The 2nd edition of the GNLU Academy on Air and Space Law 2017, being organized by the Centre for Public International Law, Gujarat National Law University, in collaboration with the Institute of Air & Space Law, University of Cologne, was formally inaugurated on 16 September 2017. The week long academy seeks to engage all participating stakeholders in a discourse on contemporary challenges in the field of air and space.
The inauguration ceremony of the event was honoured by the presence of Air Chief Marshal Birender Singh Dhanoa, PVSM AVSM YSM VM ADC, Chief of the Air Staff, Indian Air Force as the Chief Guest; and, Air Officer Commanding in Chief of the South Western Air Command, Air Marshal R K Dhir, PVSM AVSM VM ADC and Mr. SV Satish, Executive Director (Aviation Safety/Information Technology), Airport Authority of India as the Guests of Honour. While the Guest of Honour, Mr. S V Satish, spoke about the new ventures being initiated by the Aviation Safety/ Information Technology Division of the Airport Authority of India and the role that India’s Ministry of Civil Aviation plays in developing India’s domestic and international aviation industries, the Honourable Chief Guest Air Chief Marshal Birender Singh Dhanoa in his address emphasized and elaborated upon on the role of the Indian Air Force as a partner in the aviation industry while at the same time raised concerns about space debris management and regulation of anti-satellite weapons.
The inauguration was shortly followed by the academy’s first session, which saw Prof. Dr. Wian Erlank, Associate Professor in law, North-West University (Potchefstroom Campus), South Africa, share his insights on the theme “Emerging Challenges in the Space Industry”. During the course of the session, participants were exposed to legal literature on a wide range of themes, including space mining, 3D printing, space tourism, space exploration, colonization and questions of sovereignty in outer space. He lucidly explained how future space missions might operate, while explicating the psychological, moral and ethical issues that may arise by virtue of increased activity in outer space. He emphasized on the role that private companies could play in all activities undertaken in outer space, and how they currently interact with government agencies and States. Prof. Erlank also touched upon the loopholes and inadequacies in the existing treaty mechanism governing activities in the outer space. The session also witnessed participants raising difficult, yet interesting questions about the role of artificial intelligence in outer space and the nexus between tort laws and space law.
The second day of the 2nd GNLU Air and Space Law Academy 2017 witnessed three intellectually stimulating sessions spanning issues of air law and space law.
First session on “Emerging Challenges in the Aviation Industry”, was chaired by Prof. Dr. Stephan Hobe, Director of the Institute of Air and Space Law, University of Cologne and co-chaired by Prof. Dr. Peter Paul Fitzgerald, Adjunct Professor, Institute of Air & Space Law, McGill University. While Prof. Hobe set the stage for the discussion by his opening remarks, Prof. Fitzgerald explained how rapidly the civil aviation industry changed between 1992 and 2012, and how countries dealt with the challenges it posed through a regulatory framework that did not envision such issues. A number of concerns were discussed during the course of the session, including the complexity of code-sharing arrangements and related issues of fair competition, carriage-specific issues, security concerns post 9/11, the role of air safety standards and the implications of differing regional standards, and the legal challenges that ‘space planes’ operating between two sovereign jurisdictions present. The significance of the role that the International Civil Aviation Organization plays in regulating the aviation industry was also discussed, in addition to environmental challenges presented by the industry.
The second session for the day picked up where the first left off, and covered aspects of “Consumer Rights in Civil Aviation”. As the Chair of the session, Prof. Fitzgerald traced the transition of aviation from an expensive and rare mode of transportation to a much sought-after and cheaper option today. He explained how airlines determine tariffs for check-in delays, missed flights, ticket refunds, change/cancellation fees, baggage allowance, etc. and how the emergence of “the consumer” as an entity with defined rights influences their policies. The Co-Chair of the Session, Mr. Pachnanda, then gave a detailed overview of the legal regime governing civil aviation in India. He explained how the Carriage by Air Act, 1972 incorporates international standards from the Warsaw Convention, the Hague Protocol and the Montreal Convention to deal with issues of liability in the sector, and pointed out how the Consumer Protection Act, 1986 overlaps with civil aviation to address deficiencies in airlines’ services.
