ESIL Reflections on NPT Withdrawal (UPDATED)

I wanted to pass along that I’ve just recently published a two-part consideration of the legal meaning and application of Article X(1) of the NPT. Article X(1) is the withdrawal provision in the NPT. It states:

 Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.

The pieces were published as European Society of International Law Reflections. You can find them here and here. ESIL Reflections are peer-reviewed, online publications, which are meant to be longer than a standard blog post, but shorter than a standard law journal article. They are a helpful additional online medium for publishing quality international legal scholarship.

My Two Cents on Gun Control Law in America

Finally today, I wanted to thank Barry for bringing up the issue of gun control law in America on ACL. He’s right that it’s a very serious and timely issue, unfortunately due to the terrible recent events in Connecticut. And it does of course fit well within the scope of consideration of this blog. I thought I would add a few of my thoughts to those Barry has already expressed in his posts.

The horrific shootings at an elementary school in Connecticut have caused me to do a good deal of thinking and soul searching about this issue, as they have for so many people in America.

I am a gun owner myself, and have been around guns all my life. My family is from the American South, and some of my fondest memories from my childhood and adolescence are going out target shooting with my dad, or going hunting with my dad and granddad and uncles at Thanksgiving. I go target shooting fairly regularly, and enjoy it as a hobby. I’ve just started to teach my twelve year old daughter how to shoot as well. I see it as a life skill that she should have.  So I’m someone who has seen what responsible gun ownership and use look like, and how guns and shooting sports can be a part of family traditions. And I know that by far the majority of people who own guns in the American South are like me in these regards.

Years ago, when I was in law school, I was a member of the NRA and was a pretty serious proponent of the rights of gun ownership under the second amendment to the U.S. constitution.  I still think that the U.S. Supreme Court’s 2008 Heller decision – the decision in which the Supreme Court interpreted the second amendment to protect an individual right to possess firearms – was decided correctly as a matter of law and history.  However, my own views about what reasonable legal limits can and should be placed on gun ownership in America have evolved significantly over the last ten years or so.

Again, I know that guns can be possessed and used safely and responsibly. And if everyone who wanted to possess and use guns would do so in a safe and responsible manner, as I’ve seen countless people do, then we wouldn’t need to be talking about laws restricting possession and use. But clearly that is not the case in this country, and guns clearly do enable those who commit crimes to kill far more people than they would if they didn’t have guns, or at least certain types of guns. And so I do therefore think that we need to make significant changes to our laws in this country, restricting the types of guns that are lawful to possess.

I won’t go through all the law and policy considerations, because I want to get this done. So I’ll jump right to the chase. In my opinion, bolt action rifles and pump shotguns holding the standard 5 shells should be lawful, as they are now. These guns have clear uses for hunting, home defense, and sport shooting. These are the legitimate purposes for which reasonable gun owners want to possess guns, and I think that a reasonable cost/benefit analysis of these types of guns favors their legality.  

But after long thought, I have come to the personal conclusion that all handguns, and all semi-automatic rifles, fail the reasonable cost/benefit calculus, and that reasonable gun owners should support these guns being made illegal.

Now I know that this is revolutionary stuff to hear from a gun owner like me. And I know well that there is a mountain of opposition in this country, and particularly in the area of the country in which I live, to ANY restrictions on firearms types, let alone the kind of quite significant restrictions I’m proposing here. And my prescription here would mean that I personally would have to give up several of my guns – some of my favorites. But on the whole, I have become convinced that the reality of the harm that the easy availability of handguns and semi-automatic rifles causes in this country, requires these reasonable restrictions on the types of guns lawful to possess.

We gun owners need to set ideologies and absolute principles aside, and be practical and reasonable, and above all compassionate to the present and future victims of gun violence. We should agree on reasonable restrictions that, while not a panacea to violent crime, will save countless lives, while still allowing those of us who possess and use guns responsibly to continue to do so for generations to come.

