Safeguards Provisions in the Treaty on the Prohibition of Nuclear Weapons

I’m very pleased to host a guest post by Dr. Eirini Giorgou. I think she does a really excellent job in the piece of explaining the safeguards provisions in the TPNW, and the debates that led to their adoption,  and then responding to a number of criticisms that have been leveled against how these provisions were crafted.  I think this is really exemplary legal work.  I also don’t find anything in it with which I disagree.  So I highly recommend it to readers.

Dr. Giorgou is a legal adviser on weapons law in the International Committee of the Red Cross (ICRC), with experience in multilateral disarmament diplomacy. She was previously Disarmament adviser in the Department of Foreign Affairs and Trade of Ireland. In that capacity she participated in the negotiations on the Treaty on the Prohibition of Nuclear Weapons, including by facilitating negotiations on the Treaty’s Safeguards provisions. Dr Giorgou is a licensed lawyer and holds a PhD in International Law from the University of Geneva, Switzerland.

The views expressed herein are of the author and do not necessarily reflect the position and views of the ICRC or of the Department of Foreign Affairs and Trade of Ireland

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Safeguards Provisions in the Treaty on the Prohibition of Nuclear Weapons

By: Eirini Giorgou

Since its adoption by 122 states on 7 July 2017, the Treaty on the Prohibition of Nuclear Weapons (TPNW) has frequently been made the target of criticism as regards its Safeguards provisions. The following provides an analysis of these clauses as contained in the Treaty’s Articles 3 and 4, outlines the main arguments that have been leveled against the Treaty in this regard, and responds to these.

What does (and what doesn’t) the TPNW have to say on Safeguards – and why.

 To Safeguard or not?

It did not take long for negotiators to agree that Safeguards provisions were necessary and could not be omitted without sending a dangerous political message: that the new Treaty undermined the existing Safeguards regime and that, by creating a loophole, it encouraged states to withdraw from the NPT and from their existing Safeguards obligations. Once the decision to include such provisions was made, negotiating parties were faced with two major difficulties: agreeing on how strict a Safeguards standard they should adopt; and ensuring that this standard would neither undermine the existing IAEA Safeguards regime, nor create an unwanted legal status quo by subordinating the new Treaty to other instruments or international organizations.

Throughout the negotiations, the issue of Safeguards was closely linked to that of the ratification of or accession to the Treaty of states having possessed (at any time after the date set for its adoption, namely 7 July 2017) nuclear weapons. Very soon there was consensus around the fact that the Safeguards standard to be imposed by the TPNW, whatever that was, should be different – and higher – for this category of states, compared to those that had never possessed nuclear weapons, or had eliminated them prior to the cut-off date.

It was therefore agreed that a distinction be drawn clearly between those states who did not possess nuclear weapons after 7 July 2017 and those who did, and that the respective Safeguards rules and obligations be contained in different articles. Hence Article 3 only applies to the first category of states, while Safeguards provisions applicable to the second category are contained in Article 4.

Read the rest of this entry »

ARMS CONTROL LAW PODCAST # 2 : The Treaty on the Prohibition of Nuclear Weapons

Jack Beard and I recently sat down for a discussion about the recently adopted Treaty on the Prohibition of Nuclear Weapons (TPNW), and recorded it as a podcast.  I think the discussion was good, as Jack can fairly be described as a bit of a skeptic about the TPNW, and I can fairly be described as essentially a proponent of the TPNW.  We of course agree on a lot of things, but we were able to tease out some differences too. I hope those of you out in listening land find it interesting. Comments are open.

Listen to the podcast here.

Humanization of Arms Control: Paving the Way for a World free of Nuclear Weapons (Routledge, 2017) – A short book presentation

The following is a guest post by my friend Daniel Rietiker, who is a Lecturer at the University of Lausanne.  It provides an review of his newly published book.

