International regulations of space communications: Current issues

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EAN : 978-2-8044-6341-0

La Collection de la Faculté de Droit, d’Économie et de Finance de l’Université du Luxembourg, dirigée par André Prüm, est dédiée au droit luxembourgeois, au droit européen et au droit comparé.

Elle accueille des études pratiques, des manuels de cours, des monographies, des actes de colloque et des thèses. Fruit des travaux des professeurs, assistant-professeurs et autres enseignants-chercheurs de la jeune et dynamique Université du Luxembourg, elle constitue le reflet d’une équipe de juristes paneuropéenne.

Ancrés dans l’actualité et de haute qualité scientifique, les ouvrages de la Collection s’adressent aux praticiens et étudiants comme aux universitaires et chercheurs.

Dans la même collection :

A. Prüm (coord.), Le nouveau droit luxembourgeois des sociétés, 2008.

D. Hiez (coord.), Le droit luxembourgeois du divorce. Regards sur le projet de réforme, 2008.

S. Bot, Le mandat d’arrêt européen, 2009.

A. Prüm (coord.), La codification en droit luxembourgeois du droit de la consommation, 2009.

D. Hiez (dir.), Droit comparé des coopératives européennes, 2009.

C. Deschamp-Populin, La cause du paiement. Une analyse innovante du paiement et des modes de paiement, 2010.

J. Gerkrath (coord.), La refonte de la Constitution luxembourgeoise en débat,

2010.

E. Poillot et I. Rueda, Les frontières du droit privé européen / The Boundaries of European Private Law, 2012.

C. Micheau, Droit des aides d’État et des subventions en fiscalité, 2013.

N. R. Tafotie Youmsi, Build, operate and transfer, 2013.

A. Quiquerez, La titrisation des actifs intellectuels, 2013

Preface

Mahulena Hofmann

¹

The international, multidisciplinary workshop – International Regulations of Space Communications: Current Issues – took place in Luxembourg on 24-25 May 2012. The subject of the meeting was selected not only because of numerous important international developments in the sphere of space communications in recent times, especially those adopted by the 2012 World Radio Conference, but also with regard to the crucial role that space communications and its legal framework play in the international arena. The interplay between the various perspectives and the many open questions provide academia with much scope for scientific research in this field.

The workshop was opened by the Dean of the Faculty, Professor André Prüm. The sessions were chaired by Professor Pedro Cruz Villalón, Advocate General of the European Court of Justice, Professor Tanja Masson-Zwaan from the International Institute of Air and Space Law in Leiden, President of the International Institute of Space Law, and Professor Peter Malanczuk from Peking University School of Transnational Law. The workshop was organised within the University of Luxembourg by the 2011-established SES Chair in Satellite Communications and Media Law, Professor Mahulena Hofmann, who expresses her gratitude, for financing the workshop, to the Faculty of Law, Economics and Finance and the Interdisciplinary Centre for Security, Reliability and Trust (SnT) – both parts of the University of Luxembourg – and to the Fonds National de la Recherche (FNR). She would also like to thank her colleagues of the Faculty and the organizational team, composed of Nadja Risch, Andreas Loukakis and Catherine Lemaire, for their support, as well as Mark Williamson for the technical editing of the publication.

The contributions to the workshop were chosen in relation to the perspective from which the legal framework of space communications is observed: international, European and national. The introductory lecture to the international perspective of space communications was given by the author of crucial publications in this sphere, Professor Francis Lyall from Aberdeen. He concentrated on the function and results of the main regulating forum for space communication, the World Radio Conference, which held its most recent meeting in January-February 2012. He raised the question of whether all Member States of the International Telecommunication Union (ITU) are equally capable and willing to implement the central legal provision of ITU rules – the due diligence principle. Moreover, he expressed doubts about whether the attempts of certain administrations to control not only the means of transmissions but also their content correspond to the current legal framework of the ITU.

Yvon Henri from the Space Services Department of the ITU dealt with the current interpretation of Article 44 of the ITU Constitution which declares radio frequency spectrum a limited natural resource. He stressed that this resource, by analogy with resources such as water and minerals, has to be used efficiently, rationally and economically. Furthermore, he explained that the system of the International Telecommunication Union is based on the consensus principle and that the ITU offers a useful platform for bilateral interstate negotiations and coordination.

Those administrations who do not respect the binding rules endanger their own transmissions through interference with other, properly registered operators. Professor Frans von der Dunk from the University of Nebraska analyzed the present procedure of registering frequency assignments in the Master International Frequency Register and their legal impacts in the form of international notification. He stressed that the available mechanisms of settlement of disputes should be adapted to the growing significance of private entities in the sphere of space communications.

Mark Williamson, a UK-based space technology consultant, contributed by explaining the vulnerability of the ITU system, which is based on the presumption that the positions in geostationary orbit and their assigned frequencies will actually be used. However, some States are either not able or willing to launch a planned satellite in an envisaged period and are trying to avoid cancelling their registration by so-called Paper and Phantom Satellites. As part of a deliberation of whether the present registration system should be changed to make it more rigid, Mr. Williamson discussed the possibility of introducing of a service charge or specific fines.

