I’ve just gotten around to reading Jeffrey Lewis’ most recent FP piece on Japan and the periodic worries about Japan’s potential interest in, and capability to build, a nuclear weapons arsenal of its own.
I don’t have any particular problem with his analysis in the piece. I suspect he’s right in his conclusion that Japan will not decide to build their own nuclear weapons arsenal anytime soon, for the cultural and political reasons on which he mostly relies. He observes that most of the pro-NW rhetoric in Japan is politically marginal, that public sentiment in Japan is not in favor of nuclear weaponization, given particularly Japan’s terrible history as a victim of nuclear weapons use. And he gives Japan the benefit of the doubt that if they ever do decide to build nuclear weapons, they’ll do so in an open and transparent way. (Just like they did at Pearl Harbor.)
I just wanted to comment quickly on how different this holistic and circumspect analysis is from Lewis’ own analysis, and from that of many of his buddies in the US nonproliferation “expert” establishment (e.g. David Albright), on the potential for other countries to decide to construct their own nuclear weapons arsenals, and in particular Iran. See, for example, Lewis’ other recent FP piece on why we shouldn’t focus on “breakout time” on the basis of known centrifuge capability in Iran, as a meaningful indication of whether and when Iran might “go nuclear.” With regard to Iran’s potential future decision to build a nuclear weapons arsenal Lewis says:
What Khamenei is more likely to do, if he decides that nuclear weapons are no longer un-Islamic, is to order the Islamic Revolutionary Guard Corps to build a covert facility with technology from the civil program. You know, like Iran did at Natanz before 2002, and near Qom before 2010. A covert facility would provide Iran with a significant and steady supply of highly enriched uranium. With a little luck for the Iranians, this approach would present the United States and its partners with a fait accompli — one where we don’t know how much highly enriched uranium they have or where it’s made. That’s what the North Koreans are doing now, having wised up about the limited value of a plutonium production infrastructure housed in very large reactors and a reprocessing building that are easily identified and targeted.
Let me put this simply: Even if the Iranians build a bomb, they are likely to pretend for a prolonged time that they haven’t. Imposing limits on the number, capability, or operation of Iran’s centrifuges is a fool’s errand. It is far more important to win concessions on verification and access to Iran’s nuclear program.
Do you see a difference in tone and assumptions here? No holistic analysis of Iran’s history as a victim of WMD use itself, or of its relations with the West and its neighbors, and why it did not disclose the Natanz and Qom facilities. No consideration of internal Iranian politics in a circumspect way. No thoughtful analysis of the international relations calculus that Iran will likely rationally make.
The analysis is superficial and suspicious. The assumption is that Iran wants nuclear weapons, and will likely be devious in obtaining them.
This double standard of analysis and assumption just really stood out to me in this instance. But it’s a thread running through most of the rhetoric concerning Iran’s nuclear program in Washington DC, and through the writings of the US nonproliferation expert community. It’s so ingrained by now, I’m not sure they even see it anymore.
I was pleased to see this NYT article by David Sanger, which seems to indicate that a pragmatic and prudent approach to the PMD issue is prevailing in the negotiations between Iran and the P5+1/IAEA on Iran’s nuclear program. Quoting from the piece:
American negotiators seem to be steering away from forcing a full historical accounting from the Iranians before any accord is signed, arguing that excavating the past is less important than assuring Iran does not have the raw material to make a weapon. And the head of the International Atomic Energy Agency, Yukiya Amano, said in an interview last week that no one should expect a complete historical accounting.
“It is not possible to find out everything,” said Mr. Amano, a former Japanese diplomat who is trying, as his predecessor did, to work methodically through a list of a dozen areas that he calls “possible military dimensions” of the Iranian program.
As I’ve written before, this is a welcome development, and the negotiators from the West should be complimented for it (never thought you’d hear me say that, did you?). The basic philosophy underlying it, with which I very much agree, is that what is most important now is to come to an agreement among the parties about the present and future, in order to reduce tensions and begin the process of normalizing relations between Iran and the West, both politically and economically. And that stressing investigation into past possible military dimensions of Iran’s nuclear work will only make such a comprehensive agreement impossible. A very practical position that correctly apportions emphasis, in my view.
