Reader Dan Joyner — a professor at the University of Alabama School of Law and author of the forthcoming Interpreting the Nuclear Non-Proliferation Treaty — sends along a photograph of one of a batch of cupcakes made by his students.
“They are, of course, made of yellow cake,” he explains “I told her that if she had added nuts she could have called them North Korean atomic cupcakes.”
I’ve asked this question before to no answer. Possibly someone thought I was FSB. I’m not.
Let’s say Iran had nuclear weapons experiments that did not require the form or amount of fissile material that requires disclosure to the IAEA under the CSA.
If that is the case, what has Iran ratified that would make those experiments illegal?
I assume that both Japan and Germany have conducted research that would be helpful if they were to decide to build weapons but research that is not required for disclosure under the CSA or AP.
I know without any question that Brazil has.
Assuming the documents are not forged, and further assuming they do not represent the diversion of significant quantities (as defined by the CSA) of controlled materials to a weapons program – would the experiments Iran is accused of even be illegal?
If so, by the terms of what text that Iran has ratified?
The short answer is: yes. (Remember you said “accused of”.) Iran’s nuclear program is constrained by the NPT, where they promised not to pursue nuclear weapons. There isn’t a peaceful use for assembling a mockup of a nuclear warhead. If they did it, then they were violating their legal obligations under the NPT and the implication is that they have/had a nuclear weapons program. The same seems to be true of their experiments with exploding bridge wire, though I think they could admit that and still make a case that it was for peaceful purposes. Many of the other experiments they are ACCUSED of, also imply a violation of their basic obligations under the NPT. Now, it is question of how believable those accusations are.
I would actually disagree with A Complete Stranger. I assume that the experiments you are referring to relate to warhead design and functioning. NPT Article II obligates NNWS not to “manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices.” I discussed the interpretation of this clause at length in my 2009 book “International Law and the Proliferation of Weapons of Mass Destruction.” The short version is that the NPT does not prohibit NNWS research and development activities related to nuclear warheads, short of actual manufacture of a nuclear explosive device. As you rightly say, many Western-friendly NNWS have longstanding R&D programs the results of which have given them all the knowledge they need to build a nuclear warhead. Those R&D programs have not been considered to be in violation of NPT Article II. I havent heard any allegations that Iran has actually manufactured a nuclear warhead or other nuclear explosive device. Short of that, There is no NPT violation. Dan Joyner
Dan, if I follow your logic, than a country can manufacture the pit, the lenses, the warhead case etc. without violating the NPT as long as they don’t put them together. In fact, they can go further than that, they can put them all together as long as the weapon is safed. After all, if it is safed, then it cannot explode and if it cannot explode, it is not an explosive nuclear or otherwise. But why stop there? Why not say its not a nuclear explosive until it explodes?
The entire preamble of the treaty makes clear that States are allowed to conduct research and development for peaceful purposes. If the entire purpose of the R&D is to build a weapon, then it seems to me that it is not only not in the spirit of the NPT, but is actually illegal under the same line you quote.
I haven’t written a book on the legal aspects of the NPT, but that is the way it seems to me. And that seems to be the way the world community is interpreting it. This includes several UNSC resolutions which invoke Chapter 7 of the UN charter, which would seem to settle the case.
ACS,
It is true that there is little in the way of solid legal interpretive material to flesh out the terms of Article II further than the text itself. The Foster criteria are often alluded to, but of course these are only the conclusions of one state’s official. Other states have argued that manufacture does not include R&D. So, exactly what it means to manufacture a nuclear explosive device is not clear. What I would argue is clear, however, is that R&D and design information are not included in the Article II prohibition. This may indeed not be a welcome interpretation to Western officials, but this is what the text says.
I assume that the UNSC resolutions you are referring to are those that forbid ENR activities in the case of Iran, and command disarmament in the cases of Iraq and NK. Those are indeed binding, but they are limited to the discrete circumstance of the target country. They are not interpretive material for NPT Article II generally.
Dan, It still seems to me that the “otherwise acquire” clause of Article II outlaws R&D. Any other interpretation leads you down the slippery slope of saying that anything short of actually exploding a nuclear weapon is not covered by the treaty.
