Well, I am still sitting on a post on the new NSG guidelines — I remain genuinely conflicted about whether the Administration got enough or should have walked away.
Our debates, public and private, have been entirely about whether the US got enough in terms of restricting supply. Dan Joyner argues that, perhaps, we got too much.
It is not a view I share at all — in fact, I couldn’t disagree more — but the natural contrarian in me thought it was important to put Dan’s carefully argued position into the public debate. Plus, it is a good opportunity to flog Dan’s new book, Interpreting the NPT.
The NSG Has Left the Building – a Lawyers View
Dan Joyner is a professor of law at the University of Alabama Law School.
I had no idea how prophetic I was. For the past three years or so I have been writing a book on interpretation of the NPT. The book was just published last month by Oxford University Press (buy your copy today!)
In the book I consider how the rules of the 1969 Vienna Convention on the Law of Treaties apply to interpretation of the NPT, and what the result of the application of those rules should be. The focus of the book is on interpreting the most controversial provisions of the NPT, i.e. Articles I, II, III, IV & VI, including their interactions with each other, in a holistic way. Now, before you stop reading because you think you smell scented candle in the room, I mean holistic here in the sense that the Vienna Convention on the Law of Treaties means holistic. Not in the way Ravi Shankar means it. What I mean is interpreting provisions of a treaty with reference to their context within the treaty, as well as with reference to the overall object and purpose of the treaty.
So as part of this analysis of treaty interpretation, I looked back systematically at statements made by officials of both NWS and NNWS at NPT meetings (PrepComs and RevCons) since the end of the Cold War, in order to identify trends in legal interpretation of the NPT, and resulting levels of policy prioritization as among the three principled pillars of the NPT.
What I found was that there was a clear trend, beginning in 1998 and reaching fever pitch during the Bush administration, of a disproportionate emphasis and prioritization in NWS official statements upon the non-proliferation pillar of the NPT, and a marginalization of the disarmament and peaceful use pillars. This unbalanced orientation of policy continued at least through 2008, when some aspects of US and other NWS national policies changed significantly, particularly on matters of disarmament.
But going back to the decade-long disproportionate prioritization of nonproliferation over peaceful use and disarmament, I concluded in the book that this skewing of policy to marginalize two of the principled pillars of the NPT was not in harmony with the fundamental object and purpose of the treaty, which was comprised of all three principled pillars equally. I can’t make out the arguments in detail here – it took me a whole book to do it. But this is the summary.
I also concluded that this general policy prioritization, and its specific policy results, were justified by US officials in particular on the basis of erroneous interpretations of NPT provisions. A few of these erroneous interpretations were the following:
1. The non-proliferation pillar of the NPT is the principal, primary, central or core principled pillar of the treaty, and the other two pillars are of secondary or lesser status and weight.
2. The NPT Article IV right to peaceful nuclear cooperation is an unfortunate “loophole” in the treaty; and that right should be legally interpreted as a limited, circumscribed and even conditional right, if a legal right at all. Properly understood, in fact, its more a privilege than a right.
3. Whatever the character of the right in Article IV, its scope certainly does not extend to sensitive fuel cycle technologies, including ENR technologies.
So what were the specific policy results of this general policy prioritization, as justified by these erroneous legal interpretations during the 1998-2008 decade? They included a number of policies and efforts by NWS (sometimes attempting to utilize the functionality of the NSG to coordinate them) aimed at circumscribing and conditioning the right of NNWS to nuclear fuel cycle technologies, and at changing the conditions under which supplies of nuclear technologies are made to NNWS by NWS and other supplier states.
Specifically, these proposals and efforts included:
1. Requiring NNWS accession to the IAEA Additional Protocol as a condition of supply;
2. Conditioning supply and recognition of rights to nuclear technologies on compliance with an IAEA Comprehensive Safeguards Agreement; and
3. Pushing for the exclusive sourcing of nuclear material by NNWS from a multilateral fuel bank or a multinational enrichment center as a condition of supply.
