Some Thoughts on Article VI NPT and its Customary Nature

I’m very pleased to host a guest post by Dr. Daniel Rietiker. See his bio details following.

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Some Thoughts on Article VI NPT and its Customary Nature

Daniel Rietiker

Dan Joyner was kind enough to allow me to react to some of the arguments which have been invoked in the interesting and useful debate on the pending applications introduced at the ICJ by the Marshall Islands in respect of Article VI NPT. These applications raise important and difficult questions of public international law and the stakes are obviously very high. One of the main issues will be whether Article VI NPT is of a customary nature. The answer to the question is crucial for the admissibility of the applications against India, Israel, Pakistan and the DPRK, which are all non-States Parties to the NPT and with respect to which the applicant invoked customary international law in the sense of Article 38 § 1 b) of the Statute of the ICJ. I am offering hereby my rather intuitional reactions which would necessitate further deepening:
First of all, it is appropriate to reiterate the exact scope of the duty imposed on States deriving from the – presumed – customary rule and to define the nature of the obligation at stake. I suggest that the starting point for this assessment must be the text itself of Article VI NPT:
“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective international control.”
From the outset, it transpires from this clause that the duty of the States, nuclear weapon States (NWS) as well as non-nuclear weapon States (NNWS), is the obligation to negotiate in good faith with a view to the effective realization of the three goals mentioned in Article VI. Narrowly construed, it is limited to a mere obligation of conduct, more generously interpreted, it entails an obligation to reach actual agreement. This latter approach was adopted by the ICJ in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (para. 99). However, such agreement has unfortunately not been reached yet.
From my point of view, and contrary to what has been suggested by previous comments, it does in principle not matter, for the crystallization of a customary norm in the sense of Article VI NPT, whether the NWS have actually got rid of all their nuclear weapons or not, but rather whether the States Parties, NWS and NNWS, agree that their duty to negotiate in good faith in view of a world without nuclear weapons still exists. This assessment will be the difficult task of the Court. From my point of view, there is clear evidence that, in spite of the rather clouded record of disarmament performance, the ultimate objective of general and complete disarmament, including nuclear disarmament, has never been given up. I have exposed the reasons in favor of this affirmation more in detail in an upcoming article (“The meaning of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons: Analysis in the light of treaty interpretation according to the VCLT”, in: Black-Branch/Fleck (eds), Nuclear Non-Proliferation in International Law, Vol. I, TMCC Asser Press, July 2014). A couple of elements shall just be mentioned here: The most recent multilateral treaties dealing with nuclear weapons, in particular the CTBT, ratified by over 160 States including France, the UK and Russia, all NWS, expressly confirm the objective of general and complete disarmament in their preambles (para. 4 of the preamble of the CTBT). Moreover, preambular paragraph 2 of the 2006 Semipalatinsk Treaty on a Nuclear-Weapon-Free-Zone in Central Asia contains the same commitment. From my point of view, it is significant in this regard that only some weeks ago, on 6 May 2014, all the five NWS as defined by the NPT, have signed the Protocol to the Semipalatinsk Treaty, through which they accept the nuclear-weapon-free status of this region. The second preambular paragraph of this Protocol could hardly be more explicit: “The Parties to this Protocol…convinced of the need to take all steps in achieving the ultimate goal of a world entirely free of nuclear weapons and that all States are obliged to contribute to that end…”
Moreover, the message delivered in Prague in spring 2009 by Barack Obama, the Head of State of another nuclear power, was very clear, too. Furthermore, in a very recent Resolution, the UNGA affirmed the ultimate goal of general and complete disarmament by 169 to one vote (DPRK), with 14 abstentions (Resolution 68/51 of 5 December 2013, “United action towards the total elimination of nuclear weapons”).
In addition, let me briefly react to Marco Roscini, who suggests that the 1996 Advisory Opinion was clear insofar as the ICJ stated that the obligation under Article VI NPT only concerned the 182 States Parties (para. 100). First, I wonder whether it is appropriate to take this Advisory Opinion, which was delivered 18 years ago, as a starting point, especially since it did not deal, strictly speaking, with disarmament. Second, if we take this Opinion as the basis for our discussion, I would suggest a very different interpretation, recalling that, in the operative part, the ICJ, unanimously found that “[t]here 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.” (2 F.) It seems to me that this operative paragraph, in which the Court did not at all refer to Article VI NPT, is a clear expression of the fact that also non-States Parties are bound by this duty.
This affirmation is furthermore confirmed by the Court’s statement according to which “virtually the whole of this [international] community moreover appears to have been involved when resolutions of the United Nations General Assembly concerning nuclear disarmament have repeatedly been unanimously adopted.” The Court continued by adding that “[i]ndeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all States.” (para. 100).
