One often reads complaints by Iranian officials, and by the Iranian public, that the U.S. is not complying with the commitments it undertook in the JCPOA to ease economic sanctions on Iran in exchange for Iran’s compliance with its JCPOA commitments to limit its nuclear program. This got me wondering whether this is in fact the case.
As far as I can tell, the U.S. has in fact complied with all of its specifically delineated sanctions-lifting commitments that are due for compliance at the present stage of the JCPOA’s schedule. This explanatory document released by the U.S. Treasury provides a detailed review of the specific sanctions-lifting actions the U.S. has taken, and their relationship to the JCPOA. I haven’t seen any commentator seriously call into question this recitation of what the U.S. government has done, nor have I seen any persuasive allegations that the U.S. has not complied with the letter of its commitments under the JCPOA to this point.
Rather, what seems to be at the root of the complaints by Iranian officials and the Iranian public is disappointment caused by an earlier excess of expectations about the economic benefits that would flow from the JCPOA’s commitments of sanctions relief, and about how quickly those benefits would be realized.
As others have explained, the reasons why the economic benefits of the JCPOA’s sanctions relief commitments have to this point been disappointingly slim are manifold and complex. First, the JCPOA sanctions commitments only required the U.S. to remove sanctions that were specifically related to Iran’s nuclear program, leaving in place a complex legal architecture of primary and secondary economic and financial sanctions targeting Iran based on U.S. concerns about human rights in Iran, and Iran’s connection to terrorist groups. These remaining sanctions have, by many accounts, significantly deterred foreign investment and commerce with Iran, due to fears particularly by non-U.S. banks that they will inadvertently run afoul of this byzantine web of continuing sanctions, and face stiff financial penalties. Second, Iran’s economy is notoriously opaque and riddled with corruption. This creates an environment of business risk that is simply unattractive to many foreign companies.
These and other factors have combined to produce only modest economic benefits for Iran over the past six months since the lifting of sanctions, which has in turn made the initial excitement and optimism about the JCPOA in Iran fade significantly.
Tyler Cullis has written extensively on the issue of U.S. sanctions on Iran post-JCPOA, including detailed analysis of the most recent developments, and possibilities for narrowing the gap between commitments and expectations. I recommend his work to readers.
So what are we to make of the gap between Iranian expectation and commitment reality with regard to sanctions relief in the JCPOA? Were Iranian negotiators bamboozled by their U.S. counterparts into thinking that the sanctions relief commitments the U.S. was undertaking would lead to an economic windfall for Iran? I doubt it. I’m confident that the Iranian negotiators were sophisticated enough to know exactly what they had bargained for, and understood the limited nature of the economic benefits that would flow to Iran, particularly during the early months following the lifting of sanctions. I suspect that, just like the negotiators from the P5+1, the Iranian negotiators knew they were not going to get everything they wanted out of the JCPOA. That’s the nature of compromise.
But I also suspect that the Iranian negotiators understood that with the lifting of U.N. Security Council sanctions and European Union sanctions, also provided for under the JCPOA, doors would be opened that were not previously open to foreign investment and commerce with Iran, and that even under the pall of continuing U.S. sanctions, eventually businesses in Europe and Asia would become confident enough to take their first furtive steps back into the potentially hugely lucrative Iranian economy. And that as ever when there is sufficient economic incentive, creative minds would devise financial means to facilitate these transactions.
For those of us who want the JCPOA to be successful and to remain adhered to by all of its parties, the hope now must be that the understandable disappointment felt by Iranians can be tempered by a more realistic, cautiously optimistic patience, and that it does not translate into political loss for President Rouhani and his moderate allies in the 2017 Iranian Presidential election.
And please God don’t let Donald Trump be elected President here.
I’m very pleased to announce a new initiative here at Arms Control Law. I’ve been planning this for some time and have finally gotten things going. The idea is a podcast series – yes, I know everyone is doing podcasts. But this one is devoted to discussions/interviews with scholars and practitioners in the arms control law area.
Most of the discussions will feature scholars working on new projects – articles or books, and the podcast will be a way for the author to briefly introduce the subject of the work to the ACL audience through a 30 minute or so discussion with me and with my co-host Professor Jack Beard from the University of Nebraska College of Law. Jack was a long-time practitioner of arms control law in the U.S. government, and is now a prolific arms control law scholar. He is also the chair of the International Law Association American Branch’s Use of Force Law Committee, which is co-sponsoring this podcast series.
