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

Published online by Cambridge University Press:  30 October 2012

Deborah Housen-Couriel
Deborah Housen-Couriel*
Affiliation:
Adv, LLM, MPA, Researcher, Yuval Ne'eman Workshop for Science, Technology and Security, Tel Aviv University, dahc@tau.ac.il. 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.
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Abstract

The dramatic increase over the past decade in the quantity and sophistication of communications satellites in the earth's orbit raises new legal questions regarding the hostile disruption of satellite transmissions. As dependence on satellite communications in the military, governmental, economic and civilian spheres escalates globally, both states and non-state entities have become increasingly vulnerable to the consequences of disrupted transmissions, whether accidental or intentional. The implications of this new phenomenon for international humanitarian law (IHL) are better understood in the context of a preliminary analysis of the principles and norms underlying three regimes which now converge around satellite activities ad bellum. These are the substantive law regarding freedom of transborder communication, including relevant jus cogens prohibitions; international telecommunications regulation; and space law. The present analysis focuses 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 transmissions in peacetime, and (c) the relevance of these three regimes for the development of applicable IHL. Overall, the article addresses the legal and policy aspects of an improved international response to the growing phenomenon of transmission disruption on the part of state and non-state entities both in peacetime and during war. Greater clarity regarding the applicable legal norms will enable both state and non-state actors to utilise satellite systems with increased certainty, reliability and effectiveness.

Keywords

satelliteharmful interferenceASATLiability ConventionHague Article 53
Type
Articles
Information
Israel Law Review , Volume 45 , Issue 3 , November 2012 , pp. 431 - 458
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2012

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References

1 Definitive numbers of satellites in orbit at any given time, and their communications coordinates, are difficult to pinpoint. 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 the expected increase in satellite transponder capacity in Figures 1.5 and 1.6 in International Telecommunication Union (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 and other applications), radio and television broadcasting, military communications, guidance of GPS, Galileo and other location systems, scientific research, astronomy, environmental and meteorological monitoring, cellular telephony and internet. Military uses of satellites include command and control of weapons systems, troop communications, reconnaissance and early warning systems. For definitions of the types of satellite communications 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 forego IHL even if many aspects of their relations can be characterised as non-belligerent (see Dinstein, Yoram, War, Aggression and Self-Defense (4th edn, Cambridge University Press 2005) 18–19CrossRefGoogle Scholar. On temporal difficulties in the application of IHL, see Derek Jinks, ‘The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts’ (Harvard Program on Humanitarian Policy and Conflict Research 2003), http://www.hpcrresearch.org/sites/default/files/publications/Session3.pdf. See also Green, Leslie C, The Contemporary Law of Armed Conflict (Manchester University Press 1994)Google Scholar; Shaw, MInternational Law (6th edn, Cambridge University Press 2009)Google Scholar Chapter 21 ‘International Humanitarian Law’; International Committee of the Red Cross (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 Between Jus ad Bellum and Jus in Bello in Warfare against Non-State Actors’ (2009) 34 Yale Journal of International Law 541.

4 See Meron, Theodor, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’ (1996) 90 American Journal of International Law 238CrossRefGoogle Scholar. The Martens Clause in the Preamble to Hague Convention 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 and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461, and Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol 1)). See the discussion on the development of IHL in Rosenne, Shabtai, ‘International Humanitarian Law’, in Shabtai Rosenne, The Perplexities of Modern International Law (Nijhoff 2002) 177, 181–85Google Scholar.

5 The states presently capable of unilaterally launching satellites into orbit are (in order of their development of launching capability): USA, France, Japan, China, UK, India, Israel, Russia, Ukraine and Iran. Several private entities have also launched satellites, including SpaceEx (in 2008) and Orbital Sciences Corporation.