This paragraph deserves our attention insofar as it suggests that, through the adoption of almost unanimous UNGA resolutions, the international community has reiterated, throughout the years, the goal of general and complete disarmament (see, for instance, Resolution 68/51 of 5 December 2013, cited above). From my point of view, these resolutions are very important tools to establish the opinion juris, the legal conviction of the States that the main goal, a world without nuclear weapons, still exists today. Indeed, in the same opinion, the ICJ observed that UNSC resolutions may sometimes have normative value and that they can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinion juris. (par. 70). I would not be surprised if the Court, in the current cases, would rely on such resolutions, including the voting results, in order to establish whether the duty deriving from Article VI NPT is of customary international law. This approach has the considerable advantage of relying on written documents (the adopted resolutions) and is, thus, easier and more precise than the analysis of unwritten, voluminous and often contradictory State practice. A resolution expresses the opinio juris of the international community and thus replaces, to a large extent, the troublesome analysis of the question whether State practice (which States exactly?) is coherent, constant and uniform enough (G. Abi-Saab, in his general course of international law at the Hague Academy of International Law, 1987, refers in this respect to “wise” custom, compared to the traditional, “wild” custom). This is even more important considering the nature of the duty under Article VI, which is a positive obligation to negotiate in good faith with a view of achieving the goals aimed at. In this kind of situation, the question whether or not the States have fulfilled their duty is obviously more difficult to measure than in the case of a “negative obligation”, consisting, for instance, in the obligation not to transfer or acquire nuclear weapons etc.
A last set of observations concerns the question whose practice has to be taken into consideration for the establishment of a customary international rule? This aspect is closely linked to the question whether Article VI NPT binds also non-States Parties, dealt with above. Marco Roscini suggests that the “specially affected” States have to be represented, a principle that goes in fact back to the ICJ’s judgment in the 1969 North Sea Continental Shelf Case (para. 74). I agree with Dan that the situation it that case, where a group of certain States, namely those possessing a continental shelf (or at least one whose delimitation poses problems), is hardly comparably with the duties stemming from Article VI NPT, a virtually universal treaty whose ultimate goal is general and complete disarmament, including nuclear disarmament. In my humble opinion, it would also be too simplistic to define the NWS as “specially affected” States; on the contrary, it could be argued that the NNWS have a special interest in nuclear disarmament (the French version of the judgment in the North Sea Continental Shelf case is possibly more precise, using “Etats particulièrement intéressés).
Moreover, it derives from the travaux préparatoires to the VCLT (YBILC 1957 II 53 § 126) as well as from the ILC’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts that disarmament obligations are generally considered to be “interdependent” obligations. Generally speaking, an essential breach of such an obligation would confer to all the other States Parties, including the “specially affected” ones but not exclusively, the right to invoke the wrongful act and request its reparation. By the same token, they are considered to be of an ergo omnes partes nature (see, in particular, Article 42 b) ii), and the ILC’s Commentary to the Articles on State Responsibility, p. 296).
To sum up, I suggest that, before discussing the question whether Article VI NPT is of customary nature, it is necessary to define the precise duty imposed on States by a presumed customary rule flowing from this provision. Moreover, I am of the opinion that there are solid reasons to believe that even the NWS, including the few non-States Parties to the NPT, are still convinced that the ultimate goal of the NPT and other arms control instruments is general and complete disarmament, including the elimination of all nuclear weapons. As a consequence, the duty deriving from Article VI NPT, thanks to its customary nature, would also apply to those respondent States in the pending applications before the ICJ that have not ratified the NPT. The characteristic feature of customary international law is that, contrary to treaties, it binds also States which have not expressly agreed to it or have not actively participated in its creation. As a result, if States such as India, Israel, Pakistan and the DPRK do not provide – the difficult – evidence that they are “persistent objectors” in the sense of the Anglo-Norwegian Fisheries case (the only case, as far as I know, where this concept has been admitted by the ICJ for universal customary law, the Asylum case having concerned regional custom), the ICJ could rely, in the current cases, on the customary norm stemming from Article VI NPT in respect of these States. Finally, it has been demonstrated above that, for the establishment of the opinio juris among States, the UNGA resolutions, including the voting results, constitute a particularly useful and inviting tool.
(Daniel Rietiker, PhD, Lecturer in international law, University of Lausanne, Swiss Member of the ILA’s International Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law and, currently, Visiting Fellow at the Human Rights Program of Harvard Law School)

Arms Control Law Matters!