I’m hoping that this podcast series will provide a new vehicle for disseminating quality arms control law scholarship, as well as discussions on current topics in the field, in a medium that can be listened to anywhere – in the car, at the gym, etc.
We’re going to kick off the series with a discussion of one of Jack’s own recent papers, entitled “Soft Law’s Failure on the Horizon: The International Code of Conduct for Outer Space Activities.” This article has been accepted for publication in the University of Pennsylvania Journal of International Law. You can find the paper here on SSRN. It’s an extremely timely critique of the E.U’s Code of Conduct in this area, and includes some really interesting questions about international legal sources, i.e. the role of soft law in the arms control area. Listeners should feel free to post comments and questions about the podcast.
Readers will likely have read media reports today summarizing the IAEA’s latest official report on Iran’s compliance with the JCPOA and Security Council Resolution 2231, which was presented to the IAEA Board of Governors today. A full copy of the IAEA report has, fortunately, been provided to ACL in the interests of transparency by a source in Vienna. You can find it at the link below.
The five page report finds that Iran is upholding its commitments under the JCPOA, and has been cooperating with IAEA inspectors. It concludes:
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.
Noticeably absent, of course, is any consideration of whether the other parties to the JCPOA, including particularly the U.S., are abiding by their JCPOA commitments. I think this would actually make for more interesting reading.
I’m actually genuinely asking this. I don’t know the answer. I know Russia has made this accusation repeatedly over the years, and again just in the past few days. Here’s a nice explanation of the issues involved.
But honestly I don’t know a lot about the INF treaty, other than what I could gather through looking at the text itself and a few online articles. The question seems to be one involving some technical determinations about the kinds of missiles and launching systems that the US either has or plans to have at its bases in Eastern Europe. For me to get up to speed and give an answer I would have confidence in would take me a while. So I thought I would just throw the question out to readers who may have actual expertise in this area that they could share. Please either leave a comment, or if you would like to do a guest post, just let me know by email.
Every few months we hear a new claim – and the inevitable follow-up discussions about the believability of that claim – regarding how far North Korea has come in developing a nuclear warhead that can be miniaturized and fitted onto one of their increasingly long-range missiles, and thus used to threaten its regional neighbors, or even the continental United States. The particulars of just where they are right now are less concerning to me than what appears to be a fairly linear progression of advancement in their capabilities, which again appears to make it only a matter of time – and here it seems realistic to talk of months or at the most a handful of years – before they achieve the ability to strike the U.S. with a nuclear tipped missile. And what’s really concerning is that TO THIS DAY I still haven’t heard anyone with a particularly good plan to stop this from happening.
There’s lots of talk of more sanctions, and of returning to negotiations. A good bit of talk about offering greater incentives. Of course all of these things have been tried before with North Korea and don’t seem to have made much of a difference in the trajectory of their progress toward a missile-deliverable nuclear weapon.
Then there’s the idea that at some point China will get tired of tolerating and protecting the increasingly defiant NK leadership and will do . . . something . . . about it. I wish that would happen, but there seems to be an awful lot of guessing and assumptions that go into that reliance, which don’t pat down the concern very much.
I come back to this subject at intervals here at ACL. Some previous posts are here, here, here, and here. I try to stay up to date on at least some of the leading writing on what to do about the North Korean threat. And it just baffles me that there isn’t a concrete plan for stopping the emergence of this capability by North Korea.
In my previous posts I’ve tried to head off any comparison between the North Korean case and the Iran case, on which I’m well known to have taken a different tack entirely. I don’t want to go back through the distinctions again here. If you’re serious, you know what they are.
And again, as I’ve also said before, I’ll put my general non-interventionist bona fides up against anyone’s and expect to come out favorably in the comparison. I am absolutely not some hawk that looks automatically to military force to solve WMD proliferation problems. Quite the opposite.
But sometimes there literally is no other practical option, and the threat is real and credible. And in those circumstances I’ve always been willing to afford states facing the imminent threat of use of nuclear weapons against them, the right to strike in an anticipatory fashion to defeat the threat. This is in my view within the right of self defense accorded to states under international law. Debates about what imminence means in this context are rich, sophisticated and nuanced. But at some point, I think states do have a right to preemptively use military force to degrade threats of use of nuclear weapons against them.
