International Space Law and Satellite Telecommunications
- Elina MorozovaElina MorozovaIntersputnik International Organization of Space Communications, International & Legal Service
- and Yaroslav VasyaninYaroslav VasyaninIntersputnik International Organization of Space Communications, International & Legal Service
International space law is a branch of international law that regulates the conduct of space activities. Its core instruments include five space-specific international treaties, which were adopted under the auspices of the United Nations. The first and the underlying one—the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty)—establishes that outer space is free for exploration and use by all states. Such fundamental freedom is exercised by a number of space applications that have become an integral part of modern human life and global economy. Among such applications, satellite telecommunications is the most widespread, essential, and advanced.
Indeed, since 1957 when the Soviet Union launched Sputnik 1, the first artificial satellite merely capable of continuous beeping during its 21-day trip around the globe, space technologies have progressed in leaps and bounds. Cutting-edge satellite telecommunications methods ensure instant delivery of huge amounts of data, relay of real-time voice and video, broadcasting of radio and television, and Internet access worldwide. By transmitting signals over any distance telecommunications satellites connect locations everywhere on Earth.
A telecommunications satellite’s lifetime, starting from the launch and ending at de-orbiting, is governed by international space law. The latter considers satellites as “space objects” and regulates liability, registration, jurisdiction and control, debris mitigation, and touches upon ownership. Therefore, the first large group of international law rules applicable to satellite telecommunications includes provisions of three out of five UN space treaties, specifically, the 1967 Outer Space Treaty, the 1972 Convention on International Liability for Damage Caused by Space Objects, and the 1976 Convention on Registration of Objects Launched into Outer Space, as well as several UN General Assembly resolutions.
To carry out a communication function, satellites need to be placed in a certain orbit and to use radio-frequency spectrum, both limited natural resources. Access to these highly demanded resources, which are not subject to national appropriation and require rational, efficient, and economical uses in an interference-free environment, is managed by the International Telecommunication Union (ITU)—the UN specialized agency for information and communication technologies. The ITU’s core regulatory documents are its Constitution, Convention, and the Radio Regulations, which collectively make up another group of international law rules relevant to satellite telecommunications.
Both groups of international law rules constitute the international legal regime of satellite telecommunications and face the challenge of keeping pace with technology advancement and market evolution, as well as with a growing number of states and non-state actors carrying on space activities. These tangible changes need to be addressed in the regulatory framework that cannot but serve as a driver for further development of satellite telecommunications.
The beginning of the space age in 1957 made people dream of outer space and anticipate a wide spectrum of space applications. At that time, some believed that by the next millennium space travel, inhabited space stations, human settlements on other planets, and observation of the whole universe would be common. Yet, the more attempts made to explore and use outer space the more technological, financial, and political challenges arose, which proved human conquest of space to be challenging. Even though there is still much to be done to domesticate space, humanity made tremendous progress in a few pragmatic types of space activities, one of which—satellite telecommunications—soon became the most widespread of all space applications.
The first practical tests aimed at linking different locations on the Earth via outer space started in 1958. Their encouraging results proved the feasibility of telecommunications satellites and marked the birth of a whole new industry. The benefits of satellite telecommunications promptly expanded its usage and made satellite technologies indispensable for people’s everyday life, thus ensuring a rapid and a steady growth of the satellite industry.
Hundreds of telecommunications satellites orbiting the Earth (Union of Concerned Scientists, 2018) provide instant delivery of huge amounts of data, relay of real time voice and video, broadcasting of radio and television, and Internet access worldwide. In terms of economics, satellite telecommunications make up by far the largest sector of the global space industry (Satellite Industry Association, 2018). Satellite telecommunications have, therefore, the biggest impact on human life on Earth among all of the existing space applications.
In the context of public international law, satellite telecommunications are addressed by two major blocks of rules. On the one hand, satellite telecommunications are space activities and therefore regulated by international space law, which is mainly developed within the framework of the UN Committee on the Peaceful Uses of Outer Space (COPUOS). On the other hand, the functioning of telecommunications satellites is impossible without utilizing radio frequencies and associated satellite orbits subject to the telecommunications legal regime established by the International Telecommunication Union (ITU). Both blocks of rules must be equally considered when a telecommunications satellite system is planned to be deployed and operated. Therefore, the international legal regime of satellite telecommunications analyzed in this article includes provisions of international space law and the ITU regime; however, other branches of international law, including the regime of the World Trade Organization, as well as national legislations (particularly export control rules), can also be relevant to satellite telecommunications making the applicable legal regime complete.
History and Development of Satellite Telecommunications
The first ideas of using artificial Earth satellites as a means of communications date back as early as 1869 when an American clergyman Edward Everett Hale, in a short story entitled “The Brick Moon,” described the launch of a big round satellite made of bricks. According to the story, such a structure was to reflect Morse code signals, allowing mariners to communicate with each other and with the land (Hale, 1869). Due to swift development of technologies in the late 19th and the early 20th centuries, the possibility of communications via satellites in space ceased to be a topic of science fiction only. Subsequently, the matter of satellite telecommunications was briefly addressed in the works of numerous engineers and scientists, including those who were later recognized as pioneers of astronautics such as Herman Potočnik and Hermann Oberth.
The feasibility of satellite communications was first comprehensively justified by Arthur C. Clarke in the technical paper “Extra-Terrestrial Relays—Can Rocket Station Give World-Wide Radio Coverage” published in 1945. In this work, Clarke proposed to deploy a space station “provided with receiving and transmitting equipment” in an orbit “with a radius of 42 000 km” (counted from the center of the Earth), “period of exactly 24 hours” and a plane that “coincides with that of the Earth’s equator.” According to Clarke, such a station would be “stationary above the same spot on the planet” and could “act as a repeater to relay transmissions between any two points on the hemisphere beneath” (Clarke, 1945). Furthermore, a constellation of three such stations “arranged approximately equidistantly around the Earth,” specifically at 30° E, 150° E, and 90°W, would be able to provide global coverage. This famous article laid the theoretical foundation for the future development of satellite communications.
