Military Use of Commercial Remote Sensing Satellites

Agniva Das* and Dr. Amol Deo Chavhan**

Keywords: Commercial Satellites – Militarisation – Remote Sensing – Satellite Imagery – Outer Space Treaty

Background

On 1 March 2022, Ukrainian Minister of Digital Transformation, Mykhailo Fedorov sent out an appeal to most of the world’s commercial satellite companies via Twitter urging them to help Ukraine by providing satellite imagery for military purposes. The Minister urged eight of the world’s leading earth observation satellite companies to provide high-resolution satellite imagery to monitor Russian troop advancements. Companies like Maxar Technologies and Planet Labs have openly published the images to the media, which is how the world has been witnessing the menace and destruction caused by the war in real time. Moreover, on 2 March 2022, Elon Musk in a tweet acknowledged his direct support to Ukraine by promising to provide better internet connectivity by activating the internet terminals of his satellite internet constellation – Starlink. When civilian or commercial satellites are used for military purposes, it raises serious concerns regarding whether the satellites are to be considered as civilian or military assets.

This is not the first time that civilian or commercial satellites have been used during a military conflict for military purposes. Operation Enduring Freedom, alternatively known as the Global War on Terror, was the first instance when the military relied heavily on commercial satellite space assets like high resolution satellite imagery and satellite communications.

Remote sensing has been used as a mode of surveillance for centuries. Even before the First World War, remote sensors have been utilised by attaching them to hot air balloons and flying them over target cities.  Now, however, specialised satellites with variegated capabilities are being used for remote sensing. These include but are not limited to optical satellites, radar imaging satellites, ultraviolet and infrared imagery satellites, and signal intercepting communication satellites. Remote sensing has several advantages over any other forms of reconnaissance as it can provide high-resolution imagery of not only visible light but also other wavelengths of light. This information can be further used for monitoring enemy troop advancements, strategic planning, and tactical threat assessment.

With the explosive growth of science and technology and the reliance of military activities on the same, the demand for better connectivity and higher-resolution imagery was beyond the military’s ability to fulfil with military owned satellite technologies. The biggest military in the world, the United States Military has since then heavily relied on commercial satellite assets for military use.

Since the attacks of 9/11, the United States have dedicated billions of dollars for the renovation of their military satellite technology for the swift utilisation of these assets by the UK, US and Canadian forces in the ‘Global War on Terror’. Infact, in the year 2006 the United States National Space Policy which was authorised by then President George W. Bush directed all governmental departments and agencies to use, purchase and even modify the U.S. commercial space capabilities and services to the maximum extent to meet the United States Government requirements and make them cost-effective.

Legalities

Such instances have raised further questions regarding the legalities of the militarisation of commercial or civilian satellites, especially with respect to remote sensing, which has been widely debated in recent years. 

The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, also known as the Outer Space Treaty, provides certain general provisions for the peaceful exploration and use of space for the benefit and in the interests of all countries on the basis of equality and in accordance with international law. However, it does not provide any specific provision to tackle the legal problems surrounding remote sensing.

It is certainly difficult to understand what kind of military applications fall under activities that are “for the benefit and interest of all countries” as mentioned in the Outer Space Treaty, as any military activity by one country can be seen as an act of aggression by another country. Article I of the Outer Space Treaty, thus, creates a loose obligation that all activities should not be ‘harmful’ in the general sense as opposed to being ‘beneficial’. However, it does not provide any clarity on whether placing commercial remote sensing assets with military capabilities in earth orbit is in the common interest of all countries.

Article III of the Outer Space Treaty dictates that all outer space activities shall be conducted in accordance with international law which shall include the Charter of the United Nations and it shall be in the interest of maintaining international peace and security and promoting international cooperation and understanding. Since the United Nations Charter overrides rights or obligations under any other treaty, the Outer Space Treaty must be read in consonance with the United Nations Charter. In the interest of maintaining international cooperation, Article 2(4)  of the United Nations Charter provides that countries should refrain from threatening and using force against the territorial integrity of any country, or in any other manner inconsistent with the purposes of the United Nations.

