International Satellite Communications and the Law
by Stephen E. Doyle *
In today’s world wealth begets wealth, competence earns enrich-
ment, diligent labor produces reward, and grace is well praised.
An essential corollary of such a system is that the impoverished,
unskilled, indolent and awkward most often comprise by default the
lowest levels of society. A fundamental question in man’s relationship
with man is whether or not there exists a duty upon the endowed,
the talented, the swift and assured, to maintain the poor, the un-
educated, the slow and incompetent.
Is there a natural duty imposed upon the have’s to support and
sustain the have-not’s ? The extent to which the reader’s reply to
this question is affirmative or negative, and offered as a morally,
socially, economically or politically arguable conclusicn, dictates the
degree to which he will respond to the current commentary and
opinion with regard to the emergence of a method of international
control for satellite communications.
It is essential to acknowledge initially that no discussion of law
is divorceable from consideration of the elemental components of
law. Law, as ideas expressed, must be a synthesis of the best avail-
able moral, social, economic, political and scientific conclusions of
relevance, otherwise it is not good law and can not endure. Law
which does endure serves the function of ordering our societies and
contributes to the maintenance of peace in our community.
Thc community of man today encompasses a wide range of con-
ditions and many types of societies. In our world community the
elullient and wealthy are often close neighbor- to the despondent
and hungry. It is not surprising to find, ironically existing in such
a community, despicable squalor and depravation in proximity to
multi-million dollar machines designed to analyse and report current
economic trends. Research in the physical sciences produces new
but to what end ? Beneficial application of technol-
marvels daily –
ogical achievement for the common good requires the continual
maintenance of an ordered society; otherwise the technology becomes
science for war.
Among the most challenging, most exciting and most demanding
current programs of scientific research, in those societies with the
* Member of the Bar, Washington, D.C.; Member, Institute of Air and Space
Law, McGill University.
McGILL LAW7 JOURNAL
[-V ol. 11
prerequisite technological competence, investigation of the nature and
potential utilization of outer space and man-made systems located
there is undeniably dominant. Immeasurable quantities of natural
and human resources are being consumed in the development of
man’s capacity to traverse and exploit the regions beyond the earth.
The most immediately promising program emerging from the space
effort is the developing program for a global satellite communications
system. Planners claim that this program will ultimately provide a
world-wide network of instantaneous audio, visual and data trans-
mission facilities.
During late 1963 and throughout the spring of 1964, the United
States of America pursued a series of difficult and delicate negotia-
tions with a number of nations.’ The negotiations were in preparation
for an international Conference convened July 21, 1964, in Washing-
ton, D.C. 2 At that Conference two agreements were finalized; the
first, an agreement among governments,3 provides for establishment
of an international consortium to organize, establish, operate and
maintain an international satellite communications system; the second
agreement, a pact among communication ministries and private com-
panies,4 establishes the scheme of financial commitments of partic-
ipants, and provides details of system management responsibilities
and contract procurement.
Thus, in addition to substantial technological advancement toward
the achievement of satellite communications during 1964,5 a new form
‘ See U.S. Department of State Press Release 328, July 17, 1964; 51 U.S. Dept.
of State Bull. 167 (August 3, 1964); also Haley, Report by the Chairman of
Working Group VII, International Institute cf Space Law of the International
Astronautical Federation, presented at the VIIth Colloquium on the Law of
Outer Space, Warsaw, September 1964, to be published in the proceedings.
2 Plenipotentiary Conference to Establish lILterim Arrangements for a Global
Communications Satellite System, Washington, D.C., July 21-24, 1964. The Final
List of Participants included delegates from Australia, Austria, Belgium, Canada,
Denmark, France, Germany, Ireland, Italy, Japan, Netherlands, Norway, Spain,
Sweden, Switzerland, United Kingdom and United States. See Conference Doe.
11, July 23, 1964.
