There exist several papers, articles and books composed by experts from the Academia, Industry and also the Department of Space, India making the case for a well-designed legal framework towards a streamlined functioning of the complete Indian Space ecosystem. This article is a consolidated report covering the major issues raised and recommendations made from sources such as
With the Indian Government aiming to accelerate and expand the use of space technology in national projects and calling for increased industry participation in its space program, there seem to be two broad motivations for formulating a full-fledged national space legislation – ensuring national space security and regulation of private player activities in space.
1. Protection of National Interests and National Security
National space legislation cannot in any way modify a state’s international obligations laid down in the space treaties. However, most of the international space regulations and in particular the Outer Space Treaty (1967), the Liability Convention (1972) and the Registration Convention (1976) impose numerous obligations on governments that cannot somehow be transferred to private entities. The national laws are to be framed so as to regulate the activity of private entities.
1.1. Registration of Space Objects
Since 1987, the DoS maintains the Indian Registry of all objects launched into outer space by India and furnishes appropriate information to the UN Secretary General through the Permanent Mission of India to the UN (Vienna).
- However, a system is to be put in place to establish how and when a space operator will provide data about its space object to the state for inclusion in the Indian and UN Registries.
In the current globalised world, there are four possibilities for a launching state for one single mission: the state which launches; the state which procures the launch service; the state from whose territory the launch occurs; and the state which owns the launch facility
- Therefore, it will be required to establish clear rules so as to prevent double registration since only ONE state must register with the UN.
1.2. Liability of Launching State
The Liability Convention (1972) places absolute and unlimited liability on the launching state for damage caused on Earth or to aircrafts in flight by the space object; Fault liability for damage caused elsewhere; Joint liability of all the four possible launching states.
Given the primary liability of the authorizing state, prerequisites are to be laid down by the state to guarantee that the amount paid by the state for the damage caused by space objects of private entities will eventually be recoverable. Some conditions can be:
- Compulsory insurance covering the launch
- Compulsory insurance covering the operation of the space object
- Issuance and transfer of launch and reentry licenses under state control
- Proof of ability to compensate for liability claims
- Maintain insurance throughout the period of operation
The Federal Aviation Administration (FAA) of the US and the French National Space Act of 2008 include some of these measures. Commercial launch license in the US is the responsibility of the Office of Commercial Space Transportation of the FAA. As per the French Space Operations Act (FSOA) 2008 – Operator should maintain insurance; Operator absolutely liable for damage on earth and airspace; right to make claim for indemnification by the operator, when Govt. pays compensation as per international liability
1.3. Authorization and Supervision
Article VI of the Outer Space Treaty states that “The activities of non-governmental entities in outer space, including the moon and other celestial bodies shall require authorization and continuing supervision by the appropriate State Party to the Treaty”.
Article VI does not directly require the enactment of national space legislation, but ultimately this has emerged as the optimal solution to govern the authorization and supervision of private activities in outer space. Moreover, formulating a national act will serve additional purposes:
- Establish safety standards and guidelines for space activities in general
- Mechanism to ensure adherence to the safety guidelines by private parties
- Guidelines towards space debris mitigation and prevention
- Ensuring non-interference of private activities with national security and foreign policy interests
2. Rising Private Player Participation
The origins of the multi-billion dollar Virgin Galactic, world’s first commercial spaceline, can be traced back to the Ansari X Prize whose winners founded the Mojave Aerospace firm which had developed the suborbital spacecraft for Virgin. This is one live example underscoring the fact that innovation is the main ingredient of competition that in turn builds excellence.
45 years after the last human visit to the moon under the US Government’s Apollo Program that costed $110 Billion in today’s money, the private space company SpaceX is attempting to do a manned fly-by at a fractional cost.
(* NASA has awarded SpaceX $2.6 billion to finish the crewed version of its Dragon capsule. Since the cost of the manned lunar fly-by is hinted to be “a little more than” the cost of a crewed mission to the ISS, even a $5 billion cost is only 5% of the Apollo mission. However, the Apollo program was too grand to be compared to this private fly-by mission, for the former involved 24 astronauts of which 12 landed on the moon and 6 drove roving vehicles on the surface. Moreover, SpaceX like other private companies such as United Launch Alliance (ULA) and Arianespace are subsidised by its Government)
Certainly, handholding by the Governments is necessary in the high-risk entry-barrier laden business of space, for at least a decade or so.
2.1. Promoting Domestic Industry Participation
The “Make in India” initiative has the potential to create the needed competitive environment with the participation of the government-industry-academia triad. Additionally, the following policy initiatives can be taken
- Setting up a national fund for promotion of entrepreneurship on similar lines of NASA’s Small Business Innovation Research (SBIR) & Small Business Technology Transfer (STTR) program and ESA’s Open Sky Technologies Fund (OSTF).