I was just reading Mark Hibbs’ most recent piece over at Arms Control Wonk, on the shift in strategy over the PMD issue in negotiations between the P5+1/IAEA and Iran. His post is here: http://hibbs.armscontrolwonk.com/archive/2775/the-t-word-and-the-iran-negotiations

At one point, Hibbs makes this observation:

“Over the last half-year, I have asked officials from countries negotiating with Iran about the apparent shift on this issue. There are long answers (some of which are couched in legalese about what people think the IAEA’s legal mandate is and isn’t) but the exceedingly short answer is something like “That was then, and this is now,” because in 2014 Iran is at the table and in 2011 it wasn’t.”

I find it very gratifying to hear that government officials are seriously considering the arms control law issues that we discuss here at ACL. This specific issue of the legal authority of the IAEA is one that I’ve written alot about here, and it’s good to see that it is getting traction among those participating in the negotiations.

Sometimes you wonder if the things you write are making any difference in the world. But I’d like to think that this answer Hibbs has gotten to his question indicates that some of the things I’ve written here are being read by influential people, and that they are being influenced by those ideas. At least that’s what I’m going to take away from it!

New Piece on Albright’s “Independence” by Gareth Porter

I’m out of town on a family road trip at the moment, but I just quickly wanted to make sure everyone saw Gareth Porter’s new piece on David Albright. See it here:

http://truth-out.org/news/item/24169-leading-alarmist-on-iran-ignored-what-he-knew-was-true

It’s pissing off establishment types like Jeffrey Lewis, so you know it must be good.

On the alleged customary nature of Article VI of the NPT – A Rejoinder to Joyner and Zanders

Both Dan and Jean-Pascal offer excellent counterarguments in their replies to my blog post on the customary nature of Article VI, and I thank them for this.

After thinking carefully about their comments, I would like to offer some further thoughts.

1) I think that there is no obstacle in principle for a single provision within a treaty to be taken in isolation to establish whether it has become customary international law. The severability of treaty provisions finds support in the Vienna Convention on the Law of Treaties and has been upheld, for instance, in the ICJ Nicaragua Judgment, where the Court examined whether Articles 2(4) and 51 of the Charter reflected customary international law. We could even say that we should sometimes look at whether individual paragraphs within a provision are customary: again, in the Nicaragua case, the ICJ concluded that only the first sentence of Article 51 was a reflection of customary international law but not the second, ie the duty to report the armed reaction in self-defence to the Security Council. True, Article VI is linked to the other pillars of the NPT and is part of that Grand Bargain. But we shouldn’t forget that customary international law has a life of its own, independent from the treaty from which it may have originated: therefore, nothing prevents that only certain provisions of the NPT may have become customary but not others, even though, in the treaty where they were originally contained, they were intended as a package deal.

2) Like Jean-Pascal, I am not sure that the Chemical Weapons Convention is an appropriate analogy with the NPT. Indeed, as Jean-Pascal says, the difference between the NPT and the CWC is that the latter doesn’t distinguish between haves and have-nots. But an even more important difference is that virtually all states parties (and non-parties as well) agree that the use and possession of chemical weapons is unlawful: those states that are suspected of possessing or using them don’t count as contrary practice, as they don’t argue that such situations are lawful, rather they normally deny possession or use (Syria docet) or argue that the chemicals used don’t fall within the definition of the prohibited weapons, therefore confirming the prohibitory rule.

3) Dan is of course correct to say that Article VI formally addresses all NPT states parties. I still think, however, that this provision ‘specially’ affects only those states that possess nuclear weapons, as their position is necessarily different from that of non-nuclear weapon states. The fact that Article VI was what the NNWS asked to the NWS in return for their giving up the right to possess nuclear weapons (as Dan rightly states) demonstrates that this provision was specifically aimed at the NWS. In my view, it’s also impossible for the NNWS to engage in the relevant conduct, ie to give up weapons they don’t possess: they could engage if they acquired nuclear weapons, but that would confirm my argument, ie that the provision only specially affects states once they possess nuclear weapons.

