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INTERVIEW: Peggy Finarelli

Peggy FinarelliPeggy Finarelli’s career with NASA and other U.S. Government agencies focused on strategy development and negotiations in the fields of domestic space policy and international relations in science and technology. At NASA (1981-2000), she rose to the position of Associate Administrator for Policy Coordination and International Relations. She was responsible for developing the international Partnerships in the International Space Station (ISS) program, and led the U.S. team conducting the international negotiations that resulted in the agreements governing NASA’s cooperation with Europe, Japan, and Canada. These agreements provide the legal, policy and programmatic foundation for the multi-billion dollar ISS. As the International Space University’s Vice President for North American Operations (2000-2006), she was responsible for strategic Partnerships and business development in the United States for the Strasbourg, France-based international university. As an undergraduate at the University of Pennsylvania, she was elected to Phi Beta Kappa and graduated Magna Cum Laude with a BS and Distinction in Chemistry. She also has a Master of Science degree in Physical Chemistry from Drexel University, Philadelphia.

Ms. Finarelli received NASA’s Exceptional Service Medal in 1985, the Presidential Meritorious Rank Award in 1988, NASA’s Group Achievement Award in 1989 and 1994, the Women in Aerospace Outstanding Achievement Award in 1989, and NASA’s Exceptional Achievement Medal in 1991. She was elected to the International Academy of Astronautics in 2003. In 2004, she was awarded the International Cooperation Award of the American Institute of Aeronautics and Astronautics and was elected as a Fellow of the American Astronautical Society. In 2005, she was elected an Associate Fellow of the AIAA.

Peggy Finarelli Interview 11-14-2007

Res Communis: Can you tell us about your participation in the International Space Station (ISS) Memorandum of Understanding (MOU) negotiations?

Finarelli: I led the MOU negotiations for a period of about five years in the mid 1980s. We worked simultaneously at the space agency level on three bilateral MOUs – one with Europe, one with Japan and one with Canada. The negotiations were divided into two parts: the first agreement covered the design of the Station, and then the second agreement addressed the development, operations and utilization phases. The design phase agreement had the additional major purpose of laying the groundwork for negotiations for the follow-on agreement. It took about a year to do the first agreement. Then the second agreement took another couple of years. I led the NASA team that whole time, bringing in Europe, Japan, and Canada. The negotiations that brought the Russians into the ISS program took place in the early 1990s. That negotiation was lead by Lynn Cline of NASA.

It was decided to proceed by negotiating the agreements in a step-by-step fashion. That was because getting all of the Partners to agree to the whole deal would have been almost impossible while they were still organizing their own national political situations regarding ISS participation. Getting to the agreement on design was much easier. None of the really tough problems had to be cracked; such as, how the ISS was going to be managed; what the management decision mechanisms were going to be; what the cost-sharing arrangements were going to be; how export controls were going to be handled. Export control was an issue even back in the 1980s. How to handle military use of the station in the context of all partners’ commitment to “peaceful purposes” was also an issue. All of those issues were challenging ones that had to be dealt with in detail in the final agreement but in the initial agreement, prior to addressing these issues, it was important for each Partner to recognize that we really wanted to try to make this work. So the negotiations were broken into parts.

Res Communis: Tell us about your participation in the Intergovernmental Agreement (IGA) negotiations.

The IGA and MOU negotiations were separate, although closely coordinated. The IGA contained those provisions that needed to be made at the governmental level and that negotiation was led by the State Department with, obviously, strong support from NASA.

Res Communis: Was there any discussion about the existing treaty regime and how the IGA would relate to it, if at all?

Finarelli: There wasn’t, really, in the first agreement as I recall. Where that became interesting was in the second agreement. The second agreement addressed “peaceful purposes” and military use issues. That obviously related to treaty commitments on that subject and of course in the mid 1980s, there were vastly different interpretations on the part of all of the Partners as to the definitions of those terms.

The MOUs contained all the details of the more operational commitments that were agreed to: who was going to build what; management; resource allocation; cost-sharing; etc. The MOUs were bilateral agreements at the agency level between NASA and, respectively, the European Space Agency, the precursor to the Canadian Space Agency and, in effect, the precursor to JAXA (although the formal signatory for Japan was at the Government level.) The whole idea of the MOUs was to deal with the operational Partners. Then the IGA addressed those legal and political issues where commitments needed to be undertaken by Governments, not simply the agencies.

Res Communis: What was the most challenging part about negotiating the agreements?

