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IAC-06-E3.1B.06
LEGAL AND POLICY ISSUES RELATING TO THE MILITARY USES OF
COMMERCIAL DUAL USE SATELLITE APPLICATIONS
Ricky J. Lee*
Introduction
For the past few decades, various satellite
applications have been developed with both
military and civilian uses. For example,
satellite technologies such as remote sensing
and satellite mobile telecommunications have
been developed for both military and civilian
users. In addition, global positioning systems
were designed for a military application that,
with the end of the Cold War, had made a
successful transition to civilian use. However,
it is notable that, until the past and present
decade, military and civilian satellites were
exclusive to each other but are both
government owned. It is only in recent years
that private and/or commercial satellites have
become a significant provider of satellite
services and are capable of being used by both
military and civilian customers.
This paper discusses the legal and policy issues
arising from military use of civilian satellites
and civilian use of military satellites that utilise
dual use technological applications. Particular
focus is placed on military use of commercial
remote sensing, commercial satellite mobile
communications systems and civilian use of
military global positioning systems. The paper
then concludes with a proposal for some
international guidelines on military use of
potentially sensitive dual use satellite
technologies and applications.
Copyright © 2006 by the author.
Published by the IAF or the IAA with permission.
Lawfulness of Military Uses of Outer Space
OUTER SPACE TREATY
The 1967 Outer Space Treaty, the earliest and
most important of the international treaties
concerning the law of outer space, has a
number of general and specific provisions
dealing with military uses of outer space. In a
general sense, it provides that outer space “shall
be for exploration and use by all countries
without discrimination of any kind, on a basis
of equality and in accordance with
international law”.1 Such exploration and use
of outer space “shall be carried out for the
benefit and in the interests of all countries,
irrespective of their degree of economic or
scientific development”.2
Specifically, Article III of the Outer Space
Treaty requires activities in outer space to be
conducted “in accordance with international
law, including the Charter of the United
Nations, in the interest of maintaining
international peace and security and
promoting international cooperation and
understanding”.3 Article IV of the Outer
Space Treaty further require countries not to
“place in orbit around the Earth any objects
carrying nuclear weapons or any other kinds of
weapons of mass destruction … or station such
weapons in outer space in any other manner”.4
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EXPLORATION AND USE FOR THE BENEFIT AND
IN THE INTEREST OF ALL COUNTRIES
Conceptually, it is difficult to see how military
applications and uses of outer space can be said
to be “for the benefit and in the interests of all
countries” as required by the Outer Space
Treaty. This is because military activities are
used by a country to enable aggression against
other countries or to defend itself against other
countries. As such, it would by definition be
to the detriment and against the interest of at
least one other country. Therefore, in order to
determine the lawfulness of military uses of
commercial dual use satellite applications, it is
prudent to first determine the legal content
and effect of the “benefit and interest of all
countries” requirement and, further, to
ascertain whether any such requirement is
imposed on military means or military ends.
The crucial determination to be made in the
context of requiring space activities to be “for
the benefit and in the interest of all countries”
is whether this imposes a positive and specific
obligation “regarding the sharing the benefits
of space exploration and use” or merely an
“expression of desire that the activities should
be beneficial”, in contrast to being harmful “in
a general sense”.5 Gorove, who had analysed
this provision in detail, argued for the latter
and regarded most satellite operations and
applications, such as telecommunications,
television broadcasting, remote sensing and
power generation as being beneficial in a
general sense and were sufficient to satisfy the
requirement without the need to share any
other benefit.6 In so doing, Gorove pointed to
a number of factors that persuaded him to that
view, which is shared by commentators from
both industrialised and developing countries.7
First, the basis and criteria for determining
what is of benefit to a particular country are
almost entirely subjective determinations.
What may be considered beneficial to one
country may well be detrimental to another.
Further, what may be considered beneficial
today may be considered detrimental
tomorrow with the aid of new information
and the benefit of hindsight.8 This is unlikely
to have been the intended outcome of the
drafters of the Outer Space Treaty.
