Revista Brasileira de
Direito Aeronáutico e Espacial

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Sylvia Ospina, JD, LL.M.*
S. Ospina & Associates - Consultants
International Telecommunications/Space Law.
Coral Gables, Florida

This paper is divided into two parts. The first one will present a general overview of existing international organizations that have helped shape space-related laws, policies, and regulations. The overview includes three perspectives: technical (the ITU); economic (WTO and private contractual agreements), and legal (UNCOPUOS). The second section will present a general overview of issues related to drafting national laws on space activities in Latin America.


The space age began with the launch of Sputnik in 1957, and since then, space activities have been increasing on a yearly basis. Space activities can be put into a few broad categories: the launch vehicle sector, which is needed by all who plan to launch any object to outer space. The scientific /research /space probes sector, whose goals and missions are frequently long-term, and funded by governments (e.g., missions to the Moon, the Mars mission, probes sent to Jupiter and Saturn, the International Space Station (ISS)). A third sector, and perhaps the most important or at least the one that has been the most lucrative of space activities, is the area of satellite communications, whether used for radio navigation, for voice telecommunications, or broadcasting (TV or radio). Nowadays, there are few, if any, countries that do not have access to at least one satellite system and that cannot communicate with the rest of the world.

Whereas at the beginning, these activities were dominated by two or three governments, nowadays, the private sector is playing a more important role in the development and operation of these major sectors. Further, with the "globalization" of economic activities, the private sector is also playing a greater role in developing governmental policies in many countries. Globalization also entails a blurring of national boundaries and diminishing influence of international organizations. They still play a fundamental role, as the first part of this paper will attempt to demonstrate.

I. Space Activities: International Aspects

Technical Issues: the ITU

Since the late 1950s, the International Telecommunication Union (ITU) Convention and Radio regulations have grown in importance in establishing norms for the use of the radio frequency spectrum (RFS) by space objects, whether satellites, launch vehicles, or scientific probes. More than 180 States are members of the ITU, and participate in the periodic World Radio Conferences, which amend the ITU’s Radio Regulations (ITU-RR).1 Most countries abide by the ITU-RR, to minimize harmful interference with their communication systems, whether space-based or terrestrial.

The ITU-RR are applicable to all space and terrestrial systems that utilize the radio frequency spectrum (RFS), such as microwave systems and communication satellites, radiodetermination, radio navigation systems, earth observation, or remote sensing satellite systems, space probes; all are subject to the ITU’s regulations.

The ITU Radio Regulations are applicable on an international, regional and national basis2 , and in many countries, they are the basis of national legislation and regulations dealing with satellite telecommunications. Most countries have at least one earth station with which to communicate with the rest of the world, and so they usually adhere to the ITU-RR. In some instances, the regulations on satellite communications may be the only ones that are related to space activities. Thus, it could be said that these nations have some space legislation, even though it is of a technical nature and limited to satellite communications.

Economic Policies and Space Activities

The main economic regulator of satellite communications used to be Art. XIV(d) of the 1973 Intelsat Operating Agreement, which required co-ordination with INTELSAT to minimize any "significant economic harm" to that organization.

Various events, however, have led to the virtual demise of economic co-ordination with Intelsat. For one, in the early 1990s Intelsat itself raised the threshold of what it deemed "significant economic harm". Further, in 1997 most countries adopted the World Trade Organization’s Annex on Telecommunications, making specific commitments to the economic liberalization of this sector.3 These commitments supersede some multi and bilateral agreements on international satellite communications services. Thus, the WTO Agreement has become an important economic regulator of space communications, even though it does not refer to issues such as satellites launches and use of the radio frequency spectrum.

At the beginning of the space era governments provided most of the funding, and were in control of satellite systems and operations. At present, the private sector plays a major role, due to the "privatization" of major international satellite organizations (ISOs), such as Intelsat, Inmarsat,4 and Eutelsat, and the "globalization" of corporations, operations and services.

The rise and demise of the non-geostationary satellite systems (e.g., Iridium, Globalstar, ICO Global Communications, inter alia), raise questions as to the growing importance of the private sector in the financing and provision of global telecom services. These systems all sought protection from the US Bankruptcy courts, and emerged as the "new" Iridium, the "new" Globalstar, owned and operated by financial consortia. The new ownership patterns also raise questions as to the private sector’s liability and responsibility in space activities, including financial interests in the RFS and licenses, as proposed in UNIDROIT’s draft Protocol on Space Assets.5

Several issues need to be addressed, both at the international and national levels. For example, should space activities be left in the hands of the private sector, whose major aim is monetary profit? Do governments, Signatories to the former INTELSAT, now the International Telecommunications Satellite Organization (ITSO) still have obligations to their citizens, to provide them basic public services, such as low-cost communications?6 According to INTELSAT’s amended documents, a core "governmental" component was retained in the "new" ITSO, which is tasked with supervising the implementation of the Public Service Agreement. One means of ensuring compliance with this obligation is a proposal to establish a "Global Broadband Satellite Infrastructure Initiative (GBSI)", as a means to bridge the "digital divide," in which ITSO Member States and the private sector would participate.7 Thus, while the public sector still plays a role in regulating satellite communications, its influence seems to be diminishing with every new deal that is concluded with major investment consortia.

