National Center for Remote Sensing, Air and Space Law
OverviewOverview
• CaveatsCaveats• Development patternDevelopment pattern• Some Commentators’ CriteriaSome Commentators’ Criteria
― IntentIntent― Respect for intentRespect for intent― Agreed legitimacyAgreed legitimacy― Reference in bilateral and multilateral agreementsReference in bilateral and multilateral agreements― Elaborate on existing hard lawElaborate on existing hard law― ““Way station” to treaty or custom?Way station” to treaty or custom?
• ““Hardest” part of soft law: nondiscriminatory accessHardest” part of soft law: nondiscriminatory access• Post-Principles activities: Disasters CharterPost-Principles activities: Disasters Charter• Some concluding thoughtsSome concluding thoughts
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National Center for Remote Sensing, Air and Space Law
CaveatsCaveats
• Presentation does not address soft law as a wholePresentation does not address soft law as a whole• Addresses a single substantive subject: the UN Addresses a single substantive subject: the UN
Remote Sensing PrinciplesRemote Sensing Principles• Addresses only one particular kind of instrument: Addresses only one particular kind of instrument:
UNGA declarations of principlesUNGA declarations of principles• GA may discuss…may make recommendations...GA may discuss…may make recommendations...
(Art.10 UN Charter)(Art.10 UN Charter)―Does not say can make law of any kindDoes not say can make law of any kind―ICJ: ICJ: Nicaragua CaseNicaragua Case expanded concept of legal force of expanded concept of legal force of
UNGARsUNGARs―Lots of controversy in between; I leave that to othersLots of controversy in between; I leave that to others
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National Center for Remote Sensing, Air and Space Law
UN Remote Sensing Principles:UN Remote Sensing Principles:Travaux Préparatoires Reveal Travaux Préparatoires Reveal
Development PatternDevelopment Pattern
• A few primary documents date to early 70sA few primary documents date to early 70s― 1972 11972 1stst Landsat (ERTS) launched Landsat (ERTS) launched
• ““Bell curve” shape:Bell curve” shape:― Begins in late 1970sBegins in late 1970s― Crests in early and mid-1980sCrests in early and mid-1980s― Tapers off in early 1990Tapers off in early 1990
• Precipitous drop after 1994Precipitous drop after 1994• Nothing after 2005 Nothing after 2005 • Most documents by far in 1983-1987Most documents by far in 1983-1987
― 1984 Landsat privatized, followed by attempted commercialization1984 Landsat privatized, followed by attempted commercialization
• Principles II, IV, and XIIPrinciples II, IV, and XII― disproportionate amount of energy put into formulationdisproportionate amount of energy put into formulation
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National Center for Remote Sensing, Air and Space Law
Soft Law Exists in the Middle of a Spectrum Soft Law Exists in the Middle of a Spectrum Based on Degree of Consent to be BoundBased on Degree of Consent to be Bound
Not legally Not legally binding.binding.
Express Express agreed agreed
law.law.The UN Principles Relating to Remote The UN Principles Relating to Remote Sensing of the Earth from Outer SpaceSensing of the Earth from Outer Space
National Center for Remote Sensing, Air and Space Law
Some Commentators’ Criteria: IntentSome Commentators’ Criteria: Intent
• Criterion: Common intentCriterion: Common intent―Intention of drafters was to adopt declarations Intention of drafters was to adopt declarations
not binding not binding per seper se―First set of principles adopted by consensusFirst set of principles adopted by consensus
• Criterion: Intent is respectedCriterion: Intent is respected―No nation has ever formally objected to the No nation has ever formally objected to the
Principles Principles
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National Center for Remote Sensing, Air and Space Law
Some Commentators’ Criteria:Some Commentators’ Criteria:Legitimacy Must be agreed uponLegitimacy Must be agreed upon
• Remote sensing nations declare the Remote sensing nations declare the application of the Principles to their own application of the Principles to their own activitiesactivities
• Parts of the Principles have been adopted in Parts of the Principles have been adopted in some national laws and policiessome national laws and policies
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National Center for Remote Sensing, Air and Space Law
Some Commentators’ Criteria:Some Commentators’ Criteria:Reference in Bilateral andReference in Bilateral andMultilateral Agreements Multilateral Agreements
• Soft law includes bilateral and multilateral Soft law includes bilateral and multilateral agreements and unilateral declarationsagreements and unilateral declarations
• Some relevant remote sensing agreements Some relevant remote sensing agreements that reference the Principles that reference the Principles ―CBERSCBERS―Cooperation Agreement Concerning the Vegetation Cooperation Agreement Concerning the Vegetation
National Center for Remote Sensing, Air and Space Law
Principles Elaborate Upon Existing Principles Elaborate Upon Existing Hard Law for a Specific ApplicationHard Law for a Specific Application
• Outer Space TreatyOuter Space Treaty―““for the benefit and in the interests of all for the benefit and in the interests of all
