Speaker
Description
“War is not an independent phenomenon, but the continuation of politics by different means” wrote Prussian General Carl von Clausewitz in the 19th century. While methods, weaponry, rhetoric and most importantly the legal framework of warfare has changed over centuries, the recourse to belligerent activities is a recurring event throughout human civilization and is no stranger to mankind’s foray into space.
Whilst the number of armed conflicts has significantly declined in the 21st century, States still partake in activities whilst not as deadly, are still destined to destabilize or weaken the political integrity of other States. One such example is so-called “cyberwarfare”, where States or their agents use computer networks to conduct harmful attacks, or “cyberattacks”, against other States even in outer space (see the 1998 alleged cyber-attack on the ROSAT satellite).
New forms of warfare are to be dealt with outdated instruments, whose usefulness may naturally be put into question. This presentation explores whether the nearly century-old notion of use of force is relevant for cyberwarfare in space in three steps :
First, it considers whether the scope of the notion of the use of force extends to outer space under Article III of the Outer Space Treaty and its interaction with the controversial question of sovereignty in outer space through the existing doctrine (M. Lachs, The Law of Outer Space, 66 ; F. Von Der Dunk, The role of law with respect to future space activities, Elsevier Space Policy 12(1) 6; P.J. Blount, Innovation In Outer Space: International And African Legal Perspectives, Innovating the Law: Fifty Years of the Outer Space Treaty, 43).
Second, it seeks a definition of cyber-attacks which may enter the notion of use of force mostly on the basis of State practice, given the evermore prevalent use and support of cyber-defence units, and academic works such as the Tallin Manual On The International Law Applicable To Cyber Warfare.
Finally, it theorizes that the influence of such a notion goes beyond horizontal relations between States per the UN Charter. Reflecting the current trend of space activities moving from public to private market players, a desirable effect of the definition of an attack as a use of force in international law terms becomes relevant as a source of proof for litigation ; especially in monist States, national litigators - in liability or even insurance litigation (P. Nevill, The Oxford Handbook of the Use of Force in International Law, Military Sanctions Enforcement in the Absence Of Express Authorization?, 284) - may for instance rely on the hierarchically superior international law to assert a point of law that a situation may constitute a force majeure or not.
This is ultimately conditioned by States’ policies, as international law is mostly malleable to the will of States (M. Shaw, International Law, 5). Whether this argument is a red herring or not is an important question and platform for discussion on how to shape the future of space activities.
