National Space Legislation for India: Proposal for a Draft Framework 9811526745, 9789811526749

Citation preview

Kumar Abhijeet

National Space Legislation for India Proposal for a Draft Framework

National Space Legislation for India

Kumar Abhijeet

National Space Legislation for India Proposal for a Draft Framework

123

Kumar Abhijeet New Delhi, India

ISBN 978-981-15-2674-9 ISBN 978-981-15-2675-6 https://doi.org/10.1007/978-981-15-2675-6

(eBook)

© Springer Nature Singapore Pte Ltd. 2020, corrected publication 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Disclaimer: The views expressed in this book are the individual views of the author only. In no way it must be considered to be the views of the Government of India or of the institution(s)/employer(s) with which the author is/was associated. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Preface

Indian space programme has been advancing dynamically since its inception on sheer governmental support. To further enhance space capability, India is positively looking forward for active participation of private entities. The absence of law has been a major hurdle for private sector participation. The study was undertaken with the objective to propose draft framework space legislation for India. In the first step, international space treaties have been studied to find out whether there is any necessity for states to enact national space legislation. In the second step, a comparative study of space legislations of selected spacefaring countries has been done. The underlying hypothesis was that since states have enacted national space legislation largely in response to international space treaties, there exists a certain common denominator that any space legislation must address. In the third step, a case study from India is made to know the technological developments and current legal regime for space activities in India. In the absence of a specific law in India, there might be situations where the Government may be incapacitated to discharge its international obligation/s. Accordingly, a draft national space legislation has been proposed for India, which can serve as a ready reckoner. This book has been published towards the formal requirement of my doctoral dissertation successfully submitted to the University of Cologne, Germany, under the supervision of Prof. (Dr.) Stephan Hobe, Director, Institute of Air, Space and Cyber Law, University of Cologne, Germany. It is imperative and matter of immense pleasure to formally acknowledge all those who have contributed in any way to complete this work. My first interaction with Prof. Hobe was as a student at the National School of India University, Bangalore, wherein he was offering a course on space law. His intellectually stimulating lectures motivated me so much that I made my decision to do my doctoral work in space law. This work is a manifestation of fruitful discussions and deliberations with my “doctoral father”—Prof. Hobe. No words would be sufficient to thank him, and I express my deepest gratitude to him for sparing his precious time, igniting my mind and showing me the light. I am thankful to him for meticulously reading and editing the manuscript.

v

vi

Preface

I also extend my heartfelt thanks to Prof. Bernhard Kempen who agreed to be the second examiner both for my written doctoral dissertation and for the oral examination. I must also express my deep sense of gratitude to Dr. Jan Kruse in particular and the International Office of the University of Cologne in general for arranging the much needed financial grants for me through the German Academic Exchange Service (DAAD), without which it would not have been possible for me to take up my research studies in Germany. I feel privileged to have been admitted as a doctoral candidate at the Faculty of Law (Institute of Air and Space Law), University of Cologne. My utmost regards to my alma mater for giving me the opportunity to enrich my learning at this prestigious institution. I am also indebted to the Institute of Air and Space Law and the people working here for their ever-helpful nature. I am grateful to my parents, sisters and brother-in-law including other family members and my friends who are an integral part of my life and have continuously given me all possible support and encouragement. Lastly, I offer my sincere thanks to all those who have supported me in any respect towards the completion of this work. However for any shortcomings in this publication, I solely must be held responsible. The views expressed in this book are the individual views of mine. In no way, it must be considered to be the views of the Government of India or of the institution (s)/employer(s) with which the author is/was associated. New Delhi, India

Kumar Abhijeet

Contents

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

1 2 2 7 8 13 14 15

2 Rationale for National Space Legislation . . . . . . . . . . . . . . . . . 2.1 Implementation of International Obligations . . . . . . . . . . . . . 2.1.1 International Responsibility for National Activity . . . . 2.1.2 “Authorization and Continuing Supervision” . . . . . . . 2.1.3 Registration of the Space Object . . . . . . . . . . . . . . . . 2.2 Protection of Financial Interests of the State . . . . . . . . . . . . . 2.2.1 The Concept of “Launching State” . . . . . . . . . . . . . . 2.2.2 Imputation of Liability upon the Launching State . . . 2.2.3 Liability of Private Actors . . . . . . . . . . . . . . . . . . . . 2.2.4 Transfer of the Ownership and Control of Space Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Auxiliary Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Environmental Aspects . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Protection and Preservation of Space Assets . . . . . . . 2.3.3 Return of Space Objects and Rescue of Astronauts . . 2.3.4 Space Applications (Telecommunication, Remote Sensing, Navigation, Mining, Etc.) and IP Rights . . . 2.4 Creation of a Viable Ecosystem for Private Space Activities . 2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . .

. . . . . . . . .

. . . . . . . . .

. . . . . . . . .

17 18 18 20 21 26 26 27 30

. . . . .

. . . . .

. . . . .

. . . . .

33 34 34 36 38

.... .... ....

38 40 40

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Understanding National Space Legislation . . . . . . 1.1.1 March of International Space Law . . . . . . 1.1.2 Necessity for National Space Legislation . . 1.1.3 Contents of National Space Legislation . . . 1.1.4 Advantages of National Space Legislation . 1.2 Scope of the Research . . . . . . . . . . . . . . . . . . . . 1.3 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

vii

viii

3 State Practices Towards National Space Legislation . . . . 3.1 Scope and Application of the Legislation . . . . . . . . . . 3.2 Implementation of the Authorization and Supervision Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Authorization Methods . . . . . . . . . . . . . . . . . . 3.2.2 Authorization Factors . . . . . . . . . . . . . . . . . . . 3.2.3 Authorization Body and Procedure . . . . . . . . . 3.2.4 Continuing Supervision . . . . . . . . . . . . . . . . . 3.3 Financial Responsibility . . . . . . . . . . . . . . . . . . . . . . 3.4 Transfer of the Space Object/Licence . . . . . . . . . . . . . 3.5 Implementation of the Registration Principle . . . . . . . 3.6 Protection of the Environment . . . . . . . . . . . . . . . . . . 3.7 Other Aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contents

......... .........

43 44

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

53 53 55 58 58 62 67 70 74 79 82

4 Legal Regime for Space Activities in India . . . . . . . . . . . . . . . . . . 4.1 Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Lift-off of the Indian Space Programme . . . . . . . . . . . . 4.1.2 Ascent of the Indian Space Programme . . . . . . . . . . . . . 4.1.3 Facets of the Indian Space Programme . . . . . . . . . . . . . 4.2 Space Governance in India . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Space Law in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 The Constitution of India: Implementation of International Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Allocation of Business Rules . . . . . . . . . . . . . . . . . . . . 4.3.3 The SatCom Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 Remote Sensing Data Policy . . . . . . . . . . . . . . . . . . . . 4.3.5 The Right to Information Act . . . . . . . . . . . . . . . . . . . . 4.4 Need for National Space Legislation . . . . . . . . . . . . . . . . . . . . 4.4.1 Enable Discharge of Liability for Paying Compensation for Damage Caused by Space Objects . . . . . . . . . . . . . . 4.4.2 Enable Rescue and Return of Astronauts and/or Space Objects . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.3 Enable the Active Space Industry Involvement at Turnkey Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.4 The Draft Space Activities Bill 2017 . . . . . . . . . . . . . . 4.4.5 Suggestions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . .

. . . . . . .

87 89 89 90 91 94 95

. . . . . .

. 95 . 96 . 97 . 101 . 101 . 102

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . . . . . . . . . .

. . 103 . . 104 . . . .

. . . .

104 106 110 111

5 Final Conclusion and Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 5.1 Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 5.2 Draft National Space Legislation 202_ . . . . . . . . . . . . . . . . . . . . . 118 Correction to: Final Conclusion and Proposal . . . . . . . . . . . . . . . . . . . .

C1

Appendix: Future Scope of the Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

About the Author

Kumar Abhijeet completed his doctoral studies at the Institute of Air and Space Law, University of Cologne, Germany; holds a Master of Laws degree from the National Law School of India University (NLSIU) Bangalore; Bachelor of Science & Bachelor of Laws degrees, both from the University of Delhi. He has more than eight years of teaching experience at the NLSIU, Bangalore. He has been a Linnaeus-Palme fellow at the Royal Institute of Technology, Stockholm (Sweden) and Erasmus Mundus fellow at the Department of Public International Law, Ghent University, Belgium. On the occasion of fifty years of the Outer Space Treaty he was part of the 21-day workshop on space law conducted by the Centre for Studies and Research of The Hague Academy of International Law, The Netherlands. He is also an alumnus of the International Visitors Leadership Program (IVLP) – a U.S. Government premier professional exchange program for emerging international opinion leaders. Under the auspices of IVLP he was invited to visit NASA. He has quite a few distinguished publications to his credit and has been an invited speaker in a number of prestigious conferences including the first United Nations conference on space law held in Moscow, Russia. He is also a member of the International Institute of Space law and the International Law Association (India Branch). Currently, Dr. Abhijeet is working with the Ministry of External Affairs, Government of India.

ix

Abbreviations

AAI AEB AOB ASLV BEIS CAG CAISS CAR CLA CLSO CNES CRSSS CSA CSL DAE DIISR DLR DOS DOT EIA ESA FAA FDI FSOA GAGAN GPS GSLV GTO IASL

Airport Authority of India Brazilian Space Agency Allocation of Business Rules Augmented Satellite Launch Vehicle Business, Energy and Industrial Strategy Comptroller and Auditor General Committee for Authorizing the Establishment and Operation of Indian Satellite Systems Canadian Aviation Rules Alcantara Launch Centre Canadian Launch Safety Office Centre National d’Etudes Spatiales Canadian Remote Sensing Space Systems Canadian Space Agency Commercial Space Launch Department of Atomic Energy Department of Innovation, Industry, Science and Research German Aerospace Centre Department of Space Department of Transportation Environmental impact assessment European Space Agency Federal Aviation Administrator Foreign direct investment French Space Operations Act GPS-aided GEO augmented navigation Global Positioning System Geosynchronous Satellite Launch Vehicle Geosynchronous Transfer Orbit Institute of Air and Space Law

xi

xii

ICAO IGA ILA INCOSPAR INSAT IPR IRNSS IRSS ISRO ISS ITU JAXA KARI LEO LSO MEXT MPHPT NAS NASA NASRDA NAVIC NBSA NEPA NPS NRSC OSA OST PMO PNT PSLV ROSCOSMOS RR RSDP RSO RTI SA SANSA SARP SatCom SBAS SCC SDP SDSC SHAR

Abbreviations

International Civil Aviation Organization Intergovernmental Agreement International Law Association Indian National Committee for Space Research Indian National Satellite System Intellectual property rights Indian Regional Navigation Sensing Satellite Indian Remote Sensing Satellite Indian Space Research Organization International Space Station International Telecommunication Union Japanese Aerospace Exploration Agency Korea Aerospace Research Institute Low Earth Orbit Launch Safety Officer Ministry of Education, Culture, Sports, Science and Technology Ministry of Public Management, Home Affairs, Posts and Telecommunications National Aeronautics and Space National Aeronautics and Space Administration National Space Research and Development Agency Navigation with Indian Constellation National Board for Space Activities National Environmental Policy Act Nuclear power source National Remote Sensing Centre Outer Space Act Outer Space Treaty Prime Minister Office Positioning, Navigation and Timing Polar Satellite Launch Vehicle Russian Space Agency Radio Regulations Remote Sensing Data Policy Range Safety Officer Right to Information Space Affairs South African National Space Agency Standards and Recommended Practices Satellite communication Satellite-based Augmentation System Satellite Control Centre Space Development Promotion Satish Dhawan Space Centre Sriharikota

Abbreviations

SL SLASO SLV UN UNCOPUOS UNGA UNGAR UNIDROIT UNTS WPC

xiii

Space Liability Space Licensing and Safety Office Satellite Launch Vehicle United Nations United Nations Committee on Peaceful Use of Outer Space United Nations General Assembly United Nations General Assembly Resolution International Institute for the Unification of Private Law United Nations Treaty Series Wireless Planning and Coordination Wing

Chapter 1

Introduction

During the initial years of space exploration, military and security reasons were the sole motivation for states to undertake any space activity but today it is majorly looked upon as a venture for commercial business. Outer space is no more merely a fora for demonstrating scientific capability, prestige and pride but rather, is an emerging market that contributes significantly to a nation’s economy. Considering the heavy cost involved in space activities, globally there has been significant cut down in space budgets and as an alternative reliance has been made on the private sector, which has repeatedly demonstrated proven technological and financial capacity. Over the last few decades space faring nations have been promoting private enterprises that are increasingly engaged in commercial activities like satellite telecommunication, remote sensing, space transportation services among others. Privatization of space activities brings new challenges for the State that necessitates a well-developed legal system in place. India is also positively looking forward to engage the industry in a greater role that would enable the country to meet its increased national requirements and possible commercial demand for launch services.1 Congratulating the Indian space scientist on an occasion where India successfully launched five satellites (30th June 2014) in a single mission the Hon’ble Prime Minister of India said: “India has a potential to become launch service provider of the world. We must work towards this.” The statement is quite visionary: it not only calls for enhancing space capability and capacity but also calls for developing a legal ecosystem that would help India to effectively discharge its international obligation, safeguard its financial interest and effectively realize such commercial goals.

1 Press

Information Bureau, Government of India 22 July 2016.

© Springer Nature Singapore Pte Ltd. 2020 K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6_1

1

2

1 Introduction

1.1 Understanding National Space Legislation International space law imposes international responsibility upon nation-states for their national activities in outer space. International responsibility is borne even for a non-governmental space activity and liability might be impugned upon the State for damage caused by a privately-operated space object. Governmental responsibility for private activities is a sound reason for the State to legislate. Knowing that the necessity for national space legislation largely originates from international treaties, a brief overview of the development of the international instruments applicable to outer space is presented below.

1.1.1 March of International Space Law No sooner did the first man made object—Sputnik (4th October, 1957) traverse into outer space, than the United Nations General Assembly (UNGA) set up an ad hoc committee (1958) to study the peaceful uses of outer space. A year later in 1959 a permanent committee called the United Nations Committee on Peaceful Use of Outer Space (UNCOPUOS) succeeded the ad hoc committee. Since then the UNCOPUOS has been actively engaged in making use of outer space for the betterment of mankind. It has two wings—one is the legal-subcommittee, which looks after the legal issues in outer space and the other is the scientific and technical subcommittee that take cares of the technological developments for peaceful uses of outer space. In just two decades (popularly called as the phase of hard lawmaking) of its inception the UNCOPUOS achieved milestone successes and came up with five international treaties—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 (Outer Space Treaty or OST)2 ; the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (hence forth Rescue Agreement)3 ; the 1972 Convention on International Liability for Damage Caused by Space Objects (hence forth Liability Convention)4 ; the 1975 Convention on Registration of Objects Launched into Outer Space (hence forth Registration Convention)5 and the 1979 Agreement Governing Activities of States on the Moon and Other Celestial Bodies (hence forth Moon Agreement).6 The OST is largely seen as the umbrella legislation for all space activities. The other treaties are an elaboration on specific provisions of the OST. The Moon Agreement has been ratified by only eighteen states till date and so its significance in effect is almost nullity. 2 610

UNTS 205 (done 27 January 1967, entered into force on 10 October 1967). UNTS 119 (done 22 April 1968, entered into force on 03 December 1968). 4 961 UNTS 187 (done 29 March 1972, entered into force 01 September 1972). 5 289 UNTS 3 (done 14 January 1975, entered into force 15 September 1976). 6 1363 UNTS 3 (done 18 December 1979, entered into force 11 July 1984). 3 672

1.1 Understanding National Space Legislation

3

Treaty making at the UNCOPUOS is through consensus, which is quite cumbersome because a single dissent can defeat the entire process. For this reason, 1979 onwards no new space treaty has come into existence. Instead, a bundle of nonbinding resolutions has been passed by the UN General Assembly thereafter. The 1982 ‘Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting’7 ; the 1986 ‘Principles Relating to Remote Sensing of the Earth from Outer Space’8 ; the 1992 ‘Principles Relevant to the Nuclear Power Sources in Outer Space’9 belong to the second phase of lawmaking. 1996 onwards has been considered as the third phase in the lawmaking process i.e. the phase of reinterpretation of provisions of Outer Space Treaty. The 1996 ‘Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of All States, taking into particular the needs of developing countries’10 is a reinterpretation of Article 1 of the OST; the 2004 ‘Resolution on the Application of the Concept of the Launching State’11 is a reinterpretation of the definition of ‘launching state’ as used in the Liability Convention and the Registration Convention; the 2007 ‘Resolution on Recommendations on Enhancing the Practice of States and International Intergovernmental Organizations in Registering Space Objects’12 is a reinterpretation of the Registration Convention; the 2013 ‘Resolution on Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space’13 is a reinterpretation of the Article VI of the OST. The 2007 ‘Space Debris Mitigation Guidelines’14 elaborated by the IADC and adopted by the UNGA, has been claimed15 to be a new era in space law because the resolution was initially drafted outside the UN body and later adopted by it. The 2011 ‘Space Protocol’16 to the UNIDROITS17 Convention on Asset-Based Financing (Cape Town Convention)18 is also similarly placed. Trends indicate that space

7 UNGAR

37/92 (10 December 1982). 41/65 (03 December 1986). 9 UNGAR 47/68 (14 December 1992). 10 UNGAR 51/122 (13 December 1996). 11 UNGAR 59/115(10 December 2004). 12 UNGAR 62/101 (17 December 2007). 13 UNGAR 68/74 (11 December 2013). 14 UNGAR 62/217 (22 December 2007). 15 Stephan Hobe, National Space Legislation: What the International Law Demands and How it is Implemented in R. Venkata Rao and Kumar Abhijeet (eds.) Commercialisation and Privatisation of Space: Issues for National Space Legislation, KW Publishers, p. 32. 16 Signed in Berlin on 9 March 2012. 17 “The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental Organisation with its seat in the Villa Aldobrandini in Rome. Its purpose is to study needs and methods for modernising, harmonising and co-ordinating private and in particular commercial law as between States and groups of States and to formulate uniform law instruments, principles and rules to achieve those objectives.” http://www.unidroit.org/about-unidroit/overview. 18 Signed at Cape Town on 16 November 2001. 8 UNGAR

4

1 Introduction

legislation need not be confined to UNCOPUOS but it can emerge from any other international body. As private actors have taken entry in space, “a new phase of international space law is necessary and about to start: a phase of private space lawmaking”.19 For example in 2012, Austria procured the launch of two small satellites from India qualifying Austria as a launching state. These satellites were developed under the joint collaboration of universities and the Government of Austria. The new role of Austria as a ‘launching State’ triggered discussions on the need of an appropriate regulatory framework and eventually in response to the development of small satellite projects being undertaken by the Austrian universities, on December 6, 2011 the Austrian Parliament unanimously adopted the ‘Federal Law on the Authorization of Space activities and the Establishment of a National Space Registry’ (Austrian Outer Space Act).20 The Act is not only designed for space activities dedicated to science, research and education but also for commercial space activities, which might become gradually important in Austria.21 The Danish Space Act intends to create a private interest in outer space activities for its citizens, and harmonizes those future private space activities with Denmark’s obligations under international law.22 The need for French legislation in respect of outer space became necessary following the launch of a Russian rocket from the Korou launch pad in French Guinea that highlighted the international responsibility and liability of France.23 Against this background and the increasing participation of commercial private entities on 3 June 2008, the French Parliament passed a law concerning the operation in outer space—“the French Space Operation Act”24 (hereinafter FSOA). Similarly, emergence of non-governmental entities in outer space activities operating within the Netherlands created the necessity to implement the

19 Stephan Hobe, National Space Legislation: What the International Law Demands and How it is Implemented in R. Venkata Rao and Kumar Abhijeet (eds.) Commercialisation and Privatisation of Space: Issues for National Space Legislation, KW Publishers, p. 31. 20 Irmgard Marboe, The New Austrian Outer Space Act, 61 German Journal of Air and Space Law 1/2012, p. 26. 21 Ibid. at p. 32. 22 Michael Listner, A Comprehensive First Look At Denmark’s Domestic Space Law, The Space Review, May 31, 2016. 23 Following a Franco-Russian agreement on cooperation in launching services (agreement of 26 November 2006, completed by the protocol of 12 January 2009), the Russian rocket Soyuz was launched by France from the Kourou launch pad in French Guinea; Mireille Coustion, Introduction Space Operation Act 2008 in Space Law Basic Legal Document, E.XVI p. 3; Lucien Rapp, When France Puts its Own Stamp on the Space Law Landscape in 35 Journal of Space Law, 2009, p. 315 republished as Lucien Rapp, When France Puts its Own Stamp on the Space Law Landscape: Comments on Act No. 2008-518 of 3 June 2008 Relative to Space Operations, Air and Space Law Journal, Pp. 87–103. 24 “LOI no 2008-518 du 3 juin 2008 relative aux opérations spatiales” Unofficial translation available in Space Law Basic Legal Document, E.XVI.1, Pp. 1–12; Also available in 34 Journal of Space Law 2008, Pp. 453–470.

1.1 Understanding National Space Legislation

5

obligations arising out of the five UN Treaties25 ; and the Dutch Law Incorporating Rules Concerning Space Activities and the Establishment of Registry of Space Objects26 (henceforth Dutch Space Activities Act) was adopted on 25th January 2007 that came into force on 1 January 2008. Alike others, in the early 1980s when Swedish companies were showing growing involvement in space activities, Sweden also felt the necessity to develop a domestic regulatory framework to fulfill its international obligations flowing from the Space Treaties.27 This resulted in the enactment of the ‘Act on Space Activities’28 that has only four sections complimented by the ‘Decree on Space Activities’.29 Indonesia is an island country located on the equator between the oceans, enjoys a natural advantage for developing space launch capabilities. Amongst other benefits of space, it intends to develop a spaceport. Recognizing the special geographical advantage Indonesia and achieve self-reliance in space activities the Parliament of the Republic of Indonesia on 9 July 2013 promulgated the Law on Space Activities.30 Australia has been involved in space activities as early as 1949.31 In the late 1990s the Government of Australia began to consider the establishment of a commercial launch industry that created a felt need for a domestic legislation in regard to the implementation of Australia’s international obligation.32 As of today the Australia’s legal framework is majorly confined in three key documents—the Space Activities Act 199833 as amended in 200134 and 2002,35 the Space Activities Regulations 2001 and Space Activities (Approved Scientific or Educational Organizations) Guidelines 25 Frans G. von der Dunk, Implementing the United Nations Outer Space Treaties – The Case of the Netherlands in Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space, 2005 AIAA, Pp. 139–145; Frans G. von der Dunk, Implementing the United Nations Outer Space Treaties – The Case of the Netherlands in Christian Brünner/ Edith Walter (Eds.) National Space Law, 2008 Böhlau Verlag, Pp. 81–104. 26 Unofficial Translation available in Space Law basic Legal Documents, Vol. 5, EXIV. 27 Niklas Hedman, Swedish Space Legislation in Proceedings of the United Nations/ International Institute of Air and Space Law Workshop on Capacity Building in Space Law, 2003 United Nations ST/SPACE/14, p. 111; Niklas Hedman, Swedish Legislation on Space Activities in Christian Brünner/Edith Walter (Eds.) National Space Law, 2008 Böhlau Verlag, p. 74. 28 1982:963. English translated version available in Space Law Basic Legal Documents. 29 982:1069. English translated version available in Space Law Basic Legal Documents. 30 Number 21 of 2013. 31 As early as 1949, a test launch facility was developed at a site in Woomera; See Steven Freeland, Difficulties of Implementing National Space Legislation Exemplified by the Australian Approach in Project 2001 Plus – Global and European Challenges for Air and Space Law at the Edge of the 21st Century, 2006 Carl Heymann Verlag, p. 69; Noel Siemon and Steven Freeland, Regulation of Space Activities in Australia in Ram S. Jakhu (Ed.) National Regulation of Space Activities 2010, Springer, p. 38. 32 Vernon Nase, Introduction to Space Activities Act 1998 in Basic Legal Documents, Vol. 5, E. VII, p. 1. Eleven International Publishing 2015; Michael E Davis, The Regulation of the Australian Space Launch Industry in 49 German Journal of Air and Space Law 1/2000, p. 67–68. 33 No. 123 of 1998 as amended. Assented on 21 December 1998. 34 Space Activities Amendment (Bilateral Agreement) Act 2001 (No. 101, 2001). 35 Space Activities Amendment Act 2002 (No. 100, 2002).

6

1 Introduction

2015.36 As stated in the explanatory memorandum of the Space Activities Bill, legislation was intended to attract investments by commercial entities and properly safeguard Australia’s national interests.37 As early as the 1960s Brazil had a vision for a comprehensive space program.38 It has two spaceports namely the Barreira do Inferno Rocket Range inaugurated in 1965 and the Alcantara Launch Centre (CLA) Conceived in 1979 and opened for operation in 1990.39 The CLA being located near the equator enjoys a natural geographic advantage that permits considerable fuel saving launches in relation to the worlds’ existing launch sites attracting foreign and private investments in space business.40 In light of the international obligations of Brazil, to exploit private launchings from the CLA it was urgent to address the prominent legal aspects of private space activities. To avoid a lengthy parliamentary legislative process, Brazil opted for a “fast track” process i.e. to rule by administrative edicts.41 Accordingly in the year 200142 and 200243 two administrative Edicts enclosing regulations relating to launch licenses and authorization of space launch activities on Brazilian territory respectively was issued.44 These two administrative Edicts in a ‘narrow sense’ have been considered to

36 Refer “Legislative arrangements for civil space activities”. http://www.industry.gov.au/industry/ IndustrySectors/space/Pages/Legislative-arrangements-for-civil-space-activites.aspx. 37 Explanatory Memorandum to the Australian Space Activities Bill 1998, provides further details of the background to the establishment of the Act. Available at http://parlinfo.aph.gov.au (accessed on 30th November 2016). 38 Olavo de O. Bittencourt Neto, Private Launch Activities on Brazilian Territory – Current Legal Framework in 58 German Journal of Air and Space Law 3/2009, p. 430. The first relevant Brazilian legal text was the Presidential decree of August 3rd, 1961 that created the Organizing Group for the National Commission on Space Activities; see José Monserrat Filho, Brazilian Launch Licensing and Authorizing Regimes in Proceedings of the United nations/ International Institute of Air and Space Law Workshop on Capacity Building in Space Law, 2003 United Nations ST/SPACE/14, p. 98. 39 José Monserrat Filho, Brazilian Launch Licensing and Authorizing Regimes in Proceedings of the United nations/ International Institute of Air and Space Law Workshop on Capacity Building in Space Law, 2003 United Nations ST/SPACE/14, p. 97. 40 Ibid. 41 Olavo de O. Bittencourt Neto, Private Launch Activities on Brazilian Territory – Current Legal Framework in 58 German Journal of Air and Space Law 3/2009, p. 432. 42 Administrative Edict No. 27 of June 20th 2001 enclosing “Regulation on Procedures and on Definition of necessary Requirements for the Request, Evaluation, Issuance, Follow-Up and Supervision of Licenses for carrying out Launching Space Activities on Brazilian Territory” available in Space Law Basic Legal Documents, Vol. 5, 2015, E.XIX.1. 43 Administrative Edict No. 5 of February 21st 2002 enclosing “Regulation on Authorization Procedures for Carrying out Space Launching Activities on Brazilian Territory” available in Space Law Basic Legal Documents, Vol. 5, 2015, E.XIX.2. 44 The Edicts entered into force on publication in the Union’s Official Gazette dated 21 June 2001 and February 25, 2002 respectively. They are a binding piece of law under the Brazilian legal system.

1.1 Understanding National Space Legislation

7

be the national space legislation of Brazil, making Brazil the first developing nation to have proper national space legislation.45

1.1.2 Necessity for National Space Legislation The necessity for national space legislation is primarily because of the implementation of international obligations (authorisation, supervision, registration) and the protection of the financial interests of the respective State (safety, security, indemnification issues).46 In international space law, liability for damage caused by a space object is primarily attributed to the ‘launching state’. A state that launches or procures the launching of an object into outer space or from whose territory or facility an object is launched is internationally liable for damage caused to another state.47 The first three situations are of simple nature and self-explanatory but ‘procurement of launch’ creates a wide arena for discussion. Procurement is not restricted merely to activities where a state has a direct control over space activities but it also includes where the state has a possibility to control the activity.48 The possibility to control the act of launching may be either when the state controls the launch service provider or controls the operator of the payload or both.49 States bear international liability even for the damage caused by the activities of non-governmental entities. International space law does not create any exception in this respect. Article VI of the OST imposes international responsibility upon States for their activities in outer space including those of their non-governmental entities. According to it states have “to ensure that national activities are in accordance with the provisions of the Outer Space Treaty”. This means national activities including those of private entities must be for the ‘benefit and interest of all countries’,50 must not appropriate by any means,51 must be in accordance with international law,52 must 45 Frans G. von der Dunk, Launching Alcantara into the Global Space Economy – The 2001 Brazilian National Space Law in 2002 Proceedings of the Forty-fifth Colloquium on the Law of Outer Space Pp. 310–320. 46 Michael Gerhard and Kai-Uwe Schrogl, Report of the ‘Project 2001’ Working Group on National Space Legislation in Karl-Heinz Böckstiegel (ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space, Carl Heymanns Verlag, p. 535. 47 Article VII OST. 48 Michael Gerhard, The State of the Art and Recent Trends in the Development of National Space Law, in Christian Brünner / Edith Walter (Eds.) National Space Law: Development in Europe – Challenges for Small Countries, Böhlau Verlag, 2008, p. 68. 49 Michael Gerhard, The State of the Art and Recent Trends in the Development of National Space Law, in Christian Brünner / Edith Walter (Eds.) National Space Law: Development in Europe – Challenges for Small Countries, Böhlau Verlag, 2008, p. 70. 50 Article I OST. 51 Article II OST. 52 Article III OST.

8

1 Introduction

be for ‘peaceful purposes’53 and must not contaminate the environment of outer space.54 Furthermore, when a space object is launched into earth orbit or beyond, the launching State has an obligation to register the space object in its national registry and communicate the Secretary General of the United Nations of the establishment of such a registry.55 For effective discharge of these mammoth international responsibilities, Article VI of the OST mandates the States to authorize and continuously supervise the activities of non-governmental entities in space.56 ‘Authorisation and continuing supervision’ being procedural aspects is primarily considered to be the fundamental basis for national space legislation. Frans Von der Dunk has explained that “those states that have a launching capability residing in their territory and have opened or are willing to open it up to private operators, have all found it necessary to establish some sort of licensing control over these operations, all including at least the launches of space objects from their territory in view of the unequivocal qualification of any state whose territory is so used as a “launching State” under the Liability Convention, and hence is liable for damage caused by these space objects under that Convention”.57 An authorisation through law is the preferable, most comprehensive and transparent means of exercising supervision and control and ensuring proper domestic handling of international liabilities.58 In addition to the requirement of international law, India also has a Constitutional necessity for national space legislation. Space lawyers have explained that if the Government of India has to pay for damages then the Government of India will have to bank on the Consolidated Fund of India and constitutionally no money can be withdrawn from this fund without a law.59

1.1.3 Contents of National Space Legislation The obligation of Article VI of the OST to authorize and supervise activities of non-governmental entity is widely seen as the basis for national space legislation but

53 Article

IV OST. IX OST. 55 Article II Registration Convention. 56 Article VI OST. 57 Frans G. von der Dunk, The International Law of Outer Space and Consequences at the National Level for India: Towards an Indian National Space Law in Satyam Chatterjee (Eds.) Indian Yearbook of International Law and Policy, Satyam Law International, 2010, p. 154. 58 Ibid. 59 Refer Article 266(3), Constitution of India. 54 Article

1.1 Understanding National Space Legislation

9

neither Article VI nor any other body of international law prescribe the methods how States should implement their obligations in their domestic laws.60 The contents of national space legislation are left to the discretion of the states but two inherent conditions can be found in the OST: firstly, an assurance that the activity is carried out in conformity with the provisions of the OST and secondly, safety of the activity by way of authorization.61 State may prescribe additional authorisation conditions, e.g. assurance of the national security interests or measures to avoid debris among others. Several scientific research studies have been done to identify the contours of national space legislation. Those that have significantly impacted on this subject are discussed below. Project 2001, Germany The Institute of Air and Space Law (IASL), University of Cologne, Germany had undertaken a research project tilted “Project 2001 – Legal Framework for the Commercial Use of Outer Space” in collaboration with the German Aerospace Centre (DLR).62 Within the scope of the project the working group on national space legislation identified five basic elements of national space legislation termed as ‘Building Blocks’—(i) authorisation of space activities (ii) supervision of space activities (iii) registration of space object (iv) indemnification regulation (v) additional regulation.63 While the first two building block is based on Article VI of the OST, the third building block is based on Article II of the Registration Convention. The fourth block is based on Article VII of the OST.64 A launching state could be held liable even if the State was not actively involved in the event that caused the damage. In such cases it is legitimate for the state to seek recourse against those because of whom it had to compensate for damages and therefore a necessity for indemnification.65 The fifth

60 V. Kopal, International and National Space Law in Karl-Heinz Böckstiegel (ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space, Carl Heymanns Verlag, p. 571. 61 Michael Gerhard, Article VI, in Cologne Commentary on Space Law, Volume 1, Carl Heymanns Verlag, p. 117. 62 Project 2001 investigated the state of the law for the major areas of commercial uses of outer space, identified the gaps in the legal framework and made recommendations for further development of the legal framework. The Project focuses on the following areas: 1. Privatisation; 2. Launch and Associated Services; 3. Remote Sensing; 4. Telecommunication; 5. Space Stations; 6. National Space Legislation. For each of these areas, a Working Group of international experts was established. Findings and recommendations of the project were presented at the International Colloquium Cologne, May 29–31, 2001. For proceedings of the colloquium refer Karl-Heinz Böckstiegel (ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space, Carl Heymanns Verlag. 63 Michael Gerhard and Kai-Uwe Schrogl, Report of the ‘Project 2001’ Working Group on National Space Legislation in Karl-Heinz Böckstiegel (Ed.) Project 2001 – Legal Framework for the Commercial Use of Outer Space, Carl Heymann Verlag, Pp. 529–564; also refer Michael Gerhard, Project 2001 – Legal Framework for the Commercial Use of Outer Space 50 German Journal of Air and Space Law 2/2001, Pp. 240–246. 64 Supra n. 61 at p. 121. 65 Ibid.

10

1 Introduction

block is a general clause where states could introduce other incidental requirements like insurance, environmental aspects, intellectual property etc.66 These building blocks were formally introduced to the Legal Subcommittee of the UNCOPUOS that was gradually accommodated in the UNGAR on the “Application of the Concept of the Launching State.”67 Project 2001 Plus, Germany Project 2001 was succeeded by a new research project of the IASL and the DLR entitled “Project 2001 Plus – Global and European Challenges for Air and Space Law at the Edge of the 21st Century” under the scientific directorship of Prof. Stephan Hobe.68 Within the scope of the Project 2001 Plus, based on the recommendations of Project 2001, a workshop titled “Towards a harmonized approach for national space legislation in Europe” was aimed at shaping basic common structures within the ‘building blocks’ in order to have a harmonized legislation.69 The workshop enhanced the ‘building blocks’ by identifying issues of administrative procedure, aspects of technical safety evaluation, compulsory insurance, indemnification of the liable launching state and liability related contract aspects.70 It studied space legislation of selected space faring nations,71 and recommended a structure that should be the cornerstone of any national space legislation in view of the international law obligations of states stemming from the space treaties.72 The ILA Model Law The International Law Association (ILA) is an international non-governmental organization (founded in Brussels in 1873) engaged in the study and development of 66 Ibid. 67 Michael Gerhard and Kristinia Moll, Introduction by Rapporteurs, Session 1: Perspectives for More National Space Legislation in Stephan Hobe, Bernarhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.) Project 2001 Plus – Global and European Challenges for Air and Space Law at the Edge of 21st Century, Carl Heymann Verlag, 2005, p. 19; Kail-Uwe Schrogl and Charles Davies, A New Look at the Concept of the “Launching State” – The Result of the UNCOPUOS Legal Subcommittee Working Group 2000–2002, 51 German Journal of Air and Space Law, 3/2002, p. 375. 68 The findings and conclusions of Project 2001 Plus was presented in the Symposium in Cologne, 8–10 June 2005. For proceedings of the symposium refer Stephan Hobe, Bernarhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.) Project 2001 Plus – Global and European Challenges for Air and Space Law at the Edge of 21st Century, Carl Heymann Verlag, 2005. 69 Stephan Hobe, Bernarhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.) in proceedings of the Workshop Towards a Harmonized National Space Legislation in Europe, 29–30 January, 2004, Berlin. 70 Michael Gerhard and Kristina Moll, The Gradual Change from “Building Blocks” to a Common Shape of National Space Legislation in Europe in Stephan Hobe, Bernarhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.) Towards a Harmonized National Space Legislation in Europe, Cologne, 2004, p. 46–50. 71 Volume III, National Space Legislation, Documentation of the Project 2001 Plus-Workshop “Towards a Harmonised Approach for National Space Legislation in Europe”, 29/30 January 2004, Berlin, Germany. 72 Irmgard Marboe, Nation Space Law in Frans von der Dunk and Fabio Tronchetti (Eds.) Handbook of Space Law, Edward Elgar Publishing, 2015, p. 181.

1.1 Understanding National Space Legislation

11

international law both public and private international law.73 Based on the findings of Project 2001 Plus,74 the Space Law Committee75 of the ILA at its biennial conference, Berlin (2004) proposed for model national space legislation that would assist states in enacting their respective space legislation.76 The committee started its work in Toronto, Canada (2006) and continued discussion at the subsequent ILA conferences, Rio de Janeiro, South Africa (2008). The first draft of the Model Law was presented at The Hague, The Netherlands conference (2010). The rapporteur of the space law committee Prof. Stephan Hobe, who was also instrumental in drafting this Model Law, presented the final revised draft of the Model Law at the 75th conference of the ILA at Sofia, Bulgaria (2012).77 In this very same conference the ILA, Resolution No. 6/2012, adopted the Model Law.78 Based on State practices,79 the Model Law in fourteen articles proposes important requirements for national space legislation.80 It clarifies significantly the manner and conditions of authorisation, supervision, protection of environment, registration of space objects, transfer of space activity, insurance, liability and recourse, and sanctions. The Model can “serve as a point of reference to be used by States as a starting point for their national drafting efforts”.81 The UNGAR Recommendations on National Space Legislation In 2007, the Legal Sub-Committee of the UNCOPUOS introduced a new agenda item entitled ‘General exchange of information on national legislation relevant for 73 http://www.ila-hq.org/index.php/about-us.

For ILA’s contribution to space law refer, Maureen Williams, The Role of the International Law Association in Development of the Law of Outer Space in Karl-Heinz Böckstiegel (Ed.) Project 2001 – Legal Framework for the Commercial Use of Outer Space, Carl Heymann Verlag, Pp. 37–45. 74 The workshop “Towards a harmonized approach for national space legislation in Europe” of the Project 2001 Plus was the fundamental basis of the Draft Model Law; Report of the Space Law Committee of ILA on the Legal Aspects of the Privatisation and Commercialisation of Space Activities in Report of the Seventy-First Conference, Berlin 2004, ILA, p. 759. 75 The ILA has established international committees to undertake research on topics of international law. The committee members are leading experts on the chosen topic from all over the globe. On completion of the work (usually within 4 years) the committee presents its report at the Biennial Conference and the ILA may pass a resolution in form of rules or guidelines. http://www.ila-hq. org/index.php/committees. 76 Report of the Space Law Committee of ILA on the Legal Aspects of the Privatisation and Commercialisation of Space Activities, in Report of the Seventy-Fifth Conference, Sofia 2012, ILA, p. 315. 77 Ibid. at p. 308. 78 Supra n. 76 at p. 40–43. 79 Stephan Hobe, The ILA Model Law for National Space Legislation, 62 German Journal of Air and Space Law, 1/2003, p. 87. 80 Stephan Hobe and Kuan-Wei Chen, Legal Status of Outer Space and Celestial Bodies in Ram S. Jakhu and Paul Stephen Dempsey (Eds.) Routledge Handbook of Space Law, 2017, Routledge Taylor and Francis Group, p. 39. 81 Stephan Hobe, The ILA Model Law for National Space Legislation, 62 German Journal of Air and Space Law, 1/2003, p. 95.

12

1 Introduction

the peaceful exploration and use of outer space’.82 It constituted a working group with a four-year work plan. The working group provided ‘recommendations on national legislation relevant to the peaceful exploration and use of outer space’ that was finally passed by the UN General Assembly in 2013. The resolution contains eight ‘elements for consideration’ for states when enacting regulatory frameworks for national space activities.83 These are (1) scope of space activities; (2) jurisdiction over space activities; (3) authorization procedure; (4) conditions of authorisation (5) ways and means of supervision of space activities; (6) establishment of a national registry of space objects (7) recourse and insurance requirements (8) transfer of ownership and control of a space object in orbit.84 These elements are based on the responses to the texts presented by the UNCOPUOS member states to the working group that “serve as a reminder of what should not be forgotten in the process of drafting national space legislation.”85 The Bangalore Declaration 2015 On July 18, 2015 the National Law School of India University, Bangalore organized a one-day conference on the theme ‘Commercialisation and Privatisation of Space—Issues for National Space Legislation’.86 Experts from the academia, scientific community, Government, legal, non-governmental organization including industries deliberated on the various aspects of national space legislation. The conference came up with a one-page document called as the ‘Bangalore Declaration’ that prescribed a minimum legislative agenda for regulating space activities in India. The ‘2015 Bangalore Declaration’87 proposed that a Space Act of India must minimally address the following issues: space governance; licensing conditions; monitoring of space activities; liability for damages, protection of environment of space; registration of space objects, indemnification factors; insurance coverage; trade related aspects including sale/transfer of space objects; research and development; data protection and IPR; technology transfer; sanctions for breach and dispute resolution. The documents with regard to the principles set up by the OST as well as with regard to safety aspects, the setting up of a national registry for space objects and an indemnification regulation illustrate only the basic essentials, which should be 82 Report of the Legal Sub-Committee on its fifty-first session, Vienna, 19–30 March 2012, UN Doc. A/AC/105/1003. 83 UNGAR 68/74, The Resolution on Recommendation on National Space Legislation Relevant to the Exploration and Peaceful Use of Outer Space (adopted on 11 December 2013). 84 Ibid. 85 Irmgard Marboe and Setsuko Aoki, Historical Background and Context, The 2013 Resolution on Recommendation on National Space Legislation Relevant to the Peaceful Exploration and Use of Outer Space in Stephan Hobe, Bernarhard Schmidt-Tedd and Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Vol. III, Carl Heymanns Verlag, 2015, p. 546. 86 For proceedings of the conference refer R. Venkata Rao and Kumar Abhijeet (Eds.) Commercialisation and Privatisation of Space – Issues for national Space Legislation, Knowledge World Publishers, 2015. 87 For commentary on the 2015 Bangalore Declaration refer Kumar Abhijeet, Bangalore Declaration – A Beacon for National Space Legislation for India in S. Bhat (Ed.) Space Law: The Emerging Trends, Eastern Law House, Pvt. Ltd., 2017, Pp. 291–306.

1.1 Understanding National Space Legislation

13

generally present in space legislation of any space faring nation.88 These are merely recommendatory and as per the specific requirement of a particular space activity there may be additional agenda for legislation. Nonetheless, the general laws e.g. export control laws; competition laws; commercial laws and others will also have a significant bearing on the space activities.

1.1.4 Advantages of National Space Legislation Besides providing a mechanism to implement international obligations there are numerous other benefits of national space legislation. Firstly, it will address incidental issues to authorisation and supervision like the authorisation procedure; the authorisation authority, the power and functions of such authority; duration of authorisation; the supervisory authority and its power and functions. Second, it will address the safety and security aspects by examining technology and the financial capacity of the entrepreneur, the purpose and longevity of intended space activity. Third, it will enable the State to have recourse against the private enterprise if the State has to pay for damages. It can seek indemnification for damages paid. To safeguard the financial interest of the State as well as the private enterprise it may levy compulsory third party insurance depending upon the risk involved in a particular space activity. Fourth, by way of registration of space objects, the State can always retain jurisdiction and control over the space objects, which will also help in effective supervision of the space activity. Fifth, as liability vests forever with the launching state, sale-purchase of satellites in orbit or transfer of authorisation can be checked through legislation. These activities without prior approval of authorities can be prohibited. Sixth, national space legislation can help in the protection of the environment of outer space. It can prescribe for debris mitigation, environmental impact assessment and other environmental safety measures. Seventh, national space legislation can be a potential enabler of space commerce. It can prescribe for limited/shared liability of private enterprise so that they feel motivated to take this risky business. It can provide for concession and relaxation in insurance requirement depending upon the quantum of risk and nature of space activity. Eighth, incidental issues to space commerce like protection of intellectual property rights; dispute settlements and others can be effectively addressed under through legislation. The issue of delimitation outer space has not been able to be resolved at the international level; the national space legislation can play a subservient role on this aspect, leading to a customary law. With increasing commercial viability of space activities, the number of private actors engaged in such activities will increase and the burden of states to engage 88 Michael Gerhard and Kai-Uwe Schrogl, Report of the ‘Project 2001’ Working Group on National Space Legislation in Karl-Heinz Böckstiegel (ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space, Carl Heymanns Verlag, p. 557.

14

1 Introduction

in such undertaking will reduce.89 The above-illustrated benefits will lead to the establishment of a transparent, predictable and stable legal regime that will enable a prospective space entrepreneur to make a prior informed decision whether to invest or not invest. Therefore, national space legislation is in the very interest of states and it must not be viewed as an impediment to space activities.