Also, I disagree with you when you say that the UNSCRs against Iran–especially after the IAEA has declared all the unresolved disarmament issues are resolved–set no precedence for the interpretation of the NPT? To me, they clearly are saying that the alleged studies (the experiments) are violations of the NPT and by invoking Chapter 7, they are establishing international law.
I have to say, I have enjoyed this conversation and that it has pointed out some facets of the NPT I hadn’t thought about. But Ive run out of new things to say about it and can only repeat what Ive said before, so I will stop. Nevertheless, I look forward to hearing what you have to say in response.
So I guess the question is what obligations are imposed on a country directly by Article II, instead of through the CSA.
The NPT was negotiated with the understanding that by complying with the CSA, a country could not build a weapon. That is where the NPT originally drew the line. As long as a country has not diverted a significant amount of fissile materials from safeguarded processes, that country does not have a weapon.
No slippery slopes. A bright line, on one side is a weapon as negotiated by the NPT and on the other side no weapon. Article II’s obligations were written to be fulfilled by the CSA. Any weapons research that does not involve diverting a significant quantity of fissile material away from safeguarded processes was on the “no weapon” side of the line.
So one question now becomes can the UNSC unilaterally rewrite the NPT, and has it for Iran with the resolutions.
Another question is has the UNSC unilaterally rewritten the NPT not only for Iran but for every (non-weapons) signatory.
My last question though: I assume Japan has done research on weapons that it has never had to declare. I know Brazil has.
Has the UNSC rewritten the NPT such that Japan and Brazil are now in violation?
Or even worse, it seems like what the UNSC is saying is that case by case, depending on the availability of a veto-weilding permanent UNSC sponsor/ally, the NPT is subject to different interpretations country-by-country. That completely eliminates the “without discrimination” clause of Article IV.
ACS,
The otherwise acquire clause of Art. II still relates to otherwise acquiring a nuclear explosive device – as in by acquiring it from another state or NSA. It doesnt to my reading change the threshold of manufacture or acquisition of a nuclear explosive device per se as the threshold of prohibition.
I’ve enjoyed our conversation too. These are the questions I have spent the last ten years thinking about. So always happy to discuss them. If anyone is interested in my fuller analysis of the NPT and its legal interpretation, Chapter 1 of my first book, and the whole of my second book are devoted to it.
With regard to the issue of the implications of UNSC resolutions raised by ACS and by Arnold, there is alot of misunderstanding outside of the international law community about the powers of the UNSC. Contrary to popular belief, the UNSC is neither a legislative body with a lawmaking role, nor a judicial body with a legal interpretive role. They have a limited mandate in the UN Charter to take decisions to maintain and restore international peace and security in discrete cases. In that sense they are much more analogous to an executive body. I have written in my 2009 book and in a number of articles that the UNSC has in a number of nonproliferation cases overstepped its Charter bounds – analogous to an executive overreaching their constitutional authority. There is a fair amount of literature being written in the international law community saying the same thing. So I would strongly advise against looking to the UNSC as an interpreter of the NPT generally, and certainly not as a ‘re-writer’ of the NPT as Arnold puts it.
I assume you all know what happens when you assemble a large quantity of these atomic cupcakes in a critical configuration?!?
http://www.life.com/gallery/33842/image/71083487#index/9
Thats awesome Tom!
I think we’re OK. Looks like lithium to me.
That’s brilliant!
Ah yes, Japan: Just how does Japan fit into the schema of the NPT and the IAEA regulations? It is my understanding that with fuel recycling, and two generations of sodium-cooled fast breeder reactor, Japan necessarily possesses large quantities of already refined weapons grade fissionable materials. Furthermore, with the research to forward those technologies don’t they of necessity have all the ancillary technologies?
To take the darker side of the argument, Koreans in general, and North Koreans in particular, take a positively paranoid, if not pathological, view of Japanese intentions.
Minority opinions of what is and is not covered by the NPT are not all that relevant to the real world. This treaty is not valuable for the tremendous legal precedent that it sets, although some might think it so.
