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

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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.
EXPANDING GLOBAL REMOTE SENSING SERVICES 115Changing legal separation o f the military andmany of the bilateral and multilateral agreements towhich the IJPS members are also parties.130 IJPS Agreement, supra note 82, Article 2.civil sectors under United States domestic lawThe question of legal standards used in the UPS and European lawAgreement arises when considering that data denial canbe invoked when a crisis or war situation "exists, or isdeveloping" that "poses an immediate and seriousthreat" in which an adversary "might use" the data to bedenied. The purpose of legal standards is to create adegree of certainty in the application of the law andlegal instruments. How much certainty these standardsData denial either as a result of encryption or for"military purposes" will occur within the context of thechanging legal relationship between the military andcivil sectors in both the United States and Europe. Thischanging context is an important element in consideringthe long-term status of data access laws and policies.provide will depend on a variety of political and legalfactors. The agreement addresses certainty in temporalterms by providing that "data denial will stop 120 daysafter it starts"128 and "shall be extended" only after theentire United States Cabinet level decision-makingprocess is repeated.129At the dawn of the Space Age, PresidentEisenhower chose to keep the United States military andcivil space programs separate. This decision is codifiedin the 1958 National Aeronautics and Space Act (NASAct).131 To execute this decision military assets wereThe free and unrestricted exchange oftransferred to NASA pursuant to an Executive Order.132Despite this statutory separation, the line betweenmeteorological data has been the practice amongnations, and even with important recent changes, "freeand unrestricted" is still the primary standard.Therefore the introduction of a data denial policy forthe UPS does raise new questions. A policy that allowsdata denial from a merged civil and military system canbe viewed two ways: either as a policy that establishesa compromise to meet national emergencies by a systemthat is otherwise presumed to operate openly; or, as amilitary and civil space has never been absolute.133 Andin the intervening decades since then, budget andpolitical pressures have consistently blurred thestatutory line between civil and military spaceactivities.134 Specifically regarding remote sensing,there is statutory authority requiring NASA and DoD"to enhance programs of remote sensing research anddevelopment."135 Yet, the legal separation continues asa basic feature of United States domestic space law.136policy that establishes a compromise that inhibits dataaccess and makes a completely open system unlikely.These competing interpretations are further complicatedby the fa c t that although data denial is not specificallyapplied to European instruments, their data will beencrypted as standard operating procedure, and, ineffect denied, to all except those with authorized access.This makes the question of whether the UPS willoperate in a manner consistent with the principle of13142 U.S.C. §§ 2451-2484, Public Law 85-568, 72 Stat, 426.National Aeronautics and Space Act of 1958, Sec. 102(b).132 Exec. Order No. 10,783, (1958).133 NAS Act § 203 (a) (12), For example, the NASAAdministrator may "with the approval of the President,[...]enteropenness multidimensional. Significantly, the IJPS into cooperative agreements" which assign military personnel toperform NAS Act functions "to the same extent as that to whichagreement recognizes the parties' intent to "continuethey might be lawfully assigned in the Department of Defense."planning"130 indicating that this issue and its impact onglobal remote sensing services is an evolving one.134 This "blurring" takes many forms from previously militarydedicatedShuttle missions to joint funding. There have alsobeen formal entities established like the Aeronautics and128 IJPS Agreement, supra note 82, Annex 1, para. 5.129 IJPS Agreement, supra note 82, Annex 1, para. 6.Astronautics Coordinating Board for DoD/NASA Cooperationand other groups.135 15 U.S.C. § 1531136 NAS Act, § 102. b.
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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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48low earth orbit. This commercial
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220Session 3: Wednesday. 21 July. 1
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223Annex IITHIRD UNITED NATIONS CON
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