An Indian Perspective on Space Law

About the author: Shakshi Agarwal, a B.COM LLB third-year student from Banasthali Vidyapith is an enthusiast of criminal, cyber, space, constitution, and environmental law.

INTRODUCTION

At the end of November, India’s Space Research Organization (the ISRO launched a primary observation satellite and deployed another 30 international co-passengers, and commercial satellites belonging to 8 different countries. Clearly, the sky is no longer the limit and the venture into space for technological and economic development, is perhaps the cutting-edge question in science at the moment, spawning a number of new industries in the coming decades.

While traditionally, space has always been the exclusive domain of the public sector, the final frontier is gradually opening up to the private sector as technology increasingly enables and empowers private companies with the ability to put things into orbit (and perhaps beyond) for the purpose of providing services on a commercial basis. While it is telecommunications and geo-mapping services today, tomorrow, it could be mining or even far more exotic activities, that were once the exclusive realm of science fiction.

In fact, the private sector race into space has long been on, with Elon Musk’s Space X pioneering reusable launch technology, Richard Branson's vision of putting tourists into space, and even Bangalore based Team Indus recently taking up the Google challenge of putting a space rover on the moon. It is in this broader context that India’s Department of Space published a draft bill, the Space Activities 2017 Bill for stakeholder comment just over a year ago.1

With all these developments, questions about how access to space will be regulated and will it be done in a manner that facilitates private sector investment are absolutely critical. While the government has a legitimate concern in regulating what goes into space, it is equally important that the industry is not overly regulated, which could potentially deter investment, or otherwise, drive investment into other jurisdictions having a more flexible regulatory landscape.

Does the Bill serve to provide a robust framework for the future, meeting these objectives?

This article will highlight briefly recent developments in India’s space program, summarize the international legal framework governing space before exploring the contents of the Bill, and consider to what extent it is likely to encourage investment into this sector on the one hand; while recognizing the legitimate public interest concerns of the state, on the other.

INDIA’s SPACE PROGRAM

One of India’s great success stories is perhaps its ability to develop its own satellites, launching systems, and ground control technology to put not just Indian satellites into space, but so too, other satellites on a commercial basis. In February 2017, the ISRO reached a record milestone, launching 104 satellites from a single payload. To add to the vision, earlier this year, Indian Prime Minister Narendra Modi announced India’s intention to put a man on the moon by 2022.

The ISRO has been at the forefront of driving this industry, enabling a number of services encompassing navigation and communications to imagery, facilitating a number of social and economic programs over the last 50 years.

It successfully launched a lunar orbiter in 2008 and plans to launch a further unmanned mission to the moon in the first quarter of 2019. But perhaps the apex of ISRO’s achievement to date, however, is putting an orbiter around Mars on its very first attempt, back in September 2014, a mission that still continues today, more than four years later. The cost? Just USD 74 million, a fraction of the cost of its foreign competitors.

INTERNATIONAL LAW

The international system already has quite a lot of space laws governing what it can be used for and what happens if things go wrong. The principle of using space in good faith for peaceful purposes forms the bedrock of the existing international legal regime.

Following the launch of the first satellite, Sputnik, into orbit in 1957, the United Nations established its Committee on the Peaceful Uses of Outer Space and COPUOS created two different sub-committees: a scientific and technical sub-committee; and a legal sub-committee.

COPUOUS has been instrumental in negotiating five international treaties covering space, namely: the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1972.

Convention on International Liability for Damage Caused by Space Objects the 1975 Convention on Registration of Objects Launched into Outer Space and the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.

The Outer Space Treaty broadly, forms the basis of international space law, with 107 ratifications and 23 other signatories as of October 2018. It basically prevents states from putting weapons of mass destruction into space or installing them on the moon or any other celestial body. It exclusively limits the use of the moon for peaceful purposes. Interestingly, it does not prevent the putting of conventional weapons into space.

The Outer Space Treaty also prevents states from making territorial claims to the moon or other celestial bodies and maintains that space shall be free and for the use and exploration by all states. Interestingly, the question of who owns resources that may one day be mined from the moon (or other celestial bodies) is a separate one.

The Rescue Convention basically requires signatory states to provide all possible assistance to recover space objects and astronauts that may come down within its territory, at the cost of the state that launched it. Some commentators suggest that it needs to be amended when commercial operations putting humans into space commence, extending the definition of the astronaut to include passengers.

The Liability Convention sets out the principle that states bear responsibility for space objects launched from their territory. Regardless of who launches the space object, the state from which it was launched is liable for damage caused by it, though there are exceptions to this principle, where two or more states work together. In such circumstances, they are jointly and severally liable. Note further that claims under the Liability Convention are inter-state (and individuals have no separate legal standing). To date, there has been just one claim under the Liability Convention, in relation to the 1978 crash of the Russian satellite, Kosmos 954 in Canadian territory.

