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Commentary of 1987 
New weapons
[p.421] Article 36 -- New weapons


General remarks

1463 There was a need for a link between the principles laid down in Article 35 ' (Basic rules) ' and the concrete prohibitions or the effective restrictions on arms [p.422] which cause superfluous injury or unnecessary suffering, or have indiscriminate effects. Some delegates saw the need for a specific legal connexion involving the creation of a special body, a committee responsible for drawing up a list of weapons or methods of use which would fall under the prohibition. This committee would be established by the Protocol itself. It also implied the setting up of a mechanism designed to ensure that, in due course, special conferences would be convened with responsibility for concluding suitable agreements on the basis of humanitarian law. The advocates of this solution were concerned with elaborating Article 35 ' (Basic rules) ' in a specific and substantive way, and to establish "controls inspired by humanitarian considerations to limit superfluous injury or unnecessary suffering". For small countries this was a fundamental point, essential for their security. Some even seemed to be inclined to make it a condition of accepting the Protocol in its entirety. (1)

1464 In the view of opposing delegations, however, this proposal seemed to imply disarmament, a subject which was outside the scope of the Diplomatic Conference. It would lead to a proliferation of international bodies which would only complicate the search for a solution. It had one major drawback in that some of the factors, which are obviously of importance, such as military or political considerations, necessarily elude a humanitarian forum. Moreover, the link established with Article 35 ' (Basic rules) ' would ultimately establish the unlawful character of certain weapons, even if they had been used prior to the conclusion of the agreements envisaged, which would be unacceptable. Furthermore, they stated that without any consensus the proposal of the small countries was doomed to failure in the face of realities, and, as a practical matter, it would only be possible to establish a mechanism of control and review outside the Protocol. (2)

1465 This exchange of views ended in a rejection in plenary meeting of draft Article 86 bis submitted by Committee I, (3) for the majority in favour fell short of [p.423] the necessary two-thirds. Finally, by way of compromise, the Conference adopted by consensus Resolution 22 entitled "follow-up regarding prohibition or restriction of use of certain conventional weapons", which was mentioned above. (4)

Nature of the obligation

1466 Thus it is only in Article 36 that the Protocol establishes a link between its provisions, including those laid down in Article 35 ' (Basic rules) ' and the introduction of a new weapon by States. The principle is as follows: on the basis of this article the High Contracting Parties undertake to determine the possibly unlawful nature of a new weapon, both with regard to the provisions of the Protocol, and with regard to any other applicable rule of international law. The determination is to be made on the basis of normal use of the weapon as anticipated at the time of evaluation. If these measures are not taken, the State will be responsible in any case for any wrongful damage ensuing.

1467 The internal rules of certain States already contained a provision of this nature. (5) During the Conference of Government Experts in 1972, a formal proposition was tabled, (6) which was taken over in its essential points in the draft submitted by the ICRC at the opening of the Conference, (7) and was the object of a number of amendments. (8)

[p.424] 1468 For the reasons outlined above, in the end a general formula won the day in Article 36 , with the addition of Resolution 22, which was mentioned above. This solution became necessary as soon as the participants failed to agree on the interpretation of Article 35 ' (Basic rules), ' paragraph 2.

1469 This obligation was defined by the Rapporteur of Committee III as follows:

"The determination of legality required of States by this article is not intended to create a subjective standard (9). Determination by any State that the employment of a weapon is prohibited or permitted is not binding internationally, but it is hoped that the obligation to make such determinations will ensure that means or methods of warfare will not be adopted without the issue of legality being explored with care.

It should also be noted that the article is intended to require States to analyse whether the employment of a weapon for its normal or expected use would be prohibited under some or all circumstances. A State is not required to foresee or analyse all possible misuses of a weapon, for almost any weapon can be misused in ways that would be prohibited." (10)

1470 This commentary is quite clear. However, it should be added that a State which respects the obligation provided for in Article 36 , and determines that a new weapon is prohibited, is not automatically obliged to make public its finding. (11) This reservation is quite understandable, as modern strategy very often relies not on deployment of military means in the traditional ways, but on new possibilities resulting from research and which consists of creating an imbalance of military strength vis-à-vis the enemy precisely by means of superior technology in the form of new weapons. However, Article 36 in itself constitutes progress as it fills a gap at an international level. It implies the obligation to establish internal procedures for the purpose of elucidating the issue of legality, and the other Contracting Parties can ask to be informed on this point. (12)

