Analyses

Analyses

Comprehensive overview of current events and trends in the field of international security and international relations

Does International Law Keep Up with Technological Advancement? Reflecting on Nuclear Weapons, Emerging Technologies, and the Legal Responses to Novel Challenges They Pose

Mr. Maksim Sorokin,
PIR Center Information & Publications Program Coordinator,
Editor of the “Yaderny Control” E-Bulletin

November 20, 2024

International law has always been the cornerstone of the co-existence of the diversity of actors in the global political arena. It aims to regulate the use of force, protect the sovereignty of nation-states, and prevent wars and armed conflicts. The United Nations (UN) Charter posits the critical elements of international security, focusing on so-called soft and hard security. The former is preventive, especially in that it prioritizes economic prosperity, intercultural cooperation, respect for human rights, and other universally recognized values and policy objectives over conflict, which is inherently destructive to all the underlined aspects. Hard security, in turn, addresses the ways of tackling conflicts by an authorized use of force under the UN Security Council Resolutions[1]. Though arguably, yet reasonably, this paper includes norms and laws-setting as part of soft security, since it aims to discourage diverse actors from using force or a threat of force in favor of national interests. Nevertheless, it is also worth emphasizing that many legal developments in world history were achieved in a post-war era, while the international community reflected on the consequences of brutality and severity they had faced. Thus, the Treaty of Westphalia or the formation of the UN, to name a few, might be the evident examples[2].

Today, emerging technologies present significant challenges to the existing international legal architecture. According to Braden R. Allenby, advancements such as uncrewed aerial vehicles (UAVs), AI-powered military equipment, cyber weapons, etc., are raising questions about established principles of war that have been painstakingly developed with time[3]. Nonetheless, the phenomenon does not seem novel. Rather, from the law-making perspective, it recalls the Cold War Era that was driven by the US-USSR nuclear rivalry. At that time, the states discussed controlling the weapons that provide enormous strategic superiority over others. Emerging technologies now attract equal attention, and the issue seems to be likewise not feasible to resolve. Similarly, from the technological standpoint, the rapid growth of information technology has enabled more accurate use of nuclear weapons, leading to a novel wave of research on the salience of nuclear weapons and the prospects of preventing the nuclear war[4]. Therefore, in general terms, this showcases the most critical resemblance between nuclear weapons and emerging technologies – they pose considerable threats to international peace and security, alongside do not defy the modern legal advancements in international law, aimed at the prevention of new armed conflicts.

Notwithstanding the resurgence of a nuclear discourse fueled by emerging technologies, cyber and AI per se invoke newest military considerations, such as surrounding the concept of New Wars and Hybrid Warfare[5]. Though it frequently triggers reluctance among state and non-state actors to speculate on the future of wars, it inevitably leads to deliberations on incorporating recent military advancements into the existing legal frameworks. Therefore, there is the clear parallel between emerging technologies and nuclear weapons, which explains why both have been taken as research subjects: (1) they introduce and invoke new strategic concepts and military strategies, (2) they threaten global security architecture, (3) they are not sufficiently regulated, and, most essentially, (4) they present the gaps international law has in addressing challenges the technologies mentioned above pose; otherwise, it even seems valid to assume that emerging technologies repeat the pathway of nuclear weapons, which is far from over.

The vital theoretical frameworks to bolster the argument

Importantly, the paper argues that contemporary international law cannot tackle the significant challenges and threats which arise from nuclear weapons and emerging technologies; the reason behind the critical mismatch between the development of law and technology lies in the behavior of states. In this respect, it seems feasible to examine the intersection of IR theories and legal frameworks. Realism, evidently, plays a significant role in structuring the main argument. Thus, it is worth re-calling the classical realism of Hans Morgenthau, who believed human nature is inherently self-interested and driven by a desire for power. This constant struggle for power shapes the interactions between states in the anarchic international system[6]. Realists such as Morgenthau, as well as post-Morgenthau neorealism proponents typically harbor skepticism towards international law viewing it as inherently feeble and untrustworthy due to its absence of centralized enforcement authority. In this respect, they contend that international law usually represents prevailing power dynamics favoring dominant states with more significant sway in its formation. Therefore, states might selectively leverage international law to suit their vital national interests, adhering to it opportunistically while disregarding it when their interests are threatened[7].

