Centre for Aviation and Space Laws Volume 2 Issue II

Outer Space Treaty and India’s Space Policy: Forging a Path

Aaditya Vikram Sharma*

Keywords: COPUOS – ISRO – Non-Aligned Movement – Peaceful uses – Space experiments

Introduction

On 30 June 2022, the Indian Space Research Organisation (ISRO) launched the expendable medium-lift vehicle PSLV-C53 with three satellites. This was the second dedicated commercial mission of the New Space India Limited (NSIL) and the 55th flight of the ISRO workhorse. The mission was commended as another feather in the cap of the highly successful space agency, which has become globally known for its technical expertise and low cost of launches. 

However, while the nation has made considerable strides in the space sector, it is legislatively lacking with no coherent domestic law to regulate space activities. This needs to be resolved as the Indian space industry has been witnessing the entry of private actors who have finally been allowed to access it. Pertinently, until a domestic law is laid down, the country will remain liable under international law without any clear responsibility or liability of the private actors.

Though the author in this paper points out that India has not drafted a domestic law till today, the emphasis is not on the lack of legislation but rather on the lack of a drive to make one. To that end, the author highlights India’s contributions to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 (Outer Space Treaty or OST). Even though India lacked expertise at that time, it could put excellent notions on the table during the drafting of the treaty, especially when the cold war was at its peak. On a tangent, today, when the Indian space programme has achieved so much, it should strike the hammer and finally create an Indian space activities law.

The Indian Space Sector

The Government of India established ISRO in 1969. It launched its first satellite Aryabhata on 19 April 1975. ISRO has made many achievements since— it has helped detect water on the Moon, launched an orbiter to Mars and is actively planning a manned mission to the Moon. To date, ISRO has made 84 launches out of which only 9 have failed. The space agency has placed 114 Indian and 342 foreign satellites in space. In June 2020, the Indian government created IN-SPACe (Indian National Space Promotion and Authorisation Centre) through which private actors have been allowed to enter the Indian space industry. Further, the New Space India Ltd. (NSIL), the commercial wing of ISRO, has already conducted two missions. However, India lacks domestic space law for the regulation of these actors. Thus, in case of any mishap, international law will only apply.

India and the Outer Space Treaty

When the space race started, there were calls at the UN to regulate this potential arena of warfare. The initiative is usually attributed to the main space powers at the time, which were, the United States and the USSR. Pertinently, contemporary literature ignores the active role played by developing countries such as India in the drafting of the UN conventions covering international space law. In all fairness, the inception of the discussion on peaceful uses of outer space was a request by the USSR on 15 March 1958 and another by the US on 2 September 1958. Inter alia, both asked the UN to include the agenda of peaceful use of outer space. This led to the creation of an 18-member Ad Hoc Committee on the Peaceful Uses of Outer Space on 31 December 1958 through GA Res. 1348 (XIII). This Committee was created as a result of the discussion that had taken place in the thirteenth session of the United Nations General Assembly (UNGA). It should be noted that para 1 of the Resolution states that the General Assembly-

Establishes an ad hoc Committee on the Peaceful Uses of Outer Space composed of the representatives of…India…

In other words, India was one of the nations added as a member of the first-ever Committee of the UN dealing with peaceful cooperation in space. But, interestingly, India abstained when the Resolution establishing the ad hoc committee was being passed. Further, India, alongside the United Arab Republic (UAR) decided not to participate in the work of the Ad Hoc Committee (the UN Committee on the Peaceful Uses of Outer Space). The reason was the composition of the Committee as the USSR, Czechoslovakia and Poland decided not to participate. As she would clarify later, India did not believe that any actual progress could be made on the treaty unless both the space-faring nations were on board. Nevertheless, the Ad Hoc committee came up with a report in 1959.

