I Take it Back. The Multilateral Treaty Exception Won’t Work for India and Pakistan, Because the RMI is Arguing Their Breach on the Basis of CIL, Not the TreatyPosted: April 24, 2014
Excellent points made by a commenter to my last post. So please belay/ignore my last post.
India and Pakistan May Successfully Argue Lack of the ICJ’s Jurisdiction in the Marshall Islands CasePosted: April 24, 2014
In both documents, there is an express exception to jurisdiction, relating to disputes concerning multilateral treaties, which of course includes the NPT.
In India’s declaration this exception is expressed as applying to:
disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction
In Pakistan’s declaration the exception is slightly different:
Disputes arising under a multilateral treaty unless
i) all parties to the treaty affected by the decision are also parties to the case before the Court, or
ii) the Government of Pakistan specially agree to jurisdiction; and provided further, that this Declaration shall remain in force till such time as notice may be given to terminate it.
You could try to draw some semantic distinctions between them, but ultimately I think they are saying the same thing, which is that India and Pakistan respectively, only consent to be a party in a case before the ICJ involving a dispute concerning a multilateral treaty, when all the other parties to the multilateral treaty are also parties to the case.
Assuming that is the correct interpretation of this jurisdictional exception, then India and Pakistan can probably persuasively argue that the ICJ cannot exercise jurisdiction over the suits brought against them by the Marshall Islands. That would leave the UK as the only state that would have to concede ICJ jurisdiction over the case against it, unless the FCO has some trick up its sleeve that I don’t know about! You can read the UK’s declaration here. I don’t see any similarly helpful exceptions to jurisdiction.
Marshall Islands Brings Lawsuits Against All Nine Nuclear Weapons Possessing States in the International Court of Justice!!!Posted: April 24, 2014
Wow!!! I just learned about this this morning. Apparently the cases were filed this morning with the ICJ. See the Guardian news story here. Here then are the legal documents themselves that have been filed, both in the ICJ and in US Federal Court.
I’m still looking through the documents, but it appears that the RMI has brought suit against all five NPT NWS, plus India, Pakistan, Israel, and North Korea, basically arguing that they are in violation of the NPT Article VI obligation to disarm. With regard to the non-NPT parties (India, Pakistan, Israel, NK) the memorials argue that the obligation in Article VI has passed into customary international law and is thus binding on all states. Wow.
I’m sure there will be much more to say about all this – I’ve been a bit blindsided by it. But at first blush, I would note a couple of things about the jurisdiction of the ICJ.
Of the states who are respondents in these actions at the ICJ only three of them – the U.K., Pakistan, and India – have accepted the compulsory jurisdiction of the ICJ. That means that the cases against the U.K., Pakistan, and India should be able to go forward procedurally. For all of the other states, including the U.S., for the ICJ to be able to exercise jurisdiction, the respondent state will have to give its ad hoc consent for the case to go forward. I’d say there’s just about zero chance that this will happen in any of the other actions. So at least on my first read through of the materials, it would appear that the three viable cases before the ICJ are the cases against the U.K., Pakistan, and India.
That’s all I’ll say for now. More to come!!
Yesterday I was privileged to visit Plant Farley, a nuclear power plant located near Dothan in south Alabama. The plant staff arranged for an extremely interesting and informational tour for us, and were very gracious hosts.
This was my first time actually visiting a nuclear power plant, and it helped alot to see the technology in action. Farley is a two-unit Westinghouse pressurized water reactor, so the most common type of reactor employed in the US. I got to talk to several of the operating staff and engineers and learned alot. It brought together, and filled some gaps in, all of the stuff I’ve read about nuclear power plants. It was thrilling to see the various parts of the complex in person – the cooling towers, the turbines, the control room, the diesel backup generators, the dry cask storage units for spent fuel. And they had useful models of a fuel assembly and the reactor core.
Part of the tour was the replica control room, an exact model of the actual control room used for training of operators. Here’s a picture of me “tripping” the reactor (at the direction of supervisor Randy Odom). As soon as I flipped the switch, the LED lights (above my hand) indicating the position of the control rods inside the core came down withing three seconds, indicating the control rods descending in between the fuel rods in the core and stopping the fission reaction. A really neat experience.
