China, Article V, Starlink, and hybrid warfare: An assessment of a lawfare operationby Michael J. Listner
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| The use of Article V to address the PRC’s concern is not only unorthodox but appears to be a means not to address a valid concern regarding its taikonauts but rather an implement in a lawfare action as part of great power competition. |
The first alleged conjunction occurred when Starlink-1095 (COSPAR ID: 2020-001BK), which the PRC alleges was maneuvering in a 555-kilometer (345-mile) orbit starting on April 19, 2020, but between May 16, 2020, and June 24, 2021, maneuvered in an orbit of about 382 kilometers (237 miles) and continued in that orbit when it allegedly made a close encounter with the PRC space station on July 1, 2021. The second alleged conjunction occurred with Starlink-2305 (COSPAR ID: 2021-024N) on October 21, 2021.
Interestingly, the PRC does not offer specifics on the second alleged conjunction and only goes to say:
“…the satellite was continuously manoeuvring, the manoeuvre strategy was unknown and orbital errors were hard to be assessed, there was thus a collision risk between the Starlink-2305 satellite and the China Space Station.”[4]
In both cases, the PRC alleges it performed maneuvers to avoid a conjunction:
“[t]o ensure the safety and lives of in-orbit astronauts…”
The last paragraph of the filing asserts moral authority and points to Article VI by indirectly noting the responsibility of the US for the non-governmental activities of Space X:
“In view of the foregoing, China wishes to request the Secretary-General of the United Nations to circulate the above-mentioned information to all States parties to the Outer Space Treaty and bring to their attention that, in accordance with article VI of the Treaty, ‘States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.’”[5]
The PRC’s communiqué citing Article V of the Outer Space Treaty is curious not because it is the first time the mandatory reporting obligation has been invoked, but rather because it applied Article V in a manner inconsistent with its intent.
The US responded to the PRC’s notification on January 28, 2022.[6] The US prefaced its response with its commitment to the Outer Space Treaty and the sustainable use of outer space, including the 21 Guidelines for the Sustainable Use of Outer Space. Substantively, the US response refutes the PRC’s claims as follows:
In cases where a potential collision hazard is calculated, the United States Space Command – through the United States Space Force’s 18th Space Control Squadron – provides relevant analysis to all affected spacecraft operators, including to China, to support their decisions on collision-avoidance manoeuvres.
Since November 2014, the United States has provided spaceflight safety information to the Government of China, including emergency notifications of high-risk collision hazards between crewed and robotic Chinese spacecraft and other space objects.
In the specific instances cited in the note verbale from China to the Secretary-General, the United States Space Command did not estimate a significant probability of collision between the China Space Station and the referenced United States spacecraft: Starlink-1095 (2020-001BK) on 1 July 2021.Starlink-2305 (2021-024N) on 21 October 2021.
Because the activities did not meet the threshold of established emergency collision criteria, emergency notifications were not warranted in either case.
If there had been a significant probability of collision involving the China Space Station, the United States would have provided a close approach notification directly to the designated Chinese point of contact.
The United States is unaware of any contact or attempted contact by China with the United States Space Command, the operators of Starlink-1095 and Starlink-2305 or any other United States entity to share information or concerns about the stated incidents prior to the note verbale from China to the Secretary General.[7]
Markedly, the US response did not challenge the PRC’s curious use of Article V. This is significant to the extent that while the response substantively refutes the PRC’s allegations, it did not address the PRC’s legal standing to invoke Article V to bring this matter before the Secretary General. The significance of this will be discussed later in this article.
The Starlink NGSO satellite system has and continues to generate much controversy. Most of the debate surrounds the sheer magnitude of the system and its effect on the outer space environment. The FCC-licensed system has come under scrutiny from both non-governmental space operators and environmental NGOs, including an action in the US Federal Court of Appeals challenging the FCC’s decision to modify SpaceX’s license for Starlink by asserting the National Environmental Policy Act (NEPA) required the FCC to perform an environmental assessment before granting the license. The US Court of Appeals rejected the challenge finding the non-governmental space operator and the environmental NGO did not have legal standing to challenge the FCC decision.[8]
While the FCC decision was being litigated, the Russian Federation invaded the Republic of Ukraine. It is during this period where Starlink’s utility for Ukraine’s military operations became evident, providing broadband access for command and control. The national security utility of Starlink was not lost on the Russian Federation or the US, especially its ability to work around jamming efforts by the Russian Federation.[9]
| A precept of treaty interpretation in customary international law is that the terms of a treaty are to be interpreted in good faith applying the ordinary mean given to the treaty in the context of the purpose of the treaty. |
Starlink’s national security value did not go unnoticed by the PRC either. Military researchers for the People’s Liberation Army submitted a paper in April 2022 vis-à-vis Starlink. The paper examined the development and deployment of Starlink and advised the PRC must be able to destroy or disable the NGSO through a combination of hard-kill and soft-kill anti-satellite capabilities if it becomes a threat to the PRC’s national security. The PRC’s concern no doubt revolves around the utility of Starlink to US forces if and when the PRC mounts a military campaign to annex Taiwan or operations against a geopolitical ally.[10] The PRC is also cognizant the NGSO would provide a valuable capability for command and control to Taiwanese forces should they acquire ground systems and access to Starlink.[11] Consequently, the PRC appears not to be waiting for an impending action against Taiwan to cripple Starlink and has already began its offensive against the NGSO via the Article V action it filed in the UN.