3 Agreement Establishing Interim Arrangements for a Global Commercial
Communications Satellite System, opened for signature at Washington, D.C.,
August 20, 1964. Conference Doc. 14, July 24, 1964. Text published at 30 J. Air
L. & Comm. 264 (1964); 51 U.S. Dept. of State Bull. 282 (August 24, 1964).
4 Special Agreement, opened for signature at Washington, D.C., August 20,
1964. Conference Doc. 15, July 24, 1964. Text published at 30 J. Air L. &
Comm. 270 (1964); 51 U.S. Dept. of State Bull. 286 (1964).
5 See, e.g. NASA Press Releases No. 64-195, August 9, 1964 and No. 64-204,
August 14, 1964, and discussion of their significance in Haley Report, op. cit.
supra, note 1.
No. 2] INTERNATIONAL SATELLITE COMMUNICATIONS 139
of international cooperative program for space was developed. The
appropriateness and legality of that program has already been chal-
lenged.
“True, it is hard to tell from the text of these agreements what is in
question; a new international organization, a joint-stock company with the
participation of foreign capital or an unusual hybrid of the two.” 0
“within the problem of nation-to-nation cooperation, there is the subordinate
question which is peculiar to the United States, the “private-public agency”
debate as to whether the agencies which express a nation’s activity in space
may be privately owned …
I hope subsequent papers will look realistically at that problem and
ask whether the communications satellite system does not, by the very nature
in the
of its expression of a particular American ideological position,
attempt to mix the private and public sectors of this activity, unduly raise
certain questions in the international forum which ought not to be there.
Had there been a more realistic appraisal of the international significance
of mechanisms of this kind, which are going to be utilized by many states,
perhaps the notion of emphasizing the private corporate side might have
taken a subordinate place in American thinling.” (pp. 53-54)
Consideration of Cohen’s suggestion is found at length in a special study
done at the Rand Corporation in California : Schwartz & Goldsen, Foreign
Participation in Communications Satellite Systems: Implications of the Com-
munications Satellite Act of 1962, Memo. RIv. 3484-RC, February 1963.
The dominant participant during the long negotiations, and at
the July 1964 Conference, was the United States’ Communications
Satellite Corporation (Comsat). In order to appreciate the nature
of the international consortium created at the July Conference, it
is useful to have some knowledge of the general nature and history
of Comsat.
The United States’ Communications Saiellite Act of 1962 became
law on August 31 of that year.7 It is an Act “to provide for the
establishment, ownership, operation and regulation of a commercial
communications satellite system, and for other purposes.” S In an
accompanying Report,’ the late Senator R’bert S. Kerr, then Chair-
man of the U.S. Senate Committee on Aeronautical and Space
Sciences, declared that among the stated policies of the United States,
as set forth in the Act :
6 Cheprov, Global or American Space Communications System ?, International
Affairs, no. 12 (December 1964 Moscow) p. 69. See also comments and discussion
at the Conference on the Law of Space and of Satellite Communications, May
1963, Chicago, where Maxwell Cohen noted that
7 Public Law 87-624; 76 Stat. 419 (August 31, 1962). The Act is discussed
in detail in Haley, Space Law anzd Governmient ch. 7 (New York, 1963) and
the text of the act is included as an appendix at pp. 485-93.
8 See the preamble of the Act, op. cit. supra, note 7.
o Kerr, Commuinications Satellite Act of 1962, S. Rep. No. 1319, 87th Cong..
2d Sess. (April 2, 1962).
McGILL LAW JOURNAL
r7oi. 11
“… it is the purpose of the United States to establish, in C’njunction
and in cooperation with other countries, as expeditiously as practicable, a
commercial communications satellite system, as part of an improved global
communications network, which will be responsible to public needs and
national objectives, which will serve the communication needs of the United
States and of other countries, and which will contribute to world peace and
understanding.” [emphasis added] 10
From the outset of the planning for spearheading development of
an international communications system employing satellites, it was
the natural expectation of many that U.S. participation in such a
system would be in the form of a private corporation.11 This expect-
ation was consistent with the well-established practices of free en-
terprise and open competition which have long characterized the
American economic system.
