Need for new nuclear containment tools

(My thanks to IntLawGrrls for the opportunity to contribute a 2-part series of guest posts. Part 2 is below; Part 1, published yesterday, is here)

Just announced are the terms for the next round of talks on Iran's nuclear technology. They are set for next Monday and Tuesday in Geneva, Switzerland, between:
► Catherine Ashton, the European Union's High Representative for Foreign Affairs and Security Policy, formerly an officer of the London-based Campaign for Nuclear Disarmament; and
► Dr. Saeed Jalili, secretary of Iran's Supreme National Security Council and its lead nuclear negotiator.
As demonstrated in my post yesterday, to date these negotations have been marked by lack of trust on all sides. Debate remains, however, to what extent the lack of trust can generate legal implications.
Some argue that without a ‘smoking gun’, there is no ground to act against Iran. They warn of the danger in relying on strategic assessment, which may prove to be misguided, as was the case of Iraq in 2003.
Others emphasise the severity of the risks, on the one hand, and the ability of proliferators to hide the evidence, on the other hand. They agree that comprehensive and logical assessments regarding nuclear proliferation need to include as much hard evidence as possible; nonetheless, they contend that in the interest of non-proliferation, such assessments should not be held hostage to the absence of such evidence. (credit for above logo from Iran's atomic energy site)
No less significant is the question of how to deal with a state once it is identified as a suspected proliferator.
Clearly the regime established by the 1968 Nuclear Non-Proliferation Treaty is ill-equipped to deal with cases such as Iran’s.
The provisions of the treaty are not geared to seeking out and stopping suspected defectors; moreover, these provisions lack precise criteria for dealing with such suspicions when they arise. Drafters devoted little attention to the prospect that a state might develop an interest in becoming a nuclear-weapon state without first withdrawing from the treaty.

(credit for map showing states with nuclear weapons in red, treaty-established Nuclear Free Zone in blue, and nuclear sharing states in orange, and states that are none of the above yet members of the treaty) In a world of new instabilities, where nuclear technology is increasingly accessible, the treaty is failing to achieve containment. The treaty's consensual regime was established during the Cold War, which encouraged adherence to the treaty and to the safeguards regime of the International Atomic Energy Agency. Some argue that this consensual regime is not only increasingly ill-fitted to address nuclear weapons proliferation risk, but actually enhances the incentive to proliferate.
Various initiatives and proposals attempt to escape this impasse.
Some proposals would try to strengthen the existing non-proliferation regime from the inside, both substantively and institutionally.
Other proposals move away from consensual mechanisms aimed at encouraging compliance, and towards effective enforcement. Even initiatives related directly to strengthening compliance with safeguard agreements invest in non-consensual mechanisms for strengthening the existing regime. Examples include:
► Generic Security Council resolutions to address the case of a state that has been found by the Agency to be deliberately in non-compliance with its safeguards undertakings; or
► Declaration that nuclear weapons proliferation constitutes a ‘threat to the peace’, thereby engaging the sanctions regime of U.N. Charter Chapter VII in every case of non-compliance with the Atomic Energy Agency.
None of these proposals, however, addresses what is perhaps the greatest obstacle to success of the Non-Proliferation Treaty regime: its unique formal asymmetry and the legacy of international practice. Whatever the legal extent of the obligation to disarm, undoubtedly the political legitimacy of the regime is being undermined by what is perceived as abuse of status by the 5 treaty-recognized nuclear weapons states, Britain, China, France, Russia, and the United States.
It remains to be seen whether effective legal tools will be adopted in a timely manner to prevent Iran’s nuclear programme from maturing into a nuclear threat, or whether international law will continue to play a merely responsive role to that threat.

Negotiating Iran’s nuclear activities

(My thanks to IntLawGrrls for the opportunity to contribute a 2-part series of guest posts. Part 1 is below)

