Exactly one year ago today, the Conference of the States Parties in its 20th session decided on the establishment of the Advisory Board on Education and Outreach (ABEO) as a subsidiary body to the Organisation for the Prohibition of Chemical Weapons (OPCW).
In 2016 the 15-member board met twice and formulated its first sets of recommendations. On 1 December I reported on the ABEO’s work to the 21st session of the Conference of the States Parties. Due to a 7-minute time restriction I could deliver only a summary of the most important points. Below is the full text of the statement as circulated to the states party to the Chemical Weapons Convention.
[Cross-posted from The Trench]
At last year’s Conference of the States Parties you decided to establish the Advisory Board on Education and Outreach (ABEO) as one of the subsidiary bodies of the Organisation for the Prohibition of Chemical Weapons (OPCW). The ABEO received as mandate to advise the Director-General or States Parties on matters of education, outreach and awareness-raising, and public diplomacy concerning the Chemical Weapons Convention (CWC) and its international and domestic implementation in relation to States Parties and key stakeholder communities. Put differently, it seeks strategies to assist the OPCW with deepening the involvement of the stakeholder communities in preventing the re-emergence of chemical weapons.
The Director-General appointed 15 members to the Board, whose mandate started on 1 January of this year. Based on the principle of equitable regional distribution, they comprise:
- 3 persons from Africa: Kenya, Morocco and South Africa;
- 4 persons from Asia: China, India, Iraq and Japan;
- 2 persons from Eastern Europe: Poland and the Russian Federation;
- 2 persons from Latin America and the Carribean: Argentina and Mexico; and
- 4 persons from Western Europe and Other States: Belgium, Germany, the United kingdom and the United States.
Two members—Prof WANG Wencai (China) and Dr Austin ALUOCH (Kenya)—are Alumni of the Associate Programme. One member, Prof. Alastair Hay (UK), is a recipient of the 2015 OPCW–The Hague Award. While the ABEO resulted from groundwork laid by the OPCW Scientific Advisory Board (SAB), ABEO membership includes not just chemists and other scientists, but also experts with backgrounds in the political sciences, history, diplomacy, as well as persons well versed with issues in chemical weapon disarmament, education and outreach strategies, or the functioning of National Authorities.
In addition, and as a first for Advisory Boards, the ABEO can also benefit from the expertise of select observers. Observers are non-permanent and they are invited in function of the meeting agenda. However, the Rules of Procedure stipulate that a representative of the International Union for Pure and Applied Chemistry (IUPAC) is to participate in the ABEO’s work as a permanent observer. At their second meeting in October 2016, the Board Members decided to accord a similar status to a representative from the International Council of Chemical Associations (ICCA).
In its first year of activity the ABEO has met twice, in April and October 2016. With the help from the Technical Secretariat an electronic discussion platform has been set up, so that Members can continue to discuss and develop recommendations in the so-called ‘intersessional period’. This electronic platform allows the setting up of sub-groups in which ABEO Members, as well as observers, can develop ideas and discuss working papers on topics decided at the preceding meeting. The goal is to have well-conceived proposals for final consideration and adoption by the full Board.
Towards common understandings
Mr Chairperson, the first meeting (28–29 April 2016) focussed mainly on team building. Each member and observer presented an overview of their education and outreach activities, thereby highlighting objectives and describing their respective methodologies. The Board furthermore heard detailed briefings by Technical Secretariat staff members. Substantive work developed along two tracks, namely specific requests submitted to the Board by the Director-General requiring short-term replies, and identification of strategic-level, i.e., longer-term aspects of developing education and outreach methodologies.
Strategic-level thinking implies a need for common understandings for key concepts and terms as well as identification of key stakeholder communities. It also implies the identification, elaboration and prioritisation of issue areas, the development of multi- and cross-disciplinary approaches to education and outreach, and the permanent evaluation of tasks and activities in function of changing circumstances under which the OPCW must continue to function.
The ABEO proceeded in its second meeting (4-6 October 2016) with identifying key stakeholder communities and plotting how they and the OPCW interact with each other.
As the CWC effectuated a clear division of labour between the Technical Secretariat and the National Authorities it followed naturally that stakeholdership in the convention exists on both the international and national levels. From the exercise also followed the insight that certain stakeholder communities may be targets of the OPCW’s education and outreach activities, while they may be partners under different circumstances. The press is a case in point. A well-conceived public diplomacy strategy can clarify to journalists the CWC’s intricacies, the functioning of the OPCW and the tasks and responsibilities of the Technical Secretariat in its various missions. When the OPCW makes the headlines, the media will be better situated to reflect accurately the challenges and opportunities facing the community of States Parties.
