Singh: Non-Proliferation Law & Countermeasures: Their Function and Role in Determining the Status of a Special Regime

Sahib Singh (Univ. of Vienna - Law; Univ. of Cambridge) has posted Non-Proliferation Law & Countermeasures: Their Function and Role in Determining the Status of a Special Regime (in Nonproliferation as a Special Regime, D. Joyner & M. Roscini eds., forthcoming). Here's the abstract:

This paper examines the rhetoric of fragmentation, specifically the nuanced notion of ‘special regimes’ (as opposed to self-contained), in the context of non-proliferation law and rules relating to countermeasures. The general question which is asked and answered is: what is the extent to which non-proliferation law, and the special obligations and institutional mechanisms created by the governing treaties, enables, limits or otherwise modifies the right to resort to countermeasures under general international law? An extension of the question that Rapporteur Arangio-Ruiz asked in the ILC in 1992, this piece reviews the large of non-proliferation rules to answer three sub-questions: (a) who has standing to take countermeasures in relation to non-proliferation obligations; (b) when can a state take recourse to countermeasures under general international law, given the existence and content of special non-proliferation rules and institutional mechanisms; and (c) what countermeasures may a state take, given the nature of the regime, its practicalities and the nature of some of its obligations.

The finding of this paper is that non-proliferation law possesses distinct legal characteristics and distinct legal rules both of which impact, varyingly, on the resort to countermeasures in this area of law. First, the paper critiques the ILC’s direct and overly simplistic importation of the notion of ‘interdependent obligations’ from its work on the law of treaties, to its work on state responsibility, and specifically Article 42(b)(ii) of the ILC Articles on State Responsibility. This has led to a conflated understanding of which non-proliferation obligations, upon breach, enable a decentralized, third-state party, response in the form of countermeasures. The paper concludes, that under a strict reading of doctrine, only a very few substantive non-proliferation obligations, and certainly not the majority let alone the procedural and peaceful use obligations, would qualify as interdependent obligations. Accordingly, whilst non-proliferation law is traditionally considered susceptible to decentralized responses (as ample practice demonstrates), this is not consistent with a reading of the law. Second, the paper applies the Air Services Arbitration test to whether the existence of extensive institutional frameworks should condition the resort to countermeasures. It concludes that in the case of the majority of non-proliferation treaties, such frameworks and not mandatory pre-requisites. It further identifies specific obligations contained in the CWC and CTBT that govern the taking of collective countermeasures in the general interest. Finally, this section identifies specific non-proliferation rules which limit the taking of countermeasures that emerge out of the WTO regime and UN Security Council Resolution 1929 (2010). Third, and finally, the paper concludes that what countermeasures may be taken may be curtailed by the nature of certain non-proliferation obligations, whilst the need to liberalize current international legal doctrine may emerge from the question of urgent countermeasures in the area of non-proliferation law.

In short, the paper concludes, that despite evidence of special characteristics and special rules governing countermeasures, non-proliferation law cannot be considered a special regime. The paper does however seek to provide a pragmatic view of the way in which countermeasures may be taken, in accordance with the law, in the diverse area of non-proliferation law.