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).

Olympic Games turned Blame Games: Responsibility for Abuse of Migrant Workers in Sochi

 Posted by: Swerissen Isabelle

The 2014 Winter Olympics are in full swing. The games, which take place in the Black Sea coastal city of Sochi, should have been a prestige project of huge importance for Russia’s image at home and abroad. Instead, they are turning out to become the most criticized games ever. The controversies surrounding the Sochi games are many: flagrant discrimination against the gay community, forced evictions of homeowners to make way for Olympic venues and infrastructure, environmental destruction of the surrounding land and, of course, the staggering costs of the whole enterprise, totaling an estimated 50 billion dollars. An issue that has received far less media attention is the abuse of migrant workers on whose backs the Olympic sites are built.

The transformation of Sochi from a quiet subtropical resort into a winter sporting paradise required the influx of thousands of workers from Central Asia, the Caucasus and other places. Dozens of these migrant workers were subjected to a range of abuses and exploitation, or so Human Rights Watch (HRW) reports. It claims that “employers cheated workers out of wages, required them to work 12-hour shifts with few days off, and confiscated passport and work permits, apparently to coerce workers to remain in exploitative jobs”. Since a host of different actors was involved in construction activities in and around Sochi, this blog post inquires which of these actors can be held responsible for their part in violating the rights of migrant workers. Let the Blame Games begin!

 

Russia and Olympstroy

The first competitors in the Blames Games are Russia and its state corporation Olympstroy. Olympstroy was created in 2007 to realize the Program of Construction of Olympic venues and infrastructure. According to HRW, it has made “some important public commitments” regarding labor protection on sites falling within the Olympic program and requires contractors engaged in construction activities to respect labor rights. To that end, a department of inspection control was established in 2010 to cooperate with the regional labor inspectorate to monitor adherence to workers’ rights on Olympic sites. Unfortunately, the consistent patterns of abuse listed in the HRW report strongly suggest an inability and/or unwillingness to take all steps necessary to guarantee the rights of migrant workers.

Russia must ensure that its state company Olympstroy does not violate the rights of migrant workers. There are several legally binding instruments relating specifically to the protection of migrant workers, which can be found here, here, here and here. However, Russia has not signed any of these instruments nor can they be said to reflect customary international law. Many of these instruments are part of a comprehensive body of international labour law, developed under the auspices of the International Labour Organization. The latter has identified eight conventions as “fundamental”, containing rights which apply to all human beings at work, irrespective of nationality. Since Russia has ratified all eight of these conventions, it is responsible for violations of the basic protections contained therein.

There are several broader human rights standards that Russia is also obliged to observe. The International Covenant on Economic, Social and Cultural Rights, in Article 7, recognizes “the right of everyone to the enjoyment of just and favourable conditions at work”. In addition, the European Social Charter, which is the social rights instrument of the Council of Europe, also sets out in some detail rights concerning conditions at work. These instruments, which have both been ratified by Russia, are generally applicable to all human beings under Russia’s jurisdiction, without any distinction as to nationality. But as the situation in Sochi has demonstrated, migrant workers nonetheless see their human rights violated, triggering Russia’s responsibility.

 

Private companies

The second competitors are private companies, some of which are subcontractors of Olympstroy. A number of these companies have explicitly recognized to respect human rights, including migrant workers’ rights, or have adopted policies and procedures in that regard. Engeocom Association, the general contractor for the Central Olympic Stadium, has for example stated that it works “in strict adherence to the legislation of the Russian Federation and international legal acts … regulating  protection of migrant workers’ rights”. At the time of the construction, it claimed to undertake regular “inspections of the respect for rights of migrant workers”. Sadly, it was one of the few companies to act in this way, explaining the frequent occurrence of complaints about abuse.

Although Russia carries the primary responsibility to promote and protect the rights of migrant workers, the idea that private companies should also respect those rights and human rights in general is increasingly recognized. This is reflected in the elaboration of various soft law instruments, most notably the Guiding Principles on Business and Human Rights. The Guidelines, which implement the ‘Protect, Respect and Remedy’ Framework, were endorsed by the UN Human Rights Council in 2011 (with Russia interestingly acting as a core sponsor of the resolution). They specify that business enterprises of all sizes must exercise due diligence to identify, prevent, mitigate and account for the impact of their activities on human rights. In case of insufficient due diligence efforts, private entities may be responsible for failing to respect migrant workers’ rights.

The Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises are also relevant, since some of the companies engaged in construction activities were registered abroad (e.g. Botta Management Group in Switzerland, STRABAG in Austria). The Guidelines, which are recommendations jointly addressed by governments to multinational enterprises, call on such enterprises to “respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved”, including by carrying out “human rights due diligence”. Depending on the steps taken to prevent adverse impacts on the rights of migrant workers, multinational companies can possibly incur responsibility.