Could this report, being prepared by Iran, constitute the beginning of the resolution of the PMD issue regarding Iran’s nuclear program? As this piece reports:
Iran said on Monday it was drafting a comprehensive account of its nuclear activities, but did not indicate whether this would be made available to help the final diplomatic push to resolve a decade-old dispute with the West over the program.
The move could meet Western demands for greater transparency to address concerns that Iran may have been trying to develop a nuclear weapons capability, but Behrouz Kamalvandi, spokesman for Iran’s atomic energy agency, made no mention of this.
“There are various files on our atomic program, but we’re lacking a comprehensive document, which we are writing now,” the official IRNA news agency quoted Kamalvandi as saying.
Could the motivation for compiling this report be to then present it to the IAEA, in order to constitute Iran’s formal answer to the IAEA’s queries about past possible military dimensions to Iran’s nuclear program? As I’ve noted before, there seems to be a welcome air of pragmatism in some circles about de-emphasizing the PMD issue, and facilitating its resolution, as part of a comprehensive deal between Iran and the P5+1/IAEA.
The production of this report by Iran may be the first coordinated movement in that kabuki play, after which the IAEA and the West will, after some respectable time spent reviewing it, and possibly in concert with an additional coordinated inspection or two inside Iran, possibly at Parchin, declare that the report by Iran satisfactorily answers the IAEA questions. This then would be an extremely important step towards both sides being able to move past the PMD issue while saving face. The IAEA and UNSC demanded answers. Iran gave the answers. There was in the end no military dimension determined. Case closed.
Along with a resolution of the other facets of the negotiations – e.g. importantly the recent progress being made on the Arak issue – this could pave the way for the UNSC to pass a new resolution supplanting its prior resolutions and lifting its order that Iran cease uranium enrichment, and further and most importantly, lifting its sanctions on Iran.
Today is the 99th anniversary of the first massive chemical warfare attack. The agent of choice was chlorine. About 150 tonnes of the chemical was released simultaneously from around 6,000 cylinders over a length of 7 kilometres just north of Ypres. Lutz Haber—son of the German chemical warfare pioneer, Fritz Haber—described the opening scenes in his book The Poisonous Cloud (Clarendon Press, 1986):
The cloud advanced slowly, moving at about 0.5 m/sec (just over 1 mph). It was white at first, owing to the condensation of the moisture in the surrounding air and, as the volume increased, it turned yellow-green. The chlorine rose quickly to a height of 10–30 m because of the ground temperature, and while diffusion weakened the effectiveness by thinning out the gas it enhanced the physical and psychological shock. Within minutes the Franco-Algerian soldiers in the front and support lines were engulfed and choking. Those who were not suffocating from spasms broke and ran, but the gas followed. The front collapsed.
The impact of this gas attack surprised the German Imperial troops too. Their cautious advance behind the chlorine cloud, their hesitation in the confusion about what was happening despite having secured their initial objectives within an hour, and their halt after darkness fell meant that they almost immediately lost the strategic surprise. They would never regain it.
A first generation warfare agent in worldwide industrial application
How ironic it is that today, almost a century later, the latest chemical warfare allegations in the Syrian civil war concern chlorine once again. Everybody knows about the dangers of the chemical element, but nobody really considers it any longer as a militarily useful agent. At least not in standard warfare scenarios.
Chlorine and derived products are in massive industrial production. According to the World Chlorine Council, there are more than 500 chlor-alkali producers at over 650 sites around the globe, with a total annual production capacity of over 55 million tonnes of chlorine. Based on the low threat assessment and its wide relevancy to the chemical industry and trade, the Chemical Weapons Convention (CWC) does not even list it in Schedule 3 of toxic chemicals (Phosgene, another widely used chemical and World War 1 agent, is).
An oversight by the CWC negotiators? Hardly. Books on the toxicology and treatment of chemical warfare agents published between 1992—year of successful conclusion of the negotiations—and 1997—year of entry into force of the CWC—hardly mention chlorine. Chemical Warfare Agents, edited by Satu Somani (Academic Press, 1992), presents a few scattered references, mostly in relation to other agents or public health. Another book featuring the same title, written by Timothy Marrs, Robert Maynard and Frederick Sidell (Wiley, 1996), gives it a four-line acknowledgment in the opening historical section. And the monumental Medical Aspects of Chemical and Biological Warfare, edited by Frederick Sidell, Ernest Takafuji and David Franz (Office of the Surgeon General, US Army, 1997), accords it about two pages out of 721 in a subsection entitled ‘Historical War Gases’.
