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Home Archive for category "Arms Control"

The Use of Cluster Munitions by Saudi Arabia in Yemen and the Responsibility of the United Kingdom

Published on March 7, 2017        Author: 

In December 2016, after repeated denials, Ahmed Asiri, a spokesman for the Saudi-led coalition fighting in Yemen, said: ‘It has become apparent that there was limited use by the coalition of the UK-manufactured BL755 cluster munition in Yemen’. This admission opened up questions about the United Kingdom’s potential responsibility for the use of cluster munitions by the Kingdom of Saudi Arabia. Britain’s Defence Secretary Michael Fallon informed the Commons that the munitions used by Saudi Arabia had been delivered in the 1980s, well in advance of the entry into force for the United Kingdom of the Convention on Cluster Munitions (‘the Convention’) on 1 November 2010. The treaty was implemented through the Cluster Munitions (Prohibitions) Act 2010 (‘the Act’).

 A judicial review of the granting of export licences to Saudi Arabia is currently taking place in the English High Court, following an application by the Campaign Against the Arms Trade (see here). The application focuses on export licences for weapons in general, and follows allegations of violations of international humanitarian law by Saudi Arabia, including, but not limited, its use of cluster munitions.

In this post, I focus on the specific responsibility of the UK arising under the Convention on Cluster Munitions for the use by Saudi Arabia of UK-provided aircraft, and support by British personnel.

The post addresses three issues: first, whether issuing export licences for aircraft to Saudi Arabia can be construed as a breach of Article 1(c) of the Convention; second, whether the exception on interoperability in Article 21 of the Convention covers the acts by the UK in respect to the use of cluster munitions by Saudi Arabia; and third, whether the UK’s responsibility could also arise also under Article 16 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (‘the 2001 Articles’). Read the rest of this entry…

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Due Diligence Obligation in Times of Crisis: A Reflection by the Example of International Arms Transfers

Published on March 1, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

In this blog post, I would like to take up a question that I discussed at the ESIL Human Rights Interest Group in Riga and analyze whether the due diligence obligation under international human rights law (IHRL) plays a role in the regulation of crisis in order to prevent or mitigate state action that has a negative impact on human rights, and what role that might be.

In doing so, I will use the debate emerging in the wake of the ongoing ‘crisis’ in the Middle East on international arms transfers by foreign governments, for instance, to the Syrian rebels or the Kurdish forces in Northern Iraq, to support the fight against IS. International arms transfers in the form of emergency military aid has drawn into the limelight the issue as to whether the recipients of the supplied arms would be able to control them or if these weapons may fall into the hands of non-intended end-users, such as private parties, likely be used to commit human rights violations on the recipient’s territory (which is what in fact happened, see here or here).

The Problématique: Attribution of Conduct

As a general principle, the acts of non-state actors fall out of the scope of the rules of state responsibility, unless they are acting under the direction or control of a state (see Article 8 of the ILC Draft Articles on State Responsibility). Crisis-related scenarios are especially characterized in a way that human rights abuses occur either due to a general situation where the wrongful conduct in question is not identifiable (e.g. in armed conflicts, natural disasters or disease outbreaks) or where acts of non-state actors are not attributable to a state due to lack of control. This might be the case in armed conflicts where third states do not engage in direct attacks but are interfering indirectly by means of state assistance (e.g. military aid in the form of arms transfers). Read the rest of this entry…

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Whose Security is it Anyway? Towards a Treaty Prohibition of Nuclear Weapons

Published on May 31, 2016        Author: 

On Friday, 13 May 2016, the UN’s Open Ended Working Group (OEWG), convened pursuant to UNGA resolution 70/33 (7 Dec 2015) and mandated, inter alia, to “substantively address concrete effective legal measures, legal provisions and norms that would need to be concluded to attain and maintain a world without nuclear weapons”, closed its second session with a majority of states calling for negotiations of a legally binding instrument (or instruments) to prohibit nuclear weapons to start in 2017.

