Agniva Das* and Dr. Amol Deo Chavhan**
Keywords: Commercial Satellites – Militarisation – Remote Sensing – Satellite Imagery – Outer Space Treaty
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.
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.
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