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  • Ahan Gadkari

Taking Stock of the Progress in Regulation of Lethal Autonomous Weapon System

This article is authored by Ahan Gadkari, a final year BA LLB Candidate at O.P. Jindal Global University. He also serves as a Research Assistant under Dr. Aniruddha Rajput, Member, United Nations International Law Commission.


Introduction

In 2023, it will be 10 years since Lethal Autonomous Weapons Systems (LAWS) were put on the agenda of the meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons (CCW). Although the case of autonomous weapons had already been debated for several years, the arrival of the subject within the CCW marked the beginning of multilateral discussions conducive to the adoption of an instrument to regulate these controversial systems. After several informal meetings of experts, the State Parties agreed in 2016 on the creation of a group of governmental experts, also presaging regulation. This upcoming anniversary is an opportunity to take stock of the progress made by this forum and, in particular, the nagging question of a treaty capable of supervising LAWS.


In this regard, it should be noted that the very definition of LAWS is a subject of debate within the CCW. In any case, a line has been drawn by several states between the so-called fully autonomous LAWS and the others. Fully autonomous LAWS target systems which, once activated, preclude human intervention and are capable of resorting to force or modifying the framework of their mission. Such systems coming under an internationally binding instrument are of utmost importance. This contribution seeks to discuss the question of whether a binding instrument of LAWS is a possibility by analysing the positions of States on this issue and the progress made by the CCW.


Will an International Legally Binding Instrument be Possible?

More than 30 States now support the adoption of an international legally binding instrument for the regulation and prohibition of LAWS. The majority of States that encourage such an initiative are fairly underdeveloped countries, in any case, militarily weak, which in reality would not have the means to develop or buy and therefore use such systems. It must be noted, however, the singular position of China which, unlike other major military powers, has come out in favour of a legal instrument prohibiting LAWS like the Protocol on blinding laser weapons. China, however, gives a very restrictive definition of LAWS that could be subject to a ban and it is a safe bet that the negotiations on the scope of the treaty would be stormy as Chinese interests on this point seem to diverge from those of the other States party to a treaty. In this crusade, these States benefit from the active support of many civil society organizations, including Human Rights Watch and the notable collective known as the “Stop Killer Robot” coalition, whose closing statement in the CCW strongly supported creating a treaty for LAWS. In addition, the International Committee of the Red Cross, a flagship body for the promotion and development of the law of armed conflict (LOAC), has also come out in favour of binding rules on the prohibition and limitation of LAWS.


The question of the possibility of a treaty on LAWS is all the more worrying as the narrow window which would have allowed the opening of negotiations now seems to be closed. The 6th CCW Review Conference, an event which took place in December 2021, which aimed to evaluate and amend the text, was particularly awaited on the issue of LAWS regulation. The adoption of a mandate to open negotiations for a treaty on LAWS was fiercely discussed and supported by the majority of States Parties, but without success. The causes of this failure lie in the procedural rules of the forum which require adoption by consensus of decisions and declarations. Due to the need for consensus, the proposal was destined to fail, since States such as the United States, Israel, South Korea, United Kingdom and Russia have formally opposed such a mandate.

​The reasons for their refusal are multiple. The first argument regularly put forward is of a legal nature and seeks to consider existing norms of international humanitarian law (IHL) as sufficiently armed against the LAWS. The United States and Russia indeed argue that the existing law is sufficient and that it does not require new binding rules. It is true that, as is often the case in law, the IHL is based on general principles, the flexible and dynamic nature of which cannot be denied, making it possible to apprehend new phenomena. It is precisely the new and recent nature of the LAWS which establishes another argument, on the technical level this time. States believe that it is too premature to discuss new rules, as technology continues to evolve and rules adopted today may no longer be viable tomorrow or, worse, will hinder beneficial uses on the military or even humanitarian levels. Indeed, without being clearly stated, another reason for this refusal obviously lies in the operational advantages of LAWS, presumed to be decisive by these States. The United States did not hesitate to point out that military efforts to develop more precise and effective weapons reflect a convergence between military effectiveness and humanitarian protection. According to them, developing LAWS would allow for better military performance and therefore better IHL compliance. It would therefore be counterproductive to ban them.


