Prof. Vik Kanwar Selected Publications 2002-2011 » w . Vik Kanwar, “Post-Human Humanitarian Law: The Law of War in the Age of Robotic Warfare,” Vol. 2, HARVARD NATIONAL SECURITY JOURNAL (2011) . Vik Kanwar and Prabhakar Singh, “Editors’ Foreword: The Globalization of Legal Knowledge,” Vol. 2, JINDAL GLOBAL LAW Review (2010) . Vik Kanwar, “Two Crises of Confidence: Securing Non- Proliferation and the Rule of Law through Security Council Resolutions,” Vol. 34, OHI0 NORTHERN UNIVERSITY LAW REVIEW (2009) . Vik Kanwar, “Review Essay: Giorgio Agamben, State of Exception,” Vol. 4, INTERNATIONAL. JOURNAL OF CONSTITUTIONAL Law [I-CON] (2006) . Vik Kanwar, “International Emergency Governance: Fragments of A Driverless System,” Vol. 12, CRITICAL SENSE: BERKELEY INTERDISCIPLINARY JOURNAL OF POLITICAL THEORY (2004) Vik Kanwar, “Capital Punishment as “Closure”: Limits of a Victim-Centered Jurisprudence,” Vol. 27, NEW YORK UNIVERSITY REVIEW OF LAW AND SOCIAL CHANGE (2002)REVIEW ESSAY Post-HUMAN HUMANITARIAN LAW: ‘THE LAW OF WAR IN THE AGE OF ROBOTIC WEAPONS Vik Kanwar’ REVIEWING: P.W. SINGER, WIRED FoR War: THE ROBOTICS REVOLUTION AND CONFLICT IN THE, 21st Centuay (Penguin Press 2009) RONALD ARKIN, GOVERNING LETHAL BEHAVIOR [N AUTONOMOUS ROBOTS (Chapman & Hall 2009) WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED ConrLict (Oxford University Press 2009) ARMIN KRISHNAN, KILLER ROBOTS: THE LEGALITY AND ETHICALITY OF AuTONOMOUS WEAPONS (Ashgate Press 2009) Introduction Over the past two years, as the use of *warbots” (also called robotic weapons, drones, unmanned combat vehicles [UCVs], or unmanned aerial vehicles [UAVs] has increased and become visible in combat zones including Iraq, Pakistan, and Afghanistan, a scholarly “Assistant Professor, Jindal Global Law School (JGLS). 0.P. Jindal Global University, National Capital Region of Delhi, India. Assistant Director, Centre on Public Law and Jurisprudence (CPU). LLLM., New York University School of Law (2001); /.0., Northeastern University School of Law (2000), The author is a member of the New York Bar, and has served as an expert-consultant to the Control Arms campaign and to the Program on Humanitarian Law and Policy Research at Harvard University. The author would like to thank Professors Kenneth Anderson, Priya S. Gupta and Prabhakar Singh, research assistants Gaurav Mukherjee and Deepaloke Chatterjee, and various participants at the 2011 Emory-ICRC IHL Workshop, for valuable comments. Copyright © 2011 by the President and Fellows of Harvard College and Vik Kanwar.2 Harvard National Security Journal / Vol. 2 literature has emerged analyzing the legal implications of these ‘weapons.! The regulation of these weapons — once a topic for obscure academic theses? — has become a topic of mainstream media attention? This essay will review four books released last year that wack these developments. P.W. Singer's book Wired for War: The Robotics Revolution and Conflict in the 21st Century has been the most popular and influential of these four works. Singer’s book limits explicit, discussion of International Humanitarian Law (IHL) issues to a single short chapter, but this gap can be filled by the three other recent academic works described in this essay, all of which explore weapons law. The application of IHL to robotic weapons is discussed generally in William H. Boothby’s Weapons and the Law of Armed Conflice> and in more detail in Armin Krishnan’s Killer Robots: Legality and Ethicality of Autonomous Weaponsé and Ronald Arkin's Governing Lethal Behavior in Autonomous Robots? " The United States has been the foremost user of the existing generation of robotic weapons. The position of the US is that IHL is not the only relevant body of law in this context, but that drone strikes with a non-state actor can be justified independently Under the law of self-defense. See Harald Honglu Koh, Legal Adviser, U.S. Dep't of State, The Obama Administration and International Law, Address Before the Annual Meeting of ‘the American Society of International law (Mar. 25, 2010}, avaliable ot htepr//wurw. state gov/s//releases/remarks/139119.htm. * Earlier works on this topic have been largely confined to specialty journals and unpublished theses. See, e.g., John. J. Klein, The Problematic Nexus: Where Unmanned Combat Ar Vehicles and the Low of Armed Conflict Meet, Ain & Space POWER J-~CHRONICLES ‘Owune J. (2003); Erin A. McDaniel, Robot Wars: Legal and Ethical Dilemmas of Using Unmanned Robotic Systems In 21st Century Warfare and Beyond (Dec. 12, 2008) (MAMAS. Thesis, U.S, Army Command and General Staff College) See, eg, John Barry & Evan Thomas, Military: The UAV Revolution — Up in the Sky, An Unblinking Eye, NEWSWEEK, June 9, 2008; US Werned on Deadly Drone Attacks, BBC NEWS, Oct, 28, 2009, itp://news,bb¢.co.uk/2/hi/8329612.sim; PETER BERGEN & KATHERINE TIEDEWANN, NEW AMERICA FOUNDATION, THE YEAR OF THE DRONE, (2010), battp://counterterrorism,newamerlca.net/sites/newamerica,net/files/policydocs/bergent| edemann2.odf; Jane Mayer, The Predator Wr, NEW YORKER, Oct. 26, 2009, batepi//wurw.newvorker.com/reporting/2009/10/26/091026fa fact_maver?orintable= * PAW, SINGER, WiRED FOR WaA: THE ROBOTICS REVOLUTION AND CONFLICT In THE 2ST CENTURY (2009) [hereinafter Since}. * WILUaM H, BOoTHAY, IVEAPONS AND THE LaW OF ARMED CONFLICT (2008) [hereinafter BOOTH]. "Awan KRISHNAN, KILER ROBOTS: LEGALITY AND ETHICALITY OF AUTONOMOUS WeaPons (2008) hereinafter KesHnani, ” RONALD ARKIN, GOVERNING LETHAL BEHAVIOR IN AUTONOMOUS ROBOTS (2009) [hereinafter ARwinl.2011 / Post-Human Humanitarian Law ‘Taken together, the four books highlight the tension between autonomy and accountability in robotic warfare, tracking fundamental changes taking place in the field of IHL. This Review Essay argues that from the point of view of IHL, the concern is not the introduction of robots into the battlefield, but the gradual removal of humans. In this, way the issue of weapon autonomy marks a paradigmatic shift from the so-called “humanization” of IHI.° “Humanization” already reflects two senses of “humanity” distinguished by Henri Meyrowitz: (1) humanity understood as the “defining characteristic of the human race” (menschheit), and (2) humanity understood as “a feeling of compassion towards other human beings” (menschlichkeit).? Indeed, humanitarian Jaw has increasingly connected humane treatment and human rights, such that menschheit is safeguarded through menschlichkeit.° If the role of human combatants recedes, will the respect for humanity be less in either sense? In 2 “post-human” context of war, where robots take over combat functions, will the connection between these two notions ofhumanity persist in our overall conception of IHL? IL. Wired for War In Wired for War, P.W. Singer describes how robotic weapons have been developed, anticipated, or reflected in the realms of popular culture, ethics, science fiction, technology, futurism, military strategy, economics, politics, and law. Unlike his earlier book Corporate Warriors,4t an academic study of private military companies, Wired for War is an accessible, interview-based work. But in keeping with his previous work, Singer pursues the theme of a “breakdown of the traditional model of who was supposed to be at war,” but manages to give a balanced treatment of controversial developments. He manages to avoid raising alarm at the mere fact of professional soldiers being supplanted by proxies (robots or contractors), though he acknowledges "Theodor Meron, The Humonization of Humanitarian Law, 94 At. INT'L L-239 (2000). ® REN PROVOST, INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW 5~6 (2002) (citing Henri Meyrowitz, R’eflexions sur le fondement du droit de Ja guerre, in STUDIES AND ESSAYS ON INTERNATIONAL HUMANITARIAN LAW AND RED CROSS PRINCIPLES IN HONOUR OF JEAN PICTET 419, 426~ 1 (Christophe Swinarski ed, 1984). iy *.W, SiuceR, CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED MILITARY INDUSTRY (2003)4 Harvard National Security Journal / Vol. 2 popular anxieties of “losing control.” While owing his enthusiasm for the topic to fictional precursors, Singer is measured and careful in describing the terrain of robotics as it actually exists, drawing on sources from industry, the military, academia, and politics. In the journey from science fiction space operas to the facts on the ground, the reader is reminded, for example, that the very real presence of warbots on the battlefield does not promise the excitement of Hollywood versions (e.g. Star Wars, the Terminator, or Iron Man). Instead, they are more often relegated to work that is dull and repetitive, true to the etymology of both the terms “drone” and “robot."!? Yet the most recent phase of robotic warfare has added the dimension of lethality, placing robotic technology squarely in the category of weapons (means and methods of warfare) and raising the possibility that IHL provides an appropriate framework to regulate it. In the first half of the book, Singer walks us through the science, production, economics, and politics of this technology, and we become aware of the state of its development, current capabilities, and potential uses. Throughout these encounters, Singer and his informants freely speculate on advantages and drawbacks of the technology. Can they work? Can they be controlled? If they improve the efficiency of killing, is it a good thing? What if they make 1 enemy targets more reliable, while saving civilian lives? Would the advantage to technologically superior forces be considered a violation of honorable combat, a notion that predates IHL? Will the technological benefits extend to other kinds of humanitarian activity, such as increasing the protection of civilians by robots sweeping an area for landmines or performing defensive functions? In the second half of the book, the panoply of voices gives way to Singer's own, and the questions begin to gather around a steady theme: the increasing “autonomy” of robots, or what Singer calls “taking humans out of the loop." Automation of warfare does not yet mean complete “autonomy” of robotics (this distinction will be discussed in detail fra), but rather that life and death decisions will be made on the ® sinces, supra note 4, at 66-67 (citing R.U.A, (RossUM's UNIVERSAL Roz0Ts) (1921). In the play, Karel Capek coined the word “robot,” which derived from the Czech “robota” ‘meaning “work a peasant owed a landowner” or, more generally, “drudgery.” ” jd, at 123; see generally id, ch. 6.2011 / Post-Human Humanitarian Law battlefield without direct input from humans. What is referred to as “autonomy” is not artificial