UPDATE: "Paper Satellites" and the Free Use of Outer Space

By Iulia-Diana Galeriu

Iulia-Diana Galeriu is a Legal and Corporate Analyst at SMBC Aviation Capital, Dublin, Ireland. She has previously been a Legal and Procurement Intern at Star Alliance Services GmbH (2015-2016) and a Legal Intern at International Air Transport Association Geneva (2014-2015). She is an International Institute of Air and Space Law Alumna and holds an 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).

Published April 2018

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1. Abstract

At roughly 36,000 km above the equator lies a resource highly sought after by all States: the geostationary orbit (“GSO”). Declared a natural limited resource, with the characteristic of holding an object in the same position relative to the surface of Earth over the course of a day, it is not surprising that the available GSO satellite slots are approaching saturation. Yet, not all states have a satellite placed in orbit, due to economic, technologic or political constrictions. This impairment of the states in their capability to participate has triggered a speculative phenomenon with the International Telecommunications Union[1] (“ITU”) known as “over-filing.” Over-filing consists of registering unneeded uses of orbit resources and has the effect of foreclosing others, who have near-term needs, from achieving access and enjoying the free use of this space resource. As a consequence of this practice, some states risk being denied the right to use outer space freely, a right which has been generally recognized in international space legislation. To set the framework, the beginning of this article will bring forth the emergence of the “paper satellite” practice, which will be more clearly reflected in section three in the cases of the Tongasat and the Iranian Zohrer-1 and 2 satellites. The nature of the GSO will be discussed in order to demonstrate the application of the principle of "free use of outer space" to the issue in the fourth chapter. The fifth chapter will deal with an analysis of the compatibility of over-filing practices and the free use of outer space principles. The sixth chapter will look into the most recent measures taken by the ITU to address paper satellites and this article ends with personal concluding remarks.

2. Introduction

The orbit spectrum resource is the main source of value for the growing satellite industry.[2] Due to its position in relation to 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 only be realized through the simultaneous exploitation of both the geostationary orbit 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 the deterioration or even loss of signal.[5] This is where 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, satellites can now operate at 2 degrees separation, thus increasing the risk of interference between the two frequencies.[9] The orbital resources of the GSO have become increasingly saturated, almost reaching the value of "prime real estate"[10]. Thus, the scarce nature of the GSO is triggering a race amongst states to obtain a spot in orbit. Due to the ITU’s "first-come, first-served" system of allocation,[11] states that 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 filing in advance blocks the orbital slot without effectively using it, such a practice infringes both the provisions of the Outer Space Treaty[12] (“OST”) and of the ITU Radio Regulations[13] (“RR”). These satellites, which 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]

3. The Issue of Paper Satellites

Radio stations and their transmissions are in the mandate of the ITU.[15] The ITU maintains efficient procedures of coordinating telecommunications with a view to ensure optimal, fair and rational use of the radio frequency spectrum.[16] The development of space technology and the privatization of international governmental organizations such as INMARSAT (1999), INTELSAT (2001) and EUTELSAT (2001) created a competitive environment in the telecommunications business for obtaining orbital slots and associated frequencies in the GSO. If in 1984, 193 satellites were operated in the GSO, according to the United Nations Office for Outer Space Affairs Index of Objects Launched into Outer Space (“OOSA Index”). In 2017, 1098 satellites were being operated in the GSO.[17] The ITU estimated that each year it receives between 400-500 requests for a new network system,[18] and based on the data present in the OOSA Index, the number of requests has been increasing steadily each year. The ITU's "first-come, first served" filing system for frequencies and its international co-ordination procedure[19], “that in case of a very complex system, can take years to complete[20], raised concerns amongst non-space faring states. Thus, these states sought to file in advance for an orbital slot, in order to preserve that slot for its own possible future use, or in order to lease or sell it to another user for economic benefits. Previously, ITU coordination services were offered for free to member states. However, this changed in 1999 in an effort by the ITU to recover some of its costs, and by 2017, coordination fees ranged from hundreds to tens of thousands of euro.[21] It is no surprise that the previous ITU practice created an environment that encouraged states that felt left behind to take advantage of the free procedure, thus leading to the over-filing phenomenon.

