Introduction
Space activities conducted by both state and non-state actors are integral to the supply of many day-to-day goods and services. These activities are regulated by a ‘framework of international law that includes multilateral and bilateral treaties and customary international law’ as well as national regulation frameworks through legislation, regulations, and guidelines (Lyall and Larsen at 413). The responsibility of individual States are set out in the ‘hard law’ instruments, which in turn empower States to develop their own national frameworks (Lyall and Larsen at 414). Remote sensing is one such space activity that is governed by ‘soft law’ instruments in the international legal arena, as well as some national instruments (Smith and Doldirina at 241). Remote sensing activities cover the process of satellites gathering ‘raw observational data’ which is then processed and developed for purposes such as Earth observation services, ranging from topographical mapping, weather forecasting, environmental trends and national security operations.
The concerns for the future of remote sensing regulation is adapting to the rapidly changing industry of remote sensing, with advancing technology and the increase of private actors involved in these space activities. A lack of homogeneity amongst legal frameworks leading to uncertain data quality and negative impacts on the utilisation of remote sensing data arising from this internal regime, calls for reform to enhance remote sensing regulation.
Current Regulation
All activities whether carried out by State or non-State actors, are subject to the binding rules in the Outer Space Treaty. Article VI of the Outer Space Treaty establishes that the States ‘bear international responsibility for national activities in outer space… carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.’
Remote Sensing Principles
In addition to the Outer Space Treaty, the Remote Sensing Principles were developed to ameliorate tensions between sensing States and sensed States regarding the acquisition and dissemination of information by removing restrictions ‘on the dissemination of data and information’ and giving ‘advantage to developing countries’ through equitable participation, training, and assistance provisions (Mosteshar at 146).
Overall these principles aim to promote and strengthen international cooperation with regards the remote sensing, and ensure such activities are in compliance with binding treaties. An initial concern with this governance instrument as identified by Mosteshar at 148, is that on a narrow reading of Principle I, this instrument may not accurately govern the activities of commercial remote sensing. As some commercial activities fall outside of the purposes of ‘improving natural resources management, land use and the protection of the environment’, it can be argued that the Principles do not regulate these activities. As Smith and Doldirina identify, commercial activities are subject to the regulatory approach of the launching state, or the lack thereof, which creates inconsistency in the approach to regulating remote sensing at all stages of the supply chain. These divergences in governance have impacts on the availability of data contrary to the Principles, especially due to competing copyright laws, licensing schemes, information transfer regimes and product development constraints.
Disaster Charter
The Disaster Charter’s main objectives are to create cooperation and participation of States through remote sensing activities in order to anticipate and manage potential disasters, and facilitation the provision of ‘emergency assistance or reconstruction’ operations. It creates mechanisms for the supply of data and information in a unified way in pursuit of this purpose: Mosteshar at 153.
This instrument does not establish any customary binding laws on all States, and specifically establishes practical mechanisms for utilising space data in disasters. It does not seek to regulate the activities of remote sensing holistically.
National Frameworks
As Smith and Doldirina identify, particularly active spare faring States such as the United States, Canada, and Germany, with established satellite programs, have dedicated national legislative instruments which regulate remote sensing activities. Other States such as Australia do not directly regulate remote sensing activities at all. Domestic legislation seeks to exercise ‘sovereign jurisdiction over their nationals’, in regards to their activities in outer space and their own territories (in line with the States’ international obligations): Smith and Doldirina at 248.
An example of a dedicated remote sensing governance regime is Canada’s Remote Sensing Space Systems Act (2005). The legislation covers remote sensing space activities that involve one or more remote sensing satellites and their operational and data facilities. In comparison to the Remote Sensing Principles, this regulatory system would apply to a greater number of satellites activities out of or in connection with Canada. This regime seeks to protect created end of the line products for which the remote sensing was conducted to create (s 2). Whilst an excellent regime for the facilitation of commercial participation in remote sensing, this is contrary to a degree with principles of international cooperation and open data sharing.
The US Land Remote Sensing Commercialization Act (1984) establishes a truer reflection of these principles, ‘by requiring private remote sensing operators to make data available to all potential users on the same terms’, enacting the Remote Sensing Principles attempts to create international cooperation and level the playing field of all actors interested in sensed data: Johnstone and Cordes at 25.
The German Satellitendatensicherheitsgesetz (2007) (SatDSiG), specifies the general requirements and regulations for operators of satellites and data providers, in the primary interest of national security and also commercial certainty for sensed data. This framework promoting large scale commercial activity. Compared to the United States system which pursues the purpose of ‘public good’ when it comes to the dissemination of data in its national legal framework, the German framework focuses more on protecting security sensitive data, regardless of their public or private funding (Schmidt-Tedd and Kroymann at 103-104).
