This chapter considers whether and to what extent secondary sanctions that contravene commitments under trade and investment agreements may be justifiable under security and general exceptions. It analyses the jurisprudence of various international courts and tribunals on the matter, while focusing on the text of General Agreement on Tariffs and Trade (GATT) Articles XX and XXI (which many international economic agreements replicate or adjust). For non-self-judging security exceptions, it concludes, justifiability hinges on the design of sanctions, their targeting of ‘military’ products or services, and the demonstrability of an essential security risk for the sanctioning party. Secondary sanctions might also be justifiable under general exceptions, which feature finer legal criteria to permit measures that pursue legitimate objectives while controlling their abusive application. The chapter considers the enforcement-related exception of GATT Article XX(d), as well as the public morals exception of GATT Article XX(a), which was invoked to justify sanctions in United States – Tariff Measures on Certain Goods from China. As with other measures at the intersection between economic relations and security, the assessment of secondary sanctions under these exceptions becomes particularly challenging in light of their usual objective: restricting trade or investment vis-à-vis specified states, on the basis not of impersonal objectives but of a state’s perception of its essential security interests.

This contribution examines the possibilities for individuals to access remedies against potential violations of their fundamental rights by EU actors, specifically EU agencies’ deployment of artificial intelligence (AI). Presenting the intricate landscape of the EU’s border surveillance, the chapter sheds light on the prominent role of Frontex in developing and managing AI systems, including automated risk assessments and drone-based aerial surveillance. These two examples are used to illustrate how the EU?s AI-powered conduct endangers fundamental rights protected under the EU Charter of Fundamental Rights. Risks emerge for privacy and data protection rights, non-discrimination, and other substantive rights, such as the right to asylum. In light of these concerns, the chapter then examines the possibilities to access remedies by first considering the impact of AI uses on the procedural rights to good administration and effective judicial protection, before clarifying the emerging remedial system under the AI Act in its interplay with the EU’s existing data protection framework. Lastly, the chapter sketches the evolving role of the European Data Protection Supervisor, pointing out the key areas demanding further clarifications in order to fill the remedial gaps.

Armed aggression and geopolitical rivalry are realities of today's international environment. Whether because of these realities or in spite of them, negotiation toward nuclear arms control has faded from the scene. My purpose in this short book is to suggest practical steps that the US and its allies might take to revive the negotiated approach to nuclear arms control that, in the past, allowed important gains in national security and international stability. I offer an argument for realists in particular to return to nuclear arms control.

As reasonable as it sounds to say that they need to negotiate if nuclear-armed countries are to achieve arms control, the negotiated approach to arms control has come under threat. A new disarmament treaty, the Treaty on the Prohibition of Nuclear Weapons (TPNW), attracts support in many quarters, and it calls for immediate elimination of nuclear weapons without negotiation. The US and like-minded countries need a good faith effort toward nuclear arms control, because, without it, unrealistic calls for unnegotiated disarmament will complicate the already-difficult search for sustainable defense and security.

An earlier generation of strategists had the insight that nuclear arms control, in the world as it exists, requires negotiation. In the NPT, the Treaty on the Non-Proliferation of Nuclear Weapons, realists fashioned a negotiated approach, supporting a search for verifiable limits on nuclear arms, and, by so doing, they ensured that nuclear-weapon states would preserve the opportunity to achieve progress toward the eventual disarmament that was, and remains, a shared goal. It is timely to consider how to renew the negotiated approach.

As much as it entails coming to the table to explore possible solutions, a pledge to negotiate also entails refraining from conduct that pre-judges the outcome of negotiations. China refuses to come to the table and, having embarked on a largescale nuclear weapons buildup, pursues a strategic fait accompli before negotiations have even begun.

Meanwhile, engagement with the NPT in the US is at a low ebb. Important voices nevertheless continue to champion this cornerstone treaty. As the US and its nuclear-weapon allies enter a season of political transition, I think it timely to turn our minds to overcoming the impasse at which nuclear arms control now stands.

This book is not about the history of nuclear arms control. It is instead about its possible future. A page of history nevertheless helps us understand where nuclear arms control might go and to appreciate why, as the title of this book suggests, nuclear arms control at the moment is in peril.

