Yes, There’s a Legal Gap on Nuclear Weapons Use. But It Isn’t That Big.

(Cross posted from Arms Control Wonk. I was kindly invited to write this piece and post it there by Michael Krepon)

 

I’m grateful to Michael Krepon for this invitation to contribute to Arms Control Wonk. I have long respected Michael’s work here.

In this piece, I’d like to offer a response of sorts to Justin Anderson’s fine recent piece here at ACW, though I don’t mean it to target his piece alone, but rather the implications of some of the arguments that he and others have made concerning the legality of the use of nuclear weapons.

Gro Nystuen and Kjølv Egeland recently published an excellent piece in Arms Control Today providing a concise yet thorough review of jus ad bellum and jus in bello principles of international law relevant to the possession and use of nuclear weapons. These are principles of law related to the international use of force by states, and to the conduct of forces during armed conflict.

I recommend Nystuen and Egeland’s piece to readers, and I agree with their legal assessment that there does indeed remain a “legal gap,” and not just a compliance gap, identifiable as the absence in general customary law of a complete prohibition on the use and possession of nuclear weapons, as distinguishable from general customary rules that completely prohibit the use and possession of chemical and biological weapons. It is to this legal gap that the currently trending “Humanitarian Pledge,” and the related “Humanitarian Impact of Nuclear Weapons” multinational movement are addressed.

In his piece, Justin Anderson takes issue with one statement in a UN General Assembly resolution that is related to this movement. Essentially, his argument is in agreement with Nystuen and Egeland’s conclusion that there are at least conceivable uses of nuclear weapons that would not manifestly violate the principles of jus ad bellum or jus in bello. This indeed was the realization that prevented the International Court of Justice from being able to decide, in its 1996 advisory opinion, that the use or threat of nuclear weapons was in all cases unlawful. Anderson provides a hypothetical case in which, he contends, the use of nuclear weapons would be lawful:

Should the United States or an ally, for example, face an imminent nuclear attack, the U.S. military might advise the president that preventing the attack would require a rapid strike, launched at a distance, using munitions that would completely disable or destroy – rather than merely degrade – the belligerent forces preparing the attack. These requirements might rule out available conventional options; in this scenario, a U.S. nuclear strike would be a legitimate response due to the military necessity of completely neutralizing the target in order to prevent a catastrophic, mass-casualty attack against the United States or an ally.

Neither I nor, I think, Nystuen and Egeland would disagree with Anderson’s assessment of this hypothetical, so long as the principles of necessity and proportionality in jus ad bellum, and the principles of discrimination and proportionality in jus in bello, were in fact observed in the resulting nuclear strike.

However, while not disagreeing with the idea that there exist theoretical possibilities for the lawful use of nuclear weapons, I do think one has to bear in mind the extremely narrow sets of circumstances where such lawful uses could take place. Take Anderson’s hypothetical above. Yes, this could happen. The chances of its happening are quite remote, however. And what of the other often mentioned hypothetical cases for the lawful use of nuclear weapons, in which all of the principles of jus ad bellum and jus in bello would be satisfied, and in which conventional weapons might under the prevailing circumstances be ineffective – e.g., the enemy submarine out at sea, or the hard and deeply buried enemy bunker in the middle of the desert? Again, while similarly theoretically possible, these scenarios are also similarly unlikely to present themselves in the course of reasonably foreseeable armed conflicts.

The concern that arises is in trying to harmonize the theoretical usefulness of nuclear weapons in these very circumscribed and unlikely cases, with the existing stockpiles of nuclear weapons maintained by nuclear weapon states, and argued by them to be justified on the basis of these potential uses. The disparity is of course most acutely discernible in the cases of the United States and Russia, which each possess over 7,000 nuclear weapons, by far most of which are equipped to deliver strikes of a destructive power that could only conceivably be legally justifiable in the extremely unlikely case that Justin Anderson has described.

