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CASL 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

CASL 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

CASL 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.

CASL 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.

CASL 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.

CASL 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.

CASL 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.

CASL 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.

CASL 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>

CASL 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.

CASL 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.

CASL Volume 1

Arbitration of Space Disputes: A Review of the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities

Arthad Kurlekar*

Key Words: Arbitration – Outer Space – PCA Rules – UNCITRAL Rules

This year marks the ten year anniversary of the Permanent Court of Arbitration (“PCA”) Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (the “Rules”). With no publicly reported cases, the Rules are yet to gain popularity among potential users. A recent post, by Rosenberg and Dadwal highlights the conundrum stating that “[t]he PCA has administered disputes relating to outer space, but in those cases, the parties arbitrated their disputes under the 1976 UNCITRAL Arbitration Rules rather than the PCA Outer Space Rules”, attributing this to a lack of awarenessof the PCA and its Rules.

The question remains whether the Rules offer anything to incentivise users to deviate from the well-trodden path of selecting the UNCITRAL Rules? To address this, the postevaluates the features of the Rules, whicharearguably designed to better augment the resolution of disputes involving space law specific issues. The Rules have been inspired from the 2010 UNCITRAL Arbitration Rules with three majormodifications concerning: (i) the scope of application, specifically adapting the Rules to all users, private parties, states and international organisations; (ii) applicability of the confidentiality regime and (iii) procedure applicate to experts and scientific and technical information.

The Scope of Application

The introductory section to the Rules demonstrates that the PCA foresees the potential users of the Rules to be a combination of States, private actors and international organisations. It thus states that the Rules encompass procedural tools which could be utilized by States, international organisations or private entities in resolving disputes with an outer space element.The flexibility of the rules is in-keeping with the nature and operation of outer-space activities. For example, the launch of satellites of a private state actor, which occurs through a government facility, can involve state and non-state actors, which in case of a dispute would require the flexibility afforded by the Rules. Article 1(1) of the Rules extends the application of the Rules to “a defined legal relationship, whether contractual or not”. Together with the introductory paragraph, this leaves room for States to incorporate the Rules in their bilateral and multilateral treaties, or in statutes extending their application beyond contractual disputes.

To avoid issues of subject-matter jurisdiction, particularly on what constitutes “outer-space law issues”;Article 1(1) provides that the “characterization of the dispute as relating to outer space is not necessary for jurisdiction where parties have agreed to settle a specific dispute under these Rules”. This particular phrasing side-stepping rationemateriaejurisdiction hurdles is also seen in the other subject-indicative rules published by the PCA on relating to the environment and natural resources. Accordingly, the applicability of the Rules is independent of their designation as those concerning “outer space law” issues, with the only requirement being the agreement of the parties. In theory, therefore, nothing stops parties from adopting these rules for any of their disputes so long as all parties to the jurisdictional instrument agree.

Article 1(2) of the Rules, another modification to the UNCITRAL Rules, expressly accounts for the fact that States may have disputes against not just other States but also against private investors capable of settlement by arbitration.Therefore, it provides that the agreement represents a waiver of immunity from jurisdiction. However, it also qualifies this by stating that agreement to the Rules is not an automatic waiver of immunity from execution. The assurance of a waiver of jurisdictional immunity in case of an agreement to arbitrate disputes, together with the need foran express waiver requirement for immunity from execution, reflect prominent viewpoints on the issues. Specifically, it allows for the party entering into the arbitration agreement an assurance that it would be enforced, while simultaneously  also protecting a State’s exercise over its critical assets in case of an adverse outcome. Thisarguably helps balance bothParties’ interests.Thus, the Rules demonstrate that private users, and states (and indeed international organisations) are considered as potential users.

