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Legal Issues Relating to Military Use of
Satellite Communications, Remote Sensing
and Direct Television Broadcasting Systems
against International Terrorism
Ricky J. Lee*
I. INTRODUCTION
The image of special operations forces soldiers riding horses alongside Northern
Alliance forces [in Afghanistan] belies their true capabilities. Inside their saddle
packs are global positioning system (GPS) trackers, laser designators, satellite
communications gear that enables them to talk directly to pilots overhead, and
laptop computers on which to download satellite imagery. They know where they
are. Through the clever combination of GPS-derived position data, advanced
communications, and a variety of space and airborne sensors, they are able to give
fellow soldiers and their commanders – in and outside the theatre – a continuous
picture of their location and movements. … These force enhancement capabilities
enable our special operations soldiers to accurately identify the locations of targets
from a safe distance, relay the target coordinates via satellite phones or laptop
computers to warplanes circling overhead, and then get back on their horses to ride
to the next target.1
Since the terrorist attacks masterminded by Osama bin Laden and his al-Qaeda network on 11
September 2011 in New York City and Washington, D.C., the United States and its allies, including
Australia, have launched the “War on Terror” on al-Qaeda, the Taliban regime in Afghanistan and the
Saddam Hussein regime in Iraq.2 In the course of conducting military operations in the War on Terror,
Copyright © 2011 by the author. All rights reserved.
* Ph.D.(Murdoch) LL.M.(ANU) B.A.(Int.St.)(Hons.)(Adelaide) LL.B.(Hons.)(Adelaide) G.D.L.P. Candidate, D.Phil.(Cologne)
and M.Tax.(UNSW). Special Counsel, Schweizer Kobras (Sydney, Australia). Director, International Air and Space Law
Association. Member, Space Law Committee of the International Law Association, Outer Space Committee of the
International Bar Association and the International Law Section of the Law Council of Australia. The author would like to
thank Sasha M. Bellamy, Acting Director – External Legal Services, Defence Legal, Department of Defence, for her assistance
and contribution towards this paper. The views and opinions expressed in this paper are those of the authors and do not
necessarily reflect those of any organisation or entity with which they are associated.
1 Lt. Gen. Joseph M. Cosumano, Jr., “Space Criticality to Ongoing Military Operations” (2002) 1:2 Army Space J. 1.
2 For discussion on the conduct of the War on Terror by the United States and its allies, see Arnaud Blin, “The United States
Confronting Terrorism”, in Gérard Chaliand and Arnaud Blin (eds.), The History of Terrorism: From Antiquity to al Qaeda
(Edward Schneider, Kathryn Pulver and Jesse Browner, trans., 2007 ed.), at 398; Ahmed Rashid, Descent into Chaos: The
United States and the Failure of Nation Building in Pakistan, Afghanistan and Central Asia (2008); Bob Woodward, Bush at
Ricky J. Lee
Legal Issues Relating to Military Use of Satellite Communications,
Remote Sensing and Direct Television Broadcasting Systems against International Terrorism
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various satellite applications have been utilised by the U.S. and allied armed forces to facilitate and
support their military and intelligence-gathering operations, particularly remote sensing,
communications and global positioning systems.3 Further, the War on Terror has also caused the U.S.
armed forces to innovate the technology in military satellite applications as well as different ways in
which satellite applications may be used by the armed forces to make their operations more effective.4
In this article, practical examples of satellite applications used by U.S. and allied armed forces in their
War on Terror are used to illustrate how such applications can facilitate and support military and
intelligence gathering operations. This is then followed by a discussion as to the general and specific
principles of international law dealing with military uses of satellite applications. The article ends with
suggestions as to international guidelines, a precursor to a possible multilateral treaty, which the
international community may wish to consider adopting in providing some freedoms and restrictions
on the military uses of outer space, both in the context of the War on Terror and in future international
military conflicts.
II. MILITARY USE OF SATELLITE APPLICATIONS IN THE WAR ON TERROR
A. Past and Present Military Operations in the War on Terror
Although the term “War on Terror” is customarily used to describe the intelligence gathering and
military operations undertaken since the terrorist attacks on 11 September 2011, it would be inaccurate
to suggest that military operations against terrorism did not take place before that date. In 1984,
President Reagan referred to the “war against terrorism” when attempting to convince the U.S.
Congress to pass legislation on freezing terrorist assets after the bombing by Islamic Jihad on 23
October 1983 of barracks in Beirut, Lebanon that killed 299 French and U.S. troops.5 In 1998, following
the bombings of U.S. embassies in Kenya and Tanzania, President Clinton launched “Operation Infinite
Reach” that involved bombing terrorist targets in Afghanistan and Sudan.6
There is no doubt that the “War on Terror” heated up after the terrorist attacks of 11 September 2011.
On 12 September 2001, the North Atlantic Treaty Organisation (“NATO”) invoked article 5 of the
North Atlantic Treaty and declared the terrorist attacks to be an armed attack against all 19 members of
War (2002); Bob Woodward, Plan of Attack (2004); Anonymous, Imperial Hubris: Why the West is Losing the War on Terror
(2004); and Victor Davis Hanson, Autumn of War: What America Learned from September 11th and the War on Terrorism
(2002).
3 See, for example, Capt. Chris Watt, Space Superiority Essential in War (2004), Space Daily,
<http://www.spacedaily.com/news/milspace-04k.html> at 24 July 2011.
