A Response to Laura Rockwood

Laura Rockwood, the former longtime head of safeguards at the IAEA Office of Legal Affairs, has a new article out in Arms Control Today entitled “The IAEA’s State –Level Concept and the Law of Unintended Consequences.”  When I read the piece last week I was surprised at how thoughtful and rigorous the analysis was. I don’t mean this as a slight to Laura personally.  I mean that I’ve gotten used to so much of the writing in arms control literature on international law and safeguards subjects being quite superficial and conclusory, without much supporting legal analysis (see, e.g., this recent piece by Persbo and Carlson).

But apparently, now that Laura is retired from the IAEA and has taken up a position at the Belfer Center, she has found the time to provide a much more thoughtful and thorough analysis in this paper of her view of the IAEA’s legal authority under the INFCIRC/153 comprehensive safeguards agreement (CSA).

While the title of the piece focuses on the IAEA’s state level safeguards approach, something I’ve written about here, Laura actually spends about half of the piece arguing a related and more fundamental point; i.e. that under the CSA alone, the IAEA has the legal authority to investigate and assess both the correctness and the completeness of a safeguarded state’s declaration. Readers will know that this is a subject I have written a lot about in the past.

While, again, I welcome Laura’s thoughtful piece on this question, I have to disagree with her in her analysis and conclusions.  Essentially, Laura is making a revisionist argument about the legal authority of the IAEA under the CSA; a view that has its origin in the aftermath of the 1990-1991 Gulf War, and has been championed by the United States in the IAEA Board of Governors since that time. Laura Rockwood has become the chief public apologist for this argument, which goes against the common understanding of the legal authority of the IAEA, held by IAEA officials and states for the first two decades of the CSA’s existence.  And, as she laments in her new piece, but which I find encouraging, many states are still unpersuaded by it.

As well they should not be.

Read the rest of this entry »


The Ferguson Social Unrest and the Use of Tear Gas: Some Thoughts from the European point of view

I’m very pleased to host another guest post from Dr. Daniel Rietiker.  This time Daniel provides a very interesting comparative insight into how the European Court of Human rights has approached the issue of the use of tear gas for riot control purposes.  I thought this analysis was particularly useful and interesting being at the juncture of arms control law and international human rights law.  I think this is an area that could be more thoroughly explored in scholarly literature.

 

The Ferguson Social Unrest and the Use of Tear Gas: Some Thoughts from the European point of view

Daniel Rietiker, PhD

Introduction

On August 9, 2014, Michael Brown, an unarmed African-American, was fatally shot by a white police officer in Ferguson, Missouri. The incident was followed by heavy protests and civil unrest that lasted for weeks. The local police responded by using non-lethal weapons and tear gas. These tragic events raise various questions of international law. Probably the most relevant question for arms control lawyers is whether the use of tear gas by the police in the aftermath of the shooting in response to the protests was adequate and legitimate. The European Court of Human Rights (hereafter : ECtHR) has a well-established practice in the field of riot control, including the use of tear gas, that will be briefly explained here. A more comprehensive study on the interplay between arms control and human rights will be presented by this author in a forthcoming publication.

[the following observations, as far as they concern case law, are based on the ECtHR’s legal summaries that can be found on the Court’s website:

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#%5D

The lawfulness of riot control measures, in particular the use of tear gas, in the light of the jurisprudence of the ECtHR

It can be recalled that under the Chemical Weapons Conventions (hereafter: CWC), “law enforcement including domestic riot control purposes” are considered “purposes not prohibited” under the convention (Article II.9.d CWC). Moreover, Article I § 5 CWC stipulates that States Parties undertake not to use riot control agents as a method of warfare. The practice of the ECtHR in numerous cases in particular against Turkey in respect of the use of tear gas to counter potentially violent demonstrations reflects this logic. The Court examines these cases, inter alia, in the light of Article 3 of the European Convention on Human Rights (hereafter: “ECHR”), that reads as follows:

Article 3: Prohibition of torture:
No one shall be subjected to torture or to inhuman and degrading treatment or punishment.

Article 3 ECHR constitutes one of the cornerstones of the human rights protection and democratic society in Europe. It flows from its unqualified terms that this provision contains an absolute guarantee. Moreover, it cannot be derogated from in time of war or other public emergency (Article 15 § 2 ECHR). In other words, the States do not enjoy any margin of appreciation under Article 3, but have to refrain from inflicting the prohibited treatment in all circumstances, even for the highest reason of public interest.

