Regulatory Review: Equitable Access To Space–While Supplies Last
by Gerry Oberst
In 1976, a group of equatorial countries met in Bogota, Colombia, to issue a declaration claiming sovereignty over the geostationary orbit above their national territories. Although the world community had to debate the declaration during ITU world radio conferences in the 1980s, it was not taken seriously.
Now, however, Colombia has taken another step to seek “equitable access” to the geostationary orbit. Based on a resolution adopted at the last radio conference and the obvious failure of the ITU’s procedures to keep up with the flood of “paper satellite” filings, Colombia’s 2002 submitted proposals raise new questions about the way that access to geostationary orbit is internationally regulated.
Resolution 80, revised at the 2000 World Radio Conference, deals with due diligence in applying the principles of the ITU Constitution. After reciting a list of problems with the current system for registering satellite orbits and associated frequencies, the resolution instructs various ITU agencies to consider possible recommendations concerning the principles of the ITU Constitution and radio regulations on the use of orbits and spectrum.
Those principles, as a starting point, state that ITU member countries should bear in mind that geostationary orbits are limited natural resources. They also proclaim that countries should have “equitable access, taking into account the special needs of the developing countries and the geographical situation of particular countries.” These phrases were adopted as early as 1982 at an ITU Plenipotentiary Conference, although references to equitable access began in the early 1970s. They are, of course, undefined and vague, and debate has never ceased about what they mean for orbital slots.
Colombia’s proposals start from the valid need to eliminate speculative applications at the ITU and help solve the congestion in the processing of these applications, as well as dealing with the principle of equitable access. But most of Colombia’s proposals have the same chances as a snowball in Bogota of being adopted by the international community.
The proposals include the principle that priority in filings should be granted to a country that has no satellite networks registered, that the ITU should refuse new requests from countries that have allowed national companies to operate in non-conformity with ITU rules, and filings should be “rotated,” so that a country that files an application that is subsequently cancelled can no longer file for that same slot. Another suggestion is that the ITU should refuse to process new applications from a country that delays the coordination process without justification.
Already some cautiously diplomatic responses have flowed into the ITU, recognizing that there remains a need to fix the ITU procedures, and noting Colombia’s proposals “with considerable interest and concern.” There is a general call for more detail on some of the proposals and the thought that it would be useful to develop “further dialogue” on some of the issues raised.
One of the greatest concerns seems to be about the concept of “priority processing” that might allow an application by one country to bypass all the other satellite network applications in the coordination process. At least one comment from other ITU countries noted that this would introduce arbitrary and unknown constraints in the planning of all satellite networks, which would ruin the chances of financing satellite projects until after they had successfully navigated through the entire ITU process.
Aside from being impractical, any such priority could violate other international agreements, such as the 1967 Outer Space Treaty, which states the use of outer space must be without discrimination and on the basis of equality.
As for the suggestion that the ITU should refuse to process applications from countries that have delayed the coordination process without good reason, the question has been asked how the ITU could judge such a situation. Sovereign countries are unlikely to agree to the ITU having such a legal power over their national regulatory activities. (For an historical note, Colombia refused to coordinate a satellite in the early 1980s based on its claims to equatorial sovereignty, so the United States ignored the country and launched anyway in 1983.)
Should something be done? Clearly yes, because the paper satellites and speculative filings continue unabated. A recent ITU report showed that as of December 2001, the backlog in processing satellite coordination had soared to an unprecedented 1,409 filings, with a delay of very close to three years.
A specialized ITU Radiocommunication Advisory Group was to meet in Geneva at the end of February 2002, as we went to press, to consider these issues. Another specialized group of experts, the Satellite Backlog Action Group (with the horrible acronym “Satbag”) is also examining possible fixes. Those fixes suggested by Colombia probably are not in the category of possibility, but the issues will continue to roll forward.
Gerry Oberst is a partner in the Brussels office of the Hogan & Hartson law firm. His email address is firstname.lastname@example.org.