I “Demand Management Devices”

From 1948 to 1991, South Africa practiced an extreme form of racial discrimination known as apartheid. Between 1960 and 1983, millions of nonwhite South Africans were forcibly removed from their homes and resettled in racial enclaves under the Group Areas Act. Black South Africans could not vote and were denied basic civil rights. At one time, it was forbidden to publish newspapers in black languages or to teach black students in any language other than the language of the white Afrikaner minority that controlled the country. Decades of internal resistance and international pressure finally propelled the country to end apartheid in the 1990s.

Emerging from its first free election in 1994, the new democracy articulated bold goals for racial and economic inclusion. The new constitution was widely hailed as the most progressive in the world, committing to a long list of human rights. At the same time, South African policy-makers fully embraced capitalist development and modernization. South Africa needed to borrow money and attract foreign investment. This led to strong pressure to privatize public utilities as part of the Washington Consensus list of economic policies then viewed as essential for developing countries. An internal political struggle resulted in a compromise: the country would partially, but not fully, privatize key public services.

The political context of the introduction of prepaid water meters in South Africa has been thoroughly analyzed by Patrick Bond and Jackie Dugard.Footnote ⁴ In the wake of partial privatization, Johannesburg Water continued to be fully owned by the City of Johannesburg. Its operation, however, was largely contracted out to a French company, Suez. From that point forward, Johannesburg Water increasingly emphasized cost recovery as a fundamental principle, notwithstanding the constitutional commitment to water provision as a basic human right. An important component of this strategy was “water demand management,” which focused on reducing the amount of water consumed by households too poor to pay standard fees. One component of demand management involved shifting very poor neighborhoods that had enjoyed piped water on credit to more limited water service.

One way this was accomplished was through the installation of prepaid meters in black areas. These meters did not simply measure the amount of water delivered to homes. Their more significant function was to limit the amount of water delivered. The devices were programmed to let through a set ration of free water each month, a nod to the national and constitutional commitment to water as a human right. To access additional water, however, residents had to purchase tokens in advance. The killer feature of the technology was its ability to ensure stricter water conservation and financial discipline. All this was accomplished while bypassing normal legal procedures for discontinuing water service to a property.

Like any technology, prepaid water meters should not be understood as inherently negative or positive from a human rights standpoint. In theory, interruptive water meters could be deployed in a manner supportive of human rights. The technology undoubtedly made it more cost-effective to provide free water to low-income households. The savings might have been reinvested in expanding access to improved water sources for families with no connection at all. Interruptive water devices could also have been used to create shared access points in water-scarce regions, with water tokens distributed like wartime ration coupons. This point is particularly important to appreciate: the practical impact of a technology depends almost entirely upon the myriad particular decisions made by individuals and organizations implementing the technology in a specific social context.

For example, the human rights impact of prepaid water meters depends significantly on the pricing of additional water supply in relation to the resources of each household. If the household has substantial disposable income and tokens are priced very cheaply, it would be merely inconvenient to maintain a supply of tokens to regularly unlock the water supply. However, if the tokens are quite costly compared to the household’s limited resources, then the introduction of a prepaid meter imposes a new financial hardship. And if the household is truly desperately poor, then the monthly free water ration can become an oppressive ceiling rather than a supportive floor. From a human rights perspective, prepaid meters would have been least problematic in wealthier households. In practice, however, demand management devices were never introduced in areas where residents could easily afford to pay their water charges. The bureaucratic imperative that led to the adoption of this technology was to reduce unpaid water consumption by the extremely poor.

Another crucial design choice is what amount of free water to permit before restriction begins. With a very generous free water allowance, the devices might have no impact on existing water consumption patterns. With a moderate allowance, families might find that they had sufficient water for sanitation, bathing, drinking, cooking, and washing, but perhaps not enough to raise a kitchen garden, mop their floors, or allow children to play with water. With a meager allowance, residents might find that they faced frequent interruptions in water service and significant new pressure on household budgets already inadequate to meet basic needs.

In Phiri, the free water allowance proved to be meager. Johannesburg Water allotted each household just 6 kiloliters (kL) of free water per month. This was a steep 70 percent reduction from the previous estimated consumption of 20 kL per household. This should not be understood as an oversight or unintended consequence. Johannesburg Water deployed the devices specifically to dramatically reduce water consumption by nonpaying households. To achieve this goal, bureaucrats logically chose a ration well below current usage. Johannesburg Water defended the 6 kL figure as designed to provide a household of eight residents with 25 liters (6.6 gallons) of water per person per day. However, the average property in Phiri housed not eight, but sixteen residents. Thus, the free basic water ration actually worked out to a daily allowance of less than 15 liters (4 gallons) per person, on average. This level of water consumption is considered meager even within the setting of a desert refugee camp. Studies have found that limiting consumption to this level significantly increases the risk of disease.Footnote ⁵ Typical Americans use around 333 liters (88 gallons) of water per person per day for home uses.Footnote ⁶ Phiri residents were permitted only 5 percent of this amount.

Apart from the central question of whether water policy allocated enough free water to very poor households, the installation of prepaid meters impacted access to water in other ways. As might be expected with any new technology, the devices did not always work. Some households complained that their meters behaved erratically, accepting tokens but failing to release water. The devices also had not been well designed to allow residents to monitor their usage and estimate how long the remaining supply would last. Instead, the water supply would be cut off with very little warning. This could happen in the middle of cooking, or while caring for children, or at night, when it was not safe to leave the home to purchase additional tokens. Thus, water might not be available when urgently needed, even if the household was willing and able to pay. In one particularly tragic incident, two small children died when the monthly water supply ran out while residents were attempting to put out a shanty fire.Footnote ⁷

Another policy decision surrounding the technology was the degree of information and autonomy provided to residents. Although the water company sought consent from each household prior to installing the prepaid meters, the consent was neither free nor informed. Residents were not given an accurate picture of the risks and benefits of prepaid water devices in advance, and they had no ability to withdraw their consent after experiencing the technology firsthand. Phiri residents who complained about problems after meters were installed were told they could not go back to the old system. Residents who resorted to “self-help” measures by attempting to disable or bypass the water-restriction devices were punished with total disconnection from water service.

Users thus did not get to choose the prepaid meter technology; they were subjected to it. Prepaid water meters were deployed in South Africa to serve the cost-saving and revenue-maximizing goals of the agency that had the power to impose the technology rather than the human needs of the persons subjected to it. The design was optimized to meet the needs of the organization that purchased and implemented the devices, but did not take into account the needs of the people who would be directly affected by the technology. Phiri residents were not in control of the technology and did not have input into its design or implementation. They were not consulted about its parameters or informed of its potential risks. And even after the harmful effects became clear, they did not have the freedom to reject it. Technology became yet another means by which poor, black, politically disempowered South Africans were abused.

II The Mazibuko Litigation

Because Phiri residents lacked the power or autonomy to shape decisions around the prepaid meter technology, they were ultimately forced to seek redress in the courts. Human rights lawyers from the Center for Applied Legal Studies at the University of Witwatersrand represented them on a pro bono basis. The case was first heard in the High Court of South Africa, Witwatersrand Division.Footnote ⁸ The City of Johannesburg initially argued that it had no obligation to provide any amount of free water to the poor, but only a statutory obligation to offer water services for a fee. Justice Tsoka dispensed with that argument swiftly, confirming a constitutional obligation “to ensure that every person has both physical and economic access to water.”Footnote ⁹ This interpretation was grounded upon the South African Constitution’s explicit recognition of the right to water, read in light of international human rights law.Footnote ¹⁰ The High Court upheld the amount of 25 kL per person per day as a reasonable minimum, but emphasized that the city was “obliged to provide more than the minimum if its residents’ needs so demand and they are able, within their available resources, to do so.”Footnote ¹¹ In light of conditions in the Phiri neighborhood, where households are large, sanitation depends upon an adequate water supply, and the residents are “mainly poor, uneducated, elderly, sickly and ravaged by HIV/AIDS,” the court concluded that the 6 kL free water allowance was insufficient.Footnote ¹²

Judge Tsoka went further, however, characterizing the water restriction devices as inherently unconstitutional because of the automatic shutoff function. The opinion first reviewed judicial opinions regarding water disconnections in Brazil, Argentina, France, and the United Kingdom. The Brazilian and Argentinian precedents were characterized as holding that a water company may not interrupt the supply of water due to nonpayment, because this would be a violation of human rights.Footnote ¹³ In France, it was noted, water companies are required to make special arrangements to ensure access to water for poor households, and disconnection for failure to pay requires court authorization.Footnote ¹⁴ In the United Kingdom, prepayment meters had been declared illegal under national statutes because they offered no notice or opportunity for a hearing prior to the cutoff of water supply.Footnote ¹⁵ Similarly, Judge Tsoka held that the use of automatic shutoff devices violated the South African constitutional right to “lawful, reasonable and procedurally fair administrative action,” at least for poor households.Footnote ¹⁶ Judge Tsoka further condemned the lower procedural protections given to Phiri’s poor black residents as “unreasonable, unfair and inequitable … [and] discriminatory solely on the basis of colour.”Footnote ¹⁷ As a remedy, the High Court ordered that all Phiri residents should receive a free basic water supply of at least 50 liters per person per day and be able to opt out of prepaid meters.Footnote ¹⁸

The City of Johannesburg and Johannesburg Water appealed the decision. The Appellate Court also found in favor of the Phiri residents. Its opinion upheld the lower court’s determination that the restrictive meters were unauthorized by law, and set the standard for constitutionally adequate water provision only slightly lower, at 42 liters per person per day. At this point, the City of Johannesburg and Johannesburg Water accepted their loss and did not initiate a further appeal. But the applicants themselves decided to push forward. Despite having obtained most of what they sought, including recovery of attorney fees, they pushed forward in hopes that the Constitutional Court would reinstate the High Court’s 50 liter per person per day benchmark and establish an even stronger precedent.

