The ATT – A Predictable Failure

The Arms Trade Treaty (ATT) negotiations that took place at the UN this July ended as a considerable diplomatic failure, – not because the draft Treaty did not command consensus, but because consensus was blocked by the wrong government. Having insisted on rules of procedure that required consensus for adoption of the Treaty (as opposed to the normal procedure for Treaty adoption laid down in the Vienna Convention on the Law of Treaties), key States had calculated that a compromise text would be blocked by those strongly opposed to the ATT, such as Syria, Iran, Venezuela, North Korea or others. Such a “consensus minus a few very negative States” draft Treaty text could then have been forwarded to the General Assembly and adopted there, as the case was with the CTBT[1] after it was blocked in the CD[2] in 1996.

On the very last day of the Diplomatic Conference (27 July), however, the US delegation took the floor and stated that they were not in a position to support adoption of the draft Treaty text of 26 July. This took the Conference by surprise, as this draft was exactly the foreseen “consensus minus a few very negative states” text. The US had been heavily involved in working out the tough compromises, not least regarding the two most difficult issues: 1) should ammunition be included in the Treaty’s scope, and 2) should there be an obligation not to authorize an arms export if the arms would be used for serious violations of human rights law or international humanitarian law. The 26 July draft Treaty text solved both of these contentious issues in a manner that appeared to be acceptable to both the somewhat restrictive States as well as the more progressive ones, along with civil society and the ICRC. When the US backed out of the compromise they had been a key party to, the draft Treaty’s status suddenly went from being a text that could have been forwarded to this fall’s General Assembly as is, to being just a possible basis for further negotiations.

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Welcoming Dr. Gro Nystuen to Arms Control Law!

I’d like to welcome a new member of the Arms Control Law blogging team, Dr. Gro Nystuen.  Dr. Nystuen has a wealth of experience in lawmaking and legal interpretation of sources relating particularly to conventional weapons.  She will add significantly to the pool of expertise here at Arms Control Law, and it’s a great pleasure to have her on board! 

Her first post will follow shortly, and will consist of some thoughts on the recently concluded U.N. ATT conference. 

Please see a summary of her impressive bio below:

Dr. Gro Nystuen is Senior Partner at the International Law and Policy Institute (ILPI) in Oslo where she works on public international law issues, including the ILPI Nuclear Weapons Project (http://nwp.ilpi.org/), humanitarian law, law of armed conflict and disarmament.  She took part in the diplomatic processes on the Mine Ban Convention in 1996-1997 and the Convention on Cluster Munitions in 2007-2008, negotiations pertaining to the CCW, as well as the Arms Trade Treaty negotiations 2010 – 2012, on behalf of the Norwegian Ministry for Foreign Affairs. Dr. Nystuen works part time as Associate Professor at the University of Oslo and at the Defense Staff University College in Oslo. She worked in the Norwegian Ministry for Foreign Affairs from 1991 to 2005. She published her doctoral dissertation on the Dayton Peace Agreement, and has published a number of articles on international law, in areas such as international humanitarian law, human rights law, international terrorism, corporate social responsibility and jus ad bellum issues.  More information on her experience and publications can be found at http://www.ilpi.org/?p=32&sid=8

ACW Post and FP Article by Jeffrey Lewis

I wanted to recommend to readers Jeffrey Lewis’s most recent post over at Arms Control Wonk, which also links to a very good article he recently wrote at Foreign Policy.  Both address U.S. intelligence assessments of Iran’s nuclear program, and in them Jeffrey provides some very interesting analysis.  What stood out to me particularly is some analysis Jeffrey provides about the historical record of the consequences of counterproliferation-oriented preemptive military strikes.  Here’s a block quote from Jeffrey’s post:

The decision to conduct an airstrike or not is an interesting policy choice.  (Keeping in mind I have a very high burden of presumption against  the use of force in general.) The benefit of a strike is an induced pause in the program — more or less what we have now though imposed through force.  The question is whether an airstrike creates more delay than the current indecision of the Supreme Leader.  So far, I think, the best answer has been no — the NIE believes Iran is reluctant to force the issue by attempting to weaponize its capabilities.

This framing of the policy problem assumes that, once attacked, the Supreme Leader would very likely order a crash program to acquire a nuclear deterrent, a fear that stems directly from Saddam’s reaction to Israel’s destruction of the Osirak reactor. One of the dumbest things I have seen written in a long time is this:

“A similar argument was used by critics of the prospective Israeli strike against Iraq’s nuclear reactor back in 1981 (the critics included then Labor Party head Shimon Peres, now Israel’s president, who reportedly is a major critic of the prospective attack on Iran). But that successful strike actually put paid to Saddam Hussein’s nuclear weapons program, which was never resurrected.”

