• Thomas Cheney

50 Years of the Rescue Agreement

Updated: Mar 25, 2019


3 December 2018 marks the 50th anniversary of the entry into force of the ‘Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.’ Given the changes in the space sector over this half century it is sensible to take stock and assess the continued appropriateness this treaty. While considering the provisions of the ‘Rescue Agreement’[1] it is also necessary to examine Article V of the Outer Space Treaty (OST)[2] and the concept of ‘astronaut’ found within it. This post will also look at the implications of commercial human spaceflight and longer-term implications of endeavours such as the settlement and colonisation of ‘outer space, the Moon and other celestial bodies.’


The Rescue Agreement


The Rescue Agreement is the second of the five main United Nations space treaties and entered into force just over a year after the Outer Space Treaty. It expands upon the provisions of Article V of the Outer Space Treaty which requires that States render assistance to astronauts in distress whether they are in space or the surface of the Earth. Neither the Outer Space Treaty nor the Rescue Agreement provide a definition of the term ‘astronaut’, in fact, the Rescue Agreement prefers to use the phrase ‘personnel of a spacecraft’, although it also fails to define that phrase. Furthermore, the Rescue Agreement does not include the phrase ‘envoys of mankind,’ that is only found in Article V of the Outer Space Treaty. While it may be frustrating for there to be a lack of definitions of these key terms in the Outer Space Treaty and the Rescue Agreement it does allow for flexibility in the application of the treaties as it avoids the issue of too precise a definition not being able to take into account future developments (such as payload specialists, a role ‘invented’ for the US Space Shuttle). It is also worth noting that the Rescue Agreement includes provisions for the return of space objects, and it is these provisions, not the provisions requiring assistance to astronauts, which have been utilized.[3] The exact relationship between the Rescue Agreement and Article V OST is unclear; however, as a general rule of international law the later treaty prevails in case of an inconsistency.[4]


Return Agreement


While often abbreviated as the Rescue Agreement or the Astronauts Agreement the treaty also covers the return of space objects. While the provisions relating to the rescue or assistance of astronauts in distress have never been used, the provisions regarding the return of space objects have been utilized on several occasions.[5] The key difference with the return of space objects as opposed to the rescue of astronauts is that the State that serves as the launching authority is required to cover the expenses incurred in fulfilling the obligations under Article 5 of the Rescue Agreement. As is the case with all of the space treaties, non-governmental space activity is not really dealt with by the treaty itself. However, given that States have an obligation under Article VI of the Outer Space Treaty to supervise the space activities conducted by their nationals and they retain ‘jurisdiction and control’ over the space objects launched by private operators[6] it follows that non-governmental space objects can also enjoy the rights afforded by Article V of the Rescue Agreement. However, it would seem sensible for States to require compensation by the private parties for the restitution they have to afford to the State who undertakes the return of the space object, but that is a matter for national legislation, not international law.


‘Astronaut’ and ‘Personnel of a Spacecraft’


Neither the Outer Space Treaty nor the Rescue Agreement define the term ‘astronaut,’ and indeed the Rescue Agreement uses the term ‘personnel of a spacecraft’ instead, which is also not explicitly defined. Owing to the lack of definition provided by the treaties themselves, Article 31 of the Vienna Convention on the Law of Treaties requires that treaty terms “be interpreted in good faith in accordance with their ordinary meaning” in line with the object and purpose of the treaty. Therefore, in considering the meaning of the terms ‘astronaut’ and ‘personnel of a spacecraft’ it is sensible to look at the dictionary definitions of those terms as well as their use in other areas of similar activity, the general understanding of those terms, and their use in legislation and international agreements. Furthermore, while the Cologne Commentary regards the terms ‘personnel of a spacecraft’ and ‘astronaut’ as being virtually identical,[7] and it is reasonable to do so, it is worth examining whether there is indeed any difference, and if so, what might that be and what might that mean.


As for dictionary definitions, at the very least a guide to the ‘ordinary meaning’ of terms, the Concise Oxford English Dictionary defines ‘astronaut’ as a ‘person trained to travel in a spacecraft’[8] and ‘personnel’ as ‘people employed in an organization or engaged in an organized undertaking’[9] A good faith interpretation of these terms “in accordance with their ordinary meaning” could therefore suggest that they are referring to ‘crew’ i.e. persons who have official duties and responsibilities involved with the operation of the vehicle. This would exclude persons such as ‘space tourists’ and ‘passengers.’ Therefore, it would be reasonable to take the view that the terms ‘astronaut’ and ‘personnel of a spacecraft’ “may thus be understood to cover all persons who undertake an activity on board a spacecraft which is relevant to the accomplishment of the mission.”[10]


