Agreement on the Rescue and Return of Astronauts and Objects Launched into Outer Space
Abstract and Keywords
The Agreement on the Rescue and Return of Astronauts and the Return of Objects Launched into Outer Space (ARRA) of 1968 deals with the obligation of states toward astronauts in distress or in emergency situations and with the obligation to return space objects. It is the second of the five United Nations space treaties, after the Outer Space Treaty (OST) of 1967 and before the Liability Convention (LIAB) of 1972. The historical development of ARRA and how this agreement reflects the needs and interests of the two important space-faring nations at the time of its entry into force, the United States and the Soviet Union, are important factors for understanding the space race. ARRA is related to the OST and regards the various obligations of states concerning rescue and assistance as well as the return of astronauts, which stand in the middle between a general humanitarian duty and political and national security considerations. The return of space objects and the question of costs of rescue and return operations are important concerns and can be compared to the situation with the law of the sea, the United Nations Convention on the Law of the Sea (UNCLOS) of 1982 and the Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea (Salvage Convention) of 1989.
ARRA has never been applied with respect to accidents or distress of astronauts or cosmonauts but several times with respect to the recovering and returning of space objects. Finally, current challenges, such as the commercialization and privatization of outer space activities need to be addressed. This includes the increased interests of private individuals to enter outer space (so-called space tourism) and the question of the application of the ARRA to suborbital flights. Many legal challenges created by technological progress can be resolved via an evolving interpretation and application of the ARRA. Yet, some issues might warrant a new legal framework.
The Agreement on the Rescue and Return of Astronauts and the Return of Objects Launched into Outer Space (ARRA) was the second treaty prepared under the auspices of the United Nations (UN) after the successful completion of the negotiations on the more general Outer Space Treaty of 1967 (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies [OST]). After its adoption in the United Nations General Assembly (UN GA), the ARRA was opened for signature as early as in 1968, due to the marked interest of the United States and the Soviet Union (Dembling & Arons, 1968, pp. 633–634; Hall, 1969, pp. 197–210). Fifty years after its adoption, the ARRA has 96 state parties, 23 additional signatures by states, and 2 international organizations (European Space Agency and European Organisation for the Exploitation of Meteorological Satellites) have declared their acceptance of the rights and obligations designated by the ARRA. Thus the ARRA is the second most broadly ratified UN space treaty after the OST (107 state parties and 23 additional signatures as of 2018).
The two space powers at the time had experienced fatal accidents in their manned space programs in the 1960s, which alerted them to the dangerous conditions under which astronauts and cosmonauts were operating (Gál, 1984, p. 93; Kopal, 2011, pp. 113–114). According to the ARRA, humanitarian assistance should be secured in cases of distress and accident including outside their own territories and in areas beyond national jurisdiction. In addition, they were concerned about possible mistreatment or hostage situations with astronauts and cosmonauts during the time of the Cold War (Vereshchetin, 1978, p. 554; von der Dunk & Goh, 2009, p. 96).
The second topic covered by the ARRA is the return of space objects that are found on the territory of a state or in an area beyond national jurisdiction. This interest was comparably less strong and resulted in only one article of the ARRA dealing with space object recovery and return. The return is furthermore dependent on the explicit request for its return by the launching authority, which presumably will only do so if the space object has remaining scientific value or other residual worth (Dembling & Arons, 1968, p. 655).
In sharp contrast to this order of priorities stands the subsequent practical relevance of the respective provisions of the ARRA. While the rules relating to the rescue and return of astronauts have never been applied, space objects have frequently been returned on the basis of the ARRA.
In recent times, discussions on the possible application of the rules on astronaut rescue and return have been revived in the context of the development of so-called space tourism. Should private space flight participants also be protected by the ARRA, which, together with the earlier OST, accords them a special status under international law? While the ARRA purports to protect the “personnel of a spacecraft,” the OST speaks of “envoys of mankind.”
Furthermore, an interesting question concerns the costs involved in the rescue and return of astronauts and space objects. Who should pay for them? Should it be the governments who benefit from the rescue and return or those who undertake the respective rescue and return activities? Should “space tourists” bear the costs if they need to be rescued? With the increasing involvement of private actors and the development of new space programs, these questions must be explored and set in relation to the provisions, context, and the object and purpose of the ARRA.
Legal Framework and the Scope of Rescue and Return
The ARRA is the result of negotiations in the Legal Subcommittee (LSC) of the United Nations Committee for the Peaceful Uses of Outer Space (UNCOPUOS), which was established by the UN GA as an ad hoc committee in 1958 in order to report, inter alia, “on the nature of legal problems which may arise in the carrying out of programs to explore outer space” (UN GA, 1958). In 1959, it became a permanent committee (UN GA, 1959) and created the LSC in 1962 (UN Doc. 1962).
The LSC first focused on the formulation of general principles on the exploration and use of outer space, which resulted in the adoption of the UN GA resolution “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space” in 1963 (UN GA Res., 1962, Declaration of Legal Principles). This declaration addressed the rescue and return of astronauts in Principle 9:
States 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 a foreign State or on the high seas. Astronauts who make such a landing shall be safely and promptly returned to the State of registry of their space vehicle.
With regard to space objects, the declaration provided in its Principle 7:
The State on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and any personnel thereon, while in outer space. Ownership of objects launched into outer space, and of their component parts, is not affected by their passage through outer space or by their return to the earth. Such objects or component parts found beyond the limits of the State of registry shall be returned to that State, which shall furnish identifying data upon request prior to return.