Iran or other “violator” states are not going to be brought in front of a judge. No one is going to argue whether or not they were actually in violation of a treaty or obligation, simply because the treaty text wasn’t specific as some would have liked. These are academic exercises at best.
The NPT IS valuable for the international norms that it sets. At a minimum, Iran is violating the spirit of the NPT, if not the letter. There are enough countries that feel this way such that a debate about whether or not they are violating the text of NPT is a trivial one.
Nick:
Whether or not these experiments are legal is irrelevant? You could have saved yourself some typing then and just not addressed the question.
Some people find the question relevant and those that do find it relevant and also believe Iran’s alleged experiments would have been illegal if they actually happened have, in my opinion, been unable to put forward a coherent theory as to why.
A couple of questions for you though.
1) You say minority opinion. Have you counted, done a poll? How do you know what side in in the majority of what?
2) If we assume Japan has done weapons R&D, then has Japan violated at least the spirit of the NPT?
3) Since we’re talking about the spirit of the NPT, do you think the US has engaged in good faith negotiations to reach full disarmament as required by the NPT? Or is the US violating the both the letter and the spirit of the NPT?
4) Is nuclear technology available to all non-weapons states without discrimination as required by the NPT? Or is the US again violating both the words and the spirit of the treaty?
5) But since you say Iran is violating “at least” the spirit of the NPT, exactly how? I don’t expect you to be able to produce a clause in any agreement that it’s program is violating, but as specifically as you can, how do you claim Iran is violating the spirit of the agreement?
Arnold,
I think the point is that there is little that is black-and-white legally. It’s not that the legal issues are irrelevant, it’s that there is a wide range of opinion and, unlike a traditional national legal system, there is no judiciary to draw lines regarding what constitutes compliance (and hence what is “legal”). Those lines are instead drawn by individual nations acting unilaterally or in concert with others as well as the consensus of international opinion.
So yes, academically speaking, one can argue that art. II allows any number of things including military R&D. The problem with that argument is that the vast majority do not subscribe to that view and interpret art. II much differently. There’s a reason no nation (that I’m aware of) has gone before the court of public opinion and declared that its nuclear military research is allowed under article II. The reason is that every other nation (except, perhaps, for a handful of usual suspects) would not accept that. In short, there’s no court where a Johnny Cochran could make that argument fly.
This same problem of defining compliance is applicable to other parts of the NPT. What exactly is required for a nation to be in compliance with article IV or VI? The NPT provides no definitions or methods to assess whether nations are living up to their obligations here either. That doesn’t mean those articles are irrelevant, it just means that strictly legal arguments are insufficient.
In short it’s a mistake to read the treaty, fill in all the grey areas with one’s own interpretation and then simply declare that interpretation is the the only one that’s legally valid.
Arnold,
I assume, then, that you are willing to apply the same standard of the meaningfulness of international law to all treaty parties. I mean to NWS as well as to NNWS. I’m thinking particularly about Article VI of the treaty and the longstanding US arguments that it is in compliance with the letter of the Article, notwithstanding the court of world opinion being decidedly of the view that it is in breach of at least the spirit of the Article. What I often hear are one sided arguments about the meaningfulness of international law, that tend to hold developing countries strictly accountable for breaches, but excuse the behavior of powerful developed countries because the law is too vague to be meaningful. I dont know if this is what you mean. Thats why I’m asking.
As an international lawyer, I can tell you that we dont just fill in treaty gaps with our own opinion. There is a well established body of law on how to interpret a treaty, and it can be applied rigorously. You are right that the voluntary jurisdiction of the ICJ and other international tribunals makes formal adjudication of international legal disputes rare – although it should be noted that this is primarily because powerful states like the US will not submit themselves to the ICJ’s jurisdiction. However, like any legal system, there are better legal arguments and worse legal arguments on every issue. And just because there is no formal adjudication in a case, it doesnt mean that there isnt a right legal answer.
Dan Joyner
Sorry Arnold, I meant to address that last post to Andy, not to you.
Dan,
Thanks for the reply! And just to note, I’m not at all a lawyer, though I do know some good lawyer jokes!