1471 We emphasize the fact that this article, like ' jus in bello ' in general, is concerned with the use of weapons, not their possession, for prohibition of the latter falls under the heading of disarmament. (13) Whether a weapon is prohibited with regard [p.425] to its use, or with regard to its possession, is not merely a theoretical distinction. It is easy to imagine that a State equips itself with weapons whose use is normally prohibited for reasons of security, with the proviso that it may use them in certain circumstances by way of reprisal. However, it should remember that the use of these weapons is normally prohibited, and for this reason it must evaluate them in the light of the provisions of Article 36 , for example, at the time of their acquisition. Moreover, it is quite clear that a State could not knowingly equip itself only with weapons whose use is normally prohibited, without placing deliberately itself in a position in which it would, when the time came, violate the spirit and the letter of the Protocol, in other words, of the ' jus in bello. '

The problem of evaluation

1472 On what basis can or should this evaluation be made? Article 36 refers to "this Protocol" and "any other rule of international law applicable to the High Contracting Party", i.e., the Party which is acquiring a new weapons or new methods or means of warfare. The methods and means prohibited by the Protocol were studied above at a general level in the analysis of Article 35 ' (Basic rules). ' The weapons which are prohibited by the Hague Regulations and with regard to which the prohibition is virtually confirmed in the Protocol, were listed in the analysis of paragraph 2 of Article 35 ' (Basic rules). ' Without necessarily being "new" in a technical sense, these arms are new for the State which is intending to acquire them after becoming a Party to the Protocol. Thus their introduction is subject to the evaluation provided for in Article 36 . Regarding the clause on "any other rule of international law applicable to the High Contracting Party", this refers to any agreement on disarmament concluded by the Party concerned, or any other agreement related to the prohibition, limitation or restriction on the use of a weapon or a particular type of weapon, (14) concluded by this Party, which would relate, for example to a new generation of small calibre weapons or any other type of weapons. (15) Naturally, it also includes the rules which form part of international customary law.

[p.426] 1473 This obligation applies to countries manufacturing weapons, as well as those purchasing them. There are far more countries purchasing weapons than countries manufacturing weapons, and the former may be Parties to the Protocol, while the latter, who conceive, develop, manufacture and sell the weapon may not yet be. Whatever the case may be, the purchaser should not blindly depend on the attitude of the seller or the manufacturer, but should proceed itself to evaluate the use of the weapon in question with regard to the provisions of the Protocol or any other rule of international law which applies to it. With regard to the producer countries, they are bound by Article 36 to the same extent as the purchasing countries, from the moment that they become Parties to the Protocol, though the article does not seem to oblige them to prohibit the sale and export of weapons when the evaluation contradicts the rules in force in either their own country or the purchasing country. However, it is obviously desirable that the countries which manufacture arms, which devote to this industry a considerable investment in terms of employment and finance, (16) and which are mainly responsible for the fact that weapons are multiplying at an ever increasing rate throughout the world, also carry out their responsibilities in this matter. (17)

1474 In this respect various suggestions submitted during the session of the Ad Hoc Committee, such as, for example, the proposal to create an independent institution to gather useful facts, (18) could be of interest one day with regard to the application of Article 36 . However, in the short term the Contracting Parties have an obligation to determine themselves whether the arms that they possess, as well as the arms that they expect to produce or acquire in the future, are the object of a prohibition or not. Some of them have expressed their intention of referring for this purpose to international bodies, which could establish some degree of coordination, at least at a regional level. (19)

[p.427] 1475 The scope of Article 36 is not restricted to future weapons. However, it cannot be expected that States will introduce specific prohibitions on the basis of general principles, when such prohibitions could be considered as an a posteriori condemnation of prior use of such weapons. It is necessary to emphasize that the work and the proposals of the Ad Hoc Committee were certainly also concerned with existing weapons, because their prohibition or the restrictions on their use seemed necessary, at least in certain circumstances. Even taking into account the above-mentioned Convention on the prohibition or limitation of certain conventional weapons, which has a relatively restricted scope, Article 36 remains, together with the Hague Regulations, the only instrument in the law of armed conflict that can act as a brake on the abuses resulting from the arms race or on the possibility of future abuses, a possibility that must never be lost sight of -- quite the reverse ! However, this article is also concerned with future weapons .