After the successful completion and adoption of the Declaration of Legal Principles, the LSC continued negotiations on an international treaty that would set out binding international rights and obligations for states in the exploration and use of outer space (Dembling & Arons, 1966, pp. 336–338). The OST of 1967 repeated the formulations of the Declaration of Legal Principles in part but added more obligations with regard to rendering assistance and reporting to the UN Secretary-General in its Article V:
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.
With regard to space objects, the OST remains even closer to the Declaration of Legal Principles and essentially replicates it in its Article VIII, only complementing “in outer space” by “on a celestial body”:
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.
There was thus remarkable consensus on some basic principles when the LSC turned to the negotiations on a separate instrument that would set out more specific rules on the rescue and return of astronauts and the return of space objects (Dembling & Arons, 1968, pp. 639–640). Yet, a number of issues still turned out to be rather controversial between the United States and the Soviet Union.
One important controversial issue concerned possible conditions attached to the return of astronauts or space vehicles. The Soviet Union initially wanted to exclude space vehicles launched for military purposes and reconnaissance activities and required that the launch must have been for “peaceful purposes.” After long negotiations, the obligation to return remained unconditional (Cheng, 1969, p. 191; Dembling & Arons, 1966, pp. 338–349; Hall, 1969, p. 203; Kopal, 1969, pp. 111–115).
The role of international intergovernmental organizations was another issue of controversy. The United States supported the view that international organizations engaged in space activities should have the same rights and obligations as states. The Soviet Union rejected this view due to its generally skeptical attitude toward accepting the international legal personality of international organizations (Houben, 1968, p. 129). The compromise eventually found makes the ARRA applicable to international organizations under the condition that the organization has accepted the rights and obligations provided for in the agreement and that a majority of the state’s members of the respective international organizations have ratified the ARRA and the OST (Article 6, ARRA).
On the issue of dispute settlement, the United States proposed jurisdiction of the International Court of Justice, which could be invoked by any party in accordance with Article 36, paragraph 1 of the Statute of the International Court of Justice. However, the Soviet Union would only accept the competence of the International Court of Justice with the consent of all the parties of the dispute (Dembling & Arons, 1966, p. 340). This controversy could not be solved, so the ARRA does not contain any provision on the settlement of disputes.
The relationship with the duty to pay compensation for damage caused by space objects was another subject of debate. Several members of the LSC highlighted that, while rescue and return primarily served the interest of space-faring nations, liability was predominantly in the interest of non-space faring countries (Dembling & Arons, 1968, p. 631). However, no direct connection was established between the obligations to assist and return and the obligation to pay compensation for damage. Negotiations about the question of liability were held in parallel but separately. They eventually culminated in the adoption of the Convention on International Liability for Damage Caused by Space Objects (LIAB) by the UN GA on November 29, 1971, which was opened for signature on March 29, 1972 and entered into force on September 1, 1972.
In December 1967, after 15 bilateral meetings had been held between the representatives of the United States and the Soviet Union, the LSC was convened in a special session. The draft text was forwarded to UNCOPUOS, which approved it after some modifications (Dembling & Arons, 1968, p. 640; Houben, 1968, p. 121; Kopal, 2011, p. 113). Quite unusually, the text was not presented to the First Committee, which generally examines texts in the area of disarmament and international security to which outer space affairs have usually been counted, but was directly submitted to the UN GA. On December 19, 1967, the UN GA approved the text by unanimous vote of 115–0 (Dembling & Arons, 1968, p. 630). It was opened for signature on April 22, 1968 and entered into force on December 3, 1968.
The ARRA has been criticized for the lack of time for detailed consideration of the draft agreement and the almost “bilateral” way in which this treaty was negotiated between the United States and the Soviet Union so that other countries’ input was not appropriately taken into account (Cheng, 1969, p. 196). In spite of the factual reality of states with differing space capabilities, such an approach in treaty negotiations was not regarded as a good example for the future. The ARRA has also been blamed for favoring one-sidedly the interests of the space-faring countries and, due to the speed it was prepared and rushed through the UN, of not being properly drafted and therefore creating a number of unresolved problems and difficulties (Cheng, 1969, p. 208). The multiplication of the number of space-faring nations after the entering into force of the ARRA, the development of new types of space activities, as well as the increased involvement of private actors have further contributed to the number of problems and difficulties that need to be resolved.
The ARRA contains detailed obligations of states that become aware of astronauts in distress or of space objects found on Earth. These include, above all, notification, assistance, and return. Different obligations are set out for the recovery of astronauts on the one hand and space objects on the other.
At the outset it is interesting to note that the term “astronaut” only appears in the title of the ARRA and in its preamble. In the Russian version of the text, which is equally authentic, the term “cosmonaut” is used. Throughout the operative provisions of the ARRA, the term “personnel of a spacecraft” is consistently applied instead. The drafting history of the ARRA reveals that the term “astronaut” as contained in the OST and the Declaration of Legal Principles was gradually replaced by the term “personnel of spacecraft” but interestingly without an extensive debate in UNCOPUOS or its LSC (Marboe, Naumann, & Schrogl, 2013, p. 34). The UN treaties on space law employ different terms with regard to human beings in outer space (Achilléas, 2004, pp. 14–15; Stelmakh, 2014, pp. 424–425), and the predominant concern relates to consistency of the use of the terms throughout the ARRA. The delegations obviously preferred the term “personnel of a spacecraft,” which was essentially regarded as being identical with the term “astronaut” (Marboe et al., 2013, pp. 35, 41; Sundahl, 2009, pp. 187–189).
