Syria: Should UN Investigators Pass Judgement?

I have started my own blog related to my new independent professional initiative called The Trench, which focusses primarily the future of disarmament and on questions of chemical and biological weapons.

My latest writing is on why the UN investigative team cannot speak out on who might be responsible for the CW attacks in Syria now two days ago.

Dan and I will look into how ACL and The Trench can link up without unnessarily duplicating each item.

All the best,

Jean Pascal


New Vertic Brief

I just saw this new Vertic Brief, written by John Carlson and Andreas Persbo. I’ve known Andreas for many years and have had many fruitful debates with him on nonproliferation law subjects, most recently in a BAS Roundtable. We are both members of the International Law Association’s Committee on Nuclear Weapons, Nonproliferation, and Contemporary International Law. I don’t know John Carlson, though I have certainly read his work.

In the continuing spirit of collegial debate, I have to say that there are a number of points about which I disagree with the authors of this piece. While not mentioning my work directly, Carlson and Persbo do seem to be responding to the kinds of arguments I typically make about the limited legal authority of the IAEA. As they say note:

Over the past decade, difficulties in implementation of the safeguards agree­ment between the IAEA and Iran have led to some commentary on the rights and obligations of the IAEA and the inspected state (in this case Iran, but the issues are generic)

Again, this is precisely the topic that Andreas and I, along with Chris Ford, debated in the BAS roundtable.

My first point of disagreement is with the very next sentence of the brief, wherein the authors state:

As this brief will discuss, the performance of a safeguards agree­ment cannot be considered narrowly as a bilateral matter between the two parties to the agreement. Both the IAEA and the inspected state also have responsibilities towards other states, and often towards other international institutions. 

I think that this statement is certainly incorrect as a formal legal matter – safeguards agreements are most definitely bilateral treaties between the IAEA as an international organization, and a single state. This fact has a bearing on interpretation of the treaty, and on determinations regarding compliance. As I wrote in my 2011 book:

Furthermore, one must remember that IAEA safeguards agreements are bilateral treaties between the IAEA, in its exercise of legal personality explicitly granted to it by the IAEA Statute, and a state.  The proposition that the IAEA itself can determine in authoritative fashion that the other party to a bilateral treaty, to which it itself is the other member, is in breach of its obligations under that treaty, has no precedent or analogue in international law.

I know what the authors are trying to argue here, of course. It’s that the entirety of the NPT/IAEA/U.N. Security Council system should be viewed together, holistically, and the purposive spirit of its legal documents achieved, even more importantly than their letter.  

Indeed, the authors say as much when they later argue:

If safeguards are construed too nar­rowly and legalistically they will fail in their confidence-building and assurance function—with potential repercussions for all parties. Lack of full cooperation with the IAEA will, at the least, result in a ‘confidence deficit,’ which will be counter-productive to the inspected state’s own interests. Recourse to legalistic arguments in place of cooperation, far from building confidence, will have the opposite effect.

The problem I have with this approach is, and I mean this about all lawyers and not just Carlson and Persbo, that we all like to be legal formalists when it suits us, but when it doesn’t suit the particular arguments we want to make, we have a tendency to turn all too quickly away from our formalist roots, and toward a more purposive, realist approach to law.  The reason for this is that you always want, if possible, to have the actual text of the law, as objectively rendered, on your side. So you will always try a formalist, textual argument first to achieve your aims. It’s only if you see that a formalistic, textual argument is not supportive of your desired outcome, that you will then retreat to Plan B, and say that even if the letter of the law might not be on my side, the spirit of the law certainly is.

A purposive interpretation of legal sources will focus not on a close reading of the actual text of the legal source, but on the overall purpose or aim of the law, and will apply this macro sense of purpose to the facts under consideration. This is an absolutely classic rhetorical technique for lawyers, and appears to be the tack that Carlson and Persbo are taking here.