Although the first concepts of communications satellites could have some distinctions, one common aspect was obvious from the beginning—every satellite communications system consists of two major components: ground and space segments. The ground segment includes stations located either on the surface of the Earth or in the atmosphere and acts as transmitter or receiver of signals. Ground stations can be stationary or mobile (e.g., installed on a vessel or an aircraft). The space segment is composed of one or more satellites deployed in a designated orbit and equipped with radio hardware. Generally, the functioning of a satellite system implies that a ground station uplinks a signal to the satellite that eventually relays it back to the Earth where the signal is received by another ground station.
From Theory to Practice
The first artificial satellite was equipped with an onboard radio transmitter that worked on two frequencies (20.005 and 40.002 MHz) and sent signals that were detectable by every radio amateur (Gunter’s Space Page, 2019f). However, Sputnik 1 was designed for a mere demonstration of technical capabilities and scientific purposes and could not send or relay data from one point on the Earth to another.
Shortly, more pragmatic purposes of using satellites started to be examined. During the following years, the Soviet Union and the United States launched a number of projects on the development of various satellite communications systems of both passive and active classes. Passive satellites could only reflect signals coming from the source toward a receiver without amplifying it, while active satellites were capable of amplifying signals before retransmitting them back to the Earth. Generally, passive satellites are much simpler and less expensive than active ones; however, non-amplified signals reflected from passive satellites are rather weak and require more sophisticated ground equipment.
Rather unexpectedly though, it was an active communications relay system that was tested first. In the end of 1958, under the Project named SCORE (Signal Communication by Orbiting Relay Equipment), the United States launched a satellite into an elliptical low Earth orbit which was equipped with a tape recorder and radio hardware. The SCORE satellite transmitted the first message from space to Earth. It was Christmas greetings from the U.S. President Dwight D. Eisenhower wishing “peace on Earth and goodwill toward men everywhere” (Gunter’s Space Page, 2019e).
Less than two years later, in August 1960, the newly established U.S. National Aeronautics and Space Administration (NASA) launched the Echo 1A satellite into almost circular low Earth orbit and tested the first passive communications system. A 30.5-meter diameter aluminum-coated balloon, which contained no instrument and was only able to reflect signals from the ground, established the first voice satellite communication and the first coast-to-coast satellite telephone call (NASA, 2019). Despite satisfactory results of the Echo program, NASA decided to abandon passive communications systems in favor of active satellites after the Echo 2 mission was completed.
The following years saw a number of experimental communications satellites launches such as Courier 1B (Gunter’s Space Page, 2019a) , Telstar 1 (Gunter’s Space Page, 2019h), and Relay 1 (Gunter’s Space Page, 2019d), all of which were deployed in different low Earth orbits. However, the future development of satellite communications was inseparably connected with the use of the geostationary satellite orbit.
Geostationary Satellite Systems
The geostationary satellite orbit is a particular case of the geosynchronous orbit and in the terms of the ITU can be defined as a circular and direct orbit of an Earth satellite whose period of revolution is equal to the period of rotation of the Earth about its axis, which lies in the plane of the Earth’s equator (Radio Regulations, 2016). Such characteristics can be achieved only at an altitude close to 35,786 kilometers and directly above the equator. It means that the geostationary satellite orbit is a physically limited space at a specific altitude and in the plane of the Earth’s equator having the form of a ring or a doughnut. This limited satellite orbit happened to be the most convenient for satellite communications owing to two main reasons. First, a geostationary satellite always remains fixed relative to the Earth, meaning that ground stations do not need to use complex tracking equipment to maintain communications with the satellite. Secondly, a satellite deployed into the geostationary orbit provides the coverage of almost one third of the Earth’s globe. Therefore, a satellite system comprising three geostationary satellites would have nearly a global coverage.
An attempt to use a geosynchronous orbit for satellite communications was made for the first time in 1963. The Syncom 1 satellite was launched by NASA into a 24-hour orbit with an inclination of about 30° over the Atlantic Ocean. The launch itself was successful; however, the contact with the satellite was lost after few days of operations. That same year, the Syncom 2 satellite, which became the first geosynchronous satellite, was placed at the geosynchronous orbit over the Atlantic Ocean and Brazil at 55° W with the inclination of 33° and successfully demonstrated the feasibility of communications satellites, including transmission of voice, teletype, facsimile, and data. Finally, the next one in the Syncom-series satellites—Syncom 3—was placed at the 180° E geostationary orbital position. It provided live television coverage in the Pacific Ocean region, including the broadcasting of the 1964 Olympic Games in Tokyo, Japan (Gunter’s Space Page, 2019g).
The Soviet Union’s Experience
Due to the physical characteristics of the geostationary orbit, a geostationary communications satellite can view regions located at latitudes above 60° from a low angle only. It means that broadcasting to these latitudes requires considerably higher power. Moreover, a geostationary satellite is completely unable to cover latitudes above 81°. As the northern regions of the Soviet Union are located at high latitudes, the Soviets chose a different path in establishing satellite communications. Soviet engineers developed the Molniya system, which consisted of satellites in highly elliptical 12-hour orbits later dubbed the “Molniya orbit.” Such system was better suited for communications in northern regions since they were directly covered from large portions of the Molniya orbit. Three satellites could provide long-distance communications coverage for the entire Soviet Union. However, since the ground stations required a steerable antenna to track the satellite, links had to be switched between satellites, and the range to satellites varied, there was a greater need for station keeping (Encyclopedia Astronautica, 2019).
