I wrote this piece for the site E-International Relations. It appeared there today.
The Joint Comprehensive Plan of Action (JCPOA) is a diplomatic accord negotiated among seven states, purposed in addressing the concerns of six of those states (the United States, the United Kingdom, France, Russia, China, and Germany – a.k.a. the P5+1), with the nuclear energy program of the seventh (Iran). On July 14, 2015, the agreement of the JCPOA was announced, bringing to a successful conclusion almost two years of negotiations, and seeming to bring to an end a period of international tension concerning Iran’s nuclear program that had been ongoing since 2002, and that had at times appeared likely to result in war.
The agreed JCPOA documents consist of 159 total pages of text, including 18 pages of the JCPOA itself, with a further 141 pages divided among five annexes, including a dispute settlement mechanism. That such a diverse set of state parties, with decades of varying levels of antipathetic relations among them, could come to such a detailed and comprehensive settlement concerning an issue of such high international security sensitivity, was seen by many as nothing short of miraculous, and as a great triumph for diplomatic approaches to the settlement of nuclear proliferation concerns.
On July 20, 2015, the U.N. Security Council adopted Resolution 2231, in which it unanimously endorsed the JCPOA, and brought into force the measures relating to Security Council sanctions agreed therein. Independently, yet in coordinated parallel with the JCPOA, on July 14, 2015 Iran and the International Atomic Energy Agency (IAEA) signed a “Roadmap Agreement” for the “clarification of past and present outstanding issues regarding Iran’s nuclear programme.” This agreement, and the report submitted pursuant to it by the IAE Director General to the IAEA Board of Governors on December 15, 2015, brought to a close the IAEA’s multi-year investigation into the possible past military dimensions of Iran’s nuclear program.
By January 16, 2016, the date by which all sides had successfully implemented their initial commitments pursuant to the JCPOA, there seemed to be ample cause for optimism that the JCPOA would in fact fulfill its purpose of reducing international tension over Iran’s nuclear program, and through a carefully negotiated and reciprocal exchange of commitments allow all the parties thereto to achieve their core aims. For Iran, these were to maintain it’s essential capacities to domestically produce uranium based fuel for its civilian nuclear reactors, including the sensitive step of uranium enrichment, while also having the crippling international financial sanctions that had been levied on the country since 2006 removed. For the P5+1 the core aims of the JCPOA were to significantly limit Iran’s nuclear fuel production program, and submit it to an unprecedented level of ongoing international monitoring and verification, in order to push Iran much further away from the capacity to produce a nuclear weapon than it was in 2015. As with any successful diplomatic accord, all sides were able to declare victory to both international and domestic constituencies through the terms of the JCPOA.
Within the context of international nuclear nonproliferation agreements, the JCPOA was a fascinatingly novel and exciting development. Agreements among states on nuclear arms and nuclear energy have for decades typically taken the form of formally adopted treaties, constituting obligations of international law for the parties thereto. This was certainly the case with regard to the nuclear arms control agreements negotiated between the United States and the Soviet Union/Russia both during and after the Cold War, and it was true of international agreements concerning nuclear weapons testing and regional nuclear weapon free zones. The cornerstone of this web of treaties concerning nuclear energy and nuclear weapons proliferation is the Nuclear Non-Proliferation Treaty, which came into force in 1970, and which mandates that all non-nuclear weapon states conclude separate and additional bilateral treaties with the IAEA. In short, the nuclear nonproliferation normative regime in international relations was, and continues to be, a highly treatified area of formal international legal obligations among states.
But the JCPOA broke that mold. It was very deliberately negotiated not as a formal legally binding treaty among its parties, but as a legally non-binding diplomatic accord based in political, instead of legal, commitments. States, of course, frequently enter into agreements with each other and make commitments that are not intended to be legally binding, yet do reflect an agreement among the parties with regard to some issue of their international relations. Sometimes these agreements are termed “memoranda of understanding” or “executive agreements.” In this case the agreement is entitled a Joint Comprehensive Plan of Action, which conveys the legally nonbinding nature of the text.
And yet, as noted above, the JCPOA consists of 159 pages of excrutiatingly detailed recitations of agreed terms and a schedule for their implementation, including specific commitments concerning Iran’s nuclear facilities and technical capabilities, specifically enumerated sanctions laws and regulations which were to be withdrawn, a highly proceduralized dispute settlement mechanism, and a pre-agreed process whereby any one of the permanent five members of the U.N. Security Council – all of whom were parties to the JCPOA – could unilaterally bring the Security Council’s prior economic sanctions on Iran back into application in the event it felt Iran was not in compliance with the agreement (i.e. the so-called “snapback” procedure).
The JCPOA seemed to represent a new wave of international agreements addressing highly sensitive and controversial issues of international relations through non-legally-binding, yet highly detailed and comprehensive recitations of political commitment. This use of what some have referred to as “soft law” approaches to high-politics issues of international affairs was of course not new overall – non-legally-binding recitations of political commitments had of course been employed before by states on a wide range of issues of international relations (see, e.g., the 1975 Helsinki Final Act, and elements of the 2015 Paris Climate Accord). But in the context of the nuclear nonproliferation issue area, the JCPOA was novel in its detailed and comprehensive handling of a complex and multi-faceted dispute through the form of a mutually agreed document reciting political and not legal commitments.