6 Satellites are launched into several types of earth orbit, including geostationary orbit (at 35,786 km above the earth), 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 is increasingly dealt with by global policymakers. For an example of international efforts to cope with the problems posed by space debris, see COPUOS, UN Office for Outer Space Affairs, ‘UN Space Debris Mitigation Guidelines’ (2010), http://www.iadc-online.org/References/Docu/SpacenDebrisnMitigationnGuidelines_COPUOS.pdf

8 The author is grateful to Professor Michael Rycroft of the International Space University for a discussion of the extent to which disruption of electromagnetic communications may be considered ‘physical’, or as having physical ramifications on the satellites between which they are transmitted. Electromagnetic pulse (EMP) attacks on satellites are, of course, an exception.

9 The US Department of Defense defines CNO as including attacks on civilian networks, and including computer network attacks (CNA), computer network defence (CND) and computer network exploitation (CNE). See JP 3–13, ‘Information Operations’, 13 February 2006, II-4; and JP 6-01, ‘Joint Electromagnetic Spectrum Management Operations’, 20 March 2012, I-11. See also Madelyn R Creedon, ‘Space and Cyber: Shared Challenges, 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, attribution and 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 directed energy… 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 Management Operations’ (n 9).

12 For instance, the US military doctrine on the ‘Role of Electronic Warfare in Military Operations’ does not refer to activities in outer space: JP 3-13.1, ‘Electronic Warfare’, ibid I-2.

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, National Academy of Sciences; Wingfield, Thomas C, ‘Legal Aspects of Offensive Information Operations in Space’ (1998/9) USAF Academy Journal of Legal Studies, 121Google Scholar; Bourbonniere, Michel, ‘Law of Armed Conflict (LOAC) and the Neutralisation of Satellites, or ius in Bello Satellitis’ (2004) 9 Journal of Conflict and Security Law 43CrossRefGoogle Scholar; and Kurt M Schendzielos, ‘Electronic Combat in Space: Examining the Legality of Fielding a Space-Based Disruptive Electromagnetic Jamming System’, Master's Thesis, Army Command and General Staff College, 15 June 2007. On the addition of a relevant fifth domain (cyberspace) to the traditional four domains of 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 states are currently under way in a number of states and organisations such as NATO, the European Union (EU) and the United Nations (UN).

15 IHL has been explained by the ICRC as ‘a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means 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 accompanying n 3, application of the laws of war is no longer restricted to a situation in which states have formally declared a state of war between them, but it rather ‘comprehends situations of armed conflict and military occupation in general, whether formally recognized as “war” or not’: Roberts, Adam and Guelff, Richard, Documents on the Laws of War (2nd edn, Clarendon Press 1989)Google Scholar.

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 Space Environment’ (2011) 34 The Washington Quarterly 7.

19 See presentation by Ram Levi and Tal Dekel, ‘Space Security: National Capabilities and Programs’, United Nations Institute for Disarmament Research, April 2011; and Perek, Lubos, ‘Space Debris Mitigation and Prevention: How to Build a Stronger International Regime’ (2004) 2 Astropolitics 215CrossRefGoogle Scholar.

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 the European Union, Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems [2005] OJ L69, 16 March 2005, 67; Council of the European Union, Council Directive 2008/114/EC of 8 December 2008 on the identification and designation of European critical infrastructures and the assessment of the need to improve their protection [2008] OJ L345, 23 December 2008, 75.

22 The US Department of Defense estimates that well over half of its military communications utilise commercial satellites. See Pelton, Joseph N, ‘Satellite Security and Performance in an Era of Dual Use’ (2004) 6 Space Journal (no page given)Google Scholar; 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 Petras, Christopher M, ‘The Use of Force in Response to Cyber-Attack on Commercial Space Systems’ (2002) 67 Journal of Air Law and Commerce 1213, 1214–15Google Scholar.

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-range ballistic missiles, claiming safety concerns. Accidents can also happen, as with the 2009 collision between the non-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 (20 February 2008); and Deborah Housen-Couriel, ‘Satellite Wars are Coming Next’, Jerusalem Post (14 February 2007).

28 JP 3-14, ‘Space Operations’, 6 January 2009, I-1 (emphasis added).

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 national threats in cyberspace as a whole. As will be argued below, satellite transmissions constitute a special type of cyberspace activity.

