I just had to bring attention to this particularly excellent piece by our friend, Ambassador Peter Jenkins, over at LobeLog. In it, Peter makes important legal points, all of which I agree with. He also persuasively argues that if the nuclear talks between the P5+1 and Iran fail, sympathies in most of the world will be on the side of Iran. I agree with this assessment also.
Here is Peter’s piece in it’s entirety:
Will the World Blame Iran if Nuclear Talks Fail?
By: Peter Jenkins
The remarks of US Under Secretary of State Wendy Sherman at a symposium in Washington, DC on Oct. 23 contained at least one very questionable assertion: “We hope the leaders in Tehran will agree to the steps necessary to assure the world that this program will be exclusively peaceful…If that does not happen, the responsibility will be seen by all to rest with Iran.”
I suspect much of the world will see this assertion as presumptuous and self-righteous. Most of the 189 parties to the Nuclear Non-Proliferation Treaty (NPT) will want to judge for themselves where responsibility for failure lies, and it is not a foregone conclusion that they will decide to point the finger of blame at Iran.
On the contrary, many members of the Non-Aligned Movement (NAM) will applaud Iran if it seems to them to have been steadfast in defending what the NAM considers to be a sovereign right, enshrined in the NPT: the right to use uranium enrichment technology for peaceful purposes.
Most of these will applaud on principle, and also because, sad to say, since 1991 they have come to see the US as a bit of a bully—a bully, what’s worse, who appeases another state, a state which has never adhered to the NPT and is notorious for behaving badly.
A few will applaud because they want to keep open for themselves the option of enriching uranium for peaceful purposes. They will not have forgotten President George W. Bush’s proposal to divide the nuclear technology world into haves and have-nots, and they will suspect that the US has been trying to use Iran as the thin end of an unwelcome wedge.
Even in Europe, away from the NAM, there will be people who will be more inclined to blame the US for having made unreasonable demands than to blame Iran for having taken inadequate steps to “assure the world that its nuclear program will be exclusively peaceful.”
Some of these people have never doubted the peaceful nature of Iran’s nuclear program. Some would like to be trading with, or investing in Iran and are sick of sanctions. Some will question the reasoning behind the blameless objective of obtaining an “exclusively peaceful” assurance.
According to the NPT, states must assure the exclusively peaceful nature of their nuclear programs by submitting all the nuclear material in their possession to international inspection (the safeguards system of the International Atomic Energy Agency, IAEA). Leaks suggest that Iran is more than ready to do this—indeed is ready to submit to an inspection regime that is far more intrusive than the regime envisaged when the NPT first entered into force.
So if the negotiations fail, it will not be because Iran declined to provide the peaceful assurance envisaged by the US and other framers of the nuclear non-proliferation regime. It will be because the US is trying to impose on Iran a later, more radical interpretation of “peaceful assurance.”
What the US wants is an Iranian nuclear program that cannot be anything other than peaceful—a program in which the availability of dual-use nuclear technologies, such as enrichment, is so curtailed and restricted that the non-peaceful option is excluded.
That would be fine if it were consistent with the NPT. But it is not.
So the US has no legal right to demand that Iran, to demonstrate the peaceful nature of its program, cut back to a few hundred or a few thousand centrifuges and maintain that restriction for decades–perhaps until the US has gotten over its dislike and distrust of the Islamic Republic, and no longer has to appease Israel?
Ambassador Sherman probably realizes this, because her remarks contain an attempt to justify US demands: “The Security Council imposed sanctions on Iran…because the government violated its obligations under the Nuclear Non-Proliferation Treaty, engaged in secret nuclear-weapons-related activities, and was less than transparent in reporting to international agencies. That past has created a thick cloud of doubt that cannot be dissipated by Tehran’s words and promises alone.”
This, however, is a political, not a legal justification for imposing a radical interpretation of “peaceful assurance.” Iran’s IAEA safeguards violations obliged Iran only to make the declarations that Iran had failed to make earlier. They did not oblige Iran to accept restrictions on the peaceful use of any technology.
The rest of Ambassador Sherman’s justification is baseless. The IAEA has no proof that Iran has engaged in nuclear-weapon-related activities or violated any NPT obligation apart from the safeguards obligation; and the UN Security Council, which failed to determine that Iran’s nuclear program is a threat to peace and security, demanded suspension of enrichment pending a diplomatic solution, not curtailment.
