Shivam Krishna

Abstract: Designed for state-sponsored spaceflight, the Rescue Agreement has been outpaced by commercial human spaceflight. This has been coupled with the interpretative inclusion of private actors within its scope of protection, while leaving the duty to rescue with States, producing a capability–obligation asymmetry. This Article makes the case for a Dual Obligor Framework extending rescue obligations to technologically and financially capable private operators alongside States.

I. INTRODUCTION

In 2024, NASA astronauts Sunita Williams and Barry Wilmore remained aboard the International Space Station after their Boeing Starliner spacecraft was deemed unsuitable for returning them to Earth. Their return and rescue were carried out by SpaceX Crew Dragon. There are two important things to note about this incident. First, the spacecraft that transported the astronauts to orbit was privately developed, manufactured, and operated. Second, the vehicle that brought them back was also privately developed, manufactured, and operated. Both the transport and rescue were carried out by private actors, and the State was confined to an authorising and supervisory role. This reflects a broader development in the space industry, in which private actors are increasingly taking a share at least as large as that of states, if not more.

International space law emerged during the 1960s and 1970s as a body of inter-State agreements concluded under the auspices of the United Nations. Its foundational instrument, the 1967 Outer Space Treaty (“OST”), provides that the exploration and use of outer space are the province of all mankind and assigns to States international responsibility for national space activities, whether carried on by governmental agencies or non-governmental entities. The treaties that followed elaborated particular aspects of this framework. Among these instruments is the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (“Rescue Agreement”). It has been in force since 1968, operationalising Article V of the OST, which describes astronauts as “envoys of mankind.” The Rescue Agreement requires States Parties to render “all possible assistance” to the personnel of a spacecraft in distress. Its operative duties, to notify, to rescue, and to return, are addressed exclusively to States, wherein Article 6 defines the “launching authority” as a State or an intergovernmental organisation responsible for launching.

The scope of the Agreement’s protection has since attracted scholarly attention. It has been argued that the meaning of the phrase “personnel of a spacecraft” in Article 2 of the Rescue Agreement must be construed purposively, as required by Article 31(1) of the Vienna Convention on the Law of  Treaties (“VCLT”), to include private astronauts and spaceflight participants, making them protected beneficiaries under the rescue regime.

Contemporarily, commercially operated, manned and unmanned spacecraft transport astronauts under national authorisation systems, creating the dilemma of whether rescue capabilities, requirements and treaty obligations remain coherently coupled. This paper contends that the Rescue Agreement reflects a capability-obligation asymmetry, in which private actors have been interpretively included as beneficiaries. Still, an equivalent development of responsibility has not accompanied this. Part II of this paper outlines the State-centric structure of the Rescue Agreement; Part III examines the interpretive inclusion of private beneficiaries; Part IV identifies the asymmetry; Part V outlines the Dual Obligor Framework; and Part VI, finally, concludes.

II.  THE STATE-CENTRIC ARCHITECTURE OF THE RESCUE AGREEMENT

The institutional design of the Rescue Agreement is based on an implicit structural assumption, namely, that the actors capable of carrying out rescue activities in outer space would be States. This assumption, in turn, is based on the technological and institutional realities of the 1960s, when the treaty was negotiated against a background of exclusive State control over launch and crewed missions. Human spaceflight during the Cold War was conducted exclusively by national governments, particularly the United States and the Soviet Union.

Dembling and Arons stated in 1968 that the Agreement was aimed at defining rescue cooperation methods by which sovereign States, amid the Cold War, could commit to the mutual preservation of human life in space, irrespective of the nationality of those imperilled. This Humanitarian purpose is the defining feature of the Rescue Agreement. Article V of the OST, which the Rescue Agreement operationalises, describes astronauts as “envoys of mankind” and obliges States to render them all possible assistance. This is familiar with the law of maritime rescue, which places the duty to preserve life above considerations of reciprocity and national interest.

