Guest Post – Planetary Defense and International Law: Balancing Risks

I’m very pleased to host a guest post from an old friend of mine, and A-list international law academic, James Green.  James is Professor of Public International Law at Reading University. He has written widely on international use of force law, WMD proliferation law, and he most recently wrote an acclaimed book on the persistent objector principle.

In this post, James considers what would happen if Bruce Willis movies predicted the future.  I’ll leave it to James to explain 🙂

But seriously, this is in fact a very interesting legal area due to the various treaty and customary law principles it implicates. Take it away, James . . .

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Planetary Defense and International Law: Balancing Risks

By: Dr. James A. Green

Professor of Public International Law, University of Reading (UK)

 

Major asteroid impact is a low-probability, but high-consequence risk.  Large ‘Near-Earth Objects’ (NEOs) don’t hit Earth often, but there have been at least 5 extinction-events in the history of our planet because of such impacts (not least, the end of the dinosaurs). Of course, low probability risks are easily dismissed, however high the consequences of them manifesting might be, and, until recently, the countries of the world largely viewed the threat posed by NEOs as something best left to Hollywood films like Armageddon or Deep Impact.  Limited funding, a lack of coordinated strategies and infrastructure, and a pervading absence of political will all meant that – had a large collision-course asteroid appeared 20 (or even 5) years ago – our chances of responding to it in time might have been pretty slim.

But that’s all changed, following the impact (in more ways than one) of the meteoroid that hit Chelyabinsk in Russia in 2013, which injured over a thousand people. Suddenly, the NEO threat became ‘real’, and major players – the US, Russia and the EU – all started pumping money into NEO preparedness, and developing formal strategies for response (see, for example, the production of the US’s first ever National Near-Earth Object Preparedness Strategy in December 2016).  At the UN, we’ve witnessed the recent creation of an embryonic international institutional infrastructure, with new inter-state bodies to detect (IAWN) and respond (SMPAG) to asteroids.  The risk of asteroid cataclysm hasn’t changed – it’s still extremely unlikely any time soon, but very likely at some point in the next 100,000 years (who knows when?) – but what has changed is that humanity now has the global political will and infrastructure to begin to be in a position to respond, if needed.

Alongside this, there is an increasingly strong, if not unanimous, scientific view that the use of nuclear weapons would in many cases be our best hope of responding to a collision-course NEO.  NASA has quantified the use of nuclear weapons as being between 10-100 times more effective than any non-nuclear alternative.  In line with this view, the newfound (post-Chelyabinsk) governmental and inter-governmental focus on NEO preparedness has particularly engaged in developing what we might term the ‘nuclear option’.  For example, even before the end of 2013, the US and Russia had mooted working on a nuclear planetary defense initiative together.  That now seems to be on hold given current tensions between the two states (Crimea, Trump’s election, Salisbury, you name it), but the very fact that these nations – given their shared nuclear history – seriously considered the possibility of joint nuclear action against asteroids speaks volumes.

Read the rest of this entry »

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Workshop at the UWE in Bristol on the TPNW

A few weeks ago I participated in a workshop at the University of the West of England’s Bristol Law School. I gave an introductory address on my thoughts to this point about the TPNW, and then a number of colleagues from a really wonderfully diverse array of legal specialties provided commentary on their reactions and insights.  I found it tremendously useful to hear from this excellent group.  Particularly of note was the attendance of my old friend Professor James Green from Reading, and Dr. Noelle Quenivet of the UWE who also very generously organized the event.  Noelle has subsequently written a post about the event here on the blog of the UWE Centre for Applied Legal Research. With her permission, I will reproduce that post below.


Treaty on the Prohibition of Nuclear Weapons workshop with Professor Dan Joyner at UWE Bristol.

Posted on

By Dr Noelle Quenivet.

On 10 September 2018 the International Law and Human Rights Unit had the pleasure to welcome Professor Dan Joyner of Culverhouse School of Law of the University of Alabama (USA) for a workshop on the newly adopted Treaty on the Prohibition of Nuclear Weapons. Prof Joyner is a renowned specialist in nuclear non-proliferation law who has extensively written on the subject and is currently penning a book on the new treaty. He also curates the widely known blog Arms Control Law.

The workshop started with a lunch to give participants the opportunity to meet with Prof Joyner in a less formal manner as well as to get to know each other as they came not only from UWE but also from the University of Reading and the University of Bristol. Participants included scholars well-versed into nuclear weapons and disarmament law as well as students on our LLB in European and International Law programme.

The aim of the workshop was to examine the new treaty from a variety of perspectives, such as human rights, armed conflict, use of force, security, environment, non-proliferation, organised crime, etc and it no doubt succeeded in doing this.

After a round of introduction, Prof Joyner started with a couple of key facts. The treaty was negotiated amongst 123 States and almost unanimously adopted (The Netherlands voted against whilst Singapore abstained). It will enter into force upon the receipt of the 50th instrument of ratification. Although at the time only 15 States have ratified the treaty and 60 have signed it, Prof Joyner forecasted that it would soon enter into force. Prof Joyner then brought us back in time, to the 1960s when all discussions relating to nuclear weapons were focused on non-proliferation rather than a blanket prohibition. In 1968 the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was adopted at the height of the Cold War with the twin aims of stopping the proliferation of nuclear weapons (with a view to full disarmament) and promoting cooperation in the peaceful use of nuclear energy. A distinction was made between nuclear and non-nuclear States. A quid pro quo was found: the nuclear powers (the five permanent members of the United Nations Security Council, also commonly known as the P5) could keep their nuclear weapons but would ensure their non-proliferation (Articles I and II), work towards disarmament (Article VI) and submit themselves to the monitoring of the International Atomic Energy Agency (Article III) whilst the non-nuclear States would receive support in acquiring nuclear energy for peaceful purposes (Article IV). To support the disarmament process some States agreed to set up nuclear weapons free zones. Later, in 1996 the Comprehensive Nuclear-Test-Ban Treaty (CTBT) was adopted but it failed to gather enough ratification instruments to enter into force. That being said Prof Joyner explained that he believed all these treaties had helped eliminate, or at least, reduced the threat of the use of nuclear weapons. This general movement towards disarmament was further buttressed by a series of bilateral agreements between then Soviet Union and the United States of America.

