SATELLITE REGULATION UNDER INTERNATIONAL SPACE LAW: BASIC PRINCIPLES AND INSTITUTIONAL FRAMEWORK

Ademola O.  Popoola, Phd.

Department of International Law of 

Faculty of Law

Obafemi Awolowo University

ILE IFE Nigeria

Paper commissioned for Presentation at the International Conference on Electronic Commerce and Telecommunications in Nigeria.  Maximising the Benefits of the Digital Economy held at the Golden Gate Restaurant, Ikoyi, Lagos. 23 - 26 SEPTEMBER, 2002.

I           INTRODUCTORY PERSPECTIVES

A:         Space Communication and Application

Since the advent of the commercial uses of Satellites in the early 1960s with the launching of the “early bird” countries in Africa have utilising satellites for the provision of International communication.  In a broader context, the technology and equipment.

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Ademola O. Popoola, Phd Department of International Law, Obafemi Awolowo University, Ile Ife, Nigeria that have resulted from man’s early efforts in space exploration, beginning with high altitude aircraft balloons specialised sensors, and manned and unmanned space platforms such as the SPUTNIK, VOSTUK, VOSHOD, APOLLO, MERCURY, GEMINI, TIRUS, and ECHO series, are now finding wide applications on his (that is, man’s} everyday activity.  Specifically, he can now communicate with almost any part of the globe using the services of the INTELSAT and INTERSPUTNIK Satellite Communication networks.  The development, launching and exploration of the GEOSTAT, METEOSTAT, and cosmos series of meteorological satellites have also expanded his knowledge of the atmosphere and the characteristics of rain-bearing clouds.  Similarly man has acquired the capability to map, more accurately, his own geographical position on earth using geodetic space platforms.  And lately, as a result of the deployment of earth resources, space vehicles, along with their associated assessors, man has developed a system that would improve his knowledge of the resources of his land as well as enable him to evaluate the extent classification, quantity and temporal and spatial changes of these resources.  In sum space platforms and their associated sensors provide us with a unique capability to see and interact with large parts of the earth simultaneously (Adigun Abodunrin, n:d).

In this paper, our focus shall be on Satellite Communication with particular emphasis on the legal and institutional framework.  The truth of the matter is that satellite systems have evolved from the network - oriented approach connecting networks together to the user - oriented approach of providing services directly to the users.  Satellite have also developed from fixed applications to mobile applications and from telecommunications to broadcasting with DBS and DTH satellites.  Thus applications such as digital direct television broadcasting, mobile telephony, and broadband video and data services are now possible due to recent advances in satellite and ground equipment technologies.

As the Nigerian National Paper to the Third United Nations conference on the Exploration and Peaceful Uses of Outer Space Vienna, 19 - 30 July 1995, has identified (p.36).  Satellite systems have also been developed from the traditional use of geo-stationary orbit (G.S.O.)  Satellites at 3 000 km attitude to Law Earth Orbit (LEO) Satellites and medium Earth orbit (MEO) Satellites using orbits from under 1000 km to a far thousand kilometer altitude in various constellations. 

Consequently, these developments have revolutionised telecommunications and information services resulting in the global village and Global Information Highway (G.I.H.).  In sum - satellite services include in the language of the Nigerian National Paper.

(a)        More conventional services such as medium traffic and thinrout telephony point to point links (e.g. high rate data), TV distribution and tele-education etc and satellite news gathering (SNG).

(b)        Direct to Users Services such as DTH/DBS services;DAB, Data, VSAT; personal                         communications (including     possibilities of rural telephony) and multi-media services      (including TV; telephony, fast connections to Internet.

B.        SATELLITE APPLICATION IN NIGERIA

Before we proceed to examine the basic principles of International space Law, it is pertinent to note that here in Nigeria Satellite Systems are utilised NITEL for International telephone, fax and other telecommunications facilities offered by INTELSAT.  Nigeria is in fact a member of INTELSAT Private organisation and individuals also utilise a few types of IMMARSAT terminals (a mobile Satellite System). The VSAT Satellite Systems are also in use for data, telephony and other communication services.  The STAR and MESH configurations are the two most popular VSAT Systems.  It is worthy of note that VSAT has been useful as a solution to the problem of International connectivity for information networks (especially INTERNET) in some developing countries when regulatory situations permits its usage.  And the high speed capability of some megabits per second (mbps) has made the VSAT solution to information network in the developing countries more attractive.  Here in Nigeria.  VSAT has been utilised by private telecommunication providers and companies for telecommunication services within the country as a result of partial deregulation of the telecommunication industry.  A private company was indeed licensed  few years ago to offer VSAT services on the International route.  Two INTELSAT to Nigeria are utilised for the provision of network TV series by the Nigerian Television Authority (NTA).

C.        CHALLENGES AND CONSTRAINTS

It is remarkable that African countries have not participated actively in the evolution of the new satellite systems.  The utilisation of the modern satellite facilities in Africa has also been limited. This is also the situation with Nigeria inspite of her more advantaged resource potential.

It is against this background that the Nigerian National Paper (1999) has identified the following as the “Challenges” and “Constraints” in the field of Space Communications and Application in Africa.

1.         The Law teledensity in Africa (the lowest in the world.  A lot of investment is considered necessary if Africa is to join the rest of the world in modern telecommunication services.  The Nigerian condition is no better than the African average.

2.         Improved telecommunication network towards a 100% digital lines.

3.         Creation of an environment that will enable the successful setting up of sophisticated networks for access to advanced information technologies.

4.         The radio frequency spectrum and The orbital slots in the    geostationary orbit are limited natural resources which must be used efficiently and economically so that countries may have equitable access to them.  By the end of the 20th century it was estimated that Africa would only have e had about 530 units of c-band (4/6 GH2 band).  Ku-band (12/14 GH2 band) frequency transponders available to her out of the expected 9644 units to be used globally.  The fear is  that the available orbital slots may have become completely exhausted before countries like Nigeria and other Africa countries become ripe enough to launch their     own satellites.  Despite this Nigeria did not (as at 1999) have a satellite project.  There is, therefore an urgent need for investment in the technology in order to ensure that the country is assured of an orbital slot in the nearest future. There is also need for increased research to see to the possibility of a successful design of satellite systems in the V-band (40/50 GHZ band), by overcoming the attenuation due to rain in the V-band.

5.         An effective participation of Nigerian research centres in research and development in  telecommunication is yet to            form part of any deliberate national effort to benefit from       the technology.

6.         Whether TV or the Internet or telephone communications    satellites play a decisive role in the creation and transformation of markets especially in developing countries like Nigeria with highly promising market for many products.  In the fierce fight for the Nigeria telecommunications markets technology will prove once more benefit or evil.  Regulations and governments will therefore have to play a very delicate role to balance the benefits of market liberalisation and technology advance with the unexpected consequences on Nigeria.  The entanglement of these two facts, if not well managed may expose Nigeria to the risk of becoming another playing ground for big and small competitors in telecommunication markets to deliver the promises of improvements in economic growth and the advancement in social welfare.

It is against this broad background that we now proceed to examine the framework for the regulation of the Satellite Systems under International Space Law.

II.  NATURE, EVOLUTION AND SOURCES OF INTERNATIONAL SPACE LAW

International Space Law is that branch of International law governing relations among its subjects in connection with their activities on exploration and use of outer space, including celestial bodies.

It is remarkable that the emergence and formation of this branch of International Law is directly associated with the launching by the Soviet Union on 4 October, 1957 of the first artificial Earth Satellite, which not only marked the beginning of man’s active exploration of space, but also excited a deep influence on many aspects of social life, among them the sphere of International relations. 

it is relevant for our present purpose that even before the first special treaty on outer space was drawn up in 1967, a number of Legal principles and norms of International Space Law had taken shape in practice.  These included the principle of the non-existence of state sovereignty over outer space, otherwise known as the principles of the freedom to explore and use outer space.  Some legal principles and norms relations to activities in outer space have also been confirmed by resolutions unanimously adopted by the United Nations General Assembly.  Among these are Resolution No 1721 (XVI) of 20 December 1961 and Resolution No 1962 (X VIII) of 13 December 1963.  This second Resolution contained the Declaration of Legal Principles Governing the Activities of States on the Exploration and Use of Outer Space.

Significantly, there also existed individual treaties and norms governing particular aspects of activities in outer space.  There is, for example, the Treaty Banning Nuclear Weapons Tests in the Atmosphere in Outer Space and Under Water which was signed in Moscow on 5 August 1963.

In the face of the activities taking place in the space the big task for the law consisted mainly in elaborating, on the basis of the principles and norms of International Law, a specialised system of legal principles and norms taking account of the specific characteristics of the new activities, creating the most favourable conditions for the growth of broad scientific and technical cooperation of states in the development of outer space and not permitting its transformation into a zone of international conflict. 

The United Nation Organisation indeed established in 1959 its committee on the Use of Outer Space for Peaceful Purposes.  This committee is a special organ of the General Assembly and is at the centre of practical development of view norms of International Space Law.

We shall now briefly consider the sources and basic principles of  the Law.

SOURCES OF THE LAW     

The most important source of Space Law are the International treaties elaborated within the United Nations and subsequently, signed and ratified by a large number of states.  Among these are:

(1)        The 1966 Treaty on Principles Governing the Activities of     States in the Exploration and Use      of Outer Space including the moon and Other Celestial Bodies (Commonly known as         the “Outer Space Treaty”).

(2)        The 1967 Agreement on the Rescue of Astronauts the Return of Astronauts and the         Return of Objects Launched        into Outer Space.  (The Rescue Agreement).

(3)        The 1971 convention on International Liability for Damage    caused by Space Objects      the Liability Convention.

(4)        The 1974 Convention on Registration of Objects launched   into Outer Space (the             “Registration Convention”).

