Revista da SBDA
Direito Aeronáutico e Direito Espacial

 

 SPACE LAW AND REMOTE SENSING ACTIVITIES

Professor Maureen Williams
National Council for Scientific and Technical Research - Conicet (Argentina).
Chair of the Space Law Committee of the International Law Association (London).
Professor of International Law (University of Buenos Aires).

 

The magnitude of commercial space activities today has brought about winds of change. In the field of remote sensing the shift from strict state sovereignty claims to the commercial implications of the use of outer space indicates, in turn, that national space legislation and registration questions -the latter now on the agenda of the Legal Subcommitte of Copuos (LSC)- become matters of high priority.

One of the most welcomed consequences of that shift to commercial space activities is the weakening of the principle of sovereign immunity. This change will no doubt ease the way for future agreements on the topic, which had been discouraged in the past decades by the risk of a state -acting de jure imperii- invoking a clause of sovereign immunity in the course of the implementatiom of the agreement thus blocking its effectiveness ¹ . This is particularly so insofar as dispute settlement is concerned.

However, disagreement on certain sensitive points still stands between the industrialised and developing world, especially as regards the right of access to data by the sensed state and other related -equally sensitive-issues to be addressed later in this paper.

At this point in time it is therefore essential to determine where we were, where we are now and, in the most realistic terms, where we really would want to be concerning the legal framework to govern remote sensing in the regional and international scenarios. In order to adjust to the changes that will inevitably flow from the present context a brief overview of the background is necessary before evaluating the present state-of-the-art.

I. BACKGROUND TO THE QUESTION

1. From strict state sovereignty to commercial uses of outer space

In the early days of remote sensing technologies the natural reference was Article I of the 1967 Space Treaty under which -in those days at least-the activity was governed by a régime of complete freedom. Yet, even in those early days, a confrontation was dividing the industrialised and developing world. And it is now fair to say that, in a different international context where commercial space activities have reached unprecedented dimensions, this divergence still remains.

Within the United Nations the subject was brought up in 1968 at the First UN Conference on the Exploration and Peaceful Uses of Outer Space (Unispace I) held in Vienna, where the benefits stemming from the new technology were duly evaluated. In 1971 a Working Group was established by UNGA Resolution 2778 (XXVI) to operate within the framework of the LS of Copuos. In those initial stages two draft texts were submitted to the Working Group strongly supporting the right of access to the collected data by the sensed state. One of those texts was presented by Argentina and Brazil, co-sponsored by Chile, Mexico and Venezuela (Doc. A/C.1/10), and the other by France and the Soviet Union (Doc. A/AC.105/PV133, Annex IV). In both texts the underlying idea was that the information obtained by remote sensing satellites should be disclosed to the sensed state only and its right of access thereto should be unlimited. Freedom of dissemination, the document underlined, might affect national interests. Conversely, the United States submitted a working paper whereby a sensing state, collecting data on the Earth environment, should make it available to all on a timely, equitable and non-discriminatory basis (Doc.A/AC.105/ C.2/L.103).

Briefly, the concern of developing countries was not really focusing on the fact of taking high precision photographs of the Earth from outer space but, rather, on the use to be made by third states of the collected data which could lead to highly distorted markets.

State practice, at the time, was mainly confined to data collection for the protection of the environment. However, the advances of science and technology were seen by developing countries as a risk to their sovereign rights.

Be that as it may, the commercial implications of space activities were, at the time, far from the minds of the different parties involved .

2. Winds of change

Indeed the first and most important legal milestone on the international level was the adoption by consensus, in 1986, of the UN Principles on the Observation of Earth from Space² . This was a fifteen-year process which at the end of the day resulted in a compromise within the LS of Copuos given the failure to conclude a binding agreement.

Nowadays it is valid to say that the Principles reflect customary international law and are therefore binding. Yet, they were drafted at a time when the commercial sides of remote sensing had not really been grasped in all their dimension. Proof of this is no doubt Principle I describing the objective of the activity as the improvement of natural resources management, land use and the protection of the environment. An updated description of remote sensing activities is today a high priority.

In spite of the many criticisms directed to these Principles over the years they have, at least, taken unwritten rules of international law into the context of an international instrument and helped to intepret the meaning of some general principles embodied in the 1967 Space Treaty, despite restricting the scope of state responsibility -as worded in article VI of the 1967 Treaty- to remote sensing activities alone.

Shortly after the adoption of the Principles a general feeling began to be perceived whereby the sovereignty issues arising from remote sensing were gradually losing momentum as a result of the growing activity of private entities in space.

At that stage developing countries -albeit careful not to give up sovereign rights in the new areas-began to access the new technology on an increasingly wider scale. The technical aspects of remote sensing and the specific clauses contained in cooperation agreements of regional and bilateral scope appeared to take priority over matters which, in the earlier days, had been highly sensitive. In many ways these agreements were filling gaps left by the 1986 Principles therefore providing an illustrative example of progressive development of the law ³ .

Ever since, winds of change began to blow. In fact, the main feature of the nineties was a clear move towards the commercialisation of space activities. By then developing countries were increasingly involved in the use of remote sensing technologies. Agreements in these days were mostly technical and embodied detailed and specific legal clauses -again, supplementing the 1986 Principles-which enabled technology to develop and provided a more appropriate field for international cooperation to prosper. Nevertheless, the political moment in the nineties did not appear propitious for the revision of the 1986 Principles let alone the drafting of a binding instrument.

