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Bhutan is preparing to launch a nanosatellite (nanosat) in 2018 (Kuensel, 21st October 2016). A fundamental step in the process is dealing with legal aspects. A summary of international agreements on outer space is presented here to reveal the impact of relevant laws or the lack of it.

Launch Nanosatellite in a Legal Vacuum?

Bhutan is preparing to launch a nanosatellite (nanosat) in 2018 (Kuensel, 21st October 2016). A fundamental step in the process is dealing with legal aspects. A summary of international agreements on outer space is presented here to reveal the impact of relevant laws or the lack of it.

Existing laws do not specifically deal with outer space or satellite. The same is true of the “Bhutan Information Communications and Media Bill, 2016” on nab.gov.bt and various documents on moic.gov.bt, mostly dated before October 2016. The most relevant mention I could find was, “…negotiating for DTH transmission of BBS channels, perhaps as part of the new satellite capacity being offered to Bhutan by India” (Broadcasting Policy, January 20, 2016). Reference to a satellite in “Digital Broadcasting Migration Bhutan” (2010) was related to broadcasting and distribution.

Familiar as Users

Bhutan is familiar with advantages of outer space activities like television, weather forecast and allocated orbital slot. We have ratified

Nuclear Test Ban Treaty (1963),

Agreement on International Telecommunications Satellite Organization (1971) and

ITU Constitution and Convention (1992).

International Agreements on Outer Space

Air space and outer space are different. Different laws apply to the atmosphere near and afar. Air space (གནམ་མཁའ། དགུང་སྔོན།) is where aircrafts or drones operate according to civil aviation laws. Satellites orbit in outer space (བར་སྣང་། དགུང་སྟོད་མཐོན་པོ།). Australian laws identify outer space as “area beyond the distance of 100km above mean sea level” but laws of many other States do not.

This summary of international law on the subject uses various terms like treaty, spacecraft or space vehicle, astronauts or personnel in the source documents.

1967 Outer Space Treaty

This is considered as the constitution of space law. Freedom of exploration, use, access and scientific investigation are guaranteed. It declared that outer space shall be the ‘province of mankind.’ Astronauts are regarded as envoys of mankind in outer space and States will assist them during accidents or distress. Astronauts who land in other States’ territory or high seas are to be returned safely and promptly to State of registry of the space vehicle. States have international responsibility for national activities, including activities of a non-government entity.

However, exploration and use shall be for the benefit and interest of all countries. States cannot own outer space or orbits by any means. No nuclear weapons or weapons of mass destruction shall be stationed on celestial bodies, in outer space or in Earth’s orbit. States agreed to conduct exploration by avoiding harmful contamination of Earth’s environment.

Accession to this Treaty gives recognition of the rights and obligations of a State.

1968 Rescue Agreement

The main aim of this Agreement is to rescue, assist personnel involved and recover objects if spacecraft suffer an accident or make an emergency landing in other State Parities’ territory. The Contracting Parties agreed to inform the launching authority, the Secretary-General of the UN or publicly announce such event.

Nanosat is unmanned, only recovery or return of object is relevant following a mishap.

1972 Liability Convention

This Convention defines damage, launch, launching State and space object.

A launching State shall be absolutely liable to pay compensation for damage caused by space object on the Earth or to an aircraft in flight. Liability for damage caused elsewhere is based on fault. Conducting space activity without following Outer Space Treaty will lead to absolute liability.

It explains which State can submit a claim for damage, how and when it must be done and what to do if claims are not settled within one year. The compensation aims to restore the condition which would have existed if the damage had not occurred.

Although Bhutanese laws do not require insurance of space activity, laws of service provider (eg, Japanese laws) require insurance. If Bhutanese insurance companies have no capacity to cover the risk, they have to reach out to insurers in London market.

The Convention does not apply to damage caused to nationals of launching States and foreign nationals invited to the event.

1975 Registration Convention

A State which launches or procures the launch of a space object, or State from whose territory or facility the launch takes place is a launching State. State of registry is the launching State on whose registry a space object is entered. It also informs the Secretary-General of the UN with the name of launching State, registration number, date and location of the launch, positions in outer space and general function. Registration has to be done as soon as practicable, followed by notification of changes and deregistration at the end of life.

This law provides a link between the registration of a space object, jurisdiction and control over it. A State of registry has jurisdiction and control over the space object.

1979 Moon Agreement

The Moon Agreement is “an innovative space treaty but the least successful…” cites Alexander Soucek in Space Law Essentials.

Guidance for Smaller Satellites

“Guidance on Space Object Registration and Frequency Management for Small and Very Small Satellites” issued by UNOOSA-ITU on April 13, 2015 advises that “legal issues relating to responsibility and liability at a national and international level should be considered at the ‘Project Definition’ stage of a satellite mission design process.”

Other Legal Matters

The space station expected to operate a transponder on the South Asian Satellite and operate nanosat has to be authorised by law to do its job. The pay and perks of the prospective employees may be determined and fixed by contract. The project will have as many legal issues to address as technical ones — random demands by staff for revision of ཐོབ་ཐངས་ need not be one of them.

Non-legal Matters

The registration of the nanosat, in particular, is a potent step. It’s a sovereign thing!

A clear decision on the usage of the ‘big data’ from the nanosat must be announced. Will it be used for military purpose or can non-government entity access it for commercial use? Free of cost access or no access at all — would be unfair, to say the least. Equal access at a reasonable fee should be preferred.

Adequate media campaign followed by live telecast of the launch will create national awareness. Schools should facilitate and encourage students in classes VI to XII to watch the launch in order to inspire the next generation of space enthusiasts.

Satellite launch is described as ultra-hazardous besides being expensive (US$ 280,000 for Bhutan’s nanosat). It could fail. If such misfortune were to occur, the space station should explain what happened and the lessons learnt.

Last But Not Least

Bhutan could use UN General Assembly resolutions such as 68/74 of 11 December 2013 to fill the legal vacuum. The Outer Space Agreements are more relevant than the UN Convention on the Law of Sea (1982), which Bhutan signed.

India or (and) Japan may be the potential partner to launch Bhutan’s nanosat. Both are advanced in space technology and members of most international agreements on outer space highlighted here. We should at least study relevant international law and the national laws of mission partners before launching a nanosat.

Contributed by 

Namgyel Wangchuk,

Student, Advanced LL.M. Air & Space Law, 

Leiden

namgyelwangchuk@gmail.com

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