Revista Brasileira de Direito Aeroespacial
Why Isnt There an International Convention
on Remote Sensing? *
José Monserrat Filho**
"The success of remote sensing global services expansion in the twenty-first century calls for the application of such important principles and their recognition "
Joanne Irene Gabrynowicz,
Special Studies Department, University of North Dakota, USA (1).
The shortest and most direct answer to that question is: it is because the US and some of their allies do not want it. And they dont because they understand that the existing principles perfectly meet the needs of this important activity regulation.
This standpoint was once more confirmed at the Legal Sub-Committee of the United Nations Committee on the Peaceful Uses of Outer Space ( COPUOS) 40th Conference, held in Vienna, Austria, from 02 to 12 April 2001. The US Delegation Chief, Stephen Mathias, Assisting Legal Consultant for U.N Affairs, from the US State Department, was clear on the matter.
In his first speech, he insisted in hailing the 15th Anniversary of Principles Relating to Remote Sensing of the Earth from Outer Space, endorsed at the U.N General - Assembly Resolution 41/65 , as of 9 December 1986 (2).
And he explained the reason for his hail:
" Principles Relating to Remote Sensing of the Earth from Outer Space have set fundamental ideas that have helped expanding the civil and commercial use of remote sensing data for the purpose of improving natural resources management, land use and the protection of the environment. First, remote sensing satellites operators are free to collect data from anywhere in the Earth, at any time. Second, these data may be publicly offered on a non-discriminatory basis and on reasonable costs."
What does in fact this declaration mean? It means that the US feel very comfortable towards the Principles Relating to Remote Sensing of the Earth from Outer Space for two main reasons:
- because they allow free satellite remote sensing from anywhere in the Earth, at any time, and;
- because they allow free sale of sensed data, on a "non-discriminatory basis" and on "reasonable costs", on a properly comprehensive and flexible basis which is bound to unexpected or induced political changes, as well as to market fluctuations and manipulations.
Not by chance, at COPUOS Legal Sub-Committee 40th Conference, the US refused the proposal of Greece, supported by several other countries, of studying the evolution of the Principles Relating to Remote Sensing of the Earth from Outer Space towards a treaty.
The idea of elaborating a Treaty from Principles Relating to Remote Sensing of the Earth from Outer Space is as old as the resolution that adopted them 15 years ago. At the enactment of Principles, in 1986, several countries- including one of the largest powers at the time, the Soviet Union judged convenient to state the need for its change into a treaty, which would provide it with an obligatory and broader text.
The 3rd United Nations Conference on the Exploration and Peaceful Uses of Outer Space (UNISPACE III), held in July 1999, in Vienna, recommended in its final report ( 373), the revision of Principles Relating to Remote Sensing of the Earth from Outer Space taking into consideration its possible transformation in a treaty (3).
UNISPACE III presented this and other recommendations after emphasizing that "the role played by the Committee on the Peaceful Uses of Outer Space (COPUOS) and its Legal Sub-Committee as a legal tool responsible for the formulation of the proper and necessary principles and rules that will regulate the outer space had to be strengthened in order to meet the needs of this mankind activity which advances at a steady pace".
Thus, UNISPACE III, the largest and most important intergovernmental conference on space matters, reported the elaboration of a treaty or a convention on satellite remote sensing with the purpose of strengthening COPUOS as the institution in which Space Law framework was created.
To build a new treaty from a declaration of principles would not be something new within COPUOS and within its Legal Sub-Committee. A very significant issue should be stated at this point. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, known as the 1967 Outer Space Treaty, founder document of Space Law, was written on the basis of the 1963 Declaration on the Principles Governing the Activities of States in the Exploration and Use of Outer Space (4).
Thus, it was not a mere transcript of the text. The main ideas of the 1963 Declaration on the Principles Governing the Activities of States in the Exploration and Use of Outer Space were not only kept, but enlarged and developed at the 1967 Outer Space Treaty. The same measure may be followed in the elaboration of a convention on remote sensing. Even though because the 1986 Principles Relating to Remote Sensing of the Earth from Outer Space are outdated, due to the new existing technologies, to the variety of services and products to which they gave birth and to their new and expanding market.
It is not a matter of changing fundamental principles, mainly those which best please the US: freedom for remote sensing the whole world and freedom for selling sensed goods, that are already of international practice, and which was clear at the Workshop on Space Law sponsored by the Space Law International Institute and by the U.N Office for Outer Space Affairs (OOSA), at UNISPACE III, in July 1999, in Vienna (5). In fact, during their 15 years of existence, the Principles Relating to Remote Sensing of the Earth from Outer Space were never questioned by any country.
Therefore this regulation should be provided in such a way that it could only be regularly carried out for the benefit and in the interests of all countries.
