Let us study for this new Space Law article the need to protect satellites. Communications, localisation, observation… Nowadays, the dependence on satellite systems has increased for the realisation of some of these functions, whether they are used for civil applications, as well as in the field of defense. It is therefore essential to be able to ensure the continuity of the services provided by these satellite systems, while ensuring their proper functioning. This of course involves the ability to diagnose possible failures or malfunctions on board, and to be able to remedy them, but also to anticipate the various threats that could be the cause.
The space environment can be a primary source of threat for a satellite system, which must, among other things, cope with a radiative environment (for example with solar flares, or magnetic storms) that can lead to temporary malfunctions or damage. Similarly, the considerable increase in the orbital population (mainly operational or end-of-life satellites, and space debris) has greatly increased the risk of collisions in orbit (especially in Low Earth Orbit), and poses a new threat to satellite systems.
Finally, malicious acts such as cyber-attacks, scrambling or dazzling actions, or the destruction of satellites in orbit (ASAT firing from the ground, for example), are all intentional threats that must be taken into account in order to protect satellite systems. The multiplicity of threats makes this task of protection difficult, because the specificity of their effects implies a specificity of the means of protection to be implemented, and therefore associated costs. It is therefore important to be able to identify all of these threats, to judge their possible occurrences, to understand their potential effects, and then to develop appropriate means of protection.
The 3R concept
The 3R concept, for “Redundancy, Reactivity, and Reconfiguration”, sets the objectives in terms of capabilities to be achieved by a satellite system to best protect from potential threats, and their effects on the service to be rendered, the mission to achieve. The notion of redundancy implies that the mission, and therefore the functions to be fulfilled to achieve it, can be ensured by several elements of the satellite system, thus avoiding any critical path. The concept of reactivity implies that the satellite system is able to identify a malfunction, a threat, and react adequately with the adequate response time. Finally, the concept of reconfiguration implies that the satellite system is able to modify its configuration if necessary, so as to ensure the achievement of the mission and continuity of service.
The need to protect satellites from cyberattacks
A new report says hackers could wreak havoc by interfering with space-based communications, and navigation services. Military satellites face the threat of hackers using malicious code to jam battlefield communications, or disrupt automated missile-defense systems. Attackers can also create fake GPS signals from satellites. Known as “spoofing”, this could be used to surreptitiously redirect everything from planes to ships, and ground forces.
Security researchers have already highlighted the vulnerabilities associated with communications satellites. Hacking satellites could be a far more effective way of compromising an enemy than simply blowing them up. During the U.S.-led invasion of Iraq in 2003, just over two thirds of U.S. munitions were guided via “space-based means”, up from just a tenth during the first Gulf War in 1990. This “critical dependency on outer space” makes cyber vulnerabilities all the more concerning.
The need to protect satellites from space debris
As the number of space objects in orbit around the Earth increases, so does the chance of them colliding. The speeds at which they travel pose the threat, for each of them, of considerable dangers, if not fatal. Operational objects, manoeuvring or not, operated from the Earth, are added space debris. This diverse population of inactive objects, bringing together satellites of several tons, as well as stages of launchers or even splinters of paintings detached from them, evolves in various orbits.
The increase of this orbital population now seems almost inevitable. On the one hand, the reduction in the costs of access to space, the result of the miniaturisation of satellites, and the drop in launch costs, invites more and more actors to take part in these activities, and those activities to multiply. On the other hand, the proliferation of debris, reinforced by the increasing risk of collisions between them, considerably increases the number of obstacles in orbit.
Ensuring the viability of orbital activities therefore implies setting up a “space traffic management” regime, that is to say a set of rules for the conduct of these objects. This problem, now the subject of many works, is generally referred to by the English expression Space Traffic Management (STM). It cannot be decorrelated from space surveillance capabilities, referred to as Space Situational Awareness (SSA).
Under the lens of law, these space legal issues present a dual challenge. On the one hand, the legal regime for space activities requires the establishment of such a device for its perfect application. On the other hand, law is the appropriate instrument for the construction of these norms. Indeed, the application of certain mechanisms established by space law requires that rules relating to Space Traffic Management be defined. This is particularly the case with regard to liability.
The 1967 Outer Space Treaty and the 1972 Liability Convention cited above establish a very special regime of responsibility, unique in international law. The latter is structured around two possible situations in the event of damage caused by a space object: either the damage takes place on Earth or is caused to an aircraft in flight, or it takes place elsewhere, that is to say in outer space. In the first case, liability is flawless: that is, the mere occurrence of the damage caused by the space object is sufficient to hold the liability of its launching State or one of them in case of plurality of launching States. In the second case, liability is said to be for a fault: that is to say, it is necessary to demonstrate that the damage caused by the space object is the result of a fault. If this double regime presents no conceptual difficulty, the “fault” to which reference is made in the second case, is not defined. Therefore, it becomes difficult, if not impossible, to determine with certainty whether the responsibility of a launching State can be accepted in the event of damage that a space object would have caused to another space object.
In this respect, establishing a “Space Traffic Management” regime, widely understood as a set of rules governing the conduct of space objects, is necessary to establish the existence of a fault and with it, to engage the responsibility of a launching State for damage caused in outer space. Failure to comply with these “conduct rules” would constitute misconduct within the meaning of the 1972 Liability Convention, and would thus, make it possible to apply the planned regime strictly. Conversely, Space Traffic Management is one of the major new challenges in space law, as it is the tool by which such a regime can be established. In any case, this set of future standards, governing the conduct of space objects in orbit, will be a component of the broader set of legal and regulatory frameworks for space activities.
It is thus necessary to question the legal scheme that could be appropriate for the establishment of the STM. If examples exist, a reflection by analogy is possible on the form, but inoperative on the bottom. The physical laws peculiar to astronautics make it difficult to establish a system comparable to those put in place in other spaces. By definition, space objects placed in orbit are constantly in motion, and are constrained by their speed. A space object is not manoeuvrable with as much ease as an aircraft, or a ship, and it is thus impossible to imagine today being able to require from a space operator a similar control over its object.
Strictly speaking, concerning the need to protect satellites, the STM should thus be based on a logic different from that adopted for Air Traffic Management, with which it nevertheless shares certain problems. Among them, whether an international institution could play a role similar to that played by the International Civil Aviation Organization for flights conducted in international airspace. Indeed, outer space is not sovereign and thus, shares a status similar to the airspace overlooking the high seas. Just as air traffic and maritime traffic require common and shared rules of all, the future standards of space traffic cannot be defined as anything other than multilateral. It therefore seems that the authorities that should be privileged to lead the work related to the STM are first those that allowed to adopt the legal principles governing today’s space activities. That is what can be said concerning the need to protect satellites.