Need for new nuclear containment tools

(My thanks to IntLawGrrls for the opportunity to contribute a 2-part series of guest posts. Part 2 is below; Part 1, published yesterday, is here)

Just announced are the terms for the next round of talks on Iran's nuclear technology. They are set for next Monday and Tuesday in Geneva, Switzerland, between:
► Catherine Ashton, the European Union's High Representative for Foreign Affairs and Security Policy, formerly an officer of the London-based Campaign for Nuclear Disarmament; and
► Dr. Saeed Jalili, secretary of Iran's Supreme National Security Council and its lead nuclear negotiator.
As demonstrated in my post yesterday, to date these negotations have been marked by lack of trust on all sides. Debate remains, however, to what extent the lack of trust can generate legal implications.
Some argue that without a ‘smoking gun’, there is no ground to act against Iran. They warn of the danger in relying on strategic assessment, which may prove to be misguided, as was the case of Iraq in 2003.
Others emphasise the severity of the risks, on the one hand, and the ability of proliferators to hide the evidence, on the other hand. They agree that comprehensive and logical assessments regarding nuclear proliferation need to include as much hard evidence as possible; nonetheless, they contend that in the interest of non-proliferation, such assessments should not be held hostage to the absence of such evidence. (credit for above logo from Iran's atomic energy site)
No less significant is the question of how to deal with a state once it is identified as a suspected proliferator.
Clearly the regime established by the 1968 Nuclear Non-Proliferation Treaty is ill-equipped to deal with cases such as Iran’s.
The provisions of the treaty are not geared to seeking out and stopping suspected defectors; moreover, these provisions lack precise criteria for dealing with such suspicions when they arise. Drafters devoted little attention to the prospect that a state might develop an interest in becoming a nuclear-weapon state without first withdrawing from the treaty.

(credit for map showing states with nuclear weapons in red, treaty-established Nuclear Free Zone in blue, and nuclear sharing states in orange, and states that are none of the above yet members of the treaty) In a world of new instabilities, where nuclear technology is increasingly accessible, the treaty is failing to achieve containment. The treaty's consensual regime was established during the Cold War, which encouraged adherence to the treaty and to the safeguards regime of the International Atomic Energy Agency. Some argue that this consensual regime is not only increasingly ill-fitted to address nuclear weapons proliferation risk, but actually enhances the incentive to proliferate.
Various initiatives and proposals attempt to escape this impasse.
Some proposals would try to strengthen the existing non-proliferation regime from the inside, both substantively and institutionally.
Other proposals move away from consensual mechanisms aimed at encouraging compliance, and towards effective enforcement. Even initiatives related directly to strengthening compliance with safeguard agreements invest in non-consensual mechanisms for strengthening the existing regime. Examples include:
► Generic Security Council resolutions to address the case of a state that has been found by the Agency to be deliberately in non-compliance with its safeguards undertakings; or
► Declaration that nuclear weapons proliferation constitutes a ‘threat to the peace’, thereby engaging the sanctions regime of U.N. Charter Chapter VII in every case of non-compliance with the Atomic Energy Agency.
None of these proposals, however, addresses what is perhaps the greatest obstacle to success of the Non-Proliferation Treaty regime: its unique formal asymmetry and the legacy of international practice. Whatever the legal extent of the obligation to disarm, undoubtedly the political legitimacy of the regime is being undermined by what is perceived as abuse of status by the 5 treaty-recognized nuclear weapons states, Britain, China, France, Russia, and the United States.
It remains to be seen whether effective legal tools will be adopted in a timely manner to prevent Iran’s nuclear programme from maturing into a nuclear threat, or whether international law will continue to play a merely responsive role to that threat.

On November 21

On this day in ...
... 1990 (20 years ago today), at the same summit (left) discussed in a few days ago in this post, global leaders adopted the Charter of Paris for a New Europe. The charter redirected OSCE, the Organization for Security and Co-operation in Europe, to correspond to a new geopolitics. (photo credit) As WikiPedia explains:

In effect, the Paris Summit was the peace conference of the Cold War: Perestroika had ultimately put an end to the ideological and political division of the Iron Curtain. Pluralist democracy and market economy were together with international law and multilateralism seen as the victors, and as the common values and principles of national and international conduct that now ruled from Vancouver to Vladivostok.

