23 NYUJIntl LPol 599

DATE DOWNLOADED: Tue Jul 6 01:55:22 2021
SOURCE: Content Downloaded from HeinOnline
Citations:
Bluebook 21st ed.

Harry Feder, The Sky's the Limit--Evaluating the International Law of Remote Sensing,
23 N.Y.U. J. INT'l L. & POL. 599 (1991).
ALWD 6th ed.

Feder, H. ., The sky's the limit--evaluating the international law of remote sensing,
23(2) N.Y.U. J. Int'l L. & Pol. 599 (1991).
APA 7th ed.

Feder, H. (1991). The sky's the limit--evaluating the international law of remote
sensing. New York University Journal of International Law and Politics, 23(2),
599-670.
Chicago 17th ed.

Harry Feder, "The Sky's the Limit--Evaluating the International Law of Remote
Sensing," New York University Journal of International Law and Politics 23, no. 2
(Winter 1991): 599-670
McGill Guide 9th ed.

Harry Feder, "The Sky's the Limit--Evaluating the International Law of Remote
Sensing" (1991) 23:2 NYU J Int'l L & Pol 599.
AGLC 4th ed.

Harry Feder, 'The Sky's the Limit--Evaluating the International Law of Remote
Sensing' (1991) 23(2) New York University Journal of International Law and Politics
599.
MLA 8th ed.

Feder, Harry. "The Sky's the Limit--Evaluating the International Law of Remote
Sensing." New York University Journal of International Law and Politics, vol. 23, no.
2, Winter 1991, p. 599-670. HeinOnline.
OSCOLA 4th ed.

Harry Feder, 'The Sky's the Limit--Evaluating the International Law of Remote
Sensing' (1991) 23 NYU J Int'l L & Pol 599
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
THE SKY'S THE LIMIT? EVALUATING THE
INTERNATIONAL LAW OF REMOTE
SENSING'
HARRY FEDER
I. INTRODUCTION
Satellite technology, limited to the realm of science fic-
tion just decades ago, is now a routine and integral part of
such pursuits as telecommunications, navigation and posi-
tion finding, television broadcasting, and maritime commu-
nication. More than a hundred nations use data acquired by
remote sensing technology, 2 a process by which satellites
orbiting the earth capture images of everything from nuclear
missiles to irrigation leaks in large farming projects. This
Note explains and analyzes the international legal regime
governing remote sensing and proposes modifications to
meet the needs created by technological and political
changes.
A. How Remote Sensing Works

Data are collected through either passive or active re-
mote sensing. Passive remote sensing is "mere picture tak-
1. Remote sensing is defined in the Principles Relating to Remote

Sensing of the Earth from Space as the sensing of the earth's surface from
space through the detection and gathering of electromagnetic waves
emitted, reflected, or defracted by objects, used to improve natural
resource management, to protect the environment, and in the area of land
use. 41 GA. Res. 65, Principles Relating to Remote Sensing of the Earth
from Space (Dec. 3, 1986), reprinted in 25 ILM 1334 (1986) [hereinafter
Principles].
The complete text of the Principles is reproduced in the Appendix.
The definition of remote sensing provided by the Principles is legal and
political rather than scientific; it defines the appropriate scope of the
international law of remote sensing. U.N. Doc. A/AC. 105/305, COPUOS
Report of the Legal Subcommittee on the Work of Its 21st Session (Feb.
24, 1982, Annex), at 3.
2. U.N. Committee on Peaceful Uses of Outer Space (COPUOUS) Re-
port on the United Nations/ European Space Agency Training Course on
Applications of Remote Sensing and Agro-Meteorological Data, U.N. Doc.
A/AC. 105/413, at 4 (1988) [hereinafter Training Course].
599
Imaged with the Permission of N.Y.U. Journal of International Law and Politics
INTERNATIONAL LAW AND POLITICS [Vol. 23:599
ing"; active remote sensing involves "the bouncing of energy

off the earth with the satellite measuring the reflected radia-
tion."' Photographs of the earth are then developed
through various photo-interpretation techniques, including
computerized processing, interactive and automatic analysis,
and incorporation of interpreted data into computerized
4
databases.
B. How Remote Sensing is Used

Remote sensing technology serves many functions.
Earth-resource satellites have been used to discover oil
slicks, find marine life in the ocean, and help map5 the Ama-
zon Basin in preparation for bridge construction.
Remote sensing presently plays an important role in
managing agriculture. By detecting the spectral emissions of
vegetation, farm planners are able to locate diseased and
water-starved crops. 6 Sensing is also used to locate irriga-
tion leaks to prevent flooding. 7 Weather satellites alert me-
teorologists to the possibility of tropical storms, excessive
rainfalls, and crop-freezing temperatures.8 Governments
use remote sensing technology to monitor deforestation in
the Amazon 9 and may expand its use for global environmen-
tal management purposes in the future.1 0
The use of remote sensing technology has not been lim-
ited to schemes for environmental analysis; sensing is also
used for military reconnaissance purposes. By gathering in-
telligence information, satellites can effectively verify compli-
ance with the Strategic Arms Limitation Treaty (SALT) be-
3. N. GOLDMAN, AMERICAN SPACE LAW 9 (1988).

4. Training Course, supra note 2, at 4.
5. C. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUMR SPACE 8
(1982).
6. N. GOLDMAN, supra note 3, at 9.
7. Id.
8. C. CHRISTOL, supra note 5, at 8.
9. Chapoval, Brazil Has Yet To Prove It's Serious on Saving Amazon,
Reuters, June 22, 1990, at 15 (LEXIS, Nexis library, Currnt file).
10. The U.S., in conjunction with several foreign governments, is em-
barking on a $30 billion, 30-year enterprise, called the Earth Observing
System (EOS), to monitor the Earth comprehensively. Stevens, Huge Space
Platform Seen as DistortingStudies of Earth, N.Y. Times, June 19, 1990, at CI,
col. 5.
1991] LAW OF REMOTE SENSING
tween the U.S. and the Soviet Union. I

Additionally, the news media uses satellite images to
broadcast newsworthy photographs around the world, such
as those of the Chernobyl nuclear power plant accident and
of Silkworm missile sites in the Persian Gulf.' 2
C. The Law Governing Remote Sensing

The pervasiveness of remote sensing activities1 3 on the
international scene has necessitated the formulation of a
legal regime for governing this form of satellite use that is
consistent with basic principles of international law. The
U.N. Committee on Peaceful Uses of Outer Space
(COPUOS) Legal Subcommittee commenced this task in
1970. In 1986 the Subcommittee finally produced fifteen
principles governing remote sensing. On December 3, 1986,
a consensus General Assembly passed "Principles Relating
to Remote Sensing of the Earth from Space" (the "Princi-
ples") as U.N. Resolution 41/65.14 Together with the space
treaties that comprise the background international space
law in this arena,' 5 the Principles define the current state of
11. I&.
12. Remote Sensing New Applications Gain Acceptance, AVIATION WEEK &
SPACE TECH., Feb. 15, 1988, at 64.
13. Remote sensing activities include the operation of remote sensing
space systems, primary data collection and storage stations, and process-
ing raw data, as well as interpreting and disseminating the processed data.
Principle I(e), in Principles, supra note 1.
14. See Cocca, Legal Principles on Remote Sensing, PRoc. 30r CoLLo-
QuiUM L. OUTER SPACE 276 (1987).
15. The U.N. COPUOS, through its legal subcommittee, has passed
five treaties: The Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, openedforsignature,Jan.27, 1967, 18 U.S.T. 2410, T.I.A.S.
No. 6347, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]; Agreement
on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space, openedfor signature,Apr. 22, 1968, 19
U.S.T. 7570, T.I.A.S. No. 6599, 672 U.N.T.S. 45 [hereinafter Rescue and
Return Agreement]; Convention on International Liability for Damage
Caused by Space Objects, openedfor signature, Mar. 29, 1972, 24 U.S.T.
2389, T.I.A.S. No. 7762, 961 U.N.T.S. 187 [hereinafter liability Conven-
tion]; The Convention on the Registration of Objects Launched into
Outer Space, openedfor signature,Jan. 14, 1975, 28 U.S.T. 695, T.I.A.S. No.
8480, 1023 U.N.T.S. 15 [hereinafter Registration Convention]; Agree-
ment Governing the Activities of States on the Moon and Other Celestial
INTERNATIONAL LA W AND POLITICS [Vol. 23:599
the international law of remote sensing.
D. How the Remote Sensing Laws Should Be Changed

Legal principles often fail to keep pace with technologi-
cal breakthroughs and political developments in the areas
they govern. This Note evaluates the state of remote sensing
law in light of some of these trends and provides suggestions
for the future direction of remote sensing law. Formal inter-
national agreements can only regulate behavior meaning-
fully if they encompass scientific and technological advances
and the political issues affected by these advances. 1 6
This Note examines whether the current international
law governing remote sensing activities adequately protects
the normative goals it is designed to further. Parts II and III
explore the current state of the international law of remote
sensing: Part II analyses existing space law and identifies
norms, such as the principles of nondiscrimination, interna-
tional cooperation, and state responsibility as articulated in
the Outer Space Treaty, that are relevant to the international
law of remote sensing activity; Part III examines the history,
content, and legal effect of the Principles. Although the
Principles incorporate other international legal norms, they
also reflect the specific political and technological forces out
of which they were born. The discussion of legal effect lays
the groundwork for the form that future developments in re-
mote sensing law need to take in order to best effectuate de-
sired norms of conduct.
Parts IV through VI of this Note examine practical de-
velopments in remote sensing technology and evaluate the
effectiveness of the Principles in accounting for these devel-
opments. Part IV discusses the impact of advances in remote
sensing technology, specifically in terms of military applica-
tions. The omission of all military applications from the
scope of the Principles negates their effectiveness in mini-
mizing potential military security difficulties that improved
resolution poses. This Note argues that the best way to dif-
fuse these negative security implications is to maintain a true
"open skies" policy with nondiscriminatory dissemination.
Bodies, 34 U.N. GAOR Supp. (No.46) at 77, U.N. Doc. A/Res. 34/68, 18
ILM 1434 (1979) [hereinafter Moon Treaty].
16. See C. CHRISTOL, supra note 5, at 13.
Part V considers the growth of the commercialization of

remote sensing activities and its effect on the equal access
and nondiscriminatory principles. The potential for
problems in enforcing international norms increases as more
non-governmental entities use this technology. This Note
argues that the Principles' state responsibility requirements
and the attempts of municipal legislation to enforce notions
of equal access and nondiscrimination lack the scope and au-
thority needed to enforce these international norms.
Part VI examines the consequences of a particular com-
mercial use of remote sensing-media use-and identifies
potential privacy and security problems posed by such use.
The failure of the Principles to address these problems could
be corrected through the incorporation of certain First and
Fourth Amendment principles into future manifestations of
the international law.
Parts VII and VIII conclude that, although the best solu-
tion to the Principles' shortcomings is the internationaliza-
tion of remote sensing activities through one world body,
this solution is not likely to be realized. Less ambitious solu-
tions are possible, however, and Part VII provides a draft
treaty that outlines such solutions. The draft treaty extends
beyond the Principles in terms of both legal effect and sub-
stantive law. It attempts to resolve the issues raised in this
Note by providing a regime that reconciles scientific and
political developments in the area of remote sensing with the
core legal notions around which consensus on the Principles
was formed.
II. BACKGROUND SPACE LAW
Any specific legal fi-amework for remote sensing activi-

ties must be placed in the context of the international trea-
ties that comprise the larger body of space law. The Princi-
ples, which will be discussed in detail in the next section,
take this into account. For example, Principles III and IV
charge that remote sensing activities be conducted in accord-
ance with international law, and specifically with the Charter
of the United Nations and the Outer Space Treaty. 17 The
nerve center of international space law has been the U.N.
17. Principles III & lY, in Principles, supra note 1.
COPUOS and its twin subcommittees, legal and scientific/

technological.' 8 COPUOS has functioned as an interna-
tional legislative body for space activities, producing the five
major international agreements governing space law.' 0
Because the exploration and utilization of space is a rel-
atively new phenomenon, concepts of space law have had to
develop more quickly than other areas of international law.
While customary principles of international law have taken
decades or centuries to develop, the COPUOS consensus
process 20 produced the entire body of basic space law in less
than ten years; 2 ' the five treaties have binding effect on their
signators, and over this short period 22 the principles in these
treaties have formed the basic space law for the entire inter-
national community.
A. The Outer Space Treaty of 1967

The 1967 Outer Space Treaty (the "treaty") codified
18. P. WADEGAONKAR, THE ORBIT OF SPACE LAW 3 (1984); See Jasentu-

liyana, Treaty Law and Outer Space: Can the United Nations Play an Effective
Role?, 11 ANNALS AIR SPACE L. 219 (1986). COPUOS was established in
1958 by a U.N. General Assembly resolution regarding the peaceful use of
outer space, the sovereign equality of countries relating to space activities,
and the need for international cooperation. G.A. Res. 1348, 13 U.N.
GAOR Supp. (No. 18) at 5, 22-23, U.N. Doc. A/4090 (1958).
19. B. HURW1TZ, THE LEGALITY OF SPACE MILITARIZATION 12 (1986).
For a complete discussion of the history and structure of COPUOS, see C.
CHRISTOL, supra note 5, at 12-20.
20. The consensus process means that treaties and principles drafted
by COPUOS must be passed unanimously. See C. CHRISTOL, supra note 5,
at 17. This consensus method does not ensure that the treaty will be
signed, however. For example, none of the space powers have signed the
Moon Treaty of 1979. The consensus mechanism within COPUOS has
occasionally broken down, particularly with the 1982 Direct Broadcast Sat-
ellite Principles. See Gaggero, Remote Sensing in the U.N.: Returning to the
Way of Consensus, PROC. 31ST COLLOQuIUM L. OUTER SPACE 270-73 (1988).
21. Some commentators have thus accorded space law the status of
"instant" customary law. See, e.g., P. WADEGAONKAR, supra note 18, at 3.
Although customary space law may be deficient from a perspective of
elapsed time, this consideration has been counter-balanced by a strong
opiniojuris, expressed in uniform state practice, positively leading to the
creation of rules of law that the international community consciously re-
gards as binding and mandatory. Id. at 9.
22. Rapid changes in technology suggest that the stage of consensus
omnium in the field of space law may be reached quickly without diminish-
ing the legal effect of the space treaties. B. HURWITZ, supra note 19, at 7.
certain basic principles of space law first articulated by

COPUOS in the General Assembly Resolution of 1962, the
"Declaration of Legal Principles Governing the Activities of
23
States in the Exploration and Use of Outer Space." Sev-
eral of these principles have significance for remote sensing
activities.
Article I of the Treaty establishes the right of all states
to explore and use outer space, the moon, and celestial bod-
ies for the benefit and in the interests of all countries, with-
out discrimination and regardless of the stage of develop-
ment of any country. 24 Article II prohibits the appropriation 25
of outer space, in the name of sovereignty, by any country.
Today, there is widespread agreement that the twin princi-
ples of freedom and non-appropriation have acquired the
status of customary international law. 26 The international
law regarding the acquisition of remote sensing information
incorporates the27
article I principle of nondiscriminatory ac-
cess to space.
Artide IV prohibits military activity in space. Nuclear
weapons are expressly barred from space, as is the establish-
ment of military bases, installations, and fortifications. This
prohibition includes the testing of any type of weapons and
the conduct of military maneuvers on celestial bodies.28 Sat-
ellite reconnaissance, however, is not expressly prohibited
by the Treaty, despite its military applications. Under the
Treaty, space is to be used solely for peaceful purposes;
therefore the issue is whether the use of spy satellites faHlls
within that realm. 29 The use of satellite reconnaissance does
not violate international law, which grants every nation the
23. G.A. Res. 1962, 18 GAOR (Supp. No. 15) at 15, U.N. Doc. A/5515
(Dec. 13, 1963).
24. Outer Space Treaty, supra note 15, art. I.
25. Id art. II.
26. DEP'T FOR DISARMAMENT AFFAIRS, The Implications of Establishingan
InternationalSatellite MonitoringAgency at 52, U.N. Doc. A/AC.206/14 (Dis-
armament Study Series No. 9 1983) [hereinafter ISMA].
27. See infra notes 82-83 and accompanying text.
28. Outer Space Treaty, supra note 15, art. IV.
29. Most commentators view military reconnaissance as legal within the
peaceful purposes provision of the Outer Space Treaty. See, e.g., C. CHRIS-
TOL, supra note 5, at 28-29; B. HuRwrrz, supra note 19, at 98 (the legality of
reconnaissance is no longer seriously questioned). But see G. REUJNEN,
UTILIZATION OF OUTER SPACE AND INTERNATIONAL LAW 71-72 (1981).
right to conduct espionage.3 0 Remote sensing as defined by

the Principles is legal under article IV.
Article VI of the 1967 Treaty requires states that are
parties to the Treaty to "bear international responsibility for
national activities in outer space .. whether such activities
are carried on by governmental agencies or by non-govern-
mental entities, and for assuring that national activities are
carried out in conformity with the provisions set forth in the
present Treaty"' thus recognizing that commercial entities
as well as governments are covered by the treaty's provi-
sions. 3 2 The legal effect of the international responsibility
doctrine is particularly important today, as a good deal of
33
remote sensing activity is being commercialized.
The final salient concepts promoted by the Treaty are
international cooperation and mutual assistance in space ex-
ploration and development. Article IX demands that states
party to the Treaty "be guided by the principle of coopera-
tion and mutual assistance and shall conduct all their activi-
ties in space... with due regard to the corresponding inter-
ests of all other State Parties to the Treaty" in the explora-
tion and use of outer space.3 4 Articles X and XI help define
the requirements of cooperation by charging states to give
other nations equal opportunity to observe their space
flights and by asking states to, inform the Secretary-General
of the United Nations of space activity "to the greatest extent
feasible and practicable." 3 5 The Principles thus endorse the
promotion of international cooperation and assistance. 36
30. See Myers, United Nations Activity on Remote Sensing: Legal and Political
Implications, PROC. 30TH CouLoquIuM L. OUTER SPACE 362 (1987). The
legality of reconnaissance to acquire military information has become a
principle of customary international law. Christol, The 1986 Remote Sensing
Principles: Emerging or Existing Law, PROC. 30-m COLLOQUIUM L. OUTER
SPACE 270 (1987). Like the high seas, outer space is beyond state sover-
eignty. As espionage from the former is generally accepted as being a
legal activity, it has been concluded that espionage from outer space is
also legal. B. HURWITZ, supra note 19, at 29.
31. Outer Space Treaty, supra note 15, art. VI.
32. Principle XIV, in Principles, supra note 1.
33. See infra Part V.A.
34. Outer Space Treaty, supra note 15, art. IX.
35. Id. art. X-XI.
36. See Principles V-IX, in Principles, supra note 1. For further discus-
sion of the content and effect of the Principles, see infra Parts III.B. & C.
19911 LAW OF REMOTE SENSING
B. Other Relevant Treaties of Space Law