Legal Concerns: the United Nations Treaties and Space Activities

Since its inception in 1958-59, the United Nation’s Committee on the Peaceful Uses of Outer Space (COPUOS) has been a key player in formulating treaties and resolutions in regard to outer space activities. The 1967 Outer Space Treaty8 remains a seminal document, providing a general framework for undertaking activities in outer space. That these activities are of great importance to an increasing number of countries is reflected in membership in COPUOS: when first established, it had 11 members; in 2004, 65 States are represented at COPUOS, and several others aspire to become members.

Further evidence that more countries believe that space activities need to be regulated is reflected in the growing number of States that have signed and ratified the Outer Space Treaty9 , the Liability Convention10 , and the Registration Convention.11 At the same time, several of these States are drafting national space laws, and establishing space agencies. Some of these endeavors will be looked at, infra.

The above sketch is intended to provide a general context of the international legal, technical, and economic aspects of space activities. In addition to the treaties, principles and resolutions drafted by COPUOS, many bilateral and multilateral treaties regulate other aspects of space activities. For example, intellectual property rights and patent laws that may apply to the International Space Station; copyright conventions that protect satellite broadcasting, whether of radio or television signals12 , inter alia. In brief, at the international level, there is a fair amount of legal protection of different facets of space activities, especially those undertaken by developed countries. One major drawback to international treaties, whether the WTO Agreements, or the UN treaties on outer space, is that there are few mechanisms to enforce them. Most of them state that any dispute arising from the treaty or convention is to be resolved by diplomatic means; i.e., through governmental negotiations, which can be lengthy. Even though some treaties provide for settlement by arbitration (e.g., the WTO Agreements), this too is a timeconsuming process, since it also involves governments willing to submit to arbitration on behalf of their nationals.

Regional space legislation

Currently there is no regional space law, although the European Union (EU) is beginning to formulate its own space policies. Both the EU and the European Space Agency (ESA) are unique, in that they are the only supranational, regional organizations of their kind. While most EU Member States have signed and ratified the UN treaties, not all have subscribed to the ESA Convention.13 Further, there are varying levels of national space legislation among the EU and ESA Member States. Harmonization of national space laws at the European Union level is an important means of providing a general legal framework for pan- European Union space activities. That there is a need for such legislation is evident in the growing number of workshops, conferences, and publications on this subject.14

On the one hand, the European Commission (EC) must take into account national legislation and space policies in its formulation of a pan-European space policy. On the other hand, national laws will have to take into account the EC’s policies. Until now, there are few space sectorspecific Directives or Decisions, except for those related to satellite communications. The EC’s "White Paper on Space Policy", issued in 2003, may fill this void.15 The EC White Paper covers a range of activities: R&D, infrastructure development, services and technology, and amongst its objectives are the allocation of roles and responsibilities for the Member States involved, and establishing annual budgets.

A European Space Policy would be implemented in two phases: the first (2004-2007) will consist of implementing the activities included in the recent European Community - ESA Framework Agreement16 on the joint ESA-EU GALILEO and GMES undertakings.17 The second phase (post 2007) would be carried out once the European Constitutional Treaty enters into force. This treaty would establish space as a shared competence between the Union and its Member States.18

Implementing many of the EC White Paper’s recommended actions and policies, while using space technology, should lead to "bridging the digital divide at a global level, [and ensuring] that all parts of the world can reap the benefits from the information society."19

One "regional" initiative, the Galileo GNSS is the kind of project that will lead to the growing international / global influence of the only regional space agency, ESA. What has begun as a "regional" undertaking, based in Europe, is developing into a global project, involving the major space powers and other countries as well. China, India, Russia and Ukraine, have signed agreements with ESA, and in the Americas, Brazil, Canada, Mexico, and the US also have signed agreements to participate in the Galileo Joint Undertaking (GJU). (The nature and scope of the agreements varies from country to country and will not be elaborated upon here).

II. Space Activities: National Aspects

This part of the paper will deal with national aspects of space activities in general terms. It will not offer a close analysis of any particular country’s legislation, but will make a few recommendations as to some issues that should be taken into account in drafting national space legislation. As in the preceding section, the technical, economic and legal aspects of space activities will be reviewed.

Technical Regulations

Most countries have earth stations to access communication satellite systems, and they adhere to the ITU-RR to minimize any harmful technical interference. Most countries also have national regulations related to the technical aspects of the Radio Frequncy Spectrum (RFS) utilization, and to satellite communications.

