Securing the image of India

Because America monopolises the internet, it is proposed that the ministry of external affairs should hold bilateral discussions with the US and that the ministry of information technology should hold meetings with the concerned private commercial companies. However, success can be met only if all American private satellite operators/ distributors respond to our concerns and the US administration agrees to establish a monitoring and enforcement mechanism. It is also proposed for India to seek an international protocol on security concerns arising out of earth observation satellites and an international agreement to make mandatory prior permission of sensed states.

Proposals are easier made than achieved. Diverse political ideologies and power positions have made consensus in negotiating international law on remote sensing almost impossible. Competing arguments ranging from the policy of ‘prior consent’ to the ‘open sky’ doctrine have informed debates thus far.

Typically, developing countries support the prior consent principle on the ground that remote sensing violates the territorial integrity of a sensed state. The US and western powers, however, support an ‘open sky’.Indeed, the adoption of the 1986 UN Principles Relating to Remote Sensing of the Earth was a hard-earned achievement.

Principle XII is illustrative. It mandates that the “sensed state shall have access to data concerning the territory under its jurisdiction on a non-discriminatory basis and on reasonable terms and conditions”. The primary organising principle of terrestrial law is ‘sovereignty’. Thus the right of a sensed state to control resources within its territory was recognised. The right ‘to explore’ and ‘to use’ outer space is the organising principle of space law. Thus the right of developed countries to acquire imagery by remote sensing was also recognised. But the textual protection for sensed states is negated because they do not have jurisdiction over foreign satellite operators who collect/disseminate remote sensed images of their territories. Moreover, no formal definition of ‘sensed state’ exists, although it is a commonly accepted term in international and US domestic remote sensing law.

Academic analysis, however, lends only cold comfort when national security is at stake. India has articulated its concerns in the 2002 UNCOPUOS Legal Sub-Committee, that the “legitimate rights and interests (of sensed states) are compromised (i) if they have no definite means to know whether their territory is imaged by commercial operator; and (ii) if they have no access to the data of their territories on a non-discriminatory basis soon after they are imaged.”

Historically, by launching the world’s first civilian satellite LANDSAT-1 in 1972 the US signaled that it would not restrict remote sensing exclusively for military purposes. By 1992 US global market dominance in civilian reconnaissance was challenged, prompting President Clinton to enact a law to help private operators/distributors gain future commercial opportunities in the global data market by supporting investment in new technologies and removing unnecessary restrictions on the dissemination of privately gathered data remote sensing systems. Nonetheless, alive to its security needs, American companies are mandated to deploy commercial remote sensing satellites under the ‘Shutter Control’ regime which allows the Department of Commerce legal authority to limit the collection and distribution of commercial satellite imagery when national security, foreign policy interests or international obligations are deemed to be compromised.

India has the largest number of remote sensing satellites for civilian use in the world. Presently, India does not directly market IRS data products to international customers. ‘Unedited’ IRS data products, including high-resolution data, are distributed globally through an international marketing contract between Antarix Corporation Ltd and Space Imaging, USA. Consequently IRS satellite imagery distributed worldwide will remain subject to US law until 2010.

The National Remote Sensing Agency, Hyderabad, serves domestic users. On receipt of an application with fee, IRS data is distributed after ‘sensitive’ topography is first blocked out. Yet it is no secret that competing foreign suppliers are transmitting the same data, edit free, directly to users via the internet. In India one can access sensitive and critical information in complete anonymity.

Given the perceived challenge to national security, from non-state parties and hostile nations, is it worth enquiring whether IRS data marketed through Space Imaging, USA is a possible source of supply of sensitive information about India? Or, if in the absence of law to the contrary, the existing grey market is legal? Or what kind of legal regime will ensure easy access to reliable IRS data without compromising national security? Finally, is the time appropriate for India to revisit its current IRS data distribution policy?

The writer specialises in space and aviation law