Abstract
The emergence of private actors as principal operators of strategically significant space infrastructure represents the most structurally novel development in the history of space as a military domain — a development for which the strategic literature, the international legal framework, and the operational doctrine of the major space powers are all, to varying degrees, unprepared. This paper argues that the commercial space revolution, embodied most completely in large-scale low Earth orbit constellations of the Starlink type, private launch service providers operating at unprecedented cadence, and the proliferation of dual-use commercial satellite capabilities across all orbital regimes, has introduced into the strategic calculus of space warfare a variable that has no precedent in the earlier history of any military domain: the private actor who simultaneously functions as a commercial enterprise, a critical military infrastructure provider, a diplomatic agent, and a potential target of state military action, operating under governance frameworks designed for an era in which none of these simultaneous functions were possible for a single non-state entity. The paper examines each of the three principal manifestations of this novel variable — commercial mega-constellations, private launch providers, and dual-use satellite systems — in their strategic dimensions, and develops the legal, doctrinal, and policy implications of their integration into the space warfare environment. It concludes that the private actor problem in space warfare is not a secondary complication to be resolved by the application of existing frameworks but a primary challenge requiring original analytical and governance development, and that the failure to address it systematically will produce strategic instability, legal ambiguity, and operational risk whose consequences are already visible in the Ukrainian conflict and whose severity will increase with the further expansion of commercial space capabilities.
1. Introduction: The Unprecedented Structural Variable
Every major military domain in which states have competed has been shaped by the technologies, industries, and economic actors that created and sustained the instruments of military power within that domain. Naval warfare was shaped by the shipbuilding industries, the maritime trading companies, and the privateers who operated at the intersection of commercial and military activity. Air warfare was shaped by the aviation manufacturing industry, the commercial airlines that trained pilots and tested aircraft designs, and the civilian contractors who maintained military aircraft. Nuclear strategy was shaped by the national laboratories, the defense contractors, and the civilian scientists who developed the weapons and the delivery systems that deterred their use. In each case, the interaction between private actors and state military power was significant, but it occurred within a framework in which the state retained ultimate authority over the military application of the capabilities that private actors produced, and in which the private actors themselves were not the operators of deployed strategic military infrastructure.
The commercial space revolution of the past decade has broken this historical pattern in a manner whose full strategic implications have not yet been absorbed by any of the major institutional frameworks — military, diplomatic, legal, or commercial — that govern activity in the space domain. A private company — SpaceX — operates a satellite constellation of several thousand spacecraft that has been integrated into the military operations of a nation at war, serves as the primary communications backbone for that nation’s armed forces, has been targeted by adversary electronic and cyber warfare, has been the subject of direct diplomatic pressure from the adversary state demanding its commercial withdrawal, and has been the occasion for policy decisions by its private owner that have directly shaped the military operations of the conflict. None of the legal frameworks governing space warfare, the diplomatic protocols governing commercial entities in conflict zones, or the military doctrines governing the integration of commercial capabilities into joint operations adequately addresses this situation — because nothing in the history of warfare had prepared those frameworks for the possibility that a private actor would occupy the role that Starlink has occupied in the Ukraine conflict.
This paper develops the strategic analysis of private actors and commercial constellations as a structural variable in contemporary space warfare through three principal dimensions. Section 2 examines the strategic character of commercial mega-constellations — Starlink and its present and future counterparts — as military infrastructure, analyzing their operational integration into national defense, their vulnerability as military targets, and the governance challenges their dual military-commercial character creates. Section 3 examines private launch providers as strategic actors, analyzing their role in the launch cadence competition examined in the preceding paper and the novel strategic questions their private ownership and global operation raise. Section 4 examines the dual-use satellite problem — the proliferation of commercial satellite capabilities in imaging, signals intelligence, communications, and navigation whose military applications create targeting and legal classification challenges that existing frameworks cannot resolve. Section 5 develops the legal dimensions of the private actor problem in space warfare, examining the application of international humanitarian law to commercial space operators and the governance deficit that their integration into military operations has created. Section 6 addresses the governance responses — regulatory, contractual, normative, and legal — that the private actor problem demands. Section 7 draws conclusions about the implications of this analysis for strategy, doctrine, and the development of the international framework for space warfare.
2. Commercial Mega-Constellations as Military Infrastructure
2.1 The Starlink Phenomenon: From Commercial Service to Military Backbone
The Starlink satellite internet service, operated by SpaceX, began commercial operation in 2020 and had deployed more than 6,000 satellites in low Earth orbit by early 2024, making it by a substantial margin the largest satellite constellation in history and the dominant operator in the LEO commercial communications market (SpaceX, 2023). The system was designed and marketed as a commercial broadband internet service — a means of delivering high-speed internet access to underserved rural and maritime users through a dense LEO constellation that provides low-latency, high-throughput connectivity across most of the Earth’s surface. Its integration into military operations was not the primary design objective of the Starlink system, and the legal and policy framework governing its military use was not established in advance of its deployment.
The Ukraine conflict, beginning with the Russian invasion of February 2022, transformed the strategic understanding of what a commercial LEO communications constellation represents in a military context. Within days of the invasion — and specifically in response to the Viasat KA-SAT cyber attack that disabled significant Ukrainian communications capacity at the conflict’s opening — SpaceX deployed Starlink terminals to Ukraine, providing the Ukrainian military and government with a resilient, distributed communications network that proved substantially more difficult to disrupt than the satellite and terrestrial communications infrastructure that Russian electronic warfare and cyber operations targeted in the opening phase of the campaign (Roper, 2022). Ukrainian military units used Starlink terminals for tactical communications, artillery targeting coordination, drone operations, command and control connectivity, and intelligence sharing throughout the conflict, integrating a commercial internet service into military operations at every level from strategic to tactical in ways that no acquisition program or doctrinal development process had planned or anticipated.
The military value of Starlink in the Ukraine conflict derived from exactly those characteristics that define the strategic value of commercial mega-constellations generally: the scale of the constellation, which made comprehensive jamming or physical attack effectively impossible; the geographic distribution of terminals, which made network disruption a systemic challenge rather than a targeted attack problem; the rapid pace of software updates from the ground that allowed SpaceX engineers to respond to Russian jamming and spoofing attempts within hours rather than the months that traditional military satellite system modifications required; and the commercial cost structure of the terminals and service, which made deployment at the scale required for tactical military use financially feasible in ways that dedicated military satellite communications could not have matched (Watling & Reynolds, 2022).
The strategic implications of this operational experience extend well beyond the specific circumstances of the Ukraine conflict. They demonstrate that a commercial satellite constellation operated by a private company can, under the conditions of modern warfare, provide military communications infrastructure whose operational significance rivals or exceeds that of dedicated military satellite systems costing orders of magnitude more to develop and deploy. They demonstrate that the integration of commercial satellite infrastructure into military operations can occur rapidly, without formal acquisition processes, in response to the operational requirements of an active conflict rather than the peacetime planning processes that normally govern capability development. And they demonstrate that the private operator of a commercial constellation — a company, its executives, and ultimately its principal owner — can exercise decisions that directly shape military operations through the terms and conditions of commercial service rather than through any authority delegated by a state military command structure.
