Another Nail in the Coffin of the NPT

. . . is what this would be if it was actually adopted as policy by the NSG. I’m talking about a Dutch paper, sponsored by the US, UK and the Czech Republic, and submitted to the NSG meeting a couple of weeks ago, which proposed that the NSG take a more “open-minded approach aimed at cooperation with non-NSG members and promoting transparency of the NSG guidelines.” According to our favorite nuclear reporter Fredrik Dahl:

The discussion paper, seen by Reuters, outlined different types of “possible benefits the NSG could consider granting” a country that is adhering to its trade guidelines even though it is not in the secretive 48-nation grouping.

These could include sharing of information, access to NSG meetings and “facilitated export arrangements”, suggesting possible access to some nuclear trade with NSG countries, for example related to safety.

Currently, Israel is the only non-NSG country that fulfils the criteria regarding “adherence” to its guidelines although India and Pakistan have informally indicated that they also follow them, the Dutch Foreign Ministry document said.

So, under this new and improved approach, India, Pakistan and Israel, at least, would likely be promoted to receiving most if not all of the substantive benefits of membership in the NPT – including most importantly civilian nuclear trade with NSG supplier states. So we would go from one travesty – the India exemption already granted by the NSG in 2005 – to at least three and maybe more.

Again, these would be states that have not signed the NPT, but have clandestinely developed nuclear weapons stockpiles on their own. And under this proposal, they would be granted by NSG supplier states, nuclear trade access which the 157 NNWS parties to the NPT had to give up their legal privilege to possess nuclear weapons in order to secure.

Is this a game of how far can we push NPT NNWS before they will finally be convinced that the NPT grand bargain is dead, and that they are upholding their NPT obligations and tacitly consenting to a system of nuclear apartheid for nothing?

This isn’t how Mark Hibbs sees it. Mark seems to think this is a fine idea. In the article he’s quoted as follows:

Nuclear expert Mark Hibbs said such an acknowledgement by the NSG would be important for Israel. “It would be a recognition from a very important nuclear non-proliferation related body that Israel is a responsible nuclear state,” Hibbs, of the Carnegie Endowment think-tank, said.

That’s not the point, Mark. Responsible or not, you can’t undermine one part of the grand bargain of the NPT without expecting the other parts to fall down too.

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Talking disarmament for the Middle East

Last month Noha Tarek from Egypt commented on my reflection that neither members of the Non-Aligned Movement (NAM), with the exception of India, nor Arab League members have contributed financially or in kind to the elimination of Syria’s chemical weapons (CW). Syria participates in both groupings. She linked disarmament elements to a host of intra-regional and external politics and considered the relationship between Syria’s (read: Arab) CW and Israel’s nuclear arsenal.

It has taken me a while to reply. I could have easily registered my disagreement with several elements, but that does not open new perspectives for disarmament in the Middle East. Moreover, any ‘correctness’ of a viewpoint would depend entirely on whether Noha and I share a common taxonomy of issue interrelatedness, which we do not. On the contrary, I am absolutely convinced that the public discourse on disarmament in the region must change if any progress is to be made. By governments, to make negotiated solutions acceptable to their respective citizens. By the public to allow politicians and diplomats the space to back out of entrenched positions held for so many decades. Security, of course, remains paramount. However, it can be organised differently. Disarmament is after all the continuation of security policies by alternative means.

Can we move beyond the endless, anaemic exercises to describe every conceivable obstacle in their minutest detail? Is it possible for issue experts from international civil society to design from a purely technical viewpoint some first practical steps to offer substance to the disarmament debate ? This blog posting sketches a few possibilities. I am far from certain that I have the right answers (or even the right analysis for that matter), but the thoughts can hopefully foster a problem-solving discourse.

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Did Israel Steal Bomb-Grade Uranium from the United States?

Fascinating and troubling article over at the Bulletin of the Atomic Scientists, linking also to the authors’ original 2010 piece on this topic. A must read. Can you imagine if any other country on earth would have been alleged to have done this? It wouldn’t be a story that researchers are now having to dig up fifty years after the fact. It would be a well known, major incident in the history of nuclear nonproliferation. Indeed, as the authors say at the end of their 2010 piece:

Perhaps the most worrisome aspect of the NUMEC affair is that the government itself did not seem to want to find out what happened because it feared the answer. In his last book, Adventures in the Atomic Age, Seaborg defended this head-in-the-sand approach by questioning “what sense” it made to pursue the case. For our part, getting at the truth makes sense enough.


The Humanitarian Movement to Ban Nuclear Weapons

There has been a lot of effort expended lately on, and a lot of attention given to, a movement in international civil society to bring about a clearer understanding and appreciation of the humanitarian consequences of the potential use of nuclear weapons, as a vehicle for promoting nuclear disarmament. Here’s an article about Rebecca Johnson, someone whom I very much like and respect, talking about this idea.

I think this humanitarian movement is a fine idea, and that it could indeed bring welcome attention to the fact that many strategic policies of states for the use of nuclear weapons, i.e. those that contemplate the use of nuclear weapons as against civilian population centers or mixed military-civilian targets, contemplate actions that would be clearly unlawful under the law of armed conflict – violating the very strong principles of proportionality and discrimination under those sources of law.

