It's Morning in Arabia

 (The Gold Standard for political advertising, dammit. No wonder Mondale/Ferraro got stuffed.)

(Without apologies to the Gipper.)

Firstly, Happy 2012!

It's hard to believe that less than 12 months ago, I posted a tongue-in-cheek piece about autocrats' egomania after the thunderclap of Tunisia's Jasmine Revolution. Yet less than a year on, brave people are protesting (and dying) in Syria,  three dictators have gone, with Tunisia, Libya Egypt and Yemen all standing at the dawn of a new and vibrant cacophony of politics and social change, with only Bahrain's regime looking like it has successfully suppressed popular anger. But it is unlikely to end here, as the siren calls of fresh air continue to echo around the Arab world, with unpredictable, but likely positive long-term effects. And crucially, an acceptance in the West that we can't reverse this tide even if we wanted to, so it's much better to be on the right side of history rather than having history's wave crash over you. 

Just before Christmas, Chatham House published a really interesting paper on Saudi Arabia's medium term economic and fiscal position which is fascinating (and for Saudis facing a demographic explosion, terrifying). Accountability is going to be key in making the choices that such a fiscal transition will require, so pressure for change will only increase. Interesting times ahead!

Gareth Evans on R2P: Is Syria next?

(Gareth Evans QC AO)

Back at the beginning of the Libyan revolution, I asked "Am I my brother's keeper" in reference to the Responsibility to Protect, or R2P. So it was with some annoyance that I missed the lecture by Gareth Evans, the former Australian Foreign Minister, and later head of the International Crisis Group at Chatham House's International Law Programme on 6 Oct 11. Evans has been a major proponent of R2P in recent years, and under R2P, the international community undertakes to ensure that the failures of the 1990s in Rwanda, Srebenica and Kosovo are not repeated - a position that made it into Paragraph 139 of the 2005 World Summit Conclusions. Para 139 states in part:

"The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity."

As this blog has previous pointed out, Para 139 is a real drafting hodgepodge, betraying the lack of unanimity in the international community. Crucially, should R2P - and especially the use of force - be allowed outside the direct consent of the UNSC acting under Chapter VII's Article 42? 

The relationship between R2P and Chapter VII is critical, because at one end of the spectrum, R2P is no more than a rhetorical device, as the UNSC continues to control the use of force, even in time of humanitarian emergencies; if so, it is pointless. At the other end of the scale, R2P could be construed as bolstering (the pre-existing) right of humanitarian intervention outside of the UNSC in cases where the UNSC is unable or unwilling to act.  

(Them again....)

It is therefore with great interest that I read the transcript of Gareth Evans' 6 October speech. What's particularly striking is that Evans repeatedly ties R2P very narrowly to the UNSC rather than an expansive understanding tied to humanitarian intervention, and he then sets out a five criteria test for what he takes great care to describe as 

"... legitimacy - not the criteria of legality, that's clear; Security Council support - criteria of legitimacy"

These criteria are below; though lengthy, I think it is worth quoting Evans' five-fold test in full:

The first test is seriousness of risk. Is the threatened harm of such a kind, such a scale, as to at least prima facie justify the use of military force?
 
The second test is whether the primary purpose of the proposed military action is actually to halt or avert the threat in question, as distinct from being about oil or bananas or whatever. They can be secondary or tertiary considerations and they could be quite relevant in helping to mobilize otherwise sceptical domestic constituencies but the intention test has to be what’s the primary motivation genuinely – is it to help or avert harm?

The third test is last resort. Has every non-military option been, if not applied in practise because that can be possibly time consuming in some cases, but has it at least been explored and found wanting and unlikely to serve the purpose.
 
The fourth test is one of proportionality, of a scale, the duration, the intensity of a proposed military action and the minimum necessary to meet the threat in question.

And the final and often the toughest legitimacy test is balance of consequences. Will those at risk be better or worse off as a result of such military action being taken?
 