Moreover, the PCA states that the Rules have been designed to “reflect the public international law element that pertains to disputes that may involve states”. This is reflected in the Rules, as an illustration, in Article 9 which provides for the possibility of five arbitrators, a procedural feature arguably typical to inter-state cases.[[1]]

Confidentiality

Disputes involving elements of outer space law may have aspects including trade secrets, or issues affecting national security. As a result, Article 17(6)  provides for clearly enunciated procedure to qualify documents as “classified” bolstering the confidentiality protections afforded to the Parties. The Tribunal is empowered to determine whether such information needs special measures of protection from disclosure, failing which it would cause serious harm to either party. If so, then, under Article 17(7) Tribunal has the power to determine the persons to whom the confidential information may be released and on what conditions. The Tribunal also has the power to decide whether a confidentiality adviser has to be appointed. Additionally, under Article 17(8) such a person would ordinarily be allowed access to the documents and then would prepare a report for the Tribunal on the specific issues designated by the Tribunal, without disclosing the confidential information to the Tribunal.These options, which the Tribunal is now expressly empowered to consider, help to address the potentially sensitive nature of disputes foreseen to arise because of the elements of outer space law involved.

Expertsand Scientific Information

As with arbitrations having technical components, the Rules envisage the appointment of a Tribunal-appointed expert (Article 29(1)), should the Tribunal consider necessary to help address the scientific and technical issues that may arise. Such issues can cover a broad range from technical specifications under a contract which would potentially require experts in the relevant sciences, to the determination and forecasting of losses accrued by a party which could potentially require forensic accountants, or a combination thereof.[2] As discussed above, the Tribunal may impose confidentiality requirements upon experts. Therefore, any appointed expert’s purview is subject to any restrictions the Tribunal may impose on the basis of the sensitivity of the information (Article 29(5)). The balance achieved in these provisions is designed considering that some or all of the members of the Tribunal itself may not be leading experts in the relevant field and could be assisted by experts, while recognising the fact that parties may have serious confidentiality concerns with sharing such data with experts.

Apart from experts, the Rules also envisage the possibility for the Tribunal to jointly or separately provide a “non-technical” document summarizing and explaining the background to any scientific, technical or other specialised information the Tribunal considers necessary to understand fully the matters in dispute (Article 27(4)). This could assist the Tribunal in contextualising any expert report and to fully understand the implications in light of the technical nature of outer space disputes.

These prominent modifications to the UNCITRAL Rules bring to fore the question of the suitability of the Rules to disputes relating to outer space issues vis-à-vis provisions of the 2010 UNCITRAL Rules.

The Rules present modest but important clarifications on all three aspects discussed above:

First, with respect to waiver of immunity from jurisdiction, the ILC has confirmed in Article 17 of its Draft Articles on Jurisdictional Immunities of States and Their Property 1991, that in its view, entering into an arbitration agreement results in a waiver of immunity from jurisdiction. However, a waiver mentioned as part of the Rules ensures that there is very little likelihood of any parallel proceedings in domestic courts in cases involving States.

Second, in terms of confidentiality, while the 2010 UNCITRAL Rules do not stipulate any specific obligation of confidentiality, Article 34 of the 2010 UNCITRAL Rules states that an award shall only be made public with the consent of all parties. A corollary of this is thatparties have a duty to keep the award confidential, if either party does not consent. The applicable confidentiality regime under the UNCITRAL Rulescan also be enhanced by encompassing confidentiality clauses particularly in the contracts/ instruments referring the matter toarbitration. The existence of confidentiality clauses in such contracts which may involve information protected by rights, with security implications or other sensitive purpose is unsurprising. However, clarifying and bolstering the regime applicable to confidentiality under the Rulesprovides clarity and added value to potential users.

Finally, the clarifications on the powers of the Tribunal to receive a non-technical document, and to appoint an expert, deal with the reality that a tribunal versed in legal matters may not be equally versed with the scientific and technical aspects in dispute, and might warrant (and benefit from) additional submissions either joint or separate to contextualise such information. While in principle, this matter can also be proposed and agreed under the 2010 UNCITRAL Arbitration Rules, the express reference to this power ensures more liberty in the hands of the Tribunal.These clarifications provide added value to potential users, but whether the Rules gain popularity with increasing activity of private actors in the space industry remains to be seen.

Any opinions or views expressed in the post are original, entirely personal and independent. Any views or opinions expressed do not represent the views of any organisation with which the author is affiliated at present or was affiliated in the past. It is also affirmed that the author has not received any funding from any organisation for the post.

