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A New Chapter of Space Law: The Agreement on the Rescue and Return of Astronauts and Space Objects
Published online by Cambridge University Press: 21 May 2009
Extract
By the end of 1967, space diplomacy proved capable of accomplishing an international agreement at the speed of space travel itself. On the very last day before the end of its 22nd Session, the United Nations General Assembly was confronted with an Agreement on the Rescue and Return of Astronauts and the Return of Objects Launched into Outer Space and almost simultaneously adopted a resolution in which it “commends” the Agreement. What a United Nations Committee had not been able to produce in five years of hard work, emerged suddenly from private negotiations between the United States and the Soviet Union. Although many of the Agreement's particular provisions submitted by the two space powers had their origin in earlier texts discussed in the UN Outer Space Committee and its legal subcommittee, the fact remains that it was a bilateral draft which was rushed through the multilateral arena.
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References
1 The UN Committee on the Peaceful Uses of Outer Space, created by the General Assembly in 1961 at the joint initiative of the USSR and the USA, is the negotiating framework for the legal, scientific and technical aspects of Outer Space activities. It runs two subcommittees; one for the legal, the other for the scientific and technical work.
2 Compare doc. A/AC. 105/37 of 14 July 1967.
3 Especially on Art. 6 (International Organizations), and on the Return Provisions, notably those contained in Art. 4.
4 “The draft of this agreement (concerning the rescue of astronauts), since it is regarded as very urgent, was put the first on the agenda (of the legal subcommittee of the UN Outer Space Committee) at the insistence of the Soviet delegation. It is generally known that the great cause of exploration of outer space has already led to casualties. Hero of the Soviet Union Vladimir Komarov died tragically when he was returning to the Earth after an orbital flight. Three American spacemen burned alive in a rocket even before blast off. Also known in practice are cases when there were substantial difficulties in ensuring the successful return of the astronauts to the Earth. For instance, American astronaut Carpenter, having circumnavigated the Earth three times on May 24, 1962, landed on water quite far from the place where he was expected by rescue craft, and this as a result of the faulty work of the spaceship's mechanisms. The spaceman had to spend three hours on the high seas before he was found and raised aboard a ship. This fact alone is an indication of the vital nature and importance of the problem which was discussed in the sub-committee.”
Piradov, Head of the Soviet Delegation UN Legal Sub-committee on Outer Space, in Pravda, 08 21, 1967.Google Scholar
5 Compare the Soviet and the American proposals in doc. A/AC. 105/37 Annex 1, P. 19.
6 See Sauveplanne, Freedom and Sovereignty in Air- and Outer Space, Netherlands International Law Review 1965, pp. 238–239.Google Scholar
7 General Assembly Resolution 1962 (XVIII), paragraphs 7, 8 and 9.
8 General Assembly Resolution 2222 (XXI).
9 Although the Preamble refers to “astronauts”, the various articles (I, II, III, IV) refer to “personnel”. The latter—broader—term was taken from an Australian-Canadian proposal in order to make it clear that not only astronauts but everyone on board has a right to assistance.
10 Data received by the Secretary General pursuant to General Assembly resolution 1721 B (XVI) or art. XI of the Outer Space Treaty are reproduced in regular United Nations documents.
11 Compare doc. A/AC. 1O5/C. 2/L.28.
12 Compare Reis, United States Delegate, doc. A/AC. 1O5/C. 2/SR.86, (provisional), p. 21.
13 Goldberg, US Ambassador to UN, Hearings, CFR US Senate March 7-April 12 1967, p. 27 and pp. 155–156.
14 The wording used in the Outer Space Treaty is “in the event of accident, distress or emergency landing”; throughout the Agreement the notion of “unintended landing” was added.
15 Compare art. 4 of the Agreement with art. V of the Outer Space Treaty notably “on the territory of an other party or on the High Seas”.
16 See Art. 6 and infra p. 18.Google Scholar
17 See General Assembly Resolution 2312 (XXII)
18 For the Netherlands: Wet van 13 januari 1965, Stb. 40.
19 Compare A/AC. 105/PV.52 p. 66 and see the Message of President Johnson to the Senate in which he said that the Treaty requires that “If an astronaut lands on another country's soil, he must be returned safely, promptly, and unconditionally,” Senate Executive D, 90th Congress, 1st Session, February 7, 1967.
20 A/AC. 105/C. 2/SR.89, p. 6 and SR.87 p. 10.
21 Compare Outer Space Treaty, art. VIII.
22 See, for example, the statement by Japan, which on the strength of the Preamble of the Agreement and of art. IV of the Outer Space Treaty took the view that “No agreement on rescue and return could place an obligation on a Contracting Party to recover and return a space object intended primarily for the development of a bombardment system, including FOBS, to be placed into any kind of orbit, whether fractional or not fractional”. (A/AC. 105/C.2/SR.86, p. 11). It seems very unfortunate indeed that the United States recently declared itself in agreement with the Soviet interpretation of the Outer Space Treaty to the effect that the Fractional Orbit Bombardment System is not a violation of that Treaty (See McNamara, News Conference at Pentagon, November 3, 1967). This interpretation unduly emphasizes the word “around” in art. IV of the Outer Space Treaty, reading “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons or mass destruction…”
23 In 1963 the Soviet Union unsuccessfully proposed to insert that “space vehicles which had aboard devices for the collection of intelligence information in the territory of another state should not be returned”. Compare also Goldberg before CFR, US Senate, March 7, 1967, p. 156, stating: “The Soviets had at various times appeared to insist on language that might be taken to limit the humanitarian obligation to return an astronaut. We thought it incompatible with the spirit of the Treaty, which describes astronauts as “envoys of mankind” to suggest in any manner that detention could be envisaged or tolerated.” For a long period of time, Soviet insistence on a provision along the lines of the above proposal blocked all progress on the text of the Agreement.
24 Strikingly consistent with this development is the recent approval by the USSR of the text of art. III of the Non-Proliferation Treaty, as well as the Russian interpretation of that Article.
25 Principle 5, last sentence.
26 Glaser (Romania) A/AC.105/C.2/SR.66, p. 14.
27 Morozov (USSR) A/AC.105/C.2/SR.Gy, p. 3 (and 6); also see SR. 70, p. 3.
28 See Outer Space Treaty Art. VI.
29 Ibid., Art. XIII.
30 Including the provision that expenses incurred in fulfilling obligations to recover and return space objects shall be borne by the launching authority.
31 One would assume that such Declarations should be deposited following the procedure of Article VII, paragraph 2.
32 On April 22 1968 the Agreement was opened for signature in London, Moscow and Washington and signed on that date by more than 40 countries including the Soviet Union, the United Kingdom and the United States.
33 Compare A/AC. 105/37, P. 4–8.