Ultimately, it seems apparent that political realism and international law have complex and often tense relationships. Realists believe the international system is anarchic and that power, not law, dictates state behavior. Most interesting is the notion that powerful states can violate international law with impunity while weaker states face consequences that undermine the law’s credibility and fairness. Thus, Brian Tamanaha presumes that exceptions exist for nearly every legal rule or principle, and legal precedents tend to lend support to various outcomes, which are, in turn, brought upon by the prejudices and biases that later tighten the legal foundation in favor of the stronger actors[8].

Another essential IR theory addressed in the paper to supplement particular instances of state practice in the formation of international law is constructivism, which showcases a comparable line to illustrate the examples when states agreed on specific regulations of military technology regardless of their greedy and selfish behavior, which realists insist on. While opposing the realist school of thought, constructivism derives from the sociology of Max Weber. It stresses the role of ideas, norms, and social structures in shaping the behavior of states. Essentially, the theory sees communication as a foundation of states’ identity formation and, subsequently, norms and laws-setting based on the dialogue, empathy, and some form of social consent based on majority-led decision-making[9]. In this respect, Jutta Brunnee and Stephen J. Toope re-call the case of the Canadian Parliament introducing the law on environmental protection of Arctic Waters that the United States vehemently advocated against. Nevertheless, as other states did not support the United States view on opposing the law, it passed the legislation procedures[10].

Eventually, constructivism, applied to international law, posits that legal rules and institutions actively shape the global order rather than merely reflect occurring power dynamics. According to this perspective, international law is vital in establishing shared norms among states, fostering cooperation, and minimizing conflicts. Unlike rigid rules, international law emerges from ongoing social interactions among various actors and is defined through treaties and, essentially, customary practices. As a socially constructed system, international law is principally subject to evolution over time as states engage with one another forming new norms and understandings; it is not immutable. Therefore, the constructivists’ viewpoint has gained prominence across topical issues of how law can advance cooperation and protect human rights globally. In a nutshell, constructivism understands international law as a product of what is called, in legal terms, a state practice based on experience and social recognition[11].

Based on the two IR theories mentioned above, the paper will further examine the major legal developments in the nuclear domain and within the emerging technologies surroundings. As concluded earlier, realism will apparently prevail, showing the inefficiency of modern international law. However, it seems increasingly important to consent that although realists sometimes argue for the non-existence of international law per se, it is implausible to be the cases herein. Thus, Steven M. Schneebaum claims that the assertion that international law does not exist, because states act according to their interests, is logically flawed and contradicted by evidence[12]. International law obviously exists and there have been accomplishments in addressing security concerns raised by novel military advancements, yet there has been more evidence of states confronting the overall legal practice.

Nuclear weapons under international law

World War II remains one of the central momentums in modern world history. It demonstrated the severity humanity may cause, and face similarly engendered main legal frameworks that are shaping today’s legal architecture. Significantly, the pivotal moment was the US-led nuclear test Trinity, which raised concerns amongst political science experts and across national governments about the changing nature of war and armed conflict[13]. In this respect, Michael C. Horowitz presumes that nuclear weapons have much more significant impact on strategic planning and shaping the world order than nearly any other military technology people invented[14]. The emergence of nuclear weapons affected the way main international institutions work, interstate cooperation and most essentially, the key legal considerations surrounding the domain[15]. Throughout the years, the international community has been addressing the threat nuclear weapons pose to global peace and security. Remarkably, in 1996 the relevant discussions were brought to the International Court of Justice (ICJ), which concluded that existing rules of warfare, including the principles of proportionality and distinction between civilian and military targets, strictly apply to nuclear weapons. Based on that provision, the Court claimed that the usage of nuclear weapons is, in all possible scenarios, except for the existential threat to a country, illegal as the consequences of a nuclear explosion will inevitably lead to the violations of International Humanitarian Law (IHL)[16].