2.2 The Decision Authority Problem: Private Actors and Military Operations
The most strategically novel aspect of the Starlink role in Ukraine was not the military utility of the commercial constellation — which was remarkable but could have been anticipated — but the repeated public demonstration that decisions about the terms and conditions of Starlink service were made by SpaceX’s leadership, and ultimately by its principal owner, Elon Musk, in ways that directly shaped military operations without those decisions being subject to the authority or oversight of any state military command or government regulatory body.
In September 2022, it was reported that SpaceX had declined a Ukrainian request to enable Starlink service over Crimea for a naval drone attack on the Russian Black Sea Fleet — a decision that, if accurately reported, constituted a private company’s decision to limit the scope of military operations by a sovereign state at war (Isaacson, 2023). In October 2022, SpaceX imposed geographic and functional limitations on Starlink service in Ukraine — limiting its use for drone operations and restricting service in contested areas — before partially reversing those limitations following diplomatic engagement by the United States government. These decisions — made by a private company in response to its own assessments of legal risk, reputational considerations, and the owner’s personal views about conflict escalation — affected the military operations of a sovereign state in ways that no existing legal or governance framework had anticipated or provided for.
The decision authority problem created by the Starlink experience is not merely a diplomatic or legal inconvenience; it represents a fundamental structural challenge to the concept of national command authority over military operations that is foundational to both military doctrine and international humanitarian law. If a private company operating critical military infrastructure can unilaterally impose limitations on the military use of that infrastructure based on its own commercial, legal, or personal judgments — and if those limitations have direct operational consequences for military forces engaged in active combat — then the concept of national command authority has been substantially hollowed out for the domain in which that infrastructure operates, regardless of the legal formalities that nominally preserve state authority (Schmitt, 2023).
The governance implications of this structural challenge are severe and have not yet been addressed in any comprehensive way by the states whose military operations depend on commercial satellite infrastructure. The contractual frameworks through which governments procure commercial satellite services were not designed to address the full spectrum of military operational requirements and limitations that wartime use creates. The regulatory frameworks that govern the operation of commercial satellites — the FCC licensing framework in the United States, equivalent frameworks in other jurisdictions — were designed for commercial operations in peacetime and do not address the military use of licensed commercial satellite services. And the international legal frameworks that govern the conduct of armed conflict were developed without any expectation that the critical communications infrastructure of a belligerent would be owned and operated by a private non-state actor based in a third country.
2.3 OneWeb, Amazon Kuiper, and the Broadening Constellation Landscape
Starlink is the most operationally mature and militarily significant commercial mega-constellation, but it is not the only one, and the strategic landscape of commercial LEO constellations is expanding in ways that will multiply the private actor problem rather than simplify it. OneWeb — a British commercial satellite internet company that emerged from bankruptcy in 2020 with backing from the British government and the Indian conglomerate Bharti Enterprises — operates a constellation of approximately 634 satellites in LEO and has been integrated into military communications assessments by the United Kingdom and other NATO allies as a potential supplementary communications capacity (United Kingdom Ministry of Defence, 2022). Amazon’s Project Kuiper — authorized for a constellation of 3,236 satellites and backed by the full resources of the world’s second-largest company by market capitalization — represents a potential future commercial LEO constellation of strategic significance comparable to or exceeding Starlink, though it had not reached significant operational deployment as of this writing (Amazon, 2023).
The proliferation of commercial mega-constellations operated by multiple private entities, headquartered in multiple countries, subject to multiple regulatory jurisdictions, and financed by investors from multiple national backgrounds creates a strategic landscape of extraordinary complexity that far exceeds the bilateral private actor problem illustrated by the Starlink-Ukraine experience. A future conflict in which multiple commercial mega-constellations from different national origins are simultaneously implicated — as communications infrastructure for belligerents, as potential targets for adversary counterspace operations, and as diplomatic levers subject to pressure from multiple state actors — will present governance challenges of a character and complexity for which no current framework is even conceptually adequate.
The multiplicity of constellation operators also creates competitive and strategic dynamics within the commercial constellation space that have military implications. SpaceX’s dominant position in the current LEO communications market gives it leverage over the terms of military use that no government customer can easily override — because there is currently no commercially equivalent substitute. The development of competing constellations by OneWeb, Amazon, and potentially others — reducing SpaceX’s market dominance — would give government customers more leverage in negotiating the terms of military use but would simultaneously multiply the number of private decision authorities whose decisions could affect military operations. Neither outcome is straightforwardly better from a military strategic perspective, and the governance frameworks appropriate to each differ in ways that planning must anticipate rather than discover.
2.4 Vulnerability of Commercial Constellations as Military Infrastructure
The integration of commercial mega-constellations into military operations creates a targeting problem for adversary military planners that has no historical precedent in its specific character. When a commercial satellite constellation is functioning as critical military communications infrastructure, it constitutes a military objective under international humanitarian law — a legitimate target for military attack if its neutralization offers a definite military advantage. But a constellation whose satellites simultaneously serve military communications users and civilian internet users — households, businesses, schools, emergency services — across multiple countries including neutral ones cannot be neutralized through physical attack without causing civilian harm that may be disproportionate to the military advantage gained (Schmitt, 2023).
The adversary planning a counterspace campaign against a commercial constellation being used for military purposes therefore faces a targeting dilemma with no clean legal or operational resolution. Full constellation attack — destroying or disabling enough satellites to neutralize the military communications function — would also deny internet service to civilian users across a wide geographic area, potentially including neutral countries, and would generate orbital debris affecting all LEO users for decades. Selective attack — targeting only the subset of satellites serving military users in the conflict zone — is technically impractical given the dynamic allocation of satellite capacity in a LEO constellation, where any individual satellite may serve both military and civilian users across its coverage area on a traffic-by-traffic basis without any externally observable distinction.
The practical resolution of this targeting dilemma that an adversary is most likely to adopt is an electronic and cyber attack strategy directed at the terminals and ground infrastructure rather than at the constellation itself — jamming the downlinks serving military users in the theater of operations, attempting to disrupt the ground network management systems that route traffic to military terminals, or conducting cyber attacks on the terminal firmware as Russia did with the Viasat KA-SAT system. This resolution limits the physical damage to the constellation and reduces the legal exposure of the attacker for attacks on civilian infrastructure, while achieving operationally meaningful disruption of military communications at the tactical level. The Starlink system’s demonstrated resilience against exactly this attack strategy — through frequency agility, beam steering capability, and rapid software response to jamming attempts — suggests that the electronic warfare solution to the commercial constellation targeting problem is itself less effective than traditional electronic warfare against dedicated military communications satellites, further complicating the adversary’s operational calculus (Watling & Reynolds, 2022).
