外层空间遥感法律制度浅析
Premature Legal Framework of Remote Sensing from Outer Space
From the introduction of technical doctrines， Remote sensing satellites make it possible to gather information on mineral resources， weather and climatic changes， as well as resources management and it can be drawn a conclusion that remote sensing is a human activity which has already been practice in connection with common interests all over the world for scores of years. Initial discussions regarding remote sensing from outer space took place at the First UN Conference on Peaceful Uses of Outer Space in Vienna in 1968. In the early 1970s， Argentina， Brazil and other Developing countries asserted that each State has permanent sovereignty over natural resources within their territory and that any information acquired regarding those resources was included in the concept of sovereignty. Thus， developing countries argued that the consent of the sensed State was a prerequisite to any space-based remote sensing of their sovereign territory. Moreover， they maintained that if remote sensing did occur， they were entitled to any data generated and that the distribution of such data to third parties was impermissible without the consent of the State sensed.
Actually， following the launch of the first civilian remote sensing satellite in 1972， developed as well as some developing countries had been demanding some special legal regime， significantly since 1978， when the Working Group set up under UNCOPUOS finally finished their draft of 17 principles. “Events in the Working Group may well have been a straw in the wind for a trend that was soon to become apparent in another forum. This trend clearly reflected the mounting influence of developing countries and the pressure of their combined weight in international affairs. It was manifest in the Second UN Conference on the Exploration and Peaceful Uses of Outer Space （UNISPACE II）， which was convened in Vienna in August 1982.”（1） However， if the misgivings entertained by some Western industrialized powers about possible controversy regarding the interpretation and application of some of the potential principles treaty， were ignored， the ultimate result would be completely different. After a lengthy debate on the Conference， the Principles Relating to Remote Sensing of the Earth from Space （Principles）， which was annexed in UN resolution 41/65， was approved and adopted unanimously on December 11th， 1986.
These final 15 principles， general speaking， recognize the great benefit possibly derived from remote sensing and also the opportunities potentially arising from the misuse. After all， it is understandable for a UN resolution， in and by itself， being not legally binding or not leading to serious conflicts. Rather， it‘s been highlighted in the ensuing discussion for a couple decades. Before focusing on possible controversial issues， a glance at those unlikely for dispute is necessary. Apart from the technical definition（2） ， basically， those principles， as reiterations of already accepted principles of outer space law， in particular， supervised under or even copied verbatim et literatim from 1967 the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space， including the Moon and Other Celestial Bodies （Outer Space Treaty）， are candidates of disqualification for controversy. For example， Principle II， “Remote sensing activities shall be carried out for the benefit and in the interests of all countries”（3） ， III， “shall be conducted in accordance with international law”（4） ， and IV， “irrespective of their degree of economic or scientific development and stipulates the principle of freedom of exploration and use of outer space on the basis of equality”（5） . These particular UN Principles are merely a restatement of terms from the Outer Space Treaty or other well-established customary international law. In a sense， such principles might not escape the characteristics of obscurity or ambiguity， either of which， however， is not a unique issue to the level of remote sensing framework but to the level of international space law and does not refer to the emergency of divergent textual interpretations of such resolution.
Additionally， the same as foregoing cases， to provide an added protection for the sensed state， Principle IV adds that remote sensing activities must be conducted with respect to all States‘ permanent sovereignty over its wealth and natural resources， and may not be conducted in such a manner detrimental to the legitimate rights of the sensed State（6） ， even though the issue of sovereignty of sates over their own natural resources， including information derived from remote sensing regarding such resources had been one of the most bothersome issues for many years during the drafting process and has served as a stumbling block to achieving consensus（7） ， which will be discussed hereinafter. Besides， “[A]n associated principle， lacking expectations of future controversiality， is the principle that a State carrying out remote sensing programs is to inform the U.N. Secretary-General in accordance with Article IV of the Registration Convention and Article XI of the Outer Space Treaty”（8） ； “Also， the principle relating to the promotion of the protection of the Earth’s environment and disclosure of information that is capable of averting any phenomenon harmful to such environment as well as the principle applicable to the promotion of the protection of mankind from natural disasters and the transmittal of relevant information to affected States.”（9） （10） Hence， the UN Principles also make it clear that the protection of the earth‘s environment and the protection of mankind from natural disasters are of extreme importance.
