Centre for Aviation and Space Laws Volume 3 Issue I

Outlining Inconsistencies in the Indian Space Policy 2023

Sandeepa Bhat B.*

Key Words:    Authorisation – IN-SPACe – Liability – Non-appropriation – Space resource

          The Indian government made a new beginning in 2020 with respect to the commercialisation of the space sector in India. The gates were opened for private sector participation in all aspects of space activities by the Government of India (GoI). This is a departure from the earlier scenario of allowing private sector participation only in the manufacturing segment related to space but not in the space services sector. Such a move was found essential for boosting the Indian economy, which was hit hard by the COVID-19 pandemic. Indian National Space Promotion and Authorization Centre (IN-SPACe) was also hurriedly established by GoI in June 2022 for licensing private space activities. This is further followed by the Indian Space Policy 2023 (2023 Policy), which clearly unveils the intention of GoI to extensively commercialise and privatise space activities in India. While the 2023 Policy has been hailed as futuristic and a welcome step during the last couple of days after it has been unveiled, its implementation in the absence of a national space law in India is on shaky grounds. In addition, some provisions of the 2023 Policy also raise suspicion regarding their compatibility with international treaty obligations of India.

Essence of the 2023 Policy

          The key aspect of the 2023 Policy is reflected in its vision statement, which advocates for a flourishing commercial presence in space. In order to achieve this, the 2023 Policy attempts to encourage greater private sector participation in space activities by promising a stable and predictable regulatory framework. IN-SPACe is showcased as a single window for all aspects of authorisation for space activities. The 2023 Policy attempts to provide clearly defined roles for different agencies relating to space activities in India. The Department of Space is entrusted with the overall responsibilities to implement the 2023 Policy, interpret and clarify ambiguities in the 2023 Policy, distribute the responsibilities under the 2023 Policy, coordinate international cooperation, create a suitable space dispute settlement mechanism etc.

The Indian Space Research Organisation (ISRO) has been pushed back to doing its original function of research and development of new technologies and applications. As a futuristic goal, the 2023 Policy requires ISRO to develop technology and infrastructure for human space flight, resource exploitation and human presence in space, including habitation. ISRO’s mandate is not just confined to developing new technologies but also extends to sharing them with both government and private entities. Thus, ISRO’s role is more of a facilitator and the private sector is encouraged to take up the domain of commercial space activities. NewSpace India Limited (NSIL) is mentioned as the primary agency for the commercialisation of space technology and platforms of ISRO. However, the 2023 Policy is silent on the role of Antrix Corporation Limited (Antrix), which was established much before as a commercial wing of ISRO in 1992. It hints, though in unclear terms, the GoI’s attempt to bury Antrix consequent to the disastrous Antrix-Devas saga, and showcase NSIL as the new commercial wing of ISRO.

Legislative Void

          The 2023 Policy is stipulated as a document to promote private sector participation in space activities by different means including providing for regulatory certainty. While some aspects of promoting private space activities are within the domain of the executive, the most significant aspect of providing a legal regulatory framework is within the domain of the legislature. Permitting any private space activity in India should be preceded by legislative backing. Authorisation and continued supervision of space activities are treaty mandated obligations of India. Failure to discharge these obligations attracts the burden of State responsibility under Article VI of the Outer Space Treaty 1967. We can implement the process of authorisation and continued supervision of private space activities in a correct way only by specific adoption, which the legislature is competent to do under Article 253 of the Constitution of India. There is a long list of cases in India wherein executive actions beyond the legislative framework were struck down by the judiciary on the basis of the doctrine of ultra vires. The 2023 Policy carries the risk of flatly falling under this category of cases.

          The establishment of IN-SPACe as a body to authorise private space activities in India and granting all powers to it for framing guidelines and regulations to govern are not based on any sound legal premise. The function of promoting space activities, which is entrusted with IN-SPACe, is within the policy domain of the executive. However, granting authorisation to private players and conferring power to frame guidelines and regulations are the essential functions of the legislature. This is why all other States in the world have passed domestic laws before establishing a body for granting licenses to private players in the space sector. Under the 2023 Policy, even the determination of the most significant aspect of fixation of liability for damage caused due to space activities is left to the guidelines to be formulated by IN-SPACe, which is not permissible. Hence, the 2023 Policy is not providing much needed stable legal regulatory framework for the private sector in the absence of a Parliament enacted law.

Compatibility with International Treaty Obligations?

          In addition to the concerns posed by the absence of a Parliament enacted law, certain provisions of the 2023 Policy are dubious on the aspect of their compatibility with Indian obligations under the United Nations (UN) space treaties. The vision statement of the 2023 Policy reflects only the national economic interest as against the common interest of all. This is a marked departure from our own assertion under Article I of the Outer Space Treaty to carry on the space activities “for the benefit and interest of all countries”

          A much greater concern is found in the form of following the footsteps of the United States in terms of exploiting resources available in outer space. Clause 4, Sub-clause 14 of the 2023 Policy stipulates that the non-governmental entities would be encouraged to “engage in the commercial recovery of an asteroid resource or a space resource.” It goes on to copy Section 51303 of the US Commercial Space Launch Competitiveness Act 2015 for conferring property right over such resources to private entities without any application of mind. The United States approach has been an individualistic approach towards the exploitation of space resources, which has been followed by Luxembourg, the United Arab Emirates and Japan. Such an individualistic approach is against the collective rights approach under the space law, which is strongly rooted in the UN Space treaties.

Apart from an individualistic approach towards resource exploitation, the 2023 Policy also makes a reference to extra-terrestrial habitation. While outlining the functions of ISRO, Clause 6, Sub-clause 7 of the 2023 Policy mandates ISRO to carry forward this dream through research and innovation. This also brings forward the questions relating to land property rights on celestial bodies, which will be unavoidable after having human settlements. However, it needs to be kept in mind that asserting private claims over space resources is not just against the respect for the principle of common benefit and interest but also contrary to the well-established principle of national non-appropriation under Article II of the Outer Space Treaty. The absurd argument that a prohibition on national appropriation does not cover a ban on individual appropriation is the basis for ostensible private property claims over space resources. Allowing or promoting the assertion of private property rights in space will also be a major reason for space resource/land grab and future conflicts. Hence, any aspect relating to property rights in space should be left to international negotiation rather than addressing it under national laws, much less as a part of a policy document.

Incidental Issues

          There are also some other aspects of the 2023 Policy, which need proper attention. First among them is the definition of ‘space object’ provided under the 2023 Policy, which mentions that ‘any constituent element’ of space object is also included. However, if we look into the provisions of the Liability Convention 1972 or the Registration Convention 1975, the definition of space objects stipulates ‘component parts’ and not ‘constituent elements’ of space objects. In addition, the 2023 Policy also mentions that any other object may also be notified as a ‘space object’ from time to time. Thus, there is a lot of confusion surrounding the meaning of ‘space object’, which is not ideal as there are different implications of it under the UN space treaties regarding registration, liability, and recovery and return of space objects.

          In terms of applicability and implementation, Clause 9 of the 2023 Policy stipulates the coverage of space activity “to or from Indian territory or within the jurisdiction of India including the area to the limit of its exclusive economic zone”. This clause is oriented only towards territorial jurisdiction, and thereby, the subject matter and personal jurisdiction aspects covered under the UN space treaties are found missing under the 2023 Policy. Added to this, blanket power is granted to GoI to exempt the application of any provision of the 2023 Policy on a case to case basis. Such a self-conferred unbridled power of the executive is neither on any sound legal basis nor conducive for a healthy development of space sector in India. Hence, we need to rethink on the 2023 Policy to ensure that the respective domains of international space law and the Indian legislature are not usurped by the policy excesses.

* Professor of Law & Director – Centre for Aviation and Space Laws, The WB National University of Juridical Sciences, Sec. III, Salt Lake City, Kolkata.

Centre for Aviation and Space Laws Volume 3 Issue I

SPACE DEBRIS AS AN ENVIRONMENTAL POLLUTANT: CONCEPTUALISING RAMIFICATIONS AND SOLUTIONS PART II

Sanya D. Kishwar* and Shivansh Nangia**

This is a two-part blog. The authors discussed the ramifications of space debris as an environmental pollutant in the first part. The second part discusses international legal framework with recommendations. 

Key Words: Common heritage – IADC – ILA Draft Convention on Space Debris – Nuclear Power Source Principles – Partial Nuclear Test Ban Treaty

Part II: Discussing the Inadequacy of the Existing Legal Framework to Address Space Debris as an Environmental Pollutant

Position of  International Law on Space Debris Pollution

There is a major incoherence in international scholarship regarding what the term ‘Environment’ means. Different disciplines point towards different interpretations, thus lacking a cohesive definition. Various treaties, for examplethe Partial Test Ban Treaty, implicitly suggest a distinction between the natural environment and space. In scholarly writings on the meaning and scope of the term space, space has been seen as separate from the environment, and hence, it is not subject to environmental laws. This is due to a variety of reasons inter alia that space has a very different habitat as compared to that of the Earth. The interaction of humans with space functions very differently from their interactions with the Earth. Hence, the ‘natural environment’ is considered from the ground to the lower atmosphere. Similarly, the law has made a very clear distinction between the natural environment that we live in and outer space owing to political, scientific and reasons of sheer convenience. 

There are a variety of international treaties and principles, as well as organisations working endlessly to protect the environment from the repercussions of outer space activity. The Partial Nuclear Test Ban Treaty of 1963 is a very prominent and successful piece of international law. It essentially prohibits nuclear weapons tests “or any other nuclear explosion” in outer space. In effect, the treaty helps prevent nuclear contamination of the environment. Having been signed by all the countries capable of harnessing nuclear power, the treaty has set up a robust system of international monitoring stations. It, however, falls short in achieving its intended effect as inter alia: 

  1. it only prohibits explosion and not the deployment/carriage/uses of nuclear matter such as propulsion and transportation and;
  2. it does not address the nuclear matter already present in space and applies only to ones being launched after the treaty was signed. 

The Liability Convention, as discussed in Part I, is responsible for assigning liability to a party for the repercussions of its actions related to the use of outer space. Article XXI of the Liability Convention is important when it comes to State assistance in events of damage caused by a space object, where such damage poses a large-scale danger to human life or interferes seriously with the living conditions of the population or interferes with the functioning of vital centres. However, it is important to note that  the Convention does not fix any liability on the State; the State assistance being reduced to a non-mandatory clause. The Convention also does not address environmental degradation and related effects in the strict sense as a large-scale danger to human life is a relative phrase, which may be subject to varied interpretations. Another inadequacy of the Convention is that it only mentions damage caused by “space objects”, which might end up eliminating many types of debris from its ambit.

The Principles Relevant to the Use of Nuclear Power Sources in Outer Space (Nuclear Power Source Principles) is a set of principles adopted by the UN General assembly in 1993, which reflect the common practices for the use of nuclear power sources in outer space. It calls for various design, regulatory, and safety mechanisms and recommends for their adoption to protect individuals, populations, and the biosphere against radiological hazards. However, Principle 3.1.a of the Nuclear Power Source Principles clarifies that they are just a set of recommendatory principles that may be followed and have no binding value. 

Some organisations have also attempted to draft principles which directly or indirectly deal with space debris management. Importantly, the International Law Association (ILA) formed the ILA Draft Convention on Space Debris, which was adopted in 1994. It sets out to bridge the deficiencies of the Liability Convention. It applies to “space debris which causes or is likely to cause direct or indirect, instant or delayed damage to the environment, or to persons or objects”. This Draft Convention adopts a broader understanding of the damage to include indirect damage, unlike the Liability Convention, which only identifies direct damage. National space organisations, like the Federal Aviation Administration, British National Space Centre and Italian Space Agency, are working endlessly to create pragmatic yet effective methods to prevent debris mitigation and management. This is done through their assessment and licensing standards which incorporate quantitative and qualitative analysis. They aim at formulating guidelines for testing the amount of combustible material on board and identifying particular facets of an asset, as well as the launch processes and other stages that have the potential for generating debris. For instance, Inter-Agency Space Debris Coordination Committee(IADC) focuses on codifying principles of space debris mitigation that are binding on all IADC member agencies such as NASA, ESA, ISRO etc. The IADC is essentially very effective in its approach, even though it is not binding since it is just an intergovernmental forum. Still, due to its close-knit functioning, the member States’ organisations do end up following it. Making such principles binding would further empower such bodiesto impose sanctions for non-compliance.

Thus, two major gaps exist in the existing legal framework to address space debris pollution. First, there is a lack of a uniform definition of the environment, which makes it difficult for many international environmental law principles to apply to outer space. Second, the lack of a dedicated and binding instrument recognising space debris as an environmental pollutant and fixing State liability makes it difficult to assign debris cleaning duties to the pollutant State.

The Way Forward

The Inmarsat Space Sustainability Report 2022 identifies a need for more technical strategies and regulatory mechanisms to clean the LEO of stray satellites and the debris they create. Need for more accurate data on space contaminants is very essential for taking any measure. The inaccuracy of data is primarily due to the absence of internationally agreed-upon standards to define and characterise space contaminants. It is of utmost importance to start with regulating space exploitation with an attempt to mandate orbit cleansing obligations on the launching State. Launching States should be held responsible for the non-returning satellites, requiring them to record reasons for such orbit defiance. Additionally, the launching States should be obliged to take steps in locating the stray satellite, confining them, and ensuring their return or safe disposal without creating debris, either in space or upon its entry into the upper atmosphere. International treaties should restrict deliberate and unplanned destructions of defunct satellites by States. State liability in such cases should be the same as that provided for environmental pollution with the knowledge of the polluting State. Additionally, setting an upper limit on the number of satellites that a country could launch in a year would check and balance monopolisation attempts by government and private satellite operators. It is very crucial to monitor the commercialisation of space operations. A communal exploratory system will help reduce the number of unnecessary trips and would help minimise space debris creation and the probability of damage by the debris. 

It is very important for States to agree upon a clear and unambiguous definition of ‘environment’. It is suggested that States may include LEO within the definition of environment and regulate space debris pollution within LEO as environmental pollution. This will encourage the application of customary principles of international environmental law and ensure stricter State liability. There is also a need for recognising outer space as a common heritage of mankind and an extended application of the “common heritage” principle to regulate outer space pollution. Overall, the theoretical and legal frameworks need to be revised in order to reduce the impact of space debris in the LEO, outer space and the Earth’s surface. 

Conclusion 

It is pertinent for countries to realise that there is a valid concern for the long-term usability and sustainability of Earth’s orbits, the Lower Earth Orbit being at the highest risk. The environment cannot be understood as exclusive of space, thus, making it pivotal for the exploration and exploitation of space to be regulated. Space sustainability is a goal that should be rendered important just as environmental sustainability sincespace pollution is capable of catalysing climate change and inducing health hazards for the existing and future generations.

* Lecturer, Jindal Global Law School, O. P. Jindal Global University, Sonipat (India).

** Student, LL.B. (Hons.), Jindal Global Law School, O. P. Jindal Global University, Sonipat (India).

Centre for Aviation and Space Laws Volume 3 Issue I

SPACE DEBRIS AS AN ENVIRONMENTAL POLLUTANT: CONCEPTUALISING RAMIFICATIONS AND SOLUTIONS PART I

Sanya D. Kishwar* and Shivansh Nangia**

This is a two-part blog. The authors discuss the ramifications of space debris as an environmental pollutant in the first part. The second part discusses the international legal framework with recommendations. 

Key Words: Cosmos 2251 – Iridium 33 – Liability Convention – Space station – Stray satellites 

Part I: Ramifications of Space Debris as an Environmental Pollutant

Introduction 

From the failed launch of the Thor-Ablestar that got dismantled over Cuba and ended up butchering the famous cow “Ruhina” to the relatively recent crash of a Chinese March 3B rocket Booster which crashed into a village, spreading toxic fumes and destroying homes, accidents caused by falling space debris are in abundance. These unfortunate events are not rare occurrences. In May 2020, debris from a Chinese Rocket’s failed re-entry fell into villages on the Ivory Coast. More recently, in July 2022, debris crashed into the Indian Ocean. Though the exact repercussions of the crash are yet to be quantified, subsequent pieces of said debris were found dangerously close to villages in Borneo. With over 630 explosions, collisions, and other unplanned events since 1957, more than 100 million objects have been categorised as space debris that can cause serious unforeseen damage.

The UN Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space has set the first internationally accepted definition of space debris as “all man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional”. Johnson argues that the definition also encompasses leaking fuel and coolant droplets since they can be extremely dangerous at such high speeds. We face a plethora of legal and social problems when it comes to space debris management. The lack of a universally agreed upon definition of environmental pollutant makes it difficult to classify which forms of space debris could be classified as a pollutant. The fact that we have not yet formed cohesive jurisprudence on debris management adds to the problem. As of now, a majority of the debris management task is left upon the Earth’s atmosphere, which naturally pulls orbiting debris downward and incinerates it into the thicker lower atmosphere. However, increasing carbon dioxide levels are lowering the density of the upper atmosphere, which may diminish this effect, creating an increased need for human intervention in space debris management.

Ramifications of Space Debris on the environment 

With an increasing quest for scientific breakthroughs, nations across the globe are constantly competing. Space research is one such area that attracts both developed and developing countries. Unlike earlier times, space research is being commercialised, and according to the Global Risks Report published in 2022, this has created crowding and competition in space. For comparison, one could understand the Low Earth Orbit (‘LEO’) as a market space and the satellites (communication, expeditionary or otherwise) as the product choices available for consumer consumption. Here, consumer consumption could be equated with the benefits satellites provide, such as communication, television and broadcasting, and weather prediction. The more satellites a country launches, its control over the space market grows stronger. With an increasing number of developing countries launching satellites successfully, developed countries have also resorted to competitive multi-satellite launches. With more than one satellite being launched at one time, the LEO is now heavily crowded. Many of these satellites fail to return to the Earth’s surface and stray in the LEO or the orbit and enter the non-LEO zones. In both cases, satellites are contaminants in space. The United States Space Surveillance Network has tracked more than 15,000 pieces of space debris measuring larger than 10 cm and 20,00,000 pieces measuring between 1 and 10 cm. As of 2021, they estimate a potential presence of a million debris pieces lesser than 1 cm in size. The Department of Defence’s Space Surveillance Network has tracked 27,000 particles of “spacejunk” till 2022. 

