Proceedings of the Workshop - United Nations Office for Outer ...

ST/SPACE/2Office for Outer Space AffairsUnited Nations Office at ViennaProceedings of the Workshopon Space Law in theTwenty-first CenturyOrganized by theInternational Institute of Space Lawwith theUnited Nations Office for Outer Space AffairsUNITED NATIONSNew York, 2000

This document has not been formally edited.

IntroductionThe Workshop on Space Law in the 21st Century, coordinated by the International Institute ofSpace Law (IISL), was held between 20 and 23 July 1999 in Vienna, Austria, as part o f the ThirdUnited Nations Conference on the Exploration and Peaceful Uses o f Outer Space (UNISPACEIII). More than 120 participants attended the Workshop, all contributing to an active discussionon the future o f Space Law.The IISL Workshop comprised eight sessions, covering current concerns in the field o f spacelaw. Each session began with the presentation of a discussion paper by an invited speaker,followed by invited papers commenting on the discussion paper, as well as informal discussionand comments. At the end of each session, the Coordinator/Rapporteur o f the session presenteda summary report on significant issues raised in the session and, following a general discussion,the findings, conclusions and recommendations of the session were consolidated in a singledocument.At the conclusion o f the eight substantive sessions, the “Workshop Executive Committee”,consisting of the chairperson of each session, the Workshop Coordinator, and the President o f theInternational Institute o f Space Law, who was the overall chairperson of the Workshop, met todiscuss the reports of the sessions. The session reports were integrated into the Workshop’s FinalReport to the UNISPACE III Conference. The Report o f the Workshop was discussed activelyand in great detail in Committee I o f the UNI SPACE III Conference. Reflecting the importanceattached to the Workshop by the participants of UNISPACE III, government delegations adoptedseveral o f its proposals as part of the UNI SPACE III Report, which sets the international agendafor space law and policy in the coming decades.This publication contains the discussion papers o f each session, selected papers presented atthe Workshop, the summary reports of each session and the final report of the Workshop, as wellas the section of the UNISPACE III Report addressing “International Space Law”.I would like to take this opportunity to express special thanks to Dr. Stephen E. Doyle o f IISLfor his outstanding support in organizing and managing the Workshop as its Coordinator. Theinvaluable assistance of Ms. Masami Onoda of the Office for Outer Space Affairs as AssistantCoordinator is gratefully acknowledged. Thanks are also due to Jochen Elsen, Anna Wigler, AlexHantosi and Ramu Katkuri, who provided assistance to the Workshop and in particular to CharlesDavies for compiling and formatting this publication. Finally, the IISL is grateful to all participantsfor making the Workshop a success, and whose knowledge and vision provided new perspectiveso f Space Law for consideration in the early decades of the Twenty-first Century.September 1999,N. Jasentuliyana,President,International Institute of Space Law

Table of ContentsPageI. CONCLUSIONS AND PROPOSALS OF THE WORKSHOP ON SPACELAW IN THE TWENTY-FIRST CENTURY, ORGANIZED BYTHE INTERNATIONAL INSTITUTE OF SPACE LAW 1II.REPORT OF THE THIRD UNITED NATIONS CONFERENCE ONTHE EXPLORATION AND PEACEFUL USES OF OUTERSPACE: Section on “International Space Law” (II. V. H. 2) ......................................... 5III. EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS(SESSION 1 ) .................................................................................................. 91. Discussion Paper by Vladimir Kopal ............................................................................. 112. Commentary Paper by F. G. von der Dunk .................................................................. 193. Commentary Paper by S. B h a tt.......................................................................................234. Commentary Paper by Eilene G allow ay.........................................................................245. Commentary Paper by Eduardo Gaggero, Alicia Lausarot and Marta Gaggero . . . 286. Commentary Paper by Yury K olosov............................................................................. 307. Summary R ep o rt................................................................................................................32IV. EXPANDING GLOBAL LAUNCH SERVICES(SESSION 2 ) 331. Discussion Paper by H. Peter van F en em a.................................................................... 352. Commentary Paper by Catherine B au d in .......................................................................473. Commentary Paper by John B. G a n tt............................................................................. 504. Commentary Paper by Jose Monserrat Filho ................................................................555. Commentary Paper by Armel Kerrest ........................................................................... 576. Summary R ep o rt.................................................................................................. ......... 58

CONCLUSIONS AND PROPOSALS OF THEWORKSHOP ON SPACE LAW IN THE TWENTY-FIRSTCENTURY, ORGANIZED BY THEINTERNATIONAL INSTITUTE OF SPACE LAWI. Introduction1. The Workshop on Space Law in the TwentyfirstCentury, organized by the InternationalInstitute of Space Law, noted that the Treaty onPrinciples Governing the Activities of States on theExploration and use of Outer Space, including theMoon and Other Celestial Bodies, (GeneralAssembly resolution 2222 (XXI), annex, of 19December 1966) and other internationalinstruments built upon it had been successful inanswering the challenge to create a legalframework for exploration and peaceful uses ofouter space and had thereby preserved the spaceenvironment for the benefit of humankind.However, the present significant changes in spaceactivities had given rise to a need for furtherdeveloping that framework, while protecting whatthe international community had gained.2. The Workshop also noted that the LegalSubcommittee of the Committee on the PeacefulUses of Outer Space, as a vehicle for law-makingwithin the United Nations, was currently in aunique position to take up issues related to spacelaw in an exploratory way. Those issues could bedealt with by the Legal Subcommittee in a flexiblemanner, subject to decision by the Committee andthe General Assembly on the sequence in whichthey should be included in the agenda of theSubcommittee.3. The Workshop proposed the recommendationslisted below.II. Conclusions and proposals4. The rapid expansion of private activities in andrelated to outer space requires examination ofmany aspects of existing space law, in particular:(a) With respect to space applicationservices, which give rise to responsibility, liabilityand jurisdiction issues not currently covered byspace law;(b) The impact of commercialization andprivatization of space activities on the publicservice aspects of such services;(c) Intellectual property rights andtechnology transfer issues that may require specialtreatment for global uniformity in practice;(d) The protection of investors’ rights asregards space objects and space artefacts, whichmay require totally new approaches in order for itto be effective and enforceable;(e) The nationality of spacecraft;(f) The protection of the environment,where private entities are currently not held directlyaccountable.It is recommended that a new paragraph 319 bis beadded to the draft report of the Third UnitedNations Conference on the Exploration andPeaceful Uses of Outer Space (A/CONF. 184/3 andCorr. 1 and 2) as follows:“319 bis. Member States of the United

2Nations should initiate discussion of andseek solutions to emerging legal problemsof relevance and should, in particularrecognize the need to consider theexpanding role of private enterprise whenmaking new laws. With regard to theprotection of the environment, theestablishment of launch standards andenvironmental impact assessments shouldbe examined. Specialized agencies shouldconsider drafting standards andrecommended practices as well as modelsfor partnerships involving public andprivate enterprises in their respectivesectors of space activity. The concept of‘public service’ and its variousmanifestations should be developedfurther, paying particular attention to theglobal public interest and to the needs ofdeveloping countries. The principles offair trade should be strengthened.Attention should also be paid to thevarious aspects of the issues of liabilityand security of ownership in order toarrive at a coherent global framework. Theinternational organizations concernedshould make arrangements for effectiveand focused joint forums.”5. As the use of outer space expands, it has beenproven that many of the resources (orbits,frequencies, access to ground infrastructure, etc.)have turned out to be no longer unlimited.Consequently, such resources should be dealt withby means of coherent frameworks for globalresource management. The global public interest inthis field can be safeguarded primarily by publicinstitutions. There is currently a need forcoordination in this area. It is recommended that anew paragraph 319 ter be added to the draft reportas follows:conflicts, the natural limits, the values, thecosts and the growing privatization ofspace activities. Internationalorganizations involved in space activitiesshould seek coordination at an early stage.There is a need to have at least a code ofconduct concerning space debris. To thisend, previous work in this area should betaken into account with a view toidentifying possible models. The LegalSubcommittee of the Committee on thePeaceful Uses of Outer Space, togetherwith its Scientific and TechnicalSubcommittee, should discuss the topicwithout delay. The development of a legalregime for low-Earth orbits (LEOs) shouldbe considered, taking into account recentchanges in the ITU convention concerningthe status of LEOs as limited naturalresources. The issue of security ofownership regarding spacecraft should beaddressed promptly, for example, bymeans of an international inventory linkedto the Register of space objects maintainedby the Secretary-General of the UnitedNations. The General Assembly shouldencourage Member States to adhere to theConvention on Registration of ObjectsLaunched into Outer Space (Assemblyresolution 3235 (XXIX), annex, of12 November 1974). In the context of therole of international organizations, theissue of consumer rights should be dealtwith. The General Assembly, through theCommittee on the Peaceful Uses of OuterSpace and/or through special meetings forthis purpose, should consider soon howbest to coordinate the burgeoning demandson global resources generated byexpanding space activities, bothgovernmental and non-governmental.”“319 ter. Member States of the United 6. The ongoing development of space activitiesNations should consider possible requires the resolution of a growing number ofcoordinating frameworks for space-related issues. Space activities are increasingly beingglobal resource management. This work affected by the expanding body of internationalshould focus on the needs, the potential economic law, which is blurring the boundaries

3between public and private law and generatingmore reliance on recommended standards andpractices. In this environment, it is important tohave appropriate dispute settlement mechanismsfor giving effect to the principles of outer spacelaw in a flexible and timely manner. It isrecommended that a new paragraph 319 quater beadded to the draft report as follows:“319 quater. The General Assemblyshould consider the development ofeffective mechanisms for the settlement ofdisputes arising in relation to spacecommercialization. Those mechanismsshould take into account existingarbitration rules used in internationalpractice for dispute settlement.”7. The expanding growth in areas such ascommercial remote sensing services, commercialcomplexity, the effect on international cooperationand scientific and industrial applications ofservices necessitates consideration of appropriateregulations. National restrictions on access to dataare emerging. It is recommended that a newparagraph 321 bis be added to the draft report asfollows:“321 bis. The Legal Subcommittee of theCommittee on the Peaceful Uses of OuterSpace should initiate the drafting of atreaty covering remote sensing from outerspace on the basis of the PrinciplesRelating to Remote Sensing of the Earthfrom Outer Space (General Assemblyresolution 41/65, annex, of 3 December1986), taking into particular account theexpanding growth in commercial remotesensing services and preserving theprinciple of non-discriminatory access todata.”legal experts will strengthen the relevance of spacelaw. It is recommended that a new paragraph 321ter be added to the draft report as follows:“321 ter. The Legal Subcommittee and theScientific and Technical Subcommitteeshould in general meet at the same time sothat there can be more interactioninvolving the work of those two bodies.”9. One of the most challenging new developmentsin space activities concerns expanding globalnavigation satellite services. It is recommended thata new paragraph 175 bis be added to the draftreport as follows:“175 bis. The recommendations set forthin paragraphs [319 bis, 319 ter, 319quater, 321 bis and 321 ter] below shouldapply, where relevant, to GNSS.”III. Final remark10. The proceedings of the Workshop on SpaceLaw in the Twenty-first Century should be referredto for clarification of the above-mentioned issuesand recommendations.8. Many emerging issues are influenced by rapidadvances in space science and technology. Spacelaw should be based upon a solid foundation ofscientific and technological facts to ensure effectivelegal formulation. Interaction among scientific and

REPORT OF THE THIRD UNITED NATIONS CONFERENCEON THE EXPLORATION AND PEACEFUL USES OF OUTERSPACESection on “International Space Law” (II.V.H.2)(a) Status: international space law1. International space law as developed by theUnited Nations through the Committee on thePeaceful Uses of Outer Space and its LegalSubcommittee reflects the importance that theworld community attaches to internationalcooperation in the exploration and use of outerspace. So far, five treaties and five sets of legalprinciples on matters relating to the explorationand peaceful uses of outer space have beendrawn up through the United Nations, graduallyestablishing a sound legal regime governingspace-related activities.2. The international legal principles in the fivetreaties1have established that the exploration anduse of outer space shall be the province of “allI The five treaties and agreements are the Treaty onPrinciples Governing the Activities of States in theExploration and Use of Outer Space, including theMoon and Other Celestial Bodies (the “Outer SpaceTreaty”), adopted on 19 December 1966, opened forsignature on 27 January 1967, entered into force on 10October 1967, 95 ratifications and 27 signatures; theAgreement on the Rescue of Astronauts, the Return ofAstronauts and the Return of Objects Launched intoOuter Space (the “Rescue Agreement”), adopted on 19December 1967, opened for signature on 22 April 1968,entered into force on 3 December 1968, 85 ratificationsand 26 signatures; the Convention on InternationalLiability for Damage Caused by Space Objects (the“Liability Convention”), adopted on 29 November 1971,opened for signature on 29 March 1972, entered intoforce on 1 September 1972, 80 ratifications and 26signatures; the Convention on Registration of ObjectsLaunched into Outer Space (the “RegistrationConvention”), adopted on 12 November 1974, openedfor signature on 14 January 1975, entered into force on15 September 1976, 40 ratifications and 4 signatures;and the Agreement Governing the Activities of States onthe Moon and Other Celestial Bodies (the “MoonAgreement”), adopted on 5 December 1979, opened forsignature on 18 December 1979, entered into force on11 July 1984, 9 ratifications and 5 signatures.mankind”2, and that outer space, including theMoon and other celestial bodies, is not subject tonational appropriation. These legal principleshave also ensured freedom of exploration. Theyhave also banned the placement of nuclearweapons and any other kinds of weapons of massdestruction in outer space and provided forinternational responsibility of States for nationalactivities in outer space, liability for damagecaused by space objects, the safety and rescue ofspacecraft and astronauts, the prevention ofharmful interference in space activities, theavoidance of harmful contamination of celestialbodies and adverse changes in the Earthenvironment, the notification and registration ofobjects launched into outer space, scientificinvestigation and the exploration of naturalresources in outer space, as well as the settlementof disputes. Each of the treaties lays great stresson the notion that outer space, the activitiescarried out there and whatever benefits mightaccrue from them should be devoted to enhancingthe well-being of all countries and humankind,and each includes elements based on the principleof promoting international cooperation in outerspace activities.3. The five declarations and sets of legalprinciples3 adopted by the General Assembly2 Expression used in article I of the Treaty on PrinciplesGoverning the Activities of States in the Explorationand Use of Outer Space, including the Moon and OtherCelestial Bodies (General Assemblyresolution 2222 (XXI), annex, of 13 December 1966).3 The five declarations and legal principles are theDeclaration of Legal Principles Governing the Activitiesof States in the Exploration and Use of Outer Space,General Assembly resolution 1962 (XVIII) of 13December 1963; the Principles Governing the Use byStates of Artificial Earth Satellites for InternationalDirect Television Broadcasting, resolution 37/92, annex,

6provide for the application of international lawand the promotion of international cooperationand understanding in space activities, thedissemination and exchange of informationthrough transnational direct televisionbroadcasting via satellite and the sharing of dataand information from satellite observations ofEarth’s resources, and general standardsregulating the safe use of nuclear power sourcesnecessary for the exploration and use of outerspace.4. The Committee on the Peaceful Uses of OuterSpace and its Legal Subcommittee are currentlyconsidering the question of the review andpossible revision of the principles relevant to theuse of nuclear power sources in outer space;matters relating to the definition and delimitationof outer space and to the character and utilizationof the geostationary orbit, includingconsideration of ways and means to ensure therational and equitable use of the geostationaryorbit, without prejudice to the role of ITU; and areview of the status of the five international legalinstruments governing outer space. It isimportant to highlight the developments indealing with some of these topics, for examplerelative to the geostationary orbit, in the light ofthe recommendations by UNISPACE 82, thathave been reflected in legal instrumentsdeveloped in other bodies in the United Nationssystem. This is true for ITU with regard to theimplementation of guaranteed equitable access inaccordance with what has been established ininternational conferences and in the constitutionand norms of ITU. It is also true for the progressthat has been made in studying the topics on thebasis of recent proposals and agreements in theCommittee on the Peaceful Uses of Outer Space,in particular on the statement that theof 10 December 1982; the Principles Relating to RemoteSensing of the Earth from Outer Space, resolution41/65, annex, of 3 December 1986; the PrinciplesRelevant to the Use of Nuclear Power Sources in OuterSpace, resolution 47/68 of 14 December 1992; and theDeclaration on International Cooperation in theExploration and Use of Outer Space for the Benefit andin the Interest of All States, Taking into ParticularAccount the Needs of Developing Countries,resolution 51/122, annex, of 13 December 1996.geostationary orbit is an integral part of outerspace.5. Other intergovernmental organizations, inparticular those of the United Nations system, arealso contributing to the legal regime governinginternational cooperative space activities. Amongthem are ITU, WIPO, WMO and theInternational Atomic Energy Agency (IAEA). Inaddition, multilateral and bilateral treaties andagreements have secured the establishment andoperation of international and regional spaceorganizations and bodies, such as ESA theInternational Telecommunications SatelliteOrganization, the Arab Satellite CommunicationsOrganization, the European Organization for theExploitation of Meteorological Satellites(EUMETSAT), Inmarsat and the InternationalOrganization of Space Communications(Intersputnik), and the development ofcooperative programmes, such as the Council onInternational Cooperation in the Study andUtilization of Outer Space, theCOSPAS-SARSAT search and rescue satellitesystem and the International Space Station.Some individual States and groups of States havealso added to the corpus of space law through theadoption of their national laws and agreementswithin the groups governing their activities inouter space and their goals for internationalcooperative ventures.(b) Issues and objectives6. The United Nations has succeeded inprogressively developing and elaborating (inaccordance with Article 13 of the Charter of theUnited Nations), in the form of treaties anddeclarations, a body of principles and normsrelating to space activities which is considered awell-established branch of international lawgoverning space activities. In recent years, theincrease in space activities has given rise to new,highly technical issues such as, inter alia, spacedebris, the use of nuclear power sources in spaceand the protection of intellectual property rights.Those subjects pose many challenging legalquestions that call for creative solutions throughinternational cooperation if international spacelaw is to keep pace with the rapid advances inspace technology and activities. Such solutions

7should be sought on the basis of respect for theprinciples, declarations and resolutions of theUnited Nations General Assembly and taking intoaccount the needs of developing countries.7. Innovations in space technology are alsobringing activities geared towards theexploitation of natural resources in outer spaceand on the various celestial bodies within therealm of feasibility. In view of the apparent lackof international consensus on the principlesembodied in the Moon Agreement, as shown byits relatively low level of ratification, issuesrelating to the ownership of and equitable accessto such resources should require furthersubstantial consideration and study within thefield of international law.8. Since UNISPACE 82 (see paras. 21-27above), the world has witnessed a considerablegrowth in the commercialization andprivatization of space-related activities. Thattrend has led to significant increases in thenumber of non-state actors involved in theexploration and use of outer space, as well as thenumber of different activities in which they areengaged. Satellite telecommunications, satellitenavigation and positioning, the provision oflaunching equipment and services and remotesensing are, in some cases, already developinginto rapidly growing private industries. Similarly,activities such as space tourism, the mining ofasteroids and other celestial bodies and wastedisposal in outer space are being seriouslyconsidered as possibilities for private spaceenterprise in the not too distant future. Theseactivities have given rise to new legal challenges.9. Member States of the United Nations shouldinitiate discussion of and seek solutions toemerging legal problems of relevance and should,in particular, recognize the need to consider theexpanding role of private enterprise when makingnew laws. Specialized agencies should considerdrafting standards and recommended practices aswell as models for partnerships involving publicand private enterprises in their respective sectorsof space activity. The concept of “public service”and its various manifestations should bedeveloped further, paying particular attention tothe global public interest and to the needs ofdeveloping countries. The principles of fair tradeshould be strengthened. Attention should also bepaid to the various aspects of the issues ofliability and security of ownership in order toarrive at a coherent global framework. Theinternational organizations concerned shouldmake arrangements for effective and focusedjoint forums.410. The Committee on the Peaceful Uses ofOuter Space should give attention to variousaspects of space debris. The Committee on thePeaceful Uses of Outer Space should alsoconsider the legal issues regarding low-Earthorbits (LEOs), taking into account recentchanges in the ITU convention concerning thestatus of LEOs as limited natural resources. Theissue of security of ownership regardingspacecraft should be addressed.411. The Member States should consider thedevelopment of effective mechanisms for thesettlement of disputes arising in relation to spacecommercialization. Those mechanisms shouldtake into account existing arbitration rules usedin international practice for dispute settlement.412. A further pressing concern is the fact thatmany States have not yet become parties to theouter space treaties concluded within theframework of the United Nations. Despite annualresolutions by the General Assembly invitingStates to consider ratification or accession to thetreaties, the apparent decline in the willingness ofStates to bind themselves to the terms ofsuccessive treaties5 tends to undermine thenormative authority of the later internationalagreements. The Committee on the Peaceful Usesof Outer Space and its Legal Subcommittee havesolicited the views of States regarding the4 Proposed by the Workshop on Space Law in theTwenty-first Century, organized by the InternationalInstitute of Space Law.5 For example, the 1979 Moon Agreement has beenratified by only 9 States and signed by an additional 5States, as opposed to the Outer Space Treaty of 1967,which has been ratified by 94 States and signed by anadditional 27 States.

8obstacles that impede ratification of the fiveinternational legal instruments governing outerspace 6 and have begun a review of the status ofthose legal instruments with a view to initiatingdiscussion on the situation. The exercise has alsodrawn attention to the fa c t that actual adherencein practice by States to the provisions of thetreaties to which they are parties is less thanoptimal, itself a matter requiring immediateconsideration. In this regard, States are urged toensure that their national legislation conformswith the treaties.13. The role of the Committee on the PeacefulUses of Outer Space and its Legal Subcommitteeas mechanisms for the elaboration of necessaryand appropriate principles and rules regulatingouter space needs to be strengthened in order tomeet the requirements of a rapidly advancingfield of human activity. This might entailconsideration by them of such issues as thosealready suggested by Member States forinclusion in the agenda of the LegalSubcommittee: commercial aspects of spaceactivities (e.g. property rights, insurance andliability); legal aspects of space debris andreview of existing norms of international lawapplicable to it; comparative review of theprinciples of international space law andinternational environmental law; review of theprinciples on direct television broadcasting andremote sensing of Earth, with a view to thepossible transformation of those texts intotreaties; examination of the procedures resultingin the Agreement relating to the implementationof part XI of the United Nations Convention onthe Law of the Sea as a possible model toencourage wider accession to the MoonAgreement; and improvement of the Conventionon Registration of Objects Launched into OuterSpace.7 The agreement reached by the Committeeon the Peaceful Uses of Outer Space at itsforty-second session, in 1999, on new agendastructures for its two subcommittees should makeit possible to enrich considerably the work of theLegal Subcommittee.14. The Committee on the Peaceful Uses ofOuter Space should analyse the desirability ofdrafting new legal instruments relating to variousspace applications, taking into particular accountthe commercial growth of some of theseapplications.415. The Legal Subcommittee and the Scientificand Technical Subcommittee should in generalmeet in such a way that there can be moreinteraction involving the work of those twobodies.416. The Committee on the Peaceful Uses ofOuter Space should also consider legal and otheraspects relevant to GNSS.46 The views received from Member States in that regardcan be found in the note by the Secretariat of 2 March1998 (A/AC. 105/C.2/L.210 and Add.l).These proposals can be found in the report of theLegal Committee on the work of its thirty-seventhsession (A/AC. 105/698), paras. 67-69.

EXISTING UNITED NATIONS TREATIES:STRENGTHS AND NEEDSSESSION 1Chair Dr. Eilene Galloway (United States of America)Coordinator/Rapporteur: Dr. Kai-Uwe Schrogl (Germany)

SESSION ONEExisting United Nations Treaties:Strengths and NeedsDiscussion PaperVladimir KopalUniversity of PilsenCzech RepublicIntroductionThe purpose of this discussion paper is to offer anassessment of the up-to-date space legislationaccomplished within the United Nations and to make abrief outlook for further endeavours to continue in itsdevelopment.1In dealing with the subject of legal issuesof outer space, however, we must bear in mind that thepresent regulation of space activities consists of and isgrowing in two layers of legal norms:The first layer is represented by the internationallaw of outer space that governs activities ofinternational persons, i.e. States and internationalintergovernmental organisations.2 The essential part ofit has been created by the United Nations and thisfoundation of space law should be respected by all. Inaddition to it, a growing number of bilateral andmultilateral treaties of different kind, mostly dealingwith international cooperation and individual projectsthereof, have been concluded between two or more1The opinions expressed in this paper are those of the authorand do not necessarily reflect the views of the United Nationsor other national and international organisations in which he isactive.States and international organizations during recentdecades.Besides the United Nations, other internationalbodies of the United Nations system, such as ITU,UNESCO, FAO, WMO, IMO, WIPO and IAEAparticipate in the development of space law. Valuableis also the active participation of a number oforganisations outside the UN system, in particular thatof the European Space Agency, INTELSAT,INTERSPUTNIK, EUMETSAT, EUTELSAT,INMARSAT and others.The second layer of the legal regulation of spaceactivities has been developing for years by means ofnational laws adopted by individual space-faring States.They govern their own activities as well as activities oftheir nationals, both physical and juridical persons. Therole of national regulations by individual States hasbeen increasing simultaneously with the growinginvolvement of non-governmental entities in differentspace projects. However, national laws, as well as theactivities of private entities performing them under thejurisdiction of individual States, should remain in fullharmony with international obligations arising from theinternational law of outer space which should berespected as the basis of all “space law”.2 Individuals, which are now mostly recognized in theory andpractice as the third category of international law subjects, havenot yet played an active role in the field of international spacelaw. However, this may change in the future.

12 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDSAchievements of the UnitedNations in the establishment ofinternational space law by a seriesof space treatiesLet us first concentrate on the role and achievements ofthe United Nations in the establishment of internationalspace law as a special system within the presentinternational law. Its purpose is to govern all activities,or different categories of such activities, in and relatingto outer space including celestial bodies.It is generally known that the space legislation inthe United Nations has been worked out through theCommittee on the Peaceful Uses of Outer Space(COPUOS), which was established by GeneralAssembly resolution 1348 (XIII) of December 1958,first as an Ad hoc body, and then transformed one yearlater by resolution 1472 (XIV) of 12 December 1959into a permanent organ of the General Assembly.During its existence, the membership of the Committeewas expanded several times and by its present number(61 States) includes approximately one third of thewhole UN membership. Since the early 1960's, theCOPUOS has become the focal point for all spacerelatedcooperative programmes furthered by the UnitedNations. Two subcommittees, one Legal, the otherScientific and Technical, each composed of the sameMember States as the parent body, were created fordetailed consideration of specific proposals andsuggestions concerning scientific, technical and legalproblems submitted by the COPUOS members for thedevelopment of international cooperation in the field ofspace exploration for peaceful purposes. In addition tothe Member States, a number of internationalorganizations, both intergovernmental and nongovernmental,which are dedicated to the developmentof international space cooperation, have been grantedthe status of observers in the Committee and itssubcommittees. In this way, the basis for a meaningfuldiscussion on space issues has been enlarged. Fromamong the specialised organisations of the UN system,the participation of the ITU has proven to be veryvaluable, particularly when discussing the issue ofGeostationary Satellite Orbit. The European SpaceAgency has been one of those actively participatingorganizations, too. Moreover, some non-governmentalorganizations, such as COSPAR, IAF and ILA, havebeen granted the observer status within COPUOS andparticipate regularly in its work.Right in the beginning of the COPUOSdeliberations, an important decision was made whichsince then has characterised its working methods up-tonow:the conclusions to be adopted by the Committeeand both its subcommittees should be subject toagreement without need for voting.3 It should beobserved that the COPUOS thus became the first UNbody which started applying in its proceedings aprinciple that has become later known as rule ofconsensus and expanded in the practice of the UnitedNations and also in other international organizations.The application of this rule has mostly had positiveeffects on the work of the Committee and itssubcommittees, particularly during the first decades oftheir activities. Its extensive interpretation andapplication, however, has also created problems.From the substantive point of view, the COPUOSand its Legal Subcommittee, in which the considerationof legal aspects of space activities has been effectednow for almost four decades, adopted the method of aprogressive elaboration of appropriate space lawinstruments. The rule of law in outer space should thusbe established not by a single, all embracinginternational convention, but step-by-step, by a numberof legal instruments dealing with the most urgentproblems of space activities. Moreover, the initialdiscussions in the Legal Subcommittee led to theconclusion that the first legal basis for space activitiesshould be conceived rather in principles than in detailedrules, in order to reach the necessary agreementrelatively soon. In this way, the founding spacelegislative document of the United Nations emerged asthe 1963 Declaration of Principles Governing theActivities of States in the Exploration and Use of OuterSpace, which was adopted in the form of a UN General3 Cf. the statement of the Chairman of the COPUOS inVerbatim Records of the Ninth Meeting held on 29 March1962, UN Doc. A/AC. 105/PV.93/1962, p.3.

EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS 13Assembly resolution. The same approach was alsomaintained when this Declaration was beingtransformed into a legally binding instrument, theTreaty on Principles Governing the Activities of Statesin the Exploration and Use of Outer Space, Includingthe Moon and Other Celestial Bodies, which wasopened for signature on 27 January 1967 and enteredinto force on 10 October the same year. Needless to saythat the 1967 Outer Space Treaty (OST) became themost important space law instrument of our times,enjoying the widest acceptance by the internationalcommunity from among all the UN space treaties.5 Italso became one of the significant instruments of thecontemporary international law in general, whichcontributed to its progressive development andcodification in the meaning of the UN Charter Article13. It is possible to affirm that its principles have beenrecognized by the international community as a whole,thus forming a part of general international law.Under the scope of this paper, it is not necessary toanalyse this instrument in greater details. Nevertheless,it must be emphasized that the OST included some veryimportant elements which impressed the characteristicfeatures on the whole international space law of ourtimes. Already its leading principle, though its wordinghas been an apparent compromise, spelled out not onlythe main purpose of the international cooperation inspace activities, but also expressed the requirement forthe exploration and use of outer space to be carried outfor the benefit and in the interest of all countries; theseactivities must remain “the province of all mankind”.The Outer Space Treaty also enshrined suchimportant principles as freedom in the exploration anduse of outer space, freedom of scientific investigation inouter space and international cooperation in suchactivities. Furthermore, it is hardly possible tooverestimate the value of the principle of nonappropriationof outer space, including the Moon and4 Cf. resolution 1962(XVIII) adopted by unanimity on 13December 1963. See its text in United Nations Treaties andPrinciples on Outer Space, United Nations, New York,1997/UN Doc. A/AC. 105/572/Rev.2, pp. 37 s.5 See its text in United Nations Treaties and Principles on OuterSpace, pp. 4 s. As of March 1998, 94 States ratified the OSTand moreover, 27 States signed itother celestial bodies, by any means. It must beemphasized that the principle of non-appropriationrelates to outer space as a whole, no exception has beenadmitted, and therefore no part of outer space (or anycelestial body) can be exempted from the impact of thisprinciple.A special significance must be also attached to theprinciples of international responsibility of StatesParties to the Treaty for national space activities,whether such activities are carried out by governmentalagencies or by non-governmental entities, and forassuring that national activities are carried out inconformity with the provisions of the OST. Thisprinciple goes farther than the norms of generalinternational law relating to State responsibility. For bythe declaration of responsibility which relates equally toState and non-State activities, and also by therequirement of authorization and continuing supervisionof the non-governmental entities by the “appropriate”State, the States assumed in fact a direct responsibilitynot only for their own space activities but also for theactivities of their non-governmental entities in outerspace.Moreover, the principle of international liability fordamage of the State that launches or procures thelaunching of a space object and the State from whoseterritory or facility an object is launched for damage toanother State or to its natural or juridical persons bysuch object or its component parts on the Earth, in airspace or in outer space, was established. This was donewithout hesitation and reservations which have usuallycharacterized the process of negotiation on liability fordamage in other legal fields. And the way for theapplication of this principle directly at anintergovernmental level without exhausting the localremedies has been opened.These are but few examples of the major input doneby the OST to the progressive development ofinternational space law. On the other hand, some issueswere crossed over by halfway compromises and someother issues, perhaps more prospective than impendingat that time, have been totally missing in the OST.Thus, e.g., a dual system of space demilitarisation wasestablished. While the Moon and other celestial bodiesshould be used exclusively for peaceful purposes, in

14 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDSouter space per se. only the stationing of nuclearweapons or any kinds of weapons of mass destructionwas banned. At the time of conclusion of OST, thissolution was a significant step forward, but the dangerof an arms race in outer space, as evidenced by the laterdevelopments, has not been fully stopped. Furthermorewhile declaring - and thus undoubtedly legalizing - theexploration and use of outer space, including the Moonand other celestial bodies, as well as the scientificinvestigation thereof, the OST has not contained anyexplicit principle that would be to explore and exploitthe space natural resources. At the time of elaborationof the OST, these problems still seemed to be tooremote or perhaps they were deliberately left aside.Moreover, only some rudimentary elements relating tothe position of international organisations have beenprovided in the OST. And last but not least, no specialsystem of the peaceful settlement of internationaldisputes has been provided under the Treaty regimeexcept for “appropriate international consultations” thatshould be effected in the case of possible interferencesamong the space activities of the States Parties to theOST.The fundamental role of the OST was confirmed bythe fact that some of its principles created bases forfurther steps in the progressive development of outerspace law. Four other UN space treaties wereconcluded during the period following the entry of theOST into force:The Agreement on the Rescue of Astronauts, theReturn of Astronauts and the Return of ObjectsLaunched into Outer Space, which elaborated theprinciples of Article V of the 1967 Outer Space Treaty;it was opened for signature on 22 April 1968 andentered into force on 3 December the same year,The Convention on International Liability forDamages Caused by Space Objects, which elaboratedthe principle of Article VII of the 1967 Outer SpaceTreaty; it was opened for signature on 29 March 1972and entered into force on 1 September 1972;The Convention on Registration of ObjectsLaunched into Outer Space, which elaborated the firstprinciple of Article VIII of the 1967 Outer SpaceTreaty; it was opened for signature on 14 Januaiy 1975and entered into force on 15 September 1976; andThe Agreement Governing the Activities of Stateson the Moon and Other Celestial bodies, which wasbased on the principles of the 1967 Outer Space Treatyrelating to the Moon and other celestial bodies eithergenerally or explicitly; it was opened for signature on18 December 1979 and entered into force on 11 July1984.6This treaty-making process, however, stopped afterthe adoption of the last of these instruments, the 1979Moon Agreement, which has collected so far thesignatures and ratifications of a relatively small numberof States Parties, though it was adopted by the UNGeneral Assembly also by consensus as the other UNspace treaties. The main reason for the hesitation of agreat number of States to adhere to the MoonAgreement seems to be the dissatisfaction with theprovisions of Article 11 of this instrument, which dealswith the legal status of the Moon and its naturalresources that have been declared as “the commonheritage of mankind”. The elaboration of this principledoes not satisfy either the technically advancedindustrial nations, or the developing countries.Yet the solution of this issue as it was adopted in1979 seemed to be an adequate compromise thatenabled the finalization of a lengthy work on thisinstrument. Unlike the legal regime provided for theseabed and ocean floor beyond the limits of nationaljurisdiction in the 1982 United Nations Convention onthe Law of the Sea, the legal regime of the commonheritage of mankind with regard to the Moon and itsresources has been conceived only in general terms,requires only the exploitation of the natural resources ofthe Moon to be governed by the future internationallegal regime and its establishment has been postponeduntil such exploitation is about to become feasible. Inthe equitable sharing in the benefits derived from theMoon resources, which should be ensured for all StatesParties, special consideration should be given “to theinterest and needs of the developing countries, as wellas efforts of those countries which have contributed6 See the texts of these instruments in United Nations Treatiesand Principles on Outer Space, pp. 10 s., 14 s., 23 s. and 28s..

EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS 15either directly or indirectly to the exploration of theMoon”. On the other hand, the exploration and use ofthe Moon remain a right of all States Parties and thefreedom of scientific investigation has been alsopreserved. The States Parties to the Moon Agreementhave the right to collect on and remove from the Moonsamples of its mineral and other substances of theMoon in quantities appropriate for the support of theirmissions. Finally, the future legal régime of the Moonwould not necessarily lead to the establishment of aspecial institutional machinery for its application (as is,e.g., the Seabed Authority provided in the 1982 UNConvention on the Law of the Sea as reformed by the1994 Agreement relating to the Implementation of partXI of the Convention)7 for the 1979 Moon Agreementspeaks only about “appropriate procedures” to beadopted.The lack of support for the Moon Agreement hascreated a difficult problem, because a visible gap nowexists in the up-to-date international legal system ofouter space. The more so, since the provisions of the1979 Agreement relating to the Moon should also applyto other celestial bodies within the solar system, otherthan the Earth, except in so far as specific legal normsenter into force with respect to any of these celestialbodies. This gap now concerns all celestial bodies ofour solar system.Regulation of space activities byUnited Nations principlesThough the elaboration of further UN space treatieswas discontinued after 1979, the work of the COPUOSand its Legal Subcommittee in the progressivedevelopment of the legal regime of outer space was notinterrupted. During the last two decades, UnitedNations sets of principles adopted by the GeneralAssembly became a suitable form for regulating somespecial categories of space activities for which theinternational community has not yet been prepared tonegotiate legally binding instruments. As of now, foursuch sets of principles have been worked out anddeclared by the UN General Assembly in its respectiveresolutions:The Principles Governing the Use by States ofArtificial Earth Satellites for International DirectTelevision Broadcasting, adopted by resolution 37/92on 10 December 1982;The Principles Relating to Remote Sensing of theEarth from Outer Space, adopted by resolution 41/65on 3 December 1986;The Principles Relevant to the Use of NuclearPower Sources in Outer Space, adopted by resolution45/68 on 14 December 1992; andThe Declaration on International Cooperation in theExploration and Use of Outer Space for the Benefit andin the Interest of all States, Taking into ParticularAccount the Needs of Developing Countries, adoptedby resolution 51/122 on 13 December 1996.8It must be admitted that the negotiation on the firstof these sets of principles, lasting for many years, wasnegatively influenced by ideological controversies of thecold war. The vote effected on its adoption was aretreat from the rule of consensus that should governthe decision-making on space matters. But it must bealso recalled that this decision was not made in theCOPUOS or its Legal Subcommittee, but in theGeneral Assembly under its own Rules of Procedure.On the other hand, the 1986 Remote SensingPrinciples seemed to be a successful achievement inwhich a fair compromise between the interests of thesensing States, i.e. States possessing the necessaryspace capabilities, and the needs of the sensed States,including most of the developing countries, was found.The set of NPS Principles has been but a limitedachievement in this category of legislation. Thoughsome innovatory elements were brought into theregulation of this kind of activities (such as the storingof NPS objects in sufficiently high orbits after the7 See these instruments in Division for Ocean Affairs and theLaw of the Sea, Office of Legal Affairs: The Law of the Sea,United Nations, New York, 1997, pp. 7 s. and 214 s..8 See the texts of the UN Principles in United Nations Treatiesand Principles on Outer Space, pp. 39 s.

16 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDSoperational part of their missions, the safety assessmentand notification of reentry), the NPS Principles have toapply, according to the preamble of this document, onlyto “nuclear power sources devoted to the generation ofelectric power on board space objects for nonpropulsivepurposes, which have characteristicsgenerally comparable to those of systems used andmissions performed at the time of the adoption of thePrinciples” Therefore, the Principles are not applicableto the NPS serving other purposes, including nuclearpropulsion for long-distance flights into interplanetaryspace and to the celestial bodies of our solar system.The expected reopening of these Principles, which waspromised to be effected no later than two years aftertheir adoption, has been delayed several times.The final document of this series, the so calledBenefit Principles, mostly reflects the existing practiceof international space cooperation and does not includenew regulatory principles. While all States, particularlythose with relevant space capabilities, should contributeto promoting such cooperation, particular attentionshould be given to the benefit and the interests ofdeveloping countries with incipient space programmes.These sets of principles also recall and elaboratesome of the provisions of the 1967 Outer Space Treaty.However, having been inserted in General Assemblyresolutions, they are not legally binding instruments.Nevertheless, they have also had a certain legalsignificance by establishing a code of conductrecommended by the UN General Assembly andreflecting a legal conviction of the present internationalcommunity relating to these issues.Further possible development ofinternational space law in theUnited NationsIn the evaluation of the achievements of the UnitedNations in the progressive development of internationalspace law all positive elements should be brought to theforeground. They are certainly more numerous than itwas possible to mention in this brief assessment. At thesame time, it is evident that not all impending issuesarising from the actual growth of space activities havebeen resolved thus far, some of them having beenbridged by rather vague compromise provisions or evenleft apart.The attention was already drawn to the principle ofinternational responsibility for national activities inouter space which the States Parties to the 1967 OuterSpace Treaties assumed including their duty of assuringthat all national activities are carried out in conformitywith the provisions set forth in the Treaty. Thisimportant principle, which reflected one of the essentialcompromises opening the door to the final agreement onthe OST, is and should remain valid. However, anumber of questions have arisen in recent years inconnection with the growing volume of space activitiesof private enterprises. They are now engaged in thespace business not only as suppliers of space objects orinstruments to State agencies, but also by launchingtheir own objects and as operators of whole spacesystems. Moreover, the process of privatisation ofsome international space organisations, which thus fa rhave had an intergovernmental character, also raisessome questions relating to this topic. These questionsshould be studied in the light of the present space lawand adequate answers must be provided soon in orderto ensure a sound development of the space commercialbusiness.9For years, many legal experts have been drawingattention to the fa c t that a significant gap exists in the1967 Outer Space Treaty and the other UN spacetreaties due to the lack of a definition of “outer space”,notwithstanding that the UN space documents use theterm “outer space”, “space activities”, “space objects”,etc., and attach to these terms important legalconsequences. One of these is the fundamental9 The item entitled “Commercial aspects of space activities”was suggested and the work plan for its implementation wassubmitted by Argentina during the informal consultations of theCOPUOS Legal Subcommittee on new items for its agenda. Cf.Report of the Legal Subcommittee on the work of its thirtyeighthsession (1-5 March 1999), UN Doc. A/AC.105/721,30March 1999, pp.9 and 15. At the non-governmental level, anexploratory project concerning these issues, which is called“Project 2001 - Legal Framework for the Commercial Use ofOuter Space”, designed by the Institute of Air and Space Lawand Chair o f International Business Law, University ofCologne, Germany, co-sponsored by DLR-German AerospaceCenter, is being developed to be finalized and submitted to aninternational conference on the entire project in 2001.

EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS 17difference between the legal régime of outer space,which is based on the principle of freedom ofexploration and use of outer space (including the Moonand other celestial bodies), and the legal régime ofairspace, the parts of which above the territories ofindividual States are subject to their complete andexclusive sovereignty. Although in practice it hasbecome more or less clear where the area of outer spacebegins, attempts to adopt a legally binding delimitationbetween airspace and outer space, or at least to agreeon a recommended interpretation of these notions, havefailed in spite of lengthy, but often rather superficialdiscussions on this issue. Also an explicit recognition ofthe right of passage for a space object of one State forthe purpose of reaching orbit or returning to earththrough the airspace of other States has not beenachieved up-to-date. Nor has such a right beengenerally accepted as firmly established in customaryinternational law. The attempts to bring a new light toconsideration of these issues by studying the legalaspects of aerospace objects, which have beenundertaken in the COPUOS Legal Subcommittee inrecent years, have not led to some clear and convincingconclusions thus far.10Under the scope of the same item “Definition andDelimitation”, the Legal Subcommittee has been alsooccupied for years by discussions on the legal status ofthe Geostationary Satellite Orbit. The long-lastingexchange of views on this issue has mostly concentratedon the dilemma whether the GSO is an inseparable partof outer space or a particular area to be governed by aspecial legal regime. Another issue relating to the GSOhas been the question of the respective competences ofthe COPUOS and the ITU to deal with this subject. Inrecent years, this discussion has been leading to a more10 Under the scope of consideration of this problem, aquestionnaire on possible legal issues with regard to aerospaceobjects was elaborated in a special working group of the LegalSubcommittee which was addressed to Member Stares of theCOPUOS and a number of replies were received. Cf. UN Doc,A/AC.105/635 and Add. 1-5, and UN Doc. A/AC.105/C.2/L.204which presented a “Comprehensive analysis of the replies to thequestionnaire on possible legal issues with regard to aerospaceobjects” prepared by the Secretariat However, the discussion onthe basis of these documents did not proceed further at the lastsession of the Legal Subcommittee. Cf. Report of the LegalSubcommittee on the work of its thirty-eighth session (1-5 March1999), pp. 6 s. and 12s..analytical and rational approach which might enable acompromise solution of this problem.11In accordance with its original mandate, theCOPUOS Legal Subcommittee should also startstudying new legal issues which emerge from thepresent and expected development of space activities,report on them regularly to the Committee, and throughit to the General Assembly, and propose adequatemeasures for their solutions. In these endeavours, theLegal Subcommittee should closely cooperate with theScientific and Technical Subcommittee of the COPUOSand vice versa, the Scientific and TechnicalSubcommittee should not hesitate to address the LegalSubcommittee with requests for expert legal opinions.After all, a close cooperation and interaction of bothsubcommittees was one of the aims of the COPUOSwhen it was establishing them as its subsidiary bodiesin 1962. Up-to-now, such cooperation has been ratherexceptional, but it was successfully effected during theelaboration of the NPS Principles.One of the impending subjects that needs to bestudied by both subcommittees under the scope of theircompetences, is the protection of space environmentagainst the generation of space debris. This issue hasalready been explored in the Scientific and TechnicalSubcommittee for several years and the conclusions ofits deliberations on this point have been at the 1999session of the Subcommittee.12 The work of the11Cf. the reflection of the recent stage of discussion on this issueparticularly in the report of the Chairman of the Working Groupon this subject in Report of the Legal Subcommittee on the workof its thirty-seventh session (23-31 March 1998), UN Doc.A/AC.105/698,6 April 1998, Annex I, pp. 15 s..12 The Scientific and Technical Subcommittee started theconsideration of space debris in 1994 and adopted a multi-yearwork plan covering specific topics of this issue. In 1999 theSubcommittee adopted a technical report which should besubmitted to the COPUOS for its 1999 session, UNISPACE III,the Legal Subcommittee and other international organisations.During the discussion in the Scientific and TechnicalSubcommittee, a number of delegations expressed the view that“there should be follow-up activity by the Legal Subcommittee onthe technical report on space debris” and that COPUOS “mightwish to have the Legal Subcommittee consider presenting itsviews on the applicability of the existing outer space treaties inrelation to space debris”. Other delegations, however, consideredsuch a discussion as premature and it should be postponed “atleast until the technical report had been thoroughly analyzed by

22 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS(because of a lack of financial and technicalopportunities).But for precisely that last reason the absence ofmany states from the latter category is quite surprising.As any effective application of the common heritage ofmankind-principle to the moon would result in arelatively beneficial position for the developing states atlarge, their almost comprehensive absence amongstparties (and signatories) would not seem to make sense.This analysis in any case precludes justification of anyattitude which lays the blame for non-adherence to theMoon Agreement squarely with the industrialised states.Therefore, while I could agree with the author that thesolution of 1979 at that time seemed to provide anadequate compromise, any such adequacy in retrospectmust surely be seen to have evaporated fairly quicklyand comprehensively. The ‘solution’ failed to appeaseeither ‘side’ of the ‘dividing line’, if one wants to phraseit in those terms. To the extent that there is anyelaboration of the principle of the common heritage ofmankind at all - which I find missing, particularly whenone compares again with the Law of the SeaConvention - it has failed to draw more than marginalsupport. I would concur with Professor Böckstiegel’scomment made in 1993 at the IISL Colloquium in Graz,that the Moon Agreement is dead. It certainly has notbeen revived since then.Nevertheless, whether focused on exploitation ofthe moon or seen from a wider perspective - includinge.g. the exploitation of (opportunities in) outer space forsatellite communications or satellite remote sensingpurposes - it might be worthwhile to contemplate towhat extent sector-specific regulations should beallowed to regulate economic activities in the absence ofcoherent and comprehensive economic regulatoryprinciples similar to what space law stricto sensucurrently provides e.g on the military uses of outerspace or on liability issues.7. I respectfully disagree with the author’s evaluationof the remote sensing principles as presenting acompromise, fair or not, between the interests of sensedand sensing states. It may be that the particularResolution has been accepted by consensus, and thatmay be a valuable thing, too. Also, the rights of thesensed state are (indeed) made reference to.Yet, the Resolution itself does not provide any details ofpre-existing rights or even indicate any, let alone furtherelaborate such rights. In view of the fact that at thesame time the freedom of undertaking space activitiesis explicitly reconfirmed in the guise of freedom ofremote sensing, it is obvious that the Resolution leavesno room for prior consent of the sensed state, orexclusive or even preferential access to the data. Allthat remains, is the ‘non-discrimination’ principle - i.e.sensed states can at least assume not to be treatedworse than other states interested in the same data -and this is moreover not an absolute principle, butmerely presented as a basis for data distribution,subject moreover to the ‘reasonable cost terms’-provision. This may be fair or not - largely dependingupon your perspective on the structure of the worldeconomy and society - but it can hardly be called acompromise.8. The author rightly touches again upon the lack ofdefinition o f ‘outer space’, which lies at the basis of thediscussions on any existence of a right of (innocent)passage for a spacecraft through foreign airspace andon the status of the geo-stationary orbit. These issuesalso relate to the functionalism-spatialism dichotomy,and provide proof that discussion thereof is not merelya theoretical exercise, but has some very concrete legalramifications which may shortly take the shape ofpractical disputes.As touched upon in the paper, for example thediscussion as to whether ITU should not be given thelead in providing for and elaborating the legal regimefor (use of) the geo-stationary orbit directly stem fromthese problems. Efforts to discuss this matter withinUNCOPUOS should therefore be applauded, even if anumber of important states are still averse to conclusivesteps in this regard. To the extent that such adversity isfed by private enterprise, wishing to avoid any undueconstraints on their commercial activities, it might betime to tackle these issues head-on.9. The subject of space debris and relatedenvironmental concerns, of crucial importance to thefuture of the whole space endeavour if not of humanityas such, is rightly given a prominent place in the paper.I agree with the author that, at this point, the ball laysin the court of the technicians, and in the wake thereof

EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS 23probably of economists and politicians. I firmly believethat the major breakthroughs on this issue in the lastresort require the political will to spend the moneyrequired to realise the various technical and othermeasures available.Lawyers should be relatively modest in this area;their major contribution would lie in giving legal shapeto whatever political and economic solutions would beglobally or at least generally accepted. Examples ofsuch solutions have been put forward from the legalside recurrently in the past years, such as thoseregarding safeguard funds for damage by space debriscoming from unidentified sources, and obligations forlaunching parties to take certain precautions and/orprovide certain funds and/or financial guarantees.10. The author rightly points out that, probably for thefirst time since a number of years, some worthygovernmental initiatives have been taken recently in thearea of dispute settlement. Most notably, an optionaldeclaration to accept, on a reciprocal basis, in advancea Claim Commission’s judgement under the LiabilityConvention as binding, is a step in the good direction.Nevertheless, one should caution that also in this areathe main efforts required will lie outside the legal fieldproper. Once the major part of states accepts that foreffective settlement of disputes it is necessary toestablish independent mechanisms or even bodies, thatit is inevitable that sovereignty will be taking a backseat in some respects, in the world of international lawsufficient legal dispute settlement mechanisms aboundwhich could be used, if necessary after adaptation or bycopying, for space dispute settlement as well.In conclusion, the paper by giving a comprehensive andinsightful analysis and evaluation of space law strictosensu and its relation with space law lato sensu, bringsinto focus a number of crucial legal issues which wouldmerit considerable attention by the governmentsassembled at the present UNISPACE with, hopefully,one particular abstract idea at least in the back of theirminds: to enhance the working of the current legalframework for space activities, with the ultimate goal tomake the human space endeavour more fruitful,effective and beneficial for all.Commentary PaperS. BhattIntroductionI am pleased to offer my comments in this shorter paperon Professor Kopal’s learned discussion paper on thesubject of "Existing United Nations Space Treaties:Strengths and Needs". These comments are made in awider perspective of IISL workshop subject "space lawin the 21st Century", and the UNISPACE IIIConference. Space law is based on communityexpectations (Professor Myres McDougal). It is acreative discipline for the progress of mankind(Professor Oscar Schachter). It rests on the consent ofstates (Dr. Nagendra Singh former Judge and Presidentof ICJ). Therefore existing strength and needs of spacetreaties are to be seen keeping in view space goals ofbenefits for all, poverty removal, promoting knowledgeand research and achieving harmony and creative unityof mankind.Salient Points of Professor Kopal'sPaperProfessor Kopal makes a survey of the achievements ofthe UN in space law-making which has proceeded stepby step laying down leading principles from time totime. Space law is obeyed by all states, he says. Hepoints out the following major shortcomings in theregime of space law: the OST does not have provisionfor economic exploitation, it has no mechanism for thesettlement of disputes, the Moon Agreement of 1979has not been accepted by advanced states so far, theregulation of NPS has met with limited success, thespace benefits principles though not legally bindingprovide for a code of conduct for states, the problem ofdefinition of space remains to be solved, there is needfor protection of space environments, and effectivenessof legal instruments needs to be improved by morestates becoming parties to them. Space law can befurther developed, says the author, by new legalprinciples, new General Assembly resolutions and by

24 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDSnew agreements. The existing instruments can beamended, Professor Kopal concludes.Professor Bhatt's Comments andProposalsI offer the following comments on Professor Kopal'spaper.The Problem of Definition of OuterSpace: Need for Temporary BoundaryThis problem may be resolved by agreeing to atemporary boundary at a vertical distance from earth ofsay 100 to 200 kilometers for a specified period of time,say 30 years or so with the provision of innocentpassage, and states having rights to withdraw in casesecurity considerations are involved. We have ananalogy from Antarctica Treaty. Thus the regimes ofairspace and outer space can be treated separately.Outer Space BenefitsThere is a UN Declaration of 11 June 1996 on thissubject. Based on a predominant concern of mankindand mutual benefits and interests of all states, we mayevolve a legal instrument for states for internationalcooperation for space benefits. It should be a voluntaryand a cooperative effort.Amendments to Space InstrumentsI agree with the amendments proposed by ProfessorKopal. Further, in Art. VI of OST we may includeprivate business entities. For dispute settlement we mayadd arbitration clause where states agree.An International Organizations for OuterSpaceCooperation is needed sooner than later for overallmanagement of international cooperation in outer spacefor the 21st Century and for achieving progress ofmankind. ICAO and other specialized agencies offermodels which can be improved. The COPUOS can bedeveloped for this purpose.Progress of MankindI am hopeful that UNISPACE III will provide a newimpetus to space law and space exploration towardseconomic benefits and overall progress. Progress, ashistorian Gibbon says, is "the pleasing conclusion thatevery age of the world has increased, and still increases,the real wealth, the happiness, the knowledge, andperhaps the virtue, of the human race." Humankindseems set for much progress in space exploration forthe 21st Century.Space EnvironmentIn view of global developments in the field ofenvironment (Stockholm Declaration 1972, UN Charterof Nature 1982), we may draft an "Outer SpaceEnvironment Act" which will include protection ofspace environment, sustainable development, interactionwith other planets, and space law interaction withscientific research. Law is to be seen in the frameworkof universe, said Justice Holmes of United States. Thisrequirement applies much more to space law.Commentary PaperEilene GallowayStrengths and NeedsThe reaction of the international community to the 1957thrust of rocketry that could be used for war and peaceis embodied in the legal framework created by nationscooperating in the United Nations. Their objective wasto prevent outer space from becoming an arena for

EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS 25warfare and ensure that the new environment be usedfor peaceful purposes to benefit all mankind. Thestrength of the system is evident from the fact that for42 years we have avoided war in outer space ordirected toward the Earth. Basic policies wereformulated by a combination of scientists and engineerswho were working on the International GeophysicalYear, national political decisionmakers who recognizedthe international nature of space activities, and theUnited Nations which served as a forum fornegotiations.The guiding principles adopted for exploring andusing outer space were implemented by national andinternational organizations with funded programs. TheUnited Nations organized the Committee on thePeaceful Uses of Outer Space (COPUOS) with theScientific/Technical Subcommittee and the LegalSubcommittee. Effective working procedures wereadopted: (1) decisionmaking by consensus whichstrengthens compliance; (2) expanding principles of the1967 Outer Space Treaty into new treaties, thusensuring consistency in advancing space law; and (3)passing declarations on problems that might laterbecome treaties.By the beginning of UNISPACE III, it becameapparent that there was general agreement onpreserving what has proved successful in combiningpolicies, organizations and programs, and turn attentionto updating and refining the system which effectivelyenhanced international space cooperation. As weapproach the 21st century, new trends are discernibleand provide opportunities to plan for the future.Arms ControlArms control for outer space is the priority problem.Unless we preserve outer apace as a safe orderlyenvironment, it will be impossible for space technologyto provide benefits for humankind. We cannot takepeace for granted and it is necessary to broaden thescope of disarmament. Methods should be sought forcoordinating COPUOS with overall UN disarmamentactivities. COPUOS might have a representative on theUN Disarmament proceedings for subjects concerningouter space; or a representative from the UNDisarmament body could inform COPUOS at its annualmeetings of matters involving the maintenance of peacein outer space. Attention should be given within the UNstructure to coordination of information and actions onarms control with special attention to outer space.Space Science, Technology and LawLegal guiding principles must be based on identifiedunchanging facts of space science and technology.Satellites are planned and constructed for specificorbital positions which can produce information to andfrom the Earth. Earthbound legal concepts are notalways applicable to the unique characteristics of outerspace. This means that close relations must obtainbetween lawyers, engineers and scientists, andespecially between those in the Scientific and TechnicalSubcommittee and the Legal Subcommittee, taking intoaccount also the political and economic factors whichinfluence decisions on what should be permitted orprohibited.International Cooperation in UsingOrbits: Geostationary Orbit (GSO),Medium Earth Orbit (MEO), LowEarth Orbit (LEO), and EllipticalOrbits.There is need for a comprehensive integrated analysisof the GSO, MEO, and LEO and Elliptical orbits forpurposes of international cooperation on organizationand regulation. Thus far these regions are primarilydealt with separately in connection with functions thatare being performed: communications, navigation,remote sensing, meteorology, space debris,commercialization, etc. The role of the InternationalTelecommunication Union (ITU) in connection with theGSO and space communications is well developed butas more traffic develops in all other orbits, we cananticipate problems of international organization,information flow, and allocation of resources. It will benecessary to determine what regulation is necessary toensure peaceful fair usage. The similarities anddifferences in usage of orbits need to be studied. Is it

26 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDSprudent to organise a separate regulatory system foreach orbital region? How would their interrelationshipsbe handled? This problem requires the cooperation ofscientists, engineers and lawyers to plan for the future.A Workshop could be organised by the Scientific andLegal Liaison Committee of the International Instituteof Space Law and the International Academy ofAstronautics to study tho problem. The Scientific andTechnical Subcommittee and Legal Subcommittee ofCOPUOS could also undertake the study as a SpecialProject.One aspect of this problem could be dealt with bythe following proposal:Proposal for an InternationalRegulatory Framework forAir/Space TrafficIncreased launchings of satellites, particularly in lowearth orbit, will necessitate a regulatory framework thatis more comprehensive and coordinated than existingpractices. The need for monitoring should not beallowed to drift into patterns of activity with unintendedconsequences. Now is the time for the effectiveestablishment and operation of standards andrecommended practices to ensure a safe, orderly andpeaceful space environment for expanding spaceactivities. One approach is the possibility of extendingthe Jurisdiction of the International Civil AviationOrganization (ICAO) to include relevant components ofspace traffic management. This proposal for anaerospace inquiry is timely because ICAO's 180Member States have endorsed and are “implementingthe development of a satellite-based system concept tomeet future communications, navigation,surveillance/air traffic management (CNS/ATM) needsof civil aviation.” ICAO defines the teak as “essentiallythe application of high technologies in satellites andcomputers, data links and advanced flight deck avonics,to cope with tomorrow’s growing operational needs.”(ICAO's Aims, Standardization CNS/ATM RegionalPlanning Facilitation, Economics, TechnicalCo-operation for Development and Law. ICAO,Montreal Canada.)A commission should be created to survey existingorganizations and procedures for regulating civilaviation and space subjects, estimate the probablefuture expansion ofthose activities, identify and analyseoptions for an international system that can assure safe,efficient and peaceful services. It is necessary tocompile information on current monitoring practices,the status of national space registries andtreaty-required reports in the United Nations. Acomparative study of directing planes and space objectsshould reveal civil aviation practices that could beapplicable to satellites. A roster is needed of expertswho can formulate international standards andrecommended practices while avoiding unnecessaryrestrictions. ICAO's success with managing civilaviation should be studied to determine whether thoreare organizational and management practices that areapplicable to space traffic and foreseeable aerospacetraffic. Is it feasible to incorporate some spacefunctions into ICAO's existing organization, e.g., theAir Navigation Bureau, the Air Transport Bureau orTechnical Cooperation Program? Should a new ICAOAerospace Bureau be established or should relations behandled by Agreements on matters with which theyconverge? We need to establish essential technical andscientific requirements without which space operationscannot be conducted successfully, and to which politicalentities must make adjustments.Space ExplorationThe 1967 Outer Space Treaty provides for a two-pathapproach to outer space: exploration and uses. At thepresent time emphasis is on the various uses, probablybecause of the increase in commercial applications. Inplanning for the 21st century, we must continue toemphasize the values from exploration of the solarsystem and the Universe, thus ensuring that nations willappropriate adequate funds for exploration.Definition of Legal TermsBoth the IISL and tho Legal Subcommittee could workon defining the legal terms that need to be clarified aswell as the methods available for this purpose. Theterms that require clarification include: space object,

EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS 27responsibility of States for space activities, liability fordamage, legal responsibility for commercialinternational ventures, the common heritage ofmankind, province of mankind, settlement of disputes,astronaut, scope of information needed for registrationof space objects, celestial bodies, appropriate State,launching authority, nationality of the State, aerospaceobject, non-state entities, etc. Again, this task needs tobe performed with due regard for immutable scientificfacts that affect operations in outer space.Concepts of Area and FunctionThe development of space applications indicates thatsovereign states found ways of coping withnon-sovereign areas by regulating functions. We are notconfined to formulating law by area or function becausewe use both continuously and have done so for outerspace matters for 42 years. When the space age began,some organizations, notably those concerned withcommunications and meteorology, added spacetechnology to improve functions they were alreadyperforming. New national and internationalorganizations were created to carry on specificfunctions in the area of outer space. Now we have anew dimension added to planning for the future: theGlobal Positioning Service (GPS) which can quicklyprovide precise information on the place and time of anevent as well as data on moving objects. This capabilityshould be taken into account in discussions ondelimitation.What is Space Law?The five UN-formulated space treaties are basic inproviding guiding principles for States in the conduct ofspace activities. However, national and internationalspace activities have spread to such a variety ofapplications, some conducted by non-State entities, thatadditional legal sources must be used for regulatingoperations designed to preserve outer space as a safeorderly environment. The impact of space activitiesaffects the Earth with problems related to aviation,space debris, property rights, insurance, liability, etc.The laws of different nations become involved, creatingthe necessity for harmonizing national and internationallaw. The settlement of disputes may require reference toa variety of laws, depending on the subject. We are notdealing solely with law for the area of outer space butmore specifically with the legal aspects of spaceexploration and ever-expanding space activities on theEarth. It is therefore necessary to expand our concept ofspace law.The Moon Agreement and OtherCelestial BodiesOnly nine nations have ratified the Moon Agreementsince it was recommended by the United NationsGeneral Assembly 20 years ago: Australia, Austria,Chile, Mexico, Morocco, Netherlands, Pakistan,Philippines and Uruguay. Objections to provisionsregarding the establishment of an international Regimeto govern the exploitation of the Moon’s naturalresources when feasible, and differences over theinterpretation of the Moon's natural resources as “thecommon heritage of mankind”, have kept spacefaringnations and others from ratification. When the UNGeneral Assembly reviewed the treaty in 1994, tenyears after it had gone into force upon ratification byfive nations, it found no evidence of feasibility forexploitation of natural resources and no action wastaken.Evidently we cannot depend upon the passage ofmore time to result in acceptance of this document bythe international community. We are left, however, witha problem which demands attention. Article 1(1) of theMoon Agreement provides that “The provisions of thisAgreement relating to the Moon shall also apply toother celestial bodies within the solar system, other thanthe Earth, except insofar as specific legal norms enterinto force with respect to any of these celestial bodies”.“Specific legal norms" for celestial bodies other thanthe Earth are not now being considered in planning forthe future and, furthermore, we have no legal definitionof “celestial bodies”.I am, therefore, recommending that theInternational Institute of Space Law appoint a standingCommittee on Legal Aspects of International SpaceCooperation on Celestial Bodies to study and analyze

28 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDSthis problem with a view toward its consideration laterby the Legal Subcommittee of COPUOS.Additional attention to the Moon Agreementsituation could be given by the IISL in a workshopComparing the Moon with Antarctica where agreedprinciples combine opportunities for scientific researchand commercialization.Commentary PaperEduardo D. Gaggero,Alicia Presto Lausarot, andMarta Gaggero MontanerCentro de Investigacion y DifusionAeronautico-Espacial, UruguayInternational Space Law, elaborated by COPUOS andconsisting of five international space treaties regardingthe exploration and peaceful uses of outer space, plusfive sets of legal principles, has come to a standstillstage.In view of this, the Legal Subcommittee of theCOPUOS has introduced a new topic in its Agendarelated to the “Review of the status of the fiveinternational legal instruments governing outer space”,and has noted that there are various circumstances thatimpede ratification of the legal instruments governingouter space.Privatisation and commercial uses of outer space,has led to the application of other instruments.Consequently, the existing norms should beanalysed, examining the possible complementation ofSpace Law in force with international norms thatregulate private space activities. The LiabilityConvention should define private liability so as toprevent national authorities from applying their owninterpretations of the Convention through national law.There should not be forgotten the principles establishedby UNGA Resolution 51/122 about InternationalCooperation which establishes that contractual aspectsof the activities of international cooperation should beequitable and reasonable and should absolutely pay dueconsideration to the legitimate rights and interests of theinterested parties, as for example the rights ofintellectual property. These represent a security forindustrial investments in highly risky technologies. Toattract private investors in outer space, legal certaintyis a prerequisite to assure responsibilities in case ofviolation.The Legal Subcommittee must balance the needsand rewards of the various actors of space activities andmust work on a legal framework that could lead themto the XXI century with the minimum of conflicts andthe maximum of progress and cooperation.Another topic of great importance is the one ofspace debris. The Scientific and TechnicalSubcommittee is considering the issue, but it has notbeen included in the Legal Subcommittee Agenda yet.It should be noted the lack of enough regulation ofthe issue, in reference to the liability for the damagescaused by space debris. The Outer Space Treaty andthe Liability Convention established the internationalliability of launching states for the damages caused byspace objects or its ’’component parts”, on earth, airspace or outer space. It can be deduced that spacedebris are part of space objects, and consequently it canbe applied the liability regime of the Outer SpaceTreaty and the Liability Convention. The most difficultissue is to identify the origin of a component part of aspace object. It is necessary then to count on a moreprecise regulation that should define the concept ofspace debris, set certain guidelines in order to avoid theproduction of debris and establish measures to reduceits growth. In reference to this topic, in the RegistrationConvention, the problem is how to define and identifyspace debris. It should be supported the proposal ofcreating a world-wide monitoring entity or aninternational guarantee fund with the main andproportional contribution of those who use and takeprofits from space activities, and according to thedanger they create and their frequency. Anyway, theConvention should be amended in accordance with theCommittee.

EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS 29In reference to the Moon Agreement, it can befound some gaps and non-definite terms , as the’’common benefit of Mankind”, considered now as its”heritage”. The Law of the Sea negotiations, with its1994 Protocol could be taken as an example.Through the debate of the five space treaties in theLegal Subcommittee, the principles in force could bedeveloped; filling the gaps and the present conflicts thatconducted to the standstill situation. The present stateof space industry requires more precise rules. Theexisting treaties and principles have often a very genericcharacter.This growing evolution of space science andtechnology, supports the idea of the need of creating aninternational space organisation. The COPUOS, as thesole body that treats space issues in a global way, is notenough, due to its membership (61 members), to itsnon-permanent character, and to the scarce resourcesassigned. That organisation would have mainly the taskof controlling the compliance of space norms in forceand of preserving the use of space environment so as toavoid its contamination.While this does not occur, it should bestrengthened the role of COPUOS for two reasons: firstof all, to continue with its work of elaborating the rulesof Space Law and secondly, because it is the maincentre of coordination of International Cooperation inthese issues.States have reaffirmed their will of internationalcooperation by approving UNGA Resolution 52/122,The political context has changed. The Cold War isover, and there exist cooperation links betweendeveloped countries (for instance in the InternationalSpace Station) and between developing countries.Developing countries have serious difficulties toparticipate in the use of space technology and to haveaccess to it. Among other reasons, because the pricesthey must pay are too high or their lack of confidence intheir own scientific and technical capacities. That iswhy training of human resources must be considered asan essential target. But, through cooperation, theseobstacles may be overcome.The countries of the American continent, throughthe Space Conferences of the Americas, have looked forcooperation mechanisms for certain projects that implythe use of space technology; despite they have notreached the expected success.There are certain areas where cooperation maybring major benefits: the monitoring of spaceenvironment and the prevention of natural disasters.That is why we consider that the action in these areasmust be strengthened.There exist misinformation in many countries aboutthe benefits brought by space technology. It isnecessary that decision-makers of each country becomeaware of the fact that it is necessary to participate in thedevelopment of space technology. It is desirable toreach multilateral consensus about space objectives andto achieve agreements at the highest decision level.International cooperation should be promoted byattending, participating and giving opinions at thespecialised fora such as COPUOS.Uruguay is member of the Committee since 1981and has supported its work in the sense of deepeningand adhering to the legal regime in force, having alwaysin mind the basic concept of the Common Heritage ofMankind.Cooperation must be practised among all countries,developed and developing, and, in fact, must bematerialised through the active participation in theelaboration of Space Law and in the ratification of thelegal instruments in force.ConclusionSpace activities are developed by a selected group ofstates. Developing countries that mostly do notparticipate in space activities must strengthen theirtechnological capacity and, through “internationalcooperation” must take advantage of the availablemeans at the regional level, according to universalobjectives and efforts. They should also become awareof the real and practical possibilities offered by theSpace Age. They should demonstrate their interest in

30 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDSthem, claiming their rights, but at the same time,assuming the correlative and ineludible responsibilities.By the ratification or adherence to the legalinstruments that rule outer space, developing countries,with their compromise of action, shall give impulse tothe strengthening of its legal regulation.The present situation shows us privatisation andcommercialisation of space activities, the appearance ofnational laws that rule them and the fact that there aremany states that are reluctant to assume theirresponsibilities, which is the major concern.The scientific-technological activities cannotcontinue developing without legal rules. That is why itappears imperative to return to the COPUOS as thebody where scientific-technological and scientific-legalissues meet.Progress cannot be reached if we disregardHumankind, reflected in the nations that make up theCOPUOS. There, resolutions are taken by consensusand afterwards, approved by the United NationsGeneral Assembly, the UN body where almost all thecountries of the world are represented.Powers that want to continue developing theiractions in the field of FACTS, feel bothered byregulations and consider them unnecessary obstacles,with less PRACTICAL value. In an ecumenical activitythat is province of Humankind, the selfish interest ofsome, should not prevail over the others interests. Itcannot be admitted that way of reasoning because everyindividual activity is conditioned by the principlesestablished by the CORPUS JURIS SPATIALIS.Every activity has a cooperative substratum. Thereexist interdependence relationships, an obligation tocooperate, to make consultations. It is impossible to goahead without a SCALE of VALUES. It cannot beadmitted the view of those that, in the name ofpragmatism or of the market freedom, pretend to applythe principle of ’’the first come, the first served”. Thisway of thinking should appear disgusting to an averagejuridical conscience.Developing countries must double their efforts tomake prevail the view of reinforcing the role ofCOPUOS against those that support the contrary idea.Commentary PaperYury KolosovMoscow State Institute of InternationalRelations, RussiaMost of the Western schools of thought usually do notdivide general international law into special branchesand institutes. The Russian (as well as the formerSoviet) school of law divides general international lawinto branches.This is the reason for some discussion between theauthor of the report, Professor Kopal, and one of thediscussants.According to the Russian legal school of thoughtany group of legal norms and principles of internationallaw which is characterised by a high degree ofcodification and by certain principles regulating thisparticular sphere of international relations may beregarded as a branch of general international law.There is no doubt that fundamental principles ofgeneral international law are fully applicable to allspheres of international relations including outer spaceactivities.At the same time, some principles of outer spacelaw are only applicable to international relations in theprocess of the exploration and uses of outer space.They are not typical for international relations in otherspheres. For example, the exploration and use of outerspace for the benefit and in the interests of all countries(Art. I of the Outer Space Treaty of 1967); Stateresponsibility for all national activities in outer space(Art. VI of the same Treaty), etc.

EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDS 31There is no doubt that the international communitywitnesses a very high degree of codification of outerspace law. The UN Outer Space Committee should bepaid great tribute for its achievements in this sphere.As is known the Legal Subcommittee of theCOPUOS has in its current agenda the item “Review ofthe Status of the Five International Legal InstrumentsGoverning Outer Space”.There are some signals that the debate in the LegalSubcommittee may provoke a sort of “recodification”of outer space law.There is nothing unusual in this approach. Indeed,in only 15 years after the adoption of the GenevaConventions of 1958 on the law of the sea theinternational community started revisiting the law of thesea which resulted in the adoption of the UNConvention on the Law of the Sea of 1982.Twenty years have elapsed since the last of the fivetreaties governing outer space activities was adopted.The changes and new developments in outer spaceactivities have been even more impressive than in themaritime activities. Therefore, it may be logical toreturn to some outstanding problems of the legalregulations of the outer space activities.Yet a piece-meal approach to the review of the fivetreaties may hardly be successful.Each of the five treaties has a provision dealingwith its possible amendment. Such amendments may beproposed only by States Parties. The “club” of StatesParties to each of the five treaties is different.Therefore, any piece-meal approach may cause muchmore inconsistencies among the amended provisions ofthe treaties.The realistic approach may be a holistic one, whena special conference will be entrusted with the task ofdrafting an overwhelming document which mayencompass all the five existing treaties (with possiblemodifications) and other provisions existing in the formof declarations of principles or not covered even byrecommendations.We share the view of Professor Kopal that theprinciple of international responsibility of States for allnational activities in outer space should remain valid.Its importance will be even on the rise, since outerspace activities will have greater impact on the life ofgenerations to come. Therefore we do not share theview that problems arising in connection with spaceactivities of private enterprises should be studied. Wefirmly believe that these problems should be left fornational legislations.Coming back to the issue of branches ofinternational law we support the idea of elaboration ofthe definition of outer space in the light of substantialdifferences between outer space law and air law.We believe that there exist at least the followingdifferences between the two branches:• air space is divided into national air space andinternational air space while outer space isindivisible and not subject to nationalappropriation;• any objects carrying nuclear weapons or anyother kinds of weapons of mass destructionmay not be stationed in outer space while thereis no such restriction in relation to air space;• States have no obligation to explore and use airspace for the benefit and in the interests of allcountries, which is the case in relation to outerspace;• States are not internationally liable for damageto other States or to their natural or juridicalpersons caused by private air enterprises butare internationally liable for damage caused byany space object launched from its territory orfacility;• there is no international Register for aircraftengaged in international air services while sucha Register is maintained in relation to launchedspace objects;• States have no right to conduct remote sensingactivities from foreign air space but have theright to carry out such activities in relation toforeign territories from outer space.

32 EXISTING UNITED NATIONS TREATIES: STRENGTHS AND NEEDSThese and other differences between the twobranches of international law dictate the need for thedelimitation of the two spatial spheres.Summary ReportThe five main UN space treaties were discussed with aspecial emphasis on the strengths and needs for furtherdevelopment. It was recognised that the existing spacetreaties, especially the Outer Space Treaty, are a stillvalid and efficient foundation for Outer Space Affairsbut clarification of some provisions and supplementsfor certain problems is required today.The Legal Subcommittee is - following the revisionof its agenda structure - in the unique position to taskup issues in an explorative way ("singleissues/discussion items”) as well as substantive itemsunder workplans. The following issues can therefore beflexibly accommodated on the agenda of the LSC.UNISPACE/UNCOPUOS should decide on thesequence of their inclusion in the agenda.• Elaboration of a legal regime for Low EarthOrbits taking into account recent changes inthe ITU Convention concerning the status ofLEOs as limited natural resources.• Identification of problems and elaboration ofprinciples for technology transfer ininternational cooperation.• Establishment of a joint UNCOPUOS/ITUWorking Group for the harmonisation of workto be done in the future.• Concluding the discussion on delimitationpossibly with drawing a temporary boundary.• System for dispute settlement (session 7).• Creation of a bibliography of definitions(IISL).• Investigation in the possibility to draft acomprehensive "Treaty on the Law of OuterSpace/Magna Charta for Outer Space”(prepared by a IISL Working Group).• Study on the implementation of the space lawinstruments (including the sets of principles) by. States (prepared by an IISL Working Group).• Investigation in the binding nature of space lawinstruments for non-signatory States (preparedby an IISL Working Group).• Investigation in the problem of the nationalityof spacecraft.• Regulation of space activities conducted byprivate entities on a commercial basisencompassing questions of reliability, disputesettlement and the enactment of harmonisednational space.• Need for a "Outer Space Environment Act”encompassing the definition of space debriswith regard to the concept of "space object”.

