I guess I just missed this when it came out back in December, but this is a good piece by Max Fisher in the Washington Post about a question that nonproliferation expert Joe Cirincione says in the piece comes up in every lecture that he gives on nonproliferation and the Middle East. Many others of us have had similar experience. And indeed it is omnipresent whenever any discussion about the proposed WMD Free Zone in the Middle East is had.
The piece offers some nice, concise history, along with useful quotes from good people like Cirincione, and the leading authority on Israel’s nuclear weapons program, Avner Cohen.
I’ve written before here on the topic of the double standard in Western, and particularly US, policy toward Israel’s nuclear weapons stockpile, and specifically in the context of the ME WMD FZ.
But one thing I think this WP article usefully does, and this is an observation made previously by Russ Wellen, is to point out that it’s really only natural that Israel in particular would be deeply suspicious of elements of Iran’s nuclear program that could be used to make nuclear weapons clandestinely, while the government lied through its teeth to the international community about their intentions, because this is exactly what Israel itself did. As Fisher writes in the WP article:
When U.S. intelligence did finally discover Israel’s nuclear facility, in 1960, Israeli leaders insisted that it was for peaceful purposes and that they were not interested in acquiring a nuclear weapon. Quite simply, they were lying, and for years resisted and stalled U.S.-backed nuclear inspectors sent to the facility. (This may help shed some light on why the United States and Israel are both so skeptical of Iran’s own reactor, potentially capable of yielding plutonium, under construction at Arak.) The work continued at Dimona.
Again, as I’ve written before, I can understand why Israel developed a nuclear weapons program, and why it wants to maintain its stockpile now. If I were in their shoes, I’d do the same thing. So I’m not morally judging Israel. But what gets me time and time again is how Israeli officials, and their patrons in the USG, wax moralistic in their condemnation of Iran for its nuclear weapons related experiments and capacity development, and for its refusal to cooperate with international inspectors to the extent they think it should. That is just pure, unadulterated hypocrisy, when viewed in the light of Israel’s own nuclear history, and the acceptance and diplomatic protection of Israel’s nuclear weapons program by the US.
I was just reading a new piece by Rebecca Johnson, whom I very much respect, reflecting on the recently concluded final NPT Preparatory Committee meeting before next year’s NPT Review Conference. Rebecca is probably the most knowledgeable person I know on NPT diplomacy issues. I think in this new piece she shares some very important and instructive insight about the relationship between nuclear disarmament and the NPT. It’s not a long piece and I encourage you to read it. I’ll excerpt here a few paragraphs from the end that I found to be particularly profound and insightful, about the situation in which pro-disarmament civil society finds itself, while viewing and trying to influence the dance of the elephants that is NPT diplomacy:
In view of the importance and attention given to the NPT by so many of our governments, civil society is stuck in a double bind. Having tried to make the regime work better and deliver progress on disarmament, we’re stuck with almost annual meetings and five-yearly review conferences that absorb considerable resources without achieving much in the real world. There’s a large ‘business-as-usual’ industry attached to the NPT in many of the nuclear-armed and alliance states, co-opting and trapping too many academics and NGOs in the non-proliferation narrative dominated by the P5. This is fuelled by funders that have downgraded peace and disarmament, and increasingly make the NPT and US-Russian arms reductions their priorities for grants. Ignoring the NPT, or carping from the sidelines, isn’t the answer either – since that just renders civil society invisible as far as most governments are concerned.
The run up to the 2015 NPT Review Conference provides us with unprecedented opportunities, as well as challenges. It may look like a game played by governments and NGOs, but the humanitarian stakes are deadly serious. Austria’s ambassador Alexander Kmentt chose this PrepCom to invite all governments and relevant civil society to participate in the Third International Conference on the Humanitarian Impacts of Nuclear Weapons, which will be held in Vienna on 8-9 December. The next year will see the NPT circus create a great deal of sound and fury, but probably not much else. If the Chair’s recommendations from this PrepCom are the most the P5 will accept, what will happen?
The many NGOs that have become partners in the International Campaign to Abolish Nuclear Weapons recognise that to carry the governments we need, we have to connect humanitarian initiatives for a globally applicable treaty to ban and eliminate nuclear weapons with the existing partially applicable NPT regime. As before, it will be a juggling act for civil society to be informed enough to exercise influence without becoming co-opted, irrelevant, or sunk under the NPT’s flawed premises and vested interests. This will be a major challenge in the coming year.
