Amicus Memorandum to the Chair of the NW Ban Treaty Negotiating Conference

Readers will know that a U.N. conference has been engaged in negotiating the text of a treaty which will establish a prohibition on the possession and use of nuclear weapons among its parties.  On May 22, 2017 the chair of that conference, Ambassador Elayne Whyte Gomez of Costa Rica, circulated a first draft of the treaty text. You can find that text here.  The draft was the product of negotiations at the first session of the conference in New York from March 27-March 31, 2017.  The second session of the negotiating conference will convene on June 15, 2017 and continue until July 7, 2017, with this draft serving as the basis for further negotiations.

Instead of writing a blog post about the negotiating conference, I decided that I would draft a legal memorandum, addressed to the chair of the conference, in which I provide analysis and recommendations for revision of the draft treaty text.

I have already sent the document to the chair directly.  But I thought I would also post the memorandum openly here, in the hope that it might be circulated to diplomats and NGOs who will be returning soon for the second session of the negotiations. I’ll insert a link to the memorandum below, and would really appreciate it if readers in a position to do so would facilitate that circulation.

This is an important moment in the history of international nuclear nonproliferation law and I would like to be as useful as I can be in helping to shape the final form of the treaty, which I’m confident the conference will successfully adopt.

In sum, I think the draft is good – a good basis to start from. But I also think that there are elements of the draft that need to be revised in order for the treaty to be maximally effective in achieving its purpose, while avoiding the unnecessary creation of legal confusion that could compromise the existing nuclear nonproliferation legal framework.

I really hope that this memorandum will be useful in clearly explaining the reasons for these needed revisions, and that the conference will be persuaded to make them.

Amicus Memorandum

 


Still Alive

Yes, I’m still alive. I actually had the great fortune of working with Jean-Pascal Zanders last week at a workshop on strategic trade controls in Muscat, Oman.  We were there to give advice and assistance to the Government of Oman as they review their domestic strategic trade control laws. As he explained to me, I was the “nukee” on the panel and he was the “cb”.  Below is a picture of us at dinner in Muscat, along with former U.S. Commerce official Scott Bunton.  Anyway, during one of our very enjoyable chats at the British pub located inside the hotel, I mentioned the blog at one point and Jean-Pascal said “yes, although I am the only person writing on it these days.”  And he’s quite right.  He has been invaluable and I have been remiss.

I have been doing a lot of these legal assistance projects lately, as a consultant with the U.S. State Department, and that has taken up a lot of my time and brain capacity.  But there has certainly been no paucity of interesting things going on in the world of arms control law.  Perhaps chief among them has been the renewal of use of chemical weapons by the Assad regime in Syria, and the U.S. missile strike in response to them.  There is no end of sound and fury about that issue going on at other international law blogs, and I’ve been reading it with interest.  I’ll probably write a paper soon with some of my macro observations about such academic debates on use of force law.

The other big arms control law happening is the ongoing negotiations for a nuclear weapons ban convention at the United Nations in New York.  The first set of negotiations was held last month, and they are scheduled to resume in June. I’ve of course been following this news with interest as well.  This piece over at NTI is a very useful summary of the negotiations thus far. The betting seems to be that a text will likely be approved by the scheduled end of negotiations in July. Then the focus will shift to which and how many states actually become parties to the convention, and what legal implications that will have for the NPT and the general nuclear disarmament regime.  I have little doubt that I’ll be doing some writing on that over the next year.

So certainly a lot going on in this area, and my apologies for not being more useful in covering it on the blog. Maybe I’ll start doing better this summer once classes and trips are over.

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U.S. Pressured NATO States to Vote No to the Ban Treaty – Including with Legal Argument

I saw this story originally over at the very useful ICANW website. The story links to a memo sent by the U.S. to NATO states, in which it urges them to vote no on the UNGA First Committee resolution to begin the process of negotiating a nuclear weapons ban treaty.

I found the U.S. memo interesting for lots of reasons, including its review of the provisions that the UNGA’s Open-Ended Working Group (OEWG) has recommended for consideration and possible inclusion in such a ban treaty. The OEWG’s report that is referenced in the U.S. memo can be found here. Skip down to page 19 of the OEWG report to see the list of suggested provisions in Annex II.

It’s probably important to bear in mind that this seems to just be a list of possible provisions to consider when negotiating the structure of the treaty. They aren’t presented in any kind of organized, coherent fashion as they would need to be in a draft treaty text. Some of them seem pretty straightforward. Others, like a provision requiring “national legislation criminalizing support for activities proscribed under the convention,” are very problematic.

I really don’t know how much support each of these suggested provisions has among the states and civil society groups who will be influential in orchestrating proposals for structuring the treaty during the negotiations.

