Satellite Imagery in International Human Rights Litigation

In July 2014, the AAAS Science and Human Rights Coalition announced the winners of its Student Essay competition, to which undergraduate and graduate students submitted essays on topics at the intersection of science, technology and human rights. The following essay won first place in the undergraduate category. Read the winning graduate student essay: Water as a Friend and a Right.

Satellite Imagery in International Human Rights Litigation
Surabhi Chaturvedi
National Law Institute University, Bhopal, India

“That’s one small step for man, one giant leap for mankind.”

Those words by Neil Armstrong signalled the start of the space age. Of greater significance is the hope envisaged in those words, that science has tapped yet another frontier for the betterment of humankind. Indeed, space related activities are a boon for humanity.

Today, satellites have made their presence felt in the field of communication, exploration of natural resources, agriculture, meteorology, disaster management, etc. The omnipresence of satellite imaging cannot be ignored. The United Nations has also acknowledged the usefulness of remote sensing by adopting the UN Resolution Relating to Remote Sensing of the Earth from Outer Space by consensus in 1986 [1]. Yet, the response of the international legal community towards the use of remote sensing data as substantive evidence that establishes an impugned fact beyond reasonable doubt has been tepid. Prima facie, this seems an issue about procedure. But in practice, it presents a serious hurdle when public interest litigators, human rights organizations, and victims turn to law for compensation or even prevention of human rights violations.

Remote sensing is the sensing of the Earth’s surface from space, such as by a satellite [2]. Once such data are collected by the satellite, they are enhanced by human or electronic analysis such that they are readable and can be used for a specific purpose [3].  Many parts of the world completely inaccessible to the mainland due to lack of or destruction of communication and transport links can be monitored in near real time through satellite imaging. An example of this is the use of satellite imagery by the U.S. government to identify the damage suffered by Internally Displaced Persons  (IDP) shelters in Sri Lanka [4]; evidence of war crimes in Darfur, Sudan were gathered through satellite images [5]; Human Rights Watch, Arabia, identified 340 distinct sites in Aleppo, Syria where the opposition had used barrel bombs and airborne weapons to destroy residential neighborhoods through satellite imagery, something the opposition had denied it in the press. On the basis of the said satellite imagery, the UN Security Council demanded that all parties “immediately cease all attacks against civilians”[6].

The aforementioned exercises testify to the fact that satellite imagery has the potential to become an essential tool for human rights mapping. The issue of satellite imagery as evidence first came up before the International Court of Justice (ICJ) in 1986 in a dispute between Mali and Burkina Faso [7]. In that dispute, the Court held that maps are not title of territoriality until both parties assent to it. In Namibia v. Botswana [8], a boundary dispute was sought to be settled by satellite imagery but the Court relied on it minimally. The Qatar v. Bahrain [9] dispute fell along the same lines as Namibia v. Botswana. In 2002, however, the real problem of admitting satellite imagery as conclusive evidence at the ICJ came to the fore in Nigeria v. Cameroon [10]. In the present case, the territoriality of Tispan village was impugned and Nigeria used a satellite image to lay its claim on the said area. Cameroon interpreted the same data differently to establish the reverse.

Admittedly, the concern regarding admissibility of satellite imagery as evidence in Court is not unfounded because, as noted above, raw remote sensing data are processed by experts to make it understandable to the layman. To expedite international human rights litigation, it is imperative that a proper mechanism or standard is established so that satellite imagery can be regarded in court as substantive evidence. This can only be done when human judgment required for the interpretation of images is eliminated or reduced to the bare minimum. A two pronged approach should be adopted to achieve this. First, the permissible level of resolution of satellite images which are presented as evidence should be fixed by the ICJ.

Second, the purpose for which satellite imagery is to be used determines the type of enhancement a particular image undergoes. For instance, the type of enhancement required for the purpose of disaster management differs from the type of enhancement required for meteorology. Due to this difference in processing and enhancement of images, it is advisable that the Court ascertain the type of enhancement and processing a satellite image must undergo in order to be admissible as evidence. Achieving a common denominator for similar types of cases would allow the Court to compare images when submitted as evidence. Satellites, in the literal sense, are “eyes in the sky,” and human rights jurisprudence must usher science into courtrooms to effectively standardize the resolution of legal issues.

References

1. A/RES/41/65. Principles Relating to Remote Sensing of the Earth from Space, Dec. 3, 1986, available at: 

http://www.un.org/documents/ga/res/41/a41r065.htm Accessed: May 28, 2014.

2. Human Rights Watch, Arabia. "Syria: Unlawful Air Attacks Terrorize Aleppo." Daily Star (Lebanon), March 24, 2014. Available at: http://www.hrw.org/news/2014/03/24/syria-unlawful-air-attacks-terrorize-aleppo. Accessed: May 28, 2014.

3. Ito, Atsuyo. "Environmental Law." In Legal Aspects of Satellite Remote Sensing. Leiden, Netherlands: Martinus Niljhoff Publishers, 2011.

4. Rotberg, Robert I. "Deterring Mass Atrocity Crimes: The Cause of Our Era." In Mass Atrocity Crimes: Preventing Future Outrages . Washington D.C.: Brookings Institution Press, 2010.

5. U.S. Department of State. Report to Congress on Incidents During the Recent Conflict in Sri Lanka. Available at: http://www.state.gov/documents/organization/131025.pdf. Accessed: May 29,2014.

6. West, J. Richard. "Copyright Protection for Data Obtained by Remote Sensing: How the Data Enhancement Industry Will Ensure Access for Developing Countries." Northwestern Journal of International Law & Business 11: 406 (1990-1991). Available: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1320&context=njilb. Accessed: May 26, 2014.

7. Frontier Dispute (Burk. Faco v. Mali), 1986 I.C.J. 3 (Order of Jan. 10)

8. Kasikili/Sedudu Island (Bots. v. Namib.), 1999 I.C.J. 1045 (Dec. 13)

9. Maritime Delimitation and territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), 1994 I.C.J. 112 (July 1)

10. Land and Maritime Boundary between Cameroon and Nigeria (Nig. v. Cameroon), 1999 I.C.J. 31 (Mar. 25)