The ECtHR interprets and applies exclusively the ECHR. It is not the guardian of other international treaties, such as the CWC. On the other hand, the Court does not interpret the ECHR in isolation, but in harmony with other applicable “relevant rules of international law”, as required by Article 31 § 3 c) of the 1969 Vienna Convention on the Law of Treaties (CVDT). Therefore, it is not surprising that the Court, in the examination of a possible violation of Article 3 by the use of tear gas, refers to the CWC, expressing its point of view in the following terms (Oya Ataman v. Turkey, no. 74552/01, Judgment of 5 December 2006):

17. Under Article I § 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), each State Party undertakes not to use riot control agents as a method of warfare. Tear gas or so-called “pepper spray” are not considered chemical weapons (the CWC contains an annex listing the names of prohibited chemical products). The use of such methods is authorized for the purpose of law enforcement, including domestic riot control (Article II § 9 (d)). Nor does the CWC state which State bodies may be involved in maintaining public order. This remains a matter for the sovereign power of the State concerned. The CWC entered into force with regard to Turkey on 11 June 1997.
18. It is recognized that the use of “pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the suprarenal gland).

It derives from these paragraphs that, in situations of riots, protests and social unrest, the appropriate use of tear gas can be a justified and proportionate use of force and therefore turn out to be compatible with Article 3 ECHR. Nevertheless, the Court has found violations of this provision as a result of an unclear legal provisions authorizing tear gas or in cases where the law-enforcement authorities had made improper or unnecessary use of tear gas (substantive limb of Article 3) [see, for instance, the case Abdullah Yaşa and Others v. Turkey, no. 44827/08, 16 July 2013, where the applicant had been injured in the nose by a tear gas canister fired by a police officer; his injuries had unquestionably been serious enough to meet the threshold of Article 3 ECHR].

Moreover, even though the threshold of Article 3 is generally not met by the appropriate use of tear gas, the authorities are still under a procedural obligation to conduct an in-depth investigation into alleged violations of human rights (formal limb of Article 3 ECHR). Under this duty, the State has to conduct a satisfactory investigation allowing the accurate establishment of facts, as well as the identification and prosecution of the officers responsible for acts amounting to ill-treatment in the sense of Article 3 ECHR.

It is also noteworthy that in some instances, the Court referred to another human rights body, namely the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), that had repeatedly expressed concerns over the use of tear gas in law-enforcement situations and urged the States to adopt clearer directives in national law on that subject. This was also the case in the recent judgment İzci v. Turkey (42606/05, 23 July 2013), where the Court, unanimously, found violations of the substantive and procedural aspects of Article 3 of the ECHR by the use of disproportionate force and lack of an effective investigation, and besides a violation of Article 11 on account of the failure to respect the applicant’s right to freedom of assembly. In this case, the applicant had taken part in a demonstration in Istanbul to celebrate Women’s Day which had ended in clashes between police and protesters. Video footage of the events showed police officers hitting a large number of demonstrators with truncheons and spraying them with tear gas. Women who had taken refuge in shops were dragged out by the police and beaten up. The police officers had not issued any warnings to disperse demonstrators before attacking them and the demonstrators, for their part, had not tried to respond to the attack but had only tried to flee.

This case is a typical example for the repeated violations of the ECHR that occur in demonstrations in Turkey. What is remarkable about this case is the fact that Court considered these problems as “systematic”, reiterating that it had already found in over 40 judgments against Turkey that the heavy-handed intervention of law-enforcement officials in demonstrations had amounted to a violation of Article 3 and/or Article 11 ECHR. The common feature of these cases is the unwillingness of the police forces to show a certain degree of tolerance towards peaceful gatherings and, in some instances, the precipitate use of force, including tear gas. Moreover, in over 20 of the judgments, the Court had already observed the failure of the Turkish authorities to carry out effective investigations into allegations of ill-treatment by law-enforcement personnel during demonstrations. It further stressed that 130 applications against Turkey concerning the right to freedom of assembly and/or use of force by law-enforcement officials during demonstrations were currently pending.

Considering the perspective that generally prompts the procedure with a view of implementing the final judgments, combined with the Court’s clear message in the İzci case, there is hope that the Committee of Ministers of the Council of Europe (CoE) – the body responsible for the supervision of the implementation of the ECtHR’s judgments (Article 46 ECHR) – will impose on Turkey strong measures, such as an order to review national legislation and to train the members of the police in order to comply with Article 3 in law-enforcement situations including the use of tear gas.

