As part of the ongoing discussion about the role of international law in the future of arms control and disarmament, this essay argues that negotiated agreements, rather than attempts to advance new rules of customary international law, offer critically important advantages in the area of disarmament.
Negotiated agreements uniquely serve the long-term interests of a stable international legal system and are the only way to address a crucial aspect of meaningful disarmament: verification.
Background
Before discussing the future of international law, it is important to review and draw lessons from existing international law, which addresses nuclear weapons primarily through a complicated and interlocking web of verifiable agreements encompassing nonproliferation, disarmament, and peaceful use—the three all-important pillars of the nuclear Nonproliferation Treaty (NPT). Existing international law governing the use of force would apply to any use or threat of use of nuclear weapons, as it would to any other use of force.
After a brief survey of existing law, this essay will discuss the future of international disarmament law. Some states or nongovernmental groups might wish to argue for a customary international legal rule prohibiting the possession or use of nuclear weapons and would perhaps seek to base that argument on a nuclear weapons ban treaty to which no state possessing nuclear weapons is a party. Yet, rules prohibiting nuclear weapons would be nearly meaningless without accompanying detailed rules addressing, for example, verifiable methods of elimination, access for inspectors to countries’ most sensitive national security sites, and regular exchanges of information.
Viewed in this light, it becomes clear that the path for successful, meaningful arms control and disarmament is through careful negotiations involving the states that actually possess nuclear weapons. Taking that seriously may mean the process of international law formation in this area is slower than some might prefer, but it is the key to a durable and effective international legal system that has meaningful normative legal force.
Existing Law
As is well known, the International Atomic Energy Agency (IAEA) safeguards system, including the additional protocols to many countries’ safeguards agreements, is a major element of the international law of nuclear nonproliferation. Safeguards agreements and their additional protocols provide a mechanism to verify that source or special fissionable material in peaceful nuclear activities is not diverted to nuclear weapons or other nuclear explosive devices.
These agreements obligate states to submit to IAEA inspections and provide access to a broad range of facilities and locations involved in nuclear fuel-cycle activities. The safeguards system establishes obligations for nuclear material accountancy, gives the IAEA access to facility design information, and authorizes a range of monitoring techniques to ensure IAEA capability to verify information provided by national authorities.
In its efforts to prevent the spread of nuclear weapons, the United States augments that safeguards system with a network of verifiable nonproliferation agreements. One of its key tools is an agreement for peaceful nuclear cooperation, also known as a 123 agreement, after the section of the Atomic Energy Act that spells out the requirements for such agreements. These agreements fulfill the promise of the NPT to promote peaceful uses of nuclear energy while limiting the proliferation of nuclear weapons. They require U.S. nuclear trade partners to agree to strict nonproliferation conditions on U.S.-origin nuclear material and equipment or material derived from it, including consent rights on storage and retransfer, lifetime application of IAEA safeguards, guarantees of no explosive or military use, and assurances of physical protection. The agreements also impose prohibitions on enrichment of uranium or reprocessing of spent fuel without U.S. consent.
The 49 U.S. agreements for peaceful nuclear cooperation set a global standard that goes beyond the requirements of the NPT. Like the IAEA safeguards system, a critical feature of these agreements is verification. The United States insists on verifiable provisions that ensure material or technology is used for exclusively peaceful purposes. One example is the requirement that material subject to a U.S. 123 agreement be safeguarded in perpetuity, even if the agreement is terminated.
Existing international law on the use of force also has implications for the international law of nuclear weapons. The United States is committed to acting in accordance with its international legal obligations, including with respect to the use or threat of use of nuclear weapons.
The United States recognizes the humanitarian consequences of the use of nuclear weapons and made clear in its 2010 “Nuclear Posture Review Report” that it “would only consider the use of nuclear weapons in extreme circumstances to defend the vital interest of the United States or its allies and partners.”1 In addition, it is the policy of the United States “to seek the peace and security of a world without nuclear weapons,” as President Barack Obama put it in his Prague speech.2
It is important to emphasize that as the International Court of Justice (ICJ) noted nearly 20 years ago, neither the use nor the possession of nuclear weapons is categorically illegal under international law.3 Rather, like any other use of force, a theoretical use of nuclear weapons would have to comply with applicable international law, including the UN Charter and international humanitarian law.
The legality under these principles of any actual use of nuclear weapons, however, would depend on the facts and circumstances of the particular case and cannot be evaluated in the abstract.
With regard to existing law on nuclear disarmament, the United States has a decades-long track record of negotiating and implementing international agreements that have contributed significantly to a reduction of the U.S. nuclear stockpile by 85 percent from its Cold War peak.
The United States is committed to its obligation under Article VI of the NPT to pursue negotiations in good faith on effective measures relating to nuclear disarmament and a treaty on general and complete disarmament under strict and effective international control. The emphasis in the NPT on negotiations is often overlooked, but the drafters of the NPT appear to have been cognizant of the advantages of addressing a problem as complicated as nuclear disarmament through a rigorous, negotiated process.
