NOTE FOR DR. STEININGER, CIA FROM (Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76B00734R000200290010-8
• Release Decision: RIPPUB
• Original Classification: T
• Document Page Count: 52
• Document Creation Date: December 15, 2016
• Document Release Date: August 27, 2003
• Sequence Number: 10
• Publication Date: March 7, 1973
• Content Type: NOTES

THE NRO STAFF
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WASHINGTON, D.C.
NOTE FOR DR. STEININGER, CIA
March 7, 1973
8
This is the new NSSM-72 draft. Please note that the
only common member of the black (156) and white (NSSM 72)
Working Committees concerned with space observation is
Dave Elliot. This paper is extremely insensitive to the
on-going space reconnaissance aspects and the need for
protecting that environment. The way the paper is thrusted
implies that the U.S. must protect its right to observe.
This is, on the surface, the only logical policy. But what
does not come through in the paper, mainly because of the
group working it, is that if the U.S. is willing to pursue
an openly conducted and perhaps intrusive observation
program, this is not analogous to what the U.S. has been
doing covertly. There is a fundamental difference in
telling an0 not telling others what you are doing. I am
afraid that any policy which publicly advocates open obser-
vation on a "right to observe" basis may backlash and
eventually bring about sufficient adverse reaction in the
UN and other forums which would seriously degrade the
reconnaissance program's "right to observe." There appears
to be some urgency now in dove-tailing the real issue in
space observation, i.e., perpetuation of the reconnaissance
environment, with the options brought forth in the draft
NSSM-72. Perhaps NSSM-72 should be held in abeyance until
assurances are had that "black" activities will be protected
by an announced U.S. space policy.
DOS and NRO
review(s) completed.
1 Attachment
NSSM Study
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Washington. D.C. 20520
BUREAU OF INTERNATIONAL SCIENTIFIC
AND TECHNOLOGICAL AFFAIRS
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MEMORANDUM
February 27, 1973
TO ?
? NSSM-72 Committee*
FROM ?
? Herman Pdg.l'ack, Chairman
SUBJECT: NSSM Study of Policy Options Relating to
International Cooperation in Earth Resource
Surveying by Satellite
It is becoming increasingly clear that policy
decisions will be needed soon with .regard to the inter-
national aspects of earth resource surveying. The
attached draft NSSM report outlines the implications
and consequences of a number of possible policy options.
In the interest of bringing.this study to an early
conclusion, I would appreciate receiving by Friday,
March 9, such comments as you may wish to put in writing
at this stage.
I am.also calling a meeting of the NSSM-72 Committee
at 2:00 p.m, Friday, March 16, in Room 7835 of the State
Department, to discuss the attached draft.
?
Attachment:
. .
Draft NSSM-72 Report on
? ERS, with Annex
*NSSM-72 Committee:
NASA - Mr.
Frutkin
Department
of Agriculture
- Dr. Byerly
Department
of Commerce
Mr. Nels Johnson
Department
of Defense
Dr.
Mountain
Department
of Interior
Dr.
Dunover
NSC Staff
NASC - Mr.
CIEP - Dr.
OST - Mr.
AID - Dr.
ACDA - Mr.
- Dr. Elliott
And
Weiss
Lyon
Schweitzer
Henkin
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POLICY OPTIONS RELATING TO INTERNATIONAL COOPERATION
IN EARTH RESOURCE SURVEYING BY SATELLITE
. Introduction
For the purposes of this NSSM report, earth resource
? surveying (ERS) is defined as the acquisition for civil
purposes of information pertaining to the earth's resources
by means of sensors mounted on spaceborne platforms. Surveys
involving aircraft, sounding rockets, balloons or surface
exploration are not considered.
? It is further noted that US policy covering the inter-
national aspects of the experimental period of ERS has been
established, announced and put into practice along lines
described in the Annex to this report. The policy guidelines
analyzed under the various options of this report are there-
fore intended to apply to the operational period of ERS, a
period which will presumably commence during the second half
of the present decade.
More precise definitions of "ERS" and the terms "experi-
mental" and "operational" are given in the Annex to this
report.
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' Objectives of ERS Policy
2.
: Assuming that the present experimental phase of ERS
justifies the hope that this new technology is capable of
producing a very high benefit/cost ratio, it will be the
US objective, in general terms, to establish an operational
ERS satellite system which will be responsive to public
needs and national goals and which will contribute to world
peace, understanding and economic development.
The manner and degree to which this general policy
objective is met will depend in large measure on decisions
which must be made in three inter-related areas:
Dissemination of.operational ERS
information ("Dissemination Options")
-- The organization of operational ERS
activities ("Organization Options")
The extent to which. we should accept
restrictions on acquisition of IRS
information. (Observation Options")
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It will become clear in the discussion which follows
that our choices among the options in these four areas will
not be entirely independent. For example, a restrictive,
US-oriented decision with regard to international
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dissemination of ERS information will certainly increase the
incentives of other nations toward establishing their own
ERS Systems, may intensify the assertion of proprietary
rights over resource information, and may also give rise to
pressures on the US to restrict or forego the 'right to
observe" from outer space.
The February 1973 meeting of the UN Working Group on
ERS demonstrated that world interest and anxiety with regard
to this new technology are still growing. This may lead to
substantial efforts within the next year or two to promote
international understandings on the three topics outlined
just above. The US, on the other hand, will find difficulty
in deciding the degree to which it will be willing to make
concessions to foreign pressures and desires in the absence
of much firmer information on the potential economic value
of ERS during the operational phase. Answers will be needed
quite soon to such questions as: What will be the economic
return to the US of ERS information derived from US territory?
