UPDATE: Research Guide to International Weapons Law

 

By Gudrun Monika Zagel

 

Gudrun Zagel is Professor of International Law and Human Rights at the University of the Federal Army Munich. She received her legal education from the University of Salzburg Law School as well as from the University of Texas School of Law at Austin, where she was a Fulbright Scholar. Previous work places include the Department of International Law at the University of Salzburg, where she held the position of an Assistant Professor, and consultant at the Office of the Legal Advisor of the Austrian Ministry of Foreign Affairs. Gudrun is the author of a treatise and numerous articles on international economic law and co-editor of Smit & Herzog on The Law of the European Union (Matthew Bender).

 

Published January 2017

See the Archive Version!

 

Table of Contents

1.     Introduction

Since the end of the 19th century, with the development of technically more and more sophisticated weapons that cause increasingly brutal injuries to combatants as well as civilians, states started not only to ban certain types of weapons entirely but also to limit the quantity and to regulate the use of weapons. The 1868 Declaration of St. Petersburg is the first formal agreement banning the use of certain weapons in war. The two Hague Peace Conferences in 1899 as well as in 1907 brought progress in this respect. After fairly unsuccessful attempts in the League of Nations, a true multilateral process of disarmament started after the end of World War II in the framework of the UN, but also on the regional level.

 

The international law of weapons existing today comprises a large variety of rules. Whereas weapons of mass destruction are governed by a rather comprehensive and restrictive regime, in the field of conventional arms the rules are less widespread and existing treaties usually only govern specific categories of weapons and ammunitions. Also the scope of regulation differs from a complete ban to limitations on the production, stockpiling, use or trade in arms. Likewise, the compliance and verification mechanisms differ considerably depending on the type of arms and ammunition. Finally, there are rules on the use of arms in war time as a means and method of warfare, as well as on the use of arms in peace time for the purpose of law enforcement.

 

After an overview on general sources on international weapons law (I.) and institutions dealing with weapons, arms control and disarmament (II.), this research guide will, provide references on rules banning or limiting weapons of mass destruction (III.), rules governing conventional weapons (IV.), and rules regulating the use of weapons (V.)

 

2.     General Information

 

2.1.          General Information on Arms and Arms Trade:

 

2.2.         Basic Bibliography:

·       Marauhn, Thilo, Dispute Resolution, Compliance Control and Enforcement of International Arms Control Law, in: Ulfstein, Geir (ed.) Making Treaties Work. Human Rights, Environment and Arms Control, Cambridge: Cambrigde University Press 2010, 243-272.

 

2.3.         Leading Journals and Periodicals:

 

2.4.         Research Guides on the Internet:

 

2.5.         Libraries:

 

2.6.         Treaty and Documents Databases:

 

3.     Relevant Institutions

 

3.1.          United Nations

 

Relevant Bodies:

 

Further Information:

 

3.2.         League of Nations:

 

3.3.         OSCE:

 

3.4.         NATO:

 

3.5.         ICRC:

 

3.6.         Research Institutions:

 

3.7.         NGOs:

 

3.8.         National Authorities Dealing with Weapons and Disarmament:

 

4.     Weapons of Mass Destruction

With respect to weapons of mass destruction (nuclear, biological and chemical weapons), international treaty law provides the most comprehensive rules on their production, use and non-proliferation, as well as compliance.

 

4.1.          General Bibliography:

 

4.2.         Nuclear Weapons

In contrast to biological and chemical weapons, there is not complete ban of nuclear weapons. There are, however, numerous multilateral treaties governing specific aspects of nuclear weapons, such as the proliferation of nuclear weapons, establishing nuclear-weapon free zones, and banning tests with nuclear weapons.

 

4.1.2. General Bibliography:

 

4.2.2. Non-Proliferation of Nuclear Weapons

 

Legal Sources:

 

Bibliography:

·       Kiernan, Paul M., ‘Disarmament’ under the NPT: Article VI in the 21st Century, in: 20 Journal of International Law and Practice (2011) 381-400.

·       Pietrobon, Alessandra, Nuclear Powers' Disarmament Obligation under the Treaty on the Non-Proliferation of Nuclear Weapons and the Comprehensive Nuclear Test Ban Treaty: Interactions Between Soft Law and Hard Law, in: 27 Leiden Journal of International Law (2014),169-188.

·       Rockwood, Laura, The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the IAEA Safeguards Agreements, in: Ulfstein, Geir (ed.), Making Treaties Work. Human Rights, Environment and Arms Control, Cambridge: Cambrigde University Press 2010, 301-323.

 

4.2.3. Nuclear Tests

 

Legal Sources:

 

Bibliography:

 

4.2.4. Reduction of Nuclear Arms

During the Cold War, but also after 1990 the US and the USSR have concluded a number of bilateral agreements on the reduction of short range and medium range missiles.

 

Legal Sources:

 

Bibliography:

 

4.2.5. Legality of the Use of Nuclear Weapons

 

Legal Sources:

 

Bibliography:

·       Hayashi, Nobuo, Legality Under "jus ad bellum" of the Threat of Use of Nuclear Weapons, in: Nystuen, Gro/Casey-Maslen, Stuart/Bersagel, Annie Golden (ed.), Nuclear Weapons under International Law, Cambridge: Cambridge University Press 2014, 31-58.

