New Vertic Brief

I just saw this new Vertic Brief, written by John Carlson and Andreas Persbo. I’ve known Andreas for many years and have had many fruitful debates with him on nonproliferation law subjects, most recently in a BAS Roundtable. We are both members of the International Law Association’s Committee on Nuclear Weapons, Nonproliferation, and Contemporary International Law. I don’t know John Carlson, though I have certainly read his work.

In the continuing spirit of collegial debate, I have to say that there are a number of points about which I disagree with the authors of this piece. While not mentioning my work directly, Carlson and Persbo do seem to be responding to the kinds of arguments I typically make about the limited legal authority of the IAEA. As they say note:

Over the past decade, difficulties in implementation of the safeguards agree­ment between the IAEA and Iran have led to some commentary on the rights and obligations of the IAEA and the inspected state (in this case Iran, but the issues are generic)

Again, this is precisely the topic that Andreas and I, along with Chris Ford, debated in the BAS roundtable.

My first point of disagreement is with the very next sentence of the brief, wherein the authors state:

As this brief will discuss, the performance of a safeguards agree­ment cannot be considered narrowly as a bilateral matter between the two parties to the agreement. Both the IAEA and the inspected state also have responsibilities towards other states, and often towards other international institutions. 

I think that this statement is certainly incorrect as a formal legal matter – safeguards agreements are most definitely bilateral treaties between the IAEA as an international organization, and a single state. This fact has a bearing on interpretation of the treaty, and on determinations regarding compliance. As I wrote in my 2011 book:

Furthermore, one must remember that IAEA safeguards agreements are bilateral treaties between the IAEA, in its exercise of legal personality explicitly granted to it by the IAEA Statute, and a state.  The proposition that the IAEA itself can determine in authoritative fashion that the other party to a bilateral treaty, to which it itself is the other member, is in breach of its obligations under that treaty, has no precedent or analogue in international law.

I know what the authors are trying to argue here, of course. It’s that the entirety of the NPT/IAEA/U.N. Security Council system should be viewed together, holistically, and the purposive spirit of its legal documents achieved, even more importantly than their letter.  

Indeed, the authors say as much when they later argue:

If safeguards are construed too nar­rowly and legalistically they will fail in their confidence-building and assurance function—with potential repercussions for all parties. Lack of full cooperation with the IAEA will, at the least, result in a ‘confidence deficit,’ which will be counter-productive to the inspected state’s own interests. Recourse to legalistic arguments in place of cooperation, far from building confidence, will have the opposite effect.

The problem I have with this approach is, and I mean this about all lawyers and not just Carlson and Persbo, that we all like to be legal formalists when it suits us, but when it doesn’t suit the particular arguments we want to make, we have a tendency to turn all too quickly away from our formalist roots, and toward a more purposive, realist approach to law.  The reason for this is that you always want, if possible, to have the actual text of the law, as objectively rendered, on your side. So you will always try a formalist, textual argument first to achieve your aims. It’s only if you see that a formalistic, textual argument is not supportive of your desired outcome, that you will then retreat to Plan B, and say that even if the letter of the law might not be on my side, the spirit of the law certainly is.

A purposive interpretation of legal sources will focus not on a close reading of the actual text of the legal source, but on the overall purpose or aim of the law, and will apply this macro sense of purpose to the facts under consideration. This is an absolutely classic rhetorical technique for lawyers, and appears to be the tack that Carlson and Persbo are taking here.

The problem with this purposive approach, of course, is that when you don’t clearly tie your legal arguments to the text of the legal sources themselves, determining the “purpose” or “spirit” of the law is a rather ambiguous exercise, with many different possible outcomes and subjective choices of meaning.

This is precisely why the 1969 Vienna Convention on the Law of Treaties in Article 31 made a clear choice to prioritize textual interpretation of treaties, and assigned the more purposive resort to the preparatory debates surrounding the treaty to secondary status in Article 32.

The United States is itself quite (in)famous for its very limited, formalistic interpretations of its own obligations under Articles I & II of the NPT in the context, for example, of the stationing of U.S. nuclear weapons on the territory of NATO member NNWS. In fact, I just wrote a post on this recently. You can see it here.  

