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

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102 EXPANDING GLOBAL REMOTE SENSING SERVICESnorms.37 They also represent an intentional affirmationof, and return to, international agreement by consensusfor space technology after a previous departure fromthat process regarding direct broadcasting satellites. Assuch, the Principles represent an intention tocompromise rather than an intention to disagree. Thatcompromise was intended by the drafters of thePrinciples to serve as a first step in the law makingprocess which would eventually conclude in a formaltreaty.38On the domestic plane, the legislation of majorremote sensing nations has authority for thedevelopment of international remote sensing law similarto the way that practices of strong maritime nationsinfluenced the development of international maritimelaw.39 Specific standards contained in the Principleswere incorporated by the United States in its domesticlegislation twice.40 This was done to maintain the publicgood aspects of remote sensing, promote the broadestpossible data use, and to place the United States in afavorable position in relation to nations that arguedprior consent was necessary for remote sensing.41 Thislast point is particularly meaningful in the developmentof the Principles as accepted law. The influence ofU.N. declarations of principles is "strongparticularly...when the solutions included in suchprinciples end...controversies."42A member of the Japanese delegation whichadopted the Principles explains that in Japan, "there isno domestic law or regulation which directly regulatesremote sensing."43 Therefore, the Principles are "treatedas a substantial source of law for remote sensing" and"NASDA's remote sensing activities are surely beingperformed pursuant to these principles."44The Principles are also incorporated into thebilateral RADAR SAT agreement between the UnitedStates and another leading remote sensing nation,Canada, and they set the standard for the parties'cooperation.45 The Principles are specifically referredto as guiding legal principles in the European SpaceAgency (ESA) document governing data form the ERS-1 and ERS-2 satellites.46 The data policy for anotherEuropean satellite, Envisat, was approved by the ESAProgramme Board for Earth Observations andspecifically contains a "Legal Framework" thatmandates "Envisat data shall be available in an openand non-discriminatory way, and distribution of thedata shall be consistent with the United Nations37 Kopal, supra, note 31.38 Report, supra, note 30, at 48.39 DeSaussure, H., Remote Sensing Satellite Regulation byNational and International Law, 15 Rutgers Computer andTechnology Law Journal 352, at 375, (1989).40 Commercialization Act, 15 U.S.C. § 4201 (1984), Nowrepealed and replaced with Policy Act, 15 U.S.C. § 5621(1992).41 "Specifically, the Committee is reluctant to take any actionwhich: 1) could interfere with U.S. Treaty obligations; 2) mightrevive debate in the United Nations about the legitimacy ofremote-sensing without prior consent by the sensed nation; and3) sets a precedent which might lead other nations to imposeincreased restrictions on access to their data from theirgovernment-operated remote-sensing systems." H.R. Rep. 102-539, 102d Cong., 2d Sess., at 53, (1992).42 Kopal, supra, note 31.43 Kawamoto, Chiyoshi, NASDA's Activities in the Field o fRemote Sensing, International Bar Association, 10th BiennialConference of the Section on Business Law, Hong Kong, at 5(1991).44 Id.45 "Data distribution shall be consistent with the UnitedNations Resolution 41/65 of December 3, 1986 on thePrinciples Relating to Remote Sensing of the Garth fromSpace." RADAR SAT Data Policy, Document Number RCA-PR0004, Sec. 10.1 b„ (Canadian Space Agency), July 13, 1994,at 11.46 Principles o f the Provision o f ERS Data to Users, ESA/PB-EO (90) 57, rev. 6, Paris, 9 May 1994, (European SpaceAgency, Earth Observation Programme Board), Sec. 2 GeneralPrinciples, 2.1 Legal Principles, para. 2, at 2.
