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Foreign Communication Policy and DBS: 1962-1984 79

4.2 THE FREE FLOW OF INFORMATION AND
INTERNATIONAL LAW

Because international law constitutes a means of regulating relations
among nation states, it necessarily develops with, and is dependent on,
relations between nation states through bilateral and multilateral
agreements. These inter-state obligations generally constitute what is
referred to as 'conventional' international law. 'Customary' interna-
tional law, on the other hand, is based on the general norms of inter-
state relations involving common practice and mutual acceptance. 18
Thus, for common law to be established, not only must a well-estab-
lished practice be in place, but also a universal reCognition of its
legality needs to be present. The most fundamental principle of
19
international law is the sovereignty of the nation state. As such, the
domestic actions of governments are legally limited only by establ-
ished international laws and recognized practices. This means that a
nation state may not break its obligations to another on the grounds
that domestic laws take precedence. Put differently, where a conven-
tional or customary legal obligation is not present, the nation state is
theoretically free to exercise its sovereignty within its territories.
Questions concerning the obligations of nation states to facilitate or
resist transnational DBS transmissions, from an idealistic legal per-
spective, therefore can be evaluated in terms of the existence or
absence of treaty commitments, international conventions, or of the
presence of customary law. 20
The predecessor to the International Telecommunications Union -
the International Telegraph Union - was established in 1865 by
twenty European countries. Its mandate was to coordinate the tech-
nical aspects of transnational telegraph activities. The ITU thus con-
stituted the first de facto international law-making institution. Its
membership now includes all members of the United Nations and its
activities still involve mostly regulatory and technical issues concern-
ing transnational telecommunications. 21 In 1959, when the ITU first
allocated frequency bands for remote-controlled vehicles in outer
space, it established a jurisdictional precedent in international space
law. Today, this precedent is exercised through the Union's allocation
of DBS frequencies and other activities. 22
Until recently, with the exception of the League of Nations Treaty
of 1936, no international agreement has explicitly limited nation-state
sovereignty over foreign communication transmissions nor has any
such agreement formally limited that sovereignty. 23 Issues concerning