The problem with this purposive approach, of course, is that when you don’t clearly tie your legal arguments to the text of the legal sources themselves, determining the “purpose” or “spirit” of the law is a rather ambiguous exercise, with many different possible outcomes and subjective choices of meaning.

This is precisely why the 1969 Vienna Convention on the Law of Treaties in Article 31 made a clear choice to prioritize textual interpretation of treaties, and assigned the more purposive resort to the preparatory debates surrounding the treaty to secondary status in Article 32.

The United States is itself quite (in)famous for its very limited, formalistic interpretations of its own obligations under Articles I & II of the NPT in the context, for example, of the stationing of U.S. nuclear weapons on the territory of NATO member NNWS. In fact, I just wrote a post on this recently. You can see it here.  

Similarly, in order to justify the nuclear technology sharing agreement the U.S. has entered into with India, the U.S. has relied on very limiting, formalistic interpretations of its obligations under Article III of the NPT. As I wrote in my 2009 book (footnotes removed):

In terms of the NPT Article III.2 obligations of the United States, the U.S. has argued that civilian nuclear cooperation with India, including transfers to India of nuclear fuel and enrichment technologies, is not in violation of its Article III.2 obligation not to “provide source or fissionable material . . . or equipment or materiel especially designed or prepared for the processing, use or production of special fissionable materiel, to any non-nuclear weapons state. . . ,” firstly because India is not a non-nuclear weapon state party to the NPT.  The question of whether the term “non-nuclear weapon State” as used in Article III.2 of the NPT refers only to non-nuclear weapons states parties to the treaty, as specified in other NPT provisions, or whether the term in this Article refers more broadly to any state not in possession of nuclear weapons, whether NPT party or not, is one which is debated by international lawyers. However, in the case of India, this distinction is largely moot as India is in possession of nuclear weapons and thus could not be included in any definition of a non-nuclear weapons state.  Thus, the U.S. argues that transfers to India are not subject to this provision of the NPT.

However, critics argue that, even if not a violation of the letter of the NPT’s provisions, the U.S.-India nuclear supply deal is undermining of the spirit of the NPT and of the grand bargain among NPT parties which the treaty represents.   They argue that in concluding this deal to provide civilian nuclear technology to India, the United States, a NuclearWeaponState under the NPT, is giving concessions to a state which has never undertaken the limiting obligations of the NPT, and which has in fact developed and is in possession of nuclear weapons.  To NPT NNWS which have undertaken the obligations of the NPT and not pursued nuclear weapons programs as a result, and which have submitted all nuclear sites within their territory to full-scope IAEA safeguards, this deal appears to give to India, in exchange for only the most basic of nonproliferation commitments, the reward which NPT NNWS were required to undertake and maintain these much more stringent obligations to obtain.  Many NPT NNWS see this granting of nuclear technology concessions to India by an NPT NWS as a positive reward for India’s decision to remain outside the NPT framework, and develop and maintain a nuclear weapons arsenal, which is the precise opposite to the incentive structure which the NPT sought to codify into international law.  

So again, we are all legal formalists when it suits us; generally for the purpose of limiting our own legal obligations. But we can also be quite easily tempted to become occasional legal realists, particularly when it’s a question of the other guy’s legal obligations, which we would like to have understood very broadly and comprehensively.

So this is why I think one has to view rather cynically arguments by Western states that NNWS should see their safeguards obligations as part of a holistic nonproliferation program, and should therefore basically accept whatever scope of authority the IAEA decides it has within this program because, after all, the IAEA is a good guy, and is trustworthy, and is only fulfilling its role in this grand and noble institutional creation of the international community, and would never (gasp!) abuse its authority or be captured by political interests. Shame on you for even thinking that!

Adopting a legal formalist approach to understanding nuclear nonproliferation obligations is not a manifestation of low esteem for the nonproliferation cause. If it was, the U.S. would be one of the chief culprits. It is, rather, an insistence upon the balance of rights and responsibilities, commitments and protections of state sovereignty, that were carefully negotiated and codified into the relevant legal documents.

