DISRUPTION OF SATELLITE TRANSMISSIONS AD BELLUM AND IN BELLO: LAUNCHING A NEW PARADIGM OF...

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Disruption of Satellite Transmissions ad Bellum and in Bello: Launching a New Paradigm of Convergence

Deborah HousenCouriel

Israel Law Review / Volume 45 / Issue 03 / November 2012, pp 431 458DOI: 10.1017/S0021223712000192, Published online:

Link to this article: http://journals.cambridge.org/abstract_S0021223712000192

How to cite this article:Deborah HousenCouriel (2012). Disruption of Satellite Transmissions ad Bellum and in Bello: Launching a New Paradigm of Convergence. Israel Law Review, 45, pp 431458 doi:10.1017/S0021223712000192

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DISRUPTION OF SATELLITE TRANSMISSIONS AD BELLUM AND IN BELLO:LAUNCHING A NEW PARADIGM OF CONVERGENCE

Deborah Housen-Couriel*

The dramatic increase over the past decade in the quantity and sophistication of communications satellitesin the earth’s orbit raises new legal questions regarding the hostile disruption of satellite transmissions. Asdependence on satellite communications in the military, governmental, economic and civilian spheres esca-lates globally, both states and non-state entities have become increasingly vulnerable to the consequences ofdisrupted transmissions, whether accidental or intentional. The implications of this new phenomenon forinternational humanitarian law (IHL) are better understood in the context of a preliminary analysis ofthe principles and norms underlying three regimes which now converge around satellite activities ad bel-lum. These are the substantive law regarding freedom of transborder communication, including relevant juscogens prohibitions; international telecommunications regulation; and space law. The present analysisfocuses on (a) the development of a taxonomy of the types of hostile disruption of satellite transmissions,(b) an examination of the three present normative regimes which govern international satellite trans-missions in peacetime, and (c) the relevance of these three regimes for the development of applicableIHL. Overall, the article addresses the legal and policy aspects of an improved international response tothe growing phenomenon of transmission disruption on the part of state and non-state entities both inpeacetime and during war. Greater clarity regarding the applicable legal norms will enable both stateand non-state actors to utilise satellite systems with increased certainty, reliability and effectiveness.

Keywords: satellite, harmful interference, ASAT, Liability Convention, Hague Article 53

1. INTRODUCTION

Satellite systems and the myriad types of data transmitted over them have become an integral and

ubiquitous element of the twenty-first century civilian arena, as well as the military battlefield.1

The dramatic increase in their utilisation by both state and non-state actors for civilian, military

and dual use purposes over the past decade engages and challenges the existing normative frame-

works applicable to both the jus ad bellum and the jus in bello regarding satellite transmissions.2

* Adv, LLM, MPA, Researcher, Yuval Ne’eman Workshop for Science, Technology and Security, Tel AvivUniversity, [email protected]. The author is indebted to Ram Levi, Haim Mazar, Nadav Minkovski, Tal Ofek,Pnina Sharvit-Baruch and Tally Zingher for their valuable comments. Inaccuracies are all the author’s own.1 Definitive numbers of satellites in orbit at any given time, and their communications coordinates, are difficult topinpoint. One commercial initiative, Lyngsat, provides data for hundreds of operational satellites (http://www.lyngsat.com/). The ITU’s Space Services Department lists frequency assignments for 2,234 operational and non-operational satellites as of 28 February 2012 (http://www.itu.int/ITU-R/space/snl/listinuse/index.asp). See also theexpected increase in satellite transponder capacity in Figures 1.5 and 1.6 in International TelecommunicationUnion (ITU), ‘Regulation of Global Broadband Satellite Communications’ (September 2011), http://www.itu.int/ITU-D/treg/Events/Seminars/GSR/GSR11/documents/BBReport_BroadbandSatelliteRegulation-E.pdf.2 Some of the present non-military uses of satellites are telecommunications (including telephony, internet andother applications), radio and television broadcasting, military communications, guidance of GPS, Galileo andother location systems, scientific research, astronomy, environmental and meteorological monitoring, cellular tele-phony and internet. Military uses of satellites include command and control of weapons systems, troop

Israel Law Review 45(3) 2012, pp 431–458. © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem, 2012.

doi:10.1017/S0021223712000192

In a rapidly developing international arena, the ramifications of ad bellum legal regimes for

IHL is an issue that has engaged international lawyers, regarding which some have observed the

difficulty of drawing clear lines between a state of peace and a state of war, or even situational

consistency within a war zone.3 Beyond questions of status mixtus, the substantive nature of IHL

regarding particular topics such as human rights and refugee law may be influenced by the emer-

gence of new human needs of protection. The development of treaty and customary law is, by

nature, an ongoing process that reflects new needs such as these and, together with general prin-

ciples of law and opinio juris, eventually impacts upon and alters IHL.4 In the present context, we

argue that the dramatic changes in the nature of interstate communications over the past few dec-

ades and vastly increased dependence upon communications infrastructures and networks,

including satellite systems, call for a re-examination of the presently applicable aspects of

relevant IHL. The analysis herein will endeavour to draw out a number of underlying principles

that govern peacetime satellite communications, in order to reflect upon the development of IHL

in the light of these new communications contexts.

1.1 BACKGROUND

Since the launch in 1957 of the world’s first artificial satellite, Sputnik 1, by the USSR, thousands

of satellites have been launched and placed into orbit on behalf of states, international organis-

ations and private consortia by utilising the capabilities of a ‘space club’ of states that have

the technological capabilities to launch satellites unilaterally.5 Currently, several hundred

communications, reconnaissance and early warning systems. For definitions of the types of satellite communi-cations see ITU, Radio Regulations (Geneva, 2008), art 1.3 Yoram Dinstein also addresses status mixtus, and has emphasised that states cannot agree between them to foregoIHL even if many aspects of their relations can be characterised as non-belligerent (see Yoram Dinstein, War,Aggression and Self-Defense (4th edn, Cambridge University Press 2005) 18–19. On temporal difficulties in theapplication of IHL, see Derek Jinks, ‘The Temporal Scope of Application of International Humanitarian Lawin Contemporary Conflicts’ (Harvard Program on Humanitarian Policy and Conflict Research 2003), http://www.hpcrresearch.org/sites/default/files/publications/Session3.pdf. See also Leslie C Green, The ContemporaryLaw of Armed Conflict (Manchester University Press 1994); M Shaw International Law (6th edn, CambridgeUniversity Press 2009) Chapter 21 ‘International Humanitarian Law’; International Committee of the RedCross (ICRC), ‘IHL and Other Legal Regimes’ (29 October 2010), http://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/overview-other-legal-regimes.htm; and Eyal Benvenisti, ‘Rethinking the Divide BetweenJus ad Bellum and Jus in Bello in Warfare against Non-State Actors’ (2009) 34 Yale Journal of InternationalLaw 541.4 See Theodor Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’(1996) 90 American Journal of International Law 238. The Martens Clause in the Preamble to HagueConvention IV and Article 1(2) of Additional Protocol I are also relevant (respectively, Hague Convention(IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws andCustoms of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461, andProtocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims ofInternational Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol 1)).See the discussion on the development of IHL in Shabtai Rosenne, ‘International Humanitarian Law’, inShabtai Rosenne, The Perplexities of Modern International Law (Nijhoff 2002) 177, 181–85.5 The states presently capable of unilaterally launching satellites into orbit are (in order of their development oflaunching capability): USA, France, Japan, China, UK, India, Israel, Russia, Ukraine and Iran. Several privateentities have also launched satellites, including SpaceEx (in 2008) and Orbital Sciences Corporation.

ISRAEL LAW REVIEW [Vol. 45:3432

satellites are operational in various types of orbit around the earth and other planetary bodies.6 In

addition, thousands of unused satellites and satellite fragments remain in the earth’s orbits, col-

lectively known as space debris.7

Satellite system operations combine two elements: the physical, corporeal elements of the

actual satellite launched into space and its corresponding ground stations, and the element of

wireless transmissions that utilise the electromagnetic spectrum in connecting these physical

components (see Figure 1). For the purposes of the present legal analysis, the electromagnetic

Figure 1 Physical and virtual elements of satellite communications systems (Source: wirelessdictionary.com)

6 Satellites are launched into several types of earth orbit, including geostationary orbit (at 35,786 km above theearth), highly elliptical orbit (HEO), polar orbit and low earth orbit (LEO – about 400 km above the earth).7 The problem of space debris and its potential for disruption of satellite transmissions is an important one, and isincreasingly dealt with by global policymakers. For an example of international efforts to cope with the problemsposed by space debris, see COPUOS, UN Office for Outer Space Affairs, ‘UN Space Debris MitigationGuidelines’ (2010), http://www.iadc-online.org/References/Docu/SpacenDebrisnMitigationnGuidelines_COPUOS.pdf

2012] DISRUPTION OF SATELLITE TRANSMISSIONS 433

waves carrying satellite communications are considered ‘virtual’ and, as a rule, cause no kinetic,

physical impact on the satellites they connect.8 As with other computerised systems used for civi-

lian and military applications around the globe, major questions of the vulnerability of satellites

to computer network operations (CNOs) arise regarding the utilisation of these systems.9

Specifically, the use of the electromagnetic spectrum to disrupt satellite transmissions raises

core questions around the interpretation of the term ‘the threat or use of force’ in UN Charter

Article 2(4). Moreover, measures undertaken by a state in anticipation of hostile anti-satellite

activity (ASAT) by another state or by a non-state actor are liable to challenge the permitted

parameters of self-defence under Article 51.10

1.2 CLARIFICATION OF LEGAL ISSUES

Some of the legal questions that arise in the context of satellite disruptions can be treated in the

context of electronic warfare, which has been part of nations’ military arsenals for decades.11 Yet

there are two differences between transmission disruption and electronic warfare that give rise to

distinctions as to the applicable regime. First, satellite transmissions in outer space are subject to

the specific regime applicable to space and celestial objects – a different one from that applicable

to electronic warfare that largely takes place in a terrestrial context.12 Secondly, disruption of sat-

ellite transmissions may be caused by physical events that are unrelated to the electromagnetic

spectrum, such as the bombing of a ground station. The concept of electronic warfare is thus

not broad enough to cover the range of possible disruptions to satellite transmissions.

