By Girish Kalla, Seedling School of Law And Governance, Jaipur National University Jaipur
Editor’s Note: Disaster management is the effort of communities or organizations to plan and coordinate all personnel and materials required to either mitigate the effects of, or recover from, natural or man-made disasters. The two major arms of space technology in aid of substantial development are space components which are utilized for telecommunications and remote sensing. The article covers all the aspects of disaster management with regards to space technology which includes the duty of States to warn under the International Law, the future challenge before the States in response to the disaster posed and the encouragement of the application of space system to disaster vulnerability reduction and how these space technologies paves way for combating disaster management.
‘Disaster management can be defined as the organization or management of resources and responsibilities for dealing with all humanitarian aspects of emergencies, in particular preparedness, response and recovery in order to lessen the impact of disasters.[i]
It is elementary that any disaster response policy must necessarily address the following aspects- disaster preparedness, disaster prevention, disaster prediction and early warning, disaster mitigation, immediate relief, longer-term relief and rehabilitation. The principal space components in these relate to utilization of telecommunications and remote sensing, the two major arms of space technology in aid of substantial development.[ii]
A. Role of Space Technology in Disaster Mitigation
An increasing awareness of the need for a common effort to face the serious problems caused by natural disasters has led the General Assembly of the United Nations to declare the Nineties (1990-2000) “The International Decade for Natural Disaster Reduction” (IDNDR)[iii] which was later on succeeded by “The International Strategy for Disaster Reduction” (ISDR) for achieving success especially in terms of forging vital links among the political, scientific and technological communities.[iv]
Among its main aims, we find the aim ‘to reduce the loss of life, property destruction and social and economic disruption caused by natural disasters’ through concreted international actions, especially in developing countries and also to improve capacity of each country to mitigate the effects of natural disasters by closing critical gaps in knowledge fostering through scientific and engineering endeavors.[v]
In order to reach the aims it is necessary to strengthen the study of natural disasters which is conducted on Earth by geologists and experts and, in the system of International Co-operation of the U.N. Program, by those entrusted with the management of disasters.[vi]
And stress must be immediately place on the point that Remote Sensing Satellite systems are not alone useful for the prevention of the disaster such as the one mentioned above as the intervention time to avoid the happening of the disaster is not always enough.[vii] However, the satellite images are useful given their feature of providing with the real time data for the mitigation of their effects.[viii]
This service is offered by the global mobile satellite communications system INMARSAT and also the research and rescue operations are being managed by an international satellite system named COSPAS-SARSAT Program[ix] and with this program 2030 persons have been rescued in the major disaster areas over the world between 1982 and 1991.[x]
B. The Law of Outer Space and Disaster Response
The contemporary international space law has been derived heavily from a diversity of sources of inspiration which includes the Law of the Sea, the Antarctica Treaty, the extension of disarmament to outer space, equitable access to the benefits of space technology, utilization of space technology for sustainable development and so on. To this has been added, free-access to disaster-relevant data, as a public service to the international community.
The Vienna Declaration on Space and Human Development 1999, adopted at the UNISPACE III refers to the relationship between space science and technology and the disasters at least in three places. The third and eleventh paragraph in the Preamble recognizes the importance of space technology for disaster management and for effectiveness of the challenges posed by the natural and anthropogenic disasters. Finally in the operative section, the Declaration urges action to be taken to “to implement an integrated, global system, especially through international co-operation, to manage natural disaster mitigation, relief and prevention efforts, especially of an international nature, through Earth Observation, communications and other space-based services, making maximum use of existing capabilities and filling gaps in world-wide satellite coverage.”[xi]
i. The Principle of Remote Sensing of the Earth from Outer Space
The body of law specifically dealing with remote sensing was adopted by consensus [xii] in the form of the U.N. General Assembly Resolution in 1986[xiii]. The weight and significance is increased for a General Assembly Resolution that is unanimously adopted; this means that no states found shortcomings in the resolution and did not vote against it to block its adoption .[xiv]
The role of remote sensing in disaster prediction and early warning, disaster mitigation and disaster relief can hardly be exaggerated. Principle XI of the 1986 Remote Sensing Principles[xv] provides:
“Remote sensing shall promote the protection of mankind from natural disasters.
