Satellite Power System (SPS) International Agreements HCP/ R-4024-08 October 1978 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
Available from: National Technical Information Service (NTIS) U.S. Department of Commerce 5285 Port Royal Road Springfield, Virginia 22161
HCP/R-4024-08 Dist. Category UC-11,41,60,63, 63a,b,c,e,64,66e,95f,97c Satellite Power System (SPS) International Agreements October 1978 Prepared by: Carl Q. Christol Pacific Palisades, California 90272 for the 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
The author acknowledges the following people for their review of the draft of this White Paper: Mr. Spencer Beresford International Technical Services, Inc. Suite 805 2001 S. Jefferson Davis Highway Ariington, VA 22202 Mrs. Eilene Galloway Former Member of Congressional Research Service Library of Congress 4612 29th Place, N.W. Washington, D.C. 20008 Professor Hamilton DeSaussure University of Akron School of Law Akron, Ohio 44325
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EXECUTIVE SUMMARY This White Paper examines present and future plans for a SPS in a political-legal context. Since a SPS will have international ramifications, the analysis focuses on international political and legal matters. A number of existing international organizations, having both scientific and technical competence and a political-legal orientation, are involved in the governance of space objects orbiting at geostationary heights. The public international institutions include the United Nations, and in particular, the Committee on the Peaceful Uses of Outer Space, and the International Telecommunication Union. A private international institution with a scientific focus is the Committee on Space Research (COSPAR) of the International Council of Scientific Unions (ICSU). The United Nations has been instrumental in the preparation of two international agreements that bear directly on the uses of outer space, the Moon and celestial bodies (the space environment) by a SPS. These are the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies and the 1972 Convention on International Liability for Damage Caused by Space Objects. The United States is a party to both agreements, and they have entered into force. As a chief proponent of these two major international legal instruments, the United States has sought to assure the full and free use of the space environment for all peaceful purposes. These agreements have been premised on the res communis international legal principle. Thus, the space environment is open for the use of all who are able to use it. It cannot become an area subject to the sovereignty of a nationstate. The Liability Convention is intended to prevent against misuse of the space environment. It provides that monetary damages will compensate for misuse. Since the 1967 Treaty preserves the right to the free use of the space environment, States and others having the capacity to do so are entitled to make use of geostationary orbital positions. However, a formal definition/delimitation of sovereign airspace and non-sovereign space environment does not exist. Consequently, in 1976 eight equatorial States issued the Bogota Declaration. In this they asserted that the spatial area superjacent to their territorial areas was airspace and subject to their sovereignty. The space-resource States and others have rejected this claim. The ITU, pursuant to the 1973 Telecommunication Convention and Final Protocol, continues to make allocations of radio frequencies. There has been a trend at the ITU to link the radio spectrum with the geostationary orbital position. There is no question that the ITU is charged with making microwave frequency allocations. However, such allocations depend upon the national assignments of such frequencies which are recorded with the ITU. The ITU continues to be responsible for preventing harmful interferences by competing broadcasts. It remains to be seen whether the UN, the ITU, or a new international entity will be given the principal responsibility for protecting national and international wants and needs for the efficient, economic, and equitable use of a SPS. International law has not established international microwave exposure standards. Nonetheless, the Liability Convention has established international tort law rules. If microwave transmissions of energy from geostationary levels were to cause harm to plants, animals, and tangible items, the Convention would cover the subject. Suggestions have been made for a new International Conference on Space Law. If and when such a conference is held, it is probable that scientific, technological, political, and legal aspects of a SPS will be considered.
TABLE OF CONTENTS Pa^e EXECUTIVE SUMMARY .................................................. v TABLE OF CONTENTS.................................................. vii Chapter 1. INTRODUCTION .............................................. 1 1.1 International Agreements and a SPS............... 1 1.2 Role of Law and International Organizations ... 1 1.3 National Perspectives in International Organizations ........................... 3 1.4 Composition of the Committee on the Peaceful Uses of Outer Space..................... 4 1.5 Additional International Forums ................... 5 1.6 The Possibility of Unilateral SPS Activity .... 7 1.7 Policy as the Product of Legal and Scientific Forces .................................... 8 2. THE ITU AND THE ALLOCATION OF THE RADIO FREQUENCY SPECTRUM.............................................. 11 2.1 Essential Powers of the ITU...................... 2.2 Association by ITU of Radio Frequencies and Orbital Positions .......................... 13 2.3 Harmful Interference with Natural Resources: Spectrum and Orbit............................... 15 2.4 The Governmental Process of the ITU.............. 17 2.5 The Issue of Priority of Rights to Radio Frequencies............................. 23 2.6 The 1959 ITU Radio Regulations and Space Activities ................................ 2.7 The 1963 ITU Radio Regulations and Space Activities................................ 45 2.8 The 1971 ITU Radio Regulations and Space Activities, WARC ST..................... 47 2.9 The 1977 ITU Radio Regulations and Space Activities, WARC BS..................... 48 2.10 Assessment of Role of ITU in SPS Activities ... $2
