DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

AIR AND SPACE LAW

DOMESTIC LEGISLATIONS GOVERNING SPACE ACTIVITIES

Name Of the Faculty: Mr. P. Jogi Naidu

Name Of the Student: Arthi Gaddipati

Roll No: 19LLB102

Semester VII
 TABLE OF CONTENTS

Acknowledgements……………………………………………………………...2

Introduction……………………………………………………………………...3

Scope of Jurisdiction…………………………………………………………….4

Conditions on Licensing and Permission………………………………………..5

Indian Space Laws……………………………………………………………….6

Draft Space Activities Bill……………………………………………………….7

The Rationale of Domestic Legislation for Space Activities…………………….8

Implementation Of the Treaties at The State Level………………………………9

Duties Delegated by The Outer Space Treaty Upon the States…………………10

Conclusion……………………………………………………………………..11

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 ACKNOWLEDGEMET

I would like to express my gratitude and heartfelt appreciation to my teachers who gave me the
golden opportunity to do this wonderful project on this interesting topic; which helped me
learn, analyze and explore this specific field of subject by digging deeper into the never ending
mine of knowledge through an extensive and thorough research.

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 INTRODUCTION

The term "space law" refers to the corpus of legislation that regulates and deals with space-
related activity. Similar to international law, space law is composed of a number of
conventions, treaties, decisions of the UN General Assembly, and the rules and regulations of
many international bodies. The Outer Space Treaty, the Rescue Agreement, the Liability
Convention, the Registration Convention, and the Moon Agreement are the five international
treaties and five sets of principles governing outer space that have been formed under the
patronage and aegis of the United Nations. Space law is concerned with the rules, regulations,
principles, and standards of international law that appear in these documents. In addition to
these international agreements and treaties, many states have their own national legislations
governing the space-related activities.

The preservation of the environment in space and on Earth, the responsibility for harm caused
by space objects, the resolution of legal disputes, the rescue of astronauts, the exchange of
knowledge about potential perils in space, the use of space-related technologies, and
international cooperation are just a few of the topics covered by the space law. A number of
guiding principles govern the conduct of space activities, including the conviction that space
is humankind's domain, the freedom for all states to explore and use space without restriction,
and the prohibition against appropriating space, which forbids states from claiming sovereignty
over space objects.

States have adopted national legislation on space activities for several reasons. The first and
most important stimulus is the Outer Space Treaty (OST)1, to which all spacefaring nations are
parties. The OST obligates a state party to ensure that its nongovernmental entities will abide
by international law, including the provisions of the OST itself. Unlike customary international
law, which imposes responsibility on a state only for internationally wrongful acts carried out
by its government or nongovernmental entities that share a special nexus with the government2,
the OST provides that a state is directly and internationally responsible for its nongovernmental
space activities.

1
6 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including
the Moon and Other Celestial Bodies art. VIII, Jan. 27, 1967, 18 U.S.T. 2410, 610 UNTS 205.
2
Int’l Law Comm’n, Rep. on the Work of its Fifty-Third Session, Draft Articles on Responsibility of States for
Internationally Wrongful Acts arts. 4–11, U.N. Doc. A/56/10, at 2–3 (2001).

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This has prompted states to adopt space activities acts with licensing and monitoring
requirements that control these operations in order to be watchful of private space activities.
There are a number of additional reasons why states have passed legislation. States are required
by law to enforce strong regulations to guarantee public safety and health since launching a
spacecraft or satellite is still a very risky operation. States require legislation to guarantee that
third-party liability (TPL) insurance is maintained by operators and that innocent victims are
fairly reimbursed in the case of an accident and harm.

Finally, states have passed federal legislation to support the space industry. In relation to TPL
indemnification payments, which are given to a private launch provider when accident-related
damages exceed insurance coverage, government support can be particularly crucial. In
conclusion, national space acts are put in place to guarantee that international space law is
followed, that citizens are safe, that victims of harm are protected, and that domestic space
commerce is promoted.3

SCOPE OF NATIONAL JURISDICTION

Concerning the scope of national jurisdiction, the Korean Act is the most expansive. It asserts
jurisdiction extraterritorially by requiring a license to launch a rocket that is owned by the
Korean government or a Korean national, even when a foreign national intends to conduct the
launch outside of Korea. For its part, the Chinese Licensing Measures “shall apply to all the
space objects launched in the territory of China, and the space objects jointly launched abroad
by China and other States.” This is a standard assertion of authority, reflecting a combination
of territorial and personal jurisdiction.