Article IV of the Outer Space Treaty prohibits placing into orbit any objects carrying nuclear weapons or any other kinds of weapons of mass destruction and seeks the complete demilitarisation of celestial bodies. However, when read in unison with the United Nations Charter, it can be understood that no restrictions are imposed on any other military activities like remote sensing or satellite communications.

Article IV further dictates that the Moon and other celestial bodies shall be used for ‘peaceful uses’ by all State parties. Fortification, setting up military establishments and testing of weapons are strictly forbidden. What the Outer Space Treaty fails to address is the clear meaning of ‘peaceful uses’ and what kinds of activities fall under this definition. Moreover, the provision provides for peaceful use of the Moon and other celestial bodies but fails to mention that outer space as a whole is ought to be used for peaceful purposes and not only for celestial bodies.

The question that arises here is whether using military capabilities like remote sensing of other countries by using commercial assets violates or infringes the rights or territorial integrity of those countries. If we were to consider the principles of air and maritime law, it is clear that reconnaissance or espionage is permissible on the high seas but not in the territorial waters or the territorial airspace of countries targeted for surveillance.

The Principles Relating to Remote Sensing of the Earth from Outer Space (the “Remote Sensing Principles”) which was adopted by the United Nations in 1986 creates more confusion in this regard as Principle I of the same states that “remote sensing activities by countries shall be conducted to improve natural resources management, land use and the protection of the environment.” This provision leaves room for narrow interpretation that remote sensing shall only be conducted for limited civilian purposes and no military applications for remote sensing shall be allowed.

A better understanding is provided under Principle IV which states that activities are to be undertaken keeping in mind the rights and interests of the sensed country and in accordance with international law. Principle XII further directs the sensing country to provide access to all primary data and the processed data to the sensed country on a non-discriminatory basis and on reasonable cost terms. However, there is a continuous debate regarding the ambiguous nature in which the words ‘non-discriminatory’ and ‘on a reasonable basis’ have been used in the provisions.

The Principles on Remote Sensing also obligate states to undertake remote sensing activities in consonance with norms of international law and state responsibility, therefore the Principles on Remote Sensing act as the basis for states to be held accountable for their actions and also creates obligations for them under the international law framework. On the other hand, the recent rise of non-state actors who have increasingly begun to be drawn into the space race means that Principles in their current form are not extended to them. Further, the rapid ascension of private entities into the commercial satellite spaces also creates a new challenge for the existing framework which is not only not designed to encompass such non-state actors but also does not take into consideration their involvement in military conflicts. The lacunae in this regard needs to be addressed keeping in mind the changing dynamics, especially in light of recent developments.

Conclusion

Lawful remote sensing should be a matter of consent and consultation. Any military espionage using commercial assets with respect to remote sensing should not be considered lawful as it infringes the rights and interests of the sensed countries. It is surprising that most countries do not consider remote sensing by other countries for military purposes to be unlawful. The majority of countries which possess capabilities to use remote sensing technologies for espionage and reconnaissance are the ones with vast wealth and tremendous military capabilities, this may be one of the reasons why unlawful remote sensing is still ubiquitous in the present day. A combined reading of Article I, III and IV of the Outer Space Treaty tells us that the Outer Space Treaty only creates a loose obligation on all State parties who are to conduct activities for the benefit and interest of all countries, which shall be done in accordance with the international law in the interest of maintaining international peace and promoting international cooperation and that it shall be done exclusively for peaceful purposes.

Principles IV and XII of the Remote Sensing Principles 1986, are small steps toward the right direction as they make it mandatory for countries to have the prior consent of the sensed country before undertaking any remote sensing activities and provide all the primary data concerning the sensed country in a non-discriminatory and cost-effective manner.


*4th year BA., LLB(H) student at National Law University and Judicial Academy Assam

**Associate Professor of Law, National Law University and Judicial Academy Assam

Can Space Tourism co-exist with Space being turned into a War Zone?

Karl Grossman*

Keywords:   Outer Space Treaty – PAROS Treaty – Peaceful purpose – Space Doves – Space Force

The push to turn space into a war zone could spell goodbye to space tourism.