The before mentioned Workshop presented the following conclusions on the matter:
"The growing expansion of remote sensing commercial services, the complexity of commercial activities, the effects on the international and scientific cooperation, and the industrial application of services must be taken into consideration in a proper regulating environment. National limitations to data access are appearing. It is advisable that a new paragraph 321 bis be included to the(UNISPACE III) report as follows:
321 bis. The Legal Sub-Committee of the United Nations Committee on the Peaceful Uses of Outer Space must start the elaboration of a Draft Treaty Relating to Remote Sensing of the Earth from Outer Space, on the basis of Principles Relating to Remote Sensing of the Earth from Outer Space (U.N General-Assembly Resolution 41/65, Annex 3, as of 3 December1986), taking into special consideration the growing expansion of remote sensing commercial services and preserving the principle of non-discriminatory data access."
The statement of the Workshop that "national limitations to remote sensing data access are appearing" is extremely important. This is one of the strongest arguments in favor of the creation of a treaty or a convention on the matter that sets forth, among others, fundamental principles and rules for a safe international system, permanent and broadly recognized for remote sensing data access, so as to forbid any unilateral and arbitrary limitation by the states that master technologies and manage the control of main networks.
In spite of this statement, or due to it, the Workshop recommendation did not obtain consensus among countries that would justify its inclusion in the 1st UNISPACE III Resolution "The Space Millenium: Declaration of Vienna on the Space and on the Development of Mankind" nor in its Final Report.
After exhaustive debates and negotiations, the best solution was to include in the Declaration of Vienna , as part of the "strategy with the purpose of facing the future world challenges", especially aiming at the "strengthening and replacement of space activities within the United Nations system" (letter e), "the fostering of the efforts of the Committee on the Peaceful Uses of Outer Space (COPUOS) to provide the development of Space Law, inviting the States to ratify or join the treaties on outer space elaborated by the Committee, and the intergovernmental organizations to accept them, in accordance with the needs of the developing countries and of the countries with transition economies."
The proposal of a concrete mention of the elaboration of a treaty on remote sensing was not admitted and gave rise to the generic and vague reference on " the latter development of Space Law" (6).
The truth is that some developed countries fear that the transformation of Principles Relating to Remote Sensing of the Earth from Outer Space into a convention might bring back old discussions on the matter, for instance, the need of a previous consent to sense the territory of a country or the previous consent of the sensed country to sell images obtained in its territory.
To these countries those conditions would create an undesirable legal effect: Principles Relating to Remote Sensing of the Earth from Outer Space, currently accepted as of international usage, would loose such condition and would become a matter of discussion and dispute within the United Nations.
The German jurists Marietta Benko and Kai-Uwe Schrogl (7) presented a proposal which would serve as a means to avoid this possibility. At first, the Principles Relating to Remote Sensing would be refunded in a treaty practically on the same terms as they are presented today, and, secondly, amending protocols would be written (to the treaty on principles) regarding specific issues, such as the commercial expansion of remote sensing services and the principle of non-discriminatory remote sensing data access , taking into consideration the interest of the sensed countries. In order to ensure additional guarantees, the two German jurists suggest that protocols be first endorsed as UN General- Assembly resolutions and only afterwards transformed into treaties or conventions.
This proposal is questionable. Principles relating to Remote Sensing of the Earth from Outer Space must be detailed and clear. Their current text is much more useful to the sensing countries which have the necessary technologies - than to the sensed ones.
The Principles will only act for the benefit of the sensed countries if they include guarantees which are today absent.
Regarding the sensed countries, for instance, guarantees and the specification of the principle of non-discriminatory access to remote sensing data are surely much more important than the principle itself. To these States, with their current looseness, the sensing countries are clearly favored. Why then should be placed formally amending protocol guarantees and specifications without which the principle does not guarantee any concrete advantage to the sensed countries? What is the advantage of the sensed countries accepting unconditionally too much vague principles?
Because of these issues, Winter Gerd, another German jurist, concluded that the sensed countries were misled in negotiating the 1986 Principles relating to Remote Sensing. He considers that the sensed countries failed in negotiating with the other countries because they gave up their position of full sovereignty without assuring data free access to the other states. At his opinion, the sensed countries might and should have demanded more guarantees of data access when they accepted the principles of allowing remote sensing freedom from anywhere in the Earth and also freedom of selling their data with no previous consent (8).
These 15 years of experience show that implementation of Principles related to Remote Sensing of the Earth from Outer Space place at least the sensed countries in an unfavorable condition.
Wulf von Kries, another German jurist, observes that "no effort was done to adjust the international legal regime to the transforming remote sensing regime" and that " each country with a remote sensing program followed its own independent policy, in some cases openly, and in other cases not so openly, but until now only a country, the US, has preferred adopting a relevant law, without taking into consideration the renew of the international remote sensing regulating order".
He also says that: "the permanent purpose of the US remote sensing policy, since 1984 Landsat Act, has been to reach a balance among the national safety conditions and the domestic commercial interests. Limitations concerning safety have been progressively reduced so as to allow the more intensive participation of the private sector in remote sensing matters. The most different political fields of the US government have been reactive and not pro-active, while trying to keep the US commercial competition in a remote sensing emerging market. This approach brought a significant change regarding the principle of non-discriminatory data access, the touchstone of the US space policy. While the Landsat Act endorsed the demand of non-discriminatory data distribution, meaning that remote sensing private companies could not transform data in property, the 1992 Act on remote sensing made the difference among systems sponsored by public and private funding, forcing operators to make available primary data (only) to the governments of the sensed countries and not to all potential users, on the same terms" (9).