The United States has discharged its Article VI obligation by continuously pursuing negotiations on effective measures, some of which have led to international arms control accords such as the Strategic Arms Limitation Talks agreements, the Intermediate-Range Nuclear Forces Treaty, and the Strategic Arms Reduction Treaties, first with the Soviet Union and later with Russia. The United States also is a party to the Limited Test Ban Treaty and was a leader in the negotiation of the Comprehensive Test Ban Treaty. The United States continues to press for negotiation of a fissile material cutoff treaty, which would place a cap on worldwide stocks of the essential ingredients for nuclear weapons and is an essential step toward a nuclear-weapon-free world.
A common element of these agreements, particularly as they have aimed for higher stakes, such as actual reductions in weapons or outright prohibitions on particular weapons systems, is an emphasis on exacting and intrusive verification. Existing nuclear arms control treaties contain detailed procedures governing the elimination of weapons systems and establish a complicated system of short-notice inspections that allow parties to verify compliance.
Although outside the scope of this article, it is important to note the significant role in nonproliferation and arms control of arrangements that are not legally binding. From the Nuclear Suppliers Group to the Presidential Nuclear Initiatives to the Proliferation Security Initiative, states have a long and successful history of addressing sensitive nonproliferation and disarmament problems in careful negotiations that culminate in effective political commitments that are not legally binding.
The Advantages of Negotiation
The second half of this essay outlines the advantages inherent to future negotiated international agreements to which states possessing nuclear weapons are parties—advantages that do not apply to an advisory opinion from the ICJ or attempts to advance a new rule of customary international law. This point is reinforced by the survey of existing law noted above, which provides examples of effective international legal obligations in the area of nonproliferation and disarmament that have taken the form of negotiated and verifiable agreements.
The process of negotiation is perhaps an underappreciated aspect of promoting adherence to and respect for international law. The act of negotiating lends durability and effectiveness to international law in a few important ways.
First, negotiation takes time, and time allows for thorough consideration. This may sound like a drawback to those looking for quick answers, but a state can use the period of negotiations to thoroughly calibrate its domestic laws and policies to the international obligations being negotiated before undertaking them. In the United States, there is a process in which the Department of State reviews every proposed international agreement before negotiations commence, during the course of the talks, and prior to conclusion of the agreement. This process includes a thorough legal review to ensure that the United States is in a position to implement the obligations that would be reflected in the final agreement.
The United States takes extremely seriously the rules reflected in the Vienna Convention on the Law of Treaties, which make it clear that unless otherwise agreed, a state may not invoke its domestic law as a justification for failure to perform its international treaty obligations. The U.S. government’s detailed internal legal review of all proposed agreements provides confidence that the United States will be able to implement any legal obligations it assumes. The United States does this for every one of the 200 to 300 international agreements into which it enters every year. It does so because it takes international law seriously and is committed to ensuring that it signs up only to obligations that it is in a position to implement fully.
This exacting approach to international law formation makes it more likely that a state will implement its obligations over the long run. The process of negotiation gives states the opportunity to take this approach.
Second, negotiation lends durability and effectiveness to international law because, in the process of striking a hard-fought and carefully negotiated bargain, states are often forced to compromise. Compromises in a negotiated deal mean that each side has gotten something it wants by agreeing to something the other side wanted. In many ways, the mutually reinforcing, reciprocal nature of a negotiated solution is a key enforcement mechanism of international law.
These two points are especially salient in the area of disarmament. States undertaking arms control and disarmament obligations use the negotiating process to ensure they are ready to comply with their obligations once undertaken, and the trade-offs reflected in the final deal lend strength and effectiveness to the treaty itself. Other approaches to disarmament, such as efforts to advance new rules of customary international law, would not enjoy the advantages inherent in a negotiated outcome. Similarly, a hypothetical nuclear-weapon-ban treaty would enjoy these benefits only if the states possessing nuclear weapons participated in its negotiation.
The second advantage to negotiation turns not on the implications of the negotiating process, but rather on the substantive nature of arms control and disarmament. A negotiated agreement is the tool that will allow states to address verification, an unglamorous but nevertheless essential element of disarmament.
States are more likely to uphold their disarmament obligations if they have confidence the other parties to the agreement will uphold theirs as well. This confidence can be achieved through the negotiation of verification measures, which are invariably technical and complicated.
The New Strategic Arms Reduction Treaty (New START) is an example. In one simple paragraph, totaling about 10 lines of text, the United States and Russia undertook to further reduce and limit their deployed strategic delivery vehicles and nuclear warheads. Yet, the treaty is 356 pages long.