In offering this critique of Ambassador Sherman’s remarks I am not trying to clear the way for Iran to acquire nuclear weapons. I am trying to change a US mind-set that is likely to prove fatal to reaching an agreement with Iran, since I believe that an agreement can better discourage Iranian proliferation than any viable alternative.
My contention, to be clear, is that the US has no legal right to insist on Iran cutting back its uranium enrichment capacity to a few thousand centrifuges. Instead, the US must be content with making a political appeal to Iranian intelligence and self-interest. Iran’s negotiators can be asked to recognize that enrichment restrictions are a confidence-building measure that can serve the interests of both sides, and to make a good offer.
If the US then concludes that its BATNA (best alternative to a negotiated agreement) is better than what Iran is ready to offer, it can terminate the negotiation. But at that point it should not assume that the rest of the world will judge the US to have been the more reasonable or the more righteous of the two parties.
Readers will know that I have on several occasions criticized the U.S. nonproliferation epistemic community for being too closely associated with the U.S. government. Here’s how I put in in a post a couple of years ago:
A colleague in D.C. once said this to me about the U.S. nonproliferation epistemic community – and by this community we both meant the entirety of the various NGOs and think tanks and the few University based centers that focus on nonproliferation studies in the U.S.: that the community is very D.C. centric, cliquish, incestuous and self-referential, to its detriment. These words have really stuck with me, because I find them to be absolutely true, and both insightful and parsimonious as I’ve observed the community over the years.
I would take it even further and say that in addition, in my opinion, the whole U.S. based nonproliferation experts community – with few exceptions – is systemically biased toward support of USG positions on all the top nonproliferation issues. They maintain an essentially common narrative and set of emphases that is in line with, and that provides support for, the narrative and emphases of the USG, with only the smallest amounts of quibbling around the edges (Albright will talk all day long about his “aluminum tubes” work). I think that there is in the work of the U.S. nonproliferation epistemic community far too little real, independent evaluation and criticism of USG positions. As I see it, the U.S. nonproliferation community almost acts as a second wave of apologists for U.S. policy, after the USG itself – though it sometimes shrouds this effort in a lot of technical and sometimes academic-looking jargon. But in the end what the U.S. nonproliferation community ABSOLUTELY DOES NOT DO is serve in the role of an independent, rigorous, analytical check on USG nonproliferation positions, as it could and should do, and as the nongovernmental nonproliferation community in other countries does.
And I think there are some clear reasons for this. Much moreso than in other countries, the members of the U.S. based nonproliferation community tend, with very few exceptions, to
1) have been employed by the USG in the past;
2) want to be employed by the USG in the future;
3) be funded by or hope to be funded by the USG; and/or
4) want to maintain the access and good favor they have with USG officials, for the sake of information and for the sake of invitations to cool events, etc.
Basically what I’m saying is that they are biased towards the positions of the USG, because of their overly close personal and institutional associations with the USG, and because they see their own professional success as being tied to the favor of the USG.
I’d say the news that William Burns, the outgoing U.S. Deputy Secretary of State, will be the new President of the Carnegie Endowment, falls nicely into line with my observations. Under his leadership, can you imagine that work by Carnegie staff will be allowed to cross certain lines of criticism of the U.S. government’s nonproliferation policies? Me neither.
I saw today a report of a presentation given to the UN Security Council by the Ombudsperson of the UNSC’s Resolution 1267 Committee (hat tip to Maya Lester over at the excellent European Sanctions blog). You can see the full text of the Ombudsperson’s report here. The issue of human rights related due process and UNSC sanctions, particularly in the nuclear nonproliferation area, is one I’ve written about before here a number of times, noting the various court judgments in the EU annulling EU sanctions adopted pursuant to UNSC directives. I think this new Ombudsperson’s report is important in bringing the fundamental human rights issues involved to broader attention. As Judge Prost says in her report:
While international law in this area continues to evolve, from experience one point is clear. A review of the relevant jurisprudence, as well as interaction with human rights officials, courts and bodies conveys a clear and consistent message. The imposition of targeted sanctions which directly affect the rights of individuals and entities, without the availability of an independent review mechanism which can deliver an effective remedy, is a practice inconsistent with fundamental human rights obligations.