In the majority of developing countries, "space activities" are limited to satellite communications, which not only provide them access to the rest of the world, but also provide them foreign revenues. Most countries, even those with national satellite systems, are dependent on a few industrialized countries that manufacture hardware (spacecraft and launch vehicles) and other equipment, as most of them do not have native facilities for their production. (There are exceptions, such as Brazil, China, India, Israel, Korea, which have the capability of producing satellite components and launch vehicles).

Furthermore, with the exception of a few island countries or territories, the majority of nations have access to one or more fixed or mobile20 communication satellite systems.21 One of the goals of the Global Mobile Personal Communication Satellite Systems (GMPCS) was / is to provide global coverage by means of satellite "constellations". These systems have been less successful than anticipated, in part due to the high cost of the terminal equipment, and in some instances, due to regulatory hurdles, e.g., terminals not licensed could not be used in some States.22 Further, the growth of terrestrial mobile telephony systems, providing cheaper links and handsets, seems to have obviated the need for the GMPCS systems.

In the 1970s, many developing countries joined the "satellite club", and launched their own geostationary satellite systems. India and Indonesia were among the pioneers of national satellite systems. In the Americas, Argentina began studying the feasibility of a national / regional satellite system as early as 1969, while Brazil, Mexico, and the Andean Pact countries started feasibility studies on their systems in the 1970s. Brazil and Mexico launched their first-generation satellites in 1985, Argentina in the early 1990s, and the Andean Pact system is still under consideration. Venezuela, however, announced early in 2005 its intention of launching is own communications satellite, and has been negotiating with various satellite manufacturers.23

Several other "developing countries" now have their own satellite system(s), the majority of them for communications, although some satellites are for remotesensing / earth observation (R/S or E/O). All of them rely on the ITU’s co-ordination procedures and the ITU-RR, to ensure the proper operation of their system(s).24

It should be stressed that the satellite system operators are the ones who choose the frequencies to be used, as well as location of satellites in a particular orbit, or orbital positions. These choices are co-ordinated with other existing and planned systems, following the ITURR and ITU’s guidelines. These seemingly technical decisions and choices, which are often subject to the hardware suppliers’ national and international policies, have great impact on the economic viability of the system(s).

National Economic Policies and Space Activities Technical decisions, as noted above, affect the economic viability of any satellite system. Political and economic policies beyond the national level also influence these decisions. Having a national satellite system does not guarantee an adequate return on the investment, nor the best use of the satellite’s capacity. Thus, prior to launching a first satellite, or follow-on spacecraft, countries aspiring to join the "satellite club" should closely examine the economic aspects (e.g., the potential return on the investment) of their proposed system. While it may have been "fashionable" a decade ago to have a national satellite system, Argentina, Brazil, and Mexico have had to make alliances with foreign satellite systems in order to thrive economically.25

The importance of the economics of space-based communication systems, and of private investments in them, whether national or international, is reflected in the 1997 WTO Annex on telecommunications.26 While the majority of nations have made specific commitments to liberalize their telecom sector, few countries have national laws or regulations covering a wider range of space activities, despite their involvement in many of them.27

The situation is further complicated by the fact that all countries are increasingly interdependent on each other, due to the "globalization" of nearly all economic activities, of corporations, even of satellite systems. Developing countries are at a disadvantage, however, as they depend on industrialized countries, not only for equipment and hardware, but also look to them for technical standards, as well as for economic assistance to further their national developmental efforts.

Another difficulty is lack of adequate funding, which seems to be a perennial problem, not only for the incipient space agencies, like Brazil’s, but also for the US NASA, ESA, the Russians etc. Long-term planning (and funding) is needed for most space activities, but governments, which change every four or six years, seem to have shorter-term plans and goals. Thus, the budgets of most space agencies are subject to annual review, and perhaps to annual cuts. This lack of economic certainty is bound to affect the space programs of even the most economically solid agencies and countries.

The economic uncertainty also affects international and bilateral space projects, such as participation in the International Space Station, the Galileo JU, or rebuilding the Alcantara, Brazil, launch pad that was destroyed by an explosion in 2003.28 While in most countries the Ministry of Communications regulates satellite communications and use of the RFS, other space programs are shifted from one ministry to another. Some governments do not seem quite sure as to which official entity should be in charge of their space activities and so they create additional uncertainty. Thus, space activities may be the concern of the Ministry of Defense (e.g., in Chile the Air Force will be in charge of the Chilean Space Agency); or of the Ministry of Science and Technology (Brazil). In some instances, the ministry of Foreign Relations may be in charge,29 or they may be the purview of quasi-independent civilian agencies (e.g., the US NASA, the French CNES, among others). Funding for space activities may also be subject to budgetary largesse or constraints of the ministry overseeing them.

