Butch Wilmore and Suni Williams are staying busy on the International Space Station as their stay there is extended until early next year. (credit: NASA)

Starliner stranding: commercial space partnerships and international law

by Matthew Ormsbee
Monday, September 9, 2024

In low Earth orbit, where human ingenuity first meets the unforgiving vacuum of space, government and commercial actors have created a situation that tests not only technological capabilities but also the legal frameworks governing space exploration. US astronauts Suni Williams and Butch Wilmore find themselves in an unprecedented predicament aboard the International Space Station (ISS). Their planned eight-day mission, initially delayed indefinitely due to unexpected technical difficulties with Boeing’s Starliner aircraft, now stretches to an expected eight-month mission aboard the ISS. This scenario is a testament to the inherent risks of space exploration. But it also serves as a critical case study in international space law and the complexities of commercial partnerships in space operations.

The predicament of Williams and Wilmore raises several legal and policy considerations. For example, how does international law address the rescue and return of stranded astronauts, if at all? Which obligations do states and private entities have in ensuring the safety and timely return of space travelers? And perhaps most pressingly, how do we navigate the intersection of national interests, commercial capabilities, and international cooperation in the face of such challenges?

Legal authorities

To address the legal landscape relating to this situation, one turns first to the cornerstone of international space law: the 1967 Outer Space Treaty (OST).[1] This seminal treaty lays the groundwork for international cooperation in space and establishes fundamental principles for space activities. Article V of the OST is particularly relevant to the Williams-Wilmore situation. It stipulates that astronauts are regarded as “envoys of mankind” and that states shall render “all possible assistance” to astronauts in the event of accident, distress, or emergency landing.[2] This provision establishes a clear obligation for international cooperation in ensuring the safety and rescue of astronauts. Yet, the treaty’s language, while emphatic, lacks specificity on the exact nature and extent of this assistance, especially in scenarios involving commercial spacecraft and extended stays on the ISS.

Thankfully, the near-daily reports of the welfare of Williams and Wilmore, including statements from them to the media and loved ones, seem to indicate that the astronauts are disappointed but not in distress. Indeed, the astronauts’ daily routines on the ISS seem to keep them occupied and complacent as Boeing and NASA evaluated possible courses of action. A longer-than-anticipated stay on the ISS, while unintentional, falls outside the purview of a space accident under the OST. And while Boeing’s technical difficulties that render the expected return trip indefinitely delayed could be dubbed an “accident,” it is unlikely that this is the sort of mishap the OST envisioned for state assistance. Thus, absent a clear accident, case of distress, or emergency landing, the OST does not require intervention from other states.

The 1968 Rescue and Return Agreement further elaborates on the rescue and return obligations outlined in the OST.[3] This agreement requires state signatories to take all possible steps to rescue and assist astronauts in distress and promptly return them to the representatives of their launching authority.[4] However, the treaty was conceived in the Cold War era dominated by state-sponsored space missions, and does not explicitly address situations involving commercial spacecraft or extended stays on international space stations. The predicament of Williams and Wilmore does not cleanly fit into the scenarios envisioned by the OST or the Rescue and Return Agreement. The astronauts are not in immediate physical danger, nor have they made an emergency landing on Earth or another celestial body. Instead, they find themselves in a state of limbo, safely aboard the ISS but unable to return to Earth as planned due to issues with the Starliner spacecraft.

This situation highlights a potential gap in international space law. While the spirit of the OST and the Rescue and Return Agreement clearly prioritizes astronaut safety and international cooperation, the specific legal obligations in a case like this remain undefined. The international community does not seem to have a legal obligation to assist in returning Williams and Wilmore to Earth sooner than the monthslong timeline currently projected. Instead, the responsibility appears to lie solely with the US and its commercial partner Boeing.

Other authorities

Beyond the letter of the law, the US must consider the law’s intent and the broader principles of international cooperation in space exploration as well. The OST emphasizes that the exploration and use of outer space should be “carried out for the benefit and in the interests of all countries.”[5] This principle suggests that all states with the capability to assist in resolving the Starliner predicament and facilitating the astronauts’ return have at least a moral obligation to offer their support. Yet, the practical implementation of such assistance is complicated by the commercial nature of the Starliner project. Boeing, as a private company, is not directly bound by international space law like states. While the US is obligated to ensure Boeing’s compliance with space law under Article VI of the OST, the situation raises questions about the extent to which other states can or should intervene in what is essentially a commercial issue, albeit one with significant international implications.[6]

Turning to domestic law, the US Commercial Space Launch Competitiveness Act of 2015 provides some legal context for commercial space activities by the US but does not specifically address scenarios like the current Starliner delay.[7] The act aims to facilitate the growth of the commercial space industry while ensuring compliance with international obligations. However, it does not provide clear guidance on how to balance commercial interests with international obligations in cases of extended astronaut stays due to technical issues. Most importantly, the act encourages US progress in space technology with little regard for progress that moves too quickly—at its peril.

The Starliner problem also brings into focus the role of soft law in space governance. United Nations resolutions, while non-binding, can provide important guidance and reflect international consensus on space-related issues. For instance, UN General Assembly Resolution 68/74 on “Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space” encourages states to consider ways to support the sustainability of outer space activities, including through international cooperation.[8] This resolution and others like it underscores the international community’s recognition of the need for cooperative approaches to space challenges, even when not strictly mandated by treaty law.