There are many, including notably David Albright, who have insisted, and continue to insist, that a full reckoning of Iran’s possible weaponization R&D in the past must precede any comprehensive agreement. This is entirely impractical, as well as unnecessary, and seems calculated to keep a diplomatic accord from ever happening. I’m pleased that P5+1 negotiators have not listened to such voices on this issue.
Last week, our friend Robert Kelley, along with Brian Cloughley, published a report for IHS Janes in which they reviewed and analyzed information about a possible new uranium hexafluoride plant at the Indian Rare Metals Plant (IRMP) near Mysore, India.
Toward the end of the report (which is damned difficult to locate in full text online, by the way, and is also paywall protected) the authors addressed the relevance to this discovery of India’s Additional Protocol with the IAEA:
The divergence between Mysore and the usual level of publicly available information on India’s nuclear programme may have its roots in two international agreements. The first is between India and the IAEA, the second between India and the United States. . .
Neither India, Pakistan, nor Israel have signed the NPT, nor agreed to the 1972-era voluntary agreements. India signed a version of the Additional Protocol in 2009, but never brought it into force. This Additional Protocol does not follow the Model Protocol that other non-nuclear weapons states sign and has no provisions for site access.
In 2008, India agreed to another set of constraints under a special agreement brokered by the US; the 123 Agreement, which governs nuclear co-operation between the US and India. This reaffirms that India is to declare its civil nuclear facilities but not necessarily its military facilities. This agreement allows both parties to enrich uranium up to 20%, but does not explicitly prevent India enriching uranium to higher levels to obtain HEU.
This seems at odds with the wider US nonproliferation agenda, which has aggressively sought to prohibit higher enrichments and repatriate any HEU to the country of origin. . .
On India’s IAEA agreements, in diplomatic cables released by Wikileaks in 2011, the US mission to international organisations in Vienna expressed concern that “the [Indian] Additional Protocol does not go as far as even Russia’s or China’s”, which are already exceptionally weak. The US Congress’s stipulation that the 123 Agreement must be contingent on India completing an “Additional Protocol” is subverted because it is not a “Model Additional Protocol”, and is a very weak one. Moreover, it has not yet been ratified, so is not even officially in force. . .
Notably, the Mysore enrichment plant is not a declared facility for either set of agreements. This is perhaps why India keeps its enrichment plant plans so secret. It only needs to declare civilian facilities, and by not declaring Mysore as a nuclear facility at all, New Delhi is making a tacit admission that it may have a military purpose, such as enriching uranium for nuclear submarine reactors or second stages in thermonuclear bombs.
Despite apparently going against the spirit of the 123 Agreement, India is still formally in compliance with its international commitments, and Washington can claim ignorance of any suspected enrichment in excess of 20%. The secrecy of Mysore is therefore driven by a need to not bring attention to breaking the spirit of the 123 Agreement, and furthermore it exploits the old IAEA agreements that limit powers of inspection.
This is pretty explosive stuff, if you’ll pardon the pun. From the announcement of the US-India nuclear partnership in 2005, through the negotiation of the 123 agreement in 2008, and in that same year as the issue of a waiver for the partnership was before the Nuclear Suppliers Group, India promised over and over again to sign and ratify an Additional Protocol with the IAEA.
It turns out that until this week, they had not followed through on that promise, and it further appears that the Kelley and Cloughley report, which was widely reported in the media, had something to do with scaring them into finally doing it – making the connection as it did to the US 123 and possible endangerment of US-India nuclear trade.
But recall the February 27, 2009 US diplomatic cable released by Wikileaks, which Kelley and Cloughley referenced above. You can see the cable here, and here is a longer excerpt from it:
The IAEA has added to the Board agenda for next week an Additional Protocol (AP) for India. The document was circulated for Member State consideration mid-day Thursday, 26 February. The draft text basically contains an obligation to provide limited reporting on exports to non nuclear weapons states (NNWS). It does not even go as far as the AP’s for Russia and China, the weakest among NWS, and is viewed in the Safeguards Department and the Office of the Legal Advisor as setting a bad precedent for not only Pakistan, but Brazil.
So it’s really questionable whether India’s new AP – now that it actually is in force as a legal source – is really of any marginal advantage to the safeguards regime between India and the IAEA. A friend has referred to the new India AP as a “Mickey Mouse” AP, that really should not be considered to constitute a proper Additional Protocol, on par with those signed and ratified by NPT NNWS.
