“Paper satellites” and the free use of outer space

Iulia-Diana Galeriu has been a Legal Intern at IATA Geneva (2014-2015), and an International Institute of Air and Space Law Alumna. She holds the LLM (adv.) in Air & Space Law from Leiden University (2013-2014), and the Bachelor’s Degree in Law from the University of Bucharest (2009-2013).

Introduction

The orbit location spectrum resource is the main source of value for the growing satellite industry.[2] Due to its position in relation to the Earth, the most craved orbital slots are those in the GSO.[3] In this context, this resource has a dual nature, as its value can be realized only through the simultaneous use of both the orbital location and the electromagnetic spectrum.[4] The laws of physics cannot be bent by the will of States, and thus, if two different transmissions are made in the same geographic area at the same frequency, they will interfere with each other resulting in deterioration or even loss of signal.[5] This is where the role of the ITU comes in.[6] By coordinating frequencies between operators of neighboring satellite networks, it aims at ensuring that no satellite system interferes with another by operating on the same radio frequency in the same orbital position.[7] The demand for satellite based telecommunication services increased in the past 25 years, and so has the demand for frequency spectrum usage.[8] Where there was once an orbital separation between two satellite frequencies of over 3 degrees, many satellites are now operating at a less than 2 degrees separation, thus increasing the risk of interference between the two frequencies.[9] The orbital resources of the GSO have become more and more saturated, almost reaching the value of “prime real estate”[10], its scarce nature triggering a race amongst States to obtain a spot on orbit. Due to the “first-come, first-served” system of allocation of the ITU[11], States which do not have a chance in the near future to send a satellite of their own into outer space, have turned to a method of reserving a spot in the GSO, in the hope that it will be brought into use in the future. As the practice of advanced filing blocks the orbital slot without effectively using it, such a practice infringes both the provisions of the Outer Space Treaty[12] [herein after: OST] and of the ITU Radio Regulations[13] [herein after: RR]. These satellites, that are to take their spot in orbit, usually never materialize; they remain only as a request on paper, and thus their name “paper satellites”.[14]

The issue of paper satellites

Radio stations and their transmissions are in the mandate of the ITU. The ITU maintains efficient procedures of coordinating telecommunications with a view to ensure optimal, fair and rational use of the radio frequency spectrum.[15] Due to the rapid development of space technology and the renunciation of “the aim of achieving a single global commercial telecommunications satellite system”[16] by INTELSAT[17], entrepreneurs felt encouraged to embark on a telecommunications business in the 1980’s, which was followed by the privatization of international governmental organizations such as INMARSAT, INTELSAT and EUTELSAT.[18] This has created a competitive environment for obtaining orbital slots and associated frequencies in the GSO. If in 1984, 138 satellites were operated in the GSO, in 2013 it was published that 305 commercial satellites were placed in orbit only in that year.[19] The ITU estimated that each year, it receives between 400-500 requests for a new network system.[20] This increase in demand has lead to a deficiency in orbital slots.The ITU’s filing system for frequencies of “first-come, first served”, combined with the lengthily international co-ordination procedure[21], that in case of a very complex system, can take years to complete, has had an unsettling effect amongst non-space faring States. Thus, these States sought to file in advance for an orbital slot, in order to preserve that position and frequency bands for its own possible future use, or in order to lease or sell it to another user for economic benefits. The coordination services previously offered by the ITU to its member States were free, and with no penalty for failing to develop a notified system. This was perhaps the reason why regular over-filing as a securing measure for future needs did not raise any red flags at that moment.[22]

After having to deal with cases such as the Tonga case and the Zohrer 1 and 2 case, the ITU became concerned by the growing number of paper satellites and started a fact-finding survey in 2009 of how many satellites had been truly launched and in operation at the position filed in the Master International Frequency Register [herein after: MIFR].[23] As a result, the ITU removed 145 satellite networks from the MIFR, with another 325 satellite networks suspected, as there was no proof of “bringing into use”[24] and of the continuity of operation of networks.[25] As a whole, the percentage of inappropriate recordings was about 45% of the investigated satellite networks.[26]

Having to deal with such a congested orbit, the main issue at hand is the maximization of frequency resources in the GSO and the optimizing of frequency reuse within reduced orbital spacing.[27]In order to have an efficient distribution of slots and to ensure the absence of interference between the growing number of satellite transmissions, the ITU established an international legal regime codified in the ITU Constitution and Convention, as well as in the RR.[28]

The Preamble of the ITU Convention states that one of the purposes of the ITU is to facilitate “peaceful relations, international cooperation and economic and social development among peoples by means of efficient telecommunication services”[29]. Hence, in order to avoid harmful interference between radio stations of different States, the ITU Constitution entitles the ITU to effect allocation of bands of the radio-frequency spectrum, allocation of radio frequencies and the registration of radio-frequency assignments for space services of any associated orbital position in the GSO or of any associated characteristics of satellites in other orbits.[30]

