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

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110 EXPANDING GLOBAL REMOTE SENSING SERVICESWhen Israel persuaded the United StatesGovernment90 to restrict remote sensing companiesfrom acquiring and disseminating remotely sensed dataof Israel, industry argued correctly, thatnondiscriminatory access was being selectively applied.It argued further again, correctly that the United States'concession to Israel was a precedent that eroded thefuture application of the principle for industry.91 Toargue that technical system characteristics and/orbusiness practices makes legally required data"unavailable" for purposes of nondiscriminatory accesswas to turn the tables. The industry put itself in thesame position as the Government in the Israeli case:applying selective application of nondiscriminatoryaccess. Industry advocated the very result it hadattempted to prevent. Should industry selectively applynondiscriminatory access, any future appeal to theprinciple on its own behalf will ring false and bejustifiably ignored. This is of particular importancebecause the statute that prohibits imaging of Israel alsoholds the potential of additional imaging restrictions of"any other country or geographic area designated by the90 Rep. No. 104-278,104th Cong., 2d Session, S. 1745,National Defense Authorization Act for Fiscal Year 1997.Section 1044: PROHIBITION ON COLLECTION ANDRELEASE OF DETAILED SATELLITE IMAGERYRELATING TO ISRAEL AND OTHER COUNTRIES ANDAREAS.(a) COLLECTION AND DISSEMINATION- No departmentor agency of the Federal Government may license the collectionor dissemination by any non-Federal entity of satellite imagerywith respect to Israel, or to any other country or geographic areadesignated by the President for this purpose, unless suchimagery is no more detailed or precise than satellite imagery ofthe country or geographic area concerned that is routinelyavailable from commercial sources.(b) DECLASSIFICATION AND RELEASE- No departmentor agency of the Federal Government may declassify orotherwise release satellite imagery with respect to Israel, or toany other country or geographic area designated by thePresident for this purpose, unless such imagery is no moredetailed or precise than satellite imagery of the country orgeographic area concerned that is routinely available fromcommercial sources.91 NOAA Public Meeting, Licensing of Private Remote SensingSpace Systems, Washington, D.C. (June 14,1996).President."92 Establishing nondiscriminatory accessavailability as a standard industrial practice will, on theother hand, restore the strength of nondiscriminatoryaccess as a precedent and can help end the one-by-oneexclusion of nations with the single anomalous situationthat now exists with Israel.A licensee is not obligated to make data availableto the sensed state at uniform prices.93 Nor is makingdata available to be equated with giving data away forfree. The licensee is permitted to seek "reasonable termsand conditions"94 which implies market rates. Regardingthe expansion of global remote sensing services,applying the sensed state provision to industry,increases them. The provision prohibits a companyfrom entering into an exclusive contract that requireswithholding data from a sensed state. It therefore can92 S. 1745, 104th Cong., 2d Session, Authorizing AppropriationsFor Fiscal Year 1997 For Military Activities Of TheDepartment Of Defense, For Military Construction, And ForDefense Activities Of The Department Of Energy, To PrescribePersonnel Strengths For Such Fiscal Year For The AimedForces, And For Other Purposes,Section 1044 PROHIBITION ON COLLECTION ANDRELEASE OF DETAILED SATELLITE IMAGERYRELATING TO ISRAEL AND OTHER COUNTRIES ANDAREAS.(a) COLLECTION AND DISSEMINATION- No departmentor agency of the Federal Government may license the collectionor dissemination by any non-Federal entity of satellite imagerywith respect to Israel, or to any other country or geographic areadesignated by the President for this purpose, unless suchimagery is no more detailed or precise than satellite imagery ofthe country or geographic area concerned that is routinelyavailable from commercial sources.(b) DECLASSIFICATION AND RELEASE- No departmentor agency of the Federal Government may declassify orotherwise release satellite imagery with respect to Israel, or toany other country or geographic area designated by thePresident for this purpose, unless such imagery is no moredetailed or precise than satellite imagery of the country orgeographic area concerned that is routinely available fromcommercial sources.93 The Landsat Program Management Plan and H.R. 3614. TheNational Land Remote Sensing Policy Act of 1991. HearingBefore the Subcommittee on Environment of the Committee onScience, Space, and Technology, U.S. House ofRepresentatives, 102d Cong., 2d Sess., 208. (1992) at 54.94 Policy Act, supra note 9, at § 5622 (b) (2).
