International Weapons Law
Week 1
Introduction, General Principles, Article 36 Review
Reading:
William H. Boothby, Weapons and the Laws of Armed Conflict, Oxford University
Press, 2016 (link Links to an external site.to the e-book in the University Library),
Chapters 1, 2, 5 and 6 (those of you lacking an international law background should
also read Chapter 3).
International Committee of the Red Cross Geneva, A Guide to the Legal Review of
New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of
Additional Protocol I of 1977, January 2006, on Canvas (module for this week).
Questions and indications:
Read the chapters by Boothby and think about the following: What is the difference
between the law of targeting and weapons law? Can you describe the difference
between weapons law and arms control law? Then go through the ICRC Guide. Is
there an international law obligation to conduct legal reviews of weapons that are used
in situations that do not amount to armed conflict? What are the key questions to be
addressed when states are carrying out a review of new weapons?
Chapter 1 Boothby – Introduction
The focus of international law is limiting harmful effects of war. Ensuring that conflicts
adhere to basic humanitarian standards. The law of weaponry tries to ensure that in the heat of
battle, the implements of war that are used to cause harm to comply with certain
internationally recognized norms.
This book concerns itself with the law relating to weaponry, many of the rules form part of a
wider body of law that regulates the use of military force in conflicts. mostly referred to as:
the law of armed conflict.
Law relating to weapons, method and means of warfare centered on treaties negotiated in the
Hague and came to be known as Hague Law. Legal rules that protected victims of armed
conflicts were adopted in Geneva and came to be known as Geneva Law.
Another division in the law applicable during an armed conflict is the distinction between the
law applied in international armed conflicts and that which applies during non-international
armed conflicts.
Much of the law of weaponry forms part of the law of armed conflict. Some elements of
weapons law can more accurately be categorized in arms control treaties. This is mostly about
controls over the production and transfer for example. Examples of arms control treaties:
1993 Chemical Weapons Convention the 1972 Biological Weapons Convention and the 1997
Ottawa Convention on anti personnel mines.
Weapons law essentially prohibits certain weapons or associated technologies and restricts the
circumstances in which other weapons or technologies may lawfully be used. Weapons or
technologies to which these prohibitions or restrictions do not apply may lawfully be used in
armed conflict.
,The law that applies once an armed conflict is taking place which is sometimes referred to as
jus in bello. The different body of law that determines the lawfulness of resorting to the use of
force in the first place, often called jus ad bellum. The law on resorting to the use of force is
based on the Charter of the United Nations.
Whether something is a weapon: the term connotes an offensive capability that can be applied
to a military object or enemy combatant. Usually causing injury or damage to an adverse
party to an armed conflict. Means of warfare refers to all weapons, weapons platforms, and
associated equipment used directly to deliver force during hostilities. Methods of warfare on
the other hand, are taken to mean the general categories of operations, such as bombardment
or blockade, and can refer to particular tactics, such as high altitude bombing or siege. A
siege is a military tactic where forces surround a city, fortress, or other fortified location,
cutting off essential supplies and preventing people from entering or leaving.
On 2 April 2023 the UN general assembly adopted the UN Arms Trade treaty which entered
into force on 24 December 2014. The treaty applies to battle tanks, large caliber artillery
systems, armored combat vehicles, combat aircraft, attack helicopters, warships, missiles,
missile launchers, small arms and light weapons. States party must establish and maintain a
national control system to regulate the export of ammunition fired, launched or delivered by
such weapons and to control export of parts that can enable the assembly of such arms.
Transfers of such arms, ammunition, or parts are prohibited if they would breach obligations
under Chapter VII of the UN Charter or other international obligations or if the State is aware
at the time of authorization that the arms or items would be used to commit genocide, crimes
against humanity, grave breaches of the 1949 Geneva Conventions, attacks directed against
protected civilians or civilian objects, or other war crimes.
Chapter 2: The evolution of the Law of Weaponry
Earliest weapons of law: Hindu Code of Manu, Koina Nomina.
In early centuries there was mostly a wide acception of what proper behaviour was and that
poison should not be used. The origins of the modern law date from the middle of the
nineteenth century.
Lieber code
In 1861 Dr. Lieber made a statement with the existing laws of land warfare. So that these
rules could be applied during the American Civil War. He described necessity as measures
which are indispensable for securing the ends of the war and which are lawful according to
the modern law and usages of war. It does not permit of cruelty and the use of posion. This
was the start of the unnecessary suffering and we notice the repetition of the established
prohibition on poisons.
St Petersburg Declaration 1868
Early formulation of the notion of military necessity. The technical ‘limits at which the
necessities of war ought to yield the requirements of humanity’. It also contains an early
provision of the principle of superfluous injury and unnecessary suffering. It is tying itself to
the laws of humanity.