Although (or perhaps because) the nuclear-armed states have chosen not to play ball, for the first time in decades, a treaty outlawing nuclear weapons is a real possibility. The OEWG, which will meet for a third time in August to agree on recommendations to the UNGA, and the ensuing tug-of-war in the UNGA’s First Committee in October, offer an historic opportunity for multilateral nuclear disarmament negotiations to take a big step forward. The reframing of nuclear disarmament as a humanitarian concern has been instrumental in generating strong momentum in support of negotiations. This post surveys some of the legal controversies that arose during the OEWG and explains why, from a humanitarian disarmament perspective, a treaty prohibition of nuclear weapons is both imperative and an effective disarmament measure, even without the participation of the nuclear-armed states.

Open to all, the OEWG’s May session has been attended by 100 states, as well as international organizations and civil society representatives, including survivors of the atomic bombings. None of the nuclear-armed states, i.e. the Nuclear Weapon States (NWS) recognized under the 1968 Nuclear Non-Proliferation Treaty (NPT) –China, France, Russia, the UK and the US – nor the DPRK, India, Israel or Pakistan, participated, casting further doubt on the good faith performance of nuclear disarmament obligations by the respondents in the RMI cases pending before the ICJ.

There is general agreement that the ultimate objective is a world free of nuclear weapons. To that end, all states parties to the NPT (and arguably, all states) have a legal duty to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament” pursuant to Art. VI, NPT and customary international law. Views diverge, however, on the pathways, means and urgency with which this goal should be attained. Read the rest of this entry…

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“Are you smarter than Professor Hawking?” Higher Forces and Gut-Feelings in the Debate on Lethal Autonomous Weapons Systems

Published on April 27, 2016        Author: 

“Professor Hawking says that artificial intelligence without control may cause the extinction of the human race”, noted a Chinese delegate following a session on ‘mapping autonomy’ at the Convention on Conventional Weapons (CCW) meeting of experts which took place from 11-15 April 2016 at the United Nations in Geneva. The CCW convened its third meeting of experts to continue discussions on questions related to emerging technologies in the area of lethal autonomous weapons systems (LAWS) and I had the privilege of participating.

LAWS are most often described as weapons that are capable of selecting and attacking targets without human intervention; one of the key questions addressed at the meeting was what exactly this means. According to most of the commentators present at the meeting, LAWS do not yet exist however, the possibility of using autonomous weapons in targeting decisions raises multidisciplinary questions that touch upon moral and ethical, legal, policy, security and technical issues. The meeting addressed all of these, starting with the technical session aimed at mapping autonomy.

Without expressing their position on a ban, the six technical experts on the panel presented a nuanced view of the state of current autonomous weapons technology and the road that lies ahead. The Chinese were one of the first delegations to respond to the panel and the delegate seemed startled; some of what was said seemed to contradict the conclusions reached by Professor Hawking et al. China read the Open Letter issued by the Future of Life Institute (FLI) and signed by thousands of artificial intelligence (AI) and robotics researchers, as well as by a number of other endorsers including the well-known Professor Stephen Hawking. The Open Letter calls for a ban on offensive autonomous weapons beyond meaningful human control, claiming that these weapons would be feasible within years, not decades. The Open Letter attracted a good deal of attention, largely because it is signed by a number of well-regarded figures including, Tesla CEO Elon Musk, Apple co-founder Steve Wozniak and as previously mentioned, Professor Stephen Hawking.

The expert panelists offered some divergent views on the claims and predictions made in the Open Letter. In response to these, China asked the panelists “do you think you are smarter than Professor Hawking?” A number of delegates, academics, NGO members and panelists seemed quite amused by the provocative question posed by China. Who dares to disagree with Hawking? Fortunately, some of the experts did. “Isn’t Hawking a physicist, and not an AI expert?”, asked one panelist. Another expert confidently said, “Yes, I am smarter than Stephen Hawking.” Why? “Because, like Plato, I know that I do not know.” The debate is amusing, but also a little bit troublesome. What is the effect of well-regarded figures on the discourse about autonomous weapon systems? Read the rest of this entry…

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Filed under: Arms Control, EJIL Analysis
 

Corbyn, Trident, and the Letter of Last Resort: Legality of Use of Nuclear Weapons

