Anarchy in Outer Space: Modern Development Left Ungoverned by International Space Law and International Community(Part-1)

Lovika Jaiswal

Anarchy can be deciphered as a domain independent of any kind of restraint. Where every action is legal or is not particularly illegal. The horrors of such a situation can be partially imagined through the lens of James DeMonaco. The series of the film called “The Purge”[1] is the manifestation of such wild imagination which adds to the aversions of a lawless society. There is a drastic disparity between reality and imagination. The latest advancements by the international community in outer space is a symbol of anarchy in the international arena. The future conflicts (that can be imagined wildly) beckons for the need of metamorphosis of the legal regime for the vast expanse. The laws are technical and are developed by the power dynamics subsisting among the subjects of such laws.[2] To avoid the horrendous manifestations of obscure legal forces, we must align with the idea of building the legal sphere of outer space.

International Space law has five treaties as its kernel. There are other five legal principles and declarations as to the prime source for international Space Law.[3] The custom and general practice are also considered as a source of international space law.[4] Then, there are national laws of countries who have ratified treaties in connection to international space law. The 1963 Outer Space Treaty is a lex generalis in the context of international space law. ‘There are also a number of non-binding U.N. resolutions that have been passed by the General Assembly that apply to space.’[5] The Manfred Lachs, founder of Space law indicates that any activity carried out in regard to space or any celestial body will be subjected to international law.[6] Appending to the development of International space law, Professors, Glenn H. Reynolds and Robert P. Merges exhibit that a large number of areas of terrestrial law are relevant to outer space such as the law of torts, contracts, communications law, international trade law, commercial law, and intellectual property law. This highlights the significance of policy choices (emphasis added) for the enrichment of legal doctrine relating to outer space.[7]

The Obscure Jurisdiction: Rendering the questions related to jurisdiction unanswered.

International Air and Space Law is vast expanse filled with intricacies owing to its underdevelopment. Scholars of international air and space law relish the blossoming Law of the Seas. Many scholars have compared the demarcation of waters and thus throw light on the necessity of the demarcation of the spatial area. Dr. Oduntun suggests the delimitation of the spatial area is necessary to avoid any menacing disputes which may arise due to the lack of specification of the same. Since the laws dealing with spatial spaces are different i.e. air and space law. Many scholars accentuate the need to demarcate both the spatial areas.[8] Functional theory on International air and space law states that outer space can be deemed to exist from the artificially created condition of space on earth itself, hence it distorts the attempt to demarcate the spatial area into the air and space. Scholars put emphasis on the need of a formula that classifies the air space separately from the outer space as done for territorial waters, contiguous zones, high seas by the law of the seas. Senior Lecturer of Kent Law School provides a formula that Air Space shall be delimited at 55 miles from the Earth and Outer Space starts from 100 miles above the Earth. The range between 55 and 100 miles will be considered as the contiguous zone of the spatial area.[9] However, the predicament with this demarcation is that it relies on the presumption that the earth has a leveled surface. This theory is hushed on the distance from the sea bed. If any treaty is proposed to demarcate the air space and outer space by the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), then such anomalies and ambiguities should be resolved.

Another approach to simplify the jurisdiction of Air and Space law is by designating a propelled vehicle as Spacecraft or Aircraft.[10] Professor Stephen Hobe suggests that an aircraft is registered under Chicago Convention and spacecraft is registered under Convention on Registration of Objects Launched into Outer Space.[11] He insinuates that spacecraft is governed by space law only and the aircraft which carries it into space is governed by Air law till its separation.[12] The idea for designated jurisdiction proposed by Hobe relies upon the entity involved and therefore supports functional theory indirectly. The vagueness in the jurisdiction of air and space law still summons the attention of the UN and space tycoons to resolve such issue.