My understanding has been that the plan is to proceed in a two-step treaty making process, as I discussed in this post from earlier this year, reviewing a piece by Tom Sauer. So I was a little surprised to see that the OEWG included among its suggested provisions a section on “phases for elimination,” including “Obligations to eliminate nuclear arsenals within an agreed time frame and in a specific manner . . .”  I thought that the actual elimination of nuclear weapons stockpiles – through agreed schedules, methods, and verification mechanisms – was a subject that was going to be saved for the second step of treaty making, i.e. an actual nuclear weapons convention. And that the initial nuclear ban treaty that will be the subject of the negotiations beginning in March 2017, would really only include fairly general normative provisions prohibiting possession, proliferation and use.

I’m sure there are differences in thinking on these issues of structure and sequencing even among the core nuclear weapons ban movement members. But I hope they are thinking this all through with the help of legal advice.  March is just around the corner, and the U.S. memo to NATO states gives just a taste of the kinds of legal arguments that nuclear weapons states will make in an effort to undermine the effectiveness of a new nuclear ban treaty if it isn’t structured in the right way.

I’m certainly available to advise on these issues is anyone is interested.


Anti-Joyner

This little pearl of a blog post over at Iran Review was brought to my attention today. Its actual title is “Anti-Joyner: Debunking the Misinterpretation of the JCPOA.” In it the author, Kaveh Afrasiabi, who is a political science PhD, argues that I have a pro-U.S. bias and that I’m just parroting the arguments of the U.S. State Department.

I have to say that’s a new one! In all the criticism I’ve received in the past, I’ve never been argued to be a USG shill. In fact it’s usually exactly the opposite.  I think the U.S. government would be just as surprised and amused as I am to hear that allegation! This, to me, just means that Afrasiabi has no idea who I am and probably just assumed that anyone making the argument that the JCPOA is legally non-binding must be acting on behalf of the U.S. government.

Anyway, Afrasiabi goes on to argue at some length that I am incorrect in my determination that Security Council Resolution 2231 did not have the effect of making the JCPOA legally binding on the states parties to it.

As an aside, it never ceases to amaze me how confident non-lawyers often are – particularly in the nonproliferation area – in engaging in international legal analysis on complex legal questions. Do you think these people are just as confident in giving medical diagnoses? Maybe Afrasiabi should take a shift at his local emergency room and give the poor medical doctors a break.

I’m not going to dignify his post any further by serious substantive engagement with it here.

Incidentally, though, in my response to a question posed in the comments to my recent post over at Ejil:Talk I give a basic guide to UNSCR interpretation that Afrasiabi would do well to consult if he wants to understand the errors in his analysis.


The Trump Presidency and the Iran Nuclear Deal: Initial Thoughts

Well it’s been a rough few days here as I and many others in America have gone through the stages of grief following Donald Trump’s victory in the presidential election last Tuesday. I learned about the results as I was walking through Frankfurt airport, on my way back from a week in Amman, Jordan.

The Flight from Frankfurt to Chicago was a very difficult one, as I grappled with the reality through the haze of lack of sleep and disorientation.

Among the many issues that will be affected when Trump assumes the U.S. presidency in January is of course the Iran nuclear issue. Trump famously stated on the campaign trail that “My number one priority is to dismantle the disastrous deal with Iran.”  I don’t actually think this is his number one priority, but nevertheless a President Trump and his foreign policy team will most definitely not be the champions of the JCPOA that President Obama and Secretary of State John Kerry have been.

Of course this all comes as a shock to most of us who work in the nonproliferation area. I genuinely thought that the JCPOA would, under a Hillary Clinton presidency, perhaps not be as positively supported by the U.S. administration as it had been, but that nevertheless the U.S. would seek to keep its commitments under the deal.  And as a side note, I also thought that this meant I probably wouldn’t be writing that much more about the JCPOA, and I welcomed that.

But now we are faced with a new reality and a lot of uncertainty about specifically how Trump and his foreign policy team will treat the JCPOA, as well as whether Republicans in Congress will now – with Trump as president and willing to sign it into law – be successful in imposing new economic sanctions on Iran through statute.

I thought I would just offer a few initial observations and thoughts about the various questions that we now face relative to the JCPOA:

1. I have seen arguments circulating around that because the JCPOA was endorsed by the U.N. Security Council in Resolution 2231, the commitments made in the JCPOA are therefore legally binding obligations under international law, and that President Trump therefore legally cannot withdraw the U.S. from participation in the agreement. This is incorrect. The JCPOA is not a legally binding agreement (i.e. a treaty) under international law. And the hortatory endorsement of its terms in Resolution 2231 does not change that fact. From a legal perspective, President Trump could declare that the U.S. no longer intends to comply with the terms of the JCPOA without incurring the legal responsibility of the United States.  The JCPOA is a set of political commitments undertaken by its parties. It is only the political will of the parties that keeps the agreement together.