(Decent shooting in Bab al Azizya, with photo credit to Elham at LFJL)

In Evans' view the 2011 Libyan intervention met all five criteria, though in his view they may have gone too far in prosecuting the conflict - in that it went further than the abstaining States were probably expecting when they allowed the passage of UNSCR 1973 (it passed 10-0-5, with Brazil, China, Germany, India and Russia abstaining), which probably contributed to the Chinese and Russian vetoes of draft UNSCR S/2011/612 of 4 Oct 2011. S/2011/612 was defeated 9-2-4 (China and Russia vetoing, with Brazil, India, Lebanon and South Africa abstaining); in other words, if China and Russia had abstained, there was the bare minimum of 9 votes required for passage. 

So with the death toll in anti-Assad protests reportedly reaching 3,000, what is the position of R2P after a (very benign) draft UNSCR on Syria was vetoed by the UNSC? (And let's be very clear - the vetoed text is a million miles from authorising the use of force - and had been deliberately watered down to overcome Chinese and Russian objections, which suggests that sponsors were expecting that the concessions would be sufficient get this through, and as a result it isn't likely to do much for P5 relations on the UNSC.) 

I presumed that R2P had to add something to the existing framework, by explicitly recognising a right to intervene when circumstances on the ground demanded it. Simply, without it, R2P is meaningless, and there's no point in having it at all - so why put it in Para 139 of the 2005 World Summit text? It is this element that is so confusing (and potentially disturbing) about Gareth Evans' speech - it is when the UNSC is deadlocked, and crimes are occurring on the ground that the R2P buttress to humanitarian intervention doctrine comes into its' own, and intervention to protect the civilian population should be initiated. 

(Closer to the action than Gioia was to Libya. Beer is better, too.)

This is one that will run and run, but I'd prefer to see the UK and allied aircraft that handed Benghazi's airspace back to Libyan control yesterday moved to RAF Akrotiri, Cyprus to bring a little force to bear on the Syrian regime. Akrotiri is less than 220nm from Damascus - under 25 mins flying time. But for Evans, presumably the no-go from the UNSC would mean that R2P can't be applied - and it is this result with which I have the most trouble.

So, President Obama, Prime Minister Cameron and President Sarkozy: prove that Gareth Evans is too cautious and give R2P some legs with an NFZ over Syria - it's legal, and it woulg give the Arab Spring the opportunity to bloom in Damascus, Aleppo and Homs as well. 

Does nationality matter in drone strikes?

 (Should owning one of these exempt you from a CIA drone strike?)

It appears that as well as Anwar al-Awlaki, the drone strike that killed him also killed Samir Khan, a US citizen who was responsible for producing Al Qaeda in the Arabian Peninsula (AQAP) Inspire magazine. It is also reported that Ibrahim Hassan al-Asiri, AQAP's master bomb-maker was also killed in the same attack. Does it make any difference that al-Asiri was a Saudi, rather than a United States national?

As a matter of international law - and I am not in a position to comment on the position under US domestic law - I can't see that nationality is the problem, (or indeed, even relevant) to the question of the legality of the attack. The key element point of LOAC is either is one of combatant status in an International Armed Conflict* (IAC), or either having a "Continuous Combat Function" or Directly Participating in Hostilities in an Non-International Armed Conflict** (NIAC). Discrimination between combatants and non-combatants has is customary international law binding on all States. If there is no armed conflict taking place, then LOAC does not apply, and the use of force must be justified under International Human Rights Law (IHRL).

So to answer the first question, in international law, the nationality of the targets is immaterial: what matters is their status as combatants, or if this is a law enforcement situation, then their nationality is irrelevant to the crimes. Hence, US nationality is not per se a bar to being killed by a CIA drone strike.

Therefore, the legal basis of the attack that killed al-Awlaki, Khan and (reportedly) al-Asiri has two hurdles to cross. First, what was their combatant status or otherwise? Second, did the attack itself meet the proportionality, discrimination and military benefit requirements under the jus in bello tests. (In policy terms, there should also be a third test: "Is this a good idea?", but that's not explicitly a legal question.)

(A very interesting study, though one not without controversy)

What was the combatant status of al-Awlaki, Khan and al-Asiri?

The analysis of the combatant status (or not) of these three men begins with the characterisation of the conflict. Three are possible:

- There is an IAC underway between Al Qaeda and the United States, and that AQAP is an active constituent of this IAC in the ungoverned spaces of Yemen.  

- There is a NIAC underway in Yemen, in which AQAP is in rebellion against the legitimate Government, and that the US was acting in collective self-defence at the request of the Yemeni Government. 