Is it reasonable, therefore, to argue that the United States needs 7,000 nuclear weapons, by far most of which could only legally be used in one highly unlikely situation – that of an imminent nuclear weapons launch by another state? This is to say nothing of justifying the cost of maintaining and upgrading these weapons, as Joe Cirincione often usefully reminds us.

One can’t shake the suspicion that when military and other national-security types talk about these narrow hypotheticals in order to defeat arguments that the use of nuclear weapons is always unlawful – and thereby also provide at least political justification for the possession of nuclear weapons – they aren’t really thinking that these are the only occasions when nuclear weapons use might be desirable. Rather, these are just the only uses they want to talk about. And that when push comes to shove, if allowed to maintain and upgrade such excessive nuclear arsenals, and create new platforms for their delivery – including cruise missiles, for example – considerably more situations than these might start to look like nails to a man holding a hammer – a shit-ton of hammers, in fact.

If nuclear weapon states were genuine in their representations that they need their nuclear weapons only for cases where international law would be satisfied by their use, and bearing in mind the cost of maintaining nuclear weapons stockpiles of the size maintained by the U.S. and Russia, surely we would be looking at an empirical reality of nuclear weapons possession much more in line with the “low numbers” that James Acton has compellingly written about.

The fact that we are not faced with a low-numbers reality appears, therefore, to belie arguments by nuclear weapon states that they intend to abide by existing international law in their planned, or at least conceived-of, uses of nuclear weapons.

So while it’s true that current international law does not provide for a general prohibition on the possession and use of nuclear weapons, it does contain obligations for states that significantly limit their options. I’ve written about the disarmament obligation in the NPT, and current nuclear weapon state noncompliance with it, at length elsewhere. These disarmament obligations are currently being pressed, if incompetently, by the Marshall Islands against nuclear weapon states at the International Court of Justice.

With regard to the use of nuclear weapons, we fortunately have not witnessed their use in armed conflict since 1945. So no state could be said to currently be in violation of the rules of jus ad bellum or jus in bello because of such use. However, while legal gaps remain in international law that could conceivably allow for the lawful use of nuclear weapons, the limited scope and likelihood of occurrence of circumstances in which such use would be lawful, when compared to the size and cost of efforts to maintain nuclear weapon state nuclear arsenals, makes nuclear weapon state arguments concerning their intention to abide by those obligations in the future ring a bit hollow.

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Crowd control with chemical agents: Fundamental questions raised

Book review

Michael Crowley, Chemical Control: Regulation of Incapacitating Chemical Agent Weapons, Riot Control Agents and their Means of Delivery (Palgrave Macmillan: Basingstoke, 2015), 378p.

Crowd control-sAnybody who has attended one of Michael Crowley’s annual presentations at the Organisation for the Prohibition of Chemical Weapons (OPCW) on the challenges posed by riot control and incapacitating agents for the future of the Chemical Weapons Convention (CWC) knows his passion for the subject matter. And his overwhelming knowledge about the latest developments in science, technology, industry and government policies. These characteristics also typify his book on the topic, Chemical Control, published late last year.

The book can be read on three levels:

  • as an almost encyclopaedic presentation of facts,
  • as an in-depth analysis of the regulatory regimes pertaining to chemical crowd control agents, which leads to concrete policy recommendations, and
  • as a treatise on the analytical framework that has guided the research and the book structure.

Each level has merit in its own right. The third one, however, lifts this book above many other monographs on weaponry. Not just because of the ways in which it has informed Crowley’s research and analysis, but because it opens windows to fundamental debates on the purpose of disarmament and arms control today and tomorrow. He was right to resist calling his analytical framework a theory, but it nevertheless contains elements of theory. He formulates certain assumptions, but the book’s primary goals unfortunately do not give him the space to discuss them in depth. Because Crowley fundamentally questions some traditional understandings of the purpose of disarmament and arms control, he lays down an intellectual challenge that disarmament theorists or international lawyers cannot ignore.