For its deliberations, the ABEO accepted working definitions for concepts such as education, outreach, training and public diplomacy. Such differentiation in turn enabled identification of primary strategies to be developed under each concept in function of the type of stakeholder community to be engaged. Moreover, it will also enable the ABEO to take into consideration different regional and local cultural approaches to education and outreach. The ABEO Members are agreed that no single methodology can fit all circumstances.
First substantive recommendations
The upcoming 20th Anniversary of the CWC’s entry into force was one area that preoccupied the ABEO in its first year. During the intersessional period the subgroup dedicated to the topic already submitted to the Technical Secretariat a list with concrete programme elements and activity proposals. At the second meeting the ABEO formulated more conceptual recommendations. These include:
- to brand the celebration as ‘20th Anniversary Year’ to emphasise that a series of activities rather than a single event will commemorate the CWC’s entry into force, as well as provide a common heading for all regional and national commemorative activities;
- to set up a website dedicated to the 20th Anniversary Year with information about events. A celebration-specific logo could be adopted;
- to promote besides the major event in The Hague global, regional and national celebration;
- to ensure OPCW strategic outreach to stakeholders. The 20th anniversary celebration in The Hague should include senior representatives of the sciences and industry. For other activities, appropriate regional or international industry and scientific organisations ought to be invited;
- to celebrate the science behind the effectiveness of the OPCW in meeting its mandate in regional or national events. These could be organised back-to-back with regional National Authority events and involve key partners, such as academe and industry;
- to produce a film on the destruction of chemical weapons so as to preserve some filmic record of these processes for future education of scientists and engineers;
- to provide early notification to enable organisational planning of regional and local events; provide funds to initiate and support such regional and organisation; and create outreach material on the OPCW and the CWC, specific to the 20th Anniversary Year, for broad distribution.
A global campaign condemning the use of the industrial toxic chemicals—chlorine in particular—as weapons led to many letters by chemical associations worldwide and increasingly by chemical industry associations being sent to the Director-General. The ABEO recommended that these letters be publicised on the OPCW website. It gives me great pleasure to note that this recommendation was implemented last Tuesday (29 November).
The ABEO also recommended a thorough review and overhaul of the OPCW’s public diplomacy strategy in function of permanent, systematic engagement with stakeholder communities.
Other recommendations addressed youth outreach and engagement of civil society during sessions of the Conference of the States Parties. Some elements are already being implemented, such as briefings on the workings of the Technical Secretariat to the members of the CWC Coalition attending the 21st Conference of the States Parties.
Mr Chairperson, in preparation for its third meeting next March, an ABEO working group is considering in detail how to assist National Authorities with carrying out education and outreach activities. In particular it will seek to enhance regional coordination among National Authorities, encourage use of existing educational materials, and stimulate ideas for developing new ones. Online educational tools already developed by the Technical Secretariat will be assessed and recommendations for methodological harmonisation and other improvements submitted.
A second working group is looking into ways to engage specific stakeholder communities, in particular scientific associations, industry, professional organisations and other expert communities. Primary themes to be developed include raising barriers against erosion of norm against chemical weapons and the CWC, means and ways of keeping those stakeholder communities informed and engaged in Convention-mandated activities, and engaging them in the further development of the treaty regime in light of the changing national or international environments in which the CWC must remain relevant.
Other working groups of ABEO Members will consider recommendations on how to address immediate challenges to the CWC regime as part of a public diplomacy strategy, ways to engage with other international organisations in promoting peace and disarmament education.
Work will also continue on ‘Longer-term strategies’, ‘Outreach at the regional, national and local levels’ and ‘Youth outreach’.
Besides these activities ABEO Members have also actively participated in regional seminars for National Authorities organised by the Technical Secretariat. In my capacity as Chairperson I made presentations on opportunities for education and outreach in the Workshop on Article XI implementation and the Annual Meeting for National Authorities. Finally, the ABEO and the Scientific Advisory Board have established a working relationship and plan to collaborate and consult with each other in areas of common interest.