3. INTERNATIONAL SPACE LAW AND THE USE OF NATURAL RESOURCES: ORBITAL POSITIONS ........................ 73 3.1 The Orbital Position as a World Natural Resource . 73 3.2 The Debate over the Number of Orbital Positions . 73 3.3 The Application of International Space Law.to Orbital Use............................. 82 3.4 Preferential Claims to the Orbit Resource .... 89 3.5 Sovereign Claims to the Orbit Resource: The Bogota Declaration of December 3, 1976 . 94 3.6 Consideration of the Bogota Declaration by COPUOS 3.7 Present Use of the Geostationary Orbital Position is Lawful....................... 106 4. INTERNATIONAL SPACE LAW AND THE USE OF NATURAL RESOURCES: SOLAR ENERGY......................................... 109 4.1 Solar Energy as a Source of Power............... 109 4.2 Legalization of Use of Moon Resources by SPS ... Hl 4.3 The 1967 Principles Treaty and High Altitude Solar Energy............................. 114 4.4 Present Interest of COPUOS in Legal Use of Solar Energy............................. 121 5. THE SPS AND STANDARDS RELATING TO EXPOSURE TO MICROWAVES.................. 123 5.1 Transmission to Earth by Microwave of Solar Energy.................................... 123 5.2 Protection Against Possible Harms from Microwaves 124 5.3 Efforts to Establish Protective Standards: Institutions ............................. 128 5.4 Efforts to Establish Protective Standards: Policies.................................. 129 5.5 The 1967 Principles Treaty and the Duty to Consult 130 6. LIABILITY FOR THE OPERATION OF THE SPS AND ITS COMPONENT PARTS ....................................... 135 6.1 Genesis of Liability Concepts in Space Law .... 135 6.2 Liability Provisions in the 1967 Treaty: Article 7................................ 141 6.3 Relationship Between Articles 7 and 9........... 142 6.4 The Liability for Damages Convention of 1972 . . . 144 6.4.1 Non-Violation by Placing SPS into Geostationary Orbit .......... 147 6.4.2 Incurrence of Liability from Microwave Radiation..................... 152 6.4.3 Harmful Interference and the Matter of Damages . . .............. 160 6.5 International Law Applies to Harms Caused to SPS . 164
Page 7. PROSPECTS FOR A NEW INTERNATIONAL CONFERENCE ON SPACE ENVIRONMENT LAW....................................... 167 7.1 Proposals for a Space Law Conference............. 167 7.2 Different Assessments Regarding the Worth of a Conference......................... 168 7.3 Factors Involved in the Convening of a Conference 171 7.3.1 Negotiation of the 1967 Principles Treaty: Lessons ............ 173 7.3.2 Difficulties in the Negotiations of Agreements: Other Illustrations . . . 175 7.4 Characteristics of a Possible Nev/ International Space Organization...................... 180 7.5 A Final Comment on Conference Strategies ......... 188 8. CONCLUSION.............................................. 193 9. RECOMMENDATIONS FOR FURTHER STUDY ........................... 201 BIBLIOGRAPHY ......................................................... 215 APPENDIXES A. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, January 27, 1967 ................................... 231 B. Bogota Declaration, December 3, 1976 ................. 243 C. Convention on International Liability for Damage Caused by Space Objects, March 29, 1972 ......... 251 D. Table of States Bound by Relevant International Agreements.......................................... 267 E. List of Nations Which are Signatory to All Three Treaties (1967 Principles, 1972 Liability, 1973 ITU) . 273 F. Nations by Area Which are Signatory to Three Treaties (1967 Principles, 1972 Liability, 1973 ITU).... 275 G. Equatorial Nations and Four Treaties (1967 Principles, 1971 WARC, 1972 Liability, and 1973 ITU)........ 277 H. Time Frame Chart for Negotiation of Treaties ......... 279 I. Time Frame Chart for Establishment of International Organizations ..................................... 281 J. Time Frame Chart Consolidating Appendixes H and I . . 283 K. Subjects for Further Study ............................ 285
Chapter One INTRODUCTION 1.1 International Agreements and a SPS The needs of an energy-hungry world have suggested the use of a Satellite Power System (SPS) to bring supplies of energy from outer space to Earth-based consumers/ Since solar energy at the distance from the Earth at which geostationary space objects can conveniently orbit is regarded as a world natural resource, it is to be expected that the gathering, transmission, and utilization of the resource will require international agreement. The present inquiry will focus on the possibility of obtaining international agreements having legal significance relating to: (1) the availability to a nation-state of geostationary orbital positions (slots) for its space objects; (2) allocations and effective use of microwave frequencies; (3) microwave exposure standards. 1.2 Role of Law and International Organizations My assessment will take into account the current state of international law on the foregoing matters. Of necessity it will have to examine the political context in which this law has developed. This will require an analysis of the role of the international organizations that It has been estimated that by 2000 the demand for electricity in the United States will be almost three times higher than it is now.