From January 2016 through May 2018, the IAEA, as well as the U.S. government, repeatedly confirmed that Iran was in compliance with its commitments under the JCPOA, which entailed among other things the shipping of most of Iran’s stockpile of low-enriched uranium out of the country, reducing enrichment capacity by placing two-thirds of its operating centrifuges into storage, permanently disabling its heavy water reactor at Arak, and bringing into effect an Additional Protocol inspection treaty with the IAEA under which it allowed an unprecedented level of access to the agency’s inspectors. In 2017 alone, the IAEA conducted 419 safeguards inspections in Iran – far and away more than in any other safeguarded state. Added to this, in 2017 the IAEA conducted a total of 35 complementary access inspections in Iran. These are sometimes referred to as “snap” inspections because of the shorter notice period given to the state prior to the inspection. In May 2018, Iran’s nuclear program was the most closely monitored in the world, and it was vastly reduced in scope and activity as compared to 2015.
Nevertheless, this is precisely when U.S. President Donald Trump decided to “withdraw” the U.S. from the JCPOA, and to re-impose the economic sanctions on Iran that had been lifted under it. Trump had long criticized the JCPOA as “the worst deal ever.” He cited as his reasons for leaving the agreement the fact that it did not address Iran’s ballistic missile program or its regional behavior, and that most of Iran’s commitments under the JCPOA are limited to a 10-15 year period, after which Iran could resume its enrichment and other covered activities at pre-JCPOA levels.
Much has been written about the reasons for the U.S. withdrawal, and about its prudential character. I would rather like to briefly discuss the issue of how best to characterize this action taken by the U.S. Due to the legally nonbinding character of the JCPOA, one cannot use legal language to describe states’ interactions around the agreement. One cannot, for example, look to the rules of treaty law found in the 1969 Vienna Convention on the Law of Treaties to assist with things like interpretation of the agreement, implementation, breach, or termination. These rules apply only to treaties, i.e. legally binding international agreements. This makes an analysis of the meaning and proper characterization of its purported withdrawal tricky.
But even with regard to legally nonbinding agreements among states, there is at least a principled difference between withdrawing from an agreement, on the one hand, and breaking it on the other. Perhaps it would be best, for analogical purposes, to use the language of contracting which Trump, the self-professed master of dealmaking, at least ought to understand from a principled perspective. The essential function of a contract in a domestic legal system is to protect the parties’ reasonable dependence on the promises made by the other parties, when the actions recited by the promises do not occur simultaneously. For example, the cable company will make me sign a contract to pay them over a set period of time in the future before they will undertake the up-front cost of giving me the necessary equipment and turning on the cable signal. If there were no contract in this situation, it wouldn’t make sense for the cable company to simply trust that I will make the agreed payments in exchange for their up-front costs.
The JCPOA, while not a legally binding treaty, was an international agreement comprised of reciprocal promises exchanged by the various parties. It was a quid pro quo, i.e. Iran’s promises were made in exchange for the promised actions of the P5+1, and vice versa. And as with the cable company hypothetical above, the actions recited by the parties’ promises were not to happen simultaneously. In the case of the JCPOA, the bulk of Iran’s commitments – including the shipping out of the country of most of its stockpile of low-enriched uranium, the disassembling and shelving of two-thirds of its centrifuges, the permanent disabling of the Arak reactor, and the bringing into force of an Additional Protocol inspection agreement with the IAEA – were frontloaded to the beginning of the JCPOA’s term, and were in fact essentially accomplished by Iran by Implementation Day – January 16, 2016. The commitments of the P5+1, on the other hand, were primarily to consist of the lifting of economic sanctions, and of keeping them lifted, for the entirety of the term of the JCPOA. The essential agreement enshrined in the JCPOA was that Iran would implement the bulk of its promises first, in reliance on the promises made by the P5+1, including the United States, that they would in return implement the bulk of their promises over the succeeding 15 years. And the U.S. was, of course, integral to the JCPOA coming into being. Because of its economic power, and the effect of U.S. economic sanctions, there would have been no agreement reached without the participation and commitment of the U.S.
Some observers have commented that lawful withdrawals from international agreements do occur, even when there has been no violation of their terms. And that this is true even in the arms control area. They frequently cite to the U.S. withdrawal from the Anti-Ballistic Missile Treaty (ABM) treaty with Russia in 2002. The difference in that case, however, was that there was a negotiated withdrawal clause in the ABM treaty, agreed by the parties. The JCPOA, by contrast, does not contain a withdrawal clause. The asynchronous nature of the agreed timing of the commitments under the JCPOA made such a clause undesirable.
Because of the frontloaded nature of Iran’s commitments under the JCPOA, and its fulfilment of those commitments in reliance on the future fulfilment of the commitments of the P5+1, along with the fact that the JCPOA does not contain a withdrawal clause agreed among the parties, it would be more accurate in my view to characterize the U.S. action in May 2018 not as a withdrawal from the JCPOA, but as a simple breaking of its commitments made therein. To be clear, I am not arguing that the U.S. violated international law through breach of a legally binding obligation. What I am saying is that the term “withdrawal” conveys a sense of justifiability which simply does not exist here. There was no basis in the agreement or in its context of implementation on which to justify the U.S. decision to cease the fulfilment of its promises made under the JCPOA. The U.S. simply decided to break those promises.
