This article investigates the profound impact of artificial intelligence (AI) and big data on political and military deliberations concerning the decision to wage war. By conceptualising AI as part of a broader, interconnected technology ecosystem – encompassing data, connectivity, energy, compute capacity and workforce – the article introduces the notion of “architectures of AI” to describe the underlying infrastructure shaping contemporary security and sovereignty. It demonstrates how these architectures concentrate power within a select number of technology companies, which increasingly function as national security actors capable of influencing state decisions on the resort to force. The article identifies three critical factors that collectively alter the calculus of war: (i) the concentration of power across the architectures of AI, (ii) the diffusion of national security decision making, and (iii) the role of AI in shaping public opinion. It argues that, as technology companies amass unprecedented control over digital infrastructure and information flows, most nation states – particularly smaller or less technologically advanced ones – experience diminished autonomy in decisions to use force. The article specifically examines how technology companies can coerce, influence or incentivise the resort-to-force decision making of smaller states, thereby challenging traditional notions of state sovereignty and international security.

The use of artificial intelligence-driven decision-support systems (AI DSS) to assist human calculations on the resort to military force has raised concerns that automation bias may displace human judgments. Such fears are compounded by the complexities and pathologies of organisational decision making. Discussions of AI often revolve around better training AI models with more copious amounts of technical data, but this article poses research questions that shift the focus to a human-centric and institutional approach. How can governments better train human decision makers and restructure institutional settings within which humans operate to minimise the risks of automation bias and deskilling? This article begins by exploring how governments have invested in AI literacy education and capacity-building. Second, it demonstrates how the need to question groupthink and challenge assumptions in decision making becomes even more relevant as the use of AI DSS become more prevalent. Third, human decision makers operate within institutional structures with internal audit trails and organisational cultures, inter-agency networks and intelligence-sharing partnerships that may mitigate the risks of human deskilling. Bolstering these three inter-locking, mutually reinforcing elements of education, challenge functions and institutions offers some avenues for managing automation bias in decisions on the resort to force.

As artificial intelligence (AI) plays an increasing role in operations on battlefields, we should consider how it might also be used in the strategic decisions that happen before a military operation even occurs. One such critical decision that nations must make is whether to use armed force. There is often only a small group of political and military leaders involved in this decision-making process. Top military commanders typically play an important role in these deliberations around whether to use force. These commanders are relied upon for their expertise. They provide information and guidance about the military options available and the potential outcomes of those actions. This article asks two questions: (1) how do military commanders make these judgements? and (2) how might AI be used to assist them in their critical decision-making processes? To address the first, I draw on existing literature from psychology, philosophy, and military organizations themselves. To address the second, I explore how AI might augment the judgment and reasoning of commanders deliberating over the use of force. While there is already a robust body of work exploring the risks of using AI-driven decision-support systems, this article focuses on the opportunities, while keeping those risks firmly in view.

Artificial intelligence (AI) is increasingly being incorporated into military decision making in the form of decision-support systems (DSS). Such systems may offer data-informed suggestions to those responsible for making decisions regarding the resort to force. While DSS are not new in military contexts, we argue that AI-enabled DSS are sources of additional complexity in an already complex resort-to-force decision-making process that – by its very nature – presents the dual potential for both strategic stability and harm. We present three categories of complexity relevant to AI – interactive and nonlinear complexity, software complexity, and dynamic complexity – and examine how such categories introduce or exacerbate risks in resort-to-force decision-making. We then provide policy recommendations that aim to mitigate some of these risks in practice.

In a resort-to-force setting, what standard of care must a state follow when using AI to avoid international responsibility for a wrongful act? This article develops three scenarios based around a state-owned autonomous system that erroneously resorts to force (the Flawed AI System, the Poisoned AI System, and the Competitive AI System). It reveals that although we know what the substantive jus ad bellum and international humanitarian law rules are, international law says very little about the standards of care to which a state must adhere to meet its substantive obligations under those bodies of law. The article argues that the baseline standard of care under the jus ad bellum today requires a state to act in good faith and in an objectively reasonable way, and it describes measures states should consider taking to meet that standard when deploying AI or autonomy in their resort-to-force systems. It concludes by explaining how clarifying this standard of care will benefit states by reducing the chance of unintended conflicts.

