facts and issues concerning the geostationary orbit (a

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Facts and issues concerning the geostationaryorbit (a legal view)

Priyatna Abdurrasyid

1984

Abdurrasyid, P. (1984). Facts and issues concerning the geostationary orbit (a legal view). InAMIC‑Department of Information‑ISKI Seminar on Satellite Technology : theCommunication Equaliser, Solo, Nov 25‑30, 1984. Singapore: Asian Mass CommunicationResearch & Information Centre.

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Facts And Issues Concerning The Geostationary Orbit (A Legal View)

By

Priyatna Abdurrasyid

Paper No.ll

ATTENTION: The Singapore Copyright Act applies to the use of this document. Nanyang Technological University Library

FACTS AND ISSUES CONCERNING

THE GEOSTATIONARY ORBIT

( A LEGAL VIEW )

by

Priyatna Abdurrasyid *

Article 10, 3c of the ITU Convention of 1973

(Malaga - Torremolinos) stated that the essential

duties of the International Frequency Registration

Board shall be to furnish advice to members with

a view to the operation of the maximum practicable

number of radio channels in those portions of the

spectrum where harmful interference may occur,

and with a view to the equitable, effective and

economical use of the geostationary orbit.y And

article 33,2 of this Convention said further that

in using frequency bands for space radio services

members shall bear in mind that radio frequencies

and the geostationary satellite orbit are limited

natural resources, that they must be used effi

ciently and economically so that countries or

group of countries may have equitable access to

*^Prof. of Air and Space Law, Member IISL, IAA. The views expressed in this presentation are those of the writer and do not necessarily reflect the views of Indonesia or any other institutions. -»_


both in conformity with the provisions of the

radio regulations according to their needs and 2) the technical facilities at their disposal.

But at the Plenipotentiary Conference held

in Nairobi, 1982, these very articles were am-

mended and in article 10, 3c (MOD 67) it could

be read that the essential duties of the Inter

national Frequency Registration Board shall be

(among others) to furnish advice to members

with a view to the operation of the maximum

practicable number of radio channels in those

portions of the spectrum where harmful inter

ference may occur, and with a view to the equitable

effective and economical use of the geostationary

satellite orbit, taking into account the needs

of members requiring assistance, the specific

needs of developing countries as well as the

special geographical situation of particular 3) countries.

Aforementioned articles fully confirmed the

existence of the geostationary orbit, which the

ITU described as a circular orbit at a distance

of approximately 22.300 miles (35.800 km) above

the Earth's equator. A satellite placed in this

orbit (geosat) lies in the plane of the equator

and turns about the polar axis of the Earth in

the same direction and within the same period 4)

as the Earth it self. .

Thus a geosat appears stationary in relation

to the underlying point.

2


Popularly speaking, a satellite moving round

the Earth in a period the same as that of the

Earth's rotation period, above the equator, will

seem to remain "stationary" in the sky, and is

ideally suited to be a television and radio relay.

Next, the geostationary orbit has also possible

uses for satellite communication, meteorology,

earth resources and environment, navigation and

aircraft control, testing of system, astronomy,

tracking and data relay, solar power and other

possible uses in the near future. '

What is the actual background of the amraend-

ments of especially the articles 10, 3c and 33,2

of the ITU Convention 1973 dealing with the geo

stationary orbit, laid down in the very article

10,3c (Mod. 67).

Two things must be analysed, as follows

I. The air sovereignty concept

II. The application of the Space Treaty

1967.

I. The Air Sovereignty Concept.

In ancient times Roman Law recognized

the exclusive rights of the landowner.

We find the basis for this practice in the

maxim : "Cujus est solum, ejus est esque ad

coelum."It means that "he who owns the

soil, owns up to the heavens and down to

• the depths of the earth." These rules were

contained in the CORPUS JURIS CIVILIS,7)

which in many of its laws used the words"

3


aer res communis". The influence of this

maxim is still to be seen in various laws

of several countries, for instance in the

Civil Code of Indonesia, article 571.

To understand the development and in

fluence of this maxim in the field of Law

in particular the law of the air and the

law of space (or Air and Space Law), we have

to look into its history which is divided

into four periods, viz.:

1. The International Conference on Air

Navigation of Paris 1910.

2. The Versailles Peace Conference in 1919.

3. The International Commission for Aerial

Navigation - ICAN - Paris 1929.

4. The Air Sovereignty Concept after the

Chicago Convention of 1944.

1. The International Conference on Air

Navigation of Paris in 1910.