(Prior November 21 posts are here, here, and here.)

On November 19

On this day in ...
... 1990 (20 years ago today), at a summit meeting in Paris, leaders of more than a score of countries signed an agreement billed as "the end of the cold war that divided East and West for more than four decades." The agreement between the member states of NATO, the North Atlantic Treaty Organization, and those of the Warsaw Pact promised to destroy "tens of thousands" of "nonnuclear weapons." Signing along with U.S. President George H.W. Bush was Soviet President Mikhail S. Gorbachev. (credit for photo of the 2 leaders at a 1989 Malta summit) At the signing in Paris, the latter proclaimed:

'What a long way the world has come!'

A thought worth pondering given the current, new uncertainties about the fate of New START, the disarmament pact we've been tracking (prior IntLawGrrls posts).

(Prior November 19 posts are here, here, and here.)

On November 16

On this day in ...
... 1945 (65 years ago today), 88 German scientists, most of whom had served in the Nazi regime, secretly were brought to the United States in order to help with U.S. rocket technology production. The admission came despite controversy because of U.S. fears that the Soviet Union was "also utilizing captured German scientists for the same end," given the destructive success of German rockets like the "V-1 Flying Bomb" above left. As noted by this site:

The situation pointed out one of the many ironies connected with the Cold War. The United States and the Soviet Union, once allies against Germany and the Nazi regime during World War II, were now in a fierce contest to acquire the best and brightest scientists who had helped arm the German forces in order to construct weapons systems to threaten each other.

(Prior November 16 posts are here, here, and here.)

On April 18

On this day in ...
... 1989, Hilde Benjamin (right), the 1st woman to serve as East Germany's Minister of Justice, died, 7 months before the fall of the Berlin Wall that would precipitate the reunion of her country with its western counterpart. Born Hilde Lange 87 years earlier, she became a lawyer, married Georg Benjamin (brother of the philosopher Walter Benjamin), and joined the Communist Party. As a judge in the era when East Germany lay within the Soviet bloc, she presided over many show trial convictions, and so earned the nickname "Blutige Hilde"; that is, "Bloody Hilde."

(Prior April 18 posts are here, here, and here)

Coping with legal pluralism: French & American approaches to the transnational legal world

(Part 1 of a 3-part guest post by Mireille Delmas-Marty)

From the viewpoint of tradition in France, or any continental European state, the term "legal pluralism" seems to be a kind of monster -- a chimera, if you will. That is because the 2 words that make up the term usually carry opposite meanings:
► "Pluralism" implies differences, dispersion, and free movement, interaction and evolution; in contrast,
► "Legal" leads us to think in terms of a unified, hierarchical, static structure.
But the world is not static, and so we must take up the challenge of overcoming this contradiction. We must change our minds just as our legal history changed. It changed at the end of World War II, when a European legal order emerged, and then again since the end of Cold War, when the so-called globalisation of law accelerated. Changes occurred in, to name a few areas:
► Human rights law with the adoption of the Universal Declaration of Human Rights and subsequent instruments;
► Trade law with the establishment of the World Trade Organisation;
► Environmental law with the 1997 Kyoto Protocol and perhaps the Copenhagen process; and
► Criminal law with the International Criminal Court.
The emergence of the European legal conception has deep influence, one that perhaps makes it easier for the French to accept and join this transnational legal world.
On initial comparison, similarities between the legal system of Europe and the federal system of the United States jump to the fore. The distribution of powers between European member states and the community is as sensitive as in any federal system. Power is transferred to the community whenever member states in Europe are unable to comply with community objectives. That practice -- an implementation of the principle of subsidiarity -- is paired with that of proportionality. This latter norm is stated in Article 5 of the Lisbon Treaty as follows:

"[T]he content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties."