What happened next was a stunningly disappointing result for the Mazibuko plaintiffs. To everyone’s surprise, the Constitutional Court reversed every aspect of the prior decisions. Instead, the Constitutional Court used the Mazibuko case as an opportunity advance a more conservative vision of “the role of courts in determining the content of social and economic rights.”Footnote ¹⁹ While recognizing the constitutional right to water, the opinion refused to assign any real content to that right. It firmly rejected the notion of setting any quantitative threshold for a constitutionally adequate water supply.Footnote ²⁰ Contrary to the lower courts’ reasoning, the Constitutional Court sided with Johannesburg in insisting that the right to water “does not confer a right to claim ‘sufficient water’ from the state immediately.”Footnote ²¹ Rather, it “requires the state to take reasonable legislative and other measures progressively to realise the achievement of the right of access to sufficient water, within available resources.”Footnote ²² In judging the city’s water policies as lawful and reasonable, the court went out of its way to give the state the benefit of every doubt. The opinion repeatedly emphasized that judicial review in the area of social and economic rights should be very deferential to the democratically accountable branches of government.Footnote ²³ Rather than strictly scrutinizing the state’s actions, as the High Court and appellate judges had done, the Constitutional Court looked only for a rational basis.

Indeed, the opinion strongly suggests that the sole function of courts with respect to social and economic rights should be to provide a venue where citizens can require government agencies to publicly explain the reasons behind their policies.Footnote ²⁴ This spotlight effect can pressure the government to revise its policies, as happened in this case, with the water agency making several concessions as the case wound its way through the courts. The opinion concluded optimistically:

The opinion’s frequent explicit references to “social and economic rights” make clear that this deferential approach to judicial review is reserved specifically for socioeconomic rights. Thus the secret to gaining stronger judicial protection against the use of technology to the detriment of human rights – at least in South Africa, and likely elsewhere as well – is to position it within more familiar frames of traditional civil rights protections against government abuses. The right to science can point the way to such an approach.

III The Right to Science

When the Mazibuko case was being litigated in 2007–09, the conceptual foundation for the right to water had only recently been laid. At that time, “the right to science” was not yet even a term in human rights discourse. It was thus not possible for the Mazibuko lawyers to consider framing their case in terms of the right to science, in addition to the right to water. Since that time, however, the right to science has been the subject of significant normative development by scholars and within the United Nations system.Footnote ²⁶

The right to science offers two ways of framing the problems posed by prepaid meters. One is to focus on the aspect of the right to science that calls for expanding access to technology, particularly to what the Special Rapporteur has described as “technologies essential for a life with dignity.”Footnote ²⁷ Modern indoor plumbing, which permits washing, bathing, cooking, and sanitation, has a strong claim to be considered an essential technology. In this way, the right to science might provide a hook for constitutional litigation in the same way that the right to water did. This view, however, also lends itself to similar weaknesses. This aspect of the right to science is a positive rights claim, subject to the logic of progressive realization. Many courts are hesitant to impose minimum core standards for essential services. Yet without judicially enforced minimums, it often seems impossible to make out a clear violation.

There is a second and, in my view, more interesting way of approaching the right to science as it relates to prepaid meters: to focus on the aspect of the right to science that calls for states “to prevent and preclude the utilization of scientific and technological achievements to the detriment of human rights and fundamental freedoms and the dignity of the human person.”Footnote ²⁸ This approach is based on the notion that technologies are not inherently beneficial or harmful. Problems arise only when technologies are deployed in ways that are detrimental to human rights. Certain categories of technology are more likely to be problematic, however, an idea I will return to later in this chapter.

The right to science offers a framework for anticipating and responding to potential problems through human rights safeguards. This way of framing the legal challenge to demand management devices will refocus attention away from the question of how much water is sufficient – with all the attendant complexity, difficulty, and resistance to defining a quantitative minimum core to be enforced by courts – and instead toward recognition of the coercive application of the restrictive technology as the fundamental harm to be prevented. This way of looking at the right to science presents a classic negative rights claim, a right to freedom from harmful state action. Viewed from this perspective, Phiri residents suffered from a violation of their right not to be subjected to technology in a way that was harmful to their human rights and human dignity.

One way to understand the rollout of prepaid water meters in Phiri is as a massive technological experiment, conducted upon thousands of vulnerable people. Indeed, officials at Johannesburg Water understood the Phiri effort as an experiment. The stated intent was to pilot an unproven technical solution, in order to decide whether to roll it out more broadly. The Phiri prepaid water experiment was problematic for a number of reasons. It involved an unproven technology designed to restrict a substance vital to human life. It was conducted on a very large group of people who were particularly vulnerable by reason of their extreme poverty, including children, pregnant women, elderly people, and people suffering from HIV/AIDS, tuberculosis, and malaria. Subjects were coerced into participating and had no freedom to withdraw from the experiment once it started – in violation of the human rights principle that groups nonconsensual scientific experimentation with torture.Footnote ²⁹ Fewer than twenty-five years after the end of apartheid, only black South Africans were selected for participation. Had university researchers proposed to run such an experiment, they would never have received ethical approval.

IV Human Rights Safeguards

After World War II, Nazi scientists were tried for war crimes for failing to follow internationally accepted ethical standards. The Nuremberg Code, the first international attempt to articulate these standards, remains a foundational document in scientific ethics. The World Medical Association’s 1964 Declaration of Helsinki similarly articulates basic standards for human subjects research and is regularly updated. While both of these documents are specifically directed to medical research, the 1978 Belmont Report is framed more broadly.Footnote ³⁰ Its intent was to elaborate “broader ethical principles [to] provide a basis on which specific rules may be formulated, criticized, and interpreted.”Footnote ³¹ The Belmont principles continue to serve as touchstones for research ethics internationally, most significantly in the Universal Declaration on Bioethics and Human Rights.Footnote ³² The high level of generality of these principles makes them particularly useful for thinking about human rights obligations related to the application of new technologies.

V Conclusion

The Mazibuko water dispute highlights the harm that even innocent-seeming technologies can do in the context of a power disparity between designers and users. From beginning to end, this problematic technology was controlled by a powerful institution that designed and implemented it to serve its own purposes, with little regard for the wishes of the vulnerable people subjected to it. The result was a series of decisions about implementation that resulted in serious harm to human dignity, health, and life.

Despite the country’s having one of the most rights-protective constitutions in the world, South Africa’s Constitutional Court felt unable to remedy this harm within the framework of the right to water. Reframing the facts of this case through the lens of the right to science, however, puts things in a very different perspective. The state is no longer engaged in a difficult process of progressive realization of socioeconomic rights, which courts are arguably ill-suited to second-guess. Instead, the state is more clearly seen to be actively violating the human rights of its citizens through its own reckless actions.

The implementation of a new, unproven, and potentially harmful technology calls for special ethical and legal safeguards to prevent abuse and harm. Even in jurisdictions where the right to science is not explicitly recognized, the framework of human rights safeguards as protection against problematic technologies still works. South African lawyers, for instance, might assert the right to freedom and security of persons, which is constitutionally defined to include the right “not to be subjected to medical or scientific experiments without their informed consent.”Footnote ⁵³ This could then be interpreted by South African courts with reference to international practice and norms related to science, such as the Belmont Report and the Universal Declaration on Bioethics and Human Rights.

Courts of law are well positioned to adjudicate human rights violations within this framework. This approach does not require courts to set minimum standards for technical performance or to reach the conclusion that a particular technology does or does not violate human rights. Instead, it asks courts to do something that is uniquely within their institutional competence: to evaluate the sufficiency of procedural safeguards. The Belmont principles offer a framework for defining the procedural rights that must be upheld when people are subjected to unproven and potentially harmful technologies, in order to prevent abuse and minimize harm. Where these procedural rights are not respected, a court might either order a technological experiment to be suspended or require specific new safeguards, such as improved consent procedures, special protections for vulnerable populations, or the freedom to opt out. A court might also order financial compensation, a formal apology, or other remedies to rectify past harm. Where the evidence demonstrates a propensity for repeated violations, a court could mandate human rights training or the creation of an ethical review board. These measures might also be stipulated by means of a settlement negotiated between the parties.

A central function of ethical scrutiny of human subjects research is to provide external oversight over potentially harmful action before it takes place. This can help to guard against conflicts of interest, where a particular researcher or agency may be insufficiently concerned with the impact on individuals involved because of their own interest in seeing the project through. Yet an equally important function of ethical review is to encourage researchers to be self-policing, in order to sensitize them to their professional duty to protect their subjects’ interests and encourage them to design research protocols to minimize the potential for harm. Had the Johannesburg authorities subjected their plans for the Phiri trial of prepaid meters to an ethical evaluation of this sort, they would likely have chosen to redesign the technology, policy, and procedures, avoiding significant harm in the process.

The introduction of unproven and potentially dangerous technologies, whether formally conceptualized as research or not, should be subjected to similar safeguards. Individuals subjected to such technologies without their consent should be able to seek redress in a court of law. That court should consider whether the technology’s introduction was undertaken with appropriate consideration for human rights, in the form of procedural protections such as informed consent, risk-benefit analysis, and concern for vulnerable populations. Legal accountability along these lines would focus the attention of public interest advocates, lawmakers, bureaucrats, and corporations on the adoption of appropriate safeguards to minimize risks arising from the introduction of unproven and potentially harmful technologies. The possibility of legal liability would incentivize desirable internal caution. The same principles provide the framework for exercising that self-scrutiny within corporations and administrative agencies, as part of policy and technological design.

