8/19/2017 “Space Is The Limit”- Where Does India Stand?

| Live Law

“Space Is The Limit”- Where Does

India Stand?
BY: RICHA KACHHWAHA
JUNE 30, 2017 2:43 PM

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A secure spacefaring nation, an emerging “key player” in Avant-garde space

research & technology, but an absent domestic space law

ISRO’s Meteoric Rise

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(INCOSPAR) with the support of United Nations till
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today, India’s tryst with space research has materialized into many successful missions
India

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in wide-ranging areas including communication, broadcasting, meteorology,

oceanography, surveying natural resources, and monitoring the environment. The Indian
Space Research Organization (ISRO), the space exploration agency of the Government
of India, was formed in 1969. The rst Indian satellite, Aryabhata, was built by the ISRO
and launched with the assistance of the Soviet Union in 1975. It was in 1980 that the
rst satellite (Rohini) was successfully placed in the orbit by SLV-3, an Indian made
launch vehicle.

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

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

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

Signi cance of Space Law

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

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

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

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

ISRO’s self-suf ciency in launching capability of satellites and cost-effective space

programmes is undoubtedly attracting other nations to enter into formal arrangements
with it for support and collaboration. Increase in these commercial activities also calls
for strong domestic law on space as well as related areas. The laws of Contract, Transfer
of Property, Stamp Duty, Registration, Intellectual Property Rights (IPR) are some of the
key statutes which need to be revised for bringing space- related issues within their
ambit. Recently, ISRO outsourced manufacturing of two multi-crore full navigation
satellites to a private sector enterprise for the very rst time. A high-tech defence
equipment supplier from Bangalore has been chosen as the rst private sector industry
tasked with making two satellites. By supporting the private industry to fabricate
satellites, the aim is to create a robust space industry with the private sector
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satellite systems is permitted, there is no legal regime to x liability in the case of

damage.

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

See here ).

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

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amongst them and addresses liability issues in case of damage, is now urgently needed.
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A national space law will act as a catalyst for growth in the space sector and delaying it
any further will only hamper future endeavours of ISRO.

Space Debris and Collisions: Legal and Ecological Risks

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

The growing global concern over space debris and their unintended legal and ecological
consequences hit the home turf recently when India found itself at the center of an
international dispute involving debris from an Indian satellite, which was retracing back
to Earth, falling from the orbit on a Japanese village. In such cases, India’s liability for
damages would be determined by the 1972 Convention on International Liability for
Damage Caused by Space Objects, to which India is a signatory. All the signatory nations
of the Convention are “absolutely liable to pay compensation for damage caused by its
space object on the surface of the Earth or to aircraft in ight.” However, in the absence
of a domestic space law, it becomes dif cult to assess the quantum of damages payable
by India. With access to space becoming affordable, space debris are adding to the
‘space junk’. The question whether the polluting nations will pay for this junk is not clear.
Domestic laws can address the whole gamut of legal issues arising from the ‘objects put
up in space’ as also the ‘space junk’, including assessment and xing responsibility in case
of collusion between space debris with objects put up in outer space. In the words of
ISRO Chairman, Kiran Kumar “Space Act would help the government deal with legal
issues arising from objects put up in space and for what happens to them in orbit, or
because of them.” Not surprisingly, international regulatory bodies like UNCOPUOS are
calling upon member
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Experts on Space Law are of the view that a legislation on space will need to offer some
serious radical changes (Refer Before ISRO can go Onward and Upward, India needs a
good Space Law, by Ashok G.V, Partner, TMT Law Practice). To begin with, the proposed
law should vest the regulatory functions being performed by ISRO (and Department of
Space) in an independent regulatory body. Further, if ISRO has to focus exclusively on
research and innovation, then the burden of day-to-day operations will have to be
shifted to the private sector. The proposed space law should also be able to effectively
oversee satellite -building activities and launch services in India, ensuring that the
country has the requisite competence to discharge liability as a “launching state”. There
are some related issues as well which the law will need to adequately address, viz.
liability for space debris, responsibility for monitoring space activities arising out of
India’s territory or mandate, liability owing to failures during launch of payloads into
space, management of the assets of the space programmes, to name a few.

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

Enactment of an overarching national law on space will send the right message to the
international space community that the country has the necessary vision to back up its
technological capability. It will also answer the question if we are indeed serious about
giving opportunities to entrepreneurs and start-ups who inspired by ISRO’s many
achievements are looking to explore the tremendous opportunities which the realm of
space offers. A dynamic space law has now become imperative irrespective of whether
we choose to allow private industry to emerge in the country’s space domain and
enhance ISRO’s many achievements; or promote Antrix Corporation —ISRO’s
Clinical Legal Will Lawyers and The Right To Health
commercial arm—as the country’s leading launch services provider.
Education – [Part IV] Judges be replaced – Uneasy Silence
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For Clinical Legal Education In Intelligence ( AI )
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Richa has over 10 years of experience in legal writing and editing. She completed her
Masters (LL M) in Commercial Laws from the London School of Economics and
Political Science and is a quali ed Solicitor in England and Wales. Richa started her
career with SNG & Partners, an established pan India banking law rm. She went on
to pursue her keen interest in legal research and writing as the Senior Legal Editor
with LexisNexis India Her subsequent stint as the Consulting Editor of Lex Witness,
India’s rst Magazine on Legal and Corporate Affairs, honed her analytical
understanding of legal subjects. She was also involved with setting up of Live Law. A
mother of two young children, Richa is currently based with her family in
Singapore.  

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