I wanted to quickly bring to readers’ attention an entry in the “Innovative Ideas” category of the Innovating Justice Awards, run by the Hague Institute for the Internationalisation of Law. The entry is entitled “Legal Resolution of Nuclear Non-Proliferation Disputes.” You can see the details and vote for the entry at this link. Here’s the summary of the proposal:
The challenge to use legal resolution in nuclear non-proliferation disputes proposes to explore the viability of resolution of nuclear non-proliferation disputes through the International Court of Justice and international arbitration. The IAEA Statute, IAEA Safeguards Agreements and the Convention on the Physical Protection of Nuclear Material contain compromissory clauses that give jurisdiction to these fora. Moreover, justiciability should not prove much of a barrier either, as recent jurisprudence shows how legal resolution can handle such politically sensitive disputes, inter alia. The impartiality and procedural safeguards of legal resolution should make it an acceptable option for target States and the international community, especially via-à-vis the procedural shortcomings and general heavy-handedness of Security Council involvement under UN Charter Chapter VII in this area. While legal resolution is not necessarily the panacea to the world’s problems with nuclear proliferation, it nevertheless represents an option that States and commentators all too often have ignored. This study aims to remedy that situation.
This is a great idea and an important and, yes, quite innovative approach to resolving nuclear disputes, and one that definitely needs to be further explored and developed. I’ve wanted to write something on this subject myself for a while, because the idea keeps being brought up in discussions, but I havent seen any really rigorous analysis of these possibilities for dispute resolution. I would welcome some really good work on this question, and I think it could be quite influential in clarifying the options for legal dispute resolution in the nuclear area.
As I understand it, the idea of this awards program is for the jurisprudential community to pick from amongst the proposals the ideas they think are most innovative and important, vote for them, and the winner then gets financial and other support to pursue and develop their innovative idea. So I have voted for this proposal myself and would highly encourage readers to do the same. The process isnt difficult – it takes literally two minutes at the above link.
I know who the author of the proposal is, but he wants to generally maintain anonymity in order to preserve the objectivity of the process, so I won’t announce it here. I will tell you, though, that this is a scholar whose work I wholeheartedly endorse, and who would do a great job in pursuing this project.
So go and have a look at the proposal and consider voting for it.
Marco and I are extremely pleased to announce that our new edited volume was published yesterday. The book is entitled Nonproliferation Law as a Special Regime: A Contribution to Fragmentation Theory in International Law, and is published by Cambridge University Press. Here’s the link to the book on CUP’s website. At the site you’ll find some nice pdf excerpts from the book.
I remember sitting with Marco in a patisserie in London in December 2009. Marco brought up an idea. He said he had been thinking about the body of nonproliferation treaties and related organizations, and whether, and to what extent, this issue specific area of international law might be usefully examined by reference to fragmentation theory, as a special regime of international law with specialized secondary rules. At the time, I had recently finished co-editing a book, which had been my second edited book. I can tell you from those two prior experiences that I had absolutely no inclination to embark on another edited book project. So, so many reasons for that feeling that I can explain some other time. But when I heard this idea, it just made so much sense to me, and seemed so substantively interesting and full of promise, that my reticence was overcome and I thought we just had to do one on this topic.
We did talk about co-authoring the book, but we wanted this to be a real collective endeavor among a group of first class international lawyers, so that the results of the study would be less susceptible to criticism as just the argument of two nonproliferation law specialists. We were extremely fortunate that exactly such a group of contributors agreed to participate in the project. And we told the chapter authors from the beginning that we wanted each of them to conduct an independent inquiry in their agreed area of secondary rules, relating either to the law of state responsibility or to the law of treaties, into whether and to what extent there existed in the law and legal practice related to non-proliferation treaties, specific and specialized secondary rules that differed from the general rules of international law on that topic, and/or from specialized rules on that topic found in other substantive areas of international law. To the extent that such specialized rules were found to exist, the author’s second task was to consider whether these specialized rules could be considered as evidence supporting the conclusion that non-proliferation law is a special regime, at least as to that particular topic, explainable by fragmentation and special regime theory.
