What is the legal framework for space missions like the Chandrayaan 3 and Aditya L-1? | Explained

The story so far: In a historic feat, the Chandrayaan-3 lander touched down near the south pole of the moon on August 23. The landing follows on the heels of Russia’s failure to land its Luna-25 on the lunar south pole after it crashed owing to an engine malfunction.

This was closely followed on September 2, by the successful launch of solar research mission Aditya L-1, a space-based observatory to observe the sun.

India now joins an elite club of four countries which have placed a spacecraft on the lunar surface, after the United States, Soviet Union, and China. But it is the first to do so close to the south pole, where there is evidence of the presence of water.

Although India spends significantly less on its space programme compared to spacefaring nations such as the U.S. or China, these space ventures are only the beginning of its orbital ambitions. By 2025, India seeks to launch its first crewed mission, called Gaganyaan.

The country has also recently signed the U.S.-drafted Artemis Accords — a set of non-binding principles designed to guide civil space exploration and use in the 21st century. 

India is joined by national space agencies and private companies alike in a new international space race to land on the moon. Japan plans to launch a lunar lander after a Japanese company’s spacecraft crashed a similar landing in April this year. An Israeli nonprofit tried to achieve a similar feat in 2019, but its spacecraft was destroyed on impact.

Space missions further a nation’s commercial and strategic interests, and also help it secure a place on the world stage. In the wake of this unprecedented space race, a key question arises — what are the international laws and domestic regulations that govern such ventures into space?

The international legal framework for space ventures

Ever since the grand space race of the 1960s between the Soviet Union and the United States, nation-states have come together to deliberate and create a legal framework to govern access to space and maintain space neutrality— including deterring attempts to weaponise space.

A grand panoply of five United Nations treaties is generally thought to form the bedrock of international space law, starting with the Outer Space Treaty of 1967– often called the magna carta of space law. Of these, India has ratified four and signed one.

The UN, in its policy brief “For All Humanity — The Future of Outer Space Governance,” recently recommended the development of a new treaty to ensure peace, security, and the prevention of an arms race in outer space. A UN Summit of the Future is also scheduled for September 2024 in New York, with advancement of the peaceful and sustainable use of outer space a potential area of work.

Besides the five key treaties, there are also five declarations pertaining to space activities. The first is the ”Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space” —adopted via a General Assembly resolution in 1963. The others include those governing the use of satellites for television broadcasting, remote sensing from outer space, and use of nuclear power sources in outer space. A fifth one relates to international cooperation in space exploration for the benefit of all states, particularly developing countries. This is joined by other UN General Assembly resolutions, which, though non-binding, help guide international action on this issue and may shape consensus in the space community.

One of the core tenets that guide international space law is res communis— the concept of ownership in common by mankind of certain natural resources. A non-space example would be the resources of the high seas (governed by the United Nations Convention on the Law of the Sea), or airspace above the Arctic.

The five treaties

The “Outer Space Treaty”

More formally known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, the Outer Space Treaty was opened for signature on January 27, 1967, and entered into force on October 10, 1967.

Often hailed as the Magna Carta of space law, this treaty binds its signatories to use outer space only for peaceful purposes. It prohibits the weaponisation of space, whether through nuclear or other weapons. Further, no country can claim sovereignty over the moon or other celestial bodies, and must carry out space ventures openly. The treaty also dictates that countries are responsible for their activities in space, being liable for damage caused by any objects launched into space from their territory. They must also help astronauts who are in distress, and space installations and vehicles of one nation are to be open for representatives of other nations on a reciprocal basis.

The “Rescue Agreement”

The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (ARRA) entered into force on December 3, 1968. It deals with the obligation of nations towards astronauts, particularly in distress and emergency situations, and return of space objects. This includes rescue, assistance and return of astronauts.

While never put in action as far as rescue of astronauts was concerned, (and called a ‘sleeping beauty’ by a 2008 paper for not receiving as much fanfare as the other treaties), the treaty has been applied for rescue of space objects.

