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The United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, 1981*

Published online by Cambridge University Press:  26 October 2009

Malcolm Shaw
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Extract

It may come as a surprise to many that the international community through the mechanisms and methods of international law should seek to involve itself in the techniques of war-making to the extent that it does. We all accept that international law is deeply concerned with the prevention of the use of armed force and most people are aware, if in a rudimentary fashion, of the categories of aggression, self-defence, use of force to protect nationals and so forth. It would be a cause of great amazement should the rules and techniques of international law not be heavily engaged in constraining as far as possible the impulses of states to resort to the use of force. It is rather different to find international law actually descending to the battlefield, tacitly acknowledging its own failures, and attempting to pontificate on the types of weapons to be used in the destruction of life and property. Or is it? The same general concerns that impel international law to restrain states from using violence against each other are also operative when one considers the methods of warfare, despite the irony.

Type
Research Article
Information
Review of International Studies , Volume 9 , Issue 2 , April 1983 , pp. 109 - 121
Copyright
Copyright © British International Studies Association 1983

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References

1. See, e.g., Brownlie, I., International Law and the Use of Force by States (Oxford, 1963)CrossRefGoogle Scholar; Bowett, D., Self-Defence in International Law (London, 1958)Google Scholar; Stone, J., Aggression and World Order (London, 1958)Google Scholar; McDougal, M. and Feliciano, F., Law and Minimum World Public Order (New Haven, 1961).Google Scholar

2. Bailey, S., Prohibitions and Restraints in War (London, 1972)Google Scholar and Best, G., Humanity in Warfare (London, 1980).Google Scholar

3. The text of this Convention, Convention (IV) Respecting the Laws and Customs of War on Land, may be found in Schindler, D. and Toman, J., The Laws of Armed Conflicts, 2nd ed. (Netherlands, 1981), pp. 63–92Google Scholar. See also Roberts, A. and Guelff, R., Documents on the Laws of War, (Oxford, 1982), pp. 43–59.Google Scholar

4. See generally, Shaw, M., International Law (London, 1977)Google Scholar, chapters 1 and 2 and Henkin, L., How Nations Behave, 2nd ed. (Columbia, 1979)Google Scholar, Part I.

5. Schindler and Toman, op. cit, pp. 3-23. See also Roberts and Guelff, op. cit, pp. 1-9.

6. Ibid., pp. 25-34. Delegates from 15 European states meeting on the initiative of the Russian Tsar examined the draft prepared by the Russian government, essentially adopting it. The draft international agreement was not, however, ratified, although it clearly influenced the important Hague Agreements of 1899 and 1907 noted below.

7. Schindler and Toman, op. cit!, pp. 95-7. This agreement can be traced back to the invention in Russia in 1863 of a bullet that would explode on contact with a hard surface. This was extended to cover soft surfaces in 1867. The principle of the St Petersburg Declaration was reiterated in later international agreements. Nineteen states either signed or acceded to the Declaration. See also Roberts and Guelff, op. cit., pp. 29-33.

8. Shaw, op. cit., chapter 11.

9. See Akehurst, ‘Custom as a Source of International Law’, British Yearbook of International Law, XLVII (1974-5), p. 1, especially at pp. 42-52. See also D’Amato, A., The Concept of Custom in International Law (Ithaca, 1971)Google Scholar, chapter 5.

10. See, e.g., American Journal of International Law, XLI (1947), pp. 248-9. See also Roberts and Guelff, op. cit., pp. 153-6.

11. See also the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological Weapons, 1972.

12. As far as atomic weapons are concerned, it is generally agreed that they are not per se illegal. General Assembly resolution 1653 of 1961 declared that the use of nuclear and thermo-nuclear weapons was contrary to the spirit, letter and aims of the United Nations and thus would directly violate the UN Charter. However, this resolution was opposed by the Western powers and remains of recommendatory value alone. See also the Shimoda case, Japanese Annual of International Law, VI (1964), p. 212 and Stone, Legal Controls of International Conflict (London, 1959), pp. 342-8. There are a number of international agreements dealing with nuclear weapons, e.g. Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under the Water, 1963; Treaty on the Non-Proliferation of Nuclear Weapons, 1968, and the Treat y on the Prohibition on the Emplacement of Nuclear Weapons and the Weapons of Mass Destruction on the Seabed, 1971. See also Roberts and Guelff, op. cit., p. 139 and p. 462.

13. It should be noted, however, that the International Committee of the Red Cross had produced Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare in 1955, making reference to chemical, bacteriological, radiological an d incendiary weapons, see F. Kalshoven, The Conference of Government Experts on the Use of Certain Conventional Weapons, Lucerne, 24 September-18 October 1974’, Netherlands Yearbook of International Law, VI (1975), p. 77.

14. Kalshoven, ‘Conference of Government Experts I’ op. cit., pp. 79-82, and Ibid., The Conference of Government Experts on the Use of Certain Conventional Weapons, Second Session, Lugano, 28 January-26 February 1976’ Netherlands Yearbook of International Law, VII (1976), p. 197.