A rich data source

The first level is that of the researcher’s data paradise. The monograph offers highly technical and detailed information on the nature of riot control and incapacitating agents and their delivery systems, the research and development behind them, where they are being manufactured and how they are traded, and most importantly for the other levels on which the book can be read, where and how they are being used.

Chemical warfare has its fair share of horror stories. About the impact of toxic chemicals on the body—from the painful and slow-healing blistering of the skin by mustard agents to the uncontrollable convulsions caused by exposure to sarin or other nerve agents. About the human experiments conducted not just in the Japanese prisoner of war camps in China in the Second World War or the dungeons of the darkest totalitarian regimes, but also in the bastions of Western democracy. Until today veterans in the UK and the USA, for example, are fighting to have their contribution to the national defence effort officially recognised and receive adequate compensation and health care—if they are still alive.

However, it is quite a different present-day horror story to read that quite a few states use incapacitants and riot control agents (such as tear gas)—toxic chemicals that some try to sell to public opinion as so-called non-lethal or humane weapons—to torture prisoners or regime opponents. Page after page, table after table Crowley details national practices of certain countries. They beggar belief were it not for the fact that source references make up two-thirds of the pages with tables.

Crowley methodically presents the different types of agent together with their characteristics and consequences after exposure, the country armament programmes and practices, and incidents. He never meant those pages to be read in a systematic way; they are detailed reference materials for researchers worldwide. In that sense he comes as close as possible to an encyclopaedic treatment of the subject matter. Future reports by him and other researchers will have to update the data sets.

If assimilation of this wealth of data might appear daunting, then section introductions and conclusions pull the main strands of his empirical analysis neatly together.

Considerations for policy shapers and makers

The second level is that of policy advice. I must admit that when I first saw the table of contents and noticed that the final chapter addressed conclusions and recommendations I had concerns about the substance of the book. It is one thing to undertake solid empirical research; it is quite a different thing to lay out arguments (and thereby present data selectively) in support of policy recommendations. Too often such treatises display superior argumentative logic, all the while lacking foundation in factual reality. Or they may sink to the level of wholly speculative ‘may and might’ analyses spinning hypothetical, often worst-case scenarios whose projected consequences then inform policy recommendations.

To my relief Crowley avoids this trap because a solid analytical framework structures his analysis (see the third level below). Thus after having laid out the technical aspects and national programmes of crowd control agents, he moves to the regulatory regimes. Again he proceeds systematically. In what amounts to over half of the book, he devotes a chapter each to arms control and disarmament law, international humanitarian law, human rights law, international criminal law, technology transfer control regimes, and UN drug control conventions. For each of the treaties, regulations, policy declarations, or informal arrangements (such as the Australia Group or Wassenaar Arrangement) Crowley presents the reader with a summary of the objectives and tools, an analysis of their implementation, and options for amelioration.

In the penultimate chapter he examines how civil society can contribute to the strengthening and implementation of the respective regimes. It comprises a comprehensive overview of ideas that have been explored in the fields of chemical and biological weapon control over the past decade and a half, as well as various initiatives whose primary concern have been the humanitarian and human rights consequences of the application of crowd control agents. In the process the author comments on such activities and suggests further options and improvements.

Crowley’s recommendations are rooted in this detailed analysis. He identifies areas of action where governments (and by extension, intergovernmental organisations) have to assume their responsibilities with regard to the strengthening and implementation of the international rules. He also considers how civil society constituencies can contribute to the strengthening of existing tools (e.g., through the development of ethical and professional codes of conduct, educational initiatives, etc.) or develop independent initiatives to track developments (e.g., open source monitoring of the use of crowd control agents or the political and technological imperatives for their further development and international commercialisation) with a view of holding policy makers accountable.

The final chapter thus comprises succinct summaries of the issues treated in the preceding chapters and related policy recommendations.

