Are Commercial Satellite Operators in Danger?
Space is colloquially referred to as the ultimate high ground, meaning it provides tremendous strategic value to the forces that use it. The militarization of outer space is, in many ways, a double-edged sword. On the one hand, utilizing outer space, regardless of military functions, clearly endows the user significant benefits and technological capability. On the other hand, space assets are fragile and can make for enticing targets for militaries seeking to gain the upper hand in a conflict. The strategic value of outer space poses a special problem for commercial operators of space-based assets, they may be a target. Just as ships in international waters were once a fair game in international conflict, commercial operators of satellites may wish to think twice before sending an object over the territory of Russia. The NRO has issued warnings to commercial satellite operators that they may be subject to a Russian attack. (Space News).
This article is split into three main parts, first is an examination of the status applicable to international law concerning aggression in outer space. Next, it entails discussing technology commonly used by states to further their militaristic objectives in outer space. Lastly is an analysis of how the Ukraine conflict challenges the typical commercial operator in outer space.
Current State of International Space Law.
There are three general legal principles at the international level necessary for discussing Russia's potential use of offensive weaponry in outer space during the Ukraine conflict. There are general restrictions in warfare, such as the prohibition on aggression from UN charter article 2(4), and the Geneva Conventions regulate principles about conduct in warfare. The UN charter works to prohibit the use of force by one state against the "territorial integrity" or "political Independence” of another state. There is an exception in the case of self-defense, where force is necessary and proportionate in response to the threat and another for instances of collective enforcement. (UN Charter Article 2(4)).
With the Geneva Conventions, the general obligation of states utilizing force is to distinguish between civilian and military targets. Among other obligations, there is a general obligation to refrain from atrocities that may arise in episodes of conflict. Once a conflict has commenced, regardless of its initial illegality, there continue to be international rules in place that restrict (or at least attempt to) the way belligerents are to conduct their operations. Failure to follow these obligations often constitutes a war crime.
The last instrument relevant to this discussion is the Outer Space Treaty (OST). The OST is rife with language that obliges states to use space peacefully. However, the term peaceful uses have undergone a substantial metamorphosis as state practice has appeared to permit certain types of actions while preserving the doctrine. Activity in outer space must be peaceful, and the OST even goes as far as to prohibit the placement of weapons of mass destruction in orbit. The language by itself does not appear to prohibit weapons that are not considered WMDs. (The Outer Space Treaty, Art III, IV)
An examination of these rules alone would conclude that there can be no legal way under international law to militarize space, as a military function is antithetical to peaceful uses. Thus, there is an apparent discrepancy between what international law suggests countries should do in space and what they do.
However, an unfortunate characteristic of international law is challenging to bind states to rules that often take a considerable amount of time to codify into a customary norm. As outer space is still a new field of exploration, there are sparse bright-line rules concerning appropriate behavior. Even when binding, international rules continue to face enforcement problems, especially when the violator is a UN security council member. What the term "peaceful uses" actually mean is subject to constant interpretation and reinterpretation based on how states behave.
Military applications of Space Technology and their Legality.
As states often serve their self-interests, there has been a tendency to erode the international practice from the international definitions. Despite the language of the Outer Space Treaty, the contemplation that outer space would serve as a warfighting domain or would provide invaluable military assets was contemplated as early as 1980, with Reagan's Strategic Defense Initiative. Taking advantage of outer space requires a high level of technological development but proves to be tremendously valuable to the states that do so successfully. Paradoxically, space assets are so valuable but are hardly built to withstand impacts from space debris, let alone an episode of space warfare.
Satellites are usually fragile objects but are also increasingly relied upon, both in the military and non-military functions. In the context of warfare, this makes them a very enticing target for foreign adversaries seeking to gain a strategic advantage.
Perhaps the earliest use of outer space weaponry is the Intercontinental Ballistic Missile. While not technically a space-based weapon, ICBMs travel along a parabolic trajectory, the apex of which reaches well into outer space. While in space, gravity accelerates the missile's payload to its target, sometimes exceeding the speeds of Mach 3.
Another use of outer space in a military context is the practice of jamming. Jamming is a technique used by militaries to interrupt electromagnetic (often Radio or Microwaves) communications between two or more devices. This interruption of communication renders the equipment that relies on it ineffective, as it can no longer communicate with other receivers. Therefore, jamming a satellite has a deleterious effect on its use in most cases. Jamming for ground-based and even air-based communications is not only legal in the context of warfare but is a standard countermeasure. The benefit of jamming a satellite is that it can be done remotely. Jamming does not require sophisticated rocket technology and provides an inexpensive means to counteract the benefits provided to adversarial satellite users. (icybersecurity.com)
Antisatellite weaponry was recognized as an asset as early as 1980. An anti-satellite (ASAT) is usually a ground-launched missile capable of reaching an altitude high enough to strike a satelliting in orbit. ASAT tests have been conducted by the United States, Russia, and most recently, China and India. Despite their propensity to generate space debris, Anti Satellite Weapon tests have been determined not to violate the principle of peaceful use.
