Finnish Yearbook of International Law, Volume 25, 2015

Tuomas Tiittala

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509927159
• eBook ISBN: 9781509927166
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The Finnish Yearbook of International Law aspires to honour and strengthen the Finnish tradition in international legal scholarship. Open to contributions from all over the world and from all persuasions, the Finnish Yearbook stands out as a forum for theoretically informed, high-quality publications on all aspects of public international law, including the international relations law of the European Union. The Finnish Yearbook publishes in-depth articles and shorter notes, commentaries on current developments, book reviews and relevant overviews of Finland's state practice. While firmly grounded in traditional legal scholarship, it is open for new approaches to international law and for work of an interdisciplinary nature. The Finnish Yearbook is published for the Finnish Society of International Law by Hart Publishing. Earlier volumes may be obtained from Martinus Nijhoff, an imprint of Brill Publishers.

Special Section One:

Law, War and New Technology

Old Rules and New Technology: Drones and the Demilitarisation and Neutralisation of the Åland Islands

Sia Spiliopoulou Åkermark¹

Abstract: The juxtaposition of the old regime of the demilitarisation and neutralisation of the Åland Islands, as a territorially bound regime, to modern drone technology, which transgresses strict territorial borders and territorially bound jurisdictions, offers us the possibility to explore some of the present-day problems with the law concerning the exercise of territorial sovereignty. Speed, mobility and multilevel governance reconfigure the guarantees offered by the rule of law, both national and international. Developments in the field of airspace regulation, including the multiple usages and users of drones for military or ‘hybrid’ purposes, pose new challenges and questions regarding the demilitarised space of the Åland Islands. Such questions need to be articulated and explored. Do drones really change anything for the demilitarisation and neutralisation regime of Åland? Is the demilitarisation and neutralisation regime of the Åland Islands, for which observance Finland holds the core responsibility, legally prepared to deal with such questions? This is the main question in the present article. The main argument in this article is that while the current trends can result in a reinvigoration of the regime, they also can result in its erosion.

Keywords: Demilitarisation, Neutralisation, Åland Islands, Drones, Unmanned aircraft, Territorial surveillance, Situational Awareness

1.New and Old Questions Concerning Drones

At the inauguration of the new Hybrid Centre of Excellence in Finland, Jens Stoltenberg, Secretary General of the North Atlantic Treaty Organization (NATO), announced that NATO is purchasing new drones, which shall be used to improve the capacities of situational awareness, intelligence, surveillance and reconnaissance, all in the effort to tackle ‘hybrid threats’.² While the term ‘hybrid threats’ is not defined in the constituting agreement of this new institution, could such drones be used for this purpose in the demilitarised zone of the Åland Islands?³

International lawyers, as well as national legislators, have only recently started grappling with the implications of the technical possibilities offered by unmanned aircraft, often called drones (the two terms shall be used interchangeably in the present text). Public consciousness and international law have been dominated, with good reason, by the controversial usages of drones for targeted killings in Pakistan, Afghanistan and other conflict areas.⁴ This is not surprising, considering that drones used for war purposes today form a huge area of innovation and public spending in many countries.

Meanwhile, many other basic issues remain unaddressed, such as the registration and licencing of civil and military unmanned aircraft, dual usages of such aircraft, and the application of general air law provisions on such vehicles. After reviewing some of the basic issues concerning drones today, we shall examine the challenges posed by drones on the old regime of the demilitarisation and neutralisation of the Åland Islands, which has its origins in the mid-nineteenth century, ie in an era prior to airplanes, helicopters, satellites and drones. The juxtaposition of the old regime of the demilitarisation and neutralisation of the Åland Islands as a territorially bound regime to drone technology offers us the possibility to explore some of the present-day challenges with the law applicable in the demilitarised zone. It is, of course, not the first time that new technology shapes new contingencies for the demilitarisation. The use of submarines, telegraphy and airplanes, for instance, have all influenced the development of international law and the interpretation of specific aspects thereof, such as the demilitarisation and neutralisation of the Åland Islands. However, in the present article, emphasis is placed only on airspace and aviation, its regulation and the applicability of the relevant rules on drones.