intelligence capable of supplanting human responsibility; instead it is an increase in time and distance between human actions and their results. In particular, there is an assumption that agency or responsibility should be distributed as though robots are combatants rather than weapons. Singer sometimes confuses the matter by taking an overly anthropomorphic view of autonomy, treating warbots as the most irregular of “combatants.” Rather than being artificial persons, such as states or corporations, they more clearly belong to the category of weapons whose use is considered an extension of human action, as “means and methods” of combat. Just as a knife extends the reach and lethality of a hand, sophisticated weapons like warbots can be considered extensions of human action, and the primary difference is the increase in time and distance intervening between the action and result.!t Technology has already distanced soldiers spatially and temporally from the killing they cause, increasing asymmetrical safety between belligerents. Singer is right to focus on the controversy surrounding the autonomy of robots, but he fails to pursue all of the ways increasing autonomy might trouble the application of IHL to weapons systems. On one hand, the protection of one’s own soldiers is always a goal for any military, and the perception or even the reality of “safe distance” from fighting can make war more palatable to the public. Yet from the point of view of warriors’ codes, the removal of one set of combatants from a battlefield will seem less than honorable. From the point of view of the international lawyer, the concern is not asymmetry of protection, but rather that one side might be shielded from legal consequences. For a series of partially coherent reasons, the “human element” is seen as “indispensable”: for providing judgment, restraint, and ultimately responsibility for decisions. The first two of these reasons suggest that there is a risk of violating IHL when autonomous robots are employed. Singer rightly identifies the principles of discrimination and proportionality (connected to the prohibition of unnecessary suffering) as key considerations. More to the point, to increase autonomy and " MansHauL McLUKAN, UNDERSTANDING MEDIA: THE EXTENSIONS OF MAN 152 (1964) (noting that, technology in general is a prosthetic extension of the human body: “The tool extends the fist, the nails, the teeth, the arm.”). This Is true of weapons in particular, though agency Is ‘obscured with the loss of proximity.6 Harvard National Security Journal / Vol. 2 remove the human element implies two risks: (1) the loss of judgment and restraint, could lead to an increased number of indiscriminate attacks; and (2) attenuating legal accountability in combat endangers the normative framework of IHL. Even if robots are extremely accurate in their targeting, there remains the policy concern that IHL will become inapplicable or unenforceable. Many of the controversies seem to require legal clarification, and these are becoming relevant as the reality of Predator drones makes headlines daily. The question of precision — targeting the right kill and avoiding the wrong kill — is at the center of the controversy over these weapons. If the UAVs are successful it is because Predators can hover above a target for hours before and after a strike, and the more precise targeting means effective killing of combatants and lower collateral damage. A second set of issues involves the interplay between legal and technological development. Singer's conclusion is that technological development is insensitive to legal norms and weapons manufacturers are not thinking about legal regulation. This is in spite of the formal requirements under [HL that militaries must review weapons for compliance. More careful study would reveal whether this can be generalized. Given the claims about precision in targeting, it seems just as plausible that the demand for increased conformity with proportionality and discrimination norms might actually promote research and development in these technologies. The limits of Singer's book are neither with his research nor his conclusions, but with the inherent difficulties of pinning down such dynamic concerns in the form of a book. Most of his insights will be relevant for the foreseeable future, but readers of this work can be commended to a new generation of web logs and portal sites tracking these developments based on fresh research and further interviewing. And while legal frameworks will develop at a glacial pace in comparison to technological developments and strategic applications, lawyers should already be anticipating the effect of these technologies on IHL. The books discussed below take up legal questions more explicitly: (1) describing the state of current weapons law (and © An example of up-to-date and Interview-based reporting on these Issues Is the work of Kenneth Anderson, which can be found at Opinio Juris (www.opiniojuris.org) and The Volokh Conspiracy (wouw.volokb.com).2011 / Post-Human Humanitarian Law recognizing the gaps therein), and (2) developing novel frameworks applicable to the next generation of increasingly “autonomous” warbots. IIL Autonomy and Accountability Autonomy must be described both in technological and legal terms. A machine needs at Jeast some minimal autonomy to be called a robot. In his book Killer Robots, Armin Krishnan defines a “robot” as a machine that is programmable and can sense and manipulate its environment, and “autonomy” as the relative capability of such a machine for unsupervised operation. The less human supervision is needed, the greater the autonomy of the machine. Krishnan reassures us that at present, there are no robotic weapons that deserve the designation “autonomous.” He notes that “[o]ffensive robotic weapons such as Predator or cruise missiles... are currently tele-operated or programmed to attack a certain area/target, but. .. have the potential of becoming completely autonomous relatively soon.”*© There remains a crucial difference between remote platform systems (which exist) and autonomous robots (which do not yet exist). Krishnan offers a continuum between (a) robotic, (b) unmanned, and (c) autonomous weapons. A robotic weapon is defined as: “A computerized weapon equipped with sensors, which may be tele-operated or autonomous. For example, smart munitions and cruise missiles are ‘robotic’, as they have sensors that guide them to their target. ...""7 An unmanned system is defined as: “a robotic sensor or weapons platform, which is reusable and thus not destroyed through its use. An unmanned aerial vehicle (UAV) would count as an unmanned system, but a cruise missile would not” An autonomous weapon can be defined as “a computerized weapon that does not require any human input for 1g out its core mission,” which would include the ability to “independently identily targets and to trigger itself” * kausawan, supra note 6, at 1-2. Krishnan reassures us: “Killr robots In the sense of lethal autonomous military robots do not exist. The military robots that do exist are largely remote-controlled machines, which in rare cases carry weapons.” va ig Pg8 Harvard National Security Journal / Vol. 2 In legal terms, autonomy feeds into the applicability of the core concepts of weapons law. While a full-length doctrinal treatment of warbots has yet to appear, William Boothby's book Weapons Law is a handy general guide toa the relevant principles in IHL. Boothby defines “weapon as an “offensive capability,” “means” as the kinds of weapons themselves, and “methods” as the manner in which they are deployed.” He notes as a historical matter that the introduction of novel weapons such escalation of weapon capabilities fists, stones to nuclear and robotic weapons, has always been greeted with suspicion: The earliest warriors, accustomed to conduct[ing] hostilities by using each must have regarded the first appearance of more advanced technologies as violating the laws of war?! Warbots fit this pattern, but as with many weapons in the past, novelty cannot be equated with illegality. Increasingly it is no longer the weapon itself that is focused upon, but the method of its deployment. While in the recent humanitarian phase, the chivalrous ideal of “the right of Belligerent Parties to choose methods or means of warfare” like duelists agreeing upon “pistols at dawn” is no longer unlimited 2 similarly, IHL is no longer focused on the banning of entire classes of weapons. Instead, limitations are placed on the manner of a weapon's use, The use of any weapon is subject to the general rules and principles of customary and treaty law of international armed conflict (im particular the principle of distinction and the prohibition of unnecessary suffering), as well as to any other treaty law applicable for contracting parties. Boothby only addresses “Unmanned Combat Vehicles” in three pages?! but these are sufficient to grasp the application of weapons law to existing unmanned systems and can be © goorier, supra note 5, at 4 Rid, at. ® See Protocol Additional to the Geneva Conventions of 12 Aug, 1949, and Relating to the Protection of Victims of International Armed Conflict, art. 351), June 8, 1977, 1125 ULNTS. 3 ("In any armed conflict, the right of the Parties to the conflict to choose ‘methods or means of warfare is nat unlimited.” ” poorer, supra note 5 at 230-33.2011 / Post-Human Humanitarian Law extended to newer versions of robotic systems. The key issues concerning the deployment of unmanned systems are: ()) distinction (between combatants and non-combatants and between military objectives and civilian objects); (ii) the prohibition on causing unnecessary suffering to combatants; (iii) proportionality These principles apply to all weapons and were repeated by the International Court of Justice in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.