Judging from the ITU Constitution, more specifically art. 44[31], two main principles guiding radio-frequency allocation can be identified: the efficient use of spectrum/orbit resources and equitable access to the spectrum/orbit resources.The exploration and use of outer space is open to all States, without discrimination and on equal basis even prior to the Outer Space Treaty of 1967.[32] However, in terms of occupation of the GSO, equitable access to broadcasting satellites services has been internationalized only to a limited extent.[33] The Radio Regulations establish priority of use of defined radiofrequency spectrum at designated orbital slots based on a “first come – first served” procedure. Should these regulations be applied in good faith, the procedure would serve to fill the gaps in the orbit and would result, in principle, in a homogeneous orbital distribution of satellites in the GSO.[34] Yet the problem has not been completely solved. The main issue is that the GSO is a limited natural resource. Thus the obvious question is raised: How is the first-come, first-served principle equitable, when it is applied to such a scarce natural resource? Due to the unbalance of State’s possibilities to engage in space activities and the limited nature of the orbital slots, developing States, especially the equatorial ones, led by Colombia, have been struggling to ensure their position is orbit since 1976.[35] The ITU tried to ensure by means of Art. 44(2) of its Constitution, that the interests of developing States would not be affected through this system of allocation. However, the opinion expressed in the doctrine, that it is difficult to see how this mechanism can prevent a de facto occupation of the most valuable GSO slots by the already space faring nations, before the developing States will have a chance to send in outer space a satellite of their own, cannot be ignored.[36] Thus, it comes as no surprise that non-space faring States sought to ensure a slot of their own in orbit, before all the valuable positions are taken over by developed nations.

Case Law

What is noteworthy is that these States that file for orbital slots in advance are fully aware that they cannot possibly operate those positions at the moment they register them in the MIFR, and therefore they lease them in order to receive economic benefits. The most relevant cases related to this issue are that of the Tongsat satellite and the Zohrer-1 and Zohrer-2 satellites.[37]

The case of Tonga

The issue of paper satellites was first recognized in 1990 when the Tongan Government filed for 16 geostationary orbiting positions with the ITU, ultimately acquiring only 6 the following year, without a specific and realistic plan of launching its own satellites.[38] What happened instead was that Tongasat, a satellite company formed to handle Tonga’s satellites, proceeded to rent an allotment to Unicorn, a Colorado company, and afterwards auctioned off its remaining slots for $2 million per year for each orbit.[39]

INTELSAT reacted by claiming that Tongasat’s actions amounted to financial speculation in the GSO, in violation of the ITU Regulations.[40] Columbia Communications filed a petition with the Federal Communications Commission requesting that applications for landing rights[41] to any company using Tonga’s slots be denied.[42] Columbia claimed that Tonga was violating a fundamental principle of orbital resource allocation, in the sense that no entity or nation may lay claim to the orbit/spectrum resource as a commodity that can be warehoused or traded. What is interesting to observe is that Tonga never denied its plans to lease or sell its slots in the future, arguing that once the ITU accepted its request, the issue was closed, and that it is Colombia that is acting in an anticompetitive manner.[43] Consequently, Columbia insisted that the issue be raised at the 1995 World Radio Conference[44], however, the only result that the ITU reached was to approve a plan whereby the ITU staff reviewed the procedures and report on slot allocations by 1997. In March 1996 Tonga made public its intentions to lease its remaining slots.[45]

Therefore, Tonga managed to use the system to its own advantage. Tonga’s action was not explicitly against the relevant provisions of the RR, but it was widely considered against the spirit of the international space law including the OST[46], ITU Convention, Constitution[47] and other related instruments.[48] Thus, this developing State managed to raise the question amongst the international community as to whether this behavior violates international legal requirements, or if it is the system that needs to be improved?[49]

The case of Zohrer-1 and Zohrer-2

Iran planned to launch two communication satellites Zohrer-1, and Zohrer-2 at 34 degrees and 26 degrees east longitude respectively and successfully obtained the frequencies associated with GSO positions in the MIFR. However, the deadline to keep the two positions and frequencies was approaching and there was no proof that the satellites were in fact launched. This determined the ITU to take a closer look at the facts of the case.

Regarding the satellite registered at 34 degrees east, there was reason to believe that no satellite was launched within 7 years form registration in the MIFR.[50] Thus, on July 2011 the Radio Regulations Board announced to Iran that it had deleted its recording from the MIFR.[51] What is noteworthy is the reasoning behind this decision. It is in the ITU approach not to question the wording of a sovereign State, so it could not base its decision on the absence of a satellite that was announced as being operational. It did, however, argue that the suspension of the operation of the satellite exceeded 2 years. Furthermore, Iran’s action was regarded as being seriously against the spirit of the Preamble and Art.44 (2) of the ITU Constitution in terms of cooperation and efficient use of the GSO.[52] In 2012, after being allowed to keep its position under the condition that the satellite would be finally brought into use, and failing to do so, the Zohrer-1 satellite lost its frequency designation.[53]