Future arms

1476 Quite independently of the problems of atomic (nuclear), bacteriological and chemical warfare (ABC), or space war, which have not been included in this context, the experts were concerned with geophysical, ecological, electronic and radiological warfare as well as with devices generating radiation, microwaves, infrasonic waves, light flashes (20) and laser beams. (21) The use of long distance, remote control weapons, or weapons connected to sensors positioned in the field, leads to the automation of the battlefield in which the soldier plays an increasingly less important role. The counter-measures developed as a result of this evolution, [p.428] in particular electronic jamming (or interference), exacerbates the indiscriminate character of combat. (22) In short, all predictions agree that if man does not master technology, but allows it to master him, he will be destroyed by technology.

1477 Now is it not the uncontrolled rate of technological development for its own sake, much more than the real needs of security, which is primarily responsible for the escalation of the arms race? Technological progress necessarily implies a certain ' fait accompli ' (23) which opens the way for new military applications, even when the research was originally oriented towards peaceful ends. Thus new weapons discovered "inadvertently" in this way, have been adopted for the sole reason that they exist or because of a fear that others will develop them. Only governments are in a position to watch constantly, as they should each in its own country, the outcome of such technical progress. They may then identify those factors which contribute to escalation and ask themselves how such escalation can take place, despite external constraints and notwithstanding the fact that it paralyzes the efforts of those who seek greater wisdom and humanity. (24)

1478 Thus Article 36 correctly places the solution to the problem where it actually belongs, in the domestic government of nations, and identifies the essential point, i.e., the technological development of armaments.

Conclusion

1479-- The High Contracting Parties are obliged to determine the legality or illegality of the use of any new weapon introduced into their armed forces.

1480-- This obligation only concerns the normal use of the weapon as seen at the time of the evaluation, whether it were to be used in some or all circumstances (and not possibly misused).

1481-- If a weapon is found to be illegal by a State, this does not by itself create a mandatory rule of international law vis-à-vis third parties, even for the State first mentioned, nor is there an obligation for this State to make its findings public. Consequently the High Contracting Parties are not bound to reveal anything regarding new weapons which are being developed or manufactured.

1482-- However, Article 36 does imply the obligation to establish internal procedures with a view to elucidating the problem of illegality and therefore the other Contracting Parties can ask for information on this point.

' J. de P. '


NOTES

(1) [(1) p.422] O.R. VII, p. 30, CDDH/SR.47, para. 76; for the discussion of the Conference in plenary meeting, ibid, pp. 16-50;

(2) [(2) p.422] Ibid., pp. 16-50; for the discussion in the Ad Hoc Committee, see O.R. XVI, pp. 519-522, CDDH/408/Rev. 1, paras. 36-44;

(3) [(3) p.422] This draft article read as follows:
"1. A Committee of States Parties to the Conventions or this Protocol shall be established to consider and adopt recommendations regarding any proposal that one or more States Parties and the Committee itself may submit on the basis of Article 35 of this Protocol for the prohibition or restriction, for humanitarian reasons, of the use of certain conventional weapons that may cause superfluous injuries or have indiscriminate effects.
2. The Committee shall consist of representatives of thirty-one States Parties elected for three years on the basis of equitable geographical distribution by the States Parties to the Conventions or this Protocol, by means of notifications addressed to the depositary Government. The depositary Government, if it should consider it necessary, may convene a meeting of the States Parties to elect the members of the Committee. The Committee shall meet whenever one third of its members so requests; it shall adopt its recommendations by majority and shall elect its chairman.
3. The International Committee of the Red Cross shall participate in the work of the Committee referred to in this article, and shall provide the necessary secretarial facilities.
4. On the basis of the Committee's recommendations the depositary Government may convene a special Conference, in consultation with any State Party or Parties that may wish to invite such a Conference with a view to adopting agreements that implement the principle that the Parties to the conflict do not have an unlimited right of choice of means of combat." (O.R. X, pp. 276-277, CDDH/405/Rev.1. For the vote in the Committee, ibid., pp. 196-198, and, for the debate and the vote in plenary meeting, O.R. VII, pp. 16-35, CDDH/SR.47);

(4) [(4) p.423] Commentary Art. 35, supra, p. 402, and O.R. VII, pp. 261-268, CDDH/SR.57, paras. 47-76. Draft resolution on weapons, CDDH/441 and Add.1;

(5) [(5) p.423] See infra, note 19;

