Key Issues in Negotiations for a Nuclear Weapons Prohibition Treaty

By John Burroughs
Arms Control Today, June 2017

The outlines of a treaty to prohibit nuclear weapons, leading to their total elimination, emerged in late March during the first week of negotiations among diplomats representing about 130 governments. During a second session, to take place from June 15 to July 7 at the United Nations, a text will be negotiated, based on the May 22 draft by the president of the negotiating conference, Ambassador Elayne Whyte Gómez of Costa Rica. She aims for conference approval of a text by the end of that session.

Read the whole article here

The Ban Treaty – Next Steps: Sign and Ratify

Dear friends of peace,

Dear colleagues,

A historical document was adopted by 122 states at the UN on July 7th: the treaty prohibiting nuclear weapons.

For many years we have been working for and promoted such a treaty. As the South-African Ambassador said, we faced through the last years “an incredible amount of pressure”, we were accused of being “irrealistic” and divisive, but this treaty had to be achieved as a “moral duty”. Continue reading “The Ban Treaty – Next Steps: Sign and Ratify”

CISP Kazakhstan: The Treaty on the Prohibition of Nuclear Weapons

On July 7, 2017 the text of the Treaty on the Prohibition of Nuclear Weapons was approved at the UN Headquarters in New York City during the final session of negotiations on the development of a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination  (hereinafter – the Conference, negotiations).Despite the efforts of the President of the Conference and States parties to reach a consensus, the Treaty was put on voting. Of the 137 states, 122 voted in favor, 1 against (the Netherlands), and 1 abstained (Singapore). 13 states did not take part in the voting (Andorra, Armenia, Barbados, Cameroon, Guinea, Libya, Monaco, Nauru, Nicaragua, Swaziland, Syria, Macedonia, Zambia).The treaty will be opened for signature on September 20, 2017 within the framework of the High-level Segment of the 72nd session of the UN General Assembly in New York and will come into force after its ratification by 50 states.

The NPT and the Treaty on the Prohibition of Nuclear Weapons

There is a different understanding among the UN member states of the interface between the new Treaty on the Prohibition of Nuclear Weapons and the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).The nuclear powers and their allies are convinced that the torpedoing (in their opinion) of negotiations on the prohibition of nuclear weapons is premature, will damage the NPT and, as a consequence, the existing architecture of international security (strategic stability, nuclear deterrence, the principle of undiminished security).So, on March 27, 2017 in New York on the day of the beginning of negotiations, 21 states headed by the United States, Great Britain and France issued a statement to the press against the holding of negotiations.The Russian Federation during the first meeting of the Preparatory Committee of the NPT Review Conference of 2020 in May this year in Vienna stated that: “…this is an erroneous path fraught with unforeseen consequences, including for the NPT. We call on all to remember in New York about responsibility for the NPT and not to prejudice the NPT“. Supporters of the Treaty on the Prohibition of Nuclear Weapons are convinced that it will not create any legal conflicts with the NPT.On the contrary, the development of the Treaty is aimed at strengthening and developing Article VI of the NPT, according to which the participating States pledged to “… to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament…”.In this regard, the course of discussion at the Conference of Article 18 of the Treaty “Relationship with other agreements” is indicative: «The implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty».Switzerland, Sweden, Singapore, Austria and the Netherlands actively promoted the thesis on the need to exclude the last 8 words of the article “…where those obligations are consistent with the Treaty“. This, in fact, would put the new Treaty in a subordinate position to the NPT and would preserve the right of the “nuclear five” to own nuclear weapons.Subsequently, as it’s known, the Netherlands demanded a vote and voted “against” the new Treaty, while Singapore “abstained“.It is necessary to pay attention to the rather restrained attitude of the UN Secretariat to the new Treaty. Thus, during the speech of the United Nations High Representative for Disarmament Affairs Izumi Nakamitsu at the closing of the Conference on July 7, 2017, she stressed that “the NPT must remain the cornerstone of the global nuclear nonproliferation and disarmament regime“.

Structure of the Treaty on the Prohibition of Nuclear Weapons

Iran is the only state among the negotiators who, from the very beginning of the negotiation process, insistently called for the harmonization of the most concise document, the main focus of which will be the legal prohibition on nuclear weapons and the elimination of a legal gap in this area.In March 2017, during the first session of the Conference, Iran drew attention to the fact that “IAEA is the main verification organization. We seriously doubt that the IAEA will be able to play this role, since the IAEA Board of Governors includes, in the main, states that are not present at this Conference“.Ideally, the prohibition and elimination of nuclear weapons had to be carried out in two stages:- comprehensive prohibition of nuclear weapons (Treaty);- elimination of nuclear weapons, timing and verification mechanisms, as well as the establishment of a specialized Agency for these purposes (Convention).The task of the Treaty was to secure the “point of no return” – the signing and entry into force of the first ever international treaty on the legal prohibition of nuclear weapons.The desire of the states to quickly cover the provisions on the elimination of nuclear weapons in one Treaty, in the future may prejudice the nuclear disarmament process and discredit the competence of the states parties to the Conference.

