The online academic journal Questions of International Law has just published a symposium on my book Cyber Operations and the Use of Force in International Law (which is now available also in paperback). Two excellent scholars, Prof. Christian Henderson (Sussex University) and Dr. Emanuele Sommario (Scuola Superiore Sant’Anna – Pisa) discuss my analysis of the jus ad bellum and jus in bello issues arising from the use of cyber technologies. Their reviews are themselves very interesting contributions to the debate on cyber security and well worth reading.
Another excellent (and very positive!) review of my book has been written by Vincent Roobaert and has been published in the latest issue of the NATO Legal Gazette.
Our followers in London and the UK will be interested in this panel on the Iran nuclear deal that will take place at the University of Westminster in London on 17 November. As you know, on 14 July 2015 the Joint Comprehensive Plan of Action agreed by Iran, the P5+1 and the European Union was announced. Under the framework, Iran will substantially reduce its stockpiles of nuclear material, limit its future production of nuclear materials, and accept the IAEA’s Additional Protocol. In return, the P5+1 and the UN Security Council will lift all nuclear-related economic sanctions against Iran. But what legal obligations does the deal contain? How will we ensure that Iran is complying with them? Does the deal strengthen international peace and security or is it rather a threat to it? And why have other nations not faced as much scrutiny as Iran? The panel discussion will address these and other important questions from a legal, political and diplomatic perspective.
Speakers include, in addition to our own Dan Joyner, Sir Richard Dalton (British Ambassador to Iran 2002-2006; Associate Fellow, Middle East and North Africa Programme, Chatham House; President, British Iranian Chamber of Commerce) and Ambassador Peter Jenkins, CMG (Partner, the Ambassador Partnership).
To register, please click here.
An ASIL Insight I wrote on the case brought by Marshall Islands against the nuclear weapons states before the International Court of Justice has just been published online (to read it, click here). Comments are welcome.
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.
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.
After thinking carefully about their comments, I would like to offer some further thoughts.
1) I think that there is no obstacle in principle for a single provision within a treaty to be taken in isolation to establish whether it has become customary international law. The severability of treaty provisions finds support in the Vienna Convention on the Law of Treaties and has been upheld, for instance, in the ICJ Nicaragua Judgment, where the Court examined whether Articles 2(4) and 51 of the Charter reflected customary international law. We could even say that we should sometimes look at whether individual paragraphs within a provision are customary: again, in the Nicaragua case, the ICJ concluded that only the first sentence of Article 51 was a reflection of customary international law but not the second, ie the duty to report the armed reaction in self-defence to the Security Council. True, Article VI is linked to the other pillars of the NPT and is part of that Grand Bargain. But we shouldn’t forget that customary international law has a life of its own, independent from the treaty from which it may have originated: therefore, nothing prevents that only certain provisions of the NPT may have become customary but not others, even though, in the treaty where they were originally contained, they were intended as a package deal.
2) Like Jean-Pascal, I am not sure that the Chemical Weapons Convention is an appropriate analogy with the NPT. Indeed, as Jean-Pascal says, the difference between the NPT and the CWC is that the latter doesn’t distinguish between haves and have-nots. But an even more important difference is that virtually all states parties (and non-parties as well) agree that the use and possession of chemical weapons is unlawful: those states that are suspected of possessing or using them don’t count as contrary practice, as they don’t argue that such situations are lawful, rather they normally deny possession or use (Syria docet) or argue that the chemicals used don’t fall within the definition of the prohibited weapons, therefore confirming the prohibitory rule.
3) Dan is of course correct to say that Article VI formally addresses all NPT states parties. I still think, however, that this provision ‘specially’ affects only those states that possess nuclear weapons, as their position is necessarily different from that of non-nuclear weapon states. The fact that Article VI was what the NNWS asked to the NWS in return for their giving up the right to possess nuclear weapons (as Dan rightly states) demonstrates that this provision was specifically aimed at the NWS. In my view, it’s also impossible for the NNWS to engage in the relevant conduct, ie to give up weapons they don’t possess: they could engage if they acquired nuclear weapons, but that would confirm my argument, ie that the provision only specially affects states once they possess nuclear weapons.
4) I agree with Jean-Pascal that the customary nature of a provision or of a whole treaty doesn’t necessarily depend on how many states have ratified that treaty. Rather, it depends on the attitude of the states not parties in relation to that treaty. I also agree with Sergei Batsanov when he says in his comment to my initial post that we also have to take into account the practice of the several NNWS that accept nuclear weapons on their territory and of those that benefit of the nuclear deterrence umbrella. This practice by NNWS seems to imply an opinio that is difficult to reconcile with the customary nature of Article VI, ie it’s based on the acceptance that certain states may possess nuclear weapons.
To conclude. While I would in principle agree that Article VI, as a treaty provision, may have been breached by the NWS (although doubts about the normativity of this provision remain), I am still not sure that, at this stage, it reflects customary international law. The empirical study wisely advocated by Dan would have to provide evidence of consistent practice and opinio juris in that sense by a sufficiently representative majority of states, including the majority of the specially affected states (as per the North Sea Continental Shelf Judgment).
