With all eyes recently on spy balloons, we lose sight of a basic question: why send a balloon when you can send a satellite?
It is a settled principle of international law that a State has absolute sovereignty over the airspace above its territory, up to the boundary with outer space (which, however, is not perfectly settled). But no State can claim sovereignty over outer space. And there is no international legal framework governing remote sensing of a State’s territory from satellites in the Earth’s orbit.
Every minute of every day, hundreds of satellites scan, image, and gather data about what is happening on the Earth’s surface. Remotely sensed data can be strikingly accurate and provide numerous scientific, humanitarian, and commercial benefits. Scientists can better understand and fight climate change by surveying bodies of water and natural areas for drought and deforestation at a global scale. Advocates can document and track human rights violations occurring around the world. Companies can use imaging data for business purposes ranging from site selection to natural resource management.
Unsurprisingly, given remote sensing’s myriad potential applications, a new generation of start-ups is investing in ever more sophisticated technology, and as satellite launch costs are decreasing, constellations of small, low-cost satellites, including for remote sensing purposes, are proliferating. The Union of Concerned Scientists has counted over 1,100 active satellites observing Earth, over 550 of which are owned and operated by private entities. The remote sensing market is projected to reach US$4.6 billion by 2026.
This rapidly-expanding sector operates in a fluid patchwork of national norms, soft law guidance, and industry-driven best practice. As both States and private operators navigate an ever-shifting gauntlet of risks – like collisions, national security issues, and State-sponsored cyberattacks – remote sensing makes an obvious case for coordinated legal action on the international plane.
Lack of Specific International Law Norms
No international instrument expressly regulates remote sensing, whether by States or private operators, and the guidance that exists is decades old. The Outer Space Treaty of 1967 (OST) provides that outer space is “free for exploration and use by all States,” and that there is “free access to all areas of celestial bodies,” noting only that State exploration and use should be “in accordance with international law.” The Treaty suggests that States cannot obstruct other States’ remote sensing as long as the sensing does not violate international law.
No other instrument, however, distills what the international law of remote sensing might be. In 1986, the U.N. General Assembly adopted a non-binding set of Principles Relating to the Remote Sensing of the Earth from Outer Space. The Principles provide that remote sensing should respect the “full and permanent sovereignty of all States and peoples over their own wealth and natural resources” and cannot be “detrimental to the legitimate rights and interests of the sensed State.” In addition, the Principles state that all sensed States must be given access to any raw data produced, or information analyzed, with respect to their territory.
How these general principles apply to remote sensing by private operators for commercial purposes is not clear. The Outer Space Treaty mentions that space activities conducted by “non-governmental entities” must be authorized and supervised by “the appropriate State Party to the Treaty.” But in the case of a transnational corporation, multiple States might claim jurisdiction over the activities of the same private company, and those States – as well as the States whose territory is being sensed – might have inconsistent national space laws.
Further, while individual States must authorize private companies to conduct remote sensing, international law is unclear about whether States who perceive the remote sensing of their territories to be an affront to their sovereignty can limit the activity. While the OST says States cannot limit each other’s space activities, the Constitution and Convention of the International Telecommunications Union (ITU) – the U.N. agency responsible for regulating satellite orbits – provides that ITU Member States may “cut off … any [ ] private telecommunications which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency.” Even if an imaging satellite were to be considered “private telecommunications” under the ITU, it can be technologically challenging for a State to identify and cut off “invasive” remote sensing over its territory.
Overlapping National Law Norms
A handful of States have begun to pass their own laws on remote sensing. The result is a sparse patchwork of national laws – mostly passed by States with a burgeoning domestic space industry – which are potentially in tension with one another. For example, could a multinational company operating remote sensing satellites launched from or licensed in several countries be required to share remote sensing data with a sensed State under one national law but prohibited from sharing that same data under another law?
The problem is not entirely theoretical. The Canadian Remote Sensing Space Systems Act, for example, requires that public and private entities obtain a license to operate remote sensing systems from Canada and make the raw data available to the relevant sensed State, regardless of that data’s ultimate use, unless the Minister of Foreign Affairs has placed a particular condition on that data’s dissemination. Germany’s National Data Security Policy for Space-Based Earth Remote Sensing Systems requires satellites obtaining “sensitive” remote sensing data (that is, data with national security implications) to first obtain permission from the government to use or share that data. Under the United States’ framework, in turn, if remotely sensed data collected from a U.S.-licensed private satellite is also available from a non-U.S.-licensed satellite, that data is subject to lenient regulation. Data available only from U.S.-licensed private satellites is subject to stricter limitations, particularly in periods of heightened national security concern. At the same time, data about a State’s territory obtained by a U.S.-licensed remote sensing system must be provided to the sensed State upon its request, unless otherwise prohibited by other licensing conditions (which might include national security carveouts).