Like so much in international use of force law, practical legality will essentially depend on whether states generally are satisfied that a use of force was reasonable, necessary and proportionate to an intolerable threat, and that all reasonable peaceful means to avoid using military force had been exhausted. For example, Israeli threats to use military force against Iran’s nuclear facilities never met these tests of satisfaction. But I think that at some point, a preemptive military strike by the U.S. Against North Korea would.
Is the U.S. at that point yet with North Korea? I don’t think so. But when will we be? I’d give it months or at the most a handful of years.
I don’t know anyone in the right agencies of the U.S. government to check (not that they’d tell me even if I did) but I’m sure that plans for just such a military contingency are well maintained, they just aren’t spoken about publicly.
I suspect this is, in the end, the concrete plan for stopping North Korea’s nuclear threat to it’s neighbors and to the U.S. It’s just not part of what U.S. officials are ready to talk about yet. I sincerely hope it doesn’t come to this, and that something will change to make it unnecessary.
But if not, I’d rather see this than live with a North Korea capable of launching a nuclear first strike against the United States.
UPDATE: Here’s a link to an article I wrote in 2008 on use of force law in the context of WMD proliferation. I’ve referenced it a couple of times in the comments to this post, and I wanted to make it available to those interested:
I just read this piece over at The National Interest by Tom Sauer, entitled “It’s Time to Outlaw Nuclear Weapons.” It’s probably the best presentation of a coherent and practical scheme for moving forward with the program of nuclear disarmament that I’ve seen.
Sauer argues for the conclusion of a treaty outlawing the possession of nuclear weapons, by those states willing to sign onto such a statement. He estimates that between 120-150 states might be willing to sign onto such a treaty, and accepts that none of the nuclear weapons possessing states would sign onto it.
Sauer is a little bit low on detail about what the Nuclear-Weapons Ban Treaty would actually say, but since he seems to be alluding to the parallel process on the CBW side, I suspect what he means is that the NWBT would simply be a declaration by all states parties that both the use and possession of nuclear weapons are unlawful, and that the parties obligate themselves never to possess or to use them.
This would be the first procedural step, and would create a broadly supported international norm that could then be referenced by civil society activists within nuclear weapons states to try to persuade their governments to embark seriously on efforts to disarm.
The next step would then be to actually get the nuclear weapons states on board to signing a separate treaty, a Nuclear Weapons Convention (NWC) that would do the much more detailed and difficult work of setting an actual schedule and targets for disarmament, much like the Chemical Weapons Convention did.
I like this general presentation of the process going forward because I do think Sauer and others in the humanitarian initiative are right that a NWBT, as described here, could indeed likely be agreed now, and would in fact attract a majority of states to sign on to it. I suspect the nuclear weapons would put a lot of pressure on their allies and client states not to sign it, so I don’t know what the final tally would be. But I think it would be a significant majority of states. And I do think that such a treaty that simply recites the understanding of a majority of states that the possession and use of nuclear weapons is illegal, would be useful not only for the norm internalization purposes that Sauer mentions, but also as an important evidence of both state practice and opinio juris supporting the establishment of a rule of customary international law.
Readers will recall that Marco and I had a good exchange a while ago on the subject of customary international law related to NPT Article VI. See here, here, here, and here. The effectiveness of a NWBT in contributing to the establishment of parallel customary law would involve some of the same issues that we discussed in those exchanges, e.g. Marco’s concern about specially affected states. But in the end, in my opinion, if a supermajority of states manifested state practice and opinio juris supporting this ban, on a subject that I truly think can be argued persuasively to specially affect all states as potentially no other, a rule of customary international law should and would be recognized to come into existence. This rule would then create obligations for all states, including the nuclear weapons possessing states.
Regarding the subsequent NWC, I have to say I’m not very optimistic at all that such a treaty will ever be concluded, at least not in a form comparable to the CWC. I think that nuclear weapon states’ national interests will always prevent them from agreeing to completely disarm. But that doesn’t mean that the preliminary step of concluding a NWBT is without usefulness. Quite the contrary, for all the reasons discussed. And the setting of such an international legal norm, in both treaty and customary law forms, could over time put pressure on nuclear weapons states to at least reduce their stockpiles of nuclear weapons to low numbers, which would make the world a safer place.
