Centre for Aviation and Space Laws Volume 3 Issue I

Outlining Inconsistencies in the Indian Space Policy 2023

Sandeepa Bhat B.*

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

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

Essence of the 2023 Policy

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

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

Legislative Void

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

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

Compatibility with International Treaty Obligations?

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

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

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

Incidental Issues

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

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

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

Centre for Aviation and Space Laws Volume 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.