The U.S. Congress sought to insure that any services offered
by the proposed Corporation, would be made available equally to
underdeveloped and developed areas ;12 in addition, it was desired
to assure that the ekctro-magnetic frequency spectrum would be
efficiently and economically used, and that any technological ad-
vances could be applied to improve quality and reduce costs of service
in the new system. The Satellite Communications Act of 1962 ex-
pressly provides that maximum competition in provision of services
and equipment to the system, as well as non-discriminatory access
to the system shall be maintained.13
In order to accomplish all these objectives, it was concluded that
a private corporation should be created, and that adequate govern-
mental controls should be provided to insure that the new corporation
(Comsat) would do all things necessary for the achievement of the
goals stated in the Act.14
While it is clear from the Act, and from Senator Kerr’s Report,
that the Comsat group is not necessarily considered the global net-
work, but only “as part of an improved global communications net-
work;” 15 it is equally clear that in the Comsat group, the U.S.
Corporation is to have the dominant voice. Under provisions of the
July agreements, Comsat is represented by sixty-one (61) percent
of the total vote on the Committee established to control the con-
lo Ibid, p. 3.
11 See as examples, sources cited at note 6, supra.
12 Public Law 87-624; 76 Stat. 419 (August 31, 1962), s. 102 (c).
13 Ibid. See discussion in Haley Report, op. cit. supra, note 1 and contrary
views in Cheprov, Global or American Space Communications System ?, op. cit.
supra, note 6.
14 See extended discussion in Schwartz and Goldsen, op. cit. supra, note 6;
and Senator Kerr’s Report, op. cit. supra, note 9.
15 See text accompanying note 10, supra.
No. 2] INTERNATIONAL SATELLITE COMMUNICATIONS 141
sortium. Each participating nation is given a share in the voice of
control commensurate with its anticipated financial contribution to
the cost of establishing and maintaining the system. The contributions
are in turn dependent upon the anticipated extent of utilization of
the systems traffic by each nation. 6
A significant aspect of the July agreements is their transient
nature. Throughout the texts of both agreements one can find fre-
quent reference to “interim” arrangements. Article IX of the inter-
governmental agreement specifically requires that the consortium
Committee shall render a report to each party to the agreement, in
which report the Committee is to recommend definitive arrangements
for an international global system to supersede the interim arrange-
ments contained in the existing agreements. The report is to be
rendered within one year after the initial system becomes operational,
but in no case later than January 1, 1969.117 An international confer-
ence is to be convened by the Government of the United States of
America within three months following the submission of the report.
“The Parties to this Agreement shall seek to insure that the defin-
itive arrangements will be established at the earliest practicable
date, with a view to their entry into force by 1st January 1970.” 18
Having provided for the establishment of the Communications
Satellite Corporation, and having achieved a position of control in
an international organization created to implement a satellite com-
munication system as part of a global communication network, the
American people have assumed the initiative with regard to the
vital field of world communications. Can a system tantamount to
unilateral control of a substantial portion of future world commu-
nication systems be tolerated ?
In a carefully concocted but conspicuously undocumented attack
on Comsat and the consortium, I. Cheprov, a prominent Russian
commentator on matters of international law, claims that the nego-
tiations leading to the July agreements, and the agreements them-
selves, constitute “a vital and alarming fact : encroachment by U.S.
monopoly capital on the interests of mankind in the exploration and
use of outer space, specifically by setting up a global communications
satellite system.” 19 Cheprov asserts that:
“The U.S. monopolies and their servants used trickery with two agree-
and several other artful steps
intergovernmental and special –
ments –
16 See Special Agreement, Arts. 3, 4 and 5. Sources supra, note 4.
17 See Agreement Establishing Interim Arrangements for a Global Commercial
Communications Satellite System, Art. IX. Sources supra, note 3.
18 Ibid.
19 Cheprov, Global or American Space Communications System ?, International
Affairs, No. 12 (December 1964 Moscow) p. 69.
142
McGILL LAW JOURNAL
[Vol. 11.
recently undertaken, for the purpose of disguising the schemes of American
Big Business and presenting them as idyllic cooperation of nations in the
exploration and use of outer space for the good of mankind.” 20
In addition, Cheprov claims, “Comsat has a decisive voice in the
space communications system; Comsat is dominated by A.T.&T., and
A.T.&T., in turn, is dominated by the biggets U.S. monopolists.” 21
In summary, these allegations are:
(1) U.S. monopoly capital is encroaching on the interests of mankind
by setting up an international satellite communications system.