The International Court of Justice in its 1996 advisory opinion essentially agreed on this point, when it said that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of international humanitarian law.”

The critique that I would offer of the humanitarian movement is the same critique that that ICJ eventually had to face, which is that humanitarian principles unfortunately cannot answer the whole question of the lawfulness of the use of nuclear weapons, and therefore can’t carry the full burden that many of its proponents would like it to carry, i.e. the legal requirement of global nuclear disarmament.

The problem the Court faced is that there were those among the nuclear weapon states who argued, it must be admitted correctly, that nuclear weapons are not one size fits all, and that in modern nuclear weapons doctrine various uses/purposes are contemplated for nuclear weapons during armed conflict, not all of which would run afoul of the principles of humanitarian law.

The standard hypothetical examples include an enemy submarine or warship, alone or in a convoy, far out to sea, and the potential use of a small-yield nuclear warhead against them. Similarly, an enemy military base or group of enemy soldiers, or a deeply buried enemy military facility, isolated in a desert, and the use of a nuclear tipped cruise missile or nuclear bunker-buster bomb against such a target. In both of these cases, it is likely that the use of nuclear weapons would not violate either the principle of proportionality or the principle of discrimination.

So again, what I’m saying is that the humanitarian movement is a fine thing and will, I would hope, influence military planners in shaping their considerations of the instances in which the use of nuclear weapons would be lawful during armed conflict. There should indeed never be another Hiroshima or Nagasaki. Under the modern law of armed conflict, these uses of nuclear weapons against civilian centers, even with some military advantage involved, would be clearly illegal.

Nevertheless I, as others, would still signal the cautionary note that the expectations of what the humanitarian movement can achieve on the nuclear disarmament front should not be overestimated. To put it simply, not all uses of nuclear weapons in armed conflict would be illegal. And as long as that is true, possession of nuclear weapons is still lawful for those states that have not undertaken positive legal obligations to the contrary, and furthermore in some contexts it is quite rational.

I was reading recently an article over at armscontrol.org by Gaukhar Mukhatzhanova that made the following observation about one of the leaders of the humanitarian movement:

Juan Gómez Robledo, Mexican undersecretary for multilateral affairs and human rights and chair of the Nayarit conference, stated in his summary that “the path to achiev[ing] a world without nuclear weapons” is to outlaw them and identified the 70th anniversary of the Hiroshima and Nagasaki bombings as the “appropriate milestone” for achieving this goal. The summary, presenting the view of the chair rather than an agreed outcome, seems to have overstated the readiness of most states to launch negotiations on an instrument banning nuclear weapons. It has served, however, to further aggravate concerns among states that had suspected that the goal of the humanitarian initiative is to start a process parallel to and in competition with the NPT. The third humanitarian-impact conference, scheduled to take place in Austria later this year, is expected to identify next steps for the initiative, which would help clarify implications for the 2015 NPT Review Conference and beyond.

This mention of a process “parallel to and in competition with the NPT” caught my eye. There has indeed been talk within the humanitarian movement – as there has been in other contexts for many years, but simply renewed now in this context – about pushing for a nuclear weapons ban treaty. One vein of this idea is to have a group of willing states – however many there are and almost certainly not including any state actually possessing nuclear weapons – sign on to such a treaty banning nuclear weapons possession, and essentially begin the process of global nuclear disarmament by then proselyting the treaty to nuclear weapons states, and hopefully, eventually, getting them to sign on too.

I think this is a fine idea, as far as it goes, and I have previously supported the idea of abandoning the NPT for some new replacement treaty regulating nuclear energy and nuclear weapons.

I suppose the advice I would give to those who are actively promoting this idea, is the very point that I made in the post I just linked to, which is that the only way a replacement treaty for the NPT will ever even remotely possibly achieve meaningful levels of membership, is if there is an accompanying coordinated withdrawal from membership in the NPT by those state signing the new treaty.

I do not think a new treaty establishing a universal prohibition on nuclear weapons, and the NPT, can exist in parallel within a state’s treaty membership profile.

If there is to be any chance of putting serious pressure on nuclear weapons possessing countries to accept that the NPT regime is indeed a thing of the past, and that the way forward is the new treaty establishing a universal ban, the NPT must be well and truly killed off through states withdrawing from it in a massive, coordinated, and very deliberate way as they sign onto the new treaty. Only then will the issue of the new regime be forced upon holdout nuclear weapons possessing states, and they will be put in the spotlight of explaining over and over why they will not join the new treaty.