4) I agree with Jean-Pascal that the customary nature of a provision or of a whole treaty doesn’t necessarily depend on how many states have ratified that treaty. Rather, it depends on the attitude of the states not parties in relation to that treaty. I also agree with Sergei Batsanov when he says in his comment to my initial post that we also have to take into account the practice of the several NNWS that accept nuclear weapons on their territory and of those that benefit of the nuclear deterrence umbrella. This practice by NNWS seems to imply an opinio that is difficult to reconcile with the customary nature of Article VI, ie it’s based on the acceptance that certain states may possess nuclear weapons.

To conclude. While I would in principle agree that Article VI, as a treaty provision, may have been breached by the NWS (although doubts about the normativity of this provision remain), I am still not sure that, at this stage, it reflects customary international law. The empirical study wisely advocated by Dan would have to provide evidence of consistent practice and opinio juris in that sense by a sufficiently representative majority of states, including the majority of the specially affected states (as per the North Sea Continental Shelf Judgment).

The 2013 IAEA Director General’s Safeguards Implementation Report

I recently received a copy of the 2013 IAEA SIR from a diplomat who provided it in the interests of promoting transparency regarding IAEA matters. The IAEA Board of Governors will be meeting today in Vienna to consider it. I will attach the entire report to a link at the end of this post, in the interest of transparency and to facilitate scrutiny of the report by independent analysts.

I’ll make a few preliminary points that have arisen from my read over it. And then I’ll welcome others’ comments and analysis.

1. The IAEA’s use of intelligence information provided by third-party-states for purposes of safeguards assessment.

Looking through this newest comprehensive report provided by the IAEA DG to the BOG on the subject of safeguards implementation and assessment, I do not see any meaningful discussion of how the IAEA receives, handles internally, authenticates, interrogates, and in general treats intelligence information that it receives from national intelligence agencies, and then uses in its assessment of safeguards compliance by safeguarded states. We know that the IAEA has used such intelligence in its safeguards assessments, including in the infamous November 2011 report by the IAEA chronicling allegations of PMD in Iran. See Mark Hibbs’ piece on this phenomenon here. But we have never seen, and in this newest report still do not see, any transparency on this issue, or explanation as to why the IAEA should be considered capable of handling and using this foreign-source intelligence in a credible manner.

As it has become clear that the IAEA has adopted this practice, in particular under DG Amano, I think that the Agency must explain transparently how it handles this information, including how such intelligence is authenticated, and what internal resources – along with their intelligence credentials – are involved in this process, before the Agency can credibly use such intelligence in safeguards assessments.

2. Safeguards Standards

Look at paragraphs 17-18 in the “Deriving conclusions” section. The Agency states here that “[T]he conclusion in the Safeguards Statement for a State with a comprehensive safeguards agreement alone relates only to the non-diversion of declared nuclear material from peaceful activities.” In the sometimes confusing array of legal standards the Agency says it uses when discussing safeguards assessment, they actually got this one right. This is the standard I have argued is correct, see, e.g., my post here.

But then, after reciting the correct standard, when they move on to discussing specific cases of states that do only have a CSA in place, the application is confused and erroneous. Look on ages 7-8. When reviewing Syria, the conclusion in paragraph 28 says this:

Based on the evaluation of information provided by Syria and other safeguards relevant information available to it, the Agency found no indication of the diversion of declared nuclear material from peaceful activities. For 2013, the Agency concluded for Syria that declared nuclear material remained in peaceful activities.

The same conclusion is drawn for a bunch of other similarly situated states in paragraph 29.

Now look at the conclusion for Iran in paragraph 25:

While the Agency continued throughout 2013 to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, the Agency was not in a position to provide credible assurance about the absence of undeclared nuclear material and activities in Iran and, therefore, was unable to conclude that all nuclear material in Iran was in peaceful activities.

See the difference? In Iran’s case they don’t just talk about declared fissile material, as they say themselves that they should back in paragraphs 17-18, but rather go on to talk about undeclared material and activities. This is what they have done now for a long time with Iran, and it was the precise issue that I criticized in previous posts. See here and here.

As I’ve explained in those posts, because Iran has only a CSA in effect, the IAEA has no authority to look beyond the declaration Iran has made pursuant to its CSA, and to assess Iran’s safeguards compliance using a standard that includes undeclared materials and activities.

The fact that the IAEA continues to do so regardless – and even contrary to its own avowed standard for assessment – I think demonstrates an intention to purposefully mislead both the BOG and international observers generally, about the status of Iran’s compliance with its safeguards obligations.