have been engaged in the development of legal principles, rules, and standards for these subjects. It will also require an assessment of the possible future roles of such institutions. Such institutions will continue to be international in scope. Further, they will continue to be influenced by the lively forces of science and technology and by the human values that constantly give direction to political-legal judgments. Pragmatic considerations will play a substantial role in what appears below. International organizations will be treated as having the principal responsibility for obtaining viable legal principles, rules, and standards. It will be their function, taking into account the needs and wants of sovereign nation-states, to obtain common denominators. Different techniques are available to obtain such common agreement. For example, with the United Nations General Assembly Committee on the Peaceful Uses of Outer Space (COPUOS) operating on the basis of consensus, its final agreements will have to command themselves to the strong support of the States composing the world community. Having arrived at their agreements these States will then be critically charged with securing the day-to-day implementation of the agreements. Such national implementation will not be possible unless all affected States, presumably a very large number of the community, are persuaded that the international agreement will serve and satisfy their respective mutual interests. The keystone to the implementation and enforcement of international legal and political promises is simply the realization that an orderly and harmonious implementation of agreed commitments will serve the general needs of all.
This time-tested prescription works best when it is acknowledged that over time States perceive that their needs and wants do change. As science and technology open new vistas the appetites of beneficiaries or potential beneficiaries take on new dimensions. Thus, the product of international law and of international organizations, in order to meet existing and future world-community expectations, must rely upon the firm facts of science and technology. 1.3 National Perspectives in International Organizations As noted, the present world-community expectation is that the outer space environment (outer space, the Moon, and celestial bodies) is a world resource. Following World War II a very large number of new States entered the world community. Many of them are identified as less- developed-countries (LDCs), and their assertiveness has been noticed in many of the world's international organizations. Like all States they possess the condition of sovereignty, i.e., legal equality. The newer States have been identified with efforts to improve their economic well-being. They have urged the need to establish a New International Economic Order. They have sought preferential benefits in ocean areas and have helped to evolve the concepts of the Common Heritage of Mankind and the Province of Mankind. The newer States have mobilized voting and consultative blocs in international organizations in order to overcome their separate political weaknesses. Although their preponderant voting power in the United Nations has resulted in the expression "paper majorities," nonetheless, it cannot be denied that in their consolidated positions they are influencing the substance of international agreements.
In the context of the present analysis a small bloc of States situated at the Equator has put forward claims to special rights in the area of the space environment in which geostationary space objects can conveniently orbit. 1.4 Composition of the Committee on the Peaceful Uses of Outer Space In the past the major space States, particularly the United States and the Soviet Union, have very substantially influenced--either by their action or their inaction--the development of international space law at the United Nations. In 1958 the General Assembly established an Ad Hoc Committee on the Peaceful Uses of Outer Space consisting of 18 members of which three were within the Soviet bloc, namely, the Soviet Union, Czechoslovakia, and Poland. The other members of the committee were Argentina, Australia, Belgium, Brazil, Canada, France, India, Iran, Italy, Japan, Mexico, Poland, Sweden, the United Arab Republic, the United Kingdom, and the United States. The Soviets considered the committee to 2 be "one-sided and heavily weighted in favor of the Western powers." Consequently, the three socialist States refused to participate in the meetings of the committee. Joining the boycott were India and the UAR who considered that the committee could not usefully serve its purposes in the absence of the Soviet Union. Through General Assembly Resolution 1472 (XIV) of December 12, 1959 COPUOS was established. To the Ad Hoc committee members were added Albania, Bulgaria, Hungary, and Romania of the socialist bloc and also Austria and Lebanon. In this manner the 18-member Ad Hoc committee was n "Unanimity on Outer Space," 6 United Nations Review 18 (February 1960).
enlarged in COPUOS to 24 members. The socialist bloc obtained 7 out of the 24 members. The committee was again enlarged in 1961 by adding Chad, Mongolia, 3 Morocco, and Sierra Leone. The 28 became 37 on December 18, 1973 with the adoption of General Assembly Resolution 3182 (XXVIII). Added as new members by appointment of the President of the General Assembly were Chile, the German Democratic Republic, the Federal Republic of Germany, Indonesia, Kenya, Nigeria, Pakistan, Sudan, and Venezuela. Then, on December 20, 1977 the 37 became 47 with the adoption of General Assembly Resolution 32/196B. New members were Benin, Colombia, Ecuador, Iraq, Netherlands, Niger, Philippines, Turkey, United Republic of Cameroon, and Yugoslavia. Two facts stand out in the augmentations of membership. First, the space resource States were joined by representatives of the LDCs. Second, the equatorial States received strong representation. With the admission of Nauru to the United Nations in 1976 there were 9 equatorial States as members. Of these five, namely Brazil, Colombia, Ecuador, Indonesia, and Kenya are committee members. Congo, Nauru, Uganda, and Zaire have not been appointed to the committee. Since geostationary space objects find an orbital position above the Equator to be congenial the named States have a particular interest in this subject. 1.5 Additional International Forums While it may not be possible to forecast with finality the respective roles of States having the capacity to embark on major space programs (space-resource States) and all the others, yet it is feasible to predict 3 General Assembly Resolution 1721 E (XVI), 20 December 1961.
