Dispute Settlement in the Area of Space Communication Volume 02: 2nd Luxembourg Workshop on Space and Satellite Communication Law 9781509913190, 9781849468725

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Introduction: Dispute Settlement in the Area of Space Communication Mahulena Hofmann*

1. Scope of the Study What is a „dispute in the area of satellite communication”? Is it possible to analyze this phenomenon as a specific category, or is it so heterogeneous that it prevents any systematic research analysis? In order to enable a discussion on this issue, an extensive notion of a „dispute” was taken as a basis: a dispute is understood as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons;1 the legal status of the parties does not prevent the inclusion of interstate, state-private entities, or private entities-only disagreements. In our understanding, any negotiation process in which there is no agreement can turn into a „dispute” in a legal or real sense and require a mechanism leading to resolution.2 2. Organizational Issues This set of questions was the basis of an application to the Fonds National de la Recherche and resulted in the Second Luxembourg International Workshop on Space Communication organized by the University of Luxembourg – the Faculty of Law, Economics and Finance and the Centre for Security and Trust (SnT) – and the then newly opened Max Planck Institute for International, European and Procedural Law. The workshop was held in Luxembourg in May 2013. The invitation to the workshop as a follow-up to

* Prof. Dr., CSc., SES Chair in Space Communication and Media Law at the University of Luxembourg. 1 Mavrommatis Palestine Concessions, Greece v. United Kingdom, Objection to the jurisdiction of the court, Judgment No 2, PCIJ Series No 2, ICGJ 236 (PCIJ 1924), 30 August 1924. 2 See Gerry Oberst, Dispute Resolution before the ITU – The Operators Experience, in this publication, p. 42.

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the first, 2012 Luxembourg Space Communication Workshop,3 was accepted by renowned specialists in this area coming from many countries of the world as well as from Luxembourg. The conference was opened by David Hiez, director of the Research Unit in Law at the University of Luxembourg who stressed the importance of teaching and research of this specific field in the framework of the University, especially through the SES Chair in Space Communication and Media Law held by Mahulena Hofmann which was established at the Faculty in 2011 and offers education in the area of space communication and its regulatory framework in the framework of the University Master program. Mahulena Hofmann thanked her organizational team, composed of Nadja Risch, Andreas Loukakis, Simona Spassova and Brina Počivalšek, for their support, as well as Mark Williamson for technical editing of the publication. 3. Structures Available for Dispute Settlement in the Area of Satellite Communication 3.1 Overview Which dispute settlement mechanisms are available in the area of space communication? The choice is clearly determined by the legal character of those who are parties to the dispute – States, international intergovernmental organizations,4 private entities or even individuals. To start with the International Court of Justice (ICJ), its procedure is open only for States which have accepted its jurisdiction;5 the same can be said about the dispute settlement system of the International Telecommunication Union (ITU), the World Trade Organization (WTO) or the (until now not established) Claims Commission under the 1972 UN Liability Convention. The European Court of Justice and the European Court for Human Rights can deal only with very specific cases, determined by the material and procedural scope of their respective legal frameworks. Of a different legal character are real or potential investment agreements concluded between States and space communication operators. Disputes

3 See Mahulena Hofmann (ed.), International Regulation of Space Communications: Current Issues, Larcier, 2013. 4 Eg. Intersputnik or Arabsat. 5 Alain Pellet, Peaceful Settlement of International Disputes, MPEPIL 2013.

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arising from such agreements may take place under a variety of ad hoc or institutional arbitration rules frameworks; two international institutions – the International Centre for Settlement of Investment Disputes (ICSID) and the Permanent Court of Arbitration (PCA) offering Optional Rules for Arbitration on Disputes Relating to Space Activities – are primarily connected with disputes where one of the Parties is a State or State entity.6 Because of a variety of cross-border business arrangements falling primarily under the scope of private law, the most common method of settlement of disputes in international economic relations is international arbitration. In cases of institutional arbitration, the parties can use the procedural rules of institution such as the International Chamber of Commerce in Paris (ICC),7 the London Court of International Arbitration (LCIA), or the Stockholm Chamber of Commerce Arbitration Institute (SCC). In the area of telecommunication, the use of alternative methods of dispute settlement is increasing. They were the subject of the introductory lecture „Theory and Practice of Dispute Settlement in International Economic Relations” by Burkhard Hess, the executive director of the Max Planck Institute in Luxembourg. He addressed the expansion of comprehensive alternative mechanisms throughout the world in the last decade. In this context he referred to the Telecommunication Dispute Resolution (TDR) of New Zealand, which provides dispute resolution services under the Multi-UnitComplexes (MUC) Dispute Resolution Code8 for consumers facing problems with their telecommunication providers. TDR is operated by FairWay Resolution Ltd., a Crown Owned Company, which is independent of all the telecommunication companies; the procedure is confidential.9 Following this model, the European Union adopted Directive 23/11/ on Alternative Dispute Resolution (ADR) for Consumer Disputes10 (Directive on Consumer ADR) accompanied by Regulation No 524/2013 on Online Dis-

6 Richard H. Kreindler, Rita Heinemann, Commercial Arbitration, International, MPEPIL 2009, para 39. 7 See SES and Eutelsat Settle their Dispute and Conclude a Series of Agreements Concerning the 28.5 Degrees East Orbital Position, http://www.ses.com; accessed on 4 July 2014. 8 New Zealand Telecommunications Forum : Multi-Unit Complex Dispute Resolution Code, approved by the Minister for Communications and Information Technology pursuant to Telecommunications Act 2001, October 2013. 9 Www.tdr.org.nz, last visit on 3 July,2014. 10 L 165/63, 21 May 2013.

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pute Resolution (ODR) for Consumer Disputes. These instruments11 shall apply to procedures for the out-of-court resolution of domestic and crossborder disputes concerning contractual obligations stemming from sales contracts or service contracts between a trader established in the Union and a consumer resident in the Union through the intervention of an ADR entity which may be set either by public authority, by industry or in cooperation between the public sector, industry and consumer organizations; the duties of confidentiality laid down in the legislation of Member States have to be respected (Article 13 of the Directive). The ODR platform established by the Commission should be a single point of entry for those seeking the outof-court-resolution of disputes covered by the Resolution and enable the secure interchange of data with ADR entities. In order to achieve its consistent application throughout the Union, its provisions have to be transposed to the national legislation of EU Member States by July 2015. Burkhard Hess concluded with a question concerning the character and perspective of dispute settlement procedures, especially with regard to their raising privatization: he stressed that whereas this tendency is to be welcomed in the area of consumer protection, in other areas the judicial character of the procedures and the substantial involvement of the State institutions should be preserved. 3.2 World Trade Organization (WTO) In contrast to typical commercial relations, the dispute settlement mechanism of the World Trade Organization is designed for inter-governmental trade disputes in accordance with the WTO Dispute Settlement Understanding (DSU). Peter Malanczuk from the Peking University of Transnational Law explained the role of the Dispute Settlement Body (DSB) and its procedure which encompasses the possibility of an appeal to the WTO Appellate Body: The telecommunication sector is covered by the Telecommunication Annex to the General Agreement on Services (GATS). With the aim of liberalization of services, it allows foreign companies to use the public networks and facilities of another WTO member to reach customers and provide telecommunication services;12 WTO members are requested to cooperate 11 L 165/1, 21 May 2013. 12 The cable or broadcast distribution of radio or TV programming is excluded from its scope, Article 2 b of the Annex.

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with the ITU. In 1997, agreement was reached to liberalize the trade in basic telecommunication services. The only telecommunication case so far submitted to a panel on the basis of this Annex was a complaint by the US about Mexico’s measures affecting telecommunication services.13 Another area within the WTO framework is the purchase of satellite equipment under the Government Procurement Agreement (GPA); the only relevant case, i.e. European Union against Japan relating to the procurement of a multi-functional satellite for Air Traffic Management,14 was concluded amicably. Peter Malanczuk concluded by stressing the fact that the WTO structure is less suitable for the needs of individual operators and companies as they lack standing under WTO rules. Additionally, the narrow material scope of the WTO offer should be enlarged due to the convergence of information and communication technologies. 3.3 Permanent Court of Arbitration (PCA) To offer a more flexible mechanism for settling disputes in the area of satellite communication, the Rules on Outer Space Disputes were adopted under the auspices of the Permanent Court of Arbitration in 2011. As explained by Frans von der Dunk from the University of Nebraska, these rules are based on the 2010 UNCITRAL Arbitration Rules with changes taking into account the specifics of outer space activities. The services of the PCA SecretaryGeneral are available to States, international organizations and private entities, while there is a high degree of flexibility in determining the scope of „outer space activities”. Also the legal basis for the dispute is irrelevant: the arbitral tribunal shall apply the law or rules designated by the parties as applicable to the substance of the dispute – national law, international law – or decide ex aequo et bono if so authorized by the Parties. The members of the arbitral tribunal shall be appointed by the PCA Secretary General as appointing authority; the use of the Rules is facilitated by providing a list of legal experts who may be appointed by the Parties. The arbitrators are handed a large measure of discretion during the procedure. Interim measures can be imposed at the request of one of the parties; the award of the Tribunal is final and binding. Frans von der Dunk concluded

13 Dispute DS204. 14 Dispute DS73.

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that the PCA Rules on Outer Space Disputes represent the most comprehensive coverage of all aspects of satellite communication and – through the availability of legal experts aware of the specifics of outer space activities and their often complicated technological basis – they offer high potential in future disputes, especially for space operators. 3.4 International Telecommunication Union (ITU) A specific mechanism for preventing and settling disputes in the area of space communication, especially the management of frequency spectrum and registration of orbital positions in geostationary orbit, is the core of one of the oldest international intergovernmental organizations, the International Telecommunication Union. In the sense of the extensive definition of „disputes in space communication”, the whole system of the ITU has been designed to prevent disagreements and remedy their consequences in the area of spectrum management. As underlined by Francis Lyall from the University of Aberdeen, the most important element of this system is the principle of consensus: its significant role can be observed – albeit with different intensity – in all three ITU Sectors. In the Radiocommunication Sector (ITUR) consensus is useful if a workable international agreement is to be obtained; this can be seen in the development of successive generations of the Radio Regulations. The Standardization Sector (ITU-T) which develops and agrees upon standards for the operation of communication technologies has to use this method since a standard does need to be widely applied if it is to be effective, and non-compliance with the standards means non-communication. The situation in the Development Sector (ITU-D) is different: because it does not produce binding law, but rather recommendations and accommodations, the attainment of consensus within its conferences may be facilitated as could be observed in respect of the results of the World Summit on the Information Society (WSIS) initiated by the ITU. In general, consensus is an effective method in many areas of ITU activities. Nonetheless, given the constraints of the laws of physics, it seems wise that – as stressed by Francis Lyall – wherever possible within the ITU, consensus should be sought as the premier method by which we can partake of the benefits of international telecommunications. This conclusion was shared by Srinivasan Venkatasubramanian (ITU): within the procedures of coordination and standard setting, the Member States base their activities on a negotiating consensus which is reflected in 12

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the documents of the ITU Conferences. Private entities can participate in the activities of the three sectors and study groups that are responsible for developing recommendations. The reaching of consensus is a time consuming process which may be perceived by private entities as a delay in making the required changes to the binding Radio Regulations. Therefore, according to Srinivasan Venkatasubramanian, private entities have to convince their Administrations to propose changes to the valid instruments which are based on the principle of cooperation and consensus. The most important legal instrument aimed at prevention of disputes in the area of frequency management are the ITU Radio Regulations: they provide for a three stage procedure to ensure that the non-planned satellite radiocommunication services operate without causing harmful interference to each other: On the basis of this mechanism, the ITU publishes annually more than 250 coordination requests received form 50 different administrations. In this large number of cases, disputes can arise due to the broadcasting satellite coverage, harmful interference and interpretation of the regulatory texts of the ITU. According to the Radio Regulations, the satellite operator reports any detected infringements of the ITU rules to its own administration, which contacts the administration having jurisdiction over the other operator. Only if the dispute is not resolved, the Radio Communication Bureau and later the Radio Regulations Board may be involved. So far, these disputes could be solved without recourse to the compulsory dispute resolution mechanism enshrined in Article 56 of the ITU Constitution and the Optional Protocol on the Compulsory Settlement of Disputes; the ultimate aim of the ITU procedures is not so much to bring about abstract justice but an unspectacular and smooth functioning of international communication. According to Gerry Oberst (SES), this system, however, does not always correspond to industry practice: in the area of Coordination Agreements, the ITU believes that no administration maintains priority as a result of being the first to start the request for coordination procedure (Article 9.6 Radio Regulations); the established practice respected by most national administrations, however, connects a clear negotiating priority with the administration with an earlier date of filing. In other words, filing priorities inevitably shape the position of administrations and operators engaged in a coordination negotiation. Additionally, the position of the Radio Regulations Board that the „disagreements” in the sense of Article 14 of the ITU Constitution are not „disputes”, because of the existence of specific provisions of the ITU Constitution dealing with dispute settlement (Article 56 ITU Constitution), does not 13

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correspond to the needs and practice of today’s telecommunication. Article 14 expects that this Board approves Rules of Procedure for registration of frequency assignments; in case of continuing „disagreement” among the Administrations on the application of the Rules of Procedure, the matter shall be submitted to the next world radiocommunication conference (Article 14 ITU Constitution). Moreover, the Board is charged to deal with appeals against decisions made by the Radiocommunication Bureau regarding frequency assignments (Article 10 of the ITU Convention). The position of the Board that no disputes are involved leads to the situation where the operators and administrations that find themselves in a „disagreement” concerning ITU rules do not have any clear path to their resolution based on the rule of law. Tanja Masson-Zwaan from the University of Leiden concentrated on the cases of harmful interference: she stressed that Article 44 of the ITU Constitution requires that all stations are operated in such a manner as not to cause harmful interference to the radio services of other Member States or of recognized operating agencies. She underlined that this provision, together with the respective Articles of the Radio Regulations, are intended to deal with the „technical “ harmful interference, but were not drafted to prevent or combat cases of interferences of intentional character. There are several paths to prevent and avoid this phenomenon: Tanja Masson-Zwaan mentioned the necessity to strengthen monitoring capabilities able to control the compliance of the administrations with the ITU rules, e.g., through concluding Memoranda of Cooperation with structures such as the International Monitoring System (IMS). According to her, the UN space treaties can also offer a solution. As an example, she mentioned Article IX of the 1967 UN Outer Space Treaty which contains a procedure of consultations in case of harmful interference with space activities of other States. The deficiency of the ITU regime might be balanced by adopting non-binding instruments such as Guidelines or Code of Conduct that address the safe, sustainable and secure use of outer space.

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3.5 European Court of Justice of the European Union The European Court of Justice of the European Union15 is a body which ensures that, in the interpretation and application of the Treaties, the law is observed (Article 19 TEU). According to Mark Cole (University of Luxembourg), it can use several significant competencies that may be relevant for the area of electronic communication, including space communication. The annulment procedure according to Article 263 TFEU has been applied in the older Case C-271, Spain v Commission in which Spain, Belgium and Italy brought an action for annulment of „Directive on Competition in the Markets for Telecommunication Services.”16 Other examples include Case T-350/09 (2012) ICO Satellite v Commission and Case T-441/08 (2010) ICO Satellite v European Parliament and Council in which ICO Satellite Ltd. brought an action for annulment of the Decision No 626/2008/EC of the European Parliament and of the Council on the Selection and Authorization of Systems Providing Mobile Satellite Services. The Case C-59/98 (1999) Commission v Luxembourg is an example of the use of the infringement procedure17 which dealt with the insufficient transposition of the Directive 94/46/EC with regard to satellite communications by Luxembourg. The preliminary ruling procedure (Article 263 TFEU) was applied in the case C-244, 245/10 (2011) Mesopotamia Broadcasting and RojTV referred from the Bundesverwaltungsgericht (Germany) on behalf of the interpretation of Article 22a of the Council Directive 89/522/EEC which requires the Member States to ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality. Mention has to be made also of the related cases C-403 and 429/08 (2011) Football Association Premier League Ltd and Karen Murphy which dealt with the exclusive marketing of matches of the Premier League and use of foreign decoder devices for pub screening. Mark Cole concluded by stating that the number of cases dealing with space communication can increase because of Article 189 TFEU vesting the European Union with specific competencies in the exploration and exploitation of outer space, specifically in the area of navigation services.

15 The ECJ shall include the Court of Justice, the General Court and specialized courts (Article 19 TEU). 16 C-271, 281, 289/90 (1992). 17 Today Article 258-260 TFEU.

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3.6 European Court of Human Rights The European Court of Human Rights has been established for judging alleged violations of human rights stated in the European Convention for the Protection of Human Rights by those who claim to be victim of such violations of rights by one of its Contracting Parties – a State. As stressed by Mahulena Hofmann (University of Luxembourg), the heavy workload of the Court makes the procedures lengthy, the compensation awarded is in the majority of cases low and the hearings and documents deposited by the Registrar principally open to the public. All these limitations might lead to the fact that space operators take much less recourse to the Court than to arbitration bodies. Despite these limitations, there are several cases where the procedure on the basis of the Convention has led to satisfactory results for the applicants in the area of satellite broadcasting. The most important substantive basis of these cases is Article 10 of the Convention guaranteeing the right to expression. A central judgment is the 1990 Autronic v Switzerland case18 which dealt with the proportionality of a ban to receive and impart TV signals from telecommunications satellites, not specifically direct broadcasting satellites. Other cases tackled the licensing procedure (Tele 1 Privatfernsehgesellschaft)19or the right to install a satellite dish in order to receive foreign TV broadcasting (Mustafa).20 Mahulena Hofmann concluded by mentioning that the cases dealing with space communication are closely connected with the framework of the ITU; she added that the path to Strasbourg can be recommended in cases of rejections of licensing of broadcasting by the State organs, and in the denial of the right to install receiving stations in the States Parties to the Convention. 3.7 Dispute Settlement Mechanism of the European Space Agency (ESA) The collaborative spirit of the ESA Convention leads to the fact that ESA is a dispute-averse organization with a strong conciliatory structure in the dealings among its Member States as well as in the relationship between the Agency and industry. Ioanna Thoma (ESA) explained that ESA activities

18 Judgment of 22 May 1990. 19 Judgment of 21 September 2001. 20 Judgement of 16 December 2008.

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encompass a wide range of dealings both in the sphere of public international law as well as private law. The arbitration procedure, enshrined in the ESA Convention, provides accordingly for two distinct types of arbitration: Article XVII concerns the arbitration procedure in case of disputes between two or more Member States, or between any of them and ESA, concerning the interpretation or application of the ESA Convention or its annexes, as well as disputes arising out of damage caused by ESA; Article XXV provides for the arbitral resolution of disputes arising out of written contracts other than those concluded in accordance with the Staff Regulations and introduces proceedings similar to those held in international commercial arbitration. Concerning the agreements with other public bodies, there is a common trend to include arbitration and escalation clauses. In practice, ESA has never been involved in arbitral proceedings with any of its institutional partners – the intention of parties to avoid disputes clearly prevails. With regard to the disputes arising out of contracts concluded with private partners, the principal choice of an arbitral set of rules is primarily those of the International Chamber of Commerce and occasionally the London Court of International Arbitration Rules; again, no arbitration proceedings have yet been initiated that lead to the issue of an arbitral award under a contract. Ioanna Thoma concluded that the one case that resulted in a ruling against ESA before state (US) courts was based on a fundamental misunderstanding of the scope of its functional immunity; the application of a restrictive immunity to acts allegedly committed jure gestionis does not correspond to the existing case law. 4. Liability Issues Susan Poser from the University of Nebraska introduced the US legal framework of space communication. She stressed that this framework is closely connected with the UN 1967 Outer Space Treaty, especially its Articles VI and VII. On the national level, the specifics of the US legal system consist in the interplay of federal and state legislation and common law. Satellite communications and operations by private parties are highly regulated by statutes, primarily the federal ones. As an example, the federal Commercial Space Launch Act provides for regulation of commercial launches, insurance requirements and access to government launching facilities. Federal law also regulates who may operate communication satel17

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lites and requires that their operation is authorized by the Federal Communications Commission (FCC), which also assigns frequencies to various different users. However, some States have also passed laws relevant to satellite operators: these can deal with taxing, with some customer service requirements or with penalization of the interception of communication signals. She concluded by addressing the question of whether these sets of regulation cover all aspects of satellite communication or whether there is any area left in which common law might still be used to create liability allowing individuals to sue for damages caused by satellite operators. According to her, the tort liability will play a larger role in the context of future commercial space flight. Another topical issue connected with the liability area is product liability for erroneous GNSS signals: as explained by Andreas Loukakis (University of Luxembourg), there are suggestions to adopt an international convention which would subject GNSS operators to a strict liability regime with the limitation on the amount supplemented by a compensation fund. However, there are deliberations to consider the GNSS signal as a product, and to consider the signal provider liable for any defective product, which would lead to strict liability of the provider in some legal systems. A support for this position could be found in an analogy between a navigation signal and the supply of electricity, which has been recognized as a product in a number of legal systems, including the European Union. Similarly, defective information stemming from aeronautical charts has been qualified as a product by some of the US courts. On the other hand, it may be argued that the imposition of strict liability might negatively affect innovation for GNSS applications. Consequently, it might lead to more expensive and less accessible GNSS services. The question of immunities, of causation, as well as of defining the notion of defective signals for the purposes of applying product liability law, may pose additional problems. 5. Conclusion The Workshop „Dispute Resolution in the Area of Satellite Communication” served several purposes. First, it was aimed at the research and systematization of this recent and still less intensively explored phenomenon, a purpose that was fulfilled by the exchange of expertise of international specialists from various branches summarized above. Second, it was intended as 18

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an element of the research program of the Luxembourg University SES Chair for Satellite Communication and Media Law which aims – in the long perspective – at the establishment and acknowledgement of the law of telecommunication including space communication as a specific branch of international law; this aim was fulfilled by the scientific discussion of the specifics of space communication and its legal framework, its relation to general international law and to European law, as well as its technical basis and constraints. Third, it served the purpose of establishing the University of Luxembourg as a platform where a top-level discussion between Luxembourg stakeholders and international experts on current, and for Luxembourg significant, issues dealing with the law of telecommunication can take place regularly. This task was fulfilled by the participants, but it is expected that other interested experts attending Luxembourg workshops will offer comparable opportunities. Fourth, the workshop served to increase the possibilities for students of the University of Luxembourg to study current issues of the law of telecommunication; furthermore, the results of the workshop are the basis for an intended future textbook on the law of international telecommunication. From a general perspective, the major outcome of the Workshop is the confirmation of the hypothesis that space communication in its various relations to different branches is fully capable of serving as an object of a scientific analysis. Despite its heterogeneity, its relationships both to the legal regime of outer space and the legal framework of the International Telecommunication Union allows to regard it as one category, albeit from various perspectives. From the methodological perspective, the exchange of views confirmed the fact that no discussion on legal issues on space communication is possible without technical expertise: The multidisciplinary nature of the subject is not a luxury but an indispensable element of any discussion of its legal framework. From the perspective of the very subject of the workshop, the analysis of various dispute settlement mechanisms demonstrated that not all existing mechanisms are equally capable of serving their intended purpose. It appeared that the parties of a dispute very often prefer searching for a consensus and an arbitration procedure in case of disagreement prior to international adjudication. This phenomenon is a consequence of the right of the Parties to the dispute to decide about the persons of the arbitrators, the possibility to apply the equity method rather to rely on formal legal principles, the right to keep the negotiation confidential, as well as the relative speediness of the procedure. The cases where formalized international courts are involved in 19

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this area have been relatively rare: the ECJ has been approached several times, mostly by national courts raising preliminary questions, the European Court on Human Rights dealt with alleged violations of Article 10 ECHR, but mostly in the 1990s. This situation places space communication disputes21 in general close to the area of investment disputes: high costs of investment, its international character, the necessity to maintain acceptable working relations with the opposing Party of the dispute after its conclusion, difficult technical background of the case, little trust in court procedures, low indemnification and the fear of non-implementation of court decisions are the decisive factors of these similarities. As a consequence, it can be predicted that mediation, negotiation and arbitration will remain the main mechanisms of dispute settlement in the area of space communication in the near future.

21 In case that they are not investment disputes themselves.

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ITU and its Dispute Settlement Mechanism Srinivasan Venkatasubramanian*

Abstract The International Telecommunication Union (ITU) is the United Nations specialized agency for Information and Communication Technologies (ICTs) and is one of the oldest Intergovernmental Organizations established in 1865. It is responsible for global management of radio frequency spectrum and the associated satellite orbits. The legal environment is provided by the Constitution, the Convention and the Radio Regulations and the International Telecommunication Regulations of the ITU. The legal framework includes an Optional Protocol for dispute resolution concerning the interpretation or application of the Constitution, the Convention and the Administrative Regulations. This paper is an elaboration of the presentation made in the 2nd Luxembourg Workshop on Satellite Communications devoted to issues relating to Dispute Resolution. 1. Introduction The legal framework of the ITU enables global management of radio frequency spectrum and the associated satellite orbits, while the United Nations 1Treaties, Principles, Resolutions and bilateral and multilateral agreements between countries regulate all other aspects of the satellites, inter alia, launching and notification, and peaceful use for scientific and telecommunication purposes. The legal framework of the ITU consists of the two basic instruments – the ITU Constitution2 and the ITU Convention3 which are

* Head of the Space Systems Coordination Division in the Radiocommunication Bureau of the International Telecommunication Union, ITU. 1 http://www.oosa.unvienna.org/pdf/publications/st_space_11rev 2E.pdf. 2 The ITU Constitution (CS). 3 The ITU Convention (CV).

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complemented by the Administrative Regulations4 – the Radio Regulations and the International Telecommunication Regulations. These legal texts are adopted by the Plenipotentiary Conference5 and the World Radiocommunication Conference6 held once every four years, and the World Conference on International Telecommunication. Plenipotentiary Conferences also adopt and amend the Optional Protocol7 for compulsory settlement of disputes between Member States8. The Union9 deals with Member States only and hence the dispute resolution mechanism envisages disputes between Member States and not between private entities. Decisions taken in the ITU conferences are, generally, based on consensus reached between the Member States. Delegates from Sector Members10 and Associates consisting of private sector entities, IGOs11 and Regional Organizations as well as academia also participate in the ITU conferences in addition to their participation in the Study Group and the Working Party meetings of the three sectors – the Radiocommunication Sector, the Telecommunication Standardization Sector and the Telecommunication Development Sector of the ITU. 2. The Purposes of the ITU In order to understand the dispute settlement mechanism available to the Member States it is necessary to understand the purpose of the ITU and some of the provisions relating to usage of radio frequency spectrum that are contained in its Constitution. The purposes12 of the Union are to “maintain and extend international cooperation among all its Member States for the improvement and rational use of telecommunications of all kinds; to promote the extension of the benefits of the new telecommunication technologies to

4 The Administrative Regulations (AR) consisting of the Radio Regulations (RR) and the international Telecommunication Regulations. 5 The Plenipotentiary Conference (PP). 6 The World Radiocommunication Conference (WRC). 7 Page 175 Collection of Basics Texts of the ITU adopted by the PP (Edition 2011). 8 The Member States – 193 countries which are currently members of ITU. 9 The Union – International Telecommunication Union. 10 At present there are more than 700 Sector Members and Associates and 52 academia members participating in the work of the three Sectors of the ITU. 11 IGOs – Inter-Governmental Organizations. 12 Refer to No.2 to 9 of Article 1 of CS.

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all the world’s inhabitants; to promote the use of telecommunication services with the objective of facilitating peaceful relations; to harmonize the actions of Member States and promote fruitful and constructive cooperation and partnership between Member States and Sector Members.” To attain13 these ends, the Union shall in particular “effect allocation of bands of the radio-frequency spectrum, the allotment of radio frequencies and the registration of radio-frequency assignments and, for space services, of any associated orbital position in the geostationary-satellite orbit or of any associated characteristics of satellites in other orbits, in order to avoid harmful interference between radio stations of different countries; coordinate efforts to eliminate harmful interference between radio stations of different countries and to improve the use made of the radio-frequency spectrum for radiocommunication services and of the geostationary-satellite and other satellite orbits; […] promote participation of concerned entities in the activities of the Union and cooperation with regional and other organizations for the fulfillment of the purposes of the Union.” The ITU ensures allocation of radio frequency spectrum to various radiocommunication services by the World Radiocommunication Conference process that adopts the Radio Regulations. The RR also contain mechanisms for coordination between radio stations of different countries to avoid harmful interference. Like many other inter-governmental organizations, the ITU deals only with the countries and not with private entities in ensuring that the purposes of the Union as defined in the Constitution are met. This situation can’t be interpreted to mean that the private entities have no say in either drafting or interpreting the instruments of the Union. Private entities participate in the work of the ITU Study Groups that are responsible for developing Recommendations and conduct studies based on which countries submit proposal to WRCs that help to modify the Radio Regulations. Private entities also participate as part of the delegation of countries that participate in the Plenipotentiary Conferences and WRCs. By taking part in the submission of proposals for modification of the CS, the CV and the RR and by taking part in the debates of conferences alongside the government agencies, private entities contribute or influence the drafting of the international treaties. The decisions of the ITU conferences are based on the cooperation and consensus. Because of the time consuming process of reaching consensus, private entities may perceive that the effort in achieving the cooperation and con-

13 Refer to No.10 to 19A of Article 1 of CS.

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sensus is resulting in delay in making required changes to RR to accommodate new applications of radio technologies. It is the responsibility of the private entities to convince their Administrations to propose changes to the very purposes of the Union which are based on maintaining and extending international cooperation. Further, the ITU regulations require the Member States to ensure that the stations licensed by them abide14 by the provisions of the CS, the CV and the RR. The Member States have to license15 the radio stations under their jurisdiction with all conditions that would ensure interference-free operation with the radio stations of other countries. However, administrations retain their freedom to operate stations for security of the country on the principle contained in Article 48 of the CS. It is also possible to operate a radiocommunication station in derogation16 of the Table of Frequency Allocation, except in some very specific frequency bands, provided such operation does not cause harmful interference to nor claim protection from harmful interference by stations of other administrations operating in accordance with the RR. 3. The Radio Regulations The Radio Regulations contain Articles, Appendices, Resolutions and Recommendations that help to achieve the objective to enable Radiocommunication stations of different administrations to operate without harmful-interference between them, in addition to ensuring efficient and economic use of spectrum to ensure equitable access to all countries of the world. As envisaged in provision No.12 of the CS, the procedure to coordinate and notify for registration of frequency assignments in the MIFR17 is enshrined in Articles 9 and 11 and Appendices 30, 30A and 30B of the RR. The procedure to ensure harmful-interference-free operation18 of nonplanned services ensures efficient use of spectrum if every administration follows the requirement to limit the use of spectrum and other technical

14 15 16 17

Refer to No.197 of Article 45 of CS. Refer to Article 18 of RR. Refer to No.4.4 of Article 4 and No.11.41 of Article 11 of RR. Master International Frequency Register (MIFR) is the database in which frequency assignments are contained. 18 Refer to Articles 15 and 16 of RR.

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requirements contained in Article 4 of the RR. Ensuring that private entities abide by the provisions of Article 4 rests with the national telecommunication administrations. Planned use of spectrum, that ensures equitable use, is contained in AP 30, 30A and 30B of the RR. Fewer disputes arise due to Planned services compared to non-planned services for many technical and regulatory reasons, the details of which are beyond the scope of this writeup. For reasons given in the ensuing paragraphs, more disputes arise due to non-planned services using the radio frequency spectrum. The Radio Regulations contain a three stage procedure to ensure that the non-planned satellite radiocommunication services operate without causing harmful interference to each other. In order to bring into use frequency assignments to a satellite network in the non-planned services, an administration has to coordinate by ensuring publication of an Advanced Publication Information (API), followed by Coordination Request (CR/C) in the BR IFIC19 of the Space Services, which is published once every two weeks. The list of administrations and satellite networks with which coordination has to be completed before bringing a satellite into use or notify for recording in the MIFR are contained in the CR/C publication. According to Article 8 of the RR only those frequency assignments recorded in the MIFR are entitled to international recognition and protection which are conditioned by the coordination agreements and provisions of the RR. This entire procedure, involving the API, CR/C and Notification, has to be completed in 7 years. 4. Reasons for Disputes Each year the ITU publishes special sections for more than 250 coordination requests received from 50 different administrations. In each of the 250 special sections the ITU indicates the affected administrations and affected satellite networks. At the very least, 20 administrations and 200 satellite networks are identified for a satellite network filing with which coordination needs to be effected by satellite operator before bringing into use a satellite network. Depending on the frequency bands used and nature of service the number of administrations and satellite networks identified can be far greater than the above indicated numbers. Furthermore, each satellite operator has

19 International Frequency Information Circular of the Radiocommunication Bureau (BR IFIC).

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to engage in coordination activity with all relevant administrations and satellite networks that are filed subsequently in order not to lose the protection for their satellite network, and hence coordination is a continuous activity once an administration files for a satellite network. As mentioned earlier, the non-planned satellite communication service is based on a first-come, first-served procedure that ensures efficient use of spectrum. The coordination procedure is generally based on priority of filing for ensuring interference-free operation, which is perceived as an entry barrier. Disputes also arise due to the broadcasting satellite service coverage of the territory of a country and this sometimes results in deliberate harmful interference. Another source of dispute between administrations has to do with differences in interpretation of the various regulatory texts of the Union. 5. Current Status of Dispute Resolution So far, disputes have been resolved without recourse to the compulsory dispute resolution mechanism available to administrations as part of the basic instruments of the Union. Before applying the provisions of the formal dispute resolution mechanism available to the Member States, there are three possible steps to resolve the disputes, which are based on the cooperation, goodwill and consensus between Member States. In the first step, when a satellite operator has a dispute, it is brought to the notice of its own administration. This administration first normally attempts to engage that administration of the satellite operator, which is involved in the dispute. If the dispute is not resolved, then it is brought to the Radiocommunication Bureau of the ITU, under the relevant provisions of Article 7 to Article 15. Based on past experience, the Bureau provides its assessment of the issues involved and its recommendations to both administrations to resolve it. In step two, either of the administrations involved may escalate the case and request the intervention of the Radio Regulations Board (RRB)20. In step three, an appeal against the decision of the RRB can be made to the World Radiocommunication Conference. WRCs decide on the disputes based on cooperation, goodwill and consensus of participating administrations in the conference. 20 RRB, consists of 12 elected part-time members, meets 3 or 4 times a year to approve the Rules of Procedure and to consider any request for intervention from administrations on matters relating disputes.

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6. Optional Protocol for Compulsory Settlement of Disputes At the time of signing the Constitution and the Convention, the Plenipotentiaries also sign the Optional Protocol (OP)21 on the Compulsory Settlement of Disputes, expressing their desire to resort to compulsory arbitration, so far as they are concerned, for settlement of any disputes concerning the interpretation or application of the CS, CV or the Administrative Regulations. Article 56 of CS and Article 41 of the CV establishes the procedure for settlement of disputes between Member States. Settlement of Disputes: Article 56 of the Constitution establishes the procedure for settlement of disputes between the Member States of the Union. According to this procedure administrations may agree to resolve their disputes by negotiation, through diplomatic channels, or in accordance with bilateral or multilateral treaties, or with any other method mutually agreed upon. If none of the methods is adopted, Member States party to a dispute may have recourse to arbitration in accordance with the procedure defined in the Convention. Arbitration Procedure: Article 41 of the Convention defines the Arbitration Procedure to be used if none of the methods specified in Article 56 of the Constitution is agreed between administrations party to the dispute. Arbitration procedure is initiated by an Administration when a notice intending to submit a case is transmitted to the other administration party to the dispute. Thereafter, both administrations may agree to entrust the dispute to individuals, administrations or governments. If there is no agreement between administrations within one month, as to whom the dispute is to be entrusted, the arbitration is entrusted to governments which are not party to the disputes but are parties to the agreements, namely the CS, CV and AR. When administrations choose Individuals as Arbitrators, they cannot choose their own nationals or anyone employed by any of the administrations involved in the disputes, which could be more than two, in which case administrations would form two groups having a common position. Once agreed to go for Arbitration, the parties have a period of three months to appoint an Arbitrator. If the two arbitrators appointed are individuals then each of the Arbitrators shall choose a third Arbitrator of proper nationality. In case countries fail to agree on the third Arbitrator then each country nominates one out of

21 The OP that is in force was adopted by the Plenipotentiary Conference in 1992, Geneva.

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which the Third Arbitrator is selected by the drawing of lots by Secretary General of the Union. The parties may agree to have a single arbitrator appointed by agreement or by drawing of lots by the Secretary General of the Union. Once appointed, the Arbitrator(s) decide(s) the venue and procedures for conduct of the proceedings. It is up to the concerned administrations to decide about sharing the decision of the Arbitration with the Secretary General of the Union. Countries involved in the disputes will have to share the common expenses. Optional Protocol: Article 1 of the Optional Protocol on the Compulsory Settlement of Disputes (CSD) amplifies the procedure laid down in Article 41 of the CS. The OP in force was adopted by the 1992 Plenipotentiary Conference and has been ratified22 so far by 64 countries. The OP is applicable only between the countries who are signatories to it. For disputes between those countries that have not ratified it, the compulsory settlement of disputes may take longer in view of the fact that the parties involved in the disputes may delay the appointment of an arbitrator, since the intervention of the Secretary General for appointment of an Arbitrator envisaged in Article 2 of the Optional Protocol would not apply to them. The OP contains six Articles that provide entry into force, procedure for amendment, ratification, including the status of ratification, and possible denouncement by Member States signatory to it. 7. Conclusions The regulatory texts of the ITU may be analyzed using the set of criteria23, namely obligation, precision and delegation, to classify it as a “hard” or “soft” international law. Some of the provisions may qualify for “hard” law due to clear set of obligation and very high degree of precision. The law may have to be categorized as “soft” in view of the fact that the delegation of the interpretation of the regulation is bilateral or multilateral who are party to the instruments, even when going through the formal dispute resolution mechanism.

22 Information on the status of ratification of Instruments of the Union can be found at:-http://www.itu.int/online/mm/scripts/mm.final-cts.list?_languageid=1&_agrmts _type=PROT-92. 23 Abbott, Kenneth W., and Duncan Snidal. 2000. "Hard and Soft Law in International Governance." International Organization 54:421-56.

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Another issue that complicates the strengths of the provisions is related to the frequency with which the law is being modified. The CS, CV and RR are modified every 4 years. It is extremely difficult for a country to ratify within 4 years the Rules modified by the Plenipotentiary Conference and World Radiocommunication Conference. For example, only 19 countries have so far ratified the text of the PP-10 Conference in three years’ time. The numbers of countries that have ratified the various WRCs are far fewer compared to PPs. The negotiations have to take place between administrations which might or might not have ratified the same version of the regulatory texts. Further, it is clear from the CS and the CV of the ITU that the national telecommunications administrations of the Member States of the ITU have a great role to play in implementing part of the international law. They also have to ensure that the cooperation and consensus envisaged as the purposes of the Union is respected. This seems to be the case for those entities involved in satellite communication judging from the fact that the formal dispute resolution mechanism has never been utilized. In order that the situation stays that way, administrations have to ensure that the requirement of non-governmental players remain satisfied by maintaining or expanding their participation in the treatymaking conferences, as is the practice of some of the Member States of the Union. Bibliography Collection of the Basic Texts of the International Telecommunication Union adopted by the Plenipotentiary Conference (2011 Edition), the ITU Publication. Radio Regulations (Edition of 2012), the ITU Publication. Hofmann, Mahulena (ed.), International Regulations of Space Communications, 2013. Abbott, Kenneth W., and Snidal, Duncan, Hard and Soft Law in International Governance. International Organization 54:421-56.

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The Role of Consensus in the ITU Francis Lyall*

Abstract The attainment of consensus is a major avenue through which agreement on the regulation of international communications is obtained. Sometimes consensus fails, but in broad it is to be preferred to avoid, or where necessary solve, disputes. 1. Introduction In late 2011 I published a book on the ITU and the UPU.1 My publishers were kind enough to provide me with a pdf version, so, preparing for the Workshop, I called it up and searched for ‚consensus’. I found that the term appears only twice in the whole 340 pages, and one of those had to do with the UPU. This paper corrects my failure adequately to draw attention to the matter. In the ITU consensus is extremely important, being the method through which much is achieved. While it can play a role in dispute settlement, more importantly it often prevents or pre-empts the occurrence of disputes in the first place. Its prophylactic function must not be underestimated. Consensus is the result of discussion – sometimes amounting to negotiation – that may end with formal law-making or in a less formal arrangement an accommodation between parties of divergent interests. The Oxford English Dictionary speaks of ‚the collective unanimous opinion of a group of persons’. For Wikipedia it is ‚a group decision-making process that seeks the consent of all participants’. The aim is that all should ‚feel together’ – ‚con-sensus’ to split it into its Latin roots. However, an important point is that the consensus may be ‚soft’ or it may be ‚hard’. A soft consensus can

* Emeritus Professor of Public Law, University of Aberdeen. 1 F. Lyall, International Communications: The International Telecommunication Union and the Universal Postal Union (Farnham, UK: Ashgate, 2011).

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be flexible, and may even apply differently to different participants. It can be almost, but not quite, an agreement to differ, but only within agreed limits. A hard consensus usually leads to the adoption of clear rules but it can also amount to an unwritten, unexpressed but nonetheless observed, pattern of practice. Consensus appears in many fora. The ITU is but one institution in which it is found, and negotiations in many other arenas have been aided by adherence to its principles.2 The attainment of consensus can take time and effort.3 In any gathering a considerable spectrum of interests may have to be accommodated. Give and take is involved. Sometimes mediation by an external party helps. For those who are space-oriented the proceedings of the Committee on the Peaceful Uses of Outer Space (UN COPUOS) come to mind.4 There consensus has been taken to require that all agree, which is, perhaps, in some instances too extreme a requirement.5 At any rate it is noticeable that COPUOS has not recently adopted further ‚Principles’ of space

2 L.B. Sohn, Introduction: United Nations Decision-Making: Confrontation or Consensus? (1974) 15 Harv. J. Int. L. 438-445; B. Busan, Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea, (1981) 75 AJIL 324-348; A. D’Amato, On Consensus (1970) 8 Can. YBIL 104; A.E. Gotleib, The Impact of Technology on the Development of Contemporary International Law, 170 Hague Recueil, 1981-I, 115 – 329 at 141-146; C.W. Jenks, Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organizations, in Cambridge Essays in International Law : Essays in honour of Lord McNair, (London: Stevens, 1965), 48-63 at 55-62. 3 In relation to the early days of COPUOS Manfred Lachs commented: „Consensus is certainly a very painstaking process; it requires great patience and mutual understanding, particularly in an atmosphere of tension and distrust. However, while taxing the patience of delegates it turned out to be effective“ ; M. Lachs, The Treaty on the Principles of the Law of Outer Space 1961-1992 (1992) 39 Neth. Int. L. Rev. 291-302 at 293. 4 E. Galloway, Consensus Decision-making by the United Nations Committee on the Peaceful Uses of Outer Space, (1979) 7 J. Sp. L. 3-13. On COPUOS see more fully F. Lyall and P.B. Larsen, Space Law: A Treatise (Farnham, UK: Ashgate, 2009) 18-22. 5 Notoriously, when consensus was departed from in COPUOS we ended up with the only UNGA Space Resolution that is a failure, the Principles Governing the Use by States of Artificial Earth Satellites for Direct Television Broadcasting, 1982, UNGA Res. 37/92.

