The need to broaden the framework for space law in Nigeria continues to grow in the light of increasing space activities in the world. It is important that Nigeria invests financial and human resources in the legal, regulatory and institutional framework relating to space in order to position the country to enjoy benefits of space activities which include, national security, urban planning, food management and security, communications, agricultural management, disaster management etc.
The view that space exploration activities lie squarely within the province of Governments is not accurate as a Country like South Africa has it’s Space Industry dominated by its private sector. This article will briefly review the 10-year-old NASRDA ACT in comparison with the recently enacted UK Space Industry Act, 2018 with a view to making recommendations to bring the Act up to world standards and improve space law and space-related activities in Nigeria.
SPACE LAW IN NIGERIA – NASRDA ACT 2010
The primary legislation governing space activities in Nigeria is the National Space Research and Development Agency (NASRDA) Act 2010 which establishes the National Space Research and Development Agency. The Agency was set up to encourage capacity building in space science technology development and manage the development of satellite technology for various applications and finally enhance the development and entrenchment of research.
It is notable that the Act appreciably adopted some of the provisions in the UK Outer Space Act. The NASRDA Act is divided into 6 parts as follows:
Part 1- establishes the agency and the National Space Council (NSC). It sets out the remuneration, and tenure of office of Council members amongst other allied matters provision.
Part 2 – Sets out the functions of the Agency and power of the NSC. The Agency has a duty to strengthen capacity building in the space science technology development; review the Nation’s space policy and develop national strategies for exploitation of outer space amongst others. The NSC is conferred power amongst others to grant approval for the Agency to partner with third parties on space-related activities.
Part 3- puts in place the structure of the agency in terms of offices and department and mandates it to maintain a Register of Space Objects. The NSC is given the power to issue a license to body corporates or individuals to carry out space and satellite-related activities.
Part 4- provides for the staffs of the agency, specifically, the Director General’s duties, tenure and qualification for the office.
Part 5- establishes a fund for the Agency and provides for how the fund should be disbursed.
Part 6- contains miscellaneous provisions on pre action notice requirement, the Agency’s power to acquire property, make regulations etc.
It becomes obvious from these provisions that the focus of the Act is how NASRDA would be administratively effective. The Act is silent on salient issues such as the requirement for environmental impact assessment in applying for space activity license, the NSC’s power to revoke or approve the transfer of a license, the implications of failure to obtain a license before involving in space etc.
Therefore, while the NASRDA Act appears to have attempted to set out a pathway for the development of space activities in Nigeria, it is quite clear that there is a need to advance the current space law regime, especially in the light of other space legislative advancements in other countries. To this end, the NASRDA Act will be briefly compared with the recently enacted UK Space Industry Act (SIA) 2018.
THE INTERNATIONAL SPACE LAW FRAMEWORK
Nigeria is a signatory to four space-related international treaties. Consequently, this imposes international obligations on Nigeria, which further necessitates the need for local legislation that will properly position the country in the evolving world of space-related activities. These Treaties are:
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies 1967, also known as Outer Space Treaty encapsulates the basic framework on international space law, including principles such as, the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind; outer space shall be free for exploration and use by all States; and States shall be responsible for national space activities whether carried out by governmental or non-governmental entities.
- The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968, imposes an obligation on any State party that becomes aware that the personnel of a spacecraft are in distress to notify the launching authority and the Secretary-General of the United Nations and provide all possible assistance to rescue the personnel of a spacecraft.
- The Convention on International Liability for Damage Caused by Space Objects 1972, also known as the Space Liability Convention imposes international responsibility on any member party for all space objects that are launched within their territory, regardless of who launches the space object. If two states work together to launch a space object, then both of those states are jointly and severally liable for the damage such as space object causes. Claims under the Liability Convention must be brought by the state against a state.
- The Convention on Registration of Objects Launched into Outer Space 1976, commonly known as the Registration Convention requires states to furnish the United Nations with details about the orbit of each space object. The register is kept by the United Nations Office for Outer Space Affairs (UNOOSA).
From the above, several obligations are imposed on the State parties under the existing space treaties. As a result, State parties will be expected to enact municipal laws that will be targeted at promoting the spirit of the Space Treaties. To this end, Nigeria has enacted its local legislation which seeks to promote and secure the development of space activities in the country.
From the synopsis above which summarises the international obligation of Nigeria in space activities, it is obvious that Nigeria would be held responsible for any space activity carried out within its territory even if in reality such activity was carried out by a private sector member. We would now proceed to glimpse into the statutory currently in place to regulate Space activities and further inquiry into the satisfactoriness or otherwise of the legislations regulating space law in Nigeria.
