Introduction
Over the past decade, space systems have experienced increasing levels of interference from a variety of sources.Footnote 1 Interference with space systems can take the form of jamming, spoofing, piggybacking, or cyber interference.Footnote 2 There are many classified and unclassified examples of interference with space systems by both state and non-state actors (NSAs). For instance, in 2007, the Liberation Tigers of Tamil Eelam (LTTE), based in Sri Lanka, pirated and jammed an Intelsat satellite transponder signal.Footnote 3 The LTTE then used this hijacked signal to broadcast propaganda transmissions for two years.Footnote 4 Interference like this is becoming an increasing problem with serious political, social, military, and economic consequences.Footnote 5 It poses a growing challenge to satellite operators and can impede military, civil, and commercial uses by disrupting space-based applications, costing system operators millions of dollars.Footnote 6 The emergence of NSAs interfering with space systems also poses challenges to the application of existing international law and raises questions of whether and how states, as key actors and subjects in international law, can be held responsible and liable for NSA actions.
In 1967, with the adoption of the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), states were recognized as the pre-eminent actors in space and international law because it was states that traditionally accessed, used, and explored space.Footnote 7 However, as financial and technological barriers to space launch and the use of space have decreased over time, space has become more accessible to NSAs (including commercial companies, civil organizations, academic institutions, and private individuals and entities, including terrorist and extremist organizations (TEOs)).Footnote 8 The emergence of NSAs as important space actors was not envisioned during the drafting of the major space treaties, which now form part of the international space law (ISL) regime.Footnote 9 Further, the increased accessibility of space means that NSAs with nefarious motives can leverage space technologies to conduct illicit activities and interfere with state and other NSA interests.Footnote 10
When considering responsibility and liability for interference with space systems, there are multiple intersecting normative regimes at play, including domestic law, ISL, the International Telecommunication Union (ITU) regime, and the law of state responsibility.Footnote 11 The Outer Space Treaty establishes the basis of the ISL framework, and the Convention on International Liability for Damage Caused by Space Objects (Liability Convention) expands on this by setting out absolute and fault-based liability provisions.Footnote 12 Concurrently, the ITU regime sets out a detailed framework governing radio communications and aspects of state responsibility, which is also applicable to space systems. Meanwhile, the law of state responsibility applies where responsibility flows from an internationally wrongful act attributable to a state. Often viewed separately, it is unclear how these frameworks interact, particularly where NSAs interfere with space systems during peacetime.Footnote 13
This article will begin by outlining the extent of global dependence on space systems, the wide range of NSAs operating in the space domain (with a focus on TEOs), how space systems function, and the various types of interference that can affect them. It will then consider the ISL framework, the ITU regime, the law of state responsibility, and how these legal regimes interact. Finally, the article will analyze the application of these frameworks to NSAs by looking at three scenarios: space-based jamming from one space asset to another, ground-based orbital interference, and ground-based terrestrial interference. Each scenario will focus on intentional interference with space systems by NSAs under these regimes to illustrate that both individually, and collectively, these legal regimes are inadequate tools for affixing state responsibility and liability in such cases. In other words, this article will demonstrate that there are gaps in the international legal frameworks that can be exploited by NSAs interfering with space systems, challenging efforts by states to enforce “good” behaviour by NSAs.
Space Actors and Global Dependence on Space Systems
Before exploring interference by NSAs, and to better appreciate the impact of such interference, it is important to understand the extent of our global dependence on space systems. Since the first satellite launched in 1957, more than sixty states and twenty organizations have operated one or more space-based assets.Footnote 14 There are currently over 1,738 operational satellites orbiting the Earth.Footnote 15 As the number of space actors increases, so too does the world’s reliance on space systems, applications, and technologies to conduct day-to-day governmental, business, and private tasks.Footnote 16 Space-based platforms have a wide variety of uses, such as communications, environmental and weather observation (which is used for environmental-change monitoring and weather forecasting), navigation, and scientific research (from cellular biology to astrophysics).Footnote 17 Many countries are dependent on space systems for the operation of much of their critical infrastructure: “Almost all of the world’s aircraft, maritime vessels, land-transportation networks, energy grids, financial transactions” and military systems are highly dependent on space systems to operate.Footnote 18 Satellites are also used for Internet connectivity, mobile phone use, and other telecommunications, allowing increased, cost-effective connectivity in remote locations with limited infrastructure.Footnote 19 As such, space systems and the evolution of space technologies have fostered development by promoting economic growth, alleviating poverty, and predicting and managing disasters.Footnote 20
Beginning with the first Gulf War in 1991 — often considered to be the “first space war” due to the extent that space systems were used to enable operations — militaries have increasingly relied on space-enabled applications and capabilities to support the conduct of their operations.Footnote 21 Space systems support a variety of military uses at the tactical, operational, and strategic levels. For example, satellites are used for operations, navigation, communications, command and control systems, intelligence, surveillance and reconnaissance, and the guidance of weapons.Footnote 22 On the ground, soldiers use satellite radios to communicate, and satellites control and receive real-time video feeds.Footnote 23
