International Law and Satellite Data as Evidence in Court

MAUREEN WILLIAMS

Londres

Workshop; Evidence from Space; 2010

London Institute for Space Policy and Law

[2.20.34] 11.15 Session  Jurisdictional Treatment This session is a comparative look at various cases and law in the UK, US, Belgium, Netherlands, France, Germany, and international law.  The order is the jurisdiction considered least rigorous to the most rigorous. The topics will include admissibility of evidence, restrictions on admission of evidence and standard of proof.  Maureen Williams: International Law  (Doc.ESA/ISLP/EO 55 This presentation summarizes the major issues involved in the production of satellite imagery as evidence in court, focusing on the International Court of Justice, international arbitrations and other related examples.  There is also reference to the views of lawyers, judges and scientists about satellite data in international litigation. Its use is growing. Satellite data is nowadays used as evidence in various fields of science, such as biology. Awareness of its use is spreading in Latin America. A number of these questions and ensuing difficulties were clearly outlined in the Report prepared by the BIICL, concluded in 2001 recommending, inter alia, the need to create awareness and the importance of capacity building in this field. It observed, in rather worrying terms, that it was not the satellite data that that judges were using in court but, rather, the opinion of the expert interpreting the image. This situation left judges and arbitrators particularly uneasy. This presentation summarizes the major issues involved in the production of satellite imagery as evidence in court, focusing on the International Court of Justice, international arbitrations and other related examples.  There is also reference to the views of lawyers, judges and scientists about satellite data in international litigation. Its use is growing. Satellite data is nowadays used as evidence in various fields of science, such as biology. Awareness of its use is spreading in Latin America. A number of these questions and ensuing difficulties were clearly outlined in the Report prepared by the BIICL, concluded in 2001 recommending, inter alia, the need to create awareness and the importance of capacity building in this field. It observed, in rather worrying terms, that it was not the satellite data that that judges were using in court but, rather, the opinion of the expert interpreting the image. This situation left judges and arbitrators particularly uneasy. The problem is, in fact, that even though satellite images, as evidence in court, allow little margin for human error in the production of the image, there is plenty of space during the interpretation stage by the expert. Glaring examples in the nineties were, inter alia, the boundary disputes between Nigeria and Cameroon, Qatar-Bahrain and Botswana-Namibia, within the ICJ, and Yemen-Eritrea in the field of international arbitration. Briefly, Nigeria had used a recent satellite image to show the location of a certain area. The image was interpreted differently by the parties and, instead of helping, caused even more confusion. The net result was that, whereas Nigeria considered the satellite data as a very clear way to clarify a point to the Court, once interpreted, it had the opposite effect. More recently, the award from the Eritrea-Ethiopia Claims Commission (2009) is illustrative. This Commission was called to decide, by means of binding arbitration, all claims for loss, damage or injury related to the violation of International Humanitarian Law. In other countries, the Terrero case decided by the Supreme Court of Argentina in 2002 marked the first stages of the use of satellite data as evidence in court in this country. From the very outset it was perceived that the issue of evidence from space was particularly sensitive in cases of boundary disputes on the international front where questions of sovereignty over land and water were disputed. The essential issue, doubtless, is the legal value of EOS data, a result of a long chain of interpretations from the moment raw data is collected by the satellite until it is submitted to court. One of the first landmarks, noteworthy for its implications, was the Frontier Dispute case , in 1986, between Burkina Faso and Mali, where the ICJ considered that maps could not constitute a binding document or territorial title by themselves, whatever their accuracy and their technical value, unless the parties concerned had expressed their acceptance. Twenty-four years on, however, the advances of science and technology have led to a completely different international context which indicates the need for further studies on the topic. This would provide useful pillars for drawing up international standards and give a more precise legal framework for the use of satellite data in court. The prevailing opinion is that higher precision is not the only difference between satellite data as evidence in court and that supplied by more traditional means (aerial or terrestrial). The difficulties, rather, concern the very nature of satellite imagery which mainly consists of data and not photographs proper. This point is essential where evidence is concerned. The falsification of a conventional photograph could be detected at a later stage. This is not the case when dealing with numbered images which are merely a list of data that can be modified without possibility of detection and the modification of which are invisible to the human eye. In short, satellite data should be viewed in more positive light. This is the general opinion. International standards should be agreed on the authentication of data, and reliable mechanisms for the production of satellite imagery in court should be enforced controlling the whole process of data collection.