Customary international law plays an important role in the applications recently submitted by the Marshall Islands to the International Court of Justice (ICJ), particularly in those against the nuclear weapon states not parties to the Treaty on the Non-proliferation of Nuclear Weapons (NPT). Has Article VI of this treaty become binding on all states even beyond the NPT, as argued by the applicant?
Customary international law, which is generally non-written, is created by the convergence of two elements: practice by a sufficiently representative number of states and other subjects of international law (for instance, international organizations) and ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’ (to use the ICJ’s words in, among others, the North Sea Continental Shelf Judgment) or at least by social, political or economic exigencies (opinio juris ac necessitatis). The fact that a treaty has been almost universally ratified is not, on its own, sufficient evidence of its customary status. To reach this conclusion, one has to look at the practice and opinio juris of the states not parties to the treaty: my feeling is that Israel, India, Pakistan and North Korea are going exactly in the opposite direction. Furthermore, even certain states parties (i.e., the five nuclear weapon states) have conducted themselves and expressed views that are difficult to reconcile with the alleged customary nature of Article VI.
It is true that universality of practice and opinio is not necessary for the formation of customary international law. However, it is not because there are a few states against in spite of a significant majority in favour that a custom corresponding to Article VI cannot be considered formed, but because the contrary practice and opinio come from those states that have nuclear weapons. To be clear, I am not referring to the doctrine of the persistent objector: I am not arguing that a custom in force is not applicable to certain states. My point is rather that a customary norm cannot sediment unless the practice and opinio juris of the specially interested states support this. The International Law Association’s 2000 Report on the formation of customary international law confirms that the extensive character of state practice is more a qualitative than a quantitative criterion: ‘if all major interests (“specially affected States”) are represented, it is not essential for a majority of States to have participated (still less a great majority, or all of them)’ (p. 26). Specially affected states are those that had the opportunity to engage in the relevant practice. It is difficult to see, then, how Article VI can become customary international law without considering the practice and opinio juris of those states that possess nuclear weapons and to which the provision is primarily addressed. The fact that Article VI does not reflect customary international law is confirmed in the ICJ’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, where the Court states that the obligation ‘formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons’.
It should be incidentally noted that, if Article VI is only a treaty obligation and not also a customary provision, it would be at best an obligation erga omnes partes, and not erga omnes as too hastily argued by the applicant. In other words, it is an obligation assumed towards the group of the states parties collectively considered, but not towards the international community as a whole.
My book on Cyber Operations and the Use of Force in International Law has just been published by Oxford University Press. If you are interested in ordering a copy, please click here, or, if you prefer the US OUP website, here.
Here is the abstract:
The internet has changed the rules of many industries, and war is no exception. But can a computer virus be classed as an act of war? Does a Denial of Service attack count as an armed attack? And does a state have a right to self-defence when attacked in cyberspace? With the range and sophistication of cyber attacks against states showing a dramatic increase in recent times, this book investigates the traditional concepts of ‘use of force’, ‘armed attack’, and ‘armed conflict’ and asks whether existing laws created for analogue technologies can be applied to new digital developments.
The book provides a comprehensive analysis of primary documents and surrounding literature to establish whether and how existing rules on the use of force in international law apply to cyber operations. In particular, it assesses the rules of the jus ad bellum, the jus in bello, and the law of neutrality (whether based on treaty or custom), and analyses why each rule applies or does not apply in the context of cyber operations. Those rules which can be seen to apply are then discussed in relation to each specific type of cyber operation. The book addresses the key questions of whether a cyber operation amounts to a use of force and, if so, whether the victim state may exercise its right of self-defence; whether cyber operations trigger the application of international humanitarian law when they are not accompanied by traditional hostilities; what rules must be followed in the conduct of cyber hostilities; how neutrality is affected by cyber operations; and whether those conducting cyber operations are combatants, civilians, or civilians taking direct part in hostilities. The book is essential reading for everyone wanting a better understanding of how international law regulates cyber combat.
The book also contains a thought-provoking Foreword by Prof. Yoram Dinstein.
My article on ‘Cyber operations as a nuclear counterproliferation measure’ has just been published in the Advance Access section of the Journal of Conflict and Security Law. It will appear in print later in 2014.
Abstract: Focusing on recent malware that allegedly targeted Iran’s nuclear programme, the article discusses the legality of inter-state cyber operations as measures to prevent the proliferation of nuclear weapons approaching the problem from the perspective of the law of State responsibility, in particular the circumstances precluding wrongfulness. After examining the role that cyber attacks and cyber exploitation can play in preventing nuclear proliferation, the article explores whether cyber operations can be justified as countermeasures in response to a possible breach by Iran of its non-proliferation obligations. It then discusses whether counterproliferation cyber operations amounting to a use of force are submitted to a more lenient legal regime than other more traditional forms of the use of force in international relations. Finally, the article explores the legality of counterproliferation cyber operations from the perspective of Chapter VII of the UN Charter, and in particular of the resolutions adopted against Iran by the Security Council. The article concludes that the legality of counterproliferation cyber operations must be assessed in the light of the general primary and secondary rules of international law: neither the means used (cyber instead of kinetic) nor the aim pursued (the non-proliferation of nuclear weapons) justify a special legal regime.