The subject was extensively discussed throughout this decade at various international meetings dealing with outer space. First and foremost, the Unispace III Conference held in Vienna in July 1999 which, for the first time, assigned an important place to space industry and commercial activities. Within this major event, the Workshop Space Law for the Twenty-first Century⁴ , organised by the International Institute of Space Law and the UN Office for Outer Space Affairs, devoted one of its sessions to the subject. On this occasion -marked by scholarly presentations followed by stimulating debate and well thought-out proposals- the long-standing confrontation between the industrialised and developing countries was still outstanding. However, the shift from sovereignty approaches to commercial aspects was already clearly perceived.

The disagreement focused particularly on the position advocating full freedom of data collection, distribution and commercialisation vis-ŕ-vis the position supporting the rights of sensed states to access the data collected over their territories and their permanent sovereignty over natural resources which the 1986 Principles only vaguely protected. The predominant opinion at Unispace III was that these Principles were binding on the basis of state practice and the existing opinio juris on the matter.

In the meantime agreements on remote sensing were proliferating, especially in connection with agriculture, water and other resources, as well as environmental protection, and involved actors from both developed and developing states⁵ . These agreements had to cover various issues on which the 1986 Principles remained silent, thus interpreting and shaping the applicable law.

An important milestone of the nineties in the private field was Project 2001, a far-reaching study on the Legal Framework for the Commercial Uses of Outer Space, under the direction of Professor Karl-Heinz Böckstiegel. Work began, towards the end of the nineties, from Köln University jointly with the German Aerospace Centre (DLR), involving experts from all over the world⁶ . The Working Group on Remote Sensing, operating under Project 2001, was of the view that the UN Principles allowed the commercialisation of data collected by remote sensing technologies without restriction⁷ .

This view should therefore be read as meaning that, apart from article VI of the 1967 Space Treaty to rely upon, the only protection afforded to the sensed state was Principle IV stating that the activities should be carried out on the basis of respect for the principle of full and permanent sovereignty of all states and peoples over their own wealth and natural resources and that such activities should not be conducted in a manner detrimental to the legitimate rights and interests of the sensed state⁸ .

Principle IV also contemplates the possibility of participation of developing countries which, at the same time, have become sensed states, in the mutual benefits stemming from this activity.

In addition to the very valuable work carried out from Cologne by the participants in Project 2001, other national research programmes on remote sensing -of clear interdisciplinary characteristics-began to operate in different geographical latitudes. Inter alia, the Universisity of Mississippi School of Law centred its efforts on the subject, presently under the skilful conduction of Professor Joanne Gabrynowicz whose comments we very much look forward to hear.

The National Council for Scientific Research of Argentina, for its part, together with the University of Buenos Aires, is sponsoring a series of Projects on the matter which, as in the case of the Cologne and Mississippi Universities, have clear international implications. Among the conclusions of the latter it was highlighted that the wide margin for interpretation left by the UN Principles was becoming a matter of concern to developing countries. Furthermore, it considered the time was ripe to give some of the most elusive Principles a more precise meaning⁹ .

The Space Law Committee of the International Law Association is addressing the subject since 2002, following its 70^th Conference in New Delhi and has recently reported on the matter at the 2004 Conference in Berlin. The Iberoamerican Institute of Air and Space Law discussed it at its two latest Annual Meetings, and the International Institute of Space Law has repeatedly dealt with the topic in its Annual Colloquia. The general feeling to be drawn from the work of these institutions is that, in spite of the absence of a political will for change at governmental level, it appears wise to have a fresh discussion on the most obscure and controversial UN Principles in the world of today.

I I. The world today: industrialised and developing countries

The new millennium marked the beginning of a somewhat more cautious approach towards the revision of the Principles: the idea of a mere discussion in new light-even without further implications- began to gain ground. This stance appeared more realistic as the political moment continued unfavourable for drastic moves such as having a binding text on the topic. At this point the main concern of developing countries may be summarised as ensuring the right of access to satellite data by the sensed state.

Another emerging problem is no doubt the use of satellite data in international litigations dealing with boundary disputes, of which the recent decisions of the International Court of Justice in Qatar/Bahrein, Botswana/ Namibia and Nigeria Cameroon provide glaring illustrations and show that there is more to it than just procedural questions. The practical problems in using this kind of data as evidence before national and international courts will be addressed under a separate chapter in this paper.

The general feeling in today’s world is clearly reflected in the LS of Copuos. On the one side stand the advocates of a binding agreement on remote sensing and in a more cautious approach- those who favour the review of state practices and the discussion of the Principles in new light, along the lines suggested by the delegations of Argentina, Brazil, Chile, Colombia, Cuba, Ecuador, Greece, Mexico and Perú at the 43rd Session of the Legal Subcommittee of Copuos in April 2004¹⁰ .

At the other end of the spectrum are the United States and Japan who, based on the fact that a good number of developing countries are using the technology and that the Principles are operating well and should therefore not be updated, stand for the principle of full freedom concerning the collection, distribution and commercialisation of data obtained by these means¹¹ .

