Satellite Power System (SPS) International Agreements HCP/R-4024-12 October 1978 Prepared for: U.S. Department of Energy Office of Energy Research Satellite Power System Project Office Under Contract No. EG-77-C-01-4024 DOE/NASA Satellite Power System Concept Development and Evaluation Program
Satellite Power System (SPS) International Agreements HCP/R-4024-12 Dist. Category UC-11,41,60,63, 63a,b,c,e,64,66e,95f,97c October 1978 Prepared by: Stephen Grove PRC Energy Analysis Company McLean, Virginia 22102 Prepared for: U.S. Department of Energy Office of Energy Research Satellite Power System Project Office Washington, D.C. 20545 Under Contract No. EG-77-C-01-4024 DOE/NASA Satellite Power System Concept Development and Evaluation Program
Acknowledgment Special thanks are due for the courtesies received from the Department of Energy, the Outer Space Affairs Division of the United Nations Secretariat and the PRC Systems Sciences Co. for providing research materials which were not readily available for general distribution. Similar gratitude is owed to ITU officials who generously gave their time for unofficial interviews in connection with this study. The following people reviewed the draft of this paper: Harold Berger Attorney 1622 Locust Street Philadelphia, Pa. 19103 Leonard David Program Director Forum for the Advancement of Students in Science and Technology 2030 M. Street, N.W. Washington, D.C. 20036 Paul Dembling General Counsel U.S. General Accounting Office Washington, D.C. 20548 James J. Gehrig Counsel for the Senate Committee on Science and Technology Washington, D.C. 20510
Executive Summary This study identifies the problems in obtaining international agreements on geostationary orbit availability, microwave frequency allocations and microwave frequency standards for satellites transmitting solar power. Its findings and recommendations are based on relevant literature, official documents and their interpretation, as well as on an evaluation of recent trends in the world community. With respect to geostationary orbit availability the paper reviews applicable provisions of international space law, the Bogota Declaration and arguments pro and con. It finds the claims of equatorial countries legally and scientifically untenable but notes a fairly substantial support in the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space for equity and fairness in consideration of the development of legal principles governing the use of geostationary orbit within the framework of the Outer Space Treaty. A review of International Telecommunication Union (ITU) related instruments indicates that while the 'first come, first served' principle regarding the use of geostationary orbit has remained basically unaltered from a strictly legal point of view, the key issue will be how to translate what the ITU calls — the 'efficient and economic use' and 'equitable access' into more specific legal and technical principles and rules relating to the geostationary orbit for — what the Outer Space Treaty calls — the "benefit and interests" of all countries. Insofar as frequency for microwave power transmission is concerned, the most crucial issue pertaining to ITU is whether it would have competence to deal with such transmission. This in turn may depend on definition of powdr transmission by microwaves from space and interpretation of the word 'telecommunication'. The problem is complicated further by the inseparability of geostationary orbital positions and coordination of the use of radio spectrum to avoid harmful interference. Perhaps the most important key issue is whether the United States should internationalize the SPS. With respect to key issues the various U.S. policy options, strategies and time frames are analyzed. The paper concludes with recommendations for further short- and long-term studies.
List of Abbreviations CCIR - International Radio Consultative Committee ESA - European Space Agency GEOSAT - Geostationary satellite ICAO - International Civil Aviation Organization IAEA - International Atomic Energy Agency IFRB - International Frequency Registration Board IMCO - International Maritime Consultative Organization INMARSAT - International Maritime Satellite Organization INTELSAT - International Telecommunication Satellite Organization ITC - International Telecommunication Convention, MalagaTorremolinos, Oct. 25, 1973. ITU - International Telecommunication Union SPS - Satellite Power System UNCOPUOS - United Nations Committee on the Peaceful Uses of Outer Space UNESCO - United Nations Educational Scientific and Cultural Organization WARC-BS - World Administrative Radio Conference for the Planning of the Broadcasting-Satellite Service in Frequency Bands 11.7-12.2 GHz (in Regions 2 and 3) and 11.7-12.5 GHz (in Region 1) , Geneva, 1977 WARC-ST - World Administrative Radio Conference for Space Telecommunications, Geneva, 1971 WHO - World Health Organization WMO - World Meteorological Organization
Acknowledgment............................................iii Executive Summary ..................................... v List of Abbreviations....................................V11 1. INTRODUCTION ............................................. 1 1.1 Background...................................... 1 1.2 Objectives and Tasks ............................ 1 1.3 Assumptions .................................... 2 1.4 Methodology .................................... 3 2. SURVEY OF RELEVANT LITERATURE ............................ 3 2.1 General Background Materials .................... 3 2.2 Specialized Materials .......................... 5 3. ANALYSIS AND EVALUATION OF RELEVANT FINDINGS ............... 6 3.1 Geostationary Orbit.......... 6 3.1.1 Physical Nature of Geostationary Orbit ... 6 3.1.2 International Space Law .................... 8 3.1.2.1 International Customary Law .... 9 3.1.2.2 The Outer Space Treaty of 1967.. 10 3.1.3 The 'Bogota Declaration' and Arguments Pro and Con............................ 14 3.1.3.1 The 'Bogota Declaration' ........ 14 3.1.3.2 Arguments Pro and Con...............15 3.1.4 Conclusion..................................19 3.1.5 ITU Instruments..............................20 3.1.5.1 Conclusions ...................... 24 3.2 Microwave Frequency Allocation .................. 27 3.2.1 ITU's Role............................... 2 7 3.2.1.1 Purposes of ITU.................... 28 3.2.1.2 Meaning of 'Telecommunications' . . 29 3.2.1.3 Conclusion ...................... 32 3.3 Microwave Exposure Standard .................... 33 3.3.1 Nature of Microwave Beam.................... 34 3.3.2 Effects of Exposure..........................34 3.3.3 International Aspects ...................... 35 3.3.4 Conclusion..................................36 4. KEY ISSUES, OPTIONS, STRATEGIES AND TIME FRAMES............36 5. RECOMMENDATIONS FOR FURTHER STUDIES .................... 51 5.1 Short-Term Studies ............................. 51 5.2 Long-Term Studies ............................. 52 6. BIBLIOGRAPHY.............................................. 64 7. APPENDIX ('Bogota Declaration') ........................
