Happy New Year

A happy new year to everyone on the Gregorian calendar.

Today also happens to be my 40th birthday. I feel very officially old today. 

Wishing all of our readers happiness, health and success in the new year.

How Divergent Views on Nuclear Disarmament Threaten the NPT

I saw another excellent piece today, this time by Alexander Kmentt, who is the Director of Disarmament, Arms Control, and Nonproliferation in the Austrian Federal Ministry for European and International Affairs. It was published over at the Arms Control Association website as an opinion piece.

Kmentt discusses the very different ways in which nuclear weapon states on the one hand, and non-nuclear weapon states on the other, tend to view the issue of nuclear disarmament, both politically and legally.  He very usefully links the issues of nuclear disarmament and nuclear nonproliferation, and makes prescriptions particularly for nuclear weapon states to take this divergence of views, and its effect upon the credibility of the NPT, more seriously.  As he says:

Nuclear-weapon states may argue that proliferation is the only real challenge to the integrity of the NPT, whereas procrastination or slow progress on nuclear disarmament is not. This line of argument is self-serving and alarmingly shortsighted. In order to maintain global support for the NPT and the entire nuclear disarmament and nonproliferation regime and to halt the spread of nuclear weapons, nuclear-weapon states need to add much more credibility to their own nuclear disarmament efforts. Through their own example, nuclear-weapon states have the prime responsibility to prevent proliferation, but they urgently need to realize that, in the final analysis, they cannot have it both ways. The alternative would be an irreparable undermining of the NPT with the potential consequence of more and more actors seeking to develop nuclear weapons. The conclusion is clear: nuclear disarmament and nonproliferation efforts can only be achieved in parallel.

An excellent piece with which I agree completely.

Hibbs on Iran and US Nuclear Policy

Mark Hibbs has written an excellent new piece, published over at The Hill, in which he ties together two recent developments in US nuclear policy – the Joint Action Plan agreement with Iran, and the decision to maintain a flexible approach to 123 agreements – and makes some prescriptions for US policy on that basis going forward.  Here are the opening paragraphs:

When Secretary of State John Kerry this fall stepped up negotiations on the first stage of what might become a comprehensive deal to end the Iran nuclear crisis, he cribbed the playbook of administration officials who were fine-tuning the United States’ approach to negotiating bilateral nuclear cooperation agreements with its foreign partners.

In both cases, the administration grasped that an important U.S. policy objective—preventing the spread of nuclear weapons—could not be met by squeezing foreign governments to agree to terms they could and would refuse. In adjusting, the administration walked back commonly held assumptions about how much leverage Washington has to force countries to give up nuclear activities which are permitted under the Nuclear Nonproliferation Treaty.

My reaction to this piece is only to say Amen. I think Mark hits the nail on the head with his analysis, and I highly recommend it to readers.

EU Pettiness on Sequencing

Just a quick post to decry the pettiness of this move by the EU, insisting on an “Iran has to go first” sequencing of the actions agreed to in the Joint Action Plan.  This comes hard on the heals of this really unfortunate and stupid move by the US, adding over a dozen names of Iranian companies and individuals to the US sanctions blacklist last week. Iran responded to the US move by abruptly ending ongoing talks with the P5+1 in Vienna, and having their delegation return to Tehran. This would appear to be a message from Iran to the P5+1 about the fragility of the recent accord – one that I had hoped would be received in the West. I know that there are elements in each government involved that want to derail this diplomatic course of dispute resolution. I will hope that those elements in favor of diplomacy, will work to prevent this kind of reckless gamesmanship going forward.

NPT 2.0?

Friend of ACL Dr. Yousaf Butt, who is now Director of the Emerging Technologies program at the Cultural Intelligence Institute in DC, wrote an interesting and provocative article about what an “NPT 2.0” could look like. It came out around Christmas time last year and seems to have slipped under the radar so I just wanted to highlight it on the blog and get some reactions from the community. I think it’s an important piece, and that it really should start a debate. See the piece here:

