

A secure spacefaring nation, an emerging “key player” in Avant-garde space research & technology, but an absent domestic space law

ISRO’s Meteoric Rise

From the launch of small sounding (research) rockets in 1963 by the Indian National Committee for Space Research (INCOSPAR) with the support of United Nations till today, India’s tryst with space research has materialized into many successful missions in wide-ranging areas including communication, broadcasting, meteorology, oceanography, surveying natural resources, and monitoring the environment. The Indian Space Research Organization (ISRO), the space exploration agency of the Government of India, was formed in 1969. The first Indian satellite, Aryabhata, was built by the ISRO and launched with the assistance of the Soviet Union in 1975. It was in 1980 that the first satellite (Rohini) was successfully placed in the orbit by SLV-3, an Indian made launch vehicle.

In a bid to reducing country’s dependence on other nations, the Polar Satellite Launch Vehicle (PSLV) and the Geosynchronous Satellite Launch Vehicle (GSLV) were designed and developed in early 1990s. While PSLV was developed to enable India to launch its remote sensing (earth-observation) satellites into sun-synchronous orbit (a service that was earlier commercially available only from Russia); GSLV project was initiated with the aim of acquiring an Indian launch capability for geo-stationary satellites. Both the developments catapulted India into top-ten global ranking of countries with indigenous satellite launch capabilities. The subsequent launches of Chandrayaan I and II (the two Moon Missions involving orbiting spacecraft around the Moon using an Indian-made launch-vehicle) and Mangalyaan (Mars Obiter Mission- country’s first interplanetary mission) in the last decade helped in cementing India’s capability in space technology. In 2014, ISRO used an indigenously built cryogenic engine for launch of the GSAT-14 satellite making it one of the only six countries in the world to develop a cryogenic technology.

The year so far has turned out to be significant given the new frontiers being crossed in space technology. On 15th February, ISRO created history by successfully launching 104 satellites with earth-imaging capability on a single mission, overtaking the previous record of 37 satellites launched by Russia in 2014. In April, the Organisation reached a new milestone when for the first time it engaged a private sector industry to build two multi-crore, heavy duty, full navigation satellites. Realizing the shortness in its pace for satellite fabrication, ISRO decided to bridge the gap by bringing on board private industry. In an unparalleled move in the history of Indian “space diplomacy”, on 5th May, South Asia Satellite (also known as GSAT-9), a communications and meteorology satellite operated by ISRO, was “gifted” to South-Asian region. The 2,230-kg communication satellite has been built in three years at a cost of ₹235 crore. In the same month, USA’s National Aeronautics and Space Administration (NASA) and ISRO agreed to collaborate on building the world’s most expensive Earth-imaging satellite till date that will cost the two countries over USD 1.5 Billion. The work has begun in all earnestness to build the NASA-ISRO Synthetic Aperture Radar Satellite called NISAR. More recently, on 5th June, ISRO launched its most powerful and heaviest indigenous rocket yet, the GSLV-Mark III, which put the communication satellite GSAT-19 into orbit in a successful debut flight. The launch marked India's entry into the “heavy-lift rocket club” -that can put four-tonne satellites into space- occupied by USA, Russia, Europe, China and Japan.

With these recent strides India has strengthened its strategic and geo-political interests and is now giving serious competition to the global space technology giants, including USA and Russia.

Significance of Space Law

Being active in the space arena brings into focus the need for enactment of law(s) to govern the field in conformity with the developments taking place globally. There are five international treaties which have been negotiated and drafted by the United Nations Committee on the Peaceful Use of Outer Space (UNCOPUOS) – a committee created by the United Nations in 1959. These are the Outer Space Treaty of 1967; the Rescue Agreement of 1968; the Liability Convention of 1972; the Registration Convention of 1975; the Moon Agreements of 1979. UNCOPUOS oversees all these treaties and other questions of space jurisdiction. The UN Outer Space Treaty of 1967, the first ever comprehensive legal mechanism aimed at regulating global space activities, forms the basis of International Space Law. As of May 2017, 106 countries are parties to the said treaty, while another 24 have signed the treaty but have not ratified it. Although legally binding international treaties are essential to regulate growth of activities in the space in a healthy and meaningful manner, individual nations also need to put in place their respective domestic space laws to regulate their space activities in conformity with the international treaties. Harmonizing treaty obligations with domestic law is critical to the commitment of nations to support the collective measures to deal with issues arising in outer space. (See Need of Space Law in India, 2011, Columbia Journal, available at here)

Several nations have enacted national space legislations and established governmental space regulatory institutions not only to fulfil their international obligations, but also to protect their citizens from harm, address liability issues, encourage/foster development of commercial space activities, and to ensure compliance of regulatory requirements by private players. “Legislation and regulation is an important means of providing certainty, stability, and predictability in the legal regime essential for commercial investment.” (For further reading, National Laws Governing Commercial Space Activities: Legislation, Regulation, & Enforcement, Paul Stephen Dempsey 36 Nw.J. Int'lL. & Bus.1 (2016), available here).

