U.N. General Assembly Decides to Convene a Nuclear Weapons Ban Conference

I wanted to note what most of you already know, which is that last Thursday, the First Committee of the U.N. General Assembly, by a vote of 123 states in favor, 38 against and 16 abstaining,  adopted a resolution in which it decided “to convene in 2017 a United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination.” You can read the text of the adopted resolution here.

This is a very big deal, and kudos are due to those who have worked tirelessly on the humanitarian initiative, and who have patiently and methodically pulled diplomatic levers at the U.N. to get to this point.  I personally am in support of this initiative to conclude a nuclear weapons ban treaty, and I hope for its success.

It will be fascinating to see what happens when the conference convenes in March. I really don’t know what the state of play is with regard to a proposed draft for the treaty to be negotiated, or how the draft will eventually be structured. If anyone in the movement wants my advice on the topic, I’m certainly willing to give it. Please contact me directly.

Politically, this is an embarrassing development for the Obama administration, which has sought to pride itself on its nuclear disarmament track record. Having to come out in the past few weeks against this initiative was more than a little awkward for them. The same goes for Japan and their special role in past decades in pushing for nuclear disarmament. The fact that Japan ultimately voted against the General Assembly resolution to start this process of negotiating a nuclear ban treaty, cannot but undercut the government’s claim to a principled approach to nuclear disarmament.

I was recently talking with an influential member of the humanitarian initiative movement and we were discussing whether the conclusion of a nuclear weapons ban treaty should be accompanied by the collective withdrawal from the NPT of those states that decide to adopt the ban treaty. I argued that it should. This view is in harmony with things I’ve written before about collective withdrawal from the NPT, such as here.  My point in the particular context of the conclusion of a nuclear weapons ban treaty was that, again were such a treaty to be concluded among a sizable proportion of states, the best way to further solidify the norm it would be creating would be for the states parties to the ban treaty to also withdraw collectively from the NPT, thus marking the institution of a new normative standard, unmixed with the baser matter of the NPT.  I argued that if the states parties of the new ban treaty did not do so, the ban treaty would be more easily marginalized by the nuclear weapons states, who would continue to assert the NPT as the multilateral cornerstone treaty on nuclear weapons possession, proliferation and disarmament.

The person with whom I was talking disagreed, arguing that the NPT would still be useful to the disarmament movement even after the ban treaty was adopted, because of its established mechanisms for putting pressure on nuclear weapons states, such as the PrepCom/RevCon process.  I replied that I didn’t see that much in the way of meaningful pressure had been applied to the nuclear weapons states by virtue of the NPT’s implementation mechanisms for the past fifty years, and that making a clean break from the NPT and asserting the new ban treaty as the new and multilaterally supported standard had a better chance of applying real, meaningful diplomatic pressure on the nuclear weapons states, left as they would be to constitute a minority of states outside of the ban treaty.

All of this looks forward considerably in time to the as yet unrealized prospect of the conclusion of a nuclear weapons ban treaty. And there’s still time to discuss the relative merits of these ideas. But I think that the positive effects of a treaty banning nuclear weapons  will be maximized if it is asserted by its members not as an implementation of the NPT, but rather as its replacement.

The U.S.-Russian INF Treaty Dispute: Invocation of the Special Verification Commission Facility

There’s a very interesting new issue brief over at the Arms Control Association website. The title is “Next Steps on U.S.-Russian INF Treaty Dispute.”  It gives details on the background of the multifaceted dispute between the U.S. and Russia over the terms of the 1987 Intermediate-Range Nuclear Forces Treaty, and also reports some recent developments.

Particularly interesting is the report that the U.S. has called for a meeting of the “Special Verification Commission,” a facility provided for in Article XIII of the INF treaty. As Article XIII states:

The Parties agree that, if either Party so requests, they shall meet within the framework of the Special Verification Commission to:

(a) resolve questions relating to compliance with the obligations assumed; and

(b) agree upon such measures as may be necessary to improve the viability and effectiveness of this Treaty.