More Talk of Japanese Nuclear Weapons

This is just a brief post, following up on a longer post I wrote about Japan’s nuclear program a few months ago. I wanted to observe that as a result of the recent elections in Japan, there is a new ruling coalition in the Japanese parliament. Noting the decided shift toward the right that this new parliament represents, this article from the Daily Telegraph makes the following observation:

The LDP’s ally, the Buddhist-backed New Komeito Party, will contribute another 31 seats to the total, giving Mr Abe a “supermajority” and the power to overrule parliament’s upper house.

Even more indicative of the rise of the right was the 54 seats that the Japan Restoration Party claimed.

Only founded in November, the party is led by unrepentant nationalist Shintaro Ishihara, the former governor of Tokyo, who has said he intends to restore the nation’s dented pride.

He has already suggested there is a need for Japan to arm itself with nuclear weapons, expand the military and revise the pacifist constitution.

You can read more about Mr. Ishihara’s views on a range of issues, including nuclear weapons, here.  This guy is the head of a party that controls 54 seats in Japan’s 480 seat lower house, and that is a part of the ruling coalition? Yikes.

This development reminded me of the comments made by Shingeru Ishiba, former Japanese Minister of Defense and now member of parliament and Secretary General of Shinzo Abe’s ruling Liberal Democratic Party, about Japan’s interest in keeping its civilian nuclear program healthy so that Japan could use the capabilities afforded by its civilian program, to develop a nuclear weapon if it ever needed to do so.  As I noted in my previous post, these comments were reported in a Wall Street Journal article in October of 2011:

Many of Japan’s political and intellectual leaders remain committed to nuclear power even as Japanese public opinion has turned sharply against it. One argument in favor rarely gets a public airing: Japan needs to maintain its technical ability to make nuclear bombs. “I don’t think Japan needs to possess nuclear weapons, but it’s important to maintain our commercial reactors because it would allow us to produce a nuclear warhead in a short amount of time,” Shigeru Ishiba, a former defense minister, said in an interview in a recent edition of Sapio, a right-leaning twice-monthly magazine.  ”It’s a tacit nuclear deterrent,” added Mr. Ishiba, an influential parliament member who made similar remarks on a prime time television news show in August while serving as policy chief of Japan’s main opposition party.

So here are two quite influential members of Japan’s ruling governing coalition that have openly supported Japan’s nuclear program as being at least a potential source for development of nuclear weapons. And in Ishihara’s case, he appears to take the poitn further to argue that Japan should weaponize now.

IS EVERYBODY OK WITH THIS?  Hey, IAEA, where are you on this one?  If you really do think that you have the mandate to investigate and assess possible military dimensions of NNWS safeguarded nuclear programs, then shouldnt you be all over this case – a country with a stockpile of separated plutonium, all necessary technology to build a nuclear weapon, and influential government officials openly supporting nuclear weaponization?

New Paperback!

I’m very pleased to announce that my 2011 book Interpreting the Nuclear Nonproliferation Treaty has just been released in paperback in the UK. It looks like it will be out in the US in February or March, but it’s already available for pre-order at Amazon.  This is great because the price is now considerably lower than the hardback – down from $88.85 to a mere $32.25!  I know what you’re thinking – that’s your Christmas shopping done!

