The first come, first served technique in space law

The first come, first served technique, used for a long time in satellite telecommunications law in order to allocate the natural resources of space (geostationary orbit, frequency spectrum) between States, is in the foreground currently in the context of the allocation of domain names allowing access to the Internet.

In these two areas covered by the law of new technologies, the choice of this rule very quickly showed its limits, which explains its questioning in favour of rules more respectful of the interest of all States concerning telecommunications law by satellite, and the interest of the holders of intellectual property rights concerning access to the Internet.

We can note certain features common to several facets of the law of new technologies, in this case to the law of data processing, more precisely to the law related to the Internet, and to the space law: both relate to great technical, economic phenomena for processing and communicating information. Both target resources (geostationary orbit and the Internet) objects of commerce.

Internet and satellite telecommunications (moreover, the Internet benefits from the performance of satellites) create a world without physical borders, just as they destroy the borders between the rights governing them, i.e. telecommunications law and IT law, which converge. The establishment of a global village, whether through the use of a physical space (the geostationary orbit and the frequency spectrum for telecommunications satellites) or a virtual space (Internet), was made thanks to the application of the principle of first come, first served, which has, in these fields, known drifts and showed its limits.

The principle of first come, first served applied to the law of space activities was posed in the law of space activities, more precisely in international telecommunications law, in order to manage the scarcity of technical supports, that is to say i.e. the twin radio frequency spectrum resource and geostationary orbit. Indeed, the orbit and the spectrum are limited natural resources, although inexhaustible, requiring that a sufficient interval be respected between the satellites in order to avoid collisions and in order to guard against interference between radio waves.

The regulation of the spectrum and the geostationary orbit was therefore imperative. These regulations are international in nature, since waves, like positions on the geostationary orbit, transcend the notion of border. It is the International Telecommunication Union (ITU) which has been given responsibility for managing the distribution of orbital positions, in addition to its original spectrum management competence.

As early as the 1960s, a procedure leading to the recording of the frequencies of geostationary satellites was put in place, and the much-disputed principle of first come, first served, implying that orbital positions and frequencies are delivered to the law of the first occupant, posed. The ITU has been the center of North-South confrontations following the criticisms addressed by the developing countries to the developed countries in that the latter would exploit their positions on the geostationary orbit and on the frequency spectrum in their self-interest, regardless of the spirit or the letter of the space treaties, which lay down the principle of the exploitation of space in the interest of all humankind.

The culmination of this conflict was stigmatised by the first come, first served rule retained by the ITU for the recording of frequencies and orbital positions for satellites. In principle, this rule does not create property rights for the benefit of first-timers, but it has been the subject of much criticism from developing countries. The first occupant system was then doubled with an a priori planning system.

These two spectrum management methods for satellite telecommunications are an illustration of two phenomena which the ITU must face: on the one hand, the race for access to space which developed countries are engaged in, the other, the privileges demanded by developing countries in order to gain better access to space.

The principle of first come, first served is the corollary of the principle of freedom of space laid down in the 1967 Outer Space Treaty: thus, everyone can place an object in space, but must respect the rights of the first occupant. Economic arguments were first put forward in support of this principle, so that countries that have invested in satellite telecommunications systems can benefit from priority access to space.

On a technical level, the first come, first served system has the advantage of flexibility, which allows better management of resources. The allocation of orbital positions and frequencies on a first come, first served basis is a procedure for frequency coordination before use under the terms of the thirty-fourth ITU report on telecommunications and the peaceful uses of outer space. The right to use an orbital position is acquired through negotiations with administrations which use the same part of the orbit. Little by little, the unused parts of the orbit thus find takers and are occupied.

The first come, first served rule, which ensures the first user a privilege enshrined in law recalls the acquisition of land by discovery: the first to discover this or that territory became its owner, provided that the occupation meets certain conditions. In outer space, the right of the first occupant is enshrined: the first to request the assignment of a frequency and an orbital position is the first to be served; the first occupant does not, however, become the owner of these scarce resources (in theory) but he occupies them first for a certain time.

The allocation of natural resources from outer space is also the result of the race. This priority occupation does not, however, give rise to the acquisition of the natural resources of the space, to their appropriation. Indeed, Article II of the 1967 Outer Space Treaty states that space “cannot be the object of national appropriation by proclamation of sovereignty, neither by use or occupation, nor by any other way”. The provisions of the OST remind us that nature, immutable in essence, is exclusive of human intervention: it is impossible for it to appropriate it.

The principle of first come, first served simply gives the right to operate a frequency without interference, based on the priority of the recording: it is a right of use, that is to say the minimum faculty which a property can be subject to. However, the fact that the first to be able to access space is the first to receive satisfaction implies that if very strict rules are not adopted in order to operate a kind of rotation between States, the use of orbital positions can be perpetual. This is demonstrated by the storage possibilities, the exchange of orbital positions, and the rental and sale practices for these same positions, which may raise doubts about the absence of property rights conferred on the beneficiaries of orbital positions.

The concept of appropriation, the fruit of the first come, first served rule, comes to mind despite the principles of efficient and economical use of the orbit and equitable access of all countries to this orbit by ITU instruments, which militate against the existence of such a property right. In some respects, this principle takes us into the grabbing dynamics, like what is happening on Earth.

If correctly applied, the principle of first come, first served allows good management of the spectrum/orbit resource. But it has been criticised because in practice, it does not allow the promotion of equity in access to space resources. The primitive principle of first come, first served has indeed resulted in the distribution of waves and orbital positions almost exclusively for the benefit of industrialised countries.

This is why planning appeared: frequency and orbital position plans were drawn up in order to preserve the twin resource for future use by all countries, especially those which do not have the current capacity to use space resources. This system relates to broadcasting satellites or direct television satellites. A planning agreement freezing the legal situation of broadcasting satellites was reached in 1977.

Each country received an orbital position and five frequency channels. This allocation procedure works without the constraint of first come, first served, as all countries are allocated a limited number of channels according to the planning method. There is therefore no piecemeal demand from Western countries alone as for fixed satellite services or for hybrid satellites.

Moreover, since the 1985 and 1988 sessions of the World Administrative Radio Conference, this procedure has gained fixed satellite services since an initiation of a priori planning of the fixed service (at least one orbital position per country on an arc and a predetermined band) was started against them. The planning method provides better than the first come, first served rule the temporary nature of the right to use the orbital position and the frequency, since the plan established by the ITU World Administrative Radio Conference must be subject to regular revisions (although these revisions must of course be carried out) even if some may have seen in this planning a manifestation of non-compliance with the principle of free access to the geostationary orbit in the extent to which planning restricts other States’ access to orbital positions.