There is the U.S. nonproliferation community these days a pervasive spirit of revisionism of nonproliferation law, as it applies to developing NNWS’ obligations under the NPT and IAEA safeguards agreements – the idea that the nonproliferation legal frameworks need evolving, and that this can be accomplished through fiat by the IAEA Board of Governors, and the governments of powerful NWS.

But this is not how international law works. Expansion of the international legal obligations of a state can only be accomplished consensually. This is one of the fundamental principles of the international legal system, and is one which, with regard to their own legal obligations, powerful states jealously guard. There should be no greater concern attached to developing states’ insistence upon it.

The last point of disagreement I’ll mention is with the authors’ arguments in this piece that the IAEA has the authority to investigate and assess possible military dimensions of a safeguarded state’s nuclear program. Basically this means that the IAEA should investigate and assess any activity within the territory of a safeguarded state that could potentially be of use in a nuclear weapon development program, and that NNWS must cooperate with the IAEA in these investigations in whatever way the IAEA thinks they should. I’ve already written about the PMD issue pretty extensively, and it will suffice to say here that I disagree completely with the authors’ arguments on this point. See my writings on this e.g. here, here, here.

I welcome Carlson’s or Persbo’s comments or counter-arguments.


Major CW attack reported in outskirts of Damascus

Reports are coming in of a major chemical attack on the outskirts of Damascus.

Syria conflict: ‘Chemical attacks’ near Damascus
21 August 2013 Last updated at 07:08 GMT
http://www.bbc.co.uk/news/world-middle-east-23777201

Video footage very disturbing:

http://bambuser.com/v/3832579

More footage and pictures at

http://www.reddit.com/r/syriancivilwar/comments/1kry33/live_thread_stream_of_videos_coming_out_of/

Poisoning/suffocation looks certain; not sure if nerve agent.

More to come over next hours, I am sure.

See my early comment at The Trench.

Jean Pascal


The ‘Massacre’ in Egypt: Implications for International Human Rights Law and Arms Control Law

It is extremely disturbing and sad for the people of Egypt and to humanity that hundreds of people have been killed in Egypt by the army; the interim Government blames the Muslim Brotherhood for engaging in armed violence. The situation may, or may not, deteriorate further. The response of the international community ranges from condemning the violent crackdown against protesters to that of calling restraint on both sides of the equation in Egypt.  It has to be underlined that the AU appears to be the only international organisation which acted decisively and principally, if not without shortcomings, as I argued and highlighted  in my recent post with EJIL: Talk (http://www.ejiltalk.org/author/zyihdego/).

Clearly, the situation was, and still is, complex.  The way the military took power can thus be controversial. What is not controversial, however, is the massive violations of international human rights law – arbitrarily detaining Morsi and his officials and harassing and now killing their supporters.  More specifically, Arts 6 (1) and  9 (1) of the ICCPR requires states and their agents  to respect  and protect the right to life and the dignity and security of a person.  The Egyptian military (and other security forces) have violated this core obligation of the State of Egypt by killing dozens of their citizens. It has to be emphasized that those who participate in religious or other ideological groups are also protected by this fundamental human rights.  The 1979 UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law enforcement Officials of 1990 prohibit illegal, disproportionate and unnecessary use of force against civilians. Both instruments reflect rules of customary international law as indicated in McCann v. UK (ECHR, 5 September 1995).  For further and detailed discussion on the principles see Z. Yihdego, The Arms Trade and International Law, Hart: Oxford, 1997, pp 242-250).

Article 9 of the 1990 Basic Principles underlined that:

‘Law enforcement officials shall not use firearms against persons except in self-defence of other against the imminent threat of death or serious injury, to prevent the preparation of a particular serious crime involving grave threat to life, to arrest a person presenting such a danger and extreme means are insufficient to achieve these objectives. In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life’.