The procedures of the SVC are fleshed out in a MOU concluded by the U.S. and Russia in connection with the treaty. You can see the MOU text here.

I wasn’t aware of the INF’s SVC facility. At first glance it looks like a very interesting example of a purpose-built verification and dispute resolution mechanism within an arms control agreement. It will be intriguing to see what role its invocation might play in addressing and possibly resolving the compliance disputes concerning the INF treaty.

2015 IAEA Safeguards Implementation Report

Another thing I’ve been meaning to do for a while is to post the 2015 IAEA Safeguards Implementation Report, which I received from a party in Vienna in the interests of transparency. See the link to the 2015 SIR below.

SIRs make for very interesting reading about how the IAEA assesses the compliance of sates with their safeguards obligations.

With regard to Iran, it seems to me that the 2015 SIR is still making the mistakes of previous years’ SIRs. The way the IAEA has singled out Iran for the discriminatory application of compliance standards is summed up nicely by these two summary paragraphs on Page 1:

Safeguards activities were implemented for 52 States with comprehensive safeguards
agreements in force, but without additional protocols in force. For these States, the Secretariat found no indication of the diversion of declared nuclear material from peaceful nuclear activities. On this basis, the Secretariat concluded that, for these States, declared nuclear material remained in peaceful activities.

While the Secretariat concluded that, for 2015, declared nuclear material in Iran remained in peaceful activities, it was unable to conclude that all nuclear material in Iran was in peaceful activities.

I provide a full discussion of the IAEA’s erroneous application of compliance standards to Iran in Chapter 5 of my new book which you can find here on my SSRN page.

Hopefully we’ll start to see some changes in the language used in the SIR regarding Iran in the 2016 edition.

iaea-2015-sir

UNSCR 2310 and the CTBT: Some Thoughts

I’ve been meaning for a while now to comment briefly on the adoption by the Security Council of Resolution 2310 on September 23, 2016.  In this resolution the Council addresses the subject of nuclear weapons testing and the Comprehensive Test Ban Treaty. The CTBT was opened for ratification in 1996, and to date 166 states have ratified it.  However, the treaty has not come into force because the treaty text provides that entry into force will only occur when all of the states listed by name in Annex 2 of the treaty have ratified it.  Currently eight of those Annex 2 states – China, Egypt, India, Iran, Israel, North Korea, Pakistan, and the United States – have still not ratified the treaty.

In the lead up to the adoption of Resolution 2310 there was a lot of speculation that the resolution would be adopted under the Council’s Chapter VII powers, and that it would use legally mandatory language to establish a universal ban on nuclear weapons testing.  In the U.S., in particular, this prospect was met with considerable opposition in some quarters.  The argument was made that the Obama administration was trying to undermine the constitutional power of the U.S. Congress by essentially going over its head to the UN Security Council to establish an internationally legally binding rule prohibiting testing – this notwithstanding the Senate’s rejection of U.S. ratification of the CTBT as a treaty in 1999.

As it turned out, Resolution 2310 was not in fact adopted under Chapter VII and there is no legally mandatory language used in the resolution.  Thus the resolution does not create any new legally binding rule of international law. Apparently this is due to push back from Russia and China in the drafting of the language.

The resolution does inter alia mention the joint statement made by the five NPT nuclear weapons states on September 15, 2016, in which they recommitted themselves to their previously announced unilateral moratoria on nuclear weapons testing, and further recognized that “a nuclear-weapon test explosion or any other nuclear explosion would defeat the object and purpose of the CTBT.”

This language about the object and purpose of the CTBT was pretty clearly intended to reference Article 18 of the Vienna Convention on the Law of treaties. Article 18 provides in part that:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty;

This language in the NWS joint statement can be read to particularly address the situation of states which have signed the CTBT but not yet ratified it.  Among states in this position is the United States. As noted above, the U.S. did sign the CTBT in 1996, but when the treaty was presented to the U.S. Senate for its consent to ratification, the Senate in 1999 voted not to give that consent.  So the U.S. is in the position of having signed but not yet ratified the CTBT, because the Senate rejected the treaty.