(5)        The 1979 Agreement Governing Activities of States on the Moon and Other Celestial         Bodies (the “Moon Agreement”).

We shall elaborate on the contents of these Treaties and Agreements later on in this presentation.  It is sufficient for now to note that on the basis of the work of the committee on the Peaceful Uses of Outer Space and its Legal Sub Committee the General Assembly has also adopted the following set of principles on the conduct of space activities.

(1)        The Principles Governing the Use by States of artificial Earth Satellites for International     direct television broadcasting (1982) which recognise that such use has international political economic, social and cultural implications.  They should respect the sovereign rights of states,    including the principle of non-intervention.  They should promote the dissemination and exchange of information and knowledge and should further development.

(2)        The principles relating to Remote Sensing of the Earth from Outer Space (1986) which state that such activities are to be conducted for the benefit of all countries, respecting the sovereignty of all states and people’s over their natural resources and for the rights and interests of other states.  Remove sensing is to be used to preserve the environment and to reduce the impact of natural disasters.

(3)        The Principles on the use of Nuclear Power Sources in Outer Space (1992) which recognise that such sources are essential for some missions, but that their use should be based on a thorough safety assessment.  The Principles also provide guidelines for the safe Use         of nuclear power sources and for notification of a MAL---------- of a space object           where there is a risk of re-entry of radioactive material to the Earth.

(4)        The Declaration on International cooperation in the   Exploration and Use of Outer Space for the benefit and in the Interest of all States, particularly developing countries (1996) which provide that states are free to determine all aspects of their participation on International cooperation in space activities on an equitable and mutually acceptable basis, and that such cooperation should be conducted in ways that are considered most effective and appropriate by      the countries concerned.

Besides, there are a number of International Scientific and technical agreements governing joint activities of states in outer space.  These agreements encompass a large number of states belonging to different socio-political system.  The international space programmes of the United States of America, Russia, the Western European and other countries are based on these agreements.      These Agreements include the founding Acts of inter-governmental organisationns like INTERSPUTNIK, INTELSTAT, INMMARSAT and the European Space Agency as well as multilateral and bilateral agreements on general and specific questions of joint activities of states in outer space.

It should be importantly noted that International Space Law extends not only to the activities of States in outer space itself, including celestial bodies, but also to their activities  on Earth, and in the atmosphere in connection with the study and conquest of outer space.  It should be further noted that most multilateral outer space treaties drawn up within the United Nations provide terms in accordance with which the provisions of these treaties apply not only to states but under certain conditions to international inter-governmental organisations engaged in activities in outer space.

BASIC FEATURES OF THE LAW

1.         RESPONSIBILITY FOR ACTIVITIES IN OUTER SPACE

States bear international responsibility for ensuring that their activities in outer space are carried out in strict compliance with the principles and provisions of general international law and international space law.  This responsibility extends to any national activities irrespective of whether they are being conducted by governmental agencies or by non governmental legal entities.  (Act VI of the Outer Space Treaty).  Activities in outer Space by non governmental entities are permitted only with the consent and under the supervision of the corresponding states.  When activities in outer space are conducted by an international inter governmental organisation responsibility is also borne by the organisations member states.

The responsibility of states is envisaged not only for perpetrated violation of the law but also for the influction of damage in the course of legitimate activities in outer space, like the result of crashing of a man made satellite or its component parts on foreign territory.  There can be no doubt caused as a result of activities in outer space.  States are the subjects of such responsibility irregative of whom the direct party is which has suffered damage of who the party is which is obliged to compensate for the damage - whether this is the state itself or its physical and legal persons.

For a state to be heed materially responsible one of its space objects must have inflicted some form of direct harm envisaged in the convention.  The launching state bears absolute responsibility for paying compensation that the extensive use of space technology is associated with the risk of causing material damage here on earth in the atmosphere and in outer space.  It is therefore logical that questions of material responsibility for damage caused by space objects are dealt with in particular by international space law.  Act VII of the Outer Space Treaty ----- the Special Convention on International Liability for Damage caused by space objects deal with these questions.  They lend an international legal character to material responsibility for damage caused by one of its space objects on the surface of the Earth or to an aircraft on flight.  The launching state can only be freed from such responsibility if it can prove that the damage was wholly if partly caused as a result of gross carelessness or action or inaction on the part of the state suffering damage or its physical or legal persons with the intention of inflating damage.  If the damage is caused as a result of inappropriate activity of the launching state, nor responding to International Law including the Use Charter and the 1967 Treaty, the launching state cannot be freed in any way from responsibility even if the state suffering damage is itself guilty.  The principle of absolute responsibility can be digressed from in the event of a space object of one state or the persons or property on board, such an object, being damaged by a space object of another state while they are not located on the surface of the Earth.  In this case, the state is responsible only in the presence of its own guilt or of the guilty of persons for whom it answer.

The convention gives a broad interpretation of the Earth launching state to include both the State that carries out or organises the launching of a space object and the state from whose territory or facilities the launching of a space object is affected.  Act V of the convention states the principles of joint responsibility for any damage caused when two or more states jointly effect a launching.  This means that a state suffering damage may at its discretion present separate demands for full compensation to any of the participant in the joint launching or it may present demands to some of them or to all of them together.  A state which has paid compensation for damage has the right to present a regressive demand to the other participants to the joint launching.

The procedure for consulting and considering claims for compensation in the Convention provide for the possibility of resolving claims through diplomatic negotiations and for the creation of special commission to consider claims if diplomacy negotiations are our successful.

2.         LEGAL STATES OF SPACE

The term Space object refers to various man made space apparatus and their component parts (artificial earth satellites, automatic and manned spacecraft and stations, rocket carriers).  International Space Law governs activities associated with space objects from the moment of their launching or construction in outer space (including an celestial bodies).  Until that moment, activities relating to their creation and launching are covered by municipal law unless these are other special treaties among states relating to this eg joint launching.  Since 1961, the UN has kept a register of objects launched into outer space.  The 1975 Registration Convention has now made such registration mandatory.  The space object must be recorded in a national register and registered with the UN.

The registration of a space object implies specific legal consequences.  Act VIII of the Outer Space Treaty provides that ‘A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object and over any personnel thereof.  While in outer space or of a celestial bodies’.

In effect, a space object and its crew (including international crew).  While they are in outer space are under the control of and are subordinated to the authority of the state that has registered the given space object.  A state retains sovereign rights in relation to its space objects and their crew during their time in outer space and on celestial bodies.

The 1967 Treaty also provides that the right of ownership of space objects is not affected others during their presence in outer space or following their return to Earth.  In effect, space objects and their component parts both during their presence in outer space and following their return to Earth belong to the states, legal or physical persons, to whom they belonged before launching.  Act XII of the 1967 Treaty and Act XV of the Agreement Governing the Activities of States on the Moon and other Celestial Bodies provide that all stations installation equipment and space copy on the moon and other celestial bodies are open to visits by representatives of PPPP States on a reciprocal basis and in compliance with specific conditions including preliminary justice).  The right to visit is rigorously limited in character and lives not extend to orbital spaces objects beyond the boundaries of the moon and other celestial bodies.  The Tall Treaty character astronauts as “envoys of mankind in outer space” (ActV).  This only emphases the worldwide significance of a mission being carried out by a astronauts.  It does not give them any supra natural status.

In making a space flight they remain citizens of their states and are subject to the jurisdiction and country of the state in which their space  ship is registered.

Questions relating to the rescue and return of astronauts in case of accident, calamity, a forced launding outside the territory of the state which launded the vessel are also regulated provision would be from an Act V the outer space Treaty.  The 1968 Agreement or Rescue and the 1979 Agreement on the Activities of states on the Moon.  The duties of States on rescuing and returning crews that are provided for in the 1968 Agreement differ from their duties relating to the salv age and return of the space objects themselves states moon take all possible measures to rescue and provide necessary assistance to the crew of space craft, that have lauded on foreign territory as a result of accident calamity or forced or unintentional lauding.  Such crews must be returned without delay to representatives of the party that launched the vessel.  The space objects themselves and their components are salvaged and returned to the authorities that launded the vessel only at the request and expense of the latter.

Mutual assistance among astronauts while they are in outer space and on celestial bodies the right to rescue persons involved in accidents on space stations, installation, devices and other structures located on the moon and other celestial bodies.  The mutual exchange by states, either directly or through the UN Secretary General of information concerning phenomena in outer space including the moon and other celestial bodies that would represent a threat to the lives or health of astronaut are also provided for.

3.         THE PRINCIPLE OF COOPERATION

One of the basic principles of public international law applicable to space activities is that of cooperation of States.  This play an exceptionally important role in the research and use of outer space.  This is why the cooperation of states in the peaceful study and use of outer space is one of the basic principles of International Space Law.  The Outer Space Treaty in its preamble refers to the wish of states to promote broad international cooperation in the field of the study and use of outer space for peaceful purposes.  Act I provides that states shall assist and encourage international cooperation in scientific research At III refers to the development of international cooperation and mutual understanding Act IX states that signatories to the Treaty shall be guided by the principle of cooperation and mutual assistance .  An active role in the development of international cooperation in space research is played by the UN, a number of its specialised institutions sun as    the ITU.

UNNO, UNESCO and International Inter-Governmental agencies such as the life cemmut an Space Research (COPSPAR) and the International Astronautical Federation (IAF).

IV  INTERNATIONAL SATELLITE ORGANISATION (I.S.O.)

In the field of International Satellite Communications there are three major international inter-governmental organisations

INTERSPUTNIK, INTELSAT and INMARSAT.  The Agreement on the Establishment of the International System and Organisation of Space communications (INTERSPUTNIK) was signed in Moscow on 15 November, 1971 and came into force on 12 July, 1972.  The INTERSPUTNIK serves the needs of its member states in telephone and telegraph communication channels, television and other forms of information transmission via artificial earth satellites.  The work of INTERSPUTNIK is based on the principles of respect for the sovereignty and independence of states, equality, non interference in internal affairs, mutual assistance and mutual benefit.