***

References: 

* Associate, Curtis Mallet Prevost Colt Mosle LLP, Geneva, LLM (MIDS), BCL (Oxon), BA.LLB (NUJS)

[1] Article 4 of Annex VII of the United Nations Convention on the Law of the Sea which provides for a five member tribunal to be constituted)

[2]See e.g.Kishenganga Arbitration (Pakistan v India), PCA Case No. 2011-01

CASL Volume 1

Unraveling the Space Debris Enigma

Geetanjali R Kamat*

Key Words: Space debris; Sustainability; Non-binding mitigation guidelines; COPUOS; Standardization

The twenty-first century is witnessing the emergence of a new era with countries striving to leave their mark in outer space. With more nations willing to compete in the global space race, the future of space exploration looks promising. At the same time, countries are increasingly becoming concerned of the consequences of such activities on the space and the earth’s environment. One such issue is that of “space debris” – a topic which has been subject to years of scientific research and several discussions. In May 2021, the debris from China’s Long March-5B rocket, used to launch its new space station (Tiangong), crashed into the Indian Ocean near Maldives.[ii] Although instances of space debris resulting in damage to spacecrafts, or territories on the earth’s surface are not unprecedented, this incident reiterated the absence of binding international law regarding space debris.

Legal Regime

Presently, international space law requires States to (a) bear international responsibility for conducting national activities in outer space[iii]; and (b) return space objects, if found within their territory, to the state of registry.[iv] In terms of liability, a “launching state” is absolutely liable for damage caused to another State, by its space object, on the earth’s surface or to aircraft in flight.[v] However, in case of damage caused by a space object of one launching state to a space object, or to a person or property on board a space object of another launching state in outer space or in airspace, a fault-based standard of liability will be imposed on the former.[vi]

Apart from the Outer Space Treaty and the Liability Convention, we have bodies such as the Inter-Agency Space Debris Coordination Committee (hereinafter ‘IADC’) and the Committee on the Peaceful Uses of Outer Space (hereinafter ‘COPUOS’), along with national and international space agencies, working on this problem. In 2002, IADC issued the Space Debris Mitigation Guidelines (hereinafter ‘IADC Guidelines’), focusing on aspects such as minimizing the potential for on-orbit break-ups and post-mission disposal.[vii] In 2004, the European Space Agency and the national space agencies of France, Germany, the UK, and Italy adopted the European Code of Conduct for Space Debris Mitigation (hereinafter ‘the European Code of Conduct’), which is in alignment with the IADC Guidelines. Apart from providing for management measures, such as the appointment of the ‘Space Debris Manager’, the European Code of Conduct consists of design and operational measures for space debris mitigation.[viii] Similarly, using the IADC Guidelines as a starting point, COPUOS endorsed certain guidelines (hereinafter ‘the COPUOS Guidelines’) in 2007. Given the non-binding nature of the COPUOS Guidelines, member States were expected to implement “national mechanisms” with an objective to enforce space debris mitigation procedures.

Challenges

International responsibility

The Outer Space Treaty is guided by principles of co-operation and mutual assistance whereby all outer space activities are to be carried out with “due regard” to the corresponding interests of other member States.[ix] Therefore, the freedom of scientific investigation must be balanced with the larger interests of the international space community. Further, a member State is entitled to request consultation concerning the outer space activity with another member State if it has “reason to believe” that such activity would cause potentially harmful interference with the peaceful exploration of outer space.[x] While a member State is, in theory, permitted to exercise such a diplomatic tool, the extent of its enforceability and the effectiveness of such dialogue are uncertain.

Space sustainability

Another important facet of the international approach to long-term sustainability of space activities includes the comprehensive set of standards provided by the International Organization for Standardization (hereinafter  ‘the ISO Standards’). The ISO Standards specify prudent measures for designing and operating spacecrafts in a safe manner with an objective to prevent creation of space debris. In the past, the ISO Standards have benefitted Ukraine, which used these standards to conduct space debris mitigation evaluations of its launch vehicle systems.[xi] Therefore, it is crucial that States strictly comply with the ISO Standards or alternatively, formulate their own measures to implement a procedural framework for space debris mitigation which regulates different stages of space systems. However, if States adopt vastly different standards, this may potentially lead to inconsistent compliance and varying interpretation of “sufficient” space debris mitigation measures.

