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

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).