This document is downloaded from DR‑NTU (https://dr.ntu.edu.sg) Nanyang Technological University, Singapore. Facts and issues concerning the geostationary orbit (a legal view) Priyatna Abdurrasyid 1984 Abdurrasyid, P. (1984). Facts and issues concerning the geostationary orbit (a legal view). In AMIC‑Department of Information‑ISKI Seminar on Satellite Technology : the Communication Equaliser, Solo, Nov 25‑30, 1984. Singapore: Asian Mass Communication Research & Information Centre. https://hdl.handle.net/10356/79951 Downloaded on 07 Dec 2021 11:00:21 SGT
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This document is downloaded from DR‑NTU (https://dr.ntu.edu.sg)Nanyang Technological University, Singapore.
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.
https://hdl.handle.net/10356/79951
Downloaded on 07 Dec 2021 11:00:21 SGT
Facts And Issues Concerning The Geostationary Orbit (A Legal View)
By
Priyatna Abdurrasyid
Paper No.ll
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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. -»_
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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.
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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"
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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).
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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
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. 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
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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.
• * * . ' . •
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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
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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
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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
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- 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
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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.
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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
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.
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.
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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
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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.
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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.
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