Over the years, civil and military uses of outer space have become intertwined as both sectors have become highly dependent on space-based applications and technologies.Footnote 24 Numerous satellites are considered to be “dual use,” as they often host multiple payloads that can support both civilian and military space applications.Footnote 25 The purpose and operation of satellites differ between civil and military uses. Civilian satellites tend to be more technologically advanced to maximize signal strength over large areas,Footnote 26 but they lack security and encryption in order to reduce cost and weight,Footnote 27 rendering them more vulnerable to interference than military satellites.Footnote 28 Interference with dual-use space systems is problematic for both civilian and military users as they are relied on for everything from dispatching emergency services to supporting military operations.Footnote 29
WIDE RANGE OF NON-STATE ACTORS USING SPACE SYSTEMS
The multitude of NSAs operating in the space domain adds a layer of complexity to applying state responsibility regimes.Footnote 30 NSAs can include international governmental organizations (for example, the European Space Agency), international organizations (for example, the ITU), non-governmental organizations,Footnote 31 domestic and multinational corporations (such as commercial, telecommunications, and remote-sensing companies), rebel groups, TEOs, civil society organizations, academic institutions, and individuals.Footnote 32 This article will focus on TEOs, a particular subset of NSAs. Many TEOs use space-based technologies to facilitate the conduct of their operations, in the same way that militaries use space systems.Footnote 33 In addition to conventional uses, NSAs might also use small satellitesFootnote 34 or ground-based equipment to leverage space systems to interfere with the transmissions and operations of other space systems, which can cause a degradation, disruption, or denial of services to users.Footnote 35
The issue of NSAs using and interfering with space systems is challenging because international law generally, and space law and the law of state responsibility specifically, are based on regulating the actions and interactions of states.Footnote 36 NSAs are generally not subject to international law, with the exception of international humanitarian law and international criminal law, which give rise to narrower forms of responsibility.Footnote 37
HOW SPACE SYSTEMS WORK
To understand how interference occurs, it is important to appreciate how space systems function. Space systems comprise the physical elements launched into space, their associated ground infrastructure, and the transmissions travelling wirelessly between them using the electromagnetic spectrum.Footnote 38 The satellite in space is known as the “space segment,” and the transmission and data reception facilities on Earth are known as the “ground segment.”Footnote 39 Electromagnetic transmissions flow between these segments and other space systems via uplinks, downlinks, and intra-satellite signals (see Figure 1).Footnote 40 Transmissions between space and the ground segments operate by line of sight and avoid signal conflict through the use of allotted frequencies and orbital slots in certain orbits, which de-conflict the electromagnetic spectrum and operations in space, minimizing unintentional interference.Footnote 41
Figure 1. Example diagram of space asset transmissions
Interference with Space Systems
Space systems are vulnerable to both intentional and unintentional interference.Footnote 42 Interference can occur because of physical damage to the space or ground segments (kinetic) or the impairment of the electromagnetic spectrum (non-kinetic), presenting a “dual threat” that can cause disruption or denial of service, degradation of capabilities, deception, or destruction of the space system.Footnote 43 Intentional and unintentional interference with space systems takes many forms, and its effects range from the temporary interruption of information flow, to the degradation of system efficiency, to the complete shutdown of the segment or system. Intentional interference with satellite transmissions by states and NSAs is on the rise.Footnote 44
As introduced above, there are two broad types of threats to space systems: kinetic and non-kinetic. Kinetic interference involves physical damage (achieved by means such as cyber interference or directing other space objects or direct ascent projectiles into a satellite), including the destruction of ground-based links that relay transmissions or control satellite position (potentially rendering a satellite uncontrollable).Footnote 45 Kinetic interference in space is also problematic because, if carried out against the space segment, it can create additional debris that can propagate, and damage or destroy, other critical space systems.Footnote 46 By contrast, non-kinetic interference does not cause physical damage to a system but, instead, deceives, degrades, or denies the system; this type of interference includes jamming, spoofing,Footnote 47 lasing,Footnote 48 and cyber action.Footnote 49 This article will focus on non-kinetic interference.Footnote 50 An example of non-kinetic interference by a state occurred in 2005 when Libya jammed a number of international satellites to cease transmission of a program discussing human rights issues in Libya.Footnote 51 This resulted in widespread disruption of services, including broadcasts by CNN International and BBC World, and disruption of US military communications in the Mediterranean.Footnote 52
Non-kinetic interference can be either space based or ground based. Space-based interference occurs when a space object interferes with another system, while ground-based interference, illustrated by the LTTE example, emanates from the Earth.Footnote 53 While it is possible to conduct space-based intentional interference, the ability to do so falls mainly within the capabilities of states, as it is costly and difficult to orchestrate.Footnote 54 Space-based interference most often occurs in a geostationary orbit;Footnote 55 however, it is often difficult to determine whether it is intentional or unintentional, illustrating the challenge of attributing responsibility to an actor for a particular event.Footnote 56 It is unlikely that space-based interference would be conducted by NSAs because it would be prohibitively expensive and technically complex to orchestrate, whereas ground-based interference is much easier and cheaper to effect.
