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The Rescue Agreement at 50: The IISL/ECSL Symposium

The first Monday afternoon of the annual session of the United Nations (UN) Committee on the Peaceful Uses of Outer Space (UNCOPUOS) Legal Subcommittee usually features a symposium hosted by the International Institute of Space Law (IISL) and the European Centre for Space Law (ECSL). This year the focus was on the Rescue Agreement[1] as this year marks the 50th anniversary of the entry into force of that treaty, the second of the five (or four…?) main space law treaties.

There were several interesting presentations and I will give a brief overview of them here, I plan a second post on my own thoughts on the Rescue Agreement, particularly the definition of astronaut and ‘personnel of a spacecraft’ at a later date. The PowerPoints from the Symposium are available on the UN Office of Outer Space Affairs (UNOOSA) website here.

The first presentation was from Elina Morozova, Head of International and Legal Service, at Intersputnik and was about the drafting history of the Rescue Agreement. The Rescue Agreement has the second highest rate of participation of the five major space treaties. The Outer Space Treaty currently has 107 parties and 24 signatories, the Rescue Agreement, by contract has, 96 parties and 23 signatories.[2] Despite its popularity it took a while for the Rescue Agreement to be negotiated and was subject to the shifting tensions and fortunes of the Cold War, despite part of the inspiration for the Rescue Agreement being ensuring that ‘space did not become another theatre of the Cold War’. There were a number of areas the US and the USSR disagreed on, such as whether any conditions should be applied to the return of astronauts however they eventually managed to come to the treaty we have today, this was in part spurred on by plans for human voyages to the Moon by both the Soviets and the Americans but also the Apollo 1 fire and the death of Vladimir Komarov in Soyuz 1, serving as unfortunate but timely reminders of the hazards of spaceflight. The presentation went into far more detail and therefore it is well worth checking out, the slides can be accessed here.

Niklas Hedman gave the second presentation which he entitled ‘Return to Sender’ and was about the role of the United Nations. His presentation can be accessed here. He said that the Rescue Agreement essentially breaks down into two operational aspects, the rescue or rendering of assistants to humans in distress and the return of non-crewed space objects. There has been no implementation of the first aspect of the Rescue Agreement, Hedman argued that the only possible mission that could have qualified was Apollo 13, and the Soviets did make an offer of assistance to the United States but it was done in a bilateral nature outside of the Rescue Agreement process. The return of space objects provisions has been used more frequently and Hedman reported that the first “recovery of “foreign” space objects the UN is aware of is Sputnik-IV” in September 1962, before the Rescue Agreement had been negotiated. Since then the UN has been notified of around 140 objects and 4,000 ‘small particles’, however he noted that they estimate that the UN is notified only about 50% of the time. The UN maintains a list of recovered objects that they are notified of and that can be accessed here. However there is a question as to how useful and necessary this process is today given the ease and speed of global communications, and Hedman did note that there has been a decline in notifications to the UN of the recovery of objects.

Alexander Soueck also gave a very interesting presentation focused on the practical experience from the European Space Agency’s ‘recovery’ of a spent fuel tank which had fallen upon India. He discussed some of the legal questions and issued involved, especially as the European Space Agency is a bit special as an intergovernmental organization with a legal personality and one of the two such organizations to have declared their acceptance of the Rescue Agreement. But overall he stressed that cooperation, coordination and communication were key and facilitated by the international legal framework provided by the Rescue Agreement. Furthermore, he pointed out that this was a worthwhile endeavour to recover a ‘burned up fuel tank’ as ESA was able to learn quite a lot from studying it which will help make spaceflight safer in the future. Finally, he says that this is an excellent example of international law as the embodiment and enabler of international cooperation in space activities – and that it provides a normative frame and procedural aspects for the recovery and return of space objects. His slides can be viewed here.

The next presentation was from Andrew Kuh, Legislation Manager for the UK Space Agency. Most of the presentation focused on the UK’s commercial spaceflight objectives which the UK government believes has significant growth potential which will be facilitated by the UK’s recently enacted UK Space Industry Act 2018. With regards to the Rescue Agreement and its future in the age of commercial human spaceflight Andrew posited that it may ultimately come down to who is responsible for paying. The suggestion being that while states are content to assume the financial burden for the provision of assistance and the facilitation of the rescue and return of astronauts in government or scientific service they may be less willing to render such aid to ‘space tourists’ or other commercial ‘actors’ in space. This view would go against the general spirit of humanitarianism that prevails throughout the Rescue Agreement.

José Monserrat Filho, Vice President of The Brazilian Association of Air and Space Law gave the penultimate presentation. He discussed the relevance of the Rescue Agreement today, ultimately arguing that the Rescue Agreement needs a ‘refresh’ so that the ‘sleeping beauty’ of space law[3] can awaken. There are a number of issues to address today, such as the growing ‘threat’ of ‘war in space’[4] but also the space debris issue that perhaps make the Rescue Agreement, and specifically the ‘rescue’ bit of the agreement, more relevant than ever before.

The final presentation was from Setsuko Aoki, Professor of Law at Keio University Law School in Japan. While I understand that her presentation came last because the subject was ‘the future of the Rescue Agreement’ I think it would have been better had it been given before or immediately after Alexander Soueck as the two do tie together quite well. Her presentation provided the more ‘academic’ overview of the utility of the Rescue Agreement as a ‘transparency and confidence building measure’ which Souceck provided practical evidence of. Her presentation is a tad dense to be summarised here but excellent and well worth checking out and the slides can be accessed here.

Overall the symposium was excellent and provided a good overview of an all too often overlooked treaty. These symposiums are always interesting, and I believe they are a useful part of the UNCOPUOS Legal Subcommittee sessions.

As I mentioned at the start I will aim to produce a blog post on the Rescue Agreement itself later on but my next post will be on the recent Legal Subcommittee session with a focus on the space mining agenda item, but while I have returned home the Legal Subcommittee is ongoing until 20 April so I will wait until the session is over to draft something on it.

 

[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) – see http://www.unoosa.org/res/oosadoc/data/documents/2017/stspace/stspace61rev_2_0_html/V1605998-ENGLISH.pdf

[3]A reference to – Frans G. von der Dunk ‘A Sleeping Beauty Awakens: The 1968 Rescue Agreement After Forty Years’ (2008) 34 J. Space L. 411 (and the fairy tale, obviously) – http://www.spacelaw.olemiss.edu/jsl/pdfs/back-issues/jsl-34-2.pdf

[4]See recent statements by President Trump and several senior US Air Force officials, though, of course, this has often been overblown by the media, space has always been a ‘strategic asset’ and place of military competition… but that’s a topic worthy of its own post and one I’m not really qualified to write (though I may give it ago… we are in the post-expert age after all…) And actually Teen Vogue, of all places, has a good overview of this issue https://www.teenvogue.com/story/experts-explain-new-cold-war-space-race

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