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Public International Law/International Law in Cyberspace

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A. Introduction
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The application of international law to cyberspace is one of the great challenges international law faces in the 21st century. By the second decade of the 21st century, cyber operations have become increasingly common in inter-state relations. Whether in the form of cyber espionage or election interference, inter-state cyber operations are nowadays normalised. Although the application of international law to cyberspace was originally contested, it is nowadays widely agreed upon and has been confirmed by individual states, UN working groups and scholarship. While such consensus is a laudable first step, it is at the same time an agreement that is minimal at best. Since then, the conversation has moved on to the decisive question of how exactly international law applies to cyberspace.

This chapter provides a first overview of the discourse on how international law applies to cyberspace. To this end, the chapter introduces a range of areas of international law that are relevant for the regulation of cyberspace and inter-state cyber operations. These areas are by no means an exhaustive list, nor is each topic dealt with in depth. Instead, introducing this range of areas of international law demonstrates how complex and wide-ranging the question of how international law applies to cyberspace is. This chapter will address topics such as international law-making and actors in cyberspace and the application of general principles of international law to cyberspace, including the prohibition of the use of force, the principles of sovereignty, and non-intervention. Furthermore, it covers aspects such as jurisdiction in cyberspace and state responsibility. Finally, the chapter addresses the application of international humanitarian law as well as human rights law to cyberspace.

B. International Law-Making and Actors in Cyberspace
To understand how international law applies to cyberspace, it makes sense to briefly consider relevant parties involved in determining such application and in contributing to the discussion. Firstly, states remain the primary lawmakers of international law. This also holds up in a cyber context where states primarily contribute to the discourse via state statements, setting out their specific interpretation of how the application of international law can be understood in cyberspace. These statements are at the centre of the debate on how international law applies to cyberspace, but while some of them are detailed and contain useful examples, others remain somewhat generic.

Furthermore, a number of other actors and initiatives advance norm-making in cyberspace, including non-binding norms. Not all of these actors can be addressed here. Most prominently, however, there are two UN working groups, the U.S.-led UN Group of Governmental Experts (GGE) that has come to an end in 2021 and the Russian-led UN Open ended working group (OEWG) which continues to meet at the time of writing. Both groups work on similar issues and publish consensus reports, but their composition differs. Other multilateral fora that have previously positioned themselves on the application of international law to cyberspace are organisations such as NATO as well as collective groups of states like the G20.

However, states are not the only relevant actors pursuing norm-development in cyberspace. They are joined by several multi-stakeholder fora advancing cyber norms, such as the Paris Call, the Internet Governance Forum, International Telecommunications Union as well as ICANN, the Internet Cooperation for Assigned Names and Numbers which maintains the technical infrastructure of the internet. The number of relevant actors is further complemented by private sector companies such as Microsoft that play an active role in norm development. The most prominent collection of academic interpretations of international law in cyberspace are advanced in the non-binding Tallinn Manuals, referenced frequently throughout this chapter. Whereas all of these organisations contribute to the discussion on how international law applies to cyberspace in one way or another, primary focus of this chapter rests on states’ individual and collective interpretations.

C. General Principles of International Law
In the absence of a comprehensive cyber treaty that explicitly regulates cyberspace by advancing new norms, the debate on the application of international law to cyberspace primarily revolves around the application of existing principles of international law to cyberspace. The following section will exemplify such discussion by taking a closer look at a number of principles. Particularly relevant principles include the prohibition of the use of force and the right to self-defence. Closer attention will be paid to the Stuxnet Operation in Iran, wildly considered the only cyber operation seen until today that amounts to a use of force and potentially an armed attack. Secondly, this section addresses the application of sovereignty to cyberspace before, thirdly, turning to the principle of non-intervention and its application in cyberspace.

I. Use of Force & Self-Defense
The prohibition of the use or threat of force is an ius cogens norm of public international law and wildly considered as the cornerstone of the UN Charter. It is embodied in Art. 2(4) and is also applicable in cyberspace. This has been confirmed by states, the UN working groups and is also reflected in the Tallinn Manual and academia. Thus, there is no longer any debate on the applicability of the prohibition of use of force in cyberspace, but as is the case for many principles of international law, the question remains how its application can be understood exactly, including the question of what amounts to a use of force in cyberspace addressed in this chapter.

As the term “force” is not defined in the UN Charter, its exact scope and meaning have been subject to much scholarly debate since the UN Charter came into force. As Delerue writes, “The lack of a precise definition is clearly problematic”. At the very least, it leaves open fundamental questions, some of which are of pivotal importance for the cyber context. For example, the question arises whether force is merely restricted to “armed force”. Some support this interpretation, while others suggest that force can extend beyond “armed force”. The drafting process of the UN Charter reveals that the drafters did not intend to include any use of force, as they excluded economic, political and indirect force from Art. 2(4). Clearly, only the latter interpretation includes cyber operations. In light of the development of modern technologies and weapons including biological and chemical weapons, “the debate on the qualification of cyber operations as armed operations comes across as relatively outdated” and it seems no longer “accurate to limit the prohibition of the use or threat of force to armed force”.

Yet, even without limiting force to armed force, not every cyber operation amounts to a use of force. The exact qualification of when cyber operations amount to a use of force differs greatly amongst both states and scholars. Delerue identifies three different approaches that determine whether a use of force has occurred: the target-based approach, the instrument-based approach and the consequence-based approach. The target-based approach considers that a cyber operation amounts to a use of force where it penetrates critical national infrastructure. However, as there is no minimum threshold that has to be met here, the approach is generally considered as too inclusive. The second, instrument-based approach emphasises the “similarity between cyber operations and traditional weapons”, which, however, is often far-fetched. As such, this approach seems outdated and mismatched to the realities of low-intensity cyber operations. Finally, it is the consequence-based or effects-based approach that finds most support. It stresses the importance of the effects caused by cyber operations and foresees that any cyber operation resulting in the physical destruction or loss of life amounts to a use of force. Several criteria have been established to determine whether the effects caused by a cyber operation amounts to a use of force, including severity, immediacy and invasiveness.

Even where this nowadays most popular interpretation is followed, it is less clear whether non-physical effects can also amount to a use of force and whether there is a de minimis threshold that has to be met to constitute force. Currently, there is no scholarly agreement on these matters. And although many states support an effects-based interpretation, these categories remain largely based on an existing legal framework tailored around kinetic uses of force. Consequently, the question remains whether a cyber-specific approach may still add value to the discourse.

Closely related to the prohibition of the use of force is the question when such force amounts to an armed attack, triggering another state’s customary right to self-defence enshrined in Article 51 of the UN Charter. Although some states consider that any violation of the use of force also amounts to an armed attack, this interpretation forms a minority view. The far more common interpretation understands that not any use of force amounts to an armed attack but that an armed attack is only reached where a significant threshold is met. Such interpretation is also supported by the ICJ’s Nicaragua case, in which the Court held that only the “most grave forms of the use of force” constitute an armed attack. In order to determine what amounts to such “most grave form” of the use of force, the Nicaragua case set out the scale and effects test. Such assessment considers the scale, i.e. “the magnitude and intensity of the cyber operation (amount of force used, its location and its duration)” as well as its effects, i.e. “the consequences of the cyber operation (damage and casualties)”. Of course, the question arises what factors are taken into account when conducting such assessment. Whereas taking into account non-physical effects is still controversial, not every cyber operation with physical effects amounts to an armed attack either. Instead, an assessment of scale and effects needs to be made. The Tallinn Manual 2.0, for example, speaks of “all reasonably foreseeable consequences of the cyber operation” that must be taken into account. Equally controversial is also the question whether the accumulation of events can mean that several cyber operations not meeting the threshold individually can collectively meet the threshold of an armed attack. To this day, no cyber operation has publicly been qualified as an armed attack.

II. Sovereignty
Already outside a cyber context, the principle of sovereignty is a highly complex principle of international law. While no authoritative definition of the principle exists, many scholarly suggestions of definitions evolve around concepts such as territory, control, and independence. Besson, for example, calls it the “supreme authority over a territory”. But scholarly debate around the role of sovereignty has been divided, some still considering sovereignty as a cornerstone of public international law in the 21st century, others considering it largely outdated. Nevertheless, there is no doubt that states still consider it highly relevant, including in a cyber context. States have repeatedly stressed that state sovereignty applies to cyberspace. However, again the question arises as to what that means exactly. Sovereignty is an incredibly broad, historically and politically complex principle. Such complexity means that already outside a cyber context it is difficult to pin-point as to what sovereignty means exactly – a problem that is now transposed to the cyberspace debate. Here, the question on how sovereignty applies to cyberspace can also be addressed from many different angles.