3. Private Launch Providers as Strategic Actors
3.1 The Commercial Launch Revolution and Its Strategic Character
The transformation of space launch from an exclusively state activity to a commercially dominated market, achieved over approximately fifteen years from the mid-2000s through the early 2020s, has been analyzed in the preceding paper on space logistics primarily as a supply-side phenomenon — a development that expanded global launch capacity and reduced the cost of orbit access in ways that altered the strategic logistics of space power. This section examines the commercial launch revolution from a different angle: as a structural change in the identity of the actors who control access to orbit, with strategic implications that extend beyond logistics into the domains of deterrence, arms control, and the governance of escalation in space conflict.
The concentration of American high-cadence launch capacity in a single private company — SpaceX, which by 2023 accounted for approximately two-thirds of all orbital launches globally and an even higher fraction of total payload mass delivered to orbit — represents a structural situation without historical parallel in any previous military domain (SpaceX, 2023). No previous era of military competition has featured a situation in which a single private company, not subject to the command authority of any military organization, controlled the majority of a major power’s access to a strategically critical domain. The East India Companies of the seventeenth and eighteenth centuries controlled significant naval and military power in their operating areas, but they operated under charters that gave the sovereign substantial authority over their military activities and that were revocable at the crown’s discretion. SpaceX operates under commercial launch licenses granted by the Federal Aviation Administration and under contracts with the United States government for specific launch services, but neither the licensing framework nor the contractual relationship gives the government the authority to direct SpaceX’s launch operations for military purposes beyond the specific launches for which contracts exist.
The strategic implications of this private-actor launch dominance operate on several levels simultaneously. At the operational level, the military’s dependence on SpaceX for satellite launch — both for the ongoing deployment of new military satellites and for the wartime reconstitution missions that responsive launch capacity enables — creates a dependency relationship that constrains military operational planning in ways that dependence on a government-owned launch capacity would not. A decision by SpaceX’s leadership to decline a government launch contract — whether for commercial, legal, reputational, or personal reasons — would impose constraints on military satellite deployment that no government directive could immediately override, since no alternative provider currently offers comparable capacity at comparable cost and cadence. The leverage that this dependency creates is not currently being exercised adversarially, but it is a structural feature of the relationship whose future exercise cannot be precluded by any existing legal or contractual mechanism.
3.2 Launch Capability as National Strategic Asset: Governance of Private Providers
The recognition that commercial launch capability constitutes a national strategic asset — one whose availability, reliability, and security are matters of national security interest rather than purely commercial concern — has lagged behind the commercial development of that capability in the policy frameworks of the United States and other spacefaring nations. The Federal Aviation Administration, which licenses commercial space launches in the United States, was established and operates under a regulatory framework whose primary mandate is public safety rather than national security — ensuring that rockets do not crash on populated areas or create unacceptable collision risks in orbit, rather than ensuring that the national launch capacity is adequate for wartime military requirements or that commercial launch providers maintain the security standards appropriate for critical national security infrastructure.
The gap between the public safety mandate of the existing regulatory framework and the national security requirements of strategic launch capacity governance has been partially addressed through separate contractual mechanisms — the National Security Space Launch (NSSL) program, through which the United States Space Force procures launch services for national security satellites from certified commercial providers — and through export control regulations that restrict the transfer of launch technology to potential adversaries (United States Space Force, 2020). But these mechanisms address the procurement and technology security dimensions of the private launch provider problem without addressing its strategic governance dimensions: the questions of what obligations a private launch provider owes to the national security in circumstances not covered by existing contracts, what authority the government has to direct private launch operations in a national security emergency, and what limits, if any, apply to a private launch provider’s freedom to accept commercial launch contracts from foreign customers whose orbital capabilities may be militarily relevant.
The foreign customer dimension of private launch provider governance is particularly complex. SpaceX, United Launch Alliance, Rocket Lab, and other American commercial launch providers are subject to State Department export licensing requirements for launches of foreign government satellites, but the commercial satellite industry serves a global customer base that includes many nations with significant military space programs — not only close allies but states whose military relationship with the United States is more ambiguous. The launch by a commercial American provider of a satellite for a customer whose orbital capabilities will complicate American military space operations represents a tension between commercial freedom and national security that existing export control frameworks address imperfectly and that the expansion of commercial launch capacity makes increasingly consequential.
3.3 International Commercial Launch Providers and Strategic Competition
The commercial launch provider landscape is not exclusively American, and the strategic implications of commercial launch capacity extend to the international dimension of the launch market in ways that create both opportunities and risks for Western space strategy. The emergence of commercial launch providers in Europe — ArianeGroup’s Ariane 6, the RocketFactory Augsburg, HyImpulse, and others — Japan (iQPS, Interstellar Technologies), Australia (Gilmour Space Technologies), and New Zealand (Rocket Lab, which is American-owned but launches from New Zealand) creates a diversified Western commercial launch ecosystem that partially addresses the concentration risk represented by SpaceX’s dominance.
Chinese commercial launch providers — LandSpace, CAS Space, Galactic Energy, iSpace, and others — represent a more strategically complex dimension of the international commercial launch landscape. These companies operate in a legal and regulatory environment in which the distinction between commercial and state activities is less clearly maintained than in Western jurisdictions, and in which the Chinese government exercises more direct authority over commercial space companies than Western governments exercise over their private counterparts (Jones, 2021). The commercial character of Chinese launch providers does not, therefore, provide the same degree of independence from state strategic direction that distinguishes Western commercial launch providers — a distinction that has significant implications for how their launch capacity is assessed in competitive strategic analysis.
The emergence of commercial launch providers willing to serve customers globally — including customers whose interests are adverse to those of the provider’s home nation — creates the possibility of private launch arbitrage: the procurement of launch services from commercial providers in neutral or adversary-adjacent countries as a means of accessing orbit for capabilities that might not be directly supplied by the adversary’s state launch programs. This launch arbitrage scenario — which has no direct historical parallel in military logistics — represents a potential circumvention of launch dominance strategies that assume state control over access to the launch market, and its governance implications require explicit attention in both arms control negotiation and export control policy.
3.4 The Liability and Accountability of Private Launch Providers in Conflict
The participation of private launch providers in the launch of military satellites — or in the launch of commercial satellites subsequently integrated into military operations — creates liability and accountability questions that existing legal frameworks do not resolve. The Liability Convention of 1972 establishes state liability for damage caused by objects launched from that state’s territory, regardless of whether the launch was conducted by a state or private entity — imposing on the launching state the obligation to compensate for damage caused by its registered space objects. This state liability framework does not address the internal question of whether the state can then seek contribution or indemnification from the private launch provider whose actions gave rise to the state’s liability — a question of domestic law rather than international space law (Jakhu & Pelton, 2017).
