This new publication of an edited collection of chapters was brought to my attention today. It’s entitled The Nuclear Nonproliferation Regime at a Crossroads, and it’s edited by Emily Landau and Azriel Bermant. I mostly wanted to draw attention to it because ACL’s own Jean-Pascal Zanders has a very good chapter in it on “Verifying the Prohibition on Chemical Weapons: The Relevance of OPCW Processes to the IAEA.”
I read over a number of the pieces quickly today. There are some very interesting and thought provoking pieces in Parts I & II of the collection.
Then there is a typically erroneous and frustrating piece by Olli Heinonen discussing IAEA safeguards in Part IV. A classic example of someone who is not a lawyer, but who appears to be supremely confident that he can interpret and apply international law in absolute and conclusory terms, basically because he worked around safeguards for years. Essentially the same thing as me going into a hospital and trying to treat patients because I’ve been around human bodies for years.
Anyway, then Jean-Pascal’s piece is of course very good and usefully instructive on lessons regarding verification that can be learned from the CWC regime.
Anyway, like with any edited collection, read the good stuff and skip over the bad stuff.
August, 100 years ago: the Hun from the east invaded little, neutral Belgium. In the opening weeks of the campaign the Hun was not a good boy. He willfully executed civilians, raped women, destroyed historical monuments and burned down university libraries—all war crimes that have been extensively documented. The worst barbarian acts, however, he committed against babies. He cut off their hands, so that the grownup man could never take up arms against the Hunnic master. Worse, he tossed them in the air and caught them on his bayonet. Alas, each investigated claim proved to be a myth. Meanwhile, many a Brit had enlisted to revenge the ‘Rape of Belgium’.
Similar stories appealing to public emotion circulated before the outbreak of World War I. And they have been fabricated since. Remember the Iraqi invasion of Kuwait in August 1990 and Nayirah’s testimony before the Congressional Human Rights Caucus? Nayirah, then 15 years old, told of Iraqi soldiers seizing incubators from Kuwaiti hospitals and leaving the babies to die on cold floors. Nayirah turned out to be the daughter of Kuwait’s ambassador to the US, and the accusations were reportedly coached by a US-based PR company contracted by the Kuwaiti government. However, the tale received a huge credibility boost from Amnesty International. The human rights watchdog claimed in a December 1991 report that its investigation team talked with several doctors and nurses who ‘gave details of the deaths of 300 babies removed from incubators in hospitals by Iraqi troops and left to die on cold floors’ (Douglas Walton, 1995, p. 772). (Amnesty international eventually retracted its report, unlike Human Rights Watch today, which released a dubious report on the Ghouta attacks and—in a modern version of the Vietnam-era ‘destroy the town to save it’—seized on the chemical weapon allegations to call for military strikes against Syria.)
Which brings us to current press reports of genetically malformed babies as a consequence of chemical warfare in Syria.
Deformed babies after the Ghouta attack
A few days ago, The Telegraph (London) and the Daily Star (Beirut) published testimonies and pictures of children born with genetic defects from the Ghouta district near Damascus. Other babies were reported to have been stillborn. Parents and attending physicians attributed the occurrences to the chemical attacks there last August. The UN investigative team confirmed the use of the nerve agent sarin in those attacks.
Many toxic chemicals are known mutagens. Some directly damage the DNA, resulting in replication errors. Some interfere with the replication process itself, and yet other ones can create mutagenic metabolites. Certain cancers may result from genotoxic properties of chemicals. As a matter of history, research into the physiological consequences of exposure to mustard agents after World War I and during World War II contributed to the development of chemotherapy against cancer. Chronic exposure to such genotoxicants may also lead to transgenerational genetic effects. Images of mutant fish and amphibians living in polluted water reservoirs come to mind. The severely malformed infants of Vietnamese parents and US veterans who were exposed to large doses of Agent Orange sprayed to defoliate forests during the Indochina war remain living proof of the transgenerational mutagenic and teratogenic consequences of certain chemical warfare agents. Research into the long-term health implications of the chemical bombing of the Kurdish town of Halabja in March 1988 has revealed similar transgenerational effects of mustard agent.