So yes, this is a very theoretical book, and I know it won’t appeal to many outside of academia, but we do hope that the results and the methodology of the study will be seen as significant contributions to fragmentation theory scholarship, and to understanding of nonproliferation treaties and their specialized rules.
Marco and I would like to thank the chapter authors for their excellent work on the book. They include Malgosia Fitzmaurice, Panos Merkouris, Andrew Michie, Matthew Happold, Nigel White, Eric Myjer, Jonathan Herbach, Dieter Fleck, and Sahib Singh.
And I can’t tell you how thrilled we all were to learn that Judge Bruno Simma had agreed to endorse the book on the back cover. For those who don’t know, Judge Simma is something of a demigod in international legal circles; having served as a Judge on the International Court of Justice, and as a member of the International Law Commission, in addition to his peerless scholarly career. Among his many areas of expertise, he is one of the foremost scholars of fragmentation theory. Here’s what he wrote about our book:
Fragmentation of international law has become a favorite topic in the literature, all too often dealt with in the same worn, tired way, referring to the same few cases and usually ending up with authors making more or less solemn over-generalizations in one direction or the other. Against this background, it is a true pleasure to follow a group of experts both on non-proliferation law and the relevant international law around the Non-Proliferation Treaty on their analysis of the ways in which this treaty regime is “special” without, however, essentially detaching itself from the general law in which it remains embedded. The book thus sets an admirable example of how the ever-increasing number of specialized treaty regimes ought to be subjected to a profound dialogue between experts in the respective subject areas and international law generalists to the profit of both.
We can’t thank Judge Simma enough for those kind words, which compliment the book in precisely the ways in which we hoped it would make a significant contribution.
I haven’t been blogging much lately because of a couple of factors – I had some minor surgery on my neck, and then I was writing the post on the IAEA standards of investigation and assessment, which took a lot more time and effort than I intended.
But here are a number of developments relevant to arms control law that I’ve noticed lately and would like to bring to readers’ attention:
1. Here’s a new article on the USIP site co-authored by David Albright of ISIS. Wow. Just 100% incorrect in its legal interpretations of the NPT. Why is it that in the nonproliferation area everyone, including engineers, physicists, chemists and general policy wonks, think they can do legal interpretation? You won’t find me writing articles about the technical aspects of missile capabilities, or the internal physics of a warhead core. I know these things are outside of my training and qualification to do. But apparently everyone thinks they can do legal analysis. With respect, I think David should stick to obsessing over satellite pictures of tarps at random military bases in Iran.
2. Some important new statements from high ranking Russian officials, both on the lack of evidence of military dimensions of Iran’s nuclear program, and on the wrongfulness, ineffectiveness and imprudence of economic sanctions imposed unilaterally by the West. Important new markers of disunity among the P5+1 on approach to the Iran situation, and some welcome levelheadedness of Russian officials.
3. The NAM Summit final document, adopted by consensus of the 120 states attending. This is the international community, folks, and they are saying some pretty specific things here in paragraphs 6 & 7 about the scope and meaning of the NPT Article IV right, and about the illegality of attacks or threats of attack against peaceful nuclear facilities. This is a statement that has potential relevance for legal interpretation of the NPT, and possibly also for the formation of customary international law on these points.
4. Trita Parsi’s latest article on Iran Sanctions. Such important points to understand about sanctions – and, I would add, points backed up by academic literature. In a situation like the Iran crisis, sanctions do not change target government behavior. They only hurt the ordinary people of the target state, and this in turn will only backfire against those maintaining the sanctions. I wrote about this issue in my article in the Harvard Law and Policy Review Online, discussing some of this literature.
