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Journal of Law, Information and Science

Journal of Law, Information and Science (JLIS)
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Gogarty, Brendan --- "Editorial" [2012] JlLawInfoSci 1; (2012) 21(2) Journal of Law, Information and Science i


Since its first publication in 1981, the Editorial Board has identified key emergent areas which it believes warrant special attention by leading academics and professionals. These special editions are dedicated to informing debate about important science and technology in advance of its commercialisation, or if that is not possible, as soon as legal problems are identified with its introduction.

This special edition is concerned with the legal implications of unmanned vehicles (UVs); that is, vehicles that operate without an onboard human controller. Whilst the use of unmanned military vehicles — especially unmanned aerial vehicles, or ‘drones’ — have been the subject of increasing publicity, scrutiny and debate, there has been a much quieter robotic revolution taking place across myriad transport based sectors and industries. Indeed, there are few forms of vehicles, be they airborne, seaborne or land based, that have not been, or are in the process of becoming ‘unmanned’. Given their relative novelty many of the uses to which these new technologies are being put have not been subject to social, legal or ethical consideration or review. This is, of course, a common feature of novel technology; regulatory review and debate more often than not occurs after a technology has been introduced, because of moral panic, the discovery of unexpected risks, the revelation of a legal loophole, or due to the influence of interest groups who capture and direct the debate. In such situations, informed and considered legal responses are challenging, if not impossible to achieve. The aim of this special edition, like the journal more generally, is to help bridge that regulatory gap between technological advance and law reform.

As already noted, there has already been a widespread uptake in unmanned technologies, so that there is already some gap between technological and legal implementation. However, as was noted in the précis article to this edition:

the horse has already bolted, so to speak, and any discussion of regulatory review will be limited by the pragmatic reality that UVs are now firmly entrenched in [a range of areas] ... That is not to say that the march of UVs should continue unabated. There is still a chance to at least shape the way UVs are used and how far they proliferate within militaries and beyond.

That précis provided a background to the use, implementation and growth of unmanned technology. It is included in an abridged and updated version in this special edition. The remainder of the articles are commentaries by a range of international academics and lawyers on what they view as the most compelling or concerning aspects of the technology and if, or how, we should try to regulate or control it.

The expert commentaries in this special edition of the JLIS are divided into two streams: the first focuses on aspects of the military use of UVs, while the second explores issues related to the civilian use of the technology.

In the lead article, Professor Philip Alston examines the human rights dimensions of new robotic technologies. Professor Alston’s analysis is predicated on three principle assumptions. First, that unmanned vehicles which carry lethal weapons will soon operate on an autonomous basis; second, that these technologies have implications for human rights; and third that ‘there is no inherent reason why human rights and humanitarian law considerations cannot be proactively factored into the design and operationalisatation of the new technologies.’ However, Professor Alston warns that this will not occur unless the human rights community presses both public and private sector actors.

Similarly, Meredith Hagger and Professor Tim McCormack consider the impact of developments in military robotic technology from an international humanitarian law (IHL) perspective. The authors analyse the ‘criticism of the increasing incidence’ of attacks involving Unmanned Combat Vehicles (UCVs). The authors argue that the primary concern lies not with the use of UCVs, but rather that they are used in covert operations which often place them beyond the purview of the law. The authors also question whether in some circumstances IHL is indeed the appropriate legal framework to regulate the use of UCVs.

Professor Mary Ellen O’Connell’s work also considers the scrutiny and compliance issues arising from remote assassination by UCVs. She argues that the very existence of UCV technology may well be lowering inhibitions to kill citing a growing complacency with respect to drone attacks. Professor O’Connell’s contribution seeks to, among other things, raise awareness of this fact. Professor O’Connell questions whether existing laws that regulate ‘manned systems’ are sufficient to regulate the use of UCVs.

The tendency towards moral disengagement is further explored by Professor Noel Sharkey in his contribution. He cautions that current ‘man-in-the-loop’ systems have already had this affect and taking man out of the loop will only serve to compound moral disengagement. Professor Sharkey questions whether we really comprehend the limits of this technology and the questions about human responsibility it raises. In addition to moral disengagement, Professor Sharkey notes three other areas that offer valuable lessons in this context: targeted killings in covert operations; expansion of the battlespace; and the illusion of accuracy.

