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International Law, Arms Embargoes and the United Nations Security Council

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International Law, Arms Embargoes and the United Nations Security Council Durham E-Theses International law, Arms embargoes and the United Nations security council Everett, Katharine Laura Ann How to cite: Everett, Katharine Laura Ann (2007) International law, Arms embargoes and the United Nations security council, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/2881/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 INTERNATIONAL LAW, ARMS EMBARGOES AND THE UNITED NATIONS SECURITY COUNCIL The copyright of this thesis rests with the author or the university to which it was submitted. No quotation from it, or information derived from it may be published without the prior written consent of the author or university, and any information derived from it should be acknowledged. Thesis submitted in fulfilmen t of the requirements for the degree of Master of Jurisprudence Katharine Laura Ann Everett Department of Law, Durham University May 2007 1 2 FEB 2008 In memory of Mr. Sean Devereux 1964-1993 Teacher and UNICEF aid worker assassinated in Somalia www.seandevereux.org.uk TABLE OF CONTENTS TABLE OF CONTENTS iii LIST OF ABBREVIATIONS v ABSTRACT 10 INTRODUCTION 11 The Problem in General 11 Conventional Weapons and the Unique Problem of Small Arms and Light Weapons 15 The Aims of this Thesis 23 CHAPTER ONE 24 RELEVANT LEGAL SPHERES AND EXISTING ARMS CONTROL REGIMES 24 1. Introduction 24 2. The (lack of) arms control law - existing initiatives, arrangements and instruments regarding conventional arms, in particular SALW 25 3. International humanitarian law 32 4. International human rights law... 36 5. The System of Collective Security under the Charter 37 6. Conclusion 41 CHAPTER TWO 42 THE UNITED NATIONS SECURITY COUNCIL: LEGAL POWERS AND LIMITS 42 1. The United Nations Security Council 42 2. Legal Powers of the Council 42 3. Legal Limits to the Council's exercise of the powers contained in Chapter VII 58 4. Conclusion 66 CHAPTER THREE 68 THE REVIEW AND CLASSIFICATION OF UNITED NATIONS SECURITY COUNCIL PRACTICE REGARDING MANDATORY ARMS EMBARGOES 68 1. Introduction 68 2. The Four Contextual Bases 69 3. Basic summary of results 74 4. Nature and scope of arms embargoes 82 5. A normative framework? 86 6. Conclusion 89 CHAPTER FOUR 91 WHAT IS THE CORRECT LEGAL BASIS FOR ARMS EMBARGOES WITHIN THE CHARTER? .. 91 1. Introduction 91 2. Exploring the specific legal mandate for arms embargoes 93 3. Alternative legal bases for mandatory arms embargoes: Article 40? 108 4. Conclusion 113 CHAPTER FIVE 115 OTHER ISSUES OF INTERNATIONAL LAW ARISING FROM THE USE OF UNITED NATIONS SECURITY COUNCIL ARMS EMBARGOES 115 1. Addressees 115 2. Primacy revisited 124 3. Rights affected by implementation 125 4. Self determination 131 5. Self defence 134 6. The Role of the Council in enforcement 138 7. Other spheres of international law under which to hold states responsible? 140 8. Practical difficulties with regard to Enforcement 143 9. Conclusion 144 CONCLUSIONS 145 BIBLIOGRAPHY cxiix ANNEX clxvi LIST OF ABBREVIATIONS AE Arms Embargo A/RES/xxxx United Nations General Assembly Resolution AJIL American Journal of International Law BBC British Broadcasting Corporation BFSP British and Foreign State Papers BICC Bonn International Center for Conversion BWC Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction CCWC 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 CERD International Convention on the Elimination of All Forms of Racial Discrimination CPE Treaty on Conventional Armed Forces in Europe CHR Commission on Human Rights (UN) CRS Congressional Research Service CTBT Comprehensive Nuclear-Test-Ban Treaty CWC Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction CUP Cambridge University Press DPRK Democratic People's Republic of Korea (North) Democratic Republic of the Congo (Formerly DRC Zaire) Declaration of the World Conference against Durban Declaration Racism, Racial Discrimination, Xenophobia and Related Intolerance Digest of United States Practice in International DUSPE. Law ECOWAS Economic Community of West African States ed./eds. Edition or editor(s) e.g. exempli gratia - for example etal et alia - and others et seq. 