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Cover Story: Watch this space

Space has always excited and challenged the human intellect. Starting with Soviet Sputnik in 1957, human endeavour in space has seen several milestones including the Apollo mission to moon, International Space Station, inter-planetary explorations and very high resolution earth observation satellites. But the real challenge is on earth, not in space. To coordinate space activities and to ensure peaceful use of space, a policy framework at various levels is the prerequisite. In this cover story, Associate Editor Bhanu Rekha explores the need, identifies the issues and guidelines for a policy to conquer this final frontier.

Space is a unique frontier and a global commons. No single country owns it but every single nation/political geography can make best use of it. The unique vantage point offered by space enables many critical infrastructures and it is spinning off a myriad of applications and utilities through satellite communications, navigation, and geospatial technologies.

National security and public safety apart, economic competitiveness and scientific capabilities, are all reliant on access to space and space-based capabilities. The growth of global space capabilities presents several important opportunities and challenges for developed and developing countries alike. It is thus imperative for a country to evolve a national space policy to address its priorities and also understand the changing international landscape, from low earth orbit to geosynchronous orbit, to the Moon and beyond.

Today, a growing number of states are seeking to develop or extend their space capabilities and so formulating space policies. At the same time, a variety of private actors are also extending their involvement in space activities. This has brought in the United Nations, an inter-governmental forum, to deal with various space issues of global importance. The United Nations has come a long way, since the Outer Space Treaty of 1967, in formulating a framework and guiding principles for activities in space.

While space science and technology have taken giant strides, policy issues are yet to catch-up. The Chinese anti-satellite test of 2007 and the retaliatory test by the USA substantiate this perception. That individual countries have space policies and guidelines that differ from international laws is another issue. Analysing the situation and thinking ahead, Scott Pace, Director, Space Policy Institute, Washington University, United States says, "It depends on individual nations. Some nations have fairly advanced policies given the technical capabilities. In other cases, country's techno capabilities have run ahead of the policies. I will be reluctant to have politicians look at the future. Politicians of our time at most look at the next year. Any law tends to function best if it reacts to real cases as apposed to making a law in anticipation of a technology development. We need an ever evolving law."

But the growing reliance on space technology and the increasing pace of international space activities necessitates a more coordinated and strategic approach to space activities at a global level than is currently the case. In such scenario, a United Nations space policy is expected to provide over-arching guidance on space activities for UN stakeholders in the space arena. While the need for a UN space policy and the guiding principles for one such policy are discussed in the interview with Ciro Arevalo Yepes, Chairman, UN Committee in the Peaceful Uses of Outer Space (UNCOPUOS), in Pages 23 through 25, this article will discuss the other pertinent issues of space and space policy.

Dual use of space technologies
While countries want to reap the benefits of space science, technology and the scientific information available through these technologies, they ought to be mindful that being in space club is actually a responsibility and a collective obligation. The technologies that enable access to space can be used for peaceful exploration or carry weapons of mass destruction. "An example of this is quite evident in the space activities of North and South Korea. Space launch capabilities are not viewed in isolation, but in the context of other behaviors such as nuclear nonproliferation and controls on missile technology. The Middle East is on the cutting edge of this paradox of dual-use space technologies, with much to gain and much opportunity to be lost from the peaceful development of space applications," opines Dr Pace. On one hand, the benefits of geospatial technologies, enabled by space systems, have the potential to diversify and improve the competitiveness of regional businesses enabling them to participate in global markets. Adoption of supportive government policies is a prerequisite for this though. On the other hand, it is possible that political and regional instabilities might lead to proliferation of militarisation of space. "There is thus a direct linkage between the economic benefits of space and international space security. Space represents deeply integrated national capabilities, calling for deeply integrated technical and policy approaches both domestically and internationally," adds Dr Pace.

Air space Vs outer space
Airspace is that the portion of the atmosphere controlled by a particular country or political subdivision on top of its territory and territorial waters. The Chicago Convention of 1944 clarifies that every State has complete and exclusive sovereignty over the airspace above its territory. By international law, the notion of a country's sovereign airspace corresponds with the maritime definition of territorial waters as being 12 nautical miles (22.2 km) out from a nation's coastline. Airspace not within any country's territorial limit is considered international, analogous to the high seas in maritime law.