I think the issue of international human rights law and its application to the possession and potential use of nuclear weapons is worth discussing, so I welcome Daniel’s new book. I personally have some reservations about the scope of the application of human rights law to these subjects. And I’ll maybe post a comment or two in that vein, and encourage others to comment as well. But first, I welcome Daniel’s guest post. DJ

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Humanization of Arms Control: Paving the Way for a World free of Nuclear Weapons (Routledge, 2017) – A short book presentation

BY: Daniel Rietiker

1. Introductory remarks

The new book takes a new approach to arms control, by placing the victim of the relevant weapons at the centre of attention. It consists of two main parts. The first one is devoted to conventions dealing with weapons others than nuclear weapons (CWC, Ottawa Convention on anti-personnel mines and Oslo Convention on cluster munitions, and ATT). It is divided into three parts, namely the preparatory history of the relevant treaties, in particular the role played by civil society, the contribution of the relevant treaties to the protection of the human being and the implementation and verification of the treaties by human rights actors and institutions. The first part concludes that, within those treaties, the human-based approach is well established.

The question remains whether the same can be said for the field of nuclear weapons – question dealt with in the second part of the book. This part follows a similar structure to the first one. One of the main purposes of this part is to demonstrate the illegality of nuclear weapons under humanitarian and human rights law.

In this short presentation, I will concentrate on only one aspect of the book, namely the relevance of human rights to nuclear weapons, in particular to their actual use. I devoted quite a substantive part of my book to this aspect since I always had the impression that human rights law, contrary to humanitarian law, had been neglected in the doctrine of international law in respect of nuclear weapons, in spite of its advantages, which I will mention further below.

Moreover, the book distinguishes between the rights of direct victims of use of nuclear weapons attack, on the one hand, and those who are not directly exposed to such an attack, but suffer from the consequences of ionizing radiation, often years and decades later. Those consequences concern basically all nuclear activities, including the production of nuclear energy (and waste management), uranium mining and the scenario of nuclear accidents, as well as testing of nuclear weapons. In my book, I illustrate the example of a regional nuclear war, for instance between India and Pakistan, and I analyze its global human rights impact in terms of health, environment, climate and development.

In the present summary, however, I will for practical reasons limit my considerations to the direct victims of an attached launched by nuclear weapons.

The relevance of human rights to nuclear weapons has very recently been acknowledged officially, namely through the adoption of the new Treaty on the prohibition of nuclear weapons, in New York on 7^th July 2017. Indeed, on several paragraphs, this treaty refers explicitly to human rights; first of all, in its preamble, where it states that:

“The States Parties to this Treaty (…) Reaffirming the need for all States at all times to comply with applicable  international law, including international humanitarian law and international human rights law” (§ 8 of the preamble).

Moreover, its Article 6 deals with “victim assistance and environmental remediation” and, apart from explicit references to human rights law, there are many other uses of language, such as “victims” of nuclear weapons, including “hibakusha”, that are closely linked to human rights violations.

In brief, the new treaty prohibiting nuclear weapons confirms the close link between human rights law and nuclear weapons and related activities, in particular testing of nuclear weapons.

1. The added value of human rights law in the nuclear age

What is the relevance of human rights law and what makes it worth being analyzed in the nuclear field? I only mention three of many more aspects that I have discussed in my book.

First of all, human rights law is applicable in all circumstances, contrary, inter alia, to international humanitarian law that only applies in times of armed conflict. It is true that all major human rights instruments contain clauses allowing to derogate from certain rights in times of emergency. Those derogations clauses have only rarely been used (recently by Turkey and France applying Article 15 of the ECHR), contain significant substantive and formal conditions that have to be met and, moreover, do not apply to particularly important rights, in particular the right not to be subject to torture, inhuman or degrading treatment.

Second, the particular nature of certain human rights has to be stressed. Certain fundamental rules of human rights law have to date attained customary law status and, therefore, apply also to States that have not ratified the relevant treaties. Moreover, the normative supremacy of certain norms of international law has to be stressed too. They belong to the peremptory norms of international law or norms of jus cogens in the sense of Articles 53 and 64 of the VCLT. For instance, if we take the example of the prohibition of genocide, one of the undisputed norms of jus cogens, it means that a genocide could not justify a counter-genocide. Also the prohibition of torture, inhuman and degrading treatment falls under this definition, which is of relevance for nuclear weapons, as will be shown below.