In my view, the JCPOA was in fact a tremendous victory for diplomacy. It was a novel, creative, intelligent solution to a problem in international relations that had – and still has – the potential to lead to war. The U.S. had no principled basis for its decision to abandon the JCPOA. This action was not a violation of law but it was a, frankly, shameful refusal to abide by promises which the United States had made, and on which another state had reasonably relied. To term this action a withdrawal is to sugarcoat a simple breaking of promises.
Nothing in international law prevented President Trump from deciding to not honor the promises made by the United States in the JCPOA. But let’s call it what it was. And it wasn’t a withdrawal.
I’m very pleased to host a guest post by Dr. Stuart Casey-Maslen. Stuart is Research and Policy Coordinator at the International Campaign to Abolish Nuclear Weapons (ICAN) and an Honorary Professor at the University of Pretoria’s Human Rights Centre. He holds a doctorate in international humanitarian law and master’s degrees in international human rights law and forensic ballistics. I’ve known Stuart for quite a while as one of the high quality people writing in the area of arms control law. He co-edited Nuclear Weapons under International Law, published by Cambridge University Press in 2014 (which included a chapter from me), and is the author of a legal commentary on the Treaty on the Prohibition of Nuclear Weapons, to be published by Oxford University Press in January 2019.
Friend or Foe? : The Treaty on the Prohibition of Nuclear Weapons and the NPT
By: Stuart Casey-Maslen, Research and Policy Coordinator, ICAN
Of all the attacks aimed at the TPNW by nuclear-weapon states (as well as some of the more militant umbrella states), one of the most persistent has been that the Treaty undermines the existing non-proliferation and arms control architecture, especially the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT). For instance, on the day the TPNW was adopted by 122 states in New York, France, the United Kingdom, and the United States issued a joint statement in which they argued that the new treaty risked “undermining the existing international security architecture which contributes to the maintenance of international peace and security” and reiterated their “continued commitment” to the NPT and to further promoting “its authority, universality and effectiveness”.
First and foremost, it is important to recall that the TPNW explicitly acknowledges and supports the NPT. A preambular paragraph dedicated to that treaty declares that the NPT is “the cornerstone of the nuclear disarmament and non-proliferation regime” and reaffirms that its “full and effective implementation” has “a vital role to play in promoting international peace and security”. That is an unequivocal endorsement. It also contains treaty language taken almost directly from Article 11 of the NPT; specifically the obligation in Article 1, paragraph 1 (c) never under any circumstances to “Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly”.
For sure, there is no “get-out-of-jail-free” card in the TPNW as is claimed, seemingly for perpetuity, by the P5 “Nuclear Weapons States” named as such under the NPT (Article VI notwithstanding). All nuclear weapons by any state party must be withdrawn from operational status and destroyed. In addition, the assistance provision in the TPNW (Article 1, paragraph 1(e)) prohibits the provision of source or fissionable material to the P5 for the purpose of producing or maintaining nuclear weapons, which is not the case under the NPT. So the TPNW goes beyond the NPT in restricting vertical proliferation as well as horizontal proliferation. That additional layer of protection is a good thing (unless one happens to believe that the more nuclear weapons the P5 possess, the better for humanity; more on that issue below).
But in April 2018, in a written “Outline of Legal Risks for States Contemplating Joining” (the TPNW), officials from the United States doubled down on the rhetoric, claiming that the new Treaty was “a step backwards on nonproliferation verification by ignoring the Additional Protocol” and that it was “inconsistent with the practice under the NPT of achieving progress on disarmament pursuant to negotiated measures containing rigorous verification and reflecting the realities of the international security environment”.
Let’s look at these issues in turn and see if they have merit.
First, is the TPNW a step backwards in verification and does it ignore the Additional Protocol?
The TPNW obligates every state party to either maintain or — if it does not yet have one in place — to negotiate and bring into force with the International Atomic Energy Agency (IAEA) its Comprehensive Safeguards Agreement (INFCIRC/153 (Corrected)). This is at least as strong as, and certainly more specific than, the obligation in Article III of the NPT to accept safeguards on source or special fissionable material “with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices”. Moreover, around a dozen states parties to the NPT do not yet have a Comprehensive Safeguards Agreement in force. Surely, any other international instrument that serves to pressure those states into concluding such an Agreement is a good thing?
It is true that the TPNW does not obligate every state party to negotiate and bring into force the Additional Protocol on safeguards with the IAEA. But nor does the NPT. By the end of 2017, though, an impressive 132 states had an Additional Protocol in force with the IAEA.
For those not familiar with it, the Additional Protocol is a binding agreement with the IAEA granting the Agency additional inspection authority to that provided in the Comprehensive Safeguards Agreement. A principal aim is to enable the IAEA inspectorate to provide assurance about the accuracy and completeness of declared activities and the absence of undeclared activities. Under the Protocol, the IAEA is granted expanded rights of access to both information and sites. Activities carried out during such complementary access can include examination of records, visual observation, environmental sampling, use of radiation detection and measurement devices, and the application of seals and other identifying and tamper-indicating devices.
