RONALD F. STOWEDepartment of State

Washington, DC 20520

While the United States favors an open-dissemination system,many other nations seem to favor a prior-consent system.

Diplomatic and Legal Aspects ofRemote Sensing

INTRODUCTION

WHEN ON July 23, 1972 the UnitedStates launched the first Earth Re­

sources Technology Satellite (ERTS)l the in­ternational community, acting through theUnited Nations, had for over three years beenundertaking studies of the many implicationsof such remote sensing. The pace of thatwork significantly accelerated during 1974,and at the recently completed meeting of theLegal Subcommittee of the United Nations

The United States together with a fewother countries has focussed considerable at­tention in the United Nations on potentialbenefits from an open and cooperative sys­tem for the international community as awhole and for each individual state. Thesesame countries also have outlined in somedetail the potential handicaps and disadvan­tages which would be likely to result fromrestrictive or closed-data-dissemination sys­tems. As ofthis time, it is probably too early to

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IABSTRACT: Initiation of experiments in remote sensing of the earth'snatural environment from outer space has intensified interest in theinternational community to develop additional organizational andlegal guidelines for such activity. Several proposals to require theprior consent ofstates before data about their natural resources canbe disseminated have been put forward. On the other hand, theUnited States in particular has urged that a system ofopen dissemina­tion is far more likely to promote the common good, and that theproposed restrictions could seriously impair the entire remote sens­ing program. States favoring restrictions on dissemination argueprincipally that their own natural resources may be undermined bypublication of information about those resources, and that their na­tional security may be threatened by the revelation of military andeconomic data. Negotiations are continuing in the" United Nationswhere attempts to resolve these differing concerns are the focus ofdebate in the Outer Space Committee and its subdivisions.

Committee on the Peaceful Uses of OuterSpace nearly half of the entire session wasdevoted to remote sensing. Because the firstUnited States experimental ERTS has beensending back data, now joined by its succes­sor called LANDSAT, a number of states havebecome seriously concerned about possibledisadvantages resulting from worldwide dis­tribution of data about their territories. Thisconcern has generated a number of specificproposals for comprehensive internationalregulation of remote sensing from outerspace.

tell what type of system or systems the major­ity of the members of the United Nations willfavor. However, because the outcome ofthese negotiations could have a substantialimpact on the conduct of remote sensing forpublic use, they warrant the attention par­ticularly of those who work in this field.

THE RESTRICTIVE APPROACH: PRIMARYCONCERNS

Brazil and Argentina have jointly proposeda draft treaty which in essence provides that(a) remote sensing of another country's

PHOTOGRAMMETRIC ENGINEERING AND REMOTE SENSING,

Vol. 42, No.2, February 1976, pp. 177-180.177

UNITED STATES POSITION

It is perhaps easier for the United States

178 PHOTOGRAMMETRIC ENGINEERING & REMOTE SENSING, 1976

natural resources may not be undertaken could turn on its sensors on a pass over thatwithout the latter country's prior consent; (b) area, or even a system in which data about adata relating to the natural resources of one geographical region could not be sharedstate cannot be disseminated to any third without the express prior consent of all statesstate, international organization, or private within that region?entity without the express authorization of Regardless of the fact that some of the mostthe state to whom the resources belong, (c) valuable uses of data obtained from remotestates must not utilize any data obtained from sensing satellites can be derived from study­remote sensing of another state's natural re- ing it on a regional or even global basis, con­sources to the detriment of the latter state; (d) siderable sentiment exists for making suchstates are entitled to full and unrestricted ac- data available only to the state whose terri­cess to all data obtained through remote sens- tory it concerns. The primary expressed con­ing oftheir natural resources; and (e) all states cern behind this preference is that indus­have the right to participate fully in and to trially advanced states or private companieshave free access to all information from re- will better be able to interpret the data thanmote sensing of natural resources outside of will the states in whose natural resourcesnational jurisdiction. There is also consider- they are interested, and hence will be able toable language referring to non-interference negotiate for those resources with an unfairwith the exercise of a state's permanent advantage of greater knowledge about a na­sovereignty over its natural resources. tion's resources than the nation itself has.

