Many of you will have seen the reports that the US is alleging that Russia has violated the 1987 Intermediate Nuclear Forces treaty. This is certainly a subject ripe for analysis here at ACL, and I would invite members of the community to engage with it in the comments.
I guess to me this seems like a fairly minor treaty violation, if it is a violation at all. And I suspect that it wouldn’t be high on the US administration’s list were it not for the politics surrounding Russia and its Ukrainian adventurism of late. And of course Russia could always simply withdraw from the INF treaty, much as the US withdrew from the ABM treaty in 2003. So its hard for me to get too worked up about this issue.
I’m in Sydney, Australia for the next 10 days, teaching a short course at the University of New South Wales. The cool weather (it’s winter here, of course) is a nice break from the oppressive heat of the Alabama summer.
I did, however, come across an article on the Arms Trade Treaty recently in the Goettingen Journal of International Law, and wanted to share it. On first glance it looks like a very useful piece, outlining the features of the ATT and providing commentary. I haven’t read it closely yet. You can find it here. Maybe some of the conventional arms specialists in the ACL community can engage with it in the comments.
In other news, it’s certainly a messed up world out there. I’ve basically given up on trying to keep up with the various crises all over the place. It seems like most of the middle east and much of north africa is at war, or on the brink of it. The Iran nuclear negotiations broke off without a deal, though the parties have agreed to an extension of the interim agreement. I don’t know – as I read the tea leaves of the legislatures in both countries wanting more of a hand in shaping the negotiations, I’m starting to fear that, once again, an auspicious moment in the affairs of nations has been lost. The more time passes, the more likely it is that something, either of intention or circumstance, will derail the negotiations and prevent a deal. If that happens, it will be most unfortunate.
I would like to alert our readers on a chapter I have written for Grø Nystuen, Stuart Casey-Maslen and Annie Golden Bersagel’s forthcoming edited book Nuclear Weapons under International Law (Cambridge University Press, 2014). My contribution, which can be downloaded from here, discusses the international law issues arising from the treaties establishing nuclear weapon-free zones in inhabited regions of the world. In particular, it focuses on the proposed zone free of weapons of mass destruction in the Middle East, identifying the potential legal problems and making suggestions for possible solutions.
Comments are as always welcome.
The world is shocked and horrified by the destruction of a civilian aircraft with 300 people on board over eastern Ukraine, apparently caused by a surface to air missile launched by pro-Russian separatists. Information is obviously still coming in, but it certainly does appear that a sophisticated Russian-made and Russian-supplied missile system was used. This raises the question, still to be determined, of exactly what link exists between the Russian military and the firing of the missile that brought down the aircraft.
In a CNN article today a “senior U.S. official” is quoted as saying:
[T]he responsibility is Russia’s whether they had Russian personnel there or they gave them equipment and an instruction manual.
These separatist leaders are taking orders from Russia and (Russian President Vladimir Putin) has to realize the consequence of sending heavy and sophisticated weapons to a gang of sociopaths, extremists, violent thugs, nationalists and agents who are just given weapons and told to make chaos.
That sounds about right to me. And it has echoes in other cases of sophisticated conventional weapons being supplied to poorly trained, questionably responsible fighters in other situations as well. Immediately to mind came, among other cases, the US supply of weapons to the Mujahideen (later to become the Taliban) in Afghanistan in the 1980’s, and the much more recent US supply of conventional arms to the Iraqi army, many of which were left on the battlefields of northern Iraq when the soldiers disrobed themselves and fled, and were picked up by the advancing ISIS fighters, who are now using them to wreak havoc in Syria.
Perhaps all cautionary tales about irresponsible proliferation of conventional weapons.
. . . from Greg Thielmann in this op-ed in Reuters today:
Though discussions between Iran and the International Atomic Energy Agency (IAEA) are proceeding in parallel to the six-power nuclear negotiations with Iran, some argue that Tehran must “come clean” on past military experiments before it can be trusted to make new commitments. But reaching and implementing a nuclear agreement should not be held hostage to resolving all the complicated questions about the possible military dimensions of Iran’s past nuclear programs.
