Aaditya Vikram Sharma*
Keywords: COPUOS – ISRO – Non-Aligned Movement – Peaceful uses – Space experiments
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.
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