The issue of humans in space who are not ‘crew’ was not really considered at time of the drafting of the Rescue Agreement. The Skylab agreement was the first time it was considered, and this was for scientific personnel aboard the US Space Shuttle. The International Space Station governance agreements also have provisions for non-crew, including ‘private persons’ such as ‘space tourist’ Dennis Tito, under the ‘spaceflight participant’ title. They are not ‘crew’ members in the strictest sense although they do receive formal training but it does make a distinction between them and ‘passengers’ who wouldn’t expect much more than a standard aviation safety briefing.[11]

The term ‘personnel of spacecraft’ also appears in the Moon Agreement.[12] Its use in the Moon Agreement is “broad and encompasses any human being, whether professional or private person who has landed on the Moon.”[13] The term ‘personnel’ is also used in Article VIII of the Outer Space Treaty and its use here and throughout the various space treaties could provide support for taking the broader definition for the terms ‘astronaut’ and ‘personnel of a spacecraft’.[14]

It is worth looking beyond the confines of space law to analogous regimes. Air law, for example, divides persons into two categories: crew and passengers. Crew are licenced professionals subject to strict regulation. Air law also allows for a distinction between the commander and the rest of the crew. Passengers, by contrast, are afforded protections by the relevant rules regarding transport of passengers and have no operational or mission duties, or responsibilities.[15] While international space law does not create any kind of distinction between persons on board a space object, national legislation does as do instruments like the ISS governance agreements. The Soviets had three categories of persons aboard a space object: commander, flight engineer and researcher. The US space programme has commander, pilot, mission specialist and payload specialist[16] and their legislation of 2004 codified the term ‘spaceflight participant’[17] although that term had been coined earlier.[18] However, all of these people have had a mission and tasks. Even in the case of ‘space tourists’ like Tito their flights have been on board governmentally operated, controlled, and owned space objects. Commercial human spaceflight will introduce novel issues especially relating to ‘passengers’ and ‘tourists.’


Commercial Spaceflight


Commercial spaceflight raises several potential issues. The first issue already briefly touched upon above is the applicability of Article 5 of the Rescue Agreement to non-governmental space objects. However, the main bulk of the issue focuses on the applicability of the term ‘astronaut’ and ‘personnel of a spacecraft’ to those undertaking private and/or commercial human spaceflight as well as the suitability of either concept and the Rescue Agreement itself in the long-term consideration of human activity in outer space, specifically colonization efforts. The question of the definition of an astronaut and its applicability to non-governmental spacefarers essentially breaks down into two issues. First, does the term apply to non-governmental spacefarers and second, should it and more to the point should it apply to them all.

To deal with the first point it is worth reconsidering the discussion above. While the ‘ordinary meaning’ of the term ‘astronaut’ does imply a ‘trained’ ‘crew member’ it is also necessary to bear in mind the ‘object and purpose’ of the treaties, which in the case of the Outer Space Treaty is, based on the preamble and its provisions, at least partly, to facilitate the exploration and use of outer space in the common interests of humanity and for the benefit of all peoples and for the Rescue Agreement is to promote international cooperation prompted by sentiments of humanity. Therefore, there is surely a strong case to be made that all spacefarers should be entitled to the general protection and assistance afforded by Article V of the Outer Space Treaty and the Rescue Agreement. Furthermore, while the practice so far has been limited, private spacefarers have been treated as ‘astronauts’ by international space law even if national legislation or intergovernmental agreements have classified them as ‘spaceflight participants’, not that this has been tested with regards to the provisions of Article V of the Outer Space Treaty or the Rescue Agreement. As for whether or not private spaceflight was foreseen or foreseeable in 1968 it is worth considering that in the film 2001, released that year, Dr Floyd was transported to the space station in Earth orbit aboard a Pan Am spaceplane. Finally, it seems hard to believe that any State, party to the Rescue Agreement or not, would refuse to render assistance to a private spacefarer if it was within their capability to do so.


The Future of the Rescue Agreement


There is little to take exception to in either the Rescue Agreement or Article V of the Outer Space Treaty. Both generally conform with basic understandings of humanitarianism towards those in peril. Nonetheless it is worth considering that the Rescue Agreement (and Article V of the Outer Space Treaty) is now fifty years old and was drafted at a time when all astronauts were highly trained government employees, therefore a re-evaluation of the specific provisions may be warranted. Furthermore, the provisions relating to astronauts have never been ‘tested.’ The Rescue Agreement reflects the technology and practice of its time and things have developed, particularly given the impending prospect of private human spaceflight; however, the fundamental principles are sound and remain valid. That said there is a “need for additional appropriate legal rules” to be developed.[19] How exactly to do this is an open question, but it is a pressing concern, whether it is SpaceX, Blue Origin, Virgin Galactic, or someone else commercial human spaceflight is on the verge of becoming a reality. If no proactive action is taken custom will establish norms, although that is not necessarily bad.


