Chapter 1 Methodology of Law-Making: Customary International Law and New Military Technologies

Abstract

This chapter addresses the methodology to establish customary international law in the field of International Humanitarian Law (IHL). It looks at whether there are special standards for the determination of IHL which might deviate from the classic approach towards customary IHL, in as far as one might need to lower the requirements of frequency and consistency with regard to State practice and what dominant role opinio juris might play. The chapter considers the correct approach to finding customary law in IHL. It highlights certain rules and principles which might be directly relevant for the application to new military technologies in armed conflict. The chapter discusses the rules for establishing customary international law which regulates the use of new technologies such as cyber attacks, remote-controlled weapons, or lethal autonomous robots. Keywords:armed conflict; customary international law; international humanitarian law (IHL); new military technologies; opinio juris