Legal Review of New Weapons: Origins of Article 36 of AP I

Abstract

This paper examines the origins of the requirement placed on States by Article 36 of Additional Protocol I (‘AP I’) to the Geneva Conventions to review the legality of a new weapon, means or method of warfare. It does so by first testing the possibility that Article 36 represents either a restatement or a revised version of some similar provision found elsewhere in the law of armed conflict. To that end, it explores 13 international instruments which regulate the use of weapons in war and were adopted prior to the 1974-1977 Diplomatic Conference where Article 36 was negotiated. The paper argues that Article 36 is not a product of continuous historical evolution of States’ views on how particular prohibitions or restrains on the weapons use should be put into effect at the domestic level. In fact, none of the pre-existing international mechanisms resemble the AP I weapons review provision. The paper then examines the drafting materials. Whilst no unequivocal evidence on the motives for adopting a provision on weapons review can be found in the Official Records of the 1974-1977 Diplomatic Conference, there is enough evidence to conclude that the key States behind Article 36 were Germany and the UK. The General Legal Provisions relating to the Conduct of Hostilities and War on Land, operative in Germany since 1961 and mandating that weapons be developed in accordance with the requirements of the existing legal regulations, might well be a predecessor to Article 36.

Keywords: weapons review, Article 36 of AP I, means and methods of warfare, compliance, historical origins