‘Dual use’ commercial satellites and the international law of war: a primer

The use of commercial satellites in the Ukraine war has been so significant that some observers have declared it the “first commercial space war.”    What makes the use of many of these satellites complicated is that they are ‘dual use’, that is used by both civilians and military forces.  If you are thinking that might raise law of war issues, you’d be right as some believe that “the line between military and civilian targets in space will become increasingly blurred in future conflicts.”

I’ve written something of a primer on the basics of the law of war in this context.  It will be a chapter in a book tentatively titled The Nexus of Commercial and National Security Space.  My draft chapter is entitled The law of war and ‘dual use’ commercial satellites, and a draft is available on the Social Science Research Network (SSRN).  It is still something of a work in progress but you may still find it worth a look.

Here’s how the chapter draft begins:

In the fall of 2022, the Wall Street Journal reported that Russian Foreign Ministry officer Konstantin Vorontsov said that “if U.S. satellites were used to aid Kyiv, they ‘could be a legitimate target for a retaliatory strike.’”[1]  Vorontsov added, “We are talking about the use by the United States and its allies of civilian infrastructure components in space, including commercial ones, in armed conflicts.”[2]  This chapter will briefly examine some of the implications under the international law of war (LoW) that could be triggered by the use of commercial satellites in wartime.[3]

It is true that commercial satellites have played an enormous role in the Ukraine war.  Professor Audrey Kurth Cronin explains:

Commercial satellite services provide Ukraine with geospatial intelligence to visualize the deployment and movement of Russian troops.  Companies like ICEYE, Usra Space, and MDA gather and analyze imagery through their privately owned synthetic aperture radar satellites, allowing decision-makers to maintain constant surveillance of strategically important locations.[4]

She adds that commercial communications satellites are also vital to Ukraine’s war machine:

Uniting all these individual systems are satellite communications and telecommunications networks that ensure data transmission between Ukrainian units.  SpaceX’s Starlink terminals give military units access to a stable network of low earth orbit satellites that connect sensors to processors anywhere on the battlefield.[5]

The Ukraine conflict has involved commercial satellites services so extensively that observers have dubbed it the “first commercial space war.”[6] 

Broadly speaking, it is not just the Ukrainian military that increasingly relies upon space capabilities; the U.S. and other modern militaries are also dependent upon them.  The U.S. Defense Intelligence Agency (DIA) says:

On the national security front, space-based capabilities afford the United States and our allies with crucial ability to project combat power to areas of conflict and instability.  They enable our armed forces to collect vital intelligence on foreign threats, navigate and maneuver rapidly, and communicate with one another to support global military and humanitarian crises.[7]

Indeed, Assistant Secretary of Defense for Space Policy, John F. Plumb, put it forcefully; he stated that space systems are “absolutely essential for our way of war.”[8] 

U.S. civilians and civilian enterprises are also robust users of satellite systems.  According to DIA:

Space-based capabilities impact many day-to-day aspects of the American way of life.  These capabilities enable functions that affect our homes, transportation, electric power grids, banking systems, and our global communications.  Satellites provide access to a broad range of information and enable many services in real time, from watching breaking news to monitoring our deployed armed forces around the world day or night.[9]

In the not-too-distant past, outer space was considered the exclusive domain of the governments of a handful of space-faring nations.  Today, more than 75 countries[10]  have more than 11,330 satellites in orbit, with 5,280 of them listed as having commercial users.[11]  The size of the commercial satellite sector is expected to grow dramatically in the coming years. The commercial firm SpaceX alone expects to have as many as 42,000 satellites eventually supporting its Starlink internet system.[12]

Increasingly, militaries – including the U.S. armed forces – rely upon civilian satellites that are ‘dual use,’ that is, that serve both military and civilian users.  Experts say “[m]uch of the U.S. military’s current communication system also runs through commercial satellite systems.”[13] 

At the same time, many commenters warn that given that the “Pentagon and other government agencies become more reliant on information provided by commercial satellites, the line between military and civilian targets in space will become increasingly blurred in future conflicts.”[14]  As evidenced by the above discussion of civilian reliance on satellite systems, these blurred lines could have devastating impacts for civilians.

If you’d like to read more, the draft can be found here.

Remember what we like to say on Lawfire: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

Notes

[1] Ann M. Simmons and Micah Maidenberg, “Russia Says It Could Target U.S. Commercial Satellites in Ukraine War,” WSJ, October 27, 2022, https://www.wsj.com/articles/russia-says-it-could-target-u-s-commercial-satellites-in-ukraine-war-11666882614.

[2] Ibid.

[3] For information about national security aspects of U.S. domestic regulation of commercial space operations, see John Goehring, “US Commercial Space Regulation: The Rule of Three,” Journal of National Security Law & Policy, May 6, 2023, https://jnslp.com/2023/05/06/us-commercial-space-regulation-the-rule-of-three/.

[4] Audrey Kurth Cronin, “Open Source Technology and Public-Private Innovation Are the Key to Ukraine’s Strategic Resilience,” War on the Rocks, August 24, 2023, https://warontherocks.com/2023/08/open-source-technology-and-public-private-innovation-are-the-key-to-ukraines-strategic-resilience/.

[5] Ibid.

[6] Sandra Erwin, “On National Security | Drawing Lessons from the First ‘Commercial Space War’,” SpaceNews, January 23, 2023, https://spacenews.com/on-national-security-drawing-lessons-from-the-first-commercial-space-war/.

[7] U.S. Department of Defense, “Defense Intelligence Agency Briefing on Challenges to Security in Space,” April 12, 2022, https://www.defense.gov/News/Transcripts/Transcript/Article/2999083/defense-intelligence-agency-briefing-on-challenges-to-security-in-space-2022/.  [hereinafter “DIA brief].

[8] U.S. Department of Defense, “Space Integral to the DOD Way of War, Policy Chief Says,” July 20, 2023., https://www.defense.gov/News/News-Stories/Article/Article/3465982/space-integral-to-the-dod-way-of-war-policy-chief-says/.

[9] U.S. Department of Defense, “Defense Intelligence Agency Briefing on Challenges to Security in Space,” April 12, 2022,, https://www.defense.gov/News/Transcripts/Transcript/Article/2999083/defense-intelligence-agency-briefing-on-challenges-to-security-in-space-2022/. 

[10] Kelly Kizer Whitt, “Who Owns All the Satellites?,” EarthSky | Updates on Your Cosmos and World, February 8, 2022, https://earthsky.org/space/who-owns-satellites-company-country/.

[11] Andy, “How Many Satellites Are Orbiting the Earth in 2023? | Pixalytics Ltd,” Pixalytics Ltd, July 5, 2023, https://www.pixalytics.com/satellites-orbiting-earth-2023/.

[12] Grace Kay, “Everything We Know about Elon Musk’s Starlink Satellites and Future Internet Plans,” Business Insider, August 9, 2023, https://www.businessinsider.com/elon-musk-starlink-satellites-internet.

[13] David Roza, “Experts Warn of Blurring Line between Military, Commercial Satellites,” Air & Space Forces Magazine, July 28, 2023, https://www.airandspaceforces.com/military-commercial-satellites-blurring-line/.

[14] David Roza, “Experts Warn of Blurring Line between Military, Commercial Satellites,” Air & Space Forces Magazine, July 28, 2023, https://www.airandspaceforces.com/military-commercial-satellites-blurring-line/.