Similarly, in order to justify the nuclear technology sharing agreement the U.S. has entered into with India, the U.S. has relied on very limiting, formalistic interpretations of its obligations under Article III of the NPT. As I wrote in my 2009 book (footnotes removed):

In terms of the NPT Article III.2 obligations of the United States, the U.S. has argued that civilian nuclear cooperation with India, including transfers to India of nuclear fuel and enrichment technologies, is not in violation of its Article III.2 obligation not to “provide source or fissionable material . . . or equipment or materiel especially designed or prepared for the processing, use or production of special fissionable materiel, to any non-nuclear weapons state. . . ,” firstly because India is not a non-nuclear weapon state party to the NPT.  The question of whether the term “non-nuclear weapon State” as used in Article III.2 of the NPT refers only to non-nuclear weapons states parties to the treaty, as specified in other NPT provisions, or whether the term in this Article refers more broadly to any state not in possession of nuclear weapons, whether NPT party or not, is one which is debated by international lawyers. However, in the case of India, this distinction is largely moot as India is in possession of nuclear weapons and thus could not be included in any definition of a non-nuclear weapons state.  Thus, the U.S. argues that transfers to India are not subject to this provision of the NPT.

However, critics argue that, even if not a violation of the letter of the NPT’s provisions, the U.S.-India nuclear supply deal is undermining of the spirit of the NPT and of the grand bargain among NPT parties which the treaty represents.   They argue that in concluding this deal to provide civilian nuclear technology to India, the United States, a NuclearWeaponState under the NPT, is giving concessions to a state which has never undertaken the limiting obligations of the NPT, and which has in fact developed and is in possession of nuclear weapons.  To NPT NNWS which have undertaken the obligations of the NPT and not pursued nuclear weapons programs as a result, and which have submitted all nuclear sites within their territory to full-scope IAEA safeguards, this deal appears to give to India, in exchange for only the most basic of nonproliferation commitments, the reward which NPT NNWS were required to undertake and maintain these much more stringent obligations to obtain.  Many NPT NNWS see this granting of nuclear technology concessions to India by an NPT NWS as a positive reward for India’s decision to remain outside the NPT framework, and develop and maintain a nuclear weapons arsenal, which is the precise opposite to the incentive structure which the NPT sought to codify into international law.  

So again, we are all legal formalists when it suits us; generally for the purpose of limiting our own legal obligations. But we can also be quite easily tempted to become occasional legal realists, particularly when it’s a question of the other guy’s legal obligations, which we would like to have understood very broadly and comprehensively.

So this is why I think one has to view rather cynically arguments by Western states that NNWS should see their safeguards obligations as part of a holistic nonproliferation program, and should therefore basically accept whatever scope of authority the IAEA decides it has within this program because, after all, the IAEA is a good guy, and is trustworthy, and is only fulfilling its role in this grand and noble institutional creation of the international community, and would never (gasp!) abuse its authority or be captured by political interests. Shame on you for even thinking that!

Adopting a legal formalist approach to understanding nuclear nonproliferation obligations is not a manifestation of low esteem for the nonproliferation cause. If it was, the U.S. would be one of the chief culprits. It is, rather, an insistence upon the balance of rights and responsibilities, commitments and protections of state sovereignty, that were carefully negotiated and codified into the relevant legal documents.

There is the U.S. nonproliferation community these days a pervasive spirit of revisionism of nonproliferation law, as it applies to developing NNWS’ obligations under the NPT and IAEA safeguards agreements – the idea that the nonproliferation legal frameworks need evolving, and that this can be accomplished through fiat by the IAEA Board of Governors, and the governments of powerful NWS.

But this is not how international law works. Expansion of the international legal obligations of a state can only be accomplished consensually. This is one of the fundamental principles of the international legal system, and is one which, with regard to their own legal obligations, powerful states jealously guard. There should be no greater concern attached to developing states’ insistence upon it.

The last point of disagreement I’ll mention is with the authors’ arguments in this piece that the IAEA has the authority to investigate and assess possible military dimensions of a safeguarded state’s nuclear program. Basically this means that the IAEA should investigate and assess any activity within the territory of a safeguarded state that could potentially be of use in a nuclear weapon development program, and that NNWS must cooperate with the IAEA in these investigations in whatever way the IAEA thinks they should. I’ve already written about the PMD issue pretty extensively, and it will suffice to say here that I disagree completely with the authors’ arguments on this point. See my writings on this e.g. here, here, here.

I welcome Carlson’s or Persbo’s comments or counter-arguments.