Notification with regard to astronauts is the first of the obligations set out in the ARRA. Article 1 reads:
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 obliges any party to the ARRA that learns about the situation to a twofold notification: (a) to the launching authority and (b) to the UN Secretary-General.
The use of the term “launching authority” is notable, because the OST, the LIAB, and the Registration Convention (REG) of 1975 provide for a central role of the “launching State.” The explanation for the adoption of this different term can be found in the negotiating history. The United States proposed that international organizations, in addition to states, should have the same rights and obligations as states when they launched an astronaut or a space object (UN Doc. March 9, 1964; Marboe et al., 2013, pp. 35, 39). By contrast, the Soviet Union was against an explicit reference to international organizations but eventually did not insist on excluding them throughout (Marboe et al., 2013, pp. 40, 46). As a compromise, the term “launching authority” was chosen, which includes both states and international organizations responsible for launching. It is explicitly defined in Article 6 ARRA as follows:
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 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.
This discussion on the role of international organizations and the compromise reached is also reflected in the consistent use of the term “Contracting Party” instead of the term “State Party,” which is applied in all of the other UN space treaties, including the OST, the LIAB, the REG, and the Moon Agreement. The term “Contracting State” had been presented by the Soviet Union, which later changed it to “Contracting Party” in the context of its concession with regard to the role of international organizations (Marboe et al., 2013, p. 40; UN Doc. June 19, 1967).
The duty to notify is a remarkable alteration to the related provision of Article V of the OST, which does not have it but instead requires the sharing of information of any phenomena that could constitute a danger to the life or health of astronauts. Nevertheless, the notification obligation was one of the least controversial and can be regarded as a reflection of the essentially humanitarian purpose of the ARRA (Dembling & Arons, 1968, p. 642). This is reinforced by the emphasis on avoiding any waste of time highlighted by the repeated use of the word “immediately” and the addition of “without delay” as human lives may be in danger and may perhaps be saved by quick action (Van Bogaert, 1986, p. 102).
The situations addressed are accident, distress, emergency landing, or unintended landing. The ARRA does not contain a clear definition of the different situations, but there is a general understanding that the terms should be interpreted broadly, rather than restrictively, in order to cover all situations that reasonably require actions to help (Marboe et al., 2013, p. 44; Van Bogaert, 1986, p. 101).
With regard to space objects, Article 5(1) of ARRA contains a similar notification obligation:
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.
While the notification as such is rather unproblematic, the potential hazardous or deleterious nature of the space object itself is of some concern. In this respect, paragraph 4 of Article 5 provides that, if the contracting party has reason to believe that this is the case, it “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.” In view of the lack of humanitarian concerns, unlike in Article 1, no urgency is attached to the notification and no public announcement is required if the launching authority cannot be identified immediately (Dembling & Arons, 1968, p. 654). Notifications under Article 5, paragraph 1 are published in the UN Document Series ST/SG/SER.E; for some examples of such notifications, see the Appendix.
Rescue and Assistance Operations
The core of the ARRA is the determination of the conditions and the extent of the obligation of states to render assistance to astronauts in distress. Articles 2 to 4 primarily differentiate between the locations where the astronauts have been found. They address both the rights and obligations of the states that receive information about the situation and those of the launching authority. An important factor in this respect is whether the situation occurs on the territory under the jurisdiction of a state or at another place not under the jurisdiction of any state, such as the high seas.
With respect to astronauts landing in the territory of a state, the means of assistance required from that state were the subject of considerable debate in the negotiation phase (Dembling & Arons, 1966, pp. 338–339). On the one hand, with respect to the humanitarian purpose of the ARRA, all possible assistance should be sought, but, on the other hand, the territorial sovereignty of states must also be respected. Article 2 of the ARRA sets out in its first sentence:
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.
The formulation “all possible steps” and “all necessary assistance” is a slight alteration from Article V of the OST, which requires the rendering of “all possible assistance.” Under the ARRA, the respective state is obliged to take those steps that are within the limits of the means at its disposal. If these means are not sufficient to rescue the astronauts, the question arises what assistance must be sought or accepted. In the negotiation phase, the United States and the Soviet Union proposed that the state should be obliged to co-operate with the launching authority, request assistance, or at least permit the launching authority to act (Dembling & Arons, 1966, p. 341). Several states, however, were concerned that they would then have to admit personnel of the launching authority onto their territory for search and rescue operations, which would have serious implications for their territorial sovereignty (Cheng, 1969, pp. 198–199). The compromise reached after some controversial debates was crystallized in the following text found in the last two sentences of Article 2 of the ARRA:
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 co-operate 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.
This means that the direction and control of the territorial state is prevalent in respect of its territorial sovereignty, while the obligation to co-operate with it is on the launching authority (Van Bogaert, 1986, p. 108).
With regard to assistance in the recovery of space objects, the same balance of rights and obligations of the territorial state and the launching authority is contained in Article 5, paragraph 2 of the ARRA:
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.
