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Max Planck Encyclopedia of Public International Law [MPEPIL]


Bakhtiyar Tuzmukhamedov

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19 August 2019

Disarmament — Weapons — Armed forces — Armed conflict

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

The term disarmament embraces a variety of measures designed to limit or reduce, both quantitatively and qualitatively, eliminate, and cease the production of means of warfare (Warfare, Methods and Means). Disarmament may include limitation and reduction of military personnel of armed forces, and reduction of defence spending. Legal norms that form the foundation of such measures closely interact with norms that regulate the use of armed force in international relations since they reinforce restrictions on such use. Likewise, they interact with norms that regulate the use of means of warfare by parties to an armed conflict. Disarmament may be enhanced by adjacent and ancillary measures such as demilitarization and neutralization of particular territories, and Confidence-Building Measures (‘CBMs’).

Disarmament may be executed by way of co-ordinated measures. It may also be achieved on a limited scale through unilateral measures undertaken by a single State or by several States concurrently, absent a formal agreement (eg unilateral reductions of tactical nuclear weapons announced by the presidents of the US, the Soviet Union, and later Russia, respectively, on 28 September 1991, 5 October 1991, and 29 January 1992).

Disarmament is best achieved through formal agreements. As for unilateral measures, they are political by nature, do not acquire a legal form, and do not imply verification of compliance, while non-compliance does not necessarily entail responsibility. They may create a climate conducive to negotiation of co-ordinated treaty norms, or may form the foundation for such norms. However, a State that introduces such measures unilaterally may likewise unilaterally withdraw them without legal consequences (eg the moratorium on test launches of ballistic missiles declared by North Korea in 2000 and lifted in 2006).

While the second half of the 20th century witnessed a considerable growth in numbers of disarmament and arms control treaties, such treaties also existed earlier. One notable arrangement that has remained in force since the early 19th century is an agreement effectuated by an exchange of notes between the Acting Secretary of State of the US and the British Minister Plenipotentiary in 1817, relating to the limitation and reduction of the naval forces on the American Great Lakes (Rush–Bagot Agreement). In 2003, following consultations between the US and Canada, the agreement was adjusted to meet the needs of counter-terrorist activities in the aftermath of attacks of 11 September 2001. The Hague Peace Conferences (1899 and 1907) left a substantial and appreciable normative heritage. An effective Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (94 LNTS 65) is the treaty additional to the Hague Conventions of 1907, its adoption having been precipitated by the use of chemical weapons during World War I. The period between the two World Wars also witnessed the negotiation and conclusion of the Washington Treaty on the Limitation of Naval Armament (1922), and the London Treaty for the Limitation and Reduction of Naval Armament (112 LNTS 65) that may count as brainchildren of the Hague Peace Conference (1907) that focused on the regulation of naval warfare. Impressive in their intent and design, those treaties were short-lived and never came close to attaining their ambitious goals.

B.  Sources

The United Nations Charter offers a general international legal foundation for disarmament in its Art. 11 (1), which refers ‘principles governing disarmament and the regulation of armaments’ to the body of ‘general principles of cooperation in the maintenance of international peace and security’. Contemporary international law is not aware of a generally recognized and universal obligation to disarm. In the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America) the International Court of Justice (‘ICJ’) stated that ‘in international law there are no rules, other than such rules that may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all states without exception’ (at para. 269). The essence of the general obligation regarding disarmament is reflected in Art. VI Treaty on Non-Proliferation of Nuclear Weapons (‘NPT’; Non-Proliferation Treaty [1968]) and is, therein, confined to a commitment ‘to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control’. Reference to this objective or to that particular provision of the NPT may be found in several treaties on limitation of armaments, usually in their preambles.