The space tourism drive that is underway, led by billionaires Jeff Bezos, Richard Branson and Elon Musk is seen as only a start. Meanwhile, there’s the push, led by the United States, to turn space into a war zone—and this, despite the Outer Space Treaty of 1967 that sets space aside for peaceful purposes. As the then U.S. President Donald Trump declared in 2018 while advocating for formation of a U.S. Space Force, “it is not enough to merely have an American presence in space. We must have American dominance in space.”The following year, he signed the National Defense Authorization Act of 2020 establishing the Space Force as the sixth branch of U.S. armed forces and said: “Space is the world’s newest war fighting domain.” The Space Force, Trump said, would “help” the U.S. “control the ultimate high ground.”  Then, at the unveiling of a Space Force flag at the White House, Trump said: “Space is going to be…the future, both in terms of defense and offense.”

Trump’s successor, U.S. President Joe Biden, has not rolled back the U.S. Space Force. Several Democratic members of the U.S. House of Representatives last year introduced the No Militarization of Space Act that would abolish the U.S. Space Force. The prime author of the legislation, Representative Jared Huffman of California, in a statement, called the Space Force “costly and unnecessary.” 

The measure got nowhere. That was not surprising considering that most Democrats in the U.S. House of Representatives and Senate and nearly all the members of the Republican Party voted for the National Defense Authorization Act of 2020 providing for the Space Force’s formation. Thus, the U.S. Space Force is moving forward.

Last year, Space Force requested a budget of $17.4 billion for 2022 to expand its reach as reported by Air Force Magazine.  Space Force also aims to fund more than $800 million in new classified programs.“Guardians” is the name adopted by the U.S. Space Force in 2021 for its members.

In 2020, the Space Force received its first offensive weapon: satellite jammers. The satellite jammers can be used to interrupt any satellite communication and can hinder warning systems designed to detect attacks from the US. Soon afterwards, the Financial Times’ headline was: “U.S military officials eye new generation of space weapons.”

As to the impacts of war in space, Bruce Gagnon, coordinator of the Global Network Against Weapons and Nuclear Power in Space, in an interview in 2021 said:

In 1989 during one of our campaigns against NASA plutonium launches [NASA’s launching of plutonium-powered space probes], we had a rally at the Kennedy Space Center in Florida, and our keynote speaker that day was Apollo astronaut Edgar Mitchell, one of the moonwalkers. And he came and said if there is one war in space, it’ll be the one and the only. He said because we will create so much space debris or space junk from all the destroyed satellites and things like that in space that there would literally be a minefield encircling the planet – he called it a piranha-laced river—and we would not be able to get through. A rocket would not be able to get off this Earth through that minefield. So, it’s insane to think about having a war in space.

Gagnon has also spoke of how space warfare would mean activity on Earth would immediately shut down as cell phones, ATM machines, cable TV, traffic lights, weather prediction and more are all hooked up to satellites.

Alexander Chanock, while pointing to the generation of space debris resulting from warfare in space, noted that space weapons would produce an immense amount of space debris. Chanock, then a candidate for a law degree, now a legislative counsel in the US House of Representatives, wrote that, “The Fear is that destroying in space could generate extremely dangerous debris with a long orbital life.”

Chanock quoted Dr. Joel Primack, professor of physics and astrophysics at the University of California, Santa Cruz, stating that “the weaponization of space would make the debris problem much worse, and even one war in space could encase the entire planet in a shell of whizzing debris that would thereafter make space near the Earth highly hazardous for peaceful as well as military purposes.”

The blueprint for international cooperation in space has been the Outer Space Treaty of 1967 which sets aside space for peaceful purposes and declares it a “global commons.” It was put together by the United States, United Kingdom and the former Soviet Union and has wide support from nations around the world. As Craig Eisendrath, who as a young U.S. State Department office was involved in the treaty’s creation, explained, the aim of the Outer Space Treaty was to de-weaponise space before it got weaponized to keep war out of space altogether.

