Institute of Air and Space Law
Montreal, Quebec, CANADA
Institute of Air and Space Law
Wendell W. Mendell
(Corresponding member, International Academy of Astronautics)
Solar System Exploration Division
NASA Johnson Space Center
Houston, Texas, USA 77058
The 1991 summer session of the International Space University (ISU) was held from June 22 through August 30, 1991, at Toulouse, France, hosted by the Ecole Nationale de l'Aviation Civile (ENAC) and the Formation Internationale Aeronautique et Spatiale (FIAS). During the session, 137 students from 27 countries were faced with the design project "International Mars Mission". The product of scores of core lectures, advanced lectures, workshops, and task groups is a 697-page final report1. One task group had to deal with "International Relations and Agreements"2
The major goal of the IMM activity was to design a long-term, multinational program to conduct scientific exploration of Mars and the martian system and to develop and/or validate technology enabling the eventual human settlement of the planet. This paper will focus on the political issues and a few legal issues of the project.
The last few months have seen a tremendous change in international relations. The Design Project was confronted with the revolutionary changes in the Soviet Union and the dissolution of the former homogeneous block of the Soviet Union Republics. Obviously, those developments are far from being finished. Since the changes in the Soviet Union were so swift and so unforeseen, it is impossible to make assumptions concerning the final structure and the balance of power in the Soviet Union.
Nevertheless, the Soviet Union recently took the first steps to open their space facilities and capabilities to Western use. On the other hand, statements by Russian President Yeltsin expressing his doubts that it is right "to spend vast sums on space exploration when living conditions are so poor"3 do not encourage optimism for future Soviet space-related activities.
However, similar doubts have been expressed continuously over the years in the West. Budgetary constraints have led to cuts in Western space projects. As a result, the need to work towards much closer international cooperation and collaboration in large-scale projects is broadly accepted even if the details are heavily disputed. It might be rather optimistic, but the ISU Task Group is convinced that the recent developments and discussions in the Soviet Union will increase the level of international cooperation and collaboration in space-related activities.
Space policy is only a part of the overall policy of a country; and it cannot be discussed without due regard to other fields of policy like economics, technical developments, and national security. The different policies of the relevant countries in those fields are as diverse as the motivations for participation in an international Mars mission. Priorities and the degree of motivation will entirely depend on the technical and industrial standards of each country as well as on the national policy related to space activities. Without giving priority, the Task Group identified the following major motivations for participation:
Any international effort aimed at strengthening collaboration and cooperation in space has to take into account the policies and motivations of the potential partners.
It is rather trivial - but nevertheless crucial - that a long term project like an international Mars mission has to be supported by a stable political and financial framework. One of the most difficult and contentious points in international cooperation in space in the past has been the ability of the partners involved and their legislative bodies to agree on long term financial commitments which are not the subject of a annual budgetary discussion or which are not used as a weapon in the political dispute among branches of government. We are fully aware of the constitutional problems in some major countries of the world which will more than likely participate in this mission. Nevertheless, the experiences with such a large project as Apollo show clearly that, if the project is carried out with the support of a broad majority in the parliament and within the population in general, a tremendous success can be achieved. However, a project will have such support only in the cases where the motivations and policies of the participating nations are reflected in it.
The Task Group has chosen an evolutionary approach to the organizational structure of the International Mars Mission. In examining different projects - current and historical - related to space, such an approach seems to be the most feasible way to create a more harmonized and more confident collaboration. An evolutionary formation process can defuse potential conflicts before the organization is set up. Controversial issues can never be completely excluded, but they can be mitigated by a very careful and rather long term evolution starting with a basically informal exchange of information on a scientific and technical basis and proceeding to a classical structure for an international intergovernmental organization.