The principal sources of norms regulating disarmament are international treaties. They may be universal like the NPT (see also Universality), regional (eg the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean [‘Treaty of Tlatelolco’] of 1967), or bilateral (eg the Treaty between the Russian Federation and the United States of America on Measures for Further Reduction and Limitation of Strategic Offensive Arms [New START] of 2010). Treaties regulating disarmament may be further categorized according to their purpose and object: treaties limiting particular armaments or restricting activities related to those armaments, treaties pertaining to weapons of mass destruction (‘WMDs’), or to conventional armaments.

As the role of international intergovernmental organizations in the creation of norms is growing, so is the significance of their resolutions as an auxiliary source of law in the realm of disarmament. Certain resolutions related to disarmament adopted by the UN General Assembly (‘UNGA’) may contain prospective norms in the formative phase. The ICJ noted in 1996 in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) that UNGA resolutions, ‘even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris … or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule’ (at para. 70). Occasionally the resolutions of the UNGA serve as ancillary means of implementation of treaty norms. Such were the resolutions designed to ensure the completion of entry into force of the South Pacific Nuclear Free Zone Treaty of 1985 (Treaty of Rarotonga; 1445 UNTS 177), and Treaty on a Nuclear-Weapon-Free Zone in Central Asia of 2006 (Treaty of Semipalatinsk). A notable case was the resolution adopted in 1989 that established procedures to promote compliance with a Geneva Protocol that did not contain verification provisions. The resolution provided special procedures that allowed prompt investigation by the UN Secretary-General of reports alleging the use of banned weapons.

Judgments and advisory opinions of the ICJ may be essential in assessing and clarifying the meaning of legal principles and norms that regulate disarmament.

Supplementary means of elucidating the contents of rights and obligations under disarmament treaties may be offered by Art. 32 Vienna Convention on the Law of Treaties (1969), in particular preparatory materials. However, it should be borne in mind that occasionally, especially within the context of bilateral negotiation, parties may keep individual records, and their perception of what transpired during negotiations and how that would affect the treaty implementation may differ. This happened during the negotiation of the Treaty between the USSR and the USA on the Limitation of Anti-Ballistic Missile Systems (‘ABM Treaty’).

10  Documents such as interpretations and understandings related to ratification of international treaties by respective national branches of power may also serve as auxiliary means of interpretation, eg conditions, understandings, and declarations contained in the US Senate Resolution giving advice and consent to the ratification the New START and the Federal Law of the Russian Federation on the Ratification of that Treaty.

C.  Norm-Making Bodies

11  Norms and normative proposals are developed at negotiations or within the framework of existing bodies. Examples from the past include conferences that brought together major naval powers of the day to negotiate limitation of naval armaments, convened from 1921–35 in Washington DC, London, and Geneva, or the World Conference on Disarmament that worked intermittently from 1932–37 under the auspices of the League of Nations.

12  Under the UN Charter the consideration of the principles of disarmament and the regulation of armaments falls under the competence of the UNGA, which makes recommendations to the members of the UN or to the UN Security Council (‘UNSC’) or to both (Art. 11 (1) UN Charter). The UNSC is responsible for the formulation of plans ‘for the establishment of a system for the regulation of armaments’ (Art. 26 UN Charter). To accomplish this task, the UN Charter provides for a Military Staff Committee that is to advise and assist the UNSC on the matters, pertaining to ‘the regulation of armaments, and possible disarmament’ (Art. 47 (1) UN Charter).

13  In reality, disarmament matters are dealt with by one of the main committees of the UNGA: the First Committee (Disarmament and International Security Committee). Questions that are more specific are discussed within the Disarmament Commission, a subsidiary body of the UNGA. Of the three Special Sessions of the UNGA on disarmament convened in 1978, 1982, and 1988, only the first can be described as productive. Two other Special Sessions failed to even adopt a concluding document. Efforts to convene the fourth Special Session on disarmament, first initiated by the UNGA in 1995, have yet to bear fruit.