In contrast to those foregoing principles， there are plenty of possible areas where differences of interpretation may arise. First of all， the UN Principles apply only to “natural resources management， land use， and the protection of the environment，”（11） media， meteorological and military applications are supposed not included（12） .Thus it is conceivable that news organizations may disregard the entire Principles if strictly interpreted from a literal standpoint. And also， the Principles do not apply to military reconnaissance or surveillance. Such kind of identification in narrow sense was contributed to those sufficiently broad terms in the context of the Principles， in avoidance of failure to achieve unanimity on a set of other civilian activities. In fact， in utmost circumstances， unanimity plays a role no more than adoption by negative consensus without majority votes（13） . This is just the beauty of a UN resolution with toleration on deliberations permeated through， rather than an international convention， which may not be traced to opposed positions. As mentioned hereinbefore， despite the great influence by developing countries and their combinations such as “Group 77”， the developed countries especially the Western powers‘ endeavor of trying not to conclude a treaty was even more significant. “One championed by the United States and many western nations regarded the freedom of acquiring and imparting information as a fundamental human right whereas developing nations and the Soviet-led socialist countries predicted their case as their inalienable right to dispose of their natural resources and of information concerning such resources.”（14）
Hence， the controversial issues are centering on those principles newly introduced under international cooperation， which can but be led by technically developed countries and seemingly benefit the developing nations， paying attention to “and taking into particular consideration the needs of the developing countries”（15） . Simply speaking， the United Sates had long been a proponent of the international availability of remotely sensed data on a nondiscriminatory basis， commonly referred to as the “Open Skies” policy. The UN Principles largely embodied this policy in the way of triple conceptions， which are equitable participation， technical assistance and access to data. Although non-binding， the U.S. commercial remote sensing regulatory regime recognizes them， for the most part， as international obligations and requires those licensed in the U.S. to comply with the data accessibility principle. The reason is that the Principles given birth to in multilateral moves were substantially in virtue of the American previous practices in bilateral approach.
To illustrate， those Landsat agreements before the Principles may best be taken as an example， which are agreements concluded between the National Aeronautics and Space Administration （NASA） of U.S. and a number of countries spread over the world： Argentina， Australia， Brazil， Canada， India， Italy， Japan， Sweden etc.（16） “The authority for NASA to enter into such agreements derives from the NASA Act of 195， which provides ‘that activities in space should be devoted to peaceful purposes for the benefit of all mankind’， while Section 205 of that Act empowers NASA to ‘engage in a program of international cooperation in work done pursuant to this Act， and in the peaceful application of the results thereof’。”（17） For those countries， the Landsat agreements involved the building of ground stations for acquisition and processing of remote sensing satellite data， at their own expense. In addition to each country paying for its own share in the project， it was also agreed under Landsat arrangements that data obtained from experiments would be made available to the international scientific community. Besides， countries without Landsat facilities but within the overcast range of the ground stations would be served with information（18） bona fide， prevailing the principle of pacta tertiis nec nocent nec prosunt. Such practice was borne the acquiescence in meeting of minds that a sensor state might conduct without consent in advance from sensed state. Besides， advanced technology was not in monopoly by mutual agreements and the data would be in publicity for the world.
Hence， imitationally and correspondingly， Principle V says， “States carrying out remote sensing activities shall promote international cooperation in these activities. To this end， they shall make available to other States opportunities for participation therein. Such participation shall be based in each case on equitable and mutually acceptable terms”； and Principle VI， “In order to maximize the availability of benefits from remote sensing activities， States are encouraged， through agreements or other arrangements， to provide for the establishment and operation of data collecting and storage stations and processing and interpretation facilities， in particular within the framework of regional agreements or arrangements wherever feasible.” The mutual agreements are hereby highlighted as a guarantee for feasibility of participation， because without contractual transactions， the term “equitable” may fall into inconsequential extension of its subjects as well as objects， whereof the “opportunities” seem surprising chance rather than rational expectation. In a nutshell， the UN Principles are considered to permit States to freely sense and publicly distribute data from outer space without the consent of the sensed State. Moreover， it is now regarded as well-established customary international law that remote sensing may be conducted without prior consent. For dissemination， such kinds of conclusions are at least drawn directly by some scholars on ground of the absence of specific provisions in the Principles concerning dissemination of data.