Brussels Declaration 1874 and Oxford Manual 1880
,Neither document was a treaty but rather a basis for national legislation. The brussels
declaration addressed a number of international law issues including the means of injuring the
enemy. The Oxford manual restated that the only legitimate end that states may have in war is
to weaken the military strength of the enemy. It is forbidden to make use of poison, to employ
arms or material that cause superfluous suffering or to aggrevate wounds.
Hague Peace Conference 1899
Primary to limit armanents. There was a concern of the impact of various technical
developments on warfare.
Hague Peace Conference 1907 and the Martens Clause
Until a more complete code of the laws of war has been issued, the High Contracting Parties
deem it expedient to declare that, in cases not included in the Regulations adopted by them,
the inhabitants and the belligerents remain under the protection and the rule of the principles
of the law of nations, as they result from the usages established among civilized peoples, from
the laws of humanity, and the dictates of the public conscience. It fills gaps in international
humanitarian law by ensuring that even when there is no specific law on a matter, actions are
still governed by overarching principles of humanity and justice.
this is the Martens Clause. In addition to treaties adopted by states, international law also
comprises customary law. There is an additional element here: the dictates of the public
conscience.
Early Air warfare Legal Texts
Efforts were made to regulate the use of new military technology in response to military
aviation. The declaration 1 of the 1899 Hague Conference reference to ‘other methods of a
similar nature’ reflects the difficulty of drafting precise regulations for technologies that are
advancing quickly.
Later on it was replaced by Hague Declaration XIV of 1907 which more directly prohibited
‘’the discharge of projectiles and explosives from balloons’.
All the attempts highlight the challenge of aligning older humanitarian principles with new
military realities.
Conventional Weapons Convention 1980
It has positively contributed to the development of the law of weaponry. In chapter 9, this
topic is more addressed.
Chapter 3: Components of the International Law of Weaponry
The international law of weaponry forms part of the international law of armed conflict. That
is a subdivision of wider public international law. The rules that make up the international law
of weaponry are therefore the same as the rules and principles that govern the formation and
interpretation of public international law in general.
The two major sources of the law, customary law and treaties. sometimes being referred to
as conventional law.
Customary law
, The nature and status of custom as a source of the law are confirmed by article 38(1)(b) of the
Statute of the International Court of Justice (ICJ), which defines the law to be applied by the
court as including ‘international custom, as evidence of a general practice accepted as law.
It relies on two main elements:
1. State practice; the actual behavior of states and consistency in this behavior
across many states helps establish what is considered a general practice.
2. Opinio juris: the belief by states that they are legally obliged to act in a certain
way, not just out of convenience or habit.
States are the main actors in creating and shaping customary law, the actions of non-state
actors, like NGOs, they don’t create customary law; only the behaviors and practices of states
can do so. This reliance on state practice means that customary law evolves with the conduct
of states. While NGOs may advocate for changes, customary law depends on states actual
behavior, which ultimately determines whether a practice becomes a binding international
norm.
The determination of the existence of a customary rule
The practice that is said to be customary law does not have to be universal or unanimous
among states. Whether the practice is sufficiently extensive or wide and convincing, is whats
important. If a customary rule does emerge despite the objection of a state, the state can avoid
being bound by the rule provided its objections are properly expressed when the opportunity
presents itself and provided those objections are consistently maintained. Also, when a
general state practice develops that is contrary to an existing customary rule, that rule will be
extinguished thereby. Opinio juris, to contribute to the founding of a rule of custom, must
amount to a general recognition among States that the conduct in question is guided by a legal
obligation.
Treaty rules achieving customary status
‘’ An indispensable requirement would be that within the period in question, short though it
might be, State practice, including that of States whose interests are specially affected, should
have been both extensive and virtually uniform in the sense of the provisions invoked, and
should moreover have occurred in such a way as to show a general recognition that a rule of
law of legal obligation is involved.’’ – ICJ
A similar line was taken by the ICJ in the Nicaragua Case where it was stated ‘for a new
customary rule to be formed, not only must the acts concerned ‘’amount to a settled practice’,
but they must be accompanied by the opinion juris.’
It is only by examining the conduct of States that are not party to the treaty in question that a
proper determination can be made as to whether a customary rule has emerged.
The effects of customary rules
No state has the right to decline to comply with a customary rule. States may, however,
decline to follow rules in treaties to which they are not party and which have not achieved
customary status. Customary rules are highly significant sources of the law because they and
all states, irrespective of whether a particular State is a party to a specific treaty. The
determination of what the customary legal rules are and how they should be expressed are
therefore matters of utmost legal significance of not a little controversy.
