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.
‘We have invited think-tankers and academics’. This sentence, often spoken by conference organisers, never fails to annoy me. Certainly if in the next sentence gratitude is then expressed for the think-tankers’ willingness to convey the academics’ ideas to policy-makers. Read: nothing very substantial is expected from the think-tankers themselves. Their job is just to translate academic brilliance into terms that even practitioners, who apparently are even lower in the academics’ esteem, can understand.
This is like saying that there are British and European participants. Now, some of the former may wish to deny it, and some of the latter may sometimes wish that they were not, but all British really are Europeans. Just like all think-tankers are academics, only of a peculiar kind. But then all academics are peculiar. Or, let us say, all academics have their own very personal view of the world and an ego strong enough to provide them with the urge to put that into writing and share it with the world. If they do not, they should have chosen a real job. (My father, who was an engineer, which is a very real job, would have approved of this sentence, I like to think).
There is but one species therefore, academics, some of whom dwell in universities and some in think-tanks. Some (though not many enough) even move in between both habitats, as I do. (We have the benefit of being able to say, when our friends and family doubt whether reading, writing, travelling and attending receptions is in fact a real job: I teach). All of them write. The difference is perhaps that the think-tanking kind more often than the university-dwellers know why they write any particular paper.
The ‘So What’ question
Too often it strikes me, after listening to a conference paper or reading a journal article in my field, that I did not learn much that I did not know already. Except how to phrase something into such impenetrable jargon that it totally obscures the fact that the paper is merely stating the obvious. At night it is dark and there is sun in the daytime. (Or, as I write this in Belgium, there may be sun in the daytime). To quote François Mitterrand: Et alors? So what? This is the ultimate think-tank question. (And very useful as well when drafted on the jury for a PhD that is far beyond one’s expertise – if nothing else, one can always ask that). Now that we have been provided with this information, whether it is new or not, what do we make of it? What do we do with it?
What defines an academic is the urge to write. The immodest conviction that one has something to say that is worth publicising. And yes, the desire to see one’s name in print – vanity is the engine of science. Vice versa therefore, if one has nothing to say, please do not write about it. It would make the selection of what to read from the mass of books and articles that reaches one daily so much easier. If there is no message, do not publish it.
In political science, the academic branch that like the majority of academics in the think-tanks I belong to, that message has to relate to the real world. The point of political science is to say something useful about politics and policy. Useful for those who engage in politics and make policy: citizens, officials, and politicians. In that intuition is crucial, science is somewhat of an art, but still l’art pour l’art cannot be the organising principle. Society does not fund think-tanks and political science departments at universities just so that political scientists can talk among themselves in a language that ensures that nobody else can follow. If a paper cannot be understood by the diplomat or officer, for example, who happens to be working on the issue that the academic writes about, it is a bad paper.
That does not mean that every publication has to finish with three recommendations or ten commandments. Innovative analysis is useful as such. Policy-makers can benefit from seeing an issue from a new angle, highlighting connections that they were not aware of, or a part of the history that they had forgotten (for institutional memory is as short as rotation of staff is frequent), all of which helps the understanding of what is happening and will thus improve the quality of policy-making.
Concrete recommendations are of course a purpose too. But academics should not become too immodest either. Rare are the cases in which an actual policy can be traced back to a specific suggestion by a specific academic. What rather happens is that if an idea resonates, it will start circulating (to which the author can contribute by speaking about it as often as he or she can) and become part of the context. Within that context, the decision-makers eventually decide, taking from it and combining the elements that they deem useful. Laws are like sausages, Bismarck is reputed to have said, the less you know about how they are made the better – dissecting the sausage to ascertain which bit derives from which academic is too distasteful to attempt.
In my own experience, the time that I had the most influence is also the time that I had the least influence. In early 2010, a Spanish EU Presidency non-paper about ‘permanent structured cooperation’, the new mechanism to stimulate European defence introduced by the Lisbon Treaty, was almost entirely copied from one of my publications on how to implement this ‘PESCO’. It was also entirely ignored, for in the end PESCO was simply never implemented at all. The reader will understand that I remain somewhat sceptical of all those colleagues for example who claim that they have really inspired the 2003 European Security Strategy. For one, if all of them were right, the Strategy would have to be a lot longer than it is to accommodate so much brilliance.
