U.S. national security and government regulation of commercial remote sensing from outer space

Air Force Law Review, Wntr, 2001 by Michael R. Hoversten

Outer Space Treaty, supra note 22, at Art. VI.

(31.) Outer Space Treaty, supra note 22, at Art. VII.

(32.) Liability Convention, supra note 24, at Art. II.

(33.) Liability Convention, supra note 24, at Art. III.

(34.) Outer Space Treaty, supra note 22, at Art. VIII.

(35.) Registration Convention, supra note 23, at Arts. II, III.

(36.) Registration Convention, supra note 23, at Art. IV.

(37.) UN Remote Sensing Principles, supra note 12, at Principle I(a).

(38.) C.Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 721 (1982) [hereinafter CHRISTOL]. Progress in the area was begrudgingly slow primarily due to disagreements concerning State sovereignty rights and the freedom of outer space. During the discussions, two major disputes arose, the first regarding prior consent of the sensed State and the second regarding the right to access and disseminate remotely sensed data. See, e.g., id. at 722; DEVELOPMENTS IN SPACE LAW, supra note 18 at 294-298; H. DeSaussure, Remote Sensing Satellite Regulation by National and International Law, 15 RUTGERS COMPUTER & TECH. L.J. 351, 354-355 (1989) [hereinafter Remote Sensing Satellite Regulation].

(39.) See DEVELOPMENTS IN SPACE LAW, supra note 18, at 294-298; Remote Sensing Satellite Regulation, supra note 38, at 354-355; LAUNCHING AND OPERATING SATELLITES, supra note 7, at 215-216.

(40.) In 1974, the Soviet Union and France announced their position, through a draft convention submitted to the UN, that consent prior to remotely sensing a State's territory was unnecessary. However, it was their view that any data obtained must be provided to the sensed State on mutually acceptable terms and that the distribution of any data to third parties would require the permission of the sensed State. LAUNCHING AND OPERATING SATELLITES, supra note 7, at 216. The U.S. and some Western European countries took the position that no consent of any kind was required. That is, it was their position that remote sensing activities did not require prior consent of the sensed State and any data obtained via remote sensing was freely distributable to third parties on a nondiscriminatory basis without the permission of the sensed State. This position is commonly referred to as the "Open Skies" policy and is founded in the principle of freedom of outer space. The U.S. argued that pursuant to the freedom principle under an early UNGA Resolution, and Article I of the Outer Space Treaty, States are free to conduct remote sensing activities in space. See UNGA Resolution 1721 (XVI), International Co-Operation in the Peaceful Uses of Outer Space, Dec. 20, 1961, GA Res. 1721(XVI). Furthermore, they asserted that remote sensing activities are beyond the sovereign control of any state pursuant to Article II of the Outer Space Treaty. See LAUNCHING AND OPERATING SATELLITES, supra note 7 at 218. Hence, the Open Skies position regarding remote sensing is that all States may be sensed without prior consent. The collection and distribution of data, however, occurs on earth, not in space so the same argument cannot be maintained. Regarding the ground segment, the U.S. relies on Article 19 of the Universal Declaration of Human Rights which provides that "[e]veryone has the right to ... seek, receive and impart information through any media and regardless of frontiers." Universal Declaration of Human Rights, G.A. Res. 217 (III), UN GA OR, 3d Sess., Supp. No. 13, at 71, UN Doc. A/810 (1948). The U.S. claims that any restrictions on the right to collect and distribute remotely sensed data on earth would violate Article 19. Thus, the U.S. maintains that remotely sensed data may be freely distributed without the permission of the sensed State.