Without going into polemics of what happened in Egypt before yesterday, the killing of more than 600 people in one day including foreign journalists, using the army and their bulldozers was clearly unnecessary and disproportionate.  Even if there were some armed men among the protestors, as claimed by Egyptian State TV that does not give the Army to fire indiscriminately. I would therefore argue, although further investigation might be necessary to establish the details, as demanded by the UN human rights Commissioner, that, what has happened in Cairo was a blatant violation of fundamental human rights in a larger scale.

 These serious violations of international law in Egypt have implications for arms control law in general and the arms trade in particular. The USA announced that it is suspending its joint military training with Egypt;  but questions will further be asked regarding arms supplies to the Egyptian army under those circumstances by the USA or other weapon supplying countries.  Although the UN Arms Trade Treaty (ATT)  is not yet entered into force, the US and other major exporters,  West European States in particular strongly supported the ATT.  84 state signed and 4 of them ratified the Treaty in just one month time since it was made open to signature and ratification.

Article 7 of the Treaty  obliges States to assess the international human rights risk of arms exports in country of destination. If there is overriding risk that the weapons will be used against these and other values of the international order arms exports shall not be authorised.  It may well be argued that the ATT is not yet in force and thus not applicable to the Egyptian situation. However,  the ATT’s most obligations are deduced from existing legal obligation of states to refrain from contributing or assisting a third state who is engaged in seriously offending  international norms. Even if one doubts this assertion most, if not all, arms exporting countries, including the USA have domestic laws which prohibit such practices. The US domestic law  is robust and clear enough, although  not without shortcomings.  For instance, the USA said that among its Red-Lines with respect to the ATT include:

‘There will be no lowering of current international standards.

Existing nonproliferation and export control regimes must not be undermined.

However, it is open-secrete that the USA is one of the major arms suppliers to Egypt which includes the supply of F-16 modern fighters.  The US may justify this by its national security and other regional interests but would it be lawful, ethical and politically acceptable to arm the Egyptian army?

Amnesty International was urging governments to halting their arms transfer to the Egyptian army since 2011.

Global arms suppliers must halt the transfer of small arms, ammunition and other repressive equipment to the Egyptian military and security forces, Amnesty International said today after the army again violently dispersed protests in Cairo.

The situation has now been escalated to a different level where hundreds of civilians who are demanding  for reinstating a democratically elected government, irrespective of their religious ideology or whether they are bad or good, have been massacred on a broad daylight.  The USA and others who supply armaments to Egypt must re-think about their policy of supplying with weapons to Egypt.  Cancelling a joint military exercise is a good move but not enough. 


Russian Deputy Defense Minister on US Tactical Nuclear Weapons in Europe

I recently saw this statement by Russian Deputy Defense Minister Anatoly Antonov, calling on the US to withdraw its tactical nuclear weapons from the territory of European countries who are NATO members.  He grounds this call in the illegality of the placement of these nuclear weapons under the NPT. As he explains:

As an expert on the Nuclear Non-Proliferation Treaty (NPT) I have a question why nuclear armaments are deployed on the territories of non-nuclear countries. What is the nuclear weaponry control system of NATO states? In my opinion, this is a violation of Articles 1 and 2 of the NPT . . . How does the concept of joint use of nuclear weapons look in this context? NATO states refuse to discuss this issue under the pretext this is an internal affair of the alliance and deny their violation of the NPT provisions . . . We think that the United States and, obviously, NATO countries must decide on the withdrawal of U.S. nuclear weapons to the U.S. territory.

I thought I might offer here some of my analysis from my 2009 book, International Law and the Proliferation of Weapons of Mass Destruction, that essentially supports Antonov’s interpretation of the NPT, as applied specifically to this issue. I finished writing this book in 2008, so the text is a bit dated now. Nevertheless, I think the analysis is still essentially valid. You can find the text on pgs. 13-15. I’ve omitted the footnotes here.

