The Bogotá Declaration and space law

For this new space law article, let’s study the Bogotá Declaration. Faced with the saturation of the orbit and frequencies by developed countries, some equatorial countries have claimed in 1976 sovereignty or exclusive rights over portions of the geostationary orbit located above their territory. They questioned the applicability of the 1967 Outer Space Treaty to this area. Most states, on the contrary, believe that the 1967 Outer Space Treaty applies to the geostationary orbit.

By the Declaration Of The First Meeting Of Equatorial Countries or “Bogotá Declaration”, adopted on December 3, 1976, seven equatorial countries affirmed their sovereignty over the portions of geostationary orbit over their territory. These states are: Colombia, the Republic of Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire; an eighth state, Brazil, has signed the Bogotá Declaration as an observer. Gabon and Somalia joined this group later.

The Bogotá Declaration and space law

In order to preserve their interests against the developed countries, the equatorial countries have claimed to extend their national jurisdiction to the part of the geostationary orbit situated above their territory. Because it only benefited a tiny minority of uninfluential states, this claim ran into opposition from the international community. The equatorial states have recently reformulated their claims in more moderate terms: instead of asserting their sovereignty, they now prefer to invoke preferential rights. Nevertheless, even in this form, these claims appear to be inconsistent with the 1967 Outer Space Treaty, of which Article II prohibits national appropriation: “Outer  space,  including  the  Moon  and  other  celestial  bodies,  is  not  subject  to national  appropriation  by  claim  of  sovereignty,  by  means  of  use  or  occupation,  or by  any  other  means”.

On a scientific level, the equatorial countries have argued that the geostationary orbit is a phenomenon related exclusively to Earth’s gravity and is not part of outer space. Legally, therefore, it cannot be subject to space law and the prohibition of appropriation enshrined in the 1967 Outer Space Treaty. The part of this area which is located above the equatorial countries would fall within their national space. These countries added that geostationary orbit is a limited natural resource on which they exercise their permanent sovereignty. The absence of delimitation of outer space and the right of each State to define its national space are invoked in support of these claims. It follows from this absence of delimitation that the scope of the principle of non-appropriation remains undefined and that that principle appears in any event to be inapplicable to the geostationary orbit.

The Bogotá Declaration states that geostationary positions above the high seas are the common heritage of mankind. On the other hand, no specific legal basis is clearly invoked to justify that the portions of the geostationary orbit claimed by the equatorial countries belong to these states rather than to any other state. Siegfried Weissner, a Professor of Law, believes that the claims of these countries are based on the idea of contiguity; “The Public Order of the Geostationary Orbit: Blueprints for the Future”.

As a consequence of its incorporation into the national territory claimed by the equatorial countries, the geostationary orbit (overlying) would not be subject to a regime of free and equal access for all states. The former would be the sole masters of the use of this space. The placing of geostationary satellites in orbit would be subject to prior authorization and the exploitation of this position should be in accordance with the national laws of the countries in question.

In the context of the International Telecommunication Union (ITU), the equatorial countries have repeatedly reaffirmed their claims. At the WARC on Direct Broadcasting, they expressed reservations to the Final Acts of this conference. They emphasized that they did not claim sovereignty over space within the meaning of the 1967 Outer Space Treaty, which did have the effect of including in outer space spaces previously subject to the jurisdiction of states.

They further stated that the positioning and operations of geostationary satellites over their territories should be subject to the authorization and national legislation of the underlying state. Finally, they added that they did not consider themselves bound by the resolutions, agreements and decisions of the Conference relating to the positioning of satellites in their orbital space. At subsequent ITU conferences, the equatorial countries have generally maintained their claims.

Because of the opposition they have faced with the Bogotá Declaration, the positions of the equatorial countries has evolved: they no longer claim sovereignty over the geostationary orbit, but only “preferential rights”. At the same time, they no longer oppose efforts, particularly by the ITU, to define an international regime for access to the geostationary orbit, taking into account the interests of developing countries, but consider that this regime should give them preferential rights. However, at the level of the legal regime of the geostationary orbit, the evolution of the requirements of the equatorial countries is less clear, since they always claim to require prior authorization for the geostationary satellites into orbit. Finally, Colombia suggested an analogy with the Exclusive Economic Zone in the Law of the Sea to distinguish sovereignty from the “rights to explore and exploit”. The role of the ITU and the place of a future international regime in relation to these rights does not appear to be very clear in the conception of the equatorial countries. Their claims have been rejected by the dominant doctrine and by most states.

