3/10/2023 Persistence of Deadlocks at COP27: Viability of Employment of Traditional Knowledge and Indigenous Practices as Means to Food Security?Read NowThis is an editorial piece authored by Vaishnavi Salimath, third year student of law, and Tejas Sateesha Hinder, fifth year student of law, National Law Institute University, Bhopal.
Background According to a recent report by the Intergovernmental Panel on Climate Change (IPCC), agricultural productivity has decreased by 21% as a result of global warming, along with other factors like unfavourable weather patterns and deteriorating soil quality. This means that climate change continues to pose a threat to food security. This happens at a time when there is a greater demand due to an expanding global population, which includes an increase in the number of individuals who are hungry. The COVID-19 effect, increasing food prices globally, and supply-side pressure from the continuing crisis in Ukraine have only made matters worse. Although one of the main agenda items at the 27th Conference of Parties (hereinafter “COP27”) summit in Sharm el-Sheikh, Egypt, was food security, the roundtable discussion on November 7 only received a muted response and no significant announcements were made, which could have helped resolve one of the most important problems we are currently facing. The discourse however indicated at employing traditional knowledge and indigenous practices from indigenous groups in other countries can help mitigate the unfavourable situation. This brings to light the question of possible expropriation of cultural and religious rights of the indigenous people, whose practice would be employed by the international community in the process of ensuring food security. This article looks at the possible claims that could arise in lieu of such claims surrounding human rights, and attempts to deconstruct such claims, legally justifying the greater good. The conundrum of cultural and religious rights Incorrectness of a prospective human rights based claim States from whom traditional knowledge and indigenous practices are borrowed cannot claim as an injured State,[1] as human rights obligations are only owed to individuals.[2] Further, the ICCPR and ICESCR do not create obligations erga omnes partes between the parties.[3] This is limited to treaties that are intended to protect a collective interest.[4] Comparatively, the broad human rights treaties, as mentioned above, focus on States’ relationship with individuals.[5] Futher, religious and cultural rights are not erga omnes obligations owed to the whole international community.[6] That status only attaches to a narrow category of obligations.[7] There is insufficient State practice or opinio juris indicating that religious or cultural rights should be included in this category.[8] Article 2(1) of the ICCPR limits States’ obligations to individuals in their territory or subject to their jurisdiction.[9] While the ICESCR contains no equivalent provision, its scope is similarly limited.[10] ‘Jurisdiction’ is primarily territorial,[11] and only applies extraterritorially in exceptional circumstances.[12] Under the ICCPR, this has been when a State’s agent violates an individual’s rights when acting abroad,[13] or when the State has effective control over the other State’s territory.[14] These are situations of purposeful action outside the State’s territory — a limit consistent with the exterritorial application of the Convention on Racial Discrimination,[15] and the interpretation of specific rights by the Economic and Social Committee.[16] There is no basis to extend extraterritorial application to the current, incidental transboundary situations. Absence of speculative breach of cultural and religious rights The ICESCR recognises the right to cultural life.[17] While States have an obligation to facilitate and fulfil this right,[18] States using traditional knowledge is only obligated to take “appropriate” steps.[19] The ICCPR protects the freedom to hold a religion and the freedom to manifest a religion.[20] Religious rituals are part of the manifestation of religion.[21] However, this right is a “freedom”. It defends individuals from direct interference,[22] but does not impose further positive obligations on the State.