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I. RECENT DEVELOPMENTS IN INTERNATIONAL LAW REGARDING NUCLEAR WEAPONS

Published online by Cambridge University Press:  27 January 2011

Daniel H Joyner
Daniel H Joyner
Affiliation:
Associate Professor of Law, University of Alabama School of Law.
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Extract

This article examines a number of major developments in international law and State policy regarding nuclear weapons which have occurred over the past two years.

However, in order to understand the context and significance of these developments, I must first very briefly address what has gone on previously in this area of international relations.

I have argued elsewhere that over the course of the decade ending in 2008 the original balance of principles underlying the 1968 Nuclear Nonproliferation Treaty (NPT), which comprises the cornerstone of the nuclear non-proliferation legal regime, has been distorted, particularly by nuclear-weapon-possessing governments, led by the United States, in favor of a disproportionate prioritization of non-proliferation principles, and an unwarranted under-prioritization of peaceful use and disarmament principles.1 I also argue that this distortion of principled balance by nuclear weapon states has resulted in a number of erroneous legal interpretations of the NPT's provisions.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 60 , Issue 1 , January 2011 , pp. 209 - 224
Copyright
Copyright © 2011 British Institute of International and Comparative Law

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References

1 D. Joyner, Interpreting the Nuclear Nonproliferation Treaty (OUP, Oxford, forthcoming 2011).

2 Remarks by US President Barack Obama, Hradcany Square, Prague, Czech Republic, 5 April 2009.

3 Kelleher, CM and Warren, SL, ‘Getting to Zero Starts Here: Tactical Nuclear Weapons’ (2009) 39 Arms Control Today 8Google Scholar, 6 (‘Although President Ronald Reagan declared an end goal of zero nuclear weapons, it never became a formal policy position.); See also Rydell, R, ‘The Future of Nuclear Arms: A World United and Divided by Zero’ (2009) 39 Arms Control Today 3, 21–25Google Scholar.

4 Statement by Rose Gottemoeller, Assistant Secretary of State for Verification, Compliance and Implementation, on behalf of the US, to the General Debate of the Third Session of the Preparatory Committee for the 2010 Review Conference 5 May 2009.

5 See eg Statement by HE Ambassador Abelardo Moreno, Permanent Representative of Cuba to the UN on Behalf of the group of Non-Aligned States Parties to the Treaty on the Non-proliferation of Nuclear Weapons, to the General Debate 4 May 2009.

6 See D Joyner, ‘Can International Law Protect States from the Security Council?: Nuclear Non-proliferation and the UN Security Council in a Multipolar World,’ in M Happold (ed), International Law in a Multipolar World (Routledge, London, 2010).

7 See (n 2).

8 For more on the 2002 NPR, see D Joyner, International Law and the Proliferation of Weapons of Mass Destruction (OUP, Oxford, 2009).

9 Nuclear Posture Review, v.

10 ibid v–vi.

11 Ford, CA, ‘Debating Disarmament: Interpreting Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons’ (2007) 14 Non-proliferation Review 3Google Scholar, 403 & 411.

12 Nuclear Posture Review vii–viii.

13 Nuclear Posture Review viii.

14 For more on subsidiary arrangements, see D Joyner ‘The Qom Enrichment Facility: Was Iran Legally Bound to Disclose?’ JURIST (jurist.law.pitt.edu), 5 March, 2010. Available at http://jurist.law.pitt.edu/forumy/2010/03/qom-enrichment-facility-was-iran.php.

15 See generally Koskenniemi, M, ‘Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol’ (1992) 3 Yearbook of International Environmental Law 123CrossRefGoogle Scholar; B Simma and D Pulkowski, Of Planets and the Universe: Self-Contained Regimes in International Law (2006) 17 EJIL 483, 488–489.