4 Marco Cáceres, “Military Satellites: The Next Generation” (2002) 40:1 Aerospace Am. 20; and Jeremy Singer, “Satellites Must
Take New Roles in War on Terror, Experts Say”, The Federal Times (Springfield, Virginia, United States), 18 September 2006,
at 16.
5 Shane Harris, The Watchers: The Rise of America’s Surveillance State (2010); Eric Hammel, The Root: The Marines in Beirut,
August 1982 – February 1984 (1985); Robert C. McFarlane, “From Beirut to 9/11”, The New York Times, 23 October 2008, at
37; and Rick Hampson, “25 Years Later, Bombing in Beirut Still Resonates”, USA Today, 16 October 2008, at 1.
6 Cable News Network, U.S. Strikes Terrorist Targets in Afghanistan, Sudan, at <http://articles.cnn.com/1998-08-
20/us/9808_20_clinton.02_1_chemical-weapons-afghanistan-and-sudan-attacks?_s=PM:US> on 21 July 2011; and Cable
News Network, U.S. Retaliates for Africa Bombings, at <http://articles.cnn.com/1998-08-
20/us/9808_20_clinton.01_1_chemical-weapons-attacks-bombings?_s=PM:US> on 21 July 2011.
Ricky J. Lee
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Remote Sensing and Direct Television Broadcasting Systems against International Terrorism
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NATO.7 Australia also invoked the Security Treaty between Australia, New Zealand and United States
of America (the “ANZUS Treaty”) along similar lines.8 The phrase “War on Terror” was used by the
Bush Administration soon after the terrorist attacks of 11 September 2001. On 16 September 2001,
President Bush said:
This crusade – this war on terrorism – is going to take a while, and the American
people must be patient. I’m going to be patient. But I can assure the American
people I am determined. 9
The War on Terror by the U.S. and its allies can be broadly described to include the following
operations (together the “War on Terror Operations”):
(1) “Operation Active Endeavour”, a naval operation of NATO in the Mediterranean Sea beginning
on 4 October 2001 to prevent the maritime movement of terrorists and weapons of mass
destruction;10
(2) “Operation Enduring Freedom”, the name given to a number of military operations involving the
U.S. and its allies in Africa, the Middle East, the Philippines and, most notably Afghanistan;,
where the U.S. and a coalition of allies invaded on 7 October 2001 with the goal of deposing the
Taliban regime for giving shelter and support to Osama bin Laden and al-Qaeda;11
7 North Atlantic Treaty, opened for signature 4 April 1949, 34 U.N.T.S. 243 (entered into force on 24 August
1949), article 5. See also Michael A. Goldberg, “Mirage of Defence: Reexamining Article Five of the North
Atlantic Treaty after the Terrorist Attacks on the United States” (2003) 26 Boston College Int’l. & Comp. L. Rev.
77; and Broderick C. Grady, “Article 5 of the North Atlantic Treaty: Past, Present, and Uncertain Future” (2002)
31 Ga. J. Int’l & Comp. L. 167 at 198.
8 Australia, New Zealand and United States Security Treaty, opened for signature on 1 September 1951, [1952] A.T.S. 2
(entered into force 29 April 1952), articles IV and V. See also Parliament of Australia, Australia’s Defence Relations with the
United States: Inquiry Report (2006); and Maj. Gen. Peter Abigail, “The Impact of Terrorism on Australian Defence and
Security Policy” (paper presented at the Security in Government Conference, Canberra, Australia, 11 May 2006).
9 Kenneth R. Bazinet, “A Fight vs. Evil, Bush and Cabinet Tell U.S.”, New York Daily News (New York, United States), 17
September 2001. See also Sid Jacobson and Ernie Colón, After 9/11: America’s War on Terror (2001-) (2008); and Emily
Camins, “War Against Terrorism: Fighting the Military Battle, Losing the Psychological War” (2003-2004) 15 Current Issues
Crim. Just. 95.
10 See Lambert M. Surhone, Miriam T. Tennoe and Susan F. Henssonow (eds.), Operation Active Endeavour (2011); Jennifer
Medcalf, Going Global or Going Nowhere? NATO’s Role in Contemporary International Security (2008); Richard E. Rupp,
NATO After 9/11: An Alliance in Continuing Decline (2006); and Kate Glassborrow, “Interview: Rear Admiral Richard
Leaman (OBE)” (2006) 111:5 Jane’s Navy Int’l. 66.
11 See generally Tim Ripley, Operation Enduring Freedom (2011); Valerie Tystad, Operation Enduring Freedom: Tactics,
Techniques and Procedures (2008); Donald P. Wright, A Different Kind of War: The United States Army in Operation
Enduring Freedom (2010); Sean M. Maloney, Enduring the Freedom: A Rogue Historian in Afghanistan (2005); Seth G. Jones,
In the Graveyard of Empires: America’s War in Afghanistan (2010); Anthony H. Cordesman, Adam Mausner and David
Kasten, Winning in Afghanistan: Creating Effective Afghan Security Forces (2009); and Geoffrey Hayes, Afghanistan:
Transition under Threat (2008).
