6th European Conference - Academic Conferences

Julie Ryan and Daniel Ryan
“Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer
Space” in 1963 (Wolter 2003, p. 4) The Declaration has since been supplemented by three
resolutions laying down the legal principles applicable to the exploration and exploitation of outer
space, a “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,” and five treaties and agreements governing the use of space and space-related activities.
(United Nations Treaties and Principles on Space Law ) These treaties, agreements and principles
are collectively known as the “United Nations Treaties and Principles in Outer Space.” Nuclear
weapons are forbidden, but other weapons (kinetic weapons, lasers) are permitted. (Although nuclear
weapons are banned, it is recognized that some uses of nuclear power are needed in space, the
Treaties and Principles provide for safety in its use, mitigation of risks, and liability for states that fail to
control the nuclear power or its sources.)
The very nature of outer space is such that spacecraft do not have the same ability to control their
flight paths that aircraft operating within the atmosphere have, (Braeunig 1997-2008) and the cost of a
space program that could interdict is large, (Fox 2007) so a rule requiring interdiction of belligerents’
weapons in space by the neutral does not make sense. Spacecraft and satellites in orbit pass above
both belligerents and neutrals and cannot avoid doing so, being subject to the laws of celestial
mechanics. Accordingly, the notions of territorial control that apply in the laws of the sea and the
regulation of aircraft, cannot apply in outer space. If neutrals were required to exercise control over
the use of outer space in the same way they exercise control over air traffic in the skies above their
territories, it would be practically impossible to maintain neutrality at all.
Similarly, recognizing the impossibility of neutrals interdicting belligerent Internet use of the neutral’s
information infrastructure without prohibitive costs or unacceptable consequences for the neutral’s licit
use of its own infrastructure: "a state may not be able to prevent [cyber] attacks from leaving its
jurisdiction unless it severs all connections with computer systems in other states." (Brown 2006, p.
210) This indicates that the appropriate rule for Internet use is more like the rule for space than the
rule for air or land traffic, even when the use involves cyber weapons or information useful to the
belligerent for military purposes (telemetry, GPS, weather data, etc.). Such acceptable use would, of
course, apply to all belligerents, because the rules of neutrality prohibit the neutral state favoring one
side in any way over the other side. (Brown 2006, p. 211)
5. Conclusion
Phillip Jessup, in 1936, concluded, "There is nothing new about revising neutrality; it has undergone
an almost constant process of revision in detail." (Jessup 1935-6, p. 156. Cited in Walker 2000, p.
109) With the advent of cyberwar, rules governing neutrality during periods of belligerency need to be
reconsidered and revised yet again. The realities of the Internet age mean that weapons as well as
information can move across communications networks in ways that were not possible or foreseeable
during the earlier evolution of the laws of war and neutrality. Yet the paths that those weapons will
take as they traverse the Internet on the way to their intended targets are beyond the knowledge or
control of the belligerents that launch them. Detection, identification and interdiction by neutrals
across whose territories the weapons may pass are impractical without sacrificing the utility of the
networks for licit use by the neutrals and others, hence impossible.
However, it is the only the details of the rules of neutrality that must change. Neutrals will not be
required to do what they cannot do, and will not be subject to attack when they do not detect, identify
and interdict the flow of weapons through their information infrastructures. The key principle of
neutrality requiring that neutrals do not knowingly and willingly participate in the belligerency, or favor
one side over the other, can and must be retained.
Disclaimer: Opinions expressed in this paper are those of the authors and do not represent positions
of George Washington University, or of the Information Resources Management College, the National
Defense University, the Department of Defense, or the United States Government.
References
The Avalon Project: Documents in Law, History and Diplomacy. Yale Law School, Lillian Goldman Law Library.
http://avalon.law.yale.edu/default.asp.
Boot, Max (2006) War Made New: Technology, Warfare, and the Course of History, 1500 to Today. New York:
Gotham Books.
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