¹ Gotlieb, A.E. and Dalfen, C.M., “Direct Satellite Broadcasting: A Case Study in the Development of the Law of Space Communications,” 7 Canadian Yearbook of International Law 33–60 (1969) (hereafter “Case Study”).Google Scholar

Christiane Verdon and Charles Dalfen, M., “La Coopération régionale: nouvelle voie ou impasse dans le développement du droit des satellites de radiodiffusion directe?,” 8 Canadian Yearbook of International Law 39–60 (1970)Google Scholar (hereafter “Cooperation”).

² Gotlieb, and Dalfen, , “Case Study,” 58.Google Scholar

³ The organizations’ names in full are, respectively, the International Telecommunication Union (Geneva); the United Nations Educational, Scientific and Cultural Organization (Paris); and the United International Bureau for the Protection of Intellectual Property (Geneva). It was not intended to suggest either that this was how these organizations perceived their functions or that this was their primary function. What was intended was to suggest that viewed in terms of the development of international law and co-operation relating to direct satellite broadcasting, this was not an inappropriate way of characterizing their contribution.

⁴ Gotlieb, and Dalfen, , “Case Study,” 57–58.Google Scholar

⁵ United Nations Committee on the Peaceful Uses of Outer Space, established as a permanent committee under A/Res. 147a (XIV) of December 12, 1959 (hereafter “Outer Space Committee”).

⁶ United Nations Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction, established under A/Res. 2340 (XXII) of December 18, 1967.

⁷ Approved in A/Res. 2453B (XXIII), December 1968, operative paragraph 5.

⁸ “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space,” A/Res. 1962 (XVIII). U.N.G.A.O.R. Supp. 15, at 15, U.N. Doc. A/5656 (1963).

⁹ Treaty of Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies, commended unanimously by the General Assembly in Res. 2222 (XXI) of December 19, 1966. In force as of October 1967.

¹⁰ Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, approved by the General Assembly in Res. 2345 (XXII) of January 10,1968. In force as of December 1968.

¹¹ Convention on International Liability for Damage Caused by Space Objects, approved by the General Assembly in Res. 2779 (XXVI) of November 29, 1971, opened for signature on March 29, 1972 (hereafter “Liability Convention” ).

¹² See “Report of the Legal Sub-Committee on the Work of Its Eleventh Session,” Doc. A/AC.105/101, May 11, 1972, paragraphs 15–21.

¹³ Ibid., paragraphs 22–31.

¹⁴ Gotlieb, and Dalfen, , “Case Study,” 58.Google Scholar

¹⁵ Ibid., 60.

¹⁶ Ibid., 58. Cf. “Report of the Second Session of the Working Group on Direct Broadcast Satellites,” U.N. Doc. A/AC. 105/66, August 12, 1966, paragraphs 13 and 20 (hereafter “Second DBS Report”).

¹⁷ Ibid., 60.

¹⁸ Idem.

¹⁹ Ibid., 58.

²⁰ “Report of United Nations Panel Meeting on the Establishment and Implementation of Research Programmes in Remote Sensing,” U.N. Doc. A/AC. 105/98, December 1971, paragraph 3. The methods of remote sensing can be divided into two major groups — active and passive. The former employ operational sensors, capable of generating radiation which, after interaction with objects of interest, return a signal which is measured by on-board receivers. Passive methods are based on registering radiation from the earth's surface and the atmosphere. They include visual observations and observations yielding photo and TV pictures (within the visual light range as well as within the near infra-red, infra-red and microwave ranges.) See “Background Paper by the Secretary-General Assessing United Nations Documents and Other Pertinent Data Related to the Subject of Remote Sensing of the Earth by Satellites,” U.N. Doc. A/AC.105/C.1/WG.4/CRP.7, December 6, 1972, paragraphs 5–7 (hereafter “Background Paper”).

²¹ See Background Paper, Chap. II, “Potential Economic and Social Benefits from Space Remote Sensing,” passim.

²² For full list of possible benefits see Background Paper, paragraph 103. In regard to minerals in particular, see paragraph 155 where a note from the U.N. Secretary-General is quoted as follows: “The United Nations mineral survey project in Panama … has already utilized side-looking radar imagery … in a difficult area of Darien where a belt of potentially important copper mineralization has been located” Cf. Ν. H. Fisher, “International Implications of Remote Sensing,” Proceedings Before the Committee on Science and Astronautics, U.S. House of Representatives, January 36, 1972, at p. 3.

²³ See “Report of the Working Group on Direct Broadcast Satellites,” Doc. А/ AC.105/51, February 26, 1969, paragraph 9 (hereafter “First DBS Report”).

