Controlling the circulation of small arms in international law
Hasan, R. (2013). Controlling the circulation of small arms in international law (Thesis, Doctor of Philosophy (PhD)). University of Waikato, Hamilton, New Zealand. Retrieved from http://hdl.handle.net/10289/7500
Permanent Research Commons link: http://hdl.handle.net/10289/7500
International humanitarian law (IHL) and international human rights law (IHRL) have shown an influence on the conventional arms control. A series of negotiations to control the trade of small arms, in particular the diplomatic conference on the arms trade treaty in July 2012, provide some evidence of this increasing influence. The negative impact of the widespread availability of small arms on human security justifies the linking of the use of these weapons with humanitarian and human rights law. The Security Council arms embargo, a reactive sanction measure imposed retrospectively, the only legal mechanism restricting small arms transfers, is often ineffective in achieving its objective. What is required is preventive action. Other international mechanisms, such as the 2001 United Nations Programme of Action on small arms, the UN Register, and the 2005 International Tracing Instrument cannot be implemented effectively for several reasons, in particular, because they are not legally binding instruments. The contemporary principle of State responsibility obliges States to regulate the small arms trade in the interest of preventing violence and ensuring security of all peoples. This obligation extends to those within and beyond their boundaries, in other words to the global population as a whole. Therefore, a selling State should not transfer weapons to another State if it is aware that the weapons may be used by the receiving State for internationally wrongful acts which would constitute a violation of international law. States have a responsibility to act in accordance with international norms of human rights and humanitarian law. Hence, a small arms transfer to another State, including for the purpose of self-defence, should be compatible with the requirements of IHL and IHRL. An examination of the treaties regarding conventional weapons from the 1868 St Petersburg Declaration to the 2008 Convention on Cluster Munitions shows the increasing reference to principles of humanitarian law and human rights law. Their influence is also evident in the regional and sub-regional instruments. The recent adoption of the Mine Ban Convention and the Convention on Cluster Munitions was finalised outside the United Nations with a wide participation of civil society which promotes respect for human rights. This suggests that a future arms control negotiation may have to take into consideration human rights and humanitarian concerns, and can be pursued outside the United Nations framework.
University of Waikato
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