The International Telecommunications Satellite Consortium (INTELSAT) was established in 1964.  It currently operates on the basis of agreements that came into force on 12 February, 1973.  The INTELSAT Agreements encroach on the sovereign rights of the organisations member states and consolidate the dominating role withing it of the United States.

The convention on the International Maritime Satellite Organisation (INMARSAT) was signed in 1976.  Its members are states possessing large Maritime fleets.  In addition there is a number of national and regional communications system, which use man-made satellite.  The organisation was established to meet the needs of maritime shipping.

We shall now examine more closely some of these organisation.

A.         THE INTERNATIONAL TELECOMMUNICATIONS SATELLITE              ORGANISATION             (INTELSAT)

The INTERLSAT is the most important international provider of satellite communication services.  It was originally established by an interim agreement in 1964 as a “not-for-proper cost-sharing cooperative” to provide high quality, reliable telecommunication by means of satellite to all nations of the world on a global and non-discriminatory basis.  It is not subscribed to by well over 100 member countries.  Parties can either directly enter the agreement or designate one of their telecommunications entities to do so.  In the United Kingdom for example, British Telecom is the signatory for the country.

The INTELSAT today carries over half of the world’s telephone calls, the bulk of international data circuits and virtually all transoceanic and intercontinental television broadcasts.

The objective of INTELSAT is to provide facilities for international communications services.  The provision of INTELSAT’s facilities for domestic public communication services is subject to the condition that it does not impair its ability to provide international public telecommunication services.  The idea behind INTELSAT was to be able to provide and to maintain a low-cost international system of communications by means of a pooling of international resources and through an equitable sharing of the costs and risks involved in the development of international satellite communications.  All members , therefore, assume the risks and invest in INTELSAT in proportion to their actual use of the system for all services.  Investment shares are adjusted annually based on the previous six months’ usage.  Article V of the INTELSAT Agreement confirms the non-discriminatory basis upon which INTELSATS services are to be provided.  Indeed, all users, members and non-members alike, are to charged the same for the same service and rates are averaged on total use of the entire global system.

Article XIV defines the rights and obligations of INTELSAT members particularly as regards the question of them establishing or using separate systems to meet domestic or international requirements.  Prior to the establishment, acquisition or utilisation of separate satellite facilities, INTELSAT members are required to consult with INTELSAT and furnish all relevant information so as to ensure technical compatibility, to avoid significant economic harm and so as not to prejudice the establishment of direct communications links. 

In the past, this article gave INTELSAT a significant regulatory power in the field of international satellite services.  Its supe and significance have now been considerably reduced.  It now applies only to public switched telecommunication services.  It is remarkable that in 1985, the US Congress passed a law to the effect that if INTELSAT renders an unfavourable finding under Article XIV, the president may determine that it is nevertheless in the US national interest to proceed with the separate system.

The INTELSAT has distinct legal identity which is separate from the parties or signatories of which it is made up.  Organisationally, the body consists of

1.         The Assembly of Parties.

2.         The meeting of signatories.

3.         The Board of Governors, and

4.         The Director General who is the Chief Executive.

B.         THE EUROPEAN SATELLITE COMMUNICATIONS ORGANISATION (EUTELSAT)

The body was established in 1977 as a provisional body under the interim EUTELSAT Agreement to set up and operate a space segment for satellite communications and to make the necessary arrangements for this.  Particularly with the European Space Agency.  In 1985, a convention creating the definitive organisation was held in September 1985, resulting in a signed agreement among 20 European governments.  Membership has since risen.

The EUTELSAT is governed by a convention which sets out its constitution and aims.  An operating Agreement contains the details of the functioning of the organisation including utilisation charges.

The body is composed of an Assembly of Parties, a board of signatories and an executive headed by a Director - General.

The main objective of the organisation is the construction, establishment, operation and maintenance of the European Space segment and the provision of the space segment required for international public telecommunications services in Europe.  A guiding principle of EUTELSAT is “non discrimination as between signatories” (Art III).  Article XVI gives EUTELSAT the power to effectively to decide whether potential competitors are likely to provide an unacceptable level of competition to the services provided by EUTELSAT.  That is, to cause “any significant harm”.  If the Assembly of Parties decides that it would coordination with that competitor can be refused.

C.        THE INTERNATIONAL MARITIME SATELLITE ORGANISATION                       (INMARSAT)

The organisation was established in July 1979.  Its original purpose was to make provision for the space segment necessary for improving maritime communications, to assist in improving distress and safety of life at sea, communications, efficiency and management of ships, maritime public correspondence services and radio - determination capabilities.  In 1985, this purpose was extended to include aeronautical satellite communications and, in 1989 to include the provision of land mobile communications.  The organization has a founding convention and an operating Agreement.  Each party must sign the operating Agreement.  The organisation is founded with the contribution of the signatories to the operating Agreement.

The INMARSAT has an Assembly with responsibility for overall policy formation a council consisting of representatives of signatories.  (It has an executive role); and a Director General who is the Chief Executive and Legal representative.  Article 8 of the Operating Agreement is similar to Article XIV of the INTELSAT Agreement and Article XVI of the EUTELSAT Agreement regarding the obligation to notify INMARSAT when a party intends to establish separate space segment for white to meet any or all of the maritime purposes of the INMARSAT.  This has been generating concern as to the tendency to use the organisations power in this regard to restrict access to satellite services and thus reduce competition.

SUB MARINE CABLES

Our focus in this segment of the paper shall be the 1982 United Nations Convention on Law of the Sea which came into force in November 1994, and has been ratified by Nigeria.  The relevant provisions of the Convention shall be considered on the Legal regime applicable to specific sea areas starting with the High Seas.

Article 87 of the Convention provides that the “High Seas are open to all states, whether coastal or land locked.  Freedom of the high seas is exercised under the conditions laid down by the convention and by other rules of Intgernational Law”.  The Article gives on to list among the freedoms for both the coastal and land locked states.

“(c)      freedom to lay sub marine cables and pipelines subject to Part VI

Part VI of the Convention deals with the Continental shelf.  It is provided in Article 87 Section 2 that the freedoms guaranteed under the Article including the freedom to lay sub-Maine cables shall be exercised by all states with regard for the interests of other states in their exercise of the freedom of the high seas, and also with due regard for the rights under the Convention with respect to activities in the Area of the sea beyond the limits of national jurisdiction.  Thee High seas shall indeed be reserved for peaceful purposes (Art 88) and no state may validly purport to subject any part of the high seas to its sovereignty (Art 89).

Within the Continental Shelf (Part IV), “All states are entitled to lay sub-marine cable and pipelines ... in accordance with the provisions of this Article” (Art 79).  It is further provided that subject to its right to take reasonable measures for the exploration of the continental shelf.  The exploration of its natural resources and the prevention reduction and control of pollution from pipelines, the coastal state may not impede the laying or maintenance of such cables or pipelines.  The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal state.  Nothing in Part VI of the convention affects the right of the coastal state to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploitation of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.  When laying sub-marine cables or pipelines, states shall have due regard to cables or pipelines already in position.  In particular possibilities of repairing existing cables or pipelines shall not be prejudiced.

Within the Exclusive Economic Zone (EEZ), all states whether coastal or landlocked, enjoy subject to the relevant provisions of the convention, the freedom referred to Article 87 of navigation and overflight and of the lagging of submarine cables and pipelines and other internationally lawful uses of the sea related to these freedom, such as those associated with the operation of ships aircraft and submarine cables and pipelines and compatible with the other provisions of the convention (Art 58).  It is further provides that in exercising their rights and performing their duties under the Convention in the EEZ, states shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state.  In accordance with the provisions of the Convention and other rules of international law in so far as they are not incompatible with Part VI of the Convention.

CONCLUSION

In this paper, attention has been focussed on Satellite Regulation under International Space Law.  The emphasis has been on the Basic principles of International Law and the Institutional framework.

By way of conclusion, it is worth restating that African countries have not participated actively in the evolution of the new satellite system.  Besides, the utilisation of the modern satellite facilities in the region has been limited.

It is against this background that the Nigerian National Paper (1999) did propose to the UNISPACE III Conference (and we agree with this position).

1.         Assurance of equitable access to the radio frequency spectrum and the geo-stationary satellite orbit to protect the interest of developing countries and emergency nations who have not yet developed financial and technical capabilities for their own satellite.

2.         The interest of developing countries should be taken into consideration on the allocation   of frequencies for LED, MEO Satellites constellations.

3.         Propagation studies must be carried out for the utilisation of the Ka and V band Satellite    frequencies in tropical and sub-tropical regions so that such regions could benefit in the numerous services that satellite communications will provide now and in the future.

4.         Satellite debris requires attention and recommendation. This raises the issue if the disposition of failed satellites, “dead” satellites after useful life etc.  When hazards wined such debris constitute now and in the future.

5.         The establishment of UN affiliated Centres on space technology and education in Asia, Africa, and Latin America is a welcome development.  The Centres must be networked in   order to share human and other resources.

6.         The developed world is requested to make efforts in the diffusion of the satellite technology and space technology in general to developing countries.

7.         Internet trade and custom duties.

8.         Regulation of DTH Satellite broadcasts and DAB into other countries.  What are the          cultural implications?

9.         Participation of scientists, engineers and technologists in study Groups of  ITU, COPOUS and other similar organisations.  Where major studies are carried out.  Leading to major decisions and recommendations on space technology and satellite communications.

10.       Integration of Africa into the Global Information Society and the Global Village.

11.       Due to the poor terrestrial telephone network in Africa, most of its inter-African traffic is carried by satellite, hence satellite constitute a major transmission system for telephone traffic in the continent.  Nigeria is a major consumer of these products in Africa, the government of Nigeria (therefore) intends to provide increased investment in training and research in satellite telecommunications technology, especially in the K, band satellite systems, now designed for regional and global services (with opportunities for telephone thunking and rural telephony).

