Satellite Data in International Law

The use of data acquired through earth observation satellites has become commonplace. The use of satellite data has even expanded as an extremely useful tool to implement international law since it provides factual, relevant and up-to-date information. Further technological developments will steadily increase the range of data which can be collected through Earth Observation and further enhance its accuracy. Therefore, satellite data can be used to monitor compliance with obligations contained within international agreements or to resolve disputes before an international court. However, the use of satellite data is not without problems. What issues are being faced before satellite data can be used to monitor international agreements?

International agreements

Satellite data is currently used in monitoring international agreements. For instance, the Globwetland projects, funded by European Space Agency (ESA), support the Ramsar Convention on the conservation of wetlands and waterfowl through the use of satellite data. Globwetland I and Globwetland II demonstrated the potential of satellite data to monitor wetlands. The latest project, Globwetland Africa, aims to assist African States to fulfil their obligations and commitments towards the Ramsar Convention by providing maps which, inter alia, identify and delineate wetland areas, water cycle regime monitoring, and map waterfowl habitats.

The current use of satellite data, however, has not been laid down in the international agreements. Nevertheless, the obvious benefit provided by satellite data calls for specific provisions detailing the use of space-based data to monitor international agreements. Although it has not yet entered into force, the Comprehensive Nuclear-Test-Ban Treaty (CTBT) explicitly states in Article IV paragraph 11 that satellite monitoring should be considered and examined as a means for verification. Such provisions could also be included in current or new international agreements which would benefit from the use of satellite data to verify whether the State Parties comply with the obligations contained therein. Examples would be the monitoring of the emissions with respect to the U.N. Framework–Convention on Climate Change (UNFCCC) Paris Agreement or the monitoring of compliance with provisions under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).

International Court of Justice

Further satellite data is used as evidence in the proceedings of the International Court of Justice (ICJ) to aid the implementation of agreed rules of international law.

In the Territorial and Maritime Dispute between Nicaragua and Honduras case, satellite imagery was used by Honduras to show that islands in the river mouth of the Rio Coco are formed due to sediment, which assisted in establishing the equidistance line to set the territorial sea of the two countries.

In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case both parties used satellite data in the proceedings to present support for their claims on disputed islands.

Satellite data was used to get more accurate information on the sea-level and thereby establish whether the ‘islands’ should and could be considered as actual islands or sand banks.

Finally, satellite data was used in the Certain Activities Carried Out by Nicaragua in the Border Area case by Nicaragua to prove the existence of the ‘caño’, or channel, by using satellite imagery from 1961 in which the caño was visible. Costa Rica contested the clarity of the satellite imagery because of thick vegetation, while producing its own satellite image from 2010 which would rule out the existence of a channel. Importantly, the ICJ concluded that the lack of clarity in the satellite imagery means that the satellite imagery could not be used as evidence to prove the existence of the caño.

Certification of space data?

In the South China Sea territorial disputes satellite data has been issued to show China has engaged in large-scale land reclamation activities in seven reefs (Fiery Cross Reef, Johnson South Reef, Cuarteron Reef, Gaven Reef, Hughes Reef, Mischief Reef and Subi Reef) in the disputed Spratly Islands area of the South China Sea. These projects have created seven new artificial land masses in the Spratlys: What China Has Been Building in the South China Sea. Also on the Paracel Islands High-resolution satellite images show that Woody Island, occupied by China since 1956, is undergoing a major expansion of its runway and airport facilities. Eighty kilometers southwest of Woody, on Duncan Island (seized by China from Vietnam in 1974) satellite images show landfill that has increased the size of the island by approximately 50 percent since April 2014.

The aforementioned examples show the usefulness of satellite data, if it can be determined that the data is reliable and accurate.

Provisions in international agreements might be politically contentious as States would be reluctant to accept international organisations or other States monitoring their compliance and would question the integrity of satellite data of other States. There is thus a question of confidence in the data, reliability of the processing of the data, and neutrality of the interpretation of the data. This further leads to a twofold problem. Namely, how to determine the reliability, i.e. how can you verify the integrity of the data, and who will determine what can be considered to be reliable data, i.e. who has the authority on verifying the integrity of the data. A first step to resolve these issues would be to propose a process for the certification of space data in order to allow to further develop and encourage the use of satellite data in the monitoring of international agreements. Initiatives such as Treaty Enforcement Services using Earth Observation and projects such as Globwetland already assist in the development. Such initiatives can serve as the basis from where the use of satellite data can be further extended, processes to verify the data developed, and standards to which satellite data has to adhere to be used to monitor international agreements set out. Nonetheless, satellites can also be used in a less politically charged capacity; by assisting States in adhering to their obligations and commitments. Before this data can be used the necessary technology will have to be developed and validated.

Source: ESPI Policy Brief no. 14