(Cross posted from Arms Control Wonk. I was kindly invited to write this piece and post it there by Michael Krepon)
I’m grateful to Michael Krepon for this invitation to contribute to Arms Control Wonk. I have long respected Michael’s work here.
In this piece, I’d like to offer a response of sorts to Justin Anderson’s fine recent piece here at ACW, though I don’t mean it to target his piece alone, but rather the implications of some of the arguments that he and others have made concerning the legality of the use of nuclear weapons.
Gro Nystuen and Kjølv Egeland recently published an excellent piece in Arms Control Today providing a concise yet thorough review of jus ad bellum and jus in bello principles of international law relevant to the possession and use of nuclear weapons. These are principles of law related to the international use of force by states, and to the conduct of forces during armed conflict.
I recommend Nystuen and Egeland’s piece to readers, and I agree with their legal assessment that there does indeed remain a “legal gap,” and not just a compliance gap, identifiable as the absence in general customary law of a complete prohibition on the use and possession of nuclear weapons, as distinguishable from general customary rules that completely prohibit the use and possession of chemical and biological weapons. It is to this legal gap that the currently trending “Humanitarian Pledge,” and the related “Humanitarian Impact of Nuclear Weapons” multinational movement are addressed.
In his piece, Justin Anderson takes issue with one statement in a UN General Assembly resolution that is related to this movement. Essentially, his argument is in agreement with Nystuen and Egeland’s conclusion that there are at least conceivable uses of nuclear weapons that would not manifestly violate the principles of jus ad bellum or jus in bello. This indeed was the realization that prevented the International Court of Justice from being able to decide, in its 1996 advisory opinion, that the use or threat of nuclear weapons was in all cases unlawful. Anderson provides a hypothetical case in which, he contends, the use of nuclear weapons would be lawful:
Should the United States or an ally, for example, face an imminent nuclear attack, the U.S. military might advise the president that preventing the attack would require a rapid strike, launched at a distance, using munitions that would completely disable or destroy – rather than merely degrade – the belligerent forces preparing the attack. These requirements might rule out available conventional options; in this scenario, a U.S. nuclear strike would be a legitimate response due to the military necessity of completely neutralizing the target in order to prevent a catastrophic, mass-casualty attack against the United States or an ally.
Neither I nor, I think, Nystuen and Egeland would disagree with Anderson’s assessment of this hypothetical, so long as the principles of necessity and proportionality in jus ad bellum, and the principles of discrimination and proportionality in jus in bello, were in fact observed in the resulting nuclear strike.
However, while not disagreeing with the idea that there exist theoretical possibilities for the lawful use of nuclear weapons, I do think one has to bear in mind the extremely narrow sets of circumstances where such lawful uses could take place. Take Anderson’s hypothetical above. Yes, this could happen. The chances of its happening are quite remote, however. And what of the other often mentioned hypothetical cases for the lawful use of nuclear weapons, in which all of the principles of jus ad bellum and jus in bello would be satisfied, and in which conventional weapons might under the prevailing circumstances be ineffective – e.g., the enemy submarine out at sea, or the hard and deeply buried enemy bunker in the middle of the desert? Again, while similarly theoretically possible, these scenarios are also similarly unlikely to present themselves in the course of reasonably foreseeable armed conflicts.
The concern that arises is in trying to harmonize the theoretical usefulness of nuclear weapons in these very circumscribed and unlikely cases, with the existing stockpiles of nuclear weapons maintained by nuclear weapon states, and argued by them to be justified on the basis of these potential uses. The disparity is of course most acutely discernible in the cases of the United States and Russia, which each possess over 7,000 nuclear weapons, by far most of which are equipped to deliver strikes of a destructive power that could only conceivably be legally justifiable in the extremely unlikely case that Justin Anderson has described.
Is it reasonable, therefore, to argue that the United States needs 7,000 nuclear weapons, by far most of which could only legally be used in one highly unlikely situation – that of an imminent nuclear weapons launch by another state? This is to say nothing of justifying the cost of maintaining and upgrading these weapons, as Joe Cirincione often usefully reminds us.