Peter Stubbe from the German Space Agency concentrated on the interpretation of the term bringing into use, which is required to retain the validity of a registration in the Master International Frequency Register. He presented the development of this notion and explained the meaning of the rule of uninterrupted use of the assignment for ninety days, but questioned the capability of the ITU system to monitor the implementation of this provision.

Elina Morozova (Zaytseva) of Intersputnik devoted her presentation to the notion of a Notifying Administration which can apply for frequency assignment on behalf of a group of administrations. She mentioned that several problematic cases connected with the interpretation of this notion had led to a modification of the ITU legal rules.

The European perspective of space communications was analyzed by Dr. Marco Ferrazzani from the European Space Agency, who characterized the legal form of the results of the World Radio Conference as binding treaty regulations. Being a representative from the spectrum users group, ESA was admitted to participate in the WRC, but was not accorded voting powers. He stressed that some of the valid rules can be modified in the future as a consequence of intensified competition for orbital slots and broadcasting, stemming from the search of terrestrial mobile operators for new spectrum. This development was confirmed by John Purvis of SES Luxembourg, who analyzed the position of selected countries in this respect. Furthermore, he dealt in detail with the interpretation of the rule of equitable access to the frequency spectrum.

Gerry Oberst, also from SES, analyzed the growing role of the European Union in the framework of the International Telecommunication Union. Similarly to ESA, the EU is not a regular member of the ITU, but as an observer it can participate in important negotiations. The EU has its own communications competence which is based on the internal market; it can also influence the communications sector in the framework of its membership of the World Trade Organization. Professor Mark Cole (University of Luxembourg) raised the related question of whether the frequencies could be considered as a ‘freely tradable good’ in the context of the legal order of the EU. In this context, Symeon Chatzinotas (University of Luxembourg) contributed to this issue by raising the disputed question of a spectrum market.

A national perspective to the regulation of space communications was offered by Roland Thurmes from the Luxembourg Regulatory Agency. He analyzed the legal basis of the authorization regime for Luxembourg satellite operators, and dealt with a question discussed intensively in Luxembourg today: whether a specific law on space activities, introducing, for example, a national register of space objects and a particular licensing system for space activities, should be drafted and approved in the near future.

The first visible outcome of the workshop, which evoked considerable discussion among attendees, is this collection of contributions from the invited specialists which aims to fill the information gap in this field. It will be used as a textbook at the University of Luxembourg by students of the Masters Course option for SatCom and Media Law, but also offers a source of timely scientific information for all those working and interested in this area.

The most important outcome of the colloquium, however, is the fact that the workshop again confirmed the scientific potential of the area of satellite communications and its regulatory framework. It has shown that this subject is not only open to international research from the perspective of various legal disciplines such as international law, European law, or national constitutional and administrative law, but also to thorough interdisciplinary research. The involvement of specialists in telecommunications, natural sciences and politics in the deliberation of the mostly legal subjects has proved to be the right approach and contributed significantly to the positive result of the meeting.

With the conclusion of each project new questions arise, inviting future, more methodical research. To mention only a few: What is the status of the public-private partnership in the framework of the ITU? What is the difference between its approach and that of the UN in dealing with space communications? How should we evaluate the enormous speed in which legal rules are changing in the ITU in contrast to other international organizations? How do the ITU Member States interpret the due diligence principle and how does it differ from the approach according to the due regard principle of the UN 1967 Outer Space Treaty? Does the European Union draw a dividing line between the means and content of communications in its legislation? What are the tendencies in the jurisprudence of the European Court of Justice when dealing with space communications?

From these reasons, the organisers see the workshop International Regulations of Space Communications: Current Issues as a successful experiment in characterizing Luxembourg as a center of international deliberation of satellite communications issues. The University of Luxembourg could become a center of interdisciplinary academic interest and research in this fascinating area, offering scope for systematization and new theoretical hypotheses. This first experiment has great potential as a starting point for future thought-provoking research projects.

Mahulena Hofmann

Luxembourg, 1 January 2013

1. Holder of SES Chair in Satellite Communications and Media Law, University of Luxembourg.

I.

International Perspective

1.

WRC-12: Evolution or Revolution?

Francis Lyall

¹

Abstract

The ITU Radiocommunication Assembly and World Radio Conference held in Geneva in January/February 2012 were the fruit of much preparation. Inter alia they considered space communications, revising elements of the Radio Regulations and adopting various resolutions. There have been improvements. Some service allotments were altered and others made. ITU-R has been given power to inquire into satellite use and its access to data improved. Some regulations were made more prescriptive. ‘Administrative due diligence’ in the application of the principles of the ITU was stressed. The meaning of the ‘bringing into use’ of a satellite system was clarified. The methods through which terms are developed and defined were improved. Some matters of concern remain.