The most simplistic definition of outer space is, "the region of space beyond limits determined with reference to the boundaries of a celestial body or system, especially the region of space immediately beyond earth's atmosphere and interplanetary or inter-stellar space". But this is an arbitrary definition.

While international conventions define the horizontal extent of airspace of a country, there is no international agreement on the vertical extent of sovereign airspace (the boundary between outer space – which is not subject to national jurisdiction- and national airspace), with suggestions ranging from about 30 km (the extent of the highest aircraft and balloons) to about 160 km (the lowest extent of short-term stable orbits).

Technology changes in aircraft, spacecraft, positioning systems and remote sensing, combined with the growth in the number of space-faring nations, make the situation different from the early days of the space era when it was assumed that a boundary would be defined at a future indeterminate date. Hence there is an immediate need to consider defining a vertical or spatial boundary between air space and outer space, which in turn effectively means defining the extent of air law and space law. "There is no definition, and we have been unable to reach a consensus on a uniform boundary delimitation of the term outer space. This is causing legal uncertainty in outer space and airspace law," opines Dr MA Tarabzouni, Director, King Abdulaziz City for Science and Technology, Kingdom of Saudi Arabia. Differing with this opinion, Dr Pace says, "I don't think definition of outer space is a problem. We could do it well in the past 50 years without a perfect definition. As use of outer space evolves, defining space could only be an excuse for not doing anything and therefore we should focus on practical uses of space rather than let the law catch up."

Space Debris

The issue of space debris originated when Sputnik 1 was launched by the Soviet Union in 1957. Three months after the launch, the satellite ended its transmission and reentered the earth's atmosphere and was subsequently burnt up. Since then, there are at least 80 satellites that have broken up into smaller fragments. The recent Cosmos Inmarsat collision and the Chinese ASAT test resulted in major debris creation. At present, there are over 40,000 pieces of space debris, each at least the size of a golf ball orbiting the earth. Scientists have acknowledged the problem of space debris for nearly two decades. This issue is addressed by the Space Liability Convention. "The most difficult long term issue is mitigation and removal of space debris. Space objects belong to the nations that launch them. We do not have salvage rights in space the way it is in high seas. A new salvage regime to deal with the abandoned objects in space is probably the next legal task to do," opines Scott Pace.

Space Liability

Any space policy is incomplete without a framework for space liability. Space Liability Convention of 1972 expands on the liability rules created in the Outer Space Treaty of 1967. Though the treaty has never yet been invoked, over the years, this led to a fair evolution of space insurance and space liability insurance markets.

While space insurance policies primarily cover damage to satellites during the pre-launch, launch and early orbit, in-orbit and de-orbit phases, space liability insurance covers the financial consequences of the insured's liability for damage to third parties arising out of the launch and in-orbit operations of spacecraft. Under the 1972 Liability Convention, a launching State is ultimately liable to third parties but through licensing and contracts it can transfer part or all of its financial exposure to the launch service providers or to the satellite operators. An estimate puts the overall premium volume generated by this space insurance market anywhere between USD 800 million and USD1 billion. The space liability insurance market is a sub-set of the aviation liability insurance market. It is almost totally isolated from the traditional (damage) space insurance market. As a rough order of magnitude the premium volume generated by the space liability insurance amounts between USD 15 million to USD 20 million. Notes Christain Barnabe, Executive Director, Aon Risk Services, France, "It is fortunate that losses are extremely rare in this market since the premium volume generated is extremely low compared to the limits bought by the satellite operators (hence the potential extremely high volatility of this market)." He then cites the most recent claims in the market – the Proton/Raduga failure in 1999 with USD 270,000 claim and the Delta II/GPS Navstar II R-01 failure in 1997 where the immediate vicinity of the Cape Canaveral launch site was affected. The claim amounted to USD 12 million. Though third party liability claims rarely occur nowadays, the space object population has grown significantly in the recent years, especially in the low earth orbit. "With increase of space objects, it will become difficult for operators to control their spacecraft safely and to avoid space junk. Would they fail to act diligently in that respect and provoke a collision with an uncontrolled object which could collide with a third party spacecraft, they could be held liable at fault under the 1972 Convention. It is then possible that satellite operators will see a greater interest to procure more space liability insurance in the very near future," opines Christain.

