* Visiting Professor, Boalt Hall School of Law, University of California at Berkeley, USA. Doctor of Law, Senior Research Fellow at the Institute of State and Law, Academy of Sciences, Moscow, USSR. This article is an expanded version of a paper published in 5 SPACE POLICY 321-329 (1989). It is printed here with the kind permission of the original publisher. The author would like to express his appreciation to the editors of the HIGH TECHNOLOGY LAW JOURNAL: Maureen Dorney, Jennelle Hall, Robert Benson and Helen Shin, for their constructive advice and many helpful suggestions.

1 REVIEW OF THE MULTILATERAL TREATY-MAKING PROCESS, U.N. Doc. ST LEG SER.B 21, U.N. Sales No. E F.83.V.8 (1985).

2 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].

3 art. I.

4

5 art. II

6 art. IV.

7 art. V.

8 art. VI.

9 art. VII.

100 art. XI.

111 17 J. SPACE L. 98-102 (1989); M. BOWMAN & D. HARRIS, MULTILATERAL TREATIES: INDEX AND CURRENT STATUS (1984 & Supp.).

122 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched Into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570, T.I.A.S. No. 6599, 672 U.N.T.S. 119 [hereinafter Agreement on the Rescue of Astronauts].

133 Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, T.I.A.S. No. 7762, 961 U.N.T.S. 187.

144 Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, 28 U.S.T. 695, T.I.A.S. No. 8480, 1023 U.N.T.S. 15.

155 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, G.A. Res. 34 68, 34 U.N. GAOR Supp. (No. 46) at 77, U.N. Doc. A 34 46 (1979) [hereinafter Moon Treaty].

166 art. 11.

177 art. 11, para. 5.

188 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, 14 U.S.T. 1313, T.I.A.S. No. 5433, 480 U.N.T.S. 43 [hereinafter Partial Nuclear Test Ban Treaty].

199 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1976, 31 U.S.T. 333, T.I.A.S. No. 9614, 1108 U.N.T.S. 151.

200 International Telecommunication Union, (1982) [hereinafter ITU Convention].

211 U.N. Doc. A AC.105 430 at 4 (1989). Not all states believe, however, that there is a need for the legal definition of the boundary between air space and outer space. In particular, the U.S. has traditionally expressed the view that the absence of a definition or delimitation of outer space has not created and will not create practical problems for the progress in the exploration of outer space. The U.S. representatives urge the UNCOPUOS to drop this matter from the agenda of its Legal Sub-Committee. U.N. Doc. A AC.105 PV.332 at 17-18 (1989) (statement of the U.S. representative in the outer space committee). For a presentation of this approach on the doctrinal level, see, e.g., Hosenball & Hofgard, 57 U. COLO. L. REV. 885-893 (1986).

222 U.N. Doc. A AC.105 430 at 4 (1989).

233 For expressions of concern over the environmental effects of space activities on the part of the international scientific community, see U.N. Doc. A AC.105 420 (1988) (submitted by the Committee on Space Research and the International Astronautical Federation). During the discussions in the UNCOPUOS on the issues relating to the use of nuclear power sources in outer space, it was proposed that special provisions on the prevention of "space pollution" be included into the relevant Draft Articles under discussion. U.N. Doc. A AC.105 430 at 21 (1989). There is also a growing number of official statements calling for the study and discussion of space environmental problems, especially of issues relating to space debris. In 1989 Austria, Belgium, Canada, F.R.G., the Netherlands, Nigeria and Sweden proposed that the issue of space debris be put on the agenda of the Scientific and Technical Sub-Committee of the UNCOPUOS. U.N. Doc. A AC.105 L.179 (1989) (U.N. documents denoted "L." are issued in restricted distribution. These documents are only available at the U.N. libraries in New York City, New York and Geneva, Switzerland.). U.N. Doc. A AC.105 PV.322 at 33 (1989) (statement in the UNCOPUOS by the representative of the Soviet Union: "[T]he Soviet delegation shares the disquiet over the state of space environment voiced by a large number of Committee members. We are prepared to discuss that problem."); U.N. Doc. A AC.105 PV.323 at 67-68 (1989) (statement in the UNCOPUOS by the representative of Brazil: "We strongly recommend that the Committee deals, on a priority basis, with questions relating to the threats posed to the Earth's environment by space activities and to the preservation of space's environment itself.").

