Frontiers Unexplored The Unmapped ‘Space Law’ Territory

Frontiers Unexplored : The Unmapped ‘Space Law’ Territory

Author: Sanighdha, University Institute Of Legal Studies, Punjab University, Chandigarh.

Abstract

On 27 March, 2019, India triumphantly tested indigenously built Anti-Satellite (A-SAT) missile and showcased her ‘earlier underestimated’ scientific competence with respect to space dominion. In spite of meticulous advancement and flourishing technical know-how of the unchartered outer space jurisdiction; too little is known about the laws guarding that very area. Preserving the natural resources abundantly found in outer space requires a channelized mechanism conjoined with targeted policy intervention and active juxtaposition of good governance principles. 

Introduction:

The United Nations Office for Outer Space Affairs (UNOOSA) defines space law as, “body of law governing space-related activities.”[1] Guided by jus cogens[2]-it is comprised of specific international agreements, treaty, covenants and innumerable United Nations General assembly (UNGA) resolutions passed up till now. Space law is also dictated by related international organisations. Undeniably, it is relatively an unexplored area in terms of legal instruments and legislation formulation.

The dearth of appropriate international as well as municipal laws, ails this particular sphere. While nations around the world are freely exploring the gargantuan outer space zone; the liabilities of their actions is neither largely discussed nor fixed up legitimately, along with ignoring those actions beyond certain achievements. To fill up these deep widening chasms of the ambiguous and certainly misperceived space legislations, an interdisciplinary approach of environment and human rights principles must be incorporated and assimilated in the global legislative apparatus.

International Conventions:

Space Law is dually governed by the largely accepted Five UN Principles and various UN Treaties.[3]  The principles and Treaties encompass and deal with matters such as non- appropriation of outer space, freedom of exploration by each and every country, arms control, liability for causing damage to the outer space arena, prevention of harmful interference in space activities and the harmless rescue of astronauts form the outer space.[4] It also incorporates principles of rational usage of environment and protection of unharmed space resources.

The Five Principles are herein reproduced-

1. Declaration of Legal Principles Governing Activities of States in the Exploration of and Use of Outer Space (1963)
2. Principles Governing Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (1982)
3. Principles Relating to Remote Sensing of the Earth from Outer Space (1986)
4. Principles Relevant to the Use of Nuclear Power Sources in Outer Space (1992)
5. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (1996)

The aforementioned principles deal with their respective titular functions. The Five United Nations Treaties on Outer Space[5]  are –

Treaty on Principles Governing the Activities of States in the Exploration of and Uses of Outer Space, including Moon and other Celestial Bodies (1967)[6]:

It unequivocally demands and mandates peaceful space explorations sans any malafide intentions. Activities carried out in space by different nations are meant to follow all established international law principles and acceptance of responsibility for any mishap caused while doing so. Space objects can be solely used by the country sending in those objects, unless stated otherwise. Discovery of novel objects in outer space entails additional mechanism of testing the same and identifying the jurisdiction of such object found. International liability is bound to be fixed in cases of mishap.

Agreement on Rescue of Astronauts, the Return of Astronauts and Return of Objects launched into Outer Space (1968)[7]:

It elaborates on Articles 5 and 8[8] of the Outer Space Treaty which specifically provide for the States to take all possible steps and actions to rescue all distressed astronauts and space explorers. Such explorers and astronauts shall be returned to their launching States and given proper assistance. The return of space objects is also mandated by this Agreement, which has to be carried out by the launching States. Article 5 talks about assistance that has to be lent by astronaut of one State party to the astronaut of another Space Party. Whereas, Article 8 provides for the jurisdiction of one State Party over the object that it has launched into space alongwith providing jurisdiction over the objects found by that particular State party. However, objects will only be given to that specific State party after controlled and thorough identification of the object.

Convention on International Liability for Damage Caused by Space Objects (1972)[9]:

Article 7[10] of the Outer Space Treaty specifically mentions the absolute liability that needs to be imposed on any State sending out space objects and causing destruction by the same. Compensation to be paid by the State is absolutely necessary, but a clause for settlement of disputes is also provided alongside. This particular treaty becomes a really encouraging one as it imputes compensatory damages on the liable State.

