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Space Law: Its Cold War Origins and Challenges in the Era of
Globalization*

Joanne Irene Gabrynowicz, J.D.†

I. ABSTRACT
Space law is a complex mixture of international and domestic laws that
govern a wide spectrum of activities. Such activities can range from the exotic,
like creating the institutional framework for an international lunar mining
consortium, to the more routine, like drafting telecommunications agreements.
The fields of law these activities can involve include administrative law,
intellectual property law, arms control law, insurance law, environmental law,
criminal law, and commercial law, as well as international treaties and
domestic legislation written specifically for space. This paper outlines the
origin and scope of space law and addresses the emerging challenges that this
body of law faces in the 21st Century.

II. THE COLD WAR ORIGINS OF SPACE LAW

A. International Law
Starting with international space law, there are five major treaties drafted in
the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS)
that are currently in force: the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies1 (Outer Space Treaty); the Convention on International

* This Article is based on a speech that Ms. Gabrynowicz delivered on November 13, 2003, as part of
the Donahue Lecture Series. The Donahue Lecture Series is a program instituted by the Suffolk University Law
Review to commemorate the Honorable Frank J. Donahue, former faculty member, trustee, and treasurer of
Suffolk University. The Lecture Series serves as a tribute to Judge Donahue’s accomplishments in encouraging
academic excellence at Suffolk University Law School. Each lecture in the series is designed to address
contemporary legal issues and expose the Suffolk University community to outstanding authorities in various
fields of law.
† Editor-in-Chief of the JOURNAL OF SPACE LAW; Professor of Space Law and Remote Sensing Law
and Director of the National Remote Sensing and Space Law Center, University of Mississippi School of Law.
Professor Gabrynowicz was the recipient of the 2001 Women in Aerospace Outstanding International Award
and is a member of the International Institute of Space Law and the American Bar Association Forum on Air
and Space Law. She may be reached at: www.spacelaw.olemiss.edu. This article was adapted from Professor
Gabrynowicz’s Donahue Lecture on Space Law.
1. Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
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Liability for Damage Caused by Space Objects2 (Liability Convention); the

Agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects Launched into Outer Space3 (Rescue and Return
Agreement); the Convention on Registration of Objects Launched into Outer
Space4 (Registration Convention); and the Agreement Governing the Activities
of States on the Moon and Other Celestial Bodies5 (Moon Treaty). All but the
last are widely accepted. The Outer Space Treaty is quasi-constitutional6 and
entered into force in 1967.7 President Lyndon Johnson believed that the Outer
Space Treaty was important enough to the United States’ national interests to
ask then Supreme Court Justice Arthur Goldberg to step down from the
Supreme Court in order to negotiate it for the United States. The treaty has
almost one hundred signatories8 and is the basis for all other treaties that
reference it in their texts. It incorporates the United Nations (U.N.) Charter and
all of international law.9 Together, the treaties form an interrelated legal
framework that governs international space activities, complete with laws and
dispute resolution mechanisms.
Other important international space law has been forged regionally through
multinational agreements. Among the more important are the Convention for
the Establishment of a European Space Agency,10 the Agreement Relating to
the International Telecommunications Satellite Organization11 (Intelsat
Agreement), the European Organization for the Exploration of Meteorological
Satellite12 (Eumetsat Convention), and the international space station
agreement.13 These multilateral treaties and agreements set the legal

2. Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention].
3. Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 [hereinafter Rescue and Return Agreement].
4. Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 [hereinafter, Registration Convention].
5. Dec. 18, 1972, 1362 U.N.T.S. 3, 18 I.L.M. 1434 [hereinafter Moon Treaty].
6. See GEORGE S. ROBINSON & HAL M. WHITE, JR., ENVOYS OF MANKIND-A DECLARATION OF FIRST
PRINCIPLES FOR THE GOVERNANCE OF SPACE SOCIETIES 187 (1987) (discussing Outer Space Treaty’s
constitutional nature).
7. Outer Space Treaty, supra note 1.
8. United Nations Treaties and Principles of Space Law, at http://www.oosa.unvienna.org/SpaceLaw/
treaties.html (last visited March 8, 2004).
9. Outer Space Treaty, supra note 1, at 5.
10. European Space Agency, Convention for the Establishment of a European Space Agency (5th ed. Mar.
2003) [hereinafter ESA Convention], at http://esamultimedia.esa.int/docs/SP1271En_final.pdf (last visited
March 8, 2004).
11. International Telecommunications Satellite Organization, Agreement Relating to the International
Telecommunications Satellite Organization, Aug. 20, 1971, at http://www.itso.int/php_docs/tpl1_itso.php?dc=
agreement (last visited Mar. 8, 2004).
12. Convention for the Establishment of a European Organisation [sic] for the Exploitation of
Meteorological Satellites, Jan. 1981, at http://www.eumetsat.de/en/area1/pdf/Convention.pdf (last visited Mar.
27, 2004).
13. Agreement Among the Government of Canada, Governments of Member States of the European
Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of
the United States of America Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998,
at http://www.hq.nasa.gov/ogc/iss/01agreement.html (last visited Mar. 27, 2004).
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2004] SPACE LAW 1043

foundation for satellite communications, meteorological observations, space

station design, construction, use and maintenance, and can have scores of
signatories. Bilateral agreements, such as the Treaty Banning Nuclear
Weapons Tests in the Atmosphere, in Outer Space and Under Water14 and the
now-terminated Treaty on the Limitation of Anti-Ballistic Missile Systems15
between the United States and the former U.S.S.R., have also been a source of
international space law.
Born of Cold War forces, the COPUOS space treaties contain both the
aspirations and fears of the times. Their affirmative mandates include that
space is “the province of all mankind”16 and is not subject to national
appropriation by the exercise of sovereignty.17 Astronauts are the “envoys of
all mankind,” bestowed with ambassadorial status.18 The exploration and use
of space is for the benefit of all countries without regard to the degree of their
economic or scientific development.19 To prevent national rivalries from
extending into space, the treaties require signatories to promote cooperation in
space activities and to maintain international peace and security.20 The
provisions that separate open space from celestial bodies for demilitarization
purposes embody the fears of the day.21 While military personnel engaged in
peaceful or scientific activities are allowed on celestial bodies, military bases,
installations, fortifications, weapons testing, and maneuvers are prohibited.22
In contrast, open space is partially demilitarized, with prohibitions covering
only nuclear and other weapons of mass destruction.23 Lacking complete
knowledge of the other’s capability and concerned that they might give up an
advantage, neither the Soviet Union nor the United States would agree to more.
The treaties also contain practical and innovative elements. Space-related
accidents are provided for with both fault-based and strict liability regimes,24
choice of fora,25 a claims commission,26 claims processing,27 claims
adjudication,28 statutes of limitation,29 and compensation rules.30 Many of

14. Aug. 5, 1963, 14 U.S.T. 1313.

15. May 26, 1972, U.S.-U.S.S.R., 23 U.S.T. 3435.
16. Outer Space Treaty, supra note 1, at art. I.
17. See Outer Space Treaty, supra note 1, at art. II.
18. See Outer Space Treaty, supra note 1, at art. V.
19. See Outer Space Treaty, supra note 1, at art. I.
20. See Outer Space Treaty, supra note 1, at art. III.
21. See Outer Space Treaty, supra note 1, at art. IV.
22. See Outer Space Treaty, supra note 1, at art. IV.
23. See Outer Space Treaty, supra note 1, at art. IV.
24. See Liability Convention, supra note 2, at arts. II-III; Outer Space Treaty, supra note 1, at art. VII.
25. See Liability Convention, supra note 2, at art. XI.
26. See Liability Convention, supra note 2, at art. XIV.
27. See Liability Convention, supra note 2, at arts. X-XI.
28. See Liability Convention, supra note 2, at arts. XV-XIX.
29. See Liability Convention, supra note 2, at art. X.
30. See Liability Convention, supra note 2, at arts. XII-XIII.
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these provisions reflect the fact that the only two spacefaring nations at the time
were deadly adversaries. For example, the Liability Convention embodies a
strong pro-victim philosophy by establishing absolute liability for any damage
caused by a space object on Earth or to an aircraft in flight.31 This principle
was activated in 1978 when the Soviet Cosmos 954 crashed in Canada’s
Northwest Territories, spewing radioactive debris over a five-hundred mile
swath. The Soviets negotiated a $3 million settlement after the Canadians
presented them with a bill for $6 million. This case highlighted the different
expectations for state behavior in satellite accidents and addressed four
governing norms: the duty to forewarn, to provide information, to clean up,
and to compensate for injuries.32 Although the treaties were not formally
invoked in the diplomatic negotiations surrounding the Cosmos 954 accident,
the negotiations involved provisions of both the Liability Convention and the
Rescue and Return Agreement33 that greatly influenced the diplomatic process
at the time and continued to influence later events.
Space-age legal entities, international intergovernmental organizations, are
recognized under the treaties,34 affording organizations like the European Space
Agency some rights and obligations once reserved only to nation-states. For
example, international intergovernmental organizations may declare that they
accept the rights and obligations of the treaties.35 Further, State parties to the
treaties who are members of such an organization are obliged to ensure that the
organization makes this declaration.36 References to States in the treaties are
deemed applicable to international intergovernmental organizations that make
the required declaration.37 Regarding questions of liability, an international
intergovernmental organization must be presented with a claim before it is
presented to the State parties to the Liability Convention that are also members
of the organization.38 Only if the organization itself does not pay the
compensation due can the claimant State “invoke the liability” of the
organization’s member nations.39 Innovations like these add to the overall
debate about the legal status of emerging supranational entities that was a