244 For a comprehensive discussion of relevant problems, see MAINTAINING OUTER SPACE FOR PEACEFUL USES (N. Jasentuliyana ed. 1984).

255 On the growing economic advantages of space activities, see SPACE ACTIVITIES AND EMERGING INTERNATIONAL LAW 39-50 (N.M. Matte ed. 1984); J. GOODRICH, THE COMMERCIALIZATION OF OUTER SPACE: OPPORTUNITIES AND OBSTACLES FOR AMERICAN BUSINESS (1989).

266 For details, see Böckstiegel, 12 ANNALS AIR & SPACE L. 175 (1987).

277 On the role of the UN General Assembly resolutions in the development of space law, see Kopal, 16 J. SPACE L. 5 (1988).

288 G.A. Res. 37 92, 37 U.N. GAOR Supp. (No. 51) at 98, U.N. Doc. A 37 51 (1982).

299 G.A. Res. 41 65, 41 U.N. GAOR Supp. (No. 53) at 115, U.N. Doc. A 41 53 (1986).

300 After the adoption of the 1982 Principles Governing Direct Television Broadcasting by the UN General Assembly, different opinions were expressed on the need for further legislative action. Thus, the Soviet representative in the UNCOPUOS expressed the view that "the Legal Sub-Committee should as quickly as possible proceed to draft a convention on international direct television broadcasting on the basis of the declaration of principles." U.N. Doc. A AC.105 PV.247 at 16 (1983). By contrast, the representative of Italy stated:

The text of principles may be reviewed in due course so as to meet with general acceptance and to make implementation of these principles more likely. This leads us to think that for the time being the wisest course could possibly consist of letting a certain period of time pass before re-examining the issue in the light of further development.

U.N. Doc. A AC.105 PV.249 at 16 (1983). The U.S. representative, for his part, clearly rejected the idea of considering the 1982 Principles "as the basis for negotiating a treaty on the subject." at 34-35.

Similarly, as regards the 1986 Principles Relating to Remote Sensing, the Soviet representative expressed the opinion that the approval of the Principles by the UN General Assembly "should be followed by the formulation of an appropriate international agreement." 25 U.N. GAOR Comm. on the Peaceful Uses of Outer Space (449th mtg.) at 3, U.N. Doc. A AC.105 C.2 SR.449 at 3 (1986). 41 U.N. GAOR Special Political Comm. (38th mtg.) at 5, U.N. Doc. A SPC 41 SR.38 (1986). This view is not shared, however, by other states. Thus, the representative of the U.S. stated that the embodiment of the Principles in "a new legal instrument was neither necessary nor desirable." at 4. at 3 (statement of the representative of Japan).

31 Moon Treaty, note 15, art. 11, para. 5.

32 art. 18.

33 Outer Space Treaty, note 2, Preamble.

34 notes 93-99 and accompanying text.

35 For background information on the UNCOPUOS and its Legal, and Scientific and Technical Sub-Committees, see REVIEW OF THE MULTILATERAL TREATY-MAKING PROCESS, note 1, at 341-348.

36 For details, see Galloway, 7 J. SPACE L. 3 (1979). For an excellent presentation of general problems relating to the notion and practice of consensus techniques in multilateral law-making, see Zemanek, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY 857, 871-80 (R. Macdonald, D. Johnston eds. 1983).

37 notes 2, 12-15 and accompanying text.

38 REVIEW OF THE MULTILATERAL TREATY-MAKING PROCESS, note 1, at 19 (statement of the UN Secretary General).

39 Jasentuliyana, 11 ANNALS AIR & SPACE L. 219, 223 (1986).

40 Lee, , in CONTEMPORARY PROBLEMS OF INTERNATIONAL LAW: ESSAYS IN HONOUR OF GEORGE SCHWARZENBERGER 157, 167 (1988). U.N. Doc. A AC.105 PV.203 at 21 (1979) (statement of the U.S. representative made in connection with the adoption of the text of the Moon Treaty: "Consensus may not be the speediest method of work, but it is a method which best ensures that the results achieved by the Outer Space Committee are meaningful and will be generally accepted.").

