The Informal Regulation of Drones and the Formal Legal Regulation of War

| March 2015
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Allen Buchanan and Robert Keohane’s proposed Drone Accountability Regime (DAR) has significant implications for a number of debates prominent on the international-relations research agenda, including those about effective institutional design, norm diffusion, the role of soft law in the spread and fragmentation of international law, and the significance of reputation in states’ decision-making. In this short comment, I will not be able to do justice to the contributions the article makes to these debates. Instead, I will focus on the following question: How does the informal DAR relate to, and how would it interact with, existing international treaty and customary (that is, binding) law that currently governs the use of force, including the use of lethal drones? The ethical implications of the regime’s potential implementation would largely depend on its relationship with existing law.

Here the architects of the DAR face a threefold challenge. First, any proposed informal norm that is weaker than existing laws, based on the rationale that those laws are often disregarded or too out of touch with reality, threatens whatever formal compliance may exist. It also undermines the very idea of binding international legal obligations as setting a nonnegotiable minimum standard. However, second, any informal norm that is more stringent than established law is for that reason less likely to meet with acceptance by states. It also raises the question why it is only these specific means of warfare (that is, drones) that should be subject to this more demanding normative standard. Third, at the same time, any proposed informal norm that simply reflects existing legal obligations appears, prima facie, redundant.

How can an innovative informal regime rise to this threefold challenge? The considerable cost of undercutting international law is unlikely to be outweighed by the potential benefits of a weaker informal regime. However, positing informal norms that reframe or exceed legal obligations might be sensible if drone use as a means of waging war really does raise unique challenges. In that case, it could be worth institutionalizing existing obligations in a manner more conducive to eliciting compliance by drone users. If drones are unique, it might even make sense for their use to be subject to informal restrictions that are tighter than current international law. Moreover, if it is likely to have positive spillover effects onto the regulation of other means of waging war, such a demanding drone regime may have broader ethical value. Alternatively, however, a technology-specific regime might close off paths for a more inclusive development of informal norms related to the use of force, and possibly even for new laws themselves. The relation between the ethical value of an informal regime that exceeds the stringency of international law and the persuasiveness of the argument that drones are unique is dialectical. The more we are convinced of the uniqueness of drones, the easier it will be to justify a separate, stricter regime. The more we are convinced of that uniqueness, however, the less beneficial and more potentially detrimental a specific drone regime is for the progressive regulation of warfare in general.

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Category: Issue 29.1, Symposium: Toward A Drone Accountability Regime

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