The first successful launch of the Molniya series satellite happened in 1965. Molniya 1 carried five communication transponders that were used for bidirectional telephone, telegram, and fax transmissions or, alternatively, for television broadcast (Gunter’s Space Page, 2019c). By 1967, six Molniya satellites provided coverage throughout the Soviet Union. In 1967, the parade on Red Square commemorating the 50th anniversary of the Soviet Union was broadcasted nationwide via the Molniya satellite network. In Soviet times, the full constellation consisted of eight spacecraft in four orbital planes. Some Molniya series satellites were operational until the beginning of the 21st century and provided both military and civilian broadcasting including the Orbita television network spanning the Soviet Union. Later the Soviet Union would use both geostationary and non-geostationary satellite communications systems.
First Commercial Communications Satellite
In 1962, the U.S. Congress adopted the Communications Satellite Act and thereby created Communications Satellite Corporation (COMSAT), a private entity authorized to develop a global commercial satellite communications system. The construction of COMSAT’s first communications satellite was contracted to Space and Communications Group of Hughes Aircraft Company later becoming Boeing Satellite Systems. The Early Bird satellite, also known as Intelsat 1, was launched into the 28° W longitude geostationary orbital position in 1965. It was equipped to carry telephone, television, telegraph, and facsimile transmissions and provided line-of-sight communications between Europe and North America and successfully demonstrated the concept of geostationary satellites for commercial communications (Gunter’s Space Page, 2019b).
Satellite Telecommunication Organizations
The American COMSAT was not the only to place interest in establishing a global satellite communications system. Other states were also keen to deploy such systems; however, back then, only a few of them had sufficient funds and even fewer possessed technical capabilities. Therefore, further development of space communications was marked by states’ cooperation in the form of intergovernmental satellite telecommunication organizations, both global and regional. The latter were established to meet specific requirements of a particular region or a group of states.
However, the continuous development of space technologies made outer space more accessible, and in the late 1980s the first private satellite operators, including PanAmSat and SES, were capable of competing with intergovernmental organizations. The following liberalization of the telecommunications market led to the privatization of most intergovernmental organizations and marked the beginning of the commercialization of outer space.
International Telecommunications Satellite Organization (INTELSAT/ITSO)
The history of the International Telecommunications Satellite Organization, initially known as INTELSAT (and later renamed ITSO), began in 1964 when 19 countries, including the United States, Canada, France, and the United Kingdom, decided to pool their resources in deploying a single global commercial communications satellite system and signed the Agreement Establishing Interim Arrangements for a Global Commercial Communications Satellite System. Officially, INTELSAT was founded in 1973 when the permanent Agreement Relating to the International Telecommunications Satellite Organization of 1971 entered into force.
INTELSAT’s activity was guided by the principle set forth in the UN General Assembly Resolution 1721 (XVI), which established that communication by means of satellites should be available to the nations of the world as soon as practicable on a global and non-discriminatory basis (INTELSAT Agreement, 1971, Preamble). The main purpose of INTELSAT was “to continue and carry forward on a definitive basis the design, development, construction, establishment, operation and maintenance of the space segment of the global commercial telecommunications system” (INTELSAT Agreement, 1971, Art. 2).
During 1964–2001 INTELSAT successfully operated as an international intergovernmental organization. It grew to almost 150 members and established a system of 19 satellites, with the capability of providing various satellite services (ITSO, 2019). In 2001, in order to secure the long-term viability of its communications system on the market and to attract private investments, INTELSAT underwent an important restructuring—its global satellite system and the brand name were transferred to a newly established private entity—Intelsat Ltd. The international organization itself continued functioning under the new acronym ITSO, and with a new mission—to monitor the performance of Intelsat Ltd.’s public service obligations, including, above all, the Lifeline Connectivity Obligation, as well as to safeguard the Common Heritage of the ITSO member states—orbital locations and associated frequencies initially assigned to INTELSAT and transferred, after privatization, either to the United States or the United Kingdom (ITSO, 2019). As a result, Intelsat’s global communications network has expanded significantly through new launches and acquisitions. Intelsat remains one of the leading global satellite communications providers.
The Intersputnik International Organization of Space Communications (Intersputnik)
Due to mostly political reasons, the Soviet Union and other states members of the Council for Mutual Economic Assistance decided not to access to the INTELSAT system but rather deploy their own. For this purpose, in 1971 nine states, including the Soviet Union, East Germany, and Czechoslovakia, signed the Agreement on the Establishment of the Intersputnik International System and Organization of Space Communications. Since then, the number of participants of this agreement grew to 26 states (UNOOSA, 2019). The main objective of Intersputnik was to ensure co-operation and co-ordination of efforts in the design, establishment, operation, and development of the communications system via satellites (Intersputnik Agreement, 1971, Art. 1). At the turn of the century, Intersputnik underwent considerable structural changes provoked by the commercialization of satellite communications; however, as opposed to ITSO, it kept its international status. Such changes did not allow Intersputnik to accumulate enough funds for its own satellites’ deployment, and the Intersputnik international system of space communications includes satellite capacity leased from other satellite operators, including those which utilize orbits and frequencies assigned to Intersputnik.
International Mobile Satellite Organization (INMARSAT/IMSO)
The International Mobile Satellite Organization (INMARSAT) was established in accordance with the convention of 1976 developed under the auspices of the International Maritime Organization. Initially it was known as the International Maritime Satellite Organization since its satellite system aimed at ensuring safety of life at sea and the proper functioning of the Global Maritime Distress and Safety System (GMDSS), as well as providing vessels with means of communicating with the land (INMARSAT Convention, 1976). The mandate of INMARSAT was later extended to provide satellite capacity for land mobile and aeronautical communications. Consequently, the name of the organization was changed to reflect the amended purpose (IMSO, 2019b).