Analytical framework

As already indicated in the introduction, to me the best aspect of the book is the analytical framework. Crowley calls it ‘holistic arms control’ (HAC). It concentrates on existing arms control and disarmament measures, but seeks to expand on the numbers and types of regulatory measures and broaden the range of possible stakeholders.

The ambition is not small: he must weave a net whose meshes are sufficiently wide to catch all relevant data, while small enough to filter out irrelevant elements. Moreover, his construct is multidimensional, capturing the technologies together with national and human security concerns of inappropriate use, all relevant international legal regimes and other types of regulation together with the relative strengths and weaknesses, and possible strategies to reinforce all barriers against misuse of crowd control chemicals.

He deconstructs this ambition in the opening chapter and in the process outlines a step by step methodology that will form the backbone for the whole book. Cowley’s rigid adherence to the model contributes significantly to the readability of his analysis: throughout the reader remains aware of the stage of analysis and when particular questions are likely to be addressed. At the same time, he leaves the reader with a strong sense of comprehensiveness by bringing in many elements that one might not immediately consider when touching upon the subject of incapacitating and riot control agents. His discussion of the 1971 UN Convention on Psychotropic Substances is but one example.

A theoretical knot

However, the HAC framework is not merely analytical, it is also aspirational. It carries elements of theory formation that offer the perspective of substantive debates on the purpose of disarmament in fast changing times. As the author states (p.4):

Recognizing that reliance upon a single disarmament or arms control agreement alone would not guarantee success, scholars have explored a number of concepts, seeking to broaden the range of possible regulatory mechanisms.

His analysis is therefore also aspirational:

Although the proposed HAC analytical framework concentrates upon existing arms control and disarmament measures, it attempts to widen the range of applicable mechanisms for regulation, and also the nature of the actors involved in such regulatory measures.

Consequently, HAC can be thought of as a framework for analysis to aid the development of a comprehensive, layered and flexible approach to arms control […]

Left unsaid is the central question: what is the core purpose of disarmament (as embedded in the Biological and Toxin Weapons Convention (BTWC) and the CWC, two key pillars of the regime against the misuse of incapacitating or riot control agents)? Furthermore, how do treaty regimes evolve in the light of technological, political and social changes over the years since their adoption and entry into force?

Humanitarian considerations have over the past two decades taken up a prominent place in the disarmament and arms control discourses. This means that today a different reference framework for judging effectiveness of a convention exists than the one originally intended: the focus of the public debate has shifted from the weapon technology (which must be eliminated) to the consequences of their use under a variety of circumstances on individuals and communities, which in turn has amplified calls to hold those responsible for violations accountable under national and international criminal law. That conflict of purpose is on clear display in the Syrian civil war: many people do not understand why the international community can invest resources in eliminating Syria’s chemical warfare capacity, but does not want to intervene to stop the slaughter of civilians.

The issue really becomes interesting when two humanitarian considerations intersect at a given decision-making moment in a disarmament setting, and a choice has to be made. Crowley points to such a moment during the 3rd CWC Review Conference in April 2013 (pp. 130–31), however without realising the underlying conflict (of conscience) that led to the item of incapacitating agents being dropped form the final document. The debate occurred when the number of reported chemical weapon (CW) incidents in the Syrian civil war was rising fast, and only a few weeks after the UN Secretary-General established a mission to investigate allegations of CW use. Including a condemnation of the escalating chemical warfare crisis proved highly controversial. Compromise was possible on severely weakened language only, which was totally unacceptable to the Western Group and Other States (WEOG). The final document was in the balance. Given that Poland was chairing the review conference, failure was not an option for the European Union members.

One WEOG ambassador was unable to get updated guidance on compromise language on the questions of incapacitants and Syria from his capital, and therefore had to decide under his personal responsibility (all the while bearing in mind that the successful outcome of the review conference hung in the balance). He opted to go with the compromise language on Syria and (in consultation with the original sponsor, Switzerland) drop references to incapacitants, a key consideration being that the issue could be taken up at a later date. Does such a decision make the CWC less effective? The consensus language in the final document would ultimately form a not insignificant foundation for subsequent action by the OPCW following the sarin attacks in the district of Ghouta less than four months later, and Syria’s accession to the CWC and subsequent disarmament. Outcomes at meetings can result from complex decision processes when different interests conflict with each other and priorities (often in function of developments at the time) need to be established.