Third, there is also recognition, in international human rights law, of certain groups of victims that are particularly vulnerable, for instance indigenous peoples, children and women. Certain instruments, treaties as well as non binding declarations, have been adopted specifically for their protection, such as the or the UN Declaration on the rights of indigenous peoples (2007),  the UN Convention on the rights of the child, or the UN Convention on the Elimination of Discrimination against Women (CEDAW). Interestingly, the TPNW also refers to such groups, namely in paragraphs 4 and 7 of the preambular.

1. Most relevant human rights for victims of direct attacks by nuclear weapons
2. The right to life

The most obvious human right when talking about the use of nuclear weapons is the right to life. The ICJ, in its 1996 Advisory Opinion on the Legality of Use and Threat of Nuclear Weapons, confirmed the applicability of the right to life (Article 6 ICCPR) in time of armed conflict and, moreover, observed that the test of what is an “arbitrary deprivation of life” has to be determined in light of international law governing armed conflict, in particular humanitarian law (ICJ Reports 1996, § 25).

It is interesting that, contrary to the ICCPR (Article 4 and 6), within the ECHR, the right to life can be derogated from, in particular for “deaths resulting from lawful acts of war.” (Article 15 § 2). From my point of view, such a derogation would not be relevant in the case of use of nuclear weapons since its effects are so devastating, disproportionate and indiscriminate that the damage and harm caused to civil populations would be unacceptable and illegal under international humanitarian law. Therefore, the acts of war would not be “lawful”.

The ECtHR had to deal with cases introduced by relatives of civilians who died during combat operations against rebel groups. In order to ensure that the use of force was no more than “absolutely necessary”, the test under Article 2 ECHR, the Court examined whether the planning of the operation was such as to “avoid” or at least “minimise deaths”. In a case against Russia concerning air operations against rebels during the Second Chechen War, the ECtHR concluded that there had been a violation of the right to life, in particular for having exceeded what was necessary in the concrete situation:

“180. … the Court may be prepared to accept that the Russian authorities had no choice other than to carry out aerial strikes in order to be able to take over Urus-Martan, and that their actions were in pursuit of the aim set out in paragraph 2 (a) of Article 2 of the Convention, as alleged by the Government. It is, however, not convinced, having regard to the materials at its disposal, that the necessary degree of care was exercised in preparing the operation of 19 October 1999 in such a way as to avoid or minimise, to the greatest extent possible, the risk of a loss of life, both for the persons at whom the measures were directed and for civilians” (Khamzayev and Others v. Russia, no. 1503/02).

In this case, the Russian operation resulted in 6 deaths, 16 injuries, and 13 houses destroyed, caused by the use of high-explosive fragmentation bombs of caliber 250-270 kg. These weapons were considered “indiscriminate weapons” by the Court, which concluded that the use of such bombs in inhabited areas was “manifestly disproportionate” to the aim of dislodging the extremists (§ 189).

In light of this jurisprudence, the large number of deaths likely to be caused by a nuclear explosion would not meet the high standards of the ECHR and the ICCPR regarding the right to life. In light of the uncontrollable effects of a nuclear weapons use and the numerous victims, it seems impossible to administer the proof that sufficient precaution had been taken to “avoid or minimize” incidental loss of life.

Moreover, the presence of radiation after an attack would also hamper the ability to search for, rescue, and care for wounded, which could amount to further violations of the right to life. Indeed, recent studies have shown that one of the aspects that make nuclear weapons so special and fatal is the fact that no adequate rescue and medical response is possible due to the complete destruction of infrastructure, the death of medical personnel, and the long-lasting radioactivity rendering access to the are very difficult. In my book, I have mentioned several cases decided by the ECtHR that may illustrate the positive duties after a life-threatening incident in the aftermath of a nuclear explosion.