[23] This interpretation is supported by the fact that other ICCPR rights, in contrast, expressly require active measures by the State.[24] Appropriateness allows consideration of other protected rights.[25] Food security is a humanitarian necessity, and providing such security is part of a State’s non-derogable minimum obligations.[26] Halt in food production will regress the right to health, which there is a strong presumption against.[27] Religious and cultural rights are validly limited Freedom to manifest one’s religion and the right to cultural life can be subject to limitations.[28] There are three requirements for justified limitations.[29] First, that limitations must be prescribed by law that is clear and accessible.[30] Second, limitations must be for a legitimate purpose, as prescribed by the relevant treaty. Food Security protects health globally. This meets the purpose of ‘public health’ under the ICCPR,[31] and promoting the “general welfare” under the ICESCR.[32] The final requirement is that the limitation is necessary and proportionate.[33] The largescale risk to the health of the public means that any possible hunting or cultivation laws meet this criterion.[34] Impending treaty obligations The Convention on Biodiversity and benefit sharing Article 8(j) deals with traditional knowledge. It uses qualified language; States are only required to act “subject to their national legislation” and only to “encourage” benefit sharing.[35] Accordingly, the provision does not impose substantive benefit sharing obligations for the use of traditional knowledge.[36] No other articles of the CBD impose applicable requirements, except under Art. 15(7) of the CBD only deals with benefit sharing for the use of the genetic resource. Customary international law requires “virtually uniform” state practice and opinio juris, belief their conduct is rendered obligatory.[37] Developments in benefit sharing norms in the indigenous rights field have been exclusively limited to misappropriated land or physical resources.[38] While benefit sharing for traditional knowledge has occurred, there is insufficient opinio juris. Benefit sharing requirements are established to be in conformity with the CBD regime, not because of a belief that a rule existed beyond this.[39] Examples outside the treaty’s scope are for non-legal reasons, such as media pressure,[40] or as an internal policy decision.[41] Moreover, States that act inconsistently and do not enforce benefit sharing are not considered in breach of international law.[42] Obligations of due diligence and equitable use Equitable use requires a balance between the State’s sovereign right, the interests of other States in the shared resource, and environmental protection.[43] Countries using traditional knowledge have a customary obligation to ensure that any activity within its jurisdiction did not cause significant transboundary harm to the country’s territory from whose tribal or primitive groups knowledge is being used.[44] A State has a sovereign right to exploit its resources pursuant to its own environmental policies.[45] However, States are required to act with due diligence in preventing significant transboundary harm resulting from activities in its territory.[46] This obligation is one of conduct, not result; hence countries using traditional knowledge are not required to prevent the harm in fact.[47] Sources: [1] International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), art 42(a); James Crawford, Alain Pellet and Simon Olleson (eds) The Law of International Responsibility (Oxford University Press, Oxford, 2010), 942. [2] HRC General Comment 31, [9]; HRC General Comment 24, [17]; Charles T Kotuby and Luke A Sobota General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (Oxford University Press, New York, 2017) p. 19, 106. [3] International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), ASR, art 48(1)(a); Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, [68]; Prosecutor v Blaškić (Judgment) ICTY Appeals Chamber IT-95-14, 29 October 1997 [26]. [4] Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422, [69]; Third report on State responsibility, by Mr. James Crawford, Special Rapporteur A/CN.4/507 (2000), [92]. [5] Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422. [6] Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) [1970] ICJ Rep 3, [33]; International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 53 UN GAOR Supp (No 10) at 43, A/56/83 (2001), ASR, art. 48(1)(b). [7] Christian J Tams Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, Cambridge, 2005), 117. This includes aggression, slavery, racial discrimination (Barcelona Traction, [34]), genocide (Armed Activities (Congo v. Rwanda), [71]), and self-determination (East Timor, [29]). [8] North Sea Continental Shelf Cases (Federal Republic Of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3, [74]. [9] Human Rights Council Analytical study on the relationship between human rights and the environment A/HRC/19/34 (2011), [69]; HRC General Comment 31, [3]. [10] Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel E/C.12/1/Add.90 (2003), [31]. [11] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, [109]; Al-Skeini and Others v The United Kingdom (55621/07) Grand Chamber, ECHR 7 July 2011 [131]. [12] Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [104]. [13] Human Rights Committee Communication No. 52/1979 Delia Saldias de Lopez v Uruguay CCPR/C/OP/1 at 88 (1984); Human Rights Committee Communication No. 56/1979 Lilian Celiberti de Casariego v Uruguay CCPR/C/OP/1 (1981). [14] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, [110]; Loizidou v. Turkey (15318/89) Grand Chamber, ECHR 18 December 1996, [52]. [15] Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation) (Provisional Measures) Order of 15 October 2008 ICJ Rep 353, [109]. [16] Committee on Economic, Social and Cultural Rights, General Comment No. 23 On the Right to Just and Favourable Conditions of Work E/C.12/GC/23 (2016), [70]; Committee on Economic, Social and Cultural Rights, General Comment No. 20 Non-discrimination in economic, social and cultural rights E/C.12/GC/20 (2009); Committee on Economic, Social and Cultural Rights, General Comment No. 19 The right to social security E/C.12/GC/19 (2018); Committee on Economic, Social and Cultural Rights, General Comment No. 14 The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (2000), [39]. [17] ICESCR, art 15(1)(a). [18] Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [6], [48]. [19] ICESCR, art 2(1). [20] ICCPR, art 8(1); Human Rights Committee, General Comment No. 22 Article 18 (Freedom of Thought, Conscience or Religion) CCPR/C/21/Rev.1/Add.4 (1993), [3]; Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir A/HRC/6/5 (2007), [10]; Heiner Bielefeldt, Nazila Ghanea-Hercock and Michael Wiener Freedom of Religion or Belief: An International Law Commentary (Oxford, United Kingdom, 2016), 22. [21] HRC General Comment 22, [4]. [22] For example, prohibiting prisoners from practising their religion (Boodoo v. Trinidad and Tobago; Poltoratskiy), making manifestations illegal (Malakhovsky v Belarus; Prince v. South Africa; Leven v. Kazakhstan), or directly interfering with natural resources used in religious rituals (Ogiek Decision, [166]). [23] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl, Germany, 2005) (2005), 411; Charles T Kotuby and Luke A Sobota General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes (Oxford University Press, New York, 2017), 22. See also ICJ Judge Sir Kenneth Keith’s comments in Mendelssohn v A-G, [14] and [16]. [24] ICCPR, arts 6(1), 17(2), 23(1), and 24(1). [25] Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [17]. [26] ICESCR, art 12; Committee on Economic, Social and Cultural Rights, General Comment No. 14 The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (2000), [43.d]; Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health A/61/338 (2006), [56]. [27] Committee on Economic, Social and Cultural Rights, General Comment No. 3 The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant) E/1991/23 (1991), [9]. [28] ICCPR, art 18(3); ICESCR, art 4. [29] Olivier De Schutter International Human Rights Law (2nd ed, Cambridge University Press, United Kingdom, 2014), 339. [30] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [17]; The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights adopted in Maastricht on 2-6 June 1986, [50]; Metropolitan Church of Bessarabia v Moldova (45701/99) Grand Chamber, ECHR 12 December 2001, [109]. [31] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [25]–[26]. [32] ICESCR, art 