(2) U.S. monopolies and their servants [government] used trickery
in negotiating the July agreements.
(3) U.S. monopolists control the newly formed consortium.
It is perhaps no mere oversight on the part of the author of these
allegations that no substantiating facts are offered to support his
contentions. These charges are not charges of illegal activity, they are
made merely to obviate the possibility that the American people could
be acting in this regard in the best interest of mankind. The charges
laid do give rise to several questions:
(1) How is the establishment of a communications service by nine-
teen 22 nations acting jointly in their common interest through an
organization open for participation to any nation desiring to par-
ticipate,23 an encroachment upon the rights of mankind?
(2) What was the nature of the alleged trickery involved in negotia-
tions related to the July agreements?
(3) How do U.S. monopolists control the consortium? 24
Since neither the allegations nor the questioning replies can give rise
to serious legal discussion, it is not intended to join the issues on
their merits here. It will suffice to point out here that although there
are impliedly included in these claims serious questions of law, Chep-
20 Ibid.
21 Ibid, at p. 72.
22 On January 15, 1965, participants
(with dates of signature)
included:
Australia, August 20, 1964; Belgium, September 29, 1964; Canada, August 20,
1964; Denmark, August 20, 1964; France, August 20, 1964; Germany, September
21, 1964; Ireland, October 5, 1964; Israel, November 30, 1964; Italy, August 20,
1964; Japan, August 20, 1964; Netherlands, August 20, 1964; Norway, August
31, 1964; Portugal, October 29, 1964; Spain, August 20, 1964; Sweden, September
28, 1964; Switzerland, September 16, 1964; United Kingdom, August 20, 1964;
United States, August 20, 1964; Vatican City, August 20, 1964.
23 Subject to prerequisite membership in the International Telecommunications
Union.
op. cit., supra, note 6.
24 This arguement was discussed well in advance by Schwartz and Goldsen,
No. 2] INTERNATIONAL SATELLITE COMMUNICATIONS 143
rov has carefully avoided statements to the effect that any law has
been violated. However, he does not stop after these claims.
Cheprov argues further that the U.S. Federal Communications
Commission, as the lackey of the monopolists in the United States,
is the tool employed by Big Business for manipulating Comsat. This
claim unrealistically flies in the face of thirty or more years experien-
ce in hotly and openly contested American governmental regulation
of the American communications industry. The Federal Communica-
tions Commission, and its predecessor the Federal Radio Commission,
have maintained a continual regulatory hand over the activities of
American carriers since the 1920’s. To equate industry regulation by
an administrative agency with industry control by monopolists, is to
argue for integration of two elements in the American regulatory
system which are inimicable by their fundamental nature.
Allowing the argument that Big Business, acting through govern-
ment, could control Comsat is to ignore the fact of the existence of
the Comsat Board of Directors. This fifteen-member board is com-
prised of (a) three Directors appointed for three year terms by the
President of the United States; (b) six Directors elected annually by
the one hundred and thirty thousand (130,000) public shareholders of
the Corporation, who own one half of the Corporation’s outstanding
stock; and (c) six Directors elected annually by approximately one
hundred and sixty communications business enterprises, which own
the second half of the outstanding stock. Assuming that Comsat’s
Board of Directors has some influence in the operation and control of
the Corporation, it is arguable that at least these fifteen Americans
will have influence on the nature of the emerging system.
Comsat is not the sole participant in the consortium.2 5 The addi-
tional nations participating in the consortium Committee represent,
along with the United States of America, more than eighty (80)
percent of the world’s international communications traffic.2 6 The
participation of all members of the Committee in each phase of the
plainning, procurement and operation of the system has been assured
under the terms of the agreements. Since the participation of East
European nations has been lacking to date, it is not unreasonable to
expect that a second international system for satellite communications
may emerge from that area. This is a possibility which has already
been considered and discussed by stockholders and officers of the
American Corporation. 27 If such a system does emerge, and if it is
25 See note 22, supra.
26 Report on the First Annual Meeting of Shareholders and Recent Develop-
ments, Communications Satellite Corporation 4 (Washington, December 1964).
