Rebecca Johnson on Disarmament and the NPT

I was just reading a new piece by Rebecca Johnson, whom I very much respect, reflecting on the recently concluded final NPT Preparatory Committee meeting before next year’s NPT Review Conference. Rebecca is probably the most knowledgeable person I know on NPT diplomacy issues. I think in this new piece she shares some very important and instructive insight about the relationship between nuclear disarmament and the NPT.  It’s not a long piece and I encourage you to read it.  I’ll excerpt here a few paragraphs from the end that I found to be particularly profound and insightful, about the situation in which pro-disarmament civil society finds itself, while viewing and trying to influence the dance of the elephants that is NPT diplomacy:

In view of the importance and attention given to the NPT by so many of our governments, civil society is stuck in a double bind.  Having tried to make the regime work better and deliver progress on disarmament, we’re stuck with almost annual meetings and five-yearly review conferences that absorb considerable resources without achieving much in the real world. There’s a large ‘business-as-usual’ industry attached to the NPT in many of the nuclear-armed and alliance states, co-opting and trapping too many academics and NGOs in the non-proliferation narrative dominated by the P5. This is fuelled by funders that have downgraded peace and disarmament, and increasingly make the NPT and US-Russian arms reductions their priorities for grants.  Ignoring the NPT, or carping from the sidelines, isn’t the answer either –  since that just renders civil society invisible as far as most governments are concerned.

The run up to the 2015 NPT Review Conference provides us with unprecedented opportunities, as well as challenges. It may look like a game played by governments and NGOs, but the humanitarian stakes are deadly serious. Austria’s ambassador Alexander Kmentt chose this PrepCom to invite all governments and relevant civil society to participate in the Third International Conference on the Humanitarian Impacts of Nuclear Weapons, which will be held in Vienna on 8-9 December. The next year will see the NPT circus create a great deal of sound and fury, but probably not much else. If the Chair’s recommendations from this PrepCom are the most the P5 will accept, what will happen?

The many NGOs that have become partners in the International Campaign to Abolish Nuclear Weapons recognise that to carry the governments we need, we have to connect humanitarian initiatives for a globally applicable treaty to ban and eliminate nuclear weapons with the existing partially applicable NPT regime. As before, it will be a juggling act for civil society to be informed enough to exercise influence without becoming co-opted, irrelevant, or sunk under the NPT’s flawed premises and vested interests. This will be a major challenge in the coming year.

Governments are fond of calling the NPT the cornerstone of non-proliferation. Cornerstones need to be built on, or they end up as stumbling blocks half hidden in weeds. So let’s use the NPT cornerstone to construct more secure walls, and fix in place a higher, broader roof for the world without nuclear weapons that people all over the world want.

In 2015 we cannot let the NPT carry on being a stumbling block used by nuclear-armed states to break disarmament’s legs!

My 2011 Book Favorably Cited by International Law Commission Report

So this is going to sound a little international law nerdy, but I think my fellow PIL academics will understand when I say that I was quite excited when my friend Pierre-Emmanuel Dupont pointed out to me that my 2011 book had recently been cited to favorably in the International Law Commission Special Rapporteur’s second report on the topic of subsequent agreements and subsequent practice in relation to the interpretation of treaties (you can read about the ILC here). I’ll attach the ILC Report to a link below (you can’t just do a hyperlink to it, apparently). See footnote 195 and the surrounding text.

No, this is not a Nobel Peace Prize. But it’s still enough to make the day of an academic.

Basically, this is an argument that I have been making for some time, which is that NPT review conference final documents, which are adopted by consensus of the states parties of the NPT, are sources in which you can find “subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions”, to quote from the Vienna Convention on the Law of Treaties, Article 31(3)(a).  I have used such final document statements fairly extensively in my interpretation of the NPT.

