The refusal of access to remote sensing data for reasons of national security : a (new) rule of customary international law?

Abstract

The freedom of space exploration, including the ability to conduct remote sensing activities, is widely accepted by states. The general principles set out in the Outer Space Treaty and the Moon Agreement were refined in various United Nations General Assembly Resolutions, including the Remote Sensing Principles (RSP) of 1986. Although the RSP support the basic tenets of the outer space treaties and refers to the provision of access to remote sensing data on non-discriminatory terms, the principles are drafted in general terms and fail to provide direction with regard to issues such as the refusal by states to provide access to remote sensing data. Notwithstanding the fact that the RSP makes no provision for such an exception, various states have included provisions in their national legislation allowing for the refusal of access to high resolution remote sensing data for national security reasons. In order to evaluate whether there is an existing or new rule of customary international law allowing for the refusal of access to remote sensing data on this basis, the state practice and opinio juris of specially affected states were examined. It was found that the conduct of states in this regard constitutes voluntary repeated action for the sake of convenience and is not based on a belief that such conduct is required by a certain rule of law. Accordingly, this study did not find evidence of the requisite state practice and opinio juris to support an existing or new rule of customary international law allowing for the refusal of high resolution remote sensing data for national security reasons. It is argued, however, that this study supports possible emerging state practice in this regard. The terrorist attacks of 9/11 was a Grotian moment and resulted in a fundamental change in the concept of national security and what constitutes a threat to national security. The study shows that states predominantly refer to the threat of terrorism when discussing issues of national security. States are concerned that high resolution remote sensing data can be used for terrorist activities, as this imagery can reveal the precise location of roads, buildings and military structures and allow for more precise weapons delivery. Accordingly, it is submitted that the above events have paved the way for the accelerated development of a new rule of customary international law, namely for states to reserve the right to refuse access to high resolution remote sensing data for national security reasons such as terrorist threats. Customary international law must have the ability to evolve and respond to new developments. Increasing state conduct in this regard points to emerging state practice which may in future be supported by the requisite opinio juris to create a new rule of customary international law.