The third session of the day, chaired by Prof. Hobe, sought to commemorate “50 Years of the Outer Space Treaty”. After providing a brief snapshot of the key provisions of the treaty, he explained why the generality of these provisions make the instrument flexible, adaptive and forward-looking. Two significant issues discussed during the session include the unilateral utilization of space resources by countries, and the need to balance the rights of developed and developing countries in the space regime. He made reference to the Space Benefits Declaration, and clarified the same in the context of the outer space being the common heritage of mankind. He opined that no country has the jurisdiction to unilaterally legislate upon the extraction of resources from outer space, and that the provisions on appropriation contained in the Outer Space Treaty and the Moon Agreement require international regulations for such extraction. He also touched upon issues of space debris mitigation and military use of outer space, and concluded that even if the Outer Space Treaty were to be concluded today, it would not have been fundamentally different. He hoped, however, to see environmental concerns addressed in greater detail.
The third day of the 2nd GNLU Air and Space Law Academy 2017 opened with a session on the theme “Space: The Final Frontier” delivered by Air Marshal RK Dhir, PVSM AVSM VM ADC, Air Officer Commanding-in-Chief, South Western Air Command. The Air Marshal adeptly addressed a number of issues, including the demarcation between airspace and outer space, national regulation of activities in outer space, private participation and, militarization and weaponization of outer space. He succinctly laid out international principles governing remote sensing, artificial earth satellites for broadcasting, nuclear power sources in outer space, etc. His informed views on India’s tryst with the outer space kindled the interest of all participants. The session concluded with a discussion on weaponization and space debris, and mechanisms to address these challenges.
The second session of the day witnessed Prof. Dr. Stephan Hobe, Director of the Institute of Air and Space Law, University of Cologne address the participants of the academy on the theme “International Liability in Space Law”. He carefully delineated international responsibility from international liability in the specific context of space law, before proceeding to deal extensively with provisions contained in the Convention on International Liability for Damage Caused by Space Objects, 1972. Elaborating on the concept of “damage”, he explained that it is a matter of interpretation as to what kinds of damages are covered within the ambit of the Liability Convention. Further, he distinguished between absolute liability and fault-based liability of States, and also referred to the liability concerns raised by the collision between satellites Iridium 33 and Cosmos 2251. He concluded the session by highlighting at least two contemporary developments in the realm of liability – first, the need for contractual liability, considering the entry of private entities into the field and secondly, the legal challenges that suborbital flights (which may or may not venture into outer space) would pose to the existing regime.
Mr. V. Gopalakrishnan, Policy Analyst, Indian Space Research Organisation chaired the last session of the day, on the theme “New Developments in Space Activities and Challenges to Space Law”. The session saw a comprehensive analysis of the theoretical and practical aspects surrounding space debris mitigation, such as the cascading effect that the Kessler Syndrome predicts, the UNCOPUOS Space Debris Mitigation Guidelines, maneuvering measures, collision avoidance measures, and the need for active debris removal, etc. He emphasized the need to hold States responsible for failure to remove space debris from outer space, particularly in light of Articles VI, VIII and IX of the Outer Space Treaty. He also touched upon technological developments that have helped create smaller and more cost-effective satellites, including CubeSATs, and also allow States to look at new launch systems, presenting overlaps with the intellectual property regime. He further elucidated on developments such as space tourism, involvement of private actors in the space regime, issues of financial security, use of space weapons, etc. and explicated why asteroid mining, which is currently supported by countries like USA, Luxembourg, UAE and Japan, may gain more traction in the near future.
The fourth day of the 2nd GNLU Air and Space Law Academy 2017 witnessed three sessions that addressed the nexus that air and space laws share with the law governing nuclear weapons, environmental law and competition law. The first session on the theme “Challenges of Nuclear Weapons: Doctrines and Policies” was chaired by Air Marshal Vinod Patney SYSM PVSM AVSM VrC (Retd.). He emphasized how despite the quantum of devastation nuclear weapons could cause, States have opted for a legal regime that does not prohibit their use, but only seeks to ensure their non-proliferation. Recent advancements in technology have only stood to encourage countries to update or add to their stockpiles. In this backdrop, he enumerated the legal challenges of the regime, viz. delegitimization of nuclear weapons, strict enforcement of non-proliferation and disarmament treaties, and addressing nuclear terrorism at the global level. According to him, India maintains a nuclear weapon arsenal with a deterrent objective – India follows the “no first use” policy.