Both positions -and most of the different shades between them- are based upon solid ground¹². In industrialised countries the doctrine seems inclined to avoid premature solutions, particularly in fields where claims have barely been raised. Moreover, the political will remains unfavourable. In other words, sovereign states prefer the drawing up of guidelines or codes of conduct which could be enshrined in UNGA Resolutions but would still be non-binding. Unless, of course, they are declaring international customary law.

If we look at state practice, in recent years international agreements have frequently envisaged the use of earth observation satellites to supervise the compliance with obligations embodied in their text. This is especially so as regards the protection of the environment. The use of earth observation satellites is envisaged, for example, in the 1992 Convention on Climate Change and the 1997 Kyoto Protocol. Likewise, remote sensing technologies enable the detection of alterations in the levels of the ozone layer with extreme accuracy, at different times of the year and in different points of the stratosphere.

Indeed, arguments advanced by developed and developing countries for and against the need to create new law on the matter will continue to exist. Whatever the outcome, approaches should be careful and should avoid too much detailed regulation which is unlikely to survive the times.

Conclusion: a realistic recommendation is that some of the 1986 Principles be made more precise to be useful in the present state-of-the-art. To this end it is submitted that proposals for the LS of Copuos to discuss the UN Principles in new light with a view to establishing their consistency in today’s world should be given a serious thought¹³ .

I shall now deal with the most controversial Principles and gaps in the law relating to remote sensing. In my comments thereon account will be taken of the findings of the Space Law Committee of the International Law Association between the New Delhi (2002) and Berlin (2004) Conferences, as well as developments in the aftermath and the views of publicists who, in recent times, have centred their efforts on this topic¹⁴ .

I I I. The doctrine

A rewarding experience prior to the preparation of the 2004 Report for the ILA Berlin Conference was the appointment of two specialists -coming from an industrialised and a developing country- to advance their present views on remote sensing in order to have a full discussion and confront their opinions at the Working Session of the Conference. To this end, the Space Law Committee entrusted Mr. Niklas Hedman (Sweden) and Dr. Monserrat Filho (Brazil) who, over and above natural differences, coincided on a number of important points.

Therefore, instead of the epic encounters expected during the analysis of the two positions, an important common denominator clearly surfaced, namely to assess the validity of some of the UN Principles in the present time. The results of this assessment showed some differences but the general conclusions were not so far apart.

In this sense, Hedman’s general approach¹⁵ -which was generally supported- is that there are five provisions in the UN Principles that ought to be enlightened, as follows:

• The definitions in Principle I and their applicability to present and future activities in the field of remote sensing.
• The implications of the phrase "legitimate rights and interests of the sensed state" in Principle IV.
• The scope of Principle XII when stating "taking into account the territoriality, the principle of nondiscrimination and the cost of obtaining data".
• Principle XIII, for the same reason.
• The scope and implications of state responsibility as laid down in Principle XIV.

I shall pause on some of the foregoing issues leading us to four preliminary conclusions reflecting the encountered differences.

In the first place, the very topical issue of validity. According to Hedman the set of Principles provides a balance of interests between the sovereignty of the sensed state and the interest of the sensing state in carrying out remote sensing activities without prior consent. He points out that, in earlier days, the Principles had "common utility" in mind rather than private commercial purposes. Thus, a first preliminary conclusion would be that this balance, in the view of developing countries, is nowadays far from perfect.

Secondly, Hedman believes that, due to their great flexibility, the Principles are still valid as an instrument for international cooperation. Indeed, as previously observed in this paper, most of them reflect customary international law which enables them to survive the times. However, there are controversial areas as well. For instance, definitions, jurisdiction, access to data and marketing thereof, and international responsibility. Let us elucidate further.

Principle I, when defining the objective of remote sensing as the improvement of natural resources management, land use and the protection of the environment is clearly , in Hedman’s view, outdated. Remote sensing applications go nowadays far beyond these initial purposes. For example, the use to be made of the analysed data remains unrsolved. A second conclusion would therefore be that Principle I should be redefined in the interest of consistency with the present reality.

Thirdly, it is clear that the foregoing issues are related, in turn, to Principle XIV on state responsibility, which refers expressly to Article VI of the Space Treaty. States operating remote sensing satellites are, pursuant to that Principle, made internationally responsible for their "activities". It would appear doubtful whether this term applies to remote sensing activities in the sense of the Principles or, rather, to space activities lato sensu as established in Article VI of the 1967 Treaty. Moreover, as Hedman observes¹⁶ , the use of remote sensing data by third parties seems to be excluded.

This brings to mind Bin Cheng’s position on the question which, in practice, simplifies the interpretation procedure. Bin Cheng considers that the sensed state would be more effectively protected by relying on Article VI of the Space Treaty -which makes states internationally responsible for national activities in outer space on the whole- than by Principle XIV which limits the scope of that Article to "states operating remote sensing activities".

Interesting, for its implications, is the discussion recalled by Hedman which took place in the LS of Copuos in 2003 concerning a Working Paper submitted by Brazil ¹⁷ and from which it would result that developing countries are not so worried by the collection, storage, processing and distribution of the processed data but by the use made of the analysed data. This indicates that Principle XIV should be read together with Principle IV which declares that remote sensing activities should not be conducted in a manner detrimental to the legitimate rights and interests of the sensed state. Hedman finds an acceptable balance in Principle IV as it recognises the freedom of exploration and use of outer space on the one hand and, on the other, it provides that remote sensing activities shall be conducted on the basis of respect for the principle of full and permanent sovereignty of all states and peoples over their own wealth and natural resources, with due regard to the rights and interests, in accordance with international law, of other States and entities under their jurisdiction. Yet, in the present writer’s s view, the reading of Principle IV appears too vague to be effective.