Ricky J. Lee
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Remote Sensing and Direct Television Broadcasting Systems against International Terrorism
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(3) “Operation Iraqi Freedom”, also known as “Operation Falconer” in Australia and “Operation
Telic” in the United Kingdom, involved the invasion of Iraq on 20 March 2003 by U.S.-led forces
and its continuing occupation that ended, at least on paper on 1 September 2010;12 and
(4) “Operation New Dawn”, the name given to the continuing involvement of U.S.-led forces in non-
combat operations in Iraq.13
Since the beginning of the Obama Administration, it has been reported that the phrase “War on Terror”
is actively being removed from customarily usage to describe the continuing U.S. operations in
Afghanistan, Iraq and worldwide against al-Qaeda and other terrorist groups, preferring instead to
describe them as the “Overseas Contingency Operation”.14 Critics, included the International
Commission of Jurists and former U.S. military officers, have argued that the term “War on Terror” was
“enormously unfortunate because … it pulled together disparate organisations and insurgencies” and
gave the Bush Administration “spurious justification to a range of human rights and humanitarian law
violations”.15
The War on Terror, called by any other name, nevertheless reflects the widest scope of military use of
satellite applications and the highest U.S. government spending invested in military and dual-use space
assets since the end of the Cold War.16 For example, the U.S. Air Force has a $46 billion portfolio on
military satellite communications systems alone.17 In the meantime, increasing demands on satellite
applications by the U.S. armed forces have spurred evolution of satellite technologies and continuing
12 See Thomas Donnelly, Operation Iraqi Freedom: A Strategic Assessment (2004); Walter J. Boyne, Operation Iraqi Freedom:
What Went Right, What Went Wrong, and Why (2003); Kristin F. Lynch, Lessons in Operation Iraqi Freedom (2005); Gregory
Hooker, Shaping the Plan for Operation Iraqi Freedom: The Role of Military Intelligence Assessments (2005); and Ronald
Huisken and Meredith Thatcher (eds.), History as Policy: Framing the Debate on the Future of Australia’s Defence Policy
(2007).
13 Nathan Hodge, “As Combat Mission Ends, A New U.S. Operation Begins”, The Wall Street Journal (New York, United
States), 1 September 2010; Michael M. O’Brien, America’s Failure in Iraq: Intervention to Withdrawal 1991-2010 (2010); and
Anthony H. Cordesman, Adam Mausner and Elena Derby, Iraq and the United States: Creating a Strategic Partnership
(2010).
14 Tom Leonard, “‘War on Terror’ Rebranded as ‘Overseas Contingency Operation’”, The Telegraph (London, United
Kingdom), 25 March 2009; Letter from Sharon L. Pickup, U.S. Government Accountability Office to Congressional
Committees, 10 July 2009; Joe Queenan, “War By Any Other Name”, The Wall Street Journal (New York, United States), 13
April 2009; and Christian Brose, The War on Terror, RIP, Foreign Policy, at
<http://shadow.foreignpolicy.com/posts/2009/03/24/the_war_on_terror_rip>, on 11 June 2011.
15 Scott Wilson and Al Kamen, “‘Global War on Terror’ is Given New Name”, The Washington Post (Washington, D.C., United
States), 25 March 2009.
16 Pat Towell and Stephen Daggett (eds.), FY2010 Defence Authorisation and Appropriations: Including Selected Military
Personnel Policy Issues and the Cost of Iraq, Afghanistan and Other Global War on Terror Operations Since 9/11 (2010);
William Matthews, “U.S. House-Senate Defence Bill Hits Arms Costs $491 Billion Funds JSF, But Trims FCS, Space Radar
and Satellite Programs”, Defence News (Springfield, Virginia, United States), 2 January 2006; and Richard Sanders, “Satellites
of War: RADARSAT and Canada’s Leading Role in the Militarisation of Space” (2006) 40:4 Can. Dimension 14.
17 Mark Holmes, Harding: Addressing Satcom Demand, Satellite Today, at <http://www.satellitetoday.com/
military/netwarfare/Harding-Addressing-Satcom-Demand_33780.html>, on 11 June 2011; Dan Freyer, “Commercial Bus
Rides: Fast Ticket to Space” (2009) 24:9 Via Satellite M12; and Anne Wainscott-Sargent, “Commercial’s Growing Profile in
the New MilsatCom Landscape” (2011) 26:9 Via Satellite M-8.
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Remote Sensing and Direct Television Broadcasting Systems against International Terrorism
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expansion of commercial capacity, with the military becoming the largest customer for commercial and
dual-use satellite applications.18
B. Satellite Communications
1. MILSTAR and AEHF Systems
The U.S. Air Force operates its MILSTAR (Military Strategic and Tactical Relay) five-satellite
communications system in geostationary orbit, which has to date provided jam-resistant and secure
communications worldwide. Each of the MILSTAR satellites had a price tag of USD 800 million and
provides low data rate communications for voice and data at 75 bps to 2,400 bps and medium data rate
communications at 4.8 kbps to 1.544 mbps.19
The U.S. Air Force is in the process of replacing the MILSTAR system with the new AEHF (Advanced
Extremely High Frequency) system, comprising four geostationary satellites providing secure relay
communications for the U.S. Air Force as well as the armed forces of Canada, the Netherlands and the
United Kingdom at a cost of USD 2.698 billion.20 In addition to voice and data, the AEHF system will
have the capacity to transmit tactical communications, such as real-time video, battlefield maps and
targeting data.21
2. UFO System and MUOS
The U.S. Navy has been utilising the UFO (UHF Follow-On) satellite communications system for their
ground communications, given the need to maintain voice and data communications channels across a
wide area around the world for its involvement in the War on Terror Operations.22 The proposed
MUOS (Mobile User Objective System) would double the declared military capacity for UHF voice
communications in high-density conflict zones, though it is not expected to be operational until after
2018.23 Cácares suggested that:
18 Greg Berlocher, “Military Demand Brings Antenna Improvements” (2010) 25:9 Via Satellite M-6; and Mark Holmes,
“Military Satellite Market: To Remain Strong Around Globe” (2009) 24:4 Via Satellite M-14.