One way in which the principle of sovereignty plays out in cyberspace is through exercising jurisdiction. Jurisdiction is a key component of state sovereignty and as such, will be addressed separately in section XX. A second perspective that can be taken when examining how sovereignty applies in cyberspace is focusing on the question of governance of cyberspace. Some considerations on this topic have already been shared in section B. of this chapter.

It is a third perspective, however, that often receives the most attention when discussing the application of sovereignty to cyberspace: the question whether sovereignty constitutes a principle or a rule of international law. Why does this debate matter in the first place? Where a cyber operation is attributable to a state (see state-responsibility section XX ) and the activity in question violates a primary rule of international law but no circumstances precluding wrongfulness are applicable, the act constitutes an international wrongful act. In response to such international wrongful act, the targeted state may use countermeasures. These have to fulfil certain requirements like proportionality, but overall, it allows a state to respond in a way that otherwise might be unlawful itself. However, where no primary rule of international law was violated and consequently, no international wrongful act can be established, the targeted state may merely use retorsion in response but cannot legally resort to countermeasures.

Many states and scholars have since positioned themselves in this so-called “principle vs rule” debate. On the one hand, there is the United Kingdom which has repeatedly confirmed its interpretation that sovereignty merely constitutes principles of international law. This means that although many specific rights are closely related to this principle, where a cyber operation does not violate any of these specific rights, they do not constitute a violation of international law and thus, no international wrongful act either. The targeted state therefore cannot resort to lawful countermeasures. Some scholars have supported this view, but overall, support for this interpretation remains somewhat limited.

In contrast, many states have positioned themselves in the “sovereignty as a rule” camp, confirming that they understand sovereignty as a primary rule of international law and that where such rule is violated, the activity in question amounts to an international wrongful act. Finland, for example, explicitly confirms this view by stating that it “sees sovereignty as a primary rule of international law, a breach of which amounts to an internationally wrongful act and triggers State responsibility”. So do New Zealand, Germany and France. The interpretation that sovereignty constitutes a rule of international law has also been supported by the experts of the Tallinn Manuals and many other international legal scholars. Under this interpretation, sovereignty almost serves as a catch all function for those cyber operations that otherwise do not meet the threshold of other primary rules of international law.

Whereas the majority view thus sides with the sovereignty as a rule interpretation, this does not mean that states in this camp agree on one definition of sovereignty. To the contrary, considerable differences amongst these states remain. This primarily concerns the question when a violation of sovereignty occurs exactly. While all states in this group agree that such violation constitutes an international wrongful act, they differ on what they consider the relevant threshold that has to be met for such violation. Some states like France consider any penetration of their networks a violation of sovereignty, others require a certain de minimis threshold to be met. The question of what exactly constitutes such threshold often remains open in state statements. Some refer to the Tallinn Manuals on the matter, others do not specify what they think constitutes such threshold. It is clear though, that even where states agree that sovereignty constitutes a rule of international law, the devil is in the details and again, the question of how such principles applies exactly remains open.

Whereas the principle vs rule debate has occupied a prominent spot in the discussion on the broader application of how international law applies to cyberspace, some scholars have pointed out that the practical impact of this debate is indeed limited. This is particularly true for states that enjoy considerable cyber powers which can respond to offensive cyber operations in kind and may engage in such activities themselves. As a consequence, they may have limited interest in clarifying these thresholds.

III. Non-Intervention
A further general principle of international law that applies to cyberspace is that of non-intervention. The principle of non-intervention is based on the idea of sovereign equality and that as all states are equal, one state may not intervene in the affairs of another state. The application of the principle to cyberspace has been widely agreed upon, including in the UN working groups, state statements, the Tallinn Manuals and academia more widely. But although there is a general agreement that the principle of non-intervention constitutes a primary rule of international law (in contrast to the principle vs rule debate that exists for the principle of sovereignty, see above), its application remains subject to many uncertainties. This is especially true for those activities that remain below the use of force threshold. Whereas a military intervention is the most obvious form of intervention, the discussion on the application of non-intervention to cyberspace primarily revolve around those cyber operations that remain below the use of force threshold. This section will therefore focus on these so-called low-intensity or disruptive cyberoperations.

A first look at the principle raises the impression that the principle of non-intervention is – as far as general principles of international law go – not just well-established but also well-defined. The ICJ’s Nicaragua case is the key reference in this context when stating that “The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference” and that “The existence in the opinion juris of States of the principle of non-intervention is backed by established and substantial practice”.

Two requirements follow from this judgment which have to be fulfilled in order for an activity to amount to an unlawful intervention. Firstly, the activity in question must target another state’s domaine réservé. The domaine réservé is typically defined as an area in which a state can decide freely. The Permanent Court of International Justice considers the decisive question whether the matter in question is “not, in principle, regulated by international law”. As the scope of international law has, however, significantly expanded over the last decades, e.g. to include human rights law, international criminal law or international environmental law, the area outside the scope of international law decreases. This is, however, not a cyber-specific problem. Instead, the exact scope of the domaine réservé has always remained undefined. Some areas very clearly fall under its scope though. The Nicaragua case lists a number of areas that fall under its scope, including “the choice of political, economic, social and cultural system, and the formulation of foreign policy”. A prime example of an activity that falls within a state’s domaine réservé is holding elections. As elections and related election interference is a prime example for how the principle of non-intervention can be applied in cyberspace, this chapter will take a closer look at cyber-enabled election interference below.

The activity in question must, however, also fulfil a second requirement in order to qualify as an unlawful intervention, that of coercion. The ICJ’s Nicaragua underlines the importance of this requirement when it refers to it as “the very essence” of intervention. Coercion as a requirement is crucial and points to the “core of the mischief” as it distinguishes mere influence, which may be unwanted but not unlawful, from unlawful intervention.

Much like is the case for the term domaine réservé, the exact definition of coercion remains unclear, particularly so in cyber context. Reismann, for example, speaks of coercion as an “imperative pressure”; Oppenheim famously referred to it as “dictatorial interference”.

What exactly constitutes coercion is thus not clear - a problem that is further augmented in the cyber context, where interaction between states are constant and often disruptive, but not always easily defined as coercive. The following example will demonstrate how difficult it is to apply these definitions to cyber operations.

This example has demonstrated how difficult it is to apply the principle of non-intervention in practice. This is the case as most low-intensity cyber operations to not reach the high thresholds set out by the non-intervention principle. While some academic suggestions to redefine these thresholds exist, they remain purely academic at this point. As the law stands, this means that most cyber operations fall short of these thresholds.

D. Jurisdiction in Cyberspace
Exercising jurisdiction is “the legal competence of a State […] to make, apply, and enforce legal rules”. As such, it is a way for the state to exercise its authority or control over a specific territory or activity and is a central competence of a state. Like with many of the principles discussed here, there is little doubt that jurisdiction generally applies to cyberspace. States have repeatedly confirmed that they enjoy jurisdiction over Information and Communications Technology infrastructure in their territory. Similarly, academia has also argued in favour of its applicability and so do the Tallinn Manuals. This includes prescriptive/legislative jurisdiction, enforcement jurisdiction and adjudicative jurisdiction alike.

While it might seem intuitive that a state would enjoy jurisdiction over cables and computers in its own territory, establishing jurisdiction is not always straightforward. Given the at least in part a-territorial nature of cyberspace, it is not always clear how such jurisdiction can be established in cyberspace. Generally speaking, jurisdiction can be established where there is a link between the state and the person or activity concerned. It can be established through a number of principles, such as territoriality or nationality as well as universality. In cyberspace, however, it is primarily the question how the territoriality principle can be applied to establish a link between the state and the activity in question. This is because the nationality principle applies in the same fashion as outside a cyber context, even though identification of actors might be harder at times. Universal jurisdiction can be established for grave crimes or piracy, but not regular online behaviour.

A closer look at three theoretical approaches illustrates the difficulty of establishing jurisdiction in cyberspace. Let us take the example of a French website globally selling items online. Some argue that in this instance, the destination approach should be followed, i.e. granting a state jurisdiction if the website in question has been locally accessed. Whereas this reasoning has been applied in the past, it is ultimately not considered practical: given that customers from all over the world might be able to order from this website, it allows for too many competing claims for jurisdiction. This is because there is hardly any threshold that has to be met for a state to argue it has jurisdiction. As a consequence, it comes close to a universal jurisdiction which, traditionally, is only reserved for the most severe crimes, such as piracy, but not to regular activities in cyberspace such as online shopping.