Iraq did reconstitute its nuclear program as we discovered after the 1991 Gulf War.  There is no room for disagreement on this factual point. Whether the Iraqis were competent enough to ever figure it out, they successfully hid an enrichment program for a decade, which probably accounts in no small part for Iran’s late 1980s interest in enrichment technology.

Moreover, the Iraqi “nuclear weapons program” — in the sense of a formal commitment by Saddam to seek nuclear weapons — is best understood a response to the strike on Osirak.  All of the historical evidence that I have seen –largely in the form of memoirs by Iraqi scientists like Madhi Obeidi, Imad Khadduri and Jafar Dhia Jafar — suggests Saddam had yet to decide to seek nuclear weapons until the humiliation of the strike by Israel.  One can suspect he would have gotten around to it eventually, but as it happened the best evidence is that the airstrike was the catalyst for the Iraqi nuclear weapons effort, which then proceeded undetected for nearly a decade.

This observation is in perfect harmony with the conclusions of Malfrid Braut-Hegghammer’s recent International Security article entitled “Revisiting Osirak: Preventive Attacks and Nuclear Proliferation Risks“

I think that both Jeffrey’s and Malfrid’s conclusions about the likely negative proliferation consequences of counterproliferation-oriented preemptive military strikes, based in the example of Osirak, are part of a growing consensus to this effect. And this consensus should weigh heavily in the ‘negative’ column of any state’s decisionmaking calculus of whether to engage in such a strike against another state.

UNSCR 1929 – The Slayer of Commercial Contracts?

I’ve seen a couple of news stories lately about a lawsuit brought by Iran against Russia, for alleged breach by Russia of a contract to supply S-300 surface-to-air missiles to Iran (see stories here, here and here). More precisely, this would I assume be a claim for breach initiated by Iran under the contract, which apparently provides for arbitration of disputes at the ICC Court of Arbitration in Geneva. 

 Apparently, the $800 million contract was signed in 2007, but Russian President Medvedev signed a decree terminating the contract in September 2010.  Russia’s stated reason for the termination was that fulfilling the contract would be in violation of U.N. Security Council Resolution 1929, adopted in June of 2010.

 So, in April 2011 Iran instituted the claim for breach at the ICC.  Announcing the action, ­Iranian Ambassador in Russia Seyed Mahmoud-Reza Sajjadi reportedly said:

 “We consider the S-300 complex as not falling under the UN Security Council resolution, therefore we are suing Russia to give it this legal cause . . . ”

 This case interested me because it is a rare instance of one state canceling an already existing commercial contract with another state on the basis of a U.N. Security Council Resolution. And, of course, it interested me because it involved a source of arms control law emanating from the U.N. Security Council.

 Thinking about this case brought back to my mind another, similar case, involving the same U.N. Security Council Resolution. In this case, Pakistan and Iran entered into a commercial contract whereunder Pakistan would supply, and Iran would purchase, natural gas. The contract was reportedly signed on May 24, 2009 (see stories here, here, here and here).

Under the contract, both states reportedly agreed to lay pipelines up to their respective borders by 2014 to carry the gas from Pakistan to Iran. The contract reportedly provided that in the event one side was unable to carry out its obligations of building the pipeline on time, it would be required to pay $2 million per day to the other state as penalty.

 Its been a bit more difficult for me to work out the timeline on this case – and I welcome any comments that clarify it – but from what I can gather, after the passage of UNSC Resolution 1929, the government of Pakistan decided it would not go through with the pipeline/gas contract with Iran, citing to Resolution 1929 as a legal prohibition of the deal.  I haven’t found any indication that this case was ever submitted to a judicial or arbitral forum for dispute settlement. However, it has definitely become a sore spot in Iranian-Pakistani diplomatic relations.

 Thinking about these two cases, then – both the Russia-Iran missile contract, and the Pakistan-Iran gas contract – there are some obvious similarities.  Both are commercial contracts entered into before the passage of UNSC Resolution 1929. In both cases, the state contracting with Iran subsequently argued that they could not legally fulfill their end of the contract because of prohibitive provisions in UNSCR 1929.  In both cases, Iran disputed that legal analysis.

