Group items tagged

There have been many first-rate analyses demonstrating that the right to safeguarded enrichment under the NPT is crystal clear—from the Treaty itself, from its negotiating history, and from subsequent practice, with at least a dozen non-weapons states building fuel-cycle infrastructures potentially capable of supporting weapons programs.  Bill Beeman published a nice Op Ed in the Huffington Post on this question in response to Sherman’s Senate Foreign Relations Committee testimony, see here and, for a text including references, here.  For truly definitive legal analyses, see the work of Daniel Joyner, for example here and here.  The issue will also be dealt with in articles by Flynt Leverett and Dan Joyner in a forthcoming special issue of the Penn State Journal of Law and International Affairs, which should appear within the next few days.         From any objectively informed legal perspective, denying non-weapons states’ right of safeguarded enrichment amounts to nothing more than a shameless effort to rewrite the NPT unilaterally.  And this brings us to our second point about Sherman’s Senate Foreign Relations Committee testimony. 

Sherman claims that “It has always been the U.S. position that Article IV of the Nuclear Non-Proliferation Treaty does not speak about the right of enrichment at all [and] doesn’t speak to enrichment, period.”  But, in fact, the United States originally held that the right to peaceful use recognized in the NPT’s Article IV includes the indigenous development of safeguarded fuel-cycle capabilities.  In 1968, as America and the Soviet Union, the NPT’s sponsors, prepared to open it for signature, the founding Director of the U.S. Arms Control and Disarmament Agency, William Foster, told the Senate Foreign Relations Committee—the same committee to which Sherman untruthfully testified last month—that the Treaty permitted non-weapons states to pursue the fuel cycle.  We quote Foster on this point:   “Neither uranium enrichment nor the stockpiling of fissionable material in connection with a peaceful program would violate Article II so long as these activities were safeguarded under Article III.”  [Note:  In Article II of the NPT, non-weapons states commit not to build or acquire nuclear weapons; in Article III, they agree to accept safeguards on the nuclear activities, “as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency.”] 

Thus, it is a bald-faced lie to say that the United States has “always” held that the NPT does not recognize a right to safeguarded enrichment.  As a matter of policy, the United States held that that the NPT recognized such a right even before it was opened for signature; this continued to be the U.S. position for more than a quarter century thereafter.  It was only after the Cold War ended that the United States—along with Britain, France, and Israel—decided that the NPT should be, in effect, unilaterally rewritten (by them) to constrain the diffusion of fuel-cycle capabilities to non-Western states.  And their main motive for trying to do so has been to maximize America’s freedom of unilateral military initiative and, in the Middle East, that of Israel.  This is the agenda for which Wendy Sherman tells falsehoods to a Congress that is all too happy to accept them.    

In a 32-page opinion, the leading public law barrister Jemima Stratford QC raises a series of concerns about the legality and proportionality of GCHQ's work, and the lack of safeguards for protecting privacy.

The opinion notes that the UK has not adopted the doctrine of "anticipatory self-defence" in the same way as the US to provide legal cover for drone strikes in countries where it is not involved in an international armed conflict."Accordingly, in our view, if GCHQ transferred data to the NSA in the knowledge that it would or might be used for targeting drone strikes, that transfer is probably unlawful," the advice states."The transferor would be an accessory to murder for the purposes of domestic law … We consider that, pursuant to the transfer, the agent is likely to become an accessory to murder."Watson said he would be submitting the legal opinion to the parliamentary intelligence and security committee, which is undertaking an inquiry into mass surveillance."MPs now have strong independent advice questioning the legality of major UK intelligence programmes," he said.

The advice concludes: "In short, the rules concerning communications data are too uncertain and do not provide sufficient clarity to be in accordance with the law … we consider the mass interception of communications via a transatlantic cable to be unlawful, and that these conclusions would apply even if some or all of the interception is taking place outside UK territorial waters."Leaving decisions about whether data can be shared with agencies abroad to the "unfettered discretion" of ministers is also a probable breach of the convention, the advice warns.

