Ahmet Ceran

Since the end of 2019, an escalation trend is getting apparent in various conflict zones like Syria, Libya or South China Sea. Newly emerging or existing arms capabilities are deployed, tested, operationalised and multiplied by new actors, proxies or already dominant powers into these critical engagement domains. This highly dangerous outlook brings various long established legal arms control tools into the attention during times that international convergence and non-proliferation regimes face some serious challenges. We firstly heard echoes of an ongoing discussion about proliferation and deployment of ground-launched missiles which would have been prohibited by the Intermediate-Range Nuclear Forces Treaty (INF Treaty), terminated in August 2019, around different domains from California to Asia Pacific or Russian military establishments. Then we witnessed a legally disputable use of unmanned aerial vehicles (UAVs) at the bombing of Iranian General Qasem Suleimani. Developments of 2019 make it more and more unignorable to observe emerging weapons technologies as critical determinants at the international legal landscape.

The rise and fall of landmark non-proliferation tool, the Intermediate-Range Nuclear Forces Treaty showed that rapidly evolving technologies –artificial intelligence (AI) and unmanned vehicles in particular– bring some extend of blurring and confusion to the contemporary international humanitarian law and non-proliferation debates. For example, in certain cases, state parties legally define and interpret emerging weapons technologies differently than others. And it gives rise to further legal ambiguities, especially when the issue in question has potential illegitimate consequences. Therefore, a closer look at the specific conflicting situation whether UAVs fit the description of term “missile” within the INF Treaty framework and other timely ambiguous cases might constitute a decent take-off point to highlight some preliminary insights and “text-book” principles.

Differentiated interpretations, the technology and the ambiguity

The 1987 INF Treaty has been a landmark agreement between the USA and Russia that banned testing, production and possession of land-based ballistic/cruise missiles, as well as their launchers, with the capability of reaching 500 to 5,500 km range. Yet, continuous contestation of the treaty as well as the escalating tension resulted in the termination of this signature post-Cold War non-proliferation tool in August 2019. Both sides published various official statements touching upon compliance issues of the other party en route to the termination.

As reflected to the relevant press releases, Russian side claimed that the USA’s some armed UAVs fit the description of ground-launched cruise missiles. Therefore, any ground-launched armed UAVs with a range from 500 km to 5,500 km violate the treaty. In contrast, according to the USA side, the term “missile” points to one way systems in the treaty, yet armed UAVs employed by the USA are two-way and reusable systems. To that extent, the USA claimed that the mentioned armed UAVs are not under the INF Treaty’s jurisdiction. And this is a solid example how technical configurations are conceived way differently by different state actors. The debate as to whether or not UAVs fall under the jurisdiction of the INF Treaty shows the problems in determining an unambiguous legal definition of emerging weapons technology.

Similar situation in which a vast number of state parties have been experiencing difficulties coming up with a generally accepted legal definition just took place during April 2018 and August 2018 dated Group of Governmental Experts (GGE) meetings on lethal autonomous weapons systems (LAWS). GGE on LAWS is formed in the margins of the Convention on Certain Conventional Weapons (CCW) and brings together national delegations, technical experts, practitioner as well as the international civil society since its establishment after the fifth review conference of CCW in 2016. The CCW is now considered a reliable legal tool to ban or restrict the use of weapons that cause unnecessary or unjustifiable suffering.

To this end, In 2018, the GGE gathered to discuss LAWS related matters for two times with an agenda touching characterization of concepts, consideration of human elements, potential military application, and also the legal ambiguities. Even though LAWS have significant potential to secure the upper hand in warfare, many critics have pointed out dire legal concerns.

When the CCW’s debate on LAWS is taken into consideration, a legal ambiguity is lack of any agreed legal definition of autonomous weapon systems as reflected to the 2018 GGE on LAWS conclusions. Different state parties consider different levels of autonomy as the threshold for a threat to IHL. Differentiated understanding obviously in the end results in divergence in interpretation. On that note, the enlightening work of Kenneth W. Abbott and Duncan Snidal gives a great contribution explaining why ambiguity is inserted in certain instances as follows: “States can limit sovereignty costs through arrangements that are nonbinding or imprecise or do not delegate extensive powers.” And such claim becomes more evident according to part of the academic circles analyzing soft law. Especially some figures shared by Shirley Scott which were also cited by Douglas Guilfoyle give notable clues that the legally non-binding and imprecise sources of soft law come through their best times.

Instruments of soft law do not necessarily constitute binding or materially legal provisions of hard law sources like treaties, customs and bilateral agreements. Therefore, relying more on softer or unilateral forms of law might directly alter consensual actions such as treaty-making or international tribunals in the future. On that note, Nico Krisch reminds that in some areas like countering terrorism financing, cooperation “needs to be more or less comprehensive.” A similar claim might be asserted that sustaining comprehensive, consensual common grounds are more fitting for the legal frameworks regulating emerging weapons technologies despite the availability and gravity of various ways of establishing legal frameworks with lesser consensus.

