CiNii Books - The arms trade and international law

Shortlisted for the 2008 Young Authors Inner Temple Book Prize There are believed to be about 700 million small arms and light weapons (SALW) in the world, often contributing to highly destabilising security and other concerns in international law. SALW are the primary source of violations and abuses of humanitarian and human rights principles by states, rebels, terrorists and criminals. Many consider them the real weapons of mass destruction of our time, causing about half a million deaths annually. The unrestricted international transfer of SALW by states (99 states and 1000 companies involved in manufacturing and supply) is one of the major contributory and aggravating factors of this crisis; another is the illicit traffic in small arms. This book deals with the proliferation of SALW and their unregulated trade and transfer across borders. It addresses questions of definition, manufacturing, trade/transfer, and issues relating to state responsibility. The primary focus is on conventional small arms, in particular military-style weapons. The book tackles the core and most divisive legal problem of whether or not the laws relating to arms control and relevant norms of international law provide substantive restrictions upon the transfer of small arms by states. The application of the norms of international peace and security, non-intervention, humanitarian and human rights laws, and evolved relevant customary rules of arms control relating to these norms are considered particularly carefully. Questions of application and enforcement of relevant rules and institutional responses to the problem are also examined. The UN began considering an arms trade treaty in 2006; the publication of the book at this critical moment in time will make a positive contribution towards shaping the debate and aims to further enhance understanding in an area where close analysis is required.

Table of Contents

PART I INTRODUCTION: FEATURES, DEFINITION AND MANUFACTURING OF SALW 1 Introduction 2 Features and Definition of SALW: Associated Problems 2.1 FEATURES 2.1.1 Lethal Character 2.1.2 Accessibility 2.1.3 Suitability for Use 2.1.4 Durability 2.1.5 Versatility 2.1.6 SALW Comprises a Vast Range of Weapons 2.2 DEFINITION 2.2.1 Why is Definition Essential? 2.2.2 General Definition-SALW 2.2.2.1 Global Efforts 2.2.2.2 Regional Efforts 2.2.2.3 Domestic Legislation 2.2.2.4 Firearms Industries, NGOs and Writers 2.2.2.5 Conclusion on a General Definition 2.2.3 Ammunition and Explosives 2.2.4 Parts and Components 2.2.5 Conclusions 2.2.5.1 Problems 2.2.5.2 Perspectives 2.2.6 Appropriate Definition 3 Manufacturing of SALW: Associated Problems 3.1 DEFINITIONAL, FACTUAL AND MORAL ISSUES 3.2 CONCERNS AND LEGAL ISSUES 3.3 SUBSTANTIVE LIMITATIONS ON SALW MANUFACTURING 3.3.1 The League of Nations and the United Nations 3.3.2 Treaties 3.3.3 Regional Efforts 3.3.3.1 The West African Moratorium 3.3.3.2 The OSCE and the EU 3.3.3.3 Conclusion 3.3.4 Domestic Legal Systems on SALW Manufacturing 3.3.5 NGOs 3.3.6 Conclusions 3.3 IS THERE A RULE OF SUBSTANTIVE LIMITATION? 3.3 CONCLUSIONS AND PROBLEMS PART II INTERNATIONAL TRANSFERS OF SALW: SUBSTANTIVE LIMITATIONS AND PROBLEMS 4 International Transfers of SALW: Introduction 4.1 USE OF TERMS, SCOPE, FACTS AND ISSUES 4.1.1 Use of Terms and Scope 4.1.2 Facts 4.1.3 Issues 4.2 GENERAL CONSIDERATIONS FOR SUBSTANTIVE LIMITATIONS 4.2.1 Relevant General International Law Norms 4.2.2 Some Controversial Considerations 5 Adherence to the Peace and Security Legal Norm 5.1 ASPECTS OF INTERNATIONAL PEACE AND SECURITY 5.2 EXPRESS PROHIBITIONS: TREATIES AND RESOLUTIONS 5.3 EMERGING STATE PRACTICE: GLOBAL EFFORTS 5.4 REGIONAL INSTRUMENTS 5.5 DOMESTIC INSTRUMENTS 5.6 NGOS AND WRITERS 5.7 THE PEACE AND SECURITY NORM 5.8 CONCLUSIONS 6 Adherence to the Non-intervention Norm 6.1 TRANSFERS ONLY BY AND TO GOVERNMENTS OF STATE 6.1.1 Global Efforts 6.1.2 Regional and National Efforts 6.1.3 The ICJ and Publicists on the Question 6.1.4 Position of NGOs 6.2 EXCEPTIONAL GOVERNMENT-TO-NSA TRANSFERS 6.2.1 Transfers to NLMs 6.2.2 Transfers to Special Entities 6.2.2.1 The Palestine Authority and the SALW Trade 6.2.2.2 Taiwan and the SALW Trade 6.2.3 Other Cases 6.3 THE NON-INTERVENTION RULE 6.4 CONCLUSION 7 Humanitarian Law (IHL) Limitations on SALW Transfers 7.1 IHL IN GENERAL 7.2 THE OBLIGATION TO RESPECT AND ENSURE RESPECT FOR IHL VIS-A-VIS SALW TRANSFERS 7.2.1 IHL Standards for SALW Transfers 7.2.2 The Legal Background to the Standards 7.2.3 Actual or Potential Use Standard 7.2.3.1 Global Efforts 7.2.3.2 Regional and Security Organisations Efforts 7.2.3.3 Domestic Efforts 7.2.3.4 Cases, NGOs and Publicists 7.2.4 Excessive Availability Standard 7.2.5 Have Use and Availability Based Legal Rules Emerged? 7.2.6 The Martens Clause and SALW Transfers 7.3 CONCLUSIONS AND PROBLEMS 8 International Human Rights Law (IHRL) Limitations on SALW Transfers 8.1 IHRL IN GENERAL 8.2 THE DUTY OF STATES REGARDING THE USE OF FIREARMS 8.3 ACTUAL OR POTENTIAL USE OF SALW AGAINST IHRL: A STANDARD FOR RESTRICTING TRANSFERS 8.3.1 Global Efforts 8.3.2 Regional Efforts 8.3.3 Domestic Efforts 8.3.4 NGOs and Writers 8.3.5 The IHRL Rule of Transfers 8.4 CONCLUSIONS PART III CONCLUSIONS 9 State Responsibility and Arms Transfers: Some Reflections 10 Findings and Recommendations

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