As for sensing， “[A]lthough it has been argued by some nations that prior consent for remote sensing of a State should be sought， such protestations have never adversely affected operational progress. Principle XIII of the Resolution mentions prior ‘consultation’ and not ‘prior consent’。 It is formulated as follows： to promote and intensify international cooperation， especially with regard to the needs， of developing countries， a State carrying out remote sensing of the earth from space shall， upon request， enter into consultation with a State whose territory is sensed in order to make available opportunities for participation and enhance the mutual benefits to be derived therefrom. Consensus could not be reached regarding prior consultation， but it is clear， nonetheless， that a state considering that it is likely to be subjected to foreign remote sensing has a right， and without restriction， to request that consultations take place and that the requested State ‘shall’ enter into consultations with a State whose territory is sensed.”（19） Such inference represents some optimistic viewpoints but doesn‘t stand adequate reasons for its feasibility. As Myers pointed out， “[T]he Third World States are faced with serious problems， primarily because they do not possess the technology and means to conduct remote sensing. They must rely on the developed States to provide the data and to assist in the analysis”（20） .
In light of the negotiating positions， such principles provided for may make no more sense but for any State in possession of ripe technology， whether it‘s a developed country or a developing country. As exemplified， there has been a bright nova in the outer space undertaking in recent three decades， People’s Republic of China， since the Chinese first recoverable remote sensing was successfully launched and recovered in 1975 and China Remote Sensing Satellite Ground Station （RSGS） began operated functioning in 1986. China has made sufficiently rapid progress in spatial undertaking and become one of the leading countries in remote sensing technology， on the basis of which， China is substantially capable to participate in international cooperation with other foreign satellite management authorities， for example， in 1999， the China-Brazil Earth Resources Satellite 01 （CBERS 1） collectively explored and developed by both countries was successfully launched as the beginning of a satellite series（21） ； in 2003， China RSGS had concluded or continued implementing a series of international or regional agreements， including Landsat-5/7 with America USGS， Spot-1/2/4/5 and Envisat with France CNES and Spot Image， Radarsat-1 with Canada CSA and RSI， ERS-2 with ESRIN subsidiary to ESA， Envisat Data Reception with Norways Kongsberg Spacetec， attendance on India IRS Conf. etc. Considering the previous examples of U.S. and China， it‘s obvious that available opportunities for equitable participation must not be lack of the reciprocal technical ability and negotiations.
In summary， Principle V and VI are deemed to confirm the unrestricted right to remote sensing without prior consent or notification. Additionally， remote-sensing States are required to enter into consultations with sensed States upon request. In this sense， Principle XIII is attributed much more in return for technical discrepancy situations. Furthermore， States conducting remote sensing are required to provide technical assistance on mutually agreed terms and are encouraged， preferably through regional agreements， to establish data collection， storage， processing and interpretation facilities， by Principle VII（22） . The reason for these provisions is evident inasmuch as the application of the relevant principles in such case is made dependent on “mutually acceptable terms”。 Concretely， such made available “technical assistance” should also apply the previous two principles， as stipulating the needs of developing countries and “whenever feasible” is at hands. Moreover， in return， the state subject to remote sensing has access to the data on a non-discriminatory basis and at a reasonable price. Those states conducting remote sensing activities must make available to all States， at their request and to the greatest extent feasible and practicable， any relevant non-discriminatory access and it was part of the U.S. “Open Skies” policy to begin with and codified by Principle XII（23） . This includes access to available analyzed information in the possession of any State participating in remote sensing on the same basis and terms， and most significantly， sensed States shall have access to primary and processed data concerning the territory under their jurisdiction as soon as it is produced on a nondiscriminatory basis and on reasonable cost terms. Nevertheless， this could not be viewed as a victory when it comes to furthering the development of lesser developed countries in that they should have immediate access to state of the art data and information on reasonable terms， provided the guarantee that they have the means to pay for it.
Problems remain， certainly. How will the sensed State know the data or information has been produced？ What is the real meaning of information regarding such activities？ Furthermore， apart from the contractual transmission， is there isocracy in remote sensing legal framework， especially in the case of technical assistance， whereas it is not pure assistance but the assisted states conduct partial arm‘s length deals， inter alia， binding the demanded access to data？ Last but not the least， apart from the method of covenant encouraged， even a little bit broadly interpreting， from the angle of a third party state， are the acquirement and the dissemination of remote sensing data needing the prior approval of operator state or sensed state， or is it ad libitum on sovereignty？ Such problems have kept Gordian knots in the circumstances of great technical， economic and political discrepancy amongst the countries. Not only the sensed states emphasized sovereignty in remote sensing activities， but also the sensor states highlighted it on verification issue. Data is treasure， and before ideally contributed to and shared by the world， must be proprietary by some subjects， whether there is any agreement or not. To resolve such communicative problem， in 1978， a proposal to create an International Satellite Control Agency was tabled by France during the first session of the Disarmament Conference of the United Nations held in New York. This proposal again came up for debate at the Second Disarmament Conference in 1982. The main motivation behind the proposal was inspired by military considerations.（24）
“Among the most important tasks to be entrusted to the Agency under the French proposal would be the acquisition， processing and dissemination of data and /or information. ‘Data’ in this context would include rough images and electromagnetic signals obtained by the Agency‘s satellites， or put at its disposal by satellite-operating States. ’Information‘ would include the analysed results of the data as well as all other information on arms systems， geographical conditions， military installations etc.， which would be useful to the Agency in accomplishing its duties. Such auxiliary information would become available either from freely accessible sources or be supplied by individual member States.”（25） Regretfully， such proposal did not seek for supportive comments from U.S. or USSR at that time， and was nullified with regards to excessive expenditure involved.（26） Albeit； in the UN Principles， such directive spirit was incorporated in Principle VIII， “The United Nations and the relevant agencies within the United Nations system shall promote international cooperation， including technical assistance and coordination in the area of remote sensing”。 However， without realistic attraction to technically developed countries， how come it seems much chance of this strategy realized in the foreseeable future？ So， such problems are staying a host of discussion in the scholarly literatures.
Finally， turning backwards to Principle IV， the declaration of sensed state‘s legitimate rights on sovereignty， deemed as not incentive for controversy as aforementioned， had strictly interpreted as only referring to the conduct of remote sensing activities but not including the detrimental results caused by dissemination of data， especially to the non-participant states. While the U.S. accepted international responsibility for the outer space activities of its governmental or non-governmental entities， it could never accept the extension of such responsibility to terrestrial activities， as championed by the Soviet-led socialist countries， except in accordance with generally recognized principle of international law. （27） Reaching compromises in correspondence with such attitudes， the Principles states logically circular recommendations in Principle XIV（28） ， and a non-envisaged dispute settlement procedure in Principle XV（29） . In sum， the enforcement of international liability is also controversial but beyond this article.
「注释」
1 See， Prof. Dr. I.H. Ph. Diederiks-Verschoor： An Introduction to Space Law， p. 68， Kluwer Law and Taxation Publishers， Deventer-Boston， 1993
2 Principle I， part of paragraph （a）， “The term ‘remote sensing’ means the sensing of the Earth‘s surface from space by making use of the properties of electromagnetic waves emitted， reflected or diffracted by the sensed objects” and （b） – （d）。
3 Part of 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 technological development，…”
4 Principle III， “Remote sensing activities shall be conducted in accordance with international law， including the Charter of the United Nations， the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space， including the Moon and Other Celestial Bodies， and the relevant instruments of the International Telecommunication Union.”
