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Published online by Cambridge University Press: 23 August 2018
Outer space is becoming a more accessible and less expensive domain in which to operate. Consequently, growing numbers of state and non-state actors (NSAs) are operating in, to, and through space. At the same time, instances of space-based and ground-based interference with space systems are also increasing, disrupting crucial space-supported services and applications relied on by millions, with great financial and operational costs. The increased participation of NSAs in space activities raises particular concerns, especially the threat of intentional interference with space systems by nefarious actors like terrorist organizations. It also requires consideration of whether states bear responsibility and/or liability for the acts of NSAs with a nexus to those states. At first glance, it is tempting to conclude that one or more normative legal regimes would apply. The potential regimes include international space law, international telecommunications law, and the law of state responsibility. On further examination, however, when it comes to interference, there appears to be no effective legal mechanism to hold states accountable for NSA interference with space systems, which can be exploited by NSAs and challenge efforts by states to enforce “good” behaviour.
L’espace devient plus accessible et les opérations extra-atmosphériques moins coûteuses. Par conséquent, un nombre croissant d’acteurs étatiques et non-étatiques opèrent dans ce domaine. Parallèlement, les ingérences spatiales et terrestres dans le fonctionnement de systèmes spatiaux se multiplient, perturbant les services et applications spatiaux essentiels sur lesquels comptent des millions de personnes et occasionnant des coûts financiers et opérationnels considérables. La participation accrue d’acteurs non-étatiques (ANE) aux activités spatiales soulève des préoccupations particulières, notamment la menace d’ingérence intentionnelle dans le fonctionnement de systèmes spatiaux par des acteurs néfastes tels des groupes terroristes. Elle pose également la question à savoir si les États portent une responsabilité quelconque pour les actes des ANE ayant un lien avec ces États. À première vue, il semblerait que plusieurs régimes juridiques internationaux s’appliqueraient à cette question, y-inclus le droit international de l’espace, le droit international des télécommunications et le régime de la responsabilité étatique. Cependant, un examen plus minutieux révèle qu’il ne semble pas y avoir de mécanisme juridique efficace pour imposer une responsabilité quelconque aux États pour les éventuelles ingérences des ANE dans le fonctionnement de systèmes spatiaux. Cette lacune pourrait être exploitée par les ANE et remettre en cause les efforts des États pour faire respecter les “bons” comportements dans le domaine extra-atmosphérique.
1 A space system includes “all devices and organizations forming the space network,” which includes the satellite(s), the transmissions, and the ground station and associated infrastructure. “Space assets” are elements of space systems and are the “equipment that is an individual part of a space system, which is or can be placed in space or directly supports space activity terrestrially.” United States Department of Defence, DOD Dictionary of Military and Associated Terms (July 2017) at 215-16, online: <http://www.dtic.mil/doctrine/new_pubs/dictionary.pdf>.
2 “Jamming” is the deliberate interference with wireless communications. “Spoofing” is “[masquerading] through the falsification of data.” Many types of interference affect the electromagnetic spectrum. Harrison, Todd et al, “Escalation and Deterrence in the Second Space Age,” Center for Strategic and International Studies (October 2017) at 14–15, online: <https://csis-prod.s3.amazonaws.com/s3fs-public/publication/171003_Cooper_EscalationDeterrenceSecondSpaceAge.pdf>.Google Scholar “Piggybacking” refers to the practice of using another entity’s satellite signal without consent or knowledge. “Interference by cyber means” can include interference with satellites by controlling various elements of a system to jam, spoof, or hack communications networks, control systems, and payloads or to interfere with ground infrastructure, including satellite control centres. Livingstone, David & Lewis, Patricia, “Space, the Final Frontier for Cyber Security?” Chatham House (22 September 2016) at 2, online: <https://www.chathamhouse.org/publication/space-final-frontier-cybersecurity>.Google Scholar
3 de Selding, Peter B, “Intelsat Vows to Stop Piracy by Sri Lanka Separatist Group,” Space News (18 April 2007), online: <http://spacenews.com/intelsat-vows-stop-piracy-sri-lanka-separatist-group/>.Google Scholar The Liberation Tigers of Tamil Eelam used a vacant Ku-band transponder on an Intelsat satellite to essentially hijack the signal.
4 Remuss, Nina-Louisa, “The Need to Counter Space Terrorism: A European Perspective,” European Space Policy Institute (6 January 2009) at 3, online: <http://www.espi.or.at/images/stories/dokumente/Perspectives/espi%20perspectives%2017.pdf>.Google Scholar
5 Mountin, Sarah, “The Legality and Implications of Intentional Interference with Commercial Communication Satellite Signals” (2014) 90 Intl L Stud 101 at 107.Google Scholar
6 In 2016, the commercial satellite service industry represented revenues of US $127.4 billion. In 2015, global satellite industry revenues represented US $208 billion. Satellite Industry Association, “2016 SIA State of Satellite Industry Report,” Satellite Industry Association (September 2016), online: <http://www.sia.org/wp-content/uploads/2017/03/SSIR-2016-update.pdf>..>Google Scholar
7 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) [Outer Space Treaty]; Crawford, James, Brownlie’s Principles of Public International Law, 8th ed (Oxford: Oxford University Press, 2012) at 20.CrossRefGoogle Scholar
8 Non-state actors (NSAs) include: international governmental organizations (e.g., European Space Agency), international organizations (e.g., International Telecommunication Union (ITU)), non-governmental organizations, domestic and multinational corporations (i.e., commercial, telecommunications, and remote-sensing companies), rebel groups, terrorist organizations, civil society organizations, academic institutions, and individuals. Bob Reinalda, ed, The Ashgate Research Companion to Non-State Actors (Burlington, VT: Ashgate, 2011) at 21; Kyriakopoulos, George D, “Legal Challenges Posed by the Actions of Non-State Actors in Outer Space” (Lecture delivered at the second Manfred Lachs Conference on Global Space Governance, 30 May 2014) [unpublished].Google Scholar
9 Goh, Gérardine Meishan, Dispute Settlement in International Space Law: A Multi-Door Courthouse for Outer Space (Leiden: Martinus Nijhoff, 2007) at 23.CrossRefGoogle Scholar
10 NSAs can utilize space assets for operational planning of activities, which include the use of satellite navigation, high-resolution imagery, and digital mapping. Martin, Anne-Sophie, “Space Applications as Instruments to Face Terrorist Threats” (Lecture delivered at the fifth Manfred Lachs Conference on Global Space Governance and the UN 2030 Agenda, 6 May 2017) [unpublished].Google Scholar NSAs can also interfere with space systems in three general ways: a) measures can be taken directly against satellites, b) measures can be taken against launch facilities or ground stations/infrastructure, or c) interference or measures can occur against the use of equipment that services the space system. Interference can occur as a result of any of the following actions or a combination thereof: disruption, degradation, denial, deception or destruction. Remuss, supra note 4 at 3–5.
