Space technology and marine scientific research

Space technology and marine scientific research

G. M. Danilenko

This article looks at the role of suace The effective and rational utilization of living and non-living resources technology in marine scientific research. It discusses the uses of remote

of the oceans requires further comprehensive study of the phenomena

sensing and its principles and relevant and processes occurring in the marine environment. Investigation of the

international law. marine environment can be conducted either directly in the marine

G. M. Danilenko, kand. iurid. nauk., Insti- environment itself or by means of equipment installed in other areas, in

tute of State and Law, USSR Academy of particular, outer space. As the effectiveness of the relevant space

Sciences, 10, ul. Frunze, Moscow, USSR. technology improves, the collection of oceanic data from outer space is of increasing importance in marine scientific research.

The adoption of the 1982 Convention’ has considerably restricted the spatial area of application of the principle of freedom of marine scientific research. The 1982 Convention has proclaimed the jurisdiction of coastal states with regard to marine scientific research in the 200-mile exclusive economic zone (EEZ) and established a consent regime for such research carried on by research vessels and at installations. In accordance with international law, however, scientific research in marine areas under the jurisdiction of coastal states by using remote sensing from outer space continues to be governed by the principle of the freedom of outer space. Of major importance for the further development of the legal regime of marine remote sensing are the Principles Relating to Remote Sensing of the Earth from Space drafted by the United Nations Outer Space Committee’ and adopted by the United Nations General Assembly in 1986.’

This article shows the importance of remote sensing in the Oceans through the use of space technology, discusses the results of negotiations concerning marine scientific research by satellite at UNCLOS III, and analyses the rules of international law and the Principles Relating to Remote Sensing of the Earth from Space as applied to marine areas.

Remote sensing of the oceans using space technology

Remote sensing from space means the study of the characteristics of objects and phenomena on the surface of the Earth by means of sensors placed on orbiting spacecraft. The Principles Relating to Remote Sensing define ‘remote sensing’ as the sensing of the Earth’s surface from space by making use of the properties of electromagnetic waves

‘UN Dot A/Conf 62/122, 1982. *UN Dot A/41/20, 1986, pp 24-26. 3UN Dot AlRes 41/65, 1986.

emitted, reflected or diffracted by the sensed objects, inter ah, for the purpose of improving natural resources management and the protection of the environment (Principle 1).

0308-597X/88/030247-09$03.00 0 1988 Butterworth & Co (Publishers) Ltd 247

Space rechnology and marine scien/ific research

“Ocean Science for the Year 2000, Inter- governmental Oceanographic Commis- sion, Paris, 1984, p 36. %putniki-Okean’, Izvestiia, 2 November 1979. ‘/bid; and J.R. Apel, ‘Past, present and future capabilities of Satellites relative to the needs of ocean sciences’, The Import- ance and Application of Satellite and Re- motely Sensed Data to Oceanography, Paris, 1978, p 39. zgdcit, Ref 5.

‘Technology and Oceanography. An Assessment of Federal Technologies for Oceanographic Research and Monitoring, Washington, DC, US Congress, Office of Technology Assessment, 1981, p 8. ‘she services of research vessels are still necessary, for example, to provide surface truth and calibration measurements. Op tit, Ref 4, pp 26-27; and Apel, op tit, Ref 6, P 7. “B.A. Nelepo, ‘Remote sensing of the ocean in the USSR’, op tit, Ref 6, p 42. “/bid p 42; and ‘Okno na Okean’, Izves- tiia, 18 January 1984. 13Pravda, 2 November 1979. 14L.A. Vedeshin, ‘Socialist countries’ cooperation in implementing comprehensive projects in the area of remote sensing’, Proceedings of Scientific Readings on Aeronautics. International Scientific Coop- eration and Legal Aspects of Space Ex- ploration, Moscow, 1986, p 28 (in Rus- sian). 150p tit, Ref 9, p 98. ‘?Status of US Marine Research’. Hearing before the Subcommittee on Oceanogra- phy of the Committee on Merchant Marine and Fisheries, US Congress, House of Representatives, 98th Congress, 2nd session, 1985, p 182 (Letter from D.J. Barker President, the Joint Oceanographic Institu- tions, Inc). See also ‘NASA’s long-range plans’, Hearing before the Subcommittee on Space Science and Application of the Committee on Science and Technoloov. US Congress, House of Representatives, 99th Conaress. 1 st session, 1986. DP 132- 133 (Statement of B.I. Edetson, Associate Administrator for Office of Space Science and Applications, NASA). 17Law of the Sea, Report of the Secretary General, UN Dot A/41/742, 1986, p 22. “See the Statement of the representative of Japan in the UN Committee on Outer Space (COPUOS), UN Dot A/AC. 105/SR 283, 1986, p 5; and Izvestiia, 20 Febuary 1987.