Published on October 6, 2015        Author: 

Jeremy Corbyn’s election to the leadership of the Labour Party in the United Kingdom by a landslide victory last month has renewed discussions in the UK about the ‘nuclear deterrent’. Corbyn, a long time anti-war activist and Vice-Chair of the Campaign for Nuclear Disarmament (CND) has, for many years, taken a very public and unequivocal stance against the use of nuclear weapons and in favour of scrapping the UK’s Trident nuclear weapons system. The Trident system is composed of submarine-launched ballistic missiles carried by four Vanguard-class submarines: HMS Vanguard, HMS Victorious, HMS Vigilant, and HMS Vengeance. One of those submarines is constantly on patrol somewhere around the globe. During the recent Labour Party conference, the party failed to take a position in favour of scrapping Trident, but its leader clearly and unequivocally stated that should he become Prime Minister of the UK, he would not use nuclear weapons. For this he was criticized both from within his own party, and beyond, as his statement would mean that were he to become Prime Minister, the UK would have effectively given up the possibility of any deterrent value of its nuclear arsenal.

It might be thought that even if Corbyn were to become Prime Minister the circumstances in which he would have to make a call as to whether to use nuclear weapons are very remote. Far from it! Each new Prime Minister of the UK must decide on the use of nuclear weapons in his or her first few days in office! This is when each new UK Prime Minister must draft the so-called ‘Letter of Last Resort’. This letter contains an instruction from the Prime Minister (indeed the final instruction) to the commanders of the Royal Navy submarines carrying the Trident system. The letter sets out what the commander is to do in case Britain has suffered a nuclear attack that has effectively destroyed the British state, resulted in the death of the Prime Minister and his or her nominated deputies, and led to a loss of contact between the submarine and the UK. There are a number of checks that must be carried out before the commander can presume that the UK has been attacked so devastatingly that nothing of the state and the chain of command remains. Apparently, one of those checks is to establish that BBC Radio 4 is no longer broadcasting! At that stage, the commander of the submarine is to obtain and fulfill the order stated in the letter of last resort, which is kept in the ship’s safe. No letter of last resort has been published. Each one is destroyed when a new PM takes office and issues a new letter of last resort. However, we do have some idea of the options available to the PM, which range from ‘scuttle the ship’, to ‘find and join the US or Australian Navy’, ‘retaliate’ or perhaps even ‘use your judgement’. (For a serious discussion of the Letter, listen to this BBC Radio 4 programme, for a more humorous discussion of the nuclear deterrent, watch this) .

Presumably, Corbyn’s letter of last resort will not involve a command to use the nuclear weapons aboard the vessel. However, it is interesting to consider whether an order to retaliate, in the circumstances in which a letter of last resort is actually opened, would be legal under public international law. To be sure, if such horrendous circumstances were to occur, we would be right at the vanishing point of the utility of law. Indeed, law, as well as other frameworks for organizing human society, would have failed us. However, thinking about whether a use of nuclear weapons (indeed any use of force) would be lawful in those circumstances helps us to understand what we think the purpose of the right of self-defence is, and how it ought to operate in international law. Read the rest of this entry…

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Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…

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Security Council Resolution 2231 and the Joint Comprehensive Plan of Action on Iran’s Nuclear Program

Published on July 27, 2015        Author: 

Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.

The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.

I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.

The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations.  And so I compliment all of the diplomats and lawyers involved. Read the rest of this entry…

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Lethal Automated Robotic Systems and Automation Bias

Published on June 11, 2015        Author: 

Lethal Autonomous Robotic Systems (LARS) are machines that are capable of initiating a lethal attack on individuals or other targets. Based on its programming, a LARS can determine whether an individual is a valid target and whether engaging that target is a proportional action, and act upon its own assessment. Such sophisticated systems have long been in the realm of science fiction, but today they are not only a possibility, but a reality. For example, Samsung has developed the SGR-A1, which is currently deployed in the Korean demilitarised zone. Although, for now, that device leaves the final decision to engage to a human.

