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26.1
The Law of Armed Conflict – in the Dark
Laurie R. Blank
Clinical Professor of Law and Director, International Humanitarian Law Clinic, Emory University School of Law.

With thanks to The U.S. Army Judge Advocate General’s Legal Center and School and the Military Law Review, this Essay builds on my remarks for the Sixteenth Annual Waldemar A. Solf and Marc L. Warren Chair Lecture in National Security Law in March 2023 (published as an edited transcript at 231 Mil. L. Rev. 147 (2023)).

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26.1
Digital Evidence: Facilitating what and for whom?
Rebecca Hamilton
Rebecca Hamilton is a Professor of Law at American University, Washington College of Law.

The authors would like to thank our colleagues at the Counter Evidentiary Network, colleagues at WITNESS, and partner communities whose courage continue to inspire. Our gratitude also to the editors of the Chicago Journal of International Law.

Adebayo Okeowo
Dr. Adebayo Okeowo is a human rights lawyer and currently serves as the Associate Director of Programs at WITNESS.

The authors would like to thank our colleagues at the Counter Evidentiary Network, colleagues at WITNESS, and partner communities whose courage continue to inspire. Our gratitude also to the editors of the Chicago Journal of International Law.

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26.1
Satellite Infrastructures and Law in the Making of Planetary Knowledge
Benedict Kingsbury
Vice Dean and Murry and Ida Becker Professor of Law, NYU Law School

Thanks to Moritz Schramm, Katherine Rizkalla, Jingxian Zeng, and Ming Yi for their comments on different iterations of this paper. Thanks also to the excellent Chicago Journal of International Law editors.

Yirong Sun
Research Scholar, NYU Law School

Thanks to Moritz Schramm, Katherine Rizkalla, Jingxian Zeng, and Ming Yi for their comments on different iterations of this paper. Thanks also to the excellent Chicago Journal of International Law editors.

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26.1
Digital Investigations of Systematic and Conflict-Related Sexual Violence: Practice and Possibilities
Alexa Koenig
Research Professor, University of California Berkeley School of Law; Co-Faculty Director, Human Rights Center, UC Berkeley.

The author thanks Ingrid Elliott, Lindsay Freeman, Anthony Ghaly, Gabriel Oosthuizen, Andrea Richardson, and the team at the Chicago Journal of International Law for their feedback on earlier versions of this article. Any errors are, of course, the author’s own.

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26.1
Distinction, Proportionality, and Precautions in Attacks at Sea in the New Era of the Law of Naval Warfare
James Kraska
James Kraska is the Charles H. Stockton Chair of International Maritime Law at the United States Naval War College and Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School.

I am grateful to Michael N. Schmitt, Wolff Heintschel von Heinegg, Raul (Pete) Pedrozo, and Nick Kadlec for their generous peer review comments.  

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26.1
Technology and the Law of Jus Ante Bellum
Asaf Lubin
Dr. Asaf Lubin is an Associate Professor of Law at Indiana University Maurer School of Law and a Faculty Affiliate of the Hamilton Lugar School of Global and International Studies. He is additionally an Affiliated Fellow at Yale Law School’s Information Society Project, a Faculty Associate at the Berkman Klein Center for Internet and Society at Harvard University, and a Research Associate at the Hebrew University of Jerusalem Federmann Cyber Security Research Center.

I am grateful to Rebecca Crootof for the in-depth discussions we had at the outset of this project, which were instrumental in refining my thinking on the subject. I am also grateful to the participants of the Saint Louis University Law Journal Symposium titled “Contemporary Challenges in International Humanitarian Law: Is there Hope for the International Order? for offering excellent feedback on an earlier draft. In particular I wish to thank Adi Gal, Eric Talbot Jensen, Marco Roscini, Afonso Seixas-Nunes, SJ, and Jennifer Trahan for their valuable insights. I also extend my deep appreciation to the Board of the Chicago Journal of International Law for the opportunity to contribute to this symposium and for their thoughtful feedback and editing. Finally, this symposium has brought together some of the kindest people and sharpest minds currently working at the intersection of international law and technology. It is an incredible privilege to be included among them, and I look forward to engaging with their ideas and contributions in the years to come.