National law restrictions on remote sensing may also sit uneasily with principles of sovereignty and equal and free access to space. Some States consider remote sensing an infringement on their national sovereignty or as economically exploitative. India recently enacted new guidelines explicitly prohibiting satellite mapping of or remote sensing data dissemination related to specific “sensitive” locations – like oil and gas, nuclear, or military installations, or intelligence agency infrastructure – and even international borders. Nigeria’s Minerals and Mining Act requires that anyone wishing to “search for or exploit mineral resources in Nigeria,” including through “remote sensing techniques,” first obtain a Reconnaissance Permit.
Recognition of Satellites as Critical Infrastructure
As the data they carry becomes more valuable, commercial satellites also face greater risks of cyberattacks. They may also be caught in the crosshairs of international conflict: SpaceX’s Starlink satellites and Viasat’s KA-SAT network providing broadband internet service to Ukraine have both been subject to cyberattacks since Russia’s invasion of Ukraine in February 2022.
Here, too, there is little international regulation but increasing guidance from civil society groups and State agencies. For example, the Space Information Sharing and Analysis Center is an international membership organization that offers public and private space actors coordinated alerts about cyber incidents across the space sector, as well as trainings and best practices for identifying vulnerabilities, and preparing for and responding to cyber threats and incidents. The National Institute of Standards and Technology, an agency of the U.S. Department of Commerce, has also published guidance on cybersecurity for commercial space actors, including recent specific recommendations for satellite command and control systems. Similarly, the Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security in March 2022 recommended specific risk mitigation measures for satellite operators in response to Russian cyberthreats. And the U.S. Senate on Jan. 13, 2022, introduced the Satellite Cybersecurity Act, which would require the CISA Director to develop a commercial satellite system clearinghouse with cybersecurity resources.
Private satellite operators may be subject to a panoply of data breach laws requiring that they report cyber incidents to various different regulatory bodies exercising jurisdiction over them. In the United States, cyber breach notification obligations vary by state. A new federal law, the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA), requires organizations in certain “critical infrastructure” sectors (which may soon include the commercial space sector) to report substantial cybersecurity incidents to the Department of Homeland Security.
The fragmented legal framework and shifting geopolitical allegiances portend a new era of “space shuttle” diplomacy. Modern initiatives for space governance have tended more towards bilateralism than international consensus. Prominent space-faring States, such as the United States, China, and Russia, are pursuing different space partnerships with other States. For example, the U.S.-led Artemis Accords are a series of bilateral instruments between the United States and individual signatory States – 23 so far – agreeing to certain principles governing lunar use and exploration. Other States, including China and Russia, have called the Artemis Accords too “U.S.-centric” or “space colonialism.”
Countries are also revamping their national space regulatory frameworks in an effort to become the “flag” of choice for private space companies. Space policy and international cooperation is a major focus of the Biden administration. The White House is drafting an Executive Order to streamline the space launch licensing regime in an effort to attract private space investment and recently released its National Low Earth Orbit (LEO) Research and Development Strategy to support tech innovation in LEO activities through public-private partnerships. Moreover, the U.S. Federal Communications Commission has formed a Space Bureau and Office of International Affairs to coordinate space industry regulation across the federal government, including with respect to private-sector satellite licensing. India, New Zealand, and Scotland, among others, are also prioritizing space investment through new policies and incentives.
Regional bodies are also making efforts to keep pace with the commercial space industry. The European Union’s space policy objectives for 2021-2027 focus on boosting space investment in Europe, and the African Union Commission just operationalized the African Space Agency to promote effective governance of space activity from the African continent.
There may still be a silver lining in the cloud of this new space race. Last year, the U.N. convened an “open-ended working group on reducing space threats through norms, rules and principles of responsible behaviours,” which includes representatives from government, the private sector, and civil society. If recent excitement about spy balloons is any indication, it may be high time to prioritize a coherent international framework for remote sensing.