Second, the benefits and interests of all
countries must include, by definition, the
country that was conducting that particular
exploration and use of outer space and/or the
celestial bodies.9 Accordingly, the interests of
that country, presumably extending to
commercial interests, would not be served if
they were not taken into account in assessing
the sharing of benefits derived from a
particular activity in outer space.
Third, it is unclear from the provision whether
it is the means (obligation de moyens) or the
ends (obligation de résultat) that must be in the
interest and for the benefit of all countries.10 If
it is the ends derived from such activities, then
it must be noted that the existing body of space
law provides no mechanism for any sharing or
distribution of such benefits, even though one
would have thought that serious objectives
would be raised by most countries. If it is the
means itself, then the requirement would be
no more than a negative prohibition on
countries conducting activities that are
detrimental to the interests of other countries.
Monserrat, for example, in advocating the view
that all space activities must be subject to the
“global public interest”, suggested that this
“does not admit any form of exploitation and
use of the outer space [that is] capable of
causing bad and damage [sic] to a country and
to people, to the whole humankind or to part
of it, as well as hurting their legitimate
interests”.11
The foregoing analysis may be crystallised to
produce the most likely outcome, namely that
the Outer Space Treaty may be interpreted as
creating an obligation that is imposed on the
activity rather than the results derived thereof.
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If the provision does impose a specific and
positive duty but such a duty is imposed on the
activity instead of the results derived thereof,
then the duty may be interpreted as a negative
duty of ensuring that the activity does not
cause a detriment to any other country. As
discussed above, the military uses of outer
space and the military use of commercial
applications in outer space must be said to be
against the interests of at least one country
and, as such, would likely contravene the
Outer Space Treaty.
It is also abundantly clear, however, that the
international community in practice does not
share this view. The deployment of military
satellites for remote sensing, communications
and global positioning systems by some
countries were done without much protest
from the other countries. In any event, even if
it is acknowledged to be in contravention of
the Outer Space Treaty, the absence of any
binding enforcement mechanisms means that
such contraventions would not have much
practical effect.
COMPLIANCE WITH INTERNATIONAL LAW
Article III of the Outer Space Treaty requires
space activities to be conducted in accordance
with other existing legal principles. This is
further reinforced by the Charter of the
United Nations, which provides that any
obligation under the Charter would override
any rights or obligations under any other
treaty.12 This would require the provisions of
the Outer Space Treaty must be read subject to
the terms of the United Nations Charter.
IN THE INTEREST OF MAINTAINING
INTERNATIONAL PEACE AND SECURITY AND
PROMOTING INTERNATIONAL COOPERATION
AND UNDERSTANDING
Article 2(4) of the Charter of the United
Nations provides that countries are to refrain
“from the threat or use of force against the
territorial integrity or political independence
of any [country], or in any other manner
inconsistent with the Purposes of the United
Nations”. This principle has been found by
the International Court of Justice to be
binding on all countries as an international
customary norm.13 This blanket prohibition
on the use of force is not without exceptions.
Under Chapter VII of the Charter, the
Security Council may authorise the use of
force “to maintain or restore international
peace and security” if there is a “threat to the
peace, breach of the peace, or act of aggression”
for which economic and trade sanctions would
be inadequate. Further, Article 51 provides
that there is an inherent right by countries to
use force for individual or collective self-
defence “until the Security Council has taken
measures necessary to maintain international
peace and security”.
As a result, the use of force can be legally
justified under the Charter only where:
(1) it is intended and restricted to
individual or collective self-defence;
(2) it is mandated by a decision of the
Security Council under Article 42 of the
Charter; or
(3) in humanitarian interventions, which is
a somewhat controversial justification
for the use of force.14
Careful analysis of the events since 1945
involving the use of force may well find that
this principle is honoured more in its breach
than its observance. It does not, however, alter
the balance that use of force on Earth is only
permitted in those three situations.
It is clear that humanitarian interventions, as a
unilateral act without reference to the Charter,
cannot attract the application of Article 103.
