Introduction
The space race is making leaps and advances.But, it has also presented numerous obstacles in maintaining sovereignty and equity while dealing with outer space. Due to dearth of strict regulation and various loopholes in the legal framework, there is a rapid rise in the commercialization of military in outer space that reflects a humongous rise requiring due deliberation. This paper seeks to explore these issues, including the transfer of military activities to private companies, which may give rise to a new period of astro-imperialism. Unchecked behaviours like this can also lead to Kessler Syndrome, a chain reaction of accidents that would greatly increase the risks in space. The dire situation is quite clear from the fact that there are over 500,000 pieces of debris in our orbit, and the number of space objects have increased by more than two times in the last decade.
There are concerns about the use of commercial satellites for espionage and its implications for International Humanitarian Law (“IHL”), due to the tendency of privatising and weaponizing space operations. Owing to the dual use of satellites, it is becoming harder to discern between military and civilian uses of space as corporations take over functions that state armies previously handled. This lack of distinction increases worries about losing state sovereignty and privacy invasion while also creating legal issues. Starlink’s Network was taken over by the Russian Armed Forces raising questions about the infallibility of these private companies’ operational framework and, thus there are multifarious issues of national security and privacy that might arise, raising questions about the liability and accountability of private entities in conflict situations. Using private satellites for intelligence could violate national sovereignties, challenge the neutrality of IHL, and weaken the principle of distinction.
Critical Analysis
Dwindling International Relations Giving Rise to Private Militarization of Space and its Sporadic Regulation under IHL
According to the Outer Space Treaty, it is mandatory for states to grant authorisation to non-government actors for their actions in the outer space. Additionally, the treaty stipulates the need for “continuing supervision” by the supervisory state, as stated in Article VI. However, in the context of the Russia-Ukraine War, it remains uncertain whether the U.S. government has provided any explicit directives to Starlink in relation to the ongoing Russia-Ukraine war.
The utilization of Starlink space systems that serve both military and civilian purposes, presents a unique difficulty in distinguishing between military targets and civilian entities.
According to Article 52(2) of AP I, military targets are defined as entities that, by virtue of their characteristics, position, function, or use, significantly contribute to military operations and whose whole or partial damage, capture, or neutralization, under the current conditions, offers a distinct military benefit. Civilian objects are defined as non-military targets that are protected from being intentionally attacked during armed conflicts, as stated in Article 52 (1) of AP I.
A commercial satellite with dual-use capabilities can be considered a military target if it meets the specific conditions outlined in Article 52(2) of the AP I. These factors include the satellite’s active involvement in military activities and its potential to be destroyed, captured, or neutralized giving significant military advantage, inspite of the civilian uses, purposes, or characteristics.
Under these circumstances, any assault on the dual-purpose commercial satellite would still be subject to the restrictions on random attacks and the norms of proportionality and precautions in attack as outlined in (“IHL”). This raises other concerns, such as whether the entire space system or solely the portion that contributes to military activity can be properly targeted?
Although the registration of objects with clearly defined intended purposes of use can mitigate the challenges posed by the “dual-use” dilemma, aligning this practice with the Registration Convention, which necessitates the specification of the “general function of the space object” is the need of the hour.
Moving on, space systems that are considered entirely military-based are frequently run by commercial firms. This raises the question: can non-military individuals operating a military or commercial space system that aids military operations in an armed conflict actively engage in combat and therefore forfeit their protection under IHL) for the duration of their direct involvement in combat, as stated in Article 51(3) of AP I?
According to the International Committee for the Red Cross Interpretive Guidance, civilians who manage military space systems that support military activities might be seen as actively engaging in warfare if their conduct endangers the military operations or military capabilities of the other side in the war. In order for this to occur, there must be a distinct correlation among their acts and the adverse consequences, and their conduct must be explicitly meant to inflict damage in favor of one party and to the disadvantage of another (belligerent nexus).