 I’ll just go ahead and add one more similarity to that list. In both cases, the legal conclusions advanced by the states contracting with Iran, and cited as the reason for their effective unilateral termination of the commercial contract, were COMPLETE CRAP. And I’m confident that in both cases, the state making that argument knew that it was complete crap.

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New Article by Mark Hibbs on 123 Agreements

I wanted to call readers’ attention to an excellent new article by Mark Hibbs on the Carnegie website, on the topic of U.S. diplomacy in negotiating nuclear sharing (123) agreements, and particularly on the subject of the so called “gold standard” provision prohibiting ENR activities by partner states.  I previously blogged about this issue here and here.

I completely agree with Fred McGoldrick’s comment at the end of the article.  Mark’s insight, equity, and pragmatism on this issue is truly a breath of fresh air amidst so much ideologically driven, USG-brown-nosing commentary on the issue by most in the U.S. nonproliferation community. 

I’m going to write a post soon giving my thoughts on the failings of the U.S. nonproliferation expert community generally (Mark and a few others excluded). Basically what I’ll be saying is that this behavior is par for the course.

Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?

Like everyone else, I continue to see media reports about the prospect of either a U.S., or far more likely an Israeli, military strike on Iranian nuclear facilities.  It has something of a soap opera aspect to it – sometimes there’s a lot of talk about it and some firebrand statements are made by either U.S. or Israeli officials, and everyone is just sure we’re only weeks away from an Israeli strike. And then a week later, the furor dies down and you read more toned-down statements from other U.S. and Israeli officials, stressing that there’s still time for diplomacy to work. 

 I’ve come pretty close to being convinced that the whole thing is much more political theatre than it is a real potentiality.  The safe money seems to be on the idea that Israel in particular uses this kind of ratcheted-up rhetoric when it wants to put pressure on the P5+1 to make progress in their diplomatic dealings with Iran – progress being defined by Israel as Iran agreeing to every demand of the West, however unreasonable or illegal. And then after a suitable amount of pressure is exerted on the crucible of the negotiations, Israel backs off of its threats in order to wait for the next key, strategic moment to play the bad cop to the P5+1’s incompetent cop.

That’s my political read of the situation. But, just for the sake of argument, lets assume for the moment that there really is a serious potential for either a U.S. or Israeli military strike against Iran’s nuclear facilities, purposed in degrading Iran’s nuclear program and its ability to develop nuclear weapons.  Would such a strike be lawful under international law?

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New Book on Controlling Illicit Trade

I wanted to bring readers’ attention to the new book entitled Governing Guns, Preventing Plunder: International Cooperation against Illicit Trade, authored by Asif Efrat and recently published by OUP.  I’ll exerpt from the OUP website below, including the impressive reviews by Beth Simmons, Anne-Marie Slaughter, and Matthew Evangelista (not a bad group of endorsements!).

I havent read the book yet, but it seems to me from what I can tell so far that its the kind of book that seeks to identify the underlying factors of value and interest that are really driving observable problems in international legal regulation in a number of areas of illicit trade, including small arms.  And that is a very valuable inquiry. 

From the OUP website:

Description

From human trafficking to the smuggling of small arms to the looting of antiquities, illicit trade poses significant threats to international order. So why is it so difficult to establish international cooperation against illicit trade? Governing Guns, Preventing Plunder offers a novel, thought-provoking answer to this crucial question.Conventional wisdom holds that criminal groups are the biggest obstacle to efforts to suppress illicit trade. Contrarily, Asif Efrat explains how legitimate actors, such as museums that acquire looted antiquities, seek to hinder these regulatory efforts. Yet such attempts to evade regulation fuel international political conflicts between governments demanding action against illicit trade and others that are reluctant to cooperate. The book offers a framework for understanding the domestic origins of these conflicts and how the distribution of power shapes their outcome. Through this framework, Efrat explains why the interests of governments vary across countries, trades, and time. In a fascinating empirical analysis, he solves a variety of puzzles: Why is the international regulation of small arms much weaker than international drug control? What led the United States and Britain to oppose the efforts against the plunder of antiquities, and why did they ultimately join these efforts? How did American pressure motivate Israel to tackle sex trafficking? Efrat’s findings will change the way we think about illicit trade, offering valuable insights to scholars, activists, and policymakers. 