Finally, one ongoing aspect on the right to life is noteworthy: The UN Human Rights Committee (HRC), the body implementing the ICCPR, after having already issued two so-called General Comments (GC) on the right to life referring explicitly to the danger of nuclear weapons, has started its considerations of a new GC no. 36 on the right to life some year ago. For the time being, a second draft has been adopted for further consideration. Contrary to the first draft, this draft contains quite a useful paragraph on nuclear weapons (without references):

“13. The [threat] or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate in effect and can destroy human life on a catastrophic scale, is incompatible with respect for the right to life and may amount to a crime under international law. States parties must take all necessary measures to stop the proliferation of weapons of mass destruction, including measures to prevent their acquisition by non-state actors, to refrain from developing, producing, testing, stockpiling and using them, and to destroy existing stockpiles, all in accordance with their international obligations. They must also respect their international obligations to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective international control  [and to afford adequate reparation to victims whose right to life has been adversely affected by the testing or use of weapons of mass destruction]. ”

2. Other “civil” rights affected by the use of nuclear weapons

In order to fall within the ambit of Article 3 ECHR, ill-treatment must attain a certain minimum level of severity (so-called “threshold-theory”). Once this level is reached, the ECtHR usually determines which of the three categories of treatments is involved (torture, inhuman or degrading treatment).

In my book, I argue that the use of nuclear weapons could amount at least to “degrading treatment”, since it deprives the victims of their basic dignity. The standard formula developed and applied by the Court for this level is treatment “such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them” (see for instance Kudla v. Poland [Grand Chamber], 26 Occtober 2000, § 92).

For the reasons indicated in my book, I also suggest that the use of nuclear weapons could amount to “inhuman” treatment, and maybe even to “torture”.

It is also noteworthy that, in the case of Selçuk  and Sker v. Turkey, the ECtHR held that there was “inhuman” treatment when, as a part of a security operation, the security forces destroyed the elderly applicants’ home and property in a contemptuous manner and in their presence, without regard to their safety or welfare, depriving them of their livelihood and shelter and causing them great distress (in particular § 77). It is obvious that the destruction of one’s home by a nuclear blast is very likely to have a similar effect and could amount, on its own, to a breach of Article 3 ECHR.

Essentially for the same reason, namely destruction of homes and property, a nuclear attack would affect the victims’ right to respect for private life and home (in Europe, Article 8 ECHR) as well as the right to property (Article 1 of Protocol 1 to the ECHR). These rights are less protected than the values under Article 2 or Article 3, since they can be restricted and derogated from under Article 15 ECHR.

I have to stress that the rights chosen for the sake of this summary is only a selection. In my book, I draw the conclusion that, in the end of the day, the use of a nuclear weapon would certainly constitute the total denial of all basic human rights.

3. Economic, social and cultural rights, considered with special regard to vulnerable groups of people

The rights of victims of use of nuclear weapons have also to be assessed in light of economic, social and cultural rights, which are likely to be breached by such an attack. In the book, the relevance of the following rights, in the context of nuclear weapons, is assessed: the right to development and the right not to be discriminated against, the rights to the highest standard of health and to a healthy environment, as well as the right to an adequate standard of living, in particular the rights to food and to water.

Concrete examples are, in particular, the cases decided by the ECtHR in environmental matters, including the right to water, a more recent human right that, for the reasons indicated in my book, are very relevant in the nuclear field.

The particular vulnerability of certain groups of people deserves special attention in the context of economic, social and cultural rights. The victimization of women and children also raises the topic of rights of future generations, in light of the fact, for instance, that after Chernobyl, many children were born with congenital deformations and considering that the latency period for many types of cancers is 25-30 years. As mentioned in the introductory part, the particular vulnerability of women, children and indigenous peoples is explicitly recognized in the TPNW.

1. Concluding remarks

In light what precedes, it can be summarized that human rights are applicable in armed conflict and impose significant limits to the use of nuclear weapons, together with international humanitarian law. Moreover, human rights law has important advantages compared to humanitarian law, for instance the fact that certain rights cannot derived from under any circumstances. It is also worth repeating that a human rights approach to nuclear weapons has to be done in the broad sense, including the relevant civil rights as well as economic, social and cultural rights.