41 The predecessor of UNCOPUOS, the Committee on the Peaceful Uses of Outer Space, had eighteen members, G.A. Res. 1348, 13 U.N. GAOR Supp. (No. 18) at 5, U.N. Doc. A 4090 (1958), the first permanent UNCOPUOS had twenty-four members, G.A. Res. 1472, 14 U.N. GAOR Supp. (No. 16) at 5, U.N. Doc. A 4354 (1959), and the present UNCOPUOS has a membership of fifty-three nations, G.A. Res. 35 16, 35 U.N. GAOR Supp. (No. 48) at 88, U.N. Doc. A 35 48 (1980). At present the UNCOPUOS is composed of the following member states: Albania, Argentina, Australia, Austria, Belgium, Benin, Brazil, Bulgaria, Burkina Faso, Cameroon, Canada, Chad, Chile, China, Colombia, Czechoslovakia, Ecuador, Egypt, France, German Democratic Republic, Federal Republic of Germany, Greece, Hungary, India, Indonesia, Iran (Islamic Republic of), Iraq, Italy, Japan, Kenya, Lebanon, Mexico, Mongolia, Morocco, Netherlands, Niger, Nigeria, Pakistan, Philippines, Poland, Romania, Sierra Leone, Spain, Sudan, Sweden, Syrian Arab Republic, USSR, UK, USA, Uruguay, Venezuela, Viet Nam and Yugoslavia. 43 U.N. GAOR Supp. (No. 20) at 2, U.N. Doc. A 43 20 (1988).

42 For a more detailed discussion of relevant problems, see, e.g., Johnson, , 10 THESAURUS ACROASIUM, AIR & OUTER SPACE L. 379 (1981); Vicas, , in SPACE ACTIVITIES AND IMPLICATIONS: WHERE FROM AND WHERE TO AT THE THRESHOLD OF THE 80'S 293 (1981); Danilenko, in SPACE LAW: VIEWS OF THE FUTURE 100, 100-105 (1988).

43 During the negotiations on the legal regime for exploitation of lunar resources on the basis of the common heritage of mankind concept, a number of developing countries expressly stated that they regarded these negotiations as a important step in the establishment of a NIEO. U.N. Doc. A AC.105 PV.171 at 68 (1977) (statement of the representative of Venezuela), U.N. Doc. A AC.105 PV.172 at 26 (1977) (statement of the representative of Brazil); U.N. Doc. A AC.105 C.2 SR.291 at 6 (1978) (statement of the representative of Colombia).

44 note 29.

45 Thus, according to Principle XII, the sensed state shall have access to the available analyzed remote sensing information concerning the territory under its jurisdiction in the possession of any state participating in remote sensing activities on "reasonable cost terms" but "taking particularly into account the needs and interests of the developing countries." at 116. Principles II, IX, XIII.

46 It is significant to note that Art. 33 of the 1982 ITU Convention, note 20, provides that all countries should have equitable access to radio frequencies and the geostationary satellite orbit, "taking into account the special needs of the developing countries." This language is also used in different proposals relating to the definition of the notion of equitable access to the geostationary orbit currently under discussion in the UNCOPUOS. U.N. Doc. A AC.105 430 at 33-37 (1989).

47 43 U.N. GAOR Supp. (No. 20) at 16, U.N. Doc. A 43 20 (1988). The new item for the UNCOPUOS agenda deals with "[c]onsideration of the legal aspects related to the application of the principle that the exploration and utilization of outer space should be carried out for the benefit and in the interests of all states, taking into particular account the needs of developing countries."