11 The ITU is the international organization that plays a key role in globally managing the radio-frequency spectrum and satellite orbits, which are “limited natural resources which are increasingly in demand from a large and growing number of services such as fixed, mobile, broadcasting, amateur, space research, emergency telecommunications, meteorology, global positioning systems, environmental monitoring and communications services” and are leveraged every day for services on land, at sea and in the air. Rancy, François, “Welcome to ITU-R,” International Telecommunication Union (2017), online: <http://www.itu.int/en/ITU-R/information/Pages/default.aspx>.Google Scholar
12 Outer Space Treaty, supra note 7; Convention on International Liability for Damage Caused by Space Objects, 29 November 1971, 961 UNTS 187 (entered into force 1 September 1972) [Liability Convention]. Currently, the Outer Space Treaty has been ratified by 108 states, and twenty-four states have signed, but not ratified, it. The Liability Convention has been ratified by ninety-five states parties, while another nineteen have signed the treaty. United Nations, “Status of International Agreements Relating to Activities in Outer Space as of 1 January 2018,” United Nations Office of Outer Space Affairs (April 2018), online: <http://www.unoosa.org/documents/pdf/spacelaw/treatystatus/AC105_C2_2018_CRP03E.pdf>..>Google Scholar
13 Housen-Couriel, Deborah, “Disruption of Satellite Transmissions Ad Bellum and In Bello: Launching a New Paradigm of Convergence” (2012) 45:3 Israel L Rev 431 at 442.Google Scholar While interference by both states and NSAs is a problem, this article will only focus on interference conducted by NSAs. This article will consider states that are able to operate functioning governments and exercise some level of oversight for space activities with a nexus to it; it will not address those states that could be considered to be “failed” or “failing.”
14 Lewis, Patricia, “The 21st Century Star Wars,” Chatham House (February and March 2016), online: <https://www.chathamhouse.org/publications/twt/new-star-wars>.Google Scholar
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16 Glass, Dan, “What Happens If GPS Fails?” The Atlantic (13 June 2016), online: <https://www.theatlantic.com/technology/archive/2016/06/what-happens-if-gps-fails/486824/> ;Google Scholar National Defence, “Strong, Secure, Engaged: Canada’s Defence Policy,” Department of National Defence (2017) at 56, online: <http://dgpaapp.forces.gc.ca/en/canada-defence-policy/docs/canada-defence-policy-report.pdf>..>Google Scholar
17 Mountin, supra note 5 at 109–10; Lewis, supra note 14.
18 Lewis, supra note 14; Lyall, Francis & Larsen, Paul B, Space Law: A Treatise (Burlington, VT: Ashgate, 2009) at 389–90.Google Scholar
19 Mountin, supra note 5 at 103; Lewis, supra note 14.
20 Lewis, supra note 14.
21 The first Gulf War is considered to be the first space war because Operation Desert Storm saw operational militaries become more dependent on space technologies to conduct operations in multiple domains. Position, navigation and timing, weather, communications, remote sensing, and early warning satellites were used and proved their mettle during this conflict. Vlasic, Ivan A, “Space Law and the Military Applications of Space Technology” in Jasentuliyana, Nasdasiri, ed, Perspectives on International Law (London: Kluwer Law International, 1995) 385 at 385, 388;Google Scholar Mountin, supra note 5 at 111; National Defence, supra note 16 at 56, 71.
22 Mountin, supra note 5 at 112; Housen-Couriel, supra note 13 at 437; Schmitt, Michael, “International Law and Military Operations in Space” (2006) 10 Max Planck YB UN L 89 at 89–90.Google Scholar
23 Mountin, supra note 5 at 114.
24 Civilian uses of satellites include support to the functioning of financial and economic systems, the provision of telephone and television services, which provide instantaneous communications via the Internet, supports for the transmission of financial transaction data, the coordination of air traffic control, and the provision of “just-in-time” delivery of goods and the operation of cell phones. National Defence, supra note 16 at 56; Acker, Olaf, Pötscher, Florian & Lefort, Thierry, “Why Satellites Matter: The Relevance of Commercial Satellites in the 21st Century: A Perspective 2012–2020” (Presentation by Booz & Company, September 2012) [unpublished], online: <https://www.esoa.net/Resources/Why-Satellites-Matter-Full-Report.pdf>.Google Scholar
25 At the beginning of the space age, the concept of dual use was essentially irrelevant because national space programs were largely controlled and led by the military, while civilian agencies were largely in a supporting role. However, over time, commercial space actors began operating space systems, which supported civilian and military applications. Dick, Steven J & Launius, Roger D, eds, Societal Impact of Spaceflight (Washington: National Aeronautics and Space Administration, 2007) at 354;Google Scholar Mountin, supra note 5 at 113.
