R. Venkata RaoV. GopalkrishnanKumar Abhijeet Editors

Recent Developments in Space LawOpportunities & Challenges

Recent Developments in Space Law

R. Venkata Rao • V. GopalkrishnanKumar AbhijeetEditors

Recent Developmentsin Space LawOpportunities & Challenges

123

EditorsR. Venkata RaoNational Law School of India UniversityBengaluru, KarnatakaIndia

V. GopalkrishnanIndian Space Research OrganisationBengaluru, KarnatakaIndia

Kumar AbhijeetNational Law School of India UniversityBengaluru, KarnatakaIndia

ISBN 978-981-10-4925-5 ISBN 978-981-10-4926-2 (eBook)DOI 10.1007/978-981-10-4926-2

Library of Congress Control Number: 2017946046

© Springer Nature Singapore Pte Ltd. 2017This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or partof the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations,recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmissionor information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilarmethodology now known or hereafter developed.The use of general descriptive names, registered names, trademarks, service marks, etc. in thispublication does not imply, even in the absence of a specific statement, that such names are exempt fromthe relevant protective laws and regulations and therefore free for general use.The publisher, the authors and the editors are safe to assume that the advice and information in thisbook are believed to be true and accurate at the date of publication. Neither the publisher nor theauthors or the editors give a warranty, express or implied, with respect to the material contained herein orfor any errors or omissions that may have been made. The publisher remains neutral with regard tojurisdictional claims in published maps and institutional affiliations.

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Foreword

Space, the ultimate frontier of Earth, has been ushering in new opportunities for thebenefit of humankind, with the rapid pace of technological developments. Over sixdecades of Outer Space activities, today, the space-based services play predominantroles in the areas of communication, remote sensing, navigation and furtherdownstream applications in civilian, commercial and national security domains.The humanity depends on space-based services in some form or other, regardless ofeconomical, geographical or political status.

Advanced space systems, besides offering novel application potentials, do posemany challenges to space operations for peaceful purposes. Emerging trends ofsmall satellite constellations replacing conventional class of satellites is a case inpoint, with regard to orbit/spectrum, space debris and space traffic managementissues. Space tourism, celestial mining and space habitat are a few offshoots of theemerging scenario of space activities. Uncontrollable growth of space debris hasbeen posing serious challenges to space objects and needs to be addressed throughinnovative technological means, supported by the cooperation of all space-faringnations.

Outer Space, the “Province of all mankind” as promulgated by the Outer SpaceTreaty, which was formulated by the United Nations Committee on Peaceful Usesof Outer Space (UNCOPUOS), fifty years ago, has to be sustained for furtheringscientific exploration and utilizing the potentials of Outer Space for the benefit ofglobal community.

With the participation of more number of players in space activities and services,the situation of Outer Space affairs is becoming more complex. Transparency andbuilding of mutual confidence among space-faring nations on their space activitiesis very pertinent. Long-term sustainability of Outer Space activities for peacefulpurposes needs to be ensured through international cooperation.

Changing trends of space activities, from exploration of space to exploitation ofspace resources, does attract participation of private sectors for potential com-mercial opportunities. Whether the existing legal regime under the UN Treaties onOuter Space activities, adequately facilitate such non-governmental space activities,whether or they need to be amended or whether additional legal instruments to be

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formulated etc., are the questions, that need to be addressed by the internationalSpace Law fraternity.

In this context, the conduct of the “International conference on RecentDevelopments In Space Law—Opportunities & Challenges” by the National LawSchool of India University (NLISU), as part of the Asia Pacific Regional Rounds ofManfred Lachs Space Law Moot Court Competition on 07 May 2016, is quite apt.The papers that were presented by the eminent speakers in Space Law cover a widerange of topics. The publication of the proceedings of this conference is animportant contribution by NLSIU for research scholars and Space Law enthusiasts.Undoubtedly, this publication would serve as a resource material to understandcontemporary legal issues and developments in Space Law.

I wish to appreciate the efforts of National Law School of India University(NLSIU) in general and Prof. (Dr.) R. Venkata Rao, Vice-Chancellor of NLSIU inparticular, for supporting the initiatives of Indian Space Research Organisation(ISRO), in capacity building in Space Law.

