Development of National Space Law for India

ABSTRACT

India’s space program has traversed its journey from fishing hamlet—Thumba—to the Red Planet—Mars—with governmental support. Today, the Indian government seeks to realize the technological and financial potential of the private sector and is looking to share its financial burden with them. So long as space activities were completely in the governmental domain, there was not a preference for national space legislation. However, with private actor participation, it cannot be ignored, because even though the activities are private, liability is always public. On the basis of international space law, states bear international responsibility for all their space activities, including activities of non-governmental entities, which explicitly require authorization and supervision from states. There is already a political will in India and it is expected that national space legislation will be another accomplishment for the Indian space program, opening up participation by private players.

Notes

1. Stephen E. Doyle, “A Concise History of Space Law: 1910–2009,” in New Perspectives on Space Law, edited by Mark J. Sundahl and V. Gopalakrishnan (Paris, France: International Institute of Space Law, 2016), 1–24, 1.

2. Resolution 1348 (XIII).

3. See http://www.unoosa.org/oosa/en/ourwork/copuos/history.html (accessed August 2016).

4. Ibid.

5. Stephan Hobe, “National Space Legislation: What the International Law Demands and How it is Implemented,” in Commercialisation and Privatisation of Space—Issues for National Space Legislation, edited by R. Venkata Rao and Kumar Abhijeet (New Delhi, India: Knowledge World Publishers, 2016), 31–36; Stephan Hobe, “International Space Law in its First Half Century in IISL,” in Proceedings of the 49^th Colloquium on the Law of Outer Space (Reston, VA: AIAA, 2007), 376.

6. UNGA Resolution 2222(XXI) of 19 December 1966.

7. UNGA Resolution 2345(XXII) of 19 December 1967.

8. UNGA Resolution 2777(XXVI) of 29 November 1971.

9. UNGA Resolution 3235(XXIX) of 12 November 1974.

10. UNGA Resolution 34/68 of 5 December 1979.

11. See Committee on Peaceful Use of Outer Space (Legal Subcommittee); Status of International Agreements Relating to Activities in Outer Space, 1 January 2016 (A/AC.105/C.2/2016/CRP.3), http://www.unoosa.org/pdf/limited/c2/AC105_C2_2015_CRP08E.pdf (accessed August 2016).

12. UNGA Resolution 37/92 of 10 December 1982.

13. UNGA Resolution 41/65 of 3 December 1986.

14. UNGA Resolution 47/68 of 14 December 1992.

15. Supra note 5.

16. UNGA Resolution 51/122 of 13 December 1996.

17. UNGA Resolution 59/ 115 of 10 December 2004.

18. UNGA Resolution 62/101 of 17 December 2007.

19. UNGA Resolution 68/74 of 11 December 2013.

20. Supra note 5.

21. UNGA Resolution 62/217 of 22 December 2007.

22. Signed in Berlin 9 March 2012.

23. See “India’s First Private Rocket Set for Launch in 2020,” in Business Standard, 13 June 2016, http://www.business-standard.com/article/current-affairs/india-s-first-private-rocket-set-for-launch-in-2020-116061300023_1.html; also, see “Plan to Privatize PSLV by 2020: ISRO Chief,” in The Times of India, 15 February 2016, http://timesofindia.indiatimes.com/india/Plan-to-largely-privatize-PSLV-operations-by-2020-Isro-chief/articleshow/50990145.cms (accessed 3 November 2016).

24. Frans G. von der Dunk, “The International Law of Outer Space and Consequences at the National Level for India: Towards an Indian National Space Law?” in Indian Yearbook of International Law and Policy (International Law Reporter, 2009), 135–163.

25. Irmgard Marboe, “National Space Law,” in Handbook of Space Law, edited by Frans von der Dunk and Fabio Tronchetti (Cheltenham, UK: Edward Elgar Publishing, 2015), 127–204, 138.

26. Article VI, Sentence II of the Outer Space Treaty.

27. Ibid.

28. Article III of the Outer Space Treaty.

29. Paragraph 1 of Article I of the Outer Space Treaty.

30. See Stephan Hobe, “Commentary on Article 1,” in Cologne Commentary on Space Law, Vol. 1, edited by Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, (Cologne, Germany: Carl Heymanns Verlag, 2009), 25–63.