The main problem with the current claims of genetically malformed babies in the Ghouta area is that no indicators are available to conclude that the nerve agent sarin provokes cancer or leads to genetic defects.
Long-term research into the effects of sarin
As a consequence of the prevalence of illnesses related to the 1990–91 Gulf War among US military personnel, the United States conducted extensive investigations into the consequences of exposure to nerve agents. One report, published in 1996, failed to link the neurotoxicants to cancers or mutations (GB is the US military code for sarin):
Carcinogenicity, Mutagenicity, Teratogenicity
Organophosphates are not recognized as being carcinogens. No evidence was found to suggest that GB has carcinogenic potential. In a follow-up study of approximately 995 U.S. Army volunteers who participated in anticholinesterase experiments at the U.S. Army laboratories, Aberdeen Proving Ground, Edgewood, Maryland during 1955-1975, no consistent pattern of increased risk of cancer was found (NRC, 1985). The study was of relatively low statistical power, and was only able to identify large differences. The investigators concluded that, based on these findings, and the 10 lifetime studies of carcinogenicity of organophosphates sponsored by the National Cancer Institute, that anticholinesterase compounds did not induce malignancies among the Edgewood subjects.
Goldman, Klein, Kawakami and Rosenblatt (1987) concluded that GB is not mutagenic based on both in vivo and in vitro evaluations. Negative results were found in the Ames Salmonella bacterial gene mutation assay using 5 different strains exposed to a range of concentration of GB. Mouse lymphoma cell tests, Chinese hamster ovary cell tests, including sister chromatid exchange assays, and rat hepatocyte assays (for unscheduled DNA synthesis and damage) were all negative for mutagenic activity.
No evidence of teratogenicity of GB was found. Organophosphates are generally not considered to have significant reproductive effects; no studies to directly evaluate this characteristic in GB were found. In their study of the toxicity of chronic exposure of dogs to GB, Jacobsen, Christensen, DeArmon, and Oberst (1959) had the male animals bred after 25 weeks of daily moderate doses of GB; the offspring were normal.
In their one year, low-dose GB inhalation exposure study of a variety of animals, Weimer et al (1979) found no abnormalities in reproduction and fertility, fetal toxicity, or teratogenesis in Sprague-Dawley/Wistar rats. Testicular atrophy was noted in the Fischer rat, but the authors speculated other causes, since later experiments (using a different route of exposure) did not replicate the finding. In their report, the authors also cite work conducted by J. R. Denk (EB-TR-74087 Effects of GB on Mammalian Germ Cells and Reproductive Performance, February 1975) which came to the same negative conclusions.
Similarly, an Emergency Response Card, last reviewed by the Centers for Disease Control on 12 May 2011, notes:
EFFECTS OF CHRONIC OR REPEATED EXPOSURE: Limited data are available on chronic or repeated exposure to sarin. The available data however, suggest that sarin is not a human carcinogen, reproductive toxin, or developmental toxin. Limited data suggest that chronic or repeated exposure to sarin may result in a delayed postural sway and/or impaired psychomotor performance (neuropathy).
Attribution to chlorine and mustard agent exposure
The Daily Star also offered a bizarre linkage with chlorine, the agent of recent chemical warfare allegations in Syria:
While stressing that he was not a doctor, chemical weapons expert Hamish de Bretton-Gordon pointed to similar birth defects witnessed after the 1988 Halabja massacre, when the Iraqi government launched a chemical attack against the local Kurdish population.
De Bretton-Gordon, CEO of SecureBio, a UK-based Chemical Biological Radiological and Nuclear consultancy firm and former commander of the British military’s CBRN forces, said of the images of Joud: ‘Yes I think there is something in this and we saw similar from Halabja victims. I’m obviously not a doctor but chemical weapons, including chlorine, are known to be carcinogenic and mutanogenic.” (Sic)
The Center for Disease Control, the U.S. national public health institute, states that in the use of organophosphates such as sarin, ‘the possibility that birth defects could occur has neither been confirmed nor ruled out.’ Chlorine is not included in this nerve agent category, as it is a blister agent.
