BOSTON BOMBING & WMD

Dzhokhar Tsarnaev, one of the suspects in the Boston bombing tragedy, has been formally charged with using a weapon of mass destruction and malicious destruction of property resulting in death (under the Violent Crime Control and Law Enforcement Act of 1994)
The fact that I am from Spain makes it easy for me to understand the fears and feelings that terrorism can generate. Unfortunately I am familiar with such events: just to give one example, in 1987 the terrorist group ETA placed a powerful explosive in a supermarket in Barcelona that killed 21 people and wounded 45.
Nonetheless, what is surprising to me in the Boston case is the charge of ‘using a weapon of mass destruction’.
Certainly, the concept of “weapons of mass destruction” (WMD), although widespread, raises questions of definition. The term WMD first appears in 1948, in a document of the Commission for Conventional Armaments, referring to issues that did not belong to its jurisdiction but to the Atomic Energy Commission (another committee established by the United Nations General Assembly). Specifically, the mandate of the Atomic Energy Commission was, inter alia, the preparation of proposals to eliminate atomic weapons and “all other major weapons adaptable to mass destruction” (Res AG 1(I), 24 January 1946). The demarcation criterion was, therefore, the ‘capacity’ of certain weapons to cause a destructive effect comparable to that produced by the use of atomic weapons.
Indeed, destructive potential and indiscriminate effect are the two criteria commonly used to identify WMD. For example, the Paris Agreements of 23 October 1954 on the Accession of the FRG to the North Atlantic Treaty use the criteria of potentiality. Specifically in Annex II of Protocol III of these agreements, which gives a combined treatment to nuclear, chemical and biological weapons (prohibiting their manufacture to the FRG), only nuclear weapons are expressly defined as capable of “mass destruction, widespread damage or mass poisoning”. Regarding their indiscriminate effects, this is the approach followed by the International Committee of the Red Cross, which includes in the category of WMD all weapons that, by their nature and manner of use, cause indiscriminate effects and, consequently, do not have the ability to distinguish between military targets and civilians (XXI International Conference of the Red Cross, Istambul, 1969, Resolution XIV).
Both approaches have obvious shortcomings. Technological and weaponry development demonstrate the existence of conventional weapons that are highly destructive and, certainly, the destructive capacity of chemical and biological weapons depends on the characteristics of their delivery systems as well as on the amount and type of products used. Indiscriminate effects are also currently in question especially because of the so called “miniaturized” nuclear weapons, whose effects are supposed to be similar to some conventional weapons.
Even with these shortcomings, it seems to me to be useful to keep the name of weapon of mass destruction to encompass only nuclear, biological and chemical weapons. First, because only these weapons have mass destructive capacity and non discriminatory effects by nature. This is one of the reasons that justifies the special characteristics of the WMD international treaties. Second, because this is the usual meaning assigned to that notion: many international treaties, like Sea-Bed Treaty, BWC, CWC, Treaty of Tlatelolco, Outer Space, Treaty of Rarotonga, and Celestial Bodies use the term WMD with this understanding and definition. Indeed, and more recently, this is also the understanding of the Security Council expressed in Resolution 1540 (2004) among others. The U.S. is a party to most of these treaties, and lead Security Council action against the proliferation of WMD.
Given this international consensus, the association of the criminal behavior perpetrated in the Boston marathon with the concept of WMD, introduces a confusion that in my opinion does not contribute to the strengthening of the WMD legal regime, and I don’t see how it can help to deal with these kind of criminal actions or to prevent them in the future.

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European Union performance in the field of non-proliferation

I want to draw your attention to the latest issue of UNISCI – a Spanish journal-. This special issue (http://www.ucm.es/info/unisci/english/index.html) is devoted to the analysis and evaluation of some aspects of the EU policy in the field of non-proliferation, ten years after the adoption of the EU Strategy against WMD. Considering that sometimes the non-English publications are “out of the record”, I’ve considered that this blog gives us the opportunity to be aware of this literature.

