Jurisdiction and control at sea: the case of evidence from satellites

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1 Jurisdiction and control at sea: the case of evidence from satellites Marco Ferrazzani Legal Counsel and Head of the Legal Department, European Space Agency 1 st MARSAFENET Plenary Conference 6 June 2013, Rome

2 Space tools and data: an overview Satellites are very powerful tools Global coverage and fast revisit times Huge information content, few conditions Automated processes or command chains Many uses (e.g. communication, navigation, observation) Distinguish satellite applications In the context of maritime jurisdiction and control, all satellite applications can be relevant: from ship detection to marine environment monitoring and control Focus on Remote Sensing (RS) applications Sentinel-2 Today s RS tools and data Dozens of RS satellites deployed in space Radar and optical (high and medium resolution) imagery especially useful in the context Advantage of Radar: weather-independent monitoring! ESA-EU GMES (Copernicus) European system Envisat ASAR

3 Three illustrations of satellite capacities in the context of maritime jurisdiction and control PIRASAR 2009 (EMSA-ESA): Demonstrate satellite surveillance for vessel monitoring in Gulf of Aden [VHR, Opt., AIS] Long-Range Identification and Tracking System LRIT (IMO): combined information of several systems incl. satellites Oil Spill Detection and Int. Charter Space & Major Disasters: ESA Envisat image of Deepwater Horizon Disaster 2010

4 The international legal environment: Remote Sensing International Space Law: Public International Law applies to space activities including RS Art.1 Outer Space Treaty: Freedom of performing RS activities UN Remote Sensing Principles A/RES/41/65 (freedom to sense, but sensed state shall have data access on non-discriminatory basis) Other documents applicable (excerpt): Various national laws on (the use of) satellite data, e.g. US Land remote Sensing Policy Act 1992, CRSSP 2003, German satellite data act 2007 etc.) ECHR 1953, OECD Privacy guidelines, EU Data Processing Directive 95/46/ EC, INSPIRE Directive 2007/2/EC Ø Remote Sensing by satellites is permitted (and encouraged) under int. law; certain restrictions in national laws Ø Several principles are established on int. level, such as cooperation, promotion of environmental protection, data access on nondiscriminatory basis by sensed state, etc.

5 The international legal environment: maritime law International Maritime Law: United Nations Convention on the Law of the Sea (UNCLOS) 1982 International Maritime Organisation (IMO) Conventions with direct or indirect relevance for (possible) RS applications: COLREGs 1972, SOLAS 1974, INMARSAT Operating Agreement 1976, MARPOL and its Protocol (1973/78, e.i.f. 1983), other instruments regarding oil pollution damage, etc. Territorial sea and other legal zones: Convention regarding the regime of straits 1936, various other bi- or multilateral instruments Maritime Security: Convention for the suppression of unlawful acts against the safety of maritime navigation (SUA) 1988 Statute of the International Tribunal for the Law of the Sea Ø These instruments do not explicitly mention RS, but the scope of application of space based remote sensing and these instruments is partially overlapping

6 MARPOL and its Annex 1 MARPOL - International Convention for the Prevention of Pollution From Ships, 1973 (as modified by the Protocol of 1978): regulations aimed at preventing and minimizing pollution from ships - both accidental pollution and that from routine operations( ). Special Areas with strict controls on operational discharges are included in most Annexes (IMO) Currently 151 state parties, 6 technical annexes Art. 6 MARPOL 1. Parties to the Convention shall co-operate in the detection of violations and the enforcement of the provisions of the present Convention, using all appropriate and practicable measures of detection and environmental monitoring, adequate procedures for reporting and accumulation of evidence. All appropriate and practicable measures Annex 1 MARPOL international duties wherever there are visible traces, investigate facts Use appropriate and practicable measures of detection and environmental monitoring

7 Satellites for jurisdiction and control at sea RS data from space can be used in the context of jurisdiction and control at sea : Category 1: Verification and supervision Maritime Pollution Oil discharges Other waste discharges Environmental parameters monitoring Litigation Evidence Category 2: Territorial regimes, sovereignty and control, resources Maps and zoning, sea level Definition of territorial waters Border and coastal control Marine resources Fishery (also under Category 1) River flow diversion, etc. Category 3: Marine traffic management and safety Vessel Monitoring Systems Safety of Life, Rescue Automated Identification Systems Weather / meteorology Ice monitoring in arctic waters

8 International case law: disputes on delimitation Boundary delimitation: a common international dispute category Satellite images and products (maps) have been repeatedly allowed by international courts and tribunals Example 2: Guyana vs. Suriname (2005) UNCLOS arbitral tribunal Guyana contention of Suriname s low-water line, supported with map and satellite evidence; the tribunal admitted evidence from both parties regarding the accuracy of that line (then rejected Guyana s challenge) Example 1: Bangladesh vs. Myanmar on the Bay of Bengal (2012) Maritime boundary delimitation (coastline configuration) Only ITLOS judgement (case no. 16) using satellite evidence so far Satellite evidence brought forward for arguing the establishment of the provisional equidistance line Ø Satellite data are an established and growing tool in (maritime and land) delimitation cases, admitted by tribunals and courts