The debate on the use of such systems is heating up (see for instance the various reports by Human Rights Watch, the Oxford Martin Policy Paper, or discussions on the topic in relation to the CCW). These systems have been criticised from moral, political and legal perspectives. Leaving aside the moral and political objections, the development of a LARS is extremely problematic from the perspective of international humanitarian law. In particular, questions have been raised about the ability of such systems to make distinctions between civilians and combatants, as well as computing the proportionality of an attack. Furthermore, there are complex responsibility questions that are as yet not fully answered.

In response to these problems, the US has issued a directive that all robotic systems of this type will in fact not be operated in a fully autonomous mode, but will always function with a ‘human in the loop’. This statement is apparently intended to undermine at least the legal, and possibly the other criticisms relating to the deployment of LARS.

Human in the loop

It could be argued, however, that the deployment of a LARS with a human in the loop is just as problematic as a fully automated version. While the decision to engage a target will always be overseen by a human being, I will argue that it is not a given that this will in fact influence the functioning of the system sufficiently to adequately safeguard against the problems associated with the fully automated settings.

Firstly, the term ‘human in the loop’ is not very specific. There are a variety of ways in which a system can operate with a human in the loop. Read the rest of this entry…

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The Budapest Memorandum and Beyond: Have the Western Parties Breached a Legal Obligation?

Published on February 18, 2015        Author: 

Angela Merkel, Chancellor of Germany, brought renewed attention at the Munich Security Conference this month to the Budapest Memorandum, an instrument adopted some twenty years ago by Ukraine, the Russian Federation, the United Kingdom and the United States.  The Chancellor said that the Russian Federation, by invading eastern Ukraine and annexing Crimea, “has broken its commitment to the Budapest Memorandum.”  Merkel asked, “Who would give up their nuclear capability if their territorial integrity were not respected?”

The Budapest Memorandum, or to give its long form title, Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), was adopted in connection with Ukraine’s agreement at the time to relinquish the nuclear weapons in its territory, these having formed a substantial part of the arsenal of the former USSR.  In its Declaration at time of accession to the NPT, Ukraine further stated that “[t]he threat or use of force against the territorial integrity and inviolability of borders or political independence of Ukraine from a nuclear power… will be considered by Ukraine as exceptional circumstances which jeopardize its interests.”  The Russian Federation in 2014/2015 clearly is in breach of the terms of the Budapest Memorandum.  The Russian Federation, under paragraph 1, “reaffirm[ed]” its commitment “to respect the independence and sovereignty and the existing borders of Ukraine.”  Even if crediting the Russian Federation’s arguments for use of force against Ukraine, forced annexations and separations of territory constitute breach, and of a serious character—points further addressed in my forthcoming book, Aggression against Ukraine: Territory, Responsibility and International Law. Read the rest of this entry…

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The ECJ and (Mis)interpretation of Security Council Resolutions: The Case of Sanctions Against Iran

Published on December 23, 2013        Author: 

On 28 November 2013, the ECJ set aside the judgment of the General Court of the EU in case T‑509/10, Manufacturing Support & Procurement Kala Naft v Council, which had annulled, in so far as they concerned the applicant (an Iranian company owned by the National Iranian Oil Company), the various EU restrictive measures targeting persons and entities listed as being engaged in nuclear proliferation (including Council Decision 2010/413/CFSP). However, in my view, the ECJ was wrong in considering that the UNSC Resolution 1929 (2010) provided a basis for the challenged EU measures as the Court wrongly interpreted the SC resolution as enabling the European Council to conclude that trading in key equipment and technology for the gas and oil industry was ‘capable of being regarded as support for the nuclear activities of [Iran]’.

In its judgment, the ECJ, recalls that the effectiveness of judicial review requires that the Courts of the EU are to ensure that the decision challenged ‘is taken on a sufficiently solid factual basis’ (at para. 73), and observes that in order to assess the lawfulness of the General Court’s review of the measures, it shall examine ‘the way in which the General Court identified and interpreted the general rules of the relevant legislation’ (para. 74). The ECJ held that “there is nothing in the judgment under appeal to indicate that the General Court took into account the changes in European Union legislation after Security Council Resolution 1929 (2010) (para. 75, emphasis mine). Read the rest of this entry…

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