New Technologies Symposium: Concluding Thoughts

[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.]

In New Technologies and the Law in War and Peace we recognise the existence of a linkage between the military and consumer uses of a number of pivotal emerging technologies and consider how the law will develop to regulate their application in those distinct spheres of application.  The contributing authors laid before the readers factual material relating to the respective technologies and readers were invited to develop their own appreciations.  The series of blog posts that Opinio Juris has arranged this week has therefore been a most valuable opportunity to take the discussion of these matters forward.  I have been invited to offer at this stage a few concluding thoughts.  I should, however, emphasise that in my view the conversation has only just begun, that there is a great deal more to be said on these complex issues and I am therefore most grateful to Opinio Juris and specifically to Jessica Dorsey for facilitating what I see as the commencement of this important discussion.  Permit me to offer a few reflections on each of the posts.

Alejandro Chehtman casts a well-expressed and thoroughly appropriate word of caution where relying on man on the loop arrangements as a safeguard for autonomous weapons is concerned.  Alejandro, I think you are right but much in the end will depend on the capabilities of the emerging technology.  The lack of transparency of autonomous decision-making is, I agree, troubling.  Melissa de Zwart is clearly right to sound a profound note of concern over the space debris issue and its implications for continued access to, and peaceful activities in, outer space.  It is to be hoped that the Woomera Manual will inspire states to recognise and apply applicable law in the outer space domain.  Rain Liivoja sensibly links David Fidler’s chapter on brain technologies with the treatment of human enhancement technologies in Chapters 7 and 8.  In my view readers will find Chapter 7 to be most useful both as a highly readable guide to some of the complex technical details and as a useful analysis of the topic.  Rob McLaughlin’s piece merits repeated reading.  His five factors are well chosen and do indeed seem to be the aspects that will determine how the relationship between law and technology will play out.  He is wise in the final paragraph to note that, while the law may be flexible and may seek to accommodate to new technological realities, ‘the vagaries of the international system’ will also play a role.

Kobi Leins looks at cyber-physical systems noting topics that ought to engage the minds of lawyers and asking, inter alia, that those lawyers develop a better understanding of technology.  As she correctly observes, the book may help to phrase the questions we should be asking about technological development.  It is for all of us to engage across disciplines when considering possible answers.  Markus Wagner looks at Lethal Autonomous Weapon Systems and rightly comments that more could have been said in the book about the inherent difficulty in assigning responsibility in complex decision-making systems.  He must be right that the lines of responsibility between those involved in AWS operations are going to be hard to draw.  I share his recognition that looking at what technology can do and thereafter assessing its acceptability might be a rather cold, clinical approach to regulating technological advance, but it does at least have the merit of logic.  As Cassandra Steer observes in her valuable contribution, the growing and deepening interaction between military and commercial sectors in outer space calls into question the security of some kinds of intelligence and data – a growing challenge.  The fear must be that states will be reluctant to overcome commercially-inspired hesitancy and regulate technologies that have both beneficial and weapon applications if sizeable commercial interests are involved.  Controversies as to the definition of space weapons, their regulation and as to the dangers of a space arms race have clear parallels with concerns as to what may be taking place in cyberspace.  Whether the forthcoming Woomera Manual will help to resolve those issues remains to be seen.  Perhaps perceptions as to its degree of global inclusivity will be key.  Such a Manual process can certainly provide states with pointers as to where gaps exist in the law and as to ways of addressing them.  Politics will determine whether states take steps to address those, and indeed many other relevant gaps in international law provision.

Continuing with the outer space perspective, cheaper launch arrangements, e.g. based on reusability, and the potential for smaller vehicles to be placed in outer space have interesting commercial implications as Chris Borgen notes, not least because new applications are likely to be unlocked as these trends mature.  He highlights the core theme of the book and observes some of the synergies, cross-fertilisations and other relationships applying across and between technologies.  That of course is what the book is all about.  Let’s quit fretting that law lags behind technological advance.  Instead let’s look at how law seeks to address the challenges that each technology poses in the warfare and commercial contexts and let’s see if this lateral, inclusive way of looking at things can help us to find solutions to emerging, regulatory and other legal problems.

In these closing remarks I hesitate to suggest what conclusions the reader should draw.  I rather feel that to do so would run counter to the philosophy that underpinned the preparation of the book.  Instead I would encourage readers to continue the discussion and to deepen the debate.  Clearly, with time the technologies discussed in each of the chapters will progress, not necessarily at a consistent rate.  Equally, developments in domestic and international law will take place.  In an ideal world the technologies that are perceived as posing the more immediate and more serious threat would be the subject of the most prompt and comprehensive legal provision.  This is not an ideal world.  Political, diplomatic, financial, economic, competitive and numerous other types of interest will determine where the legislative effort is focussed and the degree and quality of the regulatory provision that is achieved.  Perhaps it is by holding conversations of this nature in Opinio Juris and elsewhere that we can start to understand these issues better and can work out what is to be done.  I therefore thank all of the contributors and look forward to witnessing the on-going debate.