Nuclear weapons project daunting shadows above international order. These tools of immense destruction epitomize the stark contradiction of human ingenuity: (1) the ability for invention alongside (2) the threat of total annihilation. Although everyone recognizes the catastrophic consequences of the deployment of nuclear weapons, the legal framework is still increasingly complex. However, it is worth assuming that the 1996 ICJ’s Advisory Opinion triggered the following discussions on an ultimate ban on nuclear weapons. Thus, in 2017, the international security landscape was unsettled by the discussion at the UN General Assembly, culminating in enshrining the novel Treaty on the Prohibition of Nuclear Weapons (TPNW), intended to establish a pathway toward a nuclear-free world, marking a successive, inherently political progression, built on the humanitarian impacts of nukes[17]. The TPNW represents a significant departure in the approach to nuclear disarmament by prioritizing a humanitarian perspective that underscores the consequences of using nukes on non-combatants and aims to prevent and mitigate human suffering. Thus, the Treaty crucially acknowledges the devastating effects on human health, the surrounding medium, and general welfare[18].

Essentially, the TPNW is a landmark accomplishment in international law and a remarkable illustration of constructivism in action within the IR theory. The Treaty represents new bold attempt to establish a norm in international society, which is a total illegality and elimination of nuclear weapons, which directly challenges the existing norms under which some states see nuclear weapons as a source of power and security. By delegitimizing nuclear weapons and framing them as morally reprehensible, the TPNW aims to shift the conversation on nuclear security. Such a policy aligns with constructivism’s focus on how ideas and norms can influence state behavior globally. The success of the TPNW, though major nuclear-armed states have not signed and ratified it, lies in its ability to build a global community of states committed to nuclear disarmament[19]. Essentially this community strengthens the norm against nuclear weapons and puts pressure on existing nuclear-armed countries.

Significantly, the Treaty on the Prohibition of Nuclear Weapons could have become a catalyst, keeping the existing legal framework up to date in response to the challenges and threats posed by nuclear weapons. Nevertheless, considering the discussions surrounding the milestone documents and agreements in the field, there seem to be more examples of classical realism, with the states ruining legal architecture in favor of national interests. One of the most topical instances that occurred recently was the Russian withdrawal of the ratification of the Comprehensive Nuclear-Test-Ban Treaty (CTBT). On November 2^nd, 2023, Russian President Vladimir Putin signed the degree according to which Russia withdrew its ratification of the CTBT. The Russian State highlights that such a decision has been made in order to achieve strategic parity with the United States, which has never ratified the document. It is worth noting that the Russian Government has always recalled nuclear parity, and, therefore, it decided to abandon the Treaty as the further consecutive steps forward within Moscow’s foreign policy agenda. According to the Kremlin, the US failure to ratify the document has created legal unfairness regarding both states’ obligations under the CTBT, that the Russian Federation considers unacceptable within the contemporary geopolitical situation[20]. Accordingly, neither Russia nor the United States, the two most powerful nuclear-armed states, has ratified the Treaty. The US, in turn, have maintained its moratorium on nuclear testing, calling upon other countries to adhere to the same principle[21]. Both examples clearly illustrate how powerful states that inherently enjoy strategic advantages approach existing legal norms and principles. In a nutshell, it is evident that any of them may confront the law if it contradicts national interests, making the international law lag with respect to technological developments. Saliently, along with Russia and the United States, the document has not been ratified yet by China, Egypt, India, Iran, Israel, Pakistan, and North Korea[22].