So, I raise the question whether the global community is best served by finding ways to ameliorate core instruments or by broadening the range of tools in order to capture a particular issue of interest? I have no immediate answer because, as the book describes, science and technology and their application in various circumstances may evolve much faster than the international community can regulate them or update existing treaty regimes. Nevertheless, I do have the concern that multiplication of treaties and other regulatory instruments lead to different lists of states participating in each one of them and different levels of compliance and enforceability. That could lead to a cacophony of expectations based on different requirements and interpretations of obligations.

This final reflection is not a criticism of Chemical Control. The question touches upon theories of regime formation and international law and goes beyond the purpose of Michael Crowley’s book. However, it is a matter I definitely wish to engage him on. I can only commend him for offering a solid framework for structuring that particular debate on the future of disarmament and arms control and identifying the fundamental assumptions underlying both concepts.

 

[Cross-posted from The Trench]


Iran’s Ballistic Missile Launches Do Not Violate UN Security Council Resolutions

Iran has on several occasions lately conducted ballistic missile tests. These are simply the latest in Iran’s longstanding efforts in development of its missile programs.  I’ve noticed in media reports that both US officials and nonproliferation wonks have been saying that these missile tests violate UN Security Council resolutions.  You can see such quotes in these articles – here and here.  However this is incorrect.

There are several issues here. First is the Iranian standard rebuttal that none of their missiles are designed to carry nuclear weapons, and that therefore these tests do not run afoul of the precise language in relevant UNSCR’s.  This is a technical argument that I’d really rather not wade into because it’s outside my expertise – i.e. when is a missile “designed” to carry a nuclear weapon.

But from a legal perspective, the assertion that Iran’s ballistic missile tests in the months since JCPOA Implementation Day (January 16, 2016) violate UN Security Council resolutions is incorrect because, as of Implementation Day, all UNSCR’s adopted prior to that date regarding Iran are terminated except for Resolution 2231.  And the language that Resolution 2231 employs in addressing Iran’s ballistic missile activity is legally nonbinding language.  Therefore there is no legal obligation on Iran touching its ballistic missile activity contained in Resolution 2231, and there can thus be no violation of a legal obligation that doesn’t exist.  I’ll paste here a section from my forthcoming book explaining this point (exciting that I can do this now!):

In its Resolution 1929, adopted on June 9, 2010, the Security Council imposed a conventional arms embargo on Iran. It further addressed Iran’s ballistic missile program thus:

[The Security Council] Decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology, and that States shall take all necessary measures to prevent the transfer of technology or technical assistance to Iran related to such activities.

Iran’s diplomats argued consistently that the Security Council’s arms embargo and proscriptions on Iran’s ballistic missile programs were unwarranted, and when negotiations began on the JCPOA they argued vigorously that they would not include their missile program on the agenda for negotiation along with their nuclear program. There is therefore nothing in the text of the JCPOA itself on the subject of Iran’s conventional weapons and missile programs. However, in Security Council Resolution 2231, the Council did make some changes to its treatment of these issues.

Annex B of Resolution 2231 provides for the temporary continuation of the international conventional arms embargo on Iran, inclusive of an exception for transfers approved by the Security Council. However, it further provides that the embargo will cease on the date five years from Adoption Day under the JCPOA. This date will be October 18, 2020.
With regard to Iran’s ballistic missile activities, Security Council Resolution 1929’s circumscription of course terminated, along with the Security Council’s other previous resolutions, on Implementation Day, January 16th, 2016. In its place, Security Council Resolution 2231 in Annex B provides the following text:

Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology, until the date eight years after the JCPOA Adoption Day or until the date on which the IAEA submits a report confirming the Broader Conclusion, whichever is earlier.

