The Rescue Agreement of 1968

The Rescue Agreement of 1968, or Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, the second treaty on outer space drafted in the bosom of the United Nations Committee on the Peaceful Uses of Outer Space, was adopted by a vote of 115-0 on December 19, 1967, opened for signature at Washington, London and Moscow on April 22, 1968, and entered into force on December 3, 1968. As of January 2019, ninety-eight States have ratified the Rescue Agreement of 1968.

The Rescue Agreement was considered and negotiated by the Legal Subcommittee of COPUOS from 1962 to 1967. Consensus agreement was reached in the General Assembly in 1967 through Resolution 2345 (XXII). Consideration of the problems treated in the Assistance and Return Agreement has paralleled the Space Age. Elaborating on elements of articles V and VIII of the Outer Space Treaty (1967), the Rescue Agreement of 1968 provides that States shall take all possible steps to rescue and assist astronauts in distress and promptly return them to the Launching State, and that States shall, upon request, provide assistance to Launching States in recovering space objects that return to Earth outside the territory of the Launching State.

The history of the Rescue Agreement started shortly after the beginning of the Space Age, with a 1959 Report of the Committee on the Peaceful Uses of Outer Space: “Problems of re-entry and landing of space vehicles will exist both with respect to unmanned space vehicles and later with respect to manned vehicles of exploration. Recognizing that landing may occur through accident, mistake or distress, members of the committee called attention to the desirability of the conclusion of multilateral agreements concerning re-entry and landing. Among the subjects that might be covered by such agreements would be the return to the launching state of the vehicle itself and – in the case of a manned vehicle – provision for the speedy return of personnel”. The Declaration of Principles of 1963 would then soon come to be recognized as binding customary international law. Then, the Rescue Agreement of 1968 would be adopted shortly after the Outer Space Treaty had entered into force in 1967.

The Outer Space Treaty of 1967

The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, could be viewed as furnishing a general legal basis for the peaceful uses of outer space and providing a framework for the developing law of outer space. The four other treaties may be said to deal specifically with certain concepts included in the 1967 Treaty.

Article V states that “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle. In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts”.

Article VIII enounces that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”.

What is an astronaut?

An astronaut could be described as a person who travels beyond Earth’s atmosphere, or a trainee for spaceflight. According to the Cambridge Dictionary, an astronaut is “a person who has been trained for travelling in space”. It is interesting to notice that, without going into details about the different terms used to refer to any person flying in a space object, there are already differences on the conception of the term astronaut. It can either be someone travelling beyond Earth’s atmosphere or someone training to travel beyond Earth’s atmosphere. Considering the fact that the frontier between Earth’s atmosphere and outer space is still subject to debate, what could be the term used to refer to someone flying on suborbital flights? Could we call any human flying on a space object an astronaut? We would therefore need to define, what some national space laws already do, at an international level, what is a space object.

According to which country the person flying/travelling to outer space or training to do so is, terms change. This originality of language, even though we are today witnessing a terminological neutralization echoing the international relationships’ gradual smoothing, especially between the United States of America and former URSS, illustrates the highly geopolitical, spatiopolitical and historical aspects of space conquest. Let’s not forget that Space Age started during the International Geophysical Year not as any scientific project but as a demonstration of strength by the superpowers of the time, and soon after continued as a military project (US military space’s budget is today still at least twice that of the civilian budget). Depending upon which space object or spacecraft the person will fly/travel on, different names will be used. The United States of America use the term astronaut. Former URSS and today’s Russia use the term cosmonaut. Europe uses the term spationaut. China uses the term taikonaut. India uses the term vyomanaut. Some African artists and politics have used the term afronaut. Some private companies have proposed the term touronaut to define a space tourist. After the flights of Valentina Tereshkova (URSS), Sally Ride (United States of America) or Claudie Haigneré (France), the terms cosmonette, astronette and spationette were proposed. We sometimes also find the words robonaut, moonnaut or lunanaut/lunarnaut, and bionaut (those working in the American Earth system science research facility located in Oracle, Arizona).