Based on their analysis of concrete issues, academics also attempt to develop general theories. Here again, academics should take care not to make theory for theory’s sake. Theories, concepts, and definitions are not ends in themselves but tools, to serve the analysis of the real world. In other words, theory has to be useful just like any other product of political science. Usefulness requires elegance and clarity of expression. If a particular theory can only be understood by someone who has read all other theories on the same subject, that is, by someone who has nothing to do but dabble in theory, it definitely is not useful.
Furthermore, no single theory or concept can explain everything. It is great fun for example to invent labels, such as ‘normative power Europe’ or its opposite, ‘l’Europe puissance’ – I have tried to myself (and failed). If they catch on, their inventor’s wildest dream may be realised. Soon nobody will read the article in which you came up with it any longer. But forever more every use of your concept by every colleague will automatically trigger a bibliographic reference, and your citation record will explode. So far so good, as long as nobody begins to believe that any such theory or concept can do more than capture just one dimension of, in this case, Europe. For that belief quickly engenders the temptation to adjust reality so that no empirical material would distort the beautiful theory. (Which, I hasten to add, is an error more often made by overzealous disciples rather than by the originator of the concept).
Politics and policy are too complex to fit in a single explanation. Often indeed there is no big explanation, and developments result from incompetence and improvisation. Nevertheless, a combination of theories and concepts can help to understand and explain what is happening and to formulate recommendations on how to deal with it. Rarely however can they predict what will happen. But political scientists can help to recommend strategies that act as frameworks to assist the policy-maker to react to the unpredictable, by identifying what is vital and what is not.
Because of their respective employers’ expectations, university-based academics usually devote more time to the development of the tool, i.e. theory, than colleagues in the think-tanks. In the application of the tool, the latter will probably attempt more than the former not only to analyse and to understand but also to formulate recommendations. When it comes to setting the research agenda, choosing which area of politics or policy to analyse, universities leave the academic more freedom of choice than think-tanks, although the need to obtain project-based funding will be an important motivation here too. Think-tanks have to direct their research towards the areas of most interest to their funder. That funder (which, for European think-tanks, often is government) may have a political agenda to which the think-tank has to subscribe. But these are broad agendas which do not detract from the academic freedom, for example to promote European integration. If the political agenda goes further, for example to promote the Christian-democratic view of European integration or to stimulate the acquisition of the Rafale fighter aircraft, we are no longer talking about a think-tank, but about a lobbyist or a party research service.
Rather than an absolute division of labour and method between universities and think-tanks, all of this is a matter of degree. Essentially university-based academics and think-tanking academics (including those who used to be practitioners) do the same thing: producing a message that is of use for politics and policy, in a spirit of complete intellectual freedom, and living up to rigorous scientific standards.
Tittle-tattle over a glass of wine
University professors and think-tankers would do well to continuously interact with each other therefore. The former should consider to once in a while distil a shorter policy paper from a learned journal article, in order to more easily reach an audience of practitioners. The latter should from time to time compile the findings of some of their short-term policy papers and produce journals and books that have a much longer shelf-live. The former should regularly participate in policy seminars, to ensure that they remain in touch with the world that they are studying. The latter should occasionally attend scientific conferences to make sure that they keep abreast of scientific developments in their field.
In fact, attending one of the big academic conferences is not that different from what think-tankers do every day. At an academic festival such as the annual convention of the International Studies Association (ISA), where thousands of academics mingle, the key thing is to have a lunch and a dinner appointment every day. Time allowing, one can attend the odd panel in between, but networking is the added value of such events. This is exactly how an academic, whether from a think-tank or a university, can collect the most insights about his object of study: talking with practitioners over lunch or dinner or at receptions. Or even just over a cup of coffee, for the more ascetic among us, but in any case in an informal setting. Admittedly, such tittle-tattle, as the editor of a special issue (and a close friend) once dubbed the sources of my submission, is not easy to include in the references of one’s paper. But it is often much more productive than a formal interview.
Not every statement in every paper can be based on another written source anyway. If it is not allowed to write something down unless it has been written before, political science is hardly going to progress. The real added value of a paper will always be the author’s personal opinion – his message. An academic should never hesitate therefore and use his liberty to engage in franc-parler to the utmost. Many official documents are bland enough – there is no reason for us academics to use stale language as well. Why should one read between the lines of an academic paper? Just say things as they are, because you have the unique freedom to do so.