Leading space powers like the USA, Russia and Japan have domestic space laws broadly based on the Outer Space Treaty of 1967. While China has announced that its Space Policy will be soon unveiled, Australia and South Korea have long implemented international treaties through enactment of national laws. Many countries like Canada, Germany, the Netherlands, South Africa and Ukraine have a legal framework in place despite not being well- established in space technology. India is perhaps the only country which has achieved indigenous launch capability and is a party to all the above significant space treaties, but has not yet put in place a national Space Law. Currently, India’s space endeavours are guided by the provisions of Constitution of India as enshrined in Article 51 which fosters respect for International Law by imposing an obligation on the State to strive for the promotion of international peace and security, including respect for international law and treaty obligation. The regulatory framework for space activities is defined by a gamut of policies, procedures and guidelines of the Government of India, including: Satellite Communications Policy of 2000; Revised Remote Sensing Data Policy of 2011; and Technology Transfer Policy of ISRO. It is well-known that a legislation -a law enacted by the Parliament- ensures the kind of certainty and clarity that a Policy or Guideline cannot achieve.

Between the three key players- ISRO, Department of Space (DoS), and Antrix Corporation Limited (ISRO’s commercial arm), India’s space activities are operated and regulated by the Government, which is responsible for all space-related programmes. Even in the space-enabled service sector, it is the Government which is both the operator and the regulator, for instance, in the field of remote- sensing data. This obvious conflict of interest was initially disregarded since space was not an area of interest for the private sector. But the scenario is now changing with the emergence of private participants and hence there is an obvious concern. The current satellite communication norms neither prescribe a time-frame for authorising the launch of satellite systems, nor provide a clear framework for the exercise of discretion by the government bodies. This may lead to poor investor confidence which does not augur well for the space start-ups in the country. There are also valuable lessons to be learnt from the experience(s) of NASA of USA and the European Space Agency- that cutting-edge innovation is achievable only through a dynamic engagement with the private sector. (Refer Before ISRO can go Onward and Upward, India needs a good Space Law, by Ashok GV, available here) As and when the space sector is opened to “active” private participation. the proposed law will also need to address a range of emerging commercial space businesses- be it space tourism or harvesting resources or even asteroids- all of which will give rise to myriad legal issues in the future. (See Why India needs a Robust Space Law, by Prakash Chandra (Senior Science Writer), here).

ISRO’s self-sufficiency in launching capability of satellites and cost-effective space programmes is undoubtedly attracting other nations to enter into formal arrangements with it for support and collaboration. Increase in these commercial activities also calls for strong domestic law on space as well as related areas. The laws of Contract, Transfer of Property, Stamp Duty, Registration, Intellectual Property Rights (IPR) are some of the key statutes which need to be revised for bringing space- related issues within their ambit. Recently, ISRO outsourced manufacturing of two multi-crore full navigation satellites to a private sector enterprise for the very first time. A high-tech defence equipment supplier from Bangalore has been chosen as the first private sector industry tasked with making two satellites. By supporting the private industry to fabricate satellites, the aim is to create a robust space industry with the private sector participation in the long run (See ISRO embraces private sector to outsource Satellite Manufacture, reported here). Yet as of now, there is no comprehensive licensing protocol in place for adherence by private participants. While participation of private satellite systems is permitted, there is no legal regime to fix liability in the case of damage.

Interestingly, in December last year ISRO signed a commercial launch contract with a Bangalore based areo-space start-up to launch a spacecraft which will attempt to land on the surface of the Moon, “travel 500 metres and broadcast high- definition videos, images and data back to the earth” as part of the start-up’s bid to win the Google Lunar XPRIZE of USD 30 Million.

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In a sign of times to come, ISRO is taking the first steps towards seeding an ecosystem in which “private space industry” can eventually play a key role in reducing the time spent by ISRO on satellite and launch vehicle building, allowing it to focus on ground-breaking space research and deep space probes. In USA, the Commercial Space Launch Act of 1984 achieved that early on by enabling the private sector to assume operations in space leaving NASA free to focus on research and development. Elon Musk’s SpaceX- an American aerospace manufacturer and space transport services company founded in 2002 by entrepreneur Elon Musk with the goal of reducing space transportation costs- is a shining example of a “robust relationship” built by NASA with the private sector in order to leverage opportunities in space. SpaceX has since then developed the Falcon launch vehicle family (multi-use rocket launch vehicles) and the Dragon spacecraft family (re-useable spacecraft), both of which currently deliver payloads into Earth orbit. In Japan and Europe too private consortiums build, launch and operate satellites for a variety of end-uses. To cite an example, the success of Arianespace- European space transportation company- which accounts for nearly 60% of the global market for launching satellites on commercial terms, is credited to the active participation of the European Space Agency, the member states, and the entire European launch industry. A stark contrast to the current state of engagement of private sector in the Indian space industry.