The Outer Space Treaty of 1967 prohibits placement “in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies.”  For decades there has been an effort to extend the Outer Space Treaty and enact the Prevention of an Arms Race (PAROS) treaty, which would bar the placement of any weapons in space. China, Russia and Canada have been leaders in seeking passage of the PAROS treaty. But the United States—through administration after administration, Republican and Democrat—has opposed the PAROS treaty and effectively vetoed it at the United Nations. A rationale for the U.S. Space Force has been that it is necessary to counter moves by Russia and China in space, particularly development of anti-satellite weapons. This is what a Cable News Network report in 2021, titled “An Exclusive Look into How Space Force is Defending America,” centrally asserted. There was no mention in the six-minute-plus CNN piece of how China and Russia have been leaders for decades in the push for PAROS, and how China and Russia in recent times have reiterated their calls for space to be weapons-free.

Most recently, the U.S. concern about Russia and China moving into space militarily was heightened by Russia in November 2021 using an anti-satellite weapon to blow up a defunct Soviet intelligence satellite that was launched in 1992. Dr. Paul Robinson, professor of public and international affairs at the University of Ottawa, in an article on RT, views that the Russian effort may be intended to bring the United States to the negotiating table by highlighting the space vulnerability.

The history of U.S. interest in space warfare includes the Strategic Defense Initiative scheme of the U.S. President Ronald Reagan during 1980s, dubbed “Star Wars,” predicated on orbiting battle platforms with on-board hypervelocity guns, particle beams and laser weapons energized by also on-board nuclear reactors.

A U.S. Space Command was set up in 1985. The motto of one of its units, the 50th Space Wing is “Master of Space”. The unit is now a component of the U.S. Space Force.

A January 2022 article in Air Force Magazine called attention on this aggressive stance of the U.S. Space Force. Alexander Chanock also expressed concerns on this issue in his article published in the Journal of Air Law and Commerce. While highlighting the contrasting views on the U.S. developing space weapons, he refers to “Space Doves”, who are against space weaponization, especially Nina Tannenwald. Tannenwald wrote that in the long run she believes that the best way to protect American interests in space would be through stability of the rule of law, rather than through unilateral assertions of military power. She asserts that US should promote a transition to a regime that consists of mutual restraint and benefit in space.

However, Chanock, in his piece, stated: “Although space doves have many valid arguments for reducing the danger of space weaponization, in reality, it is unlikely that their ideas will prevail.” He noted: “The U.S. Congress has consistently rejected any bill that tries to ban the use of space weapons.” He cited bills that “sought to ban space weapons but failed” including the one introduced in 2001 by Representative Dennis Kucinich of Ohio which “did not garner a single co-sponsor.”

Internationally, since the creation of the U.S. Space Force, several nations—including the United Kingdom—have begun to emulate the U.S. in space military posture. “How to halt the space arms race” was the headline of an article in the British publication The New Statesman in 2021. It stated: “This year the UK launched its own space command, with military chiefs acknowledging space as a domain of conflict co-equal with air, land, sea and cyber,” said the piece by Paul Mason.

“We are stuck,” the article concluded. “And while polite verbal fencing takes place at the UN, the major powers of the 21st century are engaged in an unprecedented expansion of military power in space, leaving the vast majority of countries powerless, most of humanity as passive spectators, and the Earth’s orbit increasingly polluted with debris from exploded satellites.”

This is pessimistic forecast need not be. The Outer Space Treaty of 1967 was—and is—a visionary documentary. War on Earth is terrible enough. It must not be brought up to the heavens. This will take continued political will and international pressure—to preserve and extend the Outer Space Treaty of 1967 and its setting aside space for peaceful purposes. Especially in the United States, this will require action at the grassroots because the two major political parties in the U.S. have joined in a bellicose stance on space, supporting it becoming a war zone. Every year, the grassroots organization Global Network Against Weapons and Nuclear Power in Space, founded in Washington, D.C. in 1992 and the leading group internationally challenging the weaponization of space, holds a “Keep Space For Peace Week” with actions around the world. Meanwhile, there are nations around the globe that have, unlike the U.S., adopted a peaceful stance—as reflected in their support for the proposed PAROS treaty.

We must, indeed, keep space for peace. Can space tourism co-exist with space being turned into a war zone? The answer is no. And with a shooting war in space, it will not only space tourism that would be kissed goodbye.


*Professor of Journalism at the State University of New York/College at Old Westbury & Co-founder of the Global Network Against Weapons & Nuclear Power in Space.