As Smith and Doldirina note (at 261), the systems compared demonstrate how the lack of a homogenous international governance framework creates disparity in the application of various principles across jurisdictions. Ito explains (at 145) that inconsistent legal regulation creates barriers to effective commercial utilising of data and negatively impacts the reliability and authenticity of data for other uses such as evidence in court, climate change monitoring, and timely responses to disasters. National regimes often don’t exist to further the purposes of the international Principles, but rather focus on facilitating national interests and protecting States from liability (Ito at 300).
Suggested Models
The lack of uniform standards across entities involved along the supply chain further restricts the integration of data in order to develop products, creating legal uncertainty for actors wishing to utilise data for purposes which aren’t consistently addressed across the different governance requirements. As Ito identifies, a consistent legal framework is necessary for the successful regulation of the supply and use of remote sensing data, and creates legal certainty for the commercial market.
Binding Treaty
The enforceability of the Remote Sensing Principles is limited. They constitute a general resolution of the UN General Assembly, which is itself non-binding, but forms part of the body of customary international law due to extensive adherence in practice by States. They are silent on a number of relevant issues to the effective regulation of remote sensing such as liability, technological advancement, copyright and data integrity. Therefore they are not ‘an effective instrument to manage modern sensing activities and… all the legal questions they encompass’ (Tronchetti at 525). Lyall and Larsen suggest (at 373) that the preferable model for ensuring homogeneity in remote sensing governance, is to create an updated treaty based on the Remote Sensing Principles.
However, Lyall and Larsen (at 374) highlight that this method may be impracticable as ‘attainment of a common mind’ may be difficult amongst the international community. This kind of consensus ‘does not imply unanimity amongst the parties’ and results in vague legal instruments designed to placate the competing interests of the parties. Further, the likelihood that in such a complex and disparate political climate between the sensed and the sensing States, a binding treaty rising from the Remote Sensing Principles is unlikely.
Model National Framework
Purdy highlights several policy requirements that are arguably the easiest to implement through national legislative regimes. The existing legal framework is out of touch from the modern applications and capabilities of remote sensing data, which Purdy suggests can be rectified through amendment of the Principles themselves or the implementation of new national laws with a ‘greater emphasis on regulating EO activities and the technologies themselves” (at 418).
This model law could address the public/private balance in regards to space activities, and ensure alignment of these interests to the overall obligations of States under the Outer Space Treaty. In addition, it can put forward a model of licensing and regulation to ensure that technology development and real world commercial, state and public applications are governed not only appropriately under the Remote Sensing Principles but in line with other States as they are more widely adopted.
Whilst not an enforceable instrument, this would go towards capacity building and education of States with regards to best practice and increase the global knowledge and legislative baseline for governing remote sensing activities.
Comprehensive International Policy
A holistic recommendation that incorporates the above suggestion of a national model law, is the expansive development of international remote sensing policies and review bodies in order to amend the weaknesses in the existing legislative framework. Ito proposes an ‘unambiguous and comprehensive regime’ regulating the access, utility and use of data to ‘supplant current inadequate remote sensing regulations’.
As Ito sets out, the comprehensive international policies would include a comprehensive data policy looking to address common access of data by limiting copyright restrictions to data generated through intellectual input. Further, this policy will address supply chain integrity issues, through best practice data registration, analysis and identifiable sealing. Comprehensive international policy can overcome the issue of liability which the current Principles regime is silent on. The weakness is that soft law may never successfully implement this consistently across jurisdictions, which is an advantage for a proposed treaty.
These policies would be actively co-ordinated by a UN agency such as the Committee on the Peaceful Uses of Outer Space (‘COPUOS’) in order to facilitate information access, provide data access services beyond specific disaster related programmes, regulate registration of common sealing for integrity and copyright purposes, and further build capacity and cooperation amongst States (Ito at 308). This works towards generating State buy-in and consensus that will likely lead these policy regimes down the path of becoming customary law.
Conclusion
It’s evident that the existing legal regime of regulating remote sensing activities is dated and inapplicable to current capacities. Each recommendation seeks to ameliorate the short comings of the existing regime in order to facilitate open access, integrity of data, and wider usage of data and mitigate liability.
The shortest road toward achieving homogeneity in the governance of remote sensing activities is to convert the Remote Sensing Principles into a binding treaty. However, this doesn’t automatically cure the flaws in the existing regime. The Principles themselves are dated and any treaty derived from them would require significant review and consensus. A model law approach would establish a swifter baseline for regulation of remote sensing activities. However, this would not ameliorate much of the disparities in the regulation of activities, as major space faring States are unlikely to overhaul their national regimes. As Ito explains (at 311), a comprehensive policy regime revising the existing framework presents an opportunity for the UN COPUOS to actively engage with all States and level the playing field. Moving forward, this proposal could make meaningful steps towards legal coherence across jurisdictions regarding remote sensing.
Megan Lee (BA) is a penultimate Juris Doctor student at the University of Western Australia with an interest in international law, regulatory compliance and all things outer space.