The recent announcement that Iran is willing to resume negotiations over its nuclear activities presents an opportunity to recap the development of the conflict over this issue, which erupted over eight years ago.
This conflict and its legal implications are considered in my book The Iran Nuclear Issue (Hart Publishing, 2010), on which this series of guest posts draws. In addition to a legal analysis, the book contains a detailed chronology and the texts of documents which underlie the evolution of the conflict.
In August 2002, an Iranian opposition group revealed the existence of two previously undisclosed nuclear facilities under construction in Iran.
In December 2002, the United States published satellite pictures of the two facilities, as proof of its long-held suspicions that Iran was pursuing both weapons of mass destruction and long-range missile capabilities.
Iran reacted by stating repeatedly that it was committed to the prevailing international legal regimes on weapons of mass destruction, including the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. Iran contended that its commitment derived not merely from its contractual obligations but, more importantly, from its religious convictions and historical experience. Iran maintained that its programme, which was aimed at mastering the complete fuel cycle, was intended solely to support a civilian nuclear energy programme. It explained that it had operated clandestinely because of obstructions, by the United States and other countries, to its overt activities.
Suspicion nonetheless arose and increased among various states, and the matter was taken up by the International Atomic Energy Agency, which began an intensive inspection and verification operation in Iran. The Agency found that Iran had made substantial efforts over the previous two decades to master an independent nuclear fuel cycle, and was carrying out research and development activities related to the treatment, storage and disposal of radioactive waste.
In June 2003, and several times subsequently, the Atomic Energy Agency declared that Iran had failed to comply with obligations under its bilateral Non-Proliferation Treaty Safeguards Agreement.
Calls ensued, on the one hand, to take decisive measures against Iran, including referral to the U.N. Security Council, and on the other hand, to give Iran a chance to rectify its conduct.
Amid this debate, the United Kingdom, France, and Germany -- the EU3 -- undertook to negotiate directly with Iran. In October 2003, the two sides issued the Tehran Statement, in which Iran agreed to cooperate fully with the Atomic Energy Agency in order to settle all outstanding issues and to correct any failures to comply with its Safeguards Agreement. The EU3, meanwhile, informed Iran that if it complied with its commitments, the EU3 would not seek referral of Iran’s dossier to the Security Council.
In mid-2004, Iran resumed work on uranium conversion.
To defuse the crisis that followed, the EU3 engaged again in negotiations with Iran; overall, however, those negotiations did not result in any change of policy. Both sides expressed disappointment with what each deemed the other’s broken promises, procrastination, and bad faith.
The EU3 consequently aligned with the United States, which had already been pressing the International Atomic Energy Agency Board of Governors to refer the Iranian issue to the Security Council. This Board urged Iran to re-establish full, Agency-verified suspension of all enrichment-related and reprocessing activities, including research and development.
In January 2006, Iran began to enrich uranium in centrifuges at its Natanz plant. In reaction, the Agency's Board of Governors referred the Iran dossier to the Security Council, which has since adopted six resolutions under Chapter VII of the Charter of the United Nations. These resolutions imposed enforcement measures on Iran until it complied with the previous demands of the Security Council and the requests of the Board of Governors. The resolutions further added the suspension of work on all heavy-water-related projects, including the construction of the heavy-water research reactor in Arak (left). (photo credit) Enforcement measures include:
► A trade embargo on items and technologies which could contribute to the activities Iran was ordered to suspend; and
► A travel notification requirement and asset freeze with respect to designated individuals and entities involved in the activities Iran was ordered to suspend.
In August 2007, the Agency Secretariat and Iran negotiated a work plan to address a limited number of issues regarding Iran’s past nuclear programme. Outstanding issues have largely been addressed. But the Agency is still requesting that Iran:
► Account for and explain a series of documents found in its possession which point to nuclear weapons-related research; and
► Respond fully to queries on weapons studies that Iran had allegedly conducted. Iran denies the existence of any such studies.
These outstanding issues -- in addition to Iran’s continued refusal to suspend uranium enrichment and construction of the heavy-water reactor and adhere to the Additional Protocol -- form the basis upon which the Security Council maintains the Iran dossier and pursues sanctions against Iran.
Iran, however, argues that the work plan issues have been resolved satisfactorily. It further argues that even under the Security Council’s own terms, there is no basis for continuing the sanctions regime or for maintaining the Iran case before the Security Council. Iran claims that nothing short of its total capitulation will satisfy the Western powers, and regards this as extortion.
Others accuse Iran of being the one engaging in blackmail, in its demand for economic assistance permitted under Articles III and IV of the Non-Proliferation Treaty and for the release of sanctions as conditions for returning to the path of non-proliferation. Western states argue that, given Iran’s past record of concealment and its overall policy, Iran cannot benefit from the doubt as to its ultimate goal. It seems that any stance adopted by Iran which falls short of complete acquiescence is regarded not only as an act of defiance but also as an indication that Iran has something to hide.

