Panel on the Iran nuclear deal

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.




My ASIL Insight on the Marshall Islands case

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.

Panel event on nuclear weapons

Those of you who find themselves in the London area on 28 October may be interested in this panel event on nuclear weapons that I am chairing. The panel will discuss the legality of the use of nuclear weapons under different international law regimes almost 20 years from the Advisory Opinion of the International Court of Justice. The event will also celebrate the book launch of: Nuclear Weapons Under International Law, G. Nystuen, S. Casey-Maslen and A. Golden Bersagel eds (Cambridge University Press, 2014). Attendance is free, but please register by emailing Eliza Watt.

My thoughts on the customary status of Article VI of the NPT

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.

Talking disarmament for the Middle East

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.

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Nuclear Strategy Push-Back Against the “Cyber Industrial Complex”?

Greg Austin of the EastWest Institute published a piece in China-US Focus on August 6th in which he identifies possible push-back against the US government’s race to achieve “cyber superiority” and the emergence of “the American cyber industrial complex” from people in the US military knowledgeable about US nuclear weapons and strategy. He argues that disclosures by Edward Snowden reveal a “lack of restraint” in US cyber behavior and:

This lack of restraint is especially important because the command and control of strategic nuclear weapons is a potential target both of cyber espionage and offensive cyber operations. The argument here is not to suggest a similarity between the weapons themselves, but to identify correctly the very close relationship between cyber operations and nuclear weapons planning. Thus the lack of restraint in cyber weapons might arguably affect (destabilize) pre-existing agreements that constrain nuclear weapons deployment and possible use.

The cyber superiority of the United States . . . is now a cause of strategic instability between nuclear armed powers. . . . [I]n the long run, the most influential voice to end the American quest for cyber military superiority may come from its own armed forces. There are military figures in the United States who have had responsibility for nuclear weapons command and control systems and who, in private, counsel caution. They advocate the need to abandon the quest for cyber dominance and pursue a strategy of “mutual security” in cyber space – though that has yet to be defined. They cite military exercises where the Blue team gets little or no warning of Red team disruptive cyber attack on systems that might affect critical nuclear command and control or wider war mobilization functions. Strategic nuclear stability may be at risk because of uncertainty about innovations in cyber attack capability. This question is worth much more attention.

Cybersecurity literature contains references and analogies to nuclear weapons and nuclear strategy, including attempts to draw on the nuclear experience to address what some perceive as a cyber arms race. However, Austin is talking about something different–concern among experts that what is happening with US cyber policy, strategy, and capabilities threatens US nuclear strategy and stability. I do not know how prominent such strategic introspection actually is, or whether it deserves the level of deliberation Austin advocates.

In the most general terms, Austin seeks reassessment of what he and others believe is an insufficiently restrained American quest for superiority in military and intelligence cyber capabilities–not because of perceived threats to privacy and other civil liberties at home, but because this path might create strategic problems for US national security down the road, including in the context of nuclear weapons. For Austin, this reassessment should include more scrutiny of permitting one military officer to lead both NSA and US Cyber Command, a situation Austin provocatively describes as “an unprecedented alignment of Praetorian political power in any major democracy in modern political history.”

A unrestrained cyber industrial complex led by a cyber Praetorian guard potentially causing strategic nuclear instability? Well, now, the “national conversation” is getting more interesting by the day . . .

The proposed WMD-free zone in the Middle East – Part One: law of the sea issues

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.

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