EXPANDING GLOBAL REMOTE SENSING SERVICES 111sell the data at least twice, once to the customer andagain to the sensed state.Although the this particular question of applyingthe sensed state provision to industry arose underUnited States law other nations are also addressing thequestion. Early indications are that they are willing, asa matter of domestic law, to ignore the internationallaw.95 While domestic law is different from nation tonation, the international legal basis of the principleapplies to other remote sensing nations that participatedin the consensus process that adopted the Principles.New international and domestic remote sensing lawsmust evolve to meet the rights, interests and obligationsof private entities. And some principles of remotesensing law, like the principle of openness, are so basicthat they apply to both public and private activities. Theobligation to make data available to sensed statesthrough effective, practical measures is chief amongthese vital principles.level,97 the United States is merging its civil Polar-Orbiting Operational Environmental Satellite (POES)program operated by the National Oceanographic andAtmospheric Administration (NOAA) within theCommerce Department and its military DefenseMeteorological Satellite Program (DMSP) operated bythe Defense Department (DoD) into a merged UnitedStates national system, the National Polar OrbitingEnvironmental Satellite System (NPOESS). This isreferred to as "convergence."98 At the same time, theUnited States POES system is being merged with theEuropean METOP 1 and 2 satellites into the InitialJoint Polar System (IJPS) with the further merging ofthe NPOESS with the METOP 3, creating the JointPolar System, (JPS).99 The guiding principles of UnitedStates convergence are the recognized importance ofoperational environmental data; assured data access;the ability to “selectively deny” critical environmentaldata to an adversary during crisis or war; and ensureddata use by the United States and its allies.Implementation is occurring within the ExecutiveIncreased military restrictions onremotely sensed dataCombining civil and military capabilitiesthrough system mergers: Convergence, theInitial Joint Polar System and the JointPolar SystemA post-Cdd War, budget-driven policy regardingremote sensing of the weather is combining long-term96civil and military capabilities through system mergersat the national and international levels. At the national9 5Israeli Defense Ministry Director-General Ilan Biran isreported to have required, as part of a study for considering acommercial photoreconnaissance satellite, a "black-list ofcountries to whom the commercial satellite's photographs wouldnot be sold." Ha'aretz, supra note 17, at B3.96 As points of reference, for purposes of this paper, the InitialJoint Polar System time frame is 2009 - 2013 and the JointPolar System time frame is 2020 - 2025.97 Although this section addresses activities in the UnitedStates and between the collective nations of Europe and theUnited States, merging civil and military functions into a singlesystem is also being considered by other individual nations likeItaly and may also be the trend for other nations. Space News,Italy Backs Navigation, Small Launch Efforts, April 5, 1999. at3, col. 1.98 White House Fact Sheet, Convergence of U.S. Polar-OrbitingOperational Environmental Satellite Systems, May 10,1994, at2. The NPOESS is managed by the Integrated Program Office(IPO). Its personnel are from the Department of Defense,NOAA, and NASA. The System Program Director is fromNOAA and the Deputy Director is from DoD. As a tri-agencyprogram there are three senior positions: associate director foracquisition; associate director for technology transition; and,associate director for operations. The Air Force has the lead foracquisitions, NASA is the lead for technology, and NOAA isthe lead for operations. A tri-agency Executive Committeeconsists of the Undersecretary of Commerce for Oceans andAtmosphere, the Undersecretary of DoD for Acquisition andTechnology, and the Deputy Administrator at NASA. It is theCommittee’s responsibility to “coordinate program plans,budgets, and policies and [to] ensure agency fundingcommitments are equitable and sustained.”99 UPS Agreement, supra note 82.
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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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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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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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