EXPANDING GLOBAL REMOTE SENSING SERVICES 103Resolution[...]on Principles relating to Remote Sensingof the Earth from Space."47After in-depth, extended deliberations in COPUOSit may be found that some of the provisions containedin the Principles have failed to achieve as high a degreeof acceptance as others. Nonetheless, it is clear that theinternational community continues to expect thePrinciples to provide regulation48 and that thePrinciples, as a whole, have already served to guideimportant remote sensing nations in many of theirpractices.Length of existenceThe Principles are legally binding on nations becausethey have been negotiated, adopted, referenced andpracticed for 25 years.49 TIROS, the first civilianremote sensing satellite was launched in 196050 and thefirst remote sensing legal proposal dates back to 1970.51Remote sensing practice and law have continued sincethen. It is widely recognized that long periods of timeare unnecessary to establish custom; that politics52 and47 ESA Envisat Data Policy, ESA/PB-EO (97) rev. 3, Paris,(European Space Agency), 19 Feb. 98 at 8-9 (1998).48 International Space University, Toward an IntegratedInternational Data Policy Framework fo r Earth ObservationsWorkshop Report, ISU/REP/97/1, at 8, (1996).49 American Society for Photogrammetry and Remote Sensingand the American Bar Association, Earth Observation Systems:Legal Considerations for the '90s, at 127 (1990).50 OTA, supra, note 22 at 4.51 Argentina: Draft International Agreement on ActivitiesCarried Out Through Remote Sensing Satellites Surveys o fEarth Resources, U.N. Doc. A/AC. 105/C.2/L.73 (1070) inReport o f the Legal Sub-Committee on the Work o f Its NinthSession (8 June - 3 July 1970) to the Committee on the PeacefulUses o f Outer Space, U.N. Doc. A/AC. 105/85 Annex II, at 2-14(1970).52 McDougall, Walter A., The Heavens and the Earth - APolitical History of the Space Age, at 118 - 124, 187, (1985).law53 can forge instantaneous international custom. Inlight of this, the on-going, multidecadal record ofcontinuous use of the Principles is a particularlycompelling factor in their acceptance as law.Starting in 1974,54 nations engaged in theformulation of the Principles for a period of 12 years,which ended with their adoption in 1986. Some of thespecific provisions contained in the Principles, like theright to overfly a state, date back even further to 1957,which is "the very beginning of space activity."55 Otherswere intentionally designed and developed by thepractice of leading remote sensing nations. In the caseof nondiscriminatory access, the United States andother remote sensing nations engaged in customarypractice, including entering agreements and establishingprocedures for data dissemination another practicecontained in the Principles to support the position thatdata acquisition from space is a legally permitted "use"under the Treaty on Principles Governing the Activitieso f States in the Exploration and Use o f Outer Space,including the Moon and Other Celestial Bodies (OuterSpace Treaty).56Customary law is established by refraining fromaction, as well as by taking action. Prior to the adoptionof the Principles, remote sensing nations declined tomake data available to a sensed State on a preferredbasis or to seek permission from a sensed State todisseminate data to a third party. It is important to notethat these practices were not prohibited by the53 Report, Environmental Aspects o f Activities in Outer Space -State o f the Law and Measures o f Protection - InternationalColloquium, 16 J. Of Space Law 93, (1988).54 G.A. Res. 3234, (XXIX) (1974).55 ABA, supra, note 27, at 127.56 Office of the White House Press Secretary, WeeklyCompilation o f Presidential Documents, Presidential Directive,vol. 14, at 1135, Presidential Directive, June 2 6 , 1978[hereinafter, Office of the White House Press Secretary]; Treatyon Principles Governing the Activities of States in theExploration and Use of Outer Space, Including the Moon andOther Celestial Bodies, Jan. 27,1967,18 U.S.T. 2410, T.L.A.S.6347,610 U.N.T.S. 205 (effective Oct. 10,1967), [hereinafter.Outer Space Treaty]
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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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3between public and private law and
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6provide for the application of int
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8obstacles that impede ratification
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SESSION ONEExisting United Nations
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EXISTING UNITED NATIONS TREATIES: S
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48low earth orbit. This commercial
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POSSIBLE INTERNATIONAL REGULATORYFR
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POSSIBLE INTERNATIONAL REGULATORY F
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SESSION EIGHTMaintaining the Space
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220Session 3: Wednesday. 21 July. 1
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223Annex IITHIRD UNITED NATIONS CON
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225No Name Address E-Mail27. Ersfel
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