I just got back from teaching my PIL class today, and we were talking about sanctions imposed by international organizations. I told my class that economic sanctions unfortunately appear in many ways analogous to heroin to Western governments. They (sanctions) don’t do any good, and in fact almost always make things worse. They produce terrible effects on ordinary people in target countries, destroying economies and causing unnecessary and undeserved suffering. Nevertheless, the UNSC keeps coming back to this tool of policy time after time like an addict, because it makes them feel good to be doing, and to be seen by their domestic political constituencies to be doing, something in such situations. It gives them a feeling of catharsis, but even they know that in the end all the sanctions will really produce is terrible and undeserved and pointless harm. I thought that was a pretty good analogy.
5. Yousaf Butt’s latest article in the Christian Science Monitor. He makes such an important point here that is so frequently not understood in the maelstrom of the U.S. political race to see who can be the most hawkish on Iran – i.e. that the very best way to make sure Iran DOES have a nuclear weapons program, and ACTUALLY WITHDRAWS from the NPT and KICKS OUT IAEA INSPECTORS, is for Israel to attack Iran’s nuclear facilities. Now, this may be what some in Israel, and even in the U.S. want – to start a war with Iran. But for those of us who don’t relish that idea, this is an important point to bear in mind.
The IAEA Applies Incorrect Standards, Exceeding its Legal Mandate and Acting Ultra Vires Regarding IranPosted: September 13, 2012
The other day I was reading over the most recent IAEA Director General’s (DG’s) report to the IAEA Board of Governors (BOG) on implementation of safeguards in Iran. The report was submitted on 8/30/12 (GOV/2012/37). I had on my mind some comments and queries that Cyrus Safdari had kindly sent to me. The DG’s report includes the following paragraph in its summary section, which is very similar in language to the summary statements that have been included in other DG reports on Iran over the past approximately six years – though the relevant language has evolved significantly over that time and become more consolidated and conclusory:
While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, as Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.
So here the DG begins by saying that the IAEA can verify that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use. This mandate for investigation by the IAEA, and the standard of assessment for this investigation, come directly from Iran’s INFCIRC/153 comprehensive safeguards agreement (CSA), in Article II, which reads:
The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.
But the DG’s report doesn’t stop there. It continues on to then apply two separate and additional legal standards and make two additional assessments based upon them. These separate and additional legal standards are:
1) “the absence of undeclared nuclear material and activities in Iran”; and
2) “that all nuclear material in Iran is in peaceful activities.”
So that got me to thinking, where do these other two legal standards come from? It is an important question, because essentially these two standards, together with the first clearly applicable standard, are the legal standards that the IAEA has been using as its scope of mandate for investigation and assessment regarding Iran’s compliance with its safeguards agreements for at least the last six years or so. And it’s been on the basis of the application of these legal standards, that the IAEA has continued to consider Iran to be in noncompliance with is safeguards agreements, which fact it has reported to the U.N. Security Council and to the world. This assessment by the IAEA has in turn shaped the diplomatic and security climate surrounding Iran, and the substance of negotiations between Iran and the P5+1. It has also formed a basis of asserted legitimacy for the economic sanctions applied both multilaterally and unilaterally by the West that have crippled the Iranian economy. So it’s important to know whether these legal standards are correct, in order to know whether the investigations and assessments based on them are legally correct.
I think there are two sources from which the IAEA would say these two additional legal standards, and the IAEA’s mandate to apply them, derive. However, as I will show herein I think that in both instances this argument is incorrect. And as a result of this analysis, I will argue that these two additional legal standards are ultra vires the IAEA’s authority to apply to Iran, and to be the basis for investigations and assessments by the IAEA. I conclude that the only lawful standard for the IAEA to apply is the first of the three standards: “that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use.” And that pursuant to that sole lawful standard, Iran is in full legal compliance with its safeguards agreements with the IAEA, as the DG once again confirmed in his 8/30/12 report.