U.N. COPUOS has drafted four treaties since offering
the Outer Space Treaty. The Rescue and Return Agreement
entered into force in 1968 and was designed to deal with
concern for the welfare of space personnel and for the return
of space objects to the authority responsible for their launch-
ing.3 7 The 1972 Liability Convention governs liability for
space-related accidents. This agreement delineates the stan-
dards for liability, the process for dispute resolution, the lim-
itations on damages, the categories of damages, and the sta-
tus and responsibility of international organizations such as
the International Telecommunications Satellite Organization
(INTELSAT) and the European Space Agency.3 8 Neither
treaty has significant effect for the law of remote sensing,
other than reinforcing the basic principles of the Outer
Space Treaty.
The Registration Convention of 1975 requires states to
register all objects launched into space with the U.N. state
registry and to notify the Secretary-General of all registered
objects.3 9 The registries are to be open for public inspec-
tion.40 The policy of registering and informing the Secre-
tary-General is part of the international law of remote sens-
ing, as Principle IX calls for states carrying out a program of
remote sensing to inform the Secretary General in accord-
ance with article IV of the Registration Convention and with
41
article XI of the Outer Space Treaty.
37. Rescue and Return Agreement, supra note 15, at 7572. For a dis-
cussion of the history and specific provisions, see C. CHRisToL, supra note
5, at 152-212. See also N. GoLDMN, supra note 3, at 76-79.
38. See Liability Convention, supra note 15. For a discussion of provi-
sions and history, see generally C. CHRISTOL, supra note 5, at 59-128; N.
GoLDMAN, supra note 3, at 79-83; B. HURWrrZ, supra note 19, at 39-44.
39. Registration Convention, supra note 15. For a discussion of the Re-
gistration Convention, see C. CtiSToi, supra note 5, at 213-45. The Re-
gistration Convention is considered the end of the halcyon days of
COPUOS when consensus was readily achieved. See N. GoLDMAN, supra
note 3, at 83-85. It has been suggested that the consensus regime has
returned with the promulgation of the Principles. See Cocca, supra note 14,
at 278; Gaggero, supra note 20, at 270.
40. N. GoLDMAN, supra note 3, at 83.
41. Principle IX, in Principles, supra note 1. The broad nature of the
informing requirement raises questions as to its force with regard to pri-
vate remote sensing activities. Since the Registration Convention calls for
The Moon Treaty of 1979 illustrated the breakdown of

consensus in COPUOS.42 Enactment came only after the
major provisions had been tailored as broad restatements of
the Outer Space Treaty, rather than as specific legal instru-
ments. 43 Important provisions, such as "the common heri-
tage of mankind principle" do not have support of the major
space powers. The United States Senate refused to ratify the
45
document in 1980; 4 4 only thirteen nations have done so.
The Moon Treaty has no appreciable effect on the law of re-
mote sensing aside from reiterating the concepts of the
Outer Space Treaty and, in particular, the concept of con-
ducting space exploration in a cooperative and environmen-
tally sound manner.
III. THE PRINCIPLES RELATING TO REMOTE SENSING:

HISTORY, LEGAL EFFECT, AND THE DISPuTE OVER
PRIOR CONSENT
A. The History: Sovereignty 46 and the Dispute over PriorConsent

It took sixteen years to develop the Principles Relating
to Remote Sensing of Earth from Space, finally passed by the
General Assembly in 1986. 4 7 The Principles resulted from a
process of compromise necessary to remedy the differences
between the position of the developing world and that of the
space powers, particularly the United States. 48 The major
stumbling block to agreement was the divergence in opinion
internal registry of all satellite activities, this can be said to apply to private
operators.
42. The breakdown of consensus continued with the hotly disputed
resolution on Direct Broadcasting Satellites. The adoption of the Princi-
ples, however, boosted the sentiment of consensus and cooperation.
Szasz, Report on the 25th Session of the Legal Subcommittee on the Peaceful Uses of
Outer Space, 24 March-i1 April 1986, 14 J. SPACE LAW 48 (1986).
43. N. GOLDMAN, supra note 3, at 87.
44. See id. at 91.
45. Bosco, International Law Regarding Outer Space-An Overview, 55 J.
AIR L. & CoM. 609, 618 n.49 (1990).
46. The concept of sovereignty has traditionally caused considerable
intellectual and political confusion. Myers, supra note 30, at 363. See
generally H. MORGANTHAU & K. THOMPSON, POLITICS AMONG NATIONS: TilE
STRUGGLE FOR POWER AND PEACE 115-85 (6th ed. 1985).
47. Myers, supra note 30, at 361.
48. Christol, Remote Sensing and InternationalSpace Law, 16 J. SPACE L.
21, 37-38 (1988).
on the extent to which sovereignty principles should give a

state an inherent right to control sensed data of its territory
in a manner similar to rights regarding control of natural re-
sources located in a sovereign territory.4 9 The developing
nations wanted to require prior consent before any nation's
territory could be sensed, whereas the space powers wanted
an "open skies" rule under which consent would not be re-
quired.
1. PriorConsent
The joint Argentina/Brazil Draft Treaty of 1974 put
forth the hard-line sovereignty position requiring consent
before any state's territory could be sensed. Article VI of the
same draft provided that a state may take all measures au-
thorized by international law to protect its territory from re-
mote sensing activities for which it had denied consent.5 0
2. The United States and "Open Skies"

The United States has been the strongest proponent of
the "open skies" principle, under which, a state could con-
duct remote sensing activities without the prior consent of
the sensed state. 5 ' The United States justified its right-to-
sense position on legal, economic, and technological
grounds. The U.S. maintained that, since remote sensing ac-
tivities occur beyond the boundaries of national sovereignty,
49. There were disputes over other issues, particularly the principles
on international responsibility, but the rights of sensor versus sensee
States regarding the remote-sensing data was dearly the pivotal problem
that took 16 years to resolve. See generally id at 28-37.
50. Magdel~nat, The MajorIssues in the "Agreed" Prindples on Remote Sens-
ing, 9J. SPACE L. 111, 115 (1981). See also Christol, Mexican Contributionto
the Development of Principles Relating to Remote Sensing of the Earth, Its Natural
Resources, andIts Environment, 14 CAL. WESTERN INT'L L.J. 1, 7-8 (1984) (dis-
cussion of prior consent position).
51. Magdel6nat, supra note 50, at 115. U.S. policy with respect to re-
mote sensing dates back to Richard Nixon's 1969 pledge before the U.N.
General Assembly that "this program will be dedicated to producing infor-
mation not only for the U.S. but also for the U.N. community." The
United States has attempted to put forth a policy of open and nondiscrimi-
natory access on the part of all countries to the product of the LANDSAT
system in support of the open skies concept. G. REYNOLDS & R. MERGES,
OUTER SPACE: PROBLEMS OF LAW AND POLIC 178-79 (1989).
its observations are protected by the Outer Space Treaty. s2

Because satellites are unable to detect or avoid invisible
53
political boundaries, a prior consent regime is unworkable.
Furthermore, an open system of sensing and distribution is
preferable because it would allow the space-faring states to
develop the necessary technology. In a regime of interna-
tional cooperation, the argument goes, those states would
contribute to the preservation of the environment and to the
effective management and control by states of their natural
resources.54
3. The Movement to Final Compromise

Although the Principles largely reflect the U.S. position,
they are nonetheless the product of several compromise so-
lutions. In 1981, Mexico offered a set of draft principles that
recognized the right of states to sense but required states
engaged in remote sensing to give advance notification to
the states whose territory would be observed. 5 5 The draft
principles also required sensing states to provide sensed
states with the preliminary information, final results, and
conclusions of the sensing, and prohibited dissemination of
the information without the sensed state's prior consent 5 0
The Eastern Bloc nations, led by the Soviet Union, also
made an attempt to resolve the sovereignty issue. The Sovi-
ets proposed that, beyond a spatial resolution of fifty me-
ters,5 7 any remote sensing activity, including dissemination
of primary and processed data, could occur without any en-
cumberances. This proposal required the consent of a
52. Magdel6nat, supra note 50, at 115-16.

53. Id.
54. Id.
55. Mexico Working Paper, Report of the Chairman of the Working Group on
Remote Sensing, Annex (principle XII) at 15, U.N. Doc. A/AC. 105/305
(1981) [hereinafter Mexico Working Paper]. See also M. BENKO, W. DE
GRAAFF & G. REUNEN, SPACE LAW IN THE UNITED NATIONS 21-22 (1981).
56. Mexico Working Paper, supra note 55, at 15, principles XIV and
XV. Several commentators sharply criticized the Mexican proposal as in-
hibiting remote sensing for global betterment. See Christol, supra note 50;
Myers, Remote Sensing and National Sovereignty over Natural Resources: An As-
sessment of the Mexican View, 14 CAL. WEST. INT'L L.J. 22, 46-47 (1984).
57. Spatial resolution represents the size of an object that a remote
sensing picture can detect. Thus, a satellite with 50 meter spatial resolu-
tion can sense objects greater than 50 meters in length.
1991] LA W OF REMOTE SENSING
sensed state prior to the dissemination of primary remote

sensing data with a spatial resolution of fifty meters or finer,
as well as analyzed data based on such information.58 Like
the Mexican proposal, the Soviet paper recognized the right
of sensing states to sense, but also preserved the sovereignty
interest of sensed states to control the dissemination of raw
and analyzed images of their territory.5 9
Eventually, consensus produced Principles that are
much closer to the idea of open skies, but that include lan-
guage deferential to the sovereign interests of the sensed
states. 60 The French, shifting from their prior alignment
with the Soviet Union, made the proposal that broke the
stalemate and was adopted as the final product of the legal
61
subcommittee.
The developing nations on the committee ultimately
found it impractical-and indeed impossible-to demand ab-
solute national rights premised on the assumption that sov-
ereignty principles justified excluding sensing activities from
a state's borders; 62 science and technology thwarted the pos-
sibility of enforcing a regime based on notions of national
privacy stemming from national sovereignty. 63 However, the
58. Union of Soviet Socialist Republics Working Paper, Report of the Chairman
of the Working Group on Remote Sensing, Annex at 18, U.N. Doc. A/AC. 105/
305 (1982). This principle was a product of the regional agreement of the
Communist Bloc on the law of remote sensing. Convention on the Trans-
fer and Use of Data of the Remote Sensing of the Earth From Outer
Space, May 19, 1978, art. IV, reprinted in U.S. SENATE COMM. ON Coi-
MERCE, SCIENCE, & TRANSP., SPACE LAW: BASIC DOCUMENTs 489, 490
(1972).
59. Another interesting compromise proposal worth noting is that of
basing the requirement of prior consent for dissemination of data on a
given state's ability to control the consequences of the dissemination.
Note, Third PartyAccess to Data Obtained via Remote Sensing InternationalLegal
Theory versus Economic and PoliticalReality, 15 CASE W. REs.J. INT'L L 361,
387 (1983). However, like every other attempt at line-drawing with regard
to prior consent, either technological developments or political concerns
would have rendered the proposal unworkable.
60. See, e.g., principle XII, in Principles, supra note 1.
61. See France: Working Paper-Memorandumon Remote Sensing, U.N. Doc.
A/AC.105/G.2/L.150 (1985), reprinted in Documents Submitted to or Reintro-
duced in the Legal Subcommittee, Annex at 15, U.N. Doc. A/AC.105/352
[hereinafter France Working Paper].
62. Id.
63. Christol, supra note 30, at 24.
framers of the Principles tried to protect sovereign interests

to an extent with regard to access to both raw and analyzed
data. ,4
The hard-fought consensus achieved in COPUOS was
even accepted, with minimum reservation, by delegates of
the Latin American countries who had led the fight for prior
consent. 6 5 The agreement represents a combination of con-
ciliation and realism by member states and a renewed polit-
ical will for a return to the consensus process in COPUOS.66
B. Content of the Remote Sensing Principles

Principle I lays out the scope of the fifteen Principles. It
limits the definition of remote sensing to that sensing of the
earth conducted "for the purpose of improving natural re-
sources management, land use and the protection of the en-
vironment" 67 thus excluding the use of satellites for military
reconnaissance 68 as well as for media purposes. 69
Principle I delineates three different types of remote
sensing data. "Primary data" is the raw data acquired
through remote sensing in the form of electromagnetic sig-
nals, photographic film, magnetic tape, or any other me-
64. See principle XII, in Principles, supra note 1.

65. See Cocca, supra note 14, at 277; Gaggero, supra note 20, at 271.
66. See Gaggero, Some Reflections on the Future of Space Law, PROC. 32ND
COLLOQUIUM L. OUTER SPACE 323, 325 (1989).
67. Principle I(a), in Principles, supra note 1.
68. Myers, supra note 30, at 362. Most remote sensing systems, how-
ever, have both military and civilian applications. For example, oceanic
reconnaissance satellites are not only used for target information but also
to track and capture narcotics smugglers. Since it is practically impossible
to separate military from non-military uses, the Principles attempt to ad-
dress the legality of the basic purpose of a system, but only when that
purpose is environmental. See B. HuRwrrz, supra note 19, at 90. It is
therefore questionable whether remote sensing data on the narcotics
smugglers, or even data on an armed conflict like the Iran-Iraq War, ema-
nating from a commercial/civilian satellite like LANDSAT or SPOT,
would be covered by the Principles. For a discussion of this problem, see
infra notes 157-62 and accompanying text. For an expansive interpreta-
tion of principle I(a) that includes this activity, see Sloup, Mediasat, Gray
Reconnaisance, and the New United Nations Principles,PROC. 30TH COLLOQUIUM
L. OUTER SPACE 385, 388 (1987).
69. This is of particular significance in light of the recent and develop-
ing use of remote sensing by the media. See infra Part VI.A.
dium. 70 "Processed data" is defined as primary data that has

been processed to a point where it can be interpreted. 7 '
Processed data, in other words, has had some value added to
it. The Principles define the third type of remote sensing
data, "analyzed information," as information resulting from
the interpretation of processed data by use of both the data
and knowledge from other sources. 72
Principle I defines "remote sensing activities" as (1) the
operation of remote sensing space 5ystems; (2) primary data
collection and storage; and (3) activities in processing and
interpreting data as well as disseminating the processed
data.73 The Principles create different rights and obligations
for the sensed and sensing entities with respect to the three
different types of data.74
1. PrinciplesConcerning Cooperation
Several of the Principles are designed to bring the bene-
fits of remote sensing to the developing world through inter-
national cooperation and mutual assistance. Principle II
states that all remote sensing activities should be carried out
for the benefit and interests of all countries, regardless of
their levels of economic, social, or technological develop-
ment, taking the needs of the developing countries into par-
ticular consideration. 75 Under principle III, general interna-
tional law applies to remote sensing activities, and those ac-
tivities are formally brought under the rubric of the U.N.
Charter and the Outer Space Treaty.
Several of the principles govern cooperation among
states. Principle V mandates that states carrying out remote
70. Principle I(b), in Principles, supra note 1.
71. Id principle I(c).
72. lId principle I(d).
73. Id principle I(e)
74. Note for example that the definition of remote sensing activity does
not include dissemination of analyzed information. This could be a signifi-
cant omission, particularly for developing countries with underdeveloped
analysis capabilities.
75. There is empirical evidence that a system of open skies and free
dissemination lends itself to the type of international cooperation called
for by the Principles. An example is the U.S. LANDSAT system. Its
ground stations around the world,joint participation in science programs,
and wide dissemination of information show how the benefits of mutual
assistance can be realized. Magdelrnat, supra note 50, at 120.
sensing activities promote international cooperation by pro-

viding other states with the opportunity to participate in
these activities. 76 Principle VI encourages states, through
formal agreements or other arrangements (and in particular,
within the framework of regional agreements) to provide for
the establishment and operation of data collecting and stor-
age stations as well as processing and interpretation facili-
ties. Principle VII mandates that states participating in re-
mote sensing activities provide technical assistance to other
interested states on mutually agreeable terms. In a call for
international cooperation and with regard for the needs of
developing countries, principle XII requires that a state car-
rying out remote sensing must, upon request, enter into con-
sultation with a state whose territory is sensed. This is to
provide such states the opportunity to participate in and en-
77
joy benefits from such sensing activities.
In order to encourage cooperation and maintain some
degree of international regulation, two of the principles
make use of the United Nations as a means for governing
space law. Principle VIII calls on the United Nations and the
relevant agencies within the United Nations system to pro-
mote international cooperation, including technical assist-
ance and coordination in the area of remote sensing. 78 Prin-
ciple IX, in accordance with the Registration Convention, re-
quires a state engaged in remote sensing to inform the
Secretary-General of the United Nations. This principle re-
quires the sensing state to make available to any state that so
requests any other relevant information, to the greatest ex-
tent practicable.
2. Principles ConcerningSovereignty
The fifteen year controversy over the formulation of the
Principles centered on those provisions that were specifically
76. This is an concept analogous to the Outer Space Treaty's call for
space-faring nations to allow other countries to participate in their space
activities. See supra notes 34-36 and accompanying text.
77. This is also designed to help protect the interests of the sensed
states.
78. The Principles' goals of cooperation and mutual assistance appear
to be taken seriously by the sensing states as well as by the U.N. COPUOS
Scientific/Technical Subcommittee. See, e.g., Training Course, supra note
2.
designed to protect the sensed states from exploitation by

the states with remote sensing capabilities.7 9 The Principles
reflect these concerns; they attempt to strike a balance be-
tween an "open skies" policy and one respecting inherent
rights of states.
Principles IV and XII represent the core space law con-
cepts unique to the international law of remote sensing.
Principle IV assimilates the equality principle of the Outer
Space Treaty. Under this principle, remote sensing activities
are to be carried out for the benefit and in the interests of all
countries.80 This principle goes further, however, by ensur-
ing that states conduct these activities with respect for the
principle of full and permanent sovereignty8 ' of all states
and peoples over their own wealth and natural resources.
These activities must not be conducted in a manner detri-
mental to the legitimate rights and interests of the sensed
82
state.
Principle XII attempts to reconcile the right of states to
engage in remote sensing with the rights of sensed states.
This principle provides that a sensed state shall have access
on a nondiscriminatory basis and at reasonable cost to pri- 83
mary data concerning the territory under its jurisdiction.
The sensed state also shall have access to the available ana-
79. See supra text accompanying notes 66-74.

