Thursday, March 29, 2012

ASIL Cable on New Voices I: Harmonizing Armed Conflict, Thursday, Mar. 29, 2012, 11:30 am

The Annual Meeting provides a wonderful opportunity for us to immerse ourselves in thinking about a wide range of important international law issues. The New Voices panels are particularly exciting because they highlight some of the work of emerging commentators who represent the future of our field, in this case how the international law of armed conflict should evolve to address the changing nature of and ethical challenges posed by modern warfare. As moderator Laura Dickinson noted, the junior scholars presenting on this panel were selected through a peer review process to have their work highlighted at the Annual Meeting.

The first presenter, Adil Ahmad Haque, discussed his paper, Killing in the Fog of War. This article engages the complex question of how certain a soldier needs to be before using force, and challenges the conventional balancing test approach to resolving this issue. He argues instead that one should have a reasonable belief that the person killed is a combatant and then look at relative risks with a strong presumption in favor of protecting civilians.

The second presenter Markus Wagner's paper on The Dehumanization of Humanitarian Law addresses the need for law to evolve to address technological changes in warfare. He explores the legal, ethical, and political challenges of regulating autonomous weapons systems under conventional doctrines. He argues that international lawyers, rather than just engineers, should help to make choices to about how devices are programmed to help align their behavior with international norms, particularly as evolving artificial intelligence technology may give these devices more capability to make ethically-grounded decisions.

The third presenter, Anna Spain, situated her paper, Confronting Sovereignty in Intrastate War, in the panel's broader conversation about humanity in armed conflict. This article focuses on when and how the international community should intervene in internal conflicts. It argues that the narrow exceptions to state sovereignty do not allow for interventions in some situations where norm balancing might make action appropriate and proposes a new model for addressing these norm conflicts drawing from theory on "right priority" and "right process."

Lillian Aponte Miranda, though selected for this panel, was unfortunately unable to present her paper, The Role of International Law in Intra-State Natural Resource Conflict: Sovereignty, Human Rights, and Development, for medical reasons. It provides a very interesting complement to the other papers through its analysis of how international law applicable to historically marginalized communities interacts with intra-state resource allocation. I include her abstract here to help include her in the online discussion of this panel's issues.

State natural resource development projects have become sites of intense political, social, and cultural contestation among a diversity of actors. In particular, such projects often lead to detrimental consequences for the empowerment, livelihood, and cultural and economic development of historically marginalized communities. This article fills a gap in the existing literature by identifying, analyzing, and evaluating emerging international law approaches that impact the intra-state allocation of land and natural resources to historically marginalized communities, and thereby, carve away at states’ top-down decision-making authority over development. It argues that while international law may have only been originally concerned with the allocation of land and natural resources in an inter-state context, it plays a distributive role today in an intra-state context. It ultimately proposes that an emerging human rights approach to the allocation of land and natural resources supports a peoples-based development model potentially capable of more readily alleviating conditions of inequity and continued subordination for historically marginalized communities.

Laura Dickinson, through her thoughtful commentary on each paper, helped begin a lively discussion continued in audience questions and comments about the cutting-edge questions regarding the law of armed conflict that the panel raises. While the discussion covered too many interesting topics to fully capture in this brief cable, I was particularly struck by the challenges of using the relatively blunt instrument of international law to address the nuances of what occurs in armed conflict today and by the need to build responsiveness to change into our international legal instruments and institutions. These emerging scholars' exploration of how law might interface with hard questions of soldiers' behavior, new technology, the boundaries of sovereignty, and protections for historically marginalized communities opened important conversations for the future of international law. People held a wide range of views about where those conversations should go but the dialogue reinforced the value of bringing ASIL's diverse membership together to discuss these issues and of convening these sessions that highlight our organization's new voices.

(This Cable is Cross-Posted at ASIL Cables.)

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