I’m Back

I’ve been pretty quiet on the blog for the past couple of weeks. I’ve been travelling – first to Oslo, and then to Paris.  I was in Oslo for a conference organized by ACL’s own Gro Nystuen and the International Law and Policy Institute.  It was a great first session of a two-session conference on Nuclear Weapons and International Law – the papers from which will also comprise an edited volume to be published by Cambridge University Press.  It was a great meeting with high quality presenters covering jus in bello, jus ad bellum, and nonproliferation law aspects of nuclear weapons possession and use. ACL’s own Marco Roscini was also in attendance, and gave a great paper on the ME WMD FZ. My presentation was on NPT Article VI and the obligation of nuclear disarmament. The conference was extremely well organized. I just had to take a picture one morning of the sign on the doorway leading to the room in which the conference was to be held that day – a different room than had originally been planned. In the context of the conference, all the participants knew exactly what it meant. But I wondered what a casual passerby might have thought of the sign. I thought of naming this post “Evidence of Norwegian Nuclear Weapons Stockpile Uncovered,” but I decided to demur. Who knows, maybe Albright will pick up the scent on this one too. I can see it now – a new ISIS report, and a corresponding post over at Arms Control Wonk with 200 comments, fearfully speculating about what it all must mean, and where Norway’s red line is – after which there will be nothing stopping it from nuking Stockholm. Sigh.

My next stop was Paris, where I gave two presentations. The first was on Thursday at the University of Paris Ouest (Nanterre), where I gave a conférence d’actualité at the invitation of Professor Mathias Forteau, sponsored by the Centre de Droit International De Nanterre (CEDIN). My presentation was on Iran’s nuclear program and international law. Monday I gave a similar presentation at the Centre Thucydide, University of Paris II (Pantheon-Assas), at the invitation of Professor Serge Sur. Both of my hosts in Paris were extremely gracious, and there were great discussion periods with the students and others in attendance at the lectures.

I do have some thoughts and developments to report in subsequent posts.

Are We in the Same Roundtable, Chris?

I literally just finished reading Chris Ford’s final contribution to the BAS Roundtable, which was published today. Now, I am a bit delirious having travelled on little sleep over the past day and a half to get to Oslo, but I think Chris has made a gargantuan mistake in this contribution. You can all check me on this, and of course Chris can respond if he wants.  But is it me or has Chris forgotten the original question for the Roundtable? All of a sudden he’s arguing that the CSA doesn’t have the investigate tools and authority the IAEA needs to fulfill its responsibilities, and therefore thank goodness there’s an AP that helps to remedy that problem. But that’s where I’m puzzled – we are still talking about Iran’s safeguards compliance, right? And surely Chris knows that the AP isn’t in force on Iran, right? So hasn’t Chris made a huge mistake in forgetting that we’re talking about the standards that apply to investigation and assessment of Iran, and that Iran doesn’t have an AP? All his extolling of the mandate the IAEA is given in the AP is completely irrelevant to Iran’s case, isn’t it? And actually, in admitting that the CSA doesn’t give the IAEA the investigative tools to do what he’s been saying is their mandate under the CSA – namely investigate and assess both correctness and completeness – isn’t he conceding that my analysis of the CSA has been correct? I’m really puzzled about this piece.

The UNGA Recognizes the State of Palestine

I’ve written a couple of posts lately on the Israel-Palestine conflict, the most recent of which is here, where I argued that the U.N. Security Council should step in to the situation and act under Chapter VII to legally determine the boundaries of a Palestinian state. 

As all will now be aware, the UN General Assembly voted last Thursday to upgrade Palestine’s UN status to “non-member observer state.” I do think that this was a significant manifestation by a supermajority of states (138) of recognition of Palestine as a state, with borders defined by the 1949 Armistice (Green) line.

Of course, this was not the first such manifestation of recognition. To date, 131 of the world’s 193 states have formally recognized the statehood of Palestine. I’m very much a proponent of the constitutive theory of recognition in the law of statehood, so this fact is very influential in my opinion. It’s only the identity of the holdouts (the US and Europe) that keeps the situation at all questionable – though there should be no question in my opinion.  In terms of the Montevideo Convention criteria (permanent population, defined territory, government, capacity to enter into legal relations), in addition to the steady stream of formal recognitions since 1988, the state of Palestine has almost certainly existed for decades, simply in a continuing situation of foreign military occupation.

I think that the numbers here are really striking – both in terms of the recent UNGA vote and in terms of formal recognitions. The US so often likes to get on its high horse about how other countries are out of step with, or flouting the “will of the international community” on some issue. Well on this issue, the shoe is most definitely on the other foot, and it’s the US and Europe that are out of step with the will and judgment of the international community – and decidedly so.

