A Guide to International Disarmament Law

Stuart Casey-Maslen, Tobias Vestner

• Éditeur: Routledge
• Année: 2019
• ISBN:
  9781351108096
• Édition: 1
• Sujet: Jura
• Sous-sujet: Völkerrecht

Disarmament is integral to the safeguarding and promotion of security, development, and human rights. Hundreds of millions of dollars are spent each year on disarmament operations, yet no comprehensive guide exists to explain clearly the international rules governing disarmament. This book seeks to fill that gap. It describes the international legal rules that govern disarmament and the operational, political, and technical considerations that govern their implementation. This book aims to support compliance, implementation, and further development of international disarmament law.

Traditionally, disarmament focused on weapons of mass destruction. This remains a critically important area of work. In recent decades, the scope of disarmament has broadened to encompass also conventional weapons, including through the adoption of rules and regulations to govern arms transfers and measures to eliminate specific munitions from stockpiles and to destroy explosive remnants of war. There have also been four "generations" of programmes to address small arms and light weapons at national or sub-national level through disarmament, demobilisation, and reintegration (DDR) programmes during and following the end of armed conflict.

While an internationally accepted definition of disarmament does not yet exist, it is widely agreed that disarmament encompasses or interrelates with prohibitions and restrictions on the development, production, stockpiling, testing, and transfer of weapons and on their destruction. In addition to clarifying these elements, chapters of this guide will also consider the relationship between disarmament and the law of armed conflict, and with the United Nations Security Council, human security, public health, and non-state actors.

1
The core Concepts of International Disarmament Law

The definition and scope of disarmament

1.1 While there is no internationally accepted definition of disarmament, it is generally agreed that disarmament entails the renunciation of weapons. Indeed, an ordinary dictionary definition of the term disarmament is ‘the act of taking away or giving up weapons’.¹ In 1978, the process of disarmament was described in the report on the First Special Session of the United Nations (UN) General Assembly on Disarmament as ‘a gradual but effective process beginning with a reduction in the present level of armaments’.² According to the North Atlantic Treaty Organization (NATO), disarmament ‘refers to the act of eliminating or abolishing weapons (particularly offensive arms) either unilaterally (in the hope that one’s example will be followed) or reciprocally’.³ The most obvious form of such renunciation is destruction.

1.2 Disarmament usually results from the voluntary acceptance of international obligations by states. This acceptance is expressed through the conclusion of, and adherence to, treaties or other international agreements. Thus, in the 1978 report on the First Special Session of the UN General Assembly on Disarmament, UN member states declared that:

Genuine and lasting peace can only be created through the effective implementation of the security system provided for in the Charter of the United Nations and the speedy and substantial reduction of arms and armed forces, by international agreement and mutual example, leading ultimately to general and complete disarmament under effective international control.⁴

1.3 The International Court of Justice (ICJ) subsequently endorsed the view that disarmament is primarily a voluntary undertaking by states:

in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception’.⁵

That does not mean, of course, that disarmament can never be imposed: by becoming a UN member (through signature and ratification of the UN Charter),⁶ a state is accepting the writ of the UN Security Council, which may order measures to be taken in case of a threat or breach of international peace and security, irrespective of the wishes of the targeted state.⁷

1.4 In addition to the requirement to destroy weapons, other measures that are widely considered to be part of disarmament are ‘the balanced reduction of armed forces and of . . . armaments’⁸ (also termed ‘arms control’), limitations on the transfer of weapons⁹ (in certain circumstances, also described as ‘non-proliferation’¹⁰), and prohibitions or restrictions on the use of weapons.¹¹ Prohibitions on the use of weapons, which firmly underpin any duty of disarmament, are conceptually distinct from both arms control and non-proliferation regimes. Indeed, with the exception of the 1971 Biological Weapons Convention,¹² which refers in its preamble to the prohibition of use during warfare laid down under the 1925 Geneva Protocol,¹³ all global disarmament treaties¹⁴ explicitly prohibit the use of the weapons being outlawed. In contrast to the law of armed conflict, however, in most cases the prohibition on use in a disarmament treaty applies not only during, and in connection with, an armed conflict, but also at all other times, including in peacetime.