In Western democracies the decision to go to war is made in ways that ensure decision-makers can be held accountable. In particular, bureaucracies rely on the production of a range of documents such as records of meetings to ensure accountability. Inserting AI into the decision-making process means finding ways to make sure that AI can also be held accountable for decisions to resort to force. But problems of accountability arise in this context because AI does not produce the type of documents associated with bureaucratic accountability: it is this gap in documentary capacity which is at the core of the troubling search for accountable AI in the context of the decision to go to war. This paper argues that the search for accountable AI is essentially an attempt to solve problems of epistemic uncertainty via documentation. The paper argues that accountability can be achieved in other ways. It adopts the example of new forms of evidence in the International Criminal Tribunal for Yugoslavia (ICTY) to show that epistemic uncertainty can be resolved and accountability apportioned without absolute epistemic certainty and without documentation in the sense commonly associated with accountability in a bureaucratic context.

In this article, we maintain that the anticipated integration of artificial intelligence (AI)-enabled systems into state-level decision making over whether and when to wage war will be accompanied by a hitherto neglected risk. Namely, the incorporation of such systems will engender subtle but significant changes to the state’s deliberative and organisational structures, its culture, and its capacities – and in ways that could undermine its adherence to international norms of restraint. In offering this provocation, we argue that the gradual proliferation and embeddedness of AI-enabled decision-support systems within the state – what we call the ‘phenomenon of “Borgs in the org”’ – will lead to four significant changes that, together, threaten to diminish the state’s crucial capacity for ‘institutional learning’. Specifically, the state’s reliance on AI-enabled decision-support systems in deliberations over war initiation will invite: (i) disrupted deliberative structures and chains of command; (ii) the occlusion of crucial steps in decision-making processes; (iii) institutionalised deference to computer-generated outputs; and (iv) future plans and trajectories that are overdetermined by past policies and actions. The resulting ‘institutional atrophy’ could, in turn, weaken the state’s responsiveness to external social cues and censure, thereby making the state less likely to engage with, internalise, and adhere to evolving international norms of restraint. As a collateral effect, this weakening could contribute to the decay of these norms themselves if such institutional atrophy were to become widespread within the society of states.

L’année 2024 est marquée à la fois par la passivité de la pratique conventionnelle du Canada et l’hyperactivité de sa pratique contentieuse. L’apurement de l’arriéré des réclamations fondées sur le régime de règlement des différends entre investisseurs et États (RDIE) de l’Accord de libre-échange nord-américain entre le gouvernement du Canada, le gouvernement des États-Unis et le gouvernement du Mexique (ALÉNA) se poursuit.1 De nombreuses sentences sont aussi rendues dans des affaires portées par des investisseurs canadiens à l’étranger, des sociétés minières pour l’essentiel. Ces affaires permettent de tester les innovations juridiques visant à renforcer le droit de légiférer de l’État dans les traités plus récents du Canada. Une première sentence très attendue sur la question hautement controversée de la portée temporelle du régime transitoire de RDIE de l’Accord entre le Canada, les États-Unis et le Mexique (ACÉUM)2 est rendue dans l’affaire TC Energy et TransCanada c États-Unis (II)3 et se solde en faveur de l’État. La controverse sur la portée temporelle de ce régime transitoire fait l’objet d’une analyse détaillée dans la chronique cette année. Un tour d’horizon des principaux autres faits marquants de 2024 est d’abord effectué en ce qui concerne la pratique conventionnelle et la pratique contentieuse du Canada.

It is a privilege to write a preface to this Symposium on Canada before International Courts and Tribunals, which includes many stimulating and insightful contributions. In this preface, I go back to the beginning and focus on Canada’s first cases at the International Court of Justice (ICJ) and before international arbitral tribunals.