2. That being said, some of the JCPOA’s commitments – a number of which have already been implemented by the parties including the U.N. Security Council itself – have legal implications. Iran’s provisional application of the IAEA Additional Protocol, the U.N. Security Council’s removal of its economic and other sanctions on Iran through Resolution 2231, and the removal of unilateral economic sanctions under domestic law by the U.S. and the European Union, have all already occurred as of Implementation Day, as stipulated in the JCPOA. President Trump could unilaterally decide to remove the presidential waivers that have implemented most of the U.S. unilateral sanctions relief. The most extreme legal move the U.S. could make under President Trump would be to trigger the snapback procedure stipulated in Resolution 2231 in order to re-apply the now removed U.N. Security Council sanctions.  Here is a link to my chapter on the JCPOA from my – now even more timely! – recently published book as a reference for reminding readers about what is in the JCPOA.

3. What is President Trump (and by the way you have no idea how much it pains me to write that phrase) likely to do with regard to the JCPOA once he takes office in January? The short answer is that nobody knows. What could he do? Well, he could do a number of things. He could:

A) simply adopt a hostile tone and approach to the JCPOA, stopping any rhetorical and other activities encouraging foreign banks and businesses to engage with Iran, but not formally state the U.S. intention to not comply with the JCPOA going forward;

B) adopt a hostile tone and approach and additionally allow Congress to adopt new non-nuclear economic sanctions on Iran that do not per se violate the letter of the JCPOA, but that undermine its spirit and effects;

C) adopt a hostile tone and approach, and actually abrogate the JCPOA by re-applying the now waived nuclear sanctions through presidential action, in addition to going along with new non-nuclear sanctions by Congress;

D) as the most extreme legal option, adopt a hostile tone and approach, formally abrogate the JCPOA by reapplying nuclear sanctions, allow Congress to apply new non-nuclear sanctions, and initiate the snapback procedure under Resolution 2231 to re-apply the now lifted U.N. Security Council sanctions.

And there are of course a number of other different permutations of these same options.

4. With each one of these courses of conduct by the United States, both the other members of the P5+1, as well as Iran, will face a different reality to what they have faced to this point, and will have to decide how to react .

It seems to me that European states, as well as Russia and China, are likely to maintain their current course of support for the JCPOA and re-engagement with Iran even if the U.S. decides to pursue any of options A-C above.  I don’t think that there is any will to go back to the pre-JCPOA posture of unilateral sanctions on Iran by any of these states, and I expect that the slowly but surely building current of trade deals being made between businesses in these states and Iran are likely to be allowed to continue.

If the U.S. were to re-impose or even strengthen secondary banking sanctions on foreign banks, it’s hard to say if that would have any effect on the pace of re-engagement with Iran by European and Asian businesses, mostly because they’ve already had to find ways to work around unclear U.S. banking sanctions, and haven’t relied on fearful big European banks with strong connections to the U.S.  So even the re-imposition or strengthening of U.S. unilateral sanctions wouldn’t seem likely to seriously change the current dynamics of re-engagement between Iran and other countries.

5. It seems to me that there are only a few scenarios in which the JCPOA, and the essential dynamics of its current implementation, could be seriously threatened. One would be if the U.S. took the ultimate legal step and initiated the snapback procedure to re-impose U.N. Security Council sanctions. These sanctions include prohibitions on trade as well as asset freezes on individuals and entities, and they would be binding on all U.N. member states. That’s not to say that the Security Council sanctions in and of themselves would grind re-engagement to a halt, as they only explicitly cover relatively discrete sectors of trade.  But I think that there would be a significant chilling effect on most all foreign business transactions with Iran which would flow from the re-imposition of Security Council sanctions.

This is to say nothing of the political implications in Iran which would flow from such a step.  It’s hard to predict how the domestic political forces in Iran would react to U.S. action pursuing options A-C above. President Rouhani might, and I stress might, be able to keep conservative groups within the Iranian government from forcing him to withdraw from the JCPOA if the U.S. pursues any of options A-C, although I have serious doubts about his ability to do so in response to option C.  However, I don’t think the moderate forces in Iran would triumph if the U.S. actually forced the re-imposition of U.N. Security Council sanctions under option D. I think that would be too much for conservatives, and in particular Ayatollah Khamenei, to swallow, and that Iran would under that circumstance likely withdraw from the JCPOA and possibly dramatically resume the nuclear work it ceased under the JCPOA’s terms.  I readily confess that I am out of my element of expertise here in trying to guess how the Iranian government, in all of its complexity, would respond to U.S. actions. Perhaps I can get a better informed expert on Iranian politics, like Aniseh Tabrizi or Sanam Vakil, to provide some more insight.

Those are some initial observations. A lot will depend on just how aggressive Trump and his foreign policy team decide to be in their efforts to undermine the JCPOA.

Here’s a picture of me at Petra to brighten my and maybe your spirits.

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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