THE UK SPACE INDUSTRY ACT 2018 VIS A VIS THE NASRDA ACT
Having identified that the NASRDA Act requires an overhaul, it is important to examine provisions of the SIA which can be incorporated into NASRDA Act. Some of which include:
- Definition of Space Flight Activity. One of the major provisions introduced by the SIA under Section 1 is a definition of the scope of Spaceflight activities to be regulated by the Act. Section 36 of the NASRDA Act which constitutes the interpretation sector of the Act only define terms like ‘agency’; ‘fund’, ‘chairman’ etc. The NASRDA Act, unlike the SIA, is silent on the definition of industry-specific terminologies like ‘space issues’, ‘space application programmes’; ’satellite data’ and ‘space data’ which are recurrent terms in the Act. It is important that these terminologies are defined to ensure accurate interpretation of the law in line with the intent of the lawmakers.
- Impose Sanctions for failure to obtain License before embarking on Space Activity. Section 3 of the Space Industry Act Uk, 2018, (SIA) prohibits involvement in space activities without a license and criminalises the act of making false statements in a bid to obtain license for carrying out space activities. This is unlike Section 9 of the NASRDA ACT which merely makes provision for powers of the NSC to grant license for activities relating to satellite and space data gathering and is silent on the effect of failure to obtain license before engaging in space activities.
- Incorporate Requirement For Sending Notice to Persons That May Be Affected By Space Activities. Section 5 of the SIA defines a range as a zone which is subject to restriction or warning because of a potential space-related activity while Section 6 requires that notices must be sent to persons within a range, and who may be affected by space flight activities. When compared with Section 9(2) of NASRDA Act which provides that license for satellite and space activity will not be granted unless it is ascertained that grant of same will not jeopardise the lives and property- it does appear that incorporating a requirement that notices be sent to the public residing or having business within areas that are reasonably proximate to location for space and satellite activities, would be a step in the right direction. Such a notice would serve as a preventive rather than a curative measure.
- The requirement of Risk Assessment before embarking on Space Activities. In addition to the Regulator’s power to only grant license for space activities when it is certain that the grant won’t impair public health and UK’s obligations under International Space Law, Section 9 of the SIA makes it compulsory that an applicant for space activity license must carry out a risk assessment on the health of persons who would be involved in the space activities. There is no similar provision in the NASRDA Act. The health of persons put in consideration by the NSC in granting a license for space activities in Nigeria seems to be limited to the general public with no regard to the health of the personnel involved in space activities (Section 92(2)(b) of the NASRDA Act). It is important to insert a provision like that of Section 9 of the SIA to the NASRDA Act which goes a long way improve space law in Nigeria and encourage space industry experts to willingly participate in the country’s space activities.
- Empower NSC To Revoke And Approve Transfer Of License. Section 15 of the Act provides for the Regulator’s power to approve transfer or license, a variation of license and revocation of license as occasion demands. Indeed Section 9(2) of our NASRDA Act only provides for the grant of license and is silent on revocation or transfer of same. It’s important the NSC be authorised by statute to revoke and approve a transfer of license in order to ensure regulatory compliance on the part of licensees and promote ease of doing business in the event of mergers, acquisition or other corporate restructure or otherwise between licensed body corporates and un-licensed body corporates.
- The imposition of Liability on Operators for Non-Compliance. Section 34 of the SIA provides that the operator will be liable to pay damages where injury is caused to lives and properties during its operation of space activities. The liability will however not arise where the activity is carried out in substantial compliance with the provisions of the Act. The NASRDA Act does not contain any related provision but it is important to amend the Act to contain such a provision especially in view of the Outer Space and Liability convention which imposes liability on member state for space activities carried out by private sector within it.
- Space Risk Insurance. Section 38 of the SIA empowers the UK Space Industry Regulator to demand that an operator of Space activity be insured in respect of prescribed risks and liabilities. Again, the NASRDA Act does not provide for insurance against space risks. The essence of including a provision for insurance os space risks under the NASRDA Act cannot be overemphasised especially in view of how expensive it is to engage in the space industry.
- Criminalise Offending Acts arising from Space Activities. Sections 51 to 58 of the SIA provides for offences that can be committed under the Act. It criminalises acts performed in a Spacecraft launched from the UK, which acts would normally constitute an offence if it occurred in the UK. Now, there is no Section of NASRDA Act that bothers on Offence and Sanctions. It is, however, important to infuse a provision on offences and sanctions under the NASRDA Act, so as so to confer jurisdiction on appropriate Nigerian Courts to entertain criminal cases emerging from space activities.
Giving that the Outer Space Treaty and Liability Convention imposes liability on a state for activities carried out by private sectors within the state and the recent government call to private sector to collaborate with it on space activities, it is important that there is sufficient legislation on ground to protect the exposure of the Nation and allow for an independent launch capacity. There is indeed the need to review the frameworks regulating space law in Nigeria and amend the NASRDA Act.
Written By: Kofo Olabalu – (Associate)