In addition, it is important to note the (as yet) unresolved and compelling issue of whether a

non-physical attack on a satellite system is in fact an armed attack – a relevant legal dilemma for

an increasing number of states. More and more, international actors need to know the scope of

circumstances in which hostile disruption of a satellite transmission constitutes an act that justifies

8 The author is grateful to Professor Michael Rycroft of the International Space University for a discussion of theextent to which disruption of electromagnetic communications may be considered ‘physical’, or as having physicalramifications on the satellites between which they are transmitted. Electromagnetic pulse (EMP) attacks on satel-lites are, of course, an exception.9 The US Department of Defense defines CNO as including attacks on civilian networks, and including computernetwork attacks (CNA), computer network defence (CND) and computer network exploitation (CNE). See JP3–13, ‘Information Operations’, 13 February 2006, II-4; and JP 6-01, ‘Joint Electromagnetic SpectrumManagement Operations’, 20 March 2012, I-11. See also Madelyn R Creedon, ‘Space and Cyber: SharedChallenges, Shared Opportunities’, and Jan Kallberg, ‘Designer Satellite Collisions from Covert Cyber War’,both in (2012) Strategic Studies Quarterly, 1 and 123, respectively.10 The issues will differ depending on the ad bellum or in bello context, yet questions addressing state sovereignty,military necessity, immediacy, proportionality, distinction between combatants and non-combatants, attributionand reparation are currently at the core of discussion among international legal scholars.11 ‘The term [electronic warfare (EW)] refers to any action involving the use of [electromagnetic] or directedenergy… to control the [electromagnetic spectrum] or to attack the enemy. EW includes three major subdivisions:electronic attack …, [electronic protection], and electronic warfare support’: US Joint Chiefs of Staff, JP 3-13.1,‘Electronic Warfare’, 25 January 2007, I-2). See also JP 6-01, ‘Joint Electromagnetic Spectrum ManagementOperations’ (n 9).12 For instance, the US military doctrine on the ‘Role of Electronic Warfare in Military Operations’ does not referto activities in outer space: JP 3-13.1, ‘Electronic Warfare’, ibid I-2.


self-defence, and what the parameters of legitimate response to such an act are.13 This important issue

is beyond the scope of the present analysis; nevertheless the legal regime that is evolving around these

issues will significantly impact on the three regimes reviewed herein.14

Wewill focus here first on the principles underlying the law that applies to transmissions in peace-

time in order to better understand present developments and dilemmas, and then on an analysis of the

normative regime under IHL.15Analyses of the legal regimes applicable to satellites and satellite com-

munications at the normative level have largely taken as their point of departure either space law or the

regulatory regime of the International Telecommunication Union (ITU) for the coordination among

states of the utilisation of the electromagnetic spectrum and certain orbital slots. This article aims to

integrate both points of departure and to bring into the analysis a third body of law, the underlying

international customary regime applicable to transborder communication. This approach views all

elements of satellite systems, including the space segment (that is, the satellite in orbit), the ground

segment (the transmission and reception facilities on earth) and the electromagnetic transmissions

among them (uplinks, downlinks and intra-satellite signals) as a unified communications system.

The present situation, whereby an attack on a ground station is treated by one legal approach

that does not account for loss of transmission signal on the uplink nor intra-satellite transmissions

in outer space, lacks coherence. Similarly, the law governing disruption of transmissions in the

space segment does not, at present, take into account damage to critical systems on earth that rely

upon seamless satellite communications, such as GPS, cellular communications and financial

data systems. We propose that the unique convergence of the three applicable normative frame-

works around satellite system operations, and the perception of these operations as an integrated

whole, mandate the recognition of a lex specialis for satellite communications, which in turn

should be reflected in the applicable IHL regime.

In concert with this approach, this article will first analyse the normative frameworks regard-

ing the disruption of transmissions in peacetime, and then under IHL, as follows. Section 2 below

13 See Michael M Schmitt, ‘Cyber Operations in International Law: The Use of Force, Collective Security,Self-Defense and Armed Conflicts’ (2010) Proceedings of a Workshop on Deterring Cyber Attacks, NationalAcademy of Sciences; Thomas C Wingfield, ‘Legal Aspects of Offensive Information Operations in Space’(1998/9) USAF Academy Journal of Legal Studies, 121; Michel Bourbonniere, ‘Law of Armed Conflict(LOAC) and the Neutralisation of Satellites, or ius in Bello Satellitis’ (2004) 9 Journal of Conflict and SecurityLaw 43; and Kurt M Schendzielos, ‘Electronic Combat in Space: Examining the Legality of Fielding aSpace-Based Disruptive Electromagnetic Jamming System’, Master’s Thesis, Army Command and GeneralStaff College, 15 June 2007. On the addition of a relevant fifth domain (cyberspace) to the traditional four domainsof warfare (land, sea, air, space), see ‘War in the Fifth Domain’ The Economist (1 July 2010).14 Several initiatives to clarify the international law norms appropriate to cyberspace activity on the part of statesare currently under way in a number of states and organisations such as NATO, the European Union (EU) and theUnited Nations (UN).15 IHL has been explained by the ICRC as ‘a set of rules which seek, for humanitarian reasons, to limit the effectsof armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts themeans and methods of warfare’: ICRC, ‘What is International Humanitarian Law?’ (July 2004), http://www.icrc.org/eng/resources/documents/legal-fact-sheet/humanitarian-law-factsheet.htm. As discussed in text accompanyingn 3, application of the laws of war is no longer restricted to a situation in which states have formally declared astate of war between them, but it rather ‘comprehends situations of armed conflict and military occupation in gen-eral, whether formally recognized as “war” or not’: Adam Roberts and Richard Guelff, Documents on the Laws ofWar (2nd edn, Clarendon Press 1989).


will address the types of disruption to transmissions, both physical and virtual; Section 3 will

analyse the three peacetime normative regimes which come into play as a result of disruption;

and Section 4 will examine selected IHL issues. In concluding, we propose that new normative

paradigms under IHL regarding satellite transmissions are needed in order to appropriately

address the rapid pace of change in satellite-related technologies that provide a constantly

expanding capacity for disruption of transmissions.

2. DEVELOPING A TAXONOMY OF DISRUPTIONS TO SATELLITE TRANSMISSIONS

IN LIGHT OF POTENTIAL THREATS

2.1 THE DUAL NATURE OF POTENTIAL THREATS TO SATELLITE SYSTEMS

As stated above, satellite systems combine both physical apparatus and virtual data transfers.

Thus, disruptions may either be physical, caused by impact with the satellite or the ground

station; or virtual, interfering with the electromagnetic communications systems of the satellite

on the earth and to and from space.16 Satellites rely upon computer networks and the electromag-

netic spectrum for the full range of their operations, from the launch stage to stabilisation in orbit,

for telemetry, tracking and command (TTC) broadcast, narrowcast and point-to-point communi-

cations; intra-satellite communications, and eventual shutdown. For present purposes, the hostile

disruption of transmissions, both physically and virtually, will be treated as relevant throughout

the full range of the satellite’s lifespan, which can at present extend to about 20 years.17 Types of

hostile disruption are shown below in Figure 2.

Because of the varied and technologically evolving nature of hostile disruptions, it is impor-

tant to develop a taxonomy of their impact on transmissions and on the satellites themselves in

the event of physical disruption, of their timing within the satellite’s lifespan, and of the collateral

damage that they may cause. The legal and policy context for such an initiative (to be treated

elsewhere) is the growing threat to international stability posed by potential disruptions, widely

acknowledged at the international level.18 Specifically, threats to satellite transmissions as a result

of increased use of outer space may be categorised into a taxonomy of disruptions, such as sat-

ellite collision, harm caused by space debris, and damage to ground stations; as well as jamming,

laser blinding, morphing and piggybacking of signals, and interference with the satellite’s com-

puter systems housed in ground stations.19 The outcome of disruption at the level of physical

16 See n 8.17 See King and Riccio (n 22).18 See NATO, ‘NATO 2020: Assured Security; Dynamic Engagement’ (17 May 2010), http://www.nato.int/cps/en/natolive/official_texts_63654.htm, and William J Lynn, ‘A Military Strategy for the New SpaceEnvironment’ (2011) 34 The Washington Quarterly 7.19 See presentation by Ram Levi and Tal Dekel, ‘Space Security: National Capabilities and Programs’, UnitedNations Institute for Disarmament Research, April 2011; and Lubos Perek, ‘Space Debris Mitigation andPrevention: How to Build a Stronger International Regime’ (2004) 2 Astropolitics 215.


impact may be harm which goes beyond the physical damage caused to the satellite, also impair-

ing electromagnetic communications. This dual threat introduces new vulnerabilities:20

Space systems, however, are now vulnerable to a variety of new forms of attack. Broadly speaking,

these emerging threats take two forms: non-kinetic, cyber-enabled attacks made possible by connecting

satellite communications systems to the Internet; and kinetic, satellite-to-satellite attacks enabled by the

proliferation of inexpensive nanosatellites that are easy to launch and hard to detect, particularly in high

orbits.

Yet, as we shall see below, the present legal approaches to these two types of damage are not

identical. Physical threats to satellite systems are governed by one regime, and disruption of

transmissions, or ‘harmful interference’ in the terminology of the ITU, by another.