To this end, States participating in remote sensing activities that have identified processed data and analysed information in their possession that may be useful to States affected by natural disasters, or likely to be affected by impending natural disasters, shall transmit such data and information to States concerned as promptly as possible.”
Even if the Principles on Remote Sensing do not gain sufficient support for it to be binding in nature, its content can be considered to reflect an international customary law[xvi]. The finding of customary international law principles in General Assembly Resolutions has been recognized by this Court in the Nicaragua Case.[xvii]
The element of international custom requires opinio juris and state practice, and the Principles on Remote Sensing satisfy both as the resolution is a final synthesis of different countries’ views on remote sensing from space including Argentina[xviii], Soviet Union co-sponsored by France[xix], Joint Draft by Soviet Union and France[xx], Joint Draft by Argentina and Brazil[xxi], United States[xxii], Mexico[xxiii], Brazil[xxiv] and Chile[xxv] and over two decades they have been widely followed by various states and entities.[xxvi]
Thus, there is no difficulty from the viewpoint of international law to recognize the principles embodied in the 1986 Resolution on Remote Sensing Principles.
It follows therefore, that Principle XI clearly prescribes an obligation on the part of space-powers with disaster relevant capability to issue early warning to the potential victim states. Humanitarian assistance being the thrust of this Principle, it is arguable that the assistance by the space-power concerned to the disaster victim state is in the nature of an international public service, a contribution to human welfare.[xxvii]
The role of remote sensing data support for disaster response is often critical. For this reason, its ‘commerciality’ should be tempered by consideration of humanity and equity. The data on early warning should be deemed free, and its transfer, obligatory[xxviii]-this is undoubtedly the combined effect of the principles of humanity and international co-operation.
ITU has been at the center of disaster communication, as it “recognizes the seriousness and magnitude of potential disasters that may cause dramatic human suffering [a]; that the recent tragic events in the world clearly demonstrate the need for high-quality communication services to assist public safety and disaster relief agencies in minimizing risk to human life and to cover the necessary general public information and communication needs in such situations, [and it is] convinced that the unhindered use of telecommunication equipment and services is indispensable for the provision of effective and appropriate humanitarian assistance.”[xxix]
Article 46 of the ITU Constitution, making a special provision for ‘Distress Calls and Messages, postulates:
“Radio stations shall be obliged to accept, with absolute priority, distress calls and messages regardless of their origin, to reply in the same manner to such messages, and immediately to take such action in regard thereto as may be required.”
The Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations[xxx] is a watershed disaster response treaty and one of the most important legal initiatives undertaken by ITU in respect of a disaster telecommunications response law.
Article 3 and Article 4 read with Article 7 is of great significance. Article 3 embodies an undertaking on the part of States to co-operate among themselves as well as with non-state entities,” in accordance with the provisions of this Convention, to facilitate the use of telecommunication resources for disaster mitigation and relief.[xxxi] It further manifests an obligation on the part of States to cooperate among themselves to improve the ability of governmental organisations, non-State entities and intergovernmental organisations to establish mechanisms for training in the handling and operation of equipment, and instruction courses in the development, design and construction of emergency telecommunication facilities for disaster prevention, monitoring and mitigation.[xxxii]
Article 4 provides for the framework for provisions of telecommunication assistance for disaster mitigation, upon request. Further Article 7(8) details the applicable equitable principles to be taken into account when the service-providing state seeks payment or reimbursement of the costs of provision of emergency telecommunication service in terms of the convention.