EXPANDING GLOBAL LAUNCH SERVICESSESSION 2Chair: Professor E. Back Impallomeni (Italy)Coordinator/Rapporteur: Dr. Frans von der Dunk (The Netherlands)

SESSION TWODiscussion PaperH. Peter van FenemaAdjunct ProfessorInstitute of Air and Space LawMcGill UniversityCanadaExpanding Global Launch ServicesIntroductionOver the past five years, the character of space launchservices has changed in a number of ways.First, the role of governments as the main procurersof their ‘own’ national launch services has beendeclining, and other entities, primarily national andinternational telecommunications companies andorganizations are taking over as the main customers;put differently, competition between internationallaunch providers, for commercial customers worldwide,has rapidly increased.Second, the deployment of communications satelliteconstellations such as Iridium, Globalstar andOrbcomm since 1997 has brought a shift fromtraditionally mostly single payload launches intogeostationary orbit (GEO) to more and morecommercial multiple payload launches into low earthorbit (LEO).Governmental and private industry analyses regardthese trends as long-term phenomena. Some figures toillustrate these points. According to the U.S. FederalAviation Administration, the number of commerciallaunches worldwide has nearly tripled from 14 in 1994to 36 in 1998, representing 15 percent and 44 percentrespectively of worldwide launch activities.1In 1998, launch service providers of five countries,with Europe counted as one country, took care of these36 commercial launches, as follows:CountryU.S.A. 17Europe 9Russia 5Ukraine 1China 4Number of launchesThe same government source reports that, of agrand total of 167 spacecraft launched in 1998 on 82launches, 104 spacecraft were of a commercial nature,of which 82 had a LEO destination; 78 of the latterwere for the account of Iridium, Globalstar andOrbcomm. These appeared on the launch manifests ofprimarily U.S., but also Russian (7), Ukrainian (12)and Chinese (8) launch companies. Europe onlyperformed GEO launches in 1998.'See Commercial space transportation: 1998 year in review,FAA Associate Administrator for Commercial SpaceTransportation (AST) (January 1999)

36 EXPANDING GLOBAL LAUNCH SERVICESAnother U.S. government study forecasts thefollowing global demand for commercial launchservices for the period 1999-2010 (in average numberof launches per year):GEO satellites:LEO/MEO/ellipticalsatellites:LEO satellites:Total launches peryear:Total launches in 12years period:25 launches of medium-toheavylaunch vehicles15 launches of medium-toheavylaunch vehicles11 launches of small launchvehicles51 (+40%)610, for a total of1369 satellites.2A private market research firm gives the followingforecast for the years 1999-2008, a 10-year period,including an approximate total value of the satellitesconcerned:commercial communications satellites: 1.017(value: US $ 49.8 billion)commercial earth imaging satellites: 40-50(value: US $ 3.5 billion)military satellites: 305(value: US $ 35.1 billion)3The above sources do not provide data on (other)government launches in the same period (scientific,experimental, Space Station etc), but, as indicated2 See 1999 Commercial space transportation forecasts, FAA’sAssociate Administrator for Commercial Space Transportation(AST) and the Commercial Space Transportation AdvisoryCommittee (COMSTAC) (May 1999)3 See Satcom market buffeted by economic uncertainties,Marco Antonio Caceres, Teal Group Corp. (January 11, 1999),Aviation Week & Space Technology Online The military forecast is based on an estimated I5 satellitesper year launched by the Russians, and 10-11 per year launchedby the U.S, with Europe, China and some other countriesresponsible for the remainder.above, the trend definitely points at a preponderance oflaunches for global and regional commercialcommunications satellite systems. These systems inturn serve communications conglomerates, whichprovide worldwide (mobile) phone, data, internet,navigation and other communications services. Thisglobal telecom market with an estimated value of someUS $ 600 billion, is growing dramatically, supportedinter alia by the - start of - worldwide liberalization oftelecommunications through a 1997 WTO agreementOne of the consequences of the above ‘marketrealities’ is that the launch service providers areincreasingly faced with requirements ofcommercial/private enterprise (-oriented) customers(this does not necessarily exclude governmentscontracting for domestic or foreign launch services),and in that respect they have to live up to theexpectations of their customers like any other serviceindustry. The more ‘result oriented’ the industry is, themore demanding it may be as a customer.One approach to the question of the legal andpolitical aspects of expanding global launch services istherefore to look at these requirements and demands,review the impediments, which may stand in the way ofthem being met, and look for possible remedies of alegal or political nature, including, space law.After all, space law, like other branches ofinternational law, should first and foremost address realproblems and matters of space trade and commerce,which are sure to produce these to an increasingdegree.Launch services: the customers’requirementsReliability of launch servicesAny annual review of worldwide launch activities willnot fail to highlight both the successes and failures ofthe launches performed. The reliability ‘quote’ of thelaunch systems concerned are of interest to theinsurance community and to the customers alike. But all

EXPANDING GLOBAL LAUNCH SERVICES 37established launch providers have experienced failuresboth with the proven and the new launch vehicles,affecting the confidence of the parties concerned, atleast temporarily. Examples are the Space Shuttledisaster in 1986, and, much more recently, the failedfirst European Ariane 5 launch in 1996, the RussianProton in December 1997, the Japanese H-2 inFebruary 1998, the U.S. Delta 3 and Titan 4 in August1998, the Ukrainian Zenit 2 in September 1998, and inthe first 5 months of 1999 four more U.S. failuresinvolving the Delta 3, the Titan 4 (2) and the Athena 2.A private industry database on all spaceflightsperformed shows 60 significant launch failures since1990.4A number of suggested explanations for this recentstring of U.S. failures includes an overreliance oncomputer models instead of flight testing, too fewexperienced engineers for too many programs, thepressure to reduce cost in the face of foreigncompetition, and an “unprecedented number ofcustomers in science, communications and otherindustries clamoring to get their payloads into space.”5Whether the launch failures occur in the U.S.,Brazil or Japan, the effects are worldwide because ofthe international customer base and the latter’srequirements. In fa c t, the limited number of countrieswith a launch industry creates a vulnerability of theindustry in toto for disruption of services to theircustomers. It is not uncommon to have lengthy postaccidentinvestigations, pending the outcome of whichthe launcher or even the complete launch familyremains grounded: it took one and a half years beforethe Space Shuttle resumed services; the recent Delta 2failure caused a 4 month hiatus in Delta 2 launches; theProton failure of December 1997 grounded that vehiclefor 3 months and flights of the Titan 4 have beenpostponed indefinitely. This may seriously affect thecontinuity or feasibility of those (planned)activities/services which depend on the launch industry,such as the global telecommunications andmeteorological services industry.Whether and how soon these technical problemsmay be solved in each case depends on national hightech knowledge and their expertise. We emphasize theword national, because the space industry, and thelaunch industry more in particular, is subject to, if notthe victim of, a number of aspects and factors typicalfor that industry, which hamper internationalcooperation:• Military-strategic background• National prestige• National security• Foreign policyImportant to understand nations’ attitudes towardsthe sharing of this technology with ‘outsiders’ is thefact that the launch vehicles are often regarded asdangerous, similar to military missiles.6 In fa c t, thetransfer of know-how about launch vehicles and launchtechnology from one country to another is discouragedthrough national export controls, which in many casestreat launch vehicles as missiles, that is as a means ofdelivery systems for weapons of mass destruction(WMD, i.e. nuclear, chemical and biological weapons).Basis for these national controls is a multilateralregime, the Missile Technology Control Regime(MTCR) of 1987. This regime includes Guidelines forsensitive missile-relevant transfers and an Equipmentand Technology Annex, which require the participatingcountries to exercise “particular restraint” in theconsideration of transfers of complete rocket systemswhich include ballistic missiles, space launch vehicles,and sounding rockets, all with certain performancecriteria, and complete subsystems, as well as thespecially designed production facilities for these (sub)systems, including the equipment and technology,4 The U.S. -based Aerospace Corporation, as quoted in NYT(May 12, 1999) at 1 (“Series of rocket failures unnerves U.S.space launching industry”)3 Id. As another space programs expert, John Pike, quoted in thesame article notes, “[s]pace launch vehicles are inherentlyunreliable and people should understand that this is still a riskybusiness.”6President Kennedy, asked in an interview in the early 1960s toexplain the difference between the rocket that put John Glenninto orbit and a missile carrying a nuclear bomb, was reportedto have answered with one word: “attitude!”

38 EXPANDING GLOBAL LAUNCH SERVICES“regardless o f their purpose, and there will be astrong presumption to deny such transfers. "(emph. add.)As these MTCR controls concern transfers to “anydestination beyond the Government’s jurisdiction andcontrol”, the 32 participants possessing any of theabove systems or technology are supposed to alsoexercise these controls when exporting to, orcooperating with, their colleagues within the Regime,and not only vis-a-vis non-adhering countries. Finally,and of considerable importance for the issue discussedhere is the provision in the Guidelines, which specifiesthat the latter“are not designed to impede national space programs aslong as such programs could not contribute to deliverysystems for weapons of mass destruction.” (emph. add.)Together with the above-mentioned control criteria thiswould imply that only then will there be anyinternational cooperation in the field of launching(technology) when the ‘transferring’ party concerned isabsolutely certain that the equipment or technology willnot end up in the wrong hands. That, of course is amatter of national interpretation.The U.S. view, that the commercial prospects ofnew launch systems in general are so poor that thecountry concerned will almost invariably turn thetechnology to military use or sell it to another countrywith military ambitions, and strongly suggests that, inthat country’s view, there is no such thing as certaintyabout peaceful, national space launch programsremaining totally innocent in the MTCR sense of theword.This approach taken together with the other launchindustry-specific factors mentioned above, makesalmost certain that Arianespace, Lockheed Martin,Boeing, and of course, the Chinese, Russians andJapanese will have to solve their own problems offaulty, underperforming or otherwise unreliable launchvehicles in isolation and without the assistance of theircolleagues/experts in other countries.A recent example of the consequences of thisthinking was the 1998 uproar caused by U.S. satellitemanufacturer’s technical assistance provided to theChinese Great Wall Industry Corporation, the LongMarch launch company in the aftermath of three launchfailures since 1992 involving Hughes and Loralsatellites. The respective manufacturer’s technologicaladvice, which included satellite-launcher interfaceaspects and was aimed at getting a more reliableChinese launch product for their satellites, resulted inaccusations of an unlawful transfer of sensitivetechnology which not only improved the reliability ofthe Long March launcher but could also have broughtimprovements to Chinese missiles.7 The result of this‘affair’ was legislation providing for a considerabletightening of U.S. export controls on satellites andlaunchers/missiles, including provisions which attacheddraconic conditions to Chinese launches of U.S.satellites.The above missile controls have another unwelcomeeffect from the point of view of the launch industry’scustomers, i.e. that it is extremely difficult forprospective newcomers to enter the launch ‘business’,if the new launch company concerned is situated in acountry without a missile/launch tradition and lacks thecorresponding expertise. In an environment which isunfriendly to more countries possessing launch abilities,innovative ideas, which could perhaps lead to newlaunch technology concepts, more reliable and/orversatile vehicles and/or cheaper operations, cannotcome to fruition by exposure to, or challenges by,expert industries of the ‘traditional’ launch countries.This stifles progress and oligopolizes the launchindustry, both as a technology and as a trade inservices.7 See U.S. national security and military/commercial concernswith the People's Republic o f China, Report of the SelectCommittee, U.S. House of Representatives (unclassified,redacted May 1999 version of the full report of Jan 1999), alsoreferred to as the Cox Report,. The text of the relevant‘Overview’ part of the Report (sub D) reads as follows: “In theaftermath of the three failed satellite launches since 1992, U.S.satellite manufacturers transferred missile design informationand know-how to the PRC without obtaining the legallyrequired licenses. This information has improved the reliabilityof PRC rockets useful for civilian and military purposes. Theillegally transmitted information is useful for the design andimproved reliability of future PRC ballistic missiles, as well.”

EXPANDING GLOBAL LAUNCH SERVICES 39Finally, the above environment prevents (or) at leaststrongly discourages mergers/take-overs or strategicalliances among launch companies of differentnationality, whether ‘old’ or ‘new’, to the extent theyinvolve a possible exchange of technology.The above, and in particular the ‘China affair’brings us to a second element of great importance to thecustomers of the launch industry, namely theavailability of an alternative launch provider in the caseof a launch failure and, more in general, a free choiceof launch service providers of different capabilities andnationalities; in other words: international competition.Availability of competitive internationalcommercial launch servicesA satellite owner faced with the sudden unavailabilityof the launcher it contracted for will not easily findalternative space transportation at short notice.There are a number of predictable practical problems:• Depending on the type of launch (GEO orLEO/MEO) and launch vehicle required(heavy, medium or light) the launch manifestsof the launch companies may be full and thewaiting lines may therefore be long.• Satellite-launcher interface is not standardized.In fact, each launch is rather unique in thesense that launcher and satellite are more orless ‘made for each other’. Hence, satelliteshave to be adapted to fit the new launcher(and/or vice versa): this takes time andengineering effort;• a new contract will have to be concluded withthe new launch company ( including a newarrangement with the insurers).But, there are also problems of a regulatory andpolitical nature which affect a free and easy choice ofalternative launch service providers. For e.g., themedium-to-heavy lift launch vehicles range, thecustomer could in principle choose between three U.S.launchers (Atlas, Titan and Delta) produced byLockheed Martin and Boeing, the European Ariane, theRussian Proton, the Chinese Long March, theUkrainian Zenit and the Japanese H-2. Apart frompractical factors which further limit the choice (not allof the above launchers have the same capacity, theTitan is in principle reserved for military launches, theH-2 production is limited, etc.), neither China, Russia,nor die Ukraine is completely free to offer its servicesto foreign clients.The U.S. government concluded launch tradeagreements with these countries, which not onlyprovide rules of ‘fair trade’ behavior, but also limit thenumber of launches of Western-made satellites thatmay be performed during the period of validity of theagreement and outlines the prices and price conditionsthat may be quoted by these countries’ launchcompanies for the launches to be performed for Westernclients. These launch trade agreements are the result ofa combination of the need of the U.S. satellitemanufacturers for additional launcher choice(originating in the post-Space Shuttle disaster period),a policy of engagement with potentially proliferatorycountries, and concerns that non-market economypractices applied to commercial launch activities wouldcreate havoc among the U.S. launch companies.The latter concern was understandable in 1988,when the U.S. satellite manufacturers promoted China’sentry into the launch market: the U.S. private launchindustry was still in its infancy and consideredvulnerable to low cost competitors. Since a few years,however, the situation is completely different. Similar‘market entry’ agreements have been signed withRussia and Ukraine and, in view of increasing demandon the part of the satellite manufacturers and owners,the U.S. Administration has successively liberalizedthese agreements (in the sense of permitting a largernumber of launches of Western satellites by thecountries concerned).88 Arianespace, in the late 1980s and early 1990s, felt even moreuncomfortable about the market entry of these ‘non-marketeconomy’ launch providers than its U.S. colleagues, as it madeits living to a much larger extent in the internationalcommercial launch market: there, it would have to face thenew-comers whose competitive power and effectiveness wascontrolled by the U.S., and the latter’s policies had otherpriorities than protecting the European launch company. Inview thereof, the European Commission was asked to alsoconclude a separate restrictive agreement with the Russianauthorities. The resulting arrangement, however, was neverformalized because of internal disagreement concerning the

40 EXPANDING GLOBAL LAUNCH SERVICESAt the same time various domestic mergers andtake-overs in the U.S. launch industry have producedtwo powerful launch companies, Boeing and LockheedMartin, both successful aerospace conglomerates,engaged in other civilian and military space(manufacturing) activities as well. Already in 1996,President Clinton could confidently proclaim in hisNational Space Policy that the goal of the U.S. was“free and fair trade in commercial space launchservices”, in support of which the U.S. governmentwould“implement, at the expiration of current space launchagreements, a strategy for transitioning from negotiatedtrade in launch services towards a trade environmentcharacterized by the free and open interaction of marketeconomies.”9The prospects for the abolishment of the launchquota and other restrictive conditions by the year2000/2001, when the agreements expire, have dimmedconsiderably in the aftermath of the China affair. Therelations with China, having deteriorated as a result ofthese and other, more damaging nuclear espionagerelated conclusions of the above Cox Report, appear tobe less conducive to a (launch) trade liberalizationmove vis-a-vis that country; this will also affect thechances of the agreements with Russia and Ukrainebeing liberalized within the foreseeable future. Thisbrings us to another aspect of the agreementsconcerned, namely that of national security.As indicated above, national export controls arenot only used to restrict the sale or transfer of missileand launch technology but, these regulations generallyalso cover satellites and other so-called ‘dual-use’goods and technologies, i.e. roughly all high-tech goodsand technologies that can be used for both civilian andmilitary purposes.In the cold war era, CoCom was the multilateralarrangement through which the Western worldrestricted the export of dual-use items to the SovietUnion and other communist countries. After the demiseof CoCom, its successor, the Wassenaar Arrangementof 1997, of which Russia is one of the foundingmembers, has the same purpose (to prevent ‘sensitivetechnologies’ felling in the wrong hands) but differenttargets, namely terrorist-exporting/supporting and other‘rogue’ states or entities.National export control regulations generallyfollowed the above multilateral arrangements andincluded satellites in the national lists of controlleddual-use goods and technologies. Also the EuropeanUnion, in 1994, set up a Community regime for thecontrol of exports of dual-use goods, which includedcommunications satellites in the common list ofcontrolled goods.10In the U.S., commercial communications satelliteswere originally included in the Munitions List andtreated, for export purposes, as arms and thereforecontrolled by the State Department. In 1996, pressureon the part of the satellite manufacturers resulted in atransfer of this export licensing responsibility from theState Department to the Department of Commerce. Thisdid not dramatically change the scope of the controls,but rather the starting point and the focus: where StateDepartment controls have as their sole objective toserve U.S. national security and foreign policy interests,Commerce has a strong trade and commerce focus, andconsiders it its task, while applying export controls, to(also) take into account the concerns and wishes of theindustry.The bilateral launch trade agreements do notprejudice these controls on U.S. satellite exports. Thismeans that each U.S. satellite cleared for Chineselaunching under the provisions of the launch tradeagreement, still needs an export license before it can beshipped to China. The U.S. administrations of bothReagan, Bush and Clinton have routinely approvedsuch licenses, whether the controlling agency cameunder the State Department or Commerce: from 1989Commission’s competence to conclude such agreements.9 See National Space Policy, Fact sheet. The White House,National Space and Technology Council (Sep 19, 1996),Commercial space guidelines, para. 5.10 See Council Regulation (EC) No 3381/94 (Dec 19,1994) andCouncil Decision 94/942/CFSP (Dec 19, 1994), e.i.f. Jul 1,1995, OJ L367 of Dec 31, 1994, and amendments.

EXPANDING GLOBAL LAUNCH SERVICES 41to February 1998, a total of 13 case-by-case approvalsfor 20 satellite projects were granted.11The China affair has in the meantime resulted inlegislation, which w.e.f. March 1999, returned exportlicensing of commercial communications satellites tothe State Department. Where Congress found thatnational security had been compromised by at leastsome of the launches of U.S. satellites on Long Marchand, generally, felt that trade interests and traderelations had received too much benevolent attention atthe expense of national security, the respective Act,both in content and in spirit, clearly gives a higherpriority to the U.S. national security interests than totrade.This effectively removes China from the list ofreliable and predictable launch service providers forlaunches involving U.S. satellites, including non-U.S.satellites with State Department-controlled 'sensitivetechnology' components: the latter creates acomplication for satellite manufacturers from e.g.Europe and Japan which use such components. Thoughthese countries own export controls may in practiceallow the sale to, (and/or) the launch by China ofsatellites, U.S. controls on U.S.-manufactured satellitecomponents may form an impediment to the export ofthe respective satellites to China. Apart from thusaffecting the launch customers, this may create seriousbilateral trade conflicts between the U.S. and thecountries concerned.This primacy of national security also means thatthe question of the expiration or extension of therespective bilateral launch trade agreement has largelybecome moot, as the underlying export legislation andthe strict application thereof override the former’provisions. And, as suggested earlier, (the spirit of) thisCongressional legislation cannot but also affect the U.S.administration’s attitude towards Russia and the11 Each project may involve more than one satellite, and some ofthese satellites were bought by China and not launched for athird party, see China: possible missile technology transfersfrom U.S. satellite export policy - background and chronology,CRS Report for Congress, 98-485 F (Aug 13, 1998). Theseapprovals took the form of Presidential waivers of TiananmenrelatedCongressional bans on exports of, inter alia, satellites toChina.Ukraine, the other ‘controlled’ launch providers servingU.S. satellite exporters.This national security vs. trade interests dilemmais difficult to solve: both interests may be equallylegitimate and worthwhile serving. At the same time,the national security-inspired actions of one countrymay have a disproportionate effect on a major globalindustry and on the legitimate trade interests of othercountries. This creates responsibilities which go beyondnational borders. We will come back to that aspectlater.One other policy/practice, which could beconsidered an impediment to “free and fair trade incommercial space launch services” should be mentionedand briefly reviewed.Government procurement of launchservicesThe practice of governments to reserve the right toexclude their procurement of goods and services fromcompetitive international bidding is widely spread andgenerally accepted. The U.S., for example, has a socalled“Buy American Act” since 1933, which directsfederal agencies to procure articles, materials andsupplies from American sources. U.S. government airtravel, as a rule, takes place with U.S. licensed airlines.Many other countries have similar policies andpractices. In the field of launching, neither the Chinesenor the Russian authorities so far allowed theirgovernment satellites - whether civilian or military - tobe launched by foreign launch providers. TheConvention establishing the European Space Agency(ESA) of 1980 requires that the Agency, when definingits missions, shall take into account the launchersdeveloped within the framework of its programmes, orby a member state, or with a significant Agencycontribution, and“shall grant preference to their utilization forappropriate payloads if this does not present anunreasonable disadvantage compared with otherlaunchers or space transport means available at the

42 EXPANDING GLOBAL LAUNCH SERVICESenvisaged time, in respect of cost, reliability andmission suitability.”Additionally, the States participating in the Arianeproject, in the same year made a commitment on thepreferential use of the Ariane launch vehicle similar tothe above treaty provision, both in respect of ESAactivities and of national space activities, and promisedto support such use in the framework of theinternational programmes in which they participated.The U.S. Federal departments and agencies abideby a Presidental policy of 1990, confirmed at lateroccasions, that“U.S. government satellites will be launched on U.S.manufactured launch vehicles unless specificallyexempted by the President.”The Commercial Space Act of 1998, dealing, interalia, with the same ‘fly U.S.’ subject, does not use thecountry of manufacture of the launcher as a criterion,but the nationality of the launch provider:“Except as otherwise provided in this section, theFederal Government shall acquire space transportationservices from United States commercial providerswhenever such services are required in the course of itsactivities. To the maximum extent practicable, theFederal Government shall plan missions to accomodatethe space transportation capabilities of United Statescommercial providers.”12Though the purpose of the above U.S. andEuropean provisions is basically the same, there areinteresting differences in practice and in practicaleffects.• Traditionally, the U.S. government market hasbeen considerably larger, in number of12 See Commercial Space Act of 1998, P.L. 105-303 (HR 1702),Title II - Federal acquisition of space transportation services,Sec.201-206. A U.S. commercial provider is defined as “acommercial provider, organized under the laws of the UnitedStates or of a State, which is (A) more than 50 percent ownedby United States nationals; or (B) a subsidiary of a foreigncompany..”, with category (B) subject to a number of specificstringent criteria.launches and value, than the European marketof ESA and national member statesgovernment launches. (Only the Russianmarket of civilian and military launches cameanywhere near the U.S. total). Data from theabove FAA Report show the following figuresfor 1998:CommercialNoncommercialU.S 17 19 36Russia 5 19 24Europe 9 2 11China 4 2 6Totallaunches• Neither ESA nor the individual ESA memberstates or the Ariane participants havescrupulously adhered to the ‘Ariane preference’commitments. In practice, ESA madeexceptions to the rule when faced withoperational or financial difficulties.Additionally, some member states feel free touse the cost level of the Ariane, compared to itscompetitors’, or the (semi-)privatized status ofits telecom agency as an argument for choosinga competing foreign launch provider. Andregional European space organizations likeEutelsat and Eumetsat felt some commitmentbut no obligation to use the Ariane.By contrast, the U.S. government agencies so farhave felt obliged, by law and policy, to use domesticlaunch vehicles and launch providers, and have actedaccordingly. An additional factor supporting the U.S.firmness in this respect is the availability of alternativedomestic launch providers: in addition to the SpaceShuttle and the Air Force- operated Titan, two privatecompanies, Boeing and Lockheed Martin, may help out;and for LEO launches and smaller payloads, a thirdprivate company, Orbital Sciences Corporation,provides the Pegasus and Taurus launchers.The overall effect of the above regulations andpractices, based on a combination of national security

EXPANDING GLOBAL LAUNCH SERVICES 43and competitive considerations, is that a sizeable part ofthe total global launch market is not open tointernational competition, to the disadvantage, ofcourse, of the excluded launch providers, but in the endalso of both the respective governments and the privatecustomers.Effects of the present regulatoryenvironment on the globalprovision of launch servicesIn the foregoing, a few observations on the abovesubject have already been made. We will limit ourselveshere to a brief review of some additional examplesinvolving cooperation and competition between thevarious launch companies. Cooperation between launchproviders of different nationality has so far beenlimited. A few examples of such arrangements:Lockheed Martin and the Russian manufacturers ofthe Proton launcher, Khrunichev and Energia, jointlymarket the Proton through a U.S.-based firmInternational Launch Services (ILS). This arrangementhas had considerable advantages for both parties.Lockheed Martin added a reliable heavy-lift launcher toits Atlas and Titan launch vehicles, positioning itselfstrongly in the international market. The Russianlaunch firms not only got American international salesexperience to work for them but also the interest of thelatter in - and the ensuing domestic lobbying effortsfor - having the restrictions of the U.S.-Russian launchtrade agreement lifted or at least further liberalized.Boeing in the mean time took over McDonnellDouglas (MDD) and thus became a launch providerwith MDD’s successful medium-lift Delta launchfamily. To also enter the heavy-lift launch vehiclemarket, Boeing concluded an agreement with a Russian,Ukrainian and Norwegian firm to launch the UkrainianbuiltZenit from a movable platform in the PacificOcean. This project, Sea Launch, has already receivedthe support through a bulk launch order from Hughes,and is at the time of writing close to its first commerciallaunch.Both arrangements involve an American companyselling foreign launch vehicles, which is rather neutralfrom a U.S. missile/launcher export control point ofview. However, both U.S. companies have a clearinterest in guaranteeing, both vis-a-vis the insurers andthe customers, the reliability of the launch vehiclesoffered. That potentially raises transfer (“export”) ofsensitive U.S. know-how concerns on the part of theU.S. government, and entails State Department controlson all discussions between the partners which couldamount to such transfers. The ‘China affair’ has led toincreased awareness and sharper controls, delaying theprogress of the cooperation and the furtherliberalization of the applicable launch trade agreements.Since a few years, Israel has been offering its -partially successful- Shavit launch vehicle to the U.S.for the launch of government payloads. At the sametime, to overcome the handicaps of a small, largelylandlocked territory to launch from, it requestedpermission to perform these launches from U.S. launchfacilities. (The U.S. government, true to its nonproliferationand export control policies, had for yearsdelayed, but not been able to prevent, the developmentof this new launch vehicle). Recently, however, the U.S.Coleman Research Corporation has been able to builda Shavit-based launch vehicle with sufficient U.S.content to qualify, under the above fly U.S. policy, asa U.S. launch vehicle which can be used for the launchof government payloads. Coleman has in the mean timebeen selected, together with Orbital SciencesCorporation, to perform launches for NASA.13Brazil's development of an indigenous smallsatellite launch vehicle (VLS-1) started in the early1980's, for the purpose of having independent access tospace, a consideration that also underlay Europe’sdecision to build the Ariane. The construction of theVLS-1 was impeded, through the years, by MTCRbasednational controls complied with by both U.S. andl3The LK-0 launcher is being developed in the U.S. jointly byColeman Research and Israel Aircraft Industries; it has notflown yet, but the Shavit has been launched four times with onefailure. The NASA program concerned involves 16 future smallpayload launches valued at USD 400 million, see Space News(Nov 2, 1998) at 1 (‘P egasus, Shavit win big, but NASA shunsAthena”).

44 EXPANDING GLOBAL LAUNCH SERVICESEuropean component manufacturers. In 1995, Brazilenacted domestic missile/launcher export controllegislation and joined MTCR. The expected increase inlauncher development assistance on the part of the U.S.or Europe did not materialize, and Brazil had to turn toRussia for the completion of its launch vehicle. Thefirst flight in November 1997 failed, but Brazil isdetermined to turn the project into a success, also in thecommercial/economic sense of the word. In thatconnection, its own Alcantara Equatorial launch baseis a valuable asset which could form part of a widerspace cooperation with another launch technologypossessing country with complementary needs, such asIsrael.A particularly interesting case is India, a countrywith both a military missile program and an ambitiouslauncher development industry. India was already in1980 the seventh country to orbit a payload on anindigenous launch vehicle. It markets a Polar SatelliteLaunch Vehicle (PSLV) for commercial LEO launches,and has been developing a heavier-lift launch vehiclefor GEO launches. Originally, India concluded acontract with Russia to obtain the necessary rockettechnology, but MTCR-based protests on the part of theU.S. resulted in the Russian assistance being reduced tothe delivery of engines without the technology to buildthem. This only increased India’s determination todevelop its own engine independently of uncertainforeign assistance. India’s nuclear tests in May 1998led to export sanctions imposed by the U.S., involvingboth ‘arms’ and dual-use goods and technologies. Thisdid not (yet) affect the cooperation betweenArianespace and its Indian counterpart AntrixCorporation, which provides for the mutual marketingof surplus capacity for small satellites on each other’slaunch vehicles. However, the U.S. controls wouldstand in the way of any Indian launches of U.S.satellites, whether contracted by Arianespace or byAntrix. India is neither a party of the WassenaarArrangement nor a MTCR member: the latter will be anadditional factor hampering launcher developmentcooperation with MTCR members.The - possible - involvement ofinternational organizations andinstitutionsSpace activities have in common with otherinternational/transborder activities of states or privatecompanies that they are regulated by various nationaland international institutions and agencies. A goodexample is satellite communications, the technicalaspects of which are primarily governed by rules andregulations of the International TelecommunicationUnion (ITU), whereas international trade and marketaccess issues are increasingly addressed by the WorldTrade Organization (WTO). Global navigationsatellites, so far, which are used for aviation purposeswill necessarily have a form of International CivilAviation Organization (ICAO) involvement. And otheruses may bring additional (international) organizationsinto play.An interesting question is which internationalorganization or agency, if any, would be qualified todeal with the launch services industry. The emphasis on‘if any' stems from the conviction that internationalregulation should only then be considered, if the partiesconcerned cannot solve their problems of transnationalproportions on their own or if the international issuesand interests concerned should not or cannot be left tothose parties, including the individual States concerned.Launching or space transportation is a spaceactivity which serves both military and civilianpurposes. The activity itself may be of a clearly militarycharacter, e.g. when the payload is a weapon of massdestruction. The launch vehicle may also carry amilitary reconnaisance (‘spy’) satellite, which is lessoffensive, but still a use of a military/national securitycharacter. A communications satellite built and used forexclusively sensitive military communications wouldfall within the same category.Governments will require total national control overthe launch and the payload, and internationalcompetition which could lead to the satellite beinglaunched by foreign launch companies will not beconsidered an acceptable option. Unless, perhaps, theforeign launching State is member of the same military

EXPANDING GLOBAL LAUNCH SERVICES 45alliance for the (part-) benefit of which the satellite islaunched, e.g. NATO. It is clear that, where thelaunches concern payloads with unequivocally militaryor other national security uses, the regulation or deregulationthereof is something that can only be dealtwith within the membership of the military allianceconcerned. And no other international organization orinstitution will be seen as qualified to deal with thematter.But, the launch of government payloads of acivilian character is in principle different, as a possiblenational security concern can only be based either onthe premise that the government satellite-foreignlauncher interface as such may improve the reliabilityof that foreign launcher and that such increasedreliability is, or may produce, a national security risk oron the assumption that any government satellite of acivilian character contains sensitive technology thatshould not fall in the hands of some foreign launchproviders. One may question whether those nationalsecurity concerns in the end are sufficiently serious tojustify keeping all international competition away fromthis part of the government launch market.On the opposite side of the launch payloadspectrum (going from national security-sensitivepayloads to national security-neutral ones) are thelaunches of private scientific or commercial satelliteswith no possible military use whatsoever: satellites forastronomy, space tourism, space burials etc., a smallmarket indeed, but one which may be open tointernational competition without national securityconcerns, or satellite export controls based thereon,standing in the way of any launch provider, whetherdomestic or foreign, being selected by the satelliteowner/user concerned. It becomes a large market, withmore nations, industries and commercial interestsinvolved if we add private commercial communications,meteorological and (other) remote sensing satellites.I f there are no demonstrable national securityaspects involved in the launch of the latter payloads, therestriction of international competition, in the form oflaunch trade agreements or other discriminatorypractices, becomes a trade restriction, and theinternational organization qualified to discuss suchrestrictions would be the World Trade Organization(WTO). It is interesting to note in this connection thatthe European Commission, during the Uruguay roundof trade in services negotiations, proposed to the U.S.to make launch market access commitments under theGATS in order to liberalize the international trade inlaunch services. This did not materialize. The presentsituation is that the U.S. government, in view of theexistence of the bilateral launch trade agreements, hadto formally exempt launch services from the applicationof the MFN principle (which forbids discriminationbetween foreign providers), to allow for thecontinuation of the restrictions in force.14The GATS principles do not apply to governmentprocurement. In fact, a separate plurilateral Agreementon Government Procurement of 1994 (GPA) aims atintroducing the liberal trade principles of GATS intothis traditionally jealously guarded reserved area.Government procured launch services were however,excluded from the application of the GPA by allrelevant States, including the U.S.As we have seen in the previous paragraphs, allmembers of the Wassenaar Arrangement control theexport of commercial communications satellites asdual-use goods. The U.S., the most importantmanufacturer of satellites and launch vehicles,considers the launching of commercial communicationssatellites sufficiently national security-relevant to applyexport controls with varying strictness to a number ofcountries with commercial launch industries. The newState Department controls, in place since March 1999and based on the qualification of these satellites as‘arms’, do not bode well for the chances of launchservices being liberalized through adaptation of theWassenaar criteria, let alone through inclusion inGATS or GPA. At the same time, more treaty-basedcertainty about the free and permanent availability ofboth domestic and foreign launch services is of crucialimportance to global telecommunications, and anyunilateral interference with the free use of presentlaunch providers may threaten the continued operationaland commercial viability of that important customer.Similarly, an environment in which the entry of new,innovative, players into the launch market, assisted by14 See Filial List of Article II (MFN) Exemptions (U.S.) (Apr15, 1994)

46 EXPANDING GLOBAL LAUNCH SERVICESinternational launch cooperation, is stronglydiscouraged, irrespective of the peaceful character ofthe project, is one that, in the interest of the samecustomers, deserves to be challenged within the MTCRgroup of countries, but not only there.The question does becomes one of finding the rightforum for discussing this apparent incompatibility ofnational security and international trade, in the light ofits short and long term effects on the growth andsophistication of the international launch industry andon the well-being of the global customers who dependon the former’s services.Undoubtedly the WTO GATS discussions, whichresume in November 1999 in Seattle, provide a forumfor discussing the trade-related aspects of the issue(which discussion may, of course, get uncomfortablyclose to a door saying “national security: notrespassing”!).Could UNCOPUOS play a role?Not, it is submitted, as a (de-) regulator of launchservices, nor as a judge of what is a real nationalsecurity concern and what is not. Two other aspects ofUNCOPUOS’ work justify die Committee’s possibleinvolvement in the discussion:First, the Committee, inter alia through itsScientific and Technical Subcommittee, has anunparallelled experience in promoting internationalcooperation in the peaceful uses of outer space, and istherefore well-positioned to contribute to a review of theadvisability and feasibility of international projectsinvolving launch cooperation.Second, the Committee, inter alia through its LegalSubcommittee, is not only draftsman and guardian ofa series of space treaties and other instruments dealingwith the legal aspects of space activities, it is also aboutto engage in an analysis of whether, and if so, to whatextent, this body of space law and policy is stilladequate in regulating the space activities of States andother entities governed by the respective rules,particularly in the light of the explosive growth ofprivate commercial space activities.In that connection, it would make practical sense torefrain from an approach, which has enthusiastic spacelawyers (like the author of this report) looking for gapsin the various treaties, and, instead, start a dialogueinvolving in particular the industries and organizationsengaged in private, commercial space activities, withthe purpose of reviewing and analyzing the way inwhich the present regulatory regime affects their presentand future operations.In that dialogue, it would be entirely appropriate toalso include for review other regulatory instruments,such as the ones treated above, which influence thedevelopment of the trade in launch services.It should be emphasized that this exercise is notmeant to create new standards or new instruments, butrather to discuss - without losing sight of what thetreaties and other applicable instruments tried toaccomplish - from a practical angle, the requirements ofmodern-style exploration and use of outer space, bothtoday’s and tomorrow’s.Concluding remarksIn the foregoing, many aspects of launching as a spaceactivity have not been discussed, notwithstanding theirimportance for the customers, the regulators and otherparties concerned. Time, space and the perceivedpatience of the readers were limiting factors.Nevertheless, there is one issue that deserves to bebriefly mentioned at this stage, namely that of the safetyof launching/space transportation, on the ground(spaceports), in airspace and in outer space.With the increase of launch activities, caused by theincreased use of the low-earth orbit for LEO satellitecommunications conglomerates, the joint use of airspace by aircraft and launch vehicles may become amatter of safety-related concerns, particularly with theadvent of re-usable launch vehicles (RLV’s), now underconstruction in the U.S. and the increasing use of airlaunchedvehicles such as the Pegasus. This may be anissue where the experience of both national licensingagencies (FAA) and regional institutions (JAA),Eurocontrol, as well as IGO’s, dealing with safety,

EXPANDING GLOBAL LAUNCH SERVICES 47security and other operational issues such as ECAC(Europe) and ICAO (worldwide) can play a role. TheFAA is already working on the concept of a NationalAirspace System (NAS), aimed at having a seamlessand fully integrated control of space and aviationoperations in national airspace by the year 2005, theSpace and Air Traffic Management System (SATMS):“In the near 2005 timeframe, the number of U.S.space transportation operations will have increasedsharply, reusable launch vehicle operations will havebecome commonplace, and the demand for access to thenation’s airspace by aviation users (civil, military,general) will have significantly increased. With thesechanges on the horizon, the need for smart, rapidevolution towards realization of the SATMS “vision”,in the 21st century, becomes paramount.”15There are various good reasons for not gettinginvolved in a discussion on the matter of the safety ofairspace, let alone on international regulatory attentionto the issue:The U.S. is the only country so far with anairspace that may become cluttered by the jointuse of RLV’s and aircraft, both because of theexisting Space Shuttle and the advanced stateof RLV development in combination with thelocation of the airports and spaceports used;• The expendable launch vehicles are notdesigned to return to earth at all or the remainswill bum up in the atmosphere and/or make acalculated crash landing on the empty highseas;• The Space Shuttle and the future RLV’s aredesigned and operated so as to land in theirown national territory and thus only traversenational airspace: ICAO safety rules andregulations came about because aircraft ofmany different nationalities enter or fly throughforeign airspace or land at foreign airports;• Involvement of an international regulatorybody such as ICAO, including its decisionmaking processes, could be viewed by the few15 See Space and Air Traffic Management System (SA TMS),FAA AST strategic plans,launching States possibly affected as a measureof overkill not warranted by the issue.Still, there would appear to be an argument for thelatter organization to be at least kept informed about theabove national regulatory initiatives:• Aircraft of foreign nationality do use (part of)the air space which RLV’s will also operatethrough and the worldwide safety of aviation,involving global standardization andpromulgation of safety standards andprocedures, can be considered part of ICAO’sinstitutional responsibilities;• RLV’s may in future go where the customer isand take of and/or land in foreign countries;this would also require a standardization ofrules and procedures.The above brief account should not be interpretedas a call for ICAO’s active involvement in the matter,but as an invitation to further study theramifications/consequences of this new issue for theaviation industry.It may also be seen as an example of another spaceactivity, next to the use of global navigation satellitesby aviation, which requires the attention of both airlawyers and space lawyers.Commentary PaperCatherine BaudinEuropean Space AgencyLegal AffairsIn his document, H. Peter van Fenema analyses thechanges taking place in the launch services sector,identifies the causes and obstacles and proposes somepossible remedies.The starting point is the observation of the rapidincrease of the commercial part of the marketassociated to the emergence of constellations placed in

48low earth orbit. This commercial part of the marketencourages us to look at launch services not any moreat the national or regional level but also at the globallevel.On the other hand the global launch services are notdriven by the free market but rather by a series of rulesoften associated to national security and nationalinterest. As a matter of fact, the weight of governmentsis still heavy in this sector of activities both becausegovernments are still investing largely in developmentof launch vehicles and because they are a majorcustomer for launch services.The situation worldwide is therefore complex andthe author has attempted to analyze a complicated,sometime contradictory and constantly evolvinglandscape. The paper is well documented and tries to beexhaustive even though some aspects are missing, suchas the role of insurance and the role of therestructuration of industry leading to "vertical" giantsable to sell at the same time launch services, satellitesand services associated to satellites. These aspects canbe additional obstacles. Japan is also surprisinglyabsent in the paper, while it is already a significantplayer and partner in the field of launchers.Based on these considerations I would like to makethe following general comments:1. It is not easy to draw a line between launchers andother space related activities since:• launchers on the one hand constitute a worldapart in space activity, not only because of thehigh level of technical expertise needed todesign and to operate these vehicles but alsoeven more because of the special link existingbetween the launcher technology and themissile technology which makes them a verysensitive and highly confidential subject,• and on the other hand launchers also form anintegral part of space activities where mostdebates regarding national security versus freemarket are the same for launchers, satellitesand associated services. For instance, as it wasalready underlined by the author in his paper,EXPANDING GLOBAL LAUNCH SERVICESthe recent US export control measures concernnot only launchers but also satellites.2. The line between governmental and commerciallaunch activities, as referred to bv the author in hispaper, is not easy to define since:• the commercial success of a launcher alleviatesthe burden of governments in maintaining anindustrial and operational capability able toguarantee a continuous and reliable access tospace (this is for instance the case for Ariane);• reciprocally a governmental market which is acaptive market, at least in the United States,certainly supports the commercial success of alauncher;• more generally most of the space technologyapplications are of dual (civil/military) use, liketelecommunications, earth observation andnavigation.It is therefore very difficult to distinguish thedriving forces of the governmental and those of the nongovernmental/commercialactivities, especially since,despite the expansion of the commercial market, thegovernmental market still remains of the same order ofmagnitude as the one for the commercial market. Thatis why the role of governments in the field of launchersis still very important and will probably remain so inthe foreseeable future.3. This is why the "national security aspects" andthe "export control restrictions" applied forexample by the US administration are both thesame aspect of an overall US policy, namely theUS leadership in space activities, obviouslyincluding launch services.But protectionism has its limitations and can bedetrimental to industrial interests and competitivenessand therefore, the US policy encouraged the USindustry to become a launch operator of Russian orUkrainian launchers. This is the only slight differencebetween the governmental and the commercial marketin the US: the governmental market is reserved for the

EXPANDING GLOBAL LAUNCH SERVICES 49US launchers and the commercial market is orientedtowards the US operators.Therefore I would like to express my reservationregarding the comparison made bv the author betweenthe US policy regarding the launch of US governmentsatellites exclusively on US manufactured launchvehicles which has been made compulsory throughvarious legislative acts, and the European policyregarding the preferential use of the Ariane launchvehicle as stated in Article VIII of the ESA Conventionand in the Ariane Production Declaration, which is notcompulsory and which leaves the door open to otherchoices. As a matter of fact between the period 1981 -2008,75 European governmental missions have been orwill be launched by Ariane and 20 Europeangovernmental missions have been or will be launched byanother launcher than Ariane which represents apercentage of almost 30 % of the total 95 Europeangovernmental missions launched or to be launchedbetween 1981 and 2008. As stated by the author, "bycontrast, the US government agencies have so far feltobliged, by law and policy to use domestic launchvehicles and launch providers and have actedaccordingly".The restrictive US policy in the field of launchersis based on national security reasons regarding Chinawith the "China Affair" and is based on US leadershipconsiderations with respect to Europe.4. So after having made these remarks, I would askwhat is the future of global launch services industryand the possible involvement of internationalorganizations and institutions?In the immediate future and considering theimportance of the government involvement in the globallaunch services, I would think that only concertedactions between the governments and industrialoperators might be the way to alleviate the heavyconsequences of this domination by governments on thefree market. A good example of this type of action isthe very recent (June 1999) lobbying by Arianespaceand the ESA Member States in the United States within particular the release to the US press of a "whitepaper" issued by Arianespace, entitled "EuropeanSatellite Services and the US Export controls", whichreacts to the recent changes in the US Export Controlregime resulting from the so called "China Affair" andwhich might in its view affect the normal interactionbetween launch providers and satellite builders.Meanwhile I share the view of the author regardingthe proposal to start a dialogue within the frame of UNCOPUOUS involving in particular the industries andorganizations engaged in private, commercial spaceactivities, with the purpose of reviewing and analyzingthe way in which the present regulatory regime affectstheir present and future operations. This type of forumwould certainly contribute to improve the mutualunderstanding of the new requirements of the globallaunch services and their potential consequences for allcountries looking for taking benefit of the application ofspace technologies.However it is only when the commercial marketwill have become significantly larger than, thegovernmental market, that global launch services havea chance to reasonably evolve towards a free market.This important expansion of the commercial market iscertainly linked to a dramatic reduction of launch costs,and therefore probably to the existence of anoperational reusable launch vehicle. The developmentof such a vehicle relies itself on significanttechnological progress and therefore on heavyinvestments coming from governments themselves.This might not happen in the near future but whenthis will occur then the questions of internationalcooperation and of safety in space referred to by theauthor in his conclusion, will certainly become crucialand meanwhile the possible debate within aninternational forum would certainly have proven useful.

50 EXPANDING GLOBAL LAUNCH SERVICESCommentary PaperJohn B. GanttAttorney in Private Practice of SpacerelatedLaw16First, I want to congratulate Prof. Peter van Fenema onan excellent and thorough discussion paper for thissession of the workshop. His paper affords a broadoverview of the subject, identifies a number of issuesthat merit further study, and makes severalrecommendations, some of which I find myself insubstantial agreement.IntroductionMy comments are from the current perspective of thecommercial launch market and the commercial launchoperators whose launch activities intersect in somemanner the jurisdiction of the United States of America.For example, this intersection may occur either becausethe operators are U.S. citizens or are conducting theirlaunches from the territory of the United States, or thepayload or major components thereof must be exportedto a foreign launch site from the United States.The United States has developed a considerablebody of laws and regulations implementing, asmunicipal law, its obligations under the 1967 Treaty onthe Peaceful Uses of Outer Space (“the Outer SpaceTreaty”) and the 1972 Liability Convention. In the caseof commercial launches, these consist primarily of theCommercial Space Launch Act of 1984, as amended,(“the CSLA”)17 and the regulations issued pursuant tothe CSLA by the Department of Transportation,Federal Aviation Administration’s Office of theAssociate Administrator for Space Transportation.18 Inaddition, the U.S. State Department maintains a registryfor purposes of compliance with the U.S. obligationsunder the Registration Convention. However, it shouldbe noted that this national registry is not sufficient forthe purposes of filing liens and security interests (i.e.,notification to the world of creditors’ rights) pertainingto commercial spacecraft or their components. This isa major deficiency in present U.S. municipal law aswell as private international law, given the internationalnature of orbiting spacecraft. Thus, to the extent thegood offices of COPUOS can be lent to the effortspresently underway (e.g., by UNIDROIT) to developharmonious practices in this regard among nations, itshould certainly be welcomed.In addition, the United States has recently enactedmajor legislation (and has further proposed changesunder active consideration by the Congress) concerningthe matter of export licenses in the case of U.S.spacecraft, components, and technology. These havesubstantially altered the situation of obtaining exportlicenses with respect to commercial communicationssatellites, and threatens to cause delays with respect tothe contracting for and launch of such satellites.Also, some recent business developments suggestthere may be a need to re-examine global launchforecasts, particularly as they apply to launches offuture (e.g., second generation) low earth orbit (“LEO”)communications satellites. (Subsequent to giving myWorkshop presentation, IRIDIUM has been placed inbankruptcy by some of its bondholders as well asIridium, itself, and has sought the protection of thebankruptcy laws for the purposes of financial reorganization.Additionally, ICO has also recentlyexperienced difficulties of a financial nature.)1916 Partner, Mizrack & Gantt, Counsellors at Law, 601 13thStreet N.W., Suite 500 North, Washington D.C. 20005.Copyright, 1999. This document was prepared from the notesused in making my presentation at the workshop session.Should a reader have any questions regarding this commentary,I can also be reached by telephone (202-628-1717); fax (202-628-1919); or e-mail: johngantt@aol.com orjbgantt@ibm.net.1749 U.S.C. § 11001 etseq.1814 Code of Federal Regulations (“CFR”) Chapter III.19 See, e.g.. Iridium: Bom On A Beach But Lost In Space,Financial Times, August 20, 1999, at 16; Iridium Files forBankruptcy Protection After Its Bondholders Submit Petition,The Wall Street Journal, August 16, 1999, at A4; IridiumDefaults; ICO Struggles, Aviation Week & Space Technology,August 16, 1999, at 27.

EXPANDING GLOBAL LAUNCH SERVICES 51The MarketTraditionallyIn the United States, the launch market had until 1996been driven by the requirements of the U.S.Government for launch services. Government fundinghad traditionally financed launcher R&D andproduction and the establishment and operation of thetwo major launch ranges in the United States.Commercial spacecraft, beginning with INTELSAT’sEarly Bird in 1965, were launched on a “costreimbursable” basis by NASA utilizing, at first,expendable launch vehicles manufactured for NASAand the Air Force under government contracts and laterthe Space Shuttle.20 It was not until the mid-1980s, andespecially after the Challenger Accident in January1986, that a commercial launch market first developedin the United States. In Europe, Arianespace begancommercial launches in 1984 after several years of testand demonstration flights by the European SpaceAgency. President Reagan’s decision in August 1986to remove from the Space Shuttle’s manifest essentiallyall of the planned commercial spacecraft launchesmeant that these off-loaded spacecraft would have toseek launches on commercial terms from the U.S.launcher manufacturers and Arianespace. Even then,the U.S. companies seemed hesitant to proceed untilamendments to the CSLA in 1988 were in forceaffording them a comprehensive risk sharingmechanism, including the possibility of government“indemnity” for third-party liability in the case of acatastrophic accident. Also, the U.S. commerciallaunches continued to heavily leverage the governmentlaunch requirements through cost-sharing mechanismssuch as “direct cost” reimbursement for use of20Interestingly, hindsight suggests that the United States missedan early opportunity to develop a commercial, expendablelauncher industry in the early 1970s when the FederalCommunications Commission commenced licensing variousU.S. companies to construct, launch and operate U.S. domesticsatellite systems. Instead, the Government adopted the policy ofreliance on the Space Shuttle as the primary U.S. launchcapability and commenced the gradual phaseout of itsexpendable launch capability. Europe took advantage of thisU.S. reliance on a single launch system and successfullydeveloped and commercialized the ARIANE launcher.government launch facilities and range support. Thisform of additive cost reimbursement essentially becamea “but for” reimbursement requirement under which thecommercial launch provider is required to reimburse theGovernment only for those identifiable costs which, inthe absence of any commercial launch activity, theGovernment would not have incurred. Furthermore, aspolicy decisions were made to allow U.S.-origincommercial payloads to be launched on Chinese (1989),Russian (1993) and Ukrainian (1996) expendablelaunch vehicles, the U.S. required those governments toenter into launch trade agreements with stated quotasand pricing restraints so as to avoid market disruptionto the detriment of commercial launch providers inwestern market economies.CurrentlySince 1996, the situation has reversed itself as concernsthe relative numbers of U.S. Government launchesversus commercial launches. Due in large measure tothe end of the Cold War, the number of Governmentlaunches per year are increasingly less than the numberof commercial launches licensed by the FAA from theUnited States. (Note: Launches arranged byInternational Launch Services, the Lockheed Martin -Russian joint venture, are not licensed by the FAA sinceLockheed Martin is neither the operator of the launch orthe launch facility. On the other hand, launchesconducted by the four-party Sea Launch venture arelicensed by the United States, pursuant, inter alia, to arequirement in the U.S.-Ukraine launch services tradeagreement.)Furthermore, the U.S. Government as part of itsoverall shift to procurement of commercial launchservices, seeks to leverage this increasing commerciallaunch demand in order to obtain lower cost launchesfor its government satellites. This is particularlyevident in the present Evolved Expendable LaunchVehicle procurement program by the U.S. Air Force,which contracted in October 1998 separately withBoeing (DELTA 4) and Lockheed Martin (ATLAS 5)to develop and operate competing EELV launchsystems with LEO, GTO and GEO capabilities tolaunch U.S. Government payloads and to compete forcommercial launches in the international market. In this

52 EXPANDING GLOBAL LAUNCH SERVICESconnection the Government awarded $500 million toeach company for the development of its EELV system.In addition, the Air Force entered in to EELV launchcontracts with Boeing ($1,378 billion for 19 launches)and Lockheed Martin ($649 million for 9 launches) aswell as previously having funded pre-developmentefforts by these companies and several otherunsuccessful competitors. The goal of theGovernment’s EELV policy is to reduce launch costsinitially by 25 percent and eventually by 50 percent andthereby enhance these U.S. companies' ability tosuccessfully compete in meeting the increasinginternational demand for commercially-furnishedlaunch services. Also, the policy makers anticipate thatthe success of these EELV systems will minimize U.S.dependence on foreign launch systems. Moreover, theirscheduled entry into service in 2001 coincides with theexpiration of the launch services trade agreements withChina, Russia and the Ukraine, including the currentlyanticipated removal of the launch quota and pricingconstraints.At the same time the U.S. Government has begunto upgrade its major range and launch facilitiesinfrastructure under a planned program which whencompleted by the middle of the next decade is currentlyestimated to cost the Government $ 1.2 billion. The twoEELV contractors are also making significantinvestments of their own in various launch facilitiesupgrades.Market DemandThe projections as to demand for launch services,especially to LEO, have become less certain as a resultof recent market and financial developments. Theobstacles that have befallen IRIDIUM this year have“spilled over” in the form of concerns by the investmentcommunity as to the financial viability of LEO/MEOcommunications satellite systems generally. Foremostamong these are the failure of IRIDIUM to comeanywhere close to meeting its publicly-stated customerand revenue projections, and the rapid pace with whichterrestrially-based cellular and wide-band voice anddata systems have come to market, including theincreased capability for business travelers to “roam”internationally. This has raised questions within theinvestment community as to whether there is evensufficient demand for one of these systems to befinancially viable. The “jury” is still out, butundoubtedly one of the important “pieces of evidence”will be the introduction and reception given this Falland Winter to GLOBALSTAR by its targeted customermarket for voice and low-speed data. Anotherevidentiary fa c t will be the outcome of the financialrestructuring negotiations between IRIDIUM and itsinvestors and ICO and its investors. Presumably, thelessons learned will be studied most carefully byTELEDESIC and others in formulating their futureplans and strategies.U.S. Legislation and RegulationsPrior to the advent in the United States of the provisionof launch services by commercial entities, the only lawsimplementing the Article VI, Outer Space Treatyobligation of the United States for “authorization andcontinuing supervision” of the activities of its nongovernmentalnationals in outer space were thosepursuant to which the Government licensed andregulated the launch and operation of U.S. commercialcommunications satellites.21Commercial Space Launch Act of 1984, asAmendedThe enactment of the CSLA expanded U.S. law tocover the “authorization and continuing supervision” ofcommercial launch activities in the territory of theUnited States and, extraterritorially, by U.S. citizens.The CSLA, in addition to its licensing and oversightprovisions, sets forth a comprehensive risk managementregime in the case of third-party liability. This regime,necessitated by virtue of the absolute liabilityresponsibility of the United States under the LiabilityConvention with respect to damage occurring other thanin outer space, is made up of three components:commercial insurance, an extensive system of cross­21 E.g., Communications Act of 1934, as amended, 47 U.S.C.Chapters 1-5; Communications Satellite Act of 1962, asamended, 47 U.S.C. Chapter 6.

EXPANDING GLOBAL LAUNCH SERVICES 53waivers, and in the case of liability in excess of requiredinsurance cover, the potential for the Government topay such excess amount up to a maximum of $1.5billion. In addition, the CSLA was amended in 1998 toinclude licensing jurisdiction with respect to re-entryvehicles.Launch of U.S. Government PayloadsPrior to 1990, U.S. law reflected a definite preferencefor the launch of these payloads on U.S-built andoperated launch vehicles. In September 1990, PresidentBush signed an executive order mandating that suchpayloads would only be launched on U.S.-built andoperated launch vehicles, unless the President decidedotherwise. This executive mandate was codified asstatutory law in the Commercial Space Act of 1998 .22This Act provides that with certain limited exceptions(e.g., Shuttle-unique payloads), the Government shallacquire space transportation services from “UnitedStates commercial providers”, and to the maximumextent practicable shall plan its missions toaccommodate the capabilities of such providers. Thedefinition of the quoted phrase, although quite complex,nevertheless clearly excludes foreign providers whichare primarily controlled by foreign governments, butmakes a limited exception in the case of U.S.-foreignjoint ventures that meet a number of specified criteria.Export ControlsLaunch vehicles and their technologies are and havealways been classified as munitions and carried on theU.S. Munitions List. Their export is controlled by theState Department Office of Defense Trade Controlspursuant to the Arms Export Control Act23 and itsimplementing International Traffic-In-ArmsRegulations (“ITARs”)24 and the U.S. obligations as aparty to the Missile Technology Control Regime(“MTCR”). The export of technical data ( a broadly22 42 U.S.C.A. §§ 14701, 14731 (1999 Pamphlet).232 2 U.S.C. §2751 e t seq.242 2 CFR Parts 120-130.defined term under the ITARs) as well as the furnishingof technical assistance relating to launch vehicles is alsocontrolled exclusively by the State Department.Likewise, until 1992, the export of communicationssatellites was controlled and licensed by the StateDepartment under the ITARs. Decisions as to whetherto license the export of Munitions List items,technology, technical assistance and technical datapertaining thereto, are made on the basis of nationalsecurity and foreign policy interests of the UnitedStates, and not on the basis of whether the export willpromote U.S. business and trade. Therefore, at theurging of U.S. spacecraft manufacturers who saw theincreasing potential for foreign sales of commercialcommunications satellites, the Bush Administrationmade a partial transfer of licensing jurisdiction to theCommerce Department in 1992 in the case of suchcommercial satellites, except for those satellites inwhich any one of nine specific technologies wasincorporated. In the latter case, jurisdiction withrespect to the entire satellite remained with the StateDepartment. The Commerce Department’s licensingjurisdiction is pursuant to the Export AdministrationAct of 1979 ( as amended and extended by executiveorder). Commerce includes as part of its licensingprocess consideration as to the economic effect on U.S.trade of granting (or denying) a license. However, theretention of jurisdiction by the State Department in thecase of any of the nine exceptions made this transfer toCommerce largely meaningless, since most advancedsatellites employed one or more of the ninetechnologies. Also, the transfer of technical data and thegiving of technical assistance remained under thejurisdiction of the state Department. Therefore, in 1996the President, at the behest of the satellitemanufacturers, transferred licensing jurisdiction withrespect to the export of the complete commercialcommunications satellite to the Commerce Department,including that technical data necessary to mate thesatellite with its intended launch vehicle (i.e., “form, fitand function” technical data). All other technical dataincluding design and manufacturing data was retainedunder the control of the State Department. In addition,changes were made in the administrative proceduresleading up to a decision on a license application so thatany disappointed department or agency could appeal thedecision to the President. Export jurisdiction with

54 EXPANDING GLOBAL LAUNCH SERVICESrespect to all other commercial satellites, e.g., remotesensingsatellites, remained entirely with the StateDepartment.However, as a result of the allegations made during1997 and 1998 of improper transfers of technology byHughes and Loral to the Chinese in connection with theattempted launches of certain of their respectivesatellites in China, and the subsequent investigation andreport by a special committee of the House ofRepresentatives (the Cox Committee Report),legislation was enacted in the Fall of 1998 transferringexport license jurisdiction with respect to commercialcommunications satellites back to the State Department,effective March 15, 1999. In addition, the legislationmandated increased controls with respect to suchexports, but specifically exempted from these increasedcontrols exports to member countries of NATO andtheir nationals and to non-NATO “major allies” of theUnited States (e.g., Japan, Australia, Israel) and theirnationals. The State Department was directed toproduce amendments to the ITARs implementing thislegislation. However, in doing so, the Departmentcreated a national security exception to the NATO andnon-NATO major allies specific statutory exception.This further exception, in turn, caused considerablecontroversy among the NATO allies as to its meaningand purpose and has yet to be satisfactorily resolved.In addition, considerable controversy resulted from theinclusion of a specific paragraph imposing StateDepartment licensing authority over exports oftechnical data and associated services to foreigninsurers and their brokers. This should have come as nosurprise given the fact that the export of such data andservices (i.e., technical assistance) with respect to anysatellite has always remained under the jurisdiction ofthe State Department (with the limited “form, fit andfunction” exception).2525 While as a general matter only a limited amount of spacecrafttechnical data (e.g., spacecraft mass, center of gravity) needs tobe transferred to the launch vehicle operator, the insurers beingasked to insure the risks of satellite failure need considerablymore information and data as to the satellite in order to properlyassess the risks in deciding whether to write the insurance and,if so, under what terms and conditions including premiumamount.Several bills currently awaiting final action in thisCongress contains provisions addressing this matterincluding, specifically, the issue of the StateDepartment’s exception to the statutory NATOexception. These proposed provisions, however, tend tosupport the State Department’s position. All of this haslead to considerable uncertainty as to U.S. export policyregarding commercial communications satellites,including exports for foreign launches of U.S.-builtsatellites or components. In essence, the “nationalsecurity” exception introduced by the StateDepartment’s implementing regulation recognizesexpressly, that which is implicit in the role ofgovernment, and, in the case of the United States, therole of the President; namely the duty to protect thenational security of the state and its people. Thedifficulty arises however when trying to determine whatconsiderations are encompassed by the phrase “nationalsecurity” and whether these include considerations oftrade and protection of the U.S. economy.26Conclusions andRecommendationsPossible involvement of internationalintergovernmental organizations (“IGOs”)in space activitiesI would note only that the major IGOs, aside from theUnited Nations, involved in space activities, e.g., theITU, ICAO and INTELSAT, were in existence beforethe entry into force of the 1967 Outer Space Treaty.26 For example, as part of the notification and certificationwhich the State Department is required by the AECA to give toCongress before it grants a license for the export of MunitionsList “defense articles or defense services” (i.e., technology,technical data, or technical assistance and services therefor)having a value of $50 million or more, is that the Department isprepared to license the export of the subject matter “havingtaken into account political, military, economic, human rights,and arms control considerations.” See, e.g., Notificationaddressed to the Speaker of the House of Representativesconcerning “the export of one Telstar commercialcommunications satellites to French Guiana for launch intoouter space”, 64 Federal Register 44571 (August 16, 1999).(Emphasis added).

EXPANDING GLOBAL LAUNCH SERVICES 55They have specific mandates entrusted to them whichare essential to the conduct of efficient and economicalspace activities. INTELSAT and to a certain extent theITU and ICAO also must deal with launch services(and the return of space objects ). Beyond that, thevery character of launch vehicles and the absolutenecessity, given present global circumstances, to controlthe proliferation of launch vehicle technology and data,places the control of launch services within the nationalsecurity umbrella of those states possessing suchtechnology and data. As regards the use of thesevehicles in furtherance of the goals expressed inArticle I of the Outer Space Treaty, the United Statesthrough NASA, whose charter includes the mandate tofurther international space cooperation, has entered intonumerous cooperative arrangements with othercountries, including non-launching countries, by whichthe latter share not only in the scientific data derivedfrom the payloads but also in many cases theresponsibility for producing various payload modulesand instrumentation. Other countries possessing launchcapabilities have done likewise. While there may alwaysbe room for improvement in such cooperativeundertakings, the fact remains that under currentgeopolitical circumstances, it is unlikely that nationswill cede control of their launch technology such as toan IGO established to provide launch services.Launch services and the WTOWhile none of the three countries with which the UnitedStates required launch services trade agreements is amember of WTO, the primary reason, I believe, that theU.S. insisted on the exception in the GATS and in theGovernment Procurement Agreement was to preservethe market for launch of U.S. government payloads forthe benefit of U.S. commercial launch providers to theexclusion of foreign providers. As noted, supra,President Bush’s September 1990 executive orderpreceded by several years the conclusion of theUruguay Round. I have always viewed this“protection” coupled with the requirement of tradeagreements in the case of China, Russia and theUkraine, as the U.S. Government’s “ace” in responseto what it has consistently maintained is subsidizationby foreign governments of their national launchproviders. Further, I would note that the GATT-94,which incorporates the provisions of the GATT 1947,includes the latter’s specific exception in the case of the“essential security interests” of a contracting party.Recommendations1. As concerns the provision of launch services, weneed to accept the fact that under the present globalcircumstances, the licensing of launch technology willremain tightly controlled. However, this does not meanthat full advantage cannot be continue to be made of“partnering relationships” between launching and nonlaunchingcountries. COPUOS should continue to workto encourage the furtherance of such arrangements.2. As for the issue of implementation in municipal lawof a state’s international treaty obligations with respectto outer space, COPUOS should establish and maintaina compilation of the various national laws in thisrespect. This would provide a ready reference to statesparty to Outer Space Treaty which wish to develop orexpand their national laws in fulfillment of their ArticleVI obligations as parties.3. COPUOS should use its good offices in ways thatcan help to bring about appropriate and harmoniousinternational and national laws with respect to theregistration of security interests for the protection ofcreditors’ rights in orbiting space objects and theircomponent, e.g., transponders.Commentary PaperJose Monserrat Filho27First of all, let me thank the coordination of thisWorkshop for the kind invitation to comment on27 Vice-President of the Brazilian Society of Aerospace Law(SBDA) and member of the Board of the International Instituteof Space Law (IISL). Visiting professor of Space Law at the Riode Janeiro University (UNI-RIO).

56 EXPANDING GLOBAL LAUNCH SERVICESProfessor Peter van Fenema presentation on“Expanding Global Launch Services”. It is indeed avery comprehensive, competent, interesting andprovocative paper as it should be appropriate andconvenient to be at this important International Instituteof Space Law event.Professor Peter van Fenema has showed us a realitywith two faces:1) On one hand, over the past five years we arehaving a rapid growth of the competition amonginternational launch providers for commercialcustomers worldwide;2) On the other hand, the competition betweenlaunch providers of different nationalities has so farbeen limited, and even worse, a sizeable part of theglobal launch market is not open to internationalcompetition.It means there is a very good tendency along witha tendency that should be corrected for the sake of ahealthy global launch services expansion.The challenging question here seems to be how touse political and legal means to review the impedimentsthat stand in the way of a more cooperative efforts inglobal launch services. We all certainly have no doubtthat the cooperation is an essential requirement if wereally want to encourage the appearance of morealternatives in global launch services.New alternatives in this field are quite necessarybecause:(a) We have a great demand - ’’unprecedentednumber of customers in science, communications andother industries clamoring to get their payloads intospace”, as wrote John Pike, a space programs expert,quoted by Professor Peter van Fenema;(b) ’The limited number of countries with a launchindustry creates a vulnerability of the industry ‘in toto’for disruption of services to their customers”, as alsostressed by Professor Peter van Fenema.He properly suggests that the technical problemsrelated to successive launch failures (includingin the USA) may be solved by means of internationalcooperation. This cooperation has been hampered by anumber of closed national concepts like militarystrategicbackground, national prestige, nationalsecurity and some foreign policy decisions. Theseconcepts very often bring us back to the time of the coldwar, which presumably should not exist anymore.According to Professor Peter van Fenema the spaceindustry, and particularly the launch industry, is subjectto, if not the victim of, this sort of national notconstructive factors.Let me make here a special mention to the BrazilianAlcantara Launch Center. Alcantara is currently beingprepared to host satellite launching services on acommercial basis, in association with interestedinternational partners. Its privileged geographicallocation and a set of measures adopted by the BrazilianGovernment put Alcantara Launch Center in acompetitive position in the market. However, Brazilfaces some difficulties in this way.The USA Government has sent a “non paper” to theItalian Government not recommending the use oflaunching services from Alcantara by the Italianenterprise FiatAvio, which is planning to launch theUkraine Launcher Ciclon from Alcantara.We don’t know exactly the reasons of this not sodiplomatic attitude by the Government of a nation withwhich Brazil has signed just in November 1997 anagreement to participate in the International SpaceStation.Anyway, it is undeniable that this kind of pressureis unacceptable and represents at least a infringement ofthe principle of free access to outer space by all nations,irrespective of their development degree.Professor Peter van Fenema also presents a suitableassessment of the undesirable effect of the MissileTechnology Control Regime (MTCR), which makes itextremely difficult for prospective newcomers to enterthe launch “business”. I agree with him: The unfriendlyenvironment to more countries with launch abilities andinnovative ideas in this field stifles progress and

EXPANDING GLOBAL LAUNCH SERVICES 57oligopolies the launch industry, both as a technologyand as a trade in services.All these obstacles, as emphasized by ProfessorPeter van Fenema, “affect the free choice of launchservice providers of different capabilities andnationalities; in other words: international competition”.Therefore, we can say that internationalcompetition as well as international cooperation in thelaunch industry still remains a big obstacle course,which of course holds back a more vigorous expansionof this fundamental sector of space activities.That is certainly why Professor Peter van Fenemais carefully in inviting us to deeply think about thedilemma of national security versus trade interests, andthe way to solve it in favor of “free and fair trade incommercial space launch services”. He rightly pointsout that “the national security-inspired actions of onecountry may have a disproportionate effect on a majorglobal industry and on the legitimate trade interests ofother countries”, and that “this creates responsibilitieswhich go beyond national borders”.We can see here the source of an abnormal andunadmissible ‘de facto’ situation when one country’snational law intends to be in force in and to othercountries without any agreement on this matter. Itseems that in the current global launch affairs it is notdifficult to detect the uncomfortable presence of someof extraterritorial national jurisdiction imposed, whichhas to be faced as a very negative factor in general andparticularly to the development of space activities by allstates.I agree with Professor Peter van Fenema that morecertainty about the free and permanent availability ofboth domestic and foreign launch services must bebased on an international treaty in order to assure anenvironment of stability and predictability, as well as toprevent unilateral and arbitrary national decisions.I also second the proposal of Professor Peter vanFenema to engage the COPUOS Legal Subcommittee“in an analysis of whether the body of space law andpolicy is still adequate in regulating the space activitiesof states and other entities, particularly in the light ofthe explosive growth of private commercial spaceactivities”. I would just suggest one basic condition:This discussion should be focused not only on privateinterests, but also and simultaneously on theinternational public interests, the interests of allcountries, as they are recognized in 1967 Space Treaty.We need to take into due account this requirementbecause, as properly stated in the UNISPACE IIIPlenary session by the Head of the BrazilianDelegation, Ambassador Sergio de Queiroz Duarte,“the increasing involvement of the private sector ininternational cooperation agreements should not resultin an increase of the gap between developed anddeveloping countries, but rather in the strengthening oftrue international cooperation in the use of space as thecommon domain of humankind.”All these ideas raise questions that we would haveto discuss and try to find fair answers: Which kind ofglobal launch services development we all neednowadays and in the future? Does this expansion willcontinue to move under the market forces only, or couldthe community of nations and organizations, includingprivate ones, act in the sense of conducting thisexpansion to a more reasonable and rational directionalso? How to deal with the tendency of oligopolizationof the launch industry?Such a comprehensive discussion may lead us toseriously think about the task of setting specificprinciples on the launch space services, a sort of a codeof conduct. After all, they are the very start of all spaceactivities.Commentary PaperArmel KerrestProfessor of International Law at theUniversity of Western Brittany (France)I was very impressed by the high quality of thepresentation of Pr. van Fenema. I share most of his

58 EXPANDING GLOBAL LAUNCH SERVICESviews on that matter. I would like to make two remarksand two proposals concerning this important issue.1) The space treaties and especially the first ones area great achievement. I really don't know how we coulddraft such texts nowadays. As far as launchingactivities are concerned, the treaties deal withresponsibility and liability in a victim-oriented mannerwhich is second to none. Some improvement is possibleespecially to take into account the commercial andprivate activities, but it should not conduct to a changeof the principles.The relations between international and domesticlaw are often misunderstood. Space treaties should notbe regarded as able to rule everything in outer spaceespecially as far as private entities are concerned.Private entities are not subject to international lawwhich applies to them through domestic legal order.International space law including the treaties creates toStates obligations that they must fulfil. The treatiesshould be regarded as the basic rules of Statesobligations and relations. This does not prevent them toorganise and rule, on a domestic juridical level, privateactivities they are internationally responsible and liablefor.It is often argued that some definitions used in thetreaties are to be specified. May I remind you thatarticle 38 of the statute of the International Court ofJustice accepts the "teachings of the most highlyqualified publicists of the various nations, as subsidiarymeans for the determination of rules of law." Thus Iwould support the creation by the COPUOS of groupsof experts which should be of great help on thesematters.2) My second question is more directly linked with thepaper of Pr. Van Fenema. If the commercial spacemarket is rather closed for the time being, I am not surethis situation is going to be maintained. The currentmarket is nowadays launcher-oriented, but, with thepossible success of new launchers and of thecommercial use of old ones, the market may becomeuser oriented. The recent success of Sea Launch showsthe way. Some other projects are being pursued; newlaunch facilities are created or to be created.To my opinion this trend will modify not only thelaunching market, but also the legal framework forcontrolling launching activities. As we know, thelaunching State, because of its liability, has to controllaunching. Until now, launching activities needed largefacilities and were under the effective control ofcompetent and able States. The current evolution shouldconduct to see some private entities driven by a strongercompetition try to escape the heavy burden ofregulations by space powers. As we see in other fields,in a difficult and very competitive market, one of themajor possibilities to lower the cost is to try to escaperegulations that are costly in time and money. It isalready the case in the sea activity; no real actor can actin a competitive market without using flag ofconvenience, i.e. rules of convenience.My proposals are the consequences of theseremarks:1 The necessity to maintain the treaties as the verybasis of space law especially on the questions related toresponsibility and liability.2 The necessity to improve international spaceregulations to make sure that States will fulfil theirobligation to control their national activities in outerspace. These international rules should be compulsoryand integrated into domestic legal order by every Stateand thus cannot be avoided by choosing a registrationor a nationality. No flag of convenience should beaccepted in outer space. I would not like to see thoselegal black holes be created in outer space as they areat sea.We know what black holes are, they destroyeverything approaching them, even the light.Summary ReportThis session examined the expanding base of launchsystem providers worldwide and considered the legaland policy implications of the phenomenal growth in

EXPANDING GLOBAL LAUNCH SERVICES 59this market sector. The international launch sectorshows a high grade of privatisation andcommercialisation. The problem is the missingliberalisation of this sector. There is still a relativelysmall number of players but this will change.• The private enterprises shall be given an higherimportance in the legislative process.• The discussion must not be focussed only onprivate enterprise's interests but must orientateon public interests as well.• Reference: Book of Mr. S.E. Doyle on DualUse of Space Applications• Therefore, a framework for permanentdialogue could be established.• For the future global launch industry, the IGOscould possibly play a very beneficial role• US governmental inducements to (re) startcommercial launch industry.• Investigation in the role of IGOs in thisconcern.• Elaboration of Coordination of ITU, GATT,WTO with UNCOPUOS for the harmonisationof work to be done in the future.• Need for substainable development in order toprotect environment• Accountability also at the private level• Study on the dilemma between national securiyand commercial interest (this was shownprecisely on the example of USA).Investigation in the problem of nationalsecurity including economic security.• Technology transfer can be reached by acooperation with MTCR.• More effective and systematic regulation ofinternational property rights.• National export controls should be minimized.• Establishment of a working group for therevision of national laws.