31. Liability Convention, supra note 2, at art. IV(1)(a).

32. See Alexander Cohen, Cosmos 954 and the International Law of Satellite Accidents, 10 YALE J. INT’L
L. 78 (1984).
33. See CARL Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 180 (Pergamon Press
1984) (1982).
34. See Outer Space Treaty, supra note 1, at art. XIII.
35. See Registration Convention, supra note 4, at art. VII(1); Moon Treaty, supra note 5, at art. 16;
Liability Convention, supra note 2, at art. XXII(1); Rescue and Return Agreement, supra note 3, at art. 6.
36. See Registration Convention, supra note 4, at art. VII(2); Moon Treaty, supra note 5, at art. 16;
Liability Convention, supra note 2, at art. XXII(2).
37. See Registration Convention, supra note 4, at art. VII; Moon Treaty, supra note 5, at art. 16; Liability
Convention, supra note 2, at art. XXII(1); Rescue and Return Agreement, supra note 3, at art. 6; Outer Space
Treaty, supra note 1, at art. XIV.
38. See Liability Convention, supra note 2, at art. XXII(3)(a).
39. See Liability Convention, supra note 2, at art. XXII(3)(a).
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2004] SPACE LAW 1045

hallmark of international law in the last decades of the 20th Century. However,
specific limitations on an organization’s legal capacity also exist. For example,
claims for damage caused to the organization must be presented by a member
of the organization who is also a State party to the convention.40 Moreover,
international intergovernmental organizations may not ratify,41 amend,42
review,43 or withdraw44 from the treaties. Adding to the ambiguity of the legal

40. See Liability Convention, supra note 2, at art. XXII(4).

41. See Registration Convention, supra note 4, at art. VII (excluding intergovernmental organizations
from ratification process); Moon Treaty, supra note 5, at art. 16 (containing ratification exclusion similar to
Registration Convention’s); Liability Convention, supra note 2, at art. XXII (containing ratification exclusion
similar to Registration Convention’s). Interestingly, both the Outer Space Treaty and the Rescue and Return
Agreement are silent on ratification by international intergovernmental organizations, each limiting ratification
to “States” in Article XIV(2) and Article 7(2), respectively. See Rescue and Return Agreement, supra note 3,
at art. 7(2); Outer Space Treaty, supra note 1, at art. XIV(2). However, language limiting ratification to
“States” is also contained in the Liability Convention at Article XXIV(1), the Registration Convention at
Article VIII(1), and the Moon Treaty at Article 19(2). See Registration Convention, supra note 4, at art.
VIII(1) (allowing only “State Parties” to ratify convention); Moon Treaty, supra note 5, at art. 19(2)
(containing ratification provision similar to Registration Convention’s); Liability Convention, supra note 2, at
art. XXIV(1) (containing ratification provision similar to Registration Convention’s).
42. See Registration Convention, supra note 4, at art. VII (excluding intergovernmental organizations
from amendment provision); Moon Treaty, supra note 5, at art. 16 (containing amendment exclusion similar to
Registration Convention’s); Liability Convention, supra note 2, at art. XXII (containing amendment exclusion
similar to Registration Convention’s). Again, the Outer Space Treaty and the Rescue and Return Agreement
are silent on amendment by international intergovernmental organizations, each limiting amendment to a “State
Party” in Article XV and Article 8, respectively. See Rescue and Return Agreement, supra note 3, at art. 8;
Outer Space Treaty, supra note 1, at art. XV. However, the same term is also contained in the Liability
Convention at Article XXV, the Registration Convention at Article IX and the Moon Treaty at Article 17. See
Registration Convention, supra note 4, at art. IX (allowing only “States Parties” to propose amendments);
Moon Treaty, supra note 5, at art. 17 (containing amendment provision similar to Registration Convention’s);
Liability Convention, supra note 2, at art. XXV (containing amendment provision similar to Registration
Convention’s).
43. See Registration Convention, supra note 4, at art. VII (excluding intergovernmental organizations
from review provision); Moon Treaty, supra note 5, at art. 16 (containing review exclusion similar to
Registration Convention’s); Liability Convention, supra note 2, at art. XXII (containing review exclusion
similar to Registration Convention’s). Regarding review, there is another interesting variation: neither the
Outer Space Treaty nor the Return and Rescue Agreement have any review provision. See generally Rescue
and Return Agreement, supra note 3; Outer Space Treaty, supra note 1. If what is not included is excluded,
then both States and intergovernmental organizations are excluded from participating in a review process
unless the treaties are amended to do so. See generally Rescue and Return Agreement, supra note 3; Outer
Space Treaty, supra note 1.
44. See Registration Convention, supra note 4, at art. VII (excluding intergovernmental organizations
from withdrawal provision); Moon Treaty, supra note 5, at art. 16 (containing withdrawal exclusion similar to
Registration Convention’s); Liability Convention, supra note 2, at art. XXII (containing withdrawal exclusion
similar to Registration Convention’s). As with ratification and amendment, the Outer Space Treaty and the
Rescue and Return Agreement are once again silent on withdrawal by international intergovernmental
organizations, limiting withdrawal to a “State Party” in Article XVI and Article 9, respectively. See Rescue
and Return Agreement, supra note 3, at art. 9; Outer Space Treaty, supra note 1, at art. XVI. However,
language limiting withdrawal to “States” is also contained in the Liability Convention at Article XXVII, the
Registration Convention at Article XI, and the Moon Treaty at Article 20. See Registration Convention, supra
note 4, at art. XI (providing only for “State Party” withdrawal); Moon Treaty, supra note 5, at art. 20
(containing withdrawal provision similar to Registration Convention’s); Liability Convention, supra note 2, at
art. XXVII (containing withdrawal provision similar to Registration Convention’s).
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status of these organizations is the language of the Outer Space Treaty, which
states that “practical questions arising in connection with activities carried on
by international intergovernmental organizations . . . shall be resolved by . . .
States Parties . . . either with the appropriate international organization or with
one or more States members of that international organization, which are
Parties to this Treaty.”45 The debate regarding the status of international
intergovernmental organizations is further complicated by the apparent
devolution of certain space international intergovernmental organizations, like
Intelsat, in the post-Cold War era.
While the first four treaties were drafted, ratified, and entered into force with
considerable speed from 1967 to 1974,46 the last one, the Moon Treaty, adopted
in 1979,47 has met with minimal support and maximum controversy.48 The
debate surrounding its provisions for obtaining, using, and governing lunar
resources incorporates the Earthbound conflict regarding wealth accumulation
and distribution between the world’s rich, technologically advanced nations and
its poor, technologically disadvantaged nations. The east-west adversarialism
of the Cold War has given way to north-south resource disparity as the
centerpiece of space law dialectic. Moon Treaty issues will continue to evolve
as events between the developed and developing nations unfold. These issues,
and the principles that implement their resolution, will likely have influence on
the Moon Treaty’s future. In developed nations from the 1970s through the
1990s, the likelihood of a near-term return to the Moon diminished along with
the political will needed to support such a mission. Recently, however, the
Chinese became the third nation to place a human in space.49 More successful
Chinese missions could ignite the kind of rivalry and race for national prestige
that has driven national missions since Sputnik. President George W. Bush has

45. Outer Space Treaty, supra note 1, at art. XIII.

46. The Outer Space Treaty was adopted on December 19, 1966 in General Assembly resolution 2222
(XXI), opened for signature on January 27, 1967, and entered into force on October 10, 1967. See Outer Space
Treaty, supra note 1, at pmbl. The Rescue and Return Agreement was adopted on December 19, 1967 in
General Assembly resolution 2345 (XXII), opened for signature on April 22, 1968, and entered into force on
December 2, 1968. Rescue and Return Agreement, supra note 3, at pmbl. The Liability Convention was
adopted on November 29, 1971 in General Assembly resolution 2777 (XXVI), opened for signature on March
29, 1972, and entered into force on September 1, 1972. Liability Convention, supra note 2, at pmbl. The
Registration Convention was adopted on November 12, 1974 in General Assembly resolution 3235 (XXIX),
opened for signature on January 14, 1975, and entered into force on September 15, 1976. Registration
Convention, supra note 4, at pmbl.
47. The Moon Treaty was adopted on December 5, 1979, in General Assembly resolution 38/68, opened
for signature on December 18 1979, and entered into force on 11 July 1984. See Moon Treaty, supra note 5, at
pmbl.
48. See Eileen Galloway, Space Law in the 21st Century, 26 J. SPACE L. 187, 191 (1998).
49. China Seeks Prestige of the Elite Man-in-Space Club, Say Experts, at http://www.spacedaily.com/
2003/031002120836.8vr4hchu.html (last visited Oct. 3, 2003); Shenzhou-5 Single-Day Mission to Launch Near
Oct. 15, at http://www.spacedaily.com/news/china-03ze.html (last visited Oct. 3, 2003); Shenzhou—Divine
Military Vessel, at http://www.spacedaily.com/news/china-03zd.html (last visited Oct. 3, 2003).
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2004] SPACE LAW 1047

announced his Administration’s plans for a United States return to the Moon,50
although as of this writing, it is too soon to tell if these plans will succeed.
Overall, international space law has completed its first phase. Important
general principles—some of them, historic—were articulated and agreed upon
by a majority of nations. The next generation of space law involves agreeing
on specific norms. Is sovereignty necessary to establish property rights? Are
space resources, as well as space itself, the province of all humankind? If so,
how are they to be allocated? If not, why? How can non-spacefaring nations
be assured use of outer space? How will the investments of spacefaring nations
be honored? What is the appropriate relationship between the public and
private sectors in space? How will private space activities be regulated? These
questions, and more, are yet to be answered.

