Chemical incapacitants: an acute case of fragmentation of international law?

David Fidler raised an important point in discussing the ‘slippery slope ambiguity’ concerning the potential use of novel toxic chemicals for law enforcement purposes and lack of consensus among states to make a prohibition on such a development as comprehensive as possible.

There is a confluence of different types of discussion in the in the debate on incapacitating agents. The licitness of incapacitating agents falls between three specialised areas of law, namely:

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Welcoming Dr. Jean-Pascal Zanders to Arms Control Law!

I’m extremely pleased to welcome Dr. Jean-Pascal Zanders as the newest permanent contributor to ACL!  Jean-Pascal is a Senior Research Fellow at the European Union Institute for Security Studies, and is a well established expert on chemical and biological nonproliferation/disarmament regimes and related diplomacy. In addition to email communication, Jean-Pascal and I had a very stimulating conversation over dinner in Paris recently, and I know that he will bring a wealth of insight and expert analysis to the blog.  So welcome, Jean-Pascal!

Here’s a couple of paragraphs from his bio at the EUISS webpage:

Jean Pascal, Senior Research Fellow, has been at the EUISS since June 2008. His research areas cover armament, disarmament and non-proliferation of chemical, biological, radiological and nuclear weapons, as well as space policy. He was Project Leader of the Chemical and Biological Warfare Project at the Stockholm International Peace Research Institute (SIPRI) from October 1996 until August 2003 and Director of the Geneva-based BioWeapons Prevention Project (BWPP) from April 2003 until May 2006. He holds Masters Degrees in Germanic Philology-Linguistics (1980) and Political Sciences (1992) and a PhD in Political Sciences (1996) from the Free University of Brussels.

He has published extensively on chemical and biological weapon issues in English, Dutch and French since 1986. His most recent publications with the EUISS are: (with Kathryn Nixdorff) Enforcing non-proliferation: the European Union and the 2006 BTWC Review Conference, Chaillot Paper no. 93 (November 2006), (editor) Nuclear weapons after the 2010 NPT Review Conference, Chaillot Paper no. 120 (April 2010), and A new farewell to arms: viewing disarmament in a new security environment, Policy Brief no. 6 (December 2010). He is currently researching the internal dynamics of a terrorist or criminal entity seeking to acquire a chemical or biological weapons capability, the meaning of disarmament in the current security context, and running a project on the longer-term future of the Chemical and Biological and Toxin Weapons Conventions. He also coordinates the pillar of ‘Core Issues’ (which includes, inter alia, CBRN disarmament and non-proliferation) in the European Strategy and Policy Analysis System, Pilot Study 2011, a 2010–2030 foresight exercise by the European Union.

Why the WTO is not an Appropriate Venue for Addressing Economic Cyber Espionage

Using the WTO to Respond to Economic Cyber Espionage?

US policy concerns about cyber espionage continue to grow, especially traditional and economic espionage allegedly conducted by China against the US and US companies through cyber technologies. Today (February 11), the Washington Post reported on a new National Intelligence Estimate focused on a “massive cyber-espionage campaign” directed at the US private sector by China. Concerns about economic cyber espionage include deepening frustration because the options available to the US to address cyber espionage are few, and the use of the limited options, such as criminalizing economic espionage in national law, have not proved much of a deterrent before or after spies began exploiting the Internet.

In the debate about how to counteract economic cyber espionage, cybersecurity heavyweights are encouraging the US to use the World Trade Organization (WTO) and its rules on intellectual property in the Agreement on Trade-Related Intellectual Property Rights (TRIPS) to address economic cyber espionage. On February 7, 2013, Richard Clarke argued in an op-ed that “victims of Chinese economic espionage should seek to establish clear guidelines and penalties within the World Trade Organization system[.]” In a Center for Strategic and International Studies (CSIS) report released on February 8, 2013, James Lewis argued that the US should use the WTO in its strategy against Chinese economic cyber espionage (see pages 49-51 of the report).