EXPANDING GLOBAL COMMUNICATIONS SERVICESSESSION 3Chair: Professor V.S. Mani (India)Coordinator/Rapporteur: Dr. Ram Jakhu (Canada)

SESSION THREEExpanding Global Communications ServicesDiscussion PaperFrancis LyallProfessor of Public Law,University of AberdeenAberdeen, AB24 3UBScotland, U.K.© F . Lyall 1999Preliminary noteWhat follows is intended as a ‘discussion paper’; thatis, its purpose is to identify, to make some comment onand to open up for consideration some questions ofinternational telecommunications in the space age. I amnot thereby to be thought of as necessarily whollycommitted to all the points made, nor to all the solutionsand measures suggested. And I also would apologise tothose whose ideas or points of view may have beenoverlooked, as well as to those who may well have putforward similar ideas in the past, but whose work is nothere expressly acknowledged.IntroductionWorld telecommunications were revolutionised by theopening of space. As was foreseen by Arthur C. Clarkein that famous article of 1945 in which he put forwardthe concept of providing telecommunications links fromthe geostationary orbit,1 space systems providerelatively inexpensive high quality services, are easy ofaccess from very widely spread locations, and are1A. C. Clarke, 'Extra-terrestrial Relays: Can Rocket StationsGive World-Wide Radio Coverage?' Wireless World, October1945, 303-8.without many of the problems of wired services orterrestrial radio. The United Nations was earlyconscious of the challenges and opportunities presentedby this revolution, and has responded through GeneralAssembly Resolutions as well as through its family ofspecialised agencies, notably the InternationalTelecommunication Union (the ITU). There have alsobeen two prior conferences held specifically to considerspace matters, UNISPACE I of 1968 andUNISPACE II, 1983. Now, four decades on sinceSputnik I, UNISPACE III takes our attention.Telecommunications are extraordinarily significantin the modem world. The provision oftelecommunications services is one of the largestbusiness sectors in the world. The data carried by theseservices is fundamental to the conduct of manyindustries. Telecommunications therefore hasimportant economic effects. The political effects arealso undoubtable. Statesmen, governments, institutionsand commentators are expected to react faster than everbefore, occasionally, I fear, without having sufficienttime to gather all relevant information and arrive at abalanced view following upon a period of thoughtfulcontemplation of problems. The information explosionhas had vital consequences (both positive and negative)within societies,. Some cultures have spread and othersweakened. Moral attitudes and religious beliefs, havebeen strengthened and diminished. Former bedrock

64 EXPANDING GLOBAL COMMUNICATIONS SERVICESprinciples have been questioned, and new dogmasestablished. In short, Marshall McLuhan’s ‘globalvillage’ is upon us. Nonetheless, and granted all thedangers involved, it is important that as much of thepopulation of the world as possible should be able togain from the benefits that have come since the openingof the space telecommunications systems. How this canbe done efficiently and equitably is a question, and theanswers to it change over time.Our predecessors at UNISPACE I and II faced arather different world. Since 1968 and even since 1983,attitudes and presuppositions have changed. Demandfor telecommunication services has increased in manyways. The privatisation of services formerly thought ofas the responsibility of government has becomecommon in many of the developed states. Correlatively,competition has become a watch-word. It is curious,however, to note how in the technical field at least,modem solutions to modem problems often are directlytraceable to the basic concepts worked out by ourforefathers at the dawn of the modemtelecommunication age.2 It is odd also to see theparallels between Nineteenth Century arrangements andthose of the present day, and to wonder whether thatcycle of underlying philosophies will repeat.But things have moved on since the early days ofspace, and, without further rehearsing history, we mustnow turn our eyes to the future, while learning from thepast. Telecommunications have expanded in manyways. As noted, demand for traditionaltelecommunications services has increased. Newservices have become available, and popular. How tocope institutionally with these developments is aquestion, the answers to which have arguably beencompromised by a failure to tackle it early enough.Many of the relevant institutions that served well in thepast are under pressure. Some are on the brink of2Cf. the International Telegraph Convention, Paris 1865, 130CTS 198; the International Telegraph Convention Vienna,1868, 1366 CTS 292; the International Telegraph Conventionand Regulations, Rome, 1872,143 Consol. TS 415, and thePreliminary Conference at Berlin on Wireless Telegraphy,Proces-verbaux and Protocole Final, (UK) (1903) Cd. 1832;194 Consol. TS 46.; and, the Radio-telegraphic Convention,Final Protocol and Regulations, Berlin, 1906, 1906 UK Parl.Papers, HC 368; 203 Consol. TS 101.metamorphosis, while others have evolved. How tocope with the new level of demand as a matter ofresource allocation is another and equally fundamentalquestion, to which there are several potential concurrentanswers. Telecommunication by cable has its ownpractical constraints, but is relatively easy to deal within that the connection facility is confined and thearrangements a matter for negotiation between thecountries and entities concerned. By contrast, radio isa real problem.That said, many of the problems remain the sameas those faced by our predecessors, albeit in altered oraggravated form. Further, various basic questions arecommon to the sessions to be held during this LegalWorkshop, though the answers may well vary fromcase to case. How best should space be used? What isrequired for the efficient exploitation of spacetechnologies? How can we ensure that exploitation isalso equitable.3 What international procedures exist todeal with such matters? How can they be improved?What controls may be required? How can they beenforced? These, and similar issues, underlie whatfollows. Our subject, telecommunications, requires itsown set of responses to these questions, but we shouldbegin by noting that these basic questions face us all.Three other introductory points must be made.First, the matters discussed below are not exhaustive ofthe issues of space telecommunications. There isneither time nor space for that. This paper simply dealswith matters that seem to me to deserve the attention ofUNISPACE III. Second, assumptions are made aboutthe knowledge of the participants in the Workshop bothas to technical and as to legal matters. Third, while Ihave given sourcing for the documentary materialsreferred to, the citation of scholarly and otherauthoritative discussions is less thorough. More hasbeen read over the years than is cited, and I apologise toany who feel their work has been neglected by myfailure to cite. The problem is the nature of the paper,which is intended to trigger discussion.3 I assume here that the obligation of art. I of the Outer SpaceTreaty (cited below) as to the benefit and interest of allcountries is accepted as legally binding.

EXPANDING GLOBAL COMMUNICATIONS SERVICES 65We start with developments in internationaltelecommunications providers. We go on to theInternational Telecommunication Union as such, andthence to questions of the radio spectrum and thegeostationary orbit.International telecommunicationsproviders: privatisation andcompetitionGlobal telecommunications entitiesThe privatisation of telecommunications is having itseffect. While formerly (and with the exception of theUS), telecommunications was generally considerednecessarily to be a state function, many states haveprivatised the provision of telecommunications serviceswithin their jurisdiction in whole or in part, or aretaking steps towards. Further, these newtelecommunications entities have been busy enteringinto cooperation agreements, and even on occasionforming increasingly large businesses through takeoversand mergers that have gone beyond statefrontiers. This goes along with the notion ofcompetition. As noted earlier, competition is now adogma in international trade. Telecommunications havenot been exempted. The World Trade Organisationrecently adopted measures on the question of theprovision of telecommunications services.4 TheEuropean Union has also produced legislation underwhich competition is being introduced intotelecommunications services across the member states.And, of course, as the European Union expands, as4 World Trade Organisation: Agreement on TelecommunicationsServices (Fourth Protocol to General Agreement on Trade inServices), Geneva, 15 February 1997, (1997) 3 6 ILM 354. SeeT.L. McLarty, ‘Liberalized Telecommunications Trade in theWTO: Implications for Universal Service Policy’ (1998) 51Fed. Comm. LJ 1-58. As of correlative interest, cf. the splittingup of the Bell system in the US and subsequent developmentsarising out of technological convergence. On the Bell story see:P. Temin, The Fall o f the Bell System: A Study in Prices andPolitics, (Cambridge and new York: Cambridge UP, 1988).seems likely, these requirements will extend to a greatergeographic area.To the devil’s brew of commercialisation andcompetition has been added technologicaldevelopments. The convergence of technologies, andthe ability to provide formerly distinct services throughcommon systems, has an effect on law. The relativelysimple regulatory structures of the past have becomeoutmoded.It is awkward to fit these developments into theframework of space telecommunications as that wasfirst developed. It must be done, but it is clear thatthere are dangers involved in these unstoppabledevelopments. I fear that the public interest of theworld may be compromised, and therefore suggest thatsteps should be taken to ensure that the ‘global publicinterest’ is protected by appropriate machinery. Theoriginal conception when space services werecontemplated by the United Nations was oftelecommunications as a public service. That is not thesame as a service to the public. While it is equitablethat payment is made for use of both a public service,and a service to the public, a public service should beprovided and maintained even if it is not itself profitmaking.A ‘service to the public’ will usually beprovided only if there is a reasonable prospect of profit.Profits will normally be maximised.The potential of space telecommunications tobenefit mankind was clearly identified by the GeneralAssembly of the United Nations in 1961, when, inResolution 1721 (XVI) of 20 December 1961, onInternational Cooperation in the Peaceful Uses of OuterSpace' it expressed the hope that that communicationby means of satellites should be available to the nationsof the world as soon as practicable on a global and nondiscriminatorybasis'.5 Curiously the desirability ofsuch telecommunications service is not furtherspecifically identified either for commendation orexhortation in later UN Resolutions or treaties.However, there can be no doubt that spacetelecommunications fall well within the terms of UN5 See the first preambular paragraph, 'Believing', of Part D ofUNGA Res. 1721, International Co-operation in the PeacefulUses of Outer Space', 10 December 1961.

66 EXPANDING GLOBAL COMMUNICATIONS SERVICESResolution 1962 of 1963, the 'Declaration of LegalPrinciples Governing the Activities of States in theExploration and Use of Outer Space',6 and themanifestation of these Principles in the Outer SpaceTreaty of 1967.7 Of course, over the years the nonspace-activestates, and in particular the developingcountries, have expressed reservations about the extentto which actual benefit from space activities hasaccrued to them, General Assembly Resolution 51/122of 19978 being the clearest outcome of their concern, aswell as evidence of the willingness of the spacecompetentstates to consider the matter. But while onecan have sympathy with the point, telecommunicationscan certainly be cited as one area in which all countrieswilling and anxious to benefit from space have beenable to do so.It would be otiose to pretend that after Resolution1721 of 1961 matters were simple or easy. Thetechnicalities were to take time, and there was muchdiscussion and compromise to come on the legalities.How best to set up a 'single global system' for spacetelecommunications was a question to which differentanswers were possible. Within a year the United Stateshad created the Communications Satellite Corporationwith some hope that it would build and run a servicewhich others would use on a commercial basis.9 Otherswanted an arrangement under which the enterprise, itsprofits and losses and the technical expertise resultingfrom the endeavour, would be shared, and that is whattranspired. Interim Arrangements for the InternationalSatellite Telecommunications Organisation(INTELSAT) were set up in the shadow, as it were, ofthe ‘Principles’ Resolution of 1963.10 The InterimArrangements were innovative, having more of thecharacter of an arrangement among joint venturers thanhad hitherto been normal in international organisations.After nine years, in 1973 these interim arrangementswere replaced, INTELSAT as we have known it for aquarter of a century came into being,11and it must beacknowledged that it fulfilled, and continues to fulfil,many of the high expectations of the 1961 UNResolution. The concept of the linkedintergovernmental agreement and the operatingagreement between telecommunications entities (takenover from the Interim Arrangements) was novel. Therelating of financial obligation and the sharing of profit,and fundamentally the weighting of representation in theBoard of Governors, to usage, was a master-stroke. Itafforded, and affords a workable solution to theconstant problem found in so many internationalorganisations (including the ITU) of the difficultiescaused when the dogma 'one state one vote' is notmatched by equality of financial commitment.For a variety of reasons a separate organisation,INMARSAT, was created to provide maritime mobileservices, through the agency of what was originallycalled the International Maritime SatelliteOrganisation.12 For related reasons, including the6 The Declaration of Legal Principles Governing the Activitiesof States in the Exploration and Use of Outer Space, 13December 1963, G.A. Res., 1962 (XVIII).7Treaty on Principles Governing the Activities of States in theExploration and Use of Outer Space, including the Moon andother Celestial Bodies, 1967,610 UNTS 205; (1968) UKTS 10,Cmnd. 3519; 18 UST 2410, TIAS 6347; 6 ILM 386; 61 AJIL644.8 Declaration on International Cooperation in the Explorationand Use of Outer Space for the Benefit and in the Interest of AllStates, Taking into Particular Account the Needs of DevelopingCountries’ A/RES/51/122 4 February 1997.9 See the (US) Communications Satellite Act 1962, (Public Law87-624; 76 Stat. 419,47 USC 701-44), as subsequentlyamended. The Articles of Incorporation of the Corporation areprinted (1963) 2 ILM 395.10 Agreement Establishing Interim Arrangements for a GlobalCommercial Communications Satellite System, and RelativeSpecial Agreement, (UK) 1964 Cmnd. 2436; (1964) 3 ILM80511 Agreement and Operating Agreement relating to theInternational Telecommunications Satellite Organisation(INTELSAT), Washington, 1971, (1973) UKTS No. 80, Cmnd.5461; 23 UST 3813 and 4091, TIAS 7532; (1971) 10 ILM1909.12 Convention and Operating Agreement on the InternationalMaritime Satellite Organisation (INMARSAT) with OperatingAgreement, London 1976; 1143 UNTS 105 and 213; (1976)UKTS No. 94, Cmnd. 7722; 31 UST 1 and 135, HAS 9605;(1976) 15 ILM 1051-75. Although it retains the acronym of itsolder incarnation, INMARSAT is now formally titled theInternational Mobile Satellite Organisation, as the businesstransacted has expanded into other fields of mobilecommunications.

EXPANDING GLOBAL COMMUNICATIONS SERVICES 67smaller size and more confined purposes of theorganisation, a structure different from that ofINTELSAT was selected. However, notably therelationship between financial commitment and powerin important decisions was retained. Other internationalorganisations were set up to provide particular services,or services to a particular constituency. Major amongthese are INTERSPUTNIK,13 originally based withinthe then USSR sphere of interest, EUTELSAT,14 whichoriginated with Europe, ARABSAT,15 which broughttogether the Arab world across a large section of theglobe, and PALAPA, originally an Indonesian domesticsystem, but one which now provides services in theAsian region.Such were the main providers of satellitetelecommunication services. But now, increasingly, wesee companies such as PanAmSat, Orion, Iridium,Alcatel, invested with legal personality by registrationthrough the procedures of a particular state, whosepurpose is the provision of national and internationaltelecommunication services for commercial profit.These companies wish selectively to enter thetelecommunications market. Indeed, some of them arealready active in parts of the market, in some instancesproviding ‘new services’ not offered by theirpredecessors.13 Agreement on the Establishment of the "INTERSPUTNIK"International System and Organisation of SpaceCommunications, Moscow, 1971, 862 UNTS 3; Space Law:Selected Basic Documents, (2d. ed.) Committee on Commerce,Science and Transportation, (US Government Printing Office,1978) at 385-98. See also Y. M. Kolossov, InternationalSystem and Organisation of Space Communication(INTERSPUTNIK)' in N. Jasentulyana and R.S. Lee (eds.),Manual On Space Law, (New York: Oceana, 1979-84), vol. 1,401-14, with text of Agreement, vol. 2 at 159.14 Convention and Operating Agreement of the EuropeanTelecommunications Satellite Organisation (EUTELSAT),Paris, 1983, 1519 UNTS 149; (1990) UKTS 12, Cm. 956.,amended (1990) UKTS 15, Cm. 956.15 For unofficial translations of The Agreement of the ArabCorporation for Space Communications, see Space Law:Selected Basic Documents, (2d. ed.) Committee on Commerce,Science and Transportation, (US Government Printing Office,1978) at 449-68; N. Jasentuliyana and R. Lee (eds.), vol. 2 at345-60; and, E. M. M. Abdallah, The Arab Satellite', (1977) 44Telecommunication Journal, 422-6.Some would argue that this development isnecessary. Without conceding that, others wouldaccept that the procedures of the internationaltelecommunications organisations can be slow, theintroduction of new services not as swift as companiescan achieve, and that the status of the gateways to thefacilities of the organisations can be used to impedecompetition by others.16 Both INTELSAT andINMARSAT avoided some of that criticism byaccepting direct access by non-Signatory entities, butonly provided that the appropriate Signatory agreed.That has been insufficient to stifle criticism. Anotherstrategy has been for first INMARSAT, and secondINTELSAT to hive off certain elements of theirbusinesses to separate companies. In the case ofINMARSAT, ICO Global Communications Ltd, wascreated some years ago, and it is now a separatecompany, which, indeed could be a competitor ofINMARSAT in due course. It’s market niche is that ofthe personal mobile phone, which will link with asystem of low level satellites which it is in the processof creating. In the case of INTELSAT, New Skies NVwas separated off in 1998, and operates as a Dutchcompany providing multi-regional video and interactivemulti-media services for both business and individualcustomers. Unlike the INMARSAT spin-off, which hasstill to establish its system, New Skies NV has beencreated in a functional state, as it were, five satellitesand appropriate contracts being transferred as at thetime of incorporation. In addition the ITU has acceptedthe transfer of appropriate frequency and orbitalpositions from the US to The Netherlands.However, such steps are less than would meet therequirements of those who would seek the privatisationof the international organisations. Other arguments forprivatisation of the core business of each of the twosatellite organisations have been at work as well. Bothorganisations could profit from an ability to garnerfinance from the ordinary commercial sources such as16 Cf. the rather hysterical opposition to INTELSAT manifestedin recent Congressional debate, as well as provision in draftbills which appears to instruct the US Executive Branch tobreach its international obligations. See the terms of anddebate and Hearings relevant to Bills S. 2365 on InternationalSatellite Communications Reform, and H.R. 1872 onCommunications Satellite Competition and Privatisation, both105 th Congress, 2d Session.

68 EXPANDING GLOBAL COMMUNICATIONS SERVICESbanks. This is particularly the case with INMARSATwhich needs to upgrade its satellite system at a time thatthe economic difficulties of some of its major membershas made them less likely to undertake the neededinvestment. Ordinary commercial borrowing is anoption not available to an international organisation, butavailable to a private entity.Another factor has been that, as the spacetelecommunications market has opened up tocompetition from private companies, the advantages oflimited liability have seemed increasingly attractive.The privileges and immunities of an internationalorganisation are not the same thing as limited liability.This interacts with the question of access to normalfinancial sources. Borrowing, whether or not withsecurity, is not available to an international organisationin the same way it is available for an economic entitywhose liabilities are defined and protected to a degreeby limited liability.However one looks at these matters, the die hasbeen cast in the one case, INMARSAT, and is likely tobe similarly cast in the other, INTELSAT. From 15April 1999 INMARSAT has been a rather differentthing. It has been extraordinary to see a camelmetamorphose into a horse, and I just hope that thatmetaphor is correct. Others might say that an armadillohas mutated into a dromedary. INMARSAT nowconsists of a much slimmed down internationalorganisation with supervisory functions in relation toINMARSAT Ltd, a company incorporated in the U.K.,and to which the assets and liabilities as well as theoperating functions for the former organisation havebeen transferred.17 INTELSAT may well go down thesame line, as may EUTELSAT and INTERSPUTNIK.This is not the place thoroughly to analyse thesedevelopments, actual and potential. But one shouldexpress some fears. What of the principles of a globalsystem with access for all on a basis of equality?First, we must recognise that incorporation of anentity within a legal system makes that entity subject tothe law of that system, and to governmental pressuresl7D. Sagar, ‘The Privatisation o f INMARSAT’, 1998 41 Proc.IISL, 205-23.backed up, if necessary, by appropriate legal changes.Will a global telecommunications system run by anincorporated private company be subjected to thedirection of the state of incorporation according to whatthat state’s government considers to be in its interests?To sharpen the point, would INTELSAT privatised andincorporated, for the sake of argument in the US, beallowed without interference to continue service to Iraqor the Former Yugoslavia because its system issupposed to be global and accessible withoutdiscrimination?18Second, if the major global internationaltelecommunications organisations are to be privatised,and therefore run on a commercial basis, what can bedone to ensure that profitability alone is not the measureof whether a particular service or link it maintained,particularly if it is not itself profit-making? What ofthe concept of an ‘international public service’?It is good to note that within the INMARSATmutation, steps have been taken to protect the publicservice obligations in relation to the safety of life at sea(the GMDSS (Global Maritime Distress and SafetySystem)). The Public Service Agreement between thenew company and the new Organisation secures thatelement.It has also been good to understand that in theINTELSAT discussions, public service is also anelement which is likely to be protected. From thebeginning the INTELSAT Agreements allowed theorganisation to provide domestic telecommunicationsservices, in some instances on the same basis as publicinternational services if that were feasible afterobligations to the international services were met. Thathas eventuated. Over thirty countries and fifteen ormore territories are dependent on the INTELSATsystem for their domestic telecommunications services,181. The INTELSAT ‘spin-ofF, New Skies NV, has beenincorporated in The Netherlands, not the US. 2. I note thatEUTELSAT withdrew service for a Yugoslavian TV newsbroadcast through its facilities at the beginning of June 1999.This, however, is not quite the same as the provision oftelecommunications services.

EXPANDING GLOBAL COMMUNICATIONS SERVICES 69In addition many developing countries are alsodependent on INTELSAT for their international traffic.In terms of Art. V(d) of the INTELSAT Agreement, thecharging rate for each type of utilisation of theINTELSAT space segment is the same for all users ofthat service. What this means is that routes andconnections which do not themselves generate sufficientincome to pay for their provision are charged at lessthan cost. It is to be hoped that a mutated INTELSATwill continue to provide these services, and thatfinancial considerations will not result in an undueincrease in charges to such countries and territories.Such services really are a public service, well within thetenor of the attitudes of UNGA Res. 1721.But how may one secure the INMARSAT and the(potential) INTELSAT position on such matters? In anera of competition where financial cost-effectivenessseems paramount, one can not wholly rely onassurances. As noted, there is the INMARSAT PublicService Agreement enforceable through the UK courts.Perhaps something similar could be done forINTELSAT, though I must say I would be reluctant tosee INTELSAT’s public service obligation securedthrough the vagaries of US law as it now exists.One solution might be to entrust the supervision ofsuch matters to an international body. I will come tothe question of an International Authority for otherpurposes, but that of enforcement of public serviceobligations could sit well with the other duties thatshould be given to such a body.In any event it is desirable that UNISPACE IIIshould express concerns on these matters, and theexpectation that the basic concept of ‘internationalpublic service telecommunications facilities’ should inthe general world interest be continued, if necessary bysubsidising uneconomic connections, routes andservices, by the more profitable. Telecommunicationsentities should not be able to cream off only profitableservices and routes, leaving others to shoulder theburden of the public interest where that service is lossmaking.New entrantsSome of the preceding discussion assumes the presenceof new telecommunications entities as providers ofspace services. That assumption is, of course, morethan an assumption. But there are certain mattersconnected with the entry of companies into the spacetelecommunications business which should causeconcern. Since some of these concerns can be metthrough the ITU, they will be mentioned under thatheading, below. Other general points arising from theentry of new providers into internationaltelecommunications may be identified here.States’ supervisory abilitiesIt is the duty of states parties to the 1967 Outer SpaceTreaty to authorise and on a continuing basis tosupervise the activities of state and non-governmentalentities in space (art. VI, OST). It is also the right ofall states to use Outer Space (Art. 1.2, OST).Similarly, states have duties under arts. 45.2 and 3 ofthe ITU Constitution as to the avoidance of harmfulradio interference. The question must be asked whetherall states are equally able to exercise these supervisoryroles. There is a risk that a state may be willing toauthorise space activities which it is not able properlyto superintend, and to allow the use of radio frequencieswithout being able properly to enforce the avoidance ofharmful interference. Perhaps where such an ability islacking, the ITU should be permitted not to acceptnotifications from such a state.Flags of convenience : HomesteadingWe can take the question of a state’s ability to meet itsduties as to licensing and supervision one step further.The concept of a ‘genuine connection’ has surfaced attimes in various matters of nationality. Companies andbusinesses are quite often created and registered withregard to taxation and other advantages, without therebeing a close or fundamental connection between thebusiness and the state of registration. Some states arein the business of being tax havens, and I note that atleast one of the new entrants to the spacetelecommunications business has so arranged its affairs.

70 EXPANDING GLOBAL COMMUNICATIONS SERVICESApart from that, a clear analogy is possible between thedeveloping law of space, and the law of the sea. Theregistration of shipping and flags of convenience stateshave been long-standing problems.There is, of course, a correlative possibility that inreality a state may seek to register frequencies and/ororbital positions in order to gain revenue by leasingthem to companies. (The Tongasat question could beviewed in this light.) In such a case a state wouldeffectively be homesteading a claim which might ormight not eventually produce gold. This would be anundesirable abuse of the ITU system. It is true that thenew measures as to ‘due diligence' described below inthe discussion of ‘Paper Satellites’ will do much toreduce the problem. But that does assume a state willact in accordance with the spirit of the system. A statejust might be persuaded to play the system, interpretingthe words of the procedures to suit its own purposesand those of a persuasive company. My answer to thiswould be to encourage the ITU to use the powers thatcan be implied from its purposes, as indicated in the lastsection of this paper. But perhaps the ITU wouldprefer express authority so to do.Therefore, to cope with the problems of this subheading,perhaps UNISPACE III should declare that itis incumbent on states not to incorporate or registercompanies, or license the activities of companiesengaged in space telecommunications, unless there is aclear and substantial connection between the state andthe business to be carried on. Further states shouldnotify only space systems which are required for theirown internal and international telecommunicationsservices, traffic volume being an importantconsideration. The ITU, should be given the power toscrutinise notifications to it for the required connectionsbetween operator and the notifying state, and betweenthe proposal and the telecommunications requirementsof that state, and be instructed to refuse notificationswhich do not meet these test. Such could go along withother proposals for strengthening the role of the ITUwhich are made below.LicensingFinally in connection with new entrants there is thequestion of the licensing authority. At present it is forstates to license an entity which wishes to engage inspace activities, including telecommunications (Art. VI,OST). In so doing a state is free to establish whatevermechanisms it may choose. However, for the sake ofthis discussion let us assume that every state deals withthe matter through a Communications Commission. Nomatter what device is used, such a Commission willhave regard to the interests of the state in coming to adecision. In many countries by reason of their rules asto the incorporation of international law, the obligationsthe state has under the ITU and other appropriate forawill be taken into account. At least, one hopes so.Other countries act differently. But in any event, it isclear that the domestic interest of the state, oftenmanifested through the benefit to the national entitywhich is the applicant for the licence, is paramount.The result is that the global telecommunications systemdevelops piecemeal, as a cumulation of separatecommercial and state interests. There is no body orprocess in which the interest of the world as a whole isthe basis of licensing decisions in spacetelecommunications.Consider the new entrant using one of the LowEarth Orbit technologies. The licences granted for suchmean that the company gets access to orbits and tofrequencies. Theoretically the licence is valid onlywithin the jurisdiction of the authority which grants it.In some cases new rules as to the recognition oflicences, for example within the European Union,means that a wider area is covered - but it is still asmall area having regard to the fact that the LEOsatellite(s) orbit the earth. In effect therefore thedecision of one licensing authority pre-empts the matteron a global basis, but the decision has been made in theparticular interest of the licensing state. This is wrong.I would argue (and will argue again further on,though expressing certain reservations) that just asspace telecommunications affects the whole world, notjust the state of licence, decisions affecting the worldshould be made by a world authority. A globalCommunications Commission is the only way in whichthe aspirations of Article I of the Outer Space Treaty

EXPANDING GLOBAL COMMUNICATIONS SERVICES 71will be properly met. The entry of these new entitiesinto the space telecommunications market-place wouldhave been the time to put such a system in place. Butit is not too late.Radio mattersThe radio spectrum, which used to be considered aninexhaustible resource, is clearly so no longer. Asarticle 44.2 of the ITU Constitution states, radiofrequencies are a limited natural resource, the use ofwhich should be rational, efficient and economic. Thegeostationary orbit is similarly characterised.Without radio signals for command, control andtelemetry, satellites, whether for telecommunications orotherwise, are useless. Such requirements have to beintercalated with the demands of terrestrial highfrequency systems. In addition there is also demandfrom the radio astronomers and SETI searchers, thatcertain (otherwise useful) bands be kept free from useso that interference with extra-terrestrial sources isminimal. In short radio, already the province of theITU when space activities began, is essential forvirtually all space endeavours. It would therefore havebeen quite remarkable, not to say obtuse, had UnitedNations Resolution 1721 of 1961 not also put its fingeron the importance of the ITU for developments inspace. The ITU was quick to respond, a major initialconference on space requirements being held in 1963,19the first of many thereafter. Indeed, space matters havebecome major preoccupations of the ITU system.The International TelecommunicationUnionBackgroundThe International Telecommunication Union, the ITU,is one of the success stories of international co-19Final Acts of the Extraordinary Administrative RadioConference, Geneva, 7 October - 8 November, 1963 (Geneva:ITU, 1964). In fairness it should be noted that the ITU hadbegun planning this conference before UN Res. 1721.operation.20 Although now in modem guise, the ITU isone of the two oldest international organisations stillfunctioning. The other is the Universal Postal Union.21It is therefore noteworthy that these two elderly, but stillsprightly organisations, exist to provide practicalbenefit for all mankind, effectively complying with oneof the major principles that underlie Space Law.The present ITU, with competence in both wiredand wireless telecommunications, was formed in 1932by a fusion of the International Telegraph Union andwhat was loosely known as the International RadiotelegraphUnion.22 Like other internationalorganisations, the ITU was reconstructed following theSecond World War, becoming a Specialised Agency ofthe United Nations at that time and adapting itsconstitution to the UN model by introducing a SecretaryGeneral, a Secretariat, and an Administrative Councilas well as making permanent its most significantcommittees.23 The ITU Convention was revised several20For the history of the ITU down to their respective dates, see:G.A. Codding Jr., The International Telecommunication Union,An Experiment in International Cooperation (Leiden: E. J.Brill, 1952; rep. New York: Arno Press, 1972). O. Mance,International Telecommunications (Oxford: Oxford UP, 1943)and J.D. Tomlinson, The International Control o fRadiocommunication (Michigan: J.W. Edwards, 1954)( adissertation of 1938), and F. Lyall, Law and SpaceTelecommunications, (Aldershot, Hants: Dartmouth, andBrookfield VT: Gower, 1989).21G. A. Codding, The Universal Postal Union: Coordinator o fthe International Mails (New York: New York U. P., 1964); F.Lyall, ‘Posts and Telecommunications’ in O. Schachter and C.Joyner, United Nations Legal Order, (Cambridge: GrotiusPublications, Cambridge UP, 1995) vol. 2, 789-824.22 Telecommunication Convention, General Radio Regulations,Additional Radio Regulations, Additional Protocol (European),Telegraph Regulations and Telephone Regulations, Madrid,1932, 151 LNTS 4; M. O. Hudson, International Legislation,(Washington DC: Carnegie Endowment, 1932-4) vol. VI, 109.Technically a Radio Union was never established, but likeothers, I use the title to denote the signatories to the variousRadio-telegraph Conventions.23 International Convention on Telecommunications, AtlanticCity, 1947; 193 UNTS 258; (1950) UKTS 76, Cmnd. 8124; 63Stat. 1399, TIAS 1901. Interestingly the ITU and itspredecessors had stood apart from the League of Nations: G.A.Codding, Jr., ‘The Relationship between the League and theUnited Nations with the Independent Agencies: A Comparative

72 EXPANDING GLOBAL COMMUNICATIONS SERVICEStimes thereafter by successive plenipotentiaryconferences, until it underwent fundamentalreorganisation in 1992, when the present constitutionalstructure was adopted.24 This, inter alia, involved thedivision of the ITU Convention into a Constitution(cited CS) and a Convention (cited CV), the formercontaining provisions less likely to require lateramendment. However, the major innovation of 1992was the creation of three Sectors, Development,Standardisation and Radiocommunication, with thecompetence indicated by their titles, each served by aBureau headed by a Director elected by thePlenipotentiary Conference. Minor revisions to the ITUwere made in 1994 at Kyoto,25 and further amendmentsat Minneapolis in 1998.26The ITU has done well, and should becongratulated for that. It has adopted a lesscumbersome way of doing business in order to copewith modem conditions. The four year cycle of sectoralmeetings within the four year cycle of plenipotentiariesis bedding in, though it seems that on occasion for somematters that may be too tight a timetable. Non-stateentities (businesses) have been given easier access toITU study groups and the like by the 1998 MinneapolisPlenipotentiary Conference. But, looking to the futureof space telecommunications (and indeed to other areasof ITU responsibilities) there are some matters whichshould be given fresh consideration. Further, as we willcome to in due course, there arguably is a case for theextension of ITU competence and responsibilities. Westart with several matters of structure and functioning.Analysis' Annales d'Etudes Internationales, 1165-87.24 Constitution and Convention of the InternationalTelecommunication Union: Final Acts of the AdditionalPlenipotentiary Conference, Geneva 1992 (Geneva: ITU, 1993).25 Final Acts of the Plenipotentiary Conference of theInternational Telecommunication Union, Kyoto, 1992 (Geneva:ITU, 1992).26Final Acts of the Plenipotentiary Conference of theInternational Telecommunication Union, Minneapolis, 1998(Geneva: ITU, 1999).The ITU and DevelopmentAs noted above, the reorganisation of the ITU in 1992produced the Development Sector. AlthoughDevelopment had been a matter of great interest tocertain members of the ITU,27 a question must be askedwhether Development is a matter which should figure tothe extent that it does within the ITU structure. TheITU functions as a technical organisation, facilitatingthe efficient and equitable use of telecommunications.Certainly the technical development oftelecommunications is in the interests of the wholeworld.28 However, there is a strong argument that thereare other UN agencies which are better adapted todealing with the rather separate matter of the actualdevelopment of telecommunications facilities indeveloping countries. To have grafted thatresponsibility into the ITU has not been wise. Certainlythe budget for Development is closely controlled and itis separate from that for other ITU activities, but thathas served merely to stunt what could accomplishedwere telecommunications development included in theportfolio of another international organisation whosepurpose and skill generally is the fostering ofdevelopment. The development of telecommunicationswould be better incorporated within other decisions andefforts towards ‘development’ seen in a broadercontext.The Radio Regulations BoardOne result of the restructuring of the ITU in 1992 wasthat the former five member full-time InternationalFrequency Registration Board disappeared. Many ofits functions are the responsibility of the Bureau of thenew Radiocommunications Sector under its Director.Other functions are the responsibility of a part-timeRadio Regulations Board (RRB), originally nine in27 The old International Frequency Registration Board wasactive in development matters, by running training courses etc.for the officials of many new states.28 Cf. The Missing Link' (the Report of the MaitlandCommission, (Geneva: ITU, 1985), and The Report of theSecretary General’s Advisory Group on the ChangingTelecommunications Environment', (the Report of the HansenCommittee)(Geneva: ITU, 1989).

EXPANDING GLOBAL COMMUNICATIONS SERVICES 73number, but raised to twelve by the MinneapolisPlenipotentiary Conference.29 This appears torecognise that there is more work for the RRB than wasthought. Given the importance that the countries of theworld, particularly the newer countries, should trust theITU system, I would still argue that a full-time Boardwould be better.30 If the Board is to have moredecisions to take like that relating to EUTELSAT andAstra of 1998, or that may stem from the present(1999) argument between Loral and EUTELSAT, itwould be better if the Board were divorced from theworld of business. A part-time Board member is likelyto be employed in telecommunications, which raisesfears as to impartiality. Further, since most Boarddecisions rest on technical factors, it would be best thatBoard members should be qualified technically (as usedto be required for membership of the IFRB), and notjust experienced within the realm of telecommunicationsmanagement.Voting weight and FinanceAs is the case throughout the UN family of SpecialisedAgencies, the members of the ITU are states, and eachis entitled to one vote in ITU deliberations. However,like the UPU, and unlike the other UN Agencies whichare financed by contributions assessed by GrossNational Product, subject to a maximum, the generalexpenditure of the ITU continues to be financed on avoluntary basis (ITU CS. art. 28). Each state Memberchooses within six months after each Plenipotentiaryconference the number of units of contribution which itwill pay. The range is from 1/16 unit, available only tothe least developed countries of the world as assessed interms of UN classification, to 40 units. In fact 90% ofthe membership pays 10% of the general costs on theUnion. There is therefore a disparity between votingweight and financial weight. This disparity mayexplain why over the last five or six incarnations of theITU basic documents, development has been given a29 See ITU Plenipotentiary Conference, Minneapolis, 1998,Resolution Plen/2, ‘Provisional Application of the Changes tothe Composition of the Radio Regulations Board'.30 Cf. F. Lyall, ‘The International Frequency RegistrationBoard’ 1993 35 Proc. IISL 394-99.greater and greater role, until now it is classified as oneof the major Purposes of the Union.Such a disparity is wrong, not to say grotesque.Add it to what is written above about the imbalanceamong states of practical competence intelecommunications, and one can clearly see a potentialthreat to the proper and satisfactory functioning of theUnion. The objective of the ITU was (and is) thecreation and operation of practical solutions tointernational telecommunications matters which willbest serve the interests of the world. The currentfinancing arrangements for the ITU were adoptedprecisely because they reflected the interest andcompetence of Members in telecommunications. In thatthe usage of the international system by ITU memberswas an obvious element. With the huge growth innumbers of states that original basis has been lost sightof. Steps should be taken to restore it. One methodwould be to relate voting weight to financialcontribution, and perhaps to telecommunications usageboth within and from/to a Member.31OfficialsWhile it is naturally required that the elected officials ofthe Union, the Secretary-General, his Deputy, theDirectors of the Sectoral Bureaux and members of theRadio Regulations Board should be of the highestefficiency, competence, integrity (CS art. 27.2), inelecting these persons the Plenipotentiary Conferencemust also seek equitable geographic representationthrough the world. That may be fair enough. However,art. 9.1(b) of the Constitution also requires that theseofficials should all be of separate nationality, nominatedby their home states (CS art. 9.1.(c)). Now that, asnoted above, the RRB membership has been raised to12 by the Minneapolis Conference, that makes a total of17 distinct nationalities. That seems too many, giventhe other requirements of election. Although anacademic would think it enough to demand the higheststandards of competence in an elected official, there31 Iwould not argue for a strict relationship betweencontribution and voting strength, as that would mean the leastvoting weight would be l/640th of the highest But some sortof scaling should be applied.

74 EXPANDING GLOBAL COMMUNICATIONS SERVICESdoubtless are other factors at work, so perhaps asuitable compromise would be for not more than twopersons of one nationality to figure on the list of thoseelected.The ITU CouncilThe ITU Council is elected by the PlenipotentiaiyConference, and, within the scope of the functionsdelegated to it by that Conference, at its annualmeetings acts on behalf of the plenipotentiaryconference in the period between plenipotentiaries (CSart. 7 (b) and 10; CV art. 4). Members are elected‘with due regard to the need for equitable distribution ofthe seats on the council among all regions of the world’(CS art. 9.1(a)). Under the 1992 Convention there were43 Council members. When the amendments made bythe Minneapolis Plenipotentiary Conference are fully inforce, that number will be determined by successiveplenipotentiaries, but not to exceed 25% of the ITUmembership (CV art. 4.1 and 2, as modified). Fortythreemembers was already very large, and arguably toomany, making for a cumbersome body at a time whenthe ITU should be directing itself to efficiency andexpedition in its internal workings. A 25% ceilinginvites Council membership to increase further, atpresent to c.46. Without much hope, I would suggestthat the number should be reduced, and a somewhatdifferent concept be introduced. While some regardmust be had to geographic spread, representativesshould be appointed not necessarily to representindividual ITU members, but on occasion (often indeed)to represent the interests of groups of states. This couldbe done by reference to the ‘weight’ each mightrepresent, on the model of the INTELSAT Board ofGovernors as that body presently is constituted.Entitlement to sit could be based on the cumulation ofcontributions of various members represented as well asactivity in international telecommunications. Votingweight in Council should also be related to such factors.Paper satellitesIn the latter part of the 1990s the ITURadiocommunications Bureau received a large numberof notifications of intended satellite systems. Many ofthese notifications were submitted, it would seem, inorder to gain a place on the usual ‘first come, firstserved’ queue.32 Most were not likely to eventuate inworking systems, and accordingly are known as ‘papersatellites’. Submitting data on a ‘paper satellite’ toGeneva would seem to be a breach of the duty of thenotifying state to exercise ‘due diligence’ in scrutinisingthe notifications it was requested to forward. In itselfthat failure ought to be deplored since the internationalsystem depends on states properly complying with theirobligations. Be that as it may, the position became veryserious, with the Sector in latter years having to dealwith over 2000 notifications, which was a huge burdenon the staff, and the finances of the Sector. Suchburdens were, of course, aggravated as many of thoseinvolved were quite aware that the chances of a satellitesystem actually coming into being from suchnotifications were very small. The staff and facilities ofSector was therefore being diverted unnecessarily, andtime, effort and money wasted. Further, of course,those states later in the queue were under an obligationto seek coordination of their proposed systems with theearlier - again a burden perceived as futile. Theproblem of paper satellites’ was the subject of muchconsideration following the adoption of Resolution 18of the Kyoto Plenipotentiary Conference directedtowards the improvement of efficiency of the Union.The upshot has been two-fold, to date. First thenecessity that a state exercise ‘administrative duediligence’ in its scrutiny of a proposed notificationbefore submitting it to the radiocommunication Sectorhas been strengthened. By its Resolution 49 the WorldRadiocommunication Conference of 1997 revised theinformation required to be provided in a notification toinclude detail of the date of the contracts with thespace-craft manufacturer and with the launch providerin addition to other standard data. The requirement offirm contracts alleviates the problem to a degree,though the Director of the Sector is to report on theeffectiveness of this strategy. Second, the ITU hasintroduced a cost-recovery fee for the processing ofnotifications of satellite systems. This innovationrequires separate treatment, but before we come to that,I would suggest it would be wise were UNISPACE IIIto stress the importance that states fulfil properly and32 As to ‘first come, first served’, see below.

EXPANDING GLOBAL COMMUNICATIONS SERVICES 75fully their international obligations. A list of putativeoffenders would be salutary.it extended application as indicated below (ResourceUtilisation fee).Cost recoveryAs indicated, one effect of the burgeoning numbers of‘paper satellites’ was to overburden theRadiocommunication Sector. Apart from thestrengthening of ‘administrative due diligence’ somesuggested solutions focused more precisely on the costof processing notifications and how that might be metin a way that would diminish the problem. First,notifications of systems unlikely to eventuate could bedeterred by the introduction of a suitable level of fee,and second, it was argued to be only right that thosewho as it were caused the cost should bear its burden inwhole or in part. The 1997 World AdministrativeRadio Conference was not willing itself to take such astep, but the Minneapolis Plenipotentiary Conferencehas introduced the concept of ‘cost recovery’ for someITU products and services.33 This goes beyond thematter of the paper satellite, though it clearly appliesthere, and the ITU Council has been empowered tointroduce such a system for other products and services.The circumstances on which a cost recovery fee may beapplied are however, closely circumscribed, theintention being to offset cost, not to generate income.34As a matter of principle, UNISPACE III shouldwelcome this financial realism, and perhaps advocateits adoption elsewhere in the UN system in appropriateinstances. Those who cause cost should be prepared inpart at least to contribute to it. That is a regularexpectation among the governmental and administrativestructures of the world. Why should internationalorganisations not act similarly?But the idea of a fee may have been introduced inan unduly restrictive manner. There is an argument for33 ITU Plenipotentiary Conference, Minneapolis, 1998,Resolution Plen/4, ‘Cost Recovery for some ITU Products andServices’.34 The Council will report on the matter further in 1999. As aside-note, one wonders whether the price of publications aredesigned only to offset costs.Implied powersThe ITU has on occasion been weak in its response tonew problems. There has been a tendency to seek toparse the constituent documents and a submission toargument based on purely verbal constructions that arenot intrinsically compelling. Insufficient regard hasbeen had to the purpose of the Union as expressed inthe constituent documents. In International Law thereis a doctrine that while an international organisation hasthe powers conferred expressly on it in thosedocuments, it also has impliedly powers required for itto carry out its function.35 In the Tonga matter theIFRB did question the number of notifications made bythat state, and eventually the number was considerablyreduced. Of itself that questioning was a use of impliedpower, as the ability to refer a notification back to thestate submitting it on other than technical grounds is notexpress in the ITU documents. However, in my view,the better solution would have been to decline to acceptnotifications which went beyond Tonga’s ownrequirement for satellite services, the Tongan originalnotification being therefore an abuse of the notificationsystem. Such declinature should have been made asbeing within the IFRB’s implied powers. It was wrong,and weakening of ITU authority, to have in effectnegotiated with Tonga. It is to be hoped that the newRadiocommunication Bureau and the RadioRegulations Board will be more robust should a similarinstance arise later. If they are not, and despite thetightening of the ‘due diligence’ requirements fornotification, the homesteader states discussed above(New Entrants, page 69) will be forming a queue.Radio spectrum and orbital mattersTurning from institutional and structural questions ofthe ITU, there are matters of substance in the use ofspace that require discussion.35 Cf. Reparations fo r Injuries Suffered in the Service o f theUnited Nations, 1949 IC J Rep. 174.

76 EXPANDING GLOBAL COMMUNICATIONS SERVICESSpectrum and orbits: First come, first servedI want to take questions of spectrum and orbitstogether, for reasons that will become apparent.It was noted at the start of this Section on RadioMatters (page 71) that, as article 44.2 of the ITUConstitution states, radio frequencies are a limitednatural resource, which should be used rationally,efficiently and economically. The geostationary orbit issimilarly characterised, its limitations being aggravatedby the fa c t that certain parts of its orbital arc are moreuseful than others because of the distribution ofpopulation round the globe. To these ends other ITUprovisions require that states and those they licenseshould avoid harmful interference (CS art. 43), andlimit frequencies and spectrum use to a minimum,applying technical advances as soon as possible (CSart. 44.1 and 2). A main purpose of the Union itself is‘to coordinate efforts to eliminate harmful interference’and improve the use of spectrum and geostationaryorbits (CS art. 1.2(b)). In this the ITU mechanisms asto the allocation of frequency bands, allotment offrequencies and registration processes are essential (CSart. 1.2(a)).The ITU mechanisms as to radio have been workedout over decades, and in principle their application tospace questions was clear. However, certain questionsmay now be raised. Correlative questions may beraised as to the geostationary orbit.AllocationsAlthough the ITU has done well in the matter of theallocation of frequencies to services, and, with theexception of the recent matter of ‘paper satellites'discussed above, the registration system has alsoperformed satisfactorily. Nonetheless, the slowdevelopment of allocations over the three and a halfdecades since the Extraordinary Administration RadioConference of 1963, has been just that - slow.Technical advances have been swift. Debates in the1995 and 1997 Administrative Radio Conferences as tofrequencies, particularly for the LEO systems and formobile phones with global roaming, clearly show thedifficulty.The problem is that the Table of Allocations ofRadio Frequencies represents various geological layers,allocations being made for the best at a particular pointin time, but being likely to remain past the point atwhich they represent the most efficient solution toproblems. An example is the different provisions madefor Broadcasting-Satellite Services in Regions 1 and 3in 1977, and Region 2 in 1983, where the laterAdministrative Radio Conference was able to takeaccount of technical progress in the intervening years.Of course, the ITU system is able to deal with only somany matters at one time. The ITU cycle has beenconsiderably swiftened, but the point remains even witha four year cycle. Again there is some drag on thereconsideration of allocations stemming frommanufacturers who have made decisions on the basis ofknown allocations to particular services. They needtime to re-coup their investment.Even acknowledging all that, however, I aminclined to wonder whether a general review ofAllocations is needed in the light of modemrequirements. Long-standing allocations should bereviewed to see whether more rational allocations wouldbetter fit present needs.Allotment questions; First come first servedv. engineeringThe ITU system of notifications and the MasterInternational Frequency Table provides a protection foran assignment of a frequency and, in appropriateinstances, for the geostationary orbital positioninvolved. A later assignment is to be coordinated withthe earlier. In short-hand terms this is known as ‘firstcome first served’. What happens, happens andtherefore development is decided ‘a posteriori’, on thebasis of state action, and not discussed and decided ‘apriori’, (i.e. in advance). In space matters, the processcontributed to the development of the ‘paper satellite’problem mentioned above. The problem with ‘firstcome first served’ in space is that the technicallyadvanced states are likely to be ‘first’, leaving lessuseful frequencies and orbital slots to later-comers.Some would therefore argue that it would be moreequitable to divide up frequencies and orbital positionsbefore they come into use, allotting to states in terms of

EXPANDING GLOBAL COMMUNICATIONS SERVICES 77their likely requirements rather than their speed oftechnical development.Something similar does already operate terrestriallyin that there are Broadcasting Plans for several portionsof the globe. The European Broadcasting Plan, forexample, allots frequencies and signal strengths withinthe European area, and is a useful way of arrangingmatters. But space is different.In general in matters of space uses, the argument asto the ‘first come, first served’ falls on the side of firstcome first served. It is efficient that those who canmake good use of a frequency band or a geostationaryorbital position, should be allowed so to do. To‘engineer’ either the spectrum, or the geostationaryorbit, giving indefeasible rights to particular states isnot expedient. That said, it has happened - once - buteven that single instance did not entirely displace the‘first come’ concept. This was the allocation offrequencies and slots to each state for Direct Broadcastsystems by the 1985-88 WARC-ORB conference.However, until a state is ready to take up its allotment,another state may license the use of the frequencies andorbital position on a ‘first come’ basis. But while the1988 decisions did guarantee the interests of the lessdevelopedcountries, after twelve years one mayquestion its wisdom. The 1988 decisions were based ontechnologies that have since been much improved. Asa result a state having a ‘right’ under the 1985-88 Planmay be blocking a more efficient use of spectrum in thenew Century. Again, since 1988 we have seen anunexpected growth in the number of states. Have notthe ‘new’ states been disadvantaged, on precisely thesame grounds as the proponents of the 1985-88 systemargued?Public Service Allotments?Putting the basic ideas of the last two sections together,there is also an argument that precisely because of theincreased demand on space services, steps should betaken to secure the requirements of certain serviceswhich fall into a ‘public service' category. It is in thegeneral world interest that bodies such as the WorldMeteorological Organisation with its Meteosat system,and INMARSAT as operating the GMDSS system aswell as maritime and air mobile services, should receivepreferential treatment in their requirements. Accountshould also be taken of the global positioning services(GPS) however they may evolve. For such servicesparticular orbital positions and frequencies aredesirable to the point of being essential. Similarly, suchentities as INTELSAT should also be given preferenceif they maintain public services (life-line services) forthose reliant on satellite services but unable to affordfull-cost prices. Already the ITU Constitution imposesduties to give priority to messages concerning the safetyof life at sea, on land or in outer space, as well as toepidemiological messages by the likes of the WorldHealth Organisation (CS art. 40). That principleshould be extended into the question of the allocation offrequencies, and of orbital positions, and also as to thecategory of messages that qualify. Indeed, somepreference in orbits and frequencies could even be acarrot to induce commercial companies to provide lifelineand similar services.In short, the pure form of ‘first come, first served’,already departed from in 1985-88 for more dubiousreasons, should be further restricted. In the generalworld interest, the requirements of certain servicesshould be recognised, fostered and protected within theITU system.Resource Utilisation FeeAs noted above, the Minneapolis PlenipotentiaryConference authorised the introduction of cost recoveryfor certain ITU products and services. That movestemmed from the question of a ‘filing fee’ for theprocessing of a notification as to a proposed spacesystem. A UK/Luxemburg paper submitted for the1997 WARC spoke in terms of a deposit of 2% of thecost of each satellite in the system times a charge forthe amount of spectrum space sought computed in unitsof 1000 MHz, the deposit to be returned when thesystem became operational.36 The paper also suggestedthat were the fee not to be returnable, it would be setsomewhat differently, relating it clearly to processingcost. Exempted from the calculation would be the first36Due Diligence Considerations’, UK/Luxemburg June 1996,submitted as part of the work of RAG96.

78 EXPANDING GLOBAL COMMUNICATIONS SERVICES1000 MHz of spectrum sought for either only for anational service, or in the case of systems to be set upfor the use of less-developed countries.Minneapolis has applied strict criteria for theintroduction of ‘cost recovery' and its quantum.However, more should be made of the concept.With the development of privatisation, competitionand commercialisation in telecommunications generally,as well as in the space segment, consideration should begiven as to the introduction of a ‘resource utilisationfee’. In that radio is a ‘limited natural resource’ (CSart. 44.2), why should its use not be paid for? The ideais not new.37 And it has been acted on. We have seenin a number of countries a willingness on the part of thestate to generate income for itself through the sale orlease of spectrum space, or the introduction of ‘biddingsystems’ for the allocation of broadcasting licences.38Those who are to gain commercially by the use of ageneral natural resource should be willing to pay for it.The precedent of the Area under Part XI the 1982Convention on the Law of the Sea is not irrelevant,though its mention will doubtless resonate with thosewho bitterly opposed the introduction of its concepts.Of course this raises various questions, anddoubtless opposition who would see it as an unlawfultax on enterprise. Does not the second paragraph Art.I of the Outer Space Treaty speak of the use of space37H.J. Levin, The Invisible Resource: Use and Regulation o f theRadio Spectrum, (Baltimore MD: Johns Hopkins Press, 1971).38 J.C. Thompson, ’Space for Rent: The InternationalTelecommunication Union, Space Law and Orbit/SpectrumLeasing’ (1996) 62 J. Air Law and Comm., 279-311. In the USand Australia, spectrum bands have been auctioned by therelevant governmental authorities. Cf. G.L. Rosston and J.S.Steinberg, ‘Using Market-based Spectrum Policy to promote thePublic Interest’, 1997 FCC LEXIS 384; I. Coe, ‘Legal Issuessurrounding Spectrum Auctions’ a paper at the 1998 MelbourneColloquium of the IISL, 1998 41 Proc. IISL. 194-204. In theUK the last round of commercial television broadcastinglicences was allocated on the basis of bids by companies, andmobile phone spectrum bands may also be auctioned. See alsogenerally F. Lyall, The International TelecommunicationUnion: A Global FCC7 ( 1994) 37 Proc. IISL, 42-7.being ‘free’? But does the term ‘free’ mean ‘availableto all’, or does it preclude a financial aspect over andabove the cost of getting there? I would suggest a ‘fee’is not excluded by the word ‘free’.Other questions should be discussed. What wouldbe the basis of assessment? I am attracted by acalculation based on the number of satellites in asystem, their individual cost, the extent of the spectrumband used, and a flat rate per 1000 MHz.. Should sucha ‘utilisation fee’ be one-off, or a continuing annualpayment? Who should administer it? - the ITU seemsthe obvious candidate.And, lastly; what should be done with the income?Of course those subject to the fee would argue it shouldbe returned as subsidy for maintaining uneconomicservices, but that would merely invite abuse. My ownpreference would be to make the sums available to theUN system, perhaps fostering development, refugees orthe work of such as World Health. But this takes usinto very different waters.An international regulator?As I have thought of the content of this paper, andstarted in on its writing, I have become more and morepersuaded of several matters that arise from theincreased demand for telecommunications services, andfrom the irruption of commercial business practicesbrought in through the privatisation oftelecommunications and modem dogma as tocompetition.The ITU is clearly overburdened. Although it hasdone well in mutating into its new forms, its agenda,particularly in radio, is too great. The agenda for thenext World Radio Conference in 2000 is likely to beenormous, and arguably such matters are gettingbeyond the ability of many delegates to comprehend.1 question whether the present internationalarrangements satisfactorily secure the general worldpublic interest in the provision of globaltelecommunications services open to all withoutdiscrimination.

EXPANDING GLOBAL COMMUNICATIONS SERVICES 79First, the approach of commercial businesses isdirected to the maximisation of profit and the reductionand often excision of non-commercial activities. Thisis not well adapted to the UN stated, and widelyaccepted, notions of telecommunications as a publicservice.39Second, although competition is a watchword muchtouted, there is a tendency towards the establishment bycompanies of dominant positions in markets. As amatter of fact, in many states competition has to besecured and monopoly and dominance diminished bysuitable governmental supervision. The US has theFCC, the UK has the Office of Telecommunications(OFTEL) and the Monopolies Commission. TheEuropean Union monitors and preserves competition asone of its aims. These bodies serve a useful function.However, such supervision is lacking at theinternational level.Third, ex natura the decision of a state as to aspace system has a global effect, but in grants oflicences to telecommunications entities, each state seeksto secure the interests of its own nationals, withoutnecessarily taking into consideration the welfare of theworld as a whole.Fourth, and allied to the immediately previouspoint, there is insufficient separation between thetechnical supervision and facilitation of internationaltelecommunications and the politics and economicsinvolved. The size and content of delegations (and theirhangers-on) to ITU conferences, and the lobbying forcommercial advantage that seems to be involved, provesthe point.Fifth, where an element in a delegation is devotedreally only to a part of the agenda of a conference, theoverall result of the conference can be distorted andunsatisfactory.Many of these difficulties could be alleviated, if notentirely met, by the creation of an internationalregulator and supervisor, which would licence civilianspace telecommunications activities. Although an39 Cf. the aspirations expressed in UNGA Res. 1721, referred toabove.individual state would remain responsible in law for thelicensed activities, a direct approach should be availableto the providers of global international services of theINTELSAT or INMARSAT model, even after theirmutation. The regulator should be given power ordiscretion not to accept proposals which are withoutsubstantive connection with the proposing state. Itshould also be able to reject proposals from stateswhose competence in space or radio matters isquestionable. In licensing the regulator should dealwith technical requirements and act in the best interestsof the world as a whole, taking into due account thewell-being of both the developed and the less developedstates. Proposed rulings should be published, andopportunity be given to interested parties, and to thosewith an interest in such matters (the two are not thesame) to intervene in opposition or with amendments.The efficient use of the radio spectrum and of orbitalpositions would thereby be facilitated. The regulatorybody would act both on a cost recovery basis forprocessing applications, and also could derive incomefrom a suitable resource utilisation fee. Given itsstanding in telecommunications matters, the ITU,suitably adapted could provide this new regulator. (I amaware that some within the ITU would seek not to havesuch a role.) Its base would come from theRadiocommunications Bureau and the RadioRegulations Board. A good, though improveable,model would be the US Federal CommunicationsCommission.I recognise that this is a lot to ask for. But it wouldseem the best way to come closer to the provision ofglobal telecommunications by satellite open to allwithout discrimination and on a basis of equality.The Content of TelecommunicationsLast, and with more than a little diffidence, I would tagthe rights of the individual to hold and express opinion,widely framed in many lists of Human Rights, freedomof expression, freedom of communication, and similarmatters. Within the ITU Constitution it is incumbenton Member states to recognise ‘the right of the publicto correspond by means of the international service ofpublic correspondence’ (CS art. 33). The secrecy ofinternational correspondence is also provided for,

80 EXPANDING GLOBAL COMMUNICATIONS SERVICESthough in terms which permit that secrecy to be brokenin appropriate cases (CS art. 37.1. and 2).Telecommunications have a content, and questions canarise as to the lawfulness of that content. Thedevelopment of the INTERNET seems greatly to haveincreased the abilities of many to send and receivemessages. That is good, and within the scope of therights listed above. But how do these rights interrelatewith concerns as to crime, terrorism and the like. Whatof intellectual property, or the locus of transactions forthe purpose of contract, delict (tort) or taxation? Theseare not specifically a matter of spacetelecommunications, and go to content rather thantechnology. For those reasons I do not pursue them.But it is useful to remember we are dealing with onlyone side, the technical side, of questions of international(and national) telecommunications. Variousorganisations and conferences are at work on theseother questions, as are some legislatures. This aspectof expanded global telecommunications should not beneglected.Commentary PaperAlfons A. E. NollFormer Legal Advisor of the I.T.U.,Attorney at Law and Of Counsel of theGeneva Office of theBaker & McKenzie Law Firm© A . NOLL 1999All rights reservedMr. Chairman, Ladies and Gentlemen,To be the first “commentator” on Professor Lyall’sDiscussion Paper on “InternationalTelecommunications” is for me as the former ITULegal Adviser ( from 1979 to 1997) not only an honour,but also and particularly a real pleasure. As I should beshort and leave sufficient time to my two “cocommentators”,let me directly go “medias in res”!1. First of all, my thanks and congratulations go toProfessor Lyall who has done an admirable “job”by presenting us a fascinating paper full ofmaterial, evaluations, judgements, suggestions andnew ideas, which just call for and provokecomments - both concurring and supporting, butalso diverging or simply dissenting ones - as well asthey invite to raise questions. This will certainlyhelp materializing the author’s stated intention, i.e.“to trigger discussion”. Although my commentswill, of course, concentrate on the second half ofhis paper mainly dealing with the ITU, I shallquickly address a few points put forward orhighlighted by Frank Lyall in the first two parts ofhis paper, as I found them particularly interesting.2. As far as his “Introduction” is concerned, I fullyshare, on the one hand, his fear that today’seasiness to communicate risks to becomedetrimental to balanced, thought-through andseriously considered decision-making at all levels.Both by e-mail and mobile phone, we all push eachother for constantly quicker, but certainly notnecessarily better “action”, the substance of whichrisks to suffer! On the other hand, I also share the“petitum” expressed by him, but not alwaysstrictly followed through in the later part of hispaper, “that as much of the population of the worldas possible should be able to gain from the benefitsthat have come since the opening of the spacetelecommunications systems”. Some of hiscategorical and certainly justified evaluations,judgments and pronouncements would benefit frombeing accompanied by a few concrete, illustratingexamples. As he correctly finds it “curious” that“solutions to modern problems often are directlytraceable to basic concepts worked out” long timeago in the past, we should ask ourselves: Is this nota sign of lack of imagination on our part, inter alia,due to the hectic and cantering booming of telecomdevelopments “leaving us” - only seemingly andperhaps even as an excuse! “no time” to quietly sitdown and work out new concepts perhaps moreadequate to respond even better to the telecomproblems of our time and the next century, not tospeak of millennium?

EXPANDING GLOBAL COMMUNICATIONS SERVICES813. In his second Chapter dealing with the matter of“privatisation and competition”, he addresses atlength the “global telecommunications entities”and states that “large business through take-oversand mergers” go “along with the notion ofcompetition ... now a dogma in internationaltrade”. Two questions come to my mind: Is therenot a certain contradiction between the “dogma” ofcompetition and the trend of the constantlyincreasing number of always bigger and largermergers or take-overs, which might sharply reduce“competition” finally to a bitter battle between onlya few telecom giants? And: Do such mergers andtake-overs themselves not hide and cover up thereal problems which those “getting married” cannotsolve individually any more and, therefore, choose“to take refuge” in such mergers or take-overs,which usually at the beginning are welcome by themoney winning share-holders, but the long-termsuccess and even survival of which is by far notensured? In this optic, I like Frank Lyall's pictureof “the devil’s brew of commercialisation andcompetition”, share his “fear that the public interestof the world may be compromised” and fully agreethat “steps should be taken to ensure that the‘global public interest’ ” - which he later also callsthe “general world public interest” and also simplythe “general world interest” - “is protected byappropriate machinery”. His fine distinctionbetween “a public service” and “a service to thepublic” is also very pertinent, whereas he is, in myview, much too optimistic in pretending that“telecommunications can certainly be cited as onearea in which all countries willing and anxious tobenefit from space have been able to do so”.4. Lyall’s analysis of the changed or changingstructure and functioning of INMARSAT andINTELSAT and the conclusions drawn therefromare most interesting, but also show that they cannotsimply serve as “models” for “those who wouldseek the privatisation of the internationalorganisations”, such as the ITU. While I supporthis idea that UNISPACE III itself shouldappropriately urge the international community that“the basic concept of international public servicetelecommunications facilities should in the generalworld interest be continued, if necessary bysubsidising uneconomic connections, routes andservices, by the more profitable”( see end of 2.1),I consider it most unlikely that the ITU Secretariatsor even the Radio Regulations Board (RRB) wouldever be authorized by the ITU Member States “notto accept notifications from such a state”, which “isnot able properly to superintend” space activities or“to enforce the avoidance of harmful interference”(the end of the section 2 on "States’ supervisoryabilities”, page 69), as this would imply a qualitycontrolover any State’s supervisory mechanisms,which would be considered as unacceptable andincompatible with the principle of Statesovereignty. On the other hand, his suggestions onpage 69 dealing with “Flags of convenience:Homesteading” appear to me to be quite realisticand thus desirable. I see great merit in Lyall’sanalysis of, and proposals for, the matter of“Licensing” (see page 70), cumulating in thecreation of a “global CommunicationsCommission” for licensing “decisions affecting theworld” being made “by a world authority”, in orderto ensure that “the interest of the world as awhole” be protected against the variety of divergingcommercial and national interests, although therealization of such a clearly “supra-national”solution will certainly meet strong objections, needstime and thus is, as of today, only “music for thefuture”! (But see also paragraph 17 below).5. I now turn to the Chapter of the Discussion Paperthat, for reasons beyond my comprehension, isentitled “Radio Matters” and deals in its first subchapterwith “The ITU in general”, which, in myunderstanding should have been the main title forthat Chapter, the structuring of which couldcertainly be improved. As to the ITU’s“Background” (see page 71), it cannot be heldthat, after World War II, the Union adapted “itsconstitution to the UN model”. Far from: Contraryto the UN, it maintained its - what is called -“federal structure” with a General Secretariat (GS)and three Consultative Committees, each headed byone elected official, i.e. the Secretary-General or aDirector respectively and retained, following thetradition since 1865, the “InternationalTelecommunication Convention” only as its basicinstrument, which not earlier than in 1992 was

82 EXPANDING GLOBAL COMMUNICATIONS SERVICESupgraded to a “Constitution” (CS) like since longin the other UN Specialized Agencies,supplemented by a “Convention” (CV). Withregard to “The ITU and Development” (see page72), it must not be forgotten that the ITU hadalready since the late 1960's in its GS a ‘TechnicalCooperation Department” providing technicalassistance in the telecom field to developingcountries and participating closely in the executionof UNDP programs and projects. This Departmentand its activities became already upgraded to the‘Telecommunications Development Bureau(BDT)” in 1989 at Nice and thus put on the samelevel as the traditional “permanent organs”, i.e. theGS, IFRB, CCIR and CCIT T: an action which hadindeed to be taken politically vis-a-vis thedeveloping countries! It was, therefore, only logicalthat the 1992 reorganization of the ITU resulted inthe three Sectors, known as ITU-R (radio), ITU-T(standardization) and ITU-D (development) withtheir respective bureaus and elected directors. Itmust equally not be overlooked that technical aid,assistance and co-operation in the telecom field canbest be provided by the ITU itself and not throughother general, development agencies. This is - bythe way - in the best interest of both the developingcountries and the industrialized ones, for whichthus interesting markets are open. In this respect, Ientirely disagree with Frank Lyall’s conclusionsand hold that it has “been wise” to include thewhole development of technical assistance and cooperationin telecom matters in the realm of theITU and not elsewhere.6. With regard to the “Radio Regulations Board”(RRB) (see page 72), practical experience in theITU-R since Kyoto 1994 has amply demonstrated,as all ITU insiders will confirm, that “a full-timeBoard would” not “be better”, and that a part-timeBoard is not only quite sufficient ( and much lesscostly!), but should also be maintained and not beabolished, as certain radio circles still had intendedand expected before and in 1994; by the way, therecent increase in 1998 from nine to twelvemembers is exclusively due to considerations of“equitable geographical distribution amongst theregions of the world” (CS No. 62 ). Whilesomehow sharing Lyall’s “fears as to impartiality”,I must admit that since 1994 not one single incidenthas become known, which would justify this fear.Furthermore, the qualification requirements for,and other provisions concerning, the RRBmembers, which “shall serve ... as custodians of aninternational public trust”, have remained insubstance the same as they had been for themembers of the old IFRB (cf. the provision in CSArticle 14 and CV Article 10).7. In the Section on “Voting rights and Finance” itis - somewhat misleading and certainly completelyunintentionally - stated that “90% of themembership pays 10% of the general costs of theUnion”. According to the detailed figures justobtained from the ITU’s Finance Department, forthe purposes of the present comments, the realfigures for the ITU membership and their bearingthe costs of the ITU Budget are as follows: 10%bear 75%; 15% bear 80%,and 25% bear 90%, sothat it may only be held that - in the worst case ofcalculation! - “75% of the membership” - andcertainly not “90%”! - “pay 10%” of the Union’sbudget! Without denying “a disparity betweenvoting weight and financial weight”, which, at anyrate exists in all organizations of the UN System, Ican simply not follow Lyall in his conclusion that“such a disparity is wrong, not to say grotesque”,as I consider it dangerous to add in this context“the imbalance among states of practicalcompetence in telecommunications”. Seriouslyinvoking the latter argument could indeed become“a potential threat to the proper and satisfactoryfunctioning of the Union”. No steps “to restore”any such disparity or imbalance should be taken,e.g. by - as Lyall envisages - relating “votingweight to financial contribution, and perhaps totelecommunications usage both within and from/toa Member”. The maintenance of the principle of“freedom of choice of the contributory unit” hasbeen reconfirmed again at Minneapolis in 1998,and with good reasons. The Union will have welland “sprightly” survived with that traditionalformula, on 17 May 2000, for 135 years and hasremained “one of the success stories ofinternational co-operation”, to use Lyall’s ownterms. It is, in my considered opinion, quitepreferable to stick in this respect to the Union’s

EXPANDING GLOBAL COMMUNICATIONS SERVICES 83traditional approach than to introduce a system likein the UN or many of its Specialized Agencies, bywhich the Organization becomes dependent, for25% of its budget, on one single Member State,whose financial contribution within the ITU doesnot even reach 8% of the budget. If such a Statedecides not to pay anymore the equivalent of such25% or to leave the Organization, the difficultiesand crisis would be much greater, as some sisterorganizationshad to experience, than continuing tolive with such disparity or imbalance as in the ITU,which had never to suffer under a similar situation!8. The ITU has only five elected “Officials” (see page73), to which “CS art. 27.2” = CS No. 154 applies,as it is also stipulated in CS Nr. 62 as amended atKyoto, the 12 members of the RRB are consideredas ’’experts on mission” in the meaning of the 1946UN Convention on the Privileges and Immunities ofthe UN and can in no way be considered as ITU“Officials”, and for them apply the specialrequirements referred to in paragraph 6 above.That all those 17 persons elected by the ITUPlenipotentiary Conference, the Union’s supremeorgan, “shall be nationals of different MemberStates” (ibid) considers Lyall as “too many”. Thisfigure of not quite 10% of the total of the 188 ITUMember States is, in my view, justified because itensures best possible “equitable geographicaldistribution amongst the regions of the world”(ibid), while Lyall’s “compromise” of “not morethan two persons of one nationality” would risk tojeopardize that latter requirement, as it could easilybring down the 17 elected persons to only ninenationalities. This would amount to just 5% of thetotal membership and really not be “equitable”!9. “The ITU Council” (see page 74) had alreadysince Kyoto 1994 a membership of 46 States, i.e. anumber which did not exceed the “25% ceiling”,which had been fixed by that PlenipotentiaryConference (PC) and which the 1998 MinneapolisPC did not change. I am afraid that Frank Lyall’ssuggestion for reduction of that number, theintroduction of a different concept, i.e. Councillorsnot representing anymore “individual ITUmembers”, but “on occasion (often indeed)”representing “the interests of groups of states”, anda change of “voting weight in Council”, byfollowing “the model of the INTELSAT Board ofGovernors”, will indeed remain “without muchhope”, as he himself assumes. I have lived throughand advised the ITU Council during 19 years inconstantly increasing composition, i.e. from 36 to41 to 43 and finally to 46 (its present size) and canassure everyone that the increasing size did notmake it a “cumbersome body”, although I basicallyam always in favor, like Frank Lyall, for smallersize bodies. However, one must keep in mind andadmit that for an organization of such a largemembership of 188 Member States, like the ITU,25% thereof forming its indeed “governingCouncil” for a period of over four years - with thePC as the supreme organ not meeting annually, butonly very fourth year, this size for the ITU Councilis really quite reasonable, representative andworkable. The latter is even more true for thepresent “concept” of its composition, which should,at any rate, be fully maintained. It would -worldwide - be more than difficult and indeed“cumbersome” to figure out any representation inthe ITU Council according to “the interests ofgroups of states”, as Lyall suggests. The interestsdiverge, and there are only a few regionalformations or organizations, like the EuropeanUnion (EU), in which almost all of the ITURegion B countries with converging interests andfilling eight (8) seats at the present ITU Council outof a total of 46 seats. It would take any PC a longand 'hard time, eventually wasted, to form suchgroups of interests for the sole purpose of electinga Council according to Lyall’s “different concept”.Such course of action might even risk to bring moreunrest and antagonism into the Union than it wouldproduce any beneficial outcome; it is too academicand should not be further pursued. Also, any“weighted voting rights” should simply beforgotten, because their introduction now, at thisstage of the overall political evolution, would be,in my mind, utopian and without any chance (invoting!) of success, because it would be consideredas retrogressive or simply “reactionary” by themajority of the Member States!10. Coming now, finally, to the “radio matter” (seeparagraph 5 above) and thus first to the “Paper

84 EXPANDING GLOBAL COMMUNICATIONS SERVICESSatellites” (see page 74), I can be rather short.Leaving aside here, as Lyall himself does, the“cost-recovery fee for the processing ofnotifications of satellite systems”, I whole-heartedlysupport his suggestion that “it would be wise wereUNISPACE III to stress the importance that statesfulfil properly and fully their internationalobligations”, whereas I disagree with him in that “alist of putative offenders would be salutary”. Sucha list (who should draw it up and publish it?)would in my view be counterproductive, politicallyunacceptable and even superfluous, since any“offenders” will be very quickly known by allinterested circles, as the “Tonga-case” has amplydemonstrated!11. As far as “Cost Recovery” (see page 75) isconcerned, my only comment is that I find itsurprising that Lyall in his discussion paper and itsfootnote 33 refers only to Resolution 91(previously numbered PLEN/4) of the 1998Minneapolis PC, dealing generally with “CostRecovery for Some ITU Products and Services”and not to the much more specific and in ourcontext more important Resolution 88 (previouslynumbered COM5/21) adopted by the same PC onthe “Implementation of Processing Charges forSatellite Network Filings and AdministrativeProcedures”. As I have dealt with the latter and itsrelation to Resolution 91 at length in paragraphs 35to 37 of my paper entitled “The Space Law RelatedRole, Activities and Contributions of the ITU in theLast Decade of the 20th Century” and presented toECSL 3rd Colloquium at Perugia/Italy (5-7 May1999), which will be before the UNISPACE IIIConference, I shall not repeat what is stated thereand make only reference thereto. But it is certainlyof interest to this audience to learn that the ITUCouncil, at its most recent, annual session in June1999 has, in conformity with the instructions givento it by the 1998 PC, taken concrete measures forthe practical application of this officially, newlyintroduced concept of Cost Recovery, in particularfor satellite network filings. It adopted its (sevenpages!) Decision 482 an the “Implementation ofCost Recovery for Satellite Network Filings” withits Annex A containing the “Schedule of processingcharges to be applied to network satellite networkfilings received by the Radiocommunication Bureauafter 7 November 1998” and its Annex Bcontaining the “Methodology” used and to be used.In the context of the present comments, it isobviously impossible to enter into details of thisepoch-making decision; I shall do so elsewhere inappropriate depth. However, a brief over-all idea ofthis landmark is appropriate here. The ITU Councildecided that the satellite (s.) network (n.) filings(fs.) as identified by Resolution 88 of the 1998 PC(see here above; a s.n. consists of one geostationarys., or one or more non-geostationary ss, and one ormore cooperating stations, see Nos. S 1.111 andSI. 112 and Appendix S4 of the RR) shall besubject to the “charges” set out in Annex A to thisdecision. Therein, nine (9) different “categories” ofs.n.fs. are, first briefly and then meticulously,described in detail, with reference to both the new“S” Articles and the old Articles of the RR. Foreach f. a “flat fee” is given in Swiss Francs, reaching from 1’200.— to 17’500.— maximum, to givehere a rough idea only. In the next column figuresthe number of pages in each category covered bythat flat fee, reaching from 7 to 34 pages. The lastcolumn states in Swiss Francs the “additionalcharge per excess page for publications with morethan the number of pages indicated in the precedingcolumn”, reaching from 100.— to 1’750.— SwissFrancs. Whereas there will be no cost recoverycharges for any n. for which the API or the requestfor modification to a plan was received prior to7/11/98, except for modifications to these nscommunicated to the Radiocommunication Bureauafter 7/11/98, or changes to the request formodification to the plan, which shall be subject toan additional charge per excess page “if theircumulative number of pages exceeds three times thenumber of pages indicated in Annex A at the timeof the original publication”. Payment of suchcharges, to be made on the basis of an invoice tothe notifying administration or, at the request ofthat administration, to the s. n. operator in question,after publication of the related special section,within a period of six months after issue of theinvoice or by 1 September 2000, whichever is thelater. Administrations shall be invoiced accordingto the charges (which the Council may change) inforce at the date of publication of their respective

EXPANDING GLOBAL COMMUNICATIONS SERVICES 85ns. For more ample details of this sophisticatedsystem, interested parties may get the full text ofDecision 482 by ordering Document C99/94 dated22 June 199 from the ITU Sales Section (Place desNations, CH -1211 Geneva 20, Switzerland;telefax: +41 22 730 51 94; e-mail: sales itu. int;http://www.itu.int/publications). Frank Lyall'ssuggestion that “UNISPACE III should welcomethis financial realism and perhaps advocate itsadoption elsewhere in the UN system in appropriateinstances” merits certainly to be pursued, but withemphasis on “appropriate instances”, i.e. withcaution and on a case by case basis, each case to beconsidered carefully as to whether or not it lendsitself for the application of this concept, which cannot become a principle to be applied generally.12. Lyall’s view of how the “Implied-Powers”concept (see page 75) could have been applied bythe IFRB and subsequently theRadiocommnunication Bureau and the RRB isquite interesting, though very far reaching and evenquestionable. To decline the acceptance of Tonga’snumerous notifications for reason of its “abuse ofthe notification system” by a treaty organ notspecifically empowered to render such an “abuse”-judgement and to draw such consequence of nonacceptanceis stretching the implied-powers conceptvery far. In the long run, the more cautiousapproach taken by the ITU bodies has, in my view,not been “wrong and weakening of ITU authority”(Lyall), but rather prudent and successful, as it hasprepared well the terrain for the final adoption bythe ITU’s supreme organ, namely the 1998 PC, ofthe dual and complementary concepts of both the“administrative due diligence”, by its Resolution 85(previously numbered COM5/11; see in this respectmy paper already referred to in paragraph 11above, in particular paragraphs 24 to 27 and 34therein), and the “cost recovery”, by its Resolutions91 and 88, both concepts being now generallyapplicable and going thus far beyond settling onesingle case of system-abuse by one Member State.13. Turning now immediately to the matter of“Allocations” (see page 76), Lyall’s call, in thisrespect and with reference to the “swift technicaladvances”, for “a general review of Allocations...in the light of modem requirements” and for“more rational allocations” which “would better fitpresent needs” is quite understandable and justified.The 1995 and 1997 ITU World Radio Conferences(WRCs) have tried hard in this direction and havealso brought about appreciable results in thisrespect, but they have also demonstrated theproblems and difficulties, as Lyall himself admits.A general review of the current ‘Table ofFrequency Allocations” as contained in Article S5of the last revision of the Radio Regulations (RR)and provisionally applicable only since 1 January1999 would require from all concerned anenormous preparatory work requiring considerabletime, manpower and money and could certainly notmaterialize “swiftly”, even without any “dragstemming from manufacturers” desirous “to recouptheir investment” made “on the basis ofknown allocations to particular services” (Lyall).There also remains the other, additionalconsideration that what would tomorrow be newlyand rationally allocated might be “swiftly” becomeout-dated a few month or years later - just becauseof the “swift technical advances”! Of course, thisshould not prevent from attacking a general andthorough review of the existing frequencyallocations, and it can only be hoped that theforthcoming WRC in 2000 will set the startingsignal for this gigantic exercise!14. Lyall’s philosophy with regard to “first come firstserved v. engineering” is most fascinating and hassome truth in it. But “the ‘first come’ concept”alone is - in a both policy and political perspective -not acceptable anymore to the majority of theTTUMember States and has precisely led to the“planning-exercise”, which resulted in the1985/1988 Plan adopted by the 1988 WARC-ORB. After 10 years of its existence, it is quiteobvious and undeniable that this Plan does notcorrespond to and satisfy anymore the needs of allconcerned, although the “growth in the number ofstates” since 1988 was not so enormous. It wasrather the change in the use and the nature of theservices now offered to the general public as directto-hometelevision which brought that plan out-ofdateand created a need for a re-planning.Therefore, the WRC-97 adopted a new BSS Plan in