However, when the issue in question is the prohibition or restriction of weapons technologies with the potential to cause excessive harm, common grounds were found at least since the post-World War II era. By referring to common grounds, one should not only center upon written legal rules and jus cogens principles in general. But, the legal process itself – the quality and efficiency of the legal interactions among all relevant stakeholders – surely is a critical determinant both regarding the legal framework and the international behavior.

Even though state actors are the dominant players on the international legal fora, intergovernmental organisations, international civil society, multinational businesses, and surely the academic circles are also in the game. Interaction, coordination or conflict between these stakeholders directly affect or even some times constitute the common grounds.

For example some influential international movements aiming to prevent illegitimate harm in conflicts such as the Red Cross and Red Crescent movement or more directed efforts like the International Campaign to Ban Land Mines or International Campaign to Abolish Nuclear Weapons have bold positions both in the formal legal negotiations but also on the social, cultural landscape. In that sense, from a critical constructivist stand point, Antje Wiener and Uwe Puetter tell that validation of norms could take place not only through formal, legal processes but also through social recognition and cultural validity. Same goes for the weapons technologies.

To be able to overcome differentiations regarding how emerging weapons technologies are perceived by state actors, more of social and cultural inputs are necessary considering their visible impact. In the past, international community’s negative attitudes have influenced international convergence towards not to use nuclear weapons, chemical weapons and land mines during armed conflicts whether there exists a hard, prohibiting international legal framework or not. Nina Tannenwald underlines that the international community’s negative attitudes towards a certain weapons technology increases burden of proof and constrains the behavior while a state actor is in position of using that weapons technology. For sure, this normative-social dimension would be discussed more broadly as interpretations and legal ambiguities multiply and crystallize in the future.

The real post-INF Treaty problems: As a matter of consensus

Soon, some consensual legal tools of the international non-proliferation framework would fall on the edge of newer contestations. For example on April-May 2020, Treaty on the Non-Proliferation of Nuclear Weapons (NPT), most comprehensive multilateral commitment to prevent spread of nuclear weapons and weapons technologies with a total of 191 state parties would enter into a review process to discuss ways of promoting treaty compliance. Divisions among the signatory parties  consisting of states with nuclear capabilities and non-nuclear states raise the risk of falling short of any consensual, comprehensive outcome. It is going to be interesting to observe if and how emerging weapons technologies would be tackled in this conversation.

In a close connection, it is not irrelevant to bring the New Strategic Arms Reduction Treaty  (the New START) into attention. The New START, as a result of the bilateral efforts and converge between its two contracting parties the USA and Russia limits quantity and delivery of nuclear armaments. The New START is currently one of the robust safeguards of the nuclear non-proliferation regime. Yet, its days are also numbered. The treaty would expire on 5 February 2021 if a consensus for its extension couldn’t be ensured by the signatory parties.

Currently a big debate continues and a big elephant wanders in the room as discussions continue about the New START’s extension. Discussions center upon the question whether the treaty covers all current and future nuclear capabilities of the parties. Especially after Russian President Vladimir Putin announced Russia’s new strategic offensive arms under development in his March 2018 Presidential Address including a hypersonic boost-glide vehicle, a nuclear powered cruise missile and an unmanned undersea vehicle, future of New START came to the attention.

There is a discussion full of ambiguities if these newly introduced strategic offensive arms and many others would be covered by New START. Even existence of New START after 2021 is uncertain. New START is a hard source of international law requiring full consent and determination of the signatory parties. Emerging strategic weapons technologies most probably would test the resilience of this consensual framework. Yet, as previously mentioned, legal dialogue/legal interaction between stakeholders itself might be turned into an enhancer of the consensual act.

In this regard, Part 6 of the Protocol to New START introduces the Bilateral Consultative Commission. Bilateral Consultative Commission consists of representatives from both sides to establish the required legal interaction and to promote the implication of the Treaty as indicated within the Section 1 of Part 6. Bilateral Consultative Commission discusses issues regarding treaty compliance, agrees upon measures to improve New START’s effectiveness and as also mentioned in Section 1, resolves questions related to applicability of the provisions to new strategic offensives. It is going to be an important test seeing how resilient is the current effective dialogue mechanisms today to emerging weapons technologies within established, hard sources of international non-proliferation framework.

Ultimately, even though it might be claimed that “ambiguity”, “soft law”, “differentiated understanding” and so forth would constitute some terms describing current and future stance of the international non-proliferation regime as well as the IHL debates, fundamentals are still there. The International Committee of the Red Cross, within its April 2018 autonomous weapon systems report, points out the Martens Clause in regard to the new international legal constraints. As introduced in the preamble of 1899 Hague Convention 2 of IHL and referenced  in the 1996 Advisory Opinion of the International Court of Justice, the Martens Clause safeguards that when there is no treaty covering the relevant case, principle of humanity and public conscience protects the combatants and civilians.

The same report underlines that “The provision is recognized as being particularly relevant to assessing new technologies and new means and methods of warfare.” In this sense, it should be voiced as loudly and as frequently as possible that humanity and public conscience must always be at the center of any given technologic advancement regardless of its military or civilian nature but also regardless of the soft or hard form of the regulating legal framework.