The three pillars of the NPT are non-proliferation, the peaceful use of nuclear energy and disarmament. Prof Joyner observed that over the years the rhetoric had changed in the various review conferences that brought all State parties together. More and more lip service was paid to non-proliferation whilst a coalition of States whose focused had always been on the peaceful use of nuclear energy and on disarmament grew increasingly frustrated. Such States complained that the nuclear States were not working towards disarmament and that little had been achieved over the years. In reply the nuclear States would point out that the number of nuclear weapons had clearly diminished. Yet, to the non-nuclear States the aim was complete disarmament and not a reduction in number. Also they pointed out that nuclear weapons were still part of the military strategy and that such weapons were continuously being not only maintained but also modernised and upgraded.

Around 2014-2015 talks started about a humanitarian initiative led by NGOs working in the field of gender, the protection of the environment, international humanitarian law and human rights law. This eclectic group of NGOs managed to gain the support of some States to organise a conference whose aim was to show that nuclear weapons were amoral. Yet, to do so they used the law. Such initiative was not new and Prof Joyner admitted that he had not imagined at the time that it would be successful. So, surprisingly, this coalition of NGOs managed to persuade the United Nations General Assembly to approve a negotiating conference for a treaty prohibiting nuclear weapons. In other words, the treaty would be drafted under the auspices of the United Nations. The idea was that of establishing a comprehensive ban on nuclear weapons and to treat such weapons in the same way as other banned weapons such as chemical and biological weapons or landmines. The thrust was that some moral taboo should be attached to the use of such weapons.

The success of the negotiations can be partly explained by the fact that the negotiators tapped into the view that the nuclear States had got away with too much in the past. There was indubitable resentment that the NPT had not achieved what it was meant for, i.e. full disarmament. The nuclear States boycotted the treaty negotiations on the basis that it was just idealistic talking and that nuclear weapons were imperative for military strategy purposes. In particular they reminded the negotiating States that they were in fact benefitting from the nuclear umbrella themselves. The treaty in their opinion would be useless because the prohibition would only apply to States that did not have nuclear weapons and, in a grander scheme, might in fact lead to a delegitimation of the NPT. The reply of those in favour of the treaty was that they had waited too long under the NPT for disarmament to happen. Also, using the example of the Ottawa treaty (Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction) banning landmines, they expressed the view that it might be possible to create a customary international rule via a treaty (though Prof Joyner explained that it might be difficult owing to the specially affected States doctrine under international law) or that at least the treaty would become part of nuclear diplomatic talks and thus become a commonly used instrument raised in deliberations relating to nuclear weapons.

Prof Joyner finally shared his thoughts on the ratification process and potential State parties. He drew the audience’s attention to the fact that the treaty had been so phrased that States which did not have nuclear weapons but allowed other States to use their territory to station or deploy such weapons would not be able to become State parties unless such weapons were being removed from their territory. The application of this specific provision (Article 1(1)(g)) means that NATO States on whose territory US nuclear weapons are stationed, installed or deployed would not be able to become parties to the treaty. This explained The Netherlands’ vote against the treaty. Other non-nuclear States in Western Europe concerned by this provision are Italy, Belgium and Turkey. As a result such States are faced with a tough choice because Article 1(1)(g) clashes with their NATO commitments. A further issue is that of States such as South Korea or Japan who benefit from the US nuclear umbrella and find it difficult to side with the US.

The presentation was followed by an engaging discussion and critical analysis of the treaty. One of the first questions related to organised crime and in particular the black market in nuclear weapons. Prof Joyner explained that in the 90s after the fall of the Soviet Union efforts were made to secure its nuclear stock. Yet, nuclear materials still turn up but what is in fact more dangerous in his view is the dual use of such materials. Also he observed that there was a shift in the illegal nuclear market from fizzle materials to intellectual property (designs and data) which has its own challenges as there are non-tangible goods. He also pointed out that an elaborate set of shell companies may be set up to launder such illegal activities.

A second issue examined was that of the link between the jurisdiction of the International Criminal Court for the crime of aggression and the treaty and notably problems relating to whether States that were not a party to the treaty could see their nationals being prosecuted for using nuclear weapons. This led the group to examine the concept of jurisdiction as understood in a range of nuclear weapons treaty.

A third point related to the interrelationship between the NPT and the new treaty. Prof Joyner highlighted that the new treaty was meant to be in harmony but yet separate from the NPT. This was particular visible in the choice of words and concepts used in the treaty. As he explained, to some extent it is possible to treat the new treaty as an implementation of Article VI of the NPT.

The conversation then moved back to analysing the individual policies of States that have links to the US. For example, Japan, the only State that had suffered from the use of nuclear weapons, was struggling to explain why it was not able to become a party to the treaty. Similar debates were being held in Germany. During the discussion it was mentioned that the US had sent rather stern letters to its NATO partners informing that they should not sign or ratify the treaty. The new treaty had definitely changed nuclear diplomacy. Until then, the combination of the NPT and the work of the IAEA was the best of both worlds: it could keep its nuclear weapons whilst being ensure that no further States would gain access to the pertinent technology.