As a result, the conduct of humanitarian
intervention operations must respect the
limitations imposed by Article IV of the Outer
Space Treaty or, namely, the prohibition on
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weapons of mass destruction and the
demilitarisation of celestial bodies. It is
difficult to see, in any event, how
humanitarian interventions would be affected,
presently or in the future, by the limitations
imposed by Article IV and, for the 12
applicable countries, the prohibitions imposed
by the Moon Agreement.
It must be noted that, except for the use of
military force, the Charter of the United
Nations does not impose any restrictions on
any other military activities. If anything,
Chapters VI and VII of the Charter suggest
that military activities not involving the use of
force in the context of peacekeeping may be
permissible in the interest of maintaining
international peace and security. As a result, it
is conceivable that not only would such
activities be lawful, but they may even be
characterised as being in the interest of
maintaining international peace and security
within the language of the Outer Space Treaty.
Military Use of Commercial Remote
Sensing Applications by Satellite
LAW OF ESPIONAGE AND SURVEILLANCE
It is a generally accepted principle of the Outer
Space Treaty and in customary international
law that spacecrafts flying over a subjacent
country are inviolate and cannot be harmed or
said to be infringing the rights of the subjacent
country.15 Applying this principle to the case
of remote sensing, a sensed country cannot
assert that their rights under international law
have been infringed as a result of the mere
passage of a remote sensing satellite above its
sovereign territories. However, this would fall
far short of allowing such a satellite to
undertake remote sensing activities in a laissez-
faire manner without reference to the sensed
country.
It has been pointed out that most countries
nonetheless consider military reconnaissance
and remote sensing by satellite for military
purposes to be lawful.16 It should be of no
surprise to many that the countries supporting
this view are the countries with the capability
of undertaking military remote sensing
activities. The International Court of Justice
has stated that customary law can be created
purely from the state practice and opinio juris
of only the countries that are concerned with
the customary principle, so the argument can
be made that the concerned countries, namely
the countries with remote sensing capability,
are sufficient in making lawful the military use
of remote sensing technology.17 This view
disregards the fact that, unlike maritime
delimitation or manned space flight, remote
sensing law affects both the sensing and the
sensed countries. In any event, it is significant
to note that the industrialised sensing
countries did not make any strong reservations
against Principle IV when the resolution was
adopted in COPUOS and the General
Assembly.
On the question of whether the military
reconnaissance and espionage activities are
lawful in international law, it is perhaps useful
to consider the position under the
international law for other spatial areas.
Article 1 of the Chicago Convention on
International Civil Aviation, for example,
recognises state sovereignty in the airspace
above a country’s territory.18 Article 36 of the
Chicago Convention provides for each
country to restrict or regulate the carriage of
photographic apparatus on board overflying
aircrafts. As Haeck pointed out, it can be
deduced from the provisions that aerial
espionage by direct overflight is prohibited by
the Chicago Convention, but peripheral
espionage, such as space imagery, is permitted
by international air law.19 Under the law of
the sea, ships have the right of innocent
passage through territorial waters but this does
not provide for reconnaissance and espionage
activities undertaken on board while the ships
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are at sea.20 However, the law of the sea does
not prevent espionage and reconnaissance of
an adjacent country from international waters.
This presents two possible propositions when
considering these legal parallels with military
remote sensing activities. It may be seen from
the principles of air law and maritime law that
reconnaissance and photographic espionage
activities may be undertaken in international
spatial areas but not in areas to which the
sovereignty of the sensed country extends. In
other words, it is permissible to undertake
reconnaissance in the high seas but not in the
territorial waters or the territorial airspace of
the target country. On the other hand, it may
also be argued that the taking of photographic
images for military or strategic purposes along
the periphery of a country’s sovereign territory
may be considered lawful, but it would be a
contravention of law to be taking images
within the territorial waters or by overflight of
the interior of a country’s territory. If the
taking of images of the interior of the territory
of a country is unlawful, then this would
undoubtedly compromise the legitimate rights
and interests of a country for such activities to
take place. The need for consultation and
cooperation with the sensed country and the
positions of some countries that make prior
consent a requirement of lawful remote
sensing would lend support to the proposition
that military remote sensing activities would
be unlawful. It may thus be concluded such
activities would be unlawful, as they would be
regarded as detrimental to the legitimate rights
and interests of the sensed countries.