Bengaluru, India A.S. Kiran KumarChairman, Indian Space Research Organization,

Secretary, Department of Space

vi Foreword

Preface

The world has progressively moved from space race to space commerce, and OuterSpace has opened myriads of opportunities for mankind. With advancement intechnology, access to space is rapidly increasing. For economic opportunities,strategically many nations have entered into the exploration and use for OuterSpace. There is already a substantial body of treaties and municipal laws governingspace activities, but technology is placed much ahead. With advancement intechnology and commercialization of space, legal issues have also gained popu-larity and throw a challenge as to how space can be used for the benefit of all.

Space activities have gained tremendous popularity over the last decade—fromlaunching of space objects to satellite application and planetary explorations.Satellite navigation, remote sensing and telecommunication have become integralpart of terrestrial modern infrastructure. The advent of private players in this fieldhas not only given it a new impetus but has also raised umpteen legal issues forpreponderance. How do space-faring nations shield their international liabilityagainst the increasing “public liability for private activities”? With booming spacecommerce, issue of space insurance and alike is inexorable. Is increasing depen-dence on space for military activity a threat to international peace and security? Ona global forum where there are no boundaries in space, challenges are manyfold andopportunities infinite. The real estate business orbit—the geostationary orbit isincreasingly getting populated. For posterity and benefit of all, it is necessary thatthese orbits be protected, knowing that space has a fragile environment andincreasing debris is further escalating its vulnerability. In the light of this issue,whether space tourism is advisable? Humanity has witnessed two world wars. Canwe afford a third space wars? ASATs (anti-satellite weapons) have raised yetanother plethora of discourse. During the initial years of space exploration, theCommittee on the Peaceful Uses of Outer Space (COPUOS) set up by the GeneralAssembly successfully came up with five major treaties. However, since the MoonTreaty no further Treaty has been created; rather an era of non-binding Resolutionhas started. With increasing space activities, lawmakers need to keep up with thetimes, and alternatives to conventional lawmaking process must be explored.

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Recent space activities have generated much discourse within the internationalcommunity. Realizing the sensitivity of above-mentioned issues, a one-day inter-national conference on the theme “Recent Developments in Space Law—Opportunities & Challenges” was held at National Law School of India University(NLSIU), Bengaluru, in May 2015. As the theme conveys, the topics for discus-sions were to be focused on Recent Developments in Space Law. Hence, eminentspeakers from different parts of the globe were requested to choose a topic of theirchoice under this purview. This approach gave excellent results, as the speakersresponded with highly suitable topics, which are very relevant to the current sce-nario of international space activities.

This book is the intellectual progeny of this conference—a compendium ofselected essays written by experts in the field of Space Law, reflecting upon theemerging legal issues in Outer Space. The views expressed are personal views ofrespective authors, written in their own style, sharing insightful ideas which, in theirdiversity, will live up to the expectations of the readers.

The book has comprehensively touched upon opportunities in space and theinevitable legal challenges that these space activities pose to mankind. Technologyalways has a much faster pace than law. But with regard to space activities it is hightime the various legal issues are addressed. An unregulated technology could turnout to be an unruly horse that will lead the world to disaster.

We hope this publication would serve as a useful source for students, researchersand professionals to understand the contemporary issues and developments inSpace Law. We would like to thank NLSIU, Indian Space Research Organization,and TMT Law Practice, New Delhi, for supporting the conference. Our sinceregratitude to the esteemed authors for their scholiastic contribution and profusethanks to Springer for publishing the work.

Bengaluru, India R. Venkata RaoV. GopalkrishnanKumar Abhijeet

viii Preface

Contents

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1R. Venkata Rao and Kumar Abhijeet

Select Tenets of Space Law as Jus Cogen . . . . . . . . . . . . . . . . . . . . . . . . . 7G.S. Sachdeva

Trends in Outer Space Activities—Legal and Policy Challenges . . . . . . . 27K.R. Sridhara Murthi and V. Gopalakrishnan

International Space Governance: Challenges for the Global SpaceCommunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43Eligar Sadeh

New Laws for New Space? Using Law Reform to Drive CommercialSpace Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61Melissa de Zwart

Commercial Human Space Flight: Adequacy of the InternationalLiability Regime Governing Suborbital Space Tourists . . . . . . . . . . . . . . 75Jessica Los Banos

Increasing Militarization of Space and Normative Responses . . . . . . . . . 91Dale Stephens

Scavenging of Space Objects for Recycling . . . . . . . . . . . . . . . . . . . . . . . . 107Martha Mejía-Kaiser

Towards a Legal Regime for the Protection of Space Assets . . . . . . . . . . 117Manimuthu Gandhi