--from international waters? --from foreign territory? What
will be the value to foreign nations of ERS information
gathered from their own territory? --on a global basis? And
what will be the value of ERS information to the LDC's as
related to US foreign aid objectives?
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4.
- Further results from the ERTS and EREP programs combined
with studies of the cost/benefit ratios now being performed
under contract for the Department of Interior and AID should
yield fairly soon at least preliminary estimates of these
parameters. We will, however, need firmer policy guidelines
before all such studies can be completed.
At the present time only the US and, to a lesser extent,
the USSR possess the capabilities and experience to mount
meaningful ERS programs. It is likely that the US lead in
this area will predominate through the 1970's even if other
nations become strongly motivated to establish competing
systems.
Although it is clear that the space segment of any
internationally-sponsored ERS system will for some years
have to depend on the technology and the goodwill of the
advanced space powers, there has been no dearth of proposals
for internationalizing ERS services. Some of these pro-
posals are summarized in a recently-prepared report of the
UN Headquarters Staff (A/AC.105/C.1/WG.4/CRP.7 of December 6,
1972).
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5.
OPTIONS ON DISSEMINATION OF ERS. INFORMATION'
Discussion
During the experimental phase of ERS, NASA has made
specific arrangements to rapid dissemination of data from
ERTS and EREP sensors to about 100 foreign scientific
institutions to assist in cooperative projects related to
ERS satellite imagery. Furthermore, ERTS and EREP space-
acquired data is being made generally available to interested
parties at equitable cost from a clearing house maintained
?by the Department of Interior at Sioux Falls.
? Although these actions, taken together with numerous
official USG expressions of intent that space be of service
to all mankind, may be regarded as precedent-setting, the
USG has no specific commitment governing policy for dissemi-
nation of ERS data during the operational period.
The basic question of whether the international community
should be allowed to exercise a role in the dissemination of
ERS information is analyzed in a later section (Organization
Options) of this report. Prior to addressing the organiza-
tional aspects, it seems useful to consider the implications
and consequences of various dissemination policies which the
US could adopt under the assumption that this function remains
under US national control. Thus all of the following
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Dissemination Options are incompatible with all of the
Organization Options except Organization Option I.
The Dissemination Options are intended to explore two
specific questions:
Whether US policies for dissemination
of ERS data should be restrictive (in the hope of
aiding the US economy) or whether they should be
partially or entirely open (in the interests of
foreign relations), and
-- The extent to which the US should recog-
nize the growing demands from observed nations
for proprietary control over ERS information
derived from their sovereign territory.
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DISSEMINATION OPTION I: No routine dissemination of
operational ERS information will be made outside the US
Government.
Comment: The prohibition against "routine dissemination"
would still permit flexibility in releasing information on
a case-by-case basis to foreign or private American recip-
ients when it can be demonstrated that such releases serve
the national interest.
Advantages:
1. Might improve the US competitive position and
balance of trade by providing assistance to some
sectors of the US economy. For example, the USG
could provide information helpful to US farmers and
commodity markets re sales to countries experiencing
crop failures. Guidance might also be provided to
US firms seeking likely areas for new mineral
explorations.
2. Could prove politically advantageous within the
US by providing another example of substantial
economic returns on the US investment in space.
3. Could still permit provision of services to
other nations, including LDCs, in areas where no
substantial economic loss to the US is involved.
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Disadvantages:
A.. Would generate widespread international diffi-
culties in the UN and other forums and reinforce
those critics who are already asserting that US
interest in space cooperation ceases as soon as
space applications become involved..
2. Could exacerbate foreign fears and anxieties
about US economic strength, and add to the sense
of economic competition between the US and the
rest of the world.
3. Would provide an incentive toward the develop-
ment of foreign launch capabilities and competing
ERS systems.
4. Would intensify assertions of proprietary rights
of nations over their resources information and
challenges to our "right to observe' foreign terri-
tories without permission.
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9.
DISSEMINATION OPTION II: The US should retain exclusive
or riorit use of ERS information in a ver limited number
of cases where the information is of substantial signifi-
cance to the US economy. With these occasional exceptions,
ERS information will be made promptly available to countries
whose territories are involved and, with their consent, to
other countries.
Comment: The types of information which the US withholds or
delays in releasing might be defined in terms of discrete
areas of the earth's surface or, perhaps, in terms of infor-
mation derived through particular types of sensing (e.g.,
infra-red, microwave).
Advantages:
1. ,Would permit the US to satisfy a large share of
the foreign demand for ERS information while accom-
modating the growing foreign demand that ERS data
not be provided to third nations in the absence of
permission from the observed nation and while pro-
tecting the more substantial and vital American
economic interests that may be affected by ERS.
2. To the extent permitted by negative foreign
(
reactions; would provide maximum flexibility durii.g
the period when the value of ERS information, both
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'domestically and internationally, is still being
assessed..
Disadvantages:
1. The possibility that transmission of some ERS
information to observed states will be withheld or
delayed could generate international difficulties
over acquisition and proprietary rights to informa-
tion of a severity close to those resulting from the
choice of Dissemination Option I.
2. Would incur the remaining disadvantages of
Dissemination Option I in direct proportion to the
severity with which we restrict the-flow of infor-
mation.
3. Granting observed nations control over the further
dissemination of ERS information could seriously impede
this process. The clerical/cartographic problems?,
? arising from the constraints imposed by a sizable
number of nations (e.g., in Europe and Central America
? where there are numerous small, contiguous nations),
compounded by disputes over certain boundaries and
? territories (e.g., the Sinai, some of the Pacific
islands) could make it necessary to discontinue all
foreign dissemination of ERS data.
