Proceedings of the Workshop - United Nations Office for Outer ...

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98 EXPANDING GLOBAL REMOTE SENSING SERVICESfundamental points regarding expanding global remotesensing services.4 For it is how these fundamentalconditions develop that will set the stage for scientificand industrial applications of current and plannedservices as well as international standardization andsystem ownership and management.This paper is set out in five parts, the first of whichis this introduction. The second section raises thequestion of the status of the United Nations PrinciplesRelating to Remote Sensing o f the Earth from Space(Principles)5 in international law and takes the positionthat the Principles are relevant to the expansion ofglobal remote sensing services and have acquired theforce of law due to the practice of remote sensingnations. This section concludes that Committee on thePeaceful Uses of Outer Space (COPUOS) ought totransmit the terms of the Principles into a Treaty.The paper's third section addresses the increasingrestrictions on access to remotely sensed data and takesthe position that the openness principle upon whichmuch of remote sensing law is based is being weakened.The restrictions are being implemented for commercialand military reasons. Whether or not these will inhibitthe expansion of global remote sensing services will, inthe long-term, depend on two things: which services arebeing considered and a complex dynamic of politics,economics, and technology interacting with the law.This section concludes that these evolving situations aremaking, and will continue to make, important changesin the legal landscape of remote sensing services andwill require on-going attention.The long-term archiving of global data is raised,but not addressed in depth in section four. It servesmore as an invitation to the space law community tomount a long-term, concerted effort to consider thismost complex - and important - remote sensing activity.A concluding section follows.It should also be noted that this paper sometimes,of necessity, crosses the line between law and policy.This is appropriate, in the author's opinion, for tworeasons. First, law is codified policy and it isappropriate for lawyers to consider not only what thelaw is, but where it might, or ought to, develop. Thesecond reason is that the remote sensing activities of thelast three decades have been executed at national levelson the basis of policy as much as, perhaps more than,law, and, in many cases, the more flexible, dynamicnature of policy has moved ahead of the law.A final introductory note: although this paper raisesonly three fundamental points, each one contains withinit a wide array of topics. Therefore this paper is alsobroad and multifaceted and covers many aspects of theremote sensing legal landscape. This is intentional andit is respectfully presented with the hope that individualmembers of the space law community will finddifferent, important issues that interest them.The United Nations Principles Relating toRemote Sensing o f the Earth from Spaceare relevant to the expansion of globalremote sensing services and haveacquired the force of law. COPUOSought to consider transmitting theirterms into a Treaty.4 "Remote sensing services" is a broad term that can include awide variety of space-based and Earth based activities. Theyrange from government, private, and hybrid space segments,ground station developers and vendors, retailers of value-addeddata and information products, data and information brokersand distributors, hardware and software developers andvendors, and more. For purposes of this paper, all of these areincluded when the term "remote sensing services" is usedunless otherwise indicated. In the author’s view, this isappropriate since the paper is addressing fundamental pointsthat impact the expansion of all global remote sensing services.5 G.A. Res. 41/65,42 UN GAOR Annex (95th plenary meeting)at 2 UN Doc A/RES/41/65 (1987). [hereinafter, Principles],Relevance of the Principles to theexpansion of global remote sensingservicesProviding services, either by the public or privatesector, requires law. The stability and predictabilityafforded by law and legal institutions are cornerstonesof a successful commercial and public environment.This is particularly true in the case of new services thatare, by nature, global. In the case of remote sensing, the