B. United States Domestic Law

As a major spacefarer, the domestic legislation of the United States has
persuasive authority for the development of international space law, much as
the practices of strong maritime nations influenced the development of
international maritime law.51 The United States Constitution mandates that a
properly ratified treaty is the “supreme law of the land,” creating an interface
between United States domestic law and international space treaties.52
The National Aeronautics and Space Act of 1958 (NAS Act) established the
United States civil space program and NASA.53 Among the purposes of the
NAS Act are the expansion of human knowledge of space and atmospheric
phenomena, the development of aeronautical and space vehicles, the
establishment of long-term studies of potential benefits from the peaceful use
of space, and the promotion of international cooperation. The most
controversial aspect of the law when it was passed was the stark separation of
military and civilian space activities. Adamant that the U.S. space program
should stand in sharp contrast to the overtly military Soviet program and
determined that space activities would not create a national deficit, President
Eisenhower placed the national space program under civil control, resisting
both popular sentiment and military pressure. By executive order, he
transferred from the Defense Department to NASA all space-related civilian
personnel, functions, facilities, equipment, records, property, and funds not
primarily related to military operations and weapon system development. $117

50. Frank Sietzen Jr. & Keith L. Cowing, Bush OKs New Moon Missions, UNITED PRESS INT’L, Jan. 8,
2004, at http://www.spaceref.com/news/viewnews.html?id=913 (last visited January 20, 2004).
51. See Hamilton DeSaussure, Remote Sensing Satellite Regulation by National and International Law,
15 RUTGERS COMPUTER & TECH. L.J. 352, 375 (1989) (recognizing technology’s pace requires more rapid
space law development than centuries used for maritime law).
52. See U.S. CONST. art. VI.
53. National Aeronautics and Space Act of 1958, 42 U.S.C. § 2451 (2003) [hereinafter NAS Act].
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million was provided to facilitate these transfers.54 Reflecting the importance

of NASA in waging the Cold War, the NAS Act gives NASA broad authority
that is generally not available to other civil federal agencies.
Without specifically changing the NAS Act, economic and strategic
pressures have blurred the legal distinction between military and civil space
activities. Other pressures, like the energy crisis of the 1970s, prompted
Congress to amend the NAS Act to make NASA responsible for questionable
missions, including the development of advanced automobile propulsion
systems.55 While the NAS Act is still valid law, over the years it has been
amended or ignored in piecemeal fashion, thus justifying its reconsideration as
a whole in today’s era of globalization.56
Specific space laws passed by Congress include the 1962 Comsat Act,57 the
Commercial Space Launch Act, as amended,58 and the Land Remote Sensing
Policy Act of 1992.59 As their names indicate, these acts govern public and
private satellite communications, launch services and products, and remote
sensing systems.
The Comsat Act authorized United States participation in the development
and operation of Intelsat, an international communications satellite system.
Intelsat members had agreed to make effective and equitable use of space
radiocommunication. Under this agreement, the spectrum was considered a
scarce resource that should be available to all nations on a global and
nondiscriminatory basis. Member nations also agreed not to compete with
Intelsat. Like the space treaties, the Comsat Act embodied both Cold War
political and humanitarian motives. To influence what President John F.
Kennedy called “the lands of the rising peoples,”60 the Comsat Act directed that
services to less economically developed countries should be provided.
However, since satellite communications became a highly commercial success,
Intelsat was restructured with private profit-making and public oversight
components. Controversy currently exists over whether this new form is a
viable one.
The National Space Launch Act (Launch Act) was passed in 1984. Its
purposes were to promote economic growth and entrepreneurial activity by
using space for peaceful purposes and to authorize the Department of

54. Exec. Order No. 10,783, 23 Fed. Reg. 7,643 (Oct. 1, 1958); Exec. Order 10,793, 23 Fed. Reg. 9,405
(Dec. 3, 1958).
55. NAS Act, supra note 53, § 2451(e).
56. When NASA’s current General Counsel, Mr. Paul G. Pastorek, was appointed, one of the first projects
instituted by his office was a review of the NAS Act as a whole.
57. 47 U.S.C. § 701 (1998).
58. 49 U.S.C. § 70104 (2003).
59. 15 U.S.C. § 5601 (2003).
60. President John F. Kennedy, Special Message to the Congress on Urgent National Needs (May 25,
1961) (delivered in person before a joint session), reprinted in PUBLIC PAPERS OF THE PRESIDENTS 396-406
(1961).
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Transportation to regulate commercial launches. It was not until 1988, when

the Launch Act was significantly amended, that it had any real impact on the
launch industry. The Challenger accident prompted the Reagan Administration
to change the national policy of using only space shuttles for all civil, military,
and commercial launches. Challenger placed the state of the domestic launch
industry under the congressional spotlight, leading to the 1988 amendments.
Congress found that the biggest problem facing the industry was the risk of
liability. Previously, NASA patterned launch agreements after an Air Force
model agreement, which held the government harmless and exposed the launch
provider to unlimited third party liability. The amended law requires a launch
provider insure against damage to government property and third party liability.
In turn, the government agrees to waive claims and indemnifies third party
claims over insured amounts.61
The validity of the waivers was tested in federal court in Martin Marietta v.
Int’l Telecomm. Satellite Org.62 Although the case did not involve the
government or the Launch Act directly, the court held that it was the intent of
Congress to provide broad protection for United States launch providers.63
Therefore, waivers similar to those prescribed by the Act and used by Martin,
the launch provider, and Intelsat, the satellite owner, were enforceable.64 On
appeal, however, a higher court reversed and remanded the case for further
consideration, stating that the lower court had gone too far.65 A corporate
merger in which the plaintiff and defendant joined as one corporate entity
pushed the issue into the future for other litigants to address. In the mid-1990s,
the Launch Act and its amendments were incorporated into general
transportation law and later augmented with specific legislation like the
Commercial Space Act of 199866 and the Thurmond National Defense
Authorization Act,67 which addresses post Cold War national security issues.
As of this writing, space transportation law is once again being changed to
incorporate the “emerging commercial human space flight industry,”68 which is
expected to be the foundation for space tourism. The first license is expected to
be issued in the first half of 2004.69
After nearly a decade of attempting to guide the complex process of land
remote sensing, Congress amended the 1984 Land Remote Sensing
Commercialization Act (1984 Act) with the Land Remote Sensing Policy Act of

61. See 1984 Commercial Space Launch Act, 49 U.S.C. 70101-70305 (1988) (incorporating Act and its
amendments into transportation law).
62. 763 F. Supp. 1327 (D. Md. 1991).
63. See id. at 1329-30.
64. See id.
65. See Martin Marietta v. Int’l Telecomm. Satellite Org., 978 F.2d 140, 146 (4th Cir. 1992).
66. 42 U.S.C. § 14701 (2003).
67. 49 U.S.C. §§ 5601-5602 (2003).
68. See H.R. 3752, 108th Cong. (2d Sess. 2004).
69. H.R. 3752, 108th Cong. (2d Sess. 2004); S. 1260, 108th Cong. (2d Sess. 2004).
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1992 (1992 Act).70 This action was prompted by what many consider a failed
attempt at commercialization and the 1984 Act’s inability to meet the
compelling needs of scientific research and the environment. The 1992 Act
attempts to address these failures and, in many respects, is successful.
Nonetheless, the 1992 Act still embodies some of the problems associated with
the earlier law.
A central issue addressed in both laws is nondiscriminatory access to
satellite data. Originally foreign policy, nondiscriminatory access applied to
the government funded and operated Landsat system. The policy was intended
to assuage nonspacefaring nations’ fears of economic and military espionage.
The 1984 Act attempted to commercialize the Landsat system, but provided
inadequate subsidies to do so and subjected the private operator to the
nondiscriminatory access policy. In practice, equal access under the Landsat
operator resulted in equally high prices charged to all users. This consequence
placed raw data beyond the means of many small companies, academics,
developing nations, and scientific researchers. The old law also required all
private, nonsubsidized, commercial remote sensing data providers to abide by
the nondiscriminatory access policy. Unable to control their own pricing
mechanisms, no other data providers applied for operating licenses under the
old law.
The 1992 Act’s most important advance for private system operators—and
the reason why three private companies applied for licenses almost
immediately after its passage—is that they now have more control over
building a clientele. In order to reconcile United States domestic law with the
U.N. Principles on Remote Sensing71 (U.N. Principles), the 1992 Act requires
private companies to make unenhanced data available only to the governments
of sensed states.72 In contrast, the 1984 Act required private companies to
make raw data available to all potential users on the same terms.73 The 1992
Act, however, does continue to place tax-funded government remote sensing
systems under the nondiscriminatory access policy.74 The 1998 Commercial
Space Act,75 the NOAA private systems licensing regulations,76 and the NASA
Authorization Act of 2000 amended and augmented the 1992 Act.77 Together,
they further define and regulate public and private remote sensing activities.
The United States’ body of domestic space law reflects the maturity of

70. 15 U.S.C. §§ 5601-5642 (1992).

