Elon Musk is always ready for a fight. Even with a nation as powerful as Russia. But SpaceX supplying its satellite internet service to Ukraine has opened up a whole new can of worms.
SpaceX CEO Musk says that Starlink signals are being jammed.
About the same time, Russia’s space agency chief Dmitry Rogozin declared: “Offlining the satellites of any country is actually a casus belli, a cause for war.”
So, could the clash between Musk’s commercial enterprise and Moscow’s military activities become a cause for escalation?
It depends, says space law expert Duncan Blake. Space isn’t lawless, he says. But it is very murky. And it’s a legal and ethical challenge particularly relevant given Australia’s accelerating civil-military space launch and satellite program.
Like most legal matters, there are issues of degree, intent and physical harm.
International law is relatively clear in defining an “armed attack”. It’s based on the equivalence to a physical armed force seizing and holding a piece of strategic territory. Both electronic warfare (jamming signals) and cyber warfare (hacking functions) can cross that line.
“Hopefully, neither the Russians nor anyone else is stupid enough to interfere with missile warning satellites because that would send a very bad message,” says Blake. “At the other end of the spectrum is interfering with something like a Superbowl broadcast. It’s enraging. It’s annoying. But it’s not an ‘armed attack’.”
It would, however, be subject to international treaties and agreements. Electronic spectrums are regulated. Cybercrime is a matter of national law. Both are inherently hard to enforce, Blake says, and separating the two is getting harder.
Starlink: an attack by Russia would be seen as aggressive
An attack on a commercial Earth-observation or space-awareness satellite would inevitably be seen as aggressive. But disabling a military spy satellite could be regarded as an act of war.
So what if your satellite is both?
“Could it be a legitimate military target?” asks Blake. “Would it be lawful to target this satellite? The answer is yes to the first, maybe to the second”.
For example, the Optus C1 communications satellite has several relay nodes dedicated to Australian military use. The remainder provides crucial communications links across Southeast Asia and the Pacific. Under Article 52 of Additional Protocol I to the Geneva Conventions, anything that offers a significant military contribution through its nature, location, purpose or use is a valid war target.
But, says Blake, there are conditions.
“If you’re going to target something, one precaution that must be taken into consideration is the constant care of the civilian populations. Another one is whether or not there was another target that would achieve the same military advantage without the effect on the civilian population.”
Starlink in Ukraine
Musk is delivering his Starlink ground stations to Ukraine’s front lines. They ostensibly offer satellite broadband services to anyone who cares to use them. That can be for seeking humanitarian aid or medical assistance. It could also be to report Russian military movements.
“You can imagine circumstances where those tests about what constitutes a lawful target might be satisfied from a Russian perspective,” says Blake.
There are few international courts or tribunals equipped to deal with space disputes. The Permanent Court of Arbitration, based in The Hague, is one. It’s the same court that ruled against China’s claim to the Philippines’ islands in the South China Sea. (Beijing ignored the verdict.)
“Obviously, it’d be nice if everybody complied with international humanitarian law, and also the international law on the use of force,” says Blake. “There are consequences for failing to comply. And there are plenty of reasons to comply.”
Ultimately, though, it’s about who you are – and what you want to be.
“People in the military are in the business of killing people and breaking things,” he says. “So what makes us different from criminals who kill people and break things? The thing that makes us different is the rule of law and doing all you can to minimise civilian harm.”
Jamie Seidel is a freelance journalist based in Adelaide.
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