Nuclear export controls have traditionally confronted countries possessing nuclear goods and technology with potential importers of these items. The main lines of argument in this debate have been the contribution of such controls to the non-proliferation objective, their impact on the right to develop nuclear energy for peaceful purposes and, in this context, the compatibility of the measures agreed by the leading nuclear exporting States with the regulation of the Non-Proliferation Treaty (NPT).
The debate will be resumed at the upcoming NPT Review Conference in 2015, although documents submitted to date reveal the apparent stalemate between the State Parties as regards attempts to reach a consensus. Thus, for example, the working paper (WP) presented by the Vienna Group of Ten contains the following statements:
- “All States should apply in their export control regimes the Understandings of the Zangger Committee (…) as well as the Guidelines developed by a group of States for their nuclear-related exports.”
- “New supply arrangements for the transfer of source or special fissionable material or equipment or material specially designed or prepared for the processing, use or production of special fissionable material to non-nuclear-weapon States should require, as a necessary precondition, acceptance of the IAEA full-scope safeguards and an Additional Protocol based on the model INFCIRC/540 (Corrected).”
- “… transfers of nuclear material, sensitive equipment or technology should take place only if the recipient State has in place an effective and adequate national system of nuclear security.”
By contrast, the WPs presented by the League of Arab States and the Group of Non-Aligned States Parties to the Treaty take a diametrically opposed stance. Thus, the former rejects all attempts to make the conclusion of additional protocols a necessary (rather than a voluntary) condition for those developing States wishing to acquire peaceful nuclear technologies, and maintains that every State party to the Treaty:
“should facilitate the exchange of scientific and technological materials and information in as complete a manner as possible in the context of the Treaty, so long as the State obtaining those materials or information is committed to the safeguards agreements concluded with the [International Atomic Energy] Agency”.
The WP submitted by the Group of Non-Aligned States stresses that the NPT:
“does not prohibit the transfer or use of nuclear technology, equipment or material for peaceful purposes based on their sensitivity, and only stipulates that such technology, equipment and material must be subject to full-scope IAEA safeguards”.
According to the Group:
“new supply arrangements for the transfer of source or special fissionable material or equipment or material designed or prepared for the processing, use or production of special fissionable material to non-nuclear-weapon States should require, as a necessary precondition, acceptance of IAEA full-scope safeguards and internationally legally binding commitments not to acquire nuclear weapons or other nuclear explosive devices.”
Regardless of other considerations, the fact remains that the implementation of nuclear export controls is a legal obligation for all States pursuant to various resolutions adopted by the Security Council. The resolutions, however, allow different interpretations to be made as regards the type of goods under control and the conditions associated with the authorization of particular exports.
The Final Document published at the last NPT Review Conference, held in 2010, makes a number of recommendations, which could be understood as potential solution to these two issues. Indeed, the Conference encourages States parties to make use of multilaterally negotiated and agreed guidelines and understandings in developing their own national export controls. As such, the text seems to assign to these “guidelines and understandings” the function of a regulatory framework of reference for a country’s legislative activity and, thus, to be seeking the harmonization of national laws on nuclear export controls. Moreover, as a recommendation of the NPT Review Conference it can also be seen as an attempt at strengthening the regulations embodied in that Treaty. Yet, as shall be seen, such goals are not fully met by the guidelines issued by the leading group of nuclear supplier countries, the Nuclear Suppliers Group (NSG).
Indeed, the NSG guidelines would constitute a poor instrument for achieving the harmonization of national laws and, more importantly, their general application could even weaken the non-proliferation regime designed by the NPT.