countries, irrespective of their degree of countries, irrespective of their degree of economic or scientific development”economic or scientific development”
• PrinciplesPrinciples―““for the benefit and in the interests of all for the benefit and in the interests of all
countries, irrespective of their degree of countries, irrespective of their degree of economic, social or scientific and economic, social or scientific and technological technological development”development”
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National Center for Remote Sensing, Air and Space Law
Principles Elaborate Upon Existing Principles Elaborate Upon Existing Hard Law for a Specific ApplicationHard Law for a Specific Application
• Principle IIIPrinciple III― ““Remote sensing activities shall be conducted in accordance with Remote sensing activities shall be conducted in accordance with
international law, including…[international law, including…[UN CharterUN Charter], the…[], the…[OSTOST]…and the ]…and the relevant instruments of the [relevant instruments of the [ITUITU]”]”
• Principle IVPrinciple IV― ““Remote sensing activities shall be conducted in accordance with Remote sensing activities shall be conducted in accordance with
the principles contained in the principles contained in article I article I of [of [OSTOST]”]”
• Principle IXPrinciple IX― ““In accordance with article IV of the Convention on Registration …In accordance with article IV of the Convention on Registration …
and and article XI article XI of the [of the [OSTOST]…”]…”
• Principle XIVPrinciple XIV― ““In compliance with In compliance with article VI article VI of the…[of the…[OSTOST]…States operating ]…States operating
remote sensing satellites shall bear international responsibility for remote sensing satellites shall bear international responsibility for their activities…”their activities…”
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National Center for Remote Sensing, Air and Space Law
UN Principles as a “Way Station” UN Principles as a “Way Station” to A Treaty or Custom?to A Treaty or Custom?
• Negotiated for decadesNegotiated for decades• Codified established conduct of States prior to Codified established conduct of States prior to
adoptionadoption• Gave greater legitimacy to already existing Gave greater legitimacy to already existing
practicespractices―Landsat, SPOT, e.g.Landsat, SPOT, e.g.
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National Center for Remote Sensing, Air and Space Law
UN Principles as a “Way Station” UN Principles as a “Way Station” to A Treaty or Custom?to A Treaty or Custom?
• Promulgated in 2Promulgated in 2ndnd phase of LSC: Principle making phase of LSC: Principle making―11stst LSC phase was treaty making LSC phase was treaty making―Principles often seen in response to slow treaty making Principles often seen in response to slow treaty making
processprocess
• First set of principles adopted by consensus after First set of principles adopted by consensus after last treatylast treaty―Signaled return to consensus after 1982 DBS voteSignaled return to consensus after 1982 DBS vote―Early supposition would evolve into a more formal Early supposition would evolve into a more formal
regime regime ―One step on path to codificationOne step on path to codification
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National Center for Remote Sensing, Air and Space Law
UN Principles as a “Way Station” UN Principles as a “Way Station” to A Treaty or Custom?to A Treaty or Custom?
• Attempts to formalize treaty unsuccessfulAttempts to formalize treaty unsuccessful―Including more limited attempts to review key Including more limited attempts to review key
statements in the Principlesstatements in the Principles―Current expectation: will not become a treatyCurrent expectation: will not become a treaty
• Post 9/11Post 9/11―Increased focus on national lawIncreased focus on national law―Split practices emerged re: systems of different Split practices emerged re: systems of different
resolutions and capabilitiesresolutions and capabilities
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National Center for Remote Sensing, Air and Space Law
The “Hardest” Part of the Soft Law:The “Hardest” Part of the Soft Law:Nondiscriminatory AccessNondiscriminatory Access
• Considerable state practiceConsiderable state practice
• Standard provision in many bilateral and Standard provision in many bilateral and multilateral agreementsmultilateral agreements
• Adopted in national lawsAdopted in national laws―Canada, France, Germany, Japan, United StatesCanada, France, Germany, Japan, United States
• Adopted in national policiesAdopted in national policies―India, Israel, and ThailandIndia, Israel, and Thailand
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National Center for Remote Sensing, Air and Space Law
The “Hardest” Part of the Soft Law:The “Hardest” Part of the Soft Law:Nondiscriminatory AccessNondiscriminatory Access
• Clarified or translated as a normClarified or translated as a norm• Increasingly defined differently for high, medium Increasingly defined differently for high, medium
and low resolution systemsand low resolution systems―increasingly restrictive for high resolution; some even increasingly restrictive for high resolution; some even
lead to criminal sanctionslead to criminal sanctions E.g., Imagesat International, Geoeye, Pleiades, etc.E.g., Imagesat International, Geoeye, Pleiades, etc.
