The Preventing Space War Forum earlier this year raised an important question: what role are commercial entities playing in the space domain and what happens if they get involved in a space war?
Dr Stacey Henderson, Senior Lecturer in Law, Flinders University and Joel Lisk, Research Associate, Jeff Bleich Centre
POLICY PERSPECTIVES #5, October 2023 | DOWNLOAD THIS POLICY PERSPECTIVE | doi.org/10.25957/p8wp-6r05
The increasing involvement of commercial actors in space activities raises questions about the extent to which commercial actors might participate, and become targets, in war in space. This was one of the issues of concern raised during the Preventing Space War Forum, which brought together experts from government, industry, and academia in an open dialogue about the threats posed by war in space. This has also recently been highlighted in relation to the Russian invasion of Ukraine, with Elon Musk refusing to activate the Starlink satellite network in Crimea on the basis that this would have made Starlink complicit ‘in a “major” act of war’.
War in space
Space has been used for military purposes since the beginning of the space age. In 1958, the United States’ Air Force launched the world’s first communications satellite – Project SCORE – and the Corona photo-reconnaissance program was used to gather imagery for intelligence purposes from 1960 to 1972. Today, space is very much a dual-use domain with space assets such as GPS used for both military and civilian purposes. Militaries now frequently enter into contracts with commercial space actors to provide services, including communications and imagery, for use in times of war and times of peace.
The phrase ‘war in space’ may bring to mind scenes from popular culture, such as Star Wars, Battlestar Gallactica or The Expanse, but a war in space is not likely to resemble anything like that for the foreseeable future. States, including the United States and Australia, have declared space to be a ‘war fighting domain’, which is more about the use of space assets and technology to enable and conduct combat activities in other domains, such as land, sea and air, than fighting in space itself. For example, space assets can be used for communication, reconnaissance, intelligence collection, and navigation – all of which facilitate military operations on Earth. The use of commercial space assets during armed conflict raises questions about whether these assets are legitimate military objectives, and thus can be lawfully targeted.
Article III of the Outer Space Treaty confirms that international law generally applies to space as a domain. This includes international humanitarian law which governs conduct in war. Article 52(2) of Additional Protocol I, which is customary international law, provides the definition of a military objective. It states that:
military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.
Growing exploitation of outer space’s potential has aligned with the rapid commercialisation of the operating domain. Following from significant investment in private sector space capabilities, commercial actors are now upending government approaches to space services. While government operated space surveillance and reconnaissance satellite systems remain a key component of many military capabilities today, private satellite systems are augmenting these capabilities, and for some States that do not have their own space assets, the private sector provides new opportunities for intelligence collection, connectivity, and insights from the domain many regard as the ‘ultimate high ground’.
With this steady increase in commercial actors engaged in space activities and the provision of commercial services to States and militaries, the question becomes whether space assets of a commercial actor can become a legitimate military objective in times of conflict. In the context of the Russian invasion of Ukraine, Starlink has been described as changing the war, making an effective contribution to Ukraine’s military action defending its sovereignty against Russian aggression – especially when Ukrainian forces were faced with denial of service attacks on existing terrestrial and space based communications systems. However, the destruction or neutralisation of a single Starlink satellite would not offer Russia a definite military advantage, as it would not result in a significant disruption to the system, and destruction of all Starlink satellites in low Earth orbit would likely be disproportionate to the military advantage obtained from their destruction. However, this result may be due to the characteristics of the constellation, and a different conclusion could be reached for satellites in smaller constellations or no constellation, where the destruction or neutralisation of the satellite would have more than a de minimis effect.
The risks for commercial actors
Commercial actors may find that they are deprived the use of their space assets, even if those assets are merely disabled and not physically destroyed, if they are considered to be a legitimate military objective. Commercial actors will need to be alert to the risk of making their space assets a target when providing services to the military for use during armed conflict. As noted during the Preventing Space War forum, this risk is increased for Earth-based services such as rapid launch, where terrestrial launch facilities may be neutralised through physical destruction, such as cratering a launch pad, providing significant advantage to an opponent in depriving the adversary of the capacity to launch space assets for use in armed conflict. Unlike destruction of an entire constellation of satellites, destroying launch facilities would be considered to be proportionate and would result in a definite military advantage by removing the capacity to launch. This risk is something that should be factored into risk management plans by commercial space actors when providing services to militaries for use in combat operations. The Preventing Space War forum raised this concern and ventilated that many of the risk management strategies involve more traditional legal devices such as indemnities in favour of commercial entities that might suffer losses because of the services they provide to governments – presenting a situation whereby contractual measures might be a service provider’s only protection.
The Preventing Space War Forum was held in Washington DC in May 2023. The Preventing Space War Forum was organised by the Interplanetary Initiative of Arizona State University with assistance from Flinders University.
Find out more about the Preventing Space War Forum and project by heading to: www.preventingspacewar.com
Dr Stacey Henderson is a Senior Lecturer in Law at Flinders University
Stacey researches and teaching in areas including the protective capacity of law, the responsibility to protect (R2P) and the use of measures less than force to help to protect populations. Stacey also has extensive experience in governance and law for outer space and space technology.
Joel Lisk is a Research Associate with the Jeff Bleich Centre.
His research focuses on the ways that nations approach the regulation of technology, with a focus on digital technology and outer space. Joel writes on topics in areas such as space regulation, competition and consumer protection law and data protection.