31. Ibid at 41.

32. Supra note 30 at 39.

33. Article II of the Outer Space Treaty.

34. Ram Jakhu, “Legal Issues Relating to the Global Public Interest in Outer Space,” October 2005. See http://drum.lib.umd.edu/bitstream/handle/1903/7916/jakhu.pdf;sequence=1 (accessed September 2016).

35. Manfred Lachs, The Law of Outer Space—An Experience in Contemporary Law Making (Leiden, The Netherlands: Martinus Nijhoff Publishers, 2010), 41.

36. Article IV of the Outer Space Treaty.

37. Article V of the Outer Space Treaty.

38. Article IX of the Outer Space Treaty.

39. Ibid.

40. Supra note 34.

41. See Irmgard Marboe, Setsuko Aoki and Tare Brisibe, “Commentary on the 2013 Resolution on Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space,” in Cologne Commentary on Space Law, Vol. 3, edited by Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl, (Cologne, Germany: Carl Heymanns Verlag, 2015), 483–603.

42. Ibid.

43. Sentence 2, Article VI of the Outer Space Treaty.

44. Julian Hermida, Legal Basis for a National Space Legislation (Dordrecht, The Netherlands: Kluwer Publication, 2004), 29–32; Valerie Kayser, “Commercial Exploitation of Space: Developing Domestic Regulation,” Annals of Air and Space Law 17 (1992): 190.

45. Frans G. von der Dunk, Private Enterprise and Public Interest in the European “Spacecape”—Towards Harmonized National Space Legislation for Private Space Activities in Europe (Leiden, The Netherlands: Martinus Nijhoff Publishers, 1998) 19.

46. Supra note 30 at 11.

47. See Michael Gerhard, “Commentary on Article VI,” in Cologne Commentary on Space Law, Vol. 1, edited by Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl (Cologne, Germany: Carl Heymanns Verlag, 2009), 103–125.

48. Article VII of the Outer Space Treaty.

49. Article II of the Liability Convention.

50. Article III of the Liability Convention.

51. Article V of the Liability Convention.

52. See Armel Kerrest and Lesley Jane Smith, “Commentary on Article VI,” in Cologne Commentary on Space Law, Vol. 1, edited by Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl (Cologne, Germany: Carl Heymanns Verlag, 2009), 136.

53. Ben Cheng, “Article VI of the 1967 Space Treaty Revisited: “International Responsibility,” National Activities,” and the “Appropriate State,” Journal of Space Law 26 (1998): 9.

54. Armel Kerrest, “Liability for Damage Caused by Space Activities,” in Space Law: Current Problems and Perspectives for Future Regulations, edited by Marietta Benkö and K.-U. Schrogl (Utrecht, The Netherlands: Eleven Publishers, 2005), 91–111.

55. Armel Kerrest, “Sharing the Risk of Space Activities: Three Questions, Three Solutions,” in Project 2001—Legal Framework for the Commercial Use of Outer Space, edited by Karl-Heinz Böckstiegel (Cologne, Germany: Carl Heymanns Verlag, 2002), 136.

56. Frans G. von der Dunk, “The Origins of Authorization: Article VI of the Outer Space Treaty and International Space Law,” in National Space Legislation in Europe: Issues of Authorization of Private Space Activities in the Light of European Cooperation (Leiden, The Netherlands: Martinus Nijhoff Publishers, 2011), 3–28.

57. Supra note 25 at 137.

58. Michael Gerhard, “National Space Legislation—Perspectives for Regulating Private Space Activities,” in Space Law: Current Problems and Perspectives for Future Regulations (Utrecht, The Netherlands: Eleven Publishers, 2005) 75–90.

59. Article VIII of the Outer Space Treaty.

60. Article III (1) of the Registration Convention.

61. Article II (1) of the Registration Convention.

62. See Article II of the Registration Convention.

63. Article IV of the Registration Convention requires each state of registry to furnish the Secretary-General of the United Nations the following information concerning each space object carried on its registry: (a) name of launching state or states; (b) an appropriate designator of the space object or its registration number; (c) date and territory or location of launch; (d) basic orbital parameters, including: (i) nodal period; (ii) inclination; (iii) apogee; (iv) perigee; and (e) general function of the space object.

64. Article II (3) of the Registration Convention.

65. Supra note 25 at 137.

66. Henry Hertzfeld and Frans G. von der Dunk, “Bringing Space Law into the Commercial World: Property Rights without Sovereignty,” Chicago Journal of International Law 5 (2005): 89–90.

