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by Dr. Ruwantissa Abeyratne

Exploring outer space

Originally, the exploration of outer space was undertaken for military and scientific purposes. Therefore, the sole protagonists in this exercise were States, such as the United States and the Union of Soviet Socialist Republics (now the Russian Federation) and some International Organizations.

Prominent among the latter was the United Nations Office for Outer Space Affairs which was responsible for the work of the Committee on Peaceful Uses of Outer Space (COPUOS).

The exploration of outer space was undertaken within a stringent regulatory umbrella, and exploration was carried out under the firm principle established by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, otherwise known as the Outer Space Treaty of 1967, that the exploration and use of outer space shall be the province of all mankind.

In other words, States which undertook activities of outer space exploration had to carry out such activities for the benefit of and in the interests of all countries, irrespective of their degree of economic or scientific development.

However, the current trend in space activities clearly shows a significant detour toward commercial activities, as a consequence of which actors other than the traditional States and International Organizations have entered the arena. This commercial activity is predominantly seen in satellite communications and in satellite remote sensing.

Legitimate rights

States carrying out remote sensing activities are required to promote international co-operation in these activities. To this end, they are required to make available to other States opportunities for participation therein. Such participation shall be based in each case on equitable and mutually acceptable terms.

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.

States participating in remote sensing activities are legally bound to make available technical assistance to other interested States on mutually agreed terms. From a global perspective, the United Nations and the relevant agencies within the United Nations system are required to promote international co-operation, including technical assistance and co-ordination in the area of remote sensing.

A State carrying out a program of remote sensing has to inform the Secretary-General of the United Nations. It shall, moreover, make available any other relevant information to the greatest extent feasible and practicable to any other State, particularly any developing country that is affected by the program, at its request.

One of the seminal purposes of remote sensing is to 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 can be used to avert any phenomenon harmful to the Earth's natural environment are required to disclose such information to States concerned.

Another purpose of remote sensing is to promote the protection of mankind 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, are required to transmit such data and information to States concerned as promptly as possible.

It is also required at international law that, as soon as the primary data and the processed data concerning the territory under its jurisdiction are produced, the sensed State will have access to them on a non-discriminatory basis and on reasonable cost terms. The sensed State shall also have access to the available analyzed information concerning the territory under its jurisdiction in the possession of any State participating in remote sensing activities on the same basis and terms, particular regard being given to the needs and interests of the developing countries.

Furthermore, in order to promote and intensify international co-operation, especially with regard to the needs of developing countries, a State carrying out remote sensing of the Earth from space is required, upon request, to enter into consultations with a State whose territory is sensed in order to make available opportunities for participation and enhance the mutual benefits to be derived therefrom.

Finally, it is recognized that States operating remote sensing satellites will bear international responsibility for their activities and assure that such activities are conducted in accordance with the provisions of the Treaty 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.

State responsibility

The Outer Space Treaty, while expostulating the fundamental principle in its Article 1 that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, explicitly imposes in Article VII international liability and responsibility on each State Party to the Treaty, for damage caused to another State Party or to its populace (whether national or juridical) by the launch or procurement of launch of an object into outer space.

In its preceding provisions the Treaty imposes international responsibility on States Parties for national activities conducted in outer space. The Treaty also requires its States Parties to be guided by the principle of co-operation and mutual assistance in the conduct of all their activities in outer space.

This overall principle is further elucidated in the same provision to the effect that States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extra terrestrial matter.

The Moon Agreement of 1979 provides that in the exploration and use of the moon, States Parties shall take measures inter alia to avoid harmfully affecting the environment of the earth through the introduction of extra terrestrial matter or otherwise.

The Liability Convention of 1972 contains a provision which lays down the legal remedy in instances of damage caused by Space objects. Article II provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft in flight, thereby imposing a regime of absolute liability on the State that launches space objects such as satellites, which provide technology and communication that is used for air navigational purposes.

Although admittedly, both the Outer Space Treaty and the Liability Convention do not explicitly provide for damage caused by technology and communication provided by space objects, culpability arising from the "common interest" principle and liability provisions of the two conventions can be imputed to States under these Conventions.