A 1 cm object can penetrate the pressurised crew module of a space station, kill the crew and cause the station to break up, pierce the window of a craft, and disable or destroy a satellite. In contrast, 0.5 mm fragment can puncture a suit and kill an astronaut. Given the threats such space debris particles pose, it is important to determine the scope and extent of the launching state’s liability. This is particularly important when such objects contribute to pollution in both space and Earth’s atmosphere. For instance, when the Russian navigation satellite Cosmos1934 collided with debris from another Russian rocket body, both objects belonged to the same state. The impact of the collision was such that it created thousands of new debris pieces in space. These debris pieces pose a potential collision threat to future objects launched by Russia as well as other countries. In this case, since the satellite that was destroyed and the object that caused its destruction belonged to the same country, the question of liability and compensation was in the backseat. In 2009, a US-owned satellite Iridium-33 collided with a defunct Russian military satellite, Cosmos 2251. This collision resulted in hundreds of pieces of larger, traceable debris and is considered the worst satellite breakup, the effects of which continue to be felt. Situations like this demand determination of liability of the launching state for harm sustained by space objects of other states. Internationally, this is governed by the Convention on International Liability for Damage Caused by Space Objects 1971 (Liability Convention). 

Article II of the Liability Convention recognises an absolute liability of the launching state to pay compensation for the “damage caused by its space object on the surface of the earth or to aircraft flight.” However, the Convention is silent on the liability of the launching state when it’s space object damage another natural space object, with resultant debris particles causing potential threats in both outer space and Earth’s atmosphere. The authors suggest that besides requiring one state to compensate the other, there should also be a determination of state responsibility and consequential liability for creating pollution. Closely investigating the reasons for such collisions would be helpful in concluding the proportion of each state’s contribution and resultant liability to clean up such pollution.  

Article III of the Liability Convention stipulates liability determination on the basis of fault when the damage is caused by space object of one launching state to a space object of another launching State elsewhere than on the surface of the Earth or, to persons or property on board such a space object. However, it is important to note that the Convention does not clarify whether space debris pollution would be considered a fault in space for the purpose of liability determination. Moreover, the liability for damage is confined to space objects and person or property of other States. The consequential damage to outer space environment due to collision of space objects is not addressed under this provision.

In the absence of liability for abandoning the satellites after they become defunct, the number of stray satellites is increasing. This leads to an increased risk of their collision with active satellites, other stray satellites as well as natural space objects. Such collisions contribute not only to pollution in terms of emissions but also in terms of light pollution. Intense light is emitted by such collisions that would not have happened but for the stray satellites. This causes hindrances for scientists who are observing space from the Earth. 

Besides being a space contaminant, a stray satellite also acts as a creator of more such contaminants. Stray satellites without any way to steer onto a steadier orbital path have an increased chance of careening into other orbiting objects, be it another satellite or a piece of debris. This catalyses the cycle of debris generation. Furthermore, the remains of such objects, after a collision, might get accumulated in the lower space sphere, with the possibility of their escape into the upper atmosphere, resulting in reduced capacity of the upper atmosphere to absorb the harmful solar radiations. From a commercial perspective, such continued competitive launching by countries would result in a potential monopoly on the LEO, which would severely hamper the continuation of scientific research for the sole purpose of benefit of humankind. 

In summary, even though space debris has not been recognized as an environmental pollutant, its interaction with other objects could potentially lead to pollution in outer space as well as on the Earth surface. Therefore, it is important to have a legal regulation in place in this regard. In the next part, the authors will critically analyses the existing legal frameworks on outer space while presenting recommendations to reduce the impact of space debris pollution.

* Lecturer, Jindal Global Law School, O. P. Jindal Global University, Sonipat, India.

** Student, LL.B. (Hons.), Jindal Global Law School, O. P. Jindal Global University, Sonipat, India.

Centre for Aviation and Space Laws Volume 3 Issue I

SPY BALLOON AND INTERNATIONAL LAW: HAS BOTH CHINA AND U.S. VIOLATED INTERNATIONAL LAW?

Dr. Atul Alexander*

Keywords:   ARSIWA – Chicago Convention – Countermeasure – Force Majeure – UN Charter

Recently the United States (U.S) shot down the Chinese High Altitude Balloon (HAB) in the sovereign airspace of the U.S. According to the U.S. Secretary of Defense Llyod Austin, the HAB was deployed to carry out surveillance activities in the continental U.S. The incident forced the Secretary of State Anthony Blinken to comment how China had breached the fundamental principles of international law and also postponed his diplomatic visit to China. 

In the aftermath of the incident, several scholars argued how China violated international law; this post explores how both U.S and China breached international law obligations. The Chinese claim that the balloon was used for civilian purposes for undertaking scientific research. Moreover, it contended that it could not prevent the balloon from drifting because the westerly wind movement influenced the balloon’s scheduled route. As China puts it, the infringement was a case of force majeure. It is without a doubt that the incursion of the balloon tested the boundaries of international law. 

Force Majeure Exception

The initial Chinese statement claims that as the balloon was in distress, it was entitled to enter the U.S. sovereign airspace. Since the balloon was used for civilian purpose (as per Chinese reports) it does not enjoy sovereign immunity.  In terms of distress, Art. 23(1) of Articles on Responsibility of States for Internationally Wrongful Acts states (ARSIWA) states in substance that- the wrongfulness of the act committed by a State is precluded, if the act is due to force majeure, that is, the occurrence was because of irresistible force or unforeseen event, which is beyond the control of the State. This is a scenario wherein the State is compelled to act in a way inconsistent with the international law obligation incumbent upon it. To invoke force majeure, there are three fundamental requirements; (a) the act must be brought because of the irresistible force of nature, (b) it has to be beyond the control of the State, and (c) it becomes materially impossible in the circumstances to perform the obligation. Assuming that the balloon drifted because of the westerly winds, it certainly fits into the first requirement. It can be said that the movement of the balloon is beyond the control of the Chinese authorities, and hence, it became materially impossible for China to fulfil the international law obligation. 

The U.S. could assert that China was in breach of the principles under the general international lawand the Convention on International Civil Aviation 1944 (Chicago Convention). State practice reveals that force majeure applies in situations of actual impossibility and not difficulty of performance plea. The International Law Commission (ILC) commentary provided examples of distress to include cases of aircraft entering the airspace of other states because of loss of control or weather. The exception to the said rule is when the State invoking the exception has actively contributed to the material impossibility and thereby accepted the risk of the occurrence of force majeure. As Michel Bourbonniere and Louis Haeck point out, “The overflight of sovereign territory by a state aircraft can be justified by reasons of distress or force majeure as an exception to the principle [that state aircraft cannot flyover the territory of another State…without authorisation.” However, according to Article 8of the Chicago Convention, pilotless aircraft are required to get special authorisation from the contracting State over which the aircraft is flown, this is also espoused by the U.S. statute wherein the federal government maintains exclusive sovereignty over U.S. airspace, and foreign aircraft require permission to navigate.

One of the annexing agreements under the Chicago Convention is the International Air Services Transit Agreement, the agreement provides for multilateral exchanges with regard to the first two freedoms of the air with regard to schedule air services. The Convention and the annexing agreement meant that each State recognized the other’s right to fly through national air space. Although China has denounced the agreement on 11 December 1946, through its note of 3 June  1997, the Chinese Ambassador, stated that the agreement ‘applies to Hong Kong at present, will continue to apply to the Hong Kong Special Administrative Region with effect from July 1997.’ Also, by the note dated 8 December 1999, it applied to the Macau region. Moreover, the freedoms mentioned in the Transit Agreement are with respect to scheduled air services. Accordingly, the applicability of rights under the Transit Agreement in this case becomes questionable.

The Legality of United States Actions

As per Article 1 of the Chicago Convention, every State has complete and exclusive sovereignty over airspace above its territory. Annex VII of the said convention defines an aircraft as “any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.” The definition under the Chicago Convention’s Annex VII includes object lighter or heavier than air and powered or unpowered balloons. Further, paragraph 2.2 of Appendix 5(Annex II) of the Chicago Convention states how an unmanned free balloon used exclusively for meteorological purposes shall not be operated across the territory of another State without appropriate authorisation. Further, paragraph 2.3 provides that authorisation is to be taken prior to launching the balloon if there is a reasonable expectation…that the balloon may drift over the airspace of another State. It is evident from the existing fact that China didn’t get prior authorisation from the U.S.

After the downing of the KAL 007 on 1 September 1983, members of the ICAO assembly adopted Art 3 bis to the Chicago Convention, wherein, if there are reasonable grounds to conclude that an aircraft is being used for any purpose inconsistent with the purpose of the Convention, instructions are to be given to the aircraft to end the violation. In doing so, a State may resort to appropriate means according to relevant rules of international law. In essence, Article 3 bis precludes States from using weapons against intruding aircraft. It is widely agreed that Art 3 bis is a codification of customary international law. Also, the point to be noted is that Art. 3 bis does not intend to modify the rights and obligations of the State under the UN Charter. Therefore, the U.S could attempt to make a valid justification for the use of force under Art. 51 of the UN Charter.

Article 51 permits States to use force for self-defence in case of an armed attack against it.  In the Oil Platforms Case (2003) between Iran and U.S, the International Court of Justice (ICJ) articulated the jurisprudence on ‘armed attack’; accordingly,  it expressed, in exercise of the right of individual self-defence, States have to prove that attack against it is of such a nature to be qualified as an ‘armed attack’ within the meaning of Art. 51. Literal reading of Art. 51 would indicate that an armed attack has to be essentially kinetic in nature. Hence, self-defence taken devoid of a previous act of an armed attack (in a kinetic sense) is untenable. 

Further, to trigger Article. 51, the requirement of proportionality, necessity and immediacy are to be fulfilled. Even if the Chinese Balloon entered U.S. airspace, it did not use force, a prerequisite to trigger Article 51 and to press into application the proportionality and necessity threshold. The ICJ has shed light on the nature of self-defence in the NicaraguaCase (1986); in para 74, the ICJ observed, ‘whether the response to the [armed] attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence’. 

The other reasoning which the U.S may place is anticipatory self-defence, which came into the limelight after the famous Caroline Incident (1837). If the U.S asserts anticipatory self-defence, the defence is shaky because as per Pentagon’s admission, the HAB was “traveling at an altitude well above commercial air traffic and [did] not present a military or physical threat to people on the ground.” If the U.S claims are unjustifiable, this may amount to a blatant breach of a jus cogens norm of prohibition of the use of force; wherein the U.S could incur state responsibility under international law.  At most, this incident could be a case of espionage at par with States deploying submarines conducting spying in the territorial waters. As I have argued previously, espionage per se doesn’t violate international law obligations. In a diplomatic sense, it is implied that States spy on one other. The absence of legal justification under international law can characterise the U.S action as a countermeasure. Countermeasures are justified under certain circumstances, if carried out to make other States cease the violation of international law. However, for invoking countermeasures, there are a plethora of strict requirements like a prior internationally wrongful act of the responsible State against the injured State, notification and offer to negotiate with the responsible State etc. Therefore, the purpose of countermeasure is restoration and not retributive. But the U.S. is yet to make any unambiguous statement on countermeasure. 

* Assistant Professor, The West Bengal National University of Juridical Sciences (WBNUJS). The author would like to thank Prof. (Dr.) Sandeepa Bhat B. for his valuable comments.

Centre for Aviation and Space Laws Volume 2 Issue II

PRIVATE SPACE COMPANIES AND INSOLVENCY: UNRAVELLING THE LEGAL QUAGMIRE

Ishita Das*

Keywords:   Bankruptcy Code – Outer Space Treaty – Protocol for Space Assets – Resources – UNCITRAL Model Law

Introduction

The rapid proliferation of private space companies presents unique challenges as regards insolvency and bankruptcy. The terms ‘insolvency’ and ‘bankruptcy’ have different meanings, wherein the former refers to a financial concept while the latter refers to a legal process. However, the author uses these two terms interchangeably inthis piece. The nature of activities undertaken by commercial entities is becoming multi-faceted. With technological developments, the number of such players would only compound, thereby increasing the risk appetite, and in turn, propagating multiple insolvency scenarios wherein a clear regulatory framework would be critical. Many regard outer space as the domain owned by the big space-faring nations and billionaires. The high entry costs prohibit the other smaller players from having a piece of the outer space pie.

However, rather surprisingly large number of commercial entities could either be a boon or a bane. If these entities manage to keep their financials in place, they could contribute immensely to the growth of the outer space sector. However, if their financial outlook is bleak, it could prevent other smaller players from entering the space market. Two recent cases involving Masten Space Systems and OneWeb, demonstrate the challenges faced by commercial entities vis-à-vis this sector. Both companies had filed for bankruptcy under Chapter 11 of the United States [“U.S.”] Bankruptcy Code. This piece intends to provide a brief insight into the interface between the outer space sector and the bankruptcy framework at the international level.

The Commercialisation of Outer Space and Insolvency

One of the five commercial entities, Masten Space Systems, that was awarded the contract by the National Aeronautics and Space Administration [“NASA”] under the Commercial Lunar Payload Services Program [“CLPS”] has recently filed for bankruptcy. The company’s staff strength was cut short, and several employees working on the XL-1project were laid off. However, the financial position did not improve despite such financial arrangements, finally leading the company to declare bankruptcy. According to the company, the assets of the company were to the tune of USD 10 to 50 million and were roughly matched by the liabilities. The filing was before the U.S. Bankruptcy Court for the District of Delaware. Some of its major creditors include SpaceX: the largest creditor, Psionic, Astrobiotic, NuSpace, and Frontier Aerospace.

The federal bankruptcy court in Delaware approved the sale of the company’s assets to Astrobiotic in an auction wherein the bidder offered a price of USD 4.5 million for ‘substantially all’ of Masten’s assets. After the Chapter 11 reorganisation concludes, NASA would be in a position to determine whether the company would be able to discharge the terms of the CLPS contract. The second case concerning OneWeb, a big broadband satellite constellation company that recently underwent a restructuring process,is a perfect example of successful restructuring as regards commercial entities in this sector. The restructuring process vested a 42.2 percent stake in the company’s assets with Bharti Global and the UK Government each. The UK Government underscored its ambition to put the country on the global map as regards space technologies after this restructuring.

It is important to note that companies such as Masten rose from the bottom and achieved extraordinary feats as a start-up, with only a handful of individuals leading a small team of talented and hardworking aerospace engineers. Therefore, when external circumstances such as the Covid-19 pandemic forced Masten to file for bankruptcy, it was a sad day for dreamers of private space ventures. These cases exhibit the inherentfinancial risks associated with start-ups in the outer space sector. Therefore, a proper financial cushion to mitigate the risks could be key to dealing with such challenging situations in the future. For instance, if the start-ups are adequately backed by the governmental agencies and the public-private partnership [“PPP”] model is adopted, the government and the company could benefit from such an arrangement.

The government can potentially gain from the expertise and agility of the company, while the commercial entity can rely upon the government’s support during financial distress. The allocation of risk between the public and the private entity is well-defined as regards the PPP model, and the latter is subject to strict financial reporting standards that would inevitably create a more financially-sound ecosystem for such ventures.

The Relevant International Legal Instruments

The Outer Space Treaty lays down general principles regarding the concept of ownership wherein the launching state, or the private entities associated with the state, are vested with the ownership of the space assets. Article VI makes it amply clear that the launching state would be responsible for the activities of both governmental and non-governmental entities in outer space. Article II specifies that outer space, including the Moon and other celestial bodies, is not subject to ‘national appropriation’ by any state. Therefore, while the ownership rights vis-à-vis the states are quite clear, the same cannot be inferred regarding private companies. As more companies penetrate the outer space sector, the chances of space mining increase manifold, leading to possible tense situations in relation to insolvency proceedings.

The lack of a clear insolvency framework concerning the outer space sector could be deeply problematic as the insolvency practitioners would not be adequately equipped to distribute the mined assets of the insolvent company among the group of creditors. This situation could get more complex if multiple countries seek to lay claim to the assets of the company. In this context, the UNCITRAL Model Law on Cross-border Insolvency provides procedural certainty and a multi-state cooperation mechanism as regards cross-border insolvency proceedings. The provisions of the Model Law are wide enough to be construed in light of the novel developments taking place in the outer space sector. However, given that with the passage of time more space-faring nations would enact domestic laws concerning commercial activities in outer space, including the Moon and other celestial bodies, akin to the U.S. and Luxembourg, the cross-border regime envisaged under the Model Law has to be visualised within the domestic instruments.

Article 25 of the UNCITRAL Model Law stipulates that the court of the host state and the foreign courts or representatives shall cooperate either directly or through an officially appointed liquidator or an administrator. The host court can communicate directly and request information or assistance from the concerned foreign courts or representatives. Article 26 of the Model Law provides that the officially appointed liquidator or administrator shall ‘cooperate to the maximum extent possible with the foreign courts or representatives. Such a person or entity shall operate under the guidance and supervision of the court while discharging the functions under the law. The forms of cooperation have been identified under Article 27 of the Model Law, wherein the role of the arbitrator or mediator could be instrumental in resolving any dispute regarding insolvency proceedings in the outer space sector.

Another international instrument that could be extremely useful is the Cape Town Convention’s Protocol for Space Assets, 2012, which lays down a specialised procedure for dealing with insolvencies concerning space assets. Article XXI of the Protocol provides for the remedies for insolvency wherein, as per Alternative A, the creditors may seek repossession or control over the spacecraft upon the end of the waiting period. This provision, coupled with an enhanced understanding of the distribution of mined assets, could pave the path for the insolvency-related troubles of companies in the outer space sector.

Conclusion

It is worth noting that the financial challenges associated with start-ups in the outer space sector could be steep. However, there are strategies through which they could be addressed effectively, especially through restructuring wherein the acquiring company values the vision and goals of the company acquired. The future of the sector could rest upon how public-private partnerships across multiple jurisdictions can support commercial ventures that may face stormy waters. Even though the damaged ship,akin to the ship of Theseus, might be torn into pieces and distributed among different takers, the spirit of the ship or its legacy could be continued by the new stakeholders.

The future of the outer space sector and the participation of private entities would rely upon how well the financial risks are mitigated, and existential challenges are surmounted. The current international instruments, such as the UNCITRAL Model Law and the Cape Town Convention’s Space Assets Protocol, if incorporated effectively within the domestic laws, could create a stable regulatory system for the outer space participants. While there is much to learn from a study of the OneWeb and Masten insolvencies, the sector needs to be more prepared to deal with future bankruptcies so that the new challenges that may arise, for instance, the distribution of mined resources among the creditors situated in multiple jurisdictions, are addressed in tandem with the core goals of the Outer Space Treaty.