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26.1
Technology and the Unique Challenges of Applying Law to the Realm of Outer Space and Space Activities
F.G. von der Dunk
Dr. Frans G. von der Dunk is the Harvey & Susan Perlman Alumni/Othmer Professor of Space Law at the University of Nebraska-Lincoln College of Law’s unique Program in Space, Cyber and National Security Law, as well as the Director of Black Holes B.V., a leading space law and policy consultancy based in The Netherlands.

For better or worse, technology at heart is—except to the extent that artificial intelligence fundamentally becomes involved—not so much a creator as a facilitator and enhancer of human acts, actions and activities, allowing them to become more effective, less costly, or sometimes even just merely feasible. Perhaps nowhere that is more pertinent then when it comes to human activities in outer space, which are still overwhelmingly conducted remotely and hence crucially dependent on technology. Given that “the law” has always been geared to address humans and their acts, actions, and activities, this gives rise to a rather special approach to maintaining and further developing a legal regime for outer space. The present Article intends to address and assess some of the most pertinent aspects of the unique body of space law from precisely this perspective, to shed some light on how “the law” would, could, and/or should handle relevant human endeavours in or with regard to outer space, in particular in the context of legal responsibilities and liabilities.

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26.1
Battlefield Evidence in the Age of Artificial Intelligence-Enabled Warfare
Winthrop Wells
Senior Manager for Programs and Policy Planning, and Programmatic Unit Officer-in-Charge, the International Institute for Justice and the Rule of Law

The author wishes to thank the editors of the Chicago Journal of International Law for the opportunity to contribute to this symposium and for their diligent work. The views expressed are those of the author alone.

A number of emerging technologies increasingly prevalent on contemporary battlefields—notably unmanned autonomous systems (UAS) and various military applications of artificial intelligence (AI)—are working a sea change in the way that wars are fought. These technological developments also carry major implications for the investigation and prosecution of serious crimes committed in armed conflict, including for an under-examined yet potentially valuable form of evidence: information and material collected or obtained by military forces themselves.
Such “battlefield evidence” poses various legal and practical challenges. Yet it can play an important role in justice and accountability processes, in which it addresses the longstanding obstacle of law enforcement actors’ inability to access the conflict-torn crime scenes. Indeed, military-collected information and material has been critical to prosecutions of international crimes and terrorism offenses in recent years.
The present Article briefly surveys the historical record of battlefield evidence’s use. It demonstrates that previous technological advances—including in remote sensing, communications interception, biometrics, and digital data storage and analysis—not only enlarged and diversified the broader pool of military data but also had similar downstream effects on the (far) smaller subset of information shared and used for law enforcement purposes.
The Article then examines how current evolutions in the means and methods of warfare impact the utility of this increasingly prominent evidentiary tool. Ultimately, it is argued that the technical features of UAS and military AI give rise to significant, although qualified, opportunities for collection and exploitation of battlefield evidence. At the same time, these technologies and their broader impacts on the conduct of warfare risk inhibiting the sharing of such information and complicating its courtroom use.

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26.1
Interplanetary Risk Regulation
Jonathan B. Wiener
William R. Perkins Professor of Law, and Professor of Environmental Policy and Public Policy, Duke University; Co-Director, Duke Center on Risk; University Fellow, Resources for the Future (RFF)

For helpful comments on prior drafts, the authors thank Larry Helfer, Erika Nesvold, Arden Rowell, and Katrina Wyman; for helpful discussions, the authors thank Dan Bodansky, Dagomar Degroot, Tyler Felgenhauer, David Fidler, Alissa Haddaji, Benedict Kingsbury, Bhavya Lal, Irmgard Marboe, Betsy Pugel, Margaret Race, Surabhi Ranganathan, Martin Rees, John Rummel, Dan Scolnic, Jessica Snyder, Phil Stern, Yirong Sun, Frans von der Dunk, Giovanni Zanalda, and participants at the Chicago Journal of International Law Symposium on “Technological Innovation in Global Governance” (January 2025); the conference on “Space Law and Earth Justice” at NYU Law School (March 2025); the Duke Space Symposium (April 2025); and the annual conference of the Society for Environmental Law and Economics (SELE) held at the School of Transnational Governance of EUI in Florence (May 2025). The views expressed in this article represent the personal views of the authors only.

