1868 Saint Petersburg Declaration

The Saint Petersburg Declaration, adopted on  20 November (11 December) 1868, was the first formal international agreement to prohibit the use of a particular weapon ‘in time of war between civilized nations’. It applied a prohibition on the use of means or methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering to a specific weapon.

The Declaration followed the invention by Russian military authorities, in 1863, of a rifle bullet which exploded on contact with a hard surface and whose primary utility was to blow up ammunition wagons. A later modification of the projectile resulted in it exploding also on contact with soft substances, including human tissue, causing wounds far greater than those associated with non-explosive rifle bullets in use at the time. Concern that such injuries might go beyond what was needed to put an enemy soldier out of combat led Russian Emperor Alexander II to convene a conference to prohibit this type of projectile by international agreement.See, 'Mémoire sur la suppression de l’emploi des balles explosives en temps de guerre', C. Samwer, J. Hopf, Nouveau recueil général de traités, conventions et autres transactions remarquables, servant à la connaissance des relations étrangères des puissances et états dans leurs rapports mutuels, vol. 18, Librairie de Dieterich, Gottingue, 1873, 458.

Nineteen states — many of the recognised sovereign nation-states of the time — adhered to the Declaration.Estonia adhered in 1991.

The Declaration’s first paragraph reflects the fundamental understanding that ‘the necessities of war ought to yield to the requirements of humanity’ at specified ‘technical limits’. The Declaration outlines a number of principles that inform its weapon-specific prohibition:

• ‘the progress of civilization should have the effect of alleviating as much as possible the calamities of war’
• ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy’
• In order to weaken the military forces of the enemy, ‘it is sufficient to disable the greatest possible number of men’
• The employment of ‘arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable’ goes beyond the legitimate object of weakening the military forces of the enemy, and
• Consequently, the use of arms that have these effects are ‘contrary to the laws of humanity’.

In application of these principles, States Parties to the Declaration decided to renounce in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances. The weight limit (400 grams) is based on the weight of the smallest artillery shell available at the time. Whereas states parties considered explosive rifle bullets to be unacceptable, they were unwilling to relinquish artillery shells, deemed militarily useful against material and against groups of persons.F. Kalshoven, 'Wartime use of weapons: legal history, 1868 to 1934', 191(1985) Arms, armaments and international law, Collected Courses of the Hague Academy of International Law, Martinus Nijhoff Online, 207-8.

As was common in 19th century inter-state agreements seeking to limit harm inflicted on ones enemies, the Declaration was binding only on states parties in case of war among themselves. Participation in such a war of a state not party to the Declaration absolved all other states from respecting the Declaration’s provisions. Also, rules of the kind agreed in the Declaration were considered to apply only among ‘civilized nations’. The Declaration did, thus, not prevent States Parties from using prohibited projectiles against those excluded from that circle – colonised peoples, ‘barbarians’ or ‘savages’.Consider the ‘field experiments’ carried out by a British Major against mountain tribes in India, mentioned in F. Kalshoven, 'Wartime use of weapons: legal history, 1868 to 1934', 191(1985) Arms, Armaments and International law, Collected Courses of the Hague Academy of International Law, Martinus Nijhoff Online, 212. For a discussion of the exclusionary strand of early IHL, see, e.g., F. Megret, ‘From “Savages” to “Unlawful Combatants”: A Postcolonial Look at International Humanitarian Law’s “Other”’, A. Orford (ed.), International Law and its ‘Others’, Cambridge University Press, 2006, available at SSRN.

The Declaration is still formally binding on some states. Of more practical import is that the Declaration gave rise to a narrower prohibition, under customary international law, on ‘exploding bullets’. The Saint Petersburg Declaration also provides the first formulation of the prohibition on the use of means or methods of warfare that are of a nature to cause superfluous injury or unnecessary suffering, the so-called SIrUS rule, a norm of customary international law applicable in international and non-international armed conflict, and codified in Article 35(2) of 1977 Additional Protocol I.ICRC, Customary IHL Study, 2005, Rule 70.