- There is no armed conflict in Yemen, but that AQAP are operating as a terrorist group, and that this was a law enforcement operation in which there was no other way to defeat an immediate threat to life other than by killing al-Awlaki, Khan and al-Asiri. 

 (Chatham House, centre of much common sense and good work.)

What sort of conflict is actually going on?

The characterisation of the conflict is a key element in the legality of the strike. And this is why Chatham House's forthcoming study on the characterisation of conflict is so important - it's central to the targeting decisions of what / who can you hit, and when can you do it? Let's look at the three options in turn.   

(Aftermath of an armed attack: USS COLE towed from Aden)

International Armed Conflict?

The US could note that it had been attacked by AQ in Yemen in the attack on the USS COLE on 12 Oct 2000 (nearly a full year before the US 9/11 attacks), and that since that time, AQ, in the form of AQAP has been engaged in an IAC against the US from bases in Yemen, which Yemen has been unwilling or unable to suppress, and therefore the US has the right to self-defence against these attacks. 

This argument is considerably strengthened if it counts AQAP as an element of AQ, as a number of small scale terrorist attacks would not meet the threshold for armed conflict themselves, though a larger number of such attacks can. In recent years AQAP has been one of the most dangerous AQ elements, with the "Underwear Bomber" Umar Farouk Abdulmutallab's failed attack on 25 Dec 2009, and the Toner Cartridge Bomb Plot discovered and disrupted in October 2010. Moreover AQAP's leading ideologue - Anwar al-Awlaki was also cited by Roshonara Choudry (jailed in London in 2010 for attempting to kill the British MP Stephen Timms) as a key influence. 

However, the legal impact of declaring that the US in engaged in an IAC with AQ/AQAP would be that the US would have to accept that AQAP was a belligerent, meaning that any AQAP prisoners would have to have POW status until such time as an Article 5 Tribunal (so-named because it comes from Article 5, Third Geneva Convention 1949) has determined whether or not they were entitled to it. And in any event, even if such a Tribunal were to deem that AQAP prisoners were not POWs (e.g. they were mercenaries), then they are still covered by the basic guarantees of Art 75 of AP I as detailed in Art 45(3) of AP I. This is not something that the US has, to date, accepted (see: Guantanamo Bay).

Non-International Armed Conflict?

Under Art 1(1) of AP II, NIAC occurs between the:

... armed forces [of a High Contracting Party] and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Per the ICRC Commentary the insurgent group needs sufficient control of territory in order to be able to implement the Protocol's requirements. It is possible that in south eastern Yemen AQAP does indeed control the required territory, and that in the process it could do so. Under this characterisation, Yemen could request US assistance, and provided that there was sufficient evidence to conclude that these individuals were "direct[ly] participating in hoslities" then they could be attacked, subject to the usual jus in bello tests. But it is hard to see this as the best characterisation of the conflict, not least because of the explicitly international - and, indeed, US-specific - orientation of many of AQAP's operations.

  

(Others who have had trouble differentiating between law enforcement and the use of force...)

Criminals subject to a Law Enforcement Operation?

There are significant policy attractions to characterising AQAP as a criminal gang, and addressing the problem as a law enforcement problem, and not a military one - and not the least of which is that criminals are criminals, and that the US would deny AQAP the kudos of having a legitimate military struggle. Kevin Jon Heller of the University of Melbourne over on Opinio Juris thinks that what is going on against AQAP is "not an armed conflict at all".

It is certainly true that AQAP members and affiliates have committed acts that US and UK governments have classed as criminal, as the life sentence handed down to Roshonara Choudry in 2010 for attempting to kill the British MP Stephen Timms after reportedly being radicalised by Awlaki's video sermons, and the forthcoming trial of Umar Farouk Abdulmutallab demonstrate. But this glosses over a problem: in trying them as criminals tied to AQAP, the US and UK Governments are explicitly making the case that this is not a conflict, because if it was, these individuals would either be combatants, or the Governments involved would have to show why they were not - and why they should therefore be facing criminal trials. As combatants, let us be clear, they could still face war crimes trials for attempted murder - it's difficult to see either Northwest Airlines Flight 253 or Stephen Timms MP as legitimate targets.