The Soviet Union and France jointly have Some states simply do not wish to have toproposed a set of governing principles which deal, before they are ready, with the pres­would provide that (a) any sensing state must sures that would be generated by greatertransmit to a sensed state on mutually accept- public knowledge about their resources andable terms information it obtains regarding natural environment. This concern has gonethe natural resources of the latter; (b) that no sufficiently deep to elicit arguments such asstate which obtains, through remote sensing, that sovereignty over natural resources in­information concerning the natural resources cludes complete control over all dissemina­of another state shall make that information tion and use of information relating to thosepublic without the prior consent of the latter resources, regardless of where such dissemi­state; and (c) that remote sensing of earth nation or use may take place.resources shall respect the principle of per- Some states fear that their security wouldmanent sovereignty of states over their be threatened, not so much by the great mili­wealth and resources. tary powers as by their own immediate

There are of course additional articles in neighbors. Such threats, it is believed, couldeach of these proposals, but these summaries arise not simply by disclosure of the locationcontain the essential operative provisions. of airports, military installations, railroads,These proposals have been tabled, with a fair and highways but also by availability of dataamount of initial support from other coun- such as crop surveys that have economic im­tries, in an environment iI;l which the only plications. In addition, there exists a perva­practical experience has been the United sive if vague and ill-defined feeling that yetStates' ERTS-l. The data from that satellite another area of national if not personal pri­has been handled on a basis of open dissemi- vacy is being violated and that somehow thisnation to anyone who wishes to purchase it at . results in increased vulnerability.a very modest cost. Many nations, individu- All of this is taking place in the midst of aals, and organizations have done so, and most unfortunate but growing internationalscores of scientists and other investigators atmosphere of sauve qui peut while callinghave used the data in their research. The with various degrees of sincerity for moreNASA program, even in its earliest experi- international cooperation. A trend amoungmental stage, has obviously excited the in- many states toward increased isolation ratherterest and imagination of people around the than coordination, toward separatism ratherglobe, and as time passes more and more gov- than cooperative efforts, toward secrecyernments are evincing interests in greater rather than the open and mutual exchange ofcooperative efforts, including construction of ideas and information, has become evident intheir own ground stations. The question then many international forums, and unhappilyarises: Why, in face of this enthusiasm, does the area of man's progress in outer space hasthere appear to be broad support for reversing not been immune.the current approach and adopting a systemin which the prior consent of each state in anarea would be required before a satellite

DIPLOMATIC AND LEGAL ASPECTS OF REMOTE SENSING 179

than for many other countries to advocate,with conviction, an open-data-disseminationsystem. On one level we are accustomed to asociety which teaches, if not always perfectlyapplies, the theory that the greatest good forthe greatest number of people can be ob­tained by the open and free exchange of ideasand information. We obviously do not haveexclusive rights to that theory, but nonethe­less it seems to be a principal tenet of oursystem and to be as valued here as anywhere.

On another level, although it may be dabat­able whether we have relatively more to gainfrom an open-dissemination system than doother states, it does seem apparent that eitheron the realistic or fantastic levels we havemuch to gain and little to lose. We have al­ready without inhibition published data fromERTS-l covering the entire United States,and that data is available to anyone whowishes to purchase it.

We do happen to believe as well that theinternational community as a whole andother nations in particular also have much togain by increasing their knowledge aboutthemselves, their regions, and their world. Itis our view that a restrictive-data­dissemination policy requiring the prior con­sent of each state could impair and perhapseliminate remote sensing programs of thetype we have been discussing, and could infact ensure rather than avoid the unequal ac­cess to information that is so feared by many.Even ifthe technical difficulties ofseparatingimages or data along political boundariescould be overcome, the economic cost ofdoing so appears to be prohibitive. That costis enhanced by the likelihood that completeregional, let alone global, agreement willhardly be attainable, and hence complete re­gional or global data would hardly ever beavailable.

United States representatives have onseveral occasions stated that this country hasno interest in forcing data from our remotesensing systems on anyone else. If much ofthe rest of the world prefers either to partici­pate in no system or to establish another sys­tem on a restrictive dissemination basis, wewould consider it most unfortuante foreveryone, but we would be willing to pro­ceed with our experiments and, if the deci­sion were made, with an operational programon a unilateral or bilateral basis without try­ing to compel anyone else to obtain our data.

It is our firmly held belief that the 1967Outer Space Treaty endorses the right of allstates to use outer space for remote sensing aswell as other peaceful purposes, and we arenot inclined to agree to restrictions on our

right to do so. We have also stated in theUnited Nations that if the United States de­cides to move to an operational remote sens­ing system paid for by American taxpayers wewould certainly anticipate that under TheNational Aeronautics and Space Act of 1958the data derived would be available toAmerican citizens. Ifthis is the case, commonsense and human nature make it inevitablethat others would obtain at least parts of thatdata, resulting in unequal and discriminatorydissemination, and enhancing rather than re­ducing the ground for fears of unequal bar­gaining positions in international negotia­tions.