A reference to a declaration made by India that it did not believe that the treaty would eventually become customary law launched an interesting debate on whether India had proffered its first utterance with a view to becoming a persistent objector under international law. A wider discussion on the formation of customary international law and the doctrine of specially affected States that was first mentioned in the Nicaragua Case ensued.

Parallels with other treaties such as the Ottawa Convention on landmines and the Convention on Cluster Munitions were also drawn as some provisions of the new treaty seemed to have been heavily influenced by (or even copied/pasted from) the wording used in previous conventional weapons conventions. Also the fact that this treaty was the fruit of a concerted effort by NGOs was noted as another example of bottom up initiatives in the field of disarmament and weapons prohibition, much alike the current Ban the Killer Robots campaign. Prof Joyner observed that without the support of this eclectic group of NGOs the treaty would have never existed. Yet, it was also their engagement with the process that had led to a long preamble that at times read like a list of loosely connected items.

Plenty of other issues were debated at the workshop and there is no space here to go into details. There was certainly plenty of food for thoughts for Prof Joyner’s forthcoming book on the new treaty!

 

 


The United States’ “Withdrawal” from the Iran Nuclear Deal

I wrote this piece for the site E-International Relations. It appeared there today.

 

The Joint Comprehensive Plan of Action (JCPOA) is a diplomatic accord negotiated among seven states, purposed in addressing the concerns of six of those states (the United States, the United Kingdom, France, Russia, China, and Germany – a.k.a. the P5+1), with the nuclear energy program of the seventh (Iran).  On July 14, 2015, the agreement of the JCPOA was announced, bringing to a successful conclusion almost two years of negotiations, and seeming to bring to an end a period of international tension concerning Iran’s nuclear program that had been ongoing since 2002, and that had at times appeared likely to result in war.

The agreed JCPOA documents consist of 159 total pages of text, including 18 pages of the JCPOA itself, with a further 141 pages divided among five annexes, including a dispute settlement mechanism.  That such a diverse set of state parties, with decades of varying levels of antipathetic relations among them, could come to such a detailed and comprehensive settlement concerning an issue of such high international security sensitivity, was seen by many as nothing short of miraculous, and as a great triumph for diplomatic approaches to the settlement of nuclear proliferation concerns.

On July 20, 2015, the U.N. Security Council adopted Resolution 2231, in which it unanimously endorsed the JCPOA, and brought into force the measures relating to Security Council sanctions agreed therein.  Independently, yet in coordinated parallel with the JCPOA, on July 14, 2015 Iran and the International Atomic Energy Agency (IAEA) signed a “Roadmap Agreement” for the “clarification of past and present outstanding issues regarding Iran’s nuclear programme.”  This agreement, and the report submitted pursuant to it by the IAE Director General to the IAEA Board of Governors on December 15, 2015, brought to a close the IAEA’s multi-year investigation into the possible past military dimensions of Iran’s nuclear program.

By January 16, 2016, the date by which all sides had successfully implemented their initial commitments pursuant to the JCPOA, there seemed to be ample cause for optimism that the JCPOA would in fact fulfill its purpose of reducing international tension over Iran’s nuclear program, and through a carefully negotiated and reciprocal exchange of commitments allow all the parties thereto to achieve their core aims.  For Iran, these were to maintain it’s essential capacities to domestically produce uranium based fuel for its civilian nuclear reactors, including the sensitive step of uranium enrichment, while also having the crippling international financial sanctions that had been levied on the country since 2006 removed.  For the P5+1 the core aims of the JCPOA were to significantly limit Iran’s nuclear fuel production program, and submit it to an unprecedented level of ongoing international monitoring and verification, in order to push Iran much further away from the capacity to produce a nuclear weapon than it was in 2015.  As with any successful diplomatic accord, all sides were able to declare victory to both international and domestic constituencies through the terms of the JCPOA.

Within the context of international nuclear nonproliferation agreements, the JCPOA was a fascinatingly novel and exciting development.  Agreements among states on nuclear arms and nuclear energy have for decades typically taken the form of formally adopted treaties, constituting obligations of international law for the parties thereto.  This was certainly the case with regard to the nuclear arms control agreements negotiated between the United States and the Soviet Union/Russia both during and after the Cold War, and it was true of international agreements concerning nuclear weapons testing and regional nuclear weapon free zones.  The cornerstone of this web of treaties concerning nuclear energy and nuclear weapons proliferation is the Nuclear Non-Proliferation Treaty, which came into force in 1970, and which mandates that all non-nuclear weapon states conclude separate and additional bilateral treaties with the IAEA.  In short, the nuclear nonproliferation normative regime in international relations was, and continues to be, a highly treatified area of formal international legal obligations among states.

But the JCPOA broke that mold.  It was very deliberately negotiated not as a formal legally binding treaty among its parties, but as a legally non-binding diplomatic accord based in political, instead of legal, commitments.  States, of course, frequently enter into agreements with each other and make commitments that are not intended to be legally binding, yet do reflect an agreement among the parties with regard to some issue of their international relations. Sometimes these agreements are termed “memoranda of understanding” or “executive agreements.” In this case the agreement is entitled a Joint Comprehensive Plan of Action, which conveys the legally nonbinding nature of the text.

And yet, as noted above, the JCPOA consists of 159 pages of excrutiatingly detailed recitations of agreed terms and a schedule for their implementation, including specific commitments concerning Iran’s nuclear facilities and technical capabilities, specifically enumerated sanctions laws and regulations which were to be withdrawn, a highly proceduralized dispute settlement mechanism, and a pre-agreed process whereby any one of the permanent five members of the U.N. Security Council – all of whom were parties to the JCPOA – could unilaterally bring the Security Council’s prior economic sanctions on Iran back into application in the event it felt Iran was not in compliance with the agreement (i.e. the so-called “snapback” procedure).