Specifically, the worldwide application of the NSG guidelines would appear to have four major consequences:
1. At first sight, the main outcome would be the enlargement of the material scope of national export controls and, as such, the modification of Article III.2 of the NPT. Hence, not only would the list of nuclear sources, materials and goods subject to control be extended (when compared to the aforementioned article and the ‘development’ of that provision made by the Zangger Committee), but goods of dual-use would also be included within the scope of these controls. Moreover, the NSG guidelines on nuclear-related dual-use items do not include a closed trigger list and so would allow States to extend the qualification of dual-use to any good as deemed necessary. As such, the guidelines would have a minimal impact on the harmonization of the material scope of national export controls, allowing each country to apply the guidelines at their discretion to other items of significance in addition to those identified jointly by the NSG.
2. Notwithstanding the fact that the NSG guidelines recognize the States right to incorporate additional conditions to the agreed list, their widespread application would lead to a distinction being drawn in the type of conditions with which an import country must comply through the consolidation of a double standard of conditionality: a general standard, as required by the full-scope IAEA safeguards in the recipient State, and a specific standard, namely the requirement of an Additional Protocol for the transfer of enrichment and reprocessing facilities, equipment and technologies. The NSG guidelines allow no exceptions to this last condition. However, in the case of the full-scope safeguards this condition may, according to the guidelines, be waived in certain circumstances subject to the assessment of the exporting State. Consequently, the only significant change is related to the Additional Protocol in the case of exports of enrichment and reprocessing goods, which brings about a change in the regulation contained in Article III.2 of the NPT as such exports would become a specific subtype subject to different conditions.
3. As for the conditions that control the export of dual-use goods, the NSG guidelines simply lay down a set of rules of conduct to be adhered to by the supplier countries. The guidelines include an open list of conditions that need to be taken into account when authorizing a particular export. Within this broad margin of discretion, the fact remains that the NSG guidelines establish a precautionary principle in relation to the export of such goods. Yet, while this principle imposes on States an obligation to control, it lacks any clearly defined legal content. In fact, the NSG guidelines merely mention the type of internal rules to be adopted by States and exclude any substantive indications with which those rules must comply. In practice, this could mean that the precautionary principle serves as a rule that enables any kind of restriction to be imposed on the export of dual-use goods and as such does little to generate harmonization. At the same time, given the few references to the NPT and to the IAEA safeguards, the NSG guidelines serve as an instrument that promotes the decentralization of international control to the detriment of the international non-proliferation bodies.
4. In line with the NSG guidelines, States can refuse to grant an export authorization by virtue of the ‘non-proliferation principle’, when they cannot be satisfied that the transfers will not contribute to the proliferation of nuclear weapons or other nuclear explosive devices or their diversion to acts of nuclear terrorism, even though the importing country complies with the conditions included in the guidelines and all other conditions required by the law of the exporting State. The worldwide application of this non-proliferation principle, together with the characteristics outlined above of the precautionary principle, would have another consequence: the obligation to cooperate as set out in Article IV of the NPT would be undermined, since the margin of discretion that these principles allow States, would make it extremely difficult to demonstrate that this obligation is not being fulfilled.
In the light of the consequences described above, the recommendation adopted at the last NPT Review Conference would not appear to be conducive to a strengthening of the non-proliferation regime, nor is it useful for the harmonization of national export controls. The expansion of the types of goods and technologies subject to control does not reflect a strengthening of the powers assigned to the IAEA and, conversely, the exporting States obtain virtually complete freedom to authorize or otherwise the transfer of such goods and technologies, including anything that could qualify as dual-use materials.
All in all, the worldwide application of the NSG guidelines would broaden the gap between States with and without access to the development of nuclear energy for peaceful purposes and, consequently, would threaten the delicate balance that exists today between the three pillars on which the NPT is built: nuclear disarmament, non-proliferation and the peaceful use of nuclear energy.