Mr Chairperson, by way of conclusion I wish to thank on behalf of the Board Members all States Parties that have recognised the work of the ABEO in its first year and support its goal of promoting substantive interaction between the OPCW and its many stakeholder constituencies with a view of safeguarding the world from a re-emergence of chemical weapons. We are looking forward to your continuing endorsement, including in a more tangible form when we will set up a trust fund to support our projects and activities. And as a final reminder: you the States Parties can also request the ABEO’s advice on pertinent matters.
I request that the full text of this statement be considered as an official document of the Conference and published on the OPCW public website.
I thank you.
I saw this story originally over at the very useful ICANW website. The story links to a memo sent by the U.S. to NATO states, in which it urges them to vote no on the UNGA First Committee resolution to begin the process of negotiating a nuclear weapons ban treaty.
I found the U.S. memo interesting for lots of reasons, including its review of the provisions that the UNGA’s Open-Ended Working Group (OEWG) has recommended for consideration and possible inclusion in such a ban treaty. The OEWG’s report that is referenced in the U.S. memo can be found here. Skip down to page 19 of the OEWG report to see the list of suggested provisions in Annex II.
It’s probably important to bear in mind that this seems to just be a list of possible provisions to consider when negotiating the structure of the treaty. They aren’t presented in any kind of organized, coherent fashion as they would need to be in a draft treaty text. Some of them seem pretty straightforward. Others, like a provision requiring “national legislation criminalizing support for activities proscribed under the convention,” are very problematic.
I really don’t know how much support each of these suggested provisions has among the states and civil society groups who will be influential in orchestrating proposals for structuring the treaty during the negotiations.
My understanding has been that the plan is to proceed in a two-step treaty making process, as I discussed in this post from earlier this year, reviewing a piece by Tom Sauer. So I was a little surprised to see that the OEWG included among its suggested provisions a section on “phases for elimination,” including “Obligations to eliminate nuclear arsenals within an agreed time frame and in a specific manner . . .” I thought that the actual elimination of nuclear weapons stockpiles – through agreed schedules, methods, and verification mechanisms – was a subject that was going to be saved for the second step of treaty making, i.e. an actual nuclear weapons convention. And that the initial nuclear ban treaty that will be the subject of the negotiations beginning in March 2017, would really only include fairly general normative provisions prohibiting possession, proliferation and use.
I’m sure there are differences in thinking on these issues of structure and sequencing even among the core nuclear weapons ban movement members. But I hope they are thinking this all through with the help of legal advice. March is just around the corner, and the U.S. memo to NATO states gives just a taste of the kinds of legal arguments that nuclear weapons states will make in an effort to undermine the effectiveness of a new nuclear ban treaty if it isn’t structured in the right way.
I’m certainly available to advise on these issues is anyone is interested.
[Cross-posted from The Trench]
The 8th Review Conference of the Biological and Toxin Weapons Convention (BTWC) ended today, 25 November, in great disappointment. While during the preparatory meetings in April and August it was already clear that the exercise would be difficult, nobody really anticipated that so much would be lost in two days. There is even less than in the previous final documents: the meetings of experts (MX) held during the summer have been stopped; the meetings of states parties (MSP) have been preserved, but without a sense of purpose. Except as a way to preserve the Implementation Support Unit (ISU).
The number of staff of the ISU was not increased. The still incomprehensible Spanish veto against the expansion of the ISU in the final two hours of the 7th Review Conference in 2011 (despite EU consensus to support such increase of staff) is having lasting consequences of ever greater impact. I guess that we can be grateful that nobody raised the flag to argue that with the elimination of the MX the ISU would have a reduced workload (not exactly true, but then politics are about perceptions, not truths).
In their final declarations many countries, especially from the Non-Aligned Movement (NAM), put the blame squarely on Iran (without naming the country). This country’s obsession with returning to a negotiation format like the Ad Hoc Group to achieve the higher goal of a legally binding instrument—possibly with the sole goal of antagonising the USA—led it to exploit to the fullest to principle of consensus decision-making to torpedo any effort at compromise. Many NAM countries—often developing nations—lost out on concrete opportunities for international cooperation and assistance. They were acutely aware of what they were losing. Having participated in four review conferences, I cannot remember so much direct criticism directed against one of their own.
More was on offer, and for a moment in the late morning and early afternoon expectations rose that a meaningful outcome might still be possible. By 4pm those hopes were dashed; even the continued existence of the ISU was in doubt. Fortunately, that danger was averted.
I will write up some personal recollections and impressions over the next week or so. There were more dynamics driving the negotiations that prevented useful compromises during the endgame.