Responsibility for Activities in Outer Space

Danny Johansen*

Keywords: Article VI – Outer Space Treaty – Private Entities – State Responsibility –Ultra Vires

Outer space has always fascinated humanity, which continues to be so in the current day. Private entities are looking to outer space as never before with tourism flights(1), space resources extraction,(2) and even space beer.(3) As most of these activities are done in the interest of the private entities instead of the international community as a whole, debate on private activities in space has attained significance. Is space tourism just rich people playing around and destroying the environment?(4) Whether resource extraction on the moon is in conflict with the Outer Space Treaty?(5) These are just a few of the questions that have arisen in this context.

No matter what side one is on in this relevant debate, a fundamental and older question is; to what degree a state is responsible for the acts of private entities?

Outer Space Treaty

Article VI of the Outer Space Treaty(6) by the first look answers this question when it states that, state parties shall bear international responsibility for national activities, no matter whether it is being done by a state organ or by a private entity. It also points out that the state must authorize and supervise the activities of private players.

Article VI is quite a deviation from the normal customary rules of international law for state responsibility, which is found crystallized in the Articles on State Responsibility(7). Under the rules of the Articles on State Responsibility a state will be responsible for internationally wrongful acts if a conduct consists of an action or omission that is both attributable to the state, and is in conflict with an international obligation of the state.(8) If the act is conducted by a private entity, certain criteria must be fulfilled for the act to be attributable to the state.(9) The criteria vary but there must be some sort of connection between the state and the wrongful act of the private entity like the state authorizing or instructing a private entity to do such an act or the state acknowledging such an act as its own.

Attributability in the Articles on State Responsibility operates as a lower limit for fixing responsibility on any state. Private entities engaging in theft, murder or other offenses would face individual responsibility and state wouldn’t be responsible unless the action can be said to be under the authorization or instruction from the state (and thus attributable). When Article VI of the Outer Space Treaty attributes every activity in outer space to the state, the question would arise on the responsibility of states under the Outer Space Treaty for every tort or a crime committed by the private space entities.

Responsible for what?

Some scholars have pointed out that it can be claimed that the duty of the state can be confined to authorization and supervision.(10) Other scholars are arguing that Article VI attributes all actions, and thus responsibility for every action of a private entity is on the state.(11)

While discussing authorization for the actions by the private players, it has been argued that there has to be a lower limit so that an astronaut needing to brush his teeth does not require to ask the national authorization agency for permission.(12) The same can be said for what actions can be attributed to the state. Bin Cheng discussed that the responsibility could have a wide and a narrow interpretation. The narrow interpretation being that the state is responsible for its normal obligations under international law and would also be responsible for actions by private entities as if they were made by a state agency. The wide interpretation would be that the state is responsible for all actions of private entities.(13)

However, even the narrow interpretation of Bin Cheng still offers a broad range of activities that the state may be responsible for. Thus, a heavy burden of responsibility is imposed on the state, which seems to be undesirable. Also the requisite clarity on the authorization and responsibility of the state for private actions is found missing in these arguments.

Article VI does specifically mention that the actions must be in conformity with the Outer Space Treaty, and thus, it does seem obvious that at least any action in conflict with the Treaty would call upon responsibility. A follow-up question could then be: Is the state responsibility limited to authorization and supervision of private entities or does it stretch beyond to cover the breach committed by private entities? This matters in the situation where a state implements laws regulating private entities in outer space, and only authorizes activity in space in conformity with the Outer Space Treaty. If the private entity then goes against the authorization and commits a breach of the Outer Space Treaty, concerns would arise in fixing responsibility as it is unclear whether the state is directly responsible for the breach or for not preventing the breach by the private entity.

Article VI is famously a compromise between the ideology of the USA and the Soviet Union, where one party wanted free access to space for private entities, and the other wanted to only allow the states to carryon activities in outer space.(14) So it is probably safe to say that the intention was to ensure that the states took the activities of private entities in outer space serious, and that they therefore were directly responsible for the action. However, under the changed circumstances arising out of the increased private space activities, it stands as a problematic proposition.

Application of Public International Law

Article III of the Outer Space Treaty states that all space activities must be in conformity with the public international law. Many states have applied this in their authorization process stating that the activity must not conflict with their international obligations.(15)  Sensible as it may be that international law applies to space; however, this is where we find the aggravation of the problem. Many criminal activities performed by private entities may fall within the ambit of breach of international law upon attribution to the state.