What should developing countries that aspire to have a native space agency and to expand their national space programs do, in view of a rather tenuous economic future? Should they rely only on government funding, or should this sensitive sector be opened to (private) foreign investors? These are economic as well as policy and legal issues, which need to be addressed by the respective authorities.

Should developing countries adopt the economic policies of the industrialized countries, that may be a condition for supplying them equipment? Should national legislation of space activities be based on laws drafted by and for industrialized countries? It should be recalled that, while national laws can be enforced only within a country’s borders.30 National policies do transcend geographic barriers. National policies and politics both play important roles and have great impact on space activities and initiatives of other countries.

Legal / Policy Aspects of Space Activities in the Americas

The United States is perhaps the country with the most highly developed space-related sector, as well as the country with the most legislation and regulations on a variety of space activities. A plethora of departments (ministries), agencies, and commissions, each with differing scope or reach, is involved in the implementation and regulation of space activities, beginning with the 1958 NASA Act that created the National Aeronautics and Space Administration (NASA).

Other influential entities include the Federal Communications Commission (FCC), which licenses and regulates communication satellite systems; the Dept. of State (DOS), the Dept. of Commerce (DOC), even the Treasury Department. The Federal Aviation Administration’s Office of Commercial Space (FAA /AST) licenses launch vehicles, while LANDSAT’s remote sensing activities are regulated by another agency. Various dependencies of the Dept. of Defense also play a major role in space activities (the US Air Force and Navy in particular).

The policies of each of these agencies, in turn, may limit the kind of technical and developmental aid that the US will make available to countries aspiring to develop space-related activities and centers. Other limitations, both in the US and in some other countries, are restrictions on foreign ownership and investment in certain sectors, such as telecommunication systems and airlines.

Most of the Latin American countries rely heavily on developed countries’ space industries and agencies, not only for hardware but also for technical assistance. Argentina, Brazil, Chile, Ecuador, Mexico are among the countries that have entered into several bilateral agreements with ESA, NASA, the Canadian Space Agency, the Indian Space Research Organisation (ISRO), as well with the Chinese and Japanese governments. These agreements vary in scope; in some instances, the Latin American countries assist the foreign space agencies with tracking activities (Chile’s Easter Island is a potential emergency landing site for the US Space Shuttles). Other countries (Argentina, Brazil and Chile) are involved with the French SPOT and the US LANDSAT remote sensing programs, as well as with the tracking of launches and satellites, and data collection.

Argentina, Brazil, and Mexico have national telecommunication satellite systems launched to further their national development. These spacecraft have very good coverage of most of the South American continent, yet this regional capacity is underutilized, for a variety of non-technical reasons. Further, there seems to be an abundance of unused transponder capacity on the "global" systems, some of which may be available at lower cost than the capacity on the national satellites.31

In brief, despite sharing a similar Spanish cultural heritage and language (except for Brazil), attempts at setting up regional co-operative programs in some sectors (telecommunications, air travel) have not been very successful in Latin America. Thus, setting up a regional space agency, similar to ESA, seems to be a remote possibility.32 Countries that already have some native space industries (and limited budgets) are likely to allocate more time and energy to their national endeavors.

National Space Agencies and/or Commissions in Latin America

In the 1970s and 80s, many countries joined the "space club" and launched national satellite systems. Currently, many countries seem to want to "upgrade" their membership in the "space club" by creating national space agencies.33 Several of the Latin American countries have commissions and /or centers for space studies and / or research, some recently formed, others dating back several years. Argentina and Brazil have the most developed space programs in Latin America, and some of their accomplishments are highlighted.


Argentina’s Comisión Nacional de Actividades Espaciales (CONAE) was created by National Decree No. 995/91, of 28 May 1991, although Argentina has been involved in space activities since before 1991. CONAE has co-operated in many programs with NASA and ESA, most of them of a scientific nature. Argentina has been quite involved in earth observation, has a small earth observation satellite in orbit, and plans to launch at least one more.34

CONAE’s space activities, however, have little to do with NAHUELSAT, the national telecom satellite system. One linkage exists, however: the Secretariat of Communications regulates the radio frequencies that are used by these spacecraft. Even though it has few national laws relating to space activities, Argentina has signed and ratified the major outer space treaties, and thus is bound by their terms.


Brazil’s involvement in space activities dates back to 1961, when the Brazilian government established an Organizing Group for the National Commission on Space Activities (GOCNAE), to promote Brazil’s space activities.35 The GOCNAE evolved over the years, leading to the establishment of the Brazilian Space Agency (AEB).

Brazil, like Argentina, has a domestic satellite system, whose operations and regulation have little relation to the Brazilian Space Agency’s activities or to those of the Institute of Space Research (INPE), except for the ITU regulations related to using the RFS.

