TREATIES AND OTHER INTERNATIONAL ACTS SERIES 02-712 

________________________________________________________________________ 

SPACE COOPERATION 

 Agreement between the 

UNITED STATES OF AMERICA 

and JAPAN 

Effected by Exchange of Notes at 

Washington July 12, 2002 

 with 

Memorandum of Understanding 
 NOTE BY THE DEPARTMENT OF STATE 

 Pursuant to Public Law 89—497, approved July 8, 1966 

(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued 

under the authority of the Secretary of State shall be competent 

 evidence . . . of the treaties, international agreements other than 

treaties, and proclamations by the President of such treaties and 

international agreements other than treaties, as the case may be, 

therein contained, in all the courts of law and equity and of maritime 

jurisdiction, and in all the tribunals and public offices of the 

United States, and of the several States, without any further proof 

or authentication thereof.” 
JAPAN 

Space Cooperation 

Agreement effected by exchange of notes at 

 Washington July 12, 2002; 

 Entered into force July 12, 2002. 

 With memorandum of understanding. 
DEPARTMENT OF STATE

WASHINGTON

July 12, 2002

Excellency:

I have the honor to refer to the recent discussions

between representatives of the Government of the United

States of America and of the Government of Japan

concerning the terms and conditions whereby cooperation

on the Second Balloon-Borne Superconducting Magnet

Spectrometer Program (hereinafter referred to as "the

Program") will be undertaken between the two Governments.

In consideration of the continuing mutually

beneficial relationship between the two Governments in

the field of peaceful exploration and use of outer space;

taking into account the Agreement between the Government

of the United States of America and the Government of

Japan on Cooperation in Research and Development in

Science and Technology, signed at Toronto, on June 20,

1988, as extended and amended; and reaffirming that the

provisions of the Agreement between the Government of the

United States of America and the Government of Japan

Concerning Cross-Waiver of Liability for Cooperation in

the Exploration and Use of Space for Peaceful Purposes,

signed at Washington, on April 24, 1995, and the Exchange

His Excellency,

Ryozo Kato,

Ambassador of Japan.

DIPLOMATIC NOTE

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and the Government of Japan shall be held through

diplomatic channels with a view to finding a mutually

acceptable solution.

5. The present arrangements shall remain in force for

a period of ten years, unless terminated by either

Government upon six months' written notice of its

intention to terminate them through diplomatic channels.

The present arrangements may be extended or amended by

mutual written agreement of the two Governments.

I have the further honor to propose that, if the

foregoing arrangements are acceptable to the Government

of Japan, this Note and Your Excellency's Note in reply

shall constitute an agreement between the two Governments,

which will enter into force on the date of Your

Excellency's reply.

Accept, Excellency, the renewed assurances of my

highest consideration.

For the Secretary of State:

I certify this copy to be a true copy of the signed original.

Joseph E. Seman
EMBASSY OF JAPAN

WASHINGTON, D.C.

July 12, 2002

Excellency:

I have the honor to acknowledge the receipt of Your

Excellency's Note of today's date, which reads as follows:

"I have the honor to refer to the recent

discussions between representatives of the Government of

the United States of America and of the Government of

Japan concerning the terms and conditions whereby

cooperation on the Second Balloon-Borne Superconducting

Magnet Spectrometer Program (hereinafter referred to as

"the Program") will be undertaken between the two

Governments.

In consideration of the continuing mutually

beneficial relationship between the two Governments in

the field of peaceful exploration and use of outer

space; taking into account the Agreement between the

Government of the United States of America and the

Government of Japan on Cooperation in Research and

Development in Science and Technology, signed at Toronto,

on June 20, 1988, as extended and amended; and

reaffirming that the provisions of the Agreement between

the Government of the United States of America and the

Government of Japan Concerning Cross-Waiver of Liability

for Cooperation in the Exploration and Use of Space for

Peaceful Purposes, signed at Washington, on April 24,



IMPLEMENTING ARRANGEMENT

(MEMORANDUM OF UNDERSTANDING)

