25 years GCSP: International Disarmament Law Episode 2/3

​​​​​​Taking Stock, Moving forward: Disarmament under International Law

Ashley Müller: In this mini-series, we have the pleasure of conversing with Dr Stuart Casey-Maslen on the topic of International Disarmament Law. He is joined by Ms Dominika de Beauffort, Senior Policy Officer with the Security and Law Programme at the GCSP, where she is also the Course Director of the International Disarmament Law executive course and virtual learning journey.

Dominika de Beauffort: Stuart in the last episode, we discussed the history and definition of international disarmament law. And you also explained the term global disarmament treaty that you coined in the book a guide to international disarmament law. And we concluded saying that there are basically five global disarmament treaties, namely the Biological Weapons Convention, the Chemical Weapons Convention, the Anti-Personnel Mine Ban Convention, the Convention on Cluster Munitions, and then finally the Treaty on the prohibition of nuclear weapons. So looking at those of five treaties, would you say that they have things in common? Or what are the core features of these treaties?

Stuart Casey-Maslen: They do, I think, probably the central issue of a disarmament treaty is a prohibition on stockpiling and a corresponding obligation to destroy stockpiles. But in order to ensure that no new weapons are produced, there's a prohibition on production on development. And to prevent proliferation, there's a prohibition on transfer. There are some small exceptions. For example, under a couple of the treaties, you're allowed to transfer weapons for the purpose of their destruction. If another state has better facilities to destroy those weapons. That's the case under the Anti-Personnel Mine Ban Convention and the Convention on Cluster Munitions. And in all cases, except for the Biological Weapons Convention, use of the weapon is also prohibited.

Dominika de Beauffort: Okay, so the prohibition on the use is a core element of global disarmament treaties. And it would be interesting now to to to understand a bit better how such a ban on the use is addressed in global disarmament treaties?

Stuart Casey-Maslen: So slightly differently, although in the Anti-Personnel Mine Ban Convention and the Convention on Cluster Munitions, and most recently, the Treaty on the Prohibition of Nuclear Weapons, all uses prohibited in the Biological Weapons Convention use is not mentioned specifically, although the states parties have said, of course, use is prohibited, even though we don't actually say it. If you can't acquire, produce or stockpile a weapon, then you certainly can't use it. The Chemical Weapons Convention is a slightly different case. Although all use of weapons in warfare of chemical weapons is prohibited. There is a specific exception for the use of certain chemical weapons in situations of law enforcement. And they were thinking particularly about riot control agents, meaning tear gas, they may not be used as a method of warfare, but they can be used under limited circumstances in ordinary law enforcement.

Dominika de Beauffort: Yes, that's interesting that a provision for situations of law enforcement was included in the Chemical Weapons Convention. Interesting point. So now, I would like to speak a bit more about developing weapons. We can find provisions on developing weapons and global disarmament treaties. But is there actually a formal definition of the term development?

Stuart Casey-Maslen: No, there's no formal definition of the term development. It's generally accepted that it concerns all the activities that lead up to the point where production actually starts. So that would be a research that's conducted. And it would also be the testing of weapons of prototype weapons. Now in certain treaties, for example, in the Treaty on the Prohibition of Nuclear Weapons, there is a separate specific prohibition on testing on explosive testing. But that is also prohibited already under the prohibition on development.

Dominika de Beauffort: Now, when speaking about developing new weapons, this makes me actually think about new technologies, about emerging technologies. And I know, a group of governmental experts has been discussing these issues under the Convention on certain conventional weapons. Is there anything interesting to report? Have you maybe been following it?

Stuart Casey-Maslen: Yes. So, there's a particular discussion that has been ongoing now for about five years in relation to what are called lethal autonomous weapons system. And underpinning such weapons systems is artificial intelligence. What that means is, in the past, weapons tended to be directed and used by a person, it might be a person pressing a button, or it might be a person pulling a trigger. What is different because of the huge advance in technologies, such as artificial intelligence, is the ability of algorithms of computer algorithms to determine who is a lawful target, and who then can be killed or attacked. That's obviously a very significant change. Now, the problem in addressing development of a lethal autonomous weapon system is that artificial intelligence is all around us. We use it every day for a variety of very peaceful purposes. The robot that cleans, for example, that vacuums your house has a certain basic intelligence, many industrial processes use increasingly artificial intelligence. So how if there's an agreement to ban these weapons, how are you going to control the development? is a very difficult question. And I don't think any of us have the answer yet.

Dominika de Beauffort: Yes, exactly. That's a real debate. And maybe not only illegal, but also an ethical debate whether to ban lethal autonomous weapons altogether, or whether we should better say, well, these weapons will be developed anyways. So maybe it is much better to regulate them in an ethical way. So yeah, and we will also discuss these questions during our courses. And I can assure you that we always have heated debates when it comes to ether autonomous weapons.