Therefore, a variation of the destination approach, i.e. the targeted destination approach, has been advanced. According to it, no longer any state that can access the website can establish jurisdiction but only those states that have been targeted by a website. The targeted destination approach has been applied by the European Court of Justice, but has been criticised for advancing fragmentation of otherwise global cyberspace and has been consider unsuitable for intangible services, e.g. streaming films.

Finally, there is the origin approach, i.e. the idea that jurisdiction is granted to the state where a website is either registered or hosted. Coming back to our example, this means that the French registered website would only have to comply with French law even when it sells items to customers in other states. While such approach is appreciated by businesses who under this approach merely have to comply with the law of one state, it also bears the risk of a “race to the bottom” as businesses are thus tempted to registered in the state with the most lenient regulation in place.

This short overview is by no means comprehensive, but it has illustrated some of the factors that need to be considered when trying to apply existing principles around jurisdiction to activities in cyberspace and what risks and impacts follow. Finally, this section will take a closer look at a particularly controversial issue concerning jurisdiction in cyberspace.

E. State-Responsibility
States are not the only active parties using cyber operations to achieve their aims. Various groups of users may deploy cyber operations, e.g. as cyber criminals with primarily monetary aims or hacktivist pursuing political aims. Many states also outsource their cyber operations to non-state actors or proxy-actors, benefitting from their skills, their cheap labour and the anonymity, given the lower risk of the activity being traced back to the state. However, the line between who is responsible for the activity in question is not always straight forward. Indeed, attributing a cyber operation to as much a question of fact and technical attribution as it is a legal one.

There are also criminal hacker groups that conduct attacks which are primarily conducted out of monetary motivation, but which are nevertheless suspected to have some ties to governments – at the very least in the sense that they do not fear prosecution for their actions from a certain state as long as they do not target it directly. For example, the Conti ransomware group was responsible for a wide range of ransomware attacks in 2020 and 2021. Although “evidence of Conti’s direct ties to the Russian government remains elusive”, their activities largely aligned with the interest of the Russian government and they do not have to fear prosecution by the Russian state.

In a domain that allows skilled actors to remain largely anonymous, understanding what cyber operation took place and what its consequences are is critical next to identifying from which machine a cyber operation was launched, who launched it and whether the act can be attributed to a state actor against whom the response can be taken is key. While the attribution of a cyber operation to a machine or a person is primarily factual and technical, it is also extremely complex and often challenging to find evidence for attribution, especially where actors impersonate one another. Nevertheless, significant progress has been made in the forensic analysis that forms the basis for any factual assessment of attribution.

States are nowadays more likely to attribution cyber operations than they were in the beginning of the 21st century. For such attribution, however, there also needs to be legal attribution. Legal attribution of an act or an omission to a state can be made under the law of state responsibility. It determines whether the act of a group or an individual constitutes an international wrongful act that can be attributed to a state and, if this is the case, whether there are any circumstances precluding wrongfulness. For the application of the law of state responsibility in cyberspace, which was confirmed by states, the UN working groups, and initiatives such as the Tallinn Manual, it is primarily the issue of attribution that raises further debate.

The law of state responsibility can primarily be found in the 2001 Articles on State Responsibility which provide insights on when an act or omission can be attributed to a state. This is of course the case if state officials or a state organ acts on behalf of the state, but may also be the case for individuals or groups as the proxy actors mentioned above. Art. 8, widely considered to reflect customary international law, clearly states that"“The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”."The group or individual must therefore not act in complete dependence on the state, in which case they would amount to a state organ anyway, but it suffices if they are either under the instructions or direction or control of a state. The difference between the three notions – if there is one – is not always clear. If a state instructs a group to conduct a specific cyber operation, the act is attributable to the state. Although not all details must be determined, not every generic call for action qualifies as instruction, nor is an act attributable to a state if the group or individual exceed the instructions given. Direction refers to an “ongoing relationship of subordination”, e.g. where a state gives long-term guidance rather than specific instructions to a group. Finally, control that goes beyond mere control over the territory in question but amounts to actual control over the non-state actor means that the act or omission can be attributed to the state.

Much more could be said here about the various degrees of connection between the state and the non-state actor in question and what legal consequences such relationship carries. For the purposes of this introductory chapter, however, it is important to remember that just because states outsource their cyber operations to individuals or groups, this does not mean they cannot be held responsible for such acts or omissions. Instead, the law of responsibility also applies in cyberspace and allows for the attribution for such acts or omissions to the state in question. Even though factual and technical attribution still remains challenging, much progress has been made on the forensics behind such analysis.

F. International Humanitarian Law in Cyberspace
Unlike some of the other areas of international law examined here, the applicability of international humanitarian law (IHL) in cyberspace was a controversial topic amongst states. For example, the failure to reach agreement over the 2017 UN GGE report arguably at least partially stems from disagreement regarding the applicability of international humanitarian law in cyberspace. The academics of the Tallinn Manual 1.0, published in 2013, had already clearly supported the applicability of IHL to cyber operations conducted in the context of an armed conflict. Since then, individual states have confirmed this interpretation.

Confirming the general applicability of IHL in cyberspace, a closer look at practice is needed to understand how and when it applies exactly. The narrative of a cyber pearl harbour and cyber Armageddon, which were particularly prominent in the 2010s, are nowadays considered inaccurate - particularly in light of the Russian 2022 invasion of Ukraine. Nevertheless, such language raises the question of when and how IHL applies to cyber operations. The application of IHL is triggered where an international or non-international armed conflict exists. However, to this day, no individual cyberattack has reached this threshold and it remains unlikely that this threshold will be reached. As such, international humanitarian law will most likely apply to cyber operation where these form part of a conventional armed conflict, as is the case in Ukraine. Long subject to Russian cyber attacks, Ukraine faced an increase in number and intensity of such attacks in the context of the 2022 invasion. Russia continues to attack Ukraine through a range of cyber activities, including DDoS attacks and other cyber operations, some of which are coordinated with kinetic attacks.

Where a cyber operation does form part of an international or non-international armed conflict and constitutes an attack, it has to comply with the same principles of IHL that also apply to kinetic attacks. Given this short introduction of this chapter, this section is limited to the following provisions that point the reader to key elements of international humanitarian law but naturally does not present a comprehensive analysis.

I. The Principle of Distinction
The principle of distinction is a central principle of IHL which forms part of customary international law and as such, it is applicable to international and non-international armed conflicts. It foresees that an attack must at all times distinguish between combatants or military objectives who can be directly targeted and civilians or civilian objects who may not be directly targeted. Medical or religious personnel of armed forces, injured combatants or prisoners of war may not be directly targeted. Military objectives, i.e. objects that according to their nature, use, purpose or location make an effective contribution to military operations and whose capture, destruction or neutralisation would confer a definite military advantage, may be directly targeted. In contrast, civilian objects and civilians may not be directly targeted, unless they have been turned into a military objective (e.g. by location munition in a school) or are civilians directly participating in hostilities may not be targeted. Whereas these rules apply to cyberspace, details thereof remain unclear. The interconnectivity of ICT infrastructure further means that it is not always clear how to distinguish between civilian and military structures. To enable greater distinction, the ICRC has suggested a digital emblem marking hospitals and other digital infrastructure that may not be directly targeted.

II. The Principle of Proportionality
The second cornerstone principle of IHL is that of proportionality, which is also part of international customary law, and therefore, applies to international and non-international armed conflicts alike. It means that an attack against a military objectives is unlawful where the concrete and direct anticipated military advantage of an attack is excessive in relation to the attack’s impact on civilian life or the damage or destruction of civilian objects. If an attack is directed against civilians or a civilian object, the attack is automatically unlawful and may even amount to a war crime. The principle of proportionality also applies to cyber operations that are an attack in an armed conflict. Controversial is the question whether attacks that do not cause or are intended to cause physical effects are also subject to the proportionality assessment. The Tallinn Manual, for example, argues that this is not the case. Accordingly, information operations or electronic warfare against communications systems are not subject to the proportionality assessment.

III. The Principle of Precaution
Thirdly, an attack must comply with the customary principle of precaution, i.e. the attacker must take constant care to spare the civilian population, civilians and civilian object and must take all feasible precautions to minimise or avoid incidental loss of civilian life, injury or damage or destruction to civilian objects. It follows that when planning or conducting an attack that is likely to result in excessive harm, such attack must be cancelled or suspended. As such, the principle is similar to the principle of proportionality, but refers to elements such as timing, means and methods of an attack. The Tallinn Manual provides insights on how precautions can be taken for cyber attacks, e.g. by including technical experts in the planning of attacks.