BETWEEN THE

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

OF THE UNITED STATES OF AMERICA

AND THE

INSTITUTE OF SPACE AND ASTRONAUTICAL SCIENCE

OF TEE MINISTRY OF EDUCATION,

CULTURE, SPORTS, SCIENCE AN]) TECHNOLOGY OF JAPAN

FOR COOPERATION FOR A SECOND

BALLOON-BORNE SUPERCONDUCTING MAGNET SPECTROMETER
Table of Contents

Preamble 3-4

Article 1 Scope of Activities 4-5

Article 2 Responsibilities of NASA 5

Article 3 Responsibilities of ISAS 5

Article 4 Program Coordination 5

Article 5 Exchange of Technical Data and Goods 5 - 6

Article 6 Intellectual Property Rights 6

Article 7 Rights and Distribution of Experiment 7

Derived Data

Article 8 Financial Arrangements 7

Article 9 Customs, Entry and Temporary Residence, 7-8

and Overflight

Article 10 Public Information 8

Article 11 Allocation of Risks 8 -11

Article 12 Mishap Investigations 11

Article 13 Ownership of Equipment 11

Article 14 Effect on Other Arrangements 11

Article 15 Amendments 12

Article 16 Entry into Force and Duration 12

Article 17 Termination 12

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PREAMBLE •

The National Aeronautics and Space Administration (NASA) of the United States of

America and the Institute of. Space and Astronautical Science (ISAS) of the Ministry of

Education, Culture, SpOrts, Science and Technology of Japan (hereinafter referred to as

"the Parties"), pursuant to paragraph 2 of the Exchange of Notes between the

Government of the United States of America and the Government of Japan of

July 12, 2002, concerning cooperation on a Second Balloon-borne Superconducting

Magnet Spectrometer (hereinafter referred to as the "Exchange of Notes");

With a view to setting forth detailed terms and conditions for cooperation on a Second

Balloon-borne Superconducting Magnet Spectrometer Program;

Recognizing the desire to extend mutually beneficial cooperation established in previous

joint space research projects;

Affirming their mutual interest in cooperative scientific investigation of cosmic rays

using a balloon-borne superconducting magnet spectrometer;

Recognizing the previous cooperation of both Parties in the area of cooperative scientific

research requiring NASA balloon launches and associated activities;

Recognizing the success of their cooperation under the Implementing Arrangement

(Memorandum of Understanding) for Cooperation for a Balloon-Borne Superconducting

Magnet Spectrometer of August 1, 1996;

Recognizing the mutual benefit to be derived from working together for the peaceful use

of space for the welfare of all humankind;

Considering the respective interests of the Parties in the potential for commercial

applications of space technologies for the benefit of the peoples of both countries;

Recognizing the value to international political harmony of combining efforts for the

efficient exploration of outer space;

Recognizing their efforts as members of the Missile Technology Control Regime

(MTCR);

Recognizing that for the purposes of this cooperative effort, the Goddard Space Flight

Center and the University of Maryland are related entities of NASA;

Recognizing for the purposes of this cooperative effort, the University of Tokyo,

High Energy Accelerator Research Organization (KEK), and Kobe University are related

entities of ISAS;
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Recognizing for the purposes of this cooperative effort, the Agreement between the

Government of the United States of America and the Government of Japan Concerning

Cross-Waiver of Liability for Cooperation in the Exploration and Use of Space for

Peaceful Purposes, done at Washington on April 24, 1995, and the Exchange of Notes of

the same date between the Government of the United States of America and the

Government of Japan concerning subrogated claims;

Recognizing for the purposes of this cooperative effort, the Agreed Minutes Concerning

the Agreement between the Government of the United States of America and the

Government of Japan Concerning Cross-Waiver of Liability for Cooperation in the

Exploration and Use of Space for Peaceful Purposes, done at Washington on December

8, 2000;

Have agreed as follows:

ARTICLE 1

SCOPE OF ACTIVITIES

The highest priority science investigations for the high-energy cosmic ray physics and

astrophysics discipline include investigations that require the exposure of magnet

spectrometers to the space environment. In order to meet this priority, a thin solenoid

magnet and a real-time particle detector system for Balloon-Borne Experiments with a

Superconducting Magnet Spectrometer (hereinafter referred to as "BESS") has been

developed by U.S. and Japanese scientists. During the U.S.-Japan BESS collaboration

from 1993 to 2001, seven flights were successfully conducted, yielding significant

scientific results such as the first definitive detection of mass-resolved cosmic antiprotons

and the first measurement of the antiproton flux at low energies.