14  The Conference on Disarmament is an autonomous negotiating body that had initially been set up in 1959 by the UNGA as the Ten-Nation Committee on Disarmament succeeded by the Eighteen-Nation Committee on Disarmament, further succeeded by the Conference of the Committee on Disarmament. While successful as a negotiating forum for the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (‘CWC’; 1974 UNTS 45) and the Comprehensive Nuclear-Test-Ban Treaty (‘CTBT’; UN Doc A/50/1027 Annex), subsequently it slowed down the norm-making activity and for several years has been unable to finalize and adopt the Draft Convention on the Prohibition of Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices or to begin substantive discussion of several new proposals including the Draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects jointly introduced by China and Russia in 2008. Neither was it able to identify priorities of its own work programme.

15  The UNSC did not deal with general disarmament matters as much as the UNGA did. It mostly focused on specific situations, and, in particular, it authorized the coercive disarmament of Iraq (UNSC Res 687 [1991] [3 April 1991] SCOR 46th Year 11), condemned the nuclear weapons tests conducted by India and Pakistan (UNSC Res 1172 [1998] [6 June 1998] SCOR 53rd Year 104), and authorized several peacekeeping operations to assist in disarmament of parties to armed conflicts. However, from the early 1990s onwards, the UNSC made several landmark decisions related to WMDs. In particular, at a meeting at the level of Heads of State and Government in 1992, the UNSC characterized the proliferation of WMDs as a threat to international peace and security and stated the commitment of its members to prevent the spread of technology related to the research for or production of such weapons and to take appropriate action to that end. The UNSC also reaffirmed—by taking note of the statements made by each of its five permanent members—security assurances against the use of nuclear weapons to non-nuclear-weapon States Parties to the NPT (UNSC Res 984 [1995] [11 April 1995] SCOR 50th Year 104). In 2004, the UNSC passed a resolution on non-proliferation of WMDs, including the prevention of their falling into the hands of Non-State Actors (UNSC Res 1540 [2004] [28 April 2004] SCOR [1 August 2003–31 July 2004] 214). The same resolution established a subsidiary body known as the 1540 Committee, with the task of reporting to the UNSC on the implementation of the resolution.

16  The UNGA established an administratively autonomous UN Institute for Disarmament Research, which is tasked with conducting independent studies of disarmament and related matters.

17  Of the regional mechanisms, one worth mentioning is the Forum for Security Cooperation, which is a negotiating and consultative body established in 1992 within the framework of the Organization for Security and Co-operation in Europe (OSCE). The forum’s achievements include several documents on CBMs in the military sphere, the OSCE Document on Small Arms and Light Weapons ([24 November 2000] FSC.DOC/1/00), and the OSCE Document on Stockpiles of Conventional Ammunition ([19 November 2003] FSC.DOC/1/03). Current issues under discussion include the OSCE’s role in supporting the non-proliferation of WMDs, export controls of man-portable air defence systems (‘MANPADS’), and cyber security.

18  Treaty-based bodies may also create norms or prototypes of prospective norms. Examples on the universal and regional levels respectively include the Organization for the Prohibition of Chemical Weapons (‘OPCW’) established by the CWC, and the Agency for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (‘OPANAL’) established by Treaty of Tlatelolco. Some bilateral treaties also provide for the consultative bodies authorized to draft amendments to their parent treaties. The ABM Treaty Standing Consultative Commission may have been one of the more effective organs of the kind, having developed several substantive interpretative documents and draft amendments.

19  Treaty-based bodies may serve as means and forums of settlement of disputes related to implementation of the treaty. However, the treaties may provide for external procedures of settlement of such disputes: the UNSC (eg for the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological [Biological] and Toxin Weapons and on Their Destruction) or the ICJ (for the CWC and the CTBT).

D.  Subjects of Regulation

20  There is a corpus of norms defining and regulating partial measures of disarmament, also referred to as arms control. Such measures may comprise limitation, prohibition, or elimination of particular armaments; restriction, or prohibition of their production, stockpiling, deployment, and use; imposition of qualitative and quantitative restrictions on particular armaments; constraints on qualitative advancement of armaments; and restrictions on deployment of armed forces and armaments within or beyond national territories.