1.5 Thus, ‘disarmament’ has often been used as a generic term for weapons-related activities, not only concerning the destruction of stockpiles, but also other forms of arms control and non-proliferation, among other activities.¹⁵ That said, however, NATO objects to the ‘inaccurate’ use of disarmament ‘as a synonym for arms control’.¹⁶ This latter form of endeavour has been described by John Borrie and Tim Caughley as ‘the exercise of restraint in the acquisition, deployment and use of military capabilities, including armaments, by means of international agreements among states’.¹⁷ They point out that arms control developed ‘as a method to manage arms competition, rather than reverse it’ (though they concede that latterly the term ‘has often been equated with disarmament’).¹⁸ Indeed, Jozef Goldblat has observed that arms control is often used interchangeably with ‘ “arms regulation”, “arms limitation”, “arms reduction” or even “disarmament” ’.¹⁹ In fact, the principal distinction between arms control and disarmament is that arms control works on the basis that weapons will – and indeed should – persist as a feature of international relations.

1.6 Other measures that are integral to (or at least closely associated with) international disarmament law include prohibitions on weapons research, development, testing, and production. These measures go hand in hand with a legal prohibition on stockpiling and an obligation to destroy existing stocks. Confidence and security-building measures (CSBMs) are critical to promoting trust among states in the implementation of a disarmament treaty to which they are party.

Disarmament and international law

The primary and subsidiary sources of international law

1.7 As noted in the Preface, the three primary sources of international law according to the 1945 Statute of the International Court of Justice²⁰ are treaties;²¹ custom;²² and general principles of law.²³ Each of these sources plays an important role in international disarmament law, as discussed in this section. In addition to the three primary sources identified in the ICJ Statute, a binding unilateral declaration by a state should also be considered a primary source of international law.²⁴ The 1974 judgment in which the ICJ held that a statement by the French president was legally binding on France concerned a pledge never again to conduct atmospheric testing of nuclear weapons.²⁵ Also of great significance to international disarmament law are the two subsidiary means for the determination of rules of international law: judicial decisions (case law, whether at the national, regional, or global level) and the writings of ‘publicists’ (meaning the world’s leading public international lawyers).²⁶

Treaty as a primary source of international law

1.8 International disarmament law is mainly treaty-based. A treaty is generally defined in international law as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.²⁷ Thus, an agreement will be internationally legally binding when (1) it has been made by states; (2) is in writing; and (3) in the circumstances of its negotiation and adoption, is intended to be regulated by international law. If it meets all of these criteria, it does not matter whether a particular text is called a treaty, a convention, a protocol, a declaration, or even a memorandum of understanding.

1.9 A treaty enters into force after a set number of negotiating states have indicated their consent to be bound. Multilateral disarmament treaties generally specify a threshold of ratifications necessary for entry into force and a certain period after the last ratification. Certain disarmament treaties, notably the 1996 Comprehensive Nuclear-Test-Ban Treaty (CTBT),²⁸ require ratification by specific states. The CTBT is not yet in force, as several of the states named in a legally binding annex have not yet ratified the treaty.²⁹ As soon as a treaty enters into force, its provisions bind states as soon as they become party to it (see Box 1.1).

Box 1.1 Signatory States and States Parties to Treaties

Becoming a state party to a treaty is normally achieved by the separate acts of signature and ratification* or by the singular act of accession. A state that ratifies or accedes to a disarmament treaty typically becomes party to it after a set period of time (as long as the treaty itself has entered into force). A state party is one that is fully bound by all of the provisions of the treaty. This is so, unless it is possible to enter ‘reservations’ to some of the provisions. Global disarmament treaties typically prohibit reservations.

Instruments of ratification or accession are sent to – ‘deposited with’ – the treaty depositary. This is often the Secretary-General of the United Nations: the UN Secretary-General is the depositary for the 1992 Chemical Weapons Convention, the 1997 Anti-Personnel Mine Ban Convention, the 2008 Convention on Cluster Munitions, and the 2017 Treaty on the Prohibition of Nuclear Weapons. The depositary may also, however, be an individual state (Switzerland is the depositary for the 1949 Geneva Conventions and their Additional Protocols) or a small group of states. For instance, the depositaries of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the 1971 Biological Weapons Convention are the Russian Federation (as successor state to the Soviet Union), the United Kingdom, and the United States of America.

A signatory state – meaning a state that has signed but not become a party to the treaty – has more limited obligations un...

Table des matières

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Contents
• List of text boxes
• Cases and materials
• Preface
• The aim and layout of the guide
• Acknowledgements
• Introduction
• 1 The core concepts of international disarmament law
• 2 The core elements of disarmament treaties
• 3 Disarmament, arms control, and security
• 4 Use and threat of use
• 5 Development and testing
• 6 Transfer
• 7 Stockpile destruction
• 8 Addressing the effects of weapons
• 9 Reporting, verification, and compliance
• 10 Disarmament, demobilisation, and reintegration (DDR)
• Outlook
• Bibliography
• Annexes
• Glossary of abbreviations and acronyms
• Index