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

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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
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ST/SPACE/2Office for Outer Space Af
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IntroductionThe Workshop on Space L
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CONCLUSIONS AND PROPOSALS OF THEWOR
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3between public and private law and
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8obstacles that impede ratification
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SESSION ONEExisting United Nations
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EXISTING UNITED NATIONS TREATIES: S
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48low earth orbit. This commercial
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SESSION FOURExpanding Global Remote
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THE ROLES OF INTERNATIONAL ORGANIZA
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