NASA, the initiator of the International Space Station (ISS), is currently reinforcing partnerships with the commercial sector as well as other ISS Partner States: this gives rise to a need to analyse the legal framework for commercial uses of ISS.
Shortly after the launch of the first man-made satellite in 1957, outer space was found to be a place with abundant opportunities for commercialisation. Telecommunications services proved to be the first successful space commercial application, to be followed by remote sensing and global navigation services. In the last decade, the rapid development of space technologies has brought space tourism and space mining to the forefront of space commercialisation.
With more and more commercial activities taking place on a daily basis from the 1980s, the need to privatise, commercialise, and promote Outer Space activities by non-governmental entities along with the introduction of new international legal instruments has been addressed for long. For this new Space Law article on Space Legal Issues, we will focus on the legal framework for commercial uses of ISS.
The International Space Station (ISS)
Tremendous progress has been made on the ISS international partnership. In late 1999, an international crew of three astro/cosmonauts began living aboard the ISS, starting a permanent human presence aboard the outpost. The crew had been in training for the mission since late 1996, and included Flight Engineer Sergei Krikalev, a Russian cosmonaut, Soyuz Commander Yuri Gidzenko, also a Russian cosmonaut, and ISS Commander Bill Shepherd, a U.S. astronaut.
Today, the ISS program continues to face significant challenges. Budgetary constraints, especially in times of economic instability of the global markets, as well as cultural and national differences, demand all efforts of the participating Partners to build and operate the ISS on schedule, and to maintain a global interest and commitment to the program. The ISS program is currently creating the mechanism and process that will be used by future international civil cooperative activities in all fields. The successful ISS might serve as a catalyst and pathfinder for future international cooperative scientific ventures and will provide a gateway to international exploration of deep space and other planets.
Let’s recall that the Space Station started out as a US programme to be executed by NASA at the end of the 1970s. It acquired an international dimension for the first time with the conclusion in 1985 of three MOUs for the conducting of parallel detailed definition and preliminary design studies on the Space Station. These MOUs, dealing with what are commonly referred to as “Phase-B” activities, were concluded between NASA and ESA, NASA and the Japanese Government, and NASA and the Canadian Ministry of State for Science and Technology (MOSST).
One year later, negotiations started on the legal framework that would apply for the full development (Phase-C/D) and exploitation (Phase-E, combining operation and utilisation) of the Space Station. Because of the expected 30-year duration of this project and the corresponding multi-billion dollar envelope, it was decided not to limit the legal instruments to Agency-level MOUs, but to involve those States wishing to participate in such a project through the conclusion of an international agreement, the Space Station Inter-Governmental Agreement (IGA), setting out the general principles for carrying out this cooperation.
The legal framework for commercial uses of ISS
The International Space Station (ISS) is a co-operative programme between Europe, the United States of America, Russia, Canada, and Japan for the joint development, operation and utilisation of a permanently inhabited Space Station in Low Earth Orbit (LEO). The legal framework defines the rights and obligations of each of the countries and their jurisdiction and control with respect to their Space Station elements.
IGA establishes a long-term international cooperative framework on the basis of genuine partnership for the design, development, operation, and utilisation of a permanently inhabited civil international Space Station for peaceful purposes, in accordance with international law. The International Space Station (ISS) legal framework is built on three levels of international co-operation agreements.
1. The International Space Station Intergovernmental Agreement (IGA), often referred to as the IGA, is an international treaty signed on January 29, 1998 by the fifteen governments involved in the Space Station project. This key government-level document establishes “a long term international co-operative frame-work on the basis of genuine partnership, for the detailed design, development, operation, and utilisation of a permanently inhabited civil Space Station for peaceful purposes, in accordance with international law” (Article 1).
2. Four Memoranda of Understandings (MoUs) between the National Aeronautics and Space Administration (NASA) and each co-operating Space Agency: the European Space Agency (ESA), the Canadian Space Agency (CSA), the Russian Federal Space Agency (Roscosmos), and the Japan Aerospace Exploration Agency (JAXA). The objective of these space agencies-level agreements is to describe in details the roles and responsibilities of the agencies in the design, development operation and utilisation of the Station. In addition, the agreements serve to establish the management structure and interfaces necessary to ensure effectively the utilisation of the Station.
3. Various bilateral Implementing Arrangements between the space agencies have been established to implement the Memoranda of Understandings. The Arrangements distribute concrete guidelines and tasks among the national agencies.
Concerning the legal framework for commercial uses of ISS, “the International Space Station will enhance the scientific, technological, and commercial uses of outer space” (Article 1 of IGA). New fields of commercial activities in outer space include: transportation services for delivery of people and cargo to outer space; space tourism; space advertising; and space commercial experiments. Let’s recall that the most valuable allocations and service are power, storage, crew time, EVA capacity, transportation of people and cargo.
Let’s note that “partners have the right to barter or sell any portion of their respective allocations. The terms and conditions of any barter or sale shall be determined by the parties to the transaction” (Article 9.2 of IGA). “Each Partner may use and select users for its allocations for any purpose consistent with the object of IGA and provisions set forth in the MOUs and implementing arrangements” (Article 9.3 of IGA).
Finally, “equipment on the ISS shall not be owned by any non‐Partner or a private entity under its jurisdiction without the prior concurrence of other Partners. Any transfer of ownership of any ISS element to a non‐Partner shall require prior notification of other Partners” (Article 6 of IGA). “Each Partner may use and select users, except that any proposed use of a user element by a non‐Partner or private entity under its jurisdiction shall require the prior notification to and timely consensus among all Partners through their Cooperating Agencies” (Article 9 of IGA).
Concluding remarks on the legal framework for commercial uses of ISS
Speaking about the legal framework for commercial uses of ISS, the necessity for non-governmental entities that commercially participate in and benefit from space activities to accept and respond to their own international liability, is mandatory, in order to unburden the “launching State”, and cannot be seen apart from, but only in the context of and directly related to, the business opportunities that this new market represents for the private sector. This is what we can say about the legal framework for commercial uses of ISS.