OPINION| The fault in our stars: India’s bid at privatizing space

With the creation of the Indian National Committee for Space Research (now ISRO) in 1962, India has been an active patron to mankind’s space efforts. From Aryabhata to Chandrayaan-2, India has launched 113 satellites, including the first privately built and funded satellite ExceedSat-1 which was launched from USA, as a part of Elon Musk’s Space X project Falcon-9.

Up until 2016, India’s space activities have been the exclusive domain of the State, however, the launch of the IRNSS-1H in 2017 was the herald of a new era in India’s Space endeavours. The IRNSS-1H marked the beginning of privatisation in this area by being the first Indian satellite, to be designed in collaboration with the private parties. In the following year, the ExseedSat-1 was to become the first privately funded and built satellite launched in collaboration with the private Space X project.

Interestingly, up until now, all missions have been conducted for purposes of research, reconnaissance as well as for augmenting communication systems since there was a substantial State monopoly.

With the recent announcement of the creation of the Indian National Space Promotion and Authorization Centre or IN-SPACe by the Government of India as part of its atma nirbhar Bharat scheme, which aims at providing a “level playing field” and a supportive regulatory regime to allow Indian private enterprises to grow and carve their own niche in the so-called “fast-growing global space sector”, India has in fact shown an inclination to capitalise on the US strategy of opening up the avidly touted space “sector” to private participation.

While the initiative sounds exhilarating and will definitely go a long way in defining India’s image as an emerging global technology powerhouse, it is extremely difficult to fathom why private players, would be willing to readily come forward and invest billions, by confining their activities for research purposes alone, without any expectation of commercial gains or simply, return on their investment.

This is so because, matters concerning space and space exploration are subject of a special branch of customary international law, that are mainly centred around five treaties and eleven agreements. The most significant of these is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies or the Outer Space Treaty (OST) which India ratified in 1967, and which specifically lays down under Article I that outer space and space

exploration including that on the moon and other celestial bodies, are to be carried out solely for, and in the interest of all countries, and that they are the province of all mankind. Article II restricts claims of sovereignty and national appropriation by any means whatsoever, Article VI places international responsibility on all activities carried on by governmental or by non-governmental entities, as well as mandates authorization and continuing supervision by the appropriate State Party.

While there is considerable debate surrounding the applicability of the OST especially Article VI to private parties, since the US Supreme Court ‘s ruling in Medellin v Texas (2008) which held that Article VI is not self-executing in nature, regard must be had to the fact that these are domestic Court rulings and the fact that Space law is part of Customary International law which is affirmed by decades of State practise, cannot be denied, and neither can the fact that it is settled principle of international law that a State cannot, under the excuse of changes in domestic law, including subsequent Court rulings, renege from treaty obligations once ratified.

In effect, the OST places strict checks upon the objectives behind exploring this uncharted territory by State and Non-State actors, far less allowing the possibility of even claiming rights of any kind. Moreover, it is no secret that private corporations operate predominantly with the object of individual gains and unless driven by the zeal to serve mankind and share profits with all countries, chances are that the investments made by private parties will have little to nil returns, far less any substantive protection.

Also, the marked absence of a designated “Space Police” to patrol and check exploitative behaviour arising out of private activities owing to the presence of Article IV makes any form of substantive protection offered by States to private equity outside the Kármán line, ineffective.

These are some of the many challenges apart from concerns regarding contamination of space including space debris, that will require extensive deliberations by the Indian Government unless it wants to face a fusillade of criticisms as well as expose itself to the risk of multiple treaty breach claims and possible sanctions from UN as well as its member States. Therefore, unless carefully planned and executed in collaboration with other State actors and under a highly controlled yet a pragmatic regime, that can ensure a balance between the needs of private investment and obligations posed by the OST, India’s space ambitions for the moment appear to be anachronistic and as surrealistic as the flying ambitions of Icarus and Daedalus.

(This article was written by Nilanjan Sen, who is an experienced lawyer, specialising in International Law and Arbitration. His views are personal.)

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