The Zoher-2 situation was slightly more complex. Iran notified the Radiocommunication Bureau [herein after: RB] that the assigned frequency had been brought into use; however, the RB had no proof that Zohrer-2 physically existed. On the contrary, it had reasons to believe that the frequency on 26 degrees east had been used by a series of different satellites including most recently BADR-5 of Arabsat starting from July 2010.[54] France, second in line for slot allocation, argued that Iran had lost the spot due to the failure of bringing into use at all.[55] When the Board was asked to address the problem, it chose not to go into the issue of leasing as “huge commercial interests”[56] had to be respected. Thus, accepting the statement of a sovereign State, the RRB decided that the Zohrer-2 satellite network should be retained in the MIFR based on RR. paragraph 13.6[57], and requested the coordination of Ka- and Ku-band among Iran, France and Saudi Arabia in conformity with the spirit of Art. 44 of the ITU Constitution and Resolution 2[58], as they were all positioned very close to each other. It took the three States another 2 years to coordinate their frequencies, and in the end 50% of the frequency was used by France and the remaining 50% had to be shared between Iran and Saudi Arabia.[59] In total, the position at 26 degrees east was blocked for 7 years.

The nature of the geostationary orbit and the free use of outer space

The GSO is one of the most used and most useful parts of outer space.[60] However, before reaching this conclusion, there was a long debate in UNCOPUOS[61] whether the GSO is part of outer space at all. The debate was ceased in 2000, when the Czech delegation presented a working paper in which the GSO was considered as being part of the outer space, opinion which was endorsed by UNCOPUOS.[62] The reason why it is important to recognize the GSO as part of the outer space is because it would make applicable to it all provisions of the space treaties which refer to the rights and obligations of member States towards outer space and celestial bodies.

The issue regarding the nature of the GSO started with the Bogota Declaration in 1976 when equatorial States[63] raised sovereignty claims over the portions of the GSO over their territories.[64] Such a bold statement raised great opposition in the international community and in the end, the overwhelming rejection of the Declaration validated the principle of non-appropriation of the GSO.[65] However, the Bogota Declaration did bring into focus an important issue: Is the GSO used equitably and in the interest of all States? It has been questioned whether the signatories to the Declaration truly wanted to claim property rights over the GSO or they were simply exercising political pressure on the developed States that were monopolizing the GSO and consequently restraining the use of the orbit by late-comer developing States.[66]

From a factual perspective, the number of satellites the GSO can accommodate is clearly limited. In addition to that, some slots are more advantageous than others for technical, commercial or other reasons[67] and thus, the GSO was declared by UNCOPUOS as “a limited natural resource”[68]. This principle was also recognized in the ITU Convention.[69] The allocation procedure based on the “first-come, first-served” three-stage process: informing, coordinating and recording, is becoming unsatisfactory. According to art. 44 of the ITU Constitution, members “endeavor to limit the number of frequencies and the spectrum used to the minimum essential to provide in a satisfactorily manner the necessary services.” Members are also reminded that radio frequencies and any associated orbits, including the GSO, are limited natural resources and that “they must be used rationally, efficiently and economically, conformity with the provisions of the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of developing countries and the geographical situation of particular countries”. On the other hand, spectrum bands and orbital positions in the GSO are recognized as being commercially valuable.[70] When commercial interests are added next to a slow ITU process and a lack of penalty for breaching ITU provisions, States were only encouraged to abuse these rules.

Article I of the OST refers, amongst others, to the free use of outer space. The term ‘use’ has been recognized as referring to both commercial and non-commercial use of outer space, while the word ‘free’ refers to the free access to all areas of celestial bodies.[71] Activities such as launch and usage of satellites is one that can clearly have a commercial nature, yet, access does not imply ownership of a position or segment of the orbit, but only admittance to it.[72] Whether satellite communications are governed by the principles of “common interests” or the “common heritage of mankind,” the associated principle of non-appropriation as described in the OST[73] does apply to the orbit/spectrum resource. The reasoning behind this principle is that “appropriation by a single State is inconsistent with freedom of use by all States“[74], as assertion of sovereignty by any one State over the orbit/spectrum resource, or a portion of it, by definition would only benefit the appropriating State.[75] Thus the only natural conclusion that can stem from the application of the OST is that, similar to other space resources, the spectrum in the GSO is not subject to appropriation, but it should be used freely and equitably. However, it is highly questionable whether the practice of over-filing rises up to this requirement.

Consequences of the over-filing practice

When a slot is artificially reserved by a State and the position is blocked without any real future project, it is only natural that issues will arise. The two main problems are: firstly, the fact that paper satellites hinder the use of the GSO by States that have the capability to place a satellite in orbit, and secondly, it unnecessarily complicates the ITU coordination system.

In terms of over-filing and the free use of outer space, the issue of ‘time’ is of the essence. The aspect of time with regard to the use of satellites has a three folded effect. Firstly, if a State has acquired a slot, it can retain it for 7 years without using it. Secondly the lengthily coordination procedure encourages developing States to bypass the system and lease or purchase the already allocated orbital spot that was already granted to developing States that are unable to use it. Thirdly, there is no provision in the ITU instruments that require a State to return an orbital position after the end of the operating life of the satellite.