71. G.A. Res. 41/65, U.N. GAOR, 41st Sess., 95th plen. mtg. at 2, U.N. Doc A/RES/41/65 (1986)
[hereinafter U.N. Principles].
72. 15 U.S.C. § 5622(a)(2) (1998).
73. 15 U.S.C. § 4201 (1984).
74. 15 U.S.C. § 5601(13) (1992).
75. Commercial Space Act of 1998, Pub. L. No. 105-303, § 102, 112 Stat. 2843, 2846-2851 (1998).
76. Licensing of Private Remote Sensing Systems, 15 C.F.R. § 960 (2000).
77. National Aeronautics and Space Administration Authorization Act of 2000, Pub. L. No. 106-391, 114
Stat. 1577 (2000).
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2004] SPACE LAW 1051

United States’ space activities and addresses general national interests and
specific space technologies and applications. Some other spacefaring nations
have also promulgated domestic space law. For example, reflecting the
economic and strategic importance of Soviet space assets, among the first
actions taken by the newly-independent C.I.S republics after the legal
dissolution of the former Soviet Union was the drafting and ratifying of space
laws.78 A number of other nations, however, have only just begun to address
the need for domestic legislation to administer national interests and to
implement the treaty regime to which they are parties.79 This has raised the
first of a number of challenges space law currently faces. Others include
determining the durability of the international space law regime, recognizing
the increasingly hybrid public-private environment; integrating military and
civil missions; and accommodating emerging global systems that require
national action and global operation.

III. CHALLENGES FOR SPACE LAW IN THE ERA OF GLOBALIZATION

A. Domestic Space Law Development in Emerging Spacefaring Nations

The first era of space law, from the 1960s to the 1980s, was characterized by
the establishment of a major international treaty regime for the exploration, use
and governance of space by nation-states. Since then, the focus has expanded
to include the evolution of commercial space activities and the development of
national law. In the first years of the 21st century, the world witnessed the
launch of Nigeria’s NigeriaSat1, a small remote sensing satellite and a 14-orbit,
21-hour mission of the ShengZhou-5, which carried the first Chinese Taikonaut
into space, making China only the third nation to place a human in space.
These missions exemplify the emergence of the next generation of spacefaring
nations. The space community has recognized that newly-active and recently-
advancing space nations require expertise and guidance to develop their
domestic space law and legal institutions.
The UN has noted:
The need for effective laws and policies on space activities, not just on an
international level but also on the national level, is becoming clear to the
increasing number of States now actively involved in the field of space. The
successful operation of space law, policies and institutions in a country relies

78. See Elena Kamenetskaya, Space Activities of Russia and Member States of the Commonwealth of
Independent States: Features of the post-Soviet Legal Regime, BULLETIN OF THE EUROPEAN CENTRE FOR
SPACE LAW, at 2 (on file with author)
79. See UNITED NATIONS, OFFICE FOR OUTER SPACE AFFAIRS, REPORT ON THE UNITED
NATIONS/INTERNATIONAL INSTITUTE OF AIR AND SPACE LAW WORKSHOP ON CAPACITY-BUILDING IN SPACE
LAW, U.N. Doc. ST/SPACE/14 (2003) (urging such states to ratify outer space treaties).
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1052 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:1041

80
on the presence of suitable professionals.
In 2001, the American Astronautical Society (AAS) concluded that,
The accessibility to and integration into our daily lives of numerous
commercial applications in space, including satellite telephony, direct-to-home
television, high-speed Internet connectivity, telemedicine, distance learning,
remote sensing of the Earth, global positioning and navigation and materials
processing, are a testament to that fact. Yet for private entities and investors to
expand their business models and to reach for the next new application, they
will need to see predictable, transparent and flexible international and domestic
legal frameworks within which they may operate their businesses and protect
81
their investments.
Nigeria typifies the situation recognized by the United Nations and the AAS.
With its placement of a small, remote sensing satellite into space, Nigeria
decided the time had come to ratify the Outer Space Treaty and the Liability
Convention. Prior to ratification, however, it requires further clarification
regarding its obligations under the treaties.82 Domestically, the Nigerian
government has just begun to grapple with concomitant legal issue of data
access, national security, intellectual property, and others. Among the first
measures it has taken is to seek external space law expertise in order to support
and develop an internal domestic capability.
A review of interests among nations that have not yet ratified the space
treaties,83 and the large number of developing nations that attended two space
law capacity-building workshops sponsored by the United Nations Office of
Outer Space Affairs indicates that Nigeria is just one of many states that are
similarly situated.84 Integrating the “needs of developing nations”85 into the

80. United Nations Treaties on Outer Space: Actions at the National Level, United Nations/Republic of
Korea Workshop on Space Law (2003) (on file with author), available at http://www.oosa.unvienna.org/SAP/
act2003/repkorea/index.html (last visited Jan. 10, 2004).
81. Final Report, American Astronautical Society International Programs Committee Workshop on
International Legal Regimes Governing Space Activities, American Astronautical Society, at 1 (2001)
[hereinafter AASI Report] (on file with author).
82. See U.N. COPUOS, 40th Sess., 641st mtg., at 10, U.N. Doc. COPUOS/LEGAL/T.641 (2001)
[hereinafter COPUOS 641], available at http://www.oosa.unvienna.org/COPUOS/Legal/transcripts/index.html
(last visited Mar. 11, 2004).
83. See Report of the Committee on the Peaceful Uses of Outer Space, U.N. GAOR 55th Sess., Supp. No.
20, ¶ 143, U.N. Doc. A/55/20 (2000) (indicating nations yet to ratify treaties), available at http://www.oosa.
unvienna.org/Reports/gadocs/pdf/A_55_20E.pdf (last visited Jan. 10, 2004).
84. See United Nations/Int’l Inst. of Air and Space Law, The Hague, Netherlands, 19-21 (2002), available
at http://www.oosa.unvienna.org/SpaceLaw/workshops/index.html (last visited Jan. 10, 2004).
85. G.A. Res. 51/122, U.N. GAOR, 51st Sess., Supp. No. 20, U.N. Doc. A/RES/51/122 (1996), available
at http://www.oosa.unvienna.org/SpaceLaw/gares/pdf/ARES_51_122E.pdf (last visited Mar. 10, 2004).
“Taking into particular account the needs of developing countries” is a space law term of art that has evolved in
the language of the five space treaties and approximately 72 space related resolutions. Id. It is an attempt to
acknowledge and address the economic and technological disparity between developed and developing nations
which is distinctively evident in space activities. Id. The most extensive attempt at clarification was made in
The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in
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2004] SPACE LAW 1053

existing body of space law will affirm and expand relevant existing legal
principles, as well create new ones in the 21st century.

B. Durability and Evolution of the International Space Law Regime

Both established and newly-active spacefaring nations recognize the
beginning of a new stage of space law development. However, there are
differing opinions as to how best to direct the development process.
Process and substance have become intertwined, giving rise to a debate
about the efficacy and adequacy of the existing treaty regime. Those nations
that believe the regime is lacking and also beyond development through
strengthening and amending the existing instruments suggest the negotiation of
a new, comprehensive treaty.86 Such nations see a new treaty as the only
logical way to successfully meet the changing needs of space activities. They
argue that nations are not participating in the existing treaties due to the
uncertain and changing interpretations of the treaties’ terms.87 A
comprehensive treaty would, they contend, affirm the current space law
regime.88 They further argue that a comprehensive treaty is necessary to
address these problems because the five existing treaties are intentionally
interrelated and require a holistic approach.89
Other nations see the existing legal regime, including the treaties, as both
adequate and as providing the foundation for further legal development. They
are of the view that encouraging adherence to the existing treaties is the more
practical way to achieve development.90 Nations holding this view also raise
related procedural issues, including the argument that consideration of a
comprehensive treaty is beyond the competency of COPUOS and its Legal
Subcommittee.91 They further argue that both the demonstrated difficulty in
having a comprehensive treaty accepted as a formal agenda item, and the lack
of consensus as to whether or not consideration of one is appropriate under