The substitution of the leading phrase “calls upon” in this text in Resolution 2231 has legal significance, as I explained in Chapter 6. The change to this invitational yet legally nonbinding phrase in Resolution 2231 means that, as of January 16, 2016, Iran is no longer under a legal prohibition regarding its ballistic missile activity from the Security Council. The remaining hortatory expression in Resolution 2231 by its terms expires on October 18, 2023.

So, following JCPOA Implementation Day, Iran’s ballistic missile tests cannot accurately be said to violate UN Security Council resolutions.  The most that could be said about them is that they are not in harmony with the UN Security Council’s legally nonbinding exhortation in Resolution 2231.  This is not just semantic. The termination of Resolution 1929 on Implementation Day, and its supplantation with Resolution 2231, had many meaningful legal effects. This is one of them.

 


The Marshall Islands v. The U.K., Preliminary Memorials

I’ve now had a chance to review the Marshall Islands’ (RMI) memorial in its ICJ suit against the UK, and the UK’s preliminary objections memorial. Again, you can find these on the ICJ’s website.  The juxtaposition of the two memorials is quite instructive.

The RMI’s memorial engages in page upon page of very dramatic and sweeping narrative about the general dangers posed by nuclear weapons.  When it finally gets around to talking about the actual facts and law relevant to its case against the UK, the memorial is very weirdly and unclearly organized.  The recitation of facts regarding the UK’s history of diplomatic engagement, or lack thereof, with efforts of nuclear disarmament comes first.  Then the memorial switches to talking about why there is in fact a dispute in this case. This is followed by a long section addressing the negotiating history of the NPT and its object and purpose.  Only at this point does the memorial actually address in a focused way Article VI of the NPT, which is the entire substantive legal basis of the RMI’s case.

Once the memorial does get around to analyzing Article VI, the legal discussion is decent, and brings out the main points of necessary interpretation.  But having already discussed the facts and negotiating history at length in previous sections, the legal analysis of Article VI is not then followed by a clearly structured application of the law to the facts of the case, leaving the reader confused at the hodgepodge organization of the whole of the memorial.

Basic principles of professional legal writing and treaty interpretation would have recommended a much more clearly organized presentation, beginning with a rigorous interpretation and exposition of the law in Article VI, read in light of the provision’s context and the treaty’s object and purpose.  Only after this exposition should a clearly structured application of law to facts be presented, showing how the respondent has failed to uphold its legal obligations, correctly interpreted.

So yes, what I’m saying is that the RMI’s memorial is shit legal writing.

Substantively, the RMI’s memorial also makes some completely unnecessary and confusing arguments about the erga omnes character of the obligations in NPT Article VI, and about the customary law nature of those obligations – neither of which arguments are at all necessary to make in the context of a respondent state which is without question a party to the NPT.

Turning then to the UK’s preliminary objections memorial, basically this memorial should serve as an instructive foil to the RMI’s legal team, helping them to see what a memorial submitted to the ICJ should look like.  The UK’s memorial is well written and well organized.  It focuses on the relevant legal questions the court needs to answer at this stage in the proceedings, and presents its legal arguments concisely and clearly, applying well-researched interpretations of law to facts.

I have to say also that substantively, I found the UK’s procedural arguments overall to be highly persuasive. This is particularly the case with regard to the UK’s arguments relative to the parties’ optional clause declarations.  I can very easily see the court agreeing with these bases for dismissing the action.

I would take issue, though, with a couple of the UK’s substantive arguments.  The first is the argument that the court cannot proceed jurisdictionally with this case against the UK alone as respondent, because the court’s considerations will necessarily implicate the legal interests of other states.  I think the court would be perfectly capable in the merits phase of assessing the UK’s individual responsibility for its individual action or inaction in complying with its own individual obligation under NPT Article VI.  The fact that Article VI imposes shared obligations on states does not produce a mutual exclusivity with its imposition in parallel of individual obligations on states.  As I argued in my 2011 book, Article VI should be read as imposing obligations of effort upon states individually to pursue negotiations, and not as imposing only shared obligations of negotiation and result.