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Experience indicates that Earth satellites can provide unique scientific information about the marine environment. Special oceanographic satellites can, for instance, measure sea surface temperature, determine the directions and distribution of surface winds and waves, and map the distribution of sea ice and concentrations of surface chlorophyi.4 As space oceanic observations become more effective, marine sensing data will be of increasing significance both for the fundamental marine sciences and various uses of the sea, specifically, shipping and fisheries. Thus, information about surface winds, storm areas, and ice conditions regularly received from satellites is of significant value for shiprouting and off-shore operations.’ Chlorophyl data are valuable for the study of the biological productivity in the sea.6 Such a study is of crucial importance to scientifically sound fisheries management. Remote sensing of coastal waters can help identify promising oil and gas areas.’ Satellite data are important for marine pollution control, in particular, for detecting surface oil spreads.”

Although remote sensing capabilities are restricted to shallow depths, they provide a unique opportunity to conduct continuous large-scale observations of oceanic surface at any point of the globe. Specialists point out that certain surface phenomena related to large-scale ocean processes can be effectively investigated only by means of space technology.” Although in most cases the use of satellites does not reduce the need for marine research by traditional oceanographic methods,‘” the development of marine remote sensing leads to a more rational combination of research vessels and satellites investigating, on the one hand, limited areas at all depths, and, conducting on the other hand, global monitoring of the ocean surface.”

The growing importance of marine remote sensing for the development of the marine sciences and uses of the sea explains the interest of various states in the use of space technology for the collection of oceanic data. The USSR conducts marine remote sensing via manned orbital stations and satellites of the ‘Cosmos’ series.12 Much attention is focused on cooperation in this sphere with other socialist countries. For example, within the framework of the ‘Intercosmos’ Programme a special satellite (‘Intercosmos-20’) has been put into orbit to study oceanic processes.‘” The socialist countries have approved a special programme of experiments to investigate the world ocean by remote sensing methods for 1986--1990.‘4

As for industrialized Western countries, the USA launched its first oceanographic satellite SEASAT back in 1978. The satellite played an important role in developing space oceanographic techniques. ls Various federal agencies have designed new programmes based on satellites developing remote sensing capabilities. The US Navy and NASA plan to launch new satellites to measure winds, currents, and biological productivity of the ocean (such as the Navy Remote Ocean Sensing Satellite - NROSS). ”

A remote sensing satellite with high spatial resolution (SPOT-l) was launched by France in late 1985. For the use of its remote sensing data in marine areas French scientists have developed and tested an improved method of locating sea-mounts. In his Report on the Law of the Sea the United Nations Secretary General pointed out that this’is of interest for both geological mapping and fisheries resources assessment.”

Japan launched its first remote sensing satellite (MOS-1, the Marine Observation Satellite) for world ocean explorations in February 1987.”

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‘?See the Statement of the representative of FAO in COPUOS, UN Dot A/AC 105/PV 150, 1983, p 27. 2oOp cif, Ref 17, pp 22-23. 2’Article 2(l) and Article 49. “In resp&i of the territorial sea this is directiy specified in Article 245. 23Article 246(2). 24Article 246(5). ‘5Article 248. “Article 249. *‘Article 87( 1) and Article 257. 28Article 256. ‘9Article 240. 30Article 242 and Article 244.