According to Article 51(5)(b) of the AP I, the principle of ‘proportionality’ forbids parties involved in a conflict from carrying out an attack that is likely to cause unintentional harm to civilians. This principle recognises that, during the course of armed conflicts, it is often impossible to completely avoid causing unintended injury to civilians and civilian property. However, it establishes a boundary on the acceptable level of unintentional harm to civilians. When preparing, deciding upon, and conducting an attack, it is crucial to carefully consider and balance the potential harm to civilians and civilian objects, both direct and indirect, against the expected military advantage.
Returning to the vulnerable components of a dual-use space system that can be targeted, it is crucial to consider the proportionality evaluation. This assessment encompasses not only the potential unintentional harm to civilian objects, but also the anticipated repercussions for civilians on Earth if the civilian application of this dual-use space system is compromised.
Furthermore, the principle of ‘precaution’ requires individuals to take preventive actions both during an assault and to mitigate the consequences of an attack. According to Article 57(1) of AP I and Rule 15 of IHL, parties engaged in armed conflict have a continuous obligation to guarantee the safeguarding of the civilians and civilian property throughout attacks.
Precautionary measures that are important before and during an attack include selecting appropriate means and methods of warfare as outlined in Article 57(2)(a)(ii), Article 57(2)(a)(iii) and Article 57(3) of AP I to the Geneva Conventions, read with IHL Rules 17, 18, and 21 respectively.
Consistent with the regulations, in light of dual use satellites, it is necessary to select means and techniques of warfare, whether they involve physical force or not, that only impact the payload intended for military goals and not other payloads intended for civilian use. Nevertheless, it is impractical to individually target the military payload or choose an alternative objective.
Another complex issue related to the dual-use of space systems is whether armed forces are permitted to utilize civilian space systems for military purposes during armed conflicts, considering the principle of taking precautions contrary to the consequences of attacks (“passive precautions”). According to Article 58 (c) of the AP I and CIHL Rule 22, The parties engaged in a war must make every effort to protect the civilians and civilian property under their control from the repercussions of attacks.
One of the requirements to fulfil this commitment is stated in Article 58(a) of AP I, which compels parties involved in the conflict to make every effort possible to relocate civilian objects that are under their control away from military targets. This requirement is further supported by IHL Rule 24. The specific and practical preventive measures are constantly chosen based on the specific circumstances. One could argue that it is necessary to plan and prepare for such precautions during times of peace. Does this suggest that the utilisation of dual-use objects in an armed conflict is illegal?
Kessler Syndrome – A Rise in Collisions due to Overcrowding in Outer Space due to Dual Use of Satellites Employed in militaristic Activities
As commercial satellites engage in military activities, the space militarization raises another concern about the dangerous overcrowding in space resulting in space debris. The space debris is lethal to various other satellites which are essential for the functioning of civilians on earth. Thus, this needs to be considered while formulating strategies to counter war in the realm of outer space.
The principle of proportionality as highlighted in Article 51(5)(b) of the AP 1 is interconnected to the formation of space debris as they can have a consequential effect on the environment of outer space in the orbit where the debris is formed. The propensity of damage increases with objects belonging to civilians and neutral states due to collisions.
Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques Articles I and II, IHL Rules 43, 44, and 45, and AP I Articles 35(3) and 55(1) all fall within this category and regulate the protection of environment during conflicts falling within the ambit of IHL.
It is also necessary to examine the wreckage from such an attack in light of the aforementioned responsibility. The notion of “due regard” as highlighted by Article IX of the OST, reinforces States to balance their obligations with respect to space operations and the obligation to reduce and limit the amount of production of space debris.
Antarctic Treaty as a Blueprint for Peaceful Space Collaboration
The space domain is no longer exclusive to the founding space-faring states, namely the United States, Russia, and the developing global power China. Additionally, it is leading to a rise in the militarization of space, sometimes referred to as a ‘arms race’. Several countries, such as the USA, UK, and France, have established new military commands and armed forces specifically dedicated to space operations, such as the Space Command and Space Force. Furthermore, in 2019, NATO officially designated space as a domain for conducting warfare.
Addressing military and weapons in relation to outer space appears intrinsically paradoxical. In December 1962, the UNGA unanimously approved the XVIII resolution acknowledging the shared interest of humanity in the advancement, investigation, and use of outer space for non-violent purposes. These words have similar ambitions as those stated in the Antarctic Treaty a few years before. The primary distinction lies in the fact that this treaty explicitly outlines the proscription of armed operations, whereas the 1962 resolution did not. Consequently, two different understandings of the term “peaceful” have arisen: one advocating for a total prohibition of all armament in space, while the dominant perspective does not support total restriction.