30 See art 2, principle 3 and art 4.2 of Council Conclusions on the Draft Code of Conduct for Outer Space Activities, (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 Force against Outer Space Objects’, in Security in Space: The Next Generation—Conference Report (United Nations Institute for Disarmament Research, February 2008).

32 William J Lynn, ‘A Military Strategy for the New Space Environment’ (2011) 34 The Washington Quarterly 7; Robinson, Jana, Advancing Key Foreign Policy Objectives via Space: Europe Case Study (European Space Policy Institute 2011)Google Scholar; DeBlois, Bruce M and others, ‘Space Weapons’ (2004) 29 International Security 50CrossRefGoogle Scholar; Carter, Ashton B, Seeking Stability in Space: Anti-Satellite Weapons and the Evolving Space Regime (Aspen Strategy Group 1987)Google Scholar; Ju-Qian, Li, ‘Legality, Legitimacy and the Consequences: Legal Issues of ASAT’ (2009) 3 Journal of Beijing University of Aeronautics and Astronautics 46Google Scholar.

33 See Section 3.2 below; arts S9 and S11 of the Radio Regulations (n 2); and ‘How Satellites are Brought into Service: A Brief Account of the Regulatory Steps for Satellites Using Frequency Bands Falling under the ‘Coordination Procedures’, World Radiocommunication Conference 2000, Istanbul (Turkey). See also UNIDROIT, Draft Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific 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 International Conference 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 ‘[i]nterference which endangers the functioning of a [wireless navigation service] or of other safety services or seriously degrades, obstructs or repeatedly interrupts a [wireless communications] service operating in accordance with the Radio Regulations’.

36 See, for instance, Poisel, Richard, Introduction to Communications Electronic Warfare Systems (Artech House 2002)Google Scholar; 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, ‘An Assessment 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 November 2011), 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-Based Satellite 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 the Constitution of the International Telecommunication Union, to the Convention of the International Telecommunication and to the Administrative Regulations (entered into force 1 July 1994).

43 See Julie N Zoller, ‘Satellite Regulations: Improving the International Satellite Regulatory Framework’, ITU News (2012), No.1 under ‘Harmful Interference’.

44 Prov 15.1 was amended to read: ‘If an Administration has information of an infringement of the Constitution, the Convention, or the Radio Regulations (in particular art 45 of the Constitution and No. 15.1 of the Radio Regulations) committed by a station under its jurisdiction, the administration shall ascertain the facts and take the necessary 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 Doc A/RES/2777 (1971) (Liability Convention). Although Canada invoked the Liability Convention in its claim against Russia for the crash of RORSAT Cosmos 954 over its territory in 1978, the final payment of damages did not mention the Convention: see Michael Listner, ‘Revisiting the Liability Convention: Reflections on RORSAT, 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 communications will be explored in the analysis below (at Section 4.5) of the 2000 Final Report to the Prosecutor submitted to the ICTY by the Committee reviewing NATO's bombing of the RTS broadcasting studios in Belgrade: Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic 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 the Declaration by prescribing ‘respect for the rights and freedoms of others’ and the requirement of ‘meeting the just 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, African Charter 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 Treaty Series No 36, 1144 UNTS 123.

51 See Malanczuk, Peter, ‘Information and Communication, Freedom of’, in Bernhardt, Rudolf and others (eds), Encyclopedia of International Law, vol 9 (North-Holland 1986) 148Google Scholar.

52 ibid.

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 and Others v Sweden App No 23883/06 (ECtHR, 16 December 2008); ‘Satellite Jamming and Freedom of Expression’ (statement of the Article 19 organisation regarding the jamming of LuaLua TV in Bahrain, 21 November 2011), http://www.article19.org/resources.php/resource/2861/en/bahrain:-article-19%E2%80%99s-submission-to-the-un-universal-periodic-review

55 Signed on 23 September 1936, 186 LNTS 301.

56 See Whitton, John B, ‘Cold War Propaganda’ (1951) 45 American Journal of International Law 151CrossRefGoogle Scholar; Metzl, Jamie Frederic, ‘Rwandan Genocide and the International Law of Radio Jamming’ (1997) 91 American Journal of International Law 628, 636–45CrossRefGoogle Scholar; Falk, Richard A, ‘On Regulating International Propaganda: A Plea for Moderate Aims’ (1966) 31 Law and Contemporary Problems 622CrossRefGoogle Scholar; and Housen-Couriel, Deborah, ‘International Telecommunications Law’ in Sabel, Robbie (ed), International Law (2nd edn, Sacher Institute 2011)Google Scholar (in Hebrew).