At the virtual level of electromagnetic communications, disrupted signals can pose a funda-

mental threat to states when the satellite communications are also part of the control systems of

critical national infrastructures such as banking and financial systems, air traffic control, electri-

city grids, early-warning weather systems and mass media.21 Military communications and data

Figure 2 Points of possible disruption and selected examples

20 Matthew Kleiman and Sonia McNeil, ‘Red Lines in Outer Space’ The Space Review, (5 March 2012).21 See NATO, ‘Defending the Networks: The NATO Policy on Cyberdefense’, 4 October 2011; Council of theEuropean Union, Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against informationsystems [2005] OJ L69, 16 March 2005, 67; Council of the European Union, Council Directive 2008/114/EC of 8December 2008 on the identification and designation of European critical infrastructures and the assessment of theneed to improve their protection [2008] OJ L345, 23 December 2008, 75.


transfer are also highly dependent on satellite communications, often utilising commercial satel-

lites.22 USAF Major Christopher Petras, writing in 2002, cites the US Commission to Assess US

National Security Space Management and Organization in noting the dependence of national

security operations on commercial satellites. He observes ‘the unprecedented convergence of

U.S. military and commercial space activities that has taken place over the past decade and is

indeed likely to continue’.23 This pattern is shared with other states and organisations, despite

the clear prohibition on the militarisation of outer space under the current legal regime.24

2.2 PHYSICAL THREATS TO SATELLITE SYSTEMS

The dangers posed by physical threats to satellite systems were brought to the fore by the

destruction by the US in 1985 of its own P78-1 satellite by missile,25 the January 2007 destruc-

tion by China of one of its own satellites, a similar initiative on the part of the US in February

2008,26 and other, less publicised ASAT events.27 Elimination of one of its own satellites by a

country constitutes, in effect, a public declaration that the satellites of rival nations are feasible

targets. Thus, the prevention of physical destruction of the space segment of satellite systems is

now part of the strategic and tactical planning of state actors. The 2009 military doctrine of the

US Joint Forces on space operations focuses specifically on this vulnerability of satellite systems,

and on the need to anticipate hostile actions against civilian, military and dual-use satellites that

may trigger acts of retaliation and self-defence:28

Military, civil and commercial sectors … are increasingly dependent on space capabilities, and this

dependence is a potential vulnerability. The US will view purposeful interference…with any element

of its space systems (ground, communications or orbital) as an infringement on its rights. …

Commanders must anticipate hostile actions from state and non-state actors intended to deny friendly

forces access to, or use of, space capabilities. They should also anticipate the proliferation and increas-

ing sophistication of space capabilities and products with military utility that could be used by any

adversary for hostile purposes.

22 The US Department of Defense estimates that well over half of its military communications utilise commercialsatellites. See Joseph N Pelton, ‘Satellite Security and Performance in an Era of Dual Use’ (2004) 6 Space Journal(no page given); an interesting timeline of military use of satellites is presented in Mak King and Michael Riccio,‘Military Satellite Communications: Then and Now’, Crosslink (16 July 2010).23 In Christopher M Petras, ‘The Use of Force in Response to Cyber-Attack on Commercial Space Systems’ (2002)67 Journal of Air Law and Commerce 1213, 1214–15.24 See Section 3.3 below.25 Jonathan Eberhart, ‘ASAT Target was Working Research Satellite’, Science News (8 September 1985).26 The US destroyed one of its own satellites with equipment tailored for the interception of intermediate-rangeballistic missiles, claiming safety concerns. Accidents can also happen, as with the 2009 collision between thenon-operational Cosmos 2251 and Iridium 33 over northern Siberia.27 See David Kestenbaum, ‘Chinese Missile Destroys Satellite in 500-mile Orbit’ (19 January 2007), http://www.npr.org/templates/story/story.php?storyId=6923805; ‘US Shoots Down Toxic Satellite’, The Daily Telegraph (20February 2008); and Deborah Housen-Couriel, ‘Satellite Wars are Coming Next’, Jerusalem Post (14 February2007).28 JP 3-14, ‘Space Operations’, 6 January 2009, I-1 (emphasis added).


This doctrine has been recently reiterated and sharpened to specifically (and controversially)

include hostile actions in cyberspace which pose a threat to the US in the economic sphere, con-

ceivably such as serious acts against banking systems or the stock market.29 Similarly, the

Council of the European Union has identified the protection of satellite systems, including trans-

missions, as a security priority in its 2008 proposed Code of Conduct governing outer space

activities.30 Russia and China have included provisions regarding satellites in their 2008 proposed

treaty on space demilitarisation, the Draft Treaty on the Prevention of the Placement of Weapons

in Outer Space.31 Nevertheless, there is no sign that ASAT activities on the part of space club

nations is abating, and the physical threat that they pose to satellite systems, including through

the space debris that they create, is an ongoing source of global concern.32

2.3 THE THREAT OF VIRTUAL DISRUPTION: ‘HARMFUL INTERFERENCE’ TO SATELLITETRANSMISSIONS

All transmissions operate via line-of-sight connections with ground stations, and each satellite is

accorded transmission frequencies for operations in accordance with the inter-governmental regu-

latory regime developed by the ITU,33 as well as slots on the geostationary orbit, when relevant.

These uplinks and downlinks prevent mutual blockage of the electromagnetic waves carrying the

transmissions and minimise ‘harmful interference’, the ITU’s term for virtual disruption of trans-

missions.34 The prohibition on harmful interference is a primary underlying reciprocity principle

of the ITU regime. The core normative prescription in this respect states:35

29 Department of Defense, ‘Cyberspace Policy Report’, November 2011. See Ellen Nakashima, ‘Pentagon:Offensive Cyberattacks Fair Game’, The Washington Post (15 November 2011). The report relates to nationalthreats in cyberspace as a whole. As will be argued below, satellite transmissions constitute a special type of cyber-space activity.30 See art 2, principle 3 and art 4.2 of Council Conclusions on the Draft Code of Conduct for Outer SpaceActivities, (17175/08), Council of the European Union, 17 December 2008.31 Draft Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT), 2008. See, in particular,art 1(e). See also Victor Vasiliev, ‘Treaty on the Prevention of Weapons in Outer Space and the Threat of Forceagainst Outer Space Objects’, in Security in Space: The Next Generation—Conference Report (United NationsInstitute for Disarmament Research, February 2008).32 William J Lynn, ‘A Military Strategy for the New Space Environment’ (2011) 34 The Washington Quarterly 7;Jana Robinson, Advancing Key Foreign Policy Objectives via Space: Europe Case Study (European Space PolicyInstitute 2011); Bruce M DeBlois and others, ‘Space Weapons’ (2004) 29 International Security 50; Ashton BCarter, Seeking Stability in Space: Anti-Satellite Weapons and the Evolving Space Regime (Aspen StrategyGroup 1987); Li Ju-Qian, ‘Legality, Legitimacy and the Consequences: Legal Issues of ASAT’ (2009) 3Journal of Beijing University of Aeronautics and Astronautics 46.33 See Section 3.2 below; arts S9 and S11 of the Radio Regulations (n 2); and ‘How Satellites are Brought intoService: A Brief Account of the Regulatory Steps for Satellites Using Frequency Bands Falling under the‘Coordination Procedures’, World Radiocommunication Conference 2000, Istanbul (Turkey). See alsoUNIDROIT, Draft Protocol to the Convention on International Interests in Mobile Equipment on MattersSpecific to Space Assets, UNIDROIT 2011 – DCME-SP – Doc 3, July 2011.34 See Xuyen T Vuong, ‘Efficient Utilization of the Space Segment Resources’ (2008) IEEE InternationalConference on Advanced Technologies for Communications.35 ITU Constitution, art 45, Collection of the Basic Texts of the ITU Adopted by the Plenipotentiary Conference(edn 2011) (emphasis added). ‘Harmful interference’ is defined in the Annex of the ITU Constitution as


All [communications] stations, whatever their purpose, must be established and operated in such a

manner as not to cause harmful interference to the radio services or communications of other

Member States or of recognized operating agencies.

Hostile harmful interference has been considered a type of electronic warfare36 or information

warfare,37 and is likely eventually to be categorised as a specific type of CNO.38

2.4 PRESENT GAPS IN ENFORCEMENT AGAINST VIRTUAL AND PHYSICAL THREATS

There are dozens of known instances of intentional harmful interference to satellite transmissions

in recent years, including Russian jamming of Chechen satellite telephones in 1994–95; Cuban

disruption of Iranian broadcasts in 2009; Hamas disruption of Israeli satellite broadcasts during

Operation Cast Lead the same year;39 Iranian disruption of Eutelsat transmissions since 2009, the

subject of formal protest to the ITU;40 Brazilian hackers’ disruption of US Navy FLTSAT-8 in

2010; Jordanian jamming of Al-Jazeera transmissions in 2011; and China’s blocking of BBC

transmissions in 2012.41

States may negotiate mitigation of interference bilaterally, or turn to the ITU, which is the

designated arbiter of interference disputes when its member states require the assistance of a

third party. The Radio Regulations contain mechanisms for dispute resolution among the 193

member states, and an Optional Protocol for the Compulsory Settlement of Disputes has been

signed by 64 members.42 Yet the ITU has acknowledged in recent years both the increasing num-

ber of incidents of harmful interference and the inadequacy of its existing dispute resolution

mechanisms, which depend largely on the good will of member states in coordinating frequency

use.43 At the World Radiocommunication Conference that took place in early 2012, an amend-

ment to the Regulations was passed with the intent of improving the process for addressing

‘[i]nterference which endangers the functioning of a [wireless navigation service] or of other safety services orseriously degrades, obstructs or repeatedly interrupts a [wireless communications] service operating in accordancewith the Radio Regulations’.36 See, for instance, Richard Poisel, Introduction to Communications Electronic Warfare Systems (Artech House2002); Wingfield (n 13); and JP 3-13.1, ‘Electronic Warfare’ (n 11).37 See JP 3-13, ‘Information Operations’ (n 9), and Department of Defense, Office of General Counsel, ‘AnAssessment of International Legal Issues in Information Operations’, May 1999, especially ‘Space Law’ at 28.38 CNO is explained at n 9.39 See also Jason Ryan, ‘US Satellites Compromised by Malicious Cyber Activity’, ABC News (16 November2011), and Ram Levi and Tal Dekel, Space Security Events and Attacks Database, Yuval Ne’eman Science,Technology and Security Workshop, TAU, Autumn 2011 (not published).40 Eutelsat, ‘Eutelsat Statement on Deliberate Jamming of Satellite Signals’ (17 November 2011), http://www.eutelsat.com/news/compress/en/2011/html/PR%207611%20Iran/PR%207611%20Iran.html, and ‘France-BasedSatellite Giant Pinpoints Jamming Locations in Iran’, VOA News (17 November 2011).41 Tom Espiner, ‘BBC Hits out at Chinese Broadcast Blocks’, ZDNet (4 May 2012).42 Radio Regulations (n 2) art 15; and Optional Protocol on the Compulsory Settlement of Disputes Relating to theConstitution of the International Telecommunication Union, to the Convention of the InternationalTelecommunication and to the Administrative Regulations (entered into force 1 July 1994).43 See Julie N Zoller, ‘Satellite Regulations: Improving the International Satellite Regulatory Framework’, ITUNews (2012), No.1 under ‘Harmful Interference’.


harmful interference issues,44 and the ITU has publicly committed to re-examine the existing dis-

pute resolution mechanisms.