The current access regime to the geostationary orbit includes both the prohibition to appropriate this space and the right to use it. The principle of non-appropriation of the 1967 Outer Space Treaty does not impose limits on the duration or number of satellites that a state may place there. Geostationary satellites also have the right to use the associated frequencies. This de facto appropriation by the first-comers, developed countries, of the orbit and frequencies, is protected by space law and International Telecommunications Law. The challenge by developing countries of grabbing these resources is therefore unjustified on the basis of existing law. Denying access to newcomers or making access more difficult does not constitute appropriation; it simply results from the traditional system of distribution of access rights.

The practice of developed states is based on free access and priority given to the first satellites placed in the geostationary orbit. The placing into orbit of satellites is in accordance with the 1967 Outer Space Treaty. These satellites have the right to pursue a trajectory without interference from satellites later placed in orbit. In addition, the international regulation of the radio spectrum has favored the development of satellite telecommunications systems. Increasing congestion of the orbit and frequencies may limit the access and opportunities of developing countries in the future. It will become more and more difficult to use frequencies from the geostationary orbit under satisfactory conditions (without creating or suffering radio interference, or without incurring additional costs). Common law regime for the use of frequencies traditionally protects the first users against such interference. In this situation, new entrants must design their space telecommunication systems taking into account both the trajectory and the frequencies used by the satellites in place.

Unlike the regime of orbit and outer space in general, for more than half a century, there has already been an institutionalized mechanism for access to radio frequencies. This mechanism makes it possible to coordinate the use of frequencies and thereby, prevents harmful interference between radio stations under the jurisdiction of different states. In order to avoid anarchy in this area, ITU distributes radio waves between recognized radio services. Thus, the frequencies used by the various services at the international level are determined in advance before the establishment of telecommunications stations. Any state wishing to establish a station and allocate a frequency band, must comply with the service allocation deriving from international regulations.

While inter-service distribution is pre-established, the distribution among states within a given service is traditionally done according to their order of arrival: the first to notify the use of a frequency band by a station under its jurisdiction acquires a right of priority at the international level. Frequency assignments by states must be registered with the ITU. Within the latter, the International Frequency Registration Board examines the compliance of these assignments with the regulations in force and the possibility of interference with other stations already in operation. In case of conflict between an existing user registered before the International Frequency Registration Board and a newcomer, preference is given to the first one; this is sometimes described as “first come, first served”.

Some developing countries have argued that the utilization of geostationary orbit by developed countries is contrary to the 1967 Outer Space Treaty and, in particular, to the principle of non-appropriation. For a variety of reasons, this challenge to current practice does not really addresses the problem of orbital saturation. First, the 1967 Outer Space Treaty and the prohibition of appropriation do not limit the use of orbital space. In addition, this instrument appears unable to provide a solution to the problem of saturation of the orbit, because it is primarily due to exogenous constraints related to the use of radio frequencies. Access to the frequency spectrum depends on International Telecommunications Law and not on space law.

Continuing with the Bogotá Declaration, Article II of the 1967 Outer Space Treaty prohibits, inter alia, appropriation “by use”. This terminology seems to support, as developing countries have done, that the occupation of geostationary positions constitutes appropriation. On the contrary, developed countries, including the United States of America and Russia, have argued that the use of a favorable orbit for legitimate activities cannot be considered a prohibited appropriation. The German Democratic Republic, for its part, has stated in 1976 that: “The use of the geostationary-satellite orbit by States or international organizations does not constitute an appropriation by use or occupation within the meaning of Article II of the 1967 Treaty as long as it is not dictated by the manifest intent to establish and maintain exclusive sovereign rights over any part of the orbit”.

Only a minority of authors have challenged the current practice of access to the geostationary orbit on the basis of the 1967 Outer Space Treaty. According to Marko G. Markoff, the permanent occupation of an orbital area by a space station which is used for the exclusive benefit of a state contradicts, even in the absence of animus appropriandi, the principles of non-appropriation and use of space in the interest of all states.

Concluding remarks

The geostationary orbit is part of outer space and, as such, the customary principle of non-appropriation and the 1967 Outer Space Treaty apply to it. The equatorial countries have claimed sovereignty and then preferential rights over this space. These claims are contrary to the 1967 Outer Space Treaty and customary law. However, they testify to the anxiety of the equatorial countries, shared by developing countries, in the face of the saturation and seizure of geostationary positions by the developed countries.

However, the question of saturation of the orbit is too complex to be considered and resolved within the limited framework of the principles of space law, including the principle of non-appropriation. The regime of res communis of outer space in space law (free access and non-appropriation) does not meet the demand of the developing countries that their possibilities of future access to the geostationary orbit and associated radio frequencies be guaranteed. New rules appear necessary and have been envisaged to ensure the access of all states to these positions and frequencies. That is what can be said concerning the Bogotá Declaration.