Drones enter airspace like airplanes and may violate the demilitarisation and neutralisation regime, if they are military-like in character or operate with military aims. Thus, at one level, there is no difference at all from the problems affecting aircraft. However, the use of drones poses additional new concrete issues that must be tackled in the future on their own merits. Such problems are likely to continue surfacing incrementally, given that the present inventory is non-exhaustive and to some extent include speculative elements, for the purpose of detecting possible trajectories in the future uses of drones. Nowadays, we can identify the following issues:

1)If the air force (Finnish or other) detects a drone in its own airspace and suspects that it has no right to be there, there may be a greater predisposition to shoot it down, since communication with whoever controls the drone, from whatever spot around the globe, may be more time-consuming and complicated and also since there would be no human casualties of pilots involved. In addition, it has been reported that loss of data links between the ground control station and drones is a rather common phenomenon.⁵ These factors may also increase the risk of military confrontation in the demilitarised zone. In addition, such a relaxed attitude to the use of force in the air may result in an escalation in the use of force and increased diplomatic tensions, especially when the shooting down of drones is accompanied by the shooting down of manned aircraft, leading to a general escalation in aerial use of force. Such developments were observed, for instance, when the Turkish Air Force first shot down an unmanned drone at the Syrian border in October 2015 and thereafter a manned warplane, leading to a deterioration of Turkish-Russian relations.⁶

2)There has been considerable apprehension in the Baltic Sea region about the risks involved in the switching off of transponders in airplanes.⁷ If airplanes are difficult to locate and identify on radar screens when transponders are switched off, one may have a reason to believe that this is even more the case when it comes to drones, if their users want them to remain unidentified. Moreover, such a development may deepen possible trust deficits in the international legal system and the idea of the rule of law in international affairs.

3)Today, drones are used just as much for civilian purposes as for military, as we shall discuss further below. The extensive dual usage of drone technology is coupled with a combination of public and private owners and operators of such technology, in ways that make it increasingly difficult to assess what is permitted and what is prohibited in international law, in general, and under the demilitarisation and neutralisation regime for the Åland Islands, in particular.

4)At a broader level, there is an ongoing global debate about the weaponisation of autonomous technologies at the expense of their development and usage for much needed civilian purposes and without any real discussion about the implications this has on the interpretative reasoning that is needed when implementing legal rules.⁸ For instance, a possible wider usage of drone technology for target identification and possible shooting down in the air, as in border control or missile defence systems, may limit the freedom a state has in deciding whether to use force or not in the first place and in a concrete and contingent situation. After all, the right to self-defence is precisely a right, which involves a set of underlying decisions to be made and which does not automatically prescribe the best methods for its exercise.⁹

5)Other problems in the practical and legal use of drones affect, inter alia, the protection of personal integrity, congestion, and the risk of collisions in the air, as well as surveillance in the territory of third countries, ie extraterritorial jurisdiction.¹⁰ The effects of such weaponisation on North-South relations are a wider theme but remain beyond the scope of the present study. Today, many kinds of activities may be technologically possible, but our political and legal systems have not yet managed to find ways to address the broad range of possibilities and to manage their risks and downsides, as reflected in ongoing debates about the regulation of cyberspace. The use of drones may be highly beneficial, for instance, for the documentation and surveillance of large environmental threats in the open sea, rescue operations, or transportation of necessities for persons entrapped in remote areas. Other drone activities can be, however, far more problematic. This has prompted the United Nations Institute for Disarmament Research (UNIDIR) to focus on the need for identification at the initial stage of the functions, where autonomous technology is acceptable globally, to be followed by rules for such usages.¹¹

It can be expected that the current development towards greater autonomy of aircraft and other vehicles shall be pursued in the military as well as in the civilian realm. The introduction of systems with greater autonomy is a fact, and defensive weapon systems with autonomous capabilities are already being deployed. According to one estimate, the international market for unmanned aircraft will be worth up to 80 billion US dollars ...

Table of contents

• Cover
• Title Page
• Contents
• General Section
• Special Section One: Law, War and New Technology
• Special Section Two: The Ideal of the International – Principles, Backlash and Resistance
• Book Reviews
• New Finnish Doctoral Dissertations in International Law
• Copyright Page