15. Schindler and Toman, op. cit., pp. 551-650. See also Kalshoven, ‘Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974-1977’, Netherlands Yearbook of International Law, Part I, VIII, (1977), p. 107 and Part II, Ibid., IX (1978), p. 107.

16. See Documents CDDH/47/Rev. 1; CDDH/IV SR 1-7; CDDH/220/Rev. 1; CDDH/IV/SR.8-21; CDDH/IV/237/Rev. 1; CDDH/IV/SR.22-35; CDDH/408/Rev. 1; CDDH/IV/SR.3-42.

17. A/CONF.95/15, Annex I. See Schindler and Toman, op. cit., pp. 535-650.

18. See also the Fundamental Rules of International Humanitarian Law Applicable in Armed Conflicts prepared by a group of experts from the International Committee of the Red Cross, the League of Red Cross Societies and National Red Cross Societies and published in 1978, see International Review of the Red Cross, (September-October 1978), pp. 248-9, and Roberts and Guelff, op. cit., pp. 465-6.

19. See generally Meyrowitz, ‘La Guerilla et le Droit de la Guerre’, Revue Beige de Droit International, VII (1971), p. 56; Sagay, ‘The Legal Status of Freedom Fighters in Africa’, Eastern Africa Law Review, VI (1973) p. 15; Ronzitti, ‘Wars of National Liberation and the Laws of War’, Annales of International Studies, II (1972), p. 93; and Draper ‘The Status of Combatants and the Question of Guerilla Warfare’, British Yearbook of International Law, XVL (1971), p. 173.

20. See generally Robblee, P., ‘The Legitimacy of Modern Conventional Weaponry’, Military Law Review, Ixxi (1976), p. 95Google Scholar; Cassese, A., ‘Weapons Causing Unnecessary Suffering: Are They Prohibited?’, Rivista di Diritto Internazionale, Iviii (1975), p. 12Google Scholar; Ibid., ‘Means of Warfare: The Present and Emerging Law’, Revue Beige de Droit International, xii (1976), p. 143 and Paust, J., ‘Does Your Police Force Use Illegal Weapons?’, Harvard International Law Journal, xviii (1977), p. 19.Google Scholar

21. See Report of the Conference (Geneva, 1975), paras. 24-7 and Karlshoven, F., ‘Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974-1977’. Part II, Netherlands Yearbook of International Law, ix (1978), p. 107 and p. 151.CrossRefGoogle Scholar

22. A. F. Pamphlet, 110-31, chapter 6, para. 6-3(b)2.

23. Department of the Army Field Manual, The Law of Land Warfare, FM 27-10, Dept. of the Army, July 1956, p. 18.

24. The Law of War on Land, Being Part HI of the Manual of Military Law, (London, 1958), p. 41.

25. See CDDH/III/237; CDDH/III/SR.26 para. 8 and CDDH/III/SR.38 paras. 7 and 51.

26. In Part III, Section I entitled ‘Methods and Means of Warfare’.

27. In Part IV entitled ‘Civilian Population’, chapter III subtitled ‘Civilian Objects’.

28. See CDDH/I/SR.2-6, pp. 7-49 and pp. 97-113.

29. CDDH/408/Rev. 1, pp. 22-3 and Appendix I.

30. A/CONF.95/3, Annex I, p. 12.

31. CDDH/IV/SR.13, pp. 63-70; CDDH/IV/SR.14, pp. 71-7.; CDDH/IV/SR.28, pp.71-3; CDDH/IV/SR.29, pp.75-85; CDDH/IV/SR.30, pp. 87-91 and CDDH/408/Rev. 1, pp. 23-8. See also Robblee, op. cit., pp. 142-4.

32. A/CONF.95/8, pp.9 and 17-24.

33. A/8803 (1972).

34. CDDH/IV/SR.8, pp. 10-12; CDDH/IV/SR.9, pp. 23-30; CDDH/IV/SR.10, pp. 31-43; CDDH/IV/SR.ll, pp. 45-50; CDDH/IV/SR.25, pp. 41-2; CDDH/IV/SR.26, pp. 43-54; CDDH/IV/SR.27, pp. 55-64; CDDH/IV/SR.28, pp. 65-70; CDDH/IV/SR.32, pp. 118-19 and CDDH/408/Rev. 1, pp. 28-31.

35. A/CONF.95/8, pp. 10 and 25-34. See also Robblee op. cit., pp. 128-33. Note that under the 1923 Hague Draft Rules, of Aerial Warfare, article 18, the use of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited, see Roberts and Guelff, op. cit., p. 125.

36. A/CONF.95/8, p. 51 and A/CONF.95/3, Annex I, pp. 2-6. See also UN General Assembly resolution 32/152 ref 19 December 1977.

37. Report no. D 1299 b/2. See Robblee, op. cit., pp. 134-8 and Paust, op. cit., pp. 31-7.

38. CDDH/IV/SR.15, pp. 79-91; CDDH/IV/SR. 16, pp. 93-101; CDDH/IV/SR.33, pp. 121-7 and CDDH/408/Rev. 1, pp. 11-13 and 31.

39. CDDH/IV/SR.32, p. 120.