In characterising these as criminal acts, and hence a law enforcement problem, the UK and US Governments raise a significant problem for the use of force, inasmuch as it significantly raises the bar for the use of force, as LOAC does not apply, leaving any use of force governed by IHRL rules. Though the right to life is clearly central to the exercise of the other rights, IHRL does not make the use of lethal force illegal in policing operations as some argue, but in all cases it will require the minimum use of force possible at all times, and that lethal force only be used in circumstances where there is no other method of preventing an immediate threat to life. In practical terms, this is given as the legal basis for killing suicide bombers (or suspected ones: this was the case in the case of Jean Charles de Menezes in London in 2005). Thus, though lethal force is allowed in some cases under IHRL, it demands a high evidential bar to be cleared of the imminence of the threat to life posed by those who are about to be killed.  

What was the applicable law in the view of the US in this case?
We don't know yet, as this hasn't been released (and if it has please let me know). It should be, for transparency's sake. However, with that large caveat in place, the operationally easiest thing would be for the US to decide that the correct characterisation of the conflict is that it is an IAC, such that they could target Awlaki et al as combatants at any time or place - which is where Jack L. Goldsmith (a former assistant attorney general in the George W. Bush) comes in.

But if true, what is troubling is the notion that there are two characterisations of the conflict - one for the leadership as an IAC or a NIAC - and one for the footsoldiers like Abdulmutallab, both of which would work in our favour. This feels like a legal nonsense, and it needs to be cleared up.

 (NB: Reapers don't just carry missiles - this one has 2 x GBU-12 Paveway II 500lb LGBs, too.)

So what?
At one level, many - indeed most westerners - may shrug their collective shoulders and conclude that Awlaki et al:

- These were bad guys;
- Thought that they were fighting a war and got killed by their opponents,
- Everyone who didn't agree with their worldview is safer (and probably better off)
- Besides, frankly these guys had it coming to them

This makes legal arguments at once irrelevant, and, to the extent that they constrain similar action in future, arguably dangerous. Therefore, there is not a particular problem in killing them, and we should be good with that. From a strictly realist / utlitarian viewpoint, there may be something to this position.

But as an international legal proposition, it is very dangerous, and for (at least) two reasons. 

First, knowingly creating a legal black hole to get around the law is a flagrant violation of the central tenets of the rule of law, and is always fraught with the opportunities for abuse -  see Guantanamo, CIA black sites - precisely because it makes the accountability of the State that the rule of law is based on virtually impossible. 

Second, being able to vary the legal characterisation of a conflict depending on who you're targeting is nonsense; unless there is a clear difference between the types of conflict that Awlaki and Abdulmutallab were involved in, it is nonsensical to use radically different legal characterisations of the conflict in order to make the use of force easier, whilst retaining the criminal option when you want to use it. 

For those who doubt either proposition, remember that international law is fundamentally about reciprocity. How would we feel about these propositions being applied to us by another power?

And for the record, I think the conflict with AQAP could be an IAC (though this raises interesting questions about POW status), could be a NIAC (though this raises difficulties about the relationship with Yemen, and whether AQAP actually controls any territory) or (my personal preference) it could be criminality below the level of a NIAC that requires police action - which raises all sorts of other questions over the legality of killing Awlaki et al. 

But what it can't be is more than one at once.

* See Article 4 A (1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of the First Additional Protocol of 1977 (AP I) for the definition of a combatant in an IAC. Article 50 of AP I defines a civilian, and Article 48 of AP I restates the rule that military authorities shall direct their operations only against military objectives. 

**  See Article 13(3) of the Second Additional Protocol to the Geneva Conventions 1977.

UK publishes Libya legal advice (sort of)

(Elizabeth Wilmshurst CMG addressing the Iraq Enquiry. Thank-you for everything.)

Appearing at the Iraq Enquiry last year, former UK Foreign Office Deputy Legal Adviser Elizabeth Wilmshurst (now Head of the Chatham House International Law Programme) - and the only person to resign over the illegality of the 2003 Iraq invasion - described the 2003 legal and policy process as  ... lamentable. There should have been greater transparency within government about the evolving legal advice" .  

Quite right too. 