http://www.foreignpolicy.com/articles/2012/12/18/radioactive_decay?page=full

I think this kind of normative, forward looking thinking is very important, to lift our heads above the trenches of our, as Yousaf puts it, “endless eye-watering legal debates” about the meaning of the NPT, and remember that the NPT was never meant to be the last word on international legal regulation of nuclear energy and nuclear weapons.  As I argued in my 2009 book, the NPT was seen at the time of its establishment as something of a halfway house – an interim measure to at least stop horizontal nuclear weapons proliferation from getting worse. But as Article VI of the NPT makes clear, the haves-and-haves-not legal framework that the NPT recognizes was never meant to be permanent. Article VI explicitly looks toward future disarmament by the NWS, and further treatymaking that would facilitate this. At some point we are definitely going to need to take a bold next step and redesign the foundational nuclear energy/proliferation international legal framework.  I think that this should happen sooner rather than later, as the NPT has at this point been so thoroughly undermined, and its credibility battered to such an extent, that it seems now to limp along with little but inertia keeping it alive.   

The crux of Yousaf’s article is that the bargain at the heart of the NPT

has become increasingly skewed. Aside from the non-weaponization obligations — which apply only to states without nukes and which are ever more aggressively interpreted — the United States, and most other nuclear-weapon states, no longer appear enthusiastic about the other tenets of the NPT. To the extent that the nuclear haves are interested in disarmament, this is completely divorced from any pressure they perceive from the NPT. Such nuclear arms reductions are typically negotiated bilaterally between the United States and Russia and proceed at their own sweet pace…..Advanced states are also no longer particularly eager to help develop nuclear energy in developing nations — and this is actually a good thing. It is a dangerous and inherently dual-use technology and there ought to be no imperative to disseminate it world-wide, as there is in the NPT. It may have been seen as a panacea technology back when color television was still a novelty, but its dangerous underbelly — in terms of safety, security, and waste — has since been amply exposed.

Yousaf proposes a bold new “more-for-more” deal. The nuclear-weapon states — or at least Russia and the United States, with a hefty 95 percent of the world’s nuclear weapons between them – would offer swift and drastic reductions in their weapons stockpiles in exchange for the outright elimination of nuclear fuel processing activities (such as dual-use uranium enrichment and plutonium processing) in non-nuclear weapon states. 

Also, he states that a

notable difference between the NPT and NPT 2.0 would have to be that the updated version would not encourage the propagation of nuclear power. Aside from a few spectacular disasters, nuclear power has been reasonably successful in most advanced nations — but only because of overt and covert government subsidies. However, these subsidies and the attendant political favoritism have in fact harmed the nuclear industry by perpetuating subpar and, in some cases, outright dangerous reactor designs…..One thing that certainly does not make sense is to have a treaty to force-feed a flawed and dangerous Beatles-era technology to developing nations, as the NPT now does. Just as there is no treaty to send landline rotary phone technology to developing nations in the era of cell phones, there’s also no pressing reason to pass on outdated nuclear technology to non-nuclear-weapon states.

I think this piece is excellently written, and that on most points it’s a persuasive read with which I find myself in agreement.

I’ll just get the ball rolling on the debate, though, by saying that I’m not sure I agree with some of Yousaf’s specific prescriptions for a NPT 2.0.  I like the disarmament stuff, certainly. But I’m not sure I agree about the general policy turn away from nuclear energy that Yousaf has in mind codifying in a replacement NPT. It’s not an issue that I have a strong opinion about, and honestly it gets into some very complex energy policy, economic and environmental considerations that are really not my areas of expertise. But just as one layman on this topic, I suppose I’m someone who continues to think that nuclear energy could have an important role to play in the portfolio of energy capacity, at least in some regions of the world, going forward.  France, China and India certainly seem to think so. So I don’t think I would agree with any actual disincentives to having indigenous nuclear energy programs built into the replacement legal regime. If a country decides, on the basis of its own analysis of the relevant economic and other questions, that it wants to have an indigenous nuclear energy program and nuclear fuel cycle, it seems to me that the legal regime ought to recognize that as a legitimate choice and contain no barriers to it.

In emailing with Yousaf about this further, he has described his vision for an NPT 2.0 as being essentially “agnostic” about peaceful nuclear energy programs – i.e. that it would recognize the right of any nation to have whatever peaceful programs they want, but not advocate for nuclear energy, as the current NPT does, at least as written. I think that with that clarification, I can get on board with this new vision. I agree with Yousaf that our understanding of nuclear technology has changed since 1968, and it is a more complex question now as to whether having a nuclear energy program is right for any given country. So while I don’t think there should be barriers to states choosing to have a peaceful nuclear power program, I can also see how a multilateral program advancing nuclear power around the world is a bit anachronistic now.