Week 1
Introduction, General Principles, Article 36 Review
Reading:
William H. Boothby, Weapons and the Laws of Armed Conflict, Oxford University
Press, 2016 (link Links to an external site.to the e-book in the University Library),
Chapters 1, 2, 5 and 6 (those of you lacking an international law background should
also read Chapter 3).
International Committee of the Red Cross Geneva, A Guide to the Legal Review of
New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of
Additional Protocol I of 1977, January 2006, on Canvas (module for this week).
Questions and indications:
Read the chapters by Boothby and think about the following: What is the difference
between the law of targeting and weapons law? Can you describe the difference
between weapons law and arms control law? Then go through the ICRC Guide. Is
there an international law obligation to conduct legal reviews of weapons that are used
in situations that do not amount to armed conflict? What are the key questions to be
addressed when states are carrying out a review of new weapons?
Chapter 1 Boothby – Introduction
The focus of international law is limiting harmful effects of war. Ensuring that conflicts
adhere to basic humanitarian standards. The law of weaponry tries to ensure that in the heat of
battle, the implements of war that are used to cause harm to comply with certain
internationally recognized norms.
This book concerns itself with the law relating to weaponry, many of the rules form part of a
wider body of law that regulates the use of military force in conflicts. mostly referred to as:
the law of armed conflict.
Law relating to weapons, method and means of warfare centered on treaties negotiated in the
Hague and came to be known as Hague Law. Legal rules that protected victims of armed
conflicts were adopted in Geneva and came to be known as Geneva Law.
Another division in the law applicable during an armed conflict is the distinction between the
law applied in international armed conflicts and that which applies during non-international
armed conflicts.
Much of the law of weaponry forms part of the law of armed conflict. Some elements of
weapons law can more accurately be categorized in arms control treaties. This is mostly about
controls over the production and transfer for example. Examples of arms control treaties:
1993 Chemical Weapons Convention the 1972 Biological Weapons Convention and the 1997
Ottawa Convention on anti personnel mines.
Weapons law essentially prohibits certain weapons or associated technologies and restricts the
circumstances in which other weapons or technologies may lawfully be used. Weapons or
technologies to which these prohibitions or restrictions do not apply may lawfully be used in
armed conflict.
,The law that applies once an armed conflict is taking place which is sometimes referred to as
jus in bello. The different body of law that determines the lawfulness of resorting to the use of
force in the first place, often called jus ad bellum. The law on resorting to the use of force is
based on the Charter of the United Nations.
Whether something is a weapon: the term connotes an offensive capability that can be applied
to a military object or enemy combatant. Usually causing injury or damage to an adverse
party to an armed conflict. Means of warfare refers to all weapons, weapons platforms, and
associated equipment used directly to deliver force during hostilities. Methods of warfare on
the other hand, are taken to mean the general categories of operations, such as bombardment
or blockade, and can refer to particular tactics, such as high altitude bombing or siege. A
siege is a military tactic where forces surround a city, fortress, or other fortified location,
cutting off essential supplies and preventing people from entering or leaving.
On 2 April 2023 the UN general assembly adopted the UN Arms Trade treaty which entered
into force on 24 December 2014. The treaty applies to battle tanks, large caliber artillery
systems, armored combat vehicles, combat aircraft, attack helicopters, warships, missiles,
missile launchers, small arms and light weapons. States party must establish and maintain a
national control system to regulate the export of ammunition fired, launched or delivered by
such weapons and to control export of parts that can enable the assembly of such arms.
Transfers of such arms, ammunition, or parts are prohibited if they would breach obligations
under Chapter VII of the UN Charter or other international obligations or if the State is aware
at the time of authorization that the arms or items would be used to commit genocide, crimes
against humanity, grave breaches of the 1949 Geneva Conventions, attacks directed against
protected civilians or civilian objects, or other war crimes.
Chapter 2: The evolution of the Law of Weaponry
Earliest weapons of law: Hindu Code of Manu, Koina Nomina.
In early centuries there was mostly a wide acception of what proper behaviour was and that
poison should not be used. The origins of the modern law date from the middle of the
nineteenth century.
Lieber code
In 1861 Dr. Lieber made a statement with the existing laws of land warfare. So that these
rules could be applied during the American Civil War. He described necessity as measures
which are indispensable for securing the ends of the war and which are lawful according to
the modern law and usages of war. It does not permit of cruelty and the use of posion. This
was the start of the unnecessary suffering and we notice the repetition of the established
prohibition on poisons.
St Petersburg Declaration 1868
Early formulation of the notion of military necessity. The technical ‘limits at which the
necessities of war ought to yield the requirements of humanity’. It also contains an early
provision of the principle of superfluous injury and unnecessary suffering. It is tying itself to
the laws of humanity.