26 Wright, David, Grego, Laura & Gronlund, Lisbeth, “The Physics of Space Security: A Reference Manual,” American Academy of Arts and Sciences (2005) at 121, online: <https://www.amacad.org/publications/Physics_of_space_security.pdf>.Google Scholar
27 Civilian commercial satellites do not tend to have much encryption protecting their signals because encrypting satellite signals can result in an 80 percent drop in performance. Paganini, Pierluigi, “Hacking Satellites … Look Up to the Sky,” Infosec Institute (18 September 2013), online: <http://resources.infosecinstitute.com/hacking-satellite-look-up-to-the-sky/#gref>.Google Scholar
28 Wilson, Tom, “Threats to United States Space Capabilities,” Commission to Assess United States National Security Space Management and Organization (2000) at IV.F, online: <http://www.fas.org/spp/eprint/article05.html>.Google Scholar Commercial communications satellites are easily located due to their consistent, relatively stationary position over the Earth. Wright, Grego & Gronlund, supra note 26 at 121. Most commercial communications satellites are located in geostationary orbit, which is 35,786 kilometres above the Earth in a plane along the equator that remains fixed relative to the Earth as their orbit rotates at the same speed as the Earth. Lyall & Larsen, supra note 18 at 246, 256.
29 The United States relies on commercial satellites for 80–90 percent of its communications. Thompson, Loren B, “Lack of Protected Satellite Communications Could Mean Defeat for Joint Force in Future War,” Lexington Institute (blog) (14 April 2010), online: <http://www.lexingtoninstitute.org/lack-of-protected-satellite-communications-could-mean-defeat-for-joint-force-in-future-war/?a=1&c=1171>.Google Scholar
30 Reinalda, supra note 8 at 1.
31 Ibid at 21.
32 Ibid. It is interesting that so many NSAs are gaining access to space or attempting to enter the operational sphere; it has even prompted the Secure World Foundation to create a handbook to assist them in operating responsibly in space. Christopher D Johnson, ed, Handbook for New Actors in Space (Denver: Integrity Print Group, 2017).
33 Martin, supra note 10. E.g., cellular phones used for command and control operate using applications based on satellite communications (SATCOM), and the Internet is used to communicate and obtain information for planning purposes, such as obtaining imagery of specific locations from remote sensing data, which can be used to perpetrate attacks or other disruptions.
34 Light small satellites include mini-satellites (500 kilograms), micro-satellites (10–100 kilograms), and nano-satellites (1–10 kilograms), while pico-satellites (0.1–1 kilograms) and femto-satellites (10–100 grams) are in development. These satellites could be used to conduct space-based interference and would be much less expensive to launch due to their small weight. Lewis, Patricia & Livingstone, David, “What to Know about Space Security,” Chatham House (27 September 2016), online: <https://www.chathamhouse.org/expert/comment/what-know-about-space-security>.Google Scholar
35 Handheld jammers can be purchased over the Internet for a relatively low cost. Mountin, supra note 5 at 131.
36 Crawford, James, Pellet, Alain & Olleson, Simon, The Law of International Responsibility (Oxford: Oxford University Press, 2010).CrossRefGoogle Scholar
37 Tsagourias, Nicholas, “Non-State Actors, Ungoverned Spaces and International Responsibility for Cyber Acts” (2016) 21:3 J Confl & Sec L 455 at 458, 461.Google Scholar
38 Housen-Couriel, supra note 13 at 433.
39 Ibid at 433–35.
40 Ibid at 435.
41 Ibid at 439. Orbital slots are regulated in geostationary orbit.
42 It should be noted that jamming could be endorsed as an appropriate measure under Article 41 of the United Nations Charter; otherwise, it is generally considered to be interference. Jamming may be permitted where the United Nations (UN) Security Council calls upon member states to interrupt “postal, telegraphic, radio or other means of communication” in response to a threat to peace, a breach of the peace or aggression. Charter of the United Nations, 26 June 1945, 1 UNTS XVI, art 41(2) (entered into force 24 October 1945) [UN Charter].
43 Housen-Couriel, supra note 13 at 434, 437, 440. Space systems are vulnerable to two main threats: non-kinetic (which can include electromagnetic interference or cyber-enabled interference) or kinetic (the effect of physically interfering, damaging, or destroying another satellite with another object either in orbit or launched from the ground for that purpose — e.g., direct assent anti-satellite weapons). This “dual threat” is amplified by cyber interference as satellites, the transmissions, and their associated ground stations are connected, commanded, and controlled using cyber platforms. However, cyber interference is outside the scope of this article. Lewis & Livingstone, supra note 34.
44 Housen-Couriel, supra note 13 at 440. In 2006, it was noted by Lieutenant General Robert Kehler that there were fifty documented instances of interference with military communications over SATCOM during Operation Iraqi Freedom, of which five were determined to be hostile. Paganini, supra note 27.
45 The 2009 conjunction of the Cosmos and Iridium satellites produced many pieces of space debris that interfered with other satellites. Mountin, supra note 5 at 104; Housen-Couriel, supra note 13 at 437; Harrison et al, supra note 2 at 11–12.
46 Perek, Lubos, “Space Debris Mitigation and Prevention: How to Build a Stronger International Regime” (2004) 2:2 Astropolitics 215;Google Scholar Mountin, supra note 5 at 120; Wright, Grego & Gronlund, supra note 26 at 22, 118, 137; Harrison et al, supra note 2 at 12.