In the context of space warfare, the liability question becomes more acute when a commercial launch provider has launched a satellite that is subsequently used as a military asset and then targeted by an adversary. If a privately launched commercial satellite is attacked and destroyed by an adversary counterspace operation because it is functioning as military communications infrastructure, the legal questions of who bears the loss — the satellite operator, the government that integrated it into military operations, or the launch provider whose launch made the military integration possible — are not resolved by any existing legal framework. The development of a legal framework addressing the allocation of liability for wartime losses among commercial space actors, state military users, and private launch providers represents an important but thus far unaddressed gap in the legal architecture of military space operations.
4. Dual-Use Satellites: The Classification Problem in Space Warfare
4.1 The Nature and Scope of the Dual-Use Problem
Dual-use technology — technology that has both civilian and military applications and that cannot be readily designed for only one of those applications — is a pervasive feature of modern technological competition, addressed in export control regimes, arms control verification frameworks, and military doctrine across many domains. In the space domain, the dual-use problem takes a particularly acute form because the fundamental characteristics that make a satellite commercially valuable — its orbital position, its sensor capability, its communications throughput, its navigational accuracy — are precisely the characteristics that make it militarily valuable. A commercial Earth observation satellite capable of imaging in high resolution for agricultural monitoring, disaster response, and urban planning applications is also capable of providing the imagery intelligence that informs military targeting decisions. A commercial communications satellite providing high-throughput internet service to maritime and aviation users is also capable of providing the communications backbone for military command and control. A commercial navigation satellite providing timing and positioning services to civilian users is also providing the precise navigation that enables precision-guided weapons.
The dual-use character of commercial satellites is not a marginal or incidental feature of the commercial space industry; it is inherent in the physics and economics of satellite systems, which do not permit the separation of military from civilian functionality in any technically meaningful way. A satellite imaging sensor that achieves commercially useful resolution cannot be made militarily less useful without degrading it below commercial value. A satellite communications transponder capable of supporting military data requirements is identical to one capable of supporting commercial data requirements. The technical indivisibility of military and civilian satellite capability is a fundamental characteristic of the space domain that any legal or strategic framework for commercial satellite governance must acknowledge rather than attempt to design around.
4.2 Commercial Imagery: The Democratization of Strategic Intelligence
The commercial satellite imagery revolution — the availability of high-resolution satellite imagery from commercial operators at resolutions and revisit rates previously available only to the intelligence agencies of major powers — represents one of the most strategically significant developments in the dual-use satellite landscape and one whose military implications have been most extensively realized in operational contexts. The provision of commercial satellite imagery to Ukraine by Maxar Technologies and Planet Labs — providing Ukrainian military planners with near-real-time imagery of Russian force dispositions, logistics activities, and infrastructure targets — has demonstrated the operational significance of commercial imagery as a military intelligence resource in ways that previous conflicts had only partially illustrated (Moltz, 2019).
The strategic implications of commercially accessible high-resolution satellite imagery extend across multiple dimensions. For the state receiving commercial imagery support, it provides an ISR capability whose acquisition cost is a fraction of a dedicated military imagery satellite program and whose political implications are substantially different — a commercial purchase rather than a military intelligence operation, with different legal status and different diplomatic sensitivities. For the adversary whose forces and activities are being observed, commercial imagery represents a surveillance capability that cannot be neutralized through the same counterspace operations that would disable a military reconnaissance satellite, because the commercial imagery operator has civilian users and neutral-country operations that make physical attack disproportionate and potentially internationally unlawful. And for third parties — journalists, international organizations, academic researchers, allied intelligence services — commercial imagery provides access to strategic intelligence about the conflict that changes the information environment in ways that constrain the freedom of action of all belligerents, since activities that would previously have been conducted in the intelligence darkness of denied areas are now observable by anyone with a commercial imagery subscription (Moltz, 2019).
The dual-use character of commercial imagery creates targeting dilemmas analogous to those created by commercial communications constellations, but with an important difference: commercial imagery satellites are geographically fixed in their satellite positions and are continuously imaging fixed portions of the Earth’s surface in a pattern that is predictable from their published orbital parameters. This predictability means that an adversary aware of a specific commercial imagery satellite’s ground track can plan sensitive military activities to occur during the satellite’s orbital windows, or — more aggressively — can interfere with the satellite’s operations during passes over the conflict zone through electronic means, dazzling its sensors with ground-based lasers or jamming its downlinks, without physically attacking the satellite. Russia has reportedly conducted laser dazzling operations against commercial imagery satellites conducting passes over Russian military activities in Ukraine, reflecting precisely the targeting logic of below-threshold denial against commercially operated dual-use space systems (Harrison et al., 2022).
4.3 Commercial Signals Intelligence and Pattern-of-Life Analysis
Beyond imaging satellites, a growing category of commercial dual-use capability involves the collection of signals intelligence from orbit — the detection, geolocation, and analysis of radio frequency emissions from ships, aircraft, vehicles, and fixed installations on Earth’s surface and from other satellites in orbit. Commercial companies including HawkEye 360, Spire Global, and Kleos Space operate constellations of small satellites that detect and geolocate radio frequency emissions across a range of frequency bands, providing commercial services that include maritime domain awareness, spectrum monitoring, and pattern-of-life analysis of emitters of interest.
The military applications of commercially acquired signals intelligence are direct and operationally significant. The geolocation of ship and aircraft radio frequency emissions enables tracking of military vessels and aircraft that may not be broadcasting AIS or ADS-B identification signals. The detection of radar emissions from air defense systems enables mapping of adversary air defense networks. The monitoring of communication emission patterns enables identification of command nodes and analysis of organizational structure from the electromagnetic signatures of military communications activity. These are functions previously performed exclusively by dedicated national intelligence satellite programs at costs and with classification levels that restricted their use to the highest levels of the intelligence community; their availability as commercial services substantially democratizes access to strategic intelligence in ways that alter the information environment of both peacetime competition and armed conflict.
The dual-use character of commercial signals intelligence satellites creates classification challenges under international humanitarian law that are more acute than those created by imagery satellites. An imagery satellite’s military utility is evident from its spatial resolution and its orbital coverage of militarily relevant areas; a signals intelligence satellite’s military utility depends on the specific signals it is collecting, which are not externally observable and which change continuously as the satellite passes over different areas and collects different emissions. The same satellite that is collecting commercially licensed maritime domain awareness data over the Pacific Ocean is, during different orbital passes, potentially collecting militarily significant signals intelligence data over conflict zones — a dual-use simultaneity that makes the satellite difficult to classify as either a civilian or a military object under international humanitarian law’s distinction principle (Schmitt, 2023).