that they will interact on behalf of their interests in all available international institutions. If the SPS is to emerge as a reality at the end of the present century or in the next. States will have an extended period in which to work out their legal and institutional needs. This is not to say, however, that the legal and institutional issues that are under investigation in this study will be put off to future dates. In fact, positions by States have already been identified on subjects within the scope of this present analysis. Thus, at both the United Nations with its original concern for the definition and/or the delimitation of outer space, with the emphasis on the fixing of a boundary between airspace and outer space, and at the International Telecommunication Union (ITU) with its initial function of allocating radio frequencies so that broadcasters might avoid harmful interferences and its more recent involvement in the allocation of geostationary orbital positions for space objects, there have been contributions to the development of legal regimes. It is even possible that there will be conflicting claims on the part of these two institutions as to the extent of their respective interests and jurisdictions. The question of determining where outer space begins was considered by the Ad Hoc Committee on the Peaceful Uses of Outer Space in 1959. It was not until 1967 that this subject was placed on the agenda of the legal subcommittee of COPUOS. Owing to lack of time and more pressing matters it was not considered in any detail until 1977. At the April 1977 session of the subcommittee its chairman redesigned the Committee's focus by entitling the agenda item "Matters relating to the definition and/or delimitation of outer space and outer space activities," U.N. Doc. A/AC.105/196, pp. 1 and 9 (11 April 1977). At the April 1978 meeting of the legal subcommittee the agenda item was again modified. This time it was "Questions relating to the definition and/or delimitation of outer space and outer space activities, also bearing in mind questions relating to the geostationary orbit," U.N. Doc. A/AC.105/218, pp. 3, 9-10 (13 April 1978). The changes in the agenda item designations suggest an enlarged interest within the UN in new space activities, including presumably those associated with the Space Shuttle, and on geostationary orbits, including presumably their use in space telecommunications.
1.6 The Possibility of Unilateral SPS Activity As States contemplate, both at the present, near future, and more distant future, their respective needs and wants in the solar energy field, they may have to identify the forum or forums in which decisions are to be taken. A continuing assessment might take into account not only the references of SPS issues to international institutions. It is also possible to contemplate that one or more of the space resource States would wish to embark on an essentially unilateral SPS undertaking. While such a position would be unpopular internationally, it might--at least at the outset-produce a position that would be advantageous later in political bargaining. Or, rather than arriving at SPS policies through a universal international body, such as the UN or the ITU, it would be possible for like-minded and essentially equal space resource States to form agreements serving their own narrowly defined international interests. Within this last mentioned classification, it would be possible to consider regional bodies insofar as radio frequencies and orbital positions for geostationary space objects do possess important geographical characteristics. Against these short-term considerations are provisions contained in the "Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies." Thus, Article 1, paragraph 1, provides "The exploration and use of outer space, including the Moon and other celestial bodies, shall 18 UST 2410, TIAS 6347. It will be referred to hereafter as "Principles Treaty." The agreement entered into force for the United States on October 10, 1967. See Appendix A.
be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind." When this paragraph was analyzed by the U.S. Senate Committee on Foreign Relations as it engaged in its constitutional function of giving its advice and consent to the President, the Committee formally stated that "nothing in Article 1, paragraph 1, of the Treaty diminishes or alters the right of the United States to determine how it shares the benefits and results of its space activities. 1.7 Policy as the Product of Legal and Scientific Forces Admittedly, the science and technology of the radio spectrum and of the effectively operating geostationary orbit are complex. Undoubtedly, many of the aspects of an operating SPS will present challenges of enormous magnitude. The processes of international law and its institutions have a complexity of their own, admittedly different from the complexity of the scientific and technological world, but nonetheless in their way such legal and political processes are complex. The purpose here is to effect a meaningful joinder of these two processes so that the SPS and its solar energy will serve the needs of mankind. As stated, solar energy is a natural resource. The radio spectrum is a natural resource. The slot occupied by a geostationary satellite in orbit is a natural resource. As natural resources of the space environment pursuant to the Principles Treaty they are to be treated as the province of all mankind. And, as provided in Article 33 of the 1973 ITU Convention the parties are obliged to bear in mind in the employment of "Treaty on Outer Space, Report," 90th Cong. 1st Sess., Executive Rept. No. 8, p. 4 (April 18, 1967).
frequency bands for space radio services that "radio frequencies and the geostationary satellite orbit are limited natural resources, that they must be used efficiently and economically so that countries or groups of countries may have equitable access to both in conformity with the provisions of the Radio Regulations according to their needs and the technical facilities at their disposal." Thus, to the province of mankind concept has been added the further requirement that this resource must be used equitably, efficiently, and economically. From the perspective of international law and organization the question must be asked and answered: Who may use such resources? Under what conditions may such resources be used? The answers will be found in existing legal and political constraints. And, as the law is a living institution in a living society, the answers will also be found in future developments. The following constitutes an early effort to provide some of the answers. Throughout the methodology will be to examine relevant facts, often in a most detailed and precise fashion. Conclusions drawn from such facts will then be put forward. TIAS 8572. This agreement entered into force for the United States on April 7, 1976.