47 Jamming is intentional interference that involves overloading a specific radio frequency with too much electronic noise so that the communication is blocked at the planned destination. Wright, Grego & Gronlund, supra note 26 at 118–23; Harrison et al, supra note 2 at 14.
48 Zenko, Micah, “Dangerous Space Incidents,” Contingency Planning Memorandum No 21, Council on Foreign Relations (April 2014), online: <https://www.cfr.org/sites/default/files/pdf/2014/04/CPA_ContingencyMemo_21.pdf>.Google Scholar
49 More recently, interference by cyber means has risen, with hackers gaining full functional control of the National Aeronautics and Space Administration (NASA) computers in 2011. This particular hacking incident resulted in the hackers getting full system access, which would have allowed them to “modify, copy or delete sensitive files,” which could have affected the International Space Station. In addition, between 2010 and 2011, NASA suffered 5,408 computer security incidents. Hacks to NASA systems range from those perpetrated by individuals testing their hacking skills, to organized criminal organizations looking for profit, to intrusions that may be sponsored by foreign intelligence services. “Hackers Had ‘Full Functional Control’ of NASA Computers,” British Broadcasting Corporation (8 March 2012), online: <http://www.bbc.com/news/technology-17231695>. A consideration of interference with space systems by cyber means is outside the scope of this article. For further information on this topic from a legal perspective, see Harrison et al, supra note 2 at 15; Schmitt, Michael N, ed, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd ed (Cambridge: Cambridge University Press, 2017).CrossRefGoogle Scholar
50 It is notable that where non-kinetic interference renders a satellite uncontrollable, that satellite could cause space debris as a second- or third-order effect if it collides with other debris or another satellite.
51 “Space Security Index 2006” (2007) 32 Ann Air & Sp L 201 at 427; Hart, Brandon L, “Anti-Satellite Weapons: Threats, Laws and the Uncertain Future of Space” (2008) 33 Ann Air & Sp L 344 at 350.Google Scholar
52 “Space Security Index,” supra note 51 at 433; Hart, supra note 51 at 351.
53 Housen-Couriel, supra note 13 at 433–35.
54 Wright, Grego & Gronlund, supra note 26 at 121–23.
55 Geostationary orbit is an orbit at an altitude of 35,786 kilometres above the equator, where satellites travel at the same rate as the Earth rotates. Satellites in geostationary orbit are typically used for television and radio broadcasting as they allow real-time data transfer over a wide geographic area. They are also used for military and commercial communications. Harrison et al, supra note 2 at 18; Wright, Grego & Gronlund, supra note 26 at 13, 43.
56 Finch, Michael J, “Limited Space: Allocating the Geostationary Orbit” (1986) 7:4 NW J Intl L & Bus 788 at 788.Google Scholar
57 Jamming is the most common form of interference activity. Mountin, supra note 5 at 131; Wright, Grego & Gronlund, supra note 26 at 166.
58 Mountin, supra note 5 at 129–30.
59 Ibid at 130.
60 Jamming equipment is so accessible that hand-held jammers, easily available on the Internet, can override signals up to eighty kilometres away. Due to the small and mobile nature of jamming equipment, it is difficult to locate and track where the interference originates. Ibid at 131; Wilson, supra note 28 at IV.F.
61 Jakhu, Ram & Singh, Karan, “Space Security and Competition for Radio Frequencies and Geostationary Slots” (2009) 58 Zeitschrift für Luft- und Weltraumrecht 79 at 83–85.Google Scholar
62 Johnson-Freese, Joan, Space Warfare in the 21st Century: Arming the Heavens (New York: Routledge, 2017) at 67.Google Scholar
63 Mountin, supra note 5 at 118.
64 Johnson-Freese, supra note 62 at 84; Berlocher, Greg, “Interference: Operators Making Advances in Flight,” Satellite Today (1 June 2008), online: <https://www.satellitetoday.com/telecom/2008/06/01/interference-operators-making-advances-in-fight/>.Google Scholar
65 Mountin, supra note 5 at 118.
66 It should be noted that under art 2(4) of the UN Charter, interference with satellite signals would not generally amount to a threat of force or a use of force against the territorial integrity or political independence of a state. However, depending on the effects of space-based or ground-based interference and the type of system affected, it may be considered to rise to the level of a threat of force, use of force or armed attack, and, therefore, the law relating to the use of force (jus ad bellum) or international humanitarian law (jus in bello) could apply depending on the situation. Mountin, supra note 5 at 108, 111–12.
67 A mega-constellation is a collection of related satellites, usually in low Earth orbit (LEO) operating to provide increased coverage and resilience for a particular satellite service. An example of a mega-constellation is OneWeb, which is planning a constellation of 648 satellites in LEO to provide global broadband communications services. Other proposed mega-constellations are considering using 1,400 and 3,000 satellites. Foust, Jeff, “Mega-Constellations and Mega-Debris,” The Space Review (10 October 2016), online: <http://www.thespacereview.com/article/3078/1>;Google Scholar “Managing Mega-Constellations,” European Space Agency (30 March 2017), online: <https://gsp.esa.int/articles/-/wcl/lGnxp6cuQgi6/10192/managing-mega-constellations>.
