INTRODUCTION:
To decrease the margin of error and reduce the risk of arriving at an erroneous conclusion, the legal system has developed the laws of evidence. Both globally and in India, evidence can be introduced in both oral and documentary forms. As such, Satellite imagery and Earth Observations (Eos) are relatively newer technologies. In 1986, when the United Nations General Assembly (UNGA) adopted the United Nations (UN) Principles relating to Remote Sensing of the Earth from Space at the 41st Session, neither the drafters nor the organisation could anticipate the rate at which these technologies will grow1 rendering the Principle guideline obsolete in the time to come.
Irrespective of the fact that Earth Observations and Satellite Imagery is being used increasingly in international disputes in recent times, there are several key issues about its admissibility and reliability as an unbiased source of evidence. In the positions taken by Public, Private, International and Regional adjudicatory bodies, there is a divergence of opinion in terms of admissibility of EOs and Satellite images as Evidence.,
Niklas Hedman points out in his Introductory Report at the Berlin Conference, 2004:
"...the proof presented by a party, whether a map, a chart, an aerial photograph or a satellite image, could be argued as having the same basic value as evidence as such, the only difference being the degree of precision. Thus the conclusion that the value of satellite images as evidence could be guided by the position of the ICJ concerning the value of maps. In this sense Hedman refers to the Frontier Dispute case, way back in 1986, between Burkina Faso and Mali, where the Court considered that maps could not constitute a binding document or a territorial title by themselves, whatever their accuracy and their technical value, unless the parties concerned had expressed their acceptance.2
PRECEDENTS SET BY INTERNATIONAL COURTS AND TRIBUNALS
In Frontier Dispute,3 the International Court of Justice (ICJ) very clearly held that Maps could not constitute a binding document or a territorial title by themselves whatever their accuracy and technical value, unless the parties concerned had expressed their acceptance.
Those maps, it was asserted, had no greater legal value than that of endorsing a conclusion at which a court had arrived by other means. The Court stated that:
" But even where the guarantees described above are present, maps can still have no greater legal value than that of corroborative evidence endorsing a conclusion at which a court has arrived by other means unconnected with the maps. In consequence, except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to legal title. The only value they possess is as evidence of an auxiliary or confirmatory kind, and this also means that they cannot be given the character of a rebuttable or juris tantum presumption such as to effect a reversal of the onus of proof."4
The ICJ in Costa Rica V. Nicaragua5 decided on the existence of the caño before 2010, where Nicaragua presented satellite images from 1961 to show the existence of caño, where Nicaragua was dredging in 2010. The court while holding that Nicaragua has not shown sufficient evidence to prove the adverse impact through satellite imagery, stated that:
"In the opinion of the Court, an inspection would hardly be useful for reconstructing the situation prevailing before 2010. The Court considers that, given the general lack of clarity of satellite and aerial images and the fact that the channels that may be identified on such images do not correspond to the location of the caño dredge d in 2010, this evidence is insufficient to prove that a natural channel linked the San Juan River with the Harbor Head Lagoon following the same course as the caño that was dredged."
The Tribunal in the South Sea China Arbitration6 case also took a similar view while stating that satellite imagery is the most beneficial when used in conjunction with other evidences. And the conditions prevailing at the time of the image taken can only be estimated, unless they are confirmed by observations on the ground that coincide.7 Further in Kazakhstan Kagazy Plc and Ors v. Zhunus and Ors,8 the doubt surrounded the cleaning of the Aksai River. Speaking of satellite imagery, the court held that satellite images cannot be considered to be conclusive evidence.
"satellite images are no substitute for a detailed survey and that for that reason he had relied wherever possible on the physical survey of the sites as carried out by Warner Surveys which included "physical measurements on site" taken with "sophisticated measurement equipment" such as ground penetrating radar for establishing underground works..." and "The satellite imagery is, in truth, wholly inconclusive since such changes to the ground which can be detected are at least as consistent with ordinary agricultural activity as with earthworks having been carried out."
Also, in United States of America vs Lea Scott,9 the satellite images failed to show the true picture and status of vegetation. The crops absent in real were visible in images.