The right of the territorial state to decide to accept assistance or not from the launching authority was subject to dispute between the Soviet Union and Canada after the crash of the Cosmos 954 satellite on Canadian territory in 1978. The crash caused radioactive contamination of a large area from the nuclear power source that was on board the satellite. The Canadian government refused to allow the Soviet authorities to join in the search and rescue operations, which the Soviet Union used as an argument to pay less than the claimed amount of Can$6 million for actual expenses and additional compensation for future unpredicted expenses, namely $Can3 million (Hurwitz, 1990, pp. 350–353).
If an emergency situation occurs on the high seas or in any other place not under the jurisdiction of any state, the issue of interference with the rights of the territorial state does not arise. In such a case, the ARRA defines what kind of assistance is required, both from incidental bystanders and from the launching authority. It determines in Article 3:
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.
It is remarkable that the launching authority is not given a more prominent role in the rescue operations than that of being informed. This is in stark contrast to the proposals of the space-faring nations which, in the negotiation phase, asked for a privileged if not exclusive right of the launching authority (UN Doc. June 6, 1962, USSR Proposal; UN Doc. March 9, 1964, U.S. Proposal). However, in view of the duty to render “all possible assistance” to astronauts in distress established under Article V of the OST, the humanitarian concern was eventually considered to be more relevant than privileged rights and interests of the launching authorities so that the text obliges all states “which are in a position to do so” to extend their assistance. This includes of course the launching authority, which only needs to be informed in order to be put in the position to act accordingly.
The obligation to return astronauts promptly to the launching authority is distinct from the obligation to rescue and independent from the location where they have landed. Against the background of the Cold War the concern existed that astronauts could be detained for criminal charges (Dembling & Arons, 1966, p. 339). The Soviet Union raised the argument that astronauts could be engaged in aggressive military activities or espionage. Furthermore, space vehicles carrying devices for the collection of intelligence information in the territory of another state should not be returned. According to the Soviet Union, foreign spacecraft should only be promptly returned if they have identification marks and if their launchings had been officially announced. This was later changed to the condition that the space object must have been launched for purposes of peaceful exploration and use of outer space, or launched in accordance with the Declaration of Legal Principles (Dembling & Arons, 1968, p. 652; Houben, 1968, p. 128). However, these conditions were not acceptable to the United States and other states. In the absence of compulsory dispute settlement procedures, doubts on the fulfilment of the conditions could in practice be determined unilaterally by the state on which the obligation to return was incumbent. Eventually, the duty to return astronauts and space objects remained unconditional, as it had previously been set out in the Declaration of Legal Principles and in the OST.
Some states emphasized that the right of astronauts to seek asylum needed to be safeguarded (Dembling & Arons, 1968, p. 653; Kopal, 2011, p. 117). Yet, the possibility that an astronaut might seek asylum in a state on whose territory he or she had landed was eventually viewed not as a real problem, as astronauts who wished to defect would find a more convenient way of doing so. Accordingly, Article 4 of the ARRA contains the duty to return the astronaut safely and promptly to the launching authority without any qualification:
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.
Even if the obligation to return astronauts is unconditional, the possibility remains that a state may believe that the astronauts did not made an “unintentional” landing on its territory, so no duty to return them arises (Gorove, 1969, pp. 899–900). In addition, the ARRA does not distinguish between the military or the civilian status of the personnel of a spacecraft, which means astronauts in the military services of the launching authority must also be returned promptly (Marboe et al., 2013, p. 62).
With regard to space objects, the obligations of states are quite different. The immediate return is not paramount, and conditions can be attached, as becomes apparent in Article 5, paragraph 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.
It is not entirely clear which identification data are required. One could think of certain data furnished under Article IV REG for the registration of the space object, such as the designator, registration number, and general function. Other data, such as the orbital parameters, will not be relevant. Article 5, paragraph 3 of the ARRA does not exclude that the launching authority will be requested to furnish more and different data than those submitted for registration purposes in order to allow for an unequivocal identification.
Payment of Expenses
Rescue and return operations of spacecraft and astronauts may involve considerable costs. Under the ARRA, which is “prompted by sentiments of humanity” according to its preamble, the assistance and rescue of astronauts can be regarded as a primarily humanitarian duty. Similar considerations are prevalent with regard to rescue operations at sea. Article 92 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides that every state shall require the master of a ship flying its flag to render assistance to any person found at sea in danger of being lost. UNCLOS does not contain any right of compensation for the expenses related to such activities. Similarly, the rules on salvage at sea only deal with compensation for costs involved for saving property, but not for saving persons (Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea, 1910; Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea, 1989). However, in the context of space flight the same rationale may not be entirely be applicable, as only a few states are carrying out space activities and will have astronauts to be returned. In this vein, in the negotiation phase of the ARRA, some delegations argued that the rescue of astronauts would be for the benefit of only a few states (Dembling & Arons, 1966, p. 342). Nevertheless, there is no provision in the ARRA that would require a reimbursement of the expenses for assistance and rescue of astronauts.
By contrast, expenses incurred for the recovery and return of space objects need to be reimbursed by the launching authority. Article 5, paragraph 5 it provides in this respect:
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.
Disagreements about the amount of compensation payable arose in the context of the Cosmos 954 incident in 1978 when the Soviet Union refused to pay the full amount presented by Canada (Hurwitz, 1990, pp. 350–353). In other cases, the amount of compensation was negotiated between the parties (see examples in Marboe et al., 2013, pp. 15–16, 70).
