SIA-India DEFSAT 2024
Thoughts on Drafting National Space Policy and Law
Def Sat 2023 was a defining inaugural event. For the first time, the defense establishment and the armed forces were present and participating in every session at the three days conference. Unmistakably, it signaled intention to take forward the proposed military use of outer space for peaceful purposes. In June 2020 the Prime Minister had directed expansion of the Indian space programme. India’s expanded space portfolio would henceforth include (i) State activities in the civil (non-military) use of outer space under the auspices of the Department of Space/ISRO; (ii) proposed State activities in the military use of outer space, that have been on anvil for some years past; and (iii) proposed activities in outer space by non-government entity or commercial entities pursuant to grant of authorization by the designated Licensor and under its continuing supervision . In short, India has decided to undertake full range of space activities, collectively to referred as national space activities in Article VI ( first line) of the Outer Space Treaty, 1967 ( Treaty on Principles Governing the Activities of States in Outer Space, including the Moon and Celestial Bodies, 1967). The Def SAT 2023 was a natural progression towards actualizing the radical shift away from India’s restricted approach to outer space, historically confined exclusively to State civil space activities since 1972.
Def Sat 2024 will focus its deliberations on building space capabilities for the future, and discussions will likely be around military space capability required for India to be present and future ready. I will urge, therefore, that this is also an opportune time to focus attention on the requirement of a policy for national space activities and a statute to govern national space activities that will provide necessary regulatory certainty to progress the expansion of the national space programme as proposed in 2020. And, to agree that it is not an option to have a policy and statute drafted in clear, precise and unambiguous language, with identifiable objectives and framed on the basis of a comprehensive understanding of the geopolitics nuances and legalize around interconnected and interdependent provisions of OST. To have such a policy and law is an imperative requirement. All this is, of course, easier said than done. It requires time and extensive preparatory work, including involvement of those who will be directly governed by the policy and law. The matter deserves the attention due to it.
It cannot be emphasized enough though, drafting a space policy and law must receive coordination at appropriate levels to ascertain India’s official position on various aspects of the OST, new space activities within earth orbit and off earth orbit including commercial space resource utilization, to ensure that the policy and law are consistent with government view on the specific aspects. To illustrate, if for example, if the Indian delegation files submission at the UN Conference on Disarmament emphasizing the importance of Outer Space Treaty as the cornerstone for space governance, which is based on India’s official position on the subject, it would automatically be incumbent that official position to be amplified consistently across all UN and international forums. By that same measure, it would be incumbent that an Indian space policy or law documents do not contain articulation of inconsistent positions, whether directly or indirectly referenced to specific provisions of the OST.
Outer space is about geopolitics. Everything that happens in outer space starts and ends on the Earth. The twentieth century contestations between the three super space military powers – United States, China and Russia, involve the Earth orbit and off Earth presently focused on commercial space resource utilization and long-term human habitation on the Moon, Mars. As much as outer space activities are now driven by the global commercial space sector led by the United States, outer space is always about military contestation. It is important to bear in mind that the Outer Space Treaty governs all space activities- military, civil and commercial. And, that there does not exist an international treaty on military space activities.
In view of the foregoing, I submit my thoughts on possible structure for a policy on national space activities for your consideration.
Ideally, the military space strategy should also include a Near Space strategy. In turn, the military space strategy should be an appropriate summation of the (i) Air Force Doctrine ; (ii) Army Doctrine; and (iii) Navy Doctrine; and (iv) Space Force Doctrine?
I will emphasise that there is the need to address aspects of Near Space activities. Near Space (NS) is the domain that is located between 18 km – 160 km above the surface to the Earth. In other words, NS lies within sovereign air space between 18km ( being the highest altitude for a commercial aircraft) up to 100 km ( the so called van Kamran Line) and upwards from 100 km to 160 km ( being the lowest stable orbit for a satellite) in outer space, the domain to which state sovereignty cannot be applied. NS hosts UAV, drones, pseudo satellites high latitude balloons and the like. Notwithstanding the excitement over the Chinese balloon in 2023, recently we are reading about Houthi rebels using drones to attack ships near the Red Sea and that some ships have expressed vulnerability in the absence of required defence mechanisms on board.
National Space Activities law. Drafting a space activities bill is by far a very difficult task. The drafter must be cognizant that the Outer Space Treaty is a product of the Cold War. At the time Sputnik was launched in 1957, the bipolar world was dominated by symmetric nuclear states, with advanced space launch capability, that stood at opposite ends of the ideological divide. Expediency and self- interest dictated strategic tensions and risks be reduced urgently, and that there was need for agreement on terms and conditions for engagement in outer space that would enable unimpeded access thereby to continue development of military space capabilities. Choosing to negotiate terms and conditions for engagement in outer space under the auspices of the United Nations, the United States and Soviet Union continued development, testing, and demonstrating the full range of military space capabilities, including anti-satellite tests, space launch, satellite applications, weapons systems, human space flight, lunar probes, deep space missions, human landing on the Moon. In fact, to avoid possibility of conflict in outer space, international treaties related to outer space were progressed simultaneously to provide regulatory certainty and legal underpinnings to space activities that were exclusively military in nature and scope. The first and principal users of outer space were the armed forces of the United States and Soviet Union. For this reason the Outer Space Treaty contains a complex set of interlinked and interdependent provisions.
The OST governs all space activities, as such, the national space activities statute will be correspondingly applicable to national space activities (military, civil, and commercial). For this reason, it would not be advisable not to engage selective paraphrasing of treaty provisions for the purpose of preparing the draft, nor advisable to introduce additional regulatory aspects, that are not prescribed in the OST, in the substantive statute to be enacted by parliament. However, understanding that commercial space activities may likely require specialized and specific regulatory direction, it is suggested that such caveats are introduced by way of Rules to be framed by the government, under substantive rule making powers under statue, thereby avoid the possibility of adverse consequences on any of the space user segments.
For this reason, drafting a policy and law is not and should not be the task assigned exclusively to any one department or ministry. It must be a rigorous and meticulous effort that involves participation of all space user segments and other stakeholders.
Dr. Ranjana Kaul
Partner, Dua Associates, New Delhi 110001