NATIONAL SPACE ACTIVITIES AND
LEGISLATION IN LATIN AMERICA ©
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.
Introduction
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
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
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
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
Recommendations
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
[Click here to open]
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Notes
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
www.wto.org 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 www.unidroit.org, 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 http://europa.eu.int/comm/
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, www.wto.org 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 www.conae.gov.ar, 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 www.oosa.unvienna.org).
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.
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Copyright 2005 Sylvia Ospina. The author may be contacted at:
sospina@bellsouth.net