Thus, despite the existing normative guidelines, there are at present gaps in the effectiveness

of the ITU’s procedures aimed at mitigating harmful interference. Current remedies are limited to

notification and complaint of hostile disruptions to the ITU Secretary-General (as occurred in the

case of the Iranian disruption of Eutelsat transmissions);45 claims for compensation under com-

mercial contracts with satellite service suppliers; and, for physical damage, claims under the 1972

Convention on International Liability for Damage Caused by Space Objects.46 Nonetheless, these

options have rarely been exercised by states. In part, this is because of the absence of a clear tax-

onomy of the types of disruption, and a cohesive understanding of the threats they present and the

legal and practical ramifications of disruption at each stage. The resulting ambiguity has impacted

upon the effectiveness of enforcement measures. For example, even though Canada invoked the

Liability Convention in its 1978 claim against Russia for damages in the wake of the crash of

RORSAT Cosmos 954 over Canadian territory, the final payment of damages mentioned neither

the Convention itself nor the head of damage defined by it.47

One approach to remedying part of this ambiguity is to combine the above-mentioned taxon-

omy of disruptions with a results test, or gradient, of the damage caused to communications and

the de facto effects of disruption. Another, narrower, approach could focus on the particular stage

of transmission: disruption of the terrestrial element of the satellite system being perceived less

severely than a disruption in deep space, where there is less capacity for supervision and damage

assessment on the part of the harmed state. A third basis for taxonomy might be the reversibility

of the effects of disruption. A comprehensive approach to this challenge is currently being

researched separately in the context of the development of the lex specialis for satellite systems

(discussed in Section 6 below).

In wartime, as we shall see below, there is even less certainty as to the parameters of permiss-

ible activity under IHL, as is evidenced by lacunae in treaty, custom and in the contemporary

writings of scholars. Legal analysis has so far occurred in a near vacuum, as state practices

regarding cases of wartime disruption of satellite communications are few and far between,

unknown to the general public, or non-controversial.48

44 Prov 15.1 was amended to read: ‘If an Administration has information of an infringement of the Constitution, theConvention, or the Radio Regulations (in particular art 45 of the Constitution and No. 15.1 of the RadioRegulations) committed by a station under its jurisdiction, the administration shall ascertain the facts and take thenecessary actions’: Provisional Final Acts, WRC-2012, February 2012. See also Document 137 of the Conference.45 See Eutelsat (n 40).46 See UNGA Res 2777(1971), UN Doc R/RES/2777 (2011), 29 November 1971.47 Convention on International Liability for Damage Caused by Space Objects, UNGA Res 2777(XXVI), UN DocA/RES/2777 (1971) (Liability Convention). Although Canada invoked the Liability Convention in its claimagainst Russia for the crash of RORSAT Cosmos 954 over its territory in 1978, the final payment of damagesdid not mention the Convention: see Michael Listner, ‘Revisiting the Liability Convention: Reflections onRORSAT, Orbital Space Debris and the Future of Space Law’, The Space Review (17 October 2011).48 One example of an international tribunal having been seized of a case with aspects relevant to satellite communi-cations will be explored in the analysis below (at Section 4.5) of the 2000 Final Report to the Prosecutor submittedto the ICTY by the Committee reviewing NATO’s bombing of the RTS broadcasting studios in Belgrade: Final


A new paradigm is needed to address the needs of the international community based on the inter-

secting normative regimes, and to accommodate the new technologies and vulnerabilities of state and

non-state actors. In the following section, the three relevant regimes that apply to hostile disruption of

satellite transmissions in time of peace will be reviewed, followed by an analysis of their importance

for developing IHL norms that will be more closely applicable to satellite transmissions.

3. THREE INTERSECTING NORMATIVE REGIMES

Satellite transmissions are subject to three separate yet intersecting normative constructs: (i) trans-

border freedom of information; (ii) ITU regulation of access to satellite infrastructures via the

electromagnetic spectrum; and (iii) space law.

3.1 FREEDOM OF TRANSBORDER INFORMATION FLOW AND ITS LIMITATIONS

Transborder freedom of information is defined and recognised as a human right in Article 19 of

the Universal Declaration of Human Rights:49

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold

opinions without interference and to seek, receive and impart information and ideas through any

media and regardless of frontiers.

Freedom of information is specifically defined as being independent of the transmitting media. The

customary law embodied in Article 19 – the article of the same number in the 1966 International

Covenant on Civil and Political Rights – and similar provisions in regional human rights treaties50

has an interesting history beginning in nineteenth century concepts of democracy and freedom of

expression.51 While acknowledging that freedom of information emerged as a legal concept on the

international level only in the second half of the twentieth century, Malanczuk notes that:52

From the very beginning, individual liberal constitutions have attached particular importance to free-

dom of opinion and expression, freedom of the press, and freedom of information of the individual

in the sense of the right to receive, impart and seek information and ideas regardless of frontiers.

Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the FederalRepublic of Yugoslavia, ICTY Doc PR/P.I.S./510-E, 13 June 2000 (Final Report – NATO Bombing Campaign).49 UNGA Res 217A(III) (1949). Art 29 potentially tempers the scope of art 19 and other rights set out in theDeclaration by prescribing ‘respect for the rights and freedoms of others’ and the requirement of ‘meeting thejust requirements of morality, public order and the general welfare’.50 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171; art 10,European Convention on Human Rights (entered into force 3 September 1953) 213 UNTS 222; art 9, AfricanCharter on Human and Peoples’ Rights (entered into force 21 October 1986) OAU Doc CAB/LEG/67/3 rev 5,21 ILM 58; art 13, American Convention on Human Rights (entered into force 18 July 1978) OAS TreatySeries No 36, 1144 UNTS 123.51 See Peter Malanczuk, ‘Information and Communication, Freedom of’, in Rudolf Bernhardt and others (eds),Encyclopedia of International Law, vol 9 (North-Holland 1986) 148.52 ibid.


The scope of freedom of information, particularly in the context of wireless transmissions, has

waxed and waned in accordance with both technological developments (from radio broadcasting

in the early twentieth century through to present satellite transmissions) and state practice. There is

still debate among scholars over whether Article 19 embodies a customary norm of international

law,53 although the question of derivation of this right from international treaty law or customary

law may, in the event, be moot, given the widespread accession of states to treaties containing an

‘Article 19’ provision and the body of domestic and international jurisprudence surrounding it.54

Following the development of widespread public radio broadcasting in the first decades of the

twentieth century, an early effort to restrict the right to exclude hostile propaganda and incitement

to war was evident in the 1936 International Convention Concerning the Use of Broadcasting in

the Cause of Peace. The Convention attempted to remedy the lack of norms regarding the pro-

paganda transmissions over public radio during the First World War.55 Throughout that War,

during the 1947 Nuremberg Trials and for the duration of the Cold War, the question whether

states may jam media broadcasts from hostile states was debated, including (in the

post-Second World War period) in the context of dozens of UN and UN specialised agency

decisions and resolutions.56 The legal debate was further carried over during the 1970s into

the realm of direct broadcast satellite transmissions, characterised by the ‘free flow versus

prior consent’ question raised at the UN,57 in the EU and the OECD, until commercial consider-

ations and digital encoding brought it to resolution.58

In this context, it is interesting to note the October 2011 anti-jamming position of the Council

of the European Union in the context of its call to Iran to end serious human rights violations.

The Council imposed an assets freeze and a visa ban on Iranians responsible for human rights

violations in that country, and called upon authorities ‘to lift restrictions on communications,

including internet censorship, and put an immediate end to jamming of satellite broadcasting’.59

Metzl evaluates the customary law regarding freedom of transborder communication in a

1997 article reviewing the legality of 1994 radio broadcasts by the Rwandan Radio Télévision

53 Malanczuk (n 51 at 168) does not agree that an international custom has been established.54 See, for instance, Autronic AG v Switzerland App No 12726/87 (ECtHR, 22 May 1990) and Khursid andOthers v Sweden App No 23883/06 (ECtHR, 16 December 2008); ‘Satellite Jamming and Freedom ofExpression’ (statement of the Article 19 organisation regarding the jamming of LuaLua TV in Bahrain, 21November 2011), http://www.article19.org/resources.php/resource/2861/en/bahrain:-article-19%E2%80%99s-submission-to-the-un-universal-periodic-review55 Signed on 23 September 1936, 186 LNTS 301.56 See John B Whitton, ‘Cold War Propaganda’ (1951) 45 American Journal of International Law 151; JamieFrederic Metzl, ‘Rwandan Genocide and the International Law of Radio Jamming’ (1997) 91 American Journalof International Law 628, 636–45; Richard A Falk, ‘On Regulating International Propaganda: A Plea forModerate Aims’ (1966) 31 Law and Contemporary Problems 622; and Deborah Housen-Couriel, ‘InternationalTelecommunications Law’ in Robbie Sabel (ed), International Law (2nd edn, Sacher Institute 2011) (in Hebrew).57 UNGA Res 37/92, Principles Governing the Use by States of Artificial Earth Satellites for International DirectTelevision Broadcasting, UNGA Doc A/37/646, 4 February 1983.58 James G Savage and Mark W Zacher, ‘Free Flow vs. Prior Consent: The Jurisdictional Battle over InternationalTelecommunications’ (1987) 42 International Journal 342. On direct broadcast satellites in general, see Bruce AHurwitz, ‘The Labyrinth of International Telecommunications Law: Direct Broadcast Satellites’ (1988) 35Netherlands International Law Review 145.59 Council of the European Union, Press Release, Luxembourg, 10 October 2011.


Libre des Mille Collines (RTLM) that incited against Tutsi, moderate Hutu and UN personnel.

These ‘hate broadcasts’ were eventually determined by the International Criminal Tribunal for

Rwanda to constitute incitement to genocide of the Tutsi, amounting to a violation of jus cogens

by the Hutu RTLM personnel.60 Metzl writes, with regard to the possibility of a customary law

justification for jamming such broadcasts:61

stripped of its Cold War overtones, the international law regarding radio jamming is not nearly as uni-

form and absolute as it may once have seemed, even if the strong presumption toward the free flow of

information and against jamming continues to fulfill a valuable international role.