Failing any unexpected developments, a general consensus at the next NPT Review Conference on the regulation of a universal export control system that might replace existing NPT rules is unlikely. However, a step forward in redirecting the debate might involve the exploration of alternative approaches to those adopted to date. One such approach might be the definition of a right to the import of nuclear goods. The instrument around which that right could be defined is the Additional Protocol to the IAEA safeguards agreements, since there is a general consensus as to its ability to ensure the absence of non-peaceful activities in the countries in which it is in force. Along a similar line, national laws governing nuclear export controls should consider that the existence of an Additional Protocol for the importing State is a sufficient condition to permit any type of nuclear export, including dual-use goods and, thus, that it is not possible to refuse to grant an export authorization under the non-proliferation or precautionary principle. The definition of this right would at least provide some substance to the duty to cooperate as laid down in article IV of the NPT.
 SC Resolutions 1540(2004) and 1887(2009).
 NPT/CONF.2010/50 (Vol. 1), First Part, Action 36.
 INFCIRC/254/Rev.10/Part.1: NSG guidelines for the export of nuclear material, equipment and technology, and INFCIRC/254/Rev.8/Part.2: NSG guidelines for transfers of nuclear-related dual-use equipment, material, software and related technology.
Incapacitating Chemicals and the Chemical Weapons Convention: Reflections on the ICRC’s Perspectives on International Law and Toxic Chemicals as Weapons for Law EnforcementPosted: September 6, 2012
The International Committee of the Red Cross (ICRC) recently circulated a six-page synthesis and two-page summary of the ICRC’s work on the threat it perceives that incapacitating chemicals used by law enforcement pose to the absolute prohibition on the use of chemical weapons in armed conflict contained in the Chemical Weapon Convention (CWC) [see ICRC, Toxic Chemicals as Weapons for Law Enforcement: A Threat to Life and International Law?: Synthesis (Sept. 2012); and ICRC, Toxic Chemicals as Weapons for Law Enforcement: A Threat to Life and International Law?: Summary (Sept. 2012)]. These documents are informed by ICRC activities on incapacitating chemical weapons, the CWC, and international law, including meetings with a broad range of participants held in March 2010 and April 2012. The ICRC intends the synthesis and summary to inform policy makers and civil society about this issue in the lead-up to the CWC review conference in April 2013.
The ICRC identifies the main problem in this area as the ambiguity that exists in the CWC provision that permits the use of toxic chemicals for law enforcement purposes, including domestic riot control (CWC, Article II:9(d)). This provision does not, in the ICRC’s words, specify “which toxic chemicals may be used as weapons for law enforcement and which ‘types and quantities’ are consistent with these purposes” (Synthesis, p. 2). The ICRC observes that different interpretations of this provision have been offered without CWC states parties acting to clarify the meaning despite opportunities to do so at the last two CWC review conferences.
However, the ICRC observes that other international legal regimes, namely international human rights law and international drug control treaties (1961 Single Convention on Narcotic Drugs and 1971 Convention on Psychotropic Substances), significantly, if not entirely, reduce the scope of legitimate law enforcement use of incapacitating chemicals as weapons. The ICRC observes that “it is extremely difficult, if not impossible” to use incapacitating chemicals for law enforcement purposes in ways consistent with human rights principles. It concludes that the international drug control treaties leave “little room, if any, for the legitimate use of toxic chemicals–other than riot control agents–as weapons for law enforcement of international law” (Synthesis, p. 3).
Informing these interpretations of international human rights law and international drug control treaties is scientific and medical input on the serious risks to human life and health associated with use of incapacitating chemicals as weapons for law enforcement purposes. In law enforcement situations, the police or security forces cannot control the dose of the chemicals to which persons are exposed, determine the conditions of exposure to the chemicals, or provide the urgent medical attention victims of exposure need. The scientific and medical input reinforces the legal interpretation that other areas of international law applicable to law enforcement use of weapons leave little to no ambiguity about the illegitimacy of law enforcement use of toxic chemicals beyond riot control agents.
The impact of these bodies of international law and the medical/scientific input suggests that the CWC’s law enforcement provision is not as ambiguous or dangerous as perhaps feared–meaning that CWC states parties could simply ratify this reality at the April 2013 review conference without much controversy. Here, we see the ICRC attempting to show CWC states parties how easy it is to accept the significant restrictiveness of the CWC’s law enforcement provision under a comprehensive international legal interpretation of it.
