Jurisdiction and control at sea: the case of evidence from

satellites Marco Ferrazzani

Legal Counsel and Head of the Legal Department, European Space Agency

1st MARSAFENET Plenary Conference

6 June 2013, Rome

Space tools and data: an overview

–  Satellites are very powerful tools –  Global coverage and fast revisit times –  Huge information content, few conditions –  Automated processes or command chains –  Many uses (e.g. communication, navigation, observation)

–  Distinguish satellite applications –  In the context of maritime jurisdiction and control, all

satellite applications can be relevant: from ship detection to marine environment monitoring and control

–  Focus on Remote Sensing (RS) applications

–  Today’s RS tools and data –  Dozens of RS satellites deployed in space –  Radar and optical (high and medium resolution) imagery

especially useful in the context –  Advantage of Radar: weather-independent monitoring! –  ESA-EU GMES (Copernicus) European system

Sentinel-2

Envisat ASAR

Three illustrations of satellite capacities in the context of maritime jurisdiction and control

PIRASAR 2009 (EMSA-ESA): Demonstrate satellite surveillance for vessel monitoring in Gulf of Aden [VHR, Opt., AIS]

Oil Spill Detection and Int. Charter Space & Major Disasters: ESA Envisat image of Deepwater Horizon Disaster 2010

Long-Range Identification and Tracking System LRIT (IMO): combined information of several systems incl. satellites

The international legal environment: Remote Sensing

–  International Space Law: –  Public International Law applies to space activities including RS –  Art.1 Outer Space Treaty: Freedom of performing RS activities –  UN Remote Sensing Principles A/RES/41/65 (freedom to sense, but sensed

state shall have data access on non-discriminatory basis)

–  Other documents applicable (excerpt): –  Various national laws on (the use of) satellite data, e.g. US Land remote

Sensing Policy Act 1992, CRSSP 2003, German satellite data act 2007 etc.) –  ECHR 1953, OECD Privacy guidelines, EU Data Processing Directive 95/46/

EC, INSPIRE Directive 2007/2/EC

Ø  Remote Sensing by satellites is permitted (and encouraged) under int. law; certain restrictions in national laws

Ø  Several principles are established on int. level, such as cooperation, promotion of environmental protection, data access on non-discriminatory basis by sensed state, etc.

The international legal environment: maritime law

–  International Maritime Law: –  United Nations Convention on the Law of the Sea (UNCLOS) 1982 –  International Maritime Organisation (IMO) Conventions with direct or indirect

relevance for (possible) RS applications: COLREGs 1972, SOLAS 1974, INMARSAT Operating Agreement 1976, MARPOL and its Protocol (1973/78, e.i.f. 1983), other instruments regarding oil pollution damage, etc.

Ø  These instruments do not explicitly mention RS, but the scope of application of space based remote sensing and these instruments is partially overlapping

–  Territorial sea and other legal zones: –  Convention regarding the regime of straits 1936, various other bi- or

multilateral instruments –  Maritime Security: Convention for the suppression of unlawful acts against

the safety of maritime navigation (SUA) 1988 –  Statute of the International Tribunal for the Law of the Sea

MARPOL and its Annex 1

–  MARPOL - International Convention for the Prevention of Pollution From Ships, 1973 (as modified by the Protocol of 1978):

–  “regulations aimed at preventing and minimizing pollution from ships - both accidental pollution and that from routine operations(…). Special Areas with strict controls on operational discharges are included in most Annexes” (IMO)

–  Currently 151 state parties, 6 technical annexes

–  Art. 6 MARPOL –  1. Parties to the Convention shall co-operate in the

detection of violations and the enforcement of the provisions of the present Convention, using all appropriate and practicable measures of detection and environmental monitoring, adequate procedures for reporting and accumulation of evidence.

–  Annex 1 MARPOL “international duties” –  “wherever there are visible traces”, investigate facts –  Use “appropriate and practicable measures of detection

and environmental monitoring”

“All appropriate and practicable

measures”

Satellites for jurisdiction and control at sea

–  RS data from space can be used in the context of jurisdiction and control at sea :

§  Maritime Pollution §  Oil discharges §  Other waste discharges

§  Environmental parameters monitoring

§  Litigation Evidence

–  Category 1: Verification and supervision

§  Maps and zoning, sea level §  Definition of territorial waters §  Border and coastal control

–  Category 2: Territorial regimes, sovereignty and control, resources

§  Vessel Monitoring Systems §  Automated Identification Systems §  Ice monitoring in arctic waters

–  Category 3: Marine traffic management and safety

§  Safety of Life, Rescue §  Weather / meteorology

§  Marine resources §  Fishery (also under Category 1) §  River flow diversion, etc.

