Australia is presently in discussions with India to begin exporting uranium for India’s civil nuclear programme. Australia, however, is a party to the 1986 Treaty of Rarotonga establishing a nuclear weapon-free zone (NWFZ) in the South Pacific Ocean, Article 4 of which provides that ‘[e]ach Party undertakes: not to provide source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material for peaceful purposes to any non-nuclear-weapon State unless subject to the safeguards required by Article III.l of the NPT, or any nuclear-weapon State unless subject to applicable safeguards agreements with the International Atomic Energy Agency (IAEA)’. Is India, which has not ratified the Treaty on the Non-proliferation of Nuclear Weapons (NPT) and possesses nuclear weapons, a non-nuclear weapon state (NNWS) or a nuclear weapon state (NWS) under Article 4 of the Rarotonga Treaty? If the former is the correct qualification, then Australia may be in breach of the treaty if it exports uranium to India, as India has only accepted limited IAEA safeguards (INFCIRC/66/Rev.2) on certain civilian plants, but not full-scope safeguards (i.e. applicable to all materials and facilities) under the INFCIRC/153(Corrected) model (I will leave the discussion of whether less comprehensive safeguards also meet the requirements of Article III of the NPT for another time).
Article IX(3) of the NPT defines a NWS as a state ‘which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967’. Under the NPT, therefore, India is not, and cannot be unless the treaty is amended, a NWS, as it has not manufactured or exploded a nuclear device before 1 January 1967. Unlike the NPT, however, the Rarotonga Treaty does not contain a definition of either NNWS or NWS. To solve the problem, one needs to apply the criteria for the interpretation of treaties provided in Article 31 of the 1969 Vienna Convention on the Law of Treaties (VCLT). If the expression ‘NNWS’ in Article 4 of the Rarotonga Treaty is interpreted according to its ordinary meaning, it should be concluded that India is not a NNWS, as the ordinary meaning of this expression arguably is ‘state that does not possess or control nuclear weapons’, and not ‘state that has not manufactured or exploded a nuclear device before 1 January 1967’. Article 31(3)(c) of the VCLT, however, also provides that treaties should be interpreted taking into account ‘any relevant rules of international law applicable in the relations between the parties’. I would argue that the NPT can be seen as part of the rules ‘applicable in the relations between the parties’ and that, therefore, the definition of NWS (and, consequently, NNWS) contained therein may be extended, in the absence of alternative definitions, to the Rarotonga Treaty. This conclusion is reinforced by the following considerations: 1) Article 4 of the Rarotonga Treaty and Article III(2) of the NPT employ essentially the same language; 2) the Rarotonga Treaty refers in many instances to the NPT: the Preamble, for instance, reaffirms its importance and Article 4 itself requires the states parties ‘to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system’; and 3) NWFZs are usually seen as regional means to support the global nuclear non-proliferation regimes, not as alternatives to it (see Article VII of the NPT). An additional argument in favour of interpreting ‘NNWS’ in the Rarotonga Treaty consistently with the NPT could be that the definition of NWS contained in the NPT has become customary, and as such – again, lacking alternative definitions in the treaty in question – it also applies to the Rarotonga Treaty.
Could Article 4 of the Rarotonga Treaty be interpreted as referring only to NNWS ‘parties to the NPT’? The United States has made this argument in relation to Article III(2) of the NPT in order to justify its export of nuclear technologies and materials to India under the Global Partnership between the two countries. There is nothing in the letter of either provision, however, that supports this interpretation. What is more, this interpretation is in contrast with the object and purpose of the NPT: assuming that the NPT is based on the renunciation by the NNWS to certain uses of nuclear energy (the military ones) in return for assistance by the NWS in the peaceful uses of this type of energy, an interpretation of Article III that allows a state (India) to benefit from that assistance without also accepting to renounce to the military uses of nuclear energy seems in contradiction with the ‘grand bargain’ on which the NPT is founded. The same considerations can be extended to Article 4 of the Rarotonga Treaty, which, as already noted, expressly requires the states parties ‘to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system’.
As always, I would welcome your thoughts.