86 EXPANDING GLOBAL COMMUNICATIONS SERVICESspecified bands for Regions 1 and 3 as newAppendix S30 of the RR. Thus, the “engineering”will continue and there will be no return to the pure“first come first served” concept anymore, at leastin my opinion!15. Lyall’s question as to “Public ServiceAllotments?”, on the contrary, is, in my view veryrelevant and timely and merits the greatest attentionpossible by UNISPACE III. I entirely agree withhis petitum “to secure the requirements of certainservices which fall into a ‘public service’category”, as this would indeed be “in the generalworld interest”. The ITU provisions in CS No. 17and 191 (concerning safety of life) and 200(concerning distress calls and messages) fullysupport the idea of entering for such publicservices appropriate allotments in an agreed plan(cf. RR S1.17) to be worked out under the ITUauspices indeed in the best understood “generalworld interest”. I strongly hope that UNISPACE IIIwill pronounce itself in favor of such enhancedsecurity measures and invite the ITU to act andimplement them accordingly.16. Lyall proposes that “more should be made of theconcept of ‘cost recovery’” (see paragraph 11above) and that “consideration should be given tothe introduction of a ‘Resource Utilisation Fee'”(see page 77), according to the device that “thosewho are to gain commercially by the use of ageneral natural resource should be willing to payfor it”. This is undoubtedly a most interesting ideafor which he also quotes certain precedents. Hisassertion that “the free use of space” in Article I,paragraph 2 of the Outer Space Treaty would onlymean “available to all” and that the word “free”would not exclude charging a “fee” for such usefreely available is rather clever, and I like it.However, as he himself, I foresee “doubtlessopposition”, though not necessarily for the reasonof an “unlawful tax on enterprise”. I see muchmore difficulties coming from the innumerablequestions related to the introduction, the fixing andthe collection of the fee (in particular by which‘supra-national’ authority?), and finally to the usemade out of such fee, all questions which Lyallhimself sees as well. For such questions it may bevery difficult to find generally acceptable answersand solutions, and, for this reason alone, the wholeconcept risks to remain an academic andhypothetical one and may never see the light of dayin practical terms ! Unless... .it might convincinglybe coupled with the next idea of Lyall’s, namely thecreation of ”an international regulator”, who couldbe financed out of the income from the collection ofsuch fees, as I hold the other uses which Lyallenvisages for spending such income as too remotefrom the subject matter itself i.e.“telecommunications”, a remoteness which wouldnot exist in the use just proposed by me!17. Thus, I come to the penultimate section of Lyall’sindeed stimulating discussion paper, i.e. “AnInternational Regulator” (see page 78), whom Iwould immediately and more precisely prefer to becalled “an international telecom regulator”, aterm against which I cannot imagine that Lyallwould raise any objection! Now more to the detailsof this concept itself, which is perhaps the mostfascinating idea in this paper and corresponds to(or is inspired by?) the currently, quite modernconcept of an “independent regulator”, asadvocated by the relevant EU Directives andcreated already at many national levels! One thingindeed must be ensured, i.e. that such aninternational telecom regulator, onceinstitutionalized and installed, has to act quiteindependently. Precisely in the interest of “generalworld public interest in the provision of globaltelecommunications services open to all withoutdiscrimination” and to preserve and protect“telecommunications as a public service” (Lyall),such independence is imperative. Such regulatorcould ensure - at the international level - thebenefits of real competition for the public at largeand supervise, control and direct the telecommarkets’ evolution. Thus “the establishment bycompanies of dominant positions” in those marketscould be avoided, in order not to fall from the old“monopolies” into a few “oligarchies” producingthe same results as the former! Nationallyprevailing interests in e.g. licensing could by sucha regulator be counterbalanced and be madecompatible with “the welfare of the world as awhole” (Lyall) both at the technical, economical

EXPANDING GLOBAL COMMUNICATIONS SERVICES 87and political level. With the adequate decisionmakingcompetence and enforcement powers suchan international telecom regulator could indeed bemost beneficial in acting along the lines briefly andcertainly not exhaustively outlined in thepenultimate paragraph of this Chapter 4 of Lyall’spaper. In spite of his statement at the beginning ofthis Chapter that “the ITU is clearlyoverburdened”, Lyall is completely right in hisconclusion that “the ITU suitably adapted couldprovide this new regulator” (emphasis added here)or telecom regulatory body. Who else would havethe competence and authority in the telecom field totake over such a role, if not the ITU? If allconcerned agree - as it seems - that telecom-wisewe live in a “global village”, then we also need a“global” or “international telecom regulator”, aswithout such a regulator there will be no order inthat “village”. Such a recognition - after all thistalk during the last decade, at least, aboutderegulation etc. - comes rather late: but ‘better latethan never’! The ITU would, beyond any doubt, bethe appropriate focal point or “point of anchorage”for establishing such an international telecomregulator through which this world might indeed -to use once again Lyall’s own words - “come closerto the provision of global telecommunications bysatellite open to all without discrimination and ona basis of equality”! This workshop should have thecourage to recommend to UNISPACE III to includein its conclusions and recommendations aninvestigation and study ventilating the possibilitiesfor, and aiming at, the creation of such aninternational telecom regulator within the ITU.18. It is quite correct that, in his last, very shortChapter, Lyall, at least, raises the burning issue of“The Content of Telecommunications’’, as it iswise that he decided “not to pursue” - in the contextof this discussion paper on “InternationalTelecommunications - all the questions he raisedtherein and all the others which also remain openand are not mentioned therein, but are “content”-related and badly require answers and solutions, sothat “this aspect of expanded globaltelecommunications should not be neglected”(Lyall). As important as they are, they go farbeyond “ the technical side” (Lyall), with whichalone we are dealing here and for the treatment ofwhich the ITU remains worldwide the best place,whereas the ITU is neither mandated nor equipped,nor should it, in my view, ever claim to become orbe made competent, to deal with any matter relatedto “the content of telecommunications”, followingthus the good, old advice : “Cobbler, stick to yourlast!”19. My foregoing comments, I hope, have amplytestified the excellency of Frank Lyall’s discussionpaper, the contents of which has been - at least forme - as “sprightly” and rich of new ideas asstimulating and provocative, like a real “discussionpaper” by its very nature and purpose should be!20. With the further and final hope that Frank Lyall, inhis good Scottish sense of humor, will understandand appreciate that I could not always agree withhis philosophy, ideas and arguments, and lookingforward to his replies to my comments, I close here,so that you, Mr. Chairman, may pass on the floorto the two other commentators on his discussionpaper! I thank you and the audience for the patiencewith which you have listened to me!Commentary PaperJonathan F. GallowayProfessor of PoliticsLake Forest CollegeLake Forest, IL 60045U.S.A.1. Professor Lyall raises the question of howcommunications revolutions can have consequenceswhich are both efficient and equitable, (p. 64)I would answer that innovations can be introducedin both an efficient and equitable manner, althoughnot necessarily. If we rely on utilitarian ethics andare concerned with the consequences of our actions

88 EXPANDING GLOBAL COMMUNICATIONS SERVICESand not with our intentions, or deontological ethics,then, for instance, in the parlance of the ITU, wemay find that “first come, first served” is efficient(pace “paper satellites”) and equitable because theworkings of the market may, through the invisiblehand, promote services for disadvantaged personsand countries which were not previously available.On the other hand, a plan based on the idea thateveryone and every state should be treated equallymay sound good insofar as intentions areconcerned, but the path to hell is paved with goodintentions, as we have seen all too readily bylooking at recent history. An a priori plan will notbe able to cope with all the complexities of the realworld and the unintended consequences of its owngood works. In this sense, being efficient, if themarket is efficient, is a way of being equitable,although certainly not every person or every statewill be treated equally. Some may be worse offthan others, but everyone may be better off.2. Professor Lyall believes that competition is all welland fine but it needs to be regulated in the “globalpublic interest” (p. 65). Certain services should beprovided globally even if they are not profitable.Re #1 above, this would be equitable, but notefficient but it could be managed as a collateralaspect of market dynamics assuming that not toolarge a piece is taken out of the market pie. Forinstance, if public goods cost 5-10% of what themarket produces, then I would agree that globalpublic services should be provided. If one goesabove that take, then we are in danger of killing thegoose that lays the golden egg. If we have a plan tohave a better golden egg, we may get no egg at all.Another problem concerns the structure of themarket? Professor Lyall is worried thatcompetition is “dogma,” a kind of new ideologywhich ignores equity. What if the market is notcompetitive? It could be monopolistic oroligopolistic. There would then be market failuresand negative externalities. These developmentswould then justify economic regulation, regulationto keep the market competitive. But how could thisbe done at the world level? It is hard enough to dowithin national economies. We do not need to gothis far, however. We already have global publicservices such as providing for safety of life at seathrough the Global Maritime Distress and SafetySystem (GMDSS). What we need is an inventoryof these services and their costs and benefits.3. Professor Lyall questions whether some states arereally functioning countries. For instance, he notesthat “some states are in the business of being taxhavens” (p. 69) for businesses located elsewhere.What seems to be a sovereign state may be anoutpost of a multinational corporation locatedelsewhere. The MNC may be “homesteading” in ahost nation.UNISPACE III should discourage this practice, asProfessor Lyall suggests, (p. 70)4. Professor Lyall contends that “decisions affectingthe world should be made by a world authority.”(p. 70)I would agree insofar as public goods areconcerned, but not private goods. For instance,pricing services affects the whole world but it isbest left to the market, while allocating orbital slotsand the frequency spectrum should be publicfunctions provided by the ITU.5. But, is the ITU organized efficiently and equitably?In the ITU, “90% of the membership pays 10% ofthe general costs...” (p. 73)What is indicated here is that while the market mayproduce market failures, public organizationscreated to correct these failures by providingcollective goods may produce inequities of theirown.Professor Lyall proposes a solution - ‘To relatevoting weight to financial contribution and perhapsto telecommunication usage both within andfrom/to a Member.” (p. 73) I would agree,thinking in particular of the success of theINTELSAT and INMARSAT models in thisregard.6. There are other ITU imperfections:

EXPANDING GLOBAL COMMUNICATIONS SERVICES 89For instance, instead of a simple filing fee, it wouldbe more financially realistic to have a cost recoverysystem. Even a third alternative merits evaluation.This would be a resources utilization fee (see no. 8below).7. The ITU should be strengthened by explicitlyrecognizing that it has implied powers to carry outits functions, (p. 75)I would second this point. Otherwise we shall seemany anomalous and awkward situations developbased on legal technicalities, but not on efficiencyand equity.8. Professor Lyall suggests that freedom in space doesnot mean freedom from fees. (p. 78)Specifically, there should be a resources utilizationfee for the radio spectrum and orbital slots. Thesefees could be used for public purposes of the UNsystem such as fostering development. I wouldagree. This is done in the U. S. While thefrequency space used to be assigned without moneychanging hands, the U. S. now auctions off parts ofthe spectrum. If this were done at the level of aninternational organization, it would provide at theworld level what the treaty for the organizationsays it should provide, for instance, development,as in electronic commerce for developing countries(EC-DC).9. Probably the most significant suggestions inProfessor Lyall’s paper is that an internationalregulator be established (pp. 78-79). Francis Lyallsees the ITU as being overburdened. There are fivereasons for going beyond the current system. Letme analyze and critique these points:a. Part of the UN and ITU mandate is to havetelecommunications serve public purposes.This is not being adequately addressed in thecurrent context of commercialization,privatization and profit-maximization.I would agree that the workings of the marketdo not necessarily provide for the publicinterest either within countries or betweenthem. There can be market failures andnegative externalities as mentioned above. Forinstance, greater communications can meanmore opportunities for disseminating hate andfear, a point Professor Lyall brings up on p. 79in a section “The Contents ofCommunications.” On the other hand, morecommunications can create greater mutualinterdependencies of a positive sort within andbetween nations, e.g., opportunities fordistance learning and worldwide “virtualuniversities.”However, to have an international regulatorattempt to provide public services could resultin nonmarket failures. This problem should beclearly addressed in any such proposal,especially given the law of unintendedconsequences. For instance, the internationalregulator could be captured by powerfulinterests operating behind the scenes. So calledmarket-based regulation of the spectrum in theU. S. seeks to avoid this pitfall.b. “Although competition is a watchword muchtouted. There is a tendency toward theestablishment by companies of dominantpositions in markets.”I would agree, and, as Professor Lyall notes,we do have antitrust mechanisms at thenational and regional levels. From theperspective of logic, there should beregulations of the same type at the world level.But I do not believe that this is politicallyfeasible. It would be labeled as the beginningof world government by proponents ofnationalism. As Oliver Wendell Holmes oncesaid, “The language of the law is not logic butexperience.”c. Professor Lyall contends that each state seeksto serve its own national ineterest in assigninglicenses to telecommunications entities withouttaking into consideration the world interest.This is true although some national lawsmandate serving world interests, e.g., the

EXPANDING GLOBAL COMMUNICATIONS SERVICESNASA Act declares that it is “the policy of theUnited States that activities in space should bedevoted to peaceful purposes for the benefit ofall mankind.” Further, by serving the nationalinterest in a non-zero sum game situation, therecan be a win-win scenario as well as a loselosepossibility...Of course, there could alsodevelop a zero-sum game situation in whichone state loses and the other gains. In thiscase, the world interest does not get factoredin.Clearly, in this age of globalization whichdevelopments in satellite communications theInternet, GPS, et. al. have done so much toencourage, the world interest may not bedeveloped by the dynamics of the market place.Therefore, auxiliary precautions are warrantedin terms of a stronger presence to serve discretepublic interests at the world level and managethe connections between them. For instance,one might note the necessity of coordinatingnatural disaster relief with public health andpublic telecommunications services.ITU technical decisions have becomepoliticized because of lobbying for commercialadvantage. Therefore, the world interestrequires more separation of technical expertisefrom political and economic forces.I agree and following the FCC model of an“independent regulatory commission” wouldcontrol to some extent for this malady. But, inthe end, technological change does have toaccommodate political and economic realities.Political and economic decisions and policiesset the boundary conditions for what istechnologically feasible at any particular pointin history. One may note that direct broadcastsatellite technology existed long before it wasfeasible to introduce it to the market. Thesame may prove to be the case with some ofthe newer LEO systems.conference, the overall result of the conferencecan be distorted and unsatisfactory.”Certainly, if the whole is the sum of its parts,and some of the parts are broken, the wholewill not be very whole. And, we would wish inan ideal world, that the whole would be morethan the sum of its parts in terms of providingpositive externalities and public goods to theworld. Therefore, a continuing andprofessionally staffed commission on the modelof the FCC should take on the job of advisingwhat the greater long-term interest is. Butagain this advice would be to political andeconomic actors which may not choose toaccept it.In summary, there are reasons for an internationalregulatory authority perhaps on the FCC model, butsuch a model, while preserving professionalcompetence, also exists in a political and economiccontext. For instance, the five FCC commissioners inthe United States are politically appointed and they aresubject to lobbying pressures. So while the ITU isoverburdened, as Professor Lyall notes, to move on tothe next stage of political, economic and technicalintegration will require a political will and leadershipthat do not yet exist. My prediction would be that thisprocess will occur incrementally and pragmatically.The role of the IISL and others in the academic spacecommunity is to push the envelope a bit further out, andit is that function which Francis Lyall has performedably and well here today with his analysis and hischallenges.“Where an element in a delegation is devotedreally to only part of the agenda of a

EXPANDING GLOBAL COMMUNICATIONS SERVICES 91And, as indicated above, I agree with three of hisspecific proposals: 1) “To relate voting weight tofinancial contribution and perhaps totelecommunication usage both within and from/to aMember;” 2) To change the fees assessed by the ITU tomore of a mix of cost recovery and resource utilizationfees; and 3) To explicitly recognize the ITU’s impliedpowers. On the other hand, while agreeing with someof the argument about the need for an internationalregulatory authority beyond the ITU, I think that manyof the points are not politically feasible. Thus I preferan incremental approach to increasing internationalregulation.Commentary PaperRam JakhuMr. Chairman, my comments on Prof. Francis Lyall'spaper will be only few and very brief. Being therapporteur of this session, I had the privilege ofreceiving and reading the comments of the other twocommentators. Therefore, I would avoid repeating whatthey have already said. Secondly, my commentsprimarily relate to those issues over which I have adifference of opinion with Prof. Lyall’s paper.First of all, I want to reiterate what the two othercommentators have stated that Prof. Lyall’s paper isvery interesting, exhaustive and more importantly veryprovocative. It has, in my opinion, fully served itspurpose of being a discussion paper. I am, in general,in agreement with Prof. Lyall's suggestions andproposals for the improvement of the existingregulatory system for satellite communications.Prof. Lyall has reminded us of UNGA Resolution1721 of 1961 (which incorporates an important legalprinciple that: “communications by means of satellitesshould be available to the nations of the world as soonas practicable on a global and non-discriminatorybasis”) and has rightly used it as a yardstick to measurethe developments in the field of satellitecommunications. I will propose that we should go astep further and recommend to UNISPACE HI that thisfundamental principle should be reiterated in theConference's final report. In addition, we shouldpropose that in future an appropriate and effectiveinternational regulatory regime should be created inorder to implement, in practice, this principle. I furthersuggest that our proposal should also include thatUNISPACE III declare that radio frequencies and thegeostationary orbit as well as other orbits areinternational public property that must be used andexploited for the benefit of all nations in order toachieve the above mentioned principle of UNGAResolution 1721.Prof. Lyall argues that since some States lack theability to exercise supervisory role over its nationallegal entities that engage in the exploitation of outerspace, as required by the 1967 Outer Space Treaty,ITU should be permitted not to accept from such Statesnotifications for registration of their satellites. In myopinion, it is difficult to accept this proposal becauseonce the international community accepts a country asa State, the community recognizes that that country isable to fulfill its international obligations. Theinternational community could not solve the problem of"flag of convenience" in maritime industry, I doubt thatsuch problem would be avoided in the case of outerspace exploitation.The Tongasat issue: On this issue, I have perhapsthe most serious difference of opinion with Prof. Lyall'spaper. Contrary to Prof. Lyall's views, I fully supportwhat Tonga has attempted and achieved for thefollowing reasons:(A) Tonga played according to the rules that wereinitiated, devised and strongly supported by those Statesthat objected to Tonga’s initiative. Under the ITU rules,each State has been and is allowed to secure radiofrequencies and orbital positions to meet its needs.Who determines a State’s needs? No one, but theconcerned State. These needs might be for domestic orinternational services (or what we call today "globalservices"). Some States have secured radio frequenciesand orbits for GMPCS for their national entities.Should we designate these States as ’’abusers” of theITU system?

92 EXPANDING GLOBAL COMMUNICATIONS SERVICES(B) The States that objected to Tonga’s notification toITU have secured radio frequencies and geostationaryorbital positions for their private entities to provideinternational services. These entities have been and arebeing encouraged to secure foreign financialparticipation. Pursuant to the WTO initiatives forforeign investment and globalization of businessoperations, such entities could be/would be foreignowned and controlled to a large extent, and in somecase even 100%. In my opinion, they are and would bedoing exactly what Tonga did; i.e. using radiofrequencies notified and registered by one State andused and exploited by the companies of the other(s).In my opinion, the Tongasat case has been morepsychological problem than a real one. The States thatobjected to Tonga’s request for geostationary orbitalpositions, I think, were surprised to see how a smallState could “out smart” them. Thus they have putunfair pressure on Tonga. Such pressure has neverbeen imposed on any other State in any previous case.I believe that the most important achievement ofTongasat issue has been that it showed clearly theweakness of the first-come first-served rule that hasbeen strongly guarded by the States that objected toTonga.Prof. Lyall proposes to relate ’’voting weight tofinancial contribution” to ITU. In my opinion, thisproposal is impractical in law for the following reasons:(A) I do not think that the international community isyet ready to do away with the most fundamentalprinciple of international law; i.e. equality of States. (B)We have seen, in some cases like INTELSAT andINMARSAT, that States appear to have accepted someexceptions/restrictions to their sovereign equality butthat has happened only at the level of their operatingagencies and more importantly when States or theircompanies are receiving something in return. I see noreason why a large majority of States will do away withthe rule of one-state one-vote in ITU. (C) Moreimportantly, in practice, 10% of the States thatcontribute to the 90% of ITU budget (if one acceptsProf. Lyall's figures) actually get 95 to 100% of thepie. What I am saying is that those who contribute alion’s share actually get lion’s share of the pie too. Thebest proof of this is the results of WorldRadiocommunication Conferences (WRC) that allocateradio frequencies to various services. It is almostimpossible to have any proposal accepted by a WRC ifthat is not fully supported by a small minority of States(i.e. the major contributors to the ITU’s budget).Secondly, fairly a large majority of the States has beenpressing for a change of the first-come first-served rulefor decades. What they got was a priori plans only fortwo services (BSS and FSS) in two frequency bands(12 GHz and 6/4 plus 14/11 GHz) mainly because ofthe strong opposition by this small minority of States.Therefore, what Prof. Lyall is proposing is actuallybeing practiced, but one should not yet expect its dejure acceptance by the international community.I agree with the following two points raised byProf. Lyall and would like to repeat them in order tohighlight their importance. They deal with (A) thesource utilization fee; and (B) the creation of aninternational regulatory body.Since 1983, 1 have been proposing the imposition of afee for resource utilization and I am glad to see thatfinally in 1998 the ITU Plenipotentiary Conference hasagreed to impose such a fee. I believe that it will, tosome extent, solve the problems of “paper satellites”and of inefficient resource allocation.I also agree with Prof. Lyall's proposal for thecreation of an international regulatory body - which inmy opinion should be charged with, inter alia, theresponsibility of achieving the goals set in UNGAResolution 1721, as amended; though I am not surewhether the US Federal Communications Commission,as suggested by Prof. Lyall, is a good model for such abody, but this is a matter of details. The ITU confinesitself to technical issues of resource allocation andtechnical standards. The WTO, on the other hand, isoverwhelmed with all issues of international trade ingoods and services but has almost nothing to do withglobal (as opposed to national) public good as far astelecommunications are concerned. Therefore, theWTO can not be expected to implement the principle ofUNGA Resolution 1721.However, on the one hand Prof. Lyall proposes theweighted vote procedure for ITU and on the other handhe suggests that ITU could be an internationalregulation body. In my opinion, these two proposals are

EXPANDING GLOBAL COMMUNICATIONS SERVICES 93somewhat contradictory. Time does not permit me to gointo details of my arguments. I therefore stop here.But my final word is that Prof. Lyall’s paper is anexcellent document. I agree with all his suggestionswith the exception, of course, of some points I raised inmy comments.Thank you for your attention.Summary ReportThis session examined the gigantic growth in worldwidecommunication services, considering the implicationsfor use of radio frequency spectrum, internationalcooperation and organisation, relationship to economicexpansion and the impact of global personalcommunication services.• Space Telecommunication should beappreciated as a major transformer for oneworld.• Privatisation of former public entities forcommercial purposes.• Investigation of the future role of sovereignStates and operating agencies.• Investigation in the development ofprivatisation and competition (some hugecompanies control the world market).• Identification of the difference between publicservice and service for the public.• Profit is the main but must not be the onlymotive of privatised telecom entities.• Creation of an international regulatory body toensure that space telecommunication remains abenefit of all mankind without anydiscrimination of access and use. ThereforeUNISPACE III should integrate this issues inthe Vienna Declaration.• Study on the establishment of an effectivesupervisory regulation office for supervision ofthe use of natural resources, supervision ofcompetition, making telecommunication openfor the whole world.• Elaboration of an action plan for developingcountries (sustainable development) ascommunication is a basic human need.• ITU coordinates and collects information on alllaunches.• Establishment of a linkage between ITU andOuter Space Treaties.• Investigation of the need for a full time radioboard of ITU.• Frequencies for GPS shall be protected(against first come, first served principle).• Investigation into the necessity of developmentaid (technical cooperation and assistance)within ITU as ITU is a primarily technicalinstitution.• Study on the necessity of transform RadioRegistration Board in a full-time body.• Discussion whether the system that all 17members of the Radio Registration Board haveto come from different States, should be kept.• Discussion whether the Council should stillconsist of 46 members or may be reduced.• Study on the financial contributions of theMember States and the relation to the weight oftheir vote which differs from the usual UNdivision.• Cost-recovery problems (e.g. WIPO): thosewho cause the costs, shall pay for that (see alsothe decision made by ITU Council last June).

A resource management/administration feeshould be paid annually by the users.Universal access fund might be used for thementioned proposals.More allotments for space services should beerected.Invitation of people with scientific expertise aswell as academics into the workshops.Public services as a global public good shouldbe provided by the operators.EXPANDING GLOBAL COMMUNICATIONS SERVICES

EXPANDING GLOBAL REMOTE SENSING SERVICESSESSION 4Chair: Dr. Ernst Fasan (Austria)Coordinator/Rapporteur: Dr. Marietta Benko (Germany)

SESSION FOURExpanding Global Remote Sensing ServicesDiscussion PaperExpanding Global Remote Sensing Services:Three Fundamental ConsiderationsJoanne Irene GabrynowiczDepartment of Space StudiesUniversity of North DakotaGrand Forks, North Dakota, USA 58202-9008gabrynow@space.eduIntroductionAs with all space activities, remote sensing was begunduring the fear-filled days of the Cold War. It wasdriven, in large part, by motives of national prestige andpower. The international legal community responded byaddressing the questions of law and equity to whichremote sensing gave rise. The response included therecognition that while remote sensing technology wasdetermined by national needs and goals, the activityitself was, by nature, a global one and occurredsimultaneously in the two different legal regimes ofspace and Earth. The resulting law includedinternational as well as national interests; equity, aswell as law; and the interests of sensed states, as well assensing states. For a brief period of about 20 yearsthese initial legal responses - while never consideredfully adequate - did establish some fundamentalprinciples by which nations agreed to be governed.In the 1990's, the advent of commercial spacebasedsystems - an unthinkable option during the ColdWar - has revitalized the legal debate and highlightedsome of the recognized inadequacies of the internationalremote sensing legal regime. The attention fromindustry, government and academia has been intense,raising dramatic questions. What legal protection isafforded to commercial remote sensing data? Willprivate systems function like spy satellites for hire?Will private systems be governed by international law?The legal community is once again engaged inthese, and other important questions. Details of legalframeworks,1data access,2 intellectual property,3 andmore are all within the current legal dialogue. However,while the critical specifics of these and related issueswill continue to engage the legal, scientific, andindustrial communities for many years to come, thereare still legal fundamentals in need of consideration andaction. It is the purpose of this paper to raise three1Project 2001 Working Group on Remote Sensing, LegalFramework for Commercial Remote Sensing Activities -Proceedings of the Project 2001 Workshop on Legal RemoteSensing Issues. Toulouse, France, (1998).2 Committee on Issues in the Transborder Flow of ScientificData. Bits of Power Issues in Global Access to Scientific Data.National Research Council, National Academy Press,Washington, DC, (1997).3 European Space Agency, Workshop Proceedings IntellectualProperty Rights and Space Activities. European Space Agency,Paris, (1995).

98 EXPANDING GLOBAL REMOTE SENSING SERVICESfundamental points regarding expanding global remotesensing services.4 For it is how these fundamentalconditions develop that will set the stage for scientificand industrial applications of current and plannedservices as well as international standardization andsystem ownership and management.This paper is set out in five parts, the first of whichis this introduction. The second section raises thequestion of the status of the United Nations PrinciplesRelating to Remote Sensing o f the Earth from Space(Principles)5 in international law and takes the positionthat the Principles are relevant to the expansion ofglobal remote sensing services and have acquired theforce of law due to the practice of remote sensingnations. This section concludes that Committee on thePeaceful Uses of Outer Space (COPUOS) ought totransmit the terms of the Principles into a Treaty.The paper's third section addresses the increasingrestrictions on access to remotely sensed data and takesthe position that the openness principle upon whichmuch of remote sensing law is based is being weakened.The restrictions are being implemented for commercialand military reasons. Whether or not these will inhibitthe expansion of global remote sensing services will, inthe long-term, depend on two things: which services arebeing considered and a complex dynamic of politics,economics, and technology interacting with the law.This section concludes that these evolving situations aremaking, and will continue to make, important changesin the legal landscape of remote sensing services andwill require on-going attention.The long-term archiving of global data is raised,but not addressed in depth in section four. It servesmore as an invitation to the space law community tomount a long-term, concerted effort to consider thismost complex - and important - remote sensing activity.A concluding section follows.It should also be noted that this paper sometimes,of necessity, crosses the line between law and policy.This is appropriate, in the author's opinion, for tworeasons. First, law is codified policy and it isappropriate for lawyers to consider not only what thelaw is, but where it might, or ought to, develop. Thesecond reason is that the remote sensing activities of thelast three decades have been executed at national levelson the basis of policy as much as, perhaps more than,law, and, in many cases, the more flexible, dynamicnature of policy has moved ahead of the law.A final introductory note: although this paper raisesonly three fundamental points, each one contains withinit a wide array of topics. Therefore this paper is alsobroad and multifaceted and covers many aspects of theremote sensing legal landscape. This is intentional andit is respectfully presented with the hope that individualmembers of the space law community will finddifferent, important issues that interest them.The United Nations Principles Relating toRemote Sensing o f the Earth from Spaceare relevant to the expansion of globalremote sensing services and haveacquired the force of law. COPUOSought to consider transmitting theirterms into a Treaty.4 "Remote sensing services" is a broad term that can include awide variety of space-based and Earth based activities. Theyrange from government, private, and hybrid space segments,ground station developers and vendors, retailers of value-addeddata and information products, data and information brokersand distributors, hardware and software developers andvendors, and more. For purposes of this paper, all of these areincluded when the term "remote sensing services" is usedunless otherwise indicated. In the author’s view, this isappropriate since the paper is addressing fundamental pointsthat impact the expansion of all global remote sensing services.5 G.A. Res. 41/65,42 UN GAOR Annex (95th plenary meeting)at 2 UN Doc A/RES/41/65 (1987). [hereinafter, Principles],Relevance of the Principles to theexpansion of global remote sensingservicesProviding services, either by the public or privatesector, requires law. The stability and predictabilityafforded by law and legal institutions are cornerstonesof a successful commercial and public environment.This is particularly true in the case of new services thatare, by nature, global. In the case of remote sensing, the

EXPANDING GLOBAL REMOTE SENSING SERVICES 99move toward commercialization and the integration ofgovernment systems are being premised on a patchworkof international and domestic legal regimes that cancreate an uncertain legal environment.6 This increasesthe risk already inherent in applying a new technologyto a global service.As the oldest form of specific, international remotesensing law, the Principles have particular importancein defining the international remote sensing legalregime. Adopted to guide the behavior of nations, thePrinciples also hold nations responsible for the remotesensing activities of their non-governmental entities andfor activities conducted through internationalorganizations to which they are parties.7 The legislativehistory of the Principles contains extensiveconsideration of the role of private remote sensingactivities8 and they have, over the years, becomeincreasingly used, in practice and legislation, to guidethe behavior of private, public and hybrid publicprivateentities.9 The successful expansion of globalremote sensing services into the 21st Century requiresthat the status of these very important Principles, andthe extent of their application, be clarified andestablished.Clarity of the Principles' status is particularlycrucial in the expanding context of a hybrid publicprivate,international commercial remote sensingenvironment. The aerospace industry worldwide haslong been mired in controversies over different nationalphilosophies regarding the necessity or desirability ofpublic-private separation, direct and indirect subsidies,and trade practices. For remote sensing services, theseissues can be expected to be even more acute due to anumber of factors. First, major remote sensing nationslike France, Canada, India and Japan already operateremote sensing systems based on mixed public-privateinstitutions and principles.10 And even in the UnitedStates, where separation of public and privateinstitutions has been the policy, government-ownedspace corporations are being considered as cost-savingmeasures.11 Second, in leading remote sensing nationscommercial technology applications are clearlyemerging from a government-funded, militaryheritage.12 Third, post-Cold War national budgets arecreating pressure to forge public-private partnershipseven in nations historically more committed to theseparation of these sectors.13 Indeed, some observersopine that private companies that have alreadycommitted hundreds of millions of dollars indevelopment will only be able to survive with6Harr, Michael & Kohli, Rajiv, Commercial Utilization ofSpace an International Comparison of Framework Conditions.at 69-71 (1990); Spector, Leonard S., Not-So-Open Skies, 19906 Space Policy 17 (1990).7Principles, supra, note 5, Principle XIV.8 The individual debates and discussions in COPUOS and theLegal Sub-Committee regarding the commercialization of theLandsat system, SPOT and the role of privately funded systemsare simply too numerous to cite. For a discussion of some ofspecifi c questions regarding the role of private sector in remotesensing, see, Christol, Carl, Q. Space Law: Past. Present andFuture. 83-88, (1991)9 Land Remote Sensing Commercialization Act, 15 U.S.C.§§ 4201 - 4292 (1984) [hereinafter, Commercialization Act],Now repealed and replaced with Land Remote Sensing PolicyAct, 15 U.S.C. §§ 5601 - 5642 (1992) [hereinafter, Policy Act].;RADARSAT Data Policy , Document Number RSCA-PR0004,Sec. 10.1 b., (Canadian Space Agency), July 13, 1994, at 11.;ESA EnvisatData Policy, ESA/PB-EO (97) rev. 3, Paris,(European Space Agency), 19 Feb. 98.10 Bourely, Michel, "National Space Legislation in Europe,"AIAA, (1988). Mssr. Bourely notes a range of space servicesand activities that are a complex mixture of nationalorganizations, non-governmental agencies, and privatelycapitalized companies. This is a useful perspective for thispaper.11 Space News, NASA Considers Forming GovernmentCorporation, April 5, 1999, at 1, col. 1.12 Some systems with either a military technology heritage orwhich have been discussed as being able to provide a militaryheritage for commercial systems include Lewis, Clark, Helios,Eros, Orbview 4, RADAR1.13 Commercial Space Act of 1998, Public Law 105-303 (1998);Programs include Earth Observations Commercial ApplicationsProgram and the data buy program at NASA Stennis SpaceCenter.

100 EXPANDING GLOBAL REMOTE SENSING SERVICESgovernments as reliable customers.14 Further, existingpublic systems face uncertain futures. Even thoughthere is a statutory preference for a private Landsatfollow-on option, its future also holds the potential forhybrid public-private operations.15 Fourth, theparticular remote sensing activities that the Principlesare intended to address - "improving natural resourcesmanagement, land use and the protection of theenvironment"16 - are increasingly being identified amongthe potential markets for private and government spacebasedsystems'7 and value-added retailers 18and havebecome the economic rationale for aggressive,commercial-like cost recovery policies for some publicsystems. Indeed, the commercialization of the EuropeanMeteorological Operational (METOP) system and therecent adoption in the World MeteorologicalOrganization (WMO) of a precedent-shattering tiereddataaccess practice19 to protect the commercial value14 Defense Information and Electronics Report, DoD Needs ToBack Commercial Imagery Efforts, May 7, 1999, at 1.15 Policy Act, supra note 9, at 15 U.S.C. § 5641 a. 4 (1992).16 Principles, supra, note 5, Principle 1(a).17 "Today, the talk is of a 'niche' for commercial photographysatellites for mapping, supplying weather information,preserving the environment and monitoring forests against fires,In fact, two huge companies, in the United States and Europe,are showing great interest in the small satellites that IAI hasdeveloped." Ha'aretz, Outer Space —Clean Up Your Act, July28, 1998, at B3, provided by Information Division, IsraelForeign Ministry - Jerusalem, [hereinafter, Ha'aretz].of some weather data, dramatically demonstrates howcommercial and environmental issues are merging.Finally, the Principles, as part of the internationalbody of space law, also contain all of the public goodcharacteristics that are a fundamental part of that law:mutual cooperation of nations, equity, equality, and theuse of outer space for the benefit and in the interests ofall countries.20 The Principles must be defined topreserve and clarify these public good norms as well asto help define the rights, interests and obligations ofpublic, private, and hybrid entities.The current legal status of the U.N.Principles: accepted international lawThe dynamics of international relations commonlycause nations to selectively apply international law asthey attempt to define their own national interestswithin the international community.21 It is also commonfor legal and policy observers to disagree about therelative strength of new or evolving legal norms.22 ThePrinciples are no exception. It is sometimes argued thatthe Principles are not legally binding on individualnations due to their status as declared, yet uncodified,legal norms.23 However practice has overtaken thisview. In general, declarations of principles by theGeneral Assembly "if universally adopted and adheredto in practice, may be valuable evidence of internationalcustom, which in turn is a most important source oflaw."24 In particular, the Principles' "substance...has itsfoundation in space agreements agreed to in COPUOS,18 "In response to emerging environmental and land use issues,our team provides critical information in diverse areas such asnatural resource tracking, city planning, market research,environmental assessment, and detection of threats toecosystems." Pacific Meridian Resources,http://www.pacificmeridian.com/.19 WMO Res. 40, World Meteorological Congress (CG XII,12th Meeting), WMO Policy and Practice fo r the Exchange o fMeteorological and Related Data and Products IncludingGuidelines on Relationships in Commercial MeteorologicalActivities, (1995). This resolution addresses the exchange ofdata between national weather services, and the provision ofdata to third parties, including both the private sector and forscientific research. [Hereinafter, Resolution 40.]20 Principles, supra, note 5, Principle I.21 Christol, Carl Q., The Modem International Law of OuterSpace, at 729, (1982)., [hereinafter, Christol - Modern].22 U.S. Congress, OTA, Remotely Sensed Data: Technology.Management, and Markets. OTA-ISS-604 (Washington, DC:U.S. Government Printing Office), (1994) [hereinafter, OTA].23 Pace, S., Sponberg, B., and Macauley, M., Data Policy Issuesand Barriers to Using Commercial Resources for Mission toPlanet Earth, at 34, RAND, (1999).24 Jenks, C.W., Space Law, at 85 (1965).

EXPANDING GLOBAL REMOTE SENSING SERVICES 101supported by the General Assembly, and are binding ona very large number of States."25 Nations continue tocite the Principles as authority in domestic, bilateraland multilateral legal documents and in internationalfora.26 Legal commentators from various nations,including key negotiators of the Principles,27 hold theview that they are legally binding as a matter ofcustomary law. The space law community continues tocall for coordinated remote sensing legislation,28 and, inparticular, to place the "issue of [the Principles']conversion into [a] legally binding instrument" on theagenda of the Legal Subcommittee of COPUOS.29The stable, orderly extension of global remotesensing services into the 21st Century requires formallyrecognizing that the Principles are legally accepted.COPUOS ought to be encouraged to fulfill the intent ofthe Principles' drafters30 by transmitting their terms25 Christol, Carl, Q. Space Law: Past. Present and Future, at 94(1991), [hereinafter, Christol Past and Present]26 Commercialization Act, 15 U.S.C. §§ 4201 - 4292 (1984),Now repealed and replaced with Policy Act, 15 U.S.C. 9 5601-5642 (1992).; RADAR SAT Data Policy, Document Number.RSCA-PR0004, Sec. 10.1 b., (Canadian Space Agency), July13, 1994, at 11.; ESA Envisat Data Policy, ESA/PB-EO (97)rev. 3, Paris, (European Space Agency), 19 Feb. 98.; Principleso f the Provision o f ERS Data to Users, ESA/PB-EO (90) 57,rev. 6, Paris, 9 May 1994, (European Space Agency, EarthObservation Programme Board), Sec. 2 General Principles, 2.1Legal Principles, para. 2, at 2.; International Space University,Toward an Integrated International Data Policy Framework forEarth Observations Workshop Report. ISU/REP/97/1. 1996,at 8.27 American Society for Photogrammetry and Remote Sensingand the American Bar Association, Earth Observation Systems:Legal Considerations for the '90's. 132 - 133, (1990),[hereinafter, ABA].; Kawamoto, Chiyoshi, NASDA's Activitiesin the Field o f Remote Sensing, International Bar Association,10th Biennial Conference of the Section on Business Law,Hong Kong, at 5 (1991), [hereinafter, Kawamoto],28 Short Account, Beijing IISL Colloquium on the Law o f OuterSpace, 24 J. of Space Law at 151 (1996).29 U.N. Doc. A/AC. 105/674, (1997).30 Report, 25th Session o f the Legal Sub-Committee o f the UNCommittee on the Peaceful Uses o f Outer Space, J. Space Law48-49, (1986) [hereinafter, Report].into a treaty. The legal process that established thePrinciples, including their consistent use in settingstandards for bilateral and multilateral agreements, andtheir unchallenged existence for a quarter-centurydemonstrate that their authority rests on legitimate legalprocess and time.Legal processThe Principles were established according to therecognized legal process of first drafting generalprinciples and then seeking formal adoption.31 Theywere unanimously adopted as a resolution by theGeneral Assembly32 "in conformity with the UnitedNations Charter, furthering its purposes andprinciples.”33 Resolutions containing a declaration ofprinciples are "important tools in the process ofevolving international law."34 They "express a legalconviction" of the international community concerningremote sensing law and are a particularly "suitable formfor developing [the] international law of outer space fornew, more sophisticated space activities includingremote sensing."35Regarding the Principles themselves, they havespecific characteristics that strengthen their status.They begin with five definitions36 which set them apartfrom other declarations of principles and is "clearevidence" of the intention to establish general regulatory31 Kopal, V., The Role o f United Nations Declarations o fPrinciples in the Progressive Development o f Space Law, 16 J.of Space Law 5, at 6. (1988).32 Jasentuliyana, N., Remote Sensing and the Role of theUnited Nations, at 151.33 Kopal, supra, note 31.34 Kopal, supra, note 31.35 Kopal, supra, note 31.36 Principles, supra, note 5, Principle 1 (a), (b), (c), (d) and (e).

102 EXPANDING GLOBAL REMOTE SENSING SERVICESnorms.37 They also represent an intentional affirmationof, and return to, international agreement by consensusfor space technology after a previous departure fromthat process regarding direct broadcasting satellites. Assuch, the Principles represent an intention tocompromise rather than an intention to disagree. Thatcompromise was intended by the drafters of thePrinciples to serve as a first step in the law makingprocess which would eventually conclude in a formaltreaty.38On the domestic plane, the legislation of majorremote sensing nations has authority for thedevelopment of international remote sensing law similarto the way that practices of strong maritime nationsinfluenced the development of international maritimelaw.39 Specific standards contained in the Principleswere incorporated by the United States in its domesticlegislation twice.40 This was done to maintain the publicgood aspects of remote sensing, promote the broadestpossible data use, and to place the United States in afavorable position in relation to nations that arguedprior consent was necessary for remote sensing.41 Thislast point is particularly meaningful in the developmentof the Principles as accepted law. The influence ofU.N. declarations of principles is "strongparticularly...when the solutions included in suchprinciples end...controversies."42A member of the Japanese delegation whichadopted the Principles explains that in Japan, "there isno domestic law or regulation which directly regulatesremote sensing."43 Therefore, the Principles are "treatedas a substantial source of law for remote sensing" and"NASDA's remote sensing activities are surely beingperformed pursuant to these principles."44The Principles are also incorporated into thebilateral RADAR SAT agreement between the UnitedStates and another leading remote sensing nation,Canada, and they set the standard for the parties'cooperation.45 The Principles are specifically referredto as guiding legal principles in the European SpaceAgency (ESA) document governing data form the ERS-1 and ERS-2 satellites.46 The data policy for anotherEuropean satellite, Envisat, was approved by the ESAProgramme Board for Earth Observations andspecifically contains a "Legal Framework" thatmandates "Envisat data shall be available in an openand non-discriminatory way, and distribution of thedata shall be consistent with the United Nations37 Kopal, supra, note 31.38 Report, supra, note 30, at 48.39 DeSaussure, H., Remote Sensing Satellite Regulation byNational and International Law, 15 Rutgers Computer andTechnology Law Journal 352, at 375, (1989).40 Commercialization Act, 15 U.S.C. § 4201 (1984), Nowrepealed and replaced with Policy Act, 15 U.S.C. § 5621(1992).41 "Specifically, the Committee is reluctant to take any actionwhich: 1) could interfere with U.S. Treaty obligations; 2) mightrevive debate in the United Nations about the legitimacy ofremote-sensing without prior consent by the sensed nation; and3) sets a precedent which might lead other nations to imposeincreased restrictions on access to their data from theirgovernment-operated remote-sensing systems." H.R. Rep. 102-539, 102d Cong., 2d Sess., at 53, (1992).42 Kopal, supra, note 31.43 Kawamoto, Chiyoshi, NASDA's Activities in the Field o fRemote Sensing, International Bar Association, 10th BiennialConference of the Section on Business Law, Hong Kong, at 5(1991).44 Id.45 "Data distribution shall be consistent with the UnitedNations Resolution 41/65 of December 3, 1986 on thePrinciples Relating to Remote Sensing of the Garth fromSpace." RADAR SAT Data Policy, Document Number RCA-PR0004, Sec. 10.1 b„ (Canadian Space Agency), July 13, 1994,at 11.46 Principles o f the Provision o f ERS Data to Users, ESA/PB-EO (90) 57, rev. 6, Paris, 9 May 1994, (European SpaceAgency, Earth Observation Programme Board), Sec. 2 GeneralPrinciples, 2.1 Legal Principles, para. 2, at 2.

EXPANDING GLOBAL REMOTE SENSING SERVICES 103Resolution[...]on Principles relating to Remote Sensingof the Earth from Space."47After in-depth, extended deliberations in COPUOSit may be found that some of the provisions containedin the Principles have failed to achieve as high a degreeof acceptance as others. Nonetheless, it is clear that theinternational community continues to expect thePrinciples to provide regulation48 and that thePrinciples, as a whole, have already served to guideimportant remote sensing nations in many of theirpractices.Length of existenceThe Principles are legally binding on nations becausethey have been negotiated, adopted, referenced andpracticed for 25 years.49 TIROS, the first civilianremote sensing satellite was launched in 196050 and thefirst remote sensing legal proposal dates back to 1970.51Remote sensing practice and law have continued sincethen. It is widely recognized that long periods of timeare unnecessary to establish custom; that politics52 and47 ESA Envisat Data Policy, ESA/PB-EO (97) rev. 3, Paris,(European Space Agency), 19 Feb. 98 at 8-9 (1998).48 International Space University, Toward an IntegratedInternational Data Policy Framework fo r Earth ObservationsWorkshop Report, ISU/REP/97/1, at 8, (1996).49 American Society for Photogrammetry and Remote Sensingand the American Bar Association, Earth Observation Systems:Legal Considerations for the '90s, at 127 (1990).50 OTA, supra, note 22 at 4.51 Argentina: Draft International Agreement on ActivitiesCarried Out Through Remote Sensing Satellites Surveys o fEarth Resources, U.N. Doc. A/AC. 105/C.2/L.73 (1070) inReport o f the Legal Sub-Committee on the Work o f Its NinthSession (8 June - 3 July 1970) to the Committee on the PeacefulUses o f Outer Space, U.N. Doc. A/AC. 105/85 Annex II, at 2-14(1970).52 McDougall, Walter A., The Heavens and the Earth - APolitical History of the Space Age, at 118 - 124, 187, (1985).law53 can forge instantaneous international custom. Inlight of this, the on-going, multidecadal record ofcontinuous use of the Principles is a particularlycompelling factor in their acceptance as law.Starting in 1974,54 nations engaged in theformulation of the Principles for a period of 12 years,which ended with their adoption in 1986. Some of thespecific provisions contained in the Principles, like theright to overfly a state, date back even further to 1957,which is "the very beginning of space activity."55 Otherswere intentionally designed and developed by thepractice of leading remote sensing nations. In the caseof nondiscriminatory access, the United States andother remote sensing nations engaged in customarypractice, including entering agreements and establishingprocedures for data dissemination another practicecontained in the Principles to support the position thatdata acquisition from space is a legally permitted "use"under the Treaty on Principles Governing the Activitieso f States in the Exploration and Use o f Outer Space,including the Moon and Other Celestial Bodies (OuterSpace Treaty).56Customary law is established by refraining fromaction, as well as by taking action. Prior to the adoptionof the Principles, remote sensing nations declined tomake data available to a sensed State on a preferredbasis or to seek permission from a sensed State todisseminate data to a third party. It is important to notethat these practices were not prohibited by the53 Report, Environmental Aspects o f Activities in Outer Space -State o f the Law and Measures o f Protection - InternationalColloquium, 16 J. Of Space Law 93, (1988).54 G.A. Res. 3234, (XXIX) (1974).55 ABA, supra, note 27, at 127.56 Office of the White House Press Secretary, WeeklyCompilation o f Presidential Documents, Presidential Directive,vol. 14, at 1135, Presidential Directive, June 2 6 , 1978[hereinafter, Office of the White House Press Secretary]; Treatyon Principles Governing the Activities of States in theExploration and Use of Outer Space, Including the Moon andOther Celestial Bodies, Jan. 27,1967,18 U.S.T. 2410, T.L.A.S.6347,610 U.N.T.S. 205 (effective Oct. 10,1967), [hereinafter.Outer Space Treaty]

104 EXPANDING GLOBAL REMOTE SENSING SERVICESPrinciples, thereby strengthening their customary law Increasing restrictions on access tofoundation.57remotely sensed data are relevant toThe Principles specifically incorporate by reference the expansion of global remoteauthorities which date even further back into the 20th sensing services. These restrictionsCentury, including the U.N. Charter, the Outer Space are weakening the principle ofTreaty and relevant instruments of the Internationalopenness upon which much remoteTelecommunication Union. This means that some rulescontained in them and that are relevant to remote sensing law is based and issensing, like spectra preservation, can be invoked and inhibiting global services. Theapplied through the Principles.58 Finally, some of the degree to which decreasedspecific provisions incorporated in the Principles, likeopenness will inhibit the expansionavoiding harm59 and protecting humanity,60 have theirroots in the ancient practices of equity, establishing the of global remote sensing servicestemporal lineage of some aspects of the Principles as will, in the long-term, depend on twobeginning well-before the advent of remote sensing things: which services are beingtechnology.considered and a complex dynamicThe inclusion of customary and treaty law in the of politics, economics, andPrinciples serve as authority for their maturation into technology interacting with the law.law.61 These same facts have been used to supportarguments that the Principles add nothing tointernational remote sensing law as a whole.62 However, Relevance of the principle of openness toin the context of time, 1999 brings the international the expansion of global remote sensingcommunity to a full quarter-century of practice and services.acceptance of the Principles' without any "formaldefection from their terms"63 and with each year thatSocieties, like people, when faced with their ownthis remains the case, the authority of the Principlesmortality are thrown back to the basics. They ask,grows stronger.64"What do we value? For what do we stand?"Philosophy and pragmatism become one. For half of the20th Century, for most of the world, World War IIcatalyzed this experience and it continued throughout57 Christol Past and Present, supra note 25, at 91-92.the ensuing Cold War. Beneath the strategicpreparations, beneath the demonstrations of58 ABA, supra note 27, at 129 - 130.technological prowess, beneath the political positions,59 Principles, supra, note 5, Principle IV, Principle X.beneath it all, was a conflict of ideas. It was a deeplyphilosophical conflict based on the question, which is60 Principles, supra, note 5, Principle XI.the better form of society: open or closed? The UnitedStates, the western European nations, and others61 He Qizhi, Legal Aspects o f Monitoring and Protecting Earth believed in, and fought for, the ideal of an open society.Environment by Space Technology, 20 J. of Space Law 111 atOther nations, led by the former Soviet Union, believed114, (1992).in, and fought for, closed, more controlled societies.62 DeSaussure, supra note 39.63 ABA, supra note 27 at 127.; Christol Past and Present, supranote 25, at 94.64 Chnstol Past and Present, supra note 25, at 94.The fora in which space law developed becameprominent arenas in this contest of ideas. Negotiationsfor treaties, declarations, resolutions and other legalinstruments were rife with the ideological strugglessurrounding the core issue of open versus closed

EXPANDING GLOBAL REMOTE SENSING SERVICES 105societies. The advent of each new space technologycreated a new field of debate for the question: radiofrequency allocation, direct broadcasting satellites,telecommunications, meteorology, identification andregistration of spacecraft- each became individualcampaigns in the long-term battle for open societies.And when the engagements were done, the legalfoundation that was laid embodied many provisions toensure that openness would prevail in space,65 thenewest locale for human endeavor.And with no use of space was the battle of openversus closed societies more energetically engaged thanwith remote sensing -for the unrestricted flow of dataand information was involved- a core requirement of anopen society. Nondiscriminatory access waschampioned by the United States and other westernnations as a hallmark of the openness in which thesesocieties believed.66 This policy became internationallaw, and this international law also became the law ofsome individual nations.When the Cold War ended, the philosophical battleof open versus closed societies receded into thebackground of global political life. The demise of theSoviet Union signaled that the battle was won, opensocieties would prevail, and, with the all-encompassingneed to prevent both philosophical and physicalannihilation eliminated, it became possible forindividuals, nations, and the international community toturn their attention to other, more life-affirming, affairs.Creative and innovative forces newly-released fromCold War competition were channelled into commerce,trade, and technology conversion. And space law, like65 Outer Space Treaty supra note 56. It provides for "freeaccess," and "freedom of scientific investigation." Art I; Partieswith information about "any phenomena" harmful to astronauts"must provide it. Art. V; Space objects must be registered andidentifying data must be furnished upon request. Art. VIII;Consultations are required and may be requested regardingharmful interference. Art. IX; Parties must consider requests toobserve the flight of space objects. Art. X; Parties must provideinformation about the "nature, conduct, locations and results" ofspace activities. Art. XI; Stations, installations, equipment andspace vehicles on the Moon and other celestial bodies must be"open...on the basis of reciprocity." Art. XII.66 Office of the White House Press Secretary, supra note 56.so many other arenas of Cold War activity, quicklybegan to raise new questions generated by the newaffairs.And so in the frenetic post-Cold War reorganizationof institutions and societies it is well to ask, how doesthe fundamental principle of openness fare in this newera? What is its standing in space law? Although lessvisible, less at the forefront of philosophical inquiriesthan previously, it is still a critical question. If it goesunasked, the world risks losing what has already beenwon. The world's remote sensing nations -who are alsothe world's leading democracies- must be as diligent inthe preservation of openness in the post Cold War eraas they were during the Cold War. Ultimately, thismeans being unwilling to allow for new reasons whatthey were unwilling to allow for political reasons:encouraging closed societies by limiting data access. Itis a position of this paper that increasing restrictions onremotely sensed data for commercial and militaryreasons are weakening the principle of openness uponwhich much remote sensing law is based and isinhibiting some global services. The degree to whichdecreased openness will inhibit the expansion of globalremote sensing services will, in the long-term, dependon two things: which services are being considered anda complex dynamic of politics, economics, andtechnology interacting with the law.Increased commercial restriction onremotely sensed dataWMO Resolution 40 and encryption ofEuropean weather satellitesThe free and unrestricted exchange of meteorologicaldata has been the practice among nations for more thana century.67 However, in recent years there have been67 The first International Meteorological Conference was heldin Belgium in 1853. Twenty years later, in 1873, theInternational Meteorological organization (IMO) wasestablished. In 1947, reflecting the post-war attention to globalmatters, the IMO became a United Nations specialized agencyand began acting as the World Meteorological Organization(WMO) in 1951.

106 EXPANDING GLOBAL REMOTE SENSING SERVICESimportant changes in the international laws andagreements that govern meteorological data and theinterpretation of "free and unrestricted exchange."The twin forces of rising national debts andincreasing economic value of all kinds of data producedpressure from national governing authorities in manycountries to make national meteorological services(NMSs) self-sustaining. This resulted in a number ofnational services selling government data. In some casesthese sales provide at least five to ten per cent of theiroperating budgets.68 The question of whether a nationalservice ought to do this involves different fundamentalconcepts regarding the proper relationship between thepublic and private sectors. The United States, forexample, favors a separation between the two, leavingentrepreneurial market activities such as value-addedservices and information distribution activities to theprivate sector. Other nations hold a different viewwhich allows national agencies to engage in profitmakingventures in an effort to recover costs.In European practice, weather data users arecharged for data and this is considered by the weatherservices to be a fair cost-sharing mechanism. In theUnited States, data users are provided data at the costof reproduction. In this view, data are considered apublic good and, because data must be produced for thegovernment’s own use anyway, providing them to otherusers incurs no substantial costs. The United StatesNational Weather Service has come to rely oncommercial value-added retailers and others todistribute weather information, making them an integralpart of the overall weather services system. In theEuropean view, private sector retailers compete withthe NMSs. If private sector providers are able to obtaindata they inhibit the services ability to recover costs foroperating their national data-collecting infrastructure.It is the cost of the continued operation of these systemsthat, in the European view, justifies its position.The European Organisation for the Exploitation ofMeteorological Satellites (EUMETSAT) treaty containsa version of the European view. EUMETSATs"primary" objective is to "establish, maintain andexploit European systems of operational meteorologicalsatellites, taking into account as far as possible WMOrecommendations. EUMETSAT has "worldwideexclusive ownership of all data" generated by it'ssatellites or instruments. It makes some data sets"available" to the national weather services of WMOmembers and "distribution policy" is decided inaccordance with rules for determining whichEUMETSAT programs are mandatory or optional forits members.69Conflict between the different approaches surfacedat the global level when, at the WMO EleventhCongress in 1991, a number of European governmentsrequested that commercialization issues be studied todevelop future policies. A draft resolution wasconsidered by the Twelfth Congress which initiallydivided weather data into two tiers. The proposaladdressed both satellite and non-satellite data. Tier onecontained data that would continue to be open andfreely accessible. Tier two contained data subject torestrictions based on their likely commercialapplications. Tier one data types included in situ marinedata and climate data needed on a regional and globalscale and warnings and advisories to protect life andproperty. The second tier data contained restricted datato be identified at a later time. The restrictions wouldhave prohibited third parties from re-exporting datagathered by another nation. Exceptions were proposedto allow all data to be accessed at the cost ofreproduction for non-commercial educational andscientific purposes.The United States responded that the principle offree and unrestricted access must be formallyaffirmed.70 This position ultimately rested on United69 EUMETSAT Convention, Art. 2.1, Art 5.2 (b), Art 5.3 (b),and Art. 8.68 World Meteorological Organization, ExchangingMeteorological Data Guidelines on Relationships inCommercial Meteorological Activities: WMO Policy andPractice. WMO, Geneva, at 8, (1996).70 Bulletin of the American Meteorological Society, WMOAdopts a Resolution Governing the International Exchange o fMeteorological and Related Data and Products,, Vol. 76, No.8, at 1478 - 79, (1995) [hereinafter, Bulletin].

EXPANDING GLOBAL REMOTE SENSING SERVICES 107States domestic law and policy.71 The rest of the UnitedStates position held that a sanctioned two-tier practicecould not be adopted, although the right of a nation toplace restrictions on its own data as a matter ofsovereign prerogative could be recognized. The positionalso held that enforcement of data restrictions would bethe responsibility of the nation imposing therestrictions; and, guidelines should be adopted for therelations among national weather services and betweenthe private sector and national weather services. Thefunction of the guidelines would be to facilitateagreeable arrangements involving commercialactivities.72A draft resolution, including four annexes, wasadopted. It included as a fundamentalprinciple...broadening and enhancing the free andunrestricted international exchange of meteorologicaland related data and data products. Free andunrestricted was defined as non-discriminatory andwithout charge. Without charge was defined in thecontext of the resolution as no more than the cost ofreproduction and delivery, without charge for the dataand products themselves. Three data exchange practiceswere also drafted. First, the minimum data and productsthat members shall provide include severe weatherwarnings and advisories and specific types of data fromspecific systems as well as synoptic observational data.Second, data that should be provided are thosenecessary to sustain global, regional and nationalWMO programs and data to assist other Members inproviding weather services in their own countries. Itwas understood, however, that members may placeconditions on the re-export of this data for commercialpurposes for reasons such as national laws or cost ofreproduction. Finally, all data and products should beprovided to the research and education communities fornon-commercial purposes. Research and educationcommunities include researchers, teachers, and studentsin academic and research institutions and in othergovernment and non-government research institutions.73Unlike the original proposal which required Membersto perform their utmost to ensure that re-exportrestrictions were respected by their [national weatherservices] and by all organizations given access to[restricted data] within their territories or abroadfollowing a legitimate re-export74 the draft resolutionurged Members to [m]ake their best efforts to ensurethat re-export conditions are made known to initial andsubsequent recipients.75A final set of policies and practices were adopted.Although the resolution and the final version aresubstantially the same, there is an important changebetween them. The adopted version omits the term "tierone" and replaces it with "essential data" to describedata sets that must be provided. Similarly, the term "tiertwo" is replaced with the term "additional data" thatshould be provided. These changes reflect acompromise between the United States position thatrejected the adoption of a formal tier system and theEuropean position that some kinds of data must beallowed to be restricted.Resolution 40,76 as the final version has come to beknown, explicitly adopts the policy of free andunrestricted international data exchange, rejects thetwo-tier system, recognizes the need to support WMO71 The Policy Act, supra note 9, at 15 U.S.C. §§ 5671 and5672, prohibits the commercialization of the national weathersatellites. Office of Information and Regulatory Affairs, Officeof Management and Budget Circular A-130, Federal Register,Vol. 59, No. 141, 7/25/94. A complex piece of policy guidance,A-130 is generally accepted that it instructs executive agenciesto avoid inappropriate constraint of access by the public togovernment information. This includes setting cost recoverypolicies at a threshold low enough to facilitate access. Much ofthe policy's substance was codified in the 1995 Paper ReductionAct raising the long-term status of the policy to a law, 35U.S.C. §§ 3501 - 3520.72 Bulletin, supra note 70, at 1478 - 79.73 Draft Res. 11.4/1 (Cg-XII) - WMO Policy and Practice forthe Exchange of Meteorological and Related Data and ProductsIncluding Guidelines on Relationships in CommercialMeteorological Activities [hereinafter, Draft Resolution].74 Report to Plenary on Item 17, EC-XLVI/PINK 65(14. VI. 1994), (WMO Executive Council, 46th Session), FutureArrangements fo r the Exchange o f Meteorological Data andProducts, (1994).75 Draft Resolution, supra note 73.76 Resolution 40, supra note 19.

108 EXPANDING GLOBAL REMOTE SENSING SERVICESactivities, identifies specific minimum data sets thatmust be provided, limits restrictions to re-export ratherthan uses, articulates guidelines for interaction betweenthe meteorological services and commercial practices;and contains a broad definition of research andeducation communities.77 Nonetheless, as formulated,the overall effect of Resolution 40 has hampered thefree flow of meteorological data for weather servicesworldwide for the largest operational application ofremote sensing.78 It is also apparently imperfect in itsapplication due to the global nature of weather.Formally stating a tenet that had previously been anunquestioned, accepted and widely-held practice whiledecreasing the scope of the practice's application,indicates that the stated principle has, in fact, beenweakened. To be sure, it is to be counted as a successfor the principle of openness that the formal statementwas made and adopted. But if it is to evolve intosomething more than "shoring up" a weakenedprinciple, then practical access to all data categorieswill have to be demonstrated. And although the two-tiersystem was rejected officially, the effect of identifyinga minimum set of basic data and products that must beprovided is the identification of another set that need notbe provided. This is inclusio unius est exclusio alterius- the inclusion of one is the exclusion of another. Theresult is a de facto tier system.The adopted practice which allows placingrestrictive conditions on the re-export of some data andenforcement guidelines that condone data denial are,themselves, logically inconsistent with the concept ofthe free and unrestricted data exchange.79 Additionally,and most importantly for remote sensing, data andproducts from operational meteorological satellites have77 Bulletin, supra note 70, at 1478-99.78 Letter from Commercial Weather Services Association to theCommission of the European Communities, Directorate GeneralIV - Competition. (September 28, 1995) Signed by 45companies from the United States, Canada, England, andArgentina. This dates to the time Resolution 40 was passed.Conducting a formal study now to document the development ofthis early trend would be timely and useful.79 Id.been placed within the essential category. However,despite this designation, they will only be provided asagreed by satellite operators and "data and productsnecessary for operations regarding severe weatherwarnings and tropical cyclone warnings" "should" beincluded, but are not required.80 While this provisionattempts to balance the national desire to retainsovereign control over data exchange policies that affectexpensive national assets with the inherent importanceof meteorological satellite data, it holds the long-termprospect of erratic data access.Resolution 40 also demonstrates that before thelaws of nature, human-made law is imperfect at best. Acompelling case of the logic of geography over the logicof politics is the inclusion in the essential data categoryof "as many data as possible that will assist in definingthe state of the atmosphere at least on a scale of theorder of 200 km in the horizontal and six to 12 hours intime.81 Meteorological data at these spatial andtemporal scales are an absolute necessity for computermodel initialization and verification. Were a nation toselectively withhold data at these scales, it would createa data void, rendering other nations computer modelsuseless. Satellite derived atmospheric parameters maybe able to compensate for these critical data in thefuture, but until then all nations are naturally dependanton one another to provide in situ synoptic scaleobservations. Another manifestation of the logic ofgeography may be the United States decision tocontinue unrestricted access to its own data. Since thepolicy's scope is continental - an important unit inmeteorological metrics - as well as national, it may bethat geography more than political power willultimately determine the long-term effect of thesechanges on the global weather community.Finally, during the same time period that Resolution40 was being forged, the question of restricted datamoved into the realm of operations in 1994 whenEUMETSAT began to encrypt the data from its80 WMO Resolution 40, Annex 1 (Cg-Xii), Data And ProductsTo Be Exchanged Without Charge And With No Conditions OnUse, number 8.81 Id.

EXPANDING GLOBAL REMOTE SENSING SERVICES 109satellites, which previously had been unencrypted.EUMETSAT plans to continue this practice into theforeseeable future.82 Encryption, by design, is intendedto inhibit access to all except those with the proper"key." Whatever the motive, even well-justified, effortsto characterize this as anything other than a move awayfrom the principle of openness is contrary to fact andlogic. As to its effect on the expansion of global remotesensing services, at most this practice will enhance theability of a few services while decreasing the ability ofmany others.The revised WMO practice is far from the lastword, positions and issues will continue to be defined.It will also have to be reconciled with other dataexchange policies like the CEOS principles in supportof operational environmental use for the publicbenefit.83 Often members of one group are alsomembers of another, making the reconciliation an ongoingprocess. Whatever the outcome, there are twothings that are certain. First, weather data restriction isan on-going issue. Second, no single satellite operatingnation no matter how politically or economicallypowerful can control the international rules concerningweather data acquisition and distribution. From thispoint on, determining the law will be an evolvingmultilateral process.Industry and "availability"licenses for private systems pursuant to the new law.85As part of the licensing process, the Department ofCommerce issued a Notice of Proposed Rulemakingwhich solicited public comment regarding theregulations it was formulating.86 The remote sensingcommunity subsequently engaged in a debate regardingthe proposed rules.Chief among the questions raised was how thenondiscriminatory access policy would be applied toprivate system operators. The Policy Act contains asensed-state provision which requires that licensees"make available to the government of any country,including the United States, unenhanced data collectedby the system concerning the territory under thejurisdiction of such government as soon as such dataare available and on reasonable terms and conditions."87One position advanced in the debate was, if data isunavailable to the licensee due to system design orbusiness practice then the data is unavailable forpurposes of the sensed-state provision.88The question of what constitutes "availability"under nondiscriminatory access had been raisednumerous times under both international and UnitedStates domestic law. Each time, the answer was thatmaking data available is an integral element ofnondiscriminatory access, without which, the principlewould be violated and rendered meaningless.89When the United States Congress passed the 1992 LandRemote Sensing Policy Act (Policy Act)84 it authorizedthe United States Secretary of Commerce to issue85 Policy Act, supra note 9, at ' ' 5621 - 5625.82 Agreement Between the United States National Oceanic andAtmospheric Administration and the European Organisation forthe Exploitation of Meteorological Satellites on an Initial JointPolar-Orbiting Operational Satellite System, signed by theNOAA Administrator and EUMETSAT Director, 19 November1998, Washington, D.C. [hereinafter, IJPS Agreement],83 Committee on Earth Observation Satellites, Coordination forthe Next Decade 1995 CEOS Yearbook, at 7, (1995).84 Policy Act, supra note 9, at 15 U.S.C. §§ 5601 - 5642(1992).86 62 Federal Register 59317 (November 3, 1997).87 Policy Act, supra note 9, at ' 5622 (b) (2).88 Divis, Dee Ann, Wrangling Over Remote Sensing;Government Considers Regulation O f Commercial RemoteSensing Satellite Systems, GeoInfo Systems, at 16, (January1998).89 Gabrynowicz, J.I., Defining Data Availability fo rCommercial Remote Sensing Systems Under United StatesFederal Law, 23 Annals of Air and Space Law 93, at 94,(1998), [hereinafter, Gabrynowicz].

110 EXPANDING GLOBAL REMOTE SENSING SERVICESWhen Israel persuaded the United StatesGovernment90 to restrict remote sensing companiesfrom acquiring and disseminating remotely sensed dataof Israel, industry argued correctly, thatnondiscriminatory access was being selectively applied.It argued further again, correctly that the United States'concession to Israel was a precedent that eroded thefuture application of the principle for industry.91 Toargue that technical system characteristics and/orbusiness practices makes legally required data"unavailable" for purposes of nondiscriminatory accesswas to turn the tables. The industry put itself in thesame position as the Government in the Israeli case:applying selective application of nondiscriminatoryaccess. Industry advocated the very result it hadattempted to prevent. Should industry selectively applynondiscriminatory access, any future appeal to theprinciple on its own behalf will ring false and bejustifiably ignored. This is of particular importancebecause the statute that prohibits imaging of Israel alsoholds the potential of additional imaging restrictions of"any other country or geographic area designated by the90 Rep. No. 104-278,104th Cong., 2d Session, S. 1745,National Defense Authorization Act for Fiscal Year 1997.Section 1044: PROHIBITION ON COLLECTION ANDRELEASE OF DETAILED SATELLITE IMAGERYRELATING TO ISRAEL AND OTHER COUNTRIES ANDAREAS.(a) COLLECTION AND DISSEMINATION- No departmentor agency of the Federal Government may license the collectionor dissemination by any non-Federal entity of satellite imagerywith respect to Israel, or to any other country or geographic areadesignated by the President for this purpose, unless suchimagery is no more detailed or precise than satellite imagery ofthe country or geographic area concerned that is routinelyavailable from commercial sources.(b) DECLASSIFICATION AND RELEASE- No departmentor agency of the Federal Government may declassify orotherwise release satellite imagery with respect to Israel, or toany other country or geographic area designated by thePresident for this purpose, unless such imagery is no moredetailed or precise than satellite imagery of the country orgeographic area concerned that is routinely available fromcommercial sources.91 NOAA Public Meeting, Licensing of Private Remote SensingSpace Systems, Washington, D.C. (June 14,1996).President."92 Establishing nondiscriminatory accessavailability as a standard industrial practice will, on theother hand, restore the strength of nondiscriminatoryaccess as a precedent and can help end the one-by-oneexclusion of nations with the single anomalous situationthat now exists with Israel.A licensee is not obligated to make data availableto the sensed state at uniform prices.93 Nor is makingdata available to be equated with giving data away forfree. The licensee is permitted to seek "reasonable termsand conditions"94 which implies market rates. Regardingthe expansion of global remote sensing services,applying the sensed state provision to industry,increases them. The provision prohibits a companyfrom entering into an exclusive contract that requireswithholding data from a sensed state. It therefore can92 S. 1745, 104th Cong., 2d Session, Authorizing AppropriationsFor Fiscal Year 1997 For Military Activities Of TheDepartment Of Defense, For Military Construction, And ForDefense Activities Of The Department Of Energy, To PrescribePersonnel Strengths For Such Fiscal Year For The AimedForces, And For Other Purposes,Section 1044 PROHIBITION ON COLLECTION ANDRELEASE OF DETAILED SATELLITE IMAGERYRELATING TO ISRAEL AND OTHER COUNTRIES ANDAREAS.(a) COLLECTION AND DISSEMINATION- No departmentor agency of the Federal Government may license the collectionor dissemination by any non-Federal entity of satellite imagerywith respect to Israel, or to any other country or geographic areadesignated by the President for this purpose, unless suchimagery is no more detailed or precise than satellite imagery ofthe country or geographic area concerned that is routinelyavailable from commercial sources.(b) DECLASSIFICATION AND RELEASE- No departmentor agency of the Federal Government may declassify orotherwise release satellite imagery with respect to Israel, or toany other country or geographic area designated by thePresident for this purpose, unless such imagery is no moredetailed or precise than satellite imagery of the country orgeographic area concerned that is routinely available fromcommercial sources.93 The Landsat Program Management Plan and H.R. 3614. TheNational Land Remote Sensing Policy Act of 1991. HearingBefore the Subcommittee on Environment of the Committee onScience, Space, and Technology, U.S. House ofRepresentatives, 102d Cong., 2d Sess., 208. (1992) at 54.94 Policy Act, supra note 9, at § 5622 (b) (2).

EXPANDING GLOBAL REMOTE SENSING SERVICES 111sell the data at least twice, once to the customer andagain to the sensed state.Although the this particular question of applyingthe sensed state provision to industry arose underUnited States law other nations are also addressing thequestion. Early indications are that they are willing, asa matter of domestic law, to ignore the internationallaw.95 While domestic law is different from nation tonation, the international legal basis of the principleapplies to other remote sensing nations that participatedin the consensus process that adopted the Principles.New international and domestic remote sensing lawsmust evolve to meet the rights, interests and obligationsof private entities. And some principles of remotesensing law, like the principle of openness, are so basicthat they apply to both public and private activities. Theobligation to make data available to sensed statesthrough effective, practical measures is chief amongthese vital principles.level,97 the United States is merging its civil Polar-Orbiting Operational Environmental Satellite (POES)program operated by the National Oceanographic andAtmospheric Administration (NOAA) within theCommerce Department and its military DefenseMeteorological Satellite Program (DMSP) operated bythe Defense Department (DoD) into a merged UnitedStates national system, the National Polar OrbitingEnvironmental Satellite System (NPOESS). This isreferred to as "convergence."98 At the same time, theUnited States POES system is being merged with theEuropean METOP 1 and 2 satellites into the InitialJoint Polar System (IJPS) with the further merging ofthe NPOESS with the METOP 3, creating the JointPolar System, (JPS).99 The guiding principles of UnitedStates convergence are the recognized importance ofoperational environmental data; assured data access;the ability to “selectively deny” critical environmentaldata to an adversary during crisis or war; and ensureddata use by the United States and its allies.Implementation is occurring within the ExecutiveIncreased military restrictions onremotely sensed dataCombining civil and military capabilitiesthrough system mergers: Convergence, theInitial Joint Polar System and the JointPolar SystemA post-Cdd War, budget-driven policy regardingremote sensing of the weather is combining long-term96civil and military capabilities through system mergersat the national and international levels. At the national9 5Israeli Defense Ministry Director-General Ilan Biran isreported to have required, as part of a study for considering acommercial photoreconnaissance satellite, a "black-list ofcountries to whom the commercial satellite's photographs wouldnot be sold." Ha'aretz, supra note 17, at B3.96 As points of reference, for purposes of this paper, the InitialJoint Polar System time frame is 2009 - 2013 and the JointPolar System time frame is 2020 - 2025.97 Although this section addresses activities in the UnitedStates and between the collective nations of Europe and theUnited States, merging civil and military functions into a singlesystem is also being considered by other individual nations likeItaly and may also be the trend for other nations. Space News,Italy Backs Navigation, Small Launch Efforts, April 5, 1999. at3, col. 1.98 White House Fact Sheet, Convergence of U.S. Polar-OrbitingOperational Environmental Satellite Systems, May 10,1994, at2. The NPOESS is managed by the Integrated Program Office(IPO). Its personnel are from the Department of Defense,NOAA, and NASA. The System Program Director is fromNOAA and the Deputy Director is from DoD. As a tri-agencyprogram there are three senior positions: associate director foracquisition; associate director for technology transition; and,associate director for operations. The Air Force has the lead foracquisitions, NASA is the lead for technology, and NOAA isthe lead for operations. A tri-agency Executive Committeeconsists of the Undersecretary of Commerce for Oceans andAtmosphere, the Undersecretary of DoD for Acquisition andTechnology, and the Deputy Administrator at NASA. It is theCommittee’s responsibility to “coordinate program plans,budgets, and policies and [to] ensure agency fundingcommitments are equitable and sustained.”99 UPS Agreement, supra note 82.

112 EXPANDING GLOBAL REMOTE SENSING SERVICESBranch.100 The guiding principles of the merged UnitedStates and European systems are being developedthrough negotiations and agreements.101Since 1972, the United States has made eightunsuccessful attempts to converge its military and civilweather satellite systems. Although progress inspacecraft design, data processing, and launch vehiclecommonality was made, law, foreign policy, nationalsecurity issues, and sharp political and culturaldivisions in the civil and military sectors preventedcomplete convergence. The current, and ninth, attemptbegan in 1993.102The history of multiple failed convergence attemptshas fostered skeptics of the current plan. They alsopoint to the failure of the United States Air Force andNASA to work together on the Landsai system asfurther evidence of their doubt.103 Proponents of the100 Presidential Decision Directive/NSTC-2, May 5, 1994,[hereinafter, PDD2],101 UPS Agreement, supra note 82.102 Convergence of Civilian and Defense Polar-OrbilingWeather Satellites, Hearing before the Subcommittee on Spaceof the Committee on Science, Space, and Technology U.S.House of Representatives, 103d Congress, 1st sess., Nov. 9,1993, at 1, [hereinafter, Convergence Hearings]. A study wasconducted by U.S. Congressman George Brown and was latercontained in the National Performance Review, popularly calledReinventing Government, that was issued by U.S. Vice-President A1 Gore. In 1994, the United States ExecutiveBranch directed the Commerce and Defense Departments tointegrate the POES and the DMSP into a “single, converged,national polar-orbiting operational environmental satellitesystem.” PDD2, supra note 100.103 The Air Force and NASA were unable to reach agreementon the parameters of a single, but complex, sensor, the High-Resolution Multispectral Stereo Imager (HRMSI). Thisoccurred despite the fact that Congress had already mandatedthat they must jointly operate the program in the Policy Act.The provisions to work together were changed in interagencynegotiations and condoned by the Executive Branch: "Workingwithin their partnership on Landsat, and recognizing thedifficulties imposed by today's budget environment, NASA andDoD mutually agreed to proceed in a manner that wouldtransfer the responsibility of the program to NASA with anassurance by DoD of remaining a major user of Landsat data."Letter from Vice-President A1 Gore to Rep. George Brown,Chair House Committee on Science, Space and Technology,current convergence plan identify key differences fromprior attempts that they believe ensure the success ofthe effort. On the political side, common pressure for aconverged system exists in both the United StatesLegislative104 and Executive Branches,105 increasing thelikelihood of success. On the technological side,simultaneously planned upgrades for the NOAA andDMSP systems have presented an opportunity toincrease the commonality of the spacecraft bus andsubsystems of future satellites. The post-Cold War erahas also eliminated many of the issues which haveprecluded complete convergence, including the need tohave a redundant, separately controlled militarysystem.106 Finally, proponents point out that all theagencies involved have a common ‘vested interest’ in aconverged system which is obtaining data foroperational needs.107NASA, NOAA, and DoD identified, accepted andhave agreed to converged system requirements. Thisprovides strong evidence that the current attempt atUnited States convergence will, in feet, be successful.108This agreement was never reached in the precedingeight attempts. In fa c t, seven of the eight attempts atconvergence failed because of difference overrequirements.109 A signed 1998 UPS agreement betweenFeb. 4, 1994.104 Convergence Hearings, supra note 102.105 Gore, Al, Creating a Government that Works Better andCosts Less. Report of the National Performance Review.(1993).106 Convergence Hearings, supra note 102, at 8, by Dr. D.James Baker, Under Secretary for Oceans and Atmosphere,NOAA, Department of Commerce.107 Space, Vision and Reality: Face to Face, ProceedingsReport, United States Space Foundation, by Robert Winokur,Assistant Administrator for Satellite and Information Services,NOAA, at 46, (1995).108 NPOESS Integrated Operational Requirements Document,July 25, 1996.109 Brigadier General Cook, Deputy Commander forOperations, USAF Space Command, meeting with EUMETSATRepresentatives, August 7, 1996.