Brussels Declaration 1874 and Oxford Manual 1880
,Neither document was a treaty but rather a basis for national legislation. The brussels
declaration addressed a number of international law issues including the means of injuring the
enemy. The Oxford manual restated that the only legitimate end that states may have in war is
to weaken the military strength of the enemy. It is forbidden to make use of poison, to employ
arms or material that cause superfluous suffering or to aggrevate wounds.
Hague Peace Conference 1899
Primary to limit armanents. There was a concern of the impact of various technical
developments on warfare.
Hague Peace Conference 1907 and the Martens Clause
Until a more complete code of the laws of war has been issued, the High Contracting Parties
deem it expedient to declare that, in cases not included in the Regulations adopted by them,
the inhabitants and the belligerents remain under the protection and the rule of the principles
of the law of nations, as they result from the usages established among civilized peoples, from
the laws of humanity, and the dictates of the public conscience. It fills gaps in international
humanitarian law by ensuring that even when there is no specific law on a matter, actions are
still governed by overarching principles of humanity and justice.
this is the Martens Clause. In addition to treaties adopted by states, international law also
comprises customary law. There is an additional element here: the dictates of the public
conscience.
Early Air warfare Legal Texts
Efforts were made to regulate the use of new military technology in response to military
aviation. The declaration 1 of the 1899 Hague Conference reference to ‘other methods of a
similar nature’ reflects the difficulty of drafting precise regulations for technologies that are
advancing quickly.
Later on it was replaced by Hague Declaration XIV of 1907 which more directly prohibited
‘’the discharge of projectiles and explosives from balloons’.
All the attempts highlight the challenge of aligning older humanitarian principles with new
military realities.
Conventional Weapons Convention 1980
It has positively contributed to the development of the law of weaponry. In chapter 9, this
topic is more addressed.
Chapter 3: Components of the International Law of Weaponry
The international law of weaponry forms part of the international law of armed conflict. That
is a subdivision of wider public international law. The rules that make up the international law
of weaponry are therefore the same as the rules and principles that govern the formation and
interpretation of public international law in general.
The two major sources of the law, customary law and treaties. sometimes being referred to
as conventional law.
Customary law
, The nature and status of custom as a source of the law are confirmed by article 38(1)(b) of the
Statute of the International Court of Justice (ICJ), which defines the law to be applied by the
court as including ‘international custom, as evidence of a general practice accepted as law.
It relies on two main elements:
1. State practice; the actual behavior of states and consistency in this behavior
across many states helps establish what is considered a general practice.
2. Opinio juris: the belief by states that they are legally obliged to act in a certain
way, not just out of convenience or habit.
States are the main actors in creating and shaping customary law, the actions of non-state
actors, like NGOs, they don’t create customary law; only the behaviors and practices of states
can do so. This reliance on state practice means that customary law evolves with the conduct
of states. While NGOs may advocate for changes, customary law depends on states actual
behavior, which ultimately determines whether a practice becomes a binding international
norm.
The determination of the existence of a customary rule
The practice that is said to be customary law does not have to be universal or unanimous
among states. Whether the practice is sufficiently extensive or wide and convincing, is whats
important. If a customary rule does emerge despite the objection of a state, the state can avoid
being bound by the rule provided its objections are properly expressed when the opportunity
presents itself and provided those objections are consistently maintained. Also, when a
general state practice develops that is contrary to an existing customary rule, that rule will be
extinguished thereby. Opinio juris, to contribute to the founding of a rule of custom, must
amount to a general recognition among States that the conduct in question is guided by a legal
obligation.
Treaty rules achieving customary status
‘’ An indispensable requirement would be that within the period in question, short though it
might be, State practice, including that of States whose interests are specially affected, should
have been both extensive and virtually uniform in the sense of the provisions invoked, and
should moreover have occurred in such a way as to show a general recognition that a rule of
law of legal obligation is involved.’’ – ICJ
A similar line was taken by the ICJ in the Nicaragua Case where it was stated ‘for a new
customary rule to be formed, not only must the acts concerned ‘’amount to a settled practice’,
but they must be accompanied by the opinion juris.’
It is only by examining the conduct of States that are not party to the treaty in question that a
proper determination can be made as to whether a customary rule has emerged.
The effects of customary rules
No state has the right to decline to comply with a customary rule. States may, however,
decline to follow rules in treaties to which they are not party and which have not achieved
customary status. Customary rules are highly significant sources of the law because they and
all states, irrespective of whether a particular State is a party to a specific treaty. The
determination of what the customary legal rules are and how they should be expressed are
therefore matters of utmost legal significance of not a little controversy.