I am glad that the TPNW was adopted so quickly last summer, since it constitutes a kind of “blessing” of the suggestions and ideas that I made in my book. It is obvious, for me, that human rights have penetrated into the nuclear weapons field at latest in July 2017. The opposite seems, by the way, also to be more and more the case, recalling the example of the HRC, a human rights body, adopting a new GC on the right to live where it explicitly refers to the danger and risk of nuclear weapons.

The Treaty on the Prohibition of Nuclear Weapons

(Cross posted from EJIL:Talk!)

On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50^th ratification.

The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance.

The essential obligations of the TPNW for any state that becomes a party thereto, are listed in Article 1, which provides as follows:

Each State Party undertakes never under any circumstances to:

(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;

(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;

(c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;

(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;

(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;

(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;

(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.

The TPNW is the ultimate product of two main trends in international relations that, to the surprise of many observers, came together successfully within just the past few years. The first trend is the longstanding frustration of most of the states parties to the NPT with the noncompliance of nuclear-weapon-possessing states with the NPT’s disarmament provisions, located in Article VI.

The second, and more recent trend, is what has been dubbed the humanitarian initiative; an effort that took shape in 2012, and that brought together more than 150 states and myriad civil society groups to focus on the unacceptable harm to human life, health, and environment that would be caused by any use of nuclear weapons.

These two trends coalesced in August, 2016 at a special United Nations working group on nuclear disarmament, held in Geneva. This working group recommended the negotiation of a treaty comprehensively banning nuclear weapons. That Autumn, the First Committee of the General Assembly adopted a resolution approving the mandate for such a conference, leading to the December 16, 2016 General Assembly resolution.

Noticeably absent throughout the negotiations on the TPNW – including in General Assembly debates, the formal treaty negotiation sessions, and the voting on the final treaty text – have been all nine states known to possess nuclear weapons (the United States, the United Kingdom, France, China, Russia, Israel, India, Pakistan, and North Korea). These states, and a number of others, boycotted the negotiating process entirely. As Niki Haley, the U.S. Ambassador to the United Nations, explained: “In this day and time we can’t honestly say that we can protect our people by allowing the bad actors to have [nuclear weapons] and those of us that are good, trying to keep peace and safety, not to have them.” Similarly, the British Ambassador to the United Nations, Matthew Rycroft has stated: “The UK is not attending the negotiations on a treaty to prohibit nuclear weapons because we do not believe that those negotiations will lead to effective progress on global nuclear disarmament.”

Notwithstanding the non-participation of the nuclear-weapons-possessing states, the states negotiating the TPNW have expressed the view that the possession and potential use of nuclear weapons is an existential threat to humanity, and one that cannot be ignored simply because the few states that possess nuclear weapons are not yet ready to take meaningful steps to disarm themselves. They also see the TPNW as an important normative statement, by a supermajority of the states in the world, that the development, possession and use of nuclear weapons is immoral and must be prohibited, just as other weapons of mass destruction including chemical and biological weapons have been the subject of comprehensive prohibition treaties. And some states have expressed hope that this normative statement might contribute to the development of parallel customary international law.

Critics of the treaty, however, contend that without the participation and buy-in of the nuclear weapons states, the TPNW is little more than an idealistic statement of disapproval by states that do not themselves possess nuclear weapons. They argue that the TPNW will not be effective in convincing states that possess nuclear weapons to disarm, and that it may in fact do harm to the existing legal framework governing nuclear weapons proliferation, by undermining the centrality of the NPT as the nearly-universally-subscribed-to cornerstone of the regime.

The hope of states supporting the TPNW is that the treaty will constitute a normative nucleus around which efforts may be made by both states parties and international civil society to persuade nuclear-weapons-possessing states to join the treaty. The issue of verification of a former nuclear armed state’s implementation of the treaty’s disarmament provisions, once it becomes a party to the treaty, was one of the issues subject to heavy negotiation. The resulting provisions of Article 4 of the TPNW allow for former nuclear-weapons-possessing states to join the treaty as parties either after they have fully disarmed, or while still in possession of nuclear weapons, subject to a “legally binding, time-bound” plan for their destruction by a deadline to be determined by a meeting of the states parties.