Under the RR[76] a satellite registered in the MIFR must be brought into use within 7 years, before it gets automatically erased from the register. Therefore, in the case of a paper satellite, an orbital slot will remain blocked for at least 7 years. Similar to the 2 Zohrer satellites cases, if a State informs the ITU that a satellite had been launched in the registered position, the ITU will not question such a declaration. Thus, starting an investigation and trying to prove that there is no physical existence of that satellite in orbit will take another several years. For example, in the Zohrer-2 case, Iran notified the ITU that the satellite was brought into use in 1995, but the case was settled in 2012.

Many of the States that file for a position in the GSO are aware that they may not have the possibility to operate it in the required time, but they intend to lease it to other space faring nations for commercial gain, as it was the case of the Tongasat. Clients can be easily found. The three step allocation procedure of the ITU can be tedious, while contracting with a State that already has an available position would be significantly less complicated. Such a mechanism would also be beneficial for States that have not acquired their desired number of slots form the ITU, and thus they can supplement them with slots owned and not operated by other States. Between the contracting parties it would be a win-win situation, as the developed State gets the opportunity to benefit from its technology fast, while the developing country can argue that the position was brought into use.

The final time related aspect is the fact that there is no time limit for which a satellite can occupy a GSO slot after receiving authorization from the ITU.[77] The average life span of a satellite is around 15 years[78], but as there is no binding obligation for States to return the slot, the GSO becomes artificially congested, making it harder to allocate orbital positions in the future, even though some satellites do not even exist in their registered position. Such a behavior of the States is inequitable, and goes against the purposes of the ITU.

By taking all these facts into consideration it can be stated that the over-filing practice is hindering both the right of free use of outer space, but also the sound development of radiocommunications. Therefore, the filing of a paper satellite blocks the productive use by others with more pending needs, at the same time thwarting the registration by developing States, whose ability to finance and use satellite technology typically arises after developed countries have already enjoyed first choice opportunities.[79] It has been recognized that, although the practice of overfilling is completely economically rational, it blocks access to spectrum and orbital resources[80]and wastes unused portions of the orbit. This issue seems to arise mainly from the ITU procedure; however, it is difficult to balance considerations of economy and efficiency, with those of equity.[81]

Another aspect that is inconsistent with the free and equitable access is the leasing of orbit resources. Leasing slots to the highest bidder, as was the case of Tonga, favors the technologically advanced, wealthy countries or even private entities, thus undercutting both goals of equitable access and efficiency[82]. On such a market, only wealthy and already developed States can afford to play, while developing countries are left out. One might argue that developing States enjoy under art. 44 of the ITU Constitution[83] some level of protection for their needs. Does that mean that developing States have priority in the allocation process? It does not. The protection of the developing States under the ITU is limited, and thus, such States can easily become the victims of those more technologically advanced. Another harming effect of spectrum leasing would be that such a practice, that would work according to the basic market principle- offer and demand -, would only raise the price for placing satellites in orbit, affecting even more the free access to such positions. The only contradicting factor is that it is usually these developing States that get involved in the over-filing process in order to ensure their position. All these factors seem to go back to the same root, the procedure of the ITU.

Given the scarcity of available orbital slots and associated frequencies, many new comers approach administrations of States other than those of their country of incorporation or other licensees, to acquire orbital rights. Some of the countries who received planned allotments under a priori procedure, and have no immediate space capabilities have been entering into this secondary market of licenses.[84] The regime governing the transfer or assignment of licenses varies from State to State.[85] Although there are doubts whether this amounts to commercialization, it does show the economic impact this practice may have on access to the GSO.[86]

On an indirect level, the free use of outer space principle is also affected by the artificial crowding of the GSO. The existence of a significant number of paper satellites hinders the speedy coordination of legitimate satellite networks and can add significantly to the costs associated with such coordination.[87] This problem stems from the fact that paper satellites which have completed the coordination process are listed in the MIFR just as if they were fully operating systems, and their operating parameters and requirements need to be taken into account when coordinating new operating systems. The number of ITU filings that are falsely indicated as being brought into use are never removed from the MIFR.[88] The RB receives between 400-500 requests for new systems each year and yet only around one tenth ever makes it to the launch pad.[89] This not only generates unnecessary work for coordinators and triggers technical problems for genuine networks[90], but it also slows down access on orbit, as allocation becomes more difficult with the number of available slots being artificially decreased.

Conclusions

The economic value of the GSO cannot be ignored, but balancing efficiency and equity is a cumbersome task. ITU’s main obstacles are the lack of enforcement power and its respect towards sovereign States. If the ITU has doubts regarding the bringing into effective use of a satellite, it will send a formal letter to the interested administration asking them to clarify the issue.[91] However, in doing so, it relies only on the good will of the respective Government. It is noteworthy that the ITU does not impose sanctions and cannot exercise any real control over how a member State uses its orbit/spectrum assignment.[92] Therefore, there is no sanction for not bringing a satellite into use, apart for having the registration deleted from the MIFR, if the ITU decides that the State did not follow the provisions of the RR or of the Constitution. However, as it was obvious in the Zohrer case, the ITU will not challenge a sate’s notification, so it would have to base its decision to delete the registration on other grounds than that of art. 11.44 RR.

While cases of paper satellites are handled, precious GSO slots are blocked, prohibiting the access of capable States. Moreover, this practice has shifted from a mere desire to reserve a slot, to a commercial business that does nothing but limit access to wealthy States, only widening the gap between developed and developing nations.