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Chapter Two THE ITU AND THE ALLOCATION OF THE RADIO FREQUENCY SPECTRUM 2.1 Essential Powers of the ITU The several International Telecommunication Conventions have given to the ITU powers relating to the allocation of radio frequencies. Thus, the International Telecommunication Convention signed at Montreux on November 12, 1965 provided in Article 4.2. that a purpose of the International Telecommunication Union (ITU) would be to: (a) effect allocation of the radio frequency spectrum and registration of radio frequency assignments in order to avoid harmful interference between radio stations of different countries; and, (b) coordinate efforts to eliminate harmful interference between radio stations of different countries and to improve the use made of the radio frequency spectrum . . . The ITU is now governed by the new Telecommunication Convention and Final Protocol signed at Malaga-Torremolinos on October 25, 1973. Pursuant to the 1973 convention the ITU became critically involved in the use of the geostationary orbit by space objects Article 4 identified in language identical to that appearing above a major purpose of the Union. TIAS 8572. It entered into force for the United States on April 7, 1976. Both conventions must be taken into account in an analysis of telecommunications law and practice. Although the United States is bound by the 1973 Convention to the extent that other States have not accepted it, but are parties to the 1965 Convention, they remain bound under its terms in their relations with the United States.
The 1965 and the 1973 Conventions in identical language made provision for the use of Administrative Conferences by the ITU. The World Administrative Radio Conference is one of such bodies. The agenda of such a conference may allow for the partial revision of preexisting Administrative Regulations, the complete revision of one or more of those Regulations, and "any other question of a worldwide character within the competence of the conference. Following agreement on the management of radio activities the terms in the form of "Radio Regulations" are submitted to participating States for ratification. Upon ratification the agreement has the force of law. The International Frequency Registration Board (IFRB) of the ITU performs important functions. Pursuant to Article 13 of the 1965 Convention and Article 10 of the 1973 Convention the five independent members of the IFRB are to be elected in such a way as to ensure equitable distribution among the regions of the world. Moreover, they are expected to exercise their functions "not as representing their respective countries, or of a region, but as custodians of an international public trust." Since the precise duties of the members of the IFRB are not always accurately presented, it will be helpful to quote the language of the Conventions. Both conventions recite that the "essential duties" of the IFRB shall be: (a) to effect an orderly recording of frequency assignments made by the different countries so as to establish, in accordance with the procedure provided for in the Radio Article 7 of the respective Conventions. Article 13, 1965 Convention; Article 10, 1973 Convention.
Regulations and in accordance with any decision which may be taken by competent conferences of the Union, the date, purpose and technical characteristics of each of these assignments, with a view to ensuring formal international recognition thereof;^ 2.2 Association by ITU of Radio Frequencies and Orbital Positions The duties of the IFRB were enormously enlarged in 1973. Thus, in Article 10.3. it is provided that the Board is: (b) to effect, in the same conditions and for the same purpose, an orderly recording of the positions assigned by countries to geostationary satellites. In establishing this new function for the ITU a direct association was made between frequency assignments and the orbital position or "slot" occupied by a space object having the capacity to make use of radio frequencies or channels. Since 1973, pursuant to Article 33 of the 1973 Convention, the ITU has moved from the essentially ministerial function of registering national assignments of space orbits to the furnishing of advice to members and to the formulation of policy relating "to the equitable, effective and economical use of the geostationary satellite orbit." Despite the making of the above association in the quoted language, the question of whether from an analytical point of view there is a need to join the "recording of frequency assignments" to "positions assigned by countries to geostationary satellites" deserves critical assessment. In referring to the radio spectrum and orbits it has been suggested that the preferred designation is "the nominal orbit/spectrum Article 13.1. of the 1965 Convention; Article 10.3. of the 1973 Convention. 5 °Infra, p. 15.
because it is impossible to consider separately these two concepts. . . . This analysis appears below. In both Conventions the IFRB is obliged (c) to furnish advice to Members with a view to the operation of the maximum practicable number of radio channels in those portions of the spectrum where harmful interference may occur. In paragraph 3.d) of the 1973 Convention the IFRB, as in the 1965 Convention, paragraph 3.c), is obliged, in addition to performing essential duties, also to "perform any additional duties, concerned with the assignment and utilization of frequencies." To authorize the IFRB a new involvement in geostationary satellite orbits, the following language has been added to the quoted phrase from Article 10, namely, "and with the utilization of the geostationary satellite orbit, in accordance with the procedures provided for in the Radio Regulations." However, such additional duties of the IFRB, both under the 1965 and the 1973 Convention, are to be undertaken only "as prescribed by a competent conference of the Union, or by the Administrative Council with the consent of a majority of the Members of the Union, in preparation for or in pursuance of the decisions of such a conference." Finally, both Conventions in Articles 13 and 10 prescribe that the IFRB is to "maintain such essential records as may be related to the performance of its duties." Numerous provisions of an administrative nature set out in the 1965 Convention are not repeated in Article 10 of Richard E. Butler, "World Administrative Radio Conference for Planning Broadcasting Satellite Service," 5 Journal of Space Law 93 (1977). Mr. Butler is the Deputy Secretary-General of the International Telecommunication Union. Infra, pp. 29, 49, 55-59.