On July 16, 1945 the US tested the first atomic bomb. On August 29, 1949 the USSR tested its first atomic bomb. Finding themselves in a world in which two antagonists possessed weapons of enormous destructive power, political leaders began to consider possibilities for negotiating arrangements that might place those weapons under agreed limitations and controls. Progress in the first decade was unsteady. Countries reached a modest milestone in 1957 when they created the International Atomic Energy Agency, the IAEA, a multilateral organization intended to support the peaceful use of nuclear technology and, ‘so far as it is able’, to ensure that nuclear technology transferred to countries without nuclear weapons is used only for peaceful ends. The US, the USSR, and the UK— the last having tested its first atomic bomb in 1952— at length agreed to stop nuclear tests in space, the atmosphere, and oceans. However, the Partial Test Ban Treaty, which the US, the USSR, and the UK adopted in 1963, did not place any other limits on the nuclear arsenals of these three countries, and it placed no obligation whatsoever on other countries. As for the IAEA, its governing statute left it to individual states to decide how, and whether, they would engage with the new Agency. No legally binding instrument with widespread membership did anything in itself to limit countries’ freedom to develop or acquire nuclear weapons. With France having tested its first atomic bomb in 1960, and China having received technical support from the USSR to expedite its own development efforts— China would test its first bomb in 1964— concern grew that the spread of nuclear weapons was only beginning. US President John F. Kennedy, in 1963, the year of the test ban treaty, apprehended that in another decade or so as many as 25 countries would have nuclear weapons.

The NPT today is an object of ambivalence among realists. It has not always been, however. At the start, realists had the insight that stability is the sine qua non of security in an age of nuclear-armed powers, and the realists’ insight inspired states to draft the NPT the way they did. States drafted the NPT to avoid a worst-case outcome— an escalating rivalry between nucleararmed states from which they would never escape. Article VI of the NPT, by requiring that states pursue a negotiated settlement of the challenges of nuclear arms, ensured that states preserve the chance to arrest the rivalry. By placing the emphasis on the elusive goal— effective measures to achieve arms control— Article VI, moreover, pledged states to negotiate arms control agreements that might actually work in the world as the world exists.

Realists resiled from the NPT when they began to perceive that the prescriptions that disarmament activists were drawing from the NPT would impede a rational and security-minded approach to nuclear arms control. The NPT, however, is no longer the only treaty that affects nuclear arms control.

We live now in a world of two treaties. On January 21, 2021, the eve of entry into force of the TPNW, the Lord Bishop of Coventry speaking in the UK House of Lords said that ‘as of tomorrow the TPNW will be no less a reality for the UK than for countries that support it.’ He forecast that the TPNW's ‘underlying humanitarian motivations will loom large over any future discussion of our non-proliferation responsibilities.’ As a matter of international law, to a country that is not party to a treaty, the treaty is less a reality than to a country that is, but the Lord Bishop was not making a lawyer's point. The TPNW has attracted the support of the disarmament community and of many governments. If the support continues to grow, then the TPNW soon will be the focal point of discourse on nuclear weapons. It will ‘loom large’ over any effort to revive negotiations on nuclear arms control.

I have argued in this book that we should take the TPNW seriously, for it augurs a new era in security diplomacy. A TPNW era will not be congenial to the interests of the US, its allies, or like-minded countries.

At first appearance, NPT Article VI presents no special problem of interpretation. Article VI is a negotiations provision. Many treaties contain provisions of that kind. However, as we saw in Chapter 1, contestation has arisen over Article VI. On the better reading, Article VI is a self-contained provision, not a bargaining chip for non-nuclear-weapon states to challenge the non-proliferation regime that forms the heart of the treaty. Confusion arises, when parties and commentators describe the NPT as an ongoing bargaining process in which parties compete over how the so-called ‘three pillars’ apply. Much of the confusion owes to the thesis that, because negotiating parties in the 1960s arrived at these provisions through a quid pro quo, the non-proliferation provisions apply only if the nuclear-weapon states implement Article VI, the negotiation provision, in a manner that non-nuclear-weapon states approve. Most treaties reflect bargains reached when they were drafted. But a drafting history that suggests that a given treaty term was the result of a bargain does not make that term an invitation to further bargaining today. To discern the meaning of a treaty, one looks first to the terms that the parties adopted, not to the process that led to adoption. Articles II and III, as written and adopted, do not express themselves as conditioned upon Article VI or on any other provision of the treaty.