Further critical principles like the prohibition of perfidious attacks or questions such as the geographical scope of the applicability of IHL to cyber operations as well as the application of the law of neutrality cannot be covered here for reasons of scope. However, the previous examples have demonstrated that although it is unlikely that cyber attacks may amount to an armed conflict on their own, where they form part of such armed conflict, they are subject to the same key provisions conventional attacks are.

G. Human Rights Law
Early versions of cyberspace and the development of the internet were seen as a revolutionary opportunity to advance human rights standards globally, the development of one fertilising the development of the other. Such development, however, was not appreciated by authoritarian states which, by relying on notions of sovereignty and non-intervention, restricted access to the internet as a form to oppose U.S. soft power. Nowadays, the intersection of cyberspace and human rights often raises associations of internet restrictions, internet shut downs and human rights infringements. Examples that come to mind is the Great Firewall in China, the heavy free speech restrictions in Russia or repeated shutdown of internet in Iran in response to protests. They all illustrate how closely cyberspace and human rights are interconnected.

I. Freedom of Expression Online
There is widespread agreement that human rights also apply online. Amongst the most prominent examples of human rights online are some of the civil and political rights related to communications, including the right to freedom of expression and the right to privacy as well as connected rights such as the freedom of opinion and thought. The freedom of expression and its application to cyberspace is a particularly contentious topic, but differences in interpretation of the scope of free speech have existed long before the popularity of the internet and social media. For example, the U.S. follows a much more expansive interpretation of freedom of speech than Germany, particularly when it comes to Holocaust denial and hate speech, but differences are also reflected amongst different human rights treaties like the ECHR or the ICCPR. However, varying restrictions of the freedom of expression are particularly evident when comparing restrictive practices of authoritarian and liberal states. In light of increased restrictions of free speech online, procedural protections of the right to free speech are crucial.

Varying approaches to the restriction of free speech stand in particularly stark contrast to the divergence of communications enabled by the global reach of social media platforms. While large proportions of the globe are connected through platforms like Facebook or Twitter, access thereto is restricted in states like China or Iran. Within these platforms, however, freedom of speech is not unregulated either. Instead, content moderation or the lack thereof by social media platforms is a reoccurring topic of controversy. The powerful position of a handful of tech giants raises questions over who regulates freedom of speech and again, what procedural safeguards are in place.

II. The Right to Privacy Online
The right to privacy is another key human right that is central in the debate on how human rights law applies online. It can be found in international human rights treaties such as Art. 17 ICCPR. As such, it pre-dates the rise of the internet, but in an increasingly inter-connected world fuelled by data, the right to privacy has gained ever more importance.

In some respects, much progress has been made with respect to protecting privacy in the digital age. Particularly the EU’s General Direction on Privacy Rights (GDPR) has been highly influential in setting standards of data protection in and beyond Europe. However, there remain significant discrepancies between the standards set out in human rights treaties such as the ICCPR and “the reality of government practices on privacy”, such as expansive surveillance practices. Additional concerns include the powerful role of tech-giants, fed by ever more information users post online, raises questions about privacy standards and how government can or wants to impose them via the private sector regulation as well as how government can protect citizens’ privacy from interferences via cyber crime or cyber espionage.

III. A New Right to Internet Access?
Human rights law online also addresses the realisation of economic, social and cultural rights. While it is clear that economic, social and cultural rights also apply online, how they can be advanced largely relates to aspects such as digital access and a stable and secure internet connection in the first place. These circumstances are, however, not always given but instead, there is a digital divide both across and within states. Given the economic and cultural importance of the internet, some find that access is key to realise the right to development while others have gone even further and advocated for a self-standing human right to internet access. However, such argument is highly controversial and points out that many details on the question of how human rights law plays out online is in fact still unclear and under development.

Further Readings

 * Source I
 * Source II

Conclusion
In a highly digitalised world, almost all aspects of life are interconnected with online activities. This is also true for subject matters that typically fall under the scope of international law, such as general principles of international law, humanitarian law or the law of state responsibility. This chapter has demonstrated that existing norms of international law find application in cyberspace, whether it is to inter-state cyber operations targeting foreign elections or those conducted in connection with armed conflicts, or whether it affects human rights law and the freedom of speech online. However, this chapter has also pointed out that although the application of international law to cyberspace is widely agreed upon, including the more specific areas thereof examined in this chapter, the discussions on how it applies exactly are still at their beginning. Both technology and state practice are developing further, feeding into the discourse on how international law exactly applies to cyberspace. Furthermore, numerous initiatives on norm-development in cyberspace add to the discourse. Against this backdrop, many of the details on the interpretation and application of international law remain unclear at this stage, requiring further research and clarification by both academia and state practice.


text:
Public International Law/Space Law

 General Principles of International Law

Author: Deepa Kansra "Required knowledge: Link" "Learning objectives: To understand the international norms (binding and voluntary) which govern and regulate the activities of states and other actors in outer space; the core principles and concepts that shape decision-making and developments in international and national space law; the challenges faced by countries and international organizations in the implementation of space laws; the interface of space law with other domains namely human rights law, environmental law, etc."

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I. Introduction
Space law can be described as the body of law which governs space activities. It is a specialized branch and component of general international law with its objectives and principles adopted in treaty law and resolutions adopted by specialized agencies. Space law, in terms of nature, is multidimensional, with its formation and development shaped by concerns from the public, private and technological, economic, security and political domains The present chapter discusses some of the core concepts and principles of space law along with the challenges posed to their implementation and reform.

History

Historically, the United Nations (UN) constituted an international forum to codify rules for the regulation of activities in outer space to establish an effective, fair, and transparent international legal regime and to respond to the geopolitical considerations, particularly the competition between the superpowers, the United States and the Soviet Union. The first step, under the aegis of the UN, was the constitution of the Committee on the Peaceful Uses of Outer Space (COPUOS). The mandate of the COPUOS included the (a) formulation and codification of international space law and, (b) guiding its development based on principles of cooperation and equality amongst states. The UNCOPUOS, along with its two sub-committees, i.e. the Scientific and Technical Sub-Committee and the Legal Sub-Committee, were created to play a central role in the regulation of activities in outer space. Since its inception, the contributions of the COPUOS can be viewed under three phases.

First is the pre-treaty phase wherein the COPUOS drafted a handful of UN declarations and resolutions with considerable political and moral force, but no binding legal character. This phase covers the adoption of the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (1963), which incorporates the core principles of international space law (peaceful purposes, international cooperation, non-appropriation, and more. .) The second phase is the golden age of space law treaty-making, in which the Outer Space Treaty (OST) and other agreements, i.e. the five core treaties on outer space law, were created. Of these, the OST 'functions like a constitution and it sets out the general principles that are the basis for all of space law'. Third, COPUOS adopted non-binding resolutions to address the new conditions concerning outer space. (e.g., the Guidelines for Long-Term Sustainability, 2019; the Declaration on International Co-operation in the Exploration and Use of Outer Space for the Benefit of all States, Taking into Particular Account the Needs of Developing Countries, 1996). COPUOS also makes way for coordination and cooperative efforts in several areas within the space security portfolio. This includes joint activities with the International Telecommunication Union (ITU) for managing radio frequencies, the Committee on Earth Observation Satellites (CEOS) for coordinating remote sensing satellites, and the World Meteorological Organization (WMO) the governance of weather satellites. The COPUOS also plays a significant role in shaping the development of international space rules while coordinating with space actors including States, organizations, and private enterprises. The intensification of space activities has made two space-related activities particularly important. First, the extension of existing space rules to respond to the new conditions (technological advancements, geopolitical conditions, commercialization of space resources). Second, the proliferation of space rules of states forged individually and in collaboration with other actors.

B. Sources
The regulatory framework for space activities comprises standards of binding and non-binding nature incorporated in the space treaties, international resolutions and rules of international organizations. Under the OST, state parties to the treaty are required to carry out activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations. By referring to the UN Charter, the fundamental principles of international law are included in the scope of space law (sovereign equality, the maintenance of international peace and security, etc.). Further, state parties are obligated to formulate and adopt national-level policies to implement their international mandates and commitments. For a comprehensive view of the subject, the following paragraphs provide an overview of the core space treaties, the non-binding standards, and national-level law/policy.

I. Space Treaties
In 1963, the UN General Assembly (UNGA) adopted the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963 (Principles Declaration). The Principles Declaration was followed by five treaties, referred to as the “heart of international space law”. These include the OST; the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement); the Rescue Agreement; the Liability Convention; and the Registration Convention.