the 1973 Convention. 2.3 Harmful Interference with Natural Resources: Spectrum and Orbit Both as a practical and as a legal matter the radio frequency is treated as a natural resource. So that this natural resource may be employed beneficially and in an orderly manner the members of the ITU have accepted the concept of "Harmful Interference." This concept is set forth in identical language in the 1965 Convention Article 48 and in the 1973 Convention Article 35. Thus, it is provided that: 1. All stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Members or of recognized private operating agencies, or of other duly authorized operating agencies which carry on radio service, and which operate in accordance with the provisions of the Radio Regulations. 2. Each Member undertakes to require the private operating agencies which it recognizes and the other operating agencies duly authorized for this purpose, to observe the provisions of [paragraph 1]. 3. Further, the Members recognize the desirability of taking all practicable steps to prevent the operation of electrical apparatus and installations of all kinds from causing harmful interference to the radio services or communications mentioned in [paragraph 1]. The two Conventions carry with them a definition of the expression "Harmful Interference." Thus, in the respective Annexes 2, entitled "Definition of Certain Terms used in the Convention and in the Regulations of the International Telecommunication Union," the expression is defined as "Any emission, radiation or induction which endangers the functioning of a radionavigation service or of other safety services (e.g., 'Any radiocommunication service used permanently or temporarily for the safeguarding of human life and property') or seriously degrades, obstructs
or repeatedly interrupts a radiocommunication service operating in accordance with the Radio Regulations." The ITU has consistently sought to encourage a rational use of the radio frequency spectrum. Thus, Article 46 of the 1965 Convention states that: Members and Associate Members recognize that it is desirable to limit the number of frequencies and the spectrum space used to the minimum essential to provide in a satisfactory manner the necessary services. To that end it is desirable that the latest technical advances be applied as soon as possible. The 1973 Convention made special provisions for radio. It particularly focused on the rational use of the radio frequency spectrum and connected this subject with the geostationary satellite orbit. Following the lead contained in Article 46 of the 1965 Convention and Article 10.3.b) of the 1973 Convention the parties agreed in Article 33 to the following: 1. Members shall endeavor to limit the number of frequencies and the spectrum space used to the minimum essential to provide in a satisfactory manner the necessary services. To that end they shall endeavor to apply the latest technical advances as soon as possible. 2. In using frequency bands for space radio services Members shall bear in mind that radio frequencies and the geostationary satellite orbit are limited natural resources, that they must be used efficiently and economically so that countries or groups of countries may have equitable access to both in conformity with the provisions of the Radio Regulations according to their needs and the technical facilities at their disposal. Aside from the fact that the 1973 Convention places a somewhat greater duty on ITU members to limit frequencies and spectrum space than in the 1965 Convention, the 1973 addition of paragraph 2 is of substantial importance. This paragraph reflects a direct and greater concern for "limited natural resources" consisting of radio frequencies and the
geostationary satellite orbit. Although the 1973 Convention focused on the need for radio frequencies for satellites, this subject was also considered in 1965. Resolution 24 of the 1965 Montreux Conference is entitled "Telecommunication and the Peaceful Uses of Outer Space." Resolution 24 called attention to United Nations General Assembly Resolutions 1721 (XVI) and 1962 (XVII) which had stated that satellite telecommunication should be available to all nations on a global and non-discriminatory basis and had identified important legal principles relating to the conduct of States in the exploration and use of the space environment. The concept that the space environment constituted a global natural resource available on a widely distributed basis was reflected in a call upon the members of the ITU to promote the principle that "all countries should have equal opportunity to use space telecommunication facilities." 2.4 The Governmental Process of the ITU To facilitate the implementation of the purposes of the Conventions each made reference to the use of and the binding force of ITU Regulations, and Administrative Regulations.^ Both Conventions provided that ratification or accession "involves acceptance of the Administrative Regulations in force at the time of ratification or accession." Article 42 of the 1973 Convention identifies the force of such regulations, namely, "The International Telecommunication Conference (Montreux, 1965) Resolution No. 24, at p. 204. Article 15 of the 1965 Convention. Articles 42 and 43 of the 1973 Convention.