The JCPOA seemed to represent a new wave of international agreements addressing highly sensitive and controversial issues of international relations through non-legally-binding, yet highly detailed and comprehensive recitations of political commitment.  This use of what some have referred to as “soft law” approaches to high-politics issues of international affairs was of course not new overall – non-legally-binding recitations of political commitments had of course been employed before by states on a wide range of issues of international relations (see, e.g., the 1975 Helsinki Final Act, and elements of the 2015 Paris Climate Accord).  But in the context of the nuclear nonproliferation issue area, the JCPOA was novel in its detailed and comprehensive handling of a complex and multi-faceted dispute through the form of a mutually agreed document reciting political and not legal commitments.

From January 2016 through May 2018, the IAEA, as well as the U.S. government, repeatedly confirmed that Iran was in compliance with its commitments under the JCPOA, which entailed among other things the shipping of most of Iran’s stockpile of low-enriched uranium out of the country, reducing enrichment capacity by placing two-thirds of its operating centrifuges into storage, permanently disabling its heavy water reactor at Arak, and bringing into effect an Additional Protocol inspection treaty with the IAEA under which it allowed an unprecedented level of access to the agency’s inspectors.  In 2017 alone, the IAEA conducted 419 safeguards inspections in Iran – far and away more than in any other safeguarded state.  Added to this, in 2017 the IAEA conducted a total of 35 complementary access inspections in Iran. These are sometimes referred to as “snap” inspections because of the shorter notice period given to the state prior to the inspection.  In May 2018, Iran’s nuclear program was the most closely monitored in the world, and it was vastly reduced in scope and activity as compared to 2015.

Nevertheless, this is precisely when U.S. President Donald Trump decided to “withdraw” the U.S. from the JCPOA, and to re-impose the economic sanctions on Iran that had been lifted under it.  Trump had long criticized the JCPOA as “the worst deal ever.”  He cited as his reasons for leaving the agreement the fact that it did not address Iran’s ballistic missile program or its regional behavior, and that most of Iran’s commitments under the JCPOA are limited to a 10-15 year period, after which Iran could resume its enrichment and other covered activities at pre-JCPOA levels.

Much has been written about the reasons for the U.S. withdrawal, and about its prudential character.  I would rather like to briefly discuss the issue of how best to characterize this action taken by the U.S.  Due to the legally nonbinding character of the JCPOA, one cannot use legal language to describe states’ interactions around the agreement. One cannot, for example, look to the rules of treaty law found in the 1969 Vienna Convention on the Law of Treaties to assist with things like interpretation of the agreement, implementation, breach, or termination.  These rules apply only to treaties, i.e. legally binding international agreements. This makes an analysis of the meaning and proper characterization of its purported withdrawal tricky.

But even with regard to legally nonbinding agreements among states, there is at least a principled difference between withdrawing from an agreement, on the one hand, and breaking it on the other. Perhaps it would be best, for analogical purposes, to use the language of contracting which Trump, the self-professed master of dealmaking, at least ought to understand from a principled perspective.  The essential function of a contract in a domestic legal system is to protect the parties’ reasonable dependence on the promises made by the other parties, when the actions recited by the promises do not occur simultaneously.  For example, the cable company will make me sign a contract to pay them over a set period of time in the future before they will undertake the up-front cost of giving me the necessary equipment and turning on the cable signal. If there were no contract in this situation, it wouldn’t make sense for the cable company to simply trust that I will make the agreed payments in exchange for their up-front costs.

The JCPOA, while not a legally binding treaty, was an international agreement comprised of reciprocal promises exchanged by the various parties.  It was a quid pro quo, i.e. Iran’s promises were made in exchange for the promised actions of the P5+1, and vice versa.  And as with the cable company hypothetical above, the actions recited by the parties’ promises were not to happen simultaneously.  In the case of the JCPOA, the bulk of Iran’s commitments – including the shipping out of the country of most of its stockpile of low-enriched uranium, the disassembling and shelving of two-thirds of its centrifuges, the permanent disabling of the Arak reactor, and the bringing into force of an Additional Protocol inspection agreement with the IAEA – were frontloaded to the beginning of the JCPOA’s term, and were in fact essentially accomplished by Iran by Implementation Day – January 16, 2016.  The commitments of the P5+1, on the other hand, were primarily to consist of the lifting of economic sanctions, and of keeping them lifted, for the entirety of the term of the JCPOA.  The essential agreement enshrined in the JCPOA was that Iran would implement the bulk of its promises first, in reliance on the promises made by the P5+1, including the United States, that they would in return implement the bulk of their promises over the succeeding 15 years.  And the U.S. was, of course, integral to the JCPOA coming into being. Because of its economic power, and the effect of U.S. economic sanctions, there would have been no agreement reached without the participation and commitment of the U.S.

Some observers have commented that lawful withdrawals from international agreements do occur, even when there has been no violation of their terms.  And that this is true even in the arms control area. They frequently cite to the U.S. withdrawal from the Anti-Ballistic Missile Treaty (ABM) treaty with Russia in 2002.  The difference in that case, however, was that there was a negotiated withdrawal clause in the ABM treaty, agreed by the parties.  The JCPOA, by contrast, does not contain a withdrawal clause. The asynchronous nature of the agreed timing of the commitments under the JCPOA made such a clause undesirable.