“ It is also worth noting that A parallel set of principles have been held applicable by the United States in its analysis of its current drone program, even though that analysis for both military and civilian operators, lies outside armed conflict.25 Formally, IHL would require at a first phase the analysis of whether a weapon is of a prohibited nature, and then look specifically at its use according to a separate analysis. Art. 36 of Additional Protocol I to the Geneva Conventions (AP 1), which advocates a preventive approach by requiring contracting parties to determine whether the study, development or acquisition of a new weapon would be contrary to the provisions of Additional Protocol I. The practical reality of IHL reverses the formal logic that * Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 C.J), 226, 19) 78, 88 July, 8) * For the USS, government's defense of the use of these weapons under IHL and the law of seltclefense, See Koh, supra note 1. US government, to judge by its actions and Koh's speech, probably does not agree in all ways with the framework of legal analysis here. on ‘the other hand, he stressed that any such use would stil have to follow universal principles of discrimination and proportionality, so that in practical terms the standard would not be less in targeting than In an armed conflict. See also Statement Ken Anderson, U.S. House of Representatives Committee on Oversight and Government Reform, Subcommittee on National Security and Forelgn Affairs, 2010. "Such self-defense operations are not governed by the full panoply of treaty laws that attach to armed conflict [but] they must adhere to the customary standards of necessity, distinction, and proportionalty.”)10 Harvard National Security Journal / Vol. 2 targeting analysis (use) should be preceded by the determination of legality of a weapon (nature). There is no account of when and where the United States, for example, has ever analyzed whether its drone program Is IHL-compliant before putting these weapons into the field. This is because the practicality of prohibition is dependent ona “use” in a particular situation. It is precisely because the structure of modern IHL is anthropocentric— because it places human action at the center of concern— that an enquiry in weapons law as to conduct will precede an analysis of the nature of the weapons. Instead of prohibiting weapons “of a nature,” it prohibits the conduct of employing weapons “ofa nature.”26 Though it might seem logical to begin with the nature of a weapon, and find various uses of it that are prohibited, this is not suggested in the current phase of IHL. Instead, the finding of conduct violating the principles of discrimination, proportionality, or the prohibition on unnecessary suffering or superfluous injury will lead in some instances to conclusions about the nature of the weapons. There is no automatic prohibition on robotic weapons. One must first find instances where these weapons cannot be properly targeted or cause ® See PROGRAM ON HUMANITARAN POUCY AND CONFLICT RESEARCH, HPCR MANUAL ON INTERNATIONAL LAW APPUCABLE TO AIR AND MISSILE WaRraRe 8 (2009), available ot bnttp:/Ihiresearch ore/amw/HPCR%20Manusl.ogf. The HPCR MANUAL provides: Weapons used in alr and missle warfare must comply with: (2) The basic principle of distinction between chillans and combatants and between civilian objects and military objectives. Consequently, it is prohibited to conduct air or missile combat operations which employ weapons that {i} cannot be directed at a specific lawful target and therefore are of a nature to strike lawful targets and civilians or civilian objects without distinction; or (ll) the effects of which cannot be limited as required by the law of International armed conflict and which therefore are of o nature to strike lawful targets and civilians or civilian objects without distinction; (b) The prohibition of unnecessary suffering or superfluous injury. Consequently, it is prohibited to conduct air or missile combat ‘operations which employ weapons that are calculated, or of a nature, to cause unnecessary suffering or superfluous injury to combatants, 1., 8 15),2011 / Post-Human Humanitarian Law excessive injury to see how intrinsic these characteristics are to the technology itself. Indeed is no automatic prohibition on robotic weapons. One must find instances in which their use would be indiscriminate, disproportional, or cause excessive injury, rather than focusing on whether certain characteristics are intrinsic to the weapons themselves. As the development of unmanned weapons accelerates, it may be time to reverse the order of conduct-nature analysis once again. In the meantime, it is not IHL, but treaty based regimes that would ensure that their very use is put into question: the most reliable way to outlaw the use of specific weapons, or at least ensure their review, is for states to pursue a multilateral convention banning or stigmatizing weapons of that kind, IV. Rules and Tools for a “Post-Human’” Era Given the speed of technological change, anticipating the advent of autonomous weapons might not be a bad idea, and interventions might be sought in the engineering of norms as well as technology. The greatest obstacles to automated weapons on the battlefield are likely to be legal and ethical concerns. Forward-thinking scholars have taken up the challenges resulting from the interplay of law and technology. Both rules and weapons can be re-tooled to accommodate the other. Two authors have taken up this challenge from opposite vantage points: Armin Krishnan explores the creation of a legal regime to respond to the technology; Ronald Arkin discusses the creation of technology that incorporates the legal rules. Krishnan turns away from the current state of IHL, which gives weak guidance and insufficient constraints on these weapons, to outline possible parameters for future arms control agreements that would limit the use of autonomous weapons. If we were to develop treaties, we must define autonomous weapons under international law and agree on permissible roles and functions for these weapons. First the scope of the treaty would rely upon an agreement on a definition of a robotic or “autonomous” weapon. After arriving at a definition that is both precise enough to exclude irrelevant technologies while capacious enough to include future developments, the real challenge will be the content of regulation. When should the armed forces be allowed to use them? For example, states might bind themselves to use autonomous i12 Harvard National Security Journal / Vol. 2 weapons only for defensive functions, such as guarding military facilities and no-fly zones. Another approach to arms control agreements has been to limit the number of weapons, a step that states might take to prevent letting loose too many uncontrolled or poorly monitored weapons in the world. An analogy could be made to the continued development of nuclear weapons even as there has been effective international pressure keeping their use in check since the end of the World War II. It is unclear, however, whether such an analogy represents a model for effective deterrence. On the one hand, nuclear weapons have not been used, but on the other, stockpiles have continued to develop despite the supposed limitations. A third approach, not mentioned by Krishnan, would be to use autonomous weapons only for difficult humanitarian missions not involving the use of force, such as the clearing of land mines. Such agreements would only work if states could agree upon definitions and classifications, and if these definitions keep pace with changes in technology. At the moment, the present generation of drones has not inspired a significant movement towards an outright ban (as in case of landmines). Nor do we see states adopting subtler schemes for limitations of numbers, or monitoring and compliance schemes, Finally, what if we were to not re-tool the rules, but to re-route the rules through the technology itself? Perhaps the most ambitious well as most optimistic contribution to this literature is Ronald Arkin’s, Governing Lethal Behavior in Autonomous Robots, which actually celebrates the possibility of “post-human” warfare guided by programmed ethics. Arkin is optimistic about the compatibility of autonomous weapons with international law and the conventions of war for non-proliferation, He believes that robots can be created to not only to conform to international law, but to actually “outperform” human soldiers in their capacity to for the “ethical” (rule-based) use of lethal force. He puts forth a positive agenda for designing autonomous systems programmed with “artificial conscience” based in part on the2011 / Post-Human Humanitarian Law rules of IHL and weapons law. ®” Arkin’s utopianism remains a step ahead of the futurism of the other authors reviewed above. But questions remain. In the event of failure, should IHL follow the designer or the unit used to deploy the weapons? Arkin avoids any implication that whatever ethical imperatives are programmed, a weapon whose use or misuse cannot be attributed to any human agent is dangerous from the outset. This brings us back to Singer's intuition that putting humans at a distance from the battlefield endangers compliance with the governing rule system and the applicability of the rule system itself. Conclusion: A Post-Script to the Humanization of IHL? At the broadest level, as each of these books suggests, it seems that the introduction of sophisticated robotic weapons into combat introduces sufficiently profound changes in the conduct of armed conflict to pose a challenge to existing IHL. There are at least two ways to view the paradigmatic challenges to the discourse pulling IHL further away from “humanization” and toward a post-human re- conceptualization. The first is predictable — the law will expand to incorporate that which arguably was previously outside its reach. The second is more unsettling — the de-centering of “humanity” as the focus of IHL discourse. The first suggestion would be to look beyond the weapon to find the human agent responsible. Here the question of applicability of [HL must be revisited in each instance. For instances in which human agency becomes so attenuated as to seem to disappear from view, attribution must be identified under a complex variable in which deployment must be traced and programming stands in for command. This extension of law is already at work and may reach civilian computer technicians thousands of miles away from the battlefield. With modern technologies such as long-range missiles and unmanned missile-bearing planes, the focus on a well-articulated weapons law is useful to IHL, which has always struggled to keep pace with technological innovations in the means and methods of combat. ® pawn, supra note 7. Arkin provides examples that illustrate autonomous systems’ potential to internalize respect for the ethical use of force (Including relevant laws of War), and ls Just as pessimistic when he examines why soldiers in battle fall regarding ethical decisions.14 Harvard National Security Journal / Vol. 2 Optimistically, technological advances can support humanitarian standards. Just as IHL must equipoise between humanitarian ethos and effective killing, the weapons that are created during the humanization