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Direct Satellite Broadcasting: A Case Study in the Development of the Law of Space Communications

Published online by Cambridge University Press:  09 March 2016

A. E. Gotlieb  and
C. M. Dalfen
A. E. Gotlieb
Affiliation:
Government of Canada
C. M. Dalfen
Affiliation:
Carleton University
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Extract

The purpose of this article is to show how legal norms are evolving in an activity newly opened for man by very recent and farreaching technological developments.

The 1963 Radio Regulations of the International Telecommunication Union (ITU) define a “broadcasting satellite service” as “a space service in which signals transmitted or retransmitted by space stations, or transmitted by reflection from objects in orbit around the Earth, are intended for direct reception by the general public.” Direct satellite broadcasting thus refers to the transmission of messages directly to the houses or communities of the general public via artificial space satellites. While such a system does not exist at present, it is expected that it will be feasible within less than a decade.

Type
Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 7 , 1969 , pp. 33 - 60
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1969

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References

1 I.T.U. Regulations, Section II-A, 84 AP.

2 See infra.… from the conclusions to the (First) Report of the Working Group on Direct Satellite Broadcasts, UN Doc. A/AC. 105/51.

3 “Sources” is not used here in the sense of the various bases of authority of international law, that is, international convention, custom, etc., as per Article 38 of the Statute of the International Court of Justice. Rather it refers to the bodies of norms, arrangements or understandings applicable to spheres of activity that are relevant to direct satellite broadcasting.

4 UN Doc. A/AC. 105/59. The authors are, however, fully responsible for all views expressed in this article.

5 Hereafter Outer Space Committee. The committee was established on an Ad Hoc basis by the General Assembly under A/Res. 1348 (XIII) of December 13, 1958. It was reconstituted as a permanent committee under A/Res. 1472 (XIV) of December 12, 1959.

6 December 20, 1961.

7 December 14, 1962.

8 December 13, 1963.

9 Jenks, C.W., “Space Law Becomes a Reality,” in Current Problems in Space Law: A Symposium 15 (London, 1966).Google Scholar

10 Hereafter Space Treaty. For text, see Annex A to GA/Res. 2222 (XXI), December 19, 1966.

11 Cf. Jenks, op. cit. supra note 9, at 16.

12 Thus “free use” would be limited by prohibitions against certain military uses (Article 4(2)), against harmful interference with the lawful uses of outer space by others (Articles 9(3) and (4))) etc.

13 This article begins as follows: “The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.”

14 Cf. the 1963 Resolution on the Legal Régime of Outer Space of the Institute of International Law, which states that “All States shall ensure that space telecommunications comply with the regulations of the International Telecommunication Union.” The resolution was adopted unanimously at Brussels on September 11, 1963.

15 On the situation of scarcity giving rise to the need for reserving a part of the spectrum, see 1966 Oslo Report 215–1 of the CGIR on direct broadcasting at 445; cf. A/AC. 105/49, part I.

16 In establishing these criteria, as with respect to other assignments, the principles of space law should be applied. However, as pointed out earlier, legal principles might have to vie with each other. Regarding allocations within a cleared band, the principles of free use (first-come, first-served), of equality (minimum bandwidths), and of the optimum common interest (which might dictate a minimum bandwidth to potential direct broadcasting consortia or organizations, or the proportionality of bandwidths to present readiness and capabilities for using them) will all have to be blended and optimized.

17 A/AC. 105/59, at 15, paragraph 16.

18 UN Press Release OS/324, June 26, 1969.

19 The definition agreed upon is as follows: “Damage means loss of life, personal injury or other impairment of health, or damage to or loss of property of States or of their persons, natural or juridical, or of international organizations.”

20 The main Agreement Establishing Interim Arrangements for a Global Commercial Communications Satellite System and the integral Special Agreement were opened for signature by governments in Washington on August 19, 1964.