The primary purpose of this Implementing Arrangement (Memorandum of

Understanding) is to provide continued support for the cooperative U.S.-Japan program

to fly BESS experiments using NASA's stratospheric research balloon launch, tracking,

and recovery capability. It is envisioned that this cooperative program will continue to

produce significant scientific results that will complement the exposure of magnet

spectrometers in space. The primary scientific objectives of this cooperative program are

to search for anti-nuclei and make precise measurements of antiprotons and other

components of cosmic rays in an energy range not accessible in the International Space

Station orbit The search for antimatter should shed light on the matter/antimatter

asymmetry of the universe, and it might provide insight into the nature of dark matter. A

second major scientific objective of the BESS program is to measure the spectra of

protons and helium and their isotopes over a large fraction of the solar cycle, at least

several years prior to and several years following the solar magnetic field reversal. The

relative flux of particles of different charge signs before and after the solar magnetic field

reversal constrains models of solar modulation and propagation of charged particles in

the heliosphere. Comparison of BESS data with measurements by the Voyager
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spacecraft in the outer heliosphere will help determine the local interstellar cosmic-ray

spectra outside the solar system.

ARTICLE 2

RESPONSIBILITIES OF NASA

To carry out this program, NASA will:

Provide directly or through its related entities support for hardware upgrades to the BESS

scientific instrument and subsequent data analysis. NASA will also continue to provide

support for balloons, balloon launch, operations, ground support, and payload recovery

accompanied with balloon campaigns for approximately one flight opportunity per 1 — 2

years for conventional flights or one flight opportunity per 2 — 3 years for long-duration

flights.

ARTICLE 3

RESPONSIBILITIES OF ISAS

To early out this program, ISAS with

Provide through its related entities, which will include the University of Tokyo, High

Energy Accelerator Research .Organi7ation (KEK), and Kobe University, the BESS core

scientific instrument, and hardware upgrades of the instrument and subsequent data

analysis. ISAS will also provide support for consumables required to carry ant balloon

exposures of the upgraded instrument.

ARTICLE 4

PROGRAM COORDINATION

The U.S. and Japanese science teams will work together to determine the specific science

objectives for each flight. The science teams will also work together to determine the

preferred locations for balloon staging and launches.

ARTICLE 5

EXCHANGE OF TECHNICAL DATA AND GOODS

Under this Implementing Arrangement (Memorandum of Understanding), the Parties

shall be obligated to transfer only those technical data (including software) and goods

necessary to fulfill their respective responsibilities under this Implementing Arrangement

(Memorandum of Understanding), in accordance with the following provisions:
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a) The transfer of technical data for discharging the Parties' responsibilities with

regard to interface, integration, and safety shall normally be made without

restriction, except as required by national laws and regulations relating to export

control or the control of classified data. If design, manufacturing, and processing

data and associated software, which are proprietary but not export controlled, are

necessary for interface, integration, or safety purposes, the transfer shall be made

and the data and associated software shall be appropriately marked. Nothing in

this Article requires the Parties or their related entities to transfer goods or

technical data contrary to national laws and regulations relating to export control

or control of classified data.

b) All transfers of proprietary technical data and export-controlled goods and

technical data are subject to the following provisions. In the event that a Party

finds it necessary to transfer goods, which are subject to export control or technical

data, which is proprietary or subject to export controls, and for which protection is

to be maintained, such goods shall be specifically identified as such. For the

purposes of fulfilling the receiving Party's program responsibilities under this

Implementing Arrangement (Memorandum of Understanding), all technical data

shall be marked with a notice to indicate its us; and be disclosed by the receiving

Party and its related entities (e.g., contractors and subcontractors). The identified

goods and marked technical data shall not be disclosed or re-transferred to any

other entity without the prior written permission of the furnishing Party. The

receiving Party shall abide by the terms of the notice, and protect any such

identified goods and marked technical data from unauthorized use and disclosure.

