Our followers in London and the UK will be interested in this panel on the Iran nuclear deal that will take place at the University of Westminster in London on 17 November. As you know, on 14 July 2015 the Joint Comprehensive Plan of Action agreed by Iran, the P5+1 and the European Union was announced. Under the framework, Iran will substantially reduce its stockpiles of nuclear material, limit its future production of nuclear materials, and accept the IAEA’s Additional Protocol. In return, the P5+1 and the UN Security Council will lift all nuclear-related economic sanctions against Iran. But what legal obligations does the deal contain? How will we ensure that Iran is complying with them? Does the deal strengthen international peace and security or is it rather a threat to it? And why have other nations not faced as much scrutiny as Iran? The panel discussion will address these and other important questions from a legal, political and diplomatic perspective.
Speakers include, in addition to our own Dan Joyner, Sir Richard Dalton (British Ambassador to Iran 2002-2006; Associate Fellow, Middle East and North Africa Programme, Chatham House; President, British Iranian Chamber of Commerce) and Ambassador Peter Jenkins, CMG (Partner, the Ambassador Partnership).
To register, please click here.
An ASIL Insight I wrote on the case brought by Marshall Islands against the nuclear weapons states before the International Court of Justice has just been published online (to read it, click here). Comments are welcome.
In this particular case, Marco’s application of the notion to a single article rather than the totality of the treaty puzzles me. I would tend to agree with Dan’s counterpoint. However, Dan then refers to the CWC in its entirety to draw an analogy. In my mind a bit problematic for two reasons:
1. The CWC is a disarmament, rather than a non-proliferation treaty. It means that the weapon category in its entirety is banned and no exeception exists for any state, whether big or small; whether powerful or weak. However, more to the present discussion, as a consequence of the CWC being a disarmament treaty (i.e., going to zero and remaining at zero in the future), the convention is final. It does not have aspirational articles with regard to ambitions not covered by its own text.
2. Article VI of the NPT resembles more of Article IX of the BTWC:
Each State Party to this Convention affirms the recognized objective of effective prohibition of chemical weapons and, to this end, undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development, production and stockpiling and for their destruction, and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes.
I find it difficult to see how this article could have turned the BTWC into a CW disarmament treaty (as proponents of nuclear disarmament often tend to do with regard to Article VI of the NPT) or how it could reflect on customary law regarding CW, even if considering that most people view the 1925 Geneva Protocol banning the use of chemical and biological weapons as having entered into customary law.
Just like the CWC, the BTWC is also a disarmament treaty and has similiar finality with regard to biological and toxin weapons. Nevertheless, I would argue that the BTWC today, despite having fewer parties than the CWC, fits more firmly into customary law: no state actually claims having BW or maintaining an offensive BW programme. (For example, in an interview in Der Spiegel on 19 January 2009, Bashar al-Assad more than implicitly admitted to CW, but flatly denied BW.) This has important implications from an armament/disarmament perspective: there is no space whatsoever for testing weapons in the field, training troops or developing military doctrines for their use on both the strategic and tactical levels. Even for states not party to the BTWC. Such types of preparations can be and would be detected.
But back to BTWC, Article IX: between 1975 (EIF for the BTWC) and 1993 (Opening for signature of the CWC) we witnessed an accelerated CW armament competition between the US and the USSR (including the startup of the US binary production programme), the start of Iraq’s CW programme culminating in gas being used in the 1980-88 Gulf War; Libya’s CW programme, Syria’s, …
So, as far as the analogy with Dan’s argument goes (I am discussing 2 different weapon categories mentioned in a single treaty): each party to the BTWC, whether a possessor or non-possessor of CW was bound to negotiate the CWC, but it did not prevent several among them to develop, produce, or even use CW during the intervening period.
Customary international law plays an important role in the applications recently submitted by the Marshall Islands to the International Court of Justice (ICJ), particularly in those against the nuclear weapon states not parties to the Treaty on the Non-proliferation of Nuclear Weapons (NPT). Has Article VI of this treaty become binding on all states even beyond the NPT, as argued by the applicant?
Customary international law, which is generally non-written, is created by the convergence of two elements: practice by a sufficiently representative number of states and other subjects of international law (for instance, international organizations) and ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’ (to use the ICJ’s words in, among others, the North Sea Continental Shelf Judgment) or at least by social, political or economic exigencies (opinio juris ac necessitatis). The fact that a treaty has been almost universally ratified is not, on its own, sufficient evidence of its customary status. To reach this conclusion, one has to look at the practice and opinio juris of the states not parties to the treaty: my feeling is that Israel, India, Pakistan and North Korea are going exactly in the opposite direction. Furthermore, even certain states parties (i.e., the five nuclear weapon states) have conducted themselves and expressed views that are difficult to reconcile with the alleged customary nature of Article VI.
It is true that universality of practice and opinio is not necessary for the formation of customary international law. However, it is not because there are a few states against in spite of a significant majority in favour that a custom corresponding to Article VI cannot be considered formed, but because the contrary practice and opinio come from those states that have nuclear weapons. To be clear, I am not referring to the doctrine of the persistent objector: I am not arguing that a custom in force is not applicable to certain states. My point is rather that a customary norm cannot sediment unless the practice and opinio juris of the specially interested states support this. The International Law Association’s 2000 Report on the formation of customary international law confirms that the extensive character of state practice is more a qualitative than a quantitative criterion: ‘if all major interests (“specially affected States”) are represented, it is not essential for a majority of States to have participated (still less a great majority, or all of them)’ (p. 26). Specially affected states are those that had the opportunity to engage in the relevant practice. It is difficult to see, then, how Article VI can become customary international law without considering the practice and opinio juris of those states that possess nuclear weapons and to which the provision is primarily addressed. The fact that Article VI does not reflect customary international law is confirmed in the ICJ’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, where the Court states that the obligation ‘formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons’.
It should be incidentally noted that, if Article VI is only a treaty obligation and not also a customary provision, it would be at best an obligation erga omnes partes, and not erga omnes as too hastily argued by the applicant. In other words, it is an obligation assumed towards the group of the states parties collectively considered, but not towards the international community as a whole.
Last month Noha Tarek from Egypt commented on my reflection that neither members of the Non-Aligned Movement (NAM), with the exception of India, nor Arab League members have contributed financially or in kind to the elimination of Syria’s chemical weapons (CW). Syria participates in both groupings. She linked disarmament elements to a host of intra-regional and external politics and considered the relationship between Syria’s (read: Arab) CW and Israel’s nuclear arsenal.
It has taken me a while to reply. I could have easily registered my disagreement with several elements, but that does not open new perspectives for disarmament in the Middle East. Moreover, any ‘correctness’ of a viewpoint would depend entirely on whether Noha and I share a common taxonomy of issue interrelatedness, which we do not. On the contrary, I am absolutely convinced that the public discourse on disarmament in the region must change if any progress is to be made. By governments, to make negotiated solutions acceptable to their respective citizens. By the public to allow politicians and diplomats the space to back out of entrenched positions held for so many decades. Security, of course, remains paramount. However, it can be organised differently. Disarmament is after all the continuation of security policies by alternative means.
Can we move beyond the endless, anaemic exercises to describe every conceivable obstacle in their minutest detail? Is it possible for issue experts from international civil society to design from a purely technical viewpoint some first practical steps to offer substance to the disarmament debate ? This blog posting sketches a few possibilities. I am far from certain that I have the right answers (or even the right analysis for that matter), but the thoughts can hopefully foster a problem-solving discourse.