In 1999, after twenty years of a successful operation, member states of INMARSAT decided to challenge a rapidly growing competition from private satellite operators and pioneered the first privatization of an international intergovernmental organization. As results of the restructuring, INMARSAT was renamed IMSO, and a private company Inmarsat was incorporated. Satellites and other assets were transferred to this company that continued to manage the GMDSS either at no cost or at special rates. Inmarsat also provides telephone and data services to users worldwide, via portable or other mobile terminals, which communicate with ground stations through geostationary communications satellites (IMSO, 2019a).
European Telecommunications Satellite Organization (EUTELSAT)
In 1977, 17 members of the European Conference of Postal and Telecommunications Administrations established the European Telecommunications Satellite Organization (EUTELSAT). The main purpose of EUTELSAT was the design, development, construction, establishment, operation, and maintenance of the space segment of the European telecommunications satellite system or systems (EUTELSAT Convention, 1982). The organization developed a constellation of five Hot Bird satellites in the mid-1990s to offer capacity that would be able to attract hundreds of channels to the same orbital location, appealing to widespread audiences for consumer satellite television (EUTELSAT, 2019a). With the general liberalization of the world telecommunications sector, in 2001 EUTELSAT’s assets, liabilities, and operational activities were transferred to a private company called Eutelsat S.A. The structure, role, and the activities of the remaining intergovernmental organization EUTELSAT evolved. The main purpose of the EUTELSAT IGO is to ensure that Eutelsat S.A. observes its universal service obligations, pan-European coverage by the satellite system, non-discrimination, and fair competition; and it can use, for these purposes, radio frequencies assigned to EUTELSAT IGO (Amended Convention, 2001). As a result, the number of the EUTELSAT IGO member states more than doubled (EUTELSAT, 2019b), while Eutelsat S.A.’s satellite fleet managed to cover about two thirds of the world population (Eutelsat S.A., 2019).
Arab Satellite Communications Organization (Arabsat)
The Arab Satellite Communications Organization (Arabsat), which was founded in 1976 by 21 member states of the Arab League, is another example of a regional satellite communications system (Arabsat, 2019a). Despite the global trend associated with the commercialization of satellite telecommunications, Arabsat keeps its international intergovernmental status without significant changes and operates geostationary satellites offering the full spectrum of broadcast and telecommunications services (Arabsat, 2019b).
International Space Law
Satellite telecommunications is based on the use of satellites—human-made objects launched into outer space and placed in orbits around the Earth—to provide communications channels between different locations on the Earth. Therefore, irrespective of the exact architecture of a satellite telecommunications system, which may provide for a different number of satellites of various technical characteristics using different satellite orbits, satellite telecommunications engage in space activity regulated by international space law.
International space law is a branch of public international law which establishes a legal regime for the exploration and use of outer space. Shortly after the launch of Sputnik 1, the UN General Assembly urged states to reach an agreement which would provide, among other things, assurance that sending objects through outer space shall be exclusively for peaceful purposes. For a comprehensive study of the nature of legal problems that could arise from the exploration and use of outer space, in 1958 the UN ad hoc Committee on the Peaceful Uses of Outer Space (COPUOS) was created (General Assembly Resolution 1348, 1958), which received its permanent status a year later (General Assembly Resolution 1472, 1959) and became the main international forum for the development of space law.
The Sources of International Space Law
In 1963, COPUOS drafted the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (Declaration of Legal Principles), which was solemnly and unanimously adopted by a UN General Assembly Resolution (General Assembly Resolution 1962, 1963). The Declaration of Legal Principles was, however, of a non-binding character. Therefore, the next UN General Assembly Resolution recommended that COPUOS should consider incorporating legal principles governing the activities of states in the exploration and use of outer space in the form of a binding international treaty (General Assembly Resolution 1963, 1963).
International space law is generally associated with the five UN treaties on outer space. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), being the first and the most fundamental, was approved by the UN General Assembly in 1966 and opened for signature and ratification in 1967 (General Assembly Resolution 2222, 1966). With more than hundred states parties (UNOOSA, 2019), the Outer Space Treaty is the foundation of international space law.
The Outer Space Treaty reiterated main provisions of the Declaration of Legal Principles and was primarily aimed at setting forth general principles of the exploration and use of outer space. These principles were further developed by the other four international treaties drafted within COPUOS, specifically the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of 1968 (Rescue Agreement), Convention on International Liability for Damage Caused by Space Objects of 1972 (Liability Convention), Convention on Registration of Objects Launched into Outer Space of 1975 (Registration Convention), and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979 (Moon Agreement).
The Moon Agreement was ratified by the least number of states, including few space powers (UNOOSA, 2019), and marked the end of the development of international space law through binding instruments. Since then, international space law evolved through non-binding instruments adopted by the UN General Assembly Resolutions.
These, in addition to the Declaration of Legal Principles, include the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (General Assembly Resolution 37/92, 1982), Principles Relating to Remote Sensing of the Earth from Outer Space (General Assembly Resolution 41/65, 1986), Principles Relevant to the Use of Nuclear Power Sources in Outer Space (General Assembly Resolution 47/68, 1992), and some other instruments developed within the COPUOS and approved by the UN General Assembly, including Recommendations on enhancing the practice of states and international intergovernmental organizations in registering space objects (General Assembly Resolution 62/101, 2007), Recommendations on national legislation relevant to the peaceful exploration and use of outer space (General Assembly Resolution 68/74, 2013), and COPUOS Space Debris Mitigation Guidelines (UNOOSA, 2007). Despite the non-binding nature of these instruments, states have largely complied with them, among other things, through incorporation in national legislations.
Satellite Telecommunications and the Provisions of International Space Law
The provisions of international space law have general character and are equally applicable to all types of space activities, including satellite telecommunications. In this respect, provisions of international space law applicable to satellite telecommunications should be carefully considered by states drafting their domestic legislations and satellite operators carrying out this type of space activity.