67. UNGAR 62/101 of 17 December 2007.

68. The Comptroller and Auditor General (CAG) of India is an authority, established under Article 148 of the Constitution of India that audits all receipts and expenditure of the national government and the state governments, including those bodies and authorities substantially financed by the government.

69. Report (Report No. 4 of the year 2012–13) of the Comptroller and Auditor General of India on hybrid satellite digital multimedia broadcasting service agreement with Devas. Available at http://www.cag.gov.in/sites/default/files/audit_report_files/Union_Compliance_Scientic_Department_Multimedia_Broadcasting_Service_4_2012.pdf (accessed September 2016).

70. Article 53 of the Constitution of India.

71. Article 253 of the Constitution of India—legislation for giving effect to international agreements: “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

72. Ranjana Kaul, “National Space Legislation: A Blueprint for India,” in Proceedings of the ISRO-IISL Space Law Conference 2005: Bringing Space Benefits to the Asia Region 26–29 June 2005, Bangalore India (New Delhi, India Allied Publishers Pvt. Ltd., 2006), 2–14.

73. “The fundamental aim of the Policy Framework for Satellite Communications in India is to develop a healthy and thriving communications satellite and ground equipment industry as well as satellite communications service industry in India. Also, use and further development of the capabilities built in India in the area of satellites, launch vehicles and ground equipment design and sustaining these capabilities is an equally important aim. Making available the infrastructure built through INSAT to a larger segment of the economy and population is another corner stone of the policy. Encouraging the private sector investment in the space industry in India and attracting foreign investments in this area are other specific goals.” See http://www.isro.gov.in/indias-space-policy (accessed September 2016).The norms, guidelines, and procedures have been evolved so as to help reach these aims and goals as approved by government in 2000. See http://dos.gov.in/sites/default/files/SATCOM-norms.pdf (accessed September 2016).

74. The government of India adopted the 2011 Remote Sensing Data Policy (RSDP) containing modalities for managing and permitting the acquisition and dissemination of remote sensing data in support of developmental activities. The policy can be reviewed from time to time by government. See http://dos.gov.in/sites/default/files/RSDP-2011.pdf (accessed September 2016).

75. The Right to Information Act 2005 mandates timely response to citizens of India requests for government information in order to promote transparency and accountability in the working of every public authority. See http://rti.gov.in/index.asp (accessed September 2016).

76. Supra note 47 at 117.

77. Michael Gerhard and KU Schrogl, “Report of the Project 2001 Working Group on National Space Legislation,” in Project 2001—Legal Framework for the Commercial Use of Outer Space, edited by Karl-Heinz Böckstiegel (Cologne, Germany: Carl Heymanns Verlag, 2002), 529, 556.

78. International Law Association Resolution 6/2012.

79. Sandeepa Bhat, “On Drafting a Viable Model of National Space Legislation for India,” in Commercialisation and Privatisation of Space—Issues for National Space Legislation, edited by R. Venkata Rao and Kumar Abhijeet (New Delhi, India: Knowledge World Publishers, 2016), 65–77.

80. For commentary on ILA Model Law, see Stephan Hobe, “The ILA Model Law for National Space Legislation in German,” Journal of Air and Space Law 1 (2013): 81–95.

81. Supra note 25 at 184.

82. UNGA Resolution 68/74 of 11 December 2013.

83. Supra note 41 at 546.

84. The Drafting Committee on National Space Act for India organized a two-day workshop on 16–17 January 2015 at ISRO HQ Bangalore. The workshop invited space law experts from India who gave their input on this issue.

85. See “First Indian Space Law Being Vetted by Military” in Deccan Herald, 29 February 2016, http://www.deccanherald.com/content/531672/first-indian-space-law-being.html (accessed 3 November 2016). Also see “India Working on Space Law to Control Private Firms” in Deccan Herald, 12 November 2014, http://www.deccanherald.com/content/441025/india-working-space-law-control.html (accessed 3 November 2016).

86. Round Table Conference on “Commercialization and Privatization of Space—Issue for National Space Legislation,” 18 July 2015.

87. For the text of the Bangalore Declaration, see Annexure 3 in R. Venkata Rao and Kumar Abhijeet, Commercialization and Privatization of Space—Issues for National Space Legislation (New Delhi, India: Knowledge World Publishers, 2016), 159.