The “Liability Convention”

Officially the Convention on International Liability for Damage Caused by Space Objects this convention entered into force on September 1, 1972. Under this treaty, a nation launching an object into space will be liable to compensate any damages incurred on the earth’s surface or to aircraft. It will also be liable for any damage caused in outer space owing to its fault. The Convention also outlines a process to seek settlements of claims for damage.

Notably, the convention still leaves certain gaps: there is no provision for damage caused by a rocket crashing back down to earth.

The “Registration Convention”

The Convention on Registration of Objects Launched into Outer Space, which entered into force on September 15, 1976, is a “relatively simple and simple and down-to-earth treaty consisting of just 12 Articles elaborating one rather straightforward concept: the registration of space objects.” Under the terms of the treaty, nations are required to register details about every object launched into space, whether into earth orbit or beyond, in a registry and furnish them to the United Nations.

The “Moon Agreement”

Generally referred to as the “Moon Agreement,” the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies was introduced by the UN Office for Outer Space Affairs in 1979. However, it only entered into force on July 11, 1984.

The Moon Agreement provides that the moon and other celestial bodies should be used only for peaceful purposes— reaffirming a key element of the Outer Space Treaty. It also notes that their environments should not be disrupted, and the UN should be informed of the location and aim of any station established on such a body.

Also read: Why India should exit the Moon Agreement

Perhaps most importantly- the agreement provides that the moon and its natural resources are the common heritage of mankind. It indicates that an international regime to regulate exploitation of such resources should also be put in place.

What are the Artemis Accords and do they conflict with international space laws?

The Artemis Accords are a set of non-binding guidelines for international partners who wish to participate in NASA’s ambitious Artemis programme. The programme, co-led by the U.S. Department of State, aims to return people to the moon in 2024, including the first woman and person of colour. So far 28 countries have signed the Artemis Accords. Although the agreement does not constitute binding international law, the U.S. reportedly seeks to develop it into customary international law through broad international consensus.

Artemis mirrors a Chinese-Russian plan for an ‘International Lunar Research Station’ (ILRS) which aims to set up a permanent base and a lunar satellite constellation. Like the Artemis, the ILRS too is open to collaboration with other nations. In June 2021, the China National Space Administration and Russia’s state space corporation, Roscosmos, published a partnership guide to this effect.

Experts have however flagged that the Artemis Accords violate the Outer Space Treaty of 1967, ratified by 110 countries including the U.S. and India. As outlined above, the treaty gives all nations ‘free access to all areas of celestial bodies’ and underscores that the moon and other celestial bodies cannot be subject to national appropriation, whether by claims of sovereignty or otherwise. This principle of non-appropriation is seemingly violated by Section 10(2) of the Accords, which stipulates that ‘the Signatories affirm that the extraction of space resources does not inherently constitute national appropriation.’

Moreover, Section 11 states that signatories will support the development of ‘safety zones’ to ensure that states do not come into conflict with one another. Although this provision may be viewed as advancing the principle of ‘due regard’ specified in Article 9 of the 1967 Treaty, earmarking such zones can result in de facto appropriation of lunar areas and the alienation of other states— in stark contrast with the freedom of exploration and use promised by the treaty.

The provisions of the Accords are also in conflict with the Moon Agreement— which, as mentioned above, designates outer space as the common heritage of mankind and precludes commercial entities from taking possession of lunar natural resources.

But, as Senjuti Mallick, a space law expert working at aerospace tech company COMSPOC highlights, while the Moon Agreement “places a moratorium on resource appropriation” until an international regime is established, it has not been widely ratified, including by the U.S. and other leading space-faring nations.

Lunar mining — a legal gray zone

Space is seeing a host of new entrants— private commercial players. In 2020, NASA awarded contracts to four companies to extract small amounts of lunar regolith by 2024 — beginning the era of commercial space mining.