9 International case law: environmental pollution Oil spill events, forbidden and sanctioned, are an important and easily satellite-detectable source of marine pollution No international case law existing regarding oil spill + RS evidence However, one example of national case law: Singapore 1996, using an ESA ERS Image as evidence for oil spill pollution European oil spill detection services using satellites: CleanSeaNet (EMSA), KSAT Oil Spill Detection Service (Norway), SeaU, MyOcean-2 Technical issues associated to legal valuation: Difficult to discriminate between oil spills and look-alikes : further information and in-situ verification needed Ø Oil Spill detection is both a) a classic example of the advantages of RS technology and b) regulated by international legal sources Ø No international case yet, but likely to come in the future Prestige disaster, Spain 2002 (ESA Envisat)

10 Possible future areas for satellite evidence Although oil spill / pollution monitoring and boundary disputes are the most often cited cases for the use of satellite data as evidence, others could be: Coastal changes and sea level changes Fish depletion (sea temperature influencing health of maritime populations) Ship identification through high-resolution images (supporting evidence) Meteorological situations in a given moment in remote areas (wind / cloud/ storm / ice) Environmental changes & resources (e.g. Arctic) Maritime illegal traffic, military movements Pipeline supervision, etc. Algae bloom Sea Level Rise Ø Satellite applications will reach out to new areas Ø Satellite data will be increasingly used in case of disputes Ø This raises the question regarding their admissibility as evidence

11 Legal questions (1): validity of evidence from satellites No universal international rules regarding the quality and use of evidence International technical norms + standards leading to reliability of RS data Processing of data necessary (value adding chain); interpretation of images Note: Evidence is always subject to the legal appraisal of a judicial authority; for satellite images one can state that they must be: available + reliable + translated Spanish Supreme Court has recognized validity of RS reports; but: the graphic itself is not the proof. What has value as proof is technical description of it Ø RS satellite data can be and has been used as evidence Ø There are issues with reliability and availability, as well as with interpretation (similarly to other expert evidence) Ø The final decision about admissibility and valuation is with the court

12 Evidence reliability: the case of international (maritime) conventions and tribunals MARPOL: Annex 2 to the Resolution A 152 of the International Maritime Organisation (IMO): All satellite observations must be supported by a signed certificate guaranteeing their authenticity ICC and ITLOS appoint permanent or ad-hoc experts Ref. Art. 50 ICJ Statute, Art ICJ Rules Ref. Art ITLOS Rules (2009): The Tribunal may at any time call upon the parties to produce such evidence or to give such explanations as the Tribunal may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose. (R.77) Ø Could the MARPOL example become a reference case? Ø Even if not, courts and tribunals have their standards how to assess and value evidence and expert information Ø Satellite images are no longer a single case: IT and digital photography in general raise questions of authenticity and reliability

13 Legal questions (2): Individual rights & privacy Two individual rights are of concern in the context: Right to privacy [in Int. Law: ICCPR 1966, Art. 8 ECH ; EU DP Directive] Right to a fair trial [in Int. Law: Art. 10 UDHR, Art. 6 ECHR, etc.] How is the use of satellite images tangent to these rights? Right to Privacy Note: only relevant for specific satellite images (if at all): a) high resolution imagery, b) depicting persons or certain objects of persons; note also: even very high resolution imagery from space shows only anonymous individuals Privacy interference can be justified -> restrictions "in accordance with law" and "necessary in a democratic society (Art. 8 ECHR) National security has priority over specific rules of data access Supervision and control not specific to RS data Right to a fair trial A fair trial includes the possibility that all necessary information is accessible RS data and expertise not available / accessible at any time Call for int. cooperation and information exchange; procedural guarantees

14 ESA cooperation with other international actors The European Space Agency is: deploying newest satellite technology, e.g. for RS undertaking international cooperation in the field Promoting the build-up of technical and legal expertise Examples of cooperation: a) With the European Maritime Safety Agency (EMSA) in the field of operational use of satellite SAR (Synthetic Aperture Radar) Example EMSA service CleanSeaNet b) With the World Bank in the field of comprehensive geospatial information for more informed decision-making (30 projects) Example in marine protection, shipping operations and marine and port control J. Gaviria, Transport Sector Manager, WB: Agencies involved ( ) felt that this information was so unique, so available and so accessible that they really changed their perception on how they can manage the oil pollution and the contamination of the oceans. And this is a revolution. 38 oil spills detected in 5 months in West Indian Ocean

15 Conclusion Satellites are a powerful tool to provide objective information, consistently over time and space, for a wide array of applications Use of space data and technology will increase, also as legal evidence Use of space data and technology shall be encouraged rather than undermined Privacy is an issue (e.g. Internet, Google Earth), less in terms of admissibility of current radar / optical images in proceedings Technology opens new questions -> need for capacity building and inter-disciplinary approaches Maritime community is hugely benefitting from space data and technology