For this new article on Space Legal Issues, let’s have a look at the sectoral space regulations.
On the sectoral space regulations, since the first commercial telecommunications satellites were put into orbit in 1965, there has been a real economic explosion in this sector, with the proliferation of networks, whether at national, regional or global level. International (Intelsat, Inmarsat, Interspoutnik) or regional (Eutelsat, Arabsat) satellite communications organisations have been established to manage these commercial systems.
Established by intergovernmental agreements, these organisations, of which Intelsat has served as a model, include both state and state-designated telecommunications representatives, who may be public or private. Given the fact that deregulation is taking place in this fast growing sector, the status of these intergovernmental organisations is being questioned, leading to a progressive demonopolisation of operators, both national and international. This is the case of Inmarsat, which has already privatised some of its activities, and the process is underway for Intelsat.
While this tendency towards “privatisation” poses considerable legal problems, its solution to specific rules of space law. On the other hand, the proliferation of these systems, which use the limited natural resources of the frequency spectrum and the orbit of geostationary satellites, on which the telecommunications satellites are placed, has very early made a need for specific regulation. It is the work of the International Telecommunications Union (ITU), and its administrative radiocommunication conferences, which, as it has done for more than a hundred and fifty years for other radiocommunication services, has extended its regulation to telecommunications satellites including those of direct broadcasting.
Regulating the use of frequencies and orbital positions
Continuing on the sectoral space regulations, one of ITU’s main tasks is to allocate frequencies and orbital positions to services and to different potential users, with the aim of maximising the use of spectrum and orbital locations by avoiding harmful interference, and to ensure equal access for all. Thus, since the beginning of the space age, the distribution system has been revised periodically to take into account both technological progress, the scarcity of positions in the geostationary orbit and associated frequencies, and claims issued by developing countries for equitable access to these resources.
This system is increasingly presented as a compromise between the validation of the first-person right or “first-come, first-served” rule, and the planning of services that challenges acquired situations based on unilateral occupations. With regard to geostationary orbit, considered as a limited natural resource that “must be used rationally, efficiently and economically”, the ITU has, inter alia, provided equitable access for all to this area by adopting the principle, in certain frequency bands of the fixed-satellite service, of allocating at least one position in the geostationary orbit to each of the ITU Member States for its national services.
These provisions were incorporated into the ITU Convention and Constitution of December 22, 1992, together with its annexed Radio Regulations, texts having the binding force of international treaties. Thus, the evolution of space law in this specific sector of access to radiocommunications has gradually given spectrum/orbit the essential characteristics of the notion of “the common heritage of humanity”, even if the legal status of this geostationary orbit has not yet been agreed by the United Nations.
With respect to the growing development of new mobile-satellite communications services and future low-orbit satellite-based multimedia services, new rules were adopted by the ITU, which will allow simultaneous access of several operators of non-geostationary satellites to the same frequency bands, with power limitations to avoid interference.
Geostationary satellites are defined by the Radio Regulations as those whose “circular and direct orbit is in the plane of the Earth’s equator”, a group of states whose territory lies along the equator, have, by a Declaration made at Bogota on December 3, 1976, affirmed their sovereignty over the segment of the geostationary orbit situated above their territory. Joined over time by some developing countries that do not have the technical and financial means to put a telecommunications satellite into orbit, these States, relying in particular on the fact that this orbit is a rare natural resource that is likely to rapidly be saturated, required special access, or at least a right of access reserved for that orbit.
The geostationary orbit, which has been studied by the COPUOS Scientific and Technical Subcommittee in terms of its nature and technical characteristics, has since 1969 been the subject of a thorough examination by the Legal Subcommittee, without prejudice to the work of the ITU. The situation seems always to be frozen between those States that want to be granted preferential rights and the other States, in particular technologically developed States, which consider that any claim in this sense would be an attempt at appropriation of space, prohibited by Article II of the 1967 Outer Space Treaty, and furthermore, that there is no absolute saturation or irreversible consumption of the geostationary orbit, since the capacity of the orbit depends in particular on the technical progress (and the limited lifetime of the geostationary orbit satellites).
Points of convergence seem nevertheless to emerge between these two theses which could lead to a minimum agreement on the principles governing the use or occupation of the geostationary orbit. In relation to the use of telecommunication satellites, whether in the fixed service or the broadcasting service, the legal problems posed by the transmission of satellite images will be mentioned separately.
Satellite broadcasting and sectoral space regulations
With sectoral space regulations, direct-to-home satellite television poses a serious threat to the sovereignty of States as programs issued from one state are likely to be received directly by nationals of another state. In the 1970s, technicians designed broadcast satellites whose emissions were to be received directly on the ground by satellite dishes. On a technical level, the question of the distribution of frequencies and orbital positions was settled by the adoption of a plan by the ITU Conferences of 1977 and 1983 for the broadcasting service in the band of 12 GHz.