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DISSEMINATION OPTION III: The US will make ERS information
fully available to nations whose territory is involved and,
with their consent, to other nations.
Advantages:
.1. As compared to Dissemination Options I and II, would
go a long way toward allaying anxiety and suspicion that
the US is using ERS information in ways disadvantageous
to the observed nations.
2. Recognizing the proprietary control of ERS informa-
tion by observed nations (with respect to third-country
transfer) might lessen the adverse impact of the ERS
program on nations having near-hostile relations with
their neighbors (e.g., India/Pakistan; Arab States/Israel).
3. Would provide basis for assertion of US control
over international dissemination of ERS information
pertaining to US territory.
4. Could lessen pressures for establishment of
competing ERS systems in Europe and elsewhere, and
might remove part of the incentive of foreign
nations for developing launch capaoilities.
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S. Might enhance the opportunities of US industry
to exploit resources abroad (at the invitation of
the foreign nations) and add to the market for US
business.
Disadvantages:
1. As in Dissemination Option II, granting observed
states control over the further distribution of ERS
information could introduce formidable administrative/-
clerical/cartographic obstacles and might also exacer-
bate international tensions over disputed territories
and borders.
Z. By forsaking the possibility of exclusive or
priority US access to ERS information, could deprive
US of competitive advantage with resulting contribu-
tion to our trade balance. Could generate serious
criticism in Congress and in certain business sectors.
3. Could foreclose, or at least make very difficult,
a later change to a more restrictive policy of the
sort envisaged in Dissemination Options I and II.
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13.
DISSEMINATION OPTION IV: Continue the present practice of
openly disseminating at equitable cost all ERS information.
Advantages:
1. By eliminating constraints arising from proprietary
claims and other causes, would lead to the most rapid
and least costly dissemination of ERS information on
global basis, thus *maximizing benefits of this tech-
nology on world-wide basis.
2. By allaying anxiety and suspicion that ERS infor-
mation is being used for unilateral US economic
advantage, would strengthen our legal position with
regard to acquisition of such information.
3. Could largely eliminate pressures for establishment
of separate ERS systems in Europe and elsewhere, and
might decrease incentives in Europe and Japan for
creating independent launch capabilities.
Disadvantages:
1. If subsequent developments in the operational
application of ERS demonstrate that exclusive or
priority access to this information would lead to
substantial economic and trade advantages to the
US, a change to a more restrictive dissemination
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policy at that time might lead to more serious inter-
national difficulties, both legal and political, than
would be the case if the US had kept open the possi-
bility of restrictions along the lines of Dissemination
Options I, II or III.
2. Failing to heed the growing demand that observed
nations' permission be obtained prior to third
country dissemination might, in some cases, enhance
competition and tensions between nations.
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OPTIONS ON THE ORGANIZATION OF OPERATIONAL ERS SERVICES
Discussion
Since ERS promises to become a global technology affect-
ing--hopefully benefitting--all nations, it is understandable
that there have already been a number of suggestions and pro-
posals as to how the international community might play a
role in its management. A proposal for step-by-step
internationalization of ERS services under UN auspices was
tabled by Argentina before the Legal Subcommittee of UNOSC
in 1970 (Ref: A/AC.105/C.2/L.73).
At the February 1973 meeting of the UN Working Group on
ERS, the US took a tentative and preliminary step toward
internationalization of ERS data dissemination through its
offer to provide, for distribution purposes, a master copy
of data derived from its experimental ERS program to an
international UN facility if one were to be established.
It is believed that this offer was instrumental in calming,
at least temporarily, a widespread unrest and anxiety on the
part of most of the WG representatives with regard to the
dissemination, proprietary and acquisition aspects of ERS.
The ERS system includes three distinguishable parts:
the satellite-borne equipment for data acquisition, the
computers and related equipment for data processing, and
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the facilities for dissemination of imagery and other processed
?ERS information. It is perfectly conceivable that one or more
of these functions operate under international management
while the remainder are under natioaal control. There might,
for example, be an internationally sponsored ERS satellite
which would telemeter data to a variety of national or
- -regional processing and dissemination facilities. Conversely,
the satellite and processing facilities could remain under
US national control while the dissemination function could
be carried out through an international mechanism of the sort
proposed recently to the UN Working Group.
The possible mechanisms for international management of
parts or all of an operational ERS system (e.g., a new UN
agency, an INTELSAT-type consortium) are not considered in
this NSSM report. The Organization Options which follow are
limited to evaluating the consequences of having some, all,
or none of the operational ERS system under international
control.
ORGANIZATION OPTION I: The operational ERS system will
remain entirely under US national control.
Comment: Choice of this option would leave decisions as to
program priorities and objectives, as Iv:A.1 as the dissemina-
tion of particular information, strictly in the hands of
the USG, and would lead quickly to the subordinate question
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of whether the US will encourage, tolerate or discourage ERS
systems sponsored by other nations and by multinational and
international organizations. The US attitude on this matter
would be implemented through the extent to which the USG
will be forthcoming in granting export licenses for ERS
technology and in the provision of launch services.
Advantages:
I. Would prompte.naintenance of US technical
supremacy in this field and would provide ?greater
incentive for US development of new and more
effective ERS techniques than would be the case for
an internationally sponsored system.
2. Would leave the US with maximum flexibility in
shaping the operational ERS system to promote US
economic interests.
3. Might, unless the Soviets become more active,
preserve for a decade or more the present status of
serving as the principal supplier of ERS information
to the world community, particularly to the LDCs.