80. See supra text accompanying note 24.
81. See supra note 46.
82. When remote sensing activities take place, there is a dash between
sovereignty interests: the sovereignty of the sensing state to engage in
remote sensing conflicts with the sovereignty of the sensed states over
their natural resources and information pertaining to them. Myers, supra
note 30, at 363. The Principles attempt to strike a balance: the right of
the sensing state to conduct remote sensing activities is generally recog-
nized by the Principles, while principles IV and XII ensure the sensed
state's access to the data.
83. There has been some question as to what the phrase "territory
under its jurisdiction" includes for purposes of the scope of the access
principle. It is not dear from the text whether this phrase encompasses
territory only, or rather both territory and zones of national jurisdiction of
the sensed state. An important question is whether the right of a sensed
state to nondiscriminatory access to relevant data and information also ap-
plies to marine areas under its jurisdiction-in particular, the exclusive
economic zone and the continental shelf'. Danilenko, Prinriples Relating to
Remote Sensing of the Earthfrom Space: TerritorialSphere of Applicatiwn, PRoc.
30TH CoLLoquIuM L. OUTER SPACE 289, 290 (1987). Generally, states will
INTERNATIONAL LI W AND POLITICS [Vol. 23:599
lyzed information concerning the territory under its jurisdic-

tion in the possession of any state participating in remote
sensing activities on the same basis and terms. Thus, princi-
ple XII tries to take into account the needs and interests of
the developing countries; this principle attempts to ensure
that sensed states benefit from the activity and that informa-
tion from remote sensing is freely disseminated. To mini-
mize harm caused by disparities in the amount of informa-
tion different states can obtain, this principle must be
designed to ensure open dissemination in the face of techno-
84
logical breakthroughs and political changes.
Two of the remaining principles further outline the du-
ties of sensing states. In general, principles X and XI govern
the disclosure requirements for information relating to envi-
ronmental dangers and disasters. Principle X requires sens-
ing states to disclose to concerned states any information
that could help avert harm to the earth's environment. Prin-
ciple XI requires states that have identified, processed, and
analyzed information in their possession to disclose that in-
formation promptly to affected states if that information
could be useful to those states in preventing harm from an
impending natural disaster.
Principle XIV governs international responsibility for
remote sensing activities. It provides that states operating
remote sensing satellites shall bear international responsibil-
ity for their activities and assure that such activities are con-
ducted in accordance with the Principles and the norms of
international law. Responsibility inures to the sensing state
regardless of whether the sensing activity is carried out by
governmental or non-governmental entities or by interna-
tional organizations to which such states are parties. Princi-
ple XIV thus recognizes that government agencies are not
the only entities conducting remote sensing activities.8 5
Whether this principle is comprehensive enough to ensure
be left to interpret this phrase in principle XII, unless the legal instrument
is refined in a later form. See id. at 293.
84. This Note attempts to analyze the threats to the nondiscrimination/
equal access concept and how the legal regime of remote sensing can be
shaped to deal with these problems in the future. See infra Parts IV.D. &
V.C.
85. There is an increasing trend toward commercializing such activity.
See infra Part V.A.
that commercial entities will comply with international law8876

in an area of the law that is predominantly state oriented
remains to be seen. Finally, principle XV provides that any
dispute arising under the Principles be resolved through the
established procedures for the peaceful settlement of dis-
putes.
C. Legal Effect of the Principles

The Principles are a product of COPUOS's drafting ef-
forts and consensus process as passed by the General Assem-
bly in U.N. Resolution 41/65. Unlike an international treaty,
which binds its signatories,8 8 a resolution of the General As-
sembly does not bind member states.8 9
However, insofar as such pronouncements represent the
consensus of the international community with respect to an
area of space law, they have been said to represent "instant"
customary law. 9 0 To the extent that the Principles ratify as-
pects of customary activity, they confirm and add legitimacy
to customary rules.91 However, the U.N. Resolution cannot
transform the Principles into customary international law if
92
they have not found their way into accepted practice.
Thus, for example, principle XII's guarantee of equal access
86. In general, commercial space projects are not exempt from general
regulations and principles of international law for space activities. Bit-
tlinger, PrivateSpace Activities: Questions of International Responsibility, PROC.
30TH COLLOQOJiM L. OUTER SPACE 191 (1987). The product of remote
sensing activities is, however, a result of ground activity as well. For a
discussion of whether the Principles adequately ensure compliance by
commercial entities, see infra text accompanying notes 205-18.
87. Rzymanek, Some Legal Aspects of Commerdalizationof Outer Space, PROC.
30TH COLLOQUiUM L. OUTER SPACE 246 (1987).
88. See L. HENKIN, R. PUGH, 0. SCHACHTER & H. SMrr, INTERNATIONAL
LA-,v: CASES AND MATERIALS 579-604 (1980).
89. U.N. CHARTER art. 13, para. 1(a). U.N.resolutions on substantive
matters usually have the legal status of non-binding recommendations.
Kopal, Principles Relating to Remote Sensing of the Earth from Outer Spaw A
Significant Outcome of InternationalCooperation in the ProgressiveDevelopment of
Space Law, PROC. 30TH CoLLoquiuM L. OUTER SPACE 322 (1987). Compli-
ance depends on the respect accorded the resolution by each nation.
Cocca, supra note 14, at 278.
90. See supra note 21 and accompanying text.
91. See Christol, supra note 48, at 41.
92. Id But see Gaggero, supra note 20, at 271-72 (suggesting that due to
the length of deliberation and the consensus result of COPUOS, Resolu-
and open dissemination of remote sensing data, particularly

with regard to the sensed state, can only be called customary
international law insofar as states abide by the concept in
practice. 93 Two notions contained in the Principles rise to
the level of customary international law as a result of a solid
basis in state practice: the right of states and other entities
to engage in remote sensing activities, 94 and the concept of
general international cooperation and mutual assistance with
regard to the benefits of remote sensing. 95
COPUOS, and by extension the General Assembly, is
recognized as the body with authority to legislate space law.
Indeed, as a result of the consensus process, some of
COPUOS's drafts have had binding effect even before being
adopted by the General Assembly. 9 6 In addition, declara-
tions of principles adopted on occassion by the General As-
sembly concerning international matters other than space ac-
tivities have a special place among General Assembly resolu-
tions. Since they declare general rules of conduct, these
documents express a legal conviction of all members of the
world organization concerning their subject matterY7 As a
result they have a certain positive legal effect. In many cases,
these documents were the first stage in the lawmaking pro-
cess, serving as a basis for the negotiation of international
agreements on given subjects and as an initial formulation of
98
future treaty provisions.
tion 41/65 has a crystallizing effect, transforming the entire document into
"instantaneous international custom").
93. See Christol, supra note 48, at 41.
94. Id.
95. See generally Training Course, supra note 2. The activities of LAND-
SAT also support this proposition. See Magdel6nat, supra note 50, at 120.
The Soviet Union appears to be engaging in international cooperation as
well. COPUOS Report of the Scientific and Technical Subcommittee on
the Work of Its Twenty-Fifth Session, U.N. Doc. A/AC. 105/409, at 13
(Mar. 1, 1988).
96. See B. HuRwrrz, supra note 19, at 22-23 (discussing the 1963 Decla-
ration of Principles).
97. Kopal, The Role of United Nations Declarationof Principles in the Progres-
sive Development of Space Law, 16J. SPACE L. 18-19 (1988).
98. Id. The leading example of this in the space law arena is the 1963
"Declaration of Legal Principles Governing the Activity of States in the
Exploration and the Use of Outer Space," which served as the precursor
to the 1967 Outer Space Treaty. The Outer Space Treaty was essentially a
restatement of the 1963 Resolution. Kopal, supra note 89.
1991] 1IW OF REMOTE SENSING
The Principles are binding only to the extent that their

broad concepts have general effect, and they do not function
as a specific legal code. Any binding effect the Principles
may have as a specific code depends on how they are incor-
porated in the developing international law of remote sens-
ing. Unlike previous declarations of principles, the princi-
ples regarding remote sensing attempt to establish general
regulatory norms of conduct with a precise area of applica-
tion.9 9 However, the Principles failed to achieve the status of
a well defined legal code; in the process of compromise nec-
essary to produce consensus, the Principles were watered
down to the point where they only restate general concepts
of international space law or formalize existing customary
practice.10 0 Thus, in light of the nature and effect of U.N.
Resolutions in this area, Resolution 41/65 should be seen as
having the defacto full force of positive international law only
with respect to general legal notions and assimilated custom-
ary provisions.
Resolution 41/65 should be understood as only one
stage in the development of an international legal regime for
remote sensing.10 ' The Principles are significant as an inter-
mediate point in the lawmaking process in that they formal-
ize several general norms of conduct. However, it is at the
later stages of legal development that specific rights and ob-
ligations can be clarified in a meaningful way. This is partic-
ularly true given that in the area of space law, reassessment
and revision are needed in order to reflect new political de-
102
velopments and technological progress.
The Principles represent an effort to define the current
status of the international law of remote sensing, and any
discussion of this area of international law must begin with
them. However, the Principles' lack of specificity and scope,
as well as their somewhat limited legal effect, necessitate
99. Kopal, supra note 97, at 15.

100. See, DeSaussure, Remote Sensing Satellite Regulation by National and In-
ternationalLaw, 15 RUTGERS COMPUTER & TECH. LJ. 351 (1989).
102. Jasentuliyana, supra note 18, at 224. A practical problem with this
notion is the inherent tension between the rapidity of technological
change and the contrasting time consuming nature of the formulation of
international law. COPUOS has attempted to rectify this temporal dispar-
ity.
elaboration in order to deal with the current status of remote

sensing practice. The next section of this Note discusses
some of the important political and technological develop-
ments that the Principles fail to take fully into account.
IV. IMPLICATIONS OF IMPROVED COMMERCIAL REMOTE

SENSING TECHNOLOGY: THE BLURRED MILITARY/
CIVILIAN LINE
Largely due to improvements in technology, commercial
remote sensing satellites designed to sense the Earth primar-
ily for environmental information are now being used for na-
tional security and military purposes. This fact has impor-
tant implications for the future of international law in the
area of remote sensing.
A. Resolution and Extent of Commercial Remote Sensing

There has been a dramatic increase in both the quality
and quantity of remote sensing satellites over the past ten
years.10 3 Although satellite technology was once the sole
province of the superpowers, other Western and some of the
more advanced developing countries now have the capability
10 4
to launch and operate remote sensing satellites in space.
1. Existing Remote Sensing Systems
The United States was the undisputed leader in remote
sensing technology for years due to the development of the
LANDSAT system. 10 5 In recent years, LANDSAT has under-
gone various financial and other difficulties 10 6 that have left
its managers with the prospect of a temporary shut-down of
103. See De Santis, Commercial Observation Satellites and Their Military Impli-
cations: A Speculative Assessment, WASH Q., Summer 1989, at 185.
104. France, in conjunction with Spain and Italy, is making inroads on
the superpower domination in the area of military reconnaissance satel-
lites by planning to launch Helios, a satellite with a resolution of about
one foot. Broad, Non-Superpowers Are Developing Their Own Spy Satellite Sys-
tems, N.Y. Times, Sept. 3, 1989, at Al, col. 1. Arianespace, the French
launching agency, has received government approval to launch Helios in
late 1993. FranceApproves Launch by Ariane of Helios Reconnaissance Satellite,
AVIATION WEEK & SPACE TECH., June 4, 1990, at 30.
105. Foley, Commercial Space Shows Long-Term Promise Despite Early Setbacks,
AVIATION WEEK & SPACE TECH., Mar. 20, 1989, at 118.
106. See Foley, Reagan Asked to Intercede to Save Landsat Program, AVIATION
1991] LA W OF REMOTE SENSING
service.' 0 7 The two U.S. LANDSAT satellites collecting data

in the 1980s were to end operation at the close of the dec-
ade, but LANDSAT 6, the follow-on satellite, will not be
launched earlier than March 1991. Furthernmore, prospects
for future satellites are unclear.10 8 Thus, the ability of
LANDSAT to provide continuous remote sensing service
may be called into question.
Other nations have challenged the U.S. lead. Most nota-
ble has been France, which in February 1986 launched the
first of its Satellite Pour L'observation de la Terre (SPOT)
remote sensing satellite systems.' 0 9 SPOT cameras take
photographs that are sold to commercial and governmental
entities for a variety of scientific and land use purposes, '0
and sales have grown steadily since the first SPOT satellite
went into orbit."'
The Soviet Union, which had previously used satellite
imagery largely for military reconnaissance purposes, has de-
veloped its remote sensing capabilities and is marketing sat-
ellite imagery to foreign nations through its Soyuzkarta trade
association. 12 Japan is engaging in remote sensing activity
with its Marine Observation Satellite, MOS-1, which has
some features similar to those of SPOT. 13 In addition, Can-
ada has approved development of the Radarsat remote sens-
ing satellite, to be launched in 1994.114
China and Brazil plan to launch a 3000 pound earth
WEEK & SPACE TECH., Apr. 6, 1987, at 30; New Landsal Plans Could Termi-
nate Eosat Contract,AVIATiON WEEK & SPACE TECH., Sept. 28, 1987, at 139.
107. Growth, Stability Predicted for Commercial Space Ventures, AvAlirN
WEEK & SPACE TECH., March 14, 1988, at 108.
108. Id
109. Onjanuary 21, 1990, SPOT 2 was placed into orbit. The French
plan to launch SPOT 3 in 1992 to replace SPOT 2. An upgraded SPOT 4,
with a life span of five years, will be launched in the middle of the decade.
Satellite PhotographyReceives Boost as SPOT 2 is Launched, DEFENSE ELECToN-
ics, Mar. 1990, at 78.
110. De Santis, supra note 103, at 186.
111. Satellite Photography Receives Boost as SPOT 2 is Launched supra note
109.
112. Lindgren, Commercial Satellites Open Skies, Bua.. ATOM. Sc., April
1988, at 34.
113. Japanese MOS-1 Satellite Images Kyushu Island, AvtArO WEEK &
SPACE TECH., Mar. 23, 1987, at 62.
114. Foley, CanadaApproves Development of Scaled Back Radarsal, AvxAxr0N
WEEK & SPACE TECH., July 13, 1987, at 51.
INTERNATIONAL LA W AND POLITICS (Vol. 23:599
imaging satellite in 1992 under a joint development pro-

ject.1 1 5 India has already developed a remote sensing satel-
lite with a thirty-six meter resolution, the IRS l-A, which was
launched into orbit by the Soviet Union in March 1988.116
Finally, international organizations also are undertaking re-
mote sensing activities. For example, the European Space
Agency will soon launch its first remote sensing satellite,
ERS-1, to be followed by the launching of a second satellite
in 1993.117
2. Improvements in the Technology: Increased Resolution

In addition to the increase in the number of remote
sensing satellites being launched, there has also been great
improvement in the ground resolution of images produced
by some of these satellites. "Ground resolution" refers to
the satellite's ability to detect objects on the earth. Satellites
that produce imagery with a resolution of fifty meters, for
example, can detect objects only as small as fifty meters in
length.1 8 Current LANDSAT images have a ground resolu-
tion of approximately thirty meters.1 1 9 SPOT can capture
120
images of objects as small as ten meters.
The French are planning to complement their SPOT se-
115. China, Brazil to Develop Earth Imaging Satellite, AVIATION WEEK &
SPACE TECH., Mar. 7, 1988, at 29.
116. De Santis, supra note 103, at 189; U.N. CHRON., June 1990, at 35.
117. Scientific and Technical Subcommittee Report on Its 25th Session,
supra note 95, at 13; Bour6ly, Legal Problems Posed by the Commercialization of
Data Collected by the European Remote Sensing Satellite ERS-1, 16 J. SPACE L.
129, 135-36 (1988) (explaining the technical capabilities and purposes of
the satellites).
118. Fotos, Commercial Remote Sensing Satellites GenerateDebate, Foreign Com-
petition, AVIATION WEEK & SPACE TECH., Dec. 19, 1988, at 48-5 1.
119. ISMA, supra note 26, at 10; Krepon, Spying From Space, FOREIGN
POL'Y, Winter 1989, at 93. The future satellites that EOSAT wants to de-
sign would have five-meter resolution. Foley, EOSAT Urges U.S. to Fund
LANDSAT 7 to Capture Minor Share of Data Market, AVIATION WEEK & SPACE
TECH., May 1, 1989, at 89.
120. Krepon, Peacemakers or Rent-a-Spies, BULL. ATOM. Sci., Sept. 1989,
at 13. Furthermore, the resolution of SPOT or any commercial satellite
could be improved by lowering its orbit to the height of military satellites.
If SPOT-i were moved from its current orbit to one 200 kilometers above
the earth, its resolution would improve from ten meters to three meters.
Florini, The Opening Skies: Third Party Imaging Satellites and U.S. Security, 13
INT'L SECURITY 91, 95 (1988).
ries with a radar-equipped Earth resources satellite that

2
could produce imaging resolution as low as two meters.' '
The Soviet Union has been selling imagery with a resolution
of five meters, and it has enhancement techniques that can
improve that figure to two meters.1 2 2 To compete with the
French and Soviets, the Reagan Administration lifted the
U.S. ten-meter limit on the permissible resolution of com-
23
mercial remote sensing satellites.
It is quite possible that the competitive pressures of the
commercial remote sensing industry will result in standard
t 24
one-meter spatial resolution by the end of the century.
Resolution of this quality begins to approach the resolution
of military reconnaissance satellites.' 2 5
B. The Blurred Line: Military Uses for Commercial Sensing

Images from SPOT and even LANDSAT can be and
have been used for military purposes.1 2 6 Even the most in-
nocuous environmental uses of remote sensing can have mil-
itary applications. For example, in a time of war, forecasting
the weather can be helpful for strategy and troop move-
121. France Defines Satellite to Complement SPOT Series, AVIATION WEEK &
SPACE TECH., Oct. 23, 1989, at 48.
122. Fotos, supra note 118, at 51. The Soviet system does have some
drawbacks, however, as Soyuzkarta uses film-return satellites rather than
the electro-optical and digital technology of SPOT and LANDSAT. This
poses some limitations on how the imagery can be manipulated. Id at 55.
123. Covault, Reagan's New Space Policy Backs Commercial Projects, Mars
Technology, AVIATION WEEK & SPACE TECH., Jan. 25, 1988, at 25.
125. Although the specifications of true military reconnaissance satel-
lites remain classified, these satellites are believed to be capable of resolu-
tion of between 0.1 and 0.3 meters. See Lindgren, supra note 112. at 35.
The resolution on military reconnaissance satellites is so precise that "mil-
itary satellite photos of a Soviet shipyard dearly reveal the mullions on
factory windows and girders on a crane." Zimmerman, Photosfrom Space:
Why Restrictions Won't Work, TECH. REv., May 1988, at 47 (citing data fur-
nished to Jane's Defense Weekly by Samuel L. Morrison, who was working
for the U.S. Naval Support Center, Morrison was later convicted of espio-
nage for revealing classified information).
126. The sensitivity of these images is evident in the SPOT Image Com-
pany's refusal to sell Middle Eastern imagery, except to government
sources, since the Iraqi invasion of Kuwait. Broad, Satellites .1onitorthe De-
sert, N.Y. Times, Aug. 28, 1990, at Cl, C9, col. 1; Burgess, Satellites Gaze
Provides New Look at War, Wash. Post, Feb. 19, 1991, at A13, col. 3.
ment. 12 7 These images can be used for more classic military

intelligence information as well; even the less precise resolu-
tion of LANDSAT has produced 128
identifiable images of the
Soviet Sary Shagan test range.
Civilian remote sensing satellites, with resolutions of
five and ten meters, have a wide variety of more traditional
reconnaissance applications as well. Aviation Week and Space
Technology has published detailed SPOT images of Soviet mil-
itary installations, including detailed photographs of Soviet
nuclear weapon storage facilities at Murmansk and Sever-
omorsk, where the Soviet Northern Fleet is based.' 29 Other
SPOT photographs of the naval base on the Barents Sea in
the northern USSR detailed changes in a secret facility rede-
signed to house the Soviets' new "Typhoon" class subma-
rine.' 3 0 A study done by Grayscale, an image analysis firm,
concluded that such SPOT data would be adequate for mili-
tary targeting of an intermediate nuclear weapons facility. 131
It is no secret that SPOT's data is being used for military
purposes.' 3 2 In fact, the promotional materials for SPOT
advertise its reconnaissance applications. Its company
brochure, "Surveillance," features intelligence gathering
uses. 13 3 For example, it specifies that the highly accurate
digital terrain models obtainable from SPOT imagery allow
the development of targeting data banks, "plotting of low-
altitude routes over unknown or inaccurately mapped areas,
... in-flight terrain following to assist penetration" at low
altitude and high speed, and simulator training to raise "the
127. M. BENKO, W. DE GRAAFF & G. REIJNEN, supra note 55, at 9.