Finarelli: There were a lot of challenges. One of the most challenging parts was putting together an agreement that would work between NASA and the other space agencies. We were dealing with engineers and operations guys. The Partners started talking to one another in earnest about Station in 1981. NASA’s culture has evolved quite a bit in the past twenty to twenty-five years regarding international partnerships. Back then we were dealing with a lot of folks in the centers, in particular, who hadn’t had experience working with international partners. There was a lot of skepticism about whether or not other countries could do the job and could be relied upon over the long term to do it. There were also concerns about how could we work with them. Negotiating all the necessary provisions into the agreement was tough because NASA was dealing with its own culture just as the other Partners were dealing with their cultures.

The management structures in the MOUs reveal all kinds of information about these challenges. First of all, there was the environment I was talking about at NASA. Then, it is important to remember what the ISS represented in the US. This was the height of the Cold War, and the ISS was a Reagan Administration Cold War initiative. It was a U.S. leadership initiative. For political reasons, there could not be a decision-making mechanism that was one-nation, one-vote. The U.S. had to be able to maintain control. “Control” is an ugly word, but that is what we were dealing with. The U.S. was also putting massive amounts of money into the ISS, building the infrastructure. Management decision making was a really tough issue because all of the Partners were, reasonably, looking at it from their own perspectives. They were dealing with their own accountability to legislative, budgeting, and political authorities. Relative to their own national budgets, the Partners were putting in phenomenal amounts of money. Notwithstanding the fact that the U.S. was putting in more money than they were, they still had to have adequate control over what was going on. A consensus management mechanism was adopted. But it provided an important safety valve that when consensus could not be reached, the U. S. would take the decision. I still believe that a major reason this approach worked is because the negotiations took such a long period of time – at the program level, we were working together long enough to realize that it would work!

The dynamics of a consensus mechanism in an operational environment is quite interesting. The folks at the working level really don’t want to be bucking their problems up and having higher levels making decisions for them. So the imperative of finding consensus is very, very strong at the working level. And, as the working level develops into a team, everyone starts looking at how is this thing going to work, rather than who is in control.

Cost sharing was a tough issue because it was wide open and no one had any experience. No one knew what the bottom line operating cost was going to turn out to be, so as the various Partners were signing on to carry X percent of the burden, no one knew what 100% of the burden was going to be. This was a difficult sell for us as well as all our partners.

Res Communis: What role, if any, did individual relationships play? Certainly there were times when negotiations seemed insurmountable and you spoke to “Mary” just as Peggy. What role did that play?

Finarelli: Obviously, these are trust relationships, so I cannot reveal who they are. I had them with all the Partners. Through them, I was able to figure out what were the real issues and what were the real limits (just as they were figuring out these things through their relationships with me). I really believe that effective negotiating can’t happen without these kinds of behind-the-scenes relationships.

Res Communis: Where did policy meet law? Please address the interface between policy and law in the IGA.

Finarelli: NASA has a variety of international agreement mechanisms and some of them are not intended to be formally governed by international law. At the time of the Space Station negotiations, agreements not intended to be covered by international law were written as letter agreements. An MOU was the mechanism used for large projects, intended to be covered by international law. These agreements were closely coordinated with State Department through the OMB Circular-175 process. Both NASA and State lawyers were involved in all the steps all the way. So policy and law were always there, and the issue of where policy met law came up frequently. I want to say this carefully. Everybody is interested in policy. However, when lawyers speak, people sometimes believe that everything that a lawyer says is law. Law trumps. But a lawyer making a policy statement is on equal ground with anyone making a policy statement. As you are developing your negotiating positions, differentiating between when your lawyer is speaking the law versus when that lawyer is taking a policy position is an extremely important thing to which the head of a delegation must be sensitive.

Res Communis: You have degrees in chemistry and have a policy career. Do you want to say how they related to each other?

Finarelli: My policy and international relations career has always focused on science and technology, including arms control issues as well as cooperation. Having the technical degrees enables me to see and understand the science and engineering of the projects on which I am working. I can’t drill down to the level that the scientists and engineers do, but I can grasp the important elements of what they are talking about and what they need in an agreement. A technical degree is also a “credential.” Scientists and engineers are rightly proud of their capabilities, which are quite different from the expertise of most policy people. So if you have a scientific or engineering background, it makes it a little easier for them to understand that you are on their team.

Res Communis: Switching to the current day, what would you say are some of the most important issues in space law and policy?

Finarelli: I think there are major, major problems. I thought export control was difficult in the 1980s. But it was, in retrospect, a kinder and gentler time. Now you’ve got the current International Traffic in Arms Regulations (ITAR) provisions covering the whole space area. This makes it so difficult for people to talk to one another, to exchange the information necessary to conduct an international project.

I have been involved in an ITAR study being done by the National Academy of Sciences’ Space Studies Board. International participants at the workshop offered their opinion that the ISS couldn’t be done today in the current environment. They predicted that space exploration isn’t going to be able to work as an international undertaking unless there is some relief. The culture has changed and everybody knows that working together makes even more sense now than it ever did because of limited national resources coupled with global interest and capabilities. But it has become harder and harder to do this. And this is not just a problem for space agency cooperation. When you talk to the commercial people and look at what has happened to the US satellite industry—it’s a disaster.

Nonetheless I am still so excited! Right now the European module Columbus is getting ready to launch to the ISS; the Canadian remote handling hardware has been operating for years; and the Japanese module is going to be launched early next year. Columbus is just one of the many things coming together after all these years. We all had idealism and optimism that it could work. Seeing it come together is phenomenal!

Res Communis: ISS critics say that the space station is not science; it’s a waste of money; took too long; is not really a success; and after all these years is still not completely assembled. What, if anything, would you say?

Finarelli: I would say, I don’t agree. Everybody who works in space has their own sense of what the priorities should be in space. People with astronomy careers think that expenditures on robotic science are the most important thing. People who have worked in Earth sciences think that research related to global climate change is the highest priority. There are still others who think that human space activities are extremely important. This is never going to be resolved because there is no absolute answer. I think that considering all of the nations that have participated in the ISS—Europe, Japan, Canada, Russia, and others—proves that we can all work together. This was an important statement to make back in the Cold War; it remains an important statement in the post Cold War era. The evolution of the Station to bring on the Russians was an extremely important accomplishment.

As for determining whether or not good science has been done on the Station, this does not happen over night. Scientists are collecting data; they and others not even involved in designing the initial experiments are analyzing data and will do so for years to come. Who knows what is going to come out of that? The fact that a Nobel Prize has not yet been won is not a criterion for judging whether or not good science has been done on the station. Nobels take time too.

Res Communis: We will conclude on that note unless there is anything you would like to add. It has been a pleasure, Peggy.

Finarelli: It has been a pleasure. Thank you.

INTERVIEW: Dr. Stephen E. Doyle

Stephen E. DoyleDr. Stephen E. Doyle, is a distinguished and long-time member of the community. Dr. Doyle has an undergraduate degree from the University of Massachusetts in literature with a minor in history (’60). His law degree is from Duke University (’63). He did two years of postgraduate study at McGill University. Dr. Doyle was a law clerk for two summers for the late Andrew G. Haley, author of one of the world’s seminal space law texts, Space Law and Government(Appleman, Century, Croft, 1963). He created the first draft of that book and credit was given to him in the author’s preface. Dr. Doyle says that one of the things he has loved about his career is that he has seen where tomorrow is going to be different than today. In all the jobs he has had, he has never had the routine experience of ”do tomorrow what you did yesterday.”

Interview with Dr. Stephen Doyle, November 6, 2007:

Res Communis: How did you get into space law?

Doyle: In 1962 I was a student at Duke University and employed part time at the World Peace Through Law Center, headed by Professor Arthur Larson. A visiting scholar came to the Center to do a study on the implications of space for national security and for global security interests. He was Robert D. Crane. He came from the Center of Strategic Studies at Georgetown University. He started telling me about the importance of getting bright young people committed to getting involved in space and space law development. He had worked with Andrew Haley as an associate in his law firm. He set up an interview for me and Haley hired me as a summer law clerk. That is how I got into space law.

Res Communis: What was it like working on Haley’s book Space Law and Government?First, please explain what Space Law and Government is and then tell us about working on it.

Doyle: Space Law and Governmentis a compilation of more than 200 articles and papers that Andrew Haley had written from 1956 to 1962. He wanted me to digest all those papers and put them into a single book format. We agreed early on a list of chapter titles and my job was to cut and paste all the work he had done; add supplemental information wherever it was needed to bring the material to currency; and, present him with a draft of a book called Space Law and Government. When I left he had a manuscript of 600 pages. He wrote an introductory chapter, a new chapter one that I had no hand in, and he wrote some concluding material for the final chapter. That is how Space Law and Government was written.

Res Communis: That brings us to the project you are working on with the NCRSASL. The Center has some of Haley’s original papers. Your expertise and first hand knowledge is invaluable in helping us put together an archive that will be available to researchers. You have characterized this archive as the work product of world’s first space law practitioner. Please tell us a little bit about what this archive contains and why it is important.[Editor’s note: a formal anouncement and description of the archive will be released shortly. Stay tuned.)