The receiving Party also agrees to obtain these same obligations from its related

entities prior to the transfer. Nothing in.:this Article requires the Parties to transfer

goods or technical data contrary to national laws and regulations relating to export

control or control of classified data

c) All goods, marked proprietary data, and marked or unmarked technical data

subject to export control, which are transferred under the programs implemented

by this Implementing Arrangement (Memorandum of Understanding), shall be

used by the receiving Party exclusively for the purposes of the programs

implemented by this Implementing Arrangement (Memorandum of

Understanding).

ARTICLE 6

INTELLECTUAL PROPERTY RIGHTS

Nothing in this Implementing Arrangement (Memorandum of Understanding) shall be

construed as granting or implying any rights to, or interest in, patents or inventions of the

Parties, institutions acting on their behalf, or their contractors or subcontractors for

activities conducted under this Implementing Arrangement (Memorandum of

Understanding).
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ARTICLE 7

RIGHTS AND DISTRIBUTION OF EXPERIMENT DERIVED DATA

Data from all flights will be transferred to the ISAS and NASA data centers as designated

in the project implementation plans. These implementation plans will determine access

to the data prior to its being made available for distribution to the wider scientific

community. Data from all flights will be made available to the scientific community for

investigations within approximately 1-year after the flight of the scientific balloons.

Results of the experiments will be made available through publication in the appropriate

journals or other established channels as soon as practical and consistent with good

scientific practice. In the event such reports or publications are copyrighted, ISAS and

NASA shall have a royalty-free right under the copyright to reproduce, distribute, and use

such copyrighted work for their own purposes.

. ARTICLE 8

FINANCIAL ARRANGEMENTS

1. The Parties shall be responsible for funding their respective . activities, under this

Implementing Arrangement (Memorandum of Understanding). Obligations under this

Implementing Arrangement (Memorandum of Understanding) shall be subject to the

availability of appropriated funds.

2. All activities under this Implementing Arrangement (Memorandum of

Understanding) shs11 be conducted in a manner consistent with the respective national

laws and regulations of each country.

ARTICLE 9

CUSTOMS, ENTRY AND TEMPORARY RESIDENCE, AND OVERFLIGHT

1. In accordance with the laws and regulations of each country, each Party shall arrange

free customs clearance and waiver of all applicable duties and taxes for equipment and

related goods necessary for the implementation of this Implementing Arrangement

(Memorandum of Understanding). In the event that any customs fees or taxes of any

kind are nonetheless levied on such equipment and related goods, such customs fees or

taxes shall be borne by the Party levying such fees or taxes. The Parties' obligation to

ensure duty-free entry is reciprocal.

2. In accordance with the laws and regulations of each country, each Party shall

facilitate the provision of the appropriate entry and residence documentation for the other

Party's nationals who enter, exit and reside within its territory in order to carry out

activities under this Implementing Arrangement (Memorandum of Understanding).
3. In accordance with the laws and regulations of each country, each Party shall

facilitate the provision of aircraft over-flight clearances as necessary in order to carry out

activities under this Implementing Arrangement (Memorandum of Understanding).

These arrangements shall be implemented on a reciprocal basis.

ARTICLE 10

PUBLIC Th1PORMATION

The Parties may release public information regarding their respective efforts in

connection with this prOject. However, ISAS and NASA each agree to coordinate in

advance, any public information or activities, which relate to the other Party's

responsibilities or performance. Information that has been cleared previously, and has

not changed in content, will not require re-coordination_

ARTICLE 11 .