Disadvantages:
L. Unless accompanied by a forthcoming dissemination
policy along the lines of Dissemination Options III
or IV could sharply intensify international anxiety
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about ERS which would be reflected in strengthened
challenges to our legal position with regard to
acquisition and proprietary rights, and would pro-
vide additional motivation to other nations (e.g.,
Europe, Japan) to develop their own launch
' capabilities and ERS systems.
ORGANIZATION OPTION Develop a national operational
program for the acquisition and processing of ERS data, but
encourage the formation of international machinery for the
dirsemination phase.
Comment: Under this option, the US would presumably retain
responsibility for dissemination of ERS information to US
users, but would transfer to the international mechanism the
responsibility for all dissemination outside the US. In
effect, this option would be in most respects equivalent to
the combination of Organization Option I with either of
Dissemination Options III or IV.
Advantages:
1. By giving the international community a substantive
role in the ERS system would reduce fears that ERS is
serving unilateral US economic interest and might
reinforce our legal position with regard to acquisition
of ERS data.
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2. While still retaining considerable flexibility
in US use of ERS information, could be defended as
consistent with statements of several US presidents
and with both the spirit and letter of the Outer
Space Treaty.
3. Would remove from the US and leave to the inter-
national community the difficult decision on whether
to recognize the proprietary control of observed
nations over ERS information (as discussed in
Dissemination Option III) or whether this assertion
of control should be ignored (Dissemination Option IV).
Disadvantages:
1. Would deprive the US of exclusive or priority
access 'to ERS information acquired outside US territory,
?with possible consequent loss to the US economy and
trade balance.
?
. 2: Would still leave us open to complaints from
abroad that the US facilities for acquisition and
. processing of data are failing to produce quality,
quantity and types of information required by
other nations.
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ORGANIZATION OPTION III: The US would retain Control of the
satellite-borne segment of the operational ERS system as well
as of such _processing and dissemination facilities as are
necessary to service internal US needs. All other processing
and dissemination facilities would be placed under some form
of international control.
Advantages:
1. By providing to the international community a
still greater measure of influence and control than
that implied in Organization Option II could further
- reduce anxieties and reinforce our legal position on
acquisition.
2. Could still give the US, if it wishes, priority
or exclusive access to ERS information pertaining to
US territory.
Disadvantages:
1. Could still leave us subject to the disadvantages
of Organization Option II (loss of priority access to
ERS information from outside the US, and complaints
over services furnished by our ERS satellite).
2. The international community is at present unequipped,
either technologically or organizationally, to undertake
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the task of providing its own data processing services
?.(although this might be accomplished through a Comsat-
:type US corporation working under contract).
ORGANIZATION OPTION IV: All aspects of the operational ERS
service, including those serving the US, will be placed under
some form of international management (possibly a new UN
agency, possibly an INTELSAT-type consortium).
Advantages:
1. Would eliminate, or at least remove from the US to
international forums, all discussions of acquisition
and dissemination practices as well as all complaints
about adequacy of service provided to other nations.
2. Depending on arrangements arrived at for financing
the international ERS service, might relieve the US of
substantial expenditures that would be required under
any of the other Organization Options.
Disadvantages:
1. If, as is quite possible, the international ERS
service is inadequately financed or ineptly managed,
could deprive the US of ERS information badly needed
for both domestic and international purposes.
2. Could sharply reduce R&D efforts aimed at further
improvements in ERS technology.
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TACTICAL OPTIONS ON THE RIGHT TO OBSERVE
The right of any nation to observe the earth from outer
space has never been successfully challenged from the point
of view of international law. This right is consistent with
the OST and with the UN Charter and is essential if satellite
systems having global coverage are to be applied to meteoro-
logical and other purposes.
No matter how great the international pressure, we
cannot consider the surrender of the right to observe as a
supportable option. Our task must therefore focus on
tadtical measures designed to abort international moves
aimed at requiring the permission of states prior to their
being observed.
Until recent months challenges to our right to observe
have been sporadic and low-key, and it had been hoped by US
officials that the problem could be avoided by the simple
expedient of not calling attention to it. At the February
1973 meeting of the UN Working Group on ERS it became
evident, however, that there is widespread international
insistence on the need for developing legal principles
applicable to ERS. Several nations, notably Mexico and
Argentina, called specific attention to the legal aspects
of data acquisition.
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Unless we can adopt tactics which succeed in diluting
these anxieties, it seems quite possible that our determina-
tion to. maintain the "right to observe" will soon be faced
with a serious and widely supported international challenge.
The Observation Options which follow are designed to explore
various possible ways of meeting this objective.
OBSERVATION OPTION I: Accept no restrictions on the
acquisition phase, but seek to alleviate international con-
cerns by proposing certain concessions with regard to
dissemination of ERS information, perhaps along the lines
discussed in Organization Option II or in Dissemination
Option III.
Advantages:
1. The proposals on data dissemination cited above
may be justifiable anyway in terms of their role in
enhancing the utility of ERS on a world-wide basis.
If they are also sufficient to divert heat from the
acquisition issue, the US expenditure in providing
data services to the world community could prove to
be an unusually good investment.
Disadvantages:
1. Concessions on data dissemination may not be
sufficient to the task of defusing the acquisition
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issue, in which case the USG may have to fall back
to the much more restrictive limitations discussed
:in the following Observation Options.
OBSERVATION OPTION II: Accept no legal restrictions on
ERS acquisition, but make a formal policy statement to the
effect that the US would not collect ERS data except at the
invitation of the nations concerned.
Advantages:
1. Would allow us to make separate agreements with
the countries affected concerning the uses to be
made of the information collected, and might put us
in a better bargaining position than would be the
case if others felt we were anxious to carry out ERS
observations of their territory.