The Registration Convention requires states to provide information about the orbit of each object put into space, in addition to the general function of the space object. Interestingly, the Moon Treaty, which attempted to establish a global commons regime (similar to the UN Convention on the Law of the Sea), has just 18 signatories, and no country that potentially has the capability to undertake activities on the moon or other celestial bodies is a signatory.

The UN Office of Outer Space Affairs is the body responsible for promoting international cooperation for the peaceful use of space. UNOOSA essentially serves as a secretariat for the COPUOS and maintains the register of objects launched into space, amongst other things.

Generally, it’s probably fair to say that the existing international legal framework is a broad-brushed statement of principle and it does not really address particular nuanced legal questions related to particular activities. When the mining of celestial bodies becomes practical, we are likely to see a top-down international convention with a regime not too dissimilar to the UN Convention on the Law of the Sea. Otherwise, we could see a bottom-up approach, between private and public sector actors, mapping out a regime of rights and responsibilities and revenue sharing.

THE BILL- 'Space Activities bill,2017'

Union finance minister Nirmala Sitharaman’s announcement for the drafting of the bill by the department of space in 2017. There is a need for national space legislation for supporting the overall growth of space activities in India. This would encourage enhanced participation of non-governmental/ private sector agencies in space activities in India in compliance with international treaty obligations which is becoming very relevant today, says the draft “Space activities bill,2017”. The thrust of the bill was to evolve a mechanism by which companies or individuals who wanted to be involved in a wide range of space development activities –satellite development, GIS, telemetry- could approach the government for a license. Critics of the bill have pointed out that it doesn’t have provisions for the creation of an independent space regulatory and doesn’t differentiate between various kinds of space activities. For instance, different kinds of commercial space activity- whether remote sensing or deep space exploration- need specific regulatory clarity. The bill also posits ISRO as the key licensing authority when it itself has monopoly power over space technology and development.

WHAT IS THE SPACE ACTIVITIES BILL, 2017?

It is a proposed bill to promote and regulate the space activities of India. The new bill encourages the participation of non-governmental/ private sector agencies in space activities in India under the guidance and authorization of the government through the department of space.

According to the draft, a few start-up companies in India have shown interest in the space system activities and as space activities need participation from private-sector agencies, “there is an urgent need for a legal environment for orderly performance and growth of space sector.”

WHAT DOES THE BILL PROPOSE?

1. The provisions of this act apply to every citizen of India and to all sectors engaged in any space activity in India or outside India.
2. A non-transferable license shall be provided by the central government to any person carrying out commercial space activity.
3. The central government will formulate the appropriate mechanism for licensing, eligibility criteria, and fees for the license.
4. The government will maintain a register of all space objects (any object launched or intended to be launched around the earth) and develop more space activity plans for the country.
5. It will provide the financial and technical support for commercial space activity and regulate the procedure for conduct and operation of space activity.
6. It will ensure safety requirements and supervise the conduct of every space activity in India and investigate any incident or accident in connection with the operation of space activity.
7. It will share the details about the pricing of products created by space activity and technology with any person or any agency in a prescribed manner.
8. If any person takes any commercial space activity without authorization they shall be punished with imprisonment up to 3 years or fined more than rupees one crore or both.

CONCLUSIONS

The draft Bill is a welcome starting point in the context of building a regulatory framework for a future industry that is yet to reach critical mass. Many of the provisions are perhaps analogous to embryonic regimes governing the introduction of new technology of the time (think the car, the plane, and more recently, the drone) and it’s inevitable that such regimes will generally set out a requirement to license entities to undertake certain activities, with corresponding obligations to be observed so as to not endanger the public at large.

Parallel domestic legislation in other major economies generally contains provisions that give the state the discretion to refuse a license for space activities if it would violate international law, the health and safety of persons within the state concerned, or otherwise, is a threat to national security.9 In this context, many of the analogous provisions in the draft Bill are perhaps no worse than the general industry standards.

However, it’s quite important that the government doesn’t overly regulate the sector to the extent that it will potentially discourage the private sector from participating, or otherwise, prejudice foreign participation (whether it be public or private) in future space endeavors.

Care, therefore, needs to be taken in getting the balance right, in particular in relation to intellectual property rights for new products or services developed in space, or otherwise, the rights to minerals or other substances mined from celestial bodies.

Put otherwise, if the private sector isn’t equitably rewarded for its innovation, the sector is unlikely to attract the investment that is so critically needed.

A final point for reflection: following the coming into force of any space law, the government will need to consider its stance on foreign direct investment in related technologies, whether it be launch technology, satellites, or other vehicles that could potentially be launched into space.

The more permissive this regime is, the more likely India will be able to attract capital and investment into this sector to develop not just its own space program, but essentially make India a hub for the international space industry in general, developing launch and space vehicles and their components in a potentially more cost-effective manner.

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