The strange case of the extra comma

 

(Commas are important. And box two contains a chameleon; do keep up at the back.)

Grammar? Oh dear.

At the risk of dredging up bad memories for an entire generation, (myself included), I'm sorry to confirm that our 4th-grade teachers were correct: grammar matters. And it is especially important to lawyers when it comes to interpreting legislation and Treaties. For international law, the sacred text in interpreting treaties is itself a Treaty - the 1969 Vienna Convention on the Law of Treaties (VCLT) which came into force in 1980.

The grammatical challenge du jour is with the 1968 Nuclear Non-Proliferation Treaty (NPT). NPT Article VI reads:

"Each 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."

This is a very long sentence. With a single comma.

It could be interpreted in a couple of ways:

First, it could mean that State Parties are are obliged to pursue good faith negotiations on ceasing the nuclear arms race, and nuclear disarmament as well as pursing a treaty on general disarmament under strict and effective international controls.

Second, it could mean that the State Parties are obliged to pursue good faith negotiations on ceasing the nuclear arms race, and nuclear disarmament within the context of a treaty on general disarmament under strict and effective international controls;

Grammatically, the first interpretation makes more sense than the second, because the comma separates the first clause

"negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament,"

from the second

"and on a treaty on general and complete disarmament under strict and effective international control"

making it clear that the two are separate notions.

This construction would mean that the Nuclear Weapons States (NWS) were obliged to disarm independent of a treaty on general disarmament. Under this understanding, it would hard to argue that spending £30bn - £100bn between now and 2042 on a replacement for Trident would qualify as "nuclear disarmament", and that as such, such a purchase would be in direct contravention to the UK's international obligations, and would therefore be illegal as a matter of British law.

Unsurprisingly, perhaps, the UK Government favours the second interpretation, tying as it does nuclear disarmament to a future treaty on "general and complete disarmament". As this happy state of affairs is yet to occur (CCW, CWC and BWC notwithstanding) - and the use of the modifier "complete" sets the bar extremely high - so the logic goes, there is no requirement for nuclear disarmament, however desirable this may be. Conveniently, the second formulation does not make it illegal to procure a replacement to the existing UK Trident SLBM system.

(Minimum deterrence looks a lot like maximum deterrence but with fewer missiles.)

But what's interesting is that over the last decade or so, UK Governments have clung to their tortuous grammatical interpretation whilst publicly demonstrating that the UK is making reductions in its nuclear forces (even as they spend £1bn per annum to reinvigorate the AWE Aldermaston nuclear weapons design and production infrastructure). This appears to be an odd halfway house, as it attempts to demonstrate that the UK is moving towards nuclear disarmament whilst retaining what Whitehall describes as a "minimum credible deterrent".* Moreover, to scrub up its disarmament credentials, the UK draws attention to its ratification of the Comprehensive Test Ban Treaty (CTBT), and the fact that irrespective of the stalled Fissile Material Cut-Off Treaty (FMCT), the UK is no longer producing fissile material for military purposes.** 

Indeed, the UK Foreign Office goes so far as to describe the impact of the 2010 Strategic Defence and Security Review (SDSR) thus:

"In this Review the Prime Minister, David Cameron, and Deputy Prime Minister, Nick Clegg, committed the UK to maintaining a credible deterrence by:

• reducing the number of warheads onboard each submarine from 48 to 40
• reducing our requirement for operationally available warheads from fewer than 160 to no more than 120 
• reducing our overall nuclear weapon stockpile to no more than 180 
•  reducing the number of operational missiles on each submarine

These reductions illustrate that whilst the UK believes in maintaining a minimum credible deterrent this is kept constantly under review and is fully in line with our international obligations under the Nuclear Non-Proliferation Treaty."

But it is only in line with the UK's "international obligations under the Nuclear Non-Proliferation Treaty" if the second, grammatically tortuous, interpretation of NPT Art VI is accepted. 

So who is right? And does it matter?

On which interpretation is correct, I'm not sure yet. But it certainly matters, as if the first interpretation is correct, then the UK Government could find themselves explaining a breach of their international obligations. Against this backdrop, I'm very much looking forward to reading Daniel Joyner's new book, especially after some of the critical reviews. I'll write again when I've read it and reflected.

