"New battlefields are cyber and space," said Chris Johnson, space law adviser for Secure World Foundation. "We haven't had a conflict on Earth break out where the battleground extends to the space domain, where things are targeted in space and destroyed in space. That may be changing."
After invading Ukraine on Feb. 24, Russia cut off civilians' access to the internet. As NBC News reported, outages in hard-hit Mariupol in southeastern Ukraine lasted for a week, and other cities experienced prolonged periods of spotty connections.
"Ukrainian people who are back home, and friends and family and loved ones who they might have sent over to Poland to escape, [have] no idea — absent internet or some connectivity — whether or not [their loved ones] are saved, or made it out or where they are," said Madi Lottenbach, an associate at Wiley Rein LLP whose practice focuses on communications. "The benefits of broadband connectivity can't be underestimated."
Battles Over Access
Closing off or restricting online access is a tactic of authoritarian regimes. While Western states over the past 30 years have generally opened internet access to the public, less-open states, such as China and Russia, have tightened their grip over what people can see and share. The Arab Spring in 2010 and 2011 highlighted how connectivity could help mobilize a population to overthrow an authoritarian regime.
Recognizing the importance that broadband communications play in preserving citizens' ability to engage with their government and society, the United Nations in 2016 passed a nonbinding resolution that labeled internet access a basic human right. And increasingly, individuals and corporations have stepped in to supply broadband when officials have tried to restrict access. When Russia shut off internet access in Ukraine, SpaceX CEO Elon Musk announced the company would send backup satellite dishes to help people stay online.
"Ukraine civilian Internet was experiencing strange outages — bad weather perhaps? — so SpaceX is helping fix it," Musk tweeted on March 2.
By the next day, terminal units from Starlink — the satellite internet subsidiary of SpaceX — had been delivered to the country. As of late March, more than 5,000 internet terminals from the company were active in Ukraine, the Washington Post reported.
Quick action with Starlink belies the regulatory difficulty others might face circumventing government bottlenecks. It can take a long time for countries to negotiate landing rights, the permissions operators must obtain before their satellites may transmit into other countries, according to Lottenbach.
With just an exchange over social media, Ukraine's Minister of Digital Transformation Mykhailo Fedorov successfully bypassed what Lottenbach calls a cumbersome regulatory process and negotiated a telecommunications deal with an American company.
"I think SpaceX was, like, six weeks in trying to negotiate landing rates" before the internet connectivity problems intensified, Lottenbach said. "And then, you know, via tweet, they're like, 'Okay, that's good enough. That's regulatory approval.'"
Legal Question
But the extent to which SpaceX satellites get intertwined in a military conflict raises difficult questions, especially if Russia decides the satellites are playing a military rather than a civilian role by helping its enemies.
As a civilian project, the satellites shouldn't pose a problem from a legal standpoint, but the company could be viewed as skating on thin ice given the ambiguities inherent in a theater of conflict.
"What SpaceX does is offer services, presumably, either for free or much cheaper than he would normally do to the Ukrainians, because you sympathize with them," said Frans von der Dunk, professor of space law at University of Nebraska College of Law. "And as such, there's nothing wrong with it legally. So the Russians can certainly not claim that, by [supplying the satellite links] that is violating any obligation of international law."
But if Russia views the links as a military resource, that could give the country an opening to target the satellites themselves.
Johnson of the Secure World Foundation said that current international space law — the 1967 Outer Space Treaty — is very general, and it leaves the door open for wide interpretation of what can permissibly be destroyed in space without legal repercussions when there's an international armed conflict.
Killing civilians and destroying civilian infrastructure on Earth, such as hospitals or churches, is labeled a war crime, but targeting anything used in military objectives is fair game. This rule extends to space, with the Oslo Manual detailing that civilian outer space systems and assets must not be the object of attack unless they qualify as military objectives.
So as long as only civilians are using SpaceX's satellites, they cannot legally be targeted by Russia, Johnson said. But if Ukrainian commanders use the satellites for military intelligence, then they become permissible targets in the conflict.
"If they're using that, then those satellites are no longer merely commercial civilian satellites," Johnson said. "All humans on Earth are either civilians or combatants. All things on Earth are either civilian objects or military objectives. If those satellites cross over in how they are used from being civilian objects, and they cross over into being military objectives, then it is permissible to target them. And so that's one thing that the military lawyers will be looking at. And we will possibly look back on this conflict and see this as the first time that these civil commercial space assets became something else."
Investor Fallout
That said, targeting and destroying satellites in a military objective would not only be costly but also highly destructive, potentially creating orbital debris that could travel through space and damage other satellites, and potentially one's own, as well as spacecraft. Ultimately, that could make capital for satellites harder to come by.
"You've got those broadband services," Wiley associate Lottenbach said. "If they're jeopardized, you either have systems that are going offline, because of damage resulting from orbital debris, or you could even have a chilling effect. If the orbital debris situation becomes so untenable, satellite operators might think twice about — or even investors might think — before investing in satellite companies to launch these new low-Earth orbit systems."
With aspects of daily life being increasingly tied to satellite technology and connectivity, and more governments coordinating how to best share spectrum across satellites, states are going to want to collaborate effectively to keep the space domain, which Johnson calls "fragile," as peaceful as possible.
"I think this situation has highlighted why investing in satellite is so critical," Lottenbach said. "I think more governments are going to want to make sure that we are not only licensing and supporting the deployment of these new systems and technologies, but also making sure that there are regulatory frameworks in place to create an enabling environment."
--Editing by Nicole Bleier.
For a reprint of this article, please contact reprints@law360.com.