Closely linked to the above observations are Principles XII and XIII. The former concerns access to data on the part of the sensed state and, at first sight, does not recognise any special treatment for the sensed state in connection with the distribution of data ¹⁸ . It is supplemented by Principle XIII envisaging consultations between the sensing state and the sensed state, at the request of the latter, and making a call for international cooperation with special reference to the needs of developing countries. A third conclusion would that more precision is needed having in mind that the main concern of developing countries today is the right of access to the collected data on the part of the sensed state.

The interpretation of the term "territory under its jurisdiction", with regard to the access to data in Principle XII, and "territory" in Principle XIII, which limits the consultation possibility to the territory of the sensed state", has caused some initial trouble. In fact, as later observed by Hedman, they should be taken as synonyms on the basis of the drafting history of the Principles which reveals a compromise between states advocating territoriality and states interpreting "national jurisdiction" in a broader sense.

Fourthly, and this recommendation is shared by all, it is essential to be aware of the importance of remote sensing in the implementation of the recommendation of Unispace III - known as Unispace III plus 5 - and the value of the work of the action teams set up by Copuos to this end. In this sense Hedman refers the Committee to the Note by the Secretariat entitled "Input from the action teams for the report of the Committee on the Peaceful Uses of Outer Space Space to the General Assembly at its fifty-ninth session for its review of the implementation of the recommendations of Unispace III"¹⁹. In this light, a fourth -and non-controversial conclusion - points to the need for a proper space to be given to remote sensing activities in the implementation of recommendation Unispace III plus 5, as well as the importance of supporting the task of action teams.

Now for Dr. Monserrat´s proposals to the ILA Berlin Conference.

This expert has provided a complete outlook of the topic, clearly reflecting his position on the need to move towards the adoption of a binding instrument on remote sensing, a goal for which he has struggled for years both on the private and intergovernmental level²⁰ . Nevertheless, an analysis of the compatibility of the validity of the UN Principles in today’s context appears a sensible step forward at this time.

Underlying Dr. Monserrat’s position on the need of a convention on the subject are two basic reasons, viz.

(a) the increasing commercialisation of remote sensing services, and

(b) the preservation of the right of the sensed state to access data without discrimination

Monserrat’s point of departure is the confrontation of traditional principles which, quoting the present writer²¹, he sums up as, on the one hand, freedom of exploration and use of outer space (Article I, 1967 Space Treaty) and, on the other, the principle of sovereignty. When applied to the collected data, this would mean a clash between freedom of information and the need for the prior consent of the sensed state (resulting from the principle of state sovereignty over natural resources).

As Monserrat rightly observes, nothing is said about the role of the private sector in carrying out the Principles. In simple terms, whereas remote sensing technology has rapidly evolved, law-making has come to a halt. Commercial remote sensing companies operate today in the global market in a legal vacuum. This, in his view, is a matter of great concern.

Hereunder some of the shortcomings of the UN Principles underlined by Monserrat. A number of points in common with Hedman’s stances may be easily identified

• Principle I: the definition of remote sensing is very limited and does not include observation, reconnaissance and monitoring activities of productive areas (agricultural, industrial etc.), transportation (railways, motorways, ports and airports), and services (meteorological services and tourism, for example), nor does it include the verification of compliance with international treaties. There is an unwanted vacuum here.
• Principles II and III: they highlight the importance of the availability of remote sensing to all countries. Hence these activities should also be considered "the province of all mankind" and should have a legal system to match such an objective.
• Principle IV: on the protection of the rights and interests of the sensed state. It is essential to outline those rights and duties, undefined in the Principles.
• Principle V: international cooperation and participation of the sensed state in remote sensing activities. The Principle is restricted by the words "such participation shall be based in each case on equitable and mutually accepted terms". This implies that cooperation will be usually dependent on the will of the countries carrying out the activity.
• Principle XII: access to data on a nondiscriminatory basis and on reasonable cost terms should equally include access to the available analysed information on the territory of the sensed state. The drafting of this Principle is obscure and flexible, especially when speaking of a "non-discriminatory basis and on reasonable cost terms", a formula open to wide interpretation.
• Principle XIV: it limits the application of Article IV of the Space Treaty and creates confusion (responsibility for remote sensing activities vis-ŕ-vis responsibility for outer space activities).

All in all, Dr. Monserrat Filho’s main conclusion is the need for a fair and equitable convention to ensure an equilibrium between the technological and economic power of sensing states and the legitimate rights and interests of sensed states which, in this relationship, are the weaker side.

With this in mind the following steps are recommended:

1. Satellite remote sensing activities must be regulated by a special and comprehensive convention elaborated by the Legal Subcommittee of Copuos on the basis of the UN Principles.
2. The convention should clarify, detail and develop the existing Principles and elaborate new ones, if necessary, in order to create a contemporary and effective legal instrument regulating the international use of the most advanced remote sensing technology for the benefit of all nations and, in this way, harmonising the legitimate rights and interests of the sensing and sensed states.
3. The convention should encourage effective and sound cooperation between public and commercial interests in remote sensing activities, which should be organised as a public service.
4. The freedom of remote sensing by satellites must be preserved, and the right of access by sensed states to data concerning their territory and natural resources must be guaranteed in clear terms. This means, inter alia, defining the term "access to data on a non-discriminatory basis and on reasonable costs".