Here, Metzl argues that the ‘strong presumption’ in international law supporting the international

right to communicate may have limitations in such extreme circumstances. The Rwanda broad-

casts inciting to genocide may have been jammed legitimately by other states, and Metzl posits

that there may even be a duty to jam broadcasts that violate jus cogens, or where jamming can

mitigate a humanitarian crisis. The option of jamming is also available under UN Charter Article

41, which permits the Security Council to call upon member states to interrupt ‘postal, tele-

graphic, radio and other means of communication’ as a response to a threat to peace, danger

to peace or aggression.62 Also, Article 41(2) of the ILC’s Draft Articles on Responsibility of

States for Internationally Wrongful Acts would support such a response.63

Extending the analysis above into the context of satellite transmissions, freedom of infor-

mation is established as a technology-neutral right, applicable to satellite transmissions, and sup-

porting their continuity while prohibiting their disruption by either physical or virtual means.

Whether international treaty law or customary law obtains in a particular case, there may be

specific limitations on the scope of the content protected. In particular, freedom of information

via satellite transmissions, as with other types of transborder communication, may be limited

by the international community for jus cogens considerations, such as the prevention of incite-

ment to genocide.

3.2 ITU REGULATION OF ACCESS TO COMMUNICATIONS INFRASTRUCTURES

As noted above, the ITU is the UN specialised agency charged with the global regulation of tele-

communications,64 defined broadly as ‘[a]ny transmission, emission or reception of signs, sig-

nals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other

60 ICTR, Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, AppealJudgment, ICTR-99-52-A, 28 November 2007; ICTR, Prosecutor v Ferdinand Nahimana and Others,ICTR-99-52-T, 3 December 2003.61 Metzl (n 56) 650.62 ‘The Security Council may … call upon the Members of the United Nations to apply such measures [as] com-plete or partial interruption of … postal, telegraphic, radio, and other means of communication’: art 41, UNCharter, 1 UNTS XVI, 24 October 1945.63 Report of the ILC, 63rd Session (2011) 2 Yearbook of the ILC 2, UN Doc A/66/10, para 87.64 On the history of the ITU in general, see Alfons AE Noll, ‘International Telecommunication Union’ in RudolfBernhardt and others (eds), Encyclopedia of International Law, vol 5 (North Holland 1983) 177; GA Codding,


electromagnetic systems’.65 In accordance with this broad definition, the ITU regulatory regime

applies to satellite transmissions in their entirety. Within the ITU, the Radiocommunication

Sector (RS) is responsible for the assignment of orbital slots and uplinks to and downlinks

from satellites.66

In implementing satellite registrations and regulating use, the ITU Constitution sets out sev-

eral principles that govern the global use of telecommunications infrastructures and resources,

including the spectrum and the geostationary orbit.67 The first is embodied in its Article 33,

and echoes the international freedom of information reviewed in the section above:68

Member States recognize the right of the public to correspond by means of the international service of

public correspondence. The services, the charges and the safeguards shall be the same for all users in

each category of correspondence without any priority or preference.

This prescription of non-discriminatory use of communications infrastructure among the ITU’s

193 members may be limited by the authority of states under Articles 34 and 35, which permit

states to suspend ingoing and outgoing communications with respect to their own national ter-

ritory. This authority, stemming from a state’s capacity as a sovereign to control the flow of infor-

mation domestically, does not extend beyond the state’s borders,69 and is conditional upon public

notification.70 Three additional provisions in the ITU Constitution are relevant to the ITU regime

in the context of satellite transmissions:

‘International Constraints on the Use of Telecommunications: The Role of the ITU’ in Leonard Lewin (ed),Telecommunications: An Interdisciplinary Text (Artech House 1984).65 ITU Constitution (n 35) 1012.66 See Space Plan Assignments Recorded in the Master International Frequency Register (accessed 19 November2011), https://www.itu.int/ITU-R/space/snl/listinuse/. There are 2,151 ITU listings as of 1 March 2012. The col-lective data is maintained and managed by the ITU in the Master International Frequency Register (MIFR). TheITU provides extensive information on the MIFR and the regulatory processes applicable to satellites. See Zoller(n 43); and Yvon Henri, ‘Satellite International Regulatory Framework: Added Value or Hindrance toDevelopment’, ITU-R, 3–4 February 2010. On the legal aspects of the process of MIFR registration, seeMartin A Rothblatt, ‘Satellite Communication and Spectrum Allocation’ (1982) 76 American Journal ofInternational Law 56.67 Jannat C Thompson, ‘Space for Rent: The International Telecommunications Union, Space Law and Orbit/Spectrum Leasing’ (1996–7) 62 Journal of Air Law and Commerce 279; and Susan Cahill, ‘Give Me MySpace: Implications for Permitting National Appropriation of the Geostationary Orbit’ (2000–01) 19 WisconsinInternational Law Journal 231.68 ITU Constitution (n 35) art 33.69 In fact, the opposite is the case: under art 38, states are required to ensure optimal technical conditions for unin-terrupted international telecommunications, and to refrain, in particular, from disrupting operations in other states.Furthermore, arts 44 and 45 lie at the core of the ITU normative regime, as it applies specifically to the disruptionof satellite transmissions in the civilian and dual-use sphere. The ITU Secretary-General and the Director of theRadio Relations Board have certain mediatory authorities regarding these and other normative articles, and the ITUConstitution contains arbitration provisions in art 56 of the Constitution and art 41 of the Convention (n 35)Collection of the Basic Texts of the ITU.70 They are respectively entitled ‘Stoppage of Telecommunications’ and ‘Suspension of Services’: ITUConstitution (n 35). This prerogative has rarely been exercised, but Israel did notify, for instance, the suspensionof international telephone and fax communications in the West Bank at the beginning of the first intifada, whenPalestinian operations were being run from abroad: HCJ 270/88 Law in the Service of Man v IDF Commander inJudaea and Samaria (1988) PD 42(3) 260 (Law in the Service of Man case).


• Article 44 provides that the global spectrum resource and satellite orbits are limited natural

resources that must be used ‘rationally, efficiently and economically’; and that ‘countries or

groups of countries [must] have equitable access to those orbits and frequencies’.71

• Article 45 specifically prohibits the disruption of all wireless communications,

including satellite transmissions, among member states (‘harmful interference’), as

reviewed above.

• Emergency communications are given special protection by the subsequent Article 46, and

receive ‘absolute priority’72 over other types of communication.

The partial exemption of military installations from the above normative provisions in Article 48

of the Constitution has had a complicated evolution and application, especially given the over-

whelming dual nature of contemporary satellite infrastructure.73 It will be expanded upon in

Section 4 below.

The ITU management scheme for satellites and their communications frequencies is found

in the Radio Regulations, which are binding international instruments for member states,74

and are the subject of regular revision at the biennial World Radiocommunication Conferences

(WRC). Article 5, for instance, sets out the procedure for registration of access frequencies,

and Annex 2 lists characteristics of satellite networks, earth stations and radio astronomy stations

that must be supplied by the launching state to the ITU for coordination purposes.75 The Master

International Frequency Register (MIFR) serves as the global register of frequencies and orbital

slots that have undergone full coordination procedures. Legally and administratively, the MIFR is

intended to provide international recognition for the state’s exclusive use of the pre-coordinated

frequencies, and to provide protection from harmful interference.76

In sum, the ITU regulatory regime provides a strong normative backbone for ensuring open

and uninterrupted satellite communications. The regime aims at optimal transparency for state

and non-state entities utilising all elements of the satellite infrastructure, including uplinks and

downlinks. The partial exemption in respect of military communications satellites is a challenge

to the transparency of the ITU satellite regime, somewhat mitigated by the preponderance of

dual-use satellites referred to above. These provisions of the ITU Constitution stem from a

solid and relatively longstanding customary law base that has developed over the course of

the evolution of wireless communications since their invention in the mid-nineteenth century

71 ITU Constitution (n 35).72 ‘Radio stations shall be obliged to accept, with absolute priority, distress calls and messages regardless of theirorigin, to reply in the same manner to such messages, and immediately to take such action in regard thereto as maybe required.’ (ibid).73 See William J Lynn III, ‘Defending a New Domain’ Foreign Affairs (September/October 2010).74 See ITU Constitution (n 35) art 4(3).75 Radio Regulations (n 2).76 See Rothblatt (n 66). In addition, the ITU is responsible for managing various additional aspects of the globalelectromagnetic spectrum resource, such as the equitable allocation of frequencies to developing countries andreservation of frequencies for emergency and disaster communications. See Res 5 of the Provisional FinalActs, WRC-2012 (n 44), ‘Use of Satellite Orbital Positions and Associated Frequency Spectrum to DeliverInternational Public Telecommunication Services in Developing Countries’, and Res 646 of the sameConference, ‘Public Protection and Disaster Relief’.


to the present.77 Nonetheless, the enforcement issues reviewed in Section 2.4 above pose an

ongoing challenge for this regime.

