外层空间遥感法律制度浅析.docx

外层空间遥感法律制度浅析

　　Premature Legal Framework of Remote Sensing from Outer Space
　　From the introduction of technical doctrines， Remote sensing satellites make it possible to gather information on mineral resources， weather and climatic changes， as well as resources management and it can be drawn a conclusion that remote sensing is a human activity which has already been practice in connection with common interests all over the world for scores of years. Initial discussions regarding remote sensing from outer space took place at the First UN Conference on Peaceful Uses of Outer Space in Vienna in 1968. 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. 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 of such data to third parties was impermissible without the consent of the State sensed.
　　Actually， following the launch of the first civilian remote sensing satellite in 1972， developed as well as some developing countries had been demanding some special legal regime， significantly since 1978， when the Working Group set up under UNCOPUOS finally finished their draft of 17 principles. “Events in the Working Group may well have been a straw in the wind for a trend that was soon to become apparent in another forum. This trend clearly reflected the mounting influence of developing countries and the pressure of their combined weight in international affairs. It was manifest in the Second UN Conference on the Exploration and Peaceful Uses of Outer Space ， which was convened in Vienna in August 1982.” However， if the misgivings entertained by some Western industrialized powers about possible controversy regarding the interpretation and application of some of the potential principles treaty， were ignored， the ultimate result would be completely different. After a lengthy debate on the Conference， the Principles Relating to Remote Sensing of the Earth from Space ， which was annexed in UN resolution 41/65， was approved and adopted unanimously on December 11th， 1986.
　　These final 15 principles， general speaking， recognize the great benefit possibly derived from remote sensing and also the opportunities potentially arising from the misuse. After all， it is understandable for a UN resolution， in and by itself， being not legally binding or not leading to serious conflicts. Rather， it‘s been highlighted in the ensuing discussion for a couple decades. Before focusing on possible controversial issues， a glance at those unlikely for dispute is necessary. Apart from the technical definition ， basically， those principles， as reiterations of already accepted principles of outer space law， in particular， supervised under or even copied verbatim et literatim from 1967 the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space， including the Moon and Other Celestial Bodies ， are candidates of disqualification for controversy. For example， Principle II， “Remote sensing activities shall be carried out for the benefit and in the interests of all countries” ， III， “shall be conducted in accordance with international law” ， and IV， “irrespective of their degree of economic or scientific development and stipulates the principle of freedom of exploration and use of outer space on the basis of equality” . These particular UN Principles are merely a restatement of terms from the Outer Space Treaty or other well-established customary international law. In a sense， such principles might not escape the characteristics of obscurity or ambiguity， either of which， however， is not a unique issue to the level of remote sensing framework but to the level of international space law and does not refer to the emergency of divergent textual interpretations of such resolution.
　　Additionally， the same as foregoing cases， to provide an added protection for the sensed state， Principle IV adds that 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 ， even though the issue of sovereignty of sates over their own natural resources， including information derived from remote sensing regarding such resources had been one of the most bothersome issues for many years during the drafting process and has served as a stumbling block to achieving consensus ， which will be discussed hereinafter. Besides， “[A]n associated principle， lacking expectations of future controversiality， is the principle that a State carrying out remote sensing programs is to inform the　Secretary-General in accordance with Article IV of the Registration Convention and Article XI of the Outer Space Treaty” ； “Also， the principle relating to the promotion of the protection of the Earth’s environment and disclosure of information that is capable of averting any phenomenon harmful to such environment as well as the principle applicable to the promotion of the protection of mankind from natural disasters and the transmittal of relevant information to affected States.”　Hence， 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.
　　In contrast to those foregoing principles， there are plenty of possible areas where differences of interpretation may arise. First of all， the UN Principles apply only to “natural resources management， land use， and the protection of the environment，” media， meteorological and military applications are supposed not included .Thus it is conceivable that news organizations may disregard the entire Principles if strictly interpreted from a literal standpoint. And also， the Principles do not apply to military reconnaissance or surveillance. Such kind of identification in narrow sense was contributed to those sufficiently broad terms in the context of the Principles， in avoidance of failure to achieve unanimity on a set of other civilian activities. In fact， in utmost circumstances， unanimity plays a role no more than adoption by negative consensus without majority votes . This is just the beauty of a UN resolution with toleration on deliberations permeated through， rather than an international convention， which may not be traced to opposed positions. As mentioned hereinbefore， despite the great influence by developing countries and their combinations such as “Group 77”， the developed countries especially the Western powers‘ endeavor of trying not to conclude a treaty was even more significant. “One championed by the United States and many western nations regarded the freedom of acquiring and imparting information as a fundamental human right whereas developing nations and the Soviet-led socialist countries predicted their case as their inalienable right to dispose of their natural resources and of information concerning such resources.”
　　Hence， the controversial issues are centering on those principles newly introduced under international cooperation， which can but be led by technically developed countries and seemingly benefit the developing nations， paying attention to “and taking into particular consideration the needs of the developing countries” . Simply speaking， the United Sates had 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 Principles largely embodied this policy in the way of triple conceptions， which are equitable participation， technical assistance and access to data. Although non-binding， the　commercial remote sensing regulatory regime recognizes them， for the most part， as international obligations and requires those licensed in the　to comply with the data accessibility principle. The reason is that the Principles given birth to in multilateral moves were substantially in virtue of the American previous practices in bilateral approach.
