The stupendous Indian space programme has been dynamically advancing since its inception on governmental support. To further enhance space capacity and capability, India is positively seeking active private sector participation. It is expected that by 2020 the Polar Satellite Launch Vehicle (PSLV) popularly known as ‘the workhorse’ of ISRO will be privatised. Privatisation of PSLV is just a beginning and in days to come private players will play a much more significant role.

A positive step in this direction was kick-start of the drafting exercise initiated in January 2015 for regulating space activities. In less than three years the draft ‘Space Activities Bill’ has been released on 21 November 2017 for public comment that reflects governmental commitment towards streng thening public-private relationship.

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The draft bill is largely to comply with international obligations. Requirement of the Outer Space Treaty to authorise and continuingly supervise activities of non-governmental entities in outer space have popularly been considered as the fundamental basis for national space legislation for any country that intends to engage non-governmental entities in space. In response, some 22 countries have enacted national space legislation.

Authorisation and supervision of activities of non-governmental entities in outer space can be achieved by other means but a ‘rule of law’ is a better choice. If a space object causes damage, it is the ‘launching state’ that bears liability to pay for compensation. International space law defines ‘launching state’ as a state that launches or procures the launch of an object into outer space, or from whose territory or facility an object is launched. There is no way by which a state can shy away from this liability; rather the OST imposes international responsibility upon states for their national activities whether such activities are carried out by governmental or non-nongovernmental entities. This means that even if the activities are carried out by a private enterprise, the liability is always of Government. Governmental liability for private activities is a sound reason to legislate and the draft Space Activities Bill 2017 is necessity of the times.

The draft bill is spread in thirty-three sections in six chapters providing basic legal framework for space activities; addressing licensing and monitoring mechanism, powers of Central Government, registration of space objects, liability for damage and intellectual property rights’ protection in space. Sanctions – both imprisonment and fine –  have been levied for non-compliance.

It must not be misconstrued that by enacting a law the Government can escape from its international liability. Law can only help to reduce the risk of damage through diligent ‘authorisation and supervision’. Despite due diligence should the Government have to pay for any damage, the law can help to seek recourse. The draft bill follows the same principle. The Government has reserved its right to seek indemnification for any claim brought against the Government in respect of damage or loss arising out of a commercial activity. Whether the Government shares the liability with the private enterprise or whether it bears absolute liability for damages can be inferred only from the rules, which are yet to be formulated.

A limited liability is very much desirable for active involvement of private enterprise in the highly risky space business because unlimited liability would either destroy such enterprises or dissuade them from entering. For this reason countries like USA, Australia and UK had to gradually amend their space legislation and put a cap on the liability of private enterprise. Last year Japan enacted a new law to share responsibility for compensating damage on behalf of private enterprise.

Liability for space activities are future-oriented and unlimited in time, amount and territory. In the remote possibility of damage, space lawyers have explained that the Government may have to bank on the Consolidated Fund of India. Article 266 (3) of the Constitution of India states that “No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.”

The draft bill does not have a provision to withdraw money from the Consolidated Fund and in the absence of such an provision should actual damage occur, an ordinance might be required to avert this Constitutional crisis. Apart from addressing international obligations, the draft bill must accommodate the constitutionally prescribed mechanism for withdrawal of money from the Consolidated Fund.

The draft bill has safeguarded financial interests of the Government by reserving an indemnification clause, but the draft bill is silent on whether a citizen of India can claim  compensation if his/her property or/and person suffers damage because of space activities.  International space treaties do not give any right to an individual to bring a claim for damage caused by a space object. It is states that can bring a claim against other states. In absence of an express provision for a citizen to claim for damage caused by a space object recourse will have to be found in general laws. In the interest of Indian citizens, it would be desirable that a justiciable right in their favour for claim of compensation for damage caused by space activities is included in the draft bill.

Legislation must not only prescribe rights and duties of the interested parties but also provide for symbiotic growth and self-reliance of private enterprise. A limited liability clause or prescribing conditions of indemnification or reduced third party insurance provision in the legislation or concession for non-commercial space activities could be a possible way. In France the Government will not make a claim for indemnification if a space object authorised for governmental interest causes damage. Similarly, in Austria if a space activity serves science, education and research in public interest the insurance amount may be lowered to the extent of complete waiver. India too might have planned for such schemes, but a guarantee through legislation emboldens confidence of the investors.

As stated in the explanatory note to the draft bill, the Department of Space (DOS), is the nodal agency for all space activities in India. By implication, DOS shall have an indispensable integral role in authorisation and supervision of space activities that demand highest level of precision and this mammoth responsibility must not be bestowed through conventional practice and rules but rather in express wordings, to be included in the draft bill.

Space treaties impose international responsibility upon states for activities in outer space. But none of the treaties define Outer Space. The demarcation of boundary between airspace and outer space is needed because outer space commences where air space ends and the two are governed by distinct legal regimes. Contrary to air space, there is no sovereignty in outer space; air law recognizes contractual liability of the carrier, whereas in space law liability is upon the states. With increasing commercial space transportation, delimitation of outer space will be inevitable for reasons of finality to liability issues.

Reusable launch vehicles that India is also trying to develop travel partially in airspace like an aircraft and later like a space vehicle. Liability regime applicable to airspace vehicles cannot be precisely answered without addressing the delimitation issues.

Delimitation issue has been on the agenda of United Nations Committee on Peaceful Use of Outer Space (UNCOPUOS) since its earliest days but till date no solution has been reached. Treaty making at UNCOPUOS is by consensus, which is quite cumbersome because a single dissent can defeat the entire process.

Australia (2002) was first in the world to demarcate the boundary at 100 Km above sea level, although it did put a caveat that the demarcation is only for their internal purpose and they do not intend to set the international boundary. Followed by Australia, Kazakhstan (2012) and Denmark (2016) expressly stated in their respective national space legislation that outer space begins at 100Km and beyond. International law experts have stated that national space legislation cannot have a direct influence on international law. But it may be regarded as an expression of opino juris and if many states follow, it may lead to customary law. There is an opportunity for India to contribute towards development of international customary law on the delimitation issue and India must grab this opportunity.

Space activities are inherently dangerous and when private enterprises are involved in this highly risky business greater caution is required. Details of various provisions of the draft bill are to be prescribed under the rules to be formulated later. Rules give flexibility to add further requirements as per need but avoiding the basic essentials leads to opacity; and addressing them within the draft bill will better institutionalise  things.

While some of the sections of the draft bill require improvement, a delay in enacting the rules could lead to uncertainty in procedural aspects. Nonetheless, space entrepreneurs can hope for dawn of a new era in exploration and use of outer space is likely. Absence of law has been a major hurdle for their access to space. The gateway to the cosmos is under construction. This writer hopes the suggestions put forth will enable the architects to give it a splendid finish.

(The writer is Assistant Professor at National Law School of India University, Bangalore where he offers a course on space law. He is also pursuing his doctoral studies on this topic from the Institute of Air and Space Law, University of Cologne, Germany. The views expressed are those of the writer and must not be endorsed to the institutions with which he is associated. The writer may be reached at kumarabhijeet@nls.ac.in)