21 On the global level, there is “Intersputnik” the USSR-sponsored global communications system which, although announced in the summer of 1968, has not as yet been organized. The main distinguishing features of the proposed scheme are that it provides for the membership of all states (v. Intelsat, which is open to ITU members only) and that there is to be no weighted voting in its organs of decision (v. Intelsat, where use is related to investment and investment to voting) ; on a regional level, the European space organizations are discussing a television distribution satellite system; on a bilateral level, the Franco-German “symphonie” project might be noted; and on a domestic level the Telesat Canada Corporation has been established to own and operate Canada’s domestic satellite system.

22 This last represented a co-operative effort not only in terms of coverage and transmission, but also in terms of producing the programme itself specifically for satellite transmission, building on the lessons and expanding on the scope of the first such programme. This had been produced for the inauguration of transcontinental satellite television in 1962. "Our World" (1967) was contributed to and carried by major television organizations of the world. It involved international consultative machinery and live contributions from Australia, Canada, Japan, Mexico, the United States and many Western European countries. The production of the 3-hour programme also involved the acceptance of programme ideas, language and content, the clearance of copyrights, and the consideration of the various national technical standards for and by each country participating.

23 Resolution 110(II).

24 The Convention on the Use of Broadcasting in the Cause of Peace (Geneva, 1936), according to which, inter alia, broadcasts inciting war, etc., were barred, is in force now only among 12 states.

25 In this section the authors have relied partly on the informal working paper for the Members of the Working Group on Direct Broadcast Satellites, entitled “Survey of Discussions relating to Direct Broadcast Satellites in the United Nations and Specialized Agencies”, OSAD/Background Paper No. I (WG-3), February 7, 1969.

26 UN Gen. Ass. Agenda, Item 28, Annexes, 21, A/5549, Add. 1.

27 For fuller text see supra.…

28 Conference Room Paper No. 1, March 23, 1964.

29 A/AC. 105/C. 1/WP. 26.

30 A/AC. 105/20, at 10.

31 A/AC. 105/WG. 1:SR.7, at 6.

32 A/AC. 105/C.2/SR.57, at 13 (Parentheses ours).

33 A/AC. 105/C.2/WP. No. 19.

34 In order of speaking, USSR, USA, India, UK, Italy, Czechoslovakia, France and Mexico, A/AC. 105/C.2/PR. 68, at 46–61.

35 UN Gen. Ass., 21st Sess., First Committee, 1493rd meeting, December 17, 1966.

36 A/AC. 105/PV. 47, at 32.

37 Ibid., 37.

38 Ibid., 51–52.

39 By the delegates of Czechoslovakia (A/AC. 105/C.2/SR. 80, at 15), and Japan (ibid., SR. 83, at 16) as well as by the ITU representative (ibid.).

40 By the delegates of Sweden (A/C. 1/PV. 1501, at 16–20), Czechoslovakia (A/AC. 1/PV. 1499, at 27), the UAR (ibid., 50–57) and France (A/G. 1/PV. 1498, at 11–15).

41 A/Res. 2260 (XXII), paragraph 13.

42 A/AC. 105/C. 2/SR. 104, at 9.

43 A/7285 Annex III, at 136.

44 See numerous statements in A/AG. ros/PV. 54–58.

45 Vienna, August 1968.

46 A/7285, at 5–6. The report was adopted on October 18, 1968.

47 A/AC. 105/51.

48 Loc. cit., paragraphs 9 a-c. Emphasis in the report. An India-U.S. agreement signed at Washington on September 18, 1969, provides for the establishment of a direct satellite broadcasting (community) system for educational purposes in India. The system will comprise American spacecraft and Indian ground equipment. See “India to Use U.S. TV Satellite for Village Education in 1972,” New York Times, Tuesday, September 23, 1969.

49 A/AC. 106/66. The report is discussed fully below.

50 Question 12/IV.

51 See on p. 59 OSAD Background Paper No. 1 (WG-3), loc. cit., bibliography of CCIR studies on feasibility of direct broadcasting, relevant technical factors and frequency sharing considerations.