The recent appearance of these WTO arguments by Clarke and Lewis suggests that these influential experts perceive policy traction with these proposals is possible. Indeed, the Washington Post reported in its February 11 story that the Obama administration is considering, among other options, making “complaints to the World Trade Organization.” However, the idea that the WTO can prove useful to the US in addressing economic cyber espionage is not convincing legally or politically. The US should not view the WTO and TRIPS as appropriate venues for confronting the problem of economic cyber espionage.

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ISIS Encourages the IAEA to Use Unauthenticated Evidence in its Reports on Iran

Friend of ACL Professor Yousaf Butt, and Dr. Ferenc Dalnoki-Veress, both highly qualified physicists, have just published an insightful new analysis of information which appears to have formed part of the evidence on which the IAEA has relied in its continuing determination of Iran’s noncompliance with its safeguards agreement.

This is important stuff, as it goes directly to the heart of evidentiary provenance and reliability, the IAEA’s practices of evidence gathering and assessment, and thus to the reliability and credibility of IAEA reports and legal determinations regarding Iran and potentially other countries.

I highly recommend that you read this. It makes the issues clear even for non-technical types like me.

Becoming Binary Amidst Multipolarity: Internet Governance, Cybersecurity, and the Controversial Conclusion of the World Conference on International Telecommunications in December 2012

Arms control experts know that national security policies are embedded in larger concerns about the balance of power in international relations. The contentious outcome of the World Conference on International Telecommunications (WCIT) in Dubai in December 2012 demonstrates that cybersecurity is similarly tethered to geo-political competition over power and influence. The WCIT ended in acrimony because of disagreements on issues fundamental to the Internet’s place in national and international politics. These disagreements reflect deep differences among states on Internet and cyberspace governance–differences that produce incompatible notions of cybersecurity and a difficult environment in which to pursue international cooperation on this security problem.

The UN’s International Telecommunication Union (ITU) convened the WCIT to negotiate changes to the International Telecommunication Regulations (ITRs), a treaty adopted by ITU member states in 1988 to foster more effective cooperation on provision of international telecommunication services (e.g., telegraph and telephone). Since 1988, the global emergence of the Internet has revolutionized international telecommunications, making the ITRs essentially irrelevant to issues raised by the Internet’s astonishing growth and profound economic and political implications. The initiatives and processes that produced the global Internet took place outside the ITU and other intergovernmental institutions in “multi-stakeholder” forums, such as the Internet Engineering Task Force (IETF) and the Internet Corporation for Assigned Names and Numbers (ICANN).

Since at least the early 2000s, a number of countries, including China, Russia, and many developing nations, have expressed concerns about these multi-stakeholder processes and have sought to increase the role of governments, intergovernmental institutions, and international law in such governance. An important element in this challenge has been the perception that the status quo gives the United States a dominant position not justified in the context of a global Internet. The United States and its like-minded allies opposed efforts in ITU forums, such as the World Summit on the Information Society (2003-2005), to move from multi-stakeholder approaches to more intergovernmental influence and control.

The WCIT became the latest diplomatic venue for this clash of interests and ideas. Although the ITU Secretary-General repeatedly said that the WCIT would not be about Internet governance, ITU members proposed changes to the ITRs that put Internet governance, whether narrowly or broadly conceived, on the negotiating table. These proposals fueled arguments that the WCIT constituted a threat to a free and open Internet. The WCIT opened in a highly politicized environment and was not able to achieve sufficient compromises to produce consensus. In the end, 88 countries–including many African states, Brazil, China, Iran, and Russia–signed the revised ITRs, and 55 nations–including the United States and members of the European Union (EU)–did not sign the revised treaty. (For more legal analysis of the revised ITRs, see my American Society of International Law Insight on the WCIT and the revised ITRs.)