3.3 SPACE LAW

Space law has developed more recently than the two regimes reviewed above in the context of

space exploration since the end of the twentieth century.78 The leading treaty in force is the 1967

Outer Space Treaty.79 It establishes that space is free for peaceful exploitation and for use by all

states as part of the common heritage of mankind; and that it is subject to general international

law, and specifically the UN Charter.80 Claims of sovereignty may not be made in space or on

moons or planets,81 yet states retain sovereignty and control over satellites and other space objects

that they launch into space. The treaty also establishes state responsibility and international liab-

ility for any damage caused by such an object.82

Thus, states are responsible for actions by satellites launched and operated under their juris-

diction.83 Specifically, the Liability Convention, which elucidates and elaborates Article VII,

establishes absolute liability for payment of compensation ‘for damage caused by its space object

on the surface of the earth or to aircraft in flight’;84 in other areas, such as outer space itself,

77 For discussion of the customary elements of the ITU regime, see Rothblatt (n 66) and Peter Malanczuk,‘Telecommunications, International Regulation’, Encyclopaedia of Public International Law (North Holland1986) 367.78 See JP 3-14, ‘Space Operations’ (n 28) for detailed information on the US approach to the use of space.Regarding the issue of the creation of customary law in outer space given the small number of space-faringnations, see the ICJ’s ruling on the North Sea Continental Shelf on the creation of custom on the part of relevantstates, rather than a majority of states: North Sea Continental Shelf (Federal Republic of Germany v Netherlands),Judgment, 20 February 1969 [1969] ICJ Rep 3, 73–82.79 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including theMoon and Other Celestial Bodies, UNGA Res 2222(XXI), UN Doc A/RES/2222 (XXI) (1966) (Outer SpaceTreaty). As of October 2011, 100 states (including Israel) are parties, while a further 26 states have signed buthave not completed ratification.80 For review and analysis of the law of space as it relates to satellites, see Carl Christol, The Modern InternationalLaw of Outer Space (Pergamon 1982); and Nandasiri Jasentuliyana, ‘A Survey of Space Law as Developed by theUnited Nations’, in Nandasiri Jasentuliyana (ed), Perspectives on International Law (Kluwer 1995).81 ‘Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim ofsovereignty, by means of use or occupation, or by any other means’: Outer Space Treaty, ibid art II.82 Art VII is the operative provision. Art VI determines that ‘the activities of non-governmental entities in outerspace, including the Moon and other celestial bodies, shall require authorization and continued supervision bythe appropriate State Party to the Treaty’, and that parties bear international responsibility for national space activi-ties carried out by either governmental or non-governmental entities.83 This is true in principle even for ‘rogue’ satellites, such as the Galaxy 15 satellite owned by Intelsat that brokecontact with its operators on 5 April 2010 and was in danger of causing harmful interference with another satel-lite’s communication signals.84 Liability Convention (n 47). Two additional treaties address additional aspects of state responsibility regardingsatellites and their use: Convention on Registration of Objects Launched into Outer Space, UNGA Res 3235(XXIX), UN Doc A/RES/3235 (1974), 12 November 1974; and the Agreement on the Rescue of Astronauts,the Return of Astronauts and the Return of Objects Launched into Outer Space, UNGA Res 2345(XXII), UNDoc A/RES/2345 (1967), 19 December 1967.


liability needs to be established under the provisions of Articles II and IV. For the purposes of

this Convention, ‘damage’ is defined in Article 1 as follows:85

[the] 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.

In the case of damage caused by a satellite on earth, the launching state has absolute liability; for

damage caused in space, fault must be established. Despite several cases in which its provisions

appeared to have been relevant to the settlement of disputes over damage caused under one or

both heads of claim, the Liability Convention has yet to be formally applied.86

Nonetheless, future application of the Convention may raise the issue of interpretation of the

scope of Article 1. Does harmful interference with satellite transmissions caused by another satellite

(or its debris) constitute ‘damage’ under the Convention, initiating the enforcement mechanisms

within it? The required element of ‘loss or damage to property’ necessitates an understanding of trans-

missions and the data they carry as the property of a state or private entity in this context. It is argued

that the application of the Liability Convention to satellite transmissions is not unreasonable,87 given

that in other international legal contexts, such as the application of the WIPO Convention, satellite

transmissions are viewed as property and are the subject of proprietary rights thereunder.88

Whatever the scope eventually accorded toArticle 1, the present body of space law regarding liab-

ility for damages has been subject to scholarly critique for substantive lacunae, lack of clarity, and

difficulty in applying it to the increasingly acute problems caused by space debris.89 In addition,

the OECD has called for clarification of liability scenarios under the international space law regime,

given the ‘substantial potential’ of space applications to bring significant benefits to society at large, as

well as the desirability of establishing a predictable and stable environment for space activities.90

85 Liability Convention, ibid art 1. See Julián Hermida, Legal Basis for a National Space Legislation (Kluwer2004) ‘International Space Law’; and Michael Listner, ‘Revisiting the Liability Convention: Reflections onROSAT, Orbital Space Debris, and the Future of Space Law’, The Space Review (17 October 2011).86 Listner (n 47).87 See Listner, ibid, and Michael Listner, ‘Iridium 33 and Cosmos 2251, Three Years Later’, Space SafetyMagazine (10 February 2012). The author is grateful to Mr Michael Listner for an email discussion of the exten-sion of the Liability Convention to cover virtual, not only corporeal, damage. His view is that the scope of theConvention cannot be so extended.88 See WIPO Intellectual Property Handbook: Policy, Law and Use (World Intellectual Property Organization2004) Ch 7 ‘Technological and Legal Developments in Intellectual Property’, 450–53.89 See Carl Christol, Space Law: Past, Present and Future (Kluwer 1991); Arjen Vermeer, ‘The Laws of War inOuter Space: Some Legal Implications for the Jus ad Bellum and the Jus in Bello of the Militarisation andWeaponisation of Outer Space’ in Julia Boll (ed), War: Interdisciplinary Investigations (Interdisciplinary Press2007); and Listner (n 85): ‘The Liability Convention is a well-intentioned document and, along with its brethrenspace law treaties that make up the body of international space law, forms a necessary backbone for the jurispru-dence of outer space. However, it is apparent the complexities of international commerce and politics are over-whelming international space law, in particular the area of orbital space debris and specifically the LiabilityConvention. There are proposals for multilateral treaties to supplement the current body of international spacelaw and, in some cases, specifically address the issue of orbital space debris beyond the scope of the LiabilityConvention.’90 Organization for Economic Co-operation and Development, Space 2030: Tackling Society’s Challenges (OECD2005) 9–19.


Satellite conventions in force among commercial operators and satellite consortia, such as the

International Maritime Satellite Organization (IMSO) and Intelsat, provide their own compensatory

regimes when client transmissions are interrupted, distorted or otherwise damaged.91 These private

law arrangements, although beyond the scope of the present analysis, require further elucidation and

inquiry, and may hold insights for the remedy of lacunae in the public international law.92

In summary, although space and space bodies cannot be treated as the sovereign territory of

nation states, satellites remain under the sovereign control and responsibility of the launching

state or states, and general international law remains applicable in outer space. Regarding liability

for physical damage to satellites, the Outer Space Treaty and the Liability Convention establish

state liability for damage caused by satellites and their components, where ‘damage’ is broadly

construed in Article 1 of the Liability Convention. Although the Liability Convention has yet to

be applied de jure, a flexible interpretation of the term ‘property’ under the Convention may

require compensation under its provisions when satellite transmissions are harmed by other sat-

ellites or their debris.

The three legal regimes reviewed in this section inform the normative regime regarding dis-

ruption of satellite transmissions under IHL, although, as stated above, the application of the lat-

ter is at present largely theoretical. As state practice develops, the degree of implementation of

each of these regimes will be crucial to the integrity of the evolving IHL regime and its connec-

tion to the relevant public international law ad bellum.

4. DISRUPTION OF SATELLITE TRANSMISSIONS UNDER IHL

4.1 THE LEGAL AND POLICY CHALLENGES

We have briefly reviewed above the underlying principles of jus ad bellum with regard to satellite

transmissions that are likely to influence the developing body of IHL.93 Moreover, the jus in bello

will be influenced by the principle embodied in the Martens Clause contained in the Preamble to

the Hague Convention and reworded in Article 1(2) of Additional Protocol I. The clause specifies

that, in wartime, civilians and combatants remain under the protection of international law

derived from custom, from the principles of humanity and from the dictates of public con-

science.94 On this basis, we shall now review the existing IHL with regard to several aspects

of satellite and other communications, and examine some of the relevant ‘principles’ that were

analysed in Section 3 above, and their possible attenuation in time of war.

While the logical shift in applying Hague and Geneva norms that evolved in the context of

terrestrial warfare into a mixed terrestrial space setting is not a trivial one, it is at present driven

91 Convention on the International Mobile Satellite Organization, with annex (amended in April 1998 to providefor the restructuring of Inmarsat; the amendments entered into force on 31 July 2001, 31 UTS 1) and the LRITAgreement, http://www.imso.org/pdfs/lrit/MODEL%20LRIT%20SERVICES%20AGREEMENT.pdf.92 See, for instance, the UNIDROIT Draft Protocol (n 33) chap II.93 See text accompanying n 4.94 n 4.


by the practical necessities of contemporary armed conflict. In this regard, Maogoto and Freeland

write:95

Without wishing to appear melodramatic, the prospect of a celestial war can no longer be regarded as

mere fantasy. Just as States have already been undertaking what might be termed ‘passive’ military

activities in outer space since the advent of space technology, outer space is increasingly being

used as part of active engagement in the conduct of armed conflict. Not only is information gathered

from outer space – through, for example, the use of remote satellite technology and communications

satellites – used to plan military engagement on earth, space assets are now used to direct military

activity and represent an integral part of the military hardware of the major powers. It is now within

the realms of reality to imagine outer space as an emerging theatre of warfare.

In an October 2011 report that addresses the application of IHL to new forms of armed conflict,

the ICRC states its position that IHL continues to apply to ‘new technological developments’

as well:96

There can be no doubt that IHL applies to new weaponry and to the employment in warfare of new

technological developments, as recognized, inter alia, in article 36 of Additional Protocol

I. Nonetheless, applying pre-existing legal rules to a new technology raises the question of whether

the rules are sufficiently clear in light of the technology’s specific characteristics, as well as with regard

to the foreseeable humanitarian impact it may have.

The same report concludes that individual and state responsibility for conformity with IHL has

not been altered by the use of new technologies. Both physical and virtual disruption of satellite

transmissions are undoubtedly to be considered in this category.97

Specifically with regard to ASAT activities, the application of IHL to these measures on

the part of states has yet to become a concrete challenge to the international community.

De facto wars have not yet taken place in space. De jure, the international community has man-

dated by means of treaty law that outer space be utilised exclusively for peaceful uses, as

reviewed in Section 3.3 above.98 Nonetheless, Article III of the Outer Space Treaty requires

that space activities take place in conformity with international law, including the UN

Charter provisions regarding collective security and self-defence, anticipating future conflicts

that may take place either wholly or partially in outer space.