the Interest of All States, Taking into Particular Account the Needs of Developing Countries, adopted on 13
December 1996 (resolution 51/122). Id.
86. See Report of the Legal Subcommittee, U.N. COPUOS, 40th Sess., ¶ 3, U.N. Doc. AC105/763 (2001),
available at http://www.oosa.unvienna.org/Reports/AC105_763E.pdf (last visited Mar. 10, 2004).
87. See generally U.N. COPUOS, 40th Sess., 640th mtg., U.N. Doc. COPUOS/LEGAL/T.640 (2001)
[hereinafter COPUOS 640], available at http://www.oosa.unvienna.org/Reports/transcripts/lsc/2001/LEGALT_
640E.pdf (last visited Mar. 10, 2004).
88. See Report of the Legal Subcommittee, U.N. COPUOS, 42nd Sess., ¶ 50, U.N. Doc. AC105/805
(2003), available at http://www.oosa.unvienna.org/Reports/AC105_805E.pdf (last visited on Mar. 10, 2004).
89. See Report of the Legal Subcommittee, U.N. COPUOS, 40th Sess., ¶ 33, U.N. Doc AC105/763 (2001)
[hereinafter COPUOS Legal 40], available at http://www.oosa.unvienna.org/Reports/AC105_763E.pdf (last
visited Mar. 10, 2004).
90. See U.N. COPUOS, 57th Sess., Supp. No. 20, at 23, U.N. Doc. A/57/20 (2002), available at http://
www.oosa.unvienna.org/Reports/gadocs/pdf/A_57_20E.pdf (last visited Mar. 10, 2004).
91. See Report of the Legal Subcommittee, U.N. COPUOS, 40th Sess., ¶ 34, U.N. Doc. AC105/763
(2001), available at http://www.oosa.unvienna.org/Reports/AC105_763E.pdf (last visited Mar. 10, 2004).
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1054 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:1041

already existing items, manifest sentiments against a comprehensive treaty.92

Finally, they contend that because nations continue to join to the existing
treaties,93 the current regime is a viable one.
A still-evolving, incomplete but informative tally of nations on each side of
the debate shows that, generally, and with one important exception, the more
established spacefarers are against a new, comprehensive treaty, support the
existing regime, and consider it a basis for further legal development. India,94
Japan,95 and the United States are included in this group.96 On the other side of
the issue are primarily nations with no, few, or recently developed space
capabilities: Bulgaria, Colombia, China, Iran, and Greece.97 Some nations
with mature ground segments for remote sensing, Earth observations, and other
space activities, but without indigenous launch capability, hold a center
position. Morocco and Australia, for example, are concerned about the
uncertainty in some of the treaties, but only go so far as supporting a review
and clarification of the treaties themselves.98
An interesting dichotomy worth noting is the opposing positions taken by
Russia, on behalf of the Russian Federation,99 and Ukraine. Russia, one of the
two oldest, most successful spacefarers in the world—and the important
exception to the line-up of established spacefarers noted above—is the
originator and champion of the idea of a comprehensive, universal space
treaty.100 In contrast, Ukraine’s position is that
[w]e proceed from the understanding that most outer space treaties have served
us well for more than 30 years and they continue to serve as a good foundation
for regulating States’ activities in space exploration and peaceful uses of outer
space. Today, these treaties continue to play an active role in regulating States’
space activities. Therefore, in our view, it is necessary to continue hard work
towards making sure that these treaties are ratified by the States that have failed
101
to do so to date.

92. See generally COPUOS 641, supra note 82; U.N. COPUOS, 40th Sess., 643rd mtg., U.N. Doc.
COPUOS/LEGAL/T.643 (2001) [hereinafter COPUOS 643], available at http://www.oosa.unvienna.org/
Reports/transcripts/lsc/2001/LEGALT_643E.pdf (last visited Mar. 11, 2004).
93. See generally U.N. COPUOS, 40th Sess. 642nd mtg., U.N. Doc. COPUOS/LEGAL/T.642 (2001)
[hereinafter COPUOS 642], available at http://www.oosa.unvienna.org/Reports/transcripts/lsc/2001/LEGALT_
642E.pdf (last visited Mar. 11, 2004).
94. See generally COPUOS 641, supra note 82.
95. See generally U.N. COPUOS, 41st Sess., 657th mtg., U.N. Doc. COPUOS/LEGAL/T.657 (2002)
[hereinafter COPOUS 657], available at http://www.oosa.unvienna.org/Reports/transcripts/lsc/2002/LEGALT_
657E.pdf (last visited Mar. 11, 2004).
96. See generally COPUOS 641, supra note 82.
97. See generally COPUOS 657, supra note 95.
98. See generally COPUOS 641, supra note 82.
99. See generally COPUOS 657, supra note 95.
100. A/AC.105/C.2/L.213 and A/AC.105/L.225 (on file with author).
101. U.N. COPUOS, 41st Sess., 657th mtg., at 2, U.N. Doc. COPUOS/LEGAL/T.660 (2002), available at
http://www.oosa.unvienna.org/Reports/transcripts/lsc/2002/LEGALT_660E.pdf (last visited Mar. 11, 2004).
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2004] SPACE LAW 1055

Russia’s space activities have deep Cold War roots, and it continues to be a
leader in space activities worldwide. Ukraine only participates in newer,
commercial space activities more consistent with the era of globalization.
Along with counterparts in Moscow and Seattle, Ukraine manufactures the
Zenit-3SL rocket components that are the mainstay of the Sea Launch Limited
Liability Corporation, of which it is the partner with the smallest holdings.
One outcome of the comprehensive treaty debate was a compromise. While
one group of nations wanted an ad hoc, open-ended working group to consider
a comprehensive treaty, another group questioned whether the forum was
competent to do so. A working group was eventually convened, but it was
limited to investigating the status of the existing treaties. The purpose of
formulating a new treaty was beyond its assigned task.102
The comprehensive treaty debate has extended beyond the COPUOS and its
Legal Subcommittee to the space law community at large. A number of
meetings have been held to address the adequacy of the international space law
regime as it relates to specific activities, including numerous commercial
applications103 and multilateral environmental agreements.104 Participants in
these meetings have generally found that the legal regime is “adequate and
appropriate”105 and provides a “strong foundation in law”106 for the specific
space activities under consideration. In one workshop, the first finding of the
Working Group on the Contribution of Space Systems to the Development and
Implementation of Multilateral Environmental Agreements was that
[t]here is a strong foundation in law supporting the use of data and information
from [Earth Observations] systems in [Multilateral Environmental
Agreements]. The basis for this international legal status includes international
space law as well as national laws, customary law, and the application of equity
principles. This body of law permits and encourages the peaceful uses of outer
space by governments, intergovernmental organizations, and nongovernmental
107
entities.
Despite lack of agreement on an approach to space law development, all of
the groups engaged in the current debate acknowledge that there is, in fact, a
need for “elaborat[ion of] common legal rules or standards.”108 There is also
considerable agreement on the reasons why further development is necessary,
chiefly technological change and the increased commercialization of space.109

102. See generally COPUOS Legal 40, supra note 89.

103. See generally AASI Report, supra note 81.
104. See generally International Activities Committee: Addressing Challenges of the New Millennium,
American Institute of Aeronautics and Astronautics (2001) [hereinafter AIAA Report] (on file with author).
105. AASI Report, supra note 81, at 1.
106. AIAA Report, supra note 104.
107. AIAA Report, supra note 104, at 39.
108. AASI Report, supra note 81, at 1.
109. See generally COPUOS 641, supra note 82; see also AASI Report, supra note 81, at 1.
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Like concentric circles, however, commercialization itself is changing within

space activities, assuring that the questions of what needs to change in space
law and how to develop it will be debated for the foreseeable future.

C. The Increasingly Hybrid Public-Private Environment

The moves toward commercialization and the integration of government
space systems are premised on a patchwork of international and domestic legal
regimes.110 Space law’s clarity is particularly challenged by the expanding
context of a hybrid public-private, international commercial space segment
environment. The worldwide aerospace industry has long been mired in
controversies over different national philosophies regarding the necessity or
desirability of public-private separation, direct and indirect subsidies, and trade
practices. Remote sensing, the application widely believed to be the next major
commercial use of space, illustrates the problem well. Leading remote sensing
nations, including France, Canada, India, and Japan, operate remote sensing
systems based on mixed public-private institutions and principles. Other
leading remote sensing nations have commercial technology applications that
are clearly emerging from a government-funded, military heritage. Post-Cold
War national budgets have created pressure to forge public-private partnerships
even in nations historically committed to the separation of these sectors.111
Even in the United States, where separation of public and private institutions is
the standard approach, government-owned space corporations are considered
cost-saving measures,112 and major government contracts have been awarded
with the express purpose of achieving parity between United States
companies.113 Indeed, some observers opine that private companies that have
already committed hundreds of millions of dollars to development will only
survive if governments are reliable customers.114 Further, existing public
systems face uncertain futures. Even though a statutory preference exists for a
private Landsat follow-on option, its future also holds the potential for hybrid