With regard to fuel banks, which Yousaf mentions as part of his vision, I have to say I think there is more than one country in the world that would never be able to place their trust in a multilateral fuel bank, no matter where it’s located, and no matter what assurances of supply are given. Some states will simply be unwilling to have their fuel supply dependent upon these promises, and will want to have their own indigenous fuel cycle capacity. And I think it would be difficult and unnecessary to build into the legal regime a mechanism that would deny them that option.

Again, I’m just getting the ball rolling here on the debate. I encourage wide participation, and I’m sure Yousaf will be happy to engage with those who comment.

Is the Iran Agreement a Precedent for Nuclear Export Controls Generally?

That’s what this piece by Victor Gilinsky and Henry Sokolski asks over at the Bulletin of the Atomic Scientists.  They argue:

The plan states that after the agreement is finalized “the Iranian nuclear program will be treated in the same manner as that of any non-nuclear weapon state party to the NPT (Nuclear Non-Proliferation Treaty).” Turn the language around, and it says that the rules that apply to Iran’s nuclear program will be the ones that apply to all other NPT parties.

We, the authors, cannot emphasize too strongly that in view of the joint plan’s promise of equivalency between the rules for Iran’s nuclear program and “that of any non-nuclear weapon state party to the NPT,” the negotiation is not just about Iran. It is about the rules for nuclear power programs throughout the world.

I think this entire thesis by the authors is just frankly erroneous, and seems rather transparently bent on scaremongering in order to undermine further agreement between the P5+1 and Iran.   There’s no interpretive reason, in my view, to turn the text they refer to on its head as they have done, in order to give it more expansive meaning.  I think it’s clear that this provision simply means that in the commonly envisioned end state, and pursuant to a future comprehensive agreement, Iran’s nuclear program will be treated for purposes of nuclear exports, and generally by the P5+1, just as the nuclear programs of other NNWS have been treated.

I do not think, as the authors seem to, that this is some grand new declaration by the P5+1 about general standards for nuclear exports.  The fight over general nuclear export standards by supplier states wouldn’t happen in this forum. It would happen, as it always has, in the Nuclear Suppliers Group, which back in 2011 did decide on new guidelines relevant to export of enrichment and reprocessing technologies.  I wrote about this here at the time.

So in my opinion, this piece by Gilinsky and Sokolski should be filed away in your “Disregard” folder.

The European Court of Justice Weighs in on EU Sanctions on Iranian Businesses

I recently came across a high quality blog that covers European sanctions law and policy.  I recommend it highly to readers. There’s a lot of good material on the blog about the EU’s sanctions on Iranian businesses, and the line of EU court cases that have considered them, and in several instances now struck them down as violative of principles of due process, as I explained here.

The most recent post on the blog is an excellent commentary by Maya Lester on two recent European Court of Justice cases, that were appeals of two of these EU General Court cases.  Lester is right to say that these ECJ cases are extremely important in providing guidance to the General Court, and to national courts within the EU, on European law regarding such sanctions. Lester gives a very good analysis, concluding that the ECJ appears to generally agree with the reasoning of the General Court, with a few significant exceptions.  A must read on EU law regarding sanctions on Iran.

Why is the US OK with Israel Having Nuclear Weapons and Not Iran?

A very good piece in the Washington Post on Monday asks this question, and includes this insightful quote from Joe Cirincione:

The dilemma for Israel is that, should Iran ever develop a nuclear warhead, Israel will surely feel less unsafe if it has its own nuclear deterrent. But, ironically, Israel’s nuclear arsenal may itself be one of the factors driving Iran’s program in the first place.

“History tells us that Israel’s position as the sole nuclear-armed state in the region is an anomaly — regions either have several nuclear states or none,” said Cirincione, of the nonproliferation Ploughshares Fund. “At some point, for its own security, Israel will have to take the bombs out of the basement and put them on the negotiating table.”

Response to Mark Hibbs on Iran Negotiations and the IAEA

Mark Hibbs has written a new piece over at Arms Control Wonk entitled “The IAEA After the Iran Deal.”  Since I am persona non grata at Arms Control Wonk these days, I’ll have to respond to Mark’s post here.