* The author is an Assistant Professor (Law) at NALSAR University of Law, Hyderabad. She can be contacted at ishita.das@nalsar.ac.in.

Centre for Aviation and Space Laws Volume 2 Issue II

IS THE OUTER SPACE AN OUTLET FOR TAX EVASION?

Twesha Karnani*

Keywords: National Appropriation – Outer Space Treaty – Residential Status – Sovereignty

Introduction

Private space exploration is becoming common, and opportunities for extraterrestrial operations have grown considerably. A glimpse of the issues arising from taxing outer space activities is seen in taxing the activities conducted in digital space. The space sector generates an income of $350 billion and it is expected to jump to $1 trillion by 2040. It is important to tax those involved in this sector especially if such activities are for personal benefit and not for the advancement of mankind and science. On this issue, US Congressman Earl Blumenauer had planned to introduce the Securing Protections Against Carbon Emissions (SPACE) Tax Act. He believes that “space exploration isn’t a tax-free holiday for the wealthy. Just as normal Americans pay taxes when they buy airline tickets, billionaires who fly into space to produce nothing of scientific value should do the same, and then some”.

Typically, the levy of tax has been based on the place of residence of the individual, a company’s place of operation or where a property is situated. However, when it is difficult to prove an individual’s or entity’s existence physically, assessing taxes becomes challenging. Even though, while assessing taxes in such scenarios, the basic principles of taxation law must be kept in mind, the present regime might be insufficient to provide for the rapid growth that is taking place in this sector. 

The levy of tax in the space sector can be on a variety of operations such as services of satellites, astronauts staying aboard the International Space Station (ISS) and space tourism. It has been opined that future legislation in this area must be based on the laws that govern the high seas.

This write-up discusses how the levy of taxes on the services provided by satellites, the income of astronauts or other outer space activities pose to be an issue. Furthermore, a prospective suitable tax regime is also briefly discussed. 

The issue with levying tax on satellite services

The most notable instance of space technology that causes problems for tax officials is the usage of satellites. It is challenging to establish a proper way of taxing because of the ambiguous character of such services. The primary issue with satellites is that since they orbit the Earth, they will be over more than one country while providing their services to a third country. The “footprint” of the satellite cannot be considered the place of business of the satellite operator. From the point of view of direct tax, the residential status of the satellite operator is a critical component and not the satellite’s actual location.

Article II of the Outer Space Treaty states that outer space “is not subject to national appropriation by claim of sovereignty”. This doctrine of non-appropriation places restrictions on those who want to profit from space activities. Since States cannot claim sovereignty over outer space, the question which arises is whether imposing and collecting taxes could possibly violate the non-appropriation doctrine as taxes are based on the sovereign territorial rights of the States. This is something which needs to be determined in order to decide whether outer space activities could be taxed. 

In Communications Satellite Corporation v. Franchise Tax Board, satellites were operating in the geostationary orbit. The owners of the satellites, who were located outside of California, established an earth base that gathered signals for transmission to other carriers. Claiming the satellite was utilised within the state, the California Court of Appeal supported the incorporation of the satellite’s worth in the property for allocating California income tax. Nevertheless, this was reliant on the earth station’s presence because, without it, California wouldn’t be connected to the satellites’ functions in space.

In Asia Satellite Communications Co. Ltd. v. DIT, the Court held that an important component in determining how to tax such situations is through thoroughly analysing the technical operations of the satellites.

Where do Astronauts pay taxes?

Scott Kelly, the astronaut, lived in space for almost a year. Does this mean he didn’t have to pay taxes since he was not a resident of the United States or for that matter even the Earth? Even though he orbited the Earth every 90 minutes, he didn’t visit any country since the sovereign airspace does not stretch out to outer space. In such scenarios too, due to the lack of laws, the traditional principles of taxation need to be adhered to. This situation is identical to seafarers rendering their services on a ship. However, one must establish the nature of employment abroad, whether the International Space Station falls under the ambit of a “ship” or a “vessel”. In the Indian scenario, hypothetically, the residential status of the astronaut will be considered based on the number of days they stay aboard the ISS and physically outside the boundaries of India.

How should outer space activities be taxed?

The method of taxing outer space activities can be like taxing activities in digital space. It’s possible to argue that the inadequacies of tax regimes based on residential status have been made apparent by cross-border online services. To combat this, the Organisation for Economic Co-operation and Development (OECD) is spearheading initiatives to fundamentally redefine the global tax regime. Space taxes may eventually follow an identical course. However, this does entail a risk since individual nations would implement unilateral measures, creating an unstable and challenging tax environment for the space industry. Using residential status for calculating the amount of tax to be levied is not the right step in the case of space activities even though it is considered to be of central importance to this sector.  This is due to the fact that firstly, space does not have boundaries and the Outer Space Treaty prohibits states from claiming sovereign power in outer space. Secondly, there are many ambiguities when it comes to applying the same residence-based tax system in this scenario which will lead to more problems. 

An alternative model for taxing outer space activities would be through the existence of a voluntary tax system between participating nations. These nations can choose to invest in the advancements of space technology in order to be able to reap the benefits that arise out of it. This could make it possible for new countries to engage and profit from space activities while also taking into account the legitimate interests of those countries and commercial players who currently fund these activities solely. Nevertheless, it is crucial to note that a voluntary tax system for space activities could generate issues of equity, as certain nations will gain from such activities even if the investment made by it is low in comparison with others. For such a framework to prosper, there must be the existence of a universal organisation administering space tax. This function can also fall under the functions of the World Bank. 

Conclusion

Through this write-up, it can be understood that outer space is not an outlet for tax evasion. The lack of a proper tax regime does not imply that taxes need not be paid appropriately. Although governments and organisations, both domestic and global, continue to commit a significant amount of money and time to the expanding space sector, there has been less focus on making sure that tax regimes keep up with it. In complex situations such as these, the basic principles of taxation law must be kept in mind. However, it is challenging to do so since space does not have any boundaries and nations are prohibited to establish sovereignty in outer space. Even though outer space lies outside the boundaries of any country, individuals are liable to pay taxes for the income earned in space. It can be concluded that there are many gaps and a lack of a proper tax system when it comes to outer space activities.  Therefore, a multilateral approach must be adopted to tackle this issue. There shouldn’t be a zero-tax system being followed in zero gravity. The lack of adequate laws can allow people to find loopholes to reduce their tax liabilities. However, the space sector is in no way a sector that is a channel for tax evasion.

*Student at Symbiosis Law School, Hyderabad.

References

Diane Riordan, ‘The Challenge of Taxing Business in Outer Space’, Challenge , Vol. 47, No. 6, 2004, pp 109-116.

Centre for Aviation and Space Laws Volume 2 Issue II

Drone Laws in India: Reaching Its Potential or a Long Way to Go?

Kanchan Yadav*

Keywords:   DGCA – Drone Rules 2021 – Legality of Drones – UAV – UIN

Background

While the widespread usage of drones seems to be a relatively new phenomenon, the technology itself has been in existence for quite a while. Previously, the Unmanned Aerial Vehicles (flying objects that are now broadly classified as drones) used to be almost exclusively used for military or combat purposes. Unmanned vehicles are very advantageous in the sense that they are able to gather important data, often from beyond the enemy lines, without any harm or casualty to the people. Without there being a human pilot or crew on board, the drones usually use various sensors and detectors to ensure that they can fly unobstructed and can capture the necessary images or footage. However, the operation of the same is usually dependent upon a human operator. 

With the advent of the twenty first century and the evolution of drones as a better, efficient, and accessible piece of technology, their user base is no longer limited to the government. Now, private individuals and organizations also use drones for a number of commercial and non-commercial purposes. However, in most nations, including India, the legal regime related to such vehicles is still in its nascent stage. This is an area that requires urgent attention, because in absence of dedicated laws and policies, drones would usually be governed by general aviation law – which are stricter in nature, as those laws were framed keeping in mind large aircrafts. Without a legal regime that neutralizes the elements of misuse from drone usage while ensuring that they can be utilized to their full efficiency, a nation is bound to miss out on the several ground breaking benefits that drone usage offers. The potential areas for drone usage range from delivering help in remote or disaster ridden areas, helping in agriculture, monitoring and surveillance, art forms such as photography, and many more. 

Drones – How Does the Indian Law Define Them?

The first legal framework in India that directly dealt with the UAVs or drones, was the Unmanned Aircraft System Rules of 2021. These rules categorised all kinds of unmanned airborne vehicles into three categories – aeroplane, rotorcraft, and hybrid unmanned aircraft system, with most modern drones falling under the last category. This category has been further sub-divided into three categories – remotely piloted, model remotely piloted, and autonomous unmanned aircraft systems. Moreover, by weight, these unmanned aircrafts are further divided into three categories – nano (weight of less than or equal to 250 grams), micro and small (250 grams to 2 kg and 2 kg to 25 kg respectively), and medium and large (25 to 150 kg and more than 150 kg respectively). 

The next set of rules on the above-stated issue is the Drone Rules of 2021. Rule 3(i) provides the definition of drone and states that “Drone means an unmanned aircraft system”. Definition of ‘unmanned aircraft system’ has also been provided in the Rules. Rule 3(zb) provides that it is “an aircraft that can operate autonomously or can be operated remotely without a pilot on board”. Categorisation similar to that provided in the Unmanned Aircraft Systems Rules is provided in Drone Rules as well, with there being three kinds of aircraft systems, and further categorisation into three categories based on the piloting mechanism of the same. However, Rule 5 of the said Rules provides a much more detailed categorisation of the aircraft systems based on weight, with the five categories being nano, micro, small, medium, and large systems. The weight limits for every category remains the same as before. In 2022, the Drone (Amendment) Rules came into force, though it makes no change in the definition and description of what kind of vehicles would be considered as drones. 

Other than the aforementioned rules that govern the usage of drones in India, there are several regulations and requirements that operate on the registration, licensing, and operation of drones – particularly by private individuals. In this matter, the primary authority is the Directorate General of Civil Aviation (DGCA), which formulates, revises, and notifies such requirements from time to time. 

Regulations on Flight 

Once it has been classified as to which flying objects would be considered as drones, the current legal regime then provides a comprehensive guideline on how and under what circumstances they may be flown. To begin with, a type certificate is required to be issued for every UAV or drone. Type certificate may be obtained by utilizing the digital sky platform. Once a proposal has been made under the same, it will be examined by the Quality Council of India, and submitted before the Director General within the time period of sixty days from when the application was made. If satisfied, the Director General may then issue a type certificate for the particular aircraft, which should be done within fifteen days from submission of the report. This type certificate requirement is exempted only for two categories of UAVs –model and nano. 

Irrespective of the nature of the aircraft in question, a registration of the Vehicle or drone must be made on the digital sky platform, without which, it cannot be flown legally. The platform will provide each vehicle with a unique identification number. This application would also be made via the digital sky platform, which would ensure verification of details and issuance of Unique Identification Number (UIN) to the ultimate user. This UIN would be connected with the serial number provided by the manufacturer, which would be controlling the flight control module and remote pilot station. This also mandates that the flight control module and remote pilot station cannot be changed without making the necessary changes through the digital sky platform first. Moreover, a person who had an existing unmanned aircraft system during the enactment of these rules, would have till 31st December, 2021, to register their vehicle. Provisions for transferring the ownership and details of a UAV and deregistering a lost or damaged UAV is provided in the Rules as well. 

Rule 12 of the Rules also provides that some safety features for the drones may be mandated by the government at any point of time. This would include aspects such as ‘no permission – no take-off’ for the hardware and firmware of the individual. The vehicles may also be equipped with real-time tracking beacons, which would relate its UIN with various aspects such as location, altitude, and space. Another possible safety feature would include the capacity to geo-fence. 

While these are the requirements that one must comply with while initially acquiring a drone and making it ready to fly, the operation of drones in itself is highly regulated under the Indian regime. To begin with, it calls for an airspace map, which would divide the country into red, yellow, and green zones. In the red and yellow zones, a drone may be operated only with prior permission. However, the green zones are exempted from such requirements. The zoning mechanism is dynamic and the status of a zone may be changed as per requirement, therefore, ensuring that a one-size-fits-all approach is not adopted for earmarking the zones. While operating such vehicles, the Rules also mandate that products such as arms, ammunitions, explosives, dangerous goods, etc., cannot be carried or sent via a drone, to ensure safety and security for all the people. 

To fly a drone itself, a user would need to acquire a valid remote pilot license, obtained from the digital sky platform, without which it would be illegal to operate a drone – even for a very short duration. Any person who is between the ages of eighteen to sixty-five and is educated at least till class X, would be eligible to apply for the remote pilot license. The license is valid for a ten-year period, after which it must be renewed. However, the users who are operating a nano UAV or a micro-UAV for non-commercial purposes, would not be required to obtain the license. 

Room for Improvement

In view of the foregoing discussion, it may be said that while India’s legal regime related to drone usage is still evolving, it has got a good start. While a number of licenses and permits are required to own, fly, and use a drone, the process is highly streamlined, with the digital sky platform being utilized for everything. However, the primary gap area, which has the potential to cause serious security threats in the future as well, is the exemption that is being provided to the nano, and to some extent, micro aircrafts. 

The general idea behind exempting them from registration and remote pilot licensing is that these would ordinarily be recreational vehicles, and mandating a strict licensing procedure on them would significantly hamper trade and usage of such devices. However, the problem lies in the fact that the categorization is done based solely on weight, and other technological factors are not taken into account. With the advent of artificial intelligence and other emerging technologies, it would not be a strenuous task to equip a nano or micro drone with the equipment to cause serious threat to the safety, security, and privacy of the people of India. Thus, the categorization system which forms the basis of the licensing procedure of drones and exemption from the same, requires a serious overhaul to mitigate these potential concerns in an urgent manner. 

* Junior Research Fellow, The WB National University of Juridical Sciences, Kolkata.

Centre for Aviation and Space Laws Volume 2 Issue II

Liberalization of the Indian Space Sector: Private Participation and Legal Challenges

Rongeet Poddar*

Keywords:      Authorization – Draft Space Activities Bill, 2017 – IN-SPACe – Outer Space Treaty – Supervision

Introduction

The Indian government is keen to ramp up private sector participation in space activities, following affirmation from the Union Cabinet. The principal science advisor of the Indian government has recently underlined the intention to have greater involvement from private players, acknowledging the Indian Space Research Organization’s (ISRO) limited capacity. While ISRO has historically played a pivotal role towards advancing India’s space programme, the private sector was restricted to a collaborative role in the manufacturing sphere.

Private players are now expected to actively engage in launching satellites and offering myriad services that would facilitate various domains such as agriculture by enhanced accuracy in climate patterns, increase connectivity capacity and offer an impetus for businesses in the long run. Moreover, the exploration of private avenues is likely to allow the premier government space agency to devote its attention solely to specialized research programmes. The government has also created leeway for a foreign investment stimulus – 100% foreign direct investment has been permitted in the sphere of satellite operation. It is expected that such liberalization would further augment India’s burgeoning capacity in the space activities domain.

From a legal standpoint, the challenge before policymakers has been to strike a balance between offering a fillip to privatization in the space sector and also having a concrete regulatory framework in place. Laws must be designed not only to ensure compliance to international treaties but must also mirror global best practices. Since commercial entities will be keen to maximize profits to recoup the substantial investments that space projects demand, it is imperative that compliance costs are minimized. Therefore, the legal architecture regulating space activities is also expected to be amenable to business interests.

Recent privatization trends in the space sector

The Indian National Space Promotion and Authorization Centre (‘IN-SPACe)has also been set up to enable private enterprises to utilize government infrastructure for conducting satellite launches and providing a myriad range of services in the process. As an autonomous institution functioning under the aegis of the Department of Space, the IN-SPACe has also been entrusted with regulating the involvement of private entities. Recently, two Indian enterprises have received the green signal from IN-SPACe for their respective payload launches.

At the same time, the Draft Space Activities Bill, 2017 (‘Draft Bill’) had been envisaged, owing to the pressing need for having a domestic space law. Despite the advent of IN-SPACe as a regulatory institution, there has not been sufficient progress in the legislative sphere. Interestingly, even as the present dispensation in India appears to be more receptive to the prospect of private sector engagement in outer space activities, the legal regime appears to be at a nascent stage.

As acknowledged in the ‘explanatory note’ to the Draft Bill, the government is cognizant of the fact that if space exploration has to be pursued on a commercial scale, a licensing framework has to be established for authorizing private forays into space. In fact, a robust national space law is seen as the ideal precursor to private participation. It can provide investors a sense of certainty as they seek to leverage funding for satellite operations.

While IN-SPACe maybe the genesis of a private space activity ecosystem, it has to be backed by a concrete space law, as is the case in advanced space-faring nations of the West. The overarching tendency towards privatization in the explanatory note has been flagged since it places commercial use of space at a higher pedestal over India’s treaty commitments; this approach is viewed as a slippery slope. Even though the Draft Bill is regarded as a welcome move, the inadequacies remain far too intractable to overlook.

International commitments

Being a party to all major international treaties governing outer space, barring the Moon Agreement, India is obligated to adhere to treaty obligations. It must be noted that Article VI of the historic 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’) puts the onus on state parties to bear responsibility for “national activities in outer space.” A mandate has been imposed on states to create an apparatus for supervision. Secondly, Article VII of the Outer Space Treaty attributes liability to state parties for damage caused by space objects launched from their territory. Thus, the accountability for private space activities has effectively been thrust on state parties.

International efforts, spearheaded by the International Law Association, for pinpointing a set of uniform global regulation standards also culminated in a model law adopted by the United Nations Committee on Peaceful Uses of Outer Space. Under the model, national legislation proposed, private sector participation in space activities would be subject to a strict standard of scrutiny undertaken by states domestically based on ‘authorization’ and ‘supervision.’ Its regulatory design is backed up by sanctions regime under which authorization suspension is rendered permissible.

Additionally, a provision has been incorporated for environmental impact assessment of private space activities. The model law necessitates the adoption of a debris mitigation framework. There is also an avenue for the government to pursue claims against a private entity in the event where compensation has to be paid by the state to a third party for the damage caused by the private space actor. Even as the Draft Bill in India claims to have utilized the ILA model law as a blueprint, there are several pitfalls in the proposed law which have been highlighted in recent scholarly works.