1.2 Scope of the Research India does not have any space related regulation. The absence of law has been a major hurdle for private sector participation. This research was undertaken with the objective to propose a draft framework law for space activities in India. The hypothesis is in the background of private sector involvement in space, the international obligation of India emanating from the space treaties can effectively be implemented through law, which will serve as an enabler of space commerce. Towards achieving the objective of this research, the following incidental issues were also looked into: 1. Article VI of the OST imposes the obligation upon the States to ‘authorize and continuingly supervise’ activities of non-governmental entities. i.

What aspects of administrative procedure are involved in the authorization of activities of non-governmental entities? ii. What authorization conditions have been imposed by space faring nations for the participation of non-governmental entities? iii. How have various spacefaring nations supervised the activities of nongovernmental entities? 2. Article VII of the OST imposes liability for damage caused by space objects upon the launching states. It denotes the link between a state’s international responsibility for its national activity as provided by the Article VI of the OST and its international liability for damage caused by its space object(s).90 i.

Whether the launching state must have a national space legislation to discharge this obligation? ii. How have spacefaring nations been discharging their international liability for damage caused by activities of non-governmental entities? Do they have recourse against the compensation paid? iii. Till what extent a private player is made liable? Should it be absolute or limited? 89 Stephan Hobe, Harmonization of National Laws as an Answer to the Phenomenon of Globalization in Karl-Heinz Böckstiegel (ed.), ‘Project 2001’ – Legal Framework for the Commercial Use of Outer Space, Carl Heymanns Verlag, p. 638. 90 Armel Kerrest and Lesley Jane Smith Article VII in Stephan Hobe, Bernarhard Schmidt-Tedd and Kai-Uwe Schrogl(eds.) Cologne Commentary on Space Law, Vol. I, Carl Heymanns Verlag, 2009, p. 126.

1.2 Scope of the Research

15

3. Launching States are under an obligation to maintain national registry of space objects and communicate the information to UN registry. i. What information will be required from the non-governmental entity to maintain national registry? ii. What benefits flow from the registration of space objects? 4. Private entities are participating for business interest where in orbit sale/purchase of satellites are inevitable. i. What should the launching state do if a particular space object is sold to foreign nationals or nationals other than whom the authorization was issued? ii. How will national space legislation be an enabler of space commerce? 5. Space applications satellite communication, remote sensing, navigation and many others are increasingly becoming commercial in nature. How would law regulate a specific space activity? 6. Outer space has not been left untouched with the perils of human development. Space debris is a major threat posing risk to space assets and access to outer space. What necessary measures are to be undertaken so that activities of nongovernmental entities do not further increase vulnerability of outer space? As of this writing of dissertation going on, the Government of India released the draft of the ‘Space Activities Bill’91 dated November 21, 2017. The Draft Bill is in the public domain inviting comments from all the stakeholders on the same.92 Law making is a complex process that involves exchange of information, dialogues, deliberations, and discussion with various stakeholders. This makes this research study much more relevant that will also serve as a ready point of reference enabling the Government to improve this Draft Bill significantly. This work has analyzed the requirements of international law, has studied the state practices towards national space legislation so as to know how international law is implemented and has explored the requirements of India. It has prescribed mechanism for authorization and supervision, liability and recourse; procedure for registration; protection of the environment of outer space; transfer of in orbit space objects, prevention and control of unauthorized space activities, dispute resolution and other related aspects of commercialization and privatization of space.

1.3 Methodology The methodology adopted is largely doctrinal, carried in three steps. Step one is the analysis of the international instruments governing space activities that established 91 No.

E. 11020/2/2015-Sec-VI, Government of India.

92 https://www.isro.gov.in/update/21-nov-2017/seeking-comments-draft-space-activities-bill-

2017-stake-holders-public-regarding.

16

1 Introduction

the rationale for national space legislation—the underlying hypothesis is, since the basis of national space legislation largely emanates from international obligations there exists certain common denominator that any space legislation must address. It has comprehensively analyzed the international legal framework of space activities to determine the requirement, extent and scope of a domestic legislation to regulate space activities. Step two is the study of general ideas concerning national space law wherein a comparative study of legislative experiences of the countries that have adopted legislations governing space activities will be done. The study of national space legislation is also an empirical test of the above stated hypothesis. The analysis is primarily through the primary sources i.e. the acts, decrees and orders enacted by the states. Furthermore, the relevant explanatory memoranda to these primary resources will be used to understand the provisions and rationale behind the provisions. Around twenty national space legislations—Australia, Austria, Belgium, Brazil, Canada, Denmark, France, Indonesia, Japan, Kazakhstan, New Zealand, Nigeria, South Africa, the Republic of Korea, Sweden, The Netherlands, The Russian Federation, The United Kingdom, The United States of America and Ukraine is measured against the 2012 ILA Model Law and the 2013 UNGAR recommendations on national space legislation as these international instruments also serve to be a standard recommendatory referral work on the subject matter of this research. The third step is the drafting of a framework law according to India’s need. A case study from India has been done to understand the state of affairs regarding space activity and existing laws regulating them upon. India is one of the active spacefaring nations, has significant achievements to its credit and off lately has considered for private sector participation but it does not have any dedicated legislation that could provide an ecosystem for private enterprise participation. The work has explored the current mechanism of regulating space activities in India, which are grossly inadequate, identified the lacunae and shortcomings and has proposed draft framework legislation for regulating space activities in India. Towards achieving this objective, the two model national space laws—one drafted by the ILA and another proposed by the Legal Sub-committee of the UNCOPUOS were referred.

Chapter 2

Rationale for National Space Legislation

With increasing privatization and commercialization of space activities, the importance of national space legislation has been felt by space-faring nations. The rationale for national space legislation has been considered rooted in the corpus juris spatialis.1 The necessity for legislation emanating from these international documents is largely threefold: implementation of international obligations, protection of financial interests of the respective State and development of conducive atmosphere for growth of private space activities.2 The subsequent sections shall argue the fundamental basis of national space legislation.

1 The

five UN Treaties and space related UNGA resolutions. Irmgard Marboe, Setsuko Aoki and Tare Brisibe, 2013 Resolution Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 3, Carl Heymanns, 2015, p. 495; F. G. von der Dunk Fundamental Provisions for National Space Laws, in Meeting International Responsibilities and Addressing Domestic Needs: Proceedings of United Nations, Vienna, 2006. 2 Michael Gerhard and Kai-Uwe Schrogl, Report of the Project 2001 Working Group on National Space Legislation in Karl –Heinz Böckstiegel (Ed.) Project 2001 – Legal Framework for the Commercial Use of Outer Space, Carl Heyman Verlag 2002, p. 532. Also see, Irmgard Marboe, National Space Legislation in Christian Brünner & Alexander Soucek (eds.), Outer Space in Society, Politics and Law, 2011 Springer-Verlag/Wien, pp. 439-463; Irmgard Marboe, National Space Legislation in Frans von der Dunk & Fabio Tronchetti (eds.) Handbook of Space Law Edward Elgar Publishing 2015, pp. 127-204; Stephan Hobe, National Space Legislation: What the International Law Demands and How it is Implemented in R. Venkata Rao & Kumar Abhijeet (Eds.) Commercialisation and Privatisation of Space, 2016 KW Publishers, pp. 31-36. © Springer Nature Singapore Pte Ltd. 2020 K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6_2

17

18

2 Rationale for National Space Legislation

2.1 Implementation of International Obligations There is the general duty upon states to comply with international law3 and bring their domestic law in conformity with obligations under international law.4 A failure to bring about such conformity is not in itself a direct breach of international law, and a breach arises only when the state concerned fails to observe its obligations on a specific occasion.5 A State might be forced to confront such a situation if it promotes private participation in outer space in void of legislation regulating their activities. States bear international responsibility to assure that their national activities are carried out in conformity with the provisions of the Outer Space Treaty.6 If a nongovernmental entity conducts space activities, it shall need “authorization and continuing supervision” by the appropriate State party to the treaty.7 If states can fulfil these two conditions without a law nothing better than that, but international obligations of states are so complicated with respect to private players’ participation that it is in the interest of the respective states to enact their respective national space legislation.8 In spite of this, there is no legal obligation upon the states to enact national space legislation.

2.1.1 International Responsibility for National Activity Article VI of the OST imposes international responsibility upon States for their national activities. The term “national activity” includes activities carried on by governmental entities as well as non-governmental entities.9 Therefore unlike other branches of international law, states can be held responsible for their private space activities because the OST does not create any distinction between governmental

3 See

1986, Vienna Convention on Law of Treaties. Brownlie, Principles of Public International Law, Oxford University Press 2008, p. 35 Fitzmaurice, 92 Hague Recueil (1957, II), 89; Robert Jennings and Arthur Watts (Eds.), Oppenheim’s International Law, Vol. 1, Longman Publishers, 1992, pp. 82-86. 5 Ian Brownlie, Principles of Public International Law, Oxford University Press 2008, p. 35; Robert Jennings and Arthur Watts (Eds.), Oppenheim’s International Law, Vol. 1, Longman Publishers, 1992, pp. 82-86. 6 Article VI OST. 7 Sentence 2 Article VI OST. 8 Armel Kerrest, Status of the Implementation of National Space Legislation and the results of the Project 2001 plus Working Group in Stephan Hobe/Bernard Schmidt-Tedd (eds.) ‘Project 2001 Plus’ – Global and European challenges for Air and Space Law at the edge of the 21st Century, Carl Heymann Verlag, 2006, p. 51. 9 Sentence 1, Article VI of OST. 4 Ian

2.1 Implementation of International Obligations

19

and non-governmental activities but rather treats them alike. “Public liability for private activities”10 is precisely because space activities are inherently ultra-hazardous, whoever conducts a certain space activity at least there will be one state that can be held responsible.11 Undoubtedly, for every activity in space, states bear international responsibility and are under an obligation to take appropriate steps in order to ensure that their natural or juridical persons engaged in outer space activity conduct it in accordance with international law.12 If a State commits or omits an activity in breach of its international obligations, a claim for compensation is likely.13 It follows herefrom that a breach of international responsibility of Article VI can also give rise to a claim for compensation,14 for example, an activity of a non-governmental entity not in accordance with the provisions of the Outer Space Treaty resulting in damage to another state party. Thus, international responsibility for private space activities is a strong incentive for States to enact national space legislation.15 “If States are internationally responsible for private space activities, they have a vital interest in regulating such activities and in making sure that the norms of international space law are respected by private space actors—as far as possible”.16

2.1.1.1

For Which “Space Activity” Do States Bear International Responsibility?

As stated in Article VI of the OST, States bear international responsibility for their national activities but the OST does not specify the list of activities for which States bear responsibility. The Cologne Commentary on Space Law17 suggests an illustrative list: 10 Frans G. von der Dunk, The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law in Frans G. von der Dunk (Ed.) National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, p. 5. 11 Ibid. at p. 9. 12 Manfred Lachs, The Law of Outer Space – An Experience in Contemporary Law-Making, Martinus Nijhoff Publishers, 2010, p. 114. The Original Book “The Law of Outer Space” by Manfred Lachs is edited by Tanja Masson-Zwaan & Stephan Hobe and reissued on the occasion of the 50th anniversary of International Institute of Space Law. 13 Robert Jennings and Arthur Watts (Eds.), Oppenheim’s International Law, Vol. 1, Longman Publishers, 1992, pp. 499-536. 14 Michael Gerhard, Article VI in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009. 15 Irmgard Marboe, Setsuko Aoki and Tare Brisibe, 2013 Resolution Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 3, Carl Heymanns, 2015, p. 496. 16 Ibid. at p. 496. 17 Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 109.

20

2 Rationale for National Space Legislation

1. The operation and control of a satellite, probe, platform or space station; 2. The use of such objects, e.g. for satellite communications, satellite remote sensing, satellite navigation or satellite exploration, etc.; 3. The launching of a space object into outer space; 4. Manufacturing of materials and other products in outer space; 5. Exploration, exploitation and use of celestial bodies. The list is not exhaustive, and variation has been seen in State practices.18

2.1.2 “Authorization and Continuing Supervision” States bear international responsibility not only for their own space activity, but also for those carried out by private players under their jurisdiction.19 To enable States to fulfil this obligation, Sentence 2 of Article VI proposes that “appropriate state parties” shall authorize and continuously supervise activities of non-governmental entities in outer space. The duty to “authorize and supervise” is widely seen as the basis for national space legislation,20 but it does not necessarily demand the enactment of it.21 The duty to authorize ensures that a state recognizes the activity to be undertaken by a private entity through a prior licensing procedure.22 The licensing procedure can be implemented either by legislation, often called national space legislation,23 or it can be implemented by other means, say, contractual agreements, but when private activities are conducted in outer space, states must have a legal mechanism to authorize and supervise non-governmental space activities.24 18 Generally most states do not interpret the term ‘space activities’ at all, e.g. Swedish Act. Some States define ‘operation and control of space object’ e.g. South Africa, Belgium, The Netherlands; Some interpret the term as explained above but also include a general clause or any other activity in space, e.g. UK Outer Space Act. See Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009. 19 Elisabeth Back Impallomeni, Necessity for the Development of National Space Law in Christian Brünner/Edith Walter (Eds.) National Space Law: Development in Europe – Challenges for Small Countries, Böhlau Verlag, 2008, p. 29. 20 Ibid. 21 Julian Hermida, Legal Basis for a National Space Legislation, Kluwer, 2004, pp. 29-32; Valérie Kayser, Commercial Exploitation of Space: Developing Domestic Regulation, Annals of Air and Space Law (17) 1992, p. 190. 22 Ronald L. Spencer, Jr., International Space Law: A Basis for National Regulation in Ram S. Jakhu (ed.) National Regulation of Space Activities, Springer Publication 2010, p. 7. 23 Supra n. 14 at p. 117. 24 F. G. von der Dunk, Private Enterprise and Public Interest in the European Spacescape, Leiden University, Leiden 1998, p. 19; Michael Gerhard, Article VI in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 117; Irmgard Marboe, Setsuko Aoki and Tare Brisibe, 2013 Resolution Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 3, Carl Heymanns, 2015, p. 497; Irmgard Marboe, National Space Legislation in Christian

2.1 Implementation of International Obligations

2.1.2.1

21

Which State Is Obliged to Authorize and Supervise?

Because of the vagueness of the term “appropriate state party”, determination of the State responsible for the activities of non-governmental activities is a prominent discourse in international space law25 but it is commonly accepted that the State having jurisdiction over an activity is the only one that can bear international responsibility.26 From the general aspects of public international law, a State has jurisdiction27 over any activity that is carried on from its territory as well as over any activity that is carried on by its nationals whether natural or juridical persons.28 Apart from territorial and personal jurisdiction over a national activity, international space law29 creates a third kind of jurisdiction—jurisdiction over objects registered in a national registry. Therefore, a State exercising jurisdiction and control over a space object must be considered the appropriate state to authorize and supervise.

2.1.3 Registration of the Space Object “Jurisdiction and control”30 over a space object is retained by the State on whose registry an object is launched into outer space.31 Authors have commented that Brünner & Alexander Soucek (eds.), Outer Space in Society, Politics and Law, 2011 SpringerVerlag/Wien, p. 441; Armel Kerrest, Sharing the Risk of Space Activities: There Questions, Three Solutions, in in Karl–Heinz Böckstiegel (Ed.) Project 2001 – Legal Framework for the Commercial Use of Outer Space, Carl Heyman Verlag 2002, p. 138. 25 Michael Gerhard, Article VI in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 112; F. G. von der Dunk, The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law in Frans G. von der Dunk (Ed.) National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, pp. 9-18; Bin Cheng, Article VI of the 1967 Space Treaty Revisited: “International Responsibility”, “National Activities” and “The Appropriate State”, Journal of Space Law (26) 1998, pp. 26-29; Julian Hermida, Legal Basis for a National Space Legislation, Kluwer, 2004, pp. 40-44; Valérie Kayser, Commercial Exploitation of Space: Developing Domestic Regulation, Annals of Air and Space Law (17) 1992, p. 188; Karl–Heinz Böckstiegel, The Term ‘Appropriate State’ in International Space Law, in IISL Proceedings of the 37th Colloquium of the Law of Outer Space, AIAA, 1995, pp. 77-79. 26 F. G. von der Dunk, Private Enterprise and Public Interest in the European Spacescape, Leiden University, Leiden 1998, p. 19. 27 “State jurisdiction concerns essentially the extent of each state’s right to regulate conduct or the consequences of the event”. – Robert Jennings and Arthur Watts (Eds.), Oppenheim’s International Law, Vol. 1, Longman Publishers, 1992. 28 Ibid. 29 Article VIII OST read with the LIAB. 30 ‘Jurisdiction and control’ must be read as one block. “Jurisdiction should induce control, and control should be based on jurisdiction”; G. Lafferranderie, ‘Jurisdiction and Control of Space objects and the Case of International Inter-governmental Organisation (ESA), German Journal of Air and Space Law, 2005, p. 231. 31 Article II(2) REG read with Article VIII OST.

22

2 Rationale for National Space Legislation

“jurisdiction” means the legislation and enforcement of law and rules in relation to persons and objects.32 “Control” means the exclusive right and the possibility to supervise the activities of a space object and, if applicable, the personnel thereof. The legal consequence of jurisdiction and control is the applicability of the national law of the State of registry for the object launched into outer space, including over any personnel thereof.33 Primarily registration attributes nationality to space objects. The larger objective behind registration is to promote peaceful uses of outer space.34 When a space object is launched into Earth orbit or beyond, the launching state has to register the space object in its national register.35 The State of registry also has an obligation to furnish the Secretary General of the United Nations information36 concerning each space object carried on national register.37 The UN registry being a public document is accessible to all states, which ensures transparency with regard to activities in outer space. Every state is aware that the activities in outer space are in accordance with the OST for peaceful purpose. Article VI of OST establishes that State parties are internationally responsible for the activities of their non-governmental entities. Reading Article VI of OST with an obligation to register, it can be inferred that state parties also owe an obligation to register space objects launched by private entities or companies under their jurisdiction. The binding obligation38 to maintain a national register of space objects paves the

32 Bernhard Schmidt-Tedd and Stephan Mick, Article VIII in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 157. 33 Ibid. at p. 159. 34 Nandasiri Jasentuliyana, International Space Law and the United Nations, Kluwer Law International, 1999, p. 114. 35 Article II(1) REG. 36 As per Article IV of the REG, the State of registry is obliged to be furnish minimally the following information - Name of launching state or States; An appropriate designator of the space object or its registration number; Date and territory of location of launch; Basic orbital parameters (nodal period, inclination, apogee, perigee); General function of the space object; Additional information from time to time as to the current status (including deorbiting) of registered space objects. The 2007 Resolution (UNGAR 62/101 adopted on 17 December 2007) on Recommendations on Enhancing the Practice of States and International Intergovernmental Organizations in Registering Space Objects, recommends for further additional information like in case of change in supervision, the State of registry, in cooperation with appropriate state furnish the date of change in supervision; the new owner/operator; any change of orbital position; any change of function of space object. It also recommends, with regard to harmonization of practices, information could include, coordinated universal time as the time reference for the date of launch; kilometers, minutes and degrees as the standard units for basic orbital parameters; change of status in operation (inter alia, when a space object is no longer functional); approximate date of decay or reentry; date and physical conditions of moving a space object to a disposal orbit; web links to official information on space objects. 37 Article III(1) REG. 38 He Qizhi, The Registration Convention and Maintenance of the Peaceful Uses of Outer Space in Nandasiri Jasentuliyana (Ed.) Maintaining Outer Space for Peaceful uses, The United Nations University, 1984, p. 119.

2.1 Implementation of International Obligations

23

way for national space legislation.39 It shall oblige private players to disclose information necessary for maintaining a national registry,40 which in turn shall enable respective States to communicate to the international register.41

2.1.3.1

Which State Owes the Obligation to Register?

The obligation to register space objects is incumbent upon the “launching State”.42 If there are two or more launching States, then a decision must be made as to which State shall register because there must be an objectivity and finality with regard to jurisdiction and control of space objects.43 In case of more than one State qualifying as launching State, they should choose and jointly decide which one of them is the most appropriate State to register the object.44 There can be more than one state qualifying as launching state for a particular space object, but there can be only one State of registry for each such space object. A single state of registry facilitates the identification of relevant national law that is applicable to the space object in question.45 One major criterion for determining the State of registry should be which one of the launching States should also be the State responsible for the activity in accordance with Article VI of OST.46 Thus, registration creates the linkage between the launching 39 Kay-Uwe Hörl/Kamlesh Gungaphul, Problems related to “Change of Ownership” with Respect to Registration – The Industry View in Stephan Hobe/Bernard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Proceedings of the Project 2001 Plus Workshop on Current Issues in the Registration of Space Objects, 20-21 January 2005, Berlin, pp. 63-70. 40 Bernhard Schmidt-Tedd/Stephan Mick, Article VIII in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 153. 41 Kay-Uwe Hörl/Kamlesh Gungaphul, Problems related to “Change of Ownership” with Respect to Registration – The Industry View in Stephan Hobe/Bernard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Proceedings of the Project 2001 Plus Workshop on Current Issues in the Registration of Space Objects, 20-21 January 2005, Berlin, pp. 63-70. 42 Registration Convention. See Bernhard Schmidt-Tedd/Ulrike Bohlmann/Natalya Malysheva/Olga Stelmakh Commentary on the 1979 Convention on Registration of Objects Launched into Outer Space in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 2, Carl Heymanns, 2013, pp. 227-322. 43 Bernhard Schmidt-Tedd/Michael Gerhard, How to adapt the present regime for registration of space objects to new developments in space law? In IISL Proceedings of the 48th Colloquium on Law of Outer Space, AIAA, 2006, pp. 353-359; Bernhard Schmidt-Tedd/Michael Gerhard, Registration of Space Objects: Which are the Advantages for States Resulting from Registration? In Marietta Benkö/Kai-Uwe Schrogl (eds.) Space Law: Current Problems and Perspectives for Future Regulation, Eleven International Publishing, 2005, pp. 122-123. 44 Article II(2) REG. 45 Bernhard Schmidt-Tedd/Stephan Mick, Article VIII in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 147. 46 Bernhard Schmidt-Tedd/Michael Gerhard, Registration of Space Objects: Which are the Advantages for States Resulting from Registration? In Marietta Benkö/Kai-Uwe Schrogl (eds.) Space

24

2 Rationale for National Space Legislation

State, the space object, international responsibility for space activities and jurisdiction and control by the registering State.47

2.1.3.2

Advantages of Registration of the Space Object

Besides an international obligation to register space objects, benefits resulting from registration of space objects form yet another rationale for national space legislation. Without the first step of national registration, no jurisdiction and control over the space object is feasible.48 “Jurisdiction and control” entitles the State of registry to exercise its sovereignty over its registered space objects49 that in turn offers manyfold benefits. Sovereignty is exercised only over the space object and is not applicable to outer space or celestial bodies. Following are the additional benefits flowing from the registration of space objects.

Complementary in Achieving “Continuing Supervision” of the Space Activity International responsibility of a State extends over non-governmental entities. States are bound to “continuously supervise” the activities of non-governmental entities.50 It is but obvious that the duty of continuous supervision can be effectively discharged if the states exercise “jurisdiction and control” over their space objects because the legal consequence of “jurisdiction and control” is the applicability of the national law of the State of registry for the objects launched into outer space, including any personnel thereof.51 Viikari has expressed that jurisdiction and control is the baseline for ensuring the fulfilment of international responsibilities under Article VI of the OST.52 Registration of space objects gives substantial, however indirect, orientation towards achieving effective supervision. It is complementary to continuing supervision of a non-governmental activity.

Law: Current Problems and Perspectives for Future Regulation, Eleven International Publishing, 2005, p. 124. 47 Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009. 48 Ibid. at p. 152. 49 Ibid. at p. 156. 50 Article VI OST. 51 Supra n. 45 at p. 159. 52 L E Viikari, ‘The Legal Regime for Moon Resource Utilization and Comparable Solutions Adopted for Deep Seabed Activities’ (2003) 31(1) Advances in Space Research 2427, 2428.

2.1 Implementation of International Obligations

25

The Safety Valve to Check Unauthorized Space Activity Private space activities are always derived from state responsibility and are subjected to authorization and continuing supervision.53 It is quite possible that a private entity takes up an unauthorized space activity from the very beginning or subsequently after seeking an authorization. In such circumstances: what should the “appropriate state” do to fulfil its “international responsibility”? States can always take over such unauthorized space activity. Jurisdiction and control is always related to states and not to private entities.54 Private players are not the subject of the Registration Convention. Thus, a State does not need to do anything extra to take over the unauthorized activity(s) if required, because by virtue of registration, States retain jurisdiction and control over private space objects. It might appear that the situation favours the State but private entities are equally benefited. It is a win-win situation for both private space participants and the authorizing state. Private entities need not fear a takeover by the State because the takeover may happen only when the conditions of authorization are being violated; in other words, if private players want to enjoy the benefits of access to space, the conditions of authorization are to be strictly adhered to. It promotes predictability and transparency of the procedure, eliminating the possibility of arbitrariness, building confidence in private players to make investments in space, and on the other hand, it helps in capacity enhancement of the State towards the discharge of its international responsibility of continuing supervision of nongovernmental activities. Since there is no room for private space activities in isolation from any governmental responsibility,55 the registration of space objects shall act as a safety valve to check any unauthorized space activity.

Other Benefits Jurisdiction and control entails an important role in the definition of domains like patents, intellectual property rights, data policy (access and use), civil and criminal jurisdiction, the status of persons and goods, commercial and private activities, etc.56 Registration of space objects entails recognition and protection of rights of states.57 Further discussion has been made on value-added benefits later in this chapter under the heading auxiliary considerations.

53 Supra

n. 43. at pp. 122-123. 55 Gabriel Lafferranderie, Jurisdiction and Control of Space Objects and the Case of an International Intergovernmental Organization (ESA), German Journal of Air and Space Law (ZLW), 2005, pp. 228-229. 56 Ibid. at 231. 57 Ibid. 54 Ibid.

26

2 Rationale for National Space Legislation

Evidence in Case of Damage Suffered by a Space Object Damage caused by space objects is imputed to the launching States.58 The State, which is the direct victim, or the State of the victim, has to put forth its claim for damages before the launching State.59 In such case, the primary task for the claimant State shall be to prove that the defendant is indeed a “launching State”. Registration of space objects is a primary, but not exclusive, indication of the launching State status.60

2.2 Protection of Financial Interests of the State National space legislation is needed not only to fulfil international obligations, in particular Article VI (2) of OST, but also to protect a State’s financial risk when being held liable for private activities as the “launching State”.61 Article VII of the OST imputes liability upon the “launching State” for damages resulting from all launch activities, irrespective of whether public or private.62

2.2.1 The Concept of “Launching State” Various categories of a State may qualify as a “launching State”. Article VII of the OST specifies four categories of launching State63 —firstly, the State that launches; secondly, the State that procures the launching; thirdly, the State from whose territory the launch takes place; and fourthly, the State from whose facility the launch takes place. The first two categories are action and decision-oriented related to the State behind the actor without whom the responsible actor would not have been in space, whereas the last two categories are in contrast object-/territorial-based related to the nationality of the launch site/facility.64 The four categories, all in non-hierarchical order, attempt to cover situations where there is no responsible launching State behind a specific space object.65 It is not disputed that with developments in technology and

58 Article

VII OST read with LIAB. VIII LIAB. 60 Armel Kerrest/Lesley Jane Smith, Article VII in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 139. 61 Michael Gerhard and Kai-Uwe Schrogl, Report of the Project 2001 Working Group on National Space Legislation in Karl –Heinz Böckstiegel (Ed.) Project 2001 – Legal Framework for the Commercial Use of Outer Space, Carl Heyman Verlag 2002, p. 556. 62 Carl Q. Christol, International Liability for Damage Caused by Space Objects, American Journal of International Law, 1980 p. 354. 63 Similar criteria has been adopted by the Registration Convention and the Liability Convention. 64 Schmidt Tedd, Article I of the 1975 Convention on Registration of Objects Launched into Outer Space in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 2, Carl Heymanns, 2013, p. 246. 65 Ibid. at p. 247. 59 Article

2.2 Protection of Financial Interests of the State

27

increase in international cooperation in launch services, particularly for commercial space activities, the definition of a launching State might need modification.66 Of the prescribed four categories of launching State, three are of simple nature and self-explanatory but “procurement of launch” creates a wide arena giving room for interpretation.67 Procurement is not restricted merely to activities where a state has a direct control over space activities, say, authorization of private space activities, but also includes where the state has a possibility to control the activity.68 A possibility to control the act of launching may be when the state either controls the launch service provider or controls the operator of the payload or both.69 Authors have commented that the term “procure” relates to the order or contract for the launch of a space object by a State.70 Therefore, all commercial/non-commercial launches which a State undertakes/procures/authorizes for its foreign customer or domestic private player may make them internationally liable if a damage results at any point of time.

2.2.2 Imputation of Liability upon the Launching State As early as the 1963 Declaration,71 the 1967 Treaty72 and the 1972 Convention73 have imputed liability to the State that launches or procures the launch or furnishes 66 Armel Kerrest/Lesley Jane Smith, Article VII in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 137. 67 Frans G. von der Dunk, The Origins of Authorization: Article VI of the Outer Space Treaty and International Space Law in Frans G. von der Dunk (ed.) National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011 pp. 21-24; Bernard Schmitt-Tedd/Stephan Mick Commentary on Article VIII in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 499; Marietta Benkö/Kai-Uwe Schrogl, The UN Committee on the Peaceful uses of Outer Space: Adoption of a Resolution on the Concept of the “launching State” and other Recent Developments, German Journal of Air and Space Law (54) 2005, pp. 57-67; Armel Kerrest, Remarks on the Notion of Launching State in IISL Proceedings of the 42nd Colloquium on the Law of Outer Space, AIAA, 2000, p. 308; Karl –Heinz Böckstiegel, The Term ‘Launching State’ in International Space Law, in IISL, Proceedings of the 37th Colloquium on the Law of Outer Space, AIAA, 1995, pp. 80-83; Also see UN Doc.A/AC.105/21, Report of the legal Sub-Committee on the Work of the Second Part of its Third Session 5-23 October, 1964. 68 Gerhard, Michael. 2008. The State of the Art and Recent Trends in the Development of National 146 Space Law. In National Space Law: Development in Europe—Challenges for Small Countries, 147 ed. Christian Brünner and Edith Walter, 58–72. Vienna: Böhlau Verlag p. 68. 69 Ibid. at p. 70. 70 Lesley Jane Smith/Armel Kerrest, Article I of the 1972 Convention on International Liability for Damage Caused by Space Objects in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 2, Carl Heymanns, 2013, p. 114. 71 Principle 8 of the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space adopted by the General Assembly in its resolution 1962 (XVIII) of 13 December 1963. 72 Article VII of 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. 73 The 1972 Convention on International Liability for Damage Caused by Space Objects.

28

2 Rationale for National Space Legislation

the facilities or the territory.74 The issue is of such prime relevance that UNCOPUOS came up with a 2004 resolution75 on the concept of launching state. Space activities being inherently dangerous, “state liability” is the legal consequence of “state responsibility” for launching of space objects, with a corresponding duty to compensate for damage caused.76 The liability is imputed upon the states for securing a reliable liability regime to respond to the ultra-hazardous space activities77 guaranteeing efficient protection to the potential victims resting on sands of time. Considering the enormous risk involved and the unpredictable time duration for any space activity, the State is much more stable, reliable and solvent than any other operator.78 For the sake of convenience of proof, liability is specifically upon the launching State. Generally, no space object could be launched into outer space without a launching State. Conversely, every space object will qualify at least one launching State.79 Thus with every launch, there will be at least one identifiable launching State who can be held responsible to compensate the victims who suffer from damage caused by space objects.80

2.2.2.1

Extent of the Liability

A launching State is absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.81 The liability being objective in nature, no fault needs to be proven if the damage takes place on the surface of the Earth or to an aircraft in flight. The liability is without a ceiling82 so as to enable full reparation of the loss suffered by the victim.83

74 Armel Kerrest, Liability for Damage caused by Space Activities, in Marietta Benkö/Kai-Uwe Schrogl (eds.) Space Law: Current Problems and Perspectives for Future Regulation, Eleven International Publishing, 2005, p. 91, 92. 75 The 2004 UNGA Resolution (59/115) on the Application of the Concept of the ‘launching State’. 76 Bin Cheng, International Responsibility and Liability for Launch Activities, 1995 XX Air & Space Law 297, 300. 77 Armel Kerrest/Lesley Jane Smith, Article VII in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 129. 78 Supra n. 74 at p. 93. 79 Supra n. 77 at p. 136. 80 Ibid. at p. 130. 81 Article II LIAB. 82 Armel Kerrest, Sharing the Risk of Space Activities: Three Questions, Three Solutions in KarlHeinz Böckstiegel (ed.) Project 2001 – Legal Framework for the Commercial Use of Outer Space, Carl Heyman Verlag, 2002, p. 136. 83 Lesley Jane Smith/Armel Kerrest Commentary on Article II of the 1972 Convention on International Liability for Damage Caused by Space Objects in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 2, Carl Heymanns, 2013, p. 125.

2.2 Protection of Financial Interests of the State

29

Space activities being ultra-hazardous in nature, the launching State cannot exonerate itself from absolute liability principle. The only exception is in cases where there is gross negligence or a wilful act of intent to cause damage on the part of the claimant State.84 No exoneration is permitted where the damage has resulted from an activity that is not in conformity with international law.85 Generally, a State will not deliberately take up an activity in breach of its international obligations but a State is likely to face this situation if it does not authorize or/and supervise activity(s) of its private players. The absolute liability rule is applicable only to damages caused on Earth or airspace. For damages caused in outer space, liability is determined on a fault basis.86 If a space object of one State causes damage to a space object of another State, for a successful claim, the latter shall have to prove that damage resulted because of fault of the former. Failure to adhere to, or breach of, an obligation imposed by law may amount to a presumption of fault.87 States shall need to take greater care while promoting their private players because it will be easy to prove fault on the part of the Victim State if the activities of private entities that have resulted in damage are in breach of international obligations.

2.2.2.2

Liability in Case of Joint Launches

It is quite probable in view of commercial and cooperative space activities that more than one State may qualify to be a launching State. In order to protect the victim better, all the states qualifying as launching States are jointly and severally liable.88 The State of the victim may, for one reason or another, choose to sue either one launching State or some launching States or all of the launching States. For apportionment of the quantum of liability, it will be in the interest of the launching States to have prior agreements, preferably under the garb of the defined legal landscape, as to their respective share of liability if there is a claim for damage(s).89 It is a legitimate expectation on the part of the State that provides mere facilities for launch without having any future interest to exercise further control on launched space objects to reserve its share of financial liability to nullity. Nevertheless, such State will always qualify internationally as a “launching state” and can be held liable for 84 Article

VI LIAB para 1. VI LIAB para 2. 86 Article III LIAB. 87 Lesley Jane Smith/Armel Kerrest Commentary on Article III of the 1972 Convention on International Liability for Damage Caused by Space Objects in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 2, Carl Heymanns, 2013, p. 132. 88 Article V LIAB. 89 Supra n. 74 at p. 95. Even the 2004 UN Resolution (UNGAR 59/115) on the Application of the Concept of the ‘Launching State’ recommends for prior agreements in cases of joint launches or cooperative programmes. 85 Article

30

2 Rationale for National Space Legislation

future damages, but an internal agreement exonerating itself from all future liability is legitimately achievable through domestic laws.90

2.2.3 Liability of Private Actors The liability for damage resulting from a space activity is reposed upon the State. Private actors enjoy the benefit of the freedom of exploration of outer space, whereas the liability vests upon the launching State. Liability is imposed upon the launching State for the reason that the respective launching State benefited from the launch undertaking.91 Private actors do not owe any financial liability towards any private entity or States, including the State of authorization. They only enjoy the freedom of access to space placing international responsibility upon the shoulders of the respective State under whose jurisdiction they operate. Though international space law does not make them in any way liable before the global forum, nothing precludes the State to make them liable before their domestic fora. Even the international space law favours States in prescribing conditions of their participation.92 International responsibility for private space activities is thus a strong incentive for States to enact national space legislation.93 Some States94 have excluded their liability for launches taken by a private company. They do not consider themselves as the launching State when private company(s) take/s launch. It is a settled principle that a launching State has to register their space objects. If a State evades its responsibility for private launches, those space objects will have neither a State of registry nor a launching State, which is contrary to the object of international space treaties. Secondly, Article VI of the OST makes the State internationally responsible for all national activities, including private activities, leaving no room to evade responsibility. Therefore, national space legislation must be used as an enabler of space commerce and not as a tool to circumvent any international obligations.

90 Bernhard Schmidt-Tedd/Ulrike Bohlmann/Natalya Malysheva/Olga Stelmakh Commentary on the 1979 Convention on Registration of Objects Launched into Outer Space in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 2, Carl Heymanns, 2013, p. 246. 91 Lesley Jane Smith/Armel Kerrest Commentary on Article I of the 1972 Convention on International Liability for Damage Caused by Space Objects in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 2, Carl Heymanns, 2013, p. 115. 92 See Article VI OST. 93 Irmgard Marboe and Setsuko Aoki, Commentary on 2013 Resolution Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 3, Carl Heymanns, 2015, p. 496. 94 See National Space Act of The Netherlands and Belgium.

2.2 Protection of Financial Interests of the State

2.2.3.1

31

Recourse Against International Liability for Damage Caused by Private Actors: Indemnification and Insurance

It is inevitable for a State that is likely to fall under the category of “launching State” to enact national space legislation; otherwise, they can easily be held responsible in case of damage caused by a private activity.95 National space legislation in no way can alter the State’s international liability,96 but it can provide a mechanism to transfer the liability upon private players.97 It can prescribe a mechanism of recourse against private actors if a State has to pay for damage caused by them.98 It can lay down the prerequisites and conditions upon which this right of recourse may be exercised by the State.99 If a State has to pay for damages resulting from its private space activity, national space legislation can prescribe for indemnification from the actor on whose behalf the State has paid. It will depend upon the respective State’s space policy as to the quantum of amount of indemnification. They may reserve absolute indemnification or apportion a cap on the liability of private actors beyond which the State may take liability. The latter method is conducive to the growth of private actors.100 Since liability for damages caused by a space object is oriented towards future “unlimited in time, amount and location”,101 it is likely when actual damage occurs the authorized private operators may not have sufficient financial means to pay or might have become bankrupt. To ensure that the victim is not left without remedy, the OST imposes liability upon the State and not upon private entities.102 In such a situation, the respective State shall have to bear the financial burden himself/herself and the mechanism of indemnification may not be of much help. As an authorization condition, the State must in addition to indemnification prescribe compulsory insurance, depending upon the probable risk associated with a particular space activity. Levying insurance conditions as a mere formality might be counterproductive because if claims are frequent insurance companies might be

95 Stephan Hobe, Space law – An Analysis of its Development and its Future in Christian Brünner & Alexander Soucek (eds.), Outer Space in Society, Politics and Law, 2011 Springer-Verlag/Wien, p. 482. 96 Irmgard Marboe, National Space Legislation in Christian Brünner & Alexander Soucek (eds.), Outer Space in Society, Politics and Law, 2011 Springer-Verlag/Wien, pp. 439-463, 443. 97 Armel Kerrest, Remarks on the Responsibility and Liability for Damages Caused by Private Activity in Outer Space in IISL Proceedings of the 40th Colloquium on the Law of Outer Space, AIAA, 1997, p. 136. 98 Supra n. 96. 99 Ibid. 100 Stephan Hobe, The ILA Model Law for National Space Legislation in German Journal of Air and Space Law, 62 ZLW Jg. 1/2013 p. 93. 101 Armel Kerrest/Lesley Jane Smith, Article VII in Stephan Hobe/Bernhard Schmidt-Tedd/KaiUwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 130. 102 John M. Kelson, State Responsibility and the Abnormally Dangerous Activity, Harvard International Law Journal, Vol. 13, 1972, pp. 197-244 at p. 216.

32

2 Rationale for National Space Legislation

reluctant to enter this risky money-siphoning business. The success of insurance companies lies in minimum claims being brought which is possible if States diligently exercise their duty of “authorization and supervision”. It is foreseeable that a failure of the insurance market might lead to a failure of private investment in space that might result in a failure of a space programme. Private space players are alternatives to cost-driven space programmes. Opening doors to outer space for them without proper legislation might be a fatal step. On the one hand, they need incentives to enter in this risky endeavour; on the other hand, the State needs to shield itself from increased international responsibility and liability by their participation. National space legislation can be an effective tool in maintaining the balance.

2.2.3.2

Boundaries of Outer Space

The Liability Convention read with Article VII of the OST provides for a close corollary with Article VI of the OST where a State has a strict obligation to authorize and continuously supervise the activities of its non-governmental activities in outer space. But, where does outer space begin? The area at 110 km above sea level is presumed to be part of outer space, but the status of zone between 80 and 100 km is highly controversial.103 Since the liability regime for airspace and outer space is distinct, it is very important that the boundary of airspace and outer space be defined. Suborbital flights, space shuttle, prospective space tourism further raise this question as to which legal regime—air law/space law—is applicable to them. These activities are intended to be carried out in outer space, but they also traverse through airspace. The issue has been on the agenda of UNCOPUOS104 since its early days but till date there is no finality.105 Not many of the national space legislations other than Australia, Kazakhstan and Denmark have made an attempt on the issue.106 Space-faring nations that are in the process of drafting their respective national space legislations have an opportunity to take a lead on this issue, which might lead to a 103 Stephan

Hobe, Commentary on Article I in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 31. 104 L. Perek, Scientific Criteria for the Delimitation of Outer Space, Journal of Space Law, Vol. 5 1977, pp. 111-124. V. Kopal, The Question of Defining Outer Space, Journal of Space Law, Vol. 8 1980 pp. 154-173; He Qizhi, The Problem of Definition and Delimitation in Outer Space, Journal of Space Law, Vol. 10, 1982, pp. 157-163. 105 Many theories have been put forward to address the issue of delimitation of airspace and outer space., see See I. H. P. Diederiks-Verschoor/V. Kopal, An Introduction to Space Law, Wolters Kluwer, 2008, pp. 15-22. Working Group on the Definition and Delimitation of Outer Space of the Legal Subcommittee of UNCOPUOS is still struggling to build consensus among States. 106 The 1993 South Africa Space Affair’s Act has impliedly defined outer space as the area beyond 100 km and above. “Space above the surface of the Earth at which it is in practice possible to operate an object in an orbit around the Earth”. In similar fashion Indonesia Law on Space Activity define Outer Space means a space including its all material that is beyond the Airspace.

2.2 Protection of Financial Interests of the State

33

customary legal rule.107 Stephan Hobe has commented, “Although national space legislation cannot have a direct influence on international law, it might be regarded as an expression of opinion juris”.108

2.2.4 Transfer of the Ownership and Control of Space Objects In the era of commercialization and privatization of space, on-orbit transfer of space objects from one authorized operator/State to another is quite probable. The transfer may be either within the jurisdiction of the State or from one launching State to another non-launching State. So long as the transfer of a space object is within the State of jurisdiction, it may not be that problematic because the State can still fulfil its obligations under Article VI of OST despite the change of ownership.109 Problems may arise when the transfer is from the State of authorization/launching State to a non-launching State because even though the de facto ownership and control of the space object have moved to the transferee State, the de jure ownership and control still vest with the transferor State by virtue of registration of the space object.110 Since the State of registry can only be the launching State, liability will also vest forever with the transferor state even though it is practically impossible to exercise any control over such transferred space objects. The UN space treaties do not make any provision for transferring the obligations of liability or registration of one launching State to another State.111 It leads to the conclusion that “once a launching State forever a launching State”112 and forever a state of liability. Such a situation is obviously not favourable for the growth of

107 Frans

G. von der Dunk, The Sky is the Limit- But Where Does it End? In IISL Proceedings of the Forty-eighth Colloquium on the Law of Outer Space, AIAA, 2006 pp. 84-94. 108 Stephan Hobe, Commentary on Article 1 in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 195. 109 Michel Gerhard, Transfer of Operation and Control With Respect to Space Objects –Problems of Responsibility and Liability, German Journal of Air and Space Law, 4, 2002 pp. 571-581; Michel Chatzipanagiotis, Registration Space Object and Transfer of Ownership in Orbit, German Journal of Air and Space Law, 2, 2007 pp. 229-238. 110 Ibid. 111 I. Marboe/S. Aoki Commentary on 2013 Resolution Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 3, Carl Heymanns, 2015, p. 502. 112 Henry Hertzfeld/Frans G. von der Dunk, Bringing Space Law into the Commercial World: Property Rights Without Sovereignty, Chicago Journal of International Law (5) 2005, pp. 8990; also see, Frans G. von der Dunk, The International Law of Outer Space and Consequences at the National Level for India: Towards an Indian National Space Law? In Indian Yearbook of International Law and Policy (2009); Frans G. von der Dunk, The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law in Frans G. von der Dunk (Ed.) National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011.

34

2 Rationale for National Space Legislation

commercial space activities. No State would like to bear liability for an activity over which it does not have control. The solution lies domestically that both the transferor state and transferee state enter into an agreement distributing their rights and obligations vis-à-vis the particular space object whose transfer is in question. Such agreements serve as a mechanism to seek recourse against the transferee State if liability arises, but it in no way absolves the transferor State from its international liability. Considering the possibility of on-orbit transfer of space objects, the UN Resolution on Enhancing Registration of Space Objects113 has recommended the furnishing of information to the UN Secretary General by the State of registry in cooperation with the appropriate State in cases of change of supervision of space objects. National space legislation shall enable the transfer of space objects by asking the parties for prior compulsory agreement and furnishing necessary information to be communicated to the UN.