My arguments to this effect have not been uncontroversial, however. Christopher Ford, for example, has opined in our exchanges that NPT Review Conference Final Documents do not contain such statements of subsequent agreement, relevant for treaty interpretation purposes. As he argued in an exchange with me at Carnegie a few years ago, specifically critiquing my 2011 book:

The closest Dan gets to a legal argument for filling out the thinness of Article VI with concrete disarmament content is to declare that the NWS are legally obliged to take every disarmament-related step subsequently called for by the parties at any NPT RevCon. Specifically, he says the NWS’ compliance should be judged according to the degree of their fulfillment of the “13 Steps” described by the 2000 meeting.

To be sure, he is a bit vague about this, admitting that these measures are merely “part of the ‘yardstick’” for assessing NPT compliance, and seeming to accept the point that “at least partial compliance” is possible irrespective of whether or not one has followed the “13 steps.” Nevertheless, Dan clearly means to follow today’s diplomatic conventional wisdom and invest the “steps” with legal import.

This is, to my eye, a weak argument. It’s a shame to have to mention it here, for I dealt with this in my 2007 essay and in his book Dan fails to address the argument I made there. He wants the “13 steps” to constitute a “subsequent agreement” on how to interpret NPT within the meaning of Article 31(3) of the Vienna Convention on the Law of Treaties, but he offers no evidence that the drafters of the “steps” or indeed of any RevCon document ever understood themselves to be preparing such a thing. Certainly the “steps” themselves feature no language suggesting they are intended to have this kind of (or any) legal import, and indeed in many cases they are phrased in ways that would make compliance well-nigh unassessable anyway. (Bolding and Underlining Added. DJ)

However, this new ILC report seems to adopt very much my way of looking at this subject, and specifically cites to my book to demonstrate the point. So I can’t help but feel a bit validated.

ILC Second Report Subsequent Practice and Agreement Treaty Interpretation

Is the NPT Customary International Law?: A Question Central to the Marshall Islands ICJ Case

I was just reading Avner Cohen’s recent piece on the Marshall Islands case over at the BAS website. In it Cohen writes:

The lawsuit reflects a growing belief among international legal and policy experts (as well as some diplomats) that the time has come for the NPT to be treated—due to its near universal adherence—as part of customary international law by which all states must abide, regardless of whether or not they actually signed the treaty.

Based on this reasoning, the Marshall Islands asks the International Court of Justice to rule that all nine nuclear states are in material breach of their legal obligation to disarm under international law, regardless of their status under the NPT. Currently the international community does not consider the NPT to be part of international customary law; if it were, the treaty would have a legal status similar to that of the international bans on slavery or torture. Should the International Court of Justice make such a ruling, it could elevate the discourse on nuclear disarmament from vague declarations of intentions to stark statements of legally binding commitment.

Cohen is certainly right to identify the question of whether the NPT, or at least Article VI of the NPT, is part of customary international law, as a central question in the Marshall Islands (RMI) case. It is the argument on which the entirety of the RMI’s case against those of the nine potential respondents who are not parties to the NPT, rests. But I thought I would try to provide some clarity to Cohen’s discussion of this question.

The question of whether the NPT, in whole or in part, has entered into customary law is one that has been knocking around in international legal discourse for a long time. I’ve talked with colleagues at conferences about the subject for many years, though as far as I know there has not yet been a focused treatment published on this question. I know some people over the years have told me they were working on one, but I have yet to see it in print. If there is such a treatment out there, I would be happy to have attention drawn to it in the comments.

Generally speaking, broadly-subscribed-to treaties, such as the NPT, are fertile ground for potentially finding that a process sometimes referred to as parallel customary law creation has occurred. This simply means that, even if the principles codified in the treaty were not, prior to codification, a part of customary international law, the very fact of their codification, and even more importantly the subsequent implementation of these principles by states parties, under the (quite correct) impression that these principles are legally obligatory upon them, satisfies the two elements of state practice and opinio juris that together turn a principle into a rule of customary international law.

This phenomenon is quite common in the international legal system. Examples include principles of the 1977 Additional Protocols to the Geneva Conventions on the Law of Armed Conflict, principles of the 1969 Vienna Convention on the Law of Treaties, and principles of the 1982 UN Law of the Sea Convention. In each of these contexts, states who are not parties to the treaties themselves, have recognized that, while the treaty per se is not binding on them, some of the principles codified in the treaty have, through parallel state practice and opinio juris, become rules of customary international law which are binding on them through that separate source of international law.