19 U.S. Air Force, Milstar Satellite Communications System, at
<http://www.af.mil/information/factsheets/factsheet.asp?fsID=118>, on 14 June 2011.
20 Amy Butler, USAF Plans for AEHF Launch Next Week, Aviation Week, at
<http://www.aviationweek.com/aw/generic/story_generic.jsp?channel=aerospacedaily&id=news/asd/2010/08/04/07.xml
>, on 5 August 2011.
21 Jane’s Information Group, Advanced EHF (AEHF) System (United States), Satellite Systems and Equipment, Jamne’s Military
Communications, at <http://articles.janes.com/articles/Janes-Military-Communications/Advanced-EHF-AEHF-system-
United-States.html>, on 22 June 2011; and Justin Ray, Air force Launches Advanced New Military Satellite, at
<http://www.space.com/8950-air-force-launches-advanced-military-satellite.html>, on 14 August 2011.
22 Cácares, above n. 4.
23 David A. Fritz, Bharat T. Doshi, Andrew C. Oak, Steven D. Jones, Jack L. Burbank, Harry L. Miller, John D. Oetting, Ryan
M. Collins, Lino A. Gonzalez and Robert A. Nichols, “Military Satellite Communications: Space-Based Communications for
the Global Information Grid” (2006) 27:1 John Hopkins APL Tech. Digest 32; and Donald v. Z. Wadsworth, “Military
Communications Satellite System Multiples UHF Channel Capacity fort Mobile Users”, in Military Communications
Conference Proceedings: Volume 2 (1999), at 1145-1152.
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Remote Sensing and Direct Television Broadcasting Systems against International Terrorism
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The sense we are getting is that the U.S. military is perfectly willing to slow down
development of some of its space-based assets during the next few years unless
Congress authorises generous increases in funding.24
3. DSCS, WGS and Dual-Use Satellites
The U.S. Army and the other U.S. armed forces utilise the DSCS (Defence Satellite Communications
System), which is a constellation of geostationary satellites designed to provide high volume and secure
voice and data communications.25 The DSCS is now operational beyond its expected ten-year lifespan
and is slated to be replaced by the WGS (Wideband Global SATCOM) system, a joint venture between
the Australian and U.S. Governments.26 The WGS is expected to enable the armed forces of both
countries to have significantly enhanced capabilities in tactical command and control, communications,
computers, intelligence, surveillance and reconnaissance (C4ISR).27
The deployment of the WGS system would enable the armed forces of the U.S. and its allies to be less
dependent on commercial satellite operators for communications services. In Australia, for example,
the Ka-band and X-band telecommunications links provided by the Optus C-1 satellite, launched on 12
June 2003, is used presently for medium to high data rate defence theatre coverage as well as voice and
data communications.28 When the WGS partnership between Australia and the U.S. was announced,
the spokesperson for the Australian Department of Defence said:
Optus C1 provides SATCOM coverage over Australia and leased SATCOM services
are used to provide wideband SATCOM support to the ADF [Australian Defence
Forces] elsewhere in the world. The WGS system will provide global SATCOM
coverage to the ADF and communications capacity orders of magnitude greater
than that provided by the current SATCOM system. Use of WGS allows
[Australian] Defence to reduce the operating budge4t associated with commercial
SATCOM leases.29
4. Increasing Demand for Military Satellite Communications
The use of telecommunications satellites to provide mobile communications beyond line of sight is one
of the two most essential satellite applications used in military operations (the other being remote
24 Cácares, above n. 4.
25 William E. Burroughs, Deep Black (1986), at 187.
26 Satellite Today, Australia to Fund Sixth WGS Satellite, at <http://www.satellitetoday.com/st/topnews/19168.html>, on 24
July 2011.
27 Justin Ray, Atlas 5 Rocket Successfully Launches Military Satellite, Spaceflight Now, at
<http://spaceflightnow.com/atlas/av016/>, on 24 July 2011; and Satellite Today, above n. 26.
28 Tim Lohman, Defence to Boost Satellite Communication Capabilities, Computer World, at
<http://www.computerworld.com.au/article/322572/defence_boost_satellite_communication_capabilities/>, on 21 July
2011.
29 As above; and Satellite Today, above n. 26.
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Remote Sensing and Direct Television Broadcasting Systems against International Terrorism
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sensing by satellites). For example, with 38,000 NATO and 47,000 U.S. troops in Afghanistan as well as
115,000 U.S. troops in Iraq, the military has a great demand for satellite communications services.30
Regardless of how much capacity is increased by the launch and deployment of military satellite
communications systems, there will always be a need to supplement this capacity with purchase of
bandwidth on commercial satellite systems. At present, around 80% of all U.S. governmental satellite
communications traffic, including those for the military, is carried over commercial satellite
communications systems.31 However, Richard Dalbello, who was Vice President of Government Affairs
at Intelsat, observed that:
The government is our single largest customer and while they are an extremely large
and important customer, they represent only 12% of Intelsat’s total business. There
has been an explosion of demand for cellular backhaul services in Africa and for
video services in the Middle East. … There have been times the government has
needed bandwidth in specific regions and it simply wasn’t available.32
With the War in Terror expected to continue for some time into the future and its geographical scope
expanding beyond both Afghanistan and Iraq, it is crucial for the armed forces of the U.S. and its allies
in the War on Terror to increase their satellite communications capacity to meet their C4ISR
requirements in the short and medium term future.33
C. Remote Sensing
1. Overview
Remote sensing, even in primitive forms, has been used for centuries both before and during battle, to
maintain an advantage over the enemy by having knowledge of the deployment of strategic targets to
influence a successful outcome. Remote sensing in its military application saw its beginnings in hot air
balloons and advanced to the high-resolution satellites available both commercially and to the military
at present.34
Since the beginning of the space age, satellite remote sensing reconnaissance has been an invaluable tool
for the military in its operations, both past and present.35 During the Cold War, the earliest U.S.
satellite programs were classified military remote sensing programs and this has remained the case well
30 Richard Kusiolek, “Pace of Operations Increases Demand on SATCOM on the Move” (2010) 25:4 Via Satellite M-6; and
Mark Holmes, “Satellite Vendors Ready to Meet Military Challenges” (2008) 23:4 Via Satellite M-6.