There are two types of non-kinetic ground-based interference: orbital and terrestrial interference (Figures 2 and 3).Footnote 57 Orbital jamming transmits a conflicting signal towards a satellite from the ground or from another satellite, disrupting all of the signals on that frequency within the whole satellite footprint.Footnote 58 Terrestrial jamming occurs at a specific place on the Earth near a communication node or ground station; it can be easily conducted using inexpensive and accessible equipment, and it affects a limited geographic area.Footnote 59 States and NSAs commonly engage in terrestrial interference, which is easy and inexpensive to undertake.Footnote 60 It is often difficult to determine the cause of a disruption and whether it was intentional or accidental, as disruptions might be attributable to operator error, equipment error, equipment degradation, inadvertent misuse, poorly coordinated frequency spectrum use, or naturally occurring phenomena (that is, space weather or solar flares).Footnote 61
Figure 2. Example diagram of orbital interference
Source: “Satellite Jamming in Iran: A War Over Airwaves,” Small Media (November 2012), online: <https://smallmedia.org.uk/sites/default/files/Satellite%20Jamming.pdf>.
Figure 3. Example diagram of terrestrial interference
Source: “Satellite Jamming in Iran: A War Over Airwaves,” Small Media (November 2012), online: <https://smallmedia.org.uk/sites/default/files/Satellite%20Jamming.pdf>.
In 2015, there were more than 260 cases of US transmissions being jammed between the satellite and ground station.Footnote 62 Interference disrupts space applications critical to the functioning of everyday life and costs commercial operators and end-users millions of dollars annually.Footnote 63 Commercially, short-term costs include revenue and customer loss, increased personnel and system-repair costs, interference protection costs, and detection system costs.Footnote 64 Long-term costs include a degraded reputation as a reliable provider, resulting in lost investments and future profits.Footnote 65 For militaries, a lack of dependable access to space applications diminishes operational effectiveness.Footnote 66
Finally, it is estimated that thousands of new satellites will be launched in the coming years — from mini-satellites to mega-constellations.Footnote 67 If those satellites experience non-kinetic interference, such non-kinetic incidents could have secondary and/or tertiary kinetic effects, as space debris may in turn harm other space systems as it propagates and impacts other space objects.Footnote 68 If this were to occur in a commonly used orbit, such as the low Earth orbit, it could render the orbit partially or fully unusable and cease cooperative programs situated there, such as the International Space Station. Consequently, the increase in the number of space systems operating in a finite number of orbits and orbital slots, and increasing cases of interference by NSAs that could potentially result in space debris and damage to other space-based systems, raise the real likelihood of claims for damages, and highlight the need to better understand how state responsibility and liability are addressed in outer space.
International Legal Frameworks
INTERNATIONAL LEGAL FRAMEWORK FOR RESPONSIBILITY AND LIABILITY IN SPACE
Having described the extent of the global dependence on space systems, the broad range of NSAs involved in space, and how space systems operate and can be interfered with, the remainder of this article will consider the following three scenarios to determine whether and how ISL, the ITU regime, and the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (Draft Articles) could apply.Footnote 69 The three scenarios that are referenced throughout the remainder of this article are: (1) space-based jamming from one space asset to another; (2) ground-based orbital interference; and (3) ground-based terrestrial interference.
Responsibility and Liability Generally
“International responsibility” under general international law “is the necessary corollary of a right,” as “all rights of an international character involve international responsibility.”Footnote 70 It relates to a state’s obligation to supervise activities carried out by the state or “anyone under its legal structure, in accordance with international law.”Footnote 71 International responsibility requires that a breach of an international obligation triggers the responsibility of the implicated state.Footnote 72 Forms of international responsibility can be seen in Article VI of the Outer Space Treaty,Footnote 73 in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement),Footnote 74 in the 1959 Antarctic Treaty,Footnote 75 and in the 1982 United Nations Convention on the Law of the Sea.Footnote 76 Such international responsibility may arise even if no damage or injury is caused.Footnote 77 However, it is mainly concerned with the maintenance of international order over the compensation of victims.Footnote 78
Meanwhile “international liability” refers to a state’s “obligation to compensate another state for any injury that is caused to the people or property of the latter nation.”Footnote 79 Normally, states are responsible for acts attributable to them or directly to their officials acting in an official capacity.Footnote 80 Under ISL, international liability emanates from Article VII of the Outer Space Treaty Footnote 81 and is expanded on mainly in Articles II, III, and IV of the Liability Convention.Footnote 82