These examples are also illustrative of another characteristic of parallel customary law, which is that customary law development parallel to a treaty is not an all-or-nothing proposition. In each of the examples cited above, it is only some of the principles codified in the treaty that are considered to have entered into the corpus of customary international law. Not necessarily all of them. This is why, for example, the ICRC’s study on customary law in the law of armed conflict is so important – it is a rigorous analysis of which of the principles codified in the Geneva Conventions and their Additional Protocols have entered into CIL. And that study found that the substance and definitions of the obligations as between the treaty and CIL differs significantly.

So let’s now come back to the NPT. In my 2009 book I wrote that the NPT had not, at least in toto, entered into customary international law, unlike the CWC and the BWC:

On a normative development level as well, the contract treaty nature of the NPT has not given the elements of customary law creation clear universal principles to attach to, in order to enable the creation of parallel custom, unlike in the cases of the Chemical Weapons Convention (CWC) and the Biological Weapons Convention (BWC), to be discussed in detail below. Such parallel customary law in the cases of these other multilateral nonproliferation treaties constitutes an important supplemental source of legal obligation through which even non-parties, and particularly secondary proliferators of WMD technologies, may be bound to the terms of the cornerstone international legal instruments.

I still think that this analysis is correct. However, there are some articles of the NPT that are worded in such a way as to comprise universal obligations upon all states parties to the treaty, notwithstanding they are a part of the treaty’s quid pro quo structure of obligations. The most important of these are Articles IV & VI of the treaty.

As I’ve already explained, there is no problem legally with having individual articles or provisions of a treaty pass into customary international law, even if the entirety of the treaty in which they are found does not. So the question I think becomes, is there sufficient evidence of state practice and opinio juris to support the conclusion that either or both Article IV or Article VI have become principles of customary international law?

Focusing on Article VI, as that is the operative provision in the Marshall Islands case, this basically becomes an empirical question. The tests for state practice and opinio juris are well expressed and defined in international legal sources, and what is needed is a focused study evaluating state practice, and inferences about the sense of legal obligation under which states have taken that action, in order to answer the question of whether the principles in Article VI have indeed been established as customary law. If they have been, then this hugely strengthens the RMI’s case against the four non-NPT parties in the cases.

As I said above, I have not personally conducted such an empirical study. I don’t know if anyone has. If they have, I would invite them to come forward and enlighten us!

But I will give my own sense, which is admittedly anecdotal and qualitative at this point, just from viewing the landscape of state practice and opinio juris on this question through statements made at NPT PrepComs and RevCons, etc. for some time now.

I would conclude that there are indeed a sufficient number of states who consider the obligation in Article VI of the NPT to be a binding legal obligation, and who have acted in conformity with that opinio juris, over a sufficient amount of time, with sufficient consistency, in order to establish the Article VI obligation as an obligation of customary international law, in addition to its codification in the NPT.

It must be remembered that perfect universal conformity with a rule, or recognition of the rule as binding, is not necessary for customary law to form. As the ICJ itself said in the 1986 Nicaragua case:

It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs….the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.

So the fact that there are among the NWS especially, states that do not view the Article VI obligation to in fact be a binding legal obligation, does not per se mean that it is not a binding obligation, nor that it has not entered into customary law. Looking to statements of the Non-Aligned Movement, which represents a supermajority of states, as well as to the 2010 NPT Review Conference Final Document, as I did in some detail in my 2011 book, I think there is ample evidence of opinio juris to support the conclusion that the Article VI obligation is a part of customary international law, even if the NPT in its entirety is not.

This is obviously going to be a highly contentious part of the RMI’s case, particularly against India and Pakistan, who as I wrote previously are two of the only three states (along with the UK) over whom the ICJ likely does have jurisdiction to proceed with this case.

North Korea Makes Progress on NW Miniaturization (UPDATED)

This report from the South Korean news outlet Chosunilbo:

The Defense Ministry here claimed Wednesday that the North appears to have improved its capacity to miniaturize nuclear warheads so they can be fitted on to missiles.