The Health Protection Agency (today Public Health England) published a toxicological overview of chlorine (2007) and excluded any of the above cited consequences from exposure:
No data are available on the mutagenicity of chlorine gas per se, although the mutagenicity of solutions of chlorine in water (hypochlorite and its salts) has been investigated. Sodium hypochlorite has been shown to have some mutagenic activity in vitro (both bacterial and mammalian cells) that may be due to the generation of reactive oxygen species. However, there is no evidence for activity in vivo. Negative results were obtained in bone marrow assays for clastogenicity (chromosome aberrations and micronuclei) in mice. The negative results reported in the carcinogenicity bioassays also support the view that hypochlorite does not have any significant mutagenic potential in vivo.
Negative results were obtained when chlorine (dissolved in drinking water) was investigated in a National Toxicology Program (NTP) carcinogenicity bioassay in rats and mice; concentrations of up to 275 ppm chlorine were used. Previously, the International Agency for Research on Cancer (IARC) had evaluated the carcinogenicity of hypochlorite salts and concluded that there was no data available from human studies and that the data from experimental studies in animals was inadequate. Therefore, hypochlorite salts were assigned to Group 3, i.e., compounds that are not classifiable as to their carcinogenicity in humans.
Reproductive and developmental toxicity
In general, animal studies have demonstrated no reproductive or teratogenic effects of chlorine. The effects of water chlorinated to a level of 150 mg L -1 were investigated in rats over 7 generations. No effects were observed on fertility, growth or survival.
Whether the interviewed expert actually expressed the words as recorded in the Daily Star is uncertain. The last sentence in the newspaper quote may indicate a mixup on the part of the journalist: ‘Chlorine is not included in this nerve agent category, as it is a blister agent.’ Chlorine, of course, is a choking agent, not a vesicant such as mustard gas.
As noted above, Saddam Hussein’s forces did employ mustard agent against Halabja and exposure to the agent can have genetic consequences for the survivors. However, nobody has ever alleged mustard gas use with respect to the chemical weapon attacks against Ghouta (or for that matter during the Syrian civil war). Therefore, speculating on the consequences of an agent not at issue is entirely irrelevant.
Substantiation of the claims rests on impressions and convictions of the affected families and some doctors working in the field making straightforward linkages between an observed phenomenon and the appearance of supposed consequences a while later. The articles offer no independently verified facts on the previous incidence of malformed children in the affected area or within the families.
The mothers in question are all reported to have been pregnant at the time of the gas attacks against Ghouta. Certain chemicals are known to affect the development of the foetus, the consumption of alcohol and smoking during pregnancy being prime examples. Sarin, however, does not appear to have such an impact, although, of course, one cannot exclude that the ways in which the body responds to the poisoning and the administered antidotes may impact on foetal growth.
Instead of exploring the deeper connections between cause and effect, The Telegraph chose to refer to the testimony by Dr Christine Gosden before the US Congress (which actually took place on 22 April 1998). She described how the inhabitants of Halabja were exposed to a cocktail of chemicals. With regard to the impact of mustard gas, she noted:
Long term effects. The most serious of the long term effects arise because mustard gas is carcinogenic and mutagenic. In the respiratory system there are increased risks of chronic lung disease, asthma, bronchitis. Permanent impairment of vision may occur and eye damage may be severe, leading to blindness. Skin lesions and burns may be severe with persistent changes and hypersensitivity to mechanical injury. Carcinogenic and mutagenic effects can result in cancers, congenital malformations and infertility. Long term effects (mutagenesis, carcinogenesis, eye, skin, lung, fertility, etc.) are dose and route dependent.
She does not claim similar consequences from exposure to nerve agents. Most importantly, the remainder of her testimony details the various short- and long-term symptoms observed in the victims over a 10-year period, but does not attribute any one of them to a specific warfare agent. In other words, invoking Gosden’s report as evidence in support of the claims regarding the consequences of the Ghouta attack is misleading, more so as the only agent that might strongly suggest carcinogenic or mutagenic consequences was not used in Syria.
The Telegraph article (unwittingly?) offers a very good alternative explanation for the genetic malformations (emphasis added):
‘We are receiving pregnant women in Arsal from many areas such as Qusair, Homs, Kalamoon, and [outer] Damascus, they come across the border for giving birth but in some cases the result is tragedy.’