Freedom of Use
According to the Outer Space Treaty, outer space shall be free for exploration and use by all states (General Assembly Resolution 2222, 1966). This freedom is subject to other provisions of international space law and international law in general; however, it is a fundamental principle of the legal regime applicable to space activities. Practically, such freedom is exercised by various space applications, including meteorology, remote sensing, positioning, navigation, and timing, some of them being an integral part of modern human life. In the context of satellite telecommunications, it also means that both state and non-state actors (i.e., private companies) acting, however, under authorization and continuing supervision of an appropriate state, can enjoy this freedom by deploying satellite communications systems.
One of the most fundamental principles of international space law states that outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means (General Assembly Resolution 2222, 1966). In legal terms, it means that outer space, including the Moon and other celestial bodies, is declared to be res extra commercium and therefore states can neither own nor exercise any jurisdiction over any part of outer space.
At the same time, placing a telecommunications satellite in the geostationary satellite orbit or deploying a constellation of satellites in other satellite orbits is not considered appropriation. When deploying satellite telecommunications systems, satellite operators do not get any proprietary rights on these orbits, which are essential parts of outer space and can only use them on a temporary basis and in accordance with international space law and the instruments of the International Telecommunication Union. Since the ITU legal regime does not prescribe any limits on how long an operator can use specific orbital slots and planes, their temporary utilization can actually last for decades provided that all the ITU requirements are met.
The exploration and use of outer space shall be carried out in the interest of maintaining international peace and security and promoting international cooperation (General Assembly Resolution 2222, 1966). There exist two main approaches as to what is meant by peaceful purposes. The prevailing view is that space activities that comply with international law, and the UN Charter in particular, are peaceful. Following this approach, satellite telecommunications that are utilized by the military or have a dual application are in line with the peaceful usage of outer space as long as international law is abided by. According to the less common approach, only non-military space activities are peaceful. Consequently, any military space activities, including military satellite telecommunications, would run counter to the use of outer space for peaceful purposes.
Celestial bodies, the definition of which may include orbits around them, shall be used exclusively for peaceful purposes (General Assembly Resolution 2222, 1966; General Assembly Resolution 34/68, 1979). The latter makes it doubtful whether telecommunications based on a satellite orbiting the Moon can be operated for military purposes, which is not prohibited in case the Earth orbits are involved.
International Responsibility for Satellite Telecommunications
Article VI of the Outer Space Treaty places international responsibility on states for their national space activities, which includes activities of both governmental agencies and nongovernmental entities. Additionally, Article VI of the Outer Space Treaty states that space activities of nongovernmental entities shall require authorization and continuing supervision by the appropriate state. This obligation is commonly fulfilled by states by including in their domestic legislations mandatory licensing procedures and other similar requirements. Such requirements fully apply to operators, which have to obtain all the necessary licenses and authorizations, as well as comply with all other statutory requirements in order to carry out satellite telecommunications. Therefore, a state shall assure that its national space activities are carried out in conformity with the provisions of the Outer Space Treaty and can be held internationally responsible if, for example, a satellite operator under its jurisdiction fails to follow the treaty’s provisions.
According to that same Article VI, when states are parties to international intergovernmental organizations, they are also responsible for compliance with the provisions of the Outer Space Treaty of such organizations’ space activity. This is the case of the Intersputnik and the Arabsat international organizations, which member states can be held responsible for these organizations’ failure to act in conformity with the Outer Space Treaty when providing satellite telecommunications. For instance, noncompliance of one of these organizations with the applicable rules of the UN Charter may be considered a violation of Article III of the Outer Space Treaty and, consequently, lead to responsibility of its members.
Registration of Satellites
In the context of international space law, all satellites are space objects, irrespective of their technical characteristics, general function, and other possible particularities. In this regard, they are subject to the rules and requirements that international space law applies to space objects, including the obligation of their registration, among other rules.
In 1961, the UN General Assembly adopted Resolution 1721 (XVI), which for the first time invited states launching objects into orbit or beyond to furnish information to the UN Secretary-General for the registration of launchings. The Declaration of Legal Principles (Principle 7) and the Outer Space Treaty (Art. VIII) referred to states on whose registry space objects were carried, however, without specifying the exact mechanism of registration. A complete system of registration was finally established in 1976 with the entry into force of the Registration Convention (UNOOSA, 2019).
Under the international space law, each state that launches or procures the launching of a space object or from whose territory or facility a space object is launched is considered a launching state (General Assembly Resolution 2777, 1971; General Assembly Resolution 3235, 1974). In accordance with Article II of the Registration Convention such state shall establish a national registry of objects launched into outer space, inform the UN Secretary-General of its establishment, and include in such registry its space objects—this being applicable to telecommunications satellites. When there are two or more launching states in respect of a single satellite, such states should jointly determine which one of them shall register it. There are no obligatory rules on which state (out of several launching states) is to register a space object; however, the UN General Assembly recommended that space objects be included on a registry of the state which is responsible for national operator’s space activities under Article VI of the Outer Space Treaty (General Assembly Resolution 62/101, 2007). A state on whose registry a satellite is carried is considered its state of registry.
Notification of the UN Secretary-General
As set forth in Article IV of the Registration Convention, states of registry shall furnish the UN Secretary-General with information concerning each space object carried on their registries, including the name of launching states for the satellite, an appropriate designator of the satellite or its registration number, date and territory or location of launch, basic orbital parameters, and general function of the satellite. The Registration Convention also requires states to notify the UN Secretary-General of satellites registered by them that are no longer in Earth orbit (General Assembly Resolution 3235, 1974). Also, states are invited to provide, from time to time, additional information concerning satellites carried on their registries, which may include the geostationary orbit location, any change of status in operations or in supervision of the satellite in orbit, and other (General Assembly Resolution 62/101, 2007). For example, it is advisable to notify the UN Secretary-General about the transfer of ownership over a satellite in orbit and the name of the new satellite operator. As instructed by the UN Secretary-General, the UN Office for Outer Space Affairs (UNOOSA) ensures the receipt of all the information on space objects submitted by states and intergovernmental organizations and its inclusion into the UN Register of Objects Launched Into Outer Space.