Brazil, like Argentina, also has entered into many bilateral agreements with NASA, ESA, the Chinese Space Agency, and with the Ukrainian government. The agreement with the Chinese centers on remote-sensing / data collecting satellites, while the agreement with the Ukrainians is aimed at improving Brazil’s launch capabilities at Alcantara, with plans to eventually compete with other countries’ launch systems.36 (Brazil’s launch sites are in an excellent geographic position to compete with the French /ESA launch center in Kourou, French Guyana, as all them are very near to the Equator).

Brazil’s plans to offer commercial launches suffered a serious setback in August 2003, when a rocket exploded on the launch pad at Alcantara, destroying it, and killing more than 20 persons. Despite this setback, the Brazilian Space Agency plans to revitalize its mission, and go forward with its space programs. Adequate funding for these may be problematic, however.37


Chile has been providing NASA and ESA technical support for many years, and some of its desert areas have been used as testing grounds for NASA experiments (e.g., landing on the Moon). Chile has also been quite involved in remote-sensing activities, and has two university-based centers in Santiago for space studies and/or research, and to track data obtained from the US Landsat and the French SPOT satellites. It also launched a small earth observation satellite a few years ago. In addition, Chile was the host country for the second Pan-American Space Conference, convened in 1993.

Despite its years of involvement in space activities, the Chilean government remains in the process of drafting its space legislation. At the 4th Pan-American Space Conference, held in Colombia in 2002, Chile announced that it would be establishing a space agency, and presumably, drafting some space-related legislation. In the meantime, it has launched a small earth observation satellite, and plans to launch a second one.

Other Latin American Countries

Several other countries in Latin America are involved in space activities, but do not have a national space agency as such. A few countries however have had astronauts in space. A Cuban cosmonaut spent some time on board a Soviet spacecraft; Costa Rica’s Franklin Chang Díaz became a US citizen, so that he could accomplish one of his dreams, to be an astronaut. A Mexican astronaut "accompanied" the launch from the Space Shuttle of the first Mexican satellite, the Morelos, in 1985.

In Colombia, Mexico, and Peru, the Ministry of Foreign or External Relations is in charge of space activities, except for satellite communications; these are the purview of the Ministry of Communications. Uruguay has a research center, Centro de Investigación y Difusión Aeronáutico – Espacial (CIDA-E), and publishes a journal with articles on both air and space law. Peru would like to revive its Space Research Center, but has not funds to do so. A university in Venezuela has a center dealing with some space activities. Recently, the Venezuelan government announced its intention to establish a Commission on the Peaceful Use of Outer Space, under the aegis of the country’s President.38

All of the countries in Latin America, however, have several earth stations, accessing a variety of communication satellites, whether in geostationary orbit, or in lower orbits. For example, Colombia and Peru agreed several years ago to have "gateway" earth stations, connecting to Globalstar, one of the GMPCS systems. 39 Iridium also had plans to install gateways in several countries, but not all of the plans to have regional gateways materialized.

Conclusions and Recommendations

With the exception of Brazil and Argentina, few countries in Latin America have active space commissions or agencies, let alone laws or regulations related to space activities, other than those issued by the entity in charge of satellite communications. The latter are usually based on the ITU’s Radio Regulations and Recommendations, and thus, limited to mostly technical issues related to satellite communications and use of the RFS by other types of satellites.

Funding for the development and expansion of most sectors is limited, due to budgetary constraints and government priorities; funds for expensive space programs are not always first on the list. For example, even though Brazil wants to continue participating in the International Space Station program, it may have to cut back, because of inadequate funding.40

Developing countries with no space industry or programs face special challenges: do they need legislation for a sector that has yet to develop in their country? Should they decide that they need national space laws, they should keep in mind the principles embedded in the main outer space treaties, as well as any regional legislation.41 If a country decides to draft some legislation, based on the law of another State, it should also take into consideration differences in legal systems (common law, civil law). Terms such as "liability", "responsibility", "assets", "property" have different meanings under these two different legal régimes.42 On the one hand, should they remain open to the possibility of establishing joint ventures with foreign space agencies and corporations, as Brazil is doing with the Ukraine and the Chinese? Or, on the other hand, should they enter into arrangements whereby their sense of national sovereignty may be compromised?

One implication of the term "globalization" is the blurring of State boundaries; differences between Nation States tend to disappear, and with them, deference to State sovereignty is likely to diminish. The ever-growing use of the INTERNET and other global telecommunications networks allow for communications across time and space in an unprecedented manner, resulting in the disappearance of borders, at least in "cyberspace".

Countries that try to resist the trend toward globalization may be fighting a losing battle, as their national priorities become less important vis à vis this trend. For example, in the 1970s many States sought to have greater control over the reception of satellite-transmitted television, and succeeded in passing a Resolution at the UN’s General Assembly, essentially requiring their consent prior to downlinking the TV programs.43 Today, this is a moot point, in part due to technological advances, in part due to prior consent not being sought by the global BSS / DBS operators. Another practice that moots this issue is the "pirating" of TV programs, and music. This is a major "industry" in some countries, resulting in economic losses in the millions of dollars, or so producers of films and TV programs allege. Copyright holders, however, obtain some compensation from the agencies in charge of administering the royalties under the different copyright conventions. (The principal ones appear on the "Status of Treaty chart, appended).