I have obtained a copy of India’s new Additional Protocol agreement, and the IAEA BOG discussion approving it. I will insert links to both documents below. You can then compare the India AP to the Model Additional Protocol document (INFCIRC/540) that all NPT NNWS are encouraged to sign by the IAEA in its entirety. You can see the Model AP here.
It’s taken me a while to get around to addressing this topic. I was out of town for a couple of weeks, and in that time I’ve talked to a number of people about the subject to try and understand it as best I can.
I want to start out by recognizing that I’m still not 100% sure that I understand everything here, so I’m going to style this post as a first foray into the issue, and invite people to comment if they can clarify things. This includes some of the involved technical issues that I frankly don’t have the technical competency to understand.
But as regards Japan’s safeguards obligations with the IAEA, this is what I think the situation is. The amount of plutonium in question apparently was declared to the IAEA in the general terms of, and in a manner satisfying, Japan’s obligations under its CSA and AP with the IAEA.
The failure to report has to do only with the INFCIRC/549 regime, and its reporting guidelines. The INFCIRC/549 regime is an additional, voluntary regime adopted among the five declared NW states plus Belgium, Japan, Switzerland, and Germany, and communicated to the IAEA, for the purpose of increasing the level of detail with which self-reports are made with regard to stocks of civil plutonium.
Here’s how the IPFM blog described it:
The declarations, that draw on the annual Japan Atomic Energy Commission reports “The Current Situation of Plutonium Management in Japan” reported that Japan had 4.5 tonnes of plutonium in unirradiated MOX fuel. According to the Current Situation report, this number included 959 kg of fresh MOX fuel at power plants. This number, however, did not take into account the 640 kg of fresh MOX fuel that was loaded in Genkai #3 reactor on March 9-12, 2011. Since the reactor never went operational, the fuel was still unirradiated, but was not accounted for in any of the categories of the Current Situation report (or INFCIRC/549). It was removed from the reactor in March 2013 and may be again reported in Japan’s 2013 INFCIRC/549 declaration.
The discrepancy was reported by Masafumi Takubo, a member of the International Panel on Fissile Materials, who reported it at Kakujoho, a nuclear information website.
The conclusion that the under-reporting was only with regard to the voluntary INFCIRC/549 regime, and not with regard to Japan’s core safeguards obligations under its CSA and AP, is supported by this statement from IAEA Spokesman Gill Tudor:
The IAEA confirms that Japan has submitted to the IAEA all safeguards-related information under its safeguards agreement. Accordingly, all nuclear materials in all nuclear facilities in Japan are under IAEA safeguards, including material at the Genkai NPP. The IAEA also confirms that there has been no diversion of the nuclear materials.
The submission of plutonium stock reports to the IAEA is undertaken based on a voluntary arrangement among countries concerned (see below links). The IAEA cannot comment on what should be reported because it is up to those countries to decide.
The links to the “Guidelines for the Management of Plutonium” (including reporting format) are:
The links to the recent communications from Japan to the IAEA are:
So again, if the question is did Japan violate its safeguards obligations through failure to report this 645kg of plutonium to the IAEA, I think the answer has to be no, because Japan did apparently report this material in the manner required by its CSA and AP. There was simply an alleged underreporting of the material per the stipulations of the INFCIRC/549 regime, which is not itself the source of a legal obligation, as far as I can tell.
Concluding that Japan did not violate its legal obligations in this matter does not, of course, mean that there was nothing that happened here that shouldn’t have happened. The INFCIRC/549 regime is an important part of the overall IAEA system for transparency regarding plutonium.
I think a number of points of critique of both the Japan and the IAEA system can be made arising from this case, and commenters are certainly welcome to do so.
I know that one of the questions percolating out there with regard to this case is, inasmuch as Japan is one of the countries regarding which the IAEA has adopted a “broader conclusion” – basically the IAEA’s highest blessing of safeguards compliance – what sorts of deviations from safeguards best practices would or should merit a rolling back of the broader conclusion? Such a demotion from a broader conclusion has never happened before, and it’s unclear under what conditions it would happen.
I would add that since the broader conclusion procedure is completely an invention of the IAEA, and finds no textual support in either the CSA or the AP, there are therefore no legal criteria to use, either for bestowal of the broader conclusion blessing, or for its removal. As with so much of IAEA practice, the Agency’s procedures and modus operandi have become so far removed from what is actually in the Agency’s foundational legal sources, they are, to use a technical phrase, really just making this shit up as they go.