 

International Olympic Committee

The third and final competitor is the International Olympic Committee (IOC), which is “the supreme authority of the Olympic Movement”. As such, it includes promoting the Olympic ideal of “preservation of human dignity” among its goals. And yet, the IOC has not always seen a clear role for itself in addressing human rights issues in the context of or during Olympic Games. This changed after the controversial 2008 Summer Olympics in Beijing, when the IOC elaborated on its objective to preserve human dignity by including a commitment to intervene at the level of the host country’s National Olympic Committee in the event of serious abuse, such as “abuse of migrant workers at Olympic venue construction sites”. Alas, this was not enough to keep such abuses from happening again in Sochi.

The IOC, thanks to relentless efforts by HRW, was well informed of the abusive treatment of migrant workers. In fact, HRW first raised its concerns as early as 2008. The IOC responded by contacting the Sochi 2014 Organizing Committee for further information regarding the alleged abuses. It wasn’t until February 2014, after “an investigation of more than 500 companies”, that the IOC finally pressed the Russian authorities to investigate persistent claims of non-payment of wages to migrant workers. This is probably the most that can be expected in terms of IOC action on the matter. In any case, its legal status as an NGO and the fact that it was several layers removed from what happened on the ground, make it unlikely that the IOC itself will be held responsible for violations of the rights of migrant workers.

 

And the winner is…

In this blog post, I’ve discussed the various actors that may be held responsible for their role in violating the rights of migrant workers in the run-up to the Olympic Games in Sochi. The enormous scale of the games has made it clear that no actor can alone attempt to realize their organization. Russia, its state company Olympstroy, several subcontractors, many other businesses, and of course the IOC were all, to a greater or lesser extent, involved in construction activities and thus had a part in the labor rights´ violations that built Sochi – quite literally. If medals were awarded for the greatest blame in those violations, Russia would most likely be the winner. However, when it comes to migrants working in abusive and exploitative conditions, there really are no winners, only losers.

Sharing Risks, Sharing Liability: Environmental and Health Risks of the Destruction of Syrian Chemical Weapons

 Posted by: Nollkaemper André

On 11 October 2013, the UN Security Council authorised the establishment of a Joint Mission of the Organisation for the Prohibition of Chemical Weapons (OPCW) and the United Nations (UN) to oversee the destruction of Syria’s chemical weapons. The Council endorsed the proposal formulated by Ban Ki-moon in a letter to the Council of 7 October (S/2013/591), pursuant to a request by the Security Council in Resolution 2118 (2013).

While all attention now focusses on the completion of the Joint Mission’s goal (the elimination of Syrian chemical weapons), it is not too early to plan for contingencies. The destruction of the chemical weapons will entail significant risks for the environment and human health. These risks will arise in particular in the third phase of the Mission. As outlined in Ban Ki-moon’s letter of 7 October, from 1 November 2013 to 30 June 2014, the Joint Mission is envisaged to support, monitor and verify the destruction of a complex chemical weapons programme involving multiple sites spread over Syria which by then is likely to be still engulfed in violent conflict. This involves approximately 1,000 metric tons of chemical weapons, agents and precursors that are dangerous to handle, transport and to destroy.

Even in normal situations, destruction of chemical weapons is a high-risk undertaking. The OPCW is mindful of environmental and health risks of such destruction, see for instance here. In Syria the risks surely are higher than normal. The time period is shorter than what otherwise would be allowed under the Convention, and the context will be incomparably less secure than any other instance in which chemical weapons have been destroyed. As Ban Ki-moon wrote in his letter of 7 October, ‘During phase III, the OPCW/United Nations Joint Mission will seek to conduct an operation the likes of which, quite simply, has never been tried before.’ He recognised that ‘In the extant circumstances, the pressures associated with the destruction timelines will not only enhance operational and security risks, but also potential public health and environmental risks.’

In this situation, it has to be considered what will be the legal consequences when things do not go according to plan, and harm to human health or the environment results. In particular, who would be liable (a term more appropriate here than responsibility, in view of the fact that major harm could be caused even if no wrongful act may be committed under international law) for such harm?

The Chemical Weapons Convention does not include a provision on liability for harm resulting from the destruction of chemical weapons. But it seems clear that if a state destroys its chemicals weapons and harm to public health or the environment occurs, it is exclusively that state (and not, for instance, the OPCW) that would be confronted with any legal consequences of such harm. Depending on the circumstances, the state may then be responsible towards other state parties (for instance if it failed to set or enforce proper standards as required by the Convention), or towards injured individuals (possibly under human rights law, if no proper precautions were taken). It also may be liable for environmental harm – though it is not obvious that such liability will arise under international law, unless transboundary effects occur.

In the case of Syria, a different outcome seems justified. While much will depend on the circumstances in which harm may occur, it is a compelling proposition that it should not necessarily be only Syria that has to face the legal consequences of such harm.

This proposition can be grounded on the fact that the OPCW Executive Council and the Security Council have pushed Syria (respectively in a decision of the OPCW Executive Council of 27 September, and in Security Council Resolution 2118 which endorses this decision) to engage in the destruction of chemical weapons in a time-frame that is shorter than what is prescribed by the Convention, and that would have to occur in a volatile situation in which no other state would ever think of engaging in such high risk activities.

