Nuclear Ban Daily, Vol. 2, No. 12
We’ve got a treaty banning nuclear weapons
4 July 2017
There are many ways to ban nuclear weapons. The draft text that the President of the conference released on Monday evening is one of them. And it’s a good one. It is a categorical prohibition of nuclear weapons that also provides a framework for their elimination. To paraphrase the former leading US arms control negotiator Paul Warnke about nuclear treaties: “I could have written a much, much better agreement.... But of course, I could not have negotiated such an agreement.”
The treaty that delegations here in New York have negotiated may not satisfy all visions or interpretations of the “best” way to ban nuclear weapons, but it does constitute a progressive, sound, legally-binding effective prohibition of these genocidal, suicidal weapons of mass destruction.
A review of the text
Framing and prohibitions
The preamble remains almost entirely unchanged from the last version published on 27 June. It’s a long preamble, but a good one. There are strong reflections of the catastrophic humanitarian impacts of nuclear weapons, including gendered impacts and disproportionate impacts on indigenous communities. It means there is strong reflection of the ethical and legal imperatives for the prohibition and elimination of nuclear weapons. There is a reference to the need to support and strengthen the effective participation of women in nuclear disarmament as well as to promote peace and disarmament education and raise awareness about the risks and consequences of nuclear weapons for current and future generations.
The one thing that is still missing, in preambular paragraph 8, is a reaffirmation that states must comply at all times with international environmental law. Nuclear weapons, whether through production, use, or testing, have a far greater potential to harm the environment than other forms of banned weapons. The principles of international environmental law are relevant to the treaty’s objectives of preventing humanitarian and environmental catastrophe; an explicit reference to those principles would reflect current legal thinking on the law applicable to the environmental impact of conflicts and military activities.
Unfortunately the paragraph reaffirming the Non-Proliferation Treaty’s “inalienable right” to nuclear energy for “peaceful purposes” is still there. It’s an unnecessary, legally unsound, and frankly offensive paragraph, but at least it does not detract from the categorical banning of nuclear weapons that this treaty provides.
The only change in the prohibitions of article 1 from the last version produced on 30 June is that the prohibition on using or threatening to use nuclear weapons has been expanded to also include “other nuclear explosive devices” to be consistent with the rest of the prohibitions here. Testing is still in the treaty; preparations to use, transit, and financing are still not there. If this is to be the final text, states need to articulate that their understanding of “assistance, encouragement, and inducement” includes preparations to use, transit, and financing of nuclear weapons.
The treaty would have also benefited from prohibitions on nuclear weapon-usable materials and on nuclear-weapon certified and nuclear-capable delivery systems. These can be accommodated, however, if states make clear that these are part of nuclear weapon “programmes” and as such must be eliminated through the process set out in article 4.
Dealing with nuclear weapons and programmes
Article 3 on safeguards has only one change from the 30 June version, adding an explicit reference to INFCIRC/153 corrected as the required comprehensive safeguards agreement. Otherwise the article remains unchanged.
The only change in article 2 on declarations from the 30 June version is to add language to the declarations for states that possess or station nuclear weapons at the time they join the treaty that makes it clear that are not to be considered in non-compliance with those particular prohibitions.
This “notwithstanding” language, which permits state to join in spite of being in technical violation of particular prohibitions, poses a potential risk. However, given that it seems states parties want this to be an option, then at least they have made their best effort to guard against the ability of any state to join with nuclear weapons and retain them—or nuclear weapon programmes and facilities—indefinitely. It must also be noted that the notwithstanding reference to article 1(a) only refers to possession and stockpiling, and not the rest of the prohibited activities in that article.
In this regard, the new article 4 has some positive changes. Article 4(1), which covers a situation in which a currently nuclear-armed state joins the treaty after eliminating its nuclear weapon programme, now provides for verification of that elimination. Previously it only required the state to conclude an agreement with the International Atomic Energy Agency (IAEA) in regards to non-diversion of declared nuclear materials and absence of undeclared nuclear materials or activities. Now it is also required to “cooperate with the competent international authority designated pursuant to paragraph 6 of this Article for the purpose of verifying the irreversible elimination of its nuclear weapons programme.”