International case law: disputes on delimitation

–  Boundary delimitation: a common international dispute category –  Satellite images and products (maps) have been repeatedly allowed by

international courts and tribunals

–  Example 1: Bangladesh vs. Myanmar on the Bay of Bengal (2012) –  Maritime boundary delimitation (coastline configuration) –  Only ITLOS judgement (case no. 16) using satellite evidence so far –  Satellite evidence brought forward for arguing the establishment of the

provisional equidistance line

–  Example 2: Guyana vs. Suriname (2005) –  UNCLOS arbitral tribunal –  Guyana contention of Suriname’s low-water line, supported with map and

satellite evidence; the tribunal admitted evidence from both parties regarding the accuracy of that line (then rejected Guyana’s challenge)

Ø  Satellite data are an established and growing tool in (maritime and land) delimitation cases, admitted by tribunals and courts

International case law: environmental pollution

–  Technical issues associated to legal valuation: Difficult to discriminate between oil spills and “look-alikes”: further information and in-situ verification needed

–  Oil spill events, forbidden and sanctioned, are an important and easily satellite-detectable source of marine pollution

–  No international case law existing regarding oil spill + RS evidence

–  However, one example of national case law: Singapore 1996, using an ESA ERS Image as evidence for oil spill pollution

Ø  Oil Spill detection is both a) a classic example of the advantages of RS technology and b) regulated by international legal sources

Ø  No international case yet, but likely to come in the future

–  European oil spill detection services using satellites: CleanSeaNet (EMSA), KSAT Oil Spill Detection Service (Norway), SeaU, MyOcean-2

“ Prestige” disaster, Spain 2002 (ESA

Envisat)

Possible future areas for satellite evidence

–  Although oil spill / pollution monitoring and boundary disputes are the most often cited cases for the use of satellite data as evidence, others could be:

–  Coastal changes and sea level changes –  Fish depletion (sea temperature influencing

health of maritime populations) –  Ship identification through high-resolution

images (supporting evidence) –  Meteorological situations in a given moment in

remote areas (wind / cloud/ storm / ice) –  Environmental changes & resources (e.g. Arctic) –  Maritime illegal traffic, military movements –  Pipeline supervision, etc.

Ø  Satellite applications will reach out to new areas Ø  Satellite data will be increasingly used in case of disputes Ø  This raises the question regarding their admissibility as evidence…

Sea Level Rise

Algae bloom

Legal questions (1): validity of evidence from satellites

–  No universal international rules regarding the quality and use of evidence –  International technical norms + standards leading to reliability of RS data –  Processing of data necessary (value adding chain); interpretation of images –  Note: Evidence is always subject to the legal appraisal of a judicial authority;

for satellite images one can state that they must be:

–  Spanish Supreme Court has recognized validity of RS reports; but: “the graphic itself is not the proof. What has value as proof is technical description of it”

Ø  RS satellite data can be and has been used as evidence Ø  There are issues with reliability and availability, as well as with

interpretation (similarly to other expert evidence) Ø  The final decision about admissibility and valuation is with the court

available +  reliable +  translated

Evidence reliability: the case of international (maritime) conventions and tribunals

–  MARPOL: Annex 2 to the Resolution A 152 of the International Maritime Organisation (IMO):

–  All satellite observations must be supported by a signed certificate guaranteeing their authenticity

–  ICC and ITLOS appoint permanent or ad-hoc experts –  Ref. Art. 50 ICJ Statute, Art.62-68 ICJ Rules –  Ref. Art. 77-83 ITLOS Rules (2009): –  “The Tribunal may at any time call upon the parties to produce such

evidence or to give such explanations as the Tribunal may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose.” (R.77)

Ø  Could the MARPOL example become a reference case? Ø  Even if not, courts and tribunals have their standards how to assess

and value evidence and expert information Ø  Satellite images are no longer a single case: IT and digital

photography in general raise questions of authenticity and reliability

Legal questions (2): Individual rights & privacy

–  Two individual rights are of concern in the context: –  Right to privacy [in Int. Law: ICCPR 1966, Art. 8 ECH’; EU DP Directive] –  Right to a fair trial [in Int. Law: Art. 10 UDHR, Art. 6 ECHR, etc.] –  How is the use of satellite images tangent to these rights?

–  Right to Privacy –  Note: only relevant for specific satellite images (if at all): a) high resolution imagery, b) depicting persons or certain

objects of persons; note also: even very high resolution imagery from space shows only “anonymous individuals”

–  Privacy interference can be justified -> restrictions "in accordance with law" and "necessary in a democratic society“ (Art. 8 ECHR)

–  National security has priority over specific rules of data access –  Supervision and control not specific to RS data

–  Right to a fair trial –  A fair trial includes the possibility that all necessary information is accessible –  RS data and expertise not available / accessible at any time –  Call for int. cooperation and information exchange; procedural guarantees

ESA cooperation with other international actors

–  The European Space Agency is: –  deploying newest satellite technology, e.g. for RS –  undertaking international cooperation in the field –  Promoting the build-up of technical and legal expertise

–  Examples of cooperation: –  a) With the European Maritime Safety Agency (EMSA) in the field of

operational use of satellite SAR (Synthetic Aperture Radar) –  Example EMSA service CleanSeaNet

–  Example in marine protection, shipping operations and marine and port control

–  J. Gaviria, Transport Sector Manager, WB: “Agencies involved (…) felt that this information was so unique, so available and so accessible that they really changed their perception on how they can manage the oil pollution and the contamination of the oceans. And this is a revolution.”

–  b) With the World Bank in the field of comprehensive geospatial information for more informed decision-making (30 projects)

38 oil spills detected in 5 months in West Indian Ocean

Conclusion

–  Satellites are a powerful tool to provide objective information,

consistently over time and space, for a wide array of applications

–  Technology opens new questions -> need for capacity building and

inter-disciplinary approaches

–  Use of space data and technology shall

be encouraged rather than undermined

–  Use of space data and technology will

increase, also as legal evidence

–  Privacy is an issue (e.g. Internet, Google Earth), less in terms of

admissibility of current radar / optical images in proceedings

–  Maritime community is hugely benefitting from space data and

technology