Report on the Second Round Table on Nuclear Weapons, Nuclear Energy and Non-Proliferation under International Law Held in London on 30th March 2012 in the Princess Mary Louise Room of the Oxford and Cambridge Club The ILA Committee mandate is, ‘to consider competing legal approaches to non-proliferation and regulating nuclear weapons within the contemporary context and ultimately to present options for future legal co-operation in this field’ (adopted by consensus in 2007).

This Second Round Table provided a forum for in-depth discussion of current challenges and evolving norms in the field of nuclear non-proliferation law. Presentations and discussions focused on developing publishable contributions for a book series on these areas, as well as providing concrete undertakings for the agreed Committee Work Plan. Open to all Committee Members and invited friends (see Annex for attendees), participants felt that the working method of small focused groups, together with subsequent reporting and correspondence, may ensure an open dialogue as well as provide transparency with the view to increasing participation which is essential for all work to be done in this field. Professor Jonathan Black-Branch, the Chair of the Committee, opened the Round Table by highlighting the importance of the Committee's work and thanking the participants for their commitment to these issues. He noted that legal, political and diplomatic issues relating to nuclear weapons continue to raise controversial debates regarding the status and effectiveness of international law in promoting non-proliferation and facilitating disarmament. Moreover, he felt there is a growing disconnect between identifying the key issues in question on the one hand, and having an open and constructive debate on the other. Despite the gravity of the concerns there appeared to be a lack of constructive discourse on the topic at the national levels and indeed in the international community as a whole. He emphasized the need for positive engagement, examining a wide range of views and involving individuals from across the political divide. A challenge for the Committee was to identify key issues and to promote constructive dialogue both locally and internationally. First Session: Nuclear Non-Proliferation: The Middle East WMD Free Zone Dr. Marco Roscini reported on international law issues arising from a WMD‐Free Zone in the Middle East: A nuclear weapon-free zone (NWFZ) in the Middle East was first proposed by the Shah of Persia in 1974 with the endorsement of the Egyptian Government. In 1990, Egypt proposed to broaden the scope of the zone and turn it into a WMD-free zone so to cover not only Israel’s alleged nuclear military programme but also the chemical and bacteriological weapons possessed by other Middle Eastern States. Negotiations have stalled since then but have recently gained momentum again when the 2010 NPT Review Conference Final Document called to the UN Secretary-General and the co-sponsors of the 1995 Middle East

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Resolution to convene a conference in 2012 on the establishment of a Middle East zone free of weapons of mass destruction. From a membership perspective, there seemed to be agreement that the WMD-free zone should cover the Arab League States and Iran and Israel. Some of these States are already Parties to the Pelindaba Treaty establishing a NWFZ in Africa (entered into force in 2009), with which the new treaty would have to be coordinated to avoid conflicting obligations. A more problematic issue was whether the proposed zone should cover any marine areas and, if so, whether they should include only the territorial waters of the States Parties (as in the Pelindaba Treaty) or also their exclusive economic zones (as in the Bangkok Treaty) or even international waters (as in the Tlatelolco Treaty). The problem was that several critical waterways should be included in the future zone (e.g., the Straits of Tiran, Hormuz and Bab al-Mandeb, as well as the Suez Canal), which might affect the navigational rights of nuclear ships of third States. Considering the high conflictual character of the region, the conditions for entry into force of and withdrawal from the treaty needed also be discussed, as well as the verification, settlement of disputes and enforcement measures in case of non-compliance by the Parties. With regard to verification in particular, in NWFZ treaties the principal verification element was a requirement for the application of IAEA safeguards (INFCIRC/153 or the broader INFCIRC/540). The WMD-free zone, however, would also extend to chemical and biological weapons: while chemical weapons verification could be ensured by inserting a reference in the treaty to the Organisation for the Prohibition of Chemical Weapons’ procedures, at present there was no verification system applicable to biological weapons. A special regional organization or organ for at least certain verification purposes would therefore be required, although it was not clear what organizational model is preferable. As to external States, India and Pakistan were de facto Nuclear Weapon States in close proximity to the zone; opening a Protocol on negative security assurances to their signature, however, would mean recognizing their nuclear status, which NPT parties were reluctant to do. Professor Robbie Sabel presented an Israeli legal perspective on this issue, addressing timing; participation; limits of the NPT’s effectiveness; and the need to include chemical as well as biological weapons, and delivery systems. He also stressed the role of non-State actors in the area and the need for verification. The following key issues were raised: Was it in the interest of all States in the region to have such a zone? The object of such a zone was to enhance security. The relevant UNGA Resolutions (see last A/RES/66/25 of 2 December 2011) called for the zone to be established by virtue of a treaty. That treaty should be negotiated and could not be dictated. Which States should be included? Iran? Pakistan? Perhaps India? Turkey? A mutually verifiable zone was required. Mutual verification had to be based on transparency and intimate relations between all States. This was even difficult to achieve than between the U.S. and the USSR. The Egyptian initiative for the zone to encompass all WMD had been welcomed by all States but there was no international precedent for such a zone. The presence of heavily armed non-State actors in the zone complicated issues. It also raised questions of State responsibility. The state of flux of key Arab States (Egypt, Syria, and Iraq) was a problematic factor. The NPT had played an important role in preventing proliferation but had not been effective against States that cheated (Iraq, Libya, Iran, and North Korea). The CTBT could be an important contingent. The process of negotiating such a zone might be used as an