Charles (Chase) Hamilton
Associate, Akin Gump Strauss Hauer & Feld LLP; Graduate Fellow of the Duke Center on Risk

Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, beyond global governance. We suggest that interplanetary risks warrant new institutions for risk regulation at the interplanetary scale. We discuss several examples, recognizing that interplanetary risks may be difficult to foresee. Some interplanetary risks may arise in the future, such as if settlements on other planets entail the need to manage interplanetary relations. Some interplanetary risks are already arising today, such as space debris, space weather, planetary protection against harmful contamination, planetary defense against asteroids, conflict among spacefaring actors, and potentially settling and terraforming other planets (whether to conduct scientific research, exploit space mining, or hedge against risks to life on Earth). These interplanetary risks pose potential tragedies of the commons, tragedies of complexity, and tragedies of the uncommons, in turn challenging regulatory institutions to manage collective action, risk-risk tradeoffs, and extreme catastrophic/existential risks. Optimal interplanetary risk regulation can learn from experience in terrestrial risk regulation, including by designing for adaptive policy learning. Beyond national and international law on Earth, the new space era will need interplanetary risk regulation.

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26.1
The Reign of Cerberus: International Law and Technological Innovation
Paul B. Stephan
John C. Jeffries, Jr., Distinguished Professor of Law, Louis F. Ryan ′73 Research Professor of Law, Senior Fellow of Miller Center of Public Affairs, and Director of the Center for International & Comparative Law, University of Virginia

This Essay sketches an informal theory of the impact of technological change on international economics, and hence international relations expressed as international law. The theory points to a policy trilemma, something that I call Cerberus in a perhaps futile attempt at an arresting metaphor. The Essay uses the trilemma to illuminate the general trends in technology policy we see playing out in China, Europe, and the United States. It argues that we have the privilege of witnessing an ongoing natural experiment in optimal technology regulation and legal policy, with no guarantee as to which approach will prevail.

Of course, like all natural experiments, the signal struggles to emerge against a background of geopolitical noise. Events and projects unrelated to policy competition might decide the game, and we might never find out what an optimal strategy may entail. Still, we can’t rule out the chance that we might learn something as the great game plays out.

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26.1
Interpretation as Creation: Article VI of the Outer Space Treaty
Charles Stotler
Assistant Prof. of the Practice of Law; Director, Center for Air and Space Law, University of Mississippi School of Law

From the launch of Sputnik I in 1957 to proposals for In-Space Servicing, Assembly and Manufacturing (ISAM) and new lunar activities such as resource utilization, advancing technology has always been a driving factor in the creation of space law. From a legal-historical perspective, the notion of law as creation should be contextualized in a broader legal-philosophical transition that began with the rise of positivism. Article VI of the Outer Space Treaty orbits unsteadily between international obligations and national implementation measures, rendering significant States’ understandings of those provisions. Our understanding of Article VI turns on perhaps the most creative legal endeavor: interpretation. Bing Cheng established Article VI as a lynchpin between international obligations and national measures by finding in its first sentence an attribution clause extending responsibility to non-governmental activities falling under the jurisdiction of States. Though Cheng’s interpretation has been accepted by scholars, and some domestic rules evidence its employ by States, the interpretation has been assailed on the basis that Cheng did not follow the strictures of the Vienna Convention on the Law of Treaties (VCLT). Codification, such as the VCLT, is itself an act of creation, which can have unintended consequences. Through the lens of Article VI, this Article explores interpretation as creation. It seeks to demonstrate that antipodal interpretations can be correct, that our determination of which interpretation to follow involves something other than a strict, positivist approach, and that the outcome of this debate may be more significant than perceived as states create a path forward for new space activities.