The Arms Trade and International Law (Studies in International Law)

380 Pages·2007·1.45 MB·English

by  Zeray Yihdego

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T A T I L
HE RMS RADE AND NTERNATIONAL AW
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.
Volume 15: Studies in International Law
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Studies in International Law
Volume 1: Between Light and Shadow: The World Bank, the
International Monetary Fund and International Human Rights Law
Mac Darrow
Volume 2: Toxics and Transnational Law: International and European
Regulation of Toxic Substances as Legal Symbolism
Marc Pallemaerts
Volume 3: The Chapter VII Powers of the United Nations Security
Council
Erika de Wet
Volume 4: Enforcing International Law Norms Against Terrorism
Edited byAndrea Bianchi
Volume 5: The Permanent International Criminal Court
Edited by Dominic McGoldrick, Peter Rowe and Eric Donnelly.
Volume 6: Regional Organisations and the Development of Collective
Security
Ademola Abass
Volume 7: Islamic State Practices, International Law and the Threat from
Terrorism: A Critique of the ‘Clash of Civilizations’ in the New World
Order
Javaid Rehman
Volume 8: Predictablity and Flexibility in the Law of Maritime
Delimitation
Yoshifumi Tanaka
Volume 9: Biotechnology and International Law
Edited by Francesco Francioni and Tullio Scovazzi
Volume 10: The Development of Human Rights Law by the Judges of
the International Court of Justice
Shiv Bed
Volume 11: The Environmental Accountability of the World Bank to
Third Party Non-State Actors
Alix Gowlland-Gualtieri
Volume 12: Transnational Corporations and Human Rights
Edited by Olivier De Schutter
Volume 13: Biotechnologies and International Human Rights
Edited by Francesco Francioni
Volume 14: Human Security and International Law
Barbara von Tigerstrom
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The Arms Trade and
International Law
Zeray Yihdego
OXFORD AND PORTLAND, OREGON
2007
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Published in North America (US and Canada) by
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© Zeray Yihdego, 2007
Zeray Yihdego has asserted his rights under the Copyright,
Designs and Patents Act 1988, to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
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ISBN-13: 978-1-84113- 746-9 (hardback)
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Foreword
Nobody can dispute the damage which small arms (and the trade which
makes them available) do. The AK-47 might be the most dangerous device
that has ever been invented – but, of course, it has also been employed in
the realisation of good causes, too. Few see an easy solution to this
situation, controlling ‘bad’ guns without pulling in ‘good’guns – or,
indeed, any solution at all. Of course, a treaty might help but, until
recently, even getting the treaty process going seemed a distant prospect.
It was under the practical shadow of the guns and in the face of
remoteness of a comprehensive solution that Dr Yihdego began his
research. It was inspired by an idealistic objective, the making of a
contribution, however slight, to diminishing the conditions under which
the availability of small arms caused such destruction, that he undertook
his project. However, he sought to realise it by bringing his technical skills
as an international lawyer to bear by examining what constraints there
were on their supply and use already in the law. So, he looks at the general
principles of international law, international humanitarian law and the
law of human rights to see if they may be interpreted to provide some
means of regulating the manufacture and trade in small arms. He also
looks at the consequences of violations of those limits already in the
law he has identified, to see how they might make a difference. He
concludes that there are some restraints to be found, if the law is looked at
carefully and with his particular objective in view. Those who take a more
stringent approach to the technique of international law might have their
doubts but, at the very least, Dr Yihdego’s work will be valuable to those
engaged in the drafting of a small arms treaty. The big questions are for
political resolution but, once it has been decided to embark on the process
of setting up a regime for control of small arms, a whole series of legal
problems arise, many of which have been identified by Dr Yihdego and to
which he has some solutions to offer, solutions which have the virtue of
drawing on established rules and mechanisms within the international
legal system.
This book is the result of a great effort of inquiry and reflection. It is in
the tradition which sees international law as having within its existing
structures the resources for reform in the interest of projects to increase the
common good. The tide of change may be flowing, even if rather limply,
in the direction which Dr Yihdego wishes. His book is part of a process
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vi Foreword
which seeks to move the tide into a narrower channel, so that its force may
produce real and necessary change in the way States deal with the
problem of small arms.
Colin Warbrick
Barber Professor of Jurisprudence
Birmingham Law School
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Acknowledgements
First and foremost, I am thankful to and proud of my family, both in
Ethiopia and abroad, for their overall backing in my struggle to fulfil this
academic ambition; I am particularly grateful to my mother Eteye and my
brother Atakility. This book is equally devoted to the memory of my
beloved nephew, Elias Girmay, who unfortunately could not witness the
success of this publication as a result of his sudden death in winter 2006.
Furthermore, my sincere gratitude goes to my supervisor—Professor
Kaiyan Kaikobad, for having painstakingly supervised the doctoral thesis.
His thoroughness and devotion to duty including the hard work with
which he supervised my research is unparalleled and I am eternally
grateful to him. My gratitude would be incomplete if I forgot to
acknowledge Professor Colin Warbrick for the exceptional academic
support I received from him during the course of this work. His
contributions, ranging from the initiation of the topic to advice and
guidance on the development of the core ideas and arguments of the
project, are highly appreciated and valued.
I owe acknowledgement to my PhD examiners Professor Warbrick and
Professor Nigel White, for their willingness to examine the doctoral thesis;
I have learned invaluable lessons from their comments, questions, reports
and their civility in respect of academic disagreements.