After having to deal with cases such as the Tongasat case and the Zohrer 1 and 2 case, the ITU became concerned by the growing number of paper satellites, and in 2009 it officially requested its member states to “remove unused frequency assignments from[22] the Master International Frequency Register[23] (“MIFR”) while also stating its intention to enforce the removal of unused frequency assignments. As a result, 145 satellite networks were removed from the MIFR either by individual states or by the ITU for failure to bring the frequency into use,[24] which amounted to 45% of the investigated satellite networks.[25] It is worth noting that a concrete definition of what amounts to “bringing into use”[26] was only decided upon at the 2012 World Radiocommunication Conference (“WRC”), 17 years after the adoption of the first RR.

With paper satellites creating an artificially congested orbit, the issue of optimizing frequency use and orbital spacing in the GSO became paramount. 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.[27]

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.”[28] 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, the allotment of radio frequencies and the registration of radio-frequency assignments for space services of any associated characteristics of satellites”[29] in order to avoid harmful interference of satellites in the GSO or other orbits.

Judging from the ITU Constitution, more specifically Art. 44,[30] two main principles guiding radio-frequency allocation can be identified as the efficient use of spectrum/frequencies and equitable access to the spectrum/frequencies. The exploration and use of outer space is open to all States without discrimination and on equal basis; an established principle of customary international law that existed even prior to the Outer Space Treaty of 1967.[31] However, in terms of occupation of the GSO, “equitable access to broadcasting satellites services has been internationalized only to a limited extent,[32] as the RR established priority of use of defined radiofrequency spectrum at designated orbital slots based on a “first come - first served” procedure. The RR also established the procedure according to which frequency assignments are coordinated. Should the RR procedures be followed by states in good faith, their application would ensure a safe and uniform orbital distribution of satellites in the GSO.[33] Yet the problem of GSO spectrum allocation has not been completely solved by the RR. 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 imbalance of states’ 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.[34] 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 states, before the developing states will have a chance to send in outer space a satellite of their own, cannot be ignored.[35] 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.

4. 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, some lease them in order to receive economic benefits. The most relevant cases related to this issue are that of the Tongasat satellite operator and the Zohrer-1 and Zohrer-2 satellites.[36]

4.1. The Case of Tonga

The issue of paper satellites was first recognized in 1990 when the Tongan Government filed for 16 GSO positions with the ITU, ultimately acquiring only 6 the following year, without a specific and realistic plan of launching its own satellites.[37] In fact, the Tongan Government had no intent of actually launching satellites into orbit. Instead, Tongasat, a satellite company set up by an American businessman specifically to handle Tonga's satellite positions, proceeded to rent an allotment of slots to Unicorn, a Colorado-based company, and afterwards auctioned off its remaining slots for $2 million per year.[38]

Tonga’s actions led to immediate reactions from other states and satellite operators. INTELSAT claimed that Tongasat's actions amounted to financial speculation in the GSO, which is in breach of the ITU Radio Regulations.[39] Colombia claimed that Tongasat’s practice amounted to laying claim on orbital resources, which is in violation of the fundamental principle of equitable access to orbits and frequencies.[40] What is interesting to observe is that Tonga never denied its plans to lease or sell its slots in the future. Rimsat Ltd., which leased a slot from Tongasat, accused Colombia of acting in an anticompetitive manner.[41] There were even accusations that Indonesia attempted to interfere with the signal of one satellite placed in a leased Tongasat slot, although Indonesia denied such accusations.[42] The issue was raised at the WRC-95.[43] However, the only action taken by the ITU was to approve a plan whereby the ITU staff reviewed the existing procedures and reported on slot allocations by 1997. To this day there are no reports of Tongasat incurring any repercussions for its practices.

In conclusion, Tongasat managed to use the system to its own advantage. Tongasat’s action was not explicitly against the relevant provisions of the RR, but it was widely considered against the spirit of international space law, including the OST[44] and the ITU Convention and Constitution[45]. Thus, this developing state proved that the spirit of the ITU could be circumvented by strictly following the procedures it had set out. Therefore, besides raising the question whether the previous ITU procedures were appropriate for reaching their purpose, the case also raised some debates as to whether such practices violate broader international law.

4.2. 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 the GSO positions in the MIFR. However, the 7-year deadline for bringing the two satellite positions into use was approaching and there was no proof at the ITU that the satellites were ever launched.