To sum up, the common denominator stemming from the two analysed positions (Hedman and Monserrat) is to ease the way for a further evaluation of the Principles, particularly those they have chosen to underline.

I shall now refer to the views of other experts of great renown who have made valuable contributions to this topic providing sensible ideas. What follows is a summary of the toughts of Professors Christol (USA), Kerrest (France), Venturini (Italy) and Dr Rajan (India)²² .

Professor Christol considers that, on general lines, the UN Principles may today be seen as part of international custom. This author puts forward a few suggestions concerning Principle 1, namely that the definitions should be revisedand the term "remote sensing" enlarged to cover commercial space activities. Likewise Christol remarks that the issue of the right of the sensing state to engage in this activity without the prior consent of the sensed state remains unresolved by the Principles. However, he feels it is perhaps too late now to impose treaty restraints on those practices. As to Dr. Monserrat´s concern on the issue of access to data by developing countries and the principle of non-discrimination, Christol suggests extending the meaning of the word "data" in Principle I both to primary and processed data.

At a later stage Christol mentions the US Commercial Space Act of 1998 (H.R. 1702) which specifies that space science data shall be considered a commercial item and that the focus of US statutes dealing with remote sensing is on commercial subjects. As to the possibility of updating the UN Principles, either with the objective of drawing up a binding international instrument or a set of guidelines, this writer asks himself whether all remote sensing issues should be addressed or would it be more realistic to identify specific issues on which consensus would be more easily achieved? I leave this question open for discussion.

Professor Kerrest, when referring to the provisions laid down in the Principles, uses the word "obligation". This is no doubt an interesting feature when addressing the validity thereof. He observes, inter alia, that the obligation of international cooperation in Principles V and VII is not easy to define and that, in practice, it amounts to an obligation to negotiate but not necessarily to reach agreement. This, naturally, weakens the strength of that commitment. The obligation "to inform" (Principle X) is, in the view of the writer of reference, not a very hard one for the sensing state to implement. Another outstanding question is the access to data on the part of the sensed state and the meaning of the term "reasonable costs" (Principle XII). Both are left to interpretation with the ensuing uncertainties involved in this procedure. For example, does the reasonable cost requirement refer to the market value? Should the term "reasonable" be applied having in mind the possibilities of developing countries? If not, the advantages recognised by sensing states to developing countries would be meaningless. The expression "taking due account of the needs and interests of developing countries" in that same Principle would be useful -albeit rather vague- to argue in favour of the developing world.

As an illustration of the weakness of the 1986 Principles Kerrest quotes an article in Space News (14 April 2003) where Menashe Broder, Imagesat Chief Executive Officer, observes that "the customer tasks the satellite to image what it wants and downloads the image without anybody -including this company- knowing what it is doing". Indeed, this observation is a source of worry where the use of satellite imagery as evidence in court is concerned.

The option of drafting an international convention on this subject is, in Kerrest’s view, somewhat of a "mission impossible" in the present political scenario. As to Principle XIV, he considers it should be read together with the obligation of state supervision stemming from Article VI of the 1967 Treaty.

Dr. Rajan draws from his experience at Copuos during the negotiation of the 1986 Principles, referring to the many difficulties involved in reaching consensus on the text and observing that, unlike contended by many publicists, the main purpose of the Principles was to enable commercial remote sensing satellites to come into being. He observes, en passant, that traditional rights like intellectual property have been substantially damaged as a result of the technological progress.

Concerning Monserrat’s well-known contention that remote sensing should be a public service, Rajan coincides in principle provided due care is taken to balance the commercial and public services in order to facilitate funds from the private sector for innovation purposes. Commerce, he recalls, is basically competitive and requires a certain degree of secrecy.

Professor Venturini coincides on the importance of having a definition on remote sensing activities consistent with the present time. After recalling the many obstacles to be sorted out on the way to consensus within the LS of Copuos, this author pauses on Monserrat’s suggestion that the use of "analysed data" be included in that definition. In her view this idea appears extremely difficult to put into practice as, once the sensed data has been purchased and distributed in accordance with the 1986 Principles, it is doubtful whether its use would need special regulation. Instead this writer suggests filling the gap with national legislation and specific regional or international agreements. Regarding intellectual property questions and patents for satellite sensed data, the rules within the WIPO system may provide useful guidelines.

A concern for privacy as an individual human right stems from Venturini’s comments. This question, she holds, should not be overlooked in any international instrument regulating remote sensing. Principle XIV is considered quite realistic as it confines responsibility to the operation of remote sensing satellites and not to the use of data obtained thereby. A conclusion to the contrary would only be acceptable when the use of the data was a wrongful act under international law.

Interesting information is added by Venturini as regards the situation in Italy where no comprehensive legislation on space activities was ever enacted or, in fact, drafted. The Italian Space Agency (ASI), recently set up, is devoted to research programmes and devoid of commercial purposes.

IV. An outstanding issue of the times: the use of satellite data as evidence before national and international courts.

One cannot escape the fact that this question is a matter of concern in the legal world, particularly in certain instances in court proceedings. Hence, a few words should be said about the problem without, at this point, advancing concrete proposals.