I. INTRODUCTION 1.1 Background The exhaustible and dwindling supplies of conventional energy brought into sharp focus in recent years have directed attention at the national level toward the possible utilization of a virtually inexhaustible source of energy, namely, solar power. One of the current scientific concepts involves a Satellite Power System (SPS) in which satellites in geostationary orbit (GEOSAT-s) would collect light energy from the sun and convert it, first, to electricity and, then, to microwaves for transmission to earth and subsequent reconversion to electricity. The technological feat of setting up such SPS is estimated to involve a very large investment running into billions of dollars. A careful analysis of all the factors and ramifications, including the impact of such project on socio-economic, legal, environmental, international and other considerations and an evaluation of alternative courses of action and their likely outcomes and effects is imperative before any rational decisions can be made. 1.2 Objective and Tasks The objective assigned to this paper is to assess the problems in obtaining international agreements on geostationary orbit availability, microwave frequency allocations and microwave exposure standards.
In accomplishing the above objective, the set tasks of this paper are threefold; first, to delineate in the light of historical precedents the problems that will need to be resolved, and the potential time delays in doing so to obtain agreements in these three basic areas; second, to identify and make a preliminary evaluation of alternative strategies, including perhaps, foreign or United Nations' participation in the SPS program to facilitate such agreements and third, to establish areas requiring additional study and provide a recommended approach. 1.3 Assumptions The SPS concept, stipulated as an assumption or guideline for this paper, has been described in the following terms: The SPS concept involves placing a satellite equipped with large solar cell arrays in orbit around the earth. The arrays collect light energy from the sun and convert it to electricity, which is then converted to microwaves and beamed by a transmitting antenna located on the satellite to a receiving antenna located on the ground. The receiving antenna (rectenna) changes the microwaves back into electricity which can then be fed directly into the utility network. Both the satellite and the rectenna are on the order of 100 square kilometers in size and the system is designed so that each rectenna will provide 5,000 megawatts to the utility grid. The scope of the concept can perhaps be placed in perspective by considering that the generating capacity of 20-30 of these satellites would be equal to all the electrical power generated in the United States in 1975. Furthermore, projected energy demand at the turn of the century as well as basic economics indicate that an even greater number of satellites be programmed. Such a system may be confidently anticipated to have far-reaching impacts on society.