A distinction must be drawn between the reimbursement of expenses for the recovery and return of a space object and the claim for damages caused by that space object. In the negotiations in the LSC of UNCOPUOS there was general agreement that, even though the two subjects were interlinked, they should be drafted separately and independently. In effect, the negotiations on the rules regulating state liability for damage caused by space objects were conducted in parallel with the ARRA and resulted in the finalization of the LIAB and opening for signature in 1972 (see “History”).
Rescue and Return in Practice and New Challenges
Accidents and Distress of Astronauts and Cosmonauts
Tragic accidents of astronauts that happened in the United States and the Soviet Union in the 1960s were the main reason for the interest of the two space powers to conclude the ARRA as fast as possible (Cheng, 1969, pp. 186–187; Gál, 1984, p. 93; Kopal, 2011, pp. 113–114). In particular, in 1967 two fatal accidents happened, which speeded up the negotiation process considerably. On January 27, the U.S. astronauts Chaffee, Grissom, and White died in a fire in Apollo 1 during a test on the launch pad. On April 24, the Soviet cosmonaut Komarov was killed in the landing of Soyuz-1 because of a defect in the parachute system.
Since the entry into force of the ARRA, 17 more astronauts have died in flight accidents. In 1971, three Soviet cosmonauts were killed in Soyuz-II due to lost air pressure (de Faramiñán Gilbert & Muñoz Rodriguez, 2011, p. 46; Gál, 1984, p. 93). Seven NASA astronauts died in the Challenger and Columbia disasters in 1986 and 2003, respectively. The space shuttle Challenger exploded a few minutes after its launch from Cape Canaveral, killing two women and five men. The space shuttle Columbia disintegrated upon re-entry after damage to the shuttle’s thermal protection system led to structural failure (de Faramiñán Gilbert & Muñoz Rodriguez, 2011, pp. 47–52). These fatal accidents happened so quickly that no action was possible for their rescue.
Other emergency situations occurred that put the life of astronauts in danger but nevertheless did not trigger the application of the ARRA. An example was the collision of the Russian Mir station with a cargo freighter, which punctured a hole in a module, in June 1997 (Faramiñán Gilbert & Muños Rodriguez, 2011, p. 49). The space station began depressurizing, but the onboard crew, including three astronauts (two Russian and a visiting NASA astronaut) were able to close off the module from the rest of the Mir and survived. Due to the wording of Article 3 of the ARRA, which relates to astronauts who “have alighted” on places outside the jurisdiction of any state, the contracting parties are not obliged to undertake rescue operations in such situations that occur in outer space.
Assistance could, however, be offered voluntarily or on the basis of Article V of the OST. This was the case during Apollo 13, the third U.S. mission intended to land on the Moon in July 1970, when an oxygen tank exploded in the service module. During the incident, the Soviet Union officially offered assistance to the United States (Hedman, 2018, pp. 6–7). The crew rescued itself without outside help by using the Lunar Module as a “lifeboat” and safely returned to Earth six days after the launch.
The lack of practical application of the ARRA with respect to astronauts in distress has factual and legal reasons. Regarding the former, severe accidents have occurred quickly and left no time for assistance or rescue. Regarding the latter, emergency situations occurring in outer space are not covered under the ARRA. In addition, rescue of astronauts in outer space is only possible if a stand-by rescue vehicle could reach the distressed astronauts in time to provide assistance, which is not a realistic scenario in the current state of space flight. The scope of application of the ARRA is limited to astronauts who have landed on Earth and need assistance. While this situation has not yet occurred in practice, this may change with the development and improvement of the respective technology, including new systems of soft landings and reusable spacecraft.
The Practice of Recovering and Returning Space Objects
In contrast to the provisions on rescue and return of astronauts, the provisions of the ARRA with regard to the return of space objects have been applied in several instances since its entry into force. Notifications of space objects found are published in the UN Document Series ST/SG/SER.E.
The first recovery and return of a space object happened before the entry into force of the ARRA, when a component part of a Soviet Sputnik 4 landed in Wisconsin in September 1962 and was returned to the Soviet embassy in May 1963 (von der Dunk, 2008, p. 426). The earliest notification to the UN Secretary-General dates from July 1, 1968, provided “in the spirit” of the ARRA, which had not yet entered into force (Hedman, 2018, p. 8; von der Dunk, 2008, p. 426). The first notification under the ARRA was from the United States on April 9, 1969.
The information provided by states to the UN Secretary-General usually includes the (a) date of discovery, (b) location of discovery, (c) physical characteristics, and (d) originating space objects, when identified (Hedman, 2018, p. 11). In addition, states have also investigated whether the objects might be “of a hazardous or deleterious nature” with a view to Article 5, paragraph 4 of the ARRA (von der Dunk, 2008, pp. 427–430).
Some interesting cases of space object return and recovery of expenses happened to the United States in the early 2000s (Hodgkins, 2003, pp. 59–65). On March 13, 2000, the U.S. Permanent Mission to the UN notified the UN Secretary-General that an object had washed ashore near Corpus Christi, Texas, and appeared to be part of the nose cone of a French Ariane rocket. The Permanent Mission reported that the government of the United States had notified the government of France and invited it to identify the object. Later on, the cone was turned over to the French authorities, which honored their obligation under Article 5, paragraph 5 of the ARRA to cover expenses incurred by the U.S. authorities. These included reimbursement of US$100, which a U.S. policeman had to pay the farmer who had found the space object and who did not let go of it easily (von der Dunk, 2008, p. 429).