‘We are receiving around 100 births a month in Arsal, about 12 per cent in the average out of them are stillborn,’ [Dr Kasem al-Zein] said. ‘The problems for newborn children are mostly occurring in women who were exposed to the chemical weapons, but also we have noticed that all women who lived in areas exposed to shelling by barrels and missiles are suffering fetal diseases.’
Arsal lies to the northeast of Baalbek in Lebanon. Since the reported cases attributed to chemical attacks are all from the last week or two, it is very difficult to determine how large a part of the monthly average they (can) represent. In contrast, the numbers do hint at possible roles of prolonged extreme stress, concussion, exposure to high levels of dust, malnourishment, and so on, in the incidence of miscarriages and malformed babies.
The story leaves a distinct impression of having seen it all before. The Telegraph came up with a defector, General Zaher al-Sakat, who had replaced sarin with Eau de Javel, a story that did not get much traction. Last month, it offered proof of chlorine use, which it claimed to be on a par with the methodologies applied by the Organisation for the Prohibition of Chemical Weapons. And interestingly enough, as the Christian Science Monitor wrote on 6 September 2002, ‘the first mention of babies being removed from incubators appeared in the Sept. 5  edition of the London Daily Telegraph’. That was on the eve of the decision to authorise military force to eject Iraq from Kuwait.
Seeking out plausible alternative explanations for observed phenomena and then eliminating them systematically goes a long way to establishing the credibility of an allegation. Are the current claims of mutagenic consequences of the chemical strikes in Ghouta part of a concerted ploy to again build a humanitarian case for Western military intervention against the regime of Bashar al-Assad? If so, it smacks of bayoneted Belgian babies all over again.
[Cross-posted from The Trench]
I’ve read two exceptionally good pieces today that I just wanted to highlight for readers. One is by Trita Parsi in Foreign Policy, entitled “No, Sanctions Didn’t Force Iran to Make a Deal.” In this piece I think Trita gives a tour de force rebuttal to what he accurately describes as the establishment myth coming out of the current negotiations between the P5+1 and Iran. Hossein Mousavian has made similar arguments, as I noted a few months ago.
The second is a piece in Arms Control Today by Hans M. Kristensen, entitled “Nuclear Weapons Modernization: A Threat to the NPT?” I’m actually kind of surprised that ACT published this piece. It seems a bit lefty and anti-USG for them. But I’m certainly glad they did. The piece gives a good overview of nuclear weapons modernization programs in the nuclear weapons possessing states, and links them directly (and correctly) to NPT Article VI. It’s exactly these kinds of arguments that the Marshall Islands are going to have to make in their cases before the International Court of Justice against the United Kingdom, India, and Pakistan.
I guess I just missed this when it came out back in December, but this is a good piece by Max Fisher in the Washington Post about a question that nonproliferation expert Joe Cirincione says in the piece comes up in every lecture that he gives on nonproliferation and the Middle East. Many others of us have had similar experience. And indeed it is omnipresent whenever any discussion about the proposed WMD Free Zone in the Middle East is had.
The piece offers some nice, concise history, along with useful quotes from good people like Cirincione, and the leading authority on Israel’s nuclear weapons program, Avner Cohen.
I’ve written before here on the topic of the double standard in Western, and particularly US, policy toward Israel’s nuclear weapons stockpile, and specifically in the context of the ME WMD FZ.
But one thing I think this WP article usefully does, and this is an observation made previously by Russ Wellen, is to point out that it’s really only natural that Israel in particular would be deeply suspicious of elements of Iran’s nuclear program that could be used to make nuclear weapons clandestinely, while the government lied through its teeth to the international community about their intentions, because this is exactly what Israel itself did. As Fisher writes in the WP article:
When U.S. intelligence did finally discover Israel’s nuclear facility, in 1960, Israeli leaders insisted that it was for peaceful purposes and that they were not interested in acquiring a nuclear weapon. Quite simply, they were lying, and for years resisted and stalled U.S.-backed nuclear inspectors sent to the facility. (This may help shed some light on why the United States and Israel are both so skeptical of Iran’s own reactor, potentially capable of yielding plutonium, under construction at Arak.) The work continued at Dimona.
