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.”

... contd.