12.       Paper Satellites.  Based on the I.T.U. Special committees position on the paper satellites, to with “The administration claming orbital slots and associated frequency spectrum must submit evidence of a spacecraft or launch vehicle contract, otherwise they would be deleted from the co-ordination queue”, the need arises to adopt a special disposition towards the allocation of orbit slits to developing countries, which may not have the resources at this stage to show evidence of possession of a spacecraft or launch vehicle contract.

13.       Satellite solution in the provision of rural telephony, radio, and TV broadcasting would be pursued in Nigeria, in addition to mobile satellite services through investment, as this would have tremendous boosting of economic growth in the rural areas.

14.       As satellite is playing more role in the networks separated within a geographical region and in the accessing of the global network of networks - the Internet, the pace of connectivity to the Internet is a major disadvantage to the advancement of knowledge in the country.  Internet connectivity is, therefore being given priority attention at this stage.

It is a matter for joy that a decision has now been taken to start a satellite communications project in Nigeria.  A National Centre for Satellite Technology Development has been set up alongside the National Space Research and Development Agency.

This is a sign of the good things to come in the area of Satellite Communication in this country.

INTERNATIONAL INSTITUTIONAL FRAMEWORK AND TRADE REGIMES FOR TELECOMMUNICATION - THE I.T.U. AND W.T.O. IN FOCUS

Ademola O. Popoola Phd.

Department of International law, Faculty of Law

Obafemi Awolowo Univeristy, ILE IFE, Nigeria.

PAPER COMMISSIONED FOR PRESENTATION AT THE INTERNATIONAL CONFERENCE ON ELECTRONIC COMMERCE AND TELECOMMUNICATION IN NIGERIA HOLDING AT GOLDEN GATE RESTAURANT, IKOYI, LAGOS 23 - 26 SEPTEMBER, 2002.

INTERNATIONAL INSTITUTIONAL FRAMEWORK AND TRADE REGIMES FOR TELECOMMUNICATIONS - THE I.T.U. AND W.T.O. IN FOCUS

I. INTRODUCTION

Telecommunications have emerged as the key to the global delivery of services in the present ages.  It is beyond doubt that banking, tourism, transportation and the information industry all depend on quick and reliable global telecommunications.    The telecommunications sector is also being revolutionised by powerful trends, such as globalisation, deregulation, restructuring, valued-added network services, intelligent networks and regional arrangements.  These developments have transformed telecommunications from its earlier status of public utility to one of having greater links with commerce and trade.  According to the UN (see Basic Facts) About the United Nations), the global telecommunications market is expected to grow over the coming decade to some $1,000 billion.

In this paper, attention shall be focussed on :

(I)         the International Telecommunication Union (I.T.U.), the world’s oldest inter-                        governmental organisation dating back to 1865, and

 (ii)       the World Trade Organisation (W.T.O.), an organisation which provides a framework       of rules for the conduct of world trade in goods and services (including telecommunications) and the trade - related aspects of intellectual property rights and            investment measures.  The framework rules provided by the W.T.O. are supported to have profound impact on international trade and on the world economy well into the twenty - first century.  The W.T.O. also provides a forum for trade negotiations and an        institutional mechanism for the implementation of some 20 Agreements and legal texts negotiated in the Uruguay Round.

THE INTERNATIONAL TELECOMMUNICATION UNION (I.T.U.)

ORIGIN AND MANDATE

The I.T.U. was founded in Paris in 1865 as the International Telegraph Union.  It took its present name in 1934 and became a specialised agency of the United Nations in 1947.

The Union is set up:

(1)        to promote (in the technical area) the development and efficient operation of                      telecommunication facilities in order          to improve the efficiency of the telecommunication   services and their general availability to the public

(2)        to provide and offer technical assistance (in development area) to developing countries in the field of telecommunications, to promote the mobilisation of the human and financial resources needed to develop telecommunications and to promote the extension of the benefits of new telecommunications technologies to people everywhere

(3)        to promote (in policy area) at the international level, the adoption of a broader approach     to the issues of  telecommunications in the global information economy and society.

Within the I.T.U. the public and private sectors cooperate for the development of telecommunication and the harmonisation of nations telecommunications policies specifically, I.T.U.

(1)        develops standards which foster the interconnection of national communications              infrastructures into global networks, allowing the sea unless exchange of information   - be it data, faxes or phone calls - across the globe

(2)        works to integrate new technologies into the global   telecommunications network,             allowing for the development of new applications such as the Internet, electronic mail         and multimedia

(3)        adopts international regulations and treaties governing the   sharing of the radio frequency spectrum and satellite orbital positions - finite natural resources which are used by a wide range of equipment including television and radio broadcasting, mobile telephones, satellite based communication systems, aircraft and maritime navigation and safety systems        and wireless computer systems;

(4)        strives to expand and improve telecommunications in the developing world by providing policy advice, technical assistance, project management and training programmes and by fostering partnerships between telecommunications administrations, funding agencies and             private organisations (see Basic Facts) 1998

Within its mandate, the I.T.U. has been facilitating telecommunications.  It is also in the forefront of telecommunications: For instance it has helped to developed a new system called “International Freephone Numbers”, through which businesses will be able to use a single number which customers anywhere in the world can dial at no cost to place an order, get product information or obtain after - sale assistance. 

It has been stated that having a “freephone number” is the equivalent of opening an office in every country one wants to do business in at a fraction of the cost.

The I.T.U. has also played a major role in the introduction of the Third generation mobile phone System, called IMT - 2000. I.T.U. allocated the radio frequency spectrum needed to start operation and provided the forum to reach a global agreement on the transborder use of the global satellite component of IMT -2000.  The organisation is also preparing the necessary standards for IMT - 2000  including the details of the integration of the satellite component.  It is said that IMT-2000 will make it possible to connect, on a global scale, mobile fax, messaging, data and even two way voice and broad-band multimedia, via small, hand-held phone sets, Computer - mounted terminals or laptops.  The aim is to integrate and seamlessly interconnect the various satellite, terrestrial, fixed and mobile systems currently being deployed for global communications.

The work of the I.T.U. in developing global standards which facilitate the interconnection of different systems has also become increasingly important as more and more information is processed and distributed electronically.

Early in 1998, I.T.U. adopted a landmark decision on tehcnical specifications of a new type of modern, e xpected to be widely used for applications.  Such as the Internet and on-line service access.  Increased modern transmission speed is expected to cut down the time needed by computers transfer information, resulting in lower telephone bills and foster continued dramatic growth of the Internet.

The I.T.U. has also taken an active part in the area of the Internet in the restructuring of the domain - of -names registration system.  This is with a view to introducing a self - governing structure that will lead to competition in the lucrative market for registration of genetic Internet top-level domain names, with adequate and diverse public review and input.  The new system also aims at improving the stability, flexibility and transparency of the future growth of the network

(see Basic Facts 1998).

III. THE REGULATORY REGIME OF INTERNATIONAL TELECOMMUNICATION

In discussing the regulatory regime of International telecommunications it is important to bear in mind Radio Frequency Spectrum (RFS) is a limited natural resource which is vitally needed by all countries.  World-wide communications have expanded dramatically in recent times.  RFS has therefore, become an increasingly important and increasingly scarce natural resource.  The available supply cannot obviously meet anticipated world-wide demand.  It must, therefore, be apportioned among contending users.

The apportionment of this resource, however presents some difficulties.  Moreso, when one country’s use of it affects its use by other countries.  Rules are accordingly needed to govern the use of apportioned spectrum.  International Law plays an important role in this regard.  And it finds expression in the International Telecommunication Convention; the Radio Regulations Annexed to it and internationally adopted technical recommendations.  The Rules which govern the use of RFS are administered incorporated and enforced by the International Frequency Registration Board (IFRB).  This is an independent body which exists under the framework of the International Telecommunication Union as a specialised agency of the UN.

The work of the I.T.U. and the IFRB will be better appreciated when it is realised that as the RFS become more congested and the number of users multiplies mutual interference potentially increases, and with it, the need for principles enunciating the rights and obligations of such users.  If there are principles, it is only logical that there are also regulatory bodies.  There certainly would be less need for such principles and regulatory bodies.  If the spectrum could accommodate the requirements of all users and if each could operate without stifling the operations of other users.  The need for the principles and bodies is accentuated by the advent of such new communication services as global communication satellite systems.  An observer has indeed noted that through the years the unrelenting saturation of available spectrum space has been mirrored in the progressive complexity of International Radio Regulations and the legal inventions devised by the I.T.U. to strike an accommodation among competitors for spectrum space.

The law established by the I.T.U. conventions and Radio Regulations, its administration interpretation and enforcement by the IFRB constitute the regulatory regime in this area.  Unfortunately there is a pervasive lack of understanding of the regulatory regime.  This is particularly acute with regard to the rights and obligations of stations providing international communication services especially among the developing countries.  It has been suggested that such lack of understanding has been identified as underlining the shortage if frequency assignments.  It has to be appreciated however that the Radio Regulations are by nature difficult to understand.  They constitute an extra - ordinarily intricate and interlocking corpus of law whose meaning is not susceptible to easy understanding.  What is more, the Radio Regulations have been the preserve of engineers and administrators.  Yet many of the central concepts are essentially legal concepts.  The result of the widespread lack of understanding of the regulatory regime is that the I.T.U. Conventions and the Radio Regulations, despite their formal status as International Law have attracted little attention from the legal profession beyond the interest generated in the 1960s in response to the problems posed by space communications.  Happily, the situations is fast changing.  Hence, this conference.

Before, we proceed to examine the basic features of the Regulatory Regime it is important to note that in this field legal considerations are inseparable from technical, operational and administrative factors.