On July 3, 2000, the Permanent Mission of South Africa to the UN reported that three space objects had been discovered on South African territory. The objects were found in Durbanville, Worcester, and Robertson, respectively, in the Western Cape Province of South Africa, on April 27, 2000. Investigations undertaken in conjunction with representatives of NASA revealed that the objects were believed to be component parts of a DELTA II second stage rocket used to launch a U.S. global positioning system satellite on March 28, 1996. However, in the meantime, the local community where the objects were found had built a small museum around them. For the removal and return of the space objects some walls had to be taken down, since the largest object would not fit through the museum door. The United States, in honoring its obligations under Article 5, paragraph 5 of the ARRA, reimbursed the damage incurred by the local community (von der Dunk, 2008, p. 430). Another piece of the DELTA II second stage rocket was found in Argentina, as reported to the UN Secretary-General in 2004 (Sundahl, 2009, p. 179).
Numerous states have reported the recovery of space objects to the UN Secretary-General after the entry into force of the ARRA. The total number of recovered space objects in the first 50 years was approximately 140 (Hedman, 2018, p. 8). In the case of Saudi Arabia this was done even though this country was not a contracting party of the ARRA (Hodgkins, 2003, p. 66; von der Dunk, 2008, p. 431). If a state has not ratified the ARRA, the correct legal basis would be Article VIII of the OST, which requires the return of a space object to the state of registry. As of 2018, Peru was the last state that had notified the recovery of space objects on its territory, amounting to five different objects at four different locations (Hedman, 2018, p. 8). A list of recovered objects and their notification details can be found on a dedicated web page of the UN Office for Outer Space Affairs.
Since the 1990s, private individuals have shown an increased interest in participating in space flights. The Soviet Mir station was the first to offer a Japanese journalist and later an English engineer the opportunity to spend some time in Earth’s orbit (Negoda, 2003, pp. 90–91). In 2001, the American national Dennis Tito spent six days in the Russian segment of the International Space Station (ISS) for his mere private interest and desire and at his own expense (purportedly US$20 million; Freeland, 2005, p. 2). This event is seen as the beginning of the phenomenon of “space tourism” (von der Dunk, 2015, p. 602). Another six orbital tourists, including the Iranian-American woman Anousheh Ansari and the South African Mark Shuttleworth, followed (Freeland, 2005, p. 2).
At about the same time, the Ansari X-Price was launched to reward US$10 million to a private company that would be able to complete two flights within two weeks to an altitude of more than 100 km and back. This achievement was reached in 2004, when SpaceShipOne, with a pilot and room for two passengers, was released from a rocket-powered vehicle WhiteKnightOne above the Mojave Desert (von der Dunk, 2015, p. 663). SpaceShipTwo, for two pilots and six passengers, was shortly thereafter designed and built by Virgin Galactic with the aim to offer passengers flights to the edge of outer space and back (at a purported price of approximately 200.000 USD; von der Dunk, 2015, p. 663). The flights do not reach orbital speed and do not complete an Earth orbit but reach a speed at a certain altitude that makes the passengers feel a few minutes of microgravity or “weightlessness.” They are generally called “suborbital flights” (Catalano Sgrosso, 2014, p. 467; see also later discussion).
Such activities are currently referred to as space tourism. Commentators have proposed to define them as “any commercial activity offering customers direct or indirect experience with space travel” (Freeland, 2005, p. 6; Hobe & Cloppenburg, 2004, p. 377). Others have pointed out that the different forms of private involvement in manned spaceflight should be reflected more precisely, because there can be “flights of humans intended to enter outer space (a) at their own expense or that of another private person or private entity, (b) conducted by private entities, or (c) both” (von der Dunk, 2015, p. 667.) Furthermore, the distinction between “suborbital” and “orbital” private manned spaceflight activities should be drawn more clearly, as they are factually and legally different (von der Dunk, 2015, pp. 708 ff.). In the United States, the term “spaceflight participant” was introduced in national legislation, which amended the commercial space launch legal regime in order to accommodate the regulatory needs of the emerging industry (Sundahl, 2014, p. 384; von der Dunk, 2015, pp. 682–696).
Whether private manned spaceflight participants should qualify as “astronauts” or “personnel of a spacecraft” under the ARRA is the subject of controversial debate in academia and practice. In particular, the question of whether they would be subject to rescue and prompt return—and, if so, whether they would have to pay for it—has not been uniformly answered (Bittlinger, 1991, pp. 210 f., Hobe, 2007, pp. 455–458; Lyall, 2009, p. 1617; Sundahl, 2009, p. 189; von der Dunk, 2008, p. 434).
The ARRA itself does not provide a definition of the term “astronauts” or “personnel of a spacecraft.” According to the rules of treaty interpretation (Articles 31 and 32 VCLT), a treaty term must be interpreted in accordance with its ordinary meaning, in its context, and in light of the object and purpose of the treaty. The ordinary meaning of the term could imply that an “astronaut” must be a highly trained state-employed professional (Lyall, 2009, p. 1613). However, in light of the context and the object and purpose of the treaty, this interpretation is not necessarily sufficient. The preamble of the ARRA refers to “sentiments of humanity” that prompted the contracting parties to negotiate the ARRA. The duty to rescue and return could therefore be regarded as being primarily motivated by a concern for human welfare, which suggests a broader conception (Sundahl, 2009, p. 189).