In the space context, as will be outlined below, responsibility and liability for actions of NSAs appear to be more expansive than under most other legal regimes and could be extended to states in certain circumstances, which is unusual in international law.Footnote 83
Extraterritorial Application of International Law in Outer Space
Following the first entry of artificial objects into space in 1957, there was an impetus to create international law applicable to outer space. Over the following twenty years, the five core space treaties were drafted to provide a framework for space operations, exploration, and use.Footnote 84 Over time, “space law” developed into a functional grouping of domestic and international rules relating to outer space and the human activity within it.Footnote 85 ISL is part of public international law and goes beyond the five core treaties to include rules that apply to space activities even when space is not referenced.Footnote 86
The 1967 Outer Space Treaty is the main space law treaty around which the rest of the regime was constructed, and certain aspects of the Outer Space Treaty are considered to be reflective of customary international law.Footnote 87 It considers the exploration and use of outer space to be the “province of all mankind.”Footnote 88 It reflects the fundamental principles of: (1) common interest and equitable access to space;Footnote 89 (2) freedom of access to, use of, and exploration of outer space subject to certain constraints;Footnote 90 (3) non-appropriation and the prohibition on claims of sovereignty of outer space and celestial bodies, which is an extension of the common interest and freedom principles; and (4) the applicability of international law to outer space.Footnote 91 Article III recognizes that international law applies in outer space; however, not all general international law principles apply in space.Footnote 92 While the confirmation that international law applies is helpful, the numerous legal frameworks that may interact in the case of interference by a NSA are challenging to unravel. Additionally, various United Nations (UN) General Assembly resolutions, over time, have led to developments in the ISL regimeFootnote 93 and have served to provide guidance on the interpretation of the international law applicable in outer space.Footnote 94
International Space Law Liability Regime
Prior to 1957, international law scholars proposed unlimited liability regimes for damage caused by space objects to persons or property on Earth.Footnote 95 After a series of launches in the 1960s, this construct was advanced by diplomats who were also concerned with codifying an appropriate liability regime, as pieces of falling launch debris threatened significant damage.Footnote 96 In 1962, when the United Nations Committee on the Peaceful Uses of Outer Space began developing space responsibility and liability regimes, various schemes were explored, and the committee recognized the need to balance freedom to peacefully use outer space with reparations for damage due to the dangerous nature of space activity.Footnote 97 From the outset, most states agreed that states had to bear international responsibility for national activities in outer space.Footnote 98 Responsibility applied regardless of whether the activity was considered lawful or was carried out by a state or NSA.Footnote 99
Consequently, grounded by a series of UN resolutions, the Outer Space Treaty and the Liability Convention became the basis of the ISL responsibility and liability regimes.Footnote 100 The drafters of the Liability Convention drew upon other unique regimes involving ships, aircraft, and atomic energy, all of which imposed liability without fault for damage.Footnote 101 Under the Liability Convention, claimants need only prove that damage to an object on the ground or in flight was caused by a space object, and they are not required to prove negligent or wilful misconduct.Footnote 102 This “absolute liability” regime was chosen due to the unique circumstances of space launch, the speed of technological advances, and the variety of possible mission circumstances.Footnote 103 This regime was subsequently referenced by the International Law Commission (ILC) when drafting the Draft Articles.Footnote 104
The Outer Space Treaty provides that the “appropriate state” will bear international responsibility for “national activities” carried out in space by states or NSAs.Footnote 105 As a result, states are required to authorize and continuously supervise those activities to ensure they abide by ISL and their international obligations generally.Footnote 106 The scope of what is considered to be “national activities” is not clear, and scholars have varying opinions on the matter.Footnote 107 A commonly asserted interpretation is that the provisions automatically impute all private activities where harm is caused to the state.Footnote 108 This approach differs from the rules on attribution under the law of state responsibility as reflected in the Draft Articles.Footnote 109 Additionally, states must retain a registry of the space objects launched and retain “jurisdiction and control” over them.Footnote 110 Consequently, an incident may implicate multiple states with varying domestic regulations in the requirement to authorize and supervise space activities of NSAs,Footnote 111 creating confusion and possibly over-regulation, and undermining investment.