But the TPNW does go further than the NPT in safeguarding. Any state that owned, possessed or controlled nuclear weapons on 8 July 2017 and subsequently eliminated their programme prior to becoming a party to the TPNW must agree upon safeguards that are “sufficient to provide credible assurance of the non-diversion of declared nuclear material from peaceful nuclear activities and of the absence of undeclared nuclear material or activities in that State Party as a whole” (Article 4, paragraph 1, TPNW). In practice, this means the Additional Protocol, even if the instrument isn’t cited explicitly in the text. In this regard, therefore, the TPNW goes significantly beyond the requirements laid down in the NPT.
Now let’s consider whether the TPNW is inconsistent with the so-called “practice” under the NPT. Massive reductions in their nuclear arsenals have been achieved by Russia and the United States since the apogee in the 1980s. Bold agreements (the INF Treaty, START, and New Start) were concluded bilaterally by successive presidents to reduce their stockpiles and make the world a safer place. In recent years, though, this trend has stalled and “modernisation” has become the new buzz word. More “usable” nuclear weapons are being developed. These new trends are provoking a new nuclear arms race at a time when societies can ill afford it.
So what is actually inconsistent is the practice of the P5 with respect to their legal obligations under the NPT. Article VI is explicit: each state party to the NPT “undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. The International Court of Justice went further in its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, holding unanimously that “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” (Dispositif F, added emphasis)
The United States has expressed support for a nuclear-free world, but has also committed to maintaining an arsenal for deterrence and defence as long as nuclear weapons exist. So where are the negotiations to make these weapons a thing of the past? A new arms race is a clear violation of Article VI. The 122 states that adopted the TPNW were living up to their NPT obligations. The P5 are not.
[Cross-posted from The Trench]
Origins and negotiation of Article VII of the Biological and Toxin Weapons Convention
A new research report
Article VII of the Biological and Toxin Weapons Convention (BTWC) belongs to the more obscure provisions. It reads as follows:
Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.
Since the treaty’s entry into force in 1975, states parties hardly looked at the one-paragraph article. Up to the 7th Review Conference (2011) the only additional understandings and agreements concerned general implementation procedures and possible roles of appropriate international organisations, including the World Health Organisation (WHO), the World Organisation for Animal Health (OIE) and the Food and Agricultural Organisation (FAO), as well as coordination functions for the United Nations (UN). Attention to the article increased markedly at the 7th Review Conference, a consequence of a heightened perceived worldwide risk from emerging and re-emerging diseases, fears of outbreaks resulting from biosecurity and -safety lapses in high-containment laboratories, concerns about scientific and technological advances in the life sciences that could be misused for hostile purposes, potential terrorist or criminal interest in highly contagious pathogens, and so on. The Ebola outbreak in West Africa between 2013–16 and subsequent evaluation of the international response raised concerns among the BTWC states parties about how the international community might respond to a deliberate disease outbreak, whether as a consequence of an act of war or terrorism.
These trends have led to an affirmation of the humanitarian dimension of Article VII. As Nicholas Sims noted in his study of the treaty’s early functioning (The Diplomacy of Biological Disarmament. 1988, p. 24): ‘Statements made in the UN, with an eye on future references to the negotiating history of the convention, indicate that this article is generally understood to refer to humanitarian, not military, assistance.’ With nothing seemingly contradicting today’s humanitarian imperative, most attention has so far gone to the organisation and coordination of international response to the release of a highly infectious biological weapon (BW).
Questions about triggering Article VII
Much less understood is how Article VII can be activated. There are no procedures; there has not been any determination who should be involved in the process. Which are the (possible) roles for the BTWC Implementation Support Unit (ISU), the treaty’s three depositary states (Russia, United Kingdom and United States), the UN Secretary-General (UNSG), or the UNSC is a question that remains unanswered. It should be added in this context that some actors or available tools are of much more recent origin and were consequently not envisaged during the treaty negotiation. The mandate for the ISU was decided at the 6th Review Conference (2006). The UNSG’s mechanism to investigate allegations of chemical and biological weapons (CBW) use received endorsement from the UNSC and the UN General Assembly (UNGA) in 1988 and has since then been strengthened. Through the review process, BTWC states parties have elaborated a consultative mechanism under Article V to address compliance concerns.
Moreover, given the humanitarian framework guiding today’s debates on implementing Article VII, from the perspective of triggering the provision there are several dissonant elements. The article has its origins in a 1968 working paper by the United Kingdom proposing a separate treaty banning biological warfare. The language underwent several reiterations over the next three years and at one point disappeared entirely from the draft convention, only to resurface in its current formulation just before the conclusion of the negotiations. The different versions of the article left traces from earlier intentions and understandings, meaning that the intent behind certain phrases that may be uncertain or appear confusing today. This is particularly the case for the following:
- provide or support assistance: what is the nature of the assistance, humanitarian, military, or any other type?
- in accordance with the United Nations Charter: why does the article include a reference to the UN Charter, particularly since the Charter allows for punitive actions and even resort to military force under Chapter VII? In addition, if the assistance is humanitarian, as assumed today, what prompted the reference to the UN Charter? The word ‘humanitarian’ features only once in the founding text (Chapter I, Article 1, 3); the words ‘aid’ or ‘assistance’ (in the sense of humanitarian or non-military aid) are absent. Furthermore, while the UN’s mandate includes the promotion of arms control and disarmament, nothing in the Charter makes it responsible for monitoring treaty compliance or addressing treaty violations. Besides Article VII, only Articles V and VI refer to the Charter or UNSC. The context concerns the resolution of any problems relating to the BTWC’s objective, way of implementation, or breaches of the convention.
