Symposium: Small States, Legal Argument, and International Disputes
Space law, the Kingdom of Tonga and
the late-comer problem
by Michelle Chase
Published on 21 July 2023
Can late-coming small states change a treaty regime for their benefit? This post explores the difficulties small states may face in challenging inequitable legal regimes, and how seeming victories can be turned against them in legal argument, through the Tonga geostationary satellite dispute of 1989-1990.
The US and Soviet Union were the only states with an independent space capability when the 1967 Outer Space Treaty (OST) established the legal regime for outer space, giving them latitude to shape this constitutional agreement to suit their interests, obtaining their agreement was widely seen as essential to the effectiveness of the regime. This, in turn, made it hard for small states, later-comers to space, to have their needs met within the regime. As we will see, this was to prove problematic for Tonga in their subsequent legal tussle over access to particular satellite orbits.
The OST addresses how space is to be used and whether there are to be parameters around that use. Articles I and II are key to what was decided: that ‘space shall be the province of all mankind’ with free access to, and use of, outer space for all states with no part of space subject to national appropriation.
Developing states soon expressed dissatisfaction that the non-appropriation principle favoured early movers with the technological capacity to take advantage of the benefits of space right away. One place where late-comer states felt particularly disadvantaged was the highly desirable geostationary Earth orbit (GEO). Developing countries had a point. In 1964, NASA’s Syncom 3 was the first satellite in GEO. The following year COMSAT’s Early Bird was the first privately owned satellite in GEO. By 1966, all 11 satellites in GEO were American. In 1982, of 74 satellites in GEO only four belonged to developing states.
Despite constitutional agreements being hard to change, developing states lobbied successfully in the International Telecommunications Union (ITU), the international organisation that administers the slots, to have the approach to GEO changed. They first succeeded in having GEO declared a ‘limited natural resource.’ On this basis, they subsequently argued for, and secured, the reservation of GEO slots for late-comers.
This brings us to the short-lived dispute of 1988–90 between the Kingdom of Tonga and INTELSAT, the US-based intergovernmental communications satellite consortium. The dispute centred on Tonga’s right to occupy and lease to third parties the slots in its ‘reserved section’ of GEO. In 1988–89, Tonga claimed the 16 slots it was entitled to and announced that it would lease them to interested parties at USD2 million per slot per year. The anticipated lease income would have increased the budget of Tonga by 20%. INTELSAT reacted furiously to Tonga’s plan to occupy valuable GEO real estate. INTELSAT’s Director-General opposed the claim on the grounds that Tonga was turning GEO into property; that the claim was for ‘pecuniary gain and commercial exploitation’ and ‘greatly in excess of any projected needs of the ITU member.’ This was contrary, he argued, to GEO’s recently declared status of a ‘limited natural resource’.
One striking aspect of the dispute was that Tonga’s claim was lawful but did not appear legitimate to other actors in the regime. INTELSAT’s objections were not based on Tonga’s failure to comply with the relevant rules and regulations, but seemed to be measured against some hidden yardstick of legitimacy. The literature on the dispute has tended to view INTELSAT’s arguments sympathetically, concluding that while Tonga’s claims did not violate ITU rules, they violated the spirit and principles of the ITU and the OST.
What, then, does this dispute tell us about the obstacles that late-comers face in having their interests accommodated in an existing international legal regime? How does it help us understand the process by which the behaviour of some states in the regime appeared legitimate whereas similar behaviour by others did not?
International law as ideology theory, as developed by Scott, suggests that the key to understanding this dynamic is the ‘foundation ideology’ that underpins a multilateral treaty. The foundation ideology is the fundamental idea or principle, widely (though not universally) assumed to be true that gives a treaty its overall logical coherence, justifies the substantive provisions and embeds a particular power structure within the regime.
When we examine the preamble of the OST and look at the ideas about space that were widely accepted in the political milieu of the mid-1960s, the idea that all mankind has a common interest in the exploration and use of outer space for peaceful purposes emerges as the likely contender for the foundation ideology.
Importantly, the ‘common interest’ foundation ideology precluded the exploration and use of space in the national interest. Outer space was to be a frontier explored not in the national interest but ‘in the interests of all countries’ (Article I). Outer space was ‘not subject to national appropriation’ (Article II). Astronauts were to be ‘envoys of all mankind’ (Article V) not state representatives. National achievements of the space powers were rendered as achievements of all humanity.
Actions that appear to be consistent with the foundation ideology will appear legitimate in the context of the regime, to some degree independent of their degree of lawfulness. And the reverse is also true: actions that are inconsistent with the foundation ideology, even if lawful, will appear illegitimate and a violation of the ‘spirit’ of the law. So, Tonga’s plan to claim and lease GEO slots for its national benefit, even though not in contravention of the ITU and OST rules, failed the ‘common interest’ test. And because the foundation ideology justifies and sustains an inequitable distribution of power, it is not easy to change, especially once it is instantiated in a multilateral treaty.
The Tonga dispute illustrated this resilience well. The ‘common interest’ ideology absorbed the idea of GEO as a ‘limited natural resource’, redeploying the concept first proposed by developing states to create room for themselves in GEO to exclude and delegitimise Tonga’s access. Herein lies the late-comer problem. It might be possible to change the rules, as it was in the ITU, but absent a much bigger challenge, the foundation ideology and the inequitable power structure it underpins will tend to endure in a mutually-reinforcing dynamic. The foundation ideology will adapt and respond to rivals to sustain itself and be deployed by early movers to protect their privileged position.
Michelle Chase is a Scientia PhD Scholar at UNSW Canberra working on the interaction of global structures of power and processes of change in the international space law regime.