A new interview by our good friend Bob Kelley here at Truth Out (originally at Democracy Now). Bob is probably the most credible independent technical expert on nuclear weapons, so his opinion is worth a lot.
I think Bob does a good job here of rightly praising the IAEA for its competence and track record in doing the job it’s actually supposed to do – nuclear materials accountancy – while at the same time rightly criticizing the IAEA’s forays into areas in which it has neither legal authority nor technical competency – e.g. weaponization.
Over the past few weeks several press reports have suggested that the Islamic State of Iraq and the Levant (ISIL) have resorted to chlorine use in attacks in Iraq and Syria.
The grouping is no stranger to chlorine. In some earlier incarnation it was known as al Qaeda in Iraq (AQI) and later it rebranded itself as the Islamic State of Iraq when it explicitly began trying to control territory. Harsh imposition of its strict interpretation of Sharia law and extreme violence towards anybody refusing total subjugation to its rule soon had Sunni tribal leaders uniting in resistance early in 2007. They also began cooperation with forces of the US-led coalition occupying Iraq since 2003 and the Shia-dominated Iraqi government. AQI started mounting large-scale operations involving several hundreds of fighters to capture local seats of power. During the first half of 2007 suicide attacks with lorries rigged with a large quantity of explosives evolved from isolated incidents to terrorise and destabilise societies to a tool integrated in assaults against government centres and fortified positions. After an isolated attempt in October 2006, AQI launched almost 20 chlorine attacks in the first half of 2007.
This posting is a first effort to understand the dynamic behind ISIL resorting to chlorine and perhaps some other toxic chemical substances in military operations in Iraq and Syria. If current chlorine attacks can be confirmed, then some interesting parallels with the brief episode in Iraq may be discerned (but the hypotheses do require further study to be confirmed):
Here’s a great new piece by Jonathan Tirone, one of the very best reporters on IAEA matters. A number of important issues covered, including how the IAEA handles intelligence information – a theme also raised in the Russian statement I posted yesterday. Also some critiques of the IAEA’s institutional culture as it has evolved under the leadership of DG Amano, and the links between that culture and the credibility problems the IAEA is experiencing in the perception of some states.
I don’t know if anyone has ever wondered, but I know I criticize the IAEA a lot, and it might be natural to ask why. It’s certainly not that I don’t think the IAEA is an important international organization. Quite the contrary. I think the IAEA is a vital international institution, that at its best plays an indispensable role as an independent, technical safeguards body, able to bring some objectivity to disputes between states about the implementation of nuclear safeguards obligations. I think the IAEA, and former DG ElBaradei, deserved their shared Nobel prize for the exceptionally important role they played in the lead up to the 2003 invasion of Iraq.
I criticize the IAEA not because I want it to go away, or be less influential. Exactly the opposite. I want it to retain its positive influence. And to do that, the IAEA has to take the constructive criticism that the people quoted in this article, and in the Russian statement, are offering about problems in the IAEA’s institutional culture and modus operandi, and actually make the necessary changes so that the IAEA remains capable of having that influence.
I LOVE this statement that was just made by the Russian IAEA representative, Grigory Berdennikov, at an IAEA symposium. I think he hits on so many of the right themes, and makes important observations and recommendations. Look at what he says about the use of intelligence information by the IAEA, and also what he says about the completeness/correctness issue (I hope Laura Rockwood is listening). I’ve inserted the original document above, but I’ll also paste below the text in full. Highly recommended reading.
STATEMENT BY THE HEAD OF THE DELEGATION OF THE RUSSIAN FEDERATION,
AT THE SYMPOSIUM ON INTERNATIONAL SAFEGUARDS: LINKING
STRATEGY, IMPLEMENATION AND PEOPLE
Vienna, 20-24 October 2014
Mr. Chairman, respected participants of the symposium,
First of all, I would like to note that Russia was one of the originators of the IAEA safeguards system and throughout the Agency’s history consistently supported its effective implementation and development. We always felt that the
safeguards system is crucial for the wellbeing of the Non-Proliferation Treaty and the regime build on its foundation. The safeguards system is not something cast in stone or frozen but is a living organism that for its very survival has to change in
order to adapt to the changing world and the growing demands placed upon it by the ever more complex requirement of preserving peace and international security in conditions of rapidly developing technologies and changing relationships among nations. However in the process of such adaptation the system should preserve its core features and functions which have been tested by time. It should remain objective, depoliticized, technically credible, understandable for Member States
and based on rights and obligations of the Parties in accordance with Safeguards Agreements they have concluded.
