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NATO Legal Gazette Issue 41 Issue 41 October 2020 Legal Gazette Legal Aspects of Innovation 1 PAGE 2 NATO LEGAL GAZETTE, Issue 41 Contents Introduction, by Sherrod Lewis Bumgardner……………………………...….……......... 4 Preface, by Geoffrey S. Corn and Gary Corn..……………………………………... 6 Innovation for peaceful purposes only: Where there is the will, there is ITER, by Antoaneta Boeva …………………………………………………………………………… 14 Partnership, Not Pivot: NATO’s Legal Answer to the China Question, by Lauren Brown ………………………………………………………………………………………... 27 Responsibility, Liability and Lethal Autonomous Weapon Systems, by Theodora Vassilika Ogden ………………………………………………………………. 46 Autonomous Weapon Systems: A Pragmatic Approach to an Emerging Capability, by Major Gregg F. Curley..………………………………………………… 61 U.S. Export Controls: The Future of Disruptive Technologies, by Christopher Timura, Judith Alison Lee, R.L. Pratt and Scott Toussaint …………………………... 96 The Relevance and Benefits of Integrated Compliance Strategy (ICS) for NATO Defence Forces, by Martijn Antzoulatos-Borgstein …………………..…...…. 125 Legal Operations: The Use of Law as an Instrument of Power in the Context of Hybrid Threats and Strategic Competition, by Rodrigo Vázquez Benítez……….. 138 The Road to Hell is Paved with Bad Contractors: Vendor Vetting is a Better Path, by Brett Sander ……………………………………………………………………… 145 Publisher: Monte DeBoer, ACT Legal Advisor Editor-in-Chief: Sherrod Lewis Bumgardner, ACT SEE Legal Advisor Editors: Mette Prassé Hartov, HQ SACT Deputy Legal Advisor Galateia Gialitaki, ACT SEE Legal Assistant Copy Editors: Robert ‘Butch’Bracknell, HQ SACT Staff Legal Advisor Col Xavier Labarriere, HQ SACT Staff Legal Advisor Miles S. Porter, HQ SACT Legal Extern Malia Kenza Chenaoui, ACT SEE Legal Extern Copy Proofreader: Caitlin Fendon, HQ SACT Legal Intern Lola Chanfreau, ACT SEE Legal Extern 2 NATO LEGAL GAZETTE, Issue 41 PAGE 3 Disclaimer: The NATO Legal Gazette is produced and published by Headquarters Supreme Allied Commander Transformation (HQ SACT). The NATO Legal Gazette is not a formal NATO document and does not represent the official opinions or positions of NATO or individual nations unless specifically stated. The NATO Legal Gazette is an information and knowledge management initiative, focused on improving the understanding of complex issues and facilitating information sharing. HQ SACT does not endorse or guarantee the accuracy of its content. All authors are responsible for their own content. Copyright to articles published in the NATO Legal Gazette may be retained by the authors or their employer with attribution to the issue of the NATO Legal Gazette the article first appeared in. Retention of the copyright an article by the author or their employer will be identified with the copyright symbol © followed by the name of the copyright holder. Any further publication, distribution, or use of all or parts from these articles are required to remain compliant with the rights of the copyright holder. Absent specific permission, the NATO Legal Gazette cannot be sold or reproduced for commercial purposes. Source : https://innovationhub-act.org/ 3 PAGE 4 NATO LEGAL GAZETTE, Issue 41 Source : www.act.nato.int Introduction Dear Fellow Legal Professionals and Persons Interested in NATO, This issue of the NATO Legal Gazette is the brain child of Robert (Butch) Bracknell who advocated using the Gazette to share and socialise innovative legal transformational ideas from legal advisors in academia, international organizations, commercial practice, and industry. Issue 41 begins with a Preface by Geoffrey and Gary Corn, retired U.S. Army Judge Advocates and now noted academics. They consider technological changes from the 1980s to the present and incisively invite our attention to: “1) the development of the cyber domain and the adoption of cyber operations as a means and method of military and other security related operations; 2) the movement towards the development of lethal autonomous weapon systems (LAWS); and 3) the reshaping of the information environment and the attendant impact on perceptions of strategic legitimacy,” knowing that “NATOs best minds must stake out the cutting edge territory of these innovations.” Antoaneta Boeva is a lawyer for the ITER Organization in Saint-Paul-lès- Durance, France. Her article, Innovation for peaceful purposes only: Where there is the will, there is ITER describes the remarkable engineering and legal efforts to create a star on Earth in the International Thermonuclear Experimental Reactor. Lauren Brown, an Associate in the International Trade Group of Squire Patton Boggs, a full-service global law firm, writes about the power of innovation in NATO’s relationships in Partnership, Not Pivot, NATO’s Legal Answer to China. 