Over at opinio juris, Kevin Jon Heller has some excellent analysis of the International Criminal Court jurisdiction implications of the UNGA vote.

It appears that, in direct response to the UNGA vote, Israel has decided to take the perversely provocative and illegal step of moving forward with additional settlement building in East Jerusalem and the West Bank, in direct contravention of the ICJ’s 2006 determination that such settlements in occupied territory are in violation of international law. These actions threaten to make a two-state solution logistically impossible.

I think that all of these developments only support my argument that it’s time for the Security Council to step in and legally determine the boundaries of the state of Palestine. If it did so, and at the same time ordered Israel to withdraw from its military occupation of Palestinian state territory, it would clear the way for the Palestinians to set up, with international assistance, a working government for their state. Such a full and final disposition of the competing territorial claims of Israel and the Palestinians is the only way to move forward meaningfully toward a lasting, peaceful coexistence between the two nations.

My Final BAS Roundtable Contribution is Posted

Its here. I’ll go ahead and pasted the text here, since its short.  Ford and Persbo will now have a final chance each to respond.

Christopher Ford and I agree on one thing: The IAEA’s Comprehensive Safeguards Agreement (CSA) needs to be read clearly. We differ, however, in that I am reading the CSA both clearly and fully as the text is actually written, and not as Ford and Andreas Persbo — or perhaps the IAEA itself — might wish that the agreement had been written.

Ford and Persbo have cherry-picked phrases from Articles I and II of the agreement to support their arguments that the CSA provides the agency with the authority to investigate and assess whether there are undeclared fissile materials in Iran. However, they essentially disregard the entire rest of the treaty, which details the agreed processes for the agency’s application of safeguards.

It’s as if Ford and Persbo want to convince readers that the CSA and the Additional Protocol are one and the same. Under the protocol, the IAEA’s mandate and the agreed processes for carrying out investigations and assessments, do allow the IAEA, within limits, to investigate and assess the completeness, in addition to the correctness, of a state’s declaration. However, the CSA and the protocol are not one and the same, and the protocol is not in force in Iran’s case. Thus, the IAEA’s mandate for investigation and assessment in Iran’s case must be taken solely from the text of the CSA.

Article I of the CSA is Iran’s basic undertaking, while Article II is the agency’s mandate. Article II states that the agency has the “right and obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”

Chiding me for rendering an interpretation inconsistent with the text of Article II, Ford, when quoting the article, rather conveniently omitted the above-italicized clause entirely. But these words are not just superfluous, as his ellipsis implies — they are essential for a holistic understanding of what Article II means within the context of the CSA. This clause explicitly makes the IAEA’s mandate in Article II subject to, and circumscribed by, the procedures agreed to in the CSA.

If Ford’s interpretation were correct — and the IAEA’s mandate were not limited by the agreed procedures in the rest of the CSA — it would mean that the agency would have unlimited authority to ensure that safeguards are applied on all fissionable material anywhere within the territory of Iran, by any means the agency considers necessary, no matter how intrusive or compromising of Iran’s national security or sovereignty. The IAEA could require Iran to meet any evidentiary standard it unilaterally determined, in order to subjectively satisfy itself of the absence of undeclared materials in Iran (i.e., require Iran to prove the negative).

That is a completely untenable reading of the CSA. No state would ever agree to such a broad and unrestricted mandate for the IAEA. That’s why Article II specifies that the agency’s mandate is subject to, and limited by, the terms of the agreement. Those terms stipulate in detail the process to be followed for applying safeguards. That process essentially involves a declaration by Iran, and the IAEA’s verification of the correctness of that declaration.

The agency, therefore, is simply incorrect when it claims that its mandate under the CSA extends to investigations and assessments beyond the agreement’s terms — i.e., beyond verifying the correctness of Iran’s declaration.