LAW OF REMOTE SENSING BY SATELLITE
In response to the need for specific legal rules
for remote sensing activities, the General
Assembly of the United Nations adopted the
Principles Relating to Remote Sensing of the
Earth from Outer Space in 1986 (the “Remote
Sensing Principles”) to govern the remote
sensing activities of countries, their nationals
and commercial entities.21 In these Remote
Sensing Principles, “remote sensing” is defined
as activities involving “the sensing of the
Earth’s surface from space by making use of the
properties of electromagnetic waves emitted,
reflected or diffracted by the sensed objects”.22
One major concern relating to remote sensing
is its potentially detrimental effect on the
sovereignty and the interests of the sensed
countries. This is especially the case where the
countries that are subject to the remote sensing
activities of other countries have not consented
to the activities and have not been consulted
prior to the activities taking place. As a result,
the Remote Sensing Principles address remote
sensing as well as the data produced, including
the processing of the “primary data” and the
dissemination of “analysed information”.23 As
with most other international space law
instruments, the Remote Sensing Principles
require countries to “promote international
cooperation” by allowing participation of all
countries on an “equitable and mutually
acceptable terms”. 24 Further, the Remote
Sensing Principles call for the establishment of
international processing facilities for remote
sensing data “within the framework of regional
agreements and arrangements whenever
feasible”.25 The use of vague phrases such as
“whenever feasible” and “mutually acceptable”
have ensured that the terms of the Remote
Sensing Principles would not be specific
enough in its terms to be overly controversial
for the industrialised countries while seeking to
address the real and/or ideological concerns of
the developing countries.26
This is not to suggest that the Remote Sensing
Principles provide no legal obstacles to military
satellite reconnaissance activities. Specifically,
Principle I requires remote sensing activities by
countries to be undertaken to improve natural
resources management, land use and the
protection of the environment. This leaves
open the interpretation that remote sensing
technologies can only be applied for those
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limited purposes, thus prohibiting any military
application as well as other civilian purposes.27
Alternatively, a more creative argument would
be to suggest that remote sensing for other
purposes are not prohibited but that they, in
fact, fall outside the purview of the Remote
Sensing Principles and are therefore governed
by existing principles of international law that
may relate to such activities.28
In terms of international state responsibility
for governmental and private activities,
Principle IV of the Remote Sensing Principles
require activities not to be conducted in a
manner that is detrimental to the legitimate
rights and interests of the sensed country and
with due regard of the rights and interests of
other countries “in accordance with
international law”. In regard to the
dissemination of data, the Remote Sensing
Principles require the distribution of data
should be done on a “non-discriminatory
basis” and any supply of data is to be done on
“reasonable cost terms”.29 Specifically, Principle
XII states:
As soon as the primary data and the
processed data concerning the territory
under its jurisdiction are produced, the
sensed [country] shall have access to
them on a non-discriminatory basis and
on reasonable cost terms. The sensed
[country] shall also have access to the
available analysed information
concerning the territory under its
jurisdiction in the possession of any
[country] participating in remote
sensing activities on the same basis and
terms, taking particularly into account
the needs and interests of the developing
countries.
As Jakhu pointed out, there is no definition
and no indication as to what is reasonable and
what would constitute a non-discriminatory
basis.30 Meanwhile, there is no limitation on
the use of the disseminated data afterwards,
which is arguably the stage at which most harm
can be done to the sensed countries.
The Remote Sensing Principles also require
countries to ensure that remote sensing
activities are conducted in accordance with the
Remote Sensing Principles and that the
operator complies with the “norms of
international law on state responsibility for
remote sensing activities”.31 This is rather
ambiguous since there are, at present, no
norms of international law on state
responsibility for remote sensing activities.