of IHL will inevitably be described both in terms of their life-saving and life-ending capacities. One can imagine a sharpening of humanity as an object of protection rather than as the initiator of armed conflict. A second, more deconstructive view is that robots reveal the inhumanity already present in the law of war. IHL clings to humanity in the first sense to inculcate the latter. According to one of Singer's sources, “To me, the robot is our answer to the suicide bomber."2® The analogy between a robot and a suicide bomber is a chilling portent of post-human warfare. What does the robot have in common with the suicide bomber? Both are at the extremities of war: present in combat, lethal, and neither is entitled to the protections of IHL. In short, they are objects of war not contemplated by humanitarian law, and place discourse of “humanity” in question. They are post-humanitarian concerns, and perhaps, in a range of ways, “post-human.” It is possible that in the near future, in light of the presence of robotic weapons making decisions on the battlefield, and suicide bombers converting bodies into means and methods, the notion of “humanity” itself will require rethinking in its connection to IHL. * siuses, supra note 4, at 60.O.P. Jindal Global University ‘A Brive Univesity Proms PoblicSoric= O.P. Jindal Global University Research Paper No. 2/2011 Editors’ Foreword: The Globalization of Legal Knowledge Vivek (Vik) Kanwar ‘centre on Public taw and Jurisprudence (CPL); 0.P. inde Global Universty (AGU) -sindal Globo! Law Schoo! (10S) Prabhakar Singh Jindal Global Law Schoo! (1GLS) JINDAL GLOBAL @) BUSINESS SCHOOLVout 2, Issue 1, SePreMneR 2010 Enron Fouswono The Globalization of Legal Knowledge Vik Kanwar and Prabhakar Singh* InTRODUCTION: Two GLoRALIZATIONS ‘The Jindal Global Law Review (JGLR) was launched in September 2009 with Commemorative lee edited by Professors C. Raj Kumar and Jayanth Krishnan to mark the opening of the Jindal Global Law School (JGLS) in the National Capital Region of India.! The JGLR was born as twin to JGLS, mirroring the law school’s commitment to academic research with the promise of creating a fertile site for the publication of scholarship. Together, they represented a particular kind of globalization, a transplantation of a proven standard, which would set anew benchmark for the Indian legal acadenty’s engagement with the broader world of academia. That first issue featured contributions from luminaries of the Anglo- American tradition, Supreme Court justices and globally recognized scholars from. India, Ic established, we hope, aspiric of mutuality and respect among intellectual slants separated by shrinking seas. This second issue represents a second kind of globalization: 2 contribution from the “Global South” to the mainstream debates of the day philosophy the second volume of the JGLR is rrady global, reflecting. in part the critiques and aspirations raised recently by one of the editots-in-chief while surveying the production of international legal scholarship in India.’ The JGLR. aspires to serve as a significant platform “for developing an alternative vision” on the discourse “of” and “about” law in the Global South.’ Even the process of publication underlines this global approach. With articles written in Argentina, South Afvica, India, and Nigeria, as well as France, England, and the United States (and edited in China, Thailand, and Australia, among other sites) the JGLR tilts the debate on globalization towards its reality as a robust process thar is multidirectional, reciprocal, and recussive. In every case, the contributors offer ideas and conclusions in diverse Felds of inquiry, raising issues of the global transmission of legal knowledge and authority. In content and “The Elton atc Asan Pfs = Jnl Gb Taw Shock OT Fd Gla Unive, Snip Huan, NCRof Delhi 131001, INDIA 1. ©. Raj Kamat & Jari Kila, Ein! Ford | Jp Gon L.Rev. 146 (2009), 2, See Prablsar Sig tin Internation Las Fo Calne Aelogt ¢Saairn Drei 23 LesonnJ tur 1-79, 10 a0), 4 ©OR Jon: Gionss Urs 2 Jom Grona L.Roe E210) Electronic copy available at: htip://esrn.com/abstract=1646305ii Findal Globel Law Review / Vol. 2 L. Giosauization OF Lecat, KNOwLEDGr: TRANSANTING Moprts ano Concerts Although the present volume was not originally intended to be a “thematic” issue, we have titled it to note the various ways in which these articles perform oF remark upon The Globalization of Legel Knowledge. Under that rubtics begins aptly with a lecture on a global transfer of a “knowledge-based” policing, ‘model, delivered recenely in India by Professor Lawrence Sherman of Cambridge. Part I of the iste is dedicated to longer tert processes of the transfer of legal discusses the role knowledge. Covering earlier phases of globalization, Halpe: of European legal transplants in India and Parise investigates the North American sources of the Civil Code of Argentina. Both transfers moved in the direction that istorical context of each — civil ‘we would today call North-to-South, bur the law codification on one hand and colonial administration on the other — admits subtleties into Alan Watson's celebrated model of “legal transplants.” As Patise writes at the beginning of his contribution, “Ideas tend to spread quickly when they are successfully implemented. Legal ideas are no exceptions." IL. Husa Ricttrs Law: CHALLENGES aND StTES OF IMPLEMENTATION Part II deals not with the success, but with the unresolved challenges of implementation. The five articles included address urgent debates on the implementation of human rights from distinctive points of view: labor, gender, traditional knowledge, the responsibility to protect (R2P), and the monitoring, of human rights through quantitative indicators, (The latter two are especially interesting in light of Prof. Sherman's discussion of “preventive” discourses). Each article engages with particular global institutions, and the authors are practitioners as well as scholars, offering situated knowledge from a particular position in the Global North oF South ALL, Tu Persistence oF NatuRat Law ARGUMENTATION 1A Gional AGE In the final section, we revisit classical Natural Law theorys finding, fami concerns— limiting power of the state, balancing the power of the political and judicial branches, defense of rights and liberties— in light of globalizaton. This section leads with a provocative libertarian defense of “right to bear arms” re- cast as implementing a human right against genocide. The originality of this piece is not so much its world-view bur its engagement with global examples and institutions, most centrally its oppasition ro a proposed Arms Trade Treaty. Nest we read one after the other an American scholar writing on the political Zr diam Agen Pe Lge nls eed Cains ipl tle Nath dt Sao ofthe Ci Cae of Ageing (IBF), 2 sn Gs Rev 0 (2010), Electronic copy available at: htip://esrn.com/abstract=16463052010 / The Globalization of Legal Knowledge i juestion doctrine and a Nigerian scholar writing on judicial review, each steeped in natural law traditions; che two articles demonstrate a stiking contin normative concerns across North-South divide. Rounding out the issue isa review of Amartya Sen's new book The Idea of Justice, written as a pragmatic corrective to the tradition of political theory from Locke to Rawls in favor of pluralism. Sen, a son of India, Oxford, and Harvard—who, though of a different generation, reflects the mixed parentage of our Law School and Law Review as well— ‘exemplifies our view that “[s]here are genuinely plural, and sometimes conflicting, igencral concerns that bear on our understanding of justice," but the fact that we ‘may never agree on fundamental principles of justice should not be a conversation stopper, bu us to admit different views and solations into the texture of our discussions. The global tansmission of ideas, successfully implemented of newly conceived, remains at the core of our overlapping projects. (Cone1uston: PLURALISM IN PRACTICE Located in India, the JGLR appreciates issues and examples from India that vividly illustrate global issues. As a law journal, we hope to set the benchmark for sary scholarship that can be staged from the South, Conscious of the emerging centrality of our location in a new global order, we have deliberated cautiously on the complex legacies of cultural transmission, which loom large in India but also emerge in the quotidian details of editing: whether to spell “globalization” of “globalisation,” “labor” or “labour.” of whether single standard can capture the moment we ate ia, (In the end, we chose pluralism and pragmatism over hegemony or hubris, keeping the voice of each author intact, bowing to the Oxford comma «nd the Bluebook). Finally, in the age of Lexis-Nexis, JSTOR, Google Scholar, SSRN, and academic blogging, we believe the traditional model of the Law Review continues to play an important role in promoting first-class ideas. We can see across new media that reputation” matters more than ever, We hope to establish a balance between expertise and innovation serious incerd s0 that our reputation will thrive in diffused and digitized environments as well as in the hands of humanitarian workers in the field and students in overheated and. underfunded libraties. 