Article 8 of the Rescue Agreement allows for any State Party to propose amendments and they shall enter into force when a majority of State Parties accept the amendment, therefore amendment is something that should perhaps be seriously considered, especially as there is no provision for the reimbursement of expenses accrued during the ‘rescue’ or ‘assistance’ of ‘astronauts’ in distress. Which is reasonable enough for government/scientific endeavours but is not necessarily reasonable for private, commercial endeavours (the insurance industry exists for a reason…) At the very least a ‘code of conduct’ should be considered, indeed a ‘soft law’ approach may be the most appropriate.[20] Alternatively, a new treaty may be appropriate especially if it is part of a wider effort to develop a ‘space traffic management’ regime, although that’s unlikely to happen as treaties have somewhat gone out of fashion, especially big multilateral treaties like the existing space treaties. However, as has been noted above none of the provisions of the Rescue Agreement are particularly onerous, especially given the prevalence of general humanitarian sentiments, and as ‘envoys of mankind’ is a largely symbolic phrase, it perhaps does not matter if tourists, asteroid miners and settlers get to enjoy the ‘honour’ of those terms. Given that there are more pressing issue for the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space, and the space law community in general, to deal with perhaps letting developments in customary international law ‘deal’ with the ambiguities in the definitions is the best approach.


The opinions expressed in these blogs posts are those of the author and do not represent the views of the Centre for a Spacefaring Civilization or anyone else.


[1]Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (adopted 22 April 1968, entered into force 3 December 1968) 672 UNTS 119 (Rescue Agreement/ARRA)


[2]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205 (Outer Space Treaty/OST)


[3]Irmgard Marboe, Julia Neumann, Kai-Uwe Schrogl, ‘The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space” in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl and Peter Stubbe (eds.), Cologne Commentary on Space Law, vol 2 (1st edn, Carl Heymanns Verlag 2013), 10, 15


[4]Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 332 (VCLT), Art 30


[5]Irmgard Marboe, Julia Neumann, Kai-Uwe Schrogl, ‘The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space” in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl and Peter Stubbe (eds.), Cologne Commentary on Space Law, vol 2 (1st edn, Carl Heymanns Verlag 2013), 10, 15


[6]Article VIII Outer Space Treaty


[7]Irmgard Marboe, Julia Neumann, Kai-Uwe Schrogl, ‘The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space” in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl and Peter Stubbe (eds.), Cologne Commentary on Space Law, vol 2 (1st edn, Carl Heymanns Verlag 2013), 35


[8]Concise Oxford English Dictionary (12th edn, 2011) 81


[9]Ibid 1071


[10]Irmgard Marboe, Julia Neumann, Kai-Uwe Schrogl, ‘The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space” in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl and Peter Stubbe (eds.), Cologne Commentary on Space Law, vol 2 (1st edn, Carl Heymanns Verlag 2013), 42


[11]Stephan Hobe, ‘Space Tourism as a Challenge to the Astronaut Concept’in Gabriel Lafferranderie, and Sergio Marchisio (eds.), The Astronauts and Rescue Agreement: Lessons Learned (European Centre for Space Law 2011), 77-80


[12]Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 18 December 1979, entered into force 11 July 1984) 1363 UNTS 3 (Moon Agreement/MA)


[13]Irmgard Marboe, Julia Neumann, Kai-Uwe Schrogl, ‘The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space” in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl and Peter Stubbe (eds.), Cologne Commentary on Space Law, vol 2 (1st edn, Carl Heymanns Verlag 2013), 35-36


[14]Ibid, 43


[15]Gabriella Catalano Sgrosso, ‘Legal Status, Rights and Obligations of the Crew in Space’ (1998) 26 J. Space L. 163, 164-165


[16]Ibid, 167-169


[17]Commercial Space Launch Amendments Act, 49 U.S.C §70101 (2004)


[18]Frans G. von der Dunk ‘A Sleeping Beauty Awakens: The 1968 Rescue Agreement After Forty Years’ (2008) 34 J. Space L. 411, 432-433


[19]Vladimir Kopal, ‘The 1968 Rescue Agreement History of Negotiations and Their Outcome’ in Gabriel Lafferranderie, and Sergio Marchisio (eds.), The Astronauts and Rescue Agreement: Lessons Learned (European Centre for Space Law 2011), 120-121


[20]Setsuko Aoki, ‘The Function of ‘Soft Law’ in the Development of International Space Law’, in Irmgard Marboe (eds), Soft Law in Outer Space: The Function of Non-binding Norms in International Space Law (Boehlau Verlag 2012), (57-85)

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