A nuclear weapon programme, however, is still undefined here. It should be interpreted to include material in weapons, material reserved for weapons, and material recovered from weapons, as well as delivery systems that a state has certified for nuclear weapon use and those delivery systems that are clearly nuclear-capable. These materials and delivery systems were produced as part of weapon programmes or to support such programmes and should be treated as such.
The parameters of his “international authority” in paragraph 6, which also has responsibilities for verification of elimination in states that choose the join-and-destroy approach, have been significantly expanded upon in the latest text. It can now be more than one authority and it/they will be involved in the negotiation of a verification plan with the concerned state. This updated paragraph also makes clear that if such an authority has not been designated by the time a join-and-destroy or destroy-and-option is utilised, the UN Secretary-General will convene an extraordinary meeting of states parties (MSP) to take any decisions that may be required.
As before, Article 4(2) and (3) deal with nuclear-armed states joining the treaty before it has eliminated its nuclear weapon programme. A key change is that now states using this option are required to “immediately” remove nuclear weapons or nuclear explosive devices from operational status and destroy them, “as soon as possible but not later than a deadline to be determined by the first Meeting of States Parties.” (Presumably this MSP refers to the first one after the concerned state joins the treaty.) The rest of the paragraph remains unchanged, mandating that the plan for the legally-binding, time-bound plan for the verified and irreversible elimination of nuclear weapon programmes is to be submitted within 60 days of the treaty entering into force for that particular state. The plan isn’t just accepted, though, it will then be negotiated with the paragraph 6 authority and then approved by other states parties.
As with states that have joined the treaty after eliminating their nuclear weapon programmes, join-and-destroy states also have to conclude an IAEA safeguards agreement. Negotiation of this agreement is to commence immediately after the elimination plan above has been completed. To strengthen this, safeguards could begin at the same time as the elimination process.
This is a lot of detail, and is receiving some raised eyebrows from states or other participants that anticipated that a prohibition treaty would provide for a much simpler structure for dealing with nuclear-armed states. However, once the majority of conference participants expressed their determination to allow for a join-and-destroy approach, this level of detail became more or less inevitable. Another option, in which a space is simply carved out in this treaty to negotiate parameters like this later, punts those decisions down the road to a time when nuclear-armed states would be engaged in designing the parameters. The way article 4 is set up now leaves all of the details of the actual elimination plan to be negotiated with the particular nuclear-armed state that is joining the treaty but establishes a firm expectation and a framework for ensuring that these states cannot simply join the treaty and retain their nuclear weapons or eliminate their programmes without oversight and involvement of states parties and international authorities.
There is one other situation that article 4 deals with: states that “host” nuclear weapons on their soil. Article 4(4) allows for states that have any nuclear weapons in their territory that not their weapons “ensure the prompt removal of these weapons”. In the 30 June version, this was to be done “within a timeframe to be proposed by that State Party and approved by” other states parties at the next meeting. Now, this is to be done “as soon as possible but not later than a deadline to be determined by the first Meeting of States Parties”—again, presumably this refers to the first MSP after the concerned state has joined the treaty.
One remaining issue here is that no verification mechanism is specified for how a state can show it has complied with its obligation to remove the weapons it had been hosting. Currently, it only needs declare that it has done so. Since such states have nuclear weapon-related facilities (for instance the dedicated nuclear weapon storage vaults at airbases), a simple fix is to require the designated authority set up under Article 4(6) to verify that these storage facilities have been eliminated or converted.
There are concerns about allowing a “host” state to join while it still has nuclear weapons on its territory, though at least in this scenario it will be bound by the prohibitions of the treaty which means it would not be able to permit or assist in the use of these weapons in the time that it joins the treaty until they are removed. The specification of timeframe for this removal is much stronger in the updated version.
