Are the Non-appropriation Principle and the Current Regulatory Regime Governing Geostationary Orbit Equitable for All of Earth’s States?
Vol. 40 Associate Editor
Notions of fairness and common benefit ring throughout the body of international law governing outer space. Indeed, the very preamble of the Outer Space Treaty (“OST”) declares that: [T]he exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development…” However, such noble, egalitarian ideas for the future use of outer space may actually create unequal outcomes down on Earth. This blog seeks to briefly highlight just one example of the unfair limits on the use of outer space for less-developed countries as a result of the Outer Space Treaty’s (“OST”) non-appropriation principle. As the law currently stands, geostationary orbit – a constant orbital position above Earth’s equator – is governed by the OST and is therefore subject to the treaty’s attendant ban on national appropriation. Spaces, or slots, in geostationary orbit are desired because they are exceedingly convenient for communicating with earth. They are highly limited and as a consequence, highly valuable. Moreover, these spaces are allotted on a first-come-first-served basis making them virtually unattainable by less scientifically and economically advanced states, or those that are just plain late to the game. The ban on national appropriation is enumerated in the Second Article of the OST, which states: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by other means.” The geostationary orbital position is generally agreed upon by experts as part of “outer space” and consequently, forbidden from appropriation. The OST is clear in prohibiting claims of sovereignty, but the subsequent clauses leave much to interpretation when considering what other acts constitute “national appropriation.” In other words, the question surrounding geostationary orbital slots is “whether the continued exclusive occupation by a geostationary satellite of the same physical area is a violation of the ban on national appropriation” by use, occupation, or other means. In his article, Major Legal Issues Arising from the Use of the Geostationary Orbit, Stephen Gorove says that, “it is not clear that a satellite in geostationary orbit would be able to maintain its exact position and occupy the same area over a period of time…” so as to “appropriate” and thus violate Article II of the OST. The analysis should not turn on whether the satellites in geostationary orbit maintain their exact position. Instead, it is the continual use of the orbital slot that should be examined in light of the OST prohibition. The average lifespan of a geostationary satellite is 15-20 years, effectively shutting out any other state’s use of that slot for at least that long. A time frame of this nature seems to be the exact type of “use or occupation” the treaty seeks to foreclose because of the consequent unequal access to the use of space, and the consequent potential to cement the economic interests of certain nations and firms. Compounding this concern is the fact that operators of the geostationary satellites need only refile with the International Telecommunications Union (“ITU”) to “renew” a slot and replace old satellites with new ones. Essentially, such operators keep the orbital slot indefinitely. In light of the OST – a treaty dominated by goals of fair and equitable use and access to space – endless use of these valuable slots should rise to the level of national appropriation by means of use, occupation, or other means. The system of geostationary orbital space allocation has elicited several responses, the most famous of which was the Bogotá Declaration (“Declaration”), drafted in resistance to the non-appropriation principle. This was a proclamation by eight equatorial states, which claimed that the geostationary orbit directly above their borders was an integral part of the land over which they exercised complete and exclusive sovereignty. Accordingly, each state claimed that its sovereignty had been breached by the presence of foreign satellites. This argument failed to garnish much support and the Declaration was not signed by a single space faring nation. The Declaration’s opponents refused to entertain the idea of sovereignty over geostationary orbit as it would be an affront to the non-appropriation principle. Though according to the Declaration, this principle is exactly what “enabled the de facto sovereignty [over geostationary orbit] of dominant, global north states” in the first place. By simply appealing to the non-appropriation principle, scientifically and economically advanced states can reject arguments similar to the Bogotá Declaration out of hand while maintaining their own unfettered use of space. The non-appropriation principle makes orbital slots available to “all” states by law, but in reality they are only available to states with the scientific and economic means to use them. In a world where the non-appropriation principle has become customary international law, less developed states have attempted to benefit from outer space in other ways. For example, in 1991 the ITU granted Tonga six orbital positions, but shortly thereafter, its national satellite company began renting and auctioning its spaces to other satellite companies, including a Colorado firm. There were various rebukes of Tonga’s actions by both states and private companies, describing the practice as “a transparent attempt to secure as many orbital slots as possible to trade as a commodity for pecuniary gain.” It was also viewed as a violation of the fundamental principle of non-appropriation. In an effort to avoid such situations occurring again in the future, the ITU now conducts rigorous reviews in an effort to ensure that there are genuine intentions for orbital slots. Following Tonga, it’s clear that states cannot trade an orbital slot granted to them as a pseudo-commodity claim. Based on the lukewarm response to the Bogotá Declaration, it also seems that the international community will not recognize orbital slights by virtue of a nation’s sovereign right to the space over its territory. Of course, there are valid arguments supporting the international rejection of the Bogota Declaration, especially since the national-appropriation principle constitutes international law. But as shown by Tonga, under the current system, even if a less-developed state is afforded geostationary slots, the non-appropriation principle prevents the financial benefit from the sale or lease of such slot. In contrast, private communications firms, and by proxy their home states, are able to benefit financially by selling a stable stream of satellite transmissions to consumers. If the non-appropriation principle allows such private financial gain, why shouldn’t it allow a state to gain in any way it sees fit from the allocation of orbital slots? The principle’s net effect is maintaining the status quo for those states that won the race of placing satellites in geostationary orbit. Effectively then, orbital slots are only valuable for one reason: their use. Only those states with the capabilities to support government space programs, or the economic stability to support space-capable private firms, will be able to place satellites into geostationary orbit. It seems that the non-appropriation principle has had the effect of replicating in space the global financial imbalance on Earth. While the non-appropriation principle has appeared to create disproportionate results regarding the use of outer space, such results do appear to be the unintended consequences of an optimistic treaty governing space. Nevertheless, it is critical that the international community begins to reconsider the effects of that treaty, and the legal regime as a whole, on the equitable use of space. As the economic potential of outer space is further unlocked, the function of the non-appropriation principle may have become outdated. Certainly, any change to longstanding international law – namely a revision of the ban on national appropriation – would have significant unintended consequences of its own. However, with the increasing exploitation of outer space for financial gain, the effect of the non-appropriation principle on geostationary orbital allotment will be one of many examples of less developed states being foreclosed from participating in, and benefiting from, the use of space.