Back to World War 1
It goes without saying that during and after World War 1 perceptions of chlorine as a combat agent were quite different. Despite having been replaced by much more potent toxic chemicals, belligerents released chlorine gas until the final month of the war. Considering that the first contingents of the American Expeditionary Forces arrived in Europe in June 1917, but saw their first major military engagements in May/June 1918, the US War Department registered and examined 838 ex-service men who had been gassed with chorine (and survived their experience). A closer medical examination of 98 victims to assess the long-term effects of exposure suggests that all US chlorine casualties were affected between July and October 1918. It is interesting to note that Maj. Gen. Harry Gilchrist, Chief of the Chemical Warfare Service, and Philip Matz, Chief of the Medical Research Subdivision of the Veterans’ Administration, devoted half of their medical study, The Residual Effects of Warfare Gases (War Department and US Government Printing Office, 1933), to chlorine, mustard being the other agent of their investigation.
Their description of chlorine remains interesting, because it departs from its utility as a warfare agent, rather than as a public health hazard. The element is almost 2.5 times heavier than air, which means that it will cling to the surface and sink into depressions. At 15° C liquefaction requires 4-5 atmospheres pressure. Upon release at 25° C, one litre of liquid chlorine will yield 434 litres of chlorine gas. Moisture stimulates the element’s chemical action, so the liquid gas must be thoroughly dehydrated for storage in steel cylinders.
Concentration and length of exposure both play a role in the physiological action of chlorine and their effects on humans and animals. The authors noted that ‘a concentration of 1–100,000 of chlorine gas is noticeable, 1–50,000 may cause inconvenience, while a concentration of 1–1,000 may produce death after exposure for five minutes’. (The numbers correspond to 0.01 mg/ml; 0.5 mg/ml and 1mg/ml respectively.) Experimental studies on dogs (carried out to determine the types of lesions various concentrations of chlorine will produce) showed that the animals died within 72 hours from acute effects at concentrations of 2.53 mg/l and higher. These concentrations were labelled as lethal. A small percentage of the animals recovered within a week. A concentration of 1.9–2.53 mg/l increased the recovery rate markedly, whereas dosages below the 1.9 mg/l were rarely fatal. Recovery rates were markedly faster at lower concentrations.
Concentrations required for injury and death are relatively high. For comparison, in the section on mustard (dichlordiethyl sulphide) Gilchrist and Matz deemed this oily compound to be 50 times more toxic than chlorine. It can be deadly in concentrations from 0.006 to 0.2 mg/l, but they considered 0.07 mg/l at an exposure of 30 minutes to be the lethal concentration.
Rewind to March 2013
Syria, just like any other country with a relatively advanced chemical industry, produced chorine in large quantities before the civil war. Readers will recall that early reports of chemical attacks at Khan al-Assal, west of Aleppo, in the middle of March of last year mentioned a strong smell of chlorine. To the east of Aleppo, there was a chlorine production facility (which the Jubhat Al Nusra, a jihadist rebel group ideologically similar to Al Qaeda, reportedly took over in December 2012). However, accounts also mentioned scores of fatalities, which would be inconsistent with a chlorine-filled rocket warhead. I have always been sceptical about those claims, precisely because of the agent’s chemical properties and physiological action. At the time, descriptions did not fit the claimed agents, whichever these might have been.
The need to compress the agent into a liquid has ramifications for delivery: the container must be sufficiently strong to withstand several atmospheres of pressure, and if dropped from an aircraft, sufficiently thin for the skin to break open. It must also be large enough so that a lethal concentration can be built up for a sufficiently long time. Given that humans smell chlorine at very low concentrations, the chances that they will remain at the site of impact are remote. The element is also not colourless; in fact, its name derives from the ancient Greek ‘khloros’, meaning pale green.
