[Interview] Arms control law chair Thilo Marauhn: ‘We need to adapt current arms control law to address new political challenges’Published 28 February 2022
By Diva Estanto and Jasper Schellekens
Thilo Marauhn, a widely recognised expert in international law, is professor by special appointment of International Arms Control Law at Amsterdam Law School (University of Amsterdam). The Chair was established in 2021 on behalf of the T.M.C. Asser Instituut. Marauhn, who is seconded to the Hague-based Institute, focuses on innovative research in international arms control law. Marauhn: ‘Arms control law continues to be relevant, not because we as lawyers can solve the problem of arms control, but because we can provide the instruments that politicians can use to solve these problems.’ An interview.
What is the aim of your research at the Asser Institute?
‘The focus of my research is international arms control law. My position as the Special Chair of Arms Control Law was established on behalf of the Asser Institute, with support from the Ministry of Foreign Affairs of the Netherlands. Generally speaking, it is my view that international arms control law has lost too much of public support in the past decade, so it is one of my goals to make people aware of the relevance of the arms control field. In collaboration with political activists and government experts, I want to contribute to this field's potential to enhance international peace and security.
After the Cold War, many decision-makers - naively - believed in peace without caring too much about security threats, which - among others - led them to give up on a number of arms control agreements.
After the Cold War, many decision-makers - naively - believed in peace without caring too much about security threats, which - among others - led them to give up on a number of arms control agreements. The current debate about how to respond to the Russian Federation’s armed attack against Ukraine and governments’ failure to adapt arms control agreements illustrate two aspects of a single security problem. An example to this end is the Treaty on Conventional Armed Forces in Europe, also called the CFE treaty. It was negotiated during the last years of the Cold War and it was aimed at reducing the risk of a confrontation between the East and the West. Signed in 1990, the treaty proposed equal limits on conventional military equipment for the two ‘groups of states-parties’, the North Atlantic Treaty Organization (NATO) and the Warsaw Pact. If you think about the current situation between Ukraine and Russia, an adapted version of this treaty would have contributed to lessen tensions and to reduce the risks of armed conflict. However, the end of the Cold War led to the CFE Treaty and adaptation efforts running into a dead end, which ultimately led to the end of the treaty itself. Thus, not having such an instrument, with the escalating tensions between Russia and Ukraine, materialised the risk of war in the absence of preventive measures.’
Considering that you have many years of experience in this field, how do you see the field of arms control law changed throughout the years?
‘It has changed quite a lot, I must say, and I think that in order to address new political challenges it is necessary to adapt current arms control law again. During the Cold War, the arms control law field developed impressively, which is something that nobody would have expected. One of the best examples is the establishment of the Organisation for the Prohibition of Chemical Weapons (OPCW) here in The Hague, in 1993. The OPCW is the implementing body for the Chemical Weapons Convention, and oversees the global endeavour to eliminate chemical weapons. This was a positive change that emerged towards the end of the Cold War and the early years of the post-Cold War period.
Things started to dramatically change in 1995, especially if you think about what happened in Srebrenica and Rwanda. From that era onward, a lot of political changes happened. These changes were not clearly visible at first, but I grew up during the Cold War, so I could see that the change was really dramatic. However, in dealing with these changes, the international community just rested on the success of the past. It failed to adopt a realist approach to ensure that the arms control mechanisms which had been successfully installed, continue to work. For instance, the adoption of the Treaty on the Prohibition of Nuclear Weapons, which entered into force in 2021, illustrates that an increasing number of states is unhappy with the limited outcome of the old arms control mechanisms.
New weapons & technologies
It is necessary to adapt current arms control law to address new political challenges. This becomes even more important when you think about new weapons and new technologies. Today, there are autonomous weapons, cyber weapons, and even 3D-printed weapons. All this needs to be addressed, and the law must be adapted to new challenges, namely technological change.
Arms control law and international humanitarian law were only developed after something catastrophic had happened. Risk management is important for new technologies. One thing that I would like to do at the Asser Institute is to not only talk about prohibitions when we talk about arms control law, but also to approach this subject from a risk-based perspective. We can’t stop the emergence of new technologies, as knowledge will always expand. We will have to learn to make more use of risk-management scenarios in international law. Moreover, the human factor is decisive in deciding whether a technology is good or bad, it is not the technology itself.’
Due to these political changes, do you think that old treaties are still needed?
‘Yes, I believe these treaties are still needed, because we need the safeguards, in order not to fall back behind them. Apart from this, we can see that the current political climate is not conducive to negotiating new agreements. If you compare the speed with which we moved forward with treaties in the 1990s to what it is today, there has certainly been a decline in negotiating new treaties. If we want to move ahead, we should keep the old agreements as a baseline, as I think that renegotiating existing treaties is very complex and not very promising. However, adding something ‘on top’ of existing treaties, an agreement which modifies a treaty for instance, is feasible. When the United Nations Convention on the Law of the Sea was signed, for example, a lot of western states were unhappy with the chapter on the deep seabed. In light of this, they negotiated the ‘Implementation Agreement on Part XI’, which in effect changed the United Nations Convention on the Law of the Sea, but formally did not. It was labelled as an implementation agreement, but the document changes the overall structure of the chapter on the exploration and exploitation of the deep seabed. So, these legal techniques can be used to move forward, as we can add to something that already exists, rather than turning everything upside down.’
What is your view on the field of arms control law today?