ITU has come up with a draft Action Plan for Standardization on Telecommunications for Disaster Relief and Early Warning[xxxiii] after the Tsunami disaster hitting the South and South East Asian Coasts in December, 2004.
iii. The International Charter on Space and Major Disasters
The world is affected more and more by several natural disasters such as earthquakes, cyclones, floods, forest fires, land-slides and volcanoes and to combat this, the World’s Space Organisations awakened to the need of collectively putting together space resources for global disaster management and environment protection. In July 1999, during the UNISPACE III conference held in Vienna, the French Space Agency (CNES) and the European Space Agency (ESA) announced their intent to set co-ordinated efforts for disaster management and on June 20, 2000, the International Charter on Space and Major Disaster was signed by these two agencies.[xxxiv] In September, 2001 Indian Space Research Organization (ISRO) and National Oceanic and Atmospheric Administration (NOAA) also joined as member of the Charter. The Argentina Space Agency (CONAE) also joined the charter in July 2003. The Japan Aerospace Exploration Agency (JAXA) became a member in February, 2005.
a. The purpose and overall organization of the Charter
The Charter aims at providing unified system of space data acquisition and delivery to those affected by natural disasters[xxxv] through Authorized Users (AU).[xxxvi] The Charter is open to all space agencies and satellite operators ready to commit significant and relevant satellite/ground resources[xxxvii] in accordance with the provisions of Article VI. The parties develop their co-operation on a voluntary basis and without transfer of funds among them.[xxxviii] The Charter also cooperates with the European Union, the UN Bureau for the Co-ordination of Humanitarian Affairs and other recognized national or international organisations, whether governmental or non-governmental.
The parties shall use their best endeavours, in accordance with the identified crisis scenarios, to supply associated bodies with necessary associated information and services, gathered by the space facilities.[xxxix] Since its operation from November 1st 2000, the Charter was activated in many continents for various kinds of events such as Floods in Bulgaria[xl], Floods in Romania[xli], Earthquake in Iran[xlii], Hurricane in Rarotonga Island-Cook Islands[xliii], Volcanic Eruption on the island of Montserrat[xliv] and at many such instances.
b. Legal Value of the Charter
However, the Charter cannot be considered as an international agreement, since it was not signed and ratified by States, but only by Space Agencies, which are its members. The Charter seeks to set an alternative method of international co-operation, and it represents a first step, which might be followed by other governmental agreements of more binding nature.[xlv] Together with other alternative methods of international co-operation in space activities, it avails the co-operation process’ consolidation itself.[xlvi]
These alternative methods are welcome, since, after the Moon Agreement, 1979, the United Nations have no longer been able to bring States to the stipulation of Agreements, but at the most-for new Space Activities- the General Assembly has issued some principles as per consensus[xlvii] whose value is not as strictly binding, but only an exhortation.
c. Disaster Response Law
The term disaster response law is a contribution of the Red Cross Movement represented by the International Federation of Red Cross/Red Crescent Societies. Michael Hoffman, an expert with the American Red Cross Society in Chapter 8 appearing in the World Disasters Report 2000, rightly notes that there has been a limited legal progress or with no proper body of law to help alleviate the effects of natural and technological disasters when compared to the extensive body of law developed since 1860’s to regulate military conduct in war and provide for humanitarian assistance to its victims.[xlviii] He also notes the regulation of use of telecommunications in disasters, such as the Tampere Convention, and also some customary law. But “At the core is a yawning gap. There is no definitive, broadly accepted international law, which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance.”[xlix]
He further reminds us that even if international law fails, we should in keep in mind that domestic laws are also not always followed but we need the law to set standards for the government and other actors which would seek to frame new or better rules.[l]
He recommends a study of International Humanitarian Law as a backdrop of International Disaster Response Law (IDRL), because the former is its near existing relative.[li]
It was also envisaged by V.S. Mani that one should launch a pluralistic search for norms, principles and operational rules to give flesh and blood to the emerging IDRL.[lii]
C. Jus Cogens of IDRL
The foundation of IDRL could easily be related to at least two candidates for jus cogens: one is the Principle of Humanity and the second is the Principle of International Co-operation.
