New Paper on Strategic Trade Controls

I wanted to bring readers’ attention to a paper I recently wrote on strategic trade controls. It’s forthcoming in an edited collection, but it’s available now on SSRN at this link.  STCs are a subject I’ve been working on for about 18 years, since my days of studying and working with the excellent staff at the University of Georgia Center for International Trade and Security.  STCs are an often undervalued but extremely important part of the overall system of WMD nonproliferation law.  I wrote this piece based upon both my academic work in the area, and the work on the ground I’ve done over the past few years advising the Government of Jordan on the creation of their new transit and transshipment STC law. I hope some find it a useful explication of the area.


2019 IAEA Safeguards Implementation Report

I know I’ve been a bit quiet lately. I am working on a new book on the TPNW in its context within international nuclear weapons law. I’ve also been traveling to Jordan a lot the past few years to assist in their development of a strategic trade control transit and transshipment law and implementing regulations.

Obviously a lot going on in the arms control law world. Most important is probably the imminent demise of New START and the Trump administration’s disingenuous demand that any new nuclear arms control treaty include China.

But in the midst of everything else going on, I have been provided with the newly released 2019 IAEA Safeguards Implementation Report by a friend acting in the interest of transparency. SIRs are always fascinating sources of information about the IAEA’s work. This one comes with an annex describing the facilities subject to IAEA safeguards around the world.  So enjoy reading these and I’ll get back to work on my book.

Best wishes to all.

DJ

 

SIR 2019

GOV-2020-8 – Annex AR_facilities under SG


May 31, 2019 IAEA Director General’s Report on Verification of UNSCR 2231 in Iran

Find the full report below.  One particular paragraph of interest:

 

24. Iran continues to provisionally apply the Additional Protocol to its Safeguards Agreement in accordance with Article 17(b) of the Additional Protocol, pending its entry into force. 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 facilitates implementation of the Additional Protocol and enhances confidence.

 

IAEA Report GOV_2019_21_Iran_31May2019


2018 IAEA Safeguards Implementation Report

I received a copy of the 2018 Safeguards Implementation Report from a friend. Find a link to it below.

A different friend, Jonathan Tirone, wrote a typically excellent summary of some of the takeaway points from the SIR regarding Iran inspections today over at Bloomberg News. You can find his story here.

For ease of reference, I’ll also paste the text of his story below.  All of this is relevant to the current Trump-imposed crisis regarding Iranian compliance with the JCPOA.


Iran Snap Nuclear Inspections Jump as Tensions With U.S. Rise

By Jonathan Tirone

May 10, 2019, 9:39 AM CDT

Snap inspections at Iranian nuclear facilities jumped last year, underscoring the wide-reaching ability of international monitors to access potential sites that could feed clandestine research.

The finding was included in the International Atomic Energy Agency’s latest Safeguards Implementation Report, which is circulating among nuclear-security officials as the specter of another Middle Eastern conflict rises. Europe in particular has found itself squeezed between hostile governments in Washington and Tehran after the U.S. left the nuclear deal and slapped sanctions on Iran.

According to a copy of the restricted report published this week and obtained by Bloomberg News, inspectors deployed in Iran conducted a record number of so-called complementary accesses for a third year running in 2018. Almost 400 inspectors spent some 1,867 person-days combing Iranian sites and triggered more than three surprise visits a month.

“These snap inspections are a reflection of the concern, particularly among Europeans, that Iran would ramp up nuclear work in a clandestine fashion after the U.S. left the nuclear deal,” said Ellie Geranmayeh, a senior fellow at the European Council on Foreign Relations.

Iran Snap Inspections

Monitors conducted more than three surprise visits a month last year

Source: IAEA Safeguards Implementation Report

Iran on Wednesday warned that it would abandon some elements of the 2015 accord if European nations failed to come up with ways to protect banking and oil business within 60 days. A day later the U.S., which left the agreement a year ago and is sending a carrier strike force to the Persian Gulf, piled on more penalties.

The escalation is disconcerting to non-proliferation officials who see the so-called Joint Comprehensive Plan of Action between Iran and world powers as a model agreement, one that bestowed unprecedented powers and access to international monitors.

The agreement “amounts to the most robust verification system in existence anywhere in the world,” IAEA Director General Yukiya Amano said last month in Washington after meeting with U.S. officials.

Since the deal came into force in January 2016, IAEA inspectors have issued 14-straight reports showing that Iran has remained within the parameters of the deal.

That could change during the third quarter, after the U.S. revoked two waivers that permitted Iran to ship out enriched uranium and heavy water. Delivering his response to a year of U.S. pressure, Iranian President Hassan Rouhani said Wednesday that recent enriched-uranium stockpiles would exceed limits if the country isn’t allowed to send its inventories of the heavy metal overseas.

Four years of IAEA verification, amounting to more than 8,000 inspection days and more than 100 snap inspections, have cost about 85.5 million euros ($96 million), or about three-fifths the cost of a single F-35 fighter jet made by Lockheed Martin Corp.

Iran Monitoring Costs

Total inspections costs are less than EU100 million under the deal

Source: IAEA Safeguards Implementation Report

“We’re seeing the cost of keeping peace through this diplomatic accord far cheaper than the cost of a potential military confrontation,” according to Geranmayeh, who advises EU governments. “That’s something to consider for a cost conscious U.S. president that complains about ‘forever wars’. The cost of the deal is a drop in the ocean.”

 

SIR 2018_6May2019dstr


IAEA Continues to Verify Iran’s Compliance with JCPOA; So Far Refuses to Re-open Iran’s PMD File

I recently came into possession of the IAEA Director General’s February 22, 2019 report to the Board of Governors on IAEA verification activities in Iran. See it at the link below.  It states in relevant part that

Iran continues to provisionally apply the Additional Protocol to its Safeguards Agreement in accordance with Article 17(b) of the Additional Protocol, pending its entry into force. 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.

and in summary that

The Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and locations outside facilities where nuclear material is customarily used (LOFs) declared by Iran under its Safeguards Agreement. Evaluations regarding the absence of undeclared nuclear material and activities for Iran remained ongoing.

This isn’t news other than the fact that the IAEA, once again, determines that Iran is fully living up to its end of the JCPOA, even though the US is no longer keeping its commitments under the deal.

This is in keeping with the U.S. intelligence community’s recently re-iterated assessment that Iran is not currently undertaking activities relevant to developing a nuclear weapon, contrary to high profile yet erroneous assertions by the Trump administration.

It is also remarkable that this report does not mention the trove of documents which Israel claims to have appropriated from a storage facility in Iran and which, Israel says, provides evidence that Iran lied about its past nuclear weapon related activities.

Even though Israel and the U.S. have been lobbying IAEA Director General Amano hard to re-open the IAEA’s assessment regarding the possible military dimensions of Iran’s nuclear program, which it provided in 2015 in conjunction with the adoption of the JCPOA, so far the IAEA does not seem impressed by the alleged revelations.  At least not impressed enough to change their assessment, or even mention the new claims in this most recent report.

I think it’s important to keep noting that Iran, as well as the other JCPOA parties other than the U.S., are still committed to the deal and recognize its importance.  The U.S. decision to cease upholding its commitments under the JCPOA was wrongheaded – based on incorrect assertions about Iran’s compliance with the JCPOA, and in the end clearly just the product of a President who thinks that no deal agreed to by anyone but him is any good.

IAEA_Iran Report_gov-2019-10_22FEB2019


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 . . .

——————————————————————————————————————

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 »


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!