Numerous legal challenges, from intellectual property protection to space finance, are raised by cross-border investment in private space activities as well as the dynamically shifting nature of space firms. These issues call for legal clarity. As a result of these concerns, states have passed national space laws to handle a variety of problems relating to civilian space activity. A review of extant national space law models finds a lack of uniformity among national strategies.
In response to these various approaches, the International Law Association (ILA) presented a draft Model Law on National Outer Space Legislation (ILA Model Law) in 2012. This was followed by the United Nations Peaceful Uses of Outer Space; Refined by the United Nations Outer Space Treaty. Some states have adopted a purely trade-oriented approach, while others seek to strike a balance between the commercial interests of private actors and the principles of common rights enshrined in that treaty. To reach a certain level of harmonization in the creation of national space laws, the Council discussed this at its 52nd meeting, which took place in 2013.
In terms of space activities, India has advanced remarkably since the start of the twenty-first century. However, because of India’s low-cost operations, the private sector is also demonstrating considerable interest in space investment. India is developing as one of the few states in the league of states to approach celestial bodies. As they must be held responsible and accountable for civilian space activities following the United Nations space treaties, these advances are not without legal complications.
The Outer Space Treaty’s Article 6(3) mandates that States also take on global responsibility for the actions of non-governmental organizations and that these non-governmental actions be acknowledged by States and subject to ongoing oversight. Article VII(4) of the Outer Space Treaty defines responsibility for damage brought on by space activities, whether carried out by a “launching State,” a public or private organization, and this is continued by the Liability Treaty. These elements enable orderly growth, call for statutory regulation of civilian space operations, and unduly harm the public interest by holding States responsible and liable for harms brought on by civilian space activities. managed to avoid.
India has been trying to pass a national space law for almost 20 years. Over the last 6 years, more serious efforts have been made to facilitate discussions at the Indian Space Research Organization (ISRO) level and prestigious law schools such as the NLSIU, Bangalore etc.
ISRO eventually drafted the Space Activities Bill 2017 (Bill) and made it available for public comment in 2017. However, the bill has not yet been approved by the government and is not a legally binding document.
The current COVID-19 situation has severely damaged the Indian economy and the Indian government is developing several initiatives to address this issue and strengthen the economy. Further privatization of the Indian space industry is one of the most important attempts in this direction. The Government of India’s intentions in this area is demonstrated by the recent announcement of the establishment of the Indian National Space Propulsion and Authorization Center (IN-SPACe) to facilitate private sector involvement in space operations.
According to current plans, the space sector will be further commercialized by private companies, allowing them to build their satellite launch facilities in addition to using ISRO launch facilities. Restrictions on foreign direct investment in the space sector have been relaxed, boosting space projects and allowing access to funding from other countries. But for efficient implementation, each of these proposals requires a balanced national space law. Therefore, it is now more important than ever to scrutinize the 2017 bill to understand its limitations and rewrite it to enact comprehensive legislation.1
All Indian citizens are covered, as are all industries involved in space-related activities inside and outside India. The central government grants non-transferable licenses to all persons involved in commercial space activities. The central government establishes the necessary licensing procedures, eligibility criteria, and fees, maintaining a register of all space objects (all objects launched or to be launched on Earth). It oversees the conduct and operations of space activities and provides professional and technical support for commercial space activities. It oversees all India’s space activities, ensures that they are conducted safely, and investigates incidents and accidents that may occur during space activities. Information about the cost of goods made possible by space activities and technology should be communicated to individuals or organizations in a prescribed manner. Those who engage in commercial space activities without a permit face up to three years in prison, fines exceeding $1 million, or both. It also contains rules to protect intellectual property rights generated by space activities.2
The Space Activities Act will significantly strengthen the Indian space industry. The Indian space industry has been constrained for years by a lack of clear and supportive regulations. Geospatial World, in its in-depth look at India’s space startups, found that a lack of funding and open politics means companies have found ways to survive, and in some cases, the ecosystem has been more active than in the past. According to a PwC study, India’s space economy is valued at $7 billion, or about 2% of the world’s space economy. Analysis shows that the Indian space industry needs to expand at a CAGR of almost 48% in the next few years to reach the $50 billion target.