This humanitarian character, however, is expressed entirely through obligations between States. The Rescue Agreement’s operative provisions address themselves exclusively to State parties: it is States that must notify a distress event, States that must take all possible steps to effect rescue, States to whom personnel and recovered objects are returned, and the cost-recovery mechanism is also established between States. Article 6 confirms this by defining “Launching Authority”, the entity to which all these duties are owed, as a State or an Intergovernmental organisation, to the exclusion of private operators. This absence of private company obligations is deliberate. It mirrors the structure of Article VI of the OST, which requires states to bear responsibility for national activities in outer space, including the conduct of non-governmental entities, and to authorise and supervise such activities. The Rescue Agreement clearly operates under such a structure, in which States are the sole subjects of international obligations. This is in accordance with Article 31(1) of the VCLT, which provides that a treaty is to be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context, including their object and purpose. The ILC has reaffirmed that such an interpretation cannot “go beyond what is reasonably supported by the words and structure of the treaty.” Subsequent doctrinal assessments also identify the Rescue Agreement as an inter-State humanitarian device situated within the classical paradigm of State responsibility. 

Therefore, within the rules of treaty interpretation, the Rescue Agreement created a system of inter-State cooperation centred upon humanitarianism and is state-centric. These rules contain no provisions that create direct horizontal obligations between non-State parties. Any argument for expanding functional responsibility beyond States must be consistent with the linguistic distribution of obligations and the accountability structure established by Article VI of the OST.

III. INTERPRETIVE INCLUSION OF PRIVATE BENEFICIARIES

The state-centric character of the Rescue Agreement governs the allocation of duties. It does not determine who is entitled to benefit from them. That question depends upon the meaning of the phrase, “personnel of a spacecraft” in Article 2, which the Agreement, like the OST, leaves undefined. Initially, when human spaceflight was limited to Government entities, and the persons aboard a spacecraft were Government astronauts/crew, the scope of “personnel of spacecraft” seldom required examination. Commercial human spaceflight has now unsettled that assumption. When a spacecraft carries privately employed crew/astronauts, or fare-paying spaceflight participants, without governmental affiliation, it becomes necessary to ask whether such persons are “personnel of a spacecraft”. For if they are not, then no State is under an obligation to ensure their rescue.

It is for this reason that the scope of its protected “personnel” has been the subject of a continuing scholarly scrutiny. Mark Sundahl has argued that “personnel of a spacecraft” should encompass private astronauts and spaceflight participants engaged in commercial missions. Sundahl argues that a restrictive approach, limiting it to government-employed astronauts, would be inconsistent with the treaty’s humanitarian object and purpose and with the functional reality of spaceflight today. Marcus Schladebach makes this argument by referring specifically to VCLT Article 31 and noting that there is simply no language limiting it to state personnel.

Under Article 31(1) of VCLT, treaty interpretation must consider the ordinary meaning of the terms in their context and in light of the treaty’s object and purpose. Article 2 refers to the “personnel of a spacecraft,” without qualification as to country, employment status, or governmental association. The ordinary meaning of “personnel” is broad and does not inherently restrict protection to State-employed astronauts. Furthermore, the usage of the term “personnel” rather than “astronaut”, and the omission of the phrase “envoys of mankind” found in Article V of the OST, is also significant to note. The phrases “Astronaut” and “envoy of mankind” carry a narrower connotation and invoke the idea of a professional, State-sponsored spacefarer. “Personnel,” by contrast, bears a functional meaning and carries no connotation of government service, such that the phrase “personnel of a spacecraft” has been read to encompass all persons on board. The Agreement’s adoption of the broader functional term has been read as deliberately declining to confine protection to government astronauts. The object and purpose of the Rescue Agreement, as stated in its preamble and its linkage to Article V OST, is humanitarian protection and international collaboration in instances of crisis for the preservation of life. This purpose will not be served by an interpretation that would rescue those aboard a governmental vehicle while leaving the lives of those aboard a private vehicle to fate.

Therefore, the majority of scholars now concur that Article 2 encompasses both commercial crew members and spaceflight participants. The effect of this interpretation is to recognise a category of private beneficiary: a privately employed crew member or commercial passenger who, though unconnected to any governmental programme, falls within the protective scope of the rescue regime.

This interpretative shift, however, is confined to the group of beneficiaries rather than the distribution of duties.  The Rescue Agreement’s operational provisions continue to allocate obligations solely to States Parties.  Interpretation has consequently expanded the personal scope of protection without altering the structural distribution of duty.