1.  Weapons of Mass Destruction

21  The norms related to the WMDs are the most developed and comprehensive. As early as in 1948 the UNSC-created Commission for Conventional Armaments in its Resolution of 12 August 1948 defined WMDs as ‘atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above’ (at para. 1). This definition was subsequently reaffirmed by UN practice.

(a)  Nuclear Weapons

22  Currently effective norms prohibit nuclear weapons testing in the atmosphere, outer space, and under water (Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water [‘PTBT’]; 480 UNTS 43). The ban will become comprehensive when and if the CTBT enters into force.

23  Any nuclear explosions as well as placement of nuclear weapons are prohibited in Antarctica (Antarctic Treaty; 402 UNTS 71), in Latin America and the Caribbean (Treaty of Tlatelolco), the southern part of the Pacific Ocean (Treaty of Rarotonga), in Africa (African Nuclear-Weapon-Free-Zone Treaty; [1996] 35 ILM 698; Treaty of Pelindaba), in Central Asia (Treaty of Semipalatinsk), on the seabed and subsoil thereof (Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof; 955 UNTS 115), and on the Moon and other celestial bodies (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 610 UNTS 205).

24  Currently effective norms embodied in the NPT strive to prevent the proliferation of nuclear weapons and their appropriation by any State with the exception of the five recognized nuclear-weapon States (China, France, Russia as a State continuator of the former Soviet Union, the UK, and the US). These measures are enhanced by the prohibition imposed on Bulgaria, Finland, Hungary, Italy, and Romania in the Peace Treaties (1947) to ‘possess, construct or experiment with any atomic weapon’, as well as by the same undertaking under the Austrian State Treaty (1955). Under the Treaty on the Final Settlement with Respect to Germany of 1990 (1696 UNTS 115) the obligation not to manufacture, possess, or control WMDs applies to the unified German State.

25  The fundamental changes in relations between States possessing strategic nuclear arms notwithstanding, their regulation retains its vital importance. The term strategic arms is relative and currently embraces intercontinental ballistic missiles (‘ICBMs’), heavy bombers equipped for nuclear armaments such as gravitation bombs, ballistic, and cruise missiles, submarine-launched ballistic missiles (‘SLBMs’), sea-launched cruise missiles, as well as strategic missile defence systems.

26  Prior to the dissolution of the Soviet Union the regulation of strategic armaments belonged exclusively to the realm of Soviet–American relations, since only those two nations possessed the full array of those weapons and their systems. The most comprehensive document concluded during that era was the Treaty on the Reduction and Limitation of Strategic Offensive Arms of 1991 (‘START I’). After the dissolution of the Soviet Union later that same year, four former Soviet republics (Belarus, Kazakhstan, Russia, and Ukraine) remained in possession of items regulated by START I. To enable the execution of START I, all four assumed the obligations of the predecessor State under the terms of the Protocol to START I, which they signed in 1992 with the US. However, Russia, who retained the bulk of the strategic arsenal and potential of the former Soviet Union, remained a sole party to strategic arms negotiations.

27  Until 2002, Russia and the US had been bound by the obligation not to deploy anti-ballistic missile systems for the defence of the national territory and not to provide the base for such systems, while permitted systems and related activities had to comply with limitations imposed by the ABM Treaty. The US withdrew from the ABM Treaty and intensified missile defence-related activities that had been previously banned. Under the circumstances, Russia declared that it did not consider itself bound by the obligation to refrain from actions that might defeat the object and purpose of the Treaty on Further Reduction and Limitation of Strategic Offensive Arms (‘START II’) of 1993. This treaty was ratified by Russia in 2000, but never by the US.

28  Under the currently effective New START the parties are to reduce, by 2018, their nuclear arms to 1550 strategic warheads, 800 deployed and non-deployed ICBM launchers, SLBM launchers, heavy bombers, and 700 strategic delivery vehicles, including deployed ICBMs, SLBMs, and heavy bombers equipped for nuclear armaments. Each party has the flexibility to determine the structure of its strategic forces within the aggregate limits of the New START.