We find in this period two schools

of thought, viz.: ;

a. That which maintains that airspace

is by its very nature free (the Air

Freedom theory).

b. That which maintains the theory of

the sovereignty of the subjacent

state over the airspace above its

territory (the Air Sovereignty

theory).

4


The first school may be divided

into :

1) Air freedom without restriction.

2) Air freedom restricted by some

special rights of the subjacent

state.

3). Air freedom restricted by a

territorial zone.

The second school may be divided

into :

. 1) Full sovereignty up to a limited

height.

2) Full sovereignty restricted by

the right of innocent passage

for aerial navigation.

3) Full sovereignty without res

trictions (up to the sky - ad

infinitum).

2. The Versailles Peace Conference.

For the first time in the history

of flight a sovereignty concept was

put firmly into an international con

vention, namely the Paris Convention

of 1919. The convention says that

a state has complete and exclusive

sovereignty over the airspace above

its territory. This sovereignty,

however, is limited by the right of

innocent passage by foreign aircraft.

5


. International Commission of Aerial

Navigation - ICAN - PARIS 1929.

The Paris Convention of 1919 was

concluded in the spirit and domination

of the Treaty of Versailles of 1919.

This appears very clearly in the ori

ginal wording of article 5 which

prescribes that no contracting State

should admit, except by special and

temporary authorization, the flight.

above its territory by aircraft not

possessing the nationality of the

contracting States. Another discri

mination was that according to article

34 of the Paris Convention, two votes

each were given in the ICAN to the

USA, Great Britain, France and Japan,

whereas the other members were given

one vote each. Therefore many States

did not adhere to or become members of

this convention. They were unanimous

on one issue, that each State has

complete and exclusive sovereignty

over the airspace above its territory.

However, relevant to this air sovereignty

concept was the presence of two opposing

groups of opinion. One group, led by

Great Britain, maintained that air

sovereignty was limited by the principle

of innocent passage, so that an inter

national air service passing through

the airspace of another country did not

6


need any permission from the country

flown over. Another group maintained

that an authorization had to. be granted.

This question of prior permission was

later discussed at the air conference

of 1929, and it was at the conference

that the principle of freedom of air

traffic, at least for regular services,

was completely abandoned by a great

majority of States. In addition to

this, amendments were made to the old

Paris Convention of 1919, especially

to articles 3, 5, 15 and 34.

4. The Air Sovereignty Concept after the

Chicago Convention of 1944.

This air sovereignty concept is

firmly established after the Chicago

Convention of 1944. Article 1 of this

convention says that the Contracting

States recognizes that every State has

complete and exclusive sovereignty in

the airspace above its territory.

Eagerness was shown by States to -

specify that they have complete and

exclusive sovereignty in the airspace,

and this in the following sence :

a. States acknowledge the doctrine

of national sovereignty in air

space as a binding rule of inter

national law. Implicitly they

express their willingness to respect

the boundaries of foreign airspace.

• * * . ' . •

7


b. The word "complete" and "exclusive"

stress the comprehensive character

of the national sovereignty in the

air. The word "complete" may be

associated with the quantity, the

word "exclusive" with the quality of

the sovereign rights in question.

II. The application of the Space Treaty of 1967.

By its resolution of December 13, 1958

the UNGA^raised the question of how to keep

the new arena of outer space (that is that

part excluding airspace) for exclusively

peaceful purposes, and created an ad hoc

Committee, who were to study the various

aspects, technical, legal and others,

brought into existence by the advent of

satellites. Much of the discussion in the

Legal Sub-Committee concerned the identi

fication of legal problems which came within

its jurisdiction. There was general agree

ment that its was not possible to identify

all of the legal problems regarding the

peaceful uses of outer space, but that

certain principles for the peaceful uses

could be established and these are '

1. The exploration and use of outer space

shall be carried on for the benefit and

in the interests of all mankind.

2. Outer space and celestial bodies are

free for exploration and use by all states

i 8


on a basis of equality and in accordance

with international law.

Outer space and celestial bodies are not

subject to national appropriation.

The activities of states in the exploration

and use of outer space shall be carried

on in accordance with international law,

including the Charter of the United

Nations.

States bear international responsibility

for national activities in outer space,'

this responsibility to be borne by the

states alone, or by the international

organizations and by the states partici

pating in them; it is also set forth

that national activities shall require

continuing supervision by the state

concerned.

In the exploration and use of outer

space, states shall be guided by certain

principles of responsibility, as well

as request consultation between interested

parties.

