The Rule of No Law

Abstract

This chapter explores the legality of latter-day weapons—specifically, nuclear arms and lethal drones—to consider the potential for voids in the coverage of international law. When technological or other developments enable previously inconceivable kinds of warfare, states face open legal questions. Recent debates over the legality of U.S. drones illustrate this, as do earlier debates about the legality of nuclear arms. The weapons arise in a kind of legal vacuum, empty of specific regulation. Drawing on these examples, the chapter considers the power of the international rule of law in situations where there may be no law. With respect to nuclear weapons, the International Court of Justice decided that despite there being no directly applicable laws, use is nonetheless governed by international law. Rules designed for other weapons are relevant, as is a general principle that in the end, international law must defend states' rights to protect their national security as they see fit. These two sets of resources—general principles and analogies to other laws—are also important in legal debates over drones today: the lawfulness of drones as instruments of war is inferred from the legality of what are said to be analogous weapons from earlier times, and the needs of the state are internalized in legality debates through the mechanism of self-defense.