Regarding the satellite registered at 34 degrees east, there was reason to believe that no satellite was launched within 7 years from registration in the MIFR.[46] Thus, on July 2011, the Radio Regulations Board (“RRB”) announced to Iran that it had deleted its recording from the MIFR.[47] 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.[48] In 2012, after initially being allowed to keep its position under the condition that the satellite would finally use the position and failing to do so, the Zohrer-1 satellite lost its frequency designation.[49]

The Zoher-2 situation was slightly more complex. Iran notified the RRB that the assigned frequency had been brought into use. However, the RRB had no proof that Zohrer-2 physically existed. On the contrary, it had reasons to believe that the frequency at 26 degrees east had been used by a series of different satellites giving the impression that the registered slot is being used by the Zoher-2 satellite. France, second in line for slot allocation, argued that Iran had lost the spot due to the failure of bringing the orbit into use at all.[50] When the RRB was asked to address the problem, it chose not to go into the issue of leasing, as "huge commercial interests"[51] had to be respected.[52] Having a similar approach to the issue as the case of Zoher-1, the RRB decided not to contest the statement of a sovereign state and decided to allow the Zohrer-2 satellite network to be retained in the MIFR. However, the RRB requested the coordination of Ka- and Ku-bands among Iran, France and Saudi Arabia in conformity with Art. 44 of the ITU constitution and WRC-03 Resolution 2[53], 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 coordinated between Iran and Saudi Arabia.[54] In total, the position at 26 degrees east was blocked for a total of 7 years.

5. The Nature of the Geostationary Orbit and the Free Use of Outer Space

With characteristics that allow a state that places a satellite in its orbit to broadcast to almost a third of the planet or just over its territory without seeming to move its position, the GSO is the most used orbit in outer space. However, there was initially a long debate in the United Nations Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”)[55] whether the GSO is part of outer space at all. The debate was concluded in 2000, when the Czech delegation presented a working paper in which the GSO was considered a part of outer space, an opinion which was endorsed by UNCOPUOS.[56] The reason why it is important to recognize the GSO as part of outer space is it would make all provisions of the space treaties which refer to the rights and obligations of member states towards the outer space and celestial bodies applicable.

The issue surrounding the nature of the GSO became more evident with the Bogota Declaration in 1976 when equatorial states[57] raised sovereignty claims over the portions of the GSO over their territories.[58] Such a bold statement raised great opposition by the international community and, in the end, the overwhelming rejection of the declaration confirmed the principle of non-appropriation of space resources, including the GSO. 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 of the declaration truly wanted to claim property rights over the GSO or “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”.[59]

From a factual perspective, the number of satellites that the GSO can accommodate is clearly limited. In addition to that, “some slots are more advantageous than others for technical, commercial or other reasons.”[60] Thus, the GSO was declared by UNCOPUOS as "a limited natural resource."[61] This principle was also recognized in the ITU Convention.[62] 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, conform 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”. When commercial interests are combined with a slow ITU process and a lack of sanctions for breaching ITU provisions, states are only encouraged to abuse these rules.

Art. 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.[63] Activities such as launching and using satellites can clearly have a commercial nature, yet, it is stated that access does not imply ownership of a position or segment of the orbit, but only “admittance”[64] to it. Therefore, with regards to satellite usage, the principle of non-appropriation as described in Art. II of the OST[65] 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"[66], as generally, appropriation of a resource by one state will tend to benefit only the state in question and restrict access by other states, which is contrary to the provisions of the OST. Thus, the only natural conclusion that can stem from the application of the OST is that, similar to other space resources, the orbit/spectrum in the GSO is not subject to appropriation, but should be used freely and equitably. However, it is highly questionable whether the practice of over-filing meets this requirement.

6. Consequences of the Over-Filing Practice

When a slot is artificially reserved by a state and the position becomes 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, 'time' is of the essence. The aspect of time with regard to the use of satellites has a three-folded effect. First, if a state has acquired a slot, it can retain it for 7 years without bringing it into use. Second, the lengthy coordination procedure encourages developing states to bypass the system and lease or sell the already allocated orbital spot that was granted to developing states under Art. 44 of the ITU constitution. Third, there is no provision in the ITU instruments that requires a state to return an orbital position after the end of the operating life of the satellite.

Under the RR[67], a satellite frequency registered in the MIFR must be brought into use within 7 years before the frequency assignment is cancelled by the RRB. Therefore, in the case of a paper satellite, an unused frequency could remain blocked for 7 years. Similar to the Zohrer satellite cases, if a state informs the ITU that a satellite has been launched in the registered position, the ITU will not question this 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 finally 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 was the case of 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 but not operated by other states. Between the contracting parties, it would be a win-win situation, as the space faring state gets the opportunity to benefit from its technology quickly, while the developing state can argue that the position was brought into use.