Scrutinizing the Draft Space Activities Bill, 2017

The applicability of the Draft Bill is restricted to enterprises in the private sector which are registered or incorporated in India. The bill does not provide clarity as to what will happen if foreign firms seek to participate in the Indian space sector in a collaborative capacity with the private sector. Joint ventures undertaken by Indian firms with foreign investors could be operating in a legal vacuum. Moreover, it may be an uphill task to determine a space object of ‘Indian origin’ to which the proposed legislation would be applicable – the Draft Bill is silent on the critical question.

The definition of ‘space activity’ in the Draft Bill is further shrouded in ambiguity. Its residuary segment potentially brings in research or allied activities within the fold of space activity. The wide ambit of the definition is also likely to cover the manufacturing sector as it is inclusive of space objects ‘procurement’. The expansive nature of the clause appears to transcend the understanding of space activity in the ILA model law which encompasses “other activities essential for the launch, operation, guidance and entry of space objects.”

The power of supervision and regulation have been conferred upon the Central Government. In addition to policy making pertaining to outer space activities, the government can issue licenses for commercial space activity and also monitor compliance with safety standards prescribed. Since the Draft Bill had identified the need for a ‘regulatory mechanism’, it is evident that IN-SPACe is the concerned agency that will play the role of an autonomous agency with regulatory functions.

As outlined in Chapter III of the bill, the license issued by the government is a sine qua non for commercial space activity – its object is to ensure compliance to India’s treaty commitments. Interestingly, leeway has been provided for conduct of space activity in the Draft Bill even without authorization as long as it does not contravene India’s international obligations. The Central government has been designated as the sole authority which can provide such an exemption, subject to parliamentary scrutiny. However, this provision may be singled out for criticism as it could be prone to misuse. Since, the Bill is silent about the terms of exemption, it could provide untrammelled impunity to operators of space activity in the private sector. Thus, there is an urgent need to rethink the exemption clause.

While the licensing terms in the Draft Bill have a ubiquitous reference to preventing “adverse damage or pollution to the environment,” it does not insist upon a comprehensive environmental impact assessment for space activities based on precautionary principle. It remains to be seen whether the lacuna in the draft is addressed in the near future. On the other hand, the Central government’s blanket ownership right on “intellectual property right developed, generated or created onboard a space object in outer space” is further likely to hinder private sector engagement. Likewise, the incorporation of an access and benefits sharing clause as a part of the regulatory mechanism is also likely to be a cause for concern. Lastly, scholars have highlighted how several aspects of commercial activity in outer space such as resource extraction or tourism have been ignored in the Draft Bill.

Conclusion

Despite its shortcomings, the Draft Space Activities Bill, 2017 was a welcome move. It underscored the government’s tacit recognition that the space sector needs regulatory intervention before the private sector transitions to prominent stakeholders from marginal players restricted to manufacturing activities. In its current form, the Draft Bill has several contentious provisions, as identified, and remains a work in progress. There is scope for further engagement with the critical stakeholders for the creases to be ironed out.

With the IN-SPACe already instituted as a facilitator for stimulating private investment and participation in space activities, the government remains keen for governing non-governmental engagement in the space sector. It must also remain cognizant of fulfilling India’s international obligations in this regard. Besides adhering to the mandate of international treaties, the new law has the enviable task of ushering in a regulatory environment that is responsive to the demands of investors who seek to offer a boost to India’s space sector. At the same time, environmental concerns and public safety issues cannot be relegated to the margins.

* LL.M. graduate with International Law specialization.

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 

Centre for Aviation and Space Laws Volume 2 Issue I

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.

Centre for Aviation and Space Laws Volume 2 Issue I

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.

Centre for Aviation and Space Laws Volume 2 Issue I

Military Use of Commercial Remote Sensing Satellites

Agniva Das* and Dr. Amol Deo Chavhan**

Keywords: Commercial Satellites – Militarisation – Remote Sensing – Satellite Imagery – Outer Space Treaty

Background

On 1 March 2022, Ukrainian Minister of Digital Transformation, Mykhailo Fedorov sent out an appeal to most of the world’s commercial satellite companies via Twitter urging them to help Ukraine by providing satellite imagery for military purposes. The Minister urged eight of the world’s leading earth observation satellite companies to provide high-resolution satellite imagery to monitor Russian troop advancements. Companies like Maxar Technologies and Planet Labs have openly published the images to the media, which is how the world has been witnessing the menace and destruction caused by the war in real time. Moreover, on 2 March 2022, Elon Musk in a tweet acknowledged his direct support to Ukraine by promising to provide better internet connectivity by activating the internet terminals of his satellite internet constellation – Starlink. When civilian or commercial satellites are used for military purposes, it raises serious concerns regarding whether the satellites are to be considered as civilian or military assets.

This is not the first time that civilian or commercial satellites have been used during a military conflict for military purposes. Operation Enduring Freedom, alternatively known as the Global War on Terror, was the first instance when the military relied heavily on commercial satellite space assets like high resolution satellite imagery and satellite communications.

Remote sensing has been used as a mode of surveillance for centuries. Even before the First World War, remote sensors have been utilised by attaching them to hot air balloons and flying them over target cities.  Now, however, specialised satellites with variegated capabilities are being used for remote sensing. These include but are not limited to optical satellites, radar imaging satellites, ultraviolet and infrared imagery satellites, and signal intercepting communication satellites. Remote sensing has several advantages over any other forms of reconnaissance as it can provide high-resolution imagery of not only visible light but also other wavelengths of light. This information can be further used for monitoring enemy troop advancements, strategic planning, and tactical threat assessment.

With the explosive growth of science and technology and the reliance of military activities on the same, the demand for better connectivity and higher-resolution imagery was beyond the military’s ability to fulfil with military owned satellite technologies. The biggest military in the world, the United States Military has since then heavily relied on commercial satellite assets for military use.

Since the attacks of 9/11, the United States have dedicated billions of dollars for the renovation of their military satellite technology for the swift utilisation of these assets by the UK, US and Canadian forces in the ‘Global War on Terror’. Infact, in the year 2006 the United States National Space Policy which was authorised by then President George W. Bush directed all governmental departments and agencies to use, purchase and even modify the U.S. commercial space capabilities and services to the maximum extent to meet the United States Government requirements and make them cost-effective.

Legalities

Such instances have raised further questions regarding the legalities of the militarisation of commercial or civilian satellites, especially with respect to remote sensing, which has been widely debated in recent years. 

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, also known as the Outer Space Treaty, provides certain general provisions for the peaceful exploration and use of space for the benefit and in the interests of all countries on the basis of equality and in accordance with international law. However, it does not provide any specific provision to tackle the legal problems surrounding remote sensing.

It is certainly difficult to understand what kind of military applications fall under activities that are “for the benefit and interest of all countries” as mentioned in the Outer Space Treaty, as any military activity by one country can be seen as an act of aggression by another country. Article I of the Outer Space Treaty, thus, creates a loose obligation that all activities should not be ‘harmful’ in the general sense as opposed to being ‘beneficial’. However, it does not provide any clarity on whether placing commercial remote sensing assets with military capabilities in earth orbit is in the common interest of all countries.

Article III of the Outer Space Treaty dictates that all outer space activities shall be conducted in accordance with international law which shall include the Charter of the United Nations and it shall be in the interest of maintaining international peace and security and promoting international cooperation and understanding. Since the United Nations Charter overrides rights or obligations under any other treaty, the Outer Space Treaty must be read in consonance with the United Nations Charter. In the interest of maintaining international cooperation, Article 2(4)  of the United Nations Charter provides that countries should refrain from threatening and using force against the territorial integrity of any country, or in any other manner inconsistent with the purposes of the United Nations.

Article IV of the Outer Space Treaty prohibits placing into orbit any objects carrying nuclear weapons or any other kinds of weapons of mass destruction and seeks the complete demilitarisation of celestial bodies. However, when read in unison with the United Nations Charter, it can be understood that no restrictions are imposed on any other military activities like remote sensing or satellite communications.

Article IV further dictates that the Moon and other celestial bodies shall be used for ‘peaceful uses’ by all State parties. Fortification, setting up military establishments and testing of weapons are strictly forbidden. What the Outer Space Treaty fails to address is the clear meaning of ‘peaceful uses’ and what kinds of activities fall under this definition. Moreover, the provision provides for peaceful use of the Moon and other celestial bodies but fails to mention that outer space as a whole is ought to be used for peaceful purposes and not only for celestial bodies.

The question that arises here is whether using military capabilities like remote sensing of other countries by using commercial assets violates or infringes the rights or territorial integrity of those countries. If we were to consider the principles of air and maritime law, it is clear that reconnaissance or espionage is permissible on the high seas but not in the territorial waters or the territorial airspace of countries targeted for surveillance.

The Principles Relating to Remote Sensing of the Earth from Outer Space (the “Remote Sensing Principles”) which was adopted by the United Nations in 1986 creates more confusion in this regard as Principle I of the same states that “remote sensing activities by countries shall be conducted to improve natural resources management, land use and the protection of the environment.” This provision leaves room for narrow interpretation that remote sensing shall only be conducted for limited civilian purposes and no military applications for remote sensing shall be allowed.

A better understanding is provided under Principle IV which states that activities are to be undertaken keeping in mind the rights and interests of the sensed country and in accordance with international law. Principle XII further directs the sensing country to provide access to all primary data and the processed data to the sensed country on a non-discriminatory basis and on reasonable cost terms. However, there is a continuous debate regarding the ambiguous nature in which the words ‘non-discriminatory’ and ‘on a reasonable basis’ have been used in the provisions.

The Principles on Remote Sensing also obligate states to undertake remote sensing activities in consonance with norms of international law and state responsibility, therefore the Principles on Remote Sensing act as the basis for states to be held accountable for their actions and also creates obligations for them under the international law framework. On the other hand, the recent rise of non-state actors who have increasingly begun to be drawn into the space race means that Principles in their current form are not extended to them. Further, the rapid ascension of private entities into the commercial satellite spaces also creates a new challenge for the existing framework which is not only not designed to encompass such non-state actors but also does not take into consideration their involvement in military conflicts. The lacunae in this regard needs to be addressed keeping in mind the changing dynamics, especially in light of recent developments.

Conclusion

Lawful remote sensing should be a matter of consent and consultation. Any military espionage using commercial assets with respect to remote sensing should not be considered lawful as it infringes the rights and interests of the sensed countries. It is surprising that most countries do not consider remote sensing by other countries for military purposes to be unlawful. The majority of countries which possess capabilities to use remote sensing technologies for espionage and reconnaissance are the ones with vast wealth and tremendous military capabilities, this may be one of the reasons why unlawful remote sensing is still ubiquitous in the present day. A combined reading of Article I, III and IV of the Outer Space Treaty tells us that the Outer Space Treaty only creates a loose obligation on all State parties who are to conduct activities for the benefit and interest of all countries, which shall be done in accordance with the international law in the interest of maintaining international peace and promoting international cooperation and that it shall be done exclusively for peaceful purposes.

Principles IV and XII of the Remote Sensing Principles 1986, are small steps toward the right direction as they make it mandatory for countries to have the prior consent of the sensed country before undertaking any remote sensing activities and provide all the primary data concerning the sensed country in a non-discriminatory and cost-effective manner.

*4th year BA., LLB(H) student at National Law University and Judicial Academy Assam

**Associate Professor of Law, National Law University and Judicial Academy Assam

Centre for Aviation and Space Laws Volume 2 Issue I

Devas-Antrix Deal: When will the Ghosts of Fraud be Exorcised from the Aviation Sector?

Soumya Gupta* and Dr. Shouvik Kumar Guha**

Keywords: Devas-Antrix Deal – Arbitral Award – Corporate Fraud – Insolvency – Air India.

History of the Dispute

Given the increasing reliance of India on space-based assets and technology, especially for the communications sector, the Devas-Antrix dispute that seems like an ever-renewing source of controversies involving the misuse of political power and governance norms for profit-based ulterior motives, represents a black mark in the country’s aviation and space law spheres. The beginning of the Devas-Antrix debacle goes back to 2005 when an agreement was entered into by Antrix Corporation [‘Antrix’] and Devas Multimedia Private Limited [‘Devas’]. Antrix, established in 1992, was created to commercialize space products. Devas, short for Digitally Enhanced Video Audio Services, set up by former Indian Space Research Organization [‘ISRO’] engineers, and was developed for betterment of satellite communications in space. Devas also has foreign investors from Mauritius involved in the building of the company. The agreed terms were that Antrix will provide 70 MHz of the S-Band space segment to Devas for its digital multimedia services. The S-band space segment is generally used by security forces and government telecom entities and is scarce is global marketplace. Accordingly, Antrix would build, launch and operate two satellites GSAT-6 and GSAT-6A, and lease 90% of the satellite transponder capacity to Devas for its digital multimedia services. Devas agreed to pay a total of $300 million over twelve years to Antrix. Thus, the overall aim of the signed project was to provide broadband wireless services to the remote areas of India.

With a rather achievable and needful goal, both parties proceeded towards their respective duties. However, six years into operation, certain irregularities were noticed and highlighted by mainstream media like The Hindu – these included discrepancies such as financial mismanagement, conflict of interest, non-compliance of rules, and favoritism. Subsequently, February, 2011 witnessed the cancellation of the deal by the then Indian Prime Minister, Dr. Manmohan Singh, based on the ambiguously worded phrase security reasons Soon after that, allegations surfaced that the Antrix contract deal was tainted with corruption, which was not an out-of-the-box allegation against the United Progressive Alliance government. The decision to annul the deal was taken amidst the 2G scam and in the face of mounting claims that the deal involved the handing over of communication spectrum valued at nearly Rs 2 lakh crore for a mere pittance.

Chain of Arbitral Awards and Judicial Decisions

The uncalled and invalid abrogation of the deal had upset Devas, which led to a series of judicial decisions. The three legal disputes that arose from this were a commercial arbitration between the Antrix and Devas Multimedia at the International Chambers of Commerce [‘ICC’], and two bilateral investment treaty [‘BIT’] arbitrations brought by the Mauritius investors in Devas Multimedia under the India-Mauritius BIT [‘Devas tribunal’] and by German company Deutsche Telekom under the India Germany BIT [‘DT tribunal’]. India saw victory in none of the three international disputes. The ICC arbitration tribunal in 2015 ordered Antrix to pay $562.5 million-plus interest to Devas as damages for wrongfully repudiating the contract. A United States [‘US’] court recognized and confirmed the ICC award in 2021. India appealed against the decision of the Devas and DT tribunals before the Dutch and Swiss courts respectively but lost again. Thus, all the international proceedings had issued orders against India; however, in India there were a variety of other issues raised against Devas.

Cases and Investigations were filed against both the parties in India as well. The Department of Space [‘DoS’] said that the Central Bureau of Investigation has filed an FIR against Devas and other unknown public servants of Antrix/ISRO/DoS and it is presently under investigation. The Enforcement Directorate has launched an investigation against Devas and its directors and foreign subsidiaries under Prevention of Money Laundering Act and Foreign Exchange Management Act [‘FEMA’]. Devas Multimedia is suspected to have received foreign direct investment of Rs. 578.54 crore between May 2006 and June 2010 from various overseas investors, but the share subscription agreements it entered with them contained clauses contrary to the conditions specified in the approvals granted by Foreign Investment Promotion Board. Devas Multimedia was also charged with contravening the FDI regulations under FEMA for assuring foreign investors an annual eight per cent priority dividend in addition to other dividends on cumulative basis, and for one tranche of receipt of funds, issuing a security akin to an External Commercial Borrowing promising higher returns than the ceiling fixed by the Reserve Bank of India.

In October 2020, a US court asked Antrix to pay the damages after Devas investors approached it for enforcement of the award. The Canadian Court in this regard allowed Devas’ shareholders to seize an amount of over USD 30 million of the Airport Authority of India [‘AAI’] held by the International Air Transport Association [‘IATA’]. This US court order was put on stay by the Indian Supreme Court in November 2020. The Court also asked the Delhi High Court to hear arguments from Antrix against the enforcement of the award. Later, in January 2021, acting upon the advice of Ministry of Corporate Affairs, Antrix approached the Bangalore bench of the National Company Law Tribunal [‘NCLT’] in January 2021, to initiate a winding up petition against Devas under Companies Act. NCLT passed a judgment to wind up Devas on account of fraud during the original deal. Among the other contentions brought forth by Antrix, a key one was that its original agreement with Devas mentioned subsidiaries and associate entities like the DEVAS2 Technology, DEVAS Device and DEVAS Services, despite none of these entities ever being in existence throughout the existence of the original company. In September 2021, the National Company Law Appellate Tribunal [‘NCLAT’] upheld the NCLT judgment. Subsequently, one of the ex-directors of Devas Multimedia and DEMPL, a minority shareholder in Devas, challenged the NCLAT order before the Supreme Court. The latest development in the series of judgments and orders happened on January 17, 2022, where the Supreme Court upheld the NCLAT judgment on winding up Devas, and also the NCLAT finding that the entire company had been set up with fraudulent motives in connivance with certain officials from Antrix. In doing so, the Supreme Court also refused to entertain Devas’ argument that the current petition filed by Antrix had been done solely to deprive Devas of the benefits of the aforementioned international arbitral awards, or that Antrix’s petition is barred by limitation.

What Lies Ahead?

The trajectory of international judicial decisions show that Devas is armed with orders against India and has initiated proceedings in multiple jurisdictions to attach the assets of Indian public sector undertakings. Devas has witnessed success in courts of France and Canada. The Indian government is resolute to get Devas to wound up; however, it is not easy to get an irrevocable criminal conviction in this case. The Supreme Court judgment is helpful in challenging the attachment order on the basis that Devas-Antix contract violates international public policy since the contract was contaminated with fraud from the beginning. Generally, courts accord high deference to an arbitral award and refrain from delving into the merits of the case. Added to the fact is that India has already lost two cases emerging from violation of the BITs. This would mean that India will have to put up a tough fight in international courts. The end of the Devas-Antrix saga anytime soon seems bleak since both the parties are trying to make their best case using all legal aid available.