1.Introduction

Professor Hofmann and her team are to be congratulated on the Luxembourg Workshop on the International Regulation of Space Communications held in May 2012, one outcome of which is this volume. It was timely, dealing with important matters considered and sometimes decided at the ITU World Radio Conference of 2012 (WRC-12)² and the Radiocommunication Assembly (RA) that preceded it³. Present to raise the curtain for other contributors, I learned much. The others, mostly practitioners working in the communications arena, were there to explore in depth. As subsequent chapters show, their insights, comments and criticism of the WRC shed much light. My remit was ‘WRC-12: Evolution or Revolution?’, my answer, ‘a little of both’.

We have come a long way. In 1957 the bleeping of Sputnik I foreshadowed a future of satellites buzzing round the world. It also showed that the ITU would have work to do, for Sputnik interfered with the international time signal system that then maintained Greenwich Mean Time⁴. Clearly the ITU had new problems to deal with. In 1961 the UN got around to acknowledging that ITU expertise was needed for space,⁵ but the ITU had already acted. WARC-59 introduced to the Radio Regulation definitions of an ‘earth station’, a ‘space station’, a ‘space service’ and an ‘earth/space service’⁶. Complexity was imminent. Four years later the 1963 special World Administrative Radio Conference was devoted exclusively to space radio⁷. Thereafter the historic ITU got into difficulties. It had to absorb a huge increase in its membership as the old Empires dissolved. Newly emergent countries began to press for their interests more fully to be met. Technological advance became rampant, and to a significant extent it was the need to cope with space that finally triggered change. Structures that had evolved over a hundred and thirty years could no longer cope. Reconstruction was required. So in 1992/4, in a major revolution, the ITU moved to its current structure in which almost everything is geared to a four-year cycle⁸. WRC-12 and the Radiocommunication Assembly fit the new pattern. Evolution now continues.

2.WRC-12: Organisation

One hundred and sixty-five of the 193 ITU member states were present at WRC-12. One hundred and fifty three delegations signed the Final Acts. It must be stressed that the ITU Radio Regulations as amended by WRC-12 form a treaty, a treaty having same status as the ITU Constitution and the ITU Convention (CS Art. 4 (29-32); CV Art. 6 (37-8))⁹. In considering what was done we must therefore remember the principles of the Law of Treaties, and in particular pacta sunt servanda. ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’¹⁰. ‘Performance’ and ‘good faith’ are essential. I am not sure that all legal advisers of telecommunication enterprises understand this, or that their clients necessarily have this in mind.

Looking for evolution at WRC-12, I first note the organisation of the process of both the WRC itself and the RA. Process has developed since the 1990 reconstruction of the ITU. Decision-making has been facilitated. Before RA-12 and WRC-12 convened, significant time and effort had been spent in preliminaries arranged by the Radiocommunication Bureau. For the RA, the ITU-R Bureau produced a 119-page book of all relevant RA resolutions and recommendations¹¹. For the WRC Conference, Preparatory Meetings (CPM) produced a 680 page Report that tabulated relevant data for each and every item of the WRC-12 agenda and set out options together with their advantages and demerits¹². That helped to crystallise points of agreement and to identify those of conflict. Behind the CPM lay regional meetings which came up with consolidated proposals on many issues of common interest. Further, the thinking of the relevant officials was made available to the conference. Although it is not for the Sector itself or its officials to propose, views can be expressed. Separate reports by the Director of ITU-R and by the Radio Regulations Board indicated thinking within ITU-R¹³. Finally both RA-12 and WRC-12 were aided by a large number of ‘common proposals’ made by groups of ITU members, which had conferred among themselves. In short, RA-12 and WRC-12 were aided by good preparation.

Underlying the preparatory work was the continued involvement of experts. The ITU was one of the first to bring experts right into international decision-making, an evolution now commonly copied by other organisations. Indeed, experts were involved in the creation of the Eastern and the Western Telegraph Unions, before the ITU itself was created¹⁴. The overwhelming impression left by successive Radio Conferences and Radiocommunication Assemblies is one of increasing technical complexity. The Geneva meetings were no different. To be effective, technically oriented international organisations need basic work done by experts in the technology involved. Behind the eventual agreement lie acres of discussion and negotiation between experts. Those lacking a good technical understanding (including myself) need to be careful in what we suggest. We can easily talk rubbish. Our knowledge of physics, and hence what is feasible, may be limited. We need the experts, those referred to in the ITU Convention Annex on ‘Definition of Terms’ (CV 1001) as persons of ‘technical competence’. Often we should defer to their advice rather than to commercial or political considerations. We should be wary of company executives, managers and accountants making technical decisions as to what course of action to pursue.

3.Particular Matters

Turning to particular matters I would start with basic requirements. Without interference-free radio links satellites are useless. The international system through which interference is minimised depends for its implementation on the processes of the states that license and then supervise satellite activities. Article 44 of the ITU Constitution (CS 195-6) speaks of the rational, efficient and economic use of frequencies and orbits, so that all have equitable access to those assets (CS Art. 44.1 and 2 (195-6)). The problem is how to achieve the best use of the radio spectrum and associated orbits. The physics of