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THE APPLICABILITY of the NORMS of EMERGENCY RESCUE of ASTRONAUTS to SPACE TOURISTS Author The King’s Student Law Review Title: THE APPLICABILITY OF THE NORMS OF EMERGENCY RESCUE OF ASTRONAUTS TO SPACE TOURISTS Author: Tanvi Mani Source: The King’s Student Law Review, Vol. 7, No. 1 (2016), pp. 28-39 Published by: King’s College London on behalf of The King’s Student Law Review All rights reserved. No part of this publication may be reproduced, transmitted, in any form or by any means, electronic, mechanical, recording or otherwise, or stored in any retrieval system of any nature, without the prior, express written permission of the King’s Student Law Review. Within the UK, exceptions are allowed in respect of any fair dealing for the purpose of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act 1988. Enquiries concerning reproducing outside these terms and in other countries should be sent to the Editor in Chief. KSLR is an independent, not-for-profit, online academic publication managed by students of the King’s College London School of Law. The KSLR seeks to publish high-quality legal scholarship written by undergraduate and graduate students at King’s and other leading law schools across the globe. For more information about the KSLR, please contact: [email protected]. ©King’s Student Law Review 2016 THE APPLICABILITY OF THE NORMS OF EMERGENCY RESCUE OF ASTRONAUTS TO SPACE TOURISTS THE APPLICABILITY OF THE NORMS OF EMERGENCY RESCUE OF ASTRONAUTS TO SPACE TOURISTS Tanvi Mani* The rescue of Space Tourists is a significant issue that has been effectively excluded from the domain of Outer Space Law and policy. The absence of any deliberation or discourse on the subject can be attributed to the general perception of the impossibility of such a situation, requiring the rescue of private individuals in Outer Space, arising in the near future. The Virgin Galactic Space flight, the world’s first commercial space venture, is scheduled for take-off shortly. The question of the possible need for the regulation of commercial recreational activities in Outer Space therefore arises. More pertinent however is the concern of how and by whom the rescue of such Space Tourists would be effectuated. This paper questions whether the existing norms of emergency rescue of astronauts can be made applicable to Space Tourists, and if not, seeks to propose the formulation of an alternate instrument that would regulate the nature, extent and scope of obligations that rests upon the Nation engaged in such a rescue operation. 1. THE HISTORICAL CONTEXT OF THE RESCUE AGREEMENT, 1968 The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of objects launched into Outer Space was the second treaty drafted by the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS)1.The agreement was formally adopted via The United Nations General Assembly Resolution 2345(XXII) which, despite not being formally binding upon countries, was recognized as an act of collaborative espousal of the common goal of peaceful Outer Space study and exploration. Subsequent to this resolution, The Agreement was entered into force on 3rd December 1968.2 The history of this Agreement can be traced back to a 1959 report of the Committee on the Peaceful Uses of Outer Space which for the first time brought to the fore the impending need for the establishment of a system to effectuate the rescue of astronauts and provide them with necessary assistance in times of distress. The rationale provided within this report, for the institution of such a system, formed the crux of the Rescue Agreement, which has currently been ratified by 92 countries and has 24 signatories.3 Paragraph 21 of the 1959 Report brought to attention the possibility of accidents * The Author is a student currently pursuing her BA, LLB (Hons) Degree at The West Bengal National University of Juridical Sciences, Kolkata, India. 1 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, US-Gr Brit-USSR, Apr 22, 1968, 19 UST 7570 [hereinafter Rescue Agreement] 2 United Nations Treaties & Principles on Outer Space & other related General Assembly Resolutions at v, UN Doc ST/SPACE/ 11/Rev I UN Sales No 05 1 90 (2005) 3 K Hodgins, 'Procedures For Return Of Space Objects Under The Agreement On The Rescue Of Astronauts, The Return Of Astronauts & The Return Of Objects Launched Into Outer Space', in Proceedings of United Nations International Institute of Air and Space Law Workshop on Capacity Building in space law (United Nations, New York 2003) 59 28 King’s Student Law Review occurring during the re entry and landing of both manned and unmanned space vehicles into the earth’s atmosphere. This drew the focus towards the imminent