Beard also has emphasised the new challenges to IHL presented by virtual activities in cyber-

space that are an integral part of contemporary warfare, writing that ‘[v]irtual weapons systems

95 Jackson Maogoto and Steven Freeland, ‘The Final Frontier: The Laws of Armed Conflict and Space Warfare’(2007) 23 Connecticut Journal of International Law 165.96 ICRC, Report: International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 31IC/11/5.1.2, Geneva, 28 November–1 December 2011.97 ibid 39 (emphasis added). Although the ICRC report does not specifically address anti-satellite activity, it doesdiscuss computer network operations related to the use of modern weaponry.98 Notwithstanding the growing number of ASAT events. See Levi and Dekel (n 39).


are poised to transform the conditions of future battlefields for humans and change law, war and

military institutions in profound, far reaching ways’.99 These new possibilities may be unex-

pected and, in fact, may have the potential to reduce the cost of military actions in terms of

human lives. Dunlap, quoted in the Naval War College’s International Law and the Changing

Character of War, gives an illustrative example:100

[J]ust prior to the first Gulf War, the United States purchased satellite imagery of coalition forces from

multiple commercial companies, thereby denying that intelligence information to Iraq and obviating the

need for military action to keep Iraq from obtaining the imagery.

A review of three particular regimes follows, with a summary of their potential application

regarding satellite communications.

4.2 THREE ISSUES: DISTINCTION, RUSES OF WAR AND COMMUNICATION INFRASTRUCTURESUNDER OCCUPATION

The technical and substantive protections given to wireless communications and to communi-

cations installations by the ad bellum three legal regimes reviewed above are mitigated in a num-

ber of ways during wartime.

It is interesting to note at the outset the Hague rules regarding wireless telegraphy from 1923,

codified by a Commission of Jurists between 1922 and 1923.101 Wireless communications were

relatively new to warfare, although the forerunner organisations of the ITU102 had begun to regulate

both wireless and wired (that is, telephone and telegraph) communications at the turn of the century.

Article 1 of the 1923 Rules succinctly states the norm for wireless telegraphy in time of war, in a

manner that also establishes the general trend in IHL for satellite transmissions:103

In time of war, the operation of wireless stations continues to be organized, so far as possible, in a man-

ner as not to interfere with the service of other wireless stations. This rule does not apply to the wireless

stations of the enemy.

Thus, enemy wireless radio stations are specifically exempted from the requirement to avoid

harmful interference. This concept is echoed in Article 48 of the ITU Constitution, which

99 Jack M Beard, ‘Law and War in the Virtual Era’ (2009) 103 American Journal of International Law 409, 445.Beard notes the irony of technological advances in virtual weaponry and satellite surveillance technologies permit-ting a higher degree of transparency and accountability in the prosecution of modern wars (at 445).100 Raul A Pedrozo and Daria P Wollschlaeger (eds), International Law and the Changing Character of War(Naval War College 2011) vol 87, xxi (emphasis added).101 Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Commission of Juristsat The Hague, December 1922 to February 1923, Parliamentary Papers, Cmd 2201, Miscellaneous No 14 (1924)(1923 Rules).102 The International Telegraph Union and the International Radiotelegraph Conference, which merged in 1932.103 1923 Rules (n 101) (emphasis added).


provides that ‘Member States retain their entire freedom with regard to military radio installa-

tions’ even during peacetime, although they are bound to uphold, to the extent possible, pro-

visions regarding distress messages and the avoidance of harmful interference.104 Moreover, in

a 1956 list of categories of legitimate military objectives, the ICRC included ‘[t]he installations

of broadcasting and television stations; telephone and telegraph exchanges of fundamental mili-

tary importance’.105 Both physical and virtual damage to transmissions, including to terrestrial

parts of satellite networks, is at least partially permitted during war.106

The analysis herein will focus on issues relating to the disruption of satellite transmissions

during wartime and under occupation that are treated under the Hague Convention107 and

Additional Protocol I:108 the issue of distinction of combatants and targets; ruses of war and per-

fidy; and protection of communication infrastructures under the law of occupation.

4.2.1 DISTINCTION OF COMBATANTS AND TARGETS

Non-combatants merit protection under IHL in accordance with Article 48 of Additional Protocol I,

which states:109

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties

to the conflict shall at all times distinguish between the civilian population and combatants and

between civilian objects and military objectives, and accordingly shall direct their operations only

against military objectives.

Civilians who in fact take part in hostilities lose their civilian status for the time they are so

engaged, according to Article 51(3).110

In the context of wartime disruption of satellite transmissions, real difficulties of distinction of

combatants are posed. Systems operators may or may not be military personnel or located in a

military venue at the time that they program or initiate a disruption, and distinction becomes

unfeasible in circumstances in which a programmer may have acted a significant time and dis-

tance away from the actual disruptive event.111 Two examples of the difficulties in identifying

military or civilian identities of the attackers are relevant here. The first is the interference in

2007 and 2008 with two US government satellites, Landsat 7 and Terra AM, caused by computer

104 ITU Constitution (n 35) art 48.105 See Final Report – NATO Bombing Campaign (n 48) [39].106 This conclusion is also supported by the British and US manuals quoted by Justice Shamgar in the Law in theService of Man case (n 70).107 n 4.108 n 4.109 ibid art 48 (emphasis added).110 ibid art 51(3).111 Michael N Schmitt, ‘CNA and the Use of Force in International Law: Thoughts on a Normative Framework’(1999) 37 Columbia Journal of Transnational Law 885.


hackers who are suspected of having operated on behalf of the Chinese military.112 The second is

the success of a group of hackers who attacked a British Defence Ministry satellite in 1999, ‘trig-

gering a security advisory and immediate response from British intelligence and defence organ-

izations’.113 Some countries have announced public recruitment campaigns for civilians who can

be called upon to engage in hacking computer systems, including those guiding satellite systems,

in situations determined by either military or political leadership, on the presumption that civilian

computer skills are an increasingly important national strategic asset.114

The ICRC has addressed the issue of ‘direct participation’ of civilians in present military con-

flict, especially those characterised by new technologies, as referring to specific hostile acts ‘car-

ried out by individuals as part of the conduct of hostilities between parties to an armed

conflict’.115 In reviewing the ICRC’s 2009 attempt to clarify ‘direct participation’ in its contro-

versial Interpretive Guidance on the Notion of Direct Participation in Hostilities under

International Humanitarian Law,116 Garraway notes that, in several IHL contexts, the law of dis-

tinction between combatants and non-combatants is presently in flux. Particularly in the realm of

satellite system activities, which are carried out over an extended period of time throughout the

lifetime of the satellite and require expertise in managing the computerised elements of the sat-

ellite system that is not always to be found within military organisations, distinction will probably

prove to be an abiding challenge.117

Distinction of military targets is no less of a difficulty, as dual-use satellites become an

increasingly integral part of national military arsenals. The extensive utilisation by military forces

of civilian and commercial satellites, as well as dual-use communications channels, creates new

challenges in distinguishing between military and non-military targets with necessary

accuracy.118

In summary, the rules of IHL reviewed in this section have relevance to the determination of

the legality of disruption of satellite transmissions during wartime. By and large, the existing

body of the IHL rules on distinction constitutes a basis for addressing the challenges raised by

this new element of warfare, although new thinking on the utilisation of civilians to implement

disruptions and the utilisation of dual-use satellites still require important clarification.119

112 Tony Capaccio and Jeff Bliss, ‘Chinese Military Suspected in Hacker Attacks on US Satellites’, BusinessWeekly (27 October 2011). See also ‘Undercover Researchers Expose Chinese Internet Water Army’,Technology Review (22 November 2011), on hackers who are paid to initiate cyber attacks.113 ‘Hackers Reportedly Seize British Military Satellite’, The Times (28 February 1999); Kevin Coleman,‘Satellites could come under Cyber Siege’, DefenseSystems.com (22 September 2010).114 Andrew Couts, ‘US Gov’t Building Hacker Army for Cyber War’, DigitalTrends (2 August 2011); SteveElwart, ‘China’s “Cyberarmy” could Number Half Billion’, WND (1 August 2012).115 See ‘The Notion of Direct Participation in Hostilities under IHL’, in ICRC (n 15) 42.116 Charles Garraway, ‘The Changing Character of the Participants in War: Civilianization of Warfighting and theConcept of “Direct Participation in Hostilities”’ in Pedrozo and Wollschlaeger (n 100) 177.117 The problem of distinction is related to the issue of attribution in cyberspace. See nn 114 and 118.118 See Gerald Steinberg, ‘Dual-Use Aspects of Commercial High-Resolution Imaging Satellites’, MideastSecurity and Policy Studies, BESA, February 1998.119 With an important caveat regarding computer network attack, or CNA, as touched upon briefly below.


4.2.2 RUSES OF WAR AND PERFIDY

Under IHL the principle of chivalry determines that dishonourable and treacherous means of combat

are forbidden. In the interaction that takes place between belligerent forces, Article 23 of the Hague

Regulations prohibits a specific type of military communication, later defined in Article 37(1)

of Additional Protocol I, as perfidious, or the ‘false flag’ phenomenon. Article 37(1) states:120

It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of

an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the

rules of international law applicable in armed conflict, with intent to betray that confidence, shall con-

stitute perfidy.

Thus, ‘to make improper use of a flag of truce, of the national flag or of the military insignia and

uniform of the enemy, as well as the distinctive badges of the Geneva Convention’ in a way that

would cause death, injury or captivity constitutes perfidy, since such use would be liable to cause

an adversary to change his or her perception of the IHL protections given to such symbols. It would

be treacherous, and thus prohibited under IHL.121 On the other hand, ruses of war that stop short of

perfidy are permitted. Article 24 of the Hague Regulations states that ‘[r]uses of war and the employ-

ment of measures necessary for obtaining information about the enemy and the country are con-

sidered permissible’.122 This is an especially interesting determination in the context of military

satellite observation and monitoring.123 Article 37(2) of Additional Protocol I elaborates:124

Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to

induce him to act recklessly but which infringe no rule of international law applicable in armed conflict

and which are not perfidious because they do not invite the confidence of an adversary with respect to

protection under that law. The following are examples of such ruses: the use of camouflage, decoys,

mock operations and misinformation.