(Tomorrow, Part 2: Implications of this negotiating history)

A New START, but disarmament is still at the starting line

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

The “Treaty Between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms,” more commonly known as the New START (prior IntLawGrrls post), could have earned any of a variety of other possible nicknames: post-START, START’s successor, START follow-on. How appropriate that the current administration is calling this treaty, signed on April 8 of this year, what it is: a modest new start to a process that began over two decades ago during the administration of President Ronald Reagan, who, like President Barack Obama (above, far right), publicly aspired to a world free of nuclear weapons. (photo credit)
The United States and Russia could have progressed to much deeper cuts in their nuclear arsenals over that time. Instead, inattention to arms control and missed opportunities in those intervening years turn what would otherwise seem like a small step of restarting a 20-year-old process into a laudable achievement.
In terms of reducing nuclear armaments, New START is rather a “modest step,” as many have observed (e.g. former Secretary of Defense William J. Perry and former Secretary of State George P. Shultz, here, and Stanford’s Pavel Podvig, here. The ceiling on deployed nuclear warheads in new START is 1,550, compared to 6,000 in START and 1,700-2,200 in the Moscow Treaty, which was signed on May 24, 2002. But much of that purported reduction had either already occurred as of signing or will be achieved through different counting methods rather than actual destruction of weapons.
New START is not so very different from the original START. Comparison of New START with the original, START I, reveals:
► 12 of New START’s 16 articles borrow heavily from its parent.
► START was nearly twice as long as New START and more complicated, creating cumbersome inspection and verification regimes and rules that had come under bilateral derision toward the end of its life.
► Some of START I's complexity has been left out of the new treaty regime entirely. For example, Article VI of START I, relating to “restricted areas” and the number of structures that each covered facility could include. A Fact Sheet of the State Department touts this simplicity, referring to New START as including

a verification regime that is adapted from START, but is simplified, less costly to implement, and tailored to the specific provisions of the new Treaty.

► New START, for all the brevity and simplicity of the 16 Articles of the Treaty’s text, relies on a lengthy Protocol, plus Technical Annexes to that Protocol. As the White House explained:

The Protocol and Annexes will be integral parts of the Treaty and thus submitted to the U.S. Senate for its advice and consent to ratification.

When considered as a whole, New START with its Protocol and Annexes may not fall so short of the original in its length and bulk.
So why did the task of slightly simplifying a 20-year-old treaty and making modest moves toward disarmament present such a challenge that old START’s expiration date came and went without the successor treaty being concluded?
Dmitry Medvedev, Russia's President, commented after the signing of New START:

'Just a couple of months ago, (this) looked like mission impossible.'

The difficulty lay not in the challenge of the task itself, but in the strained relations between the United States and Russia at the end of the Bush administration. The expiration of the START I treaty on December 5, 2009, was not unforeseen throughout its 15-year lifetime. To the contrary, it was apparent in the plain language of the treaty's expiration provision, Article XVII.
Yet the Bush administration:
► Dithered over what the desired successor agreement should look like,
► Placed missile defense as its sole priority in the area,
► Unilaterally withdrew from the Anti-Ballistic Missile Treaty in 2001, and
► Downgraded the bureau within the State Department that was responsible for arms control, even removing the phrase “arms control” from all titles and names.
All of this left the Obama administration severely handicapped in the race to reach a successor agreement within the president’s first year in office.
That New START has been signed within only a few months after START’s expiration is thus a significant achievement.
The United States can lead by example, asking other countries to honor their obligations under the Nuclear Non-Proliferation Treaty, or NPT. Possessing 95 percent of the world’s nuclear weapons, the United States and Russia bear primary responsibility for fulfilling Article VI of the NPT:

to pursue negotiations in good faith on effective measures relating to … nuclear disarmament.

U.S. neglect of that responsibility in the past has been used to excuse non-nuclear-weapons states from their responsibilities under the NPT not to acquire nuclear weapons.
Headed by Secretary of State Hillary Clinton, the United States' delegation will arrive tomorrow at the 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons at U.N. headquarters in New York with a strengthened hand. (credit for March 2010 photo of Clinton arriving in Moscow for negotiations above left; credit for U.N. photo above right) That hand includes:

► New START,

► the recent release of the administration’s Nuclear Posture Review, and

► the United States' hosting last month of a 2-day Nuclear Security Summit in Washington, D.C.

Next step:
(Hopefully), Senate ratification of New START.
And beyond that:
(Hopefully), with a shorter horizon of 10 years for expiration of New START, more earnest steps toward real disarmament during the lifetime of the treaty.

A dream again deferred *

Talk about stepping on message.
This was supposed to be the week that we contemplated a world without nuclear weapons.
At least that was what U.S. President Barack Obama aimed for when he chose a public square in Prague, Czech Republic, for a Palm Sunday speech pledging to that his "administration will immediately and aggressively pursue U.S. ratification of the Comprehensive Test Ban Treaty," "will negotiate a new Strategic Arms Reduction Treaty with the Russians this year," "will strengthen the Nuclear Non-Proliferation Treaty as a basis for cooperation," and will work with allies toward an eventual and total nuclear disarmament.
Kim Jong-il had other ideas.
In the wee hours before Obama was to deliver his speech, the North Korean leader ordered the firing of a rocket that he maintains is a communications satellite, but that much of the rest of the world assumes was a test-run of technology for transport of a nuclear missile.
How did the world respond?
The United States and the European Union condemned the launch.
U.N. Secretary-General Ban Ki-moon, formerly a diplomat for South Korea, expressed "regrets."
The U.N. Security Council did manage an emergency session yesterday afternoon. But it failed to reach agreement for the usual reason: a couple of the P-5 members that wield veto power, in this case China and Russia, balked at passing a resolution against the state in question.
By day's end, the North Korean launch attempt seemed a failure.
So too yet another effort at global collective security.
Dreams of a no-nukes world?
Again deferred.