Commercial actors and ISS governance

Additionally, the involvement of SpaceX—the most prominent commercial entity in space operations—in resolving the situation adds another layer of complexity to the legal landscape.[9] SpaceX is expected to return Williams and Wilmore to Earth in early 2025. As the largest commercial provider of rocket launches to the US government, SpaceX is once again exemplifying private-sector cooperation in addressing difficult problems in space. However, this also raises concerns about potential liability and responsibility. Under the 1972 Liability Convention, for example, states are internationally liable for damage caused by their space objects.[10] In a scenario involving multiple commercial entities, determining the allocation of liability, should it arise, could become a tangled web for all parties.

Moreover, the extended stay of Williams and Wilmore on the ISS brings into play the legal framework governing the station itself. The International Space Station Intergovernmental Agreement (IGA) establishes the legal framework for the operation of the ISS, including provisions for crew safety and emergencies.[11] While the IGA does not explicitly address scenarios like the current Starliner debacle and delay, it emphasizes the importance of cooperation among partner agencies in ensuring the safety and well-being of ISS crew members. The parties to the IGA are unlikely to redraft or amend the IGA. Therefore, careful planning to avoid unexpected visits and delays to the ISS is even more important.

The Williams-Wilmore situation also raises important policy considerations regarding US reliance on commercial partners for critical space operations. The Commercial Crew Program, under which Boeing and SpaceX were contracted to develop spacecraft for transporting astronauts to and from the ISS, was designed to reduce costs and foster innovation in the space sector.[12] However, the current predicament highlights the potential risks of this approach, particularly when technical issues arise. From a policy perspective, this situation may prompt a reevaluation of the balance between commercial partnerships and government oversight in space operations. It may lead to calls for more stringent safety regulations, enhanced backup plans, or even a partial return to government-led spacecraft development that is more risk-averse. Still, any policy changes must be carefully considered to avoid stifling the innovation and cost-effectiveness that commercial partnerships can bring to space exploration.

Conclusions

The legal and policy implications of the Williams-Wilmore dilemma extend beyond the immediate concern of their return to Earth. This case sets a precedent for how similar situations may be handled in the future, particularly as commercial space activities continue to expand. It underscores the need for clearer international guidelines on extended astronaut stays and the responsibilities of various actors—states, international organizations, and private companies—in ensuring astronaut safety and timely return. Furthermore, the Starliner problem highlights the importance of developing more comprehensive legal frameworks for commercial space activities. As private companies play an increasingly outsized role in space exploration, there is a growing need for legal clarity on issues such as liability, rescue operations, and the intersection of commercial contracts with international obligations.

The Starliner fiasco paints a complex interplay of international space law, national legislation, commercial space policy, and practical considerations of space operations. While existing legal frameworks, primarily the OST and its follow-on treaties, provide a foundation for addressing astronaut safety and international cooperation, they do not offer clear-cut solutions for this specific scenario. The situation calls for a nuanced approach that balances respect for international law, recognition of commercial realities, and a commitment to astronaut safety. It may well serve as a catalyst for the development of more comprehensive legal and policy frameworks to address the evolving landscape of space exploration, particularly as it relates to commercial partnerships and extended space missions.

As the international community watches and waits for a resolution to the Williams-Wilmore situation, this case will certainly have lasting implications for space law and policy. It underscores the need for continued international dialogue and cooperation in space matters as well as the importance of adapting our legal policy frameworks to keep pace with the rapid advancements in space technology and commercial space activities. The safe and expedient return of Williams and Wilmore must remain the paramount concern. How this is achieved, and the precedents set in the process, will shape the future of international space law and commercial space operations for years to come. Our legal and policy frameworks must evolve to ensure that the safety of astronauts and the principles of international cooperation remain at the forefront of our endeavors in the final frontier.

Footnotes

1. United Nations Office for Outer Space Affairs (UNOOSA), “The Outer Space Treaty,” UNOOSA, 2021.
2. Ibid., Art. V.
3. United Nations Office for Outer Space Affairs (UNOOSA), “The Rescue Agreement,” UNOOSA, 2021.
4. Ibid., Arts. 1-4.
5. OST, Art. I.
6. OST, Art. VI (stating in relevant part: “The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”).
7. U.S. Congress, “U.S. Commercial Space Launch Competitiveness Act” (2015).
8. United Nations General Assembly, Resolution 68/74: Recommendations on national legislation relevant to the peaceful exploration and use of outer space (2013).
9. Kenneth Chang, “NASA Extends Boeing Starliner Astronauts’ Space Station Stay to 2025”, New York Times, Aug. 24, 2024.
10. United Nations Office for Outer Space Affairs (UNOOSA), “The Liability Convention,” UNOOSA, 2021..
11. European Space Agency, International Space Station Legal Framework (1998).
12. NASA, Commercial Crew Program (2021).

Matthew Ormsbee is an Assistant Professor of Law and the Director of Space Law at the United States Air Force Academy. He earned his LL.M. in air and space law from McGill University in 2023. The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the United States Air Force Academy, the Air Force, the Department of Defense, or the US Government. PA#: USAFA-DF-2024-604.

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