Everyone engaged in space activities is familiar with the Space Agency Forum on the International Space Year (SAFISY), composed of 29 national space agencies and 10 international affiliates. Also familiar is the Interagency Coordinating Group (IACG) for the Comet Halley missions in 1986. Those two examples show quite clearly that informal cooperation - avoiding bureaucracy and not focusing predominantly on political prestige - can work efficiently and be very satisfactory for all the parties involved. They highlight the positive circumstances that can exist, and they can serve as excellent precedents. Having due regard to the national sovereignty of the partners on one side but on the other side assembling highly informed and responsible people with a clearly defined purpose, incredible results can be produced. The Task Group identified a three-step evolution:
The examples mentioned above served as inspiration for the Task Group to design a very informal and simple cooperative interaction to exchange ideas and current information about existing Mars-related national activities. This non-governmental Forum shall consist of a very small permanent staff of about five people and several hundred experts from all over the world covering all the relevant areas. It shall be affiliated with an existing organization such as the International Academy of Astronautics. It is preferable that the Forum receive funds from non-governmental sources and have a lifetime of about two years. The goals of the Forum will be the following:
The outputs of the Forum will be:
In contrast to the Forum which is composed of independent experts, the ICEM shall consist of representatives of each country and each international organization interested in the project. It will include scientists, engineers, lawyers, and other professionals necessary for creating the International Space Exploration Organization (ISEO). This composition will ensure that top-level politicians and scientists work together, some of them only as part-time consultants, others as full-time staff members, later joining the ISEO. This phase in the evolution of the project is of particular importance because all the partners involved have to agree on the future structure of ISEO and its purposes as well as the Mars mission structure and its objectives. The purpose of ICEM has been defined as follows:
ICEM shall be funded by all the partners involved on a equal basis and shall exist about two or three years. It will lead to an international intergovernmental conference in order to found the International Space Exploration Organization, whose charter is based on a convention drafted by ICEM.
The final step in the evolution will be the creation of a classical international intergovernmental organization, structured in a rather conventional way. ISEO will consist of:
Assembly of the Contracting Parties. The Assembly will be composed of all Contracting Parties and will have functions common to other international organizations. The Task Group had to deal with the fundamental problem of creating an international organization while keeping it functional. They decided that initial participation in ISEO will be limited to a few entities already leading in space activities. However, there is also interest among others which have not yet reached the level of technical capability to be broadly involved in space activities. Therefore, the initial membership in ISEO will be open to all the parties involved in ICEM and to those having participated at the founding conference. Subsequent membership will be open to countries and international organizations having demonstrated interest in a Mars mission and having committed to a minimum amount of funding in order to finance the ISEO. Each Contracting Party will have one vote in the Assembly independent of its financial contribution.
Board of Governors. The Board of Governors will be the central political body of ISEO. All decisions not expressly reserved to the Assembly will be taken by the Board. It will have the responsibility for the design, development, construction, establishment, operation, and maintenance of the programs approved by the Assembly and will implement the general political outlines and long-term objectives issued by the Assembly. Because of its central functions, the Board will have a weighted voting system in which each Governor representing a Contracting Party or a group of Contracting Parties has a certain number of votes, proportional to the contribution of the Contracting Party or group of Contracting Parties. The total amount of this contribution shall not be less then 9% of the overall contributions. The national space agencies presumably will represent the Contracting Parties. This will ensure that they are involved on the top level.
Director General. The Director General will be the chief executive and legal representative of ISEO and will be responsible for the daily work of the organization.
Advisory Board and Ad-hoc Arbitration. These two will not be permanent bodies of ISEO. The Advisory Board shall be established by the Board of Governors whenever necessary and shall be composed of independent experts from industry, academia, and so on. The Arbitration Commission will be established on a case by case basis in order to settle disputes between the Contracting Parties themselves or between Contracting Parties and ISEO. Its decisions will be binding.
Type of Agreement. ISEO shall be based on a classical international intergovernmental agreement to be ratified by the partners involved. The Task Group chose this type despite the constitutional problems already discussed in this paper. Simply put, other types of agreement were held less preferable. For example, the IACG is appropriate for the initial phase but impractical for a long term project.
A "Space Station Freedom" type of agreement seems to be unacceptable for some of the potential partners. In fact, the Freedom experience is not very encouraging, but the group believes that international efforts must still be pursued if the partners want to see the program work and if they cannot complete the mission alone due to the enormous financial burdens.
The evolutionary process of forming the organization should help to increase the confidence in the potential partners and should help to avoid disputes later about fundamental issues such as objectives and funding. An international intergovernmental agreement ratified by all the partners will be one aspect of the required stable framework discussed above.