- Establishing a Business Incubation Center (BIC) in a public-private partnership mode involving ISRO, downstream space applications based startups, government departments associated with entrepreneurship and economic development, domestic space industry players, and venture capital ﬁrms in the lines of ESA BIC.
- Promoting interdependent engagement of academia-industry-agency where each of these stakeholders have concrete involvement in deliverables and gain significant benefits having long term ecosystem prospects of spin-offs.
The cutting edge Hodoyoshi micro-satellite series by Japan developed through collaboration between its industry and academia. Hoyodoshi-I was a collaboration between the University of Tokyo and Axelspace, a startup company.
- Setting up a national prize event along the lines of Google’s X-Prize with ISRO being the primary promoter and bringing potential investors and stakeholders on the same table to promote innovation and entrepreneurship.
TeamIndus is one of the leading teams in the Google Lunar X-Prize and is gearing up for a moon landing in Dec 2017 onboard the PSLV.
- Establish an independent national think tank that can provide a fair assessment in purview of national goals, key insights on space programme management, dual-use of technologies, economic impacts of space expenditures, space law, international cooperative space agreements, among other matters.
The European Space Policy Institute (ESPI) provides decision-makers with an informed view on mid- to long-term issues relevant to Europe’s space activities
On the other hand, given the Indian Space Program’s philosophy of primarily catering to the needs of the common man, there is an ethical obligation on the industry players to observe a CSR outlook towards the new space ethos. Additionally, they need to establish an institutional system such as a union or a chamber of commerce that can act as a platform to voice out their opinions, discuss solutions for their issues and cooperate with each other for the growth of the industry as a whole.
2.2. Regulatory Gaps to be Addressed
Policies for the participation of private players do exist, such as the Satellite Communication Policy whose fundamental aim includes development of communications satellite and ground equipment industry as well as satellite communications service industry in India; and the Remote Sensing Data Policy (2011) that allows, under some restrictions, private sector agencies to disseminate satellite remote sensing data in India. There exist areas in the current space regulation regime of the country where the private actors offer recommendations for the growth of the entire domestic private space industry:
2.2.1. Technology Transfer & IPR Issues
- Establishment of definite timelines for private player collaborations and interactions with the DoS for technology transfer
- Clarity on IPR of spin-off technologies resulting from a transferred technology
- Clarity on patenting issues over inventions made onboard space objects as addressed in the 35 U.S. Code § 105 – Inventions in outer space.
2.2.2. Liability & Insurance
- Placing caps on insurance claims with the government covering the additional amount in cases when a third-party claim exceeds the licensee’s insurance.
As per the US Indemnification Policy under the Commercial Space Launch Act (CSLA), the US government covers any third-party claims in excess of $500 million (required insurance coverage cap) to a limit of $3 billion.
- A common national liability pool involving all major stakeholders to prevent the faulting player from going bankrupt and also to avoid burdening the state exchequer if the player somehow turns out to be unable to pay the liability
- The existing Public Liability Insurance Act, 1991 can be expanded and elaborated for the space sector
2.2.3. Registration & Licensing
- Transferability of licenses & registration and terms of transfer, given the obvious fact that selling and buying of space assets will be an integral aspect of space business
- Distribution of liability amongst the participating parties when there is a transfer of ownership
- Transfer clauses specially when the transfers are done between states or parties belonging to different states
2.2.4. Capacity Building
- The GNSS user meet jointly hosted by ISRO and Airports Authority of India (AAI) in 2015 is a commendable initiative towards encouraging industry participation in development of communication satellite infrastructure. Guidelines on establishment of ground support systems and receiver systems are to be detailed.
- Establishment of an ‘Office of Space Commerce’ as a principal unit under the Department of Industrial Policy and Promotion under the Ministry of Commerce and Industry, Government of India that can act as the regulating body for private participation
- Guidelines on dispute resolution mechanisms given the high technology, high risk and dual-nature of space activities, between non-government as well as government entities
The way forward is definitely to draft a national legislation. However, given the multiple vantage points of the different stakeholders involved and the fact that law in general can be interpreted in several ways, drafting a space law that meets the approval of every player will be an intricate if not tedious task. With the additional requirement of adhering to obligations of the international space treaties India has signed, legal framework of space is certain to be elaborate and probably more complex than that of the terrestrial facets of the country.
Please refer the other articles for the latest discussion on the Indian Space Policy “ 3rd Kalpana Chawla Annual Space Policy Dialogue 2017“.