5 Asians Se Tes oF Josncr 200, 6 Maes? 7. Doe Soc Tr Fur or Renan Gens RM Ae Paro Ts DO.Jindal Globe Lavw Review 1 Vol, 2‘Two Crises of Confidence: Securing Non-Proliferation and the Rule of Law Through Security Council Resolutions ‘Vis KANWAR™ L. INTRODUCTION International organizations are usually created by treaties orother ordinary ‘meansof international law-making, butat times they also gain autonomy in their abilityto interpret, make, and over-rule existing international law. These organi- zations are regularly confronted by two contradictory challenges: objections to their imperializing overreach! on the one hand and their impotence on the other. Both challenges are apparent in attempts by the United Nations Security Couneil to address the greatest concerns of the modem era: the grave threats to our collective security posed by nuclear, biological and chemical (“NBC”) |weapons or weapons of mass destruction (“WMDs").” This paper investigates + Visiting Assistant Prosor (2006-2008), Loyola New Orleans College oF Law. LLM New York Univesity School of Law (2001), J.D, Noaheaster Univesity School of Law (2000). The fist phase of such orthis paper was completed ia Spring 2008 while tb autho was Research Assist at the Caner on Intemational Cooperation at NYU (CIC) and a Gadus Flo atthe Tose far Irrational Law ad Justi (IL) at NYU School of Law. Atthe CIC, De. Christine Wing provide the inal impos fr this projet under the untala othe program “Sirengthening Muller Approaches 1» Ruclear and Biological Werpons” Dr Cosa PR. Romano and De. Rally Najan posi eacly feedbuel and valuable advoe on issues of inenational la and nor-prolirain poi. At toe Professor Simon Chestemnan provided usfliasighsand wih Presson ThemasFratek nd Amber David Malonckindly slowed th author ontterd sina discunsnghackgreleslnaes, Anca version of his paper (“finer or Legislator of Lest Rest: Two Cemnpting Conceptions of the Secty Counts Role a Non-Pro) was presented at "The Opinio Jars Wausue Ondine Shposiums (Callens to Public Intemational Law” in April 2007. The author esters hissincere harks o Professor Sean D. Muply’ for his earful and ctial comments on that dal to the eueizars af te ‘Symporium—Profasors Pouey McCune and Chris Bergen—for the opportunity to vec thee cements int enerpeliand increasing ntti ornate nan hell somresponcens eho ‘nye espe to the pre-publication dais since tht time. Some ofthe went ideas an comidence buldinghave been sparked by pall projecsincolaborsionwithNozNodiradeh andthe Humanitarian Law Research Project at Harvard Finally ths pape would not have sen publication without generous rescarch stipend frm Des Bian Broeaberser td the Westerfield Program at Loyola University New Orleans Collegeof Law, reeachansistinceofSamuelSciretz and Sieve Catal. rhe pater upper of Lacey Tongs oy Kanwar, Soteesh Neri ta Kate Young. This pape x deat to Zazie Diva Kanwar Tarp aze?, who wickina well bu unquestionable mandate overtheauthr speaceandaceuty ‘The analyses offered ere. a well a mistakes aril ennsions. ate those othe ator alone 1. See e¢-RogerP. Allied, “Onrsourcing thor?" Chaion ro Foeten Cart Prevedsnt in Domestic Surispradence: For Mistakes inte ee on "Dutscrcng Authriy”69 Ata REV, 653, (65-84 (2006) ("The evticism reflect gute respectable and steng impression tat nemationl wis srmzmtly overreaching, trasarcsing is proper lear 2 bracketed icptine") 2 Wiscomentiona inthe Iertoreto reer lo NHC (Nec, Blepcal or Bacteriological and (Chemist) weapons and WMDs (Weapons of Mass Desrction inkeshangeably or than stnction I172 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol.35 the Security Couneil’s proper role in regulating the proliferation of these ‘weapons, Here, a genuine challenge for international law—developingmeans to regulate dangerous weapons—remains complicated by the various challenges toward international institutions and to the Security Council's rapidly evolving role. At present, confidence in the collective ability to regulate dangerous weapons is linked to confidence in the Security Coun san effective and legitimate forum to address these threats. ‘Though in terms of capacity and involvement the Security Council is a ‘waking giant in the field of non-proliferation, the promises and perils of this involvement have yet to be explored.” Two recent developments suggest the urgency of this inguiry. The first development is the Security Council’s well- known involvement in recent proliferation crises* conceming North Korea, Iran, and counter-proliferation resolutions directed at non-state proliferation networks.” The second development, known primarily to academics, is the visible inerease in formal options available to the Council, including the exercise of “legislative” powers purporting to have direct legal effect on all states, as well as on named individuals." Recently, the legal literarare has begun to recognize the “quasi-legislative” character of certain Couneil decisions under Chapter VI, in particular measures aimed at terrorism and “The firme peat more nthe techs! trate, nd the ater inpitcal sateen This pape will adopt the fomer because its more preese aie later oniy when fefetngo a pico esltin of rgument that uses his tem. Soe, Colona Guy B Roberts, The Counterroiferation Sef el Paradigm A Lal Regime for Exforcng the Norm Probing the Proliferation of Weapons of Mast Desircton, 27 DENN. AAINTLL & POLY 483 1999), A. Vik Kanwar, The Leilator of Last Resorts Security Council's Emerging Role in WD Prolfration Crises, biting ssn orslpapers inh i-977114, 4 Byers” here, 1d nt consldethe danger posed by the states, nor do adept any paieular Aetnion of dade cise (ex. cotabase), bul epnodic sents of “inlematcnal incident.” Ser INTeRS AMONALINCDE NTS THELAW THAT COUNTSIN WoRLA POLIIESCW. Micnel Reisman Andree 1. Willd eds, Princeton Univ Press 1948): Base Hilary Charles, eratlnal Lawl Diseipine of Criss.68 Moo. L RPV. 377-392 2002) (examining the way that etemationa yes tes oes on rises forthe develogrnen of iteration aw). The arte uses te reactions of intemavional avers © [NATO's intervention n Kosonoin 1999 as case study of his tendency and argues ha the ess Rens impovershesthe disphne of inemaionl wan propses hea ofan iteration aw of every lfeasanalernarive. Soe Charesweeth supra An episodic focus ispeciry well-suited othe practice of the Security Counc but ther ae two qualifications inthis pape. AS a shoriand, "esis of confidence denotes the need or cnfidenee-uingon oth sides. The preset rape takes the postion ‘hat Yarma, contingent, "ordnan", “extraordinary” “eis and everday” ae concomitant apost= ‘oF Secunty Coun practice, Foran arsiogical ayument cf, Sonia B. Sia. Extraordinary Crome at Ovdnary Tines:Itomeronal. sce Revond Crise Siations, VOL NV, UL. REV. 1257 (2007) 'S Ste eg, Robes pranote 22494, (6 Seegeneraly Alexander. Linn, ternational Szcuryand the War Powers Resolution. 8 Wo A Maky BILL OF Rts J. 725 (2000} ser afen Roberto Laval, ot Nove, IF Awkward Esrsiee fe Iernational Lay-Making: Security Count Resolution 1540, 3 NETWERLANDS INT'L L REV. 411-38, 200,2009] TWO CRISES OF CONFIDENCE 173 proliferation.” Ifsupport for such legislation ean be found in the U.N. Charter, it has been argued, the Council would remain true to its legal pedigree and ‘would remain a “creature of law.” It has even been suggested that compared to the painfully slow and hard-won achievements of multilateral non- proliferation regimes, the expedieney of Security Council Resolutions would provide “a tantalizing short-cut to law.” Others conclude that an increased 7. Of the debate on “essai oe” ofthe Secu Council unde the Claret Lali pra ote 6a, 411-38; Bardo Fssberdet: Quis cat? Dk Security Council fs Powers at esol Contra 11 BURJ INCL, 219 2000} Stefan Talmn, Te Security Council le World Pegilatere, 9 AML J IRPLE. 175,176 (2008) Siow Chesteman, The Scour Council ae World Lesion”, np il ong oewsade vets dosumnnts’2005'2004_|_D4 council C01 pl (May 26, 2006 notes inresponsetos November 2004 lnfsmationa sie er Law and sis panel discussion Now York Universis) myer Ostet, rhe Exccpion asthe Kade: Lawman a Force and Hume Rights 10 CONFLICT SEC: L. 1-20 (2005); Mirko Son, UN SC Res. 1373 (2001) Internavinal Lowman: 4 Transformation inthe Nature ofthe Legal Obligations fo the Fight against Tevoron?. haps Wwe dieu snglshpllSosss PDF: Eowanp Mewtussty Usireo Natioss LAW AkiNe, CUCTURAL SO Tnsotocica: RELATiisr AND IstexwsTIONAL Law Makive om 4s Ent or Transm, 90 (Holmes Meier Publishers, 1984) Joe E Aer, Hemonic Intemational Lan Resiied, 97 AMA. BTL. 75 (2003); Paul C. Seat, The Security Coane! Shre egilaing 96 AML INT'L 9OL (2002): sie ewan, The Sority Count “Gol Leiaar": Ula Virexor Ue Inova? 28 FORDHAM IST [LI S42 (2005), THe CHARTER OF THe UNFEDNATIONS, ACOMIMENTARY 702, 7-08 [Bruno Sia, 22002), Aer the nines, he "post-mere” sere coatmued, while thers viewed te Secu Cour ‘es tefl fot fir seing policy, which could conic trai wi thereof lw. Sere Mista J Glennon, fh he Sooty Counc! Fai, 82 FOREIGN AF. 16-17 Maye 2003), 'Sirnon Chestrman, The UW Securit Council and the Ril of Law: Tre Rote ofthe Security Council Sronatheninga Rulet-hoed arrnvional System Final Report and Recommendations fom ‘he Austrian tative, 2004-2008, hp wing a admin‘ us_yplond tsa di Verran sbehoorden Now_Vork’Kandidatur_SRVFINAL, Report - Tho UN Svcurity Coupeil_and the ule_of Law pif Horeinafar~Ausian iis"). Seo pica Sesion it (-The Sceuiy Coun 259 Crstrcof Lay” yand V ("The Sectity Couns Leister), Recommendaticn 3 prcpones Legislation by Council decisions under Caper Vllethe UN Charters tanializing son ‘uttolay, Yeats ofneyotions ovr inratonal instruments elated the prevention ad ‘Suppression ofntematenal osm and the polation ofwezpons mass destruction a he coerasad withthe silt adoption of esti 1973 200) 140 2004) 1358 2008) i 9. i ‘The Council sa creature of law but ther is po formal proces for viewing its dsisions the ultima sanctions on is auhity ae pote, These include challenges to the {Council's thon thr the General Assen, indivi occ rei 1 comply withits decisions. isin no one'simerest to push these political limits. Fritspan the Couns should lin tslfto using its ecroortirary powers for exraordinary papas. When itis necessaryto pass resclutions of lssativ character, esac forthe wl be cancel bya process it tours transpires, potspation, and accounbily. When the Comnilcontmpls tii finetions, it shold raw on exiting insittions oF international a it174 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol.35 role for the Security Council in this area is a cure worse than the illness."" Even if there is plenty of room for disagreement on. policy perspectives —whether to strengthen or delimit the Security Council’s capabilities in the area of non-proliferation or simply to increase its legitimacy—we must Understand the Security Council’s existing capabilities fo imagine what that future role might be. This paper suggests that the legal architecture of the United Nations Security Couneil to generate formal, binding obligations on would-be proliferators is more secure than one might expect. This is true both of the Security Couneit’s formal UN Charter powers and its operational relationship ‘with existing multilateral mechanisms, which come to rely on its authority. In order for the Security Council to build confidence in the legality and legitimacy of its actions, it is necessary not only that it acts within the ‘boundaries set by the UN Charter, but also that these boundaries are clearly defined. The powers are not per se legal or extra-legal (either in the sense al vs. political” or “legal vs. illegal”) but they become so only if they are exercised outside the limits of the UN Charter.'' While we are used to thinking of the Security Couneil its powers and failings in political terms (the power ofthe permanent five members, the veto power, and the role of political will inadvancing ordefeating action)", political considerations do not end the inguiry. All the Security Council’s power is still bound by law and its competencies are framed in terms of intemational law, not pure political considerations (expediency or compromise)." Ultimately. it seems necessary to come to the recognition that a robust regime or set of mechanisms for handling WMD threats will have to rely on an institution empowered to act on contingent as well as formal bases, as well as among international organizations." The Security Council is uniquely constituted with both kinds of powers.’ Beyond its express and implied powers under the UN Charter, as well as powers granted by specific treaties, 10, Ostend yor noe 7.3819, 11. While this paper pursues questions about legal author its also te that ques ofthe Security Council's lepimacy do not begin an end with aalses ofits eal powers Some persistent leptimecy eoneems-argumem fo rete participation and democratization in the Securit Count se nether seed in fick nor te they realv analtcal severable fom the core questions ofthis pct [ian 1 Foley, Reforming he Socurv Comnci to Achieve Cotlecive Sect in PROGRESSIN INTL ORG. (uss Miller & Rebecca Braspieseds, Marius Niho™. publisher, ethcoming in 2008)(Draton fle sth authoe 12, Femando R. Teson, The Yexing Problem of Authority in Mumavtarian tetcrrenion: A Propoal, 4 Ws. N1°LL3. 761 (2006), TA. See, eg. Jui G, Gardam, Legal Resrains on Securly Attiary Enforcement Action, 17 Mes IME 285 (1956), Mol 152009] TWO CRISES OF CONFIDENCE 175 argue in this paper that Security Council resolutions need not simply address contingent crises, but should also help develop the Council’s own legal capacity to deal with larger systemic crises, such as the possibility of non- compliance in the future and withdrawal from non-proliferation regimes." This involves side-stepping the default responses of dealing with potential proliferation threats—deferral or escalation—and actively pursuing “lateral” strategies, such as creative and quasi-legislative resolutions aimed at developing this capacity.” ‘Moreover, even as inereasing attention has been given to questions about the Security Council’s lawmaking capacity," critical attention has drifted away from its use of contingent measures under the heading of “confidence- building.””” ‘The language of confidence-building is borrowed from the contiguous field of bilateral negotiation.” Confidence-building measures include a broad range of activities and are aimed at reducing military tensions, developing trust and communication, and demonstrating good faith between parties toa conflict. Such measures are commonly used during the negotia- tion of peace agreements or to govern complex humanitarian operations, in situations where the parties rely upon different sources of legality and legitimacy or where there is a deep asymmetry between the parties? In a 18, They se not nani fescon fo beaches f the Care, expecially the case of iets tothe peace which do otal within the pbibitions Indo! n Atle paragraph dof the IN Chae Thecieumstances ad mae of ther inpoiton thus al erie ander the dirt ofthe Sexy Council uniter by considetions of law. The Coun doesnt have oat win the ol pacers ‘of given situation it can ignore, ect an even nesaetherists of the ties eeneemadandcan create ‘ew lawin specific eases throgh Rsdscsons. At theotherend of he spectrom ae lnyers sich ean Comiieat, who espouse “legal” vision of sanctions andthe fanetions. Soe Willian C Bode Dhe ‘Onan Law of War: Do We Need a New Leal Regie Aer September 18? “The Dus to Defend Thom A Natura ane Jastification forte Bush Doctrine of Provetive War, 79 NOTRE DAME L. REV: 1308, 1471 427, Sanctions would thus always epesen reactions agains violations of Charter esal hligaions othe point of eanstcing an plc pofiition for UN member sts o rae the "uations prose in gener way By Aisle 39. The Ssoarty Coun, even when eting 883 polceman, coud ony inerene to protect international public orders defined under international a ‘The Couns othe organo a suk of intentional ns, wold oie be subj othe applicable rales ofthat eal sat and could not ecolusvsy ast ce mos te rghs othe pares concer 19, See Public Intemational Law & Policy Group, Puper:Confdence-Builfn Measures: A Quick Guide: The Rote of Pict Accoumabiizy ane Transparency’ Confidence-Bulling Measures, PUB. INTL L. & PoL'y Guour 2007), pwn: publisintenaionaliascorrea'peacbuilding PILPG Confidence-Biléng- Measures Sept.07 do [hoteinater, PILPG] (defining and reviewing commen confdencesulding measures sed during the neptiason and implementation of peace agreement) 20 Md a. Me 22. Ascondingtothis por: "Conidence-bukting msssres include abroad rangeo acts med atrducing military tensions, developing trust ad communication, and demonstating gpd faith176 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol.35 standoffs between the Security Council and states suspected of proliferation, as with these other examples, a fuller appreciation of confidence-building measures would introduce elements of reciprocity and good faith that would not otherwise be present ‘There are two purposes of confidence-building measures: (1) so thatthe Security Council will be better positioned to anticipate and respond to ‘emerging challenges to peace and security, and (2) so states can better predict and rely upon norms guiding Security Council action The two, if used properly, may complement each other and build confidence in the law- governed practice of the Council.® Its hoped that these measures will better help all parties navigate or avoid complex proliferation crises. In the sense promoted by the Couneil itself, confidence-building involves transformation of voluntary undertakings into enforceable agreements and legal support for action. If we take, for example, the most recent resolution, S.C. Res. 1803 (March 3, 2008), against Iran for suspected development of a nuclear fuel ‘tween pate to. conflict. ates oa conflict commanly wee confience-uiling mente tlie ‘he esoltion ofthe conic.” A. a!2. “To ensure compliance with gree-upon measures and resolve ott disputes over implementation, poten to peace ngoiatins often etalinh a mechanian of desianstea neta thind prt tomeritor implementation, Many peaceaprementsndcemsites desi siataratioal esanization wo o4ese0 implementation ofan fdence-blling measutes” PILPG. ra ete 19, Peace Heater pd ceanefite aio erabish pec commision lo orerace mplemertation of frey’s tems, eviews ccmmon conidencebulding measure teed during the exotation nd implementatien offence aptamer. 1, Wecan corer alleges lo implementation nthe cortexts of ton prifeation srl umanitran lw andthe sini opion fo wing confidence ang master ‘oaippon he raleaiaw, Inbetheare,thechallenge soins reine inoaprocesthat iter ssommmcrcl in every material sense. This involves the inloducton of gel andl abtoct nr ‘hoa incremental tps that are voluntary before they tke lsislatve fleet. 2 2 Me 25 36, SeeS.C. Rs 1808,UN, Doe, SIRES'1803 (Mr. 3, 2008); seats § C. Res 1696, UN: Doe ‘SIRES/1696 al 31, 20068. Re. 1757, U.N, Doe, SIRES/I737 Dee, 25 2006}8.C Res. 1747UN, oc. §/RES/1747(Mar.24, 2007} In SC. Resolution $0, the Security Couns eis iscoment t9 the Nuclear Non-Praifetation Treaty NPT" andthe need fr alststespcis tothe NPT 0 comply ‘th the teat obligations psn Ate | an Ito perform feeseh atl uso nicer ene for excel purposes. S.C, Res 103, spin. emotes wth concem the reper ofthe Insmitional Ane Enotry Agency IAEA") hat an has ot suspended its uranium enrichment and heavy wate processing cision a previous Security Coane Reston equitel cto do ran has fren resin ‘cooperation inthe AFA under the Adina Poco 1d. emphasizes hat China, France, Germany ‘he Russian Federation, and the United States are wlling explore an o¥ertehing stae2) with I dress its moclear ses based upon thr Sune 2006 proposal. i. Asing pursue to Arle 41 of (Chaptr Vitf the UN. Chr, requires fn oak steps tense omfidence in he pene mtr oft nuclear program and comply wah S.C. Resolution 1737. 1d, Iv iaposes a rave bun on specie individual whom the Security Counc hos idenifiedasbeing asssited or suppertingtin’sroieation senstivesctvites. and authorizes sate te psioem inssctons of In Air Cargo and Ian Shipping Line ‘ther af teasonaete grounds ta bee hat they are amin prohibited avers. SC. Res. 1603, pra2009] TWO CRISES OF CONFIDENCE 77 cycle and possibly nuclear weapons, we will notice thatthe specifi act being required of Iran is to restore confidence in its intentions."” “This has been continuing theme in the various resolutions seeking to prevent North Korea from leaving the Nuclear Non-Proliferation Treaty (“NPT”) and Iran from developing its own nuclear technology. For the Security Council, then, continuing controversies concerning Iran and North Korea are viewed as crises of confidence or waming signals rather than breaches of law.” The inquity, then, is whether particular warning signals (including non-compliance or withdrawal from particular treaties) taken as factual and not as legal ‘matters contribute t0a threat to international peace and security. By the terms of the Charter, the Security Council is fegally empowered to make factual determinations which depart from the finding of unlawful acts." Among the ccharacterizations it might use in finding a threat to peace and security are the non-legal thresholds of warning signals or lack of confidenee. In this paper, Texpand the notion of “confidence-building” to apply not only to the requirements imposed upon states, but also upon the demonstration of good faith and fidelity tothe rule of law on the part of the Security Council inaccordance with the U.N. Charter. Otherwise, adifferent kind of collective insecurity would pervade the international comnmnity—one that each and every member is vulnerable to arbitrary attack by some or all the others. In calls up sttetoprevent ins emobtsining ands ed fr rotted stvte and frthemtoseoid Francia! ansctions with Bank Melis an Sader hat might belo prmotepoliertion sensitive slants. 