IV. BROAD FEATURES OF THE REGULATORY REGIME

Some basic features of the regulatory regime deserve some attention.  The first of this is the legislative and regulatory processes.  Here it would be important to appreciate at the outset that the regulatory regime of I.T.UY.   Does not function in a vacuum.  It is a creature for I.T.U. Conferences especially the Administrative Radio Conferences.  It is also controlled by the I.T.U. Conferences.  The authority of the I.T.U. in this regard can be classified as legislative and regulatory.

It is at the legislative process level that the International Radio Conferences representing all I.T.U. members allocate the usable portions of the Spectrum to different Communication services like broadcast, aeronautics and mobile.  This process is of a vital importance because a station in a frequency band allocated to a different communication service must operate on a non-interference basis.  The allocations may incorporate a wide variety of legal distinctions.  Frequencies may be allocated exclusively for one service or to two services with equal rights or to two services on a primary or secondary basis respectively.  The allocations are normally formally adopted by the conference and thereafter they appear in Article 5 of the Radio Regulations in the form of a table of frequency allocations.

The second stage is the regulatory stage or process.  This begins when a country seeking to establish a station for international or domestic communications designates or assigns a particular frequency to that station.  Such assignments may then be communicated to the IFRB which Board may then consider an examination of the notice depending on whether the assignment correspond with the country concerned.  Issue findings with respect to the assignment in conformity with the conventions and Regulations and the probability of harmful interference to certain previously recorded assignment and ultimately record the assignment on the Master International Frequency Register.

Allocation of frequencies to communication services takes place on the International level but the assignment of frequencies to specific stations take place on the national level, but it must be consistent with the international allocations and other applicable rules.  Besides, the IFRB does not distribute frequency to or withhold frequencies from I.T.U. members.  Each country has the right to select its own frequencies and to insist that its frequency assignments are recorded in the master register.

The second basic feature of the regulatory regime is the status of International Telecommunication Convention and Radio Regulations in International Law.  The status of these instruments as law will be better appreciated when it is realised that two stations of two I.T.U. members wishing to operate on the same frequency cannot do so without courting unacceptable mutual interference.  The purpose of the law in this context is to determine which of the two stations has the priority to operate.  One solution to the problems to determine which station is operating in accordance with applicable international rule and form that station priority.  But what happens, as it is often the case, when the two stations act in conformity with these rules and yet there is mutual interference?  Other factors must then be taken into account, such as who is the first user, which station is more “important’, whose station’s country, has fewer international communication facilities?  The I.T.U. conferences have been facing this problem since 1927.

Certain new principles establishing the rights and obligations of recorded assignments were recorded in 1947 including formal recognition of a right to international protection from harmful interference.  The trend since 1947 has been toward what has been described as “more elaborate procedure but less clear legal principles”.

It is a measure of this development that countries recognising that the spectrum has become congested have agreed to new international procedures but they have become increasingly unable to agree on the principles governing the rights and obligations of their international stations.  The result is that while the spectrum congestion increases the need for rules, it has also made it difficult to achieve international agreement on such rules.

It should also be noted that the legal sign plank of elaborate notifications and registration procedure is no where clearly defined.  What is clear is that frequencies assignments are recorded in the master register to obtain formal international recognition or the right to protection.  Besides, with fear exceptions, the nature of the rights acquired is not defined in the conventions or Regulations.  This is not to deny the fact that such rights are valuable.

The following two principles have been identified as basics of the rights and obligations of recorded assignments.

(1)        Conformity with the applicable international law, namely, the International   Telecommunication Conventions and Radio Regulations, and

(2)        Earlier use and notification to the Brand.

It would appear that the significance of first principle has not been adequately recognised while the importance of the second principle has been generally over emphasised.  This is partly responsible for the erroneous impression that harmful interference disputes between two countries are resolved strictly on the basis of “first come, first served” principle.  Whereas, as in many disputes, this principle based on first use of a frequency is not a controlling factor and is sometime not even relevant to a determination of the respective rights of the parties concerned.

In matters of priority a station which operates in accordance with the convention and Radio Regulations will have priority over a station not so operating regardless of which station first commenced operations and first notified the Board.  It is also important to note that it is only harmful interference that is proscribed by the Radio Regulations.  Any interference which a later recorded station may cause ana earlier recorded one is not proscribed.  It is a harmful interference that constitute a wrong for this purpose, “harmful interference” is defined as an emission which endangers the functioning of other radio services operating in accordance with these Regulations.  See Reg.

No. 93 of the Radio Regulations.

It is clear from this definition of harmful interference that the decisions criterion is not prior use but conformity with the relevant international law.  The result is that interference is not harmful under the Radio Regulations if the station which suffer such interference is not itself in conformity with the Regulations.  In fact the principle of prior use and notification becomes relevant when the first principle of conformity with international law is not sufficient to determine which of the two stations is a harmful interference disputes possesses the right to operate.

V. THE TRADE REGIME

W.T.O. AND MULTILATERAL TRADING SYSTEM

THE ANTECEDENTS

THE G.A.T.T. SYSTEM

The General Agreement on Tariffs and Trade, established in 1948, has provided the institutional basis for trade negotiations in the post war era.  The fundamental purpose of the G.A.T.T. was to achieve “freer and fairer trade” through reduction of tariffs and elimination of other trade barriers.  G.A.T.T. has operated on the basis of

1.         Non-discrimination, multilateralism, and the application of    the Most-Favoured National    principle (MFN) to all signatories.

2.         expansion of trade through the reduction of trade barriers, and

3.         unconditional reprocity among all signatories.  GATT’s goal was to establish a world trade regime or universal          rules for the conduct of commercial policy (Robert Gilpin, 1987).

The G.A.T.T. assumed the role of the principal institution concerned with the conduct of world trade.  It was also an international agreement by which the signatories to it had entered into binding legal commitments with one another on important aspects of their trade policy.  It also became an international forum for multi-lateral consultation and negotiations on trade problems.

The over-riding obligation under the GATT assumed by all contracting parties is to accord most favoured-nation treatment to products from other contracting parties.  It is a fundamental principle of the GATT that protection is to be granted to domestic industries exclusively through the tariff.  The use of quantitative restriction as a means of protection was expressly prohibited except in certain carefully defined circumstances.  Eight Rounds of negotiations have been held in respect of the G.A.T.T.  The Geneva Round, 1947, brought tariff concessions (between founder members) involving some US$10 billion in trade.  The ANNECY ROUND 1949, introduced further tariff concessions as did the TORGUAY ROUND 1950 - 51 and a Second GENEVA ROUND 1956.  In 1960-61, a DILLION Round recognised the European Economic commencement as a single trading body, while the follow up KENNEDY ROUND 1964-67 out for the first time tariff by whole sectors instead of product-by-product.  In 1973-79, a TOKYO ROUND included newly independent developing countries and agreed to reduce tariffs on tropical products, participants also signed agreements on subsidies, technical barriers to trade, government procurement, meat and dairy products and civil aircraft.

The URUGUAY ROUND took off in 1986 from where the TOKYO ROUND ended.  This round of negotiation ended on last minute compromise between the world’s two largest trading blocs-the United States of America and the European Union (EU).

G.A.T.T. officials announced approval of a comprehensive accord expected to wholly or partially eliminate tariffs, subsidies, quotas and other forms of barriers on noted trade.

A new institutional organisation (W.T.O.) Also came into being under the new agreement, W.T.O. replaced G.A.T.T. as an institution.  With more powers to settle international trade disputes, it would also ensure growth and liberalisation of world trade, observance of URUGUAY ROUND rules and settlement of trade disputes.  Unlike GATT the new body will have the authority to enforce rulings, penalizing unfair trade practices and would serve as an instrument to extend trade rules into such controversial areas as the environment and labour standards.  The new Uruguay Round treaty, otherwise known as THE FINAL ACT EMBODYING THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS Extends G.A.T.T. to services and intellectual property.

AFRICAN AND THE NEW G.A.T.T. AN APPRAISAL

It has been suggested that the benefits of the new deal would amount to US$274 billion per year in extra economic output between 1993 and the year 2002.  The URUGUAY ROUND has also been credited with producing the most fundamental reform of the world trading system since the establishment of the G.A.T.T. in 1947 (World Bank Policy Research BULLETIN, November, December, 1995).

The new GATT extends coverage to more products and countries, and reflects a wider and deeper commitment to trade liberalisation.  It is also envisaged that the establishment of the W.T.O. will contribute to a necessary strengthening of the global trading system, with stronger procedures for settling disputes, a mechanism for reviewing country trade policies and greater involvement of ministers in decision-making.

However, economies have tended to differ an out who gains and/or loses (and by how much) from the new accord.  The World Bank Policy Research BULLETIN of November-December, 1995, claims that the URUGUAY ROUND is likely to generate global income gains of up to $200 billion a year, with somewhere between a third and a half of the gains going to developing countries, primarily to the ones that have reduced their own protection and looked in the benefits of earlier reforms (P.I.).  Besides, a study by the GATT Secretariat claims that the new agreement should add approximately %500,000 million annually to the world economy, with %116,000 million of that going to the economies of developing countries and transitional economies (CROSS ROADS), U.S.I.S. publication, January 1995 p.13).  But while trade experts in the developed Northern hemisphere applaud the Uruguay Round results, variously calling it the biggest trade deal and the largest market access packages on history, official opinion in much of the developing world, Africa in particular, has been different.

It has been contended that the new pact effectively shaped by the US and E.U. has brought unequal gains to various regions, sub-regions and nations, and indeed, net losses to some others, particularly African countries.  It is projected that the African continent, as a whole (but excluding Egypt and the Libyan Arab  Jamahuriya) will lose US$26 billion, with Nigeria alone accounting for US$1.8 billion, Morocco, Algeria and Tunisia together losing US $0.6 billion and South Africa US$0.4 billion.