1.4 Methodology In an attempt to achieve the set objective and carry out the indicated tasks, this paper in accordance with the required format will include: (a) A survey of relevant literature and related work; (b) An analysis and evaluation of relevant finding; (c) A determination of key issues and general observations on options, strategies and time frames, (d) Recommendations for further study, and a (e) Bibliography and an Appendix. 2. SURVEY OF RELEVANT LITERATURE The literature pertaining to the subject matter may be characterized as vast in a very generalized sense (especially in terms of background materials pertaining to the first task) but in a more specialized sense (especially with reference to the second and third tasks), it appears practically nonexistent. 2.1 General Background Materials An obviously not exhaustive identification of general background materials includes: books, treatises, monographs (published and unpublished); articles, comments, etc. in legal, scientific and other journals; yearbooks, monthlies, weeklies and other magazines as well as newspaper articles; laws, executive orders, judicial and administrative decisions, congressional materials, particularly committee and subcommittee hearings, reports on activities,
meetings, etc. of governmental agencies and other public and private (especially professional) organizations; international treaties and agreements (bilateral and multilateral, regional or global), including charters, statutes, etc. of international organizations (governmental and nongovernmental) , resolutions, records, minutes of meetings, etc. of their organs, bodies, committees, consultants, etc.; correspondence, interviews, discussions with officials and experts. The listed sources are relevant to the extent that they relate to the subject matter of the present inquiry. At first sight, the above list may appear too broad but upon closer scrutiny relevant materials may be found in virtually any of the indicated sources. To take a random example, a perfunctory glance may suggest relevance of the major space treaties currently in force, particularly the Outer Space Treaty of 1967, but further reflection and research may reveal possible relevance of a host of bilateral agreements, especially between the United States and other nations. Similarly, a first reaction may suggest relevant activities and records of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) , its Technical and Legal. Subcommittees, and those of the International Telecommunication Union (ITU) and its International Frequency Registration Board (IFRB) but a deeper inquiry may reveal some relevance of the possible role, interest or impact of such international organizations as, for instance, the World Meteorological Organization (V\MO) , the World Health Organization (WHO), the United Nations
Educational^ Scientific and Cultural Organization (UNESCO) and, possibly, others. That activities and publications of private organizations, national and international, ought to be kept in mind may be intimated by reference to such random examples as the meetings and conferences of the American Institute of Aeronautics and Astronautics, the American Astronautical Society and the Colloquia of the International Institute of Space Law of the International Astronautical Federation. 2.2 Specialized Materials As intimated beforehand, there appears to be a dearth of materials and information more specially related to the areas of investigation, particularly those associated with the second and third tasks. References with very few exceptions if any are mostly brief, extremely general, and largely indirect as may be seen from relevant textual annotations. This seems more true with respect to published information relative to the topics of obtaining international agreements on microwave frequency allocation for transmission of electrical power and microwave exposure standards. In view of this, the present inquiry in the indicated areas falls largely on virgin grounds based on a somewhat speculative assessment with whatever pitfalls and errors in subjective judgment that may entail. Additionally, -- apart from the subject matter's importance -- the above fact accounts for what appears to be a rather lopsided emphasis on the treatment accorded to issues of geostationary orbit availability.
An itemized, selective list of relevant general background and specialized materials may be found in the attached Bibliography. 3. ANALYSIS AND EVALUATION OF RELEVANT FINDINGS Our analysis and evaluation of relevant findings will start with a discussion of the issues involved in obtaining international agreements on geostationary orbit availability for power transmission by satellite and move on to such issues relative to microwave frequency allocations and microwave exposure standards. 3.1 Geostationary Orbit The technological advances of the space age have opened the door toward the increasing utilization of the so-called "geostationary orbit" by satellites for telecommunication, broadcast, meteorological and other services. More recently, the possible utilization of geostationary orbit by satellites for purposes of solar energy transmission to earth has come under serious consideration.3 3.1.1 Physical Nature of Geostationary Orbit The geostationary orbit is a circular orbit at a distance of approximately 22,300 miles (35,800 kilometers) above earth's equator. A satellite placed in this orbit turns about the polar axis of the earth in the same direction and with the same period as those of the earth and its orbit lies in the plane of the equator. Such satellite appears stationary in relation to
the underlying point. The space occupied by GEOSAT-s has been described as a "three dimensional corridor" in which satellites move at different alti- tudes, speeds and inclinations to the plane of the equator. While this corridor has its obvious limitations with respect to its physical size, the major concern has been the prevention of electromagnetic interference with other satellites and other users of the radio spectrum. The minimum separating distance required between GEOSAT-s may vary depending on the type of criteria used for arriving at a determination. These criteria include the size of the satellite, the stability of the orbit, the degree of tolerated electromagnetic interference, the state of technology, and other factors. This may explain the wide disparaties in the estimates of the maximum number of satellites (ranging from 180 to 1800) . . . that could occupy the geostationary orbit at a given time. As a recent U.N. study put it: "It is impossible to state how many satellites can be accomodated in the geostationary orbit. It is, however, possible to find out if a specific satellite system, with all physical parameters defined would interfere with other systems or not"$ In 1977 there were 9 satellites placed in geostationary orbit and the total number in orbit reached about 100 in that year. It has been estimated that between 1980 and 1991 there will be 274 geostationary satellites launched and that there will be 239 active satellites m geostationary orbit during 1990. Whatever the eventual increase will be—which is expected to