In the field of international space law, two clearly connected terms have been used: liability and responsibility. Although "responsibility" has not been cohesively interpreted in any legal treaty relating to outer space, "liability" occurs in the Liability Convention and is sufficiently clear therein.

This, however, does not mean that State responsibility is not relevant to the obligations of States law as, in international relations, the invasion of a right or other legal interest of one subject of the law by another inevitably creates legal responsibility.

As a reputed authority in public international law, Professor Ian Brownlie, observes, "today, one can regard responsibility as a general principle of international law, a concomitant of substantive rules and of the supposition that acts and omissions may be categorized as illegal by reference to the rules establishing rights and duties.

Shortly, the law of responsibility is concerned with the incidence and consequence of illegal acts, and particularly the payment of compensation for loss caused" Therefore it would not be incorrect to assume that responsibility is the necessary corollary of a right and all rights of an international character involve international responsibility. It follows then that if the obligation in question is not met, responsibility entails the duty to make reparation.

There is also explicit recognition that principles of international law apply to space law. The General Assembly of the United Nations in 1961 adopted the view that international law, including the Charter of the United Nations, applies to outer space and celestial bodies.

It is also now recognized as a principle of international law that the breach of a duty involves an obligation to make reparation appropriately and adequately. This reparation is regarded as the indispensable complement of a failure to apply a convention and is applied as an inarticulate premise that need not be stated in the breached convention itself.

As discussed, both treaty law and general principles of international law on the subject of space law make the two elements of liability and responsibility a means to an end - that of awarding compensation to an aggrieved State or other subject under the law. Therefore, in view of the many legal issues that may arise, the primary purpose of a regulatory body which sets standards on State involvement in issues concerning the use of space technology would be to carefully consider the subtleties of responsibility and liability and explore their consequences on States and others involved as they apply to the overall concept of the status of a State as a user of space technology which may cause harm or injury to the latter.

The question now at issue is "what are the rights and liabilities of a country such as Sri Lanka in this boiling cauldron of commercial competition in outer space activity"? Firstly, every State must accept that Earth observation data, obtained through remote sensing, and communications via satellite are an essential tool for sustainable development and its management. Also, that observation of the Earth from outer space can be a useful tool in providing solutions to the complex web of environmental and geo physical problems confronting the Globe.

A question that might be asked is whether remote sensing would encroach on a country's privacy or enable entrepreneurs to exploit a nation's resources. In both instances, it would seem that The United Nations principles of 1986, as discussed, provide adequate protection, ensures fair usage and establish "preferential measures"for developing countries in sharing the resources emerging from both satellite communications and remote satellite sensing and in protecting their rights inherent at international law.

Although perhaps the most practical, and indeed efficient tools that Sri Lanka might gain from commercial activities in outer space is the use of satellite imagery as harbingers of natural disasters and bad weather. However, it would not be premature to consider the usefulness of satellite imagery in retrospective determination, such as in evidence at trial hearings in the courts of law.

Satellite image production commences when digital data are transmitted to the receiving station on the ground from a satellite and are recorded on a magnetic tape. Data so received is adjusted for atmospheric interference and corrected for geometric precision. These processes are necessary and are deemed to be appropriately carried out and if satellite images were to be accepted as evidence.

The proliferation of satellite imagery and its prodigious use as an effective source of spatial, temporal and spectral information makes images taken from outer space burgeoning tools for litigators in their quest for success in the trial process.

The most fundamental driver in this process is the acceptance by Courts of satellite imagery as a credible source of information. As explained in this article, there are a few impediments that may preclude this particular kind of evidence as being admitted within the purview of traditional rules of evidence. Questions of authentication, reliability and relevance would be critical issues in this process, along with transparency.

However, given the accuracy and safeguards now inherent in sophisticated technology and the advanced expertise of the professionals who analyze and interpret satellite images, this type of evidence may well be widely accepted in the future.

The freedom of the use of outer space would be meaningless if one were to reject its many benefits. If the space odyssey has already arrived in the rapidly developing and onward thinking nations such as our own, it should not be an unwelcome visitor.

(The author, who works at the International Civil Aviation Organization, is a member of the Space Law Committee of the International Law Association)

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