110. See MICHAEL HARR & RAJIV KOHLI, COMMERCIAL UTILIZATION OF SPACE—AN INTERNATIONAL
COMPARISON OF FRAMEWORK CONDITIONS 69-71 (1990) (summarizing framework conditions of United States
and five other nations).
111. See Commercial Space Act of 1998, Pub. L. No. 105-303, § 102, 112 Stat. 2843, 2846-2851 (1998).
Programs include Earth Observations Commercial Applications Program and the data buy program at NASA
Stennis Space Center. See id.
112. See NASA Considers Forming Government Corporation, SPACE NEWS, Apr. 5, 1999, at 1.
113. See Jeremy Singer, NIMA Contract Will Help Keep Space Imaging On Track, SPACE NEWS, Oct. 28,
2003, at http://dev.space.com/spacenews/satellitecomm/nima_102803.html (last visited Mar. 15, 2004). “[U.S.
National Imagery and Mapping Agency] Director James Clapper . . . said . . . that the near-term contract is
‘essentially designed to keep [Space Imaging] in the game’ following the agency’s Sept. 30 $500 million award
to Digital Globe to build and operate its next generation satellite.” Id.
114. DoD Needs To Back Commercial Imagery Efforts, DEFENSE INFORMATION & ELECTRONICS REPORT,
May 7, 1999, at 1.
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2004] SPACE LAW 1057

public-private operations.115
Finally, the particular remote sensing activities recognized in the corpus of
space law—”improving natural resources management, land use and the
protection of the environment”116—are increasingly identified among the
potential markets for private and government space-based systems117 and have
become the economic rationale for aggressive, commercial-like cost recovery
policies for some public systems. Indeed, the commercialization of the
European Meteorological Operational (METOP) system and the adoption by
the World Meteorological Organization (WMO) of a precedent-shattering
tiered-data access practice118 to protect the commercial value of certain weather
data, dramatically demonstrate how commercial and environmental issues are
merging. The intertwining of public and private functions in space activities is
a space law subject that will continue to require further development.

D. Integration of Military and Civil Missions

A special case of hybrid space activities is the increased integration of
military and civil missions. Although the separation of military and civil space
activities is a fundamental tenet of the domestic law of a number of spacefaring
nations,119 the integration of the two sectors has long been a reality for some
nations and a more recent trend for others. The end of the Cold War, rising
national deficits, and reduced need for systems duplication have created
stronger pressures to merge the two sectors.
The United States and Europe provide the most prominent examples of this
trend. At the national level, the United States is merging its civil Polar-
Orbiting Operational Environmental Satellite (POES) program, operated by the
National Oceanographic and Atmospheric Administration (NOAA) within the

115. See 15 U.S.C. § 5641(a)(4) (1992) (requesting assessment potential hybrid public-private operation of
land remote sensing system).
116. U.N. Principles, supra note 71, at princ. I(a).
117. See Amnon Barzilai, Outer Space—Clean Up Your Act, HA’ARETZ, July 28, 1998, at B3 (discussing
marketability of Israeli government-built satellite technology). “Today, the talk is of a ‘niche’ for commercial
photography satellites for mapping, supplying weather information, preserving the environment and monitoring
forests against fires. In fact, two huge companies, in the United States and Europe, are showing great interest
in the small satellites that [Israeli Aircraft Industries] has developed.” Id.
118. WMO Policy and Practice for the Exchange of Meteorological and Related Data and Products
Including Guidelines on Relationships in Commercial Meteorological Activities, W.M.O. Res. 40, World
Meteorological Congress, 12th mtg. (1995) [hereinafter W.M.O. 40] (addressing data exchange between
national weather services and data provision to third parties), available at http://www.nws.noaa.gov/im/
wmor40.htm (last visited Mar. 15, 2004).
119. See NAS Act, supra note 53, § 2451(b) (establishing NASA to provide civilian oversight of United
States space program); ESA Convention, supra note 10, at art. II (establishing agency for European civilian
space activity). The national laws of many European nations lack a specific delineation between “military” and
“civil” in a manner analogous to U.S law. However, the purpose of the European Space Agency is legally
limited to “exclusively peaceful purposes” by the convention, which has generally been interpreted to prohibit
military activity. Compare Japan: 1969 Diet Resolutions (on file with author), with NAS Act, supra note 53,
§ 2451(b), and ESA Convention, supra note 10, at art. II.
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Commerce Department, and the U.S. military’s Defense Meteorological

Satellite Program (DMSP), operated by the Department of Defense (DoD), into
a merged United States national system, the National Polar-orbiting
Operational Environmental Satellite System (NPOESS). This merger is
referred to as “convergence.”120 At the same time, the United States POES
system is being coordinated with the European METOP 1 and 2 satellites to
form the Initial Joint Polar System (IJPS).121 The NPOESS is being
coordinated further with the European Organization for the Exploitation of
Meteorological Satellites’ (EUMETSAT) METOP 3 to create the Joint Polar
System (JPS).122 The guiding principles of the United States process are the
recognized importance of operational environmental data, assured data access,
the ability to selectively deny critical environmental data to an adversary during
crisis or war, and ensured data use by the United States and its allies.
Implementation is occurring within the Executive Branch.123 Negotiations and
agreements are developing the guiding principles of the merged United States
and European systems.124
The potential success of convergence in the United States and coordinated
systems between the United States and Europe raises a number of legal issues.
Among them are the legal definitions of “crisis or war,” “adversary,” and
“critical data,” and the legal separation of the military and civil space programs
under United States law, European law, and, perhaps, the individual national
laws of certain European nations.
The NOAA-EUMETSAT IJPS agreement (IJPS Agreement) sets out

120. Convergence of U.S.-Polar-Orbiting Operation Environmental Satellite Systems, Presidential

Decision Directive NSTC-2 (May 5, 1994) [hereinafter NSTC-2] (establishing National Polar-orbiting
Operational Environmental Satellite System (NPOESS)), available at http://www.ipo.noaa.gov/About/NSTC-
2.html (last visited Mar. 15, 2004). Managed by the Integrated Program Office (IPO), the NPOESS is staffed
by personnel from the Department of Defense, which provides the NPOESS Deputy Director, NOAA, which
provides the NPOESS System Program Director, and NASA. See id. As a tri-agency program, three senior
positions exist: the Associate Director for Acquisition from the Air Force; the Associate Director for
Technology Transition from NASA; and the Associate Director for Operations from NOAA. See id. These
individuals form a tri-agency Executive Committee consisting of the Undersecretary of Commerce for Oceans
and Atmosphere, the Undersecretary of DoD for Acquisition and Technology, and the Deputy Administrator of
NASA, which has responsibility to coordinate program plans, budgets, and policies and to ensure agency
funding commitments are equitable and sustained. See Fact Sheet: Convergence of U.S.-Polar-Orbiting
Operation Environmental Satellite Systems, Attachment to Letter from John H. Gibbons, Assistant to President
for Science and Technology, to Hon. George E. Brown, Jr., Chairman, Committee on Science, Space, &
Technology, U.S. House of Representatives 2 (May 19, 1994) (on file with author).
121. See generally Agreement Between the U.S. National Oceanic and Atmospheric Administration and
the European Organisation for the Exploitation of Meteorological Satellites on an Initial Joint Polar-orbiting
Operational System, Nov. 19, 1998, U.S.-Eur. [hereinafter IJPS Agreement] (on file with author).
122. See generally Agreement Between the United States National Oceanic and Atmospheric
Administration and the European Organisation for the Exploitation of Meteorological Satellites on Joint
Transition Activities Regarding Polar-orbiting Operational Environmental Satellite Systems, June 24, 2003,
U.S.-Eur., 2003 U.S.T. LEXIS 49 [hereinafter JPS Agreement] (providing for transition from IJPS Agreement).
123. See generally NSTC-2, supra note 120.
124. See generally IJPS Agreement, supra note 121.
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2004] SPACE LAW 1059

definitions critical to the system’s implementation, defining “crisis or war,”125

“critical data,”126 and “adversary.”127 These definitions will be invoked for
“[d]ata denial of critical IJPS data for military purposes”128 from ten United
States instruments flying on NOAA and EUMETSAT spacecraft.129 Two
United States instruments are explicitly excluded from the data denial
provisions.130 “Data denial” is undefined, but criteria for determining when
denial is implemented are set out, including the requirement for United States
Cabinet level authority.131

