For the past 20 years, people around the world have been able to watch the International Space Station (ISS or Station) appear as a small dot of light racing across the sky on a clear night. What may seem small is a football-field-sized home to one of humanity’s most expensive feats of engineering; the ISS is a laboratory and a habitat that serves as the first step toward a multigenerational race to occupy celestial bodies across the solar system permanently. A tribute to the synergistic, intercontinental friendships formed to advance humanity, the ISS has fostered one of the most enduring partnerships between the United States, Canada, Europe, Japan, and Russia.
Despite terrestrial politics, the ISS’s Intergovernmental Agreement and enabling Memoranda of Understanding (MOU) have formed the glue in building a permanently inhabited civil laboratory in low Earth orbit to conduct science. In a litigious world where contracts run into the hundreds of pages for simple research agreements, a few documents less than 50 pages in length keep a vehicle in a safe orbit 250 miles above Earth. The legal framework establishing the ISS is inspirational for its simplicity and efficiency. It is unique because the framework requires no enabling treaties and maximizes cooperation by respecting each partner’s strengths while holding the relationship together through trust (all parties must agree to cross-waivers of liability).
ISS Operating Conditions and Research
The Agreement Among the Government of Canada, Governments of the 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 (Intergovernmental Agreement) first sets out the operating conditions for one of the most expensive human-made structures in history. Recognizing the importance of each nation’s contribution to human space exploration—whether that is robotics (Canada) or habitation (United States) or boosters (Russia)—has opened the door for two decades of research aboard the Japanese Experiment Module and Europe’s Columbus Module. The research performed in these modules is parceled based on an ISS participant’s level of support for Station operations, as laid out in the Intergovernmental Agreement. Through hours of research, the five partners have enabled the development of transformational medicine and assured a complete understanding of the health risks of human spaceflight.
Cross-Waivers of Liability
The Intergovernmental Agreement fosters peaceful relations by mitigating future conflicts through cross-waivers of liability against all claims for all Protected Space Operations. These cross-waivers flow down to every contract for the goods or services resulting from international cooperative agreements. “Protected Space Operations” broadly includes all activities related to the Station. In a regulatory framework where NASA has previously been prohibited from interacting with China and Russia, ISS partners’ willingness to waive liability for all claims shows an extreme amount of trust. Waiving liability for any claims for damage (whatever the legal basis) demonstrates that the nations involved in the Station respect one another’s engineering capabilities. There must also be trust in the soundness of each party’s decision-making in a risky environment where satellite collisions and near misses have occurred multiple times, and the lives of six astronauts are always at stake.
One of the more critical arenas where these cross-waivers arise is during launches. A dramatic example of this occurred in October 2018 when a Soyuz vehicle carrying two astronauts aborted during flight, resulting in a failed mission to the ISS, but no loss of life. Where more litigious partnerships could have resulted in months of legal battles regarding negligence or failed warranties, NASA relied on Russia to complete a thorough review of the accident, and the partners worked together to continue ensuring crewed flights to the ISS. With NASA’s imminent transition of flights from solely Russian Soyuz vehicles to the utilization of SpaceX and Boeing’s Commercial Crew vehicles, the level of confidence involved in putting the advancement of space travel ahead of monetary compensation for damages may be essential for the sustainment of the international partnerships holding together the ISS.
ISS Crew Code of Conduct
ISS Crewmembers’ conduct shall be such as to maintain a harmonious and cohesive relationship among the ISS crewmembers.
—Code of Conduct for the ISS Crew
Under the MOU, all nations are obliged to adhere to an international Crew Code of Conduct. Relative to other major international collaborations (e.g., the Scientific Committee on Antarctic Research or the United Nations), the first general rule of conduct does not emphasize ethics or research priorities (which can vary based on culture, values, or religion). Instead, the ISS Crew Code of Conduct emphasizes harmony. Further, the ISS Crew Code of Conduct does not emphasize each partner’s uniqueness or independence (unlike the International Maritime Organization’s Code of Ethics, for example). Instead, it stresses the value that all nations bring as one cohesive unit. Imagine, particularly in a time of loss or crisis, what could happen if nations focused on that word invoked by the earliest travelers into space, “friendship” (harkening back to John Glenn’s Friendship 7). The Crew Code of Conduct then goes on to lay out more mundane topics, such as the ISS Commander’s role and the protection of human research subjects. As with the MOU in general, the language is succinct, leaving readers with one primary focus for individual responsibilities aboard the ISS.
Analogous to the Harmony module aboard the ISS, which joins the United States, European, and Japanese modules, the law in this case functions to enable growth, research, and even commerce. In 2016, the module was equipped with an international docking adapter that will allow any vehicle that uses the international docking standards to join the Station. In yet another rare instance of openness and cohesiveness, the nations involved in the Station joined forces to establish international standards that would allow all space travelers to dock at the ISS. Much like your commonplace USB cord, this international docking standard was not cordoned off by one nation and kept a secret to slow the development of other vehicles or force interested nations to pay a fee to gain access to the Station. This standard was promulgated widely and without reserving intellectual property rights for any nation to encourage all participants to join and work together. This level of trust and this emphasis on harmony may seem idyllic. However, it extends to the network of ground communication systems scattered across the world in support of the ISS. For example, it continues to the development of Earth science and weather satellites between Germany, the United States, and even India; and, to the global classrooms of students engaged in calls with astronauts aboard the Station daily.
The Role of the Law in Humanity’s Incredible Feats
In an increasingly globalized world where humanity’s incredible feats will require immense collaboration, the ISS legal framework stands as a shining example of the role that law can play. Regardless of the conflicts that may arise, the ISS has shown what nations can accomplish when they band together. Every partner, no matter how small, contributes to the delivery of complex systems, but they are allowed and encouraged to do so on the terms that best suit them. Legal agreements must steer away from pointing fingers and instead focus on trust. For example, NASA has extended its hands to the international community through the Artemis Accords, released in May 2020, to enhance peaceful relationships among nations in lunar exploration.
This framework is not difficult to adapt to communities outside of the Space Station. An emphasis on cohesion can be built into contracts, shared through the licensing of intellectual property, expanded in international agreements, or even promoted through the collegial treatment of your fellow lawyers. A desire for harmony can be built through expanded alternative dispute resolution, increased pro bono work, and a bit of understanding during a tough negotiation. Counterintuitive as it may be in an adversarial system of law, promoting unity to achieve an incredible goal seems like a simple task. As young attorneys, developing our work habits during the COVID-19 pandemic when social distancing appears to be an enduring norm, it is our responsibility to honor these values and practice them in the office, in the courtroom, and on the international stage.