Some countries would do well to analyze some of their own laws and policies, which may impede the development of a national space sector or their participating in a regional space program. For instance, the Colombian and Ecuadorian Constitutions state that their national sovereignty extends to parts of the geostationary orbit. Since Colombia has not ratified the three principal space treaties, it is not bound by their terms. Ecuador and Peru, however, have signed and/or ratified them. Thus, it may be difficult to reconcile their position with other countries in the region44 , and with the 1967 Outer Space Treaty, which 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."45


Having national space legislation and perhaps a national space commission or agency to draft and enforce regulations might be a noble ideal for some countries, but an unrealistic goal for others. It is submitted that, prior to drafting national space laws, let alone creating a national space agency, a few preliminary measures should be taken.

The first step would be to ensure that the State signs and ratifies the space treaties, thereby giving notice to the world (and space) community that it is committed to upholding the principles embodied in them. A second measure that should be taken is to study and analyze the need for such legislation, as well as analyze other current national laws, to avoid conflicts and discrepancies at the national level. Then, should a national law be drafted, the State would be in a better position to ensure that there are no discrepancies between provisions in its national laws and the international treaties related to space activities (the WTO Agreements on Telecoms, the ITU-RR, and of course, the UN treaties).

Issues of liability and responsibility, as well as mechanisms for indemnifying an injured Party should be closely analyzed, to ensure that measures that are being proposed would not be in conflict with other national laws and regulations.46 Perhaps the insurance sector should be consulted in this regard.

Countries that already have satellites in orbit, but which have not signed or ratified the Registration Convention,47 should do so, and also establish a national Register of their space objects, as required by Article II of this Convention. Having a national register of space objects launched, perhaps of other space activities, may be helpful in securing additional funding from their government; at least the government would know where some of its funds are being expended.

In this regard, two other recommendations will be offered. Firstly, the government should be aware that any space agency, commission, or program that is envisioned will require adequate funding, and should ensure that those monies are available ab initio. These funds should be budgeted for a few years, so that initial or start-up operations can be sustained, without the fear of lacking funds in the near future.

Secondly, it is recommended that, prior to setting up a national space agency or center, a thorough survey should be carried out of the different entities - governmental agencies, non-profit organizations and private entities - that may be using satellite capacity, as well as data or images obtained from satellites. In some countries, the government itself has no idea how much its various dependencies are paying for satellite images and, in some instances, paying more than once for the same data. Duplication of expenditures (and efforts) could thus be avoided, and those funds used to further other space activities, or training therein.

Once an in-depth survey is carried out, and the results properly analyzed, the government would be in a better position to know where it is expending funds, and to determine which entity should be responsible for managing and co-ordinating spacerelated activities. An argument against undertaking this kind of initial survey could be based on lack of trained personnel, and lack of funds for such endeavors. A counter-argument is that in most countries there are institutions (public and private) that specialize in carrying out surveys, and which could undertake one related to space activities.

As to the argument that there are no funds for this basic research, perhaps the government should reconsider whether it "needs" a national space agency or center. If there are no monies for such a fundamental task, it is questionable whether monies will be available for something on a bigger scale, let alone long-term funding for a national space agency or commission.

Prior to creating a space agency or drafting legislation, perhaps the developing countries interested in doing an initial survey of their country’s use of satellite-transmitted data or images, could request assistance from the United Nations’ Office for Outer Space Affairs (OOSA), and/or from members of the International Iinstitute of Space Law (IISL), to assist them in these initial drafting activities. These could result in long-term, and sustainable, national space-related endeavors.

Status of Selected Treaties

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1 The ITU Constitution and Convention are revised at the Plenipotentiary Conferences.

2 The ITU RR, Art. S1 (S1.16 - S1.18) provides specific terminology and definitions: allocation (of a frequency band) is done on an international basis; allotment of a radio frequency or radio frequency channel, for use by one or more Administrations in one or more identified countries or geographical areas and under specified conditions. [I.e., allotment is regional]. Assignment (of a radio frequency or radio frequency channel) is the authorization given by an Administration [i.e., national government] for a radio station to use a radio frequency or by an Administration for a radio station to use a radio frequency or radio frequency channel under specified conditions. [Italics in the original.]

3 The WTO Agreement aims at opening the telecom markets, creating a "level playing field". WTO commitments are averse to granting "exclusive" rights to any one corporation or service provider. These policies weaken the monopolies that many government- owned service providers and operators used to enjoy. Further, some countries, notably the USA, filed exemptions to the WTO Annex on Telecommunications, so that satellite transmitted TV is not subject to the WTO Agreement. See for a list of the commitments and exemptions.