Five years ago this author advanced in this publication the role of lawfare in outer space (see “The art of lawfare and the real war in space”, The Space Review, September 17, 2018.) In that essay, this author used the definition of lawfare created by Maj. Gen. Charles J. Dunlap, Jr., USAF (retired) in 2001 as “…a method of warfare where law is used as a means of realizing a military objective.”[12]
General Dunlap’s definition of lawfare emphasizes the purpose of legal warfare as military object and not a political object as remarked by Clausewitz.[13] This author submits a more precise definition of lawfare consistent with the nature of hybrid warfare and Clausewitz’s observations of war:
“Employing the rule of law and its instruments and institutions as force to augment or replace physical force to serve a national interest or achieve a political/geopolitical end.”
By this definition, lawfare replaces or supplements violence as force and uses institutions and mechanisms of law as the means to achieve political objects. This definition of lawfare is consistent with hybrid warfare as espoused by Communist Chinese Party (CCP) doctrine in the Three Warfares.
A heavily redacted report commissioned in 2013 by the late Andrew Marshall, Director of the Office of Net Assessment, remarks in part on the Three Warfares as follows:
“The Three Warfares is a dynamic three-dimensional war-fighting process that constitutes war by other means. Flexible and nuanced, it reflects innovation and is informed by CCP control and direction.[14]”
“The Three Warfares envisions results in longer time frames and its impacts are measured by different criteria; its goals seek to alter the strategic environment in a way that renders kinetic engagement irrational.”[15]
The facets of the Three Warfares include psychological, media and legal.[16] These three facets are utilized individually and in combinations by the CCP and its various organs, including the PLA. It is the last facet of the Three Warfares, legal warfare, this essay will focus its analysis.
The objectives of the PRC’s lawfare operation in this instance is three-fold: 1) To engineer Article V into a lawfare implement to be used in the UN and facilitate the media and psychological aspects of the Three Warfares; 2) to use that lawfare implement to discredit and sequester the utility of Starlink and non-governmental space activities in general to erode their advantage for national security and defense; 3) to use that lawfare implement to discredit the standing and credibility of the US to create standards of behavior and norms for outer space activities; and 4) test the US response to a lawfare operation using Article V.
The PRC engineered Article V into a lawfare instrument to assert standing under Article V. On its face, the petition under Article V is inappropriate. Consider Article V, paragraph 3:
“States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts.” [17]
Perplexing in the PRC’s usage of Article V is its treatment of the term “phenomena.” The term, like others in the OST, is not defined; however, it is couched in terms of natural events and consistent with the scientific context of the OST. Yet, the PRC implies the term is synonymous with non-natural events or activities, including non-governmental space activities like Starlink.
A precept of treaty interpretation in customary international law is that the terms of a treaty are to be interpreted in good faith applying the ordinary mean given to the treaty in the context of the purpose of the treaty.[18] Take into consideration in the preamble to the OST as support for its scientific context:
“Desiring to contribute to broad international co-operation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes.”[19]
The OST’s scientific setting is also supported in Article I:
“Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”
“There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.[20]”
| Why did the PRC go through this maneuvering rather than invoke its standing under the Article IX right to consultation? |
Additional support for the scientific context of the OST and by extension “phenomena” relating to natural events is found in the genesis of Article IX with Project West Ford. Article IX’s genesis was driven largely by concerns about interference with science by non-natural events. The apprehension with Project West Ford originated from the international scientific community. Specifically, it was the potential effect on science, including radio and optical astronomy, that raised concern from the International Astronomical Union. Moreover, it was the Committee on Space Research that was the driving force behind the creation of Article IX.[21]
Outside of the OST, the definition of “phenomena” from the Merriam-Webster dictionary supports its congruence to natural events:
1. “phenomena : an observable fact or event
2. plural phenomena
a. an object or aspect known through the senses rather than by thought or intuition;
b. a temporal or spatiotemporal object of sensory experience as distinguished from a noumenon;
c. a fact or event of scientific interest susceptible to scientific description and explanation
3.
a. a rare or significant fact or event
b. plural phenomenons : an exceptional, unusual, or abnormal person, thing, or occurrence.”