The DG drops a footnote (FN 18) to paragraph 25, in which a weak reference is made to the UN Security Council. But see my post here explaining why UNSC resolutions do not give any additional authority to the IAEA with regard to investigation or assessment of Iran’s safeguards compliance.

3. Agency Expenditures on the DPRK

Look at Table 7 (pages 49-53). It says there that the Agency spent EUR 1,441,000 on safeguards in the DPRK (page 50). However, on page 1, footnote 1, of the report, it says that the Agency did not implement safeguards in the DPRK. So, how was this 1.4 million euros spent?? A good question for member states to ask the DG’s office, I’d say.

IAEA 2013 SIR

Can Five Treaty Violators and Two Non-Parties Keep a Treaty Rule from Becoming Custom?: A Reply to Roscini

As always, Marco has provided thoughtful analysis and a strong argument in his most recent blog post on whether NPT Article VI has entered into the corpus of customary international law. Following up on my own earlier post on this subject, I would like to provide a brief collegial counterpoint to Marco’s analysis. And I would note in starting that I think the debate in which we are engaged here mirrors the debate that will indeed be had among the parties to the Marshall Islands ICJ cases, assuming they reach the merits phase.

Marco notes in particular the principle of “specially affected” states and their role in the formation of customary law. I think he has expressed that principle perfectly correctly, and I take no issue with its existence and relevance to the formation of a rule of CIL.

I would, however, offer a counterpoint to the proposition that this principle should be applied to the facts of the situation under current consideration in the precise way in which Marco has posited.

The first point I would make is regarding the question of who, in the specific context of NPT Article VI, are the states “specially affected” by this treaty rule? I think it’s important to bear in mind that the rule in Article VI cannot be viewed in isolation, even for purposes of customary law formation. Article VI is an integral part of the NPT’s Grand Bargain structure of quid pro quo obligations. This package deal in its entirety is the reason that the NPT exists at all – without it, many non-nuclear weapon states would never have agreed to join the NPT. Therefore, I think in the specific context of the NPT, there is a strong argument to be made that all NPT parties are equally “specially affected” by the rule in Article VI.

It should be noted that Article VI by its own terms is made applicable to “Each of the Parties to the Treaty,” and not only to the five Nuclear Weapon States. Marco rightly notes that “Specially affected states are those that had the opportunity to engage in the relevant practice.” I agree with that definition, and I think that because of it, the principle of “specially affected” states in CIL formation is best reserved for those areas of international relations in which only some states have the capacity to engage in the relevant conduct – e.g. landlocked states in the context of the law of the sea. But in the context of NPT Article VI, is it correct to say that only the NWS have/had the opportunity or capacity to engage in the relevant practice, which is nuclear disarmament? I would answer that question in the negative.

As I noted in another recent post, there are a number of cases of states who have engaged in nuclear weapons development programs, and who have at some point, for varying reasons, ceased those programs. In a number of those cases, a major motivating factor was that the states in question wanted to join the NPT, and knew that they could not do so unless they ceased their nuclear weapons programs. It was not a lack of capacity or opportunity to construct nuclear weapons that kept many of these states from doing so, but rather a variety of political and circumstantial reasons leading to their decision to stop their active programs. And since they joined the NPT, many of those states have joined in statements signifying their understanding of NPT Article VI as being legally binding.

Further, there are a number of other states who have never, to the best of my knowledge, seriously engaged in nuclear weaponization programs, but who undoubtedly have the capacity to do so if they so chose. And they have chosen not to do so at least in part because of the strictures of the NPT, inclusive of Article VI. So again, simply because only five states within the NPT regime, and four states outside of it, have chosen to possess nuclear weapons and not to disarm themselves of them, does not mean that these are the only states that have had an opportunity or capacity to do so. Rather, in the case of the five NWS, their choice not to disarm merely constitutes treaty breach on their part, and should not be counted to their credit in keeping the rule in Article VI from becoming CIL.