provisions of the Convention are completely by the Administrative Regulations which regulate the use of telecommunication and shall be binding on all Members." In the event of inconsistent provisions in the Convention and Administrative Regulations the Convention prevails. The ITU has complemented each of the Conventions with sets of Administrative Regulations dealing with Telegraph, Telephone, Radio, and Additional Radio.The United States in accepting both conventions has attached a protocol on behalf of the territories of the United States whereby the United States does not accept "any obligations in respect to the Telephone Regulations or the Additional Radio Regulations referred to in Article 15 of the International Telecommunication Convention (Montreux, 1965)." This is set forth in Article 59 of the Final Protocol of the 1965 Convention. The same statement relating to Article 42 and Article 82 of the 1973 Convention is to be found in Article XXXVIII of the Final Protocol of that Convention. Thus, the United States, while bound by the 1973 Convention, has consistently accepted as applicable to it only the historic telegraph and radio regulations and has rejected the telephone and special radio regulations. Before proceeding to an assessment of the critically important substantive provisions of the 1959 ITU Radio Regulations, the 1963 Partial Revision of the 1959 Radio Regulations, the 1971 Final Acts of the World Administrative Radio Conference for Space Telecommunications (WARC ST), and the 1977 World Administrative Radio Conference for the Planning of the Broadcasting-Satellite Service in Frequency Bands 11.7 - 12.2 GHz Article 15 of the 1965 Convention and Articles 42 and 82 of the 1973 Convention. ^18 UST 575, TIAS 6267.
(in Regions 2 and 3) and 11.7 - 12.5 GHz (in Region 1) (WARC BS), it is necessary to identify with particularity some additional basic features of the ITU governmental process. As noted above, the regulatory regime of the ITU focuses in large part on the performance of the International Frequency Registration Board and on the Administrative Regulations of identified functional units. For radio communications the critical points in the governmental process relate to harmful interference and to the need for the rational use of the radio frequency spectrum and of the geostationary satellite orbit. International organizations typically endeavor to establish international standards. Since sovereign nation-states compose such organizations the international standards are those acceptable to such members. Once such international standards have been agreed to it then becomes the duty of such members to secure their implementation by all available national processes. The ITU operates on the premise that national self-interest will be served through the harmonious acceptance of international standards and by an orderly and consistent implementation of such standards by its membership. With respect to radio frequencies the ITU agreements consistently refer to their equitable, effective, and economical use. The agreements also provide that such frequencies should be used efficiently and economically. Over time these standards have been transposed by the ITU to the presence of space objects in geostationary orbit, particularly for 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). However, it must be recognized that both in the formulation
and in the implementation of such international standards that national interest is a dominant consideration. Thus, in some circumstances it ay be anticipated that world community interests best served through an orderly and consistent implementation of agreed to standards may be disregarded. Further, until nation-states are entirely clear as to the benefits to them of a community as opposed to a strictly national approach, there is a normal reluctance to accept international standards. In the interaction between the ITU as an international organization and its members it is of critical importance to understand the meanings given to two words, namely, "allocate" and "assign." These terms relate to access to and the use of radio frequencies, including the use of such frequencies by space objects. The position of the ITU on this was reflected by a statement of Secretary-General Mill* of the ITU in 1968 when he stated "it is certain that all telecommunications problems are the sole competence of the ITU, including problems relating to tele- communication by satellite." Radio broadcasters and listeners benefit when emissions and receptions are not marred by harmful interference. Thus, national governments either monopolize broadcasting or issue licenses to broadcasters to use specific and limited frequencies at given times. National authority is required prior to the use of the natural resource of radio wavelengths. National governments would not serve useful purposes if they were to allow use of a given spectrum in such a manner that their nationals would not be able to have the effective use of the granted privilege. Obviously, 35 Telecommunication Journal 240 (1968), cited by D. D. Smith, International Telecommunication Control 160 (1969).
there is a need to plan at a world level for the most equitable, effective and economical access to and use of radio frequencies. The ITU's international radio conferences allocate usable portions of the spectrum to different communications services, including such competitive needs as fixed, mobile, broadcast, aeronautical, maritime, and space. Thus, ITU allocations to services insures against frequency interference among such competing services, as well as among the services of competing nations. Allocations also are made to three geographical regions of the world. Very roughly, Region 1 refers to Europe (including Asiatic Russia), Africa and the Middle East, Region 2 to the Western Hemisphere, and Region 3 to the Pacific Area and the Far East. When the allocations have been formally adopted by the radio conference they are published in Article 5 of the Radio Regulations in the form of a "Table of Frequency Allocations." This process has been identified as the legislative process of the ITU's radio conferences. This legislative process forms the basis for the international standards mentioned above. Neither the ITU nor the radio conferences possess the means to force compliance even though the parties have entered into international agreements having the force of law. At this stage "the frequency spectrum is distributed among different services but not directly among different countries." Country distributions are effected by regional conferences. David M. Leive, International Telecommunications and International Law: The Regulation of~The Radio Spectrum 19 (1970). 3Ibid., p. 20.