i. Principle of Humanity
The requirement of respect for human life appears in the U.N. Charter and has been elaborated in several international human rights instruments.[liii] In the Corfu Channel case, this Court recognized elementary considerations of humanity as a general and well-recognized principle “even more exacting in peace than in war”.[liv] Respect for human rights was again emphasized in the Case concerning Military and Paramilitary Activities in and against Nicaragua, where the Court also invoked the duty of States not to encourage disrespect for humanitarian law.[lv]
The grant of humanitarian principle at such high pedestal derives from the recognition of the sacrosanctity of human life and it should be equally respected not only in the context of man-made disasters such as war but also in respect of any disaster which threatens the life of a human. Also, Article 4(2) of the International Covenant on Civil and Political Rights 1966, the right to life is a non-derogable right of every human being.[lvi] Further, Article 1(3) of the UN Charter mandates the Organisation with the task of achieving “international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and disaster response is indeed a humanitarian character par excellence.
ii. Principle of International Co-operation
International Law recognizes the principle of international cooperation as a basic principle based on the U.N. Charter.[lvii] This obligation is supported by the Declaration on Friendly Relations, which confirms that States are obliged to co-operate in good faith.[lviii] The O.S.T. also stresses the importance of international co-operation, mentioning it no less than six times.[lix]
“States have the duty to co-operate with one another irrespective of the difference in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences.”[lx]
Thus, the international co-operation has been conceived for the 1st time on the juridical plane when UN General Assembly took upon itself the task of negotiating consensus formulations on “seven basic principles of international law” in 1961 which was further taken up by the Court in Nicaragua Case which fended itself to decide the case exclusively on the basis of international customary law and rules that the legally binding character of certain principles could be determined in terms of opinio juris.[lxi]
Another analogy can be drawn from the Convention on SOLAS that render helps in the event of a disaster. IMO’s Global Maritime Distress and Safety Systems (GMDSS) was first introduced into the SOLAS Convention in 1988. Also available is the COSPAR-SARSAT system with a preparatory network of more than 37 countries.
D. Duty to Warn
Under International Law, the states are under a customary law obligation to ensure that transboundary harm is not caused to neighbouring States from hazardous activities in their territory.[lxii] The duty to inform essentially flows from an obligation to notify when undertaking a dangerous or hazardous activity by states or the operator.[lxiii]
Accordingly, it is questionable as to whether States have responsibility to warn another for impending threat like Tsunami on a clear legal basis. One result of the combination of the principles of humanity and international co-operation read with principle of good faith renders the answers that there indeed exists a definite duty of early warning.
Due care to warn the potential affected States is evident for technological disasters i.e., nuclear matters and its transboundary effects as stipulated in treaties such as Convention on the Early Notification of a Nuclear Accident[lxiv], and Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency.[lxv] Such duty is clearly established after the Chernobyl Disaster in the former Soviet Republic of Ukraine. However, earthquakes and tsunami are distinct from such technological disasters in a way that States are not responsible for causing these disasters and do not know precisely the impact thereof.[lxvi]
Principle 18 of the Rio Declaration[lxvii] provides for – duty to notify other States of natural disasters or other emergencies and Principle 19[lxviii] states the duty of the State- prior and timely notification and relevant information to potentially affected States.
These provisions show that it remains a customary obligation to notify or consult other States for mitigating hazardous activities.
E. The Future Challenge
Although the space activities are being used ever more effectively and in a more structured way to mitigate the effects of natural disasters but it is estimated that only 10 percent of the potential demand for space information could be effectively serviced by existing space structures and organizations.[lxix] Therefore, responsible space agencies or entities may encourage better co-ordination and capacity development for the application of space system to disaster vulnerability reduction, emergency response management, impact mitigation and post-disaster recovery.[lxx]
States should be encouraged to consider acquiring their own small satellites assets and to work within a co-operative disaster monitoring constellation in order to gain the benefits of freely accessible data.[lxxi] Another Challenge will be to improve disasters management by using the added advantage of having access to high resolution images. Satellite systems with higher resolution and new agile sensors are needed such as the US Commercial Satellites with a metric resolution.[lxxii]
Finally, improvements may be made in the data policy field in order to broaden the data products and information access for disasters and management. It may be stressed that, in the response of Indian Ocean Tsunami of 26 December, 2004, space agencies co-operating in the International Charter on Space and Major Disasters have provided raw satellite imagery with a multi-user license, in order to authorize access to such data to all entities involved in work related to the international response to the countries affected by the Tsunami.[lxxiii]
To conclude the essay, the Author submits that Space technologies play an important role in providing information to assist in early warning and management to combat natural disasters or aftermath of the disasters. Information provided by the Earth Observation Satellites and other space technologies are already an integral part of disaster management activities in many developed and developing countries.
