The Russia-Ukraine War and the Space Domain

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| Mar 14, 2022

Space Domain

As demonstrated by this symposium, every domain of the ongoing Russia-Ukraine War presents critical legal questions. This post focuses on the potential consequences of the war on the space domain.

Although Russia continues to play a vital role in the development and operation of outer space activities, the invasion of Ukraine and the international response to that invasion are likely to have long-lasting implications on Russian activities in outer space. Additionally, recent technological developments pose challenging questions on the application of international law to the space domain during armed conflicts.

This post examines three aspects: (1) the space-related law of war implications of private actor involvement in the conflict; (2) Russian threats against the International Space Station, and (3) potential effects of sanctions on the Russian space program.

Private Company Provision of Satellite Internet Support to Belligerents

Prior to Russia’s invasion of Ukraine, recent practice suggested the Russian military would quickly move to degrade Ukrainian internet access. Although some Ukrainian government web services, as well as portions of the financial sector, have been disrupted  from distributed denial of service operations, Ukraine has yet to experience widespread internet outages. Nevertheless, persistent fears of massive outages remain. To combat those fears, Ukraine’s Vice Prime Minister, Mykhailo Federov, requested on the third day of the conflict that Elon Musk “provide Ukraine with Starlink stations.” Just two days later, Federov tweeted a picture of the arrival of Starlink stations along with a statement of his appreciation.

A Starlink station is the ground receiver connecting to a network of over 2,000 low earth orbit small satellites providing internet access at broadband speeds. While there are no indications that Ukraine is using Starlink for military purposes, the potential exists. Director General Dmitry Rogozin of Roscosmos, Russia’s space agency, criticized the move. Rogozin intimated that Starlink might no longer be considered “purely civilian,” questioning the status of such satellites should Ukraine use them for purposes related to the armed conflict. As the United States has expressed a clear desire not to become a party to the conflict, there are also potential neutrality issues as well.

In a previous post for this series, Wolff Heintschel von Heinegg provided an excellent overview of the foremost neutrality issues present in the conflict. Here, we build on that analysis to look specifically at the potential military use of Starlink by Ukrainian forces. Prof. von Heinegg lays out several provisions of the Convention (V) Respecting the Rights and Duties of Neutral Powers in Case of War on Land (Hague V) potentially relevant to belligerent support by private actors.

The first is Article 7 of Hague V, which provides that a neutral State is not required to prevent the “export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general of anything which can be of use to an army or fleet” by private actors. Although this preclusion of obligation might seem to settle the Starlink neutrality question for the United States, it is complicated when the support is provided in the space domain. This is because Article VI of the Outer Space Treaty’s (OST) Article VI places international responsibility and requirements for authorization and continued supervision of non-governmental space activities on the State.

Because Starlink is licensed and “supervised” by the United States, it is unclear whether, and for what purposes, this OST requirement might convert responsibility for Starlink service from  a private company to that of a State. The application of Article VI of OST could override Article 7 neutrality law exemptions if the support provided qualifies as export or transport in support of belligerent activities, leading to a potential breach of neutrality by the United States. The same question arises in the event private companies granted Ukraine access to synethetic aperture radar (SAR) to help them track the movement of Russian troops.

Hague V also contains an exemption under Article 8 for the provision of “use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.” Unlike Article 7, this provision applies explicitly to both States and private companies. However, this use of an “apparatus” must be provided equally to all parties to the conflict. Should Russia be impeded from using Starlink services, which is likely under current sanctions, the provision of services to Ukraine could again be viewed as a breach of neutral party obligations by the United States.

The second question raised by Starlink use in Ukraine is the potential qualification of Starlink satellites as military objects. It is important to note that while breaches of neutrality are an internationally wrongful act, they do not necessarily make the offending State a party to the conflict. Should Starlink satellites qualify as military objects, they become targetable under the law of armed conflict. Given the statements of Rogozin and Russia’s demonstrated anti-satellite weapons capability, this is more than an academic exercise. Military objectives include “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Should the Ukrainian government begin using Starlink services in a manner fitting this definition (for example, for military command and control), regardless of their state of registration, these satellites would become legitimate military objectives for Russian forces.

