iss cooperation

ISS Cooperation: Recent Developments in Rule-Making

A. Farand Legal Affairs, ESA Headquarters, Paris

The recent changes MOUs. It has to be realised that some rules Since preparations for utilisation of the developed in the Operations Panel and User International Space Station (ISS) are now fully Operations Panel (SOP/UOP) may also be under way, the cooperation’s management taken up in a different form in the Multilateral bodies established pursuant to the Memoranda Crew Operations Panel (MCOP), for example, of Understanding (MOUs) linking NASA and because there will obviously be some level of each of the other Cooperating Agencies, have interaction between the handling of payloads started to take decisions and develop detailed and astronaut activities. rules that affect the rights and interests of all players in the cooperation, including users and Thirdly, no principles or organisation have yet the Agencies, thus becoming the forums for been agreed for ensuring systematic and developing far-reaching rules. formal notification of the detailed rules being developed by all the cooperation bodies, not Until the adoption of the Code of Conduct for the ISS crew on 15 only among the Partners, but also internally to September 2000 by the Multilateral Coordination Board (MCB), the the different services concerned in the rule-making process for all aspects of the cooperation was based on Cooperating Agencies. Notification of new rules high-level international negotiations between the Partner States or within the partnership, to ensure transparency Partners, on the one hand, and the Cooperating Agencies, on the in their application among other things, is other, the latter also being referred to as ‘the Partners’. These obviously imperative because the rights and negotiations have produced legal instruments which have been interests of third parties, essentially the users, published and also posted on the Internet, and can therefore be will be affected on a daily basis by these new consulted by anyone who is interested. Recent developments have rules, through the contractual relationships to shown that responsibility for rule-making on ISS cooperation is be established between the Agencies and shifting from the relatively self-contained environment of international users. negotiations to a broader base that is more difficult to control. Fourthly, the inadequate level of publicity for new rules outside the partnership may make it These recent developments have a number of difficult for scholars to carry out research using practical consequences. Firstly, the Agencies’ original material on any given subject, which representatives on the various bodies directly often might have implications far beyond ISS engaged in the rule-making process are now cooperation. In fact, there will probably not be more numerous and they are meeting more a complete lack of external publicity about new often than during the IGA (International rules, but rather a lack of consistency in Governmental Agreement) and MOU practice since the Cooperating Agencies have negotiations, not to mention frequent changes a wide variety of policies and practices in this in personnel assigned to these tasks. There is regard, and also because the legal regime therefore a strong possibility that the scope of governing public access to information differs the original ISS rules will be somewhat from one Partner State to another. broadened over time, because of the multiplicity of interpretations and applications. The Cooperating Agencies have discussed the possibility of giving in the future a legally- Secondly, there is no systematic exercise under binding status, with appropriate formal way within the partnership to decide on publicity, to a number of texts developed consistency between the rules being through dedicated Partners’ task forces or ISS developed in the various cooperation bodies, management bodies, when such texts affect compared not only with one another but also the rights and obligations of the ISS Partners or with the original prescriptions of the IGA and individuals. As the expression ‘implementing

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arrangement’ is not defined strictly in the IGA, decides to share its own utilisation rights in a this could provide the possibility to include all cooperative framework with other Partners ‘legally-binding’ texts in a new category of ISS under the IGA and MOUs, the actual implementing arrangements. Until now, only cooperation contemplated for such utilisation bilateral barter arrangements have been will be over and above its existing obligations characterised as ‘implementing arrangements’ under the IGA and MOUs, and will therefore and concluded in a more formal manner. entail new commitments, and thus new However, because of internal requirements arrangements. making it somewhat difficult for a number of Cooperating Agencies to conclude a legally- The International Space Life Sciences Working binding document on their own, they have Group (ISLSWG) is promoting the adoption by decided that a number of documents, such as the partners of a framework arrangement that almost all of those described below, will be will outline the basic rules, including the applicable merely as a ‘process’ or as respective parties’ responsibilities, for ‘guidelines’ complementing obligations contained conducting life-sciences experiments on board in the IGA and MOUs. This refers to documents the ISS. The ISLSWG is a body established a laying down a course of action to be put into number of years ago to conduct research in operation straightforwardly by the Cooperating that field onboard the US Space Shuttle and is Agencies, without necessarily generating rights composed of representatives not only from the and obligations in international law. ISS Cooperating Agencies, but also from European national space agencies such as Arrangement on life-sciences flight CNES and DLR. The understanding is that experiments on board the ISS such a framework arrangement would serve as We are currently seeing significant interest from an ‘umbrella’ for a series of letter arrangements existing space groups working in various fields (i.e. additional arrangements in a simplified of research in organising their ISS utilisation. format), each to be concluded over the years The question of whether utilisation of the and spelling out more precisely the details of Station is already fully covered by the Space specific experiments. Station Intergovernmental Agreement (IGA) and the MOUs has been asked on numerous Under the draft arrangement finalised in recent occasions by potential ISS users. It is clear that weeks, four of the five ISS Cooperating both the IGA and the MOUs contain a number Agencies (the Russian Space Agency having of overarching rules outlining how ISS utilisation chosen not to join the others in this exercise), rights will be apportioned, and otherwise as Parties to this arrangement, have agreed to: organised and controlled, between the – use consistently the ISLSWG-defined process Partners. It is also clear that whenever a Partner for the advertisement of opportunities, review

Figure 1. The in-orbit configuration of the International Space Station in December 2001

