New Technologies Symposium: Five Potential Drivers of the Relationship between LOAC and Technology Over the Next Twenty Years

[Rob McLaughlin is a Professor of Military Security Law and Director of the Australian Centre for the Study of Armed Conflict and Society at UNSW Canberra.This post is part of our New Technologies and the Law in War and Peace Symposium.]

As Bill Boothby has observed in New Technologies and the Law in War and Peace, ‘It is…difficult to determine what the future seems likely to look like in terms of further technological evolution and in terms of changes in regulations and other legal and policy provision to address evolving challenges posed by these scientific changes’ (at p5). He then goes on to note (in chapter 6 on highly automated technologies, for example) that LOAC is currently, on the whole, capable of managing the regulatory issues raised by many of these advances. However, there are – as Bill also observes – many non-technological factors that will influence the future capacity of LOAC to appreciate and incorporate new technologies within its regulatory scheme.

In this piece, I will briefly describe five non-technological factors that I believe will influence the course of LOAC’s engagement with technology over the next twenty years. By this I do not mean that these factors will occur; rather I seek only to describe five possible ‘forks in the road’ that might challenge and influence the future evolution of the LOAC – new technologies relationship. These five factors are: Current geo-political currents and a resultant reluctance to negotiate new treaty level instruments; Reaching the limits of interpretation by analogy; A catalytic event which mobilises significant civil society (and some State) agitation and advocacy; A development in a parallel body of law or legal forum that necessitates a fundamental shift in our appreciation of when and how LOAC applies, and; Soft law takes an issue down a path that is unacceptable to some States, requiring States to take action to ‘correct’ (in their view) the trajectory of interpretation.

First, current geo-political trends indicate a multi-polar world subject to heightened levels of competition and risk of conflict, accompanied by a concomitant erosion of the hitherto dominant post-WWII liberal-internationalist rules based order. One consequence of this (whether real or perceived) is a trend towards increased reluctance on the part of States to negotiate new treaty level instruments that touch upon issues of LOAC, security, and technology. Cul-de-sacs on AWS at the CCW and GGE, and even new hesitancy in what was previously thought to be agreed in terms of the applicability of LOAC to cyber, are indicative of this state of affairs. Whilst this situation persists, States will thus need to ‘make do’ by ensuring that LOAC continues to operate on the basis that new technologies are readily assimilable within its regulatory scheme. I think this will remain the preferred mode of progressive development in interpretation and application for some time to come, precisely because it utilises existing law and principles and thus does not require States to develop or commit to new limitations or permissions. I also think this is the best path forward in current circumstances because it continues to reinforce the systemic fitness for purpose of LOAC by consciously ensuring that new technology is conceived of as capable of being managed by existing LOAC.

Second, however, I do think that a potential future fork in the road may arise if some new technological development pushes us to the very limits of interpretation by analogy. This mechanism – well evident and well employed in the Tallinn Manual 2.0 on international law and cyber operations, for example – is in many ways the default method in application of LOAC to new technology: A cyber attack is regulated in the same way as a kinetic attack if it has similar effects, and so on. It is entirely possible, however, that at some stage we will reach the limits of this mechanism. This is possible if the qualitative nature, implications, and applications of the new technology simply transcend analogy to an existing technology or conceptual framework. The discussion on, and uncertainty surrounding the notion of, ‘meaningful human control’ perhaps indicates what such a situation might look like, although I do not think MHC is that situation. Indeed, I think the focus on MHC is detrimental to progress on understanding how LOAC incorporates autonomy. I would say the most likely place where we could reach those limits in the next twenty years is if a really significant advance in artificial intelligence (with clear military consequences) suddenly bursts upon the scene. At that point, we may – I stress may, not will – approach the limits of interpretation by analogy.

Third, the intervention of a catalytic event or incident which mobilises significant civil society (and some State) agitation and advocacy, is a relatively recent – but very powerful – wildcard in LOAC progressive development. The further energising of, and leverage provided to, civil society and ‘core Oslo’ States in relation to cluster munitions after military operations in Lebanon in mid-2006 is well documented. It thus cannot be discounted that a catalytic incident or event involving the application of a new technology in conflict could, over the next twenty years, act as a wildcard disruptor of the status quo characterised by low levels of State interest in negotiating new treaty law.

Fourth, whilst I cannot pinpoint a likely example or potentiality, it is always possible that States act as the disruptive wildcard to the status quo. This could be by means of an unanticipated development in a parallel body of law, or in a significant legal forum, which necessitates a fundamental reassessment of our appreciation of when and how LOAC applies to a particular technology. If, for example, recent Chinese and Russian hesitancy on the previously (thought to be) settled question of whether LOAC applies in cyber-space were to gain significant traction and become the new norm (unlikely, I think, but remotely possible), then a fundamental reassessment of how LOAC relates to cyber (and perhaps certain other) operations would be required.

Finally, we must consider the consequences of the increasing role that soft law plays as an interpretive tool and an agenda setting mechanism in terms of the relationship between technologies and LOAC – for example (if you accept that such manuals constitute soft law), the San Remo Manual on international law and naval operations, the Tallinn Manual on international law and cyber operations, and the Woomera Manual project on international law and military operations in, from, and through space. States often play a critical role in the development of soft law, but that is not a given – indeed, a soft law path may be adopted precisely because it appears States do not wish to progress hard law on a matter, but there is strong appetite elsewhere in the international community to crack on and do so. This means that soft law can, of course, be developed outside of fora over which States can exercise control of the agenda and outcomes. It is not unknown for a soft law process or instrument to gain significant traction, but in circumstances where some States decide that the process or outcome is taking an issue down a path that is unacceptable to those States – the ICRC’s Interpretive Guidance on direct participation in hostilities is a case in point. If a future soft law process in relation to the application of LOAC to a new technology takes a path that – in the view of a sufficiently weighty group of States – necessitates action to ‘correct’ the legal trajectory, they may seek to do so by engaging in State-sanctioned soft law, or even hard law, development. The relationship between LOAC and technology is sometimes lamented as law lagging technology, or as lex lata incapable of adequately integrating a new technology. However, there are also a range of systemic and non-technological constraints and ‘force majeure’ factors that act upon the capacity of LOAC to appreciate, characterise, and apply to new technologies. When analysing the LOAC – technology interface, it is thus important to keep in mind that the ongoing fitness for purpose of LOAC in the face of new technologies is a function not only of the flexibility of the law and the assimilability of the technology, but also of the vagaries of the international system in which the relationship between LOAC and technology plays out.