A shared obligation to negotiate (and achieve?) nuclear disarmament

 Posted by: Nedeski Nataša

Every year since the International Court of Justice’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the UN General Assembly has adopted by a large majority a follow-up resolution. Each resolution reiterates that ‘the continuing existence of nuclear weapons poses a threat to humanity and all life on Earth’, and underlines ‘the unanimous conclusion of the International Court of Justice that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control’. The ICJ derived this obligation from Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which provides that

[e]ach of the Parties to the Treaty undertakes 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, and on a treaty on general and complete disarmament under strict and effective international control.

On 24 April 2014 the Republic of the Marshall Islands (RMI) instituted legal proceedings before the ICJ against nine nuclear weapons possessing states: France, India, Pakistan, the United Kingdom, the United States, Israel, China, Russia and North Korea. The Application states that their failure to pursue and conclude negotiations leading to complete nuclear disarmament amounts to a continuing breach of the obligations enshrined in Article VI NPT (to which five of these states are parties), as well as of identical obligations that exist separately under customary international law. Only Pakistan, the UK and India have accepted the compulsory jurisdiction of the ICJ (albeit with several reservations); the remaining six states have been requested to accept the jurisdiction of the Court.

Assuming that the potential barriers to jurisdiction and admissibility would be overcome, the initiation of these proceedings calls for some reflection on the substantive content of the shared obligation(s) arising from Article VI NPT (and, if they indeed exist, identical obligations under customary international law). As the total elimination of nuclear weapons cannot be achieved by any state in isolation, Article VI NPT requires all states parties to take part in overall disarmament efforts. But while it is clear that nuclear disarmament is a goal that can only be achieved through the combined action of all states, it remains uncertain what action is legally required of them. There exist a variety of conflicting views as to ‘what state behaviour is required to meet the nuclear disarmament obligation’.[1] Arguably, this lack of clarity has contributed to the overall failure of nuclear weapon states to take concrete steps towards the common goal of nuclear disarmament.

It has been argued that Article VI NPT ‘merely’ gives rise to an obligation to negotiate in good faith – a pactum de negotiando – which obliges individual duty-bearers to make a genuine effort towards coming to an agreement, but ‘does not imply an obligation to reach an agreement’.[2] However, in its Nuclear Weapons Advisory Opinion the ICJ has held that the legal import of Article VI NPT ‘goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith’[3]. It subsequently qualified Article VI NPT as giving rise to ‘a two-fold obligation to pursue and conclude negotiations’.[4] These passages have been used to support the argument that Article VI NPT gives rise to a pactum de contrahendo – an obligation of states parties to conclude an international agreement on complete nuclear disarmament.

The difference between these two interpretations of Article VI NPT is far from negligible. An obligation to negotiate in good faith is generally considered to be an obligation of conduct, which entails that each duty-bearer can independently fulfil or breach its obligation by conducting or failing to conduct negotiations in good faith. It would be perfectly possible for one duty-bearer to fulfil its obligation by negotiating in good faith whereas another breaches its obligation by failing to do so (though how a state may demonstrate good faith will of course be up for discussion). In the end, whether or not negotiations bring about a certain result does not have a necessary bearing on the fulfilment (or breach) of the obligation to negotiate.

This seems to be different when it comes to the obligation to conclude negotiations and achieve the result of ‘nuclear disarmament in all its aspects’. If Article VI NPT indeed requires the achievement of such a result, the duty-bearers of this obligation will be highly dependent upon one another when it comes to complying with this requirement. The desired result of complete nuclear disarmament, whether or not through the conclusion of a multilateral treaty, cannot be brought about by a duty-bearer on its own; regardless of the amount of effort it puts in or the extent of good faith it displays (for example by unilaterally declaring that it will dispose of its entire nuclear arsenal). This would entail that the obligation cannot be fulfilled by any duty-bearer as long as the result of total nuclear disarmament has not been achieved. At the same time, it is not clear when this obligation would be breached, as no definitive timeframe has been set out within which negotiations should be concluded and/or complete nuclear disarmament should be achieved. Should a breach nevertheless be established, the question arises whether this would automatically result in shared responsibility for all duty-bearers.

The proceedings instituted by the RMI may provide the ICJ with an opportunity to clarify the substantive content of Article VI NPT. At first sight, the ICJ’s pronouncements in its Nuclear Weapons Advisory Opinion seem to support the argument that Article VI NPT gives rise to an obligation that goes beyond a ‘mere’ obligation to negotiate. But how far does that obligation go? Does it really require that the result of complete nuclear disarmament is achieved before duty-bearers can fulfil the obligation, regardless of the result achieved by each duty-bearer individually? Should nuclear disarmament necessarily be achieved through the conclusion of a multilateral treaty? And would a breach of the obligation to achieve nuclear disarmament entail that both nuclear weapon states and non-nuclear weapon states would share the resulting responsibility?

In the midst of these uncertainties, what does seem evident is that progress towards nuclear disarmament is occurring at a disturbingly slow pace. A clarification of what it is that states must do in order to comply with their legal obligations will make it more difficult to justify their inaction; hopefully bringing us one step closer to the collective goal of nuclear disarmament.

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[1] Legal Memorandum by the International Association of Lawyers Against Nuclear Arms and the International Human Rights Clinic Human Rights Program, Harvard Law School, Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons: Request for an Advisory Opinion from the International Court of Justice (International Human Rights Clinic Human Rights Program, Harvard Law School, Cambridge, 2009) at 4. Available at http://www.un.org/disarmament/education/docs/goodfaithnegs.pdf.

[2] Railway Traffic Between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J. Series A/B No. 42, p. 108, at p. 116.

[3] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at para. 99 (emphasis added).