48 U.N. Doc. A AC.105 430 at 11 (1989).

49 G.A. Res. 3201, __ U.N. GAOR Supp. (No. 1) at 3, U.N. Doc. A19559 (1974).

50 G.A. Res. 3281, 29 U.N. GAOR Supp. (No. 31) at 50, U.N. Doc. A19631 (1974).

51 note 15. According to art. 11, para. 1 of the Moon Treaty, "the Moon and its natural resources are the common heritage of mankind." Art. 11, para. 5 provides that "States Parties to this Agreement hereby undertake to establish an international règime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible." The radically opposed interpretations of these provisions indicate the absence of common intent. The major controversy relates to the question of whether art. 11 establishes a moratorium on lunar mining. During the negotiations on the Moon Treaty, a claim was put forward that the obligation to establish an international regime amounts to recognition of the moratorium. U.N. Doc. A AC.105 C.2 SR.249 at 8 (1976) (statement of the representative of Mexico). U.N. Doc. A AC.105 PV.123 at 6 (1973) (statement of the representative of India), U.N. Doc. A AC.105 C.2 SR.211 at 26 (1974) (statement of the representative of Iran). Later on this interpretation was supported by a number of writers from the developing countries. Rao, 21 INDIAN J. INT'L L. 275 (1981); Sehgal, 26 INDIAN J. INT'L L. 106, 112 (1986). This interpretation of art. 11 was rejected, however, by the space powers, particularly the U.S. U.N. Doc. A AC.105 PV.203 at 22 (1979) (statement of the representative of the U.S.). For conflicting interpretations of the relevant provisions of the Moon Treaty during the Senate hearings, see 96th Cong., 2nd Sess. (1980). For doctrinal discussions, see, e.g., Dula, 2 HOUSTON INT'L L.J. 3 (1979); Griffin, 46 J. AIR L. & COM. 729 (1981).

52 note 29. The statements of a number of delegations at the final stage of the negotiations on the 1986 Principles Relating to Remote Sensing clearly indicate that despite the fact that formal consensus was reached, serious differences remained in national approaches to a number of fundamental provisions. Thus, although the Principles do not require prior permission of sensed states for remote sensing of their territories, a number of countries continued to maintain that "[s]ensing states should notify and seek the permission of sensed states before undertaking such activities . . . . Carrying out remote sensing activities without permission [run] counter to the ideas of international co-operation." U.N. Doc. A AC.105 SR.290 at 6 (1986) (statement of the representative of Nigeria). 41 U.N. GAOR Special Political Comm. (37th mtg.) at 14, U.N. Doc. A SPC 41 SR.37 (1986) (statement of the representative of Venezuela), 41 U.N. GAOR Special Political Comm. (38th mtg.) at 2, U.N. Doc. A SPC 41 SR.38 (1986) (statement of the representative of Turkey); at 7 (statement of the representative of Algeria). Other states have joined the consensus with serious reservations. Thus, the representative of Yugoslavia stated that "Yugoslavia had joined the consensus, although it had certain reservations concerning the provisions of some principles, particularly those that could be construed as allowing for the possibility of limiting the sovereignty of countries over their natural resources." 41 U.N. GAOR Special Political Comm. (38th mtg.), at 10.

53 note 15.

54 By 1988 the Moon Treaty had been ratified by Australia, Austria, Chile, the Netherlands, Pakistan, the Philippines and Uruguay. , U.N. Doc. ST LEG SER.E 7 at 801 (1989).

55 notes 38-40 and accompanying text.

56 The developing countries initiated the consideration of a number of key agenda items of the UNCOPUOS. Thus, the first proposal relating to remote sensing was introduced by Argentina. U.N. Doc. A AC.105 C.2 L.73 (1970). Argentina was also the first country to raise the question of the common heritage of mankind as regards the moon in a 1970 proposal containing a "draft agreement on the principles governing activities in the use of the natural resources of the Moon and other celestial bodies." U.N. Doc. A AC.105 C.2 L.71 (1970). The new item on the agenda of the UNCOPUOS relating to the distribution of the benefits derived from space activities, note 47, was adopted on the basis of the proposal submitted by the Group of 77. U.N. Doc. A AC.105 C.2 L.162 (1987) (U.N. documents denoted "L." are issued in restricted distribution. These documents are only available at the U.N. libraries in New York City, New York and Geneva, Switzerland.).

57 The Principles Governing Direct Television Broadcasting, note 28, were adopted in the UN General Assembly by 107 votes to 13, with 13 abstentions. The U.S. and a number of other Western countries voted against the Principles. 37 U.N. GAOR (100th plen. mtg.) at 1661, U.N. Doc. A 37 PV.100 (1982).

58 Thus, in referring to the continued use of the consensus rule-making techniques by the UNCOPUOS, the representative of Pakistan stated that if there is no tangible progress in the disposal of the pending agenda items the UNCOPUOS may be forced to "consider revising its current working procedures." U.N. Doc. A AC.105 PV.225 at 6-7 (1981). During the 1989 session of the UNCOPUOS, the representative of Ecuador stated that Ecuador "deplores the fact that the principle of consensus has been turned into the equivalent of the veto." U.N. Doc. A AC.105 PV.335 at 18-20 (1989).

