The conflict in Ukraine and space: legal aspects and the consequences for international cooperation
João Nuno Frazão
The current conflict in Ukraine is a major issue on the European and international agendas. Due to its complexity, all areas of this conflict feature, unsurprisingly, equally complex legal issues. As such, we are interested in knowing the potential legal consequences of this conflict at the space domain and the impacts for international cooperation in this matter.
The Russian invasion of Ukraine caused, besides the obvious suffering for the Ukrainian people, immediate reactions from the international community, especially the European Union (EU), the United States of America and, in general, the Member Countries of the Atlantic Alliance (NATO). The response – firm, global and unprecedented – is noticeable, among many others, on the political, economic, and diplomatic levels.
Regarding space matters, the first news on possible consequences in the space domain emerged at the end of February, through several tweets[1] published by the president of the Russian Space Agency (Roscomos), Dmitry Rogozin, about the International Space Station (ISS). In response to the heavy economic sanctions imposed by the Biden Administration, the Roscomos threatened[2] to disconnect the propulsion systems of the Russian module which, according to its president, could cause uncontrolled de-orbiting of the ISS and, as a result, hit the surface of the Earth.
This position of the Roscomos was not exactly new: it had already happened back in 2014[3], then in the context of US economic sanctions, and again in 2021[4]. In fact, as we know, last year was marked by Russia’s hostile and provocative position against the Western world, also in space. In November[5], an anti-satellite missile was fired from Russian orbiting space objects with the aim of destroying a Russian satellite that was inactive, which caused thousands of space debris and endangered the ISS. This episode earned widespread condemnation from Western countries, including from space powers such as the United States[6], the United Kingdom and France. This behaviour, due to its gravity, has generated, for obvious reasons, alarm in the international community, even more so when it may constitute a violation of the rules of the Outer Space Treaty (1967). In fact, its article IV, in the first paragraph, states that the States Parties “undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner”.
Russia, one its States Parties – at the time, the Soviet Union, which was not only one of the first States to ratify the Treaty, but also actively participated in the negotiations, drafting and final adoption of the text – by placing in orbit a space object capable of firing an anti-satellite missile, violated, in all likelihood, the obligation arising from that article IV, precisely because it possesses space objects in orbit that have the capacity to interfere with, and even destroy, other space objects.
Getting back to the ISS, a possible scenario of it going out of control in orbit and falling on the surface of the Earth has been ruled out by NASA. It should be noted that the ISS has been in full operation since the late 1990s and is perhaps the greatest symbol of international cooperation in space.
The Intergovernmental Agreement, dating from 1998 – a multilateral agreement with the participation of the United States, Russia, the European Space Agency (ESA), Canada and Japan – says so, the purpose of which is to “establish a long-term international cooperative framework among the Partners, on the basis of genuine partnership, for the detailed design, development, operation; and utilization of a permanently inhabited civil International Space Station for peaceful purposes; in accordance with international law” [article 1(1)]. In this context, in a situation of Russia’s deliberate intention to abandon the ISS – by disconnecting the propulsion systems that it manages and is responsible for – and, therefore, endangering the astronauts aboard the ISS, as well as sending it crashing uncontrollably on the surface of the Earth, what are the main legal consequences on top of the table?
In a first level, the Intergovernmental Agreement, in its article X, imposes a general duty, extended to all partners, to operate the elements that they respectively provide, “in a manner that is safe, efficient, and effective”. In other words, although the ISS is formed by different modules, each one operated by different partners, all of them are interdependent, thus one can understand the scope of this rule. On a second level, and with additional relevance, the legal framework concerning the ISS, “in accordance with international law” [also, article 2 (1)], considers the international space treaties. We are talking about the Outer Space Treaty (1967), the Rescue Agreement (1968), the Liability Convention (1972) and the Registration Convention (1975).