In the absence of any legal punishment, there is no real incentive for the filing States to give up unused orbit resources or update their satellite network parameters at the stage of notification and recording of assignments in the MIFR in order to accurately reflect the intended satellite operations.[93] When the exercise of goodwill is linked to negative financial consequences, enforcing mechanisms based on such goodwill tend to be disregarded.[94]

The only possible solution is for the ITU to develop an allocation procedure that would connect both effective and equitable access, and State’s pursuit of commercial benefits. This is indeed a challenging goal which seems unreachable in the near future. Until that time comes, one can only rely on the good will of States and their desire to cooperate in order to ensure that the GSO is available to all nations, as it is recommended. Hopefully it will be internationally recognized that, on a long term basis, such a practice could only be to the detriment of States, rather than to their benefit.

Bibliography

International Treaties and Other International Instruments:

• Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205
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• Camilo Guzman Gomez, The Equitable Access to the GEO for Developing Countries: A Pending Challenge, IAC-13,E7,3,1,x18622
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[1] See ITU homepage <http://www.itu.int/en/Pages/default.aspx>.

[2] Maria Buzdugan, Recent Challenges Facing the Management of Radio Frequencies and Orbital Resources Used by Satellites, IAC-10-E7.5.3, p. 2.

[3] The geostationary orbit is located approximately 35,786 km above the Earth’s equator, with a radius of 42,164 km. When a satellite is placed into such an orbit, because it revolves at the same rate as the Earth, it appears motionless when regarded from the ground. As a consequence, the transmission from the satellite will always be over the same area. See Michael J. Finch, Limited Space: Allocating the Geostationary Orbit, 7 Nw. J. Int’l L. & Bus. (1986), p. 789.

[4] Martin A. Rothblatt, Satellite Communication and Spectrum Allocation, (1982) 76(1) Am. J. of Int’l. L., p. 56.

[5] Roscoe M. Moore, Business-Driven Negotiations for Satellite System Coordination: Reforming the International Telecommunication Union to Increase Commercially Oriented Negotiations over Scarce Frequency Spectrum, (1999) 65 J. Air L. & Com., p. 56.

[6] The ITU was established in 1865 to facilitate and regulate the interconnection and interoperability of national telegraph networks. Over the years, the Union’s mandate has expanded to cover the invention of voice telephony, the development of radiocommunications, the launch of the first communications satellites, and most recently, the telecommunications-based information age. Along the way, ITU’s structure and activities have evolved and adapted to meet the needs of this changing mandate. At the moment, The ITU membership includes hundreds of private-sector organizations, as well as 193 States. See History of ITU Portal available at <http://www.itu.int/en/history/Pages/DiscoverITUsHistory.aspx>.

[7] See Radiocommunication Sector (ITU-R), available at <http://www.itu.int/ITU-R/index.asp?category=information&rlink=itur-welcome&lang=en>.

[8] The “massive overfilling is due to a number of factors including the realization of the growing economic value of the scarce spectrum and orbital resource“, Scrambling for Space in Space, ITU Plenipotentiary to Tackle ‘Paper Satellite’ Problem, ITU Press Release, 16 September 2002, <http://www.itu.int/newsroom/press_releases/2002/21.html>.

[9] Committee on the Peaceful Uses of Outer Space, Scientific and Technical Subcommittee, Forty-ninth session, Actual situation in the Geostationary Orbit, 6-17 February 2012, A/AC.105/C.1/2012/CRP.25; List of Satellites in Geostationary Orbit, <http://www.satsig.net/sslist.htm>; Paper Satellites: A Puzzle for the Industry, Satellite Today, 10 January 2010, <http://www.satellitetoday.com/telecom/2010/01/01/paper-satellites-a-puzzle-for-the-industry/>.

[10] Paper Tigers: The Scramble for Space Spectrum, ITU PP-02 Newsroom, <https://www.itu.int/newsarchive/pp02/media_information/feature_satellite.html>.

[11] Presentation at the ITU Radiocommunication Bureau Workshop on the Efficient Use of the Spectrum/Orbit Resource, Geneva, 6 May 2009, The International Telecommunication Union <http://groups.itu.int/br-ssd>.

[12] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205.

[13] ITU Radio Regulations, 2012 edition <http://www.itu.int/pub/R-REG-RR-2012>.

[14] There is an opinion that the name paper satellites is not the most appropriate one as the situation of a satellite which is waiting to be allocated a slot is similar to that of a ‘paper satellite’. Paper Satellites: A Puzzle for the Industry, Satellite Today, 10 January 2010, <http://www.satellitetoday.com/telecom/2010/01/01/paper-satellites-a-puzzle-for-the-industry/>.

[15] Art. 44, Constitution of the International Telecommunication Union, entry into force date 1994-07-01, ATS (1994) 28 <http://www.itu.int/dms_pub/itu-s/oth/02/09/S02090000115201PDFE.PDF>; BTS 24 (1996).