The effect of proportionality on European integration is like that of a dimmer switch on a lamp: integration is increased when member states do not attain European Union objectives, and decreased when they do.
Despite those similarities, the differences between the European and the U.S. systems are critical.
They differ, for example, in history.
For centuries, Europe was constructed as separate states, independent in politics, language, and legal system, while America was founded as a federal republic with a national as well as state governments.
The 2 systems differ as well in contemporary practice.
Although we tend to think of the United States as more unified, in some areas this is not the case. With respect to the death penalty, for example, unification appears more complete in Europe, pluralism more present in the United States. But in most areas, it’s the other way around: pluralism appears much more complex in Europe, where the system is both bipolar and multipolar:
► Bipolarity is symbolised by the coexistence of 2 European supreme courts. For the Council of Europe, comprising 47 states including Russia and Turkey, there is the European Court of Human Rights in Strasbourg. For the subset of 27 states that make up the European Union, there is also the European Court of Justice in Luxembourg. By tradition the latter focuses on the market, the former on human rights.
► Multipolarity is preserved in each of these bipolar regimes, by different legal techniques. In the Strasbourg system there is, of course, the doctrine of margin of appreciation. In the Luxembourg system, member states may opt out of certain aspects of European legal integration. Thus the December 2009 entry into force of the Charter of Fundamental Rights of the European Union (prior IntLawGrrls post) may not apply in Britain, Poland, or the Czech Republic, each of which has obtained the ability to opt out of that instrument.
It may seem difficult to accept such a wide range of pluralism within a federal system.
That is why, in my opinion, the European legal order is situated halfway between reproducing a federal legal system and anticipating a global legal world. Such a global legal world should constitute neither the complete fusion nor the complete separation of diverse legal systems. It should, rather, constitute what I call "ordering pluralism." Thus the title of my new book: Ordering Pluralism (2009) (prior IntLawGrrls post).
I use "ordering," rather than "ordered," pluralism in order to stress the movement rather than the model, the process rather than the result.
From the vantage point of ordering pluralism, I would say that the questions asked in the French and American approaches to law are the same:
► How does transnational law develop? Is it a law among nations? A law beyond single nations?
► Where does transnational law develop? At which level? National? Regional? Global?
► When does transnational law develop?
At this point in time, the answers each approach gives are somewhat different. Yet one can expect that over time they may converge.

(Still to come in this 3-part guest post: Part 2, on how transnational law develops, and Part 3, on where and when it develops)

On January 10

On this day in ...
... 1910 (100 years ago today), a daughter, Galina Ulanova (right), was born to 2 dancers in St. Petersburg, Russia. She made her début as a ballerina at age 18 in the city of her birth, by then called Leningrad, and would become the Soviet Union's 1st prima ballerina. (photo credit © Bolshoi Ballet) Dancing in Britain in 1956, "she astonished critics and fans alike with her performances as Juliet and Giselle." Her visit to the United States 2 years later, however, provoked a political spat with the man who was then The New York Times' dance critic:

Miss Ulanova performed most of the greatest roles in classical ballet, including the leads in 'Giselle,' 'Swan Lake,' 'Cinderella' and 'Sleeping Beauty.' Such was her power that when Mr. Martin criticized -- mildly -- her performance in 'Swan Lake' during the 1959 New York tour, Pravda responded the next day by accusing him and The Times of being 'bent on continuing the cold war.'

Ulanova, depicted below in clips from her performances of "Giselle" and "Romeo and Juliet," died in Moscow in 1998.




(Prior January 10 posts are here and here.)

On December 22

On this day in ...
... 1989 (20 years ago today), the Brandenburg Gate opened so that all Berliners could join together for the 1st time in nearly 3 decades;
"[t]housands of people spilled on to the city's streets cheering in the pouring rain to watch the historic ceremony which effectively end[ed] the division of East and West Germany." Notable among the many items published this autumn to commemorate the 20th anniversary of Germany's reunification is this commentary, in which Dr. Mary Elise Sarotte (left), Professor of International Relations at the University of Southern California, Los Angeles, explained reasons for continuing tensions between Russia and other countries over the ensuant enlargement of the North Atlantic Treaty Organization.


