Chapter 1 – Theoretical Framework
2. International Law and Disarmament
2.1. Sources of Disarmament Law
2.1.3. The UN Charter and the Law on the Use of Force
The UN Charter does not impose disarmament obligations, which can be explained by the fact that its negotiators of did not intend for it to serve as a legal framework for disarmament.137 The only two mentions of disarmament in Articles 11 and 47, UN Charter relate to the maintenance of international peace and security.138 Rather than calling for disarmament, it
135 ILC, ‘Formation and Evidence of Customary International Law’, Memorandum by the Secretariat, 65th session, 14 March 2013, (A/CN.4/659): 9 (Observation 2), 10 (Observation 3), 13 (Observation 6).
136 Ibid: 17 (Observation 9), 18 (Observation 8).
137 Leland Godrich, Edvard Hambro, Anne Simons, Charter of the United Nations: Commentary and Documents, 3rd ed, (Columbia University Press, 1969) 212.
138 Article 11, para 1: ‘The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both.’; Article 47, para 1: ‘There shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.’
Article 47, para 1: ‘There shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.’
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treats it as a means of preventing armed conflicts where possible and restricting the use of force when it occurs.139
In other words, it recognises that the accomplishment of the UN’s central goal to maintain peace and to prevent war can in some cases require the use of armed force.140 Conversely, disarmament measures targeting those weapons whose degree of destructiveness goes beyond what is required for the enforcement of peace and the maintenance of security – in particular unconventional weapons – are in line with the Charter’s goals.141
Nevertheless, the Charter plays an important role for disarmament, as it charged the General Assembly and the Security Council with the task of dealing with disarmament. Indeed,
‘disarmament [has become] part of the very identity of the United Nations as an institution.’142
2.2. The Law on Disarmament within a Fragmented International Legal Order 2.1.1. The Existence of a ‘Special’ Disarmament Law
In an expanding and diversifying international normative system, ‘the allocation of authority within a complex system of legal prescriptions’ becomes necessary.143 Such a distribution of authority is not straightforward in the decentralised international legal system. International law has developed mostly horizontally and does not manifest a clear hierarchy of norms.144 The fragmentation of international law through the emergence of specialised sets of rules
139 See ICRC, ‘International Humanitarian Law: Answers to Your Questions’, 22 January 2015, 8-10: on the distinction between jus ad bellum (‘conditions under which States may resort to (…) the use of armed force) and jus in bello (‘conduct of parties engaged in armed conflict’).
140 See Article 2 (4) and Articles 42, 46, 47 UN Charter.
141 See for example the Preamble of the BWC: ‘desiring (…) also to contribute to the realisation of the purposes and principles of the Charter of the United Nations’
142 Randy Rydell, ‘Explaining Hammarskjöld’s “Hardy Perennial” - The Role of the United Nations in Nuclear Disarmament’ (UNA-UK, 2013) 5; Inis Claude, The Changing United Nations (Random House, 1964) 7: ‘The assertion that disarmament is the key to peace and that its promotion is the foremost task of the world organisation has become a central tenet of the orthodox ideology of the United Nations speech-making and resolution-drafting.’
143 Bruno Simma, Dirk Pulkowski, ‘Of Planets and the Universe: Self-contained Regimes in International Law’ Vol 17 (3), (EJIL, 2006) 483.
144 With the exception of obligations erga omnes and norms jus cogens, see Article 53, VCLT and ILC Report on Fragmentation (fn 120), 181, paras 361 – 379 (norms jus cogens); 193, paras 380 - 409 (obligations erga omnes).
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which claim autonomy from general international law has led to normative conflicts which can cause legal uncertainty.
The International Law Commission (ILC) identified four types of conflicts between norms which can contribute to the fragmentation of international law, among which the relationship between special law and general international law appears to be the most relevant.145 Given their role in inducing highly technical state behaviour, the normative content of disarmament regimes is very specialised, accounting for the scientific, technical and political processes necessary for disarmament.146 Disarmament treaties contain ‘tailor-made’ rules which don’t exist under general international law, such as rules on verification, on the legal consequences of breaches and procedures of dispute settlement.
Conflicts between special and general international law are addressed by the doctrine of lex specialis derogat lex generali and the doctrine of self-contained regimes. Both serve as a means of determining whether the special set of rules overrides general international law in a given issue-area. The doctrine of lex specialis is grounded in the idea that special rules are better adapted to the subject area and therefore more effective.147 Self-contained regimes have been viewed as the strongest form of lex specialis.148 In general terms, self-contained claim the priority of their secondary rules over the secondary rules which exist under general international law.149 For instance, regimes which create their own rules and mechanisms for managing compliance and dealing with breaches are less likely to resort to formal dispute settlement.150
Disarmament regimes, although equipped with specialised rules, mechanisms and institutions, have not gained sufficient normative autonomy to be qualified as a distinct body of ‘disarmament law’. They continue to rely on general international law, such as norms of
145 ILC Report on Fragmentation (fn 120) 15 - 16, para 18: special and general law, prior and subsequent law, laws at different hierarchical levels, relations of law to its normative environment generally.
146 Vera Gowlland-Debbas, (fn 122) 600; Friedrich Kratochwill, John Ruggie, (fn 88) 759.
147 This has been expressed by Hugo Grotius in De Jure Belli ac Pacis. Libri Tres, Book II Section XXIX: ‘Among agreements which are equal…that should be given preference which is most specific and approaches most nearly to the subject in hand, for special provisions are ordinarily more effective than those that are general.’
148 Draft Articles on State Responsibility, Commentary on Article 55, para. 2 in Official Records of the General Assembly, 53rd Session, Supplement No. 10 (A/56/10) 140, para 5; see also S.S. Wimbledon’, PJIJ, Series A, 1923, No 1, 23–24; United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 40 Bruno Simma, ‘Self-Contained Regimes’, Vol 16 (NYIL, 1985) 111.
149 ILC Report on Fragmentation (fn 120) 66, paras 124, 128.
150 Ibid, 73, para 137.
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international humanitarian law, the VCLT and the UN Charter, in particular for the enforcement of compliance by the Security Council. Therefore, general rules will remain relevant and applicable to the extent that special rules are unavailable or ineffective. ‘If the rules and procedures of special systems fail, a fall-back on general international law, including resort to countermeasures, is justified.’151 ‘
Hence, they may be conceived as lex specialis only as an expression or elaboration of general international law, rather than an exception to it. This implies that in such an absence of a normative conflict, the regime’s special rules are applied simultaneously with the general rules under international law and do not further its fragmentation.152