Noll on Weaponizing Neurotechnology

From Lawrence Solum's Legal Theory Blog, I learned about a forthcoming article in the London Review of International Law by Gregor Noll entitled, Weaponising Neurotechnology: International Humanitarian Law and the Loss of Language.

Here is the rather short abstract:

Are operators of weapon systems which draw on neuroscience, or their commanders capable of applying [International Humanitarian Law] IHL? Only at the price of a decision review system that would be so fundamental as to eradicate the temporal advantages neuroweapons create in the first place. To be meaningful, this review system would need to take the metaphysical foundations of neuroweapons into account.

A bit of a longer summary can be found in the paper's introduction:

This question, formulated in Section C and underlying the remainder of the text, is whether operators of weapons systems drawing on neuroscience, or their commanders, are capable of applying IHL. Section C first explains how rapid processing is traded off against consciousness, and why this might be a problem for IHL. Second, it shows that some scholars, whether from law or from other disciplines, react rather optimistically to the promises of neuroscience. Third, I try to take that optimism to its extreme by sketching the development of an IHL software that could be integrated into future weapons systems, automatising judgements on whether a certain conduct is in conformity with IHL norms or not. This enables me to ask what would be lost if we were to use such a machine. Section D answers this question from a micro-perspective, focusing on the cognitive unity of the human being. It draws on the critique of neuroscience as a degenerate form of Cartesianism that has been formulated within analytical philosophy. Section E is devoted to the loss of language, which leads me to consider the work of the German philosopher Martin Heidegger. In the concluding Section F, I suggest that the ‘nature’ of man as reflected by neuroscience risks to undermine the ability to apply IHL in the use of neuroweapons.

And there are some predictions about the future of warfare that are both fascinating and frightening to think about:

Arms development in general follows a temporal logic of surprise: being first with the latest. My main example of neuroscientific applications in the military domain is very literally about acceleration. In a great number of battlefield situations, the human brain is actually faster than a computer when it comes to perceiving threats, yet a computer is faster than a human being in calculating countermeasures. Obviously, those militaries combining the two – human perception and machine calculation – will gain an accumulated temporal advantage over those who do not. As I will illustrate in what follows, time competes with conscious decision-taking. 

. . .

I believe that neuroweapons are the logical sequel to UAVs, and the debate on the ‘autonomy’ of the latter prepares the ground for the acceptance of neurotechnology in the development of weapons. While currently one operator is needed to control a single UAV, developments take place that will allow a single operator to control a swarm of UAV in the future. Consequently, there will be a strong case for neuroscientific enhancement of the cognitive capabilities of that operator. Today, all the talk is about drones, while we should be talking about the neurotechnology that will follow in the wake of their deployment.

This paper contributes to the broader scholarly discussion over autonomous military robots and the ethical questions they raise. Noll seems skeptical about whether international humanitarian law could govern neurotechnological weaponry since this may come at the "price of a decision review system that would be so fundamental as to eradicate the temporal advantages neuroweapons create in the first place." But as other commentators like Kenneth Anderson and Matthew Waxman argue, the development of autonomous weapons systems is inevitable and the application of legal and ethical rules to these systems should accompany that development as it happens.

The development of autonomous military technology and technology that is connected on a fundamental level to the brain functions of human operators pose interesting legal and ethical questions. While some of this technology may seem fanciful now, I think that it may be a real possibility down the road, and these difficult questions may eventually be unavoidable.

The Legal Implications of Sinking Countries

From the Legal Theory Blog, I learned of Abhimanyu George Jain's recent article, The 21st Century Atlantis: The International Law of Statehood and Climate-Change Induced Loss of Territory (50 Stan. Int. L.J. 1(?) (2014)). Here is the abstract:

International law demands territory as a precondition for statehood. If the Maldives loses its territory as a result of climate change, will it cease to be a state? In light of the negligible contribution of Maldives and similar states to climate change, if they were to lose their statehood and international legal personality on account of climate change, serious questions would arise as to the legitimacy and efficacy of international law. But these states will not lose their statehood, for three reasons. First, in light of the diminishing utility of territory for states, at least for the continuation of established states, territory need not be a necessary requirement. Second, international law is silent as to the extinction of statehood upon physical disappearance of statehood, and equity demands that statehood be preserved in this situation. Third, the political realities of recognition will operate to ensure continuing statehood. But this continuing statehood begs the question of how these states will exist without territory. There are two options: acquisition of new territory or de-territorialised existence. Both are possible but present significant practical hurdles. In the short term, the de jure statehood of these states will be protected, but in the longer term, it is likely that they will cease to exist as states de facto.