Arms Control in Outer Space: ASAT Weapons . . . . . . . . . . . . . . . . . . . . 129Kumar Abhijeet

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European Space Policy Institute’s Comprehensive Analysis onAdopting New Binding International Norms Regarding SpaceActivities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141Anja Nakarada Pecujlic

x Contents

About the Editors

R. Venkata Rao is a Professor of Law and Vice-Chancellor of the National LawSchool of India University, Bangalore. Prof. Rao has more than 31 years ofteaching experience and has received several awards such as the “BestVice-Chancellor Award for outstanding contribution to education” during theWorld Chancellors and Vice-Chancellors’ Congress in 2014, the “Best TeacherAward” from the Government of Andhra Pradesh in 2006, the “Best ResearcherAward” from Andhra University in 2003 and a Gold Medal for the best Ph.D.thesis. His primary areas of research are human rights, humanitarian law andcriminal justice. He has published extensively (more than 120 papers) in journals ofnational and international repute.

V. Gopalakrishnan is a Policy Analyst (Space Law & Policy) with the IndianSpace Research Organisation (ISRO), Bangalore. His professional experience ofover twenty-five years at the ISRO includes a good blend of techno-managerial andlegal aspects pertaining to satellite projects and international cooperation in OuterSpace activities. He has been a member of the Indian delegation to Legal SubCommittee meetings of UNCOPUOS (the United Nations Committee on thePeaceful Uses of Outer Space), and has participated in international consultationson the “UNIDROIT Space Assets Protocol”, a Code of Conduct for the long-termsustainability of Outer Space activities, legal aspects of space security, legal aspectsof space debris management, etc. He is also a Fellow of the Institution of Engineers(India) and member of International Institute of Space Law.

Kumar Abhijeet works as Assistant Professor at the National Law School of IndiaUniversity, Bangalore. He was Linnaeus-Palme fellow at Royal Institute ofTechnology, Stockholm (Sweden); Erasmus Mundus fellow at Department ofPublic International Law, Gent University, (Belgium); participant of the programme“50 Years of Space Law – Space Law in 50 Years” conducted by the Centre ofResearch and Studies at the Hague Academy of International Law (TheNetherlands). Kumar is also a Research Scholar at the Institute of Air and Space

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Law, University of Cologne (Germany). He was twice awarded the best paperpresentation at international conferences. He has quite a few publications to hiscredit in prestigious journals and has contributed chapters in edited books too.Kumar is a member of the International Institute of Space Law (IISL), Paris and isalso member of International Law Association (India Branch).

xii About the Editors

Introduction

R. Venkata Rao and Kumar Abhijeet

Since 1957 when the first man-made object traversed into Outer Space, much rockethas roared into the cosmos. With increasing technological capacity to access space,opportunities for mankind have been widening. In today’s time where spaceactivities are escalating by leaps and bounds, international Space Lawmaking hascome to standstill and galaxy of legal issues are orbiting. Beyond the five spacetreaties, no new treaties have come into existence till date rather a plethora ofnon-binding Resolutions have come. It reflects that states are interested only inreaping the benefits of space and not ready to take up responsibility. How couldmankind be suffering from myopic vision that it cannot even feel the wrath ofuncontrolled exploitation of resources on the Earth—Climate change? Canhumanity afford to make heaven as yet another garbage bin? If we have not learntfrom our forefather’s mistakes, if we have not learnt from our own mistakes, if wehave not enlightened our children, we are bound to repeat this mistake.

Article IV of the Outer Space Treaty has significantly ensured that Outer Spaceis used for peaceful purposes. It prohibits stationing of nuclear weapons or anyother kind of weapons of mass destruction in orbit or on celestial bodies. It prohibitsthe establishment of military bases, installations and fortifications, the testing of anytype of weapons and the conduct of military manoeuvres on celestial bodies. Butthe Paradox of Article IV is though it prohibits stationing of weapons in space, itdoes not prohibit actual use of weapons, which is a concern for all. Moreover, todaynew technologies have gained prominence in a nation’s military and defence pur-pose. Gulf war of 1990/1991 was the first war that made use of space technology,and ever since then space technology has had an increasing importance on terres-trial warfare.

