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

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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
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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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SESSION EIGHTMaintaining the Space
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220Session 3: Wednesday. 21 July. 1
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223Annex IITHIRD UNITED NATIONS CON
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225No Name Address E-Mail27. Ersfel
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227No Name Address E-Mail57. Koloso
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