The principles retained were those of national coverage, with the exception of unavoidable technical overflow and a fair but limited allocation of direct-to-home satellite television channels for each State. Despite these technical limitations, with many States expressing the wish to be able to control the content of the broadcasts received by their nationals in the context of international direct television, the problem facing the United Nations was that of the conciliation of two antinomic principles: that of the free flow of information, supported by the industrialised countries, and that of national sovereignty, ardently defended by the Soviet Union and most developing countries.
Despite fourteen years of work, from 1968 to 1982, on a draft of legal principles relating to the use of direct-to-satellite television by its Legal Subcommittee, COPUOS failed to reach consensus on these principles, the main obstacle being the introduction of a system of prior authorisation of receiving States. Resolution 37/92, adopted by the General Assembly of the United Nations on December 10, 1982, has the value of a simple recommendation and has therefore remained a dead letter.
Very quickly, technological developments have also allowed the direct reception by small satellite dishes of television images transmitted by the conventional telecommunications satellites of the fixed service, and the regulations put in place have become obsolete. Thus, we have moved towards more positive regional solutions, particularly in the European context, where the European Convention on Transfrontier Television adopted on March 15, 1989 by the Council of Europe and the “Television Without Frontiers” Directive of October 3, 1989, made it possible to abolish all obstacle in the circulation of programs, whatever the nature of their technical support. The problem of universal regulation of satellite television, which cannot be imposed by conventional means and can only be built through the development of bi- or multilateral cooperation, remains unresolved and unresolved.
Satellite observation and sectoral space regulations
Talking about sectoral space regulations, the development of operational satellite remote sensing systems for commercial purposes led COPUOS in 1972 to consider the adoption, if not a treaty, of at least a “code of conduct” on the use of satellites for the purpose of remote sensing and the use of remote sensing data. As in the case of direct-to-satellite television, the problem to be solved was that of the conflict between the principle of freedom of use of space and the sovereignty of States, combined here with their right to the protection of their natural resources.
Although there was consensus on some principles, the adoption of satellite remote sensing guidelines has for a long time stumbled on the fundamental question of whether or not the prior consent of the State observed was necessary to ensure that a launching State may make remote sensing of its territory and may make the information obtained available to third parties. This need for prior consent on the part of the televised State was not retained in the text of Resolution 41/65 adopted by consensus by the UN General Assembly on December 3, 1986 and covering principles applicable to remote sensing.
It is defined as the study of the Earth’s surface from space with the aim of “improving the management of natural resources, land use and environmental protection”. The principles calling for international cooperation on a case-by-case basis, based on “equitable and mutually acceptable conditions”, require the dissemination of available information on the occurrence of any phenomenon prejudicial to the Earth’s environment and natural disasters, and declare that access by an observed State to data concerning its territory must be made on a “non-discriminatory and reasonably priced” basis.
Finally, a State conducting a remote sensing program must, at the request of a State whose territory is observed (in particular developing countries), enter into consultation with that State in order to enable it to participate in this program. It should be noted that although these principles were adopted by consensus, they were drafted in terms of recommendations, leaving States with considerable flexibility to adopt laws domestically.
This was notably the case of the United States of America, which since 1984 has adopted a law on the commercialisation of remote sensing, amended in 1992, whose provisions are in conformity with the principles of the United Nations. It still remains to be defined in this area of the rules relating to the legal protection of data which, for the time being, fall within the contractual practice of the States which are remote observers and the undertakings under their jurisdiction.
Space transportation when speaking about sectoral space regulations, this means launching activities that provide access to space, either using conventional non-reusable rockets or new means of transportation. While for a long time only States had the necessary capacity to carry out these launches, with the development of commercial space activities, there has been an evolution that has led some private companies to offer launch services. As space activities are state-based, they therefore appear immediately in the field of Public International Law. Therefore, even if private companies are involved, it is still the State (or international organisations) that is involved at the international level, and which must provide for procedures for authorisation and monitoring of these activities.
It is up to each State, according to the legislative modalities of its choice, to fulfil these obligations. From these launch authorisations, the private companies in charge of such operations act on the basis of the rules of commercial law and under private law contracts. The regulatory modalities relating to the relations between these various actors are different according to the space powers concerned which have been engaged for some years in a particularly severe competition.
In the United States of America, it is the Commercial Space Launch Act of 1984 which lays down the conditions under which launch services may be exercised by private companies, while in Europe was established in March 1980 the Arianespace company, in the form of a public limited company under French law. The relations between the European States involved in the production of the Ariane launcher and Arianespace are laid down in a 1980 Declaration, renewed in 1990, the French State being responsible under Article VI of the 1967 Treaty.
Space launch contracts are private-law contracts, but because of the original nature of the services provided and the technical risks involved, a certain specificity is attached to this type of contract as regards its legal regime and the coverage of economic risks.
Let us emphasise here that the space industry, relieving itself of any technical failure, acts according to the principle of the best effort with an obligation of means rather than an obligation of results. In the majority of contracts, there are no-recourse clauses between suppliers, operators and customers, insurance contracts taking over to enable risk to be integrated.
Still, with the increased commercialisation of space activities and the entry of companies into this sector of activity, conflicts of interest appear, which will require that effective procedures be put in place for the settlement of disputes. This is what can be said about sectoral space regulations.