The same goes for rocket delivery of the warfare agent. Shells were attempted during World War 1, but this method for chlorine discharge was quickly abandoned in favour of much more potent munition fillings, such as phosgene.
So, it would be good to get more details on the recent incidents and review them in the light of possible chlorine delivery. Please note that I do not deny the possibility of toxic incidents over the past few weeks, but I would just like to see the various facts reconciled with the claimed chain of events. Given that Russian Foreign Minister Sergey Lavrov and French President François Hollande have once again waded into the controversy, politicisation of the ‘truth’ cannot be far away, alas.
Back to where it all started
So, as we reflect on that fateful 22 April in 1915, the sad thought is that chlorine is back, or at least, that people feel that chlorine is back as a possible lethal combat agent.
Allegations fly, but if confirmed, the incidents would be the first acts of chemical warfare committed involving a state party to the CWC. If Syria’s accusation of insurgent use is correct, then the government has every opportunity to demand an investigation from the OPCW and request assistance. If the insurgents’s claim of government use is correct, as non-state actors they cannot request the OPCW anything. However, any state party to the convention can demand an investigation of alleged use by the OPCW, and the Syrian government has no right of refusal (Verification Annex, Part XI). The opposite would be a serious material breach of its treaty obligations and tantamount to an admission of guilt. Or, the states parties can determine that the claims are insufficiently substantiated to warrant an investigation. In which case, it would be nice if they all were to sing the same tune.
So, which way shall the international community have it? The principal long-term casualty of those political games might be the CWC, even though, admittedly, we are still far away from the death knell that 22 April 1915 sounded for the 1899 Hague Declaration (IV, 2) concerning asphyxiating gases.
Several recent reports have suggested that because chlorine or other toxicants, such as riot control agents or incapacitants, are not listed in one of the schedules, they are not covered by the CWC. This is a major error. Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals is a chemical weapon, according to Article II of the CWC. This is the default position. There are only four categories of purposes (Art. II, 9), under which a toxic chemical would not be considered a weapon.
. . . is what this would be if it was actually adopted as policy by the NSG. I’m talking about a Dutch paper, sponsored by the US, UK and the Czech Republic, and submitted to the NSG meeting a couple of weeks ago, which proposed that the NSG take a more “open-minded approach aimed at cooperation with non-NSG members and promoting transparency of the NSG guidelines.” According to our favorite nuclear reporter Fredrik Dahl:
The discussion paper, seen by Reuters, outlined different types of “possible benefits the NSG could consider granting” a country that is adhering to its trade guidelines even though it is not in the secretive 48-nation grouping.
These could include sharing of information, access to NSG meetings and “facilitated export arrangements”, suggesting possible access to some nuclear trade with NSG countries, for example related to safety.
Currently, Israel is the only non-NSG country that fulfils the criteria regarding “adherence” to its guidelines although India and Pakistan have informally indicated that they also follow them, the Dutch Foreign Ministry document said.
So, under this new and improved approach, India, Pakistan and Israel, at least, would likely be promoted to receiving most if not all of the substantive benefits of membership in the NPT – including most importantly civilian nuclear trade with NSG supplier states. So we would go from one travesty – the India exemption already granted by the NSG in 2005 – to at least three and maybe more.
Again, these would be states that have not signed the NPT, but have clandestinely developed nuclear weapons stockpiles on their own. And under this proposal, they would be granted by NSG supplier states, nuclear trade access which the 157 NNWS parties to the NPT had to give up their legal privilege to possess nuclear weapons in order to secure.
Is this a game of how far can we push NPT NNWS before they will finally be convinced that the NPT grand bargain is dead, and that they are upholding their NPT obligations and tacitly consenting to a system of nuclear apartheid for nothing?
This isn’t how Mark Hibbs sees it. Mark seems to think this is a fine idea. In the article he’s quoted as follows:
Nuclear expert Mark Hibbs said such an acknowledgement by the NSG would be important for Israel. “It would be a recognition from a very important nuclear non-proliferation related body that Israel is a responsible nuclear state,” Hibbs, of the Carnegie Endowment think-tank, said.
That’s not the point, Mark. Responsible or not, you can’t undermine one part of the grand bargain of the NPT without expecting the other parts to fall down too.