Furthermore, another essential document in the domain is the Non-Proliferation Treaty (NPT), which sets the limits on the acquisition, transfer, and development of nuclear weapons or technologies that enable further advances in military atoms. Nevertheless, despite all the efforts of the international community to preserve the Treaty and its provisions, it failed to prevent North Korea, India, Israel, and India from developing nuclear programs strengthened by sufficient ballistic missile capabilities[23]. Now Iran stays on the edge of joining the nuclear club as well. Apart from that, the NPT has long been the object of discussions about the loopholes the Treaty contains. Therefore, the NPT prohibits member states from acquiring nuclear weapons, yet it keeps silent about acquiring nuclear-powered vessels and naval propulsion reactors[24]. Thus, some critics argue this creates a loophole that AUKUS exploits. By helping Australia build nuclear-powered submarines, the US and UK could be treated as aiding a non-nuclear state in obtaining technology with potential military application, although the above-mentioned states re-call the deal in accordance with the Article 4 of the NPT, which allows peaceful usage of nuclear energy[25]. However, the major concern is that AUKUS sets a precedent for other countries to potentially pursue nuclear programs under the guise of peaceful purposes, which could erode trust in the NPT and make it harder to prevent nuclear proliferation.

Notwithstanding the instances identified above, the paper does not even touch upon the most pressing issues within the nuclear agenda, which is the nuclear developments in North Korea and Iran, which has long been advancing nuclear capabilities, confronting the international law in response to the regional security challenges and threats the countries are facing. These all show how the realist school of thought prevails in frames of the discourse on nuclear weapons, though some states still aspire to set norms and laws based on social interaction and recognition. Yet, more powerful actors that possess the technology refuse and, assumably, will refuse to deepen the legal regulations enhancing existing and creating new gaps in the intersection of technological development and legal design.

Emerging technologies and international law

The 21^st century can reasonably be labeled today as the century of emerging technologies and the subordinary threats to international peace and security. Compared to nuclear weapons discussed above, emerging technologies pose even more challenges to the existing legal architecture. Thus, experts often claim that novel technologies are simply far from being regulated by modern legal frameworks, norms, and principles[26]. There might be a set of reasons behind such an argument: (1) existing legal framework has been agreed upon before most of the topical technologies appeared; (2) primarily, agreements and treaties focus on and are constrained by nation-states within their borders, while emerging technologies often dilute borders leading to more widespread transnational crimes[27]. (3) highly increased exploitation of technology by non-state actors. Thus, Matthijs M. Maas re-calls legal uncertainty and obsolescence as the causes of the inability of international law to keep up with technological developments[28].

More significantly, emerging technologies challenge so-called jus in bello, or the international humanitarian law. In this respect, Molly K. Land and Jay D. Aronson contend that technology itself is not limited to being used for either benevolent or malevolent purposes. Instead, it often shows inherent biases against transparency and accountability across various domains. Essentially, its deployment can overshadow and disrupt authority, thus, diminishing the effectiveness of the mechanisms employed by human rights advocates and civil societies organizations to ensure accountability[29]. It seems reasonable to also mention that, with regard to emerging technologies, the complexity of addressing the respective challenges is multi-dimensional. Braden R. Allenby argues that the legal gap originated not because of the technology exclusively but due to the contemporary cultural and geopolitical disparities that shape the world order[30]. Nonetheless, although states are critical and will be discussed further, technology plays a pivotal role at hand. Thus, reflecting on the intersection of emerging technologies and the IHL, it is worth reminding that the IHL sets the limits of how wars are to be fought, and technologies identify how they are actually fought[31]. Yet there are obstacles while applying the IHL to emerging technologies as they often go on the edge of war and peace, or so-called grey zone conflicts.

Similarly, while AI-driven military tools mainly address the concerns on IHL and raise ethical questions, cyberspace posits legal limitations due to its general uncertainty. The long-standing question of attribution has been a stumbling block in ensuring responsible state behavior in the cyber domain[32]. Cyber-attacks can be intricately designed to hide the identity of the perpetrator. Utilizing anonymizing tools, exploiting network vulnerabilities to route attacks through numerous locations, or even hijacking other devices are common tactics criminals often use in cyberspace. Such an inherent ambiguity poses significant challenges in identifying those responsible and formulating the appropriate legal responses. Apart from that, cyber-attacks can emanate from state-sponsored entities or independent groups, which are treated differently under existing international law. All the aforementioned hinders the development of international law in the field.