India’s tryst with space law started with non-cooperation. The Ad Hoc committee met from 6 May 1959 to 25 June 1959 and India did not participate in its work. However, when the Committee gave its report, India joined the nations at the UN in creating a two-part draft resolution. Ambassador C.S. Jha, India’s Permanent Representative to the United Nations, outlined how it was the country’s wish to have both the space-faring nations on board any committee (as mentioned above, USSR did not participate in the Ad Hoc Committee). He gave a highly constructive suggestion by envisaging that the Antarctic Treaty, 1959 could serve as a model treaty for outer space. This idea is still highlighted in contemporary literature and some believe that it might also have been accepted at that time. Ambassador Jha further said-

Nevertheless, whatever might be the immediate objectives or possibilities of the proposed committee, the ultimate objective of any consideration of the problem must be the prohibition of the use of outer space for any military purposes whatsoever and the conclusion of a convention aiming at the solely peaceful utilisation of outer space for the benefit of man.

These words and the Ambassador’s contributions would ring true once the OST was drafted. In any case, in 1959, the draft resolution supported by India was passed with broadly minor changes. This Resolution, that is, UNGA Res. 1472 (XIV) turned the ad hoc committee into a permanent one and increased its membership to 24. India voted in favour of the Resolution. This established the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS).

UNCOPUOS started working immediately and gave reports on the basis of its mandate. Later, on 11 December 1961, India and its partner nations sponsored a resolution for the ‘International cooperation in the peaceful uses of outer space.’ Notably, the Non-Aligned Movement (NAM) had been established by that time. India was a founding member, and her Prime Minister, Jawaharlal Nehru, greatly advocated the unity of newly independent countries in a bipolar world. This led to India treading a neutral path in negotiations related to International Space Law without getting swayed by the US or the USSR. In September 1964, the 2nd Summit of Heads of State or Government of non-aligned movement was held in Cairo, Egypt. Among other things, it reiterated that there is a need of an international treaty prohibiting utilisation of outer space for military purposes. In the same year, India participated in the COPUOS meeting. India’s contributions to the UN legal initiatives can be traced to March 1964, when it insisted on absolute liability from damage caused by space objects and asked for a clarification on the application of the draft Convention. The Indian delegation also put forth the point that outer space should only be used for peaceful purposes and that it was not subject to national appropriation. In May 1964, India chaired the Consultative Group on Potentially Harmful Effects of Space Experiments. The country delegated the task to one of its most prominent scientists, Dr. Vikram Sarabhai. The group focused on the possible undesirable effects of space experiments on scientific activities and observations.

By 1965, India had secured a funding by the United Nations for the operation of the Thumba international equatorial sounding rocket facility. The mandate for the COPUOS was also expanded. In 1966, India along with the NAM countries, demanded exclusively the peaceful utilisation of outer space. The UNGA, through a resolution, adopted the report given by the COPUOS and also reiterated the mandate to continue cooperating with the Thumba facility. Especially of note is the fact that the UNGA also acknowledged the Cairo declaration of 1964 of the non-aligned movement. In 1966, as the OST was finalised, the new Indian Ambassador, G. Parthasarathy, highlighted problems with Article VII of the draft treaty given in the Soviet draft. The Article made States ‘internationally’ liable for any damage done by their space object(s) to another State. Ambassador Parthasarathy proposed that the term ‘internationally’ should be replaced with the ‘absolutely’. Many delegations supported this view. 

Ambassador Parthasarathy also suggested a change to the draft Article IV, that is, the addition of the term “outer space”. Though this was not done, the efforts of India were acknowledged by the Soviet Union. 

India continued to be an active participant in 1966. She, along with Brazil and the United Arab Republic, insisted on education and training programmes with a focus on the Peaceful Uses of Outer Space for developing countries. This request was reiterated by specialised agencies of the UN which suggested a pilot programme should be initiated. Ambassador Parthasarathi stated that his delegation wholeheartedly supported any such imitative dealing with education, training, exchange of information and encouragement of international programmes.

Several of Indian initiatives have received due recognition in the Outer Space Treaty, and thus, stand as the evidence of early Indian efforts in the space law-making.

Conclusion

The world is a much different place than it was 60 years ago. The satellite launches of the 1950s are now recurring events which hardly attract any attention. Instead, fascinating new technologies like Internet satellite constellations and potential interstellar launch vehicles have come up. But, international space law is still frozen in time. On the other hand, ISRO has done a commendable job over the years. However, now, as privatisation has started, it has become even more pertinent to draft domestic legislation dealing with space, especially considering the laxity of international space law. As the research above shows, India is quite capable of drafting and envisaging principles in new technologies and the space sector. Even sixty years ago, when its space programme was still in its infancy, the country had the foresight and expertise to participate in the process of the creation of international space treaties. Further, it participated with vigour and the current treaties carry India’s mark on them. Therefore, as ISRO embarks on its new space venture, it is recommended that a comprehensive space law should be enacted using the experience gained in drafting the international treaties. The drive to do so can be obtained by looking at the nation’s historical achievements.