125. IJPS Agreement, supra note 121, at annex.

Crisis or war is an international situation involving U.S. and/or Allied operations which could range
across the spectrum of military operations. This spectrum would include:
• a major regional conflict;
• a peacemaking or peacekeeping operation involving U.S. and Allied personnel and resources;
• a humanitarian operation involving U.S. and Allied personnel and resources; or
• a show of force operation (such as deploying naval or ground forces to reflect international
disapproval) involving U.S. and Allied personnel and resources.
Id.
126. IJPS Agreement, supra note 121, at annex. “Data denial may be applied to data which an adversary
might use to support or enhance military planning and operations. For example, satellite visual, infrared or
microwave imagery and infrared or microwave atmospheric sounding information have offensive and defensive
military applications and are considered critical environmental data.” Id.
127. IJPS Agreement, supra note 121, at annex 1. “Adversary” is defined as “[a] state or group of states or
a politically unrecognized force within a state or group of states which pose a distinct threat to the U.S. or its
Allies, especially regarding military operations.” Id.
128. IJPS Agreement, supra note 121, at art. 8.4.
129. See IJPS Agreement, supra note 121, at art. 8.4 (noting data denial provisions contained in IJPS
Agreement apply to both NOAA and EUMETSAT spacecraft). Instruments subjected to the data denial
provision are the Visible/Infrared Imager Radiometer Suite (VIIRS), the Cross-track Infrared Sounder (CrIS),
the Advanced Technology Microwave Sounder (ATMS), the Conical-scanning Microwave Imager/Sounder
(CMIS), the Ozone Mapper and Profiling Suite (OMPS), the GPS Occultation Sensor (GPSOS), the Space
Environmental Sensor Suite (SESS), the Earth Radiation Budget Sensor (ERBS), the Total Solar Irradiance
Sensor (TSIS), the Radar Altimeter (ALT), which produces data including Precision Orbit Determination
(POD) information, and the Aerosol Polarimeter Sensor (APS). Id. at art. 3.2.
130. See IJPS Agreement, supra note 121, at art. 8.5 (listing instruments excluded from data denial
provision). The instruments excluded are the Satellite-Aided Search and Rescue (SARSAT) and the Data
Collection and Location System (ARGOS). Id.
131. See IJPS Agreement, supra note 121, at annex 3 (noting cabinet level authority makes assessment
whether data denial provision invoked and listing criteria).
Criteria for determination:
• Whether a condition of crisis or war exists or is developing and whether the crisis or war
poses an immediate and serious threat to U.S.-Allied national security objectives such as
whether it affects the lives of U.S. or Allied personnel and resources;
• An adversary’s ability to receive and exploit environmental data from U.S. sensors for
military purposes;
• An adversary’s ability to receive and exploit similar environmental data from other sources
for military purposes;
• What advantage the data from U.S. instruments would provide an adversary, given that
similar data may be available from other sources;
• The impact of denying data to non-adversaries who may also be affected by data denial;
• The U.S. would consider its international obligations, including those with EUMETSAT and
its members, in making a decision on data denial.
Id. at 28-29.
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The data denial provisions raise the need to define the IJPS in legal terms.132
Under the World Meteorological Organization’s Resolution 40, certain data
from various IJPS instruments will fall under the “fundamental principle” of
“broadening and enhancing the free and unrestricted exchange of
meteorological and related data and products.”133 The U.N. Principles define
“remote sensing” as “the sensing of the Earth’s surface,” placing the IJPS
outside of their scope.134 However, the IJPS Agreement recognizes “the
essential role [of] environmental satellite data . . . [for] . . . other sectors of the
global Earth observation and science user communities,”135 and states that the
parties are cooperating “to continue and improve the operational
meteorological and environmental forecasting and global climate monitoring
services.”136 To the extent the U.N. Principles require remote sensing to
“promote the protection of the Earth’s natural environment,” the use of IJPS
data under certain circumstances, such as those requiring an interdisciplinary
scientific approach, could conceivably place the data within some limited
application of the U.N. Principles.137 However, if and when the IJPS is
operated for military purposes, then it arguably becomes a military system,
removing IJPS data from the scope of the U.N. Principles and presumably
enabling data denial to occur. The question then becomes, as a matter of law,
what must happen for the system to transition from a civil
environmental/meteorological monitoring system to one used for military
purposes? The IJPS Agreement begins to answer this question by stating that
instances of “crisis or war” trigger such a transition.138
The broad definition of “crisis or war” used in the IJPS Agreement covers
activities “which could range across the spectrum of military operations,”
including regional conflicts, peacemaking or peacekeeping, humanitarian
operations, and shows of force “to reflect international disapproval.”139 Wars
are threats to a nation’s supreme interests and ultimately every State that
participates in merged systems, either directly or through intergovernmental
organizations, has a national legal definition of “war.” Furthermore, although
the data denial provisions only apply to some United States instruments, the
definitions of “data denial” and “crisis or war” may or may not be compatible

132. See IJPS Agreement, supra note 121, at art. 3 (containing “General System Description” describing
spacecraft, instrumentation, and ground segment). “The IJP System consists of the following major elements:
EUMETSAT and NOAA spacecraft, instrumentation, and ground segments. The spacecraft and
instrumentation together are referred to as the satellite.” Id.
133. W.M.O. 40, supra note 118, at 2.
134. U.N. Principles, supra note 71, at princ. I.
135. IJPS Agreement, supra note 121, at pmbl.
136. IJPS Agreement, supra note 121, at art. 1.
137. See U.N. Principles, supra note 71, at princ. X (regarding “averting any phenomenon harmful to the
Earth’s natural environment”).
138. See IJPS Agreement, supra note 121, at annex 1.
139. IJPS Agreement, supra note 121, at annex 1.
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and could lead to political and legal differences when data denial is invoked for
military purposes. As with the evolving nature of warfare itself in the age of
global terrorism, these definitions will continue to evolve as the relevant
technologies change.140

E. The Emergence of Private Law for Space: UNIDROIT

The first era of space law produced almost exclusively international public
law. However, the increased interest in and fragility of space
commercialization has encouraged the development of international private
law. The most striking example of this is the Convention on International
Interests in Mobile Equipment (Convention) and its Preliminary Draft Protocol
on Matters Specific to Space Assets (Draft Space Protocol).141 The Convention
recognizes that the modern world relies on expensive moving objects for
transportation. It addresses the financing of these objects and the concomitant
rights of the debtors and creditors. The Convention has three protocols, each in
a different stage of development: the Protocol on Matters Specific to Aircraft
Equipment; the Protocol on Matters Specific to Railway Rolling Stock; and the
Draft Protocol on Matters Specific to Space Assets.142
While all three protocols address similar subjects, the Draft Space Protocol
is particularly challenging. The satellite industry, compared to the aircraft and
rolling stock industries, is still young, meaning financing risks are greater.
Additionally, the inherent nature of the financed asset, a satellite, poses unique
problems that do not apply to aircraft and rolling stock. For example, in the
event of default an object in space cannot be physically repossessed. Even after
default a satellite must be maintained in order to prevent dangerous or
environmentally unsound on-orbit conditions.
It is reasonable to expect that clarifying, drafting, and negotiating the Draft
Space Protocol will continue for a number of years. The most important issues
have already been articulated and resolutions for a number of them have begun
to take shape.143 Among these issues are the relationship between international

140. See European Organization for the Exploitation of Meteorological Satellites Agreement on Joint
Transition Activities Regarding Polar-orbiting Operational Environmental Satellite Systems, June 24, 2003,
2003 U.S.T. LEXIS 49, at *1-5 (restating data denial related definitions). The Preamble of this follow-on
agreement to the IJPS Agreement also notes that future joint systems are intended and “additional agreements
are necessary” to ensure data continuity. Id. at *4.
141. Convention on International Interests in Mobile Equipment, International Institute for the Unification
of Private Law (UNIDROIT), Nov. 16, 2001 [hereinafter Convention], at http://www.unidroit.org/english/
conventions/mobile-equipment/mobile-equipment.pdf (last visited Mar. 16, 2004).
142. See generally Convention, supra note 141.
143. See generally UNIDROIT Committee of Governmental Experts for the Preparation of a Draft
Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Space
Property, 1st Sess., Dec. 15-19, 2003, at http://www.unidroit.org/english/internationalinterests/history.htm (last
visited Mar. 16, 2004).
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space law and the eventual final Space Protocol,144 the efficacy of available
remedies,145 and the nature of the creditor and debtor relationship.146
The emerging consensus appears to be that the Draft Space Protocol, when
adopted, will be an international law instrument regarding private law matters.
The question of whether or not a conflict exists between international space law
and the Draft Space Protocol was formally addressed twice by expert groups
and no conflict was found.147 However, discussion about the proper
relationship between the space treaties and the Draft Space Protocol
continues.148
With respect to the creditor-debtor relationship, the efficacy of available
remedies in the case of default is complicated by the fact that, generally, space
assets are not easily repossessed and most creditors will have to resort to
constructive repossession. With satellites, however, the right to use and control
is as important as taking physical control. To facilitate constructive
repossession, the computer codes that control the satellite can be placed in
escrow. The creditor then uses the codes to take over satellite operations.
Code escrow expedites repossession. Repossession is further complicated by
the fact that many satellites are high value assets that serve critical commercial
and/or public good functions. Time becomes of the essence when transfer of
use and control is necessary. For example, television and radio users have low
tolerance for failed reception. Moreover, many satellites have highly
sophisticated technical elements with sensitive national security implications.
The export of these elements is highly controlled as a matter of domestic law.
Finally, the code itself is software that is also subject to export controls. So
while code escrow facilitates financing, it also introduces sensitive national
interests into a private transaction, which may invite State action. A tension is
created between promoting debtor-creditor autonomy and State responsibility
for public health and safety. An emerging response appears to be identifying
an appropriate legal personality to serve as escrow agent with which data and
materials are placed subject to laws of the relevant State.149
As is expected with a protocol that deals with financing space assets, the

