This chapter addresses peace and security. It covers the prohibition of (armed) force, exceptions to the prohibition on (armed) force, UN peace operations, international humanitarian law, and the International Committee of the Red Cross.

The focus of this chapter is state responsibility. The chapter introduces the concept of state responsibility and then covers international wrongful acts, circumstances precluding wrongfulness, cessation and compliance, and diplomatic protection.

The primary purpose of Chapter 5 is to chart the two most significant and infamous disputes during the Act’s life – the 1972 railways strikes and the docks disputes. The chapter highlights the fragility of ‘depoliticised’ governing as the Act proved incapable of defusing these highly politicised, national disputes. It argues that the role of the judiciary proved to be an inappropriate and deeply problematic vehicle for ‘depoliticised’ governing in this context as rank-and-file trade unionists distrusted the courts and began to actively resist and undermine the strategy. The government was neither insulated from blame as events unfolded, nor was it able to influence them from a distance. The ‘independence’ of the judiciary – the very thing it was hoped provided the strategy its credibility – became its liability as the framework of rules became increasingly unpredictable as creative judicial interpretation caused havoc and produced unanticipated outcomes. Through analysis of newly released archival material, the chapter explores how perceptions of governmental interference were forged as tensions grew between the overarching depoliticising intentions of the Act and the distinctly politicising interventionist emergency measures that these disputes involved.

The Hague Conventions II (1899) and IV (1907), as well as the Additional Protocol to Geneva Conventions (1977), are the only conventions where spying is expressly mentioned. In fact, they define what is a spy, and mention how spies may be captured and punished – but without prohibiting this activity itself. Several experts suggest, then, that the regime applicable to traditional espionage applied to cyber-espionage. This chapter argues that things are not that simple, and that wartime cyber-espionage between belligerents escapes regulations. In fact, these instruments were conceived to apply on land, and rely on these notions of ‘zone of operations’, ‘controlled territory’ or ‘occupied territory’. However, they do not make any sense in cyber-space, which is a fifth and different domain. States could have clarified whether and how these rules applied, but failed to do so. In fact, most States opted for the definition of minimal standards of protection – i.e., compliance with the principles of humanity, necessity, proportionality and discrimination – but ignored regulation of cyber-espionage.

This chapter argues that neither the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) nor European Union law prohibits economic cyber-espionage. In fact, they still tolerate cyber-espionage on some specific grounds. On the one hand, Articles 3 (national treatment) and 39 (protection of undisclosed information) of the TRIPS do not prohibit it. This chapter argues that Article 3 and subsequent practice confirm that ‘national treatment’ only applies on the very territory of the Member State – i.e., it is not supposed to regulate the extraterritorial conduct of States – and is not intended to protect trade secrets. Then, pursuant to Article 39, States have a positive obligation: to give private persons the means to protect undisclosed information from ‘others’ – i.e., other private persons. However, States are not required to abstain from spying abroad. Furthermore, it argues that the ideals of an EU free market, loyal cooperation and a high level of competitiveness are not enough to prevent such activity either. The application of EU Directive 2016/943 does not give better results. On the other hand, under Article 73 of the TRIPS, Member States are free, ‘in time of war or other emergency in international relations’, to take any necessary measure for the protection of ‘essential security interests’. Yet, this power is more limited in peacetime. In fact, only information relating to ‘fissionable materials or the materials from which they are derived’, ‘traffic in arms ammunition and implements of war’ may be collected over this period. This means that, when essential security interests are at stake, certain forms of cyber-espionage are still conceivable.

This chapter addresses the settlement of disputes. It covers general and special rules, diplomatic methods, international arbitration, the International Court of Justice, the International Tribunal for the Law of the Sea, the panel procedures of the World Trade Organization, and the Inspection Panel of the World Bank.

This chapter addresses international criminal law. It covers the development and character of international criminal law, international criminal responsibility, prosecution and punishment of international crimes by national authorities, international crimes in domestic criminal law, international criminal courts and tribunals, the International Criminal Court and its procedures, cross-border organised crime, terrorism, and international organisations for combating crime.

This chapter demonstrates that cyber-espionage is neither prohibited, nor promoted by the UN Charter. According to a traditional ‘instrumental’ interpretation of Articles 2(4) and 51, the use of force and armed attacks must involve a specific means: weapons. However, cyber-espionage devices do not qualify as such. Alternative interpretations were proposed by experts, and the consequentialist approach is part of them. According to this view, a cyber-operation qualifies as use of force (or an armed attack) when its effects are similar to a non-cyber operation rising to the level of a use of force. If this approach is progressively gaining acceptance among States, it does not result in a prohibition of cyber-espionage either, as it fails to cause destruction. This lack of prohibition does not mean, however, that cyber-espionage is authorised. In fact, it results in significant tensions and is not endorsed by the UN Charter. Most States also acknowledge the development of intelligence programs, but without claiming a right to do so.

This chapter covers the subjects of international law and considers the concept of international legal personality and the forms it can take, how it relates to states, how it connects to recognition of intergovernmental organisations and liberation movements, and more recent forms of international legal personality.