requirement for a multilateral Agreement that sought to define uniformly applicable norms of recourse or redress in case of an unintended landing within the territory of another State or on the high seas. Included within the substantive provisions of such an Agreement was the return of the vehicle to the launching state, and in the case of a manned vehicle, the speedy return of personnel.4 In addition to this, paragraph 74 of the report highlighted the need for appropriate arrangements to be made to restore the equipment and instruments recovered by the country within whose territory this accidental landing may have occurred to the launching State5. The Super Powers at the forefront of the Space Race agreed on the need for a comprehensive set of binding norms that would govern the rescue of space objects as well as astronauts in times of distress. They subsequently realized that it was in their best interest to take the initiative for the formulation of such a legally binding instrument. The exchange of letters between the U.S.S.R and the United States marked the beginning of the legal regime in Outer Space and lay the foundations for the construction of a comprehensive agreement between nations.6 The 1963 Extraordinary Administrative Radio Conference, held in Geneva, adopted Resolution 2A which described in great detail the handling of radio communication in emergency situations caused by distress to space vehicles.7 The awareness created through this resolution provided the necessary impetus for the multilateral negotiations that soon followed, which eventually culminated in the inclusion of a particularly relevant provision in the 1963 Declaration of Principles.8 Principle 9 of the Declaration provided that all States shall recognize the role of astronauts as the envoys of mankind in Outer Space and render unto them all possible assistance in the event of distress or emergency situations.9 The Declaration of Principles eventually became a part of customary international law and was acceded to by all nations. The three major elements that contributed to the formulation of an international agreement on the Rescue of Astronauts were defined within the 1962 exchange of letters between the United States and the U.S.S.R. These principles proclaimed that Astronauts in distress on earth should be assisted to the fullest possible extent; that Astronauts in Outer Space should be afforded an equal extent of assistance; and lastly, that there exists a universal obligation on all nations to furnish the necessary information that would aid in the effectuation of such assistance.10 The idea of providing assistance to the fullest possible extent, without a specific reference to “events of distress, emergency or accident” reflected a wider ambit of the obligation beyond the parameters laid out within Article V of the Outer Space Treaty.11 The Outer Space Treaty was entered into force within a politically charged atmosphere, with both the U.S and the U.S.S.R actively seeking to gain footing in the race for Outer Space. Immediately after it came into force the United States, the U.S.S.R as well as other member nations of the COPUOS recognized the need for a subsequent treaty which would define the specific obligations of nations to provide assistance to astronauts and ensure the safe return of space objects that landed within their 4 Manfred Lachs, Tanja L Masson-Zwaan and Stephan Hobe, The Law Of Outer Space (Martinus Nijhoff Publishers 2010) 87, 88 5 ibid 6 Gyula Gál, Space Law (AW Sijthoff 1969) 211, 213 7 Lachs et al (n 5) 8 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII), para 2, UN Doc. AlAC 105/5721 Rev 1 at 37 (Dec 13, 1963) [hereinafter Declaration of Principles] 9 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, G.A. Res. 1962 (XVIII), para 9, UN Doc. AlAC 105/5721 Rev 1 at 37 (Dec 13, 1963) [hereinafter Declaration of Principles] 10 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of all States, Taking into Particular Account the Needs of Developing Countries, GA Res 511122, ~ 2, UN Doo NRES/511122 (Feb 4, 1997) 11 Article V, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan 27, 1967, 18 U.S.T. 2410, TIAS No 6347, 610 UNTS 205 29 THE APPLICABILITY OF THE NORMS OF EMERGENCY RESCUE OF ASTRONAUTS TO SPACE TOURISTS territory due to an unintended mishap. Consequently an elaborate and refined set of principles were formulated and bound together in a comprehensive Agreement that came into effect in the year 1968.12 A. THE RESCUE OF ASTRONAUTS DUE TO THEIR STATURE AS ENVOYS OF MANKIND Astronauts are perceived as apostles of the internationally endorsed mandate of the peaceful exploration and use of Outer Space.
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