An interesting legal question is whether the U.S. is currently in fact obligated under international law, pursuant to VCLT Article 18, not to act in a manner which would defeat the object and purpose of the treaty.  You might think the answer to this question is obvious in the affirmative – the Arms Control Association certainly seems to think so, as it expressed in this piece following the adoption of Resolution 2310.  But in fact the answer to that question is not at all simple or clear cut.

For starters, the U.S. is not a party to the Vienna Convention on the Law of Treaties. So it can’t be maintained that the U.S. is subject to this principle as a rule of treaty law. Then the question becomes whether the principles in VCLT Article 18 are also a part of customary international law. I honestly didn’t know the answer to this question, so I looked at academic commentary on the VCLT, and it appears far from clear that there is sufficient state practice and opinio juris to establish the Article 18 principles in customary law, independent of their codification in treaty law.  So that’s a significantly complicating aspect of the analysis.

Even if one could, arguendo, determine that the U.S. is subject to the principles in VCLT 18 as a matter of customary law, if you take those principles as they are iterated in the text of Article 18, there is still some considerable doubt as to whether the U.S. is currently legally obligated not to act in a way that defeats the object and purpose of the CTBT.

The issue here is that Article 18 provides that a signed but not ratified state does have such an obligation “until it shall have made its intention clear not to become a party to the treaty.” As I noted, President Clinton sent the CTBT to the Senate for its consent and the Senate in 1999 voted not to give its consent. Did this action manifest the intention of the United States not to become a party to the treaty? I think there’s a strong case to be made that it did.

Following the Senate’s rejection of the CTBT, the issue of the U.S. residual obligation, if any, pursuant to VCLT Article 18 has come up on a number of occasions, prompting contradictory statements from U.S. Secretaries of State.  For a discussion of these statements and their implications, I would refer readers to the below link for an analysis by Stephen Rademaker in testimony he gave to the Senate Foreign Relations Committee in September of this year.  In my 2011 book I was quite critical of Rademaker’s comments interpreting the NPT while he was in government.  But I actually think his analysis on pages 3-7 of this testimony of the international legal issues relative to U.S. obligation concerning the CTBT are pretty good.

On the whole, from a formalist perspective, I think it’s quite doubtful that the U.S. is in fact currently obligated as a matter of international law not to act in a manner which would defeat the object and purpose of the CTBT.  The Obama administration apparently has a different view, and wanted to express its view in the joint statement it issued along with the other NPT NWS. In that statement, the U.S. also recommitted to a unilateral moratorium on nuclear weapons testing.

In light of all this, the question of whether the U.S. is legally bound not to undermine the CTBT isn’t particularly material at the moment, as the U.S. under the current administration is politically committed not to do so. But the issue does come up once in a while, and it is useful to revisit the legal question.

rademaker-on-ctbt

My Reaction to the Dismissal of the Marshall Islands Cases by the ICJ

Well, as I’ve been predicting for some time now, the ICJ has today dismissed the Marshall Islands’ cases against the United Kingdom, India and Pakistan. These were the only states left in the dock from the RMI’s initial announcement of cases against all nine nuclear weapons possessing states.  Readers of this blog will know that I’ve been writing about these cases occasionally since their announcement in April 2014.

Pretty early on, I became concerned by the work I saw coming from the lawyers that were representing the RMI, both in the cases at the ICJ and also in the still enigmatic, and quickly dismissed, case against the U.S. in domestic federal court.

And particularly when, in March of 2016, we finally got a look at the written pleadings of both the RMI and the three remaining respondents in the ICJ cases for the jurisdictional phase of the proceedings, my concerns about the quality of the RMI’s legal team began to be borne out in earnest. You can read my thoughts on those written pleadings here and here.