On the question of control over natural re­sources, we agree that the state within whoseterritory they lie has the right to control theirexploration and extraction from that territory.We assert that right for ourselves and do notchallenge it for others; however, we reject theequation of control over resources with con­trol over all information relating to those re­sources. Such an equation is in our view un­realistic and impossible to apply, and wouldhave the most unfortunate effects if attempted.

WHERE Do WE Go FROM HERE?

We are now fully engaged in both the Legaland the Scientific and Technical Subcommit­tees in the United Nations in efforts to findacceptable solutions to these differing viewsand concerns. Considerable confusion stillexists in this dialogue; we do not yet haveagreement on a common terminology, letalone common expectations about thecapabilities of foreseeable remote sensingsystems or the implications of the develop­ment of such systems.

There is as well a basic divergence ofviewson how to begin to address these problems.Some countries believe that a new legal re­gime should be agreed to before any opera­tional program comes into existence, andhence that any such program would then betailored to conform to that regime. Othershave pointed out that significant advantageswould arise from looking first at various or­ganizational schemes which the internationalcommunity might wish to adopt. Only afteragreement is reached on how to handle re­mote sensing systems and data would legalguidelines be adopted to secure conformitywith the preferred organizational scheme.

Fears have been expressed on either side:on the one hand that technological progresswould outpace policy considerations, creat­ing a fait accompli; and on the other, thatadoption of legal standards before it is clearwhat is technically practicable and useful

180 PHOTOGRAMMETRIC ENGINEERING & REMOTE SENSING, 1976

would create artificial and perhaps irrelevantguidelines to future development of remotesensing.

Both views reflect reasonable concerns andin a typical, if not particularly efficient, com­promise the UN Outer Space Committee hasdecided to proceed with both the legal andorganizational analyses simultaneously, eachkeeping in close touch with the other. TheSecretary-General has been asked to under­take a number of feasibility studies of possi­ble organizational approaches and the LegalSubcommittee is evaluating a variety oflegalprinciples.

The greatest hazard in the path of develop­ing constructive and general agreement inthese areas is that an organizational or legalscheme will be adopted too quickly, more onthe basis of an instinctive feeling of vulnera­bility than on a reasoned assessment of thelong-term interests of states and of the long­term direction which the international com­munity may wish to pursue. However, it hasbeen quite correctly pointed out that evennow, as a result of ERTS-l, there are in the

public domain data covering nearly all of theearth's surface. For topographical analysis,integral to the search for natural resources,much data is already irretrievably circulating.

Unless, as some have suggested, we decidethis path is economically or technically notworth pursuing, neither the United States norothers will call a halt to technological progressin this a'rea of space applications. Mor­atoriums in comparable contexts are oc­casionally proposed, but they are neitheruniversally feasible nor popular.

The debate in the United Nations is cen­tered around efforts to resolve apparentlyconflicting pressures: the dangers of movingtoo quickly to be wise in the view of some, ortoo slowly to be effective in the view ofothers, At the very least, we are aware that ourefforts to reach an acceptable solution carrythe heavy burden of encouraging or inhibit­ing the application of this new technology.Which to choose, and in what particular wayto do so, will be for the foreseeable future acontinuing challenge to scientists, techni­cians, politicians, and lawyers alike.

Short Course on Remote Sensing Fundamentals and Applications

andForum on Closing the "Data-Information Gap" Characterizing

Remote Sensing for Environmental Monitoring ,and Resou rce Management

March 9-11, 1976

The two day short course will be aimed atthose in the managerial, scientific, educa­tional and governmental community whohave had only minimal exposure to remotesensing. Treatment of photographic, thermaland multispectral systems.

The one day forum, featuring invitedspeakers, will identify the nature, form andseverity of the real and perceived mis­matches between existing remote sensingtechnology and its productive application to

environmental monitoring and resourcemanagement problems at the local tostatewide level. Forum is sponsored by theConversation in the Disciplines Program ofthe State University of New York.

Presented in cooperation'with the CentralNew York Region of ASP. Thomas M. Lil­lesand, conference director. For more infor­mation, registration forms and hotel room ap­plications, contact:

Dean, School of Continuing EducationState University of New YorkCollege of Environemental Science and ForestrySyracuse, New York 13210