Because of the frontloaded nature of Iran’s commitments under the JCPOA, and its fulfilment of those commitments in reliance on the future fulfilment of the commitments of the P5+1, along with the fact that the JCPOA does not contain a withdrawal clause agreed among the parties, it would be more accurate in my view to characterize the U.S. action in May 2018 not as a withdrawal from the JCPOA, but as a simple breaking of its commitments made therein.  To be clear, I am not arguing that the U.S. violated international law through breach of a legally binding obligation. What I am saying is that the term “withdrawal” conveys a sense of justifiability which simply does not exist here.  There was no basis in the agreement or in its context of implementation on which to justify the U.S. decision to cease the fulfilment of its promises made under the JCPOA.  The U.S. simply decided to break those promises.

In my view, the JCPOA was in fact a tremendous victory for diplomacy. It was a novel, creative, intelligent solution to a problem in international relations that had – and still has – the potential to lead to war.  The U.S. had no principled basis for its decision to abandon the JCPOA. This action was not a violation of law but it was a, frankly, shameful refusal to abide by promises which the United States had made, and on which another state had reasonably relied. To term this action a withdrawal is to sugarcoat a simple breaking of promises.

Nothing in international law prevented President Trump from deciding to not honor the promises made by the United States in the JCPOA.  But let’s call it what it was. And it wasn’t a withdrawal.


Friend or Foe: The Treaty on the Prohibition of Nuclear Weapons and the NPT

I’m very pleased to host a guest post by Dr. Stuart Casey-Maslen. Stuart is Research and Policy Coordinator at the International Campaign to Abolish Nuclear Weapons (ICAN) and an Honorary Professor at the University of Pretoria’s Human Rights Centre. He holds a doctorate in international humanitarian law and master’s degrees in international human rights law and forensic ballistics. I’ve known Stuart for quite a while as one of the high quality people writing in the area of arms control law. He co-edited Nuclear Weapons under International Law, published by Cambridge University Press in 2014 (which included a chapter from me), and is the author of a legal commentary on the Treaty on the Prohibition of Nuclear Weapons, to be published by Oxford University Press in January 2019.

 


Friend or Foe? : The Treaty on the Prohibition of Nuclear Weapons and the NPT

By: Stuart Casey-Maslen, Research and Policy Coordinator, ICAN

Of all the attacks aimed at the TPNW by nuclear-weapon states (as well as some of the more militant umbrella states), one of the most persistent has been that the Treaty undermines the existing non-proliferation and arms control architecture, especially the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT). For instance, on the day the TPNW was adopted by 122 states in New York, France, the United Kingdom, and the United States issued a joint statement in which they argued that the new treaty risked “undermining the existing international security architecture which contributes to the maintenance of international peace and security” and reiterated their “continued commitment” to the NPT and to further promoting “its authority, universality and effectiveness”.

First and foremost, it is important to recall that the TPNW explicitly acknowledges and supports the NPT. A preambular paragraph dedicated to that treaty declares that the NPT is “the cornerstone of the nuclear disarmament and non-proliferation regime” and reaffirms that its “full and effective implementation” has “a vital role to play in promoting international peace and security”. That is an unequivocal endorsement. It also contains treaty language taken almost directly from Article 11 of the NPT; specifically the obligation in Article 1, paragraph 1 (c) never under any circumstances to “Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly”.

For sure, there is no “get-out-of-jail-free” card in the TPNW as is claimed, seemingly for perpetuity, by the P5 “Nuclear Weapons States” named as such under the NPT (Article VI notwithstanding). All nuclear weapons by any state party must be withdrawn from operational status and destroyed. In addition, the assistance provision in the TPNW (Article 1, paragraph 1(e)) prohibits the provision of source or fissionable material to the P5 for the purpose of producing or maintaining nuclear weapons, which is not the case under the NPT. So the TPNW goes beyond the NPT in restricting vertical proliferation as well as horizontal proliferation. That additional layer of protection is a good thing (unless one happens to believe that the more nuclear weapons the P5 possess, the better for humanity; more on that issue below).

But in April 2018, in a written “Outline of Legal Risks for States Contemplating Joining” (the TPNW), officials from the United States doubled down on the rhetoric, claiming that the new Treaty was “a step backwards on nonproliferation verification by ignoring the Additional Protocol” and that it was “inconsistent with the practice under the NPT of achieving progress on disarmament pursuant to negotiated measures containing rigorous verification and reflecting the realities of the international security environment”.

Let’s look at these issues in turn and see if they have merit.

First, is the TPNW a step backwards in verification and does it ignore the Additional Protocol?

The TPNW obligates every state party to either maintain or — if it does not yet have one in place — to negotiate and bring into force with the International Atomic Energy Agency (IAEA) its Comprehensive Safeguards Agreement (INFCIRC/153 (Corrected)). This is at least as strong as, and certainly more specific than, the obligation in Article III of the NPT to accept safeguards on source or special fissionable material “with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices”. Moreover, around a dozen states parties to the NPT do not yet have a Comprehensive Safeguards Agreement in force. Surely, any other international instrument that serves to pressure those states into concluding such an Agreement is a good thing?

It is true that the TPNW does not obligate every state party to negotiate and bring into force the Additional Protocol on safeguards with the IAEA. But nor does the NPT. By the end of 2017, though, an impressive 132 states had an Additional Protocol in force with the IAEA.

For those not familiar with it, the Additional Protocol is a binding agreement with the IAEA granting the Agency additional inspection authority to that provided in the Comprehensive Safeguards Agreement. A principal aim is to enable the IAEA inspectorate to provide assurance about the accuracy and completeness of declared activities and the absence of undeclared activities. Under the Protocol, the IAEA is granted expanded rights of access to both information and sites. Activities carried out during such complementary access can include examination of records, visual observation, environmental sampling, use of radiation detection and measurement devices, and the application of seals and other identifying and tamper-indicating devices.