EXPANDING GLOBAL REMOTE SENSING SERVICES 113NOAA and EUMETSAT also indicates potentialsuccess of merged systems at the international level.110The potential success of convergence in the UnitedStates and merged systems between the United Statesand Europe, raises a number of legal issues. Amongthem are the legal definitions of "crisis or war","adversary" and "critical data" and the legal separationof the military and civil space programs under UnitedStates and European law, and, perhaps, individualnational laws of some European nations.be invoked for "data denial of critical UPS data formilitary purposes"115 from ten United States instrumentsflying on both spacecraft.116 Two other United Statesinstruments are explicitly excluded from the data denialprovisions.117 "Data denial" is undefined but criteria fordetermining when denial is to be implemented are setout, including the requirement for United States Cabinetlevel authority.118The data denial provisions raise the need to definethe IJPS in legal terms.119 Under WMO Resolution 40Data denial and the legal definitions of "crisis orwar"," adversary", and "critical data"Definitions are the starting points of legal rights andobligations. The NOAA - EUMETSAT IJPS agreement(IJPS Agreement) recognizes this by setting outdefinitions critical to the system's implementation.111Definitions included in the agreement are "crisis orwar,"112 "critical data,"113 and "adversary."114 They will110 IJPS Agreement, supra note 82.111 IJPS Agreement, supra note 82, at Article 8, Annex, sec. 1.112 IJPS Agreement, supra note 82, at Annex, 1."Crisis or war is an international situation involving U.S. and/orAllied operations which could range across the spectrum ofmilitary operations. This spectrum would include:- a major regional conflict;a peacemaking or peacekeeping operation involvingU.S. and Allied personnel and resources:- a humanitarian operation involving U.S. and Alliedpersonnel and resources: ora show of force operation (such as deploying naval orground forces to reflect international disapproval)involving U.S. and Allied personnel and resources."113 IJPS Agreement, supra note 82, at Annex, 1 ."Data denialmay be applied to data which an adversary might use to supportor enhance military planning and operations. For example,satellite visual, infrared or microwave imagery and infrared oratmospheric sounding information have offensive and defensivemilitary applications and are considered critical environmentaldata."114 IJPS Agreement, supra note 82, at Annex, 1."A state orgroup of states or a politically unrecognized force within a stateor group of states which pose a distinct threat to the U.S. or itsAllies, especially regarding military operations."115 IJPS Agreement, supra note 82, at A rt 8.4.116 Advanced Very High Resolution Radiometer (AVHRR),High-resolution Infrared Sounder (HIRS), Advanced MicrowaveSounding Unit (AMSU-A), Space Environment Monitor (SEM),Solar Backscatter Ultra Violet Monitor (SBUV), MicrowaveHumidity Sounder (MHS), Infrared Atmospheric SoundingInterferometer (IASI), Advanced Scatterometer (ASCAT),Ozone Monitoring Instrument (OMI), Global PositioningSystem - Sounder (GPS - S).117 Satellite-Aided Search and Rescue (SARSAT), and the DataCollection and Location System (ARGOS).118 IJPS Agreement, supra note 82, at Art. 8, Annex, 2, 3,4.Criteria for determination:Whether a condition of crisis or war exists or isdeveloping and whether the crisis or war poses animmediate and serious threat to U.S.-Allied nationalsecurity objectives such as whether it affects the livesof U.S. or Allied personnel and resources;An adversary's ability to receive and exploitenvironmental data from U.S. sensors for militarypurposes;- An adversary’s ability to receive and exploit similarenvironmental data from other sources for militarypurposes;- What advantage the data from U.S. instruments wouldprovide an adversary, given that similar data may beavailable from other sources;- The impact of denying data to non-adversaries whomay also be affected by data denial;- The U.S. would consider its international obligations,including those with EUMETSAT and its members,in making a decision on data denial.119 IJPS Agreement, supra note 82, at Article 3 contains aGeneral System Description. "The UP System consists of thefollowing major elements: EUMETSAT and NOAA spacecraft,instrumentation, and ground segments. The spacecraft andinstrumentation together are referred to as the satellite." Ageneral description of the spacecraft, instrumentation and

114 EXPANDING GLOBAL REMOTE SENSING SERVICESsome of the data from various IJPS instruments will fallunder the "fundamental principle" of "broadening andenhancing the free and unrestricted exchange ofmeteorological and related data and products."120 Asregards the Principles, "remote sensing" is defined as"the sensing of the Earth's surface"121 which places theUPS outside of their scope. However, the UPSAgreement recognizes "the essential role [of]environmental satellite data... [for]...other sectors of theglobal Earth observation and science usercommunities"122 and states that the parties arecooperating "to continue and improve the operationalmeteorological and environmental forecasting andglobal climate monitoring services."123 In so far as thePrinciples do require remote sensing to "promote theprotection of the Earth's natural environment" the use ofIJPS data under some circumstances perhaps thoserequiring an interdisciplinary scientific approach couldconceivably place them within some limited applicationof the Principles.124 However, if and when the IJPS, orits components, are operated for "military purposes"then arguably, it, or they, become a military systemwhich removes them from these laws and presumablydata denial can occur. The question then becomes, as amatter of law, what must happen for the system tomake the transition from a civilenvironmental/meteorological monitoring system to aone used for "military purposes"? The IJPS Agreementbegins to answer the question as an event defined as a"crisis or war."The definition of "crisis or war" used in the UPSAgreement is broad and covers activities "which couldrange across the spectrum of military operations"including regional conflicts, peacemaking orground segment are included.120 Resolution 40, supra note 19.peacekeeping, humanitarian operations and shows offorce "to reflect international disapproval."125 Wars arethreats to a nation's supreme interests and ultimately,every State that participates in merged systems, eitherdirectly or through intergovernmental organizations, hasa national legal definition of "war." And although thedata denial provisions only apply to some United Statesinstruments, these definitions may or may not becompatible and could lead to political, as well as legal,differences when data denial is invoked for "militarypurposes".At the United States domestic level, whatconstitutes a "war or crisis" is increasingly the subjectof the most intense legal controversies. And becausethese controversies are subjects of acute domesticinterests, they are often driven more by domestic forcesthan international ones which further complicates thequestion of legally using a shared international asset. Inthe United States, for example, although theConstitution clearly provides that "Congress shall havePower To...declare War"126 the 20th Century hasengendered war-like activities without the legalrequirement of a formal declaration. This has generatedlegislation that attempts to define the proper Executive-Legislative authority in these activities.127 However, noUnited States President has accepted theconstitutionality of this legislation since it was passed.If data denial is invoked for any number of activitiesthat "range across the spectrum of military operations"it can become part of a larger, Constitutional issueconsidered to have more domestic importance than theuse of the UPS itself.Other definitions used in the UPS will also requirecomplex legal analysis involving a number of differentbodies of law. For example, the definition of"adversary" could require the application of the laws ofwar and the evolving law of terrorism. The definition of"critical data" will catalyze the domestic polices and121 Principles, supra, note 5, Principle 1.122 IJPS Agreement, supra note 82, Preamble.123 IJPS Agreement, supra note 82, Article 1.124 Principles, supra note 5, Principle X, regarding "avertingany phenomenon harmful to the Earth's natural environment.”125 UPS Agreement, supra note 82, Annex, 1.126 U.S. Constitution, Art. 1, section 8.127 50 U.S.C. § 1541. The War Powers Resolution.

EXPANDING GLOBAL REMOTE SENSING SERVICES 115Changing legal separation o f the military andmany of the bilateral and multilateral agreements towhich the IJPS members are also parties.130 IJPS Agreement, supra note 82, Article 2.civil sectors under United States domestic lawThe question of legal standards used in the UPS and European lawAgreement arises when considering that data denial canbe invoked when a crisis or war situation "exists, or isdeveloping" that "poses an immediate and seriousthreat" in which an adversary "might use" the data to bedenied. The purpose of legal standards is to create adegree of certainty in the application of the law andlegal instruments. How much certainty these standardsData denial either as a result of encryption or for"military purposes" will occur within the context of thechanging legal relationship between the military andcivil sectors in both the United States and Europe. Thischanging context is an important element in consideringthe long-term status of data access laws and policies.provide will depend on a variety of political and legalfactors. The agreement addresses certainty in temporalterms by providing that "data denial will stop 120 daysafter it starts"128 and "shall be extended" only after theentire United States Cabinet level decision-makingprocess is repeated.129At the dawn of the Space Age, PresidentEisenhower chose to keep the United States military andcivil space programs separate. This decision is codifiedin the 1958 National Aeronautics and Space Act (NASAct).131 To execute this decision military assets wereThe free and unrestricted exchange oftransferred to NASA pursuant to an Executive Order.132Despite this statutory separation, the line betweenmeteorological data has been the practice amongnations, and even with important recent changes, "freeand unrestricted" is still the primary standard.Therefore the introduction of a data denial policy forthe UPS does raise new questions. A policy that allowsdata denial from a merged civil and military system canbe viewed two ways: either as a policy that establishesa compromise to meet national emergencies by a systemthat is otherwise presumed to operate openly; or, as amilitary and civil space has never been absolute.133 Andin the intervening decades since then, budget andpolitical pressures have consistently blurred thestatutory line between civil and military spaceactivities.134 Specifically regarding remote sensing,there is statutory authority requiring NASA and DoD"to enhance programs of remote sensing research anddevelopment."135 Yet, the legal separation continues asa basic feature of United States domestic space law.136policy that establishes a compromise that inhibits dataaccess and makes a completely open system unlikely.These competing interpretations are further complicatedby the fa c t that although data denial is not specificallyapplied to European instruments, their data will beencrypted as standard operating procedure, and, ineffect denied, to all except those with authorized access.This makes the question of whether the UPS willoperate in a manner consistent with the principle of13142 U.S.C. §§ 2451-2484, Public Law 85-568, 72 Stat, 426.National Aeronautics and Space Act of 1958, Sec. 102(b).132 Exec. Order No. 10,783, (1958).133 NAS Act § 203 (a) (12), For example, the NASAAdministrator may "with the approval of the President,[...]enteropenness multidimensional. Significantly, the IJPS into cooperative agreements" which assign military personnel toperform NAS Act functions "to the same extent as that to whichagreement recognizes the parties' intent to "continuethey might be lawfully assigned in the Department of Defense."planning"130 indicating that this issue and its impact onglobal remote sensing services is an evolving one.134 This "blurring" takes many forms from previously militarydedicatedShuttle missions to joint funding. There have alsobeen formal entities established like the Aeronautics and128 IJPS Agreement, supra note 82, Annex 1, para. 5.129 IJPS Agreement, supra note 82, Annex 1, para. 6.Astronautics Coordinating Board for DoD/NASA Cooperationand other groups.135 15 U.S.C. § 1531136 NAS Act, § 102. b.

116 EXPANDING GLOBAL REMOTE SENSING SERVICESThere isn't a specific delineation between "military"and "civil" in a manner directly analogous to U.S. lawin many national laws of European nations. However,the purpose of the European Space Agency is legallylimited to "exclusively peaceful purposes" by themultilateral convention that established it and hasgenerally been interpreted to prohibit militaryactivity.137 EUMETSAT itself has no military mandatealthough the EUMETSAT Convention does not containthe same "peaceful purposes" language as the ESAConvention.In European remote sensing activities, a militarycivilconnection is recognized through "[the] FrenchSPOT programme [which] has led to the developmentof the HELIOS military observation satelliteprogramme in which France has been joined by Italyand Spain."138 European civil-military relationships inremote sensing are complicated by the fact thatEUMETSAT members are national meteorologicalservices (NMSs) and some of them are funded by, orhave liaison relationships with, national defenseministries. An additional level of complexity arises fromthe fact that all European members of the NorthAtlantic Treaty Organization (NATO) areEUMETSAT members, although not all EUMETSATmembers are in NATO. It is reasonable to expect thatthese relationships will come to bear in sensitivesecurity decisions involving IJPS and JPS data.It is also necessary to consider the IJPS and JPSwithin the future ESA-EUMETSAT relationship, theinterplay of the limitations contained in the ESAConvention under various EUMETSAT-ESAagreements,139 the on-going work of ESA's Long-137 Convention For The Establishment Of A European SpaceAgency, Ref. CSE CS(73)19, rev. 7, 30 May 1975, Article II138 Commission of the European Communities, The EuropeanCommunity Crossroads In Space" Report by an Advisory PanelOn The European Community and Space, number CD-NA-10410-EN-C, at 27, (1991), [hereinafter, Crossroads).139 These agreements are listed only as possible examples.They were listed in other sources as possible agreements forreview. They were unavailable to the author at time of writing,so their applicability has not been verified.ESA/LEG/ 96(R) Agreement between ESA andEUMETSAT on the Meteosat operational programme. SignedTerm Space Policy Committee,140 and ESA's post-2000Earth Observation Strategy. The post-2000 EarthObservation Strategy is premised on the growingimportance of Earth observation data for "political" and"geopolitical purposes,"141 the "increasing strategicimportance of Earth Observation from space [and] aneed for a coordinated approach between the Europeanplayers...[including] EUMETSAT."142 The internationalcoordination necessary to implement the strategycoordinating the ESA program with national programs,harmonizing missions and data usage, and"strengthening] cooperation with...EUMETSAT"143provides fertile ground for legal queries regardingappropriate military-civil relations. The importance ofthe ESA Convention in the future of an integratedEuropean space agenda was acknowledged by theAdvisory Panel on the European Community and Spacewhen it recommended that, "the facilities and expertiseof ESA [must] be made available as far as possible inon 12.1.1987 and entered into force with retroactive effect from1.1.1987.ESA/LEG/115(R) Supplementary Agreement between theEuropean Organisation for the Exploitation of MeteorologicalSatellites (EUMETSAT) and the European Space Agencyconcerning the Meteosat Operational programme. Signed on 1February 1989. Entered into force same date (see alsoESA/LEG/96).ESA/LEG/ 166(R) Agreement between EUMETSAT andESA concerning the Meteosat Second Generation System.Signed in Paris on 17 February 1994. Entered into force on thedate of signature.ESA/LEG/ 200 Agreement between EUMETSAT and ESAconcerning the MSG, Second and Third Satellites. Signed on 16October 1996 and entered into force on the date of signature.140 Bonnefoy. R. and Arend, H., ESA's Earth-ObservationStrategy, ESA Bulletin Number 85. February, (1996),[hereinafter. Strategy].http://esapub.esrin.esa.it/bulletin/bullet85/arend85.htm. PressRelease - M inisters Shape The Future O f European SpaceActivities European Space Agency, Number 17-99 - Paris, 12May 1999.141 Strategy, supra note 140.142 Id.143 Id.

EXPANDING GLOBAL REMOTE SENSING SERVICES 117activities.149 The UPS and the JPS invite similarmeeting European security needs" but "while respecting148 Crossroads, supra note 138, at 27.15 3 Outer Space Treaty, supra note 56, Article VI.the spirit of the Convention[.]"144analysis for the ESA Convention and related Europeanlaw. Earth orbit military space operations are legal,Among the inevitable situations that will catalyzequestions of what constitutes an appropriate legalmilitary and civil relationship are the different domesticmissions of United States agencies under convergenceand the different national philosophies of the States thatsupport international mergers. In the United States,DoD’s mission requirements are an assured capabilityto obtain timely, accurate environmental satellite dataon a global basis145 while NASA’s highest objective isto meet the requirements...of NASA’s Global ClimateChange Research Program.146 This means a 15 yeardata set...which may require instrument capabilitiesbeyond and at times distinct from those required bylimited by prohibitions against nuclear weapons andweapons of mass destruction150 and Earth observationsfrom space by the military have long been recognized asa "peaceful use" of space.151 However, the growingimportance of environmental data for "political" and"geopolitical purposes"152 within the dynamic post-ColdWar era means that the legal use of a merged militaryand civil space-based system can change to aquestionable one with the introduction of any number offactors. And the change can have serious ramificationsfor a wide variety of remote sensing services that willhave come to rely on the operational data fromconverged and merged systems.NOAA and DoD.147 The difference in missionrequirements goes to the very core of each agency’soverall mission and how they elect to fulfill it. Agreeingon system parameters means they do believe theIncreased restrictions from militarilyrequiredregulationsconverged system can meet all of their missions butmaking case-by-case determinations of systemutilization under specific fact patterns remains to be "Shutter control"seen.The Outer Space Treaty holds signatoriesAt the European level, a growing desire for "a internationally responsible for non-governmentalreduced dependence on the US space defencesystems"148 initially appears to be a force contrary tothe decision to join the IJPS and JPS. Reconciling theseactivities in space.153 This is the international legalauthority for nongovernmental entities, includingprivate remote sensing entities, to operate in space. Itcontradictory political impulses will require sharpeningthe legal parameters of national and internationaldefense laws and policies.149 Even the question of whether or not NPOESS ought to beconsidered a military system is an evolving one. Clearly it isintended to serve defense purposes and is, in part, beingThe United States converged system invites a implemented by defense personnel. However, the fact that itfundamental consideration of the United States will be operated on a day-to-day basis by a civil agency isstatutory separation of military and civil space critical and could, in the long term provide a much morepowerful influence on the overall system than the occasionalmilitary authority invoked in times of a crisis. The counterpossibility is that since it is the military that has acquisition144 Crossroads, supra note 138 at 27.145 Convergence Hearings, supra note 102, at 16.146 Convergence Hearings, supra note 102, at 21.authority for the converged system, a powerful influence can beexerted through the sheer force of the authority to spendallocated funds.150 Outer Space Treaty, supra note 56, Article IV.151 Christol - Modern, supra note 21, at 723.147 Convergence Hearings, supra note 102, at 24 (originalemphasis).152 Strategy, supra note 140.

118 EXPANDING GLOBAL REMOTE SENSING SERVICESalso makes the signatory-state a supervising authorityover private activities154 and serves as the interfacebetween domestic and international law, from which thedomestic requirement to license private remote sensingsystems stems.In the United States, domestic authority for privatesystems issues from Congressional legislation155 andExecutive policy.156 Specific licensing regulations to beimplemented pursuant to this authority are beingformulated.157 Determining licensing regulationsrequires balancing the interests of private systemoperators with United States international obligationsand national security and has generated a special issuerelated to openness and one of the most widelydiscussed concerns of remote sensing law: "shuttercontrol." That is, when can the government require acommercial system to cease or modify operations forreasons of national security or international obligations?In the United States, the earliest licenses determinedthat it was "[i]n the event of a national security crisis,as defined by the Secretary of Defense".158 Laterlicenses changed159 and the standards are continuing toevolve.160License requirements are changing, in part, fromapplying the licensing authorization to different kinds oftechnologies. As a result, new licensing procedures areemerging and new attempts at defining licensingrestrictions are being made. The approach so far hasbeen to issue licenses allowing a system to gather dataanywhere, imposing temporal and geographic limitsonly when necessary. National security institutions areless comfortable with this approach for commercialsystems using newer technologies, like hyper-spectraland radar instruments, and have begun to apply newones. New approaches are attempting to controlindividual products more than operations.One approach being used is a process that requiresa licensee, under certain circumstances, to consult with,or obtain, additional government approval after thelicense is granted. This is a two-stage, or tieredlicensing model.161 The first tier approval licenses asystem to operate up to a specific spectral and/orspatial capability.162 To operate beyond the specified159 Shortly after, conditions expanded to include "when nationalsecurity or international obligations and/or foreign policies maybe compromised, as defined by the Secretary of Defense or theSecretary of State, respectively," and if necessary, "afterconsultation with the appropriate agency (ies)," and "to theextent necessitated by the given situation." License issued toLockheed Missiles and Space Company, Inc., by Department ofCommerce, Apr. 22, 1994.154 Outer Space Treaty, supra note 56, Art. VI.155 15 U.S.C. §§ 5621 through 5625 and the Commercial SpaceAct, P.L. 105-303, Oct 28, 1998.156 Presidential Decision Directive PDD/NSC 23 - ForeignAccess To Remote Sensing Space Capabilities, 10 March 1994,[hereinafter, PDD 23].157 62 Federal Register 59317 (November 3, 1997).158 License issued to WorldView Imaging Corporation, byDepartment of Commerce, January 4, 1993.http://www.hq.nasa.gov/off ice/pao/History/sputnik/II37.html,[hereinafter, Worldview].http://www.hq.nasa.gov/office/pao/Histoiy/sputnik/II39.html160 Licenses are also becoming complex enough to containsensitive proprietary information that must be provided by theapplicant to facilitate the licensing process. As a result, licensesmust now be requested through the Freedom of Information Actso that sensitive material can be redacted before release.161 RDL Space Corporation license for its 1-meter resolutionsynthetic aperture radar (SAR) satellite, RADAR 1, Issued June16, 1998. The Space Technology Development Corporationlicense for its wide-area, hyperspectral Naval EarthMapObserver (Nemo) satellite in cooperation with the U.S. Navy,issued March 26, 1999.162 Space News, Orbimage Gets Right to Radarsat 2 Data;RSI's Future Unclear, Jan. 25, 1999, at 1,20, col. 1. RDLSpace Corporation is "barred" from selling any imagery with

EXPANDING GLOBAL REMOTE SENSING SERVICES 119capability, the licensee must seek additional approval.163Second tier approval can also include requiringgovernment consultation before complying with arequest from a sensed state.164This raises a number of legal issues. The first is,upon what statutory basis are second tier restrictionsbased? If they are based on the applicable licensingauthorities,165 then a complete license can be grantedinitially and the multi-part process is an unnecessary,and perhaps an unauthorized, administrative procedure.If the second tier authority is an attempt to addressconditions not contained in the applicable authorities,then the statutory basis for the second-tier license isquestionable.The second question raised by a tiered approach isanalogous to the first: which agency has the licensingauthority for the second set of conditions? The PolicyAct the statutory basis for licensing private systemsauthorizes only the "Secretary of Commerce."166 Other"appropriate" agencies have "consultation" but notlicensing authority.167 If by requiring the licensee toreturn to the government for second tier authority, thelicensee is also required to obtain new approval from anagency other than the Commerce Department, then itmay be that the second tier process is a procedureoutside of the private system licensing authority.A third question raised by the two-tier processregards nondiscriminatory access. Nondiscriminatorybetter than 5-meter resolution to customers other than the U.S.government" To sell to non-US government customers will"require an amendment to the license" Restriction was placedby "Pentagon officials." [hereinafter, Space News 1.]163 Id.164 Space Technology Development Corporation license for itswide-area, hyperspectral Naval EarthMap Observer (Nemo)satellite in cooperation with the U.S. Navy, issued March 26,1999, [herein after STDC license]. Id.165 15 U.S.C. §§ 5621 through 5625; PDD 23. supra note 156.166 15 U.S.C. §5621.access applies to private systems by specificCongressional intent168 and operational activities likeonboard processing can not be used to preventaccess.169 Absent a national crisis, license requirementsthat modify operations and which preventnondiscriminatory access to commercial system data bya sensed state violate international and domestic law.170When national security is jeopardized, restrictions nototherwise allowable, are, of course, permissible. Thequestion then becomes, what standard is used to imposethe restrictions? The standard has shifted from adefinable "crisis" to a nebulous possibility that anynumber of policies might be compromised. In the firstlicense the standard was "[i]n the event of a nationalsecurity crisis, as defined by the Secretary ofDefense,",171 and has expanded to the proposed standardwhich is, "[d]uring periods when national security orinternational obligations and/or foreign policies may becompromised, as defined by the Secretary of Defense or168 Gabrynowicz, supra note 89 at 100."It thus seems clear that the United States should continue itspolicy of nondiscriminatory data access when space remotesensingactivities are commercialized. The Committee hasdrafted the legislation to reemphasize this policy forcibly, andto give it for the first time a statutory basis. Further, [it] hasbeen drafted to provide clear guidance to the Secretary ofCommerce and any system operator with respect to thecommercial implications of a policy of nondiscriminatoryaccess." H.R. Rep. No. 98-647, 98th Cong., 2d Sess., 10-13(1984)."[T]he Committee has refrained from making any changes inthe nondiscriminatory access provision as it applies to privatesystems. Specifically, the Committee is reluctant to take anyaction which: 1) could interfere with U.S. Treaty obligations; 2)might revive debate in the United Nations about the legitimacyof remote-sensing without prior consent by the sensed nation;and 3) sets a precedent which might lead other nations toimpose increased restrictions on access to their data from theirgovernment-operated remote-sensing systems." H.R. Rep. 102-539, 102d Cong., 2d Sess., 53, (1992).169 ABA, supra note 27, at 145-147.170 Gabrynowicz, supra note 89.167 15 U.S.C. §5621. 171 Worldview, supra note 158.

120 EXPANDING GLOBAL REMOTE SENSING SERVICESthe Secretary of State."172 Although the proposedstandard has yet to be formally adopted, a current radarsystem licensee is already restricted from providing datato a sensed state.173 A current license also requires ahyper-spectral system operator to first consult withNOAA, who in turn consults with DoD and the StateDepartment, when a sensed state requests data.174 Underthe broad proposed standard, the licensee could berequired to deny the requested data on the merepossibility that a "policy...may be compromised."A special question of openness is rased if a licenseapplicant is a news-gathering agency, or will serve alegitimate news-gathering agency for legitimate newsgatheringpurposes. This raises specific FirstAmendment doctrines in the licensing process regarding"shutter control." The standard in the proposed rules isif national interests "may be compromised."175 TheGovernment could require a licensee to stop imagingand/or distributing data of a particular area. Thisstandard falls far short of the Constitutional FirstAmendment standard that a prior restraint can only beimposed where there is a "clear and present" danger.176A license restriction based on what "may" occur is animpermissible prior restraint. Additionally, theproposed rules provide that the decision to imposeshutter control will be made "at the Secretarial level."In the case of restricting a Constitutionally guaranteedFirst Amendment freedom, like news-gathering, theproper procedure is to seek a determination of legalityin a court. Placing the decision "at the Secretarial level"as to whether or not a newsgathering activity may beimpeded is to substitute a political decision for a legaldecision.172 Proposed Licensing Of Private Remote-Sensing SpaceSystems, 15 C.F.R. § 960.10, at 59328, (1997), [hereinafter,Proposed Rule].173 Space News 1, supra note 162.174 STDC license, supra note 164.175 Proposed Rule, supra note 172 at 59318.176 Schenck v. United Stales, 249 U.S. 47, at 52 (1919).Finally, it should be expected that openness, in thiscase in the form of commerce, will be compromised tothe degree that conflict exists or is believed to exist.Conversely, it can be expected that in times of lessconflict, the more openness will be fostered. If conflictprevails then more militarily-required regulations willcontinue because the new restrictions are attempting tocontrol advanced capabilities which provide anadvantage in times of crisis. Where the existence ofconflict is debatable, it should be noted that the currentregulations provide a bias toward openness. Theyrequire that where "a tension between the policy ofpromoting the commercial use of remote-sensingsystems and the policies of promoting national securityinterests" the Secretary of Commerce has the"discretion [to] undertake reasonable efforts tosatisfactorily resolve the matter in favor ofcommercialization."177Unsurprisingly, some of these legal issues are tiedto political ones. A primary political issue is regardingthe role that commercial imagery will play in the futureof national security. This issue is being addressed interms of the Future Imagery Architecture, the NationalReconnaissance Office (NRO)/DoD initiative to definetheir next generation of satellites. There is strongCongressional support for a large measure of privateparticipation in future national security activities,particularly in the form of using private systems formilitary operations. It is unclear whether relevantnational security institutions agree. The use of privatesystems is discussed further in the next section.Joint Vision 2010, the proposed doctrine of"Space Control," and employing privatesector remote sensing systems for militaryusesWith the end of the Cold War and the turn of themillennium, institutions around the world are lookingahead for new purpose and direction. This includes themilitary whose responsibility and effectiveness depends177 Licensing Of Private Remote-Sensing Space Systems, 15C.F.R. § 960.1, at 267, [Revised as of January 1, 1998].

EXPANDING GLOBAL REMOTE SENSING SERVICES 121in large part on anticipating the future. In the UnitedStates, this has taken the form of Joint Vision 2010(JV2010), a Defense Department vision statement thatintegrates the future missions of all branches of theArmed Forces.178 It is a "conceptual template" forchanneling "the vitality" of personnel and "leverag[ing]technological opportunities to achieve new levels ofeffectiveness in joint warfighting."179 Each ArmedForces branch has, in turn, analyzed its corecompetencies in terms of JV2010.The United States Air Force envisions part of itsfuture mission to include "Air and Space Superiority"which is "establishing control over the entire verticaldimension"180 and "information superiority, which is"the ability to collect, control, exploit and defendinformation while denying the adversary the same".181United States Space Command deems "space power[as] vital" to achieving Joint Vision 2010"182 and hasdeveloped a Long Range Plan183 to support it.184 Theconcept of "Space Control" has emerged from this planwhich is "the ability to ensure uninterrupted access tospace for US forces and our allies, freedom of178 Department of Defense, Defense Technical InformationCenter, Joint Vision 2010, Downloadable and available athttp://www.dtic.mil/doctrine/jv2010/jvpub.htm179 Id at 5.180 U.S. Air Force On-line Library, 1997 Air Force Issues Book,The Air Force and Joint Vision 2010,http://www.af.mil/lib/afissues/1997/issues24.html181 U.S. Air Force On-line Library, 1997 Air Force Issues Book,The Air Force and Joint Vision 2010,http://www.af.mil/lib/afissues/1997/issues28.html.182 U.S. Space Command, Director of Plans, Peterson AFB,CO., Long Range Plan, Chapter 2, at 1. Downloadable andavailable at http://www.spacecom.af.mil/usspace/LRP/toc.htm.183 U.S. Space Command, Director of Plans, Peterson AFB,CO., http://www.spacecom.af.mil/usspace/l.RP/cover.htm184 U.S. Space Command, Director of Plans, Peterson AFB,CO., Long Range Plan, Introduction, at 1. Downloadable andavailable at http://www.spacecom.af.mil/usspace/LRPTOC.htmoperations within the space medium and an ability todeny others the use of space, if required."185JV2010, Space Control, and related concepts raiseimportant general space law questions. For example,any doctrine based on the "control" or "denial" of spaceraises Outer Space Treaty issues under the freedom ofaccess and right to use provisions.186 Because the OuterSpace Treaty incorporates the U.N. Charter and all ofinternational law by specific reference187 there are alsocomplicated issues of the right to self-defense and otherrelated issues to consider.However, unlike a number of elements in theseemerging doctrines which are legally questionable,remote sensing by all sectors is a peaceful, legal use ofspace.188 And for remote sensing law in particular, thesedoctrines are important because remote sensing iswidely believed to be the next major commercial spaceactivity, expected to be used for both civilian andmilitary purposes. In the event of hostilities, thepresence of commercial remote sensing satellites in lowEarth orbit and/or the use of them by national securityorganizations makes them likely to be among the firsttargets attacked by adversarial forces. This possibilityraises key legal questions including whether or notattacking a civilian space asset constitutes an act ofwar. Is striking a licensed commercial satelliteanalogous to sinking a merchant ship sailing under anational flag? Is striking a licensed commercialsatellite used for military purposes also in thiscategory? If commercial systems are used for nationalsecurity purposes, remote sensing legal questions alsoinclude the status of nondiscriminatory access. In theUnited States under domestic law, private systems arerequired by their licenses to provide data to sensedstates and, without statutory revision, are unlikely to be185 U.S. Space Command, Director of Plans, Peterson AFB,CO., Long Range Plan, Chapter 2, at 5. Downloadable andavailable at http://www.spacecom.af.mil/usspace/LRP/toc.htm.186 Outer Space Treaty, supra note 56, Arts. I and II.187 Outer Space Treaty, supra note 56, Preamble, Art III.188 Christol Modern, supra note 21, at 723,731-2.

122 EXPANDING GLOBAL REMOTE SENSING SERVICESexempted.189 Depending on the level of secrecy desired,this could limit the effectiveness of commercialsatellites for reconnaissance purposes.While JV2010 has been accepted at the Departmentof Defense level, Space Control has yet to be-it is farfrom clear whether Space Control is a workable defensedoctrine. Major factors that call its viability intoquestion are "key policies, agreements, and treaties".190Remote sensing raises issues regarding antisatelliteactivities. Officially accepting responsibility forprotecting nonmilitary satellites means being confidentthat, in the event one is attacked, an in-kind response ispossible which, in turn, involves the intricate, decadeslongpolitical and legal problems surrounding the use ofantisatellite measures.191 Other factors that call theviability of Space Control into question are economic.Officially accepting responsibility for protectingnonmilitary assets also means establishing expensiveoperational assets which would place fiscal constraintson other defense priorities.The rationale for Space Control is the increasingdependency of the United States and its allies on spaceassets for commerce and national security and theexpectation that they will continue to become moreinterrelated in the future.192 "Information dominance" isthe operational concept that will, in this view, ensuresecurity in the information age space environment.193The turbulent results of the temporary failure of the189 Gabrynowicz, supra note 89.190U.S. Space Command, Director of Plans, Peterson AFB,CO., Long Range Plan, Chapter 11. Downloadable andavailable athttp://www.spacecom.af.mil/usspace/LRP/ch11.htm191 Christol, Carl Q., The Role o f Law in United Stales - SovietAnns Control and Disarmament Relations, 21 The InternationalLawyer at 519 - 560, (1987).192 U.S. Space Command, Director of Plans, Peterson AFB,CO., Long Range Plan, Chapter 5.Downloadable and availableat http://www.spaceconm.af.mil/usspacc/LRP/toc.htm.193U.S. Space Command, Director of Plans, Peterson AFB,CO., Long Range Plan, Chapter 5, at 1. Downloadable andavailable athttp://www.spacecom.af.mil/usspace/LRP/ch05a.htmGalaxy IV commercial communications satellite, inMay, 1998, have been referred to as a minor exampleof the kind of chaos that can occur with the loss of aspace asset. This is the kind of crisis which SpaceControl concepts are intended to prevent and which isadvanced as the justification for the kind of strategy itrequires. However, space has been an exclusivelyweapons-free, peaceful, legal, political and operationalenvironment for decades. This is, in very large part, dueto the rule of law and diplomatic measures which wereimplemented as practical avenues to preventing hostilespace activities. Risking this stable environment withprovocative doctrines ought not be undertaken lightly.And with "no peer competitor on the horizon forAmerican military power,"194 the post-Cold War erapresents an opportunity to reinforce law and diplomacyat a time of reduced space threats.When the use of private systems are used either asa justification for, or as an implement of, Space Controlthen issues regarding openness and the expansion ofglobal remote sensing services arise. Where publicprivateseparation is a value using the private sector toprovide available services rather than using governmentcapabilities, is an expansion of space-based services.The national security community is already looking toprivate services to provide and enhance theircapabilities.195 However, considering that thecommercial viability of remote sensing has also beenlinked to defense needs by the economic reality thatcommercial systems are unlikely to survive without thegovernment as a reliable, long-term customer,196another interpretation is possible. This situation may becreating a self-reinforcing post-Cold War militaryindustryrelationship that is giving rise to a nascentmilitary-informational complex analogous to themilitary-industrial complex of the Cold War. If this isthe case, then openness, as an operating principle, may194 International Institute for Strategic Studies, The MilitaryBalance 1997-1998, (1998).195 Space News, U.S. To Buy Private Imagery fo r Intelligence,April 12, 1999, at 1, col. 1.196 Defense Information and Electronics Report, Experts: DoDNeeds To Back Commercial Imagery Efforts to Reap Benefits,May 7, 1999 at 1.

EXPANDING GLOBAL REMOTE SENSING SERVICES 123be at risk and if the commercial satellites evolve into anextension of military functions more than as a service tothe general market, then the expansion of ground-baseddata and information services may be restricted.Yet, in attempting to define new missions in thepost-Cold War era, even previously highly-classifiednational security institutions are moving toward levelsof openness that were once inconceivable.197 It may alsobe that to justify their missions in the information age,maintaining a level of accessibility and visibility thatwas once unnecessary will become a practicalrequirement and will lead to an unprecedented era ofopenness. Time will tell. Finally, while this particulardiscussion is about emerging United States issues, itmust be noted that other countries are involved in SpaceControl-like policies198 and similar matters,199 makingconcepts like these of a more global interest.Establishing and maintaining long-term,coherent regional and global remotesensing data archivesLike the Cold War human spaceflight programs, theearly political rationale for remote sensing was todemonstrate technological superiority of theparticipating nations. This meant that the primary focuswas on the space segment where satellites displayedtechnical sophistication overhead. Satellites, likespacecraft that carried humans, became symbols ofnational preeminence and remote sensing nationsoffered data as an incentive for aligning with them.200And, to a large degree, it worked. This space-segmentfocus meant, however, that attention to the satellites'product, data, was virtually nonexistent. As a result, along-term, coherent regional and global approach to thearchiving of remotely sensed data has yet to beestablished. Data from numerous satellites haslanguished in uncoordinated, fractured repositories innations around the world.While enormous progress has been made indesigning, developing and operating remote sensingsatellites, an analogous effort for the ground segmenthas only recently begun. Some nations did, relativelyearly, recognize that their strength would be in theground segment and placed their national efforts ondeveloping it.201 However, it was not until this decadethe economic value of data has been recognized in boththe public and private sectors and has become theprimary driver for data-oriented organizational efforts.The emerging approaches are occurring quickly with astrong emphasis on intellectual property rights and dataprotection. Where the necessary focus is on relativelyshort-term interests like cost-sharing of publicly-fundedsatellites or generating revenue from private satellites,this is to be expected.However, data, unlike the wealth-generatingphysical products of the industrial age are not depletedwhen sold or distributed and can be combined withother data to make entirely new, also nondepletable,products. In many cases, data values shift fromeconomic to scientific over time.202 Therefore legal197 Consider, for example, the educational outreach role of thepreviously highly-classified National Reconnaissance Officehttp://www.nro.odci.gov/index.html and the on-line commercialinformation of the National Imagery Agency, formerly theDefense Mapping Agency. http./ / 164.214.2.59/nimahome.html198 Ha'aretz, supra note 17.199 Reuters, U.S.-Israel Satellite-Imaging Firm Plans BondIssue, Tel Aviv, Israel, February 28, 1999. Regarding aproposed commercial Israeli system, it was reported that,"governments [are expected] to be attracted to[ it] because itwas less expensive than developing their own militarysurveillance program, which could cost five to 10 times asmuch."200 For example, since 1975, nations receiving Landsat datawere required to participate in the Landsat Ground StationOperations Working Group (LGSWOG). Although still inexistence, it has yet to function as a true global network.201 1984 House of Lords Select Committee Report on RemoteSensing and Digital Mapping.202 This fact is demonstrated by the contract terms betweenNASA and Orbimage for the Orb-View2 satellite, also knownas SeaStar with the Sea-viewing Wide Field-of-view Sensor(SeaWiFS). In this contract, the Government procures spacebasedenvironmental remote sensing data for research purposesfrom a commercial operator. Researchers can receive data freelybut only after the data is at least two weeks old, when the initialcommercial value of the data has declined.

124 EXPANDING GLOBAL REMOTE SENSING SERVICESstructures for long-term preservation meaning a centuryor more ought to be considered on regional and globalterms. These inquiries ought to go beyond issues ofspace segment operations and require analysis ofinternational law and the laws of many nations in fieldsbeyond international space law: intellectual property,archival preservation and management, trade law, andmore. It also requires consideration of these samesubjects as they relate specifically to remote sensing.203These are subjects that go well beyond the scope ofthis paper.204 They are being raised more as aninvitation to mount a long-term, concerted effort toconsider this most complex -and important- remotesensing activity. The reason for this invitation was mosteloquently described by economist and futurist, HermanKahn:"We keep records for the same reason that webuild schools, or rear our children, or supportour aged parents. It is one of those things thatwe do without asking ourselves whether or notit represents a profitable investment but simplybecause it is our innate assumption thatcivilized men can do nothing else. We knowthat because we are not barbarians we mustkeep records. In other words, the keeping ofrecords in a civilized society is primarily an actof faith. We keep records because of our deepemotional and intellectual commitment to thevalues of the civilization of which we are apart, and to what our ancestors did and to whatwe hope our children will do."ConclusionImagine a meeting of space lawyers in the year 2050.Possible agenda items may include identifying203 Principles, supra, note 5, Principles VI, VII, and VII, and 15U.S.C. 9 5652, for example.204 Gabrynowicz, J.I., Earth Observations: the View From TheGround, 13 Space Policy, 229-244. This paper presents asurvey of various ground segments and suggests the complexityof ground segment issues.appropriate conditions for denying severe weather datafrom a multinational remote sensing system dedicatedto both military and civil missions; interpretingprovisions of the 2005 Treaty Relating to RemoteSensing o f the Earth from Space; or access rights toseventy-five year old data. Attendees will, as part oftheir analyses, look to precedent for guidance. Fromtheir future position, these space lawyers may be ableto look back and analyze how budgets and. technologychanged early space law principles. From their vantagepoint these future lawyers may also see that their 1990'spredecessors worked in a dynamic post-Cold War legalenvironment that expanded some global remote sensingservices while limiting others. The legal work done inthe 1990s required releasing obsolete precedents,establishing new ones, and identifying enduringprecedents to be preserved for future generations.Let that work begin.Acronym GlossaryASCAT Advanced ScatterometerAVHRR Advanced Very High ResolutionRadiometerAMSU-A Advanced Microwave Sounding UnitARGOS Data Collection and Location SystemCEOS Committee on Earth ObservingSatellitesCOPUOS Committee on the Peaceful Uses ofOuter SpaceDOD Department of DefenseDMSP Defense Meteorological SatelliteProgramESA European Space AgencyEUMETSAT European Organisation forMeteorological SatellitesGPS - S Global Positioning System - SounderHIRS High-Resolution Infrared SounderIASI Infrared Atmospheric SoundingInterferometerIJPS Initial Joint Polar SystemJPSJoint Polar SystemJV2010 Joint Vision 2010METOP European Meteorological OperationalSystem

EXPANDING GLOBAL REMOTE SENSING SERVICES 125MHSNATONASDANASAMicrowave Humidity Soundermust be open to the benefit of all peoples and countriesNorth Atlantic Treaty Organization of the Earth irrespective of their degree of economic,National Space Development Agency social, cultural, scientific and technologicalof Japandevelopment. The information obtained should not beNational Aeronautics and Space used to the detriment of any country or peoplesAdministrationregardless whether the public (including the military)National Meteorological Service sector or the civil sector is concerned. The UnitedNations and their specialized agencies,Intergovernmental Organizations, Non-GovernmentalOrganizations, countries and peoples must beencouraged in all aspects to undertake remote sensingactivities not only for scientific research, educationalprograms, and meteorological observation but also forcommercial activities. International cooperation isfundamental to global expanding remote sensingservices, and it is important and necessary that at anytime more States can participate in this activity not onlyas an owner of satellites, but also as an operator ofremote sensing services, etc. The 21st century will bethe century of expanding global remote sensing servicesand lawyers of the world must be familiar with spacelaw in order to be able to formulate domesticregulations in their countries with respect to spaceactivities which have commercial application. To thenext UNISPACE Conference global remote sensingservices will be a reality in the same sense as spacetelecommunication services are a reality to theUNISPACE III Conference today.NMSNOAA National Oceanographic andAtmospheric AdministrationNPOESS National Polar OrbitingEnvironmental Satellite SystemNRO National Reconnaissance OfficeOMI Ozone Monitoring InstrumentPOES Polar-orbiting OperationalEnvironmental SatelliteSAR Synthetic Aperture RadarSARSATSatellite-Aided Search and RescueSBUV Solar Backscatter Ultra VioletMonitorSEM Space Environment MonitorUSSPACECOM United States Space CommandWMO World Meteorological OrganizationCommentary PaperCarlos H. Rebellon BetancourtIn view of this important activity it is urgent andnecessary to clarify the legal situation with respect toremote sensing activities with an international treaty inaddition to existing space law and principles ofinternational law. Thereby the present fragile reality ofthe Remote Sensing Principles as contained in UnitedNations Resolution 41/65 could be changed. ThesePrinciples are considered by many lawyers as bindingcustomary law. For others this is not the case becauseUnited Nations Resolutions are not considered to beobligatory and binding - they are an expression ofgeneral principles only. It is important that globalexpanding remote sensing services are firmly linkedwith space law as well as general international law andnot only with the rules of the commercial market.Global expanding remote sensing services must rulewithout any kind of restriction in the sense that theyCommentary PaperAlexander V. YakovenkoThe UN Principles on Remote Sensing of the Earth bySatellites play an important role in international spacecooperation today. In Russia, for example, no specificlegislation concerning Remote Sensing exists.Therefore, the Principles are directly applicable to theregulation of this important matter.Nevertheless, notwithstanding the fact that a greatmany countries are acting in approximately the samemanner, the Principles are not to be regarded as true

126 EXPANDING GLOBAL REMOTE SENSING SERVICEStreaty-type obligations of international law. Again, theUN General Assembly Resolution containing thePrinciples can be utilized as a sound basis for thefurther development of international space law.The key issue today on the path towards the furtherdevelopment of the Principles and their modificationinto a legally-binding document remains the matter ofthe availability of information.The Principles distinguish three types ofinformation:• "primary data", which are acquired by remotesensors borne by a space object and transmittedor delivered to the ground by telemetry in theform of electromagnetic signals, photographicfilm, magnetic tape or any other means;• "processed data", which means the productsresulting from the processing of primary data,needed to make these data usable;• "analyzed information", which results from theinterpretation of processed data, inputs of dataand knowledge from other sources.The commercialization of remote sensing systemswill lead to the situation when processed data andanalyzed information will have their own commercialvalue, stemming from the very simple fact that certainfunds have been invested in those systems, whileprocessed data and analyzed information can and haveto be sold, at commercially viable prices, to compensatefor the costs.This fa c t, in turn, creates the very complicatedsituation at the hypothetical negotiations on the issue ofturning the Principles into a legally-binding documenton Remote Sensing, because, in this case, the fragilecompromise achieved while drafting the current set ofPrinciples may be violated. The principle of free accessto the sensing of a state's territory was accepted inreturn for access to information. This principle problemis also indirectly dealt with in Principle V, which statesthat countries carrying out remote sensing activities areto promote international cooperation in these activities.To this end, they shall make available to other Statesthe opportunities for participation therein. Suchparticipation is to be based in each case on equitableand mutually acceptable terms. The private sector maywell conduct its activities on other grounds in theabsence of national legislation, reflecting the contents ofthe UN-adopted Principles.Principle VI sets forth the desirability of concludingregional agreements and arrangements, when possible.Principle VII underlines the necessity of. makingavailable technical assistance.Thus, if it comes to the elaboration of a new legallybindingdocument, the issue arises of the legal regime ofthe three types of data mentioned previously, which willbe in the hands of the private sector.There are serious doubts that the current politicalsolutions may be reiterated in a legal form. New oneswill have to be found in the course of negotiations. Itcan be supposed that such a compromise could moreeasily be found within the framework of acomprehensive new treaty on Outer Space, which wouldbe based on the principle of "package solutions". In anycase, however, we will most likely have to setdifferentiated legal regimes fo r the dissemination o fprimary data, processed data and analyzedinformation.Commentary PaperM. G. ChandrasekharSpace programs worldwide are poised for atransformation into a mature scientific and industrialsector, with multiple players and changing roles. Earthobservation, which began as a small scale activityaimed at mapping the earth's surface features, hasbecome a commercial activity, comprising of satellitesand an entire chain of associated activities and players.Information is the currency of power and the advancesin space technology has made it possible to haveaccurate and strategically important informationderived from satellite data, in a cost-effective and timelymanner. The increased thrust on commercializationand industrial investment is leading to a scenario

EXPANDING GLOBAL REMOTE SENSING SERVICES 127where the developments are more and moredetermined by market forces. The improved awarenessabout potential and prospects as well as reduction ingovernmental controls is paving the way for multipleplayers including private agencies operating satellitesystems for earth observation The dualism betweenstrategic co-operation and competition is becoming theorder of the day and the evolution of a new set ofrelationships among different players - Government,Industry, User agencies and International organizations- have already begun, leading to a vibrant commercialremote sensing market.It is in this context that the legal aspects ofexpanding global remote sensing services need to beexamined. Various aspects discussed in the paper onPrinciples clearly demonstrate the need to transmit theterms o f the Principles into a treaty. But, whileadapting to the current environment, it is essential thatvarious associated aspects need to be carefullydiscussed and concluded by the internationalcommunity, even though these Principles have sustainedthe pressures and provided the framework at a criticaland evolutionary stage.On the issue of openness and data access, thequestion is one of determining the limits andboundaries o f information access and control. Whilethe complex dynamics of politics, economies andtechnology interacting with the Law may affect theprogress in this regard, the decisive factors are going tobe the application potential and their ramifications in agiven political environment. As the technologicaladvances are bound to enable extraction of critical andstrategically important information from satellite data,the dual power of information, either destructive orconstructive, is going to influence the decision making,more or less analogous to the current state of dual usetechnologies, but much easier to decide on access or'shutter control' in view of the transparency inapplication potential and prevailing politicalenvironment.In a fast changing technological scenario, neither theheritage nor the origin of an innovation should mattermuch. In other words, the military heritage of earthobservation technology has only helped in makingcertain technological 'leapfrogs' possible in thebeginning and 'convergence' later on, in some cases. Itmay not be the lineage, but the resultant technologicaladvancement and hence the information on content thatbrought certain restrictions on data access. As theemerging post-cold war contribution of 'militaryinformationalcomplex' analogous to the 'militaryindustrycomplex' of the cold war is going to putopenness principle at risk, the efforts of theinternational community have to be focused on arrivingat a framework to ensure the availability of data forpeaceful applications, in spite of such doctrines as thato f 'space control'.Establishing and maintaining long-term, coherentregional and global remote sensing data archivesarises as one o f the good suggestions to meet thepeaceful application needs, particularly of thedeveloping countries. The technological advances incommunication and information as well as in otherassociated sectors makes it possible to have easy accessand dissemination of data from these archives.Summary ReportThree fundamental Considerations by the PrimaryAuthor Prof. Joanne Gabrynowicz were examined,namely:1) U.N. Principles have acquired the force of law.COPUOS ought to consider transmitting its terms intoa treaty.2) Increasing access restrictions (shutter control) areweakening the openness principle upon which much ofremote sensing law is based.3) Establishing and maintaining long-term, coherentregional remote sensing data archives.The Commentators Dr. Carlos H. RebellonBetancourt, Mr. Alexander V. Yakovenko, and Dr.M.G. Chandresakhar underlined the necessity to clarifythe legal situation by transmitting the Principles of

128 EXPANDING GLOBAL REMOTE SENSING SERVICES1986 into a treaty. One opinion was that this could bedone possibly within the framework of a "package"solution". The need to investigate the possibility ofsetting up data archives was stressed.There followed a lively discussion in which took partLuc Dufresne, CNES (France); Prof. GabriellctCatalano Sgrosso, Italy; Ms. Masami Onoda,Japan/UN Office of Outer Space Affairs; Dr.Bhupendra Jasani, United Kingdom; Prof. Ram Jakhu,McGill University Montreal, Canada; Prof. S. Bhatt,India; P rof Mani, India,' Dr. Patrik Salin, Canada; Mr.lcometela, Rep. of South Africa and John Gantt, USA.The proposals made by the primary author andfurther elaborated by the commentators were discussed.It was proposed that the transformation of the UNPrinciples on Remote Sensing into a Treaty should takeinto account the following:Since the Principles were adopted almost 15 yearsago they have to be adapted to the needs to the 2 1stcentury. They should take into account the growingglobalisation and privatisation of remote sensingservices. In this connection also national securityinterests have to be taken into account as well as thelegitimate use of such services for monitoring armscontrol measures.

THE ROLES OF INTERNATIONAL ORGANIZATIONSIN PRIVATIZATION AND COMMERCIAL USEOF OUTER SPACESESSION 5Chair: Mr. G. Lafferranderie (European Space Agency)Coordinator/Rapporteur: Dr. B. Schmidt-Tedd (Germany)

SESSION FIVEThe Roles of International Organizationsin Privatization and Commercial Useof Outer SpaceDiscussion PaperChristian RoisseLegal AdviserEUTELSATParis, FranceThe views in this discussion paper are those o f the author and donot reflect necessarily those o f EUTELSAT.Preliminary noteThe purpose of this discussion paper is to comment onthe impact of the intergovernmental satelliteorganizations in the development of the commercial useof Outer Space and to provide information on thereasons, processes and methods used in restructuringthese organizations, together with some related remarksabout space law.The International SatelliteOrganizations have considerablyhelped foster the development of thecommercial use of Outer SpaceIn the early nineteen sixties, any utilization and, aboveall, any commercial use of Outer Space was notconceivable with the involvement of entities other thanintergovernmental agencies. This was due to thestrategic importance of space activities and the hugeamounts of funds involved in embarking upon theseactivities. In addition, telecommunications were providedby Administrations in a monopolistic situation withintheir own respective territories and the broadcasterswere national, public bodies, subsidized by theirindividual governments. All telecommunications, radioand television services were considered as publicservices. Finally, the satellite telecommunicationsindustry was in its infancy.In 1964, eleven nations decided to establish a globalsatellite telecommunications system via a kind ofinternational cooperative to provide telecommunicationsservices on a universal non-discriminatory basis. Thisresulted in the creation of the InternationalTelecommunications Satellite Organization(INTELSAT).The reason for establishing INTELSAT wasdefined as the design, development, construction,establishment, maintenance and operation of the spacesegment of a global commercial communications system(see Article II a) of the INTELSAT Agreement).Inmarsat began in 1979 as the International MaritimeSatellite Organization established under the auspices ofthe Intergovernmental Maritime ConsultativeOrganization (now the International MaritimeOrganization, IMO) to provide the space segment forimproving maritime communications especially distressand safety services. Inmarsat’s competence hassubsequently been expanded to include aeronautical andland mobile communications. The EuropeanTelecommunications Satellite Organization(EUTELSAT) was established on a permanent basis on1 September 1985 to implement a digital network in

132 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACEEurope for the provision of telecommunications servicesthrough its space segment. It was not conceived as aglobal organization like INTELSAT and Inmarsat but asa regional organization. The European Space Agency(ESA) played an active role in the creation ofEUTELSAT.INTERSPUTNIK was founded in 1971 to establishand develop an international satellite communicationsystem. At its inception, it was composed of members ofthe Eastern block but its membership has now beenexpanded to countries like Yemen, Laos and Nicaragua.Finally, the Arab Satellite CommunicationsOrganization, which is composed of Arab countries fromthe Middle East and the area around the Mediterraneansea, was created in 1976.As an additional comment on existingintergovernmental satellite organizations, this paperexcludes both the European Space Agency, as it is notinvolved in operational services in space, and theEuropean Meteorological Satellites Organization(EUMETSAT), as it does not offer services in the fieldof telecommunications, radio or television but, rather inthe field of meteorological data where the economic,competitive and regulatory environment is totallydifferent. Like ESA and EUMETSAT, the only currentmembers of INTERSPUTNIK and ARABSAT areStates that are responsible for taking all decisions (notonly of a political, strategic or institutional nature butalso operational and financial).As far as INTELSAT, Inmarsat and EUTELSATare concerned, each was built on the same model; thesame legal form of intergovernmental organizationcreated on the basis of an international treaty(Convention for Inmarsat and EUTELSAT, Agreementfor INTELSAT) signed and ratified by member states(the Parties) complemented by an Operating Agreementsigned by the Telecommunications Operators, one percountry, designated by their respective Party to be the"Signatories". These constituent instruments are closelyinter-related. In addition, as for any intergovernmentalorganization, there is a Headquarters Agreement and aProtocol on Privileges, Exemptions and Immunities, thesame internal structure with:an Assembly of Parties in charge of decidingprimarily on the general direction of the organization,its relations with States and other internationalorganizations, on matters affecting policy or the longtermfuture of the organization and applications foraccession by new members,a Board where Signatories, as investors, take alloperational, financial and commercial decisions.Signatories voting rights are linked to investmentshares,an executive organ headed by a Director Generalwhich is the permanent organ of each organization. Itimplements the Board’s decisions and submitsproposals to it,the same or substantially the same provisions in theConvention/Agreement and in the Operating Agreementin each of the three organizations,application of the same principles of nondiscrimination in the three organizations, same tariffsand equitable access to the space segment from theterritories of the members, irrespective of theirgeographical location or the level of their investmentshare,the same purpose, i.e. not to make a profit but, inaccordance with their charter to operate on a soundeconomic and financial basis,basically, the same members as far as EuropeanStates are concerned,procurement policy on an international competitivebasis,a system like a cooperative where Signatoriescontribute financially to the system in proportion totheir investment shares calculated in accordance withtheir use of the space segment and provision of servicesby the Signatories in competition with each other usingspace segment capacity leased at cost.Since the date of inception of these organizations,it can be said that they have fulfilled their mission and

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 133AND COMMERCIAL USE OF OUTER SPACEdemonstrated that the sharing of risks andresponsibilities at international level and under publiccontrol within public/private hybrids for huge long-terminvestments has proved to be of paramount importancefor the development of the commercial use of OuterSpace.The procurement of a very large number of satellitesand launchers has given industry a unique opportunityto develop a new and very important market withimproving competitiveness. The services provided viathe space segment of the organizations have developedconsiderably into the telecommunications sector(telephony, data and mobile services, radio andtelevision, etc.).As for the relevance of public space law to theseintergovernmental satellite organizations, suffice to saythat they are committed to act for peaceful purposes andthat they follow the procedures established by theInternational Telecommunication Union for frequencycoordination. With regard to the internationalconventions on Outer Space, only ESA and EUTELSAThave declared their acceptance of the rights andobligations provided for in the Convention onInternational Liability for Damage Caused by SpaceObjects of 25 March 1972. ESA has also declared itsacceptance of the Convention on Registration of ObjectsLaunched into Outer Space of 14 January 1975. Up tonow, EUTELSAT has not been in a position to do thesame even if a declaration of acceptance has alreadybeen approved by the Assembly of Parties, because thecondition of majority under Article VII of theConvention on Registration has not yet been fulfilled asonly twenty two of the forty seven EUTELSAT memberstates are Parties to the Convention on Registration. Forthe time being, practical arrangements have been madewith the French government for the temporary inclusionof the relevant satellite data, once the satellites havebeen launched, on the register of France.It is worth noting that because of their size, it ismuch more difficult for INTELSAT and Inmarsat thanfor ESA or EUTELSAT to follow the acceptanceprocedure for these Conventions because of thecondition of majority. In any case, following analysis,these two organizations did not see any immediatepurpose in making efforts towards acceptance of therights and obligations of these Space Conventions.The development of the commercialuse of Outer Space has contributedto the restructuring process of theinternational satellite organizationsAt the beginning of the nineteen nineties, changesoccurred in the market place with dramatic growth incompetition together with a progressive liberalization ofthe telecommunications sector. Consequently, under thepressure of the Parties and Signatories which, astelecommunications operators, were becomingprogressively privatized, the international satelliteorganizations more or less at the same time started tostudy how they could accommodate their operationalactivities to the competitive environment of satelliteservices and adapt their structure accordingly.A gradual process was initiated as early as 1991 inorder to define through a number of extensive studiesand meetings of specialized working groups how thelegal structure of these organizations could be adapted.As a first step for change, INTELSAT, Inmarsat andEUTELSAT endeavoured to ensure that theorganizations evolved in two areas:Relaxation of the consultation procedures relatingto economic harm in the case of a space segmentseparate from that of these organizations beingestablished or used to provide international publicservices: INTELSAT and Inmarsat, decided onprogressive increases in the ceiling of traffic beyondwhich this consultation procedure was needed.EUTELSAT decided to eliminate de facto theapplication of this procedure as from 1992. Suchrelaxation gave more opportunities for new entrants onthe market for satellite communication services.Improved access to the space segment:arrangements were set up to admit “non-Signatoryentities”, that is to say entities having direct access tothe space segment and investing directly, subject to anagreement at national level between the relevant Party

134 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACEand Signatory but with no right to participate and tovote together with the Signatories.As a second step, various amendments were decidedin particular so as to allow a member State to designatemore than one Signatory in its country. Theseamendments have not yet entered into force as therequired number of acceptances by the Parties has notyet been reached (two thirds of the Parties whoseSignatories hold at least two thirds of the investmentshares).It should be noted that the purpose of such effortswas to optimize the way in which the organizationsfunctioned by adapting or even reinforcing theirunderlying principles (see the concept of multipleSignatories per country) rather than to reform andmodify.In parallel, and even though INTELSAT, Inmarsatand EUTELSAT had already been feeing withcompetition for some time from high capacity terrestrialfibre cables and private satellite operators such as SESand PANAMSAT, and also national systems, growingpressure for change increased, driven by certain Partiesand Signatories and by competitors that criticized thestructure and the privileges and immunities, particularlyin the case of INTELSAT. Rather than being obliged toaccept changes imposed by external forces, the threeorganizations decided to be proactive in theirrestructuring process.A wide range of alternative scenarios were preparedand examined before decisions could be taken on thelong-term evolution of each of these organizations, froma complete reshaping of the structure, which wouldremain nevertheless an intergovernmental organization,to the formation of purely private company.In the case of Inmarsat, the Council decided in May1994 to create a private limited company under Englishlaw as an affiliate in order to provide a valid alternativeto the consortia created for the provision of satellitepersonal communications services to be operatedthrough constellations of satellites located in low earthorbit or intermediate circular orbit (GLOBALSTAR,IRIDIUM, ODISSEY, etc.). Inmarsat holds a minorityshareholding in the Company named ICO and has a seaton the Board of Directors.New Skies NV was created in 1998 as a companyunder Dutch law, to which five INTELSAT satelliteshave been transferred together with the rights tofrequencies and orbital locations originally used byINTELSAT and now under the authority of the DutchAdministration. The purpose of this spin-off companyis to provide space segment capacity for directbroadcast and multimedia services. There arecommitments from INTELSAT to operate an arm’slength policy vis-a-vis the company in whichINTELSAT holds a minority shareholding.The issue of the legal structure of the threeorganizations was still under discussion.Inmarsat restructuring culminated in the entry intooperation of a holding and an operating company underEnglish law on 15 April 1999. The decisions onEUTELSAT restructuring were taken at the 26thmeeting of the Assembly of Parties in May 1999.The method adopted by Inmarsat and also byEUTELSAT is the following: amendments to theConvention provide for transfer of the assets,operational activities and associated liabilities to aprivate company under national law (several in the caseof Inmarsat). The Operating Agreement and theSignatories disappear and are replaced mutatismutandis by the Articles of Association and theshareholders in the company. Eutelsat S.A., a companyunder French law, will be established by mid-2001. Thestaff is also transferred to the company but with achange of status.An intergovernmental organization remains butwith a role limited to the supervision of basic principleswhich are equivalent in both organizations: nondiscrimination,commitment on service to geographicalareas, fair competition, universal service/public serviceobligations (which consist in the case of Inmarsat incontinued provision of services for the Global MaritimeDistress and Safety Systems).

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACE135The remaining EUTELSAT intergovernmentalorganization has no share (in the case of Inmarsat, thereis a special share in the company) and cannot interferein its commercial activities.A contractual document (Arrangement forEUTELSAT, Public Service Agreement for Inmarsat)between the intergovernmental organization and thecompany defines their respective rights and obligations,in particular with respect to the performance of the basicprinciples by the company.Inmarsat requested and obtained the agreement ofthe European Commission to its restructuring packagein September 1998 and EUTELSAT made a similarnotification on 9 July 1999.The European Commission gave guidelines for thechanges in the International Satellite Organizations whenadvocating in the green paper on satellitetelecommunications of 20 November 1990 direct access,deletion of the economic harm procedure, decoupling ofinvestment shares from utilization, commercialindependence of the organizations, cost-orientation oftariffs and separation of regulatory and operationalaspects.For INTELSAT, even if the decisions onrestructuring have not yet been taken, it is likely that asimilar scheme to the one adopted by Inmarsat andEUTELSAT will be followed. One pending issue whichneeds careful consideration is how to ensure in the futurecontinued international, and in some cases, evendomestic telecommunications traffic, for a very largenumber of developing countries. It is not certain that amechanism for supervision of such public serviceactivities within the remaining INTELSATintergovernmental organization and via some type ofcontract with a company would suffice in practice.Another possibility to explore would be to insert specialprovisions in the Articles, of Association of the companyso as to give directly to the operators of the countriesdependent on the INTELSAT satellite system certainrights regarding matters related to continuity of services,utilization rates, etc.Among legal issues raised in the restructuringprocess of Inmarsat and EUTELSAT, one deservesparticular attention, namely provisional application ofamendments to the Treaty. In addition to the issue of theamending procedure itself (for such extensive changes,is the amendment procedure enough? should anintergovernmental conference be convened to terminatethe existing Treaty and adopt a new one?), the issue ofprovisional application raised complex legal questions.Article 25 of the Vienna Convention on the Law ofTreaties provides for such a possibility. According tothe amending procedure contained in the Inmarsat andEUTELSAT Conventions, no amendment can enter intoforce as long as the Depositary has not receivedacceptance of the amendment from a required numberof Parties (two thirds of Parties whose Signatoriesrepresent at least two thirds of the investment shares).It was considered essential to secure a fixed date forthe entry into operation of the company and in parallel,therefore, to the “normal” amendment procedureallowing a reasonable time for Parties to notify theiracceptance of the amendments, it was agreed by theAssembly to fix a specific date when, should therequired number of acceptances not be reached, theamendments would nevertheless be provisionallyapplied and the company would start to operate. Someprovisions were included to avoid legal difficulties of aconstitutional nature in certain countries.It should be noted that the decisions on provisionalapplication in Inmarsat and EUTELSAT were takenwithout a vote and by consensus. In the case ofEUTELSAT, there were even no statements attached byParties.In the case of INTERSPUTNIK, two interestingsteps were taken. The first was the introduction ofSignatories having more or less the same rights andobligations as the Signatories in INTELSAT, Inmarsatand EUTELSAT. The relevant amendments have notyet entered into force (three more notifications ofacceptance are required). The second is thatINTERSPUTNIK formed a joint-venture withLockheed Martin Corp. in April 1997 named LockheedMartin Intersputnik (LMI).

136 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACEAfter this short description of the restructuringprocess of the intergovernmental satellite organizations,it can be said that the new companies stemming from theinternational organizations will not be in a position toaccept the rights and obligations of the SpaceConventions, and it is doubtful whether the remainingintergovernmental organizations with no furtheroperational activity in space would accept any liabilityderiving from acceptance thereof. In the case ofInmarsat Ltd., established under English law, the UnitedKingdom is a Party to the Space Conventions mentionedabove and this is also the case of France and EutelsatS.A. which will be established under French law.Concluding remarksThe intergovernmental satellite organizations have beencreated on the same model and have worked for anumber of years according to the same principles;because of their purposes and of the markets on whichthey operate, they have been faced with the challenge ofadapting their mission and structure to a newenvironment. It is likely that this unprecedented changein intergovernmental organizations will result, even ifthere are many similarities in the restructuring modelswhich have been adopted, in entities with very differentdestinies in the future.Commentary PaperRestructuring of InmarsatMr. David SagarLegal ConsultantInmarsatReasons For Restructuring1 Inmarsat’s restructuring was completed on 15 April1999, when the Inmarsat system was transferred toprivate sector UK-based holding and operatingcompanies (“the Companies”). However, theintergovernmental organization (“IGO”) continuesunder an amended Convention in order to oversee andenforce the continued performance of the GlobalMaritime Distress and Safety System (GMDSS)services and certain other obligations by the Companiesunder a Public Services Agreement.2 Inmarsat was the first of the international satelliteorganizations (ISOs) to privatize but Intelsat andEutelsat are also engaged in similar processes. Thisreport explains why Inmarsat’s Member States felt itnecessary to embark on this privatization and sets outthe main features of the new structure as well asmentioning some of the special corporate, commercialand legal problems which had to be overcome.3 On the initiative of the International MaritimeOrganization (IMO), Governments set up Inmarsat in1979 to utilize space technology for worldwidemaritime communications, especially for safety of lifeat sea. The 1980’s were years of steady growth forInmarsat, with few commercial pressures. Its serviceswere extended to aeronautical and land mobilecommunications, and today there are over 150,000users of the system worldwide.4 From around 1990, however, a combination offactors urged change upon Inmarsat's co-operative andinter-governmental structure, namely:increasing privatization of the telecommunicationsindustry in many countries;the advent of competing satellite systems such asIridium and Globalstar, affecting the risks associatedwith further investment in Inmarsat;a demand by regulators including the EuropeanCommission for wider access to space segment capacityand a demand for removal of privileges and immunities,to create a level playing-field with the competitors;an urgent need for a more normal corporate structure,with limited liability of investors and a small, fiduciaryBoard able take decisions quickly, and raise capitalfrom the financial markets for new systems;

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 137AND COMMERCIAL USE OF OUTER SPACEthe desire of many of Inmarsat’s owners to maximise thevalue of their investment in the Organization whichcould mainly come about through public trading of theirshares; the owners also wanted to be able to invest on avoluntary basis at levels of their own choosing, insteadof on a mandatory basis in proportion to theirinvestment shares.5 The challenge was how to restructure whileretaining governmental interests. Inmarsat’s Partiesinsisted on guarantees that the Organization’s publicservice obligations would be maintained. In 1996, theEleventh Inmarsat Assembly decided that five BasicPrinciples should underlie any new structure, namely:continued provision of services for the Global MaritimeDistress and Safety System (GMDSS) set up by theInternational Maritime Organization (IMO);non-discriminatory access to services;service to all geographical areas where there is a need,including rural and remote areas;peaceful purposes;fair competition.6 Other Essential Elements of the restructuringincluded continued governmental oversight of the basicprinciples, broad ownership of the corporate entity, andparticipation by developing countries and smallinvestors.7 Over 9 years from 1990, the restructuring processunderwent various phases ranging from proposals tomodify the financial and governance structure to therealization that full scale privatization was necessary forInmarsat's long-term financial viability. It was necessaryto reconcile widely differing policies of its Members,many of which wanted to retain the IGO structure, whileothers would only accept a privatized entity competingequally with other satellite system operators.8 The reluctance of many of Inmarsat’s largeshareholders to invest further in the existing structure ledto the loss of a major satellite handheld communicationsmarket opportunity, known as Inmarsat-P in 1994. Asa result, a separate and independent company, ICOGlobal Communications (ICO), was formed to providesuch services. In 1996, an opportunity for investmentin a global Inmarsat satellite navigation service wasalso declined.The New Structure9 The long restructuring process culminated in thedecisions of the Inmarsat Assembly at its Twelfth andThirteenth Sessions in 1998 which led to theprivatization on 15 April 1999. Wide-rangingamendments to the Inmarsat Convention and OperatingAgreement were adopted to transform the Organization,with the following main features:(i) The Inmarsat assets and business, and its staff,were transferred on 15 April 1999 to a multi-corporatestructure, consisting of a holding Company (InmarsatHoldings Limited) and an operating Company (InmarsatLimited) incorporated under English law, and based inLondon at the same headquarters.(ii) The former Inmarsat Signatories receivedordinary shares in the holding Company in a cash-freeexchange for their previous investment shares. Theyalso have limited liability.(iii) The Companies' objects are to continue toprovide global, regional and domestic satellite services,especially maritime, aeronautical and land mobilecommercial services, and distress and safety andnavigation services.(iv) The Companies have no privileges andimmunities, and have the same status under nationalregulation and in IGOs such as the ITU and the WorldTrade Organization, as any private competitor.(v) There are some special features in the structureof the Companies intended to reflect the varyinginterests of the current membership and the globalscope of Inmarsat’s operations. The fiduciary Boardof Directors of the holding Company will have up to 15members, including shareholder directors, independent

138 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACEdirectors, and three directors from smaller shareholdersor developing countries. There will be an identicalBoard in the operating Company.(vi) Other special features include a limit onshareholding by any one investor to 15% of the issuedcapital, except that the United States shareholder will beable to retain its existing share of about 22% for thetime being.(vii) There is also a requirement for the Company tohold regional meetings to consider local interests.(viii) During the initial 12 months after 15 April1999, trading of shares will mainly be possible amongthe existing shareholders; thereafter, it will be possiblefor the holding Company to issue shares to multipleinvestors from any country and to strategic investors.The holding Company will make an initial publicoffering (IPO) on appropriate stock exchanges withinapproximately two years after that date.(ix) The operating Company will continue to act asa wholesaler of space segment capacity to the existingland earth station operators, which are owned by formerSignatories and provide the existing services to themobile end-users. This arrangement was made underLand Earth Station Operator Agreements (LESOAgreements) concluded between the Company and eachof the operators, on identical conditions, for an initialfive year term.(x) The IGO will continue to exist, with anamended Convention, but its only organs will be theAssembly and a small Secretariat. The purpose of theIGO will be to ensure that the Company continues tomeet 1he following Basic Principles referred to above.Other obligations of the Companies are toobserve the international regulatory requirements andinternational standards of the ITU, IMO and ICAO, andalso to work towards the IPO for the holding Company’sshares.(xi) The IGO will own a Special Share in theholding Company, entitling it to veto changes tospecified parts of the Company’s Memorandum andArticles of Association that relate to GMDSS and theother public service obligations.(xii) There is a contract, called the Public ServicesAgreement (PSA), between the IGO and theCompanies, enabling the IGO to oversee theCompanies’ performance of the basic principles andother public service obligations, and, if necessary, totake certain enforcement action. The continuingexistence of the IGO will be reviewed when IMOconfirms that there are alternative providers of GMDSSservices.(xiii) The IGO will continue to cooperate with theUN and the Committee on the Peaceful Uses of OuterSpace, and its Specialized Agencies.Special Problems10 Various corporate, commercial and legal problemshad to be resolved during the long restructuring process.Corporate and Commercial Issues11 These issues included the delinkage of investmentshares from utilization; early dilution of ownershipthrough a public listing; the right of shareholders todetermine their own level of investment; the size of thefiduciary Board of directors; enhancement of theinterests of developing countries through pricing andother policies; demand for appointment of Directorsfrom smaller and developing countries; the need forindependent Directors; limits on the size of individualshareholdings; and restraint on convergence of Inmarsatwith ICO.12 Another hard-fought issue was to negotiate thestandard form of the LESO Agreement referred to inparagraph 9 (ix) above. Most of the LES operators hadbeen Inmarsat Signatories, in control of Inmarsat’scommercial decision-making through the InmarsatCouncil. Restructuring would mean the loss of thatcontrol, and they insisted on having the LESOAgreement in order to guarantee their investments and

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 139AND COMMERCIAL USE OF OUTER SPACEbusiness in their LESs for a minimum period after therestructuring.13 There was, on the other hand, broad agreement onmaintenance of GMDSS services and other BasicPrinciples, and on many Essential Elements such as theneed for more commercialization, improved governance,broader ownership and access to space segment, andremoval of privileges and immunities.Limited Liability14 Consideration was given to restructuring in the formof a treaty-based public international corporation Thisraised an important public international law problem asto whether limited liability of shareholders could beachieved in such a corporation. Research indicated thatthis could not be assured, and according it becamenecessary to establish a national law corporate structure.Provisional Application15 The most crucial legal problem was whether therestructuring amendments could be provisionallyapplied. Normally, amendments to the Convention andOperating Agreement took years to enter in force. It wasconsidered vital to implement the new commercialstructure without delay to enable decisions to be madeon large investments and new satellite systems andservices, on which the future commercial viability ofInmarsat would depend.16 Though provisional application is recognized underArticle 25 of the Vienna Convention on the Law ofTreaties, its use by decision of a governing body of anIGO is not so extensive. The problem is one that hasfaced other organizations. Legal analysis of the issuesupported the view that the Inmarsat Assembly hadpower to decide to implement the amendmentsprovisionally.17 Some Parties were precluded by their constitutionsfrom accepting provisional application without speciallegislation, particularly where the Convention did notitself provide explicitly for provisional application aswas the case with Inmarsat. For those countries,practical solutions were proposed whereby aprovisional application decision by the Assemblywould be subject to the internal laws of each Party, butwithout affecting the restructuring of the Organizationat the international level.18 In accordance with the decision of the Assembly,the restructuring amendments to the Convention andOperating Agreement were therefore appliedprovisionally as from 15 April 1999, pending eventualformal entry into force of the amendments.Conclusion19 Inmarsat is the first international satelliteorganization known to have restructured itself into aprivate sector entity. The process established a newform of constructive relationship between the privatesector and governments as to the way in which spacetelecommunications are provided to the worldcommunity. Another special feature of the restructuringis the role of IMO, which is not a party to the PublicServices Agreement, but whose decision about theavailability of alternative satellite systems able toprovide GMDSS services will affect the duration of theCompanies’ legal obligations under that Agreement.20 The influence of Inmarsat’s pioneering work inrestructuring has already been seen. For example, inMay 1999, Eutelsat’s Assembly of Parties adopted asimilar decision on accelerated (or provisional)implementation on its restructuring amendments.Another example is in the Draft Final Report of EC’sAd-Hoc Working Group on the Set-Up of anOrganisational Framework for GNSS, May 1999.Though the Report has not yet been adopted by theCommission, it refers to the restructured Inmarsat IGOand the Public Services Agreement as one of a numberof possible models for a proposed GNSSAdministration which would have responsibility forestablishing and managing the future GNSS.