Below I reproduce several paragraphs of the Coordinator (Clara Portela) pointing out the main contributions of the articles included (most of them in English!):

“In the opening article, Megan Dee evaluates the role of the EU in NPT negotiations. The EU has a history in this forum, having coordinated positions at NPT Review Conferences since the 1995, when it conducted a celebrated campaign in support of indefinite extension. It also appeared promising on account on its multilateral nature and vocation, very much highlighted in the ESS. However, according to Megan Dee, EU’s performance is ultimately hampered by its own lack of ambition, as well as by the other groups which fulfill the consensus-building role the EU aspires to. In other words, it has been outperformed by groups with better defined and less status-quo oriented visions.

The second article by Oliver Meier analyses an issue area that has remained conspicuously absent from current accounts of the EU’s action in this field, its policies in various arms control regimes, with refreshing and sometimes unexpected results. Oliver Meier concludes that, despite the EU’s favorable position in the export control regimes, members’ action in these informal fora remains uncoordinated.

The following article by Milagros Álvarez comparing the non-proliferation strategies of the EU and the US demonstrates that, despite the hopes instilled by Obama’s nuclear disarmament impetus, US action in the field remains conservative in several respects. Her findings are rather disappointing: Transatlantic collaboration prospers in the consolidation of informal non-proliferation tools. Her contribution also helps us contextualizing nuclear non-proliferation in the broader field of WMD: selective progress in the non-proliferation is matched by stagnation in the biological and chemical domain.

Anne Finger follows up exploring European options for the implementation of a key initiative in the field, Obama’s “Global Zero”, a highlight which has so far received less resolute support from the EU than one would expect following the adoption of the EU’s WMD strategy. In the face of “Global Zero’s” fading momentum, Anne Finger suggests ways forward for reviving and facilitating progress towards nuclear elimination in Europe.

A second set of articles examines significant issues surrounding the EU and WMD proliferation. Benjamin Kienzle looks at the EU’s policies towards Iran in an effort to explore the problems created by the multiplicity of norms promoted in EU foreign policy. He shows that in the EU’s Iran policy, non-proliferation was eventually privileged over human rights objectives. In the absence of pre-established priorities among norms, the EU faces a dilemma in its external norm promotion; namely, it might have to prioritize among competing norms, or else pursue both of them at the expense of coherence. Two subsequent contributions analyze key issues determining the non-proliferation context in which the EU operates: Belén Lara compares and assesses European reactions to the US plans to deploy a Missile Defence system, while Natividad Fernández reviews the sometimes misrepresented, or simply misunderstood, non-proliferation policies of the Russian Federation. Finally, Fernando Borredá explores the role of the EU in the field of chemical weapons by applying most the straightforward standards, i.e., by assessing the relevance of EU action to the main challenges currently faced by the chemical weapons regime.

While the picture that emerges from this compilation of articles points to a suboptimal performance, it does not necessarily augur badly for the future of the EU as a nonproliferation actor. Those articles evaluating the EU’s track record reveal a gradual improvement in EU coordination, such as in the NPT framework. Others deal with arenas where the EU has not seriously contemplated closer co-ordination, as exemplified, to all appearances, in the export control regime. And granted, some contributions discuss issue areas which European countries prefer not to address through the EU, such as Missile Defence. The benefits of the emerging literature to which the present issue draws attention is that it shows a growing interest in the policies of the EU in the field, pointing to current deficiencies and sometimes even suggesting avenues for improvement. Nonetheless, the EU is clearly “not yet there”. In order to achieve relevance in the non-proliferation domain, the EU still requires a breakthrough….”


NUCLEAR EXPORT CONTROLS – DO WE REALLY WANT TO REINFORCE THE NPT REGIME?

Nuclear export controls have traditionally confronted countries possessing nuclear goods and technology with potential importers of these items. The main lines of argument in this debate have been the contribution of such controls to the non-proliferation objective, their impact on the right to develop nuclear energy for peaceful purposes and, in this context, the compatibility of the measures agreed by the leading nuclear exporting States with the regulation of the Non-Proliferation Treaty (NPT).