68 Orbital space debris can occur when a piece of space debris is in orbit itself and strikes another space asset or piece of debris, which is called a conjunction. Space debris can have catastrophic effects if it hits a functioning satellite, not only in the first instance by disabling, degrading, or destroying the satellite but also in then producing pieces of debris that, due to the Kessler effect, result in the propagation of more and more space debris as secondary and tertiary effects. Wright, Grego & Gronlund, supra note 26 at 136. NASA tracks approximately 500,000 pieces of space debris, in addition to millions of pieces that are too small to track, which are a threat to space assets, including the International Space Station. National Aeronautics and Space Administration, “Space Debris and Human Spacecraft,” National Aeronautics and Space Administration (26 September 2013), online: <https://www.nasa.gov/mission_pages/station/news/orbital_debris.html>..>Google Scholar
69 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, GA Res 53/83, UNGAOR, 53rd Sess, Supp No 10, UN Doc A/56/10 (2001) [Draft Articles on State Responsibility].
70 Translation of French text of Spanish Zone of Morocco (Great Britain v Spain) (1925), reprinted in 2 UNRIAA 615; Crawford, supra note 7 at 541.
71 Hertzfeld, Henry R, “A Guide to Space Law Terms,” Space Policy Institute, George Washington University and Secure World Foundation (December 2012) at 54, online: <http://swfound.org/media/99172/guide_to_space_law_terms.pdf>.Google Scholar
72 Crawford, supra note 7 at 540.
73 Outer Space Treaty, supra note 7, art VI.
74 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 5 December 1979, 1363 UNTS 2, art 14 [Moon Agreement]. It should be noted that the Moon Agreement is not widely subscribed to, particularly by the major space-faring states.
75 Antarctic Treaty, 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961).
76 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, arts 31, 139 (entered into force 16 November 1994).
77 Jakhu, Ram, “Liability and Principles of State Responsibility” (Lecture delivered at the Strategic Space Law Program, McGill University Institute of Air and Space Law, 31 May 2016) [unpublished].Google Scholar
78 Ibid.
79 Hertzfeld, supra note 71 at 52.
80 Lyall & Larsen, supra note 18 at 66.
81 Outer Space Treaty, supra note 7, art VII.
82 Liability Convention, supra note 12, arts II–IV.
83 Lyall & Larsen, supra note 18 at 66.
84 The five major space law treaties include the Outer Space Treaty, supra note 7; the Liability Convention, supra note 12; the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Space, 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968); the Convention on the Registration of Objects Launched into Outer Space, 14 January 1975, 1023 UNTS 15 (entered into force 15 September 1976); and the Moon Agreement, supra note 74.
85 Gleeson, Patrick K, “Legal Aspects of the Use of Force in Space” (LLM thesis, McGill University Institute of Air and Space Law, 2005) at 24 [unpublished].Google Scholar
86 Jakhu, Ram & Dempsey, Paul Stephen, Routledge Handbook of Space Law (New York: Routledge, 2017) at 12.Google Scholar
87 Schmitt, supra note 22 at 99; Cheng, Bin, General Principles of Law (Oxford: Clarendon Press, 1997) at 621–40;Google Scholar Kerrest, A, “Remarks on the Responsibility and Liability for Damages Other Than Those Caused by the Fall of a Space Object” (Proceedings of the Fortieth Colloquium of the International Institute of Space Law, Turin, Italy, 1997) at 92–112 [unpublished].Google Scholar
88 Outer Space Treaty, supra note 7, art I; Oduntan, Gbenga, Sovereignty and Jurisdiction in the Airspace and Outer Space: Legal Criteria for Spatial Delimitation (New York: Routledge, 2012) at 193.Google Scholar
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90 Outer Space Treaty, supra note 7, art I.
91 Gleeson, supra note 85 at 39; Outer Space Treaty, supra note 7, art III.
92 Gleeson, supra note 85 at 40. E.g., traditional notions of territory and sovereignty do not easily translate into space, given the associated physics of the environment.
93 The 1962 UN General Assembly resolution on the Declaration of Legal Principles in space was the first instance where the UN indicated that international law applied in space. This principle was later codified in art III of the Outer Space Treaty, supra note 7, requiring that activities in space be conducted in accordance with international law, including the UN Charter. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962(XVIII), UNGAOR, 18th Sess, UN Doc A/RES/18/1962 (1963).
94 Co-operation on Peaceful Uses of Outer Space, supra note 89; Gleeson, supra note 85 at 38. Outer Space Treaty, supra note 7, art III; UN Charter, supra note 42.
95 Mandl, Vladimir, Das Weltraumrecht: Ein Problem Der Raumfahrt (Berlin: J Bensheimer, 1932);Google Scholar Dembling, Paul, “A Liability Treaty for Outer Space Activities” (1970) 19:1 Am U Intl L Rev 33 at 34.Google Scholar
96 Dembling, supra note 95 at 34–35. In utilizing space for social, economic, and national security activities, it is generally accepted that the risk of damage or injury should not be passed from “the creator of the risk to the public at large,” except in certain circumstances where the launching state reaps the benefits; however, damages in that context would be dealt with under domestic law via a claim against a government.
97 Crawford, Pellet & Olleson, supra note 36 at 903–05.The negotiations for the Liability Convention were so controversial that it occupied the UN Committee on the Peaceful Uses of Outer Space’s legal sub-committee for nine years. Jennings, Robert & Watts, Arthur, Oppenheim’s International Law, vol 1: Peace, 9th ed (London: Longman, 2008) at 834.CrossRefGoogle Scholar
98 The construct of tracing responsibility to the supervising state was codified during the creation of the space age as a compromise between the United States, which favoured the unhampered use of space by private entities, and the Soviet Union, which advocated for a prohibition on private space activities and entities in space. Pedrazzi, Marco, “Outer Space, Liability for Damage” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2008) at para 2;Google Scholar Crawford, Pellet & Olleson, supra note 36 at 909.
