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Legal Review of New Technology Weapons

  • Damian P. Copeland
Chapter

Abstract

New technology weapons, which employ novel means such as nanotechnology, cyber, space or directed energy, threaten to challenge the existing regulatory norms within which states fulfils their legal review obligations. This legal review obligation, sourced from either customary international law or Article 36 of Additional Protocol I, is a natural consequence of the rule that a state’s right to choose means and methods of warfare is not unlimited. States conduct their weapons reviews within the weapons law regulatory framework that is created by specific, treaty based, regulatory rules and general principles of the law of armed conflict. However, the unconventional nature of new technology weapons may reveal gaps in the existing body of weapons law that is largely created to regulate conventional weapons. The question is whether states are capable of regulating tomorrow’s weapons with yesterday’s laws. The chapter discusses the challenges faced by states in fulfilment of their weapons review obligation of new technology weapons. These challenges are the product of the non-prescriptive nature of the self-regulatory weapons review obligation, the apparent absence of relevant specific treaty regulation and its effect on the application of general principles of weapons law. The chapter finally discusses impediments to future regulation.

Keywords

Armed Conflict Additional Protocol Unnecessary Suffering Military Necessity Autonomous Weapon System 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

References

  1. Australian Department of Defence (2005) Instruction (general): legal review of new weapons 44-1Google Scholar
  2. Blake D, Imburgia JS (2010) Bloodless weapons? The need to conduct legal reviews of certain weapons and the implications of defining them as ‘weapons’. Air Force Law Rev 66:157–204Google Scholar
  3. Boothby WH (2009) Weapons and the law of armed conflict. Oxford University Press, OxfordCrossRefGoogle Scholar
  4. Dinstein Y (2010) The conduct of hostilities under the law of international armed conflict, 2nd edn. Cambridge University Press, CambridgeCrossRefGoogle Scholar
  5. Fry JD (2006) Contextualized legal reviews for the methods and means of warfare: cave combat and international humanitarian law. Columbia J Transnatl Law 44:453–519Google Scholar
  6. Greenwood C (1999) The law of weaponry at the start of the new millennium. In: Schmitt MN, Green LC (eds) The law of armed conflict: into the new millennium. US Naval War College International Law Studies, vol 71. Naval War College, Newport, pp 185–231Google Scholar
  7. Greenwood C (2001) Keynote speech delivered on the occasion of the Third International Workshop on Wound Ballistics, held in Thun, Switzerland, 28 and 29 March 2001 (on file with author)Google Scholar
  8. Henckaerts J-M, Doswald-Beck L (2005) Customary international humanitarian law. Cambridge University Press, CambridgeCrossRefGoogle Scholar
  9. ICRC (2006) A guide to the legal review of new weapons, means and methods of warfare: measures to implement Article 36 of Additional Protocol I of 1977. Int Rev Red Cross 864:931–956Google Scholar
  10. Kellenberger J (2009) Official statement of the ICRC: sixty years of the Geneva Conventions: learning from the past to face the future. http://www.icrc.org/eng/resources/documents/statement/geneva-conventions-statement-president-120809.htm. Accessed 25 June 2013
  11. McCoubrey H (1991) The nature of the modern doctrine of military necessity. Mil L & L War Rev 30:217–242Google Scholar
  12. McLaughlin R (2011) Unmanned naval vehicles at sea: USVs, UUVs, and the adequacy of the law. J Law Inf Sci 21:100–115Google Scholar
  13. Nasu H, Faunce TA (2010) Nanotechnology and the international law of weaponry: towards international regulation of nano-weapons. J Law Inf Sci 20:21–54Google Scholar
  14. Parks WH (2006) Means and methods of warfare. George Wash Int Law Rev 31:511–539Google Scholar
  15. Sandoz Y et al (eds) (1987) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers/International Committee of the Red Cross, GenevaGoogle Scholar
  16. Schmitt MN (2010) Military necessity and humanity in international humanitarian law: preserving the delicate balance. Va J Int Law 50(4):795–839Google Scholar
  17. Schmitt MN (2012a) Essays on law and war in the fault lines. TMC Asser Press, The HagueCrossRefGoogle Scholar
  18. Schmitt MN (2012b) Autonomous weapon systems and international humanitarian law: a reply to the critics. Harv Natl Secur J Featur. http://harvardnsj.org/wp-content/uploads/2013/02/Schmitt-Autonomous-Weapon-Systems-and-IHL-Final.pdf. Accessed 24 June 2013

Copyright information

© T.M.C. Asser Press and the authors 2014

Authors and Affiliations

  1. 1.ANU College of LawThe Australian National UniversityCanberraAustralia

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