140 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACECommentary PaperTransformation of Intersputnik’sregulatory basis at the phase ofcommercial operation of its spacesegmentVictor S. VeshchunovDirector, Legal and InternationalDepartmentIntersputnik International Organisation ofSpace CommunicationsIn the context of the processes of liberalization andderegulation of the global telecommunications marketINTERSPUTNIK faced the necessity to radicallychange its principles of activity as well as the strategyof its development. The new challenges of time requiredfrom the Organization highly efficient operation of thesatellite system in order to obtain the maximum profit.These challenges were met by INTERSPUTNIKentering into the third phase of establishing aninternational satellite communications system asstipulated by Article 5 of the Agreement on theEstablishment of the INTERSPUTNIK InternationalSystem and Organization of Space Communications(hereafter - Basic Agreement), i.e. "the commercialoperation of the communications system using a spacesegment owned by the Organization or leased from itsmembers".In 1993, the XXIInd Session of the Board resolvedto procure the Organization's own space segment for thepurpose of its commercial use. To this end it wasnecessary to promptly change INTERSPUTNIK'sregulatory basis to adapt it as much as possible to thenew requirements. First of all, it related to theabove-mentioned Basic Agreement. In 1993-1996 anad-hoc group of legal experts of the Member countriesof the Organization elaborated and coordinated two newConstructive Instruments of the Organization - theProtocol on Amendments to the Basic Agreement andthe Operating Agreement. Subsequently, thesedocuments were approved at the XXVth Session of theBoard. The Protocol will take effect as from the date ofreceipt by the Depositary of the Basic Agreement, theRussian Government, of notifications of acceptance bytwo thirds of Organization's Member countries. TheOperating Agreement, in its turn, should be signed bythe communication entities appointed by theINTERSPUTNIK Member countries no later than threemonths after the Protocol coming into force.During the elaboration of the above documents, thegroup had to resolve a number of complicated legalproblems.Firstly, it was decided to draw up the Protocol andOperating Agreement simultaneously in order to avoidconflicts between them and eventual "legal vacuum".One should note, that the Operating Agreement is aninterdepartmental international treaty and should besigned either by a Member of the Organization(Government) or by a telecommunications entity fellingwithin the jurisdiction of the appropriateINTERSPUTNIK Member (Signatory).Secondly, the problem arose of the so-called "dualmembership". In full conformity with provision 4 (C)Article 30 of the Vienna Convention on the Law ofTreaties, it was decided that the Members of theOrganization which do not adopt the Protocol and,correspondingly, do not appoint anytelecommunications entity to sign the Protocol, willcontinue their membership in the Organization. TheBasic Agreement will be effective in its original versionas regards the relationship between a Member of theOrganization, which adopted the Protocol and aMember, who did not.Thirdly, it was decided that amendments to theBasic Agreement should be drafted in a form ofProtocol because the amendments to an agreement shallhave the same legal status as the agreement itself. Thus,it was initially understood that the Protocol onAmendments will have a status of an internationaltreaty and should be adopted by the Member countriesby means of ratification.

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 141AND COMMERCIAL USE OF OUTER SPACEThe Protocol and Operating Agreement provide forthe following changes in the INTERSPUTNIK'sstructure and principles of activity:A space segment can be leased not only from theMember countries of the Organization, but from anyother country . The satellites of the Organization can belaunched, positioned in orbit and controlled bycontractors who are not Members of the Organization.A new body, Operations Committee, is established. It isa body of the Organization for immediate examinationof and decision-making on different issues related to theOrganization’s activity. The Operations Committee isgiven extensive powers. At the same time, the sessionsof the Board are held less often, its competence is limitedto the most important policy issues and long-term goalsof the Organization. The Auditing Commission will beaccountable to the Operations Committee and not to theBoard.The institution of Signatories is introduced. ASignatory is a telecommunications entity appointed byits government. The government has the right to appointmore than one Signatories from a relevant country. Anyduly licensed telecommunications entity regardless oftheir form of ownership can be appointed Signatory.Correlation between the Protocol and the OperatingAgreement is also manifested in the fact that a statecannot be a Party to the Basic Agreement if the abovestate or a Signatory appointed by it do not sign theOperating Agreement. Thus, the termination of themembership of a Signatory in INTERSPUTNIK or thetermination of the membership of a Member willautomatically entail termination of the membership ofthe Signatory or a Member in the Organizationrespectively.The weighted voting procedure is implemented in theOperating Committee, each Signatory having a voteequal to its investment share in the Share Capital.All financial liability issues, including the shares inthe Share Capital are transferred from Members of theOrganization to the Signatories.The above modification of the INTERSPUTNIKlegal foundation made it possible to start endeavoursaimed at procuring INTERSPUTNIK own spacesegment. According to the resolution of the Board, theOrganization procures it by, firstly, filingINTERSPUTNTK's own orbital slots in geostationaryorbit and, secondly, manufacturing and operatingOrganization's own communications satellites.In view of the fact that in accordance withinternational law the frequency-orbit resource canbelong to states only, but not to internationalorganizations, it was decided to file orbital slots in twoways: firstly, by asking the Member countries tofacilitate the filing, coordination and notification ofpossible INTERSPUTNIK's orbital slots, and,secondly, by using orbital slots, earlier notified by theMember countries of the Organization, which do notuse them at present.The 6th meeting of the Committee ofPlenipotentiaries adopted and the Board subsequentlyapproved “The Procedures of ITU notification ofsatellite networks planned by INTERSPUTNIK andtheir international legal protection”. Under the aboveProcedures, the decision in principle to submit a filingfor planned satellite networks to the ITU should betaken by the Committee of Plenipotentiaries (OperatingCommittee). The terms and conditions applicable to thenotification and international legal protection of aplanned satellite network shall be stipulated byagreement concluded by the Director General ofINTERSPUTNIK and the notifying administration.Financial terms and conditions shall be stipulated byadditional protocols between the Director General andnotifying administration. Any terms and conditionsapplicable to the reimbursement for the allocation bythe notifying administration of its geostationary orbitalpositions to INTERSPUTNIK shall, as soon as thesepositions are coordinated, be covered by the terms ofreference of the Committee. The Director General(Directorate) and a Notifying Administration areresponsible for filings and international and legalprotection of such satellite networks.As of mid-1999,20 geostationary orbital slots wereallocated to INTERSPUTNIK . The Republic of Cuba

142 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACEfiled two orbital slots for INTERSPUTNIK's purposes(Agreement on Cooperation in the Field of InternationalLegal Protection of the LATAMSAT Planned SatelliteNetworks of November 10, 1998), the Republic ofBelarus provided 13 orbital slots (Agreement onCooperation in the Field of International LegalProtection of the INTERBELAR and INTERSPUTNIKPlanned Satellite Networks of June 2, 1996).INTERSPUTNIK also received two Mongolian slots(Agreement on Cooperation in the Field of InternationalLegal Protection of the Planned Orbital-frequencyAssignments to the Broadcasting and Fixed SatelliteService of September 29, 1998) and three Ukrainianslots (Agreement between the Cabinet of the Ukraineand the INTERSPUTNIK International Organization ofSpace Communications on Cooperation in the Filed ofthe Utilization of the Satellite CommunicationsNetworks of September 24, 1998).In the framework of the INTERSPUTNIK Boarddecisions regarding the Organization’s own spacesegment a strategic alliance with Lockheed Martin Corp.was struck. On April 18, 1997, a Joint VentureAgreement between the INTERSPUTNIK InternationalOrganization of Space Communications and LockheedMartin was signed (Agreement). The document becamea unique one as it was the first experience of formalizingsuch an alliance between an intergovernmentalorganization and a transnational corporation. Thespecific feature of the Agreement resulted in a numberof non-standard provisions stipulated in it.The following main conditions of the Joint VentureAgreement were set forth in the resolutions of the Boardand Committee of Plenipotentiaries:up;Mutually acceptable percentage of interest was set- INTERSPUTNIK's contribution is its satelliteoperator experience, orbital slots and marketingof transponder capacity- For operating the first satellite,INTERSPUTNIK will get a fixed percentage ofthe total satellite revenue.- LM's contribution is satellites and relevantinvestments (launch, insurance etc.).- Joint Venture's name will be changed toLockheed Martin INTERSPUTNIK (LMI)- Joint Venture's Board of Directors will consistof nine directors: 7 LM directors and 2INTERSPUTNIK directors. The directors arenot entitled to any compensation from the LMI.- Principal issues will be decided by asupermajority affirmative vote of 80% of theBoard of Directors' votes.Thus, INTERSPUTNIK does not invest in LMI, itsshare being the experience in the field of satellite systemoperation, marketing and coordinated orbital slots forthe new satellites.The XXVIth Session of the Board resolved toappoint INTERSPUTNIK's Director General and hisDeputy to the LMI Board of Directors. TheINTERSPUTNIK Board also decided thatINTERSPUTNIK's representatives on the LMI Boardof Directors should have a consolidated vote whichcannot be split without a relevant resolution of theBoard (Committee) of the Organization.In July 1998, in Vienna, the LMI BoD decided toimplement the participation for Khrunichev StateResearch and Production Space Center (Russia) as aclass B shareholder which does not provide for votingat the Shareholder’s Meetings and does not give anyrights to dividends. The Board of Directors wasextended to 10 persons and one director fromKhrunichev State Research and Production SpaceCenter was nominated with the right to vote at theBoard of Directors. Accordingly, it was decided that allthe resolutions which require a supermajority of thevotes should be adopted by a majority of 81% of theBoard of Directors votes.The fourth LMI Board of Directors meeting held inMay 1999 took an important decision that the Companyshould implement the goals and purposes it wasestablished for. Therefore, the potential and resourcesof its shareholders should be used to the maximumextent to ensure management, administrative andoperational services of the Company. In the light of thesigned Memorandum on itemizing the interactionprinciples between INTERSPUTNIK and LMGT, the

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 143AND COMMERCIAL USE OF OUTER SPACEBoard noted that LMI was responsible for operativecontrol of the LMI-1 satellite and INTERSPUTNIK, inits turn, was responsible for the customer networkcontrol and LMI-1 payload. The interaction conditionsbetween the Parties are subject to a tripartite agreementbetween INTERSPUTNIK, LMI and State UnitaryEnterprise “Kosmicheskaya Svyaz” (Russia), which isbeing finalizedTo summarize, one can say that the establishment ofth e Lockheed Martin INTERSPUTNIK joint venture isa result of a long and hard work to aimed at procuringOrganization’s own space segment. It can become amilestone in the history of INTERSPUTNIK andprovide the following benefits to the Organization:- new satellites manufactured without anyinvestments from the Member countries;- INTERSPUTNIK significantly influences theoperation of LMI;- INTERSPUTNIK keeps its operator functions;- usage of new satellites creates opportunities toincrease traffic, expand the range of the servicesprovided, earn higher revenues and profits.Commentary PaperLeonard S. DooleyVice President, External AffairsINTELSATINTELSAT Background• Established in 1964• Global commercial cooperative• UN Resolution named in INTELSATAgreement as the first reason for itsestablishmentINTELSAT Today• Currently have 143 member-nations• Interconnect over 200 countries• Own and operate a fleet of 17 satellites with 5INTELSAT IX spacecraft on order• INTELSAT Serves the World• Revenue by Service• Revenue by Region• Worldwide ServiceINTELSAT Responding to Change: TheCurrent Competitive Environment• The Competition: Large, well-fundedcompetitors such as Hughes PanAmSat,Americom, Skynet, Astra/Asiasat• Investment Obligation: Investmentresponsibility increasingly fa lls on developingcountries• Core business PSN (telephony) not growing:growth will come from video, Internet, andprivate/business networks• Market/Financial Analysis: Advisors say wewill have difficulty competing asintergovernmental cooperative• Regulators are calling for the restructuring ofINTELSAT• European Commission calls for a public stockoffering with limited role for residualintergovernmental organization (IGO)• U.S. Senate seeks to encourage fullprivatization of INTELSAT by end-2001 bycreating risk of loss of access to U.S. marketand withdrawal from INTELSATFirst Steps• Effective removal of Economic Harm Test inArticle XIV (d)• Direct access arrangement• Multiple Signatory Amendments• Spin-off of New Skies Satellites, N.V.INTELSAT Privatization: Background

144 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACE• INTELSAT is committed to transforming fromcooperative to private company as necessary forsurvival• First step in INTELSAT restructuring occurredin April 1998 at the Assembly of Parties inBrazil• Created spin-off company New Skies SatellitesN.V. (NSS)• Parties asked for INTELSAT to change• INTELSAT’s Shareholders in April 1999 calledfor further rapid changes to improvecompetitive position• Overwhelmingly endorsed study of privatizationplans• Clear mandate to protect Lifeline ConnectivitiesINTELSAT Privatization: Goals• Continue to fulfill Lifeline ConnectivityObligation (LCO)• Maximize value to customers and shareholders• Offer enhanced services and attractiveterms and conditions• Attract outside investment to expand currentmarkets and enter new growth markets• Improve INTELSAT’s competitive position• Preserve INTELSAT assets in single entity• Same market access as other commercialcompetitorsMarch 1999: The Board Evaluated FourOptions for CommercializationOption 1 Maintain structure, with “liberalinterpretation”Option 2 Maintain structure, amend key provisionsOption 3 Create private INTELSAT with residualIGO to ensure Lifeline ConnectivityObligation (LCO)Option 4 Fully commercial INTELSAT with LCOpreserved in Corporate Commitments.Nine Core Principles• Competitive and Commercially Viable• No Division of Assets• Protect the LCO• Ability to Expand Service Offering• Maximize Customers and Shareholders Value• Ability to Serve Domestic and InternationalMarkets• Adhere to Fair Competition Principles andPractices• Provide Distribution Opportunity for Investors• Ability to Pursue Rand DEleven Business Evaluation Factors• ITU Orbital Registrations• Protection of the LCO• Corporate Governance• Ground Segment Investments• Financing Future Investments• System Access and Distribution Channels• Transfer of Signatory Contracts andObligations• Capital Structure/Liability Limits• Jurisdiction• Landing RightsImpact on Cash Flows and DividendsFive Privatization Models Analyzed byJune 1999 BoardPure Corporate Model (“Model A”)• Full commercial powers• Governance board with fiduciary duty to NewINTELSAT elected by all shareholdersModified Corporate Model (“Model B”)• Full commercial powers

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 145AND COMMERCIAL USE OF OUTER SPACE• Governance board with some membersrepresenting specific interests but still owingduty to New INTELSAT and all shareholdersSpecial Purpose Corporation (“Model C”)• Full commercial powers• Governance board owing duty to both NewINTELSAT and to specific constituencieswhich directors representCable Consortium Model (“Model D”)• All capacity pre-sold to owners• No growthModified Cable Consortium Model (“ModelE")• INTELSAT today without privileges andimmunitiesJune ‘99 Board’s Conclusion of FiveModel AnalysisConcluded that further analysis must be done onModel B (“Modified Corporation”), andpossibly on Model A (“Pure Corporation”)• Instructed INTELSAT Management to focus onCorporate “New INTELSAT” by developing adetailed business plan of New INTELSAT forthe September ‘99 Board• Developed guiding principles for protection ofcountries which rely on INTELSAT as theirsole communications lifeline to the rest of theworld• Requested a draft transition plan forprivatization for September Board meeting• Requested additional work on issues includinggovernance of New INTELSAT, the LCO, therole of any remaining IGO, and the appropriatejurisdiction of New INTELSAT• Formed a “Special Committee onRestructuring” of the Board to work withINTELSAT Management on these issues• Made recommendations for adoption by theupcoming Assembly of Parties in October 1999including:• Recognition of the importance ofcontinuity of service and that aprecondition to privatization is theacquisition of landing rights for NewINTELSAT in a significant number ofcountries• Grant New INTELSAT landing rights forall existing and planned services• Recognize the importance of Signatoriesand Parties not foreclosing, or seeking toforeclose, landing rights to NewINTELSAT’s competitorsIn ConclusionPrivatization: Seamless TransitionIn the areas of Governance:• Governance structure for a privatizedINTELSAT must include a voice for smallerownersContinuity of Service:• Sales and marketing, operational and technicalresources would continue to be in place withprivatization of INTELSATLanding Rights:• When single privatization option selected, IMcan begin process of ensuring landing rightsare in placeEnforcement of LCO Protections• Upon its inception, New INTELSAT willhonor all existing commitments• LCO qualifying countries have the addedoption of accepting the LCO arrangements• LCO arrangements will be legally binding onNew INTELSAT• LCO obligations will be enshrined in thecharter documents of New INTELSAT

146 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACE• If there is a residual IGO, its primary functionwould be to mediate and, if necessary, seekenforcement of the LCOPrivatization: Summary• INTELSAT remains committed to its uniquemandate to provide lifeline connections to itscustomers• New INTELSAT will honor existing contractprices and terms and conditions• Privatization will strengthen INTELSAT’sability to compete and attract new funding• INTELSAT will be able to target key growthmarketsCommentary PaperMr. P. HulsrojEUMETSATShould the UN be privatised? No, not possible yousay instinctively, but is it instinctively in the samefashion as we said: no, not possible, when privatisationof parts of INMARSAT was first mooted?So, to answer the question let us not rely oninstincts, but on analysis.If we look at the UN's peace-fostering andhumanitarian role, it is clear that many areas are, in fact,already partly privatised. Private aid organisationsabound and Jimmy Carter went to Haiti to broker peacemore in his personal capacity, than as a representative ofthe United States. In an age where "alternative disputeresolution" mechanisms are making rapid advances, theycan be expected also to be increasingly involved inpeace-fostering. And yet the UN cannot be privatised,because at its core it is an institutional framework tochannel inter-state political will. It has an inalienablefunction, if not as world government, then as a tool ofworld governments. The functions of the SecurityCouncil or the General Assembly cannot be privatised.But we are not here to discuss privatisation of theUN, but to discuss privatisation and commercialisationin relation to the intergovernmental space organisations.And yet there is something to be learned from the UNexample, and that is the crucial distinction betweencommercial and public service functions.This is, indeed, a crucial distinction when we try toanalytically grasp the present trend of privatisation ofinternational space organisations. INMARSAT,INTELSAT and EUTELSAT are involved in markets;markets which are being de-regulated and where thevestiges of sovereign power are being swept away bythe current of the market's demand for a level playingfield for all.In essence the argument for privatising theseinternational organisations is that they are engaged inwhat has become a commercial market and that itwould be wrong and unfair if such internationalorganisations would enjoy tax- and funding advantagescompared to their regular commercial competitors. Acompelling logic, particularly when you keep in mindhow national telecommunication monopolies are alsobeing dismantled and privatised.Nevertheless, you will, no doubt, also hear fromMr. Sagar how INMARSAT has had to create specialmechanisms for dealing with its remaining publicservice function; a function which cannot be privatised.And that is the crux of the matter: there are, also inspace, functions that cannot be privatised; which remainof a public sector nature.Intergovernmental organisations were created totake care of public service functions. Where a marketdevelops the intergovernmental organisations disappear,but where this is not the case intergovernmentalorganisations remain. Just like branches of governmentnormally disappear when no longer needed, butgovernment itself subsists.

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 147AND COMMERCIAL USE OF OUTER SPACENow, you could argue that there would be no reasonto retain the special status of intergovernmentalorganisations, even if a dedicated organisationalframework would be needed for carrying out publicservice functions. Why should states not justincorporate a company in any given country to carry outthe common will of the involved states? Here, however,all the reasons that existed when intergovernmentalorganisations were first created remain valid.In a "joint venture" of states no domestic legalsystem should preside, no domestic enforcementmechanisms should apply and states should not, directlyor indirectly, pay taxes to the hosting state of anintergovernmental joint venture.In other words, there is still a link between publicservice functions and intergovernmental organisations,which it would not be in the public interest to break.Moving then to EUMETSAT as a specific case, thequestion is whether EUMETSAT can be considered tobe one or the other species.EUMETSAT is an international meteorologicalsatellite organisation with 17 European Member States.EUMETSAT manages the European meteorologicalsatellite system and provides the funding, which it,again, gets from the Member States which contributeaccording to relative GNP.It is, on the one hand, it is clear that there is anascent market for meteorological products in many ofEUMETSAT's Member States, with also commercialentities offering meteorological services. It is, on theother hand, also clear that this nascent market wouldhave no possibility of sustaining the real cost ofoperating a meteorological satellite system. Economicimperatives mean that the provision of meteorologicaldata will remain a public service function in theforeseeable future and that, therefore, it should beprovided through the framework of an internationalorganisation. This, however, does not mean thatEUMETSAT and its Member States do not heed the callfor commercialisation. EUMETSAT restricts itsactivities to securing the satellite data, but does nottransform it into weather-forecasts or other direct userapplications.This is the task of the meteorologicalservices and the private weather firms.And in order to provide a level playing fieldbetween meteorological services and private weatherfirms access on equal conditions are given to bothgroups, i.e. the commercial arm of a meteorologicalservice is obliged to pay the same license fee as aprivate weather firm. By this EUMETSAT and itsMember States ensure that competition in weatherservicestake place fairly. In other words, EUMETSATimplements down-stream commercialisation.This notwithstanding, you may find that is soundscomplacent, when I argue that the internationalorganisation frame still fits EUMETSAT well. Nosuch thing! It is recognised that the internationalorganisation frame fits only public service functions,and great endeavours are therefore had in EUMETSATto streamline operations to make sure that EUMETSATitself only covers its core public service functions. Thisis, in a sense, similar to the streamlining efforts thathave almost universally taken place in government.In EUMETSAT it manifests itself in empoweringindustry wherever possible, through contracting,outsourcing and extensive use of consultancy. Theconsequence is a fairly limited number of staff and thusa fairly small international organisation.I would like now to turn to another feature of publicservice functions, related, yet fundamentally different.Currently the space treaties in reality treat space asan unlimited resource. Despite the logical finitenessprioritisation of the use of space has not been seen asnecessary and this is even the underlying tenor of theITU, with its first come, first served principle.However, with time there has been a growingrecognition that space is not only logically finite, butalso practically so. The crowding of the geo-stationaryorbit is the most prominent example.And yet the question of prioritisation is not beingtackled. The first come, first served principle of theITU was, admittedly, challenged at the height of the

148 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACE"North-South" redistribution confrontation, where thenot very successful argument went that the highlyindustrialised countries should not be allowed tomonopolise space communications and that developingcountries should have reserved orbit slots. But this wasa different debate than the one I seek to stimulate here onprioritisation, since my challenge is to the "valueneutrality"of the first come, first served principle. Mychallenge is to the principle that a satellite dedicated tobingo is treated just the same as a satellite dedicated tometeorology.I believe that the international community has nochoice, but to define priority rules, when space, or agiven part of space, like the geo-stationary orbit,becomes scarce.In domestic legal systems the state always makessure that resources are made available for its publicservice functions, even if that resource is scarce.Examples are expropriation laws, even domesticfrequency management.In space we must do the same. We must not overdoit and drift towards censorship or naked power-politics,but we need to define rules and mechanisms to be ableto make sensible, objective trade-offs and choices, firstand foremost between public service functions and otheruses.This is difficult, raises fundamental questions onhow we perceive space, and it is urgent.This is the gauntlet I throw you.Commentary PaperUnidroit’s project for the creation of anew regimen governing the taking ofsecurity in high-value mobile assets: awindow of opportunity in the context ofthe privatisation and commercialisationof spaceMartin StanfordPrincipal Research OfficerUnidroitI should first like to thank the organisers of theWorkshop for giving me this opportunity to inform youof a project underway within U n id r o it which is ofdirect relevance to the issue you have before you thismorning, namely the privatisation andcommercialisation of Outer Space. This project, onwhich we have now been working actively for six years,aims to create a new international regimen to govern thetaking of security in certain categories of high-valueequipment. Among the categories of equipment coveredis space property.The starting points for this initiative areappropriately not only legal but also economic. Legal,in the sense that the application of the lex rei sitae ruledoes not particularly lend itself to the resolution oftransborder disputes concerning the validity,enforceability and priority ranking of security rights incategories of equipment like aircraft that will beregularly moving from one State to another or likespace property that will in the ordinary course ofbusiness be located beyond the jurisdiction of anyState.Economic, in the sense that the opportunities forasset-based financing of such high-value mobileequipment have to date been extremely limited becauseof the difficulties lenders face in securing and collectingon such loans. To take the specific example of spaceproperty, those private lenders contemplating lending onthe security of a satellite are clearly going to want firstto find out whether other lenders may already also have

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 149AND COMMERCIAL USE OF OUTER SPACEclaims outstanding against that same asset. And there issimply not going to be any sure way for them to find thisout until such time as a centralised recording system isin place for the registration of interests in spaceproperty. Another practical problem which has hithertotended to restrict opportunities for the use of asset-basedfinancing in respect of space property arises out of thevery nature of space property, namely, the fact that,being physically in orbit, it is not going to be easy torepossess in the event of the debtor defaulting.The proposed UNIDROIT regimen is designed toprovide an answer to both these legal and economicproblems. The method chosen is the creation of a newautonomous international interest in mobile equipment.This interest has been defined in such a way as toembrace not only the classic security interest but alsowhat are increasingly recognised as its functionalequivalents, the seller’s interest under a title retentionagreement and the lessor’s interest under a leasingagreement. The categories of mobile equipment inwhich such international interests may be held have beenconsciously limited to a relatively small number of highvalueassets the common feature of which is that they allmove regularly across or beyond national frontiers in theordinary course of business: aircraft and helicopters,including engines, registered ships, oil rigs, containers,railway rolling stock and space property. This restrictionwas designed to limit the scope for what might otherwisebe considered unwarranted interferences with theapplication of domestic law rules.The future Convention provides holders ofinternational interests with a basic set of defaultremedies designed to be exercisable expeditiously, amatter adjudged to be of major practical significance forthose contemplating lending against such high-valueassets.The international interest will be registrable in anInternational Registry to be set up under the futureConvention. Separate registries are envisaged for eachof the categories of equipment covered. Plans arealready well advanced for the setting up of an AircraftRegistry, for example.Registration will be the key to the internationalinterest enjoying priority over any other interestsubsequently registered as over any unregisteredinterest, international or otherwise. Registration willalso be the key to the international interest’s validityagainst the administrator and creditors in the debtor’sinsolvency.The fact that the International Registry is intendedto be fully computerised means that it will be possiblefor a potential lender to make a search from any pointin the world and to find out, more or lessinstantaneously, the precise status of the asset againstwhich he is considering advancing funds. This factalone explains why the future Convention may beexpected to make such a major difference to the futurepattern of the asset-based financing of high-valuemobile equipment.In structure, the future Convention is intended to besupplemented and implemented for each of thecategories of equipment which it covers by a Protocol.Each Protocol will contain the rules necessary to adaptthe general rules carried in the Convention to theequipment-specific characteristics and requirements ofeach category. For example, the future Space PropertyProtocol will need to provide a definition of the types ofspace property to be caught by the new regimen. Thisraises all manner of policy questions, annotated by theco-ordinator of the Space Working Group, PeterNesgos, in the preliminary draft Space PropertyProtocol which is annexed to the written paper I haveprovided for distribution.The future Space Property Protocol will alsocontain modifications to the default remedies to beprovided under the future Convention. The need forthese modifications stems, as I have mentioned, fromthe ineligibility of most types of space property forphysical repossession. The solution advocated in thepreliminary draft Space Property Protocol is that of theconstructive repossession of an orbiting satellite bymeans of the relevant tracking, telemetry and commandfacilities.

150 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACEIn addition, it is anticipated that most of theregistration provisions for space property will be carriedin the future Space Property Protocol.Much work has been done on this future Protocol bythe Space Working Group set up by Peter Nesgos at theinvitation of UNIDROIT. For the time being, though, theprimary focus of our endeavours remains the earlyconclusion of the future Convention and the first of thefuture Protocols deemed ready by our GoverningCouncil for intergovernmental consideration, the futureAircraft Protocol. A second session of governmentalexperts will be held next month and a diplomaticConference is being tentatively envisaged for the end ofnext year. In view of the civil aviation dimension of thefuture Aircraft Protocol, these intergovernmentalnegotiations are being jointly sponsored by Unidroit andI.C.A.O.Another future Protocol meanwhile lies ready forintergovernmental consideration. This is the preliminarydraft Railway Rolling Stock Protocol, the preliminarywork on which by a Rail Working Group was completedearlier this month. Intergovernmental negotiations onthis future Protocol are to be jointly sponsored byUnidroit and the Intergovernmental Organisation forInternational Carriage by Rail (O.T.I.F.), the premierintergovernmental Organisation in this field.The significance of Unidroit's decision to movethese Protocols forward through the intergovernmentalstage in collaboration with these specialisedintergovernmental Organisations is to be seen in functionof the very important supervisory powers over theInternational Registry to be exercised under the futureConvention by an intergovernmental body. Amongstother functions, this intergovernmental supervisory bodywill have responsibility for designating the Registrar foreach category of equipment. The conferring of thesefunctions on an intergovernmental body was seen as animportant guarantee of the reputation of the internationalregistration system with prospective users. BothI.C.A.O. and O.T.I.F. have served notice of their interestin exercising such functions in relation to aircraftequipment and railway rolling stock respectively.One of the factors remaining to be resolved in thecontext of the preliminary draft Space PropertyProtocol is the identification of the intergovernmentalbody that might suitably be entrusted with theexercising of such responsibilities in respect of thefuture Space Property Registry and the related questionof the most appropriate intergovernmental Organisationor Organisations in collaboration with which Unidroitshould aim to move the preliminary draft SpaceProperty Protocol forward to intergovernmentalnegotiations.Both Unidroit and the Space Working Group tendin principle to believe that the most appropriateintergovernmental partner for Unidroit in this endeavourwould be the United Nations, in particular in view ofthe fact that both the Outer Space Treaty and theRegistration Convention were concluded under itsauspices. We have therefore been in regular touch withthe Office for Outer Space Aff airs on this issue over thepast 18 months and were particularly heartened to hearDr Jasentuliyana in Perugia in May alluding to thepossibility that the United Nations would in future bepaying more attention to the commercialisation of spaceand to collaborating more with other Organisations.This leads me to take up Dr Doyle’s kind invitationto submit recommendations for possible considerationby the Conference. I would have a two-partrecommendation to make. This is:(1) that the Conference consider adopting aResolution recognising the importance for thecommercialisation of space of the workunderway within UNIDROIT for thedevelopment of a new regimen governing thetaking of security in high-value mobileequipment, in particular space property andcalling upon all concerned, whether States orintergovernmental Organisations, to lend theirurgent and active support to U n id r o it so as topermit early completion of work on this futureProtocol; and(2) that the Conference consider issuing a relatedcall to the intergovernmental Organisationsactive in the regulation of matters pertaining to

THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATION 151AND COMMERCIAL USE OF OUTER SPACEOuter Space (such as the U.N., I.C.A.O.,I.T.U., W.T.O. and E.S.A.) to collaborateactively with UNIDROIT in identifying the mostappropriate means of moving the preliminarydraft Space Property Protocol forward tointergovernmental negotiations, in particularthrough the early convening of an informal adhoc meeting to which not only theaforementioned Organisations would be invitedbut also member Governments of theCommittee on the Peaceful Uses of OuterSpace.I believe that the adoption of such a recommendationwould be wholly in line with the announced intention,first, to introduce a greater measure of flexibility intoC.O.P.U.O.S.’ procedures, secondly, for it to devotegreater attention to issues concerned with spacecommercialisation and, thirdly, to give practicalexpression to its desire to collaborate more with otherOrganisations.Summary ReportThe Workshop discussed the characteristic, trend-settingdevelopments in the privatization of certain internationalorganizations (IGOs), focussing on the area oftelecommunications. The discussions covered:a) the privatization models of INMARSAT andEUTELSAT already put into practice,b) the privatization developments withinINTELSAT and INTERSPUTNIK, andc) the indirect impacts of privatizations onEUMETSAT.In the cases of para, a) a separation has been madeof the governmental, sovereign, coordinative and controlfunctions from the operative business with a marketpotential. An operative company established undernational law (country of incorporation), participating inthe market activities with equal rights and without anyprivileges, is placed beside the reduced IGO. TheINMARSAT and EUTELSAT models are basically thesame, with INMARSAT having established anadditional holding company on top of the operativecompany. The remaining IGO has a special share in theholding company, entitling it to veto changes tospecified parts of the company’s memorandum (publicinterests/public service). With EUTELSAT, the IGOcontrols the operative company directly, without anyshare.In the cases of para, b)INTELSAT/INTERSPUTNIK, a new affiliatedcompany handling the operative business wasestablished, instead of introducing a partial IGOprivatization (New Skies NV, spin-off companyaccording to Dutch law and theINTERSPUTNIK/Lockheed Martin Coop. - LMI). Asfar as INTELSAT is concerned, privatization of thisIGO is still being considered, although it is ratherdifficult to take into account the interests of thedeveloping countries. INTERSPUTNIK has respondedto the market changes by providing signatories in theProtocol and Operating Agreement, and a state maynominate several of these signatories. Any duly licensedtelecommunications entity can be appointed signatory.The example of EUMETSAT in para, c) finallyshows a concentration on the public service function.EUTELSAT manifests itself in empowering industry ofthe nascent market for meteorological products bycontracting, outsourcing and extensive use ofconsultancy.In all analysed cases there was the remaining needto define rules and mechanisms to be able to makesensible, objective trade-offs and choices, first andforemost between public service functions and otheruses.As a result of the discussion the following findingswere made:

152 THE ROLE OF INTERNATIONAL ORGANIZATIONS IN PRIVATIZATIONAND COMMERCIAL USE OF OUTER SPACESpace Business is increasingly affected by thegrowing International Economic Law with openborderlines of public and private law and even numeroussoft laws and code of conducts. An other dynamicdevelopment in space business is the privatization ofIGO’s. In this environment it is important that there is amechanism for giving effect to the basic principles ofOuter Space Law (such as non-discriminatory access toservices/peaceful purposes/service to all geographicalareas). According to the rules of subsidiarity, the UN(COPUOS) is to consider the codification facts whichare not covered or no longer covered by the nationallegislative bodies and the IGO’s. A special pending issuein this connection is the maintained guarantee ofcontinued services for developing countries andcountries with a minor industrial infrastructure. Afurther point is the limitation of resources in OuterSpace in view of the enormous increase of Outer SpaceBusiness. The economic use of Outer Space resources isa subject of public interest. UN (COPUOS) should reactin a flexible and timely manner. One additional modelcould be to formulate similar public soft laws orrecommendations to be adopted by the relevantcommunity.suggested to provide COPUOS with its ownadministrative staff in order to be able to handle thenew tasks. A concentration of the tasks in accordancewith the space registration agreement at the UN couldhelp to overcome identified deficits. ITU as a technicalforum will not be the ideal organization to deal with thetask. The need to discuss a reform of the RegistrationTreaty was identified.Parallel to the dynamic development taking place inthe private sector the United Nations should take careof all relevant quasi (non)-governmental organizationsand non-profit establishments with competence inspecial areas of public interest (e.g. co-operation ofIMO with INMARSAT). There is the need for thedefinition of "public service". The necessary efforts ofvarious organizations (e.g. UNIDROIT) to achieve anunification of legislation should be recognised. Specialattention should be paid to the various aspects ofliability and security.The privatization scheme of INMARSAT andEUTELSAT is of a model character and takes intoaccount in a suitable way the dual and parallel aspectsof public services and commercial business in someimportant areas of space business. In restructuring theorganization of an IGO, however, care must be taken toclarify when and where the sovereignty rights, which hadbeen transferred to the IGO, are to be shifted and towhich extent the countries involved will continue toexercise jurisdiction and control in the space business(esp. in cases where the former IGO acceptedresponsibilities under the Space Treaties). Therefore thetermination of an IGO should be subject to a formaldecision, preferably an intergovernmental conference.The workshop recognised the positive role of statesas a single point of contact in questions of jurisdictionand control. The compatibility of new developments(growing influence of private, international actors inspace business) with the principles of the Outer SpaceTreaties depends on the good will of the states. The roleof the UN as a co-ordinator should be strengthened. It is

EXPANDING GLOBAL NAVIGATIONS E S S IO N 6Chair: Mr. David Sagar (Inm arsat)Coordinator/Rapporteur: Mr. Marco Ferrazzani (European SpaceAgency/Italy)

SESSION SIXExpanding Global Navigation ServicesDiscussion PaperPaul B. LarsenGeorgetown University Law CenterOnly the author is responsible fo r the contents o f this paper. Heexpresses his appreciation fo r the helpful comments received fromM r. David Sager. The paper may be printed and duplicated fo rth e UNISPACE II I Conference. Copyright retained by the author.IntroductionThe world is becoming GNSS-dependant in the sameway that it has become Internet dependent. GNSS isboth a positioning and a navigation service. It providesaccurate navigation service for the different modes oftransportation, including aviation, water, road, railroadand navigation in outer space. It has the potential tobecome the sole tool for navigation. GNSS providespositioning for land surveys, agriculture, fisheries,satellite communications, and many other uses, inaddition to transportation. GNSS service includesseveral military purposes.The GNSS provider determines the amount ofprecision that will be accorded in its basic service to theuser. The user can obtain augmented precision fromother sources. Basic GNSS services are beingaugmented extensively from both land and space.GNSS is a rapidly developing issue which did notexist at the time of previous UNISPACE conferences.Now there are lively discussions about GNSS aroundthe world. The subject has such magnitude andpotential that the United Nations can consider the issueand its legal implications at UNISPACE III. Amongseveral topics the conference will “examine present andplanned systems for provision of navigation services bysatellite and consider matters involving universalaccess, continuity of services, implications forinternational ownership, international co-operation andissues of system standardization.”1This document will focus on GNSS legal issues. Itonly describes GNSS technology to the extent necessaryto illustrate legal issues.Existing GNSS Systems.Two independent Global GNSS systems are operationaland currently provide services. They are the U.S.Global Positioning System (GPS) and the RussianFederation’s GLONASS.2 The United States, and manyother countries individually and jointly are augmentingthe GPS to make it more accurate. For examplemaritime navigation solely by GPS currently is possibleby augmented GPS. The United States has agreed tomake GPS available for international navigation andpositioning and Russia has made a similar agreementregarding GLONASS. Such availability “is notintended in any way to limit the rights of a state tocontrol the operation of aircraft and enforce safetyregulations within its sovereign airspace.”31 N. Jasentuliyana, President, International Institute of SpaceLaw, letter of 4 January, 19992 1996 Federal Radionavigation Plan (hereinafter cited as FRP)at 1-9 and 33-243 14 October, 1994, letter from U.S. Federal AviationAdministrator to ICAO Council President Similar letter fromRussia

156 EXPANDING GLOBAL NAVIGATION SERVICESPlanned GNSS SystemsThe European Union and the European Space Agencyhave proposed to create a global navigation satellitesystem called Galileo which would be interoperablewith GPS and would have the same reference system asGPS.4 Private satellite systems capable of providingpositioning and navigation service also are beingconsidered.5 Mobile satellite operators such as ICOGlobal Communications and Iridium could addnavigation and positioning capabilities to theircommunication satellites. Furthermore, several GNSSaugmentation systems are close to operability. TheWide Area Augmentation System (WAAS) will makepossible Category 1 and Category II flights byairplanes. A different augmentation, the Local AreaAugmentation Service (LAAS), will make it possible toland airplanes by satellite navigation (Category IIIflights).6 A European augmentation system, EGNOS, isclose to completion. Augmentation systems are beingplanned in other countries, for example Japan, as well.7GNSS Investment and TechnologyIn legal discussions GNSS can no longer be viewed asjust a navigation and positioning technology. It hasbecome a world-wide economic and social issue. Userswant access to GNSS. Manufacturers want to exploitthe market. Nations want the economic advantage ofhaving a GNSS industry. The stakes are high. The U.S.National Academy of Public Administration8 forecastin 1995 that by the year 2005 the GNSS world marketwould reach $31 billion, 55% of which would beoutside of the United States. In 1999 the EuropeanCommission made an even higher estimate,approximately $40 billion by the year 2005.9 Thelargest growth will occur in land transportation,10 faroutstripping the demand for GNSS in the aviation andmaritime areas. The United States currently dominatesthe GNSS market.11 Understandably industries outsidethe United States also would like to profit from GNSSand wish to challenge the U.S. market domination.Furthermore, labor interests would like to expandemployment into the GNSS industry. The 1996 U.S.Presidential Decision Document (PDD) estimated thatthe GPS industry would create 100,000jobs within fiveyears.12 The EU estimates that 100,000 jobs would becreated by the year 2008, if the proposed Galileoproject goes forward.13 As U.S. Vice President Gorehas said: GNSS “has become an engine of economicgrowth and efficiency as businesses and consumers arecontinually developing new and creative applications ofthe system.”14 GNSS development is aided by pricereduction of GNSS receivers which now are massproduced, so that price is not the barrier that it oncewas: a basic receiver can be purchased for $99,although sophisticated receivers are more expensive.Finally, the technology of the GNSS satellites isimproving as second and third generation GNSSsatellites and receivers are entering the market place.4 European Commission, Galileo, Involving Europe in a NewGeneration of Satellite Navigation Services, 9 February, 1999(hereinafter cited as Galileo)5See Boeing’s application to U.S. Federal CommunicationCommission for radio frequency to provide satellite navigationand positioning service, 1999.6FRP supra n. 2 at 3-11 to 13.7Larsen, GNSS Augmentation: Legal Issues, 40 Coll. on theLaw of Outer Space8 The Global Positioning System: Charting the Future, NationalAcademy of Public Administration, National Research Council,1995, at XXVI9Galileo, supra n 4, at iv.10 Galileo, supra n 4, at iv.11 Galileo supra n. 4, at 212 March 29, 1996, U.S. Presidential Decision Document13 Galileo, supra n. 4, at 4.14 March 30, 1998, Gore Statement

EXPANDING GLOBAL NAVIGATION SERVICESInstitutions that have Legal Authorityover GNSSInternational InstitutionsThe United NationsThe UN is the only institution that has a specialcomprehensive institutional role to consider not onlyspecific GNSS uses but all GNSS functions.15 No otherorganization can meet the needs of every category ofuser. The UN Committee for Peaceful Uses of OuterSpace, within its authority over space activities, hasproduced several international treaties that are relevantto GNSS operation. They are:The 1967 Treaty on Principles Governing theActivities of States in the Exploration and use ofOuter Space, including the Moon and OtherCelestial Bodies;16The 1968 Agreement on Rescue of Astronauts, theReturn of Astronauts and of Objects Launched intoOuter Space;17The 1971 Convention on International Liability forDamage caused by Space Objects;18The 1974 Convention on Registration of ObjectsLaunched Into Outer Space.1915 Larsen, Positing Satellites: Current Institutional Issues, 37Coll. on the Law of Outer Space.161967 Treaty on Principles Governing the Activities of Statesin the Exploration and Use of Outer Space, including the Moonand Other Celestial Bodies, International Instruments of theUnited Nations, at 288l7Id. at 29118 Id. at 29319Idat297The 1979 Agreement Governing the Activities ofStates on the Moon and Other Celestial Bodies20(which though relevant, has not achieved theuniversal acceptance of the first four treaties).The Committee has authored and continues toauthor United Nations General Assembly Resolutionson outer space matters that impact GNSS. For examplethe Committee is working on a legal instrument onspace debris. Furthermore three times the Committeehas sponsored comprehensive international conferenceson space issues, this time examining GNSS.International Civil Aviation Organization(ICAO)157The Convention on International Civil Aviation(Chicago Convention), Article 37,21 gives ICAO theimportant function of adopting international standardsand recommended practices (SARPS) and proceduresfor air navigation (PANS). In accordance with Article37, ICAO has developed and continues to developSARPS for GNSS. On the basis of this authority,ICAO currently is assuming even wider legal authorityover GNSS. The 1998 ICAO Assembly at its 32ndSession revised the Number 1 item on the ICAO LegalCommittee’s active agenda to include consideration ofa legal framework for GNSS.22 The ICAO Council laterexplained that analysis of legal aspects would includecommunications, institutions, liability and relatedissues.23 The ICAO Assembly affirmed the ICAOCouncil’s decision to establish the Study Group onLegal Aspects of CNS/ATM Systems, and instructedthe Council to “consider the elaboration of anappropriate long-term framework to govern theoperation of GNSS systems, including consideration ofan international Convention for this purpose, and topresent proposals for such a framework in time for their20 Id. at 299211944 Convention on International Civil Aviation, (ChicagoConvention) ICAO Doc. 890022ICAO Assembly Resolution A32-2023 ICAO Doc. C-CW/11026

158 EXPANDING GLOBAL NAVIGATION SERVICESconsideration by the next ordinary Session of theAssembly.”24The International Maritime Organization(IMO) and INMARSATThe International Maritime Organization, as thecounterpart to ICAO, adopts and continuously reviewsthe navigation rules and procedures for GNSS maritimenavigation. For example, IMO requires GNSSequipment on board ships in international carriagebeginning with the year 2000.25The objects of the privatized Inmarsat company,Inmarsat Limited, include the provision and support ofglobal, regional and domestic satellite services,including radiodetermination and radionavigation.International Telecommunication Union (ITU)GNSS satellites communicate with GNSS receivers byuse of radiofrequencies. GNSS signals are rather weak.Radio interference can be a problem. Radio frequenciesused by GPS, GLONASS, and proposed mobilesatellite systems (MSS) are all close to each, otheralthough so far interference does not appear to havebeen a problem. It is a cause of future concern,however. Augmentation of GPS also requires use ofradio frequencies. GNSS use of several radiofrequencies cause manufacturers to build more complexreceivers that can receive multiple frequencies, thusincreasing the price of multiple receivers.Radio frequencies are coordinated within the ITUat World Radiocommunication Conferences (WRC). Inthe year 2000 WRC the ITU will specially focus onradio spectrum allocation to GNSS operations.Unfortunately, the GNSS providers and users have tocompete in ITU with other users of the radio frequencyspectrum. Their main concern is that the mobile satellitesystem (MSS) operators would like to use or share the24 See discussion of maritime standardization at IV below23 Galileo supra n. 4 , at 16; see discussion of standardization atIV belowuse of the GNSS radio spectrum, thus endangering thereliability of the GNSS signals.Only Governments have voting rights in ITU so allGNSS interests, through their governmentrepresentatives to the WRC, are seeking to join forcesto protect the GNSS radio spectrum at the year 2000WRC. An example of such joinder of forces is thecoordination taking place among Europeans in theE uropean C o n ference o f P o sta l andTelecommunications Administrations (CEPT) . Thereis a natural alliance between the Europeans in CEPTwith other states that are concerned with preservingradio frequencies for GNSS. This joinder of interestsincludes the United States which also is anxious topreserve and protect its current GPS frequencies andwill need additional frequencies to meet future needs.26GLONASS has a natural concurrence of interest withthe Europeans if GLONASS and Galileo are joined insome form.European Union (EU), the European SpaceAgency (ESA)and EUROCONTROLIn 1994 the European Commission, EUROCONTROLand the European Space Agency (ESA) agreed on theEuropean Geostationary Navigation Overlay System(EGNOS).27 EGNOS is a multimodal satelliteaugmentation system. It is scheduled to becomeoperational in the year 2002. Furthermore, theEuropean Commission and ESA have proposed anindependent GNSS system called Galileo to beoperational in the year 2008. Galileo would costapproximately $2 billion. The Commission proposedthat the “the system should be global from the start inorder to allow full development of the global market.”28Galileo may be joined with GLONASS if the partiescan reach a satisfactory agreement. In May and June,1999 the ESA governing body decided to proceed with26Galileo supra n. 4, at 2327 Id. at 12. See Larsen, GNSS Augmentation: Legal Issues, 40Coll. on the Law of Outer Space28Id. at 12. See Larsen, GNSS Augmentation: Legal Issues, 40Coll. on the Law of Outer Space

EXPANDING GLOBAL NAVIGATION SERVICES 159the Galileo project, and the EU Council of (Transport)Ministers similarly approved Galileo funding. The EUCouncil of Ministers will make the final decision.29 Intime EGNOS would transit into and becomeincorporated into Galileo.National InstitutionsRussiaRussia’s GLONASS system is changing On February18, 1999.30 President Yeltsin decreed that the Russianmilitary would share control over GLONASS withcivilians. The decree creates a joint military-civilianboard to operate GLONASS. Russia is open to thepossibility that the GLONASS may become the basisfor a joint Russian and European Global NavigationSatellite System. Russia would benefit from Europeanfinancial contributions to maintain the GLONASSsystem. President Yeltsin’s decree also opened the doorfor foreign private companies to invest in GLONASS.Independent of the GLONASS satellites, theGLONASS radio frequencies are very valuable. Thepossibility exists that GLONASS could disappear ifoutside funding is not provided. By a financial joinderwith the Europeans GLONASS would become subjectto a joint control.United StatesThere continues to be interest in the institutionaladministration of the U.S. GPS; the European Unionhas recently tried very hard to obtain shared control andmanagement over GPS.31 It is interesting to observe thatthere has been U.S. study of options for shared controland management of GPS. In 1995 the Rand CriticalTechnologies Institute’s study32 identified six optionsfor management and operation; they were:• GPS could continue as a U.S. military system.• GPS could become jointly or exclusivelygoverned by one or more U.S. civilianagencies.• GPS could be privatized and managed by aU.S. entity• GPS could be privatized and internationallymanaged.• GPS could be augm ented bycivil/private/foreign elements (based in spaceor on the earth’s surface)• GPS could gradually be displaced by privatespace systems or other technologiesRand did not consider these options to be mutuallyexclusive. For example a U.S. military GPS could beaugmented by elements from foreign countries, or by aninternational organization. Likewise, a private GPScould be part of an “international venture in relatedspace-based communication services.” Being able tocharge for services would be essential to any privateGPS operation.33 However, the Rand study could notquite visualize how a private operation could collectcharges from non-governmental users except throughsome kind of tax. Thus continuation of the operation ofGPS by the U.S. military appeared to Rand as the mostdependable and feasible.3429 Space News, May 24,1999, at 1. SATELLITE TODAY, 21June, 1999. The EU Commission hopes that EU members willonly have to provide 50% of the funding and that the privatesector will provide the remainder. While the EU decision doesnot constitute final approval of Galileo, it is a step in thatdirection30 Space News, March 18, 1999, at 431 Galileo supra n. 4, at 5. The United States did not agree toshare control of GPS32 The Global Positioning System: Assessing National Policies,1995 Rand Critical Technologies Institute, at 163-16433 Id. at 16434 Id. at 166

160 EXPANDING GLOBAL NAVIGATION SERVICESMilitaryThe military designed and created the GPS. Themilitary continues to operate and maintain the GPS andto replace GPS satellites as necessary. The GPS serviceis available continuously to all military and civilianusers. However, the more accurate GPS, so-calledPrecise Positioning Service (PPS) is only available tomilitary users. The standard GPS ( SPS) is available toall users. This is called selective availability (SA).35GPS is used not only by the U.S. military but also byforeign military in NATO. NATO participants areexpected to continue to use GPS. To do otherwise couldinterfere with coordination within NATO. The militaryhas become more dependent on GPS than the civiliansector has. This has resulted in establishment of twonew civilian radio signals effectively separating thecivilian and the military GPS users.36CivilianCivilian GPS uses are becoming more extensivethan military GPS uses. The increased civilian pressurefor adequate GPS service caused the U.S. President toissue the 1996 Presidential Decision Document to sortout GPS responsibilities between DOD and DOT.When civilians, such as the maritime users, began touse GPS as their sole navigation system, it becamemore difficult for the military to discontinue GPSsignals for testing or other purposes, because civilianusers need a navigation system that is virtuallyavailable without interruption. (Available 99.7% of thetime for maritime users. ICAO Annex 10 requires thataviation navigation systems be available 99.97% of thetime).37The Presidential Decision Document selected theDepartment of Transportation to be responsible for all35 See discussion of Selective Availability at V below.civilian GPS matters. A permanent inter-agency GPSExecutive Board (IGEB), jointly chaired by DOT andDOD, coordinates GPS. Serving on the Board are DOTand DOD executives, including the joint Chiefs ofStaff, as well as the Department of Commerce, Interior,Agriculture and other agencies.Many events regarding GPS, having legal effects,are taking place currently in the United States. Forexample, the U.S. Coast Guard and the FAA areissuing Notices to Mariners and to Airmen regardingDOD’s testing (that is, jamming) of the GPS signals.These notices also are sent to internationalorganizations and to other countries. However, it maybe difficult to locate some users, for example farmersand recreational users, to give them adequate notice,thus raising legal issues of reasonable forseeability anddue care. The FAA and the Coast Guard are involvedin other regulation of GPS. The Federal RailroadAdministration (FRA) regulates use of GPS signals toseparate trains. The FCC is examining public safetyradio regulations. In 1998 the White House issueddecisions regarding the new second and third radiofrequencies. The Congress adopted legislation thatfunds GPS and its augmentation thus influencing theavailability of GPS. Many other U.S. Governmentactivities that affect civilian uses are taking place.International Coordination of GNSSTechnical Coordination among GNSSServicesBoth the U.S. GPS and GLONASS can be usedconsistently by the same user. GNSS receivers are builtto receive and use both systems. It is the intention of theEuropeans that Galileo be designed for use consistentwith both GPS and GLONASS.38 Consequently, allGNSS services are and will be interoperable.36 Id. On 25 January, U.S. Vice President Gore announced thatthe United States would add two new civilian frequencies toGPS37 Navigation signals should be available 99.7% of the time formaritime users. ICAO Annex 10 requires that aviationnavigation systems should be available 99.97% of the time38Galileo, supra n. 4, at v

EXPANDING GLOBAL NAVIGATION SERVICES 161Coordination and Standardization ofGlobal Navigation and PositioningServicesBoth GPS and GLONASS are dual use services. Thatis, they serve both military and civilian users.Consequently, the military and the civilian authoritiesconstantly have to coordinate. Furthermore, the civilianGNSS users have to coordinate and establish GNSSstandards and recommended practices in order that themany categories of users know the exact nature of thenavigation and positioning service as it applies to thisparticular category. There needs to be standardizationwithin each category of user such as aviation andmaritime users; and also among the various categoriesof users. In regard to augmented GNSS there probablyalso needs to be more coordination and possiblyprovision of augmented GNSS in the countries whichhave not made plans for augmented service to establishuniform world-wide service.39AviationICAO is authorized by the 1944 Chicago Convention tooversee international civil aviation. Article 37 of theConvention establishes ICAO as the competent body toestablish international minimum Standards andRecommended Practices for navigation of aircraft byGPS. ICAO is the major institution for discussion ofGNSS relating to air navigation, communication,surveillance, and air traffic management. ICAO also isthe forum for discussion of legal issues relating toGNSS aviation uses. ICAO actively establishes GNSSstandards and has approved standards andrecommended practices.40 One commentator states theimportance of standardization of integrity data betweenadjacent service providers and of satellite-basedaugmentation systems, though suggesting that suchstandardization will probably best take place inimpartial forum outside of ICAO 4139 George V. Kinal, Satellite Navigation Developments atInmarsat, Paper presented to 1997 Gothenburg Conference, at 940 See ICAO discussion at III above4IKinal, supra n. 39, at 9MaritimeThe International Maritime Organization (IMO) is themaritime counterpart to ICAO. Like ICAO itestablishes international navigation standards. IMOResolution A.815 (19) on the WorldwideRadionavigation System was adopted on 23 November,1995; and IMO Resolution A.860 (2) establishingmaritime policy for future GNSS systems, was adoptedon 27 November 1997. IMO standards require GNSSon board ships beginning in the year 2000.IMO has a long interest in space communications,and it took the initiatives to establish the InternationalMaritime Satellite Organization (Inmarsat) in order toprovide satellite communications for shippingworldwide. Inmarsat’s satellites provide navigationdifferential correction for GNSS through navigationequipment on Inmarsat-3 satellites. “The Inmarsat-3navigation payloads will be used in both the U.S. WideArea Augmentation System (WAAS) and the similarEuropean Geostationary Overlay System. WAAS willnot provide integrity data for the GLONASS satellite,but EGNOS specifications do provide for GLONASSintegrity data. Although each service provider hasdifferent design criteria and service intentions, it isabsolutely critical that all such systems should beinteroperable and that user receivers will functionequally well in any one of the satellite-basedaugmentation systems.”42Other Coordination and StandardizationThere has not been significant standardization of thesurface transportation uses although the greatest futureGNSS growth will be in automobile navigation. Neitherhas there been significant standardization in land surveyand agricultural or other uses of GNSS ,43 There is needfor coordination of standards being established for thevarious modes of users. The need for unified regulatorycoordination among the standard-setting organizationsis recognized by the European Union. The Galileo42 Id. at 243Galileo, supra n. 4 at Annex IV (b)

162report states: “Consideration need to be given towhether there is a need... to set up a European GNSSRegulatory Co-ordinator” to consider standardizationfor all users.44 The Galileo report continues: “Thestandard developed could then be incorporated intoregulation by the appropriate bodies (e.g. ICAO, IMO,ISO, CENELEC, IEC, EUROCONTROL and ETSI).The Coordinator “would have an important role topromote the introduction of harmonized regulatoryperformance requirements across transport modes andbetween user groups.”43 Therefore the Galileo reportproposes establishment of “ a GNSS RegulatoryCo-ordinator to develop mandatory standards to beimplemented by all Member States to satisfy theobjectives of the Trans-European Positioning andNavigation Network.”46Within individual governments efforts are made atcoordinating GNSS standardization among thecategories of civilian GNSS users. For example, withinthe U.S. Department of Transportation, the Secretary ofTransportation seeks to coordinate and standardize thevarying GNSS uses by the aviation, maritime, highway,rail, and other civilian transportation uses. While themodal GNSS uses are divided into the FAA foraviation, the U.S. Coast Guard for maritime, theFederal Highway Administration for highways, theFederal Railroad Administration for trains and yetanother separate administration for transportation ofhazardous materials, all these administrations are underthe supervision of the Secretary of Transportation. Itbecomes the Secretary’s responsibility to seektransportation system-wide coordination andstandardization. The President also has delegated to theSecretary of Transportation to coordinate civilianGNSS use by non-transportation users.47 Thus it is theSecretary’s function to provide overall coordinationamong all the civilian users.EXPANDING GLOBAL NAVIGATION SERVICESOther governments will have similargovernment-wide efforts at coordinating GNSS.Other Legal IssuesGNSS FinancingGLONASS service is free of charge. U.S. GPS is alsofree and the United States intends to continue to providethe service free of charge. The U.S. Government hasfound that it would be difficult to assess direct usercharges. The cost of GPS services is financed eitherthrough general tax revenues (Department of Defenseand U.S. Coast Guard costs) or through airtransportation trust funds which are supported by a fueltax or value added tax.48 The Galileo service wouldinitially also be publicly funded. The possibility existsof self-financing at a later stage through a publicprivate partnership (PPP).49 As long as the U.S. GPS isfree, it will not be possible to charge for correspondingGalileo service. However, the EU envisions a charge forservice that requires a high level of guaranteedaccuracy, availability and integrity. Furthermore, ageneral tax on GNSS receivers is being considered forGalileo.50 The Europeans have experience withadministration of a charge for radio and televisionservices. (There is no corresponding experience in theUnited States and such a flat charge may not work inthe United States). Such a charge would cover allGNSS services including basic navigation service.51The tax would include the cost of maintaining Galileoafter initial establishment. Finally, a special charge forguaranteed, highly accurate and dependable GNSS48 1996 FRP, supra n. 2, at 1-2744 Id. at 2345 Id. at 2444 Id. at 2547 Supra n. 1249 Galileo, supra n. 4, at vi.50 Id at 16. The Europeans have experience with administrationof a charge for radio and television services. There is nocorresponding experience in the United States and such acharge may not work there51 Id.

EXPANDING GLOBAL NAVIGATION SERVICESprobably would require encryption in order to limitaccess.52Universal Access to GNSSThe Chicago Convention, Art 15, states the principlethat air navigation facilities provided for public useshall be accessible under “like uniform conditions” foraircraft of all contracting states. The treaty principle ofnon-discrimination has been upheld by U.S. nationalcourts.33 The principle of non-discriminatory access toair navigation assistance being well established bothinternationally and nationally, there appears to be noobjection to non-discriminatory access to GNSS. Aprecedent exists in the UNGA Resolution on remotesensing satellites which guarantees access to data onnon-discriminatory terms. The principle ofnon-discriminatory access (including access toaugmented GPS services) under uniform conditions wasadopted in the ICAO Charter on Rights and Obligationsof States Relating to GNSS Services.54A right of universal access would be compatiblewith a charge for services as long as all GNSS usersare charged uniformly. The UNGA Resolution onRemote Sensing is a precedent.55 While it provides fornon-discriminatory access it does not preclude remotesensing services from charging for their services.Selective AvailabilitySelective Availability (SA) of the GPS service deservesmention because GPS will change in the future whenSA is eliminated. GPS currently is available at twolevels of service: the Standard Positioning Service52 Galileo, supra n. 4, at 22“ Aerolineas Venezulana v. Dade Country Airport, 196054 ICAO Doc. A32-WP/24, Appendix A. See discussion ofCharter on Rights and Obligations of States Relating to GNSSServices below at VII55 Principles Relating to Remote Sensing of the Earth fromOuter Space, International Instruments of the United Nations, at305163(SPS) and the Precise Positioning Service (PPS). TheSPS is available world-wide free of user charges. SPSprovides positioning accuracy of 100 metershorizontally and 156 meters vertically and time transferaccuracy to Coordinated Universal Time within 340nanoseconds. The more accurate PPS is available toU.S. government and to other governments (for civilianand military uses) through special agreement with theDepartment of Defense. It provides the most accuratedirect positioning, velocity, and timing informationcontinuously available from the basic GPS. It providespredictable positioning accuracy of at least 2 2 metershorizontally and 27.7 meters vertically and time transferaccuracy to Coordinated Universal Time within 200nanoseconds.56 The purpose of this difference in qualityof service is to provide an advantage to the militaryusers and to deny such advantage to others. SAevidences the military origin of GPS.The end of SA was announced in the 1996 U.S.Presidential Decision Document (PDD) stating that theSA will be terminated and that the more accurate GPSservice will become available to the civilians users assoon as military technology enables the military toobtain the equivalent of the SA advantage in differenttechnical ways. For that purpose, each year beginningin the year 2000, the President will evaluate whetherSA can be eliminated. The PDD decided that SA will beturned off at the latest in the year 2006.57 Related to thePDD, U.S. Vice President Gore announced on 30March, 1998 that a second civilian signal will beprovided by GPS. The Vice President announced thatthe United States will provide the second civilianfrequency by the year 2005. The new signal will bebuilt into the next generation of GPS replacementsatellites (Block IIF satellites). Vice President Gorefurther announced: “GPS civil signals are, and willcontinue to be, provided free of charge to consumers,businesses and scientists around the world.” Yet a thirdsignal dedicated to safety-of-life will also be madeavailable by the year 2005,58 This means that “civilianssoon will have access to the same type of capability [as56 SPS accuracy is increased greatly by GNSS augmentation57 Supra n. 1258 Supra n. 36

164military users]”59 Augmentation still will be necessaryfor landing airplanes and other navigation andpositioning activities that require great precision.However, removal of SA will have effect on GNSSaugmentation.60GLONASS does not have a Selective Availabilityfeature. The civilian users receive the same level ofservice as the military.International Ownership of GNSS ServicesPrecedent for jointly-provided international navigationservices exist in ICAO. The Chicago Convention,Article 77, provides: “Nothing in this Convention shallprevent two or more contracting States fromconstituting joint air transport operating organizationsor international operating agencies.” Furthermore, theChicago Convention, Article 71, permits the ICAOCouncil to provide air navigation facilities “for the safe,regular, efficient and economical operation orinternational air services.” Under this provision theICAO Council in 1947 accepted responsibilities formaintaining the North Atlantic Ocean Weather Stations.With this precedent there appears to be no legalobstacles for international ownership and operation ofGNSS. EUROCONTROL is an excellent example ofinternational operation of air traffic control. Indeed theGalileo project under which the EU and ESA jointlywould operate a GNSS facility indicates theappropriateness of international ownership andoperation of GNSS. Finally, the 1998 ICAO Charterstated that States had the right to establishjointly-owned GNSS services.61 So the principle is wellestablished.Sole UseAn important current discussion is whether GNSS willbecome the sole navigation and positioning tool of thefuture. Large economic resources would be saved if allEXPANDING GLOBAL NAVIGATION SERVICEScurrent navigation and positioning services, for exampleland-based air navigation technology, could bediscarded and countries could instead depend solely onGNSS technology. There is safety in the existence andavailability of several GNSS systems, each of whichcan provide back-up in case another GNSS system goesdown. There are, on the other hand, conditions such assevere solar storms62 (burst of energy from the sun cantrigger phantom signals) or meteorite showers whichwould affect all GNSS satellites. Issues of intentionalor unintentional signal jamming and the need of theservice provider to disrupt service for the purpose oftesting signals also raise questions whether or when soleuse of GNSS will be possible. Nevertheless, somemaritime users have moved to sole GNSS use (in theUnited States), and some airlines (Continental Airlines)now navigate over oceans solely by use of GNSS.GNSS LiabilitySovereign Immunity of States fromLiability for GNSS operationsLiability of the GPS operator for negligent commissionsor omissions is a major unresolved legal issue. BecauseU.S. GPS is the major operating GNSS service, it isimportant to know the applicable law for privatedamage claims brought by non-U.S. nationals and byU.S. nationals in U.S. courts. The Rand studyexpresses the view that GPS is much like governmentnavigation and air traffic control assistance. Once anaid is established, the government has a duty tomaintain it and is liable for failure to do so.63 The U.S.government provides notice to the public that GPSservice is available and is reliable. Notices are issued inthe FRP, the Federal Register, FAA Notices to Airmen,Coast Guard notices to Mariners, and through theCoast Guard GPS Information Center.64 The argumentfor liability for U.S. GPS service is supported by a59 Joint DOD/DOT news statement, 30 March, 199860Kinal, supra n. 39, at 961 ICAO Doc. A32-WP/24. Appendix A, June 6,199862 Paul Recer, Sun storms may leave us in the dark, SeattlePost-Intelligencer, June 1, 1999 at 163Rand supra n. 32 at 19264 Id.

EXPANDING GLOBAL NAVIGATION SERVICES 165famous U.S. Supreme Court case called Indian Towingv. U.S.65 in which a ship ran aground owing to thefailure of a light in a lighthouse. The U.S. governmentconceded that it was not entitled to governmentalimmunity under the U.S. Federal Torts Claims Act(FTCA)66 and the Court thus found the governmentalimmunity had been waived by the Act. A number of airtraffic control cases support this point of view.67On the other hand Government liability wasrecently restricted by the US Supreme Court in a casecalled Smith v. United States.68 The Supreme Courtheld the FTCA does not apply to governmentalnegligent acts and omissions outside U.S. territory.According to the Smith case outer space is outside U.S.territory, as defined by the FTCA, and thus theSupreme Court is of the view that the FTCA does notpermit the government to be sued for outer spaceactivities such as GNSS. Government immunityprevails.The sovereign immunity of other sovereigngovernments is governed by their laws. Several statesdo not recognize the notion of sovereign immunity. Thesovereign immunity of intergovernmental institutions isgoverned by international laws.International Liability RegimeThe 1971 Convention on International Liability forDamage Caused by Space Objects makes the launchingstate liable for loss of life, injury, damage to propertyof States or their natural or juridical persons. Thelaunching state is absolutely liable for damage causedon the Earth’s surface and in airspace; damage causedin outer space is based on a fault regime. Under theLiability Convention claims for compensation arepresented by States, not by individuals, that is, theConvention does not permit private citizens to bringclaims against their own government. However, majorspace powers interpret the Convention to the effect thatit does not apply to liability for indirect damages.GNSS damages may be considered to be indirectdamage.69Future Liability RegimesIn principle GNSS service which is provided for acharge and which is guaranteed to be of a certainquality “could be made more attractive if liability coverwas provided for the services subscribers receive.”70GNSS services would thus become more marketable.Liability would be in the nature of insurance justifyinggreater reliance on the GNSS services.71Amendment of the Liability Convention to allow forliability for GNSS type activities would place GPSnavigation on the same legal basis as currentgovernment liability for navigation and traffic control.As the Rand report points out,72 there is good reason forthe provider to assume liability for its GNSSnegligence. Potential liability for negligence is a safetyincentive.Work is in progress in ICAO73 on a liability regimewhich would make GNSS providers liable for negligentGNSS services affecting aviation air transport. If sucha specialized liability regime is adopted it could resultin discrimination among GNSS users. Whereas GNSSactivities in aviation would be subject to liability,similar activities in all the other GNSS services wouldnot result in liability.65Indian Towing v. United States, 350 U.S. 61 (1955)6628 U.S.C. 267167 Eastern Airlines v. Union Trust, 221 F.2 62. Aff 'd per curiamsub nom. United States v. Union Trust, 350 U.S. 905 (1955).Also see Dalehite v. United States, 346 U.S. 15 (1952)68 Smith v. United States, 507 U/S. 197 (1993) For discussionsee 63 J. Air L. & Com 517 (1998)69 See Spradling, The International Liability Ramifications ofthe U.S. Navstar Global Positioning System, 33 Coll. on theLaw of Outer Space70 Galileo, supra n. 4 at 1671 Id.72 Supra n. 6373 Supra n. 23

166Charter on Rights and Obligations ofStates relating to GNSS ServicesAs mentioned above,74 ICAO’s announced long termobjective is to create a framework to govern theoperation of GNSS. The ICAO Assembly instructed theICAO Council to have such a legal framework forpresentation to the next ICAO Assembly (in the year2001). As an interim measure, ICAO adopted aCharter on Rights and Obligations of States Relating toGNSS Services.73 The Charter is similar to the UNGAResolution establishing Principles Relating to RemoteSensing of the Earth from Outer Space, except that theCharter applies only to aviation.. The ICAO Charterprovides that: (1) Safety is the paramount purpose ofGNSS. (2) There shall be non-discriminatory access toGNSS (including augmented GNSS) under uniformconditions. (3) GNSS providers shall respect thesovereign rights of states to control air navigationwithin their states. (4) GNSS shall be standardized inaccordance with ICAO minimum standards andrecommended services. (5) States shall work togethertowards the greatest possible uniformity of GNSSservices. (6) User charges shall be non-discriminatory.(7) GNSS shall provide mutual assistance andcooperation to other states in planning andimplementing GNSS. (8) GNSS providers shall respectinterests of other states; and (9) the possibility ofjointly-provided GNSS shall not be inhibited. ICAO’sCharter on Rights and Obligations would only governaviation users because ICAO’s authority is limited toaviation.76The Charter approach is familiar territory for theUnited Nations Committee for Peaceful Uses of OuterSpace. As mentioned above, it is like the UNGAResolution on remote sensing which the UN Committeeadopted unanimously.While ICAO’s authority is limited to aviation, theauthority of the UN Committee encompasses all GNSSuses. Thus the UN Committee could very appropriatelyEXPANDING GLOBAL NAVIGATION SERVICESexamine not only the GNSS issues but also the possibleuniversal need for such Charter. A UN Charter onGNSS could have the same effect as the other UN legalinstruments on outer space: it would provide directionfor all GNSS.Multifaceted GNSSThe future law of GNSS could develop in either of twoways: a general legal regime for GNSS with specializedregimes for each use; or separate legal regimes for eachuse or mode. This is an important legal questionbecause the individual categories of users are beginningto establish rules for their singular use withoutconsideration for how those rules would affect otherusers.An example of a singular regime is the new ICAOCharter adopted at the 1998 Rio Conference andconfirmed by the 1998 ICAO Assembly.77 GNSS hasbeen approved as the primary means of air navigationin several parts of the world. The number of aircraftequipped with GNSS receivers is growing rapidly.While it is not yet possible to land airplanes withGNSS, the FAA is moving rapidly towards that goalwith its augmented GPS. GPS can become the primaryair navigation system by using WAAS and LAAS.Other countries are moving in the same direction. So itis not surprising that the aviation mode feels that GPSis for aviation and that the legal regime shouldprimarily be for airplanes. This results in ICAO’sambitions for a comprehensive GNSS legal regime anda specialized regime for liability described above.78The International Maritime Organization isestablishing international maritime navigationstandards. By use of augmented GPS, ships nownavigate solely by GPS. Law suits for negligentnavigation using GPS are beginning to appear in the74 Id.75 ICAO Doc A32-WP/24, Appendix A, supra n. 5476 Id.77Id.78 Larsen, GNSS International Aviation Issues, 41 Coll. on theLaw of Outer Space

EXPANDING GLOBAL NAVIGATION SERVICEScourts. Thus maritime users have a strong feeling thatGPS is for maritime navigation.79However, the largest growth in GPS use is in theautomotive area. There are about 650 Millionautomobiles in the world. By the year 2025 there willbe 1 billion cars, most of them with a GPS receiver. Sothis mode of transportation justifies attention asinternational laws and regulations are established forGNSS.80Railroad authorities, such as the U.S. FederalRailroad Administration, are very actively promotingthe use of GPS to monitor the location and speed oftrains in order to improve the safety and efficiency ofthe railroads. With wider availability of DGPSthroughout the United States, the beneficial effect ofGPS on this mode of transportation exists and justifiesattention.Availability of accurate land surveys through GPSis altering the surveying business, saving cost ofconstruction material and of labor, and producinggreater accuracy81. The surveying business depends onaccuracy, so that any aspect of GPS that will promotethat is of interest to the surveyors. Land surveyingaffects the law of conveyancing. GNSS -generated landsurveys generally are considered to be legally authenticand are legally acceptable to courts and other tribunals.Agriculture, the fishing industry, recreationinterests, telecommunications, outer space navigation,all have an active stake in GPS laws and regulations.They do not want to be left out or overshadowed by anyone mode. They want to be part of the community thatformulates these laws and regulations.79 See IMO Resolution A.815(19 on WorldwideRadionavigation System, adopted on 23 November 1995, andIMO Resolution A.860(20) on Maritime Policy for a FutureGlobal Navigation Satellite System (GNSS), adopted on 27November 199980 See Washington Post, supra n. 1081 Larsen, Use of Global Navigation Satellite System (GNSS)Evidence for Land Surveys: Legal Acceptability, 38 Coll. on theLaw of Outer Space167In conclusion, while each mode may view GNSS astheir issue, GNSS clearly is multifaceted. There isdanger of conflict between differing operating principlesfor GNSS. The larger GNSS constituency, rather thaneach modal constituency, could more effectively achievethe general principles. The same reasoning applies toliability. The maritime, rail, automotive users and thefarmers, fishermen and surveyors would certainly beunhappy to learn that they could not recover fornegligent GNSS, but that airlines could.Opportunity exists for a multi-functionalinternational body such the UN Committee for PeacefulUses of Outer Space to adopt multi-functional GNSSlegal principles. The alternative may be that we may areleft with piecemeal, conflicting GNSS legal principles.To support COPUOS multi-functional legal principles,coordination of legal principles and technical standardsamong the regulatory organizations (ICAO, IMO, andothers) is desirable.Commentary PaperJiefang HuangLegal Officer, ICAOI wish to offer my congratulations to Professor PaulLarsen for the excellent paper presented by him. I amparticularly thankful to him for his kind referencesthroughout the paper to ICAO’s work in this field.Indeed, in this decade, the International Civil AviationOrganization has dedicated a large portion of its workto the implementation of CNS/ATM systems, in whichGNSS is one of the key elements. Among other things,ICAO has organized two worldwide conferences forthis purpose. The first was the Tenth Air NavigationConference held at the headquarters of ICAO inMontreal, Canada, in September 1991, which wasattended by 85 States and 13 internationalorganizations; the second was the World-wideCNS/ATM Systems Implementation Conference held inRio de Janeiro, Brazil, from 11 to 15 May 1998, whichwas attended by 123 States, 27 international

168 EXPANDING GLOBAL NAVIGATION SERVICESorganizations and 32 industry delegations. ICAO giveshigh priority to this programme because the new systemhas special significance to aviation. While aviationusers may account for a minority of the users of GNSS,as compared with, for example, users in the sector ofautomobiles, aviation has unique characteristics whichdifferentiates it from other modes of transportation.Most of you present today, I believe, came to Vienna byair. I am sure that you have strong concerns if theaircraft you took received wrong, faulty or inaccuratenavigation signals. You would probably be lessconcerned if your car did not pick up the right signalswhen you drove to this conference centre. Clearly, inaviation, safety of aircraft, and more importantly,safety of the travelling public is at stake and the risksinvolved are of a totally different magnitude.Accordingly, consideration of multifunctional GNSSlegal principles in the U.N. forum should necessarilytake into account the special situation of aviation usersand should be closely coordinated with the current workof ICAO and perhaps other international organizationssuch as IMO.There is no doubt that GNSS is multifaceted. Itsmultiplicity is not only reflected in different modes ofusers, but also, in ICAO context, in that it is one of thecomponents of the Communications, NavigationSurveillance and Air Traffic Management. The legalissues would be considered, for example, together withlegal issues relating to communication satellites.Furthermore, the implementation of CNS/ATMsystems, including GNSS does not only involve legalmatters but also technical, financial and institutionalmatters. For instance, In addition to general legalprinciples, there are also specific technical standardsand recommended practices which need to be workedout and updated from time to time. These multifacetedtasks will not only require coordination among lawyers,but also coordination among other professions in oroutside the U.N. specialized agencies.the form of Resolution A32-19, it also adoptedResolution A32-20. This latter resolution called for theexpeditious follow-up of the recommendations of theRio Conference and the Panel, especially thoseconcerning institutional issues and questions of liability.It would not achieve the expeditious result if one triedto reinvent the wheel in a new forum without taking intoaccount the current arrangements in place.Concerning the question of liability relating toGNSS, this is one of the subjects currently beingstudied by ICAO. The vast majority of ICAOContracting States believe that an internationalconvention is necessary. This convention will address,among other things, the question of liability. It hasbeen pointed out that due to the multiplicity ofproviders of GNSS elements, there is a risk that victimsof a GNSS-induced accident would be obliged toengage in multiple and complex actions in severaljurisdictions in order to obtain what could turn out to beincomplete compensation. The establishment of newinternational rules under which liability issues could beresolved by a simple, clear and speedy procedure istherefore necessary. On the other hand, there is noconsensus in this respect. Views have been expressedthat the introduction of GNSS does not change theexisting liability system. The issues of liability werealready in existence even before space-based navigationaids were introduced. The ICAO Secretariat StudyGroup on Legal Aspects of CNS/ATM Systems iscurrently studying the issues of liability. The Groupwill hold another meeting in October of this year.To summarize, GNSS is multifaceted and amultifunctional approach is desirable. Such approachshould take into account the special situation ofaviation, and probably those of other sectors, withoutprejudice to the arrangements already in place. Closeinternational coordination is essential in order toachieve fruitful results.Close coordination is necessary because ICAO’swork has been under way for quite some time and hasachieved certain results, such as the Charter. There hasbeen a general consensus in ICAO that consideration ofthe legal aspects of GNSS should not delayimplementation of CNS/ATM systems. When the 32ndSession of the ICAO Assembly adopted the Charter in

EXPANDING GLOBAL NAVIGATION SERVICES 169Commentary PaperExpanding Global NavigationServices: Selected Legal IssuesB.D.K. HenakuAST Legal ConsultancyLeiden, The NetherlandsIntroductionSatellite navigation technology was introduced, appliedand tested almost thirty years ago. While it remained amilitary tutelage no political or legal issues were raised.Thanks to its introduction to the civilian arena82, forwhich we must all be grateful to the two superpowers(the United States of America and the then USSR), notonly has the system seen gigantic improvements but theproviders of the system, quite against their will, havebeen forced to give in to civilian wishes even in issuesbordering on national security and the defence of theirstates.Over the past fifteen years, the reaction of the civilcommunity have ranged from amazement at the offer bythe US and Russian Federation to freely provide theirmilitary signals for civilian use to that of curiosity andscepticism with reference to the stated accuracies andcapabilities. This healthy human attitude hasconsequently led to immense improvement of the USGPS and the Russian GLONASS systems and led to thedesign and deployment of augmentation systems likeWAAS, EGNOS and MSAS. While forcing themilitary to make concessions, often putting them in thedefensive, the civilian community has not been merelyinterested in improvement of the technical capabilitiesof the military system.Concerns regarding the accuracy, integrity andgeneral suitability to full civilian use has further82 The unfortunate crash of the Korean Air Flight 007 in 1984was the immediate cause for the promise to provideinternational civil aviation with this military capability, whichwas already in service but really complete.resulted in the latest proposal of the EuropeanCommunity and the European Space Agency to launcha more civilian oriented satellite navigation systemunder the current name of Galileo83.Law as usual has followed technical developments.In less than a decade, thanks mainly to the intense legaland political debates and work of the ICAO, a core oflegal principles has gradually been distilled, resulting inthe latest ICAO Charter on the Rights and Obligationsof States Relating to GNSS Services84. In additionextensive legal debate has been going in academicpublications and legal conferences on the legal issuesrelating to this new technology.That this Workshop has been convened as part ofUNISPACE III is a clear indication of the importanceof the technology, its impact on civilian life globallyand to global legal developments.This comment on Professor Larsen’s BackgroundPaper focuses on a few issues, most of which have beenexhaustively dealt with in my book on the subject85.Following this introduction I will comment on thefollowing issues:• International Ownership/InternationalCooperation• Interference• Access and Non-discrimination• Space segment liability• General Legal Principles on Space ApplicationI will begin each issue with a thesis. In theconclusion I shall propose that given the extremelyglobal and multifaceted nature of GNSS, UNCOPUOSshould, following UNISPACE, consider developinglegal principles applicable to GNSS and other spaceapplications.83 European Commission, “Involving Europe in a NewGeneration of Satellite Navigation Services” COM (1999) 54Final, 10 February 199984 ICAO Assembly Resolution A32-19.85 B.D.K. Henaku, “The Law on Global Air Navigation bySatellite: A Legal Analysis of the ICAO CNS/ATM System”,Issue 1 AST Law Monographs, Leiden 1998.