I Introduction

This chapter will review the broad strategy to link human rights and climate change, focusing specifically on how well the strategy works to strengthen obligations on developed countries to transfer technology that can reduce or mitigate the effects of increased carbon emissions. Elements of this strategy include regulatory action such as exceptions to patent protection, performance and technology transfer requirements for investments, compulsory licensing, price controls, and other measuresFootnote ¹ to make climate technologies available and affordable for the populations that need them most. The chapter posits that the state-centered “development” approach that has dominated both economic development and climate discourse to date has failed to provide a sufficient foundation for realistically addressing the issue of technology transfer.Footnote ²

This chapter argues that the human rights approach solves two key problems that the development framework does not. First, it enables differentiation to take place, not between states, but between more vulnerable and less vulnerable populations within countries. It thus enables a focus on the most vulnerable populations, and in doing so also provides a basis for limiting the scope and nature of the demand for technologies to address climate change. Second, by limiting the scope of needed technologies, a human rights approach makes it more likely that such technologies will be made available to populations in need. If they are not, and lower-resource governments must act to secure climate change mitigation technologies for their citizens, the human rights approach will limit the grounds upon which actors in developed countries can challenge these decisions.

The United Nations Framework Convention on Climate Change (UNFCCC), ratified in 1992, is the international treaty framework that governs global efforts to combat climate change. This treaty uses a state-centered development framework for its legal and political framework of duties and rights,Footnote ³ with the unit of analysis being the state for both climate mitigationFootnote ⁴ and adaptation. The 1997 Kyoto Protocol governs the UNFCCC States Parties’ legal obligation to limit greenhouse gas GHG emissions as measured at the economy level.Footnote ⁵ The UNFCCC also creates a state-to-state obligation to provide technological and financial support for climate change mitigation and adaptation.Footnote ⁶

The development approach embodied in the UNFCCC aggregates needs and achievements at the national level rather than focusing on various strata of society that often do not evenly embody the risks and benefits of technological, social, and environmental change. Cost-benefit calculations can end up obfuscating the losses suffered by some portion of the population by counting the benefits to other portions of the population against them. This is particularly problematic from a human rights perspective when the portion of the population that suffers the loss is already disadvantaged while the portion that benefits is already privileged.

A human rights approach ensures that the individual rather than the nation as a whole is the primary beneficiary of actions that include technology transfer. It strengthens the fairness claim from both sides: developing countries can make a strong claim that any action they take is in the interests of specific vulnerable populations, and that they are not engaging in pure protectionist mercantilism or industrial policy favoring well-connected industrial actors. Developed countries providing financial and technological support can insist that this support be targeted primarily at vulnerable populations, making it easier to justify the spending to their citizens.

The effectiveness of this fairness claim is directly linked to the instrumental effect of a human rights approach. The human rights approach shifts away from the question of state-to-state obligations and instead asks the more direct question about who within each country should be the recipient of technology transfer aimed at fulfilling rights. This has several effects. Most importantly, it removes the danger of cost-benefit calculations that try to aggregate gains and allow particular individuals or groups to be sacrificed for the sake of the general welfare. It also removes from the set of options those that would more negatively impact vulnerable populations. A classic example of this is hydroelectric dam construction that involves the forced resettlement and land dispossession of marginalized communities. While the electricity generated may be cleaner and result in lower emissions, thus meeting the country’s obligations in the UNFCCC, the displacement and dispossession inflicts irreversible harms on those affected by it.

The human rights approach solves another core problem in climate technology transfer: how to limit the scope of technologies for which action is needed and justified. At the aggregate level, the scope of technologies necessary to achieve climate mitigation and adaptation within the necessary time frames is enormous. There is no global or UNFCCC coordinating principle or mechanism for identifying and prioritizing technology needs in developing countries. This leaves decisions about which technologies to pursue at the discretion of demandeur developing countries, and the decision about whether to provide technology at the discretion of developed countries. This chapter argues that by focusing on impacts as felt by individuals on the ground, a human rights approach provides such a mechanism for prioritizing technologies needed to address climate impacts.Footnote ⁷

The next section of this chapter describes the limits of the development framework, tracing it from its roots in postcolonial demands for a New International Economic Order (NIEO) to the bargains embodied in multilateral environmental treaties. The subsequent section describes the two key problems posed by the approach within the UNFCCC: the fairness issue and the scope of technologies. The final section discusses the ways in which a human rights approach could solve some of the problems inherent in the development approach.

II The Limits of the Development Approach

III How Does a Human Rights Approach Solve the Problems Posed by the CBDR/Development Approach?

Having discussed the weakness of the common but differentiated responsibilities approach for fairness and justice claims and for delimiting the scope of technologies, this section discusses how taking a human rights approach can be used to address these weaknesses. As an initial step, I focus on a key element of the human rights approach: the requirement that states prioritize action on behalf of citizens whose rights are least fulfilled or most under threat.Footnote ⁹⁵

Locating the right to development within the individual rather than the state has been central to a human rights-based approach to development.Footnote ⁹⁶ The CBDR/development approach clearly does not focus on the fulfillment of individual human development, and primarily only acknowledges state interests in climate mitigation and adaptation.

This deficiency points us to the first step necessary for a human rights-based approach to climate change: the unit of climate impact analysis must be the individual and the community rather than the state. A rights-based approach is also helpful in the context of climate change, because it identifies both the developing country itself and other states in the international community as potential duty bearers with the obligation to provide for technology transfer.Footnote ⁹⁷ In this chapter, I focus on those impacts that trigger a human rights claim against both the government of the developing country where the harmed individual resides and the developed country that fails to provide technological or financial support to prevent or address climate impacts.

A human rights approach also provides a basis for prioritizing policy choices that benefit vulnerable individuals even over other choices that might be more beneficial in the aggregate.Footnote ⁹⁸ Aggregate data does not reveal how the benefits of development are distributed; a human rights approach, in contrast, attends to these distributional questions.Footnote ⁹⁹ Finally, a human rights approach aims not just to identify rights that are threatened by climate change or to specify duty holders, but to further argue that the need to protect rights requires access to technologies to address the harm.

A human rights framework for responding to climate change begins with an analysis of the rights that are negatively impacted by climate change. Thus, the first limiting principle of a human rights approach is that it is defined by the very specific suite of internationally recognized, legally cognizable rights. These rights are enshrined in international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), as they have been elaborated by human rights institutions, and, where appropriate, judicial and quasi-judicial mechanisms. In this, I take a conservative approach that does not rely on newer or derivative “rights,” such as the right to development or the right to energy. My concern here is to evaluate and elaborate on how a relatively uncontroversial reading of traditionalFootnote ¹⁰⁰ human rights obligations can serve to: 1) strengthen fairness and justice claims to technology transfer; and 2) enable limitations on the scope and prioritization of technologies for technology transfer.

The human rights framework provides a very circumscribed justification for claims of access to mitigation technologies.Footnote ¹⁰¹ By focusing on impacts, we inevitably focus on adaptation. This, however, is a feature, not a “bug” of the approach. Without a focus on impacts, the causal link to states’ obligations is missing, or at least attenuated.

IV Conclusion

By refocusing the discourse away from the obligations of states to one another and toward the obligations of all states to vulnerable populations, a human rights approach can bypass the continuing impasse at the UNFCC on how developed and developing countries should be categorized and assigned obligations. This chapter describes the means by which developing countries can frame their adaptation action (and, secondarily, their mitigation action) to make a stronger claim on developed countries to assist them in meeting their human rights obligations to their vulnerable populations. This kind of framing has the potential to transform the discourse from a “donor” framework, in which developed countries provide technology at their discretion, if at all, to a “demandeur” framework, in which vulnerable citizens of developing countries can make direct claims to technologies in ways that developed countries may find more difficult to challenge on legal, political, or economic grounds.

I Introduction

Bioethics is, without doubt, the premier mode of governing the biomedical and human life sciences and their technologies: sciences that “have ethics”Footnote ¹ are widely lauded as good sciences – the epitome of responsible research and innovation. But international human rights law and practice also has something to say about science and technology, and about bioethics. There is, for instance, a European Convention on Human Rights and Biomedicine, which has a preamble invoking “the need for international cooperation so that all humanity may enjoy the benefits of biology and medicine,” as well as a range of protocols on matters such as biomedical research, human cloning, and genetic testing.Footnote ² There is also a Universal Declaration on Bioethics and Human Rights,Footnote ³ which is part of a series of UNESCO initiatives on science, technology, and rights.Footnote ⁴ And recently, the UN Special Rapporteur on cultural rights expressed the view that it is “essential” for the ethics codes of professional scientific organizations to be “explicitly informed by human rights.”Footnote ⁵

For me, the coexistence of bioethics and international human rights law and practice in governing the biomedical and life sciences and their technologies gives rise to two questions. First, how do bioethics and bioethicists see human rights in general, and international human rights law in particular? Second, how do human rights, and international human rights lawyers in particular, see bioethics? These questions, to be clear, are not about turf war or about acclaiming interdisciplinarity. They are about starting over, about engaging in fresh conversation between fields that have a history of shared interests but little in the way of mutual understanding.

Fresh conversation is made easier by fresh content. In this chapter, I suggest international human rights case law as a source of such content. I see its appeal as twofold. First, human rights case law focuses us on what “is,” obliging us to look at how the legal and the ethical are figured in judicial practice. Second, it is less likely to alienate than either philosophy, on the one hand, or stronger forms of legalism, on the other.

To develop these claims, I focus on an institution that has been described as “the conscience of Europe,”Footnote ⁶ the European Court of Human Rights. This court hears allegations of violations of the European Convention on Human Rights (ECHR), the “jewel in the crown” of international human rights law.Footnote ⁷ Its decisions bind contracting states, and its views tend to be cited both by other international human rights courts and quasi-courts and by national courts within and beyond Europe. It operates with a doctrine of deference to state decision-making in certain circumstances, which can irritate some who are purist about human rights, but appeals to others as an appropriate way to recognize that universal values are instantiated in specific local contexts.

Taking my lead from bioethics’ longstanding interest in both the start of life and biotechnology, I examine the court’s case law on assisted reproductive technologies (ARTs)Footnote ⁸ – a total of six cases, four of which include a judgment from the Grand Chamber of the court. The cases range across the technologies of assisted insemination (AI), in vitro fertilization (IVF), and pre-implantation genetic diagnosis (PGD),Footnote ⁹ and they focus primarily on limits and prohibitions on access to ARTs.