Article IV of OST duplicates nearly exactly Article I of the Antarctic Treaty.
However, there are two disparities that appear to undermine the OST in comparison to the Antarctic Treaty: The phrase “for peaceful purposes only” has been modified to the seemingly more stringent “exclusively for peaceful purposes.” The use of this phrasing may have been intended to create a more explicit differentiation between the requirement for “peaceful use” in all areas of outer space and the obligation for “exclusively peaceful use” specifically for celestial bodies only and it does not include in its ambit outer space per se leaving a wide room for negative interpretation. The second distinction is highly notable in the more restricted framework of the OST. It involves the omission of the phrase “inter alia,” which holds great significance in legal agreements. It converts an unrestricted list into a restricted one.
The Antarctic Treaty System serves as a promising model for initiating genuine collaboration among scientists and engineers, provided that political, military, and strategic concerns can be partially left aside.
Corporate Criminal Liability for International Wrongs
Corporate criminal liability can hold the company accountable for its involvement in armed conflict. Once the UN Security Council examines violations of International Humanitarian Law (IHL), the sanctions it imposes can have a significant and far-reaching impact on corporations, even those not directly implicated in the specific IHL violations targeted by these sanctions, as demonstrated in the Bosphorous Airways case.
In addition, contemporary domestic legal systems are increasingly imposing liability on corporations for their participation in armed conflicts. A notable recent example is the Lafarge case, which involves prosecution of former company executives for their complicity in international crimes encompassing participation in war crimes, crimes against humanity, financing of a terrorist organisation, deliberate endangerment of lives, and enslavement. In this significant case, the French Supreme Court held the corporation vicariously liable for crimes that are committed by their own employees on their behalf. In the context of ICL prosecutions, there may arise a future issue in precisely defining the term ‘representative’ or entity that acts on behalf of the business. This definition is crucial in assessing the corporation’s liability. However, it partially lowers the standard for proving corporation liability once the individual’s responsibility has been proven.
Moreover, the Swedish Lundin case pertains to the accountability of Swedish corporate entities for the harm inflicted during Sudan’s oil disputes. Lundin Petroleum SA, a Swedish oil firm, will face the consequences of financial disadvantages and a monetary penalty, which are the closest types of punishment for corporate criminal culpability according to Swedish legislation. The forfeiture claim relates to the whole financial gain obtained from the oil extraction activities carried out by Lundin while operating in Sudan.
Commercialized military in outer space poses a formation of a phenomenon of astro-imperialism instead of outer space being utilized by one and all which goes against the foundation of the outer space’s categorization as a territory of global commons.
As commercial interests increasingly intersect with military uses in space, the dearth of comprehensive legal oversight becomes troubling. This concern is particularly worrying with the possible militaristic use of satellites which were designed and designated for civilian purposes. This lacuna can be addressed by developing threshold mechanisms to determine when a civilian satellite can be deemed a military object under Article 52(2) of Additional Protocol I of Geneva Conventions.
Conclusion
There various grey zones and loopholes in international law which need to be addressed at the earliest about whether non-military individuals operating a military or commercial space system that aids military operations in an armed conflict actively engage in combat and therefore forfeit their protection under IHL for the duration of their direct involvement in combat, as stated in Article 51 (3) of AP I ? Second, whether the entire space system or solely the portion that contributes to military activity can be properly targeted? This ultimately leads us to the crisis of whether the utilisation of dual-use objects in an armed conflict is illegal.
Considering this, it is crucial to evolve our space governance to include stringent regulations that delineate the line between civilian and military usage of space assets. This would ensure that space remains a peaceful, accessible resource, preventing the misuse of satellites and averting the potential of a Kessler Syndrome scenario, where the debris from satellite collisions leads to further collisions, thereby endangering the ecosystem of outer space.
This article is a part of the Showcase Pieces Series.
Students, Symbiosis Law School, Pune
