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The ISSA and the IGA - Adam's cmts and Bob's cmts.
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Posted by Patrick Gibbs () at 02:59 GMT on 12 Sep 2001

In reply to Altering the IGA
from Adam Manning at 21:16 GMT on 03 Aug 2001


Another lawyer's perspective on the Inter-Governmental Agreement and the International Space Station Authority:

Article 1, Paragraph 3: Rights to use of the Station are tied to each partner state's providing "flight elements."

It would be helpful for the discussion if we could have definition of "flight element." Leaving that aside for now, I think the real issue here is the distinction between "ownership" and "management." By comparison the ownership of a corporation that has publicly traded stock can be scattered among millions of shareholders. For the day to day operation of the corporation what counts is the composition of the management. Through the Board of Directors the management of a corporation is answerable to the owners because each member of the Board has a fiduciary duty to the shareholders to change the managers if their conduct is sufficiently detrimental to the corporation.

Article 5, Paragraph 2: Each Partner State retains jurisdiction and control over the [flight] elements it contributes.

If the Authority is an instrumentality of the Partner State(s), individually or collectively, then there is no problem with complying with this provision. That's the wonderful thing about International Law: whatever arrangement that is expedient can be negotiated and put into a treaty. I have never viewed International Law (when it is outside of international law controlling commercial relationships) as being a body of law standing independent of the political winds that blow. However, all I know about international law is whatever I have read in the newspaper. I did not study it in law school. It is fairly self-evident that politics dominates the formation of international law.

Article 6, Paragraph 1:Ownership in the [flight] elements is vested in the respective Partner State.

Just as with the ownership and management of a publicly traded corporation, what do we care about ownership if we can define management powers. Also, hasn't everyone heard of a lease? If the ISSA gets a lease of the flight element of whatever duration is necessary, what difference does the ownership make?

Article 9, Paragraph 3(b): Partner providing an element shall determine whether contemplated use of an element "is for peaceful purposes."

We have to get to the definitions to sort this out. Does "peaceful" mean "non-military" or does it mean not involved in tactical military operations? If a U.S. naval vessel patrols the Indian Ocean during times of peace, its activity is military but it is also "peaceful" until it has occasion to shoot at someone.

Bob Werb's comment about Article 14.1 of the MOU between the U.S. and Russia:
To the question, what does "in accordance with international law" mean? I would answer, not much at all except that someone did not want to engage in good draftsmanship.

Article 12, Paragraph 1: "Each of the Partners shall have the right of access to the Space Station."

Any right can be assigned and its exercise has to be managed by someone. If the Partners want to give authority over the method of exercising that right to the ISSA, then by agreement they can do so.

Article 13, Paragraph 1: Speaks about "access" and launch and return services. The comments were concerned with communications facilities.

No one is concerned that the federal government "owns" the Interstate Highway system. All we care is that we have the dependable use of it. If the government wants to make NASA's communications system available at a reasonable cost, I don't see how that "compromises" the independence of the ISSA. At a certain point, I would hope that we should have some innovative communications systems applicable to space development that become available from the private sector (See. Iridium for an example on how not to do the equivalent for ground commo through space). If we could structure the environment in LEO for privately provided infrastructure, that would be best. Commo may surprise us by being the first instance of that.

Article 16 Cross waiver of liability. The comments were concerned with dispute resolution and criminal jurisdiction (Article 22).

I agree with Bob's comments that any activity by ISSA has to build in an arbitration style procedure for dispute resolution. I don't see why we would establish "courts" when there are perfectly acceptable arbitration procedures available in the commercial world. Find anybody who is doing international commercial law transactional work and you'll probably find someone who knows how to draft an arbitration provision that even identifies how the arbitrators are selected and the procedural rules. Criminal jurisdiction is no big problem. We are used to having U.S. jurisdiction over activities on U.S. flag vessels at sea. Extraterritoriality is the next hot issue in criminal law (e.g. the Russian arrested while visiting in Las Vegas on the complaint by Adobe that his company's software (developed in Russia) was used to break Adobe's pathetic e-book encryption). I do not see space as being where extraterritoriality is going to be a big problem. Cyberspace probably yes; LEO space, no.

Last words about the need for independent authority for the ISSA.

Bad news: we live in an imperfect world and everyone is vulnerable to the caprice of international and domestic politics. As I write this they have not yet started counting the dead in New York from the first attack of what could be the Third World War (this one with terrorists, not dictators). I was going to call it a battle, but you can't have a battle when one side is made up of defenseless civilians. Thousands of people in the World Trade Center were fatally vulnerable to the caprices of international politics because some fanatics located overseas think that religious wars on infidels are still a really good idea.
All you can do is try to give the good guys as much power as possible. We are the good guys and if we ever stop believing that we are in real trouble. The Russians are up for grabs (too many ex-KGB thugs) and the French will side with whoever is winning (but who cares about them when they always prove irrelevant).

If you have people running the ISSA who believe in freedom and the Rule of Law, there is a chance it will work. If you fill it with UN bureaucrat-types and people from the EU who believe that central authority is always right (e.g. Napoleonic Code), it will eventually lapse into what the UN has become, a playground for dictators and bureaucrats who are accountable to no one.

I wanted to be able to italicize the cites to different Articles, but could not figure out how to do this with the BBS software here.

Patrick J. Gibbs
Attorney at Law
Atlanta, GA
Counsel to Space Frontier Foundation


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