Dr Ralf Trapp Joins ACL

I’m extremely pleased to announce that Dr. Ralf Trapp will be joining Arms Control Law as a regular contributor.  Dr. Trapp is one of the most eminent experts in the area of chemical and biological weapons and related international law. When I was writing the chapter on CBW law for my 2009 book, I relied heavily on the commentaries on the CWC that Dr. Trapp co-authored with Walter Krutzsch around the time the CWC was signed.  And now, Dr. Trapp has partnered with Dr. Krutzsch and Professor Eric Myjer to produce what I’m sure will be the authoritative legal commentary on the CWC, which will be published by OUP later this year. See the description of the new book here.   We are honored to have Dr. Trapp joining us, to give us his insights from time to time on CBW law. Here is a brief bio sketch:

Ralf Trapp is an independent consultant in the area of chemical and biological weapons arms control. A chemist and toxicologist by training, he worked with the GDR Academy of Sciences in the field of chemical toxicology between 1978 and 1990. From 1985 to 1987 he was a guest researcher at the Stockholm International Peace Research Institute (SIPRI), and from 1991 to 1992 at the Stiftung Wissenschaft und Politik Ebenhausen (Germany). He acted as technical adviser on chemical weapons disarmament to the GDR and subsequently the German delegations to the Geneva Conference on Disarmament. In 1993, he joined the Technical Secretariat of the OPCW where he worked in the areas of industry verification, verification policy and review, international cooperation, government relations and political affairs, and strategic planning. From 1998 to 2006, he was the secretary of the OPCW’s Scientific Advisory Board. After leaving the OPCW in 2006, he has provided consulting services to, amongst others, the OPCW, the European Commission, the United Nations, the ICRC and SIPRI. He has been involved in a number of international projects to provide science and technology advice to the CWC as well as the BWC, including studies organised by IUPAC and the Inter-Academy Panel on International Issues. Ralf Trapp is an external member of the Accademia delle Scienze dell’ Istituto di Bologna, a member of the International Institute for Strategic Studies in London, and member of the German Chemical Society as well as the American Chemical Society.


Taking stock of the chemical weapon ban

On 20–21 March the University of Rome III hosted a roundtable discussion to reflect on the current status of the prohibition on chemical weapons (CW) and the future challenges to that ban. Although convened by the Law Department, the speakers represented an eclectic group of experts with backgrounds in international law, political sciences, chemistry and biology, as well as practitioners. Notwithstanding, the meeting yielded considerable coherence in arguments, with questions, challenges and supplementary insights contributing further to an already rich multi-disciplinary texture.

The Chemical Weapons Convention (CWC) is at the heart of today’s prohibition on CW and their use in armed conflict. However, it does not stand in isolation. In fact, one could build a case that the norm against CW has a variable geometry. Approach it from the ban on chemical warfare, and the 1925 Geneva Protocol and its links to the International Criminal Court or the United Nations—in particular, the UN Secretary-General’s mechanism to investigate alleged use of chemical or biological weapons (CBW)—may take centre stage. Approach it from the angle of scientific and technological developments, and the 1972 Biological and Toxin Weapons Convention (BTWC) emerges as a possible point of entry. Approach it from the threats posed by terrorism and UN Security Council resolutions, including 1540 (2004), with their demands for national legislative action come into play. And so on. The various tools available today have created mutually reinforcing bridges. However, they are also the source of contradictions and large gaps remain between them. As the Rome roundtable brought out, it is not always clear how they can be reconciled or filled.

And then, of course, there are the politics. As we are about to commemorate the centenary of the outbreak of the First World War and are just eight days before the 99th anniversary of the chlorine attack near Ypres, Syria’s civil war shows that humanity still has not been fully able to relegate these weapons to history. And while political leaders of the great powers loudly invoke the inhumanity of poison weapon use, their actions today—just like those during the Abyssinian war in the 1930s, the Yemen war in the 1960s, the Iran–Iraq war of the 1980s—demonstrate once again that other geopolitical considerations, national security interests or domestic political agendas trump halting chemical warfare and holding the culprits accountable under international law. (True, some would argue that the 2003 invasion of Iraq served such a purpose, but alas, few are those who believe the proffered unbelievable unbelievables.)

Unsurprisingly therefore, Syria made up one of the main threads tying the various sessions together. But it was not the only one: other recent issues pose remarkably similar challenges to the future of the prohibition on CW. This blog posting summarises the presentations and offers a few personal reflections on points raised during the discussions.

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Hersh on Syria CW

Seymour Hersh has written a new piece exploring the facts and politics of the crisis last August/September concerning chemical weapon attacks within Syria, and President Obama’s consideration of military strikes to enforce his “red line.” The piece is published in the London Review of Books.  The piece makes for a fascinating read and, because it’s Hersh, will probably be quite influential.

According to Hersh’s narrative, the CW attack at Ghouta, which was the catalyst for the crisis, was perpetrated not by Syrian government forces, but by Syrian opposition forces allied with Turkey, and supplied with sarin gas munitions with the help of the Turkish government. This is a very provocative claim. To me, though, it makes a lot of sense. It never made sense to me that Assad would at that moment authorize the use of CW. It would have been a really stupid tactical decision, knowing as he must have that it would seriously ratchet up international pressure on him, and might lead to a potentially disastrous Western intervention – as compared to relatively low if any military advantage to be derived from the use of CW.  But then when the UN report came out it seemed to, at least on the basis of circumstantial evidence, support the conclusion that the CW shells had come from regime positions.

So now I’m not really sure what to believe. Seems like more work needs to be done to really get to the bottom of what happened. Although, with the passage of time and a war still going on, further clarity on the facts may be elusive.