Jurisdiction and Control Over Satellites
According to Article VIII of the Outer Space Treaty, a state of registry retains jurisdiction and control over the satellite that is carried on its national registry. In such a manner, states are concurrently entitled and obliged to exercise quasi-territorial jurisdiction and control over their space objects, even when in outer space, regardless whether they are public or private property. As jurisdiction and control set forth in the Outer Space Treaty are international law concepts, they cannot be exercised by a private company and rest with a state. Moreover, as there are no provisions in international space law entitling a launching state to renounce liability, there is also no right of a state of registry to renounce jurisdiction and control. A mere declaration of a satellite’s abandonment does not itself remove obligations from its state of registry.
At the same time, jurisdiction and control under Article VIII of the Outer Space Treaty are different from the operational control in the form of the telemetry, tracking, and command (TT&C) and ownership of a satellite, both of which can be enjoyed by a private company.
Ownership of Satellites
Article VIII of the Outer Space Treaty states that ownership of space objects is not affected by their presence in outer space or on a celestial body, or by their return to the Earth. For satellite operators, including commercial ones, it means that they can possess, as well as freely dispose of, telecommunications satellites during their whole lifetime—on or before their launch into outer space, when in orbit, and upon their return to the Earth. International space law contains no limitations for national laws’ considering satellites as objects of property rights, provided that such national laws themselves can impose specific rules and limitations, including preliminary approval of the transfer of satellite by a competent national authority. Many examples of sale and purchase of satellites, including in-orbit ones, are known. Property rights over satellites can also be transferred in the course of mergers and acquisitions, foreclosure of pledge, insolvency and bankruptcy, and others.
Return of Satellites
Regardless of the ownership of a satellite, in case of its planned or unintended landing on the territory of a third state, for example, as a result of a failure during the launch or an anomaly while in outer space, such satellite shall be returned to its state of registry (General Assembly Resolution 2222, 1966). The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, which was developed in furtherance of the above rule, provides, however, for the satellites’ return to, or their being kept at the disposal of, the so-called launching authority (General Assembly Resolution 2345, 1967). The procedure for returning such a space object to its owner, whether public or private, might be provided for in domestic legislation. Since international space law does not contain an obligation to remove from orbit satellites that become non-functional, such requirements and associated procedures may also be established in domestic legislation. In this case, states may be guided by the Space Debris Mitigation Guidelines of the COPUOS endorsed by the UN General Assembly in 2007 and other non-binding documents on the issue.
Liability for Damage Under International Space Law
The question of liability has always been one of the most crucial in international space law and is relevant to satellite telecommunications in the context of damage that can be caused by satellites. The Declaration of Legal Principles (Principle 8) and the Outer Space Treaty (Art. VII) state, almost verbatim, that each launching state is internationally liable for damage to another state or to its natural or juridical persons caused by its space object or its component parts on the Earth, in air space, or in outer space. This principle of a general character received further clarifications in the Liability Convention, specifically, with regard to cases of liability, limitation of liability, arbitration procedure, and applicable law, which represents one of the most significant sources of international space law with a wide support by the international community (UNOOSA, 2019). Yet, the liability mechanism provided for by the convention has never been fully implemented so far, although such a possibility was discussed in respect to the crash of the Soviet Cosmos 954 satellite in Canada in 1978 and fall of the debris of the American Skylab station in Australia in 1979.
International liability under the Liability Convention is placed on all launching states of a satellite, while the notion of the launching state is defined rather broadly. Therefore, several states can be considered launching states and held liable for the same case of damage. For example, if a telecommunications satellite of an operator from state A is launched from the territory of state B with the assistance of a launch provider from state C, all these states A, B, and C may qualify as launching states and, therefore, be held liable if such satellite causes damage. For settling such cases, Article V of the Liability Convention sets up the rules of joint and several liability.
Two Types of Liability
According to Articles II and III of the Liability Convention, two types of international liability for damage caused by a satellite exist: absolute liability if damage is caused on the surface of the Earth or to aircraft in flight, and fault-based liability if damage is caused in outer space. For example, if damage is caused to a residential area on the surface of the Earth by the fall of a telecommunications satellite due to its launch failure, the launching state will be liable regardless whether it is in fault. Exoneration from absolute liability can be granted if the damage results, wholly or partially, from gross negligence or from an act or omission done with the intent to cause damage on the part of the claimer (General Assembly Resolution 2777, 1971). If damage is caused in outer space, for instance, by the collision of two telecommunications satellites, their launching states can only be held liable if damage results from their fault.
Limitation of Liability
Although the Liability Convention does not set any cap of liability—meaning that it does not legally matter how great the compensable damage might be, there are certain conditions of invoking liability. First, Article I of the Liability Convention defines damage that is to be compensated as the loss of life, personal injury, or other impairment of health; loss of or damage to property of states or of persons, natural or juridical, or property of international intergovernmental organizations. Therefore, it is generally believed that consequential and indirect damage is not compensable under the Liability Convention. As a result, a satellite operator will not be entitled to the recovery of lost profits caused by damage to its telecommunications satellite under the Liability Convention, although other relevant rules of international public law and national laws might be applied.
According to literal reading of Articles II–IV, damage has to be caused by a space object, for example, by a physical collision with a satellite. Thus, damage caused by radio interference or otherwise remotely might not be compensable under the Liability Convention.
