International Law and Arms

Prohibitions, restrictions and export control

ILPI Senior Partner – dr. juris Gro Nystuen

UiO 2014
The big picture
How is international law created?
– Public international law = law between states
– All states are sovereign, therefore, they are all formally
equal
– In order to create common rules, states must therefore
make and enter AGREEMENTS (called treaties,
conventions, pacts, etc. – the title does not matter)
– Two-step processs: 1) States join together to negotiate
an international agremment, 2) Once the agreement is
negotiated, each state decides whether it will become a
party to (and thus bound by) the agreement
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Sources of international law
Since states must agree and consent,
the sources of law are agreements
The Statute of the International Court of Justice, Art. 38:
Primary sources:
• Treaties/conventions
• Customary law
• (General principles)
Secondary sources:
• Judicial practice
• Legal academic literature

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International Law and Arms

• The law regulating which weapons it is

allowed to use:
– Prohibitions
– Restrictions
• The law regulating transfer (export) of
arms

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Law regulating the conduct of
warfare
• Point of these agreements: one expects the
opposing party to adhere to them
• International law (incl. IHL) builds upon the principle
of reciprocity
• Throughout history, there have been many
agreements on the conduct of warfare
• 1700’s-1800’s: rules on military necessity and
limited warfare (as oposed to total warfare)
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Prohibited means of warfare
• Point of departure:
– The rule on distinction (between combatants and
civilians)
• The prohibition against indiscriminate attacks
– The principle of proportionality (excessive injury etc.
to civilians)

– The principle of superfluous injury and unnecessary

suffering (protection of combatants)

– Long-term and comprehensive damage to the environment

• These rules are codified in AP I to the Geneva Conventions
and are also part of customary international law
Distinction
AP I, art. 48
– …the Parties to the conflict shall at all times
distinguish between the civilian population and
combatants and between civilian objects and military
objectives

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Indiscriminate attacks
Art. 51 (4)
– Indiscriminate attacks are prohibited. Indiscriminate attacks
are:….

(b) those which employ a method or means of combat

which cannot be directed at a specific military objective;
or….

and consequently……, are of a nature to strike military

objectives and civilians or civilian objects without distinction.

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Proportionality
Art. 51 (5)

• (b): an attack which may be expected to

cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or
a combination thereof, which would be
excessive in relation to the concrete and
direct military advantage anticipated.
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Unnecessary
suffering/superfluous injury
Art. 35 (2)

• It is prohibited to employ weapons,

projectiles and material and methods
of warfare of a nature to cause
superfluous injury or unnecessary
suffering.

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ICJ Advisory Opinion (1996)
On the Legality of the Threat of Use
of Nuclear Weapons
• “In conformity with the aforementioned principles,
humanitarian law, at a very early stage, prohibited
certain types of weapons, either because of their
indiscriminate effects on combatants and civilians or
because of the unnecessary suffering caused to
combatants, that is to say, a harm greater than that
unavoidable to achieve legitimate military objectives.”

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Overview:
• Exploding ammunition (1868)
• Expanding bullets (1899)
• Poisonous gas (1899)
• Gas etc. (1925)
• Non-proliferation Treaty (1968)
• Biological Weapons (1972)
• ENMOD (1977)
• CCW (Inhuman Weapons) (1980 – 2003)
• Chemical Weapons (1993)
• Antipersonnel landmines (1997)
• Cluster munitions (2008)
The Petersburg Declaration,
renouncing the use of
Explosive Projectiles Under
400 Grammes Weight (1868)
• Unnecessary suffering of combatants
• Aimed at drawing a line between explosive artillery
shells and rifle ammunition
• Not prohibited to use against “hard targets”
(customary law)
The Hague Declaration
Concerning Expanding
Bullets (1899)
• Unnecessary suffering of combatants
– “The Contracting Parties agree to abstain from the
use of bullets which expand or flatten easily in the
human body, such as bullets with a hard envelope
which does not entirely cover the core or is pierced
with incisions.”
• Not prohibited to use in law enforcement
The Geneva Gas Protocol
(1925)
• Protocol for the Prohibition of the Use of
Asphyxiating, Poisonous or Other Gases, and
of Bacteriological Methods of Warfare

– Assumed to only ban first use

– “Consumed” by the Conventions on biological and

chemical weapons
The NPT - Nuclear Non-Proliferation Treaty
(1968) (The Grand Bargain)

• Article I
– Each nuclear-weapon State Party to the Treaty undertakes not
to transfer to any recipient whatsoever nuclear weapons ….
• Article II
– Each non-nuclear-weapon State Party to the Treaty undertakes
not to receive the transfer from any transferor whatsoever of
nuclear weapons….
• Article VI
– The nuclear weapons states commit to disarm with the final goal of
elimination of all nuclear weapons
ICJ on the legality of nuclear
weapons
• “the threat or use of nuclear weapons would generally be
contrary to the rules of international law applicable in
armed conflict..”