continue with technological advancements and the possible emergence of additional types of uses — it appears that continued increase in the number of claims to the use of the geostationary orbit is likely to create overcrowding problems presenting harder choices with respect to the determination of priorities, the allocation of func- tions and uses, both domestically and internationally. The validity of this observation appears to be — in a very general sense — substantiated by the International Telecommunication Convention (ITC) of 1973 which—in dealing with the technical aspects of the use of frequency bands for space radio services describes the geo- stationary satellite orbit as one of the "limited natural resources". While the use of this particular phrase may have been somewhat unfortunate if compared to such conventional resources as copper or iron ore, it does convey the idea of the finite availability of geostationary orbital positions for orderly and beneficial uses. In order to be able to make an appropriate assessment of the problems that may arise in obtaining international agreements on geostationary orbit availability, it appears essential to review the relevant lex lata of international space law, the recent claims of equatorial countries to segments of the geostationary orbit, the positions of other countries regarding these claims, and some of the ITU instruments which have a bearing on the subject. 3.1.2 International Space Law Most of the applicable provisions of international space law which bear on our subject matter have been quite extensively analyzed m an earlier study. The general conclusion of that study was
that "existing principles of space law present no fundamental impediments to the development and implementation of a satellite 13 power system." Inasmuch as this writer is in basic agreement with that general conclusion and most of its supporting premises which were drawn from a detailed examination of relevant provisions, it would appear superfluous, if not redundant, to reanalyze—even if it were likely to be done in a somewhat different form and perhaps with different emphasis—the same stipulations in detail, the more so since the weight of authority including state practice to date appears to support it. However, a few additional observations concerning the permissibility of the utilization of the geostationary orbit by satellite solar power systems under current international law may be necessary to put the subject matter into proper perspective. One of the very first issues in connection with the applicability of international space law to the geostationary orbit area is whether or not it is located in outer space. If it is not, the space treaties would not apply to it short of an explicit provision to the contrary. 3.1.2.1 International Customary Law At the beginnings of the space age, there have been many theories and proposals advanced to determine the more precise demarcation line between air space and outer space not from a physical 14 but from a legal point of view. Despite these efforts there has been no internationally accepted determination of where outer space precisely begins.
While there has been no demarcation of the more precise boundary line between air space and outer space, many years of spacial experiments, both before and after the conclusion of the Outer Space Treaty,15 have seen the emergence of what has been described as a new rule of customary international law to the effect that artificial earth orbiting satellites move in outer space1.6 This observation—made prior to the recent claims of sovereignty by equatorial countries over segments of the geostationary orbit above their territories17— was based on the fact that no formal objection had been made to the orbiting of such satellites by underlying states. Since geostationary satellites orbit at heights far above many other earth orbiting satellites, there can be no doubt that the geostationary orbit area is in outer space. Until the recent claims of equatorial countries, the legal validity of the statement that earth orbiting satellites move in outer space appears not to have been challenged by any state. 3.1.2.2 The. Outer, Space Treaty o£_ 1.16 7_ The Outer Space Treaty of 1967 was negotiated in pursuance of a desire to establish principles governing man's activities in outer space. These activities at the time of conclusion of the Outer Space Treaty and beforehand related mostly to experiments conducted with artificial earth orbiting satellites. Therefore—short of any evidence to the contrary--the logical contention appears to be that the drafters intended the Outer Space Treaty to apply to such activities 18 . One of the cardinal principles incorporated in the Outer Space Treaty of 1967 is the freedom of exploration and use of outer space
by all states without discrimination of any kind, on a basis of equality and in accordance with international law.19 In view of the fact that the geostationary orbit area is in outer space, the principle of freedom of exploration and use is applicable to it. One limitation on the above provision is that the exploration and use must be carried out for the "benefit and in the interests" of all countries irrespective of their degree of economic or scientific development. 20 This so-called 'common interests' provision, however, has not been regarded as requiring states to share the benefits in any specific manner but rather as an expression of 21 desire that the activities should be beneficial in a general sense. Space activities pertaining to telecommunications, broadcast, meteorology and solar power transmission—generally speaking—may be regarded as beneficial to all countries. Thus an engagement in any such activity would appear to satisfy the requirement of the 'common interests' clause. What has been frequently overlooked, however, possibly because of its self-evident nature is that the "benefit and interests" of the country conducting the exploration and use must also be taken into account, otherwise the exploration and use would not benefit "all" countries. The general scope and applicability of the 'common interests' provision has been analyzed in detail by this writer in 1971 and for purposes of brevity only the following few remarks will be quoted: [T]he exploration and use must be in the "interests" of all countries. The plural term "interests" seems to indicate that more may be involved than just the vague, general "interest" of all countries. In a sense the plural phrase may perhaps be regarded as a victory for
the less developed countries which entertained strong hopes of receiving benefits from man's exploration and use of outer space. What is or is not to the benefit and in the interests of all countries may not always lend itself to an easy determination. Something which is thought to be of benefit to a country on the basis of available information and criteria today may be regarded on the basis of new information and criteria detrimental tomorrow. Also, who is going to determine whether or not a particular exploration and use is in a given case for the benefit of all nations? Since there is no provision in the Treaty for the settlement of disputes, it is likely that each state — short of an amicable disposition of the issue — would insist on its own interpretation... Whether or not only the "exploration and use" must be beneficial to all countries or also the "results", that is, the benefits derived from such exploration and use, is a further very important question... Assuming then for a moment that the "results" of exploration and use were meant, the question arises whether or not "all" such results or benefits were intended and, if so, must all such results be "shared" in order to constitute a benefit to all countries?... ...Thus it would appear that appropriate international agreements would have to be concluded before equal enjoyment of benefits could be regarded as more than a broad statement of general policy.22 The foregoing observations support the proposition that the so-called 'common interests' clause incorporated in Art. I (1) of the Outer Space Treaty is not self-executing but rather a kind of imperfect legislation in that it expresses an aspiration couched in very general terms which could not be specifically implemented without further elaborations and guidelines particularly those relating to the determination of the degree and nature of the sharing and the kinds of benefits that are to accrue. However, the development of internationally acceptable guidelines governing the use of geosta23 tionary orbit would create a more favorable environment for the SPS.