1. The Outer Space Treaty (OST), 1967
The OST is the “main legal framework” containing the key principles or the “foundational components” concerning the use and exploration of outer space. The importance of the OST as an authoritative guide for space actors has been widely discussed. First and foremost, the historical context of the OST matters. It is commonly understood that its provisions were shaped by the geopolitical considerations, competition, and possibly confrontation of the two superpowers of the day, the United States and Soviet Union. Secondly, the OST covers principles that have been "recognized as customary law” including non-appropriation and equality of states. . Some view the obligations as provided under the OST (and other treaties) as obligations erga omnes. Thirdly, the OST is an important guide for states and other actors in the field. The principles enshrined in the treaty have assisted in the development of international and domestic rules.

2. The Moon Agreement,1979
On the Moon Agreement, Jankowitsch writes, was the fruit of an intensive international legislative effort, conceived and negotiated multilaterally by the COPUOS and later adopted unanimously by the UNGA. In addition, the agreement substantially reaffirms many of the provisions of the OST. In terms of participation and compliance, the Moon Agreement is often viewed as a failure for its low number of ratifications in comparison to other treaties. To some, this is because many of its provisions are in contrast to a more market-friendly world. To others, the Moon Agreement is the least popular due to its restrictive terms and provisions. For example, Article 11 declares the Moon and its natural resources to be the Common Heritage of Mankind and calls for the establishment of an international regulatory regime to govern the exploitation of the natural resources of the Moon. To Tronchetti, the failure of the Moon Agreement to gain general acceptance may be in large part attributed to the different interpretations of Article 11 by developed and developing States. States advanced opposite views about the interpretation and application of the ‘Common Heritage of Mankind’ concept to the management and exploitation of lunar resources. Further, the Moon agreement fails to meet the necessary geopolitical and economic realities of the current space environment and the priorities of those engaging in activities in the domain. To Neto, the commercial exploitation of space resources can explain the reluctance of spacefaring nations to subscribe to the Moon Agreement.

Despite low participation, the principles incorporated under the Moon Agreement have been cited time and again. To a few, the Moon Agreement contains several articles that tighten restrictions on state activities and powers. To others, "the treaty aims to establish a number of best practices and guiding principles for the cooperative use and exploitation of the Moon and celestial bodies, which particularly from a Global South perspective emphasize on the distribution of benefits to developing countries who may otherwise lack access to such resources and the ability to benefit from them." On the question of state liability for damage to the space environment, Tronchetti writes, although the Agreement has not be ratified by the major space powers, it gives a “preliminary indication that the use of the Moon must be carried out in a non-detrimental manner for the lunar environment.” The principles and objectives of the Moon Agreement have also been endorsed under several instruments adopted by COPUOS, member states, and other agencies. Take the example of the Moon Village Association (MVA) and its draft on the Best Practices for Sustainable Lunar Activities (released in 2020). In its recent submission before the COPUOS, the MVA states, “there is a requirement for international rules to ensure sustainable lunar exploration and settlement in and around the Moon, benefits sharing, sharing of information, registration of activities, mitigating the creation of debris in lunar orbit, and coordinating access to natural resources” The need to emphasize the importance of the Moon Agreement has been felt by many. More so, in the light of increased involvement of companies and the making of new instruments and agreements concerning space exploration (Example the Artemis Accords). .

3. The Liability Convention, 1972
The question of state responsibility for damage caused to other States is an important one. Under the OST, Articles VI, VII and VIII relate to State liability. According to Sachdeva, the effect of the requirements for authorization, registration, and continued supervision, as provided under the OST, is that the state cannot wash its hands of the results of the activities of its nationals. If therefore, the activities cause damage, a nexus is constituted between them and the home state sufficient to impute liability on the part of the state.

The Liability Convention elaborates upon the provisions of the OST by establishing a framework for claiming compensation for damage caused by space objects. In 1971, the UNGA underlined that the “Convention fulfills the need of the international community for a separate international instrument on the rights and obligations pertaining to liability for damage”. In the text of its Preamble, the Liability Convention recognises “the need to elaborate effective international rules and procedures concerning liability for damage caused by space objects" and aims "to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage”.

The notable features of the Convention include Article I, which defines damage as loss of life, personal injury or other impairments of health; or loss of or damage to property of States or of persons, natural or juridical, or property of intergovernmental organizations. Article XII of the Convention specifies that the compensation which the launching State shall be liable to pay for damage under this Convention shall be determined in accordance with international law and the principles of justice and equity. The Convention also covers:

 * 1) The absolute liability of launching states for damage caused by their space objects to anything on the Earth’s surface or flying aircraft.
 * 2) The process of establishing fault for damage done to other space objects; the responsibility and payment of compensation to third-party states if damage results from two launching states.
 * 3) The joint responsibility and liability of launching states if they jointly launch a space object.
 * 4) The exoneration of liability of launching states due to gross negligence or act or omission with intent to cause damage by the state claiming compensation.
 * 5) The claims process for compensation; the statute of limitations of one year for a claim to be made following the date of occurrence of the damage or the identification of the liable launching state.
 * 6) The provision of appropriate and rapid assistance to a damage-affected state in the case of larger-scale danger to human life or interference to living conditions or functioning of important centres.

Further, the Draft on the Legal Application of the Concept of Launching State provides that States consider following common practice the conclusion of agreements following the Liability Convention for each stage of a mission concerning joint launches or cooperation programmes, and consider harmonizing voluntary practices regarding the on-orbit transfer of ownership of spacecraft, to increase the consistency between national space laws and help avoid lacunae in the   implementation of the international treaties. In 2005, the UNGA Resolution on Application of the Concept of the Launching State reaffirmed that “a launching State shall register a space object under the Registration Convention and that the Liability Convention identifies those States which may be liable for damage caused by a space object and which would have to pay compensation in such a case.”

According to Gupta and KD, the liability of non-governmental entities for commercial use of outer space activities on behalf of space launching states is not very clear under the existing space law regimes. Further, the authors discuss the importance of national-level policy making for incorporating provisions to provide for limited liability, compulsory insurance and cross waiver as a mechanism to share the liability with the private parties. This necessitates the need for efficiency of domestic frameworks in the regulation of space activities of commercial actors.

II. Non-binding Rules
As discussed previously, space law covers non-binding international rules or rules of a voluntary nature i.e. soft law.. The non-binding rules, although voluntary, have been found to have considerable influence on the development of outer space law. In the case of the Space Resolutions of the GA, for instance, they are “recommendatory and non-binding” and carry “notable political weight especially when adopted with the full support of the Assembly’s members”. To Jankowitsch, the resolutions form a code of conduct and reflect a wide legal conviction of the present international space community on special categories of space activities. If followed, as is the case, by constant practice of states and international organizations, the resolutions may play a significant role either in establishing customary rules of international law or serve as a basis for future international negotiations on treaties to regulate the same subjects but this time in a legally binding manner” For instance, the documents adopted by COPUOS “have been a constant driver for the development of space law and international cooperation of Member States in their space activities”. One can look at the UNGA Principles Declaration, which incorporates the fundamental principles of outer space law.

The Declaration informs the development of space law in treaties, declarations, national policies, and other agreements. Other notable instruments include the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (the Benefits Declaration,1996); Resolution on No First Placement of Weapons in Outer Space (2014); Voluntary Guidelines on Long-Term Sustainability (LST Guidelines, 2019) etc. All of the above-mentioned constitute an integral part of the full measure of standards for the governance of outer space activities. The instruments have been found to be either elaborating the principles incorporated in the space treaties or reflecting the urgent needs of member states and the international community.

Notable examples are the LST and the Space Debris Guidelines. On the LST Guidelines, Martinez writes, the importance of the guidelines is that they codify, for the first time, an internationally accepted set of best practices for space sustainability. These practices have been agreed upon by 92 States, which includes all spacefaring countries and the vast majority of other countries that rely on space. This is significant because space sustainability is essentially a global challenge that can only be addressed successfully if all countries act collectively. The challenges of space sustainability are inherently multilateral challenges that are most effectively addressed through multilateral space diplomacy in the forum of COPUOS, where the international community has the opportunity to work together to find ways to expand access to the benefits of space activities to more nations, but also to ensure that the space environment is preserved and protected for use by future generations. Herein, the Space Debris Guidelines also deserve a mention. Drafted by the Inter-Agency Space Debris Coordination Committee (IADC), the Guidelines were subsequently adopted into the COPUOS Space Debris Mitigation Guidelines. According to Larsen, the IADC Space Debris Mitigation Guidelines are the only remedial scheme yet produced with a significant positive effect on space debris accumulation. The guidelines aim to mitigate the adverse consequence of space debris by identifying and publishing known ways to mitigate space debris. The guidelines have been influenced states, which are responsible under Article VI of the OST to authorize, supervise, and police their generation of space debris and to hold operators responsible for debris.