The term “astronaut” is also used in the Moon Agreement, which provides that the states parties regard “any person on the Moon as an astronaut within the meaning of article V [OST]” and obliges all state parties to “adopt all practicable measures to safeguard the life and health of persons on the Moon” (Article 10, paragraph 1). This clarification of the scope of application of the mentioned provision within the context of the Moon Agreement is broad and encompasses any human being, whether a professional or private person, who has landed on the Moon. However, the Moon Agreement has only been ratified by 18 states (as of 2018).
In the legal framework of the ISS, the appearance of space tourists led to an agreement between the ISS partner states on guidelines for the selection, assignment, and training of ISS crewmembers in 2002. Also certain criteria with regard to the certification of crew flight readiness were included. The agreement on Principles Regarding Processes and Criteria for Selection, Assignment, Training and Certification of ISS (Expedition and Visiting) Crewmembers distinguishes between two types of crewmembers, namely “professional astronauts/cosmonauts” and “spaceflight participants.” According to this agreement a “professional astronaut/cosmonaut” is “an individual who has completed the official selection and has been qualified as such at the space agency of one of the ISS partners and is employed on the staff of the crew office of that agency.” By contrast, “spaceflight participants” are “individuals (e.g. commercial, scientific and other programs; crewmembers of non-partner space agencies, engineers, scientists, teachers, journalists, filmmakers or tourists) sponsored by one or more partner(s). Normally, this is a temporary assignment that is covered under a short-term contract.”
The 2002 agreement also introduces another distinction between crewmembers, namely “expedition crewmembers” and “visiting crewmembers.” Both categories can be either “professional astronauts/cosmonauts” or “spaceflight participants.” “Expedition crewmembers” are “the main crew of the ISS and are responsible for implementing the planned activities for an increment.” Every participating space agency has the right to have its candidates serve as expedition crewmembers. As part of this allocation, it may be possible to have spaceflight participants as part of an expedition once the ISS has a crew complement of more than three persons. “Visiting crewmembers” travel to and from the ISS but are not expedition crewmembers. Consequently, they do not count as a use of a sponsoring agency’s allocation of flight opportunities or crew time on-orbit rights. They may be either professional astronauts/cosmonauts or spaceflight participants.
These clarifications are important with regard to the legal status of private spaceflight participants and are likely to have an impact beyond the concrete ISS framework, as the most important space faring states have agreed on them (Hobe, 2007, p. 458; von der Dunk, 2015, p. 711). Whether they imply the application of the provisions of the ARRA to private spaceflight participants is, however, still not entirely clear. The definitions and distinctions could be used to argue in favor (Hobe, 2007, p. 459; Sundahl, 2009, p. 189) or against (von der Dunk, 2015, p. 711).
The term “spaceflight participant” as used in the U.S. national space legislation also makes the distinction between private passengers and traditional astronauts (Hobe, 2007, p. 458; von der Dunk, 2015, p. 711). The 2004 Commercial Space Launch Amendments Act requires an operator to obtain “informed consent” of the passenger before he or she receives the license to launch or re-enter as a spaceflight participant. The “informed consent” replaces the need for safety certification that is required for aircraft under the laws of civil aviation (von der Dunk, 2015, p. 691). In fact, such certifications were prohibited under the 2004 Commercial Space Launch Amendments Act, which introduced so-called experimental permits as alternatives to proper licenses, which should lessen the burden of the emerging commercial space industry.
The rescue and return of private spaceflight participants will in the not too distant future be of an increasing concern. The emergence of space tourism has led to an awakening of the ARRA, the “sleeping beauty” of international space law (von der Dunk, 2008, p. 434). While the humanitarian duty to rescue is generally not put into question, a number of uncertainties, including the obligation to return and the bearing of the expenses, will inevitably have to be clarified. Opinions are diverging, and future practice will show how the object and purpose of the ARRA will be transposed in the context of new types of space activities, in particular if they are for commercial purposes and have other motives than the exploration and use of outer space for the benefit of humankind in the more traditional sense.
The development of space tourism has revived another discussion in international law, namely whether suborbital flights that do not reach orbital speeds and do not complete one orbit around the Earth qualify as “space activities.” Only if they do could they be governed by international space law, including the ARRA.
While there is no legal definition of the term “suborbital flight,” the description developed in the framework of the International Civil Aviation Organization (ICAO) is widely shared, namely as “a flight up to a very high altitude which does not involve sending the vehicle into orbit” (ICAO, 2010). The legal regime governing suborbital activities is unclear and the subject of intensive debate in academia and practice (see, e.g., ILA Space Law Committee, 2014, pp. 311–319; ILA Space Law Committee, 2016, pp. 134–141). The challenges of identifying the applicable rules are connected to the diversity of activities that can characterized as suborbital. Early examples are experimental and scientific sounding rockets and ballistic missiles. In the context of space tourism, they include the launch of a rocket from an aircraft, vertical launches, and soft re-entries, as well as point-to-point transportation (Hobe, 2007, p. 440; ILA Space Law Committee, 2016, p. 135; von der Dunk, 2015, p. 668).