I also particularly thank Dr Gillian Boughton for her dedication, time
and energy to proofread this long manuscript; the ideas and criticisms she
offered have greatly improved the quality of the book. Equally important
were the useful comments I received from General Tony Rogers, Professor
Barbara Frey, Ms Holly Cullen and Dr Boughton, on parts of the PhD
thesis. I must acknowledge Daniel Bethlehem (QC) for the advice he
offered, and Professor James Crawford for clarifying some legal issues
discussed in the book.
In any human endeavour, there is usually a time of difficulty. Mine is
not an exception. I am therefore extremely grateful for the financial and
moral assistance I received during difficult times from the various institu-
tions and individuals who contributed in one way or another. In this
regard, I am grateful to Professor Colin Warbrick, Professor Kaiyan
Kaikobad, Mrs Theresa McKinven, Dr Catherine Seville, Dr Linton Lewis,
Dr Elena Katselli, Mr Robin Shawyer, Dr Getachew Betru, Mrs Rebecca
Peters, the Department of Law, Ustinov College, Durham University, the
Liche Trust, Churches’ Commission, the Sidney Perry Foundation, Gilbert
Murray Trust (Oxford), IANSA, the Thessaloniki Institute of International
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viii Acknowledgements
Law, Shell, the Cambridge Overseas Trust and my family and friends, for
their assistance. Specifically too, my gratitude goes to the Department of
Law and the University of Durham for offering me a part-time teaching
position, invigilation and other appointments. I am equally very thankful
to Ms Sarah Williams for being a very good colleague in my teaching of
international law within the Department.
In the two years of being a tutor at St Mary’s and Grey Colleges of the
University of Durham, I have had the opportunity of interacting and
relating with both students and college officials. This has been a very
rewarding and illuminating experience to me. I am therefore indebted to
Miss Jenny Hobbs and Dr Gillian Boughton of St. Mary’s, and Mr Tony
Cleaver and Professor Martyn Chamberlain of Grey.
Last but not least, my friends in Britain and abroad (to name a few,
Michael Assfaw, Dr Tesfay Berhe, Francis Oni, Martin Uriarte, James
DiTullio, Dr Shubeur Rahman, Dr Mazviita Chirimuuta, Dr Benjamin
Wold, Valentina Asciutti, Ashley Savage), the service providers of the
University, in particular the Academic Staff Development Office, SPA and
the staff therein and the librarians in the Palace Green Library were all
exceptionally compassionate and so deserve my thanks.
Zeray W Yihdego
London, February 2007
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Preface
This monograph was initially a PhD thesis undertaken at Durham
University from October 2002 to December 2005, which was successfully
defended in April 2006. It has been fully revised and updated for the
purpose of turning it into a book, ‘The Arms Trade and International Law’.
The central question considered here is the proliferation of small arms
and light weapons and their unregulated trade and transfer. There are
believed to be about 700 million in circulation causing highly destabilising
security and other concerns of international law. Small arms and light
weapons (SALW) are the primary tools of violations and abuses of
humanitarian principles by states, rebels, terrorists and criminals. Many
consider them as the real weapons of mass destruction (WMD) of our time.
Causing about half a million deaths annually. The unrestricted interna-
tional transfersof SALW by states (99 states and 1000 companies involved
in manufacturing and supply) is one of the major contributory and aggra-
vating factors of the crises—they are the main source of the illicit
trafficking in small arms, and therefore deserve prime attention.
This book deals with questions of definition, manufacturing, trade/
transfer, and some issues relating to state responsibility. While a wide
approach has been adopted to define SALW, the focus of the research has
been on conventional small arms, in particular military-style weapons.
There seems no substantive restriction on small arms manufacture,
although there are evolving norms. Issues of definition and manufactur-
ing have been examined as a background to the main issue.
This book tackles the core legal problem of whether or not the laws
relating to arms control and relevant norms of international law provide
substantive restrictionson the transfer of small arms by states. As a response
to the crisis caused by the proliferation of small arms the book emphasises
supply aspects of the issue. Some studies and publicists argue that there
are no rules of international law applicable to these transactions, save
Security Council arms embargoes. The book will challenge this assertion
from the perspective of 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.
It will be argued that international law has succeeded in having and
applying arms control and other related restrictions and obligations to
such transactions. Very recent developments, notably the ECOWAS
Convention on small arms of 2006, and UN General Assembly Resolution
61/89 of December 2006 entitled ‘Towards an Arms Trade Treaty . . . ’
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x Preface
(Voted 153-1-24) reinforces such an assertion. While the application of the
aforementioned norms of international law to the problem has been fairly
examined, relevant practices of the international community at all levels,
including the position of prominent NGOs and publicists since the League
of Nations era, have been particularly considered in the light of sources of
international law and analogous legal regimes. The details of the legal
standards are subject to the progressive development of international law.
However, any violations may be regarded as the primary responsibility of
the weapons supplier, recipient or other states.
Finally, the findings and recommendations of this book highlight the
legal measures that must be taken to arrest illegal small arms transfer with
their atrocious consequences as well as the achievements and challenges
of the international community.
GAResolution 61/89 has called on the Secretary-General to establish a
Group of Governmental Experts ‘to examine the feasibility, scope and
draft parameters for a comprehensive, legally binding instrument
establishing common international standards for the import, export and
transfer of conventional arms, and to transmit the report of the group of
experts to the General Assembly for consideration at its sixty-third
session’, commencing in 2008. The author hopes that the publication of the
book at this critical moment will make a positive contribution towards
shaping the debate and moving it forward.