59 SPACE ACTIVITIES AND EMERGING INTERNATIONAL LAW, note 25, at 202. Jasentuliyana, note 39, at 224.

60 North Sea Continental Shelf (W. Ger. v. Den.; W. Ger. v. Neth.), 1969 I.C.J. 3, 42-43 (Feb. 20, 1969).

61 Smith, in SPACE LAW: VIEWS OF THE FUTURE 45, 54 (1988).

62 de Seife, in I AMERICAN ENTERPRISE, THE LAW AND THE COMMERCIAL USE OF SPACE 73, 108 (1986).

63 Cheng, 39 CURRENT LEGAL PROBS. 181, 190 (1986) (Citation omitted. Smith, note 61 and accompanying text).

64 at 190.

65 Jasentuliyana, note 39, at 224.

66 G. ZHUKOV & Y. KOLOSOV, INTERNATIONAL SPACE LAW 17-18 (1984).

67 at 18.

68 Christol, 9 ANNUAIRE DE DROIT MARITIME ET AÉRO-SPACIAL 291, 295 (1987).

69 U.N. Doc. A AC.105 PV.249 at 34-35 (1983) (emphasis added).

70 SPACE ACTIVITIES AND EMERGING INTERNATIONAL LAW, note 25, at 202 ("Within the United Nations, the one nation - one vote system has become an almost sacrosanct principle").

71 AVIATION WEEK & SPACE TECH., Sept. 5, 1988, at 55; UNESCO, STATISTICAL YEARBOOK 1988 5-84 (1988) (table 5.15); ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, THE SPACE INDUSTRY: TRADE RELATED ISSUES 36-7 (1985).

72 HOUSE SUBCOMM. ON SPACE SCIENCE AND APPLICATIONS, SPACE ACTIVITIES OF THE UNITED STATES, SOVIET UNION, AND OTHER LAUNCHING COUNTRIES: 1957-1987, 100th Cong., 2nd Sess. 2 (1988) (published annually).

73 Outer Space Treaty, note 2, art. XIV, paras. 2-3.

74 Agreement on the Rescue of Astronauts, note 12, art. 7, paras. 2-3.

75 Partial Nuclear Test Ban Treaty, note 18, art. III, para. 2.

76 13 INT'L LEGAL MATERIALS 910 (1974). The 1986 UN Convention on Conditions for Registration of Ships, U.N. Doc. TD RS Conf 23 (1986).

77 note 54 and accompanying text.

78 note 2.

79 note 15.

80 Böckstiegel, note 26, at 179. . Böckstiegel, 8 ANNALS OF AIR & SPACE L. 305, 308-309 (1983); PROCEEDINGS OF THE 80TH ANNUAL MEETING OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW 381 (1986) (remarks by John E. O'Brien).

81 Webber, 71 GEO. L.J. 1427, 1450-51 (1983).

82 Schachter, 55 CALIF. L. REV. 423, 425 (1967). Gotlieb, 170 RECUEIL DES COURS 115, 149, 154 (1981); Slouka, in LAW-MAKING IN THE GLOBAL COMMUNITY 131, 150 (N. Onuf ed. 1982); Charney, 76 AM. J. INT'L L. 78, 84-89 (1982).

83 Zwaan, in SPACE LAW: VIEWS OF THE FUTURE 33, 37 (1988).

84 Stressing the fact that all the rules formulated with regard to outer space have been anticipatory, the representative of Chile in the UNCOPUOS stated: "There could be no doubt that only by a process of anticipation was it possible to draft rules of international law." U.N. Doc. A AC.105 C.2 SR.501 at 10 (1988). U.N. Doc. A AC.106 PV.332 at 43 (1989) (statement of the representative of Malaysia on behalf of the Group of 77).

85 Charney, note 82.

86 U.N. Doc. A AC.105 C.2 SR.226-245 at 8 (1975). At a later stage in the negotiations relating to the moon, the Soviet representative in the UNCOPUOS expressed a similar approach in the following manner:

[A]t this experimental stage in the conquest and exploration of the moon, when we do not have sufficient bases to affirm that indeed there are natural resources there, resources that might be used on earth, and when we do not have sufficient well-founded technical and economic calculations indicating that the mining of such minerals and their return to earth will be economically feasible and advisable in the future. Under these conditions it is a bit early for the treaty text to reflect such provisions in such striking terms.