In its Compendium on Mechanisms adopted by States and International Organizations in relation to non-legally binding United Nations instruments on outer space, COPUOS traces the impact of voluntary rules on state behavior.

III. National Laws
The legislative and policy instruments of states are an important source for regulating outer space activities. According to Lyall and Larsen, much practical space law develops within the varied municipal legal systems of the world, particularly those of space-active states. As per the Working Group on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space, national laws of States are backed by "the need to fulfill obligations under treaties to which a State had become a party, the need to achieve consistency and predictability in the conduct of space activities under the jurisdiction of the State, and the need to provide a practical regulatory system for private sector involvement.” By enacting national laws, States fulfill several objectives and obligations.

First, the enactment of national laws fulfills the responsibility of States to comply and adopt rules of international space law. In other words, national space law is seen as the primary vehicle for implementing international law, principles, and guidelines. And more and more states adopt regulatory measures as part of their international responsibility to license and oversee national space activities, including commercial actors. Second, in terms of the responsibility to monitor, license, and regulate activities of the non-state actors (under OST, Liability Convention, Debris Guidelines, etc.), the national rules to that effect, fulfill a part of this responsibility of States. Third, States are required to report and publish national rules to ensure transparency in the conduct of their activities in outer space. The Space Security Index (SSI) counts national state policies, strategies, and laws under its core indicator on Outer Space Governance. The SSI Report (2019) provides, the development and publication of national policies and the strategies to implement them are conducive to greater transparency and predictability of space activities. The exercise helps describe the principles and objectives of national space actors concerning access to and use of space. Fourth,  international tr eaties and resolutions, expressly or otherwise, require states to cooperate, contribute, respond, and comply by adopting national rules. Under the COPUOS Debris Guidelines for instance, states are required to implement the Guidelines at the national level through “short to medium-term policy solutions in space debris mitigation”. Similarly, under the Long-Term Sustainability Guidelines, states are required to formulate national rules in accordance with the objectives of space sustainability. Fifth, the scope of the expression of national strategies and laws of States is of prime importance to all space actors. The expression would also cover the bilateral agreements between states and the cooperation measures adopted by states with International Organizations.

Although individual States enact legislative frameworks per their constitutional processes and security considerations, the structure and content of these rules are modeled primarily on the international space treaties and other instruments of voluntary and non-binding nature. In some instances, national legislative frameworks cite the reasons for enactment. Take the example of the Space Affairs Act (South Africa, 1993). Under the Act, the general policy of the State is required to “meet all the international commitments and responsibilities of the Republic in respect of the peaceful utilization of outer space, to be recognized as a responsible and trustworthy user of outer space, for controlling and restricting the development, transfer, acquisition, and disposal of dual-purpose technologies, in terms of international conventions, treaties and agreements entered into or ratified by the Government of the Republic”.

The COPUOS, to guide the adoption of uniform national laws, has encouraged the formulation of model national laws/frameworks. Few notable ones are the Draft Model Law on the National Space Legislation of the International Law Association (NSL:2010), the Project 2001 Plus “Building Blocks” for National Space Laws (2004), the GA Recommendations on national legislation relevant to the peaceful exploration and use of outer space (2013), and Building Blocks for the Development of an International Framework on Space Resource Activities, 2019 (Building Blocks). The GA Recommendations include the core elements for consideration by States in the enactment of regulatory frameworks for national space activities. These include;

 * 1) The scope of space activities to be targeted by national regulatory frameworks (example, the launch of objects into and their return from outer space, the operation of a launch or re-entry site and the operation and control of space objects in orbit; design and manufacture of spacecraft, the application of space science and technology, and exploration activities and research);
 * 2) -The responsibilities of States, as a launching State, as a State responsible for national activities in outer space, for the continuous supervision of space activities by non-governmental entities in the event of the transfer of ownership or control of a space object in orbit, etc.; and
 * 3) The constitution of competent national authority for granting authorization for space activities with conditions for authorization be consistent with the international obligations of States (treaties on outer space, and other relevant instruments, the national security, and foreign policy interests of States, Space Debris Guidelines, etc.).

As mentioned above, national laws and strategies are integral to the working of international space rules. The enactment of space laws enables States to set foot as partners or contributors towards many of the space activities, including research, collaboration, and development. On several occasions, these laws also stand challenged, with their provisions contested on incompatibility, vagueness, or ineffectiveness. Few studies aim to measure the progress levels in the area of legislative and policy interventions. Lindgren for instance, makes a compliance assessment based on the criteria of advanced, intermediate, and emerging space nations. Advanced states including those that have historically been active in space and which have significant space programs (United States, Russia, European Union). The intermediate states include those that may have not been active historically and are in the process involved in expanding their investments and activities in space (South Korea, Brazil). The emerging spacefaring states are those building the foundations of their space activities for future growth (this classification does not cover all states in relation to space law and activities).

B. Core Principles and Concepts
The above-mentioned sources of outer space law speak of the cardinal principles of space governance. The OST and the Principles Declaration for instance, have gained universality. The OST, in particular, is advanced as a binding instrument of international law for all states, including those that were originally not a party to it or have not yet acceded to it. As mentioned previously, the OST principles are advanced as the of space law.

In this regard, Sachdeva refers to the five precepts that have attained universal validity and are like jus cogens norms. According to Sachdeva, the first precept treats "outer space as the province of mankind which is neither open to appropriation by sovereignty, etc., nor divisible by borders.” The second precept relates to “freedom of access to any and every part of the Outer Space, to all states without discrimination, let or hindrance, for exploration and peaceful uses of Outer Space and celestial bodies.” The third precept relates to the “international responsibility of states erga omnes for the consequences of its activities, whether by governmental agencies or non-governmental entities or juridical nationals, and liability for any damage caused as a result of the conduct of such activities.” The fourth precept relates to “prohibition on placement of nuclear weapons or weapons of mass destruction in orbit around the earth.” The last is the principle of "Rescue and Return of Astronauts and Return of space objects to the state of registry.” The developments in international and national space laws, over the years, have largely been shaped by principles and concepts which can be referred to as the core principles including "space security," "use of space for peaceful purposes," "space as the province of mankind," "non-appropriation," "long-term sustainability," "liability for damage caused in outer space", "peaceful settlement of space disputes", "international cooperation", etc. Each of the above-mentioned principles and concepts requires elaboration, particularly the following six;

I. Space Security
Outer space constitutes a major concern in terms of security and long-term sustainability. Security in the context of outer space, is a matter of concern for states and the international community. According to Sheehan, space security is an international security concept and relates to effective international governance of the space environment. Traditionally, the term “space security” was associated with the military security of states (still the predominant understanding of the term). Today, the scope of "space security" is wider, bringing other crucial issues to the front. To Gandhi, the safety and security of space assets assume paramount importance today, considering the exercise of unlimited freedom by States. This broader framework is represented in the recent Space Security Index Report (2019), according to which, space security is not the interests of particular national or commercial entities, but the security and sustainability of outer space as an environment that can be used safely and responsibly by all. This definition covers as part of the agenda (a) sustainability of the unique outer-space environment, (b) the physical and operational integrity of human-made objects in space and their ground stations, and (c) security on Earth from threats and natural hazards originating in space.

Under the theme “space security” as mentioned above, national policies, guidelines, and resolutions like the No First Placement of Weapons in Outer Space, Practical Measures For The Prevention of An Arms Race In Outer Space (2019), Space 2030 Agenda , Guidelines for the Long-term Sustainability of Outer Space Activities (LST Guidelines) , Best Practices For Sustainable Lunar Activities , assume great importance. International deliberation is focused on addressing the technical issues related to the international governance of outer space security, including questions about the placement of conventional weapons or use of force in outer space, means of international cooperation and universal access, the long-term sustainability of the space environment, space traffic management, and such emerging issues as the utilization of space-based mineral resources( Space Security Index Report, 2019). Other concerns include the placement of large constellations and mega-constellations in outer space, including the serious congestion of the low Earth orbit, which is preventing developing countries from having equitable access to that orbit, the over-occupation of frequencies assigned by the ITU, and the risks of impinging on national sovereignty and other regulatory inconsistencies.