57 UNGA Res 37/92, Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, UNGA Doc A/37/646, 4 February 1983.

58 Savage, James G and Zacher, Mark W, ‘Free Flow vs. Prior Consent: The Jurisdictional Battle over International Telecommunications’ (1987) 42 International Journal 342CrossRefGoogle Scholar. On direct broadcast satellites in general, see Hurwitz, Bruce A, ‘The Labyrinth of International Telecommunications Law: Direct Broadcast Satellites’ (1988) 35 Netherlands International Law Review 145CrossRefGoogle Scholar.

59 Council of the European Union, Press Release, Luxembourg, 10 October 2011.

60 ICTR, Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Appeal Judgment, 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] complete or partial interruption of … postal, telegraphic, radio, and other means of communication’: art 41, UN Charter, 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 Noll, Alfons AE, ‘International Telecommunication Union’ in Bernhardt, Rudolf and others (eds), Encyclopedia of International Law, vol 5 (North Holland 1983) 177Google Scholar; Codding, GA, ‘International Constraints on the Use of Telecommunications: The Role of the ITU’ in Lewin, Leonard (ed), Telecommunications: An Interdisciplinary Text (Artech House 1984)Google Scholar.

65 ITU Constitution (n 35) 1012.

66 See Space Plan Assignments Recorded in the Master International Frequency Register (accessed 19 November 2011), https://www.itu.int/ITU-R/space/snl/listinuse/. There are 2,151 ITU listings as of 1 March 2012. The collective data is maintained and managed by the ITU in the Master International Frequency Register (MIFR). The ITU 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 to Development’, ITU-R, 3–4 February 2010. On the legal aspects of the process of MIFR registration, see Rothblatt, Martin A, ‘Satellite Communication and Spectrum Allocation’ (1982) 76 American Journal of International Law 56CrossRefGoogle Scholar.

67 Thompson, Jannat C, ‘Space for Rent: The International Telecommunications Union, Space Law and Orbit/Spectrum Leasing’ (1996–7) 62 Journal of Air Law and Commerce 279Google Scholar; and Cahill, Susan, ‘Give Me My Space: Implications for Permitting National Appropriation of the Geostationary Orbit’ (2000–01) 19 Wisconsin International Law Journal 231Google Scholar.

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 uninterrupted 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 disruption of satellite transmissions in the civilian and dual-use sphere. The ITU Secretary-General and the Director of the Radio Relations Board have certain mediatory authorities regarding these and other normative articles, and the ITU Constitution 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’: ITU Constitution (n 35). This prerogative has rarely been exercised, but Israel did notify, for instance, the suspension of international telephone and fax communications in the West Bank at the beginning of the first intifada, when Palestinian operations were being run from abroad: HCJ 270/88 Law in the Service of Man v IDF Commander in Judaea and Samaria (1988) PD 42(3) 260 (Law in the Service of Man case).

71 ITU Constitution (n 35).

72 ‘Radio stations shall be obliged to accept, with absolute priority, distress calls and messages regardless of their origin, to reply in the same manner to such messages, and immediately to take such action in regard thereto as may be required.’ (ibid).

73 See Lynn, William J III, ‘Defending a New Domain’ Foreign Affairs (September/October 2010)Google Scholar.

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 global electromagnetic spectrum resource, such as the equitable allocation of frequencies to developing countries and reservation of frequencies for emergency and disaster communications. See Res 5 of the Provisional Final Acts, WRC-2012 (n 44), ‘Use of Satellite Orbital Positions and Associated Frequency Spectrum to Deliver International Public Telecommunication Services in Developing Countries’, and Res 646 of the same Conference, ‘Public Protection and Disaster Relief’.