I was reminded of an article that I had the opportunity to look over while I was an articles editor for the UCLA Pacific Basin Law Review. That article is Migration for Environmentally Displaced Pacific Peoples: Legal Options in the Pacific Rim, by Gil Marvel Tabucanon. The citation is 30 UCLA Pac. Basin L.J. 55 (2012), but unfortunately I cannot find a publicly available version of the article to link to here. Here is the abstract, though:

This paper explores the complex relationship between the environment and migration, namely the various protection options available for environmentally-displaced Pacific peoples under the laws of the United States, Canada, Australia, and New Zealand. It seeks to ascertain whether flexibility exists in these countries' domestic laws for environmental migrants from neighboring Pacific countries. It asks if humanitarian and ministerial discretion admissions and preferential admission schemes sufficiently address potential Pacific island relocations brought about by global warming and climate change, and identifies both opportunities and challenges in legislation. 

This paper argues that in the absence of an international legal protection regime for environmental migrants, states need to expand immigration opportunites for persons fleeing from environmental threats. In recent decades, the four above-mentioned Pacific Rim states have developed relatively open and liberal migration policies, albeit not specifically geared towards environmental migration. Admitting environmental migrants under equitable and just terms is not only in line with the fundamental values and interests of these Pacific Rim states, but it is also central to their ethical, humanitarian, and domestic legal obligations, although the latter are ad hoc and limited.

These are two of a growing number of articles on how island nations and people living there will be able to address the seemingly insurmountable challenge of rising oceans. This is a growing problem that the international community will need to address at some point soon.

Courtroom Cages

An interesting article in today's New York Times discusses the surprisingly common practice of putting defendants in cages during courtroom proceedings:

Long eschewed as prejudicial by American courts and by the International Criminal Court in The Hague, locked docks, either metal cells or enclosures made of glass or wood, are still common, not just in countries like Russia and Egypt where the judicial systems often face international criticism, but also in many Western democracies, including Britain and France.

The article reports that this practice is drawing international criticism -- largely because placing the defendant in a cage portrays the defendant as violent and dangerous despite the law's presumption of innocence.

Based on some of my previous scholarship, however, I think it would be remiss to obliterate the practice of caging defendants entirely, however. As I point out in my essay, this particular aspect of courtroom procedure may be fitting for a certain class of defendants who pose a particular danger to those around them.

Greenpeace Activists Charged with Piracy

The New York Times reports here Reuters reports here, Eugene Kontorovich reacts and has analysis here.  My previous posts on this issue appear here and here.  As the Times notes, this prosecution is inconsistent with Vladimir Putin's previous remarks that the activists were "obviously not pirates."

Acccording to the Times:

The lodging of such serious charges in the Greenpeace case illustrates how far apart the Russian government remains from Western governments and nongovernmental organizations on issues like freedom of speech and civil disobedience. Russian courts ignored a similar international outcry last year when they sentenced members of the group Pussy Riot to two years in prison for protesting in a church.

The piracy charges carry a maximum sentence of 15 years in prison. It was not clear how many of the 28 members of the crew and the two journalists who were aboard the Arctic Sunrise would ultimately be charged; all of them have been detained for investigation. The court in Murmansk that is handling the matter adjourned on Wednesday with the cases of the ship’s American captain, Peter Willcox, and a number of others still pending. Lawyers for Greenpeace said the hearing could continue with more charges lodged on Thursday.

Kontorovich notes that "such clearly abusive and politicized piracy charges are quite unprecedented in modern history" and argues that this signals that Russia is claiming superpower status and is unafraid of retaliation.

It will certainly be interesting to see how this case develops and how the United States and United Nations react.  Kontorovich encourages the government to challenge Russia's action as a violation of both international and customary treaty law.  Whatever happens, this case will add a notable dimension to modern piracy cases and law.

Students interested in international law would do well to explore this.  I know that if I were still slating articles, a paper piracy would get my attention pretty effectively.

Kontorovich on Why Greenpeace Activists Are Not Pirates

I posted a little while back about Greenpeace's boarding of a Russian oil platform and the subsequent arrest of the activists.  Today, at the Volokh Conspiracy, Eugene Kontorovich posted about the issue.  I suspect that he had received numerous emails following his analysis of a previous case involving Sea Shepherd, and decided to set the record straight.

I was happy to see that I was correct in my earlier conclusion (it was my first foray into piracy law, after all), although Kontorovich makes a wider variety of arguments to support this conclusion.  He writes:

The Greenpeace activities are most certainly not piracy for several reasons. The modern definition of the offense can be found in Art. 101 U.N. Law of the the Sea Convention (UNCLOS III), Art. 101(a)(1).

First, piracy requires an attack against a “ship.” The Greenpeace incident involved an oil rig, which is not a ship because it is not navigable. (The 1988 SUA Convention dealing with maritime violence beyond piracy required a separate protocol to apply to oil platforms).

Second, piracy requires “acts of violence or detention.” Here the Greenpeace activist merely put a poster on the platform. This does not constitute violence. In the Ninth Circuit case, by contrast, the Sea Shepherd vessels allegedly attempted to ram Japanese whalers, hurled projectiles at them, and so forth. While the defendants argued this did not amount to violence, it is certainly more colorable than a poster. The Greenpeace activists certainly committed trespass, but not piracy.