This US practice ignored Principle XII, which states: " as soon as the primary data and the processed data concerning the territory under its jurisdiction are produced, the sensed State shall have access to them on a non-discriminatory basis and on reasonable cost terms. The sensed State shall also have access to the available analysed information concerning the territory under its jurisdiction in the possession of any State participating in remote sensing activities on the same basis and terms, taking particularly into account needs and interests of developing countries."
And he adds: "this allowed private companies in remote sensing activities to start creating their own procedures."
In face of this trend, he states that remote sensing activities should be regulated by three different legal regimes and practically independent: the public, the military and the commercial ones - with no public international law dominating over specific sectors and public interest.
The attempt to equal military and commercial sectors to the public sector breaks the public interest priority, that would usually favor the sensed countries.
Due to these facts if a chance for a new negotiation in this matter should appear something quite unlikely in the near future this might be a unique opportunity to sensed countries negotiating a minimum balance of interests with the sensing countries, which is quite far away from happening.
This balance of interests, it should be noted, is a necessary condition for sensed countries poor in their great majority to reach a free access to the great benefits of space technologies, which are vital for their development.
At current, the biggest task and the largest political challenge of the great majority of states is to win the resistance of the US and their allies to the idea of updating and improving the international space law in general and especially international law concerning remote sensing.
This resistance is the key tool from the political arsenal which sustains monopoly and privilege policies as well as the growing inequalities among countries, with damaging and unbearable effects to all countries, mainly to the poor ones, but also the rich ones, since the world is more than ever globalized.
The sooner this resistance is overcome, the better for the whole international community. A new, vigorous and much more comprehensive phase of advance in terms of space activities might emerge from achieving balanced status, with a larger amount of countries which would have active and pro-active access to space programs and to their results.
This might open the path one day maybe still during this millenium to the transformation of the Earth in a more fair and equal planet to mankind that live in it and make the difference among billions of celestial bodies.
* Work presented at the" Seminar on Remote Sensing and Space Law" , at the X Brazilian Symposium on Remote Sensing, sponsored by the Brazilian Institute of Space Research (INPE) and by the Latin American Society on Remote Sensing and Space Information Systems (SELPER), at Foz do Iguazu, Brazil, from 21 to 26 April, 2001(Back)
**Journalist and professor on Space Law, Vice President of the Sociedade Brasileira de Direito Aeroespacial (SBDA) and member of the Board of the International Institute of Space Law from the Astronautics International Federation. E-mail:firstname.lastname@example.org(Back)
1. Gabrynowicz, Joanne Irene, Expanding Global Remote Sensing Services: Three Fundamental Considerations, Text for Discussion presented at the Workshop on Space Law at the Twenty-first Century, sponsored as a technical forum within UNISPACE III, in Vienna, in July 1999. See Proceedings of Workshop on Space Law in the Twenty-first Century, organized by the International Institute of Space Law with the United Nations Office for Outer Space Affairs, United Nations, A/Conf.184/7, New York, 1999. See also the article " Space Law in the Twenty-first Century", from Monserrat Filho, on the same Workshop, at Revista Brasileira de Direito Aeroespacial, nº79, March 2000.(Back)
2. Space Law Collection of conventions, international acts and other legal documents in force, organized by the Group of Studies on Space Law of Sociedade Brasileira de Direito Aeroespacial (SBDA) and published by the Brazilian Space Agency (AEB) and SBDA, Brasilia, 1977, pages 55-59(Back)
3. Report of the Third United Nations Conference on the exploration and Peaceful Uses of Outer Space (UNISPACE III), Vienna, 19-30 July 1999, A/Conf.184/6, United Nations, New York, 1999(Back).
4. Space Law Collection of conventions, international acts and other legal documents in force, pages 11-17 and 51-54.(Back)
5. Proceedings of Workshop on Space Law in the Twenty-first Century, organized by the International Institute of Space Law with the United Nations Office for Outer Space Affairs, United Nations, A/Conf.184/7, New York, 1999.(Back)
6. The source of this information are the personal notes of the author, who, as member of the Brazilian delegation, participated directly at the discussions on the matter, at UNISPACE II formulation of conclusions.(Back)
7. Benko, Marietta, and Schrogl, Kay-Uwe, Follow-up of UNISPACE III: Possibilities of Strengthening Scope and Application of existing Space Law in the 21st Century ( paper distributed at the Committee on the Peaceful Uses of Outer Space Legal Sub-Committee 40th Conference , held in Vienna, from 02 to 12 April 2001).(Back)
8. Winter Gerd, Access of the Public to Environmental Data from Remote Sensing, paper presented at the International Seminar on Satellite Remote Sensing Techniques for the benefit of the Environment, Strasbourg, France, from 02 to 04 June 1993, and published at ""Droit, Télédetection et Environnement", under the direction of Simone Courteix, France, Sides, 1994, p. 255(Back)
9. Kries, Wulf von, Towards a new remote sensing order? Space Policy 16 (2000, pages 163-166)(Back)
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