sensing objectives of satellites such as ERTS-1 must be studied on a regional or global basis if they are usefully to be understood." Mr. Jaffe concluded:

As a consequence of the technical factors I have indicated, if the United States were to accept a standard of restricting the dissemination of data to that contained within specific national boundaries, we, and all other data-generating states, would in practice be compelled in most cases to deny the data received to other states. Countries without their own space systems would be deprived of data even about their own territory. Thus, what appears to us to be potentially one of the most important practical benefits for peoples all over the world so far derived from space activity, a benefit, I might add, of particular value to the large number of developing countries, would simply be lost. The United States for its part would regard this as most regrettable.

.. Over and above its differences regarding specific organizational and legal issues, we have seen the Working Group this year and last divided over two broad approaches to the further development of remote sensing technology. One approach is restrictive. It would limit the international availability of information of great prospective value, purportedly to protect sovereign rights which we believe are fully insured in other ways. The other approach is expansive. It would proceed toward even broader cooperation in understanding and application of a technology which promises to benefit not only those directly concerned with the production and use of the data, but also millions of people who may now be unaware of its very existence. The United States continues strongly to support the expansive approach. I wish here to repeat our willingness... to enter into consideration of possible guidelines or principles designed to facilitate the maximum international availability and effective utilization of data derived from satellite remote sensing systems. We hope that upon reflection our colleagues will conclude that the expansive approach is the one by far most likely to produce the general benefits from remote sensing we all seek. Press Release USUN-11 (74), Feb. 25, 1974; the Dept. of State Bulletin, Vol. LXX, No. 1815, Apr. 8, 1974, pp. 376-379.

On May 28, 1974, Ronald F. Stowe, Assistant Legal Adviser for United Nations Affairs, Department of State, made a presentation to the Legal Subcommittee of the U.N. Outer Space Committee on the subject of remote sensing. The following are excerpts:

It is our view. . . that remote sensing of the Earth and its environment, like other peaceful uses of outer space, is squarely within the tenets of the Outer Space Treaty. Specifically, we consider that our policies encouraging open access to the data derived from this activity are in conformity with one of the principal underlying goals of that Treaty, namely to conduct activities in outer space for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. In addition, we are

acting in conformity with the goals of Article XI, which calls on us to inform the Secretary-General of the nature, conduct, locations and results of such activities.

It has been suggested that as a matter of law, remote sensing constitutes an activity not within the intent or the scope of the Outer Space Treaty because the focus of the sensors on board is toward rather than away from the Earth, and because the so-called effects of such sensing are felt on the Earth. We consider that such a suggestion has no foundation.

The Outer Space Treaty was foresighted in covering not only exploration but also use of outer space. Neither we nor to the best of our knowledge any other participant in the negotiation of the Outer Space Treaty intended to confine our space activities to those taking place solely in outer space without reference to the Earth. The primary focus, indeed, was on the possibilities that space technology could be used as a new tool to improve certain conditions on Earth. It surely would have been impossible to provide that space activities should be conducted for the benefit of all mankind if one presumed that space sensors were not to focus on the Earth.

For anyone who has been actively involved in or concerned with the exploration of outer space the nature of our current remote sensing program surely could not have come as a surprise. There has been not only a decade of international acceptance of and acquiescence in such remote sensing activities; there has also been both encouragement and active participation in them by literally scores of states.

Our conclusion, for these and other reasons, is that remote sensing, like other peaceful uses of outer space, is intended to be within the tenets of the Outer Space Treaty. In conformity with Article I of that Treaty, the conduct of remote sensing of the Earth and its environment is clearly a use of outer space, and that use is obviously peaceful. Observation of the Earth and its environment in no way interferes with anyone or any activity on Earth; needless to say, it in no way violates Article 2(4) of the Charter of the provisions banning specified military activities of the Outer Space Treaty. It no more affects the Earth, its resources or its environment than a Tiros satellite affects the weather or the clouds it photographs.

Although we are not in this Subcommittee charged with and hopefully will not attempt to resolve outstanding issues in the area of sovereignty over natural resources, I do feel compelled to comment on one related element which has been asserted here: That is the proposition that international law relating to sovereignty over natural resources gives a state a right to "permanent control" over the dissemination and use of any information concerning the natural resources of that state, no matter where that information is found, gathered, disseminated or studied. In our view this has clearly never been the law in the past and as a practical matter it cannot become so now. Tremendous quantities of data and information about the geography and the resources and the environment of virtually every

country and region on Earth have long ago been assembled and published and circulated throughout the world. In any large university library today one can find literally shelves if not rooms full of volumes of data and analyses about the resources of the world. Obviously we are through observation from space utilizing a unique point of view and are obtaining significantly greater quantities of data than was possible in the same time period ever before, but the data already available is certainly considerable and highly significant. No control is possible, or in our view desirable, for example, by the United States Government over data concerning U.S. resources if, for instance that data is located in Europe. As far as we can see it would be undesirable as well as impracticable to attempt to exercise such control now.

Dept. of State File L/UNA.