So it was with real interest that I saw a note from Nick Clegg to LibDem party members this morning on the Libyan situation which includes this:

"Colonel Gaddafi’s treatment of his own people has been brutal, savage and wholly unacceptable. We have worked with Libya’s regional neighbours, especially the Arab League, and countries across the globe, to secure a resolution in UN Security Council. This resolution will allow us to act lawfully  in deploying our forces to up-hold a ‘no-fly zone’ in Libya.

The Prime Minister gave a statement yesterday, which you can read here. And on Monday we will have a full debate in the House of Commons, followed by a vote. In addition we will be publishing a summary of the legal advice of the Attorney-General. 

That is the right approach. This is a coalition government that will act decisively to protect innocent lives and uphold universal human rights. But one which will do so working with, not against, international law and the international community."

Shortly, therefore, we should get to read a summary of Sir Daniel Bethlehem QC's thoughts. Great, I look forward to it. 

Even better, Nick, you could publish the whole thing, and not just the summary.

   
Update: Here's the UK legal advice. Very sensible.

Armed Attacks in Cyberspace

 (The front door to our wonderful playroom.)

I was at Chatham House last night for Elizabeth Wilmshurst's excellent International Law Discussion Group series, this time addressed by Col. Hays Parks USMC (Retd), the editor of the forthcoming US Department of Defense Manual on the Law of Armed conflict. (Yes, it's finally happening, and we can replace US Army Field Manual FM 27-10 from 1956!) As expected, Col. Parks was excellent, and with a distinguished audience asking pointedly interesting questions, it was heaven for a LOAC* geek! As usual, ILDG was all very interesting, and there will be a formal note of the meeting on the ILDG website shortly.

(An Annex to our wonderful playroom.)

But one of the most interesting elements was the news that there will be a chapter on the law covering electronic attacks and cyberwarfare. This will be the shortest of the chapters, reflecting the novelty of the subject, but it will be fascinating to see the conceptual approach that the US are taking; crucially, what will they say about the definition of an armed attack in cyberspace? All to be revealed shortly, it seems.

* Don't let Wikipedia or the ICRC mislead you, dear reader. LOAC is not "International Humanitarian Law", it is the law to regulate - and make less terrible - armed conflict... hence, the Law Of Armed Conflict - LOAC! Please note: this blog has no strong views on this subject. Too much.

UK: Is it time for a post-Trident future?

 

May 26, 2009 - HMS Victorious fires an unarmed Trident II-D5 SLBM

This is a post I've been mulling over for a while. Regular readers will have seen lots of posts on SDSR and the current orientation of UK defence and security policy, but nothing in depth on the budgetary elephant in the room - Trident, the UK's sole nuclear weapon / Weapon of Mass Destruction programme. (It's always struck me as amusing that "we" have nuclear or atomic weapons for "deterrence"; "they" (presumably North Korea, Iraq, Iran, Libya) have "WMD".)

In this first post, I'm going to canter through the "how we got here" elements of UK nuclear policy, and then I'll follow up with UK future nuclear choices.

Ancient History

The history of the UK's independent nuclear deterrent is well known. It started early in WWII with British and European emigres as Tube Alloys and became a junior partner at Las Alamos in the Manhattan Project; indeed, so the story goes, the code name meant that it was lost in the US Navy's archives for some months as the code name was assumed to be the (not very interesting) subject. After the end of the Pacific war, the US cut off nuclear cooperation in the 1946 McMahon Act, and an impoverished UK Labour Government under PM Clem Attlee and Foreign Secretary Ernie Bevin started an indigenous programme without bothering to tell the rest of the Cabinet, let alone Parliament or the British taxpayers.

The important question is Why?

The argumentation in 1946 was similar to today, and is impressively circular. 

1. Great Powers have the most advanced and most terrible weapons.

2. Nuclear Weapons are the most advanced and most terrible weapons.

3. The UK is a Great Power, therefore the UK must have nuclear weapons.

Or, in the words of Bevin at the time, "We've got to have this thing. I don't mind it for myself, but I don't want any other Foreign Secretary of this country to be talked at or to by the US Secretary of State as I have just been... We've got to have this thing over here, whatever it costs ... We've got to have the bloody Union Jack on top of it."

