-
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”
（
< br>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
no
n
-
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
，