2.3 Auxiliary Considerations Implementation of international obligations and shielding against international liability for damages caused by space activities are the fundamental reasons to have national space legislation. Supplementary reasons to legislate are discussed below.

2.3.1 Environmental Aspects The environment of outer space has been considered to be fragile.114 Activities in outer space are per se ultra-hazardous activities, possessing significant risk of harm to both space and terrestrial environment.115 The vulnerability of space may increase by having a number of space objects (functional as well as non-functional) in a particular orbit, by gaseous emissions, by release of harmful radiation from nuclear power sources, by transmission of energy to Earth via solar power satellites through use of microwaves or laser beams, by the presence of non-functional space objects scientifically termed as “space debris”.116 With reference to space activities, it is to be recalled here that the exploration and use of outer space are to be carried out in accordance with international law including the UN Charter.117 “…The obligation to conform with the Charter … implies not only 113 The

2007 Resolution (UNGA Res. 62/101) on Recommendations on Enhancing the practice of States and International Intergovernmental Organizations in Registering Space Objects. 114 See Mark Williamson, Space: The Fragile Frontier, 2006, AIAA. 115 Sergio Marchisio, Commentary on Article IX OST in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 176. 116 Preliminary observation of Stephan Gorove, Environmental Risks Arising from Space Activities: Focus on the Liability Convention, Institute of Air and Space Law, WRXVIII S-17. 117 Article III OST.

2.3 Auxiliary Considerations

35

the provisions of international law as defined by it but also those that have grown as a result of the further development of the United Nations and subjected to new and more up-to-date interpretation”.118 It is inferred that a substantive part of international law applies to outer space. Thus, rules of international environmental law also are part of space law.119 It is the duty of States to ensure that no harm is caused to the environment of other states or “areas beyond the limits of national jurisdiction”.120 This principle has been recognized as part of international law relating to the environment.121 Outer space being a territory beyond national jurisdiction, states do have an obligation that their respective space activities do not cause harm to the environment of outer space. More specifically, Article IX of OST is popularly seen as the basis for the environmental protection of outer space.122 “Harmful contamination” of outer space and adverse changes in the environment of the Earth resulting from introduction of extraterrestrial matter is to be avoided, and where necessary, States must adopt “appropriate measures” for this purpose.123 It implies that “any contamination that has the possibility of causing harm to a State’s experiments or programmes is to be avoided”.124 Generally, space debris and nuclear pollutants are the main forms of harmful contamination in outer space. Space debris has been recognized as a problem for current and future uses of outer space as its presence in outer space increases the chances of collision of space objects which in turn further increases the vulnerability of outer space.125 Though Article IX demands adoption of appropriate measures for avoidance of harm, it does not specify which measure would in fact be appropriate.126 The necessity of national space legislation for environmental protection emanates here, whereby it can prescribe rules of public safety and national security.127 As an authorization 118 Manfred

Lachs, The Law of the Outer Space: An Experience in Contemporary Law Making, Martinus Nijhoff Publishers, 2010. 119 The relevant international treaties related to space activities are the 1963 Partial Test Ban Treaty; the 1976 Convention on the Prohibition of Military or Any other Hostile Use of Environmental Modification Techniques; the 1986 Convention on Early Notification of a Nuclear Accident or Radiological Emergency; the 1985 Vienna Convention for the Protection of the Ozone Layer. 120 Principle 21 of the Declaration of the United Nations Conference on the Human Environment of 16 June, 1972; Principle 2 of the 1992 Rio Declaration on Environment and Development. For detailed study of International Environmental Law applicable to space activities see Lotta Viikari, The Environment Element in Space Law, Martinus Nijhoff Publishers, 2008. 121 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 1996 ICJ Rep 226. 122 Sergio Marchisio, Commentary on Article IX OST in Stephan Hobe/Bernhard SchmidtTedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009. 123 Article IX sentence 2. 124 D A Cypse, International Law & Policy of Extraterrestrial Planetary Protection, 1993, 33 Jurimetrics – Journal of Law, Science and Technology, p. 324. 125 Joseph N. Pelton, Space Debris and Other Threats from Outer Space, Springer, 2013. 126 G M Goh and B Kazeminejad, Mars through the looking glass: an interdisciplinary analysis of forward and backward contamination, 2004, Space Policy, p. 219. 127 Michael Gerhard and Kai-Uwe Schrogl, Report of the Project 2001 Working Group on National Space Legislation in Karl –Heinz Böckstiegel (Ed.) Project 2001 – Legal Framework for the Commercial Use of Outer Space, Carl Heyman Verlag 2002, p. 537.

36

2 Rationale for National Space Legislation

condition, the State can prescribe technical standards, measures for avoidance and mitigation of debris. Environmental impact assessment (EIA) has been considered a well-worthy tool to measure the environmental hazards arising from space activities.128 National space legislation of some space-faring nations129 does prescribe EIA for launch as well as re-entry of space objects. Many states130 have also issued or are currently developing debris mitigation guidelines. “Principles Relevant to the Nuclear Power Sources in Outer Space” (NPS)131 requires that a “launching state”132 must ensure that “a comprehensive assessment” is conducted prior to the launch of a space object using nuclear power sources. Where relevant, this assessment should be done in cooperation with those who have designed, constructed or manufactured the nuclear power source, or will operate the space object or from whose territory or facility such an object will be launched.133 States owe an obligation to give “due regard to the corresponding interest of all other states” while undertaking any space activity.134 “Due regard” principle demands certain standard of care, attention or observance while undertaking any activity.135 “The State must prove beyond a reasonable doubt that everything possible was undertaken to prevent a harmful act from occurring”.136 Thus, national space legislation can deal with the prevention of risk of contamination of outer space and changes in the environment of the Earth resulting from the extraterrestrial matter.137

2.3.2 Protection and Preservation of Space Assets With new financial mechanisms138 being developed, the capital flow in space ventures is likely to increase. Many more commercial enterprises and foreign nations 128 Lotta

Viikari, The Environment Element in Space Law, Martinus Nijhoff Publishers, 2008, pp. 273-285. 129 Belgium, UK. 130 Russian Federation, Japan, France, Italy all have their own space debris mitigation guidelines. Even the UN COPUOS has adopted Space Debris Mitigation Guidelines (2007 UNGA Res. 62/217). 131 UNGA Res 47/68 of 1992. 132 The State having jurisdiction and control over space object. 133 Principle 4 para 1NPS. 134 Article IX sentence 1 of OST. 135 Supra n. 122 at p. 175. 136 Ibid. at p. 176. 137 Supra n. 127 at p. 537. 138 See 2012, Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets has been adopted to finance accessible industry searching for start-up capital for space-based services. The Protocol was adopted at the Diplomatic Conference held at Berlin 27 February - 9 March 2012 under the auspices of the International Institute for the Unification of Private Law (UNIDROIT). Twenty-five states including India signed the protocol at the closing ceremony of the conference. For further analysis of the protocol see, Mark J. Sundahl, The Cape

2.3 Auxiliary Considerations

37

shall acquire the ability to access space. The possibility of mining resources139 from celestial bodies in the near future is likely to escalate stations, installations, equipment and space vehicles on the surface of celestial bodies. With increasing commercialization and privatization, it is inevitable that the investors as well as the beneficiary of space assets140 would expect that their space assets be protected and remain unharmed by other participants. They would like to protect it for future use or for posterity.141 The protection of space assets shall be much more desirable with the commencement of mining activities on celestial bodies because space assets when located on the lunar surface and celestial bodies are generally in open access.142 Representatives of other State parties can visit them with prior consent.143 A State can refuse another State access to its installations only if the latter does not allow similar visit to its facilities.144 Since a State has sovereign control145 over its space assets, it can develop rules for the conservation and protection of its space assets. Article XII of the OST grants access to space assets on prior advance notice and consultations, but it does not prescribe the procedure details, for access. National space legislation could be of significance here. It may prescribe the procedure for access, the technical measures to be fulfilled during such visits to ensure issues of safety and security of space assets.146

Town Convention-Its Application to Space Assets and Relation to the Law of Outer Space, Martinus Nijhoff Publishers, 2013. 139 On 25 November 2015, the President of the United States signed the Space Resource Exploration and Utilization Act of 2015(H.R. 2262) [part of Space Launch Competitiveness Act]. The Act encourages commercial mining from asteroids resources or space resources giving US Citizen the right to possess, own, transport, use and sell the resources obtained. 140 Article 1(2)(k) of the UNIDROIT’s Space Asset Protocol 2012 - “Space asset means any manmade uniquely identifiable asset in space or designed to be launched into space, and comprising (i) a spacecraft, such as a satellite, space station, space module, space capsule, space vehicle or reusable launch vehicle, whether or not including a space asset falling within (ii) or (iii) below; (ii) a payload (whether telecommunications, navigation, observation, scientific or otherwise) in respect of which a separate registration may be effected in accordance with the regulations; or (iii) a part of a spacecraft or payload such as a transponder, in respect of which a separate registration may be effected in accordance with the regulations, together with all installed, incorporated or attached accessories, parts and equipment and all data, manuals and records relating thereto.” 141 See Apollo Lunar Landing Legacy Bill (H.R 2617). This bill was introduced on July 8, 2013, in the 113th US Congress (2013-15), but was not enacted. 142 See Lesley Jane Smith commentary on Article XII in Stephan Hobe/Bernhard Schmidt-Tedd/KaiUwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 210. 143 Article XII OST. 144 Bin Cheng, The 1967 Outer Space Treaty 95 Journal du Droit International 1968, 1968; also see Lesley Jane Smith commentary on Article XII in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 211. 145 Ownership of objects launched into outer space remains unaltered by their presence in outer space or on celestial bodies or on return to the Earth –Article VIII OST. 146 Supra n. 142 at p. 213.

38

2 Rationale for National Space Legislation

2.3.3 Return of Space Objects and Rescue of Astronauts A State on whose registry an object launched into outer space is carried retains jurisdiction and control over such objects and over any personnel thereof.147 The ownership of objects launched/landed is unaffected by their presence in outer space or on a celestial body or by their return to the Earth.148 At the same time, the respective State has a right as per Article VIII sentence 3 of OST and the Rescue Agreement149 that it is returned to them in case such objects or personnel are found beyond their territory. Nevertheless, the launching State has to furnish identifying data on the object prior to its request for return.150 States making claim for return of their national151 space objects faced with the situation of return will be able to recover them easily if such space objects are registered in their national registry as per the Registration Convention enabling them to generate sufficient proof of claim. As discussed earlier, the obligation to register space objects is upon the States and not private actors; therefore, a sizable amount of evidence can always be produced with regard to the claim of such space object.

2.3.4 Space Applications (Telecommunication, Remote Sensing, Navigation, Mining, Etc.) and IP Rights 2.3.4.1

Space Applications

Telecommunication, remote sensing, navigation, etc., are the widely popular space applications. Each of these activities is unique in nature having its own distinct legal requirement.152 States may reserve a place in their national space legislation giving room for further detailed theme-based laws/implementing decree/rules. Inclusion of the entire detailed provisions within one piece of legislation may not be possible for

147 Article

VIII OST, Sentence 1. VIII OST, Sentence 2. 149 The 1968, Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. 150 Article VIII OST, Sentence 3. 151 Governmental as well non-governmental. 152 Legal requirements of respective space application are distinct. Their specific legal requirements have not been discussed in this work as it is beyond the scope of the work. Each of the activity is in itself a separate branch of study, which can be taken up for further research study. For an overview of the legal requirements of respective space application refer Frans von der Dunk & Fabio Tronchetti (eds.) Handbook of Space Law Edward Elgar Publishing 2015. 148 Article

2.3 Auxiliary Considerations

39

aforesaid reason, but national space legislation shall open the gate for future development of harmonized thematic laws depending upon the kind of space application which a State is making use of or aspiring to use. India is active in satellite-based telecommunication, remote sensing and navigation, wherein there is ample scope for legal probing.

2.3.4.2

Intellectual Property Rights

Closely related to space-based applications is the issue of protection of intellectual property. Private entities are increasingly interested in space investment and research153 because natural micro-gravity in outer space is conducive to scientific research and invention.154 In the age of commercialization, the value of intellectual property rights is not a secret. With no appropriate intellectual property regime in place, private players might be reluctant to invest.155 Questions of data protection and ownership of inventions in space must be seriously considered.156 It will be in the interest of states as well as investors that the jurisprudence of intellectual property rights is extended to outer space as well.157 Since Article VIII of the OST enables the State of registry158 to exercise jurisdiction and control over its space objects, it will not be difficult for the State of registry to assert its intellectual property rights relating to data protection and inventions in outer space.159

153 Dan L. Burk, Protection of Trade Secrets in Outer Space Activity, A Study in Federal Pre-emption

in 23 Seton Hall Law Review, 1993, pp. 561-639; 563. section, Space as Laboratory in B. Feuerbacher/H. Stoewer (Eds.) Utilization of Space – Today and Tomorrow, Springer, 2006, pp. 175-370. 155 Yun Zhao, Protection of Intellectual Property Rights in Outer Space in IISL proceedings of the forty-ninth Colloquium on the Law of Outer Space, AIAA, p. 160. 156 Albert Tramposch, Importance of Intellectual Property Rights for the Protection of Inventions in Relation to Space Activities in Proceedings of the 1st ECSL/Spanish Centre for Space Law Workshop in Intellectual Property Rights in Outer Space, Madrid, May 26, 1993, pp. 15-24, 21. 157 Tomoko Miyamoto, Space-related Aspects of Intellectual Property: WIPO’s Role and Activity, Proceedings of 3rd ECSL Colloquium on International Organization’s and Space Law, Perugia, 6-7 May, 1999, pp. 103-107. 158 Obligation of registration is upon the launching state. 159 Gabriel Lafferranderie, Jurisdiction and Control of Space Objects and the case of an Inter Governmental Organization (ESA) in German Journal of Air and Space Law, vol. 54, 2005, pp. 228-240; Lesley Jane Smith/Catherine Doldirina Intellectual Property Issue in the Use and Distribution of Remote Sensing Data in Lesley Jane Smith/Ingo Baumann (eds.) Contracting for Space, Ashgate, 2011, p. 338; Leo B. Malagar/Marlo Apalisok Magdoza-Malagar, International Law of Outer Space and the Protection of Intellectual Property Rights, 17 Boston University Law Journal, 1999, pp. 312364. Also see Edith Walter, The Privatization and Commercialization of Outer Space in Christian Brünner & Alexander Soucek (eds.), Outer Space in Society, Politics and Law, 2011 SpringerVerlag/Wien, p. 511; also see Karl–Heinz Böckstiegel/Paul Michael Krämer/Isabel Polley, Patent Protection for the Operation of Telecommunication Satellite Systems in Outer Space? In German Journal of Air and Space Law, Vol. 47 1998, pp. 3-17. 154 See

40

2 Rationale for National Space Legislation

2.4 Creation of a Viable Ecosystem for Private Space Activities The implementation of the international obligation and the protection of financial interests of states are the fundamental basis for national space legislation complemented by auxiliary considerations. Since private players shall be the direct beneficiaries of this legislation, they constitute an important facet of national space legislation. National space legislation must keep in mind their needs and requirements.160 A potent investor for space business will always prefer to have the rules of the game in black and white. A definite, clearly defined, assessable, transparent legal regime shall help them take an informed decision as to what are the risks and resilience factors of this hefty business. Addressing issues of liability, indemnification and insurance, transfer of the space objects shall act as enabler of space commerce. Incidental issues like financing, technology transfer, taxation matters and others may be given place in the legislation in harmonization with the general commercial laws. Further elaboration of these aspects could be done through implementing decrees. A viable ecosystem conducive to the growth of private space industries shall have its foundation through this legislation. The national space legislation, on the one hand, shall impose restrictions as laid through international treaties, and on the other hand, it shall be the gateway to space.161 It shall ensure a “clear and predictable legal framework with sufficient flexibility and discretion, providing legal certainty, necessary for development and success of private initiative and engagement in outer space”.162

2.5 Conclusion It is largely the trilogy of Articles VI, VII and VIII of the Outer Space Treaty that establishes the fundamental basis for national space legislation; nonetheless, the ancillary considerations cannot be undermined. Despite this, there is no formal requirement for states to have their national space legislation but in order to comply with the obligations laid down in the space treaties and to diligently regulate the participation of private entities, states need national space legislation that address licensing conditions, liability issues, safety and security aspects, supervision mechanism, insurance and indemnification factors.

160 Supra

n. 127 at p. 541.

161 Ibid. 162 Irmgard Marboe, Setsuko Aoki and Tare Brisibe, 2013 Resolution Recommendations on National

Legislation Relevant to the Peaceful Exploration and Use of Outer Space in Stephan Hobe/Bernhard Schmidt-Tedd/Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 3, Carl Heymanns, 2015, p. 503.

2.5 Conclusion

41

National space legislation does not absolve a State from its international liability in any way,163 but it can provide a mechanism to ensure that the risk of damage is decreased. Furthermore, states can establish a right of recourse if they have paid compensation for damage caused by a space object operated by a non-governmental operator. It can lay down the prerequisites and conditions upon which this right of recourse may be exercised. Thus, national space legislation can help a state to fulfil its international obligations better, secure its financial interests, boost space commerce and enable private participation in space activities.

163 Irmgard

Marboe, National Space Legislation in Christian Brünner & Alexander Soucek (eds.), Outer Space in Society, Politics and Law, 2011 Springer-Verlag/Wien, p. 443.

Chapter 3

State Practices Towards National Space Legislation

Necessity for national space legislation is largely in response to the international obligations: international responsibility for national activities, international liability of the launching state(s) for space objects launched by them and registration of such space objects. Very often states have also enacted national space legislation in fulfilment of their own national interests. For example, the Indonesian Space Act of 2013 intends to make Indonesia self-reliant in space technology and also empower its national space agency; the 2005 Canadian Remote Sensing Space System Act exclusively focused on remote sensing; the USA has a very extensive approach ranging for space administration to regulation of commercial launches and other space activities; some other states like Japan,1 Ukraine2 and Kazakhstan3 just prescribed principles and objectives for space activities often termed as “Basic Space Laws”. Broadly, it can be outlined that there are three approaches to national space legislation. Some states start with the institutionalization of their national space agency; some formulate “Basic Space Laws” that connote their national space policy. Often the job of the former includes the implementation of the later, while the later provides the basis for the development of detailed national space legislation.4 The third approach is either a comprehensive law dedicated to a specific space activity or a more concise law prescribing a general system of authorization for all space activities as proposed by the ILA Model Law and the UN recommendations on national space legislation. Often the type of space activities and space policy of respective states determine which approach will be taken by the states. 1 Basic

Space Act No. 43/ 2008. Unofficial translation by Setusko Aoki in Space Law Basic Legal Documents, Eleven Publisher, Volume 5. 2 1996 Ukraine Law on Space Activity. Unofficial translation in Basic Legal Documents Vol. 5, E.VIII.1. 3 2012 No. 528-IV, Law of the Republic of Kazakhstan on Space Activities. Unofficial translation available at http://www.unoosa.org/documents/pdf/spacelaw/national/kazakhstan/528-IV_ 2012-01-06E.pdf. 4 Irmgard Marboe, Nation Space Law in Frans von der Dunk and Fabio Tronchetti (Eds.) Handbook of Space Law, Edward Elgar Publishing, 2015, p. 177. © Springer Nature Singapore Pte Ltd. 2020 K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6_3

43

44

3 State Practices Towards National Space Legislation

National space legislation constitutes an important source of “state practice”, i.e. how states behave in practice.5 In this chapter, a comparative analysis of national space legislations will provide an overview of the dispositions of the twenty selected jurisdictions. The objective of the study is to find out how these states have responded to their international obligations and to figure out the general contours of national space legislation. The comparative study is not intended to reflect upon every minutest details and specifics of the respective legislations but rather the comparative study is done on the following parameters: (a) scope and application of the legislation; (b) implementation of authorization and supervision principle that includes authorizing body, authorizing conditions and procedure and means of achieving continuing supervision; (c) implementation of the registration principle; (d) recourse against liability; (e) transfer of the space object and (f) protection of the environment. These parameters have been identified in the analysis of the various national space legislations and also recommended in various model laws. They ascertain a common minimum approach taken towards regulating space activities conducted by non-governmental entities. Some legislation regulates additional matters also. Any such distinction, which is relevant from the perspective of this study, will be discussed under the heading “other aspects”.

3.1 Scope and Application of the Legislation Article VI of the OST imposes international responsibility on states for their national activities in outer space and for assuring that their respective national activities are carried out in conformity with the provisions set forth in the OST. Obviously, states can regulate those space activities over which they can exercise their jurisdiction. In international law, a State can exercise its jurisdiction either on the basis of territoriality or nationality (both juridical and natural) or both. In space law, a state can also exercise its jurisdiction by virtue of registration of space object.6 While analysing the scope and application of selected national space legislation, this study will focus upon how have respective states extended their jurisdiction over a particular activity undertaken in outer space. Generally, states have extended the scope of their national space legislation to any space activity carried (i) from their territory, i.e. territorial jurisdiction; (ii) from facilities, ships or platforms under their jurisdiction, i.e. quasiterritorial jurisdiction; and (iii) by their nationals outside the territory, i.e. personal jurisdiction. Almost all states exercise their territorial jurisdiction and personal jurisdiction over their national space activities, although often variation in approaches has been experienced. The Austrian Space Act is applicable to space activities carried out on Austrian territory; on board of vessels or airplanes, registered in Austria or by

5 Malcolm 6 Article

N. Shaw, International Law, 4th edition 1997, Cambridge University Press, p. 66. VIII OST.

3.1 Scope and Application of the Legislation

45

Austrian citizen or legal persons seated in Austria.7 A similar approach is followed in Danish,8 French,9 Swedish,10 Indonesian,11 Australia, New Zealand and the US legislation. In the Russian Federation,12 UK,13 Ukraine and14 South Korea,15 space law is generally applicable to all space activities under their jurisdiction. Belgium primarily exercises its territorial jurisdiction.16 Personal jurisdiction is applicable only when an international agreement prescribes it. Irrespective of the location where the Belgium nationals carry out space activities, the scope of Belgium Law may further be widened through an international agreement.17 Likewise, the Netherlands can also exercise personal jurisdiction by Order in the Council to activities that are performed by a Dutch natural or juridical person on or from the territory of a State that is not party to the Outer Space Treaty or on or from a ship or aircraft that falls under the jurisdiction of a State that is not party to the Outer Space Treaty.18 Belgium and the Netherlands have taken a limited approach because they interpret the term “appropriate state” in Article VI of the OST which refers only to those activities over which they can have effective supervision. They argue activities of nationals outside their territory or from a ship, platform not under their jurisdiction do not fall within their scope of national authorization.19 Such an argument is contentious because Article VI of OST does not create any exception. Limiting 7 S.1(1)

Austrian Outer Space Act, 2011; Unofficial Translation to the Explanatory Report of the Austrian Outer Space Act; see Irmgard Marboe, The New Austrian Outer Space Act, 61 German Journal of Air and Space Law 1/2012, p. 44. 8 S. 2 Danish Outer Space Act 2016 – “This Act applies to space activities carried out within the Danish State. Furthermore, this Act applies to space activities carried out outside the Danish state 1) on Danish craft or facilities; or 2) by Danish operators”. 9 Article 1FSOA 2008 - French Space is applicable to any natural or juridical person carrying out a space operation under its responsibility and independently. 10 S.2 Swedish Act on Space Activities 1821:963 (Unofficial Translation) – “Space activities may not be carried on from Swedish territory by any party other than the Swedish State without a licence. Nor may a Swedish natural or juridical person carry on space activities anywhere else without a licence”. 11 Refer Article 34 of the Indonesia Space Act of 2013. 12 Article 1, The Russian Law on Space Activities 1993. 13 UK Outer Space Act, 1986 applies to space activities undertaken outside the territory of UK. Whereas the Space Industry Act, 2018 applies to space activities carried on in the United Kingdom. Refer S.1(1) read with S.1(3) of the Space Industry Act, 2018. 14 Article 10,Ukraine Law on Space Activity 1996. 15 Article 11(1) Space Development Promotion Act, 2005. 16 Irmgard Marboe & Karin Traunmüllerr, Small Satellites and Small States: New Incentives for National Space Legislation in 38 Journal of Space Law 2/ 2012, p. 305. 17 Article 2(2) Belgium Space Law, 2005. 18 S.2(2) Dutch Space Activities Act; Refer Irmgard Marboe & Karin Traunmüllerr, Small Satellites and Small States: New Incentives for National Space Legislation in 38 Journal of Space Law 2/ 2012, p.308; Frans von der Dunk, Regulation of Space Activities in the Netherlands – From Hugo Grotiuos to the High Ground of Outer Space in Ram S. Jakhu (Ed.) National Regulation of Space Activities in the Netherlands, 2010 Springer Publication, p. 237. 19 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 56.

46

3 State Practices Towards National Space Legislation

international responsibility through national space legislation is not a good practice; rather it is postponing the problem to the future. Other than territorial and personal scope, national space legislation also has material scope. Any activity in outer space for which a State bears international responsibility can be and must be brought within the material scope of national space legislation, and all such activities must be carried out in conformity with the provisions of the OST. On the one hand, Article VI of the OST widens the scope of national space legislation, and on the other hand, the very same Article restricts the scope of national space legislation because no activity in outer space can be in conflict with the provisions of the OST. International law including the UN Charter being applicable to all space activities, any activity that is in conflict with the Charter or international law also cannot be within the scope of national space legislation.20 There exists a “global public interest in outer space”.21 An extraterritorial application of prescriptive jurisdiction should not be unfair from the standpoint of those whose interests would be affected and in any case must not be inconsistent with the needs of the international system.22 State’s intending to regulate space resources through national space legislation must realize that outer space, celestial bodies, including their resources is global commons that fall under the jurisdiction of international community and so space resources are not subject to national jurisdiction.23 Since states fundamentally lack jurisdiction to legislate unilaterally, the study of such legislations has been excluded from this research work.24 State practice reveals that material scope of national space legislation usually covers launching, operation, control and at times even return of space objects. Nonetheless, there is a significant variation in approach of national space legislation. In addition, some states have also included specific requirements based on the type of activity. For example, New Zealand and UK have also included high-altitude activities within the scope of their respective national space legislation. The Austrian Space Act is applicable to space activities falling within its jurisdiction, namely launch, operation or control of space object including operation of the launch facility.25 Inclusion of “operation of launch facility” within the Austrian Act gives it an extra dimension in regulating activities at launch facilities.26 Within the meaning of the Austrian Act, “space object” includes an object launched or intended 20 Article

VI OST. S. Jakhu, Legal Issues Relating to the Global Public Interest in Outer Space, in Journal of Space Law, Vol. 32, No. 1 (2006), pp. 31-110. 22 Willis L. M. Reese, Limitations on the Extraterritorial Application of Law in Dalhousie Law Journal, 1978, p. 594. 23 Stephan Hobe and De Man, ‘National Appropriation of Outer Space and State Jurisdiction to Regulate the Exploitation, Exploration and Utilization of Space Resources’ 66 German Journal of Air and Space Law, 3/2017, p. 470. 24 Influenced by the US Space Resources Exploration and Utilization Act of 2015; on 13 July 2017 Luxembourg adopted “Law on the Exploration and Use of Space Resources. Both of these legislations intend to grant ownership rights to its citizen whosoever may exploit space resources. 25 S. 2 Austrian Space Act, 2011. 26 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 143. 21 Ram

3.1 Scope and Application of the Legislation

47

to be launched into outer space including its component.27 The Belgium Law covers the launching of a space object and their “flight operation and guidance” which is defined as “any operation relating to delivery in orbit, the flying conditions, the navigation or the evolution of space object in outer space such as the selection, the control or the correction of its orbit or its trajectory”.28 With the 2013 amendment, the scope of the Belgium Space Law has been extended to non-manoeuvrable small satellites,29 because earlier these non-manoeuvrable satellites did not fall within the given definition of space activities. The amended Act now prescribes that “in the case of a space object whose flight cannot be operated or which cannot be guided once it has been positioned in orbit, the operator is deemed to be the person who has ordered the delivery in orbit of the space object”.30 The new definition of the term “space object” covers “any object launched or intended to be launched, on an orbital trajectory around the Earth or to a destination beyond the earth orbit” (as well as its launching devices and component parts).31 The scope of the Danish Space Act seems to be little ambiguous in scope because in addition to launching, operation and return of the space object, it is also applicable to “other essential activities in this connection”.32 This broadens the scope because incidental ground-based activities may also be included in connection to space activities. Furthermore, space object is defined as “any object, including its component parts, which has been launched into outer space, or which is planned to be launched into outer space, and any device which has been used, or is planned to be used, to launch an object into outer space”.33 The given definition of “space object” includes objects yet to be launched.34 An even broader scope is seen in Swedish and UK approach. They apply their respective national space legislation to “any activity” in outer space including launching, operating or return of space objects.35 However, mere receiving of signals or information in some other form from objects in outer space is not considered to be a space activity.36 In line with Sweden and UK, the 2006 Russian Statute “On 27 S.

2(2) Austrian Space Act 2011. 2 read with Article 3 Belgium Space Law, 2005. 29 Irmgard Marboe, National Space Law in Frans von der Dunk and Fabio Tronchetti (Eds.) Handbook of Space Law, 2015, p. 162. Also refer Irmgard Marboe & Karin Traunmüllerr, Small Satellites and Small States: New Incentives for National Space Legislation in 38 Journal of Space Law 2/ 2012, pp. 289-320. 30 Article 3(2) Belgium Space Law 2005. 31 Article 3(1) Belgium Space Law, 2005. 32 S.4(1) Danish Space Act, 2016. 33 S.4(2) Danish Space Act, 2016 defines space object as “any object, including its component parts, which has been launched into outer space, or which is planned to be launched into outer space, and any device which has been used, or is planned to be used, to launch an object into outer space.” 34 Michael Listner, A Comprehensive First Look at Denmark’s Domestic Space Law, The Space Review, May 31, 2016. 35 S.1 Act on Space Activities, 1982; S.1 of the UK Outer Space Act, 1986 read with S. 1(4) UK Space Industries Act 2018. 36 S.1 Act on Space Activities 1982. 28 Article

48

3 State Practices Towards National Space Legislation

Licensing of Specific Type of Activity” clarifies space activity includes any activity in direct operations to explore and use outer space including manufacturing, preparation for launch or launch of space objects, operation and control of space objects or space facilities, etc.37 The phrase “any activity” gives sufficient room to include future space activities as well that fall outside of the conventional material scope of the legislation without the need for amendment in the legislation, as Belgium and the Netherlands had to do to include small satellites.38 Ukraine intends to cover all space activities by referring space activities merely as “use of outer space”.39 The French Space Operation Act has a traditional approach, but from the given definition of “space operations”40 and “space operator”,41 it is inferred that governmental activities and satellite applications like telecommunications, broadcasting, navigation, etc., with the exception of “satellite observation in respect of which the Act requires a declaration by those who use the data”42 do not fall within the scope of the Act.43 In the Oceania, unlike the title of the Australian Space Activities Act 1998 suggests, its scope is very limited.44 The Act applies exclusively to activities related to launch, namely (a) operation of launch sites in Australia, (b) the procurement of an overseas launch in Australia and (c) the launch and recovery of a space vehicle.45 It

37 Paragraph 3, Russian Licensing Statute, 2006 read with Article 2, Law on Space Activity, 1993. The 1993 Act further illustrates space activity include space researches; remote sensing of the Earth from outer space, including environmental monitoring and meteorology; use of navigation, topographical and geodesic satellite systems; piloted space missions; manufacturing of materials and other products in outer space; other kinds of activity performed with the aid of space technology; creating (including development, manufacture and test), as well as using and transferring of space techniques, space technology, other products and services necessary for carrying out space activity. 38 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 143. 39 Article 1. Ukraine Law on On Space Activity, 1996. 40 Article 1(3) French Space Operation Act 2008 - “Space operations” is defined as “any activity consisting in launching or attempting to launch an object into outer space, or of ensuring the commanding of a space object during its journey in outer space, including the Moon and other celestial bodies, and, if necessary, during its return to Earth.” 41 Article 1(2) French Space Operation Act 2008 - “Space Operator” “means any natural or juridical person carrying out a space operation under its responsibility and independently.” 42 Mireille Coustion, Introduction Space Operation Act 2008 in Space Law Basic Legal Document, E.XVI p. 3. 43 Lucien Rapp, When France Puts its Own Stamp on the Space Law Landscape in 35 Journal of Space Law, 2009, p. 319; republished as Lucien Rapp, When France Puts its Own Stamp on the Space Law Landscape: Comments on Act No. 2008-518 of 3 June 2008 Relative to Space Operations, Air and Space Law Journal, pp. 87-103. 44 Frans G. von der Dunk, Launching from ‘Down Under’ the New Australian Space Activities Act of 1998 in Proceedings of the Forty-Third Colloquium on the Law of Outer Space, 2000, AIAA, p. 136. 45 S.3.3.2 Australian the Space Activities Act 1998. Also refer Vernon Nase, Introduction to the ‘Space Activities Act’ in Basic Legal Documents, Vol. 5, E. VII, p. 1. Eleven International Publishing 2015.

3.1 Scope and Application of the Legislation

49

does not talk regarding operation of a space object. It is foreseeable that failure to diligently operate a satellite might make Australia liable for damages. Alike Australia, even the 2007 Space Liability Act of Korea applies only to launch and not operation of space objects. Realizing the limitation of Australian space legislation, the New Zealand Space Act has extended its scope to operation of space object as well.46 The Indonesian space legislation has taken an extended, elaborate material scope. The 2013 Law on Space Activities of Indonesia governs “space activities”47 that include space science,48 remote sensing,49 the space technology capability,50 launching51 and commercialization of space activities.52 The list is not exhaustive but only an inclusive one. Within its material scope re-entry of the space objects, search and rescue of astronauts is also included.53 Lastly, it is applicable to the exploration and utilization of space conducted in and from the Earth and in the airspace as well as in outer space.54 The 2012 “Law on Space Activities” of Kazakhstan connotes “space activities” as a very very broad concept “aimed at exploration and use of outer space for achieving the scientific, economic, and environmental, defense and commercial purpose”.55 Similarly the Japan’s “Basic Space Law” is very broad in scope as it applies to non-aggressive military usage of space technology within the limits of Japan’s international and constitutional obligations.56 In contrast to the Basic Law, the 2016 Space Act of Japan focus is on commercial space activities and remote sensing. The 1993 Space Affairs Act of South Africa covers the “activities directly contributing to launching of spacecraft and the operation of spacecraft in outer space” or any other “space related activities” defined as “all activities supporting, or sharing mutual technologies with space activities”. While the South Africa Act is not extensive in material scope, but principally it includes at least all activities that may possibly result in the violation of rules contained in the main space treaties.57 The space law in Brazil has focused on the launch and operation of space object,58 and 46 S.17

New Zealand Outer Space and High-altitude Activities Act 2017. 7 Indonesia Law on Space Activities 2013. 48 Article 11 – 14 Indonesia Law on Space Activities 2013. 49 Article 15 – 23 Indonesia Law on Space Activities 2013. 50 Article 24 – 33 Indonesia Law on Space Activities 2013. 51 Article 34 – 36 Indonesia Law on Space Activities 2013. 52 Article 37 Indonesia Law on Space Activities 2013. 53 Article 58 –70 Indonesia Law on Space Activities 2013. 54 Article 1(4) Indonesia Law on Space Activities 2013. 55 Article 1(7) Kazakhstan ‘Law on Space Activities’ 2012. 56 Setsuko Aoki, Introduction to Basic Space Law in Space Law Basic Legal Documents, Eleven Publisher, Volume 5, E.VI – p. 3; Setsuko Aoki; Introduction to the Japanese Basic Space Law of 2008 in German Journal of Air and Space Law, Vol. 57, No. 4 of 2008, pp. 585-589. 57 Von der Dunk, Two New National Space Laws: Russia and South Africa in Proceedings of the Thirty-Eighth Colloquium on the Law of Outer Space 1996 AIAA, p. 253. 58 Administrative Edict No. 27 of June 20th 2001 enclosing “Regulation on Procedures and on Definition of necessary Requirements for the Request, Evaluation, Issuance, Follow-Up and Supervision of Licenses for carrying out Launching Space Activities on Brazilian Territory” available in 47 Article

50

3 State Practices Towards National Space Legislation

in contrast, the Nigerian Act59 and the Canadian Act60 are specifically addressed to remote sensing. The USA has the most elaborated material scope having two strands.61 The one strand of—the National Aeronautics and Space Act of 1958—governs the governmental agency NASA that is in-charge of administering aeronautical and space activities.62 The other strand—the Commercial Space Launch Act of 1984—regulates commercial launch/re-entry of space object, operation of launch sites and services and operation of space objects.63 The preceding paragraph reveals that material scope of national space legislation varies significantly. Some are extremely narrowly focused only on a particular space activity, whereas there is quite a few trying to cover the galaxy. “An important aspect of national space legislation is finding a balance between creating necessary and clear regulations for space activities and having a broad and open provisions that allow for the adaptation of national space legislation to developments in space activities and technologies”.64 Material scope of the legislation is an important factor in achieving this balance; a narrow scope might exclude future space activities, while a broad scope might unnecessarily complicate the regulation of the activities.65 The approach taken in the European space legislations seems to be a balanced one. It is flexible enough to accommodate future changes and not rigid so to have an inclusive approach. The reason Europe has a balanced approach is because many of the legislations have been drafted/amended in reference to the ILA Model Law and/or the UN resolution on national space legislation. In comparison, Canada, Australia, and few others seem to have a very narrow scope regulating particular kind of space activity only, while Space Law Basic Legal Documents, Vol. 5, 2015, E.XIX.1; Administrative Edict No. 5 of February 21st 2002 enclosing “Regulation on Authorization Procedures for Carrying out Space Launching Activities on Brazilian Territory” available in Space Law Basic Legal Documents, Vol. 5, 2015, E.XIX.2. 59 1999 National Space and Research Development Agency (NASRDA) Act of Nigeria. 60 2005 Canadian Remote Sensing Systems Act. 61 Francis Lyall and Paul B. Larsen, Space Law A Treatise 2009 Asghate Publication, p. 488. 62 §20102 Congress Declaration of Policy and Purpose, 51US Code. NASA ensures that the US activities in space should be devoted to peaceful purposes for the benefit of all humankind; adequate provision be made for aeronautical and space activities so as to achieve welfare and security of the United States; encourage, to the maximum extent possible, the fullest commercial use of space; establishment of long-range studies of the potential benefits to be gained from, the opportunities for, and the problems involved in the utilization of aeronautical and space activities for peaceful and scientific purposes; making available to agencies directly concerned with national defense of information as to discoveries which have value or significance to that agency; cooperation by the United States with other nations and groups of nations etc. 63 Petra A. Vorwig, Regulation of Private Launch Services in the United States, in Ram S. Jakhu (Ed.), National Regulation of Space Activities 2010, Springer Publications, p. 405; Stephen Dempsey, United States Space Law: Commercial Space Launches and Facilities in Proceedings of the fortyninth Colloquium on the Law of Outer Space, AIIAA, p. 71. 64 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 144. 65 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 144.

3.1 Scope and Application of the Legislation

51

on the other hand Japan and Kazakhstan have a very wide material scope. Even the USA has a very broad material scope. It must be understood here that the US Space Code did not have a broad scope since its conception. Actually, the US Space Code is a compilation of a series of space legislations dedicated to a specific activity making the Space Code very broad in scope. If a state wishes to have a legislation on the footsteps of the USA, then it must also understand their methodology; otherwise, the regulation of space activities might be disoriented and at times out of focus, like Indonesia. Space law in the USA has generally followed the development of science and technology.66 This has led the USA to have a developed legal system comprising laws and regulations applicable to space activities, but at the same time despite codification and creation of the new title 51 of the US Code, the legal framework for space activities remains complex.67 As the material scope of national space legislation varies significantly, it can be inferred that there is no uniform approach as to what constitutes a space activity. Neither any of the space treaties offer a concise definition of space activity nor Article VI of the OST provides the list of space activities for which a State bears international responsibility. The ILA Model defines “space activity includes the launch, operation, guidance and re-entry of space objects into, in and from outer space and other activities essential for the launch, operation, guidance and re-entry of space objects into, in and from outer space”. State practice also suggests that the scope of national space legislation generally extends to activities “in” outer space in general; therefore, for a precise definition of the space activity, defining outer space is inevitable. Knowing outer space continues after air space demarcating the boundary of the two is crucial because the two are distinctively governed by two different legal regimes. The delimitation of the outer space from air space remains unresolved till date despite the issue being on the agenda of UNCOPUOS since its early days.68 Most of the national space legislation has not attempted to address the delimitation issue, but some of the recent legislation either explicitly or implicitly acknowledges that airspace extends to the Van Karman line, which is approximately at 100 km above mean sea level. The Space Activities Act of Australia as amended in 2002 is the first in the world that has made an attempt to demarcate the boundary between air space and outer space.69 The Act expressly applies to launches or attempted launches

66 Joanne Irene Gabrynowicz, One half Century and Counting: The Evolution of US National Space Law and Three Long-Term Emerging Issues in 4 Harvard Law and Policy Review (2010), 405. 67 Irmgard Marboe, National Space Law in Frans von der Dunk et al. (eds.) Handbook of Space Law, 2015 Edward Elgar Publishing, p. 144. 68 At the 860th meeting, on 8 April 2013, the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space reconvened its Working Group on the Definition and Delimitation of Outer Space with the objective to determine how necessary is it to do so, given the current level of space activities and technological development; Draft report of the Working Group on the Definition and Delimitation of Outer Space, Legal Subcommittee Fifty-second session Vienna, 8-19 April 2013; A/AC.105/C.2/2013/DEF/L.1. 69 N. Siemon and S. Freeland, “Regulation of Space Activities in Australia” in Ram S. Jakhu (Eds.) National Regulation of Space Activities, p. 52; S. Freeland, “The Australian Regulatory Regime

52

3 State Practices Towards National Space Legislation

and/or payloads that go or intended to go beyond 100 km above the mean sea level.70 The 2012 Law on Space Activities of Kazakhstan71 defines outer space as “a space extending beyond the airspace at an altitude of more than one hundred kilometers above the sea level”.72 Alike Australia and Kazakhstan, Denmark is the third country to take the spatialist approach to delimitation issue. The spatialist and the functionalist are the two common approaches to address the boundary problem. While the spatialist attempts to determine a fixed boundary between airspace and outer space, the functionalist approach makes the fixed boundary irrelevant, instead advocating for a single legal regime for space activities depending on the nature and purpose of the activity.73 The spatialist approach gives certainty of the applicability of laws to the authorized operators of space activities, whereas a functionalist approach may create an uncertainty,74 as to whether a particular activity, for example suborbital flights, may fall within the scope of legislation unless expressly clarified. The 2017 New Zealand’s Outer Space and High-altitude Activities Act and the 2018 UK Space Industry Act have expressly included high-altitude activities within their jurisdiction. These legislations, based on the functionalist approach, only define the legal regime applicable to space activities and “high-altitude”75 /suborbital activities76 without defining the limits of “high-altitude”/suborbital activities and outer space activities. The UK and the New Zealand approach are not very desirable because it does not give any solution to the delimitation issue and the uncertainty with regard to boundary problem continues. For the purpose of the Danish Space Legislation, the space above the altitude of 100 km above sea level is considered to be outer space.77 The 1993 Space Affairs Act of South Africa conceptualizes “outer space means the space above the earth from a height at which it is in practice possible to operate an object in an orbit around the for Space Launch Activities: Out to Launch?” in Proceedings of the Fort-Seventh Colloquium on the Law of Outer Space 2005, AIAA, p. 60. 70 Francis Lyall and Paul B. Larsen, Space Law A Treatise 2009 Asghate Publication, p. 475; N. Siemon and S. Freeland, “Regulation of Space Activities in Australia” in Ram S. Jakhu (Eds.) National Regulation of Space Activities, p. 51. 71 Law of the Republic of Kazakhstan on Space Activities, 2012 No. 528-IV. 72 Article 1(6) Kazakhstan Law on Space Activities. 73 Francis Lyall and Paul B. Larsen, Space Law A Treatise 2009 Asghate Publication; I. H. P. Diedriks-Verschoor and V. Kopal, An Introduction to Space Law, Wolters Kluwer, 2008. 74 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 145. 75 As per S. 4 of the New Zealand’s Outer Space and High-altitude Activities Act 2017 high altitude means an altitude above the higher of—(a) flight level 600; and (b) the highest upper limit of controlled airspace under the Civil Aviation Act 1990. 76 The 2018 Space Industry Act define “sub-orbital activity” means launching, procuring the launch of, operating or procuring the return to earth of a craft that is capable of operating above the stratosphere including an aircraft carrying such a craft or a balloon that is capable of reaching the stratosphere carrying crew or passengers. Furthermore “space activity” is defined ass — (a) launching or procuring the launch or the return to earth of a space object or of an aircraft carrying a space object (b) operating a space object, or (c) any activity in outer space. 77 S. 4(4) Danish Space Act 2016.