Insofar as the ban on national appropriation incorporated in Article II of the Outer Space Treaty is concerned, it would appear that the placing of a satellite in geostationary orbit would not constitute national appropriation. From the beginnings of the space age the principle 'first come, first served* was followed and the Outer Space Treaty did not place a limitation on this with respect to free space, and state practice to date appears to have confirmed it. As correctly observed by Professor Aldo Armando Cocca, Argentina's representative before the U.N. Committee on the Peaceful Uses of Outer Space (UNCOPUOS): "though everybody has a right to place a space object in orbit, the second in time is to respect the 24 route chosen by the first." He called this rule similar to the 25 principle of "droit de route" in Argentine law. While the keeping of a GEOSAT in orbit for a period of 30 years may be argued to constitute national appropriation—since 30 years may satisfy the requirement that to constitute appropriation the act must be done with a "sense of permanence" 26 — in actuality it would not if geostationary orbit is regarded as a natural resource as characterized by the 1973 International Telecommunications Convention 27 and asserted by the equatorial countries. The reason is that there is authority to support the view that the ban does not relate to natural resources.28 This position also appears to have been shared by the Legal Subcommittee of UNCOPUOS, at least insofar as natural 29 resources of the moon and other celestial bodies were concerned.
3.1.3 The 'Bogota Declaration1 and Arguments Pro and Con It was in October 1975 during the 30th session of the U.N. General Assembly that Colombia first claimed a segment of the geo- 30 stationary orbit above its national territory. The claim was predicated on the argument that the geostationary orbit was not included in the conception of outer space alluded to in the Outer Space Treaty of 1967. This position was reiterated by Colombia during the next session of the General Assembly in 1976 and similar 31 positions were taken by Ecuador and Panama. 32 In November 1976, eight equatorial countries (Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire) met in Bogota to hammer out a unified position in relation to the geostationary orbit. Their conference ended on December 3, 1976, with what is known as 33 the 'Bogota Declaration' in which they set forth their basic posi- tion on the legal status of the geostationary orbit. In order to understand fully the position of the equatorial countries with respect to the geostationary orbit, it seems appropriate to review briefly the basic arguments set forth in the Declaration as well as subsequent statements both pro and con. 3.1.3.1 The 'Bogota Declaration' The basic claim of the Bogota Declaration reduced to its bare essentials is that segments of the geostationary orbit (a natural resource) which lie above their territories are an "integral part" of the territory over which the equatorial countries exercise 34 complete and exclusive sovereignty. This claim is accompanied
by the statement that the devices to be placed permanently on the segment of a geostationary orbit of an equatorial state require "previous and express authorization on the part of the concerned 35 state" and an additional assertion that the equatorial states do not condone existing satellites or the position they occupy on their segments of the geostationary orbit nor does the existence of said satellites confer any rights of placement of satellites or use of the segment unless expressly authorized by the state exer- • 4 cising sovereignty over the segment. 36 The only clarification that the Declaration makes with respect to foregoing demand is that the equatorial states do not object to the free orbital transit of satellites approved and authorized by the International Telecommunication Convention when these satellites pass through their space territory in their gravitational flight 37 outside their geostationary orbit and that the segments of the orbit corresponding to the open sea beyond national jurisdiction 38 constitute the 'common heritage of mankind'. 3.1.3.2 Arguments Pro and Con A sampling of some of the arguments advanced in the Declaration reveals that they have been based on such considerations as: The geostationary orbit is a physical fact arising from the nature of our planet because it depends exclusively on its relation to gravitational phenomena caused by the Earth;3$ Under the current rules of the International Telecommunication Union, geostationary orbit was a limited natural resource over which the equatorial countries exercised permanent sovereignty in line with U.N. resolutions;^ There is no satisfactory definition of outer space to support the argument that the geostationary orbit is included in outer space;41
The ban on national appropriation is not applicable in view of the lack of definition of outer space; Technological partition of the orbit is inappropriate;^ The geostationary orbit is not covered by the Outer Space Treaty; The Outer Space Treaty can not be a "final answer"; To the preceding considerations certain additional points were added in the course of subsequent U.N. discussions in 1977 and 1978. Some of them were expressed in such statements as: The prevailing uncertainty on the matter of outer space was illustrated by the variety of criteria suggested for its definition;4$ Until an international definition of outer space had been arrived at the provisions of domestic law would apply to demarcate space;47 There is no right of succession in regard to satellites; Exercise of sovereign rights is in keeping with positive international law; Countries that had not ratified the treaty were not bound by it;50 Orbit was unique because it was the only point at which it was economically feasible to maintain a satellite in a stationary position and because it was the only feasible position for solar energy platforms; Geostationary orbit was a limited natural resource because of its possible saturation with solar energy platforms and telecommunication frequencies. That the legal and scientific considerations which were invoked in support of the claim of equatorial countries had no valid basis became apparent from their overwhelming rejection by other countries represented before UNCOPUOS including, for instance, Australia, Belgium, Czechoslovakia, France,