Canny readers will note the absence of anything to do with the Soviet Union - or, pace Jim Hacker, even the French. Since inception, UK nuclear policy and posture has been far more about perceptions of national standing than about military utility. As such, it plays on the most neuralgic elements of Whitehall's psyche - what Dean Acheson scathingly referred to in the 1960s as the result of "Britain losing an Empire and [being] yet to find a role".

(Why build one bomber when you can build three? Top to bottom, Victor, Valiant and Vulcan. Remarkably, all entered service. There was even a fourth prototype - the Short Sperrin - in case these three designs failed.)

In 1952, the UK thus became the third nation to conduct a nuclear detonation after Australian kindly volunteered the Monte Bello Islands as a nuclear test site, and in 1956-57 the UK and Australia followed up with a joint test series at Maralinga, South Australia. Combined with the development of the V-Bombers, the Royal Air Force fielded a nuclear strike force that would grow to more than 120 bombers by 1964. This was largely indigenous but there were some borrowed US freefall bombs and the RAF also operated 20 Squadrons of American Thor IRBMs between 1959-63. At the tactical level, the UK also developed the indigenous WE177 series of free fall atomic bombs and nuclear depth-charges. WE177s were in service from 1966 to 1998, and their retirement meant that Trident SLBMs are now the UK's only atomic weapons. 

The Polaris Sale Agreement, December 1962

(SuperMac hoodwinks Kennedy, or something.... Nassua, December 62)

Unfortunately, just as this massive investment was coming into service in 1960, Gary Powers inconsiderately got himself shot down over the USSR, and the threat from surface to air missiles (SAMs) made it increasingly unlikely that an independent UK bomber offensive against the Soviet Union would meet minimum UK deterrence - guaranteed destruction of Moscow, known in suitably Clancy-esque terms as "The Moscow Criterion". Therefore, the UK, which had terminated its' indigenous ballistic missile programme in 1960, attempted to buy missiles from the US for the bombers - the ill-fated Skybolt programme - and when Skybolt was cancelled by the US, PM Harold Macmillan sweet-talked President Kennedy into supplying Polaris submarine launched ballistic missiles (SLBMs) at Nassua in Dec 1962 immediately after the Cuban Missile Crisis.

The deal was that the UK would build the submarines and the warheads, crew the submarines and lease the missiles. (If you fire it, you pay for it. We know where you live.) In return, the UK would commit them to NATO under all circumstances except the undefined "supreme national emergency". Quite what this was or how it could break out without it being a reasonably serious day for NATO as a whole was never defined. 

(HMS Renown, a UK Polaris submarine. Dull. Much less interesting than shiny aeroplanes.)

From Polaris's introduction in 1969 onwards, the notion of the UK having an independent strategic nuclear capability was questionable. Could the UK fire some missiles without telling the US? Probably, and more importantly, the other side couldn't know that you couldn't or wouldn't, creating at least the potential for a second decision making hub and removing the fear of strategic decoupling - namely the European fear that the US may ultimately renege on the nuclear shield, and let conventional Soviet forces run riot in Europe as long as the Soviets didn't target American cities.

Chevaline to Trident
In US Navy service, Polaris was superseded by the longer-range Poseidon, and both were replaced by Trident I or II by 1992. In the UK, Polaris was retained, but the Moscow-criterion was under threat by the deployment of the Moscow Anti-Ballistic Missile (ABM) System, which used nuclear armed interceptor missiles (eek!) to knock out incoming ICBMs.

(Roan Antelope - Antelope Chevaline)

The UK therefore developed a series of decoys and penetration aids under Project Chevaline, keeping UK Polaris in service until the mid-1990s. Technically, Chevaline - so named because an official rang London Zoo asking for the name of a large antelope - was a fiasco, running a decade late and £1bn (in 1979 money - £3.6bn today) overbudget, not a penny of which was disclosed to Parliament under either successive Conservative, Labour or Conservative administrations. In fact, so great was the Parliamentary outcry when the costs and disaster that was Chevaline came out, that it led Parliament to instruct the UK National Audit Office to produce an oversight report, now called the Major Projects Report.

