National Sovereignty Over the Geostationary Orbit

A recent comment on my article, "Who Owns the Geostationary Orbit?" in the Annals of Air and Space Law, Vol. XXXI:

This is an excellent article and a very convincing argument – I’m definitely going to cite it in my upcoming works. I guess what’s particularly interesting to me is something you also point out in the article – although the reasoning behind the Bogota Declaration is clearly spurious (as your article shows so well) it seems to me that there is, however, something peculiar about the geostationary orbit. The GSO seems unlike other orbits to me in the sense that it seems to be much more of a kind of ‘fixed territory’ in the sense that there’s a limited amount of “space” (forgive the pun) there. Countries who’ve placed payloads into that orbit, it seems to me, “occupy” it in a de facto sense. I haven’t done any historical research into this whatsoever, but I imagine the Bogota Declaration was probably a poorly reasoned way of developing nations to stake a future “claim” on space in that orbit, despite the fact that they were/remain unable to utilize it. I imagine the equatorial states worry that by the time their countries have the economic means to deploy their own payloads into GSO, there will be no room left (I’ve read that GSO ‘slots’ will probably fill up in the next few decades). I think you’re right in pointing out that the closest land analogy to the orbit is Antarctica, but there’s a key difference: Antarctica isn’t going to be ‘filled up’ anytime in the foreseeable future, has little commercial potential, and has little military value. The GSO has all. This is certainly not a criticism of your article – I’m trying to get at a different question than the one you’ve raised. I’m interested in trying to think about the GSO as a kind of “territory” in precisely the way your article seems to suggest we should think about it.

Let's address some technical concerns first. A small equatorial state such as Ecuador could just as easily be served by a geostationary satellite positioned above a point in the Pacific Ocean a degree or two to the west of its territory: just point the ground antennas a few degrees to the west. The interests of Ecuador wouldn't be harmed or diminished in any substantive way. On the other hand, a large equatorial state such as Brazil has so large an arc of the GSO above its territory that it ought to be fairly easy to share that arc with other users. Of course, given more users, GSO slots will tend to fill up, all other things being equal. However, all other things are not equal. Using 1960s technology, the GSO slots would have filled up many years ago, but as satellite communications systems have become more capable, more utility has been extracted from each GSO slot.

Now to the legal issues. The "fixed territory" character of the geostationary orbit is an illusion, and therefore so is any claim over a segment of the GSO based on national territory. Imagine two automobiles traveling along a road side by side in adjacent lanes at the same speed. From the point of view of one, the other is stationary, yet neither one is stationary. One car has no claim over the space in the adjacent lane. The other auto has the right to pass through that adjacent space, or to remain in that space for some unspecified time.

The geostationary orbit is a consequence of the Earth's rotation; if the Earth did not rotate, there would be no GSO. Suppose there were a nation on the Moon centered at zero degrees latitude, zero degrees longitude, and extending for several degrees from this point north, south, east and west. There would be an object constantly occupying the arc of selenostationary orbit directly above this lunar state's national territory, and according to the reasoning of the Bogota Declaration, the object permanently occupying this selenostationary slot would be the national territory of this lunar state. That object is Earth.

The right to overfly national territory is absolute, regardless of the transit time. This right of overflight became instant customary international law with the launching of Sputnik 1 and the absence of objection by any overflown state. According to Article 2 of the Outer Space treaty, no part of space, including any segment of the GSO, is "subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." Certainly, a satellite positioned in the GSO uses and occupies that position, but Article 2 prohibits neither use nor occupation, it only prohibits either of these as a means of national appropriation. The use and occupation of GSO slots is is clearly not national appropriation, since these slots are licensed by an international organization, the International Telecommunications Union.

I am not unsympathetic with the concerns of equatorial states, that they may become launching states in the future, and find that their national interests conflict with the interests of those of other entities who have satellites in the GSO above their national territory. These interests will need to find an equitable balance, which suggests that the rules of the ITU may need some adjustment in the future to accommodate new users of the GSO.

By the way, an unintended consequence, not considered by those who disparage the Article 2 principle and who would like to see successfully asserted claims to territory on the Moon, is that any such successfully asserted claim would jolt the life-force into the Bogota Declaration, setting loose a Frankenstein monster upon the international law regime of outer space.