I also disagree with the UK’s argument that this is a case in which the court should withhold an assertion of jurisdiction because it would not be in a position to “render a judgment that is capable of effective application.”   The NPT is ongoing in its application as a treaty between the parties to the dispute.  The court could, at least in principle, give a declaratory judgment to the effect that the UK is in continuing breach of the NPT.  It could also in principle order the UK to take individual efforts that would satisfy its individual obligations under NPT Article VI.


Marshall Islands ICJ Cases Get Underway and Bear Out My Concerns

This week the oral arguments of the parties to the three remaining cases brought by the Marshall Islands against nuclear weapons possessing states in the International Court of Justice have finally gotten underway, and with them we now have a chance to also view the written submissions of the parties to this point.

Just to review, the Marshall Islands (RMI) brought suits in the ICJ against all nine nuclear weapons possessing states. However, only the cases against the United Kingdom, India, and Pakistan remain, because those are the only states among the respondent group that have consented to the compulsory jurisdiction of the ICJ.  So to be clear, the cases against the U.S, Russia, France, China, Israel and North Korea, have already failed, and indeed never had a chance of succeeding based upon well-known jurisdictional limitations.

Readers will recall that I’ve discussed these cases before and expressed my concern about how they were being handled by the RMI’s legal team.  Unfortunately, my concerns are being borne out through the pleadings that the RMI has made thus far.

Taking a look at the RMI’s application initiating proceedings against India, it should first be recalled that India is of course not a party to the NPT. In order for the ICJ to have jurisdiction, therefore, and certainly in order to prevail in the case, the RMI must show that the obligation in Article VI of the NPT has achieved customary international law status, in independent parallel to its existence as a treaty rule.

Readers may recall that Marco Roscini and I had a stimulating (at least to me) debate on this very subject here at ACL a couple of years ago.  See here, here, here, and here.  Now, compare this discussion to the RMI’s argument in pgs. 18-20 of their application, that NPT Article VI has achieved CIL status.  The RMI here presents what is in my view an unforgivably superficial set of sources on which to base their argument on this subject – which again is absolutely vital to both their jurisdictional and merits assertions against India.

Basically what the RMI does is lean heavily on the ICJ’s 1996 advisory opinion, and particularly on one paragraph of the holding of that case, 105(2)(F), where the court states:

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

This is obviously a partial quotation of the language in NPT Article VI. But the RMI’s lawyers say that, because the court didn’t explicitly restrict this statement to apply only to states parties to the NPT, therefore the court must have been asserting that this obligation has also become enshrined in customary international law.

That is pretty thin gruel.

The ICJ is perfectly capable of saying when it thinks a principle has achieved the status of customary international law, and it does not do so here.  And there’s no other wording in the rest of the 1996 advisory opinion persuasively supporting the RMI’s interpretation of this one paragraph of the court’s judgement.

The RMI’s application then talks briefly about General Assembly and Security Council mentions of the NPT Article VI language, but never really gives a solid legal analysis demonstrating that there has been sufficient state practice and opinio juris expressed by states to support the conclusion that the NPT Article VI obligation has passed into parallel customary international law, binding upon India.

Recall that in my discussions with Marco on this subject I actually took a position which agrees in conclusion with what the RMI is arguing here.  So my problem is not with their conclusion, but rather with the weak arguments that they have mustered in support of it.  Honestly, I find this superficiality unprofessional.  It reminds me of the kind of analysis I see in student papers, not in arguments before the ICJ on which the entire case of their client depends.  A proper argument would have included a much more serious discussion of the manifestations of state practice and opinio juris that support the RMI’s argument, along with much more rigorous and comprehensive legal arguments, inter alia interrogating and rebutting the sorts of very valid concerns that Marco expressed in his discussion of the subject, including specially affected states.