Again, as I’ve written before, I can understand why Israel developed a nuclear weapons program, and why it wants to maintain its stockpile now. If I were in their shoes, I’d do the same thing. So I’m not morally judging Israel. But what gets me time and time again is how Israeli officials, and their patrons in the USG, wax moralistic in their condemnation of Iran for its nuclear weapons related experiments and capacity development, and for its refusal to cooperate with international inspectors to the extent they think it should. That is just pure, unadulterated hypocrisy, when viewed in the light of Israel’s own nuclear history, and the acceptance and diplomatic protection of Israel’s nuclear weapons program by the US.
I was just reading a new piece by Rebecca Johnson, whom I very much respect, reflecting on the recently concluded final NPT Preparatory Committee meeting before next year’s NPT Review Conference. Rebecca is probably the most knowledgeable person I know on NPT diplomacy issues. I think in this new piece she shares some very important and instructive insight about the relationship between nuclear disarmament and the NPT. It’s not a long piece and I encourage you to read it. I’ll excerpt here a few paragraphs from the end that I found to be particularly profound and insightful, about the situation in which pro-disarmament civil society finds itself, while viewing and trying to influence the dance of the elephants that is NPT diplomacy:
In view of the importance and attention given to the NPT by so many of our governments, civil society is stuck in a double bind. Having tried to make the regime work better and deliver progress on disarmament, we’re stuck with almost annual meetings and five-yearly review conferences that absorb considerable resources without achieving much in the real world. There’s a large ‘business-as-usual’ industry attached to the NPT in many of the nuclear-armed and alliance states, co-opting and trapping too many academics and NGOs in the non-proliferation narrative dominated by the P5. This is fuelled by funders that have downgraded peace and disarmament, and increasingly make the NPT and US-Russian arms reductions their priorities for grants. Ignoring the NPT, or carping from the sidelines, isn’t the answer either – since that just renders civil society invisible as far as most governments are concerned.
The run up to the 2015 NPT Review Conference provides us with unprecedented opportunities, as well as challenges. It may look like a game played by governments and NGOs, but the humanitarian stakes are deadly serious. Austria’s ambassador Alexander Kmentt chose this PrepCom to invite all governments and relevant civil society to participate in the Third International Conference on the Humanitarian Impacts of Nuclear Weapons, which will be held in Vienna on 8-9 December. The next year will see the NPT circus create a great deal of sound and fury, but probably not much else. If the Chair’s recommendations from this PrepCom are the most the P5 will accept, what will happen?
The many NGOs that have become partners in the International Campaign to Abolish Nuclear Weapons recognise that to carry the governments we need, we have to connect humanitarian initiatives for a globally applicable treaty to ban and eliminate nuclear weapons with the existing partially applicable NPT regime. As before, it will be a juggling act for civil society to be informed enough to exercise influence without becoming co-opted, irrelevant, or sunk under the NPT’s flawed premises and vested interests. This will be a major challenge in the coming year.
Governments are fond of calling the NPT the cornerstone of non-proliferation. Cornerstones need to be built on, or they end up as stumbling blocks half hidden in weeds. So let’s use the NPT cornerstone to construct more secure walls, and fix in place a higher, broader roof for the world without nuclear weapons that people all over the world want.
In 2015 we cannot let the NPT carry on being a stumbling block used by nuclear-armed states to break disarmament’s legs!
So this is going to sound a little international law nerdy, but I think my fellow PIL academics will understand when I say that I was quite excited when my friend Pierre-Emmanuel Dupont pointed out to me that my 2011 book had recently been cited to favorably in the International Law Commission Special Rapporteur’s second report on the topic of subsequent agreements and subsequent practice in relation to the interpretation of treaties (you can read about the ILC here). I’ll attach the ILC Report to a link below (you can’t just do a hyperlink to it, apparently). See footnote 195 and the surrounding text.
No, this is not a Nobel Peace Prize. But it’s still enough to make the day of an academic.