As an aside, I still think it’s a shame that the mainstream nonproliferation epistemic community essentially refuses to engage with me and with my critiques. Their strategy seems to be to welcome inside their tent of engagement and regard any and all who essentially agree with them, reciprocally congratulating each other on being “the expert community” on nonproliferation, and shutting out from meaningful engagement and debate any that offer a serious critique of their commonly agreed narrative and assessment of correctness and incorrectness.   In international legal academia, if someone makes a serious, well founded argument that challenges the orthodox understanding on an issue, even if we don’t agree with that critique, we respect the new contribution to literature, and seek to engage collegially with that person.  We promote true, rigorous exchanges with colleagues, like the one I recently enjoyed with Marko Milanovic and others in the comments to my cross-posted piece over at EJIL:Talk.  In my view, the nonproliferation epistemic community, particularly in the US, continues by contrast to be cliquish, incestuous, willfully insulated, and self-referential, to its detriment.

I don’t mean this to be a particular jab at Mark.  As I’ve said before, I think that Mark’s work overall is extremely valuable. He’s one of the most knowledgeable and plugged-in people in nonproliferation studies. I have disagreed with him on some discrete points in the past, but I find myself in almost complete agreement with him in his assessment in this new piece.  In it, he considers what the role of the IAEA will be in the implementation of the new Iran/P5+1 deal, and whether the IAEA has the legal authority and resources to perform this role.

I agree with Mark that I don’t see any serious legal problems posed by the role that the deal text assumes/implies will be played by the IAEA in implementing its terms. Mark goes through the issues in detail, and I concur in his analysis.  Mark insightfully quotes Article III(A)(5) of the IAEA Statute, which provides that:

The Agency is authorized… to establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the Agency or at its request or under its supervision or control are not used in such a way as to further any military purpose; and to apply safeguards, at the request of the parties, to any bilateral or multilateral arrangement, or at the request of a State, to any of that State’s activities in the field of atomic energy. (emphasis added)

I would only add to Mark’s analysis that I see both the November 11 Joint Statement between the IAEA and Iran, and the November 24 Joint Plan of Action – both of which are informal and legally nonbinding – as essentially amending Iran’s subsidiary arrangements with the IAEA; or in the case of the November 24 JPA, at least signalling Iran’s willingness to amend them (as Mark correctly points out, the IAEA was not a party to the November 24 JPA). As I’ve stated previously, subsidiary arrangements between the IAEA and safeguarded NNWS are best understood to be legally nonbinding, and simply to stipulate agreed procedures for implementation of the safeguards agreement between the two parties. So, on points on which the new agreements diverge from or add to Iran’s existing subsidiary arrangements with the IAEA, I think it’s best to understand that these are in effect amendments to those subsidiary arrangements – legally nonbinding but still important agreements on modes of implementation of Iran’s safeguards agreement with the IAEA.

After correctly observing that neither of the new agreements specifically reference the IAEA’s allegations of possible military dimensions (PMD) of Iran’s nuclear program, Mark concludes with this statement:

Iran has not provided the IAEA answers to any key PMD-related questions since 2009. It is unlikely that all of these questions will be answered during the next six months. How much information the Iran gives to the IAEA will no doubt be subject to negotiation during this period along the lines of what the IAEA and Iran agreed upon on November 11 in Tehran. At the end of a year, assuming that six months will not suffice to reach a comprehensive settlement of the Iran conundrum, perhaps the biggest challenge will then appear: If we assume that Iran implements all other conditions of the Joint Plan of Action, save divulging what may be compromising details about its previous nuclear activities, how much about Iran’s most sensitive nuclear past must the IAEA know for the six powers to make a deal with Iran looking into the future?

I am glad to see commentators like Mark implicitly recognizing that the IAEA’s misapplied obsession with Iran’s past alleged research activities, is very likely to pose an unnecessary stumbling block to achieving a comprehensive accord between Iran and the West on Iran’s nuclear program.  I have criticized this element of the IAEA’s approach toward Iran’s case previously here and here.  I was glad to see that the PMD issue was not specifically referenced in either of the new agreements, and I hope that it will be essentially marginalized as an issue in further negotiations towards a comprehensive accord. I think that this will be critical for the success of such negotiations, and that a decision by the West and the IAEA to force the issue could potentially derail the course of what is the best opportunity for a realistic resolution to the dispute over Iran’s nuclear program in a decade.