The second session for the day on the theme “Environmental Regulations in Space Laws” was chaired by Prof. Dr. Wian Erlank, Associate Professor, North-West University (Potchefstroom Campus), South Africa. He began the session by addressing why enforcing the obligation embodied under Article 9 of the Outer Space Treaty to protect the environment is difficult, considering the standard of “cooperation and mutual assistance” employed in the provision, and the procedural nature of the duty. He methodically delineated major environmental concerns in space, viz. space debris, nuclear power sources on spacecrafts, solar power satellites that employ microwaves, mining, and even exobiological contamination and environmental repercussions associated with space colonization. He further opined that the framework set up under the Liability Convention, 1972 is insufficient to deal with these issues, and urged for the creation of more strict guidelines.
The third session for the day was chaired by Prof. Dr. Peter Paul Fitzgerald, Adjunct Professor, Institute of Air & Space Law, McGill University. Addressing the participants on the theme “Competition Issues in the Aviation Industry at the International Level”, he explained how bilateral air services agreements play a key role in determining these issues. He presented various business models, including hub and spoke network operations, government-backed mega carriers and metal neutral joint ventures, while relating these models to the ‘freedoms of the air’. Prof. Fitzgerald emphasized further that competition is generally examined through city-pairs analysis and that airline mergers are discouraged where such competition is substantially eliminated. While factors such as market definition, competition assessment, assessment of countervailing efficiencies and assessment of potential remedies are crucial for the approval of an airline merger, metal neutral joint ventures are concerned with questions of absolving ownership and control, designating the operating carrier for the purpose of the Montreal Convention and the like. He concluded the session by briefly describing airline competition between India and Canada.
The fifth day of the 2nd GNLU Air and Space Law Academy 2017 opened with a session on the theme “Military Air Law: Aerial warfare and international law, legal status of military aircraft and military airports” chaired by Prof. (Dr.) Stephan Hobe, Director of the Institute of Air and Space Law, University of Cologne. Prof. Hobe discussed how the Chicago Convention applies only to civil aircrafts and not to state aircrafts, and deems military, police and custom aircrafts to be state aircrafts. He clarified that the identification of military aircrafts is always dependent on the purpose for which an aircraft is used, irrespective of its registration as a civil aircraft, and such identification is necessary because state aircrafts enjoy immunity. He further discussed the issue of intrusion by a civil aircraft into the airspace of another State, by emphasizing that such intrusion is legal only when undertaken with the permission of such State whose airspace is being entered – otherwise, it amounts to aggression. He briefly touched upon Article 3bis of the Chicago Convention, which provides a State the obligation of protection of civilians and the conflicting right of self-defence based on proportionality. He closed the session with a brief discussion on Air Defence Identification Zones.
The second session for the day was chaired by Prof. Dr. Wian Erlank, Associate Professor, North-West University (Potchefstroom Campus), South Africa on the theme “South African Space Law Environment”. He informed participants that, in line with Article 6 of the Outer Space Treaty, South Africa passed the Space Affairs Act, which comprehensively addresses authorization, supervision and licensing issues. The South African Space Agency helped the country to transition from being a military-influenced technology developer to a technologically capable country in the scientific/ non-military terms. Discussing property and ownership rights in space, he explained that it is accepted that ownership is prohibited in outer space, as it is res communis and for the benefit of all, and national appropriation is prohibited by Article 2 of the Outer Space Treaty. Article 11 of the Moon Agreement, 1968 also prohibits commercial ownership in outer space, while permitting the use of property in outer space through a licensing mechanism that can be controlled by an international organization specifically established for that purpose. Prof. Erlank further pointed out that while the OST prohibits ownership by States, it does not prohibit ownership by private players. He concluded by emphasizing that property rights in outer space should ideally be based on the effective control exercised by a player over the celestial body or abandonment of the same. This would avoid the tragedy of commons and anti-commons by allocating property based on the law and economics approach.
The sixth day of the 2nd GNLU Air and Space Law Academy 2017 witnessed two sessions chaired by Dr. Sandeepa Bhat B, Professor of Law, West Bengal National University of Juridical Sciences, Kolkata.