4.4 Commercial Navigation: The GPS Ecosystem and Its Vulnerabilities
The navigation satellite domain presents a distinctive form of the dual-use problem: the navigation infrastructure that underlies precision military operations — the GPS constellation, the GLONASS constellation, and their commercial equivalents — is owned and operated by states rather than private companies, but the commercial ecosystem of receivers, augmentation services, and derived applications that translates satellite signals into operationally useful navigation capability is overwhelmingly commercial and private in its character. The vulnerability of military operations to GPS signal disruption, analyzed in the preceding paper on space warfare as infrastructure warfare, is inseparable from the commercial character of the GPS receiver and augmentation ecosystem through which military forces access that navigation capability.
The commercial GPS augmentation industry — including the satellite-based augmentation systems (SBAS) that improve GPS accuracy for aviation navigation, the precise point positioning services that provide centimeter-level accuracy for survey and construction applications, and the GPS receiver chipsets that are manufactured by commercial semiconductor companies for billions of consumer devices — represents a dual-use ecosystem of enormous economic scale and strategic significance. Military GPS receivers and military-specific augmentation services have greater jam resistance and authentication capability than their commercial counterparts, but the military GPS ecosystem is built on the same fundamental satellite signals and is supported by commercial supply chains whose security is significantly less rigorously maintained than dedicated military systems. Disruption of the commercial GPS ecosystem — through jamming, spoofing, or cyber attack on augmentation service providers — would impose military effects through civilian infrastructure in a manner that illustrates the fundamental inseparability of commercial and military capability in the navigation domain (Humphreys, 2017).
4.5 The Targeting Classification Challenge: Civilian or Military Object?
The dual-use character of commercial satellites creates a targeting classification challenge under international humanitarian law — specifically under the distinction principle, which requires parties to an armed conflict to distinguish between military objectives and civilian objects and to direct attacks only against military objectives — that the existing body of space law and the law of armed conflict has not resolved. A satellite that is simultaneously providing military communications to armed forces and civilian internet service to households is not cleanly classifiable as either a military objective or a civilian object under the existing legal framework, and the legal consequences of its classification differ fundamentally in the obligations they impose on an attacking party.
If a commercial satellite providing military communications is classified as a military objective, it can be attacked without the proportionality assessment that attacks on civilian objects require — though the incidental harm to civilian users of the satellite’s non-military services must still be assessed as collateral damage subject to the proportionality principle. If it is classified as a civilian object, it cannot be directly attacked, though it might be subject to electronic interference directed at its military function if such interference is technically feasible without affecting its civilian function. And if it is classified as an object of mixed military and civilian function — which most accurately describes the factual situation — the legal framework requires a case-by-case proportionality assessment that applies the anticipated civilian harm of the attack against the anticipated military advantage, a calculation whose inputs are highly uncertain and whose outputs are highly context-dependent (Stephens & Steer, 2021).
The Woomera Manual on the International Law of Military Space Operations addresses the classification of dual-use satellites as a primary legal challenge, concluding that commercial satellites providing effective contributions to military action may qualify as military objectives under the laws of armed conflict, but that the determination must be made on a case-by-case basis accounting for the specific military contribution and the proportionality of civilian harm (Stephens & Steer, 2021). This case-by-case framework, while legally coherent, provides limited operational guidance for military planners who must make targeting decisions in real time and for commercial satellite operators who must assess their own legal exposure as potential military targets.
5. Legal Dimensions of the Private Actor Problem
5.1 The Law of Armed Conflict and Private Space Actors
The law of armed conflict — the body of international humanitarian law governing the conduct of hostilities — was developed primarily in the context of conflicts between states, with legal personality attributed to state armed forces, state-operated military infrastructure, and the civilian populations and civilian objects over which states exercise authority. The extension of that framework to the space domain, already complex because of the technical characteristics of space warfare, becomes acutely more complex when the military infrastructure being attacked, protected, or operated is owned and operated by private non-state actors. The law of armed conflict’s treatment of private actors — through the concept of direct participation in hostilities, the distinction between combatants and civilians, and the status of civilian contractors and private military companies — provides an imperfect but relevant starting framework for analyzing the legal status of commercial space operators in armed conflict.
The concept of direct participation in hostilities — which determines whether a civilian has temporarily lost their protection from attack by actively participating in military operations — is the most immediately relevant legal concept for analyzing the status of commercial satellite operators whose services are being used for military purposes. A satellite operator who is providing communications services used for military command and control, or providing imagery intelligence used for military targeting, is making a contribution to military operations that qualitatively resembles direct participation in hostilities — though the legal framework developed for direct participation was designed for individual human actors rather than corporate entities, and its application to corporate satellite operators raises definitional challenges that legal scholarship is only beginning to address (Schmitt, 2017).
The specific question of whether Starlink’s provision of communications services to Ukrainian armed forces constituted direct participation in hostilities — and whether that characterization would make SpaceX a legitimate target of Russian military attack — was raised explicitly by Russian government statements during the Ukraine conflict, with Russian officials asserting that SpaceX and its facilities had become legitimate military targets through the military use of Starlink. The legal validity of this assertion — and the strategic and policy implications of either accepting or rejecting it — has not been authoritatively resolved and represents one of the most consequential unresolved legal questions in contemporary space security (Schmitt, 2023).
5.2 Neutrality Law and Commercial Space Services
The law of neutrality — the body of international law governing the rights and obligations of states that are not party to an armed conflict, and the belligerent states’ rights with respect to neutral territory and neutral shipping — provides a second relevant framework for analyzing the legal status of commercial space services provided by companies based in states not party to a conflict. Traditional neutrality law prohibits neutral states from providing military assistance to belligerents — supplying weapons, troops, or material support that advantages one party over another in an armed conflict — while permitting neutral trade in non-contraband goods and services.
The application of neutrality law to commercial satellite services provided to belligerents raises questions that the traditional framework was not designed to address. Is a commercial satellite communications service provided by an American company to Ukrainian armed forces a form of neutral commercial trade — the sale of a service that any customer could purchase — or a form of prohibited assistance to a belligerent that violates American neutrality with respect to the Russia-Ukraine conflict? The United States was not neutral with respect to that conflict, having provided extensive direct military assistance to Ukraine, but the neutrality law question becomes more complex when applied to commercial satellite operators based in genuinely neutral states — a Swiss commercial imagery company providing satellite imagery to Ukrainian military planners, or a Japanese commercial launch company launching satellites for a belligerent state — where the traditional neutrality obligations of the home state apply and where the commercial activities of the private operator may have legal consequences under those obligations (Jakhu & Pelton, 2017).
The absence of authoritative legal guidance on the application of neutrality law to commercial satellite services creates legal uncertainty that both complicates the strategic integration of commercial space capabilities into military operations and provides diplomatic leverage for adversary states seeking to pressure commercial operators into withdrawing services from belligerents. Russia’s public claims that SpaceX had made itself a military target and its diplomatic pressure on commercial satellite operators represented exactly this exploitation of legal ambiguity to deter commercial actors from providing capabilities that Russia found militarily disadvantageous — a strategy whose effectiveness depended on the absence of a clear legal framework establishing the rights and obligations of commercial satellite operators in armed conflict.