128. Krepon, supra note 120, at 13.
129. French Spot Satellite Shows Soviet Northern Fleet Facilities, AVIATION
WEEK & SPACE TECH., Mar. 2, 1987, at 44.
130. Covault, Spot PhotographsSecret Basefor USSR Nuclear Submarines, Avi-
ATION WEEK & SPACE TECH., July 20, 1987, at 18.
131. Kennedy & Marshall, A Peek at the French Missile Complex, BULL.
ATOM. Sci., Sept. 1989, at 20-23 (reporting the results of the study). They
also conclude that at half the perceived resolution, equivalent to LAND-
SAT's maximum capable resolution, it would be difficult to make out the
military positions. Id. at 23.
132. The company acknowledged that photos are sold to military cus-
tomers worldwide. Satellite Photography Receives Boost as SPOT 2 Is Launched,
DEFENSE ELECTRONICS, Mar. 1990, at 78.
133. Zimmerman, Evidence of Spying, BULL. ATOM. SCIENTISTS, Sept.
1989, at 24.
pilot and crews to the technical level demanded to accom-

plish missions in situations complicated by enemy action and
adverse weather conditions."' 3
Purchasers of commercial sensing images have used
these images to track events having military implications. 13 5
The French company that sells SPOT remote sensing pic-
tures, SPOT Images, reportedly sells eighty percent of its
material to the military.' 3 6 Most recently, the Pentagon has
used SPOT images to supplement photos from its own spy
satellites to monitor the situation in the Persian Gulf.13 7 Tel-
evision stations have used remote sensing images for news-
casts of such events as the Chernobyl nuclear accident and
the Iran/Iraq war.1 38 Iran and Iraq have also purchased
SPOT images frequently,13 9 and may have used them for at-
tack planning or post-attack assessment.' 40 The West Ger-
man foreign intelligence service revealed in a report to the
Bundestag that it learned from SPOT pictures that the new
industrial plant near Rabta in Libya is most likely a chemical
weapons factory. 14 ' In addition, the Pakistani and Israeli nu-

135. SPOT Image, as a matter of company policy, will not reveal its cus-
tomer list. Satellite Photography Receives a Boost as SPOT 2 Is Launched, supra
note 132. This Note, therefore, is forced to rely on information from sec-
ondary sources as to how SPOT images are actually being used and to
whom they are being sold.
136. Swahn, International Surveillance Satellites--Open Skies for All?, 25 J.
PEACE RESEARCH 229, 232 (no. 3) (1988).
137. Remote Sensing Demand Soars; SPOT Image Ban Hasn't Slowed Imagery
Demand in PersianGulf,Communications Daily, Aug. 24, 1990, at 2 (LEXIS,
Nexis library, Currnt file).
138. Media Satellite Could Complicate Military, Foreign Polity Activilies, AVIA-
MON WEEK & SPACE TECH., June 8, 1987, at 22. Other media uses in-
cluded broadcasting of the Soviet underground nuclear weapons testing
site at Semipalatinsk and the controversial Krasnoyarsk radar. Lindgren,
supra note 112, at 35. For discussion of implications of media use, see infra
text accompanying notes 234-83.
139. Zimmerman, supra note 133, at 24. SPOT sold Iraq high definition
photographs of Kuwait and Saudi Arabia three months before the August
2 invasion. Barber, FrenchSold Spy Photos to Saddam, Fin. Times (London),
Jan. 11, 1991, at 1 (LEXIS, Nexis library, Currnt file).
140. Zimmerman, supra note 133, at 24. Images of the Basra-Fish Lake
region in particular could have been used to determine the location of
enemy installations, artillery batteries, SAM sites, and even machine gun
placements. Id.
141. Id,
clear facilities have been repeatedly sensed and imaged. 14 2

All this evidence has led many commentators to note that it
is difficult, if not impossible, to draw a line3 between civilian
14
and military satellite imaging capabilities.
C. Security Implications of the Blurred Line

The sharp resolution of commercial remote sensing
images has a profound effect on both U.S. and global secur-
ity. As a general matter, reconnaissance has many beneficial
and stabilizing uses. Satellite images can be used to verify
arms control agreements and have been essential for moni-
toring agreements on nuclear forces. 144 Satellite technology
could help deter surprise attacks, monitor cease fire and dis-
engagement agreements, and generally diffuse tense situa-
tions. 145
When two hostile parties both know what the other is
doing, both will be able to react defensively. 1 46 Reconnais-
sance of general military activities thereby encourages coun-
tries to be cautious in their security posture, which contrib-147
utes generally to a stabilization of international relations.
Ignorance of an enemy's capabilities breeds uncertainty, en-
genders fear, and heightens tensions; knowledge breeds sta-
bility.
These stabilizing characteristics of remote sensing satel-
lites depend on equal access to satellite information for all
interested parties. The theory of open skies works best when
the skies are truly open, as the superpowers have recently
48
come to realize.'
142. Id.
143. See, e.g., G. REYNOLDS & R. MERGES, supra note 57, at 182; B. HUR-
wrrz, supra note 19, at 90; M. BENKO, W. DE GAFF & G. REIJNEN, supra
note 55, at 7; Lindgren, supra note 112, at 34.
144. See ISMA, supra note 26, at para. 16, 21; Krepon, supra note 120, at
101.
145. Krepon, supra note 120, at 105-07.
146. A unilateral reconnaissance capability can produce a war-winning
advantage. Dr. Peter Zimmerman notes that "[b]eing able to see your op-
ponent's every move ... [is an] asset that could prove decisive." Broad,
supra note 126, at Cl, col. 3.
147. See C. CHRISTOL, supra note 5, at 8.
148. Proposals allowing reconnaissance flights over NATO and Warsaw
Pact territory are currently being negotiated. Lewis, U.S. Presents Planfor
German Unity, N.Y. Times, Feb. 13, 1990, at A10, col. 1.
1991] LA TV OF REMOTE SENSING
However, the proliferation of high resolution photo-

graphs of military installations and activities could have cer-
tain destabilizing effects. At the most fundamental level,
there will always be a material disadvantage to a sensed state
vis-4-vis a sensing state, as there will be an information lag
even under a free distribution scheme. 49 This lag could
pertain to information on natural resouces or climatic condi-
tions as well as data of a political or military nature.1 50 A
lack of symmetry between parties in this regard would handi-
cap a sensed state in any bilateral negotiation. 15 ' Further-
more, in times of crisis, the accelerated pace of decision mak-
ing means that acquiring information
52
quickly--ie., as quickly
as the adversary-is crucial.'
Unequal distribution of remote sensing information can
be dangerous in several ways. The transparency created by
remote sensing capability is likely to encourage states both
to conceal their military facilities and activities and invent
ways to deceive their adversaries. 153 Asymmetrical acquisi-
tion of satellite technology and information is especially de-
stabilizing and dangerous in regions rife with conflict and
where disparities in military capabilities are great.15 4 If, for
example, Libya received remote sensing images indicating
precisely where Chadian tank formations are located, while
Chad remained in the dark about the locale of the Libyan jet
149. G. REIJNEN, supra note 29, at 75.

150. Id
151. See id The nondiscriminatory access provision of the Principles is
designed precisely to deal with the detrimental effects of unequal knowl-
edge. See supra text accompanying notes 83-84.
152. Florini, supra note 19, at 120. The Cuban missile crisis is the classic
example of how the timeliness of reconnaissance information crucially af-
fects decision making. For a blow-by-blow account of those events, see R.
KENNEDY, THE THIRTEEN DAYS (1971).
153. De Santis, supra note 103, at 196. The use of deception produces
the same destabilizing effects as the misinterpretation of satellite imagery,
as both defeat the benefits of having open and accurate information. De-
veloping countries lacking expertise in photo interpretation and lacking a
data base against which to evaluate satellite imagery are more likely to
make errors in judgment than are those, such as the U.S., that possess
both. Id at 197. Principles of international cooperation and mutual
assistance, such as COPUOS-sponsored remote sensing training for devel-
oping nations, are designed to alleviate this problem. See Training
Course, supra note 2.
154. De Santis, supra note 103, at 197; Krepon, supra note 121, at 99.
fighter hangars, the information would create a temporary

"window of opportunity," making an attack a more attractive
strategic option for Libya. Future combatants likely will ac-
quire satellite, image processing, and anlalytic capabilities
unevenly. Such asymmetries-when added to disparities in
military capabilities-could provide important military ad-
vantages when new satellites provide sharper images with
short turnaround times.1 5 5 Hierarchical differences in the
ability to use information from space will be most apparent
in conflicts between highly industrialized and developing
countries, but they can also play a role in conflicts within the
56
second and third tiers.'
Furthermore, with the spread of remote sensing tech-
nology to the developing world, tensions could rise regard-
less of actual use. Whether or not a country seeks to use
commercial satellites for military purposes will be irrelevant
if its neighbors believe its motives to be aggressive. For ex-
ample, India's commercial satellite launch is likely to aggra-
vate security concerns in Pakistan. Similarly, Israel's access
to satellite imagery can be expected to heighten tensions
with the Arab states, and vice versa. 15 7 These heightened
fears could escalate regional arms races as developing rivals
seek new ways to compete. Once nations acquire new so-
phisticated weapons, such as high-performance strike aircraft
and ballistic missiles, they will likely position themselves to
use these miltary capabilities as the need arises. In this way,
use of remote sensing capabilities and new weapons feed on
one another.
The Iran-Iraq war provided a glimpse of how states
might jockey for satellite data in future cross-border con-
flicts. During that war, each combatant sought to improve its
capacity to aquire and enhance images from commercial
satellites. Precisely how Iran and Iraq used LANDSAT and
SPOT images remains a mystery, but news accounts gener-
ated by commercially acquired images suggested actual mili-
tary applications.15 8 Such images can help military and polit-
ical leaders evaluate changes on the ground over time and

156. Id. at 99.
158. Krepon, supra note 120, at 100. Reports dramatized Iraqi efforts to
plan attacks and countermeasures. 59 Like any asymmetrical

acquisition of intelligence, skewed acquisition of remote
sensing data can have negative security ramifications.
D. The Blurred Line and the Principles: How to Mitigate

Destabilizing Effects
How can international law mitigate the destabilizing ef-
fects of the blurred dvilian/military remote sensing line?
Unfortunately, the Principles have relatively little to say on
this matter. The Principles define remote sensing as the
sensing of the earth and remote sensing activities as those
activities using that sensing for the purpose of improving
natural resource management, land use, and protection of
the environment.' 60 Military applications are not within the
ambit of the Principles.
The operation of reconnaissance satellites is not subject
to restrictions under general international law,16 1 so the defi-
nition in the Principles clearly does not include reconnais-
sance satellites.' 6 2 The Principles are limited on their face to
the use of remote sensing for resource and environmental
enhancement. Indeed, COPUOS, in the development of the
Principles, never intended the scope of the Principles to be
so broad as to apply to military uses.163
Some commentators have suggested that because cer-
tain armed conflicts, such as the Iran-Iraq war, the war in
Vietnam, or most recently the Persian Gulf war, often have a
major impact on the environment, 16 4 remote sensing data of
such conflicts are covered by the Principles. 65 This inter-
pretation, however, is contrary to both a facial reading of
principle I and what appears to have been the intent of the
build artificial water barriers, Iranian construction to drain them, and Chi-
nese Silkworm missile shipments to Iran. Id.
159. Id
160. Principle I, in Principles, supra note 1.
161. See supra text accompanying notes 29-30, 68.
162. Myers, supra note 30, at 361-62.
163. See id
164. In fact, LANDSAT imagery was used to reveal the extent of the
damage from oil dumped into the Gulf by the Iraqis. Satellite Image Reveals
Oil Dumped in Gulf by Iraq, AVIATION WEEK & SPACE TECH., Mar. 4, 1991, at
24.
165. Sloup, supra note 70, at 388.
drafters, the Legal Subcommittee of COPUOS.166 The best

interpretation is one that excludes all military information
from the Principles.
Were military applications of commercial remote sens-
ing covered, the Principles would be useful for preventing
asymmetrical dissemination of information. They would
thus alleviate some of the destabilizing effects of the continu-
ally improving resolution of remote sensing satellites and the
more diffuse acquisition of remote sensing capabilities. As it
stands currently, however, evidence indicates that informa-
16 7
tion is not being distributed under equal access principles.
Part of the reason that operations such as SPOT and
LANDSAT are moving away from the equal access concept is
the increasing competition and commercialization of remote
sensing operations.1 68 The Earth Observation Satellite Co.
(EOSAT), which operates LANDSAT, and SPOT Image,
have adopted practices that allow some users to obtain
images far more rapidly than others. 169 This difference is ex-
acerbated by the uneven distribution of ground stations. A
nation operating a ground station obtains images directly
from the satellite and can process those images itself. This
means that such a state can obtain data about its regional
rivals rapidly, while a regional rival must apply to the ground
station, EOSAT, or SPOT for the information 170 and then
still face the impeding company policies. For instance,
166. According to the Vienna Convention on Law of Treaties, which can

be applied to the Principles by analogy, parties interpreting international
agreements should rely first on the text, then on the agreement's negotiat-
ing history, and finally on how it is being interpreted by state parties. Vi-
enna Convention on the Law of Treaties, art. 31, U.N. Doc. A/CONF. 39/
27 (1969). In light of the assymetrical distribution of militarily significant
information, see infra text accompanying notes 187-208, all three levels ap-
pear to point to an interpretation of the Principles that excludes all mili-
tary uses. Because the U.N. COPUOS operates on a consensus frame-
work, its procedures provide that even greater weight should be given to
the interpretation given by state representatives in the drafting committee.
N. GOLDMAN, supra note 3, at 69.
167. See infra text accompanying notes 200-03.
168. This phenomenon will be discussed in Part V of this Note. That
section will also deal with the coverage of the Principles vis-6i-vis private
commercial entities.
169. Spector, Keep the Skies Open, BULL. ATOM. Sm., Sept. 1989, at 15, 16.
170. Id. at 19.
1991] L4W OF REMOTE SENSING
Soyuzkarta, which operates Soviet remote sensing, has de-

clared that it will not release images of countries in the "so-
cialist community" to outside users.171
Due to the lack of scope of the Principles, principles IV
and XII have no force in the crucial area of information with
military application. Were these principles given force in
this area, such data could not be used to the detriment of the
sovereign interests of a sensed state, and such a sensed state
would have access to the information on a nondiscriminatory
basis. The Principles would thus promote a genuine open
skies policy, a policy that is necessary to realize the beneficial
security effects of high resolution and diffuse remote sensing
17 2
data.
As will be suggested in the conclusion of this Note, fu-
ture fomulations of the Principles should increase coverage
to extend to all applications of commercial remote sensing.
Reconnaissance satellites should remain outside the scope of
the Principles. The distinction between classified/recon-
naisance and unclassified/commercial material is necessary
to comport with the principles of customary law that recog-
nize the absolute legality of reconnaissance activity. Further-
more, the superpowers would not agree to any legal instru-
ment that required them to distribute their classified data
freely. However, by applying the principles of nondiscrimi-
nation and equal access to military applications of civilian re-
mote sensing, the negative security implications from asym-
metrical acquisition of remote sensing data could be miti-
gated.
V. THE IMPLICATIONS OF THE INTERNATIONAL