From a legal perspective, there are many issues of analysis and interpretation that will keep scholars – well, me anyway – busy writing about the TPNW for years to come. These include the tension that will exist between the obligations of the TPNW, and the nuclear weapons commitments of NATO members. This, by the way, explains the Netherlands’ rather uncharacteristic vote against a nuclear disarmament treaty. NATO defense policy includes a longstanding commitment to nuclear weapons sharing agreements. At present, five NATO countries have such agreements with the United States, pursuant to which U.S. nuclear weapons are stationed on the territory of the host state, and are to be used by the host state’s military in the event of an armed conflict. The Netherlands is one of those states, along with Belgium, Germany, Italy, and Turkey. It is estimated that a total of 180 U.S. B-61 thermonuclear weapons are currently stationed on the territory of these five NATO host countries, the largest number of which are stationed at Aviano air base in Italy, and Incirlik air base in Turkey

But recall that Article 1(g) of the TPNW provides that no state party shall “Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.” This paragraph was very intentionally added to the TPNW in order to close a controversial loophole in Article II of the NPT, that NATO has long argued allows for such nuclear sharing agreements. So what happens if any member of NATO joins the TPNW? Can this provision of the TPNW be reconciled with the nuclear weapons sharing commitments of NATO members? Most NATO countries, clearly including the Netherlands, appear to think that it cannot be.

Other issues that require careful interpretation and analysis include the relationship between the TPNW and the NPT on matters such as safeguards of nuclear materials and facilities, and the role of the International Atomic Energy Agency. This is a subject that was contentious during the drafting of the treaty, and one on which I have already provided some preliminary commentary over at my blog.

From a political perspective, even without the buy-in of the nuclear armed states – and indeed precisely because of it – the TPNW will undoubtedly have an impact on nuclear weapons diplomacy going forward, particularly in the context of diplomacy surrounding the NPT. The next NPT Review Conference is scheduled for 2020, and the Preparatory Committee meetings for that conference have already begun. It will be important to see how the states parties to the TPNW seek to bring the treaty’s existence and implications into those already highly fraught negotiations about the health and relevance of the NPT. Many states parties to the TPNW see the new treaty as an implementation of Article VI of the NPT on nuclear disarmament, and will seek to have it acknowledged as such in the Review Conference’s final document. This will be heavily opposed by the nuclear armed states and those under their “umbrella” of nuclear protection. But negotiations on a consensus Review Conference final document are always unpredictable, and if some acknowledgment of the TPNW can be worked into it, that will represent a major political and potentially legal coup for the TPNW parties.

While much remains to be addressed both legally and politically concerning the TPNW, my own view is that the adoption of the TPNW is an event to be welcomed. It is a very useful legal supplement to the increasingly marginalized NPT, and represents a welcome shakeup of stagnant NPT politics. It very forcefully puts the issue of disarmament front and center in international nuclear weapons diplomacy. The nuclear-weapons-possessing-states can of course avoid signing the treaty. But it is now much more difficult for them to avoid seriously addressing the expressed will of the international community that nuclear weapons should be understood to be just as immoral as any other banned weaponry, and that as such their development, possession, and use should be prohibited in international law.

NYT Piece on U.S. Noncompliance with the JCPOA (with Commentary from Me)

See the article here.  I’m included in the video accompanying the article. I do think this is a straightforward case of noncompliance by the U.S. with the JCPOA.

It appears, though, that all signs point to this being the last 90 days of the U.S. participation in the JCPOA. See this analysis here.

I think this FP piece explains well how this would be the worst possible outcome for the U.S.   If Trump does withdraw from the deal, the U.S. will be a complete outlier and will be seen as having acted in bad faith.

Of course, we already look ridiculous to the rest of the world due to Trump’s other domestic and foreign policy blunders.

My Impressions on the Second Draft of the NW Ban Treaty

A second draft text of the nuclear weapons ban treaty, currently in the final stages of negotiation at UN headquarters, was released last night. Find it here.   As a quick side note, the name of the treaty seems to have changed since the first draft, from a “convention” to a “treaty.”  Of course that has no legal significance, I just found it interesting.

