STATE RESPONSIBILITY FOR NON-STATE ACTORS IN TIMES OF WAR: ARTICLE VI OF THE OUTER SPACE TREATY AND THE LAW OF NEUTRALITY.

• Author: Gutzman, Jimmy

1. INTRODUCTION II. STATE RESPONSIBILITY FOR NON-STATE ACTORS UNDER GENERAL INTERNATIONAL LAW AND INTERNATIONAL SPACE LAW A. State Responsibility Under General International Law B. State Responsibility Under International Space Law 1. State Responsibility for Non-State Actors in the Outer Space Treaty 2. State Responsibility for Non-State Actors in the Liability Convention 3. State Responsibility for Non-State Actors in the Registration Convention C. Interaction Between General International Law and International Space Law III. THE LAW OF NEUTRALITY A. What is the Law of Neutrality? B. Historical Overview of the Law of Neutrality through the U.N. Charter 1. The Law of Neutrality Under Hague (V) 2. The Law of Neutrality Under Hague (XIII) 3. The Law of Neutrality During World War II C. Law of Neutrality After Adoption of the U.N. Charter IV. NON-STATE ACTORS IN SPACE A. History of Non-State Actors in Space Through the 1980s 1. Telecommunications Satellites 2. Remote Sensing Satellites B. Non-State Space Actors 1980s to Present 1. Telecommunications Satellites 2. Remote Sensing Satellites C. Iterations and Intricacies of Present Day Non-State Actors in Space D. Conclusion V. PRESENT-DAY INTERACTION BETWEEN STATES AND NON-STATE ACTORS A. States Represent Non-State Actors Internationally B. Licensing of Non-State Actors 1. Telecommunications Satellites 2. Remote Sensing Satellites C. State Use of Non-State Actors' Space Assets 1. State as Customer 2. Hosted Payloads D. Conclusion VI. ANALYSIS OF LAW OF NEUTRALITY VIS-A-VIS NON-STATE ACTORS IN SPACE A. The Case of Intelsat-22 1. Australia Attacks and Declares War on State A 2. State A Attacks and Declares War on Australia B. The Case of DigitalGlobe: 1. United States Implications for DigitalGlobe Providing Military Intelligence 2. DigitalGlobe's Sale to a Foreign Corporation a. Implications of Two States Having International Responsibility for One Company b. Possible Interpretations of Article VI of the OST VII. CONCLUSION I. INTRODUCTION

   Article VI of the Outer Space Treaty provides that States are responsible for all actions of their non-State actors. (1) This article argues that there should be a higher threshold than the plain text of Article VI of the Outer Space Treaty would indicate for States to be declared belligerents if their non-State actors provide space-based services to a State at war.

   In space, all non-State actions are attributed to the State that licenses and oversees them. (2) Modern corporate structures, mergers, and buyouts can create situations where multiple States could be considered responsible for a single non-State space endeavor.

   Under general international law, the conduct of a private person or corporation typically must have some connection to the State if the conduct is to be attributed to that State. (3) Under the law of neutrality, States maintain certain rights when two other States (belligerents) are at war so long as the neutral State does not take State action in favor of either of the belligerent States. Combining these two premises, a neutral State is not usually at risk of losing its neutral status and being declared a belligerent if a corporation or person of that state provides some service to a belligerent state, so long as that person or corporation is not acting on behalf of the neutral State. (4)

   In international space law, however, all private actions are attributed to the State. Article VI of the Outer Space Treaty provides that States are responsible "whether such activities are carried on by governmental agencies or by non-governmental entities." (5) A private corporation that provides space-based services to a belligerent State does not just risk its own assets and personnel; it also risks having its sponsoring state declared a belligerent.