COMMERCIAL ZATION OF REMOTE SENSING
A. Trend Towards Commercialization

While international space law is steeped in the notion of
171. ad
172. The global benefit of open skies was noted by Rep. Robert Mrazek,
who wrote, "Open Skies would still entail monitoring military activities,
and in addition, use information to promote sustainable development and
economic growth in the Third World and Eastern Europe. A broad-based
mission of this type offers the best chance of slowly gaining the trust and
cooperation of all nations." Mrazek, Open Skies Benefit All Countries, DE-
FENSE NEws, May 28, 1990, at 24 (LEXIS, Nexis library, Currnt file).
INTERNATIONAL L W AND POLITICS [Vol. 23:599
space based activities conducted by sovereign states, private

and semi-private operators are increasingly dominating the
field. The United States took the lead in this regard. Begin-
ning with the Carter Administration and continuing with the
Reagan Administration, the dominant philosophy in space
development has favored private initiative 73 manifested in
the Land Remote-Sensing Commercialization Act of 1984
(the "LANDSAT Act"). 74 The basic aims of the LANDSAT
Act were to privatize the marketing and sale of remote sens-
ing data gathered by U.S. owned LANDSAT satellites and to
provide launch licensing procedures for private sector1 7-enter-
5
prises wishing to enter the remote sensing business.
Under color of the LANDSAT Act and in response to
the Department of Commerce's Request for Proposals,1 76
the LANDSAT contract was given to EOSAT, which is a joint
venture by RCA and the Hughes Corporation. EOSAT's
management of LANDSAT and its relationship with the gov-
ernment has been rocky from the start and has been exacer-
bated by the commercial competition from the aggressive
SPOT Image Corporation and other entities offering remote
sensing services. Some key congressional officials perceived
SPOT Image as aggressive and entrepreneurial, despite the
large subsidy it received, and perceived EOSAT as a
"bloated government contractor."' 77 For its part, EOSAT
complained bitterly about a lack of budgetary support on the
part of the Reagan Administration.' 78 EOSAT's funding
173. N. GOLDMAN, supra note 3, at 115. The Bush Administration re-

cently announced a new policy directive to boost the nation's beleaguered
commercial space industry. Stewart, Bush Seeks Boost for U.S. Commercial
Space Industry, L.A. Times, Feb. 10, 1991, at A29, col. 1.
174. 15 U.S.C. §§ 4201-4292 (Pocket Part 1989).
175. G.REYNOLDS & R. MERGES, supra note 51, at 299.
176. DEP'T OF COMMERCE, REQUEST FOR PROPOSALS FOR TRANSFER OF
THE UNITED STATES LAND REMOTE SENSING PROGRAM TO THE PRIVATE SEC-
TOR (Jan. 3, 1984). For a detailed discussion of the Request for Proposal
(RFP) and its implications, see Seabolt, InternationalAspects of the Proposed
Commercialization of United States Civil Land Remote-Sensing, 7 HAST. INT'L &
COMp. L. REV. 543 (1984).
177. New LANDSAT Plans Could Terminate EOSAT Contract, AVIATION
WEEK & SPACE TECH., Sept. 28, 1987, at 139, 140. EOSAT was criticized
for its financial support of a LANDSAT anniversary event at the Kennedy
Center in Washington and its sponsorship of a corporate box in Wolf Trap
park. Id.
178. Foley, Congress to Provide $62.5 Million for LANDSA T Follow-on Pro-
problems continue to this day; 179 these difficulties have re-

sulted in the prospect of a temporary cessation in LANDSAT
service' 8 0 and excellent commercial success by SPOT Im-
age.181
The results of commercialization have not produced the
boom for the U.S. that the government had hoped. A funda-
mental problem has been that EOSAT is dependent on sales
for revenue to develop satellites to replace those that be-
come obsolete.18 2 The French system, under which the gov-
ernment subsidizes satellite development while separating
and commercializing the sale of data,18 3 has served that
country much better.1i 4
gram, Pending Compromise with Administration, AvmnoN WEEK & SPACE

TECH., July 6, 1987, at 29.
179. The United States government refuses to ensure the future of the
LANDSAT program. Two million dollars were cut from the 1990 LAND-
SAT development budget and no funds have yet been allocated to pay for
the launch of the new satellite. Bond, Spies in the Sky, THE INDEPENDENT,
Mar. 19, 1990, at 17 (LEXIS, Nexis library, Currnt file).
180. See supra note 107.
181. Foley, supra note 178, at 30. A conservative projection of world-
wide revenues for SPOT in five years is $30 million annually. Growth, Sta-
bility Predictedfor Commercial Space Ventures, AVIATION WEEK & SPACE TECH.,
Mar. 14, 1988, at 108.
SPOT sales in the last quarter of 1990 were so strong that they ex-
ceeded total sales for all of 1989. Covault, Firms Selling Remote Sensing Data
Forecast Double-Digit Sales Growth, AVIATION WEEK & SPACE TECH., Jan. 7,
1991, at 33. SPOT Image expects a 30% growth rate in 1991. Id
As a result of the problems of EOSAT and the success of SPOT, the
National Oceanic and Atmospheric Administration (NOAA) has proposed
a merger between LANDSAT and SPOT in a commercial space venture
that would be patterned after the French system and dubbed "Super
SPOT." Covault, LANDSAT/SPOT Merger Talks Spark Debate on Commercial
Space Venture, AVIATION WEEK & SPACE TECH., Jan. 23, 1989, at 20.
Although the the Commerce Department is responsible for the
LANDSAT system, it delegated its regulatory authority to NOAA. 15
C.F.R. §§ 960.1-960.16 (1990).
182. Covault, supra note 181, at 21.
183. Id
184. This is evident in a comparison of future plans for launches:
LANDSAT 4 has already suffered systems failures and LANDSAT
5 will have been in orbit for seven years when the replacement is
launched, a year late, in 1991. EOSAT is unable to plan beyond
that data because no contract has yet been issued for LANDSAT
7. By contrast, the French government has already committed
B. Effect of Commercialization on Equal Access and

Nondiscriminatory Principles
Commercialization of remote sensing activities presents
a fundamental tension with principles of equal access to raw
and enhanced data and dissemination based on nondiscrimi-
nation that the U.N. Principles attempt to guarantee. Laws
such as the LANDSAT Act, which promote commercializa-
tion, are based on the principles of "freedom of private en-
terprise" and "freedom of competition," which at their ideo-
logical essence are at variance with the principles of equality,
nondiscrimination, and access to data contained in the U.N.
Principles.18 5 Competition among private companies will
only increase as resolution improves and these entities vie to
provide the best quality services to the highest bidder, rather
than ensuring that the remote sensing data is equitably dis-
seminated to sensed states with few processing and analyzing
capabilities. 16
The commercialization of the sale of enhanced remote
sensing data,1 8 7 as promoted by the LANDSAT Act, could
further harm nondiscrimination.18 8 Developing countries'
concerns are heightened by the prospect of a private opera-
tor selling both enhanced and raw data attempting to wield
monopoly power and hence economic leverage against
them.' 8 9 Most developing countries, despite the efforts of
COPUOS, lack processing technology and depend on either
the Agency for International Development (USAID), the Na-
tional Aeronautics and Space Agency (NASA), and now
SPOT, or private companies in the "value-added" indus-
itself to SPOTs 3 and 4, ensuring continued remote sensing cov-

erage until the end of the decade.
Bond, supra note 179, at 17.
185. See Bordunov, Legal Aspects of Private Activities in Space, PRoC. 29"ni
COLLOqUIUM L. OUrER SPACE 155 (1986).
186. Bour6ly, supra note 117, at 130.
187. Processed and analyzed data in the parlance of the Principles.
188. Conversely, enforcement of the nondiscriminatory distribution may
deter commercial operators, as their ability to sell to the highest bidder
would be undermined. Meredith, A ComparativeAnalysis of United States Do-
mestic Licensing Regimes for Private Commercial Space Activities, PROc. 32ND COL-
LOqUIUM L. OtrER SPACE 373, 376 (1989).
189. See Doetsch, Legal and Foreign Policy Implicationsof the LANDSA T Com-
mercializationAct, 24 COL.J. TRANSNAT'L L. 103, 121 (1985).
try.1 90 Developing countries fear that private operators

might enter the value-added industry and take advantage of
vertical integration to offer more timely and complete
processed data than competititors.' 9 1 For example, a pri-
vate operator may sell value-added data to a mining com-
pany with whom it has a dose ongoing relationship, putting
the company in an advantageous bargaining position com-
pared to the developing country, which receives unenhanced
data that it cannot readily use. In this way the developing
country could find its natural resources exploited without its
92
control or consent.
Another source of danger to nondiscriminatory provi-
sions lies in private companies asserting copyright claims to
the remote-sensed data. The LANDSAT Act, for example,
gives the private company the exclusive right to sell all data
for ten years,' 9 3 in effect giving it rights analogous to copy-
right ownership of such data.' 9 4 Although value added data
are not subject to the operator's exclusive rights to the data
in the statute, since developing value added data involves a
creative process, the operator that enhanced the data would
be able to claim copyright protection as well.' 9 5 Accord-
ingly, private owners could exercise their copyright peroga-
tive against their own or other governments. Other states
may reciprocate in kind, leaving much valuable data undis-
seminated.1 9 6 Furthermore, since raw data contains no orig-
inal man-made inputs, if the sensed country has played no
part in putting the information into a tangible medium, it
may have no intellectual property right in remotely sensed
information to counterbalance the copyright claim of a pri-
190. Idt
191. Id
192. See id
193. 15 U.S.C. § 4272(e).
194. Joyner & Miller, Selling Satellites: The Commerialization of LANDSAT,
26 HARV. INT'L LJ. 63, 99 (1985); see also Luxenberg, ProtectingIntellectual
Property in Space, PROC. 27TH CoLLoquium L. OUTER SPACE 174 (1984).
195. See Luxenberg, supra note 194, at 174 (stating that the resolution of
this issue "remains to be seen"). But see Bourtly, supra note 117, at 140
(international agreements on the protection of copyrights and the few na-
tional laws in existence do not fully protect the interests of those who re-
ceive and process remote-sensing data with a view toward commercializing
it).
196. Joyner & Miller, supra note 194, at 98.
vate company. 19 7
Privatization also creates a problem of state responsibil-
ity and international liability. As private activity increases, it
becomes more difficult for the government to monitor areas
of international liability and the compliance of private com-
panies with principles of international law.' 9 8 Commerciali-
zation separates the party that has responsibility for the ac-
tions in the international arena (the state) from the party that
actually conducts the remote sensing (the private enter-
199
prise).
Perhaps as a consequence of commercial pressures, in-
tellectual property rights, and the difficulties of enforcing in-
ternational responsibility on private entities, there is grow-
ing evidence that remote sensing data of all varieties are be-
ing disseminated in an uneven and discriminatory
manner. 20 0 SPOT Image has decided to resolve its conflicts
over "first come, first serve" by favoring larger customers
20
over smaller ones in the hope of increasing overall profits. '
Pierre Bescond, president of SPOT Image, said that the firm
is considering simply selling portions of each orbit for the
exclusive use of the highest bidder. 20 2 During the Iraqi oc-
197. Biondo, Problems of Remote Sensing: A Look at American Law for an Ap-
proach to Sensed States' Demands, 9 FLETCHER FORUM 447, 458 (1985). How-
ever, this lack of a copyright claim is alleviated somewhat by the provisions
of the Universal Copyright Convention, which may allow the developing
states to obtain data without authorization of the copyright holder (in this
case the remote sensing company) if the information is to be used for one
of the approved purposes, and the state pays some "just" compensation to
the holder as vaguely specified in article V(2) of the Copyright Conven-
tion. See Joyner & Miller, supra note 194, at 98.
This concept is based on the 1971 agreement giving developing states
the right to further their economic and cultural growth by reproducing
and translating works without authorization of the copyright holder.
UNESCO Universal Copyright Convention, Sept. 6, 1952, 6 U.S.T. 2731,
T.I.A.S. No. 3324, 216 U.N.T.S. 132, art. V, V bis, V ter, V quarter. For a
general discussion of this area of copyright law, see S. STEWART, INTERNA-
TIONAL COPYRIGHT AND NEIGHBORING RIGHTS 150-54 (1983).
198. See Joyner & Miller, supra note 194, at 100.
199. Zwaan & de Vries, Reguating Remote Sensing of the Earthfrom Outer
Space, Taking into Account the Present Trend of Privatisationof this Activity, PROC.
30Tm COLLOQUIUM L. OUTER SPACE 415 (1987).
200. See supra notes 167-71 and accompanying text.
201. Spector, supra note 169, at 16.
202. Id.
cupation of Kuwait, the Pentagon may have been monopoliz-

20 3
ing SPOT images of the Persian Gulf area.
In addition to the exclusionary policies of the parent
company, ground station operators can serve to deny open
and equal access to data. They can refuse to sell data, delay
the shipment of data, or deny that data even exists. 2° 4 SPOT
ground stations sometimes restrict the zone for which a sta-
tion is authorized to receive and distribute data. India's
agreement with SPOT Image, for example, authorizes India
to receive and distribute images only of itself, even though
its ground station is capable of receiving images of a much
wider area.20 5 The uneven distribution of ground stations
also results in a disparity in timely access to all types of re-
205
mote sensing information.
C. Legal Attempts to Deal With Commercialization International

and Domestic
The LANDSAT Act is an attempt to address some of the
problems associated with commercialization. It could serve
to restrict the benefits of remote sensing through both inter-
national space law and domestic law that authorizes such ac-
tivity. The disparities between international and municipal
space law, and the lack of specificity and force in the Princi-
ples call for a redrafting of certain provisions in the legal re-
gime of remote sensing.
1. InternationalResponsibility and Commercialization

The Principles incorporate the idea of state interna-
tional responsibility for any "national" space activities car-
ried out by governmental organizations or non-governmen-
tal bodies, reflecting a basic notion of space law promulgated
20 7
by the Outer Space Treaty and the Liability Convention.
203. COMMUNICATIONS DAILY, Aug. 24, 1990, at 2 (LEXIS, Nexis library,

Currnt file). SPOT is refusing to sell pictures of the Middle East to private
users. This has particularly upset the media, leading to charges that SPOT
is violating basic principles of open skies. Id
204. Zwaan & de Vries, supra note 199, at 415.
205. Spector, supra note 169, at 19.
206. For a discussion of this point with respect to military applications,
see supra text accompanying notes 149-52.
207. Outer Space Treaty, supra note 15, at art. VI; see also Liability Con-
vention, supra note 15.
INTERNATIONAL LAW AND POLITICS (Vol. 23:599
Under Principle XIV, states "shall bear international respon-

sibility for their activities and assure that such activities are
conducted in accordance with these principles ... irrespec-
tive of whether such activities are carried out by governmen-
tal or non-governmental entities." 2 08 This statement ap-
pears to mean that the requirement to disseminate data in a
nondiscriminatory fashion, as required by Principles IV and
XII, is extended to private commercial entities.
The Principles, however, are far from clear on this sub-
ject. They leave much discretion as to enforcement. It is
clear from the Outer Space Treaty and its incorporation by
the Principles that the international responsibility of all "na-
tional activities" connected with the use of the outer space
segment, i.e., the launching and satellite itself, is unambigu-
ously fixed.20 9 However, the Outer Space Treaty provision
used by Principle XIV 210 does not apply international re-
sponsibility to what are in essence ground activities. It is
doubtful that dissemination of analyzed information can be
considered a "national activity in outer space."2 1 1 While op-
eration of the satellites falls under the Outer Space Treaty,
responsibility for remote sensing activities are only a matter
of general international law. 2 12 As discussed earlier, given
the limited force of the U.N. Resolution and its dependence
on customary practice for its binding nature, 21 3 compliance
with the nondiscriminatory principles seems to be largely
subject to the discretion of state practice and even more so
to the behavior of the private entities themselves.
2. Nondiscrimination and the Private Operator

Ambiguities in Principle X11214 make suspect the appli-
cation of nondiscrimination in the face of commercialization.
The duty not to discriminate is extended by Principle XII
only to raw and processed data. Thus, the Principle allows a
208. Principle XIV, in Principles, supra note 1.

209. See Hampe, The InternationalLegal "Framework"for Conducting Remote
Sensing Activities, PROC. 30TH COLLOqUIUM L. OUTER SPACE 320 (1987).
210. Outer Space Treaty, supra note 15, at art. VI. See also supra notes
31-33 and accompanying text.
211. Hampe, supra note 209, at 320.
212. Zwaan & de Vries, supra note 199, at 414.
214. Principle XII, in Principles, supra note 1.
commercial entity to disseminate analyzed information to the

highest bidder.2 15 The Principle only requires that the
sensed state have access to available analyzed information on
the same basis and terms. The meaning of "available" as it
pertains to analyzed information is not clear.2 16 Principle
XII makes no mention of commercial entities, nor does it
clearly delineate any of the property rights that may be ac-
corded the sensed state or the owner of the analyzed infor-
2 17
mation.
In most cases, private companies rely on foreign ground
stations to collect data, which makes private compliance with
the nondiscrimination mandate in Principle XII even more
difficult to enforce. Any system of state responsibility, even
if dearly delineated, that definitively included data dissemi-
nation, could not account for a ground station in another
country denying possession of, witholding, or delaying the
distribution of information. 21 8 To protect against this diffi-
culty, a regime must use a more stringent international stan-
dard of nondiscrimination, one that holds all entities more
directly responsible, rather than relying on individual state
practices.
The other principles also fail to mention the role of the
private operator. Principles V, VI, and VII exhort states to
make opportunities available to other states for participation
in remote sensing activities, as well as to provide processing
and interpretation facilities, and to make technical assistance
available on mutually agreed-upon terms. With increased
commercialization, governments will no longer be in a posi-
tion to carry out this policy, as remote sensing activity will be
in private hands. Yet there is no affirmative requirement on
private operators to follow the Principles. 21 9 A profit seek-
ing entity is unlikely to involve developing countries in its
remote sensing activities if the financial return on such ven-
tures would be minimal.
215. Id
216. See Zwaan & de Vries, supra note 199, at 414.
217. See DeSaussure, supra note 100, at 362; DeSaussure, Remote Sensing,
The Interaction of Domestic and InternationalLaw, PROC. 30m CoLLoQuIUM L
OUTER SPACE 295, 297 (1987).
218. See Zwaan & de Vries, supra note 201, at 414.
219. Id
Principles X and XI,220 which require prompt disclosure

of information about impending natural disasters and envi-
ronmental catastrophes, make no mention of a duty of pri-
vate entities to disclose information of this nature. Principle
XIII requires a sensing state, upon request, to enter into
consultations with the sensed state for their mutual benefit.
Here, too, there is no mention of private parties. The Princi-
ple does not state exactly what must be disclosed or which
categories of data a company may restrict in accordance with
asserted intellectual property rights. 2 2 1 Private companies
are forced to abide by domestic regulations in many aspects
of business; international obligations regarding remote sens-
ing should be extended to them as well.2 22
3. Governance and Compliance in a Municipal Regulatory

Framework
As a result of the ambiguity in international responsibil-
ity and application of the Principles to commercial entities,
the responsibility of ensuring compliance with nondiscrimi-
natory principles is left in the hands of the individual states.
States have an active duty to regulate the space activities of
their own non-governmental entities, but have discretion in
so doing. 223 Due to commercialization, the nuts and bolts of
the process of enforcing compliance with the Principles is
not provided for by the international legal instrument itself,
but rather by municipal regulation.
The U.S. has attempted to regulate compliance through
the LANDSAT Act and subsequent regulations, particularly
those regulations that delegate regulatory authority from the
220. Principles X & XI, in Principles, supra note 1.