²⁴ See the section entitled “Extracting Information from Data” in D. S. Fink, “Statement on Current Capabilities, State of the Technology, and Future Requirements of Remote Sensing of Earth Resources,” Proceedings Before the Committee on Science and Astronautics, U.S. House of Representatives, January 25, 1972, at 5. Cf. Background Paper, paragraph 74.

²⁵ See “Development of Natural Resources: Natural Resources Satellites,” Report of the Secretary-General, U.N. Doc. E/4779, February 4, 1970, Annex, paragraph 22 (hereafter “Natural Resources Report”). Cf. Carl Hammer, “Space Communications,” Proceedings before the Committee on Science and Astronautics, U.S. House of Representatives, January 26, 1972. Cf. also Gregory, Alan F., “A Possible Canadian Role in Future Global Remote Sensing,” A.I.A.A. Paper No. 72–742 (1972).Google Scholar

²⁶ See, for example, Robert M. White, “Remote Sensing of Earth Resources and Environment,” Procceedings Before the Committee on Science and Astronautics, U.S. House of Representatives, January 26, 1972, at 3–4. Other non-ground techniques include balloons, which France has employed with some degree of success (see Background Paper, paragraphs 45–48) and sounding rockets, which the U.K. has used (ibid., paragraph 49).

²⁷ See Natural Resources Report, paragraph 5.

²⁸ Idem.

²⁹ See “Broadcasting from Satellites,” Working Paper of Canada and Sweden, U.N. Doc. A/AC. 105/49, Appendix 7, at 90. This is the coverage that is theoretically attainable under ideal conditions.

³⁰ See Natural Resources Report, Annex, paragraph 21.

³¹ Idem.

³² See Background Paper, paragraph 13.

³³ See, for example, reference to “privacy of nations” as “the most touchy problem of all,” in Е. E. David, Jr., “Data Handling,” Proceedings Before the Committee on Science and Astronautics, U.S. House of Representatives, January 87, 1972, at 1. Cf. reference to a “national right of privacy,” in Taubenfeld, H.J., “Legal Aspects of the Use of Satellites in Discovering and Exploiting Earth Resources,” AIAA Paper No. 68–921 (1968), at 94.Google Scholar

³⁴ Background Paper, paragraph 183. Cf. the following statement by the then Canadian Minister of Energy, Mines and Resources : “ … I am concerned about future-generation resources satellites; in spite of what any experts tell me, it may be that devices will be developed in the future which can detect mineral deposits from space. If such a situation developed, we would certainly have to review our regulations on exploration permits, to assume the protection of Canadian exploration companies”: Greene, J.J., “Implications of Remote Sensing,” C.A.S.I. Journal, May, 1971, at 172.Google Scholar This statement demonstrates the distinction between fears and realities that frequently arises in regard to remote earth sensing.

³⁵ In this connection, the very candour of the U.S. in outlining the objectives of its Earth Resources Technology Satellite (ERTS-A) launched on July 23, 1972, gave rise to concern. The third objective, as stated by NASA, was to “determine how repetitive, synoptic, multispectral observations by spaceborne instruments can be of economic or social value to commercial, scientific and governmental interests.” Quoted in Background Paper, paragraph 36.

³⁶ Espionage, however, is not really what most states have expressed concern about. This is probably due in part to the fact that satellite espionage has been going on for a long time in secret, partly to the fact that even if they know about it, there is very little that could realistically be done about it, and partly perhaps to the general tendency to regard military activities as far less amenable to regulation than commerce.

³⁷ First D.B.S. Report, paragraph 9.

³⁸ See Fisher, supra note 22, at 3 for Australian practice. Cf. J. J. Greene, supra note 34.

³⁹ See Reports of the Committee on the Peaceful Uses of Outer Space to the twenty-fifth session of the General Assembly, G.A.O.R. Supplement 10.20 (A/8020), paragraphs 25 and 47; and to the twenty-sixth session, G.A.O.R. No. 20 (A/8420), paragraphs 10, 11, 12 and 37.

⁴⁰ See Report of the Scientific and Technical Subcommittee, 8th Session, U.N. Doc. A/AC.105/95, July 19, 1971, paragraph 16 (hereafter “Eighth Report”). For complete terms of reference, see paragraphs 16 through 22. This was endorsed in GA/Res. 2778 (XXVI).

⁴¹ See Eighth Report, paragraph 22.