5.3 The Personnel Dimension: Private Satellite Operators as Potential Targets
The legal status of the personnel who operate commercial satellite infrastructure in wartime — the engineers, operators, and managers who maintain and direct the satellites providing military communications or imagery — is a further dimension of the private actor legal problem that deserves explicit analysis. Under the law of armed conflict, civilians who directly participate in hostilities lose their protection from attack for the duration of their participation — a principle that, if applied to satellite operators providing military services, could characterize those operators as legitimate targets of military attack during the period of their military contribution.
The practical application of this principle to satellite operators is operationally consequential because satellite ground stations — the facilities from which commercial satellites are commanded and controlled — are physical locations that could be targeted by an adversary seeking to disable commercial satellite services being used for military purposes. An adversary that determines that a commercial ground station is directly contributing to hostile military operations might claim legal authority to attack that ground station through military means — missile attack, special operations, or cyber attack — on the grounds that the facility and its personnel have forfeited civilian protection through direct participation in hostilities. Whether this legal claim would be accepted by the international community, and whether the attacking state would face legal consequences for acting on it, depends on the resolution of the direct participation in hostilities question — a resolution that the current legal framework does not provide (Schmitt, 2023).
The vulnerability of ground stations to attack creates a specific force protection challenge for commercial satellite operators whose services are integrated into military operations: the military client’s use of the commercial service may expose the commercial operator’s physical infrastructure and personnel to military attack risk that would not exist absent the military integration. This risk exposure may not be adequately addressed by the commercial service agreements through which military organizations procure satellite services — creating liability, insurance, and security investment questions that neither commercial operators nor their government clients have systematically resolved.
6. Governance Responses: Regulation, Contract, and Norm Development
6.1 Regulatory Frameworks for Commercial Space Military Integration
The governance deficit created by the integration of commercial space actors into military operations — the absence of legal, regulatory, and contractual frameworks adequate to address the full range of strategic, operational, and legal questions that this integration raises — requires responses at multiple governance levels simultaneously. At the domestic regulatory level, the extension of national security considerations into the commercial space licensing and oversight framework represents the most immediate and most achievable governance development. The Federal Aviation Administration’s commercial launch licensing framework, the FCC’s satellite operator licensing framework, and the Department of Commerce’s emerging commercial remote sensing regulatory framework collectively constitute the regulatory architecture governing commercial space operations in the United States, and each provides potential entry points for the integration of national security requirements that the current framework largely lacks.
The development of a national security certification framework for commercial satellite operators — analogous to the facility security clearances and personnel security clearances that govern access to classified military information — would provide a regulatory basis for establishing security standards, information sharing obligations, and emergency authority provisions that the current commercial space licensing framework does not address. Such a framework could require commercial operators whose satellites are integrated into national security applications to maintain minimum cybersecurity standards, to notify appropriate government authorities of anomalous events that may indicate adversary interference, and to accept emergency government direction of their operations under specified conditions of national security emergency (Roper, 2022).
The authority for government emergency direction of commercial satellite operations — the question of whether and under what conditions the government can compel a commercial satellite operator to provide services, modify services, or restrict services in the national security interest — is the most legally sensitive regulatory question in the commercial space military integration domain. The analogous authorities in other domains — the Defense Production Act, which provides authority to direct commercial industrial production for national security purposes; the Communications Act, which provides authority to prioritize government communications in emergencies — provide partial models that could be adapted for the space domain. The development of a Space Communications Wartime Authority — modeled on existing emergency communications authorities and specifically designed to address the military use of commercial satellite communications — would represent the most directly applicable regulatory development for the Starlink-type problem.
6.2 Contractual Mechanisms: Terms of Service as Strategic Governance
In the absence of comprehensive regulatory frameworks, the contractual relationship between government military users and commercial satellite operators has become the primary governance mechanism for managing the military integration of commercial space capabilities — a development that places enormous strategic significance on commercial service agreements that were designed for commercial rather than military purposes. The procurement contracts through which the United States Space Force and allied military organizations purchase commercial launch services, imagery services, and communications services from commercial providers include provisions for security requirements, information protection, and service reliability that partially address the military integration requirements, but they do not address the full range of strategic and operational questions that military use of commercial satellites creates.
The development of more comprehensive government-commercial space partnership frameworks — long-term strategic agreements that address the full spectrum of military integration requirements rather than individual service procurement contracts — represents a more adequate contractual response to the governance challenge. The United States has begun developing such frameworks through the Space Force’s Commercial Space Integration Strategy and through bilateral agreements with specific commercial operators, but the pace of framework development has lagged behind the pace of commercial space capability development and military integration (United States Space Force, 2020).
The most challenging contractual governance question is the one illustrated most sharply by the Starlink-Ukraine experience: how to address situations where the private operator’s commercial, legal, or personal judgment about the appropriate terms of military use differs from the government’s military operational requirements. A contract provision that gives the government authority to direct service terms during active military operations — overriding the commercial operator’s own judgment about the appropriate scope of service — represents the most direct contractual solution to this problem but also the provision that commercial operators are most resistant to accepting, since it transfers decision authority from private management to government military command in ways that create significant commercial, legal, and reputational risks for the operator.
6.3 International Norm Development for Commercial Space in Conflict
The international normative framework governing the behavior of commercial space actors in armed conflict — the expectations that the international community maintains about what commercial satellite operators may, must, and must not do when their services are being used in a military context — is essentially nonexistent as a developed body of shared understanding, and its development represents one of the most important and most neglected gaps in the space security governance agenda. The development of international norms specifically addressing commercial satellite operators in conflict would complement the regulatory and contractual mechanisms discussed above by establishing the expectations that govern state behavior toward commercial operators — including the expectations that constrain adversary states from attacking commercial satellite infrastructure being used for military purposes — and the expectations that govern commercial operators’ own behavior in conflict situations.
The historical precedent of merchant shipping in naval warfare provides a partial model for the normative framework that commercial space operators require. The law of naval warfare — codified in the San Remo Manual and other instruments — establishes the conditions under which neutral merchant shipping can be attacked, boarded, or seized by belligerent naval forces, the obligations of neutral merchants to avoid carrying contraband to belligerents, and the immunities that civilian ships retain even in a war zone. The development of an analogous “law of commercial space operations in armed conflict” — addressing the conditions under which commercial satellites can be targeted, the obligations of commercial operators to maintain neutrality, and the immunities that commercial space infrastructure retains — would provide the normative architecture within which the specific regulatory and contractual mechanisms discussed above could operate.
The development of such norms faces the same political obstacles as all space arms control and governance initiatives — the strategic interest of the major space powers in preserving their freedom of action in the space domain, the definitional challenges of applying traditional legal concepts to a novel technological environment, and the difficulty of achieving sufficiently broad adherence to make the norms effective. But it also benefits from a specific political dynamic that may make norm development more achievable than general space arms control: the commercial satellite industry has strong economic incentives to support norms that protect its operations from military attack and that establish clear boundaries between legitimate commercial activity and participation in hostilities that would expose operators to targeting risk. The alignment between commercial industry interests and the governance objectives of norm development creates a political constituency for commercial space warfare norms that other space arms control initiatives have lacked.