However how those damages will be used and how those failing State parties will be tried under environment law clauses is not provided for. In cases of faulty mechanism and destruction of natural resources present in the outer space, it becomes absolutely necessary for the UN office to take stringent measures and make such countries specifically liable for damaging natural resources. An alternate route can be mandating liable countries to fund more environment programmes and reduce its carbon emissions by half in a targeted time period.

Convention on Registration of Objects Launched into Outer Space (1976)[11]:

This Convention also provides for imputing responsibility on the States sending their objects in the Outer Space.

Agreements Governing Activities of States on Moons and Other Celestial Bodies (1984)[12]:

It mandates peaceful use of moon and other celestial bodies, while considering them a common heritage of mankind with limited right to exploit such resources. But to what extent exploitation is allowed, has been totally left on the discretion of the States. This highlights a major legal lacuna and implicitly provides for unrestricted space exploration.

However, it must be noted that in 2015, the then Obama Administration bought the US Commercial Space Launch Competitiveness Act (CSLCA, HR 2262)[13] which facilitated a pro-growth environment for developing commercial space industry; by making it legal for American Companies and citizens to own and sell resources that they extract from asteroids and off world locations. The now Trump administration is actively pursuing this law, and asking other countries to provide for financial assistance. Because the US does not think space as a global common, providing such unabated and unimpeded access to them is like poking your own head into the catastrophe that shall soon follow.

United States of America has already called for making the Moon an ‘intergalactic petrol station’[14], which shall be used for filling petrol in space objects and then sending them beyond the Moon. The very idea behind this philosophy and legislation is crooked and will bring no good to any nation, whatsoever. Respecting resources found in outer space must be the way to proceed further, rather than exploiting them for one’s own economic and selfish gains. Increasing competition in space will ultimately lead to a diurnal upsurge in private parties exploring and subsequently wrenching apart the ‘still protected’ arena of our environment.

Certain countries such as Luxemburg and Japan[15] have also passed a Basic Space Law regulating space activities. Inevitability of the same can be gauged form the fact that many space activities such as space mining[16], space debris[17], space exploration[18] and tourism are proactively being approached; with little legal impediments. Sustainable Development Goals No. 9, 11 and 13[19] perfectly resonate with a safer outer space milieu.

India’s Draft Space Law:

Noticing the increased interest in space exploration and successive accomplishments of the ISRO (Indian Space Research Organisation), the Indian government bought the Draft Space Activities Bill (2017)[20]. It was meant to regulate the space exploration activities and other related undertakings. Aiming at increasing investments in the area, it also allowed increased private sector participation. While the possibility of providing private investments seems fancy, regulating private sector for a government organisation won’t come in handy. Covering myriad and widespread space activities by a single legislation will not help the Indian space forum.

The government must bring a different legislation or rules of conduct for different activities, that will help regulate them in a time-bound and legitimate manner. Strict penalties in space-related laws is a must as it helps deter companies from arbitrarily using the outer space. Different regulations for government and non-government agencies must be focused upon. Industry must be actively incorporated in deciding the do’s and don’ts. While the legislation has not been finalised yet and a modification did come in 2019; the availability of viable raw materials in the country itself will help the program a lot. Building indigenous components for space machines and objects via the Aatmanirbhar Bharat Abhiyan should be carried out. This will make active space exploration a reality in India.

Space Law and Human Rights:

United Nations Sustainable Development Goals provide for a sustainable space for a sustainable Earth. The protection of planets in the Outer Space is well aligned in the Treaty itself, and must be followed for rational and non-arbitrary exploration of space dominion. Climate change can be effectively combated by respecting the natural resources available in space. This entails sustaining ethical attitude in the space orbit. Promoting unfettered exploration of space for business activities is a technological bane and must not be advanced in an illegal way. Ethics and human rights should be made a quintessential part of scientific advancements in space and no irrational as well as environmentally unsustainable activity must be allowed without specified legal provisions. Space mining and space tourism laws need to be tightened rather than flexibly relaxing them in an illegitimate way. Profit earning and money-mongering will do utmost harm to outer space territory. Such irrationality will lead humankind straight to its doomsday.