4 INMARSAT was privatized in 2000, and INTELSAT in 2001, under terms set forth in the US’ Public Law 106-180, 17 March 2000, the "Open-market Reorganization for the Betterment of International Telecommunications Act, the ORBIT Act". [Cited hereinafter as the ORBIT Act]. The ORBIT Act essentially did away with the Intelsat 1973 Agreements, including Art. XIV(d), and has led to the restructuring of the international satellite organizations (ISOs) into competitive, privately owned corporations. Under the terms of this Act, Inmarsat and Intelsat were required to issue an Initial Public Offering (IPO) of their shares, but a recent amendment to the ORBIT Act has obviated this requirement.

5 Draft Protocol to the UNIDROIT Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets. Capetown, 2001. UNIDROIT’s Space Protocol and its definitions of "space assets" are of concern to the "spacialists". See, for the text of the Draft Convention on Mobile Equipment and various Protocols. [Cited hereafter as the Space Protocol.]

6 The recent "auction" of Intelsat to Zeus Holdings, a consortium of private investors, is a case in point: according to the Agreement, which was amended in 2001, the "new" International Telecommunication by Satellite Organization (ITSO), is still obliged to ensure the provision of universal services via satellite.

7 ITSO Press Release No. 2005-102 (January 2005). This is one of several press releases on the Global Satellite Broadband Infrastructure Initiative, or GBSI, proposed in 2003 by ITSO, an agenda item of the World Summit on the Information Society, to be convened in Tunisia in November 2005. It will be interesting to see if the GBSI Initiative materializes.

8 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer space, including the Moon and Other Celestial Bodies. Entered into force 10 October 1967. [Cited as the Outer Space Treaty hereinafter.]

9 Ibid.

10 Convention on International Liability for Damage Caused by Space Objects. Entered into force 1 Sept. 1972. [Cited as the Liability Convention hereinafter.]

11 Convention on Registration of Objects Launched into Outer Space. Entered into force 15 Sept. 1976. [Cited as the Registration Convention hereinafter.] These three treaties are the most important, whereas the Agreement on the Rescue of Astronauts is perhaps slightly dated. The Moon Treaty, while in force since 1985, has yet to be signed and ratified by major space powers.

12 UNGA Report of the Special Political Committee (A/37/646), 100th Plenary Meeting, 10 Dec. 1982. See also the 1984 Brussels Convention on satellite broadcasting. (Issues related to TV broadcasts, copyright, intellectual property rights and patents could be the subject of other articles, and will not be elaborated upon in this paper.)

13 It should be recalled that not all EU Member States participate in ESA activities, while some non-EU States (e.g., Canada) collaborate in ESA projects.

14 See Project 2001 and Project 2001 Plus, "Global and European Challenges for Air and Space Law at the Edge of the 21st Century." Inst. of Air and Space Law, Univ. of Cologne; Dr. Stephan Hobe, Bernhard Schmitt-Tedd, Kai-Uwe Schrogl, editors. The Proceedings of the workshops convened by Project 2001+ include papers on various aspects of harmonizing national laws in EU Member States. See "Towards a Harmonised Approach for National Space Legislation in Europe." Proceedings of the Workshop, Berlin, Germany, 29/30 January 2004. [Cited as the Berlin Proceedings hereinafter.]

15 The EC White Paper on European Space Policy was presented by the Commission, and was formally adopted in the EU Council of Ministers meeting on Competitiveness on 27 November 2003. EC Publication COM (2003) 673 (2003). [Cited hereinafter as the EC White Paper.] For the complete text, see space/

16 This Framework Agreement entered into force on 28 May 2004.

17 EC White paper. GALILEO is Europe’s global radionavigation satellite system (GNSS), a joint EU/ESA project comprised of a constellation of 30 satellites in medium Earth orbit. GALILEO will provide users with highly accurate timing and positioning services. GMES (Global Monitoring for the Environment and Security) is also a joint EU/ESA initiative combining space and in-situ observing systems to support EU’s goals regarding sustainable development and global governance.

18 Ibid., p.49.

19 Ibid., p.18. (Quote taken out of its context by this author).

20 The ITU-RR, Ch. S1, Art. S1 provides definitions of various satellite services: Fixed (FSS): point-to -point transmission service (telephony); Broadcast (BSS /DBS): point-to multi point transmissions (Radio, TV broadcasting); Mobile (MSS) include maritime mobile, aeronautical mobile, land mobile services.

21 Intelsat, Inmarsat, Panamsat, SES-Astra (now SES-Global and/or SES-Americom) are among some of the geostationary satellite systems with nearly global coverage.

22 The reasons for the rise and causes of the demise of the GMPCS systems, are beyond the scope of this paper.

23 The Venezuelan newspaper, "El Universal", 31 Dec. 2004, stated that Venezuela also intends to establish a Commission on Outer Space activities, under the supervision of the country’s president.