221. DeSaussure, Remote Sensing, The Interaction of Domestic and Interna-
tional Law, supra note 217, at 297.
222. One such proposal is an elaborate code of conduct, to be drafted
by a U.N. working group, for the dissemination and distribution of data.
This would serve as a multilateral guideline directed at the actual actors.
Placing moral or economic pressure behind it could induce private actors
to abide by it. Zwaan & de Vries, supra note 199, at 416.
Part VII of this Note offers a treaty proposal that incorporates the
notion of making private entities responsible for abiding by certain princi-
ples. It would be binding on companies operating out of the countries
that are signators to the treaty.
223. See Bittlinger, supra note 86, at 193.
Department of Commerce to the NOAA. 2 24 Both the LAND-

SAT Act and these regulations attempt to promote nondis-
criminatory access to remote sensed data. The LANDSAT
Act declares, as a policy, that civilian unenhanced remote
sensing data, i.e., unprocessed or minimally processed sig-
nals, should be made available to all users on a nondiscrimi-
natory basis. 2 25 The Act also provides that licenses to con-
duct remote sensing activities be granted only when the Sec-
retary of Commerce determines2 26that an applicant will comply
with international obligations.
This regulation is all the LANDSAT Act does to ensure
that private entities comply with the Principles, as Congress
eschewed any specific or stringent regulation that might fet-
ter commercial development. 2 27 The Act only applies the
nondiscrimination requirement to unenhanced data; it does
not attempt to enforce any principle XII obligations regard-
228
ing fully processed or analyzed information.
The regulation promulgated to facilitate the policy of
the LANDSAT Act moderately aids the enforcement of non-
discriminatory principles. It also requires licensees to oper-
ate in a manner consistent with the international obligations
of the U.S. and to make unenhanced data available on a non-
discriminatory basis. 2 29 It also requires identification by the
private entity of all "value-added" activity, like processing, as
well as requiring the provision of the medium in which the
data is published on a nondiscriminatory basis; however, the
value-added data itself remains the property of the licen-
224. 15 C.F.R. § 960.3 (1990).

225. 15 U.S.C. §§ 4203(b) & 4271(a) (1989). For a good general discus-
sion of this and the international obligation provisions, see DalBello, U.S.
Law and Space Technology: Land Remote Sensing, PRoC. 30"r CoILoquiuM L
OUTER SPACE 28 (1984).
226. 15 U.S.C. § 4241(b) (1989).
227. A long and detailed statute, specifying price restrictions, technical
standards, and myriad other issues, might lessen the commercialization
fears of ground station operators and developing countries, but it would
leave private operators little ability to respond quickly to commercial
problems or to evolve as technology changes. Logsdon & Monk, Remote
Sensingfrom Space: A ContinuousLegal and Policy Issue, 8 ANNALS AIR & SPACE
L. 409, 424-25 (1983).
228. DeSaussure, supra note 100, at 368.
229. 15 C.F.R. § 960.11(a), (b).
INTERNATIONAL L W AND POLITICS [Vol. 23:599
see. 230 In this way, the regulation attempts to protect the

rights of private system operators, certainly to a greater ex-
1
tent than Principle XII.23
The other significant way the regulation attempts to en-
sure compliance with international obligation is by requiring
prior approval for any license by both the State and Defense
Departments. 23 2 The grant allowing remote sensing by pri-
vate entities is subject to the determination that international
obligations will be met and national security interests will be
satisfied. 2 3 While this may ensure greater compliance with
the Principles on the part of EOSAT or any other U.S. entity,
the rules will not apply to SPOT Image; SPOT Image re-
mains subject only to its own interpretation of the Princi-
ples. 28 4 Thus, while domestic regulations have attempted to
enforce principles of international space law, they may not
go far enough to ensure equal access; i.e., to ensure the exist-
ence of a true open skies policy that would give the develop-
ing world maximum benefit from the technology.235
VI. USE OF REMOTE SENSING BY THE MEDIA AND

INTERNATIONAL SPACE LAW
Technological development of improved spatial resolu-
tion and the political development of the commercialization
of remote sensing activities have altered the calculus upon
which the Principles are based. Another product of these
two trends is the use of satellite pictures by mass media. Just
as the international law of remote sensing needs to adapt to
the developments discussed in Sections IV and V of this
230. Id § 960.11(b)(2).
231. See DeSaussure, supra note 100, at 369.
232. 15 C.F.R. § 960.9 (1990).
233. Id. It has been suggested that the breadth of NOAA's discretion
and the requirement of approval from both the State Department and the
Pentagon prior to any remote sensing activity constitute prior restraint, in
violation of the first amendment. See Merges & Reynolds, News Media Satel-
lites and the First Amendment, 3 BOALT HIGH TECH. L.J. 1 (1988).
234. Foley, Pentagon, State Dept. Granted Veto over U.S. Remote Sensing Satel-
lites, AVIATION WEEK & SPACE TECH., July 20, 1987, at 20.
235. See Howald, Private Space Activities and National Legislation, PROC.
32ND COLLOQOUIUM L. OUTER SPACE 344 (1989) (analysis of domestic regu-
lations of the U.S., Great Britain, and Sweden suggests that these coun-
tries are not likely to be in a position to control all national non-govern-
mental space activities legally and effectively enough).
Note, it must also adapt to the similarly significant but ig-

nored development of media use.
A. Media Use of Remote Sensing

Since the launching of SPOT in 1986, the media has fre-
quently purchased remote sensing data to augment features
on television broadcasts and in various publications. As
noted above, the media has used these pictures to depict
Persian Gulf hotspots, the Chernobyl disaster, and Soviet
missile warning radar.23 6 As the members of the media be-
come more familiar with the capabilities of remote sensing
satellites, the media will probably increase the use of images
from space. Soon, news stories dealing with environmental
issues, human migration, geoscience, natural disasters, and
military maneuvers could be routinely illustrated with pic-
23 7
tures produced by satellites.
The current LANDSAT and SPOT systems, while help-
ful, are largely inadequate to meet the media's growing de-
sire to reveal fast-breaking news stories through the use of
satellite-produced images. To use such images for routine
news reporting, satellite sensors would have to achieve reso-
lution of three to five meters,2 3 8 of which only the Soyuzkarta
satellite is currently capable. In addition, today's SPOT and
LANDSAT systems would be in the correct position to pho-
tograph a particular area only once or twice a week. 23 9 Fur-
thermore, "neither system is geared to operate with consist-
ently short turnaround periods from the time the raw data is
acquired by the orbiting sensor to the time photograph-qual-
ity imagery is available to the press and the public." 2 40 The
deficiencies of the two systems for the media also "arise out
of the fact that they must serve other groups besides the
236. See supra text accompanying note 138.

237. Zimmerman, supra note 125, at 47.
238. Frieden, Newsgathering by Satellites: A New Challenge to Inlernational
and NationalLaw at the Dawn of the Twenty-First Century, 25 STAN. J. IN 'L L
103, 107 (1988).
239. Zimmerman, supra note 125, at 47. A satellite could be designed to
photograph the entire earth in one day, cutting down the potential time
lag for production of an image from the time of its request to the time it is
produced to half a day. That would allow for much more effective media
use. Id
240. Sloup, supra note 68, at 386.
press, each with its own exigencies." 24 1 A system designed

to provide some service to a number of disparate user
24 2
groups often provides ideal service to none.
Media users are also beholden to the dissemination de-
cisions of commercial remote sensing operators. The 1990-
91 Persian Gulf crisis provides a telling illustration. SPOT
Image refused to sell images of the region to news organiza-
tions. 243 While EOSAT and Soyuzkarta were called upon to
pick up the slack, 24 4 the crisis in the Gulf has demonstrated
to the media the risks of becoming dependent on commer-
cial remote sensing sources for information, resulting in calls
for the development of an independent media satellite capa-
24 5
bility.
Consequently, some groups are examining the feasibil-
ity and desirability of a "mediasat," a spacecraft owned and
operated in whole or in part by a news media organization
and dedicated to news and information gathering activi-
ties.2 46 The high costs involved may prevent the construc-
tion of such a satellite. 24 7 However, the fact that it has been
contemplated, along with the fact that other devices for in-
creasing media use of remote sensing activities have been
promulgated, 24 8 points to political and legal questions that
241. Id.
242. Id. at 386-87.
243. Broad, supra note 126, at C9, col. 1; Spot Image Ban on Media Sales
Hampering News Coverage, Communications Daily, Jan. 28, 1991, at 4
(LEXIS, Nexis library, Currnt file).
244. Communications Daily, Aug. 24, 1990, at 2 (LEXIS, Nexis library,
Currnt file).
245. See id
246. DalBallo & Martinez, The Legal and Political Implications of Media
Newsgathering From Space, PRoc. 30m COLLOQUIUM L. OUTER SPACE 279
(1987).
247. The Office of Technology Assessment (OTA) estimated the cost of
a mediasat at $215-470 million for a one-to two-satellite system in orbit
with a five-year lifetime and five-meter resolution. Annual operations
would cost $10-15 million. Media Satellite Could Complicate Military, Foreign
Policy Activities, supra note 138, at 22.
248. For example, the media could operate their own ground receiving
and processing facilities and simply use the raw data from SPOT and
LANDSAT. Id. at 280. Or it could procure and fly one or more sensors
"piggyback" on another satellite in the proper orbit but owned and con-
trolled by another non-media entity. Sloup, supra note 68, at 387.
1991] 1LATW OF REMOTE SENSING
the current international legal regime of remote sensing has

failed to address.
B. PotentialDifficulties Posed by Media Use and Mediasat

The potential effects of the use of remote sensing by the
media on national security and sovereign and individual pri-
vacy have raised concerns. Some have suggested that media
use could increase the risk and visibility of military opera-
tions and complicate a country's foreign relations. 249 Satel-
lite images could allow the media to disseminate information
about military operations and troop movements, depriving a
country of tactical advantages and the element of surprise. 250
One commentator has written:
The media could reveal sensitive information in a
crisis making it difficult for leaders to respond
calmly and responsibly. Greater mediasat capabilit-
ites could provide classified intelligence to coun-
tries that do not own reconnaissance satellites. For-
eign governments might retaliate against the coun-
try which, under space law, bears international
responsibility for the satellite, should the press dis-
dose satellite images that embarrass or1 threaten the
25
national security of a given country.
There is also a fear that the press might misinterpret
images in a manner that would precipitate a crisis. The me-
dia's track record points to some difficulty in this area. In
covering the Chernobyl disaster, the media erroneously re-
249. Media Satellite Could Complicate Military, Foreign Policy Activities, supra
note 138, at 22.
250. Such security concerns motivated SPOT Image's refusal to sell pic-
tures of the Persian Gulf to the media during the recent crisis. See Bur-
gess, Satellites' Gaze Provides New Look at War, Wash. Post, Feb. 19, 1991, at
A13, col. 3.
251. Media Satellite Could Complicate Military, Foreign Polity Activities, supra
note 138, at 22-23; Frieden, supra note 238, at 174. But see Reimer, News
Gathefingfrom Space: Land Remote-Sensing and the First Amendment, 40 FED.
CoM. LJ. 321, 325 (1988) (current processing and analyzing limitations
make it highly unlikely that data could be publicized quickly enough to
damage security interests). However, Frieden notes that the media re-
ceives timely information through other channels, and most nations' intel-
ligence capabilities allow them to receive information of pending events
before they would be surprised by the media. Frieden, supra note 238, at
174-76.
INTERNATIONAL LAW AND POLITICS (Vol. 23:599
ported that there were two reactors on fire instead of just

one. 2 52 This may have contributed to general hysteria over
the crisis. 253 Mistakes about troop movements and other
genuinely sensitive information could send the wrong signals
to decision-makers
2 54
and precipitate a crisis where none would
otherwise exist.
Whether or not the media's use of remote sensing tech-
nology actually visits harms upon nations, media publication
of activities that a nation wishes to keep secret can be viewed
as a violation of such a country's sovereign interests. This
points to a conflict with Principle IV, which calls for con-
ducting remote sensing activities with respect for state sover-
eignty over wealth and resources and in a manner concomi-
tant with the legitimate rights and interests of sensed states.
However, there is a concept of international law that
says the world community has a legitimate interest in know-
ing certain practices of nations, particularly when those prac-
tices may violate an international agreement. 255 Further-
more, the recognition of the legality of military reconnais-
sance2 56 supports the legality of media use, as both
theoretically violate the full sovereignty of a nation. Even if
an event under observation would prove embarassing to the
sensed state if revealed, if that event is a legitimate concern
of another state under the terms of Principle IV itself, its rev-
257
elation by the media would not violate that Principle.
The final concern posed by media use as remote sensing
resolution improves is that of personal privacy.258 This issue
252. DalBello & Martinez, supra note 246, at 280.

253. Id.
254. Media Satellite Could Complicate Military, Foreign Policy Activities, supra
note 138, at 22-23. However, since a news organization's credibility is es-
sential to its existence, the media is likely to take whatever steps they need
to prevent such errors.
255. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217, 3
GAOR, U.N. Doc. 1/777 (1948); Convention on the Prevention and Pun-
ishment of the Crime of Genocide, G.A. Res. 2670, 3 GAOR, Part 1, U.N.
Doc. A/810 (1948).
257. See Sloup, supra note 68, at 389.
258. The five meter resolution of the Soyuzkarta remote sensing satellite
is sharp enough to detect objects in people's homes. See supra notes 5 & 23
and accompanying text. Future satellites with sharper resolution would
similarly have significant privacy implications.
is no different from the personal privacy issue posed by

other intrusive technologies such as electronic surveillance
or video cameras. The international law of remote sensing
does not address this issue at all, as the technology capable
of intruding on personal privacy has not been explored until
very recently.
The U.S. Supreme Court has provided guidelines in its
Fourth Amendment jurisprudence to deal with government
invasions of privacy. The Supreme Court has delineated a
zone of protection encompassing the areas where the indi-
vidual has a resonable expectation of privacy.2 59 This rea-
259. Justice Stewart first articulated the standard in Katz v. United

States, 389 U.S. 347 (1967), when he wrote:
[T]he Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection.... But
what he seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.
Id at 351.
Subsequent cases affirmed the reasonable expectation of privacy stan-
dard as the cornerstone of Fourth Amendment analysis. See, eg., Oliver v.
United States, 466 U.S. 170, 177 (1984); California v. Ciraolo, 476 U.S.
207, 211 (1986).
The precise meaning of a reasonable expectation of privacy has
proven more elusive, particularly in the context of aerial searches of "open
fields." Justice Holmes recognized that "the special protection accorded
by the fourth amendment to the people in their 'persons, houses, papers,
and effects' is not extended to the open fields." Hester v. United States,
265 U.S. 57, 59 (1924).
This exception was extended to mean that, in the case of an open
field, there was no reasonable expectation of privacy. See Oliver, 466 U.S.
at 178 ("an individual may not legitimately demand privacy for activities
conducted out of doors in fields, except in the area immediately surround-
ing the home"); Ciraolo, 476 U.S. 207 (holding that aerial photograph of
marijuana field did not violate reasonable expectation of privacy); Florida
v. Riley, 109 S.Ct. 693 (1989) (holding aerial photograph of marijuana
plants through open greenhouse roof did not violate Katz test). The most
recent articulation of the Katz test asks first whether the individual mani-
fested a subjective expectation of privacy in the object of the challenged
search, and second, whether society is willing to recognize that expecta-
tion as reasonable. Ciraolo, 476 U.S. at 211.
Several commentators have criticized the Court's recent decisions on
the open field exception as a retrenchment of the protections of Katz. See
Saltzburg, Another irctim of Illegal Narcotics: The Fourth Amendment (As Illus-
trated by the Open Fields Doctrine), 48 U. Prrr. L. REv. 1, 15-23 (1986); Com-
ment, Reviving Trespass-Based Search Analysis Under the Open View Doctrie.
sonable expectation of privacy could be incorporated into

the development of the international law of remote sens-
ing 260 to protect individuals from intrusion by the media and
from any other entity's disclosure of pictures that violate the
intimacy of an individual's private life. 26 l At the very least,
future developments should recognize the existence of a per-
Dow Chemical Co. v. United States, 63 N.Y.U. L. REV. 191, 227-228 (1988).
But see Note, Dow Chemical and Ciraolo: For Government Investigators the Sky's
No Limit, 36 CAm. U. L. REv. 667, 698 (1987) (Dow Chemical and Ciraolo
consistent with the reasonable expectation of privacy test in Katz).
For attempts to articulate what the true emerging standard of reason-
able privacy expectations is after the recent open skies cases, see Wilkins,
Defining the Reasonable Expectation of Privacy: An Emerging TripartiteAnalysis,
40 VAND. L. REV. 1077, 1128 (1987) (suggesting that after Oliver, Ciraolo,
and Dow, it appears that the Court undertakes a tripartite analysis in apply-
ing Katz, looking to: (1) the place or location where official surveillance
occurs; (2) the nature and degree of intrusiveness of the surveillance itself;
and (3) the object or goal of the surveillance); Note, Floridav. Riley: The
Emerging Standardfor Aerial Surveillance of the Curtilage, 43 VAND. L. REv 275
(1990).
Remote sensing technology obviously could be used for searches of
open fields, so the privacy interests protected in that sphere is something
with which the development of customary international law must grapple.
The U.S. Supreme Court's pronouncements can serve as a guide for that
development.
260. While the precise meaning of reasonable expectation of privacy is
subject to debate, see supra note 259, the concept could still be a useful one
in addressing the ever-increasing intrusiveness of remote sensing technol-
ogy. Extremely high resolution satellites that can peer into windows pres-
ent privacy problems that the concept of reasonable expectation of privacy
addresses well. In the argument in Dow Chemical Co. v. United States,
476 U.S. 227 (1986), the government recognized this, as it conceded that
surveillance of private property without a warrant using highly sophisti-
cated surveillance equipment not generally available to the public might
be constitutionally proscribed. Id. at 237; see also S. SALTZBURG, AMERI-
CAN CRIMINAL PROCEDURE: CASES AND COMMENTARY 322 (3d ed. 1988).
While a warrant requirement would be problematic in the interna-
tional context, the reasonable expectation of privacy standard could be
useful in the development of the law on remote sensing, because at the
very least it recognizes an important legal issue posed by the technology.
261. See Frieden, supra note 238, at 172-73. The need to adapt privacy
protections to accomodate technological advances was recognized by Jus-
tice Brandeis in his famous dissent in Olmstead v. United States, 277 U.S.
438 (1928): "Mime works changes, brings into existence new conditions
and purposes. Therefore a principle to be vital must be capable of wider
application than the mischief which gave it birth .... Discovery and inven-
tion have made it possible ... to obtain disclosure in court of what is
whispered in the closet." Id. at 472-73 (Brandeis then proceeded to apply
sonal privacy concern relative to these satellites and require

that remote sensing be carried out in a manner that respects
the right to privacy of individuals.
A final concern regarding the Principles and the pro-
posed mediasat is exclusivity of use. The media has argued
that the system's potential usefulness will be lost if the media
is not given at least some period of exclusive right to use of
the information that it generates. 26 2 The media's exclusivity
proposal would potentially conflict with the requirement of
timely nondiscriminatory dissemination of primary and
processed data under principle XII.
It is the very nature of the news media to disseminate
information through its broadcasts in a nondiscriminatory
manner. Media use of remote sensing images increases ac-
cess of all parties, because the media is in the business of
generating and spreading information. Greater media use of
remote sensing would help embed principle XII as an ac-
cepted norm of customary international law.
C. Internationaland Domestic Legal Response to Media Use