Even if we put aside the conditional reading of Articles II and III, questions still remain as to the meaning of Article VI itself.

For one, a question was raised at the end of the Cold War about the continued scope of application of Article VI: considering that the superpower ‘arms race’ that existed when the NPT was drafted ceased in the early 1990s, does the ‘arms race’ limb of Article VI still apply? Statements by US officials in diplomatic settings have been read to suggest that it might not. The ‘arms race’ limb has renewed salience, however, in light of the arms buildup on which China has embarked.

A further question has puzzled policy makers practically since the NPT was concluded: what, precisely, does the ‘pursue negotiations’ clause of Article VI oblige a state party to do?

As Chapter 3 recalled, the ‘pursue negotiations’ clause in Article VI of the NPT indicates a legal obligation. Plausibly interpreted, the obligation is that the parties in fact negotiate nuclear arms control. If parties are in fact to negotiate, then they must take certain antecedent steps. Some steps, though in some cases not free from difficulty, are largely ministerial— for example, choosing a venue and setting a procedural format. Others can present a fundamental challenge. In particular, the parties must identify substantive issues that they are amenable to negotiating.

In today's strategic environment, what is there left to negotiate about nuclear arms control?

The present chapter aims to invite consideration of a range of potential topics relevant to nuclear weapons that states, in particular the US and its allies, on the one hand, and China, on the other, might address in negotiations. My purpose in this one chapter of a short book is not to supply a complete analysis. It is, instead, to spur the policy debate necessary if the US and its allies are to begin the search for substantive issues that they might invite their interlocutors to place on a future negotiating agenda.

The wide ambit of Article VI

Article VI embraces a large field of potential negotiation subject matter. The breadth of Article VI is reflected in the ‘effective measures’ clause. The ‘effective measures’ clause makes clear that the parties have not confined themselves to negotiate toward one or another specific measure: the NPT does not define ‘effective measures.’ The NPT identifies the ultimate goal that ‘effective measures’ are to relate to— they are to be measures ‘relating to cessation of the nuclear arms race at an early date and to nuclear disarmament’— and the NPT describes those measures to be in the direction of disarmament, which is to say measures forming a process of increments. Prescribing no specific modalities for arms control, the NPT acknowledges the realities of geopolitical competition that motivated states to adopt the NPT in the form that they did. The NPT leaves a significant discretion to the parties when they come to identify a negotiating agenda.

National policy documents, such as the NPR (US), acknowledge Article VI but have not in recent years suggested a broad range of specific topics that nuclearweapon states might negotiate.

This book is not about the history of nuclear arms control. It is instead about its possible future. A page of history nevertheless helps us understand where nuclear arms control might go and to appreciate why, as the title of this book suggests, nuclear arms control at the moment is in peril.

On July 16, 1945 the US tested the first atomic bomb. On August 29, 1949 the USSR tested its first atomic bomb. Finding themselves in a world in which two antagonists possessed weapons of enormous destructive power, political leaders began to consider possibilities for negotiating arrangements that might place those weapons under agreed limitations and controls. Progress in the first decade was unsteady. Countries reached a modest milestone in 1957 when they created the International Atomic Energy Agency, the IAEA, a multilateral organization intended to support the peaceful use of nuclear technology and, ‘so far as it is able’, to ensure that nuclear technology transferred to countries without nuclear weapons is used only for peaceful ends. The US, the USSR, and the UK— the last having tested its first atomic bomb in 1952— at length agreed to stop nuclear tests in space, the atmosphere, and oceans. However, the Partial Test Ban Treaty, which the US, the USSR, and the UK adopted in 1963, did not place any other limits on the nuclear arsenals of these three countries, and it placed no obligation whatsoever on other countries. As for the IAEA, its governing statute left it to individual states to decide how, and whether, they would engage with the new Agency. No legally binding instrument with widespread membership did anything in itself to limit countries’ freedom to develop or acquire nuclear weapons. With France having tested its first atomic bomb in 1960, and China having received technical support from the USSR to expedite its own development efforts— China would test its first bomb in 1964— concern grew that the spread of nuclear weapons was only beginning. US President John F. Kennedy, in 1963, the year of the test ban treaty, apprehended that in another decade or so as many as 25 countries would have nuclear weapons.