Meanwhile, I have scanned the final document and the budget assessment (BTWC 8th RevCon – Final doc (Scan)) as it was distributed to delegates. These documents contain typographical and grammatical errors. A clean version will soon be published by the ISU.
This little pearl of a blog post over at Iran Review was brought to my attention today. Its actual title is “Anti-Joyner: Debunking the Misinterpretation of the JCPOA.” In it the author, Kaveh Afrasiabi, who is a political science PhD, argues that I have a pro-U.S. bias and that I’m just parroting the arguments of the U.S. State Department.
I have to say that’s a new one! In all the criticism I’ve received in the past, I’ve never been argued to be a USG shill. In fact it’s usually exactly the opposite. I think the U.S. government would be just as surprised and amused as I am to hear that allegation! This, to me, just means that Afrasiabi has no idea who I am and probably just assumed that anyone making the argument that the JCPOA is legally non-binding must be acting on behalf of the U.S. government.
Anyway, Afrasiabi goes on to argue at some length that I am incorrect in my determination that Security Council Resolution 2231 did not have the effect of making the JCPOA legally binding on the states parties to it.
As an aside, it never ceases to amaze me how confident non-lawyers often are – particularly in the nonproliferation area – in engaging in international legal analysis on complex legal questions. Do you think these people are just as confident in giving medical diagnoses? Maybe Afrasiabi should take a shift at his local emergency room and give the poor medical doctors a break.
I’m not going to dignify his post any further by serious substantive engagement with it here.
Incidentally, though, in my response to a question posed in the comments to my recent post over at Ejil:Talk I give a basic guide to UNSCR interpretation that Afrasiabi would do well to consult if he wants to understand the errors in his analysis.
[Cross-posted from The Trench]
Tabletop Exercise (TTX) on the Implementation of Article VII of the Biological and Toxin Weapons Convention (BTWC)
8-9 November 2016, Palais des Nations, Geneva
[Prepared by Élisande Nexon, Ralf Trapp and Jean Pascal Zanders]
Article VII of the Biological and Toxin Weapons Convention (BTWC) provides that
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.
In recent years, considerations such as emergence and re-emergence of diseases, including Ebola, or the use of chemical weapons in Syria, have highlighted challenges pertaining to public health and assistance facing the international community. Many lessons have in the meantime been learned. The Eighth Review Conference gives the international community the opportunity to consider the potential contribution of Article VII to those considerations.
To this end the Fondation pour la recherche stratégique (FRS) and the United Nations Institute for Disarmament Research (UNIDIR) convened a workshop on 8 and 9 November 2016. The primary goal of the exercise was to stimulate reflection on the decision-making processes both within a BTWC State Party and by the international institutions that may become involved if Article VII were to be activated. It also aimed to identify issues that require further study and clarification.
The workshop benefited from financial support by France and the UK Foreign and Commonwealth Office. Twenty-six national representatives and experts from civil society organisations, including public health and disarmament experts, participated in the exercise.
Fostering discussion on the implementation of Article VII: General framework of the tabletop exercise
The exercise enabled participants to exchange views based on a scenario involving a pneumonic plague outbreak in several locations. All victims had been exposed to the same genetically-modified strain displaying enhanced antibiotic resistance. The circumstances aroused suspicion about possible deliberate release. The scenario covered only the timeframe between the detection of an outbreak and the moment when the international community would be called upon under Article VII of the BTWC to offer assistance to the country suffering a major outbreak.
The exercise comprised three breakout sessions. In each session the plot advanced to the next stage of major decision-making by governments. Workshop participants were instructed not to play the scenario, but to consider themselves as a committee of government officials that has to assess alternative policy options and make a final recommendation to the minister. Participants split into three groups, each one representing a different perspective, namely that of the country in which the outbreak was first noticed, the neighbouring country suspected of being the perpetrator of the attack, and a nearby neutral country that might conceivably become an assistance provider.
The exercise was designed to examine specifically in which ways the BTWC as a disarmament and security treaty could contribute to mitigating a (suspected deliberate) outbreak in addition to other international assistance mechanisms. It factored in the current lack of procedures or mechanisms for its implementation.
This synthesis aims at underlining the main conclusions reached and questions raised during the tabletop exercise.
Phase 1: Assessing the outbreak
In the opening stage in the scenario, officials faced an unusual public health situation, but deliberate release is not yet suspected.