Disadvantages:
1. Would impose all of the technical/administrative/-
cartographic obstacles described in Disadvantage 3 to
Dissemination Option II.
2. Could introduce a credibility problem with
countries which doubt our ability or intention to
refrain from observations of their territory.
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3. Might be interpreted by some as a de facto
abandonment of the "right to observe", even though
we specifically deny this, with consequences extend-
ing beyond the ERS program.
OBSERVATION OPTION III: if tactics such as those described
in Observation Options I and II seem unlikely to achieve
the desired resuJt,:--afiandon the ERS program at least as an
overt activity.
Advantages:
1. This Option has nothing to recommend it except as
a move of last resort, all else failing.
Disadvantages:
1. The many advantages, economic and otherwise, which
ERS appears to offer the US and the world community
would be lost for an indefinite -period.
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DRAFT 2/27/73
? ANNEX
to -
NSSM ON INTERNATIONAL COOPERATION
IN EARTH RESOURCE SURVEYING FROM SATELLITES
This Annex provides additional facts and considerations
relevant to the policy options set forth in the NSSM
paper on ERS, particularly with regard to:
?
1, USG Fund Requirements for ERS
2. Definitions
3. Legal Aspects of ERS
4. International Aspects of ERS
Attachment:
Policy Relating to ERTS
and EREP Experiments
(May, 1972).
?
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Total
115
.131
246
- 346
*EPA and Departments of Commerce and Defense
Since a share of NASA's funds will probably be spent for
activities of operational significance, the proportion of
total funding ascribed to the user agencies (e.g. 35% in
FY 76) provides a. lower limit to the operational aspect
of the ERS program.
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*EPA and Departments of Commerce and Defense
Since a share of NASA's funds will probably be spent for
activities of operational significance, the proportion of
total funding ascribed to the user agencies (e.g. 35% in
FY 76) provides a. lower limit to the operational aspect
of the ERS program.
share of NASA's funds will probably be spent for
activities of operational significance, the proportion of
total funding ascribed to the user agencies (e.g. 35% in
FY 76) provides a. lower limit to the operational aspect
of the ERS program.
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2. Definitions
Experimental
The Luerimental phase of the ERS prcgram is defined
as the phase during which the principal goal of ERS activity
is related to such R&D objectives as: the development of
improved equipment and techniques for sensing, telemetering
and data processing; the establishment of a sensor signature
bank for identification of surface phenomena; and the
determination of the types and economic values of informa-
tion requirements which can be met through. ERS.
Operational
During the operational phase of ERS, the principal
goal of ERS activ5ty will be the production of information
required 13:y various users (USG, foreign governments, private
parties) in the fulfillment of these users' missions.
(The UN Working Group on ERS has noted that the defi-
nition of operational as applied to ERS systems is ?a
system resulting from the commitment to supply a space
remote sensing service on a continuous and permanent basis,
-coupled with a commitment by interested users to use such
a service on the same basis.")
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Remote Sensing of the Earth (ERS)
The UN Working Group on ERS has defined ERS as
follows:
... remote sensing of the earth from
space is a methodology to assist in characterizing
' the nature and condition of the natural resources,
natural features and phenomena, and the environment
of the Earth by means of observations and measure-
ments from space platforms. Specifically, at
present, such methods depend upon the emission and
reflection of electromagnetic radiation."
41,
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3.
2. Legal Aspects of ERS
Fifteen years of space activities have, in our view,
? firmljr established ?the "right of innocent passage" of
both manned and unmanned space craft in near-space over
sovereign territories. Although the Chicago.Convention
of 1944 established the principle of complete and exclusive
"sovereignty of every State to the airspace above its
territory and territorial seas, without placing an upper
limit to that sovereignty, the signatories of the Outer
Space Treaty of 1967 renounced any Claim to sovereignty
ov4r outer space. The altitude of the boundary surface
separating national airspace from international outer
space has never been defined, but.it is generally
- accepted as lying somewhere between the highest altitude
at which airplanes can maintain steady flight (about 20
miles) and the lowest altitude at which a spacecraft
can be maintained in orbit (perhaps 80 miles).
ERS satellites in orbit are, therefore, beyond the
territorial jurisdiction of subjacent States.
THE OUTER SPACE TREATY
.The Outer Space Treaty (OST) is phrased in fairly
general terms and makes no specific reference to the
observation of earth from space. The freedom of all
States to use, explore and condutt scientific investiga-
tions in space is asserted, however, by OST as long as
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certain conditions are met. Such activities must be:
-- "for the benefit and in the interests of
all countries." (Article I)
-- "in accordance with international law, including
the Charter of the UN, in the interests of maintaining
international peace and security and promoting inter-
national cooperation and understanding." (Article III)
-- "carried out "with due regard to the corresponding
interests of all other States Parties to the Treaty..."
'(Article IX)
-- publicly reported, as to nature, conduct, locations
and results "to the greatest extent feasible and practi-
cable." (Article XI) .
? The OST also requires signatory States to "bear
international responsibility for national activities in
outer.space...whether such activities are.carried on
I.
? by government agencies or by non-governmental entities..."
? This language, as well as that of the Liability Convention
of 1971, is generally interpreted as applying only to
physical damage, e.g. from reentering spacecraft.
THE "RIGHT TO OBSERVE"
The most basic legal question which might be posed
.with regard to ERS satellites is whether it is permissable
for any State to acquire, without consent, information
relating to the natural resources of other States.