The debate will be resumed at the upcoming NPT Review Conference in 2015, although documents submitted to date reveal the apparent stalemate between the State Parties as regards attempts to reach a consensus. Thus, for example, the working paper (WP) presented by the Vienna Group of Ten contains the following statements:[1]

  •  “All States should apply in their export control regimes the Understandings of the Zangger Committee (…) as well as the Guidelines developed by a group of States for their nuclear-related exports.”
  • “New supply arrangements for the transfer of source or special fissionable material or equipment or material specially designed or prepared for the processing, use or production of special fissionable material to non-nuclear-weapon States should require, as a necessary precondition, acceptance of the IAEA full-scope safeguards and an Additional Protocol based on the model INFCIRC/540 (Corrected).”
  • “… transfers of nuclear material, sensitive equipment or technology should take place only if the recipient State has in place an effective and adequate national system of nuclear security.”

By contrast, the WPs presented by the League of Arab States and the Group of Non-Aligned States Parties to the Treaty take a diametrically opposed stance. Thus, the former rejects all attempts to make the conclusion of additional protocols a necessary (rather than a voluntary) condition for those developing States wishing to acquire peaceful nuclear technologies, and maintains that every State party to the Treaty:

“should facilitate the exchange of scientific and technological materials and information in as complete a manner as possible in the context of the Treaty, so long as the State obtaining those materials or information is committed to the safeguards agreements concluded with the [International Atomic Energy] Agency”.[2]

The WP submitted by the Group of Non-Aligned States stresses that the NPT:

“does not prohibit the transfer or use of nuclear technology, equipment or material for peaceful purposes based on their sensitivity, and only stipulates that such technology, equipment and material must be subject to full-scope IAEA safeguards”.

According to the Group:

“new supply arrangements for the transfer of source or special fissionable material or equipment or material designed or prepared for the processing, use or production of special fissionable material to non-nuclear-weapon States should require, as a necessary precondition, acceptance of IAEA full-scope safeguards and internationally legally binding commitments not to acquire nuclear weapons or other nuclear explosive devices.”[3]

Regardless of other considerations, the fact remains that the implementation of nuclear export controls is a legal obligation for all States pursuant to various resolutions adopted by the Security Council.[4] The resolutions, however, allow different interpretations to be made as regards the type of goods under control and the conditions associated with the authorization of particular exports.

The Final Document published at the last NPT Review Conference, held in 2010, makes a number of recommendations, which could be understood as potential solution to these two issues. Indeed, the Conference encourages States parties to make use of multilaterally negotiated and agreed guidelines and understandings in developing their own national export controls.[5] As such, the text seems to assign to these “guidelines and understandings” the function of a regulatory framework of reference for a country’s legislative activity and, thus, to be seeking the harmonization of national laws on nuclear export controls. Moreover, as a recommendation of the NPT Review Conference it can also be seen as an attempt at strengthening the regulations embodied in that Treaty. Yet, as shall be seen, such goals are not fully met by the guidelines issued by the leading group of nuclear supplier countries, the Nuclear Suppliers Group (NSG).

Indeed, the NSG guidelines would constitute a poor instrument for achieving the harmonization of national laws and, more importantly, their general application could even weaken the non-proliferation regime designed by the NPT.

Specifically, the worldwide application of the NSG guidelines[6] would appear to have four major consequences:

1. At first sight, the main outcome would be the enlargement of the material scope of national export controls and, as such, the modification of Article III.2 of the NPT. Hence, not only would the list of nuclear sources, materials and goods subject to control be extended (when compared to the aforementioned article and the ‘development’ of that provision made by the Zangger Committee), but goods of dual-use would also be included within the scope of these controls. Moreover, the NSG guidelines on nuclear-related dual-use items do not include a closed trigger list and so would allow States to extend the qualification of dual-use to any good as deemed necessary. As such, the guidelines would have a minimal impact on the harmonization of the material scope of national export controls, allowing each country to apply the guidelines at their discretion to other items of significance in addition to those identified jointly by the NSG.