UN General Assembly Resolution 59/115 advocates for states to consider enacting and implementing national laws to authorize and facilitate the supervision of space activities of NSAs under their jurisdiction, and states have adopted differing approaches to defining their jurisdiction.Footnote 112 The United Kingdom’s Outer Space Act uses personal jurisdiction, which applies to all nationals, natural or commercial.Footnote 113 The United States’ more expansive Commercial Space Launch Act applies to launch activities, launch site operation, American citizens, and any person within the United States.Footnote 114 In addition to outlining the scope of authorization and supervision, these national laws provide indications of state practice, such that more expansive domestic law may establish, over time, as other states enact space regulatory regimes, a broader conception of state responsibility, resulting in a desire to mitigate risk associated with NSA activities in space that could result in liability for the implicated state.Footnote 115 Under the liability regime, launching states are internationally liable for damage to “natural or juridical persons” by space objects that occurs “on the earth, in airspace or outer space.”Footnote 116 In the Liability Convention, a “launching state” is defined to be “a state which launches or procures the launching of a space object” or “a state from whose territory or facility a space object is launched.”Footnote 117 Some argue that this conception of a launching state effectively imposes “personal jurisdiction” over individuals, corporate persons, or businesses having nationality in order to attach liability where territorial jurisdiction does not apply.Footnote 118
To further define key terms used in the Liability Convention, a “space object” includes “component parts of a space object as well as its launch vehicle and parts thereof.”Footnote 119 “Damage,” which is the premise of liability,Footnote 120 is defined as “loss of life, personal injury or other impairment of health; or loss of or damage to property of states or of persons, natural or juridical, or property of international intergovernmental organizations.”Footnote 121 The Liability Convention uses broad terms, applicable to a variety of technologically evolving space objects, which could also encompass interference causing disruption to space systems.Footnote 122 While there are no publicly known instances of interference directly causing injury or death,Footnote 123 a claim could potentially be advanced under the Liability Convention where interference renders emergency notification or commercial air traffic control systems ineffective or disrupts financial transactions,Footnote 124 resulting in chaos, panic, and violence where the loss is sufficiently quantifiable.Footnote 125 It is notable that outside the space law context the World Intellectual Property Organization considers that satellite transmissions are property and therefore subject to proprietary rights.Footnote 126 However, the Liability Convention appears to contemplate only physical damage caused by a space object,Footnote 127 which requires that the causal link must be “sufficiently direct” to establish liability.Footnote 128 Such a sufficiently direct causal link may be hard to establish where it is difficult to attribute interference and will become more challenging as the number of space actors and methods of interference increase.Footnote 129
Where space-based interference is alleged to have caused damage (Scenario 1), an analysis must be undertaken to determine where the damage occurred (that is, the surface of the Earth, the aircraft in flight, or another location) to indicate whether the absolute liability or fault-based regime would apply. Finally, the “reparation” regime, as with general international law,Footnote 130 must “restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred.”Footnote 131
There are other features of the ISL liability regime worth noting. Where multiple states are implicated as launching states, joint and several liability flows.Footnote 132 Thus, a state whose persons sustain damage may seek total compensation from one or more of the states involved in the launch, unless other arrangements have been made.Footnote 133 Where the implicated states cannot agree on apportionment, the cost of compensation must be borne equally.Footnote 134 This can be problematic because it places all implicated states on an equal footing, even where their interests and resources differ.Footnote 135 However, this approach does make it easier for claimants to gain access to damages.Footnote 136 Article VI(1) of the Liability Convention attenuates absolute liability where the damage occurs as a result of the claimant’s gross negligence.Footnote 137 Additionally, no exoneration can occur where damage is due to non-compliance with international law.Footnote 138 Finally, joint liability may occur under the Liability Convention where there is a collision of two space objects from two states that harms a third party.Footnote 139
Finally, given that the liability regime applies to damage caused by launched space objects, it appears that the liability regime can only apply to damage caused by space-based assets conducting interference (Scenario 1). This concept is similar to the attribution of transboundary harm as seen in the Trail Smelter and Corfu Channel cases, which were considered in the drafting of the Liability Convention.Footnote 140 It is interesting that the Soviet Union initially argued that a liability convention was not required due to the general international legal principles of responsibility for transboundary harm set out in those very cases. Footnote 141 These considerations were subsequently deliberated by the ILC during the drafting of the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities.Footnote 142 Even though these sources relate to harm emanating from a territory, it is possible that a parallel argument could be drawn for damage caused to a space system based in another state.Footnote 143
The international responsibility and liability regimes provided for in ISL are complex. However, as this analysis has shown, for all of the complexity of the space liability regime, it only appears to have limited application to incidents of space-based interference.
Application of Space Liability Regime in Practice
Since the absolute liability regime only applies to damage caused by “space objects” that are “launched,” it appears that claims can only be advanced where damage from interference emanates from a space-based asset. As highlighted above, space-based interference, which is unlikely to be undertaken by NSAs, may implicate the liability of multiple states for damage caused under either an absolute or fault-based liability scheme. States that are implicated as the “launching state” are responsible for exercising continuing supervision and control over space activities.Footnote 144 If a state fulfils its supervision and control responsibilities, it is only likely to mitigate potential damage and limit its exposure to liability where the fault-based regime may apply.Footnote 145 Since the ISL absolute liability regime only deals with space-based objects causing damage, where there is ground-based interference, even if this interference affects the operation of space assets and/or their transmissions, one is only left with general international law.