In Evans v. United Kingdom, the first of the cases, the applicant sought access to embryos that were her only chance of having a child to whom she would be genetically related.Footnote ¹⁰ The embryos had been created using her eggs and the sperm of her then-fiancé before she underwent treatment for ovarian cancer. When the couple separated, he withdrew permission for use or continued storage of the embryos, and under the law in the United Kingdom, this meant the embryos would have to be destroyed. The next case, Dickson v. United Kingdom, involved a married male prisoner serving a life term and his female partner, who challenged a refusal to allow them to access AI, which was their only option if they were to try for a genetically related child.Footnote ¹¹ Next, in S.H. and Others v. Austria, two married heterosexual couples challenged a legislative ban on IVF with donor gametes.Footnote ¹² In Costa and Pavan v. Italy, a married heterosexual couple who carried a serious inheritable genetic condition challenged a blanket ban on PGD.Footnote ¹³ In Knecht v. Romania, a woman complained inter alia of the refusal by medical authorities to allow her to transfer her embryos from the location where they were being stored to a clinic of her choice.Footnote ¹⁴ Finally, in the most recent case, Parrillo v. Italy, a woman who no longer wanted to use IVF embryos for reproductive purposes following the unexpected death of her male partner brought a challenge to a legislative ban on donating embryos to scientific research.Footnote ¹⁵

So what am I aiming to do by looking at these six cases? Overall, the chapter is more exploratory and exhortatory than normative, which makes it unusual as a piece of legal scholarship. I am stepping back from what the law “ought to be” in order to encourage the fresh conversation that I want to see take place between bioethics and international human rights law and practice. To be openly and actively normative could encourage hubris – a sense that international human rights law and practice “does it better” than bioethics. It would almost certainly encourage allegations of hubris – a sense that international human rights lawyers think they and their field are the best. As we shall see, the relationships between bioethicists and international human rights lawyers are complicated enough; to focus on what a human rights-based approach to ART “ought to be” would only add to the trouble and hinder conversation.

I use the ART cases to address two questions. First, does the European Court of Human Rights have a view on how bioethics relates to international human rights law? Second, do the cases offer food for thought, not just for human rights lawyers, but for bioethicists too? Above all, do they incite us to think about the place of international human rights law in the space of bioethics, and the place of bioethics in the space of international human rights law?Footnote ¹⁶ These latter questions can, of course, be addressed in other ways as well. For instance, as Lea Shaver demonstrates in Chapter 2, we could concentrate on the right to science, framing any problematic application of technology as an “experiment” and foregrounding ways in which particular bioethics principles could be incorporated into human rights law and practice, and technological design and implementation, in order to prevent or mitigate harm.

This chapter, by contrast, begins by offering a short account of interactions to date between bioethics and international human rights law and practice. It describes the lack of interest displayed by the latter, and the harsh, persistent complaints concerning human rights that come from the former. The next sections offer an introduction to the ART cases. They explore the court’s descriptions of the technologies involved and the issues to be addressed. They also examine the court’s account of good lawmaking in this field (including how it sees its own role). I also consider the extent to which the court has broached the relationship between the legal and the bioethical. The last section provides a conclusion.

II Entwining and Estranging: A Short History of the Relationship Between Bioethics and International Human Rights Law and Practice

In this section, I sketch how bioethics and international human rights law and practice view each other, and how they are viewed by critics. I want, in particular, to look at how the two domains have both entwined and estranged. To do this, I begin with bioethics, the word itself coming from two Greek words, bios (life) and ethos (values or morality), and used today in multiple registers. It is difficult to parse these registers, so my plan is to focus on the principal ones – namely, bioethics as an intellectual field and as a governance practice.Footnote ¹⁷

I know that immediately some will insist that bioethics is not a field, but a discipline or set of disciplines, an expert domain, or a topic. I am no expert, but I suspect that diverse national histories and diverse priorities for the future of bioethics make it important to accommodate a range of terms. However, because I need to move forward, my hope is that even if the idea of bioethics as a field is controversial, there will be common ground on the following: first, bioethics has an interdisciplinary character; second, philosophy, law, and medicine have been key contributors to that interdisciplinary character; third, bioethics has had a longstanding focus on patients and research participants; and fourth, more recently, it has been focusing on technology, in particular technologies of human reproduction and enhancement.Footnote ¹⁸

As to the second register, which I have labeled “bioethics as a governance practice,” here too it might be best to acknowledge that contemporary bioethics hosts a range of such practices,Footnote ¹⁹ including the ethics committees of hospitals and research institutions. But my particular interest is “public ethics,”Footnote ²⁰ by which I mean the practices of political or advisory bodies on bioethics. These bodies may be appointed by one state acting alone or by a group of states; they can also be independent of the state. The United Kingdom’s Nuffield Council on Bioethics is one example of the sort of body I have in mind; the Council of Europe’s Committee on Bioethics is another. Other examples include the Deutscher Ethikrat (Germany’s National Ethics Council), the US Presidential Commission for the Study of Bioethical Issues, the Comitato Nazionale per la Bioetica (Italy’s National Bioethics Committee), UNESCO’s International Bioethics Committee, and the European Commission’s European Group on Ethics in Science and New Technologies.Footnote ²¹

Interestingly, what I have just said about bioethics could also be said of international human rights law and practice. The latter, in other words, is both an intellectual field and a range of governance practices, with mechanisms and institutions ranging from courts and quasi-courts to the UN Special Procedures.Footnote ²² There are other parallels, too. There is, for instance, a range of resonant preoccupations, including “the vulnerable human subject,” dignity, autonomy, and relatedly the requirement for informed consent prior to treatment. There are also stories of shared origins. Typically, this includes the Doctors’ Trial in Nuremberg in the aftermath of World War II, but there are also country-specific accounts that emphasize particular braidings of bioethics and rights; in the United States, for instance, some commentators point to the significance of the civil rights era for both fields.Footnote ²³

In a further parallel, both bioethics and international human rights law and practice seem rife with insider and outsider criticism. The critics of international human rights law and practice typically denounce it as both hegemonic and replete with out-of-date and inappropriate ideas and techniques. Meanwhile, the critics of bioethics accuse it of becoming “institutionalized ethics,” both too focused on conforming to standardized rules and regulations (and too keen to wrap diverse settings and states in a timeless, placeless, one-size-fits-all “global bioethics”) and too quick to endorse and promote technology’s promised utopias.Footnote ²⁴

What’s more, bioethics and international human rights law and practice have faced some similar criticisms. In particular, each has been accused of neglecting lived experience and structural injustice, and of overemphasizing freedom, autonomy, and consent and, more broadly, principles-based reasoning.Footnote ²⁵ Typically, the most trenchant critics of each field are blunt about what needs to happen: bioethics (and, equally, international human rights law and practice) should “get out of the way.” For some of these critics, “progress” is the preferred guide; for others, it is “justice.” To be fair, though, whether we are talking about bioethics or international human rights law and practice, a majority of critics argue for reform and reorientation rather than abandonment.

Parallels are, however, just part of the story; there is considerable contrast too. Thus, bioethicists have spent far more time criticizing and engaging with international human rights law and practice than vice versa.Footnote ²⁶ And bioethicists, not surprisingly, are far more skeptical of law than their international human rights counterparts. There are plenty of bioethicists who are also highly skeptical of human rights. More broadly, as the American Association for the Advancement of Science has observed: “Human rights per se are often viewed as irrelevant to the practice of ethics.”Footnote ²⁷ Why is that?

The lack of a convincing theory of human rights is the biggest stumbling block. It has become a particular irritant in the context of the international right to health, where bioethicists and philosophers line up to insist that neither law nor legal scholarship offers a way to make sense of this right in the context of limited resources.Footnote ²⁸ Other stumbling blocks to bioethical engagement with rights include the advocacy and activist orientation of international human rights law and practice, and its substantial focus on the state. There are also some bioethicists who would take the “human” out of human rights, either because they prefer to focus on “persons,” or because they see human rights as an obstacle to enhancement technology’s promise of “post-humans.”Footnote ²⁹ Others, focused on the doctor–patient relationship, believe that human rights law risks denuding medical ethics of its capacity to be the “soul of medicine.”Footnote ³⁰

Thus, despite the fact that bioethics has engaged with rights-based approaches in the process of broadening its own interests from the doctor–patient relationship and questions concerning new technologies, there is an overall sense that bioethicists do not see human rights as a legitimate form of analysis and reasoning. There is a sense, too, that for those who play a formal part in public ethics, consensus might be hard to achieve if all parties were to come to the table claiming “their rights.”

Another clear contrast is that philosophy is central to bioethics, whereas it is less common and less valued in international human rights law and practice. Equally, by contrast with bioethics, international human rights law and practice has had low levels of interest in ART.Footnote ³¹ As far as technology is concerned, advocates of human rights have tended to engage with information and communication technology (including how it can be used to expose human rights violations), and with the uptake of technology in the criminal justice sphere. And as regards reproduction, the central foci of international human rights advocacy have been safe motherhood, forced sterilization, and the vast unmet need for access to modern contraception and associated information and services.Footnote ³²

“Safe motherhood” requires engagement with abortion, but as the term itself indicates, the emphasis has been on unsafe abortion as a major public health concern, rather than competing rights claims. States have been encouraged to decriminalize abortion and to guarantee access to quality post-abortion care in order to reduce the high levels of maternal mortality and morbidity that stem from unsafe abortion. Rights arguments have been put aside in order to avoid conflict and dissent that could stall state action and leave pregnant women at risk of injury and death. Relatedly, when asked to adjudicate upon state practice with respect to abortion, international courts (including the European Court of Human Rights) have avoided definitive statements on the status of the fetus. Their principal focus has been whether states, where abortion is lawful in at least some circumstances, have taken steps to ensure that abortion on these grounds is available in practice.Footnote ³³

III A Poor Perch? Introducing the ART Cases from the European Court of Human Rights

The aim of this section, and the two that follow, is to explore the extent to which the six ART cases from the European Court of Human Rights can open up conversation between bioethicists and international human rights lawyers. The conversation could simply be about the regulation of ART, or it could be about the broader question of the optimum relationship between the legal and the ethical in regulation of the life sciences and their technologies – in particular, the relationship between human rights-based approaches to science and sciences that “have ethics.”