Importantly, should Starlink satellites qualify as a military objective, Russia would then arguably be under an API, Article 57 obligation to take reasonable precautions in attack. If feasible in the circumstances, Russia should request SpaceX terminate the use of Starlink by Ukraine prior to targeting the now-dual use Starlink satellites. The role the Unites States government should play in the decision to terminate Ukrainian use in such a situation is unclear, but it again raises the issue of State responsibility under Article VI of the OST. What is clear is that SpaceX, a private company associated with the United States through its national space licensing laws, has interjected itself into an international armed conflict in a manner that has raised the interest of both belligerents. Given the particular role States play in all space activities, the United States would do well to clarify its position regarding these important questions.

Russian Threats Against the International Space Station

On 24 February, Dmitry Rogozin responded to President Biden’s sanctions announcement (see below) with a series of tweets about the International Space Station (ISS). Rogozin appeared to threaten to shut off the ISS’s Russian-controlled propulsion systems. Such an action could have the effect of the ISS falling to Earth in an uncontrolled deorbit and landing on territory within the United States, Europe, China, or India. Rogozin’s statement is not the first time Russia has threatened similar action, making similar threats in 2014 and 2021. These threats have left many to wonder: can the Russians lawfully do that, and what would be the legal consequences if they did?

Two sources govern the operation of the ISS: international law (principally the four relevant space treaties—the OST, the Rescue Agreement, the Liability Convention, and the Registration Convention—but also the wider body of international law) and the 1998 Intergovernmental Agreement (IGA) among the parties involved with the ISS. These two sources impose four primary duties implicated by Russia’s threatened actions.

First, Article 10 of the IGA imposes a duty on each partner to operate the elements of the ISS they provided in a “safe, efficient, and effective” manner. The OST imposes a similar duty in Article IX to conduct all space activities “with due regard to the corresponding interests of all other States Parties to the Treaty.” Both provisions prescribe a fairly amorphous duty to behave responsibly. Russian termination of the ISS propulsion systems and the ensuing threat of deorbit would breach this duty and violate Russia’s IGA and OST obligations.

Second, in addition to exercising due regard, Article IX of the OST requires State Parties to the Treaty to engage in international consultation before conducting any activity that “would cause potentially harmful interference” with other State Parties’ peaceful exploration and use of outer space. Undoubtedly, deorbiting the ISS would cause such harmful interference for the many partners of the ISS (to include the United States, Canada, Japan, and the European Space Agency).

Third, seven personnel are currently aboard the ISS (four American astronauts, two Russian cosmonauts, and one European Space Agency flight engineer). Article V of the OST declares astronauts as “envoys of mankind” and imposes a duty to render “all possible assistance to the astronauts of other States Parties.” Article 3 of the Rescue Agreement takes this a step further, requiring contracting parties to “extend assistance in search and rescue operations” of personnel of a spacecraft in need of assistance. While the treaties do not contemplate purposefully deorbiting a spacecraft with personnel on board, the provisions’ intent and purpose clearly suggest prohibiting such acts. Additionally, the remainder of international law, incorporated by reference to space activities within Article III in the OST, must also be considered. Intentionally deorbiting a spacecraft with the likely death of those on board and the incidental destructive impact on the territory of a target State is a clear violation of Article 2(4) of the United Nations Charter.

Finally, Article VII of the OST and Articles II and III of the Liability Convention establish a liability framework for damage caused by space objects on the surface of the Earth, in terrestrial airspace, or in outer space. Article II of the Liability Convention provides that a launching State bears absolute liability for damages caused to the surface of the Earth. Liability, therefore, centers on the launching State, defined as the State that launches or procures the launching of a space object or from whose territory or facility the object is launched. This makes sense in the case of single-State space stations or for lone space objects potentially “launched” by multiple States. However, the multilateral nature of the ISS, with multiple modules launched and operated by different States but amalgamated into one combined space station, makes a formal determination of liability extremely complicated.