The nuclear payload needs to be reduced to less than 1,000 kg and the diameter to less than 90 cm to fit on a missile.

The ministry based its claim on assessment from South Korean and U.S. intelligence services.

“The North has reduced the nuclear payload to about 1,500 kg, but not less than 1,000 kg, which means that its nuclear weapons aren’t warfare-ready yet,” a ministry spokesman said. “But we presume that the North’s three previous nuclear tests have enabled it to improve technology to increase nuclear yield and make the payload smaller.”

Technical people can chime in about whether the measurements and numbers are accurate. But if this is accurate, it is alarming and troubling. I’ve written many times on this site about how I think the threat the US (as well of course as the threat to South Korea and Japan) faces from North Korea’s nuclear ambitions and general nuttiness, far outstrips whatever potential threat the US may one day possibly face if Iran maybe possibly produces a nuclear weapon.

But in terms of general concern by the US government, and “doing something” about the North Korean nuclear threat, I don’t see a whole lot happening. Certainly there’s less attention being paid to it by the US administration and by Congress than is paid to the Iran issue. I think this is a seriously misplaced emphasis, and I hope we don’t pay a price for it.

As I said in a piece last year:

I often criticize US officials when they say that Iran’s possession of a nuclear weapon is unacceptable. Of course, in the case of NK we are way beyond that point now. NK has nuclear weapons, we know that. And we know they have long range missiles capable, or nearly capable, of reaching the US. It is only a matter of time before they progress development of both, and put the two together to have a weapon capable of striking both Japan and the US.  Also unlike the Iranian case, I have no confidence – zero – in the rationality and prudence of decisionmaking by NK officials. I think they are incredibly unpredictable, and are just genuinely nuts. This regime possessing nuclear weapons capable of striking Japan or the US is, in my opinion, absolutely unacceptable.

What do I mean by that? I’m still trying to think it through. I know what an ugly mess it would be to actually engage in military force against North Korea to forcibly disarm it of its nuclear weapons stockpile, and stop its development programs. I know the proximity of Seoul, and the presence of thousands of US troops around the DMZ. My uncle and his family live in Seoul. So it’s not something that I would want done unless absolutely necessary. I’m not a military planner, so I don’t know exactly how it would all work out. But I’m sure there are no good options for such a campaign.

But on the other hand, I do not want to live in a world in which North Korea has nuclear weapons deliverable at its psychotic whim against the US. Again, this isn’t Iraq 2003. This isn’t Iran 2013. This is a country that we know has nuclear weapons, and that we know is closing in on the capacity to deliver them against the US. And the rhetoric, whether to be believed 100% or not, is just not something I think we can ignore.

Where, then, is the “red line” here? Where is the point at which it will be necessary for the US and South Korea to take the extreme step of preemptively attacking North Korea? I don’t know, but I think it’s coming soon.  And if/when it does, I think it will be both legal under international law, and morally justifiable. I agree with Julian Ku’s legal analysis generally, and while of course the principles of the jus in bello would have to additionally be met (most importantly proportionality and discrimination), I think North Korea presents the strongest case we have ever seen for the satisfaction of the Caroline criteria for anticipatory self-defense in the jus ad bellum. In this case I unfortunately see few other realistic options.

UPDATE: Friend of ACL and actual nuclear weapons expert Bob Kelley wrote a piece in Jane’s a few months ago that takes a different view of the NK miniaturization issue, and importantly sounds a note of caution about exaggerating claims on the basis of few known facts concerning the NK NW program. I’ll attach his article below. I’ll defer to Bob’s technical assessment any day.

Bob Kelley on NK NW Miniaturization

I Take it Back. The Multilateral Treaty Exception Won’t Work for India and Pakistan, Because the RMI is Arguing Their Breach on the Basis of CIL, Not the Treaty

Excellent points made by a commenter to my last post. So please belay/ignore my last post.

