Volume 26.1
For better or worse, technology at heart is—except to the extent that artificial intelligence fundamentally becomes involved—not so much a creator as a facilitator and enhancer of human acts, actions and activities, allowing them to become more effective, less costly, or sometimes even just merely feasible. Perhaps nowhere that is more pertinent then when it comes to human activities in outer space, which are still overwhelmingly conducted remotely and hence crucially dependent on technology. Given that “the law” has always been geared to address humans and their acts, actions, and activities, this gives rise to a rather special approach to maintaining and further developing a legal regime for outer space. The present Article intends to address and assess some of the most pertinent aspects of the unique body of space law from precisely this perspective, to shed some light on how “the law” would, could, and/or should handle relevant human endeavours in or with regard to outer space, in particular in the context of legal responsibilities and liabilities.
A number of emerging technologies increasingly prevalent on contemporary battlefields—notably unmanned autonomous systems (UAS) and various military applications of artificial intelligence (AI)—are working a sea change in the way that wars are fought. These technological developments also carry major implications for the investigation and prosecution of serious crimes committed in armed conflict, including for an under-examined yet potentially valuable form of evidence: information and material collected or obtained by military forces themselves.
Such “battlefield evidence” poses various legal and practical challenges. Yet it can play an important role in justice and accountability processes, in which it addresses the longstanding obstacle of law enforcement actors’ inability to access the conflict-torn crime scenes. Indeed, military-collected information and material has been critical to prosecutions of international crimes and terrorism offenses in recent years.
The present Article briefly surveys the historical record of battlefield evidence’s use. It demonstrates that previous technological advances—including in remote sensing, communications interception, biometrics, and digital data storage and analysis—not only enlarged and diversified the broader pool of military data but also had similar downstream effects on the (far) smaller subset of information shared and used for law enforcement purposes.
The Article then examines how current evolutions in the means and methods of warfare impact the utility of this increasingly prominent evidentiary tool. Ultimately, it is argued that the technical features of UAS and military AI give rise to significant, although qualified, opportunities for collection and exploitation of battlefield evidence. At the same time, these technologies and their broader impacts on the conduct of warfare risk inhibiting the sharing of such information and complicating its courtroom use.
Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, beyond global governance. We suggest that interplanetary risks warrant new institutions for risk regulation at the interplanetary scale. We discuss several examples, recognizing that interplanetary risks may be difficult to foresee. Some interplanetary risks may arise in the future, such as if settlements on other planets entail the need to manage interplanetary relations. Some interplanetary risks are already arising today, such as space debris, space weather, planetary protection against harmful contamination, planetary defense against asteroids, conflict among spacefaring actors, and potentially settling and terraforming other planets (whether to conduct scientific research, exploit space mining, or hedge against risks to life on Earth). These interplanetary risks pose potential tragedies of the commons, tragedies of complexity, and tragedies of the uncommons, in turn challenging regulatory institutions to manage collective action, risk-risk tradeoffs, and extreme catastrophic/existential risks. Optimal interplanetary risk regulation can learn from experience in terrestrial risk regulation, including by designing for adaptive policy learning. Beyond national and international law on Earth, the new space era will need interplanetary risk regulation.
Large Language Models (LLMs) have the potential to transform public international lawyering in at least five ways: (i) helping to identify the contents of international law; (ii) interpreting existing international law; (iii) formulating and drafting proposals for new legal instruments or negotiating positions; (iv) assessing the international legality of specific acts; and (v) collating and distilling large datasets for international courts, tribunals, and treaty bodies.
This Article uses two case studies to show how LLMs may work in international legal practice. First, it uses LLMs to identify whether particular behavioral expectations rise to the level of customary international law. In doing so, it tests LLMs’ ability to identify persistent objectors and a more egalitarian collection of state practice, as well as their proclivity to produce inaccurate answers. Second, it explores how LLMs perform in producing draft treaty texts, ranging from a U.S.-China extradition treaty to a treaty banning the use of artificial intelligence in nuclear command and control systems.
Based on these analyses, the Article identifies four roles for LLMs in international law: as collaborator, confounder, creator, or corruptor. In some cases, LLMs will be collaborators, complementing existing international lawyering by drastically improving the scope and speed with which users can assemble and analyze materials and produce new texts. At the same time, without careful prompt engineering and curation of results, LLMs may generate confounding outcomes, leading international lawyers down inaccurate or ambiguous paths. This is particularly likely when LLMs fail to accurately explain particular conclusions. Further, LLMs hold surprising potential to help to create new law by offering inventive proposals for treaty language or negotiating positions.
Most importantly, LLMs hold the potential to corrupt international law by fostering automation bias in users. That is, even where analog work by international lawyers would produce different results, humans may soon perceive LLM results to accurately reflect the contents of international law. The implications of this potential are profound. LLMs could effectively realign the contents and contours of international law based on the datasets they employ. The widespread use of LLMs may even incentivize states and others to push their desired views into those datasets to corrupt LLM outputs. Such risks and rewards lead us to conclude with a call for further empirical and theoretical research on LLMs’ potential to assist, reshape, or redefine international legal practice and scholarship.