II. Peaceful Purposes
The principle use of space for peaceful purposes is a central feature of international space law. To put it differently, maintenance of space for peaceful purposes is the leading challenge of international space law. In Threats to Peaceful purposes of Outer Space: Politics and Law, the authors underline the historic and contemporary relevance of the principle. The principle, speaks of the horrors of World War II and the appearance on the world stage of nuclear and other weapons with significantly higher potential for destruction. Second, it represents the political will of the two superpowers, among all others, to prefer international diplomacy and not to extend the then-existing rivalries to a new field. Third, it represents the voice of the newly independent countries and other non-spacefaring powers to protect their future interests in outer space. Fourth, it speaks of the value of multilateralism as the better option for peace, security, and prosperity of all. To many others, the principle is fundamental in addressing the growing risk of an arms race in outer space, including the advancement in anti-satellite (ASAT) technology and the growing dependence on satellites from a civil and military perspective.

References to the principle have been made in the Principles Declaration, Article IV of the OST which expressly outlaws “the establishment of military bases, installations, and fortifications, the testing of any weapons and the conduct of military manoeuvres on celestial bodies.”. The Moon Agreement, under Article 3 provides, "the Moon shall be used by all States Parties exclusively for peaceful purposes…Any threat or use of force or any other hostile act or threat of hostile act on the Moon is prohibited. It is likewise prohibited to use the Moon to commit any such act or engage in any such threat about the earth, the Moon, spacecraft, the personnel of spacecraft or man-made space objects". Notable resolutions also include the GA Resolution No First Placement of Weapons in Outer Space reaffirming the importance and urgency of the objective to prevent an arms race in outer space and the willingness of States to contribute to reaching this common goal. On the subject matter of the Resolution, Liu and Tronchetti write, "it is the first time that the General Assembly has passed a resolution addressing a specific Prevention of an Arms Race in Outer Space (PAROS) issue, namely the (prohibition of) placement of weapons in space. It indicates that PAROS remains a central topic in the agenda of States and its controversial adoption demonstrates that States maintain substantial differences in the approach to enhance the security of space objects." Other additions include the emphasis on transparency and confidence-building measures (CBM) in outer space activities and the encouragement to all States to uphold as appropriate a political commitment not to be the first to place weapons in outer space. The more recent Resolution on Practical Measures for the Prevention of An Arms Race in Outer Space (2019) reaffirms that an arms race in outer space would be a grave threat to international peace and security. The Resolution urges Member States, particularly those with major space capabilities, to contribute actively to the prevention of an arms race in outer space to promote and strengthen international cooperation in the exploration and use of outer space for peaceful purposes. The Resolution further supports the agenda for a binding legal regime to prevent the weaponization of outer space.

III. Province of Mankind and Benefits
The OST explicitly confirms the equality of all States under international law, regardless of their degree of economic or scientific development. According to Trombly, the notion of outer space as a resource for all has been recognized in several international agreements. Article IX of the OST provides, “in the exploration and use of outer space, including the Moon and other celestial bodies, State 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, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other State Parties to the treaty”. Article IX of the OST "stands as a broad obligation of States and necessitates good faith on the part of all parties in space activities with due regard to the corresponding interests” of other States. According to Hobe and Man, all States, in light of the OST, must be presumed to have an equal interest in regulating the regime of natural resources in outer space for exploitation by their citizens or through space objects launched on their registry.

IV. Non-appropriation
The principle of non-appropriation is a corollary to outer space as the province of mankind. The principle has been emphasized in several binding and non-binding rules on outer space. Article II of the OST provides, “outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use of occupation, or any other means”. The scope of Article II of the OST has been subject to two divergent opinions. On the one hand, it prohibits any exclusive rights over space and celestial bodies. This view designates outer space as the province of all mankind or international commons. The other view suggests that the provision, i.e., Article II, is open-ended. This view means that the provision is unclear - and consequently, it could not be considered an explicit prohibition as it does not, in a clear way, formulate a ban on specific uses. According to Neto, outer space is an example of global commons i.e. a resource domain to which all nations have access, but none has the right to claim sovereignty. Further, outer space is an international territory, where activities should be conducted for the benefit and interest of all nations, irrespective of their degree of economic and scientific development. The OECD Sustainability Report (2020) emphasizes the geographic, social, and intergenerational dimensions of equitable access as being integral to the principle of non-appropriation.

In addition to the OST, the Moon Agreement, the principle of non-appropriation applies to celestial bodies. Article 11 of the Agreement provides, “the Moon and its natural resources are the common heritage of mankind…The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means”. In essence, the principle “prohibits claims to ownership in outer space.” The principle is also emphasized in the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, taking the Needs of Developing Countries, 1997 (i.e., the Benefits Declaration), and the Guidelines on National Systems.

V. Long Term Sustainability
Long term sustainability means “the ability to maintain the conduct of space activities indefinitely into the future in a manner that realizes the objectives of equitable access to the benefits of the exploration and use of outer space for peaceful purposes, in order to meet the needs of the present generations while preserving the outer space environment for future generations”. The responsibility for the sustainable use of outer space rests on all space actors, including state and non-state. In the words of Brachet, it is the responsibility of national governments, regional and international organizations, and commercial operators to find a common approach to the sustainable use of outer space. To Martinez, space sustainability is a global challenge that can be addressed if all countries act collectively.

On the part of COPUOS, the Space 2030 Agenda invests in a comprehensive understanding of space sustainability. The Agenda includes the commitment of States and other actors around four pillars of space economy, space society, space accessibility, and space diplomacy .The core objectives, as outlined in the Agenda are (1) Enhancing space-derived economic benefits and strengthening the role of the space sector as a major driver of sustainable development, (2) Harnessing the potential of space to solve everyday challenges and leverage space-related innovation to improve the quality of life, (3) and improving access to space for all and ensuring that all countries can benefit socioeconomically from space science and technology applications and space-based data, information, and products, thereby supporting the achievement of the Sustainable Development Goals.

In 2019, the COPUOS Working Group on the Long-Term Sustainability of Outer Space Activities adopted 21 Voluntary Guidelines on the sustainable use of Outer Space. The LST Guidelines include sub-agendas including the sustainable space utilization and sustainable development on Earth, Space Situational Awareness (SSA), weather, and regulatory regime and guidance for actors in space. According to Martinez, the LST guidelines address the policy, regulatory, operational, safety, scientific, technical, international cooperation, and capacity-building aspects of space activities. Further, they are based on a substantial body of knowledge and the experiences of States, international intergovernmental organizations, and relevant national and international non-governmental entities. The LTS guidelines support international organizations and countries to develop policies that “avoid causing harm to the outer space environment and the safety of space operations.” The LST Guidelines have been referred as "foundational for the safe and responsible use of outer space”. The LST agenda and the 2019 Guidelines are shaping the adoption of specific standards by space actors. The Finland Act on Space Activities (2018) for instance, under Section 10 provides “space activities shall be carried out in an environmentally sustainable manner and promotes the sustainable use of outer space. In its application for authorization, the operator shall assess the environmental impacts of the activity on the Earth, in the airspace and in outer space and present a plan for measures to counter or reduce any possible adverse environmental impacts”. Similarly, other governments have adopted legislative frameworks addressing the sustainability agenda. Contributions are also being made by non-state actors. The Space Safety Coalition for instance, adopted the document containing the Best Practices for the Sustainability of Space Operations. The document is defined as a living set of best practices to address gaps in current space governance and promote better spacecraft design, operations, and disposal practices aligned with long-term space operations sustainability. The document lists the following, namely;

 * 1) Spacecraft owners, operators, and stakeholders should exchange information relevant to safety-of-flight and collision avoidance;
 * 2) In selecting launch service providers, space operators should consider the sustainability of the space environment;
 * 3) Mission and constellation designers and spacecraft operators should prioritize space safety when designing architectures and operations concepts for individual spacecraft, constellations and/or fleets of spacecraft; and
 * 4) Spacecraft operators should adopt space operations concepts that enhance the sustainability of the space environment.

In short, the sustainability agenda is contributing towards extensive research and development of international and national standards on the aforementioned concerns.

VI. International Responsibility and Cooperation
International responsibility vis-à-vis outer space brings the focus on (1) the rule-making authority of states (including the making and content of national space law frameworks and strategies), (2) The responsibility of states for the activities conducted in outer space (including regulation of activities of non-states, (3) The responsibility to cooperate towards the formation of rules concerning outer space (including collaboration with other space actors, (4) The responsibility to comply and coordinate.

On the rule-making powers of states, Hobe and Man write, “no single state has at all jurisdiction on this question as outer space, celestial bodies and thereby also space resources are not subject to national jurisdiction”. Further, the role of municipal legislation in this context should be limited to ensuring that State nationals adhere to the international framework.” On international responsibility for activities in outer space, Article VI of the OST provides, “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 as outlined in the present Treaty”. Article VI of the OST is interpreted as being distinct from the traditional concept of state responsibility, which attributes responsibility on states for the acts committed by them. Under the OST, the responsibility of a State can arise for space activities undertaken by non-governmental entities, as long as they qualify as national activities in outer space.