The Rescue Agreement of 1968

The Rescue Agreement may have predominantly reflected the interests of the two superpowers at the time, being the only states able to bring man into space, and thus the only two concerned with the welfare of astronauts. But, by incorporating the handling of space objects upon their return to Earth, it assumed the interests of a handful of other states that had already developed their own launch capabilities.

Articles 1 through 4 of the Rescue Agreement, in other words the bulk of its substantive operative provisions, are dedicated to the obligations of states to assist personnel of a spacecraft in relevant cases. The first thing to be noted here is that the reference to assistance by astronauts of one state to astronauts of other states in outer space under the second paragraph of Article V of the Outer Space Treaty does not reappear in the Rescue Agreement. Articles 1 through 4 of the Rescue Agreement exclusively concern terrestrial events. Upon closer inspection, we can further subdivide the terrestrial areas described in these articles. Where Articles 1 and 4 impose obligations of global scope on signatories, Articles 2 and 3 impose obligations on signatories that are limited by geographical area, and mutually exclusive in their application.

The notifying process

Article 1, which was one of the least controversial article and reflects the essential humanitarian purpose of the Rescue Agreement, states that “Each Contracting Party which receives information or discovers that the personnel of a spacecraft have suffered accident or are experiencing conditions of distress or have made an emergency or unintended landing in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State shall immediately: (a) Notify the launching authority or, if it cannot identify and immediately communicate with the launching authority, immediately make a public announcement by all appropriate means of communication at its disposal; (b) Notify the Secretary-General of the United Nations, who should disseminate the information without delay by all appropriate means of communication at his disposal”.

This article constitutes an important addition to the related provisions of Article V of the Outer Space Treaty. Although the duty to notify might be implied from the duty to render assistance under the Outer Space Treaty, notification under Article 1 of the Assistance and Return Agreement is expressly prescribed as a duty antecedent to or contemporaneous with the duty to assist astronauts under Articles 2 or 3.

The rescuing process

Article 2 enounces that “If, owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party, it shall immediately take all possible steps to rescue them and render them all necessary assistance. It shall inform the launching authority and also the Secretary-General of the United Nations of the steps it is taking and of their progress. If assistance by the launching authority would help to effect a prompt rescue or would contribute substantially to the effectiveness of search and rescue operations, the launching authority shall cooperate with the Contracting Party with a view to the effective conduct of search and rescue operations. Such operations shall be subject to the direction and control of the Contracting Party, which shall act in close and continuing consultation with the launching authority”.

The controversy over this article arose out of the sensibilities of states which would be required to take “all possible steps” to rescue persons who have landed in their respective territories without their consent, and impliedly to permit representatives of the launching authority to enter if their assistance “would contribute substantially to the effectiveness of search and rescue operations”.

The extended assistance

Article 3 declares that “If information is received or it is discovered that the personnel of a spacecraft have alighted on the high seas or in any other place not under the jurisdiction of any State, those Contracting Parties which are in a position to do so shall, if necessary, extend assistance in search and rescue operations for such personnel to assure their speedy rescue. They shall inform the launching authority and the Secretary-General of the United Nations of the steps they are taking and of their progress”.

Article 3 provides for the rescue of the personnel of a spacecraft who have “alighted” on the high seas or in any other place not under the jurisdiction of any state. Thus, in addition to calling for the rescue of astronauts who have landed on the high seas, as provided for in Article V of the Outer Space Treaty, Article 3 would require that rescue operations be undertaken where a landing has been made on the Moon or other celestial bodies, or on any land area of the Earth’s surface not under the jurisdiction of any state, such as Antarctica.

The safe and prompt return

Article 4 affirms that “If, owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party or have been found on the high seas or in any other place not under the jurisdiction of any State, they shall be safely and promptly returned to representatives of the launching authority”.