One can’t shake the suspicion that when military and other national-security types talk about these narrow hypotheticals in order to defeat arguments that the use of nuclear weapons is always unlawful – and thereby also provide at least political justification for the possession of nuclear weapons – they aren’t really thinking that these are the only occasions when nuclear weapons use might be desirable. Rather, these are just the only uses they want to talk about. And that when push comes to shove, if allowed to maintain and upgrade such excessive nuclear arsenals, and create new platforms for their delivery – including cruise missiles, for example – considerably more situations than these might start to look like nails to a man holding a hammer – a shit-ton of hammers, in fact.
If nuclear weapon states were genuine in their representations that they need their nuclear weapons only for cases where international law would be satisfied by their use, and bearing in mind the cost of maintaining nuclear weapons stockpiles of the size maintained by the U.S. and Russia, surely we would be looking at an empirical reality of nuclear weapons possession much more in line with the “low numbers” that James Acton has compellingly written about.
The fact that we are not faced with a low-numbers reality appears, therefore, to belie arguments by nuclear weapon states that they intend to abide by existing international law in their planned, or at least conceived-of, uses of nuclear weapons.
So while it’s true that current international law does not provide for a general prohibition on the possession and use of nuclear weapons, it does contain obligations for states that significantly limit their options. I’ve written about the disarmament obligation in the NPT, and current nuclear weapon state noncompliance with it, at length elsewhere. These disarmament obligations are currently being pressed, if incompetently, by the Marshall Islands against nuclear weapon states at the International Court of Justice.
With regard to the use of nuclear weapons, we fortunately have not witnessed their use in armed conflict since 1945. So no state could be said to currently be in violation of the rules of jus ad bellum or jus in bello because of such use. However, while legal gaps remain in international law that could conceivably allow for the lawful use of nuclear weapons, the limited scope and likelihood of occurrence of circumstances in which such use would be lawful, when compared to the size and cost of efforts to maintain nuclear weapon state nuclear arsenals, makes nuclear weapon state arguments concerning their intention to abide by those obligations in the future ring a bit hollow.
Iran has on several occasions lately conducted ballistic missile tests. These are simply the latest in Iran’s longstanding efforts in development of its missile programs. I’ve noticed in media reports that both US officials and nonproliferation wonks have been saying that these missile tests violate UN Security Council resolutions. You can see such quotes in these articles – here and here. However this is incorrect.
There are several issues here. First is the Iranian standard rebuttal that none of their missiles are designed to carry nuclear weapons, and that therefore these tests do not run afoul of the precise language in relevant UNSCR’s. This is a technical argument that I’d really rather not wade into because it’s outside my expertise – i.e. when is a missile “designed” to carry a nuclear weapon.
But from a legal perspective, the assertion that Iran’s ballistic missile tests in the months since JCPOA Implementation Day (January 16, 2016) violate UN Security Council resolutions is incorrect because, as of Implementation Day, all UNSCR’s adopted prior to that date regarding Iran are terminated except for Resolution 2231. And the language that Resolution 2231 employs in addressing Iran’s ballistic missile activity is legally nonbinding language. Therefore there is no legal obligation on Iran touching its ballistic missile activity contained in Resolution 2231, and there can thus be no violation of a legal obligation that doesn’t exist. I’ll paste here a section from my forthcoming book explaining this point (exciting that I can do this now!):
In its Resolution 1929, adopted on June 9, 2010, the Security Council imposed a conventional arms embargo on Iran. It further addressed Iran’s ballistic missile program thus:
[The Security Council] Decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology, and that States shall take all necessary measures to prevent the transfer of technology or technical assistance to Iran related to such activities.
Iran’s diplomats argued consistently that the Security Council’s arms embargo and proscriptions on Iran’s ballistic missile programs were unwarranted, and when negotiations began on the JCPOA they argued vigorously that they would not include their missile program on the agenda for negotiation along with their nuclear program. There is therefore nothing in the text of the JCPOA itself on the subject of Iran’s conventional weapons and missile programs. However, in Security Council Resolution 2231, the Council did make some changes to its treatment of these issues.
Annex B of Resolution 2231 provides for the temporary continuation of the international conventional arms embargo on Iran, inclusive of an exception for transfers approved by the Security Council. However, it further provides that the embargo will cease on the date five years from Adoption Day under the JCPOA. This date will be October 18, 2020.