India and Pakistan May Successfully Argue Lack of the ICJ’s Jurisdiction in the Marshall Islands Case

I was just reading over India’s and Pakistan’s respective declarations recognizing the compulsory jurisdiction of the ICJ. You can find them here and here.

In both documents, there is an express exception to jurisdiction, relating to disputes concerning multilateral treaties, which of course includes the NPT.

In India’s declaration this exception is expressed as applying to:

disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction

In Pakistan’s declaration the exception is slightly different:

Disputes arising under a multilateral treaty unless

i) all parties to the treaty affected by the decision are also parties to the case before the Court, or
ii) the Government of Pakistan specially agree to jurisdiction; and provided further, that this Declaration shall remain in force till such time as notice may be given to terminate it.

You could try to draw some semantic distinctions between them, but ultimately I think they are saying the same thing, which is that India and Pakistan respectively, only consent to be a party in a case before the ICJ involving a dispute concerning a multilateral treaty, when all the other parties to the multilateral treaty are also parties to the case.

Assuming that is the correct interpretation of this jurisdictional exception, then India and Pakistan can probably persuasively argue that the ICJ cannot exercise jurisdiction over the suits brought against them by the Marshall Islands. That would leave the UK as the only state that would have to concede ICJ jurisdiction over the case against it, unless the FCO has some trick up its sleeve that I don’t know about! You can read the UK’s declaration here. I don’t see any similarly helpful exceptions to jurisdiction.

Marshall Islands Brings Lawsuits Against All Nine Nuclear Weapons Possessing States in the International Court of Justice!!!

Wow!!!  I just learned about this this morning. Apparently the cases were filed this morning with the ICJ. See the Guardian news story here.  Here then are the legal documents themselves that have been filed, both in the ICJ and in US Federal Court.

I’m still looking through the documents, but it appears that the RMI has brought suit against all five NPT NWS, plus India, Pakistan, Israel, and North Korea, basically arguing that they are in violation of the NPT Article VI obligation to disarm. With regard to the non-NPT parties (India, Pakistan, Israel, NK) the memorials argue that the obligation in Article VI has passed into customary international law and is thus binding on all states. Wow.

I’m sure there will be much more to say about all this – I’ve been a bit blindsided by it. But at first blush, I would note a couple of things about the jurisdiction of the ICJ.

Of the states who are respondents in these actions at the ICJ only three of them – the U.K., Pakistan, and India – have accepted the compulsory jurisdiction of the ICJ. That means that the cases against the U.K., Pakistan, and India should be able to go forward procedurally.  For all of the other states, including the U.S., for the ICJ to be able to exercise jurisdiction, the respondent state will have to give its ad hoc consent for the case to go forward. I’d say there’s just about zero chance that this will happen in any of the other actions.  So at least on my first read through of the materials, it would appear that the three viable cases before the ICJ are the cases against the U.K., Pakistan, and India.

That’s all I’ll say for now. More to come!!

Visit to Farley Nuclear power Plant

Yesterday I was privileged to visit Plant Farley, a nuclear power plant located near Dothan in south Alabama. The plant staff arranged for an extremely interesting and informational tour for us, and were very gracious hosts.

This was my first time actually visiting a nuclear power plant, and it helped alot to see the technology in action. Farley is a two-unit Westinghouse pressurized water reactor, so the most common type of reactor employed in the US. I got to talk to several of the operating staff and engineers and learned alot. It brought together, and filled some gaps in, all of the stuff I’ve read about nuclear power plants. It was thrilling to see the various parts of the complex in person – the cooling towers, the turbines, the control room, the diesel backup generators, the dry cask storage units for spent fuel. And they had useful models of a fuel assembly and the reactor core.

Part of the tour was the replica control room, an exact model of the actual control room used for training of operators. Here’s a picture of me “tripping” the reactor (at the direction of supervisor Randy Odom). As soon as I flipped the switch, the LED lights (above my hand) indicating the position of the control rods inside the core came down withing three seconds, indicating the control rods descending in between the fuel rods in the core and stopping the fission reaction. A really neat experience.

A Resolution of the PMD Issue?

