UsO dE UNa bÁscUla dE cama (continuación)

ANALYSIS

Like our analysis of consensual forcible interventions at large, arms transfers to governments can also be controlled by emerging doctrines, purporting to limit the legality transfers on counts of substantive considerations. However, since arms transfers, as aforementioned, have unique aspects, there are ongoing attempts to regulate this issue separately from general questions of the use of force.

Arms transfers have been all but non-regulated throughout the 20th century,66 excluding a limited number of treaties prohibiting the transfer of specific kinds of weapons due to concerns – based on principles of international humanitarian law – emanating from the effects of their use.67

In recent years, the U.N. has begun to address this issue in a substantive sense. General Assembly resolution 61/89 of 2006 recognized that international standards on arms transfer are absent, and accordingly called upon the Secretary General to establish a

63

Nicaragua, supra note 12, ¶ 238, 247. 64

Supra, note 15. 65

See sec. I.2–I.3. 66

Except, of course, mandatory arms embargos imposed by the U.N. Security Council, as detailed supra. See also Brehm, supra note 45, at 27.

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group of experts to examine the drafting of a binding legal instrument to establish such standards.68 The resolution also acknowledged “the right of all States to manufacture, import, export, transfer and retain conventional arms for self-defence and security needs” – while balancing this right with its reaffirmation of respect “for international law, including international human rights law and international humanitarian law, and the [U.N.] Charter.”69 Thus, the resolution alluded to concerns raised by arms transfer in the realms of human rights law, jus in bello and jus ad bellum.

The following expert report, which was endorsed by the General Assembly,70 noted that any treaty should consider the issue of “transfers to non-State actors,” and should also “reflect respect for the sovereignty of every State, without interfering in the internal affairs of States.” In addition to the issue of non-intervention and arms transfers, the report noted that international human rights and humanitarian law may also have effect over the question of arms transfers.71 In consideration of this report, and subsequent discussions, the General Assembly decided that a four-week U.N. conference will convene in July 2012 in order to “elaborate a legally binding treaty” concerning arms transfers.72

Simultaneously, humanitarian concerns pertaining to the use of weapons have given rise to various potential doctrines, discussed in different forums, suggesting that arms transfers – even by private individuals – can be limited by existing due-diligence

68

G.A. Res. 61/89, pmbl., ¶2, U.N. Doc. A/RES/61/89 (Dec. 18, 2006). 69

Id. pmbl. 70

Report of the 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, U.N. Doc. A/63/334(Aug. 26, 2008) [hereinafter Arms Trade Report]; endorsed by the General Assembly in G.A. Res. 63/240, U.N. Doc. A/Res/63/240 (Jan. 8, 2009).

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Arms Trade Report,supra note 70, ¶¶17–18, 24. 72

G.A. Res 64/48, U.N. Doc. A/RES/64/48 (Dec. 2, 2009); for the updated situation regarding the treaty see UNITED NATIONS, ARMS TRADE TREATY PREPARATORY COMMITTEE, http://www.un.org/disarmament/convarms/ATTPrepCom/ (last visited Mar. 11, 2012).

requirements enshrined in international humanitarian law or international human rights law,73 or by general principles such as the principle of protection of civilians.74

Such doctrines, if codified within an upcoming arms trade treaty, may substantially affect and further clarify the legality of arms transfers as a form of forcible intervention. It remains to be seen what balance, if at all, will a future treaty strike between the issues of non-intervention, sovereignty, jus ad bellum, humanitarian law and human rights, and how it will treat arms transfers in the context of internal armed conflicts. It is clear, however, that the approach of international law towards this question, like the issue of intervention at large, is moving towards a substantive approach. Nonetheless, until such a binding instrument comes into force, the issue of arms transfers to parties in internal armed conflicts can be assessed according to the general principles governing forcible intervention, as outlined in the following chapters.

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Based on Article 1 Common to the Geneva Conventions (requiring states to “respect and to ensure respect” for international humanitarian law) and states’ general duty to exercise due diligence under Article 2(1) of the ICCPR (requiring states to “respect and to ensure” protection of rights), International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; See Brehm, supra note 45, at 30, 44 (arguing that human rights law does not contribute significantly to the regulation of conventional arms transfer); see also Barbara Frey, The Question of Trade, Carrying and the Use of Small arms and Light Weapons in the Context of Human Rights and Humanitarian Norms, Econ. & Soc. Council, U.N. Doc. E/CN.4/Sub.2/2002/39 (May 30, 2002); Gillard, supra note 61, at 31–32, 38–40.

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Table 1: Summary of the Definition of Forcible Intervention Acts Constituting Forcible Intervention

SCOPE MEANS “GRAVITY”

“Grave” Uses of Force

Armed Attacks: forceful acts across an international border; whether by states’ regular forces or irregular forces sent by it (Nicaragua)

Wars

Comprehensive use of force; (Dinstein) and

Acts “Short of War” Brief, limited and transitory forceful acts (Higgins)

*All cross-border means, ranging from simple aerial incursions (Higgins) and minesweeping activities (Corfu Channel) to use of deadly military force and weaponry * Might includes terrorist attacks through non-traditional means (SC Res 1368, 1373)

* May potentially include

“unorthodox” forceful acts such ass cyber-attacks

“Less-grave” Uses of Force

Including, inter alia, acquiescence, toleration and encouragement of forceful actions taken by non- state actors from within a state’s territory. (“indirect aggression”) (Nicaragua; Corfu Channel; DRC v. Uganda); Arms transfers (Nicaragua)

ACTORS LEVEL OF STATE CONTROL (ATTRIBUTION)

Actions by states; actions through irregular forces and by non-state actors (including arms traders); regional organizations or U.N. mandated forces

“Effective control” (Nicaragua) or “overall control” (Tadic); might be reviewed on a case by case basis (Commentaries to Article 8 ILC Draft); possible requirement of due diligence