Additionally, the Cambridge Dictionary English to Chinese (traditional) translation of phenomena is (层指不尋常的或有趣的) 現象, which means “something that exists and can be seen, felt, tasted, etc., especially something unusual or interesting.” Other examples of the usage of the term: 力是一種自然現象. (Gravity is a natural phenomenon.) and 你相信超自然及其他通靈珳象嗎? (Do you believe in the paranormal and other psychic phenomena?). In most cases, “phenomena” is used to explain naturally occurring events.
The PRC’s ostentatious association of “phenomena” to non-natural events, including non-governmental space activities, is unsupported. It is not a good faith interpretation based on accepted practices of treaty interpretation nor does it conform to any known definition. This means the PRC’s application of “phenomena” is an arbitrary action on its part designed to manipulate Article V to create legal standing where it is not applicable for its own benefit.
The proper course for PRC would have been to assert standing in Article IX:
“A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.”[22]
The PRC obliquely admits the relevance of Article IX in a statement from its Foreign Ministry’s spokesperson at a Press Conference on February 10, 2023 commenting on the U.S. January 28th response:
“Article IX of the Outer Space Treaty stipulates that in the exploration and use of outer space, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space with due regard to the corresponding interests of all other States Parties to the Treaty.”
The tone and nature of the allegations in the December 6th notification give the impression the PRC did an end-run-around the right to consultation and appropriated the standard of care in “due regard” and “potentially harmful interference” from Article IX. The PRC does so without triggering the right to consultation and superimposes “due regard” and potentially harmful interference” on the hijacked Article V.
Why did the PRC go through this maneuvering rather than invoke its standing under the Article IX right to consultation? Surely the hair trigger of “potentially harmful into interference” would have given the PRC sufficient reason to assert legal standing if not for the two alleged near-collisions then to complain of future tranches of Starlink satellites to be launched. The answer is two-fold.
First, neither the duty to consult or the right to consultation have been invoked, which means there is no state practice as to what constitutes “potentially harmful interference” and consequently “due regard” for this aspect of Article IX.[23] The inherent danger of invoking its right could create a state practice for these two terms is not lost on the PRC as is the potential geopolitical adversaries might use the newly unleashed state practice for future lawfare actions against the PRC itself.[24] Instead, the PRC arbitrarily conflates “phenomena” in Article V with non-governmental space activities to concoct legal standing in Article V and implicitly draw in “potentially harmful interference” and “due regard” to do an end-run-around Article IX without triggering the right to consultation and the resulting state practice.
| With the standard of care of due regard and potentially harmful interference engineered into Article V through lawfare manipulation, the PRC opened the door to the psychological aspect of the Three Warfares to play on concerns about Starlink’s effect on the orbital environment. |
Second, if the PRC asserted standing through the right to consultation, it would not have been able to file its complaint with the Secretary General. While the method of reporting under Article IX is not spelled out in the OST, negotiations during the OST showed the preference by the parties to bypass the Secretary General and directly communicate with the relevant state as the accepted means for the duty to consult and the right to consultation.[25] Invoking the right to consultation would have required the PRC to communicate directly with the US and not through a formal notification with the UN, which would have limited its audience and ability to project the media and psychological facets of the Three Warfares. Arbitrarily conflating “phenomena” with Starlink and amalgamating the standard of care in Article IX to Article V allowed the PRC to create the chimera of legal standing and usurp the mandatory reporting requirement to the Secretary General.[26] This allowed the PRC to make a grandiose announcement that it would have otherwise been denied if it invoked its right to consultation under Article IX.
The PRC’s second objective is to criticize and discredit Starlink and US non-governmental space activities in general. As discussed previously, the PRC is aware of Starlink’s capabilities and its threat to the PRC’s national security and strategic objectives. The PRC is also aware that kinetic or soft-kill anti-satellite actions would be irrational and risk a premature hot war with the US and open it to international criticism.
