Taking Stock, Moving forward: Disarmament under International Law
Ashley Müller: In this mini-series, we have the pleasure of conversing with Dr Stuart Casey-Maslen on the topic of International Disarmament Law. He is joined by Ms Dominika de Beauffort, Senior Policy Officer with the Security and Law Programme at the GCSP, where she is also the Course Director of the International Disarmament Law executive course and virtual learning journey.
Dominika de Beauffort: Stuart, welcome to the GCSP today and thank you for taking part in our mini-series on International Disarmament Law. Since the GCSP is celebrating its 25th Anniversary this year, I thought it would be interesting to mention that the history of the GCSP is actually closely linked to the topic of disarmament. It was after the Geneva Summit of 1985 between Ronald Reagan and Mikhail Gorbachev that the Swiss Confederation took the initiative to design a nine-month executive training programme for government officials to strengthen national expertise in the field of disarmament and international security. So, a very important topic back then and it still is, so really interesting to exchange on recent developments and on the way ahead. Before we delve into the realm of international disarmament law, I would suggest to stop a moment and speak about international law as such. Stuart, a brief reminder to all non-lawyers listening to us: what is international law, and what are the sources of international law?
Stuart Casey-Maslen: So international law is the body of law that govern in particular, but not only the conduct of states, how states behave both with respect to each other, and with respect to what they do on their own territory. Just like domestic law, there are different branches of international law. And there are also different types. There's International Civil Law, which deals with the behaviour, for example, with respect to human rights, but there's also international criminal law, which means that individuals in particular, when they act on behalf of a state, can commit international crimes and can be held accountable for those crimes. In terms of the sources, these are set out in the statute of the International Court of Justice. That's a treaty that was adopted in 1945, along with the United Nations Charter, and article 38, sets out in some detail, what both the primary and subsidiary sources of international law are. The most important primary sources are treaties, binding legal agreements between states, and customary law. That's a practice of states that has become generally accepted as a legal obligation. In terms of subsidiary sources, you have, of course, case law from courts, whether that be domestic or international courts, but also the writing of the leading publicists, the leading international lawyers.
Dominika de Beauffort: So, it will be interesting to see afterwards what sources of international law are the most important to disarmament. But before we do that, I'd like to take a short look back at history because disarmament and arms control are by far not new phenomena. What would you say was the first international instrument to regulate the arms trade?
Stuart Casey-Maslen: So probably the first treaty, that regulated part of the arms trade was actually a treaty about slavery, not primarily a treaty about weapons, the 1890 Brussels Agreement, restricted and prohibited the importation of firearms into Africa, the aim being to slow down what was still quite a vigorous trade in slaves. It wasn't the only instrument of that time that regulated different aspects of weapons. For example, the use of weaponry was regulated first in the 1899, Hague Peace Conference, and then in the 1907 Conference, but both of these Conferences failed to agree to disarmament measures, or measures to reduce armaments.
Dominika de Beauffort: And then the League of Nations was established in 1919 and interestingly, a global conference on disarmament was held under its auspices in Geneva in 1932 and the goal was to discuss universally reducing and limiting all types of weapons. But unfortunately, agreement on the draft convention was never reached. Another agreement from the period between the two world wars is the Kellogg-Briand Pact that was signed in Paris in 1928 by Germany, France and the US. Did this treaty contain any clear obligations under international law?
Stuart Casey-Maslen: It did, just to mention on the League of Nations, there were disarmament obligations, but they were primarily imposed on Germany, Germany was held responsible for the conduct of the existence in the conduct of the First World War, and there were very significant far reaching disarmament obligations imposed on it as a result of its defeat. The Kellogg-Briand Pact was a landmark in international law, but in a slightly different area, in an area called jus ad bellum. That's actually the body of law that governs the use, between states of force and it certainly did contain clear obligations. The primary obligation was the renunciation of warfare as a means of national policy. And the fact that it became accepted as customary law quite quickly was then used as the basis for prosecution of the Nazis in the Nuremberg tribunal that followed the end of the Second World War, including a bit of controversy, about whether that was actually a criminal offense or just an offense by states.
Dominika de Beauffort: And after the Second World War, in 1945, and the UN Charter was adopted and states have really concluded numerous international disarmament treaties, since then, both bilaterally and multilaterally. We can think of an Antarctic Treaty of 1959 during the Cold War, or 1968, the Nuclear Non-Proliferation Treaty, or in Europe the Treaty on Conventional Armed Forces in Europe of 1980. So, with all these treaties today, would you say that they fall under disarmament? Or would maybe the right heading be arms control and non-proliferation?