Anyway, I’ll stop there and open up for comments.
I’m very pleased to be hosting another guest post by friend of ACL Dr. Yousaf Butt. We often turn to Yousaf to help us understand the technical/scientific questions which are involved in debates concerning Iran’s nuclear program in particular. Although the legal debates about Iran are not taking place in an international court – at least not yet – the veracity of the scientific evidence espoused by all sides to support their legal arguments is nevertheless an extremely important matter, particularly in light of the debacle of the 2003 Iraq war having been based, at least in part, on bad technical and scientific analysis of intelligence information on similar questions.
What is the Quality of Scientific Evidence Against Iran?
By: Yousaf Butt
Dr. Yousaf Butt, a nuclear physicist, is director of the Emerging Technologies Program at the Cultural Intelligence Institute, a non-profit dedicated to promoting fact-based cultural awareness among individuals, institutions, and governments. The views expressed here are his own.
This week the P5+1 and Iranian officials meet again to try to narrow differences over a comprehensive nuclear deal, which is to last for an as-yet unknown duration. Reaching an agreement will be a challenging task because Iran and P5+1 seem to disagree – among other things – about the enrichment capacity Iran should be allowed during the (unknown) term of the comprehensive deal.
According to the Institute for Science and International Security (ISIS) limits on Iran’s enrichment capacity are important because they would lengthen the time needed for Iran to “breakout” and quickly enrich uranium to weapons-grade in any hypothetical race to a uranium-based device.
But Jeffrey Lewis of the Monterey Institute has suggested that such limits are meaningless, saying, “This is completely wrong. Breakout is precisely the wrong measure of whether a deal is successful,” because the Iranians – goes the argument – could use a covert facility to breakout if they wanted to do that.
Instead, intensive verification and intrusive inspections above and beyond what is codified in international law by the so-called “Additional Protocol” have been suggested to try to address this fear.
Amid this debate within the nonproliferation community, Gareth Porter last week poked a hornet’s nest by suggesting that key evidence against Iran was fabricated and distributed by Iran’s adversaries Israel and the MEK group.
This is not the first time someone has claimed that forged evidence was being used by the IAEA in its case against Iran: highly respected experts have warned about this before.
In a separate report last week, Mr. Porter assesses that David Albright, the founder and executive director of the Institute for Science and International Security (ISIS) in Washington, DC, a prominent commentator on nonproliferation and Iran’s nuclear program has embraced an alarmist line on the Iran issue – despite his knowledge that there were serious problems with the evidence on which it was based.
My intention here isn’t to evaluate the specific items of evidence presented in Mr. Porter’s reports but to weigh in with my own expert analysis – some of it done in collaboration with Dr. Ferenc Dalnoki-Veress of the Monterey Institute – of the quality of the evidence against Iran.
By way of context, Iran has never been formally accused of manufacturing nuclear weapons. The IAEA did determine that Iran was in “non-compliance” with its safeguards agreement in 2005. But this had to do with technical nuclear material accountancy matters — “non-compliance” does not mean Iran was making nuclear weapons. For example, South Korea and Egypt both violated their safeguards agreements in 2004 and 2005. But these U.S. allies were never even referred to the UN Security Council — let alone targeted for sanctions. Pierre Goldschmidt, a former deputy director of safeguards at the IAEA, has noted the “danger of setting bad precedents based on arbitrary criteria or judgments informed by political considerations” at the IAEA.
It is not always easy to obtain access to the actual evidence being used against Iran, but occasionally some is leaked to the press and is amenable to scientific scrutiny. Below, I list some of this evidence being used against Iran, as well some historical record of the group(s) making the allegations:
I’m very pleased to host a guest post by Dr. Daniel Rietiker. See his bio details following.