4. [33] The Siracusa Principles on the Limitations and Derogation Provision in the Covenant on Civil and Political Rights’ (1985) 7 Human Rights Quarterly 3, [10]; Committee on Economic, Social and Cultural Rights, General Comment No. 21 Right of everyone to take part in cultural life (art. 15, para 1(a), of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/21 (2009), [19]; Human Rights Committee, General Comment No. 22 Article 18 (Freedom of Thought, Conscience or Religion) CCPR/C/21/Rev.1/Add.4 (1993), [8]; Human Rights Committee, General Comment No. 31 The Nature of the General Legal Obligation Imposed on State Parties to the Covenant CCPR/C/21/Rev.1/Add.13 (2004), [8]. [34] Human Rights Committee Communication No. 1474/2006 Mr. Gareth Anver Prince v South Africa CCPR/C/91/D/1474/2006 (2007), [7.3]. [35] VCLT, art 31(1). [36] Patricia Birnie, Alan Boyle and Catherine Redgwell International Law and the Environment (3rd ed, Oxford Press, Oxford, 2009), pp. 627–628; Chidi Oguamanam International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity, and Traditional Medicine (University of Toronto Press, Toronto, 2006), 81; Michael Bowman and Catherine Redgwell (eds) International Law and the Conservation of Biological Diversity (Kluwer Law International, London, 1996), 266; Silke von Lewinski Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (2nd ed., Kluwer Law International, the Netherlands, 2008), 133; Francesco Francioni Biotechnologies and International Human Rights (Hart Publishing, Oxford, 2007), 206; Michelle F Rourke “Who are ‘Indigenous and Local Communities’ and What Is ‘Traditional Knowledge’ for Virus Access and Benefit-sharing? A Textual Analysis of the Convention on Biological Diversity and Its Nagoya Protocol” (2018) 25 JLM 707, 711–712. [37] North Sea Continental Shelf Cases (Federal Republic Of Germany v. Denmark; Federal Republic of Germany v. Netherlands), [1969] ICJ Rep 3, [74] and [77]. [38] Saramaka People v. Suriname, (2007) IACrtHR Series C No. 185, [138]–[140]. [39] OAU Model Law, Preamble; Andean Pact, art 5(1); Brazil: Law 13.123, art 5 XIII; IFPMA Guidelines, Objective. [40] The Hoodia Case (see Secretariat of the CBD (2008), 27). [41] Natura, Brazil (see, Secretariat of the CBD (2008), 79–82). [42] Certain Activities Carried Out By Nicaragua in the Border Area (Costa Rica v Nicaragua) (Compensation) [2018] ICJ Rep 1, [186]. [43] Pulp Mills on the River Uruguay (Argentina v Uruguay), [175]; Patricia Birnie, Alan Boyle and Catherine Redgwell International Law and the Environment (3rd ed., Oxford Press, Oxford, 2009), 202; Lilian del Castillo-Laborde Equitable Utilisation of Shared Resources (2010) MPEPIL (2010), [25]. [44] Trail Smelter Arbitration (United States of America v. Canada) (1941) 3 UN Rep Int'l Arb Awards 1905, 641; Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) [2015] ICJ Rep 665, [104]–[105]; Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [95], [97]. [45] Leslie-Anne Duvic-Paoli and Jorge E Viñuales “Principle 2” in Jorge E Viñuales The Rio Declaration on Environment and Development: Commentary (Oxford University Press, 2015) 107, [2.1.2.2]; Permanent Sovereignty Over Natural Resources UNGA Res 1803 (XVII) (14 December 1962). [46] Trail Smelter Arbitration (United States of America v Canada) (1941) 3 UN Rep Int'l Arb Awards 1905; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, [29]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, [430]; Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep, [187]; Respect to Activities in the Area (Advisory Opinion) [2011] Seabed Disputes Chamber ITLOS, [110]–[111], [223]; Advisory Opinion OC-23/17 (2017) IACrtHR Series A No. 23, [103]– [104]; International Law Association Study Group on Due Diligence in International Law: First Report (2014) 76 International Law Association Rep Conf 947, 974. [47] Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14, [187]; Respect to Activities in the Area (Advisory Opinion) [2011] Seabed Disputes Chamber ITLOS, [110].
1 Comment
This article is authored by Ahan Gadkari, a final year BA LLB Candidate at O.P. Jindal Global University. He also serves as a Research Assistant under Dr. Aniruddha Rajput, Member, United Nations International Law Commission.
