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.
I am thrilled to be launching a new blog, www.armscontrollaw.com As the name suggests, this blog will be devoted to discussion and analysis of arms control law subjects. I wanted to start this blog because all of the current blogs in the arms control area focus on either technical or politics/policy views of arms control. There has been no blog that provides a serious forum for rigorous discussion of legal issues relative to arms control, by arms control legal experts – until now!
The team of core bloggers at www.armscontrollaw.com is:
Professor Dan Joyner, University of Alabama School of Law
Dr. Marco Roscini, University of Westminster Faculty of Law
Mr. Pierre-Emmanuel Dupont, Rochelois, Besins & Associe
Dr. Zeray Yihdego, Oxford Brookes University Faculty of Law
Professor Eric Myjer, University of Utrecht Faculty of Law
Professor David Fidler, University of Indiana School of Law
Professor Barry Kellman, Depaul University College of Law
Professor Dieter Fleck, Formerly of the German Ministry of Defense
Professor James Fry, University of Hong Kong Faculty of Law
We will also be joined from time to time by guest bloggers.
We are currently aiming for a public announcement on July 16, 2012. At that time we’ll advertise it as widely as possible. So keep watching this space and other arms control and international law online spaces for the announcement!
I wanted to bring readers’ attention to two recent pieces of important arms control law related scholarship. The first is by Arms Control Law’s own Pierre-Emmanuel Dupont. Pierre’s article entitled Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran, will be published in the upcoming Volume 17 of the excellent peer-reviewed Journal of Conflict and Security Law. A draft of Pierre’s article can be viewed on SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2086415
Pierre also published a shorter extract from the article over at EJIL:Talk! on June 22. You can find that post here: http://www.ejiltalk.org/countermeasures-vs-collective-security-the-eu-sanctions-against-iran/
Pierre’s article is a thorough legal analysis of the EU’s unilaterally imposed sanctions on Iran, aimed at pressuring Iran regarding its nuclear program. He first determines that the EU’s sanctions are best classified as countermeasures under the law of state responsibility. This determination then guides his analysis as to the legality of the sanctions.
In my opinion, this article is the best scholarship currently available on the question of the legality of the recent unilateral EU (and by extension US) nonproliferation santions on Iran.
The second piece of recent scholarship is not quite as recent – it came out last summer in Volume 36, No. 1 of the leading journal International Security. Its a piece by Malfrid Braut-Hegghammer entitled Revisiting Osirak: Preventive Attacks and Nuclear Proliferation Risks. Here’s the summary of the article from the publisher’s website:
“Thirty years after the Israeli attack on the Osirak reactor in June 1981 the consequences for Iraq’s nuclear weapons program remain hotly debated. A new history of this program, based on several new Iraqi sources, yields a net assessment of the impact of the Israeli attack that differs from prevailing accounts. The attack had mixed effects: it triggered a covert nuclear weapons program that did not previously exist, while necessitating a more difficult and time-consuming technical route to developing nuclear weapons. Notwithstanding gross inefficiencies in the ensuing program, a decade later Iraq stood on the threshold of a nuclear weapons capability. This case suggests that preventive attacks can increase the long-term proliferation risk posed by the targeted state.”
I havent read this article yet myself, but it sounds like an important contribution to literature on the issue of counterproliferation-oriented preemptive uses of force. I’ve printed it out, though, along with the hundred other interesting and important looking articles I’d like to find time to read. You can find a link to the article at this link, but unfortunately its on subscription basis only: http://www.mitpressjournals.org/doi/abs/10.1162/ISEC_a_00046