Developing world experts have cautioned that the agreement actually involved much reduced commitment by the EU and the US to open their markets to trade in services, the fastest growing sector of the global economy.  The sector currently accounts for a fifth of World trade.  Both the US and the EU in last minute negotiations “agreed to disagree” and removed the audio-visual industry (television and films), maritime activity, financial services and civil aircraft from the new pact.  Maritime transport will remain in the same highly protected state it was before 1986, and financial services will not be subject to the sacred most favoured nation principle, where benefits extended to one country must be given to all.

GENERAL AGREEMENT ON TRADE IN SERVICES (GATS) AND THE TELECOMMUNICATION ANNEX

Since the Uruguay Round, the GATT/W.T.O. has successfully linked all sectors including telecommunications to trade and has provided the basis, through its agreements and protocols for a common and integrated market for all economies, developed and developing.  With particular reference to telecommunications.  The effect of the GATS and other related agreements on telecommunications is significant for the development of the emerging liberalised and open market for trade in telecommunications network services and facilities.  On the conclusion of the Uruguay Round of negotiations there also emerged the General Agreement on Trade in Services (GATS) and related instrument which included an Annex on Telecommunications.  In furtherance of the GATS objectives of establishing a multilateral framework for trade in services for the purposes of expansion of such trade as a means of promoting the economic growth of all trading partners and the development of developing countries, the Annex on Telecommunications specifically endorses the principle of transparencies access to and use of public telecommunications trading networks and services (market access), and technical cooperation in and among member states.  Nigeria is a signatory to the GATS and its Annexes.  Within the broad principles highlighted above, a Negotiating Group on Basic Telecommunication (NGBT) was established to further extend or conduct negotiations on voluntary basis on trade in basic telecommunications with a view to negotiating the comprehensive liberalisation of trade in telecommunications networks and services within the GATT framework.

In 1997, the W.T.O. successfully concluded nearly three years of extended negotiations on market access for basic telecommunications service use of public basic telecommunications (both network and service) on reasonable and non-discriminating basis.  The interconnection requirement is to be co-ordinated under a regulatory discipline.  There is a global institutional commitment to liberalisation and deregulation within established “regulatory framework”.

A significant part of the negotiation is the endorsement of a regulatory environment conducive to market entry as a way of safeguarding the value of market access already committed to by member states.  It imposes an obligation on member states to apply the GATT principles to every aspect of their regulatory regimes affecting access to and use of public basic telecommunications.  It requires each member to ensure that all service providers are accorded access.

VII.  W.T.O. GRIEVANCE REDRESS MACHINERY: AN OVERVIEW THE ANTECEDENTS DISPUTE SETTLEMENT UNDER THE GATT

One of the interesting and more controversial aspects of the GATT as an institution was its dispute settlement mechanism.  The mechanism was unique.  It was also flawed due in part to the troubled beginnings of GATT.  Yet, some have argued that the dispute settlement procedure worked better than those of the International Court of Justice (I.C.J.).

One interesting policy question raised by the experience of the procedure is the question of what should be the fundamental objective of the system - to solve the instant dispute by conciliation, power threats, obfuscation or other means or to promote certain longer-term goals.  The difference of opinion about the basic purpose of goals of the dispute settlement process in the GATT was not often explicit, and the same individuals sometimes express a preference for opposite poles of this difference without realising it (Jackson, 1991).

THE PROCEDURE FOR DISPUTE SETTLEMENT

The I.T.O. Charter would have established a rather elaborate dispute settlement procedure, but the GATT, not intended to an “organisation” had only a few paragraphs devoted to this subject.  It is plausible to argue that there are a number of “dispute settlement” procedures distributed throughout the GATT.  But the central and formal procedures could be found in Article XXII and XXIII.

The first of these simply established the right to consult with any other contracting party on matters related to the GATT a right which does not impose a major obligation, but which is nevertheless useful.  Article XXIII was the centerpiece for dispute settlement.  It also provided for consultation as a pre-requisite to invoke the multi-lateral GATT procedure.

Three features of these processes should be stressed.  First, they are usually invocable on grounds of “nullification of impairment” of benefits expected under the Agreement, and do not depend on actual breach of legal obligation.  Secondly, established the power for the contracting parties to not only investigate and recommend action but to “give a ruling on the matter”.  Third, they give the contracting parties the power in appropriately serious cases to authorise “a contracting party or parties” to suspend GATT obligations to other contracting parties.

Each of these features had important implications although Article XXIII does not say much about them.  However, the procedures followed to implement the principles evolved through the four decades of practice into a rather elaborate process.

The key to invoking the GATT dispute-settlement mechanism was almost always “nullification or impairment”, an unfortunately ambiguous phrase.  It was neither sufficient nor necessary to find a “breach of obligation” under this language, although later practice did make doing so important.  Once case defined the nullification or impairment (N or 1) phrase as including actions by a contracting party which harmed the trade of another, and which “could not reasonably have been anticipated” by the other at the time it negotiated for a concession (Jackson).  The concept of “reasonable expectations” was thus introduced.

Even then this elaboration became very ambiguous.  Consequently, a later practice in GATT developed to enumerate three situations in which the contracting parties and their panels might find “PRIMA FACIE nullification or impairment”.  One of these situations was the breach of an obligation.  The other two were the use of domestic subsidies to inhibit imports on certain cases, and the use of quantitative restrictions (even where they would have been otherwise legal in GATT).  In such cases the burden of proof that no N or 1 occurred as a result of the breach, subsidy, or quantitative restriction shifted to the country which breached or used those actions.  In the absence of a clear showing that no N or 1 occurred, the GATT practice assumed that the panel was obligated to make a PRIMA FACIE nor 1 ruling, usually calling for the offending nation to make its actions conform to the GATT obligation.

At the beginning of GATT’s history, disputes were generally taken up by the plenary semi-annual meeting of the contracting parties.  Later they were brought to an “inter-sectoral committee” of the contracting parties.  Later, they delegated to a working party set up to examine either all disputes or only particular dispute brought to GATT.  Around 1955, a major shift in the procedure occurred, largely because of the influence of the then Director - General (Jackson).  It was decided that rather than use a “working party” composed of nations (so that each nation could designate the person who would represent it, subject to that governments instruction) a dispute would be referred to a panel of experts.  The three or five experts would be specifically named and were to act in their own capacities, and not as representatives of any government.  This development arguably marked a shift from primarily a “negotiating” atmosphere of multi-lateral diplomacy to a more “arbitrational” or “judicial” procedure designed to arrive impartially at the truth of the facts and the best interpretation of the law.  All subsequent dispute procedures in GATT contemplated the use of a panel in this manner.

During the Tokyo - Round negotiation, there was some initiative taken to improve the dispute settlement processes of the GATT.  The so-called “Group Framework Committee” of the negotiation was given this task, among others.  However, partly because of the existing procedures, this effort did not get very far.  The result was a document entitled “Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance”.  It was adopted by the contracting parties at their thirty-fifth session in Geneva in November 1979.  Like the other “understandings” resulting from the Tokyo-Round, the precise legal status of the understanding was not clear.  As Jackson as noted, unlike the Tokyo Round Codes and other agreements, it was not a stand-alone treaty.  It was adopted under the general powers of Article XXV of GATT.  Presumably, it was adopted under the general powers of Article XXV to “facilitate the operation and further the objectives” of GATT.  The document was nevertheless very interesting and also very influential since it, along with its annex, consists of a detailed description of the dispute settlement processes of GATT.  In that way, it formed a sort of “ constitutional framework” for these processes.

Jackson has identified the most salient features of this “restatement” of procedure as the most explicit provision for a conciliatory role for the GATT Director General, the provision for Panels (with some ambiguity about whether a complainant had a right to a panel), reinforcement of the PRIMA FACIE nullification or impairment concepts, the outline of the work of a panel including oral and written advocacy, language that permits the use of non-government persons for panels.  While stating a preference for government persons, recognition of the practice of a panel report with statement of facts, and rationale, and understanding that the report is then submitted to the contracting parties for final approval.

Subsequent to the 1979 understanding, there was much dissatisfaction in GATT about the dispute settlement procedures.  At the 1982 ministerial meeting, a new attempt to improve them was made, again with modest success.  The resulting resolution suggests the possibility of departing from the tradition of requiring a consensus to approve a panel report, so that the “losing” party could not block or delay that approval.

The dispute settlement activity of GATT certainly had its ups and downs, beginning as we have seen as a relatively informal process, moving to more formal and objective third-party panels, and gradually developing not only procedural but substantive legal concepts.  During the 1960s, the settlement procedures fell off, but during the 19702, the United States brought a number of cases in GATT, and during and after the Tokyo Round, many more cases were brought (see the attached Table Sourced from John Jackson, THE WORLD TRADING SYSTEM LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 1991, p.99).

It would appear that as at September 1988, appropriately 233 cases were formally brought under Article XXIII of GATT or under another GATT Agreement 9 of these were brought under the MTN Code provisions (not the GATT itself).  Approximately 42 (18%) were settled or withdrawn before a panel or working party was constituted and another group were settled or withdrawn before a panel (or working party) reported its findings.  In all, panel or working party reports were completed in about 73 cases.

Of the panel reports forwarded to the contracting parties, most were “adopted”.  Some others were merely “noted”, or otherwise were not explicitly approved (although none was explicitly rejected).  The procedure of “adoption” by the contracting parties was one of the most troublesome parts of the current procedure.  Since the losing contracting party can generally block acceptance by refusing to form in a “consensus” decision to accept.  Of the findings approved, all but a few gained compliance, although in some cases compliance took many years to achieve.

DISPUTE SETTLEMENT UNDER THE W.T.O.

It is obvious that while GATT rules are diverse and far reaching, their efficacy is much reduced in review of the generous qualification and the absence of an institutional adjudicatory body.  The problem was compounded by resort to individual retaliatory action by a number of states in trade matters (Adekunle, 1995).

