(e) In accordance with States’ obligations under international law, in the study, development, acquisition, or adoption of a new weapon, means or method of warfare, determination must be made whether its employment would, in some or all circumstances, be prohibited by international law[.]
This Guiding Principle mimics much of the language used in Article 36 of Additional Protocol I (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts).
Moreover, Portugal notes that this Guiding Principle echoes the Martens Clause as quoted in Paragraph 5 of the Preamble of the CCW: “(The High Contracting Parties) Confirming their determination that in cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.
The Martens Clause is also quoted in international legally binding instruments of IHL, such as the 1899 Hague Convention II on the Laws and Customs of War on Land3 and the 1977 Additional Protocol II to the Geneva Conventions4. In Paragraph 78 of its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice claimed that the Martens clause “(…) has proved to be an effective means of addressing the rapid evolution of military technology.”.
As for the employment of LAWS giving rise to situations where it would be prohibited by international law – and in addition to our previous comments concerning IHL –, Portugal withstands that rules of International Human Rights Law (IHRL) must be considered.
The CCW makes no direct mention of IHRL or its rules, neither do its annexed Protocols. However, the principle of humanity under IHL has at its core elements compatible with IHRL and the relation between the legal frameworks of IHL and IHRL can be of extreme importance in certain scenarios of armed conflict – this relation is for example paramount to understand the legal framework applicable to situations of occupation.
Existing multilateral international treaties can be of importance when reflecting on IHRL as applicable to the use of LAWS. For example, the 1966 International Covenant on Civil and Political Rights (e.g. right to life) and the Convention on the Prevention and Punishment of the Crime of Genocide and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, bearing in mind the possibility of programming a LAW to distinguish and engage only targets with specific physical traits.
Finally, and given our interpretation on Guiding Principle (f), Portugal underlines that it sees Guiding Principle (e) as being applicable to all means of warfare, including hybrid warfare.
3 The Preamble of the the 1899 Hague Convention II on the Laws and Customs of War on Land reads “”Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”.
4 “In cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.”