31 Greg Berlocher, “Military Continues to Influence Commercial Operators” (2008) 23:9 Via Satellite M-6.
32 As above, at M-8.
33 Mark Holmes, “Government Seeks New Ways to Meet Communications Needs” (2010) 24:4 Via Satellite M-12; and Capt.
Chris Watt, Space Superiority Essential in War, Space Daily, at <http://www.spacedaily.com/news/milspace-04k.html>, on
21 July 2011.
34 Brian D. Gtaves, Remote Sensing and Military Transformation: Lifting the Fog of War, at
<http://www.emporia.edu/earthsci/student/graves1/project.html>, on 1 August 2011.
35 Ray Harris, Satellite Remote Sensing: An Introduction (1987); and Richard C. Olsen, Remote Sensing from Air and Space
(2007).
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after the Cold War.36 The technologies utilised by the U.S. National Reconnaissance Office, which
operates and manages satellite remote sensing imagery data for the U.S. intelligence services, include:
• optical satellites use a mirror to gather visible light for photography;
• infrared and ultraviolet satellites that record imagery in those parts of the spectra;37
• radar imaging satellites use microwave signals to scan the surface of the Earth;38 and
• signals intercept satellites that detect and record radio, telephone and data transmissions on the
Earth and as relayed by communications satellites.39
2. Remote Sensing Use in the War on Terror Operations
During the War on Terror, geospatial surveillance and remote sensing applications by satellite were
heavily utilised by the U.S. and allied armed forces. In 2001, soon after the 11 September terrorist
attacks, the U.S. Department of Defence acquired exclusive rights to the data produced by the
commercial Ikonos satellite to provide imagery in Afghanistan and other theatres and also to improve
situational awareness at all major U.S. military installations. However, this was likely decided upon for
the twin purpose of obtaining the high-resolution remote sensing imagery of Afghanistan while
preventing the Taliban, al-Qaeda, private actors and the worldwide media from being able to acquire
similar quality images that may assist their combat operations against U.S. and allied forces.
The U.S. armed forces have access to governmental remote sensing satellites, the most notable being the
Keyhole (KH) and Lacrosse series of satellites. The KH satellites at their most advanced has a
resolution of around 10-15 centimetres, but cannot see through clouds and do not have “dwell
capability” where the satellites remain in orbit over an area of interest.40 The Lacrosse satellites are
radar imaging satellites that, while having a lower resolution than the KH satellites at one metre, the use
of radar allows it to be used in any kind of weather and in both day and night conditions.
Both the Australian and U.S. military forces are increasingly focused on advances in new technologies
and integration with existing technologies to create synergy between national assets operated by their
respective military establishments. In particular, it was recently reported that the Australian and U.S.
36 Dwayne A. Day, John M. Logsdon and Brian Latell, “CORONA and the Revolution in Mapmaking” in Dwayne A. Day, John
M. Logsdon and Brian Latell (eds.), Eye in the Sky: The Story of the CORONA Spy Satellites (1998) at 200-214; Thomas M.
Lillesand and Ralph W. Kiefer, Remote Sensing and Image Analysis (4th ed., 2000); Jane M. Read and Marla J. Torrado,
Remote Sensing (2009); and Nicholas M. Short, Introduction: Technical and Historical Perspectives of Remote Sensing, at
<http://rst.gsfc.nasa.gov/Intro/Part2_26e.html>, on 1 August 2011.
37 Richard D. Hudson, Jr. and Jacqueline W. Hudson, “The Military Applications of Remote Sensing by Infrared” (1975) 63:1
Proceedings of the IEEE 104.
38 M. van Persie, H. H. S. Noorbergen, A. C. van den Broek and R. J. Dekker, Use of Remote Sensing Imagery for Fast Generation
of Military Maps and Simulator Databases, National Aerospace Laboratory N.L.R., paper NLR-TP-2000-397.
39 Harris, above n. 35.
40 Emily Clark, Military Reconnaissance Satellites, Centre for Defence Information, at
<http://www.cdi.org/terrorism/satellites.cfm>, on 1 August 2011.
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Governments have signed an agreement to share remote sensing imagery data from the Lacrosse radar
satellites.41
Similarly, in Iraq the U.S. and allied armed forces were able to have access to remote sensing imagery
from both KH-11 and Lacrosse satellites.42 However, some commentators question whether it was as
effective as other forms of intelligence gathering operation given the enemies being fought against
increasing non-state actors. Brian Graves, for example, referred to a case study where the use of remote
sensing imagery data was ineffective “due to the use of simply camouflage techniques and the hiding of
forces among the buildings and streets of the urban area”.43 Davies tempers this with a success story
that saw coordination of information that fed into highly successful and accurate air strikes.44 These
types of successes prove the ability of remote sensing imagery to facilitate rapid engagement of targets
using fewer military assets and that:
… this is also a key indicator of the significance of multi-spectral sensors as the
sandstorm would have blinded all other traditional optical reconnaissance methods.