77 For discussion of the customary elements of the ITU regime, see Rothblatt (n 66) and Malanczuk, Peter, ‘Telecommunications, International Regulation’, Encyclopaedia of Public International Law (North Holland 1986) 367Google Scholar.

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-faring nations, see the ICJ's ruling on the North Sea Continental Shelf on the creation of custom on the part of relevant states, 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 the Moon and Other Celestial Bodies, UNGA Res 2222(XXI), UN Doc A/RES/2222 (XXI) (1966) (Outer Space Treaty). As of October 2011, 100 states (including Israel) are parties, while a further 26 states have signed but have not completed ratification.

80 For review and analysis of the law of space as it relates to satellites, see Christol, Carl, The Modern International Law of Outer Space (Pergamon 1982)Google Scholar; and Jasentuliyana, Nandasiri, ‘A Survey of Space Law as Developed by the United Nations’, in Jasentuliyana, Nandasiri (ed), Perspectives on International Law (Kluwer 1995)Google Scholar.

81 ‘Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, 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 outer space, including the Moon and other celestial bodies, shall require authorization and continued supervision by the appropriate State Party to the Treaty’, and that parties bear international responsibility for national space activities 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 broke contact with its operators on 5 April 2010 and was in danger of causing harmful interference with another satellite's communication signals.

84 Liability Convention (n 47). Two additional treaties address additional aspects of state responsibility regarding satellites 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), UN Doc A/RES/2345 (1967), 19 December 1967.

85 Liability Convention, ibid art 1. See Hermida, Julián, Legal Basis for a National Space Legislation (Kluwer 2004)CrossRefGoogle Scholar ‘International Space Law’; and Listner, Michael, ‘Revisiting the Liability Convention: Reflections on ROSAT, Orbital Space Debris, and the Future of Space Law’, The Space Review (17 October 2011)Google Scholar.

86 Listner (n 47).

87 See Listner, ibid, and Michael Listner, ‘Iridium 33 and Cosmos 2251, Three Years Later’, Space Safety Magazine (10 February 2012). The author is grateful to Mr Michael Listner for an email discussion of the extension of the Liability Convention to cover virtual, not only corporeal, damage. His view is that the scope of the Convention cannot be so extended.

88 See WIPO Intellectual Property Handbook: Policy, Law and Use (World Intellectual Property Organization 2004)Google Scholar Ch 7 ‘Technological and Legal Developments in Intellectual Property’, 450–53.

89 See Christol, Carl, Space Law: Past, Present and Future (Kluwer 1991)Google Scholar; Vermeer, Arjen, ‘The Laws of War in Outer Space: Some Legal Implications for the Jus ad Bellum and the Jus in Bello of the Militarisation and Weaponisation of Outer Space’ in Boll, Julia (ed), War: Interdisciplinary Investigations (Interdisciplinary Press 2007)Google Scholar; and Listner (n 85): ‘The Liability Convention is a well-intentioned document and, along with its brethren space law treaties that make up the body of international space law, forms a necessary backbone for the jurisprudence of outer space. However, it is apparent the complexities of international commerce and politics are overwhelming international space law, in particular the area of orbital space debris and specifically the Liability Convention. There are proposals for multilateral treaties to supplement the current body of international space law and, in some cases, specifically address the issue of orbital space debris beyond the scope of the Liability Convention.’

90 Organization for Economic Co-operation and Development, Space 2030: Tackling Society's Challenges (OECD 2005) 9–19.Google Scholar

91 Convention on the International Mobile Satellite Organization, with annex (amended in April 1998 to provide for the restructuring of Inmarsat; the amendments entered into force on 31 July 2001, 31 UTS 1) and the LRIT Agreement, 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.

95 Maogoto, Jackson and Freeland, Steven, ‘The Final Frontier: The Laws of Armed Conflict and Space Warfare’ (2007) 23 Connecticut Journal of International Law 165Google Scholar.

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 does discuss computer network operations related to the use of modern weaponry.