But the TPNW does go further than the NPT in safeguarding. Any state that owned, possessed or controlled nuclear weapons on 8 July 2017 and subsequently eliminated their programme prior to becoming a party to the TPNW must agree upon safeguards that are “sufficient to provide credible assurance of the non-diversion of declared nuclear material from peaceful nuclear activities and of the absence of undeclared nuclear material or activities in that State Party as a whole” (Article 4, paragraph 1, TPNW). In practice, this means the Additional Protocol, even if the instrument isn’t cited explicitly in the text. In this regard, therefore, the TPNW goes significantly beyond the requirements laid down in the NPT.

Now let’s consider whether the TPNW is inconsistent with the so-called “practice” under the NPT. Massive reductions in their nuclear arsenals have been achieved by Russia and the United States since the apogee in the 1980s. Bold agreements (the INF Treaty, START, and New Start) were concluded bilaterally by successive presidents to reduce their stockpiles and make the world a safer place. In recent years, though, this trend has stalled and “modernisation” has become the new buzz word. More “usable” nuclear weapons are being developed. These new trends are provoking a new nuclear arms race at a time when societies can ill afford it.

So what is actually inconsistent is the practice of the P5 with respect to their legal obligations under the NPT. Article VI is explicit: each state party to the NPT “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”. The International Court of Justice went further in its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, holding unanimously that “There 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.” (Dispositif F, added emphasis)

The United States has expressed support for a nuclear-free world, but has also committed to maintaining an arsenal for deterrence and defence as long as nuclear weapons exist. So where are the negotiations to make these weapons a thing of the past? A new arms race is a clear violation of Article VI. The 122 states that adopted the TPNW were living up to their NPT obligations. The P5 are not.


Guest Post: A Comparison of Two Geological Disposal Facilities, and the Implications of International Nuclear Law

This past March I taught a week-long course at the University of Manchester, in the UK.  The course was, as far as I know, unique. The title of the course was “International Nuclear Energy Law.”  I designed the course to cover the international legal sources regulating the civilian nuclear energy industry.  So both hard and soft law sources on nuclear safeguards, trade in nuclear technologies, nuclear facility and materials safety and security, nuclear incident liability, nuclear materials transport, radioactive waste disposal and the environment, and international investment law related to nuclear facility new builds. This was definitely a bit of a stretch from my usual short-course subject of nuclear nonproliferation law, but of course there is considerable overlap and I wanted to expand my teaching and research repertoire.  And as it happens, Manchester has both a very strong nuclear engineering school and an excellent law school.  So along with friends on both faculties, we designed this course to be cross listed for both law students and nuclear science students.  The result was just remarkable.  The class of 28 students was comprised about equally of law students and nuclear science (engineering, physics, chemistry, etc.) students. And the discussions that ensued were fascinating, with both groups contributing insights from their disciplines.  I think the group work particularly was enjoyable for the students.  Every day in the afternoon I would give them a case study based on the morning’s lecture, and break them into groups containing both law students and nuclear science students, and have them work together to come up with an answer which they then reported to the full class.  Seeing the discussions that they had among the different disciplines was really exciting.  I’m hoping the course will become a regular, annual event.

So, among the final papers that were submitted by the students in the course, I thought I would post one of the best ones here, so that readers could see the kind of subjects we discussed in the course.  The below is the course paper submitted by Amber Mason, who is a PhD student in her second year at the Materials Science and Engineering Department at the University of Sheffield.  Her research involves investigating potential materials for the purpose of nuclear waste immobilisation, with a particular focus on the plutonium stockpile currently stored at Sellafield, UK.  She wrote the below paper for the course comparing two different examples of geological disposal facilities for radioactive waste, and also considering the requirements of international law for such facilities.  I thought it was a great paper, so wanted to share it (with her permission of course).  Comments welcome.

Read the rest of this entry »


Guest Post on the “Conventionalization” of Nuclear Weapons and Implications for International Law

I’m pleased to introduce the below guest post by Olha Bozhenko. She is an LL.M student in International Litigation (Public International Law) at the Institute of International Relations Kyiv National Taras Shevchenko University. She holds a BA (Hons) in International Relations from the same university. She is an Associate at Marchenko Danevych law firm (Ukraine).

I like this piece because I think it address some timely dynamics in nuclear arms control, and then provides an interesting and meaningful discussion of some of the implications of these dynamics for international law.  Comments welcome.

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Is the Conventionalization of Nuclear Weapons Detrimental to the Associated International Legal Regime?

By Olha Bozhenko

 Nuclear weapons enjoy a separate and unique regime under international law. The majority of states struggle to establish a complete prohibition of nuclear weapons, as in the case of other categories of WMD. In fact, in its only authoritative pronouncement on the matter, the ICJ stressed ‘the unique characteristics of nuclear weapons, and in particular their destructive capacity’ (para 36).

Yet in view of some recent developments, to be discussed below, this distinction has been gradually disappearing, with the line between nuclear and conventional weapons becoming blurred. This means that nuclear weapons are not stigmatized as their WMD counterparts, but rather conventionalized.

This piece is an attempt to, first, ascertain the progressing conventionalization among the current trends related to nuclear weapons and, second, delineate its consequences for the international legal regulation of armaments.

Paths of conventionalization

 Nuclear weapons conventionalization has been referred to as ‘nuclear entanglement’, which essentially means the merger of nuclear and conventional weapons. Broadly understood, it manifests itself in the following ways.