The main challenge will be to strengthen the space based infrastructure and associated services to enable more operational monitoring and mitigation applications, in close association with the legal framework and the States follow an essential methodological principle for disasters: help in emergencies and prevention interventions. However, a multilateral warning system us urgently needed as proven by the devastating impact of Indian Tsunami and the role of international law to encourage States to warn others regarding the threat of disasters remain important and early warning systems for disasters is only possible through close co-operation among countries and effective exchange of information based on the earth observation capability.
Edited by Palak Pathak
[i]International Federation of Red Cross and Red Crescent Societies Disaster Management. Accessed 28-03-2013.
[ii]V.S. Mani, Towards an International Disaster Response Law: Quest for a Role for International Space Law,in Proc. of ISRO-IISL Space Law Conference 3-48 (V. Gopala Krishnan, Rajeev Lochan eds. 2005) [hereinafter Proc. of ISRO].
[iii]Resolution n. 42/169 adopted by General Assembly of U.N., International Decade for Natural Disaster Reduction, December 11, 1987.
[iv]http://www.fire.uni-freiburg.de/programmes/un/idndr/idndr.html. Last Accessed on 03rd April, 2013.
[v]Gabriella CATALANO SGROSSO, Natural Disaster Management, in Proc. of ISRO at 3-17.
[vi]Ade Abiodun, Natural Disasters and Their Mitigation Using Space Technology, in 84 Space Safety and Rescue 321, (G.W.Heath eds. 1992) [hereinafter Ade Abiodun].
[vii] Supra note 5 at 3-18.
[viii] Marianna Morelli, PUBLIC AND PRIVATE INTEREST IN REMOTE SENSING ACTIVITIES: THE NEED FOR AN EFFECTIVE LEGAL ENVIRONMENT, 49 I.I.S.L. PROC. 1, 4 (IAC-06 –E6.3.10) (2006).
[ix] Winter, Communications System, in 79 Space Safety and Rescue 194 (1990).
[x] COSPAS-SARSAT System Data- Summary Status, n. 14, Feb. 1991, COSPAS-SARSAT Secretariat, INMARSAT London.
[xi]Vienna Declaration, para 1(b)(ii). This para contains the declaration of “the nucleus of a strategy to address global changes in the future.” Supra note 2, in Proc. of ISRO at 3-49.
[xii] Carl Christol, International Space Law, Past, Present And Future 73-95 (1991).
[xiii] Principles on Remote Sensing, G.A. Res. 41/65, Annex, U.N. GAOR, 41st Sess., U.N.Doc. A/RES/41/65 (1986) [hereinafter PRS].
[xiv] Atsuyo Ito, Legal Aspects of Remote Sensing Satellite, 5 Studies in Space Law 55 (2011).
[xv]Supra note 13.
[xvi] B. Cheng, Studies in International Space Law, 136 (1999).
[xvii] Nicaragua, supra note 6 at pp. 99-100.
[xviii] U.N. Doc. A/AC.105/C.2/L.73,26 (1970).
[xix] U.N. Doc. A/AC.105/111 (1973).
[xx] U.N. Doc. A/AC.105/C.2/L.103 (1975).
[xxi] U.N. Doc. A/AC/1/1047, Oct 15, 1974.
[xxii] U.N. Doc. A/AC.105/C.2/L.103 (1975).
[xxiii] U.N. Doc. A/AC.105/288 (1981).
[xxiv] WG/RS (1982)/WP.11 (1982).
[xxv] WG/RS (1984)/WP.12 (1984).
[xxvi] Supra note 14 at 56.
[xxvii]Supra note 2, in Proc. of ISRO at 3-52.