The final time related aspect is the fact that there is “no time limit[68] during which a satellite can occupy a GSO slot after receiving authorization from the ITU. The average life span of a satellite is around 15 years[69], but as there is no binding obligation for States to return the slot, the GSO becomes artificially congested, making it harder to allocate and coordinate orbital positions in the future, even though some satellites do not even exist in their registered position. Such a behavior is inequitable towards states that apply for orbital slots in good faith, 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, and also the sound development of radio communications. Therefore, the filing of a paper satellite can block the potential use of an orbital slot by a state which has the need and the means to bring a frequency into use, and also complicate the coordination procedure between satellites that might or might not exist in orbit.[70] This issue seems to arise mainly from ITU procedure. However, it has been stated that it is difficult to balance considerations of economy and efficiency with those of equity.[71]

Another aspect that is inconsistent with free and equitable access is the leasing of orbit resources. Although the ITU is aware of this practice and does not explicitly endorse it, it acknowledges it as common practice between states in order to ensure usage. According to the 2015 chairman of the ITU, when engaging in leasing activities, states must make sure to follow the provisions of Art. 18.1[72] of the RR, which address the right to use a satellite licensed by another state.[73] However, leasing slots to the highest bidder, as was the case of Tonga, favors the technologically advanced, wealthy states.[74] In such a market, only already developed states can afford to subscribe, while developing states are left out. One might argue that developing states enjoy under Art. 44 of the ITU Constitution[75] 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 slot leasing is that such a practice, which would work according to the basic market principles of supply and demand, would only raise the prices for placing satellites in orbit, affecting free access to such positions even more. 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 positions.

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.[76] This problem stems from the fact that paper satellites which have completed the coordination process are listed in the MIFR as if they are fully operating systems, and “their operating parameters and requirements need to be taken into account when coordinating new real-life systems[77]. The ITU filings that are falsely indicated as being brought into use would only be removed from the MIFR if the ITU actively investigates the filing and reaches the conclusion that the frequency was never brought into use. Such investigations only take place if a member state brings a paper satellite to the attention of the RRB under RR Art. 13.6.[78] The RRB receives between 400-500 requests for new systems each year and yet only around one-tenth ever make it to the launch pad.[79] This not only generates unnecessary work for coordinators,[80] but it also slows down access to orbits, as allocation becomes more difficult with the number of available slots being artificially decreased.

7. Measures Taken by the ITU

One measure that the ITU took which attempted, among others, to prevent unrealistic filings was the introduction of a cost recovery system for coordination services. The procedure was established with the enactment of ITU Council Decision 482 on the Implementation of Cost Recovery for Satellite Network Filing (“Decision”) in 1999. The decision set out cost recovery principles and fees for satellite network filings as well as a penalty for non-payment. Therefore, all new coordination requests have to be accompanied by a service fee, and a failure to pay the necessary fee within 6 months from the issued invoice is met with a cancellation of the MIFR publication. The introduction of such fees could have a deterring effect, as it would set a price on the “reservation” of an orbital slot that might never be used – but it did not stand in the way of states such as Tonga, Iran and probably other states that sought to sell the slot to other users, rather than focus on expanding its own telecommunications capabilities. Thus, the introduction of the coordination fee might have influenced some states to second guess their decisions, but it was in no way a definitive solution to the issue of over-filing.