3.1 Scope and Application of the Legislation

53

earth”.78 Similarly, the 2016 Space Act of Indonesia defines outer space as the space beyond air space.79 Then, it defines airspace as the “space that surrounds and covers the Earth’s surface which contains gaseous-air”.80 Both South Africa and Indonesia do not take a hard line of demarcation but instead rely on the functionalist approach, i.e. the possibility to operate an object in an orbit around the earth.81 These national space legislations address the boundary problem with a caveat that demarcation is only for their internal purpose, and they do not intend to fix the international boundary in space. It is not denied that national space legislation does not have a direct influence on international law,82 but it might be considered as an expression of opinio juris and in future if more states address the delimitation issue on the footprints of either Australia or Kazakhstan, or Denmark, it might lead to a customary law.83 Inclusion of delimitation issue in national space legislation may be beneficial for states themselves.

3.2 Implementation of the Authorization and Supervision Principle States have an obligation to authorize and continuously supervise the activities of non-governmental entities. Article VI of the OST does not prescribe any particular choice for authorization and supervision. States are free to choose any method. State practice suggests that authorization is usually achieved by way of licensing, often termed as approval or permit or certificate or authorization or licence. Subsequent paragraph will explain how states have achieved the obligation of authorization and supervision in their respective jurisdiction.

3.2.1 Authorization Methods The general approach taken by all states is that no space activities can be undertaken without an authorization unless granted an exemption by competent authority. Governmental activities are usually exempted from authorization requirements unless 78 Article

1 Definitions; SA Act, 1993. Space Act, Section 1(1). 80 Indonesian Space Act, Section 1(3). 81 L. S. Mkumatela, “Review of the South African Regulatory Framework in the Context of International Space Regulation” in 2011 Proceedings of the International Institute of Space Law, 2012 Eleven Publishers, p. 291. 82 Stephan Hobe, Commentary on Article I in Stephan Hobe/ Bernhard Schmidt-Tedd/ Kai-Uwe Schrogl (eds.) Cologne Commentary on Space Law, Volume 1, Carl Heymanns, 2009, p. 31. 83 Frans G. von der Dunk, The Sky is the Limit- But Where Does it End? In IISL Proceedings of the Forty-eighth Colloquium on the Law of Outer Space, AIAA, 2006 p. 84-94. 79 Indonesian

54

3 State Practices Towards National Space Legislation

expressly prescribed as in the case of Indonesia. Some of the legislations like Denmark,84 UK85 and Australia86 also prescribe for exonerating the commercial owner or operator from authorization requirement. If a state is convinced that a particular commercial activity may not be in conflict with its national security and safety and/or any of its international obligations or an activity is needed in governmental interest, exoneration from authorization requirement may be extended to such activities. State practice suggests that there are two usual ways of authorization: (i) authorization of space activities through a single licence and (ii) authorization of a particular space activity through multiple licences. Austria, Belgium, Denmark, France, The Netherlands, The Russian Federation, Sweden, UK, Ukraine, Japan, Kazakhstan and South Africa regulate all space activities falling within their respective jurisdictions by way of one single licence. A person intending to launch or operate/return a space object must obtain a prior authorization. Both Australia and Korea address only the authorization of the launch vehicle and not the operation of space objects in the orbit, wherein Korea has prescribed for a single launch permit, Australia has prescribed different categories of authorization for different types of space activity and they are as follows: (i) a “space licence” for operating a launch facility in Australia87 ; (ii) a “launch permit” to launch a space object from Australia88 or return of a space object to Australia89 ; (iii) an “overseas launch certificate” for an Australian national to seek launch of space object outside Australia90 ; (iv) an “authorization” for the return of a space object to a place anywhere in Australia of space object that was not launched from the territory or facility within Australia.91 Since much of the commercial space activity also involves satellite operation it will be in the interest of states to include the authorization of operation of space objects as well. A separate licence both for launch activities and for commercial space activities is required in Indonesia.92 Similarly in the USA, a commercial operator seeking launch from a private launch site requires two sets of licences—one for the launch vehicle and the other for the launch site.93 On the other hand, an operator launching from a Federal launch site will need only a licence for the launch vehicle. Brazil 84 S.

18 Danish Space Act 2016. the UK Outer Space Act 1986; S.4 UK Space Industry Act 2018. 86 S.46 Australian Space Activities Act 1998. 87 S.15 Space Activities Act, 1998. 88 S.11, Space Activities Act, 1998. 89 S.13, Space Activities Act, 1998. 90 S.12, Space Activities Act, 1998. 91 S.14, Space Activities Act, 1998. 92 S.35 and S.37 Indonesia Space Act, 2013. 93 Pamela L. Meredith, A Comparative Analysis of United States Domestic Licensing Regimes for Private Commercial Space Activities in Proceedings of the thirty second Colloquium on the Law of Outer Space, October 11-15, 1989, Spain AIIAA, p. 375; Petra A. Vorwig, Regulation of Private Launch Services in the United States, in Ram S. Jakhu (Ed.), National Regulation of Space Activities 2010, Springer Publications, p. 406. 85 S.3(3)

3.2 Implementation of the Authorization and Supervision Principle

55

requires both “licence”94 and “authorization”95 for a “space launching”, whereas only a “licence” is required for undertaking “space launching activities”. Clearly one can get a licence without authorization but not vice versa.96 Any person or body corporate within the jurisdiction of Nigeria can seek authorization by way of licensing for activities, which enable the Agency to be the repository of all satellite data over Nigeria’s territory.97 The reference to “satellite data” indicates that the licensing is mainly limited to only satellite remote sensing operations.98 Similarly, the Canadian Remote Sensing Space Systems Act 2005 demands a licence only for remote sensing systems.99 Whether it is a single licensing mechanism or a multiple licensing mechanism, the general conditions of authorization remain the same, which are discussed below. In a multiple licences regime, a prospective licencee might have to apply for licence more than once to undertake particular activity. Beyond this, the distinction between a single licence regime and a multiple licences regime has no actual ramifications on the authorization of space activities.100

3.2.2 Authorization Factors State practices suggest that safeguard of national security and safety, and in compliance with international obligations has been of paramount consideration for granting authorization of any space activity. In addition, technical and financial conditions of the applicant have been a crucial factor. Nonetheless, variation in the approach also has been experienced. Conditions of insurance and indemnification, transfer of the licence, registration of space objects and protection of the environment are standard tenets of national space legislation, and each one of them requires further detailed, 94 “License is the administrative deed, within the competence of AEB, authorized by a Resolution of its Higher Council, granted to a juristic person, single, an association or consortium, for the purpose of carrying out launching space activities on Brazilian territory, in compliance with the terms and conditions established in this Regulation.” – Article 2 of the Regulations, Edict 27/2001. 95 “Authorization is an administrative deed, within the competence of AEB, authorized by a Resolution of its Higher Council, for performance of a specific space launching on Brazilian territory, in compliance with the conditions established in this regulation and legislation in effect.” – Article 3 of the Regulation, Edict 2/2002. 96 José Monserrat Filho, Regulation of Space Activities in Brazil in Ram S. Jakhu National Regulation of Space Activities, 2010, Springer Publication, p. 74. 97 S. 9(1) read with S.6(k) NASRDA Act, 2010. 98 Frans G. von der Dunk, The Second African National Law – The Nigerian NASRDA Act and the Draft Regulations on Licensing and Supervision in 2016 Proceedings of the International Institute of Space Law, Eleven Publishers 2017, p. 546. 99 S. 2 CRSSS At, 2005. 100 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 147.

56

3 State Practices Towards National Space Legislation

separate analysis. These topics will be discussed later. In this section, the general conditions and restrictions that are applied with respect to authorization have been discussed. Conditions of authorization can either be expressly stated within the legislation or prescribed later as per the circumstances demanding. The later approach does not seem to be favourable because it may disillusion the applicant for reasons of transparency. The former approach is desirable as it prescribes the broad parameters for authorization, which may be non-derogable in nature. At the same time, implementing decrees or the discretionary power granted to the authorization authority may further levy conditions of authorization. This gives stability and predictability and at the same time flexibility to suit the individual case. Sweden and Kazakhstan have the least defined authorization mechanisms, and they give wide discretion to the authorization body. For example, Section 3 of the Swedish Space Activities Act just reads, “A licence may be restricted in the way deemed appropriate with regard to the circumstances. It may also be subject to required conditions with regard to control of the activity or for other reasons”. In comparison, Austria, Belgium, Denmark, the Netherlands, the Russian Federation, the UK and USA have a standard approach to authorization. Generally, authorization is subject to the assessment that the operator possesses the necessary reliability, capability (both technical and financial) and expertise to carry out the space activity; the space activity does not pose any immediate threat to the public order, to the safety of persons and property and to public health; the space activity does not run counter to national security, international obligations or foreign policy interests; necessary mechanism for environmental care and protection. In addition to these conditions, any other conditions and obligations may be levied. South Africa, Nigeria, South Korea and even Brazil follow both flexibility and moderate rigidity. France also levies standard conditions of authorization but the French Space Operations Act is too descriptive. A detailed descriptive authorization regime gives more certainty but at the same time because of the diversity of the space activity, it may create unnecessary complications and confusion making it impractical.101 To this extent, it is desirable that provisions, which can accommodate different types of space activities both presently and in the future, can be incorporated within the principal statute. Further details can be incorporated within the implementing decrees. To cover the changing circumstances or to cover requirements of individual cases, discretionary power may be granted to the authorization body to levy suitable conditions. As stated earlier, Australia, New Zealand and Indonesia prescribe different categories of authorization, and accordingly, the authorization conditions also vary. Despite that the conditions and requirements are generally the same. Lyall and Larsen102 have summarized an application for launch facility licence in Australia which must be accompanied by a management plan explaining how the entire launch facility will be managed; an emergency plan indicating how the operator will meet 101 Annette

Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 147. 102 Space Law a Treatise, 2009, Asgate publisher; 476.

3.2 Implementation of the Authorization and Supervision Principle

57

any emergencies; a technology security plan assuring compliance with Australia’s obligations under an arms control agreement including prevention of unauthorized access to sensitive information; a risk hazard analysis plan showing how the operator will comply with the Risk Hazard Analysis methodology for the relevant flight safety code; a flight test plan regarding the launch of new technology vehicles describing the reason for the flight, the configuration of the craft, the vehicle tracking system, launch and launch termination procedures, and reporting the flight test to the Australian Government. For a launch permit, the holder of the permit must also satisfy the insurance/financial requirements for each launch and each return, conducted under the permit.103 The commercial operator of a launch vehicle must have a programme management plan showing planned management of ground operations, the adequacy of flight safety and of launch procedures, employee awareness of their duties and ability to meet emergencies and relevant communication arrangements; a technology security plan indicating procedures for prevention of unauthorized access to technology as well as compliance with national security restrictions; a flight safety plan indicating compliance with the Australian Flight Safety Code, a data supporting risk analysis and a report to the government on compliance with independent assessment of compliance with the Flight Safety Code.104 Furthermore, for an overseas launch as well as for the return of the space object in Australian territory, the Minister must give due regard as to whether there is an intergovernmental agreement as to the liability and indemnification aspects.105 Besides the above-mentioned specific conditions, in general a person seeking a launch licence or launch permit or overseas launch certificate or authorization to seek return of space objects in Australia must satisfy the Minister (a) as to the competence of the applicant; (b) that all necessary environmental approvals under Australian law have been obtained, and that an adequate environmental plan has been made, for the construction and operation of the launch facility; (c) that there is a minimum probability of the said activity causing substantial harm to public health or public safety or causing substantial damage to property; (d) that the said activity does jeopardize Australia’s national security, foreign policy or international obligations. To sum up, most states follow a similar approach. No activities of nongovernmental entities can be implemented in impairment to international obligations, national security, safety and public health. In addition, an applicant has to prove his competence with respect to the activity, financial capacity, demonstrate emergency plans and furnish information’s wherever required. Lastly, most jurisdictions grant licences for a limited period of time, and thereafter, it is subject to renewal to the satisfaction of the general authorization conditions or if any new conditions are imposed.

103 S.

29(d) of the 1998 Space Activities Act read with Division 3.1 Space Activities Regulation 200. 104 Space Law a Treatise, 2009, Asgate publisher; 476-477. 105 S.35(3) and S.43(4) of the 1998 Space Activities Act.

58

3 State Practices Towards National Space Legislation

3.2.3 Authorization Body and Procedure Usually, a governmental agency, which may or may not exercise control over all the space activities of the licencee, is the authorization body. Some States have bestowed this responsibility upon their national space agency often responsible for all administrative matters related to outer space. Some others have created a licensing office for this purpose, and many states have also bestowed this responsibility upon the Minister/Secretary of the state itself. An application for authorization in the prescribed format is to be submitted to the designated authorization agency. Upon receipt of the application for authorization, the agency, on the basis of legal, technical and economic criteria, concerning in particular the reliability, know-how and experience of the operator, and their capacity to comply with the rules applying to the activities carried out, as well as the operator’s solvency and the legal and financial guarantees may decide upon the application within the statutory prescribed time frame. For greater care and precaution, some states like Sweden, UK and USA also prescribe for an intergovernmental departmental scrutiny. The agency may grant licence without any objection or may impose new conditions or may even reject the application if the situation demands so. Usually, in cases of rejection, reasons are to be stated in writing. The authorization conditions discussed in the preceding section are given due consideration for granting an authorization. State practice suggests that the details of authorization procedure are generally not included in the principal legislation but rather prescribed through an implementing decree.

3.2.4 Continuing Supervision Article VI of the OST not only requires the states to authorize the activities of nongovernmental activities, but it also requires that all such authorized activities must be continuously supervised. This ensures that not even for a moment there is an iota of a chance for any space activity to be in conflict with any of the international space treaties and create a risk of harm. State practice suggests that the supervision of space activities has generally been achieved by inspection of the facilities and receiving of information about the activities. An authorized activity is to be performed strictly in compliance with the conditions of authorization. In the event of new or changed circumstances of significance for an authorized space activity, the operator also has a duty to promptly report to the authorities about the deviation. If the situation demands, they may issue directions for compliance, search and seize documents. For this purpose, authorities are also empowered to access the business premises, inspect relevant documents and seek any other information from the operator. All States with the exception of Australia and Indonesia have secured authorization and supervision through the same body. The authority that has been bestowed with the responsibility of authorization also has the responsibility of supervision.

3.2 Implementation of the Authorization and Supervision Principle

59

Such an approach has both merits and demerits. If the authorization and the supervisory body are same, ideally things should work coherently with no additional bureaucracy. The flip side of it is that there may be a possibility of negligence in effectively discharging the duty of supervision for reasons of familiarity. To this extent, supervision by a body other than authorization body ensures a proper check and balance. It will be in the interest of the state to bestow the responsibility of authorization and supervision by a separate independent body as Australia and Indonesia have done. Both of these states bestow the responsibility of supervision on an independent statutorily created authority, similarly named as the “launch safety officer”106 (LSO) and “launching safety officer”,107 respectively. It is the statutory duty of the LSO to ensure compliance with the Act and Regulations and to ensure that no person or property is endangered by any launch/return of space object.108 To exercise these functions, the LSO has been empowered to do all that is reasonably necessary or convenient for the performance of his/her functions.109 In particular, the LSO has the power (a) to enter and inspect the facility and any space object at the facility; and inspect and test any other equipment at the facility; (b) or ask the licencee or the permit holder to give him/her the necessary information or assistance; (c) give any directions about the return of space object/launch of a space object carried out, or proposed to be carried out, at the facility that he or she considers necessary to avoid any danger to public health or to persons or property including directions to stop the launch or destroy the space object (whether before or after it is launched). To prevent an arbitrary exercise of powers conferred to the LSO, the Australian Space Activities Act imposes inherent limitation on the LSO that he/she must exercise his/her power in accordance with the Act and must not enter the launch facility without the consent of the holder of the relevant space licence or of a person authorized by the holder to give that consent.110 Nevertheless if, the LSO suspects, on reasonable grounds, that because the circumstances being so serious and urgent, it is necessary to search the facility or/and seize, the LSO may do so.111 Additionally, for the purpose of ensuring compliance by the licence holder with the Act and with the conditions of the licence, the Minster may conduct an annual review of the licence.112 To avoid any conflict of interest, the Indonesian Act prohibits its launching safety officer to enter into any kind of business relation or binding relation with the licence holder of space activities or launching.113 If circumstances demand, the Indonesian

106 S.50

of the 1998 Space Activities Act. 53 Indonesian Space Act, 2013. 108 S. 51 of the 1998 Space Activities Act. 109 S.52 of the 1998 Space Activities Act. 110 S.52 of the 1998 Space Activities Act. 111 S. 56 of the 1998 Space Activities Act. 112 S.25A of the 1998 Space Activities Act. 113 Article 55(4) Indonesian Space Act, 2013. 107 Article

60

3 State Practices Towards National Space Legislation

launching safety officer may also terminate the launching or destroy the space object either before after the launch.114 Non-compliance with the conditions of authorization or directions may also invite suspension or even revocation of authorization. Mere suspension or revocation of authorization does not absolve the operator from their obligation. Most of the legislation has included continuation of the obligation even after termination of the authorization. In France, the authority may also enjoin the operator to take, at its own expenses, appropriate measures regarding the commonly admitted good rules of conduct to limit the risk of damage due to that object.115 An occasion to terminate or revocate a licence may arise if the operator does not comply with the licensing conditions, which may be when an activity is in breach of any of the international obligations or in breach of statutory provisions or in breach of authorization regulations; activity likely to impair public health or safety; jeopardies of national interest or security. Nevertheless, revocation and suspension of the licence may also be on grounds akin to a particular state.116 Austria, Denmark and the UK allow revocation of licences in the cases of an incident.117 Refusal to allow authorities to access the facilities has been considered as a specific ground for the revocation of licence in the Belgium Space Act.118 While The Netherlands enumerates compulsory and optional ground for revocation of licence,119 Sweden merely stipulates that the licence can be revoked in the case of exceptional reasons, depending upon the licensing condition or pose an unnecessary risk to the Swedish state.120 Both Australia and New Zealand also allow suspension or revocation of the licence at the behest of the licencee or only when they have been heard.121 A similar provision has been incorporated in the 2018 Space Industry Act of UK.122 In the Republic of Korea (South Korea), a space activity may also be suspended during the time of war, national emergency or in any other similar situations.123 Brazil has prescribed even bankruptcy of licencee as a ground for suspension or revocation.124 Mere bankruptcy of licencee may not make the state internationally liable, but in case a liability arises, a licencee may not be in position to indemnify the State. To safeguard its financial interest, Brazil has considered even bankruptcy as a 114 Article

55(2)(C) Indonesian Space Act, 2013. 9, French Space Operation Act, 1998. 116 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 156. 117 S. 6(1) Austrian Space Act; S.8, S.9 Danish Outer Space Act; S.5(2) UK Outer Space Act read with S.15(5) of the UK Space Industry Act. 118 S.11(1) Belgium Act on Space Activities. 119 S.7(1) & 7(2) Dutch Space Activities Act. 120 S.4, Swedish Act on Space Activities. 121 S.24, S.33 (1), S.40 & S.45 of the 1998 Australian Space Activities Act; S. 14(1), S.2(1), S.30(1), S.37(1) of the New Zealand Space Activities Act. 122 S.15 15(3). 123 Article 19, Space Development Promotion Act, 2005. 124 Article 21(I) of the Administrative Edict 27/2001. 115 Article

3.2 Implementation of the Authorization and Supervision Principle

61

ground for suspension or revocation of licence. Where an incident happens or is likely to happen despite licencees due diligence and compliance with laws and licensing condition prudence demand, a second chance should be given. In this regard, the US Space Code stipulates that when licencee has taken sufficient steps to reduce the likelihood of a recurrence of the serious or fatal injury suspension of the license might be ceased.125 Space legislations of Nigeria and Kazakhstan are silent with regard to suspension and revocation of authorization, but nevertheless the authorities may impose these conditions either through administrative action or by subsequently enacting implementing decree. Supplementing these provisions, all national space legislations seem to agree that any violation of their acts or licensing condition shall invite sanction.126 State practice suggests that there is no uniformity with regard to the degree of sanctions. Some prescribe for monetary fine, while some others prescribe for imprisonment even of criminal nature for violating any of the licensing or statutory conditions. Belgium has levied a fine of minimum of 25 Euro to a maximum of 25,000 Euro or imprisonment of eight days to a year127 ; Austria levies a fine of a minimum of 20,000 Euro to a maximum of 100,000 Euro.128 While the French legislation considers violation of its act as a criminal office and prescribes a fine of Euro 200,000129 ; The Netherlands considers such violation as civil offence wherein an administrative penalty of up to Euro 450,000 or 10% of the relevant annual sales of the company in the Netherlands, whichever is the greater can be levied.130 Ukraine legislation does not prescribe for the nature of punishment but considers offences under the legislation on space activity in Ukraine shall be punishable by disciplinary, civil law or criminal penalties in conformity with Ukrainian legislation currently in force.131 In the USA, violation of the licensing conditions and/or statutory provisions or regulations may amount to a civil penalty to a maximum of $100,000 per day.132 A separate violation occurs for each day the violation continues. Denmark, The Republic of Korea (South Korea) and the UK make a distinction between the offences committed by an individual and a body corporate by imposing much more stringent sanctions upon the body corporate in comparison to an individual.133 Australia, New Zealand and Indonesia prescribe for different types of sanctions depending upon the nature of offence committed.134 125 S.50908

51 US Code.

126 Kumar Abhijeet, State Practices Towards National Space Legislation in R. Venkata Rao & Kumar

Abhijeet (Eds.) Commercialisation and Privatisation of Outer Space – Issues for National Space Legislation, 2016, KW Publishers, p. 86. 127 Article 19 Belgium Space Act 2005. 128 S.14 Austrian Outer Space Act 2011. 129 Article 10 read with Article 11 of the French Space Operation Act, 2008. 130 S.15 Dutch Space Activities Act, 2008. 131 Article 29 Law Of Ukraine On Space Activity 1996. 132 §50917(c), 51 US Code. 133 S.21 Danish Outer Space Act 2016; Article 27 & 28 of the Korean Space Development Promotion Act, 2005; S.54, 57,58 of the UK Space Industry Act 2018. 134 Part VI of the Australian Space Activities Act 1998; Sub part 3 of the New Zealand Outer Space and High-altitude Activities Act 2017; Chapter XVI Indonesian Space Activities Act 2013.

62

3 State Practices Towards National Space Legislation

Quantum and nature of the sanction is dependent upon the individual internal policy of a state but unlike any other offence under any other legislation all states treat violation of their space legislation as a very serious offence. Knowing all space activities are inherently dangerous, prone to incur unlimited liability all legislations prescribe for an exorbitant penalty. A heavy penalty serves as strong deterrent factor for the licencee to deviate from the minutest of the provision. The variation in degree of sanction is largely dependent upon the nature of respective space legislation, provisions contained therein and the licensing conditions.135

3.3 Financial Responsibility As a “launching state”, a state may become liable for damage caused by a space object. International space law does not impose any liability upon the private enterprise, rather states themselves bear the liability.136 There is no way by which a state can evade from this public liability for a private activity. Nonetheless, states can seek indemnification from their private operators, should a state be held liable to pay for damages caused by their activities. Since damages are future oriented, it is quite possible when actual damage occurs, the particular enterprise either does not exist or do not have the capacity to indemnify. In such a situation, an indemnification clause may not be of any use. In anticipation of such situation, it is prudent to levy the mandatory third-party insurance coverage to the extent of risk involved in a particular space activity. Requisite insurance coverage will help both the state and the non-governmental entity to safeguard their respective financial interest towards meeting third-party liability for damages, if any. The Austrian Outer Space Act provides a right of recourse to the government against the operator in cases where Austria has compensated for damage caused by a space activity.137 The recourse is limited to the amount up to the sum of insured risk only for damage caused on the surface of the Earth or to aircraft in flight.138 Beyond the insurance amount, the Government bears the liability. Where damage happens in outer space, the Austrian government would be entitled to full compensation, although it has the discretion in a given case not to exercise its right.139 Liability for damage caused in outer space is determined on a fault basis. If the operator is at fault, it is legitimate for the government to seek full reparation but where despite the exercise of due diligence, damage still happens it is also genuine on the part of the

135 Annette

Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 179. 136 Article VII OST. 137 S. 11(1) Austrian Outer Space Act, 2011. 138 S. 11(2) Austrian Outer Space Act, 2011. 139 Von der Dunk, Another Addition To National Space Legislation: The Austrian Outer Space Act, Adopted 6 December 2011 in IISL Annual Proceedings on the Law of Outer Space 2012.

3.3 Financial Responsibility

63

operator to expect some leniency, and so discretion of the government in such cases is justified. Belgium, Denmark and France establish the same liability rules as set by the Liability Convention140 but compared to the Liability Convention, which sets only international liability, the scope of their national space legislation is much broader on this aspect. They cover liabilities even for damages caused to their nationals and property.141 The French Space Operation Act establishes liability not only for damage caused by a space object but also for damages caused by space operations, which means liability may even be imposed for ground-based assets.142 The Swedish Space Act recognizes its liability for “space activities” and not merely for damage caused by “space objects”.143 It is an acknowledgement that Sweden undertakes international liability not only under Article VII of the OST (and the respective provisions of the Liability Convention) but also in cases of responsibility under Article VI of the Outer Space Treaty, where the State has to pay compensation.144 Similarly, Belgium, Denmark, France, the Netherlands, Sweden, Australia, Indonesia, Kazakhstan, South Korea and the USA have reserved their right to seek recourse against the operator for damages but with significant variation in approach.145 Belgium and France determine a liability limit on a case-to-case basis as per the circumstance,146 in accordance with the applicable procedures.147 Denmark intends to limit the operator’s liability to pay damages through regulations.148 In the Netherlands, the licence holder is liable for damage caused by its space activities only up to the value of the sum insured.149 For a long time, private enterprises in the UK had to bear unlimited liability, but with effect from 1 October 2015, the

140 Absolute

liability for damages caused on the earth or in airspace and fault based liability for damages caused elsewhere. 141 Article 15(2)(2) the Belgium Space Law 2005; S.11(2) Danish Space Act 2016. 142 Irmgard Marboe, National Space Law in Frans von der Dunk and Fabio Tronchetti, Handbook of Space Law, Edward Elgar Publisher, p. 159; also refer Mireille Couston, The Legal and Financial Liability Regime under the New French Space Legislation in Lesley Jane Smith and Ingo Baumann (Eds.) Contracting for Space, 2011 Ashgate Publishers, p. 319 – 335. 143 Refer Article VII OST and the Liability Convention. 144 National Space Law, Irmgard Marboe in Frans von der Dunk and Fabio Tronchetti (Eds.) Handbook of Space Law 2015 Edward Elgar Publisher, p. 154. 145 Article 15 Belgium Space Law 2005; S.12 Danish Space Act 2016; Article 14 French Space Operation Act; S.12(1) Dutch Space Activities Act 2008; S.74, Australian Space Activities Act, 1998; S.76 Indonesian Law on Space Activities, 2013; Article 27 Kazakh Law; Article 3 South Korean Space Launch Act, 2007. 146 Jean- François Mayence, “12 Questions And 40 Points To Present The Law On Activities Relating To The Launching, Flight Operations And Guidance Of Space Objects” available at https://www. belspo.be/belspo/space/doc/beLaw/PresentLoi_en.pdf. 147 Article 15(3) Belgium Space Law, 2005. 148 S.11(4) Danish Space Act 2016. 149 S. 12(2) read with S.3(4) Dutch Space Activities Act, 2008.

64

3 State Practices Towards National Space Legislation

OSA has been amended prospectively150 to prescribe a ceiling on their liability.151 A limited liability approach is also explicitly seen in the US, in the Australian and in the South Korean space legislations.152 The South African Space Affairs Act has a residual clause where the liability of the licencee for damage may be limited or excluded.153 The latest in the trend comes from Japan that has passed legislation (2016) to share responsibility for compensating damage on behalf of private enterprises. This indicates that the global march of national space legislation is towards shared public–private liability.154 In contrast, the Ukrainian law on space activities merely prescribes that compensation for damage shall be payable in conformity with Ukrainian legislation currently in force. This raises a few important questions—whether a privatize enterprise bear an unlimited liability or there is a cap; whether the Ukrainian Government can seek recourse.155 Similarly, Sweden and Indonesia do not clarify whether the non-governmental entities bear unlimited liability or there is a cap. But nonetheless, these requirements could be attached to the licence.156 In the USA, prior to the Commercial Space Launch Act, private operators were supposed to bear unlimited absolute liability for damages caused on Earth, demotivating them to engage in space business activities.157 It was logical on their part to argue that unlimited absolute liability would either perish them or would dissuade them to start up the business unless an appropriate ceiling was put.158 A cap on the liability is very much needed because an unlimited liability may not be covered under insurance, and total redress may lead to bankruptcy or to the end of space activity of

150 For licenses issued prior to 1 October 2015 liability cap does not apply automatically. The holders

of such license need to write to the UK Space Agency and ask for a cap to be applied to their licensed mission. Each request will be assessed and notice of the decision will be given in writing. (Annexure B, Revised Guidance For Applicants Outer Space Act 1986.). 151 S. 12 of the Deregulation Act of 2015 – Space Activity: limit on indemnity required. 152 S.50915, 51 US Code read with 14 CFR S.449.19; S.69, Australian Space Activities Act, 1998; Article 5 South Korean Space Liability Act, 2007. 153 S.14 South African Space Affairs Act, 1993. 154 Kumar Abhijeet, Privatisation of Space in India and Need for A Law in Rajeswari Pillai Rajagopalan et al. Space India 2.0, 2017, p. 113. 155 Michael Gerhard, The Law of Ukraine on Space Activities in 51 German Journal of Air and Space Law 1/2002 p. 59. 156 Niklas Hedman, Swedish Space Legislation in Proceedings of the United nations/ International Institute of Air and Space Law Workshop on Capacity Building in Space Law, 2003 United Nations ST/SPACE/14 p. 114; Niklas Hedman, Swedish Legislation on Space Activities in Christian Brünner/ Edith Walter (Eds.) National Space Law, 2008 Böhlau Verlag, p. 77. 157 Francis Lyall and Paul B. Larsen, Space Law A Treatise 2009 Asghate Publication, p. 489; G. H. Reynolds and R. P. Merges, ‘Towards an Industrial Policy for Outer Space: Problems and Prospects of the commercial Launch Industry’ (1988) Jurimetrics 7-42. 158 Francis Lyall and Paul B. Larsen, Space Law A Treatise 2009 Asghate Publication, p. 489; G. H. Reynolds and R. P. Merges, ‘Towards an Industrial Policy for Outer Space: Problems and Prospects of the commercial Launch Industry’ (1988) Jurimetrics 7-42.

3.3 Financial Responsibility

65

the licence holder.159 A cap on the liability through regulations grants more flexibility than a statute as the former is easily susceptible to modifications as per the changing requirement. Nevertheless, there must be statutory recognition of limited liability because it emboldens the investors. Generally, the benefit of limited liability is not available if the operator or his agent is at fault or has infringed any of the licensing conditions or has undertaken an unauthorized space activity. It is fair that the Government does not take responsibility to cover losses for those who have neglected to take basic legal precautions, and in such cases, the responsible party is absolutely liable to pay compensation for any damage caused by a space object. Conversely, if the operator has exercised due diligence, the activity being ultimately in the national interest, a financial support from the Government will enable them to sustain their activities; otherwise, they may be hesitant to take such high-risk activities. In order to cover the liability of damages caused to a third party, the Austrian Space Act mandates the operator to take a third-party insurance coverage for a minimum amount of 60,000,000 Euros. Belgium does not mandate for compulsory third-party insurance coverage for damage caused by an authorized space object. Rather an obligation for an appropriate insurance requirement may be imposed on a case-to-case basis.160 This is largely to encourage small and start-up space industry that might be unnecessarily burdened with an expensive insurance and compensation amount.161 In contrast, Denmark, France and the Netherlands as a condition for granting authorization for a space activity may impose requirements on the operator to take out third-party insurance coverage.162 As an alternative to insurance coverage, France and Denmark are also open to some other security that may cover the liability.163 A guarantee in the form of security is also equally good enough to safeguard the financial interest of states. In the Netherlands, the amount of insurance coverage is determined after considering the maximum possible cover for the liability arising from the space activities and of what can reasonably be covered by insurance.164 Von der Dunk explains that the Maximum Probable Loss concept is a loosely defined concept used in the US and the Australian165 licensing regimes.166 Non-availability 159 Heleen

de Brabander-Ypes, Introduction to Dutch Space Activities Act in Space Law Basic Legal Documents, E.XIV.1,p.4; Explanatory Memorandum to the Australian Space Activities Bill 1998. Available at http://parlinfo.aph.gov.au (accessed on 30th November 2016). 160 Article 5(2) Belgium Space Law, 2005. 161 Irmgard Marboe & Karin Traunmüllerr, Small Satellites and Small States: New Incentives for National Space Legislation in 38 Journal of Space Law 2/ 2012, p. 313. 162 S. 13 Danish Space Act 2016; Article 6 French Space Operation Act 2008; S. 3(4) Dutch Space Activities Act, 2008. 163 S. 13 Danish Space Act 2016; Article 6 French Space Operation Act 2008. 164 S. 3(4) Dutch Space Activities Act, 2008. 165 In the financial interest of the Commonwealth and the Industry participants undertaking a space activity the Australian Space Activities Act mandates the total insurance, for each launch or return concerned, must be for an amount not less than A$750 million or the ‘maximum probable loss’ whichever is lesser of the two. 166 Frans von der Dunk, Regulation of Space Activities in the Netherlands – From Hugo Grotiuos to the High Ground of Outer Space in Ram S. Jakhu (Ed.) National Regulation of Space Activities

66

3 State Practices Towards National Space Legislation

of experts to do complex technical analysis makes this concept impracticable and uneconomical.167 To meet up the liability for damages, the Russian Law provides for a two-tier system of insurance.168 At the first level, space operators must undertake a compulsory insurance with regard to the health and life of cosmonauts, space infrastructure personnel and liability for damage caused to the life, health or property of third party. At the second level, a voluntary insurance may also be undertaken for the risk of loss, insufficiency or damage of space technology. Ukrainian intends to prescribe details of insurance through an implementing decree.169 The UK requires that the licencee must have insurance for an amount prescribed by the authorizing body against all liabilities that may arise in respect of damage or loss suffered by third parties in the UK or elsewhere as a result of the authorized activities.170 The UK Space Agency standard insurance requirement is that for each licence application, a risk assessment will be performed to consider the potential risks posed by the mission and a commensurate level of insurance cover will be determined.171 In the majority of cases, involving single satellite missions employing established launchers, satellite platforms and operational profiles, this insurance cover is limited to sixty million Euros.172 As a licensing requirement in the USA, the potential licencee must have a third-party liability launch insurance of US$500 million or as much liability insurance is available at reasonable cost, as determined by the FAA.173 The South Korean Space Liability Act, instead of prescribing a fixed quantum of insurance, prefers an amount capable of compensating for damage caused by the space object.174 Furthermore, a licencee under the US jurisdiction must implement reciprocal waivers of claims with its contractors and subcontractors, its customer(s) and the customer’s contractors and subcontractors, including cross-waivers of claims with governmental agencies, if involved. Each party waives and releases claims to the extent agreed upon against the other parties to the waivers and agrees to assume financial responsibility for property damage it sustains and for bodily injury or property damage sustained by its own employees, and to hold harmless and indemnify

in the Netherlands., 2010 Springer Publication, p.242; Frans G. von der Dunk, Implementing the United Nations Outer Space Treaties – The Case of the Netherlands in Christian Brünner/ Edith Walter (Eds.) National Space Law, 2008 Böhlau Verlag, p. 102. 167 Review Report (May, 2016) on the 1998 of Space Activities Act by ‘Optus Satellite’ – a wholly owned subsidiary of the Singapore Telecommunications Limited. 168 Article 25, Law on Space Activities, 1993. 169 Article 24, 1996 Ukraine Law on Space Activity. 170 S. 5(2)(f) the Outer Space Act, 1986 read with S. 12(3) of the Deregulation Act of 2015. 171 Revised Guidance For Applicants Outer Space Act 1986. 172 Revised Guidance For Applicants Outer Space Act 1986. 173 § 50914, 51 US Code read with 14 CFR, § 440.9. 174 Article 15 SDP Act of 2005. Article 6 of the SL Act 2007 elucidate that the minimum amount of the third party liability insurance is in accordance with the compensation limit in consideration with the domestic and foreign insurance markets.

3.3 Financial Responsibility

67

each other from bodily injury or property damage sustained by its employees, resulting from licenced launch activities, regardless of fault.175 The reciprocal waiver spreads the risk of loss with the contracting parties as well as it motivates them to purchase smaller individual insurance, should a need be there.176 Insurance and indemnification are the two basic tools through which states have safeguarded their financial interest. Indemnification or the right to recourse is a direct consequence of the financial responsibility of states for damage caused by space objects for which the state is a launching state.177 The study of national space legislation reveals that initially states used to seek absolute indemnification, but realizing that such an approach was counterproductive for private industries, a shared liability with private enterprise has been welcomed. There have been variations in approach and the amount of insurance coverage. Some levy a fixed sum of insurance, and some prescribe on a case-to-case basis depending upon the risk involved. Some states instead of insurance seek financial guarantees, which are also equally good enough to safeguard the financial interests of states.

3.4 Transfer of the Space Object/Licence In the commercial age, sale-purchase of satellites in orbit is a reality. Space objects may be subject to the transfer of the title, transfer of ownership or transfer of operation and control after an authorization has been granted. An uncontrolled transfer of space objects/licences may expose the transferor state to the risk of damages. The transferor state must safeguard its financial risk, and to this requirement, an agreement is needed between the transferor and the transferee as to the future liability of space object being transferred. This is especially the case where the transfer is cross-jurisdiction, i.e. the transfer of the licence/space object to an operator outside of the state where licence has been granted, because effective supervision of the operator would be impossible.178 Not many states have specifically addressed the issue of transfer of space objects in their national space legislation, but state practices do suggest that a transfer is not unconditional. States do recognize that the obligation to continuously supervise the activities of non-governmental entities requires the transfer of the licence to 175 §

50914, 51 US Code read with 14 CFR § 440.17. Lyall and Paul B. Larsen, Space Law A Treatise 2009 Asghate Publication, p. 492; Paul B. Larsen, Cross-Waivers of Liability, in Proceedings of the Thirty-Fifth Colloquium on the Law of Outer Space, 1992 AIAA, 91-96; S. Eigenbrodt, Out to Launch: Private Remedies for Outer Space Claims in Journal of Air Law and Commerce, 1989, pp. 185-222. 177 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 161. 178 Michael Gerhard, Transfer of the Space operation and Control with Respect to Space Object: Problems of Responsibility and Liability of States, 51 German Journal of Air and Space Law, 4/2002, pp. 571-581; Michael Chatzipanagiotis, Registration of Space Objects and the Transfer of Ownership in orbit, 56 German Journal of Air and Space law, 2/2007, pp. 229-238. 176 Francis

68

3 State Practices Towards National Space Legislation

be regulated. The Austrian Space Act has ensured “authorization and continuing supervision” mutatis mutandis in case of a change of the operator.179 In such cases, the change of the operator will require authorization, which may be authorized as if the operator is a first time applicant.180 Alike Austria Belgium, Denmark, France, UK, Australia, New Zealand and the USA have also given due importance to in orbit sale/transfer of space object that grant effective control of such objects to the third party. Under the Belgium jurisdiction, authorization is granted on a personal basis to the operator submitting the application and is non-transferable.181 Article 13 of the Belgium Space Law prescribes that “the transfer to a third party of authorized activities or real or personal rights, including guarantee rights, which transfers the effective control of the space object may not be carried out without … prior authorization”. The transferee operator has to submit an application of transfer as if he is applying for the first time and all the initial conditions of authorization remain applicable.182 If required additional new conditions may be imposed, which may be binding on one or both parties. Similarly the Danish Space Act and the French Space Operations Act explicitly require a prior approval for the transfer of space objects or space activities to another owner or operator.183 Furthermore, in case of an interstate transfer, both Belgium and Denmark require an intergovernmental agreement confirming indemnification rights against their international liabilities or claims for damages.184 Both Australia and New Zealand permit the transfer of licences/permits provided the transferee following the transfer or change of control is likely to be able to comply with the conditions of transfer, and give proper effect to the licence or the permit.185 In the USA, the licences to launch/operate a launch site may be transferred only after receiving the requisite approval in a manner as if it is to apply for a new licence.186 A licence is also required for both administrative control/transfer as well as operational control/transfer of private satellites.187 Before entering into any kind of agreement with foreign nations, the licencee must notify in advance and must provide the following information188 : (i) the identity, residence and citizenship of the foreign person(s) or nation(s) who will acquire control; (ii) the licencee’s proposed plan to ensure that the licencee will protect the operational control of the licenced system 179 Unofficial

Translation to the Explanatory Report of the Austrian Outer Space Act; see Irmgard Marboe, The New Austrian Outer Space Act, 61 German Journal of Air and Space Law 1/2012, p. 51. 180 S.8 Austrian Outer Space Act, 2011. 181 Article 4(2) Belgium Space Law 2005. 182 Article 13(3) Belgium Space Law 2005. 183 S. 15(1) Danish Space Act 2016; S.3 French Space Operations Act 2008. 184 Article 13(5) Belgium Space Law 2005; S. 15(2) Danish Space Act 2016. 185 S.22-24, S.31-33, S.38-40 of the Australian Space Activities Act 1998 and S.53-54 of the New Zealand Outer Space and High-altitude Activities Act 2017. 186 §50905, 51 US Code read with 14 CFR § 420.45. 187 § 60121, 51US Code read with 15 CFR, § 960.7. 188 §60122(b)(6), 51US Code read with 15 CFR § 960.8.

3.4 Transfer of the Space Object/Licence

69

from foreign influence and prevent technology transfer that would adversely impact national security, foreign policy or international obligations; and (iii) such additional information as may be prescribed. The Netherlands, Ukraine and the Republic of Korea (South Korea) regulate the transfer of the space objects through their registration. Under the Dutch legislation, generally a licence for any particular activity is non-transferable but in cases of merger or division or change of the name of the corporate entity to whom the licence has been issued, appropriate changes in the Registry of space objects can be made.189 Under the Ukrainian law, all space facilities are subject to mandatory registration and if a space facility is transferred in “accordance with the procedure established” to another State or to an international or foreign enterprise, institution or organization, then such space object is to be removed from the national registry.190 It can be inferred that space facilities in Ukraine are not freely transferable but subject to the “procedure established”. The procedure and rules for leasing a space facility to an international foreign subject of the space activity are governed by the legislation currently in force, unless otherwise provided by international agreements to which Ukraine is a party.191 The Republic of Korea space legislation merely prescribes that any change to registered space objects demands communication to the authorities.192 Similarly, the Kazakhstan Law merely stipulates that lending or leasing of a space object to international participants will be governed by the Kazakh law.193 It is implied that no transfer of the licence shall take place without the consent of authorities. While the Russian Federation does not permit any transfer of the space object; Indonesia permits the transfer of space objects pursuant to a transfer agreement wherein the liability of the operator is also transferred.194 The Russian Resolution on Ratification of Provisions for Licensing Space Operations states that “the license for space operation is valid only for the type of space operations indicated therein; the licensee shall have no right to transfer or sell the license to another …. In the case of reorganization, a change of name of the legal entity, a change of identity card information of a sole proprietor, or if the license is lost, the licensee is obligated to apply for reissue” as per the procedure established for obtaining a licence.195 Apart from the states that have regulated the transfer of space objects or have prohibited the transfer of the licence; Sweden, South Africa196 and Nigeria197 have 189 S.

8 Dutch Space Activities Act, 2008. 14 Ukraine Law on Space Activity, 1996. 191 Article 16 Ukraine Law on Space Activity, 1996. 192 Article 8 Korean Space Development Promotion Act 2005. 193 Article 26 Kazakhstan Law on Space Activities, 2012. 194 Article 78 Indonesia Space Act 2013. 195 Paragraph 21 Resolutions No. 104, Resolution on Ratification of Provisions for Licensing Space Operations. 196 Article 14(4) South Africa Space Affairs Act 2006 mandate the licensee to notify of any information to which to his knowledge may affect the licensing conditions. 197 S.9(4)(d) NASRDA Act, 2010 merely mention that any deviation from the orbital parameters is to be communicated and where needed prior permission is to be taken. But it is not clear whether a transfer of license or operation of space object is permitted. 190 Article

70

3 State Practices Towards National Space Legislation

not included a provision on the transfer of the licence at all. Nonetheless, no activities can be undertaken without an authorization and licensing authorities across all jurisdiction do have residuary power to impose any additional conditions wherein requirements as to not to transfer the licence/space object without the permission of the appropriate authorities may be levied. Lack of an explicit provision on transfer of space objects/licence leads to the conclusion that the space objects/licence under these jurisdictions are not transferable.198 Prohibition on transfer of the space objects is precisely because some states feel transferee may not be in a position to effectively discharge the international obligation to continuously supervise the activities, and it may make them liable even after the transfer of space object. They even suspect that the transferee may not adhere to the standards and requirements as levied by the transferring state statute.199 However, this can be prevented by regulating the transfer as most of the states have done.200 In this regard, a good manifestation can be seen in the 2018 UK Space Industry Act. The Act explicitly mentions that the transfer of the licence is permitted subject to the satisfaction that the transfer will not impair the national security of the UK; is consistent with the international obligations of the UK; is not contrary to the national interest; the transferee has the financial and technical resources to do the things authorized by the licence, and is otherwise a fit and proper person to do them.201

3.5 Implementation of the Registration Principle Usually, registration requirements for space objects have been prescribed in accordance with the Registration Convention. The maintenance of a public national registry of space objects and the communication of the requisite information to the UN are largely, universally experienced. The Russian Law on Space Activities acknowledges the registration of space object,202 but is silent as to the information required for this purpose.203 Even the

198 Annette

Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 155. 199 Explanatory memorandum to the Dutch Space Activities Act. 200 Annette Froehlich, Vincent Seffinga (Eds.), National Space Legislation – A Comparative and Evaluative Analysis, Springer Publishers, p. 155. 201 S.15 UK Space Industry Act 2018. 202 Article 17 Russian Law on Space Activities, 1993. 203 Julian Hermida, Legal Basis for National Space Legislation, Kluwer Publication, 2004, p. 11; Irmgard Marboe, National Space Law in Frans von der Dunk et al. (Eds.) Handbook of Space Law, Edward Elgar Publishing, 2015, p. 146.