Doyle: The archive represents the institutional records of the law firm of Haley, Bader, and Potts in Washington, D.C. It had been in continuous operation since the 1930s. Haley retired from a wartime appointment as president of the Aerojet Corporation, and in 1946 returned to Washington to practice law. He brought back a strong interest in space. He also had an abiding interest in international cooperation. He felt that as astronautics developed, international cooperation would be extremely important. Therefore he became involved in international exchanges with foreign lawyers; getting to know people in other countries; and finding ways to talk with them about astronautics and where it was going. In 1950 the French convened the first of the International Astronautical Federation (IAF) astronautical congresses in Paris. The second was held in London in 1951. At that meeting Haley was invited to join the IAF organization team. Thereafter, he was active continually in the IAF. It eventually produced two suborganizations, the International Academy of Astronautics (the IAA) and the International Institute of Space Law (IISL).

The archive that the Center has includes many communications, planning documents, and proposals that were generated and exchanged during the 1950s regarding the development, expansion, growth, and definition of the IAF, its roles, and the formation of the IAA and the IISL. Haley was chair of an international committee in which he had the responsibility to associate the IAF with the United Nations. By 1957, he established a formal liaison so that the IAF was an associate member of UNESCO. The history of that whole development is in the archives that the Center now holds.

It also includes a lot of the exchanges that took place from 1958 to 1960 that has to do with organizing the lawyers of the world into an associate group that could regularly exchange opinions and write papers and hear from one another on the development of space law. Haley was absolutely convinced that there was a significant role in international cooperative activity for non-governmental structures that could feed into governmental structures, and that would ultimately result in formal treaties and international agreements. He thought the exchange of information and the exchange of opinions by individuals in their own capacity would greatly facilitate and accelerate the development of formal law. He was dedicated to providing mechanisms for exchanges of information but not necessarily to make decisions. Haley talked very often about trying to get some of the organizations funded to do research, but that was never one of his real goals. His real goal was getting people to talk to one another, to learn from one another, and to provide suggestions for ways of solving the problems of managing activity in outer space. If you look at the book Space Law and Government you will find it is very much oriented toward stimulating international cooperation; recognizing its value; and, encouraging it. On almost every page there is a reference to international cooperation. That was his goal. Build consensus; work together peacefully; bring benefits of the astronautic world to the people; good will and harmony; that was what he was all about.

Res Communis: You moved from the public sector to the private sector in the early 1980s. Can you tell us about that?

Doyle: My career started in Washington, D.C. with the Federal Communications Commission, then after two and half years there I was invited to join the State Department staff, which I did. I was then loaned to the White House for six months, then they decided they wanted me permanently, so I was transferred to the White House staff in the Office of Telecommunications Policy for four years. When I went into the White House it was the Nixon Administration. Shortly after I got there, Mr. Nixon had resigned and Gerald Ford took over and Mr. Ford was still president when I was invited to go to NASA and become the deputy director of International Affairs. It was in the period of 1970 to 1974 that I was in the White House. I went to NASA from ’74 to ’78 as the Deputy Directory of the Office of International Affairs. Then I moved to the Congress of the United States Office of Technology Assessment. I was there from ’78 to ’81.

In 1981, I was married with five children, and needed a better salary so I chose to leave government after fifteen years of service. I was invited to join the staff of the Aerojet Corporation in California. I was the director of strategic planning for about six years; and then got into contract management and land use issues with the local government involving the corporation’s rocket testing and other issues. I retired from Aerojet after fifteen years of service. I then became involved in starting another company in 1996, where I have been involved since 1996.

Overall, my career is in three chunks: my fifteen years with the Federal Government were very exciting growth years in the development of space law. I had a hand in writing the first regulations at the FCC for domestic satellite communications. In the State Department I worked on direct broadcast satellites and with the United Nations outer space committee for about a decade. At NASA, I continued this work because the State Department kept calling me back to serve on U.S. delegations. Even after I left the government in 1981, I served on US delegations to international meetings if the ITU and the United Nations until 1990. I had a good, long career in the government for almost twenty-five years of serving in international negotiations of treaties, agreements and the principles concerning activities in space, which followed the treaties.

Res Communis: In the early 1990s you worked with the Search for Extra Terrestrial Intelligence (SETI), correct?