All participants therefore viewed response and assistance through a public health lens irrespective of the country they represented. There was an emphasis on national responsibility for assistance, risk assessment, preparedness and coordination with international organisations, with a leading role for ministries of Health. The obvious approach at international level would be to rely on the World Health Organisation (WHO) and the International Health Regulations (IHR, 2005), or possibly the Office for the Coordination of Humanitarian Affairs (OCHA).
Participants emphasised emergency response. Striving for efficiency, they considered options in view of available information to swiftly address public health challenges. They excluded steps with no clear benefits or that could hinder collaborative approaches.
In this context, they did not discern any grounds to invoke Article VII. Some participants also pointed to the lack of clear procedures for triggering Article VII as a major drawback in a context when speed is of the essence.
In the rapidly unfolding health crisis, it would probably have proved too difficult to ascertain in a short timeframe whether the outbreak resulted from a deliberate release. At this stage taking the BTWC framework into consideration in the decision-making process proved difficult. The absence of clear procedures on how to trigger Article VII and absent a clear view of how the provision could offer additional benefits reinforced this assessment. Furthermore, participants deemed it plausible that confirmation of the deliberate nature of the outbreak could be considerably delayed, even arriving after containment of the outbreak. This raised the question of the benefits of invoking Article VII at a later stage. Yet, in such a situation, assistance could still address such issues as strengthening a weakened public health system, decontamination and site remediation, or any other measures aimed at full recovery.
Phase 2: Developing policy action – contingencies
In the second stage suspicion grew that the outbreak might have been deliberate. However, firm confirmation was still lacking.
In this context, all breakout groups made reference to the desirability of investigating the reported incidents, usually with reference to the UN Secretary-General’s mechanism to investigate alleged use of biological weapons (UNSGM), to clarify whether they had been deliberate, and if so, to establish, if possible, the origin of the released agent. Such an investigation almost became a precondition for considering triggering Article VII. Participants however stressed that in an emergency situation, all channels of assistance must be pursued irrespective of a decision by the UN Security Council (UNSC).
It was however underlined that, while the exact nature of the outbreak (deliberate or natural) is not confirmed, activating Article VII can in itself be viewed as an implicit accusation. In this perspective, providing assistance through the BWC could equate to endorsing this allegation and taking sides in a conflict. In the absence of confirmation, be it by a UNSGM investigation or by a determination by the UNSC, participants felt that invoking Article VII may be counterproductive as it pre-supposes a hostile attack when this has not yet been clearly established. This could politicise the situation and the assistance operations planned or under way, thereby significantly complicating the provision of humanitarian assistance. There was therefore a general feeling that the provisions of article VII are relevant only when there is a confirmation of a violation of the Convention.
An issue that came up during the discussions was whether a State alleging that biological weapon was used might request through Article VII assistance with its national investigation into the nature and origin of the outbreak. There was a broadly shared view that providing assistance and facilitating the investigation should preferably be done on a multilateral basis. This did not preclude bilateral initiatives. Besides, even after receiving a request through Article VII, a country may opt to channel assistance through other existing mechanisms.
Discussions highlighted key difficulties pertaining to the request for assistance. The question of to whom it should be addressed was raised. Additional questions pertained to what would be expected from the recipient and the exact nature of the mechanism under the Convention. The content of the request is also of importance, with the issue of whether or not, and how to characterise the suspected attack, as it would go much further than merely drawing attention to a violation of the BTWC. The request could include elements such as information about the outbreak that led to an assistance request, the types of assistance required, including ones going beyond public health assistance, as well as a statement that such assistance would not duplicate efforts already underway as part of the public health response coordinated by WHO. The consequences for the State Party once it has sent the request should also be clarified, especially in terms of coordination of the response.
Phase 3: Exploring matters further
Impact of the deliberate factor on the response
Understanding how the fact that an outbreak resulted from a deliberate release would alter the response process and impact on the way international organisations such as WHO may be involved is a key element. This element was discussed among experts during the TTX. Considering the notion of continuum between natural events and deliberate ones, it is worth noting that, while there might be a technical continuum, especially during the early stages, it is far from granted that there would be a political one. Biological weapon use would indeed constitute an act of war involving an illicit weapon, which may shift the political focus away from a routine public health response paradigm towards a different type of action by the State that felt under attack.
State parties agreed at past Review Conferences that, “in view of the humanitarian imperative, pending consideration of a decision by the Security Council, timely emergency assistance could be provided by States Parties, if requested.” However, TTX participants, whatever role they played, felt that in view of its political consequences the violation of the Convention had to be proven before Article VII could be invoked.