3.5 Implementation of the Registration Principle

71

Ukrainian Law on Space Activities is silent on this aspect, but Ukrainian law prescribes for registration of “space facilities”204 and not just space objects, which is a much broader concept as the former includes ground infrastructure that supports the operation of space objects.205 The Kazakhstan Law on Space Activities distinguishes between space objects of natural and legal persons of the Republic of Kazakhstan and space objects launched by foreign natural or legal persons.206 Concerning the former, the Law provides a detailed list of information which has to be provided and information on the procedure of registration, whereas for registration of the later, only basic information is required. The information furnished in the national register of Australia is in accordance with the general information enlisted in the Article IV of the Registration Convention, but there is no provision for the relevant information to be sent to the Secretary General of the United Nations in accordance with the Registration Convention.207 But since the obligation to communicate information pertaining to registration of space objects vests with the state themself, it will not make a difference even if such a provision is not expressly stated. Denmark208 and New Zealand209 have left the requirements of registration of space object to be determined by the regulations, which is yet to be enacted. This gives flexibility to the State to prescribe rules and procedures for registration at its convenience. The state practice suggests that generally, following information is to be recorded in the national registry: the name of the launching State or States; an appropriate designation of the space object, its registration number; the date and territory or location of the launch; the main orbital parameters, including nodal period, inclination, apogee, perigee; the general function of the space object; the manufacturer of the space object; the owner and operator of the space object. If necessary, in the light of the technological state of the art, additional information may also be required.210 At times, states also demand specific information for registration. Austria demands information on the ITU frequency211 ; the Republic of Korea requires information pertaining to liability for damage arising out of a space accident of manufacturer details and of the date of manufacturing of the space object.212 When the 204 As

per Article 13 of the Ukraine Law on Space Activity, 1996 all space facilities are subject to mandatory registration in the Register of Space Facilities of Ukraine in accordance with Regulations Governing the Registrations of Space facilities in Ukraine. 205 Julian Hermida, Legal Basis for National Space Legislation, Kluwer Publication, 2004, p. 139. 206 Article 11 Kazakhstan Law on Space Activities 2012. 207 Noel Siemon and Steven Freeland, Regulation of Space Activities in Australia in Ram S. Jakhu (Ed.) National Regulation of Space Activities 2010, Springer, p. 56. 208 S. 10 Danish Space Act, 2016. 209 S. 88 (1)(14) New Zealand’s Outer Space and High-altitude Activities Act 2017. 210 S. 10(1)(8) read with S. 12(5) Austrian Outer Space Act, 2011; Article 4(3) read with Article 5 of the Dutch Space Objects Registry Decree 2007; S.4 Swedish Decree on Space Activities 1982; the UK Registry of Space Objects; S.76-79 Australian Space Activities Act 1998; Article 72 (3) Indonesia Law on Space Activities 2013; Article 8Korean Space Development Promotion Act, 2005; Article 19 of the Brazilian Regulations, Edict 5/2002. 211 S.10 Austrian Outer Space Act 2011. 212 Article 8(3) Korean Space Development Promotion Act, 2005.

72

3 State Practices Towards National Space Legislation

space object involves a nuclear power source, Belgium demands for special reference to “NPS” in red letters.213 In case of loss, deorbiting or end of space objects/flight operation an update is also to be communicated to the UN.214 Obligations under the UK Space Industry Act is now confined to the maintenance of a register of launches, wherein in relation to each launch, the register must include as much of the information as deemed appropriate including the date of the launch; the spaceport from which the launch took place; the nature of each spacecraft or carrier aircraft launched; the purpose of the launch.215 Time period as to when the requisite information is to be communicated is crucial for an effective maintenance of the registry of space object. Usually, states are silent as to the time frame during which the required information is to be communicated to the UN. The Belgium Space Law prescribes that at the time of the launch of the space object, the registration must be effective.216 “At the time of launch” has been inferred as after the launch of space object.217 In the event of any data modifications, within thirty days after the date when the operator became aware of the said modifications, the same must be communicated for a supplementary entry in the Register.218 The Austrian Outer Space Act specifies that the operator has to submit the necessary information “without delay” after the launch of the space object.219 The explanatory report to the Act further clarifies that “without delay” means that the period between the successful launch and the reach of the orbit should not exceed more than one month.220 France updates the UN registry on a biannual basis. “On the six month basis the French Ministry of Foreign Affairs transmits to the Mission Permanente of France in New York an update for the last six months on the information carried on the national registry for transmission to the Secretary-General of the United Nation”.221 The Kazakh law demands State registration within fifteen days but is silent on the time frame during which information must be communicated to the UN.222 The USA provides quarterly updates to the UN Secretary General on each space object carried

213 Article

6 the Royal Implementing Decree, 2008.

214 Article 14 (2)(6) Belgium Space Act 2005; Article 4 of the Dutch Space Objects Registry Decree

2007; the UK Registry of Space Objects. 61, the UK Space Industries Act 2018. 216 Article 14(2)(7) Belgium Space Law, 2005. 217 Jean- François Mayence, “12 Questions And 40 Points To Present The Law On Activities Relating To The Launching, Flight Operations And Guidance Of Space Objects” available at https://www. belspo.be/belspo/space/doc/beLaw/PresentLoi_en.pdf. 218 Article 14(2)(8) Belgium Space Law, 2005. 219 S. 10 Austrian Outer Space Act, 2011. 220 Unofficial Translation to the Explanatory Report of the Austrian Outer Space Act; see Irmgard Marboe, The New Austrian Outer Space Act, 61 German Journal of Air and Space Law 1/2012, p. 53. 221 Jen-Yves Trebaol, French Current Practice for the Registration of Space Objects and Unsolved Issues in Hobe/ Schmid-Tedd/ Schrogl (Eds.) Current Issues in the Registration of Space Objects 2005 Institute of Air and Space Law, p. 89. 222 Article 11(3) Kazakhstan Law on Space Activities 2012. 215 Section

3.5 Implementation of the Registration Principle

73

on the US Registry.223 Towards achieving the requirements of registration, a licencee must within thirty days of the launch furnish the requisite information.224 The Netherlands demands at least six months before the start of the space activities involving a space object, the licence holder must furnish the information on the description and function of the space object; the orbital parameters; country and location of launch; expected and actual launch date; expected and actual decommissioning date; information on the licence holder.225 This six-month time limit is necessary in order to allow the information received to be evaluated for completeness and accuracy and then incorporated in the registry in good time.226 If the information relates to the actual launch or decommissioning date or any changes to the earlier given information, the licence holder must furnish this information as soon as possible, and in any event within three weeks after this date.227 Nonetheless in special cases, exemption may be granted from this statutory time frame. The Republic of Korea has a two-step registration process. A preliminary registration of the space object must be made at least 180 days before the scheduled date of launch.228 Within 90 days after the space object reaches its planned orbit, a formal registration of the space object is to be done.229 Any changes subsequent to the preliminary registration or formal registration of space objects must be reported within 15 days of the change(s).230 After the formal registration of the space object, the Korean Government must register the object with the United Nations.231 If there are any subsequent changes in the contents, it must also be communicated to the United Nations.232 It is noticeable that in the Republic of Korea while the furnishing of information for the national registration is in a time bound manner, the furnishing of the same information to the UN is in a timeless manner. In conclusion, most states have addressed the issue of implementation of the registration principle in their national space legislation. Some states have reserved to prescribe registration requirements through implementing decree, which gives them greater flexibility. States generally seek information from the licencee as per the requirements of the Registration Convention, but nonetheless at times, states have also sought specific information, which helps them to maintain a record of space activities operating within their jurisdiction. States have also reserved residuary power to demand additional information as per the circumstance, which might be very much needed in case of deorbiting or change in the flight operation of space objects or in case of any unforeseen circumstances. Though states are diligent to seek 223 https://usspaceobjectsregistry.state.gov/pages/home.aspx. 224 S.14

CFR 415.86. 3 read with Article 4 of the Dutch Space Objects Registry Decree 2007. 226 Explanatory Memorandum to the Dutch Space Objects Registry Decree 2007. 227 Article 4 the Dutch Space Objects Registry Decree 2007. 228 Article 8(1) Korean Space Development Promotion Act 2005. 229 Article 8(5) Korean Space Development Promotion Act 2005. 230 Article 8(6) Korean Space Development Promotion Act 2005. 231 Article 9(1) SDP Act, 2005. 232 Article 9(2) SDP Act, 2005. 225 Article

74

3 State Practices Towards National Space Legislation

information from the licencees, they are generally reluctant to furnish information to the UN in a time bound manner. If States develop a practice of furnishing information to the UN in a time bound manner, it will better ensure transparency and confidence measures.

3.6 Protection of the Environment Almost all of the national space legislations have a due consideration for environment and are of the opinion that the space activities conducted under the legislation should not cause adverse harm to the environment of outer space. For sustainable use of outer space, Austria has made provision for the orderly termination of the space activity, which will ensure a debris-free environment and avoid hindrance to future space activities.233 As a licensing condition under the Austrian Space Act, the operator has to ensure that it has taken necessary measures for the mitigation of space debris.234 The obligation to mitigate space debris represents an ongoing obligation of the operator even after authorization has been granted.235 Space debris mitigation measures must be in accordance with the state of the art and in due consideration of the internationally recognized guidelines for the mitigation of space debris.236 The UNCOPUOS Space Debris Mitigation Guidelines of 2007 being an internationally recognized guideline is an inherent part of this legislation. This kind of debris mitigation approach as Austria has prescribed gives scope to accommodate future developments on debris mitigations as well. The space law of Belgium adopts both generalized and specialized measure for the protection of the environment of outer space. The operator of the space object must guarantee safety of the operations with regard to the environment, both while seeking an authorization of a space activity as well as when a space activity has been withdrawn or suspended.237 Furthermore, the Belgium Space Law mandates for an environmental impact assessment for space activities on a short-term, medium-term and long-term perspective.238 Before an authorization is granted, an initial expert study should be carried out so as to assess the potential impact on the environment on earth or in outer space of launching or operating the space object.239 After the 233 Unofficial

Translation to the Explanatory Report of the Austrian Outer Space Act; see Irmgard Marboe, The New Austrian Outer Space Act, 61 German Journal of Air and Space Law 1/2012, p. 47. 234 S. 4(1)(4) Austrian Outer Space Act, 2011. 235 S. 5 last line, Austrian Outer Space Act, 2011; Unofficial Translation to the Explanatory Report of the Austrian Outer Space Act; see Irmgard Marboe, The New Austrian Outer Space Act, 61 German Journal of Air and Space Law 1/2012, p. 49. 236 S.5 Austrian Outer Space Act, 2011. 237 Article 5(1); Article 8(9) and Article 11(5) of the Belgium Space Act 2005 read with Article 8 the Royal Implementing Decree 2008. 238 Article 7(2) the Royal Implementing Decree 2008. 239 Article 8(2) Belgium Space Act 2005.

3.6 Protection of the Environment

75

launch of the space object or during its operations, an intermediate study is to be carried out once again so as to assess the real consequences on the environment on earth or in outer space of the activities in question.240 And if at all a space object is returning to earth, a final study is to be carried out.241 The environmental impact assessment procedure is a four-step process.242 The first step is a description of the activities and their objectives, with emphasis on the technologies, components and products used for the purposes of the activities; the second step is the concern for a potential impact of the activities on the terrestrial environment, including the atmosphere and, in particular, on the natural and human environment of the place of launching; the third step is the determination of a potential impact of the activities on outer space; and the final step covers recommendations on the reduction of any adverse impact on the environment. If the space launch or operations include the use of nuclear energy, the operator has to make a declaration of it. The environmental impact study shall include a specific annexure giving details of the measures adopted in order to ensure the safety of people and the environment against the risk linked to use nuclear power sources onboard the space object.243 This annexure should include the standards laid down by international and intergovernmental technical bodies, which regulate the use of nuclear power sources, in particular in outer space, and establish the compliance of the space object’s specifications with these standards.244 In case of a space object falling back to earth, space debris is to be dealt in accordance with the applicable international standard.245 In cases where the fall is not within the jurisdiction of Belgium, an explanatory list of the applicable environmental protection standards is to be provided in an annexure.246 A generalized approach towards environmental protection is stipulated in the space legislations of Denmark, Russia, Sweden, UK, Ukraine, Indonesia, Japan, Kazakhstan and Nigeria. The Danish Space Act has been considered to be a mature piece of legislation that has drawn inspiration from the model space law of the ILA247 ; but in terms of environmental safeguards, it seems the Danish Space Act has ignored the ILA Model Law recommendations. The Danish Act merely mentions that the approval of a space activity requires documentation on environment protection248 and debris management.249 Environmental protection is vital for all space activities. Rather than leaving environmental safeguard measures to be determined 240 Article

8(4) Belgium Space Act 2005. 8(5) Belgium Space Act 2005. 242 Article 7 the Royal Implementing Decree 2008. 243 Article 7(4) the Royal Implementing Decree 2008. 244 Article 7(4) the Royal Implementing Decree 2008. 245 Article 7(2) the Royal Implementing Decree 2008. 246 Article 7(3) the Royal Implementing Decree 2008. 247 Peter Hulsroj & Anja Nakarada Pecujlic, New in the Nest: The Danish Space Act in 41Air and Space Law Journal, 6/2016, p. 503. 248 S. 6(1)(4) Danish Space Act 2016. 249 S. 6(1)(5) Danish Space Act 2016. 241 Article

76

3 State Practices Towards National Space Legislation

by the respective operators, the Danish Act could have expressly prescribed the specific environmental safeguards like environmental impact assessment and debris mitigation alike the ILA Model Space Law proposes.250 The Danish legislation is a very nascent legislation (2016); hopefully, the implementing decree to the Act might reflect later on specific environmental protection measures on the lines of French space legislation. The 2008 French Space Operation Act mentions that the authorization requirements include requirements for the protection of the environment and risks related to space debris.251 In pursuant to the Act, “the French Degree on Authorization” and the “French Order on Technical Regulations” explicitly mandate an environmental impact assessment and prescribe for appropriate environmental risk mitigation measures including technical requirements to the production of space debris.252 Similarly, New Zealand obliges the applicant to set out a debris mitigation plan.253 The 1986 UK Outer Space Act, which applies only to space activities carried out outside the UK, does not contain any specific environmental protection requirement but as a licence requirement may be conditions may levied.254 Nonetheless, the 2018 UK Space Industry, which exclusively applies to space activities carried in the UK, requires “assessment of environmental effects” prior to authorization.255 As an authorization requirement, conditions governing the disposal of any payload in outer space on the termination of operation, conditions to prevent the contamination of outer space or adverse changes in the environment may also levied.256 With respect to Australia, it is mandatory that all necessary environmental approvals under Australian law have been obtained and operators have an adequate “environmental plan”.257 A space object containing fissionable material requires written approval from the Minister.258 Similar conditions have been levied for return 250 Refer

the ILA Model Law. Article 7 – Protection of the environment (1) Space activities shall not cause environmental damage to the Earth and outer space or parts thereof, either directly or indirectly. (2) An environmental impact assessment is required before the beginning of a space activity. (3) Details of the environmental impact assessment shall be laid down in an implementing decree/regulation. Article 8 — Mitigation of space debris (1) Space activities should be carried out in such a manner as to mitigate to the greatest possible extent any potential space debris. (2) The obligation of paragraph 1 includes the obligation to limit debris released during normal operations, to minimize the potential for in-orbit break-ups, to prepare for post-mission disposal and to avoid in-orbit collisions in accordance with international space debris mitigation standards. 251 S.5 French Space Operation Act 2008. 252 S.1(II) French Degree of Authorisation read with S.7(1),8(1) and S.21, S.33, S.34, S.40 of the French Order on Technical Regulations. 253 Order 6, Explanation to the Order Amending the Dutch Space Activities License Application; S.9(1), S.17(1), S.25(10) and S.33 (1) New Zealand Space Activities Act 2017 read with New Zealand Licenses and Permits Regulations. 254 R. Tremayne-Smith, Environmental Protection and Space Debris Issues in the Context of Authorization in Von der Dunk (Ed.) National Space Legislation in Europe, 2011 Martinus Nijhoff Publishers, Pp.179-188; 188. 255 S.11 the UK Space Industry Act, 2018. 256 Schedule 1, the UK Space Industry Act 2018. 257 S. 18(b), 1998 Space Activities Act. 258 S. 29(c), 1998 Space Activities Act.

3.6 Protection of the Environment

77

of overseas launched space objects in Australian territory;259 however, for procuring overseas launch, the environmental conditions seem to be comparatively a bit relaxed. An overseas launch certificate may be issued if “the probability of the launch or launches causing substantial harm to public health or public safety or damage to property is sufficiently low”. Since the overseas launch may be under the jurisdiction of some other launching state, a bit relaxation in obtaining launch certificate may not be problematic because the respective overseas state will anyway bear the international responsibility of authorization and supervision. But if the overseas State does not have a strong environmental safeguard policy, it might be a concern. Due to relaxed or no environmental protection conditions in a foreign State, a private entity might be motivated to seek overseas launch or from the launch facility available in such territory rather than procuring a launch from the territory of Australia and might contribute to “trans-boundary harm”.260 It is desirable that the “environmental plan” for all space activities including launch and return of space objects must include arrangements for mitigation and remediation of any adverse effects of the space activity especially for space debris. It must also include pre- and post-space launch/return environmental impact assessments. Brazil considers environmental damage within the meaning of “damage”.261 The authorization regulations mandate that each authorization of space launch will evaluate the environmental impact.262 Though it does not talk about debris mitigation, Brazil has issued technical regulations on environmental safety.263 The Canadian Remote Sensing Space System Act has given significant importance to protection of the environment. Remote sensing activities in Canada must not cause harm to the environment, public health and the safety of the persons and property. A licence may not be issued without having approved system disposal plan for the licenced system.264 The system disposal plan requires estimating the potential hazard from space debris and the strategy to mitigate hazard for each remote sensing satellite of the remote sensing system.265 Furthermore, Canada also supports the 259 S.43(c) & S.43 (d) of the 1998 Space Activities Act read with S.5.01 of the 2001 Space Activities

Regulation. Trail Smelter Arbitration (United States v. Canada) 3 RIAA 1907 (1941). 261 Article 5 of the Regulations, Brazil Edict 27/2001. and Article 4, Paragraph 2 of the Regulations, Brazil Edict 5/2002. 262 Article 10 of the Regulations, Brazil Edict 5/2002. 263 José Monserrat Filho, Regulation of Space Activities in Brazil in Ram S. Jakhu National Regulation of Space Activities, 2010, Springer Publication, p. 78. 264 S. 9 CRSSS Act. 265 Schedule 1, S.12 CRSSS Regulation - The remote sensing satellite disposal plan must furnish information pertaining to the potential hazard from space debris and the strategy to mitigate that hazard for each remote sensing satellite of the remote sensing space system, including the method of disposal that is proposed for each satellite and the reliability of that method; the estimated duration of the satellite disposal operation; the probability of loss of human life and how it was calculated; the amount of debris expected to reach the surface of the Earth, the size of the impact area expressed in square meters, and how they were calculated; the geographic boundaries of the likely debris re-entry impact area, the confidence level of the determination of the boundaries and how the boundaries and confidence level were calculated; the identity and quantity of hazardous material and dangerous 260 Refer

78

3 State Practices Towards National Space Legislation

2007 UNCOPUOS Space Debris Mitigation Guidelines266 but has not been explicitly implemented in Canadian legislation.267 In the USA, an environmental review in accordance with the criteria of the National Environmental Policy Act (NEPA) is carried out to ensure that the launch does not have a significant impact on the environment.268 The Code of Federal Regulations (CFR)269 requires that in addition to compliance with the requirements of the NEPA,270 it must also comply with requirements of the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of NEPA,271 and the required procedures for considering environmental impacts.272 As a licensing requirement for operating remote sensing satellites, the licencee must propose satisfactory post-mission disposal of satellite in space so as to reduce the orbital debris.273 The US Government has also developed orbital debris mitigation practices.274 These practices include control of orbital debris released during normal operations, minimization of debris generated by accidental explosions, selection of a safe flight profile and operational configuration, and post-mission disposal of space structures. In order to ensure space activities undertaken by the private entities meet the highest standard of environmental safeguard, environmental impact assessment and debris mitigation measures must be incorporated within the scope of national space legislation.275 Environmental impact assessment and debris mitigation measures being technical and procedural in nature details of the procedure may be levied under the implementing decree.

goods contained in each satellite at the end of its mission life, the quantity expected to reach the surface of the Earth on re-entry and how the quantities were calculated; the orbital elements and epochs of the proposed disposal orbits for each satellite; and an assessment of space debris expected to be released from each satellite during normal operations by explosions, by intentional break-ups and by on-orbit collisions, and the measures proposed to mitigate the production of space debris. 266 Report of the UNCOPUOS, UN Doc. A/62/20 (June 26, 2007). 267 Bruce Mann, Current Status and Recent Developments in Canada’s National Space Law and its Relevance to Pacific Rim Space Law and Activities in Journal of Space Law Vol. 35, No.2, 2009, p. 515. 268 Francis Lyall and Paul B. Larsen, Space Law A Treatise 2009 Asghate Publication, p. 493. 269 S. 420.15 CFR. See S. 431.91 CFR for environmental requirements for reusable launch vehicles. 270 S.4321, 42 US Code. 271 40 CFR Parts 1500-1508. 272 FAA Order 1050.1D. 273 S.60122(b) (4), 51US Code read with S.960.11(b)(12),15 CFR. 274 U.S. Government Orbital Debris Mitigation Standard Practices available at https://www. orbitaldebris.jsc.nasa.gov/library/usg_od_standard_practices.pdf. 275 Explanatory note to Article 7 & Article 8 of the Sofia Guidelines for a Model Law on National Space Legislation of the International Law Association (ILA).

3.7 Other Aspects

79

3.7 Other Aspects There exists diversity in approaches of the various national space legislations because they have been drafted as per the specific requirements and often based on type of space activity prevalent in a particular country.276 States have also introduced aspects relevant to the space applications (telecommunication, navigation, remote sensing, etc.) aspects relevant to return of astronauts, aspects relevant to export control, aspects relevant to intellectual property, aspects relevant to space administration including financing aspects. Under this section, some of the distinct aspects, which could be relevant from the drafting perspective, will be discussed. It is not intended to highlight each and every unique feature of various national space legislations, as they may be relevant only from the respective country perspective and not from the India perspective. In accordance with the Rescue Agreement, the Belgium Space Law has prescribed a domestic mechanism for return of space objects and personnel’s.277 Any space object, which is found on the Belgian territory or in a place subject to Belgian jurisdiction, has to be returned without delay to the competent authorities. Belgium has to undertake all necessary measures to safeguard and identify the object(s) return them to the State of registry. The Belgium Law only reiterates its obligation under the Rescue Agreement. The Law is silent as to the costs involved in identification, safeguard and return of space objects. Similarly in furtherance to the Rescue Agreement, South Korea also statutorily recognizes its duty towards the rescue of astronauts and the return of space object.278 Damage according to the Brazilian Edicts means: “loss of life, personal injuries or other damages to health, loss of Sate property, or of natural or juristic persons, including international intergovernmental organizations, as well as environmental damages”.279 Though the definition appears to be similar to the wording used in the Liability Convention, but in effect it is wider as it included damages to environment as well. This has been deliberately introduced so as to safeguard the environment in the entire Alcantara region.280 Inclusion of environmental damage within definition of “damage” presents a useful contribution and may be a good example to other countries that are in process of drafting their national space law.281 In order to fulfil the requirements of Articles III and IV of the Outer Space Treaty, the Ukraine Space Activities Act fixes a list of prohibitions that are to be considered 276 Irmgard

Marboe, National Space Law in Frans von der Dunk and Fabio Tronchetti (Eds.) Handbook of Space Law, Edward Elgar Publishing, 2015, p. 184. 277 Article 17 Belgium Space Law 2005. 278 Article 22 & 23 SDP Act, 2005. 279 Article 5 of the Regulations, Edict 27/2001. and Article 4, Paragraph 2 of the Regulations, Edict 5/2002. 280 José Monserrat Filho, Regulation of Space Activities in Brazil in Ram S. Jakhu National Regulation of Space Activities, 2010, Springer Publication, p. 76. 281 Olavo de O. Bittencourt Neto, Private Launch Activities on Brazilian Territory – Current Legal Framework in 58 German Journal of Air and Space Law 3/2009, p. 434.

80

3 State Practices Towards National Space Legislation

while undertaking any space activity in Ukraine.282 Among others, the following are expressly forbidden: injection into orbit or an orbital slot of nuclear weapons and all other kinds of weapons of mass destruction by any means and testing such weapons in space; using space technologies to affect the space environment for military and other reasons to make it unsafe for human purposes; using the Moon and other celestial bodies for any military purposes.283 The USA has broadly three distinct facets of commercial space activities—launch services, communication satellite and the remote sensing satellite. Instead of regulating all aspects of space activities under one piece of legislation, it has preferred separate legislation for each of them. Accordingly, the USA has adopted distinct licensing regimes pertaining to its respective specific activity. The Communication Act of 1934 governs communications satellite, and a licence under this is required for a private entity to operate a satellite.284 Title 51 assimilates the National Aeronautics and Space (NAS) Act of 1958 that created the National Aeronautics and Space Administration (NASA)285 as the institution to execute the US civil space programme; the Commercial Space Launch (CSL) Act of 1984,286 that promoted commercial space launch by the private sector; the Land Remote Sensing Policy Act of 1992287 that regulated the Landsat programme (data generated by the US Governmental remote sensing satellite) as well as the licensing of private remote sensing systems. Title 51 does not modify or repeal existing laws; rather, it restates existing law in a manner that adheres to the policy, intent and purpose of the original laws, while improving the organizational structure of the law and removing imperfections.288 For inventions made or used in outer space, the application of the Intellectual Property Code of France has been extend to cover the same.289 National space legislation is not a self-contained legal regime in themselves rather states have made a number of other Federal laws applicable to space activities, for example satellite telecommunications and satellite frequencies290 are regulated by the French Code of Post and Electronic Communications. In Sweden, the Swedish Penal Code is applicable for contravention of the Act or licensing conditions and for determining the

282 Frans

G. von der Dunk and Sergei A. Negoda, Ukrainian National Space Law from an International Perspective in Space Policy 18 (2002), p. 18. 283 Article 9, 1996 Ukraine Law on Space Activity. 284 S.301, 47 US Code. 285 Now Chapter 201 in 51 US Code. 286 As amended in 1988,1998 and 2004. Now Chapter 509 in 51 US Code. 287 Now Chapter 601 in 51 US Code. 288 S. 2, 51 US Code. 289 Article 22 FSOA 2008. 290 Philippe Achilleas, French Space Legislation Development -The New French Legislation on Satellite Frequencies Assignments in Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space 2005 AIAA, pp. 130–133.

3.7 Other Aspects

81

extent of liability for damages the Tort Liability Act 291 can be referred to.292 In the UK, the Telecommunications Act 1984, the Broadcasting Act 1990 and the Wireless Telegraphy Act 1949 also have a bearing on space activities.293 Dann explains that the various licensing requirements operate in parallel: so that, for example, “the holder of a license to launch a broadcasting satellite is not exempt from any applicable requirement to obtain a broadcasting license; and the holder of a license to run a satellite telecommunication system must also hold a relevant wireless telegraphy license”.294 Harmonization of federal laws with national space legislation is juxtaposed for effective authorization and supervision of space activities. “The role of law is not merely to regulate rights and obligations of subjects, it also provides norms and institutional mechanism to promote the policy goals of the community”.295 National space legislation must not only prescribe rights and obligations of non-governmental entities, but it must also prescribe the institutional mechanism to promote them.296 It should prescribe the inherent mechanism for their growth and self-reliance. A significant governmental support will be needed not only during the initial phase, but also even in later phases, so long they undertake space activities.297 Some of the space legislations have an inbuilt mechanism to promote private participants.298 For example, under the jurisdiction of Austria, if a space activity is in the public interest, i.e. serve science, research or education, a lower sum of insurance to the extent of complete waiver taking into account the risks connected to the activity and the operator’s financial capacity may be granted. If an activity has no risk or minimum risk, the operator has a proven credibility with financially stability and is self-sufficient to meet up the damages; in such cases, levying insurance conditions will impose commercial burden on the operator.299 Lowering/waiving off insurance serves as an incentive for non-governmental entities to invest in space 291 1972:207. 292 Niklas

Hedman, Swedish Space Legislation in Proceedings of the United nations/ International Institute of Air and Space Law Workshop on Capacity Building in Space Law, 2003 United Nations ST/SPACE/14 p. 114; Niklas Hedman, Swedish Legislation on Space Activities in Christian Brünner/ Edith Walter (Eds.) National Space Law, 2008 Böhlau Verlag, p. 77. 293 See Francis Lyall, UK Space Law in Proceedings of the thirty-fifth Colloquium on the Law of Outer Space 1993 AIAA, p. 385-393; Phillip Dann, Law and Regulation of Satellite Communications in 20 Journal of Space Law, No. 1 1992, pp. 1-25; Julian Hermida, Legal Basis for National Space Legislation, 2004 Kluwer Academic Publishers, p. 130-132. 294 Phillip Dann, Law and Regulation of Satellite Communications in 20 Journal of Space Law, No. 1 1992, p. 2. 295 V. S. Mani, Space Policy and Law in India, Journal of Space Law, Volume 35, No. 2, 2009. 296 V. S. Mani, Space Policy and Law in India in Journal of Space Law, Vol. 35, No. 2, 2009, p. 631. 297 Steven Freeland, When Laws are Not Enough – The Stalled Development of An Australian Space Launch Industry in (2004) 8(1) University of Western Sydney Law Review 80. 298 Kumar Abhijeet, Space Legislation for Developing Countries, Lessons from Europe in 2015 Proceedings of the International Institute of Space Law, 2016 Eleven International Publishing, p. 578. 299 Unofficial Translation to the Explanatory Report of the Austrian Outer Space Act; see Irmgard Marboe, The New Austrian Outer Space Act, 61 German Journal of Air and Space Law 1/2012, p. 48.

82

3 State Practices Towards National Space Legislation

activities of scientific, research or educational value strengthening human resource development of Austria.300 Similarly, the French Space Operation Act mandates that “the Government shall not present a claim for indemnification if the damage was caused by a space object used as a part of an operation authorized according to the terms of the present Act and resulting from act targeting governmental interests”.301 Such a blanket state guarantee is likely to provide a competitive advantage.302 The 1996 Ukraine Law on Space Activities creates a fund for the financing of national space activities.303 “Space activity pursued for scientific or economic purposes for which the State is the customer shall be financed on the basis of the Ukrainian All-State (National) Space Programme and shall be covered by a special item in the Ukrainian National Budget …. Financing shall be effected through State customers of works for the design and use of space technology and shall be allocated among contractors in accordance with State contracts”. Such financing mechanism shall motivate and create a competition amongst the entrepreneurs to take up scientific activities, which has an economic value. Generally, all aspects of space activities must be brought under the garb of a single comprehensive legislation, but at times due to distinct nature of the space activities and the legalities involve, it is desirable to have separate legislation regulating a particular kind of space activity.

3.8 Conclusion The practice of spacefaring states suggests that national space legislation is inevitable to privatization of space activities. There exists diversity in approach because the respective national space legislation has been drafted as per the specific requirements of the space activity prevalent in a particular country.304 Based on state practices towards national space legislation, it can be concluded that national space legislation is largely in response to the international obligations, but nonetheless states often have also enacted it as a result to their own domestic requirement. The basic tenets of national space legislation include scope and application, authorization and continuing supervision of space activities, indemnification and insurance requirements, registration and transfer of the space objects, and environmental safeguards.

300 Irmgard

Marboe, National Space Law in Frans von der Dunk and Fabio Tronchetti (Eds.) Handbook of Space Law, Edward Elgar Publishing, 2015, p. 166. 301 Article 14 FSOA 2008. 302 Irmgard Marboe, National Space Law in Frans von der Dunk and Fabio Tronchetti (Eds.) Handbook of Space Law, Edward Elgar Publishing, 2015, p. 159. 303 Article 11, 1996 Ukraine Law on Space Activity. 304 Irmgard Marboe, National Space Law in Frans von der Dunk and Fabio Tronchetti (Eds.) Handbook of Space Law, Edward Elgar Publishing, 2015, p. 184.

3.8 Conclusion

83

The scope of any legislation provides clear answers to the questions as to whom does the legislation apply, what activities does it apply to and what is its limitation. To this extent, national space legislations usually cover ratione loci, ratione materiae and ratione personae. Nonetheless, there is a significant variation in the approach. Variation is inevitable because despite national space legislation being largely in response to international obligation of states, it has significantly catered the national requirements as well. Every state has its own distinct space policy pursuant to which their national space legislation has been enacted. Some intend to regulate specific space activity while many regulate all activities in outer space in general. An extremely narrow approach may not be adept to changing activities in space. For example, the Australian Space Activities Act has been considered to be sophisticated, aptly addressing licensing mechanisms for commercial space launches (and returns) and the financial responsibility for liability.305 But despite its name and claim to generally deal with space activities, the Act deals only with the authorization of launch including operation of launch sites and return of space objects to earth.306 The other side of the commercial space activity, i.e. the operation of satellites, has not been covered under this Act. It is desirable that the legislation must be flexible enough to accommodate future activities otherwise the state may often have to amend the scope of their national space legislation as the Netherlands had to do to include regulation of small satellites within the scope of the Dutch space legislation. State practice suggests that the majority of them regulate all space activities, and the material scope of national space legislation includes launch, operation and guidance of space objects into outer space including their return. Ratione loci of national space legislation include activities undertaken from the national territory. Nationals of a state located beyond the national territory can undertake a space activity. To cover such situations, generally national space legislation has extended the ratione personae. Therefore, the scope of national space legislation must have generalized approach to activities in outer space. It must regulate activities undertaken from its territory and beyond including the high seas and aircraft, if its nationals are involved. Few states like Australia, Kazakhstan, Denmark and others address the scope of their respective national legislation by demarcating the boundary of outer space from air space. This gives certainty to the applicability of their national space legislation. If an activity is taking place or intended to be carried at an altitude of 100 km and beyond it will be presumed to be a space activity. National space legislation intends to regulate activities of their nationals in outer space and so, where does outer space commence must be known without any dilemma.

305 Steven

Freeland, When Laws are Not Enough – The Stalled Development of An Australian Space Launch Industry in University of Western Sydney Law Review, (2004) 8(1), p. 80. 306 Frans G. von der Dunk, Launching from ‘Down Under’ the New Australian Space Activities Act of 1998 in Proceedings of the Forty-Third Colloquium on the Law of Outer Space, 2000, AIAA, p. 136.

84

3 State Practices Towards National Space Legislation

Article VI of the OST prescribes that states must authorize and continuously supervise the activities of the non-governmental activities. Though Article VI of the OST does not create an obligation upon states to have national space legislation, nonetheless it serves as an effective means for authorization and supervision of space activities. The majority of the states authorize all space activities through a single licence, while a few issue multiple licences depending upon the activity. A multiple licence helps an effective supervision of space activities, as there are multiple opportunities to examine and review the activity for which authorization has been sought. The general licensing conditions remain the same irrespective of whether it is single licensing or multiple licensing regimes but often variation is also experienced in the authorization conditions. Generally, an activity for which authorization has been sought must not jeopardize national security and international obligation of the state; the operator must have sufficient technical and financial stability; it must not cause adverse harmful effect to the environment; the operator must indemnify the state in case the state is held liable are the standard conditions of authorization. Some states merely prescribe that all space activities require authorization and leave the conditions of authorizations to be prescribed later under the implementing decrees. An implementing decree gives flexibility and is desirable to incorporate additional conditions but major conditions must be levied through the parent statute. Generally, a licence is issued for a limited period of time and thereafter renewal is needed. Continuing supervision of space activities ensures that the condition of authorization is being followed not only at beginning of an activity but throughout the life of the activity, thereby enabling the state to avoid any unnecessary liability. “Continuing supervision” of space activities is usually achieved by empowering the authorities to seek necessary information from the licencee. For this purpose, appropriate authorities may inspect, search, seize or issue directions. If situations demand the supervisory authority may even suspend the licence or impose sanctions, which serve as a major deterrent for the licencee as to not to deviate from the authorization conditions. Very often the same body does authorization and supervision of space activities but if it is done through two distinct independent bodies, it will ensure greater check and balance. States bear international liability for damage caused by space objects. To safeguard financial interests, states usually have reserved their right to seek recourse. If a state has to pay for damages caused by space objects, then private entities have to indemnify the government. Most states usually seek indemnification for a limited sum (generally 60 million euro) and beyond that states themself bear the liability. A shared liability is very much desirable because an unlimited liability may either dissuade the private enterprise to take up space activity or may make them bankrupt. A limited liability is a guarantee that the state will help them if any liability comes in future. The benefit of limited liability is applicable only when the respective private enterprise has exercised due diligence, complied with the licensing conditions and statutory requirements. In this way, a limited liability clause serves as an enabling factor to ensure conditions of authorization are strictly complied at all stages. As liability is future oriented, it is quite possible that a private enterprise may not have sufficient capital to repay, and in such situations, the indemnification clause may not help the

3.8 Conclusion

85

government. To protect the financial interest of the state and the private enterprise, the standard recommended practice is compulsory third-party insurance coverage. The insurance sum is usually sixty million Euros or as per the risk involved. So if the risk is very small, the insurance amount may also be waived off. In case the government has to pay for damages, the liability of private enterprise is limited to the insurance sum. A financial guarantee in any other form can suffice the need of insurance. Transfer of the space objects does not find specific mention in most national space legislation; nevertheless, state practice suggests that any transfer is not unconditional. The standard approach is transfer of space object from one operator to another will require a prior approval as if the transferor is seeking authorization for the first time. Usually, authorization of space activities is granted on an individual non-transferable basis. Any subsequent change of ownership or transfer of a space object will require approval from the authorities that may levy additional conditions in order to protect national interest, safety, security and international obligations. Where a transfer is interstate, it will be desirable to have an intergovernmental agreement, as has been experienced in the case of the Belgium and Danish space legislation. An intergovernmental agreement will ensure greatest assurance for all future responsibility. If at all liability arises in the future, the transferee has the right of recourse pursuant to the agreement. Few countries regulate the transfer of space object through registration requirements. If a space object is transferred to a foreign entity, then the authorities must be communicated and it has to be de-registered from the national registry. As far as the registration of space objects is concerned, states seek information from the licencee as per the requirements of the Registration Convention. States maintain a national registry of space objects and do communicate the UN of the establishment of such a registry. The operator is under an obligation to communicate any subsequent change or modification of data, and the national registry is updated accordingly. Space debris and environmental protection is global concern. Almost all states seem to be in principal in agreement that space activities conducted under their legislation must not cause harm to the environment of outer space. However, not all states prescribe specific measures for environmental safeguard in their national space legislation. They leave it to be prescribed later either under the implementing decree or as an authorization condition. A good practice has been reflected in the Austrian and Belgium space legislation. In order to assess the potential impact on the environment, the Belgium space legislation has prescribed a three-stage environmental impact assessment—prelaunch, post-launch and if at all space object is returning to earth. Some space legislation also prescribes for space debris mitigation measures. Debris mitigation measures and EIA are important tools for environmental protection, and national space legislation must consider them for effective protection of the environment. Except for Belgium and the South Korea, no other states have statutorily recognized its duty towards the rescue of astronauts and return of astronauts. A statutory non-recognition of this duty does not mean a State does not intend to abide by its international commitment. But a statutory recognition helps them to better discharge

86

3 State Practices Towards National Space Legislation

this duty as it binds the private entities towards the state’s international obligation and also helps the state to overcome any national barrier that may be a hurdle in effective discharge of international obligation. Ukraine has given effect to Article III and Article IV of the OST whereby it reiterates that space activities are to be carried in accordance with international law. It can be inferred that national space legislation is helpful not only with regard to ensuring compliance with Article VI of the OST but may be also with regard to other international norms. Besides addressing the requirements of international law, national space legislation must also cater the needs of non-governmental entities because the larger objective of national space legislation is to promote privatization of space activities. A limited liability is certainly desirable for sustainable private space activities. A good practice is suggested in the Austrian and French space legislations. Under Austrian law, an insurance requirement may be waived off if the proposed space activity for which authorization has been sought serves science, research or education. In France, the government serves as surety for damages caused by space object which were authorized in the governmental interest. This kind of statutory promise builds confidence and motivates the commercial enterprise to invest in space ventures.

Chapter 4

Legal Regime for Space Activities in India

India entered the space age post-Sputnik, but culturally, India has an age-old tradition of space studies. The notion of the movement of heavenly bodies and the course of the year can be found in the ancient Indian text the Vedas.1,2 One can find tales about cosmic activities even in Ramayana and Mahabharata.3,4 However, scientific astronomy in India was at its peak only in the fifth century under the great astronomer–mathematician Aryabhata who figured out that the earth revolves around the Sun.5 The first Indian Satellite is named in his honour.6 From the eighteenth century onwards with the construction of the observatories and the astronomical clocks, one can find growth of modern astronomy in India.7 Of historic interest, the Moghul ruler Hyder Ali and Tipu Sultan of Mysore in the late eighteenth century had used rockets as weapons. After Tipu lost the battle with the British (1792), Tipu’s rockets were captured and transported to England for scientific analysis just like the 1 The

Vedas are the ancient scriptures of India that date back around 1500 B.C. Sheehan, The International Politics of Space, Rutledge Taylor and Francis Group, 2007, p. 144; also refer Subhash Kak, Astronomy and its Role in Vedic Culture in G. C. Pande (Eds.) Science and Civilization in India, Vol. 1 Munshiram Manoharlal, Delhi, 2000, Pp. 507-524; Subhash Kak, Concepts of Space, Time, and Consciousness in Ancient India available at https://cds.cern.ch/ record/381232/files/9903010.pdf. Also refer Brain Harvey et al., Emerging Space Powers – The New Space Programs of Asia, the Middle East and South America, 2010 Springer Publications, p. 141. 3 Ramayana and Mahabharata are one of the largest ancient epics in the world literature. 4 Brain Harvey et al., Emerging Space Powers – The New Space Programs of Asia, the Middle East and South America, 2010 Springer Publications, p. 141. 5 R. K. Kochhar, The Growth of Modern Astronomy in India 1651-1960, Vistas in Astronomy, Vol. 34, 1991, Pp. 69-105; Brain Harvey et al., Emerging Space Powers – The New Space Programs of Asia, the Middle East and South America, 2010 Springer Publications, p. 141. 6 Aryabhata was the first Indian satellite built by ISRO. It was launched on 19 April 1975 from the then Soviet launch facility. Refer U. R. Rao “Origins of Satellite Technology in ISRO – The Story of Aryabhata” in P.V. Manoranjan Rao (Eds) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India p. 715. 7 R. K. Kochhar, The Growth of Modern Astronomy in India 1651-1960, Vistas in Astronomy, Vol. 34, 1991, Pp. 69-105. 2 Michael

© Springer Nature Singapore Pte Ltd. 2020 K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6_4

87

88

4 Legal Regime for Space Activities in India

Americans and the then Soviets did post-World War II (1945) with the German V2 rockets.8,9 “Two specimen of these rockets captured by the British artillery expert Sir William Congreve are still preserved in the war museum in London”.10 Unlike the USA and the then USSR, India’s entry in space was not borne out of the military and strategic necessity, but for the socio-economic development of the country.11 Dr. Vikram Sarabhai, regarded as the father of the Indian space programme, envisaged that societal problems in India could be addressed through space. In his words, “There are some who question the relevance of space activities in a developing nation. To us, there is no ambiguity of purpose. We do not have the fantasy of competing with the economically advanced nations in the exploration of the Moon or the planets or manned space flight. But we are convinced that if we are to play a meaningful role nationally, and in the community of nations, we must be second to none in the application of advanced technologies to the real problems of man and society”.12 Before discussing the legal regime for space activities in India, a brief reflection on the humble background of India’s entry in the space age is necessary because national space legislation must be seen not only as a problem of international space law but also with regard to legal issues that arise out of various space activities in India. This chapter focuses on three major aspects: first is a brief historical background of the Indian space programme elucidating the journey from conception to the current state of technological development, application and activities in outer space. The second part is a reflection on the space governance and legal regime for space activities in India. The third part advocates a national space legislation of India, the hypothesis being that there may be circumstances where an international obligation of India cannot be fulfilled without a specific national law.

8 V2

rockets were the world’s first long range ballistic missile that also laid the foundation of space vehicles. 9 Gowarikar Vasant & B. N. Suresh, History of Rocketry in India, Acta Astronautica Vol. 65, 2009, p. 1515. 10 U. R. Rao, India’s Rise as a Space Power, 2014 Foundation Books, p. 2.; also refer Brain Harvey et al., Emerging Space Powers – The New Space Programs of Asia, the Middle East and South America, 2010 Springer Publications, p. 141. 11 Rajaram Nagappa, Space Security in India in Kai-Uwe Schrogl et al. (Eds.) Handbook of Space Security, Vol.1, 2015, Springer Reference, p. 466. 12 Dr. Vikram Sarabhai on 2 February 1968 on the occasion of dedication of Thumba Equatorial Rocket Launching Centre to the United Nations.