Depending on the type of activity, the legal regime of airspace, rather than that of outer space, may be relevant. However, air law is based on fundamentally different principles and concepts than space law (Langston, 2011, pp. 299 ff.). Most importantly, it is internationally recognized that states have sovereignty over their national airspace (Articles 1 and 2, Chicago Convention), while outer space is free from any national appropriation, by claim of sovereignty, by means of use or occupation, or by any other means (Article II, OST). The two areas of law have therefore developed independently from each other, and it seems difficult to reconcile them for the purpose of regulating suborbital flights (Hobe, 2007, p. 440; ILA Space Law Committee, 2016, p. 136). The difficulty is exacerbated by the fact that there exists no internationally recognized delimitation between airspace and outer space. Some states favor a “spatial approach” of the delimitation and seem to converge at an altitude of 100 km above sea level, but others insist on a “functional approach,” which focuses on the characteristics and purpose of the activity (Hobe, 2007, p. 442).
It is therefore not possible to distinguish the (parts of the) activities taking place in airspace and those taking place in outer space and apply the respective regime accordingly. At the current state of the law, a widespread approach is to differ between air flight and space flight on the basis of the status of the vehicle. According to this approach, it is decisive whether the activity in question is carried out by an aircraft or a spacecraft. The term “aircraft” is defined in Annexes to the Chicago Convention as “all machines which can derive support in the atmosphere from the reactions of the air” (Annexes 6, 7, 8 to the Chicago Convention). It follows that vehicles that stay in the air due to aerodynamic lift are “aircraft.” By contrast, spacecraft that derive their propulsion from rocket engines do not fall under this definition. The term “space object” as used in the UN outer space treaties is, however, not properly defined. The treaties only clarify that it “includes component parts of a space object as well as its launch vehicle and parts thereof” (Article 1, LIAB; Article 1, REG). The reference to “launch” could provide an indication that the object needs to be vertically departed from Earth with the use of rocket engines, but this does not necessarily exclude different kinds of launches as long as the object reaches outer space (von der Dunk, 2015, p. 679).
In view of the these factors, it cannot generally be said whether air law or space law is more appropriate to regulate suborbital activities. At the national level, some states have opted for treating them as “space activities” (such as the United States); others have explicitly excluded them from the scope of application of the national space law (such as Belgium). At the international level, there seems to be an emerging awareness that a specific legal regime is required. The development of such a regime has been proposed in academia (ILA Space Law Commmitee, 2014, p. 319; ILA Space Law Committee, 2016, p. 141). Some authors have argued that the outer space treaties, including the ARRA, should be revised in order to explicitly include suborbital flights in their scope of application (Sundahl, 2009, p. 194). However, there are many hurdles to overcome before new international treaty law can successfully be negotiated. Until then, treaty interpretation by states as well as new state practice and opinio iuris, thus customary international law, may develop and shape the contours of the legal framework of suborbital flights.
The ARRA of 1968 reflects primarily the needs and interests of the space-faring states at the time of its conclusion: the United States and the Soviet Union. It was negotiated and concluded in a remarkably short period of time after the conclusion of the OST in 1967, which might have contributed to some shortcomings and inconsistencies. As a consequence it was hardly ever applied in its first 50 years of existence, at least in regard to its primary objective, the rescue and return of astronauts.
With the increasing commercialization and privatization of space activities, and in particular with the emergence of space tourism, the sleeping beauty may awaken, as one commentator put it. However, many open questions need to be resolved. The ARRA is a product of the first period of human space flight, which was state-centric in many respects. Space activities were primarily organized and financed by states, and their objectives were driven by governmental needs and priorities. In the last years, this scenario has changed and nongovernmental entities are increasingly active. Commercial companies are not only offering services to governmental customers but also developing their own space programs and projects. In addition, private individual have discovered their interest in space activities and are interested customers for governmental and commercial space service providers.
Traditional space law, including the ARRA, has to be adapted to this new situation. Whether a mere interpretation of the treaty is sufficient or new texts or amendments are needed is still subject to discussion in academia and practice. This concerns in particular the rediscovered suborbital flights that are offered to interested private individuals who want to experience a few minutes of weightlessness or microgravity. Technically, such flights are described as flights up to very high altitudes that do not reach Earth orbit. Whether these activities are “space activities” from a legal point of view or should rather be covered by national and international air law is answered differently by different states. However, there are also initiatives ongoing, primarily in academia, that consider the development of an entirely new regime or at least a significant amendment to the existing treaties, including the ARRA, for the regulation of suborbital flights. It remains to be seen whether this initiative will be taken up by states in practice.
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1. Note Verbale dated January 20, 2000, from the Permanent Mission of Japan (Vienna) addressed to the Secretary-General (UN Doc. A/AC.105/735).
2. Note Verbale dated March 13, 2000, from the Permanent Mission of the United States of America (Vienna) addressed to the Secretary-General (UN Doc. A/AC.105/735).
3. Note Verbale dated July 3, 2000, from the Permanent Mission of the South Africa (Vienna) addressed to the Secretary-General (UN Doc. A/AC.105/735).
4. Note Verbale dated March 8, 2001, from the Permanent Mission of the Saudi Arabia (Vienna) addressed to the Secretary-General (UN Doc. A/AC.105/735). Published in Hodgkins (2003).