Official documents are of course an important source of information. But one should take care not to over-interpret them. True, when they are being negotiated, every point and comma counts. But two years later, nearly all officials involved in the drafting will have moved on to another post, often in another country or another organisation. Those who succeeded them will have no idea why this particular comma is indeed a comma and not a semi-colon. An academic’s own output consists mostly of his or her writings. Quite understandably one hopes, against better knowledge, that writings can change the world. Alas, it is not because the European Security Strategy, the subject of much of my own work, says something, that this is how things really are. There was much rejoicing in certain circles when the 2008 Report on the Implementation of the Strategy referred to the notion of human security. But I distinctly remember a Commission official, who had pushed for this, replying to me: ‘Well, now that it is in there, we better come up with a definition of what we mean by it’.
Once again, speaking with practitioners is indispensable to get as a complete a picture as possible and to ensure that one does not stray too far from reality. An academic’s job is to think outside the box, to link seemingly disparate dimensions and facts, and to be creative and innovative – but these are not synonyms for unrealistic. Strategy can be daring, and strategy must determine the allocation of the means – but its formulation will be influenced by the knowledge of which means can realistically be made available, and of the obstacles to be overcome. To be useful to policy-makers an academic must be a pragmatic idealist: he or she needs to have a concept of the big ideal, in order to give a sense of where to go, in the full knowledge that one will reach there by incremental, pragmatic steps.
Political science cannot function in splendid isolation, without permanent interaction with the people who operate in the areas that it studies. Or one will end up in the position of the colleague who ‘proved’ in her presentation at a big conference that the EU’s European Security and Defence College did not exist – at a moment when I had been lecturing for it for three years. My point in the ensuing Q&A – ‘I teach, therefore it is’ – was not well-received, but the embarrassment was perfectly avoidable.
Am I an academic? Yes – and I would not want to be anything else. Given that it is unlikely that the people will call on me to become the High Representative for EU foreign policy.
We are pleased to share the birth of our new Yearbook.
The Ethiopian Yearbook of International Law (EtYIL) is a peer-reviewed academic journal that publishes scholarly works of the highest standard in the field of international law broadly defined, but with a focus on Ethiopia and the Horn of Africa region. For more information please see http://www.springer.com/series/15093 . The first edition of the EtYIL is due for publication in 2016. It is a pleasure to invite you to submit ideas, abstracts and manuscripts for the 2017 edition of the Yearbook. To do so please contact the Editorial Team at firstname.lastname@example.org“
Accountablity of armament inventors and manufacturers in International Law: the confession of Mikhail KalashnikovPosted: January 14, 2014
During the League of Nations, there were some attempts, including a drat convention, which were meant to strictly regulate or even ban private manufactures of arms. Interestingly, such efforts were also supported by countries such as the USA. In contrast, the UN and its members appear to see the manufacturing of conventional weapons outside the reach of international law. Some studies have been conducted on the feasibility and desirability of regulating manufacturing of armaments by the UN, but without any substantive success.
However, the UN Firearms Protocol 2001 which supplements the UN Convention again Transnational Organised Crime 2000 came up with a regulatory framework such as the duty to hold a licence, record keeping, marking and reporting of arms manufacturers, without touching the debate over the accountability of arms manufacturers for the use of their weapons in armed violence abroad (and internally).
The debate over manufacturing, although not at the heart of conventional arms control as same as arms transfer across borders, divides countries and others. Some argue that manufacturers (which may or [may not] include inventors) must be accountable for what they produce and the consequences of the use of their products; such accountability may also be attributed to a state provided that the requirements of attribution are satisfied. This is a strong position given that most manufactures are also exporters and dealers of arms. The opposing view is that armament manufactures do their business based on the laws of manufacturing countries; they are important actors in defending a state’s national security and promoting the technological and economic advancement of countries. Mikhail Kalashnikov, the famous Russian engineer who invented the worst killing (but also defending) automatic riffle, Kalashnikov, was among those who defended manufacturers and inventors from any accountability (moral or otherwise) of the consequences of the weapons they make. His position was that those who receive and use the weapons are the ones who must not use and abuse them to commit terrorism and other crimes.
Kalashnikov died last month at the page of 95; it is reported that the confession he made and sent to the religious leader of the Orthodox Church of Russia includes the following question: “My spiritual pain is unbearable. “I keep having the same unsolved question: if my rifle claimed people’s lives, then can it be that I… a Christian and an Orthodox believer, was to blame for their deaths?”.
Please read the rest from the news article here: http://www.bbc.co.uk/news/world-middle-east-25709371
It must be noted that more than 100 million AK-47 rifles are said to be in circulation, and they are the main, but not necessarily the only, tools of armed violence in most trouble parts of the world. It must also be noted that the position of the Russian Church was not different from state position -we may well hear a confession on this subject from the Church itself sooner or later?