Yesterday I came across this report to the European Parliament (‘An appraisal of technologies of political control’). According to the report, ‘[w]ithin Europe, all email, telephone and fax communications are routinely intercepted by the United States National Security Agency, transferring all target information from the European mainland via the strategic hub of London then by Satellite to Fort Meade in Maryland via the crucial hub at Menwith Hill in the North York Moors of the UK’ (p. 19). The date? 6 January 1998. In light of the recent disclosures, it seems that the warning contained in the report fell on deaf ears.
I would like to bring to our readers’ attention this conference on nuclear disarmament and non-proliferation that is taking place at the end of this week in Naples. I will be one of the discussants in the first session. Come if you can!
I just read President Obama’s inaugural address and I was surprised to find no reference whatsoever to disarmament and non-proliferation, which played an important role in Obama’s first four years. I also found that declaring that ‘We [the US] will defend our people and uphold our values through strength of arms’ was a bit too belligerent (but, to be fair, he mentions the rule of law too). And what ‘decade of war’ is ending? I assume the reference is to the ‘war on terror’, an unfortunate expression that is obviously hard to get rid of.
What the UN Secretary-General said at the Monterey Institute of International Studies – And what he did not sayPosted: January 21, 2013
On 18 January, UN Secretary-General Ban Ki-moon delivered a speech on the disarmament and non-proliferation agenda at the Monterey Institute of International Studies. While the Secretary-General highlighted five themes with regard to disarmament and non-proliferation (accountability, the rule of law, partnerships, the role of the UN Security Council, and education), it is what he did not say that I would like to draw your attention to.
Accountability. Ban Ki-moon stresses the special responsibility of the nuclear weapon states in contributing to nuclear disarmament and emphasises that ‘[n]uclear deterrence is not a solution to international peace and stability. It is an obstacle’. This might well be true but flies in the face of reality: the continued reliance of nuclear weapon states’ policies on nuclear deterrence. How those states can be persuaded to change their mind is something the Secretary-General does not address. He also recommends that negotiations are initiated in the Conference on Disarmament to secure legal security assurances for non-nuclear weapon states: while this would certainly be a welcome result at the universal level, it is often forgotten that those assurances are already provided in the protocols attached to the five treaties establishing nuclear weapon-free zones. What the Secretary-General could have also recommended is that the nuclear weapon states that have not done so ratify those protocols as soon as possible.
Rule of law. The Secretary-General maintains that the use of chemical weapons by the Syrian government would be ‘an outrageous crime with dire consequences’. While this is an obvious statement, it would have been interesting if the Secretary-General had expanded on the remedies should such a crime be committed: in particular, does he support the responsibility to protect doctrine to the point of allowing the unilateral use of force by states in reaction to international crimes? (see my previous post on this topic here)
Specific regional issues and the role of the Security Council. Ban Ki-moon singles out the usual suspects, i.e. Iran and North Korea, as his proliferation concerns. He admits that he is deeply concerned about Iran’s nuclear programme and stresses that Iran must comply with relevant Security Council resolutions. It is striking that there is no mention of other proliferators, i.e. India, Pakistan and Israel. True, they are not parties to the NPT and therefore have not violated it, but at the beginning of his speech the Secretary-General had emphatically stated that ‘[t]here are no right hands for wrong weapons’. On the upside, it is welcome to read that the Secretary-General believes that a conference on a zone free of weapons of mass destruction in the Middle East can still be convened in 2013 and that he supports the initiative (more information on the WMDFZ in the Middle East here and here). The Secretary-General does not, however, suggest steps to be taken in order to remove the obstacles that derailed the conference in 2012, in particular Israel’s opposition to the initiative.
Disarmament education. Ban Ki-moon rightly emphasises that funding for disarmament education, training and research is low. The Secretary-General also encourages the academia to include disarmament and non-proliferation issues in their curricula and research agendas. While the contributors to this blog cannot be blamed for not doing their part by researching and publishing on non-proliferation issues, undergraduate or postgraduate courses on non-proliferation law are still rare in universities. Consistently with existing financial resources, this is something that we academics with a non-proliferation expertise perhaps could do more on. If anyone is aware of or teaches university courses on non-proliferation law, why not drop us a line so that we can alert potentially interested students here.
