THE RATIONALE OF DOMESTIC LEGISLATION FOR SPACE ACTIVITIES

G. S. Sachdeva*

Keywords:      Commercial exploitation – Non-appropriation- Public order – Space industry

Introduction

There is a lobby in India, with an argument that if ISRO could work so successfully, achieving laurels globally and establishing international landmarks for over half a century, then the need for a domestic lex specialis does not exist. If at all, the hard-mould of legislative enactment may interfere with the organisational autonomy, speed of achievement and traction of innovation. This rationale seems comparable to a common American refrain “If it ain’t broke, don’t fix it.”In fact, India has been rather lucky in this regard with fast development of technology and almost liability-free operations, but this logic of empirical success does not hold enough ground, and luck may not smile always.

Therefore, a deeper consideration of this argument reveals its weaknesses. There is an intrinsic fallacy which fails to look at other aspects of industry development, constitutional mandates, taxation calls, delegated international obligations from the Outer Space Treaty (OST) and other germane international instruments. Further, ground realities are changing fast; space activities are changing their character from scientific exploration to commercial exploitation; States are squeezing funds from the exchequer for activities with commercial uses while private enterprise is ready and willing to fill this vacuum.

Hence, the alternative argument prods to enact a domestic space legislation to embody certain essential fundamentals. For example, to embody international obligations incumbent upon State parties to create conformance to its own constitution, in consideration of permeable taxation avenues and to be promotive of its own business culture. These compulsions and considerations provide enough rationale for such a specialised enactment which accords due deference to the mandates of the OST, peculiarities of space technology, the colossal investments in research and development, huge outlays in infra-structure, long gestation period to profit, the specific dynamics of the space business and above all, the continued race to reach the goal-post first.

This suggestion, however, is with a caveat as not to create a multiplicity of laws on the same subject or with a similar object[1] and at the same time not to establish multiple bureaucracies to regulate and govern the same activity. Such a predicament may be the bane of execution and also embarrassing to the judiciary. Nevertheless, conflict of interest in the governing organisation should be avoided. Some of the considerations underlying this hypothesis are discussed in succeeding paragraphs.

Implementation of the Treaties at the State Level

Countries following Common Law System, like India, usually have a system to ratify those treaties that have been signed by the Executive. This is the basic requirement for considering the treaty obligations as binding. This process has been completed for the main four international instruments germane to space activities, while the Moon Agreement, 1979 still awaits initiation of such ratification by India. In addition, the implementation of international obligations at the domestic level in India requires a legislative act of passing a law.

On the other hand, countries that abide by the Roman Law System, like the US, follow the doctrine of General Reception. In their case, treaties that are ratified by them become self-executing treaties, which do not need any subsequent legislation for implementing in the domestic level. Japan also follows similar practice and treaties with due ratification are automatically accepted as integral to domestic law.[2] It needs no additional enactment, legislative debate or approval. Thus, these systems flag the difference in the character of, as also the manner of, State-level implementation of the treaties to give them effect into municipal law. This difference in approach also highlights the necessity for a covering national legislation especially in a State like India.

Duties Delegated by the Outer Space Treaty upon the States

The first and most important reason for a national space legislation is the need to support Outer Space Treaty where it delegates certain aspects of implementation on the State-parties. For example, it requires States to maintain a National Register of space objects launched into the outer space and to inform Secretary General of the United Nations with details of such launches (Article VIII).[3] This would establish ownership over the object and inform of jurisdiction and control over the same. Thus, this becomes a double-edged weapon of its identification and attribution of liability.

The OST also ordains, “State-parties…shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies” undertaken by whichever entity (Article VI). It further mandates that such activities “shall require authorisation and continuing supervision” by the appropriate State (Article VI). Thus, this provision demands a conscious legal cover by the State for authorising such ventures and continuing checks of compliance for ensuring safety.

Further, the OST establishes a liability regime where a State “that launches or procures the launching of an object into outer space, including the Moon and celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party…or to its natural and juridical persons by such object or its component parts on the Earth,  in the air space or in the outer space, including the Moon and other celestial bodies.” (Article VII)[4]. But as liability compensation would be payable from the Consolidate Fund of India, this provision needs admissibility and acceptance according to the Constitution of India.

There are certain other obligations imposed by the OST on the States like non-appropriation of the outer space, including the Moon and celestial bodies, by claims of sovereignty by use or occupation or by any other means (Article II). It is also incumbent on the States to take due regard not to pollute or contaminate the outer space and the celestial bodies or vice versa. Apart from these, there are several soft law resolutions of the UN like Mitigation of Space Debris which command compliance. Thus, these illustrations of State responsibility amply illustrate the need for tiered action at State-level through proper legislation to complement the intent and spirit of the instruments of space law.

