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Monday, June 11, 2018

PRIOR CONSENT TO INTERNATIONAL DIRECT SATELLITE BROADCASTING

ISBN 0-7923-0692-9
Year of Publication 1990
Martinus Nijhoff Publishers: London
MOUMITA MANDAL
CENTRE FOR INTERNATIONAL LEGAL STUDIES, JAWAHARLAL NEHRU UNIVERSITY, NEW DELHI, INDIA.
(First Published on Volume 01 Issue 02, July 2016)
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The author has focused on the emergence of international legal instruments regarding international direct satellite broadcasting (DSB) and perceptions of States on DBS.  This book has been divided into three chapters. The first chapter has focused on the States perceptions on DBS and this chapter has shown that the world has been divided into three parts as the opinions of the Western nations, the opinions of East bloc states and the opinions of developing countries.
The second chapter deals with international legal development regarding DBS. And the third chapter explains the standing of prior consent under the principles of state sovereignly and freedom of information.
This paragraph will discuss the brief summary of this book as- telecommunication satellite is the source of television transmissions. The first generation telecommunication satellite was known as Fixed Satellite Service (FSS) and it was transmitted signals of T.V program between two earth stations situated at specified fixed points on the globe.  This first generation telecommunication satellite was emerged before 1980. After 1980, with the development of technology new telecommunication technology has been come into existence which is known as DBS (Direct Broadcasting Satellite). This development is also known as second generation telecommunication satellite. By this DBS directly transmit signals to the consumers without going through any earthly station. There is no filtering process of the signals transmitted by DBS. This new technology is helpful for the consumers as well as the broadcasting firms but it is not free from problems. This DBS is problematic for the sovereignty of States because the nature of DBS is such that its signals spillover and reach the area of outside its limit. So, the signals send by DBS service is reached to the consumers or nations of other State without the permission of that State and it infringes the domestic rights of that State. There is no such developed technology which can control DBS so, States use a counter satellite signals to stop DBS which is known as ‘jamming’ but it is harmful for DBS. As frequently States use this ‘jamming’ to stop DBS of a foreign State but ‘jamming’ is not globally and legally binding.
The lack of any effective technical means of regulating the inflows of foreign satellite broadcasts has eventually resulted in an interest on the part of most government to elaborate an international regal regime to govern DBS activities. The first attempt was taken formally by the United Nations Generally as early as the 1960 and it was based on the principle of prior consent. This principle was the main reason of the division of the perceptions of the world community. The principle of ‘prior consent’ is based on State sovereignty, non-intervention in domestic affairs and prevention of cultural integrity. The East bloc and developing nations supported this principle of ‘prior consent’ but USA and other Western States have rejected to accept this principle. They claimed that ‘principle of free consent’ is in contrary to freedom of information. Sweden and Canada have supported the middle approach. They seek balance between the two principles by creating a regime based on consent to the broadcasts of regional DBS systems rather than to individual broadcasts. In the next   chapter the author has been tried to show the international legal instruments which are directly or indirectly applicable for DBS. Though there is no such hard international law on SBS but the existing international law and soft law instruments are applicable on DBS regime. According to the international legal instruments are as follows:   Outer Space Treaty 1967:This treaty does not directly deal with DBS but it provides certain principles for the States to use and explore outer space. This treaty has specifically cleared that States are free to explore and use outer space but it should be for the benefit and interest of all mankind.Liability Convention: this convention imposes responsibility on the States for their outer space activities but it is not clear that whether this convention is applicable to nonmaterial damaged caused by the DBS service.DBS Principles Declaration of 1982:  this international instrument is a soft law instrument. This instrument provides certain principles for the DBS.
Satellite Declaration of UNESCO 1972:  This declaration deals with some significant issues relating to DBS and provides that there should be equal free flow of satellite broadcasting but it should be based on the principle of ‘prior consent’. This declaration also included the principles of human rights, United Nations Charter and Law of the sea that is the common heritage of mankind.
International Conferences (WARC-ST 1971 and WARC-BS 1977): some regulations adopted at those conferences but those were based on technical factors only and those cannot be treated as independent legal norms regarding DBS.
There were proposals of different States before Outer Space Committee for the establishment of an international organization which will be responsible for DBS. In 1968 the General Assembly adopted Resolution 2453 B (XXIII) and approved for the establishment of BDS Working Group by the Outer Space Committee. The first session of the DBS was held in 1969. This BDS Working Group reaffirmed the applicability of United Nations Charter 1945, Outer Space Treaty 1967, Universal Declaration of Human Rights 1948 regarding DSB.
The author has stated that different States have been supported different approached regarding emergence of international norms on DBS. Some States supported for the binding international norms but some States provided domestic legislation etc.
There are some States (Canada and Sweden) which supported for the establishment of regional system under the preview of Outer Space Treaty. And this proposal is not universal in nature. The author has discussed about the different approaches of State sovereignty, prior consent, and freedom of information and compatibility of prior consent with freedom of information. During discussion the author has shown that absolute freedom of information is in contrary to sovereignty of States and also threat to its culture, morality, welfare of the people etc. so, the only way of balancing the situation is the prior consent. And it is also the right of the State to allow or disallow the foreign signals to broadcast its program. 
Though the book is on DBS but the author has not defined DBS.  This book has given very good basic idea of DBS. But the author has not been specifically discussed the international legal instruments which are applicable DBS. Though the author discussed certain international norms which are directly or indirectly link with DBS but those international laws are not discussed clearly whether States are able to implement its domestic law to regulate foreign DBS? In the last three chapters the author has discussed the basic approaches of State sovereignty, prior consent and freedom of information but these principles are not discussed in accordance with the existing public international laws including customary international laws. All over the conclusion is that though the international legal instruments has been discussed regarding DBS but the author has filed to show the whether existing customary international laws are also applicable for DBS or not?
Existing Legal Regime Regarding Direct Satellite Broadcasting (DSB) with conclusion:
There were two initiatives of United Nations regarding DBS as foundations. The first one was the 1971 Technical Restrictions of International Direct Television Broadcasting (Radio Regulation 428A) and it was adopted by the World Administrative Radio Conference. The main aim of this instrument was regulation of broad casting problems and the coordination of States regarding radio frequencies through registration. After that UNESCO (United Nations Educational, Scientific and Cultural Organization) adopted Declaration on the Use of Satellite Broadcasting to govern satellite broadcasting. Working group of the COPUOS Legal Subcommittee was established to look after the proposals of different member States for enacting international convention on DSB. After that the Principles Governing the Use by States of Artificial Earth Satellite for International Direct Television Broadcasting was adopted by the General Assembly in 1982[1]. As of now there are only these soft laws are governing the DSB regime. There is another international institution that is the ITU (International Telecommunication Union) which is the specialized agency of United Nations. It deals with information and communication technology. ITU has 193 member States and almost 800 private sector entities and academic institutions. It creates international cooperation among states and private entities.[2]
So, as of now only these much of development of DSB has been done under the umbrella of United Nations. There is no such specific international convention regarding DBS. The minimum powerful States are controlling the technical as well as legal regime of DSB.



[1] United Nations, A BRIEF OVERVIEW OF NORMS DEVELOPMENT IN OUTER SPACE, UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH,[Online web] Accessed 30th March, 2016, URL: http://www.unidir.org/files/publications/pdfs/a-brief-overview-of-norms-development-in-outer-space-en-462.pdf
[2] ITU, [Online web] Accessed 30th March, 2016, URL: http://www.itu.int/en/about

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