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Implications of creating an ISSA
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Posted by Adam Manning () at 10:56 GMT on 24 Jun 2001


These are notes on the Inter-Governmental Agreement defining the relationship between the countries building the ISS written from a lawyer's perspective. The aim is to consider what practical problems the creation of an International Space Station Authority (ISSA) would pose. The text goes through the IGA article by article and to fully understand these comments, please have a copy of the IGA top to hand. This can be obtained from the International Space Station Congress website.

Article 1 Para. 3

Partner states acquire rights to use the station by providing flight elements for the station. Would an independent space station authority (ISSA) want to change this? The ISSA would be in a much stronger position over station operations if the majority or all of the flight elements (such as launches to the station) were no longer provided by state-governed bodies. Partner states will also want to be compensated for losing these rights (for example by free use of station facilities for a certain duration).

Article 5 Para. 2

If an ISSA is set up then thought will have to be given to whether it should take control of the elements of the station registered under the Registration and Liability Conventions. It is unlikely that a non-state body such as an ISSA can register or take responsibility for items under these Conventions and ultimate control will remain with the Partner states. This may reduce the independence of the ISSA.

Article 6 Para 1.

Again, will ownership of the various elements of the station have to be altered from the Partner states to the ISSA?

Para 4.

This prevents ownership or transfer of owernship of the elements of the station without the approval of Partner states. Prima facie, this suggests the decision to appoint an ISSA will have to be unanimous if the ISSA is intended to actually own the station.

Article 9 Para 3(b)

This is a very difficult section as in essence it seems to be saying that if a Partner state thinks its experiment or process is for a peaceful purpose, then it is a peaceful purpose. Of course what one person may consider to be a peaceful purpose may not appear so to another (for example experiments improving satellite reconaissance methods). How will the ISSA deal with any experiments which could be interpreted by some as for peaceful purposes and by others for military? Even with an ISSA it is most likely that the Partner states will still be the station's prime users and the states may well wish to conduct experiments or activities that could be interpreted as being for a military purpose. This could be a difficult issue to resolve.

Article 11 Para 1

This states that each Partner state has the right to provide personnel to work on the station. Presumably an ISSA will wish to curtail rights for Partner states so that it can take these sorts of decisions independently. A proper decision-making process will be needed to deal with this, but in the first place it is likely that priority will have to be given to Partner states wishes as they will be the biggest user of the station to begin with.

Para 2

This reference to a Code of Conduct for personnel onboard the station recalls some serious points. Which laws will apply on the station? At the moment the answer seems to depend on which section of the station the unlawful act takes place. With an ISSA running the station this would seem to be inappropriate but which will laws will take their place? If the ISSA has the ability to enter into contracts for the use of the station, launches to it and so forth, how does it enforce those contracts if it is independent of any one state? Which laws apply to these contracts?

Article 12 Para 1

Here the Partner states have the right to access to the station by using their own space transportation systems. Again, presumably these rights will have to be curtailed if the ISSA is to be truly independent and access to the station will be decided by entering into contracts. It is likely that the Partner states will want some form of compensation for losing these rights.

Article 13 Para 1

This section on communication brings us to a very important practical point. If an ISSA was set up it would still be very reliant on the services provided by the Partner state's space agencies, especially NASA and RSA for providing communications to and from the station. It is difficult to see how the ISSA could set up adequate facilities for communication outside the space agencie's long established resources. This may compromise the ISSA's independence.

Article 15 Para 1

It is easy to imagine the Partner states being reluctant to dispose of any of their control or interest in the ISS to an ISSA after putting so much money and effort into it. Although the creation of an ISSA is probably the best way to ensure the ISS is utilised as effectively as possible in opening up the space frontier, the Partner states will not see it solely in this context. They will also be viewing it in terms of national prestige and power, co-operation with other countries (in the sense of government to government) and being seen to promote their own domestic industrial and scientific resources. These factors are at least as important, I would submit, to the Partner states as the expansion of the High Frontier, and the creation of an ISSA would not directly benefit them. These are factors that would have to be overcome before the Partner states would agree to dispose of their interests in ISS to the ISSA.

Article 15 Para 3

I note this states that if funding problems arise the Partner state with the problem should consult the others. I wonder if President Bush considered this point before announcing the cutbacks in the budget for the ISS which included the termination of the Crew Return Vehicle? It would be interesting to find out if any consultation through the IGA mechanism took place.

Article 16

This article, dealing with cross-waiver of liability, again begs the question about how claims relating to activities on the station will be dealt with. The article, in broad terms, reduces liability for claims for unlawful acts on the station. How would an ISSA deal with this? One way would be for those using the station's facilities to submit to its jurisdiction, that is the ISSA would have to set up its own courts. This also brings to mind previous thoughts on a constitution for the ISS. This of course brings its own problems.

General Point

How will the ISSA be treated under the various international treaties restricting activities in space to peaceful ones? For example, will the ISSA have a role in policing activities (especially by nation states) to ensure they are "peaceful" and therefore comply with (for example) the Outer Space Treaty? If so, how will this be enforced against activities carried out by nation states?

The ISS is likely to be the main manned outpost in orbit for at least the next decade. If so, it will have to serve as the next stepping stone in opening up the new frontier of space. Only an independent authority can focus on maximizing its operations and promoting it use, especially on a commercial basis. If it is left in the hands of the Partner states it will ultimately be vulnerable to the caprice of international and domestic politics. We must focus on how such an authority would be structured and how it would relate to the Partner States.


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Follow-Ups:

A link to the IGA Bob Werb (25 Jun 2001 22:17 GMT)
A marked up version of Adam's notes with excerpts from the IGA Bob Werb (10 Jul 2001 23:24 GMT)
   Re: My thoughts on Adam's notes Bob Werb (13 Jul 2001 14:29 GMT)
      Request for References Adam Manning (17 Jul 2001 17:49 GMT)
         Re: Request for References Bob Werb (17 Jul 2001 21:48 GMT)


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