how to get there from here? While international forums tend to be the default recommendation and amendment of current treaties another top-down preference, the answer may lie in a bottom-up approach in the same fashion non-governmentals achieved their legal standing under Title 51, Chapter 509. Non-governmentals will figure prominently in the next step of the evolution of outer space activities, which necessitates a new legal status be created that distinguishes personnel performing the next generation of outer space activities from government astronauts, crew, and space flight participants, and ensures these personnel will be eligible for the protections possessed by government astronauts. To that end, Congress might consider legislation to create the new legal status of “non-governmental astronaut.”

A rough draft of this bill might look like this:

Section 1: Short Title

This act may be cited as the Non-Governmental Astronaut Act.

Section 2: Purpose

Whereas international law permits the United States to authorize non-governmentals to perform outer space activities subject to continuing supervision and under the continuing jurisdiction of the United States.

Whereas legislation starting with the Commercial Space Launch Act of 1984 [Public Law 98-575] and succeeding legislation encourages and permits non-governmentals to participate in outer space activities;

Whereas Title 51, Chapter 509 facilitates non-governmental launch and re-entry activities;

Whereas non-governmentals participate in outer space activities as permitted by Title 51, Chapter 509

Whereas Title 51, Chapter 509 creates two distinct ranks of non-governmentals performing launch and reentry activities.

Whereas non-governmental activities will increase in scope beyond launch and reentry activities to include commercial activities involving non-governmental space stations and activities on the Moon and other celestial bodied, including activities permitted under Title 51, Chapter 513.

Whereas non-governmentals performing these activities will require training equal or greater to government astronauts as defined in Title 51, Chapter 509.

Whereas non-governmentals performing these activities will not have international protections afforded to government astronauts.

Whereas Title 51 Chapter 509 does not currently recognize these types of non-governmentals.

Section 3: General

a) This bill amends Title 51, Chapter 509 of the United States Code to include 51 U.S.C. § 50902(28):

“A non-governmental astronaut is a person

A. performing a non-governmental space activity licensed by the federal government, who is not government astronauts under 51 U.S.C. § 50902(4),

B. who is not space flight participants under 51 U.S.C. § 50902(20);

C. who is an employee of a licensee or transferee, or of a contractor or subcontractor of a licensee or transferee, who performs activities in the course of that employment directly relating to outer space activities including launch and reentry and activities in-between launch and reentry;

D. who receives training for outer space activities outside of launch and reentry;

E. who enjoys the protections of a government astronaut under international law.”

b. Within 360 days of the enactment of this Act, the Secretary of Transportation in coordination with the Secretary of Commerce, the Administrator of the National Aerospace and Space Administration, and the White House Office of Science Technology and Policy shall formulate and promulgate federal regulations relating to the licensing of non-governmental astronauts, including physical, psychological and training requirements.

c. Within 120 days of the enactment of this Act, the Secretary of State shall in coordination with the Secretary of Transportation, the Secretary of Commerce, the Administrator of the National Aeronautics and Space Administration, the Director of National Intelligence and the Secretary of Defense shall provide {either the Senate Commerce Committee or the House Science and Technology Committee} with a report on any aspects or considerations relating to non-governmental astronauts as it affects the national interests and national security of the United States.

Section 4: Diplomatic Efforts

a. Immediately upon the enactment of this Act, the Secretary of State in coordination with the Secretary of Transportation and the Administrator of the National Aeronautics and Space Administration shall engage international partners beginning with the partners of the International Space Station and signatories of the Artemis Accords to negotiate the recognition of the legal status of non-governmental astronauts.

b. The Office of the President of the United States through diplomatic channels shall negotiate a non-binding, supplementary agreement with the members of the Artemis Accords to recognize the legal status of non-governmental astronauts, including protections of astronauts under international law. In doing so, the United States, as signatory to the Artemis Accords shall grant reciprocal recognition of the legal status of similar non-governmental personnel from other signatories of the Artemis Accords.

c. The Secretary of State shall simultaneously engage with the broader international community, including utilizing the United States’ seat on the Committee on the Peaceful Uses of Outer Space to promote and support the legal status of non-governmental astronauts.

Section 5: Funding

Within 30 days of the enactment of this Act the Secretary of State, the Secretary of Transportation and the Administrator of the National Aeronautics and Space Administration shall provide {respective Senate and House Appropriations Committees}an estimate and request for supplementary appropriations for the funding necessary to implement the requirements of this Act.