Conclusions

It goes without saying that the cases mentioned above are not identical to the circumstances of the unrest in Ferguson following the shooting of Michael Brown, nor is the legal framework for the use of force by the police the same. In the European context, a very high standard applies, both on the substantive and the formal (procedural) level. As far as the latter is concerned, and taking the Ferguson events as example, the investigating authority would have to establish what really happened in the aftermath of August 9, 2014, and it would ultimately incumbent on the judges to decide whether the force used by the police to counter the riots, including the use of tear gas, was in line with the applicable law and the state of art in this field. Such a thorough international scrutiny, based on a well-established practice by the ECtHR, does not exist in the United States.

(Daniel Rietiker, PhD, Lecturer in international law, University of Lausanne, Swiss Member of the ILA’s International Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law and Visiting Fellow at the Human Rights Program of Harvard Law School, spring/summer terms 2014).


IAEA Director General to Punt the Iran PMD Issue to the Board of Governors

Have you seen this new Bloomberg article by Jonathan Tirone? I’m almost dumbstruck by it.  In it he reports:

Investigators probing Iran will let national officials from places including the U.S., China and Russia decide if the Persian Gulf country hid a nuclear weapons program, according to two officials familiar with their work.

The International Atomic Energy Agency’s inspection team will likely have to make an assessment based on incomplete information and let its board of nationally-appointed governors draw definitive conclusion about the country’s past nuclear work, said the two senior international officials, who asked not to be named because the information isn’t public. . .

It isn’t realistic to expect the IAEA to provide a black-and-white assessment showing that Iran either did or did not have a nuclear-weapons program, the officials said. The IAEA will set a time to end the investigation and submit its findings to the 35-member board of governors to make a ruling, they said.

I almost don’t know where to begin on this. As readers will know, I’ve long been critical of the IAEA’s decision to investigate allegations, mostly originating from third party states, of past possible military dimensions (PMD) to Iran’s nuclear program, and the November 2011 IAEA DG report that most comprehensively laid out these allegations.  I published this commentary on the report the day after it was sent to the BOG.  Since then I’ve written on the issue several times, including here, and have tried to explain that the IAEA has absolutely no mandate or authority to investigate and assess whether safeguarded states have done research and development work on nuclear weaponization not involving fissile materials.

Notwithstanding this lack of legal authority and, as Bob Kelley and Tariq Rauf point out in their new article in Arms Control Today, a lack of technical expertise to assess nuclear weaponization R&D as well, the IAEA has proceeded over the past three years to gather what information they could about the PMD claims, and has tried to engage Iran on this issue, with little success.

It’s never been clear to me what DG Amano’s game plan was on the PMD issue – i.e. how he thought the investigation would realistically play out, and what he thought would be achieved through it.  Again, there is no legal source that lays out the IAEA’s authority and tools for investigating nuclear weaponization, so there are no standards for the agency to follow.

It now appears that the final chapter of the IAEA’s PMD inquiry in Iran will consist of the IAEA DG’s office handing over whatever technical information they have, however incomplete, to the national political representatives who constitute the 35 member Board of Governors of the IAEA, and asking them to determine whether Iran worked on nuclear weaponization in the past.

If that sounds kind of crazy to you, then you’re not alone.

Again, I don’t think the IAEA should have ever started down the path of investigation and assessment on this issue, but given that they have, surely it must be recognized that this is essentially a technical matter – i.e. whether there is sufficient evidence of a nuclear weaponization program in Iran in the past. It is not a political matter. How, then, are the political representative of 35 countries on the IAEA BOG qualified in any way to make this determination?

This seems to me to be a complete cop-out – a surrender by the IAEA DG’s office. Whether it’s a surrender to facts (i.e. the DG’s office doesn’t have, and knows it never will have, enough information to really make the call technically, and is afraid to admit it) or a surrender to politics (i.e. the US and others are pressuring Amano to get the PMD issue resolved, and this is the only way to face-savingly do it) or more likely a combination of both, this can’t be the way Amano hoped this PMD inquiry would be resolved. Although, again, I don’t know what his plan was to begin with.

This is a punt – a buck passing, plain and simple. And even though the IAEA should never have gotten involved in this issue in the first place, this sets a very bad precedent for the agency going forward. The IAEA DG’s office is basically admitting that they cannot do their job of making a technical determination here, and they are instead punting the issue over to the BOG for a politicized vote. What does that say to IAEA member states about the IAEA’s ability to objectively apply technical safeguards to their nuclear programs, and about the independence and apolitical nature of the agency?

If this vote does indeed go ahead in the IAEA BOG, no matter what the outcome I think it will be one of the darkest days in the agency’s history. And I think that DG Amano is solely responsible for the black eye the agency’s reputation will take from this ill conceived, and badly executed foray into weaponization investigation.