On July 3, 1974, W. Tapley Bennett, Jr., United States Deputy Representative to the United Nations, and head of the U.S. delegation to the U.N. Committee on the Peaceful Uses of Outer Space, made a statement to the Committee on the issue of remote sensing, as follows:

we are prepared to discuss possible guidelines or principles designed to facilitate the maximum international availability and effective utilization of data derived from satellite remote sensing systems. However, we would underscore a cautionary note already stated at some length by U.S. spokesmen in the Working Group on Remote Sensing and again in the Legal Subcommittee. In considering principles to apply to this still experimental, still very developmental, space application, we must be careful to be aware of and analyze the practical consequences of any such principles. Regional considerations, along with those applicable to individual countries, must be taken into account. We must be especially watchful lest possibly unintended legal consequences result in inhibitions against the further expansion of international cooperation in the use of the technology.

Let me repeat what the U.S. Representative told the Remote Sensing Working Group: While we intend to continue an open dissemination policy with respect to data derived from our experimental space remote sensing program, we have no wish or intention to force that data on others who do not want it. We continue to believe, however, that imposition of international restrictions on the general availability of such data would work to the disadvaantage of precisely those countries which are most in need of the information derived from the data. We would hope, therefore, that this committee and its subsidiaries would avoid taking a restrictive course in their future work on remote sensing.

Dept. of State Bulletin, Vol. LXXI, No. 1835, Aug. 26, 1974, pp. 325–326.

Chapter 9

STATE RESPONSIBILITY FOR INJURIES TO
ALIENS: DIPLOMATIC PROTECTION AND
INTERNATIONAL CLAIMS

81 Conditions and Procedural Aspects of
Assertion of Claim of State Responsibility

Diplomatic Protection and Representations

Secretary of State Henry A. Kissinger, in an address to the Conference of Tlatelolco, Mexico City, February 21, 1974, said the following with respect to espousal of claims and dispute settlement:

Some of our most troublesome problems have arisen over differences concerning the respective rights and obligations of private United States firms operating in foreign countries, and the countries which host them. These differences are based largely on differing conceptions of state sovereignty and state responsibility.

On the one hand, in keeping with the Calvo doctrine, most nations of this hemisphere affirm that a foreign investor has no right to invoke the protection of his home government. On the other hand, the United States has held that nations have the right to espouse the cause of their investors if they believe they have been unfairly treated. This conviction is reflected in the legislative provisions of the Gonzalez and Hickenlooper amendments.

Realistically, we must admit that these two elements cannot be easily or quickly reconciled. But the United States is prepared to begin a process to this end and to mitigate their effects. Even before a final resolution of the philosophical and legal issues, we are ready to explore means by which disputes can be removed from the forefront of our inter-governmental relations.

In our private meetings I shall make specific proposals to establish agreed machinery which might narrow the scope of disputes. For example, we might consider the establishment of a working group to examine various procedures for fact finding, conciliation, or the settlement of disputes. Other approaches are possible, and I shall welcome the views of my colleagues. Let me affirm here that a procedure acceptable to all the parties would remove these disputes as factors in United States Government decisions respecting assistance relationships with host countries. We would be prepared to discuss with our Congress appropriate modifications of our legislation.

Dept. of State Press Release, No. 62, Feb. 21, 1974, p. 5; the Dept. of State Bulletin, Vol. LXX, No. 1812, Mar. 18, 1974, pp. 262-264. The Hickenlooper Amendment, which is Section 620 (e) (2) of the Foreign Assistance Act of 1961, is cited below (pp. 512-513). The Gonzalez Amendment was enacted into law on Mar. 10, 1972, as Section 21 of the Inter-American Development Bank Act (P.L. 92-246), as Section 12 of the International Development Association Act (P.L. 92-247), and as Section 18 of the Asian Development Bank Act (P.L. 92-245). These Sections provide that the U.S. Executive Directors of the named Banks and the International Bank for Reconstruction and Development, are to vote against any loan or other utilization of the funds of the Bank (or Association) for the benefit of any country which has

(1) nationalized or expropriated or seized ownership or control of property owned by any United States citizen or by any corporation, partnership, or association not less than 50 per centum of which is beneficially owned by United States citizens;

(2) taken steps to repudiate or nullify existing contracts or agreements with any United States citizen or any corporation, partnership, or association not less than 50 per centum of which is beneficially owned by United States citizens;

or

(3) imposed or enforced discriminatory taxes or other exactions, or restrictive maintenance or operational conditions, or has taken other actions, which have the effect of nationalizing, expropriating, or otherwise seizing ownership or control of property so owned;

$2

Substantive Bases for International Claims

Certain Nuclear Incidents

Public Law 93-513 (88 Stat. 1610), approved December 6, 1974, is a Joint Resolution of Congress assuring compensation for damages caused by nuclear incidents involving the nuclear reactor of a United States warship. The text of the Resolution is as follows:

WHEREAS it is vital to the national security to facilitate the ready acceptability of United States nuclear powered warships into friendly foreign ports and harbors; and

WHEREAS the advent of nuclear reactors has led to various efforts throughout the world to develop an appropriate legal regime for compensating those who sustain damages in the event there should be an incident involving the operation of nuclear reactors; and WHEREAS the United States has been exercising leadership in developing legislative measures designed to assure prompt and equitable compensation in the event a nuclear incident should arise out of the operation of a nuclear reactor by the United States as is evidenced in particular by section 170 of the Atomic Energy Act of 1954, as amended; and

WHEREAS Some form of assurance as to the prompt availability of compensation for damage in the unlikely event of a nuclear incident involving the nuclear reactor of a United States warship would, in conjunction with the unparalleled safety record that has been achieved by United States nuclear powered warships in their operation throughout the world, further the effectiveness of such warships: Now, therefore, be it