Defining international satellite communications as weapons of mass destruction: the first step in a compromise between national sovereignty and the free flow of ideas.

• Author: Nuttall, Colby C.

1. INTRODUCTION II. INTERNATIONAL LAW GOVERNS TELECOMMUNICATIONS SATELLITES BUT FALLS SHORT OF PROVIDING A COMPREHENSIVE REGULATORY SCHEME A. Corpus Juris Spatialis Provides Universally Acceptable Authority for Regulating Violent Propaganda B. Various Other Sources of International Law are Contradictory but are Beginning to Compromise III. MODERN REGULATION AND REGULATORY PROPOSALS FAIL TO BALANCE THE EXPECTATIONS OF ALL INTERESTS A. Increasing Destruction to Social, Cultural, and Economic Norms Require Regulation over the Content of International Communications B. Only Self-Help Remedies are Available Because The Modern Regulation System is Ambiguous and Unenforceable C. Proposals for Regulation Reform Have Lacked Efficiency and Improperly Favored Either National Sovereignty or Freedom of Expression IV. BY EXAMINING RESULTS FROM THE PAST WE SEE MORE CLEARLY THE PRESENT NEED FOR REGULATION A. Rwandan Genocide Facilitated by Radio-Television Libre des Milles Collines B. Cuban Interference with US Economic Interests by Self-Help Jamming of TV and Radio Marti V. A SOLUTION CAN BE FOUND THAT BALANCES EXPRESSION AND SOVEREIGNTY VI. CONCLUSION You Americans complain about drug traffickers in Asia, and meanwhile you flood the world with the electronic equivalent. Our children know the names of your rappers and movie stars, and nothing about the heroes of their own people. Maybe they know who Stephen King is, but they don't know who our King Stephen was--the founder of our nation.... It's an invisible conquest, with satellites and broadcast transmitters instead of artillery. (1)

1. INTRODUCTION

   As the technological developments of the information age continue to expand at an increasingly rapid rate, there is little doubt that domestic and international use of satellite technology will continue to play an increasingly larger role in the world's affairs. Even now, the space and satellite industry occupies a significant portion of the economy of the United States and other developed nations around the globe. (2) In 1999, the commercial space industry generated $61.3 billion in the United States economy, with just over ninety-two percent, or $56.7 billion being accounted for by the satellite industry. (3) And, while it appears that the United States populace had been gradually losing interest in the activities of space, it looks as though the curiosity and interest surrounding space are due for a resurgence. The recent scientific and technological triumph of placing the Spirit and Opportunity rovers on Mars, coupled with President George W. Bush's new vision for the space program, create just the atmosphere to foster a renewed spirit. (4) The economic, social, and political effects are sure to follow.

   Numerous events of profound historical significance have occurred since the beginning of the new millennium, but do these events have any significance in relation to past, present, or future endeavors in space? Although it may be counterintuitive, the question should be answered in the affirmative. The relevance is, perhaps, most clear when violent acts are considered. Violent events, such as those typified by the creation of mass gravesites in New York City and Washington, D.C. on September 11, 2001, the overthrow of Saddam Hussein's regime in Iraq, and the suicide bombings in Israel and the Middle East with the accompanying retaliatory strikes directed toward Palestine, (5) have not only shaped the world in which we currently live, but also the history for future civilization. Collectively, these events define a generation in a way that matches historical events of the past defined other generations--events such as the bombing of Pearl Harbor in December 1941, (6) the assassination of John F. Kennedy in November 1964, (7) and the Challenger disaster in January 1986. (8)

   Drawing from these recent historical events and the momentum surrounding the rekindled interest in space (and as a way of putting this Comment in context), this Comment studies the interplay that exists between international telecommunications satellite systems and the causes of generation-defining events throughout the world. Specifically, this Comment examines: (1) the current status of international law; (2) the marginal role that international law currently plays in harnessing the power of international communications; (3) proposed regulatory schemes to protect national interests and sovereignty; (4) the devastation to political, cultural, economic, and social stability that will continue to result in calamitous events as long as this modern technology goes unchecked and under-regulated; (5) past failures of the modern regulatory scheme in the context of historical case studies; and (6) an alternative solution and a recommendation for international action that will begin to regulate the content of international satellite communications.