Overall, the challenge of articles 2 and 4 lies with the risks we perceive in the world today. We are promised “good faith” and have become accustomed to bad faith. The nuclear-armed and nuclear-hosting states parties of the NPT have abused the good will of the rest of the treaty’s membership for decades. This generates unease about establishing parameters in this treaty for such states to join while still retaining their weapons and programmes.
However, the objective of this approach is to lock nuclear-armed or nuclear-host states into the other prohibitions and into time-bound, irreversible, verifiable elimination or removal of the weapons and weapon programmes in cooperation with other states parties and a designated international authority. This is a valid pathway to achieving the elimination of nuclear weapons and programmes and the establishment and maintenance of a nuclear weapon free world. In the pursuit of such a world, we will have to build trust with and confidence in states that have previously let us down for so long and in so many ways. This will not be an easy thing to do, but staking out carefully guarded space for it in this treaty may be a good start to that work.
Implementation and assistance
Article 5 on national implementation and article 6 on victim assistance and environmental remediation have remained unchanged from the 30 June text. The assistance and remediation provisions are still limited only to the use and testing of nuclear weapons but should also include production of nuclear weapons. The impacts of production—from uranium mining to weapon production to waste storage—have grave and generational impacts on people, including workers and local populations, and on the environment.
The final paragraph of article 7 on international cooperation and assistance has been removed. In the 30 June draft, this paragraph explained that a state party that has used or tested nuclear weapons shall have either a “primary” or a “fundamental” responsibility to provide adequate assistance to either affected states or states parties. On Monday, participants in those discussions reportedly resolved these choices and submitted text to the President on that basis, but the paragraph is not contained within this new draft.
Meetings of states parties
Article 8 contains only minor revisions from the 30 June version. The only remaining issue that could be improved here is the question of regularity of these meetings. Annual meetings would help civil society and states keep up the pressure for ratifications as well as review implementation and spread awareness of the treaty.
After much discussion on Monday, the provisions for withdrawal still need serious work. In order to remain consistent with the humanitarian objectives of this treaty, and other humanitarian disarmament law, the reference to “extraordinary events [that] have jeopardized the supreme interests” of a state must be removed.
No multilateral disarmament treaty concluded in the last 24 years has included this formulation. The withdrawal clauses for the humanitarian-focused Mine Ban Treaty and Convention on Cluster Munitions do not include references to extraordinary events and supreme interests. This formulation also does not appear in older humanitarian-focused treaties, such as the Geneva Conventions, or in human rights treaties that contain withdrawal provisions.
Its inclusion in the ban treaty would run counter to the principles and goals of the treaty as set forth in the draft preamble. It would send the message that “supreme interests” trump the treaty. A bare withdrawal clause would avoid sending this message and just recognize that states can withdraw from the treaty. This would not represent a weakening of the provision.
This article also needs include a means for mounting a collective response by states parties and the General Assembly to a withdrawal. At the very least it should be stated that any withdrawal from the ban treaty shall be treated as constituting a threat to international peace and security and shall lead to an emergency meeting of the states parties and if required the General Assembly to address the matter.
Relationship with other agreements
Article 18 has changed slightly, removing a reference to “future” international agreements. This is fine and the language in this paragraph must be retained as is, or deleted entirely. Other options, such as including references to specific treaties or trying to subordinate the ban treaty to other instruments, are not acceptable.
Banning nuclear weapons and facilitating disarmament
This treaty may not be perfect, but no treaty is. It is an instrument that achieves what we set out to do: create international law without the nuclear-armed or nuclear-supportive states that will fundamentally challenge their ability and interest in maintaining these weapons of mass destruction. If adopted on Friday, it will mount an effective legal, political, economic, and social challenge to the concept, policies, and practices of nuclear “deterrence” and to the existence of nuclear weapons themselves.
As noted above there are some changes that could make this treaty even stronger than it is now. But even in its current form, this is a treaty worthy of adoption. It’s up to states now to take this final step. The external pressure to not adopt this treaty is surely cranked up to eleven, but as the President of the conference said on Monday evening, we must “work hard to have some good news to the world on Friday.”
Thanks to Bonnie Docherty, Zia Mian, Doug Weir, and Tim Wright for their contributions to this article.