Essentially, as the Red Cross claims, the modern era is defined by high-intensity advancement like never before, requiring timely and appropriate responses from nation-states to tackle novel threats when they emerge[33]. For the purposes of the particular research cyberspace will be considered in states’ legal practice, as there have been broader debates and actions compared to recently novel spheres, such as AI, nanotechnology, etc. Thus, back in 2013, the UN Group of Governmental Experts reaffirmed that the norms and principles of international law are fully applicable in cyberspace[34]. Although it still remains uncertain, since cyber-attacks have never caused any physical harm so far, such a remarkable decision (which has been often recalled in the following years) demonstrates states’ commitment to maintaining peace and security across physical and virtual realms. As universally agreed on, the UN efforts, including the one specified earlier, illustrate the constructivist view of international law keeping pace with technological development.

Yet, notwithstanding the fact that there is no universal legally binding treaty governing states’ policies and actions in the cyber domain, today, the only agreement that sets some forms of obligations of the states-parties is the Budapest Convention, which, in turn, does not include such essential actors as the Russian Federation and China[35].

However, it is worth mentioning that states remain bound by international customary law and general legal practice[36]. However, it is premature to assume it helps manage technology development. The contemporary world, especially the post-February 2022 period, is characterized by the increasing desires of state actors to acquire strategic superiority, which in most cases is granted by possessing a military technology that others do not have. Therefore, it does not seem feasible that any prospects towards governing emerging technologies and applying the foundational rules of war to the cyber domain, AI, etc., will be achieved soon unless something critical happens, as it was with nuclear weapons during the Caribbean Crisis.

Conclusion

Summing up everything mentioned above, it is salient to re-emphasize some significant points examined herein. First, nuclear weapons and emerging technologies share somewhat similar pathways in terms of the international legal response to the challenges and threats they pose to global peace and security. Importantly, nuclear weapons or emerging technologies, such as cyber, AI, whatnot, have re-shaped the international world order through providing strategic superiority and, thus, more significant power that states exploit to accomplish their policy aims. Similarly, they have essentially changed the nature of wars, entering a new era of novel transnational conflicts, blurred borders, minimizing civilian casualties, high precision weapons, and accompanied by the imminent threat of devastation[37].

Second, both nuclear weapons and emerging technologies represent significant challenges to the existing international legal architecture, with two principal reasons behind that. Essentially, the one lies in the technology itself. Thus, the emergence of any novel technology inevitably leads to a situation when it will not fit into the existing legal frameworks set in the past. Revising the existing treaties and agreements and fostering an interstate dialogue on ways to control technology is crucial. Nevertheless, it ultimately leads to the second aspect, which is state behavior, which was addressed herein based on two critical IR theories that are most manifested in the international legal domain – constructivism and realism. In a nutshell the former prescribes states’ practice, which transforms into norms and laws over time and is based on extensive social interactions, aimed at attracting more attention to a problem and persuading the counterparts to support novel legal developments. Realism, in turn, reflects the greedy, selfish, and self-reliant nature of states that, in pursuit of their national interests, confront international law to avoid certain obligations and limits.

Remarkably, though many experts favor classical realism, there have been some instances of pure constructivist school of thought. However, even more cases have proven the prevailing dominance of realism. Thus, the debates surrounding the Comprehensive Nuclear-Test-Ban Treaty or the Budapest Convention might be evident examples, to name a few. Therefore, these considerations lead to the main argument set at the beginning of this research, which states that contemporary international law is not capable of keeping pace with the rapid growth of technologies, not because the technology is complex but rather due to the unwillingness of states to contribute to the enhancement of international law and, as such, the overall global trend of sovereignty and limitless policy actions.

Eventually, it also seems reasonable to conclude that the respective research outcomes will be feasible soon since the conflictual environment surrounding the interstate relations is only intensifying, further leading to diversification and decentralization, characterized by increasing tensions in the legal sphere. There are more states willing to acquire nuclear weapons through the exploitation of the gaps in the modern legal system; others may exploit cyberspace as a primary tool for harming their adversaries through grey zone conflicts while some invest heavily in military AI regardless of the legal deliberations and the questions about accountability – these all are the principal issues to be addressed further before it would be possible for the international law to catch up technological development.