With regard to Iran’s ballistic missile activities, Security Council Resolution 1929’s circumscription of course terminated, along with the Security Council’s other previous resolutions, on Implementation Day, January 16th, 2016. In its place, Security Council Resolution 2231 in Annex B provides the following text:
Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology, until the date eight years after the JCPOA Adoption Day or until the date on which the IAEA submits a report confirming the Broader Conclusion, whichever is earlier.
The substitution of the leading phrase “calls upon” in this text in Resolution 2231 has legal significance, as I explained in Chapter 6. The change to this invitational yet legally nonbinding phrase in Resolution 2231 means that, as of January 16, 2016, Iran is no longer under a legal prohibition regarding its ballistic missile activity from the Security Council. The remaining hortatory expression in Resolution 2231 by its terms expires on October 18, 2023.
So, following JCPOA Implementation Day, Iran’s ballistic missile tests cannot accurately be said to violate UN Security Council resolutions. The most that could be said about them is that they are not in harmony with the UN Security Council’s legally nonbinding exhortation in Resolution 2231. This is not just semantic. The termination of Resolution 1929 on Implementation Day, and its supplantation with Resolution 2231, had many meaningful legal effects. This is one of them.
I’ve now had a chance to review the Marshall Islands’ (RMI) memorial in its ICJ suit against the UK, and the UK’s preliminary objections memorial. Again, you can find these on the ICJ’s website. The juxtaposition of the two memorials is quite instructive.
The RMI’s memorial engages in page upon page of very dramatic and sweeping narrative about the general dangers posed by nuclear weapons. When it finally gets around to talking about the actual facts and law relevant to its case against the UK, the memorial is very weirdly and unclearly organized. The recitation of facts regarding the UK’s history of diplomatic engagement, or lack thereof, with efforts of nuclear disarmament comes first. Then the memorial switches to talking about why there is in fact a dispute in this case. This is followed by a long section addressing the negotiating history of the NPT and its object and purpose. Only at this point does the memorial actually address in a focused way Article VI of the NPT, which is the entire substantive legal basis of the RMI’s case.
Once the memorial does get around to analyzing Article VI, the legal discussion is decent, and brings out the main points of necessary interpretation. But having already discussed the facts and negotiating history at length in previous sections, the legal analysis of Article VI is not then followed by a clearly structured application of the law to the facts of the case, leaving the reader confused at the hodgepodge organization of the whole of the memorial.
Basic principles of professional legal writing and treaty interpretation would have recommended a much more clearly organized presentation, beginning with a rigorous interpretation and exposition of the law in Article VI, read in light of the provision’s context and the treaty’s object and purpose. Only after this exposition should a clearly structured application of law to facts be presented, showing how the respondent has failed to uphold its legal obligations, correctly interpreted.
So yes, what I’m saying is that the RMI’s memorial is shit legal writing.
Substantively, the RMI’s memorial also makes some completely unnecessary and confusing arguments about the erga omnes character of the obligations in NPT Article VI, and about the customary law nature of those obligations – neither of which arguments are at all necessary to make in the context of a respondent state which is without question a party to the NPT.
Turning then to the UK’s preliminary objections memorial, basically this memorial should serve as an instructive foil to the RMI’s legal team, helping them to see what a memorial submitted to the ICJ should look like. The UK’s memorial is well written and well organized. It focuses on the relevant legal questions the court needs to answer at this stage in the proceedings, and presents its legal arguments concisely and clearly, applying well-researched interpretations of law to facts.
I have to say also that substantively, I found the UK’s procedural arguments overall to be highly persuasive. This is particularly the case with regard to the UK’s arguments relative to the parties’ optional clause declarations. I can very easily see the court agreeing with these bases for dismissing the action.
I would take issue, though, with a couple of the UK’s substantive arguments. The first is the argument that the court cannot proceed jurisdictionally with this case against the UK alone as respondent, because the court’s considerations will necessarily implicate the legal interests of other states. I think the court would be perfectly capable in the merits phase of assessing the UK’s individual responsibility for its individual action or inaction in complying with its own individual obligation under NPT Article VI. The fact that Article VI imposes shared obligations on states does not produce a mutual exclusivity with its imposition in parallel of individual obligations on states. As I argued in my 2011 book, Article VI should be read as imposing obligations of effort upon states individually to pursue negotiations, and not as imposing only shared obligations of negotiation and result.