 Increased reliance on non-strategic (tactical) nuclear weapons

 As early as in his Dissenting Opinion to the Nuclear Weapons Advisory Opinion, Judge Shahabudeen suggested that assuming tactical nuclear weapons could be no more destructive than conventional weapons, they should not be less lawful than the latter (p. 159). Hence, placing nonstrategic nuclear weapons (NSNW) at the top of ‘conventionalization agenda’ is not a brand-new idea. Besides, it has recently been emphasized in national strategies.

The most striking example is, of course, the US 2018 Nuclear Posture Review (NPR), which radically departs from its predecessor in mandating the development of a range of nonstrategic low-yield nuclear options (p. 52). The Trump Administration considers this departure necessary as a response to Russia’s substantial reliance on and expansion of non-strategic nuclear arsenal, which considerably outstrips that of the US (p. 53). At face value, this means that the two most powerful nuclear-weapon states have embarked upon the rapid expansion of their non-strategic nuclear options.

Such an approach depicting NSNW as quite a usable tool to advance military and non-military goals significantly lowers the threshold for the actual use. Such reliance on a limited nuclear strike can well lead to the full-blown nuclear escalation, which the ICJ considered among the possible consequences of using low yield nuclear weapons (para 94).

Integration of nuclear and conventional planning and operations

 The integration of nuclear and conventional capabilities also contributes to the conventionalization. This is ‘nuclear entanglement’ in the original meaning of the term. The integration includes equipping dual use means of delivery with nuclear and non-nuclear warheads, merging nuclear and conventional support facilities, as well as integrating planning and training for both nuclear and non-nuclear forces. China and Russia are said to pursue this strategy whether deliberately or as a matter of historical legacy. Furthermore, the US’ NPR specifically mandates ensuring ‘the ability to integrate nuclear and non-nuclear military planning and operations’ (p. 21) to ‘deter limited nuclear escalation and nonnuclear strategic attacks’ (p. 58).

These developments are frowned upon for a number of reasons. They tend to erode the line between nuclear and conventional forces in the most palpable manner. They also increase the risk of adversary’s misinterpretation of the nature of an attack, which can simultaneously target ‘entangled’ capabilities.

Expanding range of scenarios for the use of nuclear weapons

 Much has been said on the expanded range of scenarios where the US contemplates first use of nuclear weapons, also in response to non-nuclear threats (2018 NPR, p. 21). Although the US strategy is most widely discussed owing to its considerable departure from the previous pattern, other nuclear-weapon states either preserve deliberate ambiguity with regard to the possible use of nuclear weapons (e.g. the UK and France) or explicitly declare their readiness to balance an adversary’s conventional superiority with a nuclear strike (e.g. Russia and Pakistan).

Expanding the role of nuclear weapons beyond deterring nuclear threats alludes to an increased rationality and military utility of a nuclear strike. This further undermines the arguments that there exists opinio juris prohibiting recourse to nuclear weapons, except for the purposes of deterrence (para 65). In view of such developments it is understandable why the ICJ refused to acknowledge that the non-recourse to nuclear weapons since 1945 had been due to such opinio juris rather than the absence of military necessity (para 67).

Nuclear saber rattling

 Finally, never before has it been so common for political leaders to boast of their states’ nuclear capacities. One may recall Vladimir Putin’s threats to deploy nuclear weapons in the course of Crimea crisis and against Baltic states, or his most recent brandishing cutting-edge nuclear technology with animated nukes striking Florida in an address to the Parliament. Along the same lines, Donald Trump publicly threatened North Korea with ‘fire and fury’ and even with ‘total destruction’.

Although the ICJ refused to differentiate between nuclear and conventional weapons, when assessing the legality of the threat of nuclear weapons use (para 48), the state practice seems to have accepted a special standard for nuclear threats which is measured against the strategy of deterrence. For instance, the UK’s High Court of Justiciary stated that ‘deployment of nuclear weapons in time of peace … is utterly different from the kind of specific ‘threat’ which is equated with actual use’ (p. 452). Under this approach, states would only cross the line of nuclear deterrence and resort to the threat of using nuclear weapons if such a threat is specific enough, i.e. directed against a specific target.

Considering that the arbitral tribunal went so far as to equate the phrase ‘to face consequences’ to a threat of the use of force in Guyana v Suriname (para 439), it is doubtful that states are still within the safe harbor of deterrence when directing their nuclear threats explicitly and specifically against other states.

Consequences for international law

 Driven by analogy with other types of WMD, international law seeks to raise the threshold for using of nuclear weapons (or even contemplating such use) as high as possible. The adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is among the most notable developments to this end. Still, there is an observable tension between the movement towards nuclear weapons ban as enshrined in the TPNW and the trends described above. International legal instruments like the TPNW are grounded on humanitarian considerations. In this particular case, the TPNW is meant to stigmatize nuclear weapons to the extent of their total abandonment by nuclear-weapon states. Considering that nuclear-weapon states refused to take any part in the ‘ban campaign’ leading to the adoption of the TPNW, it is reasonable to assume that such progressive stigmatization (which can eventually generate a parallel customary prohibition) is the only way to endow the TPNW with normative force. Analogy may be drawn with other disarmament treaties such as Convention on Anti-Personnel Mines Ban and Convention on Cluster Munitions: they contributed to the establishment of the customary prohibition of respective armaments even without directly binding all states possessing them.

However, when nuclear weapons are postured to be as usable as conventional ones, the normative boundary between the two is not hardened at all. No stigma is likely to appear for weapons possessing which is dictated and justified by strong military utility. As long as the conventionalization of nuclear weapons is taking place, no binding obligations will probably proceed from the newly established TPNW regime, either as treaty rules or as a crystallizing custom.