• “However, in view of the current state of international

law…the Court cannot conclude definitely whether the
threat or use of nuclear weapons would be lawful in an
extreme circumstance of self-defence, in which the very
survival of a State would be at stake.”
Biological Weapons
Convention (1972)
• Article 1: Each State Party to this Convention undertakes
never in any circumstances to develop, produce, stockpile
or otherwise acquire or retain:
– 1. microbial or other biological agents, or toxins whatever their
origin or method of production, of types and in quantities that
have no justification for prophylactic, protective or other peaceful
purposes;

– 2. weapons, equipment or means of delivery designed to use

such agents or toxins for hostile purposes or in armed conflict.
ENMOD (Environmental
Modification) (1977)
• “The Convention on the Prohibiting of Military or
other Hostile Use of Environmental Modification
Techniques”
• Came after the Vietnam war – made it prohibited to
use environmental modification as means of warfare

• AP I art.35 (3)
Convention on Certain
Conventional Weapons (1980)

• Convention on Certain Conventional Weapons

(CCW) - also called the UN Convention on
inhumane weapons.

• Full title: “Convention on Prohibitions or Restrictions

on the Use of Certain Conventional Weapons Which
May be Deemed to be Excessively Injurious or to
have Indiscriminate Effects”
CCW Protocols
• I: Non-Detectable Fragments (1980)
• II: Mines, Booby-traps etc. (1980 and 1996)
• III: Incendiary Weapons (1980)
• IV: Blinding Laser Weapons (1995)
• V: Explosive Remnants of War (2003)
Chemical Weapons
Convention (1993)
• Art. I (1). Each State Party to this Convention
undertakes never under any circumstances:
• (a) To develop, produce, otherwise acquire,
stockpile or retain chemical weapons, or
transfer, directly or indirectly, chemical weapons
to anyone;
• (b) To use chemical weapons;
Definition of a Chemical
Weapon
• Art. II (2) "Toxic Chemical" means:

– Any chemical which through its chemical action on life

processes can cause death, temporary incapacitation
or permanent harm to humans or animals.
• ….
Exceptions - Purposes Not
Prohibited Under the Convention

• Art. II (9) (a) Industrial, agricultural, research, medical,

pharmaceutical or other peaceful purposes;
• Art. II (9) (b) Protective purposes, namely those purposes directly
related to protection against toxic chemicals and to protection
against chemical weapons;
• Art. II (9) (c) Military purposes not connected with the use of
chemical weapons and not dependent on the use of the toxic
properties of chemicals as a method of warfare;

• Art. II (9) (d) Law enforcement including domestic riot control

purposes.
Mine Ban Convention (1997)
• Article 1 (1) Each State Party undertakes never
under any circumstances:
– a) To use anti-personnel mines;
– b) To develop, produce, otherwise acquire, stockpile, retain
or transfer to anyone, directly or indirectly, anti-personnel
mines;
– c) To assist, encourage or induce, in any way, anyone to
engage in any activity prohibited to a State Party under this
Convention.
Convention on Cluster
Munitions
• Art. 1

– 1. Each State Party undertakes never under any

circumstances to:
• (a) Use cluster munitions;

• (b) Develop, produce, otherwise acquire, stockpile, retain or

transfer to anyone, directly or indirectly, cluster munitions;

• (c) Assist, encourage or induce anyone to engage in any activity

prohibited to a State Party under this Convention.
Cluster weapons
• A weapon (air or surface delivered) which
consists of a parent munition which contains
several sub-munitions

– Area weapons (covers ”footprints”) often with large

numbers of sub-munitions

– Failure rates from 1 - up to 70%, depending on

whether or not they have self destruct/self
neutralisation mechanisms, and how they work
The relationship between the
general rules and the specific rules
• The fact that a weapon is not subject to a
specific prohibition does not necessarily
mean that the weapon is allowed: One must
always assess weapons with regard to the
basic principles of distinction and
unnecessary suffering.
“Non-lethal” / ”less lethal”
weapons
• Difficult to distinguish between “lethal” and “non-
lethal” weapons (AP mines are designed to be non-
lethal)