Earth Observation
Many countries have space laws or are in the process of formulating one which relates to launch and safety of satellites in orbit. These laws have been framed in accordance with the international law. But, only a handful of countries have so far addressed remote sensing data issues through laws or policies.

According to Gabrynowicz (2003), countries which have no legislation on remote sensing in place, follow international treaties. More often than not, US law is considered a benchmark and is therefore, given due consideration while framing policy directives.

Initiating to regulate earth observation activities, the Republic of Korea has enacted the National Spatial Information Act in August 2009 to build the legal framework on national spatial information and to promote the use and management of spatial information and facilitate public access to it. According to the Dr Joon Lee, Head of Strategic Planning Department, Korea Aerospace Research Institute, government will make a five-year national spatial information plan and annual execution plan. The Spatial Information Industry Promotion Act was also enacted in August 2009 to strengthen the competitiveness of the industry. In the Middle East, UAE sees the need for a legislation with which space activity could be coordinated and it need not necessarily be a space law. "We are taking up the initiative to get people together from the region to form a committee and make them agree that we should work together. A lot needs to be done on licensing, data sharing, using and data export in the region. Today, there is no need to reinvent the wheel. Instead, a country like Bahrain can utilise the capacities already developed in the region," said a spokesperson from Space Reconnaissance Centre, UAE.

A progressive space-faring nation, India, has Remote Sensing Data Policy (RSDP), where security aspects are paramount in framing the policy. The policy stresses the significance of remote sensing data for development activities but mandates license/permission from the government of India, through the nodal agency (National Remote Sensing Centre) for the acquisition and distribution of RS data. The policy allows distribution of data of resolutions up to 5.8 m on a non-discriminatory basis. But data less than 5.8m and up to 1m requires some procedural clearances. Data less than 1 m resolution requires clearance from High Resolution Committee (HRC).

Taking a dig at the conservative data policy of India, Liam Weston, Advanced Systems Manager, Sr, Operational Space, Ball Aerospace and Technologies Corporation says, "The policy of not allowing private companies sell data in India is more a protectionist act rather than a security concern. I have no doubt that India could be a world leader in geospatial industry if the private sector gets free access to data to manipulate it and create alternate services and products."

A more liberal approach is seen in the European experience. The nations of the European Union have strengthened their common policies in the Treaty of Lisbon, entered into force on December 1st 2009. The treaty sets the common understanding of European nations to work together on issues of environmental protection and civil security on a legally binding basis. Article 189 of this treaty also calls for a European Space Policy and to take the "necessary measures" to implement it.

The European Space Agency (ESA) and the European Commission have initiated the Global Monitoring for Environment and Security (GMES) project, where a fleet of satellites (SENTINELs) will deliver data for European wide information services, augmented by data from national and non-European earth observation systems.

ESA proposed a "free and open" policy for the distribution of SENTINEL data under the GMES project under which data is accessible via a generic on-line access mode and through a registration by anybody without difference between public, commercial and scientific use and in between European or non-European users. This change in ESA data policy will also affect the data distribution scheme of the existing ESA mapping missions (i.e. ERS-2 and ENVISAT). Talking on facilitating archival data, Dr Gunter Schreier from DLR – German Remote Sensing Data Center, says, "Recognising the value of long time series of data for environmental observation, the last ESA ministerial in 2007 has launched the Long Term Data Preservation (LTDP) initiative. Under this, a compilation of the existing European data archives and investigations in long term archive technologies and policies are performed to allow implementing a permanent programme, in-line with the policies of ESA, its member states and international bodies, to take care for the growing earth observation archives."

Talking about established practices in earth observation, Dr Scott Pace says, "according to UN remote sensing principles, a sensed State has a right to data about itself on reasonable terms and conditions and does not have rights over data of other State. Other than that, nations have the right to use space freely for peaceful purposes and they own the data acquired from space. If satellite is owned by government, then of course government owns the data and distribution is its discretion. If the satellite is a private one, it is licensed by government and it holds the IPR. This is a fairly established practice."
US – Focus shifts to commercial data
The United States Land Remote Sensing Policy Act of 1992 confirmed US supremacy in land remote sensing technology through the Federal Government's Landsat programme. It states that "to maximise the value of the Landsat programme to the American public, unenhanced Landsat 4 through 6 data should be made available, at a minimum, to US government agencies, to global environmental change researchers, and to other researchers who are financially supported by the United States Government, at the cost of fulfilling user requests, and unenhanced Landsat 7 data should be made available to all Observation users at the cost of fulfilling user requests".

