New Technologies Symposium: Introduction

[William Boothby is an Adjunct Professor of Law at La Trobe University, Melbourne. This post is part of our New Technologies and the Law in War and Peace Symposium.]

That the pace of technological advance has quickened markedly in recent years is well recognised.  That the law struggles to keep up is frequently pointed out.  Rather than wring one’s hands and blame whose responsibility it is to make the law, it is interesting in a more positive sense to look at the initiatives that are under way or that seem to be required to tackle the challenges that emerging technologies are destined to pose. 

To address the challenges posed by the use of a single technology in a specific context, such as warfare, is difficult enough.  To consider how emerging law may seek to cope with a selection of novel technologies in contexts ranging from warfare to surgery raises a mass of complex issues.  And yet, such a process may prove instructive in illustrating why the law so often fails to match scientific advance and in pointing the way to possible, maybe even promising, ways forward.

Selecting the technologies to consider was no easy matter.  However, if illuminating conclusions are to be reached, a suitable spread is going to be required. 

Any discussion of this kind must of necessity deal with cyber activities.  From the technological perspective, information and communications technologies lie at the root of and are inextricably linked with so many other advances.  Moreover, fundamental differences of view between Western States on the one hand and Russia, China and certain other States on some core legal issues relating to cyber seem to be blocking global legal progress in this area and are what should be avoided in relation to other technologies.

If existing law regulates the use of artificial intelligence in the warfare setting, it contains no ad hoc rules.  Initiatives to regulate its use in surgery, driverless cars and civil aviation focus unsurprisingly on safety, a sensible focus in some contexts but which appears odd when on any reckoning the application of the new technology to driverless cars will save countless lives. 

‘Human enhancement techniques’ is a term that covers a vast array of different processes, substances and equipment.  It poses many legal issues, some of which are strikingly similar to those arising from the development of brain-machine interfaces.  Acceptability at law will depend on the specifics of a particular technique, but human rights law issues, such as the rights associated with bodily integrity, will drive the debate in respect of some of them.

The use in warfare of some human degradation technologies may well sit at a fault-line between activities that are governed by the principle of distinction and thus from which civilians are protected, and those which can lawfully be aimed at civilians.  In the peacetime context, right to life concerns confront States struggling to deal with terrorist incidents in which incapacitating chemical agents that would breach the Chemical Weapons Convention seem to be the only viable option to deal with certain hostage-taking and analogous scenarios.  How distant does the association between the hostage-taking and an armed conflict need to be for the law enforcement exclusion still to apply?  A tricky, not completely resolved issue, but only one of many in this difficult field.

Maybe the ‘multi-disciplinary, multi-pronged’ approach to regulation of the commercial/industrial aspects of nanotechnology offers a useful way ahead for the defence sector, in particular as a way of avoiding otherwise potentially catastrophic risks of environmental and human poisoning.  The secretiveness surrounding what is going on in the defence field does nothing to promote wider public confidence, but secretiveness has always been a feature of the development and procurement of defence capabilities.  Maybe in relation to nanotechnology, broader public policy requires a greater degree of openness.

As science produces substances that do not necessarily fit easily into the existing legal frameworks, e.g. relating to chemical and biological weapons, so the need for new law, or at least for affirmation of the application of existing law, becomes clear.

If nanotechnology is cross-cutting in its application to other fields covered in the book, such as human enhancement, so also are developments in the maritime domain.  Unmanned and autonomous capabilities are as applicable to operations on and below the sea’s surface as in other environments, but in the former raise issues as to the status of the vessel as a warship, a problem which has its parallels in the air domain.  Similarly, the criticality of security of underwater cables for the efficient operation of the Internet shows how maritime security technologies are of vital importance in ensuring that systems on which modern life depends continue to operate undisturbed.

The out-dated nature of the law covering maritime drones and cables is matched in the law as it applies to hostilities in outer space.  One might have thought that the critical role that space-based technologies play in relation to very many important activities on Earth would mean that the law would be modern and comprehensive.  It is interesting that, as with submarine cables, one would be wrong, and the work of a group of experts to produce the Woomera Manual is to be applauded.  It is to be hoped that what the group produces does not get mired in the kind of international controversy surrounding cyber warfare law.

If the technologies discussed so far are either already known or at least are this side of the horizon, artificial brain technologies lie somewhere beyond that same horizon.  However, there is considerable investment in on-going research in this field and what is a twinkle in a scientist’s eye today may well be a nascent capability tomorrow, or perhaps a large number of days thereafter.  Peacetime and wartime applications of such technologies raise a huge number of the most profound ethical and legal issues, and work is needed now to start to formulate answers to those ground-breaking questions.

Biometrics is another technology that has been with us for some time but which is likely to be a core requirement in the implementation of other emerging technologies and procedures.  Control of entry, identification of suspects/targets and determination of an individual’s intent are all applications that span the warfare/peacetime divide.  Effective biometrics testing emerges as a required feature if autonomous weapon technologies are going to be applied to the targeting of individuals or if they are to be an acceptable basis for determining e.g. if a person can be permitted to board a flight.  Human rights law emerges as an important yardstick against which to judge the acceptability of what is being proposed.

A book of this nature was always going to be challenging, perhaps just as much for the reader as for the authors.  So often we tend to consider new technologies and the legal challenges they pose in isolation.  Research projects are set up to consider how artificial intelligence challenges the law, or what the legal implications of nanotechnology might be, or the way in which activities in outer space ought to be addressed by international law.  International Manuals are written by Groups of International Experts on the International Law Applicable to warfare in specified environments, and the particular workstreams are in danger of ignoring the impact that the various technologies have on each other.  Clearly, only by considering how the diverse emerging technologies impact on one another can we make sense of the composite whole.

If the span of technologies ought to be thought of as a composite whole, how should we view the law itself?  There seems to be a general acceptance that international law should not be seen as a series of isolated regimes but as a collective body of regulation.  Valid criticism can be offered where claims as to convergence in the law are concerned.  It would be more accurate to recognise that there are, inevitably, differences in the way in which particular fields of law address their subject matter.  The law regulating civil aviation, the law of armed conflict, the law addressing activities in outer space, human rights law, data protection law and environmental law to name but six examples do not all approach their subject matters in an identical or similar way, so to characterise them as converging seems to be somewhat over-stating matters.  While not wishing to have too many fairies dancing on the pinhead, perhaps composition, in the sense of a mixture of ingredients, describes the association more accurately.

In conclusion, it is not for the authors of this book to tell its readers what to think or what to conclude.  Rather it is for the readers to consider what is laid before them and then to formulate their own views.  Grateful thanks go to the organisers of Opinio Juris for hosting this discussion.  I and the other authors look forward to reading the contributions and to learning from them, and from you.  In a sense, there are no right answers, only questions and more questions.  We haven’t always got it right in our legal dealings with new technologies in the past.  But if we now consider carefully and apply lateral thought, we may just do better in the future.