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Remote Sensing by Satellite: What Future for an International Regime?

Published online by Cambridge University Press:  27 February 2017

Hamilton DeSaussure
Hamilton DeSaussure*
Affiliation:
University of Akron Law School
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Extract

The combined forces of science and technology have been perfecting a new means of data acquisition which has gone largely unnoticed by the average citizen—a technique so profound in its implications for the improvement of the environment and for the allocation and conservation of natural and human resources that it has been compared to the microscope in its significance and achievement. This new technique is the viewing of the earth’s surface and its surrounding environment by means of sensing devices affixed to a platform orbiting the earth from the near reaches of outer space. Remote sensing by satellite (RSS) has been defined by the UN Working Group on Remote Sensing as a methodology to assist in characterizing the nature and conditions of the natural resources, the natural features and phenomena, and the environment of the earth by means of observation and measurements from space platforms.

Type
Research Article
Information
American Journal of International Law , Volume 71 , Issue 4 , October 1977 , pp. 707 - 724
Copyright
Copyright © American Society of International Law 1977

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References

1 UN Doc. A/AC.105/111, at 2 (Feb. 14, 1973).

2 Mooneyhan, All You Ever Wanted to Know About Remote Sensing,2-A NASA Earth Resources Symposium 11 (Houston, Texas, June 1975).

3 UN Doc. A/AC.105/195, at 9 (March 1, 1977).

4 Battelle Laboratories Research Report, Survey Of Users Of Earth Resources- Remote Sensing Data 51, 70, 96 (1976) [Hereinafter Battelle … Survey].

5 In Ohio for example, Landsat data will be used for recreational land use planning, flood plain management, and strip-mine reclamation monitoring. In Alabama, it will be used for monitoring and predicting water quality degradation. Governor Andrus of Idaho decided in late 1976 to establish a state funded operational capability to use Landsat data in managing the state's resources Statement of Bradford Johnston, Associate Administrator for Applications, NASA, Hearings Before the Sub-comm. on Science and Space of the Senate Coram, on Commerce, Science, and Transportation,95th Cong., 1st Sess. 3 (March 3, 1977).

6 Id.2.

7 Id.6 (Feb. 25, 1977).

8 Id.

9 Galloway, E., Earth Resource Satellites: Hearings Before the Senate Comm. on Aeronautical and Space Sciences, 93rd Cong., 2d Sess., 292, 293 (1974)Google Scholar.

10 Bernstein&Stierhoff, Precision Processing of Earth Image Data,64 Amer. Scientist 500-08 (1976).

11 Statement by Stephen Doyle, U.S. Representative to the Scientific and Technical Sub-Comm. of the UN Committee on the Peaceful Uses of Outer Space (COPUOS’), Press Release USUN W-8 (77) (Feb. 18, 1977).

12 Information from the Librarian, EROS Systems Data Center, Sioux Falls, South Dakota (March 2, 1977). See alsoPamphlet, EROS Data Center, U.S. Dept. of the Interior, Geological Survey (USGS Inf.-74-43).

13 Bernstein&Stierhoff, supranote 10, at 501.

14 Id.at 503. See alsoDoyle, Remote Sensing by Satellitein N. Matte&H. D E - Saussuhe, Legal Implications Of Remote Sensing From Outer Space 67 (1976).

15 Battelle … Survey, supranote 4, at 17. A substantial amount of earth photography and imaging was done in the NASA Skylab program (1973-75) with some high resolution photography having a resolution of 17 meters. Letter to the author from S. Doyle, Deputy Assistant Administrator for International Affairs, NASA (May 27, 1977).

16 Treaty of Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies. 18 UST 2410, TIAS No. 6347, 61 AJIL 644 (1967) doneJan. 27, 1967.

17 Arts. I&III.

18 Arts. VII, VIII,&X.

19 See, e.g.,GA Res. 626, 7 GAOR, Supp. (No. 20) 18, UN Doc. A/2361 (1952) (United States voted against); GA Res. 1803, 17 GAOR, Supp. (No. 17) 15, UN Doc. A/5217 (1962) (Vote: 97 in favor, 2 opposed, 12 abstentions, United States voted in favor); GA Res. 2158, 21 GAOR, Supp. (No. 16) 29, UN Doc. A/6316 (1966) (Vote: 104 in favor, 6 abstentions, United States abstained).

20 See statement of the Brazilian delegate to the COPUOS Legal Sub-Committee, 13th Sess., UN Doc. A/AC.105/C.2/SR.220, at 86 (May 27, 1974); statement of the USSR delegate, id.at 98; statement of the Czechoslovakian delegate, id.at 99.