Classic safeguards were fully in line with those principles. They were based on facility-specific approach and were underpinned by technical safeguards criteria that were established for each type of facility or location outside facilities and
specified the scope, the normal frequency and the extent of the verification activities required to meet the inspection goals. In other words, verification activities were predetermined by quantity and quality of nuclear material as well as
quantity and type of nuclear facilities in a State. This system was by nature resistant to political or other extraneous considerations and generated very little risk in terms of undue interference into the affairs of States unrelated to the nuclear sphere. In addition it was universal in the sense that verification requirements for facilities of certain types were the same for all States with the same type of legal obligations regardless of their affiliation or political system. Member States were assured that any decision by the Secretariat was based on good technical sense and science.
Now the situation has become more complicated. A concept of safeguards implementation at State-level (the SLC) has emerged and has been developing by the Secretariat. It had many names, however, the main idea was the same –
frequency and intensity of verification should be determined by the Secretariat for each State as a whole, not for each facility type. This should be done on the basis of all available safeguards relevant information including provided by third Parties and using so-called State-specific factors. This concept is claimed to have certain advantages, particularly in terms of achieving some economy of the scarce resources, including human efforts by concentrating on points of real concern. But it also has serious vulnerabilities. First and foremost it makes safeguards implementation prone to politicization. That is why it is essential that Member States are assured that possible modifications in frequency and intensity of safeguards activities in a State are caused by honest technical analysis of facts on the ground and not by individual or collective biased thinking or prejudices. The IAEA should remain an objective mechanism for verifying non-proliferation obligations of States. It should not become an instrument for political pressure against certain countries or a means for rewarding their political loyalty. In recent years Russia as well as many other IAEA Member States has taken serious efforts aimed at ensuring that the new safeguards system is equipped with necessary protective mechanisms.
Those of you who find themselves in the London area on 28 October may be interested in this panel event on nuclear weapons that I am chairing. The panel will discuss the legality of the use of nuclear weapons under different international law regimes almost 20 years from the Advisory Opinion of the International Court of Justice. The event will also celebrate the book launch of: Nuclear Weapons Under International Law, G. Nystuen, S. Casey-Maslen and A. Golden Bersagel eds (Cambridge University Press, 2014). Attendance is free, but please register by emailing Eliza Watt.
There’s a lot of buzz in the Twitterverse about this new article in the NYT on the subject of the caches of pre-1991 chemical weapon munitions that have been found in Iraq since the 2003 invasion, and the injuries that they have caused, particularly to U.S. soldiers serving in Iraq.
The piece is very important and paints a terrible picture of the wounds received by U.S. soldiers who inadvertently came into contact with these discarded and most often buried munitions. It is a damning portrayal of how the U.S. military mishandled both the facts concerning the existence of these caches, as well as the care for the injured soldiers.
The piece also provides further information on the number and extent of these caches than I’ve seen before. It says that in all 4500 such non-militarily-usable, yet still extremely dangerous, munitions have been discovered. It further observes, disturbingly, that at least some of this stockpile is now in the hands of ISIL; a topic also addressed recently by Joe Cirincione and Paul Walker here.
There has been some misinterpretation among some of the less sophisticated denizens of the Twitterverse, that this report constitutes evidence supporting the U.S. narrative justifying the 2003 invasion. However, the article itself points out several times, correctly, that the fact of the existence of these caches is not a revelation. It’s been known since the 2004 Duelfer Report. These munitions are old, discarded and non-militarily-usable. They are not the droids the empire was looking for. So no, this article does not provide any support to the (still) erroneous U.S. justification for the 2003 Iraq war.
What it does do is several things. First and foremost, as I mentioned above, it is a shameful narrative about how the U.S. government and military treated U.S. soldiers who were injured by these discarded CW munitions. Second, it does provide greater understanding of the scope of Iraq’s existing caches of still very dangerous chemical weapons, including information about where many of their components came from (hint – the West).