The French text, to which the Russian version
is similar, uses the phrase en ce qui concerne
instead of “for”, inferring that the provision
relates to the applicability of the general
principles of state responsibility to remote
sensing activities.32 As each of the texts is
equally official in status, it is difficult to
determine which interpretation provides the
correct operation and approach of the
provision.
These views have to be balanced with the
specific circumstances in which the Remote
Sensing Principles were adopted, along with
the terms of the Resolution itself. The
resolution was adopted without a vote by the
General Assembly in 1986, as with most other
space law principles. 33 However, some
countries nonetheless expressed serious
reservations at some of the terms and
provisions of the Remote Sensing Principles,
especially on the issue of the need for consent
of the sensed countries.34 The continuing
debate over the meaning of the terms
“discrimination” and the “reasonable basis” for
the supply of data lends further support to the
view that the Remote Sensing Principles, as a
whole, cannot be considered to be evidence of
existing principles of customary international
law.
Although the whole of the Remote Sensing
Principles may not be considered to be the
embodiment of customary international law,
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this does not prevent some of its provisions of
the Remote Sensing Principles, especially
Principle IV, from having crystallised into
custom. In my view, the fact that the
resolution containing the Remote Sensing
Principles was adopted by consensus, with
most of the reservations being made by
countries to advocate a further requirement of
consent to the existing obligation of Principle
IV, suggests that the requirement of not
undertaking remote sensing activities to the
detriment of legitimate rights and interests of
sensed countries is one of virtually universal
support and therefore has crystallised into
customary international law. Similarly, the lack
of express reservations or disputes over the
operation and application of Principle XII may
allow such a principle to be asserted to be a
binding principle of custom as well.
IMPLICATIONS ON MILITARY USE OF REMOTE
SENSING
As discussed above, Article IV of the Outer
Space Treaty poses no obstacles to the use of
remote sensing for military purposes, especially
when the use of satellite remote sensing is done
to further the fulfilment of the requirements of
a Security Council decision under Chapter VII
of the Charter. The crucial factor in practice,
therefore, in the determination of the legality
of the military use of remote sensing is whether
there is a contravention of Principle XII,
assuming it has crystallised into customary law.
In an armed conflict, the sensing country is
highly unlikely to make available any data
collected from the remote sensing operation to
the sensed country on a non-discriminatory
basis and on reasonable cost terms. Therefore,
this produces a prima facie breach of Principle
XII of the Remote Sensing Principles, which
does not provide any exceptions in its
application, unless there is a resolution of the
Security Council authorising the denial of the
remote sensing data to the sensed target
country, even if it was merely through the
reference to the use of “any means necessary”
or phrases with like effect. This is because the
obligations arising under the Charter would
override any obligation imposed in customary
international law.
Military Use of Commercial Satellite
Communications Providers
There are two principal military uses for
commercial satellite communications services.
The first is the use of such services for military
communications. The second is the use of
such services for broadcasting propaganda to
the civilian population of other countries.