On 28 September, the Iranian Foreign Affairs Minister Ali Akbar Salehi addressed the UN Security Council at the High Level Meeting on Countering Nuclear Terrorism (the text of the speech can be read here). Among other things, in the speech Salehi criticized cyber attacks against Iranian nuclear facilities and qualified them as ‘manifestation of nuclear terrorism and consequently a grave violation of the principles of UN Charter and international law’ (the emphasis is mine). This might be the first time that Iran has taken an official and explicit position with regard to the (il)legality of Stuxnet, at least in an international forum (on the ‘conspiracy of silence’ that surrounded Stuxnet, see David Fidler’s interesting article in Privacy Interests, July/August 2011).
The question however is, which UN Charter principles were allegedly breached by Stuxnet? Assuming that Salehi used the word ‘principles’ in a technical sense, the Charter’s principles are famously listed in Article 2. Principles 5, 6 and 7 are not relevant in the present case. Principle 2 merely refers to the duty to comply in good faith with the obligations arising from the Charter. On the other hand, Principle 1 reaffirms the sovereign equality of states, a corollary of which is the prohibition of intervention in internal affairs of other states. According to the International Court of Justice, the prohibition of intervention is ‘part and parcel of international law’ (Nicaragua v. United States (Merits), 1986, para. 202). The 1970 UN General Assembly’s Declaration on Friendly Relations condemns ‘armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements’, and also emphasizes that ‘[n]o State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind’ (the emphasis is mine). The language is broad enough to cover intervention by means of cyber attacks when they have a coercive purpose, i.e. when they aim at coercing the target state into doing or not doing something that the state is otherwise legally entitled to do. But if the (non-forcible) intervention is a reaction against something that the target state was not legally entitled to do, i.e. a breach of international law, then it could amount to a lawful countermeasure aimed at persuading the wrongdoing state to stop the breach and provide reparation. From this perspective, the legality of Stuxnet would therefore depend on: 1) whether Iran’s nuclear programme is an internationally wrongful act in the form of a violation of NPT obligations; 2) whether the state(s) behind Stuxnet (if any) were ‘injured’ by Iran’s breach or were otherwise entitled to adopt countermeasures in relation to it under the law of state responsibility (see Arts. 42, 48 and 54 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts); 3) whether Stuxnet amounted to a ‘use of force’ (countermeasures cannot affect the prohibition of the use of force: Art. 50 (1) of the ILC Articles); 4) whether non-proliferation law is a special regime that has its own enforcement mechanisms (see Sahib Singh’s chapter in my and Dan’s book).
The third condition leads me to discuss the other two relevant principles in Article 2 of the UN Charter that might determine the illegality of Stuxnet. Principles 3 and 4 are two sides of the same coin and affirm the obligation to settle international disputes peacefully and not to resort to armed force in international relations. Whether Stuxnet is a violation of these two principles depends on whether it can be qualified as a use of ‘armed force’. I have already addressed this issue here, so I will limit myself to refer to the points I make in that article. The recently released draft of the Tallinn Manual on Cyber Warfare (text here) argues, in Rule 11, that ‘[a] cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force’. It then suggests several non-exhaustive factors in order to determine when it is so (pp. 49-50). In the end, the Manual concludes that Stuxnet was a use of force (p. 47) and, at least according to some of the experts that drafted the Manual, even an ‘armed attack’ (p. 56). I do not think that Stuxnet reached the scale and effects threshold of an armed attack, but, as it did cause material damage of some significance, I do not see any problems with qualifying it as a use of force, for the reasons I try to explain in my article. It should also be noted that, unlike the previous case of the principle of non-intervention, the legality of Stuxnet as a use of force would not depend on whether Iran has breached the NPT: under Article 51 of the Charter, force can be used only if an armed attack ‘occurs’. Even if Iran were developing nuclear weapons, it would not have committed an armed attack until it actually uses them.
To sum up. If Stuxnet was a use of force, then the responsible state(s) breached the principles listed in Article 2 (1), (3) and (4) of the UN Charter. As countermeasures cannot consist of a violation of the prohibition of the threat and use of force, Stuxnet would be illegal even if it were established that Iran is in breach of the NPT. If however Stuxnet is not considered a use of force, it would be a breach of the principle of non-intervention, unless it amounts to a lawful countermeasure against Iran’s alleged breach of its non-proliferation obligations.
I would be interested in your thoughts on this.