Some Thoughts on Article VI NPT and its Customary Nature
Dan Joyner was kind enough to allow me to react to some of the arguments which have been invoked in the interesting and useful debate on the pending applications introduced at the ICJ by the Marshall Islands in respect of Article VI NPT. These applications raise important and difficult questions of public international law and the stakes are obviously very high. One of the main issues will be whether Article VI NPT is of a customary nature. The answer to the question is crucial for the admissibility of the applications against India, Israel, Pakistan and the DPRK, which are all non-States Parties to the NPT and with respect to which the applicant invoked customary international law in the sense of Article 38 § 1 b) of the Statute of the ICJ. I am offering hereby my rather intuitional reactions which would necessitate further deepening:
First of all, it is appropriate to reiterate the exact scope of the duty imposed on States deriving from the – presumed – customary rule and to define the nature of the obligation at stake. I suggest that the starting point for this assessment must be the text itself of Article VI NPT:
“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective international control.”
From the outset, it transpires from this clause that the duty of the States, nuclear weapon States (NWS) as well as non-nuclear weapon States (NNWS), is the obligation to negotiate in good faith with a view to the effective realization of the three goals mentioned in Article VI. Narrowly construed, it is limited to a mere obligation of conduct, more generously interpreted, it entails an obligation to reach actual agreement. This latter approach was adopted by the ICJ in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (para. 99). However, such agreement has unfortunately not been reached yet.
From my point of view, and contrary to what has been suggested by previous comments, it does in principle not matter, for the crystallization of a customary norm in the sense of Article VI NPT, whether the NWS have actually got rid of all their nuclear weapons or not, but rather whether the States Parties, NWS and NNWS, agree that their duty to negotiate in good faith in view of a world without nuclear weapons still exists. This assessment will be the difficult task of the Court. From my point of view, there is clear evidence that, in spite of the rather clouded record of disarmament performance, the ultimate objective of general and complete disarmament, including nuclear disarmament, has never been given up. I have exposed the reasons in favor of this affirmation more in detail in an upcoming article (“The meaning of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons: Analysis in the light of treaty interpretation according to the VCLT”, in: Black-Branch/Fleck (eds), Nuclear Non-Proliferation in International Law, Vol. I, TMCC Asser Press, July 2014). A couple of elements shall just be mentioned here: The most recent multilateral treaties dealing with nuclear weapons, in particular the CTBT, ratified by over 160 States including France, the UK and Russia, all NWS, expressly confirm the objective of general and complete disarmament in their preambles (para. 4 of the preamble of the CTBT). Moreover, preambular paragraph 2 of the 2006 Semipalatinsk Treaty on a Nuclear-Weapon-Free-Zone in Central Asia contains the same commitment. From my point of view, it is significant in this regard that only some weeks ago, on 6 May 2014, all the five NWS as defined by the NPT, have signed the Protocol to the Semipalatinsk Treaty, through which they accept the nuclear-weapon-free status of this region. The second preambular paragraph of this Protocol could hardly be more explicit: “The Parties to this Protocol…convinced of the need to take all steps in achieving the ultimate goal of a world entirely free of nuclear weapons and that all States are obliged to contribute to that end…”
Moreover, the message delivered in Prague in spring 2009 by Barack Obama, the Head of State of another nuclear power, was very clear, too. Furthermore, in a very recent Resolution, the UNGA affirmed the ultimate goal of general and complete disarmament by 169 to one vote (DPRK), with 14 abstentions (Resolution 68/51 of 5 December 2013, “United action towards the total elimination of nuclear weapons”).
In addition, let me briefly react to Marco Roscini, who suggests that the 1996 Advisory Opinion was clear insofar as the ICJ stated that the obligation under Article VI NPT only concerned the 182 States Parties (para. 100). First, I wonder whether it is appropriate to take this Advisory Opinion, which was delivered 18 years ago, as a starting point, especially since it did not deal, strictly speaking, with disarmament. Second, if we take this Opinion as the basis for our discussion, I would suggest a very different interpretation, recalling that, in the operative part, the ICJ, unanimously found that “[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” (2 F.) It seems to me that this operative paragraph, in which the Court did not at all refer to Article VI NPT, is a clear expression of the fact that also non-States Parties are bound by this duty.
This affirmation is furthermore confirmed by the Court’s statement according to which “virtually the whole of this [international] community moreover appears to have been involved when resolutions of the United Nations General Assembly concerning nuclear disarmament have repeatedly been unanimously adopted.” The Court continued by adding that “[i]ndeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all States.” (para. 100).