In contrast, the Japanese SAA is unique in that it strictly limits national jurisdiction to Japanese
territory. The law provides that a person who intends to launch a space vehicle onto which a
satellite or satellites are loaded must obtain permission from the Prime Minister only when
“using a launch site located in Japan or on board a vessel or aircraft with Japanese
nationality.”

A permission from the Prime Minister is furthermore required for anybody who wants to use a
spacecraft control facility in Japan to implement the control of several spacecraft. As a result,

3
V. S. Vereschetin, International Space Law and Domestic Law: Problems of Interrelations, 9 J. Space L. 31
(1981).

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the Japanese government is not required to grant permission or a licence for a Japanese
corporation to launch a rocket or control a satellite from a location outside of Japan. Belgian
and Dutch law also include similar provisions, but Japan's SAA is more territorially restrictive
because even those two countries' laws claim personal jurisdiction in specific circumstances.

The Japanese strategy may be risky as well as advantageous. Given that a foreign government
frequently approves and oversees the launch and operation of space objects in and from its
territory regardless of the nationality of those involved, strictly territorial jurisdiction will, on
the one hand, help to prevent double-licensing requirements for Japanese companies. The SAA
also reduces ambiguity with regard to the actual application of enforcement authority over the
foreign operations of Japanese corporations. As a result, the legislation supports space business.

On the other hand, given the absence of national acts and other forms of governmental
administration in many states, Japanese players may run into regulatory gaps while attempting
to undertake space operations elsewhere. This suggests that Japan might not carry out its
particular obligation under the OST. More governments will need to pass space activities laws
in line with UN General Assembly Resolution 68/74, which provides suggested criteria for this
kind of change, in order to avoid this issue.

CONDITIONS ON LICENSING AND PERMISSION

The licencing of rocket launches and satellite operations is subject to restrictions by Chinese,
Japanese, and Korean legislation as well. In the Chinese scenario, the eventual owner of the
satellite is examined by the Commission of Science, Technology, and Industry for National
Defense after the applicant—who must be the general project contractor or, in the absence of
a Chinese contractor, the applicant—submits the launch plan. Foreigners and Chinese citizens
are both eligible to apply. Among other requirements, the licence applicant must follow
Chinese laws, protect national secrets, refrain from endangering national security, and not
"create irremediable risk to public health, safety, or properties by the project." Here, protecting
national security and trade secrets is prioritised. Detailed TPL provisions are not found in the
Licensing Measures, but there seems to be an implied requirement of financial capacity to
provide compensation in the event of an accident.

The Japanese SAA contains more detailed conditions. The law states that a launch permission
will be given when the Prime Minister is satisfied with the launch vehicle safety standard, the
type-specific site safety standard, and the launch plan, as well as the purposes and methods of

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use of the spacecraft. Even once an applicant is given a launch permission, the person
concerned—the so-called “launch operator”—cannot implement the launch without making
appropriate financial guarantees.

A license to control the spacecraft26 is granted only when the Prime Minister determines that
the purposes and methods of use of the spacecraft comport with UN treaties on outer space and
basic principles of Japan’s Space Basic Act. And the configuration and mechanism of the
spacecraft must comply with space debris mitigation measures specified by Cabinet Office
Order and related regulations. These criteria correspond with space debris mitigation guidelines
of the UN Committee on the Peaceful Uses of Outer Space and the Inter-Agency Space Debris
Coordination Committee. The SAA establishes a precedent in that it sets forth detailed space
debris mitigation measures. No other act has criteria and regulations that are as clear, detailed,
or strict.

INDIAN SPACE LAWS

India still lacks a space legislation to oversee its extraterrestrial operations. In India's pace
industry, which is run by the Indian Space Research Organisation, the government enjoys a
monopoly (ISRO). The government has received several requests from the corporate sector to
open up the Indian Space Programme so that corporations may contribute to the development
of India's space capabilities. The government still controls the space programme, and there
have been no significant changes.

The Indian government changed India's space policies by introducing the Space Activities Bill
2017 (SAB). After undergoing extensive public and legal review, the draught law has now been
forwarded for additional approvals.

Since the Department of Space was established in 1972, it has been in charge of all
administrative aspects of India's space programme. Prior to that, the Department of Atomic
Energy handled such duties. Up until recently, India never recognised the need for national
space laws or regulations since it was considered more of an international problem than a
domestic one. India never gave a space law any thought because of the following two factors:

First off, India did not previously have a commercial sector that could finance its goals for
space exploration. The business sector didn't show any interest in investing in India's space
programme until after they realised how lucrative it might be. Second, the Indian Space

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Program did not initially intend to do space exploration or even launch human or unmanned
spacecraft; however, this has since changed as India has launched missions to the moon and
Mars. India said there was no need for distinct domestic space legislation because it was already
a party to various international space treaties.