Indeed, it is Russia that fairly clearly violated UNCLOS by seizing the ship for the misconduct of the crew. The arrest of a vessel is strictly forbidden “even as a matter of investigation,” (Art 97(3)), except for piracy. The piracy allegations here are clearly pretextual, making Russia liable to the Netherlands for seizure “without adequate grounds,” Art. 106. 

It would appear that Kontorovich is an influential figure indeed.  The BBC reports that Russian President Vladimir Putin mentioned the Greenpeace Activists earlier today:

Mr Putin, speaking at a forum on the Arctic, said: "It is absolutely evident that they are, of course, not pirates."

But the protesters are not safe yet:

A spokesman for Russia's main investigating agency, the Investigative Committee, said the charges might be changed if new evidence emerges.

Maybe the oil platform was actually a ship.  This would be a significant development indeed.

Pirates Need to Do Something: A Note on Veggie Tales

My previous post on Greenpeace got me thinking about pirates and piracy in general, which in turn caused my thoughts to wander to the days of my childhood when being a pirate sounded like an enjoyable and feasible career option.  Not all pirates seemed romantic, however, especially "The Pirates Who Don't Do Anything."  These pirates were originally described in this Veggie Tales song:

I have learned that the band, Reliant K, released a version of this song, but I'm not at all familiar with the band or the song so I'll leave you to figure out which version is better.

My foray into piracy law for purposes of my last post made me wonder how the Pirates Who Don't Do Anything could ever exist.  As the Ninth Circuit noted in Institute of Cetacean Research v. Sea Shepherd Conservation Society, Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) defines piracy as any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
           (i) on the high seas, against another ship or aircraft, or against persons or property on                    board such ship or aircraft;
           (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any                  State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

This definition of piracy caused me to question the Veggie Tales song.  UNCLOS clearly indicates that pirates must do something, namely engage in illegal violence, detention, or depredation, in order to be defined as pirates in the first place.  If an individuals just "stay home and lay around," they cannot engage in piracy.

Veggie Tales may not be entirely without an argument here, however.  Eugene Kontorovich notes in his article, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, (45 Harv. Int'l. L.J. 183, 2004) that piracy has historically been a universal offense in the international law context.  He further notes in this article that the universal, historic punishment for piracy was death.  The Restatement (Third) of Foreign Relations Law, section 404, comment f states, "a universal offense is generally not subject to limitations of time," indicating that there is no statute of limitations on universal offenses (Judge Kleinfeld pointed this out in his dissent in the later-vacated Ninth Circuit case, Sarei v. Rio Tinto, PLC, 671 F.3d 736, 817 n.128).

The upshot of all of this is that while the Pirates Who Don't Do Anything may not currently do anything but stay home and lay around, if they ever engaged in piracy before, they may still be prosecuted for that piracy.  Notably, none of the singing vegetables ever deny that they ever engaged in illegal violence, detention, or depredation.

If carrying out an act of piracy leaves somebody with a permanent threat of prosecution for that offense, I think that this person (or vegetable) is well within his or her rights to label himself or herself a pirate.

Are Greenpeace Activists Pirates?

The Guardian and BBC report that Russian authorities boarded the Greenpeace ship, the Arctic Sunrise, and arrested a number of activists.  I am not immediately clear about whether Russia's military was involved -- The Guardian simultaneously reports that it was the Russian "military" and "coastguard" but the BBC reports that it may have been Russia's "internal security service," the FSB.

Russia claims that it is arresting the activists for crimes arising from a previous protest where members of Greenpeace boarded a Russian oil drilling platform to protest the environmental impact of the drilling operation.

This whole affair reminded me of the Ninth Circuit's opinion in Institute of Cetacean Research v. Sea Shepherd Conservation Society (2013 WL 2278588).  I learned about that case from Kenneth Anderson's post here and from Eugene Kontorovich's in-depth commentary on the ruling here.  In this case, the Ninth Circuit determined that Sea Shepherd's actions of "Ramming ships, fouling propellers and hurling fiery and acid-filled projectiles" was piracy under the United Nations Convention on the Law of the Sea (UNCLOS) because these were violent actions carried out for private ends.  The court concluded that the actions were violent even though property was the target of these activities.  The court further held that "private ends" included actions taken with environmental activism goals -- "private" simply required that the goals be nongovernmental.

For those who are interested in legal issues relating to piracy (who isn't!?), check out Kontorovich's articles on the subject here, here, and here.  

With Institute of Cetacean Research in mind, were Greenpeace's actions piracy?

I don't think so, at least not based on the facts I have seen in the stories I've read.  Greenpeace's actions seemed to be nothing more than an attempt to board an oil platform.  While weapons were displayed, these weapons all seemed to be in the hands of Russian authorities aboard the platform.  I have no idea how concepts like trespass work on the high seas, but in the absence of "violence or detention or any act of depredation," Greenpeace's actions do not appear to be piracy, at least not under UNCLOS.