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

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

Article I of the Outer Space Treaty requires the "exploration and use of outer space ... be carried out for the benefit and interests of all countries and shall be the province of all mankind." [26] Article I further provides that "[o]uter space shall be free for exploration and use by all states without discrimination of any kind, on a basis of equality and in accordance with international law ..." [27] Under Article II, "[o]uter space ... is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." [28] These are the so-called "common interest," "freedom" and "non-appropriation" principles. These three principles are relevant to remote sensing in relation to the collection and distribution of data. Unlike airspace, outer space is free and is not subject to State sovereignty. States cannot dictate the activities of others in space even when orbiting above their territory. The common practice of States has been to allow free passage of space objects over their territories. Thus, it can be argued that remote sensing satellites are free to collect data from space regarding any portion of the Earth. Additionally, since space activities must be carried out for the benefit and interest of all mankind, many states argue that any such data collected should be made available to everyone. [29]

Article VI of the Outer Space Treaty is of particular importance. [30] Under Article VI, State parties bear international responsibility for national activities in outer space including any activities by non-governmental entities. States must assure any activities carried out by private entities are done so in conformity with the Treaty. Furthermore, the activities of non-governmental entities require authorization and continuing supervision by the appropriate State. Hence, Article VI essentially requires that States regulate the space activities of non-governmental or private entities.

Article VII of the Outer Space Treaty is unique in international law in that it holds States liable for damage caused by private entities in their space endeavors. [31] The 1972 Liability Convention is an expansion and clarification of Article VII of the Outer Space Treaty. Under the Liability Convention, States are absolutely liable for damage caused by the space objects of private entities on the surface of the earth or to an aircraft in flight. [32] For damage caused to a space object itself, or to persons or property on board a space object, located other than on the surface of the earth, or to an aircraft in flight, fault based liability attaches. [33] As such, States must be sure to address liability concerns in any regulatory scheme.

Finally, pursuant to Article VIII of the Outer Space Treaty, States that place space objects on their national registry retain jurisdiction and control over such objects [34]. The 1975 Registration Convention expands and clarifies Article VIII, requiring that launching States maintain a national registry and that the Secretary General of the UN maintain an international registry. [35] Under Article IV of the Registration Convention, States must furnish the Secretary General with specific information regarding each space object maintained on its registry. [36] States comply with these requirements by, in turn, regulating private entities involved in space activities.