Along with the TPNW, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is to bear a major part of ramifications. The core obligation of non-proliferation under Article II is likely to be affected, since nuclear weapons, if conventionalized, make their acquisition by non-nuclear-weapon states more conceivable. Additionally, the deployment of tactical nuclear devices makes nuclear weapons more accessible and ‘proliferable’ in the technical sense, spurring their acquisition by non-state actors, particularly, by terrorist groups. This is an alarming possibility considering that the non-proliferation to non-state actors still constitutes a legal gap largely left to Security Council Resolution 1540.

Besides, the conventionalization of nuclear weapons invites their advancement, which is hardly in line with the (allegedly customary) obligation of nuclear disarmament under Article VI of the NPT. States are not in compliance with their disarmament obligation ‘to achieve a precise result – nuclear disarmament in all its aspects’ (para 99) when they engage in the ‘vertical proliferation’ (i.e. modernizing their nuclear arsenals or expand the range of scenarios to deploy nuclear weapons).

Should the described trends gain traction, their impact will in no way be limited to nuclear weapons regulation, but extend to the whole set of rules on the use of force. In particular, the gradually vanishing line between the threat of use of force and nuclear deterrence will further blur. It is questionable whether teetering on the brink of threats to use nuclear weapons is still justifiable under the concept of nuclear deterrence, which the ICJ was careful to characterize as practice ‘adhered to by states’ (para 67). Consequently, it is doubtful whether nuclear deterrence should enjoy such leniency with respect to the standard of the threat of use of force.

The jus ad bellum requirements for self-defense may also be affected by nuclear entanglement. For instance, it is highly questionable whether a limited strike with tactical nuclear weapons to preclude a massive conventional attack fails to meet the standard of proportionality. Similarly, it is not that clear whether anticipatory nuclear strike against a missile equipped with non-nuclear warhead is unlawful, since a state intercepting such a missile can be misled by its dual-use capacity in view of nuclear entanglement.

The questions of similar nature will arise with respect to jus in bello. With the gap between nuclear and conventional weapons narrowing, there is less room to assert that employing nuclear weapons should ab initio be contrary to the proportionality principle. Correspondingly, what concerns the lawfulness of belligerent reprisals conducted with the use of nuclear weapons, a pre-defined approach exclusively based on the ‘nuclear element’ is likely to give ground to the qualification irrespective of the type of weapons. To put it bluntly, the ICJ’s reasoning that the legality of the use of nuclear weapons shall be considered on the basis of case-to-case compliance with jus in bello (para 2D) seems to be regaining relevance.

 Conclusions

 While any radical transformation of the international legal regime governing nuclear weapons is still unlikely, there is definitely room for considering its adequacy for current challenges. In the near future we should be ready to make a choice of either raising the bar on the conventionalization of nuclear weapons or easing this process. Simply put, international law may find itself in need of deciding whether it is better to ban nuclear weapons altogether rather than to regulate them.

 

 


Amano’s May 24th Report to the IAEA BOG on Iran

Readers may have seen reports in the media about IAEA Director General Yukiya Amano’s most recent report to the IAEA Board of Governors on Iran. Jonathan Tirone has a good one here, as usual.  Although the BOG report itself is restricted distribution, once again in the interests of transparency a Vienna source has provided a copy of the report to Arms Control Law for public dissemination.  You can find it at the link below.

Generally speaking, this report is consistent with the other recent DG reports on Iran’s compliance with the terms of the JCPOA and the IAEA’s monitoring and verification activities pursuant to Iran’s comprehensive safeguards agreement and its additional protocol agreement, which Iran is provisionally applying according to the terms of the JCPOA.

This report, as previous reports have done, finds Iran in compliance with its various safeguards commitments and with the terms of the JCPOA.  It’s worth reiterating in that context some of the facts of the IAEA’s extensive and really unprecedented monitoring activities in Iran, as the IAEA itself reported in its 2017 Safeguards Implementation Report which I recently posted here.

In 2017, the IAEA conducted 419 safeguards inspections in Iran.  This is far and away more than in any other safeguarded state.  Added to this, the IAEA conducted a total of 35 complementary access inspections in Iran, pursuant to the terms of Iran’s additional protocol agreement. These are sometimes referred to as “snap” inspections because of the shorter notice period given to the state prior to the inspection.  These complementary access inspections can also be requested at a broader range of sites than normal inspections under the comprehensive safeguards agreement.  Again, the number of complementary access inspections conducted by the IAEA in Iran in 2017 was significantly higher than in any other state.

Back in March, Amano said that the IAEA “has the world’s most robust verification regime in place in Iran” and has access to “all the locations” that it needs within Iran.

So it is a bit surprising that in this most recent Iran report to the BOG, while again confirming Iran’s compliance with the terms of both the JCPOA and its safeguards agreements, Amano chose to editorialize by saying:

The Agency has continued to evaluate Iran’s declarations under the Additional Protocol, and has conducted complementary accesses under the Additional Protocol to all the sites and locations in Iran which it needed to visit. Timely and proactive cooperation by Iran in providing such access would facilitate implementation of the Additional Protocol and enhance confidence.

Timely and proactive cooperation? The 419 completed inspections and 35 granted complementary access requests weren’t good enough for you? Geesh.  There’s just no pleasing some people!

It’s pretty obvious what the motivation for this superfluous editorializing was. It was almost certainly to throw a bone to the state that brought Amano to the DG dance in the first place, and then got him his second and now third terms in the job. Remember those Wikileaks docs on the “cozy” relationship between Amano and the U.S. delegation to the IAEA?  Well this appears to be him doing his part by inserting this unnecessary language that allows the Trump administration to have a small but useful negative talking point about the IAEA report.

 

IAEA BOG Iran Report May 2018.