Reviews

 

“This book is a major accomplishment. It is rare indeed to find a volume in the social sciences that addresses the question of how international cooperation occurs in the area of banned activities and illicit goods. Asif Efrat weaves a domestic political economy account into his analysis of international collaboration to explain why some governments have embraced (and others have resisted) such bans, from efforts to control trade in small arms to criminalization of human trafficking; from illicit drugs to trade in looted antiquities. The evidentiary basis on which this work rests is monumental, including original evidence on the preferences of 118 governments on regulating illicit international trade in small arms. Compelling, engaging and rigorous, this book is one of the very best reads available on the topic of cooperation among governments to define and address international criminal activity.”– Beth A. Simmons, Harvard University

Is the Conclusion of an Additional Protocol Mandatory under the NPT?

In an article published in the July/August 2012 of Arms Control Today (‘The Rocky Road of Nuclear Diplomacy With Iran’), the former IAEA Head of Safeguards, Olli Heinonen, repeats the well-known contention that progress in the negotiations on the Iranian nuclear programme would require Iran’s agreement ‘to implement an additional protocol to its safeguards agreement’ with the IAEA (the reader in search of an overview of the differences between the comprehensive IAEA Safeguards Agreements (INFCIRC/153) and the IAEA Additional Protocol (INFCIRC/540), shall have a look at the IAEA document ‘The Safeguards System of the International Atomic Energy Agency’, undated, available at http://www.iaea.org/OurWork/SG/documents/safeg_system.pdf, and the book published by the IAEA, The Evolution of IAEA Safeguards, Vienna: International Atomic Energy Agency, 1998).

It is interesting to observe that this ‘requirement’, which is basically a political one, has for some time been put in a ‘legal’ form, for instance during the latest Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (2010), during which several States parties expressed the view that the conclusion of an Additional Protocol (AP) is mandatory under Article III of the NPT.

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International Law and Nonproliferation

Back in June, I had a really stimulating discussion on the comment thread of a post by Mark Hibbs over at Arms Control Wonk. This is one of many great conversations I’ve had on the threads at ACW. I’ve long been grateful particularly to Mark Hibbs, who is one of the core bloggers over there, and who has been singularly important for many years through his contributions as a journalist and analyst on issues of arms control.  His posts are always enlightening, and his liberal comments policy allows for full and frank discussion of the issues by readers. That’s not a policy shared by all of the bloggers over at ACW, but it’s a policy I’d like to emulate here at Arms Control Law.

You can see the whole discussion and the original post by Mark here.

However, for purposes of this post, I have edited the conversation in order to focus only on the exchange I had with George Herbert on the topic of the role of international law in the context of the Iranian nuclear crisis specifically, and more generally in the entire issue area of nonproliferation.  I thought it was a frank, engaging, enlightening and (overall) collegial discussion, and I thank George again for taking the time to discuss the issue with me. I thought I would copy the exchange here because it really does delve into some fundamental and perennial questions about the proper role and contribution, and the limits thereof, of international law in the context of nonproliferation related disputes – especially ones as high profile and dangerous as the dispute over Iran’s nuclear program.

Just as an editorial note, while I have removed a few of the comments by others in the thread, I have preserved every word of George’s and my comments. You will in addition see one or two other commenters quoted/mentioned, which I couldn’t excise without making the conversation seem confusing.

So without further ado, here it is. I hope you find it interesting:

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South Korea as Oliver Twist

I just saw this story about the ongoing negotiations between the U.S. and South Korea on a replacement 123 agreement. South Korea very much wants to be able to have domestic ENR capability and the U.S. is not willing to sign a deal with them unless they commit not to have it.

Theres just a tone to stories like this of the little developing state begging the big powerful developed supplier state to please, sir, allow them to have this technology that they really want, and think would be really beneficial for them. Like little Oliver asking for more gruel from the headmaster. The paternalism is just palpable, and really disturbing to me. The child presents its well-thought-through reasons why they should have the new stuff, and how they’ll be extra careful with it and make sure it doesnt hurt anyone. And then the dad just shoots them down, saying they dont really need it; its just too dangerous for them to have; they can’t be trusted to be responsible with it yet; theyre fine without it and should just keep relying on dad for the stuff.

I noted in my post below on the current gold standard interagency review about the debate going on in the comments to Mark Hibbs’ post over at Arms Control Wonk. David Fite in those comments tries to persuade us that when countries like Taiwan and South Korea agree to no-ENR commitments in their 123 agreements witht the U.S., its completely voluntary and an exercise of their sovereign right to choose that everyone should respect. And even more, that we should view such decisions as state actions producing a new global norm.

Well South Korea doesnt look very sovereign here to me.