The state on whose registry an object

launched into outer space is carried

shall retain jurisdiction and control

over such object and its component

parts.

Each state which launches or procures

the launching of an object into outer

space, is internationally liable for

damage to "a foreign state by such

object or its component parts on the

9


earth, in air space, or in outer space.

9. States shall regard astronauts as envoys

of mankind in outer space, and shall

render to them all possible assistance;

the principle of the return of astronauts

and their space vehicles to the state of

registry is also laid down.

After looking at the title of the Space

Treaty of 1967, from the beginning, it has

been limited to principles. In fact, it was

designed to define certain general norms of

behaviour by states when they undertake the

exploration, use, or exploration and use at

one and the same time, of outer space, in

cluding the moon an other celestial bodies.

It could be hoped that the rather vague

principles of United Nations Resolution

no. 1962 (XVIII) of December 13, 1963, as

well as its terms, would be clearly specified

and defined, so that they could represent

the legal basis,, the very framework, on

which the codification of space Law could

later be founded. The Space Treaty does,

not represent and advance as to its content,

The only advantage that can be attributed

to it would be that of legal form, that is,

of having reiterated certain generalities,

within the limits of a multilateral conven

tion, as can be seen in the creations of

other specific (sui generis) treaties, such

as

10


- Rescue Agreement, 1968

- Liability Convention, 1973

- Registration Convention, 1976

- Moon Treaty, 1979.

Within these context, note article II

of this Treaty, which says that outer space,

including the moon and other celestial

bodies, is not subject to national appro

priation by claim of sovereignty, by

means of use or occupation, or by any other 12)

means. The non-appropriation principle,

incorporated'. in Article II and relating

to the bah on national appropriation of

outer space, raises the all important

question whether the placing and keeping

of a satellite in geostationary orbit

could amount to an appropriation of orbital

space. Contrary to the applicability of

the principle of freedom of exploration

and use, it would appear that the "placing"

of a satellite in geostationary orbit would,

de facto, constitute such appropriation.

Because, from the beginings of the space

age, the principle "first come, first served"

was followed. The Outer Space Treaty did

not place.a limitation on this principle

with respect to free space, and state

practice to date appears to have confirmed 13)

it;as correctly observed by Prof Cocca

from Argentina, "though everybody has a

right to place a space object in orbit, the

second in time is to respect the route chosen

11


by the first".

Development of the way the whole exploration and

uses of outer space are conducted has invited strong

reaction from developing countries, and in par

ticular from the equatorial countries, (through

the Bogota Declaration 197 6) who maintained,

among others, that

- the geostationary orbit is a physical fact

arising from the nature of our planet

because it depends exclusively on its

relation to gravitational phenomena caused

by the Earth;

- it is a limited natural resource;

- there is no satisfactory definition of

outer space;

- the Outer Space Treaty of 1967 as such can

not be the "final answer".

To the preceding considerations certain addi

tional points were added in the course of sub

sequent UN discussions in 1977 and 1978. Some of

them were .

- the prevailing uncertainty on the matter

of outer space is illustrated by the

variety of criteria suggested for its

definition;

- there is no right of succession in regard

to satellites, therefore Resolution of WARC

no.4/1979 is contradictionary.

12


In fact, the real purpose of the Bogota De

claration seems to be expressing the Equatorial

Countries' worry while applying a political

statement on a few developed countries that are

monopolizing the geostationary orbit, and con

sequently restraining the use of the orbit by

latecomer - developing countries. This intention

is clear from the Bogota Declaration which pro

vided that developing countries do not have

equal technological and financial resources as

compared to industrialized countries, who enjoy

an apparent monopoly in the exploitation and use

of the geostationary orbit.

As has been confirmed by the United Nations

Committee on the Peaceful uses of Outer Space

(UNCOPUOS) the geostationary orbit offers great

opportunities for developing different kinds of

space activities (including military), particu

larly in the field of telecommunication.

However, its utilization is subject to certain

constraints of physical and technological nature.