21 GA Res. 217, UN Doc. A/810, at 71 (1948).

22 See alsoInternational Covenant on Civil and Political Rights, GA Res. 2220A, 21 GAOR, Supp. (No. 16) 52, UN Doc. A/6316 (1966).

23 Convention on International Civil Aviation. 61 Stat. 1180, TIAS No. 1591, 15 UNTS 295, doneDec. 7, 1944.

24 Fauchille, , Régime Juridique des Aérostats, 21 Ann. De L'instttut De Droit International 296 (1906)Google Scholar.

25 J. Spaight, Air Power And War Rights 420 (3d ed. 1947).

26 11 LNTS 173.

27 Supranote 35, Art. 36.

28 French Code of Civil and Commercial Aviation of 1955, Art. 28, Transportation and use of photographic equipment may be prohibited by ministerial order. Done by arrêt of April 20, 1926, modified by arrêt of April 28, 1937.

29 As to the United Kingdom, seeAir Navigation Order 1976, STAT. INST. 1976 No. 1783, §78. Shawcross&Beaumont, Air Law C-473 (4th ed. 1977).

30 German Air Navigation Act, Art. 27(2), as amended Nov. 4, 1968.

31 Strafgesetzbuch(St GB) (German Criminal Code) Art. 109g(2), as amended by the Law of July 25, 1964, Bundesgesetzblatt (BGB1) I.S. 529 (1964).

32 German Air Navigation Act, supranote 30, Art. 1(2).

33 Supranote 7, at 3.

34 For a discussion of the various theses as to the boundary between airspace and outer space, see synoptic table of proposals, UN Doc. A/AC.105/C.2/7 (May 7, 1970) and UN Doc. A/AC.105/C.2/SR, 279 (April 4, 1977). See alsoS. Lay&H. Taubenfeld, The Law Relating To Activities Of Man In Space 39-48 (1970).

35 Many states, including the United States, believe peripheral surveillance conducted from international airspace or from the high seas is permissible under international law. SeeU.S. Air Force Pamphlet 110-31, at 2-6, para. 2-5e (Nov. 19, 1976): It is common practice for military aircraft to fly in international airspace adjacent to the national airspace of other states for purposes of photographing and otherwise observing activities within the national airspace or territory.

36 The problem of unauthorized or pirate broadcasts from the high seas or from airspace prompted the European Agreement for the Prevention of Broadcasts Transmitted from Stations Outside National Territories of January 22, 1965, 634 UNTS 239. That agreement refers to broadcast stations installed on board ships, aircraft, and other floating or airborne objects (Art. 1). The agreement does not cover spaceborne objects.

37 Pikus, Possibility of Technical Control Over Resource Surveying from Space,INT. Inst, Of Space Law Of The Int. Astronautical Fed., Procs. 16th Colloquium On The Law Of Outer Space 147 (Baku, USSR, Oct. 7-13, 1973).

38 Schmdit, Clark,&Bernstein, A Search for Sulfide Bearing Areas,2-A Nasa Earth Resources Symposium, supranote 2, at 116-17.

39 See generally,67 ALR 2d 444 (1959). Recovery for Unauthorized Geophysical or Seismograph Exploration or Survey.

40 Morley, Remote Sensing Satellites, What Do They Measure?in Matte&Desaussure, supranote 14, at 15.

41 Schmidt, et al., supranote 38, at 112-21. The USSR has taken multispectral photographs of the earth at an altitude of 250 km. from its orbital station SALYUT-5 to obtain new information about hydrological characteristics of the Volga delta. Professor Bolchakov of the Soviet Union says remote sensing has discovered potential oil-bearing areas. Un Dept. Of Pol.&Sec. Affairs, Monthly Survey Of Selected Events In The Peaceful Exploration Of Outer Space 10 (Feb. 1977).

42 Bradford Johnston, Associate Administrator for NASA for Applications, recently testified before Congress that new instrumentation for remote sensing proposed for early space shuttle/spacelab missions will enhance mineral and petroleum exploration through increased ground resolution, stereo coverage, and color discrimination. Supranote 5, at 2.

43 Battelle … Survey, supranote 4, at 19.

44 ld.at 20.

45 Schmidt, et al, supranote 38, at 120, 121.

46 State v. Evans, 214 La. 472, 38 So. 2d 140 (1948); Phillips Petroleum Co. v. Cowden, 241 F.2d 586 (5th Cir. .1957); Tinsley v. Seismic Explorations, 111 So. 2d 834 (La. Ct. App. 1959).

