NPT Article VI

(IAEA, guardian and enforcer of the much sinned-against NPT)

Well, the good news is that the trial is over, and normal service is being resumed; the present status flag will move from Vermont, but I expect that it will be back reasonably soon.

As I mentioned a week or so ago, some new work is being kicked off on the British replacement of Trident, with an initial focus on the legal issues surrounding the strange case of the extra comma. Let's pick up the analysis of the Nuclear Non-Proliferation Treaty (NPT) Article VI from where we left off - looking at Daniel Joyner's new book "Interpreting the Nuclear Non-Proliferation Treaty". Joyner's book came in for some reasonably trenchant criticism, which in my view makes it all the more interesting.

It is.

Joyner's argument is beguilingly based on the Vienna Convention on the Law of Treaties (VCLT) - the Treaty that governs how to interpret Treaties. His (altogether unremarkable) conclusion is that a straight reading of the NPT and it's negotiating history is that as a document it takes the form of three pillars - non-proliferation (Articles I, II and III), peaceful use of nuclear energy (Articles IV and V) and disarmament (Article VI). So far, so conventional. What is more radical is the proposition that the NPT was balanced between these pillars, and that Article VI is just as important as Articles I-III. Joyner's most radical work is in his interpretation of what Article VI actually means (it's that pesky comma again).

But that comes later. Joyner's starting point is the nature of the NPT itself - a contractual rather than merely law-making  treaty. In this, Joyner comes to the conclusion that it is the contractual nature of the NPT that provides a key insight into its interpretation; that in making the treaty contractual on a range of differing obligations, it becomes clearer that the Nuclear Weapons States (NWS) owe disarmament obligations to the Non-Nuclear Weapons States (NNWS) in return for the NNWS not pursing their own nuclear weapons programmes (and in the process, locking in their strategic disadvantage / inferiority).

Article VI

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.

Joyner goes on to make a strong case that Art VI commitments are not, pace the Bush Administration's Christopher Ford, merely a commitment to pursue negotiations on nuclear disarmament, but that the good faith test pushes things on to a requirement to conclude a nuclear disarmament treaty separately to the general and complete disarmament treaty that is also envisaged in the NPT.

This view also takes the state practice of the NWS should - it would appear on the basis of self-interest - to be weighed against that of the NNWS, and largely discounted because of the self-interest inherent in their position. I don't think that it's possible to go this far. An with respect, I don't see how the the ICJ's Advisory Opinion in the 1996 Nuclear Weapons Case from paragraph 99 onwards can conclude that

"... the legal import of that obligation goes beyond that of a mere obligation of conduct ; the obligation involved here is an obligation to achieve a precise result - nuclear disarmament in all its aspects - by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith."
Inasmuch as if this was the construction that the drafters had intended, then they could simply have drafted Art VI thus:

Article VI

Each of the Parties to the Treaty agrees to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.

The point is that they didn't. Much better, I think is the 2005 Joint Opinion by Professor Christine Chinkin at LSE and Rabinder Singh QC, formerly of Matrix Chambers, who note in paragraph 69 that 

69. The Treaty obligation is thus not to disarm as such, but a positive obligation to pursue in good faith negotiations towards these ends, and to bring them to a conclusion. Good faith is the legal requirement for the process of carrying out of an existing obligation.... 

leading them to conclude in paragraph 74: 

74. Enhancing nuclear weapons systems, possibly without going through parliamentary processes, is, in our view, not conducive to entering into negotiations for disarmament as required by the NPT, article VI and evinces no intention to 'bring to a conclusion negotiations leading to nuclear disarmament in all its aspects'. It is difficult to see how unilateral (or bilateral) action that pre-empts any possibility of an outcome of disarmament can be defined as pursuing negotiations in good faith and to bring them to a conclusion and is, in our view, thereby in violation of the NPT, article VI obligation. 

This instinctively feels like the best balance of the difficult negotiating process and subsequent history of the NPT. And it would make a UK Trident replacement a violation of the NPT, and with it a violation of international law.

Interesting times!

The strange case of the extra comma

 

(Commas are important. And box two contains a chameleon; do keep up at the back.)

Grammar? Oh dear.