The need for ensuring the most effective economics

in using this orbit in the interest of all coun

tries has become a generally recognized aim. The

question of the legal status of the geostationary

orbit has come under intensive scrunity by the

international community. Above all, recent and

rapidly increasing use of the geostationary orbit

by a few countries has aroused a controversy

with respect to the right of access. There have

been calls for the establishment of a special

detailed legal regime (sui generis regime)

13


.

to govern the use of this orbit. Recent years

have witnessed an explosive growth in the use

of the geostationary orbit, particularly in the

field of telecommunication, and this why some

countries fear of saturating the geostationary

orbit and the frequency bands that can be used

for communications between the geostationary

satellites and ground stations or between the

geostationary satellites themselves. This ' con

cerned was signalized on several occasions, e.g

at the second United Nations Conference on the

Exploration and Peaceful uses of Outer Space

(UNISPACE 8 2 ) . Paragraph 280 of its Reports

stated that ".... while GSO is occupied largely

by developed countries' Satellites and inter

national systems ...., there are countries

which have not yet placed sattelites in GSO;

and increasing concerns have been expressed that

these'positions may not be available when they

desire to use them, and that assignments in

certain frequency bands (e.g., 4 or 6 GH2) may

become more difficult to obtain in future due

.,17) to congestion.

The number of satellites occupying slots in

the geostationary orbit started with the first

geostationary satellite, succesfully launched

already in July 1963, and afterwards tens of

such satellites were place in the geostationary

orbit. Many geostationary satellites become in

active and some of them were removed from this

orbit.

14


According to the latest addendum, to the study

prepared by the United Nations Secretariat on

the Physical Nature and Technical Attributes of 18)

the Geostationary Orbit, the total number of

all tracked space objects in the geostationary

orbit up to December 1982 is 243. The list of

space objects in the geostationary orbit pu

blished by the aforementioned UN Study indicates

that the number of countries actually using the

geostationary orbit remains relatively limited

and mostly includes some of the highly techno

logical countries. Therefore the developing

countries, particilarly the Equatorial Countries

reitirated that should the geostationary orbit

be further utilized on the present "first-come

first-served" basis, the technologically less

developed nations' would be at a disatvantage.

To conclude, it is imperative to reafirm

that the geostationary orbit is an international

limited natural resource. All countries have

equal rights to explore and use it on an equitable

basis. It is also necessary to further develop

and elaborate a special legal regime, sui generis

regime, for the geostationary orbit so that all

countries can be guaranteed an equitable

access to it. The basis of such a {special)

sui generis regime have been decidedly

extended to other particular type of outer space

activities. On the basis of valid principles a

set of more specific rules regulating the uses

of the geostationary orbit could be develop,

providing a more elaborate regime for the highly

important part of outer space.

Jakarta, 23 November 19 84

15


Footnotes :

1) Article 10, 3c, International Telecommunica

tion Convention, Malaga - Terremolenos, 1973.

2) Article 33,2 Ibid.

3) Article 10, 3c (Mod. 67), Final Acts of the

Plenipotentiary Conference, Nairobi, 1982.

4) See ITU Radio Regulations, RRI-18, paras. 84

BFA and 84 RG (1976 Ed.)

5) Doc. UNGA No. A/AC.105/203, 29 August 1977.

6) E.G. Sweeney, Adjusting the Conflicting

Interest of Land Owner and Aviator in Anglo

American Law, 3 Journal of Air Law and Com

merce, 368 (1932).

7) John, Institute of Roman Law, 3 — edition,

London, 1907, p. 303.

8) Article 1, Convention on International Civil

Aviation, Chicago, 7 December 1944.

9) UNGA Resolution 1348 (XIII) "Question of the

Peaceful use of Outer Space", December 13, 1958.

10) UNGA Resolution 1962 (XVIII) "Declaration of

Legal Principles Governing the Activities of

States in the Exploration and use of Outer

Space" December 13, 1963.

11) Priyatna Abdurrasyid, Orbit Geostationer Sebagai

Wilayah Kepentingan Nasional Kelangsungan Hidup

Indonesia, Pidato Dies, Lemhannas, 20 Mei 198 3.

i


12) Article II, Treaty on Principles Concerning

the Activities of States in the Exploration

and use of Outer Space, including the Moon

and Other Celestial Bodies, London - Moscow -

Washington DC, January 27, 1967.

13) Cocca, Toward an Adequate Legal Regulation of

the Geostationary Orbit,' Proceedings of the

2 0 — Colloguium on the Law of Outer Space 193,

(1978).

14) Bogota Declaration, Bogota, Colombia, December

3, 1976.

15) UN Doc. A/AC.105/C.2/7/Add.l (1978)..

16) UN Doc. A/AC.105/C.2/L.14 7, 29 March 1984.

17) Report of the Second United Nations Conference

on the Exploration and Peaceful Uses of Outer

Space, Vienna, 9 -21 August 1982.

18) Supro Note 5) and Addendum A/AC.105/203/Add.3,

22 May 1979.

ii


facts and issues concerning the geostationary orbit (a

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