ALLOCATION OF RISKS

1. It is confirmed that the Agreement between the Government of Japan and the

Government of the United States of America Concerning Cross-Waiver of Liability for

Cooperation in the Exploration and Use of Space for Peaceful Purposes of April 24, 1995,

the Exchange of Notes of the mike date between the Government of Japan and the

Government of the United States of America concerning subrogated claims, and the

Agreed Minutes Concerning the Agreement between the Government of the United

States of America and the Government of Japan Concerning Cross-Waiver of Liability

for Cooperation in the Exploration and Use of Space for Peaceful Purposes, will apply to

activities under this Implementing Arrangement (Memorandum of Understanding).

2. The relevant text of Article 3 of the Cross-Waiyer Agreement as applied to the Parties

of this Implementing Arrangement (Memorandum of Understanding) provides as

follows:

1. For the purposes of this Article:

(a) A "Party" includes the Government of the United States of America, the

Government of Japan, and their agencies. It also includes those institutions

established under the laws and regulations of the United States of America or

of Japan for the implementation of the space development programs of the

respective countries and other entities, which may be designated in the Annex,

with respect to each specific joint activity for which they are designated.

(b)The term "related entity" means:

(1) a contractor or subcontractor of a Party at any tier;
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(2) a user or customer of a Party at any tier; or

(3) a contractor or subcontractor of a user or customer of a Party at any

tier.

The term "related entity" may also include another State or an agency or

institution of another State, where such State, agency or institution is an entity as

described in (1) through (3) above or is otherwise involved in a joint activity

listed in the Annex.

The terms "contractors" and "subcontractors" include suppliers of any kind

(c) The term "damage" means:

(1) bodily injury to, or other impairment of health of, or death of, any

person;

(2) damage to, loss of, or loss of use of any property;

(3) loss of revenue or profits; or

(4) other direct, indirect, or consequential damage.

(d) The term "launch vehicles" means an object or any part thereof intended

for launch, launched from Earth, or returning to Earth which carries payloads

or persons, or both.

(e) The term "payload" means all property to be flown or used on or in a launch

vehicle.

(1) The term "Protected Space Operations" means all activities pursuant to the

joint activities listed in the Annex, including launch vehicle activities and

payload activities on Earth, in outer space, or in transit between Earth and

outer space. It includes, but is not limited to:

(1) research, design, development, test, manufacture, assembly,

integration, operation, or use of launch or transfer vehicles, payloads,

or instruments, as well as related support equipment and facilities and

services;

(2) all activities related to ground support, test, training, simulation, or

guidance and control equipment and related facilities or services.

The term "Protected Space Operations" excludes activities on Earth which are

conducted on return from space to develop further a payload's product, or

process for use other than for the joint activity in question.

2. (a) Each Party agrees to a cross-waiver of liability pursuant to which each

Party waives all claims against any of the entities or persons listed in

sub-paragraphs (1) through (3) below based on damage arising out of
10

Protected Space Operations. This cross-waiver shall apply only if the person,

entity, or property causing the damage is involved in Protected Space

Operations and the person, entity, or property damaged is damaged by virtue

of its involvement in Protected Space Operations. The cross-waiver shall

apply to any claims, for damage, whatever the legal basis for such claims,

including but not limited to delict and tort (including negligence of every

degree and kind) and contract, against:

(1) the other Party;

(2) a related entity of the other Party;

(3) the employees' of any of the entities identified in sub-paragraphs (1)

and (2) above.

(b) In addition, each Party shall extend the cross-waiver of liability as set forth

in sub-paragraph 2(a) above to its own related entities by requiring them,

by contract or otherwise, to agree to waive all claims against the entities or

persons identified in sub-paragraphs (2)(a)(1) through (2)(a)(3) above.