"First, the transfer of private data is a significant interference with an individual's article 8 rights. That interference will only be lawful when proportionate."Secondly, the ECHR has held on more than one occasion that surveillance, and the use of surveillance data, is an area in which governments must conduct themselves in a transparent and 'predictable' manner. The current framework is uncertain: it relies on the discretion of one individual."Thirdly, on a pragmatic level,there is a real possibility that the NSA might function as GCHQ's unofficial 'backup' service. If GCHQ is not entitled to hold onto data itself, it might transfer it to the NSA. In time, and if relevant, that data might be transferred back to GCHQ. Without strong guidelines and scrutiny, the two services might support each other to (in effect) circumvent the requirements of their domestic legislation."The opinion adds: "If GCHQ transfers communications data to other governments it does so without any statutory restrictions. Such transfers are a disproportionate interference with the article 8 rights of the individuals concerned. There are no restrictions, checks or restraints on the transfer of that data."

At its most extreme, the advice raises issues about the possible vulnerability of staff at GCHQ if it could be proved that intelligence used for US drone strikes against "non-combatants" had been passed on or supplied by the British before being used in a missile attack."An individual involved in passing that information is likely to be an accessory to murder. It is well arguable, on a variety of different bases, that the government is obliged to take reasonable steps to investigate that possibility," the advice says.

"If ministers are prepared to allow GCHQ staff to be potential accessories to murder, they must be very clear that they are responsible for allowing it. We have seen a step change in mass covert surveillance and intelligence gathering, underpinned on dubious legal grounds and with virtually no parliamentary oversight. "The leadership of all the main parties should stop turning a blind eye to a programme that has far-reaching consequences around the globe."

International law with regard to the situation in Ukraine is difficult and subject to interpretation rather than regulation. On one hand there is the principal of non-interference into internal affairs which has been undermined, practically by financing policy groups and NGOs and legally by constructs such as the “responsibility to protect”. One the other hand there is the principle about the invulnerability of national borders. This principle, on the other hand, is being contradicted by the equally valid right to self-determination as seen in the Crimean referendum and Crimea’s accession into the Russian Federation or the 2014 referendum on Scottish independence. International law is, on other words, highly subjective and based on policy and  constructs about apparent “legitimacy” rather than legality and law.

Experts warn about the risk of unwanted nuclear war. Several analysts would note that the deterioration in relations between NATO and Russia poses an acute risk for a military escalation which could include the use of nuclear weapons and escalate into a conflict of global reach regardless whether it is wanted or unwanted. During a two-day symposium at the New York Academy of Medical Sciences on February 28 and March 1, 2015, several internationally renown experts warned about the risk about a potential escalation of the situation in Ukraine and the involvement of nuclear weapons due to mutual distrust and nuclear forces being on hair-trigger alert.

Writing in the book’s introduction, Assange proposes that the diplomatic cables provide “the vivisection of a living empire, showing what substance flowed from which state organ and when”. Assange notes in his introduction that academic disciplines outside international relations, and where career aspirations do not go hand in hand with patronage by government institutions, have voluminous coverage of the cables. But the ISA does not accept submissions citing WikiLeaks’ material. Although ISA executive director Mark Boyer denies that the association has a formal policy against publishing WikiLeaks’ material, he says that journal editors have discussed the implications of publishing material that is legally prohibited by the US government. According to Gabriel J. Michael, author of the Yale Law School paper Who’s Afraid of WikiLeaks? Missed Opportunities in Political Science Research, the ISQ has adopted a “provisional policy” against handling manuscripts that make use of leaked documents if such use could be interpreted as mishandling “classified” material. According to an ISQ editor quoted in Michael’s paper, this policy prohibits direct quotations as well as data mining, and was developed in consultation with legal counsel. Stating that editors are currently “in an untenable position”. According to the editor, ISQ’s policy will remain in place pending broader action from the ISA, which publishes several other disciplinary journals. The ISA and ISQ concerns about handling material that the US government forbids —  which include WikiLeaks’ cables —  amount to throwing the baby out with the bathwater. The cables go into the heart of an empire, and reflect on matters that affect everyone.

Without WikiLeaks, the public would still be in the dark about the Trans-Pacific Partnership “agreement” currently being negotiated. The treaty aims to rewrite the global rules on intellectual property rights and would create spheres of trade which would be protected from judicial oversight. Such agreements have the potential to change the fabric of how states operate, and the leaked cables shed light on how states negotiate significant treaties, aiming to keep citizenship participation in politics out. Where academia bans the use of important leaked documents the public loses out.

check out earlier coverage of these issues at Just Security. You can read a statement on the US change in position by Amnesty International USA here, and by the ACLU here.