The Tallinn Manual and Space Law

Malicious cyber activities have become a normal part of our lives. Not only do cyber events appear regularly in the news, but they also capture the imagination of viewers watching movies and television, and provide endless intrigue in literature. Many of these fictional scenarios involve major cyber breaches that lead to catastrophic consequences, often involving armed conflict between countries. Could cyber-attacks happen in the outer space environment? Could satellites be hacked? Or even worst, could launchers be hacked, deviated and used as weapons? Are those issues studied? Let’s have a look at the Tallinn Manual and its relationship with Space Law.

The Tallinn Manual (originally entitled the Tallinn Manual on the International Law Applicable to Cyber Warfare) is an academic, non-binding study on how International Law (in particular the jus ad bellum and international humanitarian law) applies to cyber conflicts and cyber warfare. Between 2009 and 2012, the Tallinn Manual was written at the invitation of the Tallinn-based NATO Cooperative Cyber Defence Centre of Excellence by an international group of approximately twenty experts. In April 2013, the manual was published. The Tallinn Manual is not an official document, but instead an expression of opinions of a group of independent experts acting solely in their personal capacity.

The practice of producing non-binding manuals on the application of international humanitarian law is not new. The Tallinn Manual followed in the footsteps of similar efforts, such as the International Institute of Humanitarian Law’s San Remo Manual on International Law Applicable to Armed Conflicts at Sea and the Harvard Program on Humanitarian Policy and Conflict Research’s Manual on International Law Applicable to Air and Missile Warfare.

History of the Tallinn Manual

Cyber operations began to draw the attention of the international legal community in the late 1990s. In late 2009, the Cooperative Cyber Defence Centre of Excellence convened an international group of legal scholars and practitioners to draft a manual addressing the issue of how to interpret international law in the context of cyber operations and cyber warfare. As such, it was the first effort to analyse this topic comprehensively and authoritatively and to bring some degree of clarity to the associated complex legal issues.

Jus bellum justum

The Just war theory is a doctrine, also referred to as a tradition, of military ethics studied by military leaders, theologians, ethicists and policy makers. The purpose of the doctrine is to ensure war is morally justifiable through a series of criteria, all of which must be met for a war to be considered just. The criteria are split into two groups: “right to go to war” (jus ad bellum) and “right conduct in war” (jus in bello). The first concerns the morality of going to war, and the second the moral conduct within war. Recently there have been calls for the inclusion of a third category of just war theory, jus post bellum, dealing with the morality of post-war settlement and reconstruction.

Jus ad bellum

Jus ad bellum (Latin for “right to war”) is a set of criteria that are to be consulted before engaging in war in order to determine whether entering into war is permissible, that is, whether it is a just war. Jus ad bellum is sometimes considered a part of the laws of war, but the term “laws of war” can also be considered to refer to jus in bello, which concerns whether a war is conducted justly (regardless of whether the initiation of hostilities was just). Jus ad bellum refers to “legitimate reasons a State may engage in war”. These rules focus on certain criteria for what makes a war just.

Article 51 of the U.N. Charter clarifies: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations”. An international agreement limiting the justifiable reasons for a country to declare war against another is concerned with jus ad bellum. In addition to bilateral non-aggression pacts, the twentieth century saw multilateral treaties defining entirely new restrictions against going to war. The principles of jus ad bellum are the following: proper authority and public declaration, just cause / right intention, probability of success, proportionality, and last resort.

Jus in bello

The law of war or jus in bello refers to the component of international law that regulates the conditions for war (jus ad bellum) and the conduct of warring parties (jus in bello). Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of international law. Among other issues, modern laws of war address declarations of war, acceptance of surrender and the treatment of prisoners of war, military necessity, along with distinction and proportionality, and the prohibition of certain weapons that may cause unnecessary suffering. The law of war is considered distinct from other bodies of law, such as the domestic law of a particular belligerent to a conflict, which may provide additional legal limits to the conduct or justification of war.

Military necessity, along with distinction, and proportionality, are three important principles of international humanitarian law governing the legal use of force in an armed conflict. Military necessity is governed by several constraints: an attack or action must be intended to help in the defeat of the enemy; it must be an attack on a legitimate military objective, and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.

Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and civilians.

Proportionality is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must make sure that the harm caused to civilians or civilian property is not excessive in relation to the concrete and direct military advantage expected by an attack on a legitimate military objective.

The Tallinn Manual and Space Law

Though the spatial differentiation between the law governing airspace and space is not precisely defined, the differences between the two regimes are quite distinct, particularly with respect to the exercise of sovereign authority. The Tallinn Manual drew a distinction between space enabled cyber operations, to which space law has only limited application, and cyber-enabled space operations.

Rule 58 notes the difference in legal proscriptions on the use of cyber on the Moon and other celestial bodies and in space more generally. The Rule 58 states “(a) cyber operations on the Moon and other celestial bodies may be conducted only for peaceful purposes. (b) Cyber operations in outer space are subject to international law limitations on the use of force”. Offensive cyber capabilities, according to the Tallinn Manual, cannot be placed on the Moon, whereas no similar prohibition exists for outer space more generally. With respect to space more generally, the proscription is on the use of cyber capabilities and is governed by the same standards as on Earth, including the U.N. Charter.

Rule 59 says “(a) A State must respect the right of States of registry to exercise jurisdiction and control over space objects appearing on their registries. (b) A State must conduct its cyber operations involving outer space with due regard for the need to avoid interference with the peaceful space activities of other States”. In accord with this rule, the Experts of the Tallinn Manual agreed that states have jurisdiction over their satellites and other space objects and persons thereon, but also noted that this jurisdiction might not be exclusive. For example, if the activities of one state’s space objects affect another state’s space objects, those states may share concurrent jurisdiction.

Finally, respecting the responsibilities of states for cyber activities in outer space, Rule 60 says “(a) A State must authorize and supervise the cyber activities in outer space of its non-governmental entities. (b) Cyber operations involving space objects are subject to the responsibility and liability regime of space law”. As more and more private entities begin to operate in outer space, including placing persons in space, this rule will increase in importance. The rule follows treaty law in describing the governance regime as “national” in nature. States must accept responsibility to monitor and approve the actions of non-government entities.

Concluding remarks on the Tallinn Manual and Space Law

The Tallinn Manual is the result of a three-year effort to examine how extant international law norms apply to this new form of warfare. The Tallinn Manual pays particular attention to the jus ad bellum, the international law governing the resort to force by States as an instrument of their national policy, and the jus in bello, the international law regulating the conduct of armed conflict (also labelled the law of war, the law of armed conflict, or international humanitarian law). Related bodies of international law, such as the law of State responsibility and the Law of the Sea, are dealt within the context of these topics.

As a conclusion, analysing the Tallinn Manual and Space Law, states are generally responsible for their actions under the Space Law regime which incorporates some of the principles from the Articles of State Responsibility. The continued expansion into space will include the increased employment of cyber capabilities. The law surrounding the space regime was formulated when few states had access to space and is fairly permissive, particularly when compared to the rules governing airspace. As more states, including private entities within those states, begin to conduct operations including cyber operations in outer space, the permissive regime may give way to a more limiting regime. That is what we can say on the Tallinn Manual and Space Law.