An investigation of such an allegation could be a lengthy process during which State Parties may be reluctant to invoke Article VII. As a consequence, any emergency response under the BTWC would most probably be severely delayed and meanwhile States would resort to other available mechanisms and procedures.
With regard to a slow-moving disease (e.g., anthrax) rather than a sudden and fast-spreading outbreak, the scale of the crisis and the possibility of a deliberate release may not be immediately apparent, making it more difficult to invoke Article VII in a timely way.
The crux on the matter is thus evidence and the level of proof required to confirm a violation of the BWC and the use of biological weapons. It raises the question of the threshold for activating Article VII. At the international level, deciding what would constitute sufficient proof is the prerogative of the UNSC, but it was pointed out during the exercise that, at a national level, this would be a political decision that takes a range of factors into consideration (i.g., evidence and scientific findings, intelligence, political information, elements of context). From the perspective of the victim country, political considerations irrespective of the scientific threshold could inform the triggering of Article VII.
According to participants, dealing with plant and animal pathogens would not alter significantly the response process: first, national response, followed by assistance, and, should an investigation identify deliberate intent, then the BTWC might be called upon. The World Organisation for Animal Health (OIE) and/or the Food and Agriculture Organisation (FAO) would be involved because of the resulting food security issues.
Considering different types of assistance
The scenario allowed to explore further the types of assistance that could be required under article VII. Regarding those that could be envisaged under Article VII, but which could reach far beyond what would normally fall under the scope of humanitarian assistance, the following possibilities were advanced:
- Medical and protective equipment
- Capacity building of local staff for emergency response
- Strengthening of laboratory capacities
- Non-medical aid such as water and food
- Bio-forensics and the application of the chain of custody procedures
- Veterinary / phytosanitary assistance
- Long-term recovery means to address economic, social, and medical needs
- Military assistance, intelligence cooperation and law enforcement (depending on the context of the event).
Some participants expressed the view that some of the above suggestions could be implemented via Article X of the BTWC on international cooperation.
Besides, as some channels exist that have already been tested for humanitarian assistance, some States might consider the possibility of using Article VII as a vehicle for funding disarmament related actions or investigation of allegations.
Implementing other provisions of the BWC
Considering other provisions of the BWC that States Parties may consider using in such a crisis, there was general agreement among participants that the consultation mechanisms under Article V could be a useful tool. Article VI could be used as well, as it might lead to a determination by the UNSC that a violation of the BWC had taken place. That determination could then establish a trigger for the application of Article VII assistance provisions. However, other participants felt that a State Party may also approach the UNSC directly under Article VII, without first bringing the matter to the UNSC under Article VI.
However, during the exercise none of the breakout groups considered the use of either Article V or VI appropriate in the context of the scenario, the delays in view of the emergency being a prime consideration.
This exercise showed the interest of such an approach to foster discussions among experts. The results underline the value of follow-on exercises to explore in greater depth specific issues uncovered during this TTX. These would require the involvement of a broader range of stakeholders extending beyond public health and disarmament experts. Future exercises should also take existing capacities in States into consideration in order to gain a better understanding of specific requirements by State Parties.
[Note: The full report will be published in the week of 21 November 2016.]
Well it’s been a rough few days here as I and many others in America have gone through the stages of grief following Donald Trump’s victory in the presidential election last Tuesday. I learned about the results as I was walking through Frankfurt airport, on my way back from a week in Amman, Jordan.
The Flight from Frankfurt to Chicago was a very difficult one, as I grappled with the reality through the haze of lack of sleep and disorientation.
Among the many issues that will be affected when Trump assumes the U.S. presidency in January is of course the Iran nuclear issue. Trump famously stated on the campaign trail that “My number one priority is to dismantle the disastrous deal with Iran.” I don’t actually think this is his number one priority, but nevertheless a President Trump and his foreign policy team will most definitely not be the champions of the JCPOA that President Obama and Secretary of State John Kerry have been.
Of course this all comes as a shock to most of us who work in the nonproliferation area. I genuinely thought that the JCPOA would, under a Hillary Clinton presidency, perhaps not be as positively supported by the U.S. administration as it had been, but that nevertheless the U.S. would seek to keep its commitments under the deal. And as a side note, I also thought that this meant I probably wouldn’t be writing that much more about the JCPOA, and I welcomed that.