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The Role of Consensus in the ITU

law on a basis of consensus, while it has commented favourably on the efforts of others to produce consensus-based practice.6 Precisely because the hope is that all will concur in a consensus, consensus can be perilous. At one extreme an intransigent participant can paralyse the process,7 or demand exorbitant or unwise concessions from others.8 The drive for consensus may result in a compromise that weakens the eventual result. Consensus may be expressed in vague words, words that are capable of divergent meanings to different parties. As written elsewhere,9 consensus may result in ambiguity, permitting or masking contradictory views as to the exact meaning of a phrase, a provision or even a text. Not all participants always have equal command of the languages being used and may misunderstand or mistake meaning. What are basically rhetorical flourishes can be included to accommodate personalities, and ‚prolonged negotiations’ can dilute ‚the resulting legal product into a catalogue of platitudes’.10 Again, consensus does not imply that there is unanimity among the parties. Absence of dissent is not the same as assent. Abstention from the discussion of a point is not taken to imply dissent and a possible idiosyncratic, or erroneous, interpretation of particular language may be

6 For example COPUOS commended the Space Debris Mitigation Guidelines formulated by the Inter-Agency Space Debris Coordination Committee (IADC): see UN GAOR A/62/20 paras 17-8 with Annex, and UNGA 62/217 paras 26-8. 7 In his contribution during a special session of the UK House of Commons marking the death of Margaret Thatcher, Sir Malcolm Rifkind, who was first a junior minister in her government and then her Secretary of State for Scotland, reported that Mrs. T. was once asked whether she approved of consensus. To everyone’s astonishment she replied that she did. Then she added that there should be a consensus behind her convictions. Her hearers were uncertain whether she meant the comment as a joke. Over the years Sir Malcolm had come to the conclusion that she was ‚actually being deadly serious’: 560 HC Hansard, 10 April 2013, col. 1623-5. The tributes to Baroness Thatcher in both the House of Commons and House of Lords sessions are worth reading. They are available electronically: 560 HC Hansard, 10 April 2013, cols. 1613-1653, 744 HL Hansard, 10 April 2013, cols. 1127-1206. 8 D. Tan, Towards a New Regime for the Protection of Outer Space as the “Province of All Mankind”(2000) 25 Yale J. Int. L. 145-195, at 165 n. 94 (citing W. Lang, Diplomacy and International Environmental Law-Making: Some Observations, (1992) 3 Y.B. Int. Env. L. 108 at 113.). 9 Lyall and Larsen, above n. 4, at 21. 10 Per R.G. Steinhard, Outer Space, in O. Schachter and C.C. Joyner, eds., United Nations Legal Order, 2 vols. (Cambridge: ASIL, Grotius, Cambridge UP, 1995), Vol. 2, 753-787 at 759. Cf. D. Tan, above n. 8, at 165-6.

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passed over, un-noticed by, or even concealed from, other parties, only later to cause trouble. In short, consensus has its dangers. 2. Consensus in the ITU Turning to the ITU itself, I begin with a general comment. Despite what follows it should be understood that decision by vote is entirely possible within the ITU structures. The broad rules are contained in the ‚General Rules of Conferences Assemblies and Meetings of the Union'.11 As far as consensus is concerned I recommend as helpful a 2004 discussion paper prepared for the ITU and the World Bank on dispute resolution. It is suffused with references to ‚consensus’.12 But I would stress that in the ITU consensus often operates before a dispute arises. Consensus achieved prior to formal engagement can smooth the path. A good example is the adoption of the ITU Constitution and Convention. The basic ITU Constitution and Convention of 1992/4 replaced a succession of previous treaties, former practice being that a new treaty was adopted by each plenipotentiary conference. The new system was very largely the product of the recommendations of the High Level Committee set up by the Nice Plenipotentiary Conference of 1989.13 Having spoken with some participants I gather that in discussions within the Committee consensus was aimed at. If progress was to be made in updating what had become a sclerotic institution, a united view had to be put forward. The strength of what was done in 1992, as revised at Kyoto in 1994, is shown in that subsequent plenipotentiaries have not made major changes to the basic documents, and, indeed that the later plenipotentiaries have made very few alterations to them. That consensus worked. I would also make here one general point. Now there is an extensive use of preparatory meetings of one kind and another in which groups of ITU

11 These used to form part of the Convention, but now are a separate document, available in the Collection of Basic Texts of the Union (Geneva: ITU, 2011) although some parts of the former Art. 32 remain. 12 Dispute Resolution in the Telecommunications Sector: Current Practices and Future Directions (Geneva: ITU, 2004): www.itu.int/ITU-D/treg/publications/ITU_WB_ Dispute_Res-E.pdf. 13 Tomorrow's ITU: The Challenges of Change: the Report of the High Level Committee to review the structure and functioning of the International Telecommunication Union (ITU), (Geneva: ITU, 1991).

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The Role of Consensus in the ITU

members gather and eventually present coordinated proposals to conferences. Hammering out those united proposals is a process in which consensus is important. A consensus that has thus been forged adds weight to proposals when the matter goes on to the formal stage of conference. I also note that Art. 32B.1 of the ITU Convention requires dissentient delegations as far as possible to ’endeavour to conform to the opinion of the majority’.14 Within the new ITU ‚consensus’ has a role in all three of what I might call the operational aspects of the organisation, the Sectors. Whether it operates within the central Secretariat I would not presume to speculate. 2.1 The Radiocommunication Sector (ITU-R) In ITU-R consensus is useful, if not indeed necessary, if a working/workable international agreement is to be obtained. You can see this in the development of the successive generations of the Radio Regulations. Of course here the end result of consensus is a treaty having the force of law, but in the negotiations that lead to the formal provisions of the Regulations consensus clearly must play a role. Both in settling the rules, and in operating them, one can never forget the constraints of the Laws of Physics. The unchangeable physical aspects of the radio spectrum mean that compromise is essential if all are to get a goodly portion of what each would want. Of course in the Table of Allocations the possibility of footnote exemption exists, but even that helps attain agreement on a workable set of Regulations. That said, footnotes are proliferating and I do find myself wondering whether the Regulations could be simplified. I am glad to understand that that problem is being worked upon. A related function of ITU-R where consensus is sought lies in the settlement of disputes. The Regulations require that a notified assignment should not cause harmful interference with the service provided by a transmitter already on the Master International Frequency Register. Prior coordination may be required. Again a state may find that its services, or those of its licensed entities, are affected by interference emanating from another ITU member. In both instances the ITU-R can be involved in arriving at a consensual solution. Beyond that there is the possibility of going to the Radio 14 ITU Convention Art. 32B.1: ‚As a general rule, any delegation whose views are not shared by the remaining delegations shall endeavour, as far as possible, to conform to the opinion of the majority’.

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Regulations Board – which seems to me to be increasingly frequent. Even there, however, a consensual solution is the best outcome. 2.2. The Development Sector (ITU-D) For expository reasons, which you may later deduce, I want first to turn to the ITU Development Sector (ITU-D). Here we may find consensus at work and having both its greatest difficulties and most obvious manifestations. In the other Sectors consensus leads to obvious agreement and results that are effective either as a matter of law, or as acceptable future trajectories of progress in the technicalities of tele-communications. ITU-D is different. Because ITU-D does not produce law but rather only recommendations and accommodations, the attaining of consensus within its conferences and meetings may be eased. ITU-D meetings may result in consensus, thanks only to the omission of those who may not like what is proposed in that consensus. That can mean either their withdrawal from the process, or their unwillingness even to be involved in the first place. ITU-D results can be aspirational or comprise an abstract idealism expressed by a majority but which fails to attract the commitment of the powerful. Remember that ITU-D is a new element in the ITU. For an entire century after its creation the ITU served as a technical body, a body through which the technicalities of international electrical communications could be ironed out, through which the laws of physics could be complied with, to the benefit of all. All well and good when ITU membership was small, being largely composed of major states and empires. That has changed. Consider the facts. ITU-D itself is the product of an agitation by the lessdeveloped elements of the ITU that really surfaced in the 1982 plenipotentiary in Nairobi, although its roots can be traced further back.15 In short, as constituted from its inception down to the Second World War, the ITU was an institution dealing with the communications needs of the international community. That community was small, empires speaking for huge territories. The breakup of the empires put paid to that. It took a couple of decades for the new states to find their voice, but what are twenty years in international affairs? The new states needed to be active in the international organisations that fundamentally affected them. They wanted to be helped into

15 F. Lyall, above fn. 1, 114-9.

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The Role of Consensus in the ITU

full participation in the then current international communication systems. Indeed, thereby many have been able to leapfrog the communication systems of the previous masters, ‘modern technology’ being brought in without the need to pass through stages of intermediate systems. All that said, it is the case that ITU-D works through encouragement rather than rule-setting. It follows that consensus can both be easier and more difficult within its interactions. While ITU members would not be willing to commit themselves to actual help – or, more importantly, to financial commitment – they could be unwilling to be seen to impede the telecommunications developments of other newer participants in the international telecommunications environment. Both infrastructure and access might be involved. Thus we have the World Summit on the Information Society (WSIS), and the developments and progress, and lack of progress, thereafter. While technically WSIS is a UN-sponsored activity, it was an ITU initiative, with its roots within ITU-D. WSIS, and its subsequent organisation, has been serviced by the ITU. A major WSIS aim was/is the bridging of the digital divide and the participation of the less-developed countries in the Internet. Both in framing the WSIS agenda and in driving it forward consensus has been important. It has to be said that this was not consensus in its best form – where in the end result there is a general underlying agreement on what should be done. Rather WSIS demonstrates the consensus of disparity. Some were highly in favour. Others, dragging their feet, were not willing to stand against proposed developments and activities, which had a clear, if imperfect, consensus behind them. 2.3. The Standardisation Sector (ITU-T) Now, Standardisation, ITU-T. When I was grubbing around for ideas for this paper – in polite language ‘doing my research’ – it was intriguing to come across a number of discussions of the importance of consensus in standardsetting in a variety of areas. For example, the developing international environmental law often involves standards being set, complied with, and, to

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an extent at least, policed.16 In this consensus plays a major role.17 It was also instructive to look at the relevant part of the website of the International Organisation for Standardisation.18 In ITU-T standards are developed and agreed for the operation of communications technologies, technologies on which we rely.19 Consensus is the obvious method for proceeding here since a standard does need to be widely applied if it is to be effective.20 For the ITU the programme of the various ITU-T Study Groups results in any eventual Recommendations.21 Despite the name, these are rules, compliance with which is in a sense voluntary. Non-compliance means non-communication. You cannot sue for simple non-compliance, or to compel compliance. Only if non-compliance has other effects will a legal wrong emerge. It is important that the development and definition of standards is carried out by persons expert in the area under discussion. That has two aspects. First, negotiation should be carried through by the technically qualified, those who know the physics involved and the problems which technology may produce in the implementation of agreed standards. Second, occasionally business-knowledge or appreciation is needed. In the development of ITU standards what is practicable in business terms may mould outcomes and side-line what might be the best technical solution. The working of the World Wide Web, including the Internet, and mobile communications all depend on agreed standards. But another aspect of the World Wide Web has proved troublous. One of the problems that have become clear during the WSIS process is ‚who controls the Internet’ – a matter different from access to it. The first

16 E. Burleson, Climate Change Consensus: Emerging International Law’ (2009-2010) 34 Wm. & Mary Env, L. & Pol. Rev., 534-588; M. Onoda, Satellite Earth Observations as ‚Systematic Observation’ in Multilateral Environmental Treaties, (2005) 31 J. Space L., 339-412. 17 Cf. ‚Reaching consensus’, of the International Organisation for Standardisation: http://www.iso.org/sites/ConsumersStandards/en/1-5-reaching-consensus.htm. 18 International Organisation for Standardisation: http://www.iso.org/sites/Consumer sStandards/en/1-5-reaching-consensus.htm. 19 D.A. Heiner, Five Suggestions for Promoting Competition Through Standards, (2011) 7 Competition L. Int., 20-31. 20 K. Irion, Separated Together: The International Telecommunications [sic] Union and Society, (2009) 13 Int. J. of Comm. L. & Pol. 950113 and material there cited. 21 It is notable that ITU-T adopts ‚recommendations’, not ‚rules’. In practice there may be little difference.

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The Role of Consensus in the ITU

WSIS was concerned that access to the Internet should be spread as far as possible. Then governments became aware that posts on the Internet and the information that it carried might not be what they would want disseminated. I here say nothing about Internet content. I simply note that for centuries governments have wished to control the information and the dis-information that is available to their citizens. The unhappy history of the UNESCO dispute of the 1980-90s is a clear example.22 Six months ago the Final Acts of the December 2012 World Conference on International Communications, WCIT-12, were not accepted by a number of members of the ITU who also happen to be major players in the working of the Internet.23 Their reservations as to the possible future of Internet governance led them to decline to sign the Final Acts.24 They seem to prefer the current system, such as it is. Whether that is right or not, what happened in WCIT-12 is an example where consensus has failed. 3. General Finally when considering the role of consensus in the ITU I must point to the variety of avenues through which consensus on particular telecommunications matters may be fostered. Many of these reside within the Sectors. Thus various policy forums are convened for discussion and debate. In May 2013 the fifth World Telecommunications/ ICT Policy Forum was held in Geneva.25 It was overlaid or book-ended by another WSIS Forum in which the WSIS effort continues.26 Then there are the various workshops, seminars

22 Lyall and Larsen, above, fn. 4, 258-69; Lyall, above, fn. 15, 3-4. 23 Final Acts of the World Conference on International Communications (Dubai, December 2012) (WCIT-12) (Geneva: ITU, 2012). 24 RESOLUTION PLEN/3 (DUBAI, 2012): ‚To foster an enabling environment for the greater growth of the Internet’ would have carried forward the internationalization of Internet governance expressed within WSIS, with the result that government controls over the Internet would have increased. Cf. Reservations: Sweden, No. 33; Cuba, No. 34; Russia, No. 37; Costa Rica, No. 80. See also the US statement of 13 December 2012, U.S. Intervention at the World Conference on International Telecommunications, http://translations.state.gov/st/english/texttrans/2012/12/201 21214139976.html#axzz2SpceHXRK. 25 World Telecommunications/ICT Policy Forum (WTPF-13), 14-16 May 2013. 26 WSIS Forum 2013, 13-17 May 2013.

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and symposia, including such as the Global Symposium for Regulators, held in Prague in July 2013. In these meetings, and in the coffee-shops, restaurants and bars surrounding their locations, common views as to future progress can be developed, leading to consensus as to the solving of a myriad of problems. 4. Conclusion So, to conclude. Within the ITU there are many examples where consensus has been effective, and perhaps even beneficial. There are others where it has not worked its magic. Nonetheless, given the constraints of the Laws of Physics, it seems wise that, wherever possible within this venerable institution, consensus should be sought as the premier method through which we can all partake of the benefits of international telecommunications. Bibliography F. Lyall, International Communications: The International Telecommunication Union and the Universal Postal Union (Farnham UK: Ashgate, 2011). Dispute Resolution in the Telecommunications Sector: Current Practices and Future Directions (Geneva: ITU, 2004): www.itu.int/ITU-D/treg/publications/ITU_WB_Disp ute_Res-E.pdf. L.B. Sohn, Introduction: United Nations Decision-Making: Confrontation or Consensus? (1974) 15 Harv. J. Int. L. 438-445. B. Busan, ‘Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea’, (1981) 75 AJIL 324-348. C.W. Jenks, Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organizations, in Cambridge Essays in International Law: Essays in Honour of Lord McNair, (London: Stevens, 1965), 48-63. E. Galloway, Consensus Decision-making by the United Nations Committee on the Peaceful Uses of Outer Space, (1979) 7 J. Sp. L. 3-13.

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Dispute Resolution before the ITU: The Operator’s Experience Gerry Oberst*

Abstract Satellite operators frequently face disputes under the rules of the International Telecommunication Union (ITU). Nevertheless, ITU dispute resolution powers are limited. Moreover, some ITU interpretations of its rules are inconsistent with established industry practice. This inconsistency with industry practice can create confusion and the potential for real economic loss in circumstances where a true dispute exists and consensus cannot be reached. At the end of the day, administrations and satellite operators that find themselves in a “disagreement” or “dispute” concerning ITU rules do not have a clear path to resolution based on the rule of law. As radio spectrum becomes increasingly congested and scarce globally, the number of instances where it is simply not possible to resolve the conflicting claims of administrations will inevitably increase, and the corresponding need for an accessible, fair and transparent dispute resolution mechanism, well-suited to ITU matters, should become increasingly apparent to all parties concerned. 1. Introduction Satellite operators face numerous dispute resolution situations. Operators routinely face commercial situations and contract disputes involving litigation or arbitration. However, these disputes often do not involve issues of space law and thus are not a primary focus of this paper. By contrast, oper-

* Gerry Oberst is Senior Vice President, responsible for Global Regulatory and Governmental Strategy for the international satellite operator SES. The views expressed in this paper are based on the author’s experience with numerous operators which he advised as a lawyer in private practice prior to joining SES and are not necessarily the views of SES. The author thanks his SES colleagues for their input and comments on this paper. All internet references were accessed during May 2013.

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ators do not routinely face international law disputes governed by international public law, i.e., the dispute resolution mechanisms built into the 1967 Outer Space Treaty (OST) and related treaties. Nor has there been any experience yet with the new space protocol under the Permanent Court of Arbitration in The Hague. So while these types of dispute might be of keen interest, they are not something on which an operator typically (or yet) has strong views. However, satellite operators frequently face a third category of dispute which is neither commercial litigation nor related to space law per se. This category involves disputes under the rules of the International Telecommunication Union (ITU), which is the focus of this paper. ITU rules govern the registration in the Master International Frequency Registry (MIFR) of ITU member state claims to the use of radio spectrum at specified orbital locations and the corresponding international recognition and protections granted to member states on the basis of that registration. There are several distinct areas of potential dispute which may arise under the ITU rules. Moving from the specific to the general, in the order that an operator might typically encounter them, they include: • Reaching Coordination Agreements • Resolution of disputes before the ITU’s Radio Regulations Board • Resolution of disputes under the ITU Basic Texts I address each of these matters individually below. I focus initially on the more quotidian aspects of ITU dispute resolution, those that affect operators most commonly. In doing so I also seek to identify areas where there might be questions about whether ITU dogma matches ITU reality. 2. Dispute Resolution Related to Coordination Agreements 2.1 Introduction to coordination agreements A routine element of registering a new or replacement satellite with the ITU is the requirement to undertake coordination to avoid harmful interference with the facilities of other administrations whose satellites are either already in space or otherwise hold a “priority” under ITU rules. Generally speaking,

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these priorities are established by date of filing, i.e., “first-come, firstserved.”1 It has become an established and accepted practice in the satellite field that an administration which holds such a priority has the upper hand in any resulting coordination negotiations. Those negotiations often result in adjustments to the technical characteristics of a satellite, such as power, coverage pattern or other matters, in order to ensure that harmful interference to another satellite is avoided. Typically, the operator lacking priority is the one making adjustments and compromises, which are then reflected in its filing with the ITU. Despite this well-understood practice among satellite operators, the ITU steadfastly maintains that the priority clearly accorded by its rules is not intended to and does not, in fact, confer any advantage to the administration holding the priority. Although this position is arguably consistent with the general “consensus-based” foundations of the ITU organization as a whole, the inconsistency with industry practice can create confusion and the potential for real economic loss in circumstances where a true dispute exists and consensus cannot be reached. The following section describes the ITU position in more detail and then examines whether that position reflects reality. 2.2 ITU position on priority in the negotiation of coordination agreements A recent controversy at the ITU between Iran, France and Saudi Arabia – which is not yet resolved – well illustrates the mismatch between theory and practice with respect to coordination priorities. The controversy is marvelously complicated, but essentially Iran and France disagree over which administration has the right to operate a satellite at a particular orbital position. When asked by the Radiocommunication Bureau (BR) for direction and clarification of the issues involved, the Radio Regulations Board (RRB or the Board) confirmed the validity of the Iranian filing, which has date

1 There are numerous rules that establish these priorities and some satellite services or orbital positions are allotted in ways that grant priorities in advance to particular administrations. These important nuances are not pertinent to this discussion and are well beyond the scope of this paper.

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priority over the French filing.2 The RRB also stated that Iran must nonetheless coordinate with France, despite Iran having clear priority. Perhaps not surprisingly, the parties have continued to decline to recognize that either has an obligation to defer to the other, and the dispute remained unresolved as of the end of 2013. In its decision, the RRB referred to particular provisions of the ITU Radio Regulations (RR) and the Rules of Procedure for those RR (the ROP): “The Board carefully considered the request of the Radiocommunication Bureau (BR) (Document RRB10-3/1) for clarification of the regulatory status of entries in the [MIFR] concerning the Iranian satellite network ZOHREH-2 and [associated information,] and came to the following decisions: ... 3) Recognizing that there are operational satellites around 26ºE and that coordination is a two way process and that in the application of Article 9, no administration obtains any particular priority as a result of being the first to start either the advance publication phase or the request for coordination procedure (see the Rule of Procedure on RR No. 9.6), the Board urges the Administrations of Iran, France and Saudi Arabia to continue coordination discussions with the utmost goodwill and mutual respect and in the spirit of Resolution 2 (Rev.WRC-03) in order to come to a satisfactory agreement that would enable the operation of networks in the vicinity of 26ºE, thereby avoiding mutual harmful interference and ensuring efficient utilization of the radio frequency spectrum and geostationary orbit. The Board further instructed the Bureau to assist the administrations in exploring all possible means in reaching a coordination agreement."3

To fully understand this response, it is also necessary to review the relevant RR Articles and the Rule of Procedure for Article 9.6. Following is a somewhat lengthy excerpt from the pertinent RR article, which culminates most importantly in Articles 9.52 and 9.53, calling for a mutual effort to effect coordination: 9.6 Before an administration notifies to the Bureau or brings into use a frequency assignment in any of the cases listed below, it shall effect coordination, as required, with other administrations identified under No. 9.27: (WRC-03) [list of cases deleted]

2 The BR is the administrative arm of the ITU responsible for spectrum matters. The RRB is an elected body of experts with authority to interpret the ITU rules. On the latter, see generally G. Oberst, “A Closer Look at the ITU Radio Regulations Board,” Via Satellite (February 2011). 3 Minutes of the 55th RRB Meeting (29 November – 3 December 2010), Revision 1 to Document RRB10-3/7-E, 29 March 2011, No. 4.47.

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... 9.50 An administration having received a request for coordination under Nos. 9.7 to 9.21, or having been included in the procedure following action under No. 9.41, shall promptly examine the matter with regard to interference which may be caused to or, in certain cases, by its own assignments, identified in accordance with Appendix 5. 9.51 Following its action under No. 9.50, the administration with which coordination was sought under Nos. 9.7 to 9.7B shall, within four months of the date of publication of the BR IFIC under No. 9.38, either inform the requesting administration and the Bureau of its agreement or act under No. 9.52. (WRC-2000) 9.52 If an administration, following its action under No. 9.50, does not agree to the request for coordination, it shall, within four months of the date of publication of the BR IFIC under No. 9.38, or of the date of dispatch of the coordination data under No. 9.29, inform the requesting administration of its disagreement and shall provide information concerning its own assignments upon which that disagreement is based. It shall also make such suggestions as it is able to offer with a view to satisfactory resolution of the matter. [….] ... 9.53 Thereafter, the requesting and responding administrations shall make every possible mutual effort to overcome the difficulties, in a manner acceptable to the parties concerned. These rules are interpreted in the ITU Rules of Procedure, which are promulgated by the RRB and approved by the ITU administrations (member states). The ROP for Article 9.6 provides: 1. Based on an analysis of Articles 9 and 11 and Appendix 5, the Board agreed that as far as coordination requests […] are concerned: a) publication, under No. 9.38, of requests for coordination shall be made in the order of their date of receipt […]; b) the intent of Nos. 9.6 (9.7 to 9.21), 9.27 and Appendix 5 is to identify to which administrations a request for coordination is to be addressed, and not to state an order of priorities for rights to a particular orbital position; c) the coordination process is a two way process. This understanding was included in the Radio Regulations by WARC Orb-88 with the adoption of the former RR provision No. 1085A which was confirmed by WRC-97 in No. S9.53; 47

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d) in the application of Article 9 no administration obtains any particular priority as a result of being the first to start either the advance publication phase (Section I of Article 9) or the request for coordination procedure (Section II of Article 9). So here we have as clear a statement as one could imagine that the date of filings through the ITU filing system do not give “any particular priority” for the coordination process, which is a “two way process.” This position is supported by a contemporaneous assessment of the rules adopted in 1988.4 Unfortunately, this position does not seem to reflect current reality and is not especially helpful to administrations or satellite operators when a dispute arises. 2.3 Dispute resolution in the coordination process It has been the author’s experience that, regardless of ITU statements to the contrary, filing priorities inevitably shape the positions of the administrations and operators engaged in a coordination negotiation. In a non-public filing concerning a recent dispute, an eminent technical expert on ITU coordination rules noted that the RR and ROP provisions quoted above were “good words” that are not followed in the normal process of coordination agreements and associated disputes. Satellite operators plan business cases and often make substantial financial investments on the basis of detailed analyses of the relative ITU priorities of the radio spectrum resources they seek to develop. A fundamental presumption underlying these analyses is that the administration holding ITU priority (or which has launched a satellite on the basis of that priority) will have a superior position in any ensuing coordination negotiations. It has become necessary, simply as a practical planning matter, that stakeholders accept ITU date priority as conferring such a benefit, regardless of whether this presumption is fully supported in the ITU rules or RRB decisions. If stakeholders did not accept this presumption, the future development of orbital resources would carry significantly more risk, and therefore a significantly higher cost.

4 Smith, Milton L., International Regulation of Satellite Communication (Utrecht Studies in Air and Space Law 1990) at 158-59.

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This approach is well understood and respected by most national administrations. For example, when the FCC adopted the first-come, first-served processing framework for satellite applications, it made clear that it would continue to consider and honor ITU priority status.5 Pursuant to that policy, the FCC has regularly and consistently imposed conditions designed to protect ITU priority rights when it has acted on applications filed under the firstcome, first-served procedures. This same practical reality is recognized by the UK administration. In a 2005 Ofcom statement on “Procedures for Authorisation of Satellite Networks,” the regulator stated: Ofcom submits information concerning proposed satellite networks to the BR of the ITU and facilitates frequency coordination with satellite networks of other administrations. A key feature of the process is that the date of filing the coordination request determines the priority that is given in terms of coordination so that a filing with an earlier date takes precedence if there is a technical conflict. In other words, later applications have to adapt, for example by reducing coverage areas or power levels or moving to different frequencies, in order to avoid causing unacceptable interference to systems with an earlier date.6

Similarly, when examining the Galileo satellite radio-navigation system, the European Commission said “[t]he first country to file an application for a frequency has a priority claim on its use.”7 One could likely find analogous statements by other space-faring administrations; the major satellite operators would also confirm that this is the accepted practice. So already we see

5 Amendment of the [FCC’s] Space Station Licensing Rules and Policies, First Report and Order and Further Notice of Proposed Rulemaking, 18 FCC Rcd 10760 (2003) at No. 296. Subsequently in both the Star One C5 and Telstar 13 U.S. market access decisions, conditions were adopted requiring the applicant to protect other operators holding priority under the ITU rules. In Star One C5, the Satellite Division modified the conditions on the grant of U.S. market access to the Brazilian licensed Star One C5 spacecraft at 68° W.L. in order to protect the Andean Community’s higher priority network at 67° W.L. As the Satellite Division explained, the additional conditions were imposed to “address the situation in which, in the absence of a coordination agreement, a satellite network with higher ITU filing-date priority than Star One C5 goes into operation….” Similarly, in Telstar 13, the Satellite Division imposed conditions on the grant of U.S. market access for the Telstar 13 C-band payload at 121° W.L. in order to protect the Netherlands’ higher priority network at 120.8° W.L. 6 UK Ofcom, “statement on procedures for the management of filings and international coordination for satellite networks”, 4 February 2005, at http://stakeholders.ofcom. org.uk/binaries/consultations/satellite_networks/statement/satellite.pdf. 7 European Commission, “State of progress of the Galileo programme,” COM(2002) 518 final, 24 September 2002, page 31.

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a gap between stated theory and international practice for the resolution of disputes arising in coordination negotiations. Some might say that such negotiations are not really disputes, but are instead part of a structured discussion between administrations on how to avoid interference. Legally speaking, that is perhaps correct. But any negotiation process in which there is no agreement inevitably becomes a “dispute” in a real sense and eventually may require a mechanism leading to resolution. ITU procedures envision that the parties will seek the help of the BR in a coordination impasse, as provided in the following RR provision: 9.59 If there is disagreement between the administration seeking coordination and an administration with which coordination is sought concerning the level of acceptable interference, either may seek the assistance of the Bureau; in such a case, it shall provide the necessary information to enable the Bureau to endeavour to effect such coordination. Subsequent RR Article 9 provisions further lend the BR’s support to these efforts. These provisions, and those in RR Article 11 on Notification of a satellite network for entry into the MIFR, set up a complicated dance in which the operator may, at the end of the day, insist on its network being entered into the MIFR with a notation of those administrations with which the coordination was not possible. This provision, as modified by the most recent ITU World Radiocommunication Conference, WRC-12, is found in RR 11.41: 11.41After a notice is returned under No. 11.38, should the notifying administration resubmit the notice […] and insist upon its reconsideration, the Bureau shall enter the assignment in the Master Register with an indication of those administrations whose assignments were the basis of the unfavourable finding [….] If operation of the non-coordinated network leads to interference, another set of procedures come into play, starting with RR 11.42. If efforts to resolve the impasse fail, then an administration is called on to notify the BR “that all efforts to resolve the harmful interference have failed,” in which case the BR prepares a report to the RRB for its consideration and “any required action….” Thus, this end stage for “dispute resolution” in the coordination phase leads to the second sub-category noted above, consisting of resolution of disputes before the ITU’s RRB.

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3. The RRB’s Role in Dispute Resolution The RRB’s role is defined in Chapter II of the ITU Constitution, and specifically in Article 14. This article provides that the RRB approves Rules of Procedure, as noted above. The BR uses these RoP to apply the RR and register frequency assignments in the MIFR. If there is disagreement on their application, administrations can appeal decisions to the RRB under Article 10 of the ITU Convention. Under these provisions, administrations which get no satisfaction from the normal coordination process can take their complaint to the RRB. A typical recent complaint to the RRB involved an administration challenging whether another administration had actually placed a real satellite in orbit as it had claimed in ITU filings, i.e., whether the other administration had met the ITU rules relating to “bringing into use.”8 The earliest reported “bringing into use” controversy arose in the late 1990’s, and concerned whether Eutelsat had brought into use its EuropeSat satellite, which Luxembourg (on behalf of SES) contested. Over the course of several RRB meetings, the facts were examined and the RRB ultimately concluded that Eutelsat had not satisfied the rules.9 The RRB came to this decision with much hesitancy and was careful to stress in several instances that it had “not been involved in a dispute between countries.” Instead, it had “simply corrected its instructions to the [BR] in accordance with factual evidence.”10 The RRB insisted that resolution of the heated controversy was not legally and technically a dispute at all, because the matter was not brought under the specific provision of the ITU Constitution dealing with disputes (described below). Thus, at the RRB’s 15th

8 Amendments to the RR adopted at WRC-12 may have diminished such controversies in the future, because very precise rules for how long a satellite must be operated at a particular orbital location are now in place, as of 1 January 2013. Nevertheless, these controversies well illustrate the RRB dispute resolution process and remain fresh in memory. 9 The issue was debated by the RRB over a series of six meetings, from the 11th RRB meeting in January 1998 to a final coda at the 16th meeting in June 1999. For full disclosure, the author represented SES in this controversy. 10 Minutes of the 13th RRB Meeting (30 November – 8 December 1998), Document RRB98/150-E, 15 January 1999, No. 20.14 (statement of Mr. Struzak). See also No. 20.26 (the RRB chairman “stressed that the [RRB] was not dealing with a dispute between two administrations, nor with coordination difficulties when a request for coordination had been made”).

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meeting, the Chairman declared that the RRB “was not dealing with a dispute between Members. If such a dispute were to arise, it would be necessary to refer to the provisions of Article 56 of the Constitution which dealt with the settlement of disputes. From a legal point of view, Article 8 of Appendix 30 of the Radio Regulations did not constitute a dispute settlement procedure.”11 Although this exceedingly fine distinction is perhaps legally correct, it completely overlooks reality in finding that the matter had not been a “dispute” solely because of the form of the proceeding. Numerous administrations (in addition to France and Luxembourg) contested vigorously the factual and legal issues involved in the EuropeSat matter and certainly viewed the matter as a dispute. The ITU Constitution specifically says that the RRB is faced with a “continuing disagreement” then the administration involved may bring the matter to the next World Radiocommunication Conference (WRC).12 If there is any logic at all to defining a “disagreement” as not being a “dispute,” then theoretically one could accept that the RRB is not involved in dispute resolution. However, this rather narrow approach can have the effect of undermining the usefulness and credibility of the RRB in the eyes of administrations and satellite operators. The RRB also is the venue for complaints of harmful interference, once the claims have gone beyond the ability of the BR to convince administrations to respond. For example, the RRB has entertained conflicting claims for years of mutual interference between Cuba and the United States, and similar complaints that Italian broadcasters interfere with stations in neighboring countries, without any resolutions in sight.13 The Cuba–US matter commenced officially as early as May 2003; Italy’s neighbors have complained to the RRB about harmful interference since at least December 2005. Neither controversy has been resolved (or seems close to resolution). The French–Iranian dispute which is highlighted at the beginning of this paper is about as close to a dispute as one would ever care to get. The issue 11 Id. at No. 20.33. 12 ITU Constitution, Article 14(2)(a). 13 See, e.g., summary minutes of the 62nd RRB meeting, Document RRB13-1/7-E, 22 March 2013. The RRB “invited” Cuba and the USA “to continue to resolve the matter.” It also noted with regret that Italy had not responded to the letter the RRB asked the BR to write to it at the previous meeting. Noting that this latter development was of “serious concern,” the RRB instructed the BR “if appropriate, [to hold] meetings with the concerned authorities of all administrations involved.” Id. at Item No. 4.

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between the parties has now escalated to the point of accusations being made of intentional interference being caused to Eutelsat satellites, which is alleged to arise from Iranian and Syrian sources.14 Regardless, by the RRB analysis, this is not a “dispute.” If the attempts of the BR and RRB to reach a compromise in a particular set of circumstances are not successful, it is always open to the parties to bring the matter to the next WRC. This level of “dispute resolution” involves diplomatic rather than any strictly legal or regulatory considerations and is well beyond the scope of this paper. If we accept the RRB’s insistence that it is not in the dispute resolution game, and also acknowledge that the use of a WRC for dispute resolution is rarely timely and never predictable, we must then review the ITU provisions designed expressly for dispute resolution – rarely used and not in modern history – which are set forth in the ITU Constitution and Convention. 4. Dispute Resolution under the ITU Basic Texts The ITU Constitution contains explicit disputes resolution provisions in the following Article 56:15 CS ARTICLE 56 – Settlement of Disputes 1. Member States may settle their disputes on questions relating to the interpretation or application of this Constitution, of the Convention or of the Administrative Regulations by negotiation, through diplomatic channels, or according to procedures established by bilateral or multilateral treaties concluded between them for the settlement of international disputes, or by any other method mutually agreed upon. 2. If none of these methods of settlement is adopted, any Member State party to a dispute may have recourse to arbitration in accordance with the procedure defined in the Convention.

14 See Submission by France to RRB 62nd meeting (18–22 March 2013) “concerning cases of deliberate and harmful interference affecting the satellites operated by Eutelsat,” Document RRB13-1/4-E, 25 February 2013. 15 An earlier paper on ITU Dispute Resolution briefly describes some of these elements, which I seek to expand in this discussion. See R. Jakhu, “Dispute Resolution under the ITU Agreements,” undated c. 2010, pages 1-6, available at http://swfound.org/ media/48115/Jakhu-Dispute%20resolution%20under%20the%20ITU%20agreeme nts.pdf.

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3.

The Optional Protocol on the Compulsory Settlement of Disputes Relating to this Constitution, to the Convention, and to the Administrative Regulations shall be applicable as between Member States parties to that Protocol.

Notably this article contains no limits on the (presumably peaceful) means by which Member States might settle their differences. Nor is there any enforcement provision or ultimate declaration of rights under the Constitution. Article 56 refers to arbitration under the ITU Convention. The Convention in Article 41 contains a series of procedural rules for arbitration. At the outset, the article states that “[t]he party which appeals to arbitration shall initiate the arbitration procedure by transmitting to the other party to the dispute a notice of the submission of the dispute to arbitration.” Curiously, there is no provision that obliges the other party to participate in or comply with this arbitration request. Nor could there be such an obligation, unless the parties had chosen in the first place to be subject to arbitration, in which case this article adds only procedural rules (much less detailed than other traditional arbitration venues). The fact that Convention Article 41 cannot be mandatory is underscored by the ITU Optional Protocol on the Compulsory Settlement of Disputes. As that protocol states on its face that it is optional, it would be difficult to maintain that the Article 41 process could be required. When ITU Members amended the ITU Convention in 1992, they readopted this optional protocol.16 The preamble to the protocol expresses “the desire to resort to compulsory arbitration” with respect to disputes concerning interpretation or application of ITU rules, but the protocol is only compulsory to the extent that a Member State has signed up. Only two ratifications were necessary for the protocol to come into effect. That appears to have happened relatively quickly, and as of March 2013 more than 65 nations had ratified the protocol.17 Some of the traditional “space faring” nations are included in the list, such as Canada, Japan, The

16 The Optional Protocol was initially agreed at least as early as an ITU Convention in 1973. It is available at http://www.itu.int/net/about/basic-texts/optional-protocol.as px and also is set forth in the Appendix to this paper. 17 See The Netherlands Ministry of Foreign Affairs listing at http://www.minbuza.nl/ en/key-topics/treaties/search-the-treaty-database/1992/12/005954.html.

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Netherlands and United Kingdom. Many others are not, including notably China, France, Germany, Russia and the United States. As a result, this final section is not especially pertinent to a satellite operator because (a) the ITU procedures are uniquely aimed at Member States settling disputes18 and (b) they have rarely if ever been used, and not in recent history. The Optional Protocol has never been used; the voluntary arbitration procedures almost never – one 1982 article discussed arbitration procedures, stated they have never been used for resolving issues of harmful interference and identified only one notable case of arbitration under ITU procedures dating from 1935.19 It is thus difficult to present an operator’s perspective on dispute resolution tools designed for public international law but which are never used. 5. Conclusion This paper has focused on the operator’s viewpoint of dispute resolution with a focus on ITU proceedings. As can be seen from the examples and discussion above, ITU dispute resolution powers are limited. It is well-recognized that the ITU has no enforcement power20 and there appears to be limited appetite within the ITU at the moment to address change to the status quo. 18 Max Planck Encyclopedia of Public International Law,“Telecommunications, International Regulation,” last updated March 2009 (“Because of the intergovernmental focus of the dispute settlement procedure, the Optional Protocol is generally of little use for the relations with the ever growing number of private sector telecommunications services and equipment providers. For that reason, the World Summit on the Information Society in Geneva, December 2003, invited governments to encourage the ‘ongoing work in the area of effective dispute settlement systems, notably alternative dispute resolution, which can promote the settlement of disputes’ (World Summit on the Information Society, ‘Plan of Action’ [12 December 2003] para. 13 k)”). 19 D.C. Greg, “Capitalizing on National Self Interest: The Management of International Telecommunication conflict by the [ITU],” 45 Law & Contemp Probs, pages 37-52, at 50, note 75 (1982), available at http://scholarship.law.duke.edu. (The author notes that an ITU representative in the Space Law Workshop for which this paper was prepared confirmed that the Optional Protocol and voluntary procedures had not been used in his experience). 20 See Jakhu at pages 5-6 (“The ITU regulatory regime governing the use of international limited natural resources as well as the bilateral dispute settlement procedure were initiated in 1963 and have remained essentially unchanged since then. They are proving outdated and inadequate to meet the requirements of 21st century satellite

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At the end of the day, administrations and satellite operators that find themselves in a “disagreement” or “dispute” concerning ITU rules do not have any clear path to resolution based on the rule of law. As radio spectrum becomes increasingly congested and scarce globally, the number of instances where it is simply not possible to resolve the conflicting claims of administrations will inevitably increase, and the corresponding need for an accessible, fair and transparent dispute resolution mechanism, well-suited to ITU matters, should become increasingly apparent to all parties concerned. Appendix Optional Protocol on the Compulsory Settlement of Disputes Relating to the Constitution of the International Telecommunication Union, to the Convention of the International Telecommunication Union and to the Administrative Regulations At the time of signing the Constitution of the International Telecommunication Union and the Convention of the International Telecommunication Union (Geneva, 1992), the undersigned Plenipotentiaries have signed the present Optional Protocol on the Compulsory Settlement of Disputes. The Members of the Union, parties to this Optional Protocol, expressing the desire to resort to compulsory arbitration, so far as they are concerned, for the settlement of any disputes concerning the interpretation or application of the Constitution, the Convention or of the Administrative Regulations mentioned in Article 4 of the Constitution, have agreed upon the following provisions: ARTICLE 1 Unless one of the methods of settlement listed in Article 56 of the Constitution has been chosen by common agreement, disputes concerning the interpretation or application of the Constitution, the Convention or the Administrative Regulations mentioned in Article 4 of the Constitution shall, at the request of one of the parties to the dispute, be submitted for compulsory arbitration. The procedure to be followed is laid down in Article 41 of the Convention, paragraph 5 (No. 511) of which shall be amplified as follows: "5. Within three months from the date of receipt of the notification of the submission of the dispute to arbitration, each of the two parties to the

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dispute shall appoint an arbitrator. If one of the parties has not appointed an arbitrator within this time-limit, this appointment shall be made, at the request of the other party, by the Secretary-General who shall act in accordance with Nos. 509 and 510 of the Convention." ARTICLE 2 This Protocol shall be open to signature by Members at the same time as they sign the Constitution and the Convention. It shall be ratified, accepted or approved by any Signatory Member in accordance with its constitutional rules. It may be acceded to by any Members parties to the Constitution and the Convention and by any States which become Members of the Union. The instrument of ratification, acceptance, approval or accession shall be deposited with the Secretary-General. ARTICLE 3 This Protocol shall come into force for the Parties hereto, who have ratified, accepted, approved or acceded to it, on the same date as the Constitution and the Convention, provided that at least two instruments of ratification, acceptance, approval or accession in its respect have been deposited on that date. Otherwise, it shall come into force on the thirtieth day after the date on which the second instrument of ratification, acceptance, approval or accession is deposited. ARTICLE 4 This Protocol may be amended by the Parties hereto during a Plenipotentiary Conference of the Union. ARTICLE 5 Each Member party to this Protocol may denounce it by a notification addressed to the Secretary-General, such denunciation taking effect at the expiration of a period of one year from the date of receipt of its notification by the Secretary-General. ARTICLE 6 The Secretary-General shall notify all Members: a) of the signatures appended to this Protocol and of the deposit of each instrument of ratification, acceptance, approval or accession; b) of the date on which this Protocol shall have come into force;

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c) of the date of entry into force of any amendment; d) of the effective date of any denunciation. IN WITNESS WHEREOF, the respective Plenipotentiaries have signed this Protocol in each of the Arabic, Chinese, English, French, Russian and Spanish languages, in a single copy within which, in case of discrepancy, the French text shall prevail, and which shall remain deposited in the archives of the International Telecommunication Union, which shall forward a copy to each of the signatory countries. Bibliography D.C. Greg, Capitalizing on National Self Interest: The Management of International Telecommunication conflict by the [ITU], 45 Law & Contemp Probs (1982). Jens Hinricher, The Law-Making of [ITU] – Providing a New Source of International Law? ZaöRV (Heidelberg Journal of International Law) 64 (2004). R. Jakhu, Dispute Resolution under the ITU Agreements, undated c. 2010. G. Oberst, A Closer Look at the ITU Radio Regulations Board, Via Satellite, February 2011. Telecommunications, International Regulation, Max Planck Encyclopedia of Public International Law, last updated March 2009. M. L. Smith, International Regulation of Satellite Communication, Utrecht Studies in Air and Space Law 1990.