Things have dramatically altered as of late. The government suggested privatising the Indian
Space Programme in May 2020, although the head of the Indian Space Programme repeatedly
refuted this claim. The government unveiled the IN-SPACe, a new organisation, in June 2020.
(Indian National Space Promotion and Authorisation Centre). A single-window nodal
organisation called IN-SPACe was created to promote the commercialization of Indian space
operations. The discussion around the privatisation of the Indian space programme had started
as a result of the establishment of this corporation.

Additionally, this Indian government has produced a model of the Space-based

Communication Policy of India-2020, commonly known as the Spacecom Policy-2020, as well
as draft norms, rules, and regulations, guidelines, and implementation processes. The following
two objectives are the focus of the policy. The policy's primary goal is to control how
commercial satellites, orbital slots, and ground stations are used for communication purposes.
In addition, this policy covers how private parties may apply for permission to set up additional
communication satellites and ground stations.

DRAFT SPACE ACTIVITIES BILL

In a reiteration of the Indian government’s intent to boost private participation in the country’s
Space sector, Jitendra Singh, Minister of State for Atomic Energy and Department of
Space, has said that the Space Activities Bill is under “active consideration”. In a written
response to a query in the Upper House of the Parliament, the minister informed that the
government is in the process of building an ecosystem to encourage private Space players and
promote indigenous production of Space technology and services. The Space Activities Bill is
aimed at regulating and promoting private participation in India’s Space sector.

Background of the bill

The Draft Space Activities Bill was first made public for comments by the Indian Space
Research Organization (ISRO) in November 2017. The proposed legislation covers several
aspects of India’s Space goals, including international and national obligations. In August

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2020, shortly after the government announced Space reforms, ISRO said that the Bill had been
finalized and was with the Prime Minister’s Office (PMO) for clearance.

As part of the larger reforms, the government announced setting up the Indian National Space
Promotion and Authorization Centre (IN-Space) as an independent nodal agency under the
Department of Space to regulate, promote, handhold and monitor private space activities in
India. Later, access to Department of Space (DOS) facilities and expertise was extended to
private entities to support their Space activities, as the government emphasized that it wanted
to encourage transfer of technologies developed in Space to Indian industries for better
economic growth.

The impact of the bill

The implementation of the Space Activities Bill will give a major boost to the Indian Space
industry, which for years has felt constrained due to lack of clear and favorable policies. In an
in-depth analysis of the Indian Space-tech startup ecosystem last year, Geospatial World had
reported how lack of funds and an open policy was forcing startups to find ways to survive,
and in certain cases look to shift operations to other countries for better opportunities.
According to a pwc report, the Indian Space economy is worth $7 billion, which is around 2%
of the global Space economy. The report noted that India’s Space sector needs to grow at
approximately 48% CAGR over the next few years to reach its target of $50 billion.

With significant market advantages like high demand for Space services in sectors like
agriculture and financial services, strong domestic manufacturing base, a large pool of human
resource and the ability to leverage IT skills, the time is ripe for an enabling policy that allows
private companies to operate to their true potential. The Space Activities Bill can be that policy.

THE RATIONALE OF DOMESTIC LEGISLATION FOR SPACE ACTIVITIES

There is a lobby in India, with an argument that if ISRO could work so successfully, achieving
laurels globally and establishing international landmarks for over half a century, then the need
for a domestic lex specialis does not exist. If at all, the hard-mould of legislative enactment
may interfere with the organisational autonomy, speed of achievement and traction of
innovation. This rationale seems comparable to a common American refrain “If it ain’t broke,
don’t fix it.”

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In fact, India has been rather lucky in this regard with fast development of technology and
almost liability-free operations, but this logic of empirical success does not hold enough
ground, and luck may not smile always. Therefore, a deeper consideration of this argument
reveals its weaknesses. There is an intrinsic fallacy which fails to look at other aspects of
industry development, constitutional mandates, taxation calls, delegated international
obligations from the Outer Space Treaty (OST) and other germane international instruments.
Further, ground realities are changing fast; space activities are changing their character from
scientific exploration to commercial exploitation; States are squeezing funds from the
exchequer for activities with commercial uses while private enterprise is ready and willing to
fill this vacuum.