16 See (n 2).

17 There is also of course the serious question of whether, with all of its caveats and stipulations, this new U.S. policy statement is in line with international law on the question of the use of nuclear weapons. See 1996 Advisory Opinion: Advisory Opinion on the Threat or Use of Nuclear Weapons, ICJ Rep 1996.

18 See DA Koplow, Death by Moderation: the US Military's Quest for Useable Eeapons (CUP, Cambridge, 2009) ch 5.

19 See ibid 111.

20 Nuclear Posture Review xiv.

21 What is a ‘New’ Nuclear Weapon? (2010) 40 Arms Control Today 3, 30, 32.

22 Available at http://www.whitehouse.gov/the-press-office/key-facts-about-new-start-treaty

23 ‘New START Treaty Has New Counting,’ FAS Strategic Security Blog (www.fas.org), 29 March 2010. Available at http://www.fas.org/blog/ssp/2010/03/newstart.php.

24 ibid.

25 ‘Prague Treaty Cuts are Modest, Real,’ ArmsControlWonk.com, 5 April 2010. Available at http://www.armscontrolwonk.com/2682/prague-treaty-cuts-are-modest-real

26 Joint Statement by the China, France, Russian Federation, UK, and the US to the 2010 Non-Proliferation Treaty Review Conference.

27 Statement by the Deputy Minister of Foreign Affaires of the Russian Federation, Sergey A Ryabkov, to the 2010 Review Conference, 4 May 2010.

28 Statement by HE Ambassador Anatoly Antonov, Head of the Delegation of the Russian Federation to the Second Session of the Preparatory Committee for the 2010 Review Conference, 28 April 2008.

29 US Statement to the NPT Review Conference, 3 May 2010, by US Secretary of State Hillary Clinton.

30 See (n 27).

31 See eg, Statement by Dr Andrew K Semmel, Alternative Representative of the US to the Second Session of the Preparatory Committee for the 2005 NPT Review Conference. Peaceful Nuclear Cooperation: NPT art IV. Geneva, Switzerland, 7 May 2003; Statement by US Under-Secretary of State for Arms Control and International Security John R Bolton, to the Third Session of the Preparatory Committee for the 2005 Review Conference. ‘The NPT: A Crisis of Non-Compliance,’ New York, 27 April 2004; ‘A Recipe for Success at the 2010 Review Conference,’ Dr Christopher A Ford, US Special Representative for Nuclear Non-proliferation, Opening Remarks to the 2008 NPT Preparatory Committee, Palais des Nations, Geneva, Switzerland, 28 April 2008.

32 UK Statement to the 2010 Non-Proliferation Treaty Review Conference by Ambassador John Duncan, Ambassador for Multilateral Arms Control and disarmament, 19 May 2010.

33 VCLT art 31(3)(a). See Carnahan, B, ‘Treaty Review Conferences’ (1987) 81 AJIL, 226CrossRefGoogle Scholar, 229; Joyner (n 9) 59.

34 Action 47.

35 Action 58.

36 See eg, Bolton (n 32), (‘In order to address loopholes and the crisis of noncompliance with the NPT, President Bush announced four proposals that would strengthen the Treaty and the governance structures of the International Atomic Energy Agency … The first proposal would close the loophole in the Treaty that allows states like Iran and North Korea to pursue fissile material for nuclear weapons under peaceful cover. Enrichment and reprocessing plants would be limited to those states that now possess them. Members of the Nuclear Suppliers Group would refuse to sell enrichment and reprocessing equipment and technologies to any state that does not already possess full-scale, functioning enrichment and reprocessing plants. Nuclear fuel supplier states would ensure a reliable supply of nuclear fuel at reasonable prices to all NPT parties in full compliance with the NPT that agreed to forego such facilities. In this way, nations could use peaceful nuclear power as anticipated by the Treaty, but not to produce fissile material for nuclear weapons. The Treaty provides no right to such sensitive fuel cycle technologies.’) (Emphasis added).