   Emphasizing the entire body of international law that may provide for the regulation of trans-border transmission of satellite signals, Section II reveals that any attempt to understand international regulation of telecommunications systems results in ambiguity. Section III examines the regulatory schemes that are currently employed to protect a sovereign's own interests and an alternative international regulatory structure proposed at the 2003 World Summit on the Information Society.

   To highlight the deficiencies of these regulatory systems, Section IV introduces two case studies that highlight the harmful and destructive consequences that are potential results from unregulated or under-regulated trans-border communications. Based on the problems of present regulatory schemes described in Section III, and the potential harmful consequences highlighted in Section IV, Section V proposes an alternative regulatory system, providing for the United Nations and the International Telecommunications Union (ITU) to have expanded roles in the non-exclusive regulation over the content of trans-border communications. In essence, the solution lies in realizing that the ITU must be able to act with efficacy to immediate and violent threats, while also balancing the too heavy a burden that would be placed on the ITU if it were required to continuously monitor mass-communication signals. Section VI provides a summary of the article, and concludes with the recommendation that the ITU be granted decisionmaking power to react to imminent threats of lawless action, and to initiate judicial process where international propaganda presents threats that are less imminent.

2. INTERNATIONAL LAW GOVERNS TELECOMMUNICATIONS SATELLITES BUT FALLS SHORT OF PROVIDING A COMPREHENSIVE REGULATORY SCHEME

   The regulation of satellites essentially began with the launch of the Soviet Sputnik I satellite in 1957. (9) Sputnik marked the basic entry into space, and was the catalyst that initiated the development of the Law of Outer Space, or corpus juris spatialis. (10) As coincides with the development of most new areas of law, the law that now governs space and satellite technology evolved into complementary sets of both substantive and procedural law--the substantive law to create rights and duties, and the procedural law to enforce or regulate those rights. (11) Paired with the need for basic substantive and procedural rules to guide the international community, the United Nations General Assembly specifically recognized the international challenges that space exploration could present and in 1958 created an ad hoc committee to specifically address these challenges. (12) The Committee on the Peaceful Uses of Outer Space (COPUOS) was formed and began focusing on developing workable international standards, policy, and law that takes into account these new and developing challenges and their potential threat to international peace. (13) The following year, with the ever-increasing attention being paid to space by the United States and the Soviet Union, (14) the United Nations formalized COPUOS as a permanent body. (15)

   Soon thereafter, COPUOS developed a series of principles, treaties, and conventions that were subsequently adopted by the General Assembly. (16) Among the most influential of the early declarations of principles related to outer space law was the 1963 Declaration on Outer Space Exploration. (17) The Declaration on Outer Space Exploration influenced the formation of and provided the foundation to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (Outer Space Treaty).18 In 1967, the United Nations

   General Assembly adopted the Outer Space Treaty by consensus. (19) As a supplement to the other purposes and provisions of the treaty, (20) the Outer Space Treaty specifically recognized the "common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes." (21)

   Of the declarations of principles proposed by COPUOS and adopted by the United Nations, the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (22) (Principles on TV Broadcasting) provides the most focused look at the potential influence the United Nations expected satellite broadcasts to exert across international boundaries. (23) Under the Principles on TV Broadcasting, international direct television broadcasts are specifically to be conducted under the international law as set forth by the UN Charter and the Outer Space Treaty. (24) Additionally, the Principles on TV Broadcasting also promotes the free exchange of cultural and scientific knowledge among countries, with special regard to the needs of developing countries, but also seeks to combat transmissions that do not give due respect to the political and cultural integrity of the nations. (25) Further considerations of the declaration are that the party nations be governed by principles of non-intervention to develop the strong interest that all nations...