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.
It is extremely disturbing and sad for the people of Egypt and to humanity that hundreds of people have been killed in Egypt by the army; the interim Government blames the Muslim Brotherhood for engaging in armed violence. The situation may, or may not, deteriorate further. The response of the international community ranges from condemning the violent crackdown against protesters to that of calling restraint on both sides of the equation in Egypt. It has to be underlined that the AU appears to be the only international organisation which acted decisively and principally, if not without shortcomings, as I argued and highlighted in my recent post with EJIL: Talk (http://www.ejiltalk.org/author/zyihdego/).
Clearly, the situation was, and still is, complex. The way the military took power can thus be controversial. What is not controversial, however, is the massive violations of international human rights law – arbitrarily detaining Morsi and his officials and harassing and now killing their supporters. More specifically, Arts 6 (1) and 9 (1) of the ICCPR requires states and their agents to respect and protect the right to life and the dignity and security of a person. The Egyptian military (and other security forces) have violated this core obligation of the State of Egypt by killing dozens of their citizens. It has to be emphasized that those who participate in religious or other ideological groups are also protected by this fundamental human rights. The 1979 UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law enforcement Officials of 1990 prohibit illegal, disproportionate and unnecessary use of force against civilians. Both instruments reflect rules of customary international law as indicated in McCann v. UK (ECHR, 5 September 1995). For further and detailed discussion on the principles see Z. Yihdego, The Arms Trade and International Law, Hart: Oxford, 1997, pp 242-250).
Article 9 of the 1990 Basic Principles underlined that:
‘Law enforcement officials shall not use firearms against persons except in self-defence of other against the imminent threat of death or serious injury, to prevent the preparation of a particular serious crime involving grave threat to life, to arrest a person presenting such a danger and extreme means are insufficient to achieve these objectives. In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life’.
Without going into polemics of what happened in Egypt before yesterday, the killing of more than 600 people in one day including foreign journalists, using the army and their bulldozers was clearly unnecessary and disproportionate. Even if there were some armed men among the protestors, as claimed by Egyptian State TV that does not give the Army to fire indiscriminately. I would therefore argue, although further investigation might be necessary to establish the details, as demanded by the UN human rights Commissioner, that, what has happened in Cairo was a blatant violation of fundamental human rights in a larger scale.
These serious violations of international law in Egypt have implications for arms control law in general and the arms trade in particular. The USA announced that it is suspending its joint military training with Egypt; but questions will further be asked regarding arms supplies to the Egyptian army under those circumstances by the USA or other weapon supplying countries. Although the UN Arms Trade Treaty (ATT) is not yet entered into force, the US and other major exporters, West European States in particular strongly supported the ATT. 84 state signed and 4 of them ratified the Treaty in just one month time since it was made open to signature and ratification.
Article 7 of the Treaty obliges States to assess the international human rights risk of arms exports in country of destination. If there is overriding risk that the weapons will be used against these and other values of the international order arms exports shall not be authorised. It may well be argued that the ATT is not yet in force and thus not applicable to the Egyptian situation. However, the ATT’s most obligations are deduced from existing legal obligation of states to refrain from contributing or assisting a third state who is engaged in seriously offending international norms. Even if one doubts this assertion most, if not all, arms exporting countries, including the USA have domestic laws which prohibit such practices. The US domestic law is robust and clear enough, although not without shortcomings. For instance, the USA said that among its Red-Lines with respect to the ATT include:
‘There will be no lowering of current international standards.
Existing nonproliferation and export control regimes must not be undermined.
However, it is open-secrete that the USA is one of the major arms suppliers to Egypt which includes the supply of F-16 modern fighters. The US may justify this by its national security and other regional interests but would it be lawful, ethical and politically acceptable to arm the Egyptian army?
Amnesty International was urging governments to halting their arms transfer to the Egyptian army since 2011.
Global arms suppliers must halt the transfer of small arms, ammunition and other repressive equipment to the Egyptian military and security forces, Amnesty International said today after the army again violently dispersed protests in Cairo.
The situation has now been escalated to a different level where hundreds of civilians who are demanding for reinstating a democratically elected government, irrespective of their religious ideology or whether they are bad or good, have been massacred on a broad daylight. The USA and others who supply armaments to Egypt must re-think about their policy of supplying with weapons to Egypt. Cancelling a joint military exercise is a good move but not enough.
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.
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.
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….”
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.