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Orbits and Frequencies: The Legal Context Tanja Masson-Zwaan*

Abstract This chapter addresses some of the legal themes and challenges relating to the use and management of the radio-frequency spectrum and the geostationary orbit in order to put the growing problem of harmful interference into a broader legal context. 1. Introduction The demand for radio spectrum and orbital slots has grown along with the number of space players. Consequently, harmful interference issues are growing as well and increasingly give rise to disputes. Although some degree of (technical) harmful interference cannot be avoided, it is worrying that cases of intentional harmful interference are emerging as well. The question is whether the current regulatory scheme is able to deal with such cases. The radio-frequency spectrum is a scarce natural resource. Hence it is of vital importance that this resource is managed in a fair and efficient manner. This management of the use of the radio-frequency spectrum and the geostationary orbit is the task of the International Telecommunication Union (ITU)1, the oldest specialized agency of the United Nations (UN). Today the ITU has 193 member states2, thus it is as 'international' as an international organization can be. In addition, it welcomes over 700 private-sector entities and academic institutions. But the ITU regime is not self-contained. International law itself is not fragmented and should be considered as a whole. As such, it is important to consider other legal regimes in addition to the ITU regime, like the UN space

* International Institute of Air and Space Law, Leiden University, The Netherlands, [email protected]. 1 See http://www.itu.int. 2 This includes all UN members except Palau, plus Vatican City.

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law treaties, setting out the principles governing the use of outer space, or human rights instruments, which for instance codify the right to seek, receive and impart information and provide protection against cultural indoctrination. To address the problem of harmful interference, and more specifically intentional harmful interference, it may be useful to resort to such other legal regimes, which may in fact be better suited to solve it than the ITU regime. In the following, the ITU regime and the space law regime will be discussed and some ingredients for a solution to the growing problem of (intentional) harmful interference will be suggested. 2. Harmful Interference and the ITU The ITU is mostly a technical organization, regulating the planning of satellite services and coordinating and registering those services so that they do not interfere with each other. The legal instruments of the ITU address harmful interference and formulate clear obligations for the member states to avoid such interference. A few of the relevant provisions are summarized here. The main aim of the organization as stated in Article 1 of the ITU Constitution3 includes maintaining and extending international cooperation among all Member States, for the improvement and rational use of telecommunications of all kinds. A general obligation of the Union is to promote the use of telecommunication services with the objective of facilitating peaceful relations, harmonizing the actions of Member States and promoting fruitful and constructive cooperation and partnership between Member States and Sector Members. It must allocate bands, allot radio frequencies and register assignments in order to avoid harmful interference between radio stations of different countries. In addition, it must coordinate efforts to eliminate harmful interference between radio stations of different countries. Article 44 of the Constitution provides that Member States must limit the number of frequencies and the spectrum used to the minimum essential, and must apply the latest technical advances. Further, Member States must bear in mind that radio frequencies and any associated orbits, including the geostationary-satellite orbit, are limited natural resources and that they must be

3 See for the basic texts of the ITU: http://www.itu.int/net/about/basic-texts/.

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used rationally, efficiently and economically, in conformity with the provisions of the Radio Regulations. Harmful interference is addressed in Article 45 of the Constitution. It provides that “all stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Member States or of recognized operating agencies, or of other duly authorized operating agencies which carry on a radio service, and which operate in accordance with the provisions of the Radio Regulations.” The term “harmful interference” is defined in the ITU Radio Regulations (Article 1) as “Interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with Radio Regulations.” And Article 15 of the Radio Regulations specifies that “all stations are forbidden to carry out unnecessary transmissions, or the transmissions of superfluous signals, or the transmission of false or misleading signals or the transmission of signals without identification”. Stations that cause harmful interference are obliged to immediately eliminate this harmful interference. The fact is that these provisions are geared to deal with cases of “technical” harmful interference but not with intentional harmful interference for political or economic reasons. The ITU as an international intergovernmental organisation can do little to enforce obligations under its rules vis-à-vis sovereign member states or to impose sanctions. Compliance with international law is mostly a matter of political goodwill of states. So far this has not led to problems, but the increasing occurrence of (intentional) harmful interference is putting the system to the test. The Radiocommunication Bureau (BR) and the Radio Regulations Board (RRB) have certain powers with regard to harmful interference. The BR (Article 12 of the Convention), which records and registers frequency assignments and keeps up to date the MIFR, assists in the resolution of cases of harmful interference at the request of one or more of the interested administrations, and where necessary makes investigations and prepares a report including draft recommendations to the administrations concerned for the RRB. The RRB (Article 14 of the Constitution and Article 10 of the Convention) addresses matters referred to it by the BR that cannot be resolved through application of the rules, considers reports of unresolved interference investigations carried out by the BR at the request of one or more administrations and formulates Recommendations. It also considers appeals 61

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against decisions made by the BR regarding frequency assignments. Both the BR and the RRB can only intervene if a state requires its service and that influences their efficiency in cases of intentional harmful interference. In case of disputes, for instance about harmful interference, the Constitution provides in Article 56 that member states may settle them by negotiation, through diplomatic channels, or according to procedures established by bilateral or multilateral treaties concluded between them for the settlement of international disputes, or by any other method mutually agreed upon. If none of these means is adopted, recourse may be had to arbitration, in accordance with Article 41 of the ITU Convention. The ITU basic instruments also include an Optional Protocol on the Compulsory Settlement of Disputes, which makes the abovementioned arbitration procedure compulsory. However, neither Article 41 nor the Optional Protocol has ever been used in practice. The latest World Radio Conference of 20124 achieved some results in improving the ITU’s capability to solve harmful interference. It reaffirmed that recent and repeated cases of intended harmful interference represent infringements and that member states under the jurisdiction of which the signals causing this harmful interference are transmitted have the obligation to take the necessary actions. The BR may also conclude Memoranda of Cooperation, such as with the International Monitoring System (IMS), a worldwide network of observational technology to help verify compliance with and detect and confirm violations of the Comprehensive Nuclear TestBan Treaty (CTBT)5, to measure harmful interference and to verify compliance of space stations with the characteristics recorded in the MIFR. 3. Harmful Interference and the UN Space Treaties As seen above, the use and management of the orbit/spectrum resource must be seen in the wider context of the legal principles governing the use of outer space as contained in the UN outer space treaties, especially the 1967 Outer Space Treaty. Since 1961, issues relating to the use of outer space have been dealt with through the United Nations Committee on the Peaceful Uses of Outer Space 4 See http://www.itu.int/net/newsroom/wrc/2012/. 5 See http://www.ctbto.org/verification-regime/background/overview-of-the-verificat ion-regime/.

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(COPUOS). The Scientific and Technical Subcommittee of COPUOS addresses related technical issues, whereas the Legal Subcommittee deals with legal matters. Five UN treaties were adopted between 1967 and 1979, which set the scene for the activities of man in outer space.6 Many of the provisions of the Outer Space Treaty are of direct or indirect relevance to the issue of harmful interference, and hence it is possible to rely on them to solve potential disputes in case the ITU rules and procedures are unable to do so. For instance, the first and most important principle of space law is contained in Article I of the Outer Space Treaty. It states that the exploration and use of outer space must be carried out for the benefit and in the interests of all countries and are the province of all mankind. Outer space is free for exploration and use without discrimination, on a basis of equality and in accordance with international law. The concepts are not clearly defined and can be subject to varying interpretations – but the general idea is clear: the use of space should somehow benefit mankind. The freedom to use space is of course not absolute, but subject to respect for the freedom of other users – including commercial satellite operators. The second-most important principle of space law is contained in Article II, which declares that outer space and celestial bodies cannot be subject to appropriation by any means. This means that there is no ‘territorial jurisdiction’ in outer space, unlike on Earth or in the airspace above the territory of a state. It is forbidden to claim ownership of any part of outer space, and this applies not only to states but also to private entities. Again, this principle can be relevant for the case of harmful interference, as it confirms that the right to use a certain orbit/frequency does not confer a right of ownership.

6 They are: (1) the “Treaty on principles governing the activities of states in the exploration and use of Outer Space, including the moon and other celestial bodies” of 1967 (Outer Space Treaty); (2) the “Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects launched into Outer Space” of 1968; (3) the “Convention on international liability for damage caused by space objects” of 1972; (4) the "Convention on Registration of Objects launched into Outer Space" of 1976; and (5) the “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies” of 1979. All texts, official titles and sources of the five UN space treaties can be consulted on the website of the Office for Outer Space Affairs in Vienna, the UN office supporting the work of the UN Committee on the Peaceful Uses of Outer Space (UN COPUOS). See http://www.oosa.unvienna.org, especially under ‘Space law’.

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Another important feature is that activities must be carried out in accordance with international law, including the UN Charter, in the interest of maintaining international peace and security and promoting international cooperation and understanding (Article III of the Outer Space Treaty). This includes Articles 2.4 and 51 of the UN Charter, prohibiting the threat or use of force on the one hand, and recognizing the individual and collective right of self-defense on the other. Furthermore, international cooperation is an obligation under the UN Charter, which ipso facto also applies to space activities. Again, this article could help to solve a case of harmful interference. The treaties also contain important rules concerning responsibility and liability (Articles VI and VII of the Outer Space Treaty, further elaborated in the Liability Convention). A state is internationally responsible for ‘national activities’ in space, and a launching state is liable for damage caused by its space object to another state or its natural or juridical persons, whether that damage occurs in space, in the air or on the ground. A very specific characteristic of space law is that it only has a system of state liability, i.e. a private entity or a natural person cannot present a claim based on the Treaty against another state directly under the Treaties, but must be represented by its state; nor can a private entity be held directly liable. A state could be held responsible for harmful interference under Article VI, and if damage occurs, it could be held liable for damage under Article VII. So far these articles have never been put to the test before an international tribunal, but it is not inconceivable that harmful interference could cause actual damage, giving rise to a claim under international law. Lastly, it is important to mention Article IX, the only article that mentions “harmful interference”. It provides that states must conduct their activities in outer space with due regard to the corresponding interests of other states parties. If a state believes that an activity planned by it, or its nationals, would cause potentially harmful interference with activities of other states, it must undertake international consultations before proceeding with it. And if a state party believes that an activity of another state could cause potentially harmful interference, it may request such consultation. Thus, if potentially harmful interference is expected, international consultations are required; however, such consultations are bilateral and focused on the actor, not on the affected state.

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4. Harmful Interference and Recent Initiatives It has been said that the ITU is no longer the ‘gentlemen’s club’ it used to be, but the problem is rather that harmful interference sometimes occurs with intent, often for political or economic reasons. The means available to the ITU to address non-avoidable technical harmful interference are of little use in such cases. In the current scenario of growing dependence on satellite communications and increasing needs by a multitude of players, this is a worrying scenario. It is virtually impossible to qualify or quantify interference objectively; only a few states have such capability, the ITU does not. The recent cooperation plans with existing monitoring systems are a positive development. Further measures to empower the ITU may, however, be needed. The law-making process for outer space activities has slowed down since the adoption of the Moon Agreement in 1979. Since then, UNCOPUOS has adopted non-binding sets of guidelines, for instance addressing the mitigation of space debris, the concept of the launching state or the issue of registration.7 This is not necessarily a bad thing. The current geopolitical climate is not propitious for the adoption of new treaties. States are not willing to give up more of their sovereignty. But other forms of law-making are emerging, and although some are of the view that only hard rules contained in treaties merit being called law, it should be recognised that these legal principles can find their way into national law, as is the case for instance in some countries for the debris mitigation guidelines. This in turn may lead to state practice. After time, non-binding guidelines and principles could become binding under customary international law. In this context, three different initiatives currently being developed are relevant to the topic of harmful interference. They can be considered as three

7 The “Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space” (2007, http://www.unoosa.org/pdf/bst/COPUOS_SPACE_DEBRIS_ MITIGATION_GUIDELINES.pdf), the Resolution on “Application of the concept of the "launching State" (A/RES/62/101 of 17/12/2007, “Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects”.

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pillars to increase the safety, security, and sustainability of space activities. 8 Firstly, UNCOPUOS added the Long-Term Sustainability of Outer Space Activities (LTSSA) as a new agenda item of its Scientific and Technical Sub-Committee (STSC) in 2010. A formal Working Group was created, and as part of its work four Expert Groups were set up, addressing different aspects of the sustainability issue and drawing up Guidelines. They deal with (a) Sustainable Space Utilization Supporting Sustainable Development on Earth, (b) Space Debris, Space Operations and Tools to Support Collaborative Space Situational Awareness, (c) Space Weather and (d) Regulatory Regimes and Guidance for Actors in the Space Arena.9 Expert Group D drafted a guideline to encourage and promote activities of non-governmental entities that will enhance LTSSA, as these can help increase awareness about compliance with ITU Radio Regulations related to space services, and development of open, transparent standards for exchange of data necessary to avoid radio-frequency interference. Furthermore the group recommends for future consideration: “Definitions, e.g. of ‘space activity’, because Earth-based activities, such as radio frequency interference, has significant potential to affect the sustainability of space-based activities. Therefore regulation of ‘space activities’ will need to encompass both Earth-based and outer-space-based activities if it is to be effective in ensuring the sustainability of outer space activities”.

The expected outcome of the Working Group is a set of “best practice” guidelines for space operations and recommendations to establish new data exchange mechanisms, both aimed at improving the safety of launch and inorbit operations, to be presented to the Scientific and Technical Subcommittee of UNCOPUOS in February 2014. Secondly, the Council of the European Union took an initiative in 2007 to propose an “International Code of Conduct” for Outer Space Activities, a first version of which was approved in December 2008. A new version was

8 See for a discussion of the three initiatives, Gérard Brachet, The Long Road to a Sustainable Use of Outer Space, September 2012, http://www.ruimtevaart-nvr.nl/m edia/vk_1223/Website/documenten/The_long_road_to_a_sustainable_use_of_Outer _Space-University_of_Leiden_11Sept2012.pdf. 9 See http://www.oosa.unvienna.org/pdf/reports/ac105/AC105_1041Rev 01E.pdf. See also a useful fact Sheet by the Secure World Foundation, http://swfound.org/media/ 84709/SWF%20-%20UNCOPUOS%20LTSSA%20Fact%20Sheet%20-%20June% 202012.pdf.

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circulated in 2010 and since then, two multilateral meetings have taken place, one in June 2012 in Vienna, and a second in Kiev in May 2013, with sixty states participating.10 Eventually a Conference of Adhesion may be held to finalize and sign this International Code of Conduct – but this might take a while. The Code is a political, dynamic document with an all-encompassing scope, covering both military and civil uses of outer space. The governing principles mention “the responsibility of states to take all appropriate measures and cooperate in good faith to prevent harmful interference”, as well as the compliance with and promotion of treaties, including the ITU Constitution, Convention, and Radio Regulations. Lastly, a Governmental Group of Experts (GGE) was set up by the United Nations in 2012 to conduct a study on outer space transparency and confidence measures (TCBMs), with a report due by the end of 2013.11 The GGE argues that timely and routine consultations through bilateral and multilateral diplomatic exchanges and other government-to-government mechanisms can inter alia be useful in preventing or minimizing potential risks of physical damage or harmful interference, and recommends States to consider using existing consultative mechanisms, for example as provided for in Article IX of the Outer Space Treaty and the relevant provisions of the ITU Constitution and the Radio Regulations. 5. Conclusion Today’s world is confronted with problems that were not conceived at the time when the regulatory framework for the management of the radio-frequency spectrum and satellite orbits was created. The rules and procedures of the ITU are not well suited to deal with modern-day issues such as (intentional) harmful interference. There may be ways to enhance the efficiency of the organization, but there might be a limit to what can be achieved because the issues are more political and economic in nature, rather than technical. In the current context of multiple actors and increasing demand for a scarce natural resource, regulation and settlement of disputes must be seen in a wider context of international law, encompassing space law and other 10 See http://eeas.europa.eu/non-proliferation-and-disarmament/outer-space-activities /index_en.htm. 11 See http://www.un.org/disarmament/topics/outerspace/.

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fields of law. The UN outer space treaties may provide the legal basis for solving cases of harmful interference. Solutions may also be found in nonlegally binding instruments such as Guidelines or Codes of Conduct that address the safe, secure and sustainable use of outer space in a comprehensive manner, with due regard for the long-established rules and instruments of the ITU. If successful, these instruments can support existing legal instruments and mechanisms to maintain the use of outer space in a safe, secure and sustainable manner. Some synergy between the current initiatives will hopefully emerge to provide a basis for solving harmful interference, which is at the core of future successful use and exploration of space for the benefit of all countries. The challenge will be to book progress in a consistent manner. In that context it is worth mentioning that a new “single item/issue for discussion” was adopted by the UN COPUOS Legal Subcommittee, named “General exchange of information on non-legally binding United Nations instruments on outer space”.12 If all else fails, it may be necessary for parties to a dispute to have recourse to alternative means of dispute resolution, and the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, adopted in 2011 by the Permanent Court of Arbitration (PCA), may well be an interesting option in that regard.13 Bibliography Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (2007, http://www.unoosa.org/pdf/bst/COPUOS_SPACE_DEBRIS_MITIG ATION_GUIDELINES.pdf. Gérard Brachet, The Long Road to a Sustainable Use of Outer Space, September 2012, http://www.ruimtevaart-nvr.nl/media/vk_1223/Website/documenten/The_long_road _to_a_sustainable_use_of_Outer_Space-University_of_Leiden_11Sept2012.pdf. Fact Sheet by the Secure World Foundation, http://swfound.org/media/84709/SWF%2 0-%20UNCOPUOS%20LTSSA%20Fact%20Sheet%20-%20June%202012.pdf.

12 See http://www.oosa.unvienna.org/pdf/limited/l/AC105_2013_CRP06E.pdf. See a lso http://www.oosa.unvienna.org/pdf/gadocs/A_68_20E.pdf, para. 251. 13 See http://www.pca-cpa.org/showpage.asp?pag_id=1188.

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From Negotiations to Dispute Settlement: The Role of the World Trade Organization (WTO) in relation to Satellite Communications Peter Malanczuk*

Abstract Considering the broad range of areas covered by the legal regime of the World Trade Organization (WTO), it is obvious that – at least potentially – many of the trade rules laid down in specific WTO agreements (e.g. concerning trade in goods, services or trade-related aspects of intellectual property rights) could be relevant for the cross-border activities of satellite communications operators and service providers. This is true not only for negotiating substantive rules affecting satellite communications, but also for the important role of the WTO for the inter-governmental settlement of international trade disputes concerning the interpretation and application of these substantive trade rules. This paper focuses on selected areas that seem to be of particular interest in view of existing practice relevant to satellite communications. It provides some general background on the WTO, the WTO agreements and the WTO dispute settlement system. The paper then addresses the regulation of satellite communications in the Telecommunications Annex of the General Agreement on Services (GATS) and looks at any relevant case-law. It further deals with the Government Procurement Agreement (GPA) and a case between the EU and Japan concerning the purchase of a navigation satellite. Finally, the paper offers some conclusions, taking into account the current status of the global trade negotiations on services and expectations articulated by the U.S. and European satellite industry associations in this connection.

* Dr. jur., C.V. Starr Professor of Law, Peking University of Transnational Law; International Arbitrator, Panels of HKIAC, CIETAC, BAC, GZAC, CAA Taipei, KLRCA.

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1. Introduction Considering the broad range of areas covered by the legal regime of the World Trade Organization (WTO), it is obvious that – at least potentially – many of the trade rules laid down in specific WTO agreements (e.g. concerning trade in goods, services or trade-related aspects of intellectual property rights) could be relevant for the cross-border activities of satellite communications operators and service providers.1 This is true not only for negotiating substantive rules affecting satellite communications, but also for the important role of the WTO for the inter-governmental settlement of international trade disputes concerning the interpretation and application of these substantive trade rules. Within the limited scope of this paper, it appears to be advisable to focus on selected areas that seem to be of particular interest in view of existing practice relevant to satellite communications. The following will first provide some general background on the WTO, the WTO agreements and the WTO dispute settlement system (2.). The paper will then address the regulation of satellite communications in the Telecommunications Annex of the General Agreement on Services (GATS) and look at any relevant case-law (3.). The next part deals with the Government Procurement Agreement (GPA) and a case between the EU and Japan concerning the purchase of a navigation satellite (4.). Finally, the paper offers some conclusions, taking into account the current status of the global trade negotiations on services and expectations articulated by the U.S. and European satellite industry associations in this connection (5.).

1 P. Malanczuk, ‘The Relevance of International Economic Law and the World Trade Organization (WTO) for Commercial Outer Space Activities’, Proceedings of the 3rd ECSL Colloquium on International Organisations and Space Law, Perugia, 6-7 May 1999, Paris, European Space Agency – ESA SP-442, June 1999, pp. 305-316. See further J.N. Pelton, Satellite Communications, Berlin, Springer-Verlag, 2012. For an update on the commercial satellite market see A. Edgecliffe-Johnson, ‘Rising demands push industry to new heights’, Financial Times, 30 November 2012.

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2. Some General Background on the WTO 2.1 History and structure The WTO was established in 1995 as a global international organization for liberalizing international trade and reducing trade barriers.2 It replaced the General Agreement on Tariffs and Trade (GATT) that had been created in 1947 as part of the failed effort to set up an International Trade Organization to complement the Bretton Woods system after World War II. While the GATT operated only on a provisional basis for more than four decades and did not enjoy any international legal personality, the WTO is a fully-fledged international organization with its seat in Geneva. The WTO Secretariat has a staff of about 630 drawn from 70 nations, headed by the Director-General. The budget of the WTO for 2012 was about US$200,000,000, which is a relatively small sum for an international organization concerned with world trade regulation. The highest decision-making body of the WTO is the Ministerial Conference which normally meets every two years on the level of trade ministers. The governing body between Ministerial Conferences is the WTO General Council which comprises all WTO members and meets in Geneva at the level of ambassadors. Most decisions are taken by consensus, although there are exceptions for important matters like amendments to the WTO Agreement. The main tasks of the WTO are to provide an international forum for negotiating trade agreements; to implement a complex system of international trade rules laid down in the WTO agreements; and to facilitate the inter-governmental settlement of trade disputes in accordance with the WTO Dispute Settlement Understanding (DSU). In addition, the WTO has some secondary tasks, such as monitoring national trade policies; offering technical assistance and training for developing countries; and cooperating with

2 See generally J.H. Jackson and S. Charnovitz, The Structure and Function of the World Trade Organization, Farnham, Ashgate, 2012; A. Narlikar, M. Daunton and R.M. Stern (eds.), The Oxford Handbook on the World Trade Organization, Oxford, Oxford University Press, 2012; B. Egelund Olsen, M. Steinicke, and K.E. Sørensen (eds.), WTO Law: From a European Perspective, Alphen aan den Rijn, Kluwer Law International, 2012; WTO, WTO Analytical Index: Guide to WTO Law and Practice, 3 rd ed., Cambridge, U.K., Cambridge University Press, 2012; M. Matsushita, T.J. Schoenbaum and P.C. Mavroidis, The World Trade Organization: Law, Practice, and Policy, 2nd ed., Oxford, Oxford University Press, 2006.

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other international organizations, such as, for example, the International Monetary Fund (IMF). As of 2 March 2013, the WTO had 159 members and 25 observer governments which are generally obliged to commence with negotiating accession to the WTO within 5 years.3 Members are countries (sovereign states) or non-sovereign customs territories with full autonomy in the conduct of their external economic relations, such as Hong Kong, Macau and Taiwan ("Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei)"), which are WTO members in addition to the People’s Republic of China (PRC) itself.4 Russia was the last major economy to join the WTO in 2012 after long years of accession negotiations. There are now only a few states and territories that have not applied for observer status.5 2.2 The WTO agreements In a number of trade negotiation rounds after 1947 the GATT focused first on the reduction of custom tariffs as barriers to trade and then turned to the elimination of non-tariff barriers like technical standards and other issues. The establishment of the WTO was prepared by the long Uruguay Round which lasted from 1986 to 1994.6 The complex agenda originally covered 15 subjects, including tariffs; non-tariff barriers; natural resource products; textiles and clothing; agriculture; tropical products; GATT articles; Tokyo Round codes; anti-dumping; subsidies; intellectual property rights; investment measures; dispute settlement; and services. While the GATT only dealt with trade in goods (tangible items), the WTO has incorporated important new additional areas such as trade in services and trade-related issues of intellectual property rights. The conclusion of the WTO Agreement in 1994 was a landmark in the development of international trade law. The Agreement was supplemented by a number of special annexes. Annex 1A deals with multilateral agree3 An exception is made for the Vatican. 4 See C.H. Wu, ‘A New Landscape in the WTO: Economic Integration among China, Taiwan, Hong Kong and Macau’, European Yearbook of International Economic Law, 2012. 5 Somalia, North Korea, Turkmenistan, Greenland, and French Guiana. 6 E.H. Preeg, ‘The Uruguay Round Negotiations and the Creation of the WTO’, in: A. Narlikar, M. Daunton and R.M. Stern (eds.), The Oxford Handbook on the World Trade Organization, Oxford, Oxford University Press, 2012, pp. 122-137.

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ments on trade in goods,7 such as the GATT (now named GATT 1994 to distinguish it from the old GATT 1947), some agreed “Understandings” on the interpretation of certain GATT articles, and further separate Agreements, for example, on Agriculture; Sanitary and Phytosanitary Measures; Textiles and Clothing; Technical Barriers to Trade; Trade-Related Investment Measures (TRIMS); Preshipment Inspection; Rules of Origin; Import Licensing Procedures; Subsidies and Countervailing Measures; and Safeguards. Annex 1B contains the new General Agreement on Trade in Services (GATS) and Annex 1C lays out the very demanding new rules under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). There are three more annexes. Annex 2 incorporates the important new Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). Annex 3 lays out the Trade Policy Review Mechanism. Finally, Annex 4 is dedicated to Plurilateral Trade Agreements. The latter are exceptions from the basic WTO principle of the “Single Undertaking”, meaning that all WTO members must accept all multilateral agreements under the WTO umbrella, including the Dispute Settlement Understanding (DSU) and they cannot, as under the old GATT, pick and choose the agreements they wish to join as if ordering from a restaurant menu. In other words, the group of signatories of such type of agreements is smaller than the total WTO number of members. Originally, in 1994 there were four such plurilateral agreements left over from the GATT Tokyo Round agreements, relating to (1) trade in civil aircraft; (2) government procurement; (3) dairy products; and (4) bovine meat. The last two agreements were terminated in 1997, so now there are only two agreements left as WTO “plurilaterals”.

7 See P.C. Mavroidis, Trade in Goods: The GATT and the other WTO Agreements Regulating Trade in Goods, 2nd ed., Oxford, Oxford University Press, 2012.

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2.3 The WTO dispute settlement system The WTO dispute settlement system is the most significant innovation that the WTO Agreement has introduced.8 It is a “rule-based” procedure that has abolished the possibility of unilateral trade sanctions that were frequently adopted by stronger states under the GATT system in response to alleged violations of trade rules by other nations. Sanctions must now be authorized by the WTO Dispute Settlement Body (DSB) which is composed of all members of the General Council who meet as the DSB, again at the ambassador level. The WTO dispute settlement system starts with negotiations between the disputing parties (“consultation phase”), which may be assisted by the WTO Director-General acting as a mediator. If negotiations fail, the dispute will be submitted to a panel which adopts a report. The report is either submitted as a recommendation to the DSB for consideration of adoption, or there is the possibility of an appeal by one party to the WTO Appellate Body against the panel report on points of law.9 The report of the Appellate Body will be submitted to the DSB as a recommendation for consideration of being adopted. After the report is adopted by the DSB, it becomes binding, and the process moves on to the authorization of retaliation, as it may appear necessary. It is important to note that in these WTO dispute settlement procedures the so-called “negative consensus principle” applies (and it appears nowhere else in WTO decision-making). It is sometimes also called the “reverse consensus principle”. It means that when the DSB establishes a panel, when it adopts panel reports and Appellate Body reports, and when it authorizes retaliation, the DSB has to approve the decisions unless there is a consensus

8 See M. Martin, WTO Dispute Settlement Understanding and Development, Leiden, Nijhoff, 2013; J.J. Grimmett, Dispute Settlement in the World Trade Organization (WTO): An Overview, New York, NY, Nova, 2012; M. Matsushita, ‘The Dispute Settlement Mechanism at the WTO: the Appellate Body – Assessment and Problems’, in: A. Narlikar, M. Daunton and R.M. Stern (eds.), The Oxford Handbook on the World Trade Organization, Oxford, Oxford University Press, 2012, pp. 507-534; G. Shaffer and J. Trachtman, ‘WTO Judicial Interpretation’, ibid., pp. 535-559. For the relevant documents see WTO, The WTO Dispute Settlement Procedures: A Collection of the Relevant Legal Texts, 3rd ed., Cambridge, U.K., Cambridge University Press, 2012. 9 The Appellate Body consists of seven members appointed by the DSB for terms of four years, with the possibility of one reappointment. Appeals are heard by a division of three members.

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(of all members) against it. In fact, this implies that a single member can always prevent the negative consensus. It just needs to insist that the decision should be approved and thus can easily avoid the blocking of the decision. The winning party can normally be counted upon to ensure that this works and therefore the decision-making of the DSB under the negative consensus principle is quasi-automatic in reality. A negative consensus is only a vague theoretical possibility. It has never happened. This is quite distinct from the situation under the old GATT dispute settlement system, where the “positive consensus principle” was dominant: a consensus of all GATT members was required in order to establish panels, have the panel reports adopted and retaliation measures authorized.10 Generally speaking, most WTO members believe that the WTO dispute settlement system is working in a satisfactory manner, although there are a number of specific reform proposals. Indeed, the large number of disputes handled by the system since 1995 shows its successful operation. As of the end of 2012, there were a total of 454 complaints filed under the DSU.11 They fall into a total of 334 different “matters”. Most of these disputes were settled through negotiations. The total number of panel reports circulated until the end of 2012 reached 150. About two-thirds of these panel reports were appealed and led to a report of the Appellate Body (101).The US and the EU are the heaviest users of the system.12 It is true that rich countries remain the primary users, but the number of complaints brought by poorer countries is growing. While these WTO case statistics are impressive compared with the much lighter workload of most other international courts and tribunals,13 it may be noted that the number of cases dealt with by ad hoc investment arbitration tribunals under bilateral investment treaties, the NAFTA or the Energy Charter Treaty, mostly using either ICSID or the UNCITRAL arbitration rules, are quite competitive. By the end of 2012 there were 514 known treaty-

10 Still most GATT panel decisions were complied with in practice. But the point is that a complaining Party often did not really push its case knowing that it could simply be blocked by the other Party. 11 K. Leitner and S. Lester, “WTO Dispute Settlement 1995-2012 – A Statistical Analysis’, Journal of International Economic Law, vol.16, no. 1, 2013, pp. 257-267. 12 190 complaints have involved either the US or the EU as complaining party (almost 42% of cases). The picture is almost the same as regards their involvement as a respondent. 13 The European Court of Human Rights with the vast increase of its case-load, with many complaints especially brought against Russia, is a special situation.

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based investor-state arbitration cases14 and the overall number of concluded cases was 244.15 Since the adoption of the originally ambitious Doha Round negotiating agenda of the WTO in 2001, there has been virtually no progress in further agreements on trade liberalization due to lack of consensus between developed countries and developing countries, as well as – increasingly – among emerging economies themselves. Many observers fear that the WTO is in danger of becoming obsolete as a meaningful global multilateral negotiating framework for international trade. Investment is still to a large degree outside of the scope of the WTO legal framework (important exceptions include the mode of delivering cross-border services through “commercial presence” under the GATS and some protection offered under the TRIPS agreement for intellectual property).16 States have more and more moved on to conclude numerous separate bilateral investment promotion and protection agreements and sophisticated regional trade agreements including investment chapters. 3. Satellite Communications and the Telecommunications Annex of the General Agreement on Services (GATS) 3.1 The GATS framework The role of services in the economy of a number of countries and in world trade has grown enormously in the past decades. This phenomenon is partly a result of the information and communications technology revolution. The GATS is an important response to this factual development in terms of multilateral trade rules.17 The GATS is comprehensive. It covers all kinds of

14 The total real number is probably much higher, but most venues do not have a public registry like ICSID. So it is difficult to know. 15 UNCTAD, Recent Developments in Investor-State Dispute Settlement, May 2013. 16 See M. Molinuevo, Protecting Investment in Services: Investor-State Arbitration versus WTO Dispute Settlement, Alphen aan den Rijn, Kluwer Law International, 2012. 17 R. Adlung, ‘Trade in Services in the WTO: From Marrakesh (1994), to Doha (2001), to... (?)’, in: A. Narlikar, M. Daunton and R.M. Stern (eds.), The Oxford Handbook on the World Trade Organization, Oxford, Oxford University Press, 2012, pp. 370-393; B.M. Hoekman, The WTO and Trade in Services, vols. I and II, Cheltenham, Elgar, 2012.

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services that are internationally traded, such as banking, telecommunications (including satellite communications), tourism or professional services. There are four principal ways that services can be traded internationally: (1) “cross-border supply”, e.g. services supplied from one country to another, like international telephone calls or satellite communications; (2) “consumption abroad”, e.g. consumers, users, or companies visiting a foreign country to benefit from a service, like tourism; (3) “commercial presence”, e.g. a foreign company setting up subsidiaries, branches or affiliates in another country to provide services in that host country, which is technically an investment; and (4) “presence of natural persons”, e.g. individual service providers travelling from their home country to a foreign country to offer their services there, like fashion models or consultants, or medical doctors to provide treatment. Moreover, there are also a number of basic GATS principles that need to be borne in mind before proceeding to the specific issue of satellite communications. Generally, GATS intends to cover a wide range of services with few exceptions such as air transport services. The two central GATS principles are most-favoured-nation (MFN) treatment and national treatment. The MFN principle applies to all services, except for one-off temporary exceptions. It means treating all trading partners equally on the basis of non-discrimination. If a WTO member gives another WTO member market access to a certain services sector of its economy, services providers from all other WTO members are automatically entitled to claim the same kind of treatment. The national treatment principle applies in those areas where WTO members have agreed to make commitments to open markets in specific sectors based on negotiations. National treatment normally just means that the same regulations will be applied to foreign service providers as to nationals.18 But the actual commitments made are essential in this regard. These national commitments are laid down in “schedules” which identify which sectors are being liberalized, whether there are any restrictions on foreign ownership, and whether there are any limitations on national treatment. For example, there may be an explicit reservation that certain rights granted to national service providers will not be extended to foreign providers. Thus, market-

18 See generally: T. Parcero Herrera, ‘National Treatment in WTO Litigation’, in: J.A. Huerta-Goldman, A. Romanetti and F.X. Stirnimann (eds.), WTO Litigation, Investment Arbitration and Commercial Arbitration, Alpgen aan den Rijn, Kluwer Law International, 2012, pp. 223-238.

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access commitments in such national schedules may be accompanied by market-access limitations. Once such commitments are listed in a schedule they are considered “bound”. Any modification requires negotiations with other WTO members whose interests are affected. This “unbinding” process is difficult to complete. Foreign traders and investors can therefore normally rely on the stability of the conditions stipulated in those commitments for the relevant sector. It is important to note that the GATS explicitly excludes “governmental services” (services that are not supplied in a commercial manner and do not compete with other service providers). There is no obligation “to privatize”. WTO members can therefore preserve publicly funded services in core areas of governmental responsibility and exempt them from the GATS regime. Governmental services are not subject to the obligation to negotiate and they are exempt from market access commitments and the principle of national treatment. As a result, it is left to the national discretion of a WTO member not to open a sector to foreign competition because it is viewed as a core state function or for other reasons deemed as important by that member. GATS commitments can be made on a selective basis. Other GATS obligations relate to transparency of regulations, the establishment of inquiry points, the need for regulations to be objective and reasonable, and to allow international payments in a normally unrestricted manner. Moreover, WTO members agree that commitments of individual members on market access should be negotiated with binding results and that there should be further negotiations on progressive liberalization. The GATS is supplemented by a number of annexes relating to special services sectors or issues, such as, for example, Movement of Natural Persons Supplying Services under the GATS; Air Transport Services (under this annex the lucrative air traffic rights and directly related activities are excluded from GATS and reserved for other bilateral agreements); Financial Services; Negotiations on Maritime Transport Services; and Telecommunications. 3.2 The Telecommunications Annex This paper is primarily interested in the telecommunications sector because it also covers satellite communications. The following is therefore limited

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to the “Annex on Telecommunications”.19 The purpose of the Annex is to allow foreign companies to use the public network and facilities of another WTO member to reach customers and provide telecommunication services. The Annex focuses on market access and the use of infrastructure; it does not govern the service sector per se. It intends to ensure that WTO members trading in various services (e.g. financial, business, or insurance services) also provide appropriate telecommunication facilities to deliver these services across the border or within their own territory. The Annex explicitly recognizes that the telecommunication services sector has a “dual role as a distinct sector of economic activity and as the underlying transport means for other economic activities”.20 The Annex applies to all measures that have an impact on access to, and use of, public telecommunications transport networks and services as regards the provision of services accepted in that WTO member’s schedule. But it is important to note that it does not cover measures “affecting the cable or broadcast distribution of radio or television programming.”21 Moreover, there is no obligation to provide access to, or supply of, “telecommunications transport networks or services not offered to the public generally.”22 “Telecommunications” is defined as “the transmission and reception of signals by any electromagnetic means.”23 “Public telecommunications transport service” is described as “any telecommunications transport service required, explicitly or in effect, by a Member to be offered to the public generally”, including, for example, “telegraph, telephone, telex, and data transmission typically involving the real-time transmission of customer-supplied information between two or more points without any end-to-end change in

19 http://www.wto.org/english/docs_e/legal_e/26-gats_02_e.htm#anntel, (accessed 1 December 2013). See M.C.E.J. Bronckers and P. Larouche, ‘Telecommunications Services and the World Trade Organization’, in: R. Kariyawasampp (ed.), The WTO, Intellectual Property, E-commerce and the Internet, Cheltenham, Elgar, 2009, pp. 162-209; H. Gao, ‘Annex on Telecommunications’, in: R. Wolfrum, P.T. Stoll, C. Feinäugle (eds.), WTO: Trade in Services, Leiden, Nijhoff, 2008. pp. 683-711; P. Malanczuk and H. De Vlaam, ‘International Trade in Telecommunications Services and the Results of the Uruguay Round of GATT’, Telecommunications and Space Journal, vol. 3, 1996, pp. 269-290. 20 Section 1. 21 Section 2(b). 22 Section 2(c)(ii). 23 Section 3(a).

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the form or content of the customer’s information.”24 The term “public telecommunications transport network” refers to “the public telecommunications infrastructure which permits telecommunications between and among defined network termination points.”25 Finally, “intra-corporate communications” is explained as “telecommunications through which a company communicates within the company or with or among its subsidiaries, branches and, subject to a Member’s domestic laws and regulations, affiliates.”26 The legal definition of the concepts of subsidiaries, branches and affiliates is left to domestic law. Commercial or non-commercial services that are “supplied to companies that are not related subsidiaries, branches or affiliates, or that are offered to customers or potential customers”27 are excluded from the scope of “intra-corporate communications”. After laying down transparency obligations in some detail regarding information on conditions affecting access to and use of public telecommunications transport networks and services,28 the Annex proceeds to ensure that each WTO member “shall ensure that any service supplier of any other Member is accorded access to and use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions, for the supply of a service included in its Schedule.”29 Further provisions lay down details on how this is to be achieved, taking into account the need to ensure the security and confidentiality of messages or to protect the technical integrity of networks.30 Other provisions address technical cooperation to assist developing counties31 and the requirement of WTO members to cooperate with international organizations like the International Telecommunications Union and the International Organization for Standardization.32 As noted above, the actual degree of liberalization under the GATS depends on which services and under which conditions a WTO member has agreed to include in its Schedule. As regards telecommunications, during the Uruguay Round negotiations most WTO members found little difficulty 24 25 26 27 28 29 30 31 32

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Section 3(b). Section 3(c). Section 3(d). Section 3(d). See Section 4. Section 5(a). See Section 5(b) through (f). Section 6. Section 7.