(6) [(6) p.423] CE/COM III/C 56 and 59 (CE 1972, Report, vol. II, pp. 65-66; also see ibid., vol. I, p. 130, paras. 3.21-3.22);

(7) [(7) p.423] "' Article 34 -- New weapons ' In the study and development of new weapons or methods of warfare, the High Contracting Parties shall determine whether their use will cause unnecessary injury.";

(8) [(8) p.423] In fact, these are not always without interest. They represent a whole range of possibilities. One of the first proposals, which came from Pakistan, to some extent anticipates the draft Article 86bis referred to above, in foreseeing that the High Contracting Parties should meet under the auspices of the ICRC for the purpose of determining which weapons should be prohibited (O.R. III, p. 154, CDDH/III/11). Certain delegations wanted expressly to link Article 36 to Article 35 by formally imposing an obligation on the Contracting Parties to ensure that new weapons would be compatible with this provision (ibid., p. 161, CDDH/III/235, and p. 159, CDDH/III/32). Others added a reference to Article 51, paragraph 4, which prohibits indiscriminate attacks (ibid., p. 160, CDDH/III/226) or, on the contrary, would prefer to refer merely to the prohibition on weapons causing unnecessary suffering, as in the ICRC draft (ibid., p. 156, CDDH/III/225), sometimes even extending it to a State that is not a Party to the conflict (ibid., p. 159, CDDH/III/28). One delegation asked for an explicit mention of the protection of the natural environment (ibid., p. 160, CDDH/III/92). With the exception of the proposal by Pakistan, all the suggestions were aimed at leaving compliance with the obligation under the control of the State itself, as in the final text. However, a proposal by the Byelorussian SSR deserves a mention. This consisted of making the following addition: "and in cases where it is determined that such weapons or the methods of their use in fact cause unnecessary suffering, they shall transmit the problem of their prohibition to the competent international organs for consideration" (ibid., p. 161, CDDH/III/231). This proposition is reminiscent of the final paragraph of the St. Petersburg Declaration of 1868 ("The Contracting or Acceding Parties reserve to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the armament of troops in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity");

(9) [(9) p.424] "Standard" is used in English for the French word "norme";

(10) [(10) p.424] O.R. XV, p. 269, CDDH/215/Rev.1, paras. 30-31;

(11) [(11) p.424] See in this respect O.R. XIV, p. 252, CDDH/III/SR.27, para. 46;

(12) [(12) p.424] In this sense, A. Cassese, "Means of Warfare; the Present and Emerging Law", RBDI, 1976/1, p. 158; and, by way of example, see infra, note 19, and ' American Society of International Law, Proceedings, ' "Should weapons of dubious legality be developed", 72nd meeting, Washington, 27-29 April 1978, pp. 26-50. Cf., in addition, Art. 48, First Convention; Art. 49, Second Convention; Art. 128, Third Convention; Art. 145, Fourth Convention. See also Arts. 80 and 84 of the Protocol;

(13) [(13) p.424] Thus, for example, the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques prohibits geophysical means as a weapon, and it is in this respect a form of disarmament (see commentary Art. 35, supra, p. 414);

(14) [(14) p.425] For example, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, of 10 October 1980. Article 8 of this Convention provides for a review mechanism with the purpose of examining new categories of conventional weapons which do not yet fall under the Protocols annexed to the Convention. A Conference will be held when this is requested by a Contracting Party to the Convention with the agreement of a majority of at least eighteen of them. All States, including all Parties to the Protocol, will be invited to this Conference. Thus this provision complements the implementation of the present Article 36 in a valuable way;

(15) [(15) p.425] Some further examples can be given of auxiliary means of interpretation, such as the Report of the Secretary General of the United Nations ("Rules of international law in force relating to the prohibition or the restriction on the use of certain weapons" (A/9215, 1973)), the "Comparative table of proposals" drawn up by the Ad Hoc Committee on conventional weapons (O.R. XVI, pp. 551-627, CDDH/IV/226) and the "possible elements of a prohibition of the use of weapons" drawn up by this same Committee (ibid., pp. 539-549, CDDH/408/Rev.1, Appendices I and II). This concerns future law to be created by the States themselves, individually or not, on the basis of the principles which they have established, at least up to a point, during laborious discussions;