But now we are faced with a new reality and a lot of uncertainty about specifically how Trump and his foreign policy team will treat the JCPOA, as well as whether Republicans in Congress will now – with Trump as president and willing to sign it into law – be successful in imposing new economic sanctions on Iran through statute.
I thought I would just offer a few initial observations and thoughts about the various questions that we now face relative to the JCPOA:
1. I have seen arguments circulating around that because the JCPOA was endorsed by the U.N. Security Council in Resolution 2231, the commitments made in the JCPOA are therefore legally binding obligations under international law, and that President Trump therefore legally cannot withdraw the U.S. from participation in the agreement. This is incorrect. The JCPOA is not a legally binding agreement (i.e. a treaty) under international law. And the hortatory endorsement of its terms in Resolution 2231 does not change that fact. From a legal perspective, President Trump could declare that the U.S. no longer intends to comply with the terms of the JCPOA without incurring the legal responsibility of the United States. The JCPOA is a set of political commitments undertaken by its parties. It is only the political will of the parties that keeps the agreement together.
2. That being said, some of the JCPOA’s commitments – a number of which have already been implemented by the parties including the U.N. Security Council itself – have legal implications. Iran’s provisional application of the IAEA Additional Protocol, the U.N. Security Council’s removal of its economic and other sanctions on Iran through Resolution 2231, and the removal of unilateral economic sanctions under domestic law by the U.S. and the European Union, have all already occurred as of Implementation Day, as stipulated in the JCPOA. President Trump could unilaterally decide to remove the presidential waivers that have implemented most of the U.S. unilateral sanctions relief. The most extreme legal move the U.S. could make under President Trump would be to trigger the snapback procedure stipulated in Resolution 2231 in order to re-apply the now removed U.N. Security Council sanctions. Here is a link to my chapter on the JCPOA from my – now even more timely! – recently published book as a reference for reminding readers about what is in the JCPOA.
3. What is President Trump (and by the way you have no idea how much it pains me to write that phrase) likely to do with regard to the JCPOA once he takes office in January? The short answer is that nobody knows. What could he do? Well, he could do a number of things. He could:
A) simply adopt a hostile tone and approach to the JCPOA, stopping any rhetorical and other activities encouraging foreign banks and businesses to engage with Iran, but not formally state the U.S. intention to not comply with the JCPOA going forward;
B) adopt a hostile tone and approach and additionally allow Congress to adopt new non-nuclear economic sanctions on Iran that do not per se violate the letter of the JCPOA, but that undermine its spirit and effects;
C) adopt a hostile tone and approach, and actually abrogate the JCPOA by re-applying the now waived nuclear sanctions through presidential action, in addition to going along with new non-nuclear sanctions by Congress;
D) as the most extreme legal option, adopt a hostile tone and approach, formally abrogate the JCPOA by reapplying nuclear sanctions, allow Congress to apply new non-nuclear sanctions, and initiate the snapback procedure under Resolution 2231 to re-apply the now lifted U.N. Security Council sanctions.
And there are of course a number of other different permutations of these same options.
4. With each one of these courses of conduct by the United States, both the other members of the P5+1, as well as Iran, will face a different reality to what they have faced to this point, and will have to decide how to react .
It seems to me that European states, as well as Russia and China, are likely to maintain their current course of support for the JCPOA and re-engagement with Iran even if the U.S. decides to pursue any of options A-C above. I don’t think that there is any will to go back to the pre-JCPOA posture of unilateral sanctions on Iran by any of these states, and I expect that the slowly but surely building current of trade deals being made between businesses in these states and Iran are likely to be allowed to continue.
If the U.S. were to re-impose or even strengthen secondary banking sanctions on foreign banks, it’s hard to say if that would have any effect on the pace of re-engagement with Iran by European and Asian businesses, mostly because they’ve already had to find ways to work around unclear U.S. banking sanctions, and haven’t relied on fearful big European banks with strong connections to the U.S. So even the re-imposition or strengthening of U.S. unilateral sanctions wouldn’t seem likely to seriously change the current dynamics of re-engagement between Iran and other countries.
5. It seems to me that there are only a few scenarios in which the JCPOA, and the essential dynamics of its current implementation, could be seriously threatened. One would be if the U.S. took the ultimate legal step and initiated the snapback procedure to re-impose U.N. Security Council sanctions. These sanctions include prohibitions on trade as well as asset freezes on individuals and entities, and they would be binding on all U.N. member states. That’s not to say that the Security Council sanctions in and of themselves would grind re-engagement to a halt, as they only explicitly cover relatively discrete sectors of trade. But I think that there would be a significant chilling effect on most all foreign business transactions with Iran which would flow from the re-imposition of Security Council sanctions.