Article V raises the possibility of organising bi- and multilateral consultations and cooperation ‘through appropriate international procedures within the framework of the United Nations and in accordance with its Charter’ in case direct interaction between the parties concerned is impossible or unproductive. Overall the provision is vague. Review conferences have tried to clarify it, in particular with regard to the convening of a consultative meeting. Article VI grants a state party the right to lodge a complaint with the UNSC if it believes that another state party has breached its treaty obligations. Furthermore, should the UNSC initiate an investigation, all states parties undertake to cooperate with such investigation. However, states parties have not elaborated on the references to the UN Charter and the UNSC. They have also not answered whether there is or should be any linkage between either Articles V or VI and Article VII.
- if the Security Council decides that such Party has been exposed to danger: why is there a requirement for Security Council action if assistance can be provided under basic humanitarian principles? On what basis will the UNSC make this decision? The Third and Fourth Review Conferences (1991 and 1996) noted under both Articles V and VI the UNSG’s investigative mechanism as endorsed in UNSC Resolution 620 (1988) and UNGA Resolution 45/57 (1990) and ‘to consult, at the request of any State Party, regarding allegations of use or threat of use of bacteriological (biological) or toxin weapons and to cooperate fully with the United Nations Secretary-General in carrying out such investigations’. Later review conferences refer back to this text and have not elaborated any further on the references to the UN Charter or the UNSC. The UNSC, as its name indicates, bears primary responsibility for the maintenance of international peace and security (Chapter V, Article 24, 1). Logic therefore suggests that Article VII applies exclusively to the deliberate use of a pathogen or toxin as a weapon. This would thus exclude a situation of a country facing an outbreak after an accidental release of a disease-causing agent from a neighbour’s secret BW research or production facility (similar to the anthrax outbreak near Sverdlovsk in 1979). In other words, according to this interpretation Article VII refers to an act of war, even though the BTWC lacks references to ‘use’ in both its title and Article I.
- as a result of violation of the Convention: does this clause imply violation of any part of the BTWC? If affirmative, this could include illicit weapon programmes or outbreaks resulting from illicit activities. How would this square with the interpretation that Article VII only refers to an act of war?
Furthermore, only states parties can violate the BTWC, which implies that dangers arising from other actors—non-states parties (signatory or non-signatory states) or non-state actors—could not be the subject of Security Council action, and therefore not of state party assistance.
Aim of the research paper
In November 2016, in the margins of the 8th Review Conference of the BTWC, the Fondation pour la recherche stratégique (FRS) and UN Institute for Disarmament Research (UNIDIR) held a tabletop exercise (TTX) to understand better the elements that would have to be in place to trigger Article VII and the consequences such action may have on the organisation of international assistance. The TTX revealed that decision-making was severely hampered because of the article’s lack of clarity, uncertainty about possible procedures and their consequences on the process as a whole, and the types of actors that could be called upon (e.g. UNSG, ISU, depositary states, etc.).
Discussions at a workshop on ‘Article VII of the BWC and the UN System’, held in New York on 12–13 December 2017 as part of the Project on strengthening global mechanisms and capacities for responding to deliberate use of biological agents, also touched upon the specific responsibilities of UN organs following activation of Article VII. The question was raised whether there was any relevancy in trying to recover the negotiators’ original intentions. In reply, UN officials said that since the implications of triggering Article VII had never been studied and no procedures have ever been put in place, following a request the first task for the UN would be to study legal and negotiation documents to determine which types of action might be possible and which roles the UNSC and UNSG might play.
This research paper traces the article’s negotiation history between 1968 and 1971. During those three years negotiations took some sharp turns, and draft treaty texts were dropped and replaced by alternatives that framed BW control in radically different ways. In the final two months of negotiation, some degree of synthesis between different approaches took place. With respect to Article VII, when Morocco introduced an amendment to reinsert language based on the British proposal of August 1971, the context had completely changed, not in the least because the original draft provisions banning methods of biological warfare and a mechanism to investigate allegations of BW use had been dropped. Whereas Article IV in the original British draft convention formed part of the fabric to prevent biological warfare, the later Article VII had no obvious connections to the BTWC’s core prohibitions in Articles I – III. It also lacked direct or explicit links to Articles V and VI.
Moreover, the humanitarian intent, systematically affirmed by British government officials and diplomats, became blurred at times, especially after an addition to a draft UNSC resolution that was to accompany the BTWC made explicit reference to Article 51 of the UN Charter on individual and collective self-defence. It shifted the focus away from aiding the victim of a biological attack to possible assistance in countering the aggressor.