Governments are fond of calling the NPT the cornerstone of non-proliferation. Cornerstones need to be built on, or they end up as stumbling blocks half hidden in weeds. So let’s use the NPT cornerstone to construct more secure walls, and fix in place a higher, broader roof for the world without nuclear weapons that people all over the world want.
In 2015 we cannot let the NPT carry on being a stumbling block used by nuclear-armed states to break disarmament’s legs!
So this is going to sound a little international law nerdy, but I think my fellow PIL academics will understand when I say that I was quite excited when my friend Pierre-Emmanuel Dupont pointed out to me that my 2011 book had recently been cited to favorably in the International Law Commission Special Rapporteur’s second report on the topic of subsequent agreements and subsequent practice in relation to the interpretation of treaties (you can read about the ILC here). I’ll attach the ILC Report to a link below (you can’t just do a hyperlink to it, apparently). See footnote 195 and the surrounding text.
No, this is not a Nobel Peace Prize. But it’s still enough to make the day of an academic.
Basically, this is an argument that I have been making for some time, which is that NPT review conference final documents, which are adopted by consensus of the states parties of the NPT, are sources in which you can find “subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”, to quote from the Vienna Convention on the Law of Treaties, Article 31(3)(a). I have used such final document statements fairly extensively in my interpretation of the NPT.
My arguments to this effect have not been uncontroversial, however. Christopher Ford, for example, has opined in our exchanges that NPT Review Conference Final Documents do not contain such statements of subsequent agreement, relevant for treaty interpretation purposes. As he argued in an exchange with me at Carnegie a few years ago, specifically critiquing my 2011 book:
The closest Dan gets to a legal argument for filling out the thinness of Article VI with concrete disarmament content is to declare that the NWS are legally obliged to take every disarmament-related step subsequently called for by the parties at any NPT RevCon. Specifically, he says the NWS’ compliance should be judged according to the degree of their fulfillment of the “13 Steps” described by the 2000 meeting.
To be sure, he is a bit vague about this, admitting that these measures are merely “part of the ‘yardstick’” for assessing NPT compliance, and seeming to accept the point that “at least partial compliance” is possible irrespective of whether or not one has followed the “13 steps.” Nevertheless, Dan clearly means to follow today’s diplomatic conventional wisdom and invest the “steps” with legal import.
This is, to my eye, a weak argument. It’s a shame to have to mention it here, for I dealt with this in my 2007 essay and in his book Dan fails to address the argument I made there. He wants the “13 steps” to constitute a “subsequent agreement” on how to interpret NPT within the meaning of Article 31(3) of the Vienna Convention on the Law of Treaties, but he offers no evidence that the drafters of the “steps” or indeed of any RevCon document ever understood themselves to be preparing such a thing. Certainly the “steps” themselves feature no language suggesting they are intended to have this kind of (or any) legal import, and indeed in many cases they are phrased in ways that would make compliance well-nigh unassessable anyway. (Bolding and Underlining Added. DJ)
However, this new ILC report seems to adopt very much my way of looking at this subject, and specifically cites to my book to demonstrate the point. So I can’t help but feel a bit validated.
I was just reading Avner Cohen’s recent piece on the Marshall Islands case over at the BAS website. In it Cohen writes:
The lawsuit reflects a growing belief among international legal and policy experts (as well as some diplomats) that the time has come for the NPT to be treated—due to its near universal adherence—as part of customary international law by which all states must abide, regardless of whether or not they actually signed the treaty.
Based on this reasoning, the Marshall Islands asks the International Court of Justice to rule that all nine nuclear states are in material breach of their legal obligation to disarm under international law, regardless of their status under the NPT. Currently the international community does not consider the NPT to be part of international customary law; if it were, the treaty would have a legal status similar to that of the international bans on slavery or torture. Should the International Court of Justice make such a ruling, it could elevate the discourse on nuclear disarmament from vague declarations of intentions to stark statements of legally binding commitment.
Cohen is certainly right to identify the question of whether the NPT, or at least Article VI of the NPT, is part of customary international law, as a central question in the Marshall Islands (RMI) case. It is the argument on which the entirety of the RMI’s case against those of the nine potential respondents who are not parties to the NPT, rests. But I thought I would try to provide some clarity to Cohen’s discussion of this question.
The question of whether the NPT, in whole or in part, has entered into customary law is one that has been knocking around in international legal discourse for a long time. I’ve talked with colleagues at conferences about the subject for many years, though as far as I know there has not yet been a focused treatment published on this question. I know some people over the years have told me they were working on one, but I have yet to see it in print. If there is such a treatment out there, I would be happy to have attention drawn to it in the comments.
