To the Rescue of the Rescue Agreement

On 3 December 1968, and after half a decade of battling in negotiations, the Agreement on the Rescue of Astronauts, entered into force. The Agreement, guided by humanitarian and scientific objectives, and which further developed article IV of the Outer Space Treaty, aimed to protect the new “envoys of mankind”, astronauts that were in distress at a time were spaceflights were exclusively governmental.

In 2021, after five decades, the Rescue Agreement finds itself in a radically different context: The era of space tourism has officially kicked-off. During the year, Space X, Virgin Galactic and Blue Origin have successfully completed missions with passengers on board. More recently, Jeff Bezos has announced the names of the next Space tourists that, on December 9, are expected to join this elite club thanks to New Shepard’s 19^th mission. This means that the old conception of space as an exclusive field for governmental institutions is now obsolete and therefore, a reinterpretation of the main treaties, in order to tackle the current legal issues, is needed. This post examines how the current treaty gets to deal with the current situation and analyses whether the Rescue Agreement still serves its purpose.

The Rescue Agreement, condemned to obsolescence?

In order to verify the relevance of the Agreement to the current situation in which non-governmental spaceflights are gaining importance over the traditional ones, it is important to examine the language used in these articles. The obligation to rescue should be imposed to the contracting parties regardless the nature of the spaceflight. However, following the general trend of the space treaties, the provisions are usually drafted in a very vague and broad manner, thus contributing to a general uncertainty. The expressed purpose of the agreement is two-fold. Firstly, as its principal objective enshrined in article 5, the aim to protect “astronauts” in distress on Earth or outer space and secondly, the return of space “objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried.”

The OST, cornerstone of the Corpus Iuris Spatialis, sets out in its article V the duty to rescue that would be elaborated further on in the Rescue Agreement. This article obliges states to:

“regard astronauts as envoys of mankind and to offer assistance in the event of accident, distress, or emergency landing on the territory of another State Party or the high seas.”

Although being one of the fundamental principles of outer space law, the treaty limits its scope to the rescue of “astronauts”, which raises the question whether non-professionals, such as space tourists fit or not the definition. The Rescue Agreement supplements the obligation enshrined in the OST and seems to limit a bit more the scope of the treaty by changing the word “astronaut” for “spacecraft personnel”. It is important to note this distinction since the Moon Agreement in its article 10 (1) obliges States to “take all practicable measures to safeguard the life and health of persons on the Moon.” Consequently, the obligation to rescue is extended to all people rather than just “astronauts” or “personnel” as stated in the OST and the Rescue Agreement respectively.

Moreover, the obligation to return a space object, stipulated in article 5 of the Agreement, is a development of article VIII of the OST. This article finally deals with the rights and obligations concerning space objects, important also in the case of non-governmental spaceflights. It expands the general duty imposed by article VIII of the OST in five paragraphs in which States are obliged to: notify the launching state and the Secretary-General of the UN in case a “space object or its component parts has returned to Earth in territory under its jurisdiction” or elsewhere “not under the jurisdiction of any State”; take the necessary steps to recover the object; to return the object upon the request of the launching authority; and most importantly it imposes the obligation over launching states to reimburse the cost of the recovery to the rescuer. It is from vital importance to remark that the payment by the launching authority is only required regarding the recovery of space objects but not the rescue of personnel, since the latter is understood as a humanitarian act (P. Dembling et al at p. 657). The application of the duty to rescue and return astronauts in times of non-governmental spaceflights presents more problems since concepts like “astronaut” or “personnel” will determine the applicability of such convention to a situation that was not envisaged at the time of its conception.

New problems, old solutions

Today’s reality is different from that of 50 years and, to assess the relevance of the agreement, it needs to be interpreted taking into account the current context. The Rescue Agreement was envisioned at a time when spaceflights were exclusively governmental activities but, does the obligations developed in the Agreement apply in the time of non-governmental spaceflights? The Vienna Convention on the Law of the Treaties of 1969 could be used as a tool to interpret the provisions of the Agreement thus determining its applicability. Article 31 and 32 of the VCLT set forth the general rule on the interpretation of treaties, as treaty obligation and as codification of existing customary international law, thus applicable to the Rescue Agreement despite the ratione temporis limitation established in article 4 of the convention. Any interpretation of the terms used in the Agreement must be done in light of the VCLT.

Article 31(1) of the VCLT states that:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

From this excerpt it is important to reiterate that a term shall be interpreted taking into account its context, reflected in the text and the preamble. As purported in article 32, in case that the “ordinary meaning” of the term is ambiguous or “manifestly absurd or unreasonable”, “supplementary means of interpretation” may be applied for the sake of clarity. These rules will indeed be helpful when determining the relevance of the Agreement in this new context.

The VCLT to the rescue

If we take a look at the Rescue Agreement and the ordinary meaning of its text, there is nothing that exclude non-governmental actors from the obligations imposed in it. The key terms used in the Rescue Agreement to limit the scope of its application such as “personnel”, “space object” and “spacecraft”, cannot be interpreted as being exclusively governmental. In fact, these terms can perfectly be applied to private actors. Practice of States as established in article 31 of the VCLT is one of the different means that can be used to interpret the Agreement. The analysis of practice in the application of a treaty is an important factor for the interpretation of a treaty since it shows that there is a common understanding “of the parties as to the meaning of the treaty” (Yearbook of the ILC (1966)). As a matter of fact, despite the lack of situations in which “astronauts” or “personnel of spacecraft” had to be rescued and returned, there have been situations in which space objects that belonged to private companies were found and returned to the launching authority (A/AC.105/740 and A/AC.105/825).

Although there is no reason why only some of the provisions would apply and not the Agreement in its entirety, it is worthwhile explaining whether the duty to rescue only applies regarding crewmembers, or to private passengers as well. Unlike the Moon Agreement, which imposes the obligation to safeguard the lives of “all persons”, the Rescue Agreement uses a narrower term when it imposes the same obligation: “personnel”. The ordinary meaning of “personnel” is “a body of persons usually employed.” From this definition we can deduce that the duties of the Agreement are also applicable to non-governmental spaceflights. However, this term seems to only cover the pilot, and the crew while excluding the passengers, who are not employed and do not provide any service on board of the spacecraft.

On the other hand, the term “personnel of spacecraft” has been broadly defined encompassing all persons on board a spacecraft. Additionally, the use of the term “personnel” in the OST is relevant to determining the ordinary meaning of the term in the Rescue Agreement. The use of the term in article VIII of the OST has been broadly interpreted, including all persons on board a spacecraft and not just crewmembers (S. Hobe, Legal Aspects of Space Tourism, at p. 455).

Finally, it could be concluded that the ordinary meaning ­– according to article 31 of the VCLT– of the term “personnel” results in absurdity, if in case of an accident, a State would only rescue the crewmembers while refraining from exercising the duty to rescue the rest of the passengers. This is also reflected in general humanitarian principles of customary international law since even if they are not considered “personnel of spacecraft”, there is an obligation to render assistance. It has been shown that, in times of non-governmental spaceflights, the Rescue Agreement would also protect private companies and, above all, space tourist.