EXPANDING GLOBAL REMOTE SENSING SERVICES 99move toward commercialization and the integration ofgovernment systems are being premised on a patchworkof international and domestic legal regimes that cancreate an uncertain legal environment.6 This increasesthe risk already inherent in applying a new technologyto a global service.As the oldest form of specific, international remotesensing law, the Principles have particular importancein defining the international remote sensing legalregime. Adopted to guide the behavior of nations, thePrinciples also hold nations responsible for the remotesensing activities of their non-governmental entities andfor activities conducted through internationalorganizations to which they are parties.7 The legislativehistory of the Principles contains extensiveconsideration of the role of private remote sensingactivities8 and they have, over the years, becomeincreasingly used, in practice and legislation, to guidethe behavior of private, public and hybrid publicprivateentities.9 The successful expansion of globalremote sensing services into the 21st Century requiresthat the status of these very important Principles, andthe extent of their application, be clarified andestablished.Clarity of the Principles' status is particularlycrucial in the expanding context of a hybrid publicprivate,international commercial remote sensingenvironment. The aerospace industry worldwide haslong been mired in controversies over different nationalphilosophies regarding the necessity or desirability ofpublic-private separation, direct and indirect subsidies,and trade practices. For remote sensing services, theseissues can be expected to be even more acute due to anumber of factors. First, major remote sensing nationslike France, Canada, India and Japan already operateremote sensing systems based on mixed public-privateinstitutions and principles.10 And even in the UnitedStates, where separation of public and privateinstitutions has been the policy, government-ownedspace corporations are being considered as cost-savingmeasures.11 Second, in leading remote sensing nationscommercial technology applications are clearlyemerging from a government-funded, militaryheritage.12 Third, post-Cold War national budgets arecreating pressure to forge public-private partnershipseven in nations historically more committed to theseparation of these sectors.13 Indeed, some observersopine that private companies that have alreadycommitted hundreds of millions of dollars indevelopment will only be able to survive with6Harr, Michael & Kohli, Rajiv, Commercial Utilization ofSpace an International Comparison of Framework Conditions.at 69-71 (1990); Spector, Leonard S., Not-So-Open Skies, 19906 Space Policy 17 (1990).7Principles, supra, note 5, Principle XIV.8 The individual debates and discussions in COPUOS and theLegal Sub-Committee regarding the commercialization of theLandsat system, SPOT and the role of privately funded systemsare simply too numerous to cite. For a discussion of some ofspecifi c questions regarding the role of private sector in remotesensing, see, Christol, Carl, Q. Space Law: Past. Present andFuture. 83-88, (1991)9 Land Remote Sensing Commercialization Act, 15 U.S.C.§§ 4201 - 4292 (1984) [hereinafter, Commercialization Act],Now repealed and replaced with Land Remote Sensing PolicyAct, 15 U.S.C. §§ 5601 - 5642 (1992) [hereinafter, Policy Act].;RADARSAT Data Policy , Document Number RSCA-PR0004,Sec. 10.1 b., (Canadian Space Agency), July 13, 1994, at 11.;ESA EnvisatData Policy, ESA/PB-EO (97) rev. 3, Paris,(European Space Agency), 19 Feb. 98.10 Bourely, Michel, "National Space Legislation in Europe,"AIAA, (1988). Mssr. Bourely notes a range of space servicesand activities that are a complex mixture of nationalorganizations, non-governmental agencies, and privatelycapitalized companies. This is a useful perspective for thispaper.11 Space News, NASA Considers Forming GovernmentCorporation, April 5, 1999, at 1, col. 1.12 Some systems with either a military technology heritage orwhich have been discussed as being able to provide a militaryheritage for commercial systems include Lewis, Clark, Helios,Eros, Orbview 4, RADAR1.13 Commercial Space Act of 1998, Public Law 105-303 (1998);Programs include Earth Observations Commercial ApplicationsProgram and the data buy program at NASA Stennis SpaceCenter.
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ST/SPACE/2Office for Outer Space Af
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IntroductionThe Workshop on Space L
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CONCLUSIONS AND PROPOSALS OF THEWOR
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SESSION ONEExisting United Nations
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EXISTING UNITED NATIONS TREATIES: S
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SESSION EIGHTMaintaining the Space
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MAINTAINING THE SPACE ENVIRONMENT 1
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220Session 3: Wednesday. 21 July. 1
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223Annex IITHIRD UNITED NATIONS CON
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