98 Notwithstanding the growing number of ASAT events. See Levi and Dekel (n 39).

99 Beard, Jack M, ‘Law and War in the Virtual Era’ (2009) 103 American Journal of International Law 409, 445Google Scholar. Beard notes the irony of technological advances in virtual weaponry and satellite surveillance technologies permitting a higher degree of transparency and accountability in the prosecution of modern wars (at 445).

100 Pedrozo, Raul A and Wollschlaeger, Daria P (eds), International Law and the Changing Character of War (Naval War College 2011) vol 87, xxi (emphasis added)Google Scholar.

101 Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare, Commission of Jurists at 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).

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 the Service of Man case (n 70).

107 n 4.

108 n 4.

109 ibid art 48 (emphasis added).

110 ibid art 51(3).

111 Schmitt, Michael N, ‘CNA and the Use of Force in International Law: Thoughts on a Normative Framework’ (1999) 37 Columbia Journal of Transnational Law 885Google Scholar.

112 Tony Capaccio and Jeff Bliss, ‘Chinese Military Suspected in Hacker Attacks on US Satellites’, Business Weekly (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); Steve Elwart, ‘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 the Concept 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’, Mideast Security and Policy Studies, BESA, February 1998.

119 With an important caveat regarding computer network attack, or CNA, as touched upon briefly below.

120 Additional Protocol I (n 4) art 37(1).

121 See Roach, Ashley, ‘Ruses and Perfidy: Deception During Armed Conflict’ (1991–2) 23 University of Toledo Law Review 395Google Scholar.

122 Hague Regulations (n 4) art 24.

123 See Jasani, Bhupendra and Sakata, Toshibomi, Satellites for Arms Control and Crisis Monitoring (Stockholm International Peace Research Institute 1987)Google Scholar;

124 Additional Protocol I (n 4) art 37(2).

125 The various types of interruption and distortion of wireless signals is reviewed in Poisel, Richard A, Modern Communications Jamming Principles and Techniques (Artech 2004)Google Scholar; and Allen, Patrick D, Information Operations Planning (Artech 2007)Google Scholar. See also JP 3-13.4, ‘Military Deception’, 13 July 2006, ‘MILDEC and Electronic Warfare’, II-4.

126 Hague Regulations (n 4) art 53: ‘An army of occupation can only take possession of cash, funds, and realizable securities 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 appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, 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 peace is made’. Art 54, ibid: ‘Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made.’

127 Order No 14 issued by the Coalition Provisional Authority, 2003: ‘Identifying Prohibited Media Activity’, CPA Official Documents. Von Glahn (The Occupation of Enemy Territory (1957)Google Scholar 139, 215) is referenced in the Law in the 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 enemy state or are the property of private interests’.

128 See discussion in Wingfield (n 13).

129 In the event, the ICTY Chief Prosecutor decided not to press criminal charges for the bombing. See Prosecutor'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].

132 See Michael N Schmitt, ‘Cyber Operations and the Jus in Bello: Key Issues’ in Pedrozo and Wollschlaeger (n 100) 89; and Schmitt, Michael N, ‘Wired Warfare: Computer Network Attack and Jus in Bello’ (2002) 84 International Review of the Red Cross 365Google Scholar.

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 been proposed (and opposed), see Brown, Davis, ‘A Proposal for an International Convention to Regulate the Use of Information Systems in Armed Conflict’ (2006) 47 Harvard International Law Journal 179Google Scholar; David Elliot, ‘Weighing the Case for a Convention to Limit Cyberwarfare’ (Arms Control Association, November 2009) http://www.armscontrol.org/act/2009_11/Elliott; Joyner, Christopher C and Lotrionte, Catherine, ‘Information Warfare as International Coercion: Elements of a Legal Framework’ (2001) 12 European Journal of International Law 825CrossRefGoogle Scholar; Waxman, Matthew C, ‘Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4)’ (2011) 36 Yale Journal of International Law 421Google Scholar; and Hollis, Duncan B, ‘An E-SOS for Cyberspace’ (2011) 52 Harvard International Law Journal 374Google Scholar.

135 Vermeer (n 89).