Chapter 14: Jus nascendi, robotic weapons and the Martens Clause
The emergence of new technologies can and does challenge many of our existing assumptions and traditional interpretations of the law. In particular, the development of new military technologies has led to the emergence of new international humanitarian law (IHL). States are rapidly moving toward sophisticated military weapons with increasing degrees of automation and information processing. Such technologies dramatically transform the capabilities, behaviors, or effects of state action, and can undermine the basic assumptions of customary or treaty law. Existing law falls short in protecting the collective interests of the states. This chapter asks how an emerging technology might necessitate new law, how new law ought to be formed, and what the emergent norms ought to be in these processes. In regulating potentially disruptive technologies, there continues to be debate about the appropriate relationship between the emergence of new technological capabilities, new norms, and new laws. The author explains how the evolution of international law ought to be shaped by moral considerations. The legacy of the Martens Clause is an explicit recognition of the role of moral consideration in the application of IHL and the formulation of new law. This chapter considers the legal framework and means by which new law, jus nascendi, could come into place for new robotic technologies. The author discusses some of the philosophical issues that arise, and asserts that critics’ concerns over autonomous weapons should not be limited to the norms of discriminate use, proportionate use, and protection of civilians. The current debate ought to focus on the threats posed to responsibility, accountability, human rights, and human dignity. The principle of “meaningful human control” over the use of violent force in armed conflict is presented as an example of an emerging normative principle concerning the development of autonomous weapons.
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