MILITARY COMMUNICATIONS
Since the end of the Cold War, military
applications have become increasingly
dependent on commercial satellite
communications providers, especially the
recently corporatised INTELSAT and
INMARSAT.35 It has been said that, as a
result of international treaties and internal
constituent documents, INTELSAT may
provide general services to the military and
INMARSAT may do so for purposes in
relation to distress, safety and humanitarian
purposes.36
In any event, it is difficult to see how such uses
may be lawful and consistent with the terms of
the Outer Space Treaty unless the military
operation in question was one authorised by
the Security Council of the United Nations in
the maintenance or furtherance of
international peace and security. If there is a
Security Council resolution authorising the
operation, then actions taken by countries in
compliance of such a resolution would
override any existing other treaty obligation,
making the said restrictions on the provision
of services by INTELSAT and INMARSAT
to the military somewhat irrelevant.37
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PROPAGANDA ACTIVITIES
There is no doubt that radio and television
have been used as media for the spread of
military or political propaganda, with varying
results. From the efforts of Germany before
and during the Second World War to more
recent examples in the former Yugoslavia,
communications media have been used to
incite or promote internal political change,
civilian discontent, violence or even
genocide.38 The use of mass media to promote
genocide was most notable in the recent case of
Rwanda. The important role of the Hutu-
controlled Radio-Télévision Libre des Milles
Collines (“RTLMC”) in inciting and
organising attacks against the Tutsi people
have been widely noted and cannot be
underestimated.39
On an international level, the use of radio and
television broadcasting media by the United
States against Cuba was officially sanctioned
by the Radio Broadcasting to Cuba Act 1983 to
“provide for the open communication of
information and ideas through the use of radio
broadcasting to Cuba”.40 Subsequently, Radio
Martí and TV Martí were established in
southern Florida and began broadcasting into
Cuba.41 Cuba responded by broadcasting anti-
U.S. programming into Florida and by
jamming the broadcasting signals of Radio
Martí and TV Martí.42
With the active promotion of commercial
satellite radio and television services, it is not
inconceivable that such services may be used
for international propaganda communications
in the future. There is no question that
satellites may be used for radio and television
broadcasting.43 However, there is at present an
absence of any effective regulatory framework
for the regulation of propaganda activities
conducted by satellite.44 In 1982, the United
Nations adopted the Principles Governing the
Use by States of Artificial Earth Satellites for
International Direct Television Broadcasting,
which provides that countries establishing or
authorising the creation of an international
direct television broadcasting service must
notify the receiving countries.45 In any event, a
receiving country has the right to seek
consultations with the country that operates
or authorises the service and the latter is under
an obligation to enter into such
consultations.46 This would suggest that, at
least in the form of television broadcasting, the
broadcasting country would have the duty to
consult with the receiving country.
Civilian and Commercial Use of Military
Global Positioning Systems
The civilian uses of military global positioning
systems have developed exponentially since the
end of the Cold War. The transfer of the
control and operation of the United States
global positioning system (“GPS”) from the
Department of Defence to an interagency
body that includes civilian departments and
agencies reflect the increasing need for civilian
applications of GPS.47
Recent analyses into the legal issues concerning
GPS have focused on liability concerns rather
than the intrinsically military nature of the
application.48 In the latter case, it would
appear that, as with remote sensing and
communications satellites, the legal issues
arising from the military use of such satellite
applications relate not to the application itself
but the purpose of its use. As such, military
uses of GPS would be subject to the terms of
the Charter of the United Nations and the
Outer Space Treaty, although in practice such
concerns have not been addressed to date.
Concluding Observations and Proposed
New International Rules for the Future
It is apparent from the above analysis that the
military uses of dual use or commercial satellite
applications may be in contravention of the
Outer Space Treaty. However, it is equally
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apparent that the international community
does not consider such military activities to be
in breach of international law or, more likely,
the absence of internationally binding
enforcement mechanisms for the terms of the
Outer Space Treaty means that it is difficult
for deter such practices.
In terms of solutions that may be adopted by
the international community going forward, it
is highly unlikely that countries would now
adopt enforcement mechanisms to add force
and effect to the restrictions of the Outer
Space Treaty. This is because countries that
are engaged presently or in the near future in
the use of commercial satellite applications
will, of course, refuse to agree to the
establishment of such mechanisms.
Consequently, it will be more effective for the
international community to establish
technology-neutral rules as to what military
uses of commercial or civilian applications
would be considered to be permitted purposes,
such as those involving self defence, pursuant
to mandates of the Security Council,
peacekeeping and peace enforcement
operations and international humanitarian
interventions. Such an approach would allow
some clarity in what would be acceptable and
unacceptable conduct to the international
community to prevent the further
militarisation of outer space.
Notes
* School of Law, Flinders University of South Australia;
Managing Director, Activer Consulting Pty Ltd; and
Principal, R icky Lee & Associates, Australia. Member
of the International Institute of Space Law and the
space law committees of the International Bar
Association and the International Law Association.