The continually pressing issue of paper satellites did not fall on deaf ears with the ITU and in 2015, during WRC-15, Resolution 49 on Administrative Due Diligence Applicable to Some Satellite Radio Communication Services[81] (“Resolution 49”) was enacted. In Annex 1, the resolution sets out a due diligence procedure that requires a State applying for a frequency slot subject to coordination to submit to the RRB, as soon as possible but not later than the deadline for bringing the frequency into use, specific information certified by an administration official. The requested information is specifically detailed in Annex 2 to the resolution and can be separated into 3 main categories: information on the identity of the satellite network, information on the spacecraft manufacturer and information on the launch services provider. A failure to submit the complete identification information before the deadline will lead to the deletion of the MIFR recording. Although it will likely take several years to assess whether the new ITU procedure will improve the current over-filing issue, Resolution 49 has the potential to reduce the number of paper satellites and to decongest the MIFR. Resolution 49 requests very specific information regarding the satellite that is to be launched into orbit, including information regarding various contract execution deadlines. Furthermore, any information provided to the RRB must be signed by an authorized official of the notifying administration representing the state, which reduces the likelihood of the information being inaccurate or false. Should any concerns arise during the due diligence process, the RRB is entitled to request further information from the state. Overall, including any requests for clarifications, the entire due diligence process should take no longer than 7 years from the MIFR notification, which means that a frequency can still be blocked in bad faith by a state for that period of time. However, in contrast to the previous procedure, the failure to complete the due diligence process leads to the deletion of the MIFR recoding, which means that an unsuccessful application will not artificially congest the MIFR and affect future spectrum coordination. Finally, Resolution 49 is meant to be applied retroactively, starting from 22 November 1997, and it will be interesting to see how states will cooperate with the RRB on submitting information that is 20 years old. However, should the process run smoothly, the RRB should be able to clear the MIFR of any unused orbital frequencies, which would result in a more accurate depiction of the status of the GSO usage and open up new opportunities for developing states.

8. Conclusion

The economic value of the GSO cannot be ignored, but balancing efficiency and equity is a cumbersome task. The 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 state of interest asking it to clarify the issue.[82] However, in doing so, it relies only on the good will of the respective government for receiving a transparent answer. It is noteworthy that the ITU cannot exercise any real control over how a member state uses its orbit/spectrum assignment.[83] As it was obvious in the Zohrer cases, the ITU will not challenge a state's notification of bringing a frequency into use, even if it has grounds to believe the case to be different and, therefore, would have to base its decision to delete the registration on other grounds than that of Art. 11.44B RR.

While cases of paper satellites are handled, precious GSO slots are blocked, prohibiting access by capable states. Moreover, this practice has shifted from a mere desire to reserve a slot to a commercial business that makes the GSO accessible only to wealthy states, only widening the gap between developed and developing nations. ITU’s acknowledgement of the spreading practice of slot leasing may even lead to the formation of a precedent which will further encourage the development of this secondary market.

The ITU seems to have placed its feet in two boats in an attempt to satisfy both the principles of space law and the current economic needs of states. On the one hand, it has significantly improved its method of filtering out potential paper satellites, even if the procedure itself heavily relies on the good will and cooperation of states. On the other hand, it seems to be tacitly agreeing to some level of economic speculation, to the extent that it does not stray too far from the rules of the RR. The issue of overfilling cannot be definitively settled without taking a clear position on what is the appropriate way forward. There is no doubt that the newly implemented due diligence procedure will better serve the purpose and the spirit of the ITU legislation; however, recent trends point towards an increasing interest in outer space commercialization.[84] Could this be a viable option for the GSO? Would it increase transparency of the real use of the GSO spectrum and frequencies and stimulate competition and technological development, or will it open the gates to a monopoly over the GSO resources by a hand full of well-established space-faring states? Can a balance between the two approaches even be reached? These questions have yet to be answered. For the moment, the principles of free use of outer space and non-appropriation of space resources prevail and in the end, the solution, whichever that may be, will ultimately hinge on the extent of cooperation and the ultimate needs of states.

9. Bibliography

International Treaties and Other International Instruments:

ITU Instruments:


Journal Articles:

IISL Papers:

Newspaper and Other Media:

[1] The ITU is a United Nations specialized agency for information and communications technologies that allocates global radio spectrum and satellite orbits and develops the technical standards which ensure that networks and technologies seamlessly interconnect. See https://www.itu.int/en/about/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.

[9] Sharing the Sky – ITU’s Role in Managing Satellite and Orbit Spectrum Resources, ITU Plenipotentiary 2014, Busan, Korea. A Puzzle for the Industry, Satellite Today, 10 January 2010.

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

[11] It was acknowledged in the Final Acts of the 2012 World Radiocommunication Conference that the “first come first served” rule can restrict access to certain orbit positions. See RES553 (WRC-12), p. 304, ITU Final Acts WRC-12 (Geneva, 2012).

[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.

[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.

[15] See ITU Website, About International Telecommunication Union.

[16] Art. 44, Constitution of the International Telecommunication Union, entry into force date 1994-07-01, ATS (1994) 28; BTS 24 (1996).

[17] United Nations Office for Outer Space Affairs, Online Index of Objects Launched into Outer Space.