Promotion of and Impetus to Space Industry

All nascent industries and business avenues need promotion by the State with incentives and concessions. This action becomes more pertinent to the space industry by virtue of its endemic characteristics and business peculiarities. The space industry requires a huge capital outlay, needs continuous research and development activity, carries a long gestation period to break even the costs, heavy amortisation of single-use systems and high risks of failure and losses. No wonder, such an industry looks to stable and long-term policies, sustained patronage of business, underwriting of liability and other incentives in whatever manner possible and legal. At the same time, penal provisions in the act should be reasonable and not excessively punitive to ensure a conducive atmosphere for investments.

Therefore, business houses undertaking space activities need genuine help and cooperation from the State in taxation and from State agencies relating to the use of infrastructure and facilities. These may have to be assured and promised though an enactment because policy may be short-lived or susceptible to changes and thus, may infuse little confidence, unless the credentials of the government are trust-worthy.

Cooperation for Better Public Order in Space

Commercial space travel has commenced operations and with the increasing frequency of scheduled space-lines, the need for space situational awareness and space traffic management would dominate for safe travel. Space tourism and planetary residencies would be the next step in this advancement. Therefore, discipline in such multi-ethnic and multi-nation groupings would be important to accommodate individual sensitivities and social diversities. All these would make cooperation in outer space and on the celestial bodies an imperative necessity.

From another angle also, outer space and celestial bodies are a province of all mankind for peaceful activities and the OST promises freedom of access to all so desirous. This freedom, however, has a rider of non-interference. Nevertheless, this, so-called, common heritage should equitably release benefits to all States. Besides, the space environment is hazardous and even unsparing in its quality and character. Hence, in eventualities of accident or disaster, help and shelter would be wanting from other operators nearby and this succour should be offered without demur or discrimination. These and many other provisions of the OST exhort for cooperation in the outer space that become binding and reciprocal. This attitude and training must start from the State level with an appropriate law that provides such a mental fix for cooperation in outer space.

In conclusion, these are not the only reasons and compulsions demanding a national space legislation but only illustrative of their genre and character rallying to the same purpose. Ergo, a suitable national space legislation by at least space faring countries would ensure least friction among space users and usher in an era of space cooperation for a flourishing space industry and crime-free peace for space habitations of the future.


*Adjunct Professor, NALSAR University of Law, Hyderabad

[1]For example, the US has more than one space laws that progressively advance towards private appropriation of celestial natural resources.

[2]The Constitutional Law of Japan, Article 98, paragraph 2 guarantees prior application and implementation of ratified treaties in national laws and domestic courts.

[3]Also refer the Convention on Registration of Objects Launched into Outer Space, 1975.

[4]Also refer Convention on International Liability for Damage Caused by Space Objects, 1972.

Initial Thoughts on a Possible Regime for Space Traffic Management

Yun ZHAO*

Keywords:      Registration – Soft law – Space safety – Space traffic management – Sustainability

With the rapid development of space technologies, space tourism and transportation have become a reality and will continue to thrive in the process of space commercialization and privatization. It is obvious to all that the existing space law rules cannot meet the needs of future space transportation. It is time to seriously consider a possible legal regime to deal with space traffic management to ensure the safety of spacecraft in orbit and avoid potential collisions or accidents.

Space traffic management has a broad scope, covering the whole period from pre-launch, operation to re-entry of space objects. Space traffic management is defined by the International Academy of Astronautics (IAA) as “the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference.” According to the Research Report on Space Traffic Management issued by the IAA in 2006, space traffic management, with the aim to maintain space order and protect space safety, includes at least three major areas: data collection and space situational awareness, space notification system, and specific traffic management rules.

Space traffic management is vital to the maintenance of space security and orderly development of space activities. Space safety, stability and sustainability are the cornerstones of all types of space activities. Creating a safe, stable and sustainable space environment is the common interest and responsible of all space-faring nations.

Avoiding collisions in outer space is a means to ensure space safety. Accordingly, space traffic management shall strive to avoid potential space collisions and ensure the safe passage of outer space and return to Earth. With a large number of moving space debris in outer space, there is a need to constantly update real-time data to avoid potential collisions. In addition to space debris, many satellites already in orbit have the potential to collide with other objects. There are normally two steps to prevent satellite collisions: collision risk assessment, and collision avoidance maneuver. Collision risk assessment is to predict the collision probability of an in-orbit space object with other objects. Collision avoidance manoeuvres are to take active actions by menoeuevering an in-orbit space object to avoid collisions. The effectiveness of these two steps relies heavily on the information sharing of the on-orbit positions of space objects in advance through space traffic management, so that all parties can reasonably predict and maneuver.

From the 1990s to the early 2000s, relevant discussions were still limited to the theoretical and conceptual stage. Starting from the 2010s, some concrete steps were taken to put academic discussions into practice. The Draft Code of Conduct for International Space Activities put forward by the European Union in 2014 reflects the initial steps in tackling the issue of space traffic management. During the annual session of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) in April 2015, the delegations of Germany and Luxembourg co-sponsored a new proposal to include a new agenda item on the exchange of views on the concept of space traffic management. The United States (U.S.) issued Space Policy Order No. 3 in 2018 with the aim to establish relevant responsibility and liability systems in the international governance regime for space transportation. Meanwhile, the U.S. Department of Defense issued a document entitled Space Defense Strategy in June 2020, which emphasized the importance of sustainability of U.S. space activities and its leading role in the negotiations for an international governance regime for space transportation. It is to be noted that the concept of space traffic management in the U.S. focuses on how to ensure national safety through the clarification of relevant criteria and requirements for traffic management; and the U.S.’ leading position in the space arena through the promotion of military-civilian integration.