We do not want the Committee to draft the kind of document that would for many years to come remain just a fantastic story on a legal theme.

U.N. Doc. A AC.105 PV.185 at 21 (1978).

87 U.N. Doc. A Conf.101 10 at 124 (1982).

88 U.N. Doc. A C.1 1047 (1974) [hereinafter ] (submitted to the First Committee of the U.N. General Assembly by Argentina and Brazil). For details, Cocca, , in LEGAL IMPLICATIONS OF REMOTE SENSING FROM OUTER SPACE 63 (1976).

89 note 88, art. V.

90 Before the final approval of the text of the Principles Relating to Remote Sensing, the representative of Colombia in the Special Political Committee of the UN General Assembly had to admit that it was the "technological and commercial reality" which, in his words, "played a decisive influence during the final negotiations." 41 U.N. GAOR Special Political Comm. (38th mtg.) at 6, U.N. Doc. A SPC 41 SR.38 (1986).

91 note 29.

92 Rosenfield, in 1980 INT'L INST. OF SPACE L. OF THE INT'L ASTRONAUTICAL FED'N 69, 71 (Proceedings of the Twenty-Third Colloquium on the Law of Outer Space).

93 U.N. Doc. A AC.105 109 (1973).

94 For a detailed discussion of relevant problems, see Doyle, 17 J. SPACE L. 13 (1989); Doyle, 15 J. SPACE L. 1 (1987); Smith, 83 AM. J. INT'L L. 596 (1989); Smith, 8 HOUSTON J. INT'L L. 227 (1986).

95 43 U.N. GAOR Supp. (No. 27) at 213-28, U.N. Doc. A 43 27 (1988).

96 U.N. Doc. CD 851 (1988) (submitted by Venezuela).

97 25 INT'L LEGAL MATERIALS 1369-1376 (1986). For details, see Terekhov, PROCEEDINGS OF THE THIRTEENTH COLLOQUIUM ON THE LAW OF OUTER SPACE 403 (1987).

98 In considering problems relevant to this topic, the special Rapporteurs of the International Law Commission often rely on the provisions on absolute liability contained in the 1972 Convention on International Liability for Damage Caused by Space Objects. note 13, art. II. Quentin-Baxter, [1980] 2 Y.B. INT'L L. COMM'N 254, U.N. Doc. A CN.4 SER.A 1980; Barboza, [1986] 2 Y.B. INT'L L. COMM'N 156, U.N. Doc. A CN.4 SER.A 1986. See also the references to "spacecraft in outer space" and to "spaceship" in the last report on this topic, Barboza, , U.N. Doc. A CN.4 413 at 20, 22 (1988).

99 An illustration of this trend are the proposals of the Group of 77 to adopt rules regulating marine remote sensing by satellites at the Third United Nations Conference on the Law of the Sea. For details, see Danilenko, 12 MARINE POL'Y 247, 250-51 (1988).

100 Jakhu, 8 ANNALS AIR & SPACE L. 381 (1983).

101 U.N. Doc. A AC.105 360 (1985) (letter from the Secretary General of the ITU to the Secretary General of the United Nations, Oct. 16, 1985).

102 Countries favoring the prior consent rule contended, in particular, that the ITU regulations "reflect broad international recognition that direct television broadcasting should be based solely on prior agreements between the interested states, and thus confirm the necessity for a principle on consultation and agreements." U.N. Doc. A AC.105 196, Annex II at 1 (1977) (report of the Chairman of Working Group II). For a similar argument on the doctrinal level, Chapman & Warren, 4 ANNALS AIR & SPACE L. 413-432 (1979). For a contrary view, see the statement of the U.S. representative to the Legal Sub-Committee of the Committee on the Peaceful Uses of Outer Space (14 March 1979), U.N. Doc. A AC.105 C.2 SR.304 at 8 (1979).