Seriously though, on your question of applying standards evenly I agree, which is why I specifically mentioned articles IV and VI in my comment. There is a similar dispute there regarding where to draw the line because the NPT is silent on what constitutes compliance and what constitutes breach. If you’ve spent anytime at all in the past several years here at ACW you’ve no doubt read arguments by several commenters that Iran, for example, was justified in keeping parts of its program secret because the NWS were not fulfilling their article IV and VI obligations. Some go so far as to essentially suggest there is no such thing as proprietary nuclear technology and that it all must be shared. Others take a much more restricted view. Who is right legally? Not even lawyers who are experts in this area agree.
You’re also right about the one-sided arguments and they tend to go both ways – it’s not shocking that states tend to interpret treaty vagueness in a manner that benefits the state. That’s one reason I’m generally skeptical of legalistic arguments in such areas of international law.
Additionally, I agree there are “better” and “worse” legal arguments on every issue, but that kind of makes my point – the greatest legal argument means nothing unless it gets adjudicated and can be enforced. “Better” and “worse” are also, by definition, subjective judgments. Also, it’s not just powerful countries that are wary of the ICJ – states generally don’t like to give up sovereignty without good reason and doing so is particularly problematic in democracies where governments can’t simply hand over that kind of authority.
Finally, you say in your last line: “And just because there is no formal adjudication in a case, it doesnt mean that there isnt a right legal answer.” True in some cases, not true in most cases IMO which includes many questions regarding the NPT. What, for example, is the right legal answer on compliance with articles IV and VI? What does “manufacture” include and exclude in article II? What does “peaceful purposes” mean specifically and who gets to decide whether some nuclear activity is peaceful or not? My point is that on such questions the “right” legal answer is subjective and where one stands usually depends on where one sits.
Andy,
It seems we just have some fundamental differences in the way we view international law as a legal system, and its meaning to states. We’ve moved into the kind of discussion that we would have in my public international law class, and we could go back and forth about it. Probably best not to pursue it in this forum. I suppose I will end by saying that I maintain there are right and wrong legal answers to questions of treaty interpretation, and that if international law matters to states, which I think it does overall, determining the right answer to legal questions is important even without formal adjudication. Classically, thats where lawyers and law professors come in. It is of course true that lawyers dont always agree on the right answer. If discovering the right answer were that easy, we’d all be out of a job! But there is always disagreement over the right answer, even when there is formal adjudication. However, a majority conclusion among international lawyers as to the correct interpretation is evidence of the right answer arguably equal or greater in its probative value to the decision of a judge in a formal adjudication.
So yes, academically speaking, one can argue that art. II allows any number of things including military R&D. The problem with that argument is that the vast majority do not subscribe to that view and interpret art. II much differently. There’s a reason no nation (that I’m aware of) has gone before the court of public opinion and declared that its nuclear military research is allowed under article II. The reason is that every other nation (except, perhaps, for a handful of usual suspects) would not accept that. In short, there’s no court where a Johnny Cochran could make that argument fly.
What isn’t really, as far as I can tell, subject to serious argument is that military R&D is not required to be disclosed under the CSA or AP, the standard specific enforcement agreements.
Given the trivial cost of getting some understanding of nuclear weapons, why would anyone believe that nowhere in, say, Canada’s national security structure has anyone worked out a design and just not reported it to the IAEA.
Military R&D is arguably, and not a particularly strong argument, directly banned by Article II, but it is certainly not banned or even required to be disclosed anywhere else. Seriously, “otherwise acquire” means R&D? In what dictionary? I’ll call it arguable if there are actually people arguing it but come on.
So why has Canada not gone to the IAEA and said we’re doing military nuclear R&D but not diverting fissile material? Why would it? What would be in it for Canada to say that? That isn’t by any stretch proof that Canada accepts that it would be illegal.
The US isn’t looking for or forging documents claiming Canada has done non-fissile material warhead experiments for political reasons. If it did, and Canada was caught red-handed because a disgruntled scientist released files, then so what? These experiments would not be a violation of Canada’s agreements. Canada would likely deny it. Whether or not anyone believed the denial wouldn’t be important and Canada would continue as if nothing happened.
Legally, what alternative is there to that?