There are a couple of arms control law points that stuck out to me in this article. One is the question of whether the chronicled failures of the U.S. military to properly report and dispose of the CW munitions they found in Iraq constitute a violation by the U.S. of the Chemical Weapons Convention. I honestly haven’t had time to give this a lot of thought yet (I’m teaching three courses this semester), but I would be interested in the views of CWC experts like Jean-Pascal Zanders on this question. My first impression would be that, since these were not CW on U.S. soil, or in any way owned by the U.S., therefore U.S. responsibility would not be triggered. I suppose the only thing that is holding me back from that tentative conclusion is the fact that, as an occupying power, the U.S. was legally responsible at least to some extent for what went on in their occupied territory during the period of occupation. Would this responsibility extend to reporting and disposal of old CW munitions they found in Iraq? I honestly don’t know.
One point that is driven home forcefully to me by this article is the clarity it provides concerning the moral and legal responsibility that Western nations have for supplying Iraq with chemical weapons-related-materials during the 1980’s with (as we now know) full knowledge that they would be used against Iran’s military, and a reasonable foreseeability that they would also be used against civilians (which they were). Readers will recall that I posted a paper written by one of my students on this subject last year, and I continue to recommend it. This is a truly shameful chapter of history for Western countries, including the United States. To have knowingly supplied chemical weapons-related-materials to Saddam Hussein, knowing good and well that he would use them. I find that unconscionable, and I have never heard anyone offer any kind of reasonable explanation or justification for it. Nor, I think, could there be one.
[Cross-posted from The Trench]
Yesterday the Smithsonian “Smartnews” site featured the article Robot Ships And Pepper Spray—the Latest in Pirate-Fighting Tech. According to the piece, UK researchers are actively looking into mobilising capsaicin – the active ingredient in pepper spray – to fend off pirate attacks at sea:
The age of naval battles between huge ships on the high seas seems to have passed into distant memory. Instead, some of the most devastating attacks on giant vessels in recent years have been executed by boats small enough to get through the larger ships’ defenses.
But now, governments around the world are working on technology designed to stop these attacks. In the U.K, researchers are working on a remote monitoring system—called the MATRiX system—that resituates the traditional responsibilities of a lookout to land-bound control rooms. The system has a connected network of anti-pirate deterrents attached to the outside of the ship. If a threat is detected, the deterrant [sic] system releases two relatively simple tools—nets that will catch in the propellers of attacking boats and a fog of capsaicin, the active ingredient in pepper spray (and bear repellent).
My question is: how does that fit with international law?
It stretches the understanding of non-prohibited purposes as defined in Article II, §9(d) of the Chemical Weapons Convention (CWC), which allows the use of riot control agents for law enforcement purposes, including domestic riot control. The concept of “law enforcement” is vague in the CWC and efforts are underway to clarify the notion in the context of various research and development activities concerning incapacitants.
In this particular case, however, it seems that not even law enforcement officials would the responsible for the decision to release the capsaicin against pirates (unless they are the ones sitting in “land-bound control rooms”). The afore-mentioned article suggests that the device would be deployed by the merchant ship under attack. Even if law enforcement officials would be at some land-based centre, would they be able to override the captain’s authority or would they just give the captain the green light to activate the system when needed? If the captain must call in authorisation from land, what country’s jurisdiction would come into play? The country under whose flag the ship is sailing? The country on whose territory the control rooms are located? The country whose nationality the law enforcement officials possess?
In light of the ongoing privatisation of security (who actually uses force to defend the ships against attacks? who sits in the land-based control rooms?), the blurring of boundaries between armed conflict and counter-terrorism / -crime operations, and the banalisation of riot control agents, it would appear that legal clarity about this new contraption should be established by the relevant national authorities and the international community (represented by the Organisation for the Prohibition of Chemical Weapons—OPCW).
Having said that, capsaicin is a toxin—a poison produced by a living organism. As such the legitimacy of its application is also covered by the Biological and Toxin Weapons Convention (BTWC). That treaty does not distinguish between whether the compound was derived from the chili pepper or produced synthetically. More importantly, however, the BTWC does not make an exception for law enforcement purposes. This leaves the question as to whether “law enforcement” can be considered to be one of the “other peaceful purposes” in Article I.
As it stands now, nobody has really been able to give me a sound explanation why the provisions of the CWC should supersede those of the BTWC.
I am open to good legal arguments.