The treaty’s length is one illustration of the way in which effective disarmament is about much more than an obligation to get rid of nuclear weapons. It is about establishing a stable and predictable relationship through data exchanges and other notifications. It is about mutually agreed rules that govern precisely how states are to eliminate their arsenals. Most of all, it is about ensuring the right to conduct intrusive on-site inspections to verify compliance with a treaty.
One example from New START illustrates how such a treaty is implemented in practice. The United States periodically provides Russia with data on U.S. strategic offensive arms covered by the treaty. Under the treaty, however, Russia is not expected to take the United States at its word. The treaty allows Russia to send inspectors to U.S. military bases and ensure that the data provided by the United States are accurate. Each side’s inspectors have access to some of the most sensitive national security sites in the other country.
There are countless rules negotiated by the two sides that strike a delicate balance between protecting their own security and giving the other side confidence that the treaty’s central obligations are being fulfilled. There are rules for how often inspections can take place, where inspectors can enter the country, and what routine activities must cease at a site after it has been designated for inspection. Once inspectors arrive at a site, there are rules that specify the parts of the site to which they have access, the equipment they can use to take measurements, the amount of time they can take to view particular items, and the angles from which they can view these items.
As with any treaty, technical issues invariably arise through the life of its implementation. New START provides a forum to discuss these types of issues twice a year through the treaty’s Bilateral Consultative Commission.
The hundreds of pages of detailed, painstakingly negotiated rules are not somehow incidental to effective disarmament; they are at the heart of effective disarmament. Yet, one does not hear those who advocate for a new rule under customary international law prohibiting nuclear weapons also advocating for a new rule under such law on the duration of an inspection, the angle of view for inspectors observing a weapons system, or the use of radiation detection equipment. Just hearing that sounds preposterous, but those provisions are key features of the inspection regime that makes New START an effective step in the ongoing process of disarmament. Such provisions often are difficult to negotiate, but are included because of their importance to the agreement. In the case of New START, the United States and Russia recognized that, without detailed provisions addressing verification, that short 10-line provision on reductions would not be meaningful international law.
Efforts to sidestep the negotiating process will not enjoy these benefits. The same is true of efforts to launch a negotiation without the participation of the states that possess nuclear weapons. Some have argued that the Mine Ban Treaty and the Convention on Cluster Munitions could serve as models for a future nuclear-weapon-ban agreement. Some even go so far as to argue that a future nuclear-weapon-ban treaty could generate customary international law prohibiting the possession of nuclear weapons, even if the states possessing nuclear weapons are not parties.
Yet, certain states continue to possess anti-personnel landmines and cluster munitions, which they assert are legitimate weapons with military utility, and have not joined the relevant treaties. This makes it impossible to demonstrate an extensive and virtually uniform state practice followed out of a sense of legal obligation, which is the test for customary international law formation. This would be even more true of a hypothetical nuclear-weapon-ban treaty to which no state possessing nuclear weapons was a party.
Further, the analogy between anti-personnel landmines and cluster munitions on the one hand and nuclear weapons on the other is imprecise and perhaps revealing. Although some states that previously had landmines and cluster munitions have undertaken legal obligations to eliminate them in treaties not containing intrusive verification procedures, the same does not seem likely to be true of nuclear weapons. The history of arms control demonstrates that states are unlikely to agree to prohibit nuclear weapons unless the prohibition is part of a carefully negotiated agreement containing exacting verification to ensure that treaty partners are complying with their obligations.
Concluding Thoughts
In conclusion, it is important to recognize and draw lessons from existing international law that effectively and verifiably addresses the problem of nuclear weapons. That body of law teaches policymakers to fully appreciate the significant value of negotiation in future international legal efforts toward disarmament. Negotiation lends durability and effectiveness to international law. Furthermore, careful and collaborative negotiation is the process through which states can reach agreement on the verification mechanisms that will likely be a critical feature of future arms control and disarmament agreements.
Paul Dean is the assistant legal adviser for nonproliferation and arms control at the U.S. Department of State. He previously was head of the U.S. Treaty Office. He also served as the U.S. delegation legal adviser for the New Strategic Arms Reduction Treaty (New START) and was the lead lawyer for the treaty’s ratification. This article is adapted from a speech the author gave at the Conference on Nuclear Weapons and Human Security in San Remo, Italy, on June 18, 2015. The views expressed in this article are those of the author and do not necessarily represent those of the U.S. government.
1. U.S. Department of Defense, “Nuclear Posture Review Report,” April 2010, pp. viii-ix, http://archive.defense.gov/npr/docs/2010%20Nuclear%20Posture%20Review%20Report.pdf.
2. Office of the Press Secretary, The White House, “Remarks by President Barack Obama—Hradcany Square, Prague, Czech Republic,” April 5, 2009, http://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Delivered.
3. Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports, July 8, 1996, pp. 262-263, http://www.icj-cij.org/docket/files/95/7495.pdf.