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New rules for India's space program are now in effect with respect to India's access to United States space technology and components - thanks to a Technology Safeguards Agreement (TSA) signed on July 20 by US Secretary of State Hillary Clinton and India's Foreign Minister S M Krishna.
However, many are misreading the full scope and impact of this TSA. Yes, the Indian Space Research Organization (ISRO) is now considerably closer to launching US commercial satellites - as well as European commercial satellites with US components - but ISRO still has a long way to go.
According to a US State Department's Directorate of Defense Trade Controls (DDTC) notice last month entitled, "Licensing
Satellite Components for Launch from India," this new TSA, "effectively changes US Government policy to permit the launch of civil or non-commercial satellites containing US ITAR [International Traffic In Arms]-controlled components on Indian space launch vehicles.
"For the purposes of this policy, 'civil or non-commercial satellites' does not include commercial satellites [communications or otherwise]. Commercial satellites will continue to be subject to a presumption of denial," the DDTC notice stated.
"Presumption of denial" simply means go ahead and submit a license application for export of a commercial satellite with ITAR content, but do not hold your breath because without a high priority US foreign policy interest - ie, extraordinary circumstances - this application is dead on arrival.
"The export from the US of ITAR parts and components to India for incorporation by India into an Indian space vehicle was permitted prior to execution of the TSA," said John Ordway, a partner at Berliner, Corcoran and Rowe, LLP in Washington, DC.
"If misunderstandings were to arise in the DDTC licensing process following execution of the TSA, they would probably arise over what is civil or non-commercial use of a satellite."
An attempt to clarify matters with Anthony Dearth, the DDTC's chief of the Space and Missile Technology Division, was unsuccessful.
"The TSA will ensure monitoring by the US side against any diversion or misuse of equipment or technology," said Rajeswari Rajagopalan, senior fellow in security studies at the New Delhi-based Observer Research Foundation.
"Negotiations on a possible Indo-US TSA have been underway for the last few years. The US has been insisting on restrictive movement of the payload, constant overseeing and monitoring by the US, and solid firewalls separating civil and military payloads. However, the current agreement is [identical] with what the US has with other countries, [and] is essentially driven by US laws. India did not have much maneuverability in negotiating the details."
According to Rajagopalan, even with this TSA, the profitable market for the launch of US commercial satellites or even third-country commercial satellites with US components remains off limits to India until a separate Commercial Space Launch Agreement (CSLA) is signed. Negotiations continue, but serious differences are not being successfully resolved.
"US communications satellites are part of the US Munitions List [USML], and a separate certification from the US State Department will be required to enable ISRO to launch [them]. The CSLA is still insufficient for some purposes because there is another layer of clearance and certification required," said Rajagopalan.
As David Karl observed in his recent Asia Times Online commentary, "The Clinton trip underscored how the secretary has taken ownership of the India portfolio in the Barack Obama administration, filling an important void at the top levels of the US government that has existed for several years." (See Clinton's India visit a low-key success Asia Times Online, August 5, 2009.)
However, regardless of who owns the India portfolio, many US space companies want the US State Department to be replaced by the US Commerce Department, as they view the latter as more supportive when it comes to commercial satellite exports. These companies also want many existing rules revised if not eliminated entirely, including the removal of commercial satellites from the USML, a measure which is now under consideration by the US Senate after being recently approved by the US House of Representatives.
The new TSA, "represents positive progress in reversing the US's obsolete, arrogant, and counterproductive export control regime. However, much remains to be done, particularly in regard to re-evaluating the classification of space hardware in the context of an overall review of the USML," said Mike Gold, the director of Nevada-based Bigelow Aerospace's Washington DC office and chair of the US Federal Aviation Administration's Export Controls Working Group under the Commercial Space Transportation Advisory Committee. [1]
However, while India would benefit immensely from this regulatory change, the current legislation on Capitol Hill would still prevent any changes to the USML affecting China.
"Although I understand the politics of the situation, I question the policy of isolation that we are practicing vis-a-vis China, and believe, if nothing else, we need to have a robust discussion as to if this policy is really helping us to achieve our legitimate foreign policy goals," said Gold.
"The legislation does not provide for an ongoing review of the USML or establishing a standing entity to conduct such work. Technology is not static, and, after five years, we will find ourselves with the same problems in terms of the obsolescence of the USML that we are facing today. We must provide for an ongoing review process. Technology will not stop changing, and therefore any finite attempt to review and revise a list like the USML is destined to fail."
Regardless of what happens to the USML, the US government is being constantly pushed and pulled in various directions by different departments which tend to disagree more often than agree on which is the best approach to take in South Asia.
"There has always been internal bickering between various governmental departments - the departments of Defense, Commerce, State, Energy and the National Security Agency - along with big defense [contractors]," said Rajagopalan. "In fact, the Pentagon maintained that the State Department still had a Cold War approach as it relates to its policies to South Asia. On the other hand, the State Department often argued that any arms transfers to India would adversely impact the military balance of the region. Cooperation on space technology could potentially create similar concerns."
According to Sourabh Gupta, senior research associate at Washington, DC-based Samuels International Associates Inc, readers should not underestimate the significance of what took place on July 20.
"Clearly the exchanges between the two countries, rather than the TSA itself, is the more significant factor. The TSA is just an umbrella arrangement that simply opens the door to a host of more specific, contentious but rewarding arrangements," said Gupta. "The exchanges [in the] meantime help build a culture of trust that's value exceeds any one agreement - and can in fact be leveraged across the spectrum of bilateral relations."
"Getting beyond the technology denial regime, imposed by the West ever since [India's] nuclear test in 1974, has been a touchstone of Indian governments ever since - and not merely for enhancing technological competencies," added Gupta.
For one of Ordway's clients based in the United Kingdom, the TSA opens the door to an enticing possibility.
"It means that my UK client that builds remote-sensing satellites that contain ITAR content now can apply for a license from the US State Department to 're-export' such satellites to India for launch on ISRO launch vehicles - again, if the remote-sensing satellites are for civil or non-commercial uses," said Ordway.
"On the other hand, the TSA and DDTC's implementation of the TSA would not permit the launch on an ISRO launch vehicle of a commercial non-US remote-imaging satellite that contains ITAR content."
Besides ISRO, beneficiaries of the TSA might also include any foreign universities that build very small, so-called "pico" satellites with ITAR content, although this is a rare event indeed it would provide an alternative to Russian launch vehicles. It is possible, for example, that the TSA could speed India's deployment of a constellation of small, formation-flying earth observation satellites which would mirror what a few other countries have already placed in orbit.