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The United States position that the peaceful observation
of any part of the earth from outer space by any State is
clearly permissible is supported by the 1967 Outer Space
Treaty. That Treaty guarantees that outer space "shall be
free for exploration and use by all States without discrimi-
nation of any kind ... " and that "There shall be freedom of
scientific investigation in outer space." The United States
position is further supported by the precedent of past
practice, in that similar activities have been conducted
without objection for more than a decade by meteorological
satellites and by astronauts and cosmonauts. ERS sensors,
like those aboard previous spacecraft, would be operating in
-,outer space from- beyond national territorial limits. The
United States: has always worked from the premise that an
activity, not expressly prohibited by international law, is
permissible.
It is generally understood that the implementation of an
international agreement prohibiting ERS observations of States
without their consent would pose such formidable obstacles
that it could cause the abandonment of international ERS
activities with consequent loss to all nations. Furthermore,
such a Prohibition would be almost impossible to verify.
The USG position regarding the "right to observe" has not
been formally contested in the context of ERS, largely because
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of the experimental stage of the ERS programs. However, such
"right to observe" has now been seriously questioned as it
bears on :both the acquisition and dissemination phases of
the ERS technology.
During the February 1973 ERS Working Group meeting at the
United Nations a comprehensive framework for future study of a
full range of legal options touching the acquisition and
dissemination phases of ERS was presented and enthusiastically
received. The Soviet Union tabled five principles which inter
alia would affirm a sovereign right of States to control their
own natural resources and information concerning them; estab-
lish an obligation or. ..the part of the sensing State to transmit
information of the sensed State to the latter State under
-mutually acceptable conditions; prohibit the sensing State
from making public or transmitting to a third State information
.Nyegarding the sensed State without the prior consent of the
; - .?
sensed State.
primary and widespread concern underlyingthese legal
initiatives is that remote sensing technology can redound to
the unilateral economic advantage of the launching State and
disrupt commodities markets resulting in grave inequities in
the economic relationship between the States affected.
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PROPRIETARY RIGHTS TO ERS
It appears inevitable that we will soon be engaged in
serious international discussions of the extent to which an
observed State controls the use and dissemination of resources
information derived from its sovereign territory. Facets of
this discussion will include:
-- whether the launching State can provide ERS informa-
tion to third States without the consent of the observed
State,
-- whether the launching State can withhold from the
observed State any ERS information derived from the observed
State's sovereign territory,
-- what restrictions would be acceptable regarding
public dissemination of information likely to affect
commodity or resource markets,
-- what obligations would be acceptable regarding
dissemination of information privately to States concerned
when such information would likely affect commodity or
resource markets, and
-- whether establishment of correlative standards of
.protection of interests and damages as well as the consequent
questions of liability and compensation would be acceptable.
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The United Nations has reaffirmed the sovereignty of
States over their natural resources in several UNGA resolu-
tions adopted between 1952 and 1970. Proposals by several
nations* that permission be obtained from observed States
before information derived from sovereign territory is
disseminated to other nations have so far been answered
largely with the argument that the experimental phase of ERS
is a "scientific investigation" and that. we therefore have
an obligation (under Article XI of OST) to inform the public
and he international scientific community of the results.
While we have agreed that the practices of the experi-
. mental period of ERS need not set aprecedent for the
operational use of this technology, we have cautioned against
addressing these admittedly difficult legal issues in the
absence of fuller understanding and experience in the appli-
.
tation of this new technology.
The February 1973 meeting of the UN Working Group on ERS
produced, in addition to the above-cited "five principles"
tabled by the Soviets, statements by Sweden, Canada, France,
.Argentina and Mexico urging the need for developing legal
principles applicable to ERS. The USUN report on this meet-
ing noted, in this connection, that "In view of the near-
unanimous contrary desire of other WG members, only the UK
and Japan seemed to appreciate US motivation on this issue."
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Now that ERTS-1 is approaching its first anniversary of
successful operation, it seems probable that the legal issues
summarized above will soon need to be resolved. The sections
of the NSSM paper on Dissemination Options and Observation
Options are included to assist in formulating USG policy in
this area.
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3. International Aspects of ERS
The basic pronouncement of-policy governing the inter-
national aspects of ERS during its developmental phase is
contained in President Nixon's address of September 18,
1969 to the United Nations General Assembly, in which he
said, in part:
"Of all man's great enterprises, none lends
itself more logically or more compellingly to
international cooperation than the venture into
space...
"For example, we are now developing earth
resource survey satellites. ..Present indications
are that these satellites should be capable of
yielding data which could assist in as widely
varied tasks as these: the location of schools
of fish in the oceans, the location of mineral
deposits on land, and the health of agricultural
;
crops.
"I feel it is only right that we should share
both the adventures and the benefits of space.
As an example of our plans, we have determined
to take actions with regards to earth resources
satellites as this program proceeds and fulfills
its promise. The purpose of those.actions is
that this program will be dedicated to produce
information not only for the United States but
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also for the world community."
The President's statement extracted above served to
confirm at the highest level a program of international
cooperation in ERS which was initiated by the U.S. in
1965 and which has served to make the experimental phase
of ERS a partner to the current programs of meteorological
and environmental observations being carried out through
the World Weather Watch and the Global Atmospheric Research
Program.
The earliest cooperative projects were with Brazil
and Mexico and were based upon aircraft remote sensing
techniques. These two countries were chosen because of
previous cooperative space efforts with NASA, and because
one of the purposes of the cooperation was to help es-
tablish pilot projects whose frame of reference and
character would be meaningful to other developing _
countries.
?