 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, at Preamble, Dec. 19, 1966, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]; Id. at art. 14. This declaration sounds noble enough, especially when considering that the only three original parties to the OST were the United States, United Kingdom, and the Soviet Union.  Geostationary orbit refers to a circular orbit resting at approximately 22,236 miles above Earth’s Equator, giving it a rotational period of 23 hours and 56 minutes: equal to that of Earth. In other words, an object orbiting in this position would appear stationary relative to the Earth. This makes the communication between satellites and ground stations stable and continuous. See Geostationary Orbit, https://www.britannica.com/science/geostationary-orbit (last visited Nov. 12, 2018).  Chloe Billing, There’s a parking crisis in space – and you should be worried about it, (Sept. 29, 2017), https://theconversation.com/theres-a-parking-crisis-in-space-and-you-should-be-worried-about-it-83479 [hereinafter There’s a parking crisis in space].  The ICC does in some cases allot spaces to less scientifically advanced states. See generally, Iulia-Diana Galeriu “Paper Satellites” and the Free Use of Outer Space for an overview of these cases.  Outer Space Treaty, supra note 2, art. 2  Jannat C. Thompson, Space for Rent: The International Telecommunications Union, Space Law, and Orbit/Spectrum 62 J. Air L. & Com. 279, 303 (1996) [hereinafter Space for Rent]  Stephen Gorove, Major Legal Issues Arising from the use of the Geostationary Orbit, 5 Mich. J. of Int’l Law 1, 5 (1984)  Joseph N. Pelton, Satellite Orbits for Communications Satellites, in Handbook of Satellite Applications 94, 99 (Joseph N. Pelton, S. Madry, S. Camacho-Lara, eds., 2013).  There’s a parking crisis in space, supra note 1  Haris A. Durrani, The Bogota Declaration: A Case Study on Sovereignty, Empire, and the Commons in Outer Space, Col. J. Transnat’l Law, http://jtl.columbia.edu/the-bogota-declaration-a-case-study-on-sovereignty-empire-and-the-commons-in-outer-space/  Id.; see also Declaration of the First Meeting of Equatorial Countries, https://bogotadeclaration.wordpress.com/declaration-of-1976/ (last visited Nov. 27, 2018) (“Under the name of a so-called non-national appropriation, what was actually developed was technological participation of the orbit, which is simply a national appropriation…”)  Even before the OST was adopted, underlying states had not formally objected to overhead satellites and “a norm of customary international law seemed to have emerged,” see Major Legal Issues Arising from the use of the Geostationary Orbit, supra note 7, at 4.  Space for Rent, supra note 6, at 281  Id.  There’s a parking crisis in space, supra note 1; Even after the international backlash, in 1996 Tonga claimed that it planned to lease its remaining two slots, see Space for Rent, supra note 6, at 283, and since as late as 2014, Tonga has claimed that it will lease the orbital slots it is granted. Government is not selling the orbital slots that Tonga has right to use, http://www.mic.gov.to/news-today/press-releases/5034-government-is-not-selling-the-orbital-slots-that-tonga-has-right-to-use (last visited Nov. 27, 2018). There has been speculation that Tongasat intended to lease slots to foreign companies.  This practice has also led to the rise of “paper satellites” beyond the scope of this blog. Less developed nations will apply for, and be granted a satellite despite their incapability of placing one in space. The satellite exists only on paper and prevents value creation either in the form of a sale of the space or the use of the space. See generally, Iulia-Diana Galeriu “Paper Satellites” and the Free Use of Outer Space for a review of this practice. The views expressed in this post represent the views of the post’s author only.