But, at the same time, the ICRC remains very concerned about ambiguity in the CWC’s law enforcement provision creating a risk that governments will exploit it to develop and use chemical weapons in armed conflict, leading to “a ‘slippery slope’ back to chemical warfare” (Synthesis, p. 5). Here, the ICRC uses fear of the consequences of legal ambiguity to motivate CWC states parties to take urgent action to prevent the “slippery slope” from emerging.
The problem is that the two messages–one arguing that no legal ambiguity really exists, the other asserting that dangerous legal ambiguity is present–do not seem consistent. On the one hand, the ICRC’s analysis of the CWC in light of other applicable international legal rules attempts to demonstrate that use of incapacitating chemical weapons for law enforcement purposes has virtually no legitimacy. In other words, we don’t really have legal ambiguity here when we look across all bodies of international law relevant to the CWC’s law enforcement provision. On the other hand, the ICRC warns about the “slippery slope” the ambiguity of the law enforcement provision creates that could lead to the destruction of the CWC’s absolute prohibition on use of chemical weapons in armed conflict. Or, we really have legal ambiguity here that is potentially catastrophic.
The ICRC’s position would make more sense if it argued that the layers of international law already in place seriously restrict, if not eliminate, the scope of law enforcement use of incapacitating chemicals, meaning that getting from law enforcement scenarios to use of chemical weapons in armed conflict would have to involve blatant and wholesale violations of multiple bodies of international law. This scenario is less a “slippery slope” than a nightmare involving clear and comprehensive violations by states of many international legal rules, including the CWC, international human rights law, international drug control treaties, and international humanitarian law.
Or, consistency would be achieved if the ICRC argued that the other relevant bodies of international law (as informed by medical and scientific input) do not resolve the ambiguity surrounding law enforcement use of incapacitating chemicals. Here, legal ambiguity would exist in not only the CWC’s law enforcement provision but also the other applicable international legal rules–and this aggregate ambiguity creates the “slippery slope” that CWC states parties need to address directly and urgently at the next review conference. However, the ICRC’s documents do not identify any such ambiguity in interpreting the CWC, international human rights law, and international drug control treaties that would support a dangerous “slippery slope” scenario threatening the very purpose of the CWC.
Ironically, the ICRC’s approach might provide CWC states parties two ways to avoid addressing its concerns about law enforcement uses of incapacitating chemical weapons. First, CWC states parties could assert that the CWC, combined with other international legal rules, sufficiently limits the scope of law enforcement use of incapacitating chemicals that no additional action is needed at a review conference. Second, CWC states parties could acknowledge continuing legal ambiguity on this question but politically prefer ambiguity to clarity–as has already happened at the past two review conferences.
At any rate, CWC states parties are unlikely to be impressed by the ICRC arguing simultaneously that international law virtually eliminates legitimate law enforcement uses of incapacitating chemical weapons and contains legal ambiguity on this issue on a scale that threatens to destroy the CWC and drag other relevant areas of international law into disrepute.
I’d like to welcome a new member of the Arms Control Law blogging team, Dr. Milagros Alvarez-Verdugo of the University of Barcelona. Dr. Alvarez-Verdugo has a highly developed expertise in WMD nonproliferation law, as well as EU security and defense policy, and has extensively published in these areas in both Spanish and English. She will add significantly to the pool of expertise here at Arms Control Law, and it’s a great pleasure to have her on board!
Her first post will follow shortly, and will consist of some very interesting thoughts on the lead up to the 2015 NPT Review Conference, and specifically on various positions of states regarding the potential universalization of the rules of the Nuclear Suppliers Group. I for one plan to comment on it when she posts it, and I think it might produce some good discussion.