6.4 The Alliance Dimension: Collective Management of Commercial Space Integration
The integration of commercial space capabilities into military operations is not a bilateral problem between individual governments and their commercial space sectors; it is a collective challenge for alliances and coalitions whose members have different regulatory frameworks, different relationships with commercial space operators, and different levels of military dependence on commercial space infrastructure. Within NATO, the integration of commercial satellite services into alliance military operations creates governance challenges that span the different national regulatory frameworks of alliance members, the different contractual relationships that different alliance members have with commercial operators, and the different legal interpretations that alliance members may maintain about the status of commercial space infrastructure in armed conflict.
The development of alliance-level governance frameworks for commercial space integration — including agreed standards for the security of commercial satellite services used in NATO operations, agreed protocols for the coordination of commercial satellite service procurement across alliance members to avoid competing demands on limited commercial capacity, and agreed procedures for the escalation of commercial service integration decisions from individual member states to alliance-level coordination — represents an important but thus far incompletely developed dimension of NATO space cooperation. The 2019 declaration of space as an operational domain by NATO and the subsequent development of NATO’s space policy framework provide institutional foundations for this alliance-level commercial space governance development, but the specific mechanisms for commercial space integration governance within the alliance framework remain in early stages of development (NATO, 2019).
7. Strategic Implications: The New Grammar of Space Power
7.1 Power Without Authority: The Private Actor’s Strategic Role
The most fundamental strategic implication of the private actor problem in space warfare is that significant space power — the capacity to affect military operations through the use of space-based capabilities — can now be exercised by entities that are neither state military actors nor subject to state military authority. SpaceX’s decisions about Starlink service in Ukraine affected the course of military operations as directly as many state military decisions in that conflict, but they were made by a private company’s management without the accountability structures, legal authorities, or democratic oversight that govern state military decisions. This exercise of strategic power without corresponding political authority and accountability represents a novel and potentially destabilizing feature of the contemporary strategic environment that existing frameworks for thinking about state power and military authority have not addressed.
The novelty of this situation should not be overstated — private actors have exercised strategic power without democratic accountability throughout history, most notably through the East India Companies and the privateers of the age of sail. But those historical examples operated in contexts where the scope of private strategic power was more limited and where state authority over private military activity was more firmly established in legal custom and practice. The commercial space operator of the twenty-first century exercises strategic power in a domain where state authority is poorly established, at a scale that dwarfs most historical examples of private strategic power, and through technical capabilities whose military significance is not fully understood by the regulatory and legal frameworks nominally governing their operation.
7.2 Deterrence Complications: Commercial Actors and Escalation Management
The integration of commercial space actors into military operations complicates deterrence and escalation management in ways that the preceding paper on orbital deterrence and escalation did not fully address, because deterrence frameworks are designed around state actors with clear authority structures and identifiable decision makers. An adversary seeking to deter the military use of a commercial satellite constellation must communicate its deterrence threat to an actor — the private operator — whose decision calculus is shaped by commercial considerations, legal risk assessments, personal values, and reputational concerns rather than by the strategic logic of interstate deterrence that military threats are designed to engage. A threat communicated to a state government may not be effectively transmitted to the commercial operator that controls the capability being threatened, particularly if the communication takes the form of implicit signals rather than explicit diplomatic communication.
The Starlink-Ukraine case illustrated this deterrence complication explicitly. Russian implicit signals of intent to respond to Starlink’s military role — including the statements characterizing SpaceX as a legitimate military target — were directed simultaneously at the Ukrainian government, the American government, and SpaceX’s private management, with different deterrent implications for each audience. The deterrent effect on SpaceX’s management — whose decisions about service terms were the immediate determinant of Starlink’s military utility — may have been greater than the deterrent effect on state military planning, since SpaceX’s management faced legal, commercial, and personal risk exposure from being characterized as a military target that state military planners did not face in the same form. This suggests that adversaries may find commercial satellite operators more susceptible to below-threshold deterrence and coercive pressure than state military actors — a strategic dynamic that creates incentives for adversaries to target commercial actors as a mechanism for influencing military operations without engaging in overt military escalation against state armed forces.
7.3 The Privatization of Space Power and Long-Term Strategic Implications
The long-term trajectory of commercial space development — toward larger commercial constellations, greater commercial launch capacity, and more commercially accessible space-based capabilities — suggests that the private actor problem in space warfare will become more rather than less acute over the coming decade. The deployment of Amazon Kuiper, the expansion of Starlink to tens of thousands of satellites, the potential entry of additional large commercial constellation operators, and the continued reduction in the cost of satellite manufacturing and launch will progressively increase the proportion of strategically significant space infrastructure that is owned and operated by private actors rather than states.
This privatization of space power — if unaccompanied by the development of adequate governance frameworks — creates the prospect of a future space warfare environment in which the most consequential actors are not the state space forces whose doctrine, capabilities, and escalation management behaviors have been the primary focus of space security analysis, but the commercial operators whose decisions about service terms, pricing, and operational parameters may more directly determine the military effectiveness of space-based capabilities in specific conflict scenarios. Strategic analysis and policy development must begin to address this prospect systematically rather than treating it as a secondary complication of the primarily state-centric space security problem.
7.4 Commercial Space and the Changing Character of Space Arms Control
The private actor problem has direct implications for the character and feasibility of space arms control that have not yet been adequately integrated into space arms control scholarship and policy development. Traditional arms control treaties bind states, create obligations that states implement through their control over national military programs, and are verified through monitoring of state military activities. An arms control framework designed around state actors cannot directly bind commercial space operators, cannot be verified through the monitoring of commercial space activities that states do not fully control, and cannot be enforced through the traditional mechanisms of state compliance pressure and sanctions when the primary actors whose behavior is being regulated are private entities operating across multiple jurisdictions.
The development of space arms control frameworks adequate to the commercial space era requires either the extension of state arms control obligations to encompass state responsibilities for the space activities of commercial operators under their jurisdiction — a significant expansion of the regulatory authority that states currently exercise over commercial space actors — or the development of novel arms control mechanisms that directly engage commercial actors through regulatory, contractual, and normative frameworks rather than solely through state treaty obligations. Neither approach is straightforward, but both are more achievable than the alternative of developing arms control frameworks that ignore the commercial actor dimension of contemporary space power and thereby produce agreements whose practical significance is progressively reduced as the strategic importance of commercial space infrastructure grows.
8. Conclusion: Governing the Ungoverned Variable
The analysis developed in this paper converges on a conclusion whose urgency is commensurate with its novelty: the private actor problem in space warfare — the integration of commercial mega-constellations, private launch providers, and dual-use commercial satellites into the strategic competition and military operations of the space domain — represents a structural variable in contemporary space warfare for which no existing governance framework is adequate, and whose governance deficit will produce escalating instability as commercial space capabilities continue to grow in military significance.