Blooming Space Technologies and emerging realm of Anarchy

In the era of globalization, Acknowledging the enhanced choices and its diversity which is offered to the consumers by capitalist enterprises, outer space has also become a part of these diverse choices and is no more an area of exception to the capitalist ventures. Space tourism is a domain in dire need of development and calls for the development of air law and space law for the flourishing the same. Professor Stephen Hobe in his article pointed out the necessity to develop international space law to govern space tourism.[13] He had put emphasis for defining the liability of the stakeholders, he pigeonholed the liabilities, pointed out the involvement of tortious liability in the form of gross negligence and he projected the need of law for the safety of space tourist. On the same lines, Tanvi Mani in her article addressed the issue of safety of space tourists. She begins by interpreting Article V of Outer Space Treaty which describes professional Astronauts as “envoy of mankind”, which provides them with special rights.[14] These exclusive rights include the right to be rescued under the 1968 Rescue Agreement.[15] and it also focuses on the rescue of personnel and assistance to be provided to an astronaut, However, it is unclear if that right to rescue is available to a space tourist. We have also come across the problematic stance of US legislation and the International Space Station participants make an explicit distinction between Astronaut and Spaceflight Participants, which fortify the view that the 1968 Rescue Agreement doesn’t apply to the latter.[16] As correctly opined by the scholars, a human in distress makes him eligible to be fit into the category of “envoy to mankind”. The scholars also propose the international corporation for the rescue of the space tourists and also reinforces the idea of making it an international obligation. In opposition to this idea, Tanvi Mani argues that the ‘rescue operation’ being conducted by a non-benefitting nation from space tourism (other than the nation enjoying commercial benefits of space tourism) makes such obligation, to rescue, an unfair expectation. Naturally, the accidents are unforeseen. This prima facie unfair obligation of anticipated help can be subsided, if the benefiting nation conducting space tourism promises to pay compensation to the rescuing state. taking into account all the technicalities involved in this one commercial space activities, such obscurities can be addressed by the scrupulous articulation of space law. Taking into Consideration, article 31 of the 1969 Vienna Convention on the Law of Treaties, reinforces the interpretation of International law should be done in good faith and in the light of object and purpose.[17]

Are developments in the sphere of outer space are capitalist in nature?

Marxist scholars on international law agree that the economic disparity and technological gap between developed and developing nations renders the outer space as inaccessible for the third world.[18] A layman also cannot refute the reality of economic disparity. The principles of Justice, equity and good conscience seem alien to the outer space, because of unequal access to the same. The tri-principles seem comprehensively inculcated in the Outer Space Treaty but still doesn’t resolve the issues related to economic disparity or space junk. All the commercial and recreational endeavors are being conducted by the individuals of rich countries is evidence enough of unequal access. The inequality is being increased by the creation of debris. The creation of debris poses the same challenge to the regime of outer space. It’s time for the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS)[19] to start functioning as a governing and active body. They can form a committee to ensure equity and justice to the third world countries, to provide them the funds, technological access as was being demanded by the Bogota Declaration. United Nations COPUOS can also seek the assistance of the International Law Commission for the comprehensive growth and punctilious articulation of International Space Law.

The 1967 Outer Space Treaty declares the outer space to be the “common heritage of mankind”[20]. The doctrine of res communis prevails over the outer spaces but the realities of the present times negate the doctrine. The Outer Space Treaty restricts the military activities in space and bereft the nations and individual of the property rights over celestial bodies, particularly the moon. Thus, acts as lex generalis. ‘Strides in technology as well as the evolution of the socio-political and economic environment makes the treaty [on outer space] more of a hindrance than a safeguard.’[21]There have been many instances of space activities which called in for the need of expanding the space laws and its application. The existing perplexities of legal doctrine in outer space do not pertain to the dispute that may arise out of the latest developments. These latest advancements cover the instances such as selling of the land on the moon.[22] The defense this enterprise takes is that “though the moon agreement declares the moon to be a common heritage of mankind, this agreement was never ratified by various countries”. The conviction of common heritage has been squandered. Therefore, as rightly pointed out by Listner, the international space law should resolve the disarray of property rights on celestial bodies. Interpreting the Article VI of the Outer Space Treaty which states “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. When activities are carried out in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization”.[23] This provision suggests scope for the incorporation of such commercial activities in the outer space including space tourism. The international community can follow either of the formulas, it can either entirely boycott the existing provisions of Outer Space Treaty which is encumbering the advancements in outer space or the formula which allows questioning the authorization of State to such commercial endeavors which refute the doctrine of res communis, the objection can be placed by taking into account the common right of the international community over outer space (Article I of Outer Space Treaty). Hence, the absence of an explicit provision in regard to activities carried out by non-governmental entities in outer space makes article IV, an ambiguous provision in contemporary times.

