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Nuclear Ban Daily, Vol. 2, No. 13

And the text goes to translation
6 July 2017


Ray Acheson

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High drama unfolded on Wednesday afternoon as debate erupted over the draft treaty’s withdrawal provision. After a full day of states reading their positions on various aspects of the text into the record without anticipation of changing that text, it was surprising—and welcome—to see a concerted effort to remove the extremely problematic language on withdrawal. Even though the campaign to remove this provision did not achieve this result, it was nevertheless a successful effort to demonstrate without a doubt that the intent of negotiating states is that this treaty is a categorical rejection of nuclear weapons and that there are no “supreme interests” or “extraordinary events” that could ever override that.

The idea that there are circumstances in which the development, acquisition, use, or support for the use of nuclear weapons would ever be justifiable is anathema to the treaty. A few states tried to argue that these would not be the main reasons why a state might want to withdraw from a treaty banning nuclear weapons, but it is very difficult to see what other reason there might be. Proving a political point against nuclear-armed states not joining the treaty, for example, would not be a compelling reason to withdraw, especially given that this treaty is being negotiated and will (hopefully on Friday) be adopted without them anyway.

This understanding that the treaty represents the complete rejection and outlawing of nuclear weapons is why the majority of states participating in the debate on Friday made it clear that the offending language in article 17(2) should be removed. The language says that each state party shall “have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of the Treaty have jeopardized the supreme interests of its country” (emphasis added). There are so many things wrong with this provision. First, it is embedded in a regressive notion of state security. How would acquiring or using weapons to commit genocide contribute to security? Second, it is completely subjective. A state may essentially decide for itself what constitutes extraordinary events or its supreme interests. Third, it runs counter to the humanitarian purpose of this treaty, which is to prohibit nuclear weapons for all on the basis of their catastrophic consequences.

The key ask of states objecting to this language was to remove the withdrawal clause altogether. They wanted to eliminate paragraphs 2 and 3 from article 17 and keep the article focused just on the duration of the treaty. This would not have explicitly indicated that withdrawal was prohibited, but instead would have meant that the Vienna Convention on the Law of Treaties would have applied. This in turn would mean that states wanting to withdrawal would need to prove that the intention of states parties was to allow withdrawal from the treaty. This is an extremely strong position against withdrawal, as, particularly after today’s debate, that may have been difficult to prove. Another “fix” would have been to just have a simple withdrawal provision that did not say anything about supreme interests or extraordinary events and just reflected the right to withdraw, period.

However, while neither the language nor the entire provision was removed, the brilliant appeals from Palestine and South Africa are in the public domain, as is the clear majority support they garnered from states in the room. Also on record is the enthusiastic applause that broke out when the President acknowledged this majority view and moved to remove the offending paragraphs from the text. She had support to do so; the minority of Algeria, Bangladesh, Egypt, Iran, Philippines, Sweden, and a few others caused her to try to get agreement on the text as it stood. In the end, the states calling for the removal of the withdrawal provision let it pass, making their priority the adoption of the treaty on Friday.

This says something about the different approaches of those negotiating this treaty. Some states continue to frame their efforts and this treaty in the context of what they see as their “security” interests, putting those perceptions above the majority perspective. This is reminiscent of the states not in this room, as states that want to retain nuclear weapons. It isn’t consistent with the objective or the spirit of this treaty. Meanwhile those states that did their utmost to ensure the integrity and consistency of this treaty with its own principles were willing to compromise in order to achieve the greater good. They would rather see the adoption of this treaty on Friday than risk losing it all over one paragraph.

While we applaud their efforts, it is important to remember that nothing in article 17 affects or undermines the prohibitions in article 1. Nuclear weapons are still prohibited. This treaty still has a strong, irrefutably humanitarian purpose and focus. All disarmament treaties include withdrawal provisions, so it is nothing special that this one does. The particular language in this treaty is unfortunate, and is the result of carelessly carrying over inappropriate language from other agreements. But at the end of the day, this language can do nothing to change the fact that if this treaty is adopted on Friday we will have banned nuclear weapons. We will have established a framework for the elimination of nuclear weapon programmes—the warheads, the materials, the delivery systems, the facilities. We will have grounded our efforts in the recognition of the disproportionate impact of nuclear weapon activities on indigenous peoples, the gendered impacts of these weapons, the catastrophic harm to the environment, and the suffering of hibakusha.

The text of this treaty has now passed this review and will be sent to translation to be written into the six official languages of the United Nations. On Friday, states will be asked whether they wish to adopt this treaty. This is the moment we have worked for over so many years. It is a truly collective achievement that has great moral and humanitarian weight and no matter our concerns with this or that particular aspect of the text, it is time to come together once more and bring to life our treaty banning nuclear weapons.

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