National security concerns, however, call for some regu-
lation of media use of remote sensing technology.
1. InternationalRegulation
The international legal regime has nothing specific to
say about media use of remote sensing. Principle I of the
U.N. Resolution does not bring media use under the scope
of the Principles. 2 68 The only media use that would fall
under the Principles would be the publication of pictures
that would improve natural resource management, land use,
and the protection of the environment. This might include
the documentation of the nuclear accident at Chernobyl; this
is the type of environmental disaster that was at least periph-
erally on the minds of the drafters of the Principles.2 6 4
privacy protections to preclude warranfless use of a new surveillance tech-

nology).
262. See Reimer, supra note 251, at 345.
263. Principle I, in Principles, supra note 1.
264. See Frieden, supra note 238, at 129; but see Sloup, supra note 68, at
388 (only observation of short-term conflict, such as the U.S. invasion of
Grenada, which does not cause major impact on the environment, is
If a mediasat is developed, global audiences will be

shown real-time images of military encampments, ship move-
ments, and combat zones. Perceptions of eroding national
sovereignty and control over information flows poses a chal-
lenge to future development of the international law of re-
mote sensing: it must balance the right to information with
national security concerns.2 65 The Principles already illus-
trate a way in which to do this by balancing sovereign inter-
ests to information about resources 266
with the rights of other
interested parties in obtaining it.
2. U.S. Domestic Regulation

As the Principles do not specifically address the issues
posed by media use, the United States and some other gov-
ernments have used domestic regulation, including the
LANDSAT Act and the NOAA Regulations, to address the
national security concerns that these governments may have
over the prospect of potentially sensitive information being
broadcast over the airwaves. The LANDSAT Act generally
provides that a license to operate remote sensing can only be
given if the Secretary of Commerce determines beforehand
that the operator will comply with the national security con-
cerns of the United States.2 67 The NOAA Regulations go
even further, stating that one of their basic purposes is the
preservation and promotion of the national security of the
268
United States.
The NOAA Regulations make the application review-
able by the State and Defense Departments, as well as the
NOAA Administrator; each of these bodies can reject the ap-
plication. The NOAA Administrator is given the power to
outside the scope of the definition provided by principle I (a)). This is an

excessively broad reading of the definition of remote sensing in the Princi-
ples, not in line with the actual text and COPUOS intent. See supra notes
68, 160-65 and accompanying text.
265. DalBallo & Martinez, supra note 246, at 285-86.
266. See supra Part III.B.2. While the Principles recognize the general
right to engage in remote sensing activity and to nondiscriminatory dis-
semination, principle IV requires that remote sensing activity not be con-
ducted "in a manner detrimental to the legitimate rights and interests of
the sensed state." Principle IV, in Principles, supra note 1.
267. 15 U.S.C. § 4241(b).
268. 15 C.F.R. § 960.1(a) (1990).
1991] LIW OF REMOTE SENSING
reject the application if she feels the applicant will compro-

mise national security if licensed. 2 69 The State and Defense
Departments have almost unbridled discretion to impose re-
strictions on a remote sensing licensee, in addition to the
power to reject a license. 27 0 The NOAA Administrator also
has the power to seize any object, record, or report from a
private satellite operator if she has probable cause to believe
that such an item was used in violation of the LANDSAT Act
or NOAA Regulations. 27 ' This power has had somewhat of a
chilling effect on the media, as it has discouraged private in-
27 2
vestment in high-resolution satellites.
This chilling effect on news-gathering efforts illustrates
the constitutionally suspect nature of the Regulation. The
first amendment recognizes the right of a free press to en-
gage in news-gathering activities. 2 7" The administrative li-
censing scheme in effect constitutes a prior restraint on the
news media's remote sensing activities and subsequent pub-
lishing or broadcasting of resulting data. 2 74 While regula-
tion of broadcast licenses can be justified under a scarcity
rationale, 27 5 it cannot justify the NOAA Regulations. The
269. Id No one has thus far filed an application for a remote sensing
license under the Regulations, so the "national security" criterion has
never been tested. Meredith, supra note 188, at 376.
270. Aamoth, Eyes in the Sky, HIGH TECH. Bus., July 1988, at 6.
271. 15 C.F.R. § 960.16 (1990).
272. Aamoth, supra note 270, at 6. Radio-TV News Directors Associa-
tion (RTDNA) President David Bartlett said that regulations posed by the
U.S. and other governments constituted the chief barrier to the establish-
ment of an independent satellite system for the news media. Communica-
tions Daily, August 24, 1990, at 2 (LEXIS, Nexis library, Currnt file).
273. Branzburg v. Hayes, 408 U.S. 665, 681 (1972).
274. Historically, administrative licensing schemes have been viewed as
highly inimical to freedom of the press. See Blasi, Toward a Theorj of Prior
Restraint The CentralLink age, 66 MINN. L. REv. 11 (1981); Barnett, The Puz-
zie of Pfior Restraint, 29 STAN. L. REv. 539, 544 (1977).
"To subject the press to the restrictive power of a licenser... is to
subject all freedom of sentiment to the prejudices of one man .... " Pitts-
burgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S.
376, 389-90 (1973). See also Jefflies, Rethinking PriorRestraint,92 YAu LJ.
409, 421 (1983) ("to]f the various things referred to as a prior restraint, a
system of administrative predearance is the most plainly objectionable").
275. See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388-90
(1969); Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412
U.S. 94, 101-02 (1973). For a discussion of the use of the scarcity ration-
ale tojustify broadcast regulations, see I. DE SotA POOL, TECHNOLOGIES OF
Regulation allows for absolute subjective discretion by the

Executive Branch in denying licenses, thus imposing a seem-
ingly unconstitutional prior restraint on media activity.2 76
The Act and the Regulation merely limit the govern-
ment's discretion regarding the denial of licenses to a broad
national security review. 277 National security concerns,
under particular circumstances, can provide a valid rationale
for upholding the constitutionality of a prior restraint.2 78
However, the use of the phrase "national security" leaves far
too much discretion in a system of prior restraint through an
administrative licensing scheme. 279 As a result, the regula-
FREEDOM 9-10, 234-40 (1983); Spitzer, The Constitutionality of Licensing

Broadcasters, 64 N.Y.U. L. REv. 990, 1007-20 (1989).
276. See Near v. Minnesota, 283 U.S. 697, 713-14, 716 (1931) ("'[tlhe
liberty of the press is indeed essential to the nature of a free state; but this
consists in laying no previous restraints upon publication' " [citation omit-
ted]); Pittsburgh Press, 413 U.S. at 389-90 ("[t]he special vice of prior re-
straint is that communication will be suppressed, either directly or by in-
ducing excessive caution in the speaker, before an adequate determination
that it is unprotected by the First Amendment"); New York Times v.
United States, 403 U.S. 713, 733 (1971) (White, J. concurring) ("[p]rior
restraints require an unusually heavy justification under the First Amend-
ment").
277. 15 U.S.C. § 4241(b); 15 C.F.R. § 960.1(a).
278. Near v. Minnesota, 283 U.S. at 716 ("[n]o one would question but
that a government might prevent actual obstruction to its recruiting ser-
vice or the publication of sailing dates of transports or the number and
location of troops."); United States v. The Progressive Inc., 467 F.Supp
990 (W.D. Wisc. 1979) (enjoining publication of hydrogen bomb plans).
This national security based exception to the unconstitutionality of prior
restraints applies to injunctions obtained to prevent publication, not to
administrative schemes using a national security rationale to deny the me-
dia a license to explore and broadcast particular news information.
279. See New York Times v. United States, 403 U.S. at 719 (Black, J.
concurring) ("[t]he word 'security' is a broad, vague generality whose con-
tours should not be invoked to abrogate the fundamental law embodied in
the First Amendment"). Using the national security exception to the pre-
sumption against prior restraints in the context of an administrative re-
straint can never be justified. One commentator explained why:
Administrative authority to impose restraints on grounds of na-
tional security is especially harmful to free speech for two rea-
sons. First, the definition of national security is likely to fluctuate
with the contemporary political climate. Second, the incentive of
nonjudicial regulators, as for any censor, is to use their authority
to suppress. Given the obvious political sensitivity of much infor-
mation that a government might choose to consider secret, the
tions do not provide sufficiently narrow, objective, and defi-

nite standards guiding the licensing authority to meet the re-
quirements of the First Amendment. 280
Aside from these constitutional difficulties the legisla-
tion provides only minimal protection against a possible vio-
lation of U.S. national interests. The legislation would be
difficult to apply to any entity other than EOSAT, as U.S.
jurisdiction over foreign-operated satellites is limited by in-
ternational law principles.2 81 Accordingly, the government
has stated that the rules will not apply to the French remote
sensing satellite or SPOT Image, the organization marketing
its data. 28 2 Foreign satellite operators are merely required
to obtain a U.S. license, thereby subjecting themselves to re-
view proceedings only if they establish substantial connec-
tions with the United States or derive substantial benefit
from U.S. laws supporting their international remote sensing
operation. 283
The robust tradition of First Amendment protections
discourages the restriction of information dissemination
upon the advent of new technologies.28 4 Indeed, a special
need for a forum with a long tradition of independence from the

political branches is overriding.
Redish, The ProperRole of the PriorRestraint Doctrine in FirstAmendment Theory,
70 VA. L. REv. 53, 86 (1984). The government has an incentive to deny
the media access through its licensing of remote sensing satellites, because
it considers potential information politically sensitive. Since the govern-
ment can only speculate about the precise information the media would
publish or broadcast, using a national security criterion would be particu-
larly subjective and arbitrary in this instance.
280. Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 (1969).
281. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNrrED
STATES § 402(3) (1986) (the U.S. can only apply its legislation if it is rea-
sonable to do so, as determined by a litany of factors cited in the Restate-
ment). For a discussion of this argument, see Frieden, supra note 238, at
180-85.
282. Foley, supra note 234, at 20; Meredith, supra note 188, at 375.
283. 15 C.F.R. § 960.2(c).
284. "The onus is on us to determine whether free societies in the 21st
century will conduct electronic communications under the conditions of
freedom established for the domain of print through centuries of struggle
or whether that great achievement will become lost in a confusion about
new technologies." I. DE SOLA POOL, supra note 275, at 10.
justification is required to uphold such a restriction. 28 5 Do-

mestic regulation aimed at constricting the flow of remote
sensing information is particularly problematic due to the in-
ternational nature of such technology. No single govern-
ment could assert control if, for example, a satellite owned
by a Dutch corporation but built in Japan with American
parts were launched by a Chinese rocket booster and flown
under a Panamanian flag of convenience, ultimately trans-
mitting its data to Canada and selling its images to networks
28 6
in five continents.
Just as the developing nations that called for a prior con-
sent regime of remote sensing came to realize that such limi-
tations were technologically impracticable and ultimately not
beneficial to their needs, governments must realize that strict
regulation of the international media is counterproductive.
Nations should be discouraged, in the interest of free and
equal dissemination of information, from unilaterally impos-
ing prior restraints.
One solution would be to adapt the Principles to deal
with the unique problems posed by new media technologies;
the Principles should include a method for balancing com-
peting interests within the legal system. The jurisprudence
of the First Amendment has much to offer for the develop-
ment of new international standards for media use, and
would be a good place to start.
VII. PROSPECTIVE DEVELOPMENTS: INTERNATIONALIZATION

OF REMOTE SENSING AND EXTENSION OF
PRINCIPLES
A. The Prospectsfor InternationalizingRemote Sensing Activities

The most comprehensive way to address the deficiencies
in the legal regime of remote sensing would be to obviate the
need for it. The need for the Principles and the other space
treaties was created by the disparity in capabilities between
28 7
the space-faring countries and the developing countries.
The goal of these documents was to create a regime that
285. See supra note 275 regarding the scarcity justification for the licens-
ing of broadcast media.
286. Zimmerman, supra note 125, at 47.
287. See G. REIJNEN, supra note 29, at 75.
would protect the right to conduct remote sensing activity in

a manner that would respect sovereignty and benefit all par-
ties.2 88 All the current deficiencies in the legal regime would
be cured by having a single international agency operating
all remote sensing satellites and disseminating information
openly and in a nondiscriminatory manner.
The idea of creating an international body to conduct
remote sensing and use the data to protect the environment
and monitor compliance with arms agreements is not with-
out precedent. President Giscard d'Estang of France pro-
posed the establishment of an International Satellite Moni-
toring Agency (ISMA) in a speech before the General As-
sembly in 1978.289 As a result of the French initiative, the
Department of Disarmament Affairs of the United Nations
conducted a technical and legal feasibility study. 2 90 The
study proposed the development of an international satellite
capability in three phases, initially drawing upon existing na-
tional satellite systems; developing ISMA's own ground sta-
tions; and finally developing space segments for its own op-
erational satellites. 2 9' The study concluded that such a plan
was both technically and legally feasible and that it would
contribute positively to global crisis management and arms
29 2
control.
There have been two more limited internationalization
proposals. Canada has put forward a proposal for a PAX-
SAT satellite system to verify multilateral arms control
agreements. 298 These satellites would draw on technology
developed for the Canadian RADARSAT remote sensing de-
vice. The PAXSAT is to have a resolution of one meter,
which should be feasible by the late 1990s. This resolution
2 94
would be high enough to detect even tank movements.
Under this proposal, all parties to a given agreement would
288. Christol, supra note 48, at 25, 28.

289. 10th Special Session U.N. GAOR 39, Plenary Meetings of the Ad
Hoc Committee of the 10th Special Session, 3rd Plenary Meeting, Agenda
Item 8 (May 25, 1978) at 39. See also Swahn, supra note 136, at 232.
290. ISMA, supra note 26.
291. Id. at 42.
292. See id at 14.
293. Broad, supra note 126, at Al, col. 1.
294. Florini, supra note 120, at 115.
have access to data. 295

Sweden has also become interested in developing an in-
ternational surveillance satellite. Its Ministry on Foreign Af-
fairs has undertaken a study of the 296 possiblities and implica-
tions of developing such a satellite.
These proposals are for military type surveillance, but
could later be extended to all types of remote sensing. Polit-
ical considerations, however, are likely to prevent the imple-
mentation of such proposals. The original U.N. proposal
was rejected by the superpowers in a vote in December
1982.297 The United States based its objection on the
grounds that an international agency would fail to pay ap-
propriate attention to national security concerns when evalu-
ating information. 29 8 At the time of that vote, the superpow-
ers had a monopoly on remote sensing capabilities and were
understandably reluctant to forfeit that monopoly.
Receptivity to an ISMA may have warmed somewhat.
The superpowers no longer enjoy their monopoly on remote
sensing; furthermore, and will lose their monopoly over mili-
tary surveillance satellites. 299 The Soviet Union appears to
be moving towards acceptance of the verification role of the
United Nations.300 In addition, the recent commitment of
the superpowers to mutual open skies301 indicates that they
could be more receptive to an international agency.
Yet, nations will maintain their unwillingness to relin-
quish complete control of the technology. At the very least,
the rules for dissemination of information from an ISMA
need to be clearly established. Some other nations probably
will become less willing to support an ISMA as commerciali-
zation of technology and sales increases, and as the number
of nations entering into the lucrative and prestige-boosting
remote sensing markets proliferates. Paradoxically, France,
the originator of the proposal, could stand to lose the most
financially if an ISMA with its own remote sensing capabili-
295. Id.
296. Swahn, supra note 136, at 233.
297. Florini, supra note 120, at 114-15.
298. Id.
300. Swahn, supra note 136, at 232.
301. See id.
ties were to provide much of the world's remote sensing

data.30 2 Political stumbling blocks will probably keep an
ISMA with powerful remote sensing capabilities from be-
coming a reality in the near future.
B. A ProposalFor a New Treaty Governing Remote
Sensing Activity
The final part of this Note proposes the direction that an
international legal regime ought to take in light of the devel-
opments that have been identified, including the fact that re-
mote sensing will remain in national hands.
1. Value of Converting the Principles into a Treaty

Historically, the adoption of governing principles in
space law has led to the creation of a more binding legal in-
strument.3 0 3 The non-binding nature of a U.N. Resolution,
even one promulgated through the consensus process of
COPUOS, indicates that Resolution 41/65 is designed to
serve as the basis for a future international treaty or conven-
tion.
Several of those who participated in their passage have
commented that the Principles could serve as a political and
legal stimulus for further codification. 3 °4 As a next step, the
General Assembly could authorize the Legal Subcommittee
of COPUOS to convert the Principles into treaty form; this
draft, in turn, would be approved by COPUOS and the Gen-
eral Assembly, and later submitted to states for ratifica-
05
tion.3
Given the commercialization and increased resolution of
remote sensing techniques, the time is particularly ripe for
such an instrument 3 0° 6 There is evidence that not everyone
302. See id
303. See supra notes 98-100 and accompanying text.
304. See, e.g., Hampe, supra note 209, at 320; Gobriel,Juridical Probkms of
Remote Sensing, PRoc. 30-m COLLOqUiuM L. OUTER SPACE 280 (1987). Rep-
resentatives have urged that remote sensing be kept as an agenda item so
that a more detailed and binding legal regime could be developed. Chris-
tol, supra note 48, at 36.
305. Myers, supra note 30, at 364. The Indian representative has urged
just such authorization. Christol, supra note 48, at 36.
306. See Note, Remote Sensing. TerrestrialLawsfor CelestialActivities, 8 B.U.
INV'L L.J. 157, 182-83 (1990) (arguing need for treaty language since ex-
is complying with the principles of equal access and nondis-

crimination.30 7 This non-compliance underscores the need
for a binding treaty rather than a resolution. More specific
obligations must be formulated in order 308
to ensure reciproc-
ity and a higher degree of compliance.
Another advantage of having a treaty is that, at least in
the United States, treaties become incorporated into the do-
mestic law if ratified by the Senate, and thus bind private par-
ties.309 As the scope of the Principles themselves needs to be
reevaluated, the simple reformulation of principles without
moving forward to the next level of legal instrument would
rob the established legal regime on remote sensing of a good
deal of credibility and existing force.
2. Proposed Treaty Governing Remote Sensing and Remote