Earth observation satellites are being widely used for a number of purposes in the fields of meteorology, ecology, prevention of natural disasters, detection of underground water, flood and draught areas, the proximity of volcanic eruptions and others. Technology has been operating well and hardly any claims have arisen. Earth observation satellites, for example, are most helpful detecting alterations of the ozone at different times of the year and points of the stratosphere. As observed earlier, they became particularly important for monitoring the compliance with international treaties, such as those relating to the protection of the ozone layer, Climate Change, the Kyoto Protocol and so forth.

Yet, it is in the case of boundary disputes where the new technology brings about not a few problems. On this point I shall address some of the major issues involved.

In the first place let us recall the different stages in the collection of satellite data.

1. Earth observation satellites collect the raw data which they send to ground stations. In this primary state the data has no real value and must be processed.
2. The first step -known as preprocessing- is to rectify radiometric and geometric distorsions.
3. Next, the raw data becomes available in digital form and certain aspects of the picture may be enhanced, at the user’s request, by means of computers.
4. The user may then ask for the classification of the information gathered, bringing together, for instance, similarities and differences.
5. Ancillary information, such as maps, may de added to prove the results of the satellite image ²³ .

An important initial landmark was the Frontier Dispute case²⁴ , way back in 1986, between Burkina Faso and Mali, where the ICJ considered that maps could not constitute a binding document or a territorial title by themselves, whatever their accuracy and their technical value, unless the parties concerned had expressed their acceptance.

The question came to the limelight on the threshold of the new millennium following a number of cases submitted to the ICJ and some arbitration procedures where maps based on data collected by earth observation satellites were produced as evidence and experts called upon for their interpretation.

Far from being merely a procedural matter -which at first sight could be seen as such- the problem has prompted serious studies around the nature of this type of evidence in recent times. It appears on the agenda of a number of international private institutions and national research programmes.

As Professor Kerrest acutely points out, the difficulties concern the very nature of satellite imagery which mainly consists of data and not photographs proper. This point is essential where evidence is concerned. An aerial photograph cannot be modified unless an expert, at a later stage, can prove a falsification. This is not the case when dealing with numbered images that are no more than a list of data which can be modified without a possibility of detection. On this assumption, and taking into account the presently available techniques, it is imperative to supervise the process of obtaining the image from the moment it is collected right upto the time it is used in court²⁵ .

At the root of the question is the fact that, even though digital mapping allows little margin for human error in the production of a satellite image, there is plenty of space for error in the interpretation of the image. Which, in practice, as observed in the BIICL Report²⁶ , means that it is the opinion of the expert and not the earth observation data which is used in court.

Professor Venturini voiced her opinion clearly at the Berlin Conference when stating that internationally recognised standards should be developed in order to validate data and its interpretation. This idea is in line with Professor Christol’s, who has in mind a model statute containing provisions to preserve the integrity of the end product of remote sensing²⁷ . Venturini further added that state practice both in the USA and in European judicial and administrative procedures revealed the crucial aspects and key needs in this area. An interesting precedent in the domestic field -despite its failure to become a law- is a bill on the certification of satellite data submitted to the Italian Parliament in 2001 ²⁸ .

In support of Venturini´s contention Niklas Hedman adds that the use of satellite data as evidence in court proceedings calls for caution on the part of the court. In fact, the remote sensing image submitted is the result of a long chain of measures open to different interpretations²⁹ . Dr. Rajan, for his part, foresees that the use of satellite data in international litigation will become a matter of routine in a not distant future so that some kind of basic rules ought to be developed to smoothen the transition to the new technology ³⁰ .

In South America practice is still scarce. To mention one of the few examples, the Supreme Court of Argentina recently used satellita data in a case concerning flooded areas, in spite of its Procedural Code not envisaging the production of this kind of evidence. This led to a decision of the Supreme Court in the case Terrero v. Province of Buenos Aires³¹ , on 26 February 2002. It concerned damages to a farm owned by Mr. Terrero, the plaintiff, due to the flooding of his property as a result of works carried out in the area by the Province of Buenos Aires. However so, due to the lack of clarity in the law, difficulties are inevitable when assessing the value as evidence of satellite data and digital maps. Therefore, in the event of having to apply the existing legislation to new technologies the process is carried out with extreme care³² . Naturally, in the above-mentioned case the Court was not dealing with boundary disputes.

Eighteen years after the Burkina Faso / Mali case and ensuing ICJ pronouncement the situation is still unclear. The advances of science and technology have led to a completely new international context, which indicates the need for further studies on the topic along the lines of the EOPOLE and APERTURE projects in Europe and of other research groups of the kind in different parts of the world³³ . In general, practitioners acting as agents for States involved in boundary disputes before the ICJ or other international tribunals appear reluctant to accept the validity of any such data as evidence in court proceedings³⁴ .

As described by the BIICL Working Group³⁵ the problemwas, inter alia, illustrated in the boundary disputes decided by the ICJ in recent years between Cameroon/ Nigeria (judgment of 10 October 2002), Botswana/ Namibia (13 December 1999) and Qatar Bahrein (23 March 2001), as well as in the the Yemen/Eritrea arbitration (award of 17 December 1999). In Cameroon/Nigeria, for instance, Nigeria was using satellite imagery in its written pleadings to show the ICJ the location of a certain area. The interpretation of the image made by the parties was conflicting and, instead of having a clarifying effect for the Court, it increased confusion. Hence, what Nigeria saw as a very clear way to prove a straightforward point to the Court had the contrary effect ³⁶ .