The United Nations (UN) has played an important role in the enactment of space law rules and will continue its efforts in the field of space traffic management. The trend is clear that the UN aims to set up a pragmatic mechanism in coordinating and promoting cooperation among all States to facilitate the consensus-building process in order to reduce space collisions, enhance space sustainability and improve information sharing through space situational awareness mechanisms. In the meantime, the International Civil Aviation Organization (ICAO), as a specialized Agency of the UN, has also started concrete research work at the international level, it would be useful to examine possible measures to be taken in the interim before any legal framework is instituted. It is expected that the work on space traffic management will have a major impact on future development of space law.

The role of soft law rules for space traffic management

Space activities are closely related to national safety and security. However, with more and more states joining the space club, the consensus on a binding legal document becomes increasingly difficult. The whole process has been more complicated with the involvement of private entities. As such, there is a need to look to soft law rules for immediate solutions. In this regard, relevant soft law documents relating to space debris mitigation and space sustainability would help to clarify certain issues involved in space traffic management. Such documents include the UNCOPUOS Space Debris Mitigation Guidelines, the UNCOPUOS Guidelines for the Long-term Sustainability of Outer Space Activities, and the UN Group of Governments Expert (GGE) Report on Transparency and Confidence-building Measures (TCBMs) in Outer Space Activities.

An international regulatory body

It is essential to have an international regulatory body to deal with space traffic management for civil and commercial purposes. This entity would play a role in the coordination and enforcement of relevant traffic rules.  Due account should also be given to issues such as space debris mitigation, space data sharing, and establishment of relevant safety standards. The principle of international cooperation has been emphasized on various occasions for space activities. No single country can effectively manage space traffic alone. Cooperation in space traffic management is of utmost importance to the success of future space tourism and transportation. A neutral cooperative platform through an international regulatory body shall be the ideal way out. The ICAO, in view of its rich experience in civil traffic management, shall be the ideal entity to take up this role. This body shall also work closely with the national entities in the field and coordinate their work at the international level.

Space situational awareness (SSA)

Space situational awareness, involving data exchange and information sharing, is essential for space traffic management. It refers to the recognition of the necessary and predictable space environment and the operational environment on which space activities depend, including the positions and movements of space objects in orbit. Accurate information on the location and surrounding environment of satellites and/or space debris is vital to the safety and security of space activities. SSA could be understood in a broad sense through three mission stages: 1) collecting various data of space objects; 2) analyzing the data to predict the probability of close encounter between two space objects and the risk of re-entry; 3) communicating with stakeholders about potential risks so that necessary actions can be taken.

At the moment, only a handful of States have space situational awareness systems and capabilities; no country can simply rely on its own efforts to achieve accurate cognition of all space objects in the world. Consequently, there is a need for the international community to share SSA data. Since the Outer Space Treaty or other existing binding space treaties do not provide for the duty to disclose and share SSA data, it is necessary to establish an international coordination mechanism for an integrated space situational awareness system, which can provide a reliable and accurate situational judgment source and foundation for space traffic management.

With the ongoing space commercialization and privatization, more and more private entities become the providers of relevant space data. The participation of private entities is undoubtedly conducive to the sharing of space data; however, no clear rules are in place regarding the rights and obligations these private entities enjoy in the process of data sharing. Accordingly, further rules should be clarified regarding the duty of data sharing in space traffic management, the scope, and standards for data sharing.

Very closely related to the SSA, registration of space objects is important in improving transparency in outer space and space activities. An important prerequisite for the successful development of shared space situational awareness is to ensure that the shared data is effectively regulated. The information provided in the registration can serve as the firsthand source for the SSA purpose. The Registration Convention and the UNGA resolution on improving the registration practice offer necessary rules on the registration of space objects. However, when space transportation becomes more frequent, there is a need to explore a separate/or different regime regarding the registration of spacecraft for the purpose of regular commercial transportations.

To conclude, peaceful exploration and use of outer space has always been the unremitting pursuit of mankind. With more and more States attaching importance to and actively participating in the development of space industry, space technologies are having a significant and far-reaching impact on the way of life of human society. At a new historical starting point, space traffic management has entered the public’s field of vision. While realizing that it may bring fundamental contributions to aerospace development, it is necessary to look into possible legal framework to regulate space traffic and improve the global sharing of space situational awareness, so that space technologies can serve and enhance human well-being in a wider, deeper and higher level. This will in turn bring peace and harmony to humankind and betterment of their life.


* Henry Cheng Professor in International Law and Head of the Department of Law, The University of Hong Kong.