Many different situations could arise. Would every possible murder on the moon be classified as a state assassination? Would theft in a space hotel be attributed to the state? If this would be the primary interpretation of Article VI of the Outer Space Treaty, most states would probably halt private entities from going into outer space. Such a harsh interpretation would confine the humanity to Earth, which is unwise from any perspective.

Solution?

What then would be the minimum threshold for attributing private activities to the state? The Draft Articles on State Responsibility does contain the concept of “Ultra Vires”.(16) When a state agent or organ exceeds authority, the state shall still be held responsible for the actions, if the agent acts in the capacity it has been appointed. So, if an agent has been empowered to exercise governmental authority, the state has responsibility, unless it is clearly outside the function the agent is entrusted. This is of course not directly applicable to the situation at hand as we are dealing with private entities. The essence of the principle could however be used. When an authorized private entity performs activities in outer space, it can be said to wield some kind of state authority, and all of its actions under authorization can be attributed to the state.

It could then be said that if the private entity acts outside the scope of the authorization it should be examined if the entity at least still acted within the capacity of the authorization. This should at least sort out many of the actions done entirely in a private capacity, like for example, murder, theft, extortion etc. Whereas the actions in violation of essential principles of the space treaties, for example, an action contrary to the non-appropriation principle, using nuclear weapons or weapons of mass destruction, contaminating the outer space and celestial bodies and such, would trust responsibility upon the state. Thus, the use of the principle of Ultra Vires would ensure a much needed balance in the application of responsibility norms for private space activities.

References:

* Ph.D. Fellow, Legal Institute, University of Southern Denmark.

(1) Space.com, ‘Space Tourism’ available at
<https://www.space.com/topics/space-tourism> last visited 28 November 2021.

(2) Mike Wall, ‘Trump signs executive order to support moon mining, tap asteroid resources’, available at
<https://www.space.com/trump-moon-mining-space-resources-executive-order.html> last visited 28 November 2021.

(3) Hanneke Weitering, ‘Space beer, anyone? Hops flying on SpaceX’s private astronaut mission Inspiration4 will be auctioned for charity’, available at
<https://www.space.com/inspiration4-space-beer-hops-auction> last visited 28 November 2021.

(4) Tereza Pultarova, ‘The rise of space tourism could affect Earth’s climate in unforeseen ways, scientists worry’, available at
<
https://www.space.com/environmental-impact-space-tourism-flights> last visited 28 November 2021.

(5) Brooks Hays, ‘New U.S. space mining law may violate international treaty’, available at
<https://www.upi.com/Science_News/2015/11/27/New-US-space-mining-law-may-violate-international-treaty/8751448634436/> last visited 28 November 2021.

(6) The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty)

(7) Articles on Responsibility of States for Internationally Wrongful Acts (ASR), 2001.

(8)ASR, Art. 1

(9) ASR, Art. 8 – 11

(10) The Max Planck Encyclopedias of International Law, ‘Outer Space, Liability for Damage’, Pedrazzi, Marco, 2008, Para 2.

(11) For example, Ibid, Francis Lyall & Paul B. Larsen, Space Law: A Treatise (Burlington: Ashgate Pub. Limited, 2009) p. 60.

(12) Testimony of Laura Montgomery Ground Based Space Matters Before the Senate Committee on Commerce, Science, and Transportation Subcommittee on Space, Science and Competitiveness, Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space. May 23, 2017, Russell Senate Office Building. p. 5.

(13) Bin Cheng, Studies in international space law (Oxford: Clarendon, 1997) pp. 633 & 634.

(14) Frans G. Von der Dunk, National Space Legislation in Europe: Issues of Authorisation of Private Space Activities in the Light of Developments in European Space Cooperation (Netherlands: Brill, 2011) p. 3.

(15) Stephan Hobe et al., Cologne Commentary on Space Law – Outer Space Treaty: КёльнскийКомментарийККосмическомуПравуДоговорПоКосмосу (Berlin: Berliner Wissenschafts-Verlag, 2017) p. 417.

(16) ASR Art. 7.