In Botswana/Namibia only one satellite image was produced by the latter during the oral presentations after which one of the ICJ judges³⁷ requested the parties to submit more photographs of the area, which they did by providing aerial and satellite images. Another judge³⁸ openly relied on the aerial photography and satellite imagery evidence to determine the main channel of the river Chobar. A third judge³⁹ , in no uncertain terms, discarded the value of this evidence. None of them, however, drew a line between aerial and satellite images along the lines of Professor Kerrest’s concern in his comments to the 2004 ILA Conference, referred to earlier in this chapter⁴⁰ .

From the foregoing it follows that the BIICL Study Group, the ILA Space Law Committee and the views of the publicists today appear to coincide on the need to elaborate international standards on the methods of production of satellite imagery at court. The pillars upon which these standards should be built could be inspired, inter alia, on the three-tier criterion advanced in the BIILC Report, as follows:

• Accuracy of the image or any other end product provided by earth observation data

• Verification of the method by which the satellite data was interpreted so as to confirm the accuracy of the end product, and

• the possibility of satellite imagery interpreters to act as expert witnesses in a court of law ⁴¹ .

Indeed, the above-listed requirements would have to be coupled with a list of renown international experts from where the parties and the court would be able to draw.

Unless these requirements are met it appears unsafe for courts and tribunals to accept remote sensing data as evidence in contentious court proceedings, especially in cases of boundary delimitations.

V. Conclusions and recommendations

During the 2004 Berlin Working Session of the ILA Space Law Committee a number of points were listed by the Chair which reflected the general thinking, at the moment, on the 1986 Principles. These points were taken as basis for further discussion in the forthcoming months.

The list has been reviewed and slighty adjusted for this Rio Workshop. When summarising, on general lines, the views of the industrialised and developing worlds, it intends to reflect what could be considered as some common denominators on remote sensing today. What follows is the series of conclusions and recommendations drawn from this discussion paper to be seen in the context of each chapter to which they relate.

I. The UN 1986 Principles on Remote Sensing are generally considered as declarative of customary international law, and are therefore binding.

II. Remote sensing activities are nowadays of a predominantly commercial nature.

III. Having in mind that the participation of private entities in space activities is constantly growing, it seems opportune to have a fresh discussion on the Principles with a view to identifying gaps and providing interpretation criteria.

IV. Principle I defines the objective of remote sensing in a way inconsistent with today’s world scenario.

V. Principles II, IV, XII, XIII and XIV are too vague to be effective in the present international context.

VI. The Principles are silent on a number of important aspects of remote sensing today, inter alia, the distribution, dissemination and commercialisation of data collected by earth observation satellites and subsequently processed. Furthermore, the right of access to data on the part of the sensed state is not clearly defined.

VII. The doctrine remains divided on the need to proceed towards the drafting of a binding international instrument on remote sensing.

VIII. At the inter-governmental level the general feeling is that premature solutions should be avoided as no serious claims have arisen so far. Hence, the political arena is not favourable for drawing up binding rules.

IX. A realistic course of action at this time would be the enactment of domestic law addressing issues relating to the protection and distribution of data and licensing procedures. This would give greater transparency to remote sensing activities.

X. National laws, in accordance with Article VI of the 1967 Space Treaty, should deal with questions relating to the authorisation and supervision of private activities in space, particularly for the protection of the collected data.

XI. Both industrialised and developing countries provide today examples of national space legislation and regional agreements on remote sensing, thus filling in gaps within the UN Priciples.

XII. International cooperation, in this context, should play a major role, especially in ironing out differences between the industrialised and developing world.

-----------------------------

References

1 Report of the 71^st Conference of the International Law Association, Space Law Committee, Report on Remote Sensing by the present writer, 16-21August 2004, Berlin (presently being printed), www.ila-hq.org (click on "committees").

2 UNGA Resolution 41/65.

3 This issue was anlysed in the Report to the ILA BerlinConference (2004), Space Law Committee, Report by the Chair.

4 Proceedings of the Workshop on Space Law for the Twenty-first Century, Unispace III, Technical Forum, published by the United Nations, New York 2000 (Session 4 on Remote Sensing).

5 See, inter alia, the SABIA 3 cooperation agreement between Argentina and Brasil (CONAE/AEB) signed on 9 April 1996 concerning water resources, agricultural production and related areas. Likewise, SAATCOOP, involving Argentina, Brasil, Mexico and Spain. More recently, in 2002, Argentina and ESA signed an agreement on space cooperation which envisages the protection of data collected by space technologies (Art.4), a question to be put into practice by means of bilateral agreements dealing with intellectual property issues. Also, an agreement known as SIASGE was signed in 2003 between Argentina and Italy. It intends to deal with early-warning systems for natural disasters and shall be composed of nine satellites out of which two will be built by Argentina (www.conae.gov.ar).

6 The book containing the Proceedings of the International Colloquium in Cologne (May 2001) which marked the end of the Project is entitled ‘PROJECT 2001’ - LEGAL FRAMEWORK FOR THE COMMERCIAL USES OF OUTER SPACE, ed. by K.H. Böckstiegel,Carl Heymanns Verlag 2002.