   This State responsibility requirement worked well for the first forty-plus years of non-State activities in space. More recently, however, non-State actors in space are increasingly both more common and more complex. For example, in 2012, Intelsat, LLC, a U.S. company wholly owned by Intelsat Global, SA, a Luxembourg company, launched Intelsat-22, a geosynchronous telecommunications satellite, into orbit. The Australian Defense Forces contracted to put an ultra-high frequency (UHF) communications payload on this satellite for the purpose of military communications. (6) The overall satellite was licensed and registered by the United States, but the payload was licensed by Australia. (7) Intelsat-22 was launched from Baiknonur Cosmodrome, Kazakhstan, by International Launch Services (ILS), a U.S. corporation majority-owned by the Khrunichev State Research and Space Production Center of Moscow, Russia. (8) Which State or States would be internationally responsible for the UHF payload if Australia were to go to war?

   Another recent example occurred in 2017 when MacDonald, Detwiler, and Associates (MDA), a Canadian company that owns and operates its own remote sensing satellite, purchased DigitalGlobe, (9) a U.S. company that owns and operates a constellation of five remote sensing satellites. MDA indicated that it would set up a U.S. subsidiary to own and operate the five recently acquired satellites. Which State or States would be internationally responsible for the five-satellite constellation if the company provides military intelligence to a belligerent?

   The first section of this article provides an overview of general international law and international space law in relation to States' responsibility for non-State actors to explain how attribution is different in space than in general international law. The second section explores the law of neutrality and how certain actions, like providing telecommunications to a belligerent, could violate the law of neutrality. The third section looks at the history of non-State actors in space and their recent rapid expansion, with a focus on the fluidity of space corporations and international conglomerates. The fourth section explores the present-day interaction between States and non-State actors, including how States license and utilize non-State actors' capabilities. The fifth and final section brings together the previous four. It presents an analysis of which State or States should be held responsible and what could or should happen to a State's neutrality when one of its non-state actors provides space services to a belligerent. This article accomplishes this through case studies of Intelsat and DigitalGlobe.

   Though the types of space applications and the number of State and non-State actors have expanded exponentially in recent years, this article focuses primarily on U.S. endeavors, laws, and regulations related to telecommunications and remote sensing. This is not because other States do not have robust space programs overseeing non-State actors, but rather because both of the recent satellite transactions that have major law of neutrality implications (the Intelsat hosted payload and the sale of DigitalGlobe) are satellites licensed by the United States.

2. STATE RESPONSIBILITY FOR NON-STATE ACTORS UNDER GENERAL INTERNATIONAL LAW AND INTERNATIONAL SPACE LAW

   This section outlines the differences between general international law and international space law to explain the intricacies of responsibility, liability, and jurisdiction in space law and to show how the existing treaties and norms of space law appear to allow for more than one State to be responsible for a single non-State actor's action. This section lays the groundwork for the later analysis of which law takes precedence if there were a conflict between general international law and space law. It addresses three issues important for this article: (1) Whether at least one State is internationally responsible for all non-State actors' actions in outer space; (2) Whether more than one State could be responsible for the actions of a non-State actor in outer space; and (3) Whether space law trumps general international law if there were a conflict of laws between general international law and international space law regarding an outer space endeavor.

   1. State Responsibility Under General International Law

      In international law, a State is responsible for its internationally wrongful acts. (10) For an act to be internationally wrongful, a State must have failed to comply with its international responsibility. That is, if a state has violated, by either an act or omission, some type of obligation, be it a treaty (11) or agreement or some other aspect of international law, the State is responsible. (12) The violating State is responsible to other States who are party to the treaty, agreement, or other aspect of international law the first State violated. (13) Most important for this discussion, for a State to be responsible, the internationally wrongful action must be attributable to the State. (14)

      Under general international law, a State is internationally responsible when it, through one of its agencies or officials, takes some action. (15) This type of responsibility is called direct responsibility. (16) States are typically not responsible for actions of their non-State actors under general international law unless the non-State actor was acting on behalf of the State. (17) Therefore, the conduct of purely private persons or private corporations is not generally attributable to the State. There must be some nexus between the internationally wrongful act and the State to which the act is attributed, and private individuals or corporations acting on their own behalf cannot commit internationally wrongful acts on behalf of their State. (18)

      There are two major exceptions to a State's not being held responsible for its non-State actor's actions in general international law: when a State has indirect responsibility, and when a State makes provisions to accept responsibility for its non-State actors. Indirect State responsibility refers to a State's obligation "to...