Basically, this is an argument that I have been making for some time, which is that NPT review conference final documents, which are adopted by consensus of the states parties of the NPT, are sources in which you can find “subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”, to quote from the Vienna Convention on the Law of Treaties, Article 31(3)(a). I have used such final document statements fairly extensively in my interpretation of the NPT.
My arguments to this effect have not been uncontroversial, however. Christopher Ford, for example, has opined in our exchanges that NPT Review Conference Final Documents do not contain such statements of subsequent agreement, relevant for treaty interpretation purposes. As he argued in an exchange with me at Carnegie a few years ago, specifically critiquing my 2011 book:
The closest Dan gets to a legal argument for filling out the thinness of Article VI with concrete disarmament content is to declare that the NWS are legally obliged to take every disarmament-related step subsequently called for by the parties at any NPT RevCon. Specifically, he says the NWS’ compliance should be judged according to the degree of their fulfillment of the “13 Steps” described by the 2000 meeting.
To be sure, he is a bit vague about this, admitting that these measures are merely “part of the ‘yardstick’” for assessing NPT compliance, and seeming to accept the point that “at least partial compliance” is possible irrespective of whether or not one has followed the “13 steps.” Nevertheless, Dan clearly means to follow today’s diplomatic conventional wisdom and invest the “steps” with legal import.
This is, to my eye, a weak argument. It’s a shame to have to mention it here, for I dealt with this in my 2007 essay and in his book Dan fails to address the argument I made there. He wants the “13 steps” to constitute a “subsequent agreement” on how to interpret NPT within the meaning of Article 31(3) of the Vienna Convention on the Law of Treaties, but he offers no evidence that the drafters of the “steps” or indeed of any RevCon document ever understood themselves to be preparing such a thing. Certainly the “steps” themselves feature no language suggesting they are intended to have this kind of (or any) legal import, and indeed in many cases they are phrased in ways that would make compliance well-nigh unassessable anyway. (Bolding and Underlining Added. DJ)
However, this new ILC report seems to adopt very much my way of looking at this subject, and specifically cites to my book to demonstrate the point. So I can’t help but feel a bit validated.
I was just reading Avner Cohen’s recent piece on the Marshall Islands case over at the BAS website. In it Cohen writes:
The lawsuit reflects a growing belief among international legal and policy experts (as well as some diplomats) that the time has come for the NPT to be treated—due to its near universal adherence—as part of customary international law by which all states must abide, regardless of whether or not they actually signed the treaty.
Based on this reasoning, the Marshall Islands asks the International Court of Justice to rule that all nine nuclear states are in material breach of their legal obligation to disarm under international law, regardless of their status under the NPT. Currently the international community does not consider the NPT to be part of international customary law; if it were, the treaty would have a legal status similar to that of the international bans on slavery or torture. Should the International Court of Justice make such a ruling, it could elevate the discourse on nuclear disarmament from vague declarations of intentions to stark statements of legally binding commitment.
Cohen is certainly right to identify the question of whether the NPT, or at least Article VI of the NPT, is part of customary international law, as a central question in the Marshall Islands (RMI) case. It is the argument on which the entirety of the RMI’s case against those of the nine potential respondents who are not parties to the NPT, rests. But I thought I would try to provide some clarity to Cohen’s discussion of this question.
The question of whether the NPT, in whole or in part, has entered into customary law is one that has been knocking around in international legal discourse for a long time. I’ve talked with colleagues at conferences about the subject for many years, though as far as I know there has not yet been a focused treatment published on this question. I know some people over the years have told me they were working on one, but I have yet to see it in print. If there is such a treatment out there, I would be happy to have attention drawn to it in the comments.
Generally speaking, broadly-subscribed-to treaties, such as the NPT, are fertile ground for potentially finding that a process sometimes referred to as parallel customary law creation has occurred. This simply means that, even if the principles codified in the treaty were not, prior to codification, a part of customary international law, the very fact of their codification, and even more importantly the subsequent implementation of these principles by states parties, under the (quite correct) impression that these principles are legally obligatory upon them, satisfies the two elements of state practice and opinio juris that together turn a principle into a rule of customary international law.