The transition from ‘man-in-the-loop’ weapons systems to fully automated platforms is a theme that is also addressed by Professor Markus Wagner. He notes that rapid technological development in this area has led to a vigorous public debate which has largely focused on the legality of the use of UAVs in targeted killings. However, Professor Wagner considers that some of the most profound questions about UVs will arise if or when new generations of technology permit fully autonomous systems to engage in warfare.

According to Assistant Professor Armin Krishnan, the tendency for UV technology to avoid existing accountability and transparency mechanisms will also pose challenges to the development of an effective arms control treaty relating to their use. In his discussion, Professor Krishnan argues that any UV arms control treaty will only be as effective as the monitoring and verification mechanism which supports it. He further notes that the miniturisation of UVs and their integration into ‘network-centric’ operations, will create further difficulties for arms controls in this area.

Associate Professor Rob McLaughlin — who considers the regulation naval UVs — takes a somewhat different view of UV regulation arguing that existing regimes of governance are capable of evolving to adequately respond to the challenges posed by UV technology. In developing this argument, Professor McLaughlin focuses on two of the more general, contextual issues raised by the use of UVs in the context of maritime operations law, that of ‘status; and the poise and positioning of maritime forces’.

Switching to the use of UVs in a civilian context, a question that is sure to challenge both legislatures and courts in the near future is who should be held legally responsible for offenses committed by unmanned vehicles? This question is assuming greater importance as the technology rapidly transitions from military to civilian use. In his contribution, Professor Gabriel Hallevy discusses liability for criminal offences committed by UVs. He concludes that current models of criminal liability are not only relevant to unmanned vehicles, but are also available.

Of course the potential legal consequences of the advent of self-driving cars are not only restricted to the realm of criminal law. Emeritus Professor Jim Davis discusses the appropriateness of negligence, the relevance of no-fault compensation schemes and the possible application of strict liability to the operation of unmanned vehicles on public roads, as well as the law of privacy. Professor Davis posits that all these legal systems contain sufficient flexibility to accommodate any increase in covert surveillance that may result from the use of UVs.

Approaching the issue of privacy and UVs from a different perspective, Dr Brendan Gogarty considers the implications of the increased surveillance reach provided by UV technology on civil society. He argues that UVs provide those controlling them with an unprecedented ability to engage in ‘global, persistent, surveillance’ of both external and domestic populations, cautioning that a failure to engage in debate about the appropriate legal (and social) responses may ultimately lead to an erosion of not only privacy but also of other civil liberties.

Professor Anna Masutti’s contribution on the other hand considers the question of how unmanned aerial systems (UASs) can be used safely in civilian spaces. She notes that while UASs are already widely used under specific conditions and segregated airspaces in the military context, their use in the civilian sphere is largely still in the early stages of development. Professor Masutti points out that until appropriate measures and regulations are developed, the full potential of civilian uses of UASs will not be realised.

Professor Ugo Pagallo considers questions of traffic safety arising from civilian UVs; in particular their use in border security and policing; water related emergency and hazard management; and as ‘chauffeurs’ or unmanned ground vehicles. According to Professor Pagallo, these uses all affect (or will do so in the future) various aspects of civilian traffic safety, international humanitarian law, contractual obligations and strict liability. Professor Pagallo’s contribution explores the myriad of challenges posed by UVs to these legal frameworks.

Professor Stephan Wu provides an overview and summary of the kinds of cases seen to date concerning the liability arising from the use of unmanned vehicles and robots generally. In doing so, Professor Wu reveals helpful insights about the future of unmanned vehicle liability.

We are extremely honored to have elicited the support and contribution from such an eminent group of scholars and academics. We are very proud of the wide-ranging expert commentary they have produced.

We hope that you find this edition interesting and insightful and hope that it will contribute to the process of regulatory reform in all the areas discussed.

Brendan Gogarty


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