Assessing Claims to Revise the Laws of War

For better or worse, participants in a civilization of science and technology are locked in a relentless process of research and a frenzied, competitive drive to apply the results wherever they promise enhanced productivity and profit. Each innovation stimulates further innovations and thejuggernaut of development roars on. As for the law that would regulate it all, thanks to its characteristic deliberative and measured methods, it often lags behind the innovations, leaving intervals of legal gap in which authority becomes uncertain. Weapons and their delivery systems are no exception to this dynamic. They, too, evolve inexorably, as do the identity, character, and modus operandi of manifest and latent adversaries. The first imperative of every territorial community-hence the first imperative of the international law that these communities have created-is provision for national defense. That part of the legal regime that establishes the licit means and modes for the maintenance by each community of its national defense is necessarily a response to the common needs and common interests of politically relevant actors in the system. Their felt necessities determine the content of the law and, in its crafting, take account of a wide range of factors, such as the current and projected technology and quanta of weapons; their modes of application; geography and geostrategic implications in specific contexts; and, of course, the characteristics, objectives, and capacities of manifest and latent adversaries. When some of these factors change to the point that communities can no longer assure their defense within the ambit of inherited law, those charged with national defense inevitably demand changes in the law