the German Democratic Republic, Iran, Italy, Mexico, Soviet Union, United Kingdom, and the United States. Some of the counter arguments were reflected in such statements as: The concept of natural resources had never been defined in General Assembly resolutions; Art. 33 of the International Telecommunication Convention had described the parameters of geostationary orbit from a purely technical standpoint and had never defined it in legal terms; the only stipulation of a legal nature in those regulations was that allocation of an orbital position could not confer permanent priority or possession;$D Geostationary satellites were not permanently located at the same point on the equatorial plane No state ever protested against the ever-growing outer space activities carried out for the progress of civilization and the benefit of mankind;67 The use of geostationary orbit was subject to the legal regime of the Outer Space Treaty; There was no parallel between the jurisdiction of the coastal states extending over the continental shelf and the extension of national sovereignty to positions on the geostationary orbit;69 A claim of sovereignty was valid only if it was based on effective occupation; There was no legal or scientific basis for claiming national jurisdiction over segments of the geostationary orbit. The interest of mankind could be served only by free and equitable use, and exploitation of outer space by all countries claiming national sovereignty over the geostationary orbit did not serve these interests. All countries would lose if a monopoly over the geostationary orbit was established; The geostationary orbit was a construction of the mathematical and scientific mind and belonged to all mankind; The view that geostationary orbit was a natural resource and subject to the sovereignty of the equatorial states was absurd requiring no further comment.
While the strictly legal and technical arguments of the equatorial countries did not appear convincing, it is instructive to look at their underlying motivations which prompted the equatorial countries to put forth their claims. Such motivations reflected economic aspirations couched in terms of fundamental justice, equity and fairness as revealed by a brief sampling of the following statements: ITU solutions are impracticable and unfair and would considerably increase the exploitation costs of the geostationary orbit especially for developing countries which do not have equal technological and financial resources as compared to industrialized countries who enjoy an apparent monopoly in the exploitation and use of geostationary orbit; Both the geostationary orbit and the frequencies have been used in a way that does not allow equitable access of the developing countries that do not have the technical and financial means that the great powers have; The ultimate justification for the Declaration is directed "towards rendering tangible benefits to their respective people and for the universal community"; The application of the 1967 Treaty did not reflect the spirit of its drafters; Outer space had been beneficial only to a few countries instead of to all countries; A more just international order could not be achieved if the use of outer space was left only to a few countries; The issue of the geostationary orbit should be resolved in accordance with the aims of the New International Economic Order; The geostationary orbit must be used in priority for the benefit of the developing countries in order to help to narrow the gap between the developing countries and the industrialized countries on an equitable basis
In order to attain their economic aspirations on the basis of justice, equity and fairness the equatorial countries wanted to renegotiate the Outer Space Treaty, more specifically, First, to negotiate a definition or delineation of outer space which would take into account the interests of the equatorial countries; Second, to negotiate a legal regime to govern the use of the geostationary orbit taking into account the genuine interest of the international community and the concerns of the equatorial countries; Third, to negotiate regional and subregional agreements with other Latin American states for the joint use of the geostationary orbit; Finally, to create a new Outer Space Authority under the auspices of the United Nations. The reaction to what appears to have motivated the claim of equatorial countries found expression in a number of statements, including that of Brazil, an observer at Bogota. Among them are: Understood the anxiety about the use of geostationary orbit and supported the proposal to study the scientific and technical aspects in order to elaborate an international legal regime on geostationary orbit (Australia); Concerns of the equatorial countries were not absurd, particularly since they were countries seeking to achieve development. They are worthy of note and should be examined carefully in the context of the 1967 Treaty (Belgium); Was in favor of the formulation of a specific legal regime taking into account the unique nature and risks of saturation of the geostationary orbit safeguarding the legitimate interests of all states particularly those over whose territories the orbit passed (Brazil)
It might be necessary to regulate the orbit within the framework of the Outer Space Treaty (France), The interests of other states must be taken into account in a spirit of good faith and cooperation^ (Germ. Dem. Rep.); Not opposed to the discussion of the issue of geostationary orbit (Iran); It was necessary to develop a legal regime in which "the special interests of the equatorial states" would be taken into account (Mexico); All countries should have equitable access to the geosta tionary orbit (Nigeria); Prepared to recommend, for consideration of the General Assembly, a draft resolution concerning the legal aspects of geostationary orbit, if no consensus of these questions could be reached in the Legal Subcommittee (Soviet Union); The best solution was to have all states equitably share the benefits of the geostationary orbit (U.K.); 3.1.4 Conclusion From the preceding review of outer space related instruments and deliberations it appears that the claims of the equatorial countries to segments of the geostationary orbit are legally and scientifically untenable. At the same time, it also appears that in the Legal Subcommittee of UNCOPUOS there has been a fairly substantial support for equity and fairness which would favor or at least leave the door open for consideration, within the framework of the Outer Space Treaty, of the development of legal principles to govern the use of geostationary orbit. The development of such principles is likely