Concerning the Outer Space Treaty, article IX imposes a duty similar to that of article X of the Intergovernmental Agreement, i.e., “in exploring and use of outer space (…), the States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities (…) with due regard to the corresponding interests of all other States Parties to the Treaty”. This same article IX even imposes a duty of prior consultation with the other partners before undertaking any activity that “would cause potentially harmful interference”. On the other hand, astronauts in orbit, in this case aboard the ISS, are considered “envoys of mankind”, and all State Parties have a duty to render “all possible assistance in case of accident (…) or emergency landing on the territory of another State Party or on the high seas” – according to article V of the Outer Space Treaty – and the Rescue Agreement further extends such duty: “(…) if necessary, extend assistance in search and rescue operations for such personnel (…)” of other States Parties (article 3).
Regarding possible damages, article VII of the Outer Space Treaty and the Liability Convention established the legal regime for damages caused by space objects on the surface of the Earth, in air space or in outer space. In detail, article II of the Liability Convention presents a dual system of liability: (i) objective, for damages caused by space objects on the surface of the Earth or to aircraft in flight, and (ii) subjective, damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State. The Convention system is based on the “launching State” criterion [article I (c)], however, in view of the characteristics of the ISS, this may lead to difficulties in identifying a particular State since, in practice, multiple space objects (registered by each of the intervening partners) are involved and connected to each other, so that in the event of a possible crash of the ISS on the surface of the Earth, the actual determination and formal attribution of liability would certainly present serious obstacles. In view of this, the solution reached in the Intergovernmental Agreement was to adopt a “cross-waiver of liability” mechanism, that is, a “reciprocal exemption of liability” between all parties [article 16 (1)], with important exceptions: it will not apply, inter alia, in the case of damage caused by “wilful misconduct” [article 16 (3) (d) (3)], which certainly includes a wilful intent by Russia to shut down the propulsion systems of the ISS in the module which it is responsible for operating. All in all: a deliberate action by Russia, intentionally disabling its module, with a consequently de-orbiting of the ISS and eventual crash on the surface of the Earth, would impose on all ISS partners joint and several liability for damages caused, nevertheless, without prejudice to the other partners’ right to compensation against Russia under the general terms of the Liability Convention.
Still about the conflict in Ukraine, it is worth mentioning the topic of Starlink. This mega constellation of satellites still under development, provides satellite internet services, and is operated by the private US company Space X. In the early days of the conflict, following alleged Russian interference with Ukrainian government and intelligence communications and internet services, the Ukrainian Deputy Prime Minister asked[7] Space X to support Ukraine. Two days later, Starlink ground stations were already on Ukrainian territory[8], thus providing internet services – the extent and scope of which are, to this day, unknown. In response, the president of Roscomos stated[9] that, in view of this, such space objects would not, after all, have a simple civilian use, i.e., implying that Starlink would have, in the context of the Russian-Ukrainian conflict, a strategic-military preponderance, of express support to one of the belligerents, in this case, Ukraine. From a legal point of view, the issue is a delicate one, that much is clear: according to article VI of the Outer Space Treaty, space activities of non-governmental entities – hence including any private parties – are subject to the ” authorization and continuing supervision ” of the respective countries, which also have the “jurisdiction and control” of space objects registered by them (so says article VIII of the Outer Space Treaty, being for this purpose the respective “State of registry” under the Registration Convention). In this way, it would not be surprising if Russia considered Starlink as not having only a civilian use (which, strictly speaking, it has already done), recognising that this is a private space object, but registered in the US, and that the latter is responsible for the consequences of the acts carried out by Space X, which, in Russia’s view, expressly and explicitly supports the Ukrainian government. In this context, given the political-strategic position of Russia, could it interpret that Starlink would have “military objectives” and, under the Law of War (see Geneva Conventions), constitute a military target, granting Russia legitimacy to neutralise it? The debate does exist, especially given Russia’s military capability in orbit, as demonstrated by the end of 2021, as noted in the first paragraphs.