27 Ibid at p. 12.
McGILL LAW JOURNAL
[Vol. lii
an economically competitive system, all nations will benefit from the
maintenance of costs at a low and competitive level. In the absence of
a competitive system, the Committee of the consortium will be requir-
ed to make necessary provisions to assure that rates are kept at a
reasonable minimum, so that all nations can be guaranteed access to
the system.
The problem of rates may be temporarily avoidable until an actual
operational system is established. Eventually, rate-making will emerge
as a major problem for the consortium and its committee. With regard
to international rates, it seems obvious that some external body or
agency, capable of some measure of objectivity, and possessed of ne-
cessary expertise should participate. The ITU seems a likely prime
candidate for an influential post in matters of determining just and
equitable rates for international service.
One of the most essential regulatory aspects of the operation of
the consortium is the existence of the International Telecommunica-
tion Union (ITU). This international organization, a specialized
agency of the United Nations, is the primary international communi-
cations regulatory body. It, too, is concerned with the efficient and
economical use of the electro-magnetic spectrum, and plays an impor-
tant role in the determination of radio frequency utilization by the
nations of the world.28
Despite the fact that the ITU has a history of one hundred years
as an international regulatory body, that Union, and the much
more recently created United Nations Committee on Peaceful Uses of
Outer Space (UNCOPUOS), have become equally important focal
points of international interest due to the developments in space since
October 4, 1957. With regard to the role and significance of the ITU
and UNCOPUOS in connection with the development of Comsat and
the international consortium, I. Cheprov has again spoken out in
dissatisfaction. According to Cheprov it is no mere accident:
11… that the agreements make no mention of the General Assembly
Declaration of Basic Principles Governing the Activities of States in the
Exploration and Use of Outer Space. What these agreements envisage is
incompatible with the provisions of this important international document
which demands that the exploration and use of outer space be effected
on the basis of equality of states.” 29
These points should be clarified in so far as no resolution of the Gen-
eral Assembly regarding activities in outer space demands anything;
further, Assembly Resolution 1962 (XVIII) of December 1963, does
28 A comprehensive and detailed study of the ITU, its purposes, structure,
role and functions, is set out in Haley, Space Law and Government ch. 7 (New
York, 1963).
29 Cheprov, op. cit. supra, note 19 at 74.
No. 2] INTERNATIOYAL SATELLITE COMMUNICATIONS 145
not mention international communications anywhere in its text,
although the well-known Resolution 1721 (XVI) of December 1961
treats satellite communications at length; and finally, no provision of
the agreements can be found which is inconsistent with any provision
of the Assembly Resolution 1962 (XVIII) referred to by Cheprov.
The Preamble to the Agreement Establishing Interim Arrangements
for a Global Commercial Communications Satellite System reads:
The Governments signatory to this Agreement,
Recalling the principle set forth in Resolution No. 1721 (XVI) of the
General Assembly of the United Nations that communications by means of
satellites should be available to the nations of the world as soon as practicable
on a global and non-discriminatory basis;
Desiring to establish a single global commercial communications satellite
system as part of an improved global communications network which will
provide expanded telecommunications services to all areas of the world and
which will contribute to world peace and understanding;
Determined, to this end, to provide, through the most advanced technology
available, for the benefit of all nations of the world, the most efficient and
economical service possible consistent with the best and most equitable use
of the radio spectrum;
Believing that satellite communications should be organized in such a
way as to permit all States to have access to the global system and those
States so wishing to invest in the system with consequent participation in
the design, development, construction (including the provision of equipment),
establishment, maintenance, operation and ownership of the system;
Believing that it is desirable to conclude interim arrangements providing
for the establishment of a single global commercial communications satellite
system at the earliest practicable date, pending the working out of definitive
arrangements for the organization of such a system;
Agree as follows:
It is certainly true that this preamble has failed to mention General
Assembly Resolution 1962 (XVIII), just as it failed to mention
countless other Assembly Resolutions which, like Resolution 1962
(XVIII), contain no reference to principles applicable to satellite
communications. But the agreement does contain reference to, and
in fact borrows language from, the most recent Assembly Resolution
containing declared principles applicable to space communications.