In response to the asset seizing order favoring Devas, the AAI in the beginning of the year announced that it would defend itself by taking legal recourse. These assets include, inter alia, air navigation charges and aerodrome charges collected on behalf of AAI. A huge battle lies ahead of AAI to defend its assets from getting attached. Earlier, Indian government did not choose the best legal way to defend itself in the tribunals. However, considering the huge amount at risk here, it is essential that AAI takes a sound legal step ahead, keeping in mind the consequences that could follow for an already pandemic-hit aviation industry. The initial developments so far seem promising, with the erstwhile Indian national carrier Air India already having won a judgment in its favour in February 2022 from the Quebec High Court in Canada, allowing it to challenge an earlier Canadian order to consider the airline as a representative of the Indian government and seize its funds to give effect to recovery of compensation, as awarded under earlier arbitral awards, by foreign shareholders of Devas. A similar challenge is also on its way at the United States Federal Court for the Southern District of New York. Meanwhile, with the shareholding of Air India having been transferred to the Tata Group of companies through the latter’s subsidiary Telace, arguments claiming the carrier as an alternative to the Indian government for recovery of said arbitral awards, are likely to face even greater opposition before any court of law.

* Student, B.A., LL.B. (Hons.), The West Bengal National University of Juridical Sciences

** Assistant Professor of Law (Senior Scale), The West Bengal National University of Juridical Sciences

Centre for Aviation and Space Laws Volume 2 Issue I

Can Space Tourism co-exist with Space being turned into a War Zone?

Karl Grossman*

Keywords:   Outer Space Treaty – PAROS Treaty – Peaceful purpose – Space Doves – Space Force

The push to turn space into a war zone could spell goodbye to space tourism.

The space tourism drive that is underway, led by billionaires Jeff Bezos, Richard Branson and Elon Musk is seen as only a start. Meanwhile, there’s the push, led by the United States, to turn space into a war zone—and this, despite the Outer Space Treaty of 1967 that sets space aside for peaceful purposes. As the then U.S. President Donald Trump declared in 2018 while advocating for formation of a U.S. Space Force, “it is not enough to merely have an American presence in space. We must have American dominance in space.”The following year, he signed the National Defense Authorization Act of 2020 establishing the Space Force as the sixth branch of U.S. armed forces and said: “Space is the world’s newest war fighting domain.” The Space Force, Trump said, would “help” the U.S. “control the ultimate high ground.”  Then, at the unveiling of a Space Force flag at the White House, Trump said: “Space is going to be…the future, both in terms of defense and offense.”

Trump’s successor, U.S. President Joe Biden, has not rolled back the U.S. Space Force. Several Democratic members of the U.S. House of Representatives last year introduced the No Militarization of Space Act that would abolish the U.S. Space Force. The prime author of the legislation, Representative Jared Huffman of California, in a statement, called the Space Force “costly and unnecessary.” 

The measure got nowhere. That was not surprising considering that most Democrats in the U.S. House of Representatives and Senate and nearly all the members of the Republican Party voted for the National Defense Authorization Act of 2020 providing for the Space Force’s formation. Thus, the U.S. Space Force is moving forward.

Last year, Space Force requested a budget of $17.4 billion for 2022 to expand its reach as reported by Air Force Magazine.  Space Force also aims to fund more than $800 million in new classified programs.“Guardians” is the name adopted by the U.S. Space Force in 2021 for its members.

In 2020, the Space Force received its first offensive weapon: satellite jammers. The satellite jammers can be used to interrupt any satellite communication and can hinder warning systems designed to detect attacks from the US. Soon afterwards, the Financial Times’ headline was: “U.S military officials eye new generation of space weapons.”

As to the impacts of war in space, Bruce Gagnon, coordinator of the Global Network Against Weapons and Nuclear Power in Space, in an interview in 2021 said:

In 1989 during one of our campaigns against NASA plutonium launches [NASA’s launching of plutonium-powered space probes], we had a rally at the Kennedy Space Center in Florida, and our keynote speaker that day was Apollo astronaut Edgar Mitchell, one of the moonwalkers. And he came and said if there is one war in space, it’ll be the one and the only. He said because we will create so much space debris or space junk from all the destroyed satellites and things like that in space that there would literally be a minefield encircling the planet – he called it a piranha-laced river—and we would not be able to get through. A rocket would not be able to get off this Earth through that minefield. So, it’s insane to think about having a war in space.

Gagnon has also spoke of how space warfare would mean activity on Earth would immediately shut down as cell phones, ATM machines, cable TV, traffic lights, weather prediction and more are all hooked up to satellites.

Alexander Chanock, while pointing to the generation of space debris resulting from warfare in space, noted that space weapons would produce an immense amount of space debris. Chanock, then a candidate for a law degree, now a legislative counsel in the US House of Representatives, wrote that, “The Fear is that destroying in space could generate extremely dangerous debris with a long orbital life.”

Chanock quoted Dr. Joel Primack, professor of physics and astrophysics at the University of California, Santa Cruz, stating that “the weaponization of space would make the debris problem much worse, and even one war in space could encase the entire planet in a shell of whizzing debris that would thereafter make space near the Earth highly hazardous for peaceful as well as military purposes.”

The blueprint for international cooperation in space has been the Outer Space Treaty of 1967 which sets aside space for peaceful purposes and declares it a “global commons.” It was put together by the United States, United Kingdom and the former Soviet Union and has wide support from nations around the world. As Craig Eisendrath, who as a young U.S. State Department office was involved in the treaty’s creation, explained, the aim of the Outer Space Treaty was to de-weaponise space before it got weaponized to keep war out of space altogether.

The Outer Space Treaty of 1967 prohibits placement “in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies.”  For decades there has been an effort to extend the Outer Space Treaty and enact the Prevention of an Arms Race (PAROS) treaty, which would bar the placement of any weapons in space. China, Russia and Canada have been leaders in seeking passage of the PAROS treaty. But the United States—through administration after administration, Republican and Democrat—has opposed the PAROS treaty and effectively vetoed it at the United Nations. A rationale for the U.S. Space Force has been that it is necessary to counter moves by Russia and China in space, particularly development of anti-satellite weapons. This is what a Cable News Network report in 2021, titled “An Exclusive Look into How Space Force is Defending America,” centrally asserted. There was no mention in the six-minute-plus CNN piece of how China and Russia have been leaders for decades in the push for PAROS, and how China and Russia in recent times have reiterated their calls for space to be weapons-free.

Most recently, the U.S. concern about Russia and China moving into space militarily was heightened by Russia in November 2021 using an anti-satellite weapon to blow up a defunct Soviet intelligence satellite that was launched in 1992. Dr. Paul Robinson, professor of public and international affairs at the University of Ottawa, in an article on RT, views that the Russian effort may be intended to bring the United States to the negotiating table by highlighting the space vulnerability.

The history of U.S. interest in space warfare includes the Strategic Defense Initiative scheme of the U.S. President Ronald Reagan during 1980s, dubbed “Star Wars,” predicated on orbiting battle platforms with on-board hypervelocity guns, particle beams and laser weapons energized by also on-board nuclear reactors.

A U.S. Space Command was set up in 1985. The motto of one of its units, the 50th Space Wing is “Master of Space”. The unit is now a component of the U.S. Space Force.

A January 2022 article in Air Force Magazine called attention on this aggressive stance of the U.S. Space Force. Alexander Chanock also expressed concerns on this issue in his article published in the Journal of Air Law and Commerce. While highlighting the contrasting views on the U.S. developing space weapons, he refers to “Space Doves”, who are against space weaponization, especially Nina Tannenwald. Tannenwald wrote that in the long run she believes that the best way to protect American interests in space would be through stability of the rule of law, rather than through unilateral assertions of military power. She asserts that US should promote a transition to a regime that consists of mutual restraint and benefit in space.

However, Chanock, in his piece, stated: “Although space doves have many valid arguments for reducing the danger of space weaponization, in reality, it is unlikely that their ideas will prevail.” He noted: “The U.S. Congress has consistently rejected any bill that tries to ban the use of space weapons.” He cited bills that “sought to ban space weapons but failed” including the one introduced in 2001 by Representative Dennis Kucinich of Ohio which “did not garner a single co-sponsor.”

Internationally, since the creation of the U.S. Space Force, several nations—including the United Kingdom—have begun to emulate the U.S. in space military posture. “How to halt the space arms race” was the headline of an article in the British publication The New Statesman in 2021. It stated: “This year the UK launched its own space command, with military chiefs acknowledging space as a domain of conflict co-equal with air, land, sea and cyber,” said the piece by Paul Mason.

“We are stuck,” the article concluded. “And while polite verbal fencing takes place at the UN, the major powers of the 21st century are engaged in an unprecedented expansion of military power in space, leaving the vast majority of countries powerless, most of humanity as passive spectators, and the Earth’s orbit increasingly polluted with debris from exploded satellites.”

This is pessimistic forecast need not be. The Outer Space Treaty of 1967 was—and is—a visionary documentary. War on Earth is terrible enough. It must not be brought up to the heavens. This will take continued political will and international pressure—to preserve and extend the Outer Space Treaty of 1967 and its setting aside space for peaceful purposes. Especially in the United States, this will require action at the grassroots because the two major political parties in the U.S. have joined in a bellicose stance on space, supporting it becoming a war zone. Every year, the grassroots organization Global Network Against Weapons and Nuclear Power in Space, founded in Washington, D.C. in 1992 and the leading group internationally challenging the weaponization of space, holds a “Keep Space For Peace Week” with actions around the world. Meanwhile, there are nations around the globe that have, unlike the U.S., adopted a peaceful stance—as reflected in their support for the proposed PAROS treaty.

We must, indeed, keep space for peace. Can space tourism co-exist with space being turned into a war zone? The answer is no. And with a shooting war in space, it will not only space tourism that would be kissed goodbye.

*Professor of Journalism at the State University of New York/College at Old Westbury & Co-founder of the Global Network Against Weapons & Nuclear Power in Space.

Centre for Aviation and Space Laws Volume 2 Issue I

Space Exploration and India’s Geoplotical Dilemma

Dhruv Singh Garcha & Krishna Ravishankar*

Keywords:    Artemis Accords – Delhi Declaration of Friendship – Geopolitics – International Lunar Research Station – Space Exploration

Given the rapid growth and advancement in technology, space exploration has moved up the ladder of many countries’ national priorities. With the geopolitical matrix unfolding even while exploring the realm of the cosmos, the American backed Artemis Accords and the Sino-Russian International Lunar Research Station (ILRS) project have been the most significant multilateral developments with respect to space governance. This article tries to navigate the path that India as an emerging space power should take which would be beneficial for her space ambitions, keeping in mind her geostrategic interests.

Who Owns Space?

Before looking into the Accord, it is crucial to understand the legalities behind space resource ownership. The chronology begins with the UNGA Declaration of 1963, which debarred claiming sovereignty over celestial bodies. Then came the Outer Space Treaty of 1967, that prohibited the placement of Weapons of Mass Destruction and the establishment of military bases in Space. Furthermore, it laid down minimum regulatory guidelines for resource explorative activities. It was followed by the Moon Agreement of 1979, which refined the regulations entailed in the 1967 treaty and provided for an efficient framework to restrict the exploitation of space resources. However, the letter of the treaties lacks clarity. Article 1 of the 1967 treaty describes outer space as the “province of all mankind.” On the other hand, Article 11 the 1979 agreement describes it as “common heritage of mankind.” This inconsistency has led to long-standing debates about the interpretation and implications of these phrases. The US has always asserted the 1967 treaty’s definition of outer space since it allows for private and state ownership over resources extracted from celestial bodies. Furthermore, it is silent on private ownership over the entire outer space itself, something the Accords are likely to take advantage of. The US’s assertion was further solidified through an executive order dated April 2020 which instructs the Secretary of State to “object to any attempt to treat the 1979 Moon Agreement as expressing customary international law.” This can be said to have acted as the bedrock for the Artemis Accords.

The Artemis Accord

The National Aeronautics and Space Administration’s Artemis Accords encompass a series of bilateral agreements between the US and other states to establish a common vision via a practical set of principles and practices for enhancing the governance of civil exploration and using the outer space to advance the Artemis Program. It further envisages to land the first woman on the Moon by 2024 with participation of both international and commercial players.

The Accords require the nations to ensure that space missions are deployed for non-combat purpose, remain transparent in their plans and policies for space exploration, work towards interoperability of space agencies, make available emergency assistance in space, register Space objects as per the Registration Convention, share scientific data among other signatories, preserve outer space heritage and reduce space debris and ensure minimal waste generation.

The principles are intended to apply to civil space activities of each Signatory by taking appropriate measures such as mission planning and contractual mechanisms.

The Sino-Russian International Lunar Research Station Initiative

With Russia dismissing the Accords to be a tool for American hegemony, along with NASA’s ban from collaborating with China in 2011, the Roscosmos signed a partnership with China’s National Space Administration (CNSA) to develop an International Lunar Research Station (ILRS) on the Moon or as Professor Velina Treschokva puts it, “A Dragon-Bear Space Coalition to counter the Eagle.”

In June 2021, the Chinese national space agency released a three-phase plan for the ISRL Project with phase 1 (from 2021-2025) which would collect data and validate “high-precision soft landing” for lunar missions. The second phase or the construction phase (from 2026-2035) would involve two stages with the initial stage involving joint missions, delivering cargo and collection of lunar samples and the second involving construction of lunar and in-orbit. In the third phase, beginning in 2036, crewed landings will begin. The two countries are actively inviting other nations as well, to collaborate and develop the facility.

The Sino-Russian space exploration alliance will certainly be a major rival for the Artemis initiative, considering Russia’s extensive expertise in space technology and China’s resources.

India’s Position with Respect to the Two Blocs

The two geopolitically opposite space exploration programmes have created new dilemmas for India’s lunar governance and ambitions since the decisions it takes will be based on its relations with the pioneers of these blocs.

To understand the complexity of India’s choice with respect to these two blocs, it is vital to look at India’s space collaboration with the blocs’ members, and their diplomatic relations. The reason for doing so is to provide an all-encompassing solution for the scenario since India’s decisions in this regard will inevitably affect its relations with all the countries involved.

India and the Artemis Accords

Lately, there has been an increased level of collaboration between India and the US’ space agencies. India’s first lunar space project, Chandrayaan-1 carried the Moon Minerology Mapping System developed by NASA.

ISRO and NASA are presently working on the NISAR project, which will launch in 2022 and plans to measure the causes and consequences of land surface changes using advanced radar imaging. The two countries have also decided to conclude an MoU on Space Situational Awareness (SSA), creating a framework to protect each other’s satellites from man-made or natural threats.

India’s close bilateral space collaboration with signatories like Japan in the LUPEX Project and Ukraine in the sphere of semi-cryogenic engines also provides a strong backing for India to join this initiative.

From a diplomatic angle, this initiative forms a natural link to the Quad’s Critical and Emerging Technologies Working Group since the US, Japan and Australia are already signatories of the Accords.

Given the recent privatization of space which allows private stakeholders to enter into space-based commercial ventures, the Accord would allow by allowing sharing of technology, access to global supply chains and improving economies of scale to upscale India’s entire business ecosystem, starting from the SMEs to the NewSpace start-up sector.

India and US’ bilateral relations in general have improved significantly as well, culminating into the 2015 Delhi Declaration of Friendship. The 2005 Defence Framework, bilateral security treaties like BECA and COMSCA, and a Joint Strategic Vision for the Indo-Pacific show the steady partnership between both the countries. Economically speaking, the bilateral trade in 2021 was roughly $145 billion, and the US was the 2nd largest FDI source of India.

India and ISRL

Russian assistance is visible from the inchoate stages of the Indian Space Program, be it the launch of India’s first satellite (Aryabhatta 1), or India’s first human spaceflight mission in 1984.  Moreover, Russia aided India with the provision of cryogenic rockets for its GSLV launchers and is presently training Indian astronauts for the Gaganyaan human spaceflight mission of 2022.

With a long diplomatic history of alliance, the Indo-USSR relationship is important for India’s defence and security needs as evident from the Indo-Soviet Treaty of Friendship and Co-operation, 1971. Russia’s support for India’s Permanent UNSC seat, along with its close multilateral collaboration through fora like BRICS and RIC shape the trajectory of this relationship. The Indo-Russian defence partnership is again of vital significance since Russia is India’s largest biggest defence supplier, complemented by prominent military joint exercises. However, Russia’s closer proximity to China and India’s growing alliance with the USA has not augured well for further co-operation.

Coming to China, despite a shared sense of cultural heritage, Sino-Indian political relations have been turbulent, especially over the Line of Actual Control. Given the recent military skirmishes in Eastern Ladakh, the increased Indo-US co-operation and the growing tensions between Washington and Beijing, there have been impediments in deepening the relations. However, from an economic perspective, China is important for India with a bilateral trade of $125 billion in 2021 and more than $4 billion Chinese investments in Indian unicorns.

So, What Now?

Looking at India’s relations with other space powers, it is clear that joining either of these blocs could potentially sabotage India’s strategic diplomatic interests and space ambitions with the other. As of now, India has multiple ongoing collaborations with numerous space agencies across the globe. Therefore, India need not conceptually side with any of the space groupings but rather practice the doctrine of strategic autonomy and make pragmatic collaborations, giving it privileged manoeuvrability across geopolitical blocs.

* Pursuing BA/LLB (Hons.) from National Law University, Jodhpur.

Centre for Aviation and Space Laws Volume 2 Issue I

Jurisdiction under Article 84 of the Chicago Convention 1944 in the Context of Middle East Conflict

Sandeepa Bhat B.* & Tushar Krishna**

Keywords:  Consultation – Countermeasures – Formalistic approach – Negotiation – Riyadh Agreements

Background

In 2013 and 2014, the Gulf Cooperation Council had undertaken specific instruments, known as “Riyadh Agreements”, under which Qatar and other middle eastern States have made commitments to establish peace. During June 2017, Saudi Arabia, Bahrain, United Arab Emirates (UAE) and Egypt alleged that Qatar has failed to adhere to its commitments under Riyadh Agreements, and thereby, they resorted to take certain countermeasures to make Qatar comply with its commitments. These countermeasures included airspace restrictions for the Qatar registered aircrafts, which triggered Qatar filing an application before the ICAO Council under Article 84 of the Chicago Convention 1944. While the ICAO Council assumed jurisdiction and decided the case in June 2018, Saudi Arabia, Bahrain, UAE and Egypt (herein after “the appellants”) appealed against this decision to the International Court of Justice (ICJ). The appellants contended the lack of jurisdiction of the ICAO Council as well as inadmissibility of Qatar’s claims. However, the ICJ rejected the appeal and held that ICAO Council’s exercise of jurisdiction was valid, and Qatar’s application to the ICAO Council was admissible. This decision of the ICJ has brought forward two prominent issues in the ICAO dispute settlement mechanism, which are addressed hereunder.