* The author is pursuing Ph.D. in Space Law at the West Bengal National University of Juridical Sciences, Kolkata

Centre for Aviation and Space Laws Volume 2 Issue II

Recent Efforts on Developing New Norms for Space Security: A Brief Overview 

Kiran Mohan Vazhapully* 

Key Words: Conference on Disarmament – EU CoC – PPWT – Space security – Space weapons 

On 13 May 2022, the first formal meeting of the Open-ended Working Group on reducing space threats (OEWG), established by the UN General Assembly (UNGA) based on a proposal by the United Kingdom, concluded in Geneva. The Working Group inter alia aims “to make recommendations on possible norms, rules and principles of responsible behaviours relating to threats by States to space systems, including, as appropriate, how they would contribute to the negotiation of legally binding instruments, including on the prevention of an arms race in outer space”. Importantly, this meeting opened the issue to most States that have not been active in previous space disarmament deliberations.  

Reportedly, the meeting was collegial despite the long-held differences among major space-faring nations on the form and content of the future norms. This is a welcome departure from the past negotiations at the Conference on Disarmament (CD) in this regard— marred by stark differences of opinions and inflexible positions. When viewed alongside the United States’ recent, self-imposed ban on anti-satellite (ASAT) missile tests and Canada matching this pledge, this constructive development augurs well for space security and sustainability and has the potential to fill in the gaps in existing international law. Significantly, Article IV of the 1967 Outer Space Treaty, by prohibiting the placement of nuclear weapons and other weapons of mass destruction, provides only for partial demilitarisation of outer space. This provision does not cover ASAT weapons and dual-use, co-orbital technologies— both weapons of choice in space for a few nations in the 21st century. 

Differences Persist 

However, as is clear from their submissions to the OEWG, China and Russia continue to promote their idea of a legally binding treaty in intergovernmental fora. In 2008, they jointly submitted to the CD the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT/Draft Treaty) aimed at preventing an arms race in space.  The signatories to the treaty would commit “not to place any weapons in outer space.” The PPWT also stipulates that the parties may not “resort to the threat or use of force against outer space objects” or engage in activities “inconsistent” with the purpose of the Treaty. 

Noticeably, the Draft Treaty omitted ground-based ASAT weapons from its purview, which the United States vehemently criticised. The Draft Treaty was also opposed for its absence of a verification mechanism to ensure compliance. Further, the PPWT also does not ban the development, testing, or stockpiling of weapons on the ground that could be promptly placed on orbit. Instead, it calls for “transparency and confidence-building measures” implemented on a “voluntary basis.” An updated version of the Draft Treaty was submitted in 2014, but these issues stayed on. Consequently, the proposal could not receive sufficient support in the CD. 

European Efforts 

Contrastingly, western nations advocate for “soft law”, initially in the form of Transparency and Confidence Building Measures (TCBMs) for arms control in outer space. Officially released in 2008, the European Union Draft Code of Conduct for Outer Space Activities (CoC) was envisioned as TCBMs that would strengthen existing regulations. This initiative did not favour the developing States, notably BRICS, as they were excluded from the process. It was perceived as an exclusive EU project.  

The sponsors of CoC tried to address this concern in 2014 through a more inclusive approach—by engaging in a broader consultation process and renaming the amended draft “International Code of Conduct for Outer Space Activities”. Even after three rounds of consultations, disagreements on the form and content of the new norms persisted. China and Russia wanted a binding agreement and had already proposed PPWT. Further, there were differences of opinion on the choice of forum for negotiation and process among EU member states and others. The EU member states advocated for an ad hoc process to ensure broader participation, while a few other States argued for an UN-based approach. These differences, along with confusion about the methodology and the way forward, ultimately led to the failure of this initiative. 