[16] The Agreement Relating to the International Telecommunications Satellite Organization, 20 Aug. 1971.23 U.S.T. 3813; T.I.A.S. No.5546 <http://www.islandone.org/Treaties/BH585.html>.

[17] INTELSAT was established in 1964 as the first commercial satellite services provider and it is currently one of the leading satellite services provider worldwide. See INTELSAT, About Us <http://www.intelsat.com/about-us/>.

[18] Setsuko Aoki, Efficient and Equitable Use of Orbit by Satellite Systems:”Paper Satellite” Issues Revisited, IAC-13-E7.3.2, p.2.

[19] Ibid. p.3.

[20] Scrambling for Space in Space, ITU Plenipotentiary to Tackle ‘Paper Satellite’ Problem, ITU Press Release, 16 September 2002, <http://www.itu.int/newsroom/press_releases/2002/21.html>.

[21] See art. 9 ITU Radio Regulations, 2012 edition.

[22] Paper Tigers: The Scramble for Space Spectrum, ITU PP-02 Newsroom.

[23] ITU Radiocommunication Bureau, Circular Letter CR.301 (1 May 2009).

[24] Art. 11.44B RR: “A frequency assignment to a space station in the geostationary-satellite orbit shall be considered as having been brought into use when a space station in the geostationary satellite orbit with the capability of transmitting or receiving that frequency assignment has been deployed and maintained at the notified orbital position for a continuous period of ninety days”. For more information about the procedure of bringing into use, see ITU Radiocommunication Bureau Circular letter CR/343 (17 January 2013).

[25] Setsuko Aoki, Efficient and Equitable Use of Orbit by Satellite Systems:”Paper Satellite” Issues Revisited, p. 7.

[26] Satellite matters, Serving the satellite community: Efficient use of the spectrum/orbit resource <http://www.itu.int/net/newsroom/wrc/2012/features/satellite_matters.aspx>.

[27] Some frequency bands are more popular than others and some have already reached a saturation point. For example, Satcoms started using C-band and then moved on to Ku-band. Ku-band slots are mostly already allocated and are, as a consequence, increasingly rare, especially over the Americas and Africa. Eutelsat has already started using the next available frequency, i.e. the Ka-band. According to industry leaders such as Eutelsat, the satellite sector should have 30 to 50 years of growth ahead. See Paper Satellites: A Puzzle for the Industry, Satellite Today, 10 January 2010, <http://www.satellitetoday.com/telecom/2010/01/01/paper-satellites-a-puzzle-for-the-industry/>.

[28] Amongst the relevant provisions, one can find in these instruments: rules governing frequency spectrum allocation to different categories of radio communication services, the rights and obligations of member administrations to obtain access to the spectrum and orbit resources, international recognition of these rights by recording frequency assignments and, as applicable, orbital positions used or intended to be used in the Master International Frequency Register. See Yvon Henri, “Orbit/Spectrum Allocation Procedures Registration Mechanism”.

[29] Constitution and Convention of the International Telecommunication Union, published in Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 <http://www.itu.int/dms_pub/itu-s/oth/02/09/S020900000C5201PDFE.PDF>.

[30] Article 1, ITU Constitution.

[31] Art. 44, ITU Constitution, Use of the Radio-Frequency Spectrum and of the Geostationary-Satellite and Other Satellite Orbits: “1 Member States shall endeavour to limit the number of frequencies and the spectrum used to the minimum essential to provide in a satisfactory manner the necessary services. To that end, they shall endeavour to apply the latest technical advances as soon as possible. 2 In using frequency bands for radio services, Member States shall bear in mind that radio frequencies and any associated orbits, including the geostationary-satellite orbit, are limited natural resources and that they must be used rationally, efficiently and economically, in conformity with the provisions of the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries“.

[32] The principle was stated in the United Nations (UN) General Assembly (GA) Resolution 1721 (XVI) (1961); US President Dwight D. Eisenhower made a declaration in 1960 that “space is, on conditions of equality, freely available for exploration and use by all in accordance with existing or future international law and agreements.”, Address by President Dwight D. Eisenhower to the U.N. General Assembly, 10th September 1960, 43 DEP’T STATE BULL. 514 (1960).The Principle was further affirmed by the UNCOPUOUS Legal Subcommittee by the unanimous adoption of GA Resolution 1962 (XVIII) (1963).“[…] Arts I–III, have now the status of customary as well as of treaty law”, Lyall, Francis and Larsen, Paul, Space Law: A Treaties, First Edition, (Ashgate Publishing Limited, 2009), page 59.

[33] Cologne Commentary on Space Law, Volume 1, ed. Stephan Hobe, B. Schmidt-Tedd, Kai-Uwe Schrogl, Carl HeymannaVerlag 2009, para. 69.

[34] Yvon Henri, “Orbit/Spectrum Allocation Procedures Registration Mechanism”.

[35] Declaration of the First Meeting of Equatorial Countries (Adopted on December 3,1976) <http://www.jaxa.jp/library/space_law/chapter_2/2-2-1-2_e.html>; Camilo Guzman Gomez, The Equitable Access to the GEO for Developing Countries: A Pending Challenge, IAC-13,E7,3,1,x18622, p.2.