Generally speaking, broadly-subscribed-to treaties, such as the NPT, are fertile ground for potentially finding that a process sometimes referred to as parallel customary law creation has occurred. This simply means that, even if the principles codified in the treaty were not, prior to codification, a part of customary international law, the very fact of their codification, and even more importantly the subsequent implementation of these principles by states parties, under the (quite correct) impression that these principles are legally obligatory upon them, satisfies the two elements of state practice and opinio juris that together turn a principle into a rule of customary international law.
This phenomenon is quite common in the international legal system. Examples include principles of the 1977 Additional Protocols to the Geneva Conventions on the Law of Armed Conflict, principles of the 1969 Vienna Convention on the Law of Treaties, and principles of the 1982 UN Law of the Sea Convention. In each of these contexts, states who are not parties to the treaties themselves, have recognized that, while the treaty per se is not binding on them, some of the principles codified in the treaty have, through parallel state practice and opinio juris, become rules of customary international law which are binding on them through that separate source of international law.
These examples are also illustrative of another characteristic of parallel customary law, which is that customary law development parallel to a treaty is not an all-or-nothing proposition. In each of the examples cited above, it is only some of the principles codified in the treaty that are considered to have entered into the corpus of customary international law. Not necessarily all of them. This is why, for example, the ICRC’s study on customary law in the law of armed conflict is so important – it is a rigorous analysis of which of the principles codified in the Geneva Conventions and their Additional Protocols have entered into CIL. And that study found that the substance and definitions of the obligations as between the treaty and CIL differs significantly.
So let’s now come back to the NPT. In my 2009 book I wrote that the NPT had not, at least in toto, entered into customary international law, unlike the CWC and the BWC:
On a normative development level as well, the contract treaty nature of the NPT has not given the elements of customary law creation clear universal principles to attach to, in order to enable the creation of parallel custom, unlike in the cases of the Chemical Weapons Convention (CWC) and the Biological Weapons Convention (BWC), to be discussed in detail below. Such parallel customary law in the cases of these other multilateral nonproliferation treaties constitutes an important supplemental source of legal obligation through which even non-parties, and particularly secondary proliferators of WMD technologies, may be bound to the terms of the cornerstone international legal instruments.
I still think that this analysis is correct. However, there are some articles of the NPT that are worded in such a way as to comprise universal obligations upon all states parties to the treaty, notwithstanding they are a part of the treaty’s quid pro quo structure of obligations. The most important of these are Articles IV & VI of the treaty.
As I’ve already explained, there is no problem legally with having individual articles or provisions of a treaty pass into customary international law, even if the entirety of the treaty in which they are found does not. So the question I think becomes, is there sufficient evidence of state practice and opinio juris to support the conclusion that either or both Article IV or Article VI have become principles of customary international law?
Focusing on Article VI, as that is the operative provision in the Marshall Islands case, this basically becomes an empirical question. The tests for state practice and opinio juris are well expressed and defined in international legal sources, and what is needed is a focused study evaluating state practice, and inferences about the sense of legal obligation under which states have taken that action, in order to answer the question of whether the principles in Article VI have indeed been established as customary law. If they have been, then this hugely strengthens the RMI’s case against the four non-NPT parties in the cases.
As I said above, I have not personally conducted such an empirical study. I don’t know if anyone has. If they have, I would invite them to come forward and enlighten us!
But I will give my own sense, which is admittedly anecdotal and qualitative at this point, just from viewing the landscape of state practice and opinio juris on this question through statements made at NPT PrepComs and RevCons, etc. for some time now.
I would conclude that there are indeed a sufficient number of states who consider the obligation in Article VI of the NPT to be a binding legal obligation, and who have acted in conformity with that opinio juris, over a sufficient amount of time, with sufficient consistency, in order to establish the Article VI obligation as an obligation of customary international law, in addition to its codification in the NPT.
It must be remembered that perfect universal conformity with a rule, or recognition of the rule as binding, is not necessary for customary law to form. As the ICJ itself said in the 1986 Nicaragua case:
It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs….the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.
So the fact that there are among the NWS especially, states that do not view the Article VI obligation to in fact be a binding legal obligation, does not per se mean that it is not a binding obligation, nor that it has not entered into customary law. Looking to statements of the Non-Aligned Movement, which represents a supermajority of states, as well as to the 2010 NPT Review Conference Final Document, as I did in some detail in my 2011 book, I think there is ample evidence of opinio juris to support the conclusion that the Article VI obligation is a part of customary international law, even if the NPT in its entirety is not.