Space Security at the UN 

Aside from these State-led initiatives, the UNGA took the lead in establishing a Group of Governmental Experts (UNGGE) on Transparency and Confidence-building Measures (TCBMs) in Outer Space Activities in 2011. As the discussions at the CD had been in limbo for several years, many States saw the UNGGE as a way forward on space security matters. The UNGGE convened in 2012 and 2013 and submitted its final report in 2013. The report outlined conclusions and recommendations on TCBMs to ensure strategic stability in outer space. Its recommendations inter alia included information sharing on national policies and activities in outer space, notifications of risk reduction efforts, and voluntary visits to launch sites. However, implementation of these recommendations has been minimal, and thus, has had limited impact on norm creation on space security. 

Following informal discussions on the practical implementation of these TCBMs in 2017, the UN Disarmament Commission (UNDC), a part of the UNGA, explored ways in which the recommendations of the 2013 UNGGE report could be implemented. However, the progress in this direction has been negligible as the UNDC couldn’t even convene the meetings to carry forward this task.  

Another GGE was convened in 2018 and 2019 to identify issues and options to advance a legally binding instrument. Again, due to lack of consensus on a final report of recommendations, no legally binding instrument emerged out of it. Nevertheless, the work carried out by the Group did highlight points of convergence in several areas, such as the applicability of international law— particularly the applicability of the UN Charter to outer space activities, the freedom of access to outer space without discrimination and on the basis of equality, and the need to avoid hampering the economic or technological development of States. 

Concluding Thoughts 

As mentioned earlier, the UNGA set up the OWEG primarily on the efforts of the United Kingdom. The UK initiated this latest exercise on law-making for space security by sponsoring UNGA Res.75/36 on “reducing space threats through norms, rules and principles of responsible behaviours” in 2020. The resolution prudently chose to stay clear of recommending neither a binding treaty nor “soft law” as the product of these deliberations, thereby opening a new pathway for future engagements in this regard. Herein, the focus was on what constitutes threatening and destabilising space behaviour rather than the nature or type of space weapons. This move was followed up by the UK co-sponsored resolution in 2021 to establish the OWEG, which received wide-ranging support in the UNGA. The OEWG, in its next meeting in September 2022, will focus on current and future threats to space systems. 

It appears that international efforts on space demilitarisation have received a new lifeline. The momentum created by the most recent endeavours gives another opportunity for States to reconcile their differences and disagreements on this critical issue. It is hoped that proactive discussions at the OWEG will contribute positively to reducing threats to civilian activities in outer space, making it less congested, contested, and competitive.  

* Kiran Mohan Vazhapully is Senior Legal Officer at the Secretariat of Asian-African Legal Consultative Organization (AALCO), an intergovernmental organization based in New Delhi. Views are personal. 

References 

PPWT, submitted by China and the Russian Federation, https://www. reachingcriticalwill.org/images/documents/Disarmamentfora/cd/2008/documents/Draft%20PPWT.pdf 

International Code of Conduct for Outer Space Activities – Version 31 March 2014, Draft, available online at https://eeas.europa.eu/topics/disarmament-non-proliferation-and-arms-export-control/14715 

Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, U.N. GAOR, 68th Sess. U.N. Doc A/68/189* (29 July 2013), available online at  

https://www.unoosa.org/oosa/oosadoc/data/documents/2013/a/a68189_0.html

Michael Listner and Rajeswari Pillai Rajagopalan, “The 2014 PPWT: A New Draft but With the Same and Different Problems,” The Space Review, August 11, 2014, https://www.thespacereview.com/article/2575/1 

UN General Assembly, “Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities: Note by the Secretary-General,” A/68/189, July 29, 2013 

2018 UN Disarmament Commission Working Group II, Secretariat nonpaper, n.d., https://www.un.org/disarmament/wp-content/uploads/2018/03/WG2-secretariat-non-paper-outer-space-TCBMs-FINAL.pdf 

UN General Assembly, “Further Practical Measures for the Prevention of an Arms Race in Outer Space,” A/RES/72/250, January 12, 2018 

“UK Push for Landmark UN Resolution to Agree Responsible Behaviour in Space,” UK Foreign Office, August 26, 2020, https://www.gov.uk/government/news/uk-push-for-landmark-un-resolution-to-agree-responsible-behaviour-in-space