Conclusion:

Sharing knowledge accumulated from space orbit via exploration activities and space mining should be shared with other States as well. International cooperation must be activated rather than a passive engagement. Space laws must be made a part of school curriculum for advancing knowledge in this particular sphere, from a nascent stage only. This will enable tinkering young legal minds in developing viable space solutions. Satellite launches must be regulated in a way that sustains the required scientific objective as well as follow the sustainable development goals in a targeted manner. Inhabiting a planet like our Mother Earth is‘luck by chance’ by us mortal humans, but the same does not mean that outer planets should not be respected at all. Outer space has the same limitations as that of our Earth. Degrading outer space planetary forms and other celestial bodies will not fulfil any of our business interests, but will surely act as a death knell for the whole mankind.

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[1]Space Law, United Nations Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/index.html.

[2] Jus Cogens, Merriam Webster Law Dictionary, https://www.merriam-webster.com/legal/jus%20cogens.

[3] Space Law Treaties and Principles, United Nations Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.

[4] Supra 2.

[5] Treaties, United Nations Office on Outer Space Affairs

https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.

[6] Treaty on Principles Governing the Activities of States in the Exploration of and Uses of Outer Space, including Moon and other Celestial Bodies (1967), United Nations Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html#a5.

[7] Agreement on Rescue of Astronauts, The Return of Astronauts and Return of Objects launched into outer Space (1968), United Nations Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html#a5.

[8] Supra 7.

[9] Convention on International Liability for Damage Caused by Space Objects (1972), United Nations Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html#a5.

[10] Supra 7.

[11] Convention on Registration of Objects launched into Outer Space (1976, United Nations Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html#a5

[12] Agreements Governing Activities of States on Moons and Other Celestial bodies (1984), United Nations Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html#a5.

[13] Commercial Space Launch Competitiveness Act, https://www.govinfo.gov/content/pkg/BILLS-114hr2262enr/pdf/BILLS-114hr2262enr.pdf.

[14] Manish Pandey & Micheal Baggs, Why Does Trump want to mine on Moon, BBC News (Apr. 12, 2020) https://www.bbc.com/news/newsbeat-52228423.

[15] Cecilia Jamasami, Luxemburg and Japan team up to Explore Space, Mining Dot Com (Nov. 29, 2017, 8:01 AM) http://www.mining.com/luxembourg-japan-team-explore-mine-space-resources/#:~:text=The%20five%2Dyear%20cooperation%20agreement%20covers%20the%20exchange%20of%20information,out%2Dof%2Dearth%20resources.&text=Some%20of%20the%20companies%20that,as%20well%20as%20Japanese%20ispace..

[16] Space Mining market Size, Growth, Trend and Forecast till 2025, Space Mining Market, https://www.marketsandmarkets.com/Market-Reports/space-mining-market-129545886.html#:~:text=The%20space%20mining%20market%20is,at%20a%20CAGR%20of%2023.6%25.&text=The%20spacecraft%20design%20segment%20is,share%20during%20the%20forecast%20period.

[17] The European Space Agency, The Cost of Space Debris: In-space collisions increasing likely, Phys Org (May 8, 2020) https://phys.org/news/2020-05-space-debris-in-space-collisions-increasingly.html

[18] Rhyen Whitman, 5 Reasons Why Space Exploration is More Important than Ever, Extreme Tech (Apr. 24, 2018, 10:28 AM) https://www.extremetech.com/extreme/268062-5-reasons-space-exploration-is-more-important-than-ever

[19] About the Sustainable Development Goals, SDG, https://www.un.org/sustainabledevelopment/sustainable-developmentgoals/#:~:text=The%20Sustainable%20Development%20Goals%20are,environmental%20degradation%2C%20peace%20and%20justice..

[20] Draft Space Activities Bill, 2017, https://www.isro.gov.in/update/21-nov-2017/seeking-comments-draft-space-activities-bill-2017-stake-holders-public-regarding.