Procedurally, where a claim arises, it must be submitted through diplomatic channels, within a limitation period.Footnote 146 Claims are to be advanced by states on behalf of victims.Footnote 147 Multiple victim states may advance a claim, including states whose persons or territory sustained damage.Footnote 148 Finally, a claim does not require the exhaustion of other remediesFootnote 149 and can be brought in multiple fora simultaneously; however, “double reparation” for the same incident would be prohibited under customary international law.Footnote 150
Despite various examples of damage due to space debris,Footnote 151 the Liability Convention has only been invoked once. It was referenced in the claim in relation to an incident that occurred on 24 January 1978, when a Soviet military satellite — COSMOS 954 — crashed into the Canadian north, leaving debris in the Northwest Territories, Alberta, and Saskatchewan.Footnote 152 Initially, Canada claimed reimbursement for the remediation costs from the Soviet Union under the Liability Convention, as portions of the debris were radioactive.Footnote 153 In addition to its arguments under the Liability Convention, Canada also argued absolute liability for high-risk activities, including space activities that used nuclear energy, as a “general principle of international law.”Footnote 154 Canada also claimed that the entry of the satellite into Canadian airspace was a “violation of Canada’s sovereignty,”Footnote 155 appearing to rely on the general international law of responsibility for internationally wrongful acts.Footnote 156 However, due to the remote location, there was no physical damage to people or property in the strict sense.Footnote 157 After three years, the dispute was settled through diplomatic negotiations without reference to the Liability Convention.Footnote 158 The Soviet Union agreed to pay Canada $3 million, half the sum originally claimed.Footnote 159 The COSMOS 954 incident demonstrates the potential complexity of the ISL liability regime for a relatively straightforward incident and how there may be multiple other, and potentially preferable, international legal bases upon which to advance a claim. Finally, since the regime has seldom been referenced since its inception in 1972, it is difficult to fully understand its application or utility in practice or how it may interact with the other regimes set out below.Footnote 160 Thus, it would seem that this regime is in danger of being “overtaken by general international law.”Footnote 161
THE INTERNATIONAL TELECOMMUNICATIONS LAW REGIME
It is impossible to consider legal regimes relating to interference with space systems without considering international telecommunications law. The ITU is the UN technical agency that regulates international coordination of information and telecommunications technologies.Footnote 162 The ITU allocates the global radio spectrum, coordinates and regulates electromagnetic spectrum use, assigns orbital slots to satellites in geostationary orbit, and prohibits “harmful interference.”Footnote 163 Under this regime, “telecommunications” are “any transmission, emission or reception of signs, signals, writings, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.”Footnote 164
“Harmful interference” is “interference with a radio signal that endangers the function of a radio service or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with the ITU Radio Regulations.”Footnote 165 Article 45 of the ITU Constitution prohibits harmful interferenceFootnote 166 and requires that states prohibit it within their jurisdiction.Footnote 167 The prohibition against interference is based on reciprocity among those operating under the ITU regime.Footnote 168 The ITU regime makes no distinction between intentional and unintentional interference.Footnote 169 The ITU Radio Regulations play an important role in ensuring interference-free operations of radio communication services.Footnote 170 They also outline resolution mechanisms where interference occurs, requiring the notification and cessation of harmful interference through bilateral negotiations.Footnote 171 Where negotiations fail, states may choose arbitrationFootnote 172 or dispute resolution,Footnote 173 although there is no compulsory dispute resolution mechanism.Footnote 174 Compliance with ITU settlement provisions where interference occurs relies on goodwill and cooperation, and states have tended to observe the framework voluntarily out of self-interest to preserve spectrum use.Footnote 175 However, where it is difficult to attribute interference, it is challenging to apply mitigation measures. Consequently, the ITU regime is marginally effective in ceasing interference.
Lacking enforcement powers, the ITU has attempted to publicly name and shame states into ceasing jamming emanating from their territory.Footnote 176 In 2012, the ITU declared that violations of Article 45 of the ITU Constitution and Article 15.1 of the ITU Radio Regulations required action by member states, including taking steps against NSAs causing harmful interference within their jurisdiction.Footnote 177 Unfortunately, this did little to reduce incidents of interference. Despite the applicability of the ITU framework to both space-based and ground-based harmful interference, it has been practically ineffective in preventing interference by NSAs with space systems. Further, there is no equivalent of Article VI of the Outer Space Treaty, which requires state authorization and continuing supervision of NSA activities. Since there is no liability under this regime for interference resulting in damage,Footnote 178 the resolution of these issues may be more effectively dealt with as a breach of domestic contractual obligations or under domestic law.Footnote 179 This analysis of the ITU regime reveals a further gap in international law when it comes to addressing space- and ground-based interference by NSAs.
THE LAW OF STATE RESPONSIBILITY
It is generally recognized under international law that states bear responsibility for “internationally wrongful acts.”Footnote 180 However, the applicability of the law of state responsibility to states for NSA activities, particularly those that interfere with space systems, is less clear. The Draft Articles on state responsibility, prepared by the ILC, have become authoritative to the extent that they reflect customary international law and have been cited in various international treaties and judicial decisions.Footnote 181 In 2015, the International Court of Justice (ICJ) noted that elements of the Draft Articles have gained the status of customary international law.Footnote 182
The Draft Articles set out a framework of fifty-nine articles for determining and addressing internationally wrongful acts. The articles are divided into four sections: (1) internationally wrongful acts;Footnote 183 (2) the scope of international responsibility;Footnote 184 (3) the implementation of international state responsibility;Footnote 185 and (4) general interpretive provisions.Footnote 186 The Draft Articles address the responsibility of states under international law, not that of persons, natural or juridical, for an internationally wrongful act.Footnote 187 A state bears responsibility for a breach of an international obligation attributable to that state.Footnote 188
The Draft Articles consider the circumstances whereby organs and agents of the state, as well as those authorized or directed, instructed, or controlled by the state, can be considered to act on behalf of the state.Footnote 189 International tribunals have also played a significant role in articulating and refining the test for assessing the level of control a state must exert over NSAs to determine whether state responsibility flows to it. In Military and Paramilitary Activities in and against Nicaragua, the ICJ applied the “effective control” standard, which considered that the conduct of armed units was attributable to a state if they were operating on the instruction or direction of the state.Footnote 190 In preparing Article 8 of the Draft Articles, which relates to conduct directed or controlled by a state, the drafters considered the Nicaragua case in providing a flexible adaptation of the control standard, such that an act of a person is considered to be that of a state where a “person or group of persons” (that is, the NSA) is acting on the “instructions of, or under the direction or control” of that state.Footnote 191 Article 9 of the Draft Articles considers whether a state can be responsible for an act of a NSA without attribution where the conduct of a person or group exercising elements of state authority, in the absence or default of the official authorities, can be considered an act of state.Footnote 192 This envisages a partial or total government collapse, where a NSA may operate as a default authority.