4.1 Historical Background

89

4.1 Historical Background 4.1.1 Lift-off of the Indian Space Programme In 1961, the Government of India entrusted the responsibility for space research to the Department of Atomic Energy (DAE).13 A year later in 1962, the DAE set up the Indian National Committee for Space Research (INCOSPAR), with Dr. Vikram Sarabhai as Chairman, to organize a national space programme.14 Under the aegis of INCOSPAR, the very same year Thumba Equatorial Rocket Launching Centre was set up in the Southern-most tip of India (State of Kerala).15 At that time, Thumba was a hamlet with the Church of Mary Magdalene as only concrete building. The church served as the main office for the scientist in the early stages of the Indian space programme.16 With the launch of the first sounding rocket Nike Apache from Thumba on 21 November 1963, the birth of the Indian space programme took place—a stupendous fruit of international space cooperation.17 For this launch, all that was required came from outside India; the rocket and tracking equipment from the USA, computers from Russia and the payload from France.18 Recognizing the growing demand and importance of space activities in 1969, the Indian Space Research Organization (ISRO) superseded INCOSPAR, and an independent Space Commission and Department of Space (DOS) was constituted in the year 1972.19

13 P. V. Manorajan Rao and Radha Krishnan, A Brief History of Rocketry in ISRO, 2012, Universities Press (India) Private Limited; Asif A. Siddiqui, Science, Geography, and Nation: the Global creation of Thumba in History & Technology –An International Journal, 2016, Routledge Taylor Francis Group, Pp.1-32. 14 P. V. Manorajan Rao and Radha Krishnan, A Brief History of Rocketry in ISRO, 2012, Universities Press (India) Private Limited; Asif A. Siddiqui, Science, Geography, and Nation: the Global creation of Thumba in History & Technology –An International Journal, 2016, Routledge Taylor Francis Group, Pp.1-32. 15 For scientific and geographical advantage Thumba was choosen as the rocket launching center. For more details refer Vikram A. Sarabhai, Significance of Sounding Rocket Range in Kerala in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, Pp. 100-114. 16 Today the Church of Mary Magdelana is a well-preserved impressive space museum named in the memory of Dr. Vikram Sarabhai. http://www.isro.gov.in/about-isro/genesis. 17 U. R. Rao, India’s Rise as a Space Power, 2014 Foundation Books, p. 8. 18 P. V. Manorajan Rao (Eds), From Fishing Hamlet to Red Planet, 2015 Harper Collins Publisher India, p. 27. 19 R. R. Daniel, Space Science in India, Indian Journal of History of Science, 27(4), 1992 Pp. 485499.

90

4 Legal Regime for Space Activities in India

4.1.2 Ascent of the Indian Space Programme Since the launch of the first sounding rocket from Thumba, India has been striving to develop indigenous space technology. With the successful launch of the Aryabhata on 19 July 1975, India joined the select group of nations capable of designing, manufacturing and launching sophisticated space technologies.20 This launch was procured free of cost from the then USSR as at that point of time India did not have its indigenous launch capability.21 Convinced of the need to attain self-reliance in launching technologies, India successfully injected the Rohini 1 satellite into a near earth orbit on 18 July 1980 travelling on board the Satellite Launch Vehicle-3 (SLV-3).22 The culmination of the SLV-3 constituted a significant landmark in India’s launch vehicle programme as it reposed confidence in developing advanced launch vehicle technologies such as the Augmented Satellite Launch Vehicle (ASLV),23 the Polar Satellite Launch Vehicle (PSLV)24 and the Geosynchronous Satellite Launch Vehicle (GSLV).25,26 Today, many Indian built satellites have been successfully launched with indigenous launch vehicles. In the words of the late Dr. A. P. J. Abdul Kalam, former President of India, “after the success of SLV-3, ISRO has carried out many spectacular missions in space technology and applications, of which the entire nation is proud”.27 The development has progressed even to commercial launches and satellite

20 U.

R. Rao, India’s Rise as Space Power, 2014 Foundation Books, p. 43.

21 U. R. Rao, Origins of Satellite Technology in India – The Story of Aryabhata in P. V. Manoranjan

Rao (et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, Pp. 702–719. 22 “Satellite Launch Vehicle-3 (SLV-3) was India’s first experimental satellite launch vehicle, which was an all solid, four stage vehicle weighing 17 tonnes with a height of 22 m and capable of placing 40 kg class payloads in Low Earth Orbit (LEO).” http://www.isro.gov.in/launchers/slv. 23 ASLV is capable of launching satellite-weighing up to 150 kg into low earth orbit. http://www. isro.gov.in/launchers/aslv. 24 PSLV is a four-stage launch vehicle capable of taking payload up to 1750 kg into a polar sun synchronous orbit. http://www.isro.gov.in/launchers/pslv. 25 GSLV is a three-stage vehicle with four liquid strap-ons capable of taking payloads up to 2500 kg in geo-synchronous transfer orbit (GTO) and 5000 kg low in earth orbit (LEO). http://www.isro.gov.in/launchers/gslv. “GSLV Mk III is designed to carry 4 ton class of satellites into GTO or about 10 tons to LEO, which is about twice the capability of GSLV Mk II.” http://www.isro.gov.in/launchers/gslv-mk-iii. 26 For development of India’s launch capabilities refer P. V. Manorajan Rao and Radha Krishnan, A Brief History of Rocketry in ISRO, 2012, Universities Press (India) Private Limited. Also refer Byrana Nagappa Suresh, The Indian Space Programme in kai-Uwe Schrogl et al. (Eds.) Handbook of Space Security, Vol1., 2015, Springer Reference, Pp. 921-938. 27 A. P. J. Abdul Kalam, India’s First Launch Vehicle in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, p.386.

4.1 Historical Background

91

applications such as remote sensing imageries,28 as the quality and reliability of its space products and services compare well globally.29

4.1.3 Facets of the Indian Space Programme The Indian space programme can broadly be considered to have three facets: space infrastructure, space transportation systems and space applications.30 The Space Infrastructure and Applications The Indian National Satellite System (INSAT), the Indian Remote Sensing Satellite (IRSS) System and the Indian Regional Navigation Satellite System (IRNSS) constitute an integral part of the space infrastructure. The INSAT, commissioned in 1983, is a series of multipurpose geostationary satellites serving telecommunications, television broadcasting, meteorology, disaster warning and search and rescue operations.31 Although it is one of the largest domestic communication satellite systems in the Asia-Pacific Region,32 there are only a few piecemeal statutes that regulate terrestrial and satellite telecommunications and broadcasting.33 The IRSS, starting with IRS-1A in 1988, is a series of earth observation satellite systems that provide periodic synoptic and systematic information pertaining to land, ocean and atmosphere and several aspects of environment. The data from these satellites is used for several applications covering agriculture, water resources, urban planning, rural development, mineral prospecting, environment, forestry, ocean resources and disaster management.34 Commercialization of remote sensing services, data processing and distribution will undoubtedly raise national security and IPR protection issues.35

28 Rajaram Nagappa, Space Security in India in Kai-Uwe Schrogl et al. (Eds.) Handbook of Space Security, Vol1., 2015, Springer Reference, p.466. 29 G. S. Sachdeva, Space policy and strategy of India in Eligar Sadeh (Eds.) Space Strategy in 21st Century – Theory and policy, 2013, Routledge Taylor and Francis Group, p. 321. 30 Answer to the Starred Question No. 288 regarding “Private Sector Participation in Space Programmes” - Statement Laid on the Table of The Lok Sabha (Lower House of the Parliament of India), March 22, 2017. 31 http://www.isro.gov.in/spacecraft/communication-satellites. 32 http://www.isro.gov.in/spacecraft/communication-satellites. 33 The 1885 Indian Telegraph Act, the 1993 Indian Wireless Telegraphy Act and others. 34 http://www.isro.gov.in/spacecraft/earth-observation-satellites. 35 Ranjana Kaul and Ram S. Jakhu, Regulation of Space Activities in India in Ram S. Jakhu (Ed.) National Regulation of Space Activities, 2010 Springer, p. 183. Also refer V. Balakista Reddy, Commercialisation of Remote Sensing and Geo-Spatial Data: The Emerging Legal Jargons in K. R. Sridhara Murthi, Potentials of Private Participation in the Indian Space Sector: Policy and Legal Needs in R. Venkara Rao & Kumar Abhijeet (Eds.) Commercialisation and Privatisation of Space, 2016 KW Publishers, Pp.37-64.

92

4 Legal Regime for Space Activities in India

India is also fast developing its indigenous satellite navigation service. GPSaided GEO augmented navigation (GAGAN) is a satellite-based augmentation system (SBAS) implemented jointly with Airports Authority of India (AAI) to provide satellite-based navigation services with accuracy and integrity required for civil aviation applications and to provide better air traffic management over the Indian airspace.36 The GAGAN is the fourth augmentation system commissioned in the world to provide seamless navigation service to civil aviation aircraft built as per International Civil Aviation Organization (ICAO) and Standards and Recommended Practices (SARPs).37 The Indian Regional Navigation Satellite System (IRNSS)/NAVIC38 is a constellation of seven satellites—three in the geostationary orbit and four in the geosynchronous orbit with an inclination of 29° to the equatorial plane. Its main goal is to provide India with reliable position, navigation and timing (PNT) services over India and its neighbourhood at low cost. Amongst its applications include terrestrial, aerial and marine navigation; disaster management, vehicle tracking and fleet management, integration with mobile phones, precise timing, mapping and navigation for hikers and drivers.39 The operational of the NAVIC for commercial use in future will necessitate addressing issues of liability and other aspects of satellite navigation.40 Besides the INSAT, the IRSS and the IRNSS, a host of satellites, are engaged in space science and planetary exploration41 and experimental purposes.42 These vibrant satellite programmes of India are comparable to any of the international

36 http://www.isro.gov.in/spacecraft/satellite-navigation. 37 Suresh Kibe, Satellite Navigation in India, in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India p.1286. 38 Upon the successful launch of the seventh satellite, IRNSS-1G, on April 28, 2016, the Honourable Prime Minister of India Mr. Narendra Modi renamed the system as NAVIC -Navigation with Indian Constellation. NAVIC is a Hindi word for sailor or navigator. 39 A. S. Kiran Kumar, Indian Regional Navigation Satellite System (IRNSS) in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, p.1549. 40 For legal issues related to satellite navigation in India refer Kumar Abhijeet et al. Legislative Situation in India Regarding Satellite Navigation in Inside GNSS, November/ December 2016, Pp. 38-43; also refer Ranjana Kaul and Ram S. Jakhu, Regulation of Space Activities in India in Ram S. Jakhu (Ed.) National Regulation of Space Activities, 2010 Springer, Pp. 184- 192. 41 Mars Orbiter Mission (MOM) is India’s first interplanetary mission to planet Mars with an orbiter craft designed to orbit Mars (launched on 5 November 2013 and entered Martian orbit on 24 September 2014. For further details on MOM refer S. Arunan, Mars Orbiter Mission in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, Pp. 1555-1606. Chandrayaan-1, is India’s first mission to Moon (launched successfully on October 22, 2008 and entered the Lunar orbit on November 8, 2014). Major discovery of the Moon mission was presence of water molecules on the surface of the Moon. For more on Moon mission refer J. N. Goswami, Chandrayaan 1 Mission – The New Face of the Moon in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, Pp. 1452-1496. 42 Many small satellites have been launched by India for the experimental purposes. http://www. isro.gov.in/spacecraft/experimental-satellites.

4.1 Historical Background

93

space programmes but the manner in which they deliver services to society makes them distinct.43 Space Transportation Systems There has been a paradigm shift in India’s launch capacity. From the SLV-3 that has the capacity to deliver a payload up to 40 kg to the GSLV Mark III that has the capacity to deliver payload up to 4 tons, there has been a phenomenal achievement in India’s space transportation systems. The GSLV Mark III is expected to be the carrier launcher to perform Indian human space flight missions44 as and when undertaken in future.45 The Satish Dhawan Space Centre located on the Sriharikota46 Island (SDSCSHAR)—the spaceport of India—operates both the launch vehicles, the PSLV and the GSLV. The PSLV popularly known as the “workhorse of ISRO”47 has numerous remarkable successes to its credit including the record-breaking successful launch of “104 satellites” in their desired orbit in a single mission.48 To enable low-cost access to space, India is in the process of developing its reusable launch vehicle.49 These developments indicate that India is preparing towards the global market for commercial launch services at a relatively lower cost.50 43 S. K. Das, Introduction in Touching Lives - The Little Known Triumphs of the Indian Space Programme, 2007, Penguin Publishers, p. xii. 44 Till date India has only one manned mission in cooperation with the then Soviet Union in 1984. The same year a formal agreement was signed with USA to fly an Indian on board American Shuttle in September 1986. Two Indians were being trained at Huston but unfortunately the failure of American Shuttle Challenger on 24 January 1986 led to the cancellation of all civilian flights of non-US origin on the shuttle that brought an end to the manned mission programme. Idea to have self-sustainable manned mission gained momentum in 2003 and since then India is working towards realization of manned mission. It is expected by 2022 three Indian will be sent in space. Refer Chapter 6 – India Manned and Lunar Flight in Brain Harvey et al., Emerging Space Powers – The New Space Programs of Asia, the Middle East and South America, 2010 Springer Publications, Pp. 215 – 253. 45 S. Ramakrishnan, Next-Generation Launcher: GSLV Mark III in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, p. 569. 46 Sriharikota is a remote island in the State of Andhra Pradesh located on the east coast of India from where all multi stage launches and commercial launches takes place. SDSC set up in 1969 has two active launch ports. Refer K. Narayana, The Spaceport of ISRO in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, Pp. 967 – 1007. 47 N Narayanmoorthy, PSLV the workhorse of ISRO in P. V. Manoranjan Rao (Et al.) From Fishing Hamlet to Red Planet, 2015, Harper Collins Publishers India, Pp. 412-490. 48 On 15 February 2017, the PSLV in its thirty ninth flight (PSLV-C37) successful launched 104 satellites from the SDSC. Of the 104 satellites 101 satellites were of international customer satellites from USA (96), The Netherlands (1), Switzerland (1), Israel (1), Kazakhstan (1) and UAE (1). After reaching a height of about 505 km, the satellites separated from the launch vehicle at different times, angles and velocities to avoid collisions. 49 Reusable Launch Vehicle – Technology Demonstrator (RLV-TD) was successfully flight tested on May 23, 2016 from SDSC, Sriharikota. http://www.isro.gov.in/launcher/rlv-td. 50 On 30 June 2014 on the successful launch on PSLV C23, congratulating the space scientist of India, the Hon’ble Prime Minister of India said “India has a potential to become launch service

94

4 Legal Regime for Space Activities in India

To further boost the capacity and accelerate, the number of launches the Government of India is intending to privatize the PSLV.51 As communicated by the Press Information Bureau52 “in order to step up the launch capacity within the country, ISRO is in the process of exploring the possibility of involving the Indian industry in a greater role to meet the increased national requirements and possible commercial demand for launch services”. Privatization will aid in the expansion of launch capability of India but on the other hand the Government of India will incur unlimited liability as a “launching state”. It demands that space transportation services continue to be reliable without jeopardizing safety, security and international obligations of India.53

4.2 Space Governance in India Since the inception the Office of the Prime Minister of India has held the charge of the space programme, which ensured support from the highest level in the Government.54 The Space Commission that consisting of eminent scientists and top-level bureaucrats plays the dual role of both policy formulation and advising the Government in all matters relating to space. Implementation of space policies and programmes is done by the DOS mainly through ISRO. ISRO is a conglomeration of autonomous and attached bodies spread throughout the country with its headquarters at Bengaluru. It develops, operates and maintains satellites, launch vehicles, launch and track facilities, related research centres, educational institutions and other necessary infrastructure. The Antrix Corporation Limited (Antrix), incorporated on 28 September 1992 (under the Companies Act, 1956), is a wholly owned Government of India Company under the administrative control of the Department of Space (DOS) and is the commercial arm of ISRO. It promotes and commercially markets the products and services emanating from the Indian Space Programme. Prima facie India has a three-tier space governance structure—the Prime Minister’s office at the apex, the DOS and the Space Commission bridging the PMO and the DOS but in practice, at times, the same persons have been assigned different roles provider of the world. We must work towards this.” Reported in the Business Standard dated 30 June, 2014 available at http://www.business-standard.com/article/news-ani/india-potential-ofbecoming-world-launch-service-provider-pm-modi-114063000198_1.html. 51 Srinivias Laxman, Plan to Privatize PSLV Operation by 2020: ISRO Chief in Times of India, 15 February 2016 available at https://timesofindia.indiatimes.com/india/Plan-to-largely-privatizePSLV-operations-by-2020-Isro-chief/articleshow/50990145.cms. 52 Privatisation of PSLV, Press Information Bureau, Government of India, Department of Space dated 20 July 2016 available at http://pib.nic.in/newsite/PrintRelease.aspx?relid=147347. 53 Kumar Abhijeet, Privatisation of PSLV – What the Law of Outer Space Demands in 2016 Proceedings of the International Institute of Space Law, 2017, Eleven International Publishing, p.546. 54 U. R. Rao, India’s rise as space power, p. 195.

4.2 Space Governance in India

95

at various governance levels.55 As DOS also acts as the regulator for all industry, there exists a conflict of interest for it to promote the private space industry.56 It must be recalled here the Comptroller and Auditor General of India’s57 report—“Having the same person hold multiple posts, chairman Space Commission, Secretary Department of Space, chairman ISRO and chairman-cum-managing director, Antrix, clearly leads to a conflict of interest.”58 The report stressed that the government must ensure that the same person doesn’t hold all crucial posts. “Different functionaries are appointed to ensure checks and balances”. In the light of private sector participation and CAG’s recommendation, it is proposed that India must have a transparent space governance regime with clarity in the administrative set-up which must also ensure effective authorization and continuous supervision of space activities.59 It suggested that for proper checks and balances authorization and supervision of space activities must be done by two distinct independent bodies.

4.3 Space Law in India 4.3.1 The Constitution of India: Implementation of International Treaty Except for the Moon Agreement, India has ratified all the space treaties. The conduct of international relations and discharge of international obligations is guided by the Constitution of India. Article 51 of the Constitution of India directs the State to promote international peace and foster respect for international obligations.60 Obligations flowing from international treaties can be implemented either by way of legislative action or through executive action of the Union vested in the President of

55 Kumar Abhijeet, Development of National Space Law for India, Astropolitics – The International Journal of Space, Politics and Policy, 2016 Vol. 14 No. 2-3 p. 193. 56 Sanat Kaul, Need for space governance for India and global space governance, The Journal of Space Safety Engineering, 4 (2017), p. 55. 57 The Comptroller and Auditor General (CAG) of India is an authority, established under Article 148 of the Constitution of India that audits all receipts and expenditure of the Government of India and the state governments, including those of bodies and authorities substantially financed by the government. 58 Report (Report No. 4 of the year 2012-13) of the Comptroller and Auditor General of India on hybrid satellite digital multimedia broadcasting service agreement with Devas. 59 Also refer V. Balakista Reddy, Commercialisation of space activity: Need for a law in Deccan Herald, 15 April 2015 available at http://www.deccanherald.com/content/471680/commercialisationspace-activity-need-law.html. 60 Article 51 of the Constitution of India – “The State shall endeavor to - (a) promote international peace and security; (b) maintain just and honorable relations between nations; foster respect for international law and treaty obligations in the dealings of organized peoples with one another.”.

96

4 Legal Regime for Space Activities in India

India.61 The Parliament of India is competent to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.62 As of today, no specific legislation has been enacted by the Parliament to implement the obligations flowing from any space treaty. The mandate of Article 51 of the Constitution of India has been implemented through executive action,63 which extends to matters with respect to which Parliament has the power to make laws.64 At present, this is the basic mechanism through which obligations arising from space law treaties for India are being complied with.65

4.3.2 Allocation of Business Rules Conduct of the business of the Government of India is undertaken in the name of the President of India.66 For a more convenient transaction of the business of the Government of India, the President can make rules.67 Pursuant to the power conferred to the President of India, the Government of India (Allocation of Business) Rules, 1961 has been enacted. The first schedule Rule 2 (45) of the Allocation of Business Rules (AOB) accommodates Department of Space (DOS) and the second schedule allocates powers and function to the DOS concerning all matters relating to space science, space technology and space applications, including international relations, in matters connected with Space. The industry partnership with the Government has largely been through contractual relations with DOS procured through the Antrix Corporation.68

61 Article 53 of the Constitution of India - “The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution of India.”. 62 Article 253 of the Constitution of India. 63 Ranjana Kaul and Ram S. Jakhu, Regulation of Space Activities in India in Ram S. Jakhu (Ed.) National Regulation of Space Activities, 2010 Springer, p. 158. 64 Article 73 (1)(a). 65 Ranjana Kaul, National Space Legislation: A Blueprint for India, Proceedings of the ISRO-IISL Space Law Conference 2005, Bringing Space Benefits to the Asia Region 26-29 June 2005, Allied Publishers, Bangalore, pp. 2-14. 66 Article 77(1) of the Constitution of India. 67 Article77(3) of the Constitution of India. 68 Kumar Abhijeet, Development of National Space Law for India, Astropolitics – The International Journal of Space, Politics and Policy, 2016 Vol. 14 No. 2-3 p.195.

4.3 Space Law in India

97

4.3.3 The SatCom Policy India has yet not formulated an explicit space policy.69 The Citizen’s Charter of Department of Space gives the vision for an Indian Space Programme—“Harness space technology for national development, while pursuing space science research and planetary exploration”. The 2000 Satellite Communication (SatCom) Policy is the only document relevant with respect to commercial space activities addressing specifically the norms for authorization of establishment and operation of satellite systems by nongovernmental parties. With respect to the requirements of national space legislation, an analysis of the 2000 SatCom Policy is made below. Scope and Application In respect of the establishment and operations of the Indian Satellite Systems, the 2000 SatCom Policy documents provide exclusive norms, guidelines and procedure. “Indian Satellites” is defined as “the satellites, which are part of a satellite network or system which are informed, coordinated, registered and notified by the Indian Administration following the International Telecommunication Union (ITU) Radio Regulations (RR) and for the actions of which Government of India shall be internationally responsible. Indian Satellites are a subset of the broader concept of Indian Space Objects”.70 Operation of foreign satellites from Indian soil may be allowed in exceptional cases, notified by the Government of India, for example in the case of intergovernmental systems.71 The 2000 SatCom Policy also allows the authorized leasing of system capacity of the INSAT to non-government (Indian and foreign) parties on commercial terms. The Indian parties are allowed to provide services including TV uplinking through Indian Satellites. Implementation of the Authorization and Supervision Principle Authorization Subjects A party intending to operate an Indian Satellite System shall require an authorization. In case of satellite systems of Private Parties and Public Sector Units, only Indian registered Companies may be allowed to establish and operate an Indian Satellite System.72 69 G.

S. Sachdeva, Space policy and strategy of India in Eligar Sadeh (Eds.) Space Strategy in 21st Century – Theory and policy, 2013, Routledge Taylor and Francis Group, p.303; Ranjana Kaul and Ram S. Jakhu, Regulation of Space Activities in India in Ram S. Jakhu (Ed.) National Regulation of Space Activities, 2010 Springer, p.155. 70 A. 3.2 SatCom Policy 2000. 71 A. 4 SatCom Policy 2000. 72 A. 3.6 SatCom Policy 2000.

98

4 Legal Regime for Space Activities in India

Authorization Body The Department of Space is the Administrative Ministry in respect of satellite systems.73 For establishing an Indian Satellite System, three distinct authorizations/licences are required: (i)

Authorization from DOS to own and operate an Indian registered satellite system, including the spacecraft control centre.74 (ii) Authorization by the Wireless Planning and Coordination Wing (WPC) of the Ministry of Communications, being the Indian Administration, to operate a space station in accordance with the extant ITU Radio Regulations.75 (iii) Operating licences for the services to be provided by the system/network.76 For instance, for broadcasting the Broadcast Act will apply and for telecommunications, the Telegraph Act will apply. The Administrative Ministry for Telecommunications is the Department of Telecommunications, and for the broadcasting, it is the Ministry of Information and Broadcasting. Authorization Conditions The DOS ensures that the requirements of the OST and other treaties are complied with.77 It also takes into account any security-related concerns. The applicant must establish to the satisfaction of the Committee for Authorizing the Establishment and Operation of the Indian Satellite Systems (CAISS)78 that they have the required technical, financial and legal credentials to construct, launch and operate the proposed satellite system in conformity with the time-scales contained within its business plan.79 In the interest of facilitating investment by Indian companies, in the applicant company, the foreign direct investment (FDI) in the applicant company must not exceed 74%.80 However, the CAISS may licence an Indian registered companies with 100% foreign direct investment to establish Indian Satellite Systems with the condition that over a period of five years after the issue of the licence for the establishment of the satellite system, the foreign direct investment should be brought down to the extent of 74% or less.81 73 A.

3.3 SatCom Policy 2000. SatCom Policy 2000. 75 A.3.4.2 SatCom Policy 2000. 76 A.3.4.3 SatCom Policy 2000. 77 A.3.4.1 SatCom Policy 2000. 78 The CAISS consist of Secretaries to the Government of India in the Department of Space (as the chairman), Department of Telecommunications, Ministry of Information and Broadcasting, Ministry of Home Affairs, Secretary (R), Ministry of Defence and Ministry of Industry (Department of Industrial Policy and Promotion) with Wireless Advisor to the Government of India as a Permanent Invitee. After the CAISS approval the authorizations/licenses for the establishment and operation of the Satellite System shall be issued by Department of Space. 79 A. 3.6.2 SatCom Policy 2000. 80 A. 3.6.1 SatCom Policy 2000. 81 A. 3.6.1 SatCom Policy 2000. 74 A.3.4.1

4.3 Space Law in India

99

Authorization Procedure For the first two categories of authorization, the applicant must make an application to the CAISS in the prescribed format.82 After the CAISS processing and approval, an intersystem coordination in consultation with the DOS is carried out for the authorization of establishing and operating the satellite system. The final authorization is ultimately issued by the DOS. The issuance of the operating licence does not imply the granting of a service operating licence or frequency/siting clearances for ground stations.83 The applicant must obtain these separately from the appropriate authorities in India. Continuing Supervision The authorization is dependent upon the continued compliance with the procedures.84 The Satellite Control Centre/s (SCC), under the supervision of the CAISS, monitors correct functioning of the key technical parameters and controls the movements of the satellite with the ability to partially or completely close down the network.85 The applicant has to submit annually the physical and financial progress of the established system to the CAISS secretariat.86 In case the progress in establishing the system is not satisfactory, the DOS/administration has the power to cancel the licence/notification for the system.87 DOS also has the right to inspect the SCC facility and asks for modifications/augmentation.88 If necessity demands, DOS may modify or incorporate new authorization conditions. In case of emergency or war or low-intensity conflict or any other eventuality in public interest, as declared by the Government of India, the DOS has the right to take over the system, equipment and networks of the licencee in part or in whole.89

82 A.3.7.1. prescribes the information to be provided by the Apllicant. The Applicant must provide the following information (i) Technical description of the proposed system including information on: (ii) Intended service, service area; (iii) Network description and characteristics; (iv) Spacecraft description, including nature and capabilities of all payloads and systems; (v) Spacecraft Launch Vehicle; Project Plan with key milestones clearly identified; Management Information including (i) Methodology and source of selection of spacecraft and launch; (ii) Arrangements for third party liability insurance (iii) Management plan and control mechanisms; Licensing information including operating license obtained already or applied for; Orbit-spectrum requirements including alternate choices indicating priority. Evidence that the Applicant has current financial ability to meet the cost of construction and launch of the proposed satellite(s) and that it has the financial resources to operate the system. A broad business plan of the Applicant showing the intended sources of funding and estimated revenues. 83 A. 3.7.2.3 SatCom Policy 2000. 84 A. 3.7.3.5 SatCom Policy 2000. 85 A. 3.6.4 SatCom Policy 2000. 86 A. 3.7.4 SatCom Policy 2000. 87 A. 3.7.4 SatCom Policy 2000. 88 A. 3.7.4 SatCom Policy 2000. 89 A. 3.7.4.7 SatCom Policy 2000.

100

4 Legal Regime for Space Activities in India

Financial Responsibility The 2000 SatCom Policy does not talk about the liability for damage caused by space objects. It is silent on the part as to whether liability is shared by the Government or absolutely borne by the operator. But an applicant seeking authorization for operating satellite system must make arrangements for third-party liability insurance.90 Transfer of the Licence The DOS with the approval of the CAISS may, on the request of the applicant, allow the transfer of a filing or registration from one applicant/operator to another Indian Satellite System applicant/operator after satisfying itself that it does not adversely affect the public and national interest.91 However, it is silent with respect to any sale/transfer of on-orbit satellites. Implementation of the Registration Principle After the launch, the DOS has the obligation to notify the UN as per the Registration Convention.92 Protection of the Environment Nothing has been expressed in the 2000 SatCom Policy document with regard to the protection of the environment. Other Aspects For the use of foreign satellites for any kind of services, the Administrative Ministry/department must follow the special norms/procedures as prescribed under the policy.93 The SatCom Policy besides containing principles for decision-making also contains procedural norms for seeking a licence for operation of satellite systems. Since these norms have been levied through a policy document, it is not clear unlike the “rule of law” how far it can oblige or prohibit the conduct of both the Government authorities and prospective private enterprise. It simply informs the prospective applicants that the relevant government department issues satellite operation licences. In case of conflict, how shall the dispute be resolved? Can sanctions be levied for noncompliance with the authorization condition? It is also not clear whether the licensing requirements for commercial launches also include the aspects of authorization, continuous supervision mechanism, matters related to insurance, indemnification, environmental protection dispute resolution, sanctions for breach of licensing conditions, etc.94

90 A.

3.7.1.3 SatCom Policy 2000. 3.7.5 SatCom Policy 2000. 92 A. 3.7.4.5. SatCom Policy 2000. 93 A.4.4 SatCom Policy 2000. 94 Ranjana Kaul and Ram S. Jakhu, Regulation of Space Activities in India in Ram S. Jakhu (Ed.) National Regulation of Space Activities, 2010 Springer, p. 165. 91 A.

4.3 Space Law in India

101

4.3.4 Remote Sensing Data Policy The Remote Sensing Data Policy (RSDP) of 2011 contains modalities for managing and/or permitting the acquisition/dissemination of remote sensing data in support of developmental activities. For operating a remote sensing satellite from India, the acquisition and/or dissemination of remote sensing data within or outside India a licence and/or permission is required from the DOS, which is the nodal agency for all actions under this policy. The 2001 RSDP provides the basis imaging policy. All data of resolutions up to 1 m is distributed on a non-discriminatory basis and on “as requested basis”, whereas all data of better than 1 m resolution is screened and cleared by the appropriate agency prior to distribution. Screening of data above 1 m resolution is with a view to protecting national security interests.95 The National Remote Sensing Centre (NRSC) is vested with the authority to acquire and disseminate all satellite remote sensing data in India, both from Indian and foreign satellites, whereas the Antrix Corporation Limited is vested with the authority for receiving the applications for grant of licence for acquisition/distribution of IRS data outside of India and to consider and decide on the granting of licence within the policy considerations of the Government, as well as enter into licensing agreements with the prospective users on behalf of the Government.96

4.3.5 The Right to Information Act The Right to Information (RTI) Act, 2005 is an act of the Parliament of India that “provides for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority …”97 Under the provisions of the Act, any citizen of India may request information from a “public authority”98 who is statutorily required to reply expeditiously within thirty days.99 The RTI Act has been helpful in making government functionaries

95 A.4

RSDP 2011. 3(a) RSDP 2011. 97 Preamble to the Right to Information Act, 2005. 98 Within the meaning of the RTI Act “public authority means any authority or body or institution of self-government established or constituted — (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any — (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government”. 99 S.6 r/w S.7 of the RTI Act 2005. 96 A.

102

4 Legal Regime for Space Activities in India

answerable to the people of India and brings transparency in governance. The DOS has formulated guidelines for applicants seeking information under the RTI Act.100

4.4 Need for National Space Legislation It can be inferred that space law in India is largely confined to few informal rules, couple of policy documents and the constitutional provisions. In addition, the RTI Act, export control laws and other general laws of India are also applicable to all space activities.101 Necessity for national space legislation has been largely emanating from the international space treaties (discussed in Chap. 2); nonetheless in the light of ongoing space activities and future aspirations additionally, there are some more specific reasons for India. Generally, the treaty obligations of India can be discharged without legislation but there are four exceptions to this rule102 : (i) if treaty obligations provide for payment to a foreign entity, which must be withdrawn from the Consolidated Fund of India103,104 ; (ii) if treaty obligations affect the justiciable rights of citizens105 ; (iii) if treaty obligations require the taking of private property [Art. 31(1)], taking of life or liberty [Art. 21] which under the Constitution can be done only by legislation106 ; (iv) and if treaty obligations modify any law of India.107 Scholars have illustrated the following practical situations, which aptly fall under the above-mentioned exceptions that require Parliament to enact specific legislation to give effect to international treaty obligations.108

100 https://www.isro.gov.in/sites/default/files/articlefiles/node/8696/guidelines_for_submission_

of_application_under_rti_act_2005-120917.pdf. 101 V. S. Mani Space Policy and Law in India and its Relevance to the Pacific Rim, Journal of Space

Law, Vol.35, No.2, 2009, p. 628. Kaul and Ram S. Jakhu, Regulation of Space Activities in India in Ram S. Jakhu (Ed.) National Regulation of Space Activities, 2010 Springer, p. 158. 103 Article 266(3) Constitution of India – “No money out of the Consolidated fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purpose and in the manner provided in this Constitution.”. 104 Moti Lal v. U.P., 1951 All.257 F.B. 105 Maganbhai v. Union of India, AIR1969 SC 783; Berubari Union, in re AIR 1960 SC 845. 106 Ali Akabar v. U.A.R, AIR 19966, SC 230. 107 State of West Bengal v. Jugal, AIR 1969 SC 1171. 108 Ranjana Kaul and Ram S. Jakhu, Regulation of Space Activities in India in Ram S. Jakhu (Ed.) National Regulation of Space Activities, 2010 Springer, Pp. 153 – 198; Ranjana Kaul, National Space Legislation: A Blueprint for India, Proceedings of the ISRO-IISL Space Law Conference 2005, Bringing Space Benefits to the Asia Region 26-29 June 2005, Allied Publishers, Bangalore, pp. 2-14. 102 Ranjana

4.4 Need for National Space Legislation

103

4.4.1 Enable Discharge of Liability for Paying Compensation for Damage Caused by Space Objects India has been a major launching state and aspires to enhance its launch capacity and frequency of launches.109 As a launching state, India will always remain a state of liability for damage caused by any of its space objects irrespective of whether the launch was carried for India or for a foreign customer or whether the launch was undertaken by the government or by a non-governmental entity.110 In the past five decades of stupendous, self-reliant, fully government-funded space programmes, in void of a legislation, not a single occasion has yet arisen where the Liability Convention has ever been invoked against India; such a possibility cannot be precluded in future, particularly where India is progressively looking forward to privatize and commercialize space assets, expand and develop capability in space exploration and scientific discovery, commercialize its competence to build and operate satellites and launch services. Should a liability arise for the Government of India discharging that liability will require payment to be made from the Consolidated Fund of India, which may not be possible in absence of a law (Exception 1). “Presently, the Government of India does not have competence to discharge liability as a launching state”.111 This should not be misconstrued that the absence of a specific national law does not by itself absolve India from its liability to pay for damages. At this juncture, it is worthwhile to quote late Prof. V. S. Mani “the fact that there has so far been no situation requiring a special law to tackle it is no guarantee that such a position will continue ad infinitum. We have just been lucky not to face the problem of no-law yet. ‘Murphy’s Law’ that is, whatever can go wrong, will go wrong, cannot, however, be ignored”.112

109 ISRO

Chairman in an interview to Livemint dated 21August 2017. “ISRO chief Kiran Kumar says looking at consortium for PSLVs”, available at http://www.livemint.com/Science/ dbmNUpntRSjVxR64B7kVxK/ISRO-chief-Kiran-Kumar-says-looking-at-consortium-for-PSLVs. html. 110 Liability Convention imposes liability upon the launching state. 111 Ranjana Kaul, National Space Legislation: A Blueprint for India, Proceedings of the ISRO-IISL Space Law Conference 2005, Bringing Space Benefits to the Asia Region 26-29 June 2005, Allied Publishers, Bangalore. 112 V. S. Mani, Space Policy and Law in India and its Relevance to the Pacific Rim, Journal of Space Law, Vol.35, No.2, 2009, p.140, 141.

104

4 Legal Regime for Space Activities in India

4.4.2 Enable Rescue and Return of Astronauts and/or Space Objects Foreign diplomats in India enjoy immunity from prosecution by law.113 This immunity has not been extended to a foreign astronaut who makes an unintended landing in the territory of India, which means in the absence of a law, a foreign astronaut would be deemed to have entered the territory of India illegally and therefore be subject to penal laws and other laws of India.114 The Rescue Agreement imposes an obligation to protect the right of astronauts and to render prompt, safe return of astronauts and space objects in the event of accident, distress and unintended landing in the territory of contracting states or on the high seas.115 Return of astronauts and space objects has an important aspect that involves protection of the justiciable right of Indian citizens in the event of damage caused to their person and property by foreign astronauts or foreign space objects or parts thereof.116 Since the immunity laws towards foreigners in India have not been amended, the above-mentioned last three exceptions indicate that an obligation towards an astronaut as levied by the Rescue Agreement can only be accomplished through the enactment of a law or through an amendment to the existing Act.117 Such a law will also protect the justiciable rights of an Indian citizen by granting them the right to claim compensation in the event of loss, damage, injury or death sustained by unintended landing of an astronaut or space objects or parts thereof.118

4.4.3 Enable the Active Space Industry Involvement at Turnkey Level The space programme in India is majorly dependent on the governmental budget, which is relatively low when compared with other countries.119 Therefore at times, 113 Section 86 of the Civil Procedure Code, 1908 implement the rule of immunity from prosecution

to a foreign state or diplomat as prescribed under the 1961 Vienna Convention on Diplomatic relations and the 1967 Vienna Convention on Consular Relations. 114 Ranjana Kaul and Ram S. Jakhu, Regulation of Space Activities in India in Ram S. Jakhu (Ed.) National Regulation of Space Activities, 2010 Springer, p. 159. 115 Article 1 and II of the Rescue Agreement. 116 Supra n.111. 117 Supra n.102 at p. 160. 118 Ibid. 119 G. S. Sachdeva, Space Policy and Strategy of India in Eligar Sadeh (Ed.) Space Strategy in the 21st Century – Theory and Policy, 2013, Routledge Taylor & Francis Group, p. 305.; V. Balakista Reddy, Commercialization and Privatization of Space Industry in India: Legal Issues and Challenges in Proceedings of the Fiftieth Colloquium on the Law of Outer Space, 2008, AIAA, p.545; Stephan F. von Welck, India’s Space Policy, Space Policy, Vol. 3 No. 4, 1987, p. 332.

4.4 Need for National Space Legislation

105

the efforts in space have been rather slow causing delays and escalation of costs and temporary suspension of the programme.120 Steadily there has been a significant increase in the space budget121 but the pressure still remains on the exchequer. What is required is an active space industry involvement at the turnkey level with a balance chain of the “rule of law”.122 “The success of a privatized space industry will enhance capacities within the country and complement the government-driven programme, which has been historically proven in advanced spacefaring countries such as the USA”.123 Many times, the Government of India has also acknowledged the necessity for industry participation in space.124 If commercialization and privatization of space are a serious goal, then a corresponding law is a must for its growth and expansion, and it is no longer sufficient to have ad hoc guidelines and procedures, which do not have the force of law,125 because a prospective investor would like to know the rules of the game in black and white before making any investment. So, unless and until there is a black letter law, no investors will invest.126 Rightly stated by the former Chairman of ISRO in an interview to the Hindustan Times newspaper as to why India needs a robust space law, “A 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 … As we enable more and more industries in space activities, we also want clarity on what they can do and what the limitations are”.127 120 G.

S. Sachdeva, Space Policy and Strategy of India in Eligar Sadeh (Ed.) Space Strategy in the 21st Century – Theory and Policy, 2013, Routledge Taylor & Francis Group, p. 305. 121 The allocation for the year 2017-18 is INR 9,093.71. Refer Answer to the Starred Question No. 288 regarding “Private Sector Participation in Space Programmes” - Statement Laid on the Table of The Lok Sabha (Lower House of the Parliament of India), March 22, 2017. 122 K. R. Sridhara Murthi, Potentials of Private Participation in the Indian Space Sector: Policy and Legal Needs in R. Venkara Rao & Kumar Abhijeet (Eds.) Commercialisation and Privatisation of Space, 2016 KW Publishers, Pp. 3-12; K. Kasturirangan & K. R. Sridhara Murthi, India’s Governance in Outer Space – Past, Present and Future in The Journal of Governance, 2015. 123 Sanat Kaul, Need for space governance for India and global space governance, The Journal of Space Safety Engineering, 4 (2017), p. 55. 124 Answer to the Starred Question No. 288 regarding “Private Sector Participation in Space Programmes” - Statement Laid on the Table of The Lok Sabha (Lower House of the Parliament of India), March 22, 2017. 125 Ranjana Kaul, National Space Legislation: A Blueprint for India, Proceedings of the ISRO-IISL Space Law Conference 2005, Bringing Space Benefits to the Asia Region 26-29 June 2005, Allied Publishers, Bangalore. 126 V. Balakista, in an interview to The Economic Times news paper dated 16 December 2014 Refer, Malavika Murali, Startups in Indian space sector need a legal and regulatory framework, available at https://economictimes.indiatimes.com/news/science/startups-in-indian-space-sector-needa-legal-and-regulatory-framework/articleshow/45530010.cms. also refer Frans G. von der Dunk, The International Law of Outer Space and Consequences at the National Level for India: Towards an Indian National Space Law? in Deepaloke Chatterjee Indian Yearbook of International Law and Policy (2009) Satyam Law International Pp. 135-163. 127 A. S. Kiran Kumar quoted in Prakash Chnadra, Why India Needs a Robust Space Law, Hindustan Times, 17 April 2016 available at http://www.hindustantimes.com/analysis/why-india-needs-arobust-space-law/story-156P0TyUvT4kkGipYI15yI.html.

106

4 Legal Regime for Space Activities in India

More so, legislation should serve as an enabling factor and not as an impediment for the growth of private enterprises.128 “Restrictions and obligations imposed on the private sector should be limited to the appropriate and necessary extent”.129 The experience of spacefaring nations suggests that if a viable space industry is to emerge in India, significant governmental support will be needed not only during the initial phase, but also in latter phases, as long as they undertake space activities.130

4.4.4 The Draft Space Activities Bill 2017 In the wake of an increasing private sector interest in space, a felt need was experienced for a national law. Accordingly in 2015, the Government of India started the drafting exercise131 ; while writing this dissertation on 21 November 2017, the “Draft Space Activities Bill” (henceforth, the Draft Bill) has been placed in the public domain for comments.132 The Draft Bill is spread in six chapters comprising thirty-three sections addressing fundamental issues to commercial space activity— licensing and monitoring mechanism, powers of the Central Government, registration of space objects, liability for damage, intellectual property rights protection in space; sanctions and dispute resolution. As stated in the explanatory note to the Bill, while drafting the Bill, significant help was taken from the ILA Model Law and UNGAR on national space legislation but it has been customized according to Indian needs. Scope and application The Act extends to the whole of India including the offshore platforms, ships and vessels under the Indian flag in the high seas, aircraft and other airborne vehicles registered in India and the space objects registered in the national registry of India.133 It applies to both natural and juridical citizens of India including government and

128 Kumar

Abhijeet, Privatisation of Space in India and the Need for A Law in Rajeswari Pillai Rajagopalan et al. (eds.), Space India 2.0: Commerce, Policy, Security and Governance Perspectives, 2017 Observer Research Foundation, p. 113. 129 Elmar Wins and Kay-Uwe Hörl, The Industry’s Views Regarding National Space Legislation in in Karl-Heinz Böckstiegel (Ed.) Project 2001 –Legal Framework for the Commercial Use of Outer Space, Carl Heymann Verlag, p. 604. 130 Steven Freeland, When Laws are Not Enough – The Stalled Development of An Australian Space Launch Industry in 2004 University of Western Sydney Law Review 8 (1); G. S. Sachdeva, State Responsibility for the Space Activities of Private Actors in Kumar Abhijeet and R. Venkata Rao (Eds.) Commercialisation and Privatisation of Outer Space – Issues for National Space Legislation, KW Publishers, p. 28. 131 A two-day workshop on National Space Act was organized by the Department of Space at the ISRO HQ dated Jan 16-17, 2015. Experts across the country have the opportunity to deliberate on the topic. The researcher was also invited in this workshop. 132 No. E 11020/2/2015-Sec-VI, Government of India, Department of Space. 133 S.1(2) Draft Space Activities Bill 2017.