‘Space activities are essentially high technology, which is capital intensive and high risk (ultra-hazardous), yet “international” activities, which, as a general rule, the developed nations are readily best placed to engage in, because they are endowed with both high technology and capital, and can well afford to employ them without seriously distorting their national economies’.[24] For example, Bogota Declaration[25] comprising of equatorial states (Brazil, Kenya, Columbia, Congo, Ecuador, Indonesia, Uganda and Zaire), projected towards the unjust practices of developed countries for occupying the whole space on the name of infinite space projects and missions. The declaration’s primary concern is that by the time those developing countries will attain the capability of launching their satellites, the outer space will replete by the satellites of various countries’ satellites and space debris. Thus, rendering the third world countries incapable of ever attaining self-sufficiency in space technology. The international lawyers, in order to address this issue, should focus on expanding the scope of Article III of Outer Space Treaty. The other solution suggested by the Bogota Declaration is to provide them sovereignty over a separate satellite orbit (Geostationary Orbit), which is against the principles of Outer Space Treaty (OST). Thus, challenging the legitimacy of OST.

National Space Law and its Necessity

India is bolstering its space technology and striving to be recognized among the group of elite nations and hence can be regarded as an ideal example to understand the need of national space laws. India has never turned its back after launching its first satellite Aryabhatta-1[26], it was successful in launching Moon (Chandrayaan) and Mars Mission (Mangalyaan or Mars Orbit Mission (MOM)) in 2008 and 2014 respectively. Now, it’s another space mission, Chandrayaan-2 it is going to station its rover in the south pole of the moon by September 2019, the launch of Chandrayaan-2 is an awaited event for all the Indians.[27] After the introduction of Polar Satellite Launch Vehicle (PSLV) which has an envious record of 46 launches and Geosynchronous Satellite Launch Vehicle (GSLV) is developing its MkIII technology. After this, India is the seventh nation in the world to have indigenous satellite launch capabilities. India has become the fourth country in the world to have its own system of satellites and positioning systems, Navigation with Indian Constellation (NavIC).[28] NavIC provides the capability of positioning with greater accuracy until 1500 km beyond the borders. The NavIC was followed by GPS-aided GEO augmented navigation (GAGAN), a joint project of ISRO and Airport Authority of India, it focused on improving the navigation in the air and better management of air traffic. It was a proud moment for India when ISRO launched 104 satellites in a single flight.[29] All the launches so far have been manufactured and controlled by the government but it was during this launch that government of India outsourced the manufacturing of some of the parts of its satellites to a private company through contract. Alpha Design Technologies won this contract for manufacturing two full satellites for India’s indigenous navigation system. The idea of outsourcing is great and it is a popular practice now, but there is no concrete law which deals with space-related activities of India. The PSU’s (Public Sector Undertaking) such as Hindustan Aeronautics Limited, Mishra Dhatu Nigam Limited, and Bharat Electronics Limited are the best ally of ISRO, the giant private entities such as Larsen and Toubro, Godrej and Walchandnagar Industries. However, most of the private sector players are Tier-2/Tier-3 vendors are Tier 2/3 vendors for ISRO.[30] There is no law that would deal with any kind of liability arising out such ventures of launching or outsourcing. The Liability Convention of 1972 and Article VI and VII of Outer Space Treaty stipulates the liability on the faulty party if any damage caused to any country occurred by the activity of one nation. It also proposes the payment of compensation to the aggrieved nation. The quantum of compensation can be calculated through the domestic law on outer space, thus highlights the need for ratification of five International Space Law Treaty. Currently, there are only 24 nations including the nations such as Canada, Ukraine, Republic of Korea, which are not space tycoons but have cemented their legal framework related to space activities. India can use this self-sufficiency and technological proficiency to benefit its economy but in order to do so, it will require a concrete legal framework. India has taken baby steps towards concretizing its regime of space law by using Article 51 and 73 of the Constitution of India, it has the Satellite Communications Policy, 2000 and the revised Remote Sensing Data Policy, 2011. The draft Geospatial Information Regulation Bill, 2016 was another step towards concretizing the Indian Space Act.[31] In the 2019 budget session of Indian Parliament, the Department of Space has been allocated a budget of around 12,000 crores (from 6,000 crores five years ago) to facilitate the growth of space business.[32] The Department of Space of India or any other nation can appoint a committee to prepare a draft of the law. The domestic space law will act as a catalyst for the international community to participate in the dynamic space activities. It will empower a sovereign nation to police, publish, access geospatial information, regulate intellectual property rights over their technology and resources, it will make outsourcing the work related to outer space smooth. The concrete law will make it easier for the nations to quantify the liability if imposed, the protection of commercial interest on a nation will be met and national security can be strengthened by avoiding any sort of conflict by making a domestic space law. The domestic space law will back up the Space endeavors with aspects related to contracts, property transfers, registration, stamp duty, insurance, and intellectual property rights in regard to space technology. The need to ratify international space treaties and domesticate space law is the need of the hour. Another issue that can arise in a situation that if different parts of spacecraft are manufactured in different jurisdictions of different states and that spacecraft damages spacecraft of another country, then the question arises is that liability will be stipulated in the law of which country. The product liability (deals with the manufactured products on space-related objects)[33] will be imposed over which state.