* As mentioned before this blog does not accept the bald assertion that the UK Trident system currently deters anyone or anything, and therefore doesn't use the term.

** The cynics may observe that it's easy to be in favour of a narrow FMCT if you've got all the highly enriched nuclear fuel that you would ever need on hand, especially if it is already outside of IAEA safeguards.

Three-and-a-half down....

 

(No risk of running out of red paint.....)

Back in January, I put up a tongue-in-cheek post on the Arab world's dictators, taking the chance to laugh at the cults-of-personality that have blighted the governance of the region since decolonisation in the 1950s. All good clean fun, provided that you don't have to live in any of the more-or-less authoritarian states they ran (badly).

I certainly never expected to be recording the final defeat of Gaddaffi's forces in Sirte at the same time as Tunisia is preparing for its first-ever democratic elections - with an astonishing and inspiring 11,000 candidates running for 218 seats - this Sunday. Hence, we are witnessing a zone of democratic opportunity running from Tunisia to Egypt - absolutely excellent news. Moreover, given the UN vote due today, it seems impossible that Ali Abdullah Saleh will be able to revert to running Yemen in the same manner as he has since 1978, bringing the winds of change to Yemen. And Syria? Well, I'd be a seller of shares in Asad Inc., were they publicly traded.

The legal bit
But the process of revolutions matters, and in Libya there was clearly an International Armed Conflict (IAC) between NATO and Gaddaffi's forces, sanctioned by UNSCR 1973, and a Non-International Armed Conflict (NIAC) between the National Transitional Council and the Gaddaffi regime; the ruling law was clearly some flavour of LOAC in places where conflict was actually taking place.

(Gaddaffi's last redoubt)

In the last 24 hours, it has also become clear that Gaddaffi was alive - though injured - at the time of his capture, and that he was subsequently shot dead, apparently in cold blood. Let's be clear - killing Gaddaffi was the execution of a presumptive PoW (presumptive in that Gaddaffi would have had PoW rights until an a GC III Article 5 Tribunal - which doesn't appear to have been held - decided that he did or didn't qualify), which itself is a War Crime contrary to Article 8(2)(b)(vi) of the International Criminal Court's Rome Statute.

As Elham Saudi of Lawyers for Justice in Libya (LFJL) pointed out on the UK's Channel Four news last night, it would have been much better for him to have faced trial, both from notions of justice and for the victims to have their day in court. What is interesting now is how the new Libyan authorities choose to deal with these important legal issues - as the Rome Statute makes clear, crimes committed by both sides of an armed conflict need addressing.

New Project: Trident Replacement

(One of the few photos to make Type 45 DDGs - left - at £1bn each look comparatively inexpensive...)

As some of you know, I'm currently sitting on as a juror, meaning that these posts are somewhat erratic. For this, my apologies - we should be done next week. 

However, this is the first post in a new series on the options and legal issues occasioned by the UK's impending decision on whether or not to replace the Vanguard-class ballistic missile submarines (SSBN) in June 2015 as part of renewing the UK's nuclear weapons programme. A future UK SSBN would carry the UGM-133 Trident II D5 submarine-launched ballistic missile (SLBM), which has been life-extended to their expected out-of-service date of 2042. In short, the (so-called) "UK Nuclear Deterrent"* could easily be assumed to be required and simply treated as a technical and management challenge that just requires the MoD and the defence industry to get on and build the submarines.

As a system, Trident remains impressively reliable, with USS NEVADA conducting the 135th consecutive successful test launch in March 2011, an unmatched reliability record for SLBMs, and one which contrasts vividly with the Russian's on-going problems with the SS-NX-30. Moreover, as a result of the 1962 Polaris Sales Agreement as amended for Trident under Regan and Thatcher in 1982, the UK has a privileged position vis-a-vis the other nuclear states, it does not have to develop an indigenous SLBM delivery system, making UK Trident comparatively cost effective.   

(Not your average SLBM showroom)

Trident is, in the famous words of Sir Humphrey Appleby "the nuclear missile that Harrods would sell you". Perhaps, but as (the ever) hapless Jim Hacker replies, "... it costs £15bn and we don't need it." Allowing for inflation from 1986, this is roughly the discussion that the UK faces today. 