Celestial bodies, including the moon and asteroids, are potentially rich sources for natural resources to counter the fast depletion of those on earth. Recent probes have concluded that the moon contains substantial amounts of water in its craters at the lunar poles. The Laser-Induced Breakdown Spectroscopy (LIBS) instrument abroad the Pragyan rover recently confirmed the presence of sulphur.“Preliminary analyses have unveiled the presence of Aluminum (Al), Sulphur (S), Calcium (Ca), Iron (Fe), Chromium (Cr), and Titanium (Ti) on the lunar surface. Further measurements have revealed the presence of manganese (Mn), silicon (Si), and oxygen (O). Thorough investigation regarding the presence of Hydrogen is under way,” the ISRO said.

In a 2018 paper, Ms. Mallick and her co-author highlighted that NASA “estimated that the value of asteroids out there could be in the vicinity of US$700 quintillion – that amount is roughly equivalent to US$95 billion for each of us here on Earth.” The paper also lists some other rare metals potentially available in space- lithium, cobalt, nickel, copper, zinc, niobium, molybdenum, lanthanum, europium, tungsten, and gold.

As entrepreneurs and space-faring nations look to harness lunar resources, the access to them remain entangled in the realities of economics and international laws and diplomacy.

Notably, India’s Chandrayaan 3 mission highlights the legal gray zone for lunar mining. The non-appropriation clauses in the international treaties prevent nations from laying a claim over celestial bodies; however, they do not explicitly prohibit owning and using resources once they are extracted. In fact, the Moon Agreement proscribes commercial exploitation of planets and asteroids by states unless an international regime is established to govern such activities for ‘rational management’, ‘equitable sharing’, and ‘expansion of opportunities’ in the use of these resources.

Taking advantage of this loophole, countries like the U.S., Luxembourg, United Arab Emirates, and Japan have promulgated domestic laws that permit companies to claim exclusive ownership over extracted resources. In 2015, the U.S. government introduced the US Commercial Space Launch Competitiveness Act, 2015 — the first national law recognising the property rights of private entities over space resources, allowing U.S. citizens to claim such rights. It does not, however, allow any claim of property in situ.  In essence, property rights can be conferred for the resource in question as long as it is located on or within the celestial body, implying that the celestial body itself is not covered by ownership regulations. This was followed by a 2020 Executive Order that reiterated the country’s commitment to developing property rights to space resources, rejected the Moon Agreement and solicited international cooperation. 

In 2017, Luxembourg followed suit, enacting the Law on Use of Resources in Space Act and creating the Luxembourg Space Agency. Per this law, space resources can be appropriated, but only licensed activities according with Luxembourg’s obligations are permitted. While acknowledging the requirements of the 1967 Treaty, it does not set aside a section of profits for redistributive purposes, considered by some nations as an obligation for mining nations. Unlike the U.S. legislation, this Act does not require a company’s major stakeholders to be based in the country, although it requires the company to be incorporated or have its central administration office in Luxembourg. So far countries such as Japan, Portugal, and the UAE have signed cooperation agreements with Luxembourg to carry out space mining operations.

In December 2019, the U.A.E. passed Federal Law No. 12 on the Regulation of the Space Sector that applies to citizens and companies headquartered in the country. While not directly stating that space resources can be exploited, it includes in its list of regulated space activities both ‘Space Resources exploration or extraction activities’ and ‘activities for the exploration and use of Space Resources for scientific, commercial or other purposes.’ Importantly, unlike other domestic space laws, this legislation includes liability provisions under which the operator could be held liable if U.A.E breaks the 1967 treaty.

In 2021, Japan became the fourth country to enact a law of this nature — the Act on Promotion of Business Activities Related to the Exploration and Development of Space Resources (Act No. 83 of 2021). It allows companies to gain property rights over space resources only if the government approves their notified objectives, timing, and methods of research. It does not differentiate between resources on or within a celestial body and the celestial body itself but acknowledges the need to comply with international laws. Explicitly recognising a private party’s ability to own resources extracted from space, Article 5 states that a person who gains possession of space resources through activities conducted pursuant to their permit owns those resources when they ‘possess the resource with an intention to own it.’