Expanding remote sensing oceanographic activities are accompanied

by broadening international cooperation in the use of marine remote sensing data at both global and regional levels. Thus, the Food and Agricultural Organization has initiated pilot studies on the use of marine remote sensing data for fisheries to help assess the marine environment. ” The importance of regional cooperation in the use of marine remote sensing data was emphasized for instance by the United Nations Regional Meeting of Experts on Space Technology Application in the Indian Ocean Region (1986). The meeting called, among other things, for cooperation in the application of marine remote sensing in EEZ exploration, in particular, to the nearshore and coastal biological and geological parameters, such as synomptic measurements of water, wind, wave heights and currents, and upwelling areas, and surveys of alternate protein sources.*”

Existing regime of marine scientific research

In contemporary international law the regime of marine scientific research is determined by the status of the marine areas where it is conducted. In areas under the sovereignty of coastal states, marine scientific research can be carried out only with the express consent of the respective coastal state. In granting its consent for marine scientific research in internal waters, archipelagic waters, and the territorial sea, which according to the 1982 Convention are under the sovereignty of a coastal state, *’ that state can lay down any conditions.**

In marine areas under the jurisdiction of coastal states, marine scientific research is also conducted only with their consent. In defining the consent regime for marine scientific research in the EEZ and the continental shelf23 the 1982 Convention provides that the coastal state may in its discretion withhold its consent to the conduct of a marine scientific research project if that project is of direct significance for the exploration of natural resources, whether living or non-living.24 States which intend to undertake marine scientific research in an area under the jurisdiction of a coastal state provide that state with a full description of the project in advance.*’ When undertaking marine scientific research in these areas states must comply with a number of conditions, in particular: ensure the right of the coastal state to participate in the marine scientific research project and provide it with the final results and conclusions after the completion of research, and assessment of all relevant data and information. The coastal state may require prior agreement for making internationally available the research results of a project of direct significance for the exploration and exploitation of natural resources.2h

In accordance with the 1982 Convention, which in this regard confirms the generally recognized rules of international law, freedom of scientific research can be exercised only on the high seas2’ and in the international seabed area.*’ In this case states are obligated only to follow some general principles. Thus, there are requirements to conduct marine scientific research exclusively for peaceful purposes,2” to promote international cooperation in this area, to disseminate scientific data and information, and to promote the transfer of knowledge resulting from marine scientific research.“’

The consent regime relating to the conduct of marine scientific research in the vast areas under coastal state jurisdiction (approximately

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Space technology and marine scienrific reseurch

31 Third United Nations Conference on the Law of the Sea, Official Records (UN- CLOS), Vol II, No V, p 342. %N Dot A/Conf 62/C 3/L 13 - UNCLOS, Vol Ill, No V, p 254. 33UN Dot AXonf 62/C 3/L 17 - UNCLOS, Vol III, No V, pp 263 ff. ‘%lN Dot AiConf 62/C 3/L 13IRev 2 - UNCLOS, Vol IV, No V, p 199. %ee the Statements of the representatives of France (UNCLOS, Vol iv, No V, p 106) and Poland (UNCLOS, Vol IV, No V, p 108). ?See the Statement of the representative of Poland (UNCLOS, Vol IV, No V, p. 108). See also statements by representatives of Switzerland (ibid, p 109) and Sweden (ibid, p 110).

40% of the oceans) resulted from long and complicated negotiations at UNCLOS III. The results were influenced by the interest of the overwhelming majority of states, mostly developing, in establishing such a regime that would ensure coastal states’ control over the conduct of research to protect their economic and other interests in coastal areas.

A noteworthy feature of the Conference negotiations on marine scientific research was the fact that the developing countries sought to apply the consent regime not only to research conducted directly in the marine environment, but also to marine research utilizing space technology. These countries feared that remote sensing satellites would be used instead of research vessels to evade, as the Mexican representative put it, ‘the requirements laid down by the coastal state concerning the marine area under its sovereignty or jurisdiction’.”

The first formal proposal for the regulation of marine scientific research representing the consensus of the Group of 77 was submitted by Colombia.“* It provided that ‘marine scientific research in marine areas under national jurisdiction shall not be conducted without the explicit consent of the coastal state. States conducting scientific research should disclose the nature and the objective of the research, as well as the means to be used, including satellites’. States were obliged to give full information regarding the equipment to be employed, including ‘remote sensing devices operating in the atmosphere or beyond’.

This proposal encountered serious opposition. Although one of the alternate texts on marine scientific research agreed on at an informal meeting during the second session of the Conference fully reflected the Colombian proposal, the other text stipulated that the provisions concerning the requirement of consent of the coastal state was ‘not intended to apply to marine scientific research conducted by means of satellites, on which other provisions may be required, for example, regarding the acquisition and dissemination of data and the transfer of technology’.3”

During the third session of the Conference, Iraq submitted the revised draft articles on scientific research again representing the consensus of the Group of 77. 34 The draft provided for the explicit consent of the coastal state to the conduct of scientific research in marine areas under its jurisdiction and included a special article on research conducted by means of satellites. The article contained a statement of principle to the effect that in the opinion of the Group of 77 certain scientific research activities which are not carried out directly in the marine environment should be subject to regulation by the coastal state. The revised draft articles mentioned that the Group of 77 ‘agreed to draw up appropriate provisions on activities carried out by satellites, remote sensing devices or other means which do not operate in the marine environment’ (Article 6 Item 2(b)).