All views and opinions expressed or implied in this
paper are personal to the author only and may not
necessarily reflect those of any organisation with which
the author is associated.
1 Outer Space Treaty, Article I.
2 Ibid.
3 Ibid., Article III.
4 Ibid., Article IV.
5 Gorove, Implications of International Space Law for
Private Enterprise (1982) 7 ANNALS AIR & SP. L. 319
at 321.
6 Gorove, Freedom of Exploration and Use in the Outer
Space Treaty (1971) 1 DENVER J. INT’L. L. & POL’Y.
93.
7 See, for example, Williams, Las empresas privadas en el
espacio ultraterrestre (1983) 8 REVISTA DEL CENTRO
DE INVESTIGACIÓ N Y DIFUSIÓN AERONÁUTICO-
ESPACIAL at 39; and Castillo Argañarás, Benefits
Arising From Space Activities and the Needs of
Developing Countries (2000) 43 PROC. COLL. L.
OUTER SP. 50 at 57.
8 He, The Outer Space Treaty in Perspective (1997) 25 J.
SPACE L. 93 at 104.
9 Gorove, supra note 5, at 321.
10 Such a distinction was made by Kerrest in the context
of Article VI of the Outer Space Treaty. See Kerrest,
Commercial Use of Space, including Launching (2004),
in China Institute of Space Law, 2004 SPACE LAW
CONFERENCE: PAPER ASSEMBLE 199 at 200.
11 Monserrat Filho, Why and How to Define “Global
Public Interest” (2000) 43 PROC. COLL. L. OUTER SP.
22 at 24. Italics added.
12 Charter of the United Nations, Article 103.
13 Case Concerning Military and Paramilitary Activities
in and against Nicaragua (Merits) [1986] I.C.J. Rep.
14.
14 Ibid. See also Simma, NATO, the UN and the Use of
Force: Legal Aspects (1999) 10 EUR. J. INT’L. L. 1;
Cassese, Ex iniuria ius oritur: Are We Moving towards
International Legitimisation of Forcible Humanitarian
Countermeasures in the World Community (1999) 10
EUR. J. INT’L. L. 23; and Reisman, Unilateral Action
and the Transformations of the World Constitutive
Process: The Special Problem of Humanitarian
Intervention (2000) 11 EUR. J. INT’L. L. 3.
15 Unless, of course, that the satellite is in fact interfering
with a legitimate right of the subjacent State or that,
by being there, the satellite has contravened a duty
under international law, such as the obligation of
non-interference of radio signals under Article 44 of
the Constitution and Convention of the
International Telecommunications Union.
16 Ramey, Armed Conflict on the Final Frontier: The Law
of War in Space (2000) 49 AIR FORCE L. REV. 1;
Morgan, Military Use of Commercial Satellites (1994)
60 J. AIR L. & COM. 237 at 317; and Vlasic, The Legal
Aspects of Peaceful and Non-Peaceful Uses of Outer
Space, in Jasani (ed.), PEACEFUL AND NON-
- 10 -
PEACEFUL USES OF SPACE: PROBLEMS OF
DEFINITION FOR THE PREVENTION OF A N ARMS
RACE (1991), p. 45 at p. 50.
17 North Sea Continental Shelf Cases (Germany v.
Denmark; Germany v. The Netherlands) [1969] I.C.J.
Rep. 3.
18 (1944) 15 U.N.T.S. 295 (the “Chicago Convention”).
19 Haeck, Aspects Juridiques de Certaines Utilisations
Militaires de L’espace (1996) 21:1 AN. AIR & SPACE L.
65 at 100.
20 United Nations Convention on the Law of the Sea
(1982) 21 I.L.M. 1261, Articles 17 and 19.
21 See Christol, Remote Sensing and International Space
Law, 16 J. SPACE L. 21, (1988).