I also disagree with the UK’s argument that this is a case in which the court should withhold an assertion of jurisdiction because it would not be in a position to “render a judgment that is capable of effective application.” The NPT is ongoing in its application as a treaty between the parties to the dispute. The court could, at least in principle, give a declaratory judgment to the effect that the UK is in continuing breach of the NPT. It could also in principle order the UK to take individual efforts that would satisfy its individual obligations under NPT Article VI.
This week the oral arguments of the parties to the three remaining cases brought by the Marshall Islands against nuclear weapons possessing states in the International Court of Justice have finally gotten underway, and with them we now have a chance to also view the written submissions of the parties to this point.
Just to review, the Marshall Islands (RMI) brought suits in the ICJ against all nine nuclear weapons possessing states. However, only the cases against the United Kingdom, India, and Pakistan remain, because those are the only states among the respondent group that have consented to the compulsory jurisdiction of the ICJ. So to be clear, the cases against the U.S, Russia, France, China, Israel and North Korea, have already failed, and indeed never had a chance of succeeding based upon well-known jurisdictional limitations.
Readers will recall that I’ve discussed these cases before and expressed my concern about how they were being handled by the RMI’s legal team. Unfortunately, my concerns are being borne out through the pleadings that the RMI has made thus far.
Taking a look at the RMI’s application initiating proceedings against India, it should first be recalled that India is of course not a party to the NPT. In order for the ICJ to have jurisdiction, therefore, and certainly in order to prevail in the case, the RMI must show that the obligation in Article VI of the NPT has achieved customary international law status, in independent parallel to its existence as a treaty rule.
Readers may recall that Marco Roscini and I had a stimulating (at least to me) debate on this very subject here at ACL a couple of years ago. See here, here, here, and here. Now, compare this discussion to the RMI’s argument in pgs. 18-20 of their application, that NPT Article VI has achieved CIL status. The RMI here presents what is in my view an unforgivably superficial set of sources on which to base their argument on this subject – which again is absolutely vital to both their jurisdictional and merits assertions against India.
Basically what the RMI does is lean heavily on the ICJ’s 1996 advisory opinion, and particularly on one paragraph of the holding of that case, 105(2)(F), where the court states:
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.
This is obviously a partial quotation of the language in NPT Article VI. But the RMI’s lawyers say that, because the court didn’t explicitly restrict this statement to apply only to states parties to the NPT, therefore the court must have been asserting that this obligation has also become enshrined in customary international law.
That is pretty thin gruel.
The ICJ is perfectly capable of saying when it thinks a principle has achieved the status of customary international law, and it does not do so here. And there’s no other wording in the rest of the 1996 advisory opinion persuasively supporting the RMI’s interpretation of this one paragraph of the court’s judgement.
The RMI’s application then talks briefly about General Assembly and Security Council mentions of the NPT Article VI language, but never really gives a solid legal analysis demonstrating that there has been sufficient state practice and opinio juris expressed by states to support the conclusion that the NPT Article VI obligation has passed into parallel customary international law, binding upon India.
Recall that in my discussions with Marco on this subject I actually took a position which agrees in conclusion with what the RMI is arguing here. So my problem is not with their conclusion, but rather with the weak arguments that they have mustered in support of it. Honestly, I find this superficiality unprofessional. It reminds me of the kind of analysis I see in student papers, not in arguments before the ICJ on which the entire case of their client depends. A proper argument would have included a much more serious discussion of the manifestations of state practice and opinio juris that support the RMI’s argument, along with much more rigorous and comprehensive legal arguments, inter alia interrogating and rebutting the sorts of very valid concerns that Marco expressed in his discussion of the subject, including specially affected states.
I guess all I can say is that if the court somehow does allow the RMI’s case to go forward on the basis of a determination that NPT Article VI has achieved customary law status, and is therefore binding on India, it won’t be because of good lawyering on the part of the RMI’s legal team.
The oral arguments against the U.K. are scheduled for today and the RMI’s memorial, along with the UK’s preliminary objection memorial, have just been posted on the court’s webpage. We’ll see if the RMI can do any better against an actual NPT party.
Arms Control Law 