⁴² The main objective of the Working Group was stated at paragraph 16 of the Eighth Report, namely “to promote the optimum utilization of this space application, including the monitoring of the total earth environment for the benefit of individual States and of the international community, taking into account, as may be relevant, the sovereign rights of States and the provisions of the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.” See also paragraph 17(c), requesting the Working Group to “make recommendations for possible development, provision and operation of data collection and utilization systems in the United Nations or other international framework, taking into account the economic, social and legal implications for the international community that might arise as a result of selecting any particular system.”

⁴³ “Survey of Discussion relating to Direct Broadcast Satellites in the United Nations and Specialized Agencies,” OSAD/Background Paper No. 1 (WG-3), February 7, 1969.

⁴⁴ The other members of the Task Force were France, India, Sweden, the U.S.A. and the U.S.S.R. Note the disclaimer in the covering “Note by the Secretariat”: “Since this assessment was compiled from sources which expressed a wide range of views on specific aspects of remote sensing from space, it was obviously not possible for individual members of the Task Force to agree with all views expressed in this compilation. By the same token, this background paper does not necessarily reflect the viewpoints of the Secretariat.”

⁴⁵ Mr. Franco Fiorio, Scientific Counsellor in the Embassy of Italy in Washington.

⁴⁶ Background Paper, at 1. For full statement of Swedish “Supplementary Elements of Analysis,” see Background Paper, at 10–12.

⁴⁷ For a full statement of the Chairman’s framework, entitled “Main Areas of Future Study and Debate,” see Background Paper, at 9–10.

⁴⁸ This represents a compromise between those countries that wished to see a full comprehensive discussion and analysis (such as Sweden and, to an extent, Canada) and those that wanted to limit the Secretariat to the mere cataloguing of official statements on the subject (such as the U.S.A.). The bibliography of the material before the Working Group, containing 102 items, is annexed to the Background Paper, at 69–75.

⁴⁹ Second DBS Report, Sec. IV, paragraphs 19–29.

⁵⁰ Background Paper, paragraphs 167–77.

⁵¹ Ibid., paragraph 167.

⁵² Specific references are made in paragraph 168 of the Background Paper to the principles in Articles III, IV, IX and XI of the Outer Space Treaty.

⁵³ Ibid., paragraph 169.

⁵⁴ Ibid., paragraph 170.

⁵⁵ Ibid., paragraph 173.

⁵⁶ Ibid., paragraph 175–76.

⁵⁷ Ibid., paragraph 175.

⁵⁸ Ibid., paragraph 177.

⁵⁹ Cf. Greene, supra note 34; Taubenfeld, supra note 33; and Fisher, supra note 22.

⁶⁰ Background Paper, paragraph 184.

⁶¹ Idem.

⁶² Ibid., paragraph 185. Cf. Greene, op. cit.

⁶³ Ibid., paragraph 187.

⁶⁴ Ibid., paragraph 189.

⁶⁵ One example of an ignored document of some importance is the Argentinian Draft International Agreement on Activities Carried out through Remote Sensing Satellite Surveys of Earth Resources, U.N. Doc. A/AC. 105/C.2/L.73, June 26, 1970.

At paragraph 307 of the Background Paper, it is suggested that the Argentinian Paper has not been discussed “inasmuch as it has been submitted directly to the competence of the Legal Subcommittee.” Whether this is a valid reason for not examining it at all is doubtful.

⁶⁶ Such an analysis is provided, for example, in Packard, R.F., “International Legal and Political Aspects of Earth Resources Surveying by Satellite,” AIAA Paper No. 70–331 (1970), Item 51 on the Bibliography, at 4.Google Scholar

⁶⁷ Cf. Argentinian proposal, Article 6. Cf. also Fisher, supra note 22, at 3.

⁶⁸ Such a discussion is suggested, for example, in J. W. Sherman, “Space Craft Oceanography — Its Scientific and Economic Implications for the Next Decade,” Item 62 of the Bibliography to the Background Paper. It is also suggested in Fisher, supra note 22, at 4–5.

⁶⁹ This is not, however, to suggest that the Liability Convention would apply, since it is confined to damage caused by a space object through physical impact.

⁷⁰ This is discussed in H. J. Taubenfeld, supra note 33, Item 65 of the Bibliography to the Background Paper.

⁷¹ This is suggested in Article 7 of the Argentinian proposal.

⁷² Background Paper, paragraph 177 (emphasis added).

⁷³ Ibid., 9.

⁷⁴ Idem.

⁷⁵ See the Terms of Reference of the Working Group, paragraphs ai and 19 respectively, endorsed in GA Res. 2778 (XXVI), at operative paragraphs 3 and a respectively.

⁷⁶ These include the ITU, WMO, WHO, ICAO and ILO as well as a number of intergovernmental organizations. See Background Paper, paragraphs 155 et. seq.