Even if many of the legal possibilities do not yet have any concrete results, there is another aspect that is seriously compromised by the current international context: international cooperation. International cooperation in space is, without any doubt, the basic element that has allowed historic and extremely important objectives to be achieved. As an example, the Outer Space Treaty refers to international cooperation in its preamble and, in fact, it has been the key element over the last thirty years after the dissolution of the Soviet Union. As far as space is concerned, the ISS is perhaps the greatest and most prominent example of international cooperation, but there are many other examples where the collaboration of both countries and international organisations is essential to space activities. At present, the invasion of Ukraine, orchestrated by Russia, contributes negatively to international cooperation in all domains, including space, especially in projects in which Russia participates. The ISS example is proof of this – despite the professionalism and comradeship among astronauts – and the next chapters are still uncertain until 2031, when the ISS is planned to be discontinued, as NASA announced[10] barely three weeks before the conflict began. On the European scale, ESA announced[11] the suspension of ExoMars, an unmanned mission aimed at exploring planet Mars, with collaboration from Roscomos. On the other hand, in relation to civil aviation, the European Aviation Safety Agency (EASA) has adopted[12] mitigation measures for possible difficulties of Global Navigation Satellite Systems (GNSS) in geographical areas around the conflict zone. Finally, from a security and defence perspective, a strategy to strengthen space capabilities in this regard is also envisaged in the EU, in line with recent European Council conclusions[13].
Many other legal questions arise, but one thing is certain: space is a key domain of the present and the future and, more than ever, the next chapters will certainly deserve close attention of the international community.
[1] https://twitter.com/Rogozin/status/1496933548372209669, 24.02.2022.
[2] “Guerra das Estrelas: o palco para “a mesquinhez de um pequenino homem com muito poder a brincar com fósforos” e armas espaciais”, Expresso, 24.03.2022, https://expresso.pt/guerra-na-ucrania/2022-03-24-Guerra-das-Estrelas-o-palco-para-a-mesquinhez-de-um-pequenino-homem-com-muito-poder-a-brincar-com-fosforos-e-armas-espaciais-4ac93732
[3] “Russia Threatens To Cut Ties to International Space Station Over U.S. Sanctions”, Time, 14.05.2014, https://time.com/99509/russia-threatens-nasa/
[4] “Russian Space Chief Says U.S. Sanctions Keep Satellites Grounded”, Bloomberg, 07.06.2021, https://www.bloomberg.com/news/articles/2021-06-07/russian-space-chief-says-u-s-sanctions-keep-satellites-grounded
[5] “Debris From Test of Russian Antisatellite Weapon Forces Astronauts to Shelter”, New York Times, 15.11.2021, https://www.nytimes.com/2021/11/15/science/russia-anti-satellite-missile-test-debris.html
[6] “US says it ‘won’t tolerate’ Russia’s ‘reckless and dangerous’ anti-satellite missile test”, CNN, 16.11.2021, https://edition.cnn.com/2021/11/15/politics/russia-anti-satellite-weapon-test-scn/index.html
[7] https://twitter.com/FedorovMykhailo/status/1497543633293266944, 26.02.2022
[8] “Elon Musk’s Starlink arrives in Ukraine but what next?”, BBC News, 01.03.2022, https://www.bbc.com/news/technology-60561162
[9] “How will Ukraine keep SpaceX’s Starlink internet service online?”, MSN, 03.03.2022, https://www.msn.com/en-gb/entertainment/news/how-will-ukraine-keep-spacexs-starlink-internet-service-online/ar-AAUz90O?ocid=BingNewsSearch
[10] “NASA plans to retire the International Space Station by 2031 by crashing it into the Pacific Ocean”, CNN, 02.02.2022, https://edition.cnn.com/2022/02/02/world/nasa-international-space-station-retire-iss-scn/index.html
[11] “N° 9–2022: ExoMars suspended”, European Space Agency, 17.03.2022, https://www.esa.int/Newsroom/Press_Releases/ExoMars_suspended
[12] “EASA publishes SIB to warn of intermittent GNSS outages near Ukraine conflict areas”, European Union Aviation Safety Agency, 17.03.2022, https://www.easa.europa.eu/newsroom-and-events/news/easa-publishes-sib-warn-intermittent-gnss-outages-near-ukraine-conflict?utm_campaign=d-20220318&utm_term=pro&mtm_source=notifications&mtm_medium=email&utm_content=title&mtm_placement=content&mtm_group=easa_news
[13] “A Strategic Compass for a stronger EU security and defence in the next decade”, Council of the European Union, 21.03.2022, https://www.consilium.europa.eu/en/press/press-releases/2022/03/21/a-strategic-compass-for-a-stronger-eu-security-and-defence-in-the-next-decade/