24 Algeria, Argentina, Brazil, Chile China, Egypt, Greece, India, Korea, Malaysia, Mexico, Nigeria, Saudi Arabia, Thailand, Turkey, and the UAR are among the countries "members of the satellite club", having launched their own spacecraft, either for telecoms or remote sensing.

25 Space News and Satellite Today have reported that Mexico’s SATMEX recently filed for bankruptcy protection in Mexico, while its foreign creditors would like to bring these proceedings under a US court jurisdiction.

26 See note 3, for the specific commitments and exemptions taken by each country to the Annex on Telecommunications.

27 The UN’s Office of Outer Space Affairs (OOSA) has a listing of national space legislation; when compared with nations that are involved in space endeavors, or that have national satellite systems, it becomes obvious that not all of them have laws related to space activities. Also see Berlin Proceedings, note 13.

28 Space News, 20 Sept. 2004, p.22, interview with the President of the Brazilian Space Agency. He attributes the explosion to lack of adequate funding, in addition to technical problems that may have been the cause.

29 The Colombian Ministry of Foreign Relations is the seat of the Pro-Tempore Secretariat of the IV Pan-American Space Conference, held in Colombia in 2002.

30 Exceptions exist, such as the US "ORBIT Act", supra, note 4, which essentially did away with treaty-based international satellite organizations (Intelsat, Inmarsat), compelling them to "privatize."

31 Via Satellite, May 2005, pp.24, 26, provides charts on "current GEO [geostationary satellites] fill rates": in the Americas 73% of available Ku-Band transponders are active, whereas in Europe, 67% are active. In Africa/Middle East, 58% are active, and in Asia, 56% of the Ku-Band transponders are being used. As to C-Band transponders, in the Americas, the "fill rate" is 62%; in Europe, 38%; in Africa/ME, 50%, and in Asia, 50%. In brief, there are about 2500 unused transponders: 1300 in C-band and 1200 in Ku-band).

32 Four Pan-American Space Conferences have been convened, the first one in March 1990 in Costa Rica, and the fourth in 2002, in Colombia. One of their purposes has been to study the feasibility of establishing a regional space agency, but few funds or personnel have been allocated to these efforts.

33 Space agencies’ importance is growing so much that it has become the topic of some symposia. Euroconsult (Paris, France), held a "World Space Agencies Forum" on 10 Sept. 2004, to which more than 26 national space agencies / commissions were invited. It had convened a similar symposium /forum in previous years.

34 See, for an extensive description of Argentina’s space activities and long-term plans.

35 J. Monserrat Filho, "Brazilian Launch Licensing Regime." Presentation included in the documents of the UN-sponsored Workshop on Capacity Building, The Hague, NL, November 2002. (Complete text may be found at

36 Ibid.

37 Space News, 20 Sept. 2004, p.22, interview with the President of the Brazilian Space Agency.

38 El Universal (Venezuela), 30 Dec. 2004.

39 GMPCS is the acronym given to the Global Mobile Personal Communication Systems, which comprise satellites in geostationary orbit and several non-geostationary orbits. Many of the GMPCS systems that were proposed in the early 1990s were not launched (Skybridge, Celestri), have either merged with others (ICOTeledesic), or have been reorganized under Chapter 11 of the US Bankruptcy Code (Iridium, Globalstar, ORBCOMM). Recently, Globalstar acquired the earth station its partner, TESAM, had installed in Venezuela.

40 Space News, 20 Sept. 2004, p.22, interview with the President of the Brazilian Space Agency.

41 See Berlin Proceedings, note 14.

42 E.g., the definitions of "space property" (now "space assets") included in the Space Protocol, note 5, have been the subject of much discussion, due to the different import of these terms in the common and civil law systems. In regard to differences in terminology, see S. Ospina, "International Responsibility and State Liability In an Age of Globalization and Privatization." Annals of Air and Space Law, Vol. XXVII, 2002, pp. 479 - 493. See also Berlin Proceedings, note 13.

43 UNGA Report, note 12.

44 These claims to sovereignty, and the fact that the 5 member countries of the Andean Pact (Bolivia, Colombia, Ecuador, Perú and Venezuela) have not ratified the same treaties have impeded the progress of their regional satellite project, the "Simón Bolivar", formerly "Project Condor". Some issues that were raised thirty years ago, when the regional satellite project was first proposed, still have not been resolved. This author has written numerous articles on Project Condor.

45 Art. II, Outer Space Treaty, note 8. The Equatorial countries’ claims to sovereignty over segments of the geostationary orbit have been debated at the UNCOPUOS for years, and have been the subject of numerous writings.

46 See note 42, S. Ospina, "International Responsibility and State Liability in an Age of Globalization and Privatization."

47 Registration Convention, note 11. See Status of Selected Treaties Table, appended to text of this paper.


Copyright 2005 Sylvia Ospina. The author may be contacted at:

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