More innovative technology has led to the inception of physically grappling satellites and relocating them to a different orbit. Now, this technology has largely been pioneered by China, but its implications are enormous. Should a satellite from one country ever be removed from orbit by the operation of another could inevitably start satellite races and force states to compete for dominance in outer space. (The Drive).
A brief survey of the current space technologies yields insight into how countries perceive their legality. ICBMs, for instance, were created well before the OST went into effect. Neither international law nor the OST compels states to relinquish space-based weaponry, and compulsion at the international level will more than likely fail. International rules provide a conceptual way of thinking about how conflict ought to be conducted, but in reality, when the very survival of a state is at stake, adherence to international rules is a secondary priority.
International law also imposes certain obligations on states regarding how they conduct warfare. One essential obligation for states is distinguishing between military and civilian targets, which is hard to do in Outer Space, as every object's destruction poses a risk to every other object. The point is that there are many ways states utilize outer space in furtherance of warfare, despite international language surrounding peaceful uses. Countries have continued to develop offensive technology in outer space. International rules are developed through how states practice them, so the principle of peaceful use includes the development of non-peaceful technology.
However, it is unclear where the line rests on the deployment of such technology. So far, all testing done for space weaponry has been towards defunct targets, the testing state already owned. In India, the target for their ASAT test was a dysfunctional weather satellite. A state has not used a space weapon toward the military assets of another State, and it is unclear in which contexts this would continue to be permissible under peaceful uses and the UN charter. For instance, would a state acting in self-defense be permitted to attack an aggressor's space assets if such an attack was proportional and necessary? The UN charter would say yes, whereas the Outer Space Treaty seems to say no.
Despite international obligations, Russia has still attempted to counter the benefit Starlink has provided to Ukraine by attempting to jam Starlink Satellites. This effort was swiftly brought to a halt by SpaceX operators. As Russia has demonstrated a desire to interfere with Starlink and has taken action, the question becomes whether they will escalate. The next step may be something drastic that crosses an international line.
Impact on Commercial Operators.
The United States has warned Commercial operators their space assets might be subject to Russian attacks. This would make sense for Russia in a strategic setting, as there is usually a profound interplay between commercial and governmental space activity. As such, it is difficult for a foreign adversary to distinguish between what space object is being used for the military and which object is being used commercially because no government will likely be transparent toward that information with regard to an adversary.
While Russia would violate the Geneva Convention by deliberately targeting a commercial operator, there is often an exception to this rule where civilians are directly engaging in hostile acts. This puts operators like SpaceX considerably more at risk, as Russia would appear to be someone who justified at the international level if Starlink was assisting the Ukrainian military.
Consequently, there is little recourse any satellite operator has in such an event, and it is likely to impact the insurance market for payload launches into orbit as premiums will have to account for an added risk of military actions. Russia has also made clear that assistance rendered to Ukraine in the form of military action to met with severe consequences. An added layer of complexity comes from the response of certain commercial actors. SpaceX, for example, has provided internet service to Ukrainians via Starlink. Starlink, therefore, positions itself higher on Russia's target list should the Ukrainian conflict escalate into space.
As any typical satellite operator will want to be wary, their assets may serve as a target in the wake of geopolitical turmoil, and this may be an unfortunate reality should any state actor choose to unravel that thread. In the case of Starlink, The SpaceX operators were swift enough to counteract the effect of Russian jamming, but in the future, jamming attacks on satellites may become more sophisticated and adept to traditional countermeasures. (Fox Business).
A Cold War Call Back
The interplay between public and private interests in input space poses a real danger. Both commercial and governmental interests occupy outer space. Space objects also travel at extreme speeds and can circumnavigate the Earth within a few hours, which makes the entire space environment an already high-risk activity.
Conflict in outer space is fundamentally different from conflict waged terrestrially. There was no physical damage to buildings in the United States when Russia destroyed buildings in Ukraine. The same is not valid for space-based assets. As debris from explosions in outer space has no air resistance, there is nothing to slow down shards of debris on their trajectories. The consequence is a cascade of space debris as more and more objects are destroyed, also known as the Kessler Effect.(Space.com).
The Kessler Effect implicates the presence of every commercial operator in outer space, regardless of whether they are directly attacked or not. The logical end to the Kessler Syndrome is a cloud of useless metal chunks that shroud Earth's orbit, effectively rendering outer space unusable. The Kessler Effect presents a strikingly similar strategic scenario to one observed in the past half-century, Mutually Assured Destruction. Any military official seeking to utilize offensive space weaponry runs into an inevitable strategic problem. On the one hand, the continued peaceful use of space is in everyone's interest to ensure it remains functional. On the other, the ability to destroy adversarial space assets is a precious strategic advantage. The fact that space may be rendered useless for everyone is the kind of deterrence that restricts a military official from launching a nuclear weapon.
The presence of the Kessler effect presents a zero-sum situation in which no state can make use of space if a full-scale conflict plays out. Similarly, in the cold war, the doctrine of mutually assured destruction ensured that either side that resorted to nuclear weapons would not survive the retaliation of the other, so the solution was not to use it. Whether or not this theory will hold for outer remains to be seen. Russia's hesitance to strike space assets despite their apparent ability to do so would offer some hope that there is an understanding that the destruction of the space environment is terrible for everyone.