Hence, the alternative argument prods to enact a domestic space legislation to embody certain
essential fundamentals. For example, to embody international obligations incumbent upon
State parties to create conformance to its own constitution, in consideration of permeable
taxation avenues and to be promotive of its own business culture. These compulsions and
considerations provide enough rationale for such a specialised enactment which accords due
deference to the mandates of the OST, peculiarities of space technology, the colossal
investments in research and development, huge outlays in infra-structure, long gestation period
to profit, the specific dynamics of the space business and above all, the continued race to reach
the goal-post first.

IMPLEMENTATION OF THE TREATIES AT THE STATE LEVEL

Countries following Common Law System, like India, usually have a system to ratify those
treaties that have been signed by the Executive. This is the basic requirement for considering
the treaty obligations as binding. This process has been completed for the main four
international instruments germane to space activities, while the Moon Agreement, 1979 still
awaits initiation of such ratification by India. In addition, the implementation of international
obligations at the domestic level in India requires a legislative act of passing a law.

On the other hand, countries that abide by the Roman Law System, like the US, follow
the doctrine of General Reception. In their case, treaties that are ratified by them become self-
executing treaties, which do not need any subsequent legislation for implementing in the

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domestic level. Japan also follows similar practice and treaties with due ratification are
automatically accepted as integral to domestic law4.

It needs no additional enactment, legislative debate or approval. Thus, these systems flag the
difference in the character of, as also the manner of, State-level implementation of the treaties
to give them effect into municipal law. This difference in approach also highlights the necessity
for a covering national legislation especially in a State like India.

DUTIES DELEGATED BY THE OUTER SPACE TREATY UPON THE STATES

The first and most important reason for a national space legislation is the need to support Outer
Space Treaty where it delegates certain aspects of implementation on the State-parties. For
example, it requires States to maintain a National Register of space objects launched into the
outer space and to inform Secretary General of the United Nations with details of such launches
(Article VIII).5 This would establish ownership over the object and inform of jurisdiction and
control over the same. Thus, this becomes a double-edged weapon of its identification and
attribution of liability.

The OST also ordains, “State-parties…shall bear international responsibility for national
activities in outer space, including the Moon and other celestial bodies” undertaken by
whichever entity (Article VI). It further mandates that such activities “shall require
authorisation and continuing supervision” by the appropriate State (Article VI). Thus, this
provision demands a conscious legal cover by the State for authorising such ventures and
continuing checks of compliance for ensuring safety.

Further, the OST establishes a liability regime where a State “that launches or procures the
launching of an object into outer space, including the Moon and celestial bodies, and each State
Party from whose territory or facility an object is launched, is internationally liable for damage
to another State Party…or to its natural and juridical persons by such object or its component
parts on the Earth, in the air space or in the outer space, including the Moon and other celestial
bodies.” (Article VII)6. But as liability compensation would be payable from the Consolidate

4
The Constitutional Law of Japan, Article 98, paragraph 2 guarantees prior application and implementation of
ratified treaties in national laws and domestic courts.
5
Convention on Registration of Objects Launched into Outer Space, 1975.
6
Convention on International Liability for Damage Caused by Space Objects, 1972.

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Fund of India, this provision needs admissibility and acceptance according to the Constitution
of India.

There are certain other obligations imposed by the OST on the States like non-appropriation of
the outer space, including the Moon and celestial bodies, by claims of sovereignty by use or
occupation or by any other means (Article II). It is also incumbent on the States to take due
regard not to pollute or contaminate the outer space and the celestial bodies or vice versa. Apart
from these, there are several soft law resolutions of the UN like Mitigation of Space Debris
which command compliance. Thus, these illustrations of State responsibility amply illustrate
the need for tiered action at State-level through proper legislation to complement the intent and
spirit of the instruments of space law.

CONCLUSION

Commercial space travel has commenced operations and with the increasing frequency of
scheduled space-lines, the need for space situational awareness and space traffic management
would dominate for safe travel. Space tourism and planetary residencies would be the next step
in this advancement. Therefore, discipline in such multi-ethnic and multi-nation groupings
would be important to accommodate individual sensitivities and social diversities. All these
would make cooperation in outer space and on the celestial bodies an imperative necessity.

From another angle also, outer space and celestial bodies are a province of all mankind for
peaceful activities and the OST promises freedom of access to all so desirous. This freedom,
however, has a rider of non-interference. Nevertheless, this, so-called, common heritage should
equitably release benefits to all States. Besides, the space environment is hazardous and even
unsparing in its quality and character. Hence, in eventualities of accident or disaster, help and
shelter would be wanting from other operators nearby and this succour should be offered
without demur or discrimination. These and many other provisions of the OST exhort for
cooperation in the outer space that become binding and reciprocal. This attitude and training
must start from the State level with an appropriate law that provides such a mental fix for
cooperation in outer space.

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