The Future of Commercial Space Law and Regulation: Orbital Arc Regulation – Transitioning from Government to the Private Sector Over the Long Term

June 7, 2011 at 11:20 am | Posted in Blogcast, Space Law | Leave a comment

by P.J. Blount with th blog faculty

Lunch presentations were given by Giovanna M. Cinelli, Partner, Jones Day Wahington, DC; Elizabeth Evans, Partner, Jones Day New York; and Del Smith, Senior Telecommunications Counsel, Jones Day Washington, DC.

Smith started with a brief overview of Tongasat episode, and how this effected the practice of orbital slot allocation. Smith analyzed the occurrence as to whether this “appropriation” of the orbital arc was legal and whether it was fair. He gave an overview of the issues involved including issues of non appropriation, free access, and equitable access.H also addressed procedural hurdles in gaining GEO allocations. H suggested that a market approach might be a valuable way to deal with orbital slot allocation in the future.

Smith turned the floor over to Evans. She discussed current orbital arc regulation and ways to move forward. She noted that the space law regime is a product of the Cold War, and the Outer Space Treaty and its progeny were the core of international outer space law. Next she discussed the International Telecommunication Union (ITU) regime, which regulates GEO arc positions at the international level. She stated that it was a very complex system, and that it lacked legal certainty which is problematic for businesses. She noted that the ITU bars allocation to private entities. She also stated that there were issues for the role of developing countries should be in this system. The result is that the ITU has a dual allocation system which incorporates first come first served with equitable allocations. She highlighted other issues including the ITU’s lack of enforcement capabilities, and its inability to stop States from violating slot allocations. She then moved on to discuss whether there was a need for private sector regulation. She stated that it would, but that such a system could not work without a binding dispute resolution mechanisms. She stated that States have been reluctant to adopt new limitations on their use of space, and that this was complicated by the potential for the weaponization of space. She then endorsed an international authority to regulate aerospace vehicles.

Cinelli presentation discussed legal hurdles to a transition to private regulations of orbital slot allocation. First, she discussed the United States space policy and regulation. She stated that the policy sought to facilitate commercial development, but also to pursue the object of national security. She noted that the policy is focused on cooperation as opposed to unilateral leadership. Then she turned to discussing export controls and how those effect the space policy and create hurdles to international cooperation. She concluded by noting that national security concerns such as these were a major hurdle to private regulation of orbital slots.

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