But as much as I revere "Yes, Prime Minister", there are also financial, strategic and legal elements at play in the decision, and this blog will present commentary of them over the next few months. 

*You will never see this blog refer to the UK nuclear weapons programme (UK NWP) as the "UK Nuclear Deterrent" as this implies a value-judgement that has yet to be demonstrated, namely, that someone or something would, but for the existence of the "Deterrent" want to attack the UK, and have therefore been successfully deterred.

Is Torture Always Wrong?

(Pace Blackadder, this is "tactical questioning", not torture.)

Jeremy Waldron at NYU has published a most interesting paper entitled "What are Moral Absolutes Like?" on whether it was ever allowable to use torture. I'm working through it now, and is well worth a read. 

"Canada, Arrest Bush!"

 

("But if you came back without immunity, George....")

Well, well.

It seems that Amnesty International have sent a missive to the Canadian Government  demanding that they arrest and try former US President George W. Bush for complicity in torture, (specifically the "enhanced interrogation techniques") authorised after 9/11 when Bush visits Surrey, British Columbia for an economic forum on October 20, 2011.

Predictably, there has been much bombast against Amnesty. And in their heart-of-hearts, I don't suppose that Susan Lee and her Amnesty colleagues seriously expect any Canadian Government - let alone Stephen Harper's Conservatives - to actually arrest and try Bush. Indeed, POLITICO quotes Canadian Minister of Citizenship and Immigration Jason Kenney PC MP;

(Jason Kenney PC MP)

“I cannot comment on individual cases… that said, Amnesty International cherry picks cases to publicize based on ideology. This kind of stunt helps explain why so many respected human rights advocates have abandoned Amnesty International,”  

 And  further, according to the Minister, 

"Perhaps this helps to explain why Salman Rushie (sic) has said that ‘it looks very much as if Amnesty’s leadership is suffering from a kind of moral bankruptcy,’ and why Christopher Hitchens has written about the organization’s ‘degeneration and politicization."

So far, so predictable. But what is the legal position?

Both Canada and the United States are parties to the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which came into effect in 1987. CAT is very clear on two pertinent points - what constitutes Torture in Article 1(1), and the obligations of State Parties in Article 7(1).

CAT Article 1(1) defines torture as:

1(1) For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

So-called "Waterboarding" - in actuality, simulated drowning, one of the "Enhanced Interrogation Techniques" - has been described as torture by the former UN High Commissioner for Human Rights Louise Arbour, reflecting the view of the international community. Indeed, it is noteworthy that President Obama revoked authorisation of these "techniques" on the second day of his Presidency - Jan 22, 2009, in an Executive Order entitled "Ensuring Lawful Interrogations", precisely "to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions". CAT is one of these Treaty Obligations. In signing the Executive Orders allowing these techniques in general, and specifically "waterboarding", President GW Bush has a prima facie case to answer under CAT Art 1(1).

(24 Sussex Drive, Ottawa; politically, the buck stops here.)

What are Canada's obligations under CAT? Per Art 7(1) and 7(2),

7(1) The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 

7(2) These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

In other words, if the US is unwilling to try President G W Bush, then if he were to appear in the territory of another CAT State Party, then that State Party is obliged to extradite him to a State Party that will - this was the basis for the-then Senator-for-Life Augusto Pinochet to be arrested in the UK in 1998 - or to try President G W Bush under universal jurisdiction. And note the obligatory nature of the injunction in Art 7(1) - "The State Party ... shall" - not "The State Party ... may" or "The State Party ... could if it feels like it"; CAT imposes a binding obligation on the State to do so.

(Pinochet departs from RAF Waddington in 2000: truly, the craven Jack Straw's political epitaph.)

And this, combined with the strongly independent Canadian Courts, is presumably is what Amnesty are counting on; if Bush turns up in British Columbia, and the Harper Government declines to arrest him, then the Canadian Courts presumably could force the Government to fulfil its CAT obligations by arresting and trying or extraditing President G W Bush.

This is no theoretical threat; indeed, it is reported that President G W Bush cancelled a trip to Switzerland last February to avoid the threat of legal action in Swiss Courts. And for the record, I don't expect Bush to be arrested - because I don't expect him to take the risk.

So, Canada, over to you...