Does the Dual-Use of Space Objects Necessitate a New Geneva Convention?

Case Western Reserve Journal of International Law Volume 57 Issue 1 Article 22 2025 Does the Dual-Use of Space Objects Necessitate a New Geneva Convention? Svenja Berrang, LL.M. Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons, Military, War, and Peace Commons, and the Science and Technology Law Commons Recommended Citation Svenja Berrang, LL.M., Does the Dual-Use of Space Objects Necessitate a New Geneva Convention?, 57 Case W. Res. J. Int'l L. 315 (2025) Available at: https://scholarlycommons.law.case.edu/jil/vol57/iss1/22 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Journal of International Law Vol. 57 (2025) Does the Dual-Use of Space Objects Necessitate a New Geneva Convention? Svenja Berrang, LL.M. (Lancaster) * Abstract With “the first commercial space war” in Ukraine, the widespread and ever-increasing practice of using commercial space systems and services for military activities came to the public eye. States increasingly rely on and integrate commercial space activities1 into military activities to enhance their military capabilities and to strengthen deterrence. But by incorporating commercial actors into their military activities, States may incidentally make civil actors become military targets during an international armed conflict. Eventually, this may endanger commercial employees when those employees take direct part in hostilities and ultimately lose their protection as non-targeted civilians. This Article examines the increased reliance of militaries around the world on commercial space assets by establishing if and under what criteria such dual-use systems can become lawful military targets as well as under what criteria commercial space operators could lose their protection under international humanitarian law. Eventually, this Article will demonstrate that the existing rules of international humanitarian law adequately address these dual use systems and their operators, rendering the call for a new Geneva Convention specifically for the space domain unnecessary. * Svenja Berrang is a desk officer at the Legal Department of the German Ministry of Defence, responsible for questions regarding operational law, especially with regards to space operations and new technologies. The views expressed in this Article are those of the author and do not reflect the official policy or position of the Government of the Federal Republic of Germany or of the German Federal Ministry of Defence. The author has used only information available to the public in the research and presentation of this article. 1. For the purpose of this Article, “commercial space activity” will be defined as a space activity for the purpose of generating revenue or profit. 315 Case Western Reserve Journal of International Law Vol. 57 (2025) Does the Dual-Use of Space Objects Necessitate a New Geneva Convention? I. II. Introduction ........................................................... 316 Outer Space, International Armed Conflict, and the Applicability of International Humanitarian Law .................................................. 320 A. The Peaceful Use of Outer Space ................................. 320 B. Applicability of International Humanitarian Law ........... 321 C. What Constitutes an “Attack” in the Space Domain? ..... 323 III. Commercial Space System Companies’ Direct Participation in Hostilities ........................ 325 A. Civilians Operating Military Space Systems .................. 325 B. Definition .................................................................. 326 C. Civil and commercial space operators ........................... 328 1. Direct Participation in Hostilities .............................. 328 2. Repeated Acts of Direct Participation in Hostilities .. 330 IV. Dual-Use Space Systems ......................................... 331 A. State Practice............................................................. 331 B. Commercial Space Systems as military objectives .......... 332 C. Targeting Commercial Space Objects............................ 335 1. Proportionality ........................................................... 335 2. Precautions in Attack ................................................ 337 D. Passive Precautions .................................................... 338 V. Conclusion .............................................................. 341 I. Introduction Multiple societal sectors benefit from the achievements in outer space, from banking, to transport, to weather monitoring, to science and communications, and to the environment and agriculture. It is an integral part of our way of life.2 The use of outer space has brought great advantages to our security, as it has greatly improved our capabilities to predict threats, to respond rapidly, precisely and effectively to crises, and to enhance overall transparency.3 Services based in space, such as satellite communications, positioning, navigation and timing, 2. EXEC. OFF. OF THE PRESIDENT, UNITED STATES SPACE PRIORITIES FRAMEWORK 3 (2021), https://www.whitehouse.gov/wp-content/ uploads/2021/12/united-states-space-priorities-framework-_december-1-2021.pdf. 3. NATO’s Overarching Space Policy, N. ATL. TREATY ORG., https://www.nato.int/cps/en/natohq/official_texts_190862.htm [https://perma.cc/6DA9-B434] (May 30, 2024, 10:20 AM). 316 Case Western Reserve Journal of International Law Vol. 57 (2025) Does the Dual-Use of Space Objects Necessitate a New Geneva Convention? reconnaissance, and early warning systems, are vital for evaluating and addressing risks and threats to national security, managing crises, and supporting military operations.4 Space technology as well as space based services have become and will become even more readily accessible, available, and cheaper for all states, resulting in outer space becoming increasingly contested and congested.5 The freedom of action in outer space for all states depends on safe, secure, and autonomous access to the space domain.6 With their increasing relevance for civil and military activities as well as their inherent high vulnerability, space assets of any kind are increasingly at risk to becoming targets in future conflicts.7 Threats to space systems, real or perceived, carry an inherent risk of misunderstanding and unintended escalation. Increasing dependency on space systems and services raises the specter of irresponsible and hostile behavior, space-related threats, and the weaponization of space by strategic competitors.8 In line with the current strategic environment, outer space is an area where security challenges have ind (...truncated)