Scope of Jurisdiction of the ICAO Council

One of the primary grounds of appeal in this case has been on the ICAO Council’s exercise of jurisdiction, which according to the appellants was beyond the scope of its authorization. Text of Article 84 clearly states that “If any disagreement between two or more contracting States relating to the interpretation or application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council.” Since the “countermeasures” taken by the appellants in this case against Qatar for the violation of Riyadh Agreements are under the broader domain of public international law, it is not a subject matter under the Chicago Convention, and therefore, the ICAO Council is argued to have no jurisdiction in this case. Thus, the question is how the ICAO council can decide the lawfulness of the countermeasures, as it is not competent to assess it holistically?

The ICJ has observed that “the prospect that a respondent would raise a defence based on countermeasures in a proceeding on the merit […] does not in and of itself have any effect on […] jurisdiction”. The Court referred to its finding in India v. Pakistan Case. However, Berman J. in his separate opinion mentions the need to understand the limits of ICAO Council’s jurisdiction and states that “the invocation of a broader legal defence cannot expand the Council’s competence”. The majority opinion denied such a finding and went by the argument that for reaching a proper decision on the disputes falling within its jurisdiction, the ICAO Council is entitled to examine certain issues falling outside the matter of civil aviation. Thus, the ICJ held that the integrity of the ICAO Council’s dispute settlement functions would not be lost simply because it examined the issues outside the scope of Chicago Convention for discharging its essential obligations under the Chicago Convention. Although it may appear that this is a rare instance where the Court has so clearly asserted the expansive approach of the adjudicatory body’s ratione materiae, it is nothing but the Court’s conformity with the recent jurisprudence it has raised. For example, in Nuclear Test Case, the Court observed that “an adjudicative body can make necessary findings to ensure its exercise of jurisdiction over the merits of the case”.

This debate on the limits of jurisdiction is not just found at the ICAO Council’s level but also at different other international adjudicatory bodies’ level. The WTO dispute settlement mechanism is one of the classic examples in this regard, wherein the questions have arisen as to whether the WTO Dispute Settlement Body (DSB) is having jurisdiction only with respect to covered agreements or can the DSB deal with public international law or domestic law issues whenever they are closely connected with the international trade law issues. In the Mexico Soft Drinks case, the Appellant Body observed that it is not on the WTO panels to decide on the non-WTO disputes, and thus, it cannot adjudicate an internationally wrongful act in the context of defence of countermeasures. However, as a general rule the WTO jurisprudence has tilted in favour of exercising the jurisdiction in environmental issues, public health aspects, personal laws etc while deciding the trade disputes. Though the WTO DSB has gone in favour of more inclusive jurisdiction, it has resulted in a serious crisis. This expansive approach is said to be one of the primary reasons for the United States blocking the appointments to the Appellate Body, and thereby, paralyzing a vibrant dispute settlement mechanism. Thus, the larger question here is whether such an expansive approach would put the principle of consent (of parties to the treaties) into a threat as it provides a back door entry for those issues that were either not negotiated or not agreed upon.

Negotiation under Article 84

The second major issue is relating to the precondition of negotiation before referring the dispute to the ICAO Council under Article 84 of the Chicago Convention. This precondition is supplemented by Article 2(g) of the ICAO Rules for the Settlement of Differences (ICAO Rules), which states that a party submitting a dispute to the ICAO Council must attach a memorial containing “a statement that negotiations to settle the disagreement had taken place between the parties but were not successful.” However, Qatar didn’t put forward a formal request for ‘negotiation’ to any of the appellants under Article 84, rather there were some general attempts made either by means of Qatar referring the disputes to third States and also seeking for consultation under the WTO regime or by virtue of the ICAO Council trying to allow negotiation between the parties after the dispute was referred to it. Moreover, Qatar also failed to comply with Article 2(g) of the ICAO Rules by not including the requisite statement in the memorial. Hence, the appellants argued that Qatar’s case was inadmissible.

Interestingly, the efforts made by Qatar, though not formal under Article 84, were held by both the ICAO Council and the ICJ to be sufficient to meet the requirement of negotiation in the context of circumstances involving appellants’ unwillingness to negotiate. Though the ICJ reiterated that Article 84 applies with regard to “only those disputes which cannot be settled through negotiation” and this precondition “must be satisfied to establish court’s jurisdiction”, it went by the lower threshold for satisfying this precondition. A genuine attempt for negotiation by the disputing party is said to be sufficient, and failure of negotiation is supposed to be understood as a lower threshold of “theoretical impossibility’ rather than a higher threshold of “no reasonable probability of further negotiation leading to a settlement”. On the issue of failure to comply with the requirement of Article 2(g) of the ICAO Rules, the ICJ referred to the part of Qatar’s application and memorial mentioning “A statement of attempted negotiations”, wherein Qatar blamed that the appellants did not permit any opportunity to negotiate on aviation restrictions. This statement along with the confirmation of the Secretary General that Qatar’s application complied in form with the requirements under Article 2 of the ICAO Rules was found to be sufficient by the ICJ in ruling in favour of Qatar.

This leads us to the question- when a treaty is specifically asking for negotiation as a specific mechanism, isn’t it imperative on the States to invoke it formally to arrive at an amicable settlement? Again when we draw parallel from the WTO dispute settlement, we can find that Article 4 of the Dispute Settlement Understanding (DSU) specifies the mandatory requirement of consultation between the disputing parties before invoking the jurisdiction of the WTO panels. This mandate has been for ensuring that the parties would get sufficient opportunity to discuss their concerns and reach a mutually acceptable solution. This mandate under Article 4 of the DSU is rigid, formal and indispensable, and it cannot be satisfied in an indirect way as Qatar is said to have complied with in the present case. Hence, the essence of such consultation under the DSU is that a party having any concern must notify the other party/ies concerned formally for consultation under Article 4 of the DSU by stipulating the specific provision/s involved under the WTO Agreements. Due to such a formalistic approach, several trade disputes end at this consultation stage itself as the parties understand the concerns expressed by each other through consultation. This shows the effectiveness of the consultation process, if followed under a formalistic approach.

Similar to the process of consultation, negotiation gives scope for parties to remove any misunderstanding by way of clarifying their concerns. Indeed, the ICJ in the present case had accepted the references to negotiation by Qatar, which were in bits and pieces without any one formalistic reference of negotiation under Article 84. This leads to the question that if the Court is accepting such a lower threshold for satisfying the precondition of negotiation, isn’t it impacting the purpose behind such a precondition? It appears that such a lower threshold of compliance would ignite distrust among the parties in the absence of direct communications, and thereby, fail to bring an understanding of the situation that the parties are undergoing. Hence, a more formalistic approach to negotiation, especially with its increased significance as an alternative dispute settlement mechanism, is required under Article 84 of the Chicago Convention to ensure amicable settlement of disputes.

* Professor of Law & Director – Centre for Aviation and Space Laws, The WB National University of Juridical Sciences, Sec. III, Salt Lake City, Kolkata.

** Member – Centre for Aviation and Space Laws, The WB National University of Juridical Sciences, Sec. III, Salt Lake City, Kolkata.

Centre for Aviation and Space Laws Volume 1

Responsibility for Activities in Outer Space

Danny Johansen*

Keywords: Article VI – Outer Space Treaty – Private Entities – State Responsibility –Ultra Vires

Outer space has always fascinated humanity, which continues to be so in the current day. Private entities are looking to outer space as never before with tourism flights(1), space resources extraction,(2) and even space beer.(3) As most of these activities are done in the interest of the private entities instead of the international community as a whole, debate on private activities in space has attained significance. Is space tourism just rich people playing around and destroying the environment?(4) Whether resource extraction on the moon is in conflict with the Outer Space Treaty?(5) These are just a few of the questions that have arisen in this context.

No matter what side one is on in this relevant debate, a fundamental and older question is; to what degree a state is responsible for the acts of private entities?

Outer Space Treaty

Article VI of the Outer Space Treaty(6) by the first look answers this question when it states that, state parties shall bear international responsibility for national activities, no matter whether it is being done by a state organ or by a private entity. It also points out that the state must authorize and supervise the activities of private players.

Article VI is quite a deviation from the normal customary rules of international law for state responsibility, which is found crystallized in the Articles on State Responsibility(7). Under the rules of the Articles on State Responsibility a state will be responsible for internationally wrongful acts if a conduct consists of an action or omission that is both attributable to the state, and is in conflict with an international obligation of the state.(8) If the act is conducted by a private entity, certain criteria must be fulfilled for the act to be attributable to the state.(9) The criteria vary but there must be some sort of connection between the state and the wrongful act of the private entity like the state authorizing or instructing a private entity to do such an act or the state acknowledging such an act as its own.

Attributability in the Articles on State Responsibility operates as a lower limit for fixing responsibility on any state. Private entities engaging in theft, murder or other offenses would face individual responsibility and state wouldn’t be responsible unless the action can be said to be under the authorization or instruction from the state (and thus attributable). When Article VI of the Outer Space Treaty attributes every activity in outer space to the state, the question would arise on the responsibility of states under the Outer Space Treaty for every tort or a crime committed by the private space entities.

Responsible for what?

Some scholars have pointed out that it can be claimed that the duty of the state can be confined to authorization and supervision.(10) Other scholars are arguing that Article VI attributes all actions, and thus responsibility for every action of a private entity is on the state.(11)

While discussing authorization for the actions by the private players, it has been argued that there has to be a lower limit so that an astronaut needing to brush his teeth does not require to ask the national authorization agency for permission.(12) The same can be said for what actions can be attributed to the state. Bin Cheng discussed that the responsibility could have a wide and a narrow interpretation. The narrow interpretation being that the state is responsible for its normal obligations under international law and would also be responsible for actions by private entities as if they were made by a state agency. The wide interpretation would be that the state is responsible for all actions of private entities.(13)

However, even the narrow interpretation of Bin Cheng still offers a broad range of activities that the state may be responsible for. Thus, a heavy burden of responsibility is imposed on the state, which seems to be undesirable. Also the requisite clarity on the authorization and responsibility of the state for private actions is found missing in these arguments.

Article VI does specifically mention that the actions must be in conformity with the Outer Space Treaty, and thus, it does seem obvious that at least any action in conflict with the Treaty would call upon responsibility. A follow-up question could then be: Is the state responsibility limited to authorization and supervision of private entities or does it stretch beyond to cover the breach committed by private entities? This matters in the situation where a state implements laws regulating private entities in outer space, and only authorizes activity in space in conformity with the Outer Space Treaty. If the private entity then goes against the authorization and commits a breach of the Outer Space Treaty, concerns would arise in fixing responsibility as it is unclear whether the state is directly responsible for the breach or for not preventing the breach by the private entity.

Article VI is famously a compromise between the ideology of the USA and the Soviet Union, where one party wanted free access to space for private entities, and the other wanted to only allow the states to carryon activities in outer space.(14) So it is probably safe to say that the intention was to ensure that the states took the activities of private entities in outer space serious, and that they therefore were directly responsible for the action. However, under the changed circumstances arising out of the increased private space activities, it stands as a problematic proposition.

Application of Public International Law

Article III of the Outer Space Treaty states that all space activities must be in conformity with the public international law. Many states have applied this in their authorization process stating that the activity must not conflict with their international obligations.(15)  Sensible as it may be that international law applies to space; however, this is where we find the aggravation of the problem. Many criminal activities performed by private entities may fall within the ambit of breach of international law upon attribution to the state.

Many different situations could arise. Would every possible murder on the moon be classified as a state assassination? Would theft in a space hotel be attributed to the state? If this would be the primary interpretation of Article VI of the Outer Space Treaty, most states would probably halt private entities from going into outer space. Such a harsh interpretation would confine the humanity to Earth, which is unwise from any perspective.

Solution?

What then would be the minimum threshold for attributing private activities to the state? The Draft Articles on State Responsibility does contain the concept of “Ultra Vires”.(16) When a state agent or organ exceeds authority, the state shall still be held responsible for the actions, if the agent acts in the capacity it has been appointed. So, if an agent has been empowered to exercise governmental authority, the state has responsibility, unless it is clearly outside the function the agent is entrusted. This is of course not directly applicable to the situation at hand as we are dealing with private entities. The essence of the principle could however be used. When an authorized private entity performs activities in outer space, it can be said to wield some kind of state authority, and all of its actions under authorization can be attributed to the state.

It could then be said that if the private entity acts outside the scope of the authorization it should be examined if the entity at least still acted within the capacity of the authorization. This should at least sort out many of the actions done entirely in a private capacity, like for example, murder, theft, extortion etc. Whereas the actions in violation of essential principles of the space treaties, for example, an action contrary to the non-appropriation principle, using nuclear weapons or weapons of mass destruction, contaminating the outer space and celestial bodies and such, would trust responsibility upon the state. Thus, the use of the principle of Ultra Vires would ensure a much needed balance in the application of responsibility norms for private space activities.

References:

* Ph.D. Fellow, Legal Institute, University of Southern Denmark.

(1) Space.com, ‘Space Tourism’ available at
<https://www.space.com/topics/space-tourism> last visited 28 November 2021.

(2) Mike Wall, ‘Trump signs executive order to support moon mining, tap asteroid resources’, available at
<https://www.space.com/trump-moon-mining-space-resources-executive-order.html> last visited 28 November 2021.

(3) Hanneke Weitering, ‘Space beer, anyone? Hops flying on SpaceX’s private astronaut mission Inspiration4 will be auctioned for charity’, available at
<https://www.space.com/inspiration4-space-beer-hops-auction> last visited 28 November 2021.

(4) Tereza Pultarova, ‘The rise of space tourism could affect Earth’s climate in unforeseen ways, scientists worry’, available at
<https://www.space.com/environmental-impact-space-tourism-flights> last visited 28 November 2021.

(5) Brooks Hays, ‘New U.S. space mining law may violate international treaty’, available at
<https://www.upi.com/Science_News/2015/11/27/New-US-space-mining-law-may-violate-international-treaty/8751448634436/> last visited 28 November 2021.

(6) The 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)

(7) Articles on Responsibility of States for Internationally Wrongful Acts (ASR), 2001.

(8)ASR, Art. 1

(9) ASR, Art. 8 – 11

(10) The Max Planck Encyclopedias of International Law, ‘Outer Space, Liability for Damage’, Pedrazzi, Marco, 2008, Para 2.

(11) For example, Ibid, Francis Lyall & Paul B. Larsen, Space Law: A Treatise (Burlington: Ashgate Pub. Limited, 2009) p. 60.

(12) Testimony of Laura Montgomery Ground Based Space Matters Before the Senate Committee on Commerce, Science, and Transportation Subcommittee on Space, Science and Competitiveness, Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space. May 23, 2017, Russell Senate Office Building. p. 5.

(13) Bin Cheng, Studies in international space law (Oxford: Clarendon, 1997) pp. 633 & 634.

(14) Frans G. Von der Dunk, National Space Legislation in Europe: Issues of Authorisation of Private Space Activities in the Light of Developments in European Space Cooperation (Netherlands: Brill, 2011) p. 3.

(15) Stephan Hobe et al., Cologne Commentary on Space Law – Outer Space Treaty: КёльнскийКомментарийККосмическомуПраву – ДоговорПоКосмосу (Berlin: Berliner Wissenschafts-Verlag, 2017) p. 417.

(16) ASR Art. 7.

Centre for Aviation and Space Laws Volume 1

MARS4 Metaverse, NFTs, and the Future of Simulated Space Property Rights

Dr. Shouvik Kumar Guha*

Keywords:   Blockchain – Cryptocurrency – Outer space – Property rights

The usage of outer space resources is currently subjected to the restrictions imposed by international instruments like the Outer Space Treaty, 1967[1]. In particular, Article II prohibits national appropriation of the outer space or any celestial body by any means including use and occupation, which ensures that no State can lay claim to property rights to the space or such bodies, nor prevent any other State from using the same. In addition, Article I of the Treaty addresses the exploration and use of the outer space along with right of access, Article VI requires every State to authorize and supervise all activities by its nationals in the outer space and shoulder responsibility for the same, and Articles IX Article XI mandates the States to keep the public, other States, the global scientific community, and the UN Secretary General informed of all their space-related activities, especially the ones that may interfere with peaceful use of space by other States. The application of these provisions towards the development of a property rights framework for the outer space is fraught with debates. Instances of such debates include questions like whether the principle of non-appropriation referred to in the Treaty may translate into restrictions if not outright prohibition of ownership of property rights in space, whether provisions like Article II apply to only space or also the natural resources occurring in it, whether such provisions impose any obligation on the private parties too apart from States, and whether the States themselves being deprived of appropriation power, can in reality validate any property rights claimed by their nationals in space.[2] In addition to the Treaty, the Moon Agreement, 1979[3] and recent initiatives like the Artemis Accords also bear relevance to this evolving discussion on property rights and resource usage in outer space.

Technology seems now all set to add further layers of complexity to this already complicated debate in international law. The case of the MARS4 project serves as a prime example. The blockchain project involves creating a simulated metaverse ecosystem that has been modeled on the planet Mars (data obtained from the 3D Martian Model available in the NASA database).[4] The mars4.me virtual reality platform will allow the users to experience identical planetary conditions in the metaverse. They will also be able to obtain terrestrial rights over the simulated Martian property and develop, terraform and customize such property at their discretion. Further, the owners of such property can mint exclusive Non-Fungible Tokens or NFTs that will draw upon the value of the property owned by them in the metaverse; ownership of such Mars Land NFTs (currently 99888 pieces in existence) will also generate a stream of passive income for them within the metaverse.[5] The income will be in the form of MARS$, the Ethereum cryptocurrency (Standard E) network-based currency that can in turn be used for trading and minting more NFTs within the metaverse; further, as the demand for participation in the project increases, so will the demand for NFTs and by extension, demand for this currency, which can then be traded in exchange for conventional currencies in the real world. These NFTs are therefore meant to serve both as evidence of ownership of virtual land, as well as a means of investment within the MARS4 platform. The currency is already available for purchase on cryptocurrency exchanges like SushiSwap and Bittrex, and the NFTs are going to be available for purchase from January 2022 onward.