On first reading, the cases lack promise in that none of them makes explicit reference to bioethics.Footnote ³⁴ There is also little by way of general comment on ART and human rights, and the technological dimensions of assisted reproduction seem to be under the radar too. Thus, IVF is described as a “fast-moving” technology, “subject to particularly dynamic development in science.” And its use is said to raise “sensitive moral and ethical issues.”Footnote ³⁵ Overall, however, the cases lack the level of engagement one finds in cases from other fields of technology, notably S and Marper v. United Kingdom, in which the court issued a warning that any uptake of technologies in the criminal justice sphere must not “unacceptably weaken” the right to respect for private life, family, home, and correspondence in Article 8 of the ECHR.Footnote ³⁶

The judges also seem to be inconsistent in how they understand the technology involved, with some evidence that different labels align with different levels of scrutiny of state practice. In S.H., which involved an unsuccessful challenge to Austria’s ban on IVF using donor gametes, the joint dissenting opinion spoke exclusively of “medically assisted procreation,”Footnote ³⁷ thereby framing ART as medical, not technological, and as an ordinary, understandable way of “assisting nature.” The majority, by contrast, used the phrase “artificial procreation,” taking its lead from the title of the law in the respondent state.

Overall, the cases display little depth or range. They indicate that the right to respect for private life encompasses the right to respect for the decision to become or not to become a parent, including in the genetic sense.Footnote ³⁸ The right of a couple to conceive a child and to make use of medically assisted reproduction for that purpose is protected as an “expression of private and family life.”Footnote ³⁹ But this barely scratches the surface of the issues that arise. Relatedly, there is no sense of engagement across “different worlds of lived experience” of ART – engagement of the sort that is standard in fields like anthropology and sociology.Footnote ⁴⁰ The court, of course, does not review legislation or practice in the abstract; it focuses on examining the issues raised by the case before it.Footnote ⁴¹ Nonetheless, there is a sense of missing context and problematic assumptions.

In S.H., for instance, the majority spent a good part of its judgment looking at claims made by the respondent state as to the risks of permitting IVF with donor eggs. But then, with no discussion of whether the context was the same or not, it took its reasoning on this matter and applied it to donor sperm.

Similarly, in Evans, in which the applicant unsuccessfully sought access to six embryos that were her only chance of having a child to whom she would be genetically related, the court made no reference to the differing levels of sophistication of egg and sperm freezing – even though the opportunity to freeze eggs, rather than embryos created with her then-fiancé’s sperm, would have avoided the difficulties that followed when their relationship broke down and he withdrew his consent to the storage or use of the embryos. The Evans court also made no reference to the requirement in domestic law (since amended) that treatment providers take account of the child’s “need for a father,” a requirement that could well have blocked the applicant’s access to treatment if she had asked to use donor sperm to fertilize her eggs, rather than the sperm of her then-fiancé.

The more recent decisions are just as frustrating. In Costa and Pavan, the applicants, who were carriers of cystic fibrosis, succeeded in their challenge to Italy’s blanket ban on PGD. Crucial to the court’s decision was the fact that Italian law was inconsistent: the law banned PGD (which allows the identification of genetic abnormalities in embryos created via IVF), but allowed abortion on grounds of fetal malformation. Under Italian law, in other words, the applicants could commence a pregnancy, take a prenatal genetic test, and request an abortion if the test suggested a malformation, but they could not have their embryos screened prior to implantation. For the court, it was entirely wrong that the applicants were put in such a position.

It is, I think, easy to empathize with the court on this, but where I have less empathy is the court’s limited engagement with PGD. The court focused exclusively on the inconsistency of Italian law, making no real comment on PGD from a rights perspective. It did note that the applicants had not complained of a violation of a “right to have a healthy child.” The applicants were, it said, relying on a more “confined” right, namely, “the possibility of using ART and subsequently PGD for the purposes of conceiving a child unaffected by cystic fibrosis, a genetic disease of which they are healthy carriers.”Footnote ⁴² It also referred to the applicants’ “desire” to conceive a child unaffected by cystic fibrosis, and to use ART and PGD to this end, as a “choice” that was “a form of expression of their private and family life” and thus within the scope of Article 8 of the ECHR.Footnote ⁴³

This leaves open many questions regarding both discrimination and choice. On different facts, would the court see PGD not as an ART but as a “selective reproductive technology”; i.e., a technology that is not only about overcoming infertility, but also “used to prevent or allow the birth of certain kinds of children”?Footnote ⁴⁴ Evidence suggests that, in places, PGD is being used to select against sex and against disabilities, which compounds powerful prior practices of discrimination. The question that arises is: What would be a human rights-based approach to PGD?

PGD, and ART more broadly, also raise questions concerning choice and its companion, informed consent. How, for instance, would the European Court of Human Rights respond to ethnographic evidence that reproductive responsibility, rather than reproductive choice, can weigh heavily on would-be parents, leading some (who have given consent in the manner expected and promoted by international human rights law) to say they felt they had “no choice” but to use PGD?Footnote ⁴⁵ These would-be parents seem to be reporting obligations, not options. Evidence also suggests that prenatal diagnostic tests are often undertaken without full knowledge of their implications and, above all, in the hope of reassurance, which leaves would-be parents ill-equipped for the “choices” that follow. Reading between the lines, it is clear that the court in Costa and Pavan saw the applicants as responsible would-be parents and Italian law as deeply irresponsible. That analysis, however, offers no guidance as to what would count as a human rights-based approach to technologies that encourage would-be parents to keep trying for a child and also offer increasing options for identifying, and eliminating, unwanted traits in any future children.

There are two other points. The first concerns what counts as an ART case; the second concerns the court’s position on the status of the human embryo. Those who follow the court’s case law may ask why my list of ART cases does not include decisions such as Mennesson v. France,Footnote ⁴⁶ Foulon and Bouvet v. France,Footnote ⁴⁷ and Paradiso and Campanelli v. Italy,Footnote ⁴⁸ each of which involved a surrogate pregnancy facilitated by IVF. The question, in other words, is: Where does technology-enabled surrogacy fit in the court’s ART frame? My answer is that we need to wait and see, as the most recent decision, Paradiso and Campanelli, signals that several members of the court are deeply opposed to surrogacy and keen to limit the scope of Article 8 of the ECHR in this context.

The court’s focus in the surrogacy cases is narrow: it is looking only at the post-birth context, in particular at the steps that can legitimately be taken when a child has been born following an overseas surrogacy arrangement and the contracting state believes there has been a contravention of its domestic law.Footnote ⁴⁹ But this did not constrain the four concurring judges in Paradiso and Campanelli, who expressed regret that the court had not taken a clear stance against surrogacy. Surrogacy, according to these judges, treats people “not as ends in themselves, but as means to satisfy the desires of other persons.” And, whether it is remunerated or not, “[it] is incompatible with human dignity. It constitutes degrading treatment, not only for the child but also for the surrogate mother.” It is, the judges conclude, incompatible with the values underlying the Convention.Footnote ⁵⁰ This is a very strong stance. It does not, to be clear, represent the decision of the court. The decision does not rule on the compatibility of surrogacy with the Convention. It simply says that surrogacy raises “sensitive ethical questions” on which there is no consensus amongst contracting states.Footnote ⁵¹ Hence my claim that we need to wait and see.

As to the status of the human embryo, by and large the court has sought to stay away from this issue, emphasizing that it is the state, not the court, that is the key decision-maker. But several of the ART cases suggest that this might not hold going forward. More importantly, the court could find itself in a tangle as it tries to steer clear of the question of personhood and when the right to life, protected in Article 2 of the ECHR, begins (which it sees as a question for states),Footnote ⁵² while also protecting women’s rights under the Convention and developing Article 8’s qualified right to respect for private and family life. The developing idea of human dignity could play a part too, given that the court has said that “the potentiality of [the embryo/fetus] and its capacity to become a person … require protection in the name of human dignity, without making it a ‘person’ with the ‘right to life’ for the purposes of Article 2.”Footnote ⁵³

In Evans, the court stated that “the embryos created by the applicant and [her ex-fiancé] [did] not have a right to life within the meaning of Article 2 of the Convention,”Footnote ⁵⁴ a position described, in extreme terms, by a concurring judge in a later case as “the Evans anti-life principle.”Footnote ⁵⁵ Then, in Costa and Pavan, the court said that “the concept of ‘child’ cannot be put in the same category as that of ‘embryo’,”Footnote ⁵⁶ while also seeming to indicate that the status of the embryo falls within Article 8(2) of the ECHR, under which infringement of the right to respect for private and family life may be justified if necessary in a democratic society to protect the “rights and freedoms of others.”Footnote ⁵⁷

Most recently, in Parrillo, the majority made a range of similarly difficult-to-reconcile statements. On the one hand, and perhaps in line with Costa and Pavan, they framed the applicant’s embryos as “others”; on the other hand, they went on to say that they were not determining whether “others” extends to embryos.Footnote ⁵⁸ In another difficult-to-interpret position, the majority said that “the embryos contain the genetic material of [the applicant] and accordingly represent a constituent part of [her] genetic material and biological identity,” but also said that the applicant’s relationship with her embryos did “not concern a particularly important aspect of [her] existence and identity.”Footnote ⁵⁹ It is hard to know why the majority made these clumsy statements. It seems the judges wanted to emphasize the importance of genetic material, while also ensuring that because the case was about the use of human embryos, the final decision would rest with the state, not the court.