Paul Pillar on Israel’s Kumquats

I just have to plug Paul Pillar’s new piece over at the National Interest entitled “Israel’s Nuclear Weapons: Widely Suspected Unmentionables.”  It’s a great piece, and I love his use of code language. Lots of great quotes, including this one:

Arms control also is at least as important to U.S. interests as to Israel’s, at both regional and global levels. Regionally, proposals for a Middle East nuclear-weapons-free zone (or in some variants, a weapons-of-mass-destruction-free zone) are worth discussing, however much realization of such a goal will depend on resolution of political conflicts that will determine the willingness of regional states to give up whatever weapons they currently have. Any such discussion will be a feckless charade, however, as long as neither Israel nor the United States will say anything about kumquats.

That the United States is so out of step on this subject with the rest of the world is taken by the rest of the world as one more example of double standards that the United States applies to shield Israel. Even further, it is taken as not just a double standard but living a lie. Whatever the United States says about nuclear weapons will always be taken with a grain of salt or with some measure of disdain as long as the United States says nothing about kumquats.

The issue of Iran’s nuclear program, negotiations on which will be coming to a climax this fall, is highly germane to this problem. We have the spectacle of the government of Israel being by far the most energetic rabble-rouser on the subject of a possible Iranian nuclear weapon, to the extent of repeatedly threatening to attack Iran militarily. Some might call this irony; others would call it chutzpah. Anyone would be entitled to say that any state that not only refuses to become a party to the Nuclear Nonproliferation Treaty (NPT) or to subject any of its nuclear activities to any kind of international inspection or control but also already possesses kumquats or their equivalents has no standing to conduct such agitation about Iran, which is a party to the NPT, has already subjected its nuclear activities to an unprecedented degree of intrusive inspection, and is in the process of negotiating an agreement to place even further limits on its nuclear program to ensure it stays peaceful.

I like this last sentence particularly, as it mirrors what I wrote about Israel’s position regarding other states’ nuclear programs in a piece here last year:

If I put myself in the shoes of Israeli officials, I totally understand why Israel wants to have nuclear weapons, doesnt want to sign the NPT, and wants to keep the whole thing “in the basement.” If I were an Israeli official, with the history of the Holocaust as my personal and national context, I would do the exact same thing. But here’s where I think Israel’s policies in the nuclear area start to get indefensible – when they criticize other countries for wanting their own nuclear weapons, or for even doing research to build up their capability to one day acquire nuclear weapons if they decide they need them.  This is just basic hypocrisy, and the absence of any principled leg to stand on. It doesn’t have anything to do with history, or with Israel’s unique perspective on the world.  And I really don’t like it when people say, well, Israel isnt under a legal obligation not to have nuclear weapons, whereas these other countries are.  Israel’s failure to sign the NPT, and the West’s willful blindness toward this fact, are not a diplomatic asset that Israel and the West can play as a card to justify the double standard.  In this regard, Israel is part of a rather ignominious club of regime outlier states – rogue states if you will – that also includes India, Pakistan and North Korea. Its not a moral high ground fact.


Supplementary Document to the IAEA DG’s 2013 Report on the State Level Safeguards Approach

IAEA State Level Safeguards Document August 2014

A friend has sent me this new report by the IAEA DG, which supplements and fleshes out the initial DG report on the State Level Safeguards Approach (SLSA) that was released last summer, and which I posted on ACL here.  This new report gives more information on the nuts and bolts of how the SLSA is to be implemented. I think it should be interesting reading, and I invite comments.

Last summer I wrote a fairly lengthy piece here in response to the original report, which this now supplements.  You can read that piece here.  I basically still think the same thing about the overall program. As I said then:

The state level approach overall seems geared to reduce the attention the IAEA pays to “good states,” i.e. those for whom a broader conclusion has been reached, and instead focus the IAEA’s scrutiny on a list of “suspect states.” The means by which states get added to the “suspect” list would appear to be susceptible to a considerable degree of subjectivity and politicization. But once you’re on the naughty list, the IAEA will essentially assume your wrong intent and then follow up methodically on every possible way in which you might even potentially go about developing a nuclear weapon – even if there is no evidence that you are trying to do so or have ever tried to do so – and monitor those pathways constantly, requiring your complete cooperation with whatever invasive and subjectively determined processes and standards of investigation and assessment the BOG determines to be necessary in your specific case.