This phenomenon is quite common in the international legal system. Examples include principles of the 1977 Additional Protocols to the Geneva Conventions on the Law of Armed Conflict, principles of the 1969 Vienna Convention on the Law of Treaties, and principles of the 1982 UN Law of the Sea Convention. In each of these contexts, states who are not parties to the treaties themselves, have recognized that, while the treaty per se is not binding on them, some of the principles codified in the treaty have, through parallel state practice and opinio juris, become rules of customary international law which are binding on them through that separate source of international law.
These examples are also illustrative of another characteristic of parallel customary law, which is that customary law development parallel to a treaty is not an all-or-nothing proposition. In each of the examples cited above, it is only some of the principles codified in the treaty that are considered to have entered into the corpus of customary international law. Not necessarily all of them. This is why, for example, the ICRC’s study on customary law in the law of armed conflict is so important – it is a rigorous analysis of which of the principles codified in the Geneva Conventions and their Additional Protocols have entered into CIL. And that study found that the substance and definitions of the obligations as between the treaty and CIL differs significantly.
So let’s now come back to the NPT. In my 2009 book I wrote that the NPT had not, at least in toto, entered into customary international law, unlike the CWC and the BWC:
On a normative development level as well, the contract treaty nature of the NPT has not given the elements of customary law creation clear universal principles to attach to, in order to enable the creation of parallel custom, unlike in the cases of the Chemical Weapons Convention (CWC) and the Biological Weapons Convention (BWC), to be discussed in detail below. Such parallel customary law in the cases of these other multilateral nonproliferation treaties constitutes an important supplemental source of legal obligation through which even non-parties, and particularly secondary proliferators of WMD technologies, may be bound to the terms of the cornerstone international legal instruments.
I still think that this analysis is correct. However, there are some articles of the NPT that are worded in such a way as to comprise universal obligations upon all states parties to the treaty, notwithstanding they are a part of the treaty’s quid pro quo structure of obligations. The most important of these are Articles IV & VI of the treaty.
As I’ve already explained, there is no problem legally with having individual articles or provisions of a treaty pass into customary international law, even if the entirety of the treaty in which they are found does not. So the question I think becomes, is there sufficient evidence of state practice and opinio juris to support the conclusion that either or both Article IV or Article VI have become principles of customary international law?
Focusing on Article VI, as that is the operative provision in the Marshall Islands case, this basically becomes an empirical question. The tests for state practice and opinio juris are well expressed and defined in international legal sources, and what is needed is a focused study evaluating state practice, and inferences about the sense of legal obligation under which states have taken that action, in order to answer the question of whether the principles in Article VI have indeed been established as customary law. If they have been, then this hugely strengthens the RMI’s case against the four non-NPT parties in the cases.
As I said above, I have not personally conducted such an empirical study. I don’t know if anyone has. If they have, I would invite them to come forward and enlighten us!
But I will give my own sense, which is admittedly anecdotal and qualitative at this point, just from viewing the landscape of state practice and opinio juris on this question through statements made at NPT PrepComs and RevCons, etc. for some time now.
I would conclude that there are indeed a sufficient number of states who consider the obligation in Article VI of the NPT to be a binding legal obligation, and who have acted in conformity with that opinio juris, over a sufficient amount of time, with sufficient consistency, in order to establish the Article VI obligation as an obligation of customary international law, in addition to its codification in the NPT.
It must be remembered that perfect universal conformity with a rule, or recognition of the rule as binding, is not necessary for customary law to form. As the ICJ itself said in the 1986 Nicaragua case:
It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs….the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.
So the fact that there are among the NWS especially, states that do not view the Article VI obligation to in fact be a binding legal obligation, does not per se mean that it is not a binding obligation, nor that it has not entered into customary law. Looking to statements of the Non-Aligned Movement, which represents a supermajority of states, as well as to the 2010 NPT Review Conference Final Document, as I did in some detail in my 2011 book, I think there is ample evidence of opinio juris to support the conclusion that the Article VI obligation is a part of customary international law, even if the NPT in its entirety is not.
This is obviously going to be a highly contentious part of the RMI’s case, particularly against India and Pakistan, who as I wrote previously are two of the only three states (along with the UK) over whom the ICJ likely does have jurisdiction to proceed with this case.