103 For a detailed analysis of relevant problems, see, e.g., K.M. QUEENEY, DIRECT BROADCAST SATELLITES AND THE UNITED NATIONS (1978); S.F. LUTHER, THE UNITED STATES AND THE DIRECT BROADCAST SATELLITE (1988); G. ZHUKOV & Y. KOLOSOV, note 66, at 127-136.

104 For details, see U.N. Doc. A AC.105 213 at 6-7 (1977). For a description of the ITU regulations, , U.N. Doc. A AC.105 196, Annex IV (1977) (working paper submitted by the United Kingdom to the UNCOPUOS).

105 According to art. 33 of the ITU Convention, note 20, "radio frequencies and the geostationary satellite orbit are limited natural resources" which must be "used efficiently and economically, in conformity with the provisions of the Radio Regulations, so that countries or group of countries may have equitable access to both, taking into account the special needs of the developing countries and the geographical situation of particular countries." In 1988 "friends of the Chairman" of the Working Group on the geostationary orbit of the Legal Sub-Committee of the UNCOPUOS proposed the following definition of the concept of equitable access to the geostationary orbit:

All states should be guaranteed in practice equitable access to the geostationary orbit in accordance with articles 10 and 33 of the Nairobi ITU Convention. The geostationary orbit should be used most efficiently and economically. Special needs of the developing countries and the geographical situation of particular countries should be taken into account when guaranteeing in practice equitable access to the geostationary orbit.

U.N. Doc. A AC.105 411 at 33 (1988).

In 1989 a number of countries, members of the Group of 77, submitted at he meeting of the Working Group a "working non-paper" which contained the following provision:

All states should be guaranteed in practice equitable access to the geostationary orbit in accordance with articles 10 and 33 of the Nairobi ITU Convention. The geostationary orbit should be used most efficiently and economically. Special needs of the developing countries and the geographical situation of particular countries, such as the equatorial countries, should be taken into account when guaranteeing in practice the equitable access to the geostationary orbit.

U.N. Doc. A AC.105 430, Annex II at 34 (1989).

The subsequent exchange of views on this provision has indicated that many delegations used the wording of Art. 33 of the ITU Convention as a major argument in assessing the acceptability of the proposed general definition. In particular, it was stated that "although the above formulation was evidently based on article 33 of the ITU Convention, it deviated without adequate justification from the language used in that article," at 34, that "the above formulation went far beyond article 33 of the ITU Convention," or that "this formulation departed significantly from the relevant wording of article 33" by using, in particular, such expressions as "in practice" and "such as the equatorial countries," at 34, 36.

106 It is clear now that, as S. Danielsson put it, "governments wishing to formulate a coherent policy for the regulation of outer space activities have to follow developments in different places." Danielsson, in SPACE ACTIVITIES AND IMPLICATIONS: WHERE FROM AND WHERE TO AT THE THRESHOLD OF THE 80'S 99, 117 (1981). Experience indicates, however, that this is not always the case. Thus, in commenting on the negotiations concerning direct broadcast satellites (DBS), J.H. Chapman and G.I. Warren write, "recent history has shown that officials dealing with DBS in one forum have been only superficially aware of DBS developments in other foa [sic]." Chapman & Warren, note 103, at 416.

107 note 97.

108 For details, see Terekhov, note 97, at 403-410.

109 During the discussions on the Draft Principles Relevant to the Use of Nuclear Power Sources in Outer Space in the UNCOPUOS, the representative of China referred to suggestions in the previous session to conduct "a comparative study" of the Draft Principles with the IAEA Conventions. U.N. Doc. A AC.105 C.2 SR.482 at 2 (1988).

110 During the 1988 session of the UNCOPUOS, the Soviet representative drew "attention to the need for the principles we are drafting to accord with the provisions of the two IAEA Conventions of 1986." U.N. Doc. A AC.105 PV.318 at 58 (1988). In 1989 the Soviet representative stated again:

The draft principles needed to be brought into line with the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, which were adopted by IAEA in 1986. Those conventions fully applied to situations involving the use of nuclear power sources in outer space.

U.N. Doc. A AC.105 C.2 SR.507 at 5 (1989). In evaluating the proposed principles on notification and assistance, the representative of Canada emphasized that his delegation has not "lost sight of the problem of the relationship between them and the relevant IAEA conventions. . . ." U.N. Doc. A AC.105 C.2 SR.481 at 3 (1988). U.N. Doc. A AC.105 C.2 SR.484 at 2 (1988) (statements of the representative of Czechoslovakia); U.N. Doc. A AC.105 C.2 SR.485 at 3 (1988) (statements of the representative of Bulgaria).