Stuart Casey-Maslen: You've raised a very interesting point. And here's one where perhaps I'm a bit of an outlier in terms of international law. There are many people that believe for genuine valid reasons that these weapons should never be deployed, that there is an ethical as well as a legal impediment to ever allowing these weapons to be fielded. Let me suggest that there is also a contrary point of view that without underplaying the dangers and the risks, the level of respect with international humanitarian law is so abject so appalling, in general, that perhaps a computer that doesn't feel anger, doesn't feel fear, that responds to instructions, perhaps that could save lives. And I realised that that is a very controversial point of view.

Dominika de Beauffort: Yes, it is a controversial topic. I agree. And actually, this makes me think of a reality check public discussion that we organised with Professor Ashley Deeks last year. And if I remember correctly, the title was “War Algorithms: Who Will Decide in Future Conflicts”, we spoke about algorithms, and the question that we asked ourselves was, can we develop algorithms capable of being applied consistently with international law? And I must say, it's really very, very interesting. And I would like to recommend to anyone interested in the topic to watch this public discussion that we recorded, and that you can find on our GCSP YouTube channel linked to this topic. I would also like to mention that there are provisions in treaties that states that for peaceful purposes, development would be still possible. Could you develop on that a bit?

Stuart Casey-Maslen: So, it's not so much the right to develop weapons, it's the right to develop material or devices or substances that could be used for could be used as weapons, but actually are intended for peaceful purposes. So, for example, that the Chemical Weapons Convention bans as the name suggests, chemical weapons, but we use chemical substances every day. We use it to protect ourselves. Indeed, as everyone knows, we are hoping that a vaccine will be developed to either immunize or reduce the impact of coronavirus. That's clearly a chemical agent. And it is perfectly right and proper, that states have the right to research, develop and use those substances. So, the important thing is the purpose to which these agents are put whether it be chemical or biological. If they are used to protect people to assist people, but not for warfare, then that is legitimate. And in the treaties, the biological and the Chemical Weapons Convention, it's made explicit that that is acceptable. There's also with respect to nuclear weapons, a very genuine use of nuclear energy. Of course, it can be used for nuclear weapons, but it is also used for the purpose for example of heating people's homes.

Dominika de Beauffort: And now thinking for an instance about COVID-19 and biological weapons. Could we imagine that a state says, well, we have the right to develop substances for peaceful purposes. But actually in reality, what they will do they will explore ways to to develop a new weapon. Could we imagine that?

Stuart Casey-Maslen: Well, it's, it's slightly difficult because in order to develop immunization vaccination treatment mechanisms, you need the original chemical agent. So for example, in the United Kingdom, Porton Down, which used to be the UK’s chemical weapons laboratory, now engages in peaceful research, looking at how outbreaks of biological agents that cause significant disease could be addressed, that looks at treatments for the use of chemical weapons. And as we've seen over the last few years, chemical weapons continue to be used.

Dominika de Beauffort: Now looking at the five treaties that you've just mentioned. Do you see any trends in their design and in the way they have addressed specific activities in the past decades?

Stuart Casey-Maslen: Yes, and I think the Chemical Weapons Convention is the foundation of this. The Chemical Weapons Convention prohibits most use, not all use, but most use. And then production, transfer, and of course stockpiling. Subsequently, it's been accepted that when you ban a weapon, you should really ban it at all times. And in all circumstances, not just in a conflict, but also in peacetime for law enforcement purposes, but subsequent treaties, to the Chemical Weapons Convention have gone a little bit further. they've accepted that it's not enough to just deal with the weapon, you also have to deal with the effects of the weapon. So, the anti-personnel mine ban convention started what I would regard as a new trend, and which requires assistance to the victims, those that have already been harmed in the past, and then what we might call environmental remediation. In the case of mines and custom munition remnants, of course, that's the clearance of land, in terms of the Treaty on the Prohibition of Nuclear Weapons that's dealing with land that has been irradiated as a result of useful testing of nuclear weapons.

Ashley Müller: That's all we have now for this episode. Thank you to Dominika de Beauffort and Stuart Casey-Maslen. Tune in to our next episode to hear all the latest insights on international peace and security or head to our website and discover our upcoming events, webinars, courses that you can get involved in. Or just stayed tuned and let the next episode start automatically in this playlist. In the meantime, don’t forget to subscribe to us on Apple iTunes, follow us on Spotify and SoundCloud and across all of our social media channels which you can find in the episode description. I’m Ashley Müller with the Geneva Centre for Security Policy, until next time, bye for now!

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