Autonomous Systems, Private Actors, Outer Space and War: Lessons for Addressing Accountability Concerns in Uncertain Legal Environments
Date
2022
Authors
Stephens, D.
Massingham, E.
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Journal article
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Melbourne Journal of International Law, 2022; 23(2):276-305
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Eve Massingham and Dale Stephens
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Abstract
Developments in technology are creating legal uncertainties concerning questions of accountability under international law, as systems become more autonomous and the chain of decision-making responsibility less clear. In outer space, there is a particular reliance on experimental and increasingly autonomous emerging technologies. In this context, the uncertainty regarding liability for adverse outcomes resulting from such systems is compounded by the fact that space, which was once solely the domain of states, has seen a significant rise in use by private actors. Space law has unique rules regarding private actors; it may be fairly asked whether existing space law is too rigid to adequately cover all current activities in outer space and appropriately assign responsibility for their consequences, especially if an incident occurs due to an autonomous system launched by a private actor. The law of armed conflict is being similarly challenged by new technologies, especially regarding the regulation of weapons, means and methods of warfare and other systems with autonomous functionalities. Although automation in military devices has been around a long time (eg landmines and uncrewed balloons), legal frameworks were not drafted with the full gamut of today’s available technology in mind. The result has been extensive debate about how to appropriately assign responsibility, especially when things go wrong with autonomous systems in war. These parallel issues — attribution of both responsibility for private actors’ autonomous space objects and responsibility for the actions of autonomous systems being employed in armed conflict — draw these legal frameworks together. A further connection that will be canvassed is that deployment of such systems to outer space by private actors has the potential to drag states unwittingly into armed conflict. This article reviews the current state of the law in both outer space and armed conflict and identifies areas where the unique nature of the development and deployment of autonomous systems challenges existing notions of accountability at international law. In seeking to provide some solutions, the paper makes the case for paying greater attention to the added value of domestic laws, the possibilities presented by military diplomacy, as well as asking the question of how collective responsibility principles might best be employed in these domains.
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