Parrillo also featured a claim by the applicant to a property right over her embryos under Article 1 of the EHCR’s Protocol 1. This was dismissed with little consideration. The majority concluded on the point by noting that because Article 1 of Protocol 1 has an “economic and pecuniary scope,” human embryos cannot be reduced to “‘possessions’ within the meaning of that provision.”Footnote ⁶⁰ The majority also noted that Article 2 was not at issue in the case, which meant that “the sensitive and controversial question of when human life begins”Footnote ⁶¹ did not have to be examined.

IV The Ethics of the Margin: How Has the Court Used the Doctrine of the Margin of Appreciation in Its ART Cases?

The court’s particular identity is part of the reason it holds back from definitive statements on the status of the embryo and fetus: it is a supranational human rights institution, not a domestic one. To reflect this, the court has crafted what is called the doctrine of the margin of appreciation. The doctrine allows the court to control the amount of discretion it is willing to give to the contracting state against which a complaint of a rights violation has been levelled. Where the court declares that the margin should be wide, it takes a step back – in essence, positioning itself as the “international judge,” less well-placed than national authorities to be the central decision-maker on the issue at stake.Footnote ⁶²

For some, the granting of a wide margin of appreciation is a sign that the court is too keen to constrain itself and too quick to shelter the Convention from the dynamic or evolutive style of interpretation that could, they say, secure its status as a living instrument. Others take a different view: for them, the legitimacy problem stems from cases in which the court limited the margin accorded to the respondent state. These cases, they complain, are evidence of an international court acting like a constitutional court and involving itself in issues that are none of its business, issues that ought to be determined at the national level.Footnote ⁶³

For my purposes, the obvious question is: What would bioethicists think of the doctrine and its use-in-practice by the court? I anticipate strong views, given the debate about relativism versus universalism in bioethics. Four of the ART cases, Evans, S.H. and Others, Knecht, and Parrillo, involved the granting of a wide margin of appreciation to the states concerned. It appears there were two principal reasons for this: first, what the court saw as the absence of consensus within the member states of the Council of Europe on the issues raised (“either as to the relative importance of the interest at stake or as to the best means of protecting it”Footnote ⁶⁴), and second, and relatedly, the presence of “sensitive moral or ethical issues.”Footnote ⁶⁵ In Evans, the court provided a third reason for greater deference: “There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights.”Footnote ⁶⁶

Dickson, by contrast, is a reminder that the court will restrict the margin accorded to a state “where a particularly important facet of an individual’s existence or identity is at stake.”Footnote ⁶⁷ In Dickson, in which a prisoner and his wife successfully challenged the process by which they were refused access to AI facilities, the court indicated that “the choice to become a genetic parent” is one such facet of an individual’s existence and identity.Footnote ⁶⁸

In S.H. and Others, however, this was not enough to assist the applicants; their challenge to Austria’s ban on using donor gametes for IVF was rejected by the court. In rejecting their challenge, the court mentioned, inter alia, their option to seek assisted reproduction abroad and have parenthood recognized at home.Footnote ⁶⁹ Relatedly, in Parrillo, having described the applicant’s cryopreserved embryos as a “constituent part of [her] identity,” a majority of the court later justified the granting of a wide margin of appreciation in part by drawing a distinction between the case before it and cases concerning “prospective parenthood.” The majority’s position was that although the right to donate embryos to scientific research was “important,” it was not “one of the core rights attracting the protection of Article 8 of the Convention as it does not concern a particularly important aspect of the applicant’s existence and identity.”Footnote ⁷⁰

When the court grants a wide margin of appreciation, it does not abdicate all power and responsibility to the respondent state. As the court explained in Costa and Pavan, “the solutions reached by the legislature are not beyond the scrutiny of the Court.”Footnote ⁷¹ In conducting this scrutiny, the court tends to focus on the lawmaking process and whether the impugned law strikes a “fair balance” between all competing private and public interests.Footnote ⁷²

But the judges do not always agree on what is required, and there have been strongly worded dissenting opinions that accuse the majority of using the margin of appreciation in a formal or mechanical way – i.e., granting deference but without the companion scrutiny that would weigh the state’s arguments, evidence, and expertise. In Evans, for instance, the joint dissenting opinion cautioned that the doctrine must not be used by the court “as a merely pragmatic substitute for a thought-out approach to the problem of proper scope of review.”Footnote ⁷³ Furthermore, none of the ART cases provides an explanation of the category of “sensitive moral and ethical issues” that will trigger a wide margin of appreciation. This leaves a range of questions. How does the court see the relationship between “moral” issues and “ethical” ones – are the terms synonymous? What is the significance of the adjective “sensitive” (or “delicate,” another qualifier used by the court)? And in what circumstances is there “acute sensitivity” or “profound moral views” (both of which were used by the court to justify a wide margin of appreciation in A, B and C v. Ireland, which involved a challenge to a restrictive abortion law)?Footnote ⁷⁴

Those interested in debates concerning universalism versus relativism will want to pay particular attention to the “European consensus,” another determining factor with respect to the degree of deference the court is willing to accord to contracting states. The “emerging European consensus” is more interesting still. It featured in S.H. and Others, in which the court made reference to “a clear trend in the legislation of the Contracting States towards allowing gamete donation for the purpose of in vitro fertilisation.”Footnote ⁷⁵ Ultimately, the trend was not used by the court to limit the wide margin of appreciation granted to the respondent state; it was not based on “settled and long-standing principles established in the law of the member States,” but rather reflected “a stage of development within a particularly dynamic field of law.”Footnote ⁷⁶ Nonetheless, the idea of the emerging consensus as a signaling tool – a shot across the (state) bow, a sign that the future could be different – is intriguing.

One final point about the emerging consensus and its counterpart, the European consensus: both concentrate the court’s attention on collectives. Notice that this also can be said of the court’s increasing reference to international instruments (which may not have been ratified by all contracting states) and to the evolution of societal thinking. So my question would be: How is this attention to collectives seen by those who criticize international human rights law and practice for being obsessed with the individual and the universal and with crude, decontextualized norms? Bioethicists feature heavily among those critics, so this would be one obvious opportunity for fresh content to stimulate fresh conversation.

V Law’s Capacities: Does the Court Have Faith in Law and Lawmaking on ART?

I turn finally to the question of whether the court has expressed a view on what counts as good law and good lawmaking in the field of ART. As I see it, any such views would contribute to my hoped-for conversation between bioethicists and international human rights lawyers.Footnote ⁷⁷ For instance, does the court share bioethics’ enthusiasm for processes or procedures of decision-making? Equally, does it share the view of some bioethicists that law is a way of capping off bioethical consensus, a way of “putting [bioethics’] words and ideas into practice”?Footnote ⁷⁸ Or does it, by contrast, prefer the negative view offered by others, that law generally gets in the way of both scientific progress and decent ethical argument?Footnote ⁷⁹ Relatedly, does the court itself see law expansively, or is there a closing down of law’s forms and capacities – a sense that in the end, law talk is about bans, moratoria, and limits of other sorts? Finally, to what extent does the court endorse the popular view that while law might be “marching alongside” medicine, science, and technology, it is “always in the rear and limping a little”?Footnote ⁸⁰

The ART cases do not provide much explicit detail on the court’s views about what counts as good law and good lawmaking in the field of ART. In part the reason for this is that the wide margin of appreciation granted in four of the cases extends, in principle, “both to the State’s decision whether or not to enact legislation governing the use of IVF treatment and, having intervened, to the detailed rules it lays down in order to achieve a balance between competing public and private interests.”Footnote ⁸¹ Still, there are some pointers. In Evans, the court encouraged contracting states to take steps to recognize that embryo-freezing produces “an essential difference between IVF and fertilisation through sexual intercourse”: “the possibility of allowing a lapse of time, which may be substantial, to intervene between the creation of the embryo and its implantation in the uterus.” In light of this, the court advised states to devise legal schemes that take the possibility of delay into account. Such schemes were, it said, “legitimate – and indeed desirable.”Footnote ⁸²

Second, in both Evans and S.H. and Others, the court made clear that even when important private life interests are engaged, it is open to legislators to adopt “rules of an absolute nature” – “[rules] which serve to promote legal certainty.”Footnote ⁸³ Put differently, legislators do not have to provide for “the weighing of competing interests in the circumstances of each individual case.”Footnote ⁸⁴ But this is not a free pass for legislators. For instance, in S.H. and Others, having noted that “concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation,” the court went on to insist that such concerns “are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as ovum donation.”Footnote ⁸⁵ The court then reminded contracting states that, even where a wide margin of appreciation is granted, the impugned domestic legal framework “must be shaped in a coherent manner which allows the different legitimate interests involved to be adequately taken into account.”Footnote ⁸⁶

But what is not clear from S.H. and Others, or from the ART cases as a whole, is what these different legitimate interests are. There are, at best, some pointers. Thus, in Evans, in determining whether the competing private and public interests had been weighed in a way that achieved fair balance, the majority emphasized two particular public interests: first, that the impugned provisions of the UK’s ART law upheld the principle of the primacy of consent, and second, that their “bright-line,” no-exceptions approach promoted legal clarity and certainty.Footnote ⁸⁷ On the private interests side, the majority focused on the right to be, or not to be, a parent, including in the genetic sense. In Parrillo, the majority noted that the drafting process of Italy’s ban on donating human embryos to scientific research had taken account of both “the State’s interest in protecting the embryo” and the private interest in exercising the right to individual self-determination “in the form of donating [one’s] embryos to research.”Footnote ⁸⁸ In S.H. and Others, which upheld Austria’s ban on donor gametes in IVF, the majority referred to the need to take account of “human dignity, the well-being of children thus conceived and the prevention of negative repercussions or potential misuse.”Footnote ⁸⁹ They also noted that there was “no prohibition under [the law] on going abroad to seek treatment of infertility”Footnote ⁹⁰ and having the resulting maternity and paternity recognized upon returning to Austria.