Download the full research report
Guest Post: A Comparison of Two Geological Disposal Facilities, and the Implications of International Nuclear LawPosted: June 27, 2018
This past March I taught a week-long course at the University of Manchester, in the UK. The course was, as far as I know, unique. The title of the course was “International Nuclear Energy Law.” I designed the course to cover the international legal sources regulating the civilian nuclear energy industry. So both hard and soft law sources on nuclear safeguards, trade in nuclear technologies, nuclear facility and materials safety and security, nuclear incident liability, nuclear materials transport, radioactive waste disposal and the environment, and international investment law related to nuclear facility new builds. This was definitely a bit of a stretch from my usual short-course subject of nuclear nonproliferation law, but of course there is considerable overlap and I wanted to expand my teaching and research repertoire. And as it happens, Manchester has both a very strong nuclear engineering school and an excellent law school. So along with friends on both faculties, we designed this course to be cross listed for both law students and nuclear science students. The result was just remarkable. The class of 28 students was comprised about equally of law students and nuclear science (engineering, physics, chemistry, etc.) students. And the discussions that ensued were fascinating, with both groups contributing insights from their disciplines. I think the group work particularly was enjoyable for the students. Every day in the afternoon I would give them a case study based on the morning’s lecture, and break them into groups containing both law students and nuclear science students, and have them work together to come up with an answer which they then reported to the full class. Seeing the discussions that they had among the different disciplines was really exciting. I’m hoping the course will become a regular, annual event.
So, among the final papers that were submitted by the students in the course, I thought I would post one of the best ones here, so that readers could see the kind of subjects we discussed in the course. The below is the course paper submitted by Amber Mason, who is a PhD student in her second year at the Materials Science and Engineering Department at the University of Sheffield. Her research involves investigating potential materials for the purpose of nuclear waste immobilisation, with a particular focus on the plutonium stockpile currently stored at Sellafield, UK. She wrote the below paper for the course comparing two different examples of geological disposal facilities for radioactive waste, and also considering the requirements of international law for such facilities. I thought it was a great paper, so wanted to share it (with her permission of course). Comments welcome.
I’m pleased to introduce the below guest post by Olha Bozhenko. She is an LL.M student in International Litigation (Public International Law) at the Institute of International Relations Kyiv National Taras Shevchenko University. She holds a BA (Hons) in International Relations from the same university. She is an Associate at Marchenko Danevych law firm (Ukraine).
I like this piece because I think it address some timely dynamics in nuclear arms control, and then provides an interesting and meaningful discussion of some of the implications of these dynamics for international law. Comments welcome.
Is the Conventionalization of Nuclear Weapons Detrimental to the Associated International Legal Regime?
By Olha Bozhenko
Nuclear weapons enjoy a separate and unique regime under international law. The majority of states struggle to establish a complete prohibition of nuclear weapons, as in the case of other categories of WMD. In fact, in its only authoritative pronouncement on the matter, the ICJ stressed ‘the unique characteristics of nuclear weapons, and in particular their destructive capacity’ (para 36).
Yet in view of some recent developments, to be discussed below, this distinction has been gradually disappearing, with the line between nuclear and conventional weapons becoming blurred. This means that nuclear weapons are not stigmatized as their WMD counterparts, but rather conventionalized.
This piece is an attempt to, first, ascertain the progressing conventionalization among the current trends related to nuclear weapons and, second, delineate its consequences for the international legal regulation of armaments.
Paths of conventionalization
Nuclear weapons conventionalization has been referred to as ‘nuclear entanglement’, which essentially means the merger of nuclear and conventional weapons. Broadly understood, it manifests itself in the following ways.
Increased reliance on non-strategic (tactical) nuclear weapons
As early as in his Dissenting Opinion to the Nuclear Weapons Advisory Opinion, Judge Shahabudeen suggested that assuming tactical nuclear weapons could be no more destructive than conventional weapons, they should not be less lawful than the latter (p. 159). Hence, placing nonstrategic nuclear weapons (NSNW) at the top of ‘conventionalization agenda’ is not a brand-new idea. Besides, it has recently been emphasized in national strategies.
The most striking example is, of course, the US 2018 Nuclear Posture Review (NPR), which radically departs from its predecessor in mandating the development of a range of nonstrategic low-yield nuclear options (p. 52). The Trump Administration considers this departure necessary as a response to Russia’s substantial reliance on and expansion of non-strategic nuclear arsenal, which considerably outstrips that of the US (p. 53). At face value, this means that the two most powerful nuclear-weapon states have embarked upon the rapid expansion of their non-strategic nuclear options.
Such an approach depicting NSNW as quite a usable tool to advance military and non-military goals significantly lowers the threshold for the actual use. Such reliance on a limited nuclear strike can well lead to the full-blown nuclear escalation, which the ICJ considered among the possible consequences of using low yield nuclear weapons (para 94).
Integration of nuclear and conventional planning and operations
The integration of nuclear and conventional capabilities also contributes to the conventionalization. This is ‘nuclear entanglement’ in the original meaning of the term. The integration includes equipping dual use means of delivery with nuclear and non-nuclear warheads, merging nuclear and conventional support facilities, as well as integrating planning and training for both nuclear and non-nuclear forces. China and Russia are said to pursue this strategy whether deliberately or as a matter of historical legacy. Furthermore, the US’ NPR specifically mandates ensuring ‘the ability to integrate nuclear and non-nuclear military planning and operations’ (p. 21) to ‘deter limited nuclear escalation and nonnuclear strategic attacks’ (p. 58).
These developments are frowned upon for a number of reasons. They tend to erode the line between nuclear and conventional forces in the most palpable manner. They also increase the risk of adversary’s misinterpretation of the nature of an attack, which can simultaneously target ‘entangled’ capabilities.