During the discussions of the CCW in 2022, whenever States decided to recall their desire to adopt a binding instrument relating to LAWS, the persistent opposition of major military powers stunted them immediately. The proposal to emancipate from this forum and bring this issue under the scope of another body has also been raised. Some have cited the role that the United Nations General Assembly (UNGA) could play on this issue, as it already does for cyber security. A recent joint statement on LAWS made by Austria at the 77th Session of the UNGA seems to indicate that the UNGA could assume this role. The possible involvement of the Human Rights Council was also pointed out, where the question first emerged in 2013 before migrating to the CCW. In addition, there are precedents where international civil society initiatives have led to the adoption of binding instruments in the field of arms control, such as the Anti-Personnel Mine Ban Convention and more recently in 2017, the Treaty on the Prohibition of Nuclear Weapons. The simple fact that no nuclear power is a state party to the Treaty on the Prohibition of Nuclear Weapons illustrates the limits of such processes in the face of the desires of the big military powers. What impact might an arms control treaty have if the States most likely to use the weapons in question are not party to it? Although limited in scope, this would exert some form of pressure on States that would develop and use LAWS. This objective is also pursued through the possible adoption of a code of conduct in this area.


Possibility for a Code of Conduct?

If the military powers refuse to lose the operational advantage that the possession of LAWS would constitute, they remain for some, anxious to preserve the image of States respectful of international law. Alongside the legal and political arguments intended to justify the refusal of a treaty, several States have proposed as a palliative solution the adoption of non-conventional concerted instruments, that is to say non-binding. As early as 2017, France and Germany submitted the idea of ​​a political declaration and a code of conduct which would contain politically binding rules and a list of voluntary transparency measures. The adoption in 2019 by CCW Member States of 11 Guiding Principles on LAWS has concretized the objective of a political declaration which recalls the role of humans in the use of LAWS and the applicability of international law to them. As for the code of conduct, the Franco-German duo, accompanied by Finland, Norway, Sweden, Spain and the Netherlands, proposed via a working paper in 2022 the possible structure of such a document. On this issue, the United States has had a fluctuating position. While, in 2017, they declared themselves against this type of initiative, they proposed, during the 6th Review Conference, to reflect on a code of conduct to guide the development and use of LAWS, probably to temper the wave of States militating for the opening of negotiations on a treaty. The United Kingdom was also in favour of a document which recalls the applicable law and compiles good practices, giving as an example the Montreux Document on private military companies or the Wassenaar Arrangement on dual-use goods. These two instruments now bring together many States and have a certain authority in their respective fields. In a similar or parallel way, the United Kingdom presented in 2022 a model IHL manual aimed at applying the principles of this law to the specific case of LAWS, similar to the Tallinn Manual on cyber operations and the San Remo Manual on armed conflict at sea. IHL manuals are often doctrinal works to which few States fully subscribe. It will therefore be up to the States to specify the terms of a code of conduct which will determine its effectiveness in relation to the aims they are aiming for. However, one can wonder about the adoption of such a document in view of the different interpretations of the LOAC expressed by these States within the CCW. These divergences will probably lead to a smooth text limiting itself to recalling general points on the subject. Moreover, it will be interesting to examine the reception and adherence to such an initiative by States and civil society in favour of a treaty. Will they be satisfied with the little granted to them or will they refuse any alternative to a treaty? Not only this, the scope of this instrument is also uncertain. Germany indicated that it was about a first step towards a treaty, while this design is formally rejected by the United States.


Although the methods of adoption, the content and the scope of the documents proposed by the States are very different, they express the desire of some to take up new phenomena on the international legal level without necessarily being legally bound since these documents are not binding. In this regard, they are criticized by Treaty States who believe that these documents are only meant for diversion. It would be a matter of appeasing civil society by showing an interest in respecting IHL and its values ​​while retaining some leeway in the interpretation of this right. However, it is not certain that a State could brazenly flout what it would have subscribed to in such an instrument. Despite their flexible nature, these documents do not always win the support of the States most concerned. For instance, China and Israel did not join the Wassenar Arrangement.


Therefore, if a code of conduct is possible, its regulatory effect is at most: uncertain. So what can the next decade offer us in terms of LAWS regulation? On the one hand, a treaty that will only be ratified by small powers, which will, in fact, probably not be able to regulate LAWS, but which will benefit from the support of international actors with strong legitimacy. On the other hand, a code of conduct, the fruit of the limited converging interests of a few major military powers which will not, however, engage their legal responsibility. Very meagre will therefore be the contributions of these initiatives in view of the goals they pursue and in comparison with other arms control instruments.


Concluding Remarks

A LAWS treaty will have few opportunities to be implemented and nothing can be imposed on States that have not consented to it. A code of conduct, on the other hand, will easily be understood as an act that is above all political and moral in scope. But from a more optimistic angle, could we not see in these normative gesticulations the actions of an international community, which recognizes and responds to an international social need, that of apprehending the LAWS to avoid an increase or a facilitation of violations of IHL while preserving the military interest provided by the technologies which contribute to these systems. Instead of polarizing discussions on the instrumentum, should more attention be paid to negotium. As such, a treaty or code of conduct may be in the process of constituting the opinio juris of future customary norms in the matter.

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