1. The UN Principles Relating to Remote Sensing of the Earth from Outer Space Prof. Joanne Irene Gabrynowicz “Soft Law” in Outer Space The Function of Non-Binding Norms in International Space Law 2 April 2011 Vienna, Austria © Gabrynowicz 2011

2. National Center for Remote Sensing, Air and Space Law Overview CaveatsCaveats Development patternDevelopment pattern Some Commentators’ CriteriaSome Commentators’ Criteria ―Intent ―Respect for intent ―Agreed legitimacy ―Reference in bilateral and multilateral agreements ―Elaborate on existing hard law ―“Way station” to treaty or custom? “Hardest” part of soft law: nondiscriminatory access“Hardest” part of soft law: nondiscriminatory access Post-Principles activities: Disasters CharterPost-Principles activities: Disasters Charter Some concluding thoughtsSome concluding thoughts 1

3. National Center for Remote Sensing, Air and Space LawCaveats Presentation does not address soft law as a wholePresentation does not address soft law as a whole Addresses a single substantive subject: the UN Remote Sensing PrinciplesAddresses a single substantive subject: the UN Remote Sensing Principles Addresses only one particular kind of instrument: UNGA declarations of principlesAddresses only one particular kind of instrument: UNGA declarations of principles GA may discuss…may make recommendations... (Art.10 UN Charter)GA may discuss…may make recommendations... (Art.10 UN Charter) ―Does not say can make law of any kind ―ICJ: Nicaragua Case expanded concept of legal force of UNGARs ―Lots of controversy in between; I leave that to others 2

4. National Center for Remote Sensing, Air and Space Law UN Remote Sensing Principles: Travaux Préparatoires Reveal Development Pattern A few primary documents date to early 70sA few primary documents date to early 70s ―1972 1 st Landsat (ERTS) launched “Bell curve” shape:“Bell curve” shape: ―Begins in late 1970s ―Crests in early and mid-1980s ―Tapers off in early 1990 Precipitous drop after 1994Precipitous drop after 1994 Nothing after 2005Nothing after 2005 Most documents by far in 1983-1987Most documents by far in 1983-1987 ―1984 Landsat privatized, followed by attempted commercialization Principles II, IV, and XIIPrinciples II, IV, and XII ―disproportionate amount of energy put into formulation 3

5. National Center for Remote Sensing, Air and Space Law Soft Law Exists in the Middle of a Spectrum Based on Degree of Consent to be Bound Not legally binding. Express agreed law. The UN Principles Relating to Remote Sensing of the Earth from Outer Space

6. National Center for Remote Sensing, Air and Space Law Some Commentators’ Criteria: Intent Criterion: Common intentCriterion: Common intent ―Intention of drafters was to adopt declarations not binding per se ―First set of principles adopted by consensus Criterion: Intent is respectedCriterion: Intent is respected ―No nation has ever formally objected to the Principles 5

7. National Center for Remote Sensing, Air and Space Law Some Commentators’ Criteria: Legitimacy Must be agreed upon Remote sensing nations declare the application of the Principles to their own activitiesRemote sensing nations declare the application of the Principles to their own activities Parts of the Principles have been adopted in some national laws and policiesParts of the Principles have been adopted in some national laws and policies 6

8. National Center for Remote Sensing, Air and Space Law Some Commentators’ Criteria: Reference in Bilateral and Multilateral Agreements Soft law includes bilateral and multilateral agreements and unilateral declarationsSoft law includes bilateral and multilateral agreements and unilateral declarations Some relevant remote sensing agreements that reference the PrinciplesSome relevant remote sensing agreements that reference the Principles ―CBERS ―Cooperation Agreement Concerning the Vegetation SPOT 4 Program ―ERS/Envisat ―Radarsat ―Turin Agreement ―Etc. 7

9. National Center for Remote Sensing, Air and Space Law Principles Elaborate Upon Existing Hard Law for a Specific Application Outer Space TreatyOuter Space Treaty ―“for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development” PrinciplesPrinciples ―“for the benefit and in the interests of all countries, irrespective of their degree of economic, social or scientific and technological development” 8

10. National Center for Remote Sensing, Air and Space Law Principles Elaborate Upon Existing Hard Law for a Specific Application Principle IIIPrinciple III ―“Remote sensing activities shall be conducted in accordance with international law, including…[UN Charter], the…[OST]…and the relevant instruments of the [ITU]” Principle IVPrinciple IV ―“Remote sensing activities shall be conducted in accordance with the principles contained in article I of [OST]” Principle IXPrinciple IX ―“In accordance with article IV of the Convention on Registration …and article XI of the [OST]…” Principle XIVPrinciple XIV ―“In compliance with article VI of the…[OST]…States operating remote sensing satellites shall bear international responsibility for their activities…” 9

11. National Center for Remote Sensing, Air and Space Law UN Principles as a “Way Station” to A Treaty or Custom? Negotiated for decadesNegotiated for decades Codified established conduct of States prior to adoptionCodified established conduct of States prior to adoption Gave greater legitimacy to already existing practicesGave greater legitimacy to already existing practices ―Landsat, SPOT, e.g. 10