Stuart Casey-Maslen: So, as you've rightly indicated, there is a dispute amongst lawyers among states as to how to classify certain agreements. For example, the United States calls the Antarctic Treaty, a non-armament treaty. Others suggest that it's a rule, though, it's a treaty that sets down rules of jus ad bellum, because you cannot station weapons of mass destruction in the Antarctic. And the nuclear non-proliferation treaty, as the name suggests, is about restricting the proliferation of nuclear weapons. And then the Treaty on Conventional Armed Forces was about controlling the balance of armed forces between at the time the end of the Soviet bloc, and NATO and the western Alliance, where you describe those different treaties is very much a matter of debate. Some people use the term disarmament as an umbrella term, more people, I think, today would use the term arms control as an umbrella term for all these different agreements.
Dominika de Beauffort: So there is no universally accepted definition of disarmament, right?
Stuart Casey-Maslen: No, that's correct. We'll talk about the features of a disarmament treaty, at least in our view, but there is no consensus opinion on whether disarmament is a global umbrella term, or whether it refers more specifically to treaties that include the destruction of stockpiles.
Dominika de Beauffort: So bearing this in mind would you say that today disarmament law constitutes an independent and a specialised branch of international law?
Stuart Casey-Maslen: It certainly is, it's a body of law that is primarily focused on treaty law, but there are certain accepted customary obligations. And those are specific to disarmament law, at least in the slightly narrower definition, that is one that prohibits the acquisition, the production, and especially requires the destruction of stockpiles of a particular weapon.
Dominika de Beauffort: Now that we have spoken about the sources, history and definition of international disarmament law. I would like to move onto your book that was published last year, A Guide to International Disarmament Law, which you co-authored with my colleague Tobias Vestner, and the term you coined in this book was “global disarmament treaty” so how you would define a global disarmament treaty and what is the first global disarmament treaty?
Stuart Casey-Maslen: So, a global disarmament treaty is simply one to which any state can become a party. They tend to be adopted, either within the United Nations or at a specific conference. But often the United Nations Secretary General is the depository of the treaty. That means he or she is responsible for deciding whether or not a state that he is actually a state in international law, and today, there are 197 states. According to his definition, the first global disarmament treaty is probably best described as the Biological Weapons Convention, adopted in 1971. It set out a range of obligations, and specifically prohibitions on the acquisition, production of biological weapons and requiring their destruction. A particular feature though, of the Biological Weapons Convention is that unlike the treaties that follow it, it didn't prohibit use. And that was because there was a League of Nations treaty from 1925 that already prohibited the use of biological weapons in international armed conflict.
Dominika de Beauffort: So we can say that the era of global disarmament treaties started 50 years ago, so next year we will celebrate 50 years of the Biological Weapons Convention. This was in 1971, when was the next global disarmament treaty adopted?
Stuart Casey-Maslen: So that the next major treaty of global disarmament law is the Chemical Weapons Convention, adopted in 1992. It is the most widely ratified of all the global disarmament treaties 193 of 197 states, a party to it. And this model, if we can put it that way has been largely what has been followed, subsequently. So, five years later, the Anti-Personnel Mine Ban Convention was adopted. And it took at least in its Article One, the basis of the corresponding obligations under the Chemical Weapons Convention, a prohibition on all use, and a prohibition on development production stockpiling, and transfer. What slightly differs, as we'll talk about more in a minute, is that any use at any time is prohibited in the Anti-Personnel Mine Ban Convention, and in the Convention on Cluster Munitions that followed in 2008. Whereas under the Chemical Weapons Convention, certain uses for law enforcement purposes are still lawful. The most recent of the global disarmament treaties is the 2017 Treaty on the Prohibition of Nuclear Weapons. That's a treaty that's not yet in force. But with 47 of 50 States ratifying it's only a matter of time before it also becomes binding international law.
Ashley Müller: That's all we have now for this episode. Thank you to Dominika de Beauffort and Stuart Casey-Maslen. Tune in to our next episode to hear all the latest insights on international peace and security or head to our website and discover upcoming events, webinars, courses that you can get involved in. Or just stayed tuned and let the next episode start automatically in this playlist. In the meantime, don’t forget to subscribe to us on Apple iTunes, follow us on Spotify and SoundCloud and across all of our social media channels which you can find in the episode description. I’m Ashley Müller with the Geneva Centre for Security Policy, until next time, bye for now!