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in agreeing on commitments for a range of value-added services. Valueadded telecommunication services cover instances where service providers “add value” to information supplied by customers “by enhancing its form or content or by providing for its storage and retrieval.”33 This may include, for example, on-line data processing; on-line database storage and retrieval; electronic data interchange; email; or voice mail. Thus, as a result of the Uruguay Round, in 1994 such value-added telecom services were already covered by 44 Schedules representing 55 WTO members. The problem of liberalizing the more problematic “basic” telecommunications services was then dealt with under the Ministerial Declaration on Basic Telecommunications and the Annex on Negotiations on Basic Telecommunications which allows WTO members to make MFN exemptions at a later stage than originally foreseen in the GATS. How to define “basic telecommunications” on the national level was a problem. This was set aside by agreeing that GATS negotiations would cover both public and private services that involve end-to-end transmission of customer supplier information. Such services can be provided either through cross-border supply, or “through the establishment of foreign firms or commercial presence, including the ability to own and operate independent telecom network infrastructure”. 34 Important examples of basic telecommunication services are then voice telephone services; packet-switched data transmission services; circuit-switched data transmission services; telex services; telegraph services; facsimile services; and private leased circuit services. Other examples, including specific satellite services, are analog/digital cellular/mobile telephone services; mobile data services; paging; personal communications services; satellite-based mobile services (incl. e.g. telephony, data, paging, and/or PCS); fixed satellite services; VSAT services; gateway earth station services; teleconferencing; video transport; and trunked radio system services. With regard to the categories covered by basic telecommunication commitments, unless otherwise specified, the WTO lists the following: local; long distance; international; wire-based (including, e.g. all types of cables and, usually, radio portions of fixed infrastructure); radio-based (all forms of wireless, including satellite); on a resale basis (non-facilities based supply); facilities-based supply; for public use (i.e., services that must be made 33 http://www.wto.org/english/tratop_e/serv_e/telecom_e/telecom_coverage_e.htm#v alue (accessed 1 December 2013). 34 Ibid.

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available to the public generally); and for non-public use (e.g. services provided for sale to closed user groups). On 15 February 1997, an agreement was finally reached to liberalize international trade in basic telecommunications services. The 72 WTO members who decided to open their domestic markets in their schedules of commitments to foreign companies represented nearly 93 per cent of the total domestic and international annual revenue in the telecommunications sector.35 These schedules were annexed to the fourth Protocol to the GATS which was open for acceptance until 30 November 1997.36 The commitments were to enter into force on 1 January 1998, but there was a delay because 15 of the signatories had not been able to ratify the agreement in time. It was then agreed to postpone the entry into force to 5 February 1998. As part of their schedules of commitments, most of these WTO members agreed to adhere to certain regulatory practices laid down in the so-called WTO Regulation Reference Paper which served as a basis for the Negotiating Group on Basic Telecommunications.37 The Reference Paper provides useful definitions and rules on competitive safeguards; interconnection; universal service; public availability of licensing criteria; independent regulators; and allocation and use of scarce resources. As regards satellite-related communications, the WTO reports that “37 schedules (51 governments) committed on some or all types of mobile satellite services or transport capacity and 36 schedules (50 governments) commit on fixed satellite services or transport capacity.”38

35 http://www.wto.org/english/news_e/pres98_e/pr87_e.htm (accessed 1 December 2013). 36 The conclusion of the negotiations on 15 February 1997 resulted in 55 schedules of commitments, binding 69 countries, counting individually the 15 member states covered in the single European Community (EC) schedule. 37 See http://www.wto.org/english/tratop_e/serv_e/telecom_e/tel23_e.htm (accessed 1 December 2013). See also H. Gao, ‘Telecommunications Services Reference Paper’, in: R. Wolfrum, P.T. Stoll, C. Feinäugle (eds.), WTO: Trade in Services, Leiden, Nijhoff, 2008. pp. 718-747. 38 WTO NEWS: PRESS/87 26 January 1998: “WTO Telecoms deal will ring in the changes on 5 February 1998”at http://www.wto.org/english/news_e/pres98_e/pr87 _e.htm (accessed 1 December 2013). See also G.C. Hufbauer and E. Wada (eds.), Unfinished Business: Telecommunications after the Uruguay Round, Washington, D.C., Institute for International Economics, 1997, p. 21 et seq.

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3.3 Cases under GATS As of May 2013, the GATS was invoked in a total of 23 cases in requests submitted for consultations under the WTO Dispute Settlement Understanding (DSU). However, so far there has been only a single telecommunications case that has been formally submitted to a panel, namely by the United States against Mexico complaining about Mexico’s measures affecting telecommunications services. Other WTO members (Australia, Brazil, Canada, Cuba, EU, Guatemala, Honduras, India, Japan and Nicaragua) were involved in the proceedings as interested third parties. In this case, the U.S. alleged that Mexico was in breach of its GATS obligations by failing to: (i) ensure that Telemex, Mexico’s major supplier, provided interconnection to U.S. cross-border basic telecommunications suppliers on reasonable rates, terms and conditions; (ii) ensure reasonable and non-discriminatory access to, and use of, public telecommunications networks and services for U.S. basic telecommunications suppliers; and (iii) provide national treatment to U.S.-owned commercial agencies.39 After the WTO Dispute Settlement Body established a panel in this case in 2002 and some delay, a panel report was finally issued on 2 April 2004.40 The Panel decided, mostly in agreement with the U.S. position, that Mexico violated its GATS commitments by (i) failing to provide interconnection at cost-orientated rates for the cross-border supply of facilities-based basic telecommunications services, contrary to Article 2.2(b) of the Reference Paper inscribed in Mexico’s Schedule of Specific Commitments; (ii) failing to maintain adequate measures to prevent anti-competitive practices by companies that are a major telecom supplier, in violation of Article 1.1 of the Reference Paper; and (iii) failing to ensure reasonable and non-discriminatory access to, and use of, telecommunications networks, contrary to Article 5(a) and (b) of the GATS Annex on Telecommunications. However, the Panel found that Mexico was not in breach of any obligations concerning cross-border telecom services supplied on a non-facilities basis (on a resale

39 For a discussion of the procedural aspects of this case as well as the policy implications for international trade of services, both telecommunications and otherwise, see B. Wellenius, J. Galarza, and B. Guermazi, Telecommunications and the WTO: The Case of Mexico, Washington, D.C., World Bank, June 2005, pp. 14-19. 40 Mexico — Measures Affecting Telecommunications Services, Dispute DS204, http:// www.wto.org/english/tratop_e/dispu_e/cases_e/ds204_e.htm (accessed 1 December 2013).

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basis) in Mexico because it had not made any specific commitments in its Schedule for such services. The Panel Report was adopted by the DSB on 1 June 2004 following the above-mentioned “negative consensus” principle. Following the adoption of the Report, the parties then informed the DSB that they had reached a settlement agreement under which Mexico would, within a period of 13 months: (i) adopt revised Long Distance Rules eliminating the “uniform settlement rate” and “proportional return” systems in force in Mexico at the time; and (ii) implement a regulation to allow the resale of international long distance public switched telecommunications service. In August 2005, Mexico notified the DSB that it had implemented these changes and the U.S. confirmed that it was satisfied. Other disputes related to telecommunications have been under discussion among WTO members, but they did not lead to formal steps in the WTO dispute settlement system. There are at least two cases that were settled through purely bilateral channels. One case concerned a dispute between the U.S. and Japan on interconnection, the other case involved a dispute between the U.S. and the EU on standards for licensing mobile services.41 So far, there has not been any case yet reported relating specifically to a dispute on covered satellite communications services, that is those falling within the ambit of the GATS and its Telecommunications Annex, and regarding which specific commitments have been made in a WTO member’s Schedule. However, lessons may be drawn also for future relevant satellite communications issues from the Mexico case with respect to the meaning of the more general principles applied in that particular case relating, for example, to interconnection, non-discriminatory access, and anti-competitive behaviour. 4. The Purchase of Satellite Equipment and the Government Procurement Agreement (GPA) A different area within the broad WTO framework of trade rules that should be addressed in this paper is the purchase of satellite equipment under the WTO Government Procurement Agreement (GPA).

41 http://www.ictregulationtoolkit.org/en/Section.2069.html (accessed 1 December 2013).

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4.1 The government procurement agreement (GPA) As mentioned above, the GPA is a plurilateral agreement that does not automatically bind all WTO members, but only those who elected to accede to the treaty.42 It is the most important exception to the basic Single Undertaking principle of the WTO. In most economies, government procurement accounts for 15% to 20% of GDP. Only 43 of the 159 WTO members are parties to the GPA.43 In addition, there are a number of observer governments.44 The GPA is currently being renegotiated.45 The GPA covers the procurement of goods, services and capital infrastructure by public authorities.46 It is based upon principles and rules securing transparency, competition, national treatment, non-discrimination and good governance in this important economic sector in order to open it up to foreign competitors and suppliers. There are specific rules requiring the availability of domestic review procedures and on WTO dispute settlement. Special sectors considered as sensitive may be excluded, for example military procurement. In other words, not all government procurement is automatically covered. The Annexes in Appendix I to the GPA determine the exact coverage with regard to each Party. Annexes 1-3 list the central and sub-central government entities as well as other entities, like public utilities, that are required to comply with the GPA. The Annexes also identify

42 http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm (accessed 1 December 2013). See further S. Arrowsmith and R. Anderson (eds.), The WTO Regime on Government Procurement: Challenge and Reform, Cambridge, U.K., Cambridge University Press, 2011; M. Steinicke, ‘Government Procurement – Can the WTO Learn from the EU Regime?’, in: S.E. Gaines, B. Egelund Olsen and K.E. Sørensen (eds.), Liberalising Trade in the EU and the WTO: A Legal Comparison, Cambridge, U.K., Cambridge University Press, 2012, pp. 360-384. 43 Armenia, Canada, the EU with regard to its 28 members, Hong Kong, Iceland, Israel, Japan, Korea, Lichtenstein, Aruba (Netherlands), Norway, Singapore, Switzerland, Chinese Taipei and the United States, see http://www.wto.org/english/tratop_e/gpr oc_e/memobs_e.htm#parties, (accessed 1 December 2013). 44 See http://www.wto.org/english/tratop_e/gproc_e/memobs_e.htm#memobs, (accessed 1 December 2013). 45 See Decision on the Outcomes of the Negotiations under Article XXIV:7 of the Agreement on Government Procurement (GPA/113). See also http://www.wto.org/ english/news_e/news11_e/gpro_15dec11_e.htm (accessed 1 December 2013). 46 See ‘Briefing note: Government Procurement Agreement (GPA)’, http://www.wto. org/english/thewto_e/minist_e/min11_e/brief_gpa_e.htm (accessed 1 December 2013).

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the threshold value above which individual procurement transactions are covered by the GPA. Generally speaking, all goods are covered by the agreement, while each Party’s obligations concerning services and construction services are listed in Annexes 4 and 5. Moreover, Appendix I also includes Notes and a General Note further clarifying the coverage. Furthermore, Appendix II lists the publications where Parties make notices of intended procurement public. Appendix III contains permanent lists of qualified suppliers when it comes to selective tendering. Appendix IV, finally, lays down the applicable procurement rules and procedures. 4.2 Relevant WTO dispute settlement cases under the GPA There have been so far only three cases concerning the GPA under the WTO Dispute Settlement Understanding (DSU).47 Only one of these cases is of direct interest for the purposes of this paper, namely DS73: Japan – Procurement of a Navigation Satellite.48 This case arises from a complaint filed by the European Communities against Japan in March 1997 concerning a procurement tender published by the Ministry of Transport (MoT) of Japan to purchase a multi-functional satellite for Air Traffic Management. According to the Europeans, the specifications in the tender were not neutral because they explicitly referred to U.S. specifications. This implied that European bidders were effectively barred from taking part in the tender. The EC contended that this was inconsistent with Annex I of Appendix I of the commitments Japan had made under the GPA. In addition, the EC invoked violations of two provisions of the GPA. The first provision was Articles VI(3) which reads: “There shall be no requirement or reference to a particular trademark or trade name, patent, design or type, specific origin, producer or supplier, unless there is no sufficiently precise or intelligible way of describing the procurement requirements and provided that words such as “or equivalent” are included in the tender documentation.”

47 See http://www.wto.org/english/tratop_e/gproc_e/disput_e.htm (accessed 1 December 2013). 48 http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds73_e.htm (accessed 1 December 2013).

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The second provision is Article XII(2) of the GPA: “Tender documentation provided to suppliers shall contain all information necessary to permit them to submit responsive tenders, including information required to be published in the notice of intended procurement, except for paragraph 6(g) of Article IX, and the following:….[see paragraphs (a) through (k) with further details that need to be supplied]”

On 31 July 1997, the EC informed the WTO Secretariat that a mutually agreed solution had been reached between the Parties. The text of the agreement was sent to the DSB on 19 February 1998. Thus, as the Parties were able to settle the case amicably, there was no panel report. But it may be noted that on 3 March 1998, in response to a request from the United States, the EC and Japan circulated the following Joint Statement to the DSB regarding the resolution of the dispute: “In reply to the request by the United States(US) regarding the complaint (WT/ DS73/1) of 26 March 1997 in respect of a procurement tender published by the Ministry of Transport of Japan (MOT) to purchase MTSAT Satellite-based Augmentation System (MSAS), the European Communities and Japan can inform the US that the European Commission and the Ministry of Transport of Japan have reached a settlement through the establishment of cooperation between the European Tripartite Group (consisting of the European Commission, the European Space Agency and Eurocontrol) on the one hand and the MOT on the other in the field of interoperability between MSAS and European Geostationary Navigation Overlay Service (EGNOS). This cooperation is aimed at jointly contributing to the implementation of a global seamless navigation service for aeronautical end-users through the interoperability among MSAS, EGNOS and other equivalent systems. It has also been agreed that the requirements for interoperability will be mentioned in MSAS and EGNOS documentation for all future procurement in and after 1998, on condition that both sides reach the conclusion that the interoperability is feasible.”49

5. Conclusions There are obviously a broad variety of aspects under which the WTO legal framework can be relevant for satellite communications in terms of both

49 Joint Statement For Follow-Up to US Enquiry In The WTO Committee on the Agreement on Government Procurement and the Dispute Settlement Body Concerning Resolution of MSAS Complaint by the European Communities and Japan, WT/DS73/5, 3 March 1998.

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trade in services and trade in equipment, as well as in terms of trade-related aspects of intellectual property rights. The WTO dispute settlement system is also important in this regard due to its strong general significance for the functioning of the multilateral trading system as a whole. But there are also significant limitations that need to be highlighted. Individual operators and companies lack standing under WTO rules to bring claims. Disputes must be brought on the purely inter-governmental level. The WTO DSU therefore has the same disadvantages for individual claimants as the customary law mechanism of the espousal of claims against foreign governments for breaches of international law through diplomatic protection of nationals by their home state. They must rely on the insecure discretion of their home state to take up the claim and pursue it on the international level. Moreover, the WTO is focused on trade and fails to provide sufficient coverage in terms of investment protection. Furthermore, the global significance WTO as a negotiating forum is increasingly being undermined by the lack of progress in the Doha Negotiating Round since 200150 and the increasing proliferation of the now numerous regional trade arrangements (RTAs) which are serving as substitutes and give rise to jurisdictional conflicts with the WTO.51 In the Doha Round, identical views have been expressed by both the U.S. based Satellite Industry Association (SIA)52 and EU based European Satellite Operators Association (ESOA)53 on what conditions should be put from the satellite industry perspective to countries wishing to accede to the WTO and to improve existing offers by WTO members that have an impact on the provision of satellite services. These conditions are based on the following seven principles: First, licensing or authorization procedures must be transparent and nondiscriminatory, and they should be the same for earth stations, handsets, and all terminal equipment accessing domestic or foreign satellite sys-

50 See Z. Sun, ‘The Doha Round and the Future of the WTO’, in: R. Wilkinson and J. Scott (eds.), Trade, Poverty, Development: Getting Beyond the WTO's Doha Deadlock, London, Routledge, 2013, pp. 141-153. 51 S. Yang, ‘The Key Role of the WTO in Settling Its Jurisdictional Conflicts with RTA's’, Chinese Journal of International Law, vol. 11, no. 2, 2012, pp. 281-319. 52 On 15 September 2006, in comments submitted to the USTR pursuant to section 1377 of the Omnibus Trade and Competiveness Act of 1988 (19 U.S.C. 3106). 53 In comments submitted on WTO offers in November 2008.

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tems. Applications for satellite access should be decided upon within six months. Second, burdensome local entity or presence requirements should be abolished as a requirement for market access. Foreign satellite operators must not be required to establish a local company in all countries of their coverage area. A local post address to receive official correspondence should suffice. Third, national treatment should be fully granted to foreign operators. Fourth, market access authorization of entrance by foreign satellite operators should not be made conditional upon definite completion of the burdensome frequency coordination process which may take years. Authorization to enter the market should be granted on the condition that the respective ITU frequency coordination process will be undertaken. Fifth, local telecom operators or satellite systems should not be given a monopoly position, allowing them to act as an intermediary in the sale of foreign space segment, or in granting access to mobile satellite services (MSS) systems. Sixth, the delivery of broadcast video signals and associated audio signals via satellite should not be excluded from a country’s WTO offer. Foreign satellite operators should have the right to deliver such signals to cable head ends, as the satellite operator is merely offering a transport service for licensed broadcasters and is not responsible for the content of programming level. Seventh, finally, WTO members should not insist on the use by foreign satellite operators of particular technologies to meet technical or policy (e.g. security in MSS systems) requirements. Compliance by employing the most advanced technical means available should suffice. Whether such demands will materialize in the current Doha Round is more than doubtful, as the negotiations have generally stalled, including the sectoral negotiations on further liberalization of services. Frustration with the cumbersome WTO negotiation process based on consensus of all members, has led a group of proactive-minded countries in 2013 to take the initiative to start talks on a new plurilateral services agreement. This group has assumed the name of the “Really Good Friends of Services”. It is neither an exclusive nor a stable group of WTO members. But it includes the EU and its 28 member states, plus some other 20 WTO members, such as Australia, Canada, Chile, Chinese Taipei, Columbia, Costa Rica, Hong Kong, Iceland, Israel, Japan, Republic of Korea, Mexico, New Zealand, Norway, Panama,

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Pakistan, Peru, Switzerland, Turkey and the United States. It remains to be seen whether this project will succeed. At the moment, the new initiative does look more promising than what the WTO Doha Round is capable of offering in terms of innovation. Moreover, this more advanced group may be in a better position to address the problems that have meanwhile arisen since 1997 due to the rapid technological development and the convergence of information and communication technologies, overriding old systems of classification.54 Bibliography Adlung, R., Trade in Services in the WTO: From Marrakesh (1994), to Doha (2001), to... (?), in: A. Narlikar, M. Daunton and R.M. Stern (eds.), The Oxford Handbook on the World Trade Organization, Oxford, Oxford University Press, 2012, pp. 370-393. Narlikar, A., Daunton, M. and Stern, R.M. (eds.), The Oxford Handbook on the World Trade Organization, Oxford, Oxford University Press, 2012. Preeg, E.H., ‘The Uruguay Round Negotiations and the Creation of the WTO’’, in: A. Narlikar, M. Daunton and R.M. Stern (eds.), The Oxford Handbook on the World Trade Organization, Oxford, Oxford University Press, 2012, pp. 122-137. Shaffer, G. and Trachtman, J., ‘WTO Judicial Interpretation’, in: A. Narlikar, M. Daunton and R.M. Stern (eds.), The Oxford Handbook on the World Trade Organization, Oxford, Oxford University Press, 2012, pp. 535-559. Yang, S., ‘The Key Role of the WTO in Settling Its Jurisdictional Conflicts with RTA's’, Chinese Journal of International Law, vol. 11, no. 2, 2012, pp. 281-319.

54 See the Communication from the European Communities – Classification in the Telecom Sector under the WTO-GATS Framework, WTO Doc. TN/S/W/27, S/CSC/ W/44, 10 February 2005.

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About the New PCA Rules and their Application to Satellite Communication Disputes Frans G. von der Dunk*

Abstract In 2011 the PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities were adopted. The present contribution addresses the possible relevance of these new rules for disputes regarding international satellite communication, noting the existence of various dispute settlement regimes already available and analysing their respective usefulness for such international satellite communications disputes. 1. Introduction This contribution addresses the application of a new international dispute settlement system – the Permanent Court of Arbitration (PCA)1 2011 Optional Rules for Arbitration of Disputes Relating to Outer Space Activities2, or ‘PCA Rules on Outer Space Disputes’ – to international satellite communications. Satellite communications, as the most commercialized, largest and most down-to-earth amongst the various applications of outer space activities, provided a main rationale for establishing this new system in the first place.3 Satellite communications for the present purpose could be

* Harvey & Susan Perlman Almuni / Othmer Professor of Space Law, University of Nebraska-Lincoln, College of Law, Lincoln, Nebraska, United States of America. 1 The Permanent Court of Arbitration (PCA) was established in 1899 to provide a variety of dispute resolution services to the international community; cf. further e.g. http://www.pca-cpa.org/showpage.asp?pag_id=363. 2 Permanent Court of Arbitration, Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (hereafter PCA Rules on Outer Space Disputes), effective 6 December 2011; available at http://www.pca-cpa.org/showpage.asp?pag_id=1188. 3 The author was member of the Advisory Group assisting the PCA in developing the PCA Rules for Outer Space Disputes; this evaluation as well as much of the following

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defined as the totality of hardware, software and operations offering telecommunications facilities and services fundamentally making use of satellites in outer space to customers. Whilst dispute settlement in the international arena is much older than satellite communications, and satellite communications in turn much older than the new PCA Rules on Outer Space Disputes, the major question to be asked here is: whence the necessity to establish such a new mechanism, noting that already prima facie a number of existing dispute settlement systems would be available – as discussed further below in greater detail. The answer to that question should start from the fundamental assessment that satellite communications is one of the most multi-faceted sectors of the global economy. 2. Satellite Communications and Dispute Settlement Firstly, the above characterization applies to the physical infrastructure which allows satellite communications to take place, and to do so across the entire globe: it is comprised of both (tangible) terrestrial and (tangible) space hardware, communicating to each other by way of (intangible) radio waves as driven by extended (intangible) software and protocols. Whilst much of the hardware is placed on Earth, other parts are to be found in less easily accessible areas – and of course the satellites themselves, key elements of that infrastructure, function in the essentially inaccessible area of outer space. Legally speaking, this already means that many different national laws and jurisdictions are involved, applicable to the hardware present on the territory of the states concerned (ranging from ground stations to individual user communication devices), the software and protocols developed for those areas, and the radio waves to the extent ‘traversing’ such jurisdictions.4 is based upon his recollections and impressions, as supported by a number of informal exchanges of opinion on file with the author. 4 The national sovereignty of states over national territory and everything taking place on it is, of course, one of the most fundamental tenets of international law; cf. already Art. 2(1), (4), (7), Charter of the United Nations (hereafter UN Charter), San Francisco, done 26 June 1945, entered into force 24 October 1945; USTS 993; 24 UST 2225; 59 Stat. 1031; 145 UKTS 805; UKTS 1946 No. 67; Cmd. 6666 & 6711; CTS 1945 No. 7; ATS 1945 No. 1.

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In addition, the use of outer space for both satellites and traversing radio waves to and from them means that a ‘global commons’ is also involved, that is an area where individual state jurisdiction does not apply on a territorial basis and the limitations to the basic freedom to act at a comprehensive level are and can only be set by international law.5 While obviously that raises the issue of where the air spaces subject to territorial sovereignty, vertically speaking, give way to the international area of outer space, that issue will not be discussed here.6 Secondly, due to the mix of military, political, social, economic and commercial reasons for undertaking satellite communications, it is a sector where not only many governments, but also a handful of intergovernmental operators – notably as of today INTERSPUTNIK7 and ARABSAT8 – are active, as well as a host of private companies. Amongst the latter, moreover, three

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Falling within such territorial sovereignty are both the internal waters and territorial waters (cf. Art. 2, United Nations Convention on the Law of the Sea, Montego Bay, done 10 December 1982, entered into force 16 November 1994; 1833 UNTS 3 & 1835 UNTS 261; UKTS 1999 No. 81; Cmnd. 8941; ATS 1994 No. 31; 21 ILM 1261 (1982); S. Treaty Doc. No. 103-39) and the airspace above such territory as well as above internal and territorial waters (cf. Art. 1, Convention on International Civil Aviation (hereafter Chicago Convention), Chicago, done 7 December 1944, entered into force 4 April 1947; 15 UNTS 295; TIAS 1591; 61 Stat. 1180; Cmd. 6614; UKTS 1953 No. 8; ATS 1957 No. 5; ICAO Doc. 7300). Cf. Artt. II, also I, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). For those interested in the opinion of the author, reference may be had e.g. to Beyond What? Beyond Earth Orbit?...! The Applicability of the Registration Convention to Private Commercial Manned Sub-Orbital Spaceflight, 43 California Western International Law Journal (2013), esp. 325-34. INTERSPUTNIK was established in its original fashion by the Agreement on the Establishment of the “INTERSPUTNIK” International System and Organization of Space Communications (hereafter INTERSPUTNIK Agreement), Moscow, done 15 November 1971, entered into force 12 July 1972; 862 UNTS 3; TIAS 859 (1973) No, 12343; Space Law – Basic Legal Documents, C.VIII.1. Currently, it has 26 member states; see http://www.intersputnik.com. ARABSAT was established by the Agreement of the Arab Corporation for Space Communications (ARABSAT)(hereafter ARABSAT Agreement), Cairo, done 14 April 1976, entered into force 15 July 1976; Space Law – Basic Legal Documents, C.VII.1; 44 Telecommunications Journal (IX/1977), at 422. Currently, it has 21 member states; see http://www.arabsat.com/pages/AboutUs.aspx.

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of the most important evolved from intergovernmental structures and still operate under the sway of an intergovernmental supervisor: Intelsat9, Inmarsat10 and Eutelsat11. This in turn means, in legal terms, that the legal aspects – and hence potential disputes – can involve any or all fields within public international law, national administrative law, civil and sometimes even criminal law, as well as private international law and contract law. Any ideal dispute settle-

9 Intelsat took over the satellite fleet originally operated by the intergovernmental organization INTELSAT, with a remaining nucleus of that latter entity surviving as the International Telecommunications Satellite Organization ITSO; cf. Agreement Relating to the International Telecommunications Satellite Organization (ITSO) (hereafter ITSO Agreement), Washington, done 20 August 1971, entered into force 12 February 1973, as amended 13 November 2000, amended version entered into force 30 November 2004; Cm. 5092; Space Law – Basic Legal Documents, C.V.1. See for an analysis of its privatization and the relationship between ITSO and Intelsat e.g. P.K. McCormick, Intelsat: Pre and Post-Private Equity Ownership, in The Transformation of Intergovernmental Satellite Organisations (Eds. P.K. McCormick & M.J. Mechanick)(2013), 81-117; M.J. Mechanick, The Role and Function of Residual International Intergovernmental Satellite Organisations Following Privatisation, in The Transformation of Intergovernmental Satellite Organisations (Eds. P.K. McCormick & M.J. Mechanick)(2013), 175-221. 10 Inmarsat took over the satellite fleet originally operated by the intergovernmental organization INMARSAT, with a remaining nucleus of that latter entity surviving as the International Mobile Satellite Organization IMSO; cf. Convention on the International Mobile Satellite Organization (hereafter IMSO Convention), London, done 3 September 1976, entered into force 16 July 1979, as amended 1998, amended version entered into force 31 July 2001; ATS 2001 No. 11; Space Law – Basic Legal Documents, C.VI.1. See for an analysis of its privatization and the relationship between IMSO and Inmarsat e.g. D. Sagar & P.K. McCormick, Inmarsat: In the Forefront of Mobile Satellite Communications, in The Transformation of Intergovernmental Satellite Organisations (Eds. P.K. McCormick & M.J. Mechanick)(2013), 35-79; Mechanick, 175-221. 11 Eutelsat took over the satellite fleet originally operated by the intergovernmental organization EUTELSAT, with a remaining nucleus of that latter entity surviving as EUTELSAT IGO; cf. Convention Establishing the European Telecommunications Satellite Organization (EUTELSAT)(hereafter Revised EUTELSAT Convention), Paris, done 15 July 1982, entered into force 1 September 1985, as amended 20 May 1999, amended version entered into force 28 November 2002; Cm. 4572; Space Law – Basic Legal Documents, C.II.1. See for an analysis of its privatization and the relationship between EUTELSAT IGO and Eutelsat e.g. C. Roisse, The Evolution of EUTELSAT: A Challenge Successfully Met, in The Transformation of Intergovernmental Satellite Organisations (Eds. P.K. McCormick & M.J. Mechanick)(2013), 119-73; Mechanick, 175-221.

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ment mechanism should be able to handle effectively and properly all such aspects within one coherent system. Whilst, for instance, the aforementioned intergovernmental and formerly intergovernmental satellite operators under their constitutive documents have created their own dispute settlement systems, those can only be used for disputes between the organization and/or member states and moreover only for disputes concerning the activities conducted in the context of the organization and legal rights and obligations following therefrom.12 Thirdly, as a consequence of the varied interests and legal characteristics of the stakeholders, also from a practical perspective many various aspects of the activities involved might be at issue in a dispute needing to be settled by legal means. These aspects range from the more technical and operational ones such as the technologies involved and the proper usage of radio frequencies, to trade and commercial issues of the right to provide or receive services, to political and security issues of satellite communications as critical infrastructure and, in many cases, involving high-level dual-use technology, to social aspects such as the provision of ‘public services’. In the legal realm this also translates into a large variety of uncoordinated legal regimes being potentially of import on the operations in terms of subject matter. Whereas for example on the international level, the International Telecommunication Union (ITU)13 provides the legal framework for the coordination of usage of radio frequencies, the World Trade Organization (WTO)14 does so with respect to the provision of services, whilst there is no globally binding regime regulating the traffic of dual-use goods as far as

12 See e.g. Art. 19, ARABSAT Agreement; Art. XVI, ITSO Agreement; Art. 31, IMSO Convention; Art. XV, Revised EUTELSAT Convention. 13 The ITU was reconstituted most recently by the ITU Constitution (Constitution of the International Telecommunication Union, Geneva, done 22 December 1992, entered into force 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 1; and the ITU Convention (Convention of the International Telecommunication Union, Geneva, done 22 December 1992, entered into force 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 71); both amended a few times since. 14 The WTO was established by the WTO Agreement (Agreement Establishing the World Trade Organization, Marrakesh, done 15 April 1994, entered into force 1 January 1995; 1867 UNTS; UKTS 1996 No. 57; ATS 1995 No. 8; 33 ILM 1125, 1144 (1994)).

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relevant for satellite communications – that remains essentially a matter of national export control regimes15. In sum, it will be clear that this large kaleidoscope of applicable legal regimes, potential players and stakeholders, interests and subject matter potentially subject to dispute, in itself will make disputes so much more likely, substantive and in need of solution. This once again poses the fundamental question of whether any existing mechanism for dispute settlement (of which some of the main relevant ones will be discussed below) would adequately allow coverage of all disputes thinkable – noting of course that in the overwhelming majority of instances, common sense, negotiation and diplomacy suffice to preclude disputes from requiring recourse to properly-legal dispute settlement systems in the first place. 3. Existing Legal Dispute Settlement Mechanisms and their Potential Relevance for Satellite Communication Disputes 3.1. Introduction In the following overview, attention will be paid only to those existing dispute settlement mechanisms which are of a decidedly legal character – that is, basically, those of judicial settlement and arbitration. Whilst this is not to deny the validity and usefulness of many non-judicial dispute settlement mechanisms, especially in the international community, such as diplomacy, mediation and conciliation,16 the absence of the possibility to arrive at a

15 It should be noted that the Wassenaar Arrangement (Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Wassenaar, done 19 December 1995, effective 12 July 1996; http://www.wassenaa r.org/), relevant in this context, essentially is a voluntary coordination mechanism, not a legally binding international treaty. This leaves such regimes as that based upon Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dualuse items, No. 388/2012/EU, of 19 April 2012, OJ L 129/12 (2012), or that of the US International Traffic in Arms Regulations (ITARs) to deal with such issues – but obviously from a regional respectively national perspective. 16 Cf. e.g. Art. 33(1), UN Charter, which provides: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,

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binding settlement and a third party in the end imposing such settlement, a key common element in those mechanisms, causes them to be of a fundamentally different character. Most importantly, also, in those mechanisms predominantly legal analyses and considerations could and often do take a backseat to other concerns. 3.2. The International Court of Justice (ICJ) The International Court of Justice (ICJ), often nicknamed the ‘World Court’, is the primary judicial organ of the United Nations, and operates on the basis of a Statute which is an integral annex to the UN Charter; thus, all UN member states are ipso facto parties to that Statute.17 It consists of fifteen judges chosen from different nationalities, including one from each of the five permanent members of the UN Security Council.18 The ICJ sits in The Hague, The Netherlands, and can issue both binding judgements in disputes and Advisory Opinions (which obviously are not of a legally binding nature).19 For satellite communications as sketched above, however, the ICJ mechanism presents a number of ‘shortcomings’ from the perspective of an ideal mechanism able to handle all relevant disputes in a single coherent and effective fashion. Firstly, in terms of actors or stakeholders as potential disputants, the route to the ICJ is only formally open for states.20 Whilst international organizations may provide information relevant in a case before the Court21 – as well as request for an Advisory Opinion, if properly authorized22 – they cannot

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conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” See further e.g. G. Goh, Dispute Settlement in International Space Law (2007), 91-110; J. Merrills, The Means of Dispute Settlement, in M.D. Evans (Ed.), International Law (2003), 531-9. See esp. Art. 92, UN Charter, and Statute of the International Court of Justice (hereafter ICJ Statute), San Francisco, done 26 June 1945, entered into force 24 October 1945; 156 UNTS 77; USTS 993; 59 Stat. 1031; UKTS 1946 No. 67; ATS 1945 No. 1. Cf. Art. 3(1), ICJ Statute. See Artt. 22(1), 34-38, 65-68, ICJ Statute. See Art. 34(1), ICJ Statute. Cf. Art. 34(2), ICJ Statute. See Art. 65(1), ICJ Statute; Art. 96(1), UN Charter, provides that the UN General Assembly and UN Security Council have this right to request an Advisory Opinion ipso facto.

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themselves instigate a procedure or be a party to such a procedure in its own right. Private entities (such as currently most satellite operators are) even more fully depend on a particular state (usually the state of their nationality), more precisely firstly its willingness to undertake such an action of ‘diplomatic protection’ and secondly its jus standi, meaning that the private company has complied with the prior requirement of ‘exhaustion of local remedies’.23 Secondly, though all UN member states, and thereby almost all existing states, are parties to the ICJ Statute, the ICJ is only able to adjudicate disputes between states which have, one way or another, accepted ICJ jurisdiction. Effectively, there are four generally recognized ways in which such acceptance can be shaped. By way of the first two scenarios, “[t]he jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”.24 In other words, parties to a dispute may at that stage refer that dispute in common agreement, by way of a document usually labelled ‘Compromis’, to the Court, respectively existing treaties may refer to the Court as the (or a) dispute settlement system to be used in case of disputes arising regarding the subject matter of such a treaty. Under the third scenario, “[t]he states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation”.25

23 See e.g. I. Brownlie, Principles of Public International Law (4th ed.; 1990), 494-504; M.N. Shaw, International Law (4th ed.; 1997), 567-9; P. Okowa, Issues of Admissibility and the Law on International Responsibility, in M.D. Evans (Ed.), International Law (2003), 493-9. 24 Art. 36(1), ICJ Statute; emphasis added. 25 Art. 36(2), ICJ Statute. Such declarations “may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time”; Art. 36(3). It should be pointed out, that as of 3 September 2014 a total of 70 states, roughly one-third of the international community of states, have deposited such an a priori recognition of ICJ jurisdiction which is currently in force; see http://www. icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3.

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The fourth scenario arises where in a given case one party to the dispute addresses substantive matters, as opposed to just questioning the ICJ’s jurisdiction, which is then interpreted as amounting to de jure acceptance of that jurisdiction – the so-called forum prorogatum.26 Thirdly, in this context major limitations to possibly applicable law exist. The ICJ is charged with adjudicating disputes with a rather broad clause on applicable law – encompassing “a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”27, and can also in principle decide a case ex aequo et bono.28 Yet, for example, national or contract law normally cannot be applied. There is a clear and obvious focus of this Court on public international law, as the ‘law of nations’, which also determines the main legal expertise of the individual members of the Court.29 Fourthly, also in another crucial context parties have little autonomy and control over the proceedings: the persons adjudicating the dispute. The fifteen judges of the ICJ are elected without any specific reference to a case or the parties thereto. The only exception is where a party to a dispute does not have a judge of its nationality on the court, in which case it may appoint an ad hoc judge.30 Whilst furthermore the possibility exists for the Court to compose – at its discretion, though presumably in close consultation with the parties to the dispute at issue – a chamber for a specific category of cases or even a single case, the members of such a chamber will be constituted from amongst the fifteen sitting judges.31

26 See e.g. Brownlie, 729-30; S. Rosenne, International Court of Justice (ICJ), in R. Wolfrum (Ed.), The Max Planck Encyclopedia of Public International Law, Vol. V (2012), 475. 27 Art. 38(1), ICJ Statute. The referenced Art. 59 provides: “The decision of the Court has no binding force except between the parties and in respect of that particular case”. 28 See Art. 38(2), ICJ Statute. 29 Cf. also Art. 2, ICJ Statute: “The Court shall be composed of a body of independent judges (…) who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law”. 30 Cf. Art. 31(2), (3), ICJ Statute. 31 Cf. Art. 26, ICJ Statute.

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Fifthly, and finally, in view of the more traditional character of state-tostate disputes and the law of nations, the political role of the United Nations of which the ICJ is the primary legal organ, and the focus on overarching public law aspects of any disputes brought before it, there would be a certain risk that expertise with the specific, high-level and constantly evolving technology at issue in satellite communications would be largely absent with the judges themselves, which almost automatically would require experts to be called upon to explain such technological and operational issues behind any legal dispute.32 3.3. The ITU dispute settlement system With the ITU, ever since the World Administrative Radio Conference of 1959, being responsible for the international coordination of radio frequency usage by satellite systems and their ground infrastructure,33 it would make sense to next investigate the extent to which settlement of satellite communications disputes could be achieved within the ITU framework. Indeed, the ITU Constitution and ITU Convention together provide for a few options to use in case a dispute arises.34 Firstly, however, the essence of this system is the potential absence of a binding resolution of a dispute. Thus, “Member States may settle their disputes on questions relating to the interpretation or application of this Constitution, of the Convention or of the Administrative Regulations by negotiation, through diplomatic channels, or according to procedures established by bilateral or multilateral treaties concluded between them for the settlement of international disputes, or by any other method mutually agreed upon”.35 Then, “[i]f none of these methods of settlement is adopted, any Mem-

32 While Art. 50, ICJ Statute, does allow for the Court to “entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion”, there is for example no a priori list of such experts available, and it may furthermore be argued that a minimum level of technological expertise would anyhow be necessary for judges to fully understand such expert testimony and place it in the proper juridical context. 33 See e.g. F. Lyall, International Communications (2011), 110; F. Lyall, Law and Space Communications (1989), 358 ff. 34 See for more details S. Venkatasubramanian, ITU and its Dispute Settlement Mechanism, in this publication see p.23. 35 Art. 56(1), ITU Constitution; emphasis added.

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ber State party to a dispute may have recourse to arbitration in accordance with the procedure defined in the Convention”.36 In the alternative, an “Optional Protocol on the Compulsory Settlement of Disputes Relating to this Constitution, to the Convention, and to the Administrative Regulations shall be applicable as between Member States parties to that Protocol”.37 The Protocol essentially amends the procedure of Article 41, but its invocation also establishes an arbitration tribunal.38 Such an explicitly listed multitude of options, including two partly alternative arbitration mechanisms, it seems, would not be very conducive or compelling for parties to arrive at a binding third-party settlement – or, to put it in other terms, there are too many explicit opportunities for states to dodge the binding settlement of disputes. A second shortcoming from the perspective of the satellite communication sector as a whole concerns the limitation of access to these mechanisms to states only. This is certainly in line with the traditional character of the ITU as an intergovernmental organization composed of sovereign states39 as further reflected in the ITU role in allotting frequencies to states requesting them, who in turn may assign them to non-governmental operators40. Whilst recently non-state actors have become empowered to participate as ‘Sector Members’,41 this does not provide them with any voting or other key co-

36 Art. 56(2), ITU Constitution; emphasis added. Art. 41, ITU Convention, provides the details of this arbitration option. 37 Art. 56(3), ITU Constitution; emphasis added. 38 See further S. Venkatasubramanian, ITU and its Dispute Settlement Mechanism, in this publication see p. 23. 39 See also Art. 2, ITU Constitution. 40 Cf. Artt. 1(16), (17), (18), 5(1), Radio Regulations, Edition of 2012 (hereafter Radio Regulations); http://www.itu.int/pub/R-REG-RR-2012. 41 See Artt. 3(3), 12(3.a), 17(3.b), 21(4.b), ITU Constitution, as amended by the Instrument amending the Constitution of the International Telecommunication Union of 22 December 1992, as amended 14 October 1994, Minneapolis, done 9 November 1998, entered into force 1 January 2000; ATS 2000 No. 8; also e.g Art. 4(9ter), ITU Convention, as amended by the Instrument amending the Convention of the International Telecommunication Union of 22 December 1992, as amended 14 October 1994, Minneapolis, done 9 November 1998, entered into force 1 January 2000; ATS 2000 No. 8. The three sectors referred to concern the Radiocommunication Sector, the Telecommunication Standardization Sector and the Telecommunication Development Sector.

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decision-making powers in the context of the ITU governance structure42. Consequently, also, in any dispute to be settled under the mechanisms offered by the ITU treaties, it is one government or another which would have to take up the case of a private operator. The third major shortcoming concerns almost the mirror-side of the general lack of the ICJ’s expertise in specific technological and operational matters. In view of the orientation of ITU’s role on precisely the latter category, one might question the extent to which any arbitration instigated under Article 41 of the ITU Convention or the Optional Protocol would be sufficiently aware of public international law, political and security, and trade and commercial aspects to comprehensively understand and address all potential angles to a satellite communications dispute. 3.4. The WTO dispute settlement system Satellite communications increasingly having become a commercial sector with world-wide scope, the next area where relevant disputes might arise would concern that of international trade in goods and (especially) services, and the regime applicable thereto. The General Agreement on Tariffs and Trade (GATT)43, established in 1947 to progressively break down the international barriers to trade in commodities, already at least in principle could encompass goods and products in the context of satellite communications. More importantly, however, the extension in 1994 of the main principles and rules of the GATT to the service sector by way of the General Agreement on Trade in Services (GATS)44 and the establishment of the World Trade Organization (WTO)45 as a formal organization to underpin and further promote the aims of GATT and GATS,

42 Cf. e.g. Artt. 7, 8, 10, ITU Constitution, on the Plenipotentiary Conference (the highest organ of the organization) and the ITU Council (the executive organ acting on behalf of the Plenipotentiary Conference), making no reference whatsoever to Sector Members. 43 As per the General Agreement on Tariffs and Trade (hereafter GATT), Geneva, done 30 October 1947, entered into force 1 January 1948; 55 UNTS 194; TIAS 1700; ATS 1948 No. 23. 44 As per the General Agreement on Trade in Services (hereafter GATS), Marrakesh, done 15 April 1994, entered into force 1 January 1995; UKTS 1996 No. 58; Cm. 3276; ATS 1995 No. 8. 45 As per the aforementioned WTO Agreement; see supra, at n. 14.

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triggered its application to telecommunications, including satellite communications. This took place in particular as per the establishment of a 1997 agreement on basic telecommunication services46, following the general GATT- and GATS-approach of applying the general regime to specific sectors by way of specific and tailor-made further international agreements. Whilst the substance of application of GATS/WTO rules to the satellite communication sector effectively depended upon a complex web of individual states’ commitments, the above also meant the dispute settlement system for international trade disputes as per the WTO Agreement now became applicable to satellite communication disputes, to the extent that these concerned international trade aspects of satellite communication services.47 In sum, this system consisted of a system of ‘escalating’ dispute settlement mechanisms, starting with consultation and then moving up through panels, the Appellate Body and ultimately a Dispute Settlement Body, where parties however may also decide on arbitration.48 This WTO dispute settlement regime essentially ‘suffers’ from the same set of shortcomings as the ITU dispute settlement mechanisms discussed above. Firstly, it does not (necessarily) give rise to a binding solution imposed by a neutral third party, although it comes rather close by “creating a reverse consensus rule that maintains arbitral or appellate decisions unless a consensus vote rejects them”.49 Whilst Annex 2 to the WTO Agreement consistently speaks of “recommendations and rulings”50 of the DSB, suggesting the latter would be binding as different from the former, this is nowhere explicitly stated.51

46 As per the Fourth Protocol to the General Agreement on Trade and Services of 15 April 1994, Geneva, done 15 April 1997, entered into force 5 February 1998; ATS 1998 No. 9; 33 ILM 1167 (1994); 36 ILM 354 (1997). 47 See for more details P. Malanczuk, From Negotiations to Dispute Settlement: The Role of the World Trade Organization in relation to Satellite Communications, in this publication see p. 71. 48 Further to Art. III(3), Annex 2, ‘Understanding on Rules and Procedures Governing the Settlement of Disputes’, provides for this dispute settlement system. See Art. 4, Annex 2, on consultations; Art. 5 on good offices, conciliation and mediation; Artt. 6-16 & 18-19 on panels; Artt. 17-19 on the Appellate Body; Artt. 20-24 on the Dispute Settlement Body; and Art. 25 on arbitration. 49 Goh, 212. 50 See Art. 21, Annex 2, WTO Agreement. 51 Cf. e.g. Art. 3, Annex 2, WTO Agreement, which seems to skirt the issue, referring to member states “affirm[ing] their adherence to the principles for the management

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Secondly, it does not allow private companies having issues with a particular WTO-devolving regulation or the interpretation, implementation or application thereof to assert a claim on its own behalf in the framework of the WTO dispute settlement regime.52 This is of course not surprising with a view to the character of the WTO as a classical international intergovernmental organization, yet automatically means many important actors and stakeholders in international trade will not have direct access to such dispute settlement procedures – and this analysis also applies squarely to satellite communications. Thirdly, the WTO in turn is obviously very focused on trade and commercial aspects, and hence expertise in those areas as necessary for dispute settlement will in principle be broadly available. By contrast, however, many potential other angles to a trade or commerce dispute involving satellite communications, such as the technical/operational, politico-security and social approaches, might easily be left out of the considerations or treated insufficiently or incorrectly. 3.5. The Liability Convention dispute settlement clauses The next dispute settlement mechanism to be briefly scrutinized from the perspective of satellite communications concerns the Liability Convention53, the space treaty dealing with liability for damage caused by space activities. More precisely, it handles damage caused by a space object, liability for which is then attributed to the “launching State” – depending upon where the damage occurs, under a regime of absolute liability respectively of fault liability.54 Whilst a definition of ‘space object’ is not really provided,

of disputes” as per Annex 2 (in § (1)) and also otherwise merely impressing the value of confirming to decisions arising out of the dispute settlement system. 52 Cf. e.g. Art. 3, esp. (2), (3), (7), Annex 2, WTO Agreement. 53 Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971). 54 See Artt. I(c), II, III, Liability Convention, with Art. I(c) defining the “launching State” along four alternative criteria: the state which launches, which procures the launch, whose territory was used for the launch respectively whose facility was used for the launch of the space object at issue.

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there is no doubt that satellites such as used for telecommunications would be covered, and hence that the Liability Convention would be relevant.55 The Liability Convention includes provisions for the solution of disputes on relevant cases of damage and liability. To begin with, the victim state should present its claims for damage to the launching state(s) through diplomatic channels.56 If however no settlement is arrived at within a year after notification of the claim, the claimant state (or indeed also the defendant state) may have recourse to establishment of a ‘Claim Commission’, a mechanism which in appearance is very similar to arbitration.57 Upon closer view, this mechanism has three fundamental ‘shortcomings’ from the perspective of satellite communications. Firstly, the scope of the Convention, and thus of the Claims Commission’s competences, is rather limited ratione materiae. As already transpires from the above, the Convention’s clauses only deal with damage caused by satellites and liability therefore. This immediately raises a few issues. Issues of accountability broader than that of liability – in particular, that of general “international [state] responsibility for national activities in outer space”58 – can, if giving rise to international disputes, not be properly solved by this mechanism. This could refer to, for example, claims that a particular satellite is violating international law prohibitions of inciting racism or war, where no (immediate) damage would be at stake. The restriction of the Liability Convention’s dispute settlement mechanism to cases of damage caused by satellites means that it does not even apply to all imaginable cases of damage occurring in the context of satellite operations. Damage caused independently from the satellites by other elements of the satellite communication system – ground stations and mobile

55 Art. I(a), Liability Convention, only contains a partly and circular ‘definition’ of ‘space objects’; amongst experts it is more or less agreed that all human made objects launched or attempted to be launched into outer space would be covered by this concept. 56 See Art. IX, Liability Convention. 57 See Art. XIV, Liability Convention. The details of establishing a Claims Commission and its competences and modus operandi are provided by Art. XV-XXI. 58 Art. VI, Outer Space Treaty. The proper relationship between this state responsibility, and the state liability expounded by Art. VII, Outer Space Treaty, as well as the Liability Convention has never been satisfactorily clarified. See e.g. already the author’s Liability versus Responsibility in Space Law: Misconception or Misconstruction?, in Proceedings of the Thirty-Fourth Colloquium on the Law of Outer Space (1992), 363-71.

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devices, for example – are by definition not covered; only the space segment could be implicated. ‘Damage’ is defined by the Convention as “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations”59. This is generally perceived to refer, firstly, to physical damage only, where damage ‘caused by space objects’ is generally interpreted to mean ‘damage caused by collision with a space object’ (excluding for instance damage caused by mere electronic interference60), and secondly, to direct physical damage only (excluding indirect damage such as loss of revenues61). Precisely since cases of electronic interference and commercial loss of revenues are high on the list of concerns of private commercial operators, this is a considerable limitation in the light of current realities. The second shortcoming is also a familiar one: the Claims Commission mechanism as such is only available to states. Private entities could only have any claims asserted through their state of nationality, subsidiary to the state where the damage might have occurred (presuming cases where the damage was suffered on Earth).62 Intergovernmental organizations may have a – relatively exceptional – possibility to qualify as an equivalent to ‘state parties’ under the Convention

59 Art. I(a), Liability Convention. 60 The author is aware of only one expert who made the argument that damage resulting from incorrect navigation information broadcast by a GNSS-satellite should be compensable under the Liability Convention, as ‘damage caused by a space object’; see B.D.K. Henaku, The Law on Global Air Navigation by Satellite: An Analysis of Legal Aspects of the ICAO CNS/ATM System (1998), 221. 61 It should be added that some authors argue that the clause of Art. XII, Liability Convention, which requires “such reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred”, effectively means also indirect and consequential damages such as loss of revenues form part of compensable damage; cf. e.g. B.A. Hurwitz, State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage caused by Space Objects (1992), 12-20; the authors quoted in C.Q. Christol, The Modern International Law of Outer Space (1984), e.g. 96-7. 62 See Art. VIII(1), resp. (2), Liability Convention. For natural persons suffering damage, a third subsidiary option exists in that a state of permanent residence may also assert a claim (per Art. VIII(3)), but this clause seems not to be applicable to legal persons such as companies, as ‘permanent resident’ is a term of art for natural persons.

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if the majority of member states are parties to both the Outer Space Treaty and the Liability Convention63, but upon closer view this does not rise to the level of autonomous jus standi with respect to (establishment of) a Claims Commission. If, on the one hand, the intergovernmental organization in question qualifies as “launching State” for the purpose of the Convention, a claim for damage may indeed be presented to the organization itself by any victim state. However, if such organization has not paid out within six months the compensation requested, the claimant state has the right to refer to individual member states of the organization (or other “launching States”).64 Noting the one year-term following diplomatic assertion of the claim before establishment of a Claims Commission could be undertaken,65 this effectively means recourse to the mechanism of the Claims Commission is precluded for the organization itself. If, on the other hand, the intergovernmental organization would qualify as a victim of damage at issue, in spite of its status as a ‘quasi-party’ to the Convention, it would have to rely on one member state or another to assert claims on its behalf, whether by way of diplomatic negotiations or by way of the Claims Commission route.66 It has to be said here finally that the Liability Convention itself recognizes that it may not be the most feasible or desirable tool for dispute settlement even within its realm of application – disclaiming any status as exclusive remedy, it explicitly allows for other, national dispute settlement mechanisms and even grants them priority: “Nothing in this Convention shall prevent a State, or natural or juridical persons it might represent, from pursuing a claim in the courts or administrative tribunals or agencies of a launching State. A State shall not, however, be entitled to present a claim under this Convention in respect of the same damage for which a claim is being pursued

63 Following Art. XXII(1), Liability Convention, in such cases they can deposit declarations of their “acceptance of the rights and obligations provided for in this Convention”, and thereby act as de jure parties to the Convention with the exception of the procedural clauses contained in Artt. XXIV-XXVII. So far, only the European Space Agency (ESA), EUTELSAT IGO and EUMETSAT have complied with the necessary conditions. 64 As per Art. XXII(3), resp. (a) & (b), Liability Convention. Note also that Art. XXII(3) in any event holds member states of the organization liable jointly and severally with the organization itself. 65 See Art. XIV, Liability Convention. 66 Cf. Art. XXII(4), Liability Convention.

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in the courts or administrative tribunals or agencies of a launching State or under another international agreement which is binding on the States concerned.”67 Also the waiver of the requirement of ‘exhaustion of local remedies’,68 normally imposed as the standard in international law before state-to-state claims are allowed with respect to damage privately suffered, testifies to the desire to not unduly obstruct the possibilities for private entities to obtain compensation for damage suffered. It makes it easier for states to indeed take up the interests of a private operator in such a case – but of course this does not amount to any jus standi for the private operator himself with respect to a Claims Commission. Thirdly, in spite of its appearance as a mechanism of arbitration, judgements of the Claims Commission are not automatically binding. They only enjoy that status if both parties to the dispute at the outset have so agreed – which is not that likely to arise in the highly politicized environment of space activities, including satellite communications69; otherwise the decision shall be a “final and recommendatory award, which the parties shall consider in good faith”70. 3.6. National dispute settlement systems Next, a word about national dispute settlement systems. A clear pointer to their potential relevance for satellite communications disputes is already provided for by the aforementioned Liability Convention, as it explicitly

67 Art. XI(2), Liability Convention. 68 Cf. Art. XI(1), Liability Convention. 69 The one occasion where the Liability Convention was at least formally referred to in the context of an international dispute (the Canadian statement of claims in the Cosmos-954 case; see Statement of Claim by Canada; Space Law – Basic Legal Documents, A.IX.2.2) already testifies to such a reticent attitude; although there could be little doubt that the Soviet Union was liable under the Liability Convention for any damage compensable under it caused by the Cosmos-954 satellite in 1978, the final settlement specified that the Soviet Union paid compensation ‘ex gratia’, in other words; not formally accepting such liability. See Protocol Between the Government of Canada and the Government of the Union of Soviet Socialist Republics, done 2 April 1981, entered into force 2 April 1981; 20 ILM 689 (1981); Space Law – Basic Legal Documents, A.IX.2.2.2; in more detail Hurwitz, 113-40; also e.g. L. Viikari, The Environmental Element in Space Law (2008), 40, 46-48. 70 Art. XIX(2), Liability Convention.

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refers to such domestic legal dispute settlement mechanisms as an alternative to its own mechanism.71 Obviously, however, with almost all states in the world being somehow involved in satellite communications it is far beyond the scope of the present paper to address all those domestic dispute settlement systems. At the same time, this characterization of the sector means that in principle any of the dispute settlement mechanisms which are part of the national legal systems could indeed be implicated; and from an abstract perspective they have some general traits in common which may make them less than ideal to solve most satellite communications disputes. Essentially, this stems from their character as being a matter of national law. Following sovereignty over national territory, most of the laws enunciated by a state firstly apply to activities conducted on such territory, and the national court system consequently is entitled to adjudicate disputes on such laws – as much as they would be entitled, subject perhaps to the national private international law regime, to adjudicate disputes on contracts with a substantive connection to that state. Secondly, some national laws may also apply to nationals of the state, regardless of where they were active or concluded their contracts, although both concepts such as lex re sitae and the lack of executive competences within another state may stand in the way of actual enforcement – and sometimes give rise to labels of ‘extraterritorial’ (exercise of) jurisdiction. Still, any settlement of a dispute by such means will almost by definition concentrate on the national elements using national law and regulation, which may only provide a feasible solution in case the dispute itself is also (almost) exclusively of a national nature. Apart from a range of more de facto problems this would entail for any dispute on satellite communications with substantial international aspects, there is one particular legal issue which in turn relates to the large measure of governmental and intergovernmental operations still prevailing in the sector at large – that of sovereign and functional immunities. If foreign governments were implicated in a dispute before a national judge, they would be likely to raise the bar to jurisdiction of sovereign immunity; even if involved in satellite communications of a predominantly

71 See Art. XI(2), Liability Convention.

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commercial nature, there might be many aspects of a sovereignty-sensitive nature involved.72 Intergovernmental organizations such as INTERSPUTNIK73 and ARABSAT74 at least to the extent of their aims, purposes and operations would similarly enjoy functional immunities, recognized at the very least by their own respective member states. With ITSO75, IMSO76 and EUTELSAT IGO77, the same would apply, though likely in a more intricate fashion since those IGOs mainly perform a supervisory function where the actual satellite operations are conducted by the private Intelsat, Inmarsat and Eutelsat. Though strictly speaking this does not concern satellite communications, discussions on liability in the context of satellite navigation have already pointed out that sovereign immunities in the US context may severely limit options for private claimants to be compensated for damage that is the consequence of erroneous or absent GPS signals. Absent specific provisions to

72 In most national jurisdictions the traditional theories of absolute immunity of a sovereign state’s organs in the courts of another state have given way to that of relative immunity, only to be allowed for acta jure imperii, acts reflecting typical and rather exclusive state competencies, but not for acta jure gestionis – more or less acts in a private capacity, even though undertaken by governments. Still, in a considerable number of circumstances an argument could be made acta jure imperii would be at issue. See e.g. H. Fox, International Law and Restraints on the Exercise of Jurisdiction by National Courts of States, in M.D. Evans (Ed.), International Law (2003), 359-71; Shaw, 491 ff. 73 Following its communist origins, where international law theory was very much focused on state sovereignty and rather suspicious of functional immunities, in the case of INTERSPUTNIK any such immunity was subject to member state agreement: “It [INTERSPUTNIK] shall enjoy in the territory of the states whose governments are Members of the Organization the legal capacity necessary for the attainment of its goals and the performance of its functions. The scope of this legal capacity shall be determined by appropriate agreements with the competent authorities of the states in whose territory it carries out its activities”; Art. 9(1), INTERSPUTNIK Agreement. 74 Cf. Art. 16, ARABSAT Agreement: “All the provisions of the Prerogative and Immunities agreement of the League of the Arab States passed as per the League's Council resolution No. 575 dated 10 May, 1953, shall be applicable in the case of the Arab Corporation for space communication”. 75 Cf. Art. XIII, ITSO Agreement. 76 Cf. Art. 9(5) & (6), IMSO Convention. 77 Cf. Art. XII, Revised EUTELSAT Convention.

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the contrary, any claim for public liability against the US government would be inadmissible under sovereign immunity.78 By way of exceptions to the rule, precise regulations then exist which provide for circumstances where the sovereign immunity of the US government is or might be waived. The relevant US regulations for the present purpose would be the Federal Tort Claims Act79, the Suits in Admiralty Act80, the Foreign Claims Act81 and the Military Claims Act82. Generally speaking, it is rather uncertain however that either of these acts could be used for the successful assertion of claims regarding GPS failures and consequent damages, and as a result claims for US public liability for GPS might easily fail.83 For example, the Federal Tort Claims Act does not apply in case of “any claim arising in a foreign country”.84 Or, the Suits in Admiralty Act applies only if “the accident (1) arose on the high seas or navigable waters of the United States; (2) posed a potential threat to maritime commerce; and (3) was substantially related to traditional maritime activity.”85 Moreover, in view of the global application of GPS the problem of nonUS citizens claiming for compensation at US courts would remain. From a practical (and political) point of view, such claims would require the claimant to travel to the United States, introduce his claim in English to US courts, possibly hire a US lawyer and suchlike. There would be no fundamental legal impediment for non-US citizens to do so, but in practice it might turn out to be rather difficult to assert one’s claims. Furthermore, one may consider a claim before a US court against the US government for damage resulting from the usage of signals provided for free not a very promising venue in terms of possible success.

78 “Sovereign immunity” is defined as “preclud[ing] litigant from asserting an otherwise meritorious cause of action against a sovereign or a party with sovereign attributes unless sovereign consents to suit”; Black’s Law Dictionary, 1252; West’s Law & Commercial Dictionary in Five Languages, Vol. II, 552; referring to Principe Compania Naviera, S.A. v. Board of Com’rs of Port of New Orleans, D.C.La., 333 F.Supp. 353, 355. 79 Federal Tort Claims Act, 28 U.S.C., §§ 1346(b), 2671-2680 (1988). 80 Suits in Admiralty Act, 46 U.S.C. App., §§ 741-752 (1988). 81 Foreign Claims Act, 10 U.S.C., § 2734 (1994). 82 Military Claims Act, 10 U.S.C., § 2733 (1994). 83 See e.g. J.M. Epstein, Global Positioning System (GPS): Defining the Legal Issues of its Expanding Civil Use, 61 Journal of Air Law & Commerce (1995), 262-68. 84 Federal Tort Claims Act, § 2680(k); see also Epstein, 265. 85 Under the so-called ‘Sisson test’, Sisson v. Ruby 497 U.S. 358 (1990) as dealt with by Epstein, 266.

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Lastly, it could certainly be doubted whether other governments – which would ultimately be held (at least) responsible for the safety of aviation in their own airspace86 – would agree to sue in a private capacity within the US legal and jurisdictional order. This obviously was the main reason for such states in the ICAO context to propose a relevant treaty on GNSS liability should be drafted.87 It should be mentioned for completeness’ sake that if the damage occurs in another jurisdiction than that of the United States, in principle it might be possible to claim for damages against the GPS providers in courts of such jurisdictions. In practice however, apart from political considerations and issues of evidence, already the ‘option’ for the United States not to waive its sovereign immunity would make any such possibility a theoretical one. While, as said, satellite navigation legal issues play out largely outside of the legal framework for satellite communications properly speaking, there would be sufficient overlap and commonality for the above to be potentially applicable in international satellite communication disputes before a domestic court or other – and thus testify to the complications of doing so. 3.7. International arbitration Many of the shortcomings referred to above are closely related to the essence of a judicial dispute settlement system: a rather inflexible system allowing for very little party autonomy for example in key areas as regards involving judges with specific relevant know-how – since courts are never constituted by parties to a particular dispute once that dispute requires settlement by legal means – and the applicable law – which is equally prescribed upfront. When the benefits of this ‘inflexibility’ – such as the stability and coherence in jurisprudence, methodology and applicable law – are not perceived to outweigh the disadvantages, often international arbitration comes in. Alongside some other differences, the main distinctive traits as compared to judicial settlement are precisely the possibility for parties to co-decide on the arbitrators that are to decide a case, and to co-determine the applicable law. Most closely related to the PCA Rules on Outer Space Disputes in this

86 See Art. 28, Chicago Convention; also F.P. Schubert, An International Convention on GNSS Liability: When Does Desirable Become Necessary?, 24 Annals of Air and Space Law (1999), 252-4. 87 See e.g. Schubert, 258-61.

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respect are the 2010 UNCITRAL Arbitration Rules88 and the PCA Rules on Environmental Disputes89, which is also why the PCA Rules on Outer Space Disputes have used those two sets of rules as point of departure.90 Even those two sets of rules, however – apart from more generic drawbacks such as the relative lack of stability and coherence referred to above – suffer from a few characteristics which may make them less than optimal for the solution of space law disputes. The most important is that any arbitration rules (general ones as much as the environmental or other sector-specific ones) would also encounter difficulties in properly reflecting all aspects in the typical mix encountered in the context of space activities: highly public, political and security-related aspects (much more so than even in the environmental dispute context, let alone the more familiar standard arbitration systems) alongside increasingly commercial and other more mundane aspects, as well as the need, more prominent than in almost any other sector of international relations, to understand technological and operational issues. Consequently, for example those other pre-existing arbitration regimes would offer little opportunities to ensure confidentiality of information which could be desirable either from a security91 or from a commercial92 perspective. Also the highly desirable option to involve various categories

88 UNCITRAL Arbitration Rules (as revised in 2010); accessible through http://www .uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html. 89 PCA Optional Rules for Conciliation of Disputes Relating to Natural Resources and the Environment (hereafter PCA Rules on Environmental Disputes); accessible through http://www.pca-cpa.org/showpage.asp?pag_id=1188. 90 See Introduction, PCA Rules on Outer Space Disputes. 91 The international character of space activities would in many instances give rise to international traffic in dual-use technology which could trigger export controls and, if violated, severe sanctions. While at the international level the Wassenaar Arrangement itself does not provide for a binding regime including sanctioning, the US ITARs and in the European Union the national export control regimes operating within the parameters of Regulation No. 388/2012/EU do provide for binding rules and severe sanctions in case of violations. Since the export of technology is normally very broadly defined, as including for example the mere exchange of technological information and know-how, divulging such information in an international arbitration setting may easily trigger the application of such regimes. 92 This refers in particular to trade secrets and patent issues, where in a given dispute the necessity to share such commercially-critical information with the tribunal and the opposing party (for purposes of fair trial) clashes with the desire to exclude any access by (potential) competitors and the general public (through published awards) to such information.

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of experts was not considered sufficiently facilitated.93 Nevertheless, both the UNCITRAL Arbitration Rules and the PCA Rules on Environmental Disputes were used as points of departure for the PCA’s initiative to draft special rules for space disputes. 4. The PCA Rules on Outer Space Disputes 4.1 Background and rationale The PCA Optional Rules for Arbitration of Disputes Relating to Outer Space Activities were adopted on 6 December 2011 during a special session of the PCA Administrative Council of member states – currently numbering 11594. This adoption followed a process of some three years, in which the Secretary-General of the PCA, Mr. Christiaan Kröner, undertook a preliminary assessment of the need and desirability of establishing such a specific set of rules and then established an Advisory Group under the chairmanship of Judge Fausto Pocar to draft such rules for the purpose of presentation to the Administrative Council. The rationale for establishing this specific set of rules was provided as follows: “These Rules are based on the 2010 UNCITRAL Arbitration Rules with changes in order to: (i) reflect the particular characteristics of disputes having an outer space component involving the use of outer space by States, international organizations and private entities; (ii) reflect the public international law element that pertains to disputes that may involve States and the use of outer space, and international practice appropriate to such disputes; (iii) indicate the role of the Secretary-General and the International Bureau of the Permanent Court of Arbitration (PCA) at The Hague; (iv) provide freedom for the parties to choose to have an arbitral tribunal of one, three or five persons; (v) provide for establishment of a specialized list of arbitrators mentioned in article 10 and a list of scientific and technical experts men93 Cf. Introduction, PCA Rules on Outer Space Disputes. 94 Technically speaking, this concerns the total number of states having ratified either the 1899 or the 1907 founding conventions; the Convention for the Pacific Settlement of International Disputes, The Hague, done 29 July 1899, entered into force 4 September 1900; ATS 1901 No. 130; resp. the Convention for the Pacific Settlement of International Disputes, The Hague, done 18 October 1907, entered into force 26 January 1910; ATS 1997 No. 6. See http://www.pca-cpa.org/showpage.asp?pag_id =1038.

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tioned in article 29 of these Rules; and (vi) provide suggestions for establishing procedures aimed at ensuring confidentiality. The Rules are optional and emphasize flexibility and party autonomy. For example: (i) The Rules, and the services of the Secretary-General and the International Bureau of the PCA, are available to States, international organizations, and private parties; and (ii) The Rules may be used, inter alia, in relation to disputes between two or more States parties to a multilateral agreement relating to the use of or access to outer space concerning the interpretation or application of that agreement. Where arbitrations deal with technical questions, provision is made in article 27 for the submission to the arbitral tribunal of a document agreed to by the parties, summarizing and providing background to any scientific or technical issues that the parties may wish to raise in their memorials or at oral hearings. A model clause that parties may consider inserting in treaties or other agreements to provide for arbitration of future disputes, and a model clause for arbitration of existing disputes are set forth in the annex to these Rules.”95 The present contribution does not purport to deal in great detail with the Rules on Outer Space Disputes96 but rather highlights the most salient aspects as following from the earlier survey of existing dispute settlement mechanisms as well as the above rationale. 4.2 Fundamental scope of the rules The first such point concerns the flexibility desired to avoid discussions on whether a dispute on satellite communications would address only the ‘inspace’ aspects (so that for example the Liability Convention’s dispute settlement mechanism could be triggered), only the technical/operational aspects (so that the ITU’s dispute settlement mechanism could be triggered) or only the trade-related aspects (so that the WTO’s dispute settlement mechanism could be triggered). Here, the PCA Rules leave it completely to the parties to avail themselves of the Rules. The legal basis for the dispute is irrelevant; using the Rules for “disputes between [parties] in respect of a defined legal relationship, whether

95 Introduction, PCA Rules on Outer Space Disputes, p. 4. 96 See also e.g. F. Pocar, An Introduction to the PCA’s Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, 38 Journal of Space Law (2012), 171-85.

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contractual or not” is dependent solely upon agreement between the two parties involved. 97 Even more fundamentally: “The characterization of the dispute as relating to outer space is not necessary for jurisdiction where parties have agreed to settle a specific dispute under these Rules.”98 Thus, the Rules avoid the difficult issue of what constitutes ‘space activities’: activities conducted in space (whether by humans physically in space or basically guided from Earth), activities directed at or aimed at space (such as launching activities, which may even fall short of actually entering the area of outer space), and/or activities dependent on space activities (such as the sale of remote sensing data or the terrestrial use of satellite navigation). Thereby, it also avoids the difficult discussion on where ‘outer space’, as an area, begins.99 As is quite usual under arbitration rules, agreement by a party to arbitrate automatically means that party waives any immunity from jurisdiction it might otherwise invoke, although a waiver of immunity from execution of any arbitral award must be expressed explicitly.100 This is a fundamental clause in any arbitration regime which allows jus standi for both states and non-state actors, as otherwise the principled legal equality of parties to a dispute would be fundamentally jeopardized. Immunity from execution, while also a principled barrier to such legal equality, does require explicit agreement of a state party to a dispute both for practical and for principled reasons. Nevertheless, the assumption is that one way or another a state faced with an award imposing specific obligations for example to pay a fine would in good faith abide by such an award even if immunity from execution had not been waived in that particular case. If failure to satisfactorily allow execution of such an award by a state invoking immunity from execution would give rise to serious injustice, there would then be a residual possibility at least in principle for the state of the victimized non-state party to raise the issue to an international, state-to-state level, and by way of diplomatic protection for example seize the International Court of Justice.101

97 98 99 100 101

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Art. 1(1), PCA Rules on Outer Space Disputes. Art. 1(1), PCA Rules on Outer Space Disputes. Cf. on this issue e.g. supra, text at n. 6. See Art. 1(2), PCA Rules on Outer Space Disputes. See supra, § 3.2.

About the New PCA Rules and their Application to Satellite Communication Disputes

4.3 Establishment and operation of the tribunal The PCA Rules also provide for a set of clauses on how the arbitral tribunal is to be established. Noticeably, the PCA Secretary-General shall act as the appointing authority, using the PCA secretariat and its broad experience with international arbitration as the administrative supporting mechanism for organizing the arbitration.102 The size of the arbitration panel is another area where maximum flexibility was striven for: while the default option would be three arbitrators, other panel-sizes may also be opted for with a five-arbitrator panel being mentioned explicitly but no size a priori being excluded.103 Thus, if the technical, operational or political complexity of a case so warrants, also seven- or nine-member panels could be established. The PCA Secretary-General provides the fall-back option for nominating arbitrators if the parties to the dispute fail to meet the deadlines for making their appointments.104 The PCA also facilitates the use of the Rules by providing a list of legal experts which qualify and have indicated their willingness to serve as arbitrators – as options for parties to disputes who may not feel comfortable in looking for arbitrators on their own.105 The PCA Rules contain the ‘usual’ clauses on obligatory disclosures by arbitrators of circumstances potentially inhibiting their impartiality, on possible challenges of arbitrators on such grounds by any of the parties to the dispute, and the procedure for replacement, if necessary.106 The Rules also provide for a full waiver of the liability of arbitrators and, more extensively, of “any person appointed by the arbitral tribunal” for “any act or omission” connected to arbitration.107 The addition of other persons than the arbitrators themselves refers in particular to expert witnesses and the confidentiality adviser, the need for which may as argued be particularly prominent in many space activities-related disputes.108

102 103 104 105 106 107 108

See Art. 6(1), also (2) & (3), PCA Rules on Outer Space Disputes. See Artt. 7-10, PCA Rules on Outer Space Disputes, esp. Artt. 7(1), 10(2). Cf. Artt. 7(2), 8(1),(2), 9(2), (3), PCA Rules on Outer Space Disputes. See Art. 10(4), PCA Rules on Outer Space Disputes. See resp. Artt. 11, 12, 14, PCA Rules on Outer Space Disputes. Art. 16, PCA Rules on Outer Space Disputes. See further infra, § 4.6.

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4.4 Major procedural provisions With respect to the procedure, also the arbitrators are handed a large measure of discretion, as “the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case”.109 Similarly with regard to allowing third parties to join the proceedings the arbitrators enjoy the ultimate competence to decide: “The arbitral tribunal may, at the request of any party, allow one or more third persons to be joined in the arbitration as a party provided such person is a party to the arbitration agreement, unless the arbitral tribunal finds, after giving all parties, including the person or persons to be joined, the opportunity to be heard, that joinder should not be permitted because of prejudice to any of those parties. The arbitral tribunal may make a single award or several awards in respect of all parties so involved in the arbitration”. 110 The only non-discretionary precondition for such joinder, the need for the third party to be party to the arbitration agreement, serves as a guarantee – with a view to the potential complexity of cases in terms of potentially afflicted parties, subject matter and applicable law – that such a third party would also be formally and fully aware of the way the arbitration is going to be handled, and its rights and obligations following from such joinder. This notably also includes the novelty the Rules on Outer Space Disputes provide as compared to other arbitration mechanisms, giving rise to the concept of the ‘confidentiality adviser’. Here, a rather special procedure caters for the presumed occasional need to respect confidentiality, exceptionally even secrecy, in the context of commercial or security-sensitive information. Firstly, a party may call for information to be classified as ‘confidential’.111 The Tribunal then decides on whether such classification would actually be granted, on the assumption that “the absence of special measures of protection [of information requested to be tagged confidential] in the proceedings would be likely to cause serious harm to the party or parties invoking its confidentiality”.112 It then also decides “under what conditions and to whom the confidential information may in part or in whole be dis-

109 110 111 112

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About the New PCA Rules and their Application to Satellite Communication Disputes

closed and shall require any person to whom the confidential information is to be disclosed to sign an appropriate confidentiality undertaking”.113 In the alternative – and this is the real novelty – the Tribunal may, at the request of either party or also proprio motu, appoint a ‘confidentiality adviser’, an independent expert, “in order to report to it on the basis of the confidential information on specific issues designated by the arbitral tribunal without disclosing the confidential information either to the party from whom the confidential information does not originate or to the arbitral tribunal”.114 This clause walks a thin line between the need to accommodate the supreme interest of one party or the other to keep certain information confidential to such an extent that it determines its willingness to submit to arbitration and the due process requirement that opposing parties should be allowed to have access to information used for making judgemental decisions in particular disputes. Whether the line is so thin as to actually break, is currently a matter of conjecture, and will remain so unless tested in cases invoking the Rules as well as the confidentiality clauses. 4.5 Applicable law With regard to the applicable law, the Rules provide that “the arbitral tribunal shall apply the law or rules of law designated by the parties as applicable to the substance of the dispute”.115 If no such designation has occurred, the arbitrators are to apply the national and/or international law rules they determine to be appropriate.116 Also deciding “as amiable compositeur or ex aequo et bono” is only an option for the Tribunal if parties have expressly authorized such a ground for decisions.117 If a contract is involved in the dispute, the Tribunal “shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction”.118 ‘Usage of trade’ refers to such non-legal, semi-legal or meta-legal concepts as best practices, standards of behaviour and guidelines, which –

113 114 115 116 117 118

Art. 17(7), PCA Rules on Outer Space Disputes. Art. 17(8), PCA Rules on Outer Space Disputes. Art. 35(1), PCA Rules on Outer Space Disputes. See Art. 35(1), PCA Rules on Outer Space Disputes. Art. 35(2), PCA Rules on Outer Space Disputes. Art. 35(3), PCA Rules on Outer Space Disputes.

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certainly in the absence of specific substantive ‘hard law’ on the issue – may come to serve as yardsticks for whether legally binding standards regarding ‘reasonableness’ and ‘good faith’ are complied with.119 4.6 Issues of evidence and expertise In the general analysis above, attention was drawn to the large measure of technicality and the resulting needs to provide for proper evidentiary rules and involvement of experts. Here, it is obviously for the Tribunals to decide on “admissibility, relevance, materiality and weight of the evidence offered”.120 If considered appropriate, non-technical documents may be requested by the arbitrators from the parties to explain certain pieces of information.121 Finally, of course, experts on scientific or technical matters may be called upon by the Tribunal after consulting the parties, which may be challenged by any of the parties.122 Also here the PCA will play its facilitating role, in drawing up a list of such scientific, technical and/or operational experts, although once again the freedom remains to call upon experts outside of such a list.123 4.7 Measures and awards The Tribunal can impose interim measures at the request of one of the parties.124 ‘Interim measures’ are defined as “any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to: (a) Maintain or restore the status quo pending determination of the dispute; (b) Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the 119 Cf. for an enlightening discussion of this issue e.g. I. Marboe, The Importance of Guidelines and Codes of Conduct for Liability of States and Private Actors, in Soft Law in Outer Space (Ed. I. Marboe)(2013), 119-44. 120 Art. 27(5), PCA Rules on Outer Space Disputes. 121 See Art. 27(4), PCA Rules on Outer Space Disputes. 122 See Art. 29(1) resp. (3), PCA Rules on Outer Space Disputes. 123 See Art. 29(7), PCA Rules on Outer Space Disputes. 124 See Art. 26(1), PCA Rules on Outer Space Disputes.

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arbitral process itself; (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) Preserve evidence that may be relevant and material to the resolution of the dispute.”125 In other words, as is normal in regard of interim measures, the tribunal should weigh the interests of a claiming party in not seeing any possible favourable outcome – which consequently should prima facie be a realistic possibility – prejudiced by irreversible events and the interests conversely of a defending party in not seeing any possible favourable outcome to that party being prejudiced. Like any true arbitrary award – and differently, for example, from the Liability Convention’s Claims Commission mechanism – also awards of the Tribunal under the PCA Rules on Outer Space Disputes are “final and binding on the parties”, unless a ‘simple’ error is detected afterwards which may then be corrected.126 Awards will be decided by majority if there is more than one arbitrator.127 Separate awards are possible if circumstances so warrant in the view of the Tribunal.128 Unless parties have decided otherwise, the reasons for the award will be provided by the Tribunal.129 Requests for (further) interpretation of an award can be honoured.130 Finally, additional awards may also be requested by the parties, such requests to be honoured at the discretion of the Tribunal.131 4.8 Costs Finally, the PCA Rules on Outer Space Disputes provide for important directions on the costs of the arbitration procedure. Default allocation of those costs is to the ‘unsuccessful’ party or parties; as it is, however, often not that clear-cut whether both parties may be considered at least partly ‘unsuccessful’, the Tribunal may also provide for apportionment of those costs otherwise.132 Costs in this respect “include (…) only: (a) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the 125 126 127 128 129 130 131 132

Art. 26(2), PCA Rules on Outer Space Disputes. Art. 34(2), resp. Art. 38, PCA Rules on Outer Space Disputes. See Art. 33(1), PCA Rules on Outer Space Disputes. See Art. 34(1), PCA Rules on Outer Space Disputes. See Art. 34(3), PCA Rules on Outer Space Disputes. See Art. 37, PCA Rules on Outer Space Disputes. See Art. 39, PCA Rules on Outer Space Disputes. See Art. 42(1), PCA Rules on Outer Space Disputes.

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tribunal itself in accordance with article 41; (b) The reasonable travel and other expenses incurred by the arbitrators; (c) The reasonable costs of expert advice and of other assistance required by the arbitral tribunal; (d) The reasonable travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal; (e) The legal and other costs incurred by the parties in relation to the arbitration to the extent that the arbitral tribunal determines that the amount of such costs is reasonable; (f) The fees and expenses of the International Bureau, including the fees and expenses of the appointing authority.”133 5. Concluding Remarks The PCA Rules on Outer Space Disputes offer, as compared to the existing and applicable dispute settlement mechanisms, the most comprehensive coverage of all aspects of satellite communications, and hence of all possible disputes regarding such activities. Through various mechanisms it takes into account terrestrial aspects versus space aspects, national law and jurisdiction versus international law and the ‘global commons’ character of outer space, the various categories of actors and stakeholders, public as well as private (and including any contractual law issues), and finally the technological and operational complexities of the sector – each at least as well as, and often more efficiently and coherently than those other mechanisms briefly recounted here. Flexibility for the tribunal as well as the parties, and party autonomy, are truly maximized by way of such provisions as allowing the parties the ultimate decision on whether to use the Rules or not, on the size of the arbitral tribunal and on applicable law, within a coherent system. Ample room is also offered for taking the technological and operational complexities into due consideration. The only serious caveat relates to the confidentiality adviser; it remains to be seen whether the best here would indeed have been the enemy of the good, or whether this procedural novelty causes more damage to the due process than it helps bring about solutions of intricate satellite communications disputes.

133 Art. 40(2), PCA Rules on Outer Space Disputes.

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Bibliography Goh, G., Dispute Settlement in International Space Law (2007). Lyall, F., International Communications (2011). McCormick, P. (Ed.), The Transformation of Intergovernmental Satellite Organisations: Policy and Legal Perspectives (2013). Peck, C. & R.S. Lee (Eds.), Increasing the Effectiveness of the International Court of Justice (1997), 445-65. Pocar, F., An Introduction to the PCA’s Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, 38 Journal of Space Law (2012), 171-85. Von der Dunk, F.G., Space for Dispute Settlement Mechanisms – Dispute Resolution Mechanisms for Space?, in Proceedings of the Forty-Fourth Colloquium on the Law of Outer Space (2002), 442-52.

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Dispute Settlement in Space: The Perspective of the European Space Agency Ioanna Thoma*1

Abstract The contribution describes ESA’s experience in the anticipation, avoidance and settlement of disputes. After a short description of the Agency’s activities, the paper focuses on the arbitral mechanisms for the resolution of disputes provided in the ESA Convention. The ensuing analysis focuses on the differences between the two types of arbitration foreseen in the ESA Convention. The next section presents a recent ruling by the Court of Appeals for the Third Circuit that applied restrictive immunity to ESA as an international organisation. In this paper, it is argued that the decision of the court was erroneous and the case for the absolute functional immunity of international organisations is made. 1. Introduction The purpose of ESA is to provide and promote, for exclusively peaceful purposes, cooperation among European states in space research and technology and their space applications with a view to their being used for scientific purposes and for operational space applications systems.2 The collaborative spirit of the ESA Convention underpins its implementation as well as the adoption and application of the various rules and regulations applicable to all aspects of ESA’s activities. In this respect, it is fair to state that ESA is a dispute-averse organisation with a strong conciliatory culture in

* LLM(HLS), MSt(Oxon), Legal Department, European Space Agency. 1 The opinions expressed in this paper are personal and do not reflect in any way the official position of the European Space Agency. 2 Article II of the Convention for the Establishment of a European Space Agency, Paris, 30 May 1975 entered into force 30 October 1980, 14 I.L.M (1975) 864 (hereinafter referred to as the “ESA Convention”).

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the dealings among its Member States as well as in the relationships between the Agency and the industry. In the 40-year long history of ESA, few disputes have arisen and most of them have been settled through the dispute resolution mechanisms foreseen in the ESA Convention. Only exceptionally did some disputes end up before national courts and this was in deviation from the rules of the Agency.3 It is worth noting at this point that the Convention establishing the predecessor organisation of ESA, the European Space Research Organisation (ESRO), provided in article XVI4 that disputes not settled by the good offices of the ESRO Council had to be submitted to the International Court of Justice unless the Member States concerned agreed on some other mode of settlement.5 In this way the adjudication model provided in the ESRO Convention underlined the inter-state nature of the ESRO organisation which belonged to the category of technical, regional (i.e., non-universal) organisations6 where cooperation was conceived and deployed within the confines of the established rules of public international law. However, a shift was marked with the adoption of the ESA Convention. In the following sections, the analysis will focus on the arbitral resolution of disputes as provided by the ESA Convention as a corollary to the enjoyment of immunities by the organisation. Employment disputes submitted to the internal organs of ESA do not fall within the scope of this contribution as they are not subject to arbitration and, as such, will not be addressed. 2. ESA’s Activities under the Convention ESA’s activities encompass a wide range of dealings in the spheres of private law as well as public international law. Every year ESA concludes more than a thousand contracts governed by a variety of different applicable laws.

3 See for example the case of Waite and Kennedy v Germany, Application no. 26083/94, 18 February 1999, European Court of Human Rights. 4 Convention for the Establishment of a European Space Research Organisation, 14 June 1962, Paris, 6258 U.N.T.S. (1965) 35. 5 Ulrike M. Bohlmann, Experience of the European Space Agency with dispute settlement mechanisms, in Arbitration in air, space and telecommunications law – Enforcing regulatory measures (edited by The International Bureau of the Permanent Court of Arbitration, Kluwer Law International 2002), 158, 157-160. 6 René-Jean Dupuy, Manuel sur les organisations internationales/Handbook on International Organisations (2nd ed. Martinus Nijhoff Publishers 1998) 14-19.