Introduction In 2023, it will be 10 years since Lethal Autonomous Weapons Systems (LAWS) were put on the agenda of the meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons (CCW). Although the case of autonomous weapons had already been debated for several years, the arrival of the subject within the CCW marked the beginning of multilateral discussions conducive to the adoption of an instrument to regulate these controversial systems. After several informal meetings of experts, the State Parties agreed in 2016 on the creation of a group of governmental experts, also presaging regulation. This upcoming anniversary is an opportunity to take stock of the progress made by this forum and, in particular, the nagging question of a treaty capable of supervising LAWS. In this regard, it should be noted that the very definition of LAWS is a subject of debate within the CCW. In any case, a line has been drawn by several states between the so-called fully autonomous LAWS and the others. Fully autonomous LAWS target systems which, once activated, preclude human intervention and are capable of resorting to force or modifying the framework of their mission. Such systems coming under an internationally binding instrument are of utmost importance. This contribution seeks to discuss the question of whether a binding instrument of LAWS is a possibility by analysing the positions of States on this issue and the progress made by the CCW. Will an International Legally Binding Instrument be Possible? More than 30 States now support the adoption of an international legally binding instrument for the regulation and prohibition of LAWS. The majority of States that encourage such an initiative are fairly underdeveloped countries, in any case, militarily weak, which in reality would not have the means to develop or buy and therefore use such systems. It must be noted, however, the singular position of China which, unlike other major military powers, has come out in favour of a legal instrument prohibiting LAWS like the Protocol on blinding laser weapons. China, however, gives a very restrictive definition of LAWS that could be subject to a ban and it is a safe bet that the negotiations on the scope of the treaty would be stormy as Chinese interests on this point seem to diverge from those of the other States party to a treaty. In this crusade, these States benefit from the active support of many civil society organizations, including Human Rights Watch and the notable collective known as the “Stop Killer Robot” coalition, whose closing statement in the CCW strongly supported creating a treaty for LAWS. In addition, the International Committee of the Red Cross, a flagship body for the promotion and development of the law of armed conflict (LOAC), has also come out in favour of binding rules on the prohibition and limitation of LAWS. The question of the possibility of a treaty on LAWS is all the more worrying as the narrow window which would have allowed the opening of negotiations now seems to be closed. The 6th CCW Review Conference, an event which took place in December 2021, which aimed to evaluate and amend the text, was particularly awaited on the issue of LAWS regulation. The adoption of a mandate to open negotiations for a treaty on LAWS was fiercely discussed and supported by the majority of States Parties, but without success. The causes of this failure lie in the procedural rules of the forum which require adoption by consensus of decisions and declarations. Due to the need for consensus, the proposal was destined to fail, since States such as the United States, Israel, South Korea, United Kingdom and Russia have formally opposed such a mandate. The reasons for their refusal are multiple. The first argument regularly put forward is of a legal nature and seeks to consider existing norms of international humanitarian law (IHL) as sufficiently armed against the LAWS. The United States and Russia indeed argue that the existing law is sufficient and that it does not require new binding rules. It is true that, as is often the case in law, the IHL is based on general principles, the flexible and dynamic nature of which cannot be denied, making it possible to apprehend new phenomena. It is precisely the new and recent nature of the LAWS which establishes another argument, on the technical level this time. States believe that it is too premature to discuss new rules, as technology continues to evolve and rules adopted today may no longer be viable tomorrow or, worse, will hinder beneficial uses on the military or even humanitarian levels. Indeed, without being clearly stated, another reason for this refusal obviously lies in the operational advantages of LAWS, presumed to be decisive by these States. The United States did not hesitate to point out that military efforts to develop more precise and effective weapons reflect a convergence between military effectiveness and humanitarian protection. According to them, developing LAWS would allow for better military performance and therefore better IHL compliance. It would therefore be counterproductive to ban them. During the discussions of the CCW in 2022, whenever States decided to recall their desire to adopt a binding instrument relating to LAWS, the persistent opposition of major military powers stunted them immediately. The proposal to emancipate from this forum and bring this issue under the scope of another body has also been raised. Some have cited the role that the United Nations General Assembly (UNGA) could play on this issue, as it already does for cyber security. A recent joint statement on LAWS made by Austria at the 77th Session of the UNGA seems to indicate that the UNGA could assume this role. The possible involvement of the Human Rights Council was also pointed out, where the question first emerged in 2013 before migrating to the CCW. In addition, there are precedents where international civil society initiatives have led to the adoption of binding instruments in the field of arms control, such as the Anti-Personnel Mine Ban Convention and more recently in 