[18] Scrambling for Space in Space, ITU Plenipotentiary to Tackle ‘Paper Satellite’ Problem, ITU Press Release, 16 September 2002.

[19] See art. 9 ITU Radio Regulations, 2016 edition.

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

[21] ITU Council Decision 482, Implementation of Cost Recovery for Satellite Network Filings, Document C99/94-E, 22 June 1999, as modified by C2001, C2002, C2004, C2005, C2008, C2012, C2013 and C2017.

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

[23] “The Master International Frequency Register (MIFR) or the Master Register contains frequency assignments together with their particulars as notified to the ITU in accordance with Article 11 of the Radio Regulations (RR)”. See https://www.itu.int/en/ITU-R/terrestrial/broadcast/Pages/MIFR.aspx.

[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] Satellite matters, Serving the satellite community: Efficient use of the spectrum/orbit resource.

[26] RR Art. 11.44B: “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 90 days.”

[27] Amongst the relevant provisions, one can find in these instruments: rules governing “frequency spectrum allocation to various radio communication services: rights and obligations of Member administrations in obtaining access to the spectrum and orbit resources; international recognition of these rights by recording frequency assignments and orbital positions (used or intended to be used) in the ITU Master International Frequency Register”. See Space Procedures, ITU News Magazine (2009).

[28] Constitution and Convention of the International Telecommunication Union, published in Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992.

[29] Article 1, ITU Constitution.

[30] 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".

[31] 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.

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

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

[34] Declaration of the First Meeting of Equatorial Countries (Adopted on December 3,1976); Camilo Guzman Gomez, The Equitable Access to the GEO for Developing Countries: A Pending Challenge, IAC-13,E7,3,1,x18622, p.2.

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

[36] Another significant case is that of the Andean Community, which is group of South American countries comprised of of Bolivia, Colombia, Ecuador and Peru. The ITU allocated 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 the Dutch company, SES World Skies. See Camilo Guzman Gomez, The Equitable Access to the GEO for Developing Countries: A Pending Challenge, p. 4.

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

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

[39] Ibid., p. 281.

[40] ITU Radio Regulations, 2016 edition, Preamble 0.3, Article 4.8. See http://search.itu.int/history/HistoryDigitalCollectionDocLibrary/1.43.48.en.101.pdf.

[41] Jannet C. Thompson, Space for Rent: The International Telecommunications Union, Space Law and Orbit/Spectrum Leasing, 62 J. Air L. & Commerce (1996), p. 282; SATELLITE WK., Nov. 1, 1993, 1993 WL 2610094.

[42] Tonga in Space.

[43] 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).

[44] Art. I and II OST.

[45] 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).

[46] 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.”

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

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

[49] 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.

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

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

[52] Setsuko Aoki, Efficient and Equitable Use of Orbit by Satellite Systems: “Paper Satellite” Issues Revisited, IAC-13-E7.3.2, p. 9.

[53] 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)”. See Aoki, p. 9

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

[55] 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.

[56] 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.

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

[58] "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.

[59] Space for rent p.307. "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.

[60] Collected Courses of The Hague Academy of International Law, Sijthoff & Noordhoff, Vol. 1(1979), p.262.

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

[62] 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.”

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

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

[65] 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".

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

[67] Art. 11.44 RR (2016).

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

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

[70] It has been recognized by the ITU that, although the practice of overfilling is “completely economically rational”, it blocks access to spectrum and orbital resources[70]and wastes unused portions of the orbit. See Scrambling for Space in Space, ITU Plenipotentiary to Tackle ‘Paper Satellite’ Problem.

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

[72] RR Art. 18.1

[73] Radio Regulations for smart use of radio spectrum, ITU News (2015).

[74] Ibid, p. 301.

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

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

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

[78] RR. Art. 13.6 “[…]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 as specified in Appendix 4, the Bureau shall consult the notifying administration and request clarification as to whether the assignment was brought into use in accordance with the notified characteristics or continues to be in use in accordance with the notified characteristics. […]”.

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

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

[81] Resolution 49 (REV.WRC-15) Administrative due diligence applicable to some satellite radiocommunication services.

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

[83] 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.

[84] Space Mining Law Passes In Luxembourg, Planetary Resources, 13 July 2017 ; FAA-AST Awards Virgin Galactic Operator License For SpaceShipTwo, Virgin Galactic, 01 August 2016.