Where there is an attributable internationally wrongful act flowing from a breach of an international obligation,Footnote 193 this triggers an obligation to cease the unlawful conduct and re-establish the status quo through restitution,Footnote 194 compensation,Footnote 195 or satisfaction.Footnote 196 If the matter is not resolved, then it could be brought before another body for investigation and resolution.Footnote 197 Finally, Article 55 and the commentaries to the Draft Articles discuss the application of the general principle of lex specialis and provide that the Draft Articles do not apply where the existence and conditions for an internationally wrongful act or international responsibility are governed by special international law rules.Footnote 198 Having outlined the key elements of the law of state responsibility, this article will now turn to the application of the three international legal frameworks to the interference with space systems conducted by NSAs.
Interaction: International Space Law, the ITU Regime, and the Law of State Responsibility
The normative regimes discussed above can apply to certain types of interference with space systems and can illustrate instances of norm conflict. Given the probable facts relating to interference by NSAs, especially the fact that the most likely type of interference will be ground based, it is unlikely that any of these frameworks will be straightforward in their application or yield effective results. Some commentators believe that the international liability regime under the ISL automatically trumps the law of state responsibility in relation to an internationally wrongful act and that liability under the ISL regime persists regardless of whether the activity is wrongful or not;Footnote 199 others understand that it is separate from the law of state responsibility but that both regimes could apply.Footnote 200 This illustrates the uniqueness of the ISL regime in international law and magnifies confusion in this complex analysis. Ultimately, when assessing the application of each legal regime, it is critical that the facts in each circumstance be considered to determine the location of the interference, the location from which the interference emanated, the NSA involved, its connection to a state, and the damage suffered.
This analysis will start by considering the law of state responsibility as a broad regime under general international law that may apply. In the case of interference with space systems caused by NSAs, there would likely be a limited number of NSAs that could be considered to be directed or controlled by a state since many operate independently. However, if a state directed or controlled the NSA that caused the interference that breached an international obligation of the state, then it may implicate that state under the law of state responsibility. If so, then a lex specialis analysis must be undertaken considering the circumstances of the interference (for example, space-based or ground-based, orbital or terrestrial) to assess whether the law of state responsibility would apply or whether another specialized legal regime would come into play. However, without a sufficient link between the NSA and the state, it is unlikely that the law of state responsibility would apply to interference by a NSA, and, thus, responsibility would not flow to a state under that regime.
If a state did direct or control the NSA that conducted the interference, then one must move on to the lex specialis considerations and determine whether there are conflicting bodies of specialized international law.Footnote 201 The commentaries to Article 55 provide elements to consider in assessing the lex specialis question. They not only note that special legal rules applicable to a situation will prevail over general rules,Footnote 202 but also recognize that the later rule in time may take precedence.Footnote 203 Article 55 also contemplates whether the instruments are of the “same legal rank” in order to help determine which is more legally authoritative.Footnote 204 The commentaries further explain that an analysis of a specialized body of law must consider the extent to which the lex specialis establishes state responsibility such that the law of state responsibility can be displaced.Footnote 205 It is not sufficient that the subject matter is dealt with in two different provisions — there has to be an inconsistency for one regime to apply over the other.Footnote 206 Finally, the commentaries note the distinction between so-called “strong” or self-contained regimes, where the law in an area appears relatively comprehensive, and weaker regimes, which might only amount to single provisions within other treaties.Footnote 207
There are no previous real-life examples to reference regarding how the lex specialis considerations noted in the commentaries to Article 55 apply to the law of state responsibility and to the ISL and ITU regimes. ISL provides a specific scheme for determining responsibility and liability in relation to damage caused by space objects, and it arguably appears to be a “strong” treaty regime. However, on further examination, its vague terminology and challenging application undercut this assumption. For example, where a satellite is owned by an entity in State A, which uses an entity in State B to procure the launch from a company in State C, whose launch facility is in State D, it becomes very difficult to assess the application of responsibility and liability where that satellite interferes with a space system. Moreover, the scenario is further complicated where no state registers the satellite but where its ownership is later transferred to a NSA residing in State E, which then uses the satellite to conduct interference.