A well-defined law which allows for smooth functioning and interface between ISRO and the emerging private players in the space sector, and also avoids/minimizes conflict amongst them and addresses liability issues in case of damage, is now urgently needed. A national space law will act as a catalyst for growth in the space sector and delaying it any further will only hamper future endeavours of ISRO.

Space Debris and Collisions: Legal and Ecological Risks

While the Geostationary orbit is getting crowded with communication and weather satellites, earth’s lower orbit is experiencing high frequency of spaceflights and space debris due to frequent object launches. An estimated 30,000 man-made objects are currently orbiting Earth. These range from tiny pieces of rockets and satellites to completely defunct satellites. Since all these objects pose risks to other spacecrafts and satellites, the risk of a chain reaction of satellites crashing into one another is continuing to rise. (Refer here)

The growing global concern over space debris and their unintended legal and ecological consequences hit the home turf recently when India found itself at the center of an international dispute involving debris from an Indian satellite, which was retracing back to Earth, falling from the orbit on a Japanese village. In such cases, India’s liability for damages would be determined by the 1972 Convention on International Liability for Damage Caused by Space Objects, to which India is a signatory. All the signatory nations of the Convention are “absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.” However, in the absence of a domestic space law, it becomes difficult to assess the quantum of damages payable by India. With access to space becoming affordable, space debris are adding to the ‘space junk’. The question whether the polluting nations will pay for this junk is not clear. Domestic laws can address the whole gamut of legal issues arising from the ‘objects put up in space’ as also the ‘space junk’, including assessment and fixing responsibility in case of collusion between space debris with objects put up in outer space. In the words of ISRO Chairman, Kiran Kumar “Space Act would help the government deal with legal issues arising from objects put up in space and for what happens to them in orbit, or because of them.” Not surprisingly, international regulatory bodies like UNCOPUOS are calling upon member states to adopt robust national space legislations. It is time India also rose to the occasion.

Indian Space Law: In the Offing?

Experts on Space Law are of the view that a legislation on space will need to offer some serious radical changes (Refer Before ISRO can go Onward and Upward, India needs a good Space Law, by Ashok G.V, Partner, TMT Law Practice). To begin with, the proposed law should vest the regulatory functions being performed by ISRO (and Department of Space) in an independent regulatory body. Further, if ISRO has to focus exclusively on research and innovation, then the burden of day-to-day operations will have to be shifted to the private sector. The proposed space law should also be able to effectively oversee satellite -building activities and launch services in India, ensuring that the country has the requisite competence to discharge liability as a “launching state”. There are some related issues as well which the law will need to adequately address, viz. liability for space debris, responsibility for monitoring space activities arising out of India’s territory or mandate, liability owing to failures during launch of payloads into space, management of the assets of the space programmes, to name a few.

As of now the only visible step in the space arena is the Draft Geospatial Information Regulation Bill, 2016, which was released by the Ministry of Home Affairs on May 4, 2016. As per the draft Bill, it will be mandatory to take permission from a government authority before acquiring, disseminating, publishing or distributing any “geospatial information of India”. Clearly the Draft Bill is nowhere near a full-fledged domestic space law that can govern and protect the country’s sovereign and commercial interests as a space-faring nation.

Enactment of an overarching national law on space will send the right message to the international space community that the country has the necessary vision to back up its technological capability. It will also answer the question if we are indeed serious about giving opportunities to entrepreneurs and start-ups who inspired by ISRO’s many achievements are looking to explore the tremendous opportunities which the realm of space offers. A dynamic space law has now become imperative irrespective of whether we choose to allow private industry to emerge in the country’s space domain and enhance ISRO’s many achievements; or promote Antrix Corporation —ISRO’s commercial arm—as the country’s leading launch services provider.

Richa has over 10 years of experience in legal writing and editing. She completed her Masters (LL M) in Commercial Laws from the London School of Economics and Political Science and is a qualified Solicitor in England and Wales. Richa started her career with SNG & Partners, an established pan India banking law firm. She went on to pursue her keen interest in legal research and writing as the Senior Legal Editor with LexisNexis India Her subsequent stint as the Consulting Editor of Lex Witness, India’s first Magazine on Legal and Corporate Affairs, honed her analytical understanding of legal subjects. She was also involved with setting up of Live Law. A mother of two young children, Richa is currently based with her family in Singapore.