According to NASA, as of today around 500,000 pieces of debris, the size of amarble in orbit, are travelling at a minimum speed of 17,500 mph. ASAT test has

R.V. Rao � K. Abhijeet (&)National Law School of India University, Bengaluru, Indiae-mail: kumarabhijeet@nls.ac.in

© Springer Nature Singapore Pte Ltd. 2017R.V. Rao et al. (eds.), Recent Developments in Space Law,DOI 10.1007/978-981-10-4926-2_1

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feared that it has not only triggered the arms race but endangered space activitiesthrough the production of long-lasting space debris. Debris is a major concern forsafe exploration of space. 1957 was the birth of space age but let us not move togarbage. Humanity has witnessed two world wars. Can we afford third “star wars”?

The real estate business orbit—the geostationary orbit is increasingly gettingpopulated. For posterity and benefits of all, it is necessary these orbits be protected.Gone are the days when satellites used to be large-sized artificial objects floating inspace. In the nano-age, we have satellites less than 10 cm weighing between 1 and10 kg popularly termed as cube satellites. Pico satellites are expected to be less thaneven a kg. Spectrum allocation and interference with signals has been a concern forglobal community. Thus, small satellites are yet another concern.

When almost nothing is left for “digging down, we are looking up”. Even beforemining of celestial bodies has become operational it has led to international dis-course. Does it hint for developing international legal regime on regulation ofexploitation of resources from Outer Space?

Today Outer Space is no more a venture of competition but a necessary resourcefor building terrestrial infrastructure. Communication, weather forecasting, militaryactivities, defence system, navigation, etc., even space tourism are no more sciencefiction but rather an economic resource. Companies like Virgin Galactic, Space X,Bigelow Aerospace and others are working day and night to make at least subor-bital tourism operational. With Dennis Tito (first male space tourist), AnoushehAnsari (first female space tourist) and many others, the ball is already set in motion.The world has moved on from “space race” to space commerce. Effective spacegovernance itself is a challenge for the world community where the interests arediverse and opportunities infinite. New laws are the need of the hour not only at theinternational arena but also at the domestic fora.

The book contains ten scholarly articles written by experts from different parts ofthe globe. The second paper “Select Tenets of Space Law as Jus Cogen” written byDr. G.S. Sachdeva moots upon the universal applicability of space treaties. In hispaper, he argues that the Outer Space Treaty does not bind all countries of the worldnor new states get obliged to provisions of Space Law unless obligations of theMember States are specifically acknowledged. He suggests that since InternationalLaw has its jus cogens as peremptory norms binding on all states, it is desirable toselect and evolve some precepts of Outer Space Treaty as Jus Cogens of SpaceLaw. To attain this status, the selected principles need to be “lobby-ed” for opinionjuris of Space Law scholars. He concludes that in this way Jus Cogens of SpaceLaw would act as peremptory norms with supervisory status to govern spaceactivities and regulate interstate relations and human conduct in Outer Space so asto command universal obedience and strict compliance.

The third paper “Trends in Outer Space Activities—Legal and Policy Challenges”is jointlywritten by Prof. K.R. SridharaMurthi andMr. V. Gopalakrishnan. The paperexplains the dangers of increasing dependence on Outer Space and calls for renewedapproach to policy making and revitalization of international and national instru-ments. It analyses the legal and policy challenges from three perspectives—role ofOuter Space as a driver of economy, as an instrument of security and as a means for

2 R.V. Rao and K. Abhijeet

exploring future destiny of human race by considering multiple dimensions of OuterSpace activities involving spacecraft, space transport systems, space operations,investment trends, issues relating to security, space environment and governance.

Fourth paper “International Space Governance: Challenges for the Global SpaceCommunity” is written by Dr. Eligar Sadeh. He has expressed that internationalspace governance is essential to realize all the benefits that space assets and hasscrutinized the challenge therein for the global space community. He has high-lighted that sustainable and peaceful use of Outer Space demands collective action.He has illustrated this by explaining problem of orbital debris and data coordinationin case of Earth observation. Strategic stability in the space domain on the basis ofsustainable uses of space as a shared strategic goal among space actors is yetanother challenge highlighted by him. He concludes that the Outer Space Treatylacks formal institutional mechanisms to promote international governance for thepeaceful uses of space, to monitor compliance and to make collective decisionsabout the application of rules. Space governance requires being addressed moreformally in law having inherent mechanism for self-restraint and self-regulation thatwould comprehensively address the challenges of collective action and strategicassurance.

