By Paul Dean

The Role of Negotiation in

International Arms Control Law

A
s part of the ongoing discussion international disarmament law. Some
states or nongovernmental groups
about the role of international law might wish to argue for a customary
international legal rule prohibiting the
in the future of arms control and possession or use of nuclear weapons
and would perhaps seek to base that
disarmament, this essay argues that negotiated argument on a nuclear weapons ban
treaty to which no state possessing
agreements, rather than attempts to advance nuclear weapons is a party. Yet,
rules prohibiting nuclear weapons
new rules of customary international law, offer would be nearly meaningless without
accompanying detailed rules addressing,
critically important advantages in the area of for example, verifiable methods of
elimination, access for inspectors to
disarmament. countries’ most sensitive national
security sites, and regular exchanges of
information.
Negotiated agreements uniquely complicated and interlocking web of Viewed in this light, it becomes clear
serve the long-term interests of a stable verifiable agreements encompassing that the path for successful, meaningful
international legal system and are the nonproliferation, disarmament, and arms control and disarmament is
only way to address a crucial aspect of peaceful use—the three all-important through careful negotiations involving
meaningful disarmament: verification. pillars of the nuclear Nonproliferation the states that actually possess nuclear
Treaty (NPT). Existing international law weapons. Taking that seriously may
Background governing the use of force would apply mean the process of international law
ARMS CONTROL TODAY September 2015

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
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
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.

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.
22
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

U.S. Mission Geneva/Eric Bridiers

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 Anatoly Antonov of Russia and Rose Gottemoeller of the United States (with back
agreement, after the section of the to camera), the heads of their respective countries’ negotiating teams for the New
Atomic Energy Act that spells out the Strategic Arms Reduction Treaty, sit across the table from each other at the Russian
mission to the United Nations in Geneva, where many of the negotiating sessions
requirements for such agreements. These
were held, on April 12, 2010, four days after the treaty was signed.
agreements fulfill the promise of the
NPT to promote peaceful uses of nuclear
energy while limiting the proliferation verifiable provisions that ensure material circumstances to defend the vital interest
of nuclear weapons. They require or technology is used for exclusively of the United States or its allies and
U.S. nuclear trade partners to agree peaceful purposes. One example is the partners.”1 In addition, it is the policy
to strict nonproliferation conditions requirement that material subject to of the United States “to seek the peace
on U.S.-origin nuclear material and a U.S. 123 agreement be safeguarded and security of a world without nuclear
equipment or material derived from it, in perpetuity, even if the agreement is weapons,” as President Barack Obama put
including consent rights on storage and terminated. it in his Prague speech.2
ARMS CONTROL TODAY September 2015

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
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
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,
23
 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 process of negotiation is perhaps an
underappreciated aspect of promoting adherence
to and respect for international law.
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. legally binding.
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.
ARMS CONTROL TODAY September 2015
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
24
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
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.
© International Campaign to Abolish Nuclear Weapons. All rights reserved.
A sign in Geneva in April 2013 calls for a ban on nuclear weapons.
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. disarmament.
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
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.
ARMS CONTROL TODAY September 2015
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
25
 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
[T]he mutually reinforcing, reciprocal nature
of a negotiated solution is a key enforcement
mechanism of international law.
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
ARMS CONTROL TODAY September 2015
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
26
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.
ENDNOTES
1. U.S. Department of Defense, “Nuclear
Posture Review Report,” April 2010, pp.
viii-ix, http://archive.defense.gov/npr/
docs/2010%20Nuclear%20Posture%20
Review%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.
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