Background
In the ongoing multilateral discussions about the regulation of autonomous weapon systems (AWS), States have identified the legal review of new weapons, means and methods of warfare as an important compliance, risk mitigation and transparency measure.
The Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (GGE) has recognised the significance of legal reviews in relation to AWS. During its 2018 and 2019 sessions, the GGE affirmed a set of Guiding Principles, which the Meeting of High Contracting Parties to the Convention on Certain Conventional Weapons subsequently endorsed. One of these principles reads as follows:
In accordance with States’ obligations under international law, in the study, development, acquisition, or adoption of a new weapon, means or method of warfare, determination must be made whether its employment would, in some or all circumstances, be prohibited by international law.
More recently, multiple States highlighted the role of legal reviews in their submissions to a process that the United Nations Secretary-General undertook pursuant to General Assembly Resolution 78/241. In his report, the Secretary-General summarised the submissions in the following manner:
37. Several States stressed the importance of conducting legal reviews of weapons, means and methods of warfare, as required in article 36 of Protocol I Additional to the Geneva Conventions of 1949. It was noted that the possible unpredictability of lethal autonomous weapons systems raised challenges for the conduct of such legal reviews. It was suggested that legal reviews include aspects of human-machine interaction and how they were addressed in training. The view was expressed that legal reviews were insufficient on their own to address the concerns raised by lethal autonomous weapons systems, and that specific rules were required. Reference was made to two expert meetings on the legal reviews of autonomous weapons systems that were held in Australia in 2023 and 2024.
38. It was noted that there was no provision governing how legal reviews should be conducted and no requirement to publicize the outcome of such reviews. Several States emphasized the utility of voluntary exchanges of information and practices regarding the legal review of lethal autonomous weapons systems.
Purpose
To address the kinds of challenges mentioned, we are developing a set of Good Practices in the Legal Review of Autonomous Weapon Systems. We anticipate that these Good Practices will assist States in carrying out legal reviews of AWS in a manner that accounts for their unique characteristics. Adoption of these practices can enhance the efficacy of legal reviews as a mechanism for implementing international legal obligations relevant to AWS and improve transparency. Considering that legal reviews are undertaken at the national level and that States have significant discretion in terms of the conduct of the reviews, some or all of these practices could be independently adopted by States, or agreed as representing good practice with other States.
The Good Practices do not aim to offer an interpretation of existing legal obligations. Indeed, the obligations of States differ when it comes to legal reviews: in particular, not all States are party to Additional Protocol I to the Geneva Conventions (‘AP I’), Article 36 of which creates a binding obligation to conduct a legal review of weapon systems, including AWS. The Good Practices could be relevant to all States reviewing AWS, irrespective of whether they have an obligation under international law to do so, and what the scope of that obligation might be. That said, some States may view some of these Good Practices as flowing from their international legal obligations.
The articulation of these Good Practices is without prejudice to efforts aimed at clarifying or further developing the current normative framework with respect to the development and use of AWS. The Good Practices seek to support States in operationalising the GGE’s Guiding Principles.
Development
This work began in early 2023, when a comprehensive review of submissions by States and other participants in the GGE on legal reviews was undertaken at the University of Queensland. The report of this activity extrapolated from these statements an initial list of propositions about legal reviews of AWS.
This list of propositions was presented and discussed during an Expert Meeting on the Legal Review of AWS in Sydney in March 2023. Following this meeting, a working group revised the list into a structured set of Elements of Possible Good Practices in the Legal Review of Autonomous Weapon Systems. These elements were, after a round of written feedback from participants of the 2023 Sydney Meeting, refined further and annexed to the report of the meeting.
Subsequently, the working group made minor textual changes to some elements and proposed two additional elements. This revised set of Good Practices was presented and discussed during the Second Expert Meeting on the Legal Review of AWS in Sydney in April 2024, as reflected in the report of the meeting. The revised set of Good Practices can also be downloaded below.
Next steps
The working group comprising Dr Damian Copeland, Ms Netta Goussac, Dr Natalia Jevglevskaja, Dr Rain Liivoja, Dr Lauren Sanders and Mr Renato Wolf is currently restructuring and revising the Good Practices and equipping them with commentaries. We expect to complete this work in early 2025.
Meanwhile, suggestions and comments on the current draft are welcome and may be sent by email to gro.slipa@ofni or by using the contact form.
