Humanization of Arms Control

Paving the Way for a World free of Nuclear Weapons

Daniel Rietiker

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781138225428
• eBook ISBN: 9781315399683
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Despite clear legal rules and political commitments, no significant progress has been made in nuclear disarmament for two decades. Moreover, not even the use of these weapons has been banned to date. New ideas and strategies are therefore necessary. The author explores an alternative approach to arms control focusing on the human dimension rather than on States' security: "humanization" of arms control!

The book explores the preparatory work on arms control treaties and in particular the role of civil society. It analyzes the positive experiences of the movements against chemical weapons, anti-personnel mines, and cluster munitions, as well as the recent conclusion of the Arms Trade Treaty. The author examines the question of whether civil society will be able to replicate the success strategies that have been used, in particular, in the field of anti-personnel mines (Ottawa Convention) and cluster munitions (Oslo Convention) in the nuclear weapons field. Is there any reason why the most destructive weapons should not be outlawed by a legally binding instrument?

The book also explains the effects of weapons, especially nuclear weapons, on human beings, the environment, and global development, thereby focusing on vulnerable groups, such as indigenous peoples, women, and children. It takes a broad approach to human rights, including economic, social, and cultural rights. The author concludes that the use of nuclear weapons is illegal under international humanitarian and human rights law and, moreover, constitutes international crimes under the Rome Statute of the International Criminal Court.

In his general conclusions, the author makes concrete proposals for the progress toward a world without nuclear weapons.

Part I
Humanization of arms control treaties dealing with non-nuclear weapons

1 Introductory remarks^*

A. SCOPE OF PART I

Part I of the present study focuses on the following treaties:

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, January 13, 1993 (hereafter “CWC”);

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, September 18, 1997 (hereafter “Ottawa Convention”); and

Convention on Cluster Munitions, May 30, 2008 (hereafter “Oslo Convention”).

Several reasons support this choice. First, all three treaties were adopted after the Cold War ended and are therefore perceived as modern instruments concluded in a spirit of cooperation rather than of simply coexistence. Second, these treaties can be considered effective, although the Oslo Convention entered into force too recently to be fully assessed. In any event, they are intended to be models for future treaties. Third, the goal of Article I of all three treaties is to abolish entire categories of weapons through a comprehensive list of prohibitions (e.g., development, production, acquisition, stockpiling, transfer) and a positive obligation to destroy the weapons in question. By the same token, States Parties agree to refrain from using the targeted weapons. Finally, these instruments clearly aim at achieving universal ratification and pursue the vision of a world free from the dangers of those weapons.

Arms Trade Treaty, April 2, 2013 (hereafter “ATT”)

The ATT, adopted on April 2, 2013, is a particularly illustrative example of the close link between arms control and human rights. It prohibits, inter alia, the exportation of conventional weapons to States that could use them to commit serious violations of humanitarian or human rights law (see Article 7 ATT). The special attention given to the ATT in the present study is also justified by the fact that it is fairly new and relatively unexplored by legal writers.

For these reasons, it is these four treaties that are examined in Part I. This does not mean that other arms control treaties that aspire to establish a significant protection of the individual are disregarded. The CWC negotiations were closely linked to the conclusion of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (BWC of April 10, 1972), the first arms control treaty aimed at eliminating an entire category of weapons. Moreover, the use of certain gases had already been banned by the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (hereafter “Geneva Protocol”) signed in Geneva on June 17, 1925 and inspired by the use of toxic gases in World War I. The negotiations on the CWC will be viewed together with efforts to ban biological weapons.

Furthermore, there is some overlap between the Ottawa and Oslo Conventions and the 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 of October 10, 1980), and in particular its Protocols on the Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) and on Explosive Remnants of War (ERW) (Protocol V). The relationship between these protocols – considered instruments of international humanitarian law because they restrict only the actual use of the weapons dealt with – and the Ottawa and Oslo Conventions will be explained to the extent necessary for developing the main concepts in this study.

The proposed human-centered approach to arms control treaties has been facilitated, from the author’s point of view, by certain recent developments in the international legal order. The first development consists in the blurring of the boundaries of the law applicable in peacetime and that regarding armed conflict as a result of modern, asymmetric warfare and, therefore, concerns the structure of the international legal order more generally. The second development relates to the notions of security and development, which have expanded to encompass concerns for the well-being of human beings (“human security” and “human development”). These recent developments are explored in the following preliminary section.

B. RECENT DEVELOPMENTS IN THE INTERNATIONAL LEGAL ORDER FAVORING THE CONCLUSION OF THE TREATIES EXAMINED IN PART I

1. Permeability of the borders between the law applicable in peacetime and in armed conflict

In order to place the subsequent developments concerning the human dimension of treaties introduced into their contemporary legal framework, it is appropriate, first, to recall the traditional domains of international law applicable to the instruments analyzed here and, second, to examine whether these well-established categories can be maintained.

The CWC and the Ottawa and Oslo Conventions are, above all, arms control treaties. The content of the ATT is mixed, but does include arms control features. The “immediate neighbors” in this field are the other two categories that deal with international peace and security, namely, the international humanitarian law of armed conflicts, jus in bello, and jus ad bellum, which provide for principles governing the legality of the use of force in international law. The body of law established by these three disciplines is sometimes called “law of military security.”¹ Even though their scope is not identical, there is a close link between them. Indeed, when defining the law applicable to the use or threat of nuclear weapons, the International Court of Justice (ICJ) summarized this link in the following terms in its 1996 Advisory Opinion:

In the light of the foregoing the Court concludes that the most directly relevant applicable law governing the question of which it was seized, is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons that the Court might determine to be relevant.²

In light of this quotation, it may be recalled that, traditionally, jus ad bellum aims at avoiding war and, in the event of a failure of this goal, jus in bello limits the horrors of armed conflict for the combatants as well as for the civilian population.³ From this author’s point of view, these two categories are nevertheless not the only law relevant for the question of arms control, in particular because the dichotomy between the legal norms applicable during peace time and war has become increasingly blurred.⁴ In parallel, a deeper interdependence between the fields of human rights and humanitarian law can be observed as a consequence.⁵

Several elements attest the fading of borders between the legal categories after World War II: First, the Genocide Convention of 1948 prohibits that crime under all circumstances, “whether committed in time of peace or in time of war.”⁶ In the same year, the International Court of Justice held, in the Corfu Channel case, that the obligations of the Albanian authorities to prevent the British warships from hitting the mines were based

not on the Hague Convention of 1907, No. VII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.⁷

In the 1950s, UN bodies gradually started recognizing that human rights do play a role in armed conflict. As an example, the UNGA invoked human rights as early as in the context of the 1953 Korean conflict and the 1956 events in Hungary.⁸ The UN Security Council (UNSC) made reference to “essential and inalienable human rights” that “should be respected even during the vicissitudes of war” when referring ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Table of cases
• Abbreviations
• Acknowledgements
• Foreword
• General introduction
• Part I Humanization of arms control treaties dealing with non-nuclear weapons
• Part II Humanization of arms control treaties dealing with nuclear weapons
• General conclusions and proposals for progress toward a world without nuclear weapons
• Bibliography
• Index