5 Part of Principle IV， “Remote sensing activities shall be conducted in accordance with the principles contained in article I 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， 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 the basis of equality”。
6 Part of Principle IV， “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 activities shall not be conducted in a manner detrimental to the legitimate rights and interests of the sensed State”。
7 See， N.M. Matte H. DeSaussure： Legal Implications of Remote Sensing from Outer Space， eds. 1974， 1976， contributions presented at proceedings of the Symposium appeared in citation of Legal Implications， held at McGill University， Montreal， Canada， Oct. 1975
8 See， Stephen Gorove： Development in Space Law， Issues and Policies， p.306， Martinus Nijhoff Publishers， P.O. Box 163， 3300 AD Dordrecht， The Nethelands， Kluwer Academic Publishers incorporates the publishing programmes of， 1991. Part of Principle IX， “In accordance with article IV of the Convention on Registration of Objects Launched into Outer Space 4 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” .
9 “Nonetheless， issues may be raised， for instance， as to whether droughts are to be included in natural disasters o whether a particular remote sensing activity promotes the protection of the Earth‘s natural environment in a given case or whether the data or information relative to natural disasters has in fact been transmitted ’as promptly as possible.‘” Id. p.310. And the response of related parties during the tsunami happening on Dec. 26th， 2004， might reveal such raising problems. ——Author
10 Principle X， “Remote sensing shall promote the protection of the Earth‘s natural environment. To this end， States participating in remote sensing activities 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 mankind from natural disasters. To this end， States participating in remote sensing activities that have identified processed data and analysed 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”。
11 Principle I， part of paragraph （a）。
12 See， Sloup： Mediasat， Gray Reconnaissance， and the United Nations Principles on Remote Sensing， ， p. 327， 30 Proc. Colloq. L. Outer Space 322， 1987.
13 See the statistics on the official website of UN Office at Vienna： www.oosa.unvienna.org/SpaceLaw/gares/index.html
14 Id. Note 8 supra， p.295.
15 Part of Principe II
16 See， E. Galloway： Remote Sensing from Outer Space： Legal Implications of Worldwide Utilization and Dissemination of Data， Id. Note 7 supra， p.91 a.f.； also See， G.J. Mossinghoff and L.D. Fuqua， United Nations Principles on Remote Sensing： Report on Developments， 1970-1980， p.103， Journal of Space Law， Vol.8， 1980
17 Id. Note 1 supra， p.67
18 Ibid.
19 See， C.Q. Christol， Remote Sensing and International Space Law， pp. 21-44， Journal of Space Law， Vol.16. 1988
20 See， D.S. Myers， Third World Participation in Space Law Development， pp.130-134， Proceedings 31st Colloquium （Bangalore， 1988）； also See， C.C. Okolie， International Law of Satellite Remote Sensing and Outer Space， Chapter 6， 1989
21 CBERS 2 was successfully launched in 2004.
22 Principle VII， “States participating in remote sensing activities shall make available technical assistance to other interested States on mutually agreed terms.”
23 Principle XII， “As soon as the primary data and the processed data concerning the territory under its jurisdiction are produced， the sensed State shall have access to them on a non-discriminatory 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 possession 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.”
24 See， I.A. Vlasic， Verifying Compliance with Arms Agreements： Whatever happened to “ISMA”？ ， p. 194 a.f.， Arms Control and Disarmament in Outer Space， N.M. Matte， ed. 1985
25 Id. Note 1 supra， pp.73-74.
26 These two super powers were known in pursuit of maintenance for peaceful purposes by SALT I II Agreements. Also See， J.L. Magdelénat ： The Adoption of Principles Relating to Remote Sensing and Their Major Effects on Surveillance Activities， pp.175-188， Id. Note 24 supra， Vol. II， 1987
27 UN Doc. A/C. 105/c. 2/SR. 387， pp. 8-9， 1983
28 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 principles and the norms of international law， irrespective of whether such activities are carried out by governmental or non-governmental entities or through international organizations to which such States are parties. This principle is without prejudice to the applicability of the norms of international law on State responsibility for remote sensing activities.” Also See， 1972 Liability Convention.
29 Principle XV， “Any dispute resulting from the application of these principles shall be resolved through the established procedures for the peaceful settlement of disputes.”
黄英亮