47 SeeShell Petroleum Corp. v. Scully, 71 F.2d 772 (5th Cir. 1934), and Picou v. Fohs Oil Co., 222 La. 1068, 64 So. 2d 434 (1953). With the possible exception of Louisiana, courts have thus far held that trespass is required to complete the tort of unauthorized surveys. See generally,67 ALR 2d 444 (1959) and Tinsley, supranote 46.

48 Shell Petroleum Corp. v. Scully, supranote 47.

49 Kennedy v. General Geophysical Co., 213 S.W. 2d 707 (Tex. Civ. App. 1948); see alsoPhillips Petroleum Co. v. Cowden, 241 F.2d 586 (5th Cir. 1957).

50 York v. Stone, 178 Wash. 280, 34 P.2d 914 (1934); State v. Cowen, 231 la. 1117, 3 N.W. 2d 176 (1942); State v. Ensley, 240 Ind. 72, 164 N.E. 2d 342 (1960); Washington Fruit and Produce Co. v. City of Yakima, 3 Wash. 152, 100 P.2d 8, 13 (1940).

51 In re Forsstrom, 38 P.2d 878 (Sup. Ct. Ariz. 1934); Gibbes v. National Hospital Service, Inc., 24 S.E.2d 513 (Sup. Ct. S.C. 1943); United States v. Anderson, 45 F. Supp. 943 (S. D. Cal. 1942); Lott v. Claussens, Inc., 251 S.C. 478, 163 S.E. 2d 615-17 (1968).

52 Washington Fruit and Produce Co. v. City of Yakima, supranote 50.

53 E.I. duPont de Nemours v. Christopher, 431 F.2d 1012 (5th Cir. 1970) (taking unpublished plans).

54 Schloss Tegel, Bundesgerichtshof Zivilsachen (BGHZ) 778 (Sept. 20, 1974).

55 Schleicher, Reimann,&Abraham, Das Recht Der Luftfahrt Kommentar, para. 27, n. 11 (1966).

56 Under Article 905 of the German Civil Code ( Burgerliches Gesetzbuch (BGB)) the owner has the right to prohibit over flight in the airspace over his ground for photography purposes. This is consistent with the decision in Schloss Tegel. See alsoArts. 903 and 1004.

57 W. Phosseh, Handbook Of The Law Of Torts 802-04 (4th ed. 1971).

58 See,Galella v. Onassis, 487 F.2d 1986 (2d Cir. 1973); Estate of Bethiaume v. Pratt, 366 A.2d 792 (D.C. 1976); Froelich v. Adair, 213 Kan. 357, 516 P.2d 933 (1973); 62 AM. JUH. 2d, Privacy§26; Restatement (Second) of Torts 652, (Tent. Draft No. 13) and Note, 39 Mo. L. REV. 647 (1974).

59 See generally, Police Helicopter Surveillance—The Shrinking Reasonable Expectation of Privacy,11 CAL. WEST. L. REV: 505 (1974-75).

60 Dean v. Superior Court, 110 Cal. Rptr. 585, 588, 35 Cal. App. 3d 112, 117 (1973). “Expectations of privacy are not earthbound. The Fourth Amendment guards the privacy of human activity from aerial no less than terrestrial invasion.”

61 Id.

62 id.

63 Id.at 590, 35 Cal. App. 3d 118.

64 In the international legal sense, the term jurisdiction can be understood in two ways: (1) jurisdiction to prescribe a rule of law as to certain categories of persons, events, or places (commonly called prescriptive jurisdiction) and (2) jurisdiction to enforce a rule of law to categories of persons (enforcement jurisdiction), SeeRestatement (Second) Of The Foreign Relations Law Of The United States, §§7(2), 17, and 18. In the sense of this article, jurisdiction is used to mean prescriptive jurisdiction.

65 Art. VIII, Outer Space Treaty, supranote 16.

66 Rivard v. United States, 375 F.2d 882 (5th Cir. 1967), see alsoGerman Cartel Law, Act against Restraints of Competition (GWB) Art. 98(2); Restatement (Second) Of The Foreign Relations Law Of The United States, §§17, 18. As to punishable extraterritorial conduct when it affects governmental interests, see United States v. Pizzarusso, 388 F. 2d 8 (2d Cir. 1968).

67 The S.S. Lotus,France v. Turkey, [1927] PCIJ, ser. A, No. 10.

68 United States v. Alcoa, 148 F. 2d 416 (2d Cir. 1945).

69 Id.at 443.

70 Battelle … Survey, supranote 4, at 47-55.

71 For extensive reference to the early work of the Legal Sub-Committee, see Galloway, Teledetection of Earth Resources by Satellites,in PROCS. 16th Colloquium On The Law Of Outer Space, supranote 37, at 90-102. See alsoReport of the Legal Sub- Committee on the Work of its 15th Sess., UN Doc. A/AC.105/171 (May 28, 1976) and its 16th Sess., UN Doc. A/AC.105/196 (April 11, 1977) and Report of the Scientific and Technical Sub-Committee on the Work of its 14th Sess., UN Doc. A/AC. 105/195 (March 1, 1977).

