By Dr Ajay Lele
Outer space is an arena which essentially includes Earth orbits; the Moon and other celestial bodies, and their orbits. This arena comes under international jurisdiction. As a notion under international law and also from an ethical perspective, during the 1960s a concept called the Common Heritage to Mankind (CHM) was introduced in the United Nations (UN). For long, this concept is found getting mentioned in various declarations and treaties. Basically, it has been argued that various natural resources of the deep seabed and of outer space should be viewed as the elements of the CHM, the regions belonging to all humanity. However, the issue is that 'are nation-states are in agreement with such formulation'?
In fact, one of the earliest and most successful treaty on space matters called the Outer Space Treaty (OST) of 1967, indirectly refers to a similar idea, but with a bit more specificity. It identifies, not the entire outer space as such, as a field belonging to everybody, but specifies the "exploration and use of outer space" as the "province of all mankind". Especially, the 1979 Moon Treaty recognizes the concept of CHM and raises the need for the equitable sharing of outer space resources. Hence, logically CHM should be at the focus for the formulation of any legal/policy structure for the conduct of various types of activities in the space.
However, the world which we live-in is not so simple and on many occasions, the so-called voices of equality and fairness are found flouting the commandments! On November 18, 2015, the US Congress passed the Space Act of 2015 into law. This legislation which finally has the signature of the then President Barrack Obama gives the US space firms the rights to own and sell natural resources they mine from bodies in space, including asteroids. Indirectly saying that, if any US company can reach any asteroid then that asteroid belongs to them! Essentially, this means that the US President can decide on the ownership of the cosmos!
Today, India is increasing its investments in space. Their second mission to Moon is at the doorstep and have major plans for the near future like the human space mission and establishment of a space station. Also, India has made major inroads into the' strategic' sphere of space by recently conducting an anti-satellite test (ASAT). In addition, India is also finalizing its Space Activities Bill to channelize the activities of the domestic private space industry through national legislation. At the backdrop of all, this it is essential for the Indian Policymakers to remain cognizant the realities mentioned above.
While deciding on the finer nuances its Space Activities Bill, India needs to recognize the fact that they are signatories to the OST and Moon Treaty. India is yet to ratify the Moon agreement, however, in the broader sense needs to ensure that it would follow its international obligations in true spirit. It is important that international responsibility gets due diligence in the field of space.
Presently, New Delhi (and Bangalore) is processing the Space Activities Bill. This bill is under pre-legislative consultations. It has been made clear by the government in Lok Sabha recently that India would fully comply with its obligations under the various relevant UN treaties. It would ensure to meet its international responsibility for national activities in outer space and liability for damages caused by its space activities and space objects by devising and implementing through national legislation. In this context, a bill is getting finalized which will enable the formulation of necessary Rules under the Space Activities Act. Such an act would deal with damages under the liability provisions and decide on the mode of securing financial guarantee for compensating the damages. It is important for India to follow a track, where the domestic industry gets benefited without compromising on any international norms. There could be some criticism from industry for a few provisions since they could impact their profit margin. However, the government would be required to stand firm since any dilution in legal processes could have a direct or indirect impact on space security.
At present, damage to third party space assets is not covered by India’s space policy and there is a need to cater to such lacunae. It is expected that this bill would buoy up the domestic space industry since it would bring more clarity for doing business, both domestically and internationally. The liability issue would be addressed as per international practices. The bill would also inculcate the practice of opting for insurance for various activities like ensuring the satellite etc.
Lastly, if India desires to make its mark globally in the business of space from social to scientific to strategic to commercial domains, then it needs to be backed with the logical and transparent legal mechanism and development of Space Activities Act should be viewed as a necessary step in that direction.
(The author is Senior Fellow, IDSA in New Delhi. Views expressed are personal.)