Please see a summary of her impressive bio below:
Dr. Milagros Álvarez-Verdugo is Associate Professor of International Law and EU Law at the University of Barcelona. Her work for the past decade has focused primarily on the nonproliferation of WMD and the EU security and defense policy. She is the author of Incidence of the Security Council on the Legal Regime of Nuclear Weapons (Barcelona, J.M.Bosch, 2007 –in Spanish) and The Security and Defense Policy of the European Union (Madrid, Dykinson, 2003 –in Spanish). She has published articles in international journals such as the European Journal of International Law and European Foreign Affairs Review, and in the major Spanish journals in the field. Currently she is a visiting scholar at Cornell University (2012-13). She has visited previously at Cornell (2004-2005), and Harvard University (2005), and has been Visiting Professor at the Law School of the University of Puerto Rico (2004 and 2008).
On 27 August 2012, French President François Hollande delivered a speech at the 20th French Ambassadors Conference (original French text here). It contains the following passage on the Iranian nuclear issue:
My approach to the Iran crisis is based on the same requirement for collective security.
The Iranian nuclear programme, which has no credible civilian purpose, constitutes a threat to all countries in the region. It’s all the more unacceptable because it’s being carried out by a regime that frequently issues statements – reiterated in recent days – directly calling for the destruction of the State of Israel.
France’s position is clear: it would be unacceptable for Iran to acquire a nuclear weapon. And that country must comply with its international obligations under the NPT as well as the resolutions adopted by the Security Council and the IAEA. The path of dialogue remains open because our goal is to achieve a diplomatic resolution to the crisis, but until Iran answers all the outstanding questions and complies with international law, France has a responsibility to further strengthen the sanctions against the Tehran regime.
This statement, apart from the fact that it is grounded in an allegation (‘no credible civilian purpose’) which has not been to date verified nor affirmed by the body in charge of monitoring compliance with nuclear safeguards under the NPT (i.e. the IAEA), after nearly ten years of intensive verification/inspection activities in Iran, nor established authoritatively by an international court or tribunal, poses a major problem from the point of view of international law, more precisely the body of norms referred to as the ‘law of collective security’ (see e.g. the leading work of Orakhelashvili, and the volume edited by White).
The problem lies in the assertion that ‘France has a responsibility to further strengthen the sanctions against the Tehran regime’.
Additional‘sanctions’ against Iran would necessarily amount to ‘countermeasures’ in the meaning of the 2011 ILC Articles on State responsibility for internationally wrongful acts. As I pointed out in my article ‘Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran’ (SSRN draft available here, also discussed here), the availibility of countermeasures, either taken by one individual country (France), or enacted in the framework of a regional organization (the EU), in situations where the Security Council has already enacted measures (which the UN Member States are mandated to comply with) is at least very doubtful. I referred in my article inter alia to the opinion expressed by professor Pellet during the debates at the ILC on the role of countermeasures in the law of State responsibility. Prof. Pellet held the view that
recourse to the measures provided for in Chapter VII of the Charter was the first essential limitation on the unilateral use of countermeasures. If the Security Council had decided on sanctions, in accordance with Articles 41 and 42 of the Charter, it was hardly likely that States would take no notice of them and continue to carry out measures of their own, just as individual or collective self-defence was allowed in the event of aggression only, according to Article 51,
… until the Security Council has taken measures necessary to maintain international peace and security.
If the Security Council had decided on measures within the meaning of Articles 41 and 42, States were no longer free to decide as they wished on countermeasures of their own.
In my opinion, therefore, France, or even the EU as a whole, cannot invoke any‘responsibility’ to take ‘independent’ countermeasures against Iran while the UN Security Council is and remains seized of the matter, insofar as none of them, unlike the Security Council, can claim to have been granted an enforcement power in the field of international peace and security. That is the reason why the invocation, in the same statement, of the ‘requirement for collective security’ seems quite paradoxal.