Way Forward

Incentivizing space debris mitigation

In a welcome move, the ‘Global Future Council on Space Technologies’ has developed the concept of Space Sustainability Rating (hereinafter ‘Sustainability Rating’), which is expected to come into effect early next year. The Sustainability Rating seeks to encourage responsible behaviour in outer space by increasing the transparency of the debris mitigation efforts.[xii] There is a possibility that in the near future, rankings in terms of Sustainability Ratings may even provide a hierarchy of “ethical spacefaring nations” and incentivize States to pay greater attention to space debris mitigation.

Liability Convention

It is a generally agreed principle that damage to the outer space environment does not directly fall within the scope of the Liability Convention.[xiii] Accordingly, accidents which occur due to a space object, either in outer space, to an aircraft in flight, or on the earth’s surface, warrant a separate framework for assessing “damage” and providing “standards of liability”. It is prudent that a stricter framework for liability pertaining to the outer space environment, which also provides for reasonable exceptions, should be drafted in order to enforce an otherwise soft law. Another question worth considering is the stage at which States ought to be held accountable for undertaking space exploration activities in a reckless manner. Instead of risking damage to lives and property owing to an unpredictable trajectory, there should be a uniform mechanism for settling apprehensions in this regard.

Steps taken by India

The Indian Space Research Organization has been an active member of IADC since 1996. As of June 2021, India is in the process of formally adopting a national mechanism on space debris mitigation and strengthening the domestic requirements for Indian entities.[xiv] In the same month, the Department of Space circulated the Draft National Space Transportation Policy, 2020, (hereinafter ‘the NSTP’) for public comments.[xv] The pro forma for obtaining authorizations for launches and sub-orbital launches in the NSTP requires the relevant launching entity to provide a “space debris mitigation plan”. Thus, the fact that applicants are required to provide their “space debris mitigation plans” signifies the proactive approach by the Indian government towards minimization of space debris.

Periodic updates

The existing standards and guidelines in respect of space debris mitigation are revised on a periodic basis to accommodate new developments in this regard. For instance, the IADC Guidelines were revised in June 2021 to provide clarifications on parameters such as operational phases and re-entry risks. Similarly, the ISO Standards were revised in July 2019. Hence, it is crucial that countries also make corresponding revisions to their national policies and frameworks concerning mitigation of space debris and implement effective measures.

Concluding Remarks

Currently, there is no internationally binding treaty on space debris. Additionally, existing policies such as the IADC Guidelines, the COPUOS Guidelines and the European Code of Conduct are non-binding and voluntary in nature. The need of the hour is to evaluate the extent to which existing guidelines, standardization measures and best practices, for mitigating space debris, have proven to be helpful. If a majority of States have enforced useful robust national mechanisms, these guidelines may well have succeeded. However, in case these have been inadequate or unclear, a binding international legal instrument which would tackle such a problem in a uniform and coherent manner will need to be implemented. At the same time, one cannot lose sight of the fact that adopting mitigation measures, including compliance with the ISO Standards, may involve complex technology and high costs. Accordingly, the binding legal framework, if it were to be created, must uphold the overarching fundamentals of space law – principles of equality and non-discrimination.

[i] Geetanjali R Kamat is an Ex-Associate at Touchstone Partners and Founder-Editor at IRCCL

 

[ii] See https://www.firstpost.com/world/debris-from-chinas-long-march-rocket-disintegrates-over-indian-ocean-lands-near-maldives-9605491.html. Last visited, 23 July 2021.

[iii] 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) 1967, Art. VI.

[iv] Outer Space Treaty, Art. VIII.

[v] Convention on International Liability for Damage Caused by Space Objects (Liability Convention) 1972, Art. II.

[vi] Liability Convention, Art. III.

[vii] See https://www.unoosa.org/documents/pdf/spacelaw/sd/IADC.pdf. Last visited, 24 July 2021.