The Act also states that the US government should adopt a data policy for Landsat 7 which allows competition within the private sector for distribution of unenhanced data and valueadded services. The Landsat 7 data, therefore, is available to all the countries that have entered into an agreement with U.S thereby, becoming non-US ground receiving stations. It is to be noted that USA retains ownership of all unenhanced data generated by Landsat 7. Another important policy that engages attention is the U.S Commercial Remote Sensing Policy, released in April, 2003. Among other things, it states that "United States Government civil agencies acting individually, or when beneficial, together shall acquire and operate U.S Government systems that collect data only when such data are not offered and will not be made available by U.S. Commercial remote sensing space systems." This suggests an increased reliance on commercial remote sensing satellites for data purposes, signifying a major shift from the dependence on data provided by government controlled satellites.

Data as a commodity
While for some nations, remote sensing data is a public good and is sacrosanct, for some others, data need not be restricted and can be viewed as a commodity and traded. "This in my opinion is one of the most challenging questions in the near future. Free flow of data is very important. It is a trend among nations to freely share data pertaining to disaster management, climate change," feels Ciro Arevalo Yepes, Chairman, UNCOPUOS. While Scott Pace argues remote sensing data need not necessarily be considered as a tangible good, Liam vouches that it is already a commodity. "One of the interesting aspects of US regulations that is different from other countries is that the licenses attempt to regulate the operations of a satellite and not the distribution of data. In USA, the system is privately funded and the data that comes from the system is not classified. So it is a commodity," he argues.

Comprehensive policy
Dr Scott Pace believes a country's space policy should be comprehensive. "It should not only look at science, research and technology but look at practical applications, security, education issues and development. It should encompass all these elements along with weighing the interests of the country because space cannot be put into a small box. It cuts across multiple interests," he says. Liam Weston identifies three essential aspects a country should take into consideration while formulating a space policy. According to him, the first and foremost factor to be taken into account is the country's national security. Second would be ensuring that activities comply with international treaties operational in space and foreign policy concerns while limiting liability of host government. Protecting the interests of private operators is another important aspect. "In space arena, there are very few truly private companies as this is a national objective for many countries. So the development of private side of space, whether it is in remote sensing or communications, will benefit a country. A great example is USA. US Military relies 80% on commercial communication companies for military communications internationally. It is much cheaper and easier for US Military to rent a transponder from a commercial satellite company rather than have one of its own," Liam argues. Promotion of commercial space activity is also important, according to Liam. He says, "Every space-faring State in the USA like Alaska, Virginia and Florida, that has launch facilities or space manufacturers have special tax laws or free-tax regimes on things bound for outer space as this activity attracts lot of economy and highly educated employees. This is in fact creating a competition among the States. Citizens want a high tech, clean and progressive industry that attracts jobs. Any space law has to contemplate creating a competitive environment." Supporting his argument, Scott Pace says, "I have a bias probably in this as the US policy does not preclude or deter space activities except where it involves national security and public safety."

Global Cooperation
Considering that the effects and uses of a country's space activities are not limited to its own territory, cooperation and coordination at regional and global levels is pertinent. Says Liam, "Countries should become signatories of the 1967 Outer Space Treaty and the Open Skies Treaty while promulgating national policies that conform to international laws. Also, countries should follow principle of reciprocity. If Israel allows selling of Indian imagery like US and Europe do, I think India should reciprocate and allow non-Indian satellite imagery to be sold in India and not use protectionist policies." Taking a different stance, Scott Pace says, "The conditions for each space sector are different. The conditions for remote sensing are different from that of GNSS and from that of space launches. We have to look at specific sectoral situation. International space law in general is fairly clear. What often is lacking is national policy and regulation that conforms to international law. There is no single authority like UN that is appropriate in all cases. It needs to be worked out among countries on case by case basis."

Space activity is a symbol of national power and a source of practical benefit. During Cold War, space exploration was a symbol of rivalry between USA and the USSR. Today, the International Space Station is a symbol of the most complex, expensive and technically challenging example of international cooperation. At this juncture, it is important for all space-faring and space-aspiring countries to take this collaboration further to use space technology effectively for the sustenance of the planet.

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