When the sky is not safe, no other place can be safe.

- Abrar Mechmechia

I was taught to be afraid of the sky. Since I was a kid, I was afraid of the sky.

- Omar Mohammed


It is easy to think of what lies above us as a space of boundlessness, beauty, awe, freedom, imagination and wonder. Yet it is from above that threats to human life come; ethereality evading accountability. States, Militaries, Big Tech and an array of other familiar and emergent actors, are exploiting airspace and outer space to make violence and killing functional and routine. The rapid proliferation and interconnection of satellites, digital infrastructures, drones, algorithms and smartphones are forging a new nexus of civilian vulnerabilities to surveillance, targeting, tracking, traumatising and killing. ‘Patterns of life’ is the euphemism of this era. Whereas the truth is that perpetual surveillance, digital identification and targeting create present and future generations of traumatised civilians and ultimately patterns of death.

Pollution is presenting additional threats from above. In many parts of the world, the air we breathe is toxic. As a result, people suffer from painful illnesses and premature death. And there are new ecological problems related to space exploration. With the vast number of satellites in outer space, we face dilemmas such as how to clean up the space junk, how to deal with the saturation of the Earth’s orbits with satellites, and how to prevent the harms related to space exploration. In addition, the commercial exploitation of outer space and its use for military battlegrounds on the ground present threats that existing international laws cannot regulate. When we consider the possibility that future military conflicts in outer space might involve nuclear arms, we start dealing with threats to the very existence of life on Earth.

It is important not to mistake this new ecology of exposure, of the myriad ways in which citizens are rendered knowable and vulnerable, as one that involves a greater visibility of threats and therefore, intelligibility. The history of human suffering is one of the hiding and showing of victims, perpetrators and the forces of destruction, and the shifting relationship between representation, knowledge, recognition and action. In the digital era, however, the conditional relationship between seeing, believing and responding is fundamentally ruptured. There is, in sum, a fundamental crisis of representation that Law, particularly International Human Rights Law and International Humanitarian Law, is struggling to come to terms with.

This is apparent in:

  1. (1)

    The complex entanglement of threats which make it increasingly difficult to discern a focused point for interrogation and intervention;

  2. (2)

    The immediacy, scale and complexity of information and data from which threats might be identified, which serves both to overwhelm and also to render humans effectively ‘out of the loop’ in critical decision-making;

  3. (3)

    The related and massive breakdown in trust in organisations and institutions charged with protecting civilians amidst interconnected social media ecologies, in which disinformation, propaganda and psychological war enter at the weakest (least regulated) point and become globally viral; and

  4. (4)

    The obscurities of the ‘black box’ architectures that drive and support Artificial Intelligence (AI) as a means of prosecuting increasingly autonomous methods of kinetic and non-kinetic warfare.

Tinkering with the edges or trying to re-imagine and return to an earlier era when scarcer (but more visible) technologies may have made some threats easier to grasp is not going to make a substantive difference when it comes to protecting human life. Some journalists and news organisations think they can re-establish their profession—and trust in the mainstream—with fact-checking. Some militaries believe they can prevent soldiers from using smartphones on the battlefield through prohibition. Some governments claim that social media platforms can restrict horrific content through moderation. All of these responses to rapid technological change stutter as they attempt to claw back the memory of at least their once more relevant organisational or institutional vision over information and experience. Are International Humanitarian Law and Human Rights not facing the same challenges?

This special issue of the Journal of Digital War forms part of a groundbreaking proposal for a new human right to protect the freedom to live without physical or psychological threat from above. The case for and against this proposed new right has been examined in a series of international public hearings of the Airspace Tribunal, a people’s tribunal which was established for that purpose in 2018 (for full details see Illingworth and Grief’s essay in this issue).

The hearings have considered the changing environmental, cultural, social, psychological, political, military and historical definition, perception and composition of airspace. Its members (‘judges’) were an invited cross section of the general public who were involved as participants in this initiative, challenging the traditional state-centric view of how international law is usually created.

Kirsty Brimelow KC was principal Counsel to the Airspace Tribunal. Her role was to question each witness and then facilitate questions from members of the audience, the Airspace Tribunal’s judges. In bringing together the many perspectives, voices and experiences that have shaped the proposed new human right in this special issue, we seek wider participation and dialogue about how to establish the protections needed in the face of proliferating threats from above. The hearings have been recorded and transcribed to document the drafting history of this proposed new human right and, along with this special issue and other materials, to support a compelling people-focused proposal which will be presented to the UN, the Council of Europe and other bodies in 2024.

We welcome feedback on and engagement with the proposal for this new human right. More details on our ongoing collaborations to this end can be found here: https://airspacetribunal.org/.