The above draft of the Non-Governmental Astronaut Act is simple but articulates the reasons for and the steps to be taken to create the legal status of non-governmental astronaut. Furthermore, the nature of the Artemis Accords as a framework building on the Outer Space Treaty is a suitable mechanism to introduce and gain acceptance for non-governmental astronauts first among the signatories of the Artemis Accords and then wider acceptance among the broader international community. “Easier said than done” is a fitting euphemism for outer space in general and this effort in particular, but gaining acceptance starts with solid domestic legislation as the springboard.

Conclusion

The idea of what constitutes “astronaut” has progressed since the term was first introduced before the age of outer space activities to the present, where the term has legal significance. Indeed, non-governmental space activities will expand not only in frequency but scope. That said, the definition of astronaut or at least the protections afforded to astronauts must be taken into account for non-governmentals. There will be pushback from states that do not support non-governmental outer space activities; however, pushing through and supplementing the current legal standing for non-governmentals will not only facilitate an expansion of human activity throughout the solar system but also strengthen the jurisprudence of international space law. There will always be a place for government astronauts, but outer space is no longer their province alone. Recognizing the contributions of non-governmentals have calls for ensuring they have the protections afforded to their governmental colleagues.

Endnotes

1. “Astronaut.” Merriam-Webster.com Dictionary, Merriam-Webster. Accessed 3 Aug. 2021.
2. Ibid.
3. “States Parties to the Treaty shall regard astronauts as envoys of mankind…” Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. v, 18 UST 2410 (1967). See also Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Space Objects Launched into Outer Space, art. i-5, Apr. 22, 1968, 672 U.N.T.S.119 [hereinafter the Rescue Agreement] (outlines the duties of States towards the rescue and return of astronauts).
4. The author wrote a blog post dealing with the issue of the test for “astronaut” and discusses the three tests. See Listner, Michael, “The Interaction of the Definition of Astronaut and International Law”, Space Thoughts, November 24, 2015.
5. Outer Space Treaty, art. v. See also Rescue Agreement, art. i-v.
6. Hashimoto, Yasuaki, “The Status of Astronauts Towards the Second Generation of Space Law,” American Institute of Astronautics, 1993.
7. See Outer Space Treaty, art. vi.
8. 51 U.S.C. § 50902(2)
9. 51 U.S.C. § 50902(20)
10. 51 U.S.C. § 50902(4)
11. The Crew-1 and Crew-2 launch of the Space X Crew Dragon is distinguished from the Virgin Galactic and Blue Origin flights as it carried NASA astronauts, who were considered “government astronauts” under federal law. See 51 U.S.C. § 50902(4).
12. Outer Space Treaty, art. v, para. 1.
13. Blue Origin’s launch license can be accessed here.
14. Virgin Galactic’s license can be accessed here.
15. The media in some cases has labeled the personnel on New Shepard, particularly Jeff Bezos and Wally Funk, as crew. The distinction between crew and space flight participant lies in whether either met the litany of training requirements for crew in 14 CFR § 460.5 compared with the relative short list of training requirements for space flight participants found in 14 CFR § 460.51.
16. Considering this flight will be orbital, the personnel will certainly need more training, including that found in 14 CFR 460.5. More to the point, it is unclear whether the FAA has cleared the Crew Dragon for space flight participants.
17. 51 U.S.C. § 50902(2)
18. It is the understanding of the author, these “private astronauts” have negotiated agreements with NASA that likely covers issues such as liability and other legal protections.
19. The FAA first awarded Commercial Astronaut Wings in 2004 to test pilots Mike Melvill and Brian Binnie of Scaled Composites who both separately flew Spaceship One. Since then, five other crew from Space Ship Two, including a payload specialist, that flew as part of the test program have received Commercial Astronaut Wings.
20. Federal Aviation Administration: Fact Sheet- Commercial Space Transportation Activities, June 19, 2020.
21. The FAA recognizes 50-statute miles as the demarcation for space. This is ten miles short of the 60-statute mile boundary recognized as the proposed legal boundary for space under the spatial approach for delimitation of the atmosphere and outer space. A good article discussing the FAA 50-statute mile boundary can be found here.
22. FAA Commercial Astronaut Wings Program, Order No. 8800.2, July 20, 2021.
23. It’s probably not a coincidence the FAA amended this program on the day New Shepard launched as it gives the FAA the opportunity to present Honorary Astronaut Wings to Wally Funk, who was a spaceflight participant on New Shepard, in recognition of her contributions to the Mercury Program.
24. Again, this presumes none of the personnel received crew training under 14 CFR § 460.5 or operated the New Shepard.

Michael J. Listner is an attorney and the founder and principal of Space Law and Policy Solutions and the author and editor of the space law and policy briefing letter The Précis.

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