The inadequacy of existing frameworks is not the result of oversight or negligence; it reflects the genuine novelty of the commercial space revolution and the speed at which that revolution has outpaced the governance processes that might have kept pace with it under calmer developmental conditions. The Outer Space Treaty was negotiated before the commercial satellite industry existed in any meaningful form. The law of armed conflict was developed for conflicts between state actors with clearly identifiable military and civilian components. The regulatory frameworks governing commercial space operations were designed for commercial actors operating in peacetime without military integration requirements. None of these frameworks anticipated the situation that now exists, and their adaptation to that situation — while necessary and achievable — requires deliberate analytical and institutional effort that the urgency of commercial space’s military significance demands.
Three governance priorities emerge from this analysis as most urgent. The first is the development of domestic regulatory frameworks that extend national security requirements — security standards, emergency authority provisions, mandatory notification of adversary interference — to commercial space operators whose services are integrated into national security applications, providing the governance architecture within which commercial military integration can occur on terms that serve both national security and commercial development. The second is the development of international norms — through multilateral diplomatic processes, bilateral agreements between major space powers, and the engagement of commercial space industry organizations — that establish the expectations governing state behavior toward commercial satellite infrastructure in armed conflict, providing the normative framework within which the specific legal questions of targeting, neutrality, and combatant status can be addressed with greater clarity. The third is the sustained integration of commercial space actors — not merely as objects of regulation but as participants — into the strategic planning, doctrine development, and governance processes through which the space domain is managed, since the governance frameworks adequate to the private actor problem cannot be developed without the engagement of the private actors who are its primary subject.
The ungoverned variable of private space power will not remain ungoverned indefinitely; the question is whether its governance develops proactively, through deliberate policy development before the most acute crises arise, or reactively, through the painful learning process of managing crises that inadequate governance frameworks have allowed to escalate beyond their necessary scope. The history of military technological revolutions — the introduction of the submarine, the development of air power, the advent of nuclear weapons — suggests that governance development invariably lags capability development, and that the lag’s consequences are severe before the governance eventually catches up. In the space domain, where the consequences of governance failure include escalation to nuclear conflict and permanent damage to the orbital commons, the case for accelerating the governance development cycle beyond its historical pace is as compelling as it has ever been for any military technological revolution in history.
Notes
Note 1: The term “commercial mega-constellation” is used throughout this paper to refer to large-scale LEO satellite constellations — typically exceeding several hundred satellites and aiming for several thousand — operated primarily for commercial internet service provision but whose military implications are the subject of this paper’s analysis. This usage distinguishes commercial mega-constellations from the dedicated military satellite constellations examined in other papers in this series and from smaller commercial constellations whose military significance is more limited.
Note 2: The specific decisions made by SpaceX and its principal owner regarding Starlink service in Ukraine are described in this paper based on publicly available reporting, which has been contested in some of its details. Walter Isaacson’s biography of Elon Musk, published in 2023, provided the most detailed public account of SpaceX’s decision-making regarding Starlink service limitations in Ukraine, including the Crimea incident. SpaceX disputed aspects of Isaacson’s account, and the full factual record of SpaceX’s service decisions in Ukraine is not publicly established with the precision that definitive historical assessment would require. The paper treats the publicly available reporting as sufficient to illustrate the structural governance problem that SpaceX’s decision authority represents, while acknowledging that the specific factual details of individual decisions remain subject to dispute.
Note 3: The Defense Production Act of 1950 (50 U.S.C. §§ 4501-4568) provides the United States government with authority to prioritize and allocate materials and services to promote national defense, and has been invoked to direct private industrial production for military purposes in multiple contexts. Its potential application to commercial satellite service providers — as a mechanism for compelling commercial operators to provide services to military users or to modify service terms in the national security interest — has been discussed in space policy literature but has not been formally assessed or implemented in the space context. The development of specific Space Defense Production Act authority — either through amendment of the existing Act or through new legislation tailored to the space domain — represents one potential regulatory mechanism for addressing the command authority problem created by commercial space military integration.
Note 4: The commercial remote sensing regulatory framework in the United States — governed by the National Oceanic and Atmospheric Administration’s (NOAA) commercial remote sensing licensing authority under 51 U.S.C. §§ 60101-60148 and the 2020 Commercial Space Launch Competitiveness Act’s updates — provides the existing regulatory framework through which the government exercises oversight of commercial imaging satellites. This framework includes provisions for “shutter control” — the authority to order commercial imaging companies to refrain from collecting or distributing imagery of specific areas during national security emergencies. The shutter control authority has been progressively relaxed as commercial imaging resolution has improved and as the government has determined that imagery available through foreign commercial providers makes unilateral American shutter control increasingly ineffective. The limitations of shutter control as a governance mechanism for dual-use commercial imagery illustrate the broader challenge of applying traditional regulatory authorities to commercial space capabilities whose global market character makes unilateral national regulation progressively less effective.
Note 5: The AIS (Automatic Identification System) used by commercial shipping and the ADS-B (Automatic Dependent Surveillance-Broadcast) system used by commercial aviation are both detectable by commercial signals intelligence satellites, providing commercial coverage of the positions and movements of maritime and air traffic that has significant military intelligence value. The commercial availability of AIS and ADS-B data — including the detection of gaps in coverage that may indicate the transit of vessels or aircraft not broadcasting identification signals — illustrates how commercial dual-use data collection creates military intelligence products without any intent or acknowledgment by the commercial operators that they are performing an intelligence function.
Note 6: The concept of “direct participation in hostilities” in international humanitarian law has been elaborated by the International Committee of the Red Cross in its 2009 Interpretive Guidance, which establishes three cumulative criteria for determining when a civilian’s act constitutes direct participation: the act must be likely to cause harm to the opposing party or protected persons or objects, there must be a direct causal link between the act and the expected harm, and the act must be specifically designed to directly cause the required harm in support of a party to the conflict and to the detriment of another. The application of these criteria to commercial satellite operations providing military services — where the harm is indirect (through the military operations the satellite enables rather than through the satellite itself), the causal link is mediated through military user decisions, and the “design” of the commercial service is commercial rather than military — creates analytical challenges that the Interpretive Guidance does not directly address.
Note 7: NATO’s 2019 London Declaration, which affirmed space as an operational domain for the Alliance, and the subsequent NATO Space Policy adopted in 2022, provide the institutional framework for alliance-level space cooperation but address commercial space integration primarily through general statements about leveraging commercial space capabilities rather than through specific governance mechanisms for managing the military integration of commercial services. The gap between the strategic aspiration of commercial space integration and the specific governance frameworks necessary to manage it responsibly within the alliance structure represents one of the most important near-term institutional development priorities for NATO space cooperation.
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