So to be clear, what happened today is that the ICJ decided that in all three of the remaining cases – those against the U.K., India, and Pakistan – the court lacked jurisdiction to proceed to the merits of the case. In all three judgments the court found that the RMI had failed to establish that there was a legal dispute between the parties that gave rise to a case over which the court could exercise jurisdiction.  In none of the three judgments announced today did the court actually proceed to consider the merits of the cases, i.e. the court did not consider or pass any judgment about the NPT law questions raised by the RMI’s complaints, focusing on NPT Article VI. Because each of the cases was dismissed purely on jurisdictional grounds, these cases tell us nothing about the correct legal interpretation or application of NPT Article VI.

I’m still reading through the various separate opinions lodged by individual judges, both concurring with and dissenting to the court’s judgments in the three cases. But I would like to go ahead offer a few points of commentary on the these cases generally and on their ultimate disposition, which we now know.

1. First, these cases, as well as the other six that were dismissed even earlier in the process, should never have been brought to the ICJ on a contentious basis. The RMI’s legal team should have known better. They should have known from the beginning that six of the nine cases filed would never see the inside of a courtroom because of an undisputed lack of jurisdiction in the ICJ to hear them.  These cases included the ones against the U.S. and Russia, which are of course by far and away the countries that matter most when considering the issue of nuclear disarmament, and which are the best examples of parties to the NPT that have not acted in compliance with Article VI.  So from the very beginning, the RMI team must have known, or at least should have, that they were not going to have their “day in court” with the states against whom the RMI should have been most interested in bringing these cases.  This is particularly true of the U.S., whose March 1954 Bravo nuclear test at the Bikini Atoll was witnessed first hand by the country’s foreign minister, Tony de Brum – an experience which he has poignantly shared as a formative one in his desire to bring these cases.  I hope that the lawyers who ended up representing the RMI told him early on that there was zero chance of his country’s suit against the U.S. even proceeding to trial. One wonders if that was made sufficiently clear to him.

So going down the contentious route meant that six of the nine original cases were dead on arrival for clear and undisputed jurisdictional reasons, leaving as a meaningful possibility only the cases against the U.K., India, and Pakistan, all of which had accepted the compulsory jurisdiction of the ICJ.  Knowing this as they must have done, or at least should have done if they were adequately counseled by their lawyers, one wonders what the RMI thought the point was of lodging the six D.O.A. cases? It makes me wonder if perhaps their legal counsel wasn’t as forthcoming as they should have been about the likelihood of success of those cases.

With regard to the three remaining respondents, while the U.K. is a party to the NPT, India and Pakistan are not, so from the very beginning the RMI’s legal team knew or should have known that trying to establish that these countries were in violation of the principles contained in NPT Article VI would require an additional uphill battle to convince the court that those principles had also passed into customary law.  This is an argument that I happen to agree with, but that I know would take a good deal of convincing for the court. This is not to mention the various reservations which India and Pakistan both attached to their statement of accession to the ICJ’s compulsory jurisdiction – reservations that would take a very high level of professionalism and legal expertise to counter.  The same was true of the U.K. and its reservations to the ICJ’s jurisdiction.  These jurisdictional hurdles made the success of even these three remaining cases unlikely from the beginning. Again, I hope the RMI was made aware of this.

At the time the RMI’s cases were filed I was certainly not opposed to the idea of going back to the ICJ to get a judgment specifically about NPT Article VI and the compliance of the NPT NWS therewith particularly.  Far from it.  But from as far back as my first book in 2009, I have argued that such a case should be brought on the basis of the court’s advisory jurisdiction, presenting the court with a much more clearly justiciable question than the one which led to its infamous 1996 advisory opinion.  Were I to have been asked early on to advise the RMI, I would have advised them against going down the contentious jurisdiction route in these cases, and would have advised them rather to work within the U.N. General Assembly to fashion the right question on Article VI to send to the court for its advisory jurisdiction.  This would have removed all of the jurisdictional hurdles that ultimately were the doom of its contentious cases, and would have allowed the court to give its opinion on the merits of the case with regard to all of the nine nuclear weapons possessing states, including the U.S.