⁷⁷ Verdón and Dalfen, “Cooperation.”

⁷⁸ Ibid., 56.

⁷⁹ Idem.

⁸⁰ Idem.

⁸¹ For details of this project see Frutkin, A.W., “NASA’s International Space Activities,” International Cooperation in Outer Space: A Symposium, U.S. Senate Doc. No. 92–57, December 9, 1971, at 17–18.Google Scholar

⁸² The C.T.S. arrangements were covered by Exchanges of Notes accompanied by Memoranda of Understanding. The Canada-U.S. Note was exchanged in November 1971 and the Note between Canada and the European Space Research Organization (ESRO) in April 1972.

⁸³ Background Paper, paragraph 209.

⁸⁴ Ibid., paragraph 208.

⁸⁵ Note of Canadian Ambassador to Secretary of State of the U.S.A. exchanged on May 15, 1971.

⁸⁶ Annex to the Note, paragraph (c).

⁸⁷ Dr.Fletcher, J.C., “NASA’s Long Range Earth Resources Survey Program,” Proceedings Before the Committee on Science and Astronautics, U.S. House of Representatives, January 26, 1972, at 5.Google Scholar

⁸⁸ Background Paper, Chapter V, “Organizational Requirements.”

⁸⁹ Ibid., paragraphs 210–33.

⁹⁰ The furthest the paper goes is to add a paragraph (212) as follows: “Other documents point out that organizations such as INTELSAT and INTER-SPUTNIK emerged to deal with quite different types of activity, politically, and also technologically, and that other organizational models cannot be applied to remote sensing without considering their specific technological and political contexts.” It then goes on, however, to provide a detailed discussion of the structure of these organizations.

⁹¹ Cf. Packard, supra note 66, at 4. Cf. also Fisher, supra note 22, at 6.

⁹² See Gotlieb, A.E. and Dalfen, C.M., “International Relations and Outer Space: The Politics of Cooperation,” 25 International Journal 685, 688 et seq. (1970).CrossRefGoogle Scholar

⁹³ See “Report of the Working Group on Direct Broadcast Satellites on its Third Session,” U.N. Doc. A/AG. 105/83, May 25, 1970, Recommendation 5, at page 16. The furthest the Background Paper goes in this connection is in its 3rd alternative for the ground segment of a global remote sensing system which envisages the “establishment of a system of regional earth stations,” at paragraph 232.

⁹⁴ Background Paper, paragraphs 234 et seq.

⁹⁵ Argentinian proposal, supra note 66.

⁹⁶ For full discussion, see Background Paper, paragraphs 234–40.

⁹⁷ For full draft see U.N.E.S.C.O. Doc. 17C/76, July 21, 1972.

⁹⁸ U.N.E.S.C.O. Declaration, Article II (1).

⁹⁹ Ibid., Article III (2).

¹⁰⁰ Ibid., Article V (1).

¹⁰¹ Ibid., Article IV (2).

¹⁰² Ibid., Article VII (1).

¹⁰³ Ibid., Article VII (2).

¹⁰⁴ The Declaration was then adopted by a vote of 55 in favour and 7 against (including Canada), with aa abstentions. See 11 Int'l Leg. Mat. 1476 (1972).

¹⁰⁵ Hereafter, “Soviet Draft,” TJ.N. Doc. A/8771, August 9, 1972.Google Scholar

¹⁰⁶ Soviet Draft, Article I.

¹⁰⁷ Soviet Draft, Article V.

¹⁰⁸ Soviet Draft, Article VI(2) (d). Other categories include:

• (a)

  (a) Broadcasts detrimental to the maintenance of international peace and security.

• (b)

  (b) Broadcasts representing interference in intra-state conflicts of any kind.

• (c)

  (c) Broadcasts involving an encroachment on fundamental human rights, on the dignity and worth of the human person and on fundamental freedoms for all without distinction as to race, sex, language or religion.

• (d)

  (d) Broadcasts undermining the foundations of the local civilization, culture, way of life, traditions or language.

• (e)

  (e) Broadcasts which misinform the public on these or other matters.

¹⁰⁹ Soviet Draft, Article VII.

¹¹⁰ U.N.E.S.C.O. Declaration, Article I.

¹¹¹ Soviet Draft, Article I (emphasis added).

¹¹² U.N. Doc. A/C.1/L.605, October 12, 1972.

¹¹³ Agreement cited supra note 85, Diplomatic Note, paragraph 2.

¹¹⁴ Statute of the International Court of Justice, Article 38 (1).