111 REVIEW OF THE MULTILATERAL TREATY-MAKING PROCESS, note 1.

112 note 2.

113 note 15.

114 Outer Space Treaty, note 2, art. IX. The pertinent provision of art. IX reads: "States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter . . . ."

115

116

117 Moon Treaty, note 15, art. 7. Art. 7 reads:

In exploring and using the Moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise. States Parties shall also take measures to avoid harmfully affecting the environment of the Earth through the introduction of extraterrestrial matter or otherwise.

118 Outer Space Treaty, note 2, art. I.

119 C.Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 39-42 (1982).

120 note 51.

121 Moon Treaty, note 15, art. 11, para. 7.

122 art. 11, para. 5.

123 U.N. Doc. A 33 162 (1978) (The original parties to the Convention were Cuba, Czechoslovakia, the German Democratic Republic, Hungary, Mongolia, Poland, Rumania and the USSR). For details, G. ZHUKOV & Y. KOLOSOV, note 66, at 150-51.

124 note 29.

125 Principle XII.

126 U.N. Doc. A 33 162 (1978), art. IV.

127 notes 2, 12-15 and accompanying text.

128 U.N. Doc. A Conf.62 122 (1982).

129 Borgese, in THE ADAPTATION OF STRUCTURES AND METHODS AT THE UNITED NATIONS 373, 382-85 (D. Bardonett ed. 1986) (discussing prospects for the global international space conference, analogous to the Third U.N. Conference on the Law of the Sea, which by relying on comprehensive and systematic approaches may create "one comprehensive system" for disarmament and development in outer space); ST.FRHR. VON WELCK & R. PLATZODER, WELTRAUMRECHT (LAW OF OUTER SPACE) 6 (1987) ("The rapid technological development and the political interest in the exploration and use of outer space require the expansion and further development of existing space law. This may lead to the convening of an international conference in coming years -- similar to the Third U.N. Conference on the Law of the Sea -- so as to elaborate a regime covering all uses of outer space.") (Translation from German by the author.)

Plant, 36 INT'L & COMP. L.Q. 525, 558 (1987). It appears that a well-known Soviet expert on international law in general and on the law of outer space in particular, Y. Kolosov, could also be included among supporters of such an approach. He stated recently that in view of the need for universalization of international law it may be desirable to propose, by analogy with the drafting of the UN Convention on the Law of the Sea, "major universal conventions" setting standards of behavior for states "in every sphere of international law and international relations." 4 INT'L AFF. (MOSCOW) 84, 88 (1989) (remarks of Yuri Kolosov).

130 U.N. Doc. A AC.105 C.2 SR.247 at 4 (1976).

131 U.N. Doc. A AC.105 PV.312 at 6 (1988) (statement of the representative of Colombia in the UNCOPUOS). U.N. Doc. A AC.105 C.2 SR.506 at 10 (1989) (statement of the representative of Argentina: "The main aim of Argentina's policy with regard to the exploration and utilization of outer space was the progressive elaboration of an international legal code which would regulate such activities adequately, taking into account the interests of all countries and, in particular, the needs of the developing countries.").

132 note 2. It is significant to bear in mind that a number of developing countries express serious criticism of the 1967 Outer Space Treaty. Developing equatorial states claiming sovereignty over the geostationary orbit over their territories contend in the Bogotà Declaration that:

[The Outer Space Treaty] cannot be considered as a final answer to the problem of the exploration and use of outer space, particularly since the international community is now calling in question all the terms of international law which were drawn up at a time when the developing countries could not count on adequate scientific advice and were thus not able to detect and assess the omissions, contradictions and inconsistencies in the texts, which were prepared with great ability by the industrialized Powers for their own benefit.

6 J. SPACE L. 195 (1978) (English translation) (signed in Bogata, Columbia by Brazil, Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, and Zaire). note 84 and accompanying text (statement of the representative of Chile). There are signs that the position of the equatorial countries regarding the geostationary orbit has found at least partial support from a number of countries members of the Group of 77. note 106.