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

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

2. United Nations Remote Sensing Principles

After a lengthy debate over whether remotely sensed data should be internationally available on a nondiscriminatory basis and the alleged right of prior consent on the part of the sensed state, the UNGA adopted the UN Remote Sensing Principles in the form of a non-binding Resolution on January 22, 1987. [37] Initial discussions regarding remote sensing from outer space tool place at the First UN Conference on Peaceful Uses of Outer Space in Vienna in 1968. [38] In the early 1970s, Argentina, Brazil and other Developing countries asserted that each State has permanent sovereignty over natural resources within their territory and that any information acquired regarding those resources was included in the concept of sovereignty. [39] Thus, developing countries argued that the consent of the sensed State was a prerequisite to any space-based remote sensing of their sovereign territory. Moreover, they maintained that if remote sensing did occur, they were entitled to any data generated and that the distribution o f such data to third parties was impermissible without the consent of the State sensed. [40]

The U.S. has long been a proponent of the international availability of remotely sensed data on a nondiscriminatory basis, commonly referred to as the "Open Skies" policy. The UN Remote Sensing Principles (UN Principles) largely embody this policy. [41] Although non-binding, the U.S. commercial remote sensing regulatory regime recognizes them, for the most part, as international obligations and requires those licensed in the U.S. to comply with the data accessibility principle. The UN Principles apply only to "natural resources management, land use, and the protection of the environment," meteorological and military (reconnaissance) applications are not included. [42] In a nutshell, the UN Principles permit States to freely sense and distribute data from outer space without the consent of the sensed State. Moreover, it is now well-established customary international law that remote sensing may be conducted without prior consent. [43]

Under the UN Principles, remote-sensing activities must be carried out for the benefit and interest of all countries and in accordance with international law. [44] Additionally, remote-sensing activities must be conducted with respect to all States' permanent sovereignty over its wealth and natural resources, and may not be conducted in such a manner detrimental to the legitimate rights of the sensed State. [45] These particular UN Principles are merely a restatement of terms from the Outer Space Treaty or other well-established customary international law. Furthermore, States conducting remote sensing are required to provide technical assistance on mutually agreed terms and are encouraged, preferably through regional agreements, to establish data collection, storage, processing and interpretation facilities. [46] The UN Principles also make it clear that the protection of the earth's environment and the protection of mankind from natural disasters are of extreme importance. [47]