In other cooperative efforts, using aircraft, NASA
has provided assistance to the Indian Space Research
Organization in acquiring remote sensing data over areas
of coconut palm blight in the state of Kerala. At the
request of the Peruvian Government, the NASA P3A remote
sensing aircraft acquired data over the severely earthquake-
damaged areas of Peru in July 1970 to assist Peru with its
damage assessment effort and to acquire data useful for
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12.
the development of the ERS Program. A similar effort was
mounted in Guatemala following the Managua earthquake of
December-I972. The UN Food and Agriculture Organization (FAO)
and the Jamaican Government worked with NASA in acquiring and
analyzing data of Jamaica in a demonstration project to study
hydrologic and other applications of remote sensing data. The
U.S. Government sponsored an International Workshop on Earth
Resources Survey Systems in May 1971 at the University of
Michigan. Representatives of 42 countries and 16 international
organizations attended. Also in May 1971, Canada and the U.S.
concluded an agreement under which the Canadian Department of
Energy, Mines and Resources is cooperating with NASA in the
ERS program by establishing an ERTS data acquisition station
'near Prince Al,bert, Saskatchewan and a data processing facility
near Ottawa. ?
Other cooperative programs have been implemented by the
Agency for Internation'al Development. YThese include:
assisting a number of relatively less developed
countries, including Mali, Lesotho, Guinea, Upper
Volta, Niger, and Swaziland, in preparing proposals
for participating with NASA in the ERTS program;
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-- supporting two-week regional remote sensing train-
ing seminars in the Republic of Mali and the
Philippines and a 4 week remote sensing course at
the EROS Center in SOuth Dakota for participants
from developing countries, to broaden understanding
of the technology and techniques for ERTS image
interpretation;
- implementing, in cooperation with the Government of
Indonesia, a multispectral aircraft remote sensing
program designed to complement ERTS investigations;
and
conducting a comprehensive remote sensing training
program in Thailand to give impetus to Thai earth
resource investigations and applications.
- Shortly following the successful launch of ERTS-1, the
'Government of Brazil announced that it too would establish
its own national facilities for the acquisition and processing
of ERS data.
. In 1970 NASA issued Announcements of Flight Opportunity
for national and international participation in ERTS and EREP
?
data analysis experiments. Over 700 proposals were received,
of which more than 125 came from 38 foreign nations and three
international organizations. Ninety of these foreign proposals
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from 37 nations and two international organizations have been
accepted for ERTS-1. Sixteen countries and one international
organization have been notified of NASA accei-ctance of their
proposals for use of data collected through the Earth Resources.
Experiment Package (EREP) to be flown on SKYLAB.
. In addition to these arrangements made specifically for
investigators, ERTS and EREP space-aequired data are being
made generally available to all interested parties at equitable
cost through the Department of Interior's data center at Sioux
Fall.
A statement of USG policy relating to ERTS and EREP
experiments, spelling out the arrangements summarized above,
was distributed to members of the UN Working Group on ERS in
May, 1972. !..copy of this statement is appended as Attachment
1 to this Annex. At the February 1973 meeting of this Working
Group, the U.S. expanded its offer of cooperation by stating
that it would provide' fordistribution purposes a master copy
of data derived from its experimental ERS progranyto an Inter-
national UN facility if one were to be. established.
The basic objectives of the .ERS program during its early,
experimental phase are to promote the optimum development and
applicability of this new technology, and to enhance world
understanding and acceptability of ERS. It is important to
the achievement of these goals (3) to gain access to ground
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truth information beyond our borders, (2) to take advantage of
competence abroad, and (3), above all, by taking measures
designed to ease foreign apprehensions and to promote world
understandir.g of ERS, to forestall (or at least delay) any
international movement which might infringe on the use of
outer space platforms for the acquisition of information per-
taining to the earth's surface.
The policies adopted for the experimental period of ERS
seem to be fulfilling their objectives.
Adequacy of Present Policies
There is a question of whether our present international
policies and practices for ERS, for all of their demonstrable
-success during the experimental period, can be transferred in
toto into the operational phase without incurring serious
challenges both at home and abroad. The timely acquisition
of comprehensive information relating directly to the world's
resources and agricultural productivity will probably have
massive economic and environmental (and therefore political)
implications. The cash value of this information is impossible
to assess at the present stage of ERS development, but
estimates have ranged into the billions of dollars, mostly
associated with the production of food, fiber and forest
products.
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With so much at stake, it seems inevitable that the
governments of many nations (including the USG) will muster
their best arguments in an effort to secure for their own
nation the maximum possible benefits of this new technology.
The UN bureaucracy is prepared to come forward with proposals
for an internationalized ERS service, A relatively mild pro-
posal of this sort was tabled by Argentina in 1970, and the
UN Working Group on ERS recently decided to recommend the
establishment of a Task Force to identify and report on
alternatives for the dissemination and optimum utilization of
ERS information. Included in the Task Force's assignment would
be the technical, organizational and legal aspects .of an inter-
national distribution center or centers.
Although there will be advantages to the foreign relations
of the US in maintaining the policy of free and prompt dis-
semination of ERS information as we move into the operational
period, there may also arise significant pressures within the
US to restrict--or at least delay--the release of information
in cases where exclusive or priority access could yield
competitive advantage.
A frequently cited hypothetical example relates to deep-
sea fisheries. It is conceivable that ERS techniques will
develop to the point of yielding nearly real-time information
on such parameters as plankton content and temperature gradients
in the open sea, major factors in determining fish population.
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It is also conceivable that the provision of such information
on an exclusive basis to our fishing fleets will be instru-
mental in elevating Our fishing industry from its present
economic woes.
Similar considerations could apply to information
providing advance indication of any major perturbation in
world production of food or fiber. .For example, there
would be strong incentives to defer the public knowledge
of an impending failure of the American corn crop until
steps could be taken to discount at least part of the
economic impact of such a failure.