The major problem of dispute resolution under GATT rules was the requirement of consensus in all steps and decisions taken in the process.  It was thus possible for a country against whom a complaint was made to block proceedings for a considerable period of time.

THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES, has addressed these problems.  It specifies deadlines for the steps to be taken in proceedings.  While retaining the requirement for consensus.  The maximum time frame for the consideration and adoption of reports by dispute panels, subject to a mutual agreement to extend, is 9 months where there is no appeal and 12 months where the report is appealed against.

The dispute resolution process now has strong institutional support.  The Dispute Settlement Body (DSB) is constituted by the Director - General of the W.T.O.    It exercises over-all supervisory authority over panels and appellate bodies.  It is authorised to establish panels, adopt panel and appellate body reports, and maintain surveillance on implementation of concessions and other obligations.

Article III of the Understanding declares the dispute settlement system of the W.T.O. as a central element in providing security and predictability to the multi-lateral trading system.

Article XXII of the Final Act generally provides for Consultation.  Article XXIII provides for Dispute Settlement and Enforcement.  Article 2 of the understanding covers administration.  Article 3 contain General Provisions.  Article 4 provides for Consultation while Article 5 provides for Gild Offices Conciliation and Mediation.  Article 6, 7 and 8 deals with the Establishment, Terms of Reference and Composition of Panels, Article 9 provides the procedures for multiple complaints.  Article 10 deals with Third Parties, while 11,12, 13 and 14 provide for the Function of Panels, Panel Procedures, Right to Seek Information and Confidentiality respectively.  Article 15, 16, 17, 18 and 19 provide for Interim Review stage.  Adoption of Panel Reports, Appellate Review, Communications with The Panel or Appellate Body and Panel and Appellate Body Recommendations respectively.

Article 20 provides Time Frame for DSB Decisions.  Articles 2 and 22 are concerned with the Surveillance of Implementation of Recommendations and Rulings and Compensation and Suspension of Concessions.  Article 24 provides for Special procedures involving Least Developed Country Members.  Article 25 deals with Arbitration.

Appendix 1 lists the Agreements covered by the understanding.  They are:

(1)        Agreement Establishing the Multi-lateral Trade Organisation;

(2)        Agreements on trade in goods;

(3)        General Agreement on Trade in Services;

(4)        Agreements on Trade Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods;

(5)        Understanding on Rules and Procedures Governing the Settlement of Disputes;

(6)        Agreement on Trade in Civil Aircraft;

(7)        Agreement on Government Procurement;

(8)        International Dairy Arrangement and

(9)        Arrangement Regarding Bovine Meat.

Appendix 2 contains special or Additional Rules and Procedures contained in the Covered Agreements.

Appendix 3 provides for working Procedures while

Appendix 4 contain Provision for Expert Review Groups (Details of the foregoing are given in the oral presentation).

VIII.  CONCLUSION

In this paper, attention has been focussed on the International Telecommunications Union (I.T.U.) and the World Trade Organisation (W.T.O.).  What has emerged from the presentation is that the Telecommunications industry has grown tremendously in recent times.  There is also a global commitment to liberation and deregulation of the industry.  The upshot is the emergence of independent private sectors in the system.  This is in response to the requirement that all service supplies are accorded access to and use of pushe basic telecommunications (network and service, a reasonable and non-discriminating basis).

The premium in the new international telecommunications is trade based on impetus for this development is the W.T.O. Agreement on Basic Telecommunication Services and the GATS which preceded it.  The subsistence of a telecommunications industry under a trade regime as recognised by I.T.U. is the basis of the new milestone set under the policy forum in the Geneva Conference in 1998.

The W.T.O. Agreement on Basic Telecommunication services will affect all I.T.U. members in many respects including the new cost-oriented settlement and accounting system.

THE ECONOMICS OF TELECOMMUNICATIONS REGULATION

Ademola O. Popoola, Phd

Department of International Law

Faculty of Law

Obafemi Awolowo University

ILE IFE, Nigeria

Paper commission for Presentation at the International Conference on Electronic Commerce and Telecommunications in Nigeria Maximising the Benefits of the Digital Economy: 23-26 September 2002 holding at the Golden Gate Restaurant, Ikoyi, Lagos.

THE ECONOMICS OF TELECOMMUNICATIONS REGULATION

I.  INTRODUCTION

First, some preliminary observation.  This Conference which partly seeks to create awareness about, and partly to deepen our understanding of, the “critical issues of development, law policy and regulation” in Electronic Commerce and the operative standards and practices in the Telecommunications Economy could not have come at a more auspicious time than now.  Western Society, as we know only too.

Ademola O. Popoola Phd, Department of International law Obafemi Awolowo University ILE IFE, Nigeria

Well, has experienced three major waves of technological advances each of which changed all aspects of living and working and engendered new challenges for world management.  Each of these waves also required the demise of a previous social structure and its values, replacing it with new structures and values.  As H. Alan Raymond (1986) hasre-marked with insight, each shift was also “significantly wrenching and demanding.  The Third wave - the Information Electronic wave - is marked by advances in information and communications technology (ICT) which advances have done more than almost anything else to drive the lost decade’s economic boom and the integration of markets around the plant.  It goes without saying that much of the economic benefit from ICT and the rapid rise of the INTERNET has so far accrued to the developed world where Electronic commerce is already transforming many industries and where e-mail, cellular phones and instant messaging are becoming ubiquitous.  Money spent on the digital infrastructure that supports these burgeoning new services - from Internet servers to fiberoptic networks - has itself become a major engine of economic growth in some countries, remarked Allen L. Hammend (2001.5) who has further observed that ‘The speed with which ICT is advancing, the corporate economic power it embodies and the wealth it has created are truly astonishing”.  Even then, the revolutionary changes brought on by the microchip and information technologies have caught many businesses in the western society off guard.

For the developing world, there can be no doubt that Internet connectivity is growing, but the increased productivity and other benefits of the digital revolution are still mostly prospective (Hammond.ibid).  The digital gap or digital divide between the developed and developing world is quite real.  More than half of the world’s population has no access to phone networks, while 19 out of 20 people worldwide still lack access to the Internet.

It gives without saying that this lack of access to digital networks is but one of the challenges that face the four billion people more than half of humanity who live at the bottom of the economic pyramid on incomes of less than $1,500 a year.

It is against this background that we intend to discuss the Economics of Telecommunications Regulation.  Two operative concepts in the theme immediately call for clarification namely, ‘Economics’ and ‘Regulation’.  It is to these concepts that we now turn attention.

II.  CONCEPTUAL FRAMEWORK

A.         ECONOMICS

One of the earliest economists, Alfred Marshall, once defined economics as a study of mankind in the ordinary business of life.  Other writers have called economics the practical science of the production and distribution of wealth” and the science wholly studies human behaviour as a relationship between ends and scarce means which have alternative uses”.  In simple terms, it is the function of economics to study how people organise production, consumption and exchange activities as well as manage expenditure.  It is concerned with the manner in which human beings and societies attempt to satisfy   their unlimited and often conflicting wants by means of resources which are not only limited but also have alternative uses.  Essang and Olayide, 1974.

It is worth noting that the study of economics is usually approached at two levels - micro and macro analyses.  In micro - economics, the emphasis is on the behaviour of the individual as a consumer or a producer.  Attention is also paid to small units such as a group of producers, distributors or consumers.  In analysing their behaviour, these units are treated as though they can be isolated from the rest of the economy.  In that wise, the production activity of a firm in micro-economics is for example, hardly connected with the capital and money markets which also constitute integral components of the economy.

On the other hand, in macro-economics, total income, total money supply, and total population, among other items, are aggregated more importantly, effort is made to relate one section of the economy to the other.  Thus, in analysing employment problem for instance, one has to look at the relationship among the money marked, the output market and the labour market.  This is because whatever happens in the money market and the output market has repercussions on the labour market a no VICE VERSA.

From the foregoing, the Economics of Telecommunications.  Regulation as conceived here shall be concerned with the manner in which we ‘operate’ and Regulate the Telecommunications sector with a view to satisfying the apparently unlimited and often conflicting wants of people in society against the background of the fact that the available resources in the sector in particular and the society at large are not only limited but also have alternative uses.  Since our wants are many and the resources available to satisfy them are limited or scarce, choices have to be made between different wants and alternative uses of resources.  The scarcity of resources forces us to economise and to do everything possible to make the best use of available goods and services (Teriba, 1986).  When deciding which of our different wants to satisfy first or later, and with what means we usually arrange and rank our diverse wants in the order of preference or importance which we attach to them - that is according to the economists SCALE OF PREFERENCE.  Quite obviously people will have different scales of preference; but for an individual, the wants with the greatest preference will come highest on his scale of preference, to be satisfied before others which are of low priority and importance to him.  These are economic issues which call for attention in the context of telecommunications in this country.  The modern form of telecommunications entail costs above and beyond those normally encountered with the traditional communication services.  Telecommunication service now require investment in specialised professional skills, extra-administrative procedures.  ‘Investment in computer and decisions regarding tariffs.  Economic calculations must reflect the scope and aims of the Services envisaged.  Economic calculations will also take account of the profitability and funding of projects.  Costs must be minimised by maintaining efficiency and the investment in specialised skills maximised by regular.  Training.

Our approach in this paper will therefore, be MACRO while not ignoring industry specific issues.  We cannot afford to disconnect one vital sector of the economy from the others, and treat the telecommunications sector as though it can be isolated from the rest of the economy.  This is what will happen if we adopt a micro - economic approach and concentrates attention on the “small units” almost in isolation from the rest of the economy.