The IGA does implement a cross-waiver of liability in Article 16, whereby ISS partner States waive all claims against each otherfor damage arising out of “protected space operations.” The cross-waiver, however, explicitly excludes claims for damage caused by willful misconduct. A Russian shutdown of the ISS’s propulsion systems without the permission or consent of the remaining partners would constitute “willful misconduct,” exposing Russia to liability claims from its ISS partner States. To put it all together, should Russia intentionally deorbit the ISS, causing damage to a third-party State, Article IV of the Liability Convention would impose joint and several liability on the ISS member States for the damage. However, the other ISS partner States would have a claim against Russia to recover the damages.

Sanctions Affecting the Russian Space Program

Unprecedented economic sanctions are playing a pivotal role in the international response to the conflict. President Biden announced the imposition of wide-ranging sanctions, including Russia’s military technology sector. Biden claimed that the new sanctions would halve Russia’s high-tech imports and would “degrade their aerospace industry, including their space program.” Yet, despite the announcement, the precise nature of the sanctions likely to affect Russia’s space program remains unclear. At least part of the sanctions regime focuses on denying Russia access to semiconductor chips, which play a crucial role in satellites and other space technologies. Indeed, the market for space-related semiconductors is estimated to grow by a billion dollars over the next five years.

The sanctions imposed by the United States and NATO are unlikely to affect the Russian space program in the short term to a significant degree. Their possible longer-term effects, however, depend on several questions including: the precise nature of the sanctions themselves; how long the ongoing Russia-Ukrainian War lasts, as well as whether (and how quickly) sanctions are reduced or removed should the conflict draw to a close; and whether Russia finds international partners (such as the People’s Republic of China) to increase alternative sources of supply for sanctioned space-related items.

The effect of sanctions on Russian actions, however, has been immediate. Russia has suspended all Soyuz launch cooperation with Europe and withdrawn its approximately 87 Russian employees from the launch facility operated jointly by the European Space Agency and the National Center for Space Studies in French Guiana. Additionally, Russia has suspended business relationships with the private companies of States involved in the anti-Russia sanctions campaign. For example, Russia halted a contracted launch of OneWeb satellites at the Baikonur Cosmodrome, demanding both a guarantee that the satellites would not be used for military purposes and that the United Kingdom completely divest from its shares in the company. Additionally, as of 3 March, Russia cut off the supply of RD-180 and RD-181 rocket engines used by the United Launch Alliance and Northrop Grumman.

Conclusion

Despite the potential costs to space operations, there is little from a legal perspective to hinder the imposition of anti-Russia sanctions or Russia’s counter-sanctions. Despite occasional arguments that sanctions constitute impermissible “collective punishment” on populations, most States do not consider international law constrains the use of sanctions in any meaningful way. As the conflict in Ukraine continues, we should expect continued use of sanctions by both sides. A critical question is how these sanctions will ultimately affect the Russian space program and, more broadly, the space programs of Russia’s former trade partners.

As the Russia-Ukrainian War continues, the questions examined in this post will likely only increase in importance. All sides to the conflict—not only the belligerent parties themselves, but also third States interacting with them—have seen that outer space is a critical part of the economic and actual battlefield. We should expect to continue to see further fallout from the conflict in the space domain.

***

Lt Col Timothy Goines is a Senior Military Faculty and Assistant Professor in the Department of Law, U.S. Air Force Academy (USAFA), and the Director of USAFA’s Law, Technology, and Warfare Research Cell.

Jeff Biller is an Associate Professor of Cyber Law and Policy with CyberWorx, a department of the Office of Research at the United States Air Force Academy (USAFA).

Maj Jeremy Grunert is an officer in the United States Air Force Judge Advocate General’s (JAG) Corps.

 

 

Photo credit: NASA

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