Can you imagine any of the NWS/P5 EVER consenting to such discriminatory, intrusive and subjective investigation and assessment standards being applied to them? Neither can I.


Marshall Islands Lawsuit in US Federal Court Update

Hat tip to Maya Brehm for sending me this link, which gives some updates on the RMI’s lawsuit against the US, in US federal court, which is a counterpart to its suit against the nine nuclear weapons possessing states in the ICJ. At the link, you can find the RMI’s lawyers’ submission in opposition to the government’s motion to dismiss. For the non-lawyers out there, it is typical for a defendant to make a motion to dismiss a case early on, in the hopes that the court will decide that the plaintiff’s suit is so lacking in merit, even on its face, that it should be dismissed so as not to waste the court’s, and the defendant’s, time. So that’s where the proceedings are at the moment, and if the government wins the motion to dismiss, the case is over.

I haven’t seen the government’s submission supporting its motion to dismiss, but you can make out from the RMI’s submission in opposition some of the issues that were raised by the government. And indeed, these and others were anticipated beforehand by observers.  US constitutional and federal courts law is by no means my specialty, but I think the biggest hurdles that have always existed for this case are:

1. Sovereign immunity – basically you can’t sue the federal government without either its explicit or implied consent. That’s federal courts 101.  Usually you find this consent in a statutory cause of action. But none exists here. I haven’t seen any arguments by the RMI’s legal team that persuasively overcome this hurdle. 

2. It looks like the RMI’s legal team are putting a lot of stock in their assertion that the NPT is a self-executing treaty. They obviously haven’t read the US Supreme Court’s 2008 Medellin case, which effectively created a presumption against treaty self-execution in US federal law. As I read Medellin, the NPT doesn’t even come close to the standard that the court will look for in order to find the treaty self-executing. And since there was never any implementing legislation for the NPT in the US, that avenue is foreclosed as well.

The US federal court aspect of the RMI’s cases has always struck me as strange, and the more I learn about it, the more ridiculous it seems. I strongly suspect that the court will grant the government’s motion to dismiss.

And from what I can see of the lawyering of the RMI’s US federal court legal team in this case, I stand by the concern I expressed here previously about the parallel effort in the ICJ. 


Some Reflections on the Point of it All

Sorry for the radio silence lately. I taught a short course at the University of New South Wales in Sydney a few weeks ago, and now classes have started back in here at Alabama.  Fortunately, Jean-Pascal has done some excellent posts in the interim.

I suppose I’ve also been doing a lot of thinking lately about my professional life – maybe I’m having a mid-career crisis. I probably am. The “what’s the point of it all?” type of questions.

I wonder at times if the costs and frustrations of doing this blog, and trying to engage with communities outside of the international law scholarly community, are producing enough utility and benefit to justify them.

It’s quite clear that the nonproliferation “expert” crowd in NGO’s and think tanks in the US is not interested in meaningfully engaging with me on issues of nuclear energy and nuclear nonproliferation law. They consistently circle their wagons and reference each other’s superficial and often erroneous legal analyses, in order to reassure themselves and others that my views are marginal and “in the minority,” so they don’t have to engage with them seriously.

That goes hand in hand with another problem – the lack of a robust field of international legal scholars working in arms control law. There are certainly some excellent people working in the field, and a number of them write for this blog. But compared to other specialized areas of international law, there are still very few of us. This means that there is not in this area the kind of healthy, collegial exchange of ideas and analysis, at a deep and rigorous scholarly level, through books and law journal articles, as there is in other areas of international law.  If there were, it would be easier to point to others in the scholarly community writing in this area, to provide support for serious international legal analysis of arms control law sources, which would hopefully help to convince the NGO types of the superficial and erroneous nature of so much of what they assume to be correct about nuclear nonproliferation law.

It’s tempting at times to just give up and go back to only writing books and articles that maybe a few other legal academics and students will read.  I do think that, in fact, writing quality scholarship that can be of use for the education of the next generation of not only international lawyers but also diplomats, is one of the most powerful ways that a legal academic can hope to contribute to the real world. And I think that is a fine meaning upon which to found one’s professional life.

Perhaps I’m just being overly pessimistic and morose. But it is hard to see the point of this endeavor sometimes.

On an only somewhat lighter note, Paul Pillar published a good op-ed in the National Interest yesterday, urging Americans to take a deep breath and view ISIS in perspective. I think he’s absolutely right, and I’ve been doing a lot of eye-rolling at the alarmist hype coming out of DC about how serious a threat ISIS is to the US, and how we definitely have to eradicate them now before they come for us. How many times have we heard that song?


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