Policy Implications

The crucial point is that the UK's "independent" nuclear deterrent since 1969 has been continuously reliant on the US for production, testing, engineering support and development work in support of this "independent" deterrent. There have been benefits on both sides - the UK saved a colossal amount of money by buying American rather than following the French route and building it all at home. And the US shared the costs of the missile section of the submarines - the Common Missile Compartment, CMC - as well as effectively gaining an additional ballistic missile submarine on patrol that someone else was paying for.

But in my view, the undisclosed price the UK paid was the fear that the US would cut nuclear cooperation a second time meant that UK foreign policy options were constrained for fear of offending the USA. As a result, the paradox of the independent nuclear deterrent was that it appears to have seriously constrained independent UK foreign policy.

Tomorrow, we'll look at the current situation, and the costs and options for future UK nuclear policy.

Should they be allowed to secede?

Hello,

Firstly, many thanks for the response to the first of these musings; and so I’ll continue to scribble.

One of the great joys about being an international relations geek in London is that it is always possible to get a fix at Chatham House, where you’ll find fellow sufferers from this malign affliction. I was there last Friday night for Professor Abdi Ismail Samatar speaking on Somali Piracy: Alternative Approaches and Solutions. Professor Samatar’s speech was thought provoking and there will be write up on the CH website later this week. If you’re remotely interested in the politics of the Horn of Africa, it’ll be well worth a read.

Accepting the principal thrust of his argument that piracy off the Somali coast is a symptom of a lack of governance rather than something unique to Somalia that leads to acts which the naval lawyers describe as “Piratical Behaviour”, the solutions will be found on land. And in Somalia, this could involve redrawing the post-colonial boundaries in a way that violates a major taboo in African politics.

I should stress at this point that Professor Samatar himself made clear that he opposes secession, even though he is from north-western Somalia / Somaliland, and his point was that allowing Somaliland to secede would result in a precedent that would allow many Ethiopian groups to claim the same right, and would see Ethiopia implode.

I disagree.

I understand why newly-independent African countries accepted the artificial colonial borders, in order to avoid redrawing the entire map based on ethnicity, which, for better or worse, was expected to lead to chaos. The tragic experience of ethnic Germans at the end of WWII and of the population “transfers” at the birth of India / Pakistan, and Turkey / Greece underline the risks posed by basing boundaries on ethno-nationalism.

But are there cases where exceptions to this rule of the inviolability of pre-existing colonial boundaries should be made? I believe that there are, notably where a federal state exists, or where regions with a profoundly different colonial experience were not offered the choice of independent statehood at independence – in other words, things that Professor James Crawford would describe as “self determination units”.

This applies in at least three cases in Africa: Western Sahara, Cameroon and Somaliland, with South Sudan as the agreed outlier resulting from the 2004 Comprehensive Peace Agreement (the Naivasha Agreement). Of these, only Southern Sudan is unique (or sui generis in legalese) – Western Sahara was occupied by Morocco and Mauritania after Spain withdrew in 1975, French Cameroun and British Southern Cameroons were consolidated and as the Republic of Cameroon in 1961, and Somaliland which was independent for five days in June 1960 before union with Italian Somaliland as the Republic of Somalia on 1 July 1960.

Why does this matter? In my view, it is important to recognise that international law does provide for cessation by States, and the ICJ in the Kosovo Advisory Opinion underlines this. Indeed, Kosovo, as a non-autonomous province of a federal state at the time of cessation, arguably had less of a claim than Somaliland had in 1960 or today, after withdrawing from Somalia in June 1991.

So the point is that because Somaliland is in a different legal position to, for example, the Oromo region of Ethiopia, it could hold another independence referendum without rendering asunder the post-colonial settlement of not moving lines on a map. And we know from E. Izzard, Esq., quite how important maps and flags are.

Levity aside, it does suggest that the international community could plausibly claim that recognising Somaliland - if that's what the Somalilanders want - does not mean initiating a free-for-all in Africa. Indeed, the longer the policy of no change under any circumstances goes on, the more likely and completely it is to crumble under its own contradictions rather than a pragmatic recognition of the exceptional cases.

Oh, and there's a direct payoff in the Somali piracy problem, too: areas with a functioning government don't have piracy in anything like the same intensity - Somalia under the Union of Islamic Courts showed this during their time in power. So it is predictably unsurprising that Somaliland doesn't feature as a base for pirates off the Somali coast. Recognition means membership of the international system - and in this case, membership helps everyone.