The twin tokenomics and token redistribution (MARS$ and Mars Land NFTs) and the principles of gamification (application of elements of game design and game principles of task-based rewards to non-game scenarios including systems, organizations and services) collectively form the distinct characteristics of this entire project.[6] The project also has supposed long-term goals such as to ensure that the NFT-owners via a decentralized autonomous organization will be able to eventually control the decision-making process for the entire virtual platform, and that a foundation is established from the proceeds of the project, which will have the resources to fund space-related startups in the initial stage.

While the NFT boom is currently being perceived all across the global financial market, there are several emerging legal concerns surrounding their use[7], including the lack of accompanying intellectual property rights, the risks involved in the trading of NFTs and fractionalized NFTs that are yet to receive regulatory global recognition as valid securities (registered or otherwise), the possibility of application of anti-money laundering regulations to NFT transactions and resulting lawsuits[8], issues related to privacy and data safeguarding, possibility of reneging on royalty payments by shifting the NFT to different jurisdiction/market via digi-wallets, providing for estate and sequel planning for NFTs based on domestic laws, taxation concerns and many others. All of these regulatory concerns undoubtedly hold pertinence with regard to the MARS4 project too, as do the respective stances adopted by the multiple national regimes about applied blockchain technology and cryptocurrency.

However, this post is meant to consider the status of the project and the property rights being offered by it in the context of the outer space and celestial bodies and related property regime as envisaged under international law. While Mars is a celestial body that should fall within the ambit of the non-appropriation principle[9], the simulated version of the planet in the form of virtual reality is arguably located on Earth itself. Given the oft-vague provisions of the Outer Space Treaty insofar as even traditional property rights in outer space are concerned, and the lack of popular ratification of other relevant existing instruments like the Moon Agreement, the rights to own land in celestial bodies and to use their natural resources are contentious at best at this stage. While the power to access, use, and dispose of resources occurring in space and such bodies is not notionally against the principles that the Outer Space Treaty stands for, it is a matter of fact that the Treaty had never been meant to usher in a stable property rights regime.[10] With technological advancements disrupting even well-established legal regimes across multiple spheres, it is unsurprising that the existing space law regime appears to be considerably unprepared to deal with property rights leveraging space-based resources like the MARS4 project is purporting to do. While the broad acceptance of the Outer Space Treaty principles by State Parties have led to creation of customary law and practices[11], it becomes increasingly clear with developments like this project that predictable property rights in or related to outer space is far in the making at this juncture of international law. However, one must also acknowledge that through persistent efforts, occasional breakthroughs have been possible in the past such as the recognition of the first reasonable user principle in relation to geostationary orbit usage and according protection to such users from subsequent harmful interference via regulations of the International Telecommunications Union.

In addition, the debate as to whether virtual reality based on space objects and resources should at all be governed under the umbrella of outer space law is very much a continuing one. One may even argue that the existence of the MARS4 project does not in any way preclude other private entities establishing identical or similar metaverses about the same or other celestial bodies (assuming they get the necessary licenses to use the relevant celestial data and models) –this would make such property rights and their underlying value at least partially non-exclusive and therefore render their enjoyment non-adverse to concepts such as non-appropriation and the common heritage of mankind. While the days of Robert C. Coles and his Interplanetary Development Corporation, or Dennis Hope and his Lunar Embassy Commission selling land rights on the moon are now long past, those instances clearly taught us valuable lessons about the ambiguity and lack of predictability of the space law regime dealing with individual claims of ownership of the outer space and celestial bodies. One hopes that armed with such lessons, the legal regime applicable to the governance of outer space will proceed to evolve in an organic manner and transform possibly disruptive technological growth as evidenced by the MARS4 project into events enabling such evolution and growth.

References:

* Assistant Professor (Senior Scale), The West Bengal National University of Juridical Sciences

[1] 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.

[2] Paul Whitfield-Jones, ‘One Small Step for Property Rights in Outer Space?’, available at <https://www.mayerbrown.com/en/perspectives-events/publications/2020/05/one-small-step-for-property-rights-in-outer-space&gt; last visited 26 October 2021.

[3] The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979.

[4] Adria Parcerisas Albés, ‘MARS4: First NFT Revenue Generation in the Universe’, available at <https://medium.datadriveninvestor.com/mars4-first-nft-revenue-generation-in-the-universe-668b26a481db&gt; last visited 26 October 2021.

[5] Id.

[6] Prabhjote Gill, ‘This Ethereum-based metaverse is letting crypto fans own land on the Red Planet, even though international space laws would disagree’, available at <https://www.businessinsider.in/investment/news/crypto-fans-can-now-own-land-on-mars-even-though-international-space-laws-would-disagree/articleshow/87188733.cms&gt; last visited 26 October 2021.

[7] OpenGeeksLab, ‘9 Legal Issues That Stand Behind NFTs’, available at <https://opengeekslab.com/blog/legal-issues-nfts/&gt; last visited on 26 October 2021.

[8] Mention may be in this instance of the Dapper Labs Complaint in New York, available at <https://www.scribd.com/document/507902741/Dapper-Labs-Complaint>last visited 26 October 2021.

[9] Thomas E. Hart, ‘Jurisdiction on Mars’, available at <https://journals.library.columbia.edu/index.php/stlr/blog/view/298&gt; last visited 26 October 2021.

[10] Kurt Anderson Baca, ‘Property Rights in Outer Space’, Journal of Air Law and Commerce, Volume 58, Issue 4, 1993, pp. 1041-1085.

[11] Alan Wasser, ‘Space Settlements, Property Rights, and International Law: Could a Lunar Settlement Claim the Lunar Real Estate It Needs to Survive?’, Journal of Air Law and Commerce, Volume 73, Issue 1, 2008, pp. 37-73.

Centre for Aviation and Space Laws Volume 1

Space Travel: Select Legal Issues

 G. S. Sachdeva*

Key words: Dennis Tito – G-factor – Planetary habitation – Pollution – Volenti non fit injuria

Branson and Bezos, in maiden commercial flights of their respective enterprises, Virgin Galactic and Blue Origin, have ushered in an era of commercial space travel, transportation and tourism. This development offers an opportunity to tariff-paying passengers for a trip of thrill, pleasure, recreation or entertainment. Much of the world clapped at the milestones in pride, exultation and enthusiasm but ‘two’ swallows do not make spring. In order to become a viable operational transportation system with public offer of tariffed-travel service open to all, without demur or discrimination, and with competitive options and choices, space carriers would need to introduce regular space flights with fixed time-schedules. Occasional charters or “Inspiration” flights do not qualify as commercial operations or public service. Further, assured standards of passenger safety are another public concern and need institutionalisation of an integrated system of space traffic management and space situational environment. Thus, it seems a tall order, which as yet fails to fit, though implementable in the near future.

Further, the passengers of these two trips are not the first commercial space travellers. In fact, the very first fare-paying space-passenger was Dennis Tito in 2001, who believably, paid millions of dollars for a genuine space trip arranged by Roscosmos and stayed at the Soviet quarters of ISS for one week. Nevertheless, this oncoming seems obvious and imminent. Even, the cost of ticket per passenger is likely to reduce progressively with competition from Boeing, Space X, Orion Span, Bigelow and others. Hopefully, the tariff may become an economical bargain to fit within common person’s finances and dream.

Commercial operational travel in space may soon expand to space tourism with orbiting resorts for an exhilarating experience, hospitalityon celestial bodies for ‘stay-cationing’ for joy and ego-boost and planetary habitations[1] for permanent emigration. The future scenario limned here is no oneiric vision but a millennial reality. Interested tourists, space enthusiasts and one-way emigrees have already queued up for booking and are only waiting for the opportune time and regular space travel to become operational.

The space carriers are advertising a life-time experience full of excitement and unique pleasures. The promised thrills relate to floating in micro-gravity, honey-mooning in space, a view of the mother earth in cosmic perspective, a spectacle of universe in lumiere splendour and many more. With the anticipation and elation of space travel, a passenger may ignore some attendant problems and subsequent hassles which should be clearly understood before the actual travel. Select responsibilities are discussed here.

A Caveat for Space Passenger

First, bodily health and mental fitness are important. Space travellers, beware! Space travel is no bullock-cart ride nor is the space capsule commodious enough for desired comfort. Therefore, space travel requires the highest standards of physique, mental agility and psychological preparedness for a unique yet a hard trip of endurance. Space travel involves inconvenience of cramped physical spaces with claustrophobic environment which may be difficult to withstand. Further, space travel entails spiralling effect, high velocity impact and repercussions of high G-factor which may cause bodily discomfort, pain in muscles, blood-rushing, etc. Apart from headache or giddiness, vomiting may also occur.[2]

In order to get used to such inconvenient and never-experienced conditions, one may require training in simulator-capsule creating launch parameters and zero-gravity environment for practice in floating techniques and to get ‘habitualised’ to unaccustomed effects of space travel. In the past, a few trainee astronauts have been declared unfit for medical reasons. Similar rejection and refusal for space flight, in medical screening or during training, should be no surprise for fare-paying passengers, nor constitute a cause for litigation.

Second important aspect of personal responsibility pertains to scrutiny of contract for space travel for liability clauses in the event of an injury to or death of the passenger. In such risky and hazardous flights, the commercial carriers tend to contract out most of their liability under legal maxims of volenti non fit injuria or non cogit ad impossibilia or abundanti cautela, and others. The respective meanings of these are that in voluntary acceptance of the known risk, injury is not admissible; that it was humanly impossible to avert the event; that enough care and caution had been taken to avoid the accident. This may need consultation from a lawyer whose professional examination and advice will be worth the effort and expenditure. However, standardisation of the space travel contract may be expected on the lines of the Warsaw Convention, 1929[3], relating to commercial aviation.

Third caveat is that the space passenger would find it well-nigh impossible to gather factual evidence of the accident or negligence of the carrier for the plaint. And in law, it is important to establish a fault, neglect or failing to be entitled to a claim of compensation. In fast moving machines and events, even eye witnesses may falter in recapitulating the precise sequence of events. More so, wreckage is almost always protected and secured by investigation authorities to obviate tampering by vested interests. Therefore, the space contract should include the evidentiary principle of res ipsa loquitur to shift the burden for fool-proof defence on the carrier. This is now an established doctrine in Air Law.

A Word of Caution

The excitement of oncoming space travel is genuine and the operators claim of long queues for sub-orbital flights.Reliable projections estimate that the number of commercial flights may increase from 10-a-year to about 360 annually in a decade. Possibly, with increasing number of space-enthusiasts and competing carriers, these expectations may be surpassed much sooner.

However, scientists subdue this exultation with a serious woe of pollution of the atmosphere by burnt solid fuels from rocket exhausts. Their despondence increases because hybrid fuels, liquid and solid, have also revealed no major drop in the pollution level. The emitted particles, howsoever, small in size and light in weight, tend to stay put, almost in situ, for long periods. In the 1990’s, research was conducted, by Rosenlof with teams from NOAA, NASA and the US Air Force, on pollution by Shuttle launches. Studies revealed presence of chlorine emissions from launch rockets and their chemical reaction showed adverse influence on ozone reserves. Regrettably, there has not been significant break-through in safe fuels, and rockets generating ozone-damaging substances are still in use as work-horses.

It is conceded that the studies conducted so far have been preliminary in scope, limited in time and localised over Florida necessitating more empirical data collection and analysis. Further no such studies seem to have been undertaken by Russia or China, at least not in public domain.Nevertheless, existing results indicate that atmosphere and stratosphere are undergoing alteration in their character and content yielding strong hints at adverse changes in global climate and weather patterns. As a result, the eco-system of total atmosphere seems vulnerable and at risk as revealed by ground reality.

World Meteorological Organisation has already observed widening of the ozone holes and indicated at the possibility of creating new such holes near space-ports.It has, accordingly, declared rockets as a potential concern and future threat to the well-being of mankind. This calls for dedicated research on less-polluting fuel substitutes. May be, tri-propellant engines using kerosene or air-breathing engines can lead to a solution. But engineering history shows that these objectives require incremental development through in-service evolution rather than quantum leaps in technology.

The zeal for the novelty of space-trip and ego-satisfaction at the experience is causing rush for bookings. It is apprehended that competing space carriers, in their effort to harvest early profits, may abnormally escalate the number of launches which could adversely affect the ozone layer. Thus, there is reason for “eco-anxiety” with a shaky validation for the causecelebreof space travel and tourism. Possibly, the economic benefits and multiplier effect of space travel and space hospitality may turn out to be unconscionably high in terms of environmental costs and equally unpredictable in consequences for humanity.

Although, space travel may have to be held accountable for the consequential pollution, yet this development cannot be stalled. We have to find a way to co-exist. Perhaps, one option could be to restrict and regulate launches for commercial space travel in the current decade; and concurrently accelerate research for greater clarity on the flagged adverse impact. It will be wise to act in time before it is too late and beyond redemption because humanity deserves, ergaomnes, clean atmosphere and space environment.

References:

* Adjunct Professor, NALSAR University of Law, Hyderabad

[1] For example, Woerner’s Moon Colony or the Mars Village.

[2] This feeling has been experienced by astronauts even in repeated flights.

[3] The Warsaw Convention, 1929 has since been superseded by the Montreal Convention, 1999.

Centre for Aviation and Space Laws Volume 1

Is there an Indigenous Right to Space?

Valmaine Toki*

Key Words: Space – Treaty rights – United Nations Declaration on the Rights of Indigenous Peoples – World view

Introduction

Space is often hailed as the final frontier to be conquered. The primary instrument that governs this desire is the Artemis Accords, announced in October 2020 by NASA, the National Aeronautics and Space Administration,[1] an independent American agency responsible for the civilian space program, aeronautics and space research.

The Artemis Accords is an agreement with international partners and commercial entities for lunar exploration and beyond, describing “a shared vision for principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science, and commercial activities for all humanity to enjoy.”[2] While the purpose of the Artemis Accords is to ‘establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program’, the Accords is silent on whether this extends to Indigenous peoples.

The Artemis Accords envisages the landing of the first woman on the Moon by 2024. With this in mind, Professor Melissa de Zwart recently asked the questions;[3]

  • “What are the laws that will regulate the sustained presence of humans on the Moon and their use of resources?
  • How will competing uses of the Moon be governed and how can international law assist with managing any resulting conflicts or tensions?”

This raises two further questions:

  • Can the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as an instrument of international law assist to manage the fundamental rights including those that extend to celestial bodies?
  • Does the Indigenous philosophy, or world view, support such a right?

To answer these questions this short piece will review the fundamental rights articulated in the UNDRIP before providing a short narrative on Indigenous world views and treaty rights as they apply to Māori.

United Nations Declaration on the Rights of Indigenous Peoples

The fundamental rights for Indigenous Peoples are recognised and articulated in the UNDRIP. The key right of self-determination is captured in Article 3.

The UNDRIP was adopted by the UN General Assembly with a majority of 143 states in favour in September 2007. Even if the UNDRIP is soft law and not legally binding until incorporated into domestic legislation, some jurisdictions have included it in their constitution. For instance, Bolivia and Congo.[4]

In addition, some jurisdictions have taken steps to promulgate enactments that promote the UNDRIP. For instance, the Canadian government has stated that, “Government of Canada must take all measures necessary to ensure that the laws of Canada are consistent with the UNDRIP, and must prepare and implement an action plan to achieve the objectives of the Declaration.” This is reflected in the Statutes of Canada 2021, Bill C-15, a framework respecting the UN Declaration on the Rights of Indigenous Peoples, assented to on June 21, 2021.

In the absence of direct incorporation by a statute there are different methods of recognising international human rights instruments through recourse to administrative law. The (outdated) concept of legitimate expectation in Australia and a mandatory relevant consideration in New Zealand, have been employed to treat unincorporated international obligations, such as the UNDRIP, as considerations for the decision-maker. Also, the presumption of consistency, a common law principle of statutory interpretation, recognises that the Parliament is presumed not to legislate intentionally in breach of its obligations.[5]

The relevant obligation is found in Article 25 of the UNDRIP:

“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”

Read together with the key right of self-determination, irrespective of national adoption of UNDRIP, this clearly provides the right for Indigenous peoples to maintain and strengthen their distinctive spiritual relationships with their traditionally owned or otherwise occupied and used lands, territories and other resources. The inclusion of the term “otherwise” implicitly extends to land and territories within the celestial or non-earthly realm.

Indigenous Philosophy – World View

Aotearoa – New Zealand

Although from different global regions Indigenous peoples share commonalities regarding their ‘world view’. For the Māori, Indigenous peoples in Aotearoa, New Zealand, their world view is premised on cosmology. This cosmology includes various realms from which life is derived. Within these realms is Io Matua Kore where all celestial entities exist and originate. The steps through these realms assist to govern and understand the relationship between the animate and the inanimate.

For instance, within this cosmology is the separation of Ranginui and Papatūānuku that resulted in the developing of different ecosystems.[6] This separation was all part of the whakapapa relating the gods, the natural world and humans. Whakapapa connects Māori to the environment.[7] Within this philosophy is understanding that these elements are our relations and the concept of whanaungatanga or relatedness extends this obligation to non-human or inanimate objects.[8] Customs were also developed premised on this cosmology. Although there was no concept of ownership per se the obligation to look after the resource remained.[9] Resources had their own mauri or life-force and were perceived as treasures that required protection.[10] The underpinning doctrine was Tikanga Māori.

Tikanga Māori within the celestial realm denotes this environment as inter related. The mātauranga or traditional knowledge of this celestial realm where the movements of constellations, phases of the moon, rising of the stars were well known and assisted with the precise understanding of seasons and the well-known Māori navigation through the Pacific.[11] Kauwaerunga refers to the celestial knowledge that is linked to the cosmology and creation stories.[12] This knowledge was evident before colonisation and pivotal to Tikanga Māori and Te Ao Māori or a Māori world view from which denoted the relationships, framework and guidance for rights, responsibilities and duties between the animate and inanimate, with achieving balance as the aim.[13]

Treaty of Waitangi – Treaty Right

In Aotearoa, New Zealand, Māori entered into a Treaty of Waitangi (Treaty) with the Crown. The Treaty is recognised as a constitutional canon within the unwritten constitution of Aotearoa, New Zealand and a document of extreme importance as noted by the judiciary.[14]

Article 2 of the Treaty’s English text guarantees certain rights to Māori including a right to all taonga or treasures.[15] This includes their mātauranga or traditional knowledge of the celestial realm, knowledge upon which practical activities such as planting gardens and fishing were based. The traditional knowledge associated with the celestial bodies enabled the remarkable and renown navigation of the Pacific.