Through rigorous and systematic application of the interpretive principles of the Vienna Convention on the Law of Treaties, I concluded in the book that each of these policies/efforts were actions in unlawful circumscription of the right of NNWS to peaceful nuclear activities in Article IV(1). Each of these efforts were manifestations of non-recognition of the full and proper scope of the inalienable right in Article IV(1), and effected a prevention of trade which should have been allowed between private entities in NWS and NNWS developing states, in exercise of their right to peaceful use of nuclear materials and technologies.
These actions were arguably also in breach of the Article IV(2) obligation upon supplier states, who are therein obligated to “facilitate . . . the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy,” and “cooperate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty.”
So wherefore my lauding of my prophetic soul above? Well, when I first laid eyes on the new NSG guidelines on ENR transfers adopted last week, what I saw was the whole Bush era heritage of disproportionate prioritization of the nonproliferation pillar, marginalization of the peaceful use pillar, erroneous interpretations of the NPT, and specific policies based thereon that I had spent the last three years critiquing and decrying in my book, coming home to roost in the guidelines of the NSG.
As many readers of this blog have, I have been studying the NSG for a long time. I know its history and its original and evolving raison d’etre. The original purpose of the NSG was as an informal grouping of supplier states who wished to flesh out and clarify the rules regarding nuclear exports in Article III of the NPT, and in particular Article III(2). The NSG’s guidelines and trigger list were adopted, and modified over the years, to do just that, and to coordinate national laws and policies on nuclear single and dual use exports in accordance with these standards.
Developing, nuclear recipient states, as represented by the NAM, have objected to the existence and work of the NSG from its beginnings. They have always considered it an illegitimate supplier state cartel, with no mandate from or related to the NPT. They have always argued, and with even greater fervor after the 2002 adoption by the NSG of dual use export guidelines, that the NSG’s guidelines imposed higher and stricter barriers to civilian nuclear trade than the rules of the NPT provided for. The NAM argument essentially goes back to the (correct) idea that the NPT was a quid pro quo grand bargain, and that in increasingly restricting civilian nuclear exports from flowing to developing NNWS, supplier states have through the NSG guidelines unilaterally altered that grand bargain, leaving NNWS with considerably less than they originally bargained for, and thus considerably less in the way of incentive to remain within the NPT grand bargain going forward.
I think that these NAM arguments have gained new and unprecedented validity with the adoption of the new NSG guidelines on ENR transfers, amending paragraphs 6 and 7 on enrichment and reprocessing technology.
The gap between the principles of the NPT in Articles III and IV on the one hand, and the NSG guidelines on the other, has never been wider than it is now. The guidelines now require, as a condition of supply of ENR technologies, not only membership and full compliance with the NPT, but also full compliance with the recipient state’s IAEA Comprehensive Safeguards Agreement, a complete lack of any suspicion whatsoever by the IAEA Board of Governors of any noncompliance with the NPT and a CSA, dutiful reporting to the UNSC 1540 Committee, an end user agreement with the supplying state, and unless it meets the exception in paragraph 6(c), adoption of an IAEA Additional Protocol.
And even then, suppliers will have to have a think about supplying to you, based upon a general “policy of restraint.”
I’m sure I’ll be writing another piece somewhere about the diabolically badly conceived and drafted legal language in paragraph 6(a)(ii) of the new guidelines (OMG). But the point I want to make in this post is that with these newly revised guidelines on ENR technology supply, the NSG has moved further than it ever has been away from the principles of the NPT, and has given much greater validity to classic NAM arguments about the nature of the NSG as an illegitimate, politicized supplier cartel that has no principled connection to the NPT, and that in fact is unilaterally (as a group of supplier states) altering the grand bargain that NNWS agreed to when they signed onto the NPT back in 1968.
Proponents of the new NSG guidelines may see them as a victory for nonproliferation. And they are. But that victory may be Pyrrhic if it results in further undermining the fragile NPT grand bargain that is the cornerstone of international cooperation on nuclear energy.