The technology used … is not new, but the manner in which this and future tactical
engagements can be waged through the “fog of war” is indicative of the manner in
which the U.S. military must proceed to maintain the decisive edge.45
D. Global Positioning Systems
The GPS (Global Positioning System) is a satellite-based navigational system involving satellites and
computers that can determine the latitude and longitude of a receiver on Earth by computing the time
difference for signals from different satellites to reach the receiver. The GPS can determine location
regardless of topography, weather or time of day, anywhere on Earth, provided the GPS receiver is not
physically obstructed. The military value of such technology was recognised early in the Cold War by
both the U.S. and the Soviet Union and, consequently, GPS and equivalent systems were deployed and
maintained by both sides.
The military value of GPS in the War on Terror cannot be underestimated. For example, when new
software was installed in the ground control systems for the GPS satellites on 11 January 2010, it was
reported that GPS was rendered inoperable for days for some receivers and affected as many as 10,000
U.S. military receivers on weapons, jet fights, ground forces and naval vessels. 46 This coincided with
reports that U.S. Strategic Command and Air Force Space Command were to reposition the GPS
41 Philip Dorling, “Australia and U.S. Sign Satellite Spy Deal”, The Age, 7 February 2011.
42 Clark, above n. 40.
43 Graves, above n. 34.
44 As above.
45 As above.
46 Dan Elliott, Glitch Highlights U.S. Military Reliance on GPS, MSNBC..com, at
<http://www.msnbc.msn.com/id/37451462/ns/us_news-security/t/glitch-highlights-us-military-reliance-gps/>, on 1
August 2011.
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satellites to improve coverage for military GPS users in Afghanistan and Iraq, as small units of troops
are each given GPS receivers to better pinpoint their geographical location.47
E. Direct Television and Radio Broadcasting
The military uses of communications satellites in direct television and radio broadcasting have not
received much attention, particularly in the War on Terror Operations. Such military uses of the
broadcast of radio and television programming include:
• morale enhancement;
• broadcast of weather and other non-sensitive information;
• propaganda dissemination; and
• operational support.48
Although the military and tactical potential for such uses have been recognised early, particularly in the
context of propaganda dissemination, their use in the War on Terror Operations has been somewhat
restricted by the limited availability of receiving equipment among the local populations of Afghanistan
and Iraq.49
III. OVERVIEW OF RELEVANT LEGAL ISSUES
In order to determine the legal implications arising from the military use of various satellite applications
in the course of the War on Terror, it is prudent to take into account four broad areas of consideration:
(1) the general principles of public international law in relation to military activities, particularly
those contained in the Charter of the United Nations, such as the prohibition on the use of force
under article 2(4) and the right to self-defence under article 51;
(2) the specific application of the general principles of public international law on each of the specific
War on Terror Operations and against terrorism in general;
(3) the general principles of international space law in relation to military activities, particularly
those contained in the multilateral space treaties negotiated under the auspices of the United
Nations; and
47 Inside GNSS, USAF Repositions GPS Constellation to Improve Coverage in Afghanistan and Iraq, at
<http://www.insidegnss.com/node/1839>, 1 August 2011.
48 A. Hale and D. Ballinger, “Military Applications for Digital Audio Radio Service”, in Institute of Electrical and Electronics
Engineers, Aerospace Conference Proceedings: Volume 3 (2002) at 1039-1050.
49 Lt. Col. William J. Wallisch, Jr., “Direct Satellite Broadcasting: You Haven’t Seen Anything Yet!” [1983] 3 Air Uni. Rev. 111;
and Lt. Col. Donald S. Harlacher, “On Direct Satellite Broadcasting” [1983] 9 Air Uni. Rev. 86.
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(4) the specific principles of international space law in relation to the specific satellite applications to
the extent that they are binding and applicable, and any restrictions and prohibitions on military
uses, whether directed against terrorism or otherwise.
These considerations are illustrated and summarised in Figure 1 below.
General Principles of International Law
on Military Activities
Are the Specific
Space Law
Principles Binding?
SPECIFIC MILITARY USE OF A SATELLITE
APPLICATION IN THE WAR ON TERROR
General Principles of Space Law on
Military Uses of Satellite Applications
Specific Principles of Space Law on
the Satellite Application
Specific Application of International Law
on the War on Terror Operations
DETERMINATION
Figure 1. Legal Considerations in the Military Use of Satellite Applications in the War on Terror
IV. SPACE LAW PRINCIPLES ON SATELLITE APPLICATIONS
A. Remote Sensing
1. The Law of Remote Sensing
In response to the need for specific legal rules for remote sensing activities, the General Assembly of the
United Nations adopted the Principles Relating to Remote Sensing of the Earth from Outer Space in
1986 (the “Principles”) to govern the remote sensing activities of States, their nationals and
commercial entities.50 In these Principles, “remote sensing” is defined as activities involving “the
sensing of the Earth’s surface from space by making use of the properties of electromagnetic waves