144. See Joanne I. Gabrynowicz, Notes on the UNIDROIT Committee of Governmental Experts for the
Preparation of a Draft Protocol to the Convention on International Interests in Mobile Equipment on Matters
Specific to Space Assets, 49 (December 15-19, 2003) (unpublished manuscript, on file with the author)
(examining whether conflict exists between UNIDROIT and treaties).
145. See id. at 1 (providing default remedies).
146. See id. at 52-53 (addressing competing interests in same asset).
147. See Draft Convention of the International Institute for the Unification of Private Law on International
Interests in Mobile Equipment and the Preliminary Draft Protocol Thereto on Matters Specific to Space
Property, U.N. COPUOS, 40th Sess., Agenda Item 8, at 7, U.N. Doc. A/AC.105/C.2/L.225 (2002), available at
http://www.oosa.unvienna.org/Reports/AC105_C2_L225E.pdf (last visited Mar. 28, 2004).
148. See Gabrynowicz, supra note 144, at 50 (recommending consideration at future meeting).
149. See Gabrynowicz, supra note 144, at 21 (noting issue of whether supervisory body subject to national
authority).
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debtor-creditor relationship is its heart and soul. Issues regarding that

relationship manifest in numerous ways. While some issues predictably reflect
the relative positions based on financing and contract concepts, there are also
those that reflect history and geopolitics.
Issues in the first category involve making appropriate distinctions between
project financing and asset financing, pre-launch financing and post-launch
financing, and assets in space and those intended for launch.150 These
distinctions arise through combining the long-term financing needs of a typical
satellite operator debtor with project analyses conducted by a typical financial
institution creditor. Building and launching a satellite can take years, and a
return on a satellite investment occurs only after a successful launch. These
distinctions allow phased financing and transfer of collateral, creating a
spectrum of relationships in which the relative rights and obligations between
the creditor and debtor change over time.151
The category of issues reflecting history involve debates between
technologically advanced nations and technologically disadvantaged nations.
An example is the question of whether to achieve balance between space asset
creditors, typically developed nations, and space asset debtors, typically
developing nations, or to encourage creditors to offer credit by limiting conflict
in a high-risk endeavor.152
Geopolitics break through the legal construct of creditors and debtors in the
debate between some socialist and some capitalist nations. The former believe
that the final protocol should have limited application to public service
satellites. In this view, continuity of services is paramount, even in cases of
default. For some nations in this group, this issue has the potential to prevent
acceptance of the Draft Space Protocol by their national governments. Other
nations do not see the issue in terms of jeopardizing public services, but rather
as making financing mechanisms available for public authorities to finance
their services. Satellites provide communication, navigation, data transfer,
broadcasting, and weather services. Individual satellite components, like a
rented transponder, can provide a public service on an otherwise commercial
satellite. Satellite function and technology thus have the potential to give
nearly every satellite a public aspect.
The globalization of commerce as well as the breadth of functions satellites
provide, suggest the Draft Space Protocol will continue to present its drafters
with leading edge legal issues.

F. Operating Globally, Acting Nationally: Emerging Global Systems

Since the first weather satellites were deployed in the 1960s, scientists and

150. See Gabrynowicz, supra note 144, at 9 (observing distinction between project and asset financing).
151. See Gabrynowicz, supra note 144, at 9-10 (discussing contractual and related rights).
152. See Gabrynowicz, supra note 144, at 9, 33 (noting relative risk levels).
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policymakers have envisioned a coordinated, long-term global space-based

system to monitor the Earth.153 Politics, economics, and changing scientific
priorities made this system an elusive goal. In the last two years, however, the
idea has risen to an unprecedented level of political visibility and the world’s
remote sensing nations have taken clear and decisive action toward establishing
such a system.
Establishing the integrated global observation system over ten years was an
action item at the 2003 G-8 summit.154 The Earth Observation Summit, held on
June 2, 2003 to address that action item, was attended by Ministers from the G-
8 and other nations. As a result, a plan and an intergovernmental organization
to carry it out was instituted.155
Determining which of the proposed system concepts will prevail involves
addressing a variety of legal issues. The most advanced agreement to date, the
Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in
the Event of Natural or Technological Disasters156 (Charter), addresses many
of these issues, including governing definitions, cooperative procedures,
availability of facilities, accession to the agreement, entry into force, expiration,
withdrawal, and agreement implementation. The Charter was activated 42
times since November 2000 for disasters that included floods, earthquakes, oil
spills, landslides, hurricanes, and fires.157
As existing individual satellites become more integrated in their operations
and as new interoperational systems are designed, over time the related legal
issues may encompass many things. The issues may include the relationship
among the Charter, the space treaties,158 the U.N. Principles,159 which are
specifically referenced in the Charter,160 and various nations’ domestic laws,
including the United States’ 1992 Act,161 France’s Remote Sensing Legal
Framework,162 Canada’s Access Control Policy,163 and India’s national

153. SPACE STUDIES BOARD, NATIONAL RESEARCH COUNCIL, EARTH OBSERVATIONS FROM SPACE:
HISTORY, PROMISE AND REALITY 25 (1995).
154. Science and Technology for Sustainable Development: A G8 Action Plan, EARTH OBSERVATION
SUMMIT (June 2, 2003), at http://www.earthobservationsummit.gov/g8_action.html (last visited Mar. 16, 2004).
155. GEO Purpose and Functions, Group on Earth Observation, at http://earthobservations.org/
purpose.asp (last visited Mar. 27, 2004).
156. Charter On Cooperation To Achieve The Coordinated Use Of Space Facilities In The Event Of
Natural Or Technological Disasters, Rev.3 (25/4/2000).2 (2000) [hereinafter Charter], at http://www.
disasterscharter.org/charter_e.html (last visited Mar. 16, 2004).
157. The Charter in Action, Feb. 2, 2004 (listing specific events that activated Charter), at http://www.
disasterscharter.org/disasters_e.html (last visited Mar. 16, 2004).
158. See generally supra notes 1-5 and accompanying text.
159. See generally U.N. Principles, supra note 71.
160. Charter, supra note 156, at pmbl.
161. 15 U.S.C. §§ 5601-5602 (2003).
162. See generally Phillippe Clerc, The State of Remote Sensing Law: French Regulation and Practice, in
PROCEEDINGS, 1ST INTERNATIONAL CONFERENCE ON THE STATE OF REMOTE SENSING LAW (Joanne I.
Gabrynowicz ed., National Remote Sensing and Space Law Center 2002) [hereinafter PROCEEDINGS].
163. See generally Phillip J. Baines, Balancing Interests: Toward Further Progress in the development of
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2004] SPACE LAW 1065

policies.164
As with the IJPS, an integrated system will give rise to definitional
questions. In addition to the categories of data definitions found in the U.N.
Principles,165 the Charter adds the new term “space data,” which is defined as
“raw data gathered by a space system controlled by one of the parties, or to
which that party has access, and transmitted or conveyed to a ground receiving
station.”166 Unlike the data categories in the U.N. Principles, which are
characterized by the technological aspects of the data, as well as by the fact that
they are gathered by a “space object,” the Charter appears to have the effect of
emphasizing the location of the system, space, over data characteristics.
The intended longevity of a global monitoring system also raises the
question of whether or not the occupation of the same orbit for many years
constitutes an appropriation of space by a satellite’s operating nation, which is
banned by the Outer Space Treaty.167 When faced with a similar issue, the
government partners to the International Space Station chose to address it by
specifically stating that, even though the station’s purpose necessitates a long-
term mission, “[n]othing in this Agreement shall be interpreted as . . .
constituting a basis for asserting a claim to national appropriation over outer
space or over any portion of outer space.”168 This may serve as a precedent as
the emerging global monitoring systems continue to evolve.

IV. CONCLUSION
Autonomy, separation, and emphasis on individual national space programs
were the hallmarks of the activities that gave rise to the international and
domestic space law forged during the Cold War. However, competition did co-
exist with cooperation and the single-nation spectaculars like Apollo and Mir
gave way to post-Apollo multinational endeavors like the International Space
Station. In the present era of globalization, in-tandem cooperation is
transforming into intentional integration. Like so many other human activities
at the dawn of the twenty-first century, the space law will be challenged to
nurture and guide the transformation. The opportunities to do so will be many
and varied.

a Regulatory Regime for Commercial Remote Sensing Space Systems in Canada, in PROCEEDINGS, supra note
162.
164. See generally Mukund Rao, et al., Issues for a Remote Sensing Policy and Perspective of the Indian
Remote Sensing Data Programme, in PROCEEDINGS, supra note 162.
165. See U.N. Principles, supra note 71, at princ. I.
166. Charter, supra note 156, at art. 1.
167. Outer Space Treaty, supra note 1, at art. 2.
168. Agreement Among the Government of Canada, Governments of Member States of the European
Space Agency, the Government of Japan, the Government of the Russian Federation and the Government of the
United States of America Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, 1998
U.S.T. LEXIS 212, at art. 2(2)(c) (entered into force Mar. 27, 2001).