This imbalance is doctrinally important.  Treaty interpretation may help clarify the meaning of “personnel,” but it cannot create new categories of treaty obligors absent textual support or subsequent agreement of the parties. The International Law Commission has emphasised that interpretation must not cross into amendment. Thus, while purposive interpretation has brought private actors within the protective ambit of the Rescue Agreement, it has not, and could not, alter the treaty’s State-centric obligation structure.

The result is a regime in which commercial actors may be beneficiaries of rescue protection. Yet, these commercial actors, who are also capable of effecting rescue, operate outside the direct scope of treaty obligations. The implications of this structural asymmetry are examined in the following section.

IV.  THE CAPABILITY-OBLIGATION ASYMMETRY

The assumption of the Rescue Agreement that only States have the financial and technological capability to participate materially in spaceflight no longer holds.

This shift is most visible in launch capability. In the contemporary space sector, commercial players have played an increasingly significant role in worldwide launch services. Data published by the Federal Aviation Administration’s Office of Private Space Transportation and other launch databases reveal that worldwide orbital launch activity has risen significantly, with private providers accounting for a greater number of launches each year. As illustrated in Figure 1, privately operated launch systems performed more than half of global launches by 2023.

The expansion of commercial capability extends to human spaceflight itself. Since 2020, privately developed spacecraft have transported astronauts to low Earth orbit under national authorisation regimes such as NASA’s Commercial Crew Program. In addition, commercial missions have carried private individuals into space as spaceflight participants or “space tourists.” Suborbital flights conducted by companies such as Blue Origin and Virgin Galactic, together with privately funded orbital missions organised through commercial providers, have enabled dozens of private individuals to travel beyond Earth’s atmosphere in recent years. Industry reports suggest that more than one hundred private individuals have now participated in commercial human spaceflight missions.

This capacity becomes decisive for in-orbit rescue. When a crew is stranded in orbit, retrieving them requires a crewed spacecraft capable of rendezvous and docking. Two of the four actors presently capable of this are private operators. In such situations of orbital distress, the entity with the most immediate technical capability to conduct rescue operations may be a privately operated spacecraft or launch provider operating under national authorisation regimes. Although these private operators possess the capability equal to that of the State programmes, the State operator is under an obligation to act, the private actor is not. This divergence produces a capability–obligation asymmetry within the present regime under the Rescue Agreement. Interpretation under Article 31 of the VCLT cannot resolve this gap. As Part III explained, purposive interpretation can include private actors as beneficiaries, but cannot impose obligations on private operators.

This asymmetry is not only formal. As commercial human spaceflight increases, the scope and frequency of potential rescue scenarios will expand accordingly. Under such circumstances, reliance on interpretative incorporation of private actors as beneficiaries of the rescue regime becomes inadequate. Purposive construction can inform a private actor that, in essence, they fall within the regime’s protection. However, it cannot tell them who is obligated to come to their aid, on what terms they must do so, or within what time they must act. It merely signifies recognition, not operational certainty.

For instance, Article 1 of the Rescue Agreement requires States to immediately notify the launching authority and the UN Secretary-General of any distress event. In the Boeing Starliner emergency, notification was conducted through NASA operational channels and public press releases, not through any mechanism in the Rescue Agreement. None of the States filed an Article 1 notification with UNOOSA. The Agreement’s notification architecture, predicated on inter-State diplomatic communication, is unsuited to the real-time operational tempo of modern spaceflight. Moreover, the growing number of privately operated missions creates a rescue burden that exceeds the practical capability of States acting alone. This mismatch creates a structural vulnerability in the existing regime. Private operators undertaking missions involving crews or spaceflight participants must assume substantial operational risk without reliable assurance that rescue obligations will be discharged in the event of distress.

The current regime lacks an allocation of responsibility to the capable private operators on whom effective rescue increasingly depends. This gap cannot be resolved by treaty interpretation. It is a structural lacuna, curable only by amending Article 6 of the Rescue Agreement or, more practically, by a protocol that obligates private operators through the underlying principle of Article VI of the OST. The next section explains how to move forward.