　　To illustrate， those Landsat agreements before the Principles may best be taken as an example， which are agreements concluded between the National Aeronautics and Space Administration　of　and a number of countries spread over the world： Argentina， Australia， Brazil， Canada， India， Italy， Japan， Sweden etc. “The authority for NASA to enter into such agreements derives from the NASA Act of 195， which provides ‘that activities in space should be devoted to peaceful purposes for the benefit of all mankind’， while Section 205 of that Act empowers NASA to ‘engage in a program of international cooperation in work done pursuant to this Act， and in the peaceful application of the results thereof’。” For those countries， the Landsat agreements involved the building of ground stations for acquisition and processing of remote sensing satellite data， at their own expense. In addition to each country paying for its own share in the project， it was also agreed under Landsat arrangements that data obtained from experiments would be made available to the international scientific community. Besides， countries without Landsat facilities but within the overcast range of the ground stations would be served with information bona fide， prevailing the principle of pacta tertiis nec nocent nec prosunt. Such practice was borne the acquiescence in meeting of minds that a sensor state might conduct without consent in advance from sensed state. Besides， advanced technology was not in monopoly by mutual agreements and the data would be in publicity for the world.
　　Hence， imitationally and correspondingly， Principle V says， “States carrying out remote sensing activities shall promote international cooperation in these activities. To this end， they shall make available to other States opportunities for participation therein. Such participation shall be based in each case on equitable and mutually acceptable terms”； and Principle VI， “In order to maximize the availability of benefits from remote sensing activities， States are encouraged， through agreements or other arrangements， to provide for the establishment and operation of data collecting and storage stations and processing and interpretation facilities， in particular within the framework of regional agreements or arrangements wherever feasible.” The mutual agreements are hereby highlighted as a guarantee for feasibility of participation， because without contractual transactions， the term “equitable” may fall into inconsequential extension of its subjects as well as objects， whereof the “opportunities” seem surprising chance rather than rational expectation. In a nutshell， the UN Principles are considered to permit States to freely sense and publicly distribute data from outer space without the consent of the sensed State. Moreover， it is now regarded as well-established customary international law that remote sensing may be conducted without prior consent. For dissemination， such kinds of conclusions are at least drawn directly by some scholars on ground of the absence of specific provisions in the Principles concerning dissemination of data.
　　As for sensing， “[A]lthough it has been argued by some nations that prior consent for remote sensing of a State should be sought， such protestations have never adversely affected operational progress. Principle XIII of the Resolution mentions prior ‘consultation’ and not ‘prior consent’。 It is formulated as follows： to promote and intensify international cooperation， especially with regard to the needs， of developing countries， a State carrying out remote sensing of the earth from space shall， upon request， enter into consultation with a State whose territory is sensed in order to make available opportunities for participation and enhance the mutual benefits to be derived therefrom. Consensus could not be reached regarding prior consultation， but it is clear， nonetheless， that a state considering that it is likely to be subjected to foreign remote sensing has a right， and without restriction， to request that consultations take place and that the requested State ‘shall’ enter into consultations with a State whose territory is sensed.” Such inference represents some optimistic viewpoints but doesn‘t stand adequate reasons for its feasibility. As Myers pointed out， “[T]he Third World States are faced with serious problems， primarily because they do not possess the technology and means to conduct remote sensing. They must rely on the developed States to provide the data and to assist in the analysis” .
　　In light of the negotiating positions， such principles provided for may make no more sense but for any State in possession of ripe technology， whether it‘s a developed country or a developing country. As exemplified， there has been a bright nova in the outer space undertaking in recent three decades， People’s Republic of China， since the Chinese first recoverable remote sensing was successfully launched and recovered in 1975 and China Remote Sensing Satellite Ground Station　began operated functioning in 1986. China has made sufficiently rapid progress in spatial undertaking and become one of the leading countries in remote sensing technology， on the basis of which， China is substantially capable to participate in international cooperation with other foreign satellite management authorities， for example， in 1999， the China-Brazil Earth Resources Satellite 01　collectively explored and developed by both countries was successfully launched as the beginning of a satellite series ； in 2003， China RSGS had concluded or continued implementing a series of international or regional agreements， including Landsat-5/7 with America USGS， Spot-1/2/4/5 and Envisat with France CNES and Spot Image， Radarsat-1 with Canada CSA and RSI， ERS-2 with ESRIN subsidiary to ESA， Envisat Data Reception with Norways Kongsberg Spacetec， attendance on India IRS Conf. etc. Considering the previous examples of　and China， it‘s obvious that available opportunities for equitable participation must not be lack of the reciprocal technical ability and negotiations.
　　In summary， Principle V and VI are deemed to confirm the unrestricted right to remote sensing without prior consent or notification. Additionally， remote-sensing States are required to enter into consultations with sensed States upon request. In this sense， Principle XIII is attributed much more in return for technical discrepancy situations. Furthermore， States conducting remote sensing are required to provide technical assistance on mutually agreed te