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Usually the law governing the contract is the law of the place where the seat of the company is located, which is, in most cases, in an ESA Member state. In large part these contracts are concluded with the space industry and concern the manufacturing and construction of space infrastructure for space applications, and the development of space-related software and hardware as well as licensing agreements. Contracts are also entered into for the procurement of goods and services for the Agency or the administrative support of the Agency’s activities. In parallel, ESA negotiates and concludes many bilateral or multilateral agreements with other international organisations, international agencies, public institutions, governments or government agencies of ESA Member and non-Member states. These agreements can take various forms, namely fully-fledged agreements, arrangements, memoranda of understanding, exchange of letters and others.7 The purpose of these agreements can be the cooperation with an international or national actor on a common project, the coordination of pre-existing activities with a view to achieve optimized outcomes or the exchange of information, expertise and data. As a general rule, funds are not exchanged between the partners with the exception of large co-funded projects with the European Union, such as Galileo and Copernicus (formerly known as GMES), or with Eumetsat on the development of new meteorological satellites. 3. Arbitral Resolution of Disputes in the ESA Convention Drawing from past experience of the ESRO Convention and reflecting the influence of the modern trends in dispute resolution, the drafters of the ESA Convention shifted from the ICJ adjudication towards the more flexible and tailored mechanism of the arbitral resolution of disputes. As a result, the ESA Convention provides for two distinct types of arbitration. The first one is set out in article XVII of the ESA Convention and should be read together with article XXVI of Annex I of the ESA Convention. Article XVII concerns the arbitration procedure in case of disputes between two or more Member States, or between any of them and ESA, concerning the interpretation or application of the ESA Convention or its annexes, as

7 André Farand, The European Space Agency’s experience with mechanisms for the settlement of disputes, in Arbitration in air, space and telecommunications law – Enforcing regulatory measures (edited by The International Bureau of the Permanent Court of Arbitration, Kluwer Law International 2002), 146, 145-156.

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well as disputes arising out of damage caused by ESA, or involving any other non-contractual responsibility of ESA (article XXVI of Annex I), which are not settled by or through the Council. The second category is described in article XXV of Annex I of the ESA Convention, which provides for the arbitral resolution of disputes arising out of written contracts other than those concluded in accordance with the Staff Regulations. Both types of arbitration are premised on the principle set out in article I of Annex I, according to which the Agency shall have legal personality, in particular the capacity to contract, to acquire and to dispose of movable and immovable property, and to be a party to legal proceedings. Further it is important to note that the provisions on arbitration mentioned above are coupled with an express statement that the Agency shall not enjoy immunity from execution in respect of the enforcement of an arbitration award made under either article XXV of Annex I of the ESA Convention or under article XXVI of Annex I of the ESA Convention (article IV(1)(c) of Annex I of the ESA Convention). Interestingly enough, this clause is quite different from similar international regimes such as article 55 of the ICSID Convention.8 The latter allows states to rely on state immunity from execution which does not in any event alter the fact that non-compliance with an award is a violation of the ICSID Convention and may lead to the usual consequences of State responsibility, including diplomatic protection under Art. 27(1) of the ICSID Convention. Under the ICSID regime, waivers of immunity from execution in respect of non-commercial property of a State are possible either explicitly or implicitly. 4. Differences between the Types of Arbitration in the ESA Convention At first sight, one would get the impression that the two kinds of arbitration differ only in terms of the parties to the dispute and the subject-matter of the dispute. It is true that in arbitrations under article XVII in combination with article XXVI of Annex I of the ESA Convention the parties to the dispute are Member States or the Agency and a Member State. On the other hand, in the arbitrations under article XXV of Annex I of the ESA Convention the parties to the dispute involve the Agency and a private contracting party. It 8 Article 55 of the ICSID Convention provides: “Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution”.

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follows logically that the two categories of arbitration have different subjectmatter. The disputes submitted to arbitration in the former case have a public international law character and concern the interpretation or application of the Convention as well as the distinct matters listed in article XXVI of Annex I already mentioned above.9 On the contrary, the contractual arrangements giving rise to a dispute in the latter case are of private law nature and therefore render these arbitration proceedings similar to those held in international commercial arbitration. The following features further distinguish the two types of arbitration. In terms of applicable procedural law to the arbitration proceedings, article XXV of Annex I of the ESA Convention (on contractual matters) provides for the lex fori of place of the seat of the arbitral tribunal. This provision reflects a rather old-fashioned approach towards the applicable procedural rules in international arbitration. It is true that most national arbitration laws set out a list of rules to regulate arbitration proceedings which are generally mandatory or express public policy.10 However, these rules usually apply to domestic arbitrations and do not cater for international procedures. In addition, according to the more modern arbitration laws11 the parties are free to agree on the procedure to be followed by the arbitral tribunal or, failing such agreement, leave the matter entirely to the arbitrator’s discretion. This explains why a number of international rules for the regulation and harmonisation of the arbitration procedure have emerged.12 That trend is reflected in the arbitration provided in article XVII in combination with article XXVI of

9 These are disputes arising out of damage caused by the Agency, involving noncontractual responsibility of the Agency or concerning the Director General, a staff member or an expert of the Agency and in which the person concerned can claim immunity from jurisdiction under articles XV, XVIa or XVIIa of Annex I, if this immunity is not waived in accordance with article XXI. 10 Julian Lew, Loukas Mistelis, Stefan Kröll, Comparative International Commercial Arbitration (Kluwer Law International The Hague/London/New York 2003) 522. 11 See for example article 19 UNCITRAL Model Law on international commercial arbitration: (1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence. 12 See merely indicatively the UNCITRAL Arbitration Rules or the International Bar Association (IBA) on the taking of evidence in international arbitration.

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Annex I of the ESA Convention which foresees that the applicable procedural rules are determined by Article XVII paras (2) to (6) and additional Rules adopted by the ESA Council. The latter rules were approved by the ESA Council in 198413 and cover issues such as the appointment of the arbitral tribunal, the filing of the request for arbitration and any counterclaims, the fact that the proceedings are conducted in writing, the language of the proceedings, the appointment of experts, the confidential nature of the proceedings and ensuing deliberations, the challenge of the award as well as the repartition of the costs incurred by the parties during the proceedings (Member States or the Agency). In addition, paragraph 5 of article XVII provides that the arbitral tribunal shall determine its seat and establish its own rules of procedure. The contextual interpretation of this clause suggests that the rules established by the arbitral tribunal will not contradict but in fact will complement the Rules adopted by the ESA Council. Inherent with the different parties to the various disputes that may arise under the ESA Convention and the corresponding subject matter of such disputes is also the law applicable to their substance. In the case of arbitrations provided in article XVII in combination with article XXVI of Annex I of the ESA Convention, the law applicable to disputes concerning the interpretation or application of the Convention will be public international law and, in particular, articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties14 determining the rules for the interpretation of international treaties.15 For the cases of damage caused by the Agency or any other noncontractual responsibility there are no codified rules at the level of international law. Depending on the specific facts of each incident the arbitral tribunal will have recourse to, and draw inspiration from, a variety of instruments ranging from public international law, such as the Convention on International Liability for Damage Caused by Space Objects16, to uniform

13 Published as Appendix 7 in: Gabriel Lafferranderie, European Space Agency (Kluwer Law International 2005) 277-281. 14 Done at Vienna on 23 May 1969, entered into force on 27 January 1980, United Nations, Treaty Series, vol. 1155, 331. 15 For a thorough analysis on the application of articles 31 to 33 of the 1969 Vienna Convention on the Law of the Treaties, see: Ulf Linderfalk, On the Interpretation of Treaties – The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Law and Philosophy Library, vol. 83, Springer 2007). 16 Opened for signature on 29 March 1972, after it was adopted by the UN General Assembly in its resolution 2777 (XXVI). It entered into force on 1 September 1972, 961 U.N.T.S. 187 (LIAB).

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conflict of laws rules, such as the Rome II Regulation17 or national private laws of the different Member States, the common principles of which can possibly establish uniform substantive rules governing the non-contractual responsibility and damage caused by tort. On the other hand, the law governing the contractual relationships giving rise to a dispute under article XXV of Annex I of the ESA Convention is the domestic substantive law of one of the ESA Member States. The choice of this applicable law is without prejudice to the privileged status of ESA, as an international organisation, as contained in the ESA Convention and especially its Annex I. Another distinguishing feature is the intervention of third parties to the proceedings. In arbitrations under article XVII in combination with article XXVI of Annex I of the ESA Convention it is foreseen that Member States or the Agency, not being parties to the dispute, may intervene in the proceedings with the consent of the arbitral tribunal if the latter considers that they have a substantial interest in the decision of the case. On the other hand, such provision is not made in the Convention for the arbitrations under article XXV of Annex I of the ESA. However, as the various arbitral rules have evolved through time it can be argued that this distinguishing feature has become less pertinent. In the great majority of contracts entered into by ESA and a private party there is a provision for the arbitral resolution of disputes under the ICC Rules of Arbitration or the LCIA Arbitration Rules. Both sets of rules currently provide for the possibility of adding a third party to the proceedings.18 This is an important possibility in the hands of the parties to a dispute, especially in the field of space manufacturing where there is a significant number of sub-contractors down the development chain, even if it has been restrictively applied so far.19

17 Regulation No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), L199/40, 31.7.2007. 18 See article 21(1)(h) LCIA Arbitration Rules stating that an arbitral tribunal has the power to join a third party to the proceedings provided any such third person and the applicant party have consented thereto in writing. Article 7 ICC Rules of Arbitration provides that a party to the proceedings can submit a request for a joinder at the Secretariat of the ICC before the confirmation or appointment of any arbitrator, unless all parties, including the additional party, otherwise agree. 19 During the revision of the UNCITRAL Rules of Arbitration the LCIA informed the UNCITRAL Secretariat that applications for joinder under article 21(1)(h) of the

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In terms of the review of the arbitral award, article XVII(6) of the ESA Convention stipulates that in the event of a dispute as to the meaning or scope of an award made under this article, the arbitration tribunal shall interpret it at the request of any party to the dispute. This mechanism does not establish an appeal or a procedure for the setting aside of an award. The particularity of this mechanism lies in that appeals normally involve a new hearing of the dispute and the board of appeal may confirm, vary, amend or set aside the award of the tribunal.20 In the ESA Convention, however, it is not a new organ which is seized of the request submitted for the review of the award and secondly, the scope of such review is merely limited to the interpretation of the award. In this respect it is remininscent of article 35 of the ICC Rules of Arbitration or article 37 of the UNCITRAL Arbitration Rules. The interpretation of an award by the tribunal will be recorded in an additional award issued by the arbitral tribunal seized of the dispute. On the other hand, awards made under article XXV of Annex I of the ESA Convention are open to challenge according to the law of the place where the arbitral tribunal has its seat unless otherwise agreed by the parties.21 The challenge consists of the request to set aside the award and the grounds laid down for challenging an award are often comparable with the grounds referred to in the 1958 New York Convention on the recognition and enforcement of foreign arbitral awards.22

LCIA Rules of Arbitration had been made only in ten cases since that provision was introduced in 1998. The Swiss Arbitration Association also mentioned that not even a single application had been made under a similar provision in the Swiss Rules of International Arbitration. See: Settlement of Commercial Disputes – Revision of the UNCITRAL Arbitration Rules, note by the Secretariat, A/CN.9/WG.II/WP.151 (Working Group II, 49th session) para. 37. 20 See for example article 12 of the GAFTA Arbitration Rules. 21 Nigel Blackaby and Constantine Partasides, Redfern and Hunter on International Commercial Arbitration (5th edition Oxford University Press 2009) 10.20-10.27. 22 Entered into force on 7 June 1959, published in 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 38.

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5. Dispute Resolution Clauses in the Practice of ESA Continuing the work previously undertaken by André Farand23 which covered the agreements concluded in the period 1998-2000, the focus in the present contribution has been on the instruments adopted from 2001 until early 2013. There is one common trend that continues to be relevant in the agreements, memoranda of understandings, arrangements concluded between ESA and other international organisations, Member States or governmental agencies and bodies of Member and non-Member States: the inclusion of arbitration and more frequently escalation clauses. The latter usually provide at first instance the resolution of any issue arising out of the application of the agreement via consultation between the parties. If the consultation mechanism fails, the issue is deemed to be turned into a dispute and therefore subject to resolution by an arbitral tribunal. With the exception of agreements made with NASA,24the great majority of the public international law instruments follow this example. In several of these clauses, one finds that the President of the International Court of Justice or the Secretary General of the Permanent Court of Arbitration may be asked to nominate the third arbitrator in case of disagreement on this matter between the parties or their respectively appointed arbitrators.25 Interestingly enough, despite the non-commercial character of the disputes arising out of these instruments, there are numerous clauses that adopt the model arbitration clause and applicable set of rules of the International Chamber of Commerce. At this point it should be noted that ESA has never been involved in arbitral proceedings with any of its institutional partners. Besides the fact that consultation proceedings seem to be the appropriate means of addressing matters in a generally heavily politicised domain, some other features of these agreements indicate the intention of the parties to avoid disputes. For example, nearly every agreement includes a clause on the cross-waiver of liability. This clause has become a standard term in the high-risk space and 23 André Farand, The European Space Agency’s experience with mechanisms for the settlement of disputes, in Arbitration in air, space and telecommunications law – Enforcing regulatory measures (edited by The International Bureau of the Permanent Court of Arbitration, Kluwer Law International 2002), 150-151, 145-156. 24 For more on the background see André Farand’s contribution at 152-153. 25 Litigation connected to the arbitral proceedings such as for the establishment of the tribunal is not subject to the rule of article IV.1(c) of Annex I of the ESA Convention. See the opposite conclusion: Paris Court of Appeal 19 June 1998, Unesco v Boulois, Revue d’arbitrage (1999) 343 and note by Charles Jarrosson.

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aeronautical activities after it was first used in the context of the Intergovernmental Agreement for the International Space Station in order to encourage participation in the exploration and use of outer space through the Space Station.26 A cross-waiver of liability can vary from a basic to an extremely sophisticated clause that can include several detailed exceptions such as injury, impairment of health or death of a person, intellectual property rights, or damage caused by wilful misconduct. Further, the clause usually requires the application of a flow-down of liability throughout the chain of the parties’ contractors and sub-contractors. The main purpose of the clause is to reduce the scope and number of claims potentially brought between the parties in order to facilitate the taking of risks in the context of highly technological projects. By the same token, vis-à-vis the totality of the international community, which includes its partners as well as its non-contracting parties, ESA has acknowledged in 197627 and complemented in 200028 its liability as a launching state under the 1972 Liability Convention.29 In this respect, ESA adhered to the internationally recognised standards regarding the liability arising out of space activities and contributed, thus, to the consolidation of legal certainty in the legal environment in which space activities take place.30 When it comes to disputes arising out of the contracts ESA concludes with its private partners, the mainstream choice for an arbitral set of rules is primarily those of the International Chamber of Commerce and occasionally the London Court of International Arbitration Rules. This is explained by the fact that ESA’s counter-parties are more familiar with these rules from

26 48 CFR 1852.228-76 – Cross-waiver of liability for space station activities at: http:// www.law.cornell.edu/cfr/text/48/1852.228-76. 27 ESA Declaration deposited on 20 September 1976 accepting the Convention on International Liability for Damage Caused by Space Objects of 29 March 1972 to which all ESA Member States are parties. 28 Article XIV of the Convention on International Liability for Damage Caused by Space Objects provides that a Claims Commission should settle the dispute if no settlement can be reached through diplomatic negotiations. However, Article XIX. 2 of this Convention stipulates that the Commission’s decisions are only binding if the parties have so agreed. Otherwise, the decisions are only to be considered in good faith. ESA’s Declaration dated 21 June 2000 recognised the Claims Commission awards as binding on the basis of reciprocity and, by this, removed a loophole in international law. 29 Convention on International Liability for Damage Caused by Space Objects of 29 March 1972 (961 UNTS 187). 30 André Farand’s contribution at 154.

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their regular commercial activities. So far, no arbitration proceedings have been initiated that ultimately led to the issue of an arbitral award under a contract. The conciliatory premise upon which the Agency is based renders it dispute-averse and more inclined to reach a settlement with the other party before engaging in arbitral proceedings. 6. An Exceptional Case: OSSN vs ESA, Court of Appeals 3rd Circuit In the long history of ESA’s activities, there is only one case that resulted in a ruling against ESA’s immunities before state courts. The factual background of the case is as follows. Between 1996 and 2004, ESA contracted with OSSN, a New Jersey corporation, to provide it with, among other things, software tools and related proprietary software and information to assist ESA in developing its own software. The parties executed four sets of license agreements and corresponding software maintenance agreements. The first set of these agreements, dated February 7, 1996, provided that “any dispute which cannot be settled amicably shall be submitted to arbitration. The arbitration proceedings shall take place in Princeton (New Jersey) in accordance with the rules of the International Chamber of Commerce.” The subsequent agreements, however, contained a different forum selection clauses stipulating that the “agreement shall be governed by the laws of the state of New Jersey and [that ESA] expressly submits to jurisdiction therein... and agrees that any dispute arising out of this agreement shall be subject exclusively to the jurisdiction of New Jersey courts or the Federal court for the district of New Jersey”. The deviation from the rules under the ESA Convention that provide for the arbitral resolution of such disputes (article XXV of Annex I of the ESA Convention) was not intended. It was an oversight, the legal implications of which led to the challenge of the privileges and immunities granted to ESA as an international organisation in Annex I of the ESA Convention. It should be underlined at this point that the very existence of the arbitral mechanism for the resolution of disputes in the ESA system is complementary to the immunity from jurisdiction and execution the Agency enjoys. A dispute arose between the parties regarding the alleged breach of the agreements by ESA, and OSSN decided to bring a claim before the state courts of New Jersey. In the United States, ESA falls under the scope of the

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1945 International Organizations Immunities Act (IOIA)31 applying to those international organizations which the President designates as entitled to the benefits of the Act. The District Court found that ESA enjoyed absolute immunity32 but could be held as having expressly waived it in order to participate in the international commercial marketplace.33 ESA questioned the conclusion that it had expressly waived its immunity given that the ESA Council had not decided to this effect (in accordance with article IV of Annex I of the ESA Convention) and appealed the decision. OSSN cross-appealed the finding that ESA is entitled to absolute immunity. The Court of Appeals for the Third Circuit34 distinguished itself from the District Court and concluded that the immunity enjoyed by international organisations is limited and not absolute, and that it is subject to the same exceptions as immunity of foreign states consistent with the contemporary understanding and application of the US Foreign Sovereign Immunities Act (FSIA).35The rationale of the Court of Appeals for the Third Circuit was premised upon the Reference Canon rule. The 1945 IOIA provides that designated organisations “enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organisations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.” In this respects, the 1945 statute makes reference to the foreign states immunity. Further, the foreign states immunity evolved through time and since 1976 the FSIA provides that immunity is waived by the governments either explicitly or by implication as well as in cases where the action is based upon a commercial activity carried on in the United States by the foreign state, or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere, or upon an act outside the territory of the United States in

31 International Organization Immunities Act, 22 U.S.C.§ 288. 32 The District Court relied primarily on a decision of the United States Court of Appeals for the District of Columbia, Atkinson v. Inter-American Development Bank, which held that the Inter-American Development Bank, a financial institution designated as an international organization under the IOIA, was entitled to “virtually absolute” immunity, “contingent only upon the State Department’s making an immunity request to the court....” 156 F.3d 1335, 1340 (D.C. Cir. 1998) (quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)). 33 The District Court quoted Mendaro v. World Bank, 717 F.2d 610, 613-14 (D.C. Cir. 1983). 34 OSS Nokalva Inc v European Space Agency, 617 F3d 756(3d Cir. 2010). 35 28 U.S.C. §§ 1330, 1602, et seq.

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connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. Based on the above, the court reached the conclusion that the reference made by the IOIA to state immunity in 1945 should also encompass subsequent modifications in the legislation and therefore be read in the light of the 1976 FSIA. In this respect, the court assumed that there is no reason to distinguish between states and international organisations and their respective immunities. 7. Critical Assessment of the OSSN vs ESA Decision In our opinion, the argumentation of the court lies on a fundamental misunderstanding. International organisations differ from states in many aspects and particularly in a functional way.36 In legal scholarship one finds up to a dozen or more reasons for which international organisations enjoy immunity.37 The International Court of Justice has observed that “international organisations are subjects of international law which do not, unlike states, possess a general competence like states. International organisations are governed by the principle of “speciality”, that is they are invested by the states which create them with powers, the limits of which are a function of common interests whose promotion those states entrust to them.”38 As a result, the immunity is based on the principle of functionality39/40: the immunity, as determined in the constitutional instrument and other internal

36 Felice Morgenstern, Legal problems of international organisations (Grotius Publications Ltd Cambridge 1986) 5-10. 37 August Reinisch, International Organizations before National Courts (Cambridge University Press 2000) 233-251. 38 Legality of the use by a state of nuclear weapons in armed conflict, Advisory Opinion 1996 ICJ 66, 78. 39 For a critique on functional immunity see: Emmanuel Gaillard and Isabelle PingelPeluzza, International organisations and immunity from jurisdiction: to restrict or to bypass, 51 International and Comparative Law Quarterly (2002) 1-15; Cedric Ryngaert, The immunity of international organisations before domestic courts: recent trends, available at http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP143e .pdf; Kibrom Tesfagabir, The state of functional immunity of international organisations and their officials and why it should be streamlined, 10 Chinese Journal of International Law (2011) 97-128. 40 With regard to functional immunity, it is worth noting that the staff of ESA enjoy functional immunity as is evidenced by articles XVI of Annex I of the ESA Covention.

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rules of an international organisation, encompasses all acts needed for the execution of the official functions and activities of the organisation.41 The distinction between acts jure imperii and jure gestionis, i.e. the restrictive immunity, is not made in the constituent acts of the international organisations and it cannot be therefore imposed on them as it is incompatible with their nature.42 If that were the case, much of the core activity of the World Bank group and the International Monetary Fund would qualify, for example, as commercial and would not enjoy any immunities.43 It has been, thus, noted that the doctrine of functional necessity encompasses “an astonishingly broad scope of jurisdictional immunity”.44 Further, in a 1999 legal opinion of the United Nations Office of Legal Affairs it was mentioned that “the US government in briefs submitted to the courts in cases involving the United Nations has supported the UN position that the restrictive theory of state immunity does not apply to the UN, inter alia, because the UN derives its immunity from international obligations based on treaties to which the US is a party, i.e., the United Nations Charter and the Convention on Privileges and Immunities of the UN, which do not

41 Peter Neumann, Immunity of international organisations and alternative remedies against the United Nations, 9, 2-28 available at: http://forschungsnewsletter.univie.ac.at/fileadmin/user_upload/int_beziehungen/In ternetpubl/neumann.pdf. 42 Rutsel Silvestre Martha, International financial institutions and claims of private parties – Immunity obliges, in World Bank Legal Review, volume 3, International Financial Institutions and Global Legal Governance edited by Hassane Cissé/Daniel Bradlow/Benedict Kingsbury (2012) 103, 93-131. 43 Michael Singer, Jurisdictional immunity of international organisations: human rights and functional necessity concerns, 36 Va. J. Int'l L. (1995-1996) 63, 53-165. See, however, the European Bank for Reconstruction and Development constituent documents which state that “actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.” The rationale for limiting the immunity from jurisdiction of the EBRD lies in its capacity of a commercial lending organisation, which allows contractual parties to bring claims against the EBRD for breach of any commercial contracts. 44 Michael Singer, Jurisdictional immunity of international organisations: human rights and functional necessity concerns, 36 Va. J. Int'l L. (1995-1996) 56, 53-165.

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recognise any difference between commercial and non-commercial acts”.45/46 From this statement it can be observed that the US treats differently the question of immunity of an international organisation depending on whether it is a member state of such organisation or not. This observation is also supported by additional evidence mentioned in the same legal opinion. It is true that states can exercise discretion to recognise or not the legal personality of international organisations in which they do not participate.47 However, once a state has recognised an international organisation (as the US did with ESA48) the functional immunity applies. Normatively speaking, there is no valid reason for making a distinction between international organisations in which the US is a member state and those in which it is not for the determination of the scope of the immunity enjoyed by an international organisation as long as the organisations are recognised by the US government. All the more, it seems that in this way the US discriminates between the various international organisations and in particular against the regional ones. There is nothing in the text of the IOIA that supports such distinction. Last, the IOIA grants the President authority to “modify, condition, limit, and even revoke the immunity of a designated organisation,” which is a clearly political mechanism for monitoring the immunities of designated international organisations. As such the legislator of the IOIA decided not to leave the mandate of curtailing the immunity of international organisations to the discretion and interpretation of the courts. This point is further supported by the fact that in 1976 the legislator had ample opportunity to update and modify the IOIA, as it did with the FSIA at the time, but purposefully avoided doing so. It seems rather unorthodox to attribute an intention for the modification of the content of the IOIA legislation in line with

45 UNJY(1999) para 19, 94-95. 46 Generally on the immunities enjoyed by the UN and case law before the US courts see: Joseph Bongiorno, Sovereign immunity and international organisation: the case of De Luca v. The United Nations, 10 International Journal of Politics, Culture and Society (1996) 317-329. 47 Michael Singer, Jurisdictional immunity of international organisations: human rights and functional necessity concerns, 36 Va. J. Int'l L. (1995-1996) 70, 53-165. 48 ESA’s predecessor was designated as an international organization by President Johnson in 1966. See Exec. Order No. 11,318, 31 Fed. Reg. 15307 (Dec. 5, 1966), as amended by Exec. Order No. 11,351, 32 Fed. Reg. 7561 (May 22, 1967), superseded by Exec. Order No. 11,760, 39 Fed. Reg. 2343 (Jan. 17, 1974), as amended by Exec. Order No. 12,766, 56 Fed. Reg. 28463 (June 18, 1991).

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the amendments introduced in the FSIA despite the explicit decision to abstain from legislating in the former case.49 Another example regards 28 USC 1610(a)(1) where under the United States FSIA, all exceptions to immunity from execution, including a waiver, only apply in respect of property used for a commercial activity in the United States. This rule does not appear to be applicable or transposable in the IOIA. In addition, ESA could not be deemed as having expressly waived its immunity by concluding the dispute resolution clauses mentioned above because, according to the ESA Convention, an express waiver of immunity is only possible further to a decision by the ESA Council. The recognition of ESA as an international organisation by the US binds the courts of the latter to the respect of the provisions of the ESA Convention. In conclusion, the decision of the Court of Appeals for the Third Circuit is open to criticism and should not be treated as a precedent as far as the immunity of ESA or any other international organisation is concerned. 8. Conclusion ESA, as an international organisation enjoys privileges and immunities that are set out in its constituent instrument, the ESA Convention. The status of ESA is complemented by the adoption of arbitration as a means for the resolution of disputes between ESA Member States, between the Agency and a Member State or between the Agency and a private contracting party, with specific provisions and rules dealing with employment matters. There are two distinct arbitration mechanisms provided in the ESA Convention which differ in various aspects. Both these mechanisms complement the immunities and privileges enjoyed by ESA. However, the 2010 decision of the United States Court of Appeals for the Third Circuit curtailed the principle of functional immunity of ESA and applied restrictive immunity to acts allegedly committed jure gestionis. This judgment is open to severe criticism as its rationale is not premised on either the statutory history and teleological interpretation of the IOIA or the existing case law pertaining to this issue.

49 For a thorough review and analysis of the congressional statutes see: Aaron Young, Deconstructing international organisation immunity, 44 Georgetown Journal of International Law (2013) 331-347, 312-364.

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Bibliography Ulrike M. Bohlmann, Experience of the European Space Agency with dispute settlement mechanisms, in Arbitration in air, space and telecommunications law – Enforcing regulatory measures (edited by The International Bureau of the Permanent Court of Arbitration, Kluwer Law International 2002), 158, 157-160. André Farand, The European Space Agency’s experience with mechanisms for the settlement of disputes, in Arbitration in air, space and telecommunications law – Enforcing regulatory measures (edited by The International Bureau of the Permanent Court of Arbitration, Kluwer Law International 2002), 150-151, 145-156. August Reinisch, International Organizations Before National Courts (Cambridge University Press 2000) 233-251. Michael Singer, Jurisdictional immunity of international organisations: human rights and functional necessity concerns, 36 Va. J. Int'l L. (1995-1996) 56, 53-165. Joseph Bongiorno, Sovereign immunity and international organisation: the case of De Luca v. The United Nations, 10 International Journal of Politics, Culture and Society (1996) 317-329.

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Space Communication in the Jurisprudence of the ECHR Mahulena Hofmann*

Abstract Despite the limitations given by the procedure and the material scope of the European Convention for the Protection of Human Rights, the procedure before the Strasbourg court might lead to satisfactory results both for the providers of space based services and their users. The procedure of the Court is suitable for those who are seeking justice in cases of a violation of the Convention by State Parties and the institutions attributable to them – Ministries, Telecommunication or Regulatory Agencies as examples. The most natural substantive provision of the Convention for cases connected with space communication is Article 10 protecting the freedom of expression. The path to the Strasbourg court can be recommended in the case of rejection of licensing of broadcasting by the State organs, and in the situations of denial of the right to install receiving stations for satellite broadcasting. A common denominator of these cases is their narrow connection with the legal framework of the ITU, especially with the Radio Regulations. 1. Introduction Is the European Court of Human Rights1 a body suitable to solve disputes in the area of satellite communication? This question might appear artificial at first glance. The Court has been established for judging violations of human rights and fundamental freedoms stated in the 1948 UN Universal Declaration of Human Rights;2 the 1950 European Convention for the Protection

* Professor Dr., CSc., holder of the SES Chair in Satellite Communication and Media Law at the University of Luxembourg. 1 In further text „the Court“. 2 The Preamble to the Convention for the Protection of Human Rights and Fundamental Freedoms.

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of Human Rights and Fundamental Freedoms3 allows applications to the Court only from those who claim to be the victim of violation of rights by one of its Contracting Parties – a State. Furthermore, the material scope of the “dispute”4 is limited to those substantial rights embedded in the Convention and its protocols. In practice, the heavy workload of the Court makes the procedures lengthy,5 the compensation awarded is in the majority of cases low6 and the hearings and the documents deposited with the Registrar are principally open to the public7 – all these limitations might lead to the fact that the Court is much less made recourse to by those active in space communications than arbitration bodies. Despite the limitations given by the procedure and the material scope of the Convention, the procedure before the Strasbourg Court might lead to satisfactory results both for providers of space based services and their users. Not much is known about the internal motives of those applicants who decided to seek justice on the basis of the Convention in relation to space communications. It can only be estimated that they were seeking not a material, but rather ideal justice in their particular situations. It is clear that they struggled against the interference of State institutions with their freedom to receive and impart information protected by Article 10 of the Convention. A central judgment in this area is doubtlessly the 1990 case Autronic8 that allowed the Court to draw several general conclusions in relation to this international means of communication.

3 213 UNTS, No. 2889, p. 221; Council of Europe, European Treaty Series, No. 5, 4 November 1950. In further text „the Convention“. 4 The basis of this contribution is an extensive notion of the „dispute” (see ECHR Judgment Le Compte, Van Leuven and De Meyere, 23 June 1981, para 45); one of the (legal) persons is a public authority whose act or decision affects the other (legal) person (Ringeisen, 16 July 1971, para 94). 5 Approximately 99 900 applications were pending before a judicial formation on 31 December 2013. See The European Convention for the Protection of Human Rights and Fundamental Freedoms in Facts and Figures 2013, http://www.echr.coe.int/Doc uments/Facts_Figures_2013_ENG.pdf, p. 3. 6 However, whereas in the 1990 Autronic case the requirement of the applicants for just satisfaction was unanimously dismissed by the Court, in the 2012 non-space communication Centro Europa case the Court ordered a substantive charge of 10 mio Euro plus tax in respect of pecuniary and non-pecuniary damage caused to the applicant; it can be stated, however that this generous charge remains still rather an exemption. 7 Article 40. 8 Autronic, 22 May 1990.

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The following text offers a short analysis of the conditions under which those dealing with space communications might seek the procedure before the Court: it describes the main cases and concludes with a contribution to the discussion in this specific area of freedom of expression not usually connected with human rights. 2. Procedure The European Convention was signed in 1950 in Rome9 and entered into force on 3 September 1953. To ensure the observance of the engagements undertaken by the High Parties of the Convention and their protocols, a European Court of Human Rights was set up (Article 19).10 The Court is composed of a number of judges equal to that of the Contracting States11 who are elected by the Parliamentary Assembly of the Council of Europe from a list of three candidates nominated by the High Contracting Party (Article 22); therefore, the applicant has no influence on the set up of the Court. The only certainty is the presence of a judge elected, on behalf of the High Contracting Party concerned, as a member of the Committees (Article 28), Chambers or Grand Chamber of the Court (Article 26). Among the procedures available in the Convention, the individual complaint plays the most important role. Anyone who is subject of the jurisdiction of a State Party in a relevant case and is allegedly the victim of a violation of the Convention by that State may lodge an application; the nationality of the applicant is irrelevant.12 It is important to note that „anyone” includes both natural and legal persons; Article 34 mentions expressly any „person, non-governmental organization or group of individuals” capable of being a victim of violation of respective human rights. The procedure is adapted to the needs of applicants suffering a violation of human rights, sometime very grave ones such as torture or deprivation of life. After the written application has reached the Court, under the condition of exhaustion of all domestic remedies (Article 35), the Registry of the Court establishes all necessary contacts with the applicant. The application is reg-

9 10 11 12

See supra note 3. In further text „Article“. 47 States Parties on 1 May 2014, http://conventions.coe.int. Peter van Dijk et al., Theory and Practice of the European Convention on Human Rights, Antwerpen- Oxford, 4th edition, 2006.

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istered and assigned to one Section of the Court. To consider the cases brought before it, the Court shall sit in a single judge formation, in a Committees of three judges, in Chambers of seven or five judges or in a Grand Chamber of seventeen judges (Article 26). The procedure is regulated by the relevant provisions of the Convention (Articles 26-46) and by the Rules of the Court.13 In case the application was not declared inadmissible or striken out of the list of cases (Article 27 and 28), following notification of the application to the respondent Contracting Party, the applicant should be represented by an advocate or a person approved by the President of the Chamber (Rule 36). The hearing shall be principally public, and the press and the public may be excluded only in exceptional cases and under observation of the rule of proportionality (Rule 63). Also, the documents deposited with the Registrar shall be principally accessible to the public (Article 40 para 2). The procedure may end at any stage of the proceedings by striking out of the list of cases (Article 37) or by a friendly settlement (Article 39). The judgments of the Chamber shall become final when the parties declare that they will not request that the case be referred to the Grand Chamber, or three months after the date of the judgments; the judgments of the Grand Chamber are final (Article 44). If the Court finds that there has been a violation of the Convention and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party (Article 41). However, the Court may also decide that the finding of violation constitutes in itself sufficient just satisfaction, without there being any call to provide financial compensation.14 The claim for just satisfaction must be specifically made: the itemized particulars of all claims, together with any relevant supporting documents, must be submitted principally within the time-limit fixed for the submission of the applicant’s observation on the merits (Rule 60).15 Just satisfaction may be accorded in respect of pecuniary damage, non-pecuniary damage and

13 Rules of the Court, 1 April 2011; in further text „Rules” or „Rule”. 14 Practice Direction issued by the President of the Court in accordance with Rule 32 of the Rules of the Court on 28 March 2007. 15 The applicant must submit itemized particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observation on the merits unless the President of the Chamber directs otherwise.

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costs and expenses:16 With regard to pecuniary damage, the applicant should be placed in the position in which he or she would have been had the violation not taken place (restitution in integrum). The awards in respect of non-pecuniary damage are intended to provide financial compensation for nonmaterial harm, for example mental or physical suffering. The Court can also order the reimbursement to the applicants of costs and expenses incurred, which will typically include the cost of legal assistance or court registration fees. The Court’s awards are normally in the form of a sum of money to be paid by the respondent Government to the victim or victims of the violations found. The judgments of the Grand Chamber and the final judgments of the Chambers are binding for the High Contracting Parties in cases to which they are parties (Article 46); the execution of the judgments is supervised by the Committee of Ministers of the Council of Europe (Article 46). It is obvious that the procedure of the Court is suitable for those who are seeking justice in cases of a violation of the Convention by State Parties and the institutions attributable to them – Ministries, Telecommunication or National Regulatory Agencies as examples; a complaint directed against an individual or another legal person would be inadmissible for reasons of incompatibility with the Convention ratione personae.17 It should be added, however, that the so-called “Drittwirkung” – the application of the Convention to horizontal legal relation between private parties – has developed in the jurisprudence of the Court from an exceptional phenomenon applied in cases of violations of Articles 218 and 319 to an extensive obligation of States to take measures to protect effective implementation of the rights enshrined in the Convention,20 including by enacting domestic legislation21 or at least by effective investigation:22 so could, e.g., the applicants Mustafa and Tarzibachi invoke the protection of the Convention of their rights violated by the decision of their landlord which was confirmed by the domestic court.23

16 17 18 19 20 21 22 23

See supra note 14. See supra note 12, p. 29. E.g. Gongadze, 8 February 2006. Y v. the United Kingdom, Appl. 14339/88. E.g. Fuentes Bobo, 29 February 2000. VGT Verein gegen Tierfabriken, 28 June 2001. See supra note 18. Khurshid Mustafa and Tarzibachi, 16 December 2008.

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3. Substantive Provisions of the Convention Applicable to Space Communication According to the legal definition given by the Radio Regulations of the International Telecommunication Union24 (1.8 RR)25, space communication or, in the wording of the Radio Regulations, „space radiocommunication” is any radiocommunication involving the use of one or more space stations or the use of one or more reflecting satellites or other objects in space. This very broad category can have many forms – it can involve „classical” telecommunications, meaning the transmission of telephone or other internet signal via satellite, direct broadcasting of TV or radio programmes, or operational radio communication with a satellite. The key element of this definition is – from the perspective of the rights protected by the Convention – the word „communication”. Which provisions of the Convention can be invoked before the Court in relation to satellite communication? First, there can be a violation of the right to privacy protected by Article 8 of the Convention when without legitimation and/or disproportionately interfering through an institution attributable to a State with the private content transmitted via satellite. Second, all administrative procedures connected with space communication may be subject to Article 6: the autonomous character of the words „civil” rights and obligations allows applying Article 6 to proceedings concerning the granting or revocation of a license by the public authorities which is required to set up a specific business or carry out certain economic activities.26 Third, the freedom to hold opinions via space communication can tackle the freedom of thought protected by Article 9 of the Convention. Fourth, Article 1 of Protocol No. 1 can be invoked in relation to the obligation of States to protect the peaceful enjoyment of possessions, including space communication installations. The most natural basis for cases connected with space communication is, however, Article 10 of the Convention protecting the freedom of expression.27

24 25 26 27

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Radio Regulations, Edition of 2012. In futher text „RR“. E.g. Kingsley, 13 February 2003, paras 43-45. Article 10: Freedom of expression Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference

Space Communication in the Jurisprudence of the ECHR

3.1 Freedom of expression Article 10 of the Convention covers the freedom of natural and legal persons under the jurisdiction of States Parties of the Convention to „receive and impart information and ideas” without interference of the public authority and regardless of frontiers, including by the means of radio and television28 – e.g. by broadcasting over the air or by cable transmission29 or by setting up a radio or television station.30 In its jurisprudence, the Court stated that Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed;31 any restriction of the means of communication would imply a restriction of the freedom protected by Article 10. When analyzing Article 10, it may be recalled that the Convention protects the freedom to receive and impart information similarly to the almost universally applicable later 1966 International Covenant on Civil and Political Rights.32 Both treaties require the States Parties to ensure that the rights

28 29 30 31 32

by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Informationsverein Lentia, 24 November 1993. Groppera AG, 28 March 1990, para 55. Lentia, supra note 28, para 26. E.g. News Verlags GmbH & Co KG, 11 January 2000, para 39. Article 19: Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: for respect of the rights or reputations of others; for the protection of national security or of public order (ordre public), or of public health or morals. In futher text „ICCPR”.

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contained in the respective provisions are given full effect in the domestic law; both allow for exemptions from the protected rights only under strict conditions of lawfulness and proportionality. Concerning licensing of broadcasting, Article 10 of the ECHR formulates expressly the right of States to establish a licensing system, whereas Article 10 of the ICCPR speaks more generally about “certain restrictions” derived from „special duties and responsibilities” of the States. These obligations of member States consist, by and large, of specific duties derived from their membership in the International Telecommunication Union and defined in its Constitution, Convention and Radio Regulations. This relation renders both regimes closely intertwined in the area of communication. 3.2 Licensing of broadcasting The insertion of the expressive right of States to require licenses for radio and TV broadcasting into the body of Article 10 para 1 of the Convention corresponded to the circumstances of the period of drafting of the Convention: at that time, the majority of European States operated State-owned communications systems; the high costs of investment prevented any significant appearance of the private actors in this area. Later on, technical and legal developments, particularly the appearance of cable transmission, resulted in the abolition of State monopolies in the Western European countries and in the establishment of private stations in addition to public services. The requirement of licensing for broadcasting services both on a European and a national level remained, however, unchanged: national licensing systems are required not only for the orderly regulation of broadcasting enterprises but also to give effect to international rules, including the ITU framework.33 This framework, especially the binding Radio Regulations (Article 4 of the ITU Constitution), a clearly more ancient set of rules than the Convention,34 expressly require that “no transmitting station may be established or operated by a private person or by any enterprise without a license issued in an appropriate form and in conformity with the provisions of these Reg-

33 Groppera, supra note 29, para 60. 34 See 1906 Réglement de service annexé à la Convention radiotélégraphique internationale.