2. Notwithstanding the fact that the NSG guidelines recognize the States right to incorporate additional conditions to the agreed list, their widespread application would lead to a distinction being drawn in the type of conditions with which an import country must comply through the consolidation of a double standard of conditionality: a general standard, as required by the full-scope IAEA safeguards in the recipient State, and a specific standard, namely the requirement of an Additional Protocol for the transfer of enrichment and reprocessing facilities, equipment and technologies. The NSG guidelines allow no exceptions to this last condition. However, in the case of the full-scope safeguards this condition may, according to the guidelines, be waived in certain circumstances subject to the assessment of the exporting State. Consequently, the only significant change is related to the Additional Protocol in the case of exports of enrichment and reprocessing goods, which brings about a change in the regulation contained in Article III.2 of the NPT as such exports would become a specific subtype subject to different conditions.

3. As for the conditions that control the export of dual-use goods, the NSG guidelines simply lay down a set of rules of conduct to be adhered to by the supplier countries. The guidelines include an open list of conditions that need to be taken into account when authorizing a particular export. Within this broad margin of discretion, the fact remains that the NSG guidelines establish a precautionary principle in relation to the export of such goods. Yet, while this principle imposes on States an obligation to control, it lacks any clearly defined legal content. In fact, the NSG guidelines merely mention the type of internal rules to be adopted by States and exclude any substantive indications with which those rules must comply. In practice, this could mean that the precautionary principle serves as a rule that enables any kind of restriction to be imposed on the export of dual-use goods and as such does little to generate harmonization. At the same time, given the few references to the NPT and to the IAEA safeguards, the NSG guidelines serve as an instrument that promotes the decentralization of international control to the detriment of the international non-proliferation bodies.

4. In line with the NSG guidelines, States can refuse to grant an export authorization by virtue of the ‘non-proliferation principle’, when they cannot be satisfied that the transfers will not contribute to the proliferation of nuclear weapons or other nuclear explosive devices or their diversion to acts of nuclear terrorism, even though the importing country complies with the conditions included in the guidelines and all other conditions required by the law of the exporting State. The worldwide application of this non-proliferation principle, together with the characteristics outlined above of the precautionary principle, would have another consequence: the obligation to cooperate as set out in Article IV of the NPT would be undermined, since the margin of discretion that these principles allow States, would make it extremely difficult to demonstrate that this obligation is not being fulfilled.

In the light of the consequences described above, the recommendation adopted at the last NPT Review Conference would not appear to be conducive to a strengthening of the non-proliferation regime, nor is it useful for the harmonization of national export controls. The expansion of the types of goods and technologies subject to control does not reflect a strengthening of the powers assigned to the IAEA and, conversely, the exporting States obtain virtually complete freedom to authorize or otherwise the transfer of such goods and technologies, including anything that could qualify as dual-use materials.

All in all, the worldwide application of the NSG guidelines would broaden the gap between States with and without access to the development of nuclear energy for peaceful purposes and, consequently, would threaten the delicate balance that exists today between the three pillars on which the NPT is built: nuclear disarmament, non-proliferation and the peaceful use of nuclear energy.

Failing any unexpected developments, a general consensus at the next NPT Review Conference on the regulation of a universal export control system that might replace existing NPT rules is unlikely. However, a step forward in redirecting the debate might involve the exploration of alternative approaches to those adopted to date. One such approach might be the definition of a right to the import of nuclear goods. The instrument around which that right could be defined is the Additional Protocol to the IAEA safeguards agreements, since there is a general consensus as to its ability to ensure the absence of non-peaceful activities in the countries in which it is in force. Along a similar line, national laws governing nuclear export controls should consider that the existence of an Additional Protocol for the importing State is a sufficient condition to permit any type of nuclear export, including dual-use goods and, thus, that it is not possible to refuse to grant an export authorization under the non-proliferation or precautionary principle. The definition of this right would at least provide some substance to the duty to cooperate as laid down in article IV of the NPT.


[1] NPT/CONF.2015/PC.I/WP.7

[2] NPT/CONF.2015/PC.I/WP.15

[3] NPT/CONF.2015/PC.I/WP.24

[4] SC Resolutions 1540(2004) and 1887(2009).

[5] NPT/CONF.2010/50 (Vol. 1), First Part, Action 36.

[6] INFCIRC/254/Rev.10/Part.1: NSG guidelines for the export of nuclear material, equipment and technology, and INFCIRC/254/Rev.8/Part.2: NSG guidelines for transfers of nuclear-related dual-use equipment, material, software and related technology.