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

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]