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The Hague Conventions and Arms Control

Published online by Cambridge University Press:  27 February 2017

Detlev F. Vagts
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Extract

The Hague Conferences of 1899 and 1907, and the conventions they produced, opened the doors—just barely—to the era of arms control. But they did so in a way that would not have been expected. Arms control can be understood as having two main branches—the quantitative and the qualitative. “Quantitative”refers to controls that permit a given category of weapons—such as batdeships, nuclear warheads, and andballistic missile systems—but restrict the number that each of the participating powers may hold. “Qualitative” refers to prohibitions on the use of specified items—such as explosive bullets, poison gas, and bacteriological weapons. Curiously, it was the matter of quantitative control—the desire to check the costs of the arms race—that led to the calling of the Hague Conferences, but their only arms control outcome concerned qualitative limitations. One can trace influences of the Hague experience in this regard on both sides of the arms control movement after World War I and more faintly after World War II, though its descent is less clear than that of the prisoner-of-war conventions and other law of war rules. The inclination of scholars and policymakers to neglect the arms control efforts made between the two world wars has tended to obscure the indirect influence of the Hague Conferences.

Type
Symposium: The Hague Peace Conferences
Information
American Journal of International Law , Volume 94 , Issue 1 , January 2000 , pp. 31 - 41
Copyright
Copyright © American Society of International Law 2000

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References

1 See Niall Ferguson, The Pity of War 106 (1998).

2 See Stockholm International Peace Research Institute [sipri], 1968/69 sipri Yearbook of World Armaments and Disarmament 200–01; 1990 sipri Yearbook of World Armaments and Disarmament 196–97.

3 See Ferguson, supra note 1, at 110.

4 See id. at 110–11.

5 The most widely read was the one-volume English version, Ivan Bloch, The Future of War in its Technical, Economic and Political Relations: Is War Now Impossible? (Robert E. C. Long trans., Ginn & CO. 1903) (1897). The Harvard Law School library also has French and German versions.

6 The Reports to the Hague Conferences of 1899 and 1907, at 1–2 (James Brown Scott ed., 1917) [hereinafter Reports].

7 1 British Documents on the Origins of the War, 1898–1914, at 221 (G. P. Gooch & Harold Temperleyeds., 1927).

8 Reports, supra note 6, at 173.

9 Francis Anthony Boyle, Foundations of World Order: The Legalistic Approach to International Relations (1898–1922), at 71 (1999).

10 Reports, supra note 6, at 895.

11 Id. at 894.

12 See id. at 895.

13 See Stanford Arms Control Group, International Arms Control: Issues and Agreements 85–86 (2ded. 1984).

14 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, Nov. 29,1868 (Dec. 11), reprinted in The Laws of Armed Conflicts 101 (Dietrich Schindler & Jiří Toman eds., 3d rev. ed. 1988).

15 sipri, Anti-Personnel Weapons 214 (1978).

16 Declaration [No. IV, 3] concerning Expanding Bullets, July 29, 1899, Texts of the Peace Conferences at The Hague, 1899 AND 1907, at 83 (James Brown Scott ed., 1908) [hereinafter Hague Conference Texts], reprinted in The Laws of Armed Conflicts, supra note 14, at 109 (the United States did not adhere to this declaration).

17 Convention [No. II] with Respect to the Laws and Customs of War on Land, with annex of regulations, July 29, 1899, 32 Stat. 1803, 1 Bevans 247 [hereinafter 1899 Hague Convention No. II].

18 Convention [No. IV] Respecting the Laws and Customs of War on Land, with annex of regulations, Oct. 18, 1907, 36 Stat. 2277,1 Bevans 631 [hereinafter 1907 Hague Convention No. IV and Regulations].

19 See Calvin Dearmond Davis, The United States and the First Hague Peace Conference 119 (1962).

20 Declaration [No. IV, 2] concerning Asphyxiating Gases, July 29, 1899, Hague Conference Texts, supranoxe 16, at 81, reprinted in The Laws of Armed Conflicts, supra note 14, at 105 (the United States did not adhere to this declaration).

21 1899 Hague Convention No. II, supranote 17, Art. 23(a) (using the word “arms” instead of “weapons”); 1907 Hague Convention No. IV, supra note 18, Art. 23(a).

22 Declaration [No. IV, 1] to Prohibit for the Term of Five Years the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature, July 29, 1899, 32 Stat. 1839, 1 Bevans 270; and Declaration [No. XIV] Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18,1907, 36 Stat. 2439,1 Bevans 739.