This is obviously going to be a highly contentious part of the RMI’s case, particularly against India and Pakistan, who as I wrote previously are two of the only three states (along with the UK) over whom the ICJ likely does have jurisdiction to proceed with this case.
The Organisation for the Prohibition of Chemical Weapons (OPCW) is about to investigate the various allegations of the use of chlorine in Syria over the past few weeks. It is the right decision. It is the only decision possible in view of the many witness accounts and footage available on internet sites. However, the hope that the announcement of the fact-finding mission on 29 April might deter the perpetrator from future chlorine attacks was quickly dashed: a new chlorine bombing took place a day later.
The symbolism of the date cannot be overstated. 29 April was the 17th anniversary of the entry into force of the Chemical Weapons Convention (CWC). 29 April is the UN’s annual Day of Remembrance for all Victims of Chemical Warfare. And now, 29 April is also the day on which for the first time the potential violation of the ban on the use of chemical weapons (CW) by a state party to the CWC was officially recognised. A mere six months after Syria joined the convention. And 99 years after chlorine ushered in the age of modern chemical warfare.
On the same day, a British newspaper, The Daily Telegraph, felt the need to headline that it had the proof that Assad launched the chlorine attacks. It caused a stir, not in the least because the article ended with the claim that the newspaper’s investigation was on a par with OPCW procedures. Hardly.
No stranger to the battlefield of world opinion
It is worth recalling that initial accounts on the chemical attack at Khan al-Assal (near Aleppo) on 19 March 2013 referred to chlorine. Early press reports mentioned 26 fatalities, a figure that would eventually rise into the low thirties, and scores of otherwise harmed individuals. I was not convinced that the observed effects correlated with claims about the agents used. In a March 2013 brief for the EU Institute for Security Studies I wrote:
This claim is intrinsically problematic. Exposure to chlorine stored in a warehouse or near a production installation hit by a shell could account for respiratory problems and skin irritation, but not for a high number of fatalities. One would need a very high volume of the agent to obtain lethal doses in open air; the explosion would most likely destroy part of the agent; and highly recognisable evidence of corrosion at the site of attack could not be missed.
More recent accounts specify that Islamic extremists filled a home-made rocket with chlorine dissolved in a saline solution. The agent would thus amount to Eau de Javel (bleach). Even in its highest industrial concentration of 40%, the agent cannot explain the fatalities, even if one were to assume that a very large number of home-made rockets hit the target in a tight cluster.
A month later, I remained just as unconvinced. In the meantime, having reviewed all CW references I had collected since the start of the Syrian civil war, I was struck by how stories on a particular incident may change with time. As a rule of thumb, everything ultimately turned into sarin. And as suggested in the quote above, sarin could become bleach. It is worth retracing that metamorphosis.
The Khan al-Assal attack of 19 March prompted the Syrian Government to request the UN Secretary General to conduct an investigation of alleged use. As already mentioned, reports at the time were referring to chlorine or witnesses recalling a chlorine smell. Chlorine was also what the Syrian government reportedly cited in its letter to Ban Ki-moon. Already early in December 2012, the Syrian Foreign Ministry had warned of possible insurgent use of CW in letters to the UN. It alluded to a Syrian-Saudi factory SYSACCO near al-Safirah (southeast of Aleppo), which had just been captured by militants from the jihadist Al-Nusra Front. That factory produced sodium hydroxide (caustic soda) and hydrochloric acid (HCl). Not only did this claim prepare a plausible foundation for the chlorine allegations three months later, it also gets close to the bleach (sodium hypochlorite), commercially known as Eau de Javel in Europe.
Four days after the alleged attack we learn that ‘the Syrian military believe that a home-made locally-manufactured rocket was fired, containing a form of chlorine known as CL17, easily available as a swimming pool cleaner. They claim that the warhead contained a quantity of the gas, dissolved in saline solution’. Now, what form of chlorine is Cl17? A look at the Mendeleev’s Periodic Table teaches us that Cl is the chemical abbreviation of chlorine and 17 is its chemical number. However, this demystified CL17 is contained in a saline solution, which is, of course, sodium hypochlorite. I use it to disinfect my toilet. Eau de Javel as a chemical warfare agent, that was new to me. (However, do note the source of that story.)
