Issue areas

The texts examined for this study deal with a range of issues: from the handling of dangerous goods and the stockpiling of ammunition, over the production, possession and use of weapons by various actors, to arms control, non-proliferation and disarmament. In order to allow the identification of patterns in the regulation of explosive weapons within and across issue areas, international texts that are generally considered to

belong to the same “rule-complex” or “regime” and deal with the same subject matter were grouped by “issue area”:⁵⁵

1. Arms control

1.1 Arms control (general): This group includes texts that are mainly concerned with the possession and transfer of conventional arms, military technology or equipment, munitions, and heavy or major weapons.

1.2. Arms control (SALW): These texts predominantly seek to regulate the production, possession, transfer, (and sometimes the right to use, but not the modalities of use) of firearms, small arms and light weapons.

2. Law enforcement/human rights: Texts in this group reflect standards on law enforcement, including rules on the use of force and firearms and relevant human rights standards. In graphs, this area is, at times, labelled “human rights” for space reasons.

3. Protection of civilians/conduct of hostilities: This group includes texts that govern the use of weapons, means or methods of warfare in the conduct of hostilities (during an armed conflict), and standards on the protection of civilians from the effects of hostilities. For the sake of brevity, this issue area is labelled “humanitarian law” in graphs. It is important to note that texts in this area may reflect or apply rules of IHL, but not all of them are IHL instruments, strictly speaking.⁵⁶

55 A regime can be defined as a set of explicit or implicit principles, norms, rules and decision-making procedures around which actor expectations converge in a given issue area. See Stephen D. Krasner, International regimes, Cornell studies in political economy, Cornell University Press, 1983, p. 2. As Koskenniemi notes in relation to the framgentation of international law, “the increasing specialization of parts of society and the related autonomization of those parts” has been “accompanied by the emergence of specialized and (relatively) autonomous rules or rule-complexes, legal institutions and spheres of legal practice”. “Each rule-complex or ‘regime’ comes with its own principles, its own form of expertise and its own ‘ethos’”. General Assembly, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission Finalized by Martti Koskenniemi, UN document A/CN.4/L.682, 13 April 2006, paras. 7–8, 15.

56 Security Council, [On targeted sanctions against individuals meeting the criteria set out in resolution 1572 (2004) on arms embargo against Côte d’Ivoire], UN

4. Safety

4.1. Safety (dangerous goods): Texts in this group aim mainly at the prevention and mitigation of accidents during the production, storage or transport of hazardous chemicals or dangerous goods (including explosives). This area is labelled “safety (DG)” in some graphs and tables.

4.2. Safety (explosive ordnance): This area groups together texts that are mainly concerned with the prevention of accidents in the stockpiling of conventional ammunition and accidents involving unexploded ordnance (UXO) or explosive remnants of war (ERW). This area is labelled “safety (EO)” in some graphs and tables.

5. Terrorism

5.1. Terrorism (explosives): Under this heading fall texts that seek to prevent or punish the use of explosives in terrorist acts, including by restricting access to explosive materials.

5.2. Terrorism (MANPADS): Texts in this group aim to restrict access to man-portable air defence systems.

An international text was assigned to one of the eight issue areas on the basis of its stated object and purpose and the items and activities within its scope.⁵⁷ A clear example is the European Convention on Human Rights, which was assigned to the issue area “human rights” on the basis of its subject matter. Admittedly, some texts could be assigned to more than one area. Characterizations of rule-complexes as “human rights”

or “humanitarian law” have no normative value per se. “They are only informal labels that describe the instruments from the perspective of different interests or different policy objectives”.⁵⁸ “Weapon treaties”,

document S/RES/1975, 30 March 2011, for instance, is assigned to this issue area. Its paragraph 6 reflects a standard on the protection of civilians and the conduct of hostilities by authorizing the peacekeeping mission “to use all necessary means to carry out its mandate to protect civilians ... , including to prevent the use of heavy weapons against the civilian population”. Case-law of the ICTY and legally non-binding texts like the Program on Humanitarian Policy and Conflict Research at Harvard University, Manual on International Law Applicable to Air and Missile Warfare, 15 May 2009, are other examples.

57 The list of international texts by issue area is provided in the annex.

58 General Assembly, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study

such as the Convention on Certain Conventional Weapons (CCW) or the Convention on Cluster Munitions (CCM), can be considered arms control instruments in that they restrict or prohibit the production or transfer of weapons. This report assigns them to the area “protection of civilians/conduct of hostilities” because the rationale for restrictions or prohibitions placed on these weapon technologies lies in the prevention of humanitarian harm from the use of these weapons.⁵⁹ Conversely, texts reflecting standards on ERW could very well be discussed in relation to the protection of civilians. However, this report deals with them under the heading “safety (explosive ordnance)” because—like instruments on ammunition stockpile management—they first and foremost aim to prevent accidental explosions, whereas instruments focusing on the protection of civilians are more concerned with the use, that is, the intentional detonation, of explosive weapons. Finally, MANPADS could be included in the issue-area “arms control (SALW)” or “arms control (general)”, but as states tend to single out this weapon technology in relation to the prevention of terrorism, they form a separate category in this report.

Figure 2 below shows the distribution of international texts by issue area:

over one third of all international texts fall within the area “protection of civilians/conduct of hostilities” (labelled “humanitarian law”), almost another third falls within arms control (general and SALW), and 15% of texts relate to law enforcement and human rights (labelled “human rights”).⁶⁰

Group of the International Law Commission Finalized by Martti Koskenniemi, UN document A/CN.4/L.682, 13 April 2006, para. 21.

59 For a discussion of the overlap between humanitarian law and arms control, see Ove Bring, “Regulating Conventional Weapons in the Future. Humanitarian Law or Arms Control?”, Journal of Peace Research, vol. 24, no. 3, pp. 275–286, September 1987; K.S. Carter, “New Crimes against Peace? The Application of International Humanitarian Law Compliance and Enforcement Mechanisms to Arms Control and Disarmament Treaties”, in Treaty compliance: Some Concerns and Remedies, Canadian Council on International Law and The Markland Group (eds), Kluwer Law International, 1998.

60 A bit over 11% of texts relate to terrorism (explosives and MANPADS) and 10%

to safety (dangerous goods and explosive ordnance).

Figure 2. Number of international texts by issue area

Terrorism (MANPADS) Safety (dangerous goods) Safety (explosive

ordnance Terrorism (explosives) Arms control

(general)

2 3

5 7

10

Human rights Arms control

(SALW) Humanitarian

law 28

12 13

Figure 3 illustrates, using the example of the 80 international texts chosen for this study’s analysis, how regulation in different issue areas has evolved over time. The oldest texts belong to the field of humanitarian law.

International safety standards and human rights instruments developed at a later stage, as did explosive-weapon-related texts in the areas of arms control and terrorism.

Figure 3. Cumulative numbers of international texts by date of adoption or year of decision/judgment, and issue area

1868

Humanitarian law Human rights Safety Terrorism Arms control

1874 1880 1899 1907 1923 1949 1950 1956 1957 1971 1977 1979 1980 1988 1990 1991 1992 1993 1994 1995 1996 1997 1998 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

80 70 60 50 40 30 20 10 0