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Figure 2. ESA Astronaut Claudie Haigneré at work on the ISS in October 2001

of proposals and selection of life-sciences From the reading of the draft guidelines experiments finalised by the Multilateral Commercial Group –make available to the international life-sciences (MCG) in March 2001, one can conclude that research community their life-sciences hard- the drafters have been remarkably prudent. ware and utilisation resources They have recognised, to all intents and – share the cost of common activities conducted purposes, that commercial activities in the for the purpose of executing the international various fields shall be ‘promoted and life-sciences research programme, such as encouraged’ and that existing rules, i.e. in the the administration of the peer-review process. IGA, the MOUs and the Crew Code of Conduct, shall be applied whenever relevant to Obviously, this approach could be used for ISS commercial activities. This prudence could other fields of ISS utilisation in the future. be explained by two factors: (a) the fact that utilisation of the ISS is considered under the Guidelines on commercial activities IGA as a right that could be freely exercised, pertaining to the ISS and hence the reluctance to accept new Since December 2001, the ISS Cooperating impediments, and (b) the significant difference Agencies have held discussions on several existing between the Partners’ markets for both occasions to develop a text for guidelines conventional (utilisation-related) and non- applicable to commercial activities pursued conventional (i.e. image-related) ISS com- within the framework of the ISS programme. mercial activities and therefore the need to not These activities could be defined as: (a) the use jeopardise the future prospects for extra of all elements of the ISS, including provision of revenues. flight opportunities to space tourists, and (b) a number of activities conducted on Earth for The positive side of the exercise having resulted exploiting the overall image of the ISS, such as in these guidelines is that the Partners have put advertising, merchandising and sponsorship, on paper their basic understandings of the way for the purpose of collecting revenue that could in which ISS commercial activities should be then be spent on ISS utilisation. carried out, thus providing a first version of a

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document that could gradually be expanded Soyuz vehicle, the American Dennis Tito, the and improved. This is particularly important Cooperating Agencies’ representatives meeting with regard to the non-conventional activities at the MCOP have developed a document for which the Cooperating Agencies have entitled: ‘Principles regarding processes and accepted: (a) to develop a ISS global brand criteria for selection, assignment, training and management plan, preferably before the end of certification of ISS crew members’, which 2002, and (b) to limit themselves to the became effective in November 2001. This promotion of their own contributions to the ISS, document addresses such matters as and therefore not use the global ISS image in suitability criteria, including medical, their commercial promotion activities before the behavioural and linguistic aspects, the process completion of the above-mentioned plan. for the assignment of crew members to a specific flight, the requirements for training and Process for the involvement of non-Partner the certification of flight-readiness. entities in the ISS Programme The Cooperating Agencies worked throughout It is worth mentioning that, for the first time, a 2001 to develop a process, finally approved in document developed multilaterally establishes March 2002 by the MCB, for implementing two categories of astronauts, the professional Articles 6.4 and 9.3(a) of the IGA pertaining to astronaut and the spaceflight participant, the non-Partner participation in ISS cooperation. latter being an individual assigned for a single The main objective of these provisions is to mission under a short-term contract concluded provide all Partner States with the occasion to with the sponsoring agency providing the flight assess the requests, primarily from a ‘foreign- opportunity. The document indicates that both policy standpoint’, for participation in ISS categories of astronauts could be considered activities of States, or agencies or private for an Expedition Crew flight opportunity, i.e. entities or individuals of States, other than those long-term flights accruing to the Partners those having signed the IGA. It is understood by virtue of their participation in the cooperation that all other technical and programmatic pursuant to the IGA and MOUs, or a visiting aspects, such as safety implications, should crew flight opportunity, this being a short- generally be handled through the ISS duration mission including a sojourn onboard management bodies in due time. the ISS. Clarification of the selection criteria among the Partners through the drawing up of One of the time-consuming issues was to the above document contributed significantly determine whether a strict interpretation of the to the success of the flight of the second space IGA would make it necessary to request all tourist, the South African Mark Shuttleworth, in Partners’ concurrence or consensus only when April/May 2002. contemplating ‘the use of a user element’ (i.e. laboratory) by a non-Partner. Finally, the Conclusions Cooperating Agencies agreed on a broad The interests of the ISS users, whatever their interpretation of the IGA which would make it fields of activity, are likely to be at the heart of necessary to request consensus or the rule-making process for ISS cooperation for concurrence by all Partners regarding use of the foreseeable future. The main challenge for any element, whether a user resource or the ISS Partners is to streamline and publicise another element of the ISS, by a non-Partner, the various sets of rules – those already existing including the presence of a non-Partner’s and those still being developed – in such a way spaceflight participant onboard the ISS. They as to make them transparent and easily also agreed that there was a need to provide understandable to all concerned. Also, there for a time-limited ad-hoc process, i.e. with strict will be a significant benefit in ensuring over time specific delays for all Partner States to provide the legally binding character of the various an answer, because of: (a) the burden and extra rules, within the meaning of that expression in costs involved, and the corresponding the ISS partnership. This will contribute to the contractual uncertainties, for the sponsoring establishment of greater legal certainty when Cooperating Agency, and (b) the hope that the proposing to potential users a series of processing of consensus/concurrence requests prescriptions developed by the Partners which should become a fairly routine matter over the are bound to affect the rights and interests of years, and such processing should therefore be those users. r both simple and transparent.

Criteria for the selection of ISS crew members In response to the difficulties encountered by the partnership during preparations for the flight of the first space tourist using the Russian

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