Finally, the Liability Convention addresses international liability only, that is liability involving one or more states on both sides. According to Article VII, the Liability Convention does not apply to cases when damage is caused to nationals of the launching state or to foreign nationals participating in, or invited to, the launch.
Only states can bring claims under the Liability Convention according to the procedure set out in Articles VIII—XIII of the Liability Convention. If damage is caused to a natural or a juridical person, an appropriate state, for instance, the state of citizenship or incorporation, can bring claim on their behalf. Regarding the transfer of the received compensation, the Liability Convention does not bind states to pay any amounts to specific persons, including those who suffered damage. Neither the Liability Convention obliges persons who are caused the damage, to refund a respective state for what it has paid to compensate such damage. These issues can be regulated by domestic legislations. For instance, in a number of states, one of the conditions for obtaining a license to carry out space activities is obligatory insurance of liability for damage caused by such activities. In such cases, domestic legislations generally fix a specific amount of a required insurance coverage or introduce a formula for its calculation and, if the damage exceeds it, states themselves reimburse the difference.
Satellite Telecommunications and the Broadcasting Principles
At the beginning of the space era, operations of international direct broadcasting satellites had significant international political, economic, social, and cultural implications. The United States supported by other Western countries sponsored the principle of free flow of information, while the socialist states led by the Soviet Union considered direct broadcasting as a means of political propaganda that violates the basic principle of non-intervention into domestic jurisdiction. Since the international community had not been able to reach consensus on the issue, the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting were adopted by the majority of the UN General Assembly. However, a number of Western states, including the United States and the United Kingdom, believed that the proposed principles impeded the free flow of information and voted against (General Assembly Resolution 37/92, 1982).
According to section 1 of the Broadcasting Principles, activities in the field of international direct television broadcasting by satellites should be carried out, on the one hand, in a manner compatible with the sovereign rights of states, including the principle of non-intervention; on the other hand, with the right of everyone to seek, receive, and impart information and ideas as enshrined in the relevant UN instruments.
Section 13 of the Broadcasting Principles sets forth that a state which intends to establish, or authorize the establishment of, an international direct television broadcasting satellite service should notify, without delay, the proposed receiving states of such intention and promptly enter into consultation with any of those states which so requests. According to section 14 of the Broadcasting Principles, an international direсt television broadcasting satellite service can only be established after the conditions set forth in section 13 have been met. However, the Broadcasting Principles do not specify whether it is necessary to obtain a receiving state’s consent for broadcasting or it is enough to hold consultations regardless of their outcome. In any case, the prevailing practice shows that operation of broadcasting satellite over the territory of a foreign state is only possible after the receipt by the satellite operator of the so-called landing rights or other similar authorizations.
Section 14 of the Broadcasting Principles also states that an international direct television broadcasting satellite service should be carried out on the basis of agreements that can be reached in conformity with the relevant instruments of the ITU. The international telecommunications regime, in turn, provides that any receiving state can object to foreign satellite service being broadcasted over its territory (Radio Regulations, 2016, No. 23.13).
Global satellite internet systems are facing a similar problem—the deployment and operation of such systems do not contradict international space law, but the procedure for obtaining the right to provide services in foreign countries, also known as landing rights, is not regulated at the international level. In this regard, it appears that the work of such a system in a particular country is possible provided that the internal requirements of this state are met.
Regime of the International Telecommunication Union
Satellite communications systems are deployed in Earth orbit and use certain radio frequencies to operate the satellites and to receive and transmit signals. Both radio-frequency spectrum and associated satellite orbits are limited natural resources, which are utilized in conformity with the specific international telecommunications regime developed by ITU. The main sources of this regime are the ITU Constitution and Convention, as well as the Radio Regulations.
History of the International Telecommunication Union
ITU is one of the oldest international organizations and the oldest within the UN system. It was created under the name of the International Telegraph Union during the 1865 International Telegraph Conference held in Paris. At that time, ITU was responsible for supervising the mechanism of making amendments to the 1865 International Telegraph Convention signed by 20 states, which was aimed for standardization of telegraph equipment, setting uniform operating instructions, and laying down common international tariffs and accounting rules (ITU, 2019c). The invention of radio caused the need to establish international regulations for radiotelegraph communications. Therefore, in the course of the first International Radiotelegraph Conference held in 1906 in Berlin, 29 states set up the Radiotelegraph Section of ITU, which was later substituted by the ITU Radiocommunication Sector, and adopted the first radiotelegraph regulations that would subsequently become known as the ITU Radio Regulations (ITU, 2019c). In 1932, at the International Telegraph Conference in Madrid, a new name of the organization, the International Telecommunication Union, was adopted to reflect the whole range of its competence. At the same time, the 1865 International Telegraph Convention was combined with the 1906 International Radiotelegraph Convention to form the unified International Telecommunication Convention (ITU, 2019b). In 1947, ITU entered into an agreement with the newly created United Nations and was thereby recognized as the UN specialized agency for information and communication technologies. Due to the rapid growth of activities in space, including the launch of the first telecommunications satellites, the 1959 World Administrative Radio Conference in Geneva empowered ITU to handle space communications as well. Soon after, the 1963 Extraordinary Administrative Radio Conference (also known as the “Space Conference”) for the first time, allocated radio frequencies for various space services (ITU, 2019a).
Mission of the International Telecommunication Union
The significance and the necessity of the work of ITU can be explained by two objective factors. First, the radio-frequency spectrum and associated satellite orbits are limited natural resources. Consequently, ITU ensures that they are used rationally, efficiently, and economically and following the principle of equitable access to those resources (ITU Constitution, 2018, Art. 44). In this regard, states are called to limit the spectrum that they use to the minimum which is essential for the provision of necessary services in a satisfactory manner, and to apply the latest technical advances as soon as possible (ITU Constitution, 2018, Art. 44).