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ulations by or on behalf of the Government of the country to which the station in question is subject” (18.1 RR).35 However, pursuing different aims and purposes, the system of the ITU differs from the area of human rights in several aspects. It is substantially State-based and the rights of States to restrict or even suspend certain services are formulated unconditionally, without any test of proportionality: The regulation and control of national telecommunication systems still belongs (despite integration efforts of the European Union in this sphere) to the domestic jurisdiction of States – the fact that each country has the sovereign right to regulate its telecommunication is recognized in the Preamble of the ITU Constitution, para 1. International telecommunication provisions leave a substantial margin of appreciation to the national authorities.36 Member States retain their entire freedom in relation to military and radio installations (Article 48 (1) ITU Constitution). Together with the rights derived from the ITU Constitution – the right of the public to use the international telecommunication service (Article 33 ITU Constitution) and the obligation not to cause harmful interference to the radio services or communications of other Member States (Article 45 ITU Constitution) – the Member States reserve the right to cut off, in accordance with their national law, any private telecommunications which may appear dangerous to the security of the State or contrary to its laws, relating to public order or to decency (Article 34, para 2 ITU Constitution). Each Member State also reserves the right to suspend the international telecommunication service, either generally or only for certain relations and/or for certain types of correspondence, outgoing, incoming or in transit (Article 35 ITU Constitution), provided that it immediately notifies such action to each of the Member States through the ITU Secretary General. Additionally, pursuant to Article 37 ITU Constitution, Member States reserve the right to communicate international correspondence to the competent authorities in order „to ensure the application of their national laws” or the execution of international conventions. Contrary to the ITU rules, the human rights instruments require that State licensing systems comply with general requirements of justification of derogation from the freedom to receive and impart information: all restrictions or penalties have to be prescribed by law, fulfill one of the aims prescribed

35 International Telecommunication Union, Radio Regulations, Version 2012. 36 Autronic, supra note 8, para 57.

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by these instruments and be necessary in a democratic society. In its General Comment No 34 ICCPR,37 the UN Human Rights Committee has formulated the conditions of the licensing procedure from the perspective of Article 19 ICCPR as follows: States Parties must avoid imposing onerous licensing conditions and fees on the broadcast media, including community and commercial stations. The criteria for the application of such conditions and license fees should be reasonable and objective, clear, transparent, non-discriminatory and otherwise in compliance with the Covenant. Licensing regimes for broadcasting via media with limited capacity, such as audiovisual terrestrial and satellite services should provide for an equitable allocation of access and frequencies between public, commercial and community broadcasters. It is recommended that States parties that have not already done so should establish an independent and public broadcasting licensing authority, with the power to examine broadcasting applications and to grant licenses. According to the jurisprudence of the European Court of Human Rights, the system of licensing has to comply with the general requirements of legitimate interferences38 as stipulated in paragraph 2 of Article 10 of the Convention, typically with the requirements of lawfulness and proportionality. Under its Article 14, no discrimination is permitted in granting of licenses; Article 6 protecting the right to a fair process contains procedural guarantees within the domestic legal order. 3.3 Prescribed by law – prescribed by the ITU? One of the conditions of the justification of the derogation from the freedom to communicate according to human rights instruments is that it is prescribed by „law”. In the area of space communication, there can be several areas of legislation, which can impose restrictions to the freedom to communicate via satellites – it can be the media legislation, but also the legislation regulating tenancy relations or even the national penal code. Most probable, however, is that the interference with this right would be based on the domestic telecommunication law closely connected with the ITU framework.

37 CCPR/C/GC/34, 12 September 2011. 38 Groppera, supra note 29.

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In the (terrestrial communication-) 1990 Groppera case,39 the Court relied on the ITU rules as „law”: the non-conditional requirement of the authorities for a license for broadcasting from abroad according to the national and ITU legislation was found as both legitimate and proportionate by the Court. According to this judgment (para 70), the State interference may be „fully compatible” with the Convention if it protects „the international telecommunication order” and the „protection of the rights of others”. In the given case, the applicant had disregarded „three basic principles of the international frequency order” (para 69): the licensing principle, whereby the establishment or operation of a broadcasting station by a private person or by an enterprise was subject to the issue of a license (number 20.20 of the former RR); the co-ordination principle, which required special arrangements to be concluded between States where the frequency was used (number 5.84 of the former RR) and the principle of economic use of frequency spectrum (Article 33 of the ITU Convention and number 26.66 of the former RR). In contrary to Groppera, in the Autronic case from the same year (sic!),40 the Court expressed doubts in evaluating the position of the ITU instruments as “law” allowing alimitation of the right to impart information in the sense of Article 10 para 2 of the Convention, „because it may be asked whether (these instruments) do not lack the required clarity and precision” (para 57). This statement of the Court is not without paradoxes – the ITU instruments were created by technicians for technicians and have been applied successfully by them since the end of the 19th century... 4. Examples of Cases The first case dealing explicitly with space communication was the abovementioned Autronic case, decided by the Plenary of the Court in May 1990.41 The application was lodged by a Swiss company that complained against the rejection of its application to demonstrate its capability to receive and impart information from a Soviet telecommunication satellite using an antenna dish installed in a public exhibition. The rejection was based on the different legal regime of the transmissions from direct broadcasting and telecommunication satellites according to the provisions of the ITU: whereas 39 Ibid. 40 See supra note 8. 41 Ibid.

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the direct broadcasting satellites were intended to provide for the direct reception of signals by satellite dishes, the telecommunication satellite should guarantee the secrecy of telecommunication and their signals should not be transmitted without permission from the telecommunication authority of the receiving State, in this case the Soviet Union. This last obligation was derived from the provisions of the Constitution of the International Telecommunication Union, which obliges Member States to take all possible measures to ensure the secrecy of international correspondence (Article 37),42 as well as the Radio Regulations (17.1-17.3 RR) which still require Administrations to prohibit and prevent the unauthorized interception of radiocommunications not intended for the general use of the public. The choice of the practical measures ensuring the secrecy of telecommunications was left to the administrations of the Member States, in this case Switzerland. The Court stated that Article 10 of the Convention applied not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information (para 47 of the decision). The limitation in the form of requirement to obtain a license of broadcasting according to paragraph 1 of Article 10 is subject to the general requirements of Article 10 paragraph 2 of the Convention.43 Consequently, the question of whether the interference cited was „prescribed by law” has to be answered by the national legislation taken together with the relevant provisions of the ITU Constitution and the Radio Regulations (para 5). Their status as law however, remains doubtful, because they might lack the required clarity and precision, leaving a substantial margin of appreciation on implementing measures to the national authorities. However, despite the fact that the cited interference was in pursuance of the two aims compatible with the Convention – the prevention of disorder in telecommunication and the need to prevent the disclosure of confidential information (para 59) – the prohibition to receive and impart the data from the Soviet telecommunication satellite violated the proportionality principle. The later technical developments – the appearance of telecommunication satellites allowing direct reception of TV programmes without the consent of authorities of broadcasting States, together with the lack of protests of ITU signatories against such reception (para 62) made the specific legal

42 At the time of the decision Article 22. 43 Supra note 29, para 61.

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regime of telecommunication satellites obsolete; therefore, the interference was not “necessary” in a democratic society. Whereas the majority of judges (16:2) held that there was a breach of Article 10 by Switzerland and ordered to pay the applicant company costs and expenses in the amount of 25 000 Swiss francs, the dissenting opinion considered the prohibitive measure to be a reasonable response to the international undertakings entered by Switzerland in the ITU. Interesting is the reasoning of the majority of judges by the later practice of Member States of the ITU and by the lack of protests against a direct reception of TV signals from telecommunication satellites. However, there is no legal evaluation of this practice in the body of the decision; has the Court seen a “birth” of an international customary rule making the prohibition of distributing certain telecommunication data obsolete? Also the decision Tele 1 Privatfernsehgesellschaft v. Austria (decided by the Second Section), which became final in 200144 – dealt with the legislation on licensing of broadcasting. The applicant alleged that the Austrian authorities’ decision refusing it a license to set up and operate a terrestrial TV transmitter violated its right to freedom of expression. The refusal was based on the fact that the only legislation enabling the authorization of terrestrial broadcasting was enacted in respect of the then monopolist Austrian Broadcasting Corporation; there was no respective legislation on behalf of regional TV in 1994, the year of the procedure before the national Telecommunication Office. The right to apply for a cable or satellite-broadcasting license introduced by the later 1997 Cable and Satellite Broadcasting Act was not considered an alternative by the applicant. The Court found a violation of Article 10 in the period where no alternative to the Austrian Broadcasting Corporation was possible because of the missing legal basis for the license to set up a TV transmitter. No disproportionate interference has been found, however, in the period of the step by step liberalization of broadcasting: despite reserving terrestrial TV to the monopolist, the applicant had a possibility to apply for a license in alternative ways of broadcasting (cable or satellite). No compensation was declared payable by the Court: it held the claim for pecuniary damage, based on the assumption that the license would have been obtained if Austrian legislation had been in conformity with Article 10 of the Convention, as speculative.

44 Tele 1 Privatfernsehgesellschaft, 21 September 2000.

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It is interesting how the Court dealt with the question of accessibility of various means of communication, especially with the comparison of diverse forms of TV (terrestrial and cable, para 39): On the basis of data given by both parties, it even found itself „satisfied” that, in the Vienna area, cable TV broadcasting offered private broadcasters „a viable alternative to terrestrial TV broadcasting” and concluded that „thus, the interference with the applicants right to impart information …can no longer be regarded as being disproportionate.” It is difficult to say whether this position completely corresponded to the obligation to protect all forms of communication in which information is conveyed. On the contrary, the possibility to use other means of information was found irrelevant in the judgment dealing with the right to receive information from direct broadcasting satellites – the case Mustafa and Tarzibachi decided by the Third Section of the Court in 2008.45 It dealt with the right of an Iraqi couple to install a satellite dish in a rented flat in Sweden, which was denied by its landlords; the maintenance of the dish was finally followed by the termination of the tenancy agreement. The Court stated that the decision of a Swedish court confirming the termination of the tenancy agreement constituted an interference with Article 10 of the Convention, despite the fact that this interference was both prescribed by law – the Swedish Land Code – and pursued a legitimate aim – to protect the right of others. In the proportionality test, however, the judges weighed the right of the immigrants to follow the TV programmes in their native language (para 44) against the safety and aesthetic concerns of the landlord. According to the decision, the dish which did not pose any real safety threat was installed in an area with no “particular aesthetic aspirations” (para 47). Consequently, the eviction from the flat could not be considered proportionate to the aim pursued. The applicants claimed 6 500 Eur in respect of pecuniary damage connected with the increased costs to and from work; the Court accepted this claim. Furthermore, the Court awarded the applicants 5 000 Eur for non-pecuniary damage. This unanimous decision is relevant for the protection of the right to receive information from a direct broadcasting satellite as its model can be applied against excessive prohibitory actions of the authorities against receiving satellite installations. Especially interesting is the part in which the Court raises the question of whether the applicants had any other means to

45 Khurshid Mustafa and Tarzibachi, 16 December 2008.

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receive comparable information from other media – newspapers or radio programmes (para 45): it concluded that newspaper or radio cover only part of what is available via TV satellite broadcast and cannot „in any way” be equated with the latter – in other words, the Court set the protection of TV direct broadcasting at the top of the hierarchy among other media and did not accept the argument of the authorities that a viable alternative to direct TV broadcasting from satellites was available. 5. Conclusion At the end of this short overview, several remarks should be made: First, there are numerous other decisions of the Court, in which in one or other way satellite communication is mentioned; in these decisions, however, the fact that they have anything to do with a satellite is not relevant to the outcome of the case. Second, there are numerous other decisions of the Court, which do not mention space communication at all but – on the contrary – do have an enormous significance for the legal framework of national and international telecommunication order. For all, the series of Article 10 decisions dealing with frequency management, such as the judgments Groppera, Lentia or Centro Europa, have to be mentioned. Third, it is interesting to raise a question as to whether the cases dealing with space communication do pursue any specific model, which makes them different from others. It appears that some specifika can be found in the fact that – at least in the cases connected with licensing of broadcasting – there is a narrow connection with the legal framework of the ITU, especially with Radio Regulations. On the other hand, never in its history has the Court invoked the law of outer space with all its specific features such as the common heritage of mankind principle, and such a case could be constructed only with some creativity. Someone who was refused a license for space communication activities on the basis of the national space law in a State Party to the Convention could (after exhausting all domestic remedies) invoke the violation of Article 6 of the Convention. Can, in these circumstances, the path to the Strasbourg Court be recommended to those who are dealing with the area of satellite communication? It seems that it can be recommended in two cases: the case of rejections of licensing of broadcasting by the State organs, and in the situations of denial of the right to install receiving stations for satellite broadcasting in the States 159

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Parties to the Convention. However, this recommendation is limited to the cases of violations by one of the Parties of the Convention in which the applicant seeks not primarily a speedy and pecuniary conclusion, but abstract justice and satisfaction. Bibliography Peter van Dijk et al., Theory and Practice of the European Convention on Human Rights, 4th edition, Intersentia, 2006. European Court of Human Rights/ Registry: Affaire Autronic AG, Heymann, 1990. Jochen A. Frowein, European Convention for the Protection of Human Rights, MPEPIL 2009. Francis Lyall, International Communications, Ashgate, 2011.

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Satellite Telecommunications and American Tort Law Susan Poser* and Joel Rische**

Abstract This paper will examine satellite communications under the perspective of American Tort Law. In doing so, the paper will briefly describe some of the major statutory and regulatory schemes governing satellite operators in the United States, and then give a few examples of where liability has been found, and might be found, in tort and contract. 1. Introduction Regulation of private satellite ownership and activity is of particular importance to the United States, and presumably all nations, because under international law, specifically, Articles VI and VII of the Outer Space Treaty, national governments are responsible for the conduct of their citizens and corporations involved with activity in outer space, and that responsibility includes paying damages for harm caused by those citizens or corporations. Satellites are clearly activity in space. The process for enforcing Articles VI and VII is through the 1972 International Liability Convention, which created the adjudicative process for claims of damages resulting from activity in outer space. The Outer Space Treaty of 1967 states in part: State Parties to the Treaty shall bear international responsibility for national activities in outer space,... whether such activities are carried on by governmental agencies or by non-governmental entities....1

* Dean & Richard & Catherine Schmoker Professor of Law, University of Nebraska College of Law. ** University of Nebraska College of Law, J.D. expected May, 2014. 1 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. VI, ratified Oct. 10, 1967, 18 U.S.T. 2410.

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[E]ach State Party from whose territory or facility an object is launched is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons.2

No case has ever been brought under this treaty. On the national level, liability within the United States is governed by our own laws, of course. The United States has a unique federal system that grew out of the British colonies, first joined together as sovereign states after the American Revolution through the Articles of Confederation and then the United States Constitution. We have a federal government that is defined by the Constitution and which can pass laws that apply to all citizens. At the same time, each of the 50 states has its own constitution and set of laws governing the citizens of that state. To further complicate matters, much of state law is common law—that is, judge-made law that looks to individual cases, not statutes, to determine what the law is and how to apply it. The common law is particularly well developed in the areas of personal injury and contract law. Under state common law adjudication, the reasoning in a decision in one case is used to determine the outcome in a future case that involves similar facts. So when we think about the law governing satellite telecommunications operators in the United States, we must look to federal statutes and regulations, state statutes and regulations, and state common law. When these laws conflict, the rule is that state statutes take precedence over state common law, and federal law takes precedence over state law. The issue of what law applies is mirrored by the jurisdictional issue of what court decides, as depicted in this diagram:

2 Id. art. VII.

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One interesting question for lawyers and their satellite clients in the United States, is what remains of the state common law amid all of the regulation of satellite operations. In other words, are there any situations in which an individual or company might be able to bring a lawsuit for damages against a satellite operator and rely on the common law of tort or contract? What we have found is that there may be some opportunity under the law to bring an action against satellite operators under several theories of the common law. Although in some sense this might seem like a uniquely American problem not of interest to satellite operators outside of the United States, with today’s multinational companies, and national companies operating globally, it may be a liability risk worth considering for any satellite company. In this paper, we will briefly describe some of the major statutory and regulatory schemes governing satellite operators in the United States, and then give a few examples of where liability has been found, and might be found, in tort and contract. As such, it is only a small aspect of the public and private law of satellite regulation in the United States.

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2. Current Regulation of Satellite Operators and Communication Satellite communications and operations by private parties in the United States are highly regulated by statute, primarily federal statutes. For example, federal law regulates who launches satellites and how. The Commercial Space Launch Act (CSLA) provides for regulation of Commercial space launch, insurance requirements and access to government launching facilities.3 Space launch contractors must obtain licenses to provide launch services to satellite companies wishing to place satellites in orbit. One of the license requirements is that the licensee (the launch contractor) must negotiate waivers of liability with its customers (the owner of the satellite) stating that each party will be responsible for its own loss.4 Federal law also regulates who may operate communications satellites and requires that the operation of communications satellites must be authorized by the Federal Communications Commission (FCC) and done in accordance with the FCC regulations.5 Operating authority generally must be applied for and granted before a satellite may be launched into orbit.6 In order to attain that authority, the operator must provide a proposal that includes many details, including radio frequency information for geostationary orbit satellites, and orbital plane for non-geostationary satellites, characteristics of the satellite, tracking arrangements, and so forth.7 Licenses under these regulations are issued for eight, ten, or fifteen years depending on the use of the satellite.8 The FCC assigns frequency classes to different uses and frequencies to different users.9 This includes satellite transmissions from space stations to earth stations.10 The FCC also determines the amount of power at which each class of operators may transmit; the orbital location for geostationary and

3 4 5 6 7 8 9 10

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E.g., 51 U.S.C. §§ 50901–23 (2012) (regulating commercial space launch activities). Id. § 50914. 47 C.F.R. § 25.102 (2012). Id. § 25.113(g). E.g., Id. § 25.114. Id. § 25.121. 47 U.S.C. § 303. 47 C.F.R. § 97.207.

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low-earth orbit satellites11; and it requires satellite television providers to carry local market television stations that broadcast in the market in which the satellite carrier is offering services.12 The statute creates a civil penalty for unauthorized interception or use of satellite transmissions.13 This is just a small sampling of the federal regulation governing satellite operators in the United States. Against this backdrop of federal statutes and regulations legislating for competition, for safety, and for societal benefit, the individual states have passed laws on a variety of topics related to satellite operators. For example, some states tax the gross revenue generated from transmitting satellite television programming into the state.14 Indiana tax law makes the provision of satellite television services a retail transaction, taxable by the retail sales tax.15 Illinois requires satellite television broadcasters and other cable providers to meet certain customer service requirements that center on ensuring customers can get efficient service by requiring that the provider maintain an office in each municipality it serves and retain a certain quality of reception.16 A law in Nevada allows the government to seize property if it was used to hunt big game, i.e. large animals, by illegal means, including the location of big game by satellites.17 For example, it outlaws the location of the big game by a device, such as a GPS, that utilizes information from a satellite. There are no cases we could find applying this statute. Presumably, the penalty would be forfeiture of the kill and the GPS device.

11 47 C.F.R. § 97.207. This must comply with International Telecommunication Union (ITU) standards—the licensee must submit the proper notifications to the international bureau of the FCC. Id. 12 47 U.S.C. § 534. 13 Id. § 605. 14 See, e.g., CONN. GEN. STAT. ANN. § 12-258 (West 2013) (apportioning gross earnings and setting tax rates for gross earnings); DEL. CODE ANN. tit. 30, § 5502 (West 2013) (imposing a 2.125% tax on gross receipts of satellite television distributors). 15 IND. CODE ANN. § 6-2.5-4-11 (West 2013); see also Massachusetts, Mass. Gen. Law 64M § 2 (taxing 5% of gross revenue from customers in Massachusetts). 16 220 ILL. COMP. STAT. ANN. 5/22-501 (West 2013). The statute also provides a required customer credit structure for certain violations of the statute and empowers customers to pursue violations of the statute as well as local government and the attorney general (the attorney general may not seek damages in excess of the fees, but the statute does not expressly create a similar limitation for fees sought by customers). Id. 17 NEV. REV. STAT. ANN. § 501.3857 (West 2013).

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Many states have theft of services statutes similar to federal law.18 Most states create either criminal penalties, civil penalties, or both, for interception of communication signals, including satellite television or phones. For example, Alaska has a statute prohibiting eavesdropping and misuse of communications and it also creates a duty to report violations by employees of “communication common carriers,” including satellite broadcasters.19 Given the breadth of both state and federal law regulating different aspects of telecommunications and satellite, conflicts between state and federal law arise. One type of conflict arises where federal regulation has conflicted with state zoning laws in the context of placement of satellite dishes. For example, a New Jersey Appellate court found that a zoning ordinance restricting the height and placement of receive-only satellite dishes placed an undue burden on a homeowner who would be unable to receive most signals if he conformed with the zoning requirements.20 The court noted that federal regulations required the state law, in order to be compatible with the federal regulation, to have a clearly stated health, safety, or aesthetic objective in the text of the regulation itself and must further that objective without unnecessarily burdening federal interests in promoting access to satellites and fair competition. 21 In that case, the court held that the borough had not articulated an interest protected by the ordinance that would justify the burden on the federal interest in promoting satellite communication.22 There are cases from other states with similar results.

18 Compare 47 U.S.C. § 605 (2012) with, e.g., ARK. CODE ANN. § 5-60-120 (West 2013); GA. CODE ANN. § 16-11-62 (West 2013); 720 ILL. COMP. STAT. ANN. 5/14-2, 14-6 (West 2013) (violating criminal statute creates civil liability as well). 19 ALASKA STAT. ANN. §§ 42.20.300,.325 (West 2013). Violation of this statute is a Class A Misdemeanor, so vindication of the right would be done through criminal courts. Id. § 42.20.330. Class A misdemeanors are punishable by up to a year in jail or a $10,000 dollar fine. Id. §§ 12.55.35,.135. 20 Nationwide Satellite Co. v. Zoning Bd. of Adjustment of Haddon Heights, 578 A.2d 389 (N.J. App. 1990). Federal regulations provide that state or local land use regulation that limits transmission or reception by satellite earth stations is preempted unless the authority can show that the regulation is reasonable. 47 C.F.R. § 25.104 (2012). 21 Id. at 28. 22 Id. at 38–39.

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3. Actual or Potential Tort Liability of Satellite Operators and Communication With so much regulation of satellite operators in the United States, there is a lot of opportunity for conflicting regulation between federal and state authorities. One interesting question that arises is whether the federal and state statutes and regulations in the United States completely cover all possible aspects of liability involving satellite communications and operators, or whether there is any area in which the common law might still be used to create liability, thereby allowing individuals to sue for damages caused by satellite operators. In other areas where there is federal regulation of private conduct in the United States, tort law still plays a role. For example, there are some cases where the violation of a regulation, which might be a criminal matter, allows the individual harmed by the violation of the statute to bring a civil lawsuit for damages. This is a situation where public law can create private rights and is known as a private right of action. The United States Supreme Court has limited the ability to bring a private right of action in the shadow of a federal law to cases where there is clear legislative intent.23 There is such intent under the Federal Communications Commission’s (FCC) regulations, which specifically permit a claim for damages against a common carrier when the common carrier’s violation of FCC regulations causes damages to an individual: In case any common carrier shall do... any act, manner, or thing in this chapter prohibited or declared to be unlawful,... such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation....24

For example, in one case, the plaintiffs were employees of the State of California, working on fire protection and forestry issues on a mountain in California. 25 Also on that mountain were telecommunications facilities that were privately owned, and supported cellular telephones, including telecommunications towers, antennas, microwave dishes, and cellular panels. The

23 See, e.g., Gonzaga Univ. v. Doe, 573 U.S. 273 (2002) (finding no private right of action under the Family Educational Rights and Privacy Act for release of otherwise protected student information). 24 47 U.S.C. § 206 (2012). 25 Jasso v. Citizens Telecomm. Co. of Cal., No. CIV S-05-2649, 2007 WL 2221031 (E.D. Cal July 30, 2007).

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plaintiffs sued in federal court and claimed that they were injured by exposure to the radiofrequency and microwave radiation that was emitting from the defendants’ towers and other property. In claiming that the defendants were negligent in allowing this to happen, they looked to the regulations by the FCC to set the standard of care. Those regulations specified the criteria for emissions from towers and other telecommunications equipment.26 The court held that the plaintiffs could use these criteria to make the argument that the defendants were negligent under the common law.27 In other words, if the plaintiffs could show in a private tort suit that the defendants violated the FCC regulations, this would tend also to show that the defendants were negligent in the operation of their equipment, and that negligence caused the plaintiffs’ injuries. In that particular case, because the FCC explicitly permits a private right of action for individuals damaged by a common carrier’s violation of FCC regulations,28 it was not necessary to make the intent argument for an implied private right of action, but the argument for the implied private right of action is important because of its possible implications for satellite operators under other statutes. Private rights of action tend to be easier to bring in state court, as some states have less onerous burdens for implying a private right under a state statute. For example, in a non-satellite context, there is a Missouri case where a plaintiff relied on the federal health privacy law, known as HIPPA, to bring a claim for damages resulting from the release of private information by a healthcare provider.29 The Missouri state court said that the plaintiff could try to make out such a claim, using the standard of care in the federal statute to show a violation.30 In other words, the plaintiff could sue for damages and cite the violation of the HIPPA privacy standards as proof of negligence. There are some state cases in which courts have found a private right of action against satellite operators. A California statute prohibits satellite or cable companies from using electronic devices to eavesdrop within the

26 Id. at *9–10. 27 Id. at *11. 28 47 U.S.C. §§ 206–07; see also Toddco, Inc. v. Nextel West Corp., No. 2:04-CV-3, 2005 WL 1174220 (N.D. Ind Apr. 28, 2005) (finding 47 U.S.C. § 207 expressly provides a private right of action to a plaintiff). 29 I.S. v. Washington University, No. 4:11CV235, 2011 WL 2433585 (E.D. Mo. June 14, 2011). 30 Id.

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homes of its customers. 31 It also prohibits them from turning over “individually identifiable” customer information to anyone, absent the customer’s consent.32 The statute also limits the gathering of personal information by a company to the amount reasonably necessary for billing and internal business practices.33 Significantly, that statute permits “a person aggrieved by a violation” of the statute to bring a civil suit for invasion of privacy in state court. Minnesota law similarly permits the individual whose communication has been intercepted to sue for damages, in addition to government prosecution.34 The argument is important because it might also be possible for someone who suffers individually because of a violation of a federal statute regulating telecommunications satellite operators to bring a lawsuit for damages against the operator, using the telecommunications regulation as the standard of care. If, for example, a satellite operator violated federal law by interfering with a satellite signal that was aiding an ambulance to locate an injured person, which led to that person’s further harm, it might be possible for the individual harmed to sue the satellite operator interfering with the signal for tort damages. Another example provided by Professor Frans von der Dunk at the University of Nebraska, relates to an operator interfering with the prohibition against the use of radio frequencies in certain designated areas of the country because those areas are statutorily designated National Radio Quiet Zones. If the unauthorized use of such frequencies interfered with the work of a scientist working in a radio astronomy observatory in the area, perhaps a private lawsuit for interference, leading to loss of business opportunity, could be brought.

31 CAL. PENAL CODE § 637.5(a)(1) (West 2013). Subsection (i) states that an person aggrieved by a violation of this section may commence a civil action for invasion of privacy, so an aggrieved party may commence a tort action in a court of general jurisdiction in California. See id. § 637(i). Additionally, a person that has violated this provision may be fined up to $3,000 and receive jail time up to a year. Id. § 637(j). 32 Id. §§ 637.5(a)(2), 637.5(c). 33 Id. 34 MINN. STAT. ANN. § 626A.13 (West 2013). The penalties are limited by the statute, but include injunctive relief, damages, possible punitive fines, and attorney’s fees and costs of litigation. Id. This is a civil action as well, so an aggrieved party would go through a court of general jurisdiction. The aggrieved party is entitled to actual damages or an amount set by statute. Id. Subd. 3. If the offending party had not been previously enjoined, the statutory penalty is $50–$500. Id. If there was a previous injunction, the penalty goes to $100–$1,000. Id. Nebraska has an almost identical law. NEB. REV. STAT. § 86-297 (Reissue 2012).

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Daniel Erskine has suggested that tort suits for interference with contracts and business advantage could be brought by providers of wireless mobile services against satellite radio operators whose signals interfere with the proper operation of mobile phones.35 On the contract side, one thing preventing courts from awarding contract damages against satellite operators is the fact that many satellite operators include waivers of liability in their contracts. Courts tend to uphold such waivers unless they can find that the contract was a contract of adhesion because of terms that violated public policy,36 because of a great imbalance of bargaining power between the parties,37 or when the conduct at issue constituted gross negligence, or worse.38 These bases of liability came together in a 2009 case, Empire One Telecommunications, Inc. v. Verizon New York, Inc.39 Empire was a secondary provider of telecommunications services, and relied on Verizon for access to the infrastructure and equipment needed to provide customers with its services. Empire made several claims, including that Verizon’s gross negligence or intentional acts prevented Empire from receiving usable information it needed to bill its customers properly. The Court held that the limitation of liability in the contract between the two could not bar liability for gross negligence because it is against public policy to allow waiver of liability for gross negligence or intentional misconduct40; because there was a “special relationship” between the parties created by the 1996 telecommunications act policy interest in promoting competition41; and because the parties were in unequal bargaining positions because Verizon had all the access to the network Empire needed to compete in the market.42 If some-

35 Daniel Erskine, Satellite Digital Radio Searching for Novel Theories of Action, 1 J. HIGH TECH. L. 135 (2002). 36 See RESTATEMENT (SECOND) OF CONTRACTS § 178 (1981). 37 See id. § 208 cmt. a. 38 See id. § 195. 39 888 N.Y.S. 2d 714 (N.Y. Sup. Ct. 2009). 40 Id. at 724. 41 Id. at 725–26. 42 Id. In another case, the district court held that there was a question of fact as to whether the commercial phone service to defendants was cut off pursuant to the terms of the contract. Bellsouth Telecomm., Inc. v. Kerrigan, 55 F. Supp. 2d 1314 (N.D. Fla. 1999). The limitation of liability in the contract only covered failure to receive calls due to negligence, omission, maintenance, repair, etc.; it did not limit liability for intentional disconnection inconsistent with the terms of the contract. Id.

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how, the gross negligence alleged in this case also harmed an individual, perhaps a customer unable to receive the services for which he or she contracted, that customer might be able to bring a claim against Empire as well. In the realm of launch, there already is the Commercial Space Launch Act that applies to satellite launch operators, including their insurance and requirements of cross waivers of liability. But like the court in the Verizon case, the courts have held that willful misconduct is excluded from the crosswaivers.43 4. Extension to Commercial Space Flight and Space Tourism Understanding the interplay between state common law and the complex federal and state regulatory environment is important in its own right because knowledge of where tort liability may still operate will help satellite operators to fully understand their liability exposure. As a policy matter, awareness of the possibility of tort liability should alert policy makers of the need to address these issues in regulations, either by explicitly barring private rights of action, or explicitly allowing them, as some regulations do. In closing, I want to make the leap from the issue of tort liability of satellite operators, to the potential tort liability in the emerging realm of commercial spaceflight and space tourism. We might anticipate that tort liability will play a larger role in the context of commercial space flight than it does in the context of satellite operators for a few reasons. First, on the contract side, the liability of satellite telecommunications operators arises in a context of contracts and waivers between and among commercial entities, like the satellite operators and a mobile phone company, for example. But in the space tourism context, there will always be an imbalance of sophistication about technical issues between the parties because an agreement for a ride on the rocket, for example, will be between a corporate entity sponsoring the spaceflight, and an individual looking for a new experience. Unlike the vast majority of potential liability situations involving satellite operators, in the space tourism or commercial spaceflight context, arguably the largest risk is the risk of personal injury,

43 Martin Marietta Corp. v. Int’l Telecomm. Satellite Org., 991 F.2d 94, (4th Cir. 1992) (applying Maryland contract law).

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something for which the tort law historically has been particularly well suited and well utilized. Bibliography Daniel Erskine, Satellite Digital Radio Searching for Novel Theories of Action, 1 J. High Tech. L. 135 (2002). Ian Walden (ed.), Telecommunications Law and Regulation, Oxford, 2012.

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Product Liability Ramifications for Damage Caused by Erroneous GNSS Signals Andreas Loukakis*

Abstract The liability regime for erroneous signals provided from Global Navigation Satellite Systems (GNSS) is a topical issue. There is already certain legal analysis relating to this matter which suggests the adoption of an international convention which would subject GNSS operators to a strict liability regime with a limitation on the amount of compensation and furthermore supplemented by a compensation fund. This paper will try to address the issues of liability for erroneous GNSS signals from a different perspective, namely that of product liability.The basic research question addressed by the paper is whether the GNSS signals can be qualified as products and therefore in case of GNSS signal failure the GNSS provider could be considered liable for a defective product. The paper will base its analysis on two GNSS systems: the current system of GPS and the forthcoming system of Galileo. After briefly describing the basic elements of these systems and some hypothetical scenarios of damage, the paper will address the issue of whether satellite signals could be considered as products or services. In doing so, analogies from other fields, for instance electricity or defective information stemming from aeronautical charts, will be drawn. Finally, some conclusions will be drawn from the aforementioned analysis.

* PhD Candidate, Faculty of Law, Economics & Finance, University of Luxembourg. This paper is based on a presentation delivered during the 56th International Institute of Space Law Colloquium on the Law of Outer Space (during the proceedings of the 64th International Astronautical Congress, having been held in Beijing, China, in September 2013).

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1. Introduction 1.1 Introductory remarks with respect to the development of satellite based services Over the course of time, space technology has developed into a significant industry that produces satellites and launches vehicles to deliver a number of important services on Earth to governments, individuals as well as businesses. Interestingly, these services cover various fields of daily life. One example is the field of Global Navigation Satellite Systems (GNSS). In brief, GNSS give instant answers to questions such as “where am I on Earth?” and “where are my assets at all times?”1, by using satellite based information –mainly signals- as well as specific kinds of technology. Hence, given these capabilities, GNSS are being used in a number of areas such as navigation, dispatching, fleet routing, fixed and mobile asset tracking. Along with the field of navigation, one could also observe other areas which are constantly being developed and are making use of satellite signals. Telecommunications, meteorology and Earth observation are all examples, just to mention a few2. It is beyond any doubt that there are a certain number of advantages of utilizing satellites signals in various areas for the provision of different kinds of services on Earth. Better and more efficient transportation, better telecommunications, higher quality of television and Internet services are some examples. Nonetheless, where there are advantages, there are also certain risks and legal challenges. Satellite based services make use of advanced technology3. Furthermore, many actors are contributing to the provision of the

1 “GPS: Charting New Terrain – Legal Issues Related to GPS-Based Navigation and Location Systems”, in ConstructionWeblinks. Com, April 1999. 2 Frans G. von der Dunk, “Earth observation and Data Policy: The legal issues – The Eopole Concerted Action Project”, Space and Telecommunications Law Program, Faculty of Law Publications, Nebraska-Linkoln, 1999, p. 373. See also Smith Delbert, “The legal ordering of satellite telecommunications: problems and alternatives”, in Indiana Law Journal, Vol. 44: Iss.3, 1, 1969, p.337. 3 European Commission, Roadmap, Regulation on EU GNSS third party liability risks, DG ENTR. GP2, 2011.

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satellite signals and the satellite services more generally4: the satellite manufacturer, the satellite services provider, government regulators, launch contractors and insurers just to name a few. Thus, these facts entail a significant number of risks and uncertainties. Technological risks, governance risks, and more importantly liability related risks could be mentioned5. For instance, with regard to liability risks, situations including damage might be imagined. If the satellite system and the satellite-based technology do not function as anticipated, they might cause considerable damage. Consider the worst scenario, the malfunction of satellite systems – such as satellite signal loss or defect in the transmission of a satellite signal – might even lead to catastrophic losses. Some hypothetical examples of such losses would be an aircraft crash, the wreckage of a ship or damage where a major financial transaction being executed is disrupted by satellite signal loss. Therefore, questions concerning liability risks within the course of the provision of satellite based services become significant. 1.2 Basic purpose of this contribution: product liability and its impact on GNSS The aforementioned risks and challenges from a liability law perspective as well as how the concept of liability can be applied in the field of satellite based services and GNSS more specifically will be the core elements of this paper. In particular, the basic focus of this paper will be on damage scenarios resulting from a satellite system’s malfunction, namely that of satellite signal loss or erroneous satellite signals within the field of GNSS. Primarily, the basic concern of this paper will revolve around liability ramifications for GNSS signal providers. Secondarily, liability ramifications for other actors participating in the provision of GNSS (i.e. satellite’s manufacturer or GNSS receiver’s provider) will be also examined but to a lesser extent.

4 Francis P. Schubert, “ An International Convention On GNSS Liability: When Does Desirable Become Necessary?”, Annals of Air and Space Law, Vol. XXIV, 1999, p. 245, esp. p. 248-251, see also Frans G. von der Dunk, “The European equation: GNSS=multimodality+liability”, Luf- und Weltraumrecht im 2, Jahrhundert, 2001. 5 Report from the Commission to the European Parliament and the Council, “Mid term review of the European satellite radio navigation programs”, COM (2011) 5 final, Brussels, 2011, pages 8-11.

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Notably, the liability regime for erroneous GNSS signals has been a topical issue. There is already certain literature6 relating to this matter which suggests the adoption of an international convention which would subject GNSS providers to a strict liability regime with a limitation on the amount and furthermore supplemented by a compensation fund. The proposal for an international law instrument is based on the fact that current space law and general tort liability law provisions do not address GNSS liability risks in an appropriate manner. Thus, most of the legal scholars suggest the view that a public international instrument would be an appropriate step for addressing GNSS liability risks. This paper will attempt to address the issues of liability for erroneous GNSS signals from an alternative perspective, namely that of current product liability law. Interestingly, someone could argue that in case of an erroneous GNSS signal, the GNSS provider could be considered liable for a defective product, if the GNSS signal were qualified as a product. In some legal systems, this would lead to strict liability of the provider. In order to reach such a conclusion, it would be necessary to qualify the GNSS signal as a product. Thus, a number of particular questions need to be further explored: First, how might product liability be relevant in the course of the provision of GNSS? Furthermore, can a satellite signal be qualified as a product or as a service? In addition, what would be the legal consequences for GNSS signal providers if satellite signals were qualified as products? Lastly, would current product liability law be the most appropriate way in addressing GNSS liability risks in lieu of proposing an international law instrument? The paper will attempt to give answers to the foregoing questions methodically through the study of relevant literature and analysis of selected case law. In examining the aforementioned questions, it will base its analysis on two GNSS structures, the current system of GPS and the forthcoming system of Galileo. The legal systems that will be examined from a product liability perspective will be essentially that of the European Union and the United States. It should be highlighted that the legal analysis of the paper will be general, based principally upon the study of certain, selected, legis-

6 Sergio Carbone & Maria Elena De Maestri, “The Rationale for an International Convention on Third Party Liability for Satellite Navigation Signals”, Uniform Law Review, 2009, p. 38. See also in this regard: UNIDROIT, “An instrument on third party liability for Global Navigation Satellite Systems: A preliminary study”, S79, 2010, p. 1. In this respect as well: Ulrich Magnus, “Civil Liability for Satellite-based Services”, in Uniform Law Review, 2008, p. 935.

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lative and policy documents from a product liability perspective, coming from both the EU and US. The European Directive for Damage Caused by Defective Products, the American Uniform Commercial Code as well as the American Restatement of Torts (especially the 3rd edition addressing product liability issues) are some examples of these documents which will be discussed in more detail. 2. Global Navigation Satellite Systems: Definitions, Functional Model, Applications 2.1 Architecture of GNSS technology Generally speaking, satellite based services are very broad in nature7. Many applications using satellite based information can be found. These, essentially, vary between telecommunications, television and radio applications via weather forecasts, navigation, search and rescue services, right up to police, military and secret service uses. One of the first fields of satellite based services which developed very quickly is that of navigation (more specifically, the field of Global Navigational Satellite Systems). In brief, GNSS can be understood as a specific kind of space based technique. In principle, this technique has been designed in such a way as to provide in all weather conditions, three dimensional position, velocity and timing data8. For the operation of GNSS, there is a need to employ advanced technology which essentially works as follows9: a number of satellites are placed into fixed orbits in outer space; the satellites are constantly emitting navigational signals indicating their position at any given time and in a very precise way. The navigational signals can be received by any person possessing the necessary technology such as a GNSS receiver. When receiving the signals from at least four satellites, the receiver can

7 H.G.Bollweg, “Initial considerations regarding the feasibility of an international UNIDROIT instrument to cover liability for damage caused by malfunctions in global navigation satellite systems”, Uniform Law Review, 2008, p. 917. 8 UNIDROIT, “An instrument on third party liability for Global Navigation Satellite Systems: A preliminary study”, S79, 2010, p.1 esp. p.4. See also: Ulrich Magnus, “Civil Liability for Satellite-based Services”, in Uniform Law Review, 2008, p. 935, esp. 935-937. 9 Ulrich Magnus, “Civil Liability for Satellite-based Services”, in Uniform Law Review, 2008, p. 935, esp. p. 935-938.

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pinpoint the position of persons and goods around the globe exactly to the metre. Currently, there are two GNSS structures in operation10: the United States’ Global Positioning System (GPS), the first GNSS structure to become operational and the Global Orbiting Navigation Satellite System (GLONASS), operated under the auspices of the Russian Federation. In the near future, an additional GNSS structure will become operational, that is to say Galileo which will operate under the auspices of the European Union. An important element of GNSS worth mentioning is that the provision of these services is being undertaken by State entities or supranational organizations. For instance, GPS is operated by the US Department of Defense, whereas Galileo will most likely be operated by a specific EU body under the authority of the European Commission.11 2.2 GNSS: some examples of applications It is important to note that the first GNSS structure, namely that of GPS, was developed for military applications. Nonetheless, since 2000, GPS has been made available for a great range of civil applications as well. With the advent of GPS and GLONASS, and soon enough with the addition of Galileo, the different civil applications associated with navigation, timing and location data have proliferated remarkably around the globe and have made the use of GNSS technology quite popular. One of the most well-known applications of GNSS is that of navigation, but the GNSS technology can also provide information for timing and positioning. Consequently, many applications connected with timing as well as positioning have emerged. Briefly, the following categories of applications can be presented12. First, one can observe a great range of applications developed in all kinds of transportation; the navigation of ships, airplanes, trains and cars are some typical

10 Alessandra Andrade, “The Global Navigation Satellite System”, in Ashgate Studies in Aviation, Economics and Management, 2009, esp. p. 36-65. 11 See Regulation (EC) No 683/2008 of the European Parliament and of the Council of 9th of July 2008 on the further implementation of the European satellite navigation programs (EGNOS and Galileo), esp. Article 16. 12 UNIDROIT, “An instrument on third party liability for Global Navigation Satellite Systems: A preliminary study”, S79, 2010, p.1, esp. p. 14-18. See also Ulrich Magnus, “Civil Liability for Satellite-based Services”, in Uniform Law Review, 2008, p. 935, esp. p. 935-940.

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examples. Given that GNSS can provide information for timing, this kind of technology can also be used in the banking and financial sectors, for the synchronization of economic transactions and financial networks. Further on, the GNSS technology can be employed in the fields of agriculture and fishing where in many instances there might be a need for easier and more efficient performance of these activities. Additionally, GNSS can also become a useful tool in emergency situations. In many instances, there might be a strong need to determine the position of a victim and/or the position of a hospital. Thus, by exploiting the possibilities offered by GNSS technology, different emergency situations might be facilitated. Finally, it is important to add that the GNSS technology might also serve internal security situations by enabling the monitoring of suspects as well as the tracing of stolen objects. To sum up, the GNSS technique has been evolved into a constantly expanding field of satellite based services. For the near future, it is quite likely that many applications in relation to GNSS will continue to be developed and the future of GNSS technology will not be limited to one specific field. 3. The Concept of Liability from a GNSS Perspective: Some General Remarks 3.1 GNSS technology and liability risks There is no doubt that the benefits associated with different GNSS applications are various. As demonstrated earlier, many areas can benefit from the use of GNSS technology. Nonetheless, where there are advantages, there are also risks and legal challenges. One of these challenges is liability13. The starting point is that the GNSS technique, by making use of advanced technology, encompasses inherent risks. Consequently, this fact might give rise to liability implications. For example, if the satellite system and the satellite-

13 As early as 1992, the US government realized the potential problem of liability. In 1992 the US Air Force inaccurately updated the position of one of the satellites in the GPS constellation. The resulting error caused a horizontal error to GPS receivers which exceeded 300 meters. These potential liabilities of the US government have expanded due to the millions users of GPS worldwide who depend on the reliability and accuracy of GPS services/data on a daily basis. For the Galileo undertaking, see in more detail EC Regulation No 683/2008 where there is an explicit recognition of potential liabilities that might arise in the near future, esp. in par. 22 of the preamble of this Regulation.