I’m following the news on the negotiations like everyone else, and at the moment it doesn’t seem to be looking good for reaching a comprehensive agreement by this weekend. In fact it appears that there is a resignation among the negotiators to opt for an extension of the current interim agreement, and come back to the negotiating table in August or September.
I don’t have a whole lot that’s original to add to the reams of commentary about what should happen here. I’m glad to see some people criticizing the P5+1 for their misplaced focus on denying Iran “breakout capability.” Paul Pillar and Steve Walt have written very good pieces on this recently. I think the P5+1 negotiators should take their advice and not press for unrealistic limits on Iran’s enrichment capability.
I think the window for making a deal will not last forever, and that Iran has already given a lot by way of concessions on Arak and its enrichment program. Its time for the P5+1 negotiators to realize that the deal isn’t going to get much better, and that not making a deal could result in missing this fleeting opportunity altogether.
If you recall, ACL was included in the ABA Journal’s list of 100 best legal blogs for 2013. A great recognition, and much appreciated.
The ABA Journal has now sent out its call for nominations for the same list for 2014. If you would like to nominate/support ACL for this recognition, please do so at this link. Thanks in advance.
Readers will know that I wrote back in April about the surprise cases filed by the Republic of the Marshall Islands (RMI) against all nine states possessing nuclear weapons. There have recently been some procedural updates, setting dates for the filing of memorials, and a response by India on jurisdictional grounds.
As I’ve learned more about the case, and particularly about the lawyers who are representing the RMI, I have become increasingly concerned about the prospects for this case as a strong challenge to the nuclear weapons possessing states on the basis of NPT Article VI.
If you look at the people who are on the RMI legal team, and particularly those who have been on it from the beginning and, as I understand it, played a leading role in persuading the RMI to bring the case, you will see that they are mostly anti-nuclear activists connected to a number of NGO’s, including the Lawyers Committee on Nuclear Policy, and the Nuclear Age Peace Foundation. You can see a listing of them here. My concern about this is having the RMI’s legal case led by people who certainly feel passionately about the issue of nuclear disarmament, but who are not themselves real experts in nuclear disarmament law. Some of them write a lot about it, but mostly in activist circles and outlets, and not in serious, scholarly places.
A number of these people were intimately involved in bringing the infamous 1996 advisory case to the ICJ on the threat or use of nuclear weapons. As I teach my students every year, that case was doomed to a disastrous judgment from the start, because of the badly crafted legal question certified to the court in the first place. Basically, bad lawyering put the Court in a bind and ultimately produced the advisory opinion which has been so roundly criticized in legal scholarly circles.
What I’m afraid of is that, because the RMI case is being led by a lot of the same people, who are passionate activists for nuclear disarmament but not real experts in nuclear disarmament law themselves, a similar result will occur in this case of incompetent legal argument leading to a judgment that is either useless or, much worse, allows those on the ICJ from the nuclear weapons states to take advantage of the weak arguments of the RMI legal team, to influence the rendering of a judgment that will interpret NPT Article VI so broadly and weakly that the judgment will become an impediment to the nuclear disarmament movement. That really concerns me.
And looking at the RMI’s complaint against the UK filed with the Court in April – one of the few cases that is actually likely to go forward to the merits – unfortunately provides support for my concern. You can see it here. Far too much reliance on the marginal dictum (and that’s what it was) from the 1996 advisory opinion about NPT Article VI, and not nearly enough substantive analysis of the law. If the RMI legal team doesn’t step up its game significantly in the memorials, and in oral argument, the UK FCO lawyers are going to take them apart on the interpretation of Article VI.
I’ve written a lot on the subject of NPT Article VI, and so I have a significant professional investment in seeing any case on the subject at the ICJ argued well and brought to a positive conclusion, with a strong judgment by the Court interpreting Article VI as a provision with substance, which it is.
When activists with passion but little substantive expertise convince a state to bring a case to the ICJ in order to try and move their agenda forward, it’s an inauspicious beginning to what I fear will be yet another badly lawyered nuclear weapons case before the ICJ.
