Journal of Conflict and Security Law - current issue

A New Architecture for the Non-Proliferation of Nuclear Weapons

Garvey, J. I. — 2008-04-11

The new architecture for the non-proliferation of nuclear weapons proposed here is a mandatory regime under Chapter VII of the United Nations Charter, building upon the current consensual regime, but remedying its deficiencies. This article examines the operation of the Nuclear Non-Proliferation Treaty in relation to current nuclear policy dynamics, explaining why the treaty regime has become increasingly inadequate to meet the proliferation challenge, and even counter-productive. The recent confrontations over nuclear policy with Iran, Saddam Hussein's Iraq and North Korea are drawn upon as illustrations and support for the new architecture's foundation—a Security Council Resolution declaring nuclear weapons proliferation, whether generated by states or non-state actors, a threat to the peace. The new architecture, while integrating key elements of the present non-proliferation framework, would be prescriptive, not merely reactive and ad hoc, the difference arising from its basis in a statement of principle under Chapter VII of the Charter. The article explains how this would engage a design similar to post 9/11 anti-terrorism innovation in the Security Council to achieve a more promising dimension of deterrence, political legitimacy and effectiveness in negotiation of non-proliferation. The new architecture includes the so-called ‘targeted sanctions’, a new tool already proven meritorious for anti-terrorism and counter-proliferation efforts. In conclusion, the article evaluates evidence demonstrating that the necessary political will is available to achieve the proposed new architecture and frames the essential policy choice.

The Arms Trade and States' Duty to Ensure Respect for Humanitarian and Human Rights Law

Brehm, M. — 2008-04-11

The unregulated international trade in conventional arms, especially in small arms and light weapons, has come to be viewed as an exacerbating factor in armed conflict, violent crime and internal repression. Concern about the negative humanitarian, development and security impact of this trade has been growing over the last decade. Against this backdrop, the UN General Assembly invited states in December 2006 to consider the feasibility of an instrument establishing common international standards for conventional arms transfers—also known as the ‘Arms Trade Treaty’ (ATT). The legality of arms transfers has traditionally been treated as a question of arms control law, but in the recent debate about legal restrictions on states’ liberty to transfer arms, norms of international humanitarian and human rights law have frequently been invoked. This article surveys the existing international legal regulation of state-authorised conventional arms transfers, examines how humanitarian law, and in particular states’ duty to ensure respect for humanitarian law, affects the legality of these transfers and shows why human rights law does not make a significant contribution to the legal regulation of the international arms trade today.

The Legal Regime Applicable to Use of Lethal Force When Operating under a United Nations Security Council Chapter VII Mandate Authorising 'All Necessary Means'

McLaughlin, R. — 2008-04-11

This article examines the issue of authorisation to use of lethal force under a UN Security Council Chapter VII ‘all necessary means’ resolution. Because UN-mandated or endorsed forces are regularly confronted by complex operational environments of mixed—often ambiguous—legal nature, it is essential that both the international and domestic legal implications and consequences of the use of lethal force are considered when planning and executing such operations. This is important for a number of reasons—not least among them being the legal protections and certainties that individual UN force members are entitled to expect are correctly reflected in their Rules of Engagement (RoE). Through an examination of the scope of SC Chapter VII powers generally—with particular emphasis on the human rights and IHL dimensions of the use of lethal force—the analysis arrives at the conclusion that there are two ‘use of force paradigms’ governing UN Chapter VII ‘all necessary means’ mandates. The first is the ‘law enforcement’ paradigm, which essentially countenances the use of lethal force within the limitations of self-defence. The second is the ‘armed conflict’ paradigm, where use of lethal force is permitted in wider circumstances. From this point, the article examines which paradigm is at play in a number of specific SC Chapter VII ‘all necessary means’ mandates, noting that the default position appears to be the law enforcement paradigm. The analysis then concludes by arguing that, for individual UN force members, the consequences and implications of this characterisation are ultimately a domestic legal issue, using one particular domestic legal jurisdiction—Australia—as an example.

The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f)

Cullen, A. — 2008-04-11

This article puts forward an argument for a particular approach to the interpretation of the definition of non-international armed conflict in the Rome Statute of the International Criminal Court. Focusing on the meaning of Article 8(2)(f), it is contended that this provision possesses a threshold of an application equivalent to that of Article 3 common to the four Geneva Conventions of 1949. In supporting this position, the first half of the article analyses the travaux preparatoires of the Rome Statute. Here relevant clauses relating to non-international armed conflict are analysed in order to highlight the threshold of application intended by their drafters. Following on from the travaux preparatoires of the Rome Statute, the second half of the article puts forward an interpretation of the threshold contained in Article 8(2)(f) as one applicable to all situations of non-international armed conflict subject to the court's jurisdiction. Drawing, among other things, on the conventional usage of the term ‘armed conflict not of an international character’ and the customary status of non-international armed conflict provisions in the Rome Statute, an argument is advanced for an understanding of the threshold contained in Article 8(2)(f) as the one identical to that of common Article 3.

The Long and Winding Road Towards an Instrument on Cluster Munitions

van Woudenberg, N. — 2008-04-11

Cluster munition has been used for some decades. The issue of how to keep the cluster munition problem manageable has also been debated for a long time. At present, the establishment of an international instrument on cluster munitions is being discussed in two fora, namely in the context of the Conventional Weapons Convention and in what is known as the ‘Oslo Process’. These discussions, which have intensified following the use of cluster munitions by Israel in southern Lebanon in the summer of 2006, are driven by the impact such munitions can have on the civilian population. Whereas formerly the debate tended to focus on the general problem of the explosive remnants of war (ERW) and current international humanitarian law was fairly generally regarded as adequate, the calls for an instrument specifically designed to deal with the issue of cluster munitions have suddenly become much more insistent since 2006. The article considers various questions. For example, how can the problem of cluster munitions be defined in a nutshell? What are cluster munitions? Is current international humanitarian law inadequate? How are the discussions on ERW in general and cluster munitions in particular being pursued? And why is an international legal instrument now being discussed in two fora? In short, the article is about a long and winding road towards an instrument on cluster munitions, or perhaps two instruments.¹

David Kennedy, Of War and Law

Kalpouzos, I. — 2008-04-11

Eugenia Lopez-Jacoiste Diaz (coord.), La Politica de Seguridad y Defensa en Europa

Odello, M. — 2008-04-11