This paragraph deserves our attention insofar as it suggests that, through the adoption of almost unanimous UNGA resolutions, the international community has reiterated, throughout the years, the goal of general and complete disarmament (see, for instance, Resolution 68/51 of 5 December 2013, cited above). From my point of view, these resolutions are very important tools to establish the opinion juris, the legal conviction of the States that the main goal, a world without nuclear weapons, still exists today. Indeed, in the same opinion, the ICJ observed that UNSC resolutions may sometimes have normative value and that they can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinion juris. (par. 70). I would not be surprised if the Court, in the current cases, would rely on such resolutions, including the voting results, in order to establish whether the duty deriving from Article VI NPT is of customary international law. This approach has the considerable advantage of relying on written documents (the adopted resolutions) and is, thus, easier and more precise than the analysis of unwritten, voluminous and often contradictory State practice. A resolution expresses the opinio juris of the international community and thus replaces, to a large extent, the troublesome analysis of the question whether State practice (which States exactly?) is coherent, constant and uniform enough (G. Abi-Saab, in his general course of international law at the Hague Academy of International Law, 1987, refers in this respect to “wise” custom, compared to the traditional, “wild” custom). This is even more important considering the nature of the duty under Article VI, which is a positive obligation to negotiate in good faith with a view of achieving the goals aimed at. In this kind of situation, the question whether or not the States have fulfilled their duty is obviously more difficult to measure than in the case of a “negative obligation”, consisting, for instance, in the obligation not to transfer or acquire nuclear weapons etc.
A last set of observations concerns the question whose practice has to be taken into consideration for the establishment of a customary international rule? This aspect is closely linked to the question whether Article VI NPT binds also non-States Parties, dealt with above. Marco Roscini suggests that the “specially affected” States have to be represented, a principle that goes in fact back to the ICJ’s judgment in the 1969 North Sea Continental Shelf Case (para. 74). I agree with Dan that the situation it that case, where a group of certain States, namely those possessing a continental shelf (or at least one whose delimitation poses problems), is hardly comparably with the duties stemming from Article VI NPT, a virtually universal treaty whose ultimate goal is general and complete disarmament, including nuclear disarmament. In my humble opinion, it would also be too simplistic to define the NWS as “specially affected” States; on the contrary, it could be argued that the NNWS have a special interest in nuclear disarmament (the French version of the judgment in the North Sea Continental Shelf case is possibly more precise, using “Etats particulièrement intéressés).
Moreover, it derives from the travaux préparatoires to the VCLT (YBILC 1957 II 53 § 126) as well as from the ILC’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts that disarmament obligations are generally considered to be “interdependent” obligations. Generally speaking, an essential breach of such an obligation would confer to all the other States Parties, including the “specially affected” ones but not exclusively, the right to invoke the wrongful act and request its reparation. By the same token, they are considered to be of an ergo omnes partes nature (see, in particular, Article 42 b) ii), and the ILC’s Commentary to the Articles on State Responsibility, p. 296).
To sum up, I suggest that, before discussing the question whether Article VI NPT is of customary nature, it is necessary to define the precise duty imposed on States by a presumed customary rule flowing from this provision. Moreover, I am of the opinion that there are solid reasons to believe that even the NWS, including the few non-States Parties to the NPT, are still convinced that the ultimate goal of the NPT and other arms control instruments is general and complete disarmament, including the elimination of all nuclear weapons. As a consequence, the duty deriving from Article VI NPT, thanks to its customary nature, would also apply to those respondent States in the pending applications before the ICJ that have not ratified the NPT. The characteristic feature of customary international law is that, contrary to treaties, it binds also States which have not expressly agreed to it or have not actively participated in its creation. As a result, if States such as India, Israel, Pakistan and the DPRK do not provide – the difficult – evidence that they are “persistent objectors” in the sense of the Anglo-Norwegian Fisheries case (the only case, as far as I know, where this concept has been admitted by the ICJ for universal customary law, the Asylum case having concerned regional custom), the ICJ could rely, in the current cases, on the customary norm stemming from Article VI NPT in respect of these States. Finally, it has been demonstrated above that, for the establishment of the opinio juris among States, the UNGA resolutions, including the voting results, constitute a particularly useful and inviting tool.