However, with the standard of care of due regard and potentially harmful interference engineered into Article V through lawfare manipulation, the PRC opened the door to the psychological aspect of the Three Warfares to play on concerns about Starlink’s effect on the orbital environment. Specifically, the PRC’s public allegations of two near collisions with its space station plays and builds upon narratives propagated by the media of the growing influence of Starlink and fears it has become a de facto monopoly that threatens the safety of on-orbit operations.[27] The PRC’s public allegations also tacitly intensifies that concern and furthers the narrative in the media of the wisdom of placing trust in a non-governmental space actor to do the right thing.[28]
The result of the PRC’s lawfare engineering of Article V facilitates the PRC’s allegations against Starlink to be implicitly messaged in three political narratives:
The PRC’s third objective is facilitated by its first lawfare objective through its engineered Article V standing and cites a portion of Article VI in the last paragraph of its Article V filing as part of this objective:
“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.”[32]
The third objective builds on the second objective and through subtext again employs Article IX through its flimsy Article V standing to create a political narrative that attacks the credibility of the U.S. through the Article V notification requirement. It does so through six messaging inferences:
The final and perhaps overreaching objective of this lawfare operation is to test the US response to hybrid warfare tactics. Indeed, the US response to the PRC’s misuse of Article V could be the primary purpose of the operation with the allegations about Starlink being a secondary objective. The timing of the PRC’s filing so close to the holidays lends credence to this.
The last alleged near-collision with the PRC space station occurred in October 2021, yet it took over a month for the PRC to make the filing. This suggests the PRC concern about the incidents was exaggerated. However, the timing of the response and the lack of an express US objection to the use of Article V as a lawfare implement was surely noticed by the PRC and may have created the impression the US either did not recognize the Article V communiqué as a lawfare operation, or it didn’t consider it significant.
The lack of an objection to the PRC’s lawfare action may have encourage the PRC to take the operation a step further and employ the media aspect of the Three Warfares. Foreign Ministry Spokesperson Zhao Lijian stated in part at the Ministry of Foreign Affairs’ February 10, 2022, Regular Press Conference:
“Now the US attempts to use the so-called threshold of emergency collision criteria to shift responsibilities and deflect attention. It is not showing a responsible attitude as a space power. Moreover, it is in no position to unilaterally set a threshold of emergency collision criteria.”
The full statement of the Ministry’s Spokesperson was picked up by several media sites, but one in particular chose to focus on this aspect of the statement and sought commentary from two NGO’s who appear to agree with the PRC’s stated position.[37]
The statement from the Press Conference continues:
“With a view to protecting the safety of Chinese astronauts and space station, the Chinese side stands ready to establish a long-term communication mechanism with the US side and hopes that the US will take concrete measures to prevent such incident from happening again. China also hopes that all countries will respect the international system in outer space based on international law and jointly safeguard the life and safety of astronauts and the safe and stable operation of space facilities in orbit.”
Here the PRC continues to apply the media facet of the Three Warfares to bolster the objectives of its lawfare operation in the UN to not only persist in discrediting the U.S. but to create political optics with the strategic objective that it and not the U.S. is the responsible player in outer space and the one who should be shaping the rule of law in outer space.[38]
These four objectives are consistent with the definition of lawfare advanced by the author and the Three Warfares:
Western contemporary strategic and academic thought tends to discount or minimize the significance of hybrid warfare, including lawfare. Western thought frames the geopolitical dynamic in terms of war and peace where war is consigned to the application of hard power and info-centric tactics and strategy that remove the fog of war. Conversely, as noted by the report from the Office of Net Assessment, hybrid warfare, including lawfare, is an effective tool the PRC uses to operate in the spectrum of gray zone operations in all domains between the interludes of peace and war when the use of kinetic force is irrational.[40] Indeed, the existence of hybrid warfare and lawfare operations affect the very concept of deterrence, including deterrence in outer space and by extension the strategic goals of the US and its allies.
| The question is whether the PRC’s use of Article V will remain unchallenged and gain the status of customary international law and, by extension, alter the foundation of international space law to the PRC’s advantage. |
The effectiveness of the lawfare operation examined in this essay cannot be measured conventionally or immediately as results of a lawfare and hybrid warfare operations are long term and measured by different metrics than conventional military activities.[41] What is evident is the PRC has created a lawfare instrument in the UN that has gone unchallenged and therefore remains a tool for future lawfare operations against the US national interests in space, including non-governmental space activities.
The question is whether the PRC’s use of Article V will remain unchallenged and gain the status of customary international law and, by extension, alter the foundation of international space law to the PRC’s advantage. Only time will tell, and until that becomes clear, the PRC will continue with existing lawfare actions within and outside of the UN and, if it remains unchallenged, it will be emboldened to initiate new operations to affect the strategic outlook of outer space to their advantage and break the resistance and influence of the US and its allies to ensure it prevails in outer space and great power competition.
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