 

4.2.6. Nuclear-Free Zones

 

Legal Sources:

 

Bibliography:

 

4.2.7. Nuclear Terrorism

 

Legal Sources:

 

Bibliography:

 

4.2.8. Organizations Monitoring Compliance with Nuclear Treaties:

 

4.3.         Biological and Chemical Weapons          

 

Legal Sources:

 

Bibliography

 

General:

 

Biological Weapons:

 

Chemical Weapons:

 

Institutions Monitoring Compliance:

 

Useful Links:

 

5.     Conventional Weapons and Ammunition

There are a number of treaties addressing conventional weapons and banning or limiting their number, use or proliferation. Some categories of weapons, such as autonomous weapons systems or small arms and ammunition are, however, hardly regulated or regulation is still under discussion.

 

5.1.          1980 UN Convention on Certain Conventional Weapons

The Convention provides a framework for negotiating the prohibition or restriction of specific conventional weapons that are considered to be excessively injurious or having indiscriminate effects. So far, 5 protocols have been concluded.

 

Legal Sources:

 

Implementation:

 

Useful Links:

 

5.2.         Land Mines

 

Legal Sources:

Bibliography:

·       Lawand, Kathleen, The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention), in Ulfstein, Geir (ed.), Making Treaties Work. Human Rights, Environment and Arms Control, Cambridge: Cambrigde University Press 2010, 324-350:

·       Maresca, Louis /Maslen Stuart (eds.), The Banning of Anti-Personnel Landmines. The Legal Contribution of the International Committee of the Red Cross 1955-1999, Cambridge: Cambridge University Press 2008.

 

Useful Links:

 

5.3.         Cluster Munitions

 

Legal Sources:

 

Bibliography:

 

Useful Links:

 

5.4.         Small Arms and Light Weapons (SAWL)

 

Legal Sources

 

United Nations:

 

OSCE:

 

Regional: Africa:

 

Regional: Americas:

 

Bibliography:

 

Useful Links:

 

5.5.         Autonomous Weapon Systems

 

Legal Sources

So far, there is no specific treaty governing the prohibition, limitation of use or trade in autonomous weapon’s systems. Accordingly, the existing rules of treaty law and customary international law on the use of weapons apply (Cf. infra Chapter V.)

 

Bibliography:

·       Bradan, Thomas, Autonomous Weapon Systems: The Anatomy of Autonomy and the Legality of Lethality, in: 37 Houston Journal of International Law (2015), 235-274.

·       Crootof, Rebecca, The Varied Law of Autonomous Weapon Systems, in: Williams, Andrew/Scharre, Paul (eds.), NATO Allied Command Transformation, Autonomous Systems: Issues for Defence Policy Makers, Norfolk: HQ SACT 2015, 98-126.

 

Useful Links:

 

Cyber Weapons

So far, there is no specific legal instrument on cyber weapons, consequently the rules on the use of weapons (Cf. infra Chapter V) apply.

 

Bibliography:

 

5.6.         Trade in Conventional Arms

Another possibility to limit the use of conventional weapons is to limit their availability. This is done through a number of regimes limiting and regulating the trade in arms.

 

Basic Information:

 

Legal Sources:

 

Bibliography:

 

Useful Links:

 

5.7.         Arm’s Embargoes

 

Legal Sources:

 

Bibliography:

 

5.8.         Reduction and Limitation of Conventional Arms

 

Legal Sources:

 

Monitoring Compliance:

 

Bibliography:

 

6.     Rules Regulating the Use of Weapons

The use of weapons that are not prohibited by one of the regimes mentioned in Part III or IV of this guide is governed by the rules of international law. In times of armed conflict, the rules of international humanitarian law apply, in times of peace, the use of weapons must comply with the requirements of international human rights law.

 

6.1.          During Armed Conflict

During armed conflict, Hague and Geneva Law apply to the use of all weapons that are not banned or regulated by specific treaties (see Part II and IV). These rules are of special importance for new categories of weapons not yet covered by specific treaties (e.g. autonomous weapon systems, cyber weapons, for both categories see also infra Part. IV).

 

Legal Sources:

 

Bibliography:          

 

6.2.         During Peace Time

During peace time, arms may be used according to the national legal framework. However, states hold obligations under international law to ensure that basic human rights (in particular the right to life) are respected when weapons are used. 75 percent of all small arms are held by civilians, private security companies, armed groups or gangs, whereas only 25 per cent are held by law enforcement personnel. The use of weapons by law enforcement personnel is directly attributable to the state and thus states are obliged to ensure that the use of weapons by officials comply with international human rights law. But also regarding the use of weapons by civilians, states have obligations under human rights law to protect other persons under their jurisdiction from death and non-lethal violence caused by weapons in situations of homicide, suicide, extrajudicial killings.

 

Legal Sources:

 

Bibliography:

 

Additional Useful Links: