Space Privateers or Space Pirates? Armed Conflict, Outer Space, and the Attribution of Non-State Activities
Famously, George Clemenceau, Prime Minister of France at the end of the First World War, quipped that “generals always prepare to fight the last war, especially if they won it.” Such flaws of perspicacity, of course, are not limited to generals. After all, as Nobel Prize-winning physicist Niels Bohr once mused, “prediction is very difficult, especially about the future.”
No wonder then that, when back in 1945 the Charter of the United Nations was concluded, it mainly focused on efforts to prevent a Third World War from arising along the lines of the Second. Most specifically, the massive armed attacks against other sovereign States and their territories that had initiated the war triggered the baseline prohibition of Article 2(4) of the Charter. The UN Charter quickly came to represent the core of globally applicable international law on using or threatening the use of armed force in inter-State relations.
Since then, however, two major developments occurred in the geopolitical context that were not addressed in any detail by the Charter: first, the fundamental involvement of non-State actors in conflict situations; and second, the importance of outer space in armed conflicts. More recently, moreover, these developments have started to become intertwined, giving rise to questions about their legal parameters and ramifications. For example, are crucial contributions from private operators to an armed conflict involving outer space legally attributed to a belligerent or not? Should they be considered space privateers, somehow licensed by States to undertake their attacks, or space pirates, legally unable to hide behind a State’s broad back?
Such overarching questions should preferably be solved before the lack of legal clarity contributes to more and more nefarious armed conflicts.
The Fundamental Involvement of Non-State Actors in International Armed Conflicts
As for the first paradigm change, the world into which the UN Charter was born—and principally addressed international armed conflicts, as opposed to non-international ones—was still ruled by sovereign States, in particular when it came to the threat or use of armed force. As an obvious corollary, it was a fundamental remit of international law that States could only be held directly internationally responsible for their own official State acts and could only be held responsible, at best indirectly, as part of “due care” for acts of individual persons or non-governmental entities, as further elaborated by the International Law Commission in its Articles on State Responsibility.
Since then, however, next to sovereign States, freedom fighters and guerillas, and later also terrorist groups, evolved into important actors in international conflicts, as the main focus of the Charter and the law of armed conflict further developed on the basis thereof. Meanwhile, other non-governmental organizations such as the International Committee of the Red Cross to some extent represented an effort of civil society to counteract the heinous effects of such armed conflicts.
A wealth of literature has been produced on this development and its consequences for the legal framework applicable to the initiation and conduct of armed conflicts. At this point it should suffice to conclude that somehow the State-based approach of international law to the appearance of new actors was adapted, without however fundamentally changing that approach. The law of armed conflict for instance now includes non-State actors engaged in international armed conflicts to the extent they somehow resemble regular armed forces with command structures and suchlike, and then endows them with many rights and vice versa subjects them to many of the obligations and responsibilities traditionally reserved to States.
At the same time, State responsibility for non-State usage of armed force also under the law of armed conflict remained dependent upon the extent to which the latter could be attributed to the former, by either de jure or de facto adoption, as evidenced for instance by the International Court of Justice judgment in the 1980 Hostages case.
The Fundamental Involvement of Outer Space in International Armed Conflicts
As for the second paradigm change, in 1945 humankind’s experience with the realm of outer space had been limited to science fiction writings and scientific investigation of outer space from afar, as opposed to actually undertaking activities there. Consequently, outer space had not been part of the discussion on the UN Charter and its role in preserving international peace and security. Even after Sputnik-1’s launch in 1957, showcasing the military potential of space technology, in a sense this awareness remained ephemeral.
The two superpowers of the day, the United States and the Soviet Union, agreed on the baseline premise that outer space should remain open to all States and, as much as possible, used for peaceful purposes, for instance by prohibiting any “colonization” and militarization of celestial bodies, the stationing or orbiting of weapons of mass-destruction, and an explicit reference to the UN Charter as the cornerstone of international peace and security. This agreement was enshrined in the 1967 Outer Space Treaty, notably Articles I through IV, which rapidly gained widespread ratification, including by all major spacefaring nations. Still today, it is hailed as providing the basic legal framework for all humankind’s activities in outer space.
Unfortunately, the perpetual global discourse on armed conflicts and applicable law now has come to include outer space. The 1990-1991 Gulf War has often been hailed as the first “space war,” although outer space only played an ancillary role in this conflict. Recently, however, suspicious close-proximity operations by Russian satellites, the expected race for lunar resources headed by the United States, Russia, and China, the Russian threat to allow the International Space Station to crash in Europe or the United States, and the Russian threat to station nuclear weapons in outer space all have increased worries about possible future major international conflicts involving the threat or use of armed force playing out both in outer space itself and down on Earth.
Private Actors in Outer Space and Their Involvement in International Armed Conflicts
Such dangerous prospects are exacerbated by the increasing involvement of private sector operators in military operations also in outer space. So far, most visible example concerns the use of Starlink satellites in the context of Ukrainian self-defense against Russian aggression. Though Starlink is a purely private, commercial operator, not with Ukrainian but with U.S. nationality, Russia for some time made veiled threats that it considered disrupting or even destroying the satellite infrastructure because of its usefulness to Ukraine.
The realities of outer space may, for the time being, have avoided any execution of such threats. It is far from easy to disable or destroy enough satellites to substantially cripple a multi-satellite-system, and debris resulting from destruction may also damage Russian assets. Moreover, apparently, Russia has itself tried to use seized Starlink terminals for its own efforts.
Yet, it seems just a matter of time before the same types of questions pop up again in even more dangerous and destructive contexts, whether as part of the Russia-Ukraine conflict or elsewhere. What if private consortia like the infamous Wagner Group chose to set their eyes on space infrastructure as a target for attacks, or on space technologies as a tool to achieve their nefarious goals?
This indeed raises profound questions as to what extent general approaches under the law of armed conflict to the fundamental involvement of non-governmental entities in military conflicts would simply be “imported” into the legal framework for space activities as per Article III of the Outer Space Treaty. Would a Russian claim that, by allowing Ukraine to use the Starlink infrastructure—and, at least originally, even being given access almost for free—that infrastructure would present a legitimate target for armed, or alternatively cyber, attacks be correct? And would then, vice versa, the United States be entitled to consider such attacks as legally justifying counterattacks, whether of an armed or of a cyber nature?
Here, a major complication follows from the mixed character of many space operations. These are international both in the classical inter-State sense and in a private sector-context, as well as hybrid in terms of encompassing both civil and military applications.
With a view to the classical approach of the law of armed conflict, tanks, battleships and fighter jets are (usually) clearly distinguishable from buses, yachts and civilian aircraft. Moreover, each tank, battleship and fighter jet is (usually) clearly attributable, in terms of legal responsibilities, jurisdiction and control to a State. Few non-governmental entities as of today possess such heavy, expensive, and highly technological hardware. Normally, moreover, the actions taken by the personnel using such hardware are attributable to a single State only, the sole possible exception being when this is deployed by NATO or another military coalition. Thus, rules on the distinction between military and non-military targets or between belligerent States and neutral States have developed at a considerable level of precision, with an abundance of State practice and opinio juris making customary international law largely the subject to debate on the fringes only.
The reality of outer space, however, is radically different. The distinction between space technology that is only useful for perfectly peaceful purposes and space technology that is only useful for causing major death and destruction is habitually impossible to make.
In addition, many major satellite operations involve more than one State and/or its private sector operators. Modern satellites offer dozens of transponders for a variety of individual uses. Some of them therefore may be used for use of force operations by a belligerent in a particular conflict, either directly or through its private sector entities, while others may be used by that same State for perfectly peaceful activities (sustaining energy grids, supporting hospitals, or mitigating natural disasters). Others still may be used by third States or their private sector entities for activities that might, or might not, have much to do with that conflict. Attacking and destroying such a satellite takes discussions on proportionality and collateral damage to a whole new level.
And it also brings us back to the question of legal attributability: should private space technologies with a crucial impact on armed conflicts be attributed to relevant States under the classical law of armed conflict and neutrality further to the ILC’s Articles on State Responsibility, given its focus on terrestrial environments, or by contrast, under the lex specialis of space law?