I guess all I can say is that if the court somehow does allow the RMI’s case to go forward on the basis of a determination that NPT Article VI has achieved customary law status, and is therefore binding on India, it won’t be because of good lawyering on the part of the RMI’s legal team.

The oral arguments against the U.K. are scheduled for today and the RMI’s memorial, along with the UK’s preliminary objection memorial, have just been posted on the court’s webpage.  We’ll see if the RMI can do any better against an actual NPT party.


My Iran Book Finally Done

Sorry for the radio silence from me over the past couple of months. I’ve been working hard to finish my Iran book, which I’m happy to report is now done and is in production with OUP. This is a very big deal for me, as I’ve been working on the manuscript for around three years now. I had been working on it for about two and a half years before the JCPOA was announced last summer, and had to pause for six months to await the deal’s implementation before writing the final chapter on it.

But it appears that the wait will soon be over. I’m being told it will be published sometime around June, and in a less expensive binding than my other books. I’m very pleased about that. I would really like this book to get a wide circulation and be read not just by academics and by students, but by government and international organizations officials as well.

Much more about the book to come in the next few months.


Nuclear Terrorism – book published

Nuclear Terrorism: Countering the Threat

Edited by Brecht Volders and Tom Sauer

Routledge, 262 pages

About the Book

This volume aims to improve understanding of nuclear security and the prevention of nuclear terrorism.nuclear terrorism

Nuclear terrorism is perceived as one of the most immediate and extreme threats to global security today. While the international community has made important progress in securing fissile material, there are still important steps to be made with nearly 2,000 metric tons of weapons-usable nuclear material spread around the globe. The volume addresses this complex phenomenon through an interdisciplinary approach: legal, criminal, technical, diplomatic, cultural, economic, and political. Despite this cross-disciplinary approach, however, the chapters are all linked by the overarching aim of enhancing knowledge of nuclear security and the prevention of nuclear terrorism. The volume aims to do this by investigating the different types of nuclear terrorism, and subsequently discussing the potential means to prevent these malicious acts. In addition, there is a discussion of the nuclear security regime, in general, and an important examination of both its strengths and weaknesses. In summary, the book aims to extend the societal and political debate about the threat of nuclear terrorism.

This book will be of much interest to students of nuclear proliferation, nuclear governance, terrorism studies, international organizations, and security studies in general.

Table of Contents

1. Introduction, Brecht Volders and Tom Sauer

2. The nuclear threat: a two-level analytical framework to assess the likelihood of nuclear terrorism, Brecht Volders

3. Internal dynamics of a terrorist entity acquiring biological and chemical weapons, Jean Pascal Zanders

PART I: Preventing Radiological Terrorism

4. Promoting alternatives to high-risk radiological sources, Miles Pomper and Aaron Gluck

5. Time for a convention on radiological security?, Sylvain Fanielle and Piotr Andrzejewski

6. The threat of a self-sustained chain reaction device, Ivan Andryushin, Eugeny Varseev and Gennady Pshakin

PART II: Preventing Attacks on Nuclear Facilities

7. Attacking nuclear facilities: hype or genuine threat?, Gary Ackerman and James Halverson

8. Nuclear security in Belgium: evolution and prospects, Rony Dresselaers and Sylvain Fanielle

PART III: Preventing the Detonation of a Crude Nuclear Device

9. Searching for the nuclear silk road, Steve Sin and Marcus Boyd

10. Securing Pakistan’s nuclear arsenal: the threat from within, Pervez Hoodbhoy and Zia Mian

PART IV: Nuclear Security Governance and Culture

11. Nuclear security culture: from concept to practice, Igor Khripunov

12. Nuclear security commitment making: results of the summit process, Michelle Cann

13. Nuclear security diplomacy beyond summitry, Trevor Findlay

14. Conclusion, Tom Sauer and Brecht Volders