So, please forgive me if I seem to demand a higher level of convincing.
Questions I would like to see answered
- From some of the footage available on the internet, I do think that a toxic substance must have affected a number of people. However, I am less sure about the more precise elements in the accusations. For example, based on the pictures of one of the flasks, I gather that a substance (in this case, liquid chlorine, I presume, but then letters with white powder are also often marked ‘anthrax’) was contained in a small industry-standard vessel (apparently of Chinese origin & and marked Cl2). What I would like to know is how much explosive it would take to break open such a container? How much chlorine (if this is what was inside) would have been destroyed or burned by that explosion? What are the dynamics of chlorine release in the scenario that the amount of explosives is sufficient just to break the seal / valve of the vessel? I have been told that such an amount would be very small, but how does the resulting aperture affect the dynamics of gas release? Was the vessel contained inside a drum (i.e., a confined space), as some reports suggest? If so, how does that affect the dynamics of the explosion and gas release? What would the impact of an explosive devise have on the rate of release of the chlorine and how much of the chlorine would actually remain after the rupture of the container?
- How much chlorine (if this was what it was) was inside the vessel? How would sufficient chlorine be built up locally to seriously injure or even kill people? In what environment was the chlorine released (e.g., closed space of a room or outside in the open air)? Chlorine is perceptible to humans in very low concentrations, so why would people remain in close vicinity of the devise long enough to absorb a harmful dose of chlorine? Following the blast, I have been told, people in close proximity of the bomb may be dazed and confused and in their disorientation may consequently not escape from the area. Was this the case?
- Would an industry-standard container rupture simply by dropping it from a helicopter?
- One film clip on Brown Moses’ blog shows a helicopter dropping something, followed by a – in my mind – big flash. Would chlorine withstand the forces and heat of such a detonation? Detonation of chlorine was pretty ineffective in Iraq (at least as regards the impact of chlorine on the targeted group of people).
- Are there any reports of corroded metals in the vicinity of the area of release? (Moisture in the air acts as a catalyst for chemical reactions with chlorine, and the agent is very aggressive on metals and alloys.)
- Why do press reports refer to a ‘yellow’ smoke or powder (as one Beirut-based journalist described the observations to me)? Chlorine tends more towards pale green, sometimes with a yellowish hue. However, the yellow might dominate in a sun-swamped environment and an overall sandy-colour backdrop. I do not know. A BBC clip (2nd clip, middle article, final seconds) posted on 28 April, shows yellow smoke from a barrel bomb attack in which no chlorine was used. So, can we see similarities of symptoms and phenomena between different types of attack, but which witnesses do not or cannot differentiate? Another example: as for the reports of a chlorine smell near the scene of the Khan al-Assal attack in March 2013, chemical weapons expert and chief operating officer of SecureBio, Hamish de Bretton-Gordon, then said that conventional high explosives can also produce an odour which might be mistaken for chlorine.
- Would one expect a hissing sound as the chlorine under pressure escapes from the container? Have we seen any such witness accounts?
- Are we looking at a case of what I call ‘opportunistic use of toxic chemicals’, where people (government soldiers, their allies, or insurgents) took hold of containers at an industrial site and improvised a new device of war? In other words, are we looking at a case of deliberate preparation for chemical warfare by whoever is responsible for the events?
A good call
The OPCW Director-General’s decision is the right one. Ambiguity and speculation must be removed—and fast. The lack of precise timing (or explanation of the necessary preparations and precautions) in the OPCW press statement is worrying, and not just because this is the first time the organisation is called upon to launch an investigation of use all by itself (in previous investigations the OPCW assisted the UN Secretary-General, as Syria was not yet a party to the CWC). Chlorine is a very volatile element, so the critical question is how long the agent might reside in the soil, on other surfaces or inside containers? The answer is not long, especially not in the heat of Syria.
Still, the exercise should not be futile. Investigations of alleged use typically apply various methods (medical analysis, identification of plausible witnesses and corroboration of individual stories, matching pictures and film footage based on the stories by the carefully selected witnesses, etc.), whose independent results should contribute to building a more or less consistent picture of events. The OPCW inspectors would deploy sophisticated detection equipment. Any evidence brought back from the incident sites would be subject to strict procedures to preserve the chain of custody and then divided over multiple OPCW-certified laboratories for analysis.
And oh, just as a small afterthought: with an OPCW investigation, one of course does not have to wonder who has paid the piper.
[Cross-posted from The Trench]