(e) This cross-waiver of liability shall be applicable to liability arising from the

Convention on International Liability for Damage Caused by Space Objects,

done at the cities of Washington, London and Moscow, on March 29, 1972,

where the person, entity, or property causing the damage is involved in

Protected Space Operations and the person, entity, or property damaged is

damaged by virtue of its involvement in Protected Space Operations. •

(d) Not withstanding the other provisions of this Article, this cross-waiver of

liability shall not be applicable to:

(1) claims between a Party and its own related entity or between its own

related entities;

(2) claims made by a natural person, his/her estate, survivors, or subrogees

for bodily injury, other impairment of health or death of such natural

person;

(3) claims for damage caused by willful misconduct;

(4) intellectual property claims;

(5) claims for damage resulting from a failure of the Parties to extend the

cross-waiver of liability as set forth in sub-paragraph 2(b) or from a

failure of the Parties to ensure that their related entities extend the

cross-waiver of liability as set forth in sub-paragraph 2(b); or

(6) contract claims between the Parties based on the express contractual

provisions.

(e) Nothing in this Article shall be construed to create the basis for a claim or suit

where none would otherwise exist.

3. ISAS confirms that the Japan-based Society for Promotion of Space Science will buy

insurance coverage to hold harmless NASA and its related entities against liability arising
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from subrogated claims against such entities made by the Government of Japan, as a

subrogee based on damage arising out of Protected Space Operations.

4. NASA waives all claims of the Government of the United States of America,

including subrogated claims, against the Government of Japan, ISAS, and ISAS's related

entities based on damage arising out of Protected Space Operations.

ARTICLE 12

MISHAP INVESTIGATIONS

In the case of a mishap or mission failure, the Parties agree to provide assistance to each

other in the conduct of any investigation. In the case of activities, which may result in the

death of or serious injury to persons, or substantial loss of, or damage to property as a

result of activities under this Implementing Arrangement (Memorandum of

Understanding), the Parties agree to establish a process for investigating each such

mishap as part of their program/project implementation.

ARTICLE 13

OWNERSHIP OF EQUIPMENT

Equipment provided by NASA pursuant to this Implementing Arrangement

(Memorandum of Understanding) shall remain the property of the Government of the

United States. Equipment provided by ISAS pursuant to this Implementing Arrangement

(Memorandum of Understanding) shall remain the property of the Government of Japan.

ARTICLE 14

EFFECT ON OTHER ARRANGEMENTS

This Implementing Arrangement (Memorandum of Understanding) 01;111 not prejudice

other arrangements regarding matters outside or within the scope of this Implementing

Arrangement (Memorandum of Understanding) which the Parties concluded or may

conclude as mutually agreed. This Implementing Arrangement (Memorandum of

Understanding) shall furthermore not prejudice the cooperation of either Party with other

States and international orgsni7stions.
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'ARTICLE 15

AMENDMENTS

This Implementing Arrangement (Memorandum of Understanding) may be amended by

mutual written agreement of the Parties.

ARTICLE 16

ENTRY INTO FORCE AND DURATION

This Implementing Arrangement (Memorandum of Understanding) 014 enter into force

upon the date of signature by the Parties and shall remain in force for ten (10) years, and

may be extended by mutual written agreement of the Parties, provided that the Exchange

of Notes remains in force.

ARTICLE 17

TERMINATION

Either Party may terminate this Implementing Arrangement (Memorandum of

Understanding) at any time after providing the other Party with 6 months' advance

written notice of its intent. The obligations of the Parties set forth in the provisions in

Article 5 - Exchange of Technical Data and Goods; Article 6 — Intellectual Property

Rights; ,Article 9 — Customs, Entry and Temporary Residence, and Overflight; and Article

11 — Allocation of Risks shall continue to apply after the expiration or termination of this

Implementing Arrangement (Memorandum of Understanding).

Upon entry into force, the Implementing Arrangement (Memorandum of Understanding)

for Cooperation for a Balloon—Borne Superconducting Magnet Spectrometer of

August 1, 1996, shall terminate.

T-2

FOR THE NATIO AERONAUTICS FOR THE INSTITUTE OF SPACE AND

AND SPACE ADMINISTRATION OF ASTRONAUTICAL SCIENCE OF

THE UNITED STATES OF AMERICA: TEE MINISTRY OF EDUCATION,

CULTURE, SPORTS, SCIENCE AND

TECHNOLODY OF JAPAN:

_July 12. 2002

.7-c(1 1 5-. 

Date Date

I. certify this to . be a true copy of the original

signed document.