By Sandeepa Bhat B.*,
Published by CASL/NUJS, 1 May 2023
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.
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.
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.
See: Original Article