I’m very pleased to host another guest post from Dr. Daniel Rietiker. This time Daniel provides a review and commentary of the recent decision of the U.S. Supreme Court in the Bond case.
Chemical Weapons before the US Supreme Court: Bond v. United States, June 2, 2014 (case note)
Daniel Rietiker, PhD
It is rare that the Supreme Court of the United States deals with arms control or disarmament issues. It did so recently and delivered its opinion in the case of Bond v. the United States on June 2, 2014. The case arose from a lurid domestic dispute that started when a Pennsylvania woman, Ms. Bond, a microbiologist, learned that her husband was the father of her best friend’s child. This curious case deals with the obligation to implement the provisions of the 1993 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction (CWC), and there deserves the following brief considerations.
[For the text of the opinion: http://www.supremecourt.gov/opinions/13pdf/12-158_6579.pdf%5D
The Facts of the Case
Petitioner Bond sought revenge against H with whom her husband had carried on an affair. She stole a quantity of 10-chloro-10H-phenoxarsine, an arsenic-based compound, from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate, a chemical commonly used in printing photographs or cleaning laboratory equipment, on Amazon.com. Both chemicals are toxic to humans and, in high enough doses, potentially lethal. It is undisputed, however, that Bond did not intend to kill H.
She then spread the two toxic chemicals on H’s car, mailbox, and door knob in hopes that H would develop an uncomfortable rash. On one occasion H suffered a minor chemical burn that she treated by rinsing with water, but Bond’s attempted assaults were otherwise entirely unsuccessful. The local authorities decided not to pursue the matter, but federal prosecutors charged Bond with violating, among other things, 18 U.S.C. Section 229(a), that is based on the 1993 Chemical Weapons Convention to which the US is a party. Bond moved to dismiss the chemical weapons charges on the ground that the Act violates the Tenth Amendment. When the District Court denied her motion, she pleaded guilty but reserved the right to appeal. The Third Circuit initially held that Bond lacked standing to raise her Tenth Amendment challenge, but the Supreme Court reversed. On remand, the Third Circuit rejected her Tenth Amendment argument and her additional argument that Section 229 does not reach her conduct.
I just wanted to draw attention to several cases recently decided by the EU General Court in which EU sanctions against designated individuals and businesses allegedly connected to Iran’s nuclear program have been annulled. These are just the latest in a growing line of cases in both the EU General Court and the European Court of Justice reaching similar decisions regarding EU sanctions targeting Iran’s nuclear program, which are essentially attempts to implement UN Security Council sanctions against Iran. I’ve written about this issue before on a couple of occasions. The EU Sanctions Blog has a great run down of the three recent cases here, here and here. I’m particularly pleased to note that the Sharif University of Technology was represented in its case by my friend Matthew Happold. See the text of the court’s judgment in this case here. Congratulations to Matt and to the University.
In terms of the legal merits of these cases, they really are just a continuation of the same bases on which earlier cases in this line have been decided. Basically the EU courts are requiring the EU and state governments to provide evidence on which the sanctions are based, and the governments involved are refusing to do so. Thus, as a basic matter of due process, the court has decided that the sanctions cannot stand on a lack of proffered evidence. A very sound holding in my view.
Hopefully, of course, the current round of P5+1 negotiations with Iran will produce a comprehensive agreement before the July 20 deadline, and this will lead to these EU sanctions being repealed, as part of a normalization of relations between Iran and the West. I think it is reasonable to expect that both the UN Security Council and the EU will be willing and able to withdraw the sanctions they have imposed against Iran over the past ten years, pursuant to such a comprehensive diplomatic agreement (as long as the US administration chooses to at least not veto such a decision by the UNSC). I have just about zero confidence, however, that the US government will be able to implement meaningful sanctions relief promised under such a comprehensive agreement. As I’ve said before, I think the biggest impediment to implementing a comprehensive agreement between Iran and the West over Iran’s nuclear program is the US Congress.