Expanding range of scenarios for the use of nuclear weapons
Much has been said on the expanded range of scenarios where the US contemplates first use of nuclear weapons, also in response to non-nuclear threats (2018 NPR, p. 21). Although the US strategy is most widely discussed owing to its considerable departure from the previous pattern, other nuclear-weapon states either preserve deliberate ambiguity with regard to the possible use of nuclear weapons (e.g. the UK and France) or explicitly declare their readiness to balance an adversary’s conventional superiority with a nuclear strike (e.g. Russia and Pakistan).
Expanding the role of nuclear weapons beyond deterring nuclear threats alludes to an increased rationality and military utility of a nuclear strike. This further undermines the arguments that there exists opinio juris prohibiting recourse to nuclear weapons, except for the purposes of deterrence (para 65). In view of such developments it is understandable why the ICJ refused to acknowledge that the non-recourse to nuclear weapons since 1945 had been due to such opinio juris rather than the absence of military necessity (para 67).
Nuclear saber rattling
Finally, never before has it been so common for political leaders to boast of their states’ nuclear capacities. One may recall Vladimir Putin’s threats to deploy nuclear weapons in the course of Crimea crisis and against Baltic states, or his most recent brandishing cutting-edge nuclear technology with animated nukes striking Florida in an address to the Parliament. Along the same lines, Donald Trump publicly threatened North Korea with ‘fire and fury’ and even with ‘total destruction’.
Although the ICJ refused to differentiate between nuclear and conventional weapons, when assessing the legality of the threat of nuclear weapons use (para 48), the state practice seems to have accepted a special standard for nuclear threats which is measured against the strategy of deterrence. For instance, the UK’s High Court of Justiciary stated that ‘deployment of nuclear weapons in time of peace … is utterly different from the kind of specific ‘threat’ which is equated with actual use’ (p. 452). Under this approach, states would only cross the line of nuclear deterrence and resort to the threat of using nuclear weapons if such a threat is specific enough, i.e. directed against a specific target.
Considering that the arbitral tribunal went so far as to equate the phrase ‘to face consequences’ to a threat of the use of force in Guyana v Suriname (para 439), it is doubtful that states are still within the safe harbor of deterrence when directing their nuclear threats explicitly and specifically against other states.
Consequences for international law
Driven by analogy with other types of WMD, international law seeks to raise the threshold for using of nuclear weapons (or even contemplating such use) as high as possible. The adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is among the most notable developments to this end. Still, there is an observable tension between the movement towards nuclear weapons ban as enshrined in the TPNW and the trends described above. International legal instruments like the TPNW are grounded on humanitarian considerations. In this particular case, the TPNW is meant to stigmatize nuclear weapons to the extent of their total abandonment by nuclear-weapon states. Considering that nuclear-weapon states refused to take any part in the ‘ban campaign’ leading to the adoption of the TPNW, it is reasonable to assume that such progressive stigmatization (which can eventually generate a parallel customary prohibition) is the only way to endow the TPNW with normative force. Analogy may be drawn with other disarmament treaties such as Convention on Anti-Personnel Mines Ban and Convention on Cluster Munitions: they contributed to the establishment of the customary prohibition of respective armaments even without directly binding all states possessing them.
However, when nuclear weapons are postured to be as usable as conventional ones, the normative boundary between the two is not hardened at all. No stigma is likely to appear for weapons possessing which is dictated and justified by strong military utility. As long as the conventionalization of nuclear weapons is taking place, no binding obligations will probably proceed from the newly established TPNW regime, either as treaty rules or as a crystallizing custom.
Along with the TPNW, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is to bear a major part of ramifications. The core obligation of non-proliferation under Article II is likely to be affected, since nuclear weapons, if conventionalized, make their acquisition by non-nuclear-weapon states more conceivable. Additionally, the deployment of tactical nuclear devices makes nuclear weapons more accessible and ‘proliferable’ in the technical sense, spurring their acquisition by non-state actors, particularly, by terrorist groups. This is an alarming possibility considering that the non-proliferation to non-state actors still constitutes a legal gap largely left to Security Council Resolution 1540.
Besides, the conventionalization of nuclear weapons invites their advancement, which is hardly in line with the (allegedly customary) obligation of nuclear disarmament under Article VI of the NPT. States are not in compliance with their disarmament obligation ‘to achieve a precise result – nuclear disarmament in all its aspects’ (para 99) when they engage in the ‘vertical proliferation’ (i.e. modernizing their nuclear arsenals or expand the range of scenarios to deploy nuclear weapons).
Should the described trends gain traction, their impact will in no way be limited to nuclear weapons regulation, but extend to the whole set of rules on the use of force. In particular, the gradually vanishing line between the threat of use of force and nuclear deterrence will further blur. It is questionable whether teetering on the brink of threats to use nuclear weapons is still justifiable under the concept of nuclear deterrence, which the ICJ was careful to characterize as practice ‘adhered to by states’ (para 67). Consequently, it is doubtful whether nuclear deterrence should enjoy such leniency with respect to the standard of the threat of use of force.