99 Responsibility can also flow under international law for lawful acts, which is normally the case with high risk, very dangerous activities, as is the case with space activities. Krystyna Wiewiorowska, “Some Problems of State Responsibility in Outer Space Law” (1979) 7:1 J Space L 23 at 32.
100 Cheng, Bin, Studies in International Space Law (Oxford: Oxford University Press, 2004) at 72 [Cheng, Space Law];Google Scholar Wiewiorowska, supra note 99 at 24.
101 Crawford, Pellet & Olleson, supra note 36 at 904. Some examples include the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, which indicates that “any person who suffers damage on the surface shall, upon proof only that damage was caused by an aircraft in flight or by any person or thing falling therefrom, be entitled to compensation.” Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, 7 October 1952, 310 UNTS 182 (entered into force 4 February 1958). A similar principle has been applied to atomic energy, which utilizes similar absolute liability regimes, including the Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 251 (entered into force 1 April 1968), and the Convention on the Liability of Operators of Nuclear Ships, 25 May 1962, 57 AJIL 268 [Nuclear Ships Convention]. Art II of the Nuclear Ships Convention provides that “[t]he operator of a nuclear ship shall be absolutely liable for any nuclear damage upon proof that such damage has been caused by a nuclear incident involving the nuclear fuel of, or radioactive products or waste produced in, such ship.” International Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265 (entered into force 12 November 1977).
102 Dembling, supra note 95 at 34. Absolute liability is contrasted with “fault-based liability,” which is “liability based on some degree of blameworthiness.” Black’s Law Dictionary, 9th ed, sub verbo “fault-based liability.” “Fault” is defined as “an error or defect of judgement or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement. Under the civil law, “fault” is “the intentional or negligent failure to maintain some standard of conduct when that failure results in harm to another person.” Black’s Law Dictionary, 9th ed, sub verbo “fault.”
103 Goldie, LFE, “Liability for Damage and the Progressive Development of International Law” (1965) 14 ICLQ 1189.Google Scholar This determination appears to be based on the Trail Smelter Arbitration Tribunal (1935), which held that a state “from whose territory or facility an object is launched” has a duty at all times to “protect other states against injurious acts by individuals from within its jurisdiction.” Trail Smelter Case (United States v Canada) (1941), reprinted in 3 UNRIAA 1905 [Trail Smelter]; Cheng, Space Law, supra note 100 at 237.
104 Hurwitz, BA, State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Objects (Dordrecht: Martinus Nijhoff, 2002) at 147, 207.Google Scholar
105 Outer Space Treaty, supra note 7, art VI. For a thorough discussion of the interpretation of “appropriate state” under art VI of the Outer Space Treaty, see Cheng, Bin, “Art VI of the 1967 Space Treaty Revisited: ‘International Responsibility’, ‘National Activities’, and the ‘Appropriate State’” (1998) 24 J Space L 7 at 18.Google Scholar
106 Outer Space Treaty, supra note 7, art VI. It should be noted that there are interpretation differences between the various translations of the text of the Liability Convention, in that the French and Spanish versions do not recognize a difference between “responsibility” and “liability.” Different translated versions also provide varying scopes of application for absolute liability. For more information, see Ospina, Sylvia, “International Responsibility and State Liability in an Age of Globalization and Privatization” (2012) 17 Ann Air & Sp L 479;Google Scholar Liability Convention, supra note 12 (in French and Spanish); Cheng, Space Law, supra note 100 at 632.
107 Outer Space Treaty, supra note 7, art VI.
108 This is because all activities, whether carried out by states or NSAs “are deemed to be governmental activities involving direct state responsibility.” Cheng, Space Law, supra note 100 at 237.
109 Pedrazzi, supra note 98 at para 2.
110 Outer Space Treaty, supra note 7, art VIII; Cheng, Space Law, supra note 100 at 635.
111 Cheng, Space Law, supra note 100.
112 Application of the Concept of the “Launching State”, GA Res 59/119, UNGAOR, 59th Sess, UN Doc A/RES/59/115 (2004); Pedrazzi, supra note 98 at para 3.
113 Outer Space Act 1986 (UK), c 38.
114 Commercial Space Launch Competitiveness Act (US), 51 USC § 5050 (2015); Cheng, Space Law, supra note 100 at 634.
115 Cheng, Bin, “Whose Parking Space Is It Anyway? Mapping Out a Legal Minefield in the Celestial Outlands,” Times Higher Educational Supplement, No 789 (30 May 1986) at 14–15.Google Scholar
116 Liability Convention, supra note 12, art IV. This provision illustrates the broad basis for establishing fault without any requirement for a wrongful act in multiple domains. However, it is not clear whether the potentially liable state could be exonerated from being responsible or how that may function. Pedrazzi, supra note 98 at paras 4–5.
117 Liability Convention, supra note 12, art I(c).
118 Cheng, Space Law, supra note 100 at 73, 622. There may also be some element of “quasi-territorial jurisdiction” over space objects launched from a state with a type of “nationality” attachment.
119 Liability Convention, supra note 12, art I(d). It is not clear how far the interpretation of “component parts” extends and whether it is understood to include (and, therefore, attach liability for) space debris (i.e., no longer functioning satellites or fragmented parts originating from the degradation of a space assets), which constitutes a major source of space pollution. Pedrazzi, supra note 98 at para 5; Cheng, Space Law, supra note 100 at 506; Hurwitz, supra note 104 at 23–26.
120 Wiewiorowska, supra note 99 at 32.
121 Liability Convention, supra note 12, art I(a).
122 Wiewiorowska, supra note 99 at 32, 34–35.
123 Mountin, supra note 5 at 120.
124 Financial systems rely on global positioning systems for global accuracy and synchronization between various time zones, which is crucial for stock market operation. Paganini, supra note 27.