The United States was the most prominent opponent of the revised ITRs, and its opposition centered on Internet-related issues, namely expanding the scope of the ITRs to reach providers of Internet services, adding provisions on network and information security and on spam to the revised regulations, and attaching a non-binding resolution addressing Internet governance. For the United States, the revised ITRs threatened the multi-stakeholder approach and opened possibilities for countries to use the revised regulations to justify censorship in cyberspace, disrupt innovation, and harm the economic potential the Internet supports.

Looking more specifically at cybersecurity, the WCIT and its outcome did not create controversies in this policy space because problems have existed for years concerning how to improve cooperation on this issue. In brief, countries have disagreed about what “cybersecurity” or, as other countries prefer, “information security,” means. In addition, distrust among countries has increased, national moves to strengthen cyber defenses and capabilities have heightened worries, and high-profile incidents of cyber attacks, especially Stuxnet, have deepened anxieties. International cooperation has developed more in regional contexts than at the multilateral level, as illustrated by the Shanghai Cooperation Organization’s agreement on information security, NATO’s development of a cyber defense policy, and the EU’s recent announcement of its cybersecurity strategy.

However, the WCIT worsens the already questionable prospects for multilateral cooperation on cybersecurity for the foreseeable future. The two sides of the Internet governance debate hardened and entrenched their respective positions through the WCIT and the revised ITRs. China, Russia, and other supporters of the revised ITRs will, in all likelihood, use the ITU and the revised ITRs to press their ideas and interests on Internet issues, including what they perceive as security threats in this realm. The United States has announced that it will continue to oppose changes to Internet governance attempted through the ITU and the WCIT and will move to strengthen its cyber diplomacy through leveraging its allies in Europe (e.g., the EU and NATO) and intensifying bilateral cooperation with other countries, especially on cybersecurity.

This binary context of opposing factions adversely affects more than hopes for internationally agreed controls on cyber weapons (to the extent such hopes have survived to this point in time); it also challenges the role of Internet-relevant norms–binding and non-binding–in an international political environment that is experiencing confrontation and contestation about the Internet and cyberspace. Revelations subsequent to the WCIT’s conclusion–including allegations of Chinese hacking of major US newspapers and reporting on scaled-up US military cyber capabilities and secret “rules of engagement” for US cyber operations–have deepened the sense that power politics in cyberspace has entered a new and potentially more dangerous phase.

Toxic Chemicals as Law Enforcement Weapons: New ICRC Policy Position for the CWC Review Conference in April 2013

On February 6, 2013, the International Committee of the Red Cross (ICRC) issued a News Release ( and a Policy Position ( on the issue of law enforcement use of toxic chemicals (e.g., chemical incapacitating agents) as weapons. These documents continue the ICRC’s effort to have the states parties to the Chemical Weapons Convention (CWC) address the CWC’s provision on law enforcement use of toxic chemicals (Article II.9(d)). In September 2012, I posted some thoughts for this blog on an earlier ICRC document on law enforcement use of incapacitating chemical agents, a document that informed the policy position the ICRC announced on February 6.

Consistent with its earlier legal analysis, the new ICRC policy document argues in terms of the CWC and other relevant bodies of international law as follows:

From a legal perspective the ICRC wishes to recall that in armed conflict there is an absolute prohibition on the use of toxic chemicals as weapons under the 1925 Geneva Protocol, the Chemical Weapons Convention, and customary international humanitarian law. This includes a prohibition on the use of riot control agents as a method of warfare. The use of biological agents and toxins as weapons is absolutely prohibited by the Geneva Protocol, the 1972 Biological Weapons Convention and customary international humanitarian law.

Outside armed conflict, the Chemical Weapons Convention, the Biological Weapons Convention, international human rights law, and international drug control law form an overlapping legal framework regulating the use of toxic chemicals as weapons for law enforcement. It is the ICRC’s current assessment that this legal framework leaves little room, if any, for the legitimate use of toxic chemicals as weapons for law enforcement other than the use of riot control agents, as defined in the Chemical Weapons Convention.