Government of India’s flagship programs such as Digital India, Start-up India which provide support to MSMEs, Skill India, the advancement of Artificial Intelligence and Big Data Analytics has made the environment conducive for the growth of Start-ups. There are various space-related start-ups burgeoning without any regulatory mechanism. After draft Space Activities Bill introduced in 2017[34] has lapsed, the government can prioritize the growth of the private sector in this field. The start-ups are mushrooming in the state of anarchy, India should come out with a legal framework before the budding ventures start following the lines of anarchism[35]. The space industry’s net worth is $350 billion and still growing. ISRO owns 2 percent of this entire business. There is no regulatory body to look after it. Having indigenous satellite is considered as self-sufficiency because it bestows the nation with various capabilities such as mapping and planning of earth, observing the agricultural lands, tabulating the level of groundwater, weather forecasting, natural disaster foretelling, forestry management, seeking geographical information and many others. ISRO is currently utilizing all of these facilities. There should be a mechanism and guidelines to reveal these kinds of information to any official or enterprise. ISRO has its own private limited company, Antrix to market its products. Antrix provides an interface to private companies for transfer of technologies. This should be regulated by the laws or a statutory body to avoid any dispute. China has made it progress in space endeavours through an exemplary public-private partnership. The business tycoon, involved in success of Chinese space endeavours is expanding their business by selling out their expertise in this field.

Communication in outer space is one of the remarkable developments of space technologies. To facilitate the better functioning of communication in outer space, it requires the growth of better infrastructure, currently, other countries are looking forward to augmenting the technological advancement in this field. The USA is carrying out numerous space research projects to strengthen its communication in Outer Space[36] which includes projects such as Deep Space Optical Communications (DSOC), Interplanetary Optical Communications, Reconfigurable Wideband Ground Receiver, Channel coding, Image Compression, and many more. Therefore, it is expedient to grow concrete laws to govern the developments. India is maximizing its efforts by planning space launches and applaudable development in the same field. Following which India has announced its plan to launch Indian Space Station. The mission is going to be the extension of Gangayaan mission.[37]

This publication is a part of a two-part series by the author. The second part will be released the following week.

About The Author

This article is written by Lovika Jaiswal. She is a final year student of LL.B. at Campus Law Centre.

        References

  1. The Purge: Movie Series, (2013, 2014, 2016, 2018), https://www.rottentomatoes.com/m/the_purge_anarchy_2014/

  2. James Grimmelmann, Anarchy, Status Updates, and Utopia, 35 PACE L. REV. 135 (2014). 

  3. International Space Law: United Nations Instrument, United Nations Office for Outer Space Affairs, ST/SPACE/61/Rev.2 (2017), http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html

  4. Leo B. Malagar; Marlo Apalisok Magdoza-Malagar, International Law of Outer Space and the Protection of Intellectual Property Rights, 16 WORLD BULL. 52, 75, (2000). 

  5. Henry Hertzfeld, Current and Future Issues in International Space Law, 15 ILSA J. INT’L & COMP. L. 325 (2009). 

  6. Manfred Lachs, Tanja L Masson-Zwaan and Stephan Hobe, The Law Of Outer Space (Martinus Nijhoff Publishers 2010). 

  7. Glenn H. Reynolds & Robert P. Merges, Outer Space: Problems of Law and Policy. 349. (Westview Press) (1989). 

  8. Stephen Hobe and Jiirgen Cloppenburg, Towards a New Aerospace Convention? -Selected Legal Issues of ‘Space Tourism’, 47 PROC. COLL. LAW OF OUTER SPACE 377 (2004). 

  9. Dr. Gbenga Oduntan, Air Law & Space Law: spatial delimitation between airspace & outer space 

  10. Defined by 1980 Convention on International Civil Aviation as “all machines which can derive support in the atmosphere from the reactions of the air”, UNTS 295, Annexes 6-8, ICAO Doc. 7300 / 6 (1980). 

  11. Adopted by the General Assembly in its resolution 3235 (XXIX), (opened for signature on 14 January 1975, entered into force on 15 September 1976). 