In sum, the rights available are:

(a)      First, the international instrument, UNDRIP, that recognises the right for Indigenous peoples, such as Māori, to maintain and strengthen their distinctive spiritual relationships with their traditionally owned or “otherwise” occupied and used lands, territories and other resources, such as those within the celestial realm in Article 25 of the UNDRIP,

(b)     Secondly, the underpinning tikanga or worldview that links Māori indisputably to the celestial realm., and

(c)      Thirdly, a domestic Treaty right, for Māori through the rights guaranteed under the Treaty including the rights to their taonga, their mātauranga or traditional knowledge of the celestial realm.

These provide an irrefutable right to space for Indigenous peoples and the celestial realm. Similarly, in recognition of the importance of Indigenous peoples’ rights, world-view and any relevant Treaty rights, scholars have urged the Canadian Space Agency to include Indigenous peoples in this project.[16] Understanding the historical adverse impacts of colonisation on Indigenous peoples this Canadian pre-emptive approach is welcomed to avoid any further marginalisation or alienation for Indigenous peoples to their taonga. To not recognise these rights perpetuates the outdated approach of colonisation. To continue to offer and consider economic or commercial gains without Indigenous participation further exacerbates the adverse effect of colonisation.

Conclusion

The Artemis Accords refers to creating “a safe and transparent environment which facilitates exploration, science, and commercial activities for all humanity to enjoy.” In addition the purpose of the Artemis Accords is to “establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program”. Aotearoa, New Zealand has offered support for the UNDRIP and Aotearoa, New Zealand has also signed the Artemis Accords earlier this year in May. Thus, Māori are entitled to the safety promoted by the Accords and the ability to contribute to the ‘common vision’ and ‘set of principles’.

With the race to conquer space well and truly afoot, it is time to raise the issue of where Indigenous rights are accommodated within this race. The Artemis Accords is silent as to Indigenous rights, however key international instruments, doctrine and domestic treaties recognize that a “right to celestial bodies” is evident. As the UNDRIP is an international instrument, this could assist in managing any conflict and resolve any opposing interests or tensions that other nation States may have regarding recognizing these fundamental rights.

References

* Professor of Law; Ngatiwai Nga Puhi, Former Expert Member UN Permanent Forum on Indigenous Issues Te Piringa – Faculty of Law, University of Waikato, New Zealand. Email: valmaine.toki@waikato.ac.nz

[1] NASA was established in 1958, replacing the National Advisory Committee for Aeronautics.

[2] Artemis Accords, section 1.

[3] Professor Melissa de Zwart ‘Boots on the Moon: Managing the return to the Moon’ (2021) Abstract, Virtual Outer Space Law Conference, University of Waikati 3 September 2021.

[4] See Toki, V. (2011) Indigenous Rights, Hollow Rights (WLR) v 19, issue 2.

[5] Ibid.

[6] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221.

[7] Ibid.

[8] Ibid.

[9] Toki, V (2007) ‘Chief Executive of the Ministry of Agriculture and Forestry v Waikato Regional Council’ (RMB) September, 73.

[10] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221.

[11] Harris, Matamua, Smith Kerr and Waaka ‘A review of Māori Astronomy in Aotearoa – New Zealand Journal of Astronomical History and Heritage 16 (3) 325 – 336 (2013) <http://www.narit.or.th/files/JAHH/2013JAHHvol16/2013JAHH…16..325H.pdf>

[12] Ibid.

[13] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221. See also Toki, V. (2018) Indigenous Rights, Self-Determination and Criminal Justice (Routledge, Oxon).

[14] Toki, V. (2018) Indigenous Rights, Self-Determination and Criminal Justice (Routledge, Oxon).

[15] Ibid.

[16] Hilding Neilsonand Elena E. ĆirkovićIndigenous rights, peoples, and space exploration: A response to the Canadian Space Agency (CSA) Consulting Canadians on a framework for future space exploration activities <arXiv:2104.07118v1>

Centre for Aviation and Space Laws Volume 1

Evolving Customary Law in Outer Space Frontier Settlements

Jennifer A. Brobst*

Key Words:  natural law – human nature – frontier settlement– outer space– international customary law

International customary law forms the basis of many international agreements. However, it should be uncontested that there is, as yet, no crystallization of international customary space law. Customary law takes generations to develop through cultural negotiation and the development of practice and custom accepted as law. [1] Laws and practices addressing space exploration and the frontiers of the cosmos are simply too recent. Should the human species survive to enable deep space exploration and frontier settlement beyond Earth, humanity will have an opportunity to develop new customary laws with the added benefit of the accumulated knowledge of human history and modern technology. This diverse human record of invention, achievement and strife was not available to the men and women on the frontiers exploring planet Earth in our previous history of expansion.

While international and national space law currently dominate discussions of what legal and social structures are best for humanity in outer space, such a focus is inherently limited to functional considerations of how to enter orbital space safely. For guidance on human exploration and settlement in the farther reaches of space, what is needed is a more inclusive and informed understanding of human nature. Modern conceptions of natural law, informed by social science research, may be helpful to move beyond the constraints of narrow commercial and governmental interests.

International Law in Orbital Space

In orbital and sub-orbital space, when the technological capacity of space exploration was more limited, the aspirational international agreements to engage in peaceful uses and cooperation in space were easily supported among nations. However, with the growing reality of both governmental and private commercial entry into orbital space, those ideals are undermined by existing suspicions and competition among state and private actors on Earth.

Outer space is jurisdictionally stateless under international law, with multiple resolutions adopted by members of the UN General Assembly to prevent an arms race in outer space:  “Reaffirming the will of all States that the exploration and use of outer space, including the Moon and other celestial bodies, shall be for peaceful purposes and shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development.” [2]However, “will” is not a mandate, and the General Counsel of the United States Department of Defense has asserted that:

None of [the outer space treaties] has any specific provision that indicates whether the parties intended that the agreement apply in wartime. There appears to be a strong argument that the principle of noninterference established by these agreements is inconsistent with a state of hostilities, at least where the systems concerned are of such high military value that there is a strong military imperative for the adversary to be free to interfere with them, even to the extent of destroying the satellites in the system. [3]

If matters of distrust on Earth have not been resolved between nations, why should such nations agree to different terms in a new space frontier that is equally, if not more, perilous? International law is imbued with concerns related to distrust and the potential for conflict.

An additional criticism of use of international law in space is that such agreements not only reflect the dominant voices of the first nations in space, but that they are predominantly Western and disregard non-Western perspectives and cultural strengths.[4] This is demonstrated by the tacit unwillingness of nations consistently to abide by the principles of treaties, declarations, and resolutions which they may have signed and the lack of clear mechanisms of enforcement. [5] Arguably, international customary law has been a product of a largely Western, colonial, and capitalist interests. A combined functionalist and humanitarian focus in space law would do well to remember this history.

Natural Law Among the Stars

         If the legal structures promoted by international efforts in space appear to be products of capitalist conquest, it is no surprise. Satellite use, mining celestial bodies, space tourism, and achieving scientific and technological advancements in space for use on Earth all appeal to a profit motive, which is not a problem in itself. If humanity seeks to achieve competitive gains, then perhaps this is simply part of human nature. Every large civilization, past or present, Western or not, has engaged in conquest and social disruption throughout human history. Then why do the outer space treaties and national space initiatives repeatedly speak of peaceful uses? The Artemis Accords, for example, seeking international and civil cooperation “for peaceful purposes” in the exploration of the Moon, Mars, Comets, and Asteroids, are currently embraced by 12 countries – Australia, Brazil, Canada, Italy, Japan, Luxembourg, New Zealand, the Republic of Korea, Ukraine, the United Arab Emirates, the United Kingdom, and the United States.

  Natural law, granted a Western political and philosophical concept, provides a framework to answer this question. Grotius, the purported father of international law, professed in 1670, a time of conquest and war, that nation states needed to create a set of unifying, universal principles “out of the chaos of lawless and unreasoning strife.” [6] The unifying growth of human civilizations is explained through natural law as humanity’s observance and attempted replication of order and harmony in the universe within human social structures. [7]That is, human nature seeks to create order. Applications of international law to  orbital space law, such as enterprises on the International Space Station or Moon landings, are tethered to an understanding of ourselves on Earth and what enforced order is needed. But would this be the case for human settlement in the frontiers of outer space far beyond Earth? Would international law as we know it effectively guide future human civilizations if it is a product of conquest and cooperation on Earth alone?  This is unlikely given the inscrutable nature of what is to come. The human species itself, however, is not an unknown factor, for it has not biologically evolved other than in minute physical ways for millennia and may retain key aspects of its social nature for many more millennia.

So who are we? Natural law theorists of the past, such as Rousseau and Locke, were all Western men who posited that, as a matter of reason within human nature, our species is inherently interested in survival and therefore will engage in violent self-defense.[8] Concepts of liberty and equality underpinning the nation states of the West were intended to create a utilitarian social compact of peace and cooperation that supported human survival as a society. However, in practice many were subjugated and enslaved to ensure the success of a select segment of society, colonial, male, and affluent, a reality both justified and criticized by international customary law. [9] Despite its apparent manipulation, what the natural law framework continues to provide is a recognition that there may be commonalities in our single human species across cultural, class, racial and gender identities that would potentially connect and unify us.  While current political ideals may never be universal, if seen as imperialist or too narrow, today we have the benefit of modern understandings of psychology, anthropology, and human biology to help us better understand human nature and what makes us thrive together as individuals in society.

How Humans May Thrive in Outer Space

         Both social and evolutionary anthropologists put forth that humanity builds its greatest trust within the family structure, in part because the human species has such a long period of childhood development. [10]However, family structures vary, and strict gender-based roles in society, based on assumed biological differences, have been more likely to emerge when women have had little control over reproduction. Positive law is often unneeded in the day-to-day practices of individuals in family life and small societies, where trust, cultural familiarity, and affection may lead to cooperation and negotiation. For example, even in times of conquest, colonial powers more often left alone matters of family law, which were deemed more inherently stable than matters of commercial law and trade. [11]Therefore, while an interest in survival and self-defense are shared in natural law, arguably so are a duty of care and an appreciation for generosity and affection, a factor often left out by early natural law theorists. Also, an interest in creativity, imagination, and innovation are indelibly human, and would need support to sustain humans in an isolated outer space frontier.

Far into the future, impositions of current international law, largely Earth-based, will have little to say regarding how human settlement should survive as a society. If human settlements in outer space survive, and even thrive, it will not be due to complex, restrictive legal structures, but to the unwritten natural law of human nature which is mutually cooperative and supportive in smaller societies and family-based groups. Indeed, in contrast to much of the natural law philosophy of the past and its lack of mention in international space law, empirical study has shown that healthy emotions derived from close human relationships “appear to be among the most stable, fundamental features of human nature.” [10] As new customary law emerges in outer space settlements, the natural risk of human conflict should be tempered by the human ability to understand itself and what it needs.  As Sun Tzu stated 2,500 years ago, “[t]he art of war teaches us to rely not on the likelihood of the enemy’s not coming, but on our own readiness to receive him,” but in this same work he acknowledged that conflict is meant to sustain peace and that soldiers approaching home will be more likely to leave the ranks early to see their loved ones. [11]

References:

*Associate Professor of Law, Southern Illinois University School of Law, Carbondale. UNITED STATES OF AMERICA.

[1] H.W.A. Thirlway, International Customary Law and Codification: An Examination of the Continuing Role of Custom in the Present Period of Codification of International Law (AW Sijthoff 1972) 76.

[2] E.g., U.N. General Assembly. A/Res/62/20 (10 Jan. 2008).

[3] United States Dept. of Defense, Office of General Counsel, “Department of Defense Law of War Manual” sec. 14.10.2.1, at p. 915, note 153 (June 2015, updated May 2016).

[4] See Arvind Sharma, Are Human Rights Western? A Contribution to the Dialogue of Civilizations (Oxford University Press 2006).

[5] Theodore Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press 1989) 142.

[6]David J. Hill, ‘Introduction’ in Hugo Grotius (transl. by AC Campbell), The Rights of War and Peace, including the Law of Nature and of Nations (first published as De Jure Belli ac Pacis in 1670, 1901) 1.

[7] Paul E. Sigmund, Natural Law in Political Thought (Winthrop Publishers, Inc. 1971) viii.

[8] Lloyd L. Weinreb, Natural Law and Justice (Harvard U. Press 1987) 78.

[9]E.g., Roper v. Simmons [2005] 543 U.S. 551 (prohibiting juvenile executions); Koowarta v. Bjekle-Petersen & Others [High Ct. Australia 1985] 68 Int’l L. Rep. 181 (prohibiting racial discrimination); The Antelope [1825] 23 U.S. 64 (supporting slave trade as not contrary to the Law of Nations).

[10]Barbara B. Smuts, ‘Social Relationships and Life Histories of Primates’ in Mary Ellen Morbeck, Allison Galloway, and Adrienne L. Zihlman (eds), The Evolving Female, A Life-History Perspective (Princeton University Press 1997) 60, 60.

[11] David C. Buxbaum, ‘Introduction’ in David C. Buxbaum (ed), Family Law and Customary Law in Asia: A Contemporary Legal Perspective (MartinusNijhoff, The Hague 1968) xxxviii.

[12] Sun Tzu, The Art of War (Fall River Press 2015) Ch. VIII(11), at 76.

Centre for Aviation and Space Laws Volume 1

Losing Afghan Land, and Also Skies

Avantik Tamta*

Key Words: Consumer behavior – Kabul airspace – Rawlsian political conception theory – Taliban

With the Taliban taking over Afghanistan, massive uncertainty has sparked off in the realm of aviation. Considering most flights connecting the Indian subcontinent to the West rely on flying over the Afghani airspace, the recent Notice To Airmen (NOTAM) suggesting airlines to reroute their paths so as to avoid Afghan airspace, comes as a significant damper.

A closer look at the map and one would understand that the alternate to avoiding Kabul is to choose between the costlier and more inconvenient options of Iran, the Middle East and Belarus, which is infamous for arbitrary denial of flying permission.

Insurance worries aside, both government and airlines remain sincere adherents to the idea of evading hazardous flying. The shooting of the Malaysian Airlines plane near eastern Ukraine in 2014, and the downing of the Ukraine flight in 2020 by Iran, instill vivid reminders of the perils of choosing to be adventurous in the face of caution.


Although experts believe that the conflict is not particularly going to affect global crude oil prices in the long run, it is safe to infer that the regional instability will surely shoot up the price of oil till a recognized government is formed in the country. The inflationary standards of oil, coupled with increased flying time has sort of created a double whammy for air travelers and commercial participants alike. At a time, when the aviation industry is still recuperating from the insufferable hurdles posed by the COVID pandemic, such turmoil is bound to test the melting point of insignificant players.


Furthermore, the radical alteration of consumer behavior, post the pandemic, has essentially eradicated the prioritization of business travelers, given how business operate online instead of offline in the prevailing circumstances. The consequence is the compulsive change in strategy- to reorient preference to suit the requirements of leisure travelers over business travelers.


Interestingly, be it business travelers who value time over money, or leisure travelers who value money over time, the instant need to avoid Kabul airspace deters intentions to favor either. Rerouting will force additional flying time, and the additional flying time will factor in fuel surcharges which will reflect in increased costs. Therefore, there is no real escaping for the aviation industry this time, particularly in respect of flights to and from India.


Given the lucrative source of revenue in doling out overflying permits, the Taliban is most likely to engage with countries in amassing such convenient contracting of financial wealth. Regardless of such an initiative, it is quite unlikely, however, that sovereigns are going to engage with the likes of Taliban in procuring such permit, primarily because such a give and take could evidence formal recognition of a Taliban government within sovereign quarters.


Even if hypothetically speaking, we were to assume a light at the end of a tunnel in the sense of overflying permits being put in place, airlines are most likely to continue avoiding use of Afghani airspace during Taliban rule. The duplicity of the terror outfit aside, the possibility of having to request emergency landing during the path of flying seems like an inconvenient reality for airlines to justify to its passengers, if choosing to fly over Afghanistan. Consequently, airlines are predicted to avoid the Kabul airspace irrevocably during the continuance of the Taliban as a pseudo-State entity.


Dwindling profits, and increased operational costs of west-east connectivity is going to reflect in the substantial constriction of the frequency of flights flying in and out of New Delhi. While the assumption is still based on conjecture, one would assume that the consequence would also factor in within the future of India’s geopolitical nexus with its influential diplomatic partners in the west. While most of the world leaders, led by the People’s Republic China and Russia, have engaged in a strange strategy to bid time for the Taliban in amassing political momentum, it is absolutely crucial for India to effectively maneuver its influence as the chair of the UNSC in mobilizing international isolation of the Taliban. Only then can there be a sincere attempt at regaining the Afghani land for the Afghan people. Though the need to avoid military action is paramount, one must remember the Rawlsian political conception theory of Human Rights, which suggests the international community must use force when the factual sovereign unleashes terror on its own citizens. A duty lies on the international community to safeguard the interests of their international citizens when subjected to the tyranny of one particular sovereign/sovereign-like entity.


Even as countries await to successfully repatriate their citizens out of Afghanistan, there is no clarity regarding the future of Afghanistan and its people. If India is to hold on to its influence in the subcontinent, it must bypass Chinese influence in convincing the sovereign community of the perils of formally recognizing a Taliban government.


Profiteering and sovereign interests aside, we have a people looking to the international community for support. It will be nothing short of a betrayal if we were to defer the security of the people to selfish interests of artificial relevance quantified within the interaction of international powers. One must remember that we are dealing with an international crisis wherein lives are at stake and the cultural identity of a nation is being held at a ransom. The situation is a dire existential crisis for a community of people, and not an invitation for a series of proxy wars to be fought by nations. Consequently, any possibility of advantageous predicament to any international player must solely be co-incidental to the welfare and interests of the Afghani people, and not be prima facie driven by such vicarious intent.
With that being said, one can only hope that United States, United Kingdom, Russia, China, India and the various other powers that be, let their differences aside for a moment to truly appreciate the difficult times the people of Afghanistan are pulling themselves through. One hopes that they will collude just this once, to favor stability over instability, and permit the natural course of unhindered business to flow, err, take off.

***

* Lecturer in Law, O.P. Jindal Global University, Sonipat, Haryana.