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excuse by Iran to delay implementing SC Resolutions on its nuclear program. The agenda of the July 2011 Brussels EU Seminar on a ME WMD free zone was a useful reference point. Participants discussed the background for the consensus reached at the 2010 NPT Review Conference (Final Document, Part IV, Section 7), the different contexts and contents for other NWFZ treaties, and the need for cooperative (‘not too mechanistic’) solutions. Second Session: Securing the Treaty Regime Dr. Dieter Fleck, presenting an expanded Table of Treaties including other international instruments, commented on elements for a full assessment of relevant regulatory regimes. Considering the voluntary character of this branch of international law, the need to understand terms and commitments in their specific context, and difficulties of applying general rules treaty law for solving pertinent issues, he stressed the importance of continued efforts in this field including pertinent initiatives beyond the existing treaty system. He also addressed gaps in prescription deriving from factual behaviour of States and non-State actors as compared with the declared policy goals that are expressed in the three pillars of the NPT. Even a rather dense treaty regulation did not suffice to provide effective solutions. Problems of suspension of or withdrawal from relevant treaties called for continued attention. Cooperative solutions and activities of pacific settlement of disputes required continued elaboration. Professor Gabriella Venturini explained specific requirements for control and verification of multilateral non-proliferation treaties and relevant mechanisms, focusing on the Comprehensive Test Ban Treaty (CTBT) and the Proliferation Security Initiative (PSI). In her view, both examples demonstrated how cooperation among States developed with innovative features and mechanisms in the field of control and verification of non-proliferation. Since 1996 the CTBTO Preparatory Commission had been working as an independent (although provisional) international organization on the basis of a resolution adopted by the CTBT Signatories. The greatest part of the verification system (the International Monitoring System, the Global Communications Infrastructure, and the International Data Centre) was already operational. Its support was not limited to verification of nuclear testing; it also contributed to the mitigation of disasters by providing data for early warning and by measuring radioactivity in the atmosphere after nuclear accidents. Therefore States had made a good return on the investments undertaken for the build-up of the verification system. PSI, adopted at the end of 2002, was a non-binding multilateral framework in which presently about ninety participant States cooperated to detect and to deter traffic of prohibited, proliferation-sensitive materials to and from States and non-State actors by exchanging information and enhancing the action of national administrative authorities charged with controls on international transfers, including through maritime and air interdiction. Sea interdiction measures were based on a soft law instrument, i.e. the Statement on Interdiction Principles. The effectiveness of PSI interdiction measures, however, was difficult to assess due to a lack of transparency in its operation. Their legality under the United Nations Convention on the Law of the Sea (UNCLOS) was questionable since it allowed exceptions to the principles of freedom of navigation on the high seas and of innocent passage through the territorial sea.