7 i 2K. In September 2005, the IAEA oat of Govemors acre 3 eslutiondelaing tht Ins ‘many filresand breaches eentitutenoncamplianes "See nl Atomic Energy Agsney plementation ofthe NPT Safeguards Agrooment inthe Ilene Republi of trop, AEA Due, COW200S77 (Sept 24, 2005) eatabie attr. Pblications Document sr 2005)g0¥ 2008-77 pl. Argan nerd on Ariel If ofthe IAEA's sta, whish equites that in conection with he activites of ‘heagencs theteshoukt arse estos that ate within the cmpetenceof te Sects Coun the agency shall noi the Security Counc a the organ heating the main espansibity Sor the msintenanee of ‘nterational peace and svt" Sia of he IAEA, af. MIDAS) ovlahe thie on! Aboutsatute text itml¥ALS. In September 2004, John Bolten, the US. Undersstaiy of Sate, ‘ntepreted Anil tain his word, “sould there ance questions ha as within the competes oF ‘he Security Cousel wose aca of esponsibility is the maintenance of ntrational peace and secu ‘he sn shall nay dhe Security Couns,” Panel Discussion Te ternational tomic Energy gen The Maria's Fatorcoror Paper Tiger. Sept. 28 2004, hip wo. or evens’ eal verID 91 ‘ranserptasp (last vised Oct 27,2008). His agua turns on whether, aa legal mater, a sated ‘olaton necessarily implicates intemational peaceand security tno, there would he some serton lefttothe Boor af Geveres. 13 29, See, ex. Lary D. Johnson, Proeetiag the World From Weapons of Mass Destruction efectos onthe High-level Pave Reporton Thats, Challngecand Choe, 28 CAL. I'LLI. 63, 21007) 30, UN. Chanter am 34, par178 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol.35 this sense the project of “confidence-building” must extend to the rule of law and to principles of reciprocity, If we expect countries posing proliferation goncems (such as Iran and North Korea) to act within the law—and as ‘Members of the United Nations they are legally bound to “accept and carry out the decisions of the Security Couneil in accordance with the [U.N.] Charter”!—we should also be clear on the standards for referral and the various kinds of resolutions under the law. Ifall states uphold—beyond raw sovereignty —even the most general commitment to law-governed behavior, then at least the parties are willing to meet on a common plane of principle. If the Security Council adopts legislative policies, or if it acts as a well- ordered security agency, its methods will receive little scrutiny, If it acts as a legislator that eannot be bound by any higher law, skepticism by states will be warranted. More particularly, anxiety will arise if states believe that the Security Couneil’s actions will be politically motivated, extra-legal, and subject to abuse; even worse, states may suspect that aeting in accordance ‘with the law ean nevertheless make them vulnerable to punitive or diserimina- tory measures through the Security Council’s power prerogatives. There are normative implications to any descriptive account. In describing the legal status of the Security Couneil’s various powers, we should also seek to secure its place in the broader rule of law. The question that must ultimately be answered is not whether the Security Council may legally exercise a legislative power, but whether it can do so in a principled way. Though the manner in which the rule of law may constrain the Security Council is different from the way it constrains Statcs or even individuals the common ground that all international actors must have confidence in is that their obligations will be treated in a predictable, consistent and law-governed ‘manner, not according to the whims of powerful States and institutions. Ifthis common ground cannot be acquired, the imposition of obligations through legislation should cover every member of a legal community. Onee distine- tions are made, serutiny should be applied to the logie of those distinctions. Inthis case the Security Council is itself eroding confidence in the rule of law ‘wien it mixes a call for voluntary confidence-building with punitive ‘enforcement measures or refers to them as binding obligations. ‘These are the critiques that reflect anxieties about an expanded non-proliferation agenda of the Security Couneil that I will take up in the coneluding section of this paper. The Security Council has already begun to evolve in response to ‘emerging challenges to peace and security and the trend is that it will continue to do so. The evolution of cooperation between members also offers a ‘opportunity to secure confidence in the Security Couneil’s own constitution and operation. Based on the international consensus that has gathered around 31, UN. Chase are 252009] TWO CRISES OF CONFIDENCE 179 thedevelopment ofa cooperative “web of prevention’ around the proliferation of NBC materials,” the Security Council may legitimately claim 10 be expanding its powers while seeking to secure confidence in the rule of law: There are three examples of lateral, but law-governed strategies that the Security Council may pursue. ‘The firsts the generally applicable legislative measures aimed at developing the capacities of states in activities such as interdiction.” ‘The second is the generally applicable resolutions aimed at developing the Council’s own capacities to stipport and enforce multilateral commitments. * Finally, there are the strategies to build confidence that are appropriate to pursue, through Article VI voluntary agreements. These strategies include clarification of factual triggers (crises of confidence) that may initiate “peace and security.” We will tun now to the fuller Charter framework that urounds all of the Couneil’s powers. TL. THE SECURITY COUNCIL'S COMPETENCE IN NON-PROLIFERATION Much of modem international law, including the treaty-based non- proliferation system has developed against the background of the general framework forintemational peace and security embodied in the U.N. Charter. ‘The Charter isa treaty and, as such, all parties are bound by it.” Additionally, because of its nature, and universal membership. it also has two other characteristics that distinguish it from all other treaties, and make ita kind of super-treaty, First, it can claim to represent customary intemational lav, ‘which would extend its legal obligations for States that are not, (not yet. or even ro longer) members of the UN."* Second, itis claimed that the UN Charter trumps any other treaty that isin eonflit with it.” Thus, the Charter joned to represent the interests of the international community and exereises unparalleled influence on subsequent multilateral treaty regimes. 32, She generally Robes, pr note 2 3X. Se Linn, spre notes BAL Son ous) SC. Res. 1540, UN. Doo. SIRESTSAD (Apr. 24, 2008), oatlale ot dnnp/daccessés. an ore dactUNDOC GENNO4/328 43 PDF NO432543 pa?OnenEement 35, See Mor Joseph. “Dutch” Balke, Cred Nations Peace Operations: Applicable Norm ond he Appice ofthe Low of Armed Conf, 50 AF L.REX. 1, 1-2(2001)(@seusing ths obligations of smember stats unde the Ca). 36 UN.Chaneran 2. po 6 37. See otiC. Yoo & Will Trachman, War, Intemational Low and Sovereign Reewnhating the Rules ofthe Game ina New Century: Less han Bargeeed for The Use of Forced ke Detining Retevanve ofthe United Notions, Ci. 1 DSP'L L, 379. 382 (2008) ("The Charseembvacod an Sntetional system that mito the criminal lav-—a system in which thee would be a supranational vere that oa temp to ho a monopoly the seo ose"180 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol.35 The UN's principal mission is the maintenance of peace and security ‘The task of attaining this goal is shared by several UN organs, of which the Security Council is entrusted with the primary responsibility.” The Security Council also improvises within this constituent structure, not only to interpret its explicit responsibilities, but also implied powers as well as those granted bby specific treaties."" I is thus with the Charter that any discussion of the Security Council’s proper role must begin. A. Charter Powers ‘The United Nations Charter provides the framework for the Security Council's legal powers on NBC weapons proliferation." Under the Charter, the Security Council possesses certain powers and duties which are wholly independent of any particular non-proliferation regime. In particular, the Charter vests the Security Council with “primary responsibility for the ‘maintenance of international peace and security|. This mandate is binding on states and this effect is reinforced by Article 25, which provides: “The ‘Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." ‘Much of this paper will interpret the issue of what is actually in accordance with” the Charter and what kinds of decisions the Council is empowered to make in regulating protiferation, More broadly, the most important obligations in the Charter set out the Security Council's role in governing collective security and self-defense.* The provisions on the settlement of disputes can be found in Chapter VI and the provisions on collective security can be found in Chapter VII in addition to the provisions 38 UN. Charter, pr 39. UN. Chanerar. 7, Fr | 420, See Lacien J, Dhoore, Condon Relaions $3 Av, BUS LI, 245,381 n211 ‘41. See U.N, Chaneran. 24 2M. 43. proviing that sh psc powers event the Secu Coun nar ain Chaps VI arcgranted forthe dischargoits uti unde the responsbiitfothomaintnance of ntemational peace “H. UK Chanerat. 25, The issue heen debited what kindof Seciriny Council rsaaton ae coveredby this proviso inpancalar whether iteny covered Seer Council esltins adcptedundet (Chapter Vito the UN Chater, LsgalConseaences for Sats of the Comins rasene Sth Ahem in Nambia (South West Aca) notwithstanding Security Council Resalation 276 (1570). Advisory Opinion. {Ce Rep, 1971 Uupe 2), The lateratonal Cout of Justice detemnined ins 1971 ‘Kami visor opinian tht the bindingefiet of Sccurty Coun decisions is ne imited 0 resolutions adopted ander this prosion. 45, UN. Chansr ams, 28-6, arto: The Htnoie Divewment Ae! and Foreize2009] TWO CRISES OF CONFIDENCE 181 on self-defense shared between Articles 2(4) and 51. In matters of collective security and lawful self-defense, the Security Council isthe authorized referee that decides on the line between Articles 2(4) and 51."” Therefore, in the UN collective security system, the Security Council has a primary role in ‘managing definitions that are central to matters that would have traditionally ‘been considered the protected prerogatives of state sovereignty and internal security. Its also the UN body with the most options in defining and acting on the threats to peace and security. * B. The Council's Peace and Security Mandate ‘The Council’s primary responsibility isto identify and respond to threats to international “peace and security.” This intentionally general phrase lends itself to being read as a unilateral prerogative power, not unlike various ‘police power” or*salus populi” provisions in national law.