About the author: Rohit Gupta is a final-year law student at the West Bengal National University of Juridical Sciences, Kolkata. Any discussion or lessons extracted from an analysis of Russian laws hereunder should not be taken as any form of condonation or support for Russia's aggressive war in Ukraine.
Image by "verybadcow" available here.
Introduction
On December 28, 1973, a space crew aboard the American Skylab 4 declared a “one-day sit-down” strike while in orbit. Staged as a work slowdown, the strike incited widespread concern regarding labor regulation and fair treatment from amongst the most unconventional industrial settings.
Skylab 4, the three-man crew, had expressed its inability to sustain the workload threshold established by their predecessors while operating the mission. Their work involved a long and hectic schedule without relaxation. On complaining, the crew received demands of increase in efficiency, even though the previous crew, now on ground, sided with Skylab 4, affirming the unreasonableness of the workload. Eventually, on December 28, 1973, six weeks into their mission, the crew turned off all radio communications with ground control. After coming back online, National Aeronautics and Space Administration (NASA) communicated with the crew with an amenable attitude, granting it time to avail full resting periods and meal breaks. NASA also replaced the crew’s minute-by-minute schedule with a list of tasks, asking the crew to manage its own time within deadlines. While the mission went smoothly after the changes, upon returning, none of the crew members were ever assigned to another space mission again.
Although the said incident was not the first time that a spaceflight crew refused to obey ground control orders and halted the performance of tasks, none of the other incidents arose from the crew’s unmet demands of reducing the overwhelming workload.
Several questions relating to fair and equitable labor rights arise concerning the work and employment conditions for astronauts and other space personnel. For example, should astronauts be classified as employees, public servants, or military personnel following military mandates? Are astronauts even allowed to strike? What of those astronauts who are sent for entirely private-funded space missions by commercial spacefaring corporations? This post is an effort to initiate a conversation on the labor law protections that astronauts must have access to. It does so by looking at currently active protections and charting out positive measures to address the lacuna.
Nature of Employment for Astronauts and Other Space Personnel
Astronauts have been universally known as “envoys of mankind,” responsible for conducting space activities “for the benefit and in the interests of all countries,” as opposed to merely being employed for private profiteering. Commercial astronauts, individuals trained to command, pilot, or serve as crew members of privately funded spacecrafts, have been recognized as a separate class, termed as ‘personnel of a spacecraft.’ It remains unclear, however, whether the ‘envoy’ label is attractive to all those who venture into space, regardless of whether they rely on public or private funding.
Article VI of the 1967 Outer Space Treaty, the magna carta of international space law, states that States shall be internationally responsible for all “national activities” in outer space, including those conducted on the Moon and other celestial bodies. While ‘national activities’ have been treated as including both governmental and non-governmental activities, the Treaty itself does not define the term.
Must we treat all astronauts and space personnel, regardless of whether private corporations employ them, as federal employees? The ‘Frequently Asked Questions’ page on the NASA website made a distinction between civilian and military astronauts in that all civilian astronauts are federal employees. It is unclear, however, whether astronauts employed for entirely privately-funded missions would continue to qualify as federal employees, or whether NASA would consider them as ordinary private employees. On the other hand, military astronauts are detailed to NASA for a specified tour of duty, or to the United States Space Force and receive military pay, benefits, and leave while remaining in active duty.
Since there is no clear interpretative guidance or jurisprudential knowledge to support a further conclusion, it is wiser to assume maximum protections for both astronauts and space personnel and to analyze the adequacy of these safeguards from a labor law standpoint.
International Basic Minimum Safeguards for an Outer Space Workplace
The 1968 Rescue and Return Agreement is the only international document with express rights and obligations attached to the status of astronauts and other space personnel. This contains an obligation to (1) notify information about an astronaut or a space personnel having experienced an accident, distress, emergency, or unintended landing, (2) immediately take all possible steps to rescue said personnel, and (3) to promptly return said personnel to representatives of the launching State.