Whether, as in the Biden Administration's National Security Strategy, one describes China as the ‘pacing challenge,’ or, as in the Trump Administration's National Security Strategy, one identifies China together with Russia as one of a pair of ‘revisionist powers’ that ‘are contesting our geopolitical advantages and trying to change the international order in their favor,’ China affects the strategic environment in fundamental ways. China has made clear that it aims to compete with the US and its allies across multiple domains. Perhaps most striking is China's nuclear weapons buildup. It remains unclear precisely what strategic purpose China pursues through its buildup, but the quality and quantity suggest that China's intentions are transformative. Whatever its strategic purpose, the buildup has implications for the NPT. In view of the shift of disarmament discourse to the nuclear ban treaty, the TPNW, and the difficulties that the fading of the NPT would entail, it is under the NPT that the US and its allies should craft a diplomatic strategy to enhance our overall response to China— and to pursue the best chance of reviving nuclear arms control.

‘Breathtaking expansion’ and missing response

The 2022 Nuclear Posture Review acknowledges the stark reality of China's nuclear weapons buildup. Using language similar to that in the 2022 National Security Strategy, the NPR refers to China as ‘the overall pacing challenge for U.S. defense planning and a growing factor in evaluating our nuclear deterrent.’ The NPR repeats the publicly available estimate that China pursues a nuclear arsenal of ‘at least 1,000 deliverable warheads,’ with 2030 as the target date for attaining that new quantity of armament. For its part, the Pentagon's annual report for 2022 on China— Military and Security Developments Involving the People's Republic of China— indicates that by 2035 China will have 1,500 warheads. The NPR says that it is likely that China will use the envisaged arsenal as ‘leverage … for coercive purposes’ in pursuit of expansionist aims. As President Trump had said two years before, ‘China is surging.’

Before negotiations began on a nuclear arms control treaty, it appeared that a score or more countries soon would have nuclear weapons. This was the nuclear future that the US Government National Intelligence Estimates forecast in the 1950s and to which President Kennedy later alluded. The US and USSR, though for different reasons, agreed that farreaching proliferation would undermine security, and, so, in the 1960s the superpowers started negotiations on nuclear arms control. The Treaty on the Non-Proliferation of Nuclear Weapons— the NPT— was the result. Historians are unlikely ever to settle the question whether the NPT is the reason many states that might have pursued nuclear weapons did not, but the fact remains: far fewer states came to hold nuclear weapons after conclusion of the NPT than experts had warned would do in the estimates they had ventured before conclusion of the NPT. Proliferation did not stop after 1968, but a world of 20 or more nuclear-armed rivals did not emerge.

Whatever its precise role in reducing the spread of nuclear weapons, the NPT undoubtedly was animated by a desire to achieve that end. Crucial was that practically all states join the NPT. A treaty that only the states holding nuclear weapons joined would have left the door open to others lawfully to pursue nuclear weapons. But how to convince others to accept a new limit on their sovereign right to fashion a national defense? One argument was that the envisaged limit— an obligation not to acquire nuclear weapons— would enhance international security and thus supply a self-sufficient reason for non-nuclear-weapon states to join the treaty. At the same time, the drafters reckoned that an eventual non-proliferation treaty, if it were to attract the many states whom it aimed to prevent from having nuclear weapons, must accommodate certain other interests. The interest of non-nuclear-weapon states in the peaceful use of nuclear energy was foremost among these. In addition, it was a professed goal to achieve a more thorough-going arms control. Thus, as eventually drafted, the NPT addressed not only non-proliferation, but two further matters as well: peaceful use of nuclear energy by non-nuclearweapon states and eventual nuclear and general disarmament.