Attitudes of foreign nations will certainly be motivated
by considerations of self-interest, aggravated by resentments
over the fact.that the US already consumes such a large share
of the world's resources. Such attitudes unquestionably lie
behind many of the already-noted demands of UN delegates for
the establishment of "legal principles applicable to ERS."
Bases. for Policy in the Operational Period
The many questions which must be Considered in arriving
at a balanced policy designed to optimize the benefits to the
U.S. from its international program in ERS fall into four
general groups:
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1. Value of ERS information. In order to assess the
degree to which the U.S. will wish to make concessions
to foreign requests with regard to information dissemi-
nation and the other questions raised below, it is of
great importance to obtain as quickly as possible
estimates of the following three parameters: (a) the
value to the U.S. of operational ERS information
gathered on a global basis; (b) the value to the US
of ERS information gathered only over U.S. territory
and international waters; and (c) the value to foreign
nations as a group of ERS information gathered on a
global basis.
ERTS-A was launched in late July 1972 and
.?'
immediaiely started producing data of a quality
equalling or exceeding expectations. NASA officials
believe that a substantial number. of investigations
based on these data will be completed in 1973. On
the basis of these, taken together with studies of
cost-benefit ratios being performed on contract for
the Department of Interior, it should be possible to
derive fairly soon at least preliminary estimates of
the parameters listed above. We will, however, need
firmer policy guidelines before all such studies can
be completed.
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2. Organization. In the long term, the world's ERS
facilities may include satellites under the control
of international organizations (perhaps a new UN space
agency) as well as satellites owned and operated by .
foreign nations. U.S. policy on such matters as
licensing the export of technology and providing launch
assistance for satellites will be a significant factor
in determining how rapidly the U.S.. ceases to play a
virtually exclusive role in this field. Another major
factor in determining the growth rate of competitive
systems will be the extent to which the U.S. operational
ERS program satiS.fies foreign needs and eases foreign
apprehensions.
3. Right to Observe from Outer Space. See the above
.section on legal aspects of ERS. The right to observe
the earth from space platforms without the permission
of the subjacent State has not yet been seriously
contested. It is probable, however, that such a
challenge will arise in a future debate on operational
ERS, perhaps in the form of a proposal that this right
be reserved to satellites sponsored by international
organizations or to satellites conf.-yrming to certain
specified rules regarding information dissemination.
While there is little question that the USG will seek
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to retain the right to observe from outer space,
decisions must be made on the tactics we will use
in defending the right if it is subjected to
serious challenge.
4. Dissemination of ERS Information. There seem
to be three basic considerations which will deter-
mine policy with regard to the international
dissemination of ERS information:
(a) Whether the observing party will be
permitted to withhold or defer dissemination.
(b) Whether the observed State will be
permitted to exercise any proprietary
control over information derived from
its sovereign territory, and
(c) Whether the rules for information
dissemination will be the same for States
as for international organizations.
Drafter:
RTWebber (x22432)
February 27, 1973
LIMITED OFFICIAL USE
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In the interests of assuring an
optimum experimental program for
earth resources surveying via
space satellite, and in order to
maintain the scientific integrity
of this program, the following
guidelines will be applied by
? NASA and the other US Government
agencies concerned in implementing
the experimental program.
1. NASA will evaluate ail foreign ERTS and EREP experiment
proposals, if they are endorsed by a sponsoring government
agency (or equivalent) in the proposer's country or by a
competent inter-governmental body, and will apply the same
tests of scientific validity as for US-originated proposals.
2. Foreign investigators whose proposals are selected must
be funded by their own national institution or sponsoring
international organization. There will be no exchange of
funds, i.e., NASA and the sponsoring agency will each bear
the cost of discharging its respective responsibilities.
3. In general, NASA expects that most investigators should
obtain ground-truth to verify the results of their scientific
analyses. If an investigator requires air-borne or ground
access to the territory of a country other than his own to
obtain ground-truth, that access must be approved by a
government agency of the country concerned before the
experiment can be approved. All proposals involving data
concerning another country, whether originated by US or
foreign investigators, will be subject to the same con-
siderations.
4. In" view of the experimental and scientific character of
the.ERTS and EREP programs, proposals from investigators
sponsored by commercial entities will be processed and
evaluated on the same basis as other proposals.
S. 'Advance coordination with NASA is required before dis-
.cussing or initiating any foreign relationship in the conduct
of a proposed or selected experiment, e.g., through the
addition of domestic co-investigators to foreign experiments
or the addition of foreign co-investigators to domestic
experiments; advance approval from NASA is required before
commitment to such collaboration. When approved, cooperative
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investigations between US and foreign investigators will
be conducted on a no-exchange-of-funds basis in which the
foreign sponsoring agency supports the activity of the
foreign investigator and the US sponsoring agency supports
the activity of the US investigator.
6. In addition to the arrangements made specifically for
investigators, ERTS and EREP space-acquired data will be
made generally available to interested parties at an equitable
and nondiscriminatory cost determined under US costing '
Arrangements.
7. In order to facilitate availability of ERTS and EREP
space-acquired data on a non-discriminatory basis, maximize
knowledge of and benefit _from these programs and encourage
foreign, as well as domestic, participation in on-going
earth resources surveying activities:
a. NASA will prepare and distribute a list of approved
experimenters indicating the sponsoring organization,
purpose of study, and test site involved. This list
will be made available to interested governments and
international organizations as well as to other
interested parties.
b. Catalogues or accession lists of ERTS and EREP
space-acquired data placed on file will be prepared.
and distributed periodically to interested govern-
ments and international organizations as well as
other interested parties. The distribution to
governments and international organizations will
be without charge. Distribution to others will be
at an equitable and nondiscriminatory cost.
f
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