(Daniel Rietiker, PhD, Lecturer in international law, University of Lausanne, Swiss Member of the ILA’s International Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law and, currently, Visiting Fellow at the Human Rights Program of Harvard Law School)
I was just reading Mark Hibbs’ most recent piece over at Arms Control Wonk, on the shift in strategy over the PMD issue in negotiations between the P5+1/IAEA and Iran. His post is here: http://hibbs.armscontrolwonk.com/archive/2775/the-t-word-and-the-iran-negotiations
At one point, Hibbs makes this observation:
“Over the last half-year, I have asked officials from countries negotiating with Iran about the apparent shift on this issue. There are long answers (some of which are couched in legalese about what people think the IAEA’s legal mandate is and isn’t) but the exceedingly short answer is something like “That was then, and this is now,” because in 2014 Iran is at the table and in 2011 it wasn’t.”
I find it very gratifying to hear that government officials are seriously considering the arms control law issues that we discuss here at ACL. This specific issue of the legal authority of the IAEA is one that I’ve written alot about here, and it’s good to see that it is getting traction among those participating in the negotiations.
Sometimes you wonder if the things you write are making any difference in the world. But I’d like to think that this answer Hibbs has gotten to his question indicates that some of the things I’ve written here are being read by influential people, and that they are being influenced by those ideas. At least that’s what I’m going to take away from it!
I’m out of town on a family road trip at the moment, but I just quickly wanted to make sure everyone saw Gareth Porter’s new piece on David Albright. See it here:
It’s pissing off establishment types like Jeffrey Lewis, so you know it must be good.
After thinking carefully about their comments, I would like to offer some further thoughts.
1) I think that there is no obstacle in principle for a single provision within a treaty to be taken in isolation to establish whether it has become customary international law. The severability of treaty provisions finds support in the Vienna Convention on the Law of Treaties and has been upheld, for instance, in the ICJ Nicaragua Judgment, where the Court examined whether Articles 2(4) and 51 of the Charter reflected customary international law. We could even say that we should sometimes look at whether individual paragraphs within a provision are customary: again, in the Nicaragua case, the ICJ concluded that only the first sentence of Article 51 was a reflection of customary international law but not the second, ie the duty to report the armed reaction in self-defence to the Security Council. True, Article VI is linked to the other pillars of the NPT and is part of that Grand Bargain. But we shouldn’t forget that customary international law has a life of its own, independent from the treaty from which it may have originated: therefore, nothing prevents that only certain provisions of the NPT may have become customary but not others, even though, in the treaty where they were originally contained, they were intended as a package deal.
2) Like Jean-Pascal, I am not sure that the Chemical Weapons Convention is an appropriate analogy with the NPT. Indeed, as Jean-Pascal says, the difference between the NPT and the CWC is that the latter doesn’t distinguish between haves and have-nots. But an even more important difference is that virtually all states parties (and non-parties as well) agree that the use and possession of chemical weapons is unlawful: those states that are suspected of possessing or using them don’t count as contrary practice, as they don’t argue that such situations are lawful, rather they normally deny possession or use (Syria docet) or argue that the chemicals used don’t fall within the definition of the prohibited weapons, therefore confirming the prohibitory rule.
3) Dan is of course correct to say that Article VI formally addresses all NPT states parties. I still think, however, that this provision ‘specially’ affects only those states that possess nuclear weapons, as their position is necessarily different from that of non-nuclear weapon states. The fact that Article VI was what the NNWS asked to the NWS in return for their giving up the right to possess nuclear weapons (as Dan rightly states) demonstrates that this provision was specifically aimed at the NWS. In my view, it’s also impossible for the NNWS to engage in the relevant conduct, ie to give up weapons they don’t possess: they could engage if they acquired nuclear weapons, but that would confirm my argument, ie that the provision only specially affects states once they possess nuclear weapons.
4) I agree with Jean-Pascal that the customary nature of a provision or of a whole treaty doesn’t necessarily depend on how many states have ratified that treaty. Rather, it depends on the attitude of the states not parties in relation to that treaty. I also agree with Sergei Batsanov when he says in his comment to my initial post that we also have to take into account the practice of the several NNWS that accept nuclear weapons on their territory and of those that benefit of the nuclear deterrence umbrella. This practice by NNWS seems to imply an opinio that is difficult to reconcile with the customary nature of Article VI, ie it’s based on the acceptance that certain states may possess nuclear weapons.