52 One recent example of CCIR study activity was the June 1969 meeting in Ottawa of International Working Party IV/1 on technical factors affecting frequency and orbital utilization.

53 UNESCO 13 C/Res. f. 2123.

54 UNESCO/MC/52, at 4–16.

55 COM/CS/68/1/7, at 7.

56 UN Doc. A/AC. 105/60. See annex p. 1 of that document for a bibliography of UNESCO Reports on space communications. For additional bibliography, see OSAD Background Paper No. 1, loc. cit. at 60.

57 A/AC. 105/49.

58 A/AC. 105/50. The others were not submitted as official documents.

59 A/AC. 105/WG. 3/WP. 1.

60 A/AC. 105/63.

61 A/AC. 105/59.

62 A/AC. 105/61.

63 A/AC. 105/62.

64 A/AC. 105/64.

65 A/AC. 105/65.

66 A/AG. 105/59, at il. Communications satellites must share the spectrum not only with other types of satellites (weather, navigation, military, etc.,) but also with all terrestrial radio communication systems, which represent the overwhelmingly predominant number of claims on it.

67 The spectrum (and perhaps the equatorial orbit will soon achieve this status) is widely regarded, like space, as the common property of mankind, but unlike space as a very limited resource. With regard specifically to direct satellite broadcasting, the situation is particularly critical because within the bands on the frequency spectrum presently allocated to broadcasting, only bands 8 and 9 (30 to 3000 mc/s) are free enough of ionospheric interference. Channels in these bands are, however, heavily assigned on a planned basis throughout most of the world. While band 10 (3 to 30 GHz) is clear, technically suitable, and the 11.7–12.7 GHz band has been allocated for broadcasting, home receiving equipment for it is not yet available. (1966 Oslo Report of the CCIR on Direct Broadcasting, 445; cf. A/AC. 105/59, at 12, paragraphs 5 and 6).

68 A/AC. 105/66, paragraph 15.

69 Ibid., paragraph 54.

70 Ibid., paragraph 20.

71 Ibid., paragraph 21.

72 Ibid., paragraph 22.

73 Ibid., paragraphs 26 and 56.

74 Ibid., paragraph 27.

75 Ibid., paragraphs 28 and 57.

76 This meeting, part of the programme of continuing UNESCO study, has on its agenda the following items which are relevant to direct satellite broadcasting: international arrangements on the use of space communications for the free flow of information; the furthering of satellite TV transmissions by ensuring their legal protection against uses not authorized by the originating body; and the assessment of the requirements of education, science and culture in the future allocation of frequencies for space communications.

77 A/AC. 105/66, paragraph 23.

78 Cf. A/AC. 105/59, at 20, paragraph 11.

79 A/AC. 105/66, paragraph 32.

80 A/AC. 105/62, Section V.(2) and A/AC 105/63, paragraph 6 respectively.

81 A/AC. 105/65, paragraph 18.

82 A/AC. 105/59, at 21, paragraph 14.

83 A/AC. 105/66, paragraph 24.

84 Ibid., paragraph 34.

85 A/AC. 105/63, paragraph 6.

86 A/AC. 105/65, paragraph 23.

87 A/AG. 105/62, Sec. V.(3).

88 A/AC. 105/65, paragraph 23.

89 A/AC. 105/66, paragraph 63.

90 Canadian statement delivered July 29, 1969.

91 Statute of the I.L.G., Article 15. The I.L.C. was constituted in Resolution 174 (II), November 21, 1947.

92 Unanimously commended by the General Assembly on December 19, 1967 (see Annex to Res. 2345 (XXII)), opened for signature on April 22, 1968, and now acceded to by 28 states.

93 A/AC. 105/66, paragraphs 13 and 20.

94 France and Brazil were two of the countries that raised such doubts. See A/AC. 105/C. 2/SR/57; ibid. SR/62; ibid. SR/64; ibid. SR/69 and ibid. SR/71 for the expression of these doubts.