[36] Bin Cheng, Studies in International Space Law, Oxford University Press (2004), p. 567.

[37] Another significant case is that of the Andean Community, which is an international organization similar to the European Union, made up of Bolivia, Colombia, Ecuador and Peru. The ITU gave it an orbital position within the framework of its policy of equal access for developing countries and for equatorial countries. For about ten years, the Community did not succeed in its attempts to create a satellite system. Given the warning issued by the ITU that it risked losing the position, the Community established Decision 654, through which it allowed the commercialization of its orbital position. Thus, in 2010, the Community ceded the use of its slot to a Dutch company, SES World Skies. See Camilo Guzman Gomez, The Equitable Access to the GEO for Developing Countries: A Pending Challenge, p. 4.

[38] Anthony van Fossen, Globalization, Stateless Capitalism, and the International Political Economy of Tonga’s Satellite Venture, 22 Pacific Studies, no.2 (1999), p.2.

[39] Jannet C. Thompson, Space for Rent: the International Telecommunications Union, Space Law and Orbit/Spectrum Leasing, 62 J. Air L. & Commerce (1996), p. 281.

[40] Ibid., p. 281.

[41] Landing rights are permissions that operators must obtain for their satellite to be used in a particular State. See Landing Rights Resurfacing in Europe, Satellite Today, November 1, 2006, <http://www.satellitetoday.com/telecom/2006/11/01/landing-rights-resurfacing-in-europe/>.

[42] Columbia Asks FCC to Deny U.S. Markets to Users of Tonga’s Orbital Slots, Aug. 30, 1993, 1993 WL 2612482.

[43] SATELLITE WK., Nov. 1, 1993, 1993 WL 2610094.

[44] World Radiocommunication Conferences (WRC) are held every three to four years. During these conferences, the ITU Member States review, and, if necessary, revise the Radio Regulations, the international treaty governing the use of the radio-frequency spectrum and the geostationary-satellite and non-geostationary-satellite orbits. These revisions are made on the basis of an ITU Council determined agenda, which takes into account recommendations made by previous WRCs. See Radiocommunication Sector (ITU-R) <http://www.itu.int/ITU-R/index.asp?category=conferences&rlink=wrc&lang=en>.

[45] SATELLITE WK., Mar. 18, 1996, 1996 WL 7054518.

[46] Art. I and II OST.

[47] When Tonga filed for GSO slots with the ITU, the 1982 ITU Convention (Nairobi) was effective, which was superseded by the 1994 ITU Constitution (Kyoto).

[48] See, Jannet C. Thompson, “Space for Rent: the International Telecommunications Union, Space Law and Orbit/Spectrum Leasing”, pp.279-311.

[49] Ibid., p. 297.

[50] Art. 11.44 RR: “The notified date20, 21 of bringing into use of any frequency assignment to a space station of a satellite network shall be not later than seven years following the date of receipt by the Bureau of the relevant complete information under No. 9.1 or 9.2, as appropriate. Any frequency assignment not brought into use within the required period shall be cancelled by the Bureau after having informed the administration at least three months before the expiry of this period.”

[51] BR-IFIC 2698 & BR-IFIC2699 (July 2011).

[52] Setsuko Aoki, Efficient and Equitable Use of Orbit by Satellite Systems:”Paper Satellite” Issues Revisited, p.7.

[53] RRB12-3/13-E (18 March 2013); Francis Lyall, The Radiocommunication Assembly (RA-12) and the World Radio Conference (WRC-12), Geneva, 2012: Progress, IAC-12-E7.5.9, p. 6.

[54] Contradicting information was furnished by various administrations. Iran indicated that Gorizon-38 and another satellite were used 1995- end-2004, followed by the EUROBIRDTM-2 up to 2007 in parallel with BADR-C (Intelsat 5), also known as PAS-5 and Arabsat 2C up to October 2008 and BADR-6 up to May 2009 before BADR-5 was launched. France and the USA denied that EIROBIRDTM-2 and PAS-5 were used through Arabsat leasing their capacity. RRB/10-3/7-E (Rev.1) (29 March 2011).

[55] RR13.6, (RR 11.49)88.

[56] RRB/10-3/7-E (Rev.1) (29 March 2011).

[57] The paragraph describes the procedure that the Bureau must follow whenever it appears from reliable information available that a recorded assignment has not been brought into use, or is no longer in use, or continues to be in use but not in accordance with the notified required characteristics.

[58] WRC-03, Resolution 2 states that the use of frequencies for space telecommunication services does not provide any permanent priority for any individual country and it does not provide any permanent obstacle to the establishment of space systems by other countries (para.1) and that a country needs to take all practicable measures to facilitate the use of new space systems by other countries (para.2).

[59] Setsuko Aoki, Efficient and Equitable Use of Orbit by Satellite Systems:”Paper Satellite” Issues Revisited, p. 9.

[60] Luboš Perek, Actual Situation in the Geostationary Orbit, IAC-12-E7.5.12, p.1.