Despite the conclusion that the CWC, combined with other international legal rules, drastically restricts, if not eliminates, legitimate law enforcement uses of toxic chemicals as weapons, the ICRC argues that:

The development and use of other toxic chemicals as weapons–such as the highly potent anaesthetic and sedative drugs considered in recent years as so called “incapacitating chemical agents”–presents serious risks to life and health, risks undermining international law prohibiting chemical weapons, and risks creating a ‘slippery slope’ towards the reintroduction of chemical weapons into armed conflict. The ICRC believes that these risks far outweigh any perceived operational benefits.

Thus, the ICRC advocates that CWC states parties, individually and collectively at the CWC review conference in April 2013 and other diplomatic forums, work to restrict law enforcement use of toxic chemicals exclusively to riot control agents (e.g., tear gas), as defined in the CWC.

In terms of international legal analysis, I agree with the ICRC that international law significantly restricts legitimate law enforcement uses of incapacitating chemicals. In the International Review of the Red Cross (2005) (, I argued that, when read in conjunction with relevant rules of international law (e.g., human rights), a CWC state party’s ability to use incapacitating chemical agents for law enforcement purposes under Article II.9(d) of the CWC is very limited. I might quibble with the ICRC’s reading of international drug control treaties in its analysis, but such quibbles do not change my belief that the ICRC’s legal conclusion on this issue is correct.

However, I start to have problems with the “slippery slope” part of the ICRC’s analysis. My September 2012 post on the earlier ICRC document raised issues that, I think, still exist with respect to the ICRC’s policy position it just announced:

The problem is that the [ICRC’s] 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.

I sense that the ICRC is presenting these two messages in order to hit a policy “sweet spot” with states–moving from the status quo to an explicit ban should be easy and non-controversial given existing international law and eliminates any “slippery slope” possibility, a win-win policy and legal option. But, my speculative conjecture is that the ICRC’s two legal messages might adversely affect the policy recommendations it is making to all states.

Policymakers could interpret the “no ambiguity” conclusion as meaning that new policy or legal actions are not needed at national or international levels. If, as the ICRC claims, international law severely restricts, if not eliminates, legitimate uses of toxic chemicals for law enforcement purposes, why spend time and scarce resources enacting new national laws and seeking more international legal action? The stronger international law appears, the weaker the political incentive to take further policy action might be. Perhaps that’s why the ICRC raises the “slippery slope” legal argument to bolster political incentives to act.

But, the “slippery slope ambiguity” implies a lack of consensus among states about constraints on use of incapacitating chemical agents and a lack of commitment to multiple international legal regimes applicable to the issue. In this more troubling context, what confidence would policymakers have that one more international rule would solve the existential threat to the CWC’s fundamental purpose the ICRC fears? The “slippery slope ambiguity” argument makes international law appear like a house of cards that will completely collapse unless we add just one more card. Further, if enough ambiguity exists to make the “slippery slope” a real possibility, then achieving agreement internationally will be very difficult because ambiguity is apparently useful to a number of states. The weaker international law appears, the stronger the political incentive to preserve policy space might be.

Of course, speculative conjecture often turns out to be speculative conjecture unrelated to what actually unfolds. Going forward, three of the ICRC’s four recommendations target action at the national policy and legal level, with the strategy being to build a “bottom up” movement by concerned states that can, over time, translate into influence in relevant diplomatic contexts to produce, ultimately, an international prohibition on the use of toxic chemicals that are not riot control agents for law enforcement purposes. This strategy contrasts with unrequited hopes by concerned groups and individuals that CWC states parties would directly and effectively address this issue at previous review conferences in the first decade of this century. Whether the ICRC’s strategy for a “ground game” at the national level gains traction before the CWC review conference in April 2013 remains to be seen, but the ICRC, I would imagine, sees this strategy as an endeavor that will require more than a few months to make a difference.