To conclude. While I would in principle agree that Article VI, as a treaty provision, may have been breached by the NWS (although doubts about the normativity of this provision remain), I am still not sure that, at this stage, it reflects customary international law. The empirical study wisely advocated by Dan would have to provide evidence of consistent practice and opinio juris in that sense by a sufficiently representative majority of states, including the majority of the specially affected states (as per the North Sea Continental Shelf Judgment).
I recently received a copy of the 2013 IAEA SIR from a diplomat who provided it in the interests of promoting transparency regarding IAEA matters. The IAEA Board of Governors will be meeting today in Vienna to consider it. I will attach the entire report to a link at the end of this post, in the interest of transparency and to facilitate scrutiny of the report by independent analysts.
I’ll make a few preliminary points that have arisen from my read over it. And then I’ll welcome others’ comments and analysis.
1. The IAEA’s use of intelligence information provided by third-party-states for purposes of safeguards assessment.
Looking through this newest comprehensive report provided by the IAEA DG to the BOG on the subject of safeguards implementation and assessment, I do not see any meaningful discussion of how the IAEA receives, handles internally, authenticates, interrogates, and in general treats intelligence information that it receives from national intelligence agencies, and then uses in its assessment of safeguards compliance by safeguarded states. We know that the IAEA has used such intelligence in its safeguards assessments, including in the infamous November 2011 report by the IAEA chronicling allegations of PMD in Iran. See Mark Hibbs’ piece on this phenomenon here. But we have never seen, and in this newest report still do not see, any transparency on this issue, or explanation as to why the IAEA should be considered capable of handling and using this foreign-source intelligence in a credible manner.
As it has become clear that the IAEA has adopted this practice, in particular under DG Amano, I think that the Agency must explain transparently how it handles this information, including how such intelligence is authenticated, and what internal resources – along with their intelligence credentials – are involved in this process, before the Agency can credibly use such intelligence in safeguards assessments.
2. Safeguards Standards
Look at paragraphs 17-18 in the “Deriving conclusions” section. The Agency states here that “[T]he conclusion in the Safeguards Statement for a State with a comprehensive safeguards agreement alone relates only to the non-diversion of declared nuclear material from peaceful activities.” In the sometimes confusing array of legal standards the Agency says it uses when discussing safeguards assessment, they actually got this one right. This is the standard I have argued is correct, see, e.g., my post here.
But then, after reciting the correct standard, when they move on to discussing specific cases of states that do only have a CSA in place, the application is confused and erroneous. Look on ages 7-8. When reviewing Syria, the conclusion in paragraph 28 says this:
Based on the evaluation of information provided by Syria and other safeguards relevant information available to it, the Agency found no indication of the diversion of declared nuclear material from peaceful activities. For 2013, the Agency concluded for Syria that declared nuclear material remained in peaceful activities.
The same conclusion is drawn for a bunch of other similarly situated states in paragraph 29.
Now look at the conclusion for Iran in paragraph 25:
While the Agency continued throughout 2013 to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, the Agency was not in a position to provide credible assurance about the absence of undeclared nuclear material and activities in Iran and, therefore, was unable to conclude that all nuclear material in Iran was in peaceful activities.
See the difference? In Iran’s case they don’t just talk about declared fissile material, as they say themselves that they should back in paragraphs 17-18, but rather go on to talk about undeclared material and activities. This is what they have done now for a long time with Iran, and it was the precise issue that I criticized in previous posts. See here and here.
As I’ve explained in those posts, because Iran has only a CSA in effect, the IAEA has no authority to look beyond the declaration Iran has made pursuant to its CSA, and to assess Iran’s safeguards compliance using a standard that includes undeclared materials and activities.
The fact that the IAEA continues to do so regardless – and even contrary to its own avowed standard for assessment – I think demonstrates an intention to purposefully mislead both the BOG and international observers generally, about the status of Iran’s compliance with its safeguards obligations.
The DG drops a footnote (FN 18) to paragraph 25, in which a weak reference is made to the UN Security Council. But see my post here explaining why UNSC resolutions do not give any additional authority to the IAEA with regard to investigation or assessment of Iran’s safeguards compliance.
3. Agency Expenditures on the DPRK
Look at Table 7 (pages 49-53). It says there that the Agency spent EUR 1,441,000 on safeguards in the DPRK (page 50). However, on page 1, footnote 1, of the report, it says that the Agency did not implement safeguards in the DPRK. So, how was this 1.4 million euros spent?? A good question for member states to ask the DG’s office, I’d say.