  12. Stephen Hobe, Aerospace Vehicles: Questions of Registration, Liability, and Institutions – A European Perspective, XXIX ANNALS OF AIR AND SPACE LAW, 377 (2004). 

  13. Stephan Hobe; Geradine Meishan Goh; Julia Neumann, Space Tourism Activities – Emerging Challenges to Air and Space Law, 33 J. SPACE L. 359, 374 (2007). 

  14. Tanvi Mani, The Applicability of the Norms of Emergency Rescue of Astronauts to Space

    Tourists, 7 KING’S STUDENT L. REV. 28, 39 (2016). 

  15. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, (opened for signature on 22 April 1968, entered into force on 3 December 1968). 

  16. Dr. Dionysia-Theodora Avgerinopoulou & Katerina Stolis, Current Trends and challenges in International Space Law, http://www.essc.esf.org/fileadmin/user_upload/essc/Article_Current_Trends_and_Challenges_in_Space_Law.pdf

  17. UN, Vienna Convention on the Law of Treaties, Vienna: United Nations-Treaty Series, 115, 1- 18232, (1969). 

  18. B. S. Chimni, Marxism and International Law: A Contemporary Analysis, 337-349, Economic and Political Weekly, 34, No. 6 (Feb. 6-12, 1999). 

  19. Committee on the Peaceful Uses of Outer Space: 2019, http://www.unoosa.org/oosa/en/ourwork/copuos/2019/index.html.↑

  20. Article 11 (5) of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, (opened for signature on 18 December, 1979, entered into force on 11 July 1984). 

  21. Michael J. Listner, It’s Time to Rethink International Space Law, (May 31, 2005), http://www.thespacereview.com/article/381/1. ↑

  22. Moon Land Available, http://www.lunarlandowner.com/ (Last Visited 6 Feb 2021) 

  23. 2222 (XXI). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, (opened for signature on 27 January 1967, entered into force on 10 October 1967), http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html

  24. V.S. Mani, Space Policy and Law in India and Its Relevance to the Pacific Rim, 35 J. SPACE L. 615, 634 (2009). 

  25. 4th Global Conference on Big Data for Official Statistics in Bogota, Colombia, (8-10 November 2017), https://unstats.un.org/unsd/bigdata/conferences/2017/Bogota%20declaration%20-%20Final%20version.pdf

  26. V.S. Mani, Space Policy and Law in India and Its Relevance to the Pacific Rim, 35 J. SPACE L. 615, 634 (2009). 

  27. Report on Chadrayaan 2, https://www.isro.gov.in/gslv-mk-iii-chandrayaan-2-mission (Last Visited 6 Feb 2021) 

  28. Indian Regional Navigation Satellite System (IRNSS), with an operational name of NAVIC, is a group of 7 satellites (final launch in Apr 2018). 

  29. Department of Space ISRO, PSLV-C37 Successfully Launches 104 Satellites in a Single Flight, (Feb 15, 2017).

  30. Rakesh Sood, Expanding India’s share in global space economy, (Jul 5 2019), https://www.thehindu.com/opinion/lead/expanding-indias-share-in-global-space-economy/article28286469.ece. ↑
  31. Senjuti Mallic ,Why India needs a space law, The Hindu (Jun 19, 2017), https://www.thehindu.com/opinion/open-page/why-india-needs-a-space-law/article19094453.ece

  32. Indian Government Budget session, (Jul 5, 2019), https://economictimes.indiatimes.com/news/economy/policy/budget-2019-marginal-hike-in-budgetary-allocation-for-department-of-space/articleshow/70096152.cms

  33. P. P. C. Haanappel, Product Liability in Space Law, 2 HOUS. J. INT’L L. 55, 64 (1979). 

  34. Department of Space, Government of India, (2017), https://www.prsindia.org/sites/default/files/bill_files/Draft%20Space%20Activities%20Bill%202017.pdf 

  35. a political theory holding all forms of governmental authority to be unnecessary and undesirable and advocating a society based on voluntary cooperation and free association of individuals and groups, https://www.merriam-webster.com/dictionary/anarchism

  36. Jet Propulsion Technology, https://scienceandtechnology.jpl.nasa.gov/research/research-topics-list/communications-computing-software/deep-space-communications 

  37. Mission Gangayaan: A Manned Space Mission of ISRO, (Dec 3, 2018,) https://www.mapsofindia.com/my-india/government/mission-gangayaan-a-manned-space-mission-of-isro 

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