[viii]  See https://www.unoosa.org/documents/pdf/spacelaw/sd/2004-B5-10.pdf. Last visited, 30 July 2021.

[ix] Outer Space Treaty, Art. IX.

[x]Ibid.

[xi] See http://undocs.org/en/A/AC.105/C.1/118. Last visited, 24 July 2021.

[xii] See https://www.weforum.org/projects/space-sustainability-rating. Last visited, 25 July 2021.

[xiii] See https://www.princeton.edu/~ota/disk2/1990/9033/9033.PDF. Last visited, 24 July 2021.

[xiv] See https://www.unoosa.org/documents/pdf/spacelaw/sd/India.pdf. Last visited, 24 July 2021.

[xv] See https://www.isro.gov.in/sites/default/files/draft_national_space_transportation_policy.pdf. Last visited, 23 July 2021.

CASL Volume 1

Humans in Space Policy for India 2021

Sandeepa Bhat B.*

Key Words:          Common rights – DoS/ISRO – Gaganyaan – Intellectual property – Space Act of India

India has evolved as a major space power over the years. The twenty-first century India has been successful in reaching the moon and the mars, which has been accomplished earlier by only three other States in the world[1]. The plan for the Indian human mission to the outer space (Gaganyaan) has been under consideration for more than a decade. Accomplishing it would also place India on the list of the select few States to achieve this feet of human presence in outer space. With an objective to have sustained human presence in outer space for enabling socio-economic growth, the Department of Space has come-up with the Draft Humans in Space Policy for India 2021 (hereinafter ‘the Draft Policy’), which was opened for public comments in February 2021.[2]

The Policy and its Execution

         The Preamble of the Draft Policy recognises the changing dimensions of space activities with the entry of private players into the field. The Indian Government is making efforts to unlock the space sector for incentivising private investments with an objective to boost its ailing economy, especially after the unprecedented economic impact of COVID-19. Through the Draft Policy, as stated in the Preamble, efforts are made towards the adoption of regulatory framework and partnership-building with the public-private associations. This policy framework for human spaceflight is intended to foster collaborations and address proliferation concerns. A reference can also be found in the Preamble on the compliance of laws, policies and treaties in the process of space capacity-building and furthering India’s role in the space sector.

         Though the scope of the Draft Policy vaguely refers to activities under the Indian human space programme and future activities in conjunction with them without any definition, it seems to apply the proposed policy to both public and private sector activities. The substance of the Draft Policy mentions the basic policy principle as “The Humans in Space Policy aims for sustained human presence in space as an instrument for development, innovation and foster collaborations in alignment with national interests.” Though catering to the national interests is significant for the States, the need for fostering the international interest is equally significant in the field of outer space activities. The entire edifice of space law is rooted in the common rights’ principles developed under the five international space treaties of the twentieth century entered under the patronage of the United Nations.[3] Thus, we have the principles like; province of all mankind, absence of national or individual appropriation, considering the interests and benefits of all countries, international cooperation etc. advocated under the space treaties. India, being a strong advocate of common rights’ regime in outer space, should recognise the interest of the international community in its every law and policy objective.

         Execution of activities of human space programme is to be done by the Department of Space or by the Indian Space Research Organization (hereinafter ‘the DoS/ISRO’). The Draft Policy confers wide power to the DoS/ISRO to develop various guidelines including ‘approval-mechanism’ for “activities under the Indian human space programme in confirmation with extant Space Act of India and policy.”[4] There are two concerns that arise out of this. First, this provision is based on the assumption of an enabling law for approval-mechanism, which has not been adopted till date in India. In the absence of an enabling legislation, delegating the power of authorisation to the DoS/ISRO without any legislative framework is questionable. Second, the clubbing of power of authorization and execution with the same agency is also a matter of concern as it amounts to a situation of the DoS/ISRO self-judging its activities. An independent agency to scrutinise the preparedness, safety, security and various compliances for authorization is essential since authorization for any space activity is associated with the burden of State responsibility[5] and international liability[6] under the space treaties. In the event of any disaster due to the lack of preparedness or inadequate safety measures either by the DoS/ISRO or by its private partner, the State exchequer would be hit hard for compensating the victims. This can simply be averted with a second level check of independent scrutiny.