[61] The United Nations Committee on the Peaceful Uses of Outer Space “was set up by the General Assembly in 1959 (Resolution 1472 (XIV)) to review the scope of international cooperation in peaceful uses of outer space, to devise programmes in this field to be undertaken under United Nations auspices, to encourage continued research and the dissemination of information on outer space matters, and to study legal problems arising from the exploration of outer space”, United Nations Office of Outer Space Affairs <http://www.oosa.unvienna.org/oosa/en/COPUOS/copuos.html>.

[62] The most recent UN instrument that supports this view is the Report of the Legal Subcommittee on its 51st session, held in Vienna on 30 Mar 2012, A/AC.105/1003, para. 82.

[63] Colombia, Indonesia, Ecuador, Congo, Kenya, Uganda and Zaire were signatory States, Brazil being only an observer.

[64] “Segments of [the] geostationary orbit [those over the equator] are part of the territory over which the Equatorial States exercise their national sovereignty“, Bogota Declaration, point B.IV.1.

[65] Jannet C. Thompson, Space for Rent: The International Telecommunications Union, Space Law, and Orbit/Spectrum Leasing, p. 308.

[66] “In spite of the principle established by article 33[…] of the International Telecommunications Convention, of 1973, that in the use of frequency bands for space radiocommunications, the members shall take into account that the frequencies and the orbit for geostationary satellites are limited natural resources that must be used efficiently and economically to allow the equitable access to this orbit and to its frequencies, we can see that both the geostationary orbit and the frequencies have been used in a way that does not allow the equitable access of the developing countries that do not have the technical and financial means that the great powers have“, Bogota Declaration pt. B.IV.1, at 3; See also Ram Jakhu, The Legal Status of the Geostationary Orbit, 7 AA & SL (1982), p. 341.

[67] Bin Cheng, Studies in International Space Law, p. 566.

[68] Report of the Committee on the Peaceful Uses of Outer Space, A/8020 (1970), paras.37 and 53.

[69] Art. 33(2) International Telecommunication Convention (Málaga-Torremolinos, 1973): ”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.” <http://www.itu.int/dms_pub/itu-s/oth/02/09/S020900000A5201PDFE.PDF>.

[70] CPM Report on technical, operational and regulatory/procedural matters to be considered by the 2012 World Radiocommunication conference, (Geneva: ITU, 2011), (The Second Session of the Conference Preparatory Meeting for WRC- 12).

[71] Cologne Commentary on Space Law, Volume 1, para. 36.

[72] Jannet C. Thompson, Space for Rent: the International Telecommunications Union, Space Law and Orbit/Spectrum Leasing, p. 300.

[73] Art. II, OST: “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“.

[74] Milton L. Smith, The Role of the ITU in The Development of Space Law, 13 AA & SL (1992), p. 165.

[75] Jannet C. Thompson, Space for Rent: the International Telecommunications Union, Space Law and Orbit/Spectrum Leasing, p. 306.

[76] Art. 11.44 RR.

[77] Camilo Guzman Gomez, The Equitable Access to the GEO for Developing Countries: A Pending Challenge, p. 3.

[78] Regulation of Global Broadband Satellite Communications, Broadband Series, April 2012, Telecommunication Development Sector, ITU, p. 4.

[79] Rob Frieden, Balancing Equity and Efficiency Issues in the Management of Shared Global Communication Resources, 24 U. Pa. J. Int’l Econ. L. (2003), p. 297.

[80] Scrambling for Space in Space, ITU Plenipotentiary to Tackle ‘Paper Satellite’ Problem.

[81] Jannet C. Thompson, Space for Rent: The International Telecommunications Union, Space Law, and Orbit/Spectrum Leasing, p. 299.

[82] Ibid, p. 301.

[83] Art. 44: “taking into account the special needs of the developing countries and the geographical situation of particular countries“.

[84] Maria Buzdugan, Recent Challenges Facing the Management of Radio Frequencies and Orbital Resources Used by Satellites, p.7.

[85] For example, the FCC in the US, and most other sophisticated licensing regimes, involve “personal” licenses granted to specific entities and license transfer/assignment requires prior FCC consent.

[86] Camilo Guzman Gomez, The Equitable Access to the GEO for Developing Countries: A Pending Challenge, p. 4.

[87] Paper Tigers: The Scramble for Space Spectrum.

[88] Paper Satellites: A Puzzle for the Industry, Satellite Today.

[89] Paper Tigers: The Scramble for Space Spectrum.

[90] Paper Tigers: The Scramble for Space Spectrum; Paper Satellite Contribution to Congestion of the Geostationary Satellite Orbit Spectrum.

[91] Paper Satellites: A Puzzle for the Industry.

[92] Steven A. Levy, Institutional Perspectives on the Allocation of Space Orbital Resources: The ITU, Common User Satellite Systems and Beyond, 16 Case W. Res. J. Int’l L. (1984), p. 186.

[93] Yvon Henri, “Background Paper”, ITU Radiocommunication Bureau Workshop on the Efficient Use of the Spectrum/Orbit Resource (Geneva, 6 May 2009) <http://groups.itu.int/br-ssd>.

[94] Yvon Henri, “Long-Term Efficiency of the Space Regulatory Framework” <http://www.itu.int/ITUR/information/promotion/eflash/2/article6.html> accessed on 24 March 2014.