125 Mountin, supra note 5 at 120.
126 “WIPO Intellectual Property Handbook: Policy, Law and Use,” 2nd ed, World Intellectual Property Organization (2004) at 450–53, online: <http://www.wipo.int/edocs/pubdocs/en/intproperty/489/wipo_pub_489.pdf>.
127 Pedrazzi, supra note 98 at para 12.
128 Ibid at para 10.
129 “Attribution” relates to two concepts: first, in the context of state responsibility, it considers what state bears responsibility for a breach of an international obligation, which is required before counter-measures may be undertaken; and, second, it relates to determining the identity of an actor perpetrating an action. This note references the latter instance. Harrison et al, supra note 2 at 31.
130 Crawford, Pellet & Olleson, supra note 36 at 909; Wiewiorowska, supra note 99 at 36.
131 Liability Convention, supra note 12, art XII.
132 Pedrazzi, supra note 98 at para 10; Crawford, Pellet & Olleson, supra note 36 at 906.
133 Pedrazzi, supra note 98.
134 Liability Convention, supra note 12, art IV(2).
135 Crawford, Pellet & Olleson, supra note 36 at 905; Wiewiorowska, supra note 99 at 29.
136 Crawford, Pellet & Olleson, supra note 36; Kleiman, Matthew J, Lamie, Jenifer K & Carminati, Maria-Vittoria, The Laws of Spaceflight: A Guidebook for New Space Lawyers (Chicago: American Bar Association Publishing, 2012) at 64.Google Scholar
137 Liability Convention, supra note 12, art VI(1).
138 Ibid, art VI(2).
139 Ibid, art V.
140 Trail Smelter, supra note 103; Corfu Channel Case (UK v Albania), Merits, [1949] ICJ Rep 4 at 23. Transboundary harm is damage that occurs outside the state where the risk-originating activity takes place.
141 Cheng, Space Law, supra note 100 at 237, 289.
142 ILC, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries, GA Res 56, UNGAOR, 53rd Sess, UN Doc A/56/10 (2001) at 148 [Draft Articles on Transboundary Harm].
143 Ibid at 150–51.
144 Cheng, Space Law, supra note 100 at 638.
145 Ibid.
146 It is settled in international law that only a state may bring a claim on behalf of an injured national. Dembling, supra note 95 at 43. Liability Convention, supra note 12, arts IX–X.
147 Dembling, supra note 95.
148 This guards against the use of diplomatic protection to avoid a claim, whereby the advancement of claims is at the discretion of the state of nationality, as other avenues are permissible. Crawford, Pellet & Olleson, supra note 36 at 910.
149 Liability Convention, supra note 12, art XI(1); Crawford, Pellet & Olleson, supra note 36 at 910.
150 Factory at Chorzow (Germany v Poland) (1925), Merits, PCIJ (Ser A) No 17 at 4, 48, 59; Crawford, Pellet & Olleson, supra note 36 at 911.
151 Hurwitz, supra note 104 at 2.
152 Pedrazzi, supra note 98 at para 15.
153 Crawford, Pellet & Olleson, supra note 36 at 908.
154 Statement of Claim (Letter of the Canadian Secretary of State for External Affairs, 23 January 1979), reprinted in (1979) 18:4 ILM 907 at para 22 [Statement of Claim].
155 Ibid at para 21; Crawford, Pellet & Olleson, supra note 36 at 912–13.
156 Crawford, Pellet & Olleson, supra note 36 at 912.
157 Canada argued that there was a danger posed by the fragments from radioactivity, which constituted damage to property under the Liability Convention. Statement of Claim, supra note 154 at 904; Brearly, Andrew, “Reflections upon the Notion of Liability: The Instances of Kosmos 954 and Space Debris” (2008) 34:2 J Space L 291 at 298.Google Scholar
158 A formal agreement between the two countries was signed on 2 April 1981. Protocol between the Government of Canada and the Government of the Union of Soviet Socialist Republics (2 April 1981), online: <http://www.spacelaw.olemiss.edu/library/space/International_Agreements/Bilateral/1981%20Canada-%20USSR%20Cosmos%20954.pdf>.
159 This incident led to the inclusion of some principles in the UN General Assembly resolution regarding the Outer Space Nuclear Principles. While this statement is non-binding, it has contributed to the understanding and clarification of liability under the Liability Convention. Principles Relevant to the Use of Nuclear Power Sources in Outer Space, GA Res 47/68, UNGAOR, 35th Sess, UN Doc A/RES/47/68 (1992); Pedrazzi, supra note 98 at para 15; Michael Listner, “Revisiting the Liability Convention: Reflections on RORSAT, Orbital Space Debris and the Future of Space Law,” The Space Review (17 October 2011).
160 Pedrazzi, supra note 98 at para 17.
161 Crawford, Pellet & Olleson, supra note 36 at 913.
162 Founded in 1865, the ITU evolved in its regulatory function, and, currently, 193 countries and over 700 private entities and academic institutions are members. ITU, “Overview” (2017), online: <http://www.itu.int/en/about/Pages/overview.aspx>.
163 ITU, Radio Regulations: Articles, Edition of 2016, art 8.5 [ITU Radio Regulations]; Housen-Couriel, supra note 13 at 435. It is notable that art 48 of the ITU Constitution provides for an exception for military radio installations. It exempts “national defence services” from the ITU rules and regulations. Constitution of the International Telecommunication Union, 22 December 1992, 28 ATS 28 (entered into force 1 July 1994) [ITU Constitution].