Article 4 imposes an unconditional obligation to return the personnel of a spacecraft whose landing on the territory of a Contracting Party or outside the jurisdiction of any state is unintended or due to accident, distress, or emergency.

Space objects and their component parts

In the Rescue Agreement, only Article 5 deals with the issue of space objects that have suffered an unfortunate and unintended accident, and as a consequence have landed, either in whole or in parts, somewhere on Earth. Article 5 states that “1. Each Contracting Party which receives information or discovers that a space object or its component parts has returned to Earth in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State, shall notify the launching authority and the Secretary-General of the United Nations. 2. Each Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts. 3. Upon request of the launching authority, objects launched into outer space or their component parts found beyond the territorial limits of the launching authority shall be returned to or held at the disposal of representatives of the launching authority, which shall, upon request, furnish identifying data prior to their return. 4. Notwithstanding paragraphs 2 and 3 of this article, a Contracting Party which has reason to believe that a space object or its component parts discovered in territory under its jurisdiction, or recovered by it elsewhere, is of a hazardous or deleterious nature may so notify the launching authority, which shall immediately take effective steps, under the direction and control of the said Contracting Party, to eliminate possible danger of harm. 5. Expenses incurred in fulfilling obligations to recover and return a space object or its component parts under paragraphs 2 and 3 of this article shall be borne by the launching authority”.

Article 5 is concerned with the return of space objects and is perhaps the most obvious example of how the Rescue Agreement has elaborated upon fundamental obligations set forth in the Outer Space Treaty. The last sentence of Article VIII of the Outer Space Treaty merely imposes a duty on parties to return space objects to the launching authority subject to the furnishing of identifying data upon request. Article 5 of the Rescue Agreement of 1968 sets forth a number of subsidiary rights and obligations.

The definition of the launching authority

The Rescue Agreement contains one key clause on definitions, illustrating its intent to move beyond general principles into the realm of clear-cut legal obligations. Article 6 enounces that “For the purposes of this Agreement, the term “launching authority” shall refer to the State responsible for launching, or, where an international intergovernmental organization is responsible for launching, that organization, provided that that organization declares its acceptance of the rights and obligations provided for in this Agreement and a majority of the States members of that organization are Contracting Parties to this Agreement and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”.

Article 6 of the Rescue Agreement of 1968 contains provisions of major substantive importance cast in the guise of a definition of “launching authority”. Under this article, a mechanism is provided through which an international organization may receive the benefits and incur the obligations of the Agreement, to the extent applicable to the activities of international organizations.

This definition of “launching authority”, through the inclusion of intergovernmental organizations, is broader than the concept of the “launching State” which rules the application of both the Liability Convention and the Registration Convention. However, that difference in scope is largely negated by the possibility for intergovernmental organizations to be equated to states under their respective regimes. In this respect, the Rescue Agreement was the first of its kind, not only in space law, but also from a broader perspective. This unique trait of space law testified to the special role intergovernmental organisations were destined to play in the human adventure in outer space.

Legal technical aspects

The final clauses in the Agreement duplicate those in the Outer Space Treaty. Article 7 is about technical aspects concerning the Agreement (open to all States for signature, subject to ratification by signatory States…). Article 8 concerns the “amendments to this Agreement”. Article 9 deals with “withdrawal from the Agreement”. Article 10, the last article, expresses that “This Agreement, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Agreement shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States”.

Conclusion on the Rescue Agreement of 1968

The relevance of any international treaty is not only measured by the rationality, coherence and scope of its terms, but by the extent to which it is actually implemented. Implementation in the context of international treaties refers to both implementation in law, that is by national states in their domestic jurisdictions, and implementation in fact, that is being invoked with respect to actual events, situations or disputes. The Rescue Agreement of 1968 now reflects a wide consensus of views on the procedures that should be considered applicable to the rescue of astronauts, the return of astronauts, and the return of space, objects.