At the risk of dredging up bad memories for an entire generation, (myself included), I'm sorry to confirm that our 4th-grade teachers were correct: grammar matters. And it is especially important to lawyers when it comes to interpreting legislation and Treaties. For international law, the sacred text in interpreting treaties is itself a Treaty - the 1969 Vienna Convention on the Law of Treaties (VCLT) which came into force in 1980.

The grammatical challenge du jour is with the 1968 Nuclear Non-Proliferation Treaty (NPT). NPT Article VI reads:

"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control."

This is a very long sentence. With a single comma.

It could be interpreted in a couple of ways:

First, it could mean that State Parties are are obliged to pursue good faith negotiations on ceasing the nuclear arms race, and nuclear disarmament as well as pursing a treaty on general disarmament under strict and effective international controls.

Second, it could mean that the State Parties are obliged to pursue good faith negotiations on ceasing the nuclear arms race, and nuclear disarmament within the context of a treaty on general disarmament under strict and effective international controls;

Grammatically, the first interpretation makes more sense than the second, because the comma separates the first clause

"negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament,"

from the second

"and on a treaty on general and complete disarmament under strict and effective international control"

making it clear that the two are separate notions.

This construction would mean that the Nuclear Weapons States (NWS) were obliged to disarm independent of a treaty on general disarmament. Under this understanding, it would hard to argue that spending £30bn - £100bn between now and 2042 on a replacement for Trident would qualify as "nuclear disarmament", and that as such, such a purchase would be in direct contravention to the UK's international obligations, and would therefore be illegal as a matter of British law.

Unsurprisingly, perhaps, the UK Government favours the second interpretation, tying as it does nuclear disarmament to a future treaty on "general and complete disarmament". As this happy state of affairs is yet to occur (CCW, CWC and BWC notwithstanding) - and the use of the modifier "complete" sets the bar extremely high - so the logic goes, there is no requirement for nuclear disarmament, however desirable this may be. Conveniently, the second formulation does not make it illegal to procure a replacement to the existing UK Trident SLBM system.

(Minimum deterrence looks a lot like maximum deterrence but with fewer missiles.)

But what's interesting is that over the last decade or so, UK Governments have clung to their tortuous grammatical interpretation whilst publicly demonstrating that the UK is making reductions in its nuclear forces (even as they spend £1bn per annum to reinvigorate the AWE Aldermaston nuclear weapons design and production infrastructure). This appears to be an odd halfway house, as it attempts to demonstrate that the UK is moving towards nuclear disarmament whilst retaining what Whitehall describes as a "minimum credible deterrent".* Moreover, to scrub up its disarmament credentials, the UK draws attention to its ratification of the Comprehensive Test Ban Treaty (CTBT), and the fact that irrespective of the stalled Fissile Material Cut-Off Treaty (FMCT), the UK is no longer producing fissile material for military purposes.** 

Indeed, the UK Foreign Office goes so far as to describe the impact of the 2010 Strategic Defence and Security Review (SDSR) thus:

"In this Review the Prime Minister, David Cameron, and Deputy Prime Minister, Nick Clegg, committed the UK to maintaining a credible deterrence by:

• reducing the number of warheads onboard each submarine from 48 to 40
• reducing our requirement for operationally available warheads from fewer than 160 to no more than 120 
• reducing our overall nuclear weapon stockpile to no more than 180 
•  reducing the number of operational missiles on each submarine

These reductions illustrate that whilst the UK believes in maintaining a minimum credible deterrent this is kept constantly under review and is fully in line with our international obligations under the Nuclear Non-Proliferation Treaty."

But it is only in line with the UK's "international obligations under the Nuclear Non-Proliferation Treaty" if the second, grammatically tortuous, interpretation of NPT Art VI is accepted. 

So who is right? And does it matter?

On which interpretation is correct, I'm not sure yet. But it certainly matters, as if the first interpretation is correct, then the UK Government could find themselves explaining a breach of their international obligations. Against this backdrop, I'm very much looking forward to reading Daniel Joyner's new book, especially after some of the critical reviews. I'll write again when I've read it and reflected.

* As mentioned before this blog does not accept the bald assertion that the UK Trident system currently deters anyone or anything, and therefore doesn't use the term.

** The cynics may observe that it's easy to be in favour of a narrow FMCT if you've got all the highly enriched nuclear fuel that you would ever need on hand, especially if it is already outside of IAEA safeguards.