'and the following [pages]' FRY Federal Republic of Yugoslavia (i.e. Serbia and Montenegro) - part of the former Yugoslavia. GA General Assembly GC Geneva Convention(s) (1949) 1925 Geneva Protocol Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare Hague Convention Hague Convention for the Suppression of Unlawful Seizure of Aircraft HCOC Hague Code of Conduct against Ballistic Missile Proliferation HFG Review Harry Frank Guggenheim Review HRC Human Rights Council (UN) IAEA International Atomic Energy Agency Ibid. Ibidem - the same place - References corresponds to that which is contained in the preceding citation I.e. Id est (That is) ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICRC International Committee of the Red Cross IDP Internally displaced person(s) ILC International Law Commission ILC Draft Articles International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts (2001) Ind.U Indiana Law Journal INTERPOL International Criminal Police Organisation IPS International Peace and Security Iran Islamic Republic of Iran IRRC International Review of the Red Cross JCSL Journal of Conflict and Security Law KLA Kosovo Liberation Army LURD Liberians United for Reconciliation and Democracy Mich.JIL Michigan Journal of International Law MINUSTAH United Nations Stabilization Mission in Haiti MoD Ministry of Defence (UK) MODEL Movement for Democracy in Liberia Montreal Convention Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation MONUC United Nations Organization Mission in the Democratic Republic of the Congo MTCR Missile Technology Control Regime No. Number or numbers NPT Treaty on the Non-Proliferation of Nuclear Weapons NSA Non-state actor NSG Nuclear Suppliers Group NY New York NYBIL Netherlands Yearbook of International Law Op. cit. Opus citatum - in the work cited previously by the same author OPCW Organisation for the Prohibition of Chemical Weapons OSCE Organisation for Security and Cooperation in Europe Ottawa Convention Convention on the prohibition on the Use, Stockpiling, Production and Transfer of Anti- Personnel Mines and their destruction OUP Oxford University Press Paragraph or paragraphs (when used in relation to a SC resolution, this symbol indicates an operative paragraph) P5 Permanent Five (Members of the Security Council) p./pp. Page or pages PLO Palestine Liberation Organisation PoA Programme of Action RDI Rivista di Diritto Intemazionale Rep. Report or Reports RES Resolution RUF Revolutionary United Front SALW Small Arms and Light Weapons SALW Review Conference UN Conference to Review Progress made in the Implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects 2006 SC/Council United Nations Security Council Southern Rhodesia Now, Zimbabwe S/RES/xxxx United Nations Security Council Resolution Tokyo Convention Tokyo Convention on Offences and Certain other Acts Committed on Board Aircraft UCDB Uppsala Conflict Database UK United Kingdom of Great Britain and Northern Ireland UN United Nations UNAMIR United Nations Assistance Mission for Rwanda UNAMSIL United Nations Mission in Sierra Leone UNBISnet United Nations Bibliographic Information System UNIFIL United Nations Interim Force in Lebanon UNITA Uniao Nacional para a IndependSncia Total de Angola / National Union for Total Independence of Angola UNITAF Unified Task Force UNMEE United Nations Mission in Ethiopia and Eritrea UNMIL United Nations Mission in Liberia UNMOVIC United Nations Monitoring, Verification and Inspection Commission UNOCI United Nations Operation in Cote d'lvoire UNOMSIL United Nations Observer Mission in Sierra Leone UNPROFOR United Nations Protection Force (Former Yugoslavia) UNSCOM United Nations Special Commission UNTS United Nations Treaty Series V. Versus Viz. That is to say/namely VOL Volume or Volumes WMDC The Weapons of Mass Destruction Commission YBILC Yearbook of the International Law Commission 10 ABSTRACT Due to the political aspects of international law and the political nature of the problems involved in international relations, appreciation of the legal nature of United Nations Security Council arms embargoes is lacking. Based upon a review of the practice of the Council, this thesis explores the operation of arms embargoes within
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