V.  IMPLEMENTING THE DUAL OBLIGOR FRAMEWORK

A.  Amending Protocol and COPUOS Guidance

Reform of the rescue regime need not require reopening the Rescue Agreement itself. A strategy that depends on amending the Rescue Agreement itself is highly unlikely to succeed, since none of the core space treaties has been amended since the corpus was concluded. Instead, operational clarification can occur through a supplementary protocol supported by interpretive guidance adopted within the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS). Amending Protocols are widely used within international treaty regimes to clarify implementation mechanisms without altering the foundational obligations of the original agreement.

The Dual Obligor Framework is accordingly designed to operate alongside the Rescue Agreement through two complementary instruments: a binding supplementary protocol and a body of interpretative guidance adopted through COPOUS. This protocol supplies the framework’s legal core. A protocol to the Rescue Agreement could clarify that rescue obligations may be discharged operationally through authorised private operators acting under State supervision, pursuant to Article VI of the OST. Such a protocol would establish rules governing indemnification, the coordination of distress notifications, and the allocation of financial responsibility in rescue operations involving both commercial and government-funded missions.

COPUOS guidance will complement the protocol. It will encourage and assist States in incorporating these principles into national regulatory frameworks, such as licensing conditions, governing commercial human spaceflight. Soft-law instruments developed through COPUOS have historically played a central role in the progressive development of international space law, such as the adoption of the Long-Term Sustainability Guidelines and the Space Debris Mitigation Guidelines. Though formally non-binding, they have substantially shaped State conduct and national legislation, making their guidance binding for private operators.

The combination of a binding protocol and coordinated COPUOS guidance allows gradual adoption through State practice while preserving the stability of the existing treaty regime. This mechanism is incremental, not immediate, but ensures that the States are able and willing to adapt to this change without jeopardising their pre-existing obligations. This approach is not without precedent. The Nagoya Protocol illustrates the same. The Convention on Biological Diversity (“CBD”) had already established the principle of sovereign control over genetic resources and sharing of benefits from their use. The Nagoya Protocol not only operationalised these obligations but also established an Access and Benefit Sharing regime, now followed by more than 140 countries. Herein, guidance for implementation in national regulatory regimes is provided by the Meeting of Parties and its legal and technical sub-committees, which have made even private research and access groups subject to the same regulations on use of genetic resources.

However, the framework must confront two concerns. First, there is the possibility of partial participation, wherein major spacefaring States remain outside the scope of the protocol, leaving protective gaps. Second is divergent implementation by States of national-level regulatory frameworks and conditions. Although these concerns are real, they are not novel, and precedents above have been successful despite facing them.  Furthermore, the framework’s design, as explained in the following subparts, will adequately address these concerns.

B.  Article VI of the OST-based Implementation and Capability-based Obligations.

Operational implementation of the Dual Obligor Framework occurs through the regulatory architecture established by Article VI of the OST, which provides that States “bear international responsibility for national activities in outer space… whether such activities are carried on by governmental agencies or by non-governmental entities.” Through this mechanism, States remain internationally responsible while imposing operational obligations on private actors through national licensing systems.

States already regulate private spaceflight in a way similar to what the framework would require. An American company cannot launch a vehicle, or bring one back, without a licence from the Federal Aviation Administration. The Commercial Space Launch Act allows the Administration to grant a license only after the operator has passed a safety review and demonstrated its ability to meet its liabilities. The licence carries conditions, and it can be suspended or withdrawn. Britain does the same under the Space Industry Act 2018; the Civil Aviation Authority licenses spaceflight and requires both safety compliance and insurance. France has operated a comparable system since its 2008 space operations law, as has a growing number of States. This practice has been recommended by the United Nations General Assembly itself.

What these regimes have in common is the thing the framework needs. Each already grants a State condition access to space on safety, financial, and operational terms, set out in the licence under which it supervises its operators under Article VI of the OST. A duty to take part in rescue operations is a condition of the same category and should be included to the extent applicable.

Under the proposed framework, rescue participation obligations would apply only to private operators possessing demonstrable technological and financial capability to assist in rescue operations. This would include, but not be limited to, spacecraft capable of rendezvous and docking or launch systems capable of emergency deployment. Limiting obligations to capable actors ensures that responsibilities remain proportionate to operational capacity. The functional logic of such allocation was anticipated in the Draft Convention on Manned Space Flight developed by the International Institute of Space Law, which recognised that private actors would increasingly participate in crewed missions.