164 ITU Constitution, supra note 163 at Annex 1012.
165 ITU Radio Regulations, supra note 163, art 1.169.
166 ITU Constitution, supra note 163, art 45.
167 Ibid, art 6(1); Jakhu & Singh, supra note 61 at 6; Matas, Attila, “Harmful Interference related to Space Services” (Lecture delivered at the Strategic Space Law Program, McGill University Institute of Air and Space Law, 31 May 2016) [unpublished] [Matas, “Harmful Interference”].Google Scholar
168 Housen-Couriel, supra note 13 at 439.
169 Attila Matas, “Orbit/Spectrum ITU International Regulatory Framework” (Lecture delivered at the Strategic Space Law Program, McGill University Institute of Air and Space Law, 31 May 2016) [unpublished] [Matas, “Orbit/Spectrum”].
170 Matas, “Harmful Interference,” supra note 167.
171 ITU Radio Regulations supra note 163, arts 11.42, 11.42A, 15.21; Jakhu & Singh, supra note 61 at 83–85, 88.
172 ITU Constitution, supra note 163, art 41.
173 Ibid, art 56; Mountin, supra note 5 at 135.
174 Mountin, supra note 5 at 136.
175 Ibid at 135.
176 Hitchens, Theresa, “Multilateralism in Space: Opportunities and Challenges for Achieving Space Security” (2010) 4 Sp & Def J 3.Google Scholar
177 Of the 193 member states at the time, 165 approved of the amendment. ITU Radio Regulations, supra note 163, as modified by WRC-12, art 5.21; Matas, “Orbit/Spectrum,” supra note 169.
178 Ibid.
179 Stephen Gorove, Developments in Space Law: Issues and Policies (Leiden: Martinus Nijhoff, 1991) at 49.
180 Crawford, Pellet & Olleson, supra note 36. It is notable that the notion of “international responsibility” of a state to supervise activities carried out by the state or those under its legal structure under the international space law regime differs from “state responsibility” under the law of state responsibility.
181 Jakhu & Dempsey, supra note 86 at 14. Similar draft articles have been produced that relate to outer space, including those relating to the responsibility of international organizations and transboundary harm. However, for the purposes of this article, these will not be considered as they are outside the scope of consideration. Draft Articles on Transboundary Harm, supra note 142; ILC, Draft Articles on the Responsibility of International Organizations, GA Res 66, UNGAOR, 63rd Sess, UN Doc A/66/10 (2011).
182 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Merits, [2015] ICJ Rep 3 at paras 128, 399–407.
183 Draft Articles on State Responsibility, supra note 69, general principles (arts 1–3); attribution (arts 4–11); breach of international obligation (arts 12–15); responsibility in connection with another state (arts 16–19); circumstances precluding wrongfulness (arts 20–27).
184 Ibid, general principles (arts 28–33); reparations (arts 34–39); breaches of peremptory norms (arts 40–41).
185 Ibid, invocation of the responsibility of a state (arts 42–48); countermeasures (arts 49–54).
186 Ibid, arts 55–59. James Crawford, International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002) at 2.
187 Draft Articles on State Responsibility, supra note 69, art 1.
188 Ibid, art 2.
189 Ibid, arts 4–7.
190 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, [1986] ICJ Rep 14 at para 115 [Nicaragua].
191 Draft Articles on State Responsibility, supra note 69, art 8, commentaries at 47; Trapp, Kimberly N, State Responsibility for International Terrorism (Oxford: Oxford University Press, 2011) at 42–43.CrossRefGoogle Scholar
192 Draft Articles on State Responsibility, supra note 69, art 9.
193 Ibid, arts 2, 12
194 Ibid, art 35.
195 Ibid, art 36.
196 Ibid, art 37.
197 UN Charter, supra note 42, art 35.
198 Draft Articles on State Responsibility, supra note 69, art 55.
199 Pedrazzi, supra note 98 at para 11.
200 The issue of lex specialis and how it applies to specialized bodies of law that interact has been much debated, particularly as it relates to the interaction of international humanitarian law (IHL) and international human rights law (IHRL). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 at para 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136 at para 106; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), [2005] ICJ Rep 168 at paras 216–20. These discussions reflect the view that potentially competing lex specialis should be read harmoniously to the greatest extent possible and that the analysis should be considered through the lens of the specialized body of law. Further consideration of the interaction of other areas of international law (i.e., IHL and IHRL) and how they may apply in the present scenarios is outside the scope of this article.
201 Crawford, Pellet & Olleson, supra note 36 at 140; Zorzetto, Silvia, “The Lex Specialis Principle and Its Uses in Legal Argumentation: An Analytical Inquiry,” Eunomia Revista en Cultura de la Legalidad (September 2012) at 64, online: <https://e-revistas.uc3m.es/index.php/EUNOM/article/viewFile/2093/1027>.Google Scholar
202 Draft Articles on State Responsibility, supra note 69, art 55, commentary at para (2).
203 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art 30(3) (entered into force 27 January 1980).
204 Draft Articles on State Responsibility, supra note 69, art 55, commentary at para (2).
205 Ibid, art 55, commentary at para (3).
206 Ibid, art 55, commentary at para (4).
207 Ibid.
208 Mountin, supra note 5 at 136; Housen-Couriel, supra note 13 at 440–41.
209 The interference event may provide a signature that can be used to determine the source. However, due to the nature of the space domain, especially where there is no damage to a space asset, it may not be suspicious due to the expansive and “distant nature of the domain” and the ability to masquerade assets as those operating for other purposes (i.e., military satellites pretending to be civilian or commercial). Zenko, supra note 48.
210 This was the case when Sputnik I was launched, as the United States did not launch a protest because they wanted to take advantage of the orbital overflight of other countries when they launched their own satellite shortly thereafter. Mountin, supra note 5 at 139.