The responsibility to comply, coordinate, and cooperate includes the general responsibility to abide by rules of international law. The OST, under Article III provides, “State Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding”. Article III can be listed as a more general kind of provision. Article I of the OST, on the other hand, speaks of a specific context. It states, “there shall be freedom of scientific investigation in outer space…and States shall facilitate and encourage international cooperation in such investigation”. Another example is the Resolution No First Placement of Weapons in Outer Space. Under the international space law framework, the requirement for compliance, cooperation, and coordination also applies to non-state entities.

The above-mentioned developments and discussions explain how the six principles constitute an integral part of international space law, shaping not just the way space rules are made, but also how they are perceived and applied.

C. Relation to Other Fields of International Law
A fascinating area of study is the intersection of space rules with other legal rules including those under environmental law, human rights law, disaster management law, and climate change law. These intersections are leading to the creation of new concepts, strategies and institutional mechanisms. At the same time, they uncover the gaps in international rules.

In the case of sustainable development for instance, efforts have been made to extend the use of space technology and resources towards attainment of various development goals. In the Resolution on International cooperation in the peaceful uses of outer space (2021), the GA emphasized on the need "to contribute to an orderly growth of space activities favorable to sustained economic growth and sustainable development in all countries, including strengthening sustainable spatial data infrastructure at the regional and national levels and building resilience to reduce the consequences of disasters, in particular in developing countries".

In the case of human rights and space law, a strong case has been advanced for the application of existing international human rights standards to outer space and the utilization of space technology and other benefits for the fulfillment of human rights objectives. Many have spoken of the need to extend international human rights instruments including the Universal Declaration on Human Rights (UDHR) to outer space. According to Tjandra, the proliferation of government and commercial activities raises important legal questions about the duties of States to observe and protect human rights in outer space. First, do human rights obligations apply extraterritorially to outer space? Second, if the answer to the former is yes, then what are those rights and to what extent are the rights modified in their application to space? To what extent are human rights universal? More specifically, does the right to life apply extraterritorially to impose obligations on States in their activities in outer space? According to Bonilla, in the advent of private-funded settlements on Mars, human rights under the UDHR will have to be protected. These include the right against arbitrary detention (Article 9), the right to privacy (Article 12), the right to nationality (Article 15), the right to marriage and family (Article 16), and the right to freedom of assembly and association (Article 20). Others proposals emphasize the need for a resolution to recognize outer space as "conflict-free for the enjoyment of fundamental rights and freedoms as enumerated in the Universal Declaration of Human Rights".

On the application of space benefits for human rights, the authors of Slavery from Space advocate for the use of high-resolution satellite remote sensing for the investigation of human rights abuses, particularly slavery. As expressed, “by using remotely sensed data, and associated geospatial science and technology, the lack of reliable and timely, spatially explicit and scalable data on slavery activity that has been a major barrier could be overcome. Indeed, this is just one of many examples of how crucial remotely sensed data are to achieving a more sustainable world”.

Summary: Space Law
Outer space law is a unique framework of international law. Its strength is its reliance on a set of higher principles and consensus-based development of rules. However, in its bid to regulate the challenges concerning outer space, it requires innovative reforms. In this regard, the commonly advanced views on space law and related reforms include that there should be reforms in the existing treaty frameworks, either through amendments to existing treaties or through the adoption of new ones. (to incorporate provisions for dispute resolution, human rights, commercialization, disarmament, space habitat, land and property rights, etc.). That there should be more clarity on the responsibility of States towards the treaties they are not a party to (example, Moon Agreement). Some of the questions concern the impact of soft laws on state behavior, and the need for uniformity in national space laws.

Further Readings

 * R. Venkata Rao, V. Gopalkrishnan, Kumar Abhijeet (eds.), Recent Developments in Space Law: Opportunities & Challenges (Springer 2017).
 * Francis Lyal, Paul B. Larsen, Space Law: A Treatise (2009).
 * David Lindgren, An Assessment Framework for Compliance with International Space Law and Norms : Promoting Equitable Access and Use of Space for Emerging Actors (Springer 2020)
 * Tommaso Natoli, Alice Riccardi (EdS.), Borders, Legal Spaces and Territories in Contemporary International Law Within and Beyond (Springer 2019).
 * Annette Froehlich, Vincent Seffinga (Eds.), The United Nations and Space Security Conflicting Mandates Between UNCOPUOS and the CD (Springer 2020).
 * Fabio Tronchetti, Th e Exploitation of Natural Resources of the Moon and Other Celestial Bodies: A Proposal for a Legal Regime (MNP 2009).
 * Linda Dawson, The Politics and Perils of Space Exploration Who Will Compete, Who Will Dominate? (Springer-Praxis 2021).
 * Annette Froehlich (Ed.), A Fresh View on the Outer Space Treaty (Springer-ESPI 2018).
 * Doo Hwan Kim, Global Issues Surrounding Outer Space Law and Policy (IGI Global 2021).
 * Albert K. Lai, The Cold War, the Space Race, and the Law of Outer Space Space for Peace (Routledge 2021)
 * Kumar Abhijeet, National Space Legislation for India Proposal for a Draft Framework (Springer 2020).
 * Ram S. Jakhu, Joseph N. Pelton (Eds.), Global Space Governance: An International Study (Springer 2017).
 * Imre Anthony Csabafi, The Concept of State Jurisdiction in International Space Law: A Study in the Progressive Development of Space law in the United Nations (MNP 1971).
 * Thomas Gangale, How High the Sky? The Definition and Delimitation of Outer Space and Territorial Airspace in International Law (Brill Nijhoff 2017).
 * Fabio Tronchetti, Fundamentals of Space Law and Policy (Springer 2013).
 * Francis Lyall and Paul B. Larsen, Space Law: A Treatise (Ashgate 2009).
 * Annette Froehlich (Ed.), Assessing a Mars Agreement Including Human Settlements (Springer-ESPI 2021).
 * Ram S. Jakhu (Ed.), National Regulation of Space Activities (Springer 2010).
 * Michael Sheeha, The International Politics of Space (Routledge 2007).

Source II

 * Kostenko, Inesa, "Current Problems and Challenges in International Space Law: Legal Aspects. Advanced Space Law", Volume 5, 48-57 (2020). https://doi.org/10.29202/asl/2020/5/5
 * Jonathan Tjandra, "Universal Human Rights: An Analysis of States' Obligations under the Right to Life in Outer Space", 44 J. Space L. 228 (2020).
 * Shadi A. Alsdaifat, "Who Owns What in Outer Space: Dilemmas regarding the Common Heritage of Mankind", 2018 Pecs J. INT'l & EUR. L. 21 (2018).
 * Cyril E. S. Horbfo, "Current Aspects of Space Law", Vol. 27 The Modern Law Review (Jan 1964).
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 * Brian G. Chow, "Space Traffic Management in the New Space Age", Vol. 14 No.4 Strategic Studies Quarterly (Winter 2020).
 * Isabel Feichtner, "Mining for humanity in the deep sea and outer space: The role of small states and international law in the extraterritorial expansion of extraction", Leiden Journal of International Law (2019).
 * D. Goedhuis, "Reflections on the Evolution of Space Law". Available at https:/www.cambridge.org/core/terms. https://doi.org/10.1017/S0165070X00023408
 * Courtney Trombly, "The Space Race: Futile Fighting for Finite Findings", 31 ALB. L.J. Sci. & TECH. 118 (2021).
 * Katherine Latimer Martinez, "Lost in Space: An Exploration of the Current Gaps in Space Law", Vol. 11 Issue 2 Article 4 Seattle Journal of Technology, Environmental and Innovation Law (2021).
 * Ranjana Kaul, Recent Space Reforms in India: Perspectives on Policy and Law, 44 J. Space L. 450 (2020).
 * Joanne Irene Gabrynowicz, "Space Law: Its Cold War Origins and Challenges in the Era of Globalization", 37 Suffolk U. L. REV. 1041 (2004).
 * F. B. Schick, "Problems of a Space Law in the United Nations" Vol. 18 International and Comparative Law Quarterly (July 1964).
 * PJ Blount, "SPACE SECURITY AND THE LAW OF INTERNATIONAL SPACE COOPERATION: THE NEED FOR LEADERSHIP AND COORDINATION", Vol. VIII - IX Indian Journal of Air and Space Law (2019-2020).
 * Ram S. Jakhu, Kuan-Wei Chen, Bayar Goswami, "Threats to Peaceful Purposes of Outer Space: Politics and Law", 18:1 Astropolitics 22-50 (2020).

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Public International Law/Space Law