22 Remote Sensing Principles, passim.
23 Ibid., Principle XII.
24 Ibid., Principle V.
25 Ibid., Principle VII.
26 See Gorove, DEVELOPMENTS IN SPACE LAW: ISSUES
AND POLICIES 293-302 (G.C.M. Reijnen, ed., 1991).
27 Lee, Reconciling Space Law for the Commercial
Realities of the Twenty-First Century, 4 SINGAPORE J.
OF INT’L. & COMP. L. 198, 216 (2000).
28 See Jakhu, International Policy and Law-Making
Process for Remote Sensing by Satellite (1997) 22:1
ANN. AIR & SPACE L. 451 at 452.
29 Remote Sensing Principles, Principle XII.
30 Jakhu, supra note 28, at 452.
31 Remote Sensing Principles, Principle XIV.
32 See Kopal, Principles Relating to Remote Sensing of the
Earth From Outer Space: A Significant Outcome of
International Cooperation in the Progressive
Development of Space Law (1987) 30 PROC. COLL. L.
OUTER SPACE 322.
33 RESOLUTIONS ADOPTED BY THE GENERAL
ASSEMBLY AT ITS 41ST SESSION, United Nations Dag
Hammarskjöld Library, at
http://www.un.org/Depts/dhl/res/resa41.htm (last
visited on July 21, 2003).
34 Even though formal consensus was reached, the
speeches from various delegations at the final
negotiations indicated that serious differences of
opinion remained in the States’ approaches to the
issue. U.N.Doc. A/AC.105/SR.290 (1986);
Venezuela (1986) U.N.Doc. A/SPC.41/SR.37 (1986)
at 14; Turkey (1986) U.N.Doc. A/SPC.41/SR.38;
and Algeria at 7.
35 Black, Commercial Satellites: Future Threats or Allies?
(1999) 52 NAV AL WAR COLL. REV. 1.
36 See Morgan, Military Use of Commercial
Communication Satellites: A New Look at the Outer
Space Treaty and “Peaceful Purposes” (1994) 60 J. AIR
L. & COM. 237 at 319-321.
37 Charter of the United Nations, Article 103.
38 See, for example, Herzstein, THE WAR THAT HITLER
WON: THE MOST INFAMOUS PROPAGANDA
CAMPAIGN IN HISTORY (1978); and Hampson,
Incitement and the Media: Responsibility of and for the
Media in the Conflicts of the Former Yugoslavia,
Human Rights Centre (ed.), PAPERS IN THE THEORY
AND PRACTICE OF HUMAN RIGHTS (1993).
39 See discussion in Prunier, THE RWANDA CRISIS:
HISTORY OF A GENOCIDE (1995) AT 188-190; and
Kircher, BROADCASTING GENOCIDE: CENSORSHIP,
PROPAGAND A AND STATE SPONSORED GENOCIDE
IN RWANDA 1990-1994 (1996) at 40-41.
40 (2000) 22 U.S.C. § 1465.
41 See, for example, Salinas, Radio Martí: Meeting the
Need for Uncensored Information in Cuba (1987) 19
N.Y.U. J. INT’L. L. & POL. 433.
42 Ibid., at 447-450.
43 See, for example, Bayer, The Legal Aspects of TV Martí
in Relation to the Law of Direct Broadcasting Satellites
(1992) 41 EMORY L. J. 541; and Gorove, International
Direct Television Broadcasting by Satellite: “Prior
Consent” Revisited (1985) 24 COLUM. J. TRANS. L. 1.
44 See, for example, Nuttall, Defining International
Satellite Communications as Weapons of Mass
Destruction: The First Step in a Compromise between
National Sovereignty and the Free Flow of Ideas (2005)
27:2 HOUSTON J. INT’L. L. 389.
45 Principles Governing the Use by States of Artificial
Earth Satellites for International Direct Television
Broadcasting (hereafter the “Broadcasting
Principles”), Principle 13.
46 Ibid., Principles 10 and 13.
47 Waldrop, Integration of Military and Civilian Space
Assets: Legal and National Security Implications
(2004) 55 A. F. L. REV. 157.
48 See, for example, ibid.