to become a major issue before UNCOPUOS but the United States appears to have overwhelming support for the view that no part of the geostationary orbit is subject to claims of sovereignty and that principles governing the use of geostationary orbit must be worked out within the framework of the Outer Space Treaty. 3.1.5 ITU Instruments The beginnings of the space age did not develop according to an a priori plan but as a result of an evolutionary process. Countries which placed satellites in orbit and beyond did not ask for any permission and there were no series of official protests. The vastness of outer space appeared to offer unlimited opportunities of exploration and use for any country that wished and could undertake them. There was only one limitation — largely by reason of common sense — the 'first come, first served' rule which became a firmly embedded concomitant of the principle of freedom of exploration and use of outer space. Under this rule the late comer would not be entitled to priority with respect to activities of an earlier user. A glance at the history of the International Telecommunication Union reveals that its patterns of practices were based on the recognition of the same rule. However, the limited nature of availability of the electromagnetic spectrum and the geostationary orbit for beneficial use coupled with increasing opportunities and demands for their uses has led to efforts by developing nations to alter the 'first come, first served' rule which in their view favored the technologically advanced countries. The results of their efforts were reflected in a series of resolutions, articles and regulations
adopted by ITU bodies. A brief review of some of the relevant instruments is essential in order to identify problems that are likely to be encountered in negotiating international agreements on geostationary orbit availability. It was during the 1971 World Administrative Radio Conference for Space Telecommunications (WARC-ST) that a resolution was adopted which took into account that all countries had "equal rights in the use of both the radio frequencies allocated to various space radiocommunication services and the geostationary satellite orbit for these services" and that "the radio frequency spectrum and the geostationary satellite orbit" were "limited natural resources" which were to be "most effectively and economically used." In recognition of this, the legally not binding instrument went on to resolve: 1. [T]hat the registration with the ITU of frequency assignments for space radiocommunication services and their use should not provide any permanent priority for any individual country or groups of countries and should not create an obstacle to the establishment of space systems by other countries; 2. [T]hat, accordingly, a country or a group of countries having registered with the ITU frequencies for their space radiocommunication services should take all practicable measures to realize the possibility of the use of new space systems by other countries or groups of countries so desiring. In another resolution the same conference reiterated the importance of making the best use of the geostationary orbit and the Q frequencies assigned to the broadcasting satellite service. Also, the same conference revised the Radio Regulations which have the force of a treaty to provide, in part, for a procedure to coordinate use of the geostationary orbit in the following manner:
An administration (or one acting on behalf of a group of named administrations) which intends to establish a satellite system shall, prior to the coordination procedure send to the International Frequency Registration Board not earlier than five years before the date of bringing into service each satellite network of the planned system, the information listed.... Before an administration notifies to the Board or brings into use any frequency assignment to a space station on a geostationary satellite or to an earth station that is to communicate with a space station on a geostationary satellite, it shall effect coordination of the assignment with any other administration whose assignment in the same band for a space station on a geostationary satellite or for an earth station that communicates with a space station on a geostationary satellite is recorded in the Master Register, or has been coordinated or is being coordinated under the provisions of this paragraph. For this purpose, the administration requesting coordination shall send to any other such administration the information listed.... The WARC-ST resolutions were followed by binding provisions in the 1973 International Telecommunication Convention (ITC) stipulating rational use of the radio spectrum and geostationary orbit (spectrum/orbit) and the avoidance of harmful interference. The provisions state in part that: In using frequency bands for space radio services Members shall bear in mind that radio frequencies and the geostationary satellite are limited natural resources so that countries or groups of countries may have equitable access to both in conformity with the provisions of Radio Regulations according to their needs and the technical facilities at their disposal. All stations, whatever their purpose, must be established and operated in such manner as not to cause harmful interference of other Members, or of recognized private operating agencies, or other duly authorized operating agencies which carry on radio services, and which operate in accordance with the provisions of the Radio Regulations. Another ITC provision specifically extended the responsibilities of the International Frequency Registration Board (IFRB), an ITU organ, in order to effect "an orderly recording of the positions