I read in the press that, according to French President François Hollande, the use of chemical weapons by Syria would be ‘a legitimate justification for military intervention’. Am I missing something here? The only case where the use of WMDs (or any other weapon) would legitimate an intervention against Syria would be if Syria would be using them against the interveners, who could then invoke self-defence. Or if the Security Council adopts a resolution under Chapter VII of the UN Charter authorising a military intervention in reaction to the use of WMDs by Syria against its own population (perhaps this is the situation Hollande had in mind). After all, according to para. 139 of the 2005 World Summit Outcome Document, states are prepared to exercise their responsibility to protect populations from their own governments only ‘through the Security Council, in accordance with the Charter, including Chapter VII’, and not unilaterally.
The use of chemical weapons, and of WMDs in general, is a violation of jus in bello, and not, per se, of jus ad bellum, which does not differentiate between types of weapons. Unless, of course, one argues that Hollande’s statement, which follows similar statements by the UK and the US, is a manifestation of a new opinio juris of the international community which might eventually lead to the formation of a further exception to the prohibition of the use of force under customary international law. But, in my opinion, this conclusion seems still unjustified.
This is the first of a series of posts on the proposed zone free of weapons of mass destruction (WMD) in the Middle East. Each post will focus on specific international law issues arising from the establishment of such zone. The present one deals with the international law of the sea.
Article VII of the Treaty on the Non-proliferation of Nuclear Weapons recognizes the right ‘of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories’. UN General Assembly Resolution 3472 (XXX) B of 11 December 1975 defines a nuclear weapon-free zone (NWFZ) as ‘any zone, recognized as such by the General Assembly of the United Nations, which any group of States in the free exercise of their sovereignty, has established by virtue of a treaty or convention whereby: (a) the statute of total absence of nuclear weapons to which the zone shall be subject, including the procedure for the delimitation of the zone, is defined; (b) an international system of verification and control is established to guarantee compliance with the obligations deriving from that statute’. The two fundamental prohibitions for the states parties to a NWFZ treaty are the prohibition to possess nuclear explosive devices anywhere and the prohibition to station or allow the stationing of those devices (whoever owns them) within the zone. Five NWFZs have been established so far: in Latin America and the Caribbean (Treaty of Tlatelolco, 1967), in the South Pacific Ocean (Rarotonga Treaty, 1985), in South-East Asia (Bangkok Treaty, 1995), in Africa (Pelindaba Treaty, 1996) and in Central Asia (Semipalatinsk Treaty, 2006). All these treaties have now entered into force. Mongolia has also unilaterally declared itself nuclear weapon-free and Antarctica is denuclearized as a consequence of the 1959 Washington Treaty that demilitarized the continent and reserved it for exclusively peaceful purposes.
A NWFZ in the Middle East was first proposed by the Shah of Persia in 1974 with the endorsement of the Egyptian government. In 1990, Egypt proposed to broaden the scope of the zone and to turn it into a WMD-free zone so to target not only Israel’s nuclear programme but also the chemical and bacteriological weapons possessed by other Middle Eastern states. Since the 1980s, the UN General Assembly has annually adopted a resolution by consensus supporting the initiative. The WMD-free zone was also mentioned, among others, in Security Council Resolutions 687 (1991) on Iraq. Negotiations have however stalled for a long time but have gained momentum when, at the 1995 Review Conference of the NPT, the so-called Middle East Resolution was adopted as part of the package deal for the Arab States to agree to the indefinite extension of the NPT. The resolution, which was reaffirmed at the 2000 NPT Review Conference, endorsed the peace process in the Middle East, called the remaining countries not party to the NPT to accede as soon as possible and accept full scope IAEA safeguards, and called all Middle East states and NPT parties, in particular the nuclear weapon states, to make every effort to establish a WMD-free zone in the region. The subsequent 2010 NPT Review Conference finally called for a conference, to be held in 2012, in view of the establishment of such a zone. In October 2011, the UN Secretary-General announced that Finland had been chosen to host the conference with Jaakko Laajava, Under-Secretary of State in Finland’s Ministry of Foreign Affairs, acting as the ‘facilitator’. It is still unclear whether it will be possible to hold the conference before the end of the year. In any case, the conference’s purpose is not to adopt a treaty, but to be a further step in the negotiation process that should hopefully lead to the drafting of the treaty.