We have noted earlier on that lack of access to digital networks is one of the challenges that face the four billion people - more than half of humanity - who live at the bottom of the economic pyramid, on incomes of less than $1,500 a year.  Populations have continued to grow rapidly in the poorest areas of the world, and a surge of urban migration, bringing with it unprecedented demands for housing, water, sewage, and jobs, threatens to overwhelm cities.  Biological resources such as forests, fisheries, and the fertile soil on which billions of people still directly depend for food and income are being depleted.  Ezeveine Poresty persist in many regions while malnutrition is rising in Africa and Southern Asia, despite abundant world food supplies, because growing numbers of people can no longer produce enough food for themselves and are too poor to buy what they need (Hammond.ibid).

These problems are already wreaking havoc in other areas as well.  Potential conflicts over scarce resources, Large - Scale migration, and urban crime and instability are already threatening national security in a number of countries.  New forms of terrorism, AIDS and other devastating diseases and the changing climate are also having destabilising effects.  Ever large disparities between have and have not also undermine the kind of social consensus essential for stability and political progress.  The message which comes across unmistakeably is that if these dangerous trends continue; if as Hammond (p.6) has noted “development does not accelerate and if the benefits of economic progress and new technology do not reach those at the bottom of the pyramid”, the future looks increasingly troubled.  A possible scenario which we should avoid is one of “an unstable future ridden with conflict and environmental problems, in which islands of prosperity are surrounded by oceans of porety and frustration “(ibid).  In such a world, even prosperous regions will fear for their security for as Hammond has declared with insightful candor, “when all else fails, the poor will learn to export their misery and anger”.  The way out is an imaginative use of emerging technologies and the creation of synergies or partnerships and cooperation that “combine the skills of major corporations with the growing strength of civil society with a view to addressing the problem of the poor in society.  This then is the background to the discussion which follows spring board.

B.        REGULATION

The term ‘Regulation’ has both a broad and a narrow meaning.  (Ajai & Owansanya, 1994).  The broad meaning extends the term to encompass any government law of policy that affects the economy.  The narrow meaning limits the term to “direct government control or enterprise decisions concerning prices, the amount or quality of output, the nature of the production process and also include the regulation of entry into an industry by licensing, import controls and tariffs” (Fels, 1982).  The vehicle of regulation in both cases is legislation.

It is important to state there that the regulation of the economy takes many forms, but these forms are classifiable into two.  These, according to White (cited by Ajai and Owasanya ibid) are :

(a)        parametric measures and

(b)        pervasive measures. 

The former allows a reasonable autonomy for economic actors and processes.  The latter, on the other hands consists of pervasive state control of the economy White has further classified parametric action into three “first, the familiar regulative processes of macro - economic management. (Interest rates, tariffs, subsidies, taxation etc) taking more or less direct forms, and charged with providing both a stable matrix for the operation of markets and corrections for market failures, second the establishment of an institutional context favourable to industrialisation (for example, a responsive financial system, or a systematic legal frameworks, third, in the infrastructural sense, the state lays down the material (communications, energy, basic construction) and human (education, technique, health), pre-conditions for industrialisation”.

Ghai (1977) has also posited that there are two models of control of an economy namely, the regulatory model where the state administers a variety of controls on the private sector to influence the conduct of economic actors, who are private parties and the model whereby the state actually enters into production and involves itself in the management of the economy.

The regulatory model, as Ajai and Awasanoye (ibid) have noted, functions through operational controls.  Operational controls are applied either to control the development of the economy, or to correct the weakness of the market mechanism, or even the absence of such a mechanism, or to deal with scarcities of raw materials, foreign exchange or in each case, the intention is not to let things take their own course, but to influence or control economic developments.  Economic regulation is linked to connotes and is designed to affect the market mechanism in a direction desired by the government.

Controls could also be positive or negative (My.rdal, 1988), Positive control seek to promote a desired activity, e.g. price subsidies, tax and incentives.  Negative control, on the other hand.  Seek to prohibit or restrict particular activities, e.g. excise duties, and licenses.  Discriminary controls are applied according to the decision of officials while non-discretionary controls are prescribed law or some other general person or principle and operate independently of officials.

When operational controls are removed, deregulation occurs.  And this happens when the regulation of the economy or the direction of economic developments is left to be determined by the market mechanism.

It is worthy of note that an absolutely de-regulated economy in the sense of withdrawal of state intervention in the regulative process the institutional context and the infrastructural sense is unattainable and even undesirable.  It does not exist anywhere in the world.  In the practical, world of affairs the terms ‘Regulation’ and de-regulation are contemplated, in terms of the presence or absence off operational controls over the regulative process or macro - economy.  It is in these senses that we shall be considering Telecommunication Regulation.

The issues of Regulation are :

(1)        Whether or not to do so with a framework of economic liberalisation of maintain state monopoly. In the U.K. for instance, the Postmaster-General enjoyed exclusive privilege over the telephone for over half of a century until 1981. The 1981 Act transferred to the British Telecom (BT) the exclusive privilege of running telecommunications system. The 1981 Act also empowers the Secretary of State to permit persons other than BT to supply and maintain PABX and other terminal equipment.

(2)        Licensing or competition.  Again in the UK the 1981 Act empowers the Secretary of State to license the running of new telecommunication system.  This was utilised in order to provide Valued Added Network Services (VANS) over the public networks.

1.         Duopoly Policy.  Again in the UK, in 1983 the conservative government had determined to make the privatisation of BT its first “flag ship” privatisation of the nationalised industries.  It was accepted that this move would necessitate a new code governing activities in the mancol place.  UK competition laws were weak and ineffective.  In 1983, the Minister for Information Technology made a statement on future competition policy in telecommunication to the effect that the Government did not intend to license operators than BT and mercury to provide the basic telecommunication service of conveying messages, over fixed links, whether cable, radio or satellite, both domestically and internationally during the period to November 1990.  Besides public systems were to be interconnectable.  Simple rescue capacity over circuits leased from BT and mercury would not with certain exceptions eventually in relation to data services, be permitted in the period before July 1989.

(4)        Creating a Regulatory Authority

(5)        Development of competition for a proper appreciation of this issues.  In the next segment of the paper, we shall put telecommunications technology in its proper historical and cultural contexts.

III.   HISTORICAL AND CULTURAL CENTRES

The telephone was invented almost 130 years ago by Alexander Graham Bell.  In those 130 years, the telecommunications network has grown to become the largest man made machine ever made, handling more than 1000 billion calls a year and encompassing the whole globe (Colin D. Long 1995).  The principal developments during that tone have been summarised by Colin D. Long (page 4) as follows

1889    Development of first automatic exchange (Strangers)

1895    Development of radio communications by Marconi.

1901    First radio communication across the Atlantic

1946    First electronic computer

1948    Invention of the transistor

1956    First trans Atlantic telephone cable

1965    First communications satellite;

Invention of Optical fibres

1970s  Introduction of digital communications: First Electronic exchanges start of major growth in data communications.

1980s  Introduction of ISAN

Introduction of cellular radio system

1990s  Introduction of intelligent networks multimedia.

There can be little doubt that the most rapid period of growth is the priod from the late 1960s to the present day.  The rapid growth is attributable to the developments in electronics the development of digital communications and the convergence of telecommunications and computing technologies; the development of optical fibres, and the application of micro - electronics to radio communications.  There are new more than 800 million telephone.  The growth rate for data terminals is about 20 percent per annum.  This rapid growth has been accompanied by a SHARP FALL IN COSTS AND PRICES (Long).

Today, almost all new systems are digital, because such systems offer

(a)        The capability of carrying a multiplicity of services in a common form.

(b)        greater robustness in the presence of noise or interference, and

(C)       Maximum commonality of components and techniques, with computing (ibid).

Until the early 1980s, in almost all countries telecommunications was the subject of monopoly supply with the public network operator normally being a state crued corporation or government department.  Subscribers were not allowed to own their own telephones.  There was also little choice in the models that could be rented from public network operator. This resulted in a situation whereby manufacturers supplied only to public network operators and those operators are often became closely involved in the activities of their suppliers by funding research and development and arranging orders to supply a reasonably constant stream of work.  In effect the whole telecommunications culture was dominated by the public network operators.

This scenario (one of monopoly) represented a sharp contrast to the competitive culture of the new computing industry which used to a large extent the same technology and saw rapid reductions costs and improvements in capabilities.

There was the need for interconnectivity at an international level.  This was met through the International Telecommunications Union (I.T.U.), and the I.T.U. which prepared technical recommendations primarily on the interconnection and inter-operation of natural services.  The main participants in the I.T.U. were the public network operators, although other parties coned contribute.  In practice they exerted much less influence.  The first wave of change to this monopoly culture came from the developments in data, communications between computers, where the competitive computer culture said the advantages of standardisation in avoiding customers being locked into particular renders, and began to develop OPEN Systems Interconnection (OSI).  The early standards wok on OSI was carried out through the normal standardisation boches (I.S.O.), which had a much more open structure than the I.T.U.T. and with more involvement of manufacturers and academics.  Good cooperation eventually evolved between the two groups.

The development of competition occurred first in the supply of terminal equipment and is spreading more gradually to the provision of services and infrastructure starting with data and value added serviced.  As a result of the need for inter-connectivity, and also the need to protect the public networks from the harm that could be caused by connecting unsatisfactory apparatus, competition created a large new demand for standards for national as well as international use.

The process of liberalisation created a major need for technical standards which need is being met in Europe to a large extent by the European Telecommunications Standards Institute (ETSI) which was created out of some of the technical committees of the old European conference of Posts and Telecommunication (CEPT).

It is worthy of note that with the digitalisation of telecommunications, the technologies of computing and telecommunicating are converting rapidly.  We have already seen that the backgrounds of the two cultures are different.  While telecommunications was closed, standardised, and monopolistic, computing is open, unstandardised and competitive.

designed & built by: Henry Nwachukwu

e-mail: henrynwachukwu1@yahoo.com