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[1] Serge Sur, International Law, Power, Security and Justice: Essays on International Law and Relations, 256.

[2] Matthijs M. Maas, “International Law does not Compute: Artificial Intelligence and the Development, Displacement or Destruction of the Global Legal Order,” 7.

[3] Braden R. Allenby, “Are new technologies undermining the laws of war?,” 22.

[4] Herbert Lin, Cyber Threats and Nuclear Weapons, 25.

[5] Emily Harding, Harshana Ghoorhoo, Seven Critical Technologies for Winning the Next War, 5-8.

[6] Oliver Jütersonke, Morgenthau, Law and Realism, 9-13.

[7] Ryan Mitchell, “Sovereignty and Normative Conflict: International Legal Realism as a Theory of Uncertainty,” 426-427.

[8] Mitchell, 426.

[9] Jutta Brunnee, Stephen J. Toope, “International Law and Constructivism: Elements of an Interactional Theory of International Law,” 25-26.

[10] Brunnee and Toope, 28.

[11] Jeffrey L. Dunoff, Mark A. Pollack, Interdisciplinary Perspectives on International Law and International Relations : The State of the Art, 125-127.

[12] Steven M. Schneebaum, “What Does International Law Have to Say About Nuclear Weapons? And What Does This Have to Say About International Law?,” 150.

[13] Andrew L. Ross, “The Role of Nuclear Weapons in International Politics: a Strategic Perspective,” 1.

[14] Michael C. Horowitz, The Diffusion of Military Power : Causes and Consequences for International Politics, 99.

[15] Andrew F. Krepinevich, The Military-Technical Revolution: A Preliminary Assessment, 3-5.

[16] Gro Nystuen, Stuart Casey-Maslen, Annie Golden Bersagel, Nuclear Weapons under International Law, 120.

[17] Rebecca D. Gibbons, “The Humanitarian Turn in Nuclear Disarmament and the Treaty on the Prohibition of Nuclear Weapons,” 23-24.

[18] Christopher P. Evans, “Questioning the Status of the Treaty on the Prohibition of Nuclear Weapons as a ‘Humanitarian Disarmament’ Agreement,” 55-57.

[19] Daryl Kimball, “The Treaty on the Prohibition of Nuclear Weapons At A Glance.”

[20] Maxim Starchak, “Russia’s Withdrawal From the Nuclear Test Ban Treaty Is an Own Goal.”

[21] “Remarks by NNSA Administrator Jill Hruby at the CTBT: Science and Technology Conference 2023.”

[22] Francesca Giovannini, “The CTBT at 25 and Beyond,” 7.

[23] Steven M. Schneebaum, 151.

[24] James Clay Moltz, ”Closing the NPT loophole on exports of naval propulsion reactors,” 108.

[25] Derek McDougall, “AUKUS: a Commonwealth perspective,” 572.

[26] Michael N. Schmitt, “The Law of Cyber Targeting,” 30-31.

[27] Jack Karsten, “As criminals adapt to new technology, so must international law.”

[28] Matthijs M. Maas, 11-14.

[29] Molly K. Land, Jay D. Aronson, “Human Rights and Technology: New Challenges for Justice and Accountability,” 225.

[30] Braden R. Allenby, 25.

[31] Jonathan Horowitz, “One Click from Conflict: Some Legal Considerations Related to Technology Companies Providing Digital Services in Situations of Armed Conflict,” 310-311.

[32] Lorraine Finlay, Christian Payne, “Why international law is failing to keep pace with technology in preventing cyber-attacks.”

[33] Yahli Shereshevsky, “International humanitarian law-making and new military technologies,” 2132-2133.

[34] “Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security : note / by the Secretary-General, A/70/174,” 12.

[35] “The Budapest Convention (ETS No. 185) and its Protocols.”

[36] Emmy Latifah, Moch Najib Imanullah, “The Roles of International Law on Technological Advances,” 107.

[37] Jack McDonald, What Is War For?, 2-4.

Key words: International Law; International Security; Emerging Technologies

AC, NPT

F4/SOR – 24/11/20