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

114 EXPANDING GLOBAL REMOTE SENSING SERVICESsome of the data from various IJPS instruments will fallunder the "fundamental principle" of "broadening andenhancing the free and unrestricted exchange ofmeteorological and related data and products."120 Asregards the Principles, "remote sensing" is defined as"the sensing of the Earth's surface"121 which places theUPS outside of their scope. However, the UPSAgreement recognizes "the essential role [of]environmental satellite data... [for]...other sectors of theglobal Earth observation and science usercommunities"122 and states that the parties arecooperating "to continue and improve the operationalmeteorological and environmental forecasting andglobal climate monitoring services."123 In so far as thePrinciples do require remote sensing to "promote theprotection of the Earth's natural environment" the use ofIJPS data under some circumstances perhaps thoserequiring an interdisciplinary scientific approach couldconceivably place them within some limited applicationof the Principles.124 However, if and when the IJPS, orits components, are operated for "military purposes"then arguably, it, or they, become a military systemwhich removes them from these laws and presumablydata denial can occur. The question then becomes, as amatter of law, what must happen for the system tomake the transition from a civilenvironmental/meteorological monitoring system to aone used for "military purposes"? The IJPS Agreementbegins to answer the question as an event defined as a"crisis or war."The definition of "crisis or war" used in the UPSAgreement is broad and covers activities "which couldrange across the spectrum of military operations"including regional conflicts, peacemaking orground segment are included.120 Resolution 40, supra note 19.peacekeeping, humanitarian operations and shows offorce "to reflect international disapproval."125 Wars arethreats to a nation's supreme interests and ultimately,every State that participates in merged systems, eitherdirectly or through intergovernmental organizations, hasa national legal definition of "war." And although thedata denial provisions only apply to some United Statesinstruments, these definitions may or may not becompatible and could lead to political, as well as legal,differences when data denial is invoked for "militarypurposes".At the United States domestic level, whatconstitutes a "war or crisis" is increasingly the subjectof the most intense legal controversies. And becausethese controversies are subjects of acute domesticinterests, they are often driven more by domestic forcesthan international ones which further complicates thequestion of legally using a shared international asset. Inthe United States, for example, although theConstitution clearly provides that "Congress shall havePower To...declare War"126 the 20th Century hasengendered war-like activities without the legalrequirement of a formal declaration. This has generatedlegislation that attempts to define the proper Executive-Legislative authority in these activities.127 However, noUnited States President has accepted theconstitutionality of this legislation since it was passed.If data denial is invoked for any number of activitiesthat "range across the spectrum of military operations"it can become part of a larger, Constitutional issueconsidered to have more domestic importance than theuse of the UPS itself.Other definitions used in the UPS will also requirecomplex legal analysis involving a number of differentbodies of law. For example, the definition of"adversary" could require the application of the laws ofwar and the evolving law of terrorism. The definition of"critical data" will catalyze the domestic polices and121 Principles, supra, note 5, Principle 1.122 IJPS Agreement, supra note 82, Preamble.123 IJPS Agreement, supra note 82, Article 1.124 Principles, supra note 5, Principle X, regarding "avertingany phenomenon harmful to the Earth's natural environment.”125 UPS Agreement, supra note 82, Annex, 1.126 U.S. Constitution, Art. 1, section 8.127 50 U.S.C. § 1541. The War Powers Resolution.