"Lost in Space: Navigating Human Rights in the Exosphere"

Taking a page from the recent events, where astronauts Sunita Williams and Butch Wilmore are reportedly stranded in space due to certain issues in the Boeing Starliner, “ideally, space law would impose a duty to rescue whenever anyone aboard a spacecraft experiences distress, whether on the ground, in space, or on a celestial body.” However, on a close inspection of the relevant space law treaties, the basic human right of life ensuring safe rescue and return of astronauts seems in jeopardy.

Outer Space Treaty and Rescue Agreement

Beginning at parent treaty on space exploration i.e., ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies’ of 1966 or briefly, the Outer Space Treaty. Under Article 5, State Parties have an obligation similar to that in the Rescue Agreement, which is to provide “all possible assistance to astronauts in the event of accident, distress, or emergency landing on the territory of another State Party on the high seas.” Further obligation extends to “informing the other State Parties to the Treaty or the Secretary-General of the United Nations of any phenomenon they discover in outer space, which could constitute a danger to life or health of astronauts.”

Further, from the ‘Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space’ an indication of collective international responsibility is provided under Article 2 and 3, which are closely interlinked, and provide that Contracting Parties have an obligation to extend their assistance in the rescue of personnel of a spacecraft, when they have landed on such Contracting Party’s territory or “on the high seas or any other place not under the jurisdiction of any State”.

As regards the Article 5 of Outer Space Treaty and Articles 3 and 4 of Rescue Agreement, these provisions suffer a serious limitation. The responsibility of Contracting Parties when examined in the context of the situation suffered by Williams and Wilmore, it is apparent that these provisions are triggered by existence of an event wherein the spacecraft or the astronauts have made an unintended landing or have alighted on the territory of another Contracting State Party. In effect, this limits the assistance that can be provided to the astronauts who have not yet landed on Earth, “ruling out any duty of the Contracting Parties to rescue personnel stranded in orbit or in deep space”.  

Further, the second limb of Article 5 is substantially limited to mere obligation to inform rather than to assist. Thus, from Outer Space Treaty and Rescue Agreement, Williams and Wilmore cannot expect much comfort of other Contracting State Parties, in case NASA is unable to get the crew aboard ISS, to return in due time.

Moon Agreement

Another important space law treaty as regards exploration is ‘Agreement Governing the Activities of States on the Moon and Other Celestial Bodies’ i.e., the Moon Agreement. Article 10 of Moon Agreement establishes a broader responsibility for ensuring safety of “life and health of ‘persons’ on the moon” i.e., it is applicable to all persons on the moon and the same are deemed an ‘astronaut’ under this provision. The Article additionally provides for “State Parties to offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the moon.” Thus, the implication herein is that the Contracting States have an obligation to ensure that their assistance is not only limited to situations as provided under the Rescue Agreement but also when the astronauts are stranded on the moon. However, as is clear from the language of the Article as well as the broader scope of the Moon Agreement, its applicability is limited to persons ‘on the moon or other celestial bodies’. Regrettably, International Space Station does not qualify as either and therefore this broad protection of life in the space cannot be afforded to Williams and Wilmore.

The Responsibility of Launching State

From an examination of the above-mentioned treaties, it is indicated that for an astronaut stranded aboard the International Space Station or in the deep space not being on a celestial body, International Space Law does not offer much aid. Therefore, the USA, i.e. the launching State constitutes the sole reference frame for the two astronauts, Williams and Wilmore.

Playing a pivotal role hereon, deconstructing USA’s responsibility as the launching State, not much is established by the above treaties. Any semblance of a responsibility could be culled out from Article 8 of the Outer Space Treaty providing for “jurisdiction and control over a space object and personnel therein can be exercised by a launching State only.” The term ‘jurisdiction and control’ essentially represents “an aspect of sovereignty and incorporate the rights and powers to exercise legislative, judicial and administrative authority towards personnel and objects in outer space, including on celestial bodies”. While this provision as it stands, deals with the “international responsibility for national activities and continuing supervision by the appropriate State Party”, it can be argued to be considered broadly, wherein under the jurisdiction and control of the launching State, the State is obligated to ensure protection of rights such as of life including safe rescue and return of personnel launched, and an imperative right of health and safety from occupational hazards, as provided in the domestic framework of the launching State. As such, though not directly bringing out this responsibility, USA as the launching State still has an obligation towards Williams and Wilmore, as its nationals and thus under USA’s direct jurisdiction and control, to be safely returned from ISS.

Conclusion

From the analysis of relevant space treaties, web of superficial diplomatic obligations providing an insubstantial duty to assist is disturbing. Furthermore, the right to life or of health of astronauts is not specifically delineated either leaving a lot of the launching State’s sovereignty to do as they please with the envoys of mankind. This position calls for change and to address the requirement of a rights-based treaty. The need for a lex specialis governing human rights in outer space has been indicated as an intended path, but understanding the effect of further fragmentation and treaty fatigue, sequential progression can be made by extending other human rights obligations into outer space treaties, thus inculcating these duties of the States to ensure safety of astronauts in space missions covering pre-launch, stay and return. Through an increased interaction of the General Assembly and the COPUOS translated into General Comments on relevant human rights treaties extending to obligations in the outer space, institutionally we can move forward to a position of safety and security of astronauts in all circumstances. 

Author: Vanshika Gupta