The jus ad bellum requirements for self-defense may also be affected by nuclear entanglement. For instance, it is highly questionable whether a limited strike with tactical nuclear weapons to preclude a massive conventional attack fails to meet the standard of proportionality. Similarly, it is not that clear whether anticipatory nuclear strike against a missile equipped with non-nuclear warhead is unlawful, since a state intercepting such a missile can be misled by its dual-use capacity in view of nuclear entanglement.
The questions of similar nature will arise with respect to jus in bello. With the gap between nuclear and conventional weapons narrowing, there is less room to assert that employing nuclear weapons should ab initio be contrary to the proportionality principle. Correspondingly, what concerns the lawfulness of belligerent reprisals conducted with the use of nuclear weapons, a pre-defined approach exclusively based on the ‘nuclear element’ is likely to give ground to the qualification irrespective of the type of weapons. To put it bluntly, the ICJ’s reasoning that the legality of the use of nuclear weapons shall be considered on the basis of case-to-case compliance with jus in bello (para 2D) seems to be regaining relevance.
While any radical transformation of the international legal regime governing nuclear weapons is still unlikely, there is definitely room for considering its adequacy for current challenges. In the near future we should be ready to make a choice of either raising the bar on the conventionalization of nuclear weapons or easing this process. Simply put, international law may find itself in need of deciding whether it is better to ban nuclear weapons altogether rather than to regulate them.
Readers may have seen reports in the media about IAEA Director General Yukiya Amano’s most recent report to the IAEA Board of Governors on Iran. Jonathan Tirone has a good one here, as usual. Although the BOG report itself is restricted distribution, once again in the interests of transparency a Vienna source has provided a copy of the report to Arms Control Law for public dissemination. You can find it at the link below.
Generally speaking, this report is consistent with the other recent DG reports on Iran’s compliance with the terms of the JCPOA and the IAEA’s monitoring and verification activities pursuant to Iran’s comprehensive safeguards agreement and its additional protocol agreement, which Iran is provisionally applying according to the terms of the JCPOA.
This report, as previous reports have done, finds Iran in compliance with its various safeguards commitments and with the terms of the JCPOA. It’s worth reiterating in that context some of the facts of the IAEA’s extensive and really unprecedented monitoring activities in Iran, as the IAEA itself reported in its 2017 Safeguards Implementation Report which I recently posted here.
In 2017, the IAEA conducted 419 safeguards inspections in Iran. This is far and away more than in any other safeguarded state. Added to this, the IAEA conducted a total of 35 complementary access inspections in Iran, pursuant to the terms of Iran’s additional protocol agreement. These are sometimes referred to as “snap” inspections because of the shorter notice period given to the state prior to the inspection. These complementary access inspections can also be requested at a broader range of sites than normal inspections under the comprehensive safeguards agreement. Again, the number of complementary access inspections conducted by the IAEA in Iran in 2017 was significantly higher than in any other state.
Back in March, Amano said that the IAEA “has the world’s most robust verification regime in place in Iran” and has access to “all the locations” that it needs within Iran.
So it is a bit surprising that in this most recent Iran report to the BOG, while again confirming Iran’s compliance with the terms of both the JCPOA and its safeguards agreements, Amano chose to editorialize by saying:
The Agency has continued to evaluate Iran’s declarations under the Additional Protocol, and has conducted complementary accesses under the Additional Protocol to all the sites and locations in Iran which it needed to visit. Timely and proactive cooperation by Iran in providing such access would facilitate implementation of the Additional Protocol and enhance confidence.
Timely and proactive cooperation? The 419 completed inspections and 35 granted complementary access requests weren’t good enough for you? Geesh. There’s just no pleasing some people!
It’s pretty obvious what the motivation for this superfluous editorializing was. It was almost certainly to throw a bone to the state that brought Amano to the DG dance in the first place, and then got him his second and now third terms in the job. Remember those Wikileaks docs on the “cozy” relationship between Amano and the U.S. delegation to the IAEA? Well this appears to be him doing his part by inserting this unnecessary language that allows the Trump administration to have a small but useful negative talking point about the IAEA report.
I’ve been in reading and thinking (and despairing) mode for the past couple of weeks since the Madness of King Donald resulted in the U.S. withdrawing from the JCPOA. I have lots of thought on that and will try to write something soon. If you’re interested in my day to day thoughts (read anguishings) on that subject and its relevance to the bumbling U.S. approach to North Korea, consider following me on Twitter at @DanJoyner1
For now, find at the below link the IAEA’s 2017 Safeguards Implementation Report, which was provided by a source in Vienna promoting greater transparency in reporting on IAEA nuclear verification. These annual SIRs make extremely interesting reading about how the IAEA views safeguards agreement implementation and compliance by the 181 states that have safeguards agreements in place with the IAEA. There’s also a lot of information in there about the IAEA’s budget and verification activities. It can be usefully read alongside Jonathan Tirone’s excellent analysis here of IAEA monitoring and verification activities in Iran.
With regard to Iran specifically, the 2017 SIR puts Iran, correctly, in a category alongside 56 other states which have a comprehensive safeguards agreement AND an additional protocol agreement in force, but for whom the agency has yet to issue a “broader conclusion” on the absence of undeclared nuclear material in the country. This is a considerable improvement in the consistency with which the IAEA has handled the Iran case, as compared to previous SIRs. I examined the problems of this inconsistency in Chapter 5 of my book accessible here.