7 See Project 2001, Working Group on Remote Sensing Issues, Toulouse, 28 October 1998.

8 Cf. Bin Cheng, STUDIES IN INTERNATIONAL SPACE LAW, Clarendon Oxford 1997, particularly Chapter 22, pp. 572-597.

9 See Projects TD018 (1998-2000) and D015 (2001-2003), conducted by the present writer, University of Buenos Aires / Conicet. ¹⁰ Report of the Legal Subcommittee of Copuos adopted on 8 April 2004 (Doc. A/AC.105/826), p.21, paragraph 125.

11 Ibid. page 21, paragraph 129.

12 France has always shown a more restrictive approach to the free distribution and marketing of processed data without prior consent from the sensed state. From the early days this country drew a line between primary and processed data. France’s approach to the former was definitely more liberal. See, by the present writer, Reflections and Suggestions on Remote Sensing and International Law (in honour of Professor Karl-Heinz Böckstiegel), ZLW 50. Jg. 3/2001.

13 This was, in fact, the method followed by the ILA Space Law Committee when dealing with the Review of the Space Treaties in View of Commercial Space Activities. The need for changes or adjustments to those Treaties, as reflected in Resolution of the New Delhi Conference, was answered mostly in the negative.

14 It should be noted that the ILA Committee, which reflects the views of a number of experts of note from different parts of the world, is a permanent observer to Copuos and reports annually to this body on the progress and results of its work.

15 Report of the 71^st Conference of the ILA, Space Law Committee, and discussions during the Working Session on 20 August 2004.

16 See note 14 supra. This was thoroughly discussed at the Working Session of the Berlin Conference, to be published shortly in the Conference Report (in book format).

17 A/AC.105/C.2/L.244, Working Paper by Brazil cited by Hedman.

18 See Williams, REFLECTIONS AND SUGGESTIONS ON REMOTE SENSING AND INTERNATIONAL LAW, ZLW 50.Jg.3/2001, pp.409-418, at p. 415.

19 Doc. A/AC.105/L.247 of 23 May 2003.

20 In addition to Dr. Monserrat’s study for the ILA, reflected in the Berlin Conference Report, the reader is referred to other contributions by this author in the various Proceedings of the IISL Colloquia (AIAA) and the Revista de Direito Aeroespacial, SBDA (Brazil), particularly in connection with the X Seminario Brasileiro de Sensoriamento Remoto held at Foz do Iguaçu on 21-26 April 2001.

21 Williams, Maureen, Observing the Earth foom Space in Light of the Principle of Sovereignty, Revista Brasileira de Direito Aeroespacial, N° 82, April 2001, and from the same author Reflections and Suggestions on Remote Sensing and International Law, ZLW 50, Jg. 3/2001.

22 See op.cit.in note 14. Until the ILA Conference Report book becomes available this may be seen in www.ila-hq.org (click on "committees", then click on "Space Law Committee").

23 See inter alia, Harald Ginzky, Satellite Images as Evidence in Legal Proceedings relating to the Environment - A US Perspective, Air and Space Law, Vol. XXV, Kluwer 2000, at p. 115. The problem is addressed by the author from an almost exclusively US perspective and frequently linked to the Fourth Amendment and the right of privacy to establish compatibilities with the use of remote sensing technologies.

24 ICJ Reports 1986, paragraphs 54-55-56.

25 See Kerrest’s comments in op.cit. in note 14.

26 The 2001 BIICL Report entrusted section 8. 5 of its Report (entitled "Using Satellite Imagery in International Litigation - practical experience") on EO Data in the Legal Sector, to Chris Hackford (DJ Freeman), an expert of wide experience in the interpretation of satellite data before the ICJ.

27 Christol’s remarks sent to the present writer and included in the Berlin Report on Remote Sensing.

28Venturini, in her comments to the Space Law Committee Report to the Berlin Conference.

29 Chapters 5 and 6 of the Hedman Introductory Report, circulated to the Space Law Committee members in the second half of 2003.

30 See op.cit. in note 14, chapter C on "The use of Remote Sensing Data in International Litigation"

31This judgment was published in EL DERECHO, Buenos Aires, Argentina, Vol. 198, pp.528-530.

32 See Rodríguez, A., Valor como prueba de los mapas digitales obtenidos por satélites de observación de la Tierra, paper submitted to the XXXIII Meeting of the Iberoamerican Institute of Air and Space Law, Lima (Perú), October 2004.

33 The University of Buenos Aires and the Conicet are sponsoring research of the kind which is presently underway.

34 This was expressed by Sir Francis Vallat, drawing from his rich experience as agent for Qatar in the Qatar / Bahrein case, in a meeting with the present writer in Midhurst, UK, on 17 September 2004.

35 See the BIICL Final Report, EO Data in the Legal Sector, 10 May 2001, at p. 73 et seq.

36 See note 24 supra.

37 Request made by Judge Ranjeva.

38 The UK Judge, Rosalyn Higgins, used this data to determine that the north channel of the Chobe river was, in fact, the main channel.

39 Judge Parra Aranguren from Venezuela.

40The difference relates to the possibility of faking satellite imagery.

41 Ibid, p. 75. Buenos Aires, 27 October 2004

(Volta ao Sumário)

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