emitted, reflected or diffracted by the sensed objects”.51
50 See Carl Q. Christol, “Remote Sensing and International Space Law” (1988) 16 J. Space L. 21.
51 Remote Sensing Principles, passim.
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One major concern relating to remote sensing is its potentially detrimental effect on the sovereignty and
the interests of the sensed States. This is especially the case where the States that are subject to the
remote sensing activities of other States have not consented to the activities and have not been
consulted prior to the activities taking place. As a result, the Principles address remote sensing as well as
the data produced, including the processing of the “primary data” and the dissemination of “analysed
information”.52 As with most other international space law instruments, the Principles require States to
“promote international cooperation” by allowing participation of all States on an “equitable and
mutually acceptable terms”.53 Further, the Principles call for the establishment of international
processing facilities for remote sensing data “within the framework of regional agreements and
arrangements whenever feasible”.54 The use of vague phrases such as “whenever feasible” and “mutually
acceptable” have ensured that the terms of the Principles would not be specific enough in its terms to be
overly controversial for the industrialised States while addressing the real or ideological concerns of the
developing States.55
This is not to suggest that the Principles provide no legal obstacles to military satellite reconnaissance
activities. Specifically, Principle I requires remote sensing activities by States to be undertaken to
improve natural resources management, land use and the protection of the environment. This leaves
open the interpretation that remote sensing technologies can only be applied for those limited purposes,
thus prohibiting any military application as well as other civilian purposes.56 Alternatively, a more
creative argument would be to suggest that remote sensing for other purposes are not prohibited but
that they, in fact, fall outside the purview of the Principles and are therefore governed by existing
principles of international law that may relate to such activities.57
In terms of international state responsibility for governmental and private activities, Principle IV of the
Principles require activities not to be conducted in a manner that is detrimental to the legitimate rights
and interests of the sensed State and with due regard of the rights and interests of other States “in
accordance with international law”. In regard to the dissemination of data, the Principles require the
distribution of data should be done on a “non-discriminatory basis” and any supply of data is to be done
on “reasonable cost terms”.58 Specifically, Principle XII states:
As soon as the primary data and the processed data concerning the territory under
its jurisdiction are produced, the sensed State shall have access to them on a non-
discriminatory basis and on reasonable cost terms. The sensed State shall also have
access to the available analysed information concerning the territory under its
jurisdiction in the possession of any State participating in remote sensing activities
52 As above, principle XII.
53 As above, principle V.
54 As above, principle VII.
55 See Stephen Gorove, Developments in Space Law: Issues and Policies (1991), at 293-302.
56 Ricky J. Lee, “Reconciling Space Law for the Commercial Realities of the Twenty-First Century” (2000) 4 Singapore J. Int’l.
Comp. L. 198, at 216.
57 Ram Jakhu, “International Policy and Law-Making Process for Remote Sensing by Satellite” (1997) 22:1 Ann. Air & Space L.
451, 452.
58 Remote Sensing Principles, principle XII.
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on the same basis and terms, taking particularly into account the needs and interests
of the developing countries.
As Ram Jakhu pointed out, there is no definition and no indication as to what is reasonable and what
would constitute a non-discriminatory basis.59 Meanwhile, there is no limitation on the use of the
disseminated data afterwards, which is arguably the stage at which most harm can be done to the sensed
States.
The Principles also require States to ensure that remote sensing activities are conducted in accordance
with the Principles and that the operator complies with the “norms of international law on state
responsibility for remote sensing activities”.60 This is rather ambiguous since there are, at present, no
norms of international law on state responsibility for remote sensing activities. The French text, to
which the Russian version is similar, uses the phrase en ce qui concerne instead of “for”, inferring that the
provision relates to the applicability of the general principles of state responsibility to remote sensing
activities.61 As each of the texts is equally official in status, it is difficult to determine which
interpretation provides the correct operation and approach of the provision.
These views have to be balanced with the specific circumstances in which the Principles were adopted,
along with the terms of the Resolution itself. The Principles resolution was adopted without a vote by
the General Assembly in 1986, as with most other space law principles.62 However, some States
nonetheless expressed serious reservations at some of the terms and provisions of the Principles,
especially on the issue of the need for consent of the sensed States.63 The continuing debate over the
meaning of the terms “discrimination” and the “reasonable basis” for the supply of data lends further
support to the view that the Principles, as a whole, cannot be considered to be evidence of existing
principles of customary international law.
Although the whole of the Principles may not be considered to be the embodiment of customary
international law, this does not prevent some of its provisions of the Principles, especially Principle IV,
from having crystallised into custom. In my view, the fact that the resolution containing the Principles
was adopted by consensus, with most of the reservations being made by States to advocate a further
requirement of consent to the existing obligation of Principle IV, suggests that the requirement of not
undertaking remote sensing activities to the detriment of legitimate rights and interests of sensed States
is one of virtually universal support and therefore has crystallised into customary international law.
Similarly, the lack of express reservations or disputes over the operation and application of Principle XII
may allow such a principle to be asserted to be a binding principle of custom as well.
59 Jakhu, above n 57, at 452.
60 Principles, principle XIV.
61 See Vladimir Kopal, “Principles Relating to Remote Sensing of the Earth From Outer Space: A Significant Outcome of
International Cooperation in the Progressive Development of Space Law” (1987) 30 Proc. Coll. L. Outer Space 322.
62 Resolutions Adopted by the General Assembly at its 41st Session, United Nations Dag Hammarskjöld Library, at
<http://www.un.org/Depts/dhl/res/resa41.htm>, on 21 July 2003.
63 Even though formal consensus was reached, the speeches from various delegations at the final negotiations indicated that
serious differences of opinion remained in the States’ approaches to the issue. U.N.Doc. A/AC.105/SR.290 (1986);
Venezuela (1986) U.N.Doc. A/SPC.41/SR.37 (1986) at 14; Turkey (1986) U.N.Doc. A/SPC.41/SR.38; and Algeria at 7.