72 UN Doc. A/AC.105/133, USSR Model Draft Principles Governing Use of Space Technology; Report of the Legal Sub-Committee on the Work of the 13th Sess. (June 6, 1974).

73 UN Doc. A/AC.105/C.2/L.99, Joint USSR-France Draft on Remote Sensing by Satellite (May 27, 1974).

74 Article 5(b) of the joint draft provides: A State which obtains information concerning natural resources of another State as a result of remote sensing activities shall not be entitled to make it public without the clearly expressed consent of the State to which the natural resources belong or to use it in any other manner to the detriment of such State. Documentation resulting from remote sensing activities may not be communicated to third parties, whether governments, international organizations, or private persons without the consent of the State whose territory is affected. Subsection 5(c) permits an exception for information as to natural disasters or other phenomena potentially detrimental to the environment.

75 Argentina draft, UN Doc. A/AC.105/C.2/73 (June 26, 1970); Brazilian draft, UN Doc. A/AC/105/122 (Feb. 4, 1974). The two drafts were later combined. UN Doc. A/C. 1/1047 (Oct. 15, 1974). Subsequently, Chile, Venezuela, and Mexico became cosponsors of the combined draft. Report of the Legal Sub-Committee on the Work of its 14th Sess. UN Doc. A/AC.105/147, at 8 (March 11, 1975).

76 Art. V, UN Doc. A/C.1/1047 (Oct. 15, 1974).

77 UN Doc. A/AC.105/C.2/L.103 (Feb. 19, 1975).

78 Report of the Scientific and Technical Sub-Committee, 14th Sess., supranote 71, at 10.

79 Id.at 11.

80 Id.at 10, 11.

81 Id.at 12.

82 Id. See also,Johnston statement, supranote 5.

83 The Indian satellite will be called SEO (Satellite for Earth Observation).

84 France is proposing a new earth remote sensing satellite called Spot to be launched in 1983. Spot would have better resolution cameras for resources detection than Landsat or Seasat satellites. Monthly Survey Of Selected Events … , supranote 41.

85 The guarantee of freedom of speech and the press is contained in the First Amendment to the U.S. Constitution and the principle is ensconced in numerous Supreme Court decisions, SeeProsser, supranote 57, at 819-33.

86 SeeArticle 26 of the French Constitution of October 27, 1946, which provides that “diplomatic treaties duly ratified and published shall have the force of law even when they are contrary to internal French legislation,” as amended by Article 55 of the Constitution of 1958 “treaties or agreements … have an authority superior to that of [national] laws …” See alsoArticle 66, Constitution of the Netherlands of 1815, as amended. U.S. court decisions hold that a treaty is only equalin rank to acts of Congress (see Article VI, clause 2, of the U.S. Constitution). Therefore, a statute subsequent in time renders a prior inconsistent treaty null and void. Reid v. Covert, 354 U.S. 1,18 (1957). However, under the normal rules of interpretation, treaties and laws will be construed so as to avoid incompatibility where this can be reasonably done. Thus, national laws not specifically extending to outer space, even if enacted after a general treaty on this subject, should not apply in derogation of treaty provisions.

87 The Scientific and Technical Sub-Committee noted that different operational systems can raise problems of compatibility of technical features and complementarity of roles. The Sub-Committee believes the United Nations has a special role in the harmonization of different systems. Report of the Scientific and Technical Sub-Committee. 14th Sess., supranote 71, at 14, para. 56.

88 A recent report of the Comptroller General foresees many questions being raised as the U.S. Landsat system evolves from an experimental project to an operational system. The report recommends that the Director of the Office of Science and Technology Policy, Executive Office of the President, undertake a study as to the government's role in satellite based, remote sensing technology. U.S. Comptroller General, Report To The Congress, Landsat's Role In An Earth Resources Information System (June 10, 1977). See AlsoNational Academy Of Sciences, Report Of The Ad Hoc Committee On Remote Sensing For Development, Board On Scdjnce And Technology For International Development, National Research Council, Resources Sensing From Space: Prospects For Developing Countries (1977) and statement by Eilene Galloway, A Bill to Develop and Establish an Earth Resources and Environmental Information System: Hearings onS. 657 Before the Subcomm. on Science, Technology and Space of the Senate Comm. on Commerce, Science and Technology,95th Cong., 1st Sess. (1977).