‘Well, the situation and the facts are changing. In light of this, you will need to change arms control arrangements. Old instruments need to be adapted because otherwise, as time goes by, there will be bigger loopholes. I think that whereas states still are willing to cooperate to create new agreements, arms control law itself has become very unpopular, - not just among governments, but also among the people.
In the past, changes in arms control were pushed, to some extent, by the peace movement within civil society. Think, for example, of the role that peace activist and author Bertha von Suttner in the late 19th century played in laying the ground work for an international order based on law rather than war. And when you look at the Hague conferences of 1899 and 1907 - in which von Suttner was the only woman to participate - civil society was very important in designing the substance of what should be addressed. This important role of civil society can also be seen during the 1980s peace movement and in the campaign to ban landmines which led to the Ottawa Convention of 1997. The humanitarian movement was also the driving force behind the new Treaty on the Prohibition of Nuclear Weapons. Therefore, I believe in the role of civil society in promoting cooperation.
Today, I believe that activists still play a big role in advancing the field of arms control, although you would not find this on the front pages of the newspapers. But we now have more activists who actually bring cases that take up international law in national courts. I have been involved in a constitutional complaint in a case in Germany, for instance, which is directed against the use of targeted drones that were deployed by the United States during their counter-terrorism efforts in Yemen. The case was launched by an NGO, the European Centre for Human and Constitutional Rights in Berlin, in order to hold companies and states accountable for their role in aiding and abetting to civilian deaths in Yemen.
So, we can see that the ownership of international law is changing. In the past, ownership of international law lay with diplomats and a few professors. But nowadays, international law is in the hands of the people, and the people can bring cases to the courts. This is why I think arms control law continues to be relevant, not because we as lawyers can solve the problem of arms control, but because we can provide the instruments that politicians can use to solve these problems. And these instruments are essential if you want to proceed in a pragmatic way.’`
What do you think is the biggest challenge in the field of arms control? Would you say it's more of a political or legal challenge?
‘Well, I don't think you can move ahead if you approach arms control from a legal perspective only. In order to understand current military technological developments, for instance, you need the full spectrum of expertise in international law, and expertise from beyond the field. I strongly believe in collaborating with social scientists, for instance, which I've always done throughout my academic career. We need their policy framework and their analysis because we don’t have all of the tools. In the field of arms control law, we need to understand politics, but we also need knowledge of technology and engineering knowledge, et cetera. So I would say that the challenge is the need to involve several fields and get an interdisciplinary perspective. I am currently, together with a number of colleagues, working on a project in which we look at new weapons from a 360-degree perspective, from the perspective of law, technology, ethics and social science. Looking at new technologies from an overall and interdisciplinary perspective will help to actually move ahead.’
What is the importance of The Hague and the Asser Institute for the academic research on arms control law that you are currently doing?
‘First of all, the location of the institute in The Hague is ideal for my research, as the city is not only the place for the International Court of Justice or the International Criminal Court, but also the home of many other international organisations. Secondly, I believe one of the assets of the Asser Institute is that we focus on law, which helps in generating a distinct contribution to the field. This is something that would be really beneficial in the long run, for a number of reasons. First, if you want provide advice on arms control law, you must know what is already in place and what has been in place since some decades ago. Secondly, you must also be able to link arms control law to other branches of international law, because there are cross-linkages, and the Asser Institute works on a wide variety of international and European law branches. The 1980 Convention on Certain Conventional Weapons, for example, contains elements of international humanitarian law and elements of arms control law. Thirdly, you need interdisciplinary research to solve new challenges. At the Asser Institute we think about how the law can contribute to solving these challenges, for instance through discussing the role of the law in the field of intelligence. On this topic, we were recently awarded a grant from the Municipality of the Hague to start a mini programme for graduate students to enhance their knowledge in arms control. This programme will be an addition to the larger summer programme on arms control law that the Asser Institute and the University of Amsterdam are jointly aiming to launch soon. The idea is to establish a graduate school that will develop more expertise in the field. For this, I think The Hague is a great place to start.’
About Thilo Marauhn
Prof. Dr Thilo Marauhn is professor by special appointment of International Arms Control Law at Amsterdam Law School (University of Amsterdam), seconded to the Asser Institute in The Hague. In his research, Marauhn focuses on knowledge preservation, knowledge development and knowledge transfer in the field of international arms control law in the area of nuclear, chemical and biological weapons of mass destruction, Chemical Biological Radiological Nuclear (CBRN) security in general, and nuclear security in particular. This also includes the monitoring of compliance with arms control treaties and the concrete implementation of agreed arms control law obligations in the national legal sphere.
Thilo Marauhn is part of the Asser Institute’s research strand ‘Regulation in the public interest: Disruptive technologies in peace and security’ which addresses regulation to safeguard and promote public interests. It focuses, in particular, on the development of the international regulatory framework for the military applications of disruptive technologies and the arms race in conventional and non-conventional weapons. The public interest of peace and security serves as the prime conceptual framework in this strand.
Advance your knowledge on arms control law
The T.M.C. Asser Instituut has a long-standing experience in delivering postgraduate training programmes and disseminating knowledge in the field of international law. Together with partners from complementary fields, the institute delivers unique summer programmes in different areas of international law. Keep an eye out for more information on our upcoming summer programmes.
Not a love affair (2020) by Thilo Marauhn and Barry de Vries
Ever since the atomic bombings of Hiroshima and Nagasaki there have been consistent calls to ban the use of nuclear weapons and to negotiate complete nuclear disarmament. Over the years, numerous efforts have been made to reduce the risk of nuclear war, the effectiveness of which has been debatable. Read the full text.