The first session on the theme “Space Security and Militarization” saw Prof. Bhat eloquently lecture participants on how, even though militarization marked the advent of space ventures, Article 4 of the Outer Space Treaty expressly prohibits militarization of outer space. At the same, he cautioned participants about the drafting lacunae in the article. For instance, the article gives one the impression that there is a prohibition only on the placing in outer space of nuclear weapons that are weapons of mass destruction, and not all kinds of nuclear weapons. Moreover, by specifically referring only to the “moon and other celestial bodies” in the context of the obligation to use for peaceful purposes, the article paves way for further ambiguities. He succinctly explained provisions of the Moon Agreement, 1979, the Nuclear Test Ban Treaty, 1963 and the Anti-Ballistic Missile Treaty, 1972, which deal with militarization. He then directed the attention of the participants to the Strategic Defense Initiative (the Star War programme) launched by the USA, which saw the USA aggressively push for the use of anti-ballistic missile systems, in potential violation of obligations under the Anti-Ballistic Missile Treaty, 1972 and the Outer Space Treaty. Before concluding, he also briefed participants on the efforts of Russia and China to introduce a treaty on the Prevention of Arms Race in Outer Space (PAROS), which was opposed by the USA on the ground that the OST adequately addresses concerns about weaponization of outer space.
In the second session for the day, Prof. Bhat shared his insights on the theme of “Space Tourism”. He set the stage for the session by referring to Dennis Tito’s trip into outer space, which marked the advent of space tourism. He emphasized why space tourism is an important matter of consideration in the field today, owing to how the Outer Space Treaty is framed and also the increasing interest shown by private players, such as Virgin Galactic, in developing the field. He systematically delineated the legal challenges that space tourism presents – the demarcation of outer space to determine whether the regime of air law or space law will apply; the use of aerospace vehicles; the issues that registration and certification of such vehicles present, etc. Apart from these issues, he also pointed out that the term “personnel” as used in Article 5 of the Outer Space Treaty and the Return and Rescue Agreement, 1968, which lay out States’ obligations in situations of crash-landing or emergency, does not cover tourists and therefore, any rescue obligations of a State towards such tourists can only be expected in light of the humanitarian nature of these provisions. He also emphasized that space tourism would bring forth issues of protection of the space environment, identifying jurisdiction in case torts or crimes are committed on board an aerospace vehicle, issues of liability of States and private corporations, etc. He concluded by expressing his concern about Mars One’s one-way trip to Mars.
The last day of the 2nd GNLU Air and Space Law Academy 2017 began with a session on the theme “Terror in Air: The Indian Approach” chaired by Mr. Divya Tyagi, Assistant Professor of Law, Gujarat National Law University. Mr. Tyagi set the stage by referring to the Anti-hijacking Act 1982 in furtherance of India’s commitment at the international level. He dealt in detail the challenges faced by government during the hijack of IC-814. Thereafter, he discussed the Anti-hijack Policy 2005 followed by the Standing Committee Report on the Anti-hijacking Bill 2014. He elaborately analysed various provisions of The Anti-Hijacking Act 2016 and its efficacy in tackling the menace of hijacking.
The Valedictory Ceremony of the 2nd GNLU Air and Space Law Academy 2017, began with a welcome address delivered by Prof. Dr. Bimal N. Patel, Director, Gujarat National Law University, Member, Law Commission of India and Member, National Security Advisory Board, Government of India. He highlighted how GNLU is committed to the cause of giving students, scholars and industry players exposure into this subject and encouraged institutions to collaborate with GNLU to provide more such opportunities. He was profusely grateful to the empanelled resource persons, and particularly to Prof. Dr. Stephan Hobe, for reposing their faith in GNLU and making the academy a success.
This was followed by an address by the Guest of Honour for the Valedictory Ceremony, Prof. Dr. Stephan Hobe, Director, Institute of Air and Space Law, University of Cologne, Germany and Holder of the Jean-Monnet Chair for Public International Law, European Law,European and International Economic Law. He began by thanking Prof. Dr. Bimal N. Patel and the resource persons for their constant, unwavering support and collaborative efforts, and appreciated the quality of students in this edition of GASLA. He explained that he enjoys sharing his knowledge on space law with people in India and emphasized that such collaborations between stakeholders in different countries are absolutely essential, especially to combat common challenges such as climate change.
The ceremony also witnessed participants receiving certificates and sharing their experiences at GASLA 2017. It closed with Mr. Divya Tyagi, Academy Convener, recording his gratitude towards all the resource persons, participants and the people who made the event possible.