Antonio Tejeda Encinas. President of the Euro-American Committee on Digital Law
The European Union’s Artificial Intelligence (AI) Act, which will become fully applicable in 2025, represents a crucial advance in the regulation of emerging technologies, with a focus on protecting fundamental rights, particularly privacy and security. Nevertheless, one of the Act’s most debated aspects is its explicit exclusion of military and national-security uses, leaving a significant regulatory gap that must be carefully considered.
Exclusion of the Military Sphere: Article 2(3) of the AI Act
Article 2(3) of Regulation (EU) 2024/1689 establishes that the Act’s provisions do not apply to AI systems used exclusively for military or national-security purposes. This exclusion means that AI systems intended for defense are not subject to the strict restrictions imposed in other sectors. The exemption also extends to the outputs of AI systems used for military purposes that are neither placed on the market nor put into service in the European Union.
Recital 24 reinforces this position, noting that the rules protecting fundamental rights in civilian uses of AI do not extend to military applications. This approach reflects a strategic EU decision not to restrict the development and implementation of AI in the military sector, which is considered essential to the security and strategic autonomy of its Member States. However, this decision also raises concerns about the lack of oversight and the potential misuse of advanced technologies in defense contexts, which could have unforeseen consequences for human rights and global stability.
International Perspective and Regulatory Efforts
Despite the exclusion in the European regulation, the military use of AI has not remained entirely unregulated internationally. At the supranational level, NATO has adopted a proactive approach to regulating AI in military applications. In October 2021, NATO Defense Ministers endorsed an “Artificial Intelligence Strategy” incorporating six fundamental principles: lawfulness; responsibility and accountability; explainability and traceability; reliability; governability; and bias mitigation. These principles seek to ensure that AI is developed and used in defense ethically and within a clear accountability framework.
To ensure compliance with these principles, NATO has established the “Data and Artificial Intelligence Review Board (DARB),” a multidisciplinary body responsible for overseeing the use of AI in the military sphere. It is also responsible for developing certification standards to ensure that the military industry and armed forces implement AI systems that comply with the established principles. This effort is complemented by the European Parliament’s insistence on the need to impose human control over autonomous weapons systems, a concern reflected in various resolutions, including that of September 12, 2018.
In addition, within the United Nations context, the recent General Assembly resolution (UNGA 78/241) underscores the importance of global regulation of autonomous weapons, emphasizing the need for rigorous controls to prevent the indiscriminate or irresponsible use of these technologies.
Regulation in Spain: A National Example
Spain has made significant progress in regulating the military use of AI at the national level through the approval of Resolution 11197/2023, which establishes the “Strategy for the Development, Implementation and Use of Artificial Intelligence in the Ministry of Defense.”
This strategy adopts the six principles formulated by NATO and adds a seventh: “privacy.” This principle underscores the need to respect privacy at every stage in the development and use of AI in military contexts, reflecting a comprehensive approach to the protection of fundamental rights.
The Spanish strategy also prioritizes the use of AI in several key areas, including military mobility, intelligence, cyberdefense and decision-making support.
To ensure effective monitoring, a “permanent working group” has been created to develop and oversee this strategy. The group will advise the authorities on ethical issues arising from the use of AI in the military sphere and will promote research and training in AI technologies for military personnel.
Ethical and Legal Considerations
The exclusion of military AI uses from the European Act poses considerable ethical and legal challenges. Although principles-based regulation, such as that adopted by NATO and Spain, provides a guiding framework, it lacks the precision that more specific and detailed rules could offer. This ambiguity may lead to divergent interpretations and inconsistent application of the rules, potentially resulting in unintended risks or the misuse of AI technologies in the military sphere.
Ultimately, while the European Union has made a significant effort to regulate civilian uses of AI, its decision to exclude military uses from these rules leaves a regulatory gap that poses ethical and security challenges.
This analysis is based on the text of the AI Act as currently drafted and published in the Official Journal of the European Union, and on the discussions that have taken place concerning its implementation.