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Participants stressed the relevance of treaty application and best practices in the regional context, commenting on various recent examples. The opinion was expressed that the legal basis for the provisional CTBTO laid in the Resolution Establishing the CBTO Preparatory Commission, a treaty in simplified form. Several options were envisaged to make the CTBTO permanent, either through the adoption of a protocol of provisional application of the CTBT (that would enable States parties to put into operation the whole verification system, including on-site inspections), or by means of an agreement de facto amending CTBT Article XIV to put into effect the CTBT immediately. The opinion was also expressed that a general norm prohibiting nuclear weapon test explosions was progressively taking shape in contemporary international law. Third Session: The Recent IAEA Report on Iran's Nuclear Program The Report by the Director General of the IAEA on ‘Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council resolutions in the Islamic Republic of Iran’ (IAEA GOV/2011/65 of 8 November 2011 gave rise to a number of observations. While Professor Daniel Joyner questioned the legal mandate of the IAEA for this Report, as explained in his opinion, posted earlier on JURIST – Forum, ‘Iran's Nuclear Program and the Legal Mandate of the IAEA’ (16 November 2011), http://jurist.org/forum/2011/11/danjoyner-iaea-report.php, Dr. Andreas Persbo stressed the importance of the IAEA Report for confidence‐building and effective verification. His approach, too, was based on a recent publication (http://www.vertic.org/media/assets/Presentations/Presentation_StAnna.pdf, 13 February 2012). Participants underlined the authority of the IAEA in this matter as deriving from its statute, applicable safeguards and implied powers, from SC Res 1929 (2010) and 1835 (2008), and the fact that all information was shared with Iran beforehand. They also addressed the obligation to cooperate as a relevant legal principle in this context. Fourth Session: Nuclear Disarmament Ulf Häußler presented an overview on nuclear strategies past and present, focusing on postCold-War developments, in particular with regard to the U.S., Russia, the United Kingdom, and France: While the arsenals held by the U.S. and Russia still seemed to account for 95% of the world's nuclear capability, new nuclear players had caused a qualitative change in the world’s nuclear environment despite their still limited quantitative dimension. In an era characterised by an almost comprehensive nuclear test ban, all Nuclear Weapon States had made significant efforts to modernise their warheads, delivery vehicles, and platforms, aiming at increasing diversification of their arsenals. Many of these developments had occurred after the ICJ's 1996 Advisory Opinion on the legality of the threat or use of nuclear weapons. Some Nuclear Weapon States had even lowered the threshold for a potential use of nuclear weapons in their relevant policies or doctrines. Beyond the Cold War notion of mutually assured destruction the notion of nuclear deterrence today had additional layers. In view of nuclear ambitions of ‘rogue States’ deterrence increasingly included concepts of 'unacceptable nuclear punishment', denial and the creation of disincentives. These new modalities of nuclear deterrence could create conflicts with the long-standing doctrine of extended deterrence. In