States, as opposed to the ITU, designate or assign particular frequencies to their own national applicants.^ Such assignments are a function of the sovereignty of such States. Theoretically, such assignments could be made by States as they might see fit. However, membership in the ITU obliges them to participate in the above mentioned legislative process. Assuming a willingness on the part of the signatories to the ITU conventions a State will notify the IFRB of the frequency assignment that has been made. The Board possesses authority to examine the national notice, correspond with the State, issue findings with respect to conformity to existing laws, identify the possibility that the noticed frequency would constitute harmful interference with previously recorded assignments, and record the national assignment in the Master International Frequency Register. This phase of the ITU's activities has been described as regulatory with the functions of the Board being "quasi-judicial This conclusion is supported by the fact that the legal status of a national assignment depends in part on the findings of the Board. Thus, it will be seen that the ITU acts in two stages. In the legislative stage it is engaged in the allocation of radio frequencies to communications services at the world level. In the regulatory stage the ITU makes assessments of the assignment of frequencies by member States to specific stations to determine if such assignments are consistent with the ITU Convention, with the Radio Regulations, and with other Assignments of frequencies by the United States are "effected by the Federal Communications Commission (FCC) and the Office of Telecommunications Policy (OTP), acting in concert." Office of Telecommunications Policy, Executive Office of the President, "The Radio Frequency Spectrum, United States Use and Management," p. B-5 (1975). When the frequencies are published they constitute the National Table of Frequency Allocations. Leive, op. cit., p. 20.
relevant ITU determinations. Leive has identified these stages: The first stage is similar to a domestic legislature's passage of a law dividing a natural resource into different categories and providing that potential users file their claims within the proper categories; the second stage is comparable to the filing of claims (frequency assignments) by individual users (countries) with a domestic administrative agency (the Board). Unlike such agencies, however, the Board possesses only limited powers to review claims or to ensure compliance with the law J For the ITU to be useful in dealing with radio frequencies two things are required. First, it is necessary to be clear as to the aggregate of its powers and functions. Second, it must serve as a catalyst to bring out the clearest possible recognition on the part of its members that their well-being in the world of communications depends on community- oriented perspectives. This is because the Board does not have the authority to distribute or to withhold frequencies. Each member is allowed to make its own frequency assignments. The member can also insist that its unilaterally identified assignment be recorded in the Master Register. Thus, the ITU serves as an agent-like broker or negotiator on behalf of its client members. It is able to record the assignments made by States. On behalf of its members it can make allocations and seek to secure conformity therein. But, in the absence of good will and a sense of community on the part of its members, the effective mandate of the ITU is quite limited. 2.5 The Issue of Priority of Rights to Radio Frequencies All of the foregoing has direct relevance to space telecommunications. Among the functions given to the ITU in the 1973 Convention is the Ibid., p. 20.
following: Coordinate efforts with a view to harmonizing the development of telecommunications facilities, notably those using space techniques, with a view to full advantage being taken of their possibilities.^ This brief review of the relevant, and on the whole, consistent provisions of the 1965 and 1973 conventions has indicated that a fairly limited international regime exists concerning radio communications. The governing power of the ITU and its components requires further identification. This is needed particularly insofar as nation-states assert priority of rights to use radio frequencies with the corollary that rightful uses of the radio spectrum not be subjected to harmful interference. Such an assessment requires a more detailed examination of the role and function of the IFRB, and this in turn necessitates a further examination of the legal principles and rules developed by the ITU's Administrative Radio Conferences and their formal regulations. These include the 1959 World Administrative Radio Conference which produced "Radio Regulations, with Appendices, and Additional Protocol," the 1963 World Extraordinary Administrative Radio Conference to Allocate Frequency Bands for Space Radiocommunication Purposes which produced the "Partial Revision of Radio Regulations, Geneva, 1959, and Additional Protocol," the 1971 World Administrative Radio Conference for Space Telecommunications which 1973 Convention, Article 4.2.c). 12 UST 2377, TIAS 4893. This entered into force for the United States on October 23, 1961. 15 UST 887, TIAS 5603. This entered into force for the United States on January 1, 1965.
produced the "Final Acts of the World Administrative Radio Conference for Space Telecommunications," and the 1977 World Administrative Radio Conference for the Planning of the Broadcasting-Satellite Service which produced the "Final Acts of the World Administrative Radio Conference for 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 I)."23 All dealt with varying aspects of radio by space object or satellite services. While the 1971 agreement made the most substantial changes relating to satellites, it will be helpful to examine all of the agreements in order to be aware of the general pattern as well as the important changes. This examination will focus on two concerns. First, there is the issue of the legal right of a nation-state to use a radio frequency or geostationary orbital position that it has assigned to a national user following national registration with the ITU pursuant to its allocation procedures. Second, there is the issue of the permanency of the national right. The first issue will test the validity of the claim of "first-come is first-served." The second will test the durability of such a claim, if in fact the nation-state has acquired something of value as a result of its involvement in the assignment-allocation process. Impacting on 23 UST 1527, TIAS 7435. This entered into force for the United States on January 1, 1973. International Telecommunication Union, Geneva, 1977. This agreement had not entered into force on October 1, 1978. There is also the 1974 World Maritime Administrative Radio Conference which produced a "Partial Revision of the Radio Regulations (Geneva, 1959) with Final Protocol," U.S. Senate, Executive G, 94th Cong., 1st Sess., 1975. This was signed by the United States on June 8, 1974 with a reservation. It was intended to come into force on January 1, 1976 for governments which, by that date, had notified the ITU of their approval. This agreement is not considered here, since it relates more to maritime communications than to space communications, although the two services must accommodate to each other.
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