• If a weapon is categorised as “non-lethal” this does

not have any impact on whether the weapon is
prohibited under IHL

– For example, tear gas is prohibited as a means of warfare

(chemical weapon) but not means of law enforcement
Drones (UAV)
• Can be problematic like all other remotely delivered
weapons, but can also contribute to better
implementation of the rule on distinction through
surveilance

• (Use of drones can be very pproblematic with regard to

human rights (extrajudicial executions))

• Not problematic with regard to IHL per se

Autonomous weapons systems
(AWS) (Not yet developed)
• High tech, but can hardly separate between
civilians and combattants or undertake
proportionality assessments

• Clearly problematic with regard to distinction

and proportionality
The Arms Trade Treaty (ATT)
• Not disarmament or arms control or trade
• “Export” of EU/Norway’s arms export regimes
• Negotiations since 2010, based on a rule of
consensus
• Predictable failures at the July 2012 and 2013
Diplomatic conferences in NY
• Adopted by the GA in April 2013
The dynamics of the negotiations

• Four ”groups”:
• - ”Progressive” states (focus on
humanitarian goals)
• - States in favour of an ATT, but keen
to keep the P5 on board
• - Sceptical States
• - Opposing States
How the consenus rule worked
• History of the ”consensus” rule and its
relationship to treaty law
• No one expected consensus: the issue
was to get the ”right” states to block
• The text was: Chair’s best guess at
what could be acheived with only the
”usual suspects” bloking
• The text therefore is somewhat weak
Scope
• All conventional arms listed in the UN
register (tanks, artillery systems,
missiles and missile launcers etc.)
• Small arms and light weapons
• Ammunition
• Parts and components
National implementatiomn

• Article 5
• State Parties must maintain or adopt
national export control systems that
gives the state an obligation to
control/authorise all arms exports
covered under the treaty
Article 6 (2)
• A State Party shall not authorize any
transfer of conventional arms covered
under Article 2 (1) or of items covered
under Article 3 or Article 4, if the transfer
would violate its relevant international
obligations under international
agreements to which it is a Party, in
particular those relating to the transfer
of, or illicit trafficking in, conventional
arms.
• Pertains to both:
• - How the arms would be used
• AND
• - Whether the exported arms
themselves are consistent with IHL
requirements
Article 6 (3)
• A State Party shall not authorize any transfer
of conventional arms covered under Article 2
(1) or of items covered under Article 3 or
Article 4, if it has knowledge at the time of
authorization that the arms or items would be
used in the commission of genocide, crimes
against humanity, grave breaches of the
Geneva Conventions of 1949, attacks directed
against civilian objects or civilians protected as
such, or other war crimes as defined by
international agreements to which it is a Party.
Article 7 (1)
• 1. If the export is not prohibited under Article 6, each
exporting State Party,…, shall, …, assess the potential that
the conventional arms or items:
• (a) would contribute to or undermine peace and security;
• (b) could be used to:
• (i) commit or facilitate a serious violation of
international humanitarian law;
• (ii) commit or facilitate a serious violation of international
human rights law;
• (iii) commit or facilitate an act constituting an offence under
international conventions or protocols relating to terrorism to
which the exporting State is a Party; or
• (iv) commit or facilitate an act constituting an offence under
international conventions or protocols relating to
transnational organized crime to which the exporting State
is a Party.
Article 7 (3)

• . If, after conducting this assessment

and considering available mitigating
measures, the exporting State Party
determines that there is an overriding
risk of any of the negative
consequences in paragraph 1, the
exporting State Party shall not
authorize the export.
• The exporting State Party, in making
this assessment, shall take into
account the risk of the conventional
arms covered under Article 2 (1) or of
the items covered under Article 3 or
Article 4 being used to commit or
facilitate serious acts of gender-based
violence or serious acts of violence
against women and children.
ATT – process ahead

• EIF: 25 December
• First Conference of States Parties
(CSP) August 2015
• Issues:
– Rules of Procedure for CSP
– Secretariat
ATT and peace

• A strickt interpretation of articles 6 and

7 would contribute greatly to enhanced
observance of IHL and IHRL, and
would thus, implicitly, contribute to
peace
• US (and others’) arms sales to groups
in Syria and Iraq??