assigned by countries to geostationary satellites", "to furnish advice to Members...with a view to the equitable, effective and economical use of the geostationary satellite orbit" and "to perform any additional duties" relating to "the utilization of the geostationary satellite orbit". The importance of efficient use of the spectrum/orbit and the principle of equal rights of all countries found further expression in the Preamble of the Final Acts of the 1977 World Administrative Radio Conference for the Planning of the Broadcasting-Satellite Service in Frequency Bands 11.7-12.2 GHz (in Regions 2 and 3) and 11.7-12.5 GHz (in Region 1) (WARC-BS). In it, the signatories, inter alia, stated that they bear in mind: [T]he importance of making the best possible use of the radio-frequency spectrum and the geostationary-satellite orbit as well as the need for an orderly development of the services to which these bands are allocated; and take into account: [The equaal rights of all countries, large and small, even those countries which are not represented at the Conference. The 1977 WARC-BS adopted a plan (to go into effect on January 1, 1979) designating frequency assignments in the aforementioned bands and positions in the geostationary orbit for regions 1 (Europe, Africa, the USSR and Mongolia) and 3 (Asia and the Pacific). Postponement of the immediate adoption of an orbital position and frequency channel plan for Region 2 (the Americas) was in a sense a victory for the evolutionary approach advocated by the United States permitting future technological advances to be taken into account. To achieve this the acceptance of two compromises was necessary: An
arc segmentation approach under which alternating segments of the geostationary arc were allocated on a primary basis to the broad- casting-satellite service and the fixed-satellite service; and the holding, not later than in 1982, of a Regional Administrative Radio Conference to draw up a detailed plan for the broadcasting- satellite and fixed services in Region 2. The equatorial countries -- with the exception of Indonesia-- made reservations to the effect that they do not accept and are not bound by the resolutions, agreements and decisions of the conference regarding the location of geostationary satellites on the segment of the orbit over which they exercise sovereign rights and that the positioning of such satellites will require their prior authori- zation. Indonesia made a separate reservation in which it in- voled in part the Bogota Declaration. The United States joined with a number of countries rejecting the claims of the equatorial countries and declaring that the decisions of the conference to assign frequencies and orbital positions in the geostationary orbit were fully in accordance with the 1973 ITC by which the conference was bound. 3.1.5.1. Conclusions The preceding review of ITU instruments and related discussions appears to indicate that the 'first come, first served' principle with respect to the use of the geostationary orbit has basically remained unaltered from a strictly legal point of view. While states, in general, abide by ITU resolutions, they are not legally bound by them. However, to the extent that such resolutions express
a substantial consensus by a large number of states, they should be considered as relevant factors in revealing trends and indicating problems that may be encountered with respect to reaching international agreements on geostationary orbit availability. Additionally, provisions incorporated in instruments having the force of a treaty speak clearly of efficient and economic use and equitable access of countries and groups of countries to the geostationary orbit. This, in turn, implies that there is no legal right to the permanent utilization of a particular orbital position, even less to a claim of sovereignty or ownership. The views reflected in a number of international instruments appear to bring forcefully to the fore the key issue that policy makers will increasingly have to face as science and technology provides more practical uses of the orbit. This is how to translate—what the ITU calls—the "efficient and economic use" and "equitable access" into more specific legal and technical principles and rules relating to the geostationary orbit for—what the Outer Space Treaty calls—the "benefit and interests" of all countries. The legal aspects of this issue are likely to be faced by U.S. representatives next year before UNCOPUOS and its Legal Subcommittee whereas its technical aspects will come before its Scientific Subconmittee and the 1979 WARC, the agenda of which includes a review and, if necessary, revision of the Radio Regulations, including procedures for coordinating the use of geostationary orbit. Some of the relevant policy options and strategies will be discussed in Section 4.
3.2 Microwave Frequency Allocation Satellites in geostationary orbit would use microwave beams for transmission of solar energy to earth. The nature of microwave transmission does not differ basically from other transmission except for density, but the purpose does differ, in one case being telecommunications, in the other, large-scale power transmission. While several frequencies have been considered in connection with the SPS -- because of what appears to be its advantages over other frequencies -- 2.45 GHz has been proposed for possible use. In order to determine the problems which may be encountered in reaching international agreements on microwave power frequency allocation, it appears essential to examine the existing international institutional framework with particular reference to frequency regulation within the radio spectrum. 3.2.1 ITU's Role Because of limitations on the availability of the radio spectrum for beneficial uses, an international organization, the International Telecommunication Union (ITU), has been entrusted with the responsibility of working out rules and procedures with a view toward maximizing the spectrum's efficient utilization and preventing any harmful interference. ITU's recent involvement during the 1977 WARC-BS in the preparation of a plan for allocating geostationary orbital slots and frequencies for broadcast-satellite services has brought to
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