The developing countries’ position in favour of applying the consent regime to all kinds of marine scientific research, especially utilizing space technology, was not supported by the Conference. A number of delegations characterized it as a departure from the term of reference of the Conference.‘” In their opinion, research activities of satellites should be dealt with by a body having appropriate competence in that area, namely, by the Legal Subcommittee of the UN Committee on Outer Space.‘”

As the result, the developing countries’ proposals had not been

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Space fechnology and marine scienrific reseurch

included either in the Informal Single Negotiating Text, or the subsequent texts and the Draft Convention. Part XIII of the 1982 Convention dealing with marine scientific research makes no mention of satellites; it mentions only research vessels and other equipment”’ and scientific research installations in the marine environment.“s The specific provisions of the 1982 Convention concerning marine scientific research indicate that the consent regime envisaged by the Convention relates only to scientific research conducted directly in the marine environment. For instance, Article 246 of the 1982 Convention providing for the right of coastal states to regulate marine scientific research refers to research in the exclusive economic zone and on the continental shelf. Thus Article 246 defines the spatial limits of the coastal state’s authority in regulating various kinds of research of the

%ee, for example, Articles 248 and 249. marine environment, excluding research conducted by means of %ee Articles 258-262. satellites.39 3gAs regards marine remote sensing from aircraft, there are qrounds for the assumo- tion that aircraft employed for conducting marine scientific research in the airsoace

Relevant international law over the exclusive economic zone’ are subject to coastal state control on the same footing as vessels. It is usually asserted that because Article 58 of the 1982 Convention stipulates that the high seas freedom of overflight applies ‘in the exclusive economic zone’, the airspace over the economic zone constitutes part of the zone. Therefore, the marine scientific research provisions of the Convention would apply to research conducted by aircraft notwithstanding the fact that in the entire Part XIII of the 1982 Convention there is no reference to aircraft. See A.H.A. Soons Marine Scientific Research and the Law of the Sea, The Hague, 1982, p 177. This interpretation seems to be supported by the practice of states which sometimes includes in legislation concerning marine scientific research in the economic zones references to aircraft. The Soviet statute on the conduct of marine scientific research in the economic zone of the USSR (see SP SSSR (1986) No 4, Item 22) stipulates that consent is required for any marine research, whether by vessels and other seafaring craft, submarines, or aircraft (Article 3). Treaty on Principles Governing the Acti- vities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967, UNTS v 610, p 205. 41Article 1. “‘See. for examole. the statements of the

Contemporary international law contains no special rules governing the activities of states in the remote sensing of the Earth, including marine areas. At the same time it recognizes the freedom of remote sensing of the Earth’s surface, including territories and marine areas under the jurisdiction of coastal states by means of space technology. The Outer Space Treaty4” lays down in Article 1 that outer space ‘shall be free for exploration and use by all states’ According to the Treaty there ‘shall be freedom of scientific investigation in outer space’.41 Although in the past some states questioned the applicability of these basic principles of space law to remote sensing of the Earth,42 nowadays it is generally recognized that the freedom of use and investigation of outer space includes the right to carry out remote sensing of any part of the Earth’s surface. From this point of view, the freedom of scientific investigation in outer space implies that there is freedom not only to investigate outer space as such, but also the surface of the Earth if such an investigation is carried out in outer space by means of space technology. The practices of states and relevant customary law4” also support the legality of freedom of remote sensing of the Earth, including marine areas.

Because the remote sensing of the ocean involves the use of outer space under the Outer Space Treaty, the states engaged in this activity are bound by several general provisions related, specifically, to the promotion of international cooperation in that area. Remote sensing activities should be carried out ‘for the benefit and in the interests of all countries irrespective of their degree of economic and scientific development’.44 States carrying out remote sensing programmes should pay due regard to the interests of other states.45 They should also inform

representatives of Mexico (UN Dot A/AC 105/C 2SR 223, 1974, p 122); and Brazil

the UN Secretary General, as well as the public and the international

(UN Dot A/AC 105/C 2/W 223, 1974, scientific community, to the greatest extent feasible and practicable, of

pp 123-l 24). the nature, conduct, locations and results of such activities.46 43V S Vereshchetin and G.M. Danilenko ‘Custom as a source of international law oi outer space’, Journal of Space Law, Vol XIII, 1985, pp 29-31.