None of these provisions, however, concern the labor or employment conditions of astronauts and other space personnel. The most comprehensive manifestation of a right to health appears in Article 12 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Its drafting history clearly states that Article 12 includes a right to a safe and healthy working environment, including the availability of functioning health-care for both physical and mental ailments. For astronauts, this may include establishing measures against occupational accidents and diseases, protection against harmful radiation, etc. The issue lies in the inclusion of the phrase “as far as reasonably practicable,” which allows States to circumvent ordinary standards of workplace conditions. Eventually, facilities such as gyms or other recreational facilities necessary for destressing may be negotiated off the table.
Founded in 1919, the International Labor Organization (‘ILO’) has identified eight fundamental conventions and four fundamental principles in furtherance of a bona fide discharge of the mandate of the ILO’s Constitution. The principles include: (1) freedom of association and the right to collective bargaining, (2) the elimination of all forms of forced or compulsory labor, (3) the abolition of child labor, and (4) the elimination of discrimination in respect of employment and occupation. Inter alia, the ILO, in conjunction with the International Labor Conference, has also attempted to set new fundamental standards centered around: (1) social security, including essential healthcare, security for children, income security, and (2) violence and harassment in the workplace. Thus, while Member States are free to legislate according to their own national policies and mandates, all employees across industries, including astronauts and other space personnel, must benefit from the above mentioned minimum standards.
Supplementary National Space Legislation: The Russian Labor Regulations for Space Personnel
As prescribed under Article VIII of the 1967 Outer Space Treaty and Article II of the 1975 Registration Convention, the national legislation enacted by States remains applicable to the individual crew members during their stay in space, aboard the International Space Station, or on the Moon or other celestial bodies. This note embarks on a case study of the national legislative landscape of Russia, which hosts the first and oldest space exploration program.
Russian cosmonauts are designated employees of the Roscosmos State Corporation for Space Activities, a state-owned corporation. The Labor Code of the Russian Federation applies to all employment situations regardless of the employers’ organizational and legal status or ownership. Section X of the Russian Labor Code not only includes the right of employees to fair working conditions, the right to a hygienic workplace, and the right to leisure, but also prioritizes employees’ health and obligates best practices for improving working conditions (Articles 2, 210). It also obligates employers to ensure safety conditions and labor protections, such as surveillance and medical examination (Articles 211–213). Special technical requirements relating to permissible radiation, vibration, noise, and other emergency situations are imperative for employees working in environments exposed to high amounts of ionizing radiation. Articles 227–231 also prescribe a detailed procedure for reporting and investigation of workplace accidents, with provisions for determining liability and apportioning compensation. Unfortunately, the Code only recognizes bodily harm, as opposed to harm to mental health, in the context of accidents.
In 1995, the government issued an official standard GOST R 50804-95 entitled ‘Cosmonaut’s Habitable Environments on Board of Manned Spacecraft: General Medicotechnical Requirements’ to fill in pre-existing gaps. Chapter VIII of the GOST includes preventive measures to the adverse effects of weightlessness, for example, making the mission’s duration indicative of proper applicable preventive measures, including considerations of the weightlessness effects during crew selection phases, and organizing physical trainings. The GOST also includes the most concrete regulations on mental health protection for spacecraft personnel, requiring mission planning procedures to include mental health concerns, including sensitivity to the crews’ schedule, allowing “time off”, training crewmembers in self-monitoring, and providing external sources of mental stimulation. Alas, the GOST remains merely a governmental standard which is not directly justiciable.
Development of a New Outer Space Labor Law Principle
In the face of an acute lack of an international outer space law regime regulating labor conditions, the international community must enact a new principle obligating launching authorities to provide services and facilities necessary for sustaining the minimum labor safeguards of spacecraft personnel before launching, while the spacecraft carries personnel, and after the spacecraft personnel return to Earth. In keeping with the vagueness of the 1967 Outer Space Treaty, the principle should accomplish two goals. Firstly, it should be mandatory for state parties to develop health regulation or policies, thus establishing a more uniform international approach. Secondly, it should allow States to implement such health regulations at an appropriate level, making it possible for States like the United States to delegate the policy-making duty to the national space agency, or for a state not on the forefront of space exploration to create a national policy.