I would offer as a perhaps imperfect but I think persuasive analogy the case of the Chemical Weapons Convention. I may be wrong, but I doubt that many would argue that the CWC rule prohibiting possession of chemical weapons has not entered into the corpus of customary law, at least since the establishment of the CWC in 1997. However, while by far most states parties to the CWC have or are in the process of disarming themselves of their CW stockpiles, there are still states, both CWC parties and non-parties, who possess or are suspected of possessing CW. Would we say that these CW possessing states both inside and outside of the CWC are states “specially affected” by the prohibition of CW because of this possession, and that they therefore should have a disproportionate influence on the creation of a parallel rule of CIL? I don’t think so. I think we would say simply that state practice and opinio juris do not have to be universal for a rule of CIL to develop, and that in this case there is a supermajority of states who do manifest these elements, and that therefore those that do not are nevertheless bound by the rule which has developed thereby. And furthermore that those within the CWC that possess CW in contravention of the treaty’s terms are merely in violation of the treaty.

As I said in my previous post on this topic, in order to truly establish whether NPT Article VI has indeed entered into parallel customary international law, a rigorous empirical study would need to be made of state practice and opinio juris on this matter, which to my knowledge has not yet been made. Only after conducting such a study, looking at the state practice and opinio juris of both NPT parties and non-NPT parties, could any real conclusions be drawn about whether Article VI has persuasively been established as a rule of custom (BTW I titled this post as I did because I’m not sure one can make heads or tails of either Israel’s or North Korea’s opinio juris regarding nuclear disarmament. Israel doesn’t like to talk about the NPT, and North Korea is, well, nuts).

However, I do think that when that study is done, the points I have made about the possible application of the principle of “specially affected” states should be borne in mind. Again, I would argue that in the specific case of NPT Article VI, this principle is not properly applicable as a principle hindering the creation of parallel customary law.

Wolfthsal on Uncovering Iran’s Nuclear Past

I was just reading a new piece by Jon Wolfsthal in the National Interest entitled “Uncovering Iran’s Nuclear Past: Where to Start? Where to Stop?” Overall I think this piece is part of a welcome movement of pragmatism regarding the PMD issue in Iran. However, I was struck by this passage in the piece, which I think does express a common view in DC policymaking circles:

Iran has yet to provide adequate answers to most of these questions, in part because it continues to publicly deny it ever pursued nuclear weapons. This, in the minds of officials, experts and long-time observers is proof that Iran harbors long-term nuclear weapon ambitions and cannot be trusted to implement any new agreement.

I don’t see the logical connection between these two assertions: 1) Iran doesnt want to talk about nuclear weaponization research and development activities that may have gone on in the increasingly distant past in Iran; and 2) that means Iran wants to build nuclear weapons in the future.

As I’ve been researching my new book, I’ve been surprised by just how many states have at some point since the end of World War II pursued nuclear weapons programs, to varying degrees of development, and then have at some point stopped them.  At this link you can find a really interesting and useful brief run-down of some of these programs.

Each case is of course different, but on the whole I think you could make a few generalizations about them.  In by far most of these cases, state officials in later years were not keen to talk about the former programs, and definitely would not have welcomed attempts by other states or international organizations to pry into that history, and force them to “come clean” about all the details concerning them. Also, in by far most of these cases, once the nuclear weapons program was stopped, it remained stopped, at least in an active, development sense. A number of these states now possess mature civilian nuclear energy programs, and are advanced industrial states with defense industries, and therefore have all the necessary capabilities to seriously re-start a nuclear weapons program if they chose to do so. But again, they have not.

So I would say that overall, history does not support the connection that Wolfsthal makes in this piece, and that I think underlies efforts to pressure Iran to make an accounting of its past nuclear weaponization R&D.

Edited Collection on the NPT

This new publication of an edited collection of chapters was brought to my attention today.  It’s entitled The Nuclear Nonproliferation Regime at a Crossroads, and it’s edited by Emily Landau and Azriel Bermant.  I mostly wanted to draw attention to it because ACL’s own Jean-Pascal Zanders has a very good chapter in it on “Verifying the Prohibition on Chemical Weapons: The Relevance of OPCW Processes to the IAEA.”

I read over a number of the pieces quickly today. There are some very interesting and thought provoking pieces in Parts I & II of the collection.

Then there is a typically erroneous and frustrating piece by Olli Heinonen discussing IAEA safeguards in Part IV. A classic example of someone who is not a lawyer, but who appears to be supremely confident that he can interpret and apply international law in absolute and conclusory terms, basically because he worked around safeguards for years. Essentially the same thing as me going into a hospital and trying to treat patients because I’ve been around human bodies for years.

Anyway, then Jean-Pascal’s piece is of course very good and usefully instructive on lessons regarding verification that can be learned from the CWC regime.

Anyway, like with any edited collection, read the good stuff and skip over the bad stuff.