The time has come for policies that allow private companies to reach their full potential. With significant market advantages, such as high demand for space services in areas such as agriculture and financial services, a strong domestic manufacturing base, a rich talent pool, and the ability to leverage IT skills, the Space Activities Act is expected to facilitate such which can play a crucial role.3
Despite having the dual goals of regulating and promoting space activities, the draft bill adopts an excessively regulatory approach, viewing regulation as control, through a complex licensing system, giving legally binding instructions, imposing several terms and conditions on the licensee, and asking them to provide information, inquiring into their affairs, and creating a variety of offenses. Alarmingly, this is coupled with the absence of any clause requiring the regulatory authority to be accountable and transparent. According to Clause 26 of the Bill, the Central Government is not liable for anything done in good faith following the Bill and the rules issued under it. Judicial review, a fundamental component of the Constitution, is expressly excluded from the Bill, and this raises severe concerns about its validity. In addition, the proposed Bill merely provides a general regulatory framework that is lacking in many crucial specifics. It suffers from excessive delegation since it grants the Central Government broad authority to make rules without providing much advice on how to use them. A draft bill centred on the concept of licensing includes the authority to specify the qualifying requirements for licensing.
Numerous further issues are found when the draft bill’s substantive sections are examined. First off, it’s unclear how far the Bill will apply. It is stated in clause 1(2) that it applies to aircraft and other airborne vehicles registered in India, which could result in uncertainty about the need for a license for specific aviation activities. In addition, the Bill only applies to Indian citizens and government or private entities registered in India, excluding applications to foreigners and foreign entities. As a result, the application clause must cover all individuals, regardless of nationality, in cases where space activities are carried out in collaboration with foreign persons. Given that space is a major theme, it is unclear why the Act should take effect on various dates in each state.4
The bill’s explanation emphasizes the need for national space legislation to support increased commercial participation in space activities and to comply with the requirements of international space agreements. “The legal environment should be one that only supports the continued growth of the space business in India, not just a regulatory and restrictive regime,” the explanation added, making another suggestion. This strategy parallels how the United States is moving toward full-scale commercialization of space. Such a decision to prioritize economic interests over international treaty requirements is unwelcome.
According to the description, the bill builds on her ILA model law and recognizes different approaches in other states. A careful examination of the drafts reveals that there are also significant differences in the ILA Model Law.5
While the bill is a welcome step to boost the space industry, it separates space-based and ground-based activities to address business operations, international obligations, national security concerns, and intellectual property. Protection should allow for the creation of specific laws. To create a competitive ecosystem for the space industry, all stakeholders must be consulted, and the management of the space value chain and its incorporation into legislation must take global best practices into account.6
- Sandeepa Bhat B, A Critique on the Indian Draft Space Activities Bill 2017, Mary Ann Liebert Inc Publishers(16 Mar 2022) Available at: https://www.liebertpub.com/doi/10.1089/space.2021.0042
- The Editor, Draft Space Activities Bill, 2017, drishtiias (13 Dec,2018) Available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/draft-space-activities-bill-2017
- Avneep Dhingra,Space Activities Bill: What’s the current status; why is it important?,GW Prime(30 July, 2021) Availvable at: https://www.geospatialworld.net/article/space-activities-bill-whats-the-current-status-why-is-it-important-eos/
- Ms. Rima Hore,A CRITIQUE OF THE DRAFT SPACE ACTIVITIES BILL, 2017,ASLaltjournal (Last Visited: 28 September, 2022) Available at: https://www.cmr.edu.in/school-of-legal-studies/journal/wp-content/uploads/2021/03/Article-5-1.pdf
- Supra note 1
- Supra note 2
This article has been written by Jay Kumar Gupta. He is currently a second-year BBA LL.B.(Hons.) student at the School of Law, Narsee Monjee Institute of Management Studies, Bangalore.