I provided commentary on the first draft of the treaty text, released on May 22, in a previous post, in the form of a formal legal memorandum to the chair of the conference.

I’ve now read over the second draft, and I have to say that I’m overall quite pleased with it.  The chair and the negotiators appear to have addressed a lot of the concerns I had with the first draft text, in particular concerning the relationship of the treaty with the NPT, as well as how the treaty addresses safeguards and the role of the IAEA.  I find the operative provisions of the second draft of the text to be much better on these points.

Specifically, I’m much happier with the revised text of Article 19, which now doesn’t mention the NPT or the “rights and obligations” therein. That’s a big improvement. Although the text that remains in the second draft doesn’t really seem to serve any purpose that isn’t already served by general principles of treaty law, and there is some potential for it to cause mischief, so I would still on balance prefer to see the whole article removed.

I’m also much happier with the revised text of Article 3 on safeguards, especially alongside the removal of the Annex, which I recommended. I’m also happier with the roles assigned to the IAEA in Article 4, as the administrator of safeguards agreements and not as the presumptive verifier of nuclear weapons disarmament.  Those are two very different things.  The IAEA has been involved in the latter activity on a few occasions (e.g. South Africa, Iraq), but these have in each case been sui generis and not undertaken solely on the basis of the IAEA’s regular authority pursuant to its statue and safeguards agreements.

I know there’s been some concern expressed over the change in the text of Article 4 to allow a state possessing nuclear weapons to ratify the treaty and then subsequently disarm itself. I’ve heard this concept referred to as the “on ramp” option for treaty membership of nuclear weapon states.  I actually don’t have a problem with the way the second draft treats the various possibilities for nuclear weapon possessing states to join the treaty, i.e. whether by elimination prior to joining, or by elimination after joining pursuant to a “time-bound” plan.  Verification of disarmament will be difficult under any circumstance – as is verification of nonproliferation now.  But the basic idea of a state joining the NW ban treaty as an intermediate step along the process of its actual physical disarmament, perhaps as one of the important diplomatic steps manifesting and concretizing its intent to do so, makes sense to me.

Of course, not all of my concerns have been addressed in the new draft text. For example, the text on victim assistance in Article 7 of the second draft is essentially unchanged from its form in Article 6 of the first draft.  I think this is still problematic for the reasons I explained in my memorandum.  Ditto for the language on international cooperation in Article 8 of the second draft, essentially unchanged from Article 8 of the first draft.  And I still do not understand why the process outlined in Article 11(5) of the second draft (which contains the text that appeared in Article 11(2) of the first draft) has been employed for amendments.  It’s a real mystery to me and potentially problematic, for the reasons I explained in my memorandum.  But frankly these are all subsidiary concerns that I can live with.

The preamble to the second draft has also gotten pretty ridiculously long and involved.  I agree with those who have noted that this seems to be where the chair has put things that states or NGOs passionately wanted somewhere in the treaty, but that were not seen as important enough, or as commanding of sufficient support, for inclusion in the operative paragraphs.  In general it doesn’t matter too much what is in the preamble, so I won’t lose any sleep over that.

Looking at the treaty from a macro perspective, I’m on record as having said that my preference would have been for the new NW ban treaty to be a full replacement for the NPT, accompanied by collective withdrawal of its states parties from the NPT.  That still would be my preference.  But this is clearly not the decision that the states negotiating the NW ban treaty have taken.  They have instead decided to adopt the NW ban treaty as a supplement to the NPT and an implementation of it.

That decision having been taken, I have been keen to push for the new treaty to be structured as an independent, stand-alone treaty which is understood to exist in harmony with the NPT, but which is not explicitly textually linked to the NPT regime, and that includes as little substantive overlap with the NPT as possible in order to avoid legal complications.  In my memorandum a couple of weeks ago, I used the CTBT as an analogical example of this approach.  This second draft of the NW ban treaty does indeed seem to be heading more in this direction, and I’m quite pleased to see that.  I think it will simplify interpretation and implementation of the new treaty, and place it in a more reasonable systemic relationship with existing treaties including the NPT.

Which is good, because I’ll probably be writing about this damn thing for the next 25 years.

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.

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.