Guidelines

         The next part of the Draft Policy provides for eight guidelines to be followed by the Department of Space in connection with the Gaganyaan. These guidelines include the demonstration of capability for human space flight, developing a long-term roadmap for sustained human missions to outer space, identifying and developing necessary technologies, enabling greater participation of various stakeholders, developing collaborative framework for scientific research, fostering international cooperation to develop collaborative programmes, developing human resources and encouraging entrepreneurship, and promoting outreach activities to encourage public involvement in human space programmes. Though these guidelines are significant in achieving sustained human missions to outer space, much depends on the practical implementation of these guidelines. Unfortunately, the Draft Policy doesn’t provide for the specific nuances in terms of the implementation of the guidelines.

Procedures?

         The last part of the Draft Policy mentions about the procedures, which seems to be a misnomer. Though it mentions about following certain procedures by the DoS/ISRO in implementing some of the guidelines, none of the four clauses in this part is on the procedure to be followed. The first clause mentions about the establishment of a national level body by the DoS/ISRO for supervising and coordinating collaborative ventures. Clauses 2 and 3 under this part entrust the DoS/ISRO to develop certification process for crew safety and to set criteria for crew selection. The last clause mentions about the application of the Space Act of India regarding the protection of intellectual property rights and settlement of disputes. Hence, none of the clauses provide for any procedure for implementing the guidelines. The proposed national level body under this part is primarily for coordination between various stakeholders and also for overseeing the activities under human space programmes. As it is intended to oversee all human space missions including the ISRO missions, the DoS/ISRO’s control over it cannot be justified from a legal perspective. Moreover, the Draft Policy fails to delineate the powers, responsibilities and role of different bodies like the ISRO, Antrix Corporation, NewSpace India Limited, and the proposed new national level body in connection with the human space missions.

         On the intellectual property and dispute settlement clause, it is also pertinent to note here that the current status of the intellectual property rights’ protection in outer space under the Indian laws is quite unclear. Only reference to space-based intellectual property rights can be seen in the Draft Space Activities Bill 2017 (hereinafter ‘the Draft Bill’)[7]. Section 25(1) of the Draft Bill stipulates the protection of intellectual property rights generated or created during the course of any activity under any law for the time being in force. However, Section 25(2) confers the property rights to the Central Government on the space-based intellectual property created on board any space object. Unless there is change in this position of State monopoly over space-based intellectual property rights, the collaborative human space activities advocated under the Draft Policy would remain as a distant dream in India. It is obvious that the private players would have no incentive to make huge investments in human space missions when they are aware of the fact that their stake in the intellectual property rights would be usurped by the State. The reference by the Draft Policy to the Space Act of India for the settlement of disputes is also misleading as there is no clause on the settlement of disputes under the Draft Bill.

Concluding Remarks

         In the ultimate analysis, developing policy guidelines for the sustained human space activities in India is a welcome step. However, the current Draft Policy suffers from several limitations as highlighted above. It lacks long-term vision and requisite details for having a comprehensive policy. More significantly, the much needed legal understanding, which is indispensable in dealing with any space activity, is completely missing under the Draft Policy. Hence, it is advisable to revisit the Draft Policy to have a comprehensive, legally appropriate and transparent policy framework to facilitate collaborative ventures as has been intended by the drafters.

References:

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

[1] The Soviet Union/Russia, the United States of America and China are the only three other States.

[2] See https://www.isro.gov.in/sites/default/files/draft_humans_in_space_policy-02.pdf Last visited, 2 July 2021.

[3] 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) 1967, Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement) 1968, Convention on International Liability for Damage Caused by Space Objects (Liability Convention) 1972, Convention on Registration of Objects Launched into Outer Space (Registration Convention) 1975 and Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement) 1979.

[4] See supra note 2, Clause 4.

[5] Outer Space Treaty, Art. VI.

[6] Ibid, Art. VII and Liability Convention.

[7] See https://www.isro.gov.in/update/21-nov-2017/seeking-comments-draft-space-activities-bill-2017-stake-holders-public-regarding Last visited, 2 July 2021.