Funding framework. The group examined different approaches to funding the ISEO. Existing examples of funding large scale projects were found unsatisfactory, and therefore a new approach has been developed. The system of ISEO consists of two types of contributions: (1) direct financial contributions ISEO and (2) in-kind contributions. This system contains familiar elements from the Space Station Freedom partnership and the ESA funding system, supplemented by some new elements.
Direct financial contributions given to ISEO shall cover the following activities:
This system is supplemented by in-kind contributions from the participating partners in the form of program elements defined by the Board of Governors at the end of Phase B. Each Program Element is subscribed by a single Contracting Party or a group of Contracting Parties and built by the subscriber. It is important that all the elements be defined in such a way that they fit within the programs of one or several Contracting Parties. In the ISU IMM report1 is a list which summarizes all the technologies potentially useful for a Mars Mission and the countries currently working on them.
As agreed on by the Board of Governors, a certain percentage of the overall volume of work on the program elements will be reserved for subscription by nonmembers of the organization. This subscription might be the first step to enter into deeper contacts with ISEO and to become eventually a full member of ISEO. All program elements not subscribed after a certain period in time shall be delivered by ISEO and be financed by additional direct contributions from the Contracting Parties. This system ensures that all program elements will be available when the mission becomes operational.
The Task Group is convinced that this funding system is a very good compromise between a funding system like the ESA model, where the organization in fact has a very powerful position, which may not be acceptable for non-European Contracting Parties; and a model like Space Station Freedom, where no funding flows between the partners. ISEO has therefore a changing function, depending on which project phase is current. In Phases A and B, ISEO has quite centralized functions with far-reaching influence. This is much easier to accept because of the powerful role the Board of Governors plays and the political control it exercises. In Phase C/D, ISEO rather monitors the progress and the performance of the Contracting Parties and only in the case of non-subscribed elements will ISEO have direct influence on the work to be performed. The Contracting Parties have the choice of which elements suit their particular space projects and space policy.
The elements shall be designed in such a way as to reduce the transfer of technology to the interfaces between them. In this phase, ISEO will only deal directly with the national space agencies or other national authorities responsible for the program which have the obligation to deliver all data needed for ISEO to carry out its monitoring functions.
In-kind contributions have the great advantage that they enable countries without convertible currencies and/or with balance of payments problems to be involved in the Mars mission. Some potential partners have excellent space-related facilities like launching sites, heavy launch vehicles, tracking stations, or training facilities. All these facilities shall be open for the use by ISEO and shall be considered as in-kind contribution.
One problem is the launch cost itself. The group came to the conclusion that launch cost should not be considered as in-kind contribution but as a common cost to be paid by ISEO. Launch costs today comprise approximately 50% of the overall program costs. The Contracting Parties delivering the launch facilities and the launch vehicle would have too much influence in ISEO since the allocation of votes in the Board of Governors depends on the in-kind contributions given to ISEO.
Of central importance in this system is the evaluation of the contribution. The management structure has to provide the mechanism ensuring that the in-kind contributions are evaluated in a reasonable and acceptable way. The group is convinced that funding will be the key issue in future cooperation. If ISEO has an accepted authority and is based on mutual confidence, the Board of Governors' evaluations shall be less problematic.
The model developed in the 1991 Design Project "International Mars Mission" has the following characteristics:
The model developed in the report might be very ambitious and difficult to accept considering today's point of view. However, history has shown that politics and politicians are capable of change. The events of recent months show this quite clearly.
1. International Space University (1991) International Mars Mission, Final Report of the 1991 ISU Design Project, W. W. Mendell and V. Legostaev, Co-Directors. International Space University, Cambridge, MA, USA, 697pp.
2. The original Part III, Chapter 1 is written by Yves Boillot (France), PolyAnna Bryant (USA), Carlo Golda (Italy), Christian Hoffmann (Austria), Celine Levesque (Canada), Noel Siemon (Australia), Wilhelm Stoffel(Germany), and Janet Wilhelm (USA).
3. International Herald Tribune, September 4, 1991.