Frustratingly, the majority made no attempt to engage with the particular challenges of cross-border reproduction. The joint dissenting opinion did engage to a degree,Footnote ⁹¹ and some of the potential challenges were raised by one of the interveners. The latter saw what it described as “procreative tourism” as a “negative side-effect of the ban” – one that left “couples seeking infertility treatment abroad … exposed to the risk of low quality standards and of suffering from considerable financial and emotional stress.”Footnote ⁹² No one, however, mentioned the impact on donors in the state visited by the couple (including the risk of exploitation), or the potential costs to the health service in the home state. Equally, no one mentioned how would-be parents viewed treatment abroad, or whether they cared about recognition of legal parentage.Footnote ⁹³ And no one mentioned the difficulties that might be faced by a donor-conceived child seeking information about his or her genetic origin.

More positively, the ART cases as a whole are clear about the court’s enthusiasm for process. The court encourages states to be proactive: In upholding Austria’s ban on IVF with donor gametes in S.H. and Others, the court emphasized that “this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States.”Footnote ⁹⁴ But the court also observed that it was “understandable that the States find it necessary to act with particular caution in the field of artificial procreation”Footnote ⁹⁵ and applauded Austria for an approach that was “careful and cautious.”Footnote ⁹⁶ Similarly, in Evans, the United Kingdom’s ART law was described as “the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology, and the fruit of much reflection, consultation and debate.”Footnote ⁹⁷ Most recently, in Parrillo, the court highlighted the drafting process behind Italy’s ban on donating to scientific research human embryos that had been created for the purpose of medically assisted reproduction.Footnote ⁹⁸

This procedural lens is not without difficulties. In Parrillo, the court turned to the drafting process of the impugned law, having said it was about to examine whether a fair balance had been struck between the competing public and private interests at stake. In what followed, however, it focused exclusively on the formalities of the legislative process; there was, in other words, no engagement with the substantive arguments that had emerged during that process. Parrillo also raises questions about why, precisely, the court is relying on legislative process. Is it to determine the breadth of the margin of appreciation? Is it an element of a broader proportionality analysis, or is it simply a poor substitute for that analysis?Footnote ⁹⁹ The dissenting opinion of Judge Sajó in Parrillo takes a much more probing stance on both the legislative process and the impugned law itself, which suggests that the court’s judges do not have an agreed stance on my questions.

There is a sense from some of the ART cases that, unlike some bioethicists and much of the media, the court has faith in law’s capacity to handle the challenges of a rapidly evolving set of technologies like ART. We should, of course, expect a court to have faith in law, so what is interesting is the detail. In S.H. and Others, the court seemed to suggest that law could handle what Austria described as the risks of “harm to women” arising from egg donation (in particular, the risk of exploitation of donors). In this regard, it drew attention to the success of adoption law, though it accepted that “the splitting of motherhood between a genetic mother and the one carrying the child differs significantly from adoptive parent-child relations and has added a new aspect to this issue.”Footnote ¹⁰⁰

There have also been indications of what irks the court in the context of law, law-making, and application of law – of what it sees as falling short of democratic legitimacy. In Knecht v. Romania, although the court dismissed the complaint, it took the time to describe the Romanian regulator’s attitude as “obstructive and oscillatory.”Footnote ¹⁰¹ In Costa and Pavan, it was the incoherence of Italian law that irked the court. The applicants, a married couple carrying cystic fibrosis, had been barred from using IVF and PGD to screen their embryos so that only healthy ones could be implanted. Were they to conceive, however, the law permitted them to terminate the pregnancy on the grounds of fetal genetic condition. This, the court said, “caused a state of anguish for the applicants,”Footnote ¹⁰² and, as noted earlier, it went on to hold that Italy’s ban on IVF with PGD constituted a disproportionate interference with the applicants’ right to respect for private and family life.

VI Conclusion

In drawing to a close, two points stand out from my review of the court’s ART cases. First, the court invokes “the ethical” but largely leaves us guessing about what would constitute a human rights-based approach to the relationship between “the legal” and “the bioethical.” Second, and relatedly, the court leaves us guessing as to what would constitute a human rights-based approach to ART.

These gaps are problematic. Rights holders and duty bearers would benefit from clarity on what is a legal responsibility and what is a moral or an ethical one. But I suggest we see the gaps as productive, too. They allow us to think about the scope and content of rights and responsibilities in the ART field, without stalling on what is legal and what is ethical. More broadly, they demonstrate that international human rights case law is a starting point for discussion, not a full stop – that it is much more contested than the stereotypes of freedoms, entitlements, and duties suggest, much more provisional than the word “law” indicates, and much more interwoven with the domestic than the word “international” implies.Footnote ¹⁰³

I am not saying that there is no need to grasp what is, or could be, unique to human rights law, just that it would be useful to approach that question in new ways. With that in mind, and focusing on the contribution that international human rights law and practice could make to “good science,” this chapter has explored whether the ART case law of the European Court of Human Rights could generate fresh conversation between human rights lawyers and bioethicists. My conclusion is that it could.

The ART cases, as we have seen, do not set down what “ought to be.” They flag the centrality of the right to respect for private life, which covers the decision to become or not to become a parent, including in the genetic sense, and to use medically assisted procreation to that end. In a less-developed manner, the cases flag the relevance of other Convention rights (notably the rights to life and to respect for family life), the Convention’s guarantee of nondiscrimination,Footnote ¹⁰⁴ and the state’s interest in protecting “the rights and freedoms of others.” Considerable ebb and flow should be expected as the court and states continue to grapple with the balance between these rights and interests.

The court’s particular identity as a supranational human rights court is flagged by the cases, too. ART is presented as a field that raises “sensitive moral and ethical issues,” which is one of the triggers for a wide margin of appreciation. But a wide margin is not a free pass, nor is it guaranteed. It can be limited by a European consensus (and potentially by an emerging one as wellFootnote ¹⁰⁵). It can also be limited where a particularly important aspect of an individual’s existence or identity is at stake, which includes the right to respect for the decision to be or not to be a parent in the genetic sense. And even where a wide margin is seen as apt, the court has the power to scrutinize the democratic legitimacy of the impugned domestic measure. Each of these elements offers scope for study and, of course, for different views.

There are other potentially interesting elements that I have not addressed, such as: Did the gender of the judge count in any of the court’s ART cases?Footnote ¹⁰⁶ In S.H. and Others, four women judges authored the biting dissent,Footnote ¹⁰⁷ which suggests this question merits further study. Equally, how many of the court’s ART cases have featured third-party interventions, and is there a pattern in terms of who is intervening, in what types of cases, and with what sorts of claims?

Case selection is relevant too. For instance, would this chapter have read differently if I had framed the court’s ART cases as part of medical jurisprudence,Footnote ¹⁰⁸ reproductive rights jurisprudence,Footnote ¹⁰⁹ the jurisprudence of pregnancy,Footnote ¹¹⁰ or even a jurisprudence of kinship? And what would have emerged if I had looked at all of the court’s bioethical cases, which address issues including consent to medical examination and treatment, abortion, and assisted suicide? Equally, what would have emerged if either a particular concept (say, dignity or autonomyFootnote ¹¹¹) or a particular practice (say, cross-border care or informed consent) had been the focal point? And, changing tack again, what would we have seen if we had looked at all of the court’s technology cases? In particular, do we expect the question of ethics to feature in the court’s cases on other technologies, and if not, why not?

These, I suggest, are just some of the questions that arise. Moreover, if the aim is to delineate the relationship between the legal and the bioethical, and relatedly to capture what is distinctive about the authority of international human rights law, it will be important to locate the European Court of Human Rights within a broader frame. That frame should include not just other human rights actors, both domestic and international, but also other “palaces of hope”Footnote ¹¹² from the field of international law that play a part in the regulation of the life sciences and their technologies. And finally, because human rights practice is not exclusive to legal actors, we should also be exploring how national bioethics bodies (such as those mentioned earlier in this chapter) and professional scientific organizations view the bioethics–human rights relationship. These explorations are not standard fare. They could, however, engage bioethicists and international human rights lawyers in ways that are important and overdue. And over time, they could contribute to “good science” as well.

I Introduction

The development of unmanned aerial vehicles and increasingly autonomous weapons systems is radically reshaping the nature of modern warfare. The US military now depends on unmanned aerial systems, often referred to as drones, to provide intelligence and surveillance, while armed drones that can drop bombs on terrorists form a core part of the US arsenal in the war on terror. From the longstanding Phalanx system, deployed by the US Navy to automatically detect and neutralize missiles that breach a warship’s protective envelope, to the Counter Rocket, Artillery, and Mortar (C-RAM) system, the US Army’s comparable land-based defense, to the X-47B drone that can fly by itself during takeoff and landing, the United States has relied increasingly on weapons systems that are unmanned or have at least some autonomous capability. Other countries have developed such systems as well, from Israel’s Harpies, which autonomously ferret out enemy radar and then dive-bomb to destroy them, to South Korea’s robotic sentries protecting the border.Footnote ¹

In addition to altering the nature of warfare on the ground and in the air, the use of these new weapons systems has shaken up existing legal frameworks, both domestic and international, regulating the use of force abroad. Scholars and policy-makers have frequently grappled with the legal implications of deploying unmanned vehicles and increasingly autonomous weapons systems.Footnote ² For example, some have discussed the legality of US efforts to target individual terrorists for assassination, often through drone strikes.Footnote ³ Others have focused specifically on the question of whether such targeted killings can be justified anywhere outside the battlefields of Afghanistan and Iraq.Footnote ⁴ Still others debate whether drones are worse (or better) than conventional weapons at limiting civilian casualties.Footnote ⁵

Drones and automated weapons also raise broader questions about the asymmetry inherent in this sort of warfare, where one side has few if any casualties and the other is subject to multiple strikes without an effective way to respond. Such asymmetry, some argue, violates fundamental principles of humanity undergirding the entire body of International Humanitarian Law (IHL).Footnote ⁶ Finally, debates under US domestic law focus largely on whether the Constitution can be invoked extraterritorially to protect the rights of citizens (or even noncitizens) targeted in such strikes, given that so far individuals have only been targeted while outside the territorial borders of the United States.Footnote ⁷

Concurrent with this trend toward the use of weapons that are more autonomous, the United States and many other countries have also privatized a broad array of military and security functions, using private contractors to an arguably unprecedented degree.Footnote ⁸ For example, at the high point of the conflict in Iraq and Afghanistan, the US government employed more than 260,000 contractors, which at times exceeded the total number of US military personnel deployed in those two countries.Footnote ⁹ Such contractors have performed a myriad of roles, from constructing military bases and refugee camps to cutting soldiers’ hair, serving meals in mess halls, maintaining weapons on the battlefield, interrogating detainees, and guarding diplomats and military facilities.Footnote ¹⁰ Scholars and policy-makers have confronted the legal implications of this shift, and many have called for increasing oversight.Footnote ¹¹

Yet few, if any, studies have addressed the potentially incendiary mix of legal challenges arising from the combined use of drones and automated weapons, on the one hand, and private contractors, on the other. These trends have occurred side-by-side and even reinforce each other, because drones and automated weapons themselves often depend on contractors to function. Each twenty-four-hour combat air patrol of the US armed Predator and Reaper drones, for example, requires at least 350 people, many of whom are contractors. Contractors often invent and produce autonomous systems, and contractors may also be responsible for maintaining and operating these systems on the battlefield.