[4] Ibid., at para. 100 (emphasis added).

Facilitating drone strikes: sharing responsibility for sharing intelligence

 Posted by: Nedeski Nataša

The exchange of information between Dutch intelligence services and the United States National Security Agency (NSA) is no longer taking place entirely outside the public eye. After a graph published in German news magazine Der Spiegel in August 2013 initially seemed to suggest that the NSA had intercepted 1.8 million records of metadata from Dutch phone calls in the period of December 2012 to January 2013, it became clear this February that Dutch intelligence services had gathered these records themselves, and had subsequently shared them with the NSA. This information consisted of metadata records gathered in the context of anti-terrorism and military operations abroad.

A substantial share of Dutch intelligence efforts is directed towards Somalia, and millions of Somali phone calls have been intercepted from both the Dutch town of Burum and Dutch navy ship HMS Rotterdam. The Netherlands has been collecting this information in order to support the Dutch contribution to the navy missions combating piracy in the Gulf of Aden. The (meta)data is shared with the NSA (who do not have access to Somali telephone traffic) and in return the US has provided the Netherlands with technical support needed to intercept local telephone traffic from the HMS Rotterdam.[1]

But it appears that the US has been using this data for a different purpose. Since 2011 the US has been carrying out drone strikes in Somalia in the context of its war against terrorism, and on 8 March 2014 Dutch newspaper NRC Handelsblad revealed that it is likely that the United States is using Dutch data to support drone strike operations on (alleged) members of Al-Shahaab in Somalia. NRC Handelsblad bases this assertion on several Dutch and US documents made public by NSA whistleblower Edward Snowden, and reports that the Dutch Ministry of Defence cannot exclude that the metadata shared with the US is used in order to facilitate such targeted killings.

According to research done by The Intercept metadata play a crucial role in US targeted killings. This places the Netherlands in a tedious position, as the legality of targeted killing by drone strikes remains highly controversial. Assuming that these attacks can at least in some circumstances be qualified as breaches of international law, the Netherlands could be contributing to internationally wrongful acts committed by the US. And it is in good company: the United Kingdom, Germany and Australia have all been accused of involvement in US drone strikes through intelligence-sharing.

A variety of actors appears to be involved in the US’ wrongful acts, including not only states but also individuals. The question that inevitably arises is the following: can these international actors be held internationally responsible for sharing intelligence that facilitates the commission of wrongful acts by the US?

State responsibility for aid or assistance

The obvious place to start in answering this question would be article 16 of the ILC Articles on State Responsibility, which provides that a State can be held internationally responsible when it aids or assists another State in the commission of an internationally wrongful act. When applied to our scenario, it needs to be established that the conduct in question would be internationally wrongful, if it were to be committed by the Netherlands. It is indeed arguable that this would be the case. Moreover, the Netherlands must have had knowledge of the circumstances of the wrongful act. While it is unclear whether the Netherlands was initially aware of the fact that their intelligence might be used to facilitate US drone strikes, it should surely know now (which is relevant as long as the Dutch keep sharing intelligence).

However, it may prove to be more difficult to meet the requirements mentioned in the ILC’s commentaries, which clarify that knowledge is not enough; the Netherlands should have intended to facilitate the US drone strikes in Somalia.[2] Establishing a State’s intent remains a daunting task, which becomes even more difficult in situations that are characterised by such a remarkable lack of transparency.

Moreover, it is not entirely clear what threshold aid or assistance should reach in order to result in responsibility. The ILC’s commentaries at one point state that the aid or assistance should have ‘contributed significantly to the act’, but at another point assert that it ‘may have been only an incidental factor in the commission of the primary act’.[3] In any case, chances are that the extent in which Dutch intelligence has facilitated US drone strikes will remain uncertain. The Dutch Ministry of Defence has stated that revealing the extent in which intelligence contributes to a specific mission would reveal the mode of operation of Dutch intelligence services, which it cannot do as this would endanger both the operation and the lives of soldiers.

Individual criminal responsibility for complicity in war crimes

NGOs Reprieve and the Foundation for Fundamental Rights (FFR) have chosen to address this question from a different angle. On 19 February 2014 they submitted a communication to the International Criminal Court (ICC), requesting the Prosecutor to investigate the role of the UK, Germany, Australia and other NATO allies in US drone strikes in Pakistan. One commentator has already pointed out the difficulties that might arise in establishing the ICC’s jurisdiction.

While the US and Pakistan are not parties to the Rome Statute, the communication argues that the ICC has jurisdiction because a) the drone strikes are launched from Afghanistan, which is a party to the Rome Statute, and b) nationals of the UK, Germany and Australia (which are all parties to the Rome Statute) are potentially facilitating these drone strikes through intelligence sharing. Reprieve and FFR would like to see these individuals be held criminally responsible by the ICC for their complicity in US war crimes. Though there seems to be far less information available on US drone attacks in Somalia, theoretically speaking a similar argument could be made regarding the role of Dutch nationals in targeted killings on Somali territory.

But even though the practice of intelligence sharing gives rise to a variety of potential shared responsibility scenarios, there is one main problem that stands in the way of determining responsibility: the complete lack of transparency surrounding drone strikes and intelligence sharing. It appears that there is currently no international obligation that would require states to disclose such information. Unfortunately, this will more often than not entail that rather than establishing shared responsibility, we are simply left with no responsibility.

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[1] See NRC, ‘The secret role of the Dutch in the American war on terror’, by Steven Derix and Huib Modderkolk, available at http://www.nrc.nl/nieuws/2014/03/05/the-secret-role-of-the-dutch-in-the-american-war-on-terror/.

[2] International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 (A/56/10), at 66, para. 5

[3] Ibid.; also p. 67, para. 10.