Attribution under Article VI of the Outer Space Treaty
Article VI of the Outer Space Treaty, uniquely, fully equates private activities to State activities for the purpose of a State’s international responsibility to ensure the compliance of any relevant activities in outer space with space law. It states,
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
This clause was the result of a thoroughly negotiated compromise between the free-market-oriented United States and the then-communist Soviet Union, whereby the former did not want to exclude the possibility for the private sector to engage in space activities while the latter did not want to potentially have to deal with such private sector entities and insisted on holding relevant States directly responsible.
The quite comprehensive scope and impact of this clause is not always clearly understood. Authors have, for many years now, debated the scope of Article VI’s approach to attribution of non-governmental space activities to States, by focusing on the concept of national activities in space. Many of those tended to limit that scope, by requiring for instance fundamental active involvement of a State in a private space activity before the former’s international responsibility could be invoked.
The truth is, however, that the proper interpretation is ultimately not decided by authors, expert as they might be. Authoritative treaty interpretation under international law, whether following Article 31 of the 1969 Vienna Convention on the Law of Treaties or as a matter of customary international law which results from the combination of State practice and State perception, ultimately is a matter indeed of States. And the overwhelming majority of States that have so far implemented the obligation under Article VI of the Outer Space Treaty to authorize and supervise private space activities by establishing national space legislation have interpreted the attribution trigger of national activities in outer space as, at a minimum, referring to space activities undertaken by nationals, whether individuals or legal entities, regardless of where these are undertaken, as well as to such activities undertaken from national territory, regardless of who exactly undertakes them.
And certainly, regardless of whether the State concerned was involved substantially in any other manner, no additional prerequisite of State procurement, control, authorization, supervision or other substantive involvement is imposed. The mere nationality of the activity as per those undertaking it and/or the territory from which it is undertaken suffices for triggering this special version of State responsibility. This is, moreover, in line with the strong suggestions of paragraph 2 of UN General Assembly Resolution 68/74 of 2013.
While some might argue that this only applies to non-military, commercial activities, as most national space law was driven by a desire to accommodate, control, and benefit from commercial activities, the major thrust of the Outer Space Treaty and the main intention of the two opposing superpowers back in 1967 clearly addressed the potential involvement of outer space in armed conflicts as evidenced by especially Article III and its focus on international peace and security.
Most national space legislation by that token also, one way or another, addresses the potential involvement of non-governmental entities in the realm of national security, arms control, and armed force usage. Thus, there can be no argument that at least back in 1967, it was intended to encompass non-governmental entities in the regime of the Outer Space Treaty to the hilt. The suspicions on the part of the Soviet Union that private enterprise was merely a veiled tool for U.S. capitalist-imperialist intentions (to use the parlance of the day) had been crucial to the compromise that Article VI represented.
Where Do We Stand Now?
As already indicated, these developments now raise major questions with a view to military tensions playing out in outer space. In this scenario, “space law” and “the law of armed conflict” may offer different solutions regarding the exact legal consequences of the involvement of non-governmental entities (not accidentally, the precise term used by Article VI of the Outer Space Treaty) in the context of the threat or application of armed force. To what extent would the direct equation of private space activities to a State’s space activities also hold in the context of an armed conflict, given that the Outer Space Treaty avoided dealing with questions of actual armed conflict in outer space? This raises the question whether that regime would apply in an unabridged fashion if such conflicts would (threaten to) arise? Can Starlink activities, so far at most indirectly and occasionally contributing to armed attacks, or more forcefully (pun intended) any potential activities in outer space of a future equivalent of the erstwhile private Wagner Group be equated with activities of the respective States most closely aligned to them for the purpose of application of the law of armed conflict? Or should they be treated as self-standing space activities not engaging any State responsibility?
While the Woomera Manual presents the first thorough analysis of this conundrum resulting from the fundamental involvement of both outer space and private operators in international armed conflicts, ultimately the solutions have to come from State practice, opinio juris and authoritative State interpretations. If armed conflicts resulting from different views on the extent to which private space operations in a military context are to be avoided, however, clarity on these issues needs to be established as soon as possible.
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Professor Dr. Frans G. von der Dunk holds the Harvey and Susan Perlman Alumni / Othmer Chair of Space Law at the University of Nebraska-Lincoln’s LL.M. Programme on Space and Telecommunication Law since January 2008.
Photo credit: Unsplash