Could this report, being prepared by Iran, constitute the beginning of the resolution of the PMD issue regarding Iran’s nuclear program? As this piece reports:

Iran said on Monday it was drafting a comprehensive account of its nuclear activities, but did not indicate whether this would be made available to help the final diplomatic push to resolve a decade-old dispute with the West over the program.

The move could meet Western demands for greater transparency to address concerns that Iran may have been trying to develop a nuclear weapons capability, but Behrouz Kamalvandi, spokesman for Iran’s atomic energy agency, made no mention of this.

“There are various files on our atomic program, but we’re lacking a comprehensive document, which we are writing now,” the official IRNA news agency quoted Kamalvandi as saying.

Could the motivation for compiling this report be to then present it to the IAEA, in order to constitute Iran’s formal answer to the IAEA’s queries about past possible military dimensions to Iran’s nuclear program? As I’ve noted before, there seems to be a welcome air of pragmatism in some circles about de-emphasizing the PMD issue, and facilitating its resolution, as part of a comprehensive deal between Iran and the P5+1/IAEA.

The production of this report by Iran may be the first coordinated movement in that kabuki play, after which the IAEA and the West will, after some respectable time spent reviewing it, and possibly in concert with an additional coordinated inspection or two inside Iran, possibly at Parchin, declare that the report by Iran satisfactorily answers the IAEA questions. This then would be an extremely important step towards both sides being able to move past the PMD issue while saving face. The IAEA and UNSC demanded answers. Iran gave the answers. There was in the end no military dimension determined. Case closed.

Along with a resolution of the other facets of the negotiations – e.g. importantly the recent progress being made on the Arak issue – this could pave the way for the UNSC to pass a new resolution supplanting its prior resolutions and lifting its order that Iran cease uranium enrichment, and further and most importantly, lifting its sanctions on Iran.

Another Nail in the Coffin of the NPT

. . . is what this would be if it was actually adopted as policy by the NSG. I’m talking about a Dutch paper, sponsored by the US, UK and the Czech Republic, and submitted to the NSG meeting a couple of weeks ago, which proposed that the NSG take a more “open-minded approach aimed at cooperation with non-NSG members and promoting transparency of the NSG guidelines.” According to our favorite nuclear reporter Fredrik Dahl:

The discussion paper, seen by Reuters, outlined different types of “possible benefits the NSG could consider granting” a country that is adhering to its trade guidelines even though it is not in the secretive 48-nation grouping.

These could include sharing of information, access to NSG meetings and “facilitated export arrangements”, suggesting possible access to some nuclear trade with NSG countries, for example related to safety.

Currently, Israel is the only non-NSG country that fulfils the criteria regarding “adherence” to its guidelines although India and Pakistan have informally indicated that they also follow them, the Dutch Foreign Ministry document said.

So, under this new and improved approach, India, Pakistan and Israel, at least, would likely be promoted to receiving most if not all of the substantive benefits of membership in the NPT – including most importantly civilian nuclear trade with NSG supplier states. So we would go from one travesty – the India exemption already granted by the NSG in 2005 – to at least three and maybe more.

Again, these would be states that have not signed the NPT, but have clandestinely developed nuclear weapons stockpiles on their own. And under this proposal, they would be granted by NSG supplier states, nuclear trade access which the 157 NNWS parties to the NPT had to give up their legal privilege to possess nuclear weapons in order to secure.

Is this a game of how far can we push NPT NNWS before they will finally be convinced that the NPT grand bargain is dead, and that they are upholding their NPT obligations and tacitly consenting to a system of nuclear apartheid for nothing?

This isn’t how Mark Hibbs sees it. Mark seems to think this is a fine idea. In the article he’s quoted as follows:

Nuclear expert Mark Hibbs said such an acknowledgement by the NSG would be important for Israel. “It would be a recognition from a very important nuclear non-proliferation related body that Israel is a responsible nuclear state,” Hibbs, of the Carnegie Endowment think-tank, said.

That’s not the point, Mark. Responsible or not, you can’t undermine one part of the grand bargain of the NPT without expecting the other parts to fall down too.