Principles of remote sensing

44Article 1. 45Article 9.

The Principles Relating to Remote Sensing of the Earth from Space

46Article 11; see also Convention on Reg- adopted in 1986 recognize the right of states to freely conduct remote

istration of Obiects Launched into Outer sensing of the Earth, including foreign territories and marine areas Space, UN Dot A/Res 3235, 1974. under the jurisdiction of coastal states by means of space technology.


47According to Principle I the term ‘primary data’ means ‘those raw data that are acquired by remote sensors borne by a space object and that are transmi~ed or delivered to the ground from space by telemetry in the form of electromagnetic signals, by photographic film, magnetic tape or any other means’. 48According to Principle I the term ‘processed data’ means ‘the products resulting from the processing of the primary data needed in order to make such data us- able’. 4QAccording to Principle I the term ‘analysed information’ means ‘the information resulting from the interpretation of processed data, inputs of data and knowledge from other sources’. 50According to Principle I the term ‘remote sensing activities’ means ‘the operation of remote sensing space systems, primary data collection and storage stations, and activities in processing, interpreting and disseminating the processed data’.

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This follows not only from the confirmed applicability of the Outer Space Treaty to remote sensing activities (Principles III and IV), but also from the fact that the Principles do not lay down any consent requirement from the sensed states.

The 1986 Principles impose on the states a number of general political obligations to extend international cooperation in remote sensing activities irrespective of whether they are conducted with regard to the land or ocean surface of the Earth. In particular, states carrying out remote sensing activities shall make available to other states opportuni- ties for participation therein on equitable and mutually acceptable terms (Principle V). States participating in remote sensing activities shall make available technical assistance to other interested states on mutually agreed terms (Principle VII). The Principles also provide that states carrying out a programme of remote sensing shall inform the UN Secretary General and interested states about these activities (Principle IX). States conducting remote sensing activities bear international responsibility (Principle XIV).

In addition, the 1986 Principles impose on the states certain political obligations relating to the dissemination of primary data,47 processed data,4x and analysed information4’ resulting from remote sensing. Principle XII, a key provision of the document under discussion, stipulates that 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 at reasonable cost. According to the same Principle, ‘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 activities5” on the same basis and terms, taking particularly into account the needs and interests of the developing countries’.

In connection with the proclaimed right of the sensed state to have access to data and information on a non-discriminatory basis the question arises of how to interpret the term ‘territory under its jurisdiction’. Specifically, the question is whether this provision applies to data and information concerning marine areas under the jurisdiction of coastal states, in particular, the EEZ and the continental shelf.

The notion ‘territory under the jurisdiction’ of a sensed state is used only in Principle XII and is not defined in any way. Other provisions of the 1986 Principles concerning the rights of a sensed state use different notions. Thus, Principle IX which obliges the state carrying out a programme of remote sensing to inform the Secretary General and interested states on these activities refers to states ‘affected by the programme’ without specifying whether the programme should involve the territory or the territory and zones of national jurisdiction of a sensed state. Principle XIII, which establishes the obligation of a sensing state to enter into consultation with a sensed state, refers to ‘a state whose territory is sensed’.

Because the provisions of Principles XII and XIII are closely inter-related, there is ground for the assumption that in the context of the 1986 Principles the terms ‘territory under the jurisdiction’ of a sensed state and ‘territory’ of a sensed state are viewed as having the same meaning. In contemporary international law the term ‘jurisdiction’ can have various connotations. Consequently, it may in principle be used to mean full jurisdiction or sovereignty.

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“It should be pointed out that the only legally binding ~multilateral instrument in this field, the Convention on the Transfer and Use of Data of the Remote Sensing of the Earth adopted by a group of socialist countries (UN Dot A/33/162, 1978), has similar purposes. Although, according to the Convention, the term ‘remote sensing of the Earth from outer space’ includes observations and measurements of the ‘ocean’ (Article l), the Convention reg- ulates the dissemination of certain primary data and information concerning only the territories and respective natural resources of participating states (Articles 4 and 5). “See Articles 56 and 77. =UN Dot A/C l/l 047, 1974. -UN Dot WC/RS, 1981MIP 2 - UN Dot A/AC 105/288, Annex I, 1981. =UN Dot WGIRS, 1984MIP I; UN Dot A/AC 1051133, Annex I, 1984, pp 19-20. -%JN Dot A/AC 105/C 2/L 99 - UN Dot A/AC 1051133, Annex IV, 1974.

Analysis of the provisions of the 1986 Principles indicates that in the first place they seek to ensure the interests of states stemming from territorial sovereignty.5’ According to Principle IV, remote sensing activities ‘shall not be conducted in a manner detrimental to the legitimate rights and interests of the sensed state’. In specifying this requirement, Principle IV lays down that remote sensing 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’. The sovereignty of states, however, does not extend, for example, to the natural resources of EEZs and continental shelves where the coastal states are known to exercise only limited functional jurisdiction. Under the 1982 Convention, in the EEZ and over the continental shelf states exercise only sovereign rights’* which neither by their content, nor by their nature are identical with the concept of sovereignty or ownership.

Analysis of the preparatory work for the 1986 Principles gives no clear explanation for the use of varying terms in Principles XII and XIII; nor does it explain the meaning of the term ‘territory under the jurisdiction’ of a sensed state. During the negotiations on the principles of remote sensing in the UN Committee on Outer Space, a number of states sought to include in the proposed consent or notification regime the remote sensing activities affecting marine areas under the jurisdiction of the sensed states. For example, the joint draft articles on remote sensing submitted by Argentina and Brazil”” provided that the remote sensing of natural resources belonging to other states, including the resources ‘located in maritime areas under national jurisdiction’, should be conducted only with the consent of the sensed state. The sponsors of the draft articles proposed that the states carrying out remote sensing of ‘maritime areas under the jurisdiction’ of the sensed state should grant the sensed state full and unrestricted access to all data obtained through remote sensing. The data on the resources of the sensed state, including the resources of the maritime areas under its jurisdiction, were to be disseminated only with the express authorization of the sensed

state. The Draft Principles Relating to Remote Sensing submitted by

Mexico54 provided that a state which intended to carry out programmes for remote sensing of ‘the territory, the territorial sea or maritime areas under the jurisdiction’ of the sensed state should give advance notification to that state. The sensing states were obliged to provide states which are subject to remote sensing with the preliminary information and final results and conclusions relating to the natural resources of ‘the territorial sea and maritime areas under the jurisdiction of the sensed state’. Information regarding the natural resources of the sensed state should be disseminated only with its approval.

The working paper submitted by Chile”” provided that a sensed state should have timely and non-discriminatory access to data concerning its ‘territorial sea and maritime areas under its jurisdiction’.

In the course of negotiations proposals were made to include in the text of the Principles under discussion provisions concerning remote sensing activities in areas outside national jurisdiction. For instance, the joint proposal by Argentina and Brazil provided for the right of all states to participate in activities of remote sensing of natural resources of ‘maritime areas outside national sovereignty or jurisdiction’. The working paper submitted by the USSR and France’” read that all states

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Space technology and marine scienlific research

=UN Dot WGIRS, 1982WP8; UN Dot WG/RS, 1982/WP 9; UN Dot WGIRS, 1982AMP 10 - UN Dot A/AC 105/305, Annex I, 1982. ?JN Dot WGIRS, 1982/WP II; and ibid. ?JN Dot WG/RS, 1982/WP 13; and ibid. 6oFor example, in his comments on the working document submitted by Greece in 1982 the representative of Greece stated that the phrase ‘territories under the jurisdiction’ of the sensed state was used in place of the reference to the ‘territory’ of the sensed state in order to ‘encompass all the areas which came within a state’s jurisdiction under international law’, UN Dot A/AC 105/C 2lSR 233, 1983, p 10. “UN Dot A/AC 105/C 2/SR 386, 1983,

P 3. 62UN Dot A/AC 105/305, Annex I, 1982, p 4; see also Report of the Chairman of the Workina Group for 1984, UN Dot A/AC 105/377, Annex I, 1984, p II. 63UN Dot A/AC 105/218. Annex Ill, 1978. “%N Dot A/AC 105/352, Annex I, 1985, pp 14, 21-24. ?JN Dot A/41/20, 1986, pp 12, 24-26. ‘=UN Dot A/AC 105/C 2/SR, 438, 1986, p 4 (translation from the Russian record by the author). 67See, for example, the Statements of the representatives of Nigeria, UN Dot A/AC 105/C 2/SR 440, 1986, p 4 and Cuba, UN Dot A/AC 105/C 2/SR 445, 1986, p 3. @%N Dot A/AC 105/C 2/SR 449, 1986, pp 2-3; and UN Dot A/AC 105/SR 293, 1986, p 3.