29  It should be noted that, recent achievements in Russian–American strategic arms regulation notwithstanding, several States who possess certain classes of strategic arms, namely China, France, and the UK, are yet to be included in the process of limitation and reduction of such weapons as their own inventories may eventually become commensurate with those of Russia and the US. Moreover, only Russia and the US have eliminated their intermediate and shorter-range missiles, both ballistic and cruise, with a range from 500 to 5500 kilometres, as well as their production and testing (Treaty between the United States and the Soviet Union on the Elimination of Their Intermediate-Range and Shorter-Range Missiles of 1987).

30  As to the undertaking under Art. VI NPT ‘to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament’, it should be currently viewed in light of the statement of the ICJ in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) that ‘there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control’ (at para. F). Arguably, the ICJ established that the goal of ‘cessation of the nuclear arms race’ had been achieved and that the obligation in Art. VI NPT binds the States whether or not they are parties to the NPT, as it has become opinio iuris.

(b)  Other Weapons of Mass Destruction

31  Bacteriological (biological) and chemical weapons also qualify as weapons of mass destruction. They first fall under a comprehensive ban: they may not be de-veloped, produced, transferred, stockpiled, or used while existing stockpiles, including agents, toxins, weapons, equipment, and delivery vehicles, must be destroyed according to the BWC. The BWC does not provide for a verification regime apart from consultations between parties and complaints on alleged violations lodged with the UNSC. A draft protocol on verification that an ad hoc group of experts established by the 1991 Review Conference has developed with an intention to present it to the 2001 Review Conference was rejected by the US.

32  A universal treaty bans modification of the environment for military purposes with destructive effects comparable to those resulting from the use of weapons of mass destruction (Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 1108 UNTS 151).

(c)  Non-Proliferation Regimes

33  The NPT strives to confine the group of States possessing nuclear weapons to five recognized as such. Other parties are under the obligation not to develop, manufacture, or otherwise acquire nuclear weapons. The NPT has been an effective legal tool in resolving non-proliferation issues following the dissolution of the Soviet Union. South Africa, which had developed nuclear weapons, chose to dismantle its nuclear inventory and acceded to the NPT. Argentina, Brazil, and Libya abandoned national nuclear programmes that could have resulted in acquisition of nuclear-weapon capability. The 1995 Review Conference decided that NPT would be a treaty of unlimited duration.

34  However, the NPT has not become an insurmountable obstacle for States aspiring to acquire nuclear weapons. In 1998 India and Pakistan successfully tested nuclear explosive devices that were fit to be used as weapons. There may be reasons to believe that other States possess nuclear weapons, eg Israel, although it has not been proven that it tested a nuclear device by way of explosion, the latter being a prima facie evidence of a nuclear-weapon capability. The very fact that those States are not parties to the NPT undermines its effectiveness as well as the trust in it on the part of non-nuclear States, whether parties or not. Several States allegedly developed a technological and industrial capability that may allow them to develop and produce nuclear weapons. The nuclear programmes of Iran and North Korea are of particular concern. The latter announced in 1993 that it decided to withdraw from the NPT, but then declared a moratorium on that decision, only to discontinue the moratorium in 2003. In 2006, North Korea conducted an explosion that featured some characteristics of a nuclear test. The status of that State as a party to the NPT is uncertain.

35  The NPT regime can be enhanced by making it an ultimately universal instrument, by strengthening of the nuclear safeguards system administered by the International Atomic Energy Agency (IAEA) through a system of agreements and additional protocols, as well as by augmenting the treaty regime with more effective means of prevention of proliferation and enforcement measures. Unforeseen in 1968 when the NPT was open for signature, there is a growing urgency of prevention of nuclear proliferation involving non-State entities, whether institutions or individuals, that may possess knowledge, expertise, technologies, or materials, or attempt to acquire them for malicious purposes.