37 See Ford (n 12).

38 Principles and Objectives I(A)ii, 19.

39 See J Lewis, ‘The Pivot,’ ArmsControlWonk.com, 7 April 2010. Available at http://www.armscontrolwonk.com/2686/the-pivot

40 See (n 3).

41 See Statement by the Delegation of the Republic of Indonesia on behalf of the Group of Non-Aligned States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, at the Second Session of the Preparatory Committee for the 2010 Review Conference 28 April–9 May 2008. On Cluster 3 Issues: (‘The [NAM] Group rejects, in principle, any attempts aimed at discouraging certain peaceful nuclear activities on the ground of their alleged ‘sensitivity.’ Concerns related to nuclear non-proliferation shall not in any way restrict the inalienable right of all states to develop all aspects of nuclear science and technology for peaceful purposes.'); Statement by H.E. Ambassador Maged Abdel Fatah Abdel Aziz, Permanent Representative of the Arab Republic of Egypt, before the Third Session of the Preparatory Committee to the 2010 NPT Review Conference, 4 May 2009. (‘Egypt notes with growing concern attempts by some to reinterpret Article IV of the Treaty in a manner that aims to restrict the ability of non-nuclear weapon states to benefit from their rights by creating artificial categories of ‘sensitive’ and ‘non-sensitive’ nuclear technologies or ‘responsible’ and ‘irresponsible’ states. Egypt also views with concern efforts by the Nuclear Suppliers Group and other discriminatory arrangements to impose additional restrictions on some but not on others, in a manner that is clearly politicized and does not contribute to the implementation of the NPT's objectives, in particular its universality, as well as interference in the internal affairs of states by attempting to influence the determination of their nuclear energy requirements or to restrict their choice to achieve self-sufficiency in the area of fuel supply.'); See also Weiss, L, ‘Reliable Energy Supply and Non-proliferation’ (2009) 16 Non-Proliferation Review 2Google Scholar, 269, 274. (‘Outright denial of transfers of fuel cycle technology to non-nuclear weapon states have also become the norm for nuclear suppliers, leading to complaints that one of the grand bargains upon which the NPT was founded has been reneged on.’ At 280).

42 See, eg (n 28).

43 See Lewis, P, ‘Prospects for the NPT and the 2010 Review Conference’ (2010) 40 Arms Control Today 2, 19Google Scholar. (‘The various proposals for multinational approaches to the nuclear fuel cycle and assurance of supply are having a difficult time gaining traction in the developing world. There are persistent fears that the nuclear supplier countries are plotting price-fixing cartels and that they have a long term aim of infringing on Article 4 rights.’)

44 ‘Accord on New Rules Eludes Nuclear Suppliers,’ (2009) 39 Arms Control Today 6, 29.

45 For the most recent developments on this issue at the NSG, see Grossman, E, ‘Turkish Opposition Prolongs Deadlock on Proposed Nuclear Trade Guidelines,’ Global Security Newswire, 2 July 2010Google Scholar; Horner, D, ‘NSG Makes Little Headway at Meeting’ (2010) 40 Arms Control Today 6, 45Google Scholar (‘Meanwhile, at their 25–26 June meeting in Muskoka, Canada, the Group of Eight (G-8) industrialized countries extended their policy to adopt on a national basis the proposed NSG guidelines on enrichment and reprocessing transfers.)

46 See (n 29).

47 The July 2010 report issued by the US State Department, entitled Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments, is replete with interpretive errors regarding Iran and the NPT. On pages 3 and 62, it makes the bald assertion that Iran is in breach of NPT art III, without providing any compelling arguments establishing this allegation. It even, quite enigmatically, argues on page 67 that alleged noncompliance by Iran with its Subsidiary Arrangements agreement with the IAEA constitutes a violation of NPT art III. Again, no legal argument supporting this assertion (indeed, in my opinion there could be none) is attempted in the report.

48 J Wardell, ‘UK PM to Set Out Plan for Nuclear Talks,’ Associated Press (9 July 2009).