And just for the sake of full disclosure, I was never approached by the RMI or by their legal team for my advice or participation in the cases. I was completely blindsided by the announcement of the cases in April 2014.  I subsequently did, however, reach out to Phon van den Biessen who was acting as agent for the RMI, and offered to advise the RMI on a pro bono basis as the cases progressed from that point. However, my offer was summarily declined.  To this day I still don’t know why my assistance was declined, when on an objective basis I have written more on the interpretation of the NPT than any of the lawyers involved, and have taken positions in those writings sympathetic to the substantive arguments the RMI wanted to make in these cases. My only sense is that I was not in the little clique of friends that had decided to convince the RMI to bring these cases, and who now wanted to handle all of the legal arguments themselves.  I guess we now know how that turned out.

2. This brings me to my next point of commentary.  As you can read in my previous blog posts on these cases, my review of the written work of the RMI’s lawyers, both in their case against the U.S. in federal court and in the cases before the ICJ, produced the conclusion that the clique of friends was simply not professionally up to the task of making the required legal arguments at the level of quality that was necessary in the uphill procedural and substantive battle that they had chosen to fight by themselves. Others can view the documents and make up their own minds, but in my opinion the lawyering by the RMI’s legal team in these cases was of poor quality.  Just looking, as I did in one of my posts, at the juxtaposition between the RMI’s brief and the U.K.’s brief  on the issues of jurisdiction, it’s easy to see the difference in the quality of lawyering between the sides.

I think the fact that the RMI cases were ultimately dismissed because the RMI’s lawyers failed to establish the most basic, necessary legal fact – i.e. the existence of a dispute between the parties – is evidence supporting my conclusion about the quality of their work.  Having decided to go down the contentious case route, how hard would it have been to counsel the RMI to take some time, prior to the filing of the cases, to clearly and directly communicate the existence of a dispute to the three respondents, and then engage in attempts to resolve the dispute directly with the respondents for a reasonable time before filing, so that once the cases had been filed the knowledge of the dispute could not be denied by the respondents?  Pretty basic stuff.

3. I am not privy to the communications or the details of the relationship between the RMI and its legal team.  So all I can say is what the narrative of these cases appears to me to be from the outside, and I give the following as my opinion and not as a statement of fact. What the overall narrative of these cases suggests to me is that a small group of NGO-based lawyers who are passionate about nuclear disarmament law convinced a small, developing country to leverage its tragic history with nuclear weapons testing in order to bring cases against nine states, in addition to a case in the domestic courts of one of those states, so that this small group of lawyers and a few of their close friends could live out their dream of standing in front of the ICJ making legal arguments against the evil nuclear weapons possessing states.  Even though the lawyers knew or should have known that there was absolutely no chance of most of those cases succeeding, and only a slim chance of a few of those cases succeeding, they nevertheless took the small, developing state’s money to bring them. They didn’t use that money to hire real experts in both procedure and substance of the issues that they would be arguing. Instead, they decided they could handle all the issues all by themselves.  I have no idea what they told their client about the likelihood of success of these various cases, or whether they built themselves up as being more capable lawyers than they actually were. But just from what I can see from the outside, this looks like a case of exploitation of a small, developing country and its tragic history by a small group of lawyers for their own personal and professional gain.

4. I have to say that I am ultimately glad that the RMI’s cases against the U.K., India, and Pakistan were dismissed today. From the moment I began to be concerned about the quality of the RMI’s legal team, my biggest fear about these cases was that they would in fact proceed to the merits and that the bad lawyering of the legal team would lead the court to adopt a judgment on the merits that provided a weak interpretation of the Article VI disarmament obligations.  This would have been a real blow to the ongoing diplomatic effort to force the nuclear weapon states to take their Article VI obligation seriously. This effort has now been added to by the humanitarian initiative, but Article VI is of course still important as the only multilateral treaty obligation in existence relative to nuclear disarmament. So I am glad that we have avoided that result with today’s rulings.