Sensing Activities
A treaty governing remote sensing activity should reflect
the existing Principles, as they represent the carefully
orchestrated compromise and development resulting from
fifteen years of COPUOS debate. The main actors in remote
sensing probably would not ratify a treaty that did not incor-
porate a major portion of the Principles.
The most important compromise embodied in the Prin-
ciples is the system of open sensing and dissemination,
which is supported by international cooperation and mutual
assistance. The following treaty proposal does not alter this
principle. The technological and political trends identified
earlier have created the need for certain changes; however,
any new provisions must not unravel the consensus which
developed or doom prospects for ratification.
Where the treaty proposal is identical to the Principles,
it simply states the number of the relevant principle. After
each new provision, there is an explanation of the change,
along with a discussion of the rationale for the change. (The
Principles are set out in the Appendix).
isting international agreement does not take into account emerging com-
mercialization of remote sensing systems).
308. Shachter, Prospectsfor a Regime in Outer Space and InternationalOrgani-
zation, in LAW AND POLMCS IN SPACE 98 (M. Cohen ed. 1963).
309. U.S. CONST. art. VI, cl. 2.
AR-ricLE I: SCOPE OF TREATY

(a) The term "remote sensing" means the sensing of
the earth's surface or any object located on the earth's sur-
face from space by using the electromagnetic waves emitted,
reflected, or diffracted by the sensed object, for any and all
purposes including, but not limited to, the following: Land
use, natural resource management, environmental protec-
tion, media use, arms control agreement verification, and
monitoring for purposes of legitimate national security inter-
est. Sensing by satellites that are designated solely for mili-
tary surveillance, and that provide classified information with
a ground resolution of one meter or finer, is specifically ex-
cluded from the scope of this definition.
Explanation: This definition extends the scope of the
treaty beyond the environmental uses described in the Prin-
ciples. This broader definition takes into account the
blurred civilian/military distinction resulting from the use of
commercial remote sensing satellites with higher resolution,
and the necessity of extending nondiscrimination and equal
access principles to all uses. In order to ensure ratification,
and in recognition of the legality of espionage under interna-
tional law, the treaty excludes from its scope the dissemina-
tion of data obtained from traditionally classified sources.
(b), (c), & (d) The delineation between, and definitions
of, primary, processed, and analyzed data remain un-
changed.
(e) The term "remote sensing activities" means the op-
eration of remote sensing space systems and primary data
collection and storage stations, as well as activities in
processing, interpreting, and disseminating the processed
and analyzed data.
Explanation: This definition will ensure that the applica-
tion of the nondiscrimination and other provisions extends
to analyzed data. This definition is included because many
developing countries lack sophisticated analysis capabilities.
ARTICLES II & III

Principles II and III are retained, stating explicitly that
remote sensing activities shall be carried out for the benefit
and in the interests of all, and explicitly subjecting all such
activities to international law.
ARTICLE IV: PROTECTION OF INTERESTS
The first sentence of the Principles, establishing that all

activities are to be carried out in accordance with the princi-
ples of the Outer Space Treaty (that the use of outer space
be for the benefit and in the interests of all countries) is re-
tained. The remainder will read as follows:
These activities shall be conducted, whether by govern-
mental or non-governmental entities, with respect for the
full and permanent sovereignty of all states and peoples over
their own wealth and natural resources. Further, they shall
be conducted with due regard to the rights and interests,
under international law, of other states and entities under
the jurisdiction of those states. Such activities shall not be
conducted in a manner detrimental to the legitimate national
security interests or basic rights of sensed states insofar as
those interests and rights do not conflict with the interests of
the international community in furthering global peace, de-
velopment, and the goals of other international agreements.
Such activities shall not be conducted in a manner detrimen-
tal to the legitimate reasonable privacy expectations of any
individual.
Explanation: Article IV attempts to protect the legitimate
interests of sovereign states while balancing those interests
with the needs of the international community. It also ex-
tends the requirements explicitly to private operators, which
is important in light of the commercialization trend. Article
IV has a sharper focus than principle IV, as it specifically re-
quires parties engaged in remote sensing to respect national
security interests and privacy interests. This is particularly
important in light of media use of sensing. This article is
intended to reduce the perceived need for individual states
to enact forms of prior restraints on media use, because it
subjects the media to a broad code of conduct.
ARTICLE V: INTERNATIONAL COOPERATION
State governments, private companies, and any other

non-governmental entities carrying out remote sensing activ-
ities shall promote international cooperation in this area. To
this end, they shall make opportunities for participation
available to other states and entities within those states.
Such participation shall be based in each case on equitable

and mutually acceptable terms.
Explanation: This article extends the international coop-
eration obligation to private entities as well as official state
entities. In this way, private companies that are multina-
tional in nature have been given an affirmative obligation to
encourage cooperation.
ARTICLE VI: MuTUAL ASSISTANCE

State governments, private entities, and other non-gov-
ernmental entities engaged in remote sensing activities are
encouraged to provide for the establishment and operation
of data collecting and storage stations, and processing and
interpretation facilities, through agreements or other ar-
rangements, whether bilateral or regional. They shall also
make technical assistance available to interested states and
other foreign entities, on mutually agreed terms.
Explanation: This article combines provisions of princi-
ples VI and VII and applies them to private entities. It also
removes the timid language in principle VI that called for
agreements "wherever feasible." That language created a
loophole in the obligation of entities with remote sensing ca-
pabilities to provide mutual assistance.
ARTIcLE VII: UNITED NATONS ROLE IN INTERNATIONAL

COOPERATION
Principle VIII, recognizing the U.N. role, is retained.
ARTICLE VIII: INFORMING THE SECRETARY-GENERAL

The obligation under principle IX that a state notify the
Secretary-General of the United Nations of remote sensing
activities is retained. Article VIII will add the following:
A state is responsible for notifying the Secretary-Gen-
eral of all the remote sensing activities of entities that fall
under its jurisdiction, as defined by Article IV of the Regis-
tration Convention and Article XI of the Outer Space Treaty.
This information shall be made available to any state at its
request and particularly to any developing country that is af-
fected by the sensing program at its request.
Explanation: This article makes it dearer than principle
IX that ground activities related to remote sensing by any

entity within a state's jurisdiction are to be made public, by
requiring a report to the Secretary-General. Merely ex-
tending the Registration Convention and Outer Space
Treaty, as Principle IX does, only ensures that the space por-
tion of the activity will be reported.
This Article also removes the requirement that a state
make other relevant information available only when feasible
and practicable, as that clause can only be used to allow enti-
ties engaging in sensing to withold information about their
activities.
This Article should not be construed, however, as re-
quiring the entity to provide the Secretary-General with the
results of its sensing activities, for that would effectively turn
the Secretary-General into an ISMA. Rather, the purpose of
Article VIII is to ensure that all concerned parties know what
remote sensing activity has been conducted.
ARTICLE X: EMERGENCY ENVIRONMENTAL INFORMATION
This article will combine principles X and XI, requiring

states participating in remote sensing activities to disclose in-
formation regarding natural disasters and phenomena harm-
ful to the earth's environment to concerned states as
promptly as possible. The only change from the Principles is
that the requirement to disclose information will fall on any
entities participating in remote sensing, not just states.
ARTICLE X: NONDISCRIMINATION AND THE RIGHTS OF THE

SENSED STATE
This article should basically consist of principle XII, ac-

knowledging the nondiscriminatory and equal access princi-
ples. In order to clarify the obligation of private entities,
however, the first clause should be changed to read as fol-
lows: "As soon as the primary data and the processed data
concerning the territory under its jurisdiction are produced
by the entity engaging in the remote sensing activity..."
Also, under this article, the sensed state shall have ac-
cess to all analyzed information concerning the territory
under its jurisdiction, in the possession of any entity partici-
pating in remote sensing activities on the same basis and
terms.
Explanation: The slight deviations from principle XII are

designed to specify that privately-produced data are dearly
subject to the artide.3 1 0 The sensed state is given equal ac-
cess to all analyzed data concerning its territory, rather than
the more easily circumvented "available" analyzed data
called for by the Principles. This tightens up language that
could be used by ground stations, in particular, to withhold
data on the basis that it is not yet "available."
ARTicLE XI: CONSULTATION 'wiH SENSED STATE
This should restate principle XIII, but should apply to

any entity carrying out remote sensing, not just any state car-
rying out such activity.
ARTICLE XII: INTERNATIONAL RESPONSIBILITY
States operating remote sensing satellites shall bear in-

ternational responsibility for their remote sensing activities
and the remote sensing activities of any governmental, pri-
vate, or other non-governmental entity under theirjurisdic-
tion, as provided by the Outer Space Treaty and Liability
Convention, as well as by international organizations to
which such states are party. This responsibility includes the
duty to ensure that all remote sensing activities are carried
out according to principles of international law and the other
articles of this treaty.
Explanation: This article clarifies the international re-
310. One potential consequence of the vigor with which the draft treaty
attempts to apply the principle of nondiscrimination to the activity of com-
mercial entities is that it could make remote sensing activity less profitable.
Quite frankly, the global ramifications of this technology, as identified in
this Note, are such that this would not be a particularly bad result. Ideally,
all such technology would be placed in international control for the bene-
fit of humankind. In the absence of that ideal situation, the international
law should attempt to create incentives for the owners of the technology to
foster the nondiscrimination principle. If the result is that municipal gov-
ernment should participate with private entities on a greater scale to en-
sure that remote sensing activity continues to develop while the principle
is adhered to, so be it.
Since generating profit is more of a core function of private enter-
prises than it is of governments, creating a system in which commercial
entities are responsive to a government directly concerned with its inter-
national obligations is desirable.
sponsibility of a state for all the remote sensing activities of

all entities within the scope of its jurisdiction, not just the
space-based activities recognized by the Outer Space treaty.
This will ensure liability for violations of the dissemination
requirements asserted in the treaty.
ARTICLE XIII: DISPUTE RESOLUTION

There shall be established a specific body for resolving
disputes arising out of this treaty, under the auspicies of the
U.N. Any dispute resulting from alleged violations of the
treaty shall be resolved through the established procedures
for the peaceful settlement of disputes. Parties are en-
couraged to bring such disputes before the established tribu-
nal.
VIII. CONCLUSION
An international regime of remote sensing must balance
the principle of nondiscriminatory access to the product of
remote sensing technology and the principle of respect for
sovereign national interests. This was the consensus devel-
oped in the articulation of the Principles by the U.N.
COPUOS.
The balance has been put to a test by technological and
political developments, the blurred civilian/military distinc-
tion, the commercialization of remote sensing activities, and
the use of the technology by the international media. Future
manifestations of the international law governing remote
sensing activities should accommodate these principles in
light of the trends identified in this Note.
Legal instruments should keep up with political and
technological change. The treaty proposed in Part VII of
this Note is an attempt to address those changes, and the
problems those changes create, while building on the legal
framework already in place. It could represent the next step
in the development of an international legal regime for re-
mote sensing.
1991] _1 W OF REMOTE SENSING
APPENDIX
PRINCIPLES RELATING TO REMOTE SENSING OF THE
EARTH FROM SPACE
Principle I
For the purposes of these principles with respect to re-
mote sensing activities:
(a) The term "remote sensing" means the sensing of
the Earth's surface from space by making use of the proper-
ties of electromagnetic waves emitted, reflected or diffracted
by the sensed objects, for the purpose of improving natural
resources management, land use and the protection of the
environment;
(b) The term "primary data" means those raw data that
are acquired by remote sensors borne by a space object and
that are transmitted or delivered to the ground from space
by telemetry in the form of electromagnetic signals, by pho-
tographic film, magnetic tape or any other means;
(c) The term "processed data" means the products re-
sulting from the processing of the primary data, needed in
order to make such data usable;
(d) The term "analyzed information" means the infor-
mation resulting from the interpretation of processed data,
inputs of data and knowledge from other sources;
(e) The term "remote sensing activities" means the op-
eration of remote sensing space systems, primary data collec-
don and storage stations, and activities in processing, inter-
preting, and disseminating the processed data.
Principle II
Remote sensing activities shall be carried out for the
benefit and in the interests of all countries, irrespective of
their degree of economic, social or scientific and technologi-
cal development, and taking into particular consideration the
needs of developing nations.
Principle III
Remote sensing activities shall be conducted in accord-
ance with international law, including the Charter of the
United Nations, the Treaty on Principles Governing the Ac-
tiviies of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies, and the rel-
evant instruments of the International Telecommunication
Union.
Principle IV
Remote sensing activities shall be conducted in accord-
ance with the principles contained in article I of the Treaty
on Principles Governing the Activities of States in the Explo-
ration and Use of Outer Space, including the Moon and
Other Celestial Bodies, which, in particular provides that the
exploration and use of outer space shall be carried out for
the benefit and in the interests of all countries, irrespective
of their degree of economic or scientific development, and
stipulates the principle of freedom of exploration and use of
outer space on a basis of equality. These activities shall be
conducted on the basis of respect for the principle of full and
permanent sovereignty of all States and peoples over their
own wealth and natural resources, with due regard to the
rights and interests, in accordance with international law, of
other States and entities under their jurisdiction. Such activ-
ities shall not be conducted in a manner detrimental to the
legitimate rights and interests of the sensed State.
Principle V
States carrying out remote sensing activities shall pro-

mote 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.
Principle VI
In order to maximize the availability of benefits from re-

mote sensing activities, States are encouraged through
agreements or other arrangements to provide for the estab-
lishment and operation of data collecting and storage sta-
tions and processing and interpretation facilities, in particu-
lar within the framework of regional agreements or arrange-
ments wherever feasible.
Principle VII
States participating in remote sensing activities shall
make available technical assistance to other interested States
on mutually agreed terms.
Principle VIII
The United Nations and the relevant agencies within the
United Nations system shall promote international coopera-
tion, including technical assistance and coordination in the
area of remote sensing.
Principle IX
In accordance with article IV of the Convention on Re-
gistration of Objects Launched into Outer Space and article
XI of the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies, a State carrying out a
programme of remote sensing shall inform the Secretary-
General of the United Nations. It shall, moreover, make
available any other relevant information to the greatest ex-
tent feasible and practicable to any other State, particularly
any developing country that is affected by the programme, at
its request.
Principle X
Remote sensing shall promote the protection of the
Earth's natural environment.
To this end, States participating in remote sensing activ-
ities that have identified information in their possession that
is capable of averting any phenomenon harmful to the
Earth's natural environment shall disclose such information
to States concerned.
Principle XI
Remote sensing shall promote the protection of man-
kind from natural disasters. To this end, States participating
in remote sensing activities that have identified processed
data and analyzed information in their possession that may
be useful to States affected by natural disasters, or likely to
be affected by impending natural disasters, shall transmit
such data and information to States concerned as promptly

as possible.
Principle XII
As soon as the primary data and the processed data con-
cerning the territory under its jurisdiction are produced, the
sensed States shall have access to them on a nondiscrimina-
tory basis and on reasonable cost terms. The sensed State
shall also have access to the available analysed information
concerning the territory under its jurisdiction in the posses-
sion of any State participating in remote sensing activities on
the same basis and terms, taking particularly into account the
needs and interests of the developing countries.
Principle XIII
To promote and intensify international cooperation, es-
pecially with regard to the needs of developing countries, a
State carrying out remote sensing of the Earth from outer
space shall, upon request, enter into consultations with a
State whose territory is sensed in order to make available op-
portunities for participation and enhance the mutual benefits
to be derived therefrom.
Principle XIV
In compliance with article VI of the Treaty on Principles
Governing the Activities of States in the Exploration and Use
of Outer Space, including the Moon and Other Celestial
Bodies, States operating remote sensing satellites shall bear
international responsibility for their activities and assure that
such activities are conducted in accordance with these princi-
ples and the norms of international law, irrespective of
whether such activities are carried out by governmental or
non-governmental entities or through international organi-
zations to which such States are parties. This principle is
without prejudice to the applicability of the norms of inter-
national law on State responsibility for remote sensing activi-
ties.
Principle XV
Any dispute resulting from the application of these prin-
1991] LAW OF REMOTE SENSING 669
ciples shall be resolved through the established procedures

for the peaceful settlement of disputes.

23 NYUJIntl LPol 599

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

23 NYUJIntl LPol 599

Uploaded by

Copyright:

Available Formats

DATE DOWNLOADED: Tue Jul 6 01:55:22 2021

SOURCE: Content Downloaded from HeinOnline

Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

A. How Remote Sensing Works

1. Remote sensing is defined in the Principles Relating to Remote

ing"; active remote sensing involves "the bouncing of energy

B. How Remote Sensing is Used

3. N. GOLDMAN, AMERICAN SPACE LAW 9 (1988).

tween the U.S. and the Soviet Union. I

C. The Law Governing Remote Sensing

the international law of remote sensing.

D. How the Remote Sensing Laws Should Be Changed

Part V considers the growth of the commercialization of

II. BACKGROUND SPACE LAW

Any specific legal fi-amework for remote sensing activi-

17. Principles III & lY, in Principles, supra note 1.

COPUOS and its twin subcommittees, legal and scientific/

A. The Outer Space Treaty of 1967

18. P. WADEGAONKAR, THE ORBIT OF SPACE LAW 3 (1984); See Jasentu-

certain basic principles of space law first articulated by

right to conduct espionage.3 0 Remote sensing as defined by

B. Other Relevant Treaties of Space Law

The Moon Treaty of 1979 illustrated the breakdown of

III. THE PRINCIPLES RELATING TO REMOTE SENSING:

A. The History: Sovereignty 46 and the Dispute over PriorConsent

on the extent to which sovereignty principles should give a

2. The United States and "Open Skies"

its observations are protected by the Outer Space Treaty. s2

3. The Movement to Final Compromise

52. Magdel6nat, supra note 50, at 115-16.

sensed state prior to the dissemination of primary remote

framers of the Principles tried to protect sovereign interests

B. Content of the Remote Sensing Principles

64. See principle XII, in Principles, supra note 1.

dium. 70 "Processed data" is defined as primary data that has

sensing activities promote international cooperation by pro-

designed to protect the sensed states from exploitation by

79. See supra text accompanying notes 66-74.

lyzed information concerning the territory under its jurisdic-

that commercial entities will comply with international law8876

C. Legal Effect of the Principles

and open dissemination of remote sensing data, particularly

The Principles are binding only to the extent that their

99. Kopal, supra note 97, at 15.

elaboration in order to deal with the current status of remote

IV. IMPLICATIONS OF IMPROVED COMMERCIAL REMOTE

A. Resolution and Extent of Commercial Remote Sensing

service.' 0 7 The two U.S. LANDSAT satellites collecting data

imaging satellite in 1992 under a joint development pro-

2. Improvements in the Technology: Increased Resolution

ries with a radar-equipped Earth resources satellite that

B. The Blurred Line: Military Uses for Commercial Sensing

ment. 12 7 These images can be used for more classic military

127. M. BENKO, W. DE GRAAFF & G. REIJNEN, supra note 55, at 9.

pilot and crews to the technical level demanded to accom-

134. Krepon, supra note 120, at 98.