°° However, some qualifications must be made about this mandate. First, its “primary 46, Seegonoyaily UN. Chater. Aisle, states hat“notinginthe present Chane shally ‘he intent ight of individual or collective selEdefencPanatned ita occusagsint x Meme the United Nations, until the Security Cou fas akan mass resessry ori infernal peace sn secur." UN. Chanerar. St. The aceptad meanings athe Chan's rinepls onthe cous fotce ae shilling, Within the Chatter the fndamertsl interpretive machinery consist inthe tenon between the Article 24) rehiiton of the we of force (hich is tpialyexplined with reference to sovrcanty, noriterenton, and preservation of a t's “etal integrity") and the Aci 51 cecepion for iva o collate nelefane (which x alo typically explained wih erence Sovereignty nl prosenatione asses terior neg” )sich allowed uni thet Conn uthcizes measures lo fnlorepoace and scutty. See generally Mikael Naba, Self-Defense Glial Teroviom. and Proc (4 Calo Rethink the L&& Coster, Proms. 771 2003, 37, Sec UN, Chae tt 24.26 ae it 429. UN. Chansr are 26 50, ft, Asa"slus populi” provision, “pene and sett” wn be vieweasapebal perxative. ‘Though rationally the province of sear municipal government, seve scholars have enti! oF prone notions of sas opal (abroad "police power” protein pubic say, health andmoals, 25 ‘vel as eoletve security or se preservation) tthe gota eve.” See Paik S. Florencio & Erik D. Ramanathan, Are Nonotrnsplantation Seward Legaty Wabi, 16 BERKEAEY Teen Li. 937,970 1.134, Inthe minimal ses "peace and scat” con be mepeted 2 public order or nvessihasod excepion, There are resonances of this cencep in policy proposals such a5 "huran security" or Resmi to mosst” Although ew eanmenacrs slaves theSeouiy Councilor engine in overbrcad “humanitarian ciboratins of peace and security (public health publi seu, and wel- ‘eine tone oh “olise pose” his eran sense, Thiohseraton ies ponimpubiskod research by the thor, (on fle witht). as well a, 8, HENACON SERIES 0 HUMAN AND EXVONMIEYTAL SECUAITY” AND PEACE: CLogAizaztoN “AND ENVIRONMENTAL CHALLENGES RECONCEPIUAL ZING SECURITY BC THE IST CENTURY, 994112 Ginter riches, Springer 2008) 4c alto DAV P, FIDLER, INTERNATIONAL LAW AND PUBLIC HEALIL MATERIALSON AND ANALYSS OF (Gio HEAL tsk DENCE (TanarationdPblsers, he. 2000)182 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol.35 responsibility” isa “core competence” though not an institutional monopoly. ‘The phrase “peace and security” is not located a single provision of the Charter, but is disaggregated between Chapters VI and VII in four key provisions: (1) the institutional mandate in Article 24 vesting responsibility sn the Security Council for the subject matter of peace and security,” (2) “Chapter VI powers” specified in Article 34 governing the pacific settlement of disputes, allowing the Council to investigate and determine situations “likely to endanger the maintenance of international peace and security[, |" and (3) Article 39, which contains the language “determine the existence of any threat to the peace, breach of the peace, or act of ageression[.]"" finally (4) the language allowing self-defense “until the Secu taken measures necessary to maintain international peace and Security. terms of the line between political influence and creating legal obligati second and third of these are given some importanee in acting under Chapter Vlor VII powers. It does not create legal obligations but instead allows the Council to exercise its political influence to “investigate any dispute, or any situation which might lead to international friction or give tise to a dispute, in order to determine whether the continuance ofthe dispute or situation is likely to endanger the maintenance of intetnational peace and security.” In contrast. Chapter VII. Article 39 empowers the Security Couneil to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” to “make recommendations, of decide what measures shall be taken .... to maintain or restore international peace and security."** "These measures may includea mandatory embargo or authorizing the use of foree to enforce a decision.” The formal distinctions between the Article 34 and 39 mandates on peace and security lic in the level of anticipation of danger required (“might lead” and “likely to endanger” on one hand, versus “threat to peace” on the other), as well as what each Chapter authorizes the Council todo." Even if in practice the line between the two Chapters is sometimes 51, UN Charter a 28, para 1 52, UN.Chanerar. 34 yaa | 5. UN Charter ar 39, para 54 UN Charter ar 1, para 5S. UN Chareran. 24 parm | Aniole 24vests the Security Con wth primar responsi: ‘ty forthe maintenance of intrnabonal peace and soe¥.” 1a 56. UN. Chansr ar. 39 The Securty Coun shall dtennine the essence of any thea to the exes, breachof ns peace oF ac of agesson ah shal makercomtmendations, or decide what meses hull be taken in acvordunce wit Article 41 aud 42, to maintain or restore inemaionl peae and security." S7, Seid 58 Soe UN. Chamero 348 992009] TWO CRISES OF CONFIDENCE 183, blurry, the invocation of one or the other can be erucial for perceptions of the mandatory character of a resolution. ‘Under both provisions of the Charter the Security Council has exclusive powers to make factual determinations which include deciding, whether ‘international peace and security has been violated.” The Security Council also has the power to decide a course of action." It does share with the International Court of Justice the power to make leyal determinations."” Thus, the characterization of proliferation activity as “illegal” rather than a “threat to peace and security” would be significant. The text of the Charter gives the Security Couneil the powerto police non-proliferation insofarasthe Council's Charter role is not solely to determine the legality of states actions, but more centrally to anticipate and address their security implications." ‘The Charter itself limits the Chapter VIL powers of the Council. Article 2(7) crucially says “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VIL™* ‘Thus, an expanded non-proliferation agenda of the Security Council must be grounded in the Charter and guided by sensitivity to other multilateral commitments. More careful reference to the totality of the Charter may also help cure some of the perceived defects in its legitimacy. Threats tocollective security are not enumerated the Charter, however, and can only be discovered in practice through the consideration of facts. At certain times even the exercise of legal rights by states—withdrawal from a treaty, cutting off negotiations, denying inspection and withholding coopera- tion, issuing threatening statements, or giving rise to evidence of nuclear testing—can be considered factual matters that signal a threat to peace and security and the Security Council ean properly consider the maiter."* 59. 60. id GL. See UN, Chanerans. 92-96 62. UN.Chaneran. 38 par. 63. UN Chareran 2, par. 7 (4. Hans ix Te Rote of inspection asa Part ofthe Efot to Prevent the Posesion of Weapons of Mass Desrcton, Loti at he fourth tsning coats fr fst tat of United Nations Monitoring ‘Vein and ispsstion Cominssion (INMOVIC), Ons, Cana May 28, 2001) tse ory Deptvuninovs new/pages‘xes_ehuimmanblis_odava asp. nthe vente of weapons ipectins, for ‘sample, cserdng to Caiman Hane ls of UNRFOVIC' it mst he ememlsr that the pvermen lof the inspected sae reinns eritral contol and at at anytime deny inspectors access ad wold cooperation but tan de so ony a the pris of snng waming signals othe worl”184 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol.35 | then, continuing controversies concerning tran and North Kored"™vievied through the lens ofthe Article 24 mandate —are viewed as “crises of confidence” or “warning signals” rather that breaches of law. The inquiry, then, is whether particular“ ignal including non-compliance or withdrawal from particular treaties, taken as 65, Hereisan example ofthe eta as ono tole dteninains te Security Counet would conser inthe dispute vet rns nuclear stv, Conca fistcmetged in Seplembe 2002, when am Iranian dissdon goup reveal the evstonce of 10 previously undisleed rca fei undar omsricton, ane at NEtaz ad the ether ot Arak. Ar Flasher White Hows Poss Brisfng (Ds. 13, 2002), psn hilehoure goes teleake’2002/12/20021 213.6 Mel The United Sates subse ‘wsnly published satelite pictures of the two fetes, a Dcsmber 2002, and sid he plete supped is judgment tht an a volved in an acre boa pura of weapons of mans destacion snd smisile capabilites” 1d: Andre J. Grotto, dra, the JAE ad the UN, ASIL Insc, Nov. 204, Anup along insighO4 110 efi, The USand EU havesince presen wosuspendall is woke siamenrichmentsraconidence bili messte sed ifyan Additional Protocol which would gt ‘he IAEA considerably preter aces odelaed and suspected nelear atv. In tober 2003, Fan sored wo meet eachof thee dernc Grotto, up. Those dapat continue atthe time af this writin BBC News, tran-UN Nalear Tlks Postponed Apt (3, 2008, hpnews.bbe.cvuklzo pri ‘yur ile easv 7345085 son 5, Hote xan example ofthe ficial agurents a opposed olga dterinations the Smsity Coun would consider inthe caso Noh Koes. atl he fica determinations it would have oaks, inching asessing hue fk {whether anuclear-atmed North Koen could tiger tego arn eace in Asa where apn, Taiwan ce Seth Kot ight jin Chin, indi ad Pakistan to decide tha wm velar weapons ogra or oleae the NPT; (2 whether US. ce othe superpower posture wu harden in nuclear deterrence srateies inthe tego (3) the danger of Noh Kee lin its plata. eiced anim. of finished weapons to ther euntiesfaleay bliss Sold mises wo a, ‘Yemen. yrs. and Pakistan) or tris (area peohitted by Resolution 1840 syprarnte 34:4) when ‘viewed ar 3psceden, any numer of cunts coll isteNoth Kate's movexandacquitethecapciiy 2» price fissile teas and marafeture nuclear weapons unr the guise of peaceful” nuclear ndeavorsaliowodbytieNPT. The status of negotiohons resntingNonh Kors smlearendsovore were eset 9s follows: "Nort Koreal] relist ackoowledge a secret wrnium-enrisment program an then more recent melearassistane 1 Sia. So the [Bs] adevinistation has made compromise with Nog Korea. Inthe comprase the Noth Koreans will ecare how rach pltonim they priced over th years and nstand of Noh Korea having to sdrcttyackovledoe the uonium-cuichment program and ther assistance to Sota, he United Sites will make a sotement expressing is bei that these seis have taken place andthe Noch Kosh wil mt rete stallene that US. tere. In exchange forth ta United ites wil take Nord Kosa ofthe listo state sponsors often it ‘remove some ofthe Tring withthe Enemy Act sanctions. Most important nee the ‘Seclrtnn sae hae hee sleet sides il en he serio notions over thesocalled hid phase, wich the plato dismantle Noch Korea's nla ali and cvenalycliminate is mclear weapons Inceview with Gary Samore. Counc on Foreign Relations: Samore: More Fluid US. Stance ou N. Korea Nueloar Weapons, (Aye 23,2008), bp tone pubenon 1675 amor hm