12. National Center for Remote Sensing, Air and Space Law UN Principles as a “Way Station” to A Treaty or Custom? Promulgated in 2 nd phase of LSC: Principle makingPromulgated in 2 nd phase of LSC: Principle making ―1 st LSC phase was treaty making ―Principles often seen in response to slow treaty making process First set of principles adopted by consensus after last treatyFirst set of principles adopted by consensus after last treaty ―Signaled return to consensus after 1982 DBS vote ―Early supposition would evolve into a more formal regime ―One step on path to codification 11

13. National Center for Remote Sensing, Air and Space Law UN Principles as a “Way Station” to A Treaty or Custom? Attempts to formalize treaty unsuccessfulAttempts to formalize treaty unsuccessful ―Including more limited attempts to review key statements in the Principles ―Current expectation: will not become a treaty Post 9/11Post 9/11 ―Increased focus on national law ―Split practices emerged re: systems of different resolutions and capabilities 12

14. National Center for Remote Sensing, Air and Space Law The “Hardest” Part of the Soft Law: Nondiscriminatory Access Considerable state practiceConsiderable state practice Standard provision in many bilateral and multilateral agreementsStandard provision in many bilateral and multilateral agreements Adopted in national lawsAdopted in national laws ―Canada, France, Germany, Japan, United States Adopted in national policiesAdopted in national policies ―India, Israel, and Thailand 13

15. National Center for Remote Sensing, Air and Space Law The “Hardest” Part of the Soft Law: Nondiscriminatory Access Clarified or translated as a normClarified or translated as a norm Increasingly defined differently for high, medium and low resolution systemsIncreasingly defined differently for high, medium and low resolution systems ―increasingly restrictive for high resolution; some even lead to criminal sanctions  E.g., Imagesat International, Geoeye, Pleiades, etc. ―Increasingly open for medium and low resolution; trend is free of cost  E.g., Landsat, CBERS, etc. Presumption of openness enduresPresumption of openness endures Denial requires justificationDenial requires justification 14

16. National Center for Remote Sensing, Air and Space Law New Contemporary Significance? Principles do not address clear and specific regulations for new issues, e.g. global systems; however,Principles do not address clear and specific regulations for new issues, e.g. global systems; however, Principle XPrinciple X ―“protection of the Earth's natural environment” Principle XIPrinciple XI ―“protection of mankind from natural disasters” Minimum focus in negotiationsMinimum focus in negotiations But perhaps a “bridge” to…………But perhaps a “bridge” to………… 15

17. National Center for Remote Sensing, Air and Space Law Post-Principles Activities: International Charter Space and Major Disasters NonbindingNonbinding Potentially binding over time if proved by both by State practice and opinio jurisPotentially binding over time if proved by both by State practice and opinio juris Activated approximately 314 timesActivated approximately 314 times Continuously operational for 11 yearsContinuously operational for 11 years Multiple renewalsMultiple renewals Low-level voluntary organizationLow-level voluntary organization 16

18. National Center for Remote Sensing, Air and Space Law Post-Principles Activities: International Charter Space and Major Disasters Relevant Factors Regarding Evolving Status Frequency and number of activations and responsesFrequency and number of activations and responses Quality and effectiveness of activations and responsesQuality and effectiveness of activations and responses Standards, if any, of behavior established by voluntary actionsStandards, if any, of behavior established by voluntary actions Addition or withdrawal, if any, of Parties, Associated Bodies, Cooperating BodiesAddition or withdrawal, if any, of Parties, Associated Bodies, Cooperating Bodies 17

19. National Center for Remote Sensing, Air and Space Law Some Concluding Thoughts Recognition of soft law is prevalent in international environmental lawRecognition of soft law is prevalent in international environmental law The more that remote sensing law relates to environmental matters, the more likely its soft components will be recognizedThe more that remote sensing law relates to environmental matters, the more likely its soft components will be recognized “Dark side” of soft law: any law is better than no law?“Dark side” of soft law: any law is better than no law? ―Weakened due process and authority ―“Soft” gives way to “squishy” that is, anarchy? At what point will “alternative” mechanisms ripen into the new norms?At what point will “alternative” mechanisms ripen into the new norms? 18

20. National Center for Remote Sensing, Air and Space Law The Concluding Thought The most significant aspect about the soft law discussion is that it signals a change from the post-World War II era to the globalization era. Further, in my opinion, it is also a manifestation of fundamental changes occurring in the modern Nation-State system. These changes are analogous to those that gave rise to the law of nations and the modern Nation-State system in the 1400s – 1600s. 19

21. Questions? Comments? Res Communis Blog: A blog on the legal aspects of human activities using aerospace activities http://rescommunis.wordpress.com/

22. National Center for Remote Sensing, Air and Space Law One Half Century and Counting: The Evolution of U.S. National Space Law and Three Emerging Issues By Joanne Irene Gabrynowicz Harvard Law and Policy Review Download at http://hlpronline.com/2010/06/gabrynowicz_space/ 21