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were entitled on equal and mutually acceptable terms to receive data resulting from activities in the remote sensing of ‘areas situated outside the national jurisdiction of any state’.

The term ‘territory under the jurisdiction’ of the sensed state was extensively used for the first time in 1982 in a series of working papers submitted by various states to the Working Group on Remote Sensing of the Legal Sub-Committee of the UN Committee on Outer Space. This term was used in three working documents concerning the wording of Principle XII submitted by the USSR” and in the working documents submitted by Brazil”” and Greece.‘Y Although some of the sponsors of these documents thought that the term ‘territory under the jurisdiction’ of the sensed state was somewhat broader than the term ‘territory’,h” others seem to have supported the view that they were identical. The working paper submitted by the USSR used both terms. While commenting on the working paper submitted by his country in 1982 in which the term ‘territory under the jurisdiction’ of the sensed state was used, the Brazilian delegate referred to ‘the territory’ of the sensed state. ‘r In his report on discussions concerning the working papers submitted in 1982 the Chairman of the Working Group on remote sensing said that ‘there was agreement that in principle sensing states should provide a sensed state with timely and non-discriminatory access to primary data concerning its territory’.“*

Although in the course of negotiations many of the proposals submitted by various states contained specific reference to remote sensing of maritime areas under the jurisdiction of the sensed states the draft principles on remote sensing ever since they were originally formulated in 1978h3 and up to 1985 always referred only to obligations concerning the ‘territory’ of the sensed state. In 198.5, after informal consultations, the Chairman of the Working Group on remote sensing revised the text of the Principles that his group was drafting and presented a working document on principles relating to remote sensing containing new formulations of a number of principles.64 Virtually unamended, this document was later approved by UN Committee on Outer Space.@ In the re-drafted text of Principle XII the notion ‘territory under the jurisdiction’ of the sensed state was substituted for the original ‘territory’ of the sensed state. It is not clear from the preparatory work whether the substitution was made for editorial reasons or with a view to extending the sphere of relevant obligations. In subsequent discussions both phrases were used interchangeably. For example, in his comments on Principle XII the Polish representative stated: ‘a state whose territory is sensed should have access to the primary data concerning the territory under its jurisdiction on a non-discriminatory basis’.66 In this context other states also used the term ‘territory’.67 When commenting on the applicability of the Principles to national activities relating to remote sensing, the Soviet representative mentioned only the sensing of ‘territories of foreign states’ and ‘territories not under any jurisdiction’.68 He omitted the third class of territories - those under the jurisdiction of various states.

The interpretation of Principle XII of the 1986 Principles relating to remote sensing of the Earth from space will largely depend on the subsequent practices of states. Agreement on a more clear-cut definition of the notions used will have to be reached if further work is undertaken on remote sensing with a view to formulate a relevant binding international agreement.



Conclusion

The growing effectiveness of scientific investigations of the world ocean by utilizing space technology is leading to an enhanced role for space technology in marine scientific research. Attempts to extend the consent regime to the conduct of marine research utilizing space technology have failed. International law and the 1986 Principles recognize the legality of free remote sensing from outer space of foreign territories, including internal waters, archipelagic waters, and the territorial sea. The 1986 Principles impose on the states which carry out remote sensing of any maritime areas a number of obligations of a general character; specifically, to promote international cooperation. They also impose an obligation to ensure access of the sensed state to the primary and processed data and the analysed information concerning the territory under its jurisdiction on a non-discriminatory basis and reasonable cost terms, particularly taking into account the needs and interests of the developing countries. In the event of a narrow interpretation of the term ‘territory under jurisdiction’, the sensing states shall provide such access only to the data and information concerning the internal waters, archipelagic waters, and the territorial sea of the sensed state. In the case of a broad interpretation this obligation will also include data concerning any other maritime areas which come within a coastal state’s jurisdiction under international law.


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Space technology and marine scientific research