[xxviii]Carl Q. Christol, The Modern International Law of Outer Space 741 (1982).
[xxix]“Telecommunications is the service of humanitarian assistance,” Resolution 36, Marrakesh, 2002, available at ITU website.
[xxx]Adopted by the Intergovernmental Conference on Emergency Telecommunications (ICET-98), available at ITU website.
[xxxi]Article 3, para 1.
[xxxii]Article 3, para 5.
[xxxiii]Version 18 March 2005, at ITU website.
[xxxiv]For the Charter test: http://www.disasterscharter.org/main_e.html.
[xxxv] Article II-Purpose of the Charter.
[xxxvi]Authorized Users- They are the only bodies authorized to request the services of the Charter.
[xxxvii]Article III, 3.2.
[xxxviii]Article III, 3.1.
[xxxix]Article IV, 4.5.
[xlii] Date: 22-02-2005.
[xlv] Supra note 5, in Proc. of ISRO at 3-29.
[xlvi]Ferrazzani, Alternative Approaches to the International Space Cooperation, in ESA bulletin 110, May 2002.
[xlvii]Galloway, Consensus Decision Making by the United Nations Committee on the Peaceful Uses of Outer Space, 7 J. Space L. 1 (1979).
[xlviii]World Disasters Report 2000, 144-157 at 144.
[li] Supra note 2, in Proc. of ISRO at 3-43.
[lii]Id. at 3-44.
[liii] Art. 55, U.N. CHARTER; Universal Declaration of Human Rights, Dec. 10, 1948, U.N.G.A. Res. 217; American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970).
[liv] Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J. 4, 22 [hereinafter Corfu].
[lv] Concerning Military and Paramilitary Activities in and against Nicaragua (Nicar. v U.S.) 1986 ICJ 14 [hereinafter Nicaragua].
[lvi]Article 4(2) of ICCPR states that there should be no derogation from articles 6, 7, 8 (para. 1 & 2), 11, 15, 16 and 18.
[lvii] Art. 2(1),U.N. Charter.
[lviii] Declaration on the Principles of International Law concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 18, at 123, U.N. Doc. A/8018 (1970).
[lix] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, entered into force Oct. 10, 1967, Preamble, art. I, II, IX, X, XI, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter O.S.T.].
[lx]Supra note 58, 4th Principle.
[lxi] Nicaragua, supra note 55 at 99-100.
[lxii] Trail Smelter (U.S. v. Can.), 3 R.I.A.A 1905, 1963 (1938 & 1941).
[lxiii]Narinder Singh, Commentary Paper on “Indian Ocean Tsunami: Highlighting Issues Relating to the Use of Space Technology for Disaster Management”, in Proc. of ISRO at 3-58.
[lxiv]Sept. 26, 1986, 1439 UNTS 275.
[lxv]Sept. 26, 1986, 1457 UNTS 133.
[lxvi]Atsuyo Ito, Indian Ocean Tsunami: Highlighting Issues Relating to the Use of Space Technology for Disaster Management, in Proc. of ISRO at 3-6.
[lxvii] Rio Declaration on Environment and Development, Principle 18, U.N. Doc. A/ CONF.151/6 reprinted in 31 I.L.M. 874/Rev.1 (1992) [hereinafter Rio Declaration].
[lxviii] Principle 19, Id.
[lxix] Thierry Lemaire, The International Charter on Space and Major Disasters, in Proc. of ISRO at 3-71.
[lxx]Report on the United Nations/International Astronautical Federation Workshop on Capacity-Building in Space Technology for the Benefit of Developing Countries, with Emphasis on Natural Disasters Management, at 6, UN Doc A/AC.105/834 (2004).
[lxxi]Supra note 69, in Proc. of ISRO at 3-72.
[lxxii]T. Lemaire, High Resolution Remote Sensing, Legal Aspects, thesis under the direction of Prof. A. Kerrest, University of Brest, 2003.
[lxxiii]New & Emerging Technologies Applications and Initiatives for Space-related Inter-Agency Co-operation, at 5, UN Doc A/AC.105/843.