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.