―Increasingly open for medium and low resolution; trend Increasingly open for medium and low resolution; trend is free of costis free of cost E.g., Landsat, CBERS, etc.E.g., Landsat, CBERS, etc.
• Presumption of openness enduresPresumption of openness endures• Denial requires justificationDenial requires justification
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National Center for Remote Sensing, Air and Space Law
New Contemporary Significance?New Contemporary Significance?
• Principles do not address clear and specific Principles do not address clear and specific regulations for new issues, e.g. global regulations for new issues, e.g. global systems; however,systems; however,
• Principle XPrinciple X―““protection of the Earth's natural environment”protection of the Earth's natural environment”
• Principle XIPrinciple XI―““protection of mankind from natural disasters”protection of mankind from natural disasters”
• Minimum focus in negotiationsMinimum focus in negotiations
• But perhaps a “bridge” to…………But perhaps a “bridge” to…………
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National Center for Remote Sensing, Air and Space Law
Post-Principles Activities:Post-Principles Activities:International Charter Space and Major International Charter Space and Major
DisastersDisasters
• NonbindingNonbinding
• Potentially binding over time if proved by Potentially binding over time if proved by both by State practice and both by State practice and opinio jurisopinio juris
• Activated approximately 314 timesActivated approximately 314 times
• Continuously operational for 11 yearsContinuously operational for 11 years
National Center for Remote Sensing, Air and Space Law
Post-Principles Activities:Post-Principles Activities:International Charter Space and Major International Charter Space and Major
DisastersDisasters
Relevant Factors Regarding Evolving StatusRelevant Factors Regarding Evolving Status
• Frequency and number of activations and Frequency and number of activations and responsesresponses
• Quality and effectiveness of activations and Quality and effectiveness of activations and responsesresponses
• Standards, if any, of behavior established Standards, if any, of behavior established by voluntary actionsby voluntary actions
• Addition or withdrawal, if any, of Parties, Addition or withdrawal, if any, of Parties, Associated Bodies, Cooperating BodiesAssociated Bodies, Cooperating Bodies
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National Center for Remote Sensing, Air and Space Law
Some Concluding ThoughtsSome Concluding Thoughts
• Recognition of soft law is prevalent in Recognition of soft law is prevalent in international environmental lawinternational environmental law
• The more that remote sensing law relates to The more that remote sensing law relates to environmental matters, the more likely its soft environmental matters, the more likely its soft components will be recognizedcomponents will be recognized
• ““Dark side” of soft law: any law is better than no Dark side” of soft law: any law is better than no law?law?―Weakened due process and authorityWeakened due process and authority―““Soft” gives way to “squishy” that is, anarchy?Soft” gives way to “squishy” that is, anarchy?
• At what point will “alternative” mechanisms ripen At what point will “alternative” mechanisms ripen into the new norms?into the new norms?
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National Center for Remote Sensing, Air and Space Law
The Concluding ThoughtThe Concluding Thought
The most significant aspect about the soft law The most significant aspect about the soft law discussion is that it signals a change from the discussion is that it signals a change from the post-World War II era to the globalization era.post-World War II era to the globalization era.
Further, in my opinion, it is also a manifestation of Further, in my opinion, it is also a manifestation of fundamental changes occurring in the modern fundamental changes occurring in the modern
Nation-State system. These changes are Nation-State system. These changes are analogous to those that gave rise to the law of analogous to those that gave rise to the law of
nations and the modern Nation-State system in the nations and the modern Nation-State system in the 1400s – 1600s.1400s – 1600s.
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Questions?Questions?Comments?Comments?
Res Communis Blog:Res Communis Blog:A blog on the legal aspects of human activities using aerospace activitiesA blog on the legal aspects of human activities using aerospace activities