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particular, new challenges could arise for States extending their nuclear umbrella under an extended deterrence policy. While most Nuclear Weapon States had introduced certain limits to the use of their deterrent, including different kinds of negative security assurances and no first use policies, the broader goals of nuclear policy were supported by efforts associated with arms control and disarmament; non-proliferation; counter-proliferation; and supporting policies such as nuclear safety and nuclear supply management. More recently, missile defence also played an increasing role. The U.S. decision to terminate the ABM Treaty had reinforced the waning of mutually assured destruction. Key elements of nuclear posture, namely capabilities; command and control; communications; demonstration of capabilities; and the modernisation of nuclear arsenals had to be revisited. These developments as well as the advent of new Nuclear Weapon States called for an in-depths review of post-1996 nuclear policies, strategies, and doctrines. Andrew Barlow addressed current challenges for nuclear disarmament. He identified (1) current strategic mind-sets, i.e. the fact that many remained unconvinced about the merits of nuclear disarmament as things stand; (2) underlying political conflicts which often were behind these mind-sets; (3) technical arms control difficulties over what exactly would constitute nuclear disarmament, over transparency and verification issues, and over precisely how to get from here to there; (5) institutional difficulties about ensuring that effective arrangements were in place to secure compliance with any agreement to eliminate nuclear weapons and to provide an assurance of peace and security in their absence; and (6) the imperfections of humanity which meant achieving any ideal world was always fraught with difficulty. He concluded by arguing that, while we had to be realistic about the challenges, this did not mean we should not keep on striving to find ways of overcoming them. Dr. Rebecca Johnson considered the deficiencies in the current NPT regime and presented an analysis of civil society and governmental strategies aimed at reframing the security debate on nuclear weapons and accelerating progress towards nuclear disarmament. The NPT’s institutional weaknesses had left the door open for nuclear weapons to be modernized, proliferated and spread, with especially destabilizing consequences for fragile States and insecure regions like South Asia, Northeast Asia and the Middle East. The norms, rules and institutions of nonproliferation did not function against the acquisition of nuclear weapons as intended because under the NPT the possession of nuclear arms still carried high domestic and international value, whether in terms of insurance, deterrence, power projection, prestige or freedom of action. Recalling approaches taken under the Biological and Chemical Weapons Conventions and more recent developments in which humanitarian concerns had been asserted as drivers for disarmament action, bringing about the 1997 Landmines Convention and the 2008 Convention on Cluster Munitions, Dr. Johnson highlighted recent developments in the 2010 NPT Review Conference. Drawing on civil society research on the humanitarian consequences of nuclear weapons, the speaker identified trends towards establishing a more effective multilateral regime to ‘achieve and maintain a world without nuclear weapons’, including treaty negotiations to ban nuclear weapons that would be applicable to all States. Such a ‘nuclear weapons convention’ – whether negotiated as a standalone treaty or prohibition framework with technical and verification protocols and schedules for eliminating existing arsenals, would be more effective than the partial non-proliferation

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regime and create a stronger nuclear weapons regime more in line with international humanitarian law and the principles of non-discrimination, reciprocity and universality (see also http://www.acronym.org.uk/). Participants recognized these different approaches as relevant not only for future policy but, more particular, also for pertinent legal contributions. They also took note of current activities of the Red Cross and Red Crescent movement (see Background Document prepared by the ICRC and the Resolution adopted by the Council of Delegates on 26 November 2011, http://www.icrc.org/eng/resources/documents/report/nuclear-background-document-2011-1126.htm). Fully realising the cumulative scale of existing challenges the need to counter them was unanimously shared. Closing Remarks Professor Black-Branch conveyed his sincere thanks to the participants for the high level of discussion and highlighted the superb setting for such an important meeting in the Princess Mary Louise Room at the Oxford and Cambridge Club. He acknowledged the differences in approaches to nuclear regulation and disarmament issues and the divisions that exit in the international community. In this light, he stressed the importance of working together despite these divisions and the need to find solutions to such problems where often there are competing views and interests. Professor Black-Branch reflected on changes in a contemporary world with new emerging economies, recognizing regional re-alignment of power both economically and politically. In this light, he emphasized that experts working together on these issues must recognize the common good, preserve shared values and build consensus on divisions for the future in an ever-changing world. ILA Committee Meeting

A meeting of the ILA Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law was convened subsequent to the Round Table to discuss further activities. Professor Black-Branch opened the Committee Meeting making reference to the Mandate of the Committee and its forming the basis of the Work Plan agreed in August 2011. It was acknowledged that it would not be possible for all Members to attend such meetings due to the nature of its design of having a wide international membership. The Chair would consider methods to have broader involvement though various means if members could not attend meetings. Committee Work Plan The main part of the meeting was to discuss further research tasks. It was agreed to allocate the work to be done to individual Members under the agreed Work Plan of the Committee by making use of recent interests and commitments expressed by some Members and Friends as listed below:

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B. Non-Proliferation of Nuclear Weapons 1. The Obligations of Nuclear-Weapon States (Professor Masahiko Asada). 2. The Obligations of Non-Nuclear-Weapon States (Dr. Jana Hertwig). 3. Nuclear-Weapon Free Zones (Dr. Marco Roscini). 4. The Threat of Weapons of Mass Destruction in the Hands of Bon-State Actors (Dr. Sascha-Dominik Bachmann). 5. Relevant Other Branches of International Law (Professor Jonathan Black-Branch). 6. Voluntary Activities (N.N.). 7. Control of Illicit Trafficking (Dr. Andreas Persbo). 8. Further Issues (N.N.). C. The Use of Nuclear Energy for Peaceful Purposes 1. The Right to Nuclear Energy (Professor Dan Joyner). 2. Safety Standards for Nuclear Power Stations (Professor Dan Joyner). 3. Liability for Injurious Consequences (Professor Dan Joyner). 4. Nuclear Waste Management (Professor Dan Joyner). D. Nuclear Disarmament 1. The ICJ Advisory Opinion Revisited (Dr. Andreas Persbo). 2. The Role of Nuclear Weapons (Ulf Haeussler). 3. The Meaning of Article VI (Professor Jonathan Black-Branch). 4. START and Missile Defence (Ulf Haeussler). 5. Perspectives for Nuclear Disarmament (N.N.) It was suggested to address any proposals and inquiries to these experts with info copies for the Committee Chair Jonathan Black-Branch and the Rapporteur Dieter Fleck. It was well understood that this distribution which should facilitate research activities and transparency within the Committee could not be considered firm or even exclusive. All Members and Friends of the Committee were encouraged to freely participate in exchange and discussion. It was decided that a widest possible attendance the up-coming ILA Conference in Sofia (2630 August 2012) should be encouraged. The Committee would present the Work Plan and the distribution of the work inviting participation from others who may be interested in joining the group to assist with their work. The Conference could offer further opportunities to exchange on the Committee’s activities and gain support from those national branches which are not yet represented on our Committee. In relation to further Round Tables, conferences or events, participants agreed that it would be possible to arrange other venues for progressing the work of the Committee. Such meetings would be subject to the Chair's guidance and approval as a Committee event. Members wishing to assist with future events should contact the Committee Chair. Professor Jonathan Black-Branch, Chair

Dr Dieter Fleck, Rapporteur

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Annex: List of Participants Professor Jonathan Black-Branch, Head of School of Law, University of Bedfordshire, ILA Committee Chairman, [email protected] Dr. Dieter Fleck, former Director International Agreements & Policy, German Ministry of Defence, ILA Committee Rapporteur, [email protected] Dr. Sascha-Dominik Bachmann, Senior Lecturer in Law, University of Portsmouth, ILA Committee Member, [email protected] Andrew Barlow, Reserach Analyst, Counter-Proliferation Department, Foreign and Commonwealth Office, [email protected] Ulf Häußler, Assistant Director, Security Policy Section, German Ministry of Defence, ILA Committee Member, [email protected] Dr. Rebecca Johnson, Executive Director & Co-founder of the Acronym Institute and editor of Disarmament Diplomacy, [email protected] Professor Daniel Joyner, University of Alabama, ILA Committee Member, [email protected] Dr. Patricia Lewis, Research Director, International Security, The Royal Institute of International Affairs, London, [email protected] Dr. Andreas Persbo, Executive Director VERTIC (the Verification Research, Training and Information Centre), London, ILA Committee Member, [email protected] Dr. Marco Roscini, Reader in International Law University of Westminster, ILA Committee Member, [email protected] Professor Robbie Sabel, Hebrew University, Jerusalem, [email protected] Professor Gabriella Venturini, Università degli Studi di Milano, ILA Committee Member, [email protected] Matthew Harries, PhD Candidate, Kings College London, [email protected]