INDIAN PERSPECTIVE
There has been a great contrast in opinion on the admissibility of Satellite images in the Indian Judicial setup. Though they are considered as scientific or expert evidence, their validity is often questioned based on the accuracy and reliability. In Re: Construction of Park at Noida Near Okhla Bird Sanctuary and Ors.,10 MoEF called for a report from the FSI based on satellite imagery. The counsel for the applicant relied upon the report of the CCF based on site inspection and the Google image and most heavily on the FSI report based on satellite imagery analysed by GSI application.
On comparing the satellite images with real life images, it was found that the former was inaccurate. Even the revenue records did not match the satellite imageries. The court concluded that Satellite images may not always reveal the complete story and relied on government revenue records to understand the situation. Also, in Pappinisseri Eco Tourism Society vs State of Kerala and Ors.11 and Ansari Kannoth vs. State of Kerala and Ors.,12 it was held that Google Earth gives only a satellite imagery and need not always have regard to the existence of clouds, etc., to give a clear picture of the area. It was not considered as reliable evidence to prove that mangroves were planted in the property in question only in the year, 2004. Similarly in Ratheesh and Ors. vs State of Kerala and Ors.,13 the court held that satellite imagery and toposheets would only show green colour and it would not necessarily prove that it is a forest. It is in the said context that the Apex Court took the view that,
The satellite images only reveal that in October, 2006 there was thin to moderately dense tree cover over about half of the project site. But this fact is all but admitted. The State Government admits to felling of over 6000 trees in 2008. As per Government information on a large tract of land (33.45 ha in area) that was forever agricultural in character, trees were planted with the object of creating an urban park (and not for afforestation).
The committee in The Tata Housing Development Co. Ltd. and Ors. vs The Goa Foundation and Ors.,14 categorically rejected satellite imagery and toposheets as a correct indication for identifying forest stating therein that,
Satellite imagery would indicate nature green cover which would include most of the plantations/seasonal crops, such as cashew, coconut, arecanut, etc., which, according to the Committee, could not be considered for the purpose of classifying a forest. It also rejected the Nature Green Cover Maps as they would include all types of vegetation and of all density and class, including cashew crop which could not be fitted into the criteria taken for identification of forests."
The Hon'ble Court further stated that, "Nature of interpretation means the satellite data gives the natural green cover which includes most of the plantation/seasonal crops such as cashew, coconut etc. For the purpose of classifying "Forest" such growth cannot be considered."15
Further, the court in Satyevir Yadav vs Union of India and Ors16 refused to accept satellite imagery as valid evidence. It held that the satellite image attached to the application, merely shows the area which has been mined, but cannot be evidence of the fact that beyond the legal and valid areas of 3.7275 hectares falling in khasra No. 211/3/2, mining activities have been carried out by the respondent.
CONCLUSION
Based on the above research, it can be inferred that the general lack of clarity of satellite and aerial images make them insufficient as evidence in the court of law. Satellite Images have no greater legal value than that of corroborative evidence and are therefore no substitute for a detailed survey. Since a satellite image may not always reveal the complete story, it is not a correct indicia for identifying the fact.
Footnotes
1. Evidence from Earth Observation Satellites: Emerging Legal Issues, edited by Ray Purdy, Denise Leung, pp. 195.
2. International Law Association (ILA), Berlin Conference 2004, Space Law Committee, pp 12.
3. Frontier Dispute (Burkina Faso/ Republic of Mali) ICJ Reports 1986, para 54-56.
4. Frontier Dispute (Burkina Faso/ Republic of Mali) ICJ Reports 1986, para 56.
5. Certain Activities carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Judgment of 16 December 2015, para 79-81, 206, 207.
6. South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, ICGJ 495 (PCA 2016), 12th July 2016, Permanent Court of Arbitration [PCA].
7. Ibid, para 322-326.
8. (2017) EWHC 3374 (Comm).
9. 342 F.3d 409 (5 Cir. 2003).
10. (2011) 1 SCC 744.
11. ILR 2011 (1) Ker 747.
12. 2011 SCC OnLine Ker 4009.
13. ILR 2013 (3) Ker 827.
14. Para 3, (2003) 11 SCC 714.
15. Para 11, Supra.
16. 2017 SCC OnLine NGT 156.
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