2017, the Treaty on the Prohibition of Nuclear Weapons. The simple fact that no nuclear power is a state party to the Treaty on the Prohibition of Nuclear Weapons illustrates the limits of such processes in the face of the desires of the big military powers. What impact might an arms control treaty have if the States most likely to use the weapons in question are not party to it? Although limited in scope, this would exert some form of pressure on States that would develop and use LAWS. This objective is also pursued through the possible adoption of a code of conduct in this area. Possibility for a Code of Conduct? If the military powers refuse to lose the operational advantage that the possession of LAWS would constitute, they remain for some, anxious to preserve the image of States respectful of international law. Alongside the legal and political arguments intended to justify the refusal of a treaty, several States have proposed as a palliative solution the adoption of non-conventional concerted instruments, that is to say non-binding. As early as 2017, France and Germany submitted the idea of a political declaration and a code of conduct which would contain politically binding rules and a list of voluntary transparency measures. The adoption in 2019 by CCW Member States of 11 Guiding Principles on LAWS has concretized the objective of a political declaration which recalls the role of humans in the use of LAWS and the applicability of international law to them. As for the code of conduct, the Franco-German duo, accompanied by Finland, Norway, Sweden, Spain and the Netherlands, proposed via a working paper in 2022 the possible structure of such a document. On this issue, the United States has had a fluctuating position. While, in 2017, they declared themselves against this type of initiative, they proposed, during the 6th Review Conference, to reflect on a code of conduct to guide the development and use of LAWS, probably to temper the wave of States militating for the opening of negotiations on a treaty. The United Kingdom was also in favour of a document which recalls the applicable law and compiles good practices, giving as an example the Montreux Document on private military companies or the Wassenaar Arrangement on dual-use goods. These two instruments now bring together many States and have a certain authority in their respective fields. In a similar or parallel way, the United Kingdom presented in 2022 a model IHL manual aimed at applying the principles of this law to the specific case of LAWS, similar to the Tallinn Manual on cyber operations and the San Remo Manual on armed conflict at sea. IHL manuals are often doctrinal works to which few States fully subscribe. It will therefore be up to the States to specify the terms of a code of conduct which will determine its effectiveness in relation to the aims they are aiming for. However, one can wonder about the adoption of such a document in view of the different interpretations of the LOAC expressed by these States within the CCW. These divergences will probably lead to a smooth text limiting itself to recalling general points on the subject. Moreover, it will be interesting to examine the reception and adherence to such an initiative by States and civil society in favour of a treaty. Will they be satisfied with the little granted to them or will they refuse any alternative to a treaty? Not only this, the scope of this instrument is also uncertain. Germany indicated that it was about a first step towards a treaty, while this design is formally rejected by the United States. Although the methods of adoption, the content and the scope of the documents proposed by the States are very different, they express the desire of some to take up new phenomena on the international legal level without necessarily being legally bound since these documents are not binding. In this regard, they are criticized by Treaty States who believe that these documents are only meant for diversion. It would be a matter of appeasing civil society by showing an interest in respecting IHL and its values while retaining some leeway in the interpretation of this right. However, it is not certain that a State could brazenly flout what it would have subscribed to in such an instrument. Despite their flexible nature, these documents do not always win the support of the States most concerned. For instance, China and Israel did not join the Wassenar Arrangement. Therefore, if a code of conduct is possible, its regulatory effect is at most: uncertain. So what can the next decade offer us in terms of LAWS regulation? On the one hand, a treaty that will only be ratified by small powers, which will, in fact, probably not be able to regulate LAWS, but which will benefit from the support of international actors with strong legitimacy. On the other hand, a code of conduct, the fruit of the limited converging interests of a few major military powers which will not, however, engage their legal responsibility. Very meagre will therefore be the contributions of these initiatives in view of the goals they pursue and in comparison with other arms control instruments. Concluding Remarks A LAWS treaty will have few opportunities to be implemented and nothing can be imposed on States that have not consented to it. A code of conduct, on the other hand, will easily be understood as an act that is above all political and moral in scope. But from a more optimistic angle, could we not see in these normative gesticulations the actions of an international community, which recognizes and responds to an international social need, that of apprehending the LAWS to avoid an increase or a facilitation of violations of IHL while preserving the military interest provided by the technologies which contribute to these systems. Instead of polarizing discussions on the instrumentum, should more attention be paid to negotium. As such, a treaty or code of conduct may be in the process of constituting the opinio juris of future customary norms in the matter. |
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