4.4 Need for National Space Legislation

107

body corporate registered or incorporated in India undertaking space activities either in India or outside India.134 Implementation of the Authorization and Supervision Principle Authorizing Subjects Generally, every person whether natural or juridical to whom the Draft Bill applies will require a licence to carry on any “commercial space activity”.135 It is understood generally the Governmental entities will also require authorization if they undertake any commercial space activity, the exception being where the Central Government is satisfied that it is not necessary to secure compliance with any international obligation of India, the requirement of authorization may be dispensed with. The process for such exception is so cumbersome that it is doubtful it will ever be granted because permission is required from both the Houses of Parliament while in session.136 The Draft Bill is silent with regard to authorization of a non-commercial activity undertaken by a non-governmental entity. Generally, governmental activities are noncommercial and authorization may not be required because Government still bears the international responsibility and liability. But if it is a non-governmental noncommercial activity, say, a university launching of a satellite, Government will be susceptible to risk without an express authorization.137 The requirement of Article VI of the OST to authorize and continuously supervise is with all kinds of space activities, including non-commercial. Authorizing Body The Central Government may grant a licence for a commercial space activity. Authorizing Conditions A licence for commercial space activities may be granted depending upon the purpose of the activity for which an authorization has been sought.138 An activity for which a licence has been sought must not jeopardize public health or safety of individuals or property; should be consistent with the international obligations of India; and should not compromise the sovereignty and integrity of India, security of State, defence of India, international relations of India, public order, decency or morality.139

134 S.1(3)

Draft Space Activities Bill 2017. space activity means a space activity which generates or capable of generating a revenue or profit” - S.2(a) Draft Space Activities Bill 2017. 136 S. 6(3) Draft Space Activities Bill, 2017. 137 Kumar Abhijeet, Gateway Under Construction, The Statesman, 30 November 2015, p.14. 138 S.7(1) Draft Space Activities Bill, 2017. 139 S.7(2) Draft Space Activities Bill, 2017. 135 “Commercial

108

4 Legal Regime for Space Activities in India

Authorizing Procedure An authorization for commercial activities is granted by way of a licence. The licensing mechanism and procedures are yet to be formulated. The Central Government undertakes the responsibility to formulate and notify the procedure including eligibility criteria and fees for licensing.140 This would grant flexibility to the Government. Supervision In order to achieve “continuing supervision”, the Central Government has the power to inspect, test, examine the facility and equipment in the licencee’s premises.141 The Central Government may inspect and take documents in connection with any information relating to space activity.142 Any deviation from the orbital parameters requires immediate communication to the Central Government.143 For violation of a condition of licence, the Central Government may suspend, revoke or vary a licence.144 A very strict penalty has been prescribed for the violation of the conditions of the licence or the Act.145 Financial Responsibility The Central Government has reserved the right to seek indemnification against any claim for damage or loss arising out of a commercial space activity or a space object.146 Whether the commercial enterprise bears unlimited or limited, liability is left to be determined later.147 State practice suggests that a shared liability is desirable.148 As a licensing condition, a licencee is required to take third-party liability insurance.149 The Draft Bill does not mention the quantum of insurance. The Government may prescribe the quantum of insurance on a case-to-case basis, or the implementing decree may clarify further. Transfer of the Licence Licences granted are not transferable except with the prior approval of the Central Government on such conditions as may be considered appropriate by the Central Government for such transfer.150 It is presumed that all transfer of the licences will address liability conditions as an integral part of the transfer. 140 S.5(1)

Draft Space Activities Bill, 2017. Draft Space Activities Bill, 2017. 142 S.8(2) Draft Space Activities Bill, 2017. 143 S. 8(2)(f) Draft Space Activities Bill, 2017. 144 S.10 Draft Bill, 2017. 145 S.13- S.24 Draft Space Activities Bill, 2017. 146 S. 12(1) Draft Space Activities Bill, 2017. 147 S. 12(2) Draft Space Activities Bill, 2017. 148 UK, USA, Australia, South Korea, Japan, France, Denmark, The Netherlands and many others prescribe for a shared liability. 149 S. 8(2)(h) Draft Space Activities Bill, 2017. 150 S.9 Draft Space Activities Bill, 2017. 141 S.8(2)

4.4 Need for National Space Legislation

109

Implementation of the Registration Principle The Draft Bill obliges the Central Government to maintain a register of space objects in accordance with the Registration Convention.151 Within fifteen days of the grant of the licence, the licencee must provide the Central Government the information relating to (i) date and territory or location of launch; (ii) the basic orbital parameters, including nodal period, inclination, apogee and perigee and such other information as the Central Government may think necessary.152 Protection of the Environment The Draft Bill requires the licencee to conduct his operations in such a way as to prevent the contamination of outer space or adverse damage or pollution to the environment of the earth and to avoid interference with the activities of others in the peaceful exploration and use of the earth.153 The phrases used for the protection of the environment are quite broad which will require further elaboration. Maybe the implementing decrees/rules might address them, but the Draft Bill should have addressed the specific environmental protection measures like EIA, debris mitigation steps. Nonetheless, it has levied stringent punishment for causing damage or pollution to the environment that will serve as sufficient deterrent factor. “Any person who causes damage or pollution to the environment of the earth, airspace or outer space including celestial bodies by any space activity shall be punished with imprisonment for a term which shall not be less than one crore rupees154 or with both and in case of continuing offence, with an additional fine which may extend to fifty lakh rupees155 for every day during which the offence continues”.156 Other Aspects The Draft Bill makes the laws related to intellectual property rights in India applicable to inventions or other forms of protectable intellectual property rights.157 In case of emergency arising out of war, external aggression, natural calamity, or such other eventuality, the Central Government may take over the management of space objects.158 The Central Government may even ask for the disposal of the payload in outer space on termination of the operation.159

151 S.11

Draft Space Activities Bill, 2017. Draft Space Activities Bill, 2017. 153 S. 8(2)(g) Draft Space Activities Bill, 2017. 154 Equivalent to 1,57,940 USD. 155 Equivalent to 78, 970 USD. 156 S.16 Draft Space Activities Bill, 2017. 157 S.25 Draft Space Activities Bill, 2017. 158 S.30 Draft Space Activities Bill, 2017. 159 S.8(2)(i) Draft Space Activities Bill, 2017. 152 S.8(2)(d)

110

4 Legal Regime for Space Activities in India

4.4.5 Suggestions It is a well-settled principle of law that essential legislative functions cannot be delegated. The delegate must be furnished with adequate guidelines so that arbitrariness is eschewed. The Draft Bill is intended to give the basic legal framework for space activities largely in response to the international treaty obligations of India. Details of various provisions of the Draft Bill are to be prescribed under the rules to be formulated later. Rules give flexibility to add further requirements as per the need, but avoiding the basic essentials leads to uncertainty and addressing them within the Draft Bill will better institutionalize the things.160 “Law has to provide a basic level of ‘legal security’ by assuring that law is knowable, dependable and shielded from excessive manipulation”.161 The Government of India might have thought of a mechanism to provide incentives to private enterprises to take up space activities but if such a mechanism is statutorily prescribed, it emboldens confidence of private enterprise.162 It is suggested that a limited liability, conditions of indemnification, quantum of insurance and the like be accommodated in the Draft Bill. As the Draft Bill intends to regulate only commercial space activities, it is suggested that non-commercial space activities be also brought within the scope of legislation. It is very much appreciated and desirable that the Government takes up the responsibility to authorize and supervise space activities, but which body/office will be in charge of authorization and supervision is not mentioned. Maybe the implementing decrees/rule will further elaborate on this aspect. The explanatory note to the Draft Bill reveals that the DOS is the nodal agency for all space activities in India. “Implicitly the DOS shall have an indispensable integral role in authorization and supervision of space activities that demand the highest level of precision and this mammoth responsibility must not be bestowed through conventional practice and rules but rather in express wordings, to be included in the Draft Bill”.163 As explained earlier, it is recommended that two distinct bodies do authorization and supervision of space activities. The honourable Supreme Court of India in the case of Global Energy Ltd. And Ors. V. Central Electricity Regulatory Commission held that “If a statute provides for point-less discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is not under an obligation from an objective norm, which can enforce accountability in the decisionmaking process. All lawmaking, be it in the context of delegated legislation or primary legislation, have to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from ‘Due Process’ requirement under Article 21, ‘The Equal Protection’ clause embodied in Article 14 and ‘The Fundamental Freedoms’ clause ingrained under 19 of the Constitution of India”. 160 Kumar

Abhijeet, Gateway Under Construction, The Statesman, 30 November 2015, p.14.

161 Global Energy Ltd. And Ors. V. Central Electricity Regulatory Commission, AIR 2009 SC 3194. 162 Supra 163 Ibid.

n.160.

4.4 Need for National Space Legislation

111

Space activities being inherently dangerous, it is likely it may cause damage to life and property of the citizens of India. Even in a situation of rescue and return of space objects, a citizen of India may suffer damage. If such a situation arises, the Bill does provide a remedy to the citizen of India to bring a claim for compensation. It is emphatically suggested that a justiciable right in favour of the citizen of India for claim of compensation for damage caused by space activities is included in the Draft Bill.164 As explained in this chapter, India needs space legislation not only for its international treaty obligations but also as a constitutional necessity. The Draft Bill must accommodate the constitutionally prescribed mechanism for withdrawal of money for future needs from the Consolidated Fund of India.165 The delimitation issue has not been settled at any of the international bodies. With emerging new forms of space transport, delimitation of outer space will be necessary for the finality of liability concerns. Furthermore, addressing the boundary problem will bring much more clarity to the terms—space object and space activity. There is an opportunity for India to contribute towards the development of international customary law on the delimitation issue and India must grab this opportunity.166 Article 19(1)(g) of the Constitution of India confers the fundamental right on every citizen to carry out business, trade, profession or occupation. Clause (6) of Article 19, however, provides for the imposition of reasonable restrictions by a statute. As the purpose of national space legislation is to promote the participation of the private sector, therefore the legislation must also ensure right of private enterprise to seek licence for space activities is neither arbitrarily denied nor any unreasonable restrictions are imposed upon. If a licence is denied arbitrarily, the aggrieved part must have a statutory right to seek redressal, which is completely missing in the Draft Bill. Nonetheless, the aggrieved party can always invoke the writ jurisdiction of the High Court under Article 226 of the Constitution of India or the Supreme Court of India under Article 32 of the Constitution of India for violation of his/her fundamental rights. To avoid unnecessary burdening of the Courts, it is suggested that a dispute settlement body be created. There is ample scope for improvement in the Bill, but nonetheless it can be said it is a positive step towards commercialization and privatization of space.

4.5 Conclusion The Indian space programme has significant achievements to its credit. From fishing hamlet Thumba, five decades down the birth of its space programme India has reached

164 Ibid. 165 Ibid. 166 Ibid.

112

4 Legal Regime for Space Activities in India

the red planet—Mars, with all its indigenous technology.167 Prior to this India had entered into the Moon orbit, and now, it is in preparation to land a rover on the surface of the Moon. Amongst its future plans, manned missions, reusable launch vehicles, interplanetary probes are in process. Undoubtedly, the Indian space programme has had a robust history and a promising future. Compared to such a dynamic space programme, space law in India seems to be at its infancy confined to few constitutional provisions supplemented by some rules and policy. The need of the hour is that India must have a comprehensive space law which will not only give an institutional structure to discharge liability for paying compensation to a foreign state or third parties, but such a law will also establish actionable legal rights in favour of Indian entities participating in space and Indian citizens to claim compensation for damage sustained. A legislation is also required from the perspective of legal issues related to space transportation systems168 ; satellite communications169 ; remote sensing including data processing and distribution170 ; satellite navigational systems,171 human space flights and spin-offs issues to space commercialization and privatization like IPR172 and technology transfers.173 A Draft Bill to regulate space activities has already been released in this regard. The suggestions put forth will enable to improve the Draft Bill considerably.

167 For

a comprehensive timeline of Indian space programme visit http://www.DOS.gov.in/aboutisro/isros-timeline-1960s-to-today. 168 Refer Michael Gerhard and Isabelle Reutzel, Law Related to Space Transportation and Spaceports in Ram S. Jakhu and Paul Stephen Dempsey (Eds.) Routledge Handbook of Space Law, 2017, Routledge Taylor and Francis Group, Pp. 268-288. 169 Philippe Achilleas and Romain Loubeyre, Regulatory Framework for Authorizing Satellite Applications, The Case of Telecommunication in Lesley Jane Smith and Ingo Baumann (Eds.) Contracting for Space, 2011 Ashgate Publishers, Pp. 99-111. 170 Refer Lesley Jane Smith and Catherine Doldrina, Law Relating to remote Sensing in Ram S. Jakhu and Paul Stephen Dempsey (Eds.) Routledge Handbook of Space Law, 2017, Routledge Taylor and Francis Group, Pp. 241-267. 171 Refer Ranjana Kaul, Regulation of Navigational Satellites in India in Ram S. Jakhu and Paul Stephen Dempsey (Eds.) Routledge Handbook of Space Law, 2017, Routledge Taylor and Francis Group, Pp. 313-318. 172 Refer Yun Zhao, Law Related to Intellectual Property and Transfer of Technology in Ram S. Jakhu and Paul Stephen Dempsey (Eds.) Routledge Handbook of Space Law, 2017, Routledge Taylor and Francis Group, Pp. 321-332. 173 Ibid.

Chapter 5

Final Conclusion and Proposal

Outer space is no more an exclusive domain of government. Globally, private players have exhibited a keen interest in outer space and have increasingly gained access to. Many states have successfully allowed them to take up independent activities in this niche sector, which has yielded positive results. In India, there is a surge in demand of satellites and often the governmental agency is not able to maintain the supply demand chain. In the last decade, an increasing number of foreign satellites have also been launched from the territory and facility of India, which is viewed, as the future preferred “the launch site” of the world. To cater the rapidly increasing demand, teaming with private sectors is a popular choice. Collaboration with private players is vital not only for capacity building but also for cost reduction. An active involvement of private enterprise means that government can focus more on core research and development work. So long as space activities were exclusively in the governmental domain there was no felt necessity. With the participation of private enterprises, things no more remain indifferent because as a launching state India bears enormous liability for all its space activities whether governmental or non1 governmental, which creates the need for regulation of space activities. It must not be misconstrued that there is any kind of legal requirement to enact national space legislation in response to any of the international obligations but if a state enacts national space legislation, it can better fulfil its international obligations and can repose greater confidence amongst the private entrepreneurs willing to invest in the risky space business. As discussed in the introductory chapter, this study was undertaken in three-steps with the objective to propose a draft framework space legislation for India. In the first step, the international space treaties were studied to find out if there is any necessity 1 Refer Kumar Abhijeet, India and the Outer Space Treaty in Ajey Lele (Eds.) Fifty Years of the Outer Space Treaty - Tracing the Journey, 2017 IDSA, pp. 120–129.

The original version of this chapter was revised: Section 5.2 has been changed from “Draft National Space Legislation 201_” to “Draft National Space Legislation 202_”. The correction to this chapter is available at https://doi.org/10.1007/978-981-15-2675-6_6 © Springer Nature Singapore Pte Ltd. 2020, corrected publication 2020 K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6_5

113

114

5 Final Conclusion and Proposal

for states to enact national space legislation, the hypothesis being that with increasing private sector participation, the obligations arising from various international treaties can better be implemented through law. In the second step, a comparative study of space legislations of selected spacefaring countries was done. The underlying hypothesis was that since states have enacted national space legislation largely in response to their international obligations flowing from the various space treaties there exists a certain common denominator that any space legislation must address. The study of national space legislation was an empirical test of this hypothesis. In the third step, a case study from India was made to know the technological developments and current legal regime for space activities in India. The hypothesis was in absence of a specific law in India there might be situations where the Government may be incapacitated to discharge its international obligation/s. The Government may incur unlimited liability for damages for an activity undertaken by a private enterprise and such liabilities can be shielded through law. Against these hypotheses, the following conclusions have been discussed below. The necessity of national space legislation is largely in response to the international obligations in light of the private sector engagements. Nonetheless, few states also enacted national space legislation for ensuring good governance despite the only player in space being the government itself. Article VI of the OST imposes obligations upon the states that the activities of non-governmental activities in outer space shall require authorization and continuing supervision. “Authorization and continuing supervision” is a procedural aspect, which the states themselves have to devise. Neither Article VI of the OST nor any other international treaty prescribe how should a state fulfil this obligation. One possible way could be through contractual agreement, which is the current practice in India in absence of specific space legislation. A possible alternative to contractual agreement is laying authorization norms through an administrative action as Brazil has done. Authorization and supervision through administrative regulation or through a contractual agreement are much easier and quicker but the guarantee which legislation will give, in no way can be achieved through administrative regulations. The international obligations flowing from the space treaties are so complicated that legislation will always be more advantageous than any other process. National space legislation will enable a state to protect its financial interests. Whether it is a governmental space activity or a non-governmental one, it is the state or in particular the “launching state” that bears international responsibility and liability for damages if any. Private enterprise does not bear any kind of liability for damages caused by its space objects. This is unique compared to other branches of international law where state responsibility is limited only to state actors. In international space law, states also bear responsibility and liability for its non-governmental activities. This is a major reason for the states to regulate its private space activities. It must not be misconstrued that by enacting national space legislation states may get rid of their international liability. There is no way in international law by which a state can free itself from the liabilities of private space activities. Once a state qualifies as a launching state either by launch of a space object or by procuring a launch of a space object or by making use of its territory or facility for launch of a space

5 Final Conclusion and Proposal

115

object, it becomes a state of liability forever. National space legislation can only help states to seek recourse against the private enterprise. If damage occurs due to a space object whether in outer space or on Earth prima facie the launching state(s) will be held internationally liable to compensate for damages. Nonetheless, state can seek indemnification from the operator for the compensation paid. Whether a state seeks absolute indemnification or partial indemnification it will be a policy matter of the state. Based on state practices, it is highly recommended that states must adopt a shared liability policy. An unlimited liability may either perish the private enterprise or demotivate them to participate. A shared liability will repose confidence in them that their government stands as a surety. To avail benefit of this governmental surety, they must exercise the highest level of due diligence which may include strict compliance with the authorization conditions. Damages are future oriented, unlimited in quantum, time and location. It is quite possible when damages take place the respective private enterprise whose space object caused damage either does not have the capacity to repay or does not exist. In such circumstances, an indemnification clause may not be of any help to the state. To safeguard governmental financial interests, national space legislation must mandatorily prescribe for third-party insurance coverage. The quantum of insurance coverage may depend upon the risk involved. State practice suggests that the standard insurance requirement is of sixty million Euros. Even if states have levied for mandatory insurance and claims are frequent, then no insurance company would like to invest in this risky space business, which may lead to failure of the private space market. To avoid such situation continuous supervision of all the authorized space activities are a must both in national interests and in compliance with international obligation. State practice suggests continuous supervision has been achieved by demanding the operators to furnish periodic information pertaining to all authorized space activities. States have reserved the right to inspect and search the premises of the operator; they may seize or suspend an activity either temporarily or permanently; they may issue instructions or may even impose sanctions for violation of authorization conditions. It is foreseeable that sale–purchase of satellites may take place on orbit. When such transaction occurs in cross-jurisdiction, it is essential national space legislation levy for intergovernmental agreement apportioning future liability of such space objects because the launching state will still be de jure internationally liable even though the de facto control of such satellite may vest with some other state. Maintaining a national registry of space objects and communicating the information about the space objects in the required manner is yet another international obligation upon the states. National space legislation can mandate the operator to furnish necessary periodic information to enable the state to discharge the requirements of registration of space objects. It is not unknown that the environment of outer space is very fragile. Space debris further increases the vulnerability of outer space. Activities of private enterprises must not cause harmful contamination of outer space by way generation of debris or by release of harmful radiation and emission of gases. States must prescribe specific environmental safeguard measures like an environmental impact assessment, a debris

116

5 Final Conclusion and Proposal

mitigation plan and others. It can be summarized that based on the international space law, requirements, contents of any national space legislation should include authorization, supervision, indemnification, insurance, transfer of the space object, registration of the space objects and environmental safeguard measure. State practices suggest that any national space legislation has two parts. The first is the scope of the legislation and the second explains how the scope of the legislation has been covered. One cannot fight a watertight distinction between the two parts but nonetheless the distinction can be easily figured out. The scope of legislation usually covers the object of legislation which is usually a space activity falling under the jurisdiction of the state. States have exercised their jurisdiction either if an activity takes place within their territory or if their nationals (both natural and juridical persons) undertake an activity. There is no precise definition of a space activity but any activity for which a state bears international responsibility is covered within the scope of national space legislation. The second part of the legislation is the operative part that actually gives effect to the scope of legislation. State practices suggest that authorization of space activities is usually achieved through some form of licensing. National security and safety, compliance with international obligations are primary authorization conditions. In addition, states have a residuary power to impose any other condition that they deem necessary. Legislations, which came post 2012, are largely in tune with the ILA model legislation, which is quite a comprehensive in nature while quite a few have transgressed significantly. The ILA model can be a good reference guidance of practical relevance as to who can a state address the requirements of national space legislation. It is flexible enough that a state can customize as per its specific requirement without compromising with the basic tenets of national space legislation. The proposed legislation has significantly taken help from it but in every aspect it is a unique in outcome. Generally, the Constitution of India enables the Government to discharge India’s international obligations even without legislation but where an international obligation demands a payment to be made from the Consolidated Fund of India or affect the justiciable rights of citizen or take private property or life or modifies any law of India, legislation is a must. Existing space law in India is very informal in nature, confined to few constitutional provisions, policy and rules. Should there be a need to compensate for damage caused by a space object, which demands payment from the Consolidated Fund of India or there is a situation for the return of astronauts and space objects that affect justiciable rights of citizen of India, the Government might face a constitutional crisis. Implicitly, in addition to the fulfilment of requirements of international space law, there is a constitutional necessity for national space legislation. Furthermore, for an active industry participation, stability and predictability of the rules of the game are must which can be ensured through a black letter law and not through some ad hoc policies and rules, which do not have the force of law. A prospective entrepreneur expects certainty and predictability, which can be comparatively better achieved through legislation and not through policy or administrative actions, which may be open to ambiguous interpretations.

5 Final Conclusion and Proposal

117

Realizing these limitations, India came up with the draft (2017) of its national space legislation inviting suggestions from the stakeholders for improvements. With release of the draft “Space Activities Bill” the Government of India has taken the first step towards building a commercial space industry in India. It was expected that the Bill could possibly be introduced during the Budget session of the Parliament in January/February 2019.2 Knowing there is ample scope for improvement in the Draft Bill, it could not be introduced in the Budget session. This makes the present research work much more significant as it can serve as a ready reckoner for improvising. For example, the current Draft Bill does not address the issue of delimitation, constitutional requirements of withdrawal of money from the Consolidated Fund of India, does not talk about justiciable rights in favour of the citizen of India to claim for damages. The Draft Bill is to regulate commercial space activities but there is no clarity as to whether non-commercial activities, for example; whether a university launching a satellite requires authorization? The details of important aspects related to authorization and supervision, the quantum of liability and indemnification, insurance factors, environmental safeguard measures, etc., have been left to be prescribed under the rules, which are yet to be drafted. It is concluded that national space legislation is largely needed for three reasons— first to fulfil international obligations, second to address the specific requirements of India and finally to enable the participation of non-governmental entities.3 As space activities in India are diverse, the scope for legislation is very wide, ranging from, general authorization and supervision of all its space activities to a dedicated legislation for specific space activity like space transportation, satellite communication, remote sensing, satellite navigation, human space flight and many others including effective space administration. “If we are to play a meaningful role nationally, and in the community of nations, we must be second to none …” not only “… in the application of advanced technologies to the real problems of man and society” but also in the establishment of “rule of law” to the application of these advanced technologies. Technology has leapt ahead and its high time that space law in India must pick up the pace.

5.1 Proposal The novelty of this research work is that, in light of the arguments presented, requirements of international space law, specific needs of India, state practices towards national space legislation, the ILA Model Law, recommendations of the UNGAR on national space legislation and that of the Bangalore Declaration 2015, a draft framework legislation has been proposed that provides general regulatory mechanism for all space activities in India without prescribing in detail every single aspect of it. Legislations in India that prescribe supervision of any kind of activity in India were also referred to. 2 December 12, 2018 (Department of Space) answer to the question No. 281 raised in the Parliament. 3 Kumar Abhijeet, Privatisation of Space in India and Need for A Law in Rajeswari Pillai Rajagopalan

et al. Space India 2.0, 2017, p. 103.

118

5 Final Conclusion and Proposal

5.2 Draft National Space Legislation 202_ An Act to provide for authorization and for continued supervision of the activities in outer space in the interest of all nations and for matters connected therewith and for protection of the environment of outer space. Recognizing that outer space has to be explored in a peaceful manner without jeopardizing the interest of other nations, Realizing the international responsibility for national activities in outer space, Knowing the liabilities of a launching state and thereby the necessity for insurance and indemnification, Desiring to authorize space activities to facilitate non-governmental participation and commercial exploration of outer space, Considering the need for continuous supervision of space activities to ensure greater safety and security, minimize the risk of damage occurring and liabilities any arising thereto, Believing that a legal regime will ensure protection of the environment, both terrestrial and outer space, in the interests of posterity. The national space legislation seeks to achieve the above-mentioned objectives. Be it enacted by the Parliament in the … Year of the Republic of India as follows:Chapter 1 Preliminary 1. Short Title, Scope and Commencement (1) This Act may be called the National Space Legislation, 202_ (2) It applies to space activities carried out by any person in India or juristic persons incorporated in India who intend to carry out the space activities in India or elsewhere including on ships or aircraft registered in India. (3) It applies to foreign nationals or juridical persons who intend to carry out the space activities under a specific agreement with the Government of India. (4) Space activities include: (a) Launching or procuring a launch of a space object; (b) Operating a space object; (c) Return of space object to Earth from outer space; (d) Any other activity in and from outer space. (5) For the purpose of this Act, an activity shall be presumed to be in outer space if such an activity is carried out or intended to be carried out at an altitude of 100 km or more above mean sea level. Explanation: Any activity carried or intended to be carried out in or from i. The orbit of the Earth; ii. Orbit or surface of the Moon; iii. Orbit or surface of any other celestial bodies shall be presumed to be in outer space.

5.2 Draft National Space Legislation 202_

119

(6) The Act shall come into force on such date as the Central Government may announce, by notification in the Official Gazette. 2. Definitions i. ii.

iii.

iv. v. vi.

vii. viii. ix. x. xi. xii. xiii. xiv. xv. xvi.

xvii.

Authorization includes authorization, approval, permit, certification or any other form of written permission granted by the appropriate authorities. Applicant means the person who intends to undertake space activity and in whose name the authorization to undertake space activity is to be issued by the Secretary. Commercial Space Activity means a space activity for the purpose of generating revenue or profit whether conducted by a governmental or by a non-governmental entity. Consolidated Fund of India means as defined in Article 266 of the Constitution of India. Damage includes loss of life, personal injury or impairment of health; or loss of damage to property or environment. Department of Space includes such Governmental and Non-Governmental academic, research, commercial or any other institution notified by the Central Government to be part of Department of Space. Holder of Authorization is the person in whose name the authorities issues authorization(s) to undertake space activity. Joint Launch refers to a launch where a state other than India participates in launching of space object. Launching includes attempted/failed launch. National Space Activity means space activity undertaken by governmental as well as non-governmental entity. Non-governmental participant includes private persons, university, organization, etc. Operator means natural or legal persons carrying out space activities. Person refers to both natural and juridical person. Procuring a launch refers to possibility to have some control over the launch. Secretary means Secretary, Department of Space. Space object refers to any object launched or intended to be launched into outer space including its component parts as well as its launch vehicle and parts thereof. Supervision includes continuous monitoring and tracking of a space activity.

120

5 Final Conclusion and Proposal

Chapter 2 General Powers and Functions of Central Government 3. Space Administration (1) All space activities shall be carried out by the Central Government through the Office of Prime Minister of India. Explanation: Non-governmental entities are not precluded per se to undertake a space activity. (2) The Department of Space, acting under the aegis of the Office of the Prime Minister of India shall be the administrative body for matters related to space affairs. (3) Subject to the provisions of this Act, the Department of Space shall have the power to take all such measures, as it deems necessary or expedient for the purpose of effective space administration. (4) i The Secretary, Department of Space shall be the Chief Executive Authority of the Department of Space. ii The Secretary shall also be the Chief Executive Authority for ensuring authorization and continuing supervision of space activities who shall give due consideration to the recommendations and suggestions of the Department of Space and such other competent body(s) in matters of authorization and supervision of space activities. (5) In particular, and without prejudice to the generality of the provisions of subsection (3), such measures may include measures with respect to all or any of the following matters, namely: i. Co-ordination of actions by the State Governments, officers and other authorities— (a) under this Act, or the rules made thereunder, or (b) under any other law for the time being in force which is relatable to the objects of this Act; ii. Planning and execution for authorization and/or supervision of space activity/activities; iii. Laying down standards for the quality of space objects; iv. Restriction of areas in which any space activity, operations or processes related to space activity shall not be carried out or shall be carried out subject to certain safeguards; v. Examination of manufacturing processes, materials and space objects intended to be launched into outer space. vi. Inspection of any premises, equipment, machinery, manufacturing or other processes, materials or space objects and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for ensuring authorization and/or supervision;

5.2 Draft National Space Legislation 202_

121

vii. Seizure of documents, equipment, machinery, manufacturing or other processes, materials or space objects relating to space activity; viii. Collection and dissemination of information in respect of matters relating to space activity; ix. Laying down procedures and safeguards for the prevention of accidents on Earth or outer space which may invoke national or international liability and remedial measures for such accidents; x. Preparation of directions, guidelines, orders relating to the prevention and control of environmental debris; xi. Preparation of directions, guidelines, orders relating to return of space objects, protection of space artefacts; xii. Suspension, revocation of authorization, levy fine as required on caseto-case basis; xiii. Carrying out and sponsoring research and studies relating to space activities; xiv. Such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act. (6) The Central Government may, if it considers necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions [including the power to issue directions under section (5)] of the Central Government under this Act and for taking measures with respect to such of the matters referred to in subsection (4) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures. 4. Appointment of Officers and Their Power and Functions (1) Without prejudice to the provisions of subsection (4) of section 3, the Central Government may appoint officers with such designation as it thinks fit for the purposes of this Act and may entrust to them such of the powers and functions under this Act as it may deem fit. (2) The officers appointed under subsection (1) shall be subject to the general control and direction of the Central Government or, if so, also of the authority or authorities, if any, constituted under subsection (6) of section 3 or of any other authority or officer. 5. Power to Give Directions Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and

122

5 Final Conclusion and Proposal

performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. Explanation: For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct— (a) The closure, prohibition or regulation of any space industry, operation or process; or (b) Seizure of documents, equipment, machinery, manufacturing or other processes, materials or space objects relating to space activity; (c) Suspension or revocation of authorization of space activity. 6. Power to Delegate Without prejudice to the provisions of subsection (5) of section 3, the Central Government may, by notification in the Official Gazette, delegate, subject to such conditions and limitations as may be specified in the notifications, such of its powers and functions under this Act [except the powers to constitute an authority under subsection (6) of section 3] as it may deem necessary or expedient, to any officer, State Government or other authority. 7. Power to Make Rules The Central Government may, by notification in the Official Gazette, make rules in respect of all or any of the matters referred to in Section 3. 8. Information, Reports Or Return The Central Government may, in relation to its function under this Act, from time to time, require any person, officer, Secretary, or other authority to furnish to it or any prescribed authority or officer any reports, returns, statistics, accounts and other information and such person, officer, Secretary or other authority shall be bound to do so. Chapter 3 Procedure to Grant Authorization 9.

Application for Authorization (1) Any person intending to undertake any space activity shall submit an application for authorization in the prescribed format to the Secretary. Provided if space activity is to be carried by the Government of India, no such authorization is required. (2) Every application for grant of authorization shall be for one space activity only and shall be made in the prescribed form and filed in the application office, designated by the Department of Space.

5.2 Draft National Space Legislation 202_

123

(3) Every application under this section shall state that the applicant is in possession of required technological and financial capacity including environmental safety and emergency measures to carry out the proposed space activity and shall submit an undertaking that the proposed space activity is not contrary to the safety, security and international obligations of India. (4) Every application under this section shall be accompanied by such necessary documents as prescribed by the rules laid down by the Department of Space. 10. Procedure for Authorization (1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

Upon receipt of an application for authorization of space activities, the Scrutinizing Committee, constituted by the Department of Space shall conduct a preliminary enquiry as per the rules formulated by the Department of Space to ascertain that the proposed space activity is in accordance with the provisions of the Act. Where the preliminary inquiry is found to be satisfactory, the application shall be forwarded to the Space Activities Approval Committee constituted by the Department of Space. The Space Activities Approval Committee as per the rules formulated by the Department of Space shall conduct a thorough investigation of the facts stated in the application, verify the documents furnished and ascertain the technological and financial status of the applicant capacity. For the purpose of ascertaining, the technological capacity of the applicant, the Space Activities Approval Committee may consult such experts/organization that it thinks fit. Upon completion of investigation, the Space Activities Approval Committee shall formulate a written report as to its opinion regarding grant of authorization and forward it to the Secretary for its approval. Based on the written report of the Space Activities Approval Committee, the Secretary in consultation with the members of the Department of Space may grant final approval for such time period as it deems appropriate. For deciding on the application for authorization, the Space Activities Approval Committee and the Department of Space shall give due considerations to the conditions of authorization mentioned in Chap. 4 of this Act. The Secretary shall communicate the applicant as expeditiously as possible, but not later than ninety days as to the decision for grant of authorization. Provided the Secretary may further extend the time limit to another ninety days for reasons stated in writing. Where the applicant is demanded to provide additional documents in accordance with Chap. 4 of this Act, the above time limit may be increased to one hundred and twenty days.

124

5 Final Conclusion and Proposal

(10) Upon expiry of the prescribed time period as the case may be, if no decision/communication is made to the applicant, the application shall be deemed to have been rejected. (11) All authorized space activity shall be deemed to be national space activity irrespective of whether the operator of space activity is non-governmental or governmental participant. (12) An applicant who has reason’s to believe that an application for authorization has been arbitrarily denied or unjust conditions for authorization has been imposed may approach the space dispute settlement board for redressal of his grievances. Chapter 4 Conditions for Granting Authorization 11. International Obligations No space activity shall be permitted if such activity is in breach of any of the international treaty/treaties to which India is a party. 12. Safety and Security (1) While granting authorization for undertaking space activity, safety and security of India shall be of topmost consideration. (2) Where the Secretary is satisfied that the proposed activity is a threat to the safety and security of India or any other nation, he shall reject the application with reasons stated in writing. (3) Authorization to undertake space activity shall only be for peaceful purpose. 13. Registration of Space Objects (1) All space objects i. Which are launched by the Government of India; ii. Which are launched from the territory of India; iii. Which are launched from the facility of India; iv. Whose launches is procured by India shall be registered by means of an entry in the National Registry which shall be maintained by the Central Government. Such space objects shall be identified by their unique registration number. Provided when there is a joint launch of space objects or the launch is procured by India whose registration is made by a State other than India, the registration in the National Register shall be dispensed with and shall be registered in an auxiliary register. Explanation: A unique registration number means no two-space objects shall have the same registration number even though they might have been launched in a single mission.

5.2 Draft National Space Legislation 202_

125

(2) As soon as possible the Central Government shall communicate to the Secretary General of the United Nations of the space object registered in the National Registry with the necessary information as stated in subsection (3). Provided when there is a joint launch of space object or launch is procured by India whose registration is made by a State other than India, furnishing of information to the Secretary General of the United Nations shall be dispensed with. (3) The National/Auxiliary Register of Space Objects shall include the following information: i. Name of the launching state(s); ii. Unique registration number of the space object; iii. Date and territory or location of launch; iv. Basic orbital parameters including nodal period, inclination, apogee, perigee; v. General information, purpose of the space object, expected duration of stay in the Orbit. (4) As the case demands the National/Auxiliary Register of Space Objects may include the following additional information i. Manufacturer/operator of space object; ii. As far as possible the constituent elements and instruments of space objects; iii. Any other relevant information. (5) i The registration of the space object shall be effective at the time of launch. ii Where a launch is procured for a non-governmental participant the onus of registration of space objects vests with the Central Government. iii Authorized non-governmental participants shall furnish all necessary information as to comply with the provisions of the registration of space object. (6) Any change or modification in the data pertaining to registration shall be i. Updated in the National Registry of space objects within thirty days when the operator of space objects become aware. ii. Communicated to the Secretary General of United Nations expeditiously. (7) Non-furnishing of information or furnishing of false information or nonupdating of information pertaining to registration of space object shall invite sanctions to the extent of revocation of authorization. (8) The Central Government shall maintain the national registry of the space object in an updated form and make it available to the public in both electronic and hard copy form.

126

5 Final Conclusion and Proposal

14. Jurisdiction and Control of Space Objects (1) The Government of India shall retain jurisdiction and control over space objects and personnel launched into outer space, which is registered in its National Registry. (2) Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their components parts, is not affected by their presence in outer space or on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to Earth. (3) Space objects and personnel launched into outer space that is registered in National Registry of India, found beyond the territory of India shall be returned to the Government of India. 15. Transfer of Authorized Space Activities (1) No transfer of an authorized space activity shall take place without the prior written authorization of the Secretary. (2) i Where the transferee operator is not a Citizen of India, a specific agreement prescribing the conditions of transfer with the home State of the third party in question shall be needed. ii The agreement shall specifically guarantee the indemnification to the Government of India against any future recourse against it under its international liabilities or claims for damages of the third party in question. (3) An application for transfer of an authorized activity shall be submitted jointly by the transferor and the transferee. (4) The authorization condition prescribed in Chap. 4 shall apply mutatis mutandis to the transfer authorization. (5) The Secretary may impose transfer conditions, which shall be binding on either the transferee operator or transferor operator or both. 16. Insurance (1) In order to cover liability for damages caused to persons and property, the prospective holder of authorization is under an obligation to take out a minimum insurance coverage of such amount as determined by the Central Government. (2) i. The Secretary may grant relaxation of the insurance amount up to the waiver of insurance where the intended space activity is for the purpose of scientific research and education having relevance to public purpose. ii. While granting relaxation or waiver for the insurance amount the secretary shall give due consideration to the risk involved in the proposed activity and the operator’s financial liability. (3) Insurance may not be necessary where the Government of India is itself the operator.

5.2 Draft National Space Legislation 202_

127

17. Environmental Safeguards (1) While granting authorization to the space activities the Secretary shall give due consideration to the effect of the proposed activity on public health and the environment of Earth and outer space. (2) An environmental impact assessment in a manner as prescribed by the Central Government shall be carried by authorities or experts designated by the Secretary— i. Prior to the launch of space object. ii. Periodic assessments during the operation of space object as to its consequences on the Environment of Earth or in Outer Space. iii. Where space object is returning to the Earth. (3) The operator shall make a disclosure in the application for authorization with regard to space launch or operations using nuclear energy/material. (4) The Secretary shall take all due measures as prescribed by the Central Government for the mitigation of space debris. (5) Where a space activity causes any damage to the environment of Earth or outer space, the holder of the authorization shall bear the restoration cost. 18. Ensuring Cooperation for Continuing Supervision The holder of the authorization shall ensure due cooperation for continuing supervision of space activities as required for the effective implementation of this Act. 19. Authorization Cost The authorization shall be levied for such cost as fixed by the Central Government. 20. Other Conditions The Secretary may levy any other condition, which he thinks appropriate to achieve the object and purpose of this Act. Chapter 5 Liability and Recourse 21. Liability for Damage (1) The Government of India shall bear the liability for damage caused by space objects launched by India or whose launch was procured by India or whose launch was carried from the territory or facility of India.

128

(2)

(3)

(4) (5)

5 Final Conclusion and Proposal

i. The liability to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight shall be absolute. Provided the Government of India shall be exonerated from absolute liability to the extent where the damage has resulted either partially or wholly from gross negligence or from an act or omission done with the intent to cause damage on part of a claimant state or of natural or juridical persons it represents. ii. In the event of damage being caused elsewhere than on the surface of the Earth or to the aircraft in flight, the Government of India shall be liable only if damage is due to its fault or the fault of the persons for whom it is responsible. An agreement regarding the apportionment of liability shall be compulsory in cases of (i) Joint launch procured by Government of India or carried from the territory and facility of India. (ii) The commercial and the non-commercial launch procured by the Government of India or carried from the territory and facility of India whose beneficiary is a State other than India. In case of damage to person and/or property caused by any space activity to a citizen of India not engaged in control/operation of such activity or by situations arising in S. 29 of the Act, the Government of India shall adequately compensate the victim. The Space Dispute Settlement Board shall have the jurisdiction to entertain claims for damages caused by space objects. Any payment to be made in discharge of liability arising due to damages caused by space objects shall be appropriated from the Consolidated Fund of India.

22. Indemnification (1) Where the Government of India has compensated damage caused by authorized space activity, the Central Government reserves the right to seek indemnification in the manner prescribed in Chap. 5 from such operator on whose behalf the payment was made. (2) For damage caused on the surface of the Earth or to aircraft in flight the right to seek indemnification comprises an amount up to the sum of insured risk, but no less than the minimum amount of insurance set in S.16. (3) The limitations set forth in subsection (2) does not apply where damage is caused due to the fault of the holder of authorization or his agents or if the holder of authorization or his agents has infringed any of the provision of this Act. (4) In cases of commercial, non-commercial and joint launch where India merely plays the role of launching state, that has no intention to control such space object after it has been launched, the State on whose behalf the launching was procured shall absolutely indemnify the Government of India for damage caused by such space object to the extent the Government of India has compensated damage caused.

5.2 Draft National Space Legislation 202_

129

(5) This section is not applicable where the Government of India is itself the operator or has authorized a space activity for governmental interest. Chapter 6 Prevention and Control of an Unauthorized Activity and Ensuring Continuing Supervision of Space Activities 23. Persons Carrying Space Activities to Comply With Authorization Conditions (1) No person shall undertake any space activity except under an authorization granted by the Secretary. (2) Once the authorization has been granted the conditions for authorization mentioned in Chap. 4 shall become binding upon the holder of authorization and any breach of conditions of authorization at any point of time shall amount to an offence punishable under the Act. i. For any breach of conditions for authorization the Secretary shall have the power (a) To issue directions as to comply with the conditions of authorization; (b) To levy such cost as he deems appropriate; (c) To suspend the authorization for such time period till the conditions of authorization are complied with; (d) To revoke the authorization; (3) Suspension, revocation or expiry of authorization does not by itself release the holder of authorization from his obligations. 24. Supervision of Space Activities (1) In order to ensure greater safety and security, to minimize the risk of damage occurring and liabilities if any arising thereto the Department of Space, shall constitute an independent space activities supervision committee who shall continuingly supervise all national space activities. (2) The holder of an authorization shall periodically update the space activities supervision committee of the status of space activities and the conditions of authorization being complied with. (3) The non-furnishing of information or the furnishing of false information or non-updating of information pertaining to the status of space object shall invite sanctions to the extent of revocation of authorization. (4) As far as possible for the purpose of effective supervision of national space activities, the space activities supervision committee shall submit a periodic report as per the rules to the Secretary who shall in turn report to the Central Government as to the status of all space objects, where India is a launching state.

130

5 Final Conclusion and Proposal

(5) Subject to the provisions of this section, the Secretary or the persons authorized by him shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place i. For the purpose of performing any of the functions the Central Government entrusted to him; ii. For the purpose of determining whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorization served, made, given or granted under this Act is being or has been complied with; iii. For the purpose of examining and testing any equipment, industrial plant, record, register, document or any other material object or conducting a search of any building in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and seizing any such equipment, industrial plant, record, register, document or other material object if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder. (6) Every person carrying on any industry, operation or process of handling any space object shall be bound to render all assistance to the person empowered by the Secretary under subsection (5) for carrying out the functions under that subsection and if he fails to do so without any reasonable cause or excuse, he shall be guilty of an offence under this Act. (7) If any person wilfully delays or obstructs any persons empowered by the Secretary under subsection (5) in the performance of his functions, he shall be guilty of an offence under this Act. Chapter 7 Dispute Resolution, Penalty, Offences 25. Space Dispute Settlement Board (1) The Central Government shall, by notification, establish, with effect from such date as may be specified, therein a board to be known as space dispute settlement board to exercise the jurisdiction, powers and authority conferred on such board by or under this Act. (2) A claim for compensation for damage may be presented to the space dispute settlement board not later than one year following the date of the occurrence of the damage. (3) If, however, the claimant does not know of the occurrence of the damage it may present a claim within one year following the date on which it learned of the aforementioned facts; however, this period shall in no event exceed one year following the date on which the claimant could reasonably be expected to have learned of the facts through the exercise of due diligence.

5.2 Draft National Space Legislation 202_

131

(4) The time limits specified in paragraphs 2 and 3 of this Section shall apply even if the full extent of the damage may not be known. In this event, however, the claimant shall be entitled to revise the claim and submit additional documentation after the expiration of such time limits until one year after the full extent of the damage is known. (5) The board shall determine the compensation in accordance with the principles of justice and equity, in order to provide such reparation in respect of the damage as will restore the claimant, to the condition, which would have existed if the damage had not, occurred. (6) Wherever appropriate the board must encourage the parties for settlement of commercial disputes by arbitration and the Central Government shall provide for establishment of list of arbitrators specialized in space matters. 26. Bar of Jurisdiction (1) No civil court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged, which may be adjudicated upon by the board. (2) No court shall take cognizance of any offence under this Act except on a complaint made by— (a) The Central Government or any authority or officer authorized in this behalf by that Government; or (b) Any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorized as aforesaid. (3) No suit, prosecution or other legal proceeding shall lie against the Government or any officer or other employee of the Government or any authority constituted under this Act or any member, officer or other employee of such authority in respect of anything which is done or intended to be done in good faith in pursuance of this Act or the rules made or orders or directions issued thereunder. i. Appeals from Space Dispute Settlement Board shall lie before the Space Tribunal to be established by the Government of India. ii. Appeals from the Space Tribunal shall lie before the Supreme Court of India. 27. Penalty for Contravention of the Provisions of the Act and the Rules, Orders and Directions Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to seven years with fine which may extend to one crore rupees, or with both.