(16) [(16) p.426] See "World Armaments and Disarmament", ' SIPRI Yearbooks ' 1978-1982, and United Nations, General Assembly, "Protection of nature from the pernicious effects of the arms race", Report of the Secretary General, A/S-12/9, 28 April 1982, especially paras. 18 and 29;

(17) [(17) p.426] It would be desirable for the country selling weapons to make sure in all circumstances that the country buying them undertakes the obligation only to use the weapons acquired in accordance with the applicable rules of the law of armed conflict. For the view that Article 36 applies equally to any new weapon for the country purchasing it, see O.R. VI, p. 101, CDDH/SR.39, para. 56;

(18) [(18) p.426] O.R. XVI, CDDH/237/Rev.1, Report of the Ad Hoc Committee, 1976, p. 501, par. 58;

(19) [(19) p.426] The following are some of these statements:
' Sweden ': "The government had set up a special committee of jurists, military experts and doctors to consider all projects for the incorporation of new weapons into the arsenals of the State, and to advise the government on their compatibility with the rules of international law in force." (O.R. XIV, p. 253, CDDH/III/SR.27, para. 53).
' Canada ': "As regards future weapons, his delegation had announced [...] that Canada had decided to set up a national body to consider the question from the point of view of international law" (O.R. XVI, p. 246, CDDH/IV/SR.24, para. 32. See also ' Lugano Report ', p. 125, paras. 86 and 87). The French text (Actes XVI, p. 250) refers to "une instance internationale".
' United States ': "In the United States of America the Department of Defense had issued an instruction requiring a legal review of all proposed new weapons to see that their development complied fully with international law." (O.R. XVI, p. 145, CDDH/IV/SR.15, para. 26; this instruction, entitled "Department of Defense Instruction, Review of the Legality of Weapons under International Law" (55.00.15), is dated 16 October 1974).
The "Allgemeine Bestimmungen des Kriegsführungsrechts und Landkriegsrechts" (General provisions of the law of armed conflict and of the law of war on land), March 1961, of the ' Federal Republic of Germany ' provide as follows in para. 86: "When new weapons are developed, their employment should be preceded by a study aimed at determining whether they infringe any explicit prohibition or general principles. If they do not, the use of these weapons is permissible" (translated by the ICRC).
' The Netherlands ': the Ministry of Defence of the Netherlands followed a similar procedure to Canada when deciding to acquire or develop new weapons or weapon systems. "It would be a good idea to set up some sort of independent institute to collect information on the possible and actual effects of certain conventional weapons." (O.R. XVI, p. 338, CDDH/IV/SR.32, paras. 38-39).
' United kingdom ': "the additional Protocols had provided an opportunity for the codification of existing practice and his country was therefore at present establishing a formal review procedure to ensure that future weapons would meet the requirements of international law." (O.R. VI, pp. 101-102, CDDH/SR.39, para. 58. See also O.R. XVI, p. 394, CDDH/IV/SR.38, para. 18).
' Soviet Union ': Article 34 [36] "placed on the High Contracting Parties the obligation of determining whether or nor their weapons were prohibited. All States at present had facilities for determining specifically whether a particular type of weapon was prohibited." (O.R. VI, p. 101, CDDH/SR.39, para. 56).
' Switzerland ': The Swiss representative associated himself with the important statement by the USSR representative [...] Article 34 [36] imposed an obligation on States and it was for each State to take that into account" (ibid., p. 102, para. 62);

(20) [(20) p.427] ' Lucerne Report, ' pp. 79-83, paras. 260-276;

(21) [(21) p.427] ICRC, Weapons of a nature..., op. cit., pp. 67-69, paras. 235-242;

(22) [(22) p.428] Ibid. p.428] p. 67, paras. 232-233;

(23) [(23) p.428] ' Lucerne Report, ' p. 77, para. 279; cf. the remarks of N. Landa, "El derecho de la guerra conforme a la moral", ' Revista de la Cruz Roja Española, ' No. 741, April 1971, p. 133, which was already criticizing the doctrine of ' fait accompli ' one hundred years ago;

(24) [(24) p.428] "Between Peace and War: The Quest for Disarmament", Statement by a Disarmament Study Group of the International Peace Research Association, ' 3 Bulletin of Peace Proposals ', Oslo, 1977, p. 277, letter a). It is significant, as the United Nations Secretary-General remarked, that there has been a continuation and even an acceleration in the arms race in the middle of the period of political détente (UN, ' Monthly Chronicle, ' No. 2, February 1978, p. 25);



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