(Prior December 22 posts are here and here.)

On November 24

On this day in ...
... 1989 (20 years ago today), the leadership of Czechoslovakia -- 2 dozen members of the Communist Party who'd "called in the Soviet tanks in 1968 to crush the 'Prague Spring' reformers," "resigned to make way for democratic changes," the BBC reported. The move came after the party's leader acknowledged "underestimating the force of the pro-democracy movement." A month later a Czech dissident writer, Václav Havel -- shown at center in this 1988 photo (credit) -- became the country's President.

(Prior November 24 posts are here and here.)

On November 18

On this day in ...
... 1964 (45 years ago today), a New York Times writer reported the easing of food shortages, which had spurred riots in India's Kerala state, in dark orange at right. The shortages had resulted from the government's decision earlier in the month to ration food supplies -- the 16 million inhabitants of the southwestern Indian state became "'panicky,' because rice, their chief food, had disappeared from the markets." The failure of the rationing system also had provoked black-market trading, followed by "summary trials" for persons suspected of such trading. In a marker of that Cold War era, the Times informed its readers that Kerala was a "Communist stronghold."

(Prior November 18 posts are here and here.)

On September 19

On this day in ...
... 1959 (50 years ago today), in what The New York Times said "probably was the first time that Disneyland had figured as a controversial subject in Soviet-United States relations," Soviet Premier "Nikita S. Khrushchev's temper exploded" when, on arriving in Los Angeles from New York, "he was told he could not go to Disneyland because security officials could not guarantee his safety." Khruschev questioned this Cold War-era incident:

'What is it? Is there an epidemic of cholera or something? Or have gangsters taken hold of the place that can destroy me?'

The then-4-year-old theme park (image credit) already had accommodated 15 million visitors, including dignitaries like U.S. President Harry S. Truman, without incident.

(Prior September 19 posts are here and here.)

On July 24

On this day in ...
1959 (50 years ago today), during a visit to an American exhibition in the Soviet Union, U.S. Vice President Richard M. Nixon (near left) got into a tense discussion with Soviet leader Nikita Khrushchev (far left) about the merits of communism versus capitalism; their dispute became known as the "kitchen debate." (photo credit) The exhibition, which mirrored a Soviet exhibit that had taken place in the United States earlier that year, was intended to show Soviets facets of American life, such as homes, fashions, and cars. The discussion became heated after the 2 leaders were shown into the American model kitchen and Nixon said that even the washing machines, toasters, and juicers on display were common purchases American workers could afford, implying that the new gadgets were not readily available in the Soviet Union. Khrushchev replied,

'We have all these things in our new flats."

1920, Bella Abzug (right), American feminist, lawyer and politician, was born in the Bronx, New York. In the 1970s, Abzug served as the representative for the West Side of Manhattan for 3 Congressional terms. On her 1st day as a representative she called for an immediate withdrawal from Vietnam. She fought for national health insurance, money for day care centers, and housing. She cosponsored the Equal Rights Amendment, and she was one of the 1st members of Congress to call for the impeachment of President Richard M. Nixon. In the words of a colleague,

'She was one of the most exciting, enlightened legislators that ever served in the Congress.'

After leaving the House in January 1977, Abzug worked for women's rights for another 20 years, founding an international women's group that worked on environmental issues. She died on March 31, 1998. (photo credit)

(Prior July 24 posts are here and here.)

On June 30

On this day in ...
… 1984 (25 years ago today), Lillian Hellman (right) died in Tisbury, Massachusetts. The playwright's best-known works include The Children's Hour (1934), The Little Foxes (1941), and Toys in the Attic (1959). Throughout her career, Hellman openly held left-wing political views and was active in the campaign against the growth of fascism in Europe. As a result, she was subpoenaed to appear before the House Un-American Activities Committee in 1952. Pressured to reveal the names of associates in the theater who might have Communist associations, she refused:

'To hurt innocent people whom I knew many years ago in order to save myself is, to me, inhuman and indecent and dishonorable. I cannot and will not cut my conscience to fit this year's fashions, even though I long ago came to the conclusion that I was not a political person and could have no comfortable place in any political group.'