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based technology do not function as anticipated, this might result in situations of considerable damage. Loss scenarios stemming from failure of the systems – for instance from satellite signal loss or erroneous GNSS signals – are not difficult to envisage. As already mentioned above, hypothetical examples of such losses would be an aircraft crash, a shipwreck or damage where a major financial transaction is disrupted by satellite signal loss. Therefore, many questions from a liability law perspective can be asked. From whom can the victims of the aforementioned scenarios seek compensation? Moreover, under which legal regime can compensation be sought? Finally, which sort of liability is the most relevant in addressing GNSS liability risks? Contractual liability, tort liability or alternatively product liability? 3.2 The concept of liability from a satellite based services perspective: current liability law is applicable When analyzing liability risks for GNSS, two major observations are crucially important. On the one hand, the fact that satellite based services will not operate in a legal and regulatory vacuum, as existing legal provisions will be applicable. On the other hand, the fact that most of the existing legal provisions which can be used or might be relevant have not been drafted with satellite based services in mind. Remarkably, as Professor Von Der Dunk observes 14, there is a legal environment within which satellite based services more generally and GNSS more particularly, will operate. But this, in principle, encompasses a large range of separate, already existing, specific legal environments, none of which were developed with satellite based services in mind. Mostly, these legal environments are nationally defined; they operate only within the territory of one particular state, whereas in many cases, as for instance in the fields of air, sea or space law, international law or European law instruments are superimposed. Additionally, all of these regimes might be applicable in the field of satellite based services as well and can affect the various applications. Notably, the aforementioned observations are valid for GNSS liability scenarios (i.e. damage caused by erroneous GNSS signal or satellite signal 14 See Frans G. von der Dunk, “Liability for global navigation satellite services: A comparative analysis of GPS and Galileo”, in Journal of Space Law, 2004, p. 129, esp. p. 132-135.

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loss). In principle, the development of satellite based services and potential failures of the satellite systems merely add another potential cause of damage to those already existing under national, European and international liability law provisions; that is to say human errors, engine failures or force majeure rather than leading to a completely different or separate legal environment. Therefore, already existing national, European and international liability law provisions will be applicable when someone attempts to examine liability ramifications for GNSS liability risks. 3.3 The threefold distinction between contractual, tort and product liability law as provided by current law and its impact on GNSS Given the fact that GNSS will not operate in a legal and regulatory vacuum, one can conclude that the concept of liability as provided by current law will be applicable for GNSS liability risks. In light of this observation, it would be helpful now to briefly consider the concept of liability as provided by current law more generally. According to current law, and broadly speaking, liability can be defined as “the condition of being responsible for a possible or actual loss, expense or burden” and further as “the state of being bound and obliged by law to do, pay or make good something”15. Further, liability is based upon a specific legal regime – either national, European or international – which subsequently determines the following elements: the limits of the particular liability regime, when it applies; which persons or legal entities are involved; what type of liability is stipulated;and ultimately how compensation issues are handled. From the perspective of investigating which liability law regimes can be or might be applicable within the context of the provision of GNSS, the fundamental threefold distinction between contractual liability, tort liability and product liability as provided by current law would be vitally important16. In short, the basic element which differentiates the aforementioned types of liability is the legal relationship between the plaintiff and the defendant.

15 Ibid. 16 For definitions see Black’s Law Dictionary, supra note 13, p. 295, as well as West’s Law Commercial Dictionary supra note 13 at Vol. I, p. 389.

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In the specific field of GNSS all the aforementioned types of liability would be potentially relevant. Damage scenarios stemming from satellite signal loss or erroneous GNSS signals might give rise to claims which will be based on either contractual, tort or ultimately product liability. In the hypothetical case of damage stemming from satellite signal loss or erroneous GNSS signals, it is most likely that there will be no contract between the potential claimant and the defendant. Consequently, any liability claim in that case will most likely be based upon current tort or product liability rules (i.e. liability outside of a contract). Irrespective of this observation, contractual liability might still have a minor role. Some categories of services offered by GNSS will be subject to the payment of an access fee; Galileo’s commercial services would be an example in this respect17. Hence, in the hypothetical case that these paid services might be proven defective, there might be a claim based upon contractual liability law. Moreover, a contractual claim might also be introduced by the buyer against the seller of a defective GNSS receiver. Notwithstanding these observations, liability in contract will be the less likely scenario for GNSS. Taking into consideration the already mentioned hypothetical scenarios of damage stemming from signal loss or erroneous GNSS signals, it is most likely that there will be no contractual relationship between the potential claimant and defendant. Thereby, liability irrespective of any contractual relationship, will be of greater importance for GNSS liability risks, that is to say tort or alternatively product liability.

3.4 Existing status quo: basic focus on third party liability issues (tort) by the existing literature Thus far, the liability regime for erroneous GNSS signals has raised various questions in the literature. According to the prevailing views in the existing literature, the space law provisions (i.e. The Liability Convention for Damage Caused by Space Objects18) are not applicable for the case of damage

17 See: Communication from the Commission to the European Parliament and the Council: Progressing Galileo: Re-profiling the EU GNSS programs, 19th September 2007, COM (2007) 534 final. 18 See Convention on International Liability for Damage Caused by Space Objects, New York, 29 March 1972.

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caused by satellite signals19. In addition, it is interesting to note that the existing literature pertains mainly to the examination of tort liability issues20. Moreover, it does not examine the potential impact of product liability law on GNSS. Given the fact that non-contractual liability will be the most likely scenario for situations involving damage from GNSS activities, one can argue that along with tort liability, product liability law might also play an important role. In particular, one might suggest that in case of an erroneous GNSS signal or signal loss, the GNSS provider could be considered liable for a defective product, if the GNSS signal were qualified as a product. Additionally, damage resulting from defective GNSS receivers or defective satellite components might also trigger product liability claims. Thus, a number of intriguing questions can be raised. How might product liability be relevant in the course of the provision of GNSS? Can a satellite signal be qualified as a product or as a service? In addition, what would the legal consequences be for GNSS signal providers if satellite signals were qualified as products? Moreover, what kind of legal provisions from a product liability perspective could be invoked? Finally, would product liability law be the most appropriate way of addressing GNSS liability risks rather than advocating the view for a proposal of a public international law instrument dealing with GNSS liability? 4. Product Liability as a Distinct Type of Liability and its Impact on GNSS 4.1 Product liability as a distinct type of liability Product liability can be seen as a separate sort of liability from that of tort and contractual liability. In brief, product liability21 can be defined as the area of law in which manufacturers, distributors, suppliers, and/or sellers of products are held liable for the injuries their defective products may cause.

19 Signals cannot qualify as space objects according to the prevailing view in the existing literature; thereby, article II of the Convention on International Liability for Damage Caused by Space Objects will not be applicable. 20 See footnote 6. 21 Panagiotis Kornilakis, “Law of Obligations”, (in Greek), Sakkoulas Publications, Athens-Thessaloniki, 2012, esp. p. 687-811.

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In general, this sort of liability is considered beneficial for victims having suffered damage due to defective products circulated in the market. Given that product liability law provides for strict liability of the manufacturers and/or sellers of the product, victims do not have to prove fault on the part of the manufacturer. Proving negligence can be an important obstacle for recovery in those instances where evidence has been destroyed because of the product defect itself or misfeasance on the part of the manufacturer/ defendant. This, thus, can result in situations with a complete denial of recovery. Basically, the victim who attempts to benefit from product liability law provisions must establish only the following elements22: i) that the manufacturer sold the product, or otherwise placed it in the market in a defective condition, ii) the defective product proximately caused the damage and iii) finally, there is no need for victims to prove negligence on behalf of the manufacturer. One can find various arguments for and against this specific sort of liability. In short, the following can be mentioned23: First, product liability law, by imposing strict liability, causes manufacturers to internalize costs they would normally externalize. Strict liability requires manufacturers to evaluate the full costs of their products. In this way, strict liability provides a mechanism for ensuring that a product's absolute good outweighs its absolute harm. Between two parties who are not negligent (manufacturer and consumer), one of the parties must necessarily bear the burden of the costs of defective products. Proponents of strict liability argue that it is preferable to place the economic costs on the manufacturers and/or sellers of products because they can better absorb them and pass them on to other consumers. Second, strict liability also attempts to diminish the impact of information asymmetry between manufacturers of products and consumers. In principle, manufacturers have better knowledge of their own products' dangers than the consumers do. Hence, manufacturers are better able to bear the burden of finding, correcting, and warning consumers of those dangers stemming from defective products. Yet, another argument for imposing strict liability for defective products is that of the reduction of litigation costs. Under prod-

22 Joseph Reutiman, “Defective Information: Should information be a product subject to products liability claims?”, in Cornel Journal of Law and Public Policy, Vol. 22, 2013, p. 181, esp. p. 186-188. 23 David Lanneti, “Toward a Revised Definition of Product Under the Restatement (Third) Torts: Product Liability”, 35 Torts and Insurance Law Journal, 1999-2000, p. 845, esp. p. 870-873.

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uct liability a claimant should only prove defect in a product and causation without having to establish fault/negligence. Where causation is easy to establish, parties to a strict liability suit will most likely settle, because only damages are in dispute. Despite the positive aspects, one may also find various arguments against the concept of strict liability. According to an economic analysis of law24, product liability law, by imposing strict liability, might have various shortcomings. More specifically, it might induce the risk of moral hazard. The consumers, in being aware that manufacturers or sellers might be held strictly liable, are more likely to under-invest in care even when they are the leastcost avoiders. This, thereby, might result in a lower standard of care from that provided under negligence rules. Furthermore, under a strict liability regime, the final price of products might be affected. Manufacturers, in being aware that they are always held strictly liable, may not produce the socially optimal level of goods/products. Consequently, this will affect the final prices of the products and will ultimately result in more expensive products being placed on the market. In summary, product liability law is a contested area of law. There are various arguments for and various arguments against according to the foregoing analysis. Nonetheless, in light of the technological evolution, the application of strict liability/product liability has undergone a remarkable expansion by the Courts during the last decades. In general, many plaintiffs have benefited from the application of this specific sort of liability. Therefore, the following question can now be addressed: what are the most vital elements for the application of the concept of product liability and strict liability more generally? 4.2 Product liability: understanding the definition of a product One of the most significant threshold issues in the area of product liability is the question of what can be qualified as a product for the purposes of applying product liability law. Therefore, a good understanding of the definition of product becomes significant. In general, the issue of defining a product is incredibly important for potential litigants trying to benefit from

24 Robert Cooter and Thomas Ulen, “Law and Economics”, fifth edition, in Pearson International Edition, 2007, esp. p. 322-365.

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product liability law as they may prove dispositive of a particular claim. For instance, a plaintiff whose claim falls outside the boundaries of product liability will generally be denied the benefit of strict liability. If that is the case, he should then prove fault under a negligence theory. As already demonstrated above, proving negligence might be a difficult, even insurmountable task in a number of cases. Hence, the question which needs first to be addressed is: what constitutes a product for the purposes of applying product liability law? Thus far, there are various jurisdictions which have chosen to define the term product via legislation. It would be beyond the scope of this paper to discuss all of these jurisdictions in more detail. On the contrary, the paper will attempt to give a general idea of product liability law and of the definition of a product. Thereby, it will discuss two more specific legal systems, namely the European Union and the United States. Both in the EU and the US, there is a definition of the term product via legislation and via certain policy documents. The European Union Directive dealing with damage caused by defective products25, the American Restatements of Torts (especially the 3rd edition) and the Uniform Commercial Code are some examples worth mentioning from a product liability perspective. 1. The European Union Directive for damage caused by defective products: One of the most significant events in the history of product liability law in Europe occurred on 25 July 1985 with the introduction of the “Council Directive on the Approximation of the Laws, Regulations, and Administrative Provisions of the Member States concerning Liability for Defective Products”26, (the so called, Product Liability Directive). In essence, the Directive requires all European Union Member States to impose strict liability on producers of defective products that cause personal injury or property damage. Notably, the Directive itself contains important provisions with respect to the definition of the term “product”, “producer” as well as “damage”. According to the text of this Directive (i.e. article 2) the term product is defined as follows: “Product means all movables with the exception of primary agricultural products and game even though incorporated into another movable or into an immovable.

25 Council Directive of 25th of July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC). 26 Ibid.

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Primary agricultural products means products of the soil, of stock-farming and of fisheries, excluding products which have undergone initial processing. Product also includes electricity”. 2. The 3rd Restatement of Torts & the Uniform Commercial Code: The EU belongs among these legal systems which have chosen to give a definition of the term product via legislation. Likewise, the same approach is followed by the US legal system. There are certain US legislative and policy documents which define the term “product” for the purposes of applying product liability and strict liability27. Two of them are of importance for this contribution, namely the 3rd Restatement of Torts dealing with product liability issues as well as the Uniform Commercial Code. i.) The 3rd Restatement of Torts: In the US legal system, the Restatements of the law28 have obtained an important legal value. Although, they are not legal instruments as such, they are considered as a set of treatises addressing various, general, legal subjects. In principle, the Restatements of the law intend to inform judges and lawyers about general principles of law. To date, there have been three different editions of Restatements, all published by the American Law Institute, an organization of legal academics and practitioners. It is gratifying to note that the 2nd and especially the 3rd Restatement address various issues from a product liability perspective. More particularly, the 3rd Restatement of Torts deals extensively with the concept of product liability law in the US. Amongst the issues being dealt with by the 3rd Restatement, there is also an explicit definition of product. In particular, the following definition of product is provided: a) a product is tangible personal property distributed commercially for use or consumption. Other items such as real property and electricity are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property b) services even when provided commercially are not products c)human blood and human tissue are not subject to the rules of the 3rd Restatement. ii.) The Uniform Commercial Code: In addition to the 2nd and 3rd Restatement of Torts, one can also find other US policy and legislative

27 Uniform Commercial Code par. 2-105 (1), 1995. See also Restatement (Second) of Torts, par. 402 A, 1965 as well as Restatement (Third) of Torts: Product Liability, par. 19, 1998. 28 David Lanneti, footnote 23, esp. p. 853-855.

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instruments addressing issues of product liability. One of these instruments is the Uniform Commercial Code. The Uniform Commercial Code is a uniform act (a statute) that has been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states in the US29. This act essentially deals with the law of sales and not as such with product liability law. But still, it contains a number of provisions which might have product liability implications. An explicit definition of goods for the purposes of sales is one example of those provisions with potential product liability implications. In defining the term goods, the Uniform Commercial Code follows a quite similar approach to that followed by the 3rd Restatement of Torts. However, the definition of the Uniform Commercial Code is less detailed than the one provided by the 3rd Restatement. What is more, the Uniform Commercial Code refers to goods instead of products. More specifically, the Uniform Commercial Code adopts the following definition “goods are all things including specially manufactured goods which are movable at the time of identification of the contract sales other than the money in which the price is to be paid, investment securities and things in action.” 4.3 Some observations for the current definitions of product Considering the foregoing definitions of product as provided by different legislative and policy documents both in the EU and the US, one can easily realize that the current definitions of product are relatively restrictive. The current EU and US legislative and policy documents follow a literal rule in defining the term of a product for the purposes of product liability. In other words, the definition of a product is provided explicitly by certain policy and legislative documents. Moreover, its basic characteristic is that it centers upon the tangible nature of products. Therefore, an item can be qualified as a product only and as long as it is tangible. In other words, if something can be manufactured, distributed and sold, then it qualifies as a product. Therefore, if that is the case, product liability and strict liability would be applicable.

29 See in more detail: http://law.duke.edu/lib/researchguides/pdf/ucc.pdf.

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Of course, exceptions to the tangibility requirement exist. But these have been drafted in a narrow way. One example worth mentioning in this respect is electricity. Electricity, despite its intangible nature, has been recognized explicitly as a product for the purposes of applying product liability law both in the US and the EU. However, one should bear in mind the following element: the explicit inclusion of electricity both in the EU Directive and the 3rd Restatement of Torts indicates a deviation from the basic rule and in particular from the requirement of tangibility. According to the prevailing legal analysis30, this explicit deviation from the rule cannot be extended by analogy (expression unius est exclusion alterius). Thus, intangible elements that are not explicitly recognized as products by the EU Directive and by the American policy documents cannot be qualified as products by analogy. Overall, the current definitions of product as provided by both the EU and US would be characterized as restrictive and not at all flexible. By concentrating on the requirement of tangibility, they cannot accommodate other items, mainly intangible items, which have emerged as a result of technological evolution. Damage scenarios stemming from defective intangible items and new technologies is quite a likely scenario for the near future. Nonetheless, in light of the tangibility requirement, the victims of these scenarios will not be able to benefit from the application of strict liability. Instead, potential victims in those kinds of cases would only be able to obtain recovery under negligence theory, based on fault. 4.4 A further element to be taken into account: the service versus product dilemma Besides the good understanding of the definition of a product, a further element which affects the boundaries of product liability and should be taken into account is the distinction between products and services31. In general,

30 One should note that the express inclusion of electricity in the EU Directive for liability caused by defective products indicates a deviation from the rule that cannot become a source of analogy. Moreover, it should be noted that the inclusion of electricity by the EU Directive dealing with damage from defective products is connected with the qualification of electricity as a good by the European Court of Justice for the purposes of including it in the regime of the free movement of goods. In this regard, see more specifically: Case C-158/94, Commission versus Italy, 23rd of October 1997. 31 David Lanneti, footnote 23 esp. p. 865-870.

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product liability law supports the view that service providers unlike product manufacturers are not held strictly liable for the provision of defective services. Instead, victims of defective services can seek compensation under negligence theory based on fault32. The basic rationale for applying negligence to service providers is based on the approach that a service provider practices an inexact science and thereby should be held only liable to a reasonably prudent person standard. Notably, this rule is valid both in the EU and the US. In this respect, it is worth stating that the EU Directive for damage caused by defective products explicitly recognizes that its provisions apply only to products, and not services33. Similarly, the 3rd Restatement of Torts follows the same approach by distinguishing between products and services and by explicitly providing that services cannot be recognized as products. However, the question of where the boundaries are between services and products logically arises. In general, the distinction between the sale of a product and the provision of a service in many cases is not always very clear: As one legal scholar observes, a product is delivered to the buyer in the course of the seller’s rendering the service34. But still, this distinction remains significant since in the end it determines the type of liability. In exploring the limits between services and products, policy makers and Courts have applied different approaches. The commercial/professional test and the essence test are two specific examples35. Under the professional test, if the defendant is professional and the transaction arose as a result of his professional activities then someone can speak about the provision of services and thus, strict liability will not be applicable. Under the essence test, the most important aspect is to investigate the basic essence of the transaction. In other words, there is an inquiry on whether the essence, the most prevailing aspect, of the transaction was the service rendered or the product supplied. If the service aspect prevails then there is no possibility of applying product liability law. A third and final approach for the determination of the 32 Charles Cantu, “The Illusive meaning of the term product under section 402A of the Restatement (Second) of Torts”, 44, Oklahoma Law Review, 1991, p.635, esp. p. 637. 33 Helen Delaney and Rene van de Zande, “A Guide to the EU Directive Concerning Liability for Defective Products (Product Liability Directive)”, in NIST GCR 01-824, 2001, p.1, esp. p.1-5. 34 Annita Bernestein, “How can a product be liable”, 45 Duke Law Journal, 1995, p.1, esp, p. 65. 35 David Lanneti, footnote 23, esp. p. 865-866.

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provision of services or goods is that of a case by case analysis; in other words, each case is examined differently in order to determine whether a transaction entails a product or a service. Over the course of time, service transactions have played an important role as technology evolves. Service transactions today outnumber product transactions. In addition, new technologies, due to their expanding developments and intangible nature, will continue to blur the distinction between goods and services. Nonetheless, the distinction has been maintained both in the EU and the US and will continue to play an important role for the application of the concept of strict liability and product liability more generally. 4.5 Preliminary conclusions for GNSS technology: current product liability law and its impact on GNSS Having considered the most important elements of the concept of product liability both in the US and the EU, one can now raise the question of whether there is any impact of the concept of current product liability law on GNSS. The starting point is that GNSS will not operate in a legal and regulatory vacuum. Conversely, current law, including liability law, will be relevant. Therefore, one can raise the following question: what -if any- are the legal ramifications of current product liability law for GNSS liability risks? In order to answer this question, it is important to bear in mind the architecture of GNSS and in particular the distinction between the space segment (i.e. satellites), the ground station, the specific technology being exploited by the user (i.e. navigational receiver) and finally the use of navigational satellite signals. As demonstrated above, the current points of reference from a product liability perspective impose a tangibility requirement for the definition of product. Therefore, one can reach the conclusion that tangible GNSS elements might be qualified as products. Hence, damage scenarios coming from defective satellite components or defective GNSS receivers’ hardware will most likely be addressed by current product liability law; strict liability will, thus, be applicable in these cases. On the contrary, intangible elements in the chain of the provision of GNSS will not be qualified as products. Given the fact that the current points of reference for the definition of product both in the EU and the US adopt a strict and not flexible definition of products by imposing the requirement of tangibility, one can conclude that damage scenarios stemming from defective GNSS receivers’ software 193

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and from erroneous navigational signals will not be covered by product liability and strict liability. It is the most likely scenario that in those cases of damage stemming from defects in the intangible GNSS elements, recovery will be obtained under the theory of service provision. In other words, the provision of GNSS software and GNSS signals will most likely be qualified as service. Therefore, if the provision of these services is proven defective, then recovery will be possible under negligence theory based on fault. 5. Reconsidering the Definition of a Product: Would an Alternative Approach be Possible? 5.1 An evolutionary interpretation of the term ‘product’ by the US Courts beyond tangible goods In recent decades, one might have noticed an expansion of the application of product liability, especially by the US Courts, beyond traditional tangible goods. In addition, it is important to add that the American Courts have ceased to distinguish in many instances between services and goods. One can find a certain number of decisions of the US jurisprudence dealing with the issue of liability resulting from defectively marketed information where the US Courts embraced the notion that information found in printed materials36 (i.e. aeronautical charts) would be considered as a defective product for the purposes of applying product liability and strict liability. What is more, one American Court has taken the view in obiter dictum37 that computer software, despite its intangible nature, might be qualified as a product

36 See e.g. Sallomey v. Jeppesen &Co., 707F.2d 671, 676-77 (2d Cir. 1983); Aetna Cas & Sur. Co. v. Jeppesen &Co., 642 F. 2d 339, 342 (9th Cir, 1981). However in the case Winter v. G.P. Putnam’ s Sons, 938 F. 2d 1033, 1035 (9th Cir. 1991), the American Court came up to the conclusion that information contained in books (“encyclopedia for mushrooms”) does not constitute a product for the purposes of applying strict liability. 37 See Winter v. G.P. Putnam’ s Sons, 938 F. 2d 1033, 1035 (9th Cir. 1991); briefly in this case the 9th Circuit postulated in its analysis potential products that might be analogous to aeronautical charts which had been held by some Courts as to be products. Moreover, it should be stressed that many scholars have advocated the view that computer software should be treated as a product for the purposes of applying product liability law; see e.g. L. Nancy Birnbaum, “Strict Product Liability and Computer Software”, 8 Computer L.J., 1988, p. 135, esp. p. 138.

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and thereby strict liability might be applicable. In addition to defectively marketed information and computer software, electric and gas utilities have also been recognized as a product in a number of cases38 by the American Courts. By taking into account the aforementioned analysis for product liability as well as the strict definition of product as provided for by the different US legislative and policy documents, one would not have expected the American Courts to extend the concept of product liability to intangible goods. However, the American Courts decided to follow a different line of thinking in the aforementioned cases. Generally speaking, over the last decades the American Courts seem to have adopted a more dynamic definition of product for the purposes of applying product liability law. Although the current points of reference from a legislative perspective centre upon the tangibility requirement for delimitating the boundaries of product liability law and retain the distinction between services and products, American Courts have taken a different, yet more expansive view, by applying strict liability to many intangible goods. What is more, the American Courts in a certain number of cases have started abandoning the distinction between products and services and applied product liability also to areas which in the past were traditionally characterized as services39. In light of this evolutionary approach, a number of intriguing questions can now be imposed. First, why did the US Courts decide to deviate from the tangibility requirement? And more importantly, is there any potential impact of this evolutionary approach on intangible GNSS elements such as in cases of damage caused by defective GNSS software or by the use of erroneous GNSS signals? 5.2 Public policy considerations of product liability law and technological evolution In order to assess the reasons why the US Courts have adopted a more evolutionary approach in the definition of product, it is first necessary to un-

38 Schriner v. Pennsylvania Power &Light Co., 501A.2d 1128, 1133 (Pa. Super. Ct. 1985). Yet, Elgin Airport Inn, Inc. v. Commonwealth Edison Co., 410 N.E. 2d 620, 624 (3rd App. Ct. 1980). 39 See William Russel, discussing some of these cases in his note on “Products and the Professional: Strict Liability in the Sales-Service Hybrid Transactions”, 24 in Hastings Law Journal, 1972, p. 111, esp. p. 114.

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derstand the public policy goals behind product liability law in the US more generally. In this regard, of vital importance is the concurrence opinion of Justice Traynor as expressed in the case “Escola v Coca Cola Bottling”40. In short, four broad categories of policy goals for the application of product liability law were recognized by Justice Traynor. These essentially can be summarized as follows. First, the party best able to detect and eliminate product defects should be held liable. Second, the party best able to absorb and spread the losses should be held liable. Further, the injured party should not be prevented from recovery due to problems of proof concerning the defect. Finally, consumers should be able to rely on the marketing of manufacturers. In light of these policy considerations and of the technological evolution, a more dynamic and evolutionary approach with respect to the definition of products emerged in the US. The American Courts in various areas recognized that technological progress demands a more flexible approach in the application of product liability and tort recovery more generally. New products, and new risks, as a result of technological evolution have appeared in the market. Interestingly, these products do not fulfill the tangibility requirement as provided for by current US legislative and policy documents. Electric light and power, the telephone, radio, radar, television, the automobile, the airplane, nuclear power, numerous consumer goods with an important informational element and all kinds of complex industrial machinery are some examples. All of these new products contain a number of risks. Thus, the possibility of having damage as a result of defects in these products is quite a likely scenario. Nonetheless, due to their intangible nature, recovery under negligence in many cases would be an insurmountable aspect preventing potential plaintiffs from recovery. Hence, the US Courts based upon the public policy considerations as expressed by Justice Traynor as well as the technological evolution decided to follow a more dynamic yet more flexible approach in the application of product liability. Consequently, many new areas, despite their intangible nature, were recognized as products for the purposes of applying strict liability. Notably, as one legal scholar observes41, once Justice Traynor introduced the policy objectives of strict liability, the expansion of the doctrine beyond traditional tangible goods proceeded at a remarkably rapid rate in the US Courts. 40 150 P.2d 436, 440, (Cal. 1944), Escola Case, Traynor J., concurring opinion. 41 John Wade, “Product Design Defects and Their Actionability”, 33 Vand. L. Review, 1980, p. 551, esp. p. 555.

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5.3 Impact of evolutionary definition of product liability on the intangible GNSS elements: GNSS software and GNSS signals Considering the evolutionary approach as developed by the American Courts for the definition of product, one might argue that this approach can have potential implications for GNSS product liability issues as well. As already discussed, according to current law, only tangible GNSS elements might be qualified as a product due to the tangibility requirement and the strict definition of product. Nonetheless, if someone adopts the evolutionary interpretation of the term product, he might suggest the view that also intangible GNSS elements, such as GNSS receivers’ software or GNSS signals, might be qualified as products for the purposes of applying strict liability. The starting point is that GNSS make use of advanced technology which contains inherent risks. Under the negligence rule, potential victims having suffered damage from defects in the intangible GNSS elements might not be able to prove fault. This, therefore, might result in situations with complete denial of recovery. Thus, based upon the public policy considerations of product liability, one might take the view that product liability will be the most appropriate cause of action in the aforementioned situations of damage. A further element that might result in the application of this evolutionary approach for intangible GNSS elements is the fact that navigational satellite signals share a number of common characteristics with information derived from aeronautical charts. Both aeronautical charts and navigational signals have an important informational-intangible element. Moreover, both charts and navigational signals can be used for the same purposes such as navigation. Given the fact that information derived from aeronautical charts has been recognized as a product, a same approach might be followed if a potential case of damage caused by GNSS signals would appear before an American Court. 5.4 Difficulties in applying the evolutionary approach in the definition of product to intangible GNSS elements It is beyond any doubt that the evolutionary approach in the application of strict liability for damage caused by intangible GNSS elements would be a beneficial solution for potential victims. By imposing strict liability potential victims do not need to prove fault. Nonetheless, certain difficulties might

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arise when someone attempts to expand the doctrine of product liability to intangible GNSS elements. In general, GNSS contain a number of specific characteristics. For the time being two GNSS systems are operational, namely the GPS and the GLONASS. In the near future, an additional structure will become operational, that is to say Galileo. Notably, all these structures are owned and operated by State entities and/or supranational organizations. For the near future, it is a likely scenario that some categories of these services will be offered by private undertakings. Nonetheless, for the time being, public entities predominate the scene. In general, state entities in many instances can benefit from the doctrine of state immunity42. Thereby, the application of the concept of strict liability might by hindered by the invocation of the state immunity defense. An additional element which further complicates the situation is that the victims when they try to benefit from product liability should prove a defect in the product which ultimately caused the damage. In principle, there are two types of defects, that is to say manufacturing defects and design defects. Whereas for tangible GNSS elements it might be an easy task to prove manufacturing or design defects, for intangible elements of GNSS (i.e. navigational signals), this task might be difficult, even insurmountable. For instance, how would someone define a defective satellite signal? Furthermore, how can the concept of manufacturing/design defects be adapted in order to accommodate defective satellite signals? In response to these questions, one can draw comparisons from the field of electric utilities. Electric utilities have been recognized as a product for the purposes of applying product liability law. Yet, electric utilities can raise the same problems as regards the definition of defective electric utilities. Nonetheless, the Courts in a certain number of cases have taken the view that there is a possibility to apply the concept of manufacturing/design defects to electric utilities and thus strict liability can be applied43. Would a similar view be followed in the field of satellite signals? A possible scenario for speaking about design/manufacturing defects regarding the provision of signals can be described as follows: a satellite system has to provide a signal

42 See: European Convention on State Immunity of 16th May 1972 & United Nations Convention on Jurisdictional Immunities of States and Their Property of 2nd December 2004. 43 Pierce v Pacific Gas & Elec. Co., 166 Cal. App. 3d 68, 76-77 n.1, 212 Cal. Rptr. 283, 287 n.l.,1985. See also: Beacon Bowl, Inc. v Wisconsin Elec. Power Co., 176 Wis. 2d 740, 792, 501 N.W. 2d 788, 809, 1993.

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which should conform to its declared specification. The declared specification is determined according to four criteria, namely accuracy, integrity, continuity and availability44. First, accuracy refers to the difference between the measured and the real position, speed or time of the receiver. Second, integrity refers to a system’s capacity to provide confidence thresholds as well as alarms in the event that anomalies occur in the positioning data. Third, continuity refers to a navigation system’s ability to function without interruption. Finally, availability refers to the percentage of time during which the signal fulfills the accuracy, integrity and continuity criteria. One, subsequently, might argue that problems as regards the declared specification of GNSS signals (such as the case of wrong integrity information or wrong continuity) might be compared with design defects. Thus, the possibility of recognizing a signal as defective under the concept of design/manufacturing defects would be a difficult but still feasible scenario. 6. Conclusion There is no doubt that we are in the midst of a technological revolution. There is also no doubt that the remarkable progression in technological advancement will be accompanied by injuries resulting from defects associated with those new kinds of technologies. One of these areas which is based on advanced technology is that of GNSS. Generally speaking, GNSS technology is associated with positive and negative aspects. Many areas can benefit from the use of GNSS. But still, as GNSS technology evolves, it is a likely scenario that sooner or later the legal community might have to confront liability risks and challenges. In particular, who should be held liable for those cases of damage resulting from defective GNSS elements? And further, under which liability regime? In light of the evolutionary approach, as emerged in the US, for the application of product liability law, one might suggest that product liability law will be the most appropriate legal regime for addressing liability risks arising in the course of the provision of GNSS. By imposing strict liability, it would be easier for potential victims of defective GNSS technology to obtain recovery. Conversely, one might argue that product liability law is 44 See also: Mariagrazia Spada, “Criteria Minimizing Legal and Financial Risks in Airspace Business”, Aerospace Conference, 2008 IEEE, 10.1109/AERO. 2008.4526682 (2008), esp. p. 2.

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not the appropriate legal basis for addressing liability risks arising in the course of the provision of GNSS. According to the law and economics analysis, the imposition of strict liability might hinder innovation for GNSS applications. Consequently it might also result in more expensive, less accessible GNSS services. Additionally, there are also problems of immunities, of causation as well as of defining the notion of a defective signal for the purposes of applying product liability law. All in all, product liability law is a contested, yet dynamic area of law. Fortunately, thus far, there is no liability incident which has been reported as a result of using GNSS. Nonetheless, in light of the advent of the civilian structures for GNSS, it is a likely scenario that damage might be sustained in the near future. Thus, it remains to be seen by future legal analysis and case law whether the evolutionary definition of product will accommodate situations of damage stemming from defective GNSS software and more importantly from erroneous GNSS signals. Bibliography Francis Schubert, An international Convention on GNSS Liability: When Does Desirable Become Necessary? Annals of Air and Space Law, vol. XXIV, 1999, p. 245 et seq. Alexander Andrade, The Global Navigation Satellite System, Ashgate Studies in Aviation, Economics and Management, 2009. Frans G. von der Dunk, Liability for Global Navigation Satellite Services: A comparative Analysis of GPS and Galileo, Journal of Space Law, 2004, p. 129 et seq Joseph Reutimann, Defective information: Should Information be a Product Subject to Liability Claims? Cornel Journal of Law and Public Policy, Vol. 22, 2013, p. 181 et seq.

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Mahulena Hofmann is holder of the SES Chair in Satellite Communications and Media Law at the University of Luxembourg since 2011. Prior to her appointment at the University of Luxembourg, she was the holder of the Jean Monnet Chair in European Law at the University of Giessen. For many years she served as a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. Mahulena Hofmann defended a PhD in Remote Sensing of the Earth from Space – Legal Aspects at Charles University, Prague and a ‘habilitation thesis’ on The Position of International and European Law in the Legal Systems of the Transformation Countries at the University of Cologne. Her memberships on the Board of the International Institute of Space Law and on an Expert Committee of the Council of Europe dealing with regional and minority languages allow her to concentrate on various aspects of satellite communication and media law. She is a full member of the International Academy of Astronautics. Srinivasan Venkatasubramanian is Head of the Space Systems Coordination Division in the Radiocommunication Bureau of the International Telecommunication Union (ITU), Geneva, Switzerland. Before joining the ITU in 1999, he was Deputy Wireless Adviser to the Government of India in charge of the Space Services Department and was responsible, inter alia, for coordination of the INSAT satellite system. During his tenure with the Indian Telecommunication Administration, for more than 20 years, he held various positions involving various aspects of Spectrum Management and represented India in numerous meetings and conferences of the ITU. Francis Lyall is Emeritus Professor of Public Law of the University of Aberdeen, Scotland, UK. A Member of the International Academy of Astronautics he is an Honorary Director of the International Institute of Space Law. The author of numerous articles on a wide range of subjects, he has authored or co-authored several academic books. They include: Law and Space Telecommunications, Aldershot, UK: Dartmouth, 1989; International Communications: The International Telecommunication Union and the Universal Postal Union, Farnham UK: Ashgate, 2011; Space Law: A Treatise,

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Farnham, UK: Ashgate, 2009, with Paul B. Larsen; and, also with P.B. Larsen, edited the collection Space Law, Aldershot, UK: Ashgate, 2007. Gerry Oberst is Senior Vice President, Global Regulatory & Governmental Strategy, for the global satellite operator SES. Before taking this position with SES, Gerry was a partner with an international law firm, working in Washington, DC, and Brussels, Belgium to advise numerous clients on communications and media issues, including the European Commission on spectrum trading, the digital transition and international licensing. He has participated in numerous satellite and space law conferences, and lectured at university space law courses. He has published widely on satellite issues, authored in 2009 “The Consolidated EU Electronic Communications Regulatory Framework – showing the 2009 Amendments,” and for many years wrote the regulatory column for Via Satellite magazine. He is a member of the International Institute of Space Law, the Federal Communications Bar Association, a member of the board of the Satellite Industry Association and former chairman of the European Satellite Action Plan Regulatory Group. Tanja Masson-Zwaan is Asst. Professor and Deputy Director of the International Institute of Air and Space Law at Leiden University, and is President of the International Institute of Space Law (IISL) since 2007. She is an expert in space law since more than 25 years. She advises the Dutch Government and the European Union, teaches and supervises students at Bachelors, Masters and PhD level, carries out various research activities, publishes on a broad range of topics, and was appointed by the Dutch Government as an arbitrator for space related disputes at the Permanent Court of Arbitration. She set up courses in air and space law at the National University of Singapore, and worked as a consultant in France and the Netherlands for industrial and institutional clients. Tanja is a recipient of the Distinguished Service Award of the IISL (2001) and of the Social Sciences Award of the International Academy of Astronautics, IAA (2008). She is inter alia an advisor to Mars One, an advisory board member of Space Generation Advisory Council, a member of IAA, ILA, ECSL and was a member of the founding board of Women in Aerospace-Europe. Peter Malanczuk is C.V. Starr Professor of Law at the Peking University School of Transnational Law. He is an External Fellow of the Max Planck Institute, Luxembourg for International, European and Regulatory Procedural Law and a member of the Academic Advisory Council of the Univer-

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sity of Heidelberg. His previous positions include Dean and Chair Professor of the School of Law of the City University of Hong Kong; Professor at Erasmus University Rotterdam and the University of Amsterdam; Legal Assistant to the President of the Iran-United States Claims Tribunal in The Hague; Research Fellow at the Max-Planck Institute in Heidelberg; Lecturer at the University of Exeter, England; and Academic Assistant at the University of Giessen, Germany. He also served as Legal Counsel to Iraq before the UN Compensation Commission for Claims against Iraq arising from the Kuwait War (UNCC). He was Special Legal Advisor to Ethiopia regarding border issues and compensation claims in the war with Eritrea, and was appointed by Ethiopia as arbitrator of the Eritrea-Ethiopia Claims Commission. He is also an international arbitrator and member of a number of panels of arbitral institutions (HKIAC, CIETAC, BAC, GZAC, CAA Taipei, KLRCA, SCIA). He is a Council Member of the new Shenzhen Court of International Arbitration in China. He served as a member of the Hong Kong Telecommunications (Competition Provisions) Appeal Board and the Hong Kong Inland Revenue Review Board. He has been awarded honorary professorships from Peking University; People’s (Renmin) University of China; Nankai University, China University of Politics and Law; Nanjing University; and Shenzhen University. Frans von der Dunk holds the Harvey and Susan Perlman Alumni/Othmer Chair of Space Law at the University of Nebraska-Lincoln’s unique LL.M. Programme on Space, Cyber and Telecommunication Law. He is also Director of Black Holes BV, Consultancy in space law and policy, based in Leiden. He was awarded the IISL Distinguished Service Award in 2004 and the IAA Social Science Award in 2006. He has written more than 130 articles and published papers, has given more than 140 presentations and was visiting professor at over 30 academic institutions. As of 2006, he is the Series Editor of ‘Studies in Space Law’. In both academic and advisory capacities he has worked with many governments, international organizations (UN, ESA, EU, OECD), national space agencies and the space industry on legal issues pertinent to space activities. He was on the advisory committee drafting the PCA Rules on Outer Space Disputes. He serves as the Director of Public Relations at the International Institute of Space Law (IISL) and as Board Member of the European Centre for Space Law (ECSL). He was the single lawyer on the Panel established by the Association of Space Explorers (ASE) to address Near-Earth Object mitigation strategies, as well as on the Euro-

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pean Space Sciences Committee (ESSC) of the European Space Foundation (ESF). Ioanna Thoma works as a lawyer at the Legal Department of the European Space Agency. Before joining ESA she specialised in the fields of private international law, international arbitration and competition law and worked for international law firms in Paris, London and Brussels. At the same time she combined her practical experience with teaching at Christ Church (Oxford), Brunel West London and the Law Faculty of the National and Kapodistrian University of Athens. She holds a law degree and a master’s degree from the National and Kapodistrian University of Athens, an LL.M from Harvard Law School, an MSt from the University of Oxford and a doctorate degree from the University of Hamburg. Susan Poser became the Dean of the University of Nebraska College of Law in May 2010. She received her B.A. in Ancient Greek and Political Science from Swarthmore College and her J.D. from Boalt Hall School of Law at the University of California, Berkeley. In 2000, She received a Ph.D. in the Jurisprudence and Social Policy Program from the University of California, Berkeley with a dissertation on the remedial phase of desegregation litigation. After law school, Dean Poser was a law clerk to Chief Judge Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit. She practiced law in Philadelphia and was the Zicklin Fellow in Ethics in the Legal Studies Department of the Wharton School at the University of Pennsylvania, before coming to Nebraska as a faculty member. In Spring 2004, she was a visiting professor at the Boalt Hall School of Law at the University of California, Berkeley. From 2007-2010, Poser served as the Associate to the Chancellor at the University of Nebraska-Lincoln. Susan Poser's research interests include professional responsibility, with a focus on Multijurisdictional and Multidisciplinary Practice. Andreas Loukakis was born in 1984 in Athens, Greece. Since February 2012, he has been an Assistant and Doctoral Candidate at the Faculty of Law, Economics and Finance at the University of Luxembourg, and is currently working on a PhD dissertation which deals with the liability aspects of spacebased services under the supervision of Professor Mahulena Hofmann. Prior to his doctoral research project, he received an LL.M degree in European and International Law from the University of Maastricht, the Netherlands, in April 2011, and a Law degree from Democritus University of Thrace,

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Greece, in December 2007. In June 2009, Andreas Loukakis was appointed as a full member of the Athens Bar Association. Before that, he gathered his practical experience as a trainee lawyer in law offices in Greece. Additionally, from March 2011 until August 2011, he was a Robert Schuman scholar in the legal service of the European Parliament in Brussels. Since February 2013, Andreas Loukakis has been appointed as a prospective member of the International Institute of Space Law.

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