Elon Musk’s satellites buck convention

Elon Musk: CEO, tech-bro or generalissimo? The controversial tech billionaire’s interventions in the Ukraine war have ignited a raging debate over the responsibilities – and culpability – of commercial space operations in international relations.

And like the man behind the debate, the answer is … complex.

Musk was celebrated as a hero after rushing his Starlink satellite internet terminals into Ukraine shortly after Russia invaded in February 2022. But his satellites and network soon came under sustained cyber attack. Enough so that, by September of tjhat year, Musk appeared to have lost some resolve.

“There was an emergency request from government authorities to activate Starlink all the way to Sevastopol. The obvious intent being to sink most of the Russian fleet at anchor,” Musk tweeted on X on September 7 last year. “If I had agreed to their request, then SpaceX would be explicitly complicit in a major act of war and conflict escalation.”

Ukraine’s submersible drone force lost its internet connection as it approached Crimea. As a result, the attack failed, and the drones were left to wash ashore.

Ukraine was outraged. After all, it had been using Starlink to control its combat drones for months.

Mykhaylo Podolyak, an aide to Ukrainian President Volodymyr Zelenskiy, declared Musk had “allowed this [Russian] fleet to fire Kalibr missiles at Ukrainian cities. As a result, civilians, children are being killed.”

Musk told The Washington Post he felt as though he was being pulled into the start of a nuclear conflict.

The Pentagon has not commented on Musk’s judgements, and the role his private satellite network plays in what is a national security issue is now the subject of a US Senate Armed Services Committee inquiry.

And as much as Musk likes to characterise space as a lawless “Wild West” frontier, it isn’t.

The Outer Space Treaty established the principle that nation-states must authorise and supervise what their nationals do in space.

That, for example, makes Musk culpable when debris from his rockets falls on New South Wales.

But is he liable for war crimes in Ukraine? Or Russia?

Just how “national” is a multinational corporation? How “national” is a gung-ho tech bro? And does Musk’s potentially direct personal involvement in the Russian-Ukraine conflict effectively make him a military actor – and therefore a valid target?

Of CEOs and generalissimos

“Musk is not targetable. He is definitely a civilian,” says University of Adelaide space law researcher Professor Melissa de Zwart.

“The no-fun but fundamental principle is that international law applies to states. It doesn’t apply to individuals or corporations.

“He’s not a rogue actor in an international law sense. I can say that because Starlink is licenced. The US is authorising what its activities are.”

His conduct – and that of his companies – must be supervised by the US government. The rest comes down to contractual fine print.

The no-fun but fundamental principle is that international law applies to states. It doesn’t apply to individuals or corporations.

Professor Melissa de Zwart

And corporate-client-shareholder responsibilities.

De Zwart says Musk’s refusal to connect Ukrainian sea drones near Crimea was “the sort of commercial decision that anyone is entitled to make. A company can decide where it supplies its services. So that’s fine.”

Shooting for the stars

Because of its direct use by the Ukrainian military, Starlink assets are now judged to be a valid Russian target – within the conventions of war.

But how do those conventions apply to a satellite-relayed internet network?

“We know that, under the Outer Space Treaty, international law applies in space. But not how it applies in space. It’s a somewhat unresolved question,” says de Zwart.

“If I were to launch a cyber attack against a satellite constellation, is that proportional? Would that be more in keeping with international humanitarian law than if I undertook a kinetic destruction because of all the flow-on space debris effects?”

Moscow has, so far, chosen the cyberwarfare approach.

“Certainly, it seems clear that SpaceX only became aware that they were likely to be a target after they entered the fray,” de Zwart adds. “I don’t think there’s any evidence they’d really contemplated this. And it seems to be only after the fact that there was any suggestion they would restrict Starlink’s use.”

Starlink has so far largely shrugged off all cyber and jamming attacks Russia has thrown at it. “Everyone was in awe of their resilience, their rapid response to all these hacking attacks,” she adds.

But whether or not Russian-occupied Crimea should be automatically considered as part of Ukraine under a services contract will likely have to be a question for the courts – and the US Senate.

“As a lawyer, my reaction to that is, what did the contract say?” says de Zwart. “Where am I allowed to use it? And, if I’m using a system, then what does my contract tell me I am allowed to use that system for? Should it be used only for civilian communication? Many, many contracts exist where exactly that would be a limitation”.

The tech-bro trap

“Musk has made some fairly assertive comments about why he’s done things,” says de Zwart.

“So the situation for SpaceX, Starlink, and Musk is difficult.

“He was a hero when he turned it on. He was an enemy when it turned it off. He’s a hero when he turns it back on again. That’s not the way we should regulate this sort of activity.”

Ukraine’s military uses a variety of international space information service providers – including low-orbit, high-resolution cameras and radars. And the direct link between service and military also makes these assets valid targets.

As a lawyer, my reaction to that is, what did the contract say?

Melissa de Zwart

“What makes Musk such a fascinating character is how he gets enmeshed in these things through his personal involvement with X (formerly Twitter),” says de Zwart. “It’s unusual for us to be able to pin a corporate decision so directly on an individual. He’s the sort of person who tends to make his opinion known.

“If we were talking about any other commercial provider, we’d assume their decisions were made by a board of directors based on careful analysis and for the benefit of their shareholder interests. But SpaceX isn’t that sort of company.”

But neither is the space industry itself.

Dark skies

Space has only become commercialised in the past decade. At the same time, governments have found it difficult to convince taxpayers of its value.

The upshot is that space-based services are no longer the sole domain of national infrastructure and defence budgets.

SpaceX is carrying astronauts to the International Space Station because NASA cannot. It’s also launching spy satellites, as the US Air Force doesn’t have enough suitable rockets.

“A lot of ink has been spilled over whether or not there is something different about how corporations operate under space law than they do under the general principles of international law,” says de Zwart.

“But, if you are licenced by your national government, then – yeah – corporate activity looks like a national activity. I think pretty much everyone agrees that’s the principle that’s meant to apply.”

It’s the application of that principle that’s the problem governments face.

And Musk’s personality exacerbates that challenge.

“I would say Musk very clearly would not regard himself as an agent of the US government,” de Zwart says. “He’s gotten into trouble when he’s talked about a ceasefire between Kyiv and Moscow. I’m pretty sure that doesn’t fit with US foreign policy.”

So, exactly where is the dividing line between personal, corporate, military and government in space?

“We’re moving into a world now where we’re going to have to come up with answers to these questions,” says de Zwart.

Environmental and social responsibility issues are already being debated over space junk and night-sky light pollution. But how far do existing international conventions extend upward?

At the moment, that depends on the interpretations of individual nations. And Professor de Zwart says the risk is that the space industry could end up like the shipping industry – with key players shifting their head office to be registered under “flags of convenience”.

“We’d better move through this pretty quickly because we have a lot of operators going up there.”