This is to say nothing of the political implications in Iran which would flow from such a step. It’s hard to predict how the domestic political forces in Iran would react to U.S. action pursuing options A-C above. President Rouhani might, and I stress might, be able to keep conservative groups within the Iranian government from forcing him to withdraw from the JCPOA if the U.S. pursues any of options A-C, although I have serious doubts about his ability to do so in response to option C. However, I don’t think the moderate forces in Iran would triumph if the U.S. actually forced the re-imposition of U.N. Security Council sanctions under option D. I think that would be too much for conservatives, and in particular Ayatollah Khamenei, to swallow, and that Iran would under that circumstance likely withdraw from the JCPOA and possibly dramatically resume the nuclear work it ceased under the JCPOA’s terms. I readily confess that I am out of my element of expertise here in trying to guess how the Iranian government, in all of its complexity, would respond to U.S. actions. Perhaps I can get a better informed expert on Iranian politics, like Aniseh Tabrizi or Sanam Vakil, to provide some more insight.
Those are some initial observations. A lot will depend on just how aggressive Trump and his foreign policy team decide to be in their efforts to undermine the JCPOA.
Here’s a picture of me at Petra to brighten my and maybe your spirits.
I wanted to note what most of you already know, which is that last Thursday, the First Committee of the U.N. General Assembly, by a vote of 123 states in favor, 38 against and 16 abstaining, adopted a resolution in which it decided “to convene in 2017 a United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination.” You can read the text of the adopted resolution here.
This is a very big deal, and kudos are due to those who have worked tirelessly on the humanitarian initiative, and who have patiently and methodically pulled diplomatic levers at the U.N. to get to this point. I personally am in support of this initiative to conclude a nuclear weapons ban treaty, and I hope for its success.
It will be fascinating to see what happens when the conference convenes in March. I really don’t know what the state of play is with regard to a proposed draft for the treaty to be negotiated, or how the draft will eventually be structured. If anyone in the movement wants my advice on the topic, I’m certainly willing to give it. Please contact me directly.
Politically, this is an embarrassing development for the Obama administration, which has sought to pride itself on its nuclear disarmament track record. Having to come out in the past few weeks against this initiative was more than a little awkward for them. The same goes for Japan and their special role in past decades in pushing for nuclear disarmament. The fact that Japan ultimately voted against the General Assembly resolution to start this process of negotiating a nuclear ban treaty, cannot but undercut the government’s claim to a principled approach to nuclear disarmament.
I was recently talking with an influential member of the humanitarian initiative movement and we were discussing whether the conclusion of a nuclear weapons ban treaty should be accompanied by the collective withdrawal from the NPT of those states that decide to adopt the ban treaty. I argued that it should. This view is in harmony with things I’ve written before about collective withdrawal from the NPT, such as here. My point in the particular context of the conclusion of a nuclear weapons ban treaty was that, again were such a treaty to be concluded among a sizable proportion of states, the best way to further solidify the norm it would be creating would be for the states parties to the ban treaty to also withdraw collectively from the NPT, thus marking the institution of a new normative standard, unmixed with the baser matter of the NPT. I argued that if the states parties of the new ban treaty did not do so, the ban treaty would be more easily marginalized by the nuclear weapons states, who would continue to assert the NPT as the multilateral cornerstone treaty on nuclear weapons possession, proliferation and disarmament.
The person with whom I was talking disagreed, arguing that the NPT would still be useful to the disarmament movement even after the ban treaty was adopted, because of its established mechanisms for putting pressure on nuclear weapons states, such as the PrepCom/RevCon process. I replied that I didn’t see that much in the way of meaningful pressure had been applied to the nuclear weapons states by virtue of the NPT’s implementation mechanisms for the past fifty years, and that making a clean break from the NPT and asserting the new ban treaty as the new and multilaterally supported standard had a better chance of applying real, meaningful diplomatic pressure on the nuclear weapons states, left as they would be to constitute a minority of states outside of the ban treaty.
All of this looks forward considerably in time to the as yet unrealized prospect of the conclusion of a nuclear weapons ban treaty. And there’s still time to discuss the relative merits of these ideas. But I think that the positive effects of a treaty banning nuclear weapons will be maximized if it is asserted by its members not as an implementation of the NPT, but rather as its replacement.