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2. Implications on Military Use of Remote Sensing
As discussed above, Article IV of the Outer Space Treaty poses no obstacles to the use of remote sensing
for military purposes, especially when the use of satellite remote sensing is done to further the fulfilment
of the requirements of a Security Council decision under Chapter VII of the Charter. The crucial factor
in practice, therefore, in the determination of the legality of the military use of remote sensing is
whether there is a contravention of Principle XII, assuming it has crystallised into customary law.
In an armed conflict, the sensing State is highly unlikely to make available any data collected from the
remote sensing operation to the sensed State on a non-discriminatory basis and on reasonable cost
terms. Therefore, this produces a prima facie breach of Principle XII of the Principles, which does not
provide any exceptions in its application, unless there is a resolution of the Security Council authorising
the denial of the remote sensing data to the sensed target State, even if it was merely through the
reference to the use of “any means necessary” or phrases with like effect. This is because the obligations
arising under the Charter would override any obligation imposed in customary international law
(though not by the operation of Article 103 as it only applies to conflicts with treaties) unless it has
attained the status of jus cogens.
B. Satellite Communications
In addition to the Outer Space Treaty and other general space law instruments, satellite
telecommunications is mainly regulated by the International Telecommunication Union (the “ITU”)
and its Member States are bound by the terms of its Constitution and Convention. There are two main
reasons for the need for international regulation of satellite telecommunications. Firstly, the use of
radio frequencies is a finite resource that must be centrally allocated at an international level in order to
prevent interference by different States utilising the same or similar frequencies for their services.
Secondly, with the advent of satellite telecommunications, it was recognised early that the use of the
geostationary orbit would have to be controlled. Article 44 of the ITU Constitution and Convention
states that:
1. Members [States] shall endeavour to limit the number of frequencies and the
spectrum used to the minimum essential to provide in a satisfactory manner
the necessary services. To that end, they shall endeavour to apply the latest
technical advances as soon as possible.
2. In using frequency bands for radio services, Member States shall bear in mind
that radio frequencies and any associated orbits, including the geostationary
satellite orbit, are limited natural resources and that they must be used
rationally, efficiently and economically, in conformity with the provisions of
the Radio Regulations, so that countries or groups of countries may have
equitable access to those orbits and frequencies, taking into account the
special needs of the developing countries and the geographical situation of
particular countries.
In addition to general regulatory provisions, the ITU Constitution and Convention also sets out several
principles in relation to the conduct of satellite telecommunications. For example, telecommunications
devices cannot be established or operated in such a manner that causes harmful interference to the
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radio communications or services of other States.64 The term “harmful interference” is defined in the
Annex of the ITU Constitution as “interference which endangers the functioning of a radionavigation
service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a
radiocommunications service operating in accordance with the Radio Regulations”.
More relevant to the issue of military use is Article 48, which provides:
1. Member States retain their entire freedom with regard to military radio
installations.
2. Nevertheless, these installations must, so far as possible, observe statutory
provisions relative to giving assistance in case of distress and to the measures
to be taken to prevent harmful interference, and the provisions of the
Administrative Regulations concerning the type of emission and the
frequencies to be used, according to the nature of the service performed by
such installations.65
3. Moreover, when these installations take part in the service of public
correspondence or other services governed by the Administrative
Regulations, they must, in general, comply with the regulatory provisions for
the conduct of such services.
It is clear that the “entire freedom” referred to in the first paragraph of Article 48 means that any
military use of radio communications would be subject only to the obligations set out in the second
paragraph of Article 48. This is an implicit endorsement of the view that Article IV of the Outer Space
Treaty does not amount to a broad requirement for outer space to be used for peaceful purposes only, as
such a broad interpretation would clearly eliminate any existing “freedom” concerning military radio
installations.
Specific to the issue of military radio installations and the prohibition on harmful interference in the
ITU Constitution and Convention is the effect of any Security Council decisions under Article 41 of the
Charter. As discussed above, Article 103 would allow a binding decision of the Security Council to
override the provisions of subsequent treaties. Therefore, the deliberate termination and harmful
interference with the satellite communications of the target States as required by a Security Council
resolution would override the operation of the ITU Constitution and Convention.
V. CONCLUSIONS
The use of satellite applications has become an integral part of the contemporary conduct of military
operations, from the low-bandwidth uses of GPS, voice communications, signals intercepts and low-
resolution radar remote sensing imagery to high-bandwidth uses of live video streaming, direct media
broadcasting and high-resolution optical remote sensing imagery. This is particularly notable in the
64 ITU Constitution and Convention, art. 45.
65 As above, article 45 (the harmful interference provision) and article 46 (the distress provision).
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War on Terror Operations, where ground communications infrastructure may be unavailable (as in the
case of Afghanistan) or unsecured (as in the case of Iraq). The present race by the U.S. Government to
acquire additional satellite capacity to fulfil its insatiable demand for bandwidth is a clear sign of the
need to command available space assets in the conduct of modern military operations.
It is apparent that the existing body of international law, despite the policy pronouncements of
reserving outer space sensu lato exclusively for peaceful uses and purposes, does not in fact prohibit the
use of satellite applications for military purposes, regardless of the lawfulness of the underlying military
activities making use of the satellite applications.
With the international community unlikely to agree to any legal prohibition on military uses of satellite
applications per se, the question that needs to be resolved in the reasonably near future is the question of
whether certain restrictions ought to be imposed on the military use of satellite applications. In
particular, the military use of satellite remote sensing and direct radio and television broadcasting
services and their interference or jamming by states and private actors ought to be subjected to some
international legal restrictions.