Prof. Melissa de Zwart in her scholarly paper “New Laws for New Space? UsingLaw Reform to Drive Commercial Space Initiatives” has made a case study ofAustralia as a launching state to explore how law reform may drive the develop-ment of a commercial space industry. Her paper considers the use of domestic laws,and the consequent need for law reform, to encourage broader engagement withcommercial space innovation. It considers, in particular, the Review of the SpaceActivities Act 1998 currently being undertaken in Australia, which examineswhether existing legislative arrangements “provide an appropriate balance betweensupporting emerging commercial opportunities and ensure Australia meets itsinternational obligations for the use of space”.

With rapid technological advancement, it is likely ordinary human beings mayget a chance to travel in space. The paper “Commercial Human Space Flight:Adequacy of the International Liability Regime Governing Suborbital SpaceTourists” written by Prof. Jessica Los Banos highlights the challenges in realizing aviable space tourism with focus on suborbital flights. She has highlighted theliability aspects of space tourism and explores the preparedness of existing liabilityregime, i.e. the 1972 Liability Convention, to protect the suborbital space tourist inthe event of space vehicle accident. She has also made a case study of the USA as tohow the USA complies with its international liability obligations with respect tosuborbital tourists. She is of conclusion that “space tourists have no effectiveremedy under International Law and must look to domestic law for protection.Moreover, the suborbital space tourism industry should be given operational spaceas it matures to enable the industry to transition from a risk sharing to a safetyliability regime to ensure maximum protection for suborbital space tourists”.

Military use of space is significantly increasing. Dr. Dale Stephens writes theseventh paper of the book “Increasing Militarization of Space and NormativeResponses”. This article examines the growing phenomenon of the increasing use

Introduction 3

of space for military activity and canvasses how International Law may apply tocondition behaviour. It also provides a brief review of informal lawmaking pro-cesses that are underway to address this problem. He explains the problem ofweaponization of space and principles relating to resort of force, reflects upon theadequacy of International Humanitarian Law on the given problem and acknowl-edges the rising of international legal manuals in the context of military warfare. Heespouses that given the difficulty of consensus on Treaty making on space issues,manuals may serve as an alternative, to check unbridled military activity andpreserve civilian use on earth as well in Outer Space. He observes that McGillManual jointly prepared by the McGill University and the University of Adelaide isa good attempt to set out the normative legal framework to restrain forceful actionsundertaken in Outer Space.

Undoubtedly, environment of Outer Space is much vulnerable and space debrishas been a major threat to the exploration of Outer Space. Dr. Martha Mejía-Kaiserin her paper “Scavenging of Space Objects for Recycling” highlights the problem ofcontamination of Outer Space. She addresses the challenges and opportunities inscavenging space objects from the graveyard orbit. She has expressed that “we areat the crossroads and need to start the discussion whether the jurisdiction andcontrol over space debris in graveyard orbits should be considered as expired, sothat we can explore the potential of space scavenging and recycling activities”.

The next paper “Towards a Legal Regime for the Protection of Space Assets”,Prof. Manimuthu Gandhi has expressed that international Space Law does not seemto have provided any clear-cut normative direction to States beyond stipulating thenature and scope of the use of Outer Space. Space debris exposes space assets to anumber of threats, which demand safety and security. Suggestions are made toaddress the issue by prohibiting the use of ASAT, by applying the agreed provi-sions off ABM treaties and also applying law of armed conflicts where possible. Heconcludes that a combination of hard and soft law complimented with nationalpolicies could be a possible legal regime to address the problem. Mr. KumarAbhijeet in his paper “Arms Control in Outer Space: ASAT Weapons” has reflectedupon the possible military use of space through ASATs that not only escalate theproblem of space debris but also has the potential to precipitate arms race in OuterSpace. His paper unfolds the role of UN in prevention of weaponization of spaceand examines the existing laws on arms control measures in Outer Space in the lightof ASATs and advocates for a Treaty prohibiting ASAT weapons.

Ms. Anja Nakarada Pecujlic’s paper “European Space Policy Institute’sComprehensive Analysis on Adopting New Binding International NormsRegarding Space”. Analyses the European Space Policy Institute report for thecreation of hard law norms in space domain. She has underlined that in areas thatare dominated by technical development and that have high national securityimplications, the Space Law community should not stop at soft law; where issuesare neither technically dynamic nor highly security-relevant, hard law creationshould be the ultimate aim. But even when rapid technical development is involvedand security sensitivity is present, it should not be assumed that soft law is the onlytool available.

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The contributors have provided a very useful insight on recent development inSpace Law. Thoughts expressed in this book are the thoughts of respective con-tributors and in no way they represent the thoughts of editors or the publishers orthe institutions with whom they are associated.

Introduction 5