170 EXPANDING GLOBAL NAVIGATION SERVICESInternational Ownership/International Cooperation• While international ownership is desirable toguarantee a higher level o f user stateconfidence, GNSS system providers are, notleast because o f industrial politics, not likelyto open their systems up to internationalparticipation.Many experts who have been involved with or looked atthe EU’s Communication on Galileo would be surprisedand could flatly dismiss this statement. It is worthrecalling that the authors of the Galileo Communicationpropose various ways of cooperating with the RussianFederation, Japan, the US and other countries. In spiteof this willingness to cooperate, there must besomething in it for the European Space Industry and forthe receiver manufacturing industry. A major policygoal of Galileo is to ensure that Europe can take a fairshare of the global market and related jobs and tofurther European industry at the leading edge of thedevelopment of future applications.The same industrial policy underlies the hesitationof the US to allow international ownership or activeinternational cooperation in GPS. It is worth recallingthat the 1996 US Presidential Decision Directive onGPS categorically stressed economic competitivenessand productivity as some of the policy goals on GPS.These policies, undoubtedly, go for Japan as well as forthe Russian Federation.The bottom line is that the system provider or theinitiator of the system must gain maximum industrialbenefit from the satellite navigation system.International ownership should not be considered as thefirst objective of any state investing heavily in satellitenavigation. This is not to question the integrity of theEU and the ESA. Nor should it be seen as spelling adoom on international ownership. The fact however is,the usefulness of stressing ownership of the system isquestionable. International ownership should not be acondition for the introduction of a civil internationalsystem. While that is, politically, most desirable; whileinternational ownership could mean a commercialsuccess of such a venture, the most essential parametersto consider at the moment should be the extent ofcooperation among the system providers and potentialparticipants to resolve the technical difficulties thathave arisen as a result of the gradual proliferation.Additionally, cooperation should be intensified andparticipation sought from other interested states andregions for the purpose of creating inter-regional linkups.Satellite navigation is gradually developing , into acommercial service. The European market for satellitenavigation user equipment, services and exportsbetween 2005 and 2025 is projected to be Euro 270billion86. On the issue of financing of Galileo, theinitiators of the system expect to raise a substantialprivate capital to be able to finance the almost Euro 3billion project. Given these circumstances, it is ratherquestionable to insist or unduly emphasise internationalownership.87The legal community could therefore do a goodservice to satellite navigation by concentrating anddeveloping rules on cooperation to eliminate thetechnical problems of interoperability, proliferation ofsystems, uneconomic utilisation of radio frequency andrelated issues. An appropriate multinational forumshould be created to enable effective cooperation.Currently the ad-hoc interchanges between the primarysystem providers and the secondary providers are notconducive to ensuring the needed safety nor is iteffective to lead to a properly global system. The issueis which forum would be suitable for such internationalcoordination.The multifaceted character of GNSS in terms ofusage, system providers and service providers makes itessential for the UN to seek actively means to createsuch a forum under the auspices of the UNCOPUOS.From that perspective, this initiative must be applaudedand supported.86 Galileo, A EC Brochure produced by an industrialconsortium.87 See Henaku, op.cit. note 3 p. 176 e t seq. for a discussion ofthe unfortunate bundling of ownership, control and globalacceptability of GPS.

EXPANDING GLOBAL NAVIGATION SERVICES 171InterferenceIn spite o f the right o f a State to adopt thecourse which it considers best suited to theexigencies o f its security and to themaintenance o f its integrity, the deliberateand unannounced denial o f service over aselected area could be a breach o f theprinciple o f non-discrimination, a violation o fthe Trail Smelter principle and o f the doctrineo f reliance.88Interference is an issue closely linked to availability andcontinuity of the GNSS signal. Indeed the service to beprovided must to the extent possible be free of anyharmful interference. Interference from the perspectiveof GNSS is also closely linked to accuracy of theprimary signals.Interference may be categorised as intentional andunintentional interference. Deliberate interference is themost essential issue. To the extent possible thediscussion will be limited to intentional interference,also known as jamming.The enormous accuracy of GPS, GLONASS, andas augmented by secondary systems as EGNOS,WAAS and MSAS has been of serious concern to themilitary. National security and the integrity of the statecould be seriously affected through the use of theaccurate systems as a weapon against any other states.The Gulf War and the Kosovo Crisis have shown whatpowerful tools satellite navigation systems are.Thus, one does not expect providers of the signalsto remain unconcerned about their security and remainsitting ducks. On the other hand, the provider or anyother state for that matter is legally not left unrestrainedto interfere deliberately with reception of GPS,GLONASS or any other satellite navigation signal.Moreover, international law limits the freedom ofstates to act when their acts could potentially causedamage to other states. This may be seen as preventiveworking of the doctrine of liability, something concededas being one of the main objectives of the tort law indomestic law89.The Trail Smelter Principle: sic utere tuout alienum non laedas90International law recognises the freedom of the state to,within its territory, act as it wishes, subject obviouslyto the law. The sovereign right of states to operatewithin the territories to protect the territory and thecitizens of the state is a jealously guarded right.Sovereignty, as reiterated in a number of arbitralawards and court judgements, signifies independence toexercise, to the exclusion of others, the functions of astate91. Furthermore, "[t]he right of a State to adopt thecourse which it considers best suited to the exigenciesof its security and to the maintenance of its integrity, isso essential a right that, in case of doubt, treatystipulations cannot be interpreted as limiting it ..."92.At the same time, however, international lawrecognises the right of states not to be injured by theacts of other states. The right of the one state to protectitself from danger coexists with the right of the otherstate not only to prevent danger but also not to besubjected to any harm by the other state in its action toprevent danger to its territory.Thus, to that initial right is a correlative duty: aduty resting on states not to cause harm or injury toanother state or its citizens. In other words, inasmuchas one has the right to enjoy and protect his property as84 See L Englard, The Philosophy o f Tort Law, 11 e t se q (l993).90 Henaku, op cit. note 3,19391 Island o f Palmas (1928).88 Henaku, op.cit note 3, pp. 190 - 198.92 The Wimbledon Case (1923). PCIJ Rep. Ser. A. No. 1Dissenting opinion by Anzilotti and Huber at 37.

172 EXPANDING GLOBAL NAVIGATION SERVICEShe wishes, one should do so in such a manner as not toinjure another or his property. This general principle oflaw is operative and effective in national as well asinternational law and applicable to states as to privatecitizens93. The International Law Commission's (ILC)consideration of the question of "International liabilityfor injurious consequences arising out of acts notprohibited by international law" has resulted in considerableattention being given to this rule reflected inthe maxim sic utere tuo ut alienum non laedas.One may recall the vivid expression of the rule andits application in the landmark arbitral award of theTrail Smelter Arbitration94 where it was thus stated:“... (n)o State has the right to use or permit the use ofits territory in such a manner as to cause injury byfumes in or to the territory of another or the propertiesor persons therein, when the case is of serious consequenceand the injury is established by clear andconvincing evidence.”Reliance95Additionally, the freedom of the provider state is alsolimited by the feet that states will be relying on theoffers made to permit the use of GPS, and the fa c t thataircraft operators are relying on the system to navigate.This legal principle of reliance, also referred to asthe Good Samaritan principle, is applied in its variousforms in many legal systems throughout the world.93 Handelskwekerij G.J. B ier B.V. et al. v. M ines de Potassed'Alsace S A . (MDPA) District Court of Rotterdam, 8 January1979, N J (1979) No. 113:313 at 319. Translated in vol X I NYIL(1980), 326.94 UN Reports of International Arbitral Awards vol. III, 1965.95 Henaku, op.cit. note 3 p. 197.As succinctly rationalised by a common lawexpert96, though the law will not heed the promisee'sdisappointment at losing the benefit of a promisedperformance97, it does not disqualify him from complainingof genuine tort losses inflicted on him by thepromisor.The law does not require the existence of anintimate personal relationship. Furthermore, a duty maybe found in justifiable reliance on a more generalassumption of protective care. Thus the railways havebeen held liable for level crossing accidents to personswho relied on a practice of signals or closing gates atthe approach of trains, the argument being that, thepromisee, the railways ought to have contemplated thatif a self-imposed duty is ordinarily performed, thosewho know of it will draw an inference if on a givenoccasion it is not performed98.In the US, the Good Samaritan doctrine holds thatwhenever one voluntarily comes to the aid of anotherand the latter relies upon such an undertaking, there isimposed a duty of care upon the former99. The principlehas been applied in many US cases, among which someinvolving air traffic control100.96 J.G. Fleming, The Law o f Torts, 149 (8th ed. 1992).97 This is in virtue of the common law doctrine that considerationmust support even a promise.98 M ercer v. S.E. & C.R. R ly [1922] 2 KB 549 at 554, per Lush J.99 Sections 323 and 324A, Restatement of the Law (second) Torts,vol. 2, American Law Institute Publishers, 1965. Section 323provides:"One who undertakes, gratuitously, or for consideration,to render services to another which he should recognize asnecessary for the protection of the others person or things,is subject to liability to the other for physical harmresulting from his failure to exercise reasonable care toperform his undertaking if: a) this failure to exercise suchcare increases the risk of such harm or: b) the harm issuffered because of the other's reliance upon theundertaking.”100 Ingham v. Eastern Airlines, 373 F. 2d 227 at 236 (2nd Cir.,)cert . denied, 389 U.S. 931, 88 S.C.T 295, 19 L. Ed. 2d 292(1967). This case involved the failure of a FAA approach

EXPANDING GLOBAL NAVIGATION SERVICES 173The Good Samaritan doctrine can be applied to thepromise to provide GNSS signals to the civilcommunity. The provider states were not compelled byany international duty to so promise the signals tostates. By undertaking to offer the signals to theinternational community, the providers have placedthemselves in the position of the parabolic GoodSamaritan and have consequently assumed a duty ofcare involving taking all necessary measures not tocause injury to any state or any user for that matter.Any unannounced interference by signal providerswhich result in damage to any state or citizen of anystate will result in liability claims being brought againstthe provider state. Thus the provider is required to actas any private person or private company will act wheninvolved as promisor and provider of satellitenavigation services.Universal Access and NondiscriminationUniversal Access and discrimination are two sides ofthe same coin. The ICAO Charter on Rights andObligation of requires that states have access to GNSSservices on non-discriminatory basis. This clearly is anapplication of the principle of non-discrimination asespoused in the Outer Space Treaty.Logically, access can only be had within thegeographical coverage area of the GNSS system inquestion. Thus MSAS systems providers are notrequired, unless they profess to be able to do so, toprovide their services to cover all North Atlantic orNorth African routes.Additionally, the non-discrimination clause is onlyapplicable when service is available to the whole areaunder the same terms and conditions. Some of theconditions, which could later lead to the inapplicabilityof the non-discriminatory clause, are charges and thenature of the receiver equipment on board a particularaircraft. While, in the interest of safety, it is importantto make GNSS services available to all states andoperating aircraft, it should still be possible to denyaccess to some states or transport operators who refuseto pay for the service offered when globally agreedcharges are introduced. Of course such denial shouldnot violate the primary objective of international air andmaritime navigation, namely: the safety principle. TheGNSS service provider has a responsibility of beingreasonable in its denial process putting it into operationafter a reasonable time has elapsed and the state,marine or aircraft operator concerned has beeninformed within a reasonable time. A reasonable periodis required because no state has the right to, by itsaction of denying access to a particular state, marine oraircraft operator, create danger to internationalnavigation and thereby breach the safety ofinternational transportation.The introduction of differentiated services under theGalileo system raises a very practical issue. Is theprovision of smart cards allowing different users toreceive and accordingly pay for different services aviolation of the principle of non-discrimination? It maybe recalled that the Commission Communicationsuggests the introduction of different levels of service:• Level 1 service to the mass market• Level 2 a certifiable serviceLevel 3 safety of life and security-relatedservices.controller to inform incoming aircraft that visibility had droppedfrom one mile to three quarters of a mile. The plane crashed whileattempting to land while at the same time engulfed in swirlingground fog. The US government was found liable with the Courtholding that a duty arose with the government voluntarilyassuming the responsibility of providing control services when itwas not required by statute to do so. One essential factemphasised in this judgement was the fact of reliance bypassengers and pilots on the governments services.Level 1 would be available free of charge, at leastuntil the US and Russia review their policies regardingcharging for their signals. Level 2 and 3 would becontrolled access services, available to subscribers inreturn for fees. From the above, it may be correctlysurmised that I do not consider it unlawful to introducediscriminated service as long as the all users in thesame lass are offered the opportunity to make use of the

174 EXPANDING GLOBAL NAVIGATION SERVICESavailable facilities. Obviously, a hypothetical decisionby the European authorities to exempt Europeancommercial airlines from paying or a decision to reducethe amount payable by European commercial shipperswould not only be contestable under the MFN rules ofthe WTO but would be in stark violation o f the nodiscriminationprinciples as adopted under the ICAOCharter. It is doubtful that such a decision would beviolating the Outer Space Treaty while on the otherhand a decision to grant access to non-Europeanairlines access to the basic service on condition ofsubscribing to the Level 3 service would.On the other hand, denial o f service on politicalgrounds is a violation of the global access principle,particularly in relation to aviation and maritime usagewhere safety is of the essence. Where denial can forinstance not be justified on grounds of national securityor technical reasons, and where denial is so clearlyselectively applied to one country or a group ofcountries, given the global nature of GNSS and thegrowing dependence on it, that action by the providerstate should be considered in violation of the nondiscriminationprinciple. It is however important thatthis principle be strictly defined in order to avoidpossible abuse and danger to the provider state. Fromthat perspective, the state denied service could alsounder certain circumstances be made to justify why itstill needs to be granted access. This situation couldhowever only be applied in cases of blatant andcontinuous threat to use the technology as a weaponagainst the provider or any third state.Liability of the GNSS SpaceSegment ProviderGNSS liability should under nocircumstances be equated to liability oftelecommunications services101GNSS satellites have often been equated totelecommunications satellites. The rationale for suchaction is to be able to utilise the traditional disclaimersexisting in telecommunications law.While satellites broadcasting integrity andmonitoring information could be so equated, theprimary navigation satellites such as GPS, GLONASSand the planned Galileo are not. Though satellitemaintenance and correction data is transmitted from themaster control centres to the GNSS satellites, theprimary signals received from GPS and GLONASSsatellites are propagated independently from groundcontrol. The ephemeris data is generated on board,using atomic clocks and emitted quite independent ofhuman interference. Thus while communicationschannels are merely conduits, navigation satellites arenot.In addition to the technical issue, navigationsatellites would be playing a more important role in theassurance o f safety of life. In a sole means environment,where aircraft would have to depend on satellitenavigation systems, the unavailability o f such signalscould mean the death o f hundreds o f persons. Whilehuman loss is imaginable as a result of atelecommunications breakdown or unavailability, thelikelihood, extent and impact would pale compared witha navigation satellite failure.GNSS liability should therefore be seen for what itis—liability arising from a error in satellite navigationandnot be saddled with telecommunications lawdisclaimers.GNSS space segment providers shouldbe held liable in international law fordamage to persons and property arisingfrom errors in or unannouncedunavailability of GNSS signals101 Henaku, op.cit. note 3 p. 172. On disclaimers, see p 220.The thrust of this thesis is to accept the fact thatdamage arising from the crash or collision of aircraft,which event is caused by errors in or the unannounced

EXPANDING GLOBAL NAVIGATION SERVICESunavailability o f GNSS signals, could be subsumedunder a provision such as Article 2 of the LiabilityConvention.175A less cumbersome regime should be devised thatempowers aggrieved objects of international law to beable to successfully intiate actions against states.Apart from cases o f jamming and intentionalinterference, there are situations where a degradation ordisruption of the navigation signals or data error couldresult in some form o f damage to aircraft, passengersand to persons and property on the surface of the earth.These are cases which could fa ll under the regime ofspace law. Activities involving the exploration and useof outer space, regulated in the Outer Space Treaty arealso governed by a detailed regime under the LiabilityConvention. The Liability Convention establishes anabsolute liability regime for the launching state when aspace object causes damage to persons and property onthe surface of the earth or to aircraft in flight. The mostrelevant provision of that Convention is Article II whichstates:“A launching State shall be absolutely liable topay compensation for damage caused by itsspace object on the surface o f the earth or toaircraft in flight.”Difficulties with this assertion is to establish thefollowing:1. That a GNSS satellite can cause damage asperceived under Article II2. That the damage in question is caused byGNSS Satellites3. That the claimant can indeed claim under theLiability ConventionO f these, I will focus on the first two and simplysay in relation to the last that locus standi is notgranted to natural persons under Liability Conventionand the claims procedure is burdensome.If GNSS and other satellite applications willcontinue to be accepted, it will be on the condition thatlegal certainty exists not only in relation to causationbut also in relation to claimant aspects. Each claimantshould be able to seek satisfaction under such a regime.Regarding the first two issues, causal connectionbetween the damage and the space object is the mainelement to be established by a claimant. The launchingstate is absolutely liable to pay compensation only whendamage is "caused by its space object102. RegardingGNSS signal liability, it will not be enough to establisha causal connection between any space object and thedamage. The object must without doubt be a GNSSsatellite belonging to that state against which the claimhas been brought. In the provision of GNSS signals,two institutions have been identified, the primaryprovider and the secondary provider. The claimant mustbe categorical about which of the primary or secondarysystems caused the damage. In establishing the linkagewith a primary signal satellite, it may be advantageousif the secondary signal providers also suffered similardamage simultaneously, or observed the cause of thedamage.The main issue in establishing causation is onwhich test to be used. While some writers like prefer touse the test o f “direct hit” in my view the Conventiondoes not support such an approach. Neither does thetravaux preparatoires nor a commonsenseinterpretation o f the treaty. The correct test to beadopted in establishing the causal connection should bethe proximity test.The difference between the direct hit test and theproximity test is that the first will want to establish aphysical connection between the aircraft in flight or theship on the sea and the GNSS satellite while the otherwould want to establish whether a collision or crashcould be a normal consequence of the type o f failure toreceive GNSS signals under critical conditions ofinstrument flight rules? This is a technical questionwhich may finally need technical and systemengineering expertise to settle authoritatively. It may102 B.A. Hurwitz, Space Liability for Outer Space Activities inAccordance with the 1972 Convention on International Liabilityfor Damages Caused by Space Objects (1992), 31.

176 EXPANDING GLOBAL NAVIGATION SERVICESalso depend on the particular case. It is, however,imaginable for damage to be caused to navigationreceiving equipment onboard aircraft, even to the extentof blocking all navigation functions to be performed bythe aircraft. Where the GNSS satellite signal is the solesystem on board the aircraft the fatalities areunimaginable. The same error that can cause damage toaircraft can also affect ground receiving equipment.But could the US Air Force at the time of launchingthe GPS satellites on board the Delta II spacecraft haveforeseen that some type of damage, as described, canoccur? The response is clearly an issue of fact to bedecided in each case.The rule o f thumb in this situation is, uponexamining all technical details, to decide whether thedamage that has occurred is one which would occur asa natural result of the technology. It must also beestablished that no other independent cause existed ofwhich it might have been the result. The possible role ofany other mechanism unconnected with the GNSSsignal causing or contributing to cause damage is ofvery particular significance in this complex technology.To that extent, receiver manufacturers would carry aheavy burden. The likelihood of excuses being found infaulty receivers or faulty antennae installations shouldnot be discounted. There are very many less esotericand less politically charged causes one could point tofor relieving the signal provider o f its liability.Beside appealing to science, one must also establishthat this type of damage is in legal contemplation anormal consequence o f the activity and could also havebeen reasonably anticipated to either expressly fallwithin the ambit o f the legal regime concerned or that itcan be accommodated thereunder. In essence would thedrafters o f the Liability Convention, apprised of thefacts about GPS, GLONASS and Inmarsat III satelliteshave contemplated GNSS fa lling within the ambit o f theLiability Convention?The result o f the hit/impact reasoning is to limit thevalue of the Convention to the type of damage possiblein 1972. Subsequent space activities will be left outunless they fell within that category of direct impactdamage. This view strongly offends the dynamism oflaw and the extreme sense o f technological innovationinvolved in space exploration. It is a total disregard ofthe temporal value of law. As was argued earlier, legalobligations and rights need to be reassessed in the lightof the interplay o f new social facts with the evolution ofinternational legal conduct. Law, after all, is dynamic,not static. Consequently, when confronted by theintermingling o f new and old technologies, the scope ofthe duty is better assessed in the light of the new factsand the development of international law.A significant point to note is the story behind theuse of the words “caused by” in Articles II and III ofthe Liability Convention.In response to a proposal which tended to limitliability to physical contact cases, the Canadian, Italian,and French delegates at the Legal Sub-Committeeimpressed upon the meeting that not all damage was asa result o f physical contact. In their opinion, theproximity test best exploited to lay down the scope ofliability o f the launching state. Thus what originallywas framed in the following terms "if the collision ofspace objects causes damage ... " 103 was rephrased as“caused by”.This debate is significant from the feet that thedelegates considered that damage caused by spaceobjects can take on various forms; that damage can becaused irrespective of there being a form o f physicalcontact; and that damage can be caused throughinterference with the radio spectrum.What is the significance o f this discussion to GNSSsatellites? The significance as far as GNSS satelliteliability is concerned, lies in the fact that (1) there is norequirement of physical contact and (2) that damagecan be sustained by proximity to a satellite. Thedetermination o f damage will not be based on thelimited conception o f physical impact or hit but ratheron the proximity test.103 UNCOPUOS, Summary Record of the 94th Meeting, 10June 1968, A/AC.105/C.2/SR.94, 52 (hereinafter,Summary Records)

EXPANDING GLOBAL NAVIGATION SERVICES 177General Legal Principles on SpaceApplicationsThe issues raised in this paper show clearly the need forclear rules to govern the expanding GNSS services.Questions that need to be answered are numerous,some of which are:• What is the legal (and technical) character ofthe GNSS satellite?• Can GNSS damage be subsumed under theLiability Convention?• If so what would be the problems to be faced?• Is there the need for a specific Convention onGNSS?While not in favour of rushing to design specificlegal regimes for each and every field, I am of theopinion that GNSS offers ample opportunity for theUNCOPUOS to engage in a thorough analysis of thelegal regimes existing so far, comparing them to themultitude o f applications and determining whether theexisting corpus o f rules cover all those applications.GNSS clearly show they do not. In my view, it will bebeneficial to providers and users alike for rules to bedesigned that would not only be applicable to all sectorso f GNSS usage but also o f other space applications.Suggestions• Need for precision, cross-correlation of datafor mapping, system augmentation, definitiono f GNSS mission, operational structure andnon-interference.• Elaboration of an action programme including:• regional and global cooperation to achieve aseamless multi-modal system (cf EGNOS andstudies for GNSS-2 in Europe),• international cooperation to ensurecompatibility between present and plannedsystems, and support for ICAO, IMO and ITUas key entities.• The draft UNISPACE III Report shouldalready set out detailed facts and GNSS issues,and its tasks are to be to supplement them byidentifying issues not dealt with in the draftreport.• Need for multifunctional coordination by aforum, that represents interests of all potentialcategories of GNSS users, while also takingfull account o f ICAO's and IMO's specialrequirements.Summary ReportIssuesThis session considered the existing and plannedsystems for provision o f navigation services by satelliteand matters involving universal access, continuity ofservice, implications for international ownership,international cooperation and issues o f systemstandardisation.• Need to identify essential principles to beincorporated in any global legal framework ora number o f regional or national coordinatedframeworks, including continuity o f service,universal access, non-discrimination, servicequality, reliability and precision.• Need to identify non-discriminatory financialprinciples, particularly pricing and the need forrevenue streams in systems established by theprivate sector but taking into account therequirements o f the safety services.

Resolution of liability issues including a reviewof the applicability of the 1972 LiabilityConvention or an international compensationfund, or contractual remedies. Evaluate thecommercial practice in GNSS includinginsurance, the telecommunications practice andthe wider concern o f liability in informationtechnology related services. Find the bestsolution to give GNSS worldwide acceptance,guaranteeing quality o f service to users.Need to define the global use of GNSS and inparticular a basic and public safety service tobe provided on a secured basis by theinteroperable systems operators making upGNSS. Consideration to be given to needs ofdeveloping countries respecting sovereignty,while promoting growth of GNSS in revenueexpanding applications.Exploiting the full benefits of GNSS requiressupport from the world-wide community ofusers and recognition by States of the socialand economic advantages to be derived from anincreased level of service and therefore alsotheir support to settle issues of frequencyallocations at ITU.

POSSIBLE INTERNATIONAL REGULATORYFRAMEWORKS, INCLUDING LEGAL CONFLICTRESOLUTION IN EXPANDING SPACECOMMERCIALIZATIONSESSION 7Chair: Professor Karl-Heinz Bockstiegel (Germany)Coordinator/Rapporteur: Ms. Anna Marie Balsano (European Space Agency)

SESSION SEVENPossible International Regulatory Frameworks,Including Legal Conflict Resolution inExpanding Space CommercializationDiscussion PaperThe Relevance of International Economic Lawand the World Trade Organization (WTO)for Commercial Outer Space ActivitiesPeter Malanczuk*GLODIS-lnstituteFaculty of Law, Erasmus University RotterdamBurgermeester Oudlaan 50NL-3862 PA Rotterdam, The NetherlandsTel.: +31-10-408 2677/1574Fax.: +31-10-408 9006e-mail: malanczuk@law.eur.nl.IntroductionThe commercialization of outer space activitiesincreasingly also engages rules of internationaleconomic law and involves international organizationsentrusted with law-making and dispute settlementfunctions in this area. It is still a matter o f disputeamong scholars what the term "international economiclaw" exactly covers. The main problem in this respectis the close interconnection o f the law governinginternational economic relations with the domestic lawof states. At any rate, the core o f international economiclaw includes the international regulation o f theestablishment by foreign business o f various factors ofproduction (persons and capital) on the territory ofother states (and in areas beyond national jurisdiction),on the one hand, and o f international transactionsconcerning goods, services and capital, on the otherhand.1* Director of the GLODI S-Institute, Institute of Globalization,International Economic Law and Dispute Settlement, and Headof the Department of International Law of the Law Faculty,Erasmus University Rotterdam. Honorary Guest-Professor ofPeking University and Honorary Director of the Centre ofGlobalization and International Law, Peking University.Honorary Professor o f Nankai University, Tianjin, and of theChina University of Political Science and Law, Beijing.Chairman of the ILA Study Group on State Responsibility.Counsel o f Lalive & Partners, Geneva. Member of the Board ofthe European Centre for Space Law (ECSL).© 1999 with the author. This paper has been submitted forprint in the proceedings of the 3rd ECSL Colloquium:International Organisations and Space Law; Their Role andContribution, Perugia, Italy 6-7 May 1999.1 See P. Malanczuk, Akehurst’s Modem Introduction toInternational Law, (7th ed. 1998), p. 222 et seq. with further references

182 POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONInternational activities o f private actors2 investing intothe commercial use o f outer space are increasinglyfa lling within the ambit of the regulatory work ofinternational organizations concerned with theformulation and application of general principles andrules dealing with international trade, foreigninvestment and the protection o f intellectual propertyrights. This paper focuses on the role o f the WorldTrade Organization (WTO) which was established in1995 after the completion o f the GATT-Uruguay-Round. The Uruguay Round Agreements include anumber of instruments directly or indirectly relevant tothe commercialization o f outer space activities, such asthe General Agreement of Services (GATS) or theAgreement on Trade-Related Aspects o f IntellectualProperty Rights (TRIPS).3 The paper concentrates onthe sectoral agreement on telecommunications, annexedto the GATS.4 The Telecommunications Annex isconsidered to be a major breakthrough in internationaltrade negotiations. It also covers certain aspects ofsatellite-related communications.This paper first provides some general backgroundinformation on the development of telecommunications.It then addresses the relevant developments in theWTO, focusing on the GATS, the TelecommunicationsAnnex and the specific commitments of states. It endswith a brief evaluation, including the relevance of thenew Agreement on Trade in Information TechnologyProducts (ITA).General BackgroundTelecommunications has become a global industry withfierce competition of both the providers of2 See P. Malanczuk, Actors: States, International Organizations,Private Entities, in: G. Lafferranderie/D. Crowther (Eds.),Outlook on Space Law over the Next 30 Years. EssaysPublished fo r The 30th Anniversary o f the Outer Space Treaty(1997), pp. 23-36.3 International Legal M aterials, Vol. 33 (1994), p. 1 et seq. andp. 1125 et seq. See Malanczuk, Akehurst's, supra, p. 231 et seq.4 International Legal M aterials, Vol. 36 (1997), p. 354 et seq.telecommunications services as well as o f themanufacturers o f telecommunications equipment,particularly between the triad o f Japan, the UnitedStates and Europe.5 The process of competition andglobal restructuring o f the industry, with the formationof "strategic alliances" on the world level, has beenenhanced by the wave o f privatization, deregulation andliberalization of monopolies which had commenced in1984 in the United States and in the United Kingdom.W ithin the fram ework o f the EuropeanCommunity/European Union this process has led to anintensive deregulatory activity since 1984.6 Europeanorgans have been mainly using the instrument ofdirectives in a step-by-step approach addressingindividual sectors and issues in recognition o f thedecisive economic, social and technological role oftelecommunications in building Europe and sustainingits position on the global market. Some 40 legalinstruments have been adopted to deal with areas suchas telecommunications services, voice telephony anduniversal service, open network provision (ONP)principles governing private access to publictelecommunications networks and services, mutualrecognition of licences for the provision oftelecommunications services in all member states, rulesgoverning interconnection, tariffs, taxes, the market forterminal equipment, public procurement, competitionlaw, satellite communications, mobile communications,the coordination o f frequencies, numbering and dataprotection and privacy.Especially significant for market liberalization, forexample, are competition rules and instruments such asDirective 97/33/EC of 30 June 1997 on interconnectionin telecommunications with regard to ensuring universal5 See P. Malanczuk, Information and Communication, Freedomof [with Addendum], in: R. Bernhardt (ed.), Encyclopedia o fPublic International Law, Vol. II (1995), pp. 976-991; P.Malanczuk, Telecommunications, International Regulation of[with Addendum 1998], in: R. Bernhardt (ed.), Encyclopedia o fPublic International Law, Vol. IV [forthcoming],6 See P. Malanczuk, Ten Years of EuropeanTelecommunications Law and Policy - A Review of the Pastand of Recent Developments, Telecommunications and SpaceJournal, Vol. 1 (1994)27-51.

POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGAL 183CONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONservice and interoperability through application of theprinciples o f ONP; the Communication from theCommission on the application o f the competition rulesto access agreements in the telecommunications sector -framework relevant markets and principles (97/C76/06); and the Guidelines on the application of EECCompetition Rules in the Telecommunications Sector(91/C 233/02). The last telecom monopolies in the ECwere supposed to be abolished as of 1 January 1998,but there were still a number o f member states laggingbehind.Telecommunications now belongs to the fastestgrowing markets on both the European and the globallevel. Converging with modem computer andinformation technology, world-wide telecommunicationsnetworks provide the technical backbone o f the processof the "globalization" o f the world economy, withmultinational companies emerging as driving forces ofthe globalization process and as important non-stateactors on the international level.7In essence, the advance of global communications,involving basic changes in the traditional notion ofinformation, is a technology driven process. But it isalso influenced by the political and legal frameworkconditions. Digitalization makes it possible to translatevarious kinds of information (films, books, televisionprogrammes, pictures, music, computer programmes,speech) into digital signals which can be stored incomputers and/or transmitted globally via radiotransmissions or fibre optic media. The emergence ofthe so-called "information society" rests upon theconvergence of speech, pictures and data on the levelsof the terminal equipment, the software and the7 See P. Malanczuk, Globalization and the Future Role ofSovereign States, in: Friedl W eiss / Paul de W aart / EricDenters (eds.), International Economic Law with a HumanFace.(1998), pp. 45-63; P. Malanczuk, M ultinationalCorporations and Treaty-Making - A Contribution to theDiscussion on Non-State Actors and the "Subjects" ofInternational Law, in: Proceedings o f The American Society ofInternational Law/Graduate Institute o f International Studies,Forum Geneva, Multilateral Treaty-Making: The CurrentStatus o f Challenges and Reforms Needed in the InternationalLegislative Process, May 16,1998, Geneva, Switzerland,[forthcoming].transmission o f information. In addition, storagecapacity, transmission capacity and transmission speedare continuously increasing. Also more and more use ofthe Internet is being made. While in 1991 there wereless than 5 million users, it is expected that by the turno f the century there are likely to be more than 300million users.In creating a global communications network theuse o f space technology (satellites) complements thelinking o f distant regions through submarine cables,trying to meet the growing demand for internationaltelecommunications services. New satellite systems arein preparation to provide for truly global coverage of abroad variety o f telecommunications services forcompanies and individuals wherever they are located.There are 20 private consortiums presently engaged insuch projects, o f which the "Iridium" project isprobably the most known. Iridium is one of three largesatellite projects of Motorola and is designed to offermobile services all over the globe. The first 5 of a totalo f 66 Iridium satellites were deployed in orbit in May1997, with a total project budget o f some US $ 5billion. The Motoral "Celestri" project, with 63satellites, is designed to deal with the market for highspeeddata transfer and television and videotransmissions. The third Motorola project "M-Star",consisting of 72 satellites, costing about $ 6.1 billion,is primarily aiming at the market for internal datatransfer of global corporations (intra-corporatecommunications). Competitors o f these projects includethe "Teledisc" project, controlled by the businessmenCraig McCaw and Bill Gates, the "Globalstar" projecto f Loral and the "Ico" project o f an internationalconsortium. Market analysts expect that in the comingdecades some 1000 commercial satellites will belaunched. However, whether this is economically reallyfeasible remains to be seen, also in view of the existing"paper satellites", which have given rise to disputes inview o f applications for the allocation o f radio spectrumand orbital positions by applicants who have noimmediate intention or capacity to make use of them.Intercontinental cable network projects, on the otherhand, are also advancing as highly potenttelecommunication networks. They include the China-US undersea fibre-optic cable which is scheduled to go

184 POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONinto operation at the end of 1999. The Japan-USsubmarine cable network, due to be operational in thesecond quarter o f 2000, will connect Japan with the USmainland via Hawaii. In order to meet the increasingdemand for multimedia traffic on the Japan-Europe andJapan-US routes, the planned TAT-14 Cable Networkwill link the US mainland with the UK, France, theNetherlands, Germany and Denmark, starting also inthe fourth quarter o f 2000. In March 1998, Gemini, thefirst transatlantic telecoms cable network to caterprimarily for Internet traffic entered into service,costing about $ 500 million to lay and which directlyconnects London and New York. There are also anumber o f other current transatlantic sub-sea cableventures and the next generation o f cables due to bedeployed in 2000-2005 is expected to increasetransmission speed capacity tenfold.In fa c t, however, global communications hasremained more a phenomenon that is technicallyfeasible than real in the sense of having created a true"global village". It is limited to the economicallyadvanced regions o f the world. Many parts of the world(developing countries) have still have very limitedtelecommunications penetration. There is clearly animportant telecommunications gap. This problem hasbeen addressed in a number of studies, most notably inthe 1985 report "The Missing Link", produced by theIndependent Commission for W orld-W ideTelecommunications Development (Sir DonaldMaitland, UK, chairman).8 The 1998 edition o f theITU's World Telecommunication Development Reportshows that there has been little progress.9 According tothis report, at the beginning of 1997 62 per cent of allmain telephone lines were installed in only 23 developedcountries (Australia, Canada, the European Union,Iceland, Japan, New Zealand, Norway, Switzerland andthe United States), accounting for just 15 per cent of theworld population. Although 60 per cent o f thepopulation in developing countries lives in rural areas,8 D. Maitland, The M issing Link, Report o f The IndependentCommission For Worldwide Telecommunications Development(1985).9 ITU, World Telecommunication Development Report (8th ed.1998).more than 80 per cent of main telephone lines in thesecountries are in urban areas. With regard to new typeso f networks and services, it is startling to note that 84per cent of mobile cellular subscribers, 91 per cent ofall facsimile machines, and 97 per cent of all Internethost computers are located in industrialized countries.Finally, there are more cellular telephones in Thailandthan in Africa, and more Internet host computers inEstonia than in sub-Saharan Africa (excluding SouthAfrica). About half of the world population has nevereven made even a telephone call.Developments in the World TradeOrganization (WTO)An important international trade regime for thetelecommunications industry was established in 1997within the new World Trade Organization (WTO) onthe basis of the framework of the General Agreement onTrade in Services (GATS) and the WTO Agreement onBasic Telecommunications Services, annexed to theGATS.10 The 69 states that have made commitmentsunder this agreement account for more than 93 per centof global telecommunications revenue. Among theregulatory principles accepted by the parties are theprevention of ant-competitive practices, the obligationto provide interconnection on transparent andreasonable terms and the requirement for independentregulatory bodies and other commitments facilitatingmarket access.10 See P. Malanczuk, From GATS to WTO - The LegalFramework of the 1997 WTO Telecommunications Agreement,Telecom International, Vol. 1 (1997), pp. 22-27; P.Malanczuk/H. de Vlaam, International Trade inTelecommunications Services and the Results of the UruguayRound of GATT, Telecommunications & Space Journal, Vol. 3(1996), pp. 269-90; A.E. Appleton, Telecommunications Trade:Reach Out and Touch Someone?, University o f PennsylvaniaJournal o f International Economic Law, Vol. 19 (1998), pp.209-227; M.C.J. Bronckers/P. Larouche, TelecommunicationsServices and the World Trade Organization, Journal o f WorldTrade Law, Vol. 31 (1997), pp. 5-47; R. Frid, TheTelecommunications Pact Under the GATS-Another StepTowards the Rule of Law, Legal Issues o f EuropeanIntegration, Vol. 24 (1997), pp. 67-96.

POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATION185The World Trade Organization (WTO) agreementreached on 15 February 1997 on the liberalization ofinternational trade in telecommunications services isgenerally viewed as a significant landmark in thehistory o f international trade negotiations. Theagreement itself is based upon 55 so-called schedules ofcommitments which some 70 WTO member states(counting the offer of the 15 member states of theEuropean Union as one offer) entered into. Theseschedules contain specific commitments to open certainsectors o f the national telecommunications market toforeign competition. They are annexed to the FourthProtocol to the General Agreement on Trade in Services(GATS) which was open for acceptance until 30November 1997. The commitments were to enter intoforce on 1 January 1998; however, the implementationwas delayed because 15 o f the signatories had notratified the agreement in time. It was then agreed thatthe agreement should enter into force on 5 February1998. Thus, the GATS plus other relevant documents,such as the Telecommunications Annex, which emergedfrom the completion in 1994 of the Uruguay Round ofGATT are of central importance for putting the resultsof the 1997 telecom agreement into a proper legalperspective.In addition, there are other related specific sectoragreements, such as the agreement in 1997 to removetariffs on information technology products, and thesubsequent 1997 agreement to liberalize trade infinancial services. These agreements are viewed asbeing more than mere trade arrangements. They areseen as instruments to progress the flow of technologyand information around the world and to contribute tothe building o f the new infrastructure o f the informationage, like the development o f railways and shipping inthe last century provided the infrastructure for theindustrial age.The GATSBefore the acceptance of GATS, the regulation o f tradein services had been limited to bilateral treaties dealingwith the treatment o f nationals of the respective partiesor to regional or bilateral agreements constituting freetrade areas or customs unions. Services were includedin the GATT negotiations because o f the growingeconomic importance o f the sector. In terms of value oftrade, services already represent a far greaterproportion than for instance agriculture (world exportsin 1990 amounted to US$ 4,300 billion, of which 60per cent were in manufactures, 19 per cent in services,1 1 per cent in mining and only 10 per cent in agriculture).Today, over 20 per cent of world trade and 60 percent of world production are in the area covered by theGATS.The GATS is built upon several layers. First, thereis a framework agreement which applies to any servicein any sector, except a service provided in the exerciseof governmental authority either on a commercial basisor in competition with other suppliers. Some of thebasic provisions follow the corresponding provisions inGATT law on the trade in goods. Second, there arevarious types of commitments in national schedules totake care of the fact that most barriers to internationaltrade in services do not arise from border measures (asin the case of goods) but from domestic regulations,affecting (and discriminating), for example, tourism,foreign consultants or construction workers, or theoperation o f subsidiaries o f foreign banks on theterritory of the receiving state. The GATS envisagessuccessive rounds o f negotiations on the progressiveliberalization of trade in services. Third, individual(more sensitive) service sectors have found specialtreatm en t, in clu d in g fin an cial services,telecommunications, air transport services, maritimetransport services and movement of natural personsproviding services.The preamble o f GATS recognizes the growingimportance o f trade in services for the growth anddevelopment of the world economy and aims toestablish a multilateral framework of principles andrules for trade in services with a view to the expansiono f such trade under conditions of transparency andprogressive liberalization and as a means of promotingthe economic growth of all trading partners and thedevelopment o f developing countries. It mentions theneed for progressively higher levels of liberalization oftrade in services to be achieved through successiverounds of multilateral negotiations, but also recognizesthe right of states to regulate, and to introduce new

186 POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONregulations, on the supply o f services within theirterritories in order to meet national policy objectives.The GATS consists o f six parts and includesseveral annexes, including, inter alia, on air transportservices, financial services, negotiations on maritimetransport services, telecommunications, andnegotiations on basic telecommunications.Part I lays down the scope and definition o f theagreement. It applies to measures by Members affectingtrade in services (Art. I (1)) Trade in services is definedas the supply of a service through four modes ofdelivery: cross-border, movement o f consumers,commercial presence and movement o f personnel. (Art.I (2)). In practice, cross-border supply o f services (i.e.,database access) and commercial presence are the mostimportant for telecommunications services. Measuresby Members include not only measures taken bycentral, regional or local governments and authorities,but also by non-governmental bodies in the exercise ofdelegated powers (Art. I (3)(a)). However, the termservices excludes services supplied in the exercise ofgovernmental authority, which, in essence, is defined byits non-commercial, non-competitive nature (Art. I(3)(b) & (c).Part II deals with General Obligations andDisciplines containing, inter alia, traditional GATTprinciples,such as the ”most-favoured-nation” (MFN)clause and the transparency of rules and procedures(Arts. II and III), to ensure equity in treatment of allservice providers. The MFN principle stipulates thattrade must be conducted on the basis o f non-discrimination.Liberal rules agreed between any two GATTsignatories must be extended immediately andunconditionally to all others (Art. II). MFN treatmentmust be granted without demanding a consideration inthe form o f additional advantages or reciprocity. -However, if no foreign service provider is allowed toenter a national market, then the MFN clause has nopractical effect. Measures inconsistent with the MFNprinciple may be maintained if such a measure is listedin, and meets the conditions of, the Annex on Article IIExemptions (Art. II (2)).Another interesting provision concerns monopoliesand exclusive service providers. If a member statesmonopoly supplier competes, either directly or throughan affiliated company, in the supply o f a service outsidethe scope of its monopoly rights and which is subject tothat Member's specific commitments, the Member shallensure that such a supplier does not abuse its monopolyposition to act in its territory in a manner inconsistentwith such commitments (Art. VIII (2). This is relevantbecause o f the possibility for monopolytelecommunications service providers to delay or denyinterconnection or access to their networks forcompetitors. Moreover, the issues o f tariffs and accesscharges are becoming increasingly important in thissector.Other Articles of Part II of the GATS deal withdisclosure o f confidential information (III bis),increasing participation of developing countries (TV),economic integration (V), labour markets integrationagreements (V bis), domestic regulation (VI),recognition (VII), business practices (EX), emergencysafeguard measures (X), payments and transfers (XI),restrictions to safeguard the balance o f payments (XII),government procurement (XIII), general exceptions(XIV), security exceptions (XIV bis) and subsidies(XV).Part III addresses specific commitments, such asmarket access and national treatment. Art. XVI (1)provides that with respect to market access through themodes of supply identified in Article I, each Membershall accord services and service suppliers o f any otherMember treatment no less favourable than that providedfor under the terms, limitations and conditions agreedand specified in its Schedule. The concept of nationaltreatment in Article XVII is closely connected to theMFN principle. It deals with discrimination againstforeign countries, whereas MFN concerns discriminationbetween foreign countries. Its intention is toprovide equal conditions o f competition, once goods orservices have crossed the border. An importantconsideration is that it is subject to existing domesticlegislation. The clause on its own is not suited toprovide access to monopolistic foreign markets.Furthermore, the national treatment principle is onlyaimed at discrimination caused by state regulations.

POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATION187Discrimination by private companies is not within itsscope. This is becoming increasingly important in aliberalized environment, where basic telecommunicationfunctions are provided by privatized companies withconsiderable, if not monopolistic, market power.Part IV o f the GATS, dealing with progressiveliberalization, is the heart of the agreement in practicalterms. Member states are required to enter intosuccessive rounds o f negotiations, starting not later thanfive years after the WTO Agreement entered into force,to achieve a progressively higher level of liberalization(Art. XIX (1)). Members are further required to set outin a schedule the specific commitments they undertakeunder Part III of GATS. With regard to such sectorspecificcommitments, the schedules must specify (a)terms, limitations and conditions on market access; (b)conditions and qualifications on national treatment;undertakings relating to additional commitments; and(d) the date of entry into force of such commitments(Art. XX (1)). Provision is finally made for themodification of schedules (Art. XXI).The institutional provisions in Part V are likely toobtain stronger significance in the future in the case ofdisputes. They deal with consultation obligations (Art.XXII), dispute settlement and enforcement (Art. XXIII)and the new Council for Trade in Services (Art. XXIV).The latter body is entrusted with important functionsunder the GATS. Moreover, these provisions establishlinks to the new and more efficient WTO disputesettlement mechanism, as reflected in the DisputeSettlement Understanding.Part VI contains final provisions concerning thedenial of benefits (Art. XXVII), the definitions relevantto the Agreement (Art. XXVIII) and the Annexes,which are an integral part of the Agreement (Art.XXIX).The Telecommunications AnnexThe Telecommunications Annex deals with objectives,scope, definitions, transparency, access to and use ofpublic telecommunications transport networks andservices, technical cooperation, and the relation tointernational organizations and agreements. It providesnotes and supplementary provisions to the GeneralAgreement.The purpose of the Annex is to ensure thatcompanies can make use o f the public network andfacilitary services to reach customers and carry onbusiness activities. It sets out a minimum code of goodregulatory behaviour and elaborates particular featuresof the sector, particularly as a mode of delivery. This isan important difference to the other Annexes of theAgreement. The Telecommunications Annex applies notto the service sector per se, but governs the access tomarkets and the use o f infrastructure. The purpose is toensure that countries which agree to trade in variousservices, such as financial, business or insuranceservices, also offer adequate telecommunicationsfacilities to deliver these services across the border orwithin their own territory. By explicitly recognizing thedual role of the telecommunications services sector asa distinct sector o f economic activity and as theunderlying transport means for other economicactivities, the Telecommunications Annex states theobjective of elaborating upon the provisions of theagreement with respect to measures affecting access toand use of public telecommunications transportnetworks and services (Section 1).The Annex applies to all measures of Members thataffect access to and use of public telecommunicationstransport networks and services concerning theprovision of services accepted in a country's schedule.It does not cover measures affecting the cable orbroadcast distribution of radio or televisionprogramming, or telecommunications transport networkand services that are not offered to the general public(Section 2).Telecommunications is defined as the transmissionand reception o f signals by any electromagnetic means(Section 3). Public telecommunications transportservice means any telecommunications transport servicerequired by a Member, either explicitly or in effect, tothe public generally, including, inter alia, telegraph,telephone, telex, and data-transmission typicallyinvolving the real-time transmission of customersuppliedinformation between two or more points

188 POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONwithout any end-to-end change in the form or content ofthe customer's information. Public telecommunicationstransport network is defined as the publictelecommunications infrastructure which permitstelecommunications between and among definedterm ination points. F inally, inter-corporatecommunications is explained as telecommunicationsthrough which a company communicates within thecompany or with or among its subsidiaries, branchesand, subject to a Member's domestic laws andregulations, affiliates. The legal determination of theconcepts of subsidiaries, branches and affiliates is leftto domestic law. The definition excludes commercial ornon-commercial services that are supplied to companiesthat are not related subsidiaries, branches or affiliates,or that are offered to customers or potential customers.The transparency requirement obliges Members tomake relevant information on conditions affectingaccess to and use of public telecommunication transportnetworks and services publicly available. This includestariffs and other terms and conditions of service,specifications o f technical interfaces, information onbodies responsible for relevant standardization,conditions applying to the attachment of terminal orother equipment, and notifications, registration orlicensing requirements (Section 4).Access and use o f public telecommunicationstransport networks and services for foreign serviceproviders must be accorded in a reasonable and nondiscriminatorymanner for the supply of a service in asignatories schedule (Section 5). Such access and usemust be granted for any public telecommunicationstransport network or service offered within or acrossthe border of that Member, including private leasedcircuits. A number o f further obligations are set forth,including permitting customers to purchase or leaseattachment equipment o f their choice, to interconnectprivate leased or owned circuits with public networks,and to use operating protocols of the services suppliersor customer's service suppliers, and for access toinformation contained in databases or otherwise storedin machine-readable form in the territory o f anyMember. On the other hand, a Member is entitled totake measures to ensure the security and confidentialityo f messages or to safeguard the public servicesresponsibilities, to protect the technical integrity o f thenetworks and services or to ensure that no services areprovided outside the scope of a Member's schedule.The Telecommunications Annex recognizes thespecial needs o f developing countries and encouragestechnical cooperation to establish an efficient, advancedtelecommunications infrastructure to expand their tradein services (Section 6). It finally also stresses theimportance o f global technical standards forc o m p a tib ility and in te r-o p e ra b ility o ftelecommunications networks and services, requiringcooperation with relevant international bodies, such asthe International Telecommunications Union and theInternational Organization for Standardization (Section7).Specific Commitments of StatesThe legal regime governing the liberalizingcommitments o f Members is mostly based uponArticles XVI and XVII o f the GATS. The actual degreeo f liberalization under the GATS is depending on theservices included in a country's schedule. In otherwords, the Agreement only applies to those serviceswhich each individual state has agreed to accept in itscommitment to liberalize. Most countries found itrelatively easy to make such commitments concerninga range o f value-added telecom services (i.e. on-linedata processing, on-line data base storage and retrieval,electronic data interchange, e-mail and voice mail), andas a result o f the Uruguay Round they were alreadycovered by 44 Schedules, representing 55 WTOmember states. The problem of the liberalization of”basic” telecommunications services was dealt with onthe basis o f the Ministerial Declaration on BasicTelecommunications and the Annex on Negotiations onBasic Telecommunications which allows countries tomake MFN exemptions at a later stage than foreseen inthe GATS.The agreement on the problem o f how to define”basic telecommunications” on the national level wasset aside in the negotiations which included all publicand private telecommunications services concerningend-to-end transmission of customer supplied

POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATION189information, for example, the simple relay o f voice ordata from sender to receiver. The commitments made in1997 cover not only basic telecommunications servicesprovided over a network, but also services providedthrough resale over private leased circuits. Marketaccess includes the trans-border supply oftelecommunications as well as services offered by theestablishment o f foreign companies, or commercialpresence, including the opportunity to own and operateind ep en d en t telecom m unications netw orkinfrastructures. Thus, the agreement, inter alia, coversvoice telephony, data transmission, telex, telegraph,facsimile, private leased circuit services, such as thesale or lease of transmission capacity, fixed and mobilesatellite systems and services, cellulartelephony, mobiledata services, paging, and personal communicationssystems.At the heart of the agreement is the consequencethat the liberalization must be extended to all WTOmember states on a non-discriminatory basis accordingto the MFN principle. However, in accordance with theaforementioned legal framework, at the end o f thenegotiations, 9 WTO member states filed lists ofexceptions services to the most-favoured-nationprinciple concerning measures affecting trade in basictelecommunications.With regard to satellite services, by February 1997SO states had made full offers guaranteeing access forall domestic and international satellite services. Inaddition 6 countries guaranteed market access forselected satellite services and facilities (Brazil,Columbia, Ivory Coast, Ghana, Hong Kong and SouthAfrica). O f the 69 parties to the agreement, only 13developing countries made no market accesscommitments for satellite services.11EvaluationIn economic terms the agreement is a landmark in theliberalization of international trade. In 1995 the revenue11 See G.C. Hufbauer/E. Wada (eds) , Unfinished Business:Telecommunications after the Uruguay Round (1997), p. 21 etseq.from global telecom services was about US$601.9billion (2.1 per cent o f global GDP), with agrowth rateof7 per cent. While the 130 member states ofthe WTOcover about 95 per cent (US$570 billion) of the globaltelecom revenue in 1995, the about 70 WTO memberstates that have entered into commitments account for91 per cent of global telecom revenues and 82 per centof the world’s telephone main lines. About 77 per cento f the global market in 1995 was shared by theEuropean Union, the United States, Japan, Canada andAustralia. Prior to the 1997 agreement, only about 20per cent of the global telecom services market had beenopen to competition.Moreover, on 26 March 1997, 40 WTO memberstates, representing 92.5 per cent o f world trade in thissector, agreed to implement the WTO MinisterialDeclaration on Trade in Information TechnologyProducts (ITA).12 Beginning on 1 July 1997, customsduties on computer and telecommunications productswere agreed to be reduced and eliminated altogether bythe year 2000, applying to all WTO member states. TheITA includes computers, semiconductors, telecomshardware and computer software which are the conduitfor the delivery of information, and its purpose is tomake such products more affordable, also in the poorercountries to improve living standards, health andeducation. The ITA covers almost US$ 600 billion inworld trade. The ITA accord and the telecomsagreement reached one month earlier together coverinternational business worth more than US$ one trillion.This is about the equivalent o f world trade inagriculture ($444 billion in 1995), automobiles ($456billion) and textiles ($153 billion) collectively. In viewof the fact that trade in information technology isgrowing faster than world exports in the past ten years,these two sectors taken together are the backbone of theglobal economy and, in quantative terms, theirliberalization amounts to a new trade round.Developing countries, of course, have much lowershares o f global telecommunications activities thanindustrialized countries. However, in 1995 certaincountries, such as Korea, Brazil, Mexico andArgentina, ranked among the top ten in shares of global12 See WTO Focus, Newsletter March 1997 No. 17, p. 1 et seq.

190 POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONtelecom revenue. In international telephone traffic,Hong Kong ranked fifth and Mexico and Singaporeranked among the top ten. In terms o f investment intelecommunications Korea ranked fourth, whileArgentina, Korea and India belonged to the top ten. Asto the number of telephone main lines, Korea wasamong the top five and Turkey, Brazil, India andMexico were among the top ten. It is also worthmentioning that the growth rates in thetelecommunications sector in developing countries areoften higher than in industrialized countries. Still thereare many places in the world where people have neverused a telephone.The agreement does not cover markets of stateswhich have not yet acceded to the WTO (i.e. Russiaand China), but part of the accession negotiationswould include commitments in the services sector, suchas telecommunications, to avoid the ’’free riderproblem”. On the other hand, there is also ample roomfor disagreement on the correct interpretation of theprovisions of the GATS, the TelecommunicationsAnnex and of the precise meaning of the nationalschedules among those member states which have madesuch commitments. Fortunately, the new World TradeOrganization has not only created a single institutionalframework for the numerous multilateral tradeagreements, but has also established a new integrateddispute. settlement order and a trade policy reviewmechanism applicable to all multilateral tradeagreements. The dispute settlement system, including aDispute Settlement Body and a Standing AppellateBody to review panel decisions, is much more’’judicialized” than the previous GATT model andplaces emphasis on the legal and binding elements ofthe resolution on international trade conflicts. However,it is in the process of being tested at the moment andtelecommunications disputes, including satelliteservices, are very likely to emerge as an importanttesting ground in the future.Summary of the Presentation to theSession entitled “PossibleInternational RegulatoryFrameworks, Including LegalConflict Resolution in ExpandingSpace Commercialization”The presentation selects two main aspects of theproblem o f developing adequate international regulatoryframeworks in view o f the commercialization andprivatization of outer space activities (which in factmainly involve satellite communications, launchingservices, and, to a certain degree, remote sensing).1. The first aspect concerns the role and legal statuso f non-state actors. This is a problem that hasfound increasing attention in general internationallaw. With regard to space activities, - apart fromprivatized international organizations - , the role of(multinational) companies, viewed as the drivingforces o f the current process o f economicglobalization, is o f particular interest. As far asspace related activities are concerned, this isparticularly so because o f the significant private(and often transnational) investment made insatellite communications and other forms oftelecommunications linked thereto. In terms ofgeneral international law, as it stands at themoment (de lege lata), the following propositionsare made in this respect:a) Companies, whether national enterprises or“multinationals”, are formally still not “subjects ofinternational law” in any meaningful sense o f theterm, although there is an increasing limitedindirect recognition o f their legal personality ininternational law granting them rights and legalstanding in certain international dispute settlementmechanisms. As such, however, their existence isbarely recognized by general (public) internationallaw, in contrast to a few numbers o f special “softlaw”instruments aiming at the regulation andcontrol of their transnational activities. Newdevelopments, however, have arisen with regard tothe corporate liability of companies for disrespecto f certain principles and rules of international law,

POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATION191especially in United States in pending litigationunder the Aliens Tort Claims Act.b) They are not parties to multilateral and bilateraltreaties in the sense o f international law; so-called“state contracts”or “internationalized contracts” arenot treaties within the meaning of international lawand have not elevated them to “partial subjects ofinternational law”c) Private enterprises sometimes have a formalconsultative or, more often, an informal lobbyingfunction in the negotiation of certain types ofinternational treaties relevant to their commercialactivities. It is likely that this role will be expandedin the future for two reasons. First, there is a trendin the United Nations to seek stronger cooperationwith the private business sector for financial andother reasons. Second, business associations arerecognizing the need to become more active on theinternational rule-making level to balance thepolitical influence of environmental and humanrights NGOs.d) In practice, the influence of private businessinterests and their associations (i.e. theInternational Chamber o f Commerce, ICC) hasbeen particularly apparent in the field ofinternational commercial law, or the law governinginternational business transactions in their variousmodes and forms, including foreign investment.The distinction between public and privateinternational law - leaving aside the controversialconcept o f a lex mercatoria - , however, hasincreasingly become blurred. In the field of spacelaw, this enhances the need for a broader definitionof the scope of the subject. It must include relevantaspects of national public and private law andprivate international law. Moreover, with regard tothe public international law aspects, theinternational regulatory fram ew ork o fcommercialized outer space activities can no longerbe more or less restricted to the special outer spacetreaty framework and the space-related rules of theITU. The framework must also include the relevantrules of international economic law, such as, forexample, laid down by the World TradeOrganisation (WTO), especially as regards theliberalization rules on satellite communicationsservices in the Telecommunications Annex to theGeneral Agreement on Services (GATS).e) The development of an appropriate internationalregulatory fram ework in view o f thecommercialization/privatization of outer spaceactivities requires a more integrated approach inlaw-making. It is therefore proposed thatUNCOPUOS in its legislative activity, not onlystrengthen its coordination with the ITU. It shouldalso attempt to involve more systematically theprivate business sector and “civil society”on aconsultative basis, and coordinate its regulatoryactivities with those of international bodies activein international economic law-making, such as theWTO or WIPO.2. The second selected aspect concerns the issue ofappropriate dispute settlement mechanisms. In thisrespect, the following propositions are submitted:a) An adequate general framework for disputesettlement mechanisms, covering also the newdevelopment in commercial/privatized outer spaceactivities, has already been worked out in the finaldraft of the Revised Convention on the Settlementof Disputes Related to Space Activities adopted bythe International Space Committee of theInternational Law Association (ILA) at the 68thILA Conference, held in Taipeh in 1998. It isrecommended that this draft be accepted as a basisfor discussion and be made an agenda item ofUNCOPUOS.b) In addition, in view of the relevance of thetransnational provision o f services (and relatedforeign investment by enterprise alliances) in thefield of telecommunications in general and satellitecommunications in particular, the following tworecommendations are submitted. First, it isrecommended to study more in detail the relevanceof the new (inter-state) dispute settlementmechanism of the WTO. Second, it is proposed toexamine which lessons should be drawn from thevarious forms of private investor-state dispute

192 POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONsettlement mechanisms to be found in recent bilateralinvestment protection treaties, and in multilateralinstruments, such as the NAFTA agreement, theEnergy Charter Treaty, or the (now shelved)OECD draft Agreement on Investment (MAI).Commentary PaperV.S. ManiThe summary of the paper indicates that it focuses on“two main aspects o f the problem of developingadequate international regulatory frameworks in view ofthe commercialization and privatization of outer spaceactivities". The outer space activities covered,principally, are: "satellite communications launchingservices and, to a certain degree, remote sensing".The role and legal status of nonstateactorsIt is submitted that the Reparations case (1949) laysdown a functional approach to the concept ofinternational personality of entities under internationallaw. Therefore the relevant questions to ask are:Does an entity require a degree of internationalpersonality to enable it to perform its functionseffectively? If so, how much o f legal personality shouldit be attributed to? If the protection of national ortransnational enterprises is achieved by certainprincipal mechanisms to ensure access to resources,freedom o f activity, and settlement o f disputes, with anacceptably corresponding level of internationalresponsibility for the adverse consequences o f theiractivities, is it not an adequate recognition o f their legalpersonality? Indeed, the "freedoms" of access andactivity must be exercised with due regard to the rightsof others and the essential interests o f nations (peoples)whose resources are directly involved. And no freedomwithout responsibility and liability.Further the role played by private enterprises mustbe subjected to substantive, rather than a formalistic,assessment. Control and power wielded and exercisedby these enterprises, both nationally and internationally,are of awesome order, having little correlationship withthe responsibility they are obligated to fulfil. Therefore,asking for an equation o f formal status with states forthese enterprises is like having the cake and eating ittoo. The private enterprises must be made to realizetheir social responsibility both domestic as well asinternational corresponding to the access to resources,markets and profits they enjoy deriving from thenational and international legal and economic order.In addition to the space activities identified, the issueso f space insurance should also be examined. Theseissues include the nature o f international insurancemarket, and modes of disputes settlement.Appropriate disputes settlementmechanismSince the 60's, there has been an increasing recognitiono f the need for international disputes settlementmechanisms participated by the enterprises involved intransnational activities. The Permanent Court ofArbitration came up with a set o f rules of procedure forarbitration o f disputes between States and non-Stateentities. The 1965 World Bank Convention on theSettlement of Investment Disputes coupled with WorldBank sponsored investment agreements with statesmade arbitration of disputes between states and privateenterprises quite normal. These developments tookplace, in addition to the role played by non-state disputesettlement mechanisms like the ICC arbitration facility.The UNCITRAL came up with model rules forconciliation and arbitration. Indeed, at the domestic lawlevel, in these days of increasing globalization andliberalization the law has now started promotingconciliation and arbitration to resolve commercialdisputes, by even reducing the role of the judiciary tothe minimum.It is against this background that the issue ofinternational settlement mechanism or mechanisms forspace activities should be considered.

POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATION193One of the recent examples of a dispute settlementmechanism to which private enterprises have a directaccess is the Law of the Sea Tribunal. While this mayserve as a model for resolution o f space activities, therecan be overlapping claims to jurisdiction by almostevery international organization having a role in spaceactivities, and more importantly by WTO. Thissituation may need to be remedied.Furthermore, WTO disputes settlement body(D&B) itself needs to be reviewed. There was atendency on the part o f the GATT DSB to decline to sitin judgment over the legality of unilateral actions ofStates in derogation of the principle of freedom ofinternational Trade which only remotely connected withthe justifications or exceptions claimed (Article XXI).WTO DSB should be formally transformed into atribunal and it should have the power to adjudicateupon such matters as the ICJ did in the Nicaragua Case(1986). Indeed, WTO DSB need not be bound byGATT DSB’s precedents on such matters, since WTODSB’s decisions are binding on parties, whereas theGATT DSB’s decisions were recomendatory in nature.Summary ReportMajor IssuesThe session recognised that significant changes anddevelopment in outer space activities, having particularregard to satellite communication, launching servicesand remote sensing, gave rise to the need of adequateinternational regulatory frameworks in view o f thecommercialisation and privatisation o f these activities;Noted that the first main aspect of the problemconcerns the role and legal status o f non-space actors;Noted that national or multinational enterprises areformally not subjects o f international law and they arenot parties to multilateral and bilateral international lawTreaties;Recognised the need to expand the role of theprivate enterprises in international law and in particularin international economic law through a more integratedapproach in law-making process;Noted that the second aspect o f the problemconcerns the need of an appropriate dispute settlementmechanism.RecommendationsRegarding possible international regulatoryframeworks, including legal conflict resolution, inexpanding space commercialisation it is recommendedto UNISPACE III:1. that UNCOPUOS and UNOOSA strengthentheir coordination with other relevantinternational organisations, particularly ITU,WTO and WIPO as well as with UNCITRAL;2. that UNCOPUOS and UNOOSA provideefficient means for input from and exchangewith private industry and its relevantinternational institutions such as theInternational Chamber of Commerce;3. that UNCOPUOS and UNOOSA startconsideration of elaborating an efficientmachinery for the settlement o f legal disputesarising in relation to space commercialisation.This consideration should take into account:a) the Revised Draft Convention on thesettlement o f Disputes Related toSpace Activities adopted by theInternational Space Law Committee ofthe International Association (ILA ),which deals with disputes involvingStates, international organisations, andprivate enterprises;b) existing Arbitration Rules used ininternational business practice for

POSSIBLE INTERNATIONAL REGULATORY FRAMEWORKS, INCLUDING LEGALCONFLICT RESOLUTION IN EXPANDING SPACE COMMERCIALIZATIONdisputes between private enterprisesand disputes between States andprivate enterprises in internationalcommerce and investment.

MAINTAINING THE SPACE ENVIRONMENTSESSION 8Chair: Ambassador Qizhi He (China)Coordinator/Rapporteur: Professor Maureen Williams (Argentina)

SESSION EIGHTMaintaining the Space EnvironmentDiscussion PaperDr. Lubos PerekAstronomical InstitutePrague, Czech RepublicIntroductionSpace activities have already had their impact on thespace environment. It cannot be returned to the pristinestate of the times before the first launch of a spacecraftand before the first firing o f a rocket. The spaceenvironment has, however, to be maintained in a statefit for space activities of future generations. The taskbefore our generation is rather difficult. Many o f theactions taken up to now, cannot be reversed. There isno easy and proved way o f removing inactive objectsfrom space. Moreover, the natural decay, in particularof objects which are at present at high orbits, may takevery long times, longer than the history of humanity.In the following paragraphs the pollution o f thespace environment has been discussed, in particular bysolid bodies, such as space debris, by gases, such asexhaust products or fuel remnants, by radio wavesencroaching on bands reserved for scientific research,and by light affecting astronomical observations. Also,the balance between the benefit and detriment of somespace missions has been briefly considered.The natural environment: theatmosphereThe lowest layer of the atmosphere, the troposphere,extends from the ground to about 10 km in polarregions and to 15-20 km in the tropics. It ischaracterized by a decrease of the temperature withaltitude. Above that is the stratosphere where thetemperature is increasing with altitude. It reaches up toabout 55 km. A very important feature is the ozonelayer at about 25-50 km altitude. It protects life onearth from solar ultraviolet radiation. The next layer,the mesosphere, extends up to 80-95 km. At thesealtitudes the atmosphere becomes sufficiently ionizedby the solar ultraviolet radiation so that the freeelectrons affect the propagation of radio waves. It iscalled the ionosphere. It reaches to an indefinite heighto f several hundred kilometres. In the outermost layer,in the magnetosphere, reaching up to some 60,000 kmin the direction towards the Sun and much further inthe opposite direction, the magnetic field determinesthe physical properties. Its size and shape is affectedby the solar wind. An important feature are the VanAllen radiation belts, located at altitudes o f about5,000 and 20,000 km respectively. They pose hazardsof excessive irradiation to astronauts.What happens in the upper layers o f theatmosphere, affects, sooner or later, also theunderlying layers. Since the upper atmosphere is highlyrarefied, any release o f gases becomes relativelyimportant and changes the density and composition ina wide neighbourhood.On the whole, however, the atmosphere is a verylarge, powerful and sturdy machine which is capableto adapt to all natural effects whether they are comingfrom the ground or from the interplanetary space.Among the most important effects is the influx ofmeteoroids. These are solid bodies o f all sizes,

198 MAINTAINING THE SPACE ENVIRONMENTcomposed mainly of silicate minerals or iron andnickel, or both, minerals and metals. Their total massentering the atmosphere has been estimated at 170thousand tons per year, including 10 thousand tons ofmetalsThe space environmentFor the purposes of this paper we shall understand asspace environment those regions around the Earthwhere artificial satellites can survive for at least oneorbit. The lower limit is at approximately 100 kmaltitude. That value is a reasonably goodapproximation for most existing satellites. The precisevalue o f the limiting altitude depends on theconstruction o f a satellite, being lower for heavycompact objects and higher for lightweight objectswith a small mass per area, such as inflated balloons.The limiting altitude depends also on the actual solaractivity. If the activity is high, the temperature of theatmosphere gets higher than normal and so does thebraking force on satellites. Consequently, satellitestend to de-orbit at a higher altitude than at times witha normal solar activity.The outer limit o f the region where Earth satellitescan exist is far beyond the orbit of the Moon, atapproximately 1 million kilometres from the Earth.Objects beyond that distance do not orbit around theEarth, they orbit around the Sun.Orbits o f most satellites, including mannedspacecraft, lie in Low Earth Orbit, LEO, between 200-2000 km altitude. In High Earth Orbits, HEO, beyond2000 km altitude, the number of objects isconsiderably less. There are, however, two regionswhich are more populated than others. One is a beltfavoured by navigation satellite systems at around20,000 km, the other is the geostationary orbital belt,GEO, at around 36,000 km. GEO is mostly populatedby telecommunication satellite systems and bymeteorological satellites. Beyond the GEO there areonly the apogees of satellites of the Molniyacommunication system at around 40,000 km, orbits ofa few scientific satellites, and from time to time apassing interplanetary probe.The total number o f active satellites is around 600.Out of that number about 240 are in the GEO. Thesenumbers are in a strong contrast with the total numberof objects. There are at present in orbit over 9,000objects larger than 10 cm, over 100,000 o f objectsbetween 1-10 cm, and tens of millions o f objectssmaller than 1 cm.The lifetimes o f satellites are determined mainly bythe drag o f the rarefied atmosphere. The drag makesthe satellites to spiral down and eventually to decay.The stronger the drag, the steeper is the spiral and theshorter is the remaining lifetime. De-orbiting objectsget heated by friction with atmospheric gases and mostof their mass evaporates. Only the most compactfragments reach the ground, their shapes disfigured bythe high temperature and by the impact.At 200 km altitude the lifetimes are o f a few days,at 600 km up to 30 years and at the highest altitude ofLEO, at 2000 km the lifetimes attain 20,000 years.Satellites at the geostationary orbit are permanentfeatures, their lifetimes exceeding several millionyears.Space debrisDetails on the measurements, on modelling of thespace debris population and on space debris mitigationmeasures appeared in the Technical Report1 of theScientific and Technical Subcommittee. The Reportwas prepared with the assistance o f the Inter-AgencySpace Debris Coordination Committee, IADC,consisting of representatives of space agencies of mostactive space faring countries. It lists measures forreducing the risk posed by space debris. Thesemeasures have to remain within technical as well asfinancial possibilities o f the agencies. Otherwise theywould make future activities prohibitively difficult andcostly.The final version of the report, as adopted by theScientific and Technical Subcommittee in 1999, was1 Technical report on space debris of the Scientific andTechnical Subcommittee, A/AC. 105/720.

MAINTAINING THE SPACE ENVIRONMENT 199considered, besides the IADC, also by the InternationalAcademy o f Astronautics, IAA, representing thescientific community. The Report will be furtherconsidered by the Committee on the Peaceful Uses ofOuter Space, COPUOS. That committee will decidewhat further steps should be taken in dealing with theproblem o f space debris.The Report concludes2: "Space objects withdiameters larger than 10 cm in LEO and larger than1 m in GEO can be observed and tracked. More than8,500 catalogued objects are in Earth orbit. Thenumber o f in-orbit catalogued objects has beenincreasing at a relatively linear rate fo r the pastseveral decades. ... The trends and tendenciespredicted fo r the future orbital debris environmentare qualitatively in agreement ... The limitation o fmission-related debris and the prevention o faccidental explosions have been found effective andhave already been introduced to some extent. Also,the transfer o f GEO spacecraft into disposal orbits atthe end o f their active life is already customarypractice. ... For some satellites on long lifetime LEOorbits, a transfer to shorter lifetime orbits is plannedat the end o f their active life. Such procedures, ingeneral, could be most effective. ... Since most o f themitigation measures introduce some burden tomissions, it would be beneficial i f the same mitigationprocedures are considered globally. ”“In most cases, man-made space debris todayposes little risk to the successful operations o fapproximately 600 active spacecraft now in Earthorbit. However, the known and assessed population o fdebris is growing, and the probabilities o f potentiallydamaging collisions will consequently increase.Because o f the difficulty o f improving the spaceenvironment with existing technologies, theimplementation o f some debris mitigation measurestoday is a prudent step towards preserving space fo rfuture generations .... ”Questions arising from the growing number ofsatellites in orbit have been also considered by theFifth International Space Cooperation Workshop“Solving Global Problems”, organized by theAmerican Institute of Aeronautics and Astronautics,AIAA, was held at Bermuda, 11-15 April 19993. Theworkshop adopted several recommendations whichhave been presented recently to the Technical Forum.This session can either express its support to some ofthe recommendations or it can formulate its ownrecommendations. For the convenience o f this session,selected recommendations o f the AIAA workshopfollow:1. On the work of the COPUOS done withassistance o f the IADC and the IAA:"The Workshop participants strongly supportwork being done by the UN, the IADC, the IAA, andothers to develop guidelines designed to minimize thecreation o f new debris objects. ”“The Workshop recommends that existing andfu ture debris minimization guidelines be applieduniformly and consistently by the entire internationalspace faring community. In addition, governmentlicensing agencies are encouraged to promote suchcompliance among the space community in theirrespective countries. ”“In addition to minimizing the creation o f newdebris, the problem o f on-orbit debris must beaddressed Mitigation o f debris on orbit can beaddressed in at least two ways. First, by moving largedebris, such as satellites at the end o f operationallifetime, out o f the way o f active satellite orbits andsecond, by the active removal o f visible, butuntracked smaller debris. Some aerospace companiesare not including de-orbit capabilities on theirspacecraft, and hence these spacecraft will contributeto the problems o f orbital congestion and debris wellpast their operational lifetimes. ”2. On de-orbiting of spacecraft:“Governments and the commercial sector areencouraged to promote the application o f technical2 For a verbatim version and for details, the reader is referredto the original document.3 For details and justification see the Report on the workshoppublished by the AIAA and presented in the Technical Forumon 20 July 1999.