Secondly, there is a clear need to ensure interference-free utilization of the radio-frequency spectrum. Due to its physical characteristics, it is impossible to use the same frequencies in neighboring orbital locations without the risk of creating interference to other satellites. In this respect, ITU takes measures to avoid harmful interference between satellites, including coordination of efforts to eliminate such interference (ITU Constitution, 2018, Art. 1).
Therefore, the mission of ITU in the field of radiocommunications, which includes satellite telecommunications, can be described as ensuring rational, efficient, economical, and equitable use of the radio-frequency spectrum and associated satellite orbits in the interference-free environment.
ITU has three main mechanisms of fulfilling its mission, specifically, allocation of bands of the radio-frequency spectrum, allotment of radio frequencies, and registration of national assignments of radio-frequency spectrum and of any associated orbital positions (ITU Constitution, 2018, Art. 1).
The first step in the process of spectrum management is the allocation which can be described as reservation of frequency bands for the use by a specific radiocommunication service (Radio Regulations, 2016, No. 1.16). The Radio Regulations contain more than four dozen specific radio services for the purpose of allocation, half of which are space services (Radio Regulations, 2016, Nos. 1.19–1.60). The allocation of frequency bands is handled by World Radiocommunication Conferences (WRCs) entitled to amend the Radio Regulations and convened every three to four years (ITU Constitution, 2018, Art. 13). Considering technical, economic, and other developments, WRCs may decide to reallocate frequency bands from one radio service to another or allocate frequency bands that have never been allocated before. Current status of allocation of all frequency bands is laid down in the Table of Frequency Allocations of the Radio Regulations (Radio Regulations, 2016, Nos. 5.53–5.565).
Basically, the rights to use radio frequencies are obtained according to the “first come, first served” principle. However, with the entry of more and more satellites into Earth orbits, developing states became concerned that the most demanded frequencies and the most beneficial orbital slots would be occupied by the time they intend to launch their own satellites. In this regard, the 1977 WRC elaborated an alternative mechanism of spectrum management aimed at ensuring equitable access to orbital-frequency resources—the allotment of radio frequencies. According to this mechanism, certain radio frequencies are included in the so-called a priori plans and thereby reserved for the use by specific states (Radio Regulations, 2016, No. 1.17). As a result, each state, irrespective of its economic and technological development, is provided with the possibility to use radio-frequency spectrum. The plans, however, may lose their practical relevance over time, as they require updating to keep up with technological and market evolution.
A further aspect of the ITU spectrum management is the recognition of national assignment of radio frequencies and associated satellite orbits on international level (Radio Regulations, 2016, No. 1.18). In order to receive international recognition and resulting protection, an administration of a member state of the ITU should inform the ITU Radiocommunication Bureau about the general description of the satellite system containing, among other things, requested radio frequencies and the satellite orbit. Then, a coordination procedure is to be effected with other administrations and their national operators whose existing or planned satellite systems may be affected. Provided that the new satellite system is successfully coordinated and brought into use by an operational satellite by the regulatory deadline, the national frequency assignment to such satellite network will be recorded in the ITU Master International Frequency Register. Such entry provides the frequency assignment with the right to international recognition and international protection meaning that other operators shall take it into account when filling and using their own assignments in order to avoid harmful interference.
Therefore, every telecommunications satellite system is to be established and operated in accordance with the international legal regime of the radio-frequency spectrum and associated satellite orbits developed under the auspices of ITU, including, above all, the ITU Radio Regulations.
Satellite telecommunications, being the 60-year-old branch of space industry, is one of the most mature of all space applications. It is part of our daily lives which provides communications, radio and television broadcasts, Internet connectivity, and other data services to millions of users worldwide. Communications satellites are located far away from the Earth, hundreds and thousands of kilometers above our heads, and their operation is regulated by specific international rules mainly composed of international space law and the ITU regime. Both blocks of rules should be carefully complied with when satellite telecommunications systems are deployed and operated.
International space law consists of a handful of international treaties developed under the auspices of the United Nations and non-binding instruments generally drafted by COPUOS and adopted by UN General Assembly Resolutions. This regime applies to all space activities and there are no particular rules that would specifically address satellite telecommunications.
International telecommunications law is mainly developed within the ITU, a UN specialized agency. While international space law covers the use of space and the conduction of space activities, the ITU regime regulates the use of radio frequencies, which are employed by space activities, including satellite communications.
Satellite telecommunications is witnessing significant changes that affect the entire space industry. The number of spacefaring states and non-state actors is growing significantly, while more and more states are developing domestic satellite telecommunications systems. Satellites are getting smaller, lighter, and less expensive to manufacture and launch. Thus, outer space is becoming not only more accessible and affordable but also increasingly congested, contested, and competitive. Aside from that, there is an evident shift of interest from the conventional geostationary orbit to low and medium Earth orbits. Non-geostationary communications systems have lower latency in signal transmission, which is essential for modern satellite services, including autonomous driving, machine-to-machine communications, and the Internet of Things. However, in order to efficiently cover the surface of the Earth, non-geostationary systems require not a single satellite but a number of satellites, and the lower the orbit is the more satellites are required. A few newly proposed systems consist of hundreds and even thousands of satellites, while operations of such constellations seem to be a challenging task with a significantly increased risk related to satellites’ collisions and creating of space debris. Non-geostationary satellites are generally small and medium-size spacecraft with a shorter lifetime in orbit if compared with conventional geostationary satellites; this might also negatively affect the number of space debris and consequently the accessibility of outer space by new telecommunications systems.
The ITU regime has been able to constantly keep up with technology and market advances, as the regular World Radio Conferences ensure a rather rapid response and update. This is not the case for international space law, which has seen less significant evolution since the adoption of the space treaties. However, the latest technical advances and the increasing commercialization of space activities urgently require practical development of international rules, including above all an effective regime of space traffic management and space debris mitigation.
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