In the published documents there is nothing to suggest that the OPCW and/or the UN would assume (co-)liability if things would go wrong. The proposal by the UN Secretary-General that is now endorsed by the Security Council maintains that ‘all destruction of chemical weapons facilities, stocks and associated material is the responsibility of the Government of the Syrian Arab Republic. Neither OPCW nor the United Nations is mandated to conduct actual destruction activities’. The suggestion appears to be that, as in normal times of peace, only the state actually carrying out the destruction will be liable if things go wrong.

In view of the role of the OPCW Executive Council and the UN Security Council in the process that Syria is now embarking on, as a general proposition this outcome seems unreasonable. Pushing a state into actions that in all other situations would be considered unsuitable, even if the aim is a noble one, should come with some responsibility if things go wrong.

Such a potential (co-)liability does not obviously flow from existing rules of international law. In the case of environmental harm it may be doubtful whether an obligation binding on the OPCW or the UN can be identified that would allow for a construction of a wrongful act. Moreover, the conditions of the principles on responsibility of international organisations adopted by the International Law Commission, in particular those pertaining to aid or assistance, direction and control, coercion, and circumvention (Articles 14-17) appear to be set too high to be relevant here. In any case they are unhelpful in situations where the problem appears more one of engaging in high-risk activities than of wilful commission of wrongs.

In fact, the proper ground of liability for environmental harm or harm to human health may not so much lie in the law of international responsibility for wrongful acts, but rather in the notion of liability for harm arising out of hazardous activities. The principles that the ILC drafted on this topic only apply to states, and surely there is insufficient practice to warrant the development of similar rules for international organisations. But in particular situations, the principle that an actor that creates a risk of harm by engaging in a hazardous activity should bear (part of) the loss is a sound starting point. Other than with states, for international organisations there is no reason to limit such a principle to transboundary situations. Nor is there any ground to shift liability to private operators. Liability is to be taken by those who contribute significantly to the risk – in this case a combination of Syria, the UN and the OPCW.

While thus neither the principles on responsibility for wrongdoing nor those on liability for creation of risks would easily support a (co)liability of international organisations, the question is whether the UN and the OPCW should profit from gaps in international law, so as to enable them to leaving it to Syria alone to face the consequences of risks that the UN and the OPCW, jointly with Syria, have created. A lesson from the fate of recent liability claims against the UN, for instance in the case of Haiti or Srebrenica, is that it is not necessarily a recommendable strategy for the UN (and the same would hold for the OPCW) to exploit all legal avenues so as to secure that others have to deal with the legal consequences of events in which the UN had a decisive role. While we have to come to accept that for states it is normal to seek gaps in the law to prevent claims, from the UN something more is to be expected.

Three additional points should be noted. First, the question can be asked whether there also may be a potential co-liability of the UN and the OPCW as a result of the acts of the Joint Mission itself. This appears unlikely. While the Joint Mission will play a critical role in guiding and overseeing the destruction, it is not easy to envisage a situation where environmental harm or harm to human health results from the acts of the Joint Mission itself. Theoretically interesting questions about the relationship between the jointness of the mission, and the shared nature of liability between the OPCW and the UN for conduct or omissions of the mission, are unlikely to become practically relevant (though it is not excluded that they arise).

Second, it may be said that the OPCW Council (and the Security Council afterwards) only have rubber stamped what the United States and the Russian Federation had agreed beforehand, and that any liability for high risks should be borne (also) by those states, rather than by the OPCW and the UN alone. As a matter of international law that argument is not an easy one, however. It certainly is not supported by the ILC Articles on the responsibility of international organisations. Again, the standards of the relevant Articles here (Articles 58-61) are high and not really applicable to what in essence is a situation of the creation of risks. It also can be said that the role of the United States and Russia was overtaken by later collective decisions in the Executive Council and the Security Council.

Third, it may be argued that any liability for the UN and the OPCW would not be appropriate should be rejected since it was Syria itself that has created the problem in the first place. The argument that for this reason is would be only for Syria to face the consequences is not compelling, however. The mere possession of chemical weapons by Syria was not a wrong. Its accession to the Convention would normally have given Syria a more flexible time period for destruction, were it not for the intervention by the OPCW Executive Council and the Security Council. The illegality of the use of the gas does not affect any questions of liability for destruction of the weapons.

In conclusion, then, it would seem a sound position that in the event that human health or environmental harm would occur, the UN and the OPCW should not leave all questions of liability to Syria. Given that the rules of international law as laid down in the ILC Articles on the responsibility of international organisations are unlikely to be of much help in construing a shared responsibility in the event that harm would occur, and in view of the absence of established principle on liability of international organisations, the sensible thing to do it to make proper arrangements in advance. One option may be to include this in the tripartite status-of-mission agreement between the UN, the OPCW and the Government of the Syrian Arab Republic, but there will be other options. It is not too late to make arrangements for a shared responsibility in the case of harm that reflects the unique shared nature of this operation.