200 MAINTAINING THE SPACE ENVIRONMENTsolutions to the de-orbiting o f spacecraft, a practicewhich is in the best interest o f all users o f operationalorbits. ”3. On de-orbiting of small untracked objects,reacting to the method proposed by Ivan Bekey toremove small debris by irradiation with a weak laserbeam:“While the economic justification andconsequences on the space environment o fimplementing debris removal technologies must bebetter understood, continued development o f suchtechnologies should be encouraged. Governments arestrongly encouraged to invest in basic precompetitivetechnology that could be furtherdeveloped and applied by commercial operators. ”4. On collision warning and mitigation as a meansof reducing the number of space debris:“An internationally recognized entity should bedeveloped to provide reliable, timely, generallyavailable collision warning and mitigation servicesfo r launch, in-orbit, and end-of-life operations. ”“International legal provisions should beinvestigated to enable providers o f collision warningand mitigation services to be responsible fo rcoordinating with the parties involved in closeapproaches, and to assure that satellite operators areaware o f the situation and can jointly developappropriate avoidance manoeuver. ”“The service provider concept should be reviewedand refined by an international body or committeethat includes representatives o f both industry andgovernment. Service provider concepts includinggovernment, commercial, multiple entity, andconsortia should be evaluated. ”5. On the Registration Convention:Recognizing fragments as space debris is easy bytheir shape and size but it is difficult to recognize asspace debris those objects which are non-functionalbut remained more or less intact. Inactive satellitescannot be told from spare satellites waiting for theirfuture activities or from scientific satellitesinvestigating gravitational and other forces. It is onlythe owner or operator of a satellite who can decide atwhat moment his satellite has lost its value. It shouldbe his duty to inform other users of space of the fa c t.There is a means to make such announcements throughthe provisions of the Registration Convention. A stateowning a satellite may provide the Secretary Generalof the UN with additional information concerning aspace object4. Although it is not an explicit obligation,some states have availed themselves of the opportunityand have announced the cessation of activities of itssatellites. A general adoption of this practice would behighly beneficial.In fact, only 40 States adhere to the RegistrationConvention, by which launching States declareresponsibility for their spacecraft. Several internationalorganizations launching or operating satellites do notregister their satellites with the UN because fewer thanhalf of their Member states are parties to theConvention. As a consequence, the UN Register ofObjects Launched into Outer Space is incomplete,which restricts its usefulness. Another issue arisesfrom the fa c t that the UN Register is constituted fromgovernmental announcements, which are of differentformats, use different designation of objects, and ingeneral contain different information. There is no easyway to correlate the governmental announcements, toestablish a time sequence o f launches, or to find whichsatellites have been registered and which partyacknowledges responsibility for them. Betterimplementation o f the Registration Convention isessential:“Action should be taken to implement theRegistration Convention:As a high priority, the UN should work toincrease the number o f States and internationalorganizations actively adhering to the Convention,andThe UN COPUOS needs to request the Office o fOuter Space Affairs to obtain required information on4 Registration Convention, Article IV,2.

MAINTAINING THE SPACE ENVIRONMENT 201space objects and to maintain a comprehensive andfu lly updated register on its websites. ”6. On standards and recommended practices:Increasing numbers o f satellites, particularly inLEO, may necessitate an international regulatoryframework for standards and recommended practicesfor launches and for space objects that is morecomprehensive and coordinated than existing processesfor ensuring an orderly, reliable, and safe environmentfor beneficial space activities. Such a frameworkshould be developed in coordination amonggovernments and industry. A credible study is neededto provide a common understanding o f existingpractices and their effectiveness in meeting futureneeds.“An appropriate organization with internationaloutreach, such as the AIAA, o r the IAA, should surveyexisting organizations and practices fo r regulatinglaunches and space objects, estimate probable futureexpansion o f these activities, identify and analyzeoptions fo r an international regulatory framework(including study o f traffic management systemsdeveloped by the International Civil AviationOrganization, ICAO) that can formulate standardsand recommend practices to ensure safe, efficient,and beneficial services, and report to the COPUOSas soon as practicable. This survey could thenbecome the basis fo r international action. ”7. On the term “space debris:In the existing instruments of space law nomention has been made of space debris. Theinstruments use the term “space object” or “objectlaunched into outer space”. No distinction is madebetween valuable devices performing useful serviceson one hand and useless non-functional objects, suchas fragments or inactive satellites on the other hand.Yet it is evident that law should protect valuableproperty and should facilitate the disposal of unwantedfragments and useless objects.“The International Institute o f Space Law, IISL,is requested to study the definition o f “space object”and other relevant terms and recommend appropriatefurther steps to the UN. ”8. On liability for space debris:The international management of orbital resourcesthrough a more comprehensive system of identifyingand tracking spacecraft and orbital debris and theestablishment o f collision avoidance services raises anumber o f issues related to international liability. TheLiability Convention provides for compensation fordamage caused by the space objects o f a launchingState to the Earth, aircraft in flight, persons, or otherspace objects. It is unclear how orbital debris would betreated under this Convention. There remains aquestion of what, if any, liability a collision avoidanceprovider would have in the event that a failure of theservice resulted in damage caused by collision withanother space object or space debris. It could make adifference depending on whether the service provideris a private or government entity.“The IISL is requested to study the issue o fliability and to initiate appropriate further steps. ”Issues 7 and 8 have been addressed to the IISL,not to UNISPACE III. They have been mentioned herefor the sake of completeness and because they touch onthe subject o f this session.Impact of debris on the atmosphereEvery year about 500 pieces o f trackable debris and avery large number of debris too small to be detected,decay in the atmosphere. The less compact partsevaporate and the particles remain in the atmospherefor fairly long times. The contamination, even bymetals, is not critical compared to that by naturalbodies. Meteoroids pass through the atmosphere invery large quantities, as stated in the section on theatmosphere. The contribution by space debris is just afraction of the amounts o f meteoroids. The total massof all artificial objects in earth orbit is between 2000and 3000 tons and only a few percent of these isdecaying every year. The impact of debris on theatmospheric gases is negligible compared to the impactof bodies of natural origin.

202 MAINTAINING THE SPACE ENVIRONMENTMissions of questionable benefit5The Outer Space Treaty contains in its Article I theprinciple that the exploration and use of outer spaceshall be carried out for the benefit and in the interestso f all countries, irrespective of their degree of scientificand economic development. This statement - of highmoral value - tacitly assumes that it is possible to findout what is the benefit and interest o f all countries. Inpractice, however, a benefit to one user of space maybe a detriment to someone else. E.g., commemorativemissions by conspicuous space objects reflecting lightwould indeed draw the attention o f the public butastronomers strongly object whenever their valuableand unique observations have been destroyed orcompromised by the spectacle. Another example: Asatellite illuminating fields during the night mightincrease the yield of the crop but, without a properenvironmental assessment, such practice might lead toundesirable effects, such as proliferation of rodents orto extinction of forms of life which need a daily darkperiod for survival.Although an absolutely satisfactory solution doesnot exist, it is possible, as it is done in other situations,to balance the advantages and drawbacks and to decideaccordingly. What is needed, is an institutioncompetent to consider the matter, to arrive at areasonably good solution and to make its judgmentrespected by space users. Could some cases be solvedwithin the framework of national law regulations?Would other cases require a ruling by the InternationalCourt of Justice? It is proposed to bring this point tothe attention o f UNISPACE III under the followingrecommendation:“With regard to the increasing number o fsatellites and to the necessity to maintain the spaceenvironment in a state fit fo r space activities o f futuregenerations, it is recommended to launching States toconsider, from a global point o f view, the balance o fbenefits and detriments o f planned missions and totake an appropriate decision concerning therealization or modification o f such missions.Exhaust gasesThere is no doubt that exhaust gases o f spacelaunchers pollute the atmosphere from the ground upto the altitude when the rocket engine is switched off.The question of how important is that effect wastackled by the French Academy of Sciences and theFrench National Air and Space Academy, ANAE. Astudy6 by the latter surveyed the nature of the effluentsemitted by space launchers, such as Ariane 5, thespace shuttle, or launchers using liquid oxygen.Homogeneous reactions lead to the following effects onstratospheric ozone: Local ozone is immediatelydestroyed but very soon its content is restored.Regional effects persist for several days: the chlorinelevel increases by a few percent and the ozonedepletion is less than 1%. Global effects o f 9 STS and6 Titan IV launchings per year would result in anincrease o f less than 0.25% in chlorine content of theatmosphere. The impact o f 15 Ariane 5 launches peryear would deplete the ozone level by 0.02%.Heterogeneous reactions on the surface of aerosols andaluminum particles add very little to that value.Also experiments o f rocket impact on atmosphericozone have no significant effect. And the impact ongreenhouse effect, mainly by carbon dioxide and watervapour, was found to be negligible. Summing up, thestudy concludes that quantities produced by present orfuture space launchers amount to much less thanquantities produced by other human activities or bynatural sources, such as large volcano eruptions.In this respect, the atmosphere and its constituentsare not sensitive to space activities or, for that matter,to air traffic. Natural phenomena occur on a muchlarger scale.5 For more details see L. Perek: Must space missions bebeneficial? Proc. 35th Coll. On the Law of Outer Space,Washington, AIAA, p. 303-306, 1993.6 Impact of Aircraft and Space Launchers on the Atmosphereand Climate: Recommendations, ANAE, Dossier No. 13,1998.

MAINTAINING THE SPACE ENVIRONMENT 203Spillover of radio wavesAstronomy needs for its research observations on allwavelengths which are accessible to present daytechnology. They extend from very hard x-rayradiation at the short end to the entire spectrum ofradio waves. The radio signals which are received fromcelestial bodies in our own and other galaxies areexceedingly fa int. Large radio telescopes are neededfor their detection but the dimensions of the antennashave a limit given by technology of about 100 mdiameter. Still larger dishes can be built in fixedpositions, such as a valley in Arecibo, Puerto Rico,which hosts a parabolic dish of 300 m diameter. Onthe other hand, radio astronomy has become anextremely important branch which brings uniqueknowledge on very distant celestial bodies. For thisreason, selected frequency bands have been allocatedby the International Telecommunication Union, ITU,to radio astronomy. Most of the bands are quitenarrow, just covering important spectral lines, someare shared with other services but all are very close tobands used for strong telecommunication signals.Radio waves are carriers of telecommunications,an extended and highly lucrative application of spacetechnology, used for broadcasting television, mobiletelephones and navigation systems for ships andaeroplanes. The ITU is swamped with requests forassignments o f new bands. It happens sometimes thattelecommunication signals, or side lobes, spill over intothe radio astronomy bands drowning the feint signalscompletely.The following recommendation, addressed toUNISPACE III, is proposed:Support should be expressed to the principle o freserving necessary frequency bands fo r futureresearch o f distant natural sources o f radio signals,and to their protection from spill-over.Pollution by lightThe strongest pollution of the night sky comes fromsources on the ground, such as street lights oradvertising. A local but potentially highly harmful lightpollution is caused by space debris reflecting sunlight.Most wide-angle astronomical photographs show todaytraces made by space debris. These traces may destroyor compromise the value of observations which may beunique or impossible to repeat. Astronomy wouldbenefit from all measures which are taken to reduce theamount of debris. Moreover, designers of spacecraftshould avoid placing reflecting surfaces on the outsideof spacecraft which produce specular reflections. Asan example, Iridium satellites provide short flashes oflight, mostly exceeding the brightness of planets.Sensitive astronomical light detectors aimed at faintlight sources could be destroyed if illuminated by anIridium flash. The flashes are not rare events. On everyspot on the globe they occur up to 4-5 times a night. Itis a beautiful sight but may cause losses to science.The matter was treated at the IAU-COSPAR SpecialEnvironmental Symposium “Preserving theAstronomical Sky”, held last week.The following recommendation should be adopted:The principle o f preserving the dark night skysuitable fo r astronomical research should be takeninto account in planning space missions.ConclusionThis session is a unique opportunity to informUNISPACE III of the views o f the IISL on questionsconnected with the maintaining of the spaceenvironment in a state suitable for future spaceactivities. Another such opportunity might have to waituntil the next UN conference on space, i,.e., somefifteen years. Therefore the recommendations adoptedhere could deal also with matters of a long perspective.Commentary PaperG. LafferranderieMr Chairman, Madame Rapporteur, ProfessorWilliams, Professor Perek, Ladies and Gentlemen,

204 MAINTAINING THE SPACE ENVIRONMENTLet me first congratulate Professor Perek on hiscomprehensive report. I really do not intend tocomment on this report. I will do my best to offer myown perspective on the subject and propose a possibleway of making concrete progress. It is ambitiousenough!I believe - indeed we are all o f the same opinion -that we are at a crucial point on a specific andimportant issue affecting the near-term future of spaceactivities and that this is also the point to reconsiderand strengthen the role and scope o f internationalspace law and o f the COPUOS.Some factsI would like to emphasize the following in particularand the urgency for taking action.(a) Space debris is a natural and immediateconsequence of the exploration and use of outer spaceby man-made objects. It is created by and - untilperhaps new ways and means are discovered - goeshand-in-hand with the growth o f space activities, theincreasing number o f satellites, space objects andlaunchers. Space activities - like other high-technologypursuits - create risks; and first and foremost, forthemselves. All this we know and have always known.I cannot criticise the drafters o f the Outer SpaceTreaty for omitting to give a clear definition of spacedebris from the purely legal viewpoint (I do not knowwhether in other fields we have definitions of aircraft,debris; the question is not the same, some will say.)Any use of high-technology activity, anydiscovery, particularly that giving rise to a broadexpectation o f improved living conditions on Earth,has never been set aside in view o f the potential risks.We have been amply aware for a long time that thoserisks - on Earth and in space - are set to becomegreater and greater ( ”le temps des cerises...” hascome!)7. Some space agencies have, to their credit,7 ‘Cerise’: a French defence satellite that collided with an Arianeupper stage on 24 July 1996.undertaken studies and become engaged in takingmitigation measures.(b) What now?We now have more and more constellation-typesatellites, essentially operating in low earth orbit, andsmall (micro or nano) satellites. Those regions offeringthe biggest potential for commercial activities are themost polluted. The large increase in space traffic,p articu larly fo r com m ercial applications(communications, Earth observation, etc.), will furtherincrease the risk of damage.The international space station, its assembly andoperation, with humans on board, will dramaticallyraise the stakes. We are fully aware that the lives ofthese people will be at risk (on-board or during EVA,a very small piece o f debris impacting the spacestation, or what’s more an astronaut’s suit, could causeserious damage or injury). We know that already somemanoeuvres have proved necessary to avoid possiblecollision.(Note 1: 13 June 1999- a collision was avoidedbetween the ISS and a component part of a Russianrocket. The on-board computer of the Station hadrefused to obey the command sent by the ground;hopefully the element o f the debris o f the launchvehicle was on a trajectory more than was foreseen.)We know too that one ISS module launched has noprotective shielding and could encounter problems insurviving collisions.(Note 2: After the explosion of a proton launcherseveral seconds after its launch from BaikanourKazakhstan, large pieces o f debris fell to the ground)Is the space around our planet becoming a junkyard, with dramatic consequences on Earth itself (interms of pollution? There is light pollution,frequencies, ashes, and other envisioned activities likepublicity and tourism in space. Professor Perekunderlines this and I agree with him. All those types ofpollution which are impacting the objectives ofactivities in outer space are expressed in article 1. S1o f the OST.

MAINTAINING THE SPACE ENVIRONMENT 205The accumulation of space debris has become anirreversible process. Limiting the amount of spacedebris by all possible means is not only a must; it is aduty.Among the valuable initiatives being takennationally, regionally and world-wide, I would like tomention in particular the IADC work and of course thestudies conducted by the COPUOS Scientific andTechnical Subcommittee, which recently produced itsbasic technical report. This means we have all we needto start giving this matter political and legalconsideration. There is now no justification fordelaying matters further and wasting yet more time.Again, it is a question of political will!Of course, with any complex and changingtechnical issue, there is always scope for more andmore study. But there comes a point at which we haveto stop using that argument particularly when webring the real economic and commercial concerns tothe fore. The stakes are higher than the mere technicaldetail. Clearly technical investigations have tocontinue, within the context of a set plan of actionpermanently under review.Is there really a legal vacuum?I do not believe so. Identifying possible improvementsin the situation, including what legal form(s) theymight take, is another matter. But we cannot forgetthat time is moving on and that several parties areinvolved at various levels. Any solution will require acombination o f good will and technical plus legalsolutions, by definition to be kept under permanentreview. We are all concerned and we should not giveundue priority to any single approach: devising thetechnical solution first or the complete bindingagreement first.As I have already stated, I am convinced wealready have the necessary basic provisions in existinginternational space law (liability, consultation, etc.),particularly in the Outer Space Treaty and LiabilityConvention8. Clearly, as Professor Kopal has pointedout, the Outer Space Treaty at present is too general(failing to provide definitions, for instance).Nevertheless, these space treaties do provide us with aframework and some basic starting points. Obviouslywe need clearer answers and we also need to recognisethat a specific situation calls for a specific legalregime. Special rules appear necessary, for examplewith regard to liability.While the COPUOS Legal Subcommittee has beenhitherto convening, the doctrine has continued to beactive and propose worthwhile ideas as it often has inthe past. For instance, action has been taken towardsstates for becoming parties to these treaties.(Note 3: Working paper submitted by France at thelast COPUOS meeting-Vienna, July 1999,14-16 July:concerning space debris and proposing a plan ofaction. COPUOS decided to send question ofgraveyard orbit to Scientific technical Subcommittee.)I should mention here the work of the InternationalInstitute o f Space Law (IISL) and its variouscolloquia, a joint IISL/ECSL session, the InternationalLaw Association (ILA) o f course and its draftInternational Instrument adopted at its Buenos AiresAssembly in August 1994, etc. This means that wehave enough material, very well prepared by experts,so we should not spend too much time reinventing thewheel (for instance, the legal definition o f spacedebris) but rather build on these ideas and structurethem.ProposalAssuming general recognition o f the space debrisphenomenon as an inevitable by-product of spaceactivities; considering, for the time being, theunavoidable growth of space debris and the dangers itis creating for the exploration and use o f outer space,particularly for astronauts; and considering that thebasic tenets of international space law are applicable8 See Kopal article, IISL colloquium (1996), reviewing thecurrent regulatory structure; see alsoarticle I, articles VI-VII-IX-I+ NPS Principles.

206 MAINTAINING THE SPACE ENVIRONMENTto the consequences o f damage created by spacedebris; considering all this, what role can still beplayed by the lawyers as a matter of duty? Whatconcerns are currently being inadequately addressed?There should be an internationally-agreed list andanalysis o f the relevant issues, such as ‘the definitionof space objects’, specific provisions o f internationalspace law applicable as a matter of principle(consultations, State liability) and the basic content ofthe Scientific and Technical Subcommittee and IADCreports (meaning), a list of other issues notablyconcerning space debris mitigation measures: reducingthe debris increase over time, preventing in-orbitbreak-up, de-orbiting and re-orbiting of space objects;protection strategies, shielding, collision avoidance,etc.(Note 4: International Astronomical Union (IAU)Role: observer to Science and TechnologySubcommittee should develop criteria andspecifications to be observed for safeguarding itsmission should participate in the consultations betweenall concerned actors under the guidance of COPUOSshould increase its relations with COPUOS LegalSubcommittee (the pollution as rightly pointed out inMilerek Report on light pollution, frequencies, etc.)IADC (Inter Agency Space Debris CoordinationCommittee) should increase relations with maritimewreckage committee (epaves du droit maritime))What would the result be? What should theobjective be? The objective must be an overall regimeapplicable to all space objects (civil and non-civil),whether for commercial use or not, to maintain faircompetition. What legal form should this take? Afurther Convention seems out of the question. AProtocol? Revision o f existing Conventions (onLiability and Registration)? I think not. Time is not onour side and discussing such texts and bringing theminto force would be a lengthy process (unless therewere strong political consensus).I would suggest a combined approach as (a)agreed upon by States: Principle approach similar tothat successfully followed for the Principles on the useof nuclear power sources (NPS) in space9; and (b)regulatory practices: technical ’’code of conduct”agreed by launching entities, public or private, satelliteand launcher manufacturers and operators. Setting outthe technical ‘recommended mitigation practices’ asprecisely as possible, this ‘code’ would have to beimplemented by all parties concerned to ensure faircompetition and backed by governments in the exerciseof their jurisdiction and control o f space activities. Aplayer unwilling to follow the agreed regime shouldbarred from the competition and these technicalconditions should form an integral part of the nationallicensing regime for space activities.The ‘Principles’ would complement the existinglegal provisions and could follow the pattern o f theNPS Principles: definition, the various States’obligations to inform, cooperate and consult, liability,settlement of disputes, relationship between therelevant Conventions to harmonise for instanceimplementation, national laws, etc. I would add twopoints: the role of COPUOS in monitoring andproviding access to a database established, funded andupdated by space authorities; and substantial provisionfor expertise and arbitration to settle disputes, (list ofarbitrators)I think we would save time if these two documentswere drafted separately, subject to any necessarycross-referencing. Draw on and benefit from thatwhich already exists, recent achievements and theinternational impetus notably demonstrated at theaforementioned conference and its workshops.In conclusion, Mr Chairman, the challenge fa c ingus is immense. Lawyers are able to face big challenges(the Outer Space Treaty!) and I would repeat that wehave important duties. Duties linked to two questions.What is the international law and its role in thiscontext? We know we cannot compare national andinternational law, their sources, their scope, their aims.Here the aim is to help establish better conditions forthe conduct of activities referred to as being for the9

MAINTAINING THE SPACE ENVIRONMENT 207benefit of all countries. These countries also each havetheir own duty ... a duty to each other.(Note: Unesco Declaration on the Safeguardingthe interests o f Future Generations, 1997)And it is up to the lawyers to point them in theright direction!Thank you very much for your kind attention.Commentary PaperKarl-Heinz BockstiegelIn my function as one of the Commentators o f thisSession 8, due to the limitations in time, I can onlypresent some few thoughts in addition to the excellentreport by Dr. Lubos Perek presented in advance of thisSession.Dr. Perek's report shows very well the growingpractical relevance and risks for the space environmentas well as from space for the earth environment. As weall know, many studies and meetings on the technicalaspects of particularly space debris have beenproduced and held such as those by the EuropeanSpace Agency and by the Scientific and TechnicalSub-Committee of COPUOS under the chairmanshipof Prof. Rex who himself is an expert on space debris.I can, therefore, concentrate on the legal aspectsinvolved. Also in this regard, quite a few papers havebeen presented over recent years many of which,however, have the weakness of being "only" bylawyers without participation o f technical expertswhile it is rather obvious that particularly with regardto space debris any legal consideration must be basedon the technical assessment o f risks and the technicalrealistic options for improvement.Therefore, an interdisciplinary approach seemsnecessary on this topic. The first interdisciplinarymeeting on space debris was probably the oneorganized by the Institute o f Air and Space Law ofCologne University in Cologne in 1998 the proceedingsof which have been published (Böckstiegel (Ed.),Environmental Aspects o f Activities in Outer Space -State of the Law and Measures o f Protection, Studiesin Air and Space Law Vol. 9, Köln, Berlin, Bonn,München 1990).The longest and most systematic work on the legalaspects of space debris has been done by theInternational Law Association (ILA), its Space LawCommittee, its biannual conferences, and somenational or regional meetings. Starting with arespective decision at the ILA Conference in Seoul in1986, the ILA Space Law Committee has been doingresearch and exchanging information and views andfinally preparing drafts regarding the protection of theenvironment from damages caused by space activities,particularly space debris. In doing so, the legal expertsin the ILA Space Law Committee have had the benefitof support from three Scientific Consultants, namelyDr. Lubos Perek from the Czech Republic who hasprepared the report for this meeting, Prof. Dieter Rexfrom Germany who presently is the Chairman of theScientific and Technical Sub-Committee of COPUOS,and from Prof. Humberto Ricciardi from Argentina.Landmarks of the ILA work on space debris wereparticularly: a regional seminar of the ILA in BuenosAires in December 1987; the international colloquiumof the Institute o f Air and Space Law in Cologne inMay 1988 mentioned above; discussions and a furthermandate at the ILA Conference in Warsaw in August1988; a meeting in Ascunción del Paraguay in October1988; a report to the 1990 ILA Conference inAustralia which resulted in a mandate to the SpaceLaw Committee to start work on the elaboration ofrelevant principles; after the preparation of three draftsa report to the 1992 Cairo Conference o f the ILAwhich resulted in a mandate to now prepare a final textof a draft international instrument.After this long and extensive preparation, since1992 three drafts had been elaborated, circulated anddiscussed at various stages by the ILA Space LawCommittee and its three Scientific Consultants and thefinal text with the title "International Instrument on theProtection of the Environment from Damage Causedby Space Debris" was submitted, with an extensive

208commentary by the Rapporteur o f the ILA Space LawCommittee, Prof. Maureen Williams, to the 66thConference o f the International Law Association inBuenos Aires in August 1994. The Conference adoptedit by a formal Resolution and thereafter, the text wascommunicated to COPUOS and other relevantinternational organizations. The text o f the DraftInstrument is enclosed as an annex to this paper.Major provisions in this final text deal with: definitions(Article 1), scope o f application (Article 2), the generalobligation to cooperate (Article 3), obligations toprevent, inform, consult, and negotiate in good faith(Article 4), compatibility with other agreements(Article 5), responsibility and liability (Articles 6 to 8),dispute settlement (Article 9), and the usual provisionson formalities of an international instrument.As many will know, a Symposium was held inconnection with the 1995 meeting of the Legal Sub-Committee of COPUOS and it was suggested thereagain that the Legal Sub-Committee now take up thetopic of space debris in its Agenda and that the ILADraft Instrument might be a good starting point for therelevant discussion, even if, for the time being, only acode o f conduct might be contemplated.This is in conformity with statements of manystates at all recent meetings o f the Main Committee ofCOPUOS which suggested that not only the Scientificand Technical Sub-Committee of COPUOS deal withthe topic of space debris, but that also the Legal Sub-Committee put this point on its Agenda. The samesuggestion has been included in the yearly statementsby the International Law Association as on officialobserver to COPUOS in its meetings o f the MainCommittee.In this context it is with pleasure that one can notethe decisions taken in last week's meeting of COPUOSjust before this UNISPACE III Conference accordingto which new working procedures have beenestablished which seem to facilitate taking up a topicsuch as space debris in future work o f COPUOS andits Legal Sub-Committee.Coming to concrete proposals that might beconsidered here in UNISPACE III on the basis of Dr.Perek's report and other work done in this field, theMAINTAINING THE SPACE ENVIRONMENTfollowing would seem to be both necessary andfeasible:1. A better implementation o f the RegistrationConvention should be promoted to provide moredetailed information relevant for space debris.2. The options for some kind o f regulatory frameworkfor the protection of the outer space environmentshould be discussed in COPUOS and its Legal Sub-Committee.3. The ILA Draft Instrument on Space Debris shouldbe included in such discussions, irrespective of whetherthe final legal form might be a convention, a set o fprinciples, standards and recommended practices or acode o f conduct, or perhaps a combination of two ofthese as suggested by Dr. Lafferranderie during themeeting o f this Session o f the Workshop.AnnexBuenos Aires International Instrumenton the Protection of the Environmentfrom Damage Caused by Space Debris(Draft approved by the 1994 Conference o f theInternational Law Association)Article 1: DefinitionsFor the purposes o f this Instrument:(a) "Contamination/pollution" means a humanmodification o f the environment by the introduction ofundesirable elements or by the undesirable use o f thoseelements.(b) "Contamination/pollution" will be considered assynonyms and are inclusive o f all harmful elementsother than space debris.(c) "Space debris" means man-made objects in outerspace, other than active or otherwise useful satellites,

MAINTAINING THE SPACE ENVIRONMENT 209when no change can reasonably be expected in theseconditions in the foreseeable future.Space debris may result, inter alia, from:Routine space operations including spent stages ofrockets and space vehicles, and hardware re-leasedduring normal manoeuvres.Orbital explosions and satellite breakups, whetherintentional or accidental.Collision-generated debris.Particles and other forms o f pollution ejected, forexample, by solid rocket exhaust.Abandoned satellites.(d) "Environment", for the purposes o f thisInstrument, includes both the outer space and earthenvironments within or beyond national jurisdiction.(e) "Damage" means loss of life, personal injury orother impairment of health, or loss of or damage toproperty o f States or o f persons, natural or juridical, orproperty o f international intergovernmentalorganisations, or any adverse modification of theenvironment o f areas within or beyond nationaljurisdiction or control.Article 2: Scope of ApplicationThe instrument shall be applicable to space debriswhich causes or is likely to cause direct or indirect,instant or delayed damage to the environment, or topersons or objects.Article 3: The General Obligation toCooperate1. States and international organisations parties tothis Instrument shall cooperate directly, and/or throughthe pertinent international organisations, to protect theenvironment and implement this instrument effectively.2. States and international organisations parties tothis Instrument shall take all appropriate measures toprevent, reduce, and control any damage or significantrisk arising from activities under their jurisdiction orcontrol which are likely to produce debris.Article 4: Obligations to Prevent, inform,Consult, and Negotiate in Good FaithStates and international organisations parties to thisInstrument have, in addition to the duties set forth inArticle 3, the following obligations:(a) To cooperate in the prevention o f damage to theenvironment and make every effort to avoid situationsthat may lead to disputes.(b) To cooperate, in accordance with their nationallaws and practices, in promoting the development andexchange of technology to prevent, reduce, and controlspace debris.(c) To encourage and facilitate the flow and exchangeof information o f a scientific, technical, economic,legal, and commercial nature relevant to thisinstrument.(d) To hold consultations when a State, group ofStates or international organisation parties to thisinstrument have reasons to believe that activitiescarried out under their jurisdiction or control, orplanned to be carried out, produce space debris that islikely to cause damage to the environment, or topersons or objects, or significant risk thereto.Any State or international organisation party to thisInstrument may request to hold consultations when ithas reasons to believe that the activity o f another Stateor international organisation party to this Instrumentproduces space debris that is likely to cause damage tothe environment. Refusal to hold consultations, or thebreaking up of such without justification, shall beinterpreted as bad faith.(e) To negotiate in good faith which means, inter alia,not only to hold consultations or talks but also topursue them with a view o f reaching a solution.

210 MAINTAINING THE SPACE ENVIRONMENT(f) To give special attention, when promoting theseactivities, to the needs o f developing countries.Article 5: C om patib ilityAgreementswith OtherThe rules laid down in this Instrument shall not beconsidered incompatible with the provisions o f otherinternational agreements concerning activities in outerspace.Article 6: Responsibility and Liability(general rule)The rules laid down in this Instrument concerningresponsibility and liability apply to damage caused byspace debris in the space environment and, in theabsence o f other international agreements on thematter, to damage caused to the earth environment.Article 7: International ResponsibilityThe State or international organisation, party to thisInstrument, that launches or procures the launching ofa space object shall bear international responsibilityfor assuring that national activities are carried out inconformity with the provisions o f this Instrument, the1967 Space Treaty, and the 1972 LiabilityConvention.Article 9: Dispute Settlement1. Disputes concerning the interpretation orapplication o f this Instrument shall be subject toconsultation at the request of any of the parties to thedispute with a view to reaching a prompt and amicablesettlement.2. Failing this, if the parties to the dispute have notagreed on a means of peaceful settlement within twelvemonths of the request for consultation, the dispute shallbe referred, at the request o f any party thereto, toarbitration or adjudication. In such case, the ILA DraftConvention on the Settlement of Space Law Disputes,which is appended as an Annex to this Instrument,shall be applicable, unless a party to this Instrumenthas excluded such application, in full or in part, by adeclaration as provided in paragraph 3 o f this Article.3. Each Party to this Instrument, when signing,ratifying, accepting, approving or acceding thereto, orformally confirming its acceptance, or at any timethereafter, may declare that it chooses any of the nonbindingor binding settlement procedures envisaged inthe Annex to this Instrument, or that it excludes in partor in full the application o f the Annex.4. In these procedures it shall be possible, wheneverappropriate, to prescribe interim measures binding onthe parties in order to preserve rights or to preventserious damage to the environment, or persons orobjects. These measures shall be implemented by theparties without delay.Article 8: International LiabilityEach State or international organisation party to thisInstrument that launches or procures the launching ofa space object is internationally liable for damagearising therefrom to another State, persons or objects,or international organisation party to this Instrument asa consequence o f space debris produced by any suchobject.Article 10:Signature1. This Instrument shall be open for signature by allStates and international organisations at the UnitedNations Headquarters in New York. Any State orinternational organisation which does not sign thisInstrument before its entry into force may accede to itat any time.2. This Instrument shall be subject to ratification orformal confirmation by signatory States andinternational organisations. Instruments o f ratification,instruments o f accession and of formal confirmation

MAINTAINING THE SPACE ENVIRONMENT 211shall be deposited with the Secretary-General of theUnited Nations.3. The Secretary-General o f the United Nations shallpromptly inform all signatory and acceding States andinternational organisations of the date of eachsignature, the date of deposit of each instrument ofratification and o f accession and the date of eachformal confirmation o f the present instrument, the dateof its entry into force, and other notices.Article 11:Entry into Force1. This Instrument shall enter into force among Statesand international organisations which have depositedinstruments o f ratification or formal confirmationthirty days after the deposit of the fifth instrument withthe Secretary-General of the United Nations.2. For States and international organisations whoseinstruments of ratification or accession, or of formalconfirmation, are deposited subsequent to the entryinto force o f this Instrument, it shall enter into force onthe date o f the deposit of their instruments ofratification, accession, or formal confirmation.Article 12:AmendmentsAny party to this instrument may propose amendmentsto the Instrument. Amendments shall enter into forcefor each party to the Instrument accepting theamendment upon their acceptance by a majority o f theparties to the Instrument and thereafter, for eachremaining party to the Instrument, on the date ofacceptance by it.Article 13:ReservationsNo reservations may be made to this Instrument exceptas provided in Article 9.Article 14:Review ClauseTen years after the entry into force of this Instrumentthe question of the review o f the Instrument shall beincluded in the provisional agenda o f the UnitedNations General Assembly in order to consider, in thelight o f past application o f the Instrument, whether itrequires revision. However, at any time after theInstrument has been in force for five years, theSecretary-General of the United Nations, asdepositary, shall at the request of one third o f theparties to the Instrument and with the concurrence ofthe majority of the parties, convene a conference of theparties to review the Instrument.Article 15:WithdrawalAny party to the Instrument may give notice of itswithdrawal from the Instrument one year after its entryinto force by written notification to the Secretary-General of the United Nations. Such withdrawal willtake effect one year from the date o f receipt of thisnotification.Article 16:Authentic TextThe original of this Instrument, of which the Arabic,Chinese, English, French, Russian, and Spanish textsare equally authentic, shall be deposited with theSecretary-General o f the United Nations, who shallsend certified copies thereof to all signatory andacceding States and international organisations.In witness thereof, the undersigned, being dulyauthorised by their governments, have signed thisInstrument, opened for signature at the United NationsHeadquarters in New York, o n ...NOTE: The Annex on Dispute Settlement is appendedin conformity with Article 9,2. (the text o f this Annexis not included here, but is published in: Report o f theSixty-First Conference of the ILA in Paris 1984, p.334 seq.)

212 MAINTAINING THE SPACE ENVIRONMENTCommentary PaperMaureen WilliamsThe leitmotiv of this Session was the need for a moreprecise legal framework for the protection of the spaceenvironment from damage caused by activities in outerspace. Even though the accent was put on preventionand the need to respect the precautionary principle,there was general agreement on the obscurity of theexisting rules o f international law applicable to thisquestion, both in the 1967 Space Treaty and in theLiability and Registration Conventions. Some practicalresponse is urgently called for in a field where mankindcannot afford further risks.The pillars of Session 8 were basically three. Thefirst was Dr. Perek's discussion paper entitled, as theSession, "Maintaining the Space Environment" . Thesecond was the text, scope and implications of theInternational Instrument on the Protection of theEnvironment from Damage Caused by Space Debris(hereinafter referred to as the "International Instrumenton Space Debris"), adopted by the International LawAssociation at its 66th Conference (Buenos Aires1994). The third -and particularly enlightening- pillarwas the series of lively comments from the floor wherethe interdisciplinary nature of this subject turned out tobe a glaring example o f international cooperationbetween space lawyers and scientists.First, I shall briefly streamline the major pointsinvolved in Dr. Perek's very scholarly discussion paperand the ensuing remarks made by the appointedcommentators, Dr. Lafferranderie, ProfessorBöckstiegel and the present writer. I shall then pauseon some of the striking features and drafting history ofthe Buenos Aires International Instrument on SpaceDebris, a text which is kept under permanent review bythe ILA Space Law Committee and which, to the bestof our knowledge, is the first of its kind. This was theessence of the present writer's paper as commentator ofSession 8 which, for practical reasons, forms part ofthe present Report.A recurring note o f the discussion paper -in alanguage reminiscent o f the 1992 UN Earth Summit inRio- was a question usually described as"intergenerational responsibility" which, in itsapplication to outer space, should be read together withthe need for the space environment to be "kept fit" (inthe words o f the author) for space activities o f futuregenerations. This issue was closely linked by Dr. Perekto the very legal topics of responsibility and liabilityover which, as experience has often shown, the lawyersand the scientists have argued for years on end and areonly just managing to come to terms on some aspects,such as prevention and precaution.Dr. Perek fully supported the work done so fa r byCOPUOS, particularly by its Scientific and TechnicalCommittee, and by other governmental and privatebodies. All these studies and debates provide anappropriate background for assessing the problem inits proper light. In this sense, and as a starting point,the above-mentioned author supported theencouragement o f technical solutions to prevent, toreduce, and even to remove, space debris.On this point the present writer is reminded of thethesis put forward by Dr. Perek -who is one of thescientific consultants, indeed a very active one, of theabove-cited ILA Space Law Committee. Dr. Perek hasalways shown concern for the extreme flexibility of thesystem laid down by the 1975 Registration Conventionand, with the aim of having more agile mechanisms,suggested the procedure described hereunder, whichwas outlined at the beginning of this last decade of thecentury. Let us briefly review this stand.At the root o f the question was the importance ofprotecting space objects provided this protection wasin the mind of the launching country. To this end, Dr.Perek proposed the publication, by every launchingstate, of a list o f all its active satellites and/or inactivespace objects (in this case only those it really wantedto protect) and the declaration, by that state, that onlythe objects on that list should remain protected underthe terms o f article VIII o f the 1967 Space Treaty. Anyother space objects which had been launched by thatstate would, consequently, not be covered by articleVIII. It was estimated -at the time of the drafting of theILA International Instrument, early nineties- that the

MAINTAINING THE SPACE ENVIRONMENT 213total number o f active satellites was in the region of250-300 satellites.10 Hence, one could safely assumethat the combined list of all launching states would notgo beyond a few hundreds o f items. The removal o fobjects included on that list would be thereforeconsidered free for any country having the technology.Naturally, these lists should be permanently updatedby computers which meant a relatively simple task.This theory, o f an essentially pragmatic nature, entails,o f course, a reasonable degree o f "space-policing"which would not be seen with favour by all countries.On this question, the present rapporteur is equallyreminded o f Professor Malanczuk's reasoning11 at theSymposium, organised in March 1995 in Vienna, bythe IISL under the auspices of COPUOS. On thisoccasion an analogy was drawn from the rulesapplicable in the field o f maritime law, which meantconsidering abandoned space objects as derelict and,consequently, the possibility o f removing themunilaterally.The Perek proposal was sometimes confrontedwith other suggestions such as, for example, theso-called "legal" ones. This would imply, in the mindof a number of international lawyers, imposing on alaunching state the obligation to remove the satellitefrom orbit once it became inactive. For the legal worldthis possibility appears absolutely consistent withinternational law and the principles of justice andequity which inspired, inter alia, article XII of theLiability Convention. Yet, the political winds whichblow in all direction within the framework ofinternational intergovernmental organisations areresponsible for this idea being left in abeyance. Andthere are legal and technical reasons as well.By way o f example, when Argentina recentlyinvited to tender for the construction o f its firstdomestic communications satellite to be launched intoGEO, the possibility o f imposing an "obligation toremove" as described in the previous paragraph wasthoroughly discussed. However, during the drafting of10 See Report of the 65th Conference of the ILA, Cairo 1992.Space Law Committee, p. 144.11 See Malanczuk, P., "Technical and Policy Issues related tothe Use of the Space Environment".the requirements and conditions it was perceived thatan obligation o f the kind would mean putting theoperator at handicap with respect to other operatorsinvolved in similar space activities and not bound byany such obligation. To say the least, the first operatorwould have to resort to the last bit (stock) of fuel tode-orbit the satellite with the ensuing reduction of thereal time of use o f the satellite. It seems fair to say thatobligations o f this type should be based on rules ofinternational law, binding for all, and where the "raisond'etre" should be, first and foremost, the protection ofthe environment. This is insofar as legal reasons areconcerned.As to the technical reasons, it is commonknowledge today that, because of the field ofgravitation o f the Earth, it is less costly to transferabandoned satellites to LEO, or send them beyondGEO12 than bring them back to Earth. In this case,space objects should already be prepared at the time oflaunching for any such orbital transfer.13Dr Perek continued the trend of his most recentwritings, particularly the paper submitted to the 40thColloquium o f the IISL, entitled "Outer Space Treatyin Perspective" (Torino 1997) where, with his usualclarity and without overlooking the interdisciplinarycharacter of the topic, he provided further informationon this question. In addition to stating that space debrisamounts to a 95% of all the objects presently in outerspace, Dr. Perek drew attention to the threat to activesatellites which results from this situation, aggravatedin the case o f manned space missions. In the interest ofprecision, this author strongly advocated the need tohave a uniform criterion to determine when a spaceobject may be considered as debris. This is essential toavoid confusions which might lead to chaos. To tinsend, at the Vienna meeting Dr. Perek resumed his traino f thought expressed at the Torino Colloquium whencomparing the very few definitions given so far on this12 See S.M . Williams, EL RIESGO AMBIENTAL Y SUREGULACION. DERECHO INTERNACIONAL YCOMPARADO. RESIDUOS ESPACIALES Y PROTECCIONDE LA CAPA DE OZONO, Abeledo-Perrot, Buenos Aires1998, p.51.13Ibid. In note 10 reference is made to the 64th Report of theILA (Queensland 1990), particularly Prof. Böckstiegel'sparticipation in the debate chaired by Lady Fox, pp. 174-180.

214 MAINTAINING THE SPACE ENVIRONMENTquestion by international institutions, such as the ILAin 1994 and the International Academy of Astronauticsin 1993.14 Space debris, he stated, is a global problemwhich calls for global solutions.The discussion paper, enriched by its author's extempore comments from the podium, included a list ofserious outstanding problems, such as spillover ofradio waves, exhaust gases, liability aspects, theoverall problem caused by inactive satellites and smallparticles (which are today almost impossible to track)and the role o f NASA in this connection. Similarly,pollution o f the night sky by light (space debrisreflecting sunlight, for example) was listed as exampleof one of the most modem aspects o f pollution today.On this point Dr. Perek recommended that theprinciple of preserving the dark night sky suitable forastronomical research should be duly taken intoaccount when planning space missions. With themillennium celebrations approaching one may wonderhow many complaints will arise on these grounds.Finally, and in no uncertain terms, the author ofthe discussion paper called for concerted action leadingto a code o f behaviour, or set of principles, to providea more precise framework for maintaining the spaceenvironment. The time appears propitious for the LegalSubcommittee o f COPUOS to take up the subject. TheILA Instrument on Space Debris, the work carried outby the IISL, ESA, NASA and other private andgovernmental bodies constitute a useful and realisticbackground to pursue efforts in that direction.Dr. G. Lafferranderie was the first commentator ofthe Session. This speaker centered his comments on thegrowing problems originated by space debris ascommercial activities in outer space gain momentum.In full agreement with the previous speaker as to theneed to define "space object", Dr. Lafferranderie wasparticularly concerned by the risk to the spaceenvironment arising from constellation satellites.14 See Pere k's paper "Outer Space Treaty in Perspective", inProceedings of the 40th Colloquium on the Law of OuterSpace, Torino 1997 (publ. AIAA). Also, by the presentwriter,"The Development of Article IX of the 1967 SpaceTreaty", ibid.The French specialist reflected the general feelingof the meeting as to the vagueness o f the existing rulesof international law embodied in the Outer SpaceTreaties and which may be applicable to the protectionof the space environment. Article IX o f the SpaceTreaty was now, in this expert's view, for fromsatisfactory. Indeed -the present writer reflects inpassing- it fails to go beyond the requirement of "stateshaving reason to believe" that a certain activity maycause damage to the environment of the Earth.Furthermore, the Liability and RegistrationConventions are no significant step forward on thisquestion.15To conclude, Dr. Lafferranderie recommendedtaking the ILA Instrument on Space Debris as basis forfurther studies leading to the adoption of a code ofconduct along the lines of the UN Nuclear PowerSources Principles.The next commentator was Professor K.H.Böckstiegel, who focused his remarks on the 1994 ILAInstrument on Space Debris (Buenos Aires, 1994)explaining that the ILA had decided to call it an"Instrument" and not a "Convention" in order to keepit flexible. This speaker outlined the structure of theBuenos Aires Instrument pausing on some of its keyprovisions and describing the exchange of views anddiscussions which took place within the ILA SpaceLaw Committee which he chairs and of which thepresent writer is the rapporteur.Like in the previous sessions o f this ViennaWorkshop, pride o f place was given to the topic ofdispute settlement and the advisability o f counting witheffective mechanisms to this end. The Revised Text ofa Convention on Dispute Settlement related to SpaceActivities (adopted at the ILA 68th Conference, 1999)was brought to the attention of the meeting. Prof.Böckstiegel pointed out that disputes between privateentities concerning space activities were duly coveredby the present rules of international law, especially inthe field of international commercial arbitration.However, there were more difficulties in connection15 See the Reports of the present writer to the Queensland,Cairo, Buenos Aires, Helsinki and Taipei ILA Conferences inREPORTS... etc.

MAINTAINING THE SPACE ENVIRONMENT 215with disputes arising between private entities andsubjects o f public law, i.e. sovereign states andinternational intergovernmental organisations.Prof. Böckstiegel referred to the option,contemplated in the ILA Instrument on Space Debris,which provides a choice between binding andnon-binding methods for dispute settlement. Thisspeaker observed that the idea of the ILA Space LawCommittee was to start at a low level o f compulsion-so as to gain the widest possible support from allcircles- and then move slowly up the scale. Anotherimportant feature of the ILA Instrument was a reviewclause designed to keep pace with technologicaladvancement.To conclude, and following the tenor o f statementsmade at the COPUOS in the past years, Prof.Böckstiegel made a renewed plea for the topic of spacedebris to be included on the agenda of the COPUOSLegal Subcommittee.The present writer was the third appointedcommentator for Session 8 where she highlighted whatwere considered to be the most important provisions ofthe ILA International Instrument on Space Debris,underlining the interdisciplinary approach of the workof the ILA Space Law Committee on this subject.Following the initial terms of reference stemming fromthe 62nd Conference (Seul 1986) the present writerwas asked to lay down the "Pillars o f the Future ILAInstrument on Space Debris" for consideration of theCommittee members and o f the forthcomingConferences (Queensland, Cairo and Buenos Aires). Indescribing her experience, Professor Williams referredto the confronted views o f lawyers and scientists(particularly the technical consultants of the ILASpace Law Committee) on the question ofresponsibility and liability. Whereas the former firmlyadvocated the inclusion o f rules on the matter, thelatter suggested their deletion on the grounds thatliability rules were hardly relevant because the typicalexample o f collision originates when a large spaceobject (active or otherwise) is hit by a small object(usually second generation debris) which is frequentlynon-trackable and may render the large object defunct(Prof. Rex).16 Another reason advanced by technicalexperts was that the accent should be on the preventiono f space debris and only then would we be ready tomove on to liability questions (Prof. Ricciardi).17In the end, as the present writer observed, the ILASpace Law Committee decided to keep the rules onliability within the International Instrument. Thiscourse o f action was based on an ILA Resolution(Cairo Conference 1992), but it was also adopted forpractical reasons. In fact, at a later stage it wouldprove far easier to delete these provisions -ifnecessary- than to try including them.Concerning definitions Prof. Williams pointed out,inter alia, that for the purposes of the Instrument it hadbeen decided to consider the terms "pollution" and"contamination" as synonyms. She then commented onthe different terms included under such heading whichfollowed the anglo-saxon treaty-drafting style. Thepresent writer then went on to explain the nature of theobligations laid down in the Instrument, including a"general obligation to cooperate" (following thedrafting of the 1989 Ottawa Declaration of Principleson the Protection o f the Environment) and the morespecific obligations to prevent, inform, consult andnegotiate in good faith. The latter was to be interpretedas not only an obligation to hold talks but to pursuethose talks with the main objective o f reaching asolution and where any unjustified breach of the talksis seen as bad faith. In Prof. Cocca's (Argentina) view,in some cases this could amount to a breach ofinternational law, and so would a refusal to holdconsultations.18Following the present writer's presentation thefloor was open for comments. Professor Machisio(Italy) expressed his support for the ILA Buenos AiresInstrument and then referred to various aspects of theconcept of "sustainable development" stemming fromthe 1992 Earth Summit in Rio. On this question,16 See REPORT OF THE 66th CONFERENCE OF THE ILA,Buenos Aires, 1994, P.311.17 Ibid.,p. 12.18 See Cocca, A.A., in his comments to the Rapporteur’s Draft,in REPORT OF THE 66th CONFERENCE (Buenos Aires1994), pp.305-321.

216 MAINTAINING THE SPACE ENVIRONMENTPrinciple 21 of the UN Stockholm Declaration, whichwas frequently quoted at the Rio Conference, shouldbe taken fully into account. The same should be saidabout the principles of precaution and "polluter pays"in the implementation of which internationalcooperation -or, shall we say, the "general obligationto cooperate"- has an essential role to play. Thespeaker reminded the audience of a number ofenvironmental law texts which were proving effective,such as, for example, the 1985 Vienna Convention onthe Protection o f the Ozone Layer, and relatedinstruments where the international community showeda true and timely sense o f responsibility by acceptingobligations and restrictions on the production and useof halocarbons which would have seemed unthinkablea few years before. As to the Climate Convention,Prof. Machisio believed it deserved wider support.Finally, this speaker considered that the UN GeneralAssembly should encourage the Legal Subcommitteeof COPUOS to take up the subject of space debris.Johannes Andersen, Secretary-General o f theInternational Astronautical Union, and Dr. SylviaOspina, both agreed on the advisability of having aninternet data-base, particularly in connection withconstellation satellites and flight-plans of registeredsatellites. The latter proposed the transfer ofregistration fees to a central fund in order to supportstudies on debris mitigation, for example.Dr. Karrest pointed out the differences between"limitation" of debris and "mitigation" thereofemphasising the importance of the liability aspects andthe duty "to prevent". This expert considered theadoption of rules o f conduct for the protection o f thespace environment to be an urgent matter. AmbassadorFinch, for his part, made a number of subtle remarksconcerning the legal aspects of space debris, focusingon the question of definitions and dispute settlement.Dr. Lafferranderie believed that private enterprisesshould be incentivated to this end and that the questionof insurance should be carefully studied. Indeed, this isa field where a great deal of legal thought is required.Commentary PaperArmel KerrestProfessor of International Law at theUniversity of Western Brittany (France)After the very interesting and so dynamic interventiono f Dr. Perek and other commentators, I would like tomake two remarks and two proposals.The first remark deals with the prevention, or morerealistically the mitigation o f space debris. It is the firstand for the time being the only possibility. Given thecost o f such mitigation either in construction cost or insatellite lifetime, no private entity is ready to acceptthem if its competitors do not. National rules should bemade compulsory and, as entrepreneur may changetheir nationality, international regulations must beaccepted.I draw your attention to the fact that whatever thepreventive measures may be, they will just have thecapacity to lower the increase of space debris. If weconsider on the one hand the time needed by theCopuos to discuss and adopt rules and on the otherhand the necessity to begin now to prevent creatingnew space debris, we must recognise that time is up toconsider the legal issues within the Copuos. During itslast meeting the technical sub-committee transmittedits report on space debris. It was proposed to begin thediscussion within the legal sub-committee.Unfortunately this proposal could not reach aconsensus. It should be good not to play Ping-Pongbetween the main committee and the technical subcommitteeand to enter into legal discussions in thelegal sub-committee.Summary Report• Keep outer space clean for further spaceactivities

MAINTAINING THE SPACE ENVIRONMENT 217• Support of work done so far by COPUOS andother UN bodies• Encourage technical solutions for de-orbitingo f spacecraft as it is in the best interest o f allusers o f operational orbits• Identification that the present rules are toovague and general. Art. IX Outer SpaceTreaty is not sufficient.• Registration Convention to be more effective,better implementation:• increase the number of States andinternational organisations actively adheringto this Convention• need for COPUOS to request the Office ofOuter Space Affairs to obtain requiredinformation on space objects and to maintaina comprehensive and fully updated register onits websites.• Definition of "space object” is necessary;additionally definition o f some other terms.• Study liability aspects; the IISL is requestedto study the issue o f liability and to initiateappropriate further steps.• Code of conduct along the lines of NPSprinciples.• Supporting the principle of reservingnecessary frequency bands for future researchof distant natural sources of radio signals, andto their protection from spill-over.• The principle o f preserving the darkastronomical sky suitable for astronomicresearch should be taken into account inplanning space missions (see last conference“Preserving the Astronomical Sky” held from12 to 16 July 1999).• Establish an international regulatoryframework in order to ensure safe andefficient services for an international action,refer to ILA Conferences• International legal provisions should beinvestigated to enable providers of collisionwarning and mitigation services to beresponsible for coordinating with the partiesinvolved in close approaches, and to assurethe awareness of satellite operators of thesituation.• Take over a flight plan for satellite which isalready known from aviation.• The service provider concept should bereviewed and refined by an international bodyor committee which includes representativeso f both industry and government. Serviceprovider concepts including governmental,commercial, multiple entity, and consortiashould be evaluated.

Annex ITHIRD UNITED NATIONS CONFERENCE ON THE EXPLORATIONAND PEACEFUL USES OF OUTER SPACE (UNISPACE III)Vienna, 19-30 July 1999Workshop on Space Law in the 21st CenturyProgrammeWorkshop Chair:Workshop Coordinator:Workshop Assistant Coordinator:Dr. Nandasiri Jasentuliyana (President,International Institute o f Space Law)Dr. Stephen E. Doyle (International Instituteof Space Law)Ms. Masami Onoda (United Nations)Session 1: Tuesday. 20 July. 1999. 09:00-12:00Existing UN Space Treaties: Strengths and NeedsChair:Coordinator/Rapporteur:Commentators:Discussion Paper Author:Dr. Eilene Galloway (United States ofAmerica)Dr. Kai-Uwe Schrogl (Germany)Prof. Y. Kolosov (Russian Federation)Dr. Frans von der Dunk (The Netherlands)Prof. S. Bhatt (India)Prof. Dr. Vladimir Kopal (Czech Republic)Session 2: Tuesday. 20 July 1999.14:30-17:30Expanding Global Launch ServicesChair:Coordinator/Rapporteur:Commentators:Discussion Paper Author:Prof. E. Back Impallomeni (Italy)Dr. Frans von der Dunk (The Netherlands)Ms. Catherine Baudin (European SpaceAgency)Mr. John B. Gantt (United States ofAmerica)Mr. Monserrat Filho (Brazil)Dr. Peter van Fenema (The Netherlands)

220Session 3: Wednesday. 21 July. 1999. 09:00-12:00Expanding Global Communications ServicesChair:Coordinator/Rapporteur:Commentators:Discussion Paper AuthorProf. V.S. Mani (India)Dr. Ram Jakhu (Canada)Mr. Alfons Noll (Switzerland)Prof. Jonathan F. Galloway (United States ofAmerica)Dr. Ram Jakhu (Canada)Prof. Francis Lyall (United Kingdom)Session 4: Wednesday. 21 July. 1999.14:30-17:30Expanding Global Remote Sensing ServicesChairCoordinator/Rapporteur:Commentators:Discussion Paper Author:Dr. Ernst Fasan (Austria)Dr. Marietta Benko (Germany)Mr. Carlos Hernando Rebellon Betancourt(Colombia)Mr. Alexander V. Yakovenko (RussianFederation)Dr. M.G. Chandrasekhar (India)Prof. J.L. Gabrynowicz (United States ofAmerica)Session 5: Thursday. 22 July. 1999. 09:00-12:00The Roles of International Organisations in Privatization and Commercial Useof Outer SpaceChair:Coordinator/Rapporteur:Commentators:Discussion Paper Author:Mr. G. Lafferranderie (European SpaceAgency)Dr. B. Schmidt-Tedd (Germany)Mr. David Sagar (Inmarsat)Mr. V. S. Veshchunov (Intersputnik)Mr. Leonard S. Dooley (INTELSAT)Mr. P. Hulsroj (EUMETSAT)Mr. Christian Roisse (EUTELSAT)

221Session 6: Thursday. 22 July. 1999.14:30-17:30Expanding Global Navigation ServicesChair:Coordinator/Rapporteur:Commentators:Discussion Paper Author:Mr. David Sagar (Inmarsat)Mr. Marco Ferrazzani (European SpaceAgency/Italy)Mr. Jiefang Huang (ICAO)Dr. B.D.K. Henaku (Ghana)Mr. V.B. Reddy (India)Prof. Paul B. Larsen (United States ofAmerica)Session 7: Friday. 23 July. 1999. 09:00-12:00Possible International Regulatory Frameworks,Including Legal Conflict Resolution in Expanding Space CommercializationChair:Coordinator/Rapporteur:Commentators:Discussion Paper Author:Prof. Karl-Heinz Bockstiegel (Germany)Ms. Anna Marie Balsano (European SpaceAgency)Prof. V.S. Mani (India)Prof. K. Tatsuzawa (Japan)Mr. René Oosterlinck (European SpaceAgency)Prof. Dr. Peter Malanczuk (The Netherlands)Session 8: Friday. 23 July. 1999.14:30-17:30Maintaining the Space EnvironmentChair:Coordinator/Rapporteur:Commentators:Discussion Paper Author:Amb. Qizhi He (China)Prof. Maureen Williams (Argentina)Mr. G. Lafferranderie (European SpaceAgency)Prof. Dr. Karl-Heinz Böckstiegel (Germany)Prof. Maureen Williams (Argentina)Dr. Lubos Perek (Czech Republic)Executive Committee Session. Saturday. 24 July. 1999.09:00-12:00Workshop Summary: under supervision of N. Jasentuliyana, IISL President

223Annex IITHIRD UNITED NATIONS CONFERENCE ON THE EXPLORATIONAND PEACEFUL USES OF OUTER SPACE (UNISPACE III)Vienna, 19-30 July 1999List of Participants and Speakers in the IISL WorkshopNo Name Address E-Mail1. Alexander, George Jonathon Santa Clara UniversitySanta Clara, Ca, USAgjalexander@scu.edu2. Andem, Maurice N. Fac. of Law, University of Lapland, Box122, 96101 Rovanemi, Finlandmandem@urova.fi3. Back Impellomeni, E. Prof. Univ of Padua, Via del Vescovado 24,35141 Italy4. Bahraini, Mohsen Mechanical Engenering Dept, Amir KabirUniv., Hazef Ave., Teheran 15, Iran5. Balsano, Anna Marie ** Legal Affairs,European Space Agency,8-10 rue Mario-Nikis,75738 Paris, Cedex 15, FRANCE6. Baranski, Gisela Birgitte Project Office, c/o Linder Hohe, 51147Koln, Germanymbahrami@cic.aku.ac.irAbalsano@hq.esa.firgisela.baranski@dlr.de7. Barrett, Thomas C. European Investment Bank, 100 BlvdKonrad Adenauer, 1-2450 Luxembourg8. Baudin, Ms. Catherine*** Legal Affairs,European Space Agency,8-10 rue Mario-Nikis,75738 Paris, Cedex 15, FRANCE9. BeamerDownie, Darcy Air Claims Ltd, Cardinal Point, NewallRoad Heatrow Airport, London TW6 2AS,UK10. Benko,. Marietta Dr.** Institute of Air and Space Law,University of Cologne,Albertus-Magnus-Platz,D-50923 Cologne, GERMANY11. Bhatt. S.Prof.*** School of International Studies,Jawaharlal Nehru University,New Delhi 110067, INDIA12. Bini, Nicoletta Italian Space Agency, Vili ReginaMargeritha 202,00198-Roma ItalyLbarrett@eib.orgCbaudin@hq.esa.firN/AAol-17@maillrrz.uni-koeln.deN/Abini@asi.it

224No Name Address E-Mail13. Bocksteigel, Karl-Heinz P rof* Institute of Air and Space Law, Universityof Cologne,Albertus-Magnus-Platz,D-50923 Cologne, GERMANY14. Bordini, Clelin Facolta Scienze Politche Caglari, Viale FraIgnazio 78, 03120 Caglari, Italy15. Catalano-Sgrosso, Gabriella University of Rome, Facolta di Economica,Instituta Dritto Internationale, Via CastroLaurenzanio 9,00161 Roma16. Chandrasekhar, M. G.Dr.*** 9th fl., Shankamarayana Towers, 25/2M. G. Road,Bangalore 560001, INDIA17. Clerc, Philippe Marcel Rene 1, Rue Descartres, 75 231 Paris, FranceCedex05KH.Boeckstiegel@uni-koeln.deN/Amauzo.sgr@flashnet.itMchandra@worldspace.compkUippe.clerc@mesv.fr (?)18. Davis, Michael Edward Warta Partners, 26 Flinders St, AdelaideS. A 5000, Australiamdavis@wardpartners.com.au19. DeLataillade, Xavier CNES, 2 Place Maurice Quentin, 75001Paris, Francexavier.delataillade@cnes.fr20. DeMontluc, Bertrand Place de Louvain 14,1000, Bruxelles bertrand.demontluc@diploInatie.fi,21. Danvivathana, Pornchai Dr. Departement of Treaties and Legal Affairs,Ministry of Foreign Affairs, Sri AyudhyaRoad, Bangkok, Thailanddiv0601@mfa.go.th22. Diedriks-Vershoor, IsabellaProf. Dr, H.PhLeestrat 43, 3743 EH Baarn, TheNetherlandsDr.Diedrik@inter.nl.nct23. Dooley. Leonard S.*** INTELSAT24. Doyle, Stephen E 3431 Bridget Brae Rd, Shurhle Springs, CA95682, USAsedoyle@footbill.net25. Dula, Arthur M. 3106 Beauchamp St, Huston TX 77009,USAart@dula.com26. Edwards, June W. 300 E Street, SW Washington, DC 20546,USAjedwards@hq.nasa.gov

225No Name Address E-Mail27. Ersfeld, Hermann Daimler Chrysler Aerospace AG, Spaceinfrastructure, P.O Box 286156, D-28361Bremen, Germanyhermann.ersfeld@ri.dasa.de28. Esser, Paul Linder hohe, D-51147, Koln paul.esser@dlr.de29. Fasan, Ernst Dr.* Raimundweg 2/1/12,2620 Neunkirchen,AUSTRIA30. Ferrajalo, Orn ella CNR, Cso Vittorio Emanuelle II, 251 00186Rome, Italye.fasan@aon.atferrajolo@iasi.nn.cnr.it31. Ferrazzani, Marco** Legal Affairs,European Space Agency,8-10 rue Mario-Nikis,75738 Paris, Cedex 15, FRANCEMfererazz@hq.esa.fr32. Finch, Edward Ridley 862 Park Ave. New York, NY 10021, USA N/A33. Gabrynowicz, Joanne I.Prof.****Department of Spacestudies,University of North Dakota,Clifford Hall,Grand Forks, ND 58202-9008,UNITED STATES34. Galloway, Eilene M . Dr.* 4612,29th Place N.W.Washington, DC 20008-2105,USA35. Galloway, Jonathan F.D r***. 555, North Sheridan Road,Lake Forest, IIlinios 60045,USA36. Gantt, John B.*** 1919, Pennsylvania Ave. N. W., suite 200,Washington, DC 20006, USA37. Goh, Alexis L. Y. Faculty of Law UWS Macarthur,Cambelltown 2560, Australia38. Golrounia, Ali Akbar Atlas Aviation group, P.O, Box 19395,6768 Tehrangabrynow@space.eduN/AGalloway@lfc.eduJohngantt@aol.coma.goh@uws.edu.auN/A39. Gubarev, Vladimir 117418, Vovochemeshkinskaya 46,Moscow, Russiaimepi@transecon.ru(?)40. Harvey, Brian A. PO Box 12 Carmel, IN 46082, USA bharve2@ibm.net41. He, Qizhi* c/o Department of Treaty and Law Ministryof Foreign Affairs, Beijing, CHINAN/A

226No Name Address E-Mail42. Heere, Wybo Paul Institute of Public Int. Law, UtrechtUniversity, NL Janskerhof 3, 3512 BKUtrecht, The Netherlands43. Henaku,AST Dr.*** Zoeterwoudsweg 54,2321 GP Leiden,THE NETHERLANDS44. Herman, Thierry ESA, 8-10 rue Mario Nikis, 75738, Paris,cedex 15 Francew.heere@library.uu.nlHenaku@astlex.demon.nltherman@hq.esa.fr45. Hong, Soon-Kil Prof. PhD. Dean of graduate School of AviationIndustry, Hankuk Aviation Univ., 200-1Hua Jon Dong, Koyang City, Kyong, Korea46. Hoskova, Mahulena Dr. M ax Planc Inst. For Comparative andInstitutional Law, Im, Neuenheimer Feld535,69120 Heidelberg, Germany47. Huang, Jiefang*** Legal Bureau, ICAO,1000 Montreal, Que IDA 2R2,CANADA48. Huddelston, C. Kelli Law offices of Stern and Tennen, 849 N 3dAve., Phoenix, Arizona 85003, USAskhong@mail.hongkong.ac.krmhoskova@empiv.hd.mpg.deN/Amhudd@speedchioce.com49. Hulsroj, P EUMETSAT50. Iauicoli, Viviana InstitutoStum. Gnr, CNR Rome javicoli@ici.rm.cnr.it51. Ishikawa, Toshiko Herengarcht 33c, 2312 LA Leiden, TheNetherlands52. Jakhu, Ram S.Dr.** Institute of Air and Space Law, Faculty ofLaw, McGill University 3661 Peel St,Montreal, Quebec, Canada H3A 1X153. Jasani, Bhupendra Prof. Dept Of War Studies, Kings CollegeLondon, Univ. Of London, Strand, LondonWC2RLS, UK54. Jasentuliyana, N President, International Institute of SpaceLaw3-5 Rue Mario-Nikis75015 Paris, France55. Kaiser, Stefan A Sindlinger Bahnsrasse 137,65931 Frankfurtam Main98LLM012@JurFac.Leiden.univ.nljakhu@falaw.lan.mcgill.cabhupendra.jasani@kcl.ac.ukTGF077@email.mot com56. Kerrest, Armel Universite de Bretagne Occidentale, B.P.816,29285 Brest, Cedex FranceArmel.Kerrest@univ-brest.fr

227No Name Address E-Mail57. Kolosov, Y. Prof Moscow State Institute of int’l Law, 76Vernadsky Ave. Moscow, Russia58. Kopal, Vladimir Prof, Dr. Vidlicova 2200, 16000 Prague Devicje,Czech Republik59. Kosuge, Toshio Prof. Univ. Of Electrocomm., 1-5-1 Chofugaoka,Chofu, Tokyo, Japan, 182-858560. Larsen, Paul B.Prof.**** Georgetown University Law Center, 600New Jersey Avenue, N. W. Washington, DC20001-2022, USA61. Lafferranderie, Gabriel ESA HQ Legal Affairs,European Space Agency,8-10 rue Mario-Nikis,75738 Paris, Cedex 15, FRANCEkosuge@cas.uec.ac.jppblspace@aol.commjay@hq.esa.fr62. Lavarov, Alexey 12957, Shepkin str 42, Moscow, Russia alavrov@cityline.ru63. Li, Wei 2A Guanganmen Napjie, Xuanwugu,Beijing, P.R. China, 10005364. Liu, Jian Erasmus University, GLODIS Institute, LawFaculty, PO Box 1730, NL 3000 Dr,Rotterdam65. Liu, Xiaohong 2A Guanganmen Napjie, Xuanwugu,Beijing, P.R. China, 10005366. Liu, Yunpeng 2A Guanganmen Napjie, Xuanwugu,Beijing, P.R. China, 100053cnsagov@public.bta.net.cnliu@law.eur.nlcnsagov@public.bta.net.cncnsagov@public.bta.net cn67. Love, Lee Morse 860 United Nations Plaza, New York, USA LEEUN@AOL.COM68. Lyall, Francis Dr**** 6, Beechgrove AvenueAberdeen AB2 4EJ, SCOTLAND,UNITED KINGDOM69. Maclure, Jeffrey Maughan U.S Departement of State,209 Cedar RidgeDrive, Oxon Hill Maryland 20745, USA70. Makiol, Philip Sven Institute of Air and Space Law, Universityof Cologne, Albertus Magnus Platz, 50923Cologne71. Malanczuk, Peter Prof.Dr.****Faculty of Law,Erasmus University Rotterdam,Burg. Oudlaan 50,L6-54,3062 PA Rotterdam,THE NETHERLANDSf.lyall@abdn.ac.ukN/APhilip.Makiol@uni-koeln.deMalanczuk@law.eur.nl

228No Name Address E-Mail72. Mani, V. S. Indian Society of International Law, 9,Bhagwan Dass Road, New Delhi-110001,Indiaand: School of Int.l Studies, JawaharalNerhu Univ. New Delhi.73. Martin, Pierre M. Toulouse University, 13 Rue Calvet, 31500Toulouse, Francerpanand@giasdl01.vsnl.net invsmani@jnuniv.erne t.inN/A74. Marchisio, Sergio Institute for legal studies on theinternational community, National ResearchCouncil, Corso Vittorio Emanuelle II n 251,00198 Rome Italy75. Martinez, Larry Frank Dept.Political Science, CSUCB LongbeachCA, 90846, USAisgci@iasi.nn.cnr.itmartinez@csulb.edu76. Mayence, Jean-Francois OSTC, Rue de la Science 8, B-1000Brusselsmaye@belspo.be77. Mejia-Kaiser, Martha SindlingerBahnstrasse 137,65931Frankfurt am MainN/A78. Meyer, Marc Flensburgerstr. 22, 51377 Leverkusen,Germany79. Monserrat-Filho, Jose*** Brazilian Society of Space Law Law,Av.Oswaldo Cruz 73, Apto. 701, Rio deJaneiro 22250-060, Brazil80. Moore, Amanda L. Dr. 35, Parkview Ave. No 51, Bronxville, NY,10708-2923, USA81. Mosteshar, Said 4275 Executive Square, Suite 800, La Jolla,CA 92037, USA82. Munir, Abu Bakar Faculty of Law, University of Malaya,MalaysiaN/Amontserrat@ax.apc.orgalmoore@worldnetatt.netSM@Mostehar.comabakar@um.edu.my83. Naidu, MuddadaVenkatappalaUniversity College of Law, Andhra Univ.,Visakhapatnam 530003, India84. Nilson, Mats Carl Nilson Research Corp. 3585 Moultrie Ave,San Diego, CA 92117, USA85. Nilson, Raquel Nilson Research Corp. 3585 Moultrie Ave,San Diego, CA 92117, USAN/AnilsonR@msn.comnilsonR@msn.com

229No Name Address E-Mail86. Noack, Wolfgang DLR-DFD, D-82234, Weissling wolfgang.noack@dlr.de87. Noll, Alfons 6 rue Billot, 106 Geneva, Switzerland88. Olofsson, Rolf S White and Case Advokat AB P.O.Box5573,11485 Stockholm, Sweden89. Onoda, Masami 2-4-1 Hamamatsu-cho, Minato-ku,Tokyo,JapanN/Aonoda.masami@nasda.go.jp90. Oosterlick, Rene Mr European Space Agency,8-10 rue Mario-Nikis,75738 Paris, Cedex 15, FRANCE91. Ospina, Sylvia POB, Coral Gables, FL 33114,USAroosterl@hq.esa.firsylvia.ospina@ico.com92. Paluch, Norbert DLR ST-SU Porz. Wahnheide, LinderHohe, D-51147 Cologne, Germanynorbertpaluch@dlr.de93. Papp, Zoltan Dpt of International Law, Ministry ofForeign Affairs, Hungary94. Patzold, Hans Ulrich Fairchild Dernier, 82230 Weissling,Germanyulrich.paetzold@faider.de95. Perek, Lubos Dr.**** Astronomical Institute,Bocni I I 1401,141 31 Prague 4,CZECH REPUBLIK96. Pichler, Mareni Dr. Ortner Poch Foramitti Rae Oeg., A-1010Vienna, Strauchg. 1-397. Pradja, Iswandi S. PT Asia Cellular Satellite, KawangKaryadeka Pancamurni, Blok A Kav. 3,Lemahabang, Bekasi 17550 Indonesia98. Rebellon Betancourt, CarlosHernando***Calle 13E no. 69-53 Manzana, 3 casa 6,La Hacienda, Cali,COLOMBIA99. Reddy, V.B.Dr.*** Asian Inst For Transpt. And Develop. Apt.E-5, Qutab Hotel, Shaheed Jeet Singh Marg,New Dehli 110016, India100. Reif, Susanne Ursula Institute of Air and Space Law/ Project2001, Linder Hohe 51147 Cologne,Germany101. Ribbelink, Olivier M. TCM Asser Institut, P.O Box 3046,2500GL The Hague, The NetherlandsPerek@ig.cas.czopf.vienna@aon.atN/Avbreddy99@hotmail.comsusanne.reif@uni-koeln.de0.M.Ribbelink@asser.nl

230No Name Address E-Mail102. Roisse, Christian Eutelsat, 70, Rue Balard, Paris France103. Rye, Gilbert D. Orbital Imaging Corp., 21700 AtlanticBlvd. Dulles, VA 2016, USA104. Saefullah, Tien Sumartini Fac. of Law, Padjadjaran Univ.JL. Imam Bonjol 21, Bandung 40132,Indonesia105. Salin, Patrick A. Dr. Center of Air and Space Law, McGillUniversity, 3661 Peel Street Montreal,Canada, H3A1X1106. Sanpio, Aladren Jose Luis Centro Espanol De Derecho EspacialEscuela Diplomatica Paseo Juan XXIII-5-E-28040 Madrid, Spainiye.gil@orbimage.comesw@unpad.idsalin.patrick@uqam.caN/A107. Sanz, Edz de CordobaAscebsionCentro Espanol De Derecho EspacialEscuela Diplomatica Paseo Juan XXIII-5-E-28040 Madrid, Spain108. Sagar, David 4/51 Cadongan Gardens London SW32TH david_sagar@inmarsat.orgN/A109. Sato, Mashaiko 2-4-1 Hamamatshuko, Minatoku, Tokyo105-8060, Japan110. Schmidt-Tedd B.Dr.** Ensener Weg 2650999 Cologne, GERMANY111. Schrogl, Kai-Uwe Dr.** Deutsches Zentrum fü r Luft- und Raumfahrte.V. (DLR), Porz-Wahnheide, Linder HöheD-51147 Cologne, Germany112. Shemel, Hans Joachim Exec. Office Federal Ministery of Ministryof Eco. Ref. V II A4 Scharnhorststr. 3610115 Berlinsatoh.masahiko@nasda.go.jpBernhard.schmidt-tedd@dlr.deSCHROGL.vo-stvo.kp@vo-st-s2.vo.kp.dlr.debuero-VIIA4@bonnl.bmwi.bund400113. Shoham, Tzevi Rafael, Code Ml PO.Box 2250 Haifa, Israel shohamz@rafael.co.il114. Smith, Bradford Lee Alcatel IPD, 30 Ave, Kleber, 75116 Paris,FranceBradford-Lee. Smith@alcatel.fr115. Spude, Mathias Dr. Daimler Chrysler Aerospace AG, SpaceInfrastructure, PO Box 286156 D-28361Bremen, Germany116. Stanford, Martin John UNIDROIT, Via Panisperna 28,00184Roma, Italymathias.spude@ri.dasa.deunidroitrome@unidroit.org

231No Name Address E-Mail117. Stephens, Robert Martin Office of the General Counsel, NASAHeadquarters, 300 E Street SW,Washington DC 20546, USA118. Stems, Patricia M Law offices of Stern and Tennen, 849 N. 3 rdAve., Phoenix, Arizona 85003, USA119. Sugita, Naoko National Space Development Agency ofJapan 2-4-1, Hamamatsu-cho, Minato-ku,Tokyo, Japan, 1058060120. Sybesma-nee Knol, Neri Smaradlaan 15,1640 St Genisus, Rode,Belgiumrstephen@hq.nasa.govpms@astrolaw.comsugita.naoko@nasda.gn.jpcsybesma@vub.ac.be12 1. Szyjko, Cezary Tomasz 01-315 Warzaw, Lazurowa 6/35, Poland N/A122. Tatsuzawa, Kunhiko 1-10-58 Nishi, Kunitachi-shi, Tokyo, Japan N/A123. Tennen, Leslie I. Law offices of Stern and Tennen, 849 N. 3rdAve., Phoenix, Arizona 85003, USAltennen@astrolaw.com124. Tessjolkin, Sergei 42 Schepkina Str Moscow, 129090, Russia teselkin@rka.ru125. Traub, Kit US misson to the UN in Vienna, Oberstiner11/1 A-1190 Viennatiaubhs@state.gov126. Trebesch, Jochen Foreign Office D-53113 Bonn Germany127. Van Fenema, Peter**** Institute of Air and Space Law,University of Leiden,Hugo de Grootstraat 27,P.O.Box 9520,2300 RA Leiden, THE NEDERLANDS128. Veshchunov V. S.*** ISOC Intersputnik, Smolensky per.l/4Moscow, RussiaPvanfenema@hotmail.comdir@intersputnik.com129. Von der Dunk, Frans Dr.***(**)International Institute of Air and Space LawHugo de Grootstraat 272311XK Leiden,THE NETHERLANDSF.G.vonderdunk@law.leidenuniv.nl130. Weber, Jan A-1100 Vienna, Holzknechtstr. 64/98,AustriaJWFK@AON.AT131. Wiessner, Siegfried St. Thomas University School of Law,16400 N.W. 32nd Ave. Miami FL, 33054,USAwiessner@stu.edu

232No Name Address E-Mail132. Wiradipradja, Saetullah Indonesian Center for Air and SpaceLaw,Fac. Of Law, Padjadjaran Univ.Jl. Imam Bonjol No. 21, Bandung 40132,Indonesia133. Yakovenko, Alexander V.*** Erzherzog Karl Strasse 182,1220 Vienna,AUSTRIA134. Yoshida, Hiroshi 2F YS Kaigan Bldg. 2-2-6 Kaigan ManatokuTokyo 105-0022, Japan135. Zago, Hans Dieter DLR German Aerospace, Center LinderHoehe 51170, Koeln136. Zhang, Xianggun 2A Gangamen Nanjie, Xuanwugu, Beijing,P R China 10053 CNSA137. Williams, Maureen Prof. Dr. Univ. De Buenos Aires Fac. De Dechech yCiencias Social es Miguletes 923,1426Buenos Aires Argentinaesw@unpad.ac.idN/Ayoshida@csp.co.jph.d.zago@dlr.decnsagov@public.bta.net.cn* = Chair ** = Coordinator/Rapporteur *** = Commentator **** = Discussion Paper Author