C.  Incentives and Structural Concerns

The Dual Obligor Framework (DOF) is not merely an obligation-imposing regime but a reciprocal institutional bargain that benefits private actors. This reciprocity of benefits to the private actors and participating states addresses the concerns left open in sub-part A. An operator that benefits from the regime has reason to operate within a State that complies with it, which, in turn, encourages States to adopt it.

First, participating operators obtain guaranteed indemnification under the COPUOS guidelines and the protocol, allocating rescue costs to the launching authority or the operator responsible for the distressed mission. Rescue operations, with financial and operational risks, may require diverting operational spacecraft, preparing for emergency launches, or extending life-support capacity aboard orbital platforms. An indemnification regime must exist; treating rescue as humanitarian without addressing these risks is unsustainable. However, this indemnification is subject to the risks involved in such a rescue operation; the operational costs will be borne by the rescuer only to the extent of its ordinary operational capabilities. Any extraordinary and unexpected costs shall be borne by the operator responsible for the distressed mission, or its launching authority, as the case may be. A similar cost division already occurs in liability frameworks. Under the Commercial Space Launch Act, an operator insures only up to the maximum probable loss it could foreseeably cause, and the State indemnifies anything beyond.

Second, the framework provides operational security, which runs in both directions. Defining the parameters of a rescue obligation in advance prevents States from imposing unilateral conditions on privately conducted rescue operations. A defined duty is limited and more predictable than an otherwise open-ended expectation, ensuring stable operations. This also protects the operators in their capacity as a potential subject of rescue. Part IV explained that an operator bears the risk of distress without a reliable assurance of rescue. By joining the framework, an operator obtains that precise assurance, wherein not only the Government but also private actors will be obliged to rescue them. This progressively increases the circle of operators willing to adopt the framework and, hence, the States that are part of the regime.

Third, operators receive reputational and regulatory advantages through a DOF (Dual Obligor Framework) Certification Mark administered by COPUOS, which signals compliance with internationally recognised rescue standards. In an upcoming commercial sector, in which clients, insurers, and investors alike shape their preferences based on safety reputation, such certification carries a tangible advantage. The mark has a close counterpart in commercial aviation. The International Aviation Transport Authority (“IATA”) Operational Safety Audit certifies that an airline meets an agreed-upon safety standard, administered by the industry’s international body. It is voluntary in name, yet a practical condition of trade required for IATA membership, for the global alliances, and most code-shares. An airline without it can still fly, but it is locked out of IATA membership, the three global alliances, and a large share of the partnerships that let an airline plug into the mainstream international network. The COPUOS mark would work the same way: an internationally administered certification of compliance that, in a market alert to safety, any major operator cannot afford to lack.

Three structural objections still merit direct answers. First, although international law regulates States rather than corporations, the framework channels obligations through Article VI (OST) authorisation regimes, ensuring that States remain internationally responsible for private conduct. Second, rescue duties apply only to technologically and financially capable operators, preventing disproportionate burdens on smaller actors. Third, potential fragmentation of national implementation is mitigated through the supplementary protocol and coordinated COPUOS guidance, which establishes principles and regulations based on a common template set by the framework itself. Furthermore, to attain the DOF certification mark, operators must comply with minimum requirements ensuring no substantive fragmentation.

VI. CONCLUSION

This paper has asserted that, to close the structural inadequacy in the current framework, the rescue regime must be reconceptualised through a Dual Obligor Framework, in which technologically and financially capable private actors are integrated into the existing State-centred structure of international space law. In this way, the framework proposes a principled approach to the problem, in which beneficiary protection is tied to conditional operational responsibility, and this relationship is bolstered through indemnification and other institutional arrangements. While the institutional details need further deliberation, the proposed framework provides a foundation for aligning humanitarian obligations under the rescue agreement with the realities of Modern Space Operations.

Shivam Krishna is a third-year B.A. LL.B. (Hons.) student at WBNUJS. He closely follows geopolitics, governance, and political philosophy, with a particular interest in how institutions and power shape outcomes.