Legal Review of New Technology Weapons

Abstract

New technology weapons, which employ novel means such as nanotechnology, cyber, space or directed energy, threaten to challenge the existing regulatory norms within which states fulfils their legal review obligations. This legal review obligation, sourced from either customary international law or Article 36 of Additional Protocol I, is a natural consequence of the rule that a state’s right to choose means and methods of warfare is not unlimited. States conduct their weapons reviews within the weapons law regulatory framework that is created by specific, treaty based, regulatory rules and general principles of the law of armed conflict. However, the unconventional nature of new technology weapons may reveal gaps in the existing body of weapons law that is largely created to regulate conventional weapons. The question is whether states are capable of regulating tomorrow’s weapons with yesterday’s laws. The chapter discusses the challenges faced by states in fulfilment of their weapons review obligation of new technology weapons. These challenges are the product of the non-prescriptive nature of the self-regulatory weapons review obligation, the apparent absence of relevant specific treaty regulation and its effect on the application of general principles of weapons law. The chapter finally discusses impediments to future regulation.