36  NPT, CBW, and CWC, while legally prohibiting the acquisition and proliferation of nuclear, biological, and chemical weapons and certain auxiliary technologies and equipment respectively, do not impose a comparably comprehensive ban on their means of delivery, particularly regarding missiles. Some restrictions on proliferation of missiles and missile technologies were envisaged in the ABM Treaty, as well as in treaties limiting or reducing strategic offensive arms. The Missile Technology Control Regime (‘MTCR’) and the Hague Code of Conduct against Ballistic Missile Proliferation (‘HCOC’) specifically deal with missile proliferation. The MTCR, which was initiated in 1987, is based on non-binding arrangements to restrict the export of missile equipment, material, and related technologies usable for systems capable of delivering WMDs. Its weaknesses lie in it not being a legally-binding regime, being far from universal (34 participating States as of the first quarter of 2011), not involving all producing and exporting States, and having very few importing States adhere to it. The HCOC has a more impressive participation (131 States as of the first quarter of 2011) and is based on a politically binding document. It complements the MTCR and provides for transparency concerning ballistic missile tests and space vehicle launches. However, these two regimes do not include several States such as India, Iran, Israel, North Korea, and Pakistan that acquired, or are suspected of having acquired or attempting to acquire, nuclear weapons, and are developing and testing ballistic missiles capable of delivering those weapons. India, Iran, and Israel were successful in placing objects in orbit around the Earth. The outcome of similar attempts by North Korea remains uncertain, but these facts may serve as evidence of these States’ capability to build long-range ballistic missiles. Prevention of illegal proliferation of WMDs and their components and of the means of delivery by interdiction and boarding vessels suspected of carrying such items is the objective of the Proliferation Security Initiative (PSI), which is a non-binding arrangement first proposed by the US in 2003 and currently supported by 98 States. It also provides for interdiction or denial of airspace to aircraft suspected of engaging in such activities. The PSI is augmented by several bilateral ship boarding agreements which are legally binding, as well as by boarding provisions of the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988.

37  Another approach to non-proliferation of WMDs and related technologies is harmonizing and strengthening national export controls of supplier States. Those include the Zangger Committee, the Nuclear Suppliers Group (‘NSG’), and the Australia Group (‘AG’). The first is also known as the NPT Exports Committee formed in the course of 1971–74 and currently comprising 38 States. It assists States and the IAEA in preventing the diversion of legally exported nuclear materials and technologies from peaceful purposes to development and production of nuclear weapons and other nuclear explosive devices. The NSG, comprising 46 States, seeks to contribute to nuclear non-proliferation through national implementation of guidelines for nuclear and nuclear-related exports. Similarly the AG, founded in 1985 and currently comprising 40 States, is focused on developing export controls to prevent the development of biological and chemical weapons.

2.  Conventional Weapons

38  The Conventional Armed Forces in Europe (CFE) Regime established by the homonymous treaty binds groups of States Parties to reduce their conventional armaments and military equipment to agreed levels that would prevent them from launching a surprise attack or to engage in large-scale offensive operations. Upon entry into force in 1992, the treaty was complemented by a politically binding Concluding Act of the Negotiation on Personnel Strength of Conventional Armed Forces in Europe that limited the parties’ military personnel within the area of application of the treaty. While CFE negotiations opened on the then-existent military block basis, ie the North Atlantic Treaty Organization (NATO) and the Warsaw Treaty Organization, the treaty was already signed by the Federal Republic of Germany on behalf of both German States in anticipation of the reunification of Germany, and the Warsaw Treaty Organization had been dissolved by the time CFE became effective. To have the treaty meet the needs of a new security environment including the creation of new States and expansion of NATO, the Agreement on Adaptation of the Treaty on Conventional Forces in Europe was signed in 1999. The agreement’s objective was to replace the group (military block) levels with national and territorial ceilings on treaty-limited equipment. However, the original CFE would have been in force pending the ratification of the agreement by all signatories. In 2007, Russia, citing the failure of the majority of signatories to ratify the agreement and related security concerns, suspended the effectiveness of CFE in her own regard, while not formally withdrawing from the treaty. The suspension affects Russian participation in data exchanges, notifications, and inspections.