4 NATO LEGAL GAZETTE, Issue 41 PAGE 5 Theodora Vassilika Ogden, a Fellow at the Human Security Centre in London who is currently studying at Leiden University, and Gregg Curley, a Judge Advocate in the U.S. Marine Corps, accept the challenge to stake out their perspectives on LAWS and autonomous weapons. Ms. Ogden’s article considers Responsibility, Liability and Lethal Autonomous Weapon Systems and Major Curley provides his views in Autonomous Weapons: A Pragmatic Approach. Christopher Timura, Judith Alison Lee, R.L. Pratt and Scott Toussaint, who are attorneys in the Washington D.C. office of Gibson, Dunn & Crutcher LLP and members of the firm’s International Trade Practice Group provide us an important article on the interplay between industry and national security is U.S. Export Controls: The Future of Disruptive Technologies. Martijn Antzoulatos- Borgstein, the Trade Compliance Manager for Rockwell Automation for Europe, Middle East and Africa, follows by proposing collective actions by NATO and partner nations to better manage the industry-security interplay in The Relevance and Benefits of Integrated Compliance Strategy (ICS) for NATO Defence Forces. Rodrigo Vázquez Benítez is an Assistant Legal Advisor in the Allied Command Operations Office of Legal Affairs at the NATO Supreme Headquarters Allied Powers Europe. He addresses the reshaping of the information environment by providing a description of the exploitation of the legal domain in a context of strategic competition in Legal Operations: The Use of Law as an Instrument of Power in the Context of Hybrid Threats and Strategic Competition. Brett Sander, a US legal practitioner and principal at Vendor Clearance LLC, provides our final thoughtful article, The Road to Hell is Paved with Bad Contractors: Vendor Vetting is a Better Path. The contributions of Butch and each of the accomplished authors of the nine articles in Issue 41 is deeply appreciated and you, the readers, are thanked for your interest in the NATO Legal Gazette. Best wishes to you all from Belgium. Lewis Sherrod Lewis Bumgardner Legal Advisor ACT Staff Element Europe 5 PAGE 6 NATO LEGAL GAZETTE, Issue 41 Source: www.nato.int Preface by Geoffrey S. Corn1 and Gary Corn2 When we enlisted in the 1980s to pursue our commissions as new lieutenants in the U.S. Army, the world was a very different place, but the forces of momentous change were already in motion. When I (Geoffrey) graduated Officer Candidate School (OCS) in 1984, ours was a Cold War Army, singularly focused on the doctrine of AirLand Battle designed to defeat the Soviet threat in conventional, combined arms mechanized warfare in Europe. By the time I pinned gold bars on Gary’s shoulders at his OCS graduation five years later, the seeds of evolutionary, if not revolutionary change had already germinated. The Soviet Bloc had begun to unravel that same year, leading to its eventual collapse just two years hence. In the meantime, the U.S. put on stark display the power of new technologies such as stealth, GPS, and “smart bombs” in its decisive and overwhelming defeat of Iraq’s armed forces in the First Gulf War. Through the three decades of our collective military experience we have witnessed profound changes in the threats our Nation, allies and partners confront, as well the fundamental character and arguably the nature of warfare itself. In many respects, 1 Geoffrey S. Corn is The Presidential Research Professor of Law at South Texas College of Law Houston in Houston Texas. Prior to joining the South Texas College of Law Houston faculty in 2005, Professor Corn served in the U.S. Army for 21 years as an officer, and a final year as a civilian legal advisor, 2 Gary Corn is the Director of the Technology, Law & Security Program and Adjunct Professor of Cyber and National Security Law at American University Washington College of Law; a Senior Fellow in National Security and Cybersecurity at the R Street Institute; a member of the Editorial Board of the Georgetown Journal of National Security Law and Policy, and the Founder and Principal of Jus Novus Consulting, LLC. 6 NATO LEGAL GAZETTE, Issue 41 PAGE 7 technology has fueled these changes, and has developed at a pace unlikely to abate in the near future. Meanwhile, states struggle to adapt their strategies and doctrine to these changes and emerging threats. While the armed forces of NATO nations must remain prepared for the “high-intensity” combat contingency, confronting and defeating non-state enemies and other unconventional “gray zone” threats is increasingly central to the missions these forces must be prepared to execute. Technology has long been central to the evolution of the way professional armed forces conceptualize and prepare for conflict. Technological advances have always impacted war, but the nature and pace
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