132

5 Final Conclusion and Proposal

28. Offences by Companies (1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. (2) Provided that nothing contained in this subsection shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (3) Notwithstanding anything contained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officers of the company, such director, manager, secretary or other officers shall also deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purpose of this section— (a) “Company” means anybody corporate and includes a firm or other association of individuals; (b) “Director”, in relation to a firm, means a partner in the firm. Chapter 8 Return of Space Object, Personnel, Space Artefacts 29. Return of Space Object and Personnel (1) Owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in the territory of India, the Secretary shall take all possible steps to rescue them and render them all necessary assistance. (2) Personnel of a spacecraft covered in situations falling under subsection (1) shall not be subject to prosecution for entry in India by any of the laws in India and shall be safely and promptly returned to the appropriate state. (3) The space objects or its component parts not registered in the national registry of India, which is found in the territory of India, shall be returned without delay to the competent authority. (4) In either of the situation referred in subsection (1) and (3) the Central Government shall notify the competent authority and the Secretary General of United Nations. (5) If the competent authority cannot be identified or communicated immediately the Central Government shall make a public announcement by all appropriate means.

5.2 Draft National Space Legislation 202_

133

(6) Expenses incurred in either of the situations referred in subsection (1) and (3), to recover and return of space objects or its component parts shall be borne by the launching state of such space objects and personnel. 30. Access to Space Artefacts (1) Subject to the rules made by the Central Government, the Secretary may grant authorization to access artefacts including stations, installations, equipment, space vehicles, etc., located either on Earth or on any other celestial bodies or in orbits. Provided, no authorization shall be granted— (a) Where such artefacts are not registered in the national registry of India. (b) Where the general condition of authorization defined in Chap. 4 of this Act is in derogation. (2) The authorization shall be granted for such time period and on assurance that safety and normal operations in the facility to be visited is not to be interfered. (3) Any damage caused to the space artefacts shall make the party liable to compensate the Government of India. (4) Violation of the authorization condition to access or unauthorized access to artefacts shall amount to an offence punishable under this Act. Chapter 9 Miscellaneous 31. Members, Officers and Employees of the Authority Constituted Under Section 3 to be Public Servants All the members of the authority, constituted, if any, under Section 3 of this Act and all officers and other employees of such authority when acting or purporting to act in pursuance of any provisions of this Act or the rules made or orders or directions issued thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860). 32. Effect of Other Laws (1) Subject to the provisions of subsection (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. (2) Where any act or omission constitutes an offence punishable under this Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act.

134

5 Final Conclusion and Proposal

33. Intellectual Property Rights The Laws related to intellectual property rights in India shall be applicable to space technology including inventions and other activities in outer space. 34. Technology Transfer For capacity building amongst the non-governmental entities, the Central Government shall formulate and update time-to-time Space Technology Transfer Policy pursuant to which the non-governmental entities shall have access to space technology. 35. Right to Information (1) Subject to the provisions of the Right to Information Act, 2005 Citizens shall have right to information. (2) The Department of Space shall take necessary measures for the effective implementation of the Right to Information Act, 2005.

Correction to: Final Conclusion and Proposal

Correction to: Chapter 5 in: K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6_5 In the original version of the book, Section 5.2 of Chapter 5 has been changed from “Draft National Space Legislation 201_” to “Draft National Space Legislation 202_”. The chapter and the book have been updated with the change.

The updated version of this chapter can be found at https://doi.org/10.1007/978-981-15-2675-6_5 © Springer Nature Singapore Pte Ltd. 2020 K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6_6

C1

Appendix

Future Scope of the Work

It is humbly accepted that the proposed draft legislation is neither an exhaustive mechanism nor was it intended, to address all the legal issues related to various space activities in India. Legislation has to be flexible and accommodative for changes inevitable in the future. It is neither possible nor practically feasible to incorporate every minute detail in the legislation. Such details are the realm of implementing decrees or rules. Therefore, the foremost future scope of the work is an articulation of implementing decrees/rules, wherever required. The formulation of such implementing decrees/rules will be a techno-legal exercise inviting collective efforts from scientist, lawyers and policymakers. As expressed in the previous chapter, India has a multifaceted space programme, each facet of which involves its own distinct legality. It will be a herculean task to bring all the dimensions in one piece of legislation. It is suggested that each of them should be addressed theme-wise either through a distinct piece of legislation or rules pursuant to this legislation. To this extent, further research work can be undertaken for drafting regulations pertaining to space transportation systems; satellite communications; remote sensing, including data processing and distribution; satellite navigational systems; human space flight and others. Even space administration in itself can further be organized giving it in an institutional shape defining its power, functions, eligibility of administrative members; finance; budgets; ambit of activities, etc. With the completion of these future works, one can expect a dynamic, competitive, promising legal regime for space activities in India, as its space programme itself has been, comparable with any of the developed legal systems in the world. It can be anticipated that the future of space law in India is very bright and there will be no dearth of teaching and research, industry participation and job opportunities in the space sector. For such an aspiring unfolding, the need of the hour is more and more scientific research on legal issues that arise from various space activities. Legal research on space issues must be encouraged both financially and strategically, as it has been with scientific and technological research. Government and universities in India should provide projects and scholarships to motivate young minds to take up this evolving branch of law in India. © Springer Nature Singapore Pte Ltd. 2020 K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6

135

Bibliography

Books Das S.K. 2007. Introduction. In Touching Lives—The Little Known Triumphs of the Indian Space Programme. UK: Penguin Publishers. Diederiks-Verschoor, I.H.P., and V. Kopal. 2008. An Introduction to Space Law. The Netherlands: Wolters Kluwer. Feuerbacher, B., and H. Stoewer (eds.). 2006. Utilization of Space—Today and Tomorrow. Berlin: Springer. Froehlich, Annette, and Seffinga Vincent (eds.). 2019. National Space Legislation—A Comparative and Evaluative Analysis. Cham: Springer. Harvey, B., et al. 2010. Emerging Space Powers—The New Space Programs of Asia, the Middle East and South America. Berlin: Springer. Hermida, Julian. 2004. Legal Basis for a National Space Legislation. Dordrecht: Kluwer. Jakhu, Ram S., Joseph N. Pelton, and Yaw O.M. Nyampon. 2017. Space Mining and Its Regulation. Cham: Springer. Jasentuliyana, Nandasiri. 1999. International Space Law and the United Nations. Boston: Kluwer Law International. Jennings, Robert, and Watts Arthur (eds.). 1992. Oppenheim’s International Law, vol. 1. New York: Longman Publishers. Kak, Subhash. 2000. Astronomy and its role in Vedic culture. In Science and Civilization in India, vol. 1, ed. G.C. Pande. Delhi: Munshiram Manoharlal. Masson-Zwaan, Tanja, and Hobe Stephan (eds.). 2010. Manfred Lachs, the Law of Outer Space—An Experience in Contemporary Law-Making. Boston: Martinus Nijhoff Publishers. Pelton, Joseph N. 2013. Space Debris and Other Threats from Outer Space. New York: Springer. Rao, P.V. Manoranjan (ed.). 2015. From Fishing Hamlet to Red Planet. New Delhi: Harper Collins Publisher India. Rao, P.V. Manoranjan, and R. Krishnan. 2012. A Brief History of Rocketry in ISRO. Hyderabad: Universities Press (India) Private Limited. Rao, U.R. 2014. India’s Rise as Space Power. New Delhi: Foundation Books. Shaw, Malcolm N. 1997. International Law, 4th ed. Cambridge: Cambridge University Press. Sheehan, Michael. 2007. The International Politics of Space. London: Routledge, Taylor and Francis Group. Sundahl, Mark J. 2013. The Cape Town Convention—Its Application to Space Assets and Relation to the Law of Outer Space. Leiden: Martinus Nijhoff Publishers. Viikari, Lotta. 2008. The Environment Element in Space Law. Leiden: Martinus Nijhoff Publishers. © Springer Nature Singapore Pte Ltd. 2020 K. Abhijeet, National Space Legislation for India, https://doi.org/10.1007/978-981-15-2675-6

137

138

Bibliography

von der Dunk, Frans G. 1998. Private Enterprise and Public Interest in the European Spacescape. Leiden: Leiden University. Williamson, Mark. 2006. Space: The Fragile Frontier. Reston: AIAA.

Articles Abdul Kalam, A.P.J. 2015. India’s First Launch Vehicle. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, et al., 325–388. New Delhi: Harper Collins Publishers India. Abhijeet, Kumar. 2015. Gateway Under Construction. The Statesman, November 30, 14. Abhijeet, Kumar. 2015. Space Legislation for Developing Countries, Lessons from Europe. In 2015 Proceedings of the International Institute of Space Law, 577–586. Eleven International Publishing. Abhijeet, Kumar. 2016. Development of National Space Law for India. Astropolitics—The International Journal of Space, Politics and Policy 14 (2–3): 185–202. Abhijeet, Kumar. 2016. Privatisation of PSLV—What the Law of Outer Space Demands. In 2016 Proceedings of the International Institute of Space Law, 539–546. Eleven International Publishing. Abhijeet, Kumar. 2016. State Practices Towards National Space Legislation. In Commercialisation and Privatisation of Outer Space, Issues for National Space Legislation, ed. Rao R. Venkata and Abhijeet Kumar, 79–86. New Delhi: KW Publishers. Abhijeet, Kumar. 2017. Bangalore Declaration—A Beacon for National Space Legislation for India. In Space Law: The Emerging Trends, ed. S. Bhat, 291–306. Eastern Law House, Pvt. Ltd. Abhijeet, Kumar. 2017. India and the Outer Space Treaty. In Fifty Years of the Outer Space Treaty— Tracing the Journey, ed. Ajey Lele, 120–129. IDSA. Abhijeet, Kumar. 2017. Privatisation of Space in India and the Need for a Law. In Space India 2.0: Commerce, Policy, Security and Governance Perspectives, ed. Rajagopalan Rajeswari Pillai and Prasad Narayan, 103–118. Observer Research Foundation. Abhijeet, Kumar, et al. 2016. Legislative Situation in India Regarding Satellite Navigation. In Inside GNSS, 38–43. Achilleas, Philippe. 2005. French Space Legislation Development—The New French Legislation on Satellite Frequencies Assignments. In 2005 Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space, 130–133. AIAA. Achilleas, Philippe. 2010. Regulation of Space Activities in France. In National Regulation of Space Activities, ed. Ram S. Jakhu, 109–122. Dordrecht: Springer. Achilleas, Philippe, and Loubeyre Romain. 2011. Regulatory Framework for Authorizing Satellite Applications, the Case of Telecommunication. In Contracting for Space, ed. Lesley Smith Jane and Baumann Ingo, 99–111. Farnham: Ashgate Publishers. Aoki, Setsuko. 2010. Regulation of Space Activities in Japan. In National Regulation of Space Activities, ed. Ram S. Jakhu, 199–224. Aoki, Setsuko. 2012. Japanese Space Activities in the Making. German Journal of Air and Space Law 61 (1): 111–128. Arunan, S. 2015. Mars Orbiter Mission. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, et al., 1555–1606. New Delhi: Harper Collins Publishers India. Back-Impallomeni, Elisabeth. 2008. Necessity for the Development of National Space Law. In National Space Law: Development in Europe—Challenges for Small Countries, ed. Christian Brünner and Edith Walter, 28–30. Vienna: Böhlau Verlag. Benkö, Marietta, and Kai-Uwe Schrogl. 2005. The UN Committee on the Peaceful uses of Outer Space: Adoption of a Resolution on the Concept of the “launching State” and other Recent Developments. German Journal of Air and Space Law 54: 57–67.

Bibliography

139

Böckstiegel, Karl-Heinz. 1994. The Term ‘Appropriate State’ in International Space Law. In 1994 Proceedings of the Thirty-Seventh Colloquium of the Law of Outer Space, 77–79. AIAA. Böckstiegel, Karl-Heinz. 1995. The Term ‘Launching State’ in International Space Law. In 1994 Proceedings of the Thirty-Seventh Colloquium on the Law of Outer Space, 80–83. AIAA. Böckstiegel, Karl-Heinz, Paul Michael Krämer, and Isabel Polley. 1998. Patent Protection for the Operation of Telecommunication Satellite Systems in Outer Space? German Journal of Air and Space Law 47: 3–17. Burk, Dan L. 1993. Protection of Trade Secrets in Outer Space Activity. A Study in Federal Preemption. Seton Hall Law Review 23: 561–639. Chatzipanagiotis, Michel. 2007. Registration Space Objects and Transfer of Ownership in Orbit. German Journal of Air and Space Law 56 (2): 229–238. Cheng, Bin. 1968. The 1967 Outer Space Treaty. Journal du Droit International 95: 532–534. Cheng, Bin. 1995. International Responsibility and Liability for Launch Activities. Air & Space Law XX: 297–310. Cheng, Bin. 1998. Article VI of the 1967 Space Treaty Revisited: “International Responsibility”, “National Activities” and “The Appropriate State”. Journal of Space Law 26: 26–29. Chicago Times. 2016. New Laws Map Encourage Japan’s Space Industry. Chicago Times, December 15. Christol, Carl Q. 1980. International Liability for Damage Caused by Space Objects. American Journal of International Law 74: 346–371. Clerc, Philippe. 2011. Consequences of the French Space Law on Space Operations (FSOA) on CNES’s Mission as a Contracting Space Agency. In Contracting for Space, ed. Lesley Jane Smith and Ingo Baumann, 117–132. Farnham: Ashgate Publishers. Coustion, Mireille. Introduction Space Operation Act 2008. In Space Law Basic Legal Document, ed. K.H. Böckstiegel, M. Benkö, and Kai-Uwe Schrogl, E.XVI, 3. Utrecht: Eleven International Publishing. Couston, Mireille. 2011. The Legal and Financial Liability Regime Under the New French Space Legislation. In Contracting for Space, ed. Lesley Jane Smith and Ingo Baumann, 319–336. Farnham: Ashgate Publishers. Cypse, D.A. 1993. International Law & Policy of Extraterrestrial Planetary Protection. Jurimetrics— Journal of Law, Science and Technology 33: 324. Daniel, R.R. 1992. Space Science in India. Indian Journal of History of Science 27 (4): 485–499. Dann, Phillip. 1992. Law and Regulation of Satellite Communications. Journal of Space Law 20 (1): 1–25. Davis, Michael E. 2000. The Regulation of the Australian Space Launch Industry. German Journal of Air and Space Law 49 (1): 67–68. de Brabander-Ypes, Heleen. 2015. Introduction to Dutch Space Activities Act. In Space Law Basic Legal Documents, E.XIV.1, 2. Utrecht: Eleven International Publishing. Dempsey, Stephen. 2006. United States Space Law: Commercial Space Launches and Facilities. In 2006 Proceedings of the Forty-Ninth Colloquium on the Law of Outer Space, 69–79. AIAA. Eigenbrodt, S. 1989. Out to Launch: Private Remedies for Outer Space Claims. Journal of Air Law and Commerce 55: 185–222. Filho, José Monserrat. 2003. Brazilian Launch Licensing and Authorizing Regimes. In Proceedings of the United Nations/International Institute of Air and Space Law Workshop on Capacity Building in Space Law, 158–166. United Nations ST/SPACE/14. Freeland, Steven. 2006. Difficulties of Implementing National Space Legislation Exemplified by the Australian Approach. In Project 2001 Plus—Global and European Challenges for Air and Space Law at the Edge of the 21st Century, 65–92. Köln: Carl Heymann Verlag. Freeland, Steven. 2004. The Australian Regulatory Regime for Space Launch Activities: Out to Launch? In 2004 Proceedings of the Fort-Seventh Colloquium on the Law of Outer Space, 56–65. AIAA. Freeland, Steven. 2004. When Laws are Not Enough—The Stalled Development of an Australian Space Launch Industry. University of Western Sydney Law Review 8 (1): 79–85.

140

Bibliography

Gabrynowicz, Joanne Irene. 2010. One Half Century and Counting: The Evolution of US National Space Law and Three Long-Term Emerging Issues. Harvard Law and Policy Review 4: 405–426. Gerhard, Michael. 2001. Project 2001—Legal Framework for the Commercial Use of Outer Space. German Journal of Air and Space Law 50 (2): 240–246. Gerhard, Michael. 2002. The Law of Ukraine on Space Activities. German Journal of Air and Space Law 51 (1): 57–59. Gerhard, Michel. 2002. Transfer of Operation and Control with Respect to Space Objects— Problems of Responsibility and Liability. German Journal of Air and Space Law 51 (4): 571–581. Gerhard, Michael. 2008. The State of the Art and Recent Trends in the Development of National Space Law. In National Space Law: Development in Europe—Challenges for Small Countries, ed. Christian Brünner and Edith Walter, 58–72. Vienna: Böhlau Verlag. Gerhard, Michael. 2009. Article VI. In Cologne Commentary on Space Law, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, vol. 1, 116. Cologne: Carl Heymanns. Gerhard, Michael, and Kristina Moll. 2004. The Gradual Change from “Building Blocks” to a Common Shape of National Space Legislation in Europe. In Towards a Harmonized National Space Legislation in Europe, ed. Stephan Hobe, Bernarhard Schmidt-Tedd, and Kai-Uwe Schrogl, 46–50. Cologne. Gerhard, Michael, and Kristinia Moll. 2005. Introduction by Rapporteurs, Session 1: Perspectives for More National Space Legislation. In Project 2001 Plus—Global and European Challenges for Air and Space Law at the Edge of 21st Century, ed. Stephan Hobe, Bernarhard Schmidt-Tedd, and Kai-Uwe Schrogl, 19–50. Köln: Carl Heymann Verlag. Gerhard, Michael, and Kai-Uwe Schrogl. 2001. Report of the ‘Project 2001’ Working Group on National Space Legislation. In ‘Project 2001’—Legal Framework for the Commercial Use of Outer Space, ed. Karl-Heinz Böckstiegel, 529–564. Köln: Carl Heymanns Verlag. Gerhard, Michael, and Isabelle Reutzel. 2017. Law Related to Space Transportation and Spaceports. In Routledge Handbook of Space Law, ed. Ram S. Jakhu and Paul Stephen Dempsey, 268–288. New York: Routledge, Taylor and Francis Group. Goh, G.M., B. Kazeminejad. 2004. Mars Through the Looking Glass: An Interdisciplinary Analysis of Forward and Backward Contamination. Space Policy 20: 217–225. Goswami, J.N. 2015. Chandrayaan 1 Mission—The New Face of the Moon. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, 1452–1496. New Delhi: Harper Collins Publishers India. Hedman, Niklas. 2008. Swedish Legislation on Space Activities. In National Space Law, ed. Christian Brünner and Edith Walter, 73–80. Vienna: Böhlau Verlag. Hedman, Niklas. 2003. Swedish Space Legislation. In Proceedings of the United nations/International Institute of Air and Space Law Workshop on Capacity Building in Space Law, 185–191. United Nations ST/SPACE/14. Hertzfeld, Henry, and Frans G. von der Dunk. 2005. Bringing Space Law into the Commercial World: Property Rights Without Sovereignty. Chicago Journal of International Law 5: 89–90. Hobe, Stephan. 2001. Harmonization of National Laws as an Answer to the Phenomenon of Globalization. In ‘Project 2001’—Legal Framework for the Commercial Use of Outer Space, ed. Karl-Heinz Böckstiegel, 637–638. Köln: Carl Heymanns Verlag. Hobe, Stephan. National Space Legislation: What the International Law Demands and How it is Implemented. In Commercialisation and Privatisation of Outer Space: Issues for National Space Legislation, ed. R. Venkata Rao and Kumar Abhijeet, 31–36. New Delhi: KW Publishers. Hobe, Stephan. 2011. Space law—An Analysis of Its Development and Its Future. In Outer Space in Society, Politics and Law, ed. Christian Brünner and Alexander Soucek, 476–490. New York: Springer. Hobe, Stephan. 2003. The ILA Model Law for National Space Legislation. German Journal of Air and Space Law 62 (1): 81–95. Hobe, Stephan. 2009. Commentary on ‘Article I’. In Cologne Commentary on Space Law, vol. 1, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 31. Cologne: Carl Heymanns.

Bibliography

141

Hobe, Stephan. 2016. The International Institute of Space Law adopts Position Paper on Space Resource Mining. German Journal of Air and Space Law 65 (2): 204–209. Hobe, Stephan, and Kuan-Wei Chen. 2017. Legal Status of Outer Space and Celestial Bodies. In Routledge Handbook of Space Law, ed. Ram S. Jakhu and Paul Stephen Dempsey, 25–41. New York: Routledge, Taylor and Francis Group. Hobe, Stephan, and Philip de Man. 2017. National Appropriation of Outer Space and State Jurisdiction to Regulate the Exploitation, Exploration and Utilization of Space Resources. German Journal of Air and Space Law 66 (3): 460–475. Hobe, Stephan, Bernarhard Schmidt-Tedd, and Kai-Uwe Schrogl (eds.). 2004. Proceedings of the Workshop Towards a Harmonized National Space Legislation in Europe, 29–30. Berlin. Hobe, Stephan, Bernarhard Schmidt-Tedd, and Kai-Uwe Schrogl (eds.). 2005. Project 2001 Plus— Global and European Challenges for Air and Space Law at the Edge of 21st Century. Köln: Carl Heymann Verlag. Hörl, Kay-Uwe, and Kamlesh Gungaphul. 2005. Problems related to “Change of Ownership” with Respect to Registration—The Industry View. In Proceedings of the Project 2001 Plus Workshop on Current Issues in the Registration of Space Objects, 20–21 January 2005, ed. Stephan Hobe, Bernard Schmidt-Tedd, and Kai-Uwe Schrogl, 63–70. Berlin. Hughes, Timothy Robert, and Esta Rosenberg. 2005. Space Travel Law (and Politics): The Evolution of the Commercial Space Launch Amendments Act of 2004. Journal of Space Law 31 (1): 1–80. Hulsroj, Peter, and Anja Nakarada Pecujlic. 2016. New in the Nest: The Danish Space Act. Air and Space Law 41 (6): 503–510. Jakhu, Ram S. 2010. Regulation of Space Activities in Canada. In National Regulation of Space Activities, ed. Ram S. Jakhu, 81–108. The Netherlands: Springer. Jakhu, Ram S., Catherine Doldirina, and Yaw Otu Mankata Nyampong. 2010. Review of Canada’s Remote Sensing Space System Act of 2005. In Annals of Air and Space Law, vol. XXXVII, 399–425. Kasturirangan, K., and K.R. Sridhara Murthi. 2015. India’s Governance in Outer Space—Past, Present and Future. The Journal of Governance 10: 173–186. Kaul, Ranjana. 2005. National Space Legislation: A Blueprint for India. In Proceedings of the ISRO-IISL Space Law Conference 2005, Bringing Space Benefits to the Asia Region, 26–29 June 2005, 2.3–2.42. Allied Publishers. Kaul, Ranjana. 2017. Regulation of Navigational Satellites in India. In Routledge Handbook of Space Law, ed. Ram S. Jakhu and Paul Stephen Dempsey, 313–318. New York: Routledge, Taylor and Francis Group. Kaul, Sanat. 2017. Need for Space Governance for India and Global Space Governance. The Journal of Space Safety Engineering 4: 51–56. Kaul, Ranjana, and Ram S. Jakhu. 2010. Regulation of Space Activities in India. In National Regulation of Space Activities, ed. Ram S. Jakhu, 153–198. Dordrecht: Springer. Kayser, Valérie. 1992. Commercial Exploitation of Space: Developing Domestic Regulation. Annals of Air and Space Law 17: 187–197. Kelson, John M. 1972. State Responsibility and the Abnormally Dangerous Activity. Harvard International Law Journal 13: 197–244. Kerrest, Armel. 1997. Remarks on the Responsibility and Liability for Damages Caused by Private Activity in Outer Space. In 1997 Proceedings of the Fortieth Colloquium on the Law of Outer Space, 134–140. AIAA. Kerrest, Armel. 1999. Remarks on the Notion of Launching State. In 1999 Proceedings of the Forty-Second Colloquium on the Law of Outer Space, 308–315. AIAA. Kerrest, Armel. 2002. Sharing the Risk of Space Activities: There Questions, Three Solutions. In Project 2001—Legal Framework for the Commercial Use of Outer Space, ed. Karl-Heinz Böckstiegel, 135–138. Köln: Carl Heyman Verlag. Kerrest, Armel. 2005. Liability for Damage caused by Space Activities. In Space Law: Current Problems and Perspectives for Future Regulation, ed. Marietta Benkö and Kai-Uwe Schrogl, 91–111. Utrecht: Eleven International Publishing.

142

Bibliography

Kerrest, Armel. 2006. Status of the Implementation of National Space Legislation and the results of the Project 2001 plus Working Group. In ‘Project 2001 Plus’—Global and European challenges for Air and Space Law at the Edge of the 21st Century, ed. Stephan Hobe and Bernard SchmidtTedd, 51–64. Köln: Carl Heymann Verlag. Kerrest, Armel. 2012. Legal Aspects of Transfer of Ownership and Transfer of Activities. In 2012 Proceedings of the International Institute of Space Law, 794–800. Kerrest, Armel, and Lesley Jane Smith. 2009. Article VII. In Cologne Commentary on Space Law, vol. 1, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 126–145. Cologne: Carl Heymanns. Kibe, Suresh. 2015. Satellite Navigation in India. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, et al., 1277–1301. New Delhi: Harper Collins Publishers India. Kochhar, R.K. 1991. The Growth of Modern Astronomy in India 1651–1960. Vistas in Astronomy 34: 69–105. Kopal, V. 1980. The Question of Defining Outer Space. Journal of Space Law 8 (2): 154–173. Kopal, V. 2001. International and National Space Law. In ‘Project 2001’—Legal Framework for the Commercial Use of Outer Space, ed. Karl-Heinz Böckstiegel, 571–574. Cologne: Carl Heymanns Verlag. Kumar, A.S. Kiran. 2015. Indian Regional Navigation Satellite System (IRNSS). In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, et al., 1544–1554. New Delhi: Harper Collins Publishers India. Lafferranderie, Gabriel. 2005. Jurisdiction and Control of Space Objects and the Case of an International Intergovernmental Organization (ESA). German Journal of Air and Space Law 54: 228–229. Larsen, Paul B. 1992. Cross-Waivers of Liability. In 1992 Proceedings of the Thirty-Fifth Colloquium on the Law of Outer Space, 91–96. AIAA. Listner, Michael. 2016. A Comprehensive First Look at Denmark’s Domestic Space Law. The Space Review, May 31. Malagar, Leo B., and Marlo Apalisok Magdoza-Malagar. 1999. International Law of Outer Space and the Protection of Intellectual Property Rights. Boston University Law Journal 17: 312–364. Mani, V.S. 2009. Space Policy and Law in India and its Relevance to the Pacific Rim. Journal of Space Law 35 (2): 615–634. Mann, Bruce. 2009. Current Status and Recent Developments in Canada’s National Space Law and its Relevance to Pacific Rim Space Law and Activities. Journal of Space Law 35 (2): 511–522. Marboe, Irmgard. 2011. National Space Legislation. In Outer Space in Society, Politics and Law, ed. Christian Brünner and Alexander Soucek, 439–463. Wien: Springer. Marboe, Irmgard. 2012. The New Austrian Outer Space Act. German Journal of Air and Space Law 61 (1): 26–61. Marboe, Irmgard. 2015. National Space Legislation. In Handbook of Space Law, ed. Frans von der Dunk and Fabio Tronchetti, 127–204. Cheltenham: Edward Elgar Publishing. Marboe, I., and F. Hafner. 2011. National Authorisation Mechanism in Implementation of the UN Treaties. In National Space Legislation in Europe, ed. Frans G. von der Dunk, 29–72. Leiden: Martinus Nijhoff Publishers. Marboe, Irmgard, and Karin Traunmüllerr. 2012. Small Satellites and Small States: New Incentives for National Space Legislation. Journal of Space Law 38 (2): 289–320. Marboe, Irmgard, S. Aoki, Tare Brisibe. 2015. 2013 Resolution Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space. In Cologne Commentary on Space Law, vol. 3, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 487–603. Cologne: Carl Heymanns. Marchisio, Sergio. 2009. Article IX. In Cologne Commentary on Space Law, vol. 1, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 176. Cologne: Carl Heymanns. Martinez, Peter. 2015. The Development of Space Law in South Africa. German Journal of Air and Space Law 64 (2): 353–360.

Bibliography

143

Meredith, Pamela L. 1989. A Comparative Analysis of United States Domestic Licensing Regimes for Private Commercial Space Activities. In 1989 Proceedings of the Thirty-Second Colloquium on the Law of Outer Space, 373–381. AIAA. Michielsen, Patrick. 2016. The Belgian Space Act: An Innovative Legal Safeguard to Boost the Space Industry. Air and Space Law 41 (2): 89–117. Miyamoto, Tomoko. 1999. Space-Related Aspects of Intellectual Property: WIPO’s Role and Activity. In Proceedings of 3rd ECSL Colloquium on International Organization’s and Space Law, Perugia, May 6–7, 103–107. Mkumatela, Luthando S. 2011. Review of the South African Regulatory Framework in the Context of International Space Regulation. In 2011 Proceedings of the International Institute of Space Law, 289–292. Eleven International Publishing. Murthi, K.R. Sridhara. 2016. Potentials of Private Participation in the Indian Space Sector: Policy and Legal Needs. In Commercialisation and Privatisation of Outer Space, ed. R. Venkata Rao and Kumar Abhijeet, 3–12. New Delhi: KW Publishers. Nagappa, Rajaram. 2015. Space Security in India. In Handbook of Space Security, vol. 1, ed. Kai-Uwe Schrogl, et al., 453–468. New York: Springer. Narayana, K. 2015. The Spaceport of ISRO. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, 967–1007. New Delhi: Harper Collins Publishers India. Narayanmoorthy, N. 2015. PSLV the Workhorse of ISRO. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, 412–490. New Delhi: Harper Collins Publishers India. Nase, Vernon. 2015. Introduction to Space Activities Act 1998. In Basic Legal Documents, vol. 5, E. VII, 1. Utrecht: Eleven International Publishing. Neto, Olavo de O. Bittencourt. 2009. Private Launch Activities on Brazilian Territory—Current Legal Framework. German Journal of Air and Space Law 58 (3): 429–449. Perek, L. 1977. Scientific Criteria for the Delimitation of Outer Space. Journal of Space Law 5: 111–124. Qizhi, He. 1982. The Problem of Definition and Delimitation in Outer Space. Journal of Space Law 10: 157–163. Qizhi, He. 1984. The Registration Convention and Maintenance of the Peaceful Uses of Outer Space. In Maintaining Outer Space for Peaceful Uses, ed. Nandasiri Jasentuliyana, 117–120. Tokyo: The United Nations University. Ramakrishnan, S. 2015. Next-Generation Launcher: GSLV Mark III. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, 542–571. New Delhi: Harper Collins Publishers India. Rao, U.R. 2015. Origins of Satellite Technology in India—The Story of Aryabhata. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, 702–719. New Delhi: Harper Collins Publishers India. Rapp, Lucien. 2009. When France Puts its Own Stamp on the Space Law Landscape. Journal of Space Law 35: 313–336. Rapp, Lucien. 2009. When France Puts its Own Stamp on the Space Law Landscape: Comments on Act No. 2008-518 of 3 June 2008 Relative to Space Operations. Air and Space Law Journal 34: 87–103. Reddy, V. Balakista. 2007. Commercialization and Privatization of Space Industry in India: Legal Issues and Challenges. In 2007 Proceedings of the Fiftieth Colloquium on the Law of Outer Space, 542–548. AIAA. Reddy, V. Balakista. 2015. Commercialisation of Space Activity: Need for a Law. In Deccan Herald, April 15. Reddy, V. Balakista. 2016. Commercialisation of Remote Sensing and Geo-Spatial Data: The Emerging Legal Jargons. In Commercialisation and Privatisation of Outer Space—Issues for National Space Legislation, ed. R. Venkata Rao and Kumar Abhijeet, 37–64. New Delhi: KW Publishers. Reynolds, G.H., and R.P. Merges. 1998. Towards an Industrial Policy for Outer Space: Problems and Prospects of the commercial Launch Industry. Jurimetrics—Journal of Law, Science and Technology 29: 7–42.

144

Bibliography

Sachdeva, G.S. 2013. Space Policy and Strategy of India. In Space Strategy in the 21st Century— Theory and Policy, ed. Eligar Sadeh, 303–321. New York: Routledge, Taylor & Francis Group. Sachdeva, G.S. State Responsibility for the Space Activities of Private Actors. In Commercialisation and Privatisation of Outer Space—Issues for National Space Legislation, ed. Kumar Abhijeet and R. Venkata Rao, 79–86. New Delhi: KW Publishers. Sankaran, Ramya, and Nivedita Raju. 2017. A Framework to Address Burgeoning Commercial Complexities in Space Mining. German Journal of Air and Space Law 66 (1): 71–103. Sarabhai, Vikram A. 2015. Significance of Sounding Rocket Range in Kerala. In From Fishing Hamlet to Red Planet, ed. P.V. Manoranjan Rao, 100–114. New Delhi: Harper Collins Publishers India. Schmidt-Tedd, Bernhard. 2013. Article I of the 1975 Convention on Registration of Objects Launched into Outer Space. In Cologne Commentary on Space Law, vol. 2, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 244–248. Cologne: Carl Heymanns. Schmidt-Tedd, Bernhard, and Michael Gerhard. 2005. How to adapt the present regime for registration of space objects to new developments in space law? In 2005 Proceedings of the Forty-Eighth Colloquium on Law of Outer Space, 353–359. AIAA. Schmidt-Tedd, Bernhard, and Michael Gerhard. 2005. Registration of Space Objects: Which are the Advantages for States Resulting from Registration? In Space Law: Current Problems and Perspectives for Future Regulation, ed. Marietta Benkö and Kai-Uwe Schrogl, 122–123. Utrecht: Eleven International Publishing. Schmidt-Tedd, Bernhard, and Stephan Mick. 2009. Article VIII. In Cologne Commentary on Space Law, vol. 1, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 146–168. Cologne: Carl Heymanns. Schmidt-Tedd, Bernhard, Ulrike Bohlmann, Natalya Malysheva, and Olga Stelmakh. 2013. The 1979 Convention on Registration of Objects Launched into Outer Space. In Cologne Commentary on Space Law, vol. 2, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 227–322. Cologne: Carl Heymanns. Schrogl, Kai-Uwe, and Charles Davies. 2002. A New Look at the Concept of the “Launching State”—The Result of the UNCOPUOS Legal Subcommittee Working Group 2000–2002. German Journal of Air and Space Law 51 (3): 359–381. Siddiqui, Asif A. 2016. Science, Geography, and Nation: The Global Creation of Thumba. History & Technology—An International Journal 31: 420–451. Siemon, Noel, and Steven Freeland. 2010. Regulation of Space Activities in Australia. In National Regulation of Space Activities, ed. Ram S. Jakhu, 37–60. Dordrecht: Springer. Smith, Lesley Jane. 2009. Article XII. In Cologne Commentary on Space Law, vol. 1, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 210. Cologne: Carl Heymanns. Smith, Lesley Jane, and Armel Kerrest. 2013. Article I of the 1972 Convention on International Liability for Damage Caused by Space Objects. In Cologne Commentary on Space Law, vol. 2, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 114. Cologne: Carl Heymanns. Smith, Lesley Jane, and Armel Kerrest. 2013. Article II of the 1972 Convention on International Liability for Damage Caused by Space Objects. In Cologne Commentary on Space Law, vol. 2, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 125. Cologne: Carl Heymanns. Smith, Lesley Jane, and Armel Kerrest. 2013. Article III of the 1972 Convention on International Liability for Damage Caused by Space Objects. In Cologne Commentary on Space Law, vol. 2, ed. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, 132. Cologne: Carl Heymanns. Smith, Lesley Jane, and Catherine Doldrina. 2017. Law Relating to Remote Sensing. In Routledge Handbook of Space Law, ed. Ram S. Jakhu and Paul Stephen Dempsey, 241–267. New York: Routledge, Taylor and Francis Group. Spencer Jr., Ronald L. 2010. International Space Law: A Basis for National Regulation. In National Regulation of Space Activities, ed. Ram S. Jakhu, 1–22. Dordrecht: Springer Publication. Su, Jinyuan. 2017. Legality of Unilateral Exploitation of Space Resources Under International Law. In International & Comparative Law Quarterly 66 (4): 991–1008.

Bibliography

145

Suresh, Byrana Nagappa. 2015. The Indian Space Programme. In Handbook of Space Security, vol. 1, ed. Kai-Uwe Schrogl, et al., 921–938. New York: Springer. Tramposch, Albert. 1993. Importance of Intellectual Property Rights for the Protection of Inventions in Relation to Space Activities. In Proceedings of the 1st ECSL/Spanish Centre for Space Law Workshop in Intellectual Property Rights in Outer Space, Madrid, May 26, 1993, 15–24. Trebaol, Jean-Yves. 2005. French Current Practice for the Registration of Space Objects and Unsolved Issues. In Current Issues in the Registration of Space Objects, ed. Hobe, Schmid-Tedd, Schrogl, 87–90. Institute of Air and Space Law. Tremayne-Smith, R. 2011. Environmental Protection and Space Debris Issues in the Context of Authorization. In National Space Legislation in Europe, ed. Frans G. von der Dunk, 179–188. Leiden: Martinus Nijhoff Publishers. Vasant, Gowarikar and B.N. Suresh. 2009. History of Rocketry in India. Acta Astronautica 65: 1515–1519. Viikari, L.E. 2003. The Legal Regime for Moon Resource Utilization and Comparable Solutions Adopted for Deep Seabed Activities. Advances in Space Research 31 (1): 2427–2432. von der Dunk, Frans G. 1995. Two New National Space Laws: Russia and South Africa. In 1995 Proceedings of the Thirty-Eighth Colloquium on the Law of Outer Space, 251–261. AIAA. von der Dunk, Frans G. 2000. Launching from ‘Down Under’ the New Australian Space Activities Act of 1998. In 2000 Proceedings of the Forty-Third Colloquium on the Law of Outer Space, 132–141. AIAA. von der Dunk, Frans G. 2002. Launching Alcantara into the Global Space Economy—The 2001 Brazilian National Space Law. In 2002 Proceedings of the Forty-fifth Colloquium on the Law of Outer Space, 310–320. von der Dunk, Frans G. 2004. Implementing the United Nations Outer Space Treaties—The Case of the Netherlands. In 2004 Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space, 139–145. AIAA. von der Dunk, Frans G. 2005. The Sky is the Limit—But Where Does it End? In 2005 Proceedings of the Forty-Eighth Colloquium on the Law of Outer Space, 84–94. AIAA. von der Dunk, Frans G. 2006. Fundamental Provisions for National Space Laws. In Meeting International Responsibilities and Addressing Domestic Needs. Proceedings of the United Nations, Vienna, 91–99. von der Dunk, Frans G. 2008. Implementing the United Nations Outer Space Treaties—The Case of the Netherlands. In National Space Law, ed. Christian Brünner and Edith Walter, 81–104. Vienna: Böhlau Verlag. von der Dunk, Frans G. 2009. The International Law of Outer Space and Consequences at the National Level for India: Towards an Indian National Space Law? In Indian Yearbook of International Law and Policy, ed. Deepaloke Chatterjee, 135–163. New Delhi: Satyam Law International. von der Dunk, Frans G. 2010. Regulation of Space Activities in the Netherlands—From Hugo Grotiuos to the High Ground of Outer Space. In National Regulation of Space Activities, ed. Ram S. Jakhu, 225–246. Dordrecht: Springer. von der Dunk, Frans G. 2011. The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law. In National Space Legislation in Europe, ed. Frans G. von der Dunk, 3–8. Leiden: Martinus Nijhoff Publishers. von der Dunk, Frans G. 2012. Another Addition To National Space Legislation: The Austrian Outer Space Act, Adopted 6 December 2011. In 2012 Proceedings on the International Institute of Space Law, 643–656. Eleven International Publishing. von der Dunk, Frans G. 2016. The Second African National Law—The Nigerian NASRDA Act and the Draft Regulations on Licensing and Supervision. In 2016 Proceedings of the International Institute of Space Law, 547–559. Eleven International Publishing. von der Dunk, Frans G., and Sergei A. Negoda. 2002. Ukrainian National Space Law from an International Perspective. Space Policy 18: 15–23.

146

Bibliography

Vorwig, Petra A. 2010. Regulation of Private Launch Services in the United States. In National Regulation of Space Activities, ed. Ram S. Jakhu, 405–420. Dordrecht: Springer. von Welck, Stephan F. 1987. India’s Space Policy: A Developing Country in the Space-Club. Space Policy 3 (4): 326–334. Walter, Edith. 2011. The Privatization and Commercialization of Outer Space. In Outer Space in Society, Politics and Law, ed. Christian Brünner and Alexander Soucek, 493–518. Wien: Springer. Williams, Maureen. 2001. The Role of the International Law Association in Development of the Law of Outer Space. In Project 2001—Legal Framework for the Commercial Use of Outer Space, ed. Karl-Heinz Böckstiegel, 37–45. Köln: Carl Heymann Verlag. Wins, Elmar, and Kay-Uwe Hörl. 2001. The Industry’s Views Regarding National Space Legislation. In Project 2001—Legal Framework for the Commercial Use of Outer Space, ed. Karl-Heinz Böckstiegel, 601–604. Köln: Carl Heymann Verlag. Zhao, Yun. 2006. Protection of Intellectual Property Rights in Outer Space in 2006. In Proceedings of the Forty-Ninth Colloquium on the Law of Outer Space, 160–171. AIAA. Zhao, Yun. 2017. Law Related to Intellectual Property and Transfer of Technology. In Routledge Handbook of Space Law, ed. Ram S. Jakhu and Paul Stephen Dempsey, 321–332. New York: Routledge, Taylor and Francis Group.

Other Sources Chandra, Prakash. 2016. Why India Needs a Robust Space Law. Hindustan Times, April 17. Available at http://www.hindustantimes.com/analysis/why-india-needs-a-robust-space-law/ story-156P0TyUvT4kkGipYI15yI.html. Explanatory Memorandum to the Australian Space Activities Bill 1998. Available at http://parlinfo. aph.gov.au (accessed on November 30, 2016). Explanatory notes of ILA Draft Model on National Space Legislation in Report of the International Law Association Seventy-Fifth Conference held in Sofia 2012. Grigorow, Alexander. Introduction in Space Law. Basic Legal Documents, vol. 5, E.VIII.1, 1. Utrecht: Eleven International Publishing. http://pib.nic.in/newsite/PrintRelease.aspx?relid=147347. IISL Directorate of Study on Space Resource Mining. 2016. Does International Space Law Either Permit or Prohibit the Taking of Resources in Outer Space and on Celestial Bodies, and How is This Relevant For National Actors? What is the Context, and What are the Contours and Limits of this Permission or Prohibition? IISL position paper on space resource mining adopted by consensus by the Board of Directors on 20 December 2015. Kak, Subhash. Concepts of Space, Time, and Consciousness in Ancient India. Available at https:// cds.cern.ch/record/381232/files/9903010.pdf. Laxman, Srinivias. 2016. Plan to Privatize PSLV Operation by 2020: ISRO Chief. The Times of India, February 15. Available at https://timesofindia.indiatimes.com/india/Plan-to-largelyprivatize-PSLV-operations-by-2020-Isro-chief/articleshow/50990145.cms. Mayence, Jean-François. 12 Questions and 40 Points to Present the Law on Activities Relating to the Launching, Flight Operations and Guidance of Space Objects. Available at https://www. belspo.be/belspo/space/doc/beLaw/PresentLoi_en.pdf. Murali, Malavika. 2014. Startups in Indian space sector need a legal and regulatory framework. The Economic Times, December 16. Available at https://economictimes.indiatimes.com/news/ science/startups-in-indian-space-sector-need-a-legal-and-regulatory-framework/articleshow/ 45530010.cms.

Bibliography

147

Note Verbale August 24, 1976 the Permanent Mission of Canada to the United Nations addressed to the Secretary General (ST/SG/SER.E/INF.2, 16 November 1976). Available at http://www. unoosa.org/pdf/reports/regdocs/SER_INF_002E.pdf. Privatisation of PSLV. Press Information Bureau, Government of India, Department of Space dated 20 July 2016. Report (Report No. 4 of the year 2012–13) of the Comptroller and Auditor General of India on hybrid satellite digital multimedia broadcasting service agreement with Devas. Report of the Legal Sub-Committee on its fifty-first session, Vienna, 19–30 March 2012, UN Doc. A/AC/105/1003. Report of the Seventy-Fifth Conference, Sofia 2012, ILA, 308. Report of the Seventy-First Conference, Berlin, 2004, ILA, 759. Report of the UNCOPUOS, UN Doc. A/62/20 (June 26, 2007). Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015 or the Space Act of 2015. See https://www.congress.gov/bill/114th-congress/house-bill/2262/text. Sokolski, Henry. 1993. Ending South Africa’s Rocket Program: A Nonproliferation Success, August 31. The Nonproliferation Policy Education Center (NPEC). Available at http://www.npolicy.org. The Yomiuri Shimbun (The Japan News). 2016. Use passage of 2 laws to encourage private sector’s rocket development, November 28. UN Doc.A/AC.105/21, Report of the legal Sub-Committee on the Work of the Second Part of its Third Session 5–23 October, 1964. U.S. Government Orbital Debris Mitigation Standard Practices. Available at https://www. orbitaldebris.jsc.nasa.gov/library/usg_od_standard_practices.pdf.