NPT News in Review, Vol. 16, No. 5
Editorial: The house is on fire, or what happens when the architect and builder proves to be an arsonist and the firefighters are missing in action
9 May 2019
As anticipated, Iran announced on Wednesday that it will now take steps to halt compliance with elements of the Joint Comprehensive Plan of Action (JCPOA) in response to the United States’ withdrawal from the agreement, violation of UN Security Council resolution 2231, the imposition of unilateral sanctions, and increasing military pressure against Iran.
Iranian President Hassan Rouhani said that rather than stop production altogether Iran “would hold on to stockpiles of excess uranium and heavy water used in its nuclear reactors,” since US actions meant Iran could no longer ship them out of the country, and he “set a 60-day deadline for new terms to the nuclear accord, after which Tehran would resume higher uranium enrichment.” Rouhani indicated that this new posture is intended to spur negotiations not confrontation. “We will not start breaching commitments and waging any war,” he said. “But we will not give in to bullying either.”
At the NPT, initial sentiment expressed by some delegations so far is that the PrepCom cannot demand full compliance of Iran with the JCPOA obligations without also calling on the US to come back to the agreement and end its economic pressure against Iran in violation of UN Security Council resolution 2231. When the Security Council will not enforce its own unanimous non-proliferation agreement resolutions, NPT states parties need to ask what this means for the future of NPT enforcement.
The failure of the other JCPOA parties to uphold the agreement by bypassing or countering US sanctions against Iran is an excellent case of crumbling multilateral disarmament and arms control architecture that many states parties have warned against during this PrepCom. “The value of all legally-binding instruments, including the NPT, lies in the certainty given their Parties as to what their rights are and what their obligations are,” warned Ambassador Dell Higgie of New Zealand on 2 May. “A treaty will come to have little value if its terms are re-interpreted, overlooked, or deferred.” This needs to be the foremost consideration in the minds of those reviewing these recommendations, but also when looking ahead to the 2020 Review Conference, to the implementation of the JCPOA, and when dealing with any other disarmament, arms control, or non-proliferation agreement that is currently at the peril of the flames of non-compliance and the hubris of power.
Next year, the NPT will celebrate its fiftieth anniversary. And while there is much to celebrate in terms of non-proliferation, 2020 also marks 50 years of failure to implement article VI, 25 years of failure to implement the 1995 resolution on the Middle East, 20 years of failure of fulfilling the unequivocal undertaking, and 10 years of failure of most of the 22 disarmament action points in the 2010 action plan. As is the US government’s suspension of the Intermediate-range Nuclear Forces (INF) Treaty and indications that it will not extend the New Strategic Arms Reduction Treaty (New START) with Russia. (Ironically, on Tuesday the United States said in the context of discussion of article X of the NPT that withdrawal from the Treaty should be discouraged…)
All of this, coupled with the decades-long failure all of the nuclear-armed states to comply with their “unequivocal undertaking” to accomplish the total elimination of their nuclear arsenals, is a good indication that the international nuclear disarmament and non-proliferation regime is on fire. (But don’t worry. The nuclear-armed states are going to bring a “glossary of key nuclear terms” to the Review Conference.)
The debate over the draft recommendations the past two days highlights this history of failure and the toll it has taken on states parties’ patience with the nuclear-armed states. It also reflects the continued pull away from agreed language and the addition of conditionalities, which some of the nuclear-armed states have been urging.
This pull back from past agreement is reflected in the language on the humanitarian consequences of nuclear weapons. Paragraph 13 of the draft text only suggests states parties “further consider the catastrophic humanitarian consequences of any intentional or accidental nuclear explosion”. There has already been a lot of investigation and study on this question since 2010, none of which is reflected here even though it has been mentioned repeatedly in NPT meetings, working papers, and side events since then. Furthermore, the vast majority of states parties agree that humanitarian considerations already motivate their work for nuclear disarmament and should be at the forefront of discussions, regardless of their position on specific policies or approaches. Most have urged that the recommendations reaffirm the “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons” and of the “need for all states at all times to comply with applicable international law, including international humanitarian law,” as expressed in the 2010 outcome. As several delegations suggested on Wednesday, it should also reflect the fact that new information has emerged leading international organisations and governments to confirm that there can be no adequate response to the detonation of a nuclear explosive device.
France, on the other hand, said it regrets the way the humanitarian consequences discussion has been “exploited” and does not support the reference at all in the recommendations. The refusal to engage with, let alone acknowledge, the humanitarian consequences of nuclear weapons, coupled with the non-compliance by nuclear-armed states with their disarmament obligations, is part of what encouraged non-nuclear-armed states to take matters into their own hands and negotiate the UN Treaty on the Prohibition of Nuclear Weapons in 2017. The Treaty enjoys the support of the vast majority of the NPT membership.
Yet, the “acknowledgement” of the TPNW in the draft recommendations is minimalist in comparison with an extensive paragraph on the Comprehensive nuclear Test Ban Treaty (CTBT). In addition to noting its complementarity to the NPT, several delegations urged that the recommendations should encourage all NPT states parties to sign and ratify the Treaty as consistent with their legal obligations under article VI. The majority of governments speaking on Wednesday also encouraged the Chair to add language reflecting the broad support for the TPNW and its importance for establishing an international norm for the prohibition of nuclear weapons. As Brazil said on 2 May, the TPNW “transcends rhetoric and procrastination” and “can serve as a moral compass for NPT’s implementation”.
But in keeping with their rejection of banning nuclear weapons, France, Russia, the United Kingdom, and the United States—and Poland—objected to referencing the TPNW at all. France and Poland argued that the Treaty creates a norm that is incompatible with the NPT—which as Daryl Kimball of the Arms Control Association noted on Wednesday, is “unhelpful, untenable and incorrect.” Japan suggested that the recommendations could include language expressing divergent approaches to the TPNW. Austria pointed out that the TPNW is not an approach, it’s a legal instrument. South Africa asked if Japan would also like to introduce language about divergent opinions on all of the other aspects of the draft recommendations.
The fight over the TPNW will continue. But if NPT states parties aren’t concerned about that, they should be concerned that some states are trying to pull further away not just from previously agreed language but from the intention and obligations of the NPT. The chapeau, reflecting some of this language from the nuclear-armed states, for example, reaffirms “commitment to efforts designed to promote the full implementation of the provisions of the Treaty.” It’s a mouthful, especially when really what states parties should be doing is reaffirming the commitment to implement the Treaty, full stop. Similarly, the section on nuclear disarmament reaffirms states parties’ commitment to implement article IV of the Treaty (spreading nuclear energy) but only recalls their commitment to article VI (achieving nuclear disarmament). There’s a lot of these linguist turns that to those not following diplomatic processes might seem trivial, but have big implications—including for how we treat international law. Are we using these types of documents to backtrack or to advance the objectives of the Treaty? Hopefully any outcome from this PrepCom moves us forward toward full implementation of the NPT and does not give any further fuel to the firestarters.