Tuesday, 1 November 2016

The transformation of international law and the rise of drones series, part I

This post is the first in a series (well, hopefully a series, but let’s face it, PhD ≠ free time) that I am going to do on the way in which international law is being or may be transformed by the increased use of armed drones by states. It is, in large part, an exercise for me to order my own thoughts on the matter, but I also hope that it will provide some food for thought among those with interests in international law, politics and technology, about what drones might mean for the future. So here goes…

It has been a theory of mine, since before I began my research into drones and international law, that the rise of these remotely piloted weapons might have the result of promoting, within states, a desire to interpret the law in a way that is more permissive of the use of force.

The logic behind the theory runs like this: Until now, states' desires to use force have been restrained by both concrete practical and abstract legal impediments. Drones make the extraterritorial use of force a much more ‘simple’ endeavour, as they remove much that has previously presented a physical, concrete barrier to such actions, at least for those with the infrastructure to fly them. As a result of the removal of concrete barriers to uses of force, states become restrained solely by abstract barriers. International law, and its symbiotic relation (or perhaps its alter-ego) international politics, represents the most instantly present of these abstract barriers, manifesting in such things as the prohibition on the use of force under Article 2(4) of the United Nations Charter. When concrete impediments are overcome and law remains the only barrier, not only is there is an incentive to change the way that law operates, but it is likely to occur as a necessary consequence as practice expands to fill its new horizons, sort of like an international law version of Parkinson’s lawAreas of international law representing the principle barrier(s) to uses of force become focal points, either by design or accident, which are put under stress by practices that occur at the limits of its flexibility, which may ultimately change its shape, like an elastic band which loses its elasticity, or a much-loved sock which just ends up looking sad and tired... Maybe there is a better analogy. Nope, that'll do.

The change in the law produced by drone use is not an overturning of that law, but a blurring of it through interpretation. There is not a concerted and overt campaign to change the law, but rather a constant stress placed upon those areas which represent barriers. There is no chance, for instance, that the use of drones will signal the end of the prohibition on the use of force under Article 2(4) of the UN Charter. But it may result in an increased permeability of that rule, as the exceptions to it—principally self-defence—are gradually widened. And it is these sites of the law being ‘widened’, or made more permissive of uses of force that I would like to focus on over the coming months.

I have argued previously that the growth of drones is likely to speed up the transformation of the ‘armed attack’ requirement of Article 51 of the UN Charter form a state-against-state mechanism to one which focuses on attacks by non-state actors. But I believe that there are many other areas of international law which are potentially at risk of interpretive transformation as a result of this new technology. I intend to consider a number of these within this blog, and to set out my argument as to why drones present a possible ‘challenge’ to the current state of the law (I put the word challenge in inverted commas as, of course, some might see this as a welcome opportunity to expand international law in a way that will enable states to defend themselves more efficiently. Needless to say, perhaps, I don’t share this view!).

The key areas (in addition to the armed attack requirement) I have identified as being most susceptible to change are:

-       The gravity requirement within self-defence
-       The unable and unwilling test within self-defence
-       The law governing the consent of states to third state interventions
-       The law governing the existence of non-international armed conflicts

It will be noted that these areas of law are, for the most part, the gateways to uses of force, rather than aspects of international law that govern conduct in the use of force. I suppose that this is a result of the fact that drones are being viewed from the perspective of technology that enables the use of force, so it follows that the areas of law they impact upon are those involved in the enabling/disenabling of uses of force. These are the abstract barriers. It is pure coincidence that these areas of law coincide with those so far covered in my PhD thesis on drones and international law!

So, hopefully I will have a chance to post the first substantive piece in the series within the coming weeks. I look forward to writing it and I hope you enjoy reading it!