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.

Great Pieces by Trita Parsi and Hans Kristensen

I’ve read two exceptionally good pieces today that I just wanted to highlight for readers. One is by Trita Parsi in Foreign Policy, entitled “No, Sanctions Didn’t Force Iran to Make a Deal.”  In this piece I think Trita gives a tour de force rebuttal to what he accurately describes as the establishment myth coming out of the current negotiations between the P5+1 and Iran.  Hossein Mousavian has made similar arguments, as I noted a few months ago.

The second is a piece in Arms Control Today by Hans M. Kristensen, entitled “Nuclear Weapons Modernization: A Threat to the NPT?”  I’m actually kind of surprised that ACT published this piece. It seems a bit lefty and anti-USG for them. But I’m certainly glad they did. The piece gives a good overview of nuclear weapons modernization programs in the nuclear weapons possessing states, and links them directly (and correctly) to NPT Article VI. It’s exactly these kinds of arguments that the Marshall Islands are going to have to make in their cases before the International Court of Justice against the United Kingdom, India, and Pakistan.

Why is the U.S. Okay with Israel Having Nuclear Weapons but Not Iran?

I guess I just missed this when it came out back in December, but this is a good piece by Max Fisher in the Washington Post about a question that nonproliferation expert Joe Cirincione says in the piece comes up in every lecture that he gives on nonproliferation and the Middle East.  Many others of us have had similar experience.  And indeed it is omnipresent whenever any discussion about the proposed WMD Free Zone in the Middle East is had.

The piece offers some nice, concise history, along with useful quotes from good people like Cirincione, and the leading authority on Israel’s nuclear weapons program, Avner Cohen.

I’ve written before here on the topic of the double standard in Western, and particularly US, policy toward Israel’s nuclear weapons stockpile, and specifically in the context of the ME WMD FZ.

But one thing I think this WP article usefully does, and this is an observation made previously by Russ Wellen, is to point out that it’s really only natural that Israel in particular would be deeply suspicious of elements of Iran’s nuclear program that could be used to make nuclear weapons clandestinely, while the government lied through its teeth to the international community about their intentions, because this is exactly what Israel itself did. As Fisher writes in the WP article:

When U.S. intelligence did finally discover Israel’s nuclear facility, in 1960, Israeli leaders insisted that it was for peaceful purposes and that they were not interested in acquiring a nuclear weapon. Quite simply, they were lying, and for years resisted and stalled U.S.-backed nuclear inspectors sent to the facility. (This may help shed some light on why the United States and Israel are both so skeptical of Iran’s own reactor, potentially capable of yielding plutonium, under construction at Arak.) The work continued at Dimona.

Again, as I’ve written before, I can understand why Israel developed a nuclear weapons program, and why it wants to maintain its stockpile now. If I were in their shoes, I’d do the same thing. So I’m not morally judging Israel.  But what gets me time and time again is how Israeli officials, and their patrons in the USG, wax moralistic in their condemnation of Iran for its nuclear weapons related experiments and capacity development, and for its refusal to cooperate with international inspectors to the extent they think it should.  That is just pure, unadulterated hypocrisy, when viewed in the light of Israel’s own nuclear history, and the acceptance and diplomatic protection of Israel’s nuclear weapons program by the US.

Rebecca Johnson on Disarmament and the NPT

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

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

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

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

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

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

My 2011 Book Favorably Cited by International Law Commission Report

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

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

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

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

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

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

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

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

ILC Second Report Subsequent Practice and Agreement Treaty Interpretation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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