(* In recognition, this National Poetry Month, of the 1951 poem by Langston Hughes.)

Slaughter leads Policy Planning at State

Kudos to our colleague Dr. Anne-Marie Slaughter (left), who's just completed her 3d week as the new Director of Policy Planning at the U.S. Department of State.

Slaughter had been serving as Dean of the Woodrow Wilson School of Public and International Affairs and the Bert G. Kerstetter '66 University Professor of Politics and International Affairs at Princeton University. (Prior IntLaw Grrls posts here and here.) Before that, she was the J. Sinclair Armstrong Professor of International, Foreign and Comparative Law and the Director of Graduate and International Legal Studies at Harvard Law School, and also taught at Harvard’s Kennedy School and the University of Chicago Law School. She served as President of the American Society of International Law from 2002 to 2004.

For hints at what State policies Slaughter might plan, take a look at her 2 most recent books, The Idea That Is America: Keeping Faith With Our Values in a Dangerous World (2008) and A New World Order (2004), and her 2008 comment in an ASIL feature on the Presidential race:

The most important question facing the next president is how to restore American respect for international law, in both perception and reality. Because of the dramatic rejection of international legal constraints in the first administration of George W. Bush, even fair-minded efforts to return to the rule of law in some areas in recent years has had little impact. The hardest legal issue, but one that simply must be addressed, is to agree on a set of interpretations of the Geneva Conventions, or perhaps even amendments, that define clearly what is permissible and impermissible in interrogating individuals suspected of terrorism who may have detailed knowledge about future attacks. The next task, which must be pursued simultaneously, is to revive and update the Non-Proliferation Treaty, with the full commitment of the United States to live up to our part of the bargain. Many other issues come to mind, but overall, the next President will have to decide on a menu of both symbolic and substantive acts and carry them out quickly and decisively. He or she will have to remind the American people, and convince the world, that the best safeguard of liberty is not force, but law.

Heartfelt congratulations!

On July 1

On this day in ...
... 1903 (105 years ago today), Amy Johnson (right) was born in Hull, Yorkshire, England. After receiving her bachelor's degree from Sheffield University in 1923, she worked as a legal secretary in London; there she became interested in aviation. She qualified as the 1st British-trained woman ground engineer. and for a while was the only woman performing this work in the world. Among her other achievements: 1st woman to fly solo from England to Australia, in 1930, in record time; record-setting flight from england to Japan, in 1931; and record-setting solo flight from England to South Africa, in 1936. When World War II broke out Johnson served in the Air Transport Auxiliary, "a pool of experienced pilots who were ineligible" for service in the Royal Air Force. On one of these flights, in 1941, her plane crashed in the Thames; Johnson's body never was recovered.
... 1968 (40 years ago today), 61 countries signed the Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature simultaneously in Washington, London, and Moscow. The Nuclear Non-Proliferation Treaty, or NPT, entered into force in 1970 and now has 187 states parties. It is monitored by the International Atomic Energy Agency, which is preparing for a treaty review conference in 2010.

On May 11

On this day in ...
.... 2008 (today -- the centennial celebration of Mother's Day in the United States), is the 1st day of National Women's Health Week. "[C]oordinated by the U.S. Department of Health and Human Services' Office on Women's Health," the observance is intended to "encourag[e] women to make their health a top priority and take simple steps for a longer, healthier and happier life." Perhaps a good place to start -- besides raising ovarian cancer awareness, as IntLawGrrl Rebecca Bratspies' post did yesterday -- would be figuring out why women's life expectancy is dropping in some parts of the United States.
... 1998 (10 years ago today), in a move that sparked "widespread outrage and concern," India carried out underground nuclear tests, the 1st since 1974, in the Pokhran range about 100 miles from its border with Pakistan (below right). Later the same month "Pakistan retaliated," the BBC reported, "with its own nuclear tests, confirming fears of an arms race in the region." To this day the 2 countries remain among the few nation-states not party to the 1968 Treaty on the Non-Proliferation of Nuclear Weapons; others are Cuba and Israel. (photo credit)