Doyle: I was hired as a consultant by the SETI Institute in California. I worked with Drs. Jill Tarter and John Billingham. Basically, I talked with them about legal implications of a future contact and what would have to be done; what institutions would need to be involved; what kind of institutional preparation would need to be done to make an ultimate contact as smooth, and as undisturbing, as unpanic-inducing, as possible. Their concern was if contact was made, they needed to have the right institutions prepared to understand what the appropriate course of action would be. We spent a lot of time brainstorming how the UN Committee on the Peaceful Uses of Outer Space and the UN First Committee could be approached and to explain to the importance of keeping control on any contact so that the world at large would understand that it was a manageable event and not a catastrophe.

Res Communis: Tell us about the work you did for the United Nations Institute for Disarmament Research (UNIDIR).

I worked with Jayantha Dhanapala, The Director of UNIDIR, who was seeking a book concerning security implications of the civil uses of outer space. It would be written with assistance of an international advisory group. Fifteen disarmament experts from 12 nations participated. The title is, Civil Space Systems: Implications for International Security (Dartmouth, UK, 1994). It was published by UNIDIR as one of a series of studies about disarmament. It basically concluded that expanding civil uses of space are stabilizing rather than threatening international security.

Res Communis: You just finished a study titled, “The Impact of Spaceflight and Space Exploration on Laws and Governmental Structures of the United States”.

Doyle: I did. I submitted it on October 31, 2007 to Dr. Steven Dick, the NASA Chief Historian. NASA is assessing the impact of spaceflight on the United States; including things like the economy; industry; medicine; information technologies; education; and the laws and governmental structures of the country. NASA asked a number of different people, experts in their particular areas, to write on the impact of spaceflight on their areas. I was asked to address laws and government, as part of a broader study that will bring together assessments of impacts in a number of areas. There might be a conference on impacts of spaceflight on the nation, or there might be a book. I don’t think the decision has been made yet.

Res Communis: What do think are the most important space law issues today?

Doyle: The patentability and control of patents having to do with inventions made in outer space. The U.S. law gives a patent to the entity that first reduces an idea to practice and around 1990, the law in the United States was amended to include inventions made in outer space. The U.S. extended its jurisdiction to outer space and said any U.S. citizen or anyone working on a U.S. spacecraft that produces an invention in outer space may patent it in the law of the United States. It is a unique law that has not been given a whole lot of attention. I think ultimately it will become an area where many foreign countries will also want to devote more attention.

Res Communis: We, Res Communis, have an entry on a bill pending in Congress right now, which, if passed, will change the U.S. from a “first to invent” rule to a “first to file rule” nation. If passed, it would be a fundamental change.

It would put the United States in step with Europe and most of the major developed countries of the world. We have historically had “first to invent,” that is, the first one to reduce an idea to a practice, record it, and produce evidence of the recordation gets the patent. The rest of the world pretty much says it’s the first one that submits the application to the patent office who gets the patent. That’s the “first to file.” The difference is, we will no longer ask “When did you invent this?” in order to determine the precedence of an invention, but “When did you first file it with the patent office?” That is when the date of primacy is going to be determined and that can make a big difference.

Res Communis: Is there anything that we may not have asked?

Doyle: In my opinion, there isn’t much in space law that you don’t have your thumb on and are aware of. I think there are still some questions that are going to continue to cause some aggravation having to do with the use of nuclear power sources in space; although I think we have quite conclusively demonstrated we can safely use nuclear power in space, particularly for space systems that are at substantial distances from the sun. There are those who in the environmental community who want to exclude the use of nuclear power sources off the Earth. It doesn’t make an awful lot of sense, but I think we are going to continue to have controversy. Every time there is talk about putting a radioactive power generation system on board a satellite system, it is going to raise complications and problems.

The other thing of which I am particularly aware is that there is an enormous competition occurring in the launch vehicles services and other space technology areas, with the addition of launches by Western Europe, Russia, Japan, India, and China. The United States has a body of law that emerged in the 1950s that says that the U.S. has to restrict the export of advanced technologies to keep other nations dependent on U.S. technology. It is called the International Traffic a in Arms Regulations (ITAR). The law keeps U.S. industry from exporting advanced technology. The assumption is, the U.S. is the only nation with smart people in the world; the only ones that can figure out how to do things; and in order to get advanced technology other nations are going to come to us to do it. I think it is a futile exercise, I think it is a dumb idea. I realize there may be some short term values and benefits from denying hostile foreign nations access to our technology, but in the long run you are giving people reason to develop the technology themselves, which they are entirely capable of doing; and, at that point they have nothing but a remaining bad taste in their mouths from how the U.S. refused to help them when it could have.

Res Communis: Well, I that brings us to the end. Stephen, this has been very enjoyable, we learned even more, and really appreciate your giving us the time to do this.