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.
Centre for Aviation and Space Laws 