Abstract
The International Space Station is certainly one of the most astounding achievements of humankind in space. Especially from a legal point of view, the creation of the Intergovernmental Agreement (IGA) and its sub-instruments specifically for the ISS was a major success: the IGA was the first grand-scale multi-national legally binding space-related treaty drafted, ratified, and implemented by the major space faring nations since the drafting of the five UN Space Treaties roughly 20 years before. And still today, the legal framework of the ISS is a stand-alone legal system which can serve as model for other missions, as it refines and develops in an innovative way the rules laid out in the five UN Space Treaties and at the same time manages to coordinate and organize management, utilization, and financing between all the partners. This chapter intends to shed light on the complex legal system governing the ISS and to point out the novelties of the IGA-Structure in comparison with the conventional body of international space law.
TopBackground
As already mentioned, for a complex mission such as the ISS, there are multiple sets of legal and regulatory instruments applicable. Primarily, as the ISS is operated in outer space, an area beyond national jurisdiction where multiple sovereign nations interact with each other, public international law is applicable. This includes the more specific framework of international space law, relevant to activities in outer space. The IGA refers to these instruments expressis verbis (Article 5, 1998 IGA-Agreement). On a second layer, the IGA sets up a three-tier framework in itself for the ISS: The IGA features a number of substantial rules and was specifically tailored to cover the basic legal structure of the ISS. Additionally, it refers to two levels of subsidiary instruments, namely the memoranda of understanding (MOUs) and the implementing arrangements (IAs) (Article 4/2, 1998 IGA-Agreement). The IGA stipulates that these instruments shall provide more details where the IGA provides for the basics, but more precise rules on the implementation are necessary (Article 4/2, 1998 IGA-Agreement) (for details on MOUs and IAs see chapter below). On a third layer, finally, there is the respective national law of the partners to the mission, which can play an important role on their respective modules and in other regards.
Key Terms in this Chapter
ISS: The International Space Station is a manned mission in outer space which is permanently inhabited by a crew who conducts scientific research and maintenance of the mission.
Liability: Refers to the state of having legal—often financial—obligations towards someone as a result of a specific action, in the context of space law due to damages occurring. In Space Law the terms liability and responsibility need to be strictly differentiated.
International Space Law: Is the body of rules that governs activities in Outer Space and includes inter alia the five UN Space Treaties.
IA: Implementing Arrangements, in the context of the ISS are subordinated instruments connected to the MOUs that implement what is provided for in the MOUs.
Jurisdiction: Means the power to legally regulate, ergo to create laws.
Intellectual Property: Is ownership over intangible property like thoughts, ideas and inventions, or for example the industrial design of a space object.
MOU: A Memorandum of Understanding is a—traditionally non-binding—agreement between partners. In respect to the ISS, four MOUs have been established, each between NASA and one of the other partners to regulate in more detail what the IGA provides for. However, these MOUs have been drafted to entail legal obligations.
Public International Law: Is the combined set of rules that govern the relations between States and International Organizations among themselves and with individuals. Sources of International Law are defined in Article 38 of the ICJ Statute and includes treaties, customary law, general principles but also judicial decisions and teachings of the most highly qualified publicists.
IGA: The Intergovernmental Agreement is an International Treaty between Canada, Governments of Member States of the European Space Agency, Japan, Russia and the US establishing specific rules applicable to the ISS. It is the core piece of the legal framework of the ISS and serves as an over-arching umbrella. It defines the rights and obligations of the partners.