Such provocative doubletalk with regard to U.N. General Assembly
Resolutions is not likely to encourage international understanding.
In concluding his remarks, Cheprov observes that:
“The much-promising declaration of U.S. statesmen on international
cooperation in space communication will remain so many words as long
as the monopolies run the show. The first provision for a change for the
better is to transfer the entire range of questions pertaining to space
communication to the corresponding organizations. There is no need to
create such organizations, for they have existed for a long time: first and
McGILL LAW JOURNAL
[Vol. 11”
foremost the U.N. Committee on the Peaceful Uses of Outer Space and
the International Telecommunication Union.
The United Nations is undoubtedly capable of making a prime contribution
to truly international co-operation in space communication. Attempts to
ignore it can only impair the prestige of the Organisation.”30
What is meant by “the entire range of questions pertaining to space
communication,” is not explained. Whether UNCOPUOS is now or
ever was intended to deal with matters of construction, operation,
maintenance, or other functions within “the entire range of questions
pertaining to space communication,” is open to serious debate. The
questions of regulation and international coordination of communica-
tions belong to, and are assigned to the ITU; but it has never been
the actual or intended function of the ITU to act as an operator of
communication systems, except for its internal needs. Exactly what
kind of question should be transferred to these “corresponding organ-
izations” beyond those already assigned, is another unanswered puzzle.
Within the more than one hundred and twenty-five nations of our
world community there are many competent and sincere comment-
ators capable of producing well-reasoned arguments of constructive
criticism of existing and emerging systems of international control
for space communications. In due time many of these views will
appear to stimulate meaningful discussion and achievement of sound
and workable agreements for the maximum utilization of the gifts of
technology. It is to be expected, and indeed to be hoped, that the
existing regime of international control of world communications will
be modified to assure the widest possible participation of nations.
A serious question for consideration today is whether or not a
nation, any nation, has a right to share advantages which are obtained
from technology. If such a right exists it must be explained so as
to be clearly understood by those who will make the decisions in
the future. As the world is already well advised that there is a substan-
tial gap between “recognition” and “attainment” of rights, it should
be clearly understood that such thinking must be begun now.
The thinking will not automatically produce the solution to the
many problems which will arise. Thinking alone is but a fertile seed;
that seed must be planted, nurtured, protected and supported in the
openly hostile world of unstable lands, barren and battle-cleared fields,
and unhospitable climates in which attacks are often made for the
sake of attacking.
The next major milestone for implementing decisions with regard
to the permanent organization of international satellite communica-
30 Ibid.
No. 2] INTERNATIONAL SATELLITE COMMUNICATIONS 147
Lions will be reached in 1969. During the interim diplomats and
lawyers wili accomplish much more understanding and agreement, if
they clarify in their discussions the nature of the topics discussed. The
present Agreement Establishing Interim Arrangements for a Global
Commercial Communications Satellite System, as a duly drawn and
executed international agreement, is a part of international law. Dis-
cussions of its efficacy, political desirability, economic soundness, or
social significance are all in order. What must be avoided, in order
to prevent confusion and useless bickering, is the treatment o:, politi-
cal aspects of the problem as “legal”, or the voicing of economic criti-
cism of organizational structures as challenges of legal validity. The
component elements of the law must be discussed, in their individual
perspective as elements and in their interrelation in their final syn-
thesis into an idea expressed as law.
The achievement of a sound and lasting international agreement
for the organization, management and control of international satellite
communications necessarily presumes extended discussion. When a
consensus can be reached, will be determined by the point in time
when discourse is begun, the seriousness and sincerity with which it
is pursued, and the reasonableness of the discussants in their demands.
Oblique and vindictive statements lead to disruption of communication
and discontent. Parties must communicate with rapport if agreement
is ever to be reached.
In all discussions of law and facts, close thought and precise ex-
pression are absolutely essential. No better guide is available to the
lawyer or to the statesman, than the exhortation to speak concisely
with meaning, in precise language and clear style, and to have given
the listener the benefit of an objective look at what is said.