(credit for photo of paperback reissue of Hellman's 1969 memoir, An Unfinished Woman)
… 1992, Margaret Thatcher (below left) joined the House of Lords following the bestowal upon her of a life peerage. In 1959, Thatcher had been elected a Member of Parliament. She proceeded to become Britain's Prime Minister from 1979 to 1990 and a member of the House of Commons from 1990 to 1992. (photo credit) Thatcher used her appointment to the House of Lords to continue to make her views heard, particularly on European issues. In 1992, Thatcher called for the North Atlantic Treaty Organization to stop the Serbian assault on Goražde and Sarajevo as a means to end ethnic cleansing and to preserve the Bosnian state. She has also made a series of speeches criticizing the Maastricht Treaty.

(Prior June 30 posts are here and here.)

On June 25

On this day in ...
… 1950, the Korean War began with the crossing of the 38th parallel into South Korea by North Korean troops. In 1945, the United States and the Soviet Union had decided to dismantle the Japanese colonial system on the peninsula by dividing it into 2 occupation zones, American and Soviet. It is said that U.S. intelligence judged that the north could not take over the south without Soviet assistance and that the Soviets would not provide such assistance. But North Korea's Kim Il-sung, who was committed to unifying the country under his rule,managed to secure assent to military action from Soviet leader Joseph Stalin. The war that followed would devastate Korea, lead to a large expansion of the U.S. armed forces and America’s military presence around the world, and frustrate many on both sides by ending in an armistice that left the peninsula still divided. As we have posted, this conflict remains in a state of ceasefire-without-final-peace-treaty. (credit for photo of South Korean and U.N. troops withdrawing behind the 38th parallel)
… 1954 (55 years ago today), Judge Sonia Sotomayor (left) of the U.S. Court of Appeals for the Second Circuit and, as we've posted, the nominee for appointment to the Supreme Court, was born in the Bronx, New York. (photo credit) If confirmed, she would be the Court's 111th justice, its 1st Latina and its 3d woman. At the age of 8, Sotomayor was diagnosed with Type 1 diabetes. Her father, a factory worker with a 3d-grade education who did not speak English, died a year later. Her mother raised her and her younger brother, Juan, now a physician. Her mother, a nurse who worked 6 days a week and whom the judge has described as her biggest inspiration, stressed the value of an education, buying Encyclopædia Britannica for her children.

(Prior June 25 posts are here and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The Cold War has ended this day in San Pedro Sula. We begin a new era of fraternity and tolerance.'

-- Manuel Zelaya at a meeting of the Organization of American States in that town in the country of which he is President, Honduras. There yesterday national foreign ministers voted to revoke Resolution VI (quoted on page 12), which had effected the explusion of Cuba from OAS membership in 1962. (For another important development at that meeting, see post above.) As set out in the Spanish text, yesterday's resolution resolved that Cuba could resume participation in the OAS following "a process of dialogue initiated by the Government of Cuba and conducted in conformity with the practices, propositions and principles of the OAS." Though U.S. efforts to attach more conditions had failed, "[t]he decision was taken by consensus, meaning the United States accepted it," in the words of the Associated Press.

On June 2

On this day in ...
... 1924 (85 years ago today), President Calvin Coolidge signed into law the Indian Citizenship Act, then posed with Osage men for the photo at right, taken on the White House lawn. (credit) Until that day Native Americans had been admitted to citizenship in the United States of America only by marriage to white men, through military service, or by a few other special means; they were not considered citizens by birth, nor permitted to citizenship through naturalization. The new statute provided:

'Be it enacted by the Senate and house of Representatives of the United States of America in Congress assembled, That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.'