39  Comprehensive bans on particular types of conventional weapons and munitions are the purpose of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (2056 UNTS 211), and the Convention on Cluster Munitions ([2009] 48 ILM 357).

40  At the junction of norms regulating disarmament and those of international humanitarian law stands the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (1342 UNTS 137) with its five protocols concluded from 1980–2003. Certain measures envisaged by those instruments provide for a comprehensive ban on the use of particular weapons bringing them close to disarmament.

41  Likewise, prospective norms that may have to be developed to regulate non-lethal weapons which incapacitate military equipment but do not inflict injuries on personnel that are incompatible with life could belong to that same junction.

42  Other conventional arms issues include non-proliferation of small arms and light weapons (Small Arms, International Restrictions on the Trade in). However, there is only one binding instrument that rather belongs to the area of law-enforcement, ie the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition of 2001, supplementing the United Nations Convention against Transnational Organized Crime of 2000 (2326 UNTS 208). The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies that became operational in 1996 is an international institutionalized undertaking which promotes transparency and responsibility in exports and transfers. There are several other arrangements within the UN and other international organizations, including the UN Register of Conventional Arms. Of particular importance in light of threats to civil aviation is non-proliferation of MANPADS. Various arrangements to this regard include the MANPADS Action Plan adopted at the G8 Evian Summit in 2003, guidelines approved by the OSCE, the Asia-Pacific Economic Cooperation (APEC) Forum and the Organization of American States (OAS), as well as the United States–Russia Arrangement on Cooperation in Enhancing Control of MANPADS of 2005, the latter providing for exchange of information about sales and transfers, mutual assistance in destruction of obsolete or excessive systems, and other measures.

E.  Verification

43  Verification of compliance with disarmament treaties is achieved by a variety of means and methods, which include national technical means (‘NTMs’), verification by international institutions, both pre-existing (IAEA) or treaty-specific (OPANAL, OPCW), national and international on-site inspections, voluntary or compulsory reporting, as well as their combination.

44  Divergent views on verification and lack of trust between States impeded practical disarmament until the conclusion of the Antarctic Treaty proved the feasibility of inspections and the implicit consent given to NTMs as means of verification of compliance with the PTBT. NTMs became an essential attribute of all strategic arms limitation and reduction treaties. Their performance is improved by undertakings to use them in a manner consistent with generally recognized principles of international law and not to interfere with them, as well as by various measures enhancing their effectiveness.

45  States now accept that verification measures, in particular on-site inspections, can be quite intrusive. Some treaties like the CWC provide for challenge inspection without refusal.

F.  Conclusions

46  In a public lecture that Fedor Martens delivered in the aftermath of the Hague Peace Conference (1899), he described disarmament as a problem ‘so serious and so barely explored that prudence calls for its deferral till later times’ (Centennial of Russian Initiative: From the First Peace Conference of 1899 to the Third Peace Conference of 1999 [St Petersburg 1999] 36). However, initially occasional and sporadic legal instruments have over time developed into a rather elaborate branch of international law, though less well-knit than the law of the sea or the law of treaties.

47  Definite achievements notwithstanding, including most recently in bilateral strategic offensive arms control, disarmament is confronted with impeded functioning of some regimes (NPT, CBW), erosion (CFE), or dismantlement (ABM Treaty), or failure to bring into effect (CTBT) of several others, as well as with deadlocks in the sole multilateral negotiating forum (Conference on Disarmament) and the UNGA’s Disarmament Commission.

48  There is urgency in retaining participants in existing regimes and bringing new participants into existing ones or into negotiations on prospective regimes. The effectiveness of informal regimes (eg the MTCR) will be enhanced by making them legally binding.

49  Disarmament, more than any other sphere of international regulation, is likely to rest, as it does now, on a reasonably stable, solid, and predictable treaty foundation.

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