23 Convention [No. VIII] Relative to the Laying of Automatic Submarine Contact Mines, Oct. 18, 1907,36 Stat. 2332, 1 Bevans 669 [hereinafter 1907 Hague Convention No. VIII].

24 Reports, supra note 6, at 657.

25 1907 Hague Convention No. VIII, supra note 23, Art. 1 (3).

26 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 ILM 1507 (1997).

27 See Regulations annexed to 1899 Hague Convention No. II, supranote 17, Art. 22; and Regulations annexed to 1907 Hague Convention No. IV, supra note 18, Art. 22.

28 The Martens clause appears in the Preambles to 1899 Hague Convention No. II, supra note 17, and 1907 Hague Convention No. IV, supra note 18. For a history and analysis of the Martens clause, see Theodor Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 AJIL 78 (2000).

29 In opening the conference, Charles Evans Hughes referred back to The Hague. See Davis, supranote 19, at 364.

30 Treaty for the Limitation of Naval Armaments, Feb. 6,1922, 43 Stat. 1655, 2 Bevans 351. For an analysis, see The Washington Conference, 1921–22: Naval Rivalry, East Asian Stability and the Road to Pearl Harbor (Erik Goldstein & John Maurereds., 1994) [hereinafter The Washington Conference].

31 Treaty for the Limitation and Reduction of Naval Armaments, Apr. 22, 1930, 46 Stat. 2858, 112 LNTS 88. For an analysis, see Raymond G. O'Connor, Perilous Equilibrium: The United States and the London Naval Conference of 1930 (1962).

32 Limitation of Naval Armament [Second London Naval Treaty], May 18, 1936, 50 Stat. 1363, 3 Bevans 257.

33 For a participant's account, see Philip Noel-Baker, The First World Disarmament Conference, 1932–33: And Why It Failed (1979).

34 Samuel Eliot Morbon, The Rising Sun in the Pacific, 1931–April 1942, at 9 (1948) (citation omitted).

35 See the summary in John H. Maurer, Arms Control and the Washington Conference, in The Washington Conference, supra note 30, at 267.

36 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, June 17, 1925, 26 UST 571, 94 LNTS 95.

37 See Chemical Warfare, 5 Encyclopaedia Britannica 355 (1961).

38 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, Aug. 5, 1963, U.S.-UK-USSR, 14 UST 1313, 480 UNTS 43.

39 Interim Agreement on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, May 26, 1972, U.S.-USSR, 23 UST 3462 (no longer in force).

40 Treaty on the Limitation of Anti-Ballistic Missile Systems, May 26,1972, U.S.-USSR, 23 UST 3435,944 UNTS 13.

41 Treaty on the Limitation of Strategic Offensive Armsjune 18, 1979, U.S.-USSR, S. EXEC. Doc. Y, 96th Cong. (1979) (did not enter into force).

42 Treaty on the Reduction and Limitation of Strategic Offensive Armsjuly 31,1991, U.S.-USSR, S. TreatyDoc. No. 20, 102d Cong. (1991); Treaty on Further Reduction and Limitation of Strategic Offensive Arms, Jan. 3, 1993, U.S.-USSR, S. Treaty Doc. No. 1, 103d Cong. (1993).

43 Treaty on Conventional Forces in Europe, Nov. 19,1990, 30 ILM 1 (1991).

44 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destructionjan. 13, 1993, S. Treaty Doc. No. 21, 103d Cong. (1993), 32 ILM 800 (1993).

45 Note 36 supra.

46 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10,1972, 26 UST 583, 1015 UNTS 163.

47 SeeRonald Rotunda, The Chemical Warfare Convention: Political and Constitutional Issues, 15 Const. Commentary 131 (1998).

48 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, opened for signature Apr. 10, 1981, Appendix B, Protocol [I] on Non-Detectable Fragments, 19 ILM 1523, 1529 (1980).

48 Id., Protocol [IV] on Blinding Laser Weapons, Oct. 13, 1995, 35 ILM 1218 (1996).

50 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8); Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ Rep. 66 (July 8).

51 For differing views on the cases, see Richard A. Falk, Nuclear Weapons, International Law and the World Court: A Historic Encounter, 91 AJIL 64 (1997); and Michael J. Matheson, The Opinions of the International Court of Justice on the Threat or Use of Nuckar Weapons, 91 AJIL 417 (1997).

52 Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Rep. at 478–81.

53 Elihu Root, Prefatory Note to Hague Conference Texts, supra note 16, at iv.

54 For a survey that goes back to 1899 and concludes that arms control, particularly of the quantitative type, “reveals a pattern of failure,” see Colin S. Gray, House of Cards: Why Arms Control Must Fail 234 (1992).