India’s space policy 2023 — entry of private players and scope for space mining

Efforts to open the Indian space industry to private companies have been in the pipeline for quite some time. In fact, Chandrayaan-3 represents a significant milestone in this endeavour, as a joint project between ISRO and the Indian private sector. 

A draft Space Activities Bill was introduced in 2017 which went through a long consultative process. However, it lapsed in 2019 with the outgoing Lok Sabha. A new bill was expected by 2021; however, ISRO instead released the Indian Space Policy 2023 on April 20 this year with the vision to ’enable, encourage and develop a flourishing commercial presence in space’.

A notable feature of the policy is encouraging the private sector to engage in extraction and development of space resources such as space solar power, asteroid mining, and lunar mining. The policy stipulates that any NGE (Non-Governmental Entities) shall be entitled to possess, own, transport, use, and sell any such asteroid resource or space resource obtained in accordance with applicable law, including India’s international obligations.

The policy also states that ISRO will move out of manufacturing space systems, and instead focus only on advancing space R&D and contributing to areas of space exploration that are of national interest. Manufacturing and operations will be handled by NewSpace India Limited (NSIL) — a public sector unit set up in 2019 under the Department of Space as the commercial arm of ISRO. Finally, the Indian National Space Promotion & Authorisation Centre (IN-SPACe) is expected to create a ‘stable and predictable regulatory framework’ that will ensure a level playing field for the NGEs. 

Other than the space policy of 2023, the Indian space industry is also subject to certain articles of the Constitution, the Satellite Communications Policy, 2000 and the revised Remote Sensing Data Policy, 2011.

Article 51 of the Constitution aims to promote international peace and harmony and maintain honourable relations between nations. Article 73 stipulates that the Union’s executive power extends to the exercise of any rights exercisable by the Indian government by virtue of a treaty or agreement. Under Article 253, the Indian Parliament may legislate on List 1 and List 2 subjects to implement any international treaty, agreement or convention. However, without such express legislation, there is no mechanism for international treaties to be subsumed into domestic law.

Does India need a domestic space law?

Ms. Mallick points out that for developing countries, the need for a space law is even more pronounced, as it can “serve as a foundation for capacity-building efforts, guiding the development of relevant skills and knowledge, attract investment and promote the growth of a domestic space industry, and effectively utilize space resources for societal benefit in various sectors such as disaster management, agriculture, and urban planning.”

When asked about the form such a law may take, Ms. Mallick said it could consist of “exhaustive regulatory frameworks,” covering heads like “licensing procedures, liability scheme, international agreements, space debris mitigation, space traffic management, launch and re-entry of spacecraft, and national security considerations.”

As of date, the UN Office for Outer Space Affairs lists 43 nations that have domestic space laws, based on submissions by nations. Further, the UN’s Space Law for New Space Actors project, on request, aids members with drafting or revising national space law to be in line with the international space law regime.

There is also some regional co-operation to establish a legal framework, in the form of the Asia-Pacific Regional Space Agency Forum National Space Legislation Initiative. The initiative promotes information sharing and engages in capacity building pertaining to drafting and implementing of national space laws, in the Asia-Pacific region.

Another key reason for a cohesive space law framework according to Ms. Mallick— is space sustainability and the prevention of damage by space debris. These “ trackable orbital debris objects exist alongside thousands of untracked smaller fragments, traveling at extremely high velocities.“ Further, as the amount of space debris only increases, “and as orbits become more congested, the probability of new collisions further multiplies, risking the Kessler Syndrome.”

Data | Small debris orbiting Earth pose threats to space assets 

The Kessler Syndrome is named for NASA space debris expert Don Kessler, who observed that past a certain critical mass, the total amount of space debris will grow, spurred by a chain reaction as collisions lead to more space debris, which in turn cause more collisions.

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