The ISL regime is of a higher “legal rank” than the Draft Articles (acknowledging that they are widely accepted as customary international law). Within the ISL regime, state liability can only be established for objects launched into space, which would only provide liability in that case for space-based interference from another space object (Scenario 1) but not for ground-based interference (Scenarios 2 and 3), illustrating a further gap in application. For more common ground-based interference activities, the law of state responsibility would presumably apply, and responsibility under Article VI of the Outer Space Treaty to provide authorization and continuing supervision could apply, but the Liability Convention would not. Therefore, it appears that the law of state responsibility could complement the ISL regime in situations involving ground-based interference by a NSA, provided there is a sufficient nexus between the NSA and state.
When considering the Article 55 commentary lex specialis analysis of the ITU regime, it provides a specific and very detailed scheme for telecommunications and interference, it is one of the most current regimes, and it is frequently updated by way of amendments to its regulations. However, it is limited in its enforceability and has no ability to project liability on states for activity of NSAs.Footnote 208 The ITU regime is again arguably of a higher legal rank, as the specific and detailed regime is based in treaty as opposed to guidelines reflecting customary international law. However, the ITU regime falls short when attempting to trace responsibility to the state from whose jurisdiction the NSA is conducting interference, as the regime lacks an enforcement mechanism and liability provisions. Therefore, the Draft Articles can be interpreted to complement the ITU regime when interference activities are attributed to a NSA and the required level of state direction or control of the NSA exists to establish state responsibility for internationally wrongful acts.
Where interference by a NSA is not directed or controlled by a state, the analysis turns to the applicability of the ISL and ITU regimes. As discussed above, the ISL liability regime would only apply to space-based interference. For the more common ground-based orbital (Scenario 2) and terrestrial (Scenario 3) interference, the ITU regime would apply, but it may prove to be ineffective due to the lack of an enforcement mechanism. Consequently, as this analysis has shown, the key challenge is affixing state responsibility and liability.
PRACTICAL CONSIDERATIONS
Even where one or more legal regimes could apply to instances of interference with space assets perpetrated by NSAs, it is extremely challenging to technically attribute those actions to the responsible NSAFootnote 209 and then from the NSA to the state to affix state responsibility or liability. Even where attribution to the NSA for the action can somehow be achieved, there is no practice to draw upon in order to understand how such an incident would (or could) be dealt with from a responsibility and liability perspective. Furthermore, it is possible that while it appears that ground-based interference by an independent NSA cannot be effectively dealt with by any of these regimes, an argument could be made (as was done by the Soviet Union prior to the inception of the Liability Convention and by Canada in its statement of claim in the COSMOS 954 matter) that, where there is no effective mechanism to claim for damages resulting from intentional interference, general international law principles apply. Such general international law principles, as discussed in the Trail Smelter and Corfu Channel cases, could provide a basis for advancing a claim for transboundary harm emanating from another state.
Even where states and companies may be able to attribute interference to a particular actor, they may choose to avoid publicly condemning the interference for a number of reasons. For example, states may avoid referring matters to external bodies for investigation, mediation, or arbitration since this cedes control over determining the outcome of a dispute to an external party. In some instances, the decision to avoid highlighting potentially internationally wrongful acts may be made to preserve the flexibility for that state to potentially conduct the same activity itself in the future.Footnote 210 Practically, where interference is conducted by a NSA, states may deny the existence of the act, or their inability to regulate it (that is, authorize and supervise), because doing so would admit a failure in exercising their responsibilities. Additionally, before a state or company determines whether they wish to respond publicly by shaming the responsible party, making a claim, or exercising a counter-measure (in the case of state-to-state interactions), they must determine whether they wish to publicly share information about who and possibly how the interference was committed. The danger of sharing the attribution information is that the method of attribution, and the often classified or proprietary tactics, techniques, and procedures used to identify the responsible party, are more likely to be revealed. These concerns can result in further vulnerability or may undermine the use of international legal dispute resolution mechanisms in the first place.
Conclusion
As outer space becomes an increasingly accessible and less expensive domain in which to operate, the instances of interference with space-based and ground-based space systems by NSAs are expected to rise. Combined with the increasing reliance of societies on space systems and the growth of the global space industry, this raises concerns regarding whether and in what circumstances states can be held responsible or liable for the actions of NSAs that are connected to their jurisdiction. Several intersecting normative regimes have been analyzed to explore the limited legal mechanisms that could apply to space-based and ground-based interference scenarios. The absolute liability regime of ISL would only apply to space-based interference activities (Scenario 1) by NSAs and could in certain limited circumstances result in state liability. Furthermore, the ISL framework has been referenced in a very limited way over the past forty years, which could indicate that it is being overtaken by general international law. The ITU regulatory regime is inadequate to address both space-based and ground-based interference as it lacks an enforcement mechanism. Finally, the law of state responsibility may apply to both space-based and ground-based interference where interference by a NSA is attributable to a state and the other specialized regimes do not overtake it. As a result, the normative legal regimes relating to responsibility and liability for interference with space systems by NSAs present a challenge to efforts by states to enforce “good” behaviour by NSAs, which can be exploited by NSAs (or states) seeking to interfere with space systems.