... 2005, Melita Norwood died at age 93. The Londoner had led a life unnoticed until 1999, when it was discovered that she'd been a Soviet spy for more than 4 decades. Norwood (left) had joined the Communist party in 1936. (photo credit) The she started working a clerk and a secretary for a metallurgical firm that worked on Britain's nuclear program, "and was soon passing research data to the NKVD, the Soviet spy network and predecessor of the KGB." An octogenarian, widow, and great-grandmother by the time she was exposed, she said her only regret was being caught:

'I thought I’d got away with it.'

(Prior June 2 posts are here and here.)

On May 31

On this day in ...
... 1991, at the Portuguese Foreign Ministry in Lisbon, an accord ending 16 years of civil war in Angola was signed by the country's President, Jose Eduardo dos Santos, and Jonas Savimbi, leader of the rebel National Union for the Total Independence of Angola, known by its acronym UNITA. The New York Times reported that the signing "fits in with ... efforts to resolve regional rivalries" of the Soviet Union, which had supported Angola's government, and the United States, 1 of 2 countries from which "rebels took their aid and their cue." The other, according to The Times, was South Africa.
... 1971, Sandra Ellen Oxner, who'd received LL.B and LL.M degrees from Dalhousie Law School in Halifax, was appointed a judge of the Nova Scotia Magistrate's Court. Then 29 years of age, she became the 1st woman to be appointed to the judiciary in that Canadian Province. She's the founding Chair of a nongovernmental organization located at Dalhousie, the Commonwealth Judicial Education Institute, which provides educational programs for members of courts and tribunals. She's also a consultant on judicial education and reform in places as varied as Ukraine, Russia, Yemen, West Bank Gaza, Uganda, Sierra Leone, Trinidad, and Bangladesh.

(Prior May 31 posts are here and here.)

On March 13

On this day in ...

... 1567, German mercenaries allied with Margaret of Parma (1522-86) (left), appointed as the Catholic regent of the Netherlands by her half-brother, the Spanish King Phillip II, defeated Calvinist rebels at the Battle of Oosterweel. Her brother soon would replace her with a duke even less tolerant of Protestantism.

... 1961, at the Old Bailey in London, Ethel Gee (near right below; credit), a British civil servant; homemaker Helen Kroger (far right; credit) and her husband, another civil servant; plus 2 other Britons went on trial on charges that they plotted to pass classified information to the Soviets in violation of the Official Secrets Act. The trial of the so-called Portland Spy Ring lasted about two weeks, during which the Krogers were determined to be fugitives from the Rosenberg espionage case in the United States.

(Prior March 13 posts are here and here.)

On January 13

On this day in ...

... 1993, a criminal court in Berlin announced its abandonment of the trial of former East German leader Erich Honecker, who was 80 years old an suffering from terminal liver cancer. Honecker had been charged with "manslaughter over the deaths of defectors fleeing by way of the Berlin wall," which separated the city during the Cold War. Soon after the trial was aborted, Honecker flew to Chile, where he died a year and a half later. (credit for 1986 photo of Berlin Wall)

... 1933, President Herbert Hoover vetoed a bill to give the Philippines independence from the United States. Within hours the House of Representatives overrode the veto; however, the Senate did not so act, and so the bill failed. In his veto message, the New York Times reported, Hoover (right) suggested "that a plebiscite for freedom be deferred for fifteen or twenty years" in the Philippines, lest "'economic and social chaos'" ensue.

On December 20

On this day in ...
... 1963 (45 years ago today), the Berlin Wall was opened for the 1st time in more than 2 years. Thousands of West Berliners streamed eastward after East German guards opened the Wall (right) (photo credit) at 5 checkpoints, a move aimed at allowing 1-day holiday visits among relatives in the divided city.
... 1989, U.S. troops invaded Panama City, Panama, in what was described as a "military operation ... designed to topple the Government of Gen. Manuel Antonio Noriega" (left), who'd been accused of major drug trafficking. Noriega would be caught within a week at the Vatican embassy where he'd sought sanctuary. As we've posted, he eventually was convicted in federal court, served his federal sentence. He remains in a U.S. prison pending litigation of requests for his extradition.