Read the rest of this entry »


CD Fails Again to Adopt a Program of Work

This is a pretty depressing account of the Conference on Disarmament’s most recent failure, in a long line of failures, to approve a program of work potentially leading to the negotiation of a new fissile material cut-off treaty. As in previous years, Pakistan is the lone holdout. And in a system that requires consensus, one is all that it takes to stop progress in its tracks (I can’t imagine running faculty meetings this way – they’re bad enough operating under a majority voting system! I was in a three-hour-long one on Monday).

I don’t have alot of deep thoughts about the CD, and I welcome others’ views. I do understand the general idea of moving forward only by consensus, in order to include all of the necessary players to make a resultant treaty worth having. But at some point doesn’t it become just patently obvious that some other mechanism needs to be employed to get to a new arms control treaty? It’s been 16 years now since any negotiations were conducted through the CD.

I mean, if treaties were only ever adopted when every country in the world endorsed them, we’d have precious few treaties. That may be desireable to some people, but it doesnt seem a good policy/practice to me. At some point, if a large majority of states can get on board with an agenda of work, it seems to me that it would be prudent to organize a conference outside of the CD forum in order to pursue the agenda. If Pakistan doesn’t sign the resulting treaty, that’s a shame but it shouldn’t be the cause of holding up the entire FMCT program.

And it would perhaps be good to remember that large, multilateral treaties (at least ones with universal obligations, unlike the NPT) tend over time to produce parallel customary international law, which would bind holdouts as well. This has been recognized to have occured in the cases of the 1982 Law of the Sea Convention and the 1969 Vienna Convention on the Law of Treaties, among others. 


ElBaradei Resigns as Egyptian VP

When I woke up this morning, I heard about the violent displacement of pro-Morsy demonstrators in Egypt by the military-led government. I have been opposed to the military coup in Egypt from the beginning, and today the violent crackdown on essentially peaceful protesters who were unwilling to recognize the resulting military-led government, really brought the situation to a new low. It was in that state of mind that I wrote the following Tweet at 10:02 am:

How can ElBaradei, Nobel Peace Prize winner, justify participation in an unlawful military coup turned violent, repressive government?

Mohamed Elbaradei was, of course, the longtime Director General of the IAEA, who was proven correct in his approach to claims about Iraqi WMD, and who generally was a voice for reason, prudence, and the rule of law during his tenure (having previously served as the Director of the IAEA Office of Legal Affairs).  These qualities and achievements led to his being awarded, jointly with the IAEA, the Nobel Peace Prize in 2005. ElBaradei is a man I have long respected.  And the fact that he had joined the interim government in Egypt as Vice President was something about which I was increasingly dismayed.

Imagine my happiness, then, when I heard just a couple of hours later, that ElBaradei had resigned from his government post in protest of the violence against Morsy supporters. In his resignation letter, he said that:

the beneficiaries of what happened today are those who call for violence, terrorism and the most extreme groups . . . As you know, I saw that there were peaceful ways to end this clash in society, there were proposed and acceptable solutions for beginnings that would take us to national consensus . . . It has become difficult for me to continue bearing responsibility for decisions that I do not agree with and whose consequences I fear. I cannot bear the responsibility for one drop of blood.

Now THAT is what I would expect from ElBaradei. Upon hearing the news, at 11:56am I Tweeted:

So glad to see that ElBaradei has resigned in protest of the gov’t’s violent crackdown on protesters!!! Respect restored!!!

I think ElBaradei has shown that his intentions all along were honorable, as is in complete harmony with his long-proven character. I don’t know all of the facts and considerations that led him to accept a post in the interim government, but I’m confident that he acted at all times in good faith, in furtherance of good principles, and in the best interests of the Egyptian people, as he perceived those principles and interests at the time. And now, in nobly standing up for similar good principles, he has fully restored any previously diminished respect that I have for him. I think he has made a powerful statement in today’s resignation – one that will have a significant effect on outside observers’ opinions of the interim government, due to his international stature.  I applaud his actions today, and I think in light of them, the interim government needs to do some serious reflection, and change its course.