This chapter charts the rapid and intertwined growth of unmanned and increasingly autonomous weapons, on the one hand, and private military and security contractors, on the other. And it grapples with the particular challenges this combination of forces creates under both domestic and international law. The first part describes the increased use of drones and more fully autonomous weapons as well as the growing role of contractors in developing and operating these systems. The next part discusses the destabilizing impact that this trend is having on one of the foundations of the US constitutional framework itself: the allocation of power between the president and Congress in deciding whether or not to use force overseas. By reducing the political cost of war, the rise of these weapons systems and the growing use of contractors have together emboldened the president to deploy force unilaterally. At the same time, these twin trends have made possible legal arguments that the use of force is itself not significant enough to warrant congressional involvement. Such arguments are premised upon the idea that if there are few US military casualties there is less likely to be a war for constitutional purposes, or hostilities within the meaning of the War Powers Resolution. This reality is made possible in part because the use of autonomous weapons and contractors radically reduces the official casualty count.

The final part charts the similarly disruptive impact these trends have had on accountability and oversight under IHL. Together, the use of autonomous weapons and privatization have fragmented decision-making over the use of force, rendering accountability for violations of IHL principles much more difficult to achieve. Accordingly, from the perspective of both domestic and international law, the rise of autonomous weaponry combined with the increased use of contractors raises significant challenges to the rule of law during armed conflict and the protection of human rights in noncombat contexts.

II The Rise of Drones and Autonomous Weapons, and the Increasing Role of Military Contractors

III The United States Separation of Powers Framework

This distinctive mix of autonomous devices and contractors upends traditional frameworks, both domestic and international, for regulating the conduct of war. This part examines how the rise of unmanned systems affects the implementation of the US constitutional and statutory regime governing the decision to use force abroad. The next part turns to the impact on the international humanitarian law regime.

The US Constitution explicitly and purposefully divides responsibility over the use of force abroad between the Congress and the president. Under the Constitution, Congress declares warFootnote ⁴⁰ and holds the purse strings,Footnote ⁴¹ while the president is commander-in-chief of the armed forces.Footnote ⁴² Debates about the scope of the president’s power in relation to Congress date back centuriesFootnote ⁴³ and have grown more fraught in the last fifty years as formal declarations of war have largely become a historical relic.Footnote ⁴⁴ Some scholars and government lawyers have asserted broad theories of the president’s inherent power to use force unilaterally,Footnote ⁴⁵ while others have taken a more restrained approach, articulating a view that shared responsibility between the president and Congress should continue.Footnote ⁴⁶ After the Vietnam War, Congress tried to protect its position by enacting the War Powers Resolution, which requires the president to halt “hostilities” if Congress has not approved them within sixty days.Footnote ⁴⁷ Since then, while Congress has, at times, spoken loudly to authorize the use of force – as it did in 2001 to allow a muscular response to Al Qaeda and the TalibanFootnote ⁴⁸ and in 2003 to authorize the war in IraqFootnote ⁴⁹ – at other times, Congress’s voice has been muted at best. Years into the US operations against the Islamic State in Iraq and Syria (ISIS), no new authorization of force was forthcoming from Congress.

In the face of congressional silence, the rise of unmanned systems, combined with the growing use of contractors, has enabled the president to claim greater scope for unilateral action. New technology has not merely emboldened the president politically, but has actually made possible new legal arguments to justify an expanded conception of the president’s role in relation to Congress. In order to see the development of these new legal arguments, this part focuses on three examples where the president used force overseas without receiving specific congressional approval: Kosovo in 1999, Libya in 2011, and the campaign against ISIS in Iraq and Syria beginning in 2014. In each case, we can see that the growing role of unmanned systems and contractors has opened space for legal arguments expanding the power of the executive branch.

IV The International Humanitarian Law Criminal Accountability Framework

The combined impact of unmanned weaponry and military privatization not only destabilizes the constitutional and statutory separation of powers arrangements enshrined in US law, but also unsettles the framework of international humanitarian law, also known as the law of armed conflict. In particular, increasingly autonomous weaponry and growing privatization tend to spread responsibility for decision-making across a larger number of actors who do not fit neatly within either a military command structure or an ordered bureaucracy. Thus, as multiple actors work together to gather intelligence, make targeting decisions, and deploy weapons, the authority and responsibility for decisions involving violence are diffused and fragmented. Accordingly, if it turns out that the use of a weapon violates IHL, it is far more difficult even to determine who is responsible. In this new world of fragmented authority, our existing legal and bureaucratic processes are inadequate to provide sufficient mechanisms of accountability. As a result, we face potential difficulties in trying to ensure compliance with IHL norms.

Scholars and policy-makers have debated extensively whether the use of unmanned and autonomous weapons threatens fundamental IHL principles. For example, some have argued that the asymmetric harm such weapons can inflict flouts core principles of humanity that undergird IHL, or that the promise of precision that such weapons offer may be overstated.Footnote ¹¹³ In contrast, others have contended that such weapons are potentially more precise than human beings who pull triggers and might therefore provide an opportunity for more humane warfare, stripped of the irrationality, hot-blooded decision-making, and emotional toll of the battlefield.Footnote ¹¹⁴ Such weapons, according to this argument, might paradoxically lead to better effectuation of the IHL principles that lie at the heart of that body of law, such as distinction and proportionality.Footnote ¹¹⁵

Still others have emphasized that, regardless of whether or not unmanned and autonomous weapons might better implement substantive IHL principles, autonomy itself can pose serious problems for accountability.Footnote ¹¹⁶ Perhaps most significantly, these systems threaten the framework of individual criminal responsibility that undergirds all of IHL. From the Nuremberg trials of Nazi war criminals to proceedings before the International Criminal Court, a fundamental aspect of international humanitarian law is that perpetrators will be held individually responsible for egregious violations of the law of war that constitute war crimes. While such prosecutions are rare, they serve as core sanctions that ensure compliance with this body of law.

But whether it is individual criminal punishment or some other form of accountability, unmanned autonomous weapons pose problems for this framework. As a number of scholars have pointed out, in the case of truly autonomous systems, who will be responsible for the decision to strike?Footnote ¹¹⁷ In 2012, partly due to accountability concerns, the United States issued a temporary ban on fully autonomous systems.Footnote ¹¹⁸ Subsequently, policy-makers and scholars gathered at the United Nations in 2015 to discuss these issues.Footnote ¹¹⁹

Meanwhile, a rich debate has also emerged over the impact of military and security privatization on international humanitarian law and policy.Footnote ¹²⁰ For example, some have called for an outright ban on the practice.Footnote ¹²¹ Others, including myself, have advocated for new means of regulation, such as the use of contracts and public-private accreditation regimes, that attempt to bring the public values embedded in IHL into this newly privatized realm.Footnote ¹²² Without such reforms, existing systems of accountability and oversight will be weak and ineffectual.

Yet few, if any, scholars have addressed the combined force of increasingly autonomous weaponry and privatization. Paired together, these trends significantly enhance the accountability and oversight problems each poses separately. Thus, my goal in this section is to break new ground by scrutinizing how these two phenomena intersect and to assess how that intersection could impact the potential for imposing accountability under IHL when serious violations occur.

Although much could be said about multiple forms of accountability, my focus here will be on individual criminal responsibility. In particular, my contention is that both privatization and the use of increasingly autonomous weapons fragment decision-making and bring it outside the ordinary bureaucratic chain of command. This fragmentation makes accountability harder to impose, because it becomes very difficult to hold individuals responsible for serious harms that occur. Thus, the use of these weapons by a military that has also outsourced multiple functions to private contractors presents distinct problems that add up to more than the combined impact of each of the two trends. In other words, the whole of the problem very likely is worse than the sum of its parts.

V Conclusion

The purpose of this chapter has been to highlight the profoundly destabilizing impact of unmanned and autonomous weapons systems and privatization on both domestic and international law regulating the use of force abroad. These trends have emerged concurrently, and together they disrupt existing legal frameworks more than each would do separately. On the domestic front, unmanned and autonomous weaponry and privatization potentially alter the balance of power between the president and Congress by buttressing legal arguments that the use of force can be limited in ways that do not require congressional approval. Meanwhile, these trends also work together to put pressure on international humanitarian law, because they fragment and diffuse decision-making, thereby complicating efforts to impose individual accountability. Accordingly, it will be a core challenge for law and governance in the twenty-first century to evolve new legal regimes and new mechanisms of oversight and accountability to respond to the radically changing face of armed conflict.