Disruptions to satellite transmissions between belligerents that substitute, piggyback, or morph

transmissions in order to convey false information during wartime will be considered legitimate

ruses of war if they conform to these requirements, and do not cross the line into prohibited per-

fidy by changing combatants’ perception of their own protected status. Thus, a morphed satellite

broadcast showing the enemy’s military leadership announcing a surrender of forces as immedi-

ately effective; or a military communication via satellite falsely identifying a vehicle or personnel

as protected medical units would both be perfidious. On the other hand, morphing of satellite

120 Additional Protocol I (n 4) art 37(1).121 See Ashley Roach, ‘Ruses and Perfidy: Deception During Armed Conflict’ (1991–2) 23 University of ToledoLaw Review 395.122 Hague Regulations (n 4) art 24.123 See Bhupendra Jasani and Toshibomi Sakata, Satellites for Arms Control and Crisis Monitoring (StockholmInternational Peace Research Institute 1987);124 Additional Protocol I (n 4) art 37(2).


communications, piggybacking on signals and spoofing125 that remain within the boundaries of

ruses of war – such as substitution of enemy weapons coordinates or the provision of false sat-

ellite transmissions regarding troop movements – would be legitimate ‘misinformation’ under

Article 37(2). In accordance with Article 37(1), these examples would be subject to a determi-

nation that such acts ‘improperly’ cause death, injury or captivity.

4.2.3 SPECIAL PROTECTION OF COMMUNICATIONS INFRASTRUCTURES UNDER THE LAW OF OCCUPATION

Communications infrastructures, including satellite systems, hold a particular status under the law

of occupation. In principle, when enemy territory is occupied as a result of war, the occupying

army is permitted to utilise existing resources under the laws of occupation. Specifically, Articles

53 and 54 of the Hague Regulations address the authority of the occupying army to take posses-

sion of state and private property during hostilities, provided that particular types of said property

(specifically communications and transport facilities and equipment) are restored and compen-

sation is paid when peace is made.126 This protection is given specifically to ‘[a]ll appliances,

whether on land, at sea, or in the air, adapted for the transmission of news’ and to submarine

communications cables connecting enemy territory with that of a neutral power (emphasis

added).

Updating this provision to encompass contemporary technologies, the Coalition Provisional

Authority (CPA) in Iraq issued an Order in 2003 relying on ‘the extensive specific authority

granted to the CPA under the laws and usages of war for the control of all appliances, whether

on land, at sea, or in the air, adapted for the transmission of information, whether state or pri-

vately owned’.127

Thus, communications infrastructures, along with some other specified property, are held to

have a special status requiring restitution at the conclusion of occupation.128 The original

125 The various types of interruption and distortion of wireless signals is reviewed in Richard A Poisel, ModernCommunications Jamming Principles and Techniques (Artech 2004); and Patrick D Allen, InformationOperations Planning (Artech 2007). See also JP 3-13.4, ‘Military Deception’, 13 July 2006, ‘MILDEC andElectronic Warfare’, II-4.126 Hague Regulations (n 4) art 53: ‘An army of occupation can only take possession of cash, funds, and realizablesecurities which are strictly the property of the State, depots of arms, means of transport, stores and supplies,and, generally, all movable property belonging to the State which may be used for military operations. All appli-ances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons orthings, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of munitions of war,may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peaceis made’. Art 54, ibid: ‘Submarine cables connecting an occupied territory with a neutral territory shall not beseized or destroyed except in the case of absolute necessity. They must likewise be restored and compensationfixed when peace is made.’127 Order No 14 issued by the Coalition Provisional Authority, 2003: ‘Identifying Prohibited Media Activity’, CPAOfficial Documents. Von Glahn (The Occupation of Enemy Territory (1957) 139, 215) is referenced in the Law inthe Service of Man case (n 70) as stating that ‘[t]he Occupying Power may reserve for itself the right to control,supervise and censor all communications sent through these installations [telephone and telegraph lines, cables,radio stations (and now presumably television transmitters)] regardless of whether they belong to the enemystate or are the property of private interests’.128 See discussion in Wingfield (n 13).


motivation for this protection is not transparent in the literature, but may well have reflected the

contemporary understanding that communications infrastructures were an inherent element of

state sovereignty, and, in addition, required considerable public investment in order to become

and remain operative.

State practice on this provision is similarly not transparent, although one example is the

NATO bombing of the RTS broadcast station in Belgrade in 1999, which cost the lives of

between 10 and 17 civilians.129 Although the NATO action did not take place in occupied terri-

tory but in a situation of war, the incident is illustrative of the targeting of a communications

infrastructure in wartime.

In that case, NATO officials reported to Amnesty International in press conferences in

April 1999 that the RTS facilities constituted a highly sophisticated dual-use transmission

station, which included satellite transmissions, and were being used ‘as radio relay stations

and transmitters to support the activities of the [Federal Republic of Yugoslavia (FRY)] mili-

tary and special police forces, and therefore they represent legitimate military targets’.130 The

relevance of this determination becomes clear in the context of Article 52(2) of Additional

Protocol I:

Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objec-

tives are limited to those objects which by their nature, location, purpose or use make an effective con-

tribution to military action and whose total or partial destruction, capture or neutralization, in the

circumstances ruling at the time, offers a definite military advantage.

Beyond the targeting of the military communications of the FRY, the bombing was also justified

as an anti-propaganda attack. NATO claimed that the communications system, including its sat-

ellite components, constituted an integral part of the FRY military campaign:131

[We need to] directly strike at the very central nerve system of Milosovic’s regime. [These] of course

are those assets which are used to plan and direct and to create the political environment of tolerance in

Yugoslavia in which these brutalities can not only be accepted but even condoned. … Strikes against

TV transmitters and broadcast facilities are part of our campaign to dismantle the FRY propaganda

machinery which is a vital part of President Milosevic’s control mechanism.

Significantly for the future implications of both physical and virtual disruption of satellite trans-

missions, the targeted broadcasts were reinstated by the FRY from other broadcasting stations

within hours of NATO’s strike. This ability to technically duplicate broadcast and other wireless

transmission infrastructures in a short period of time illustrates another challenge for the devel-

oping IHL in this area.

129 In the event, the ICTY Chief Prosecutor decided not to press criminal charges for the bombing. SeeProsecutor’s Report on the NATO Bombing Campaign (Press Release, The Hague, 13 June 2000), http://www.icty.org/sid/7846.130 Final Report – NATO Bombing Campaign (n 48) [73].131 ibid [74].


5. A FINAL OBSERVATION: SATELLITE TRANSMISSIONS AND COMPUTER NETWORK

OPERATIONS

As discussed briefly in Section 1 above, the hostile disruption of satellite transmissions through

harmful interference with the electromagnetic spectrum represents a type of CNO, which is a

much discussed development in the fifth domain of warfare (after land, sea, air and space).132

Since transmissions utilise the electromagnetic spectrum and computer systems for the uplink,

downlink and intra-satellite segments, an attack on the satellite earth station, the satellite itself,

and the communications links between the two, as described above, conforms fully to this defi-

nition as a particular type of CNO. Although its analysis is beyond the scope of this article, the

present efforts by the international legal system to address the issue of CNOs and to develop nor-

mative frameworks around it that conform to IHL constraints – such as the current Tallinn

Manual project under the aegis of NATO133 – will apply to satellite systems as well.134 The

special nature of the law applying to satellite transmissions, reviewed above, will determine a

lex specialis regarding hostile disruption of transmissions within the more general framework

of the eventual CNO regime that will apply in future war situations.

6. CONCLUSIONS

The implications for IHL of the relatively new phenomenon of hostile disruption to satellite trans-

missions require a fresh approach to the analysis of three intersecting normative regimes: the sub-

stantive law regarding freedom of transborder communication; ITU regulation of international

telecommunications; and space law. In the present analysis, each of these three regimes has

been shown to contribute to an overarching normative framework regarding both physical and

virtual types of disruption of satellite transmissions. To better address the growing vulnerability

of state and non-state entities to the threat of hostile transmission disruption, the convergence of

the three, around the operation of both the ground and the space segments of satellite systems,

should be applied as a lex specialis. Moreover, there is a critical need for better enforcement

132 See Michael N Schmitt, ‘Cyber Operations and the Jus in Bello: Key Issues’ in Pedrozo and Wollschlaeger(n 100) 89; and Michael N Schmitt, ‘Wired Warfare: Computer Network Attack and Jus in Bello’ (2002) 84International Review of the Red Cross 365.133 See NATO, ‘Defending the Networks’ (n 21); and Schmitt, ibid.134 The Manual on the International Law Applicable to Cyber Warfare is being prepared under NATO auspices,(the ‘Tallinn Manual’, in draft, see www.ccdcoe.org). For examples of the kinds of treaty regime that have beenproposed (and opposed), see Davis Brown, ‘A Proposal for an International Convention to Regulate the Use ofInformation Systems in Armed Conflict’ (2006) 47 Harvard International Law Journal 179; David Elliot,‘Weighing the Case for a Convention to Limit Cyberwarfare’ (Arms Control Association, November 2009)http://www.armscontrol.org/act/2009_11/Elliott; Christopher C Joyner and Catherine Lotrionte, ‘InformationWarfare as International Coercion: Elements of a Legal Framework’ (2001) 12 European Journal ofInternational Law 825; Matthew C Waxman, ‘Cyber-Attacks and the Use of Force: Back to the Future ofArticle 2(4)’ (2011) 36 Yale Journal of International Law 421; and Duncan B Hollis, ‘An E-SOS forCyberspace’ (2011) 52 Harvard International Law Journal 374.


of existing mechanisms to compensate those harmed by disruption to the full taxonomy of sat-

ellite transmissions, whether the disruption is physical or virtual.

The law applicable to disruptions under IHL will benefit by reflecting these developments

also, in order to be optimally effective on the physical and virtual modern battlefields.

Vermeer has noted that the usual course of events is for the appropriate developments in IHL

to follow occurrences, rather than to precede them. Thus,135

A law of armed conflict in space or jus in bello spatial is … unlikely to emerge in the near future; the

law of armed conflict is inherently shaped after a conflict rather than before.

Yet, given the present accelerating pace of development in satellite technology and space utilis-

ation, the time is at hand for an intergovernmental evaluation of the convergence of the three nor-

mative regimes and their enforcement. The legal elements of this lex specialis already exist at the

normative level and need only to be re-examined, refined and taken into careful consideration as

part of the broader development of the relevant IHL.

135 Vermeer (n 89).


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