Preamble

Unfortunately, the negotiating states very easily agreed not to include the following provisions in the preamble of the Treaty:- advisory opinion of the International Court of Justice of 8 July, 1996;- Final document of the tenth special session of the General Assembly, of 30 June 1978;

– conferences held on the Humanitarian Impact of Nuclear Weapons;

– conventions on the prohibition of biological (1972) and chemical (1993) weapons.

Earlier, New Zealand at the first session of negotiations in March 2017 rightly noted that “it is necessary to show the path passed by the world community since 1946“.

Prohibitions (Article 1)

The negotiating States parties could not agree on the inclusion of the following prohibitions:- military or other preparations for the use of nuclear weapons;- financing of research in the field of nuclear weapons;- transit of nuclear weapons.It should be noted that the states had to make enormous efforts to include a prohibition on the threat of use of nuclear weapons. Only after Iran’s detailed statement with an overview of the prohibitions on the threat of force in international law did the President of the Conference have to include this provision in the draft Treaty.At the same time, the efforts made by the majority states could not overcome the objection of the minority, in particular, Austria and Singapore, to the inclusion of a prohibition on the transit of nuclear weapons.

Verification of nuclear disarmament (Articles 2-4)

These articles are the “Achilles’ heel” of the Treaty.The following questions arise at the first reading.1. How will the nuclear-weapon States that have signed or acceded to the Treaty agree and can independently adopt a legally-binding plan for the elimination of nuclear weapons?2. The timeframe for a plan for the elimination of nuclear weapons will be interpreted by each state in its own way, which will inevitably cause a different speed of fulfillment of its obligations. This, as a result, will lead to mutual distrust and make it impossible for each state to implement these plans independently. Obviously, this should be a single unified transparent plan for the elimination of nuclear weapons, as approved in the text of the Treaty itself (or in the Comprehensive Convention on the Elimination of Nuclear Weapons).3. Definition of the competent international authority (art. 4, para 6): will it be the establishment of a new international authority or the granting of new powers to the operating organization? If the decision is made to empower the existing organization, it will be necessary to make appropriate changes to the Charter, their entry into force, and other organizational issues.In this context, a striking example is the amendment to Article VI of the IAEA Statute adopted in 1999, which increases the number of members of the IAEA Board of Governors from 35 to 43 states. The entry into force of this amendment is not visible in the foreseeable future.Thus, there is a high probability that the requirements of the Treaty on the approval of plans with a time-bound framework for the destruction of nuclear weapons at the national level and the need to determine a competent international authority will lead to an endless prolongation of the implementation of these provisions and make it impossible to implement the Treaty even if nuclear powers accede to the Treaty.The desire of States to take into account, in one document, both the issues of the prohibition on nuclear weapons and their elimination, inevitably led to a weakening of the text of the Treaty.It should be noted that the 2007 Model Nuclear Weapons Convention specifies in sufficient detail what should be reflected in the Declaration of the State, consisting of four parts: nuclear weapons; nuclear material; nuclear facilities and installations; means of delivery.The Model Convention also sets out in detail 5 stages of the elimination of nuclear weapons with a clear time-frame for all nuclear-weapon States.

What’s next?

From September 20, 2017, the Treaty on the Prohibition of Nuclear Weapons will be opened for signature and will enter into force, sooner or later.After persistent calls for nuclear states to accede to the Treaty, the latter will provide an analysis showing that the Treaty, from a practical point of view, is not being implemented and requires significant changes and additions.Over time, it becomes clear that it is necessary to develop and adopt a Comprehensive Convention on the Elimination of Nuclear Weapons, which will clearly and unambiguously describe the mechanisms for the elimination of nuclear weapons, the establishment for this purpose of a specialized agency and other issues.However, articles 2-4 of the already approved text of the Treaty on the Prohibition of Nuclear Weapons will interfere with its adoption.This can further delay the process of nuclear disarmament.

***

Despite all of the above, the fact of approving the text of the Treaty on the Prohibition of Nuclear Weapons is a historic event in the sphere of nuclear disarmament, and the date, July 7, 2017, will forever be included in the textbooks on disarmament and international security.Already in the very near future – the Conference on Disarmament, the IAEA General Conference, the First Committee of the UN General Assembly, the preparatory committees of the NPT Review Conference – the new Treaty will have a direct impact on the nature of their work and the documents.

Alimzhan Akhmetov
Director of the Center for International Security and Policy, Kazakhstan

Joseph Gerson Reports on IPB Ban Treaty Side Event

Friends,

I am ostensibly on vacation, but I am en route home after a quick trip to New York City where I chaired I side event at the U.N. on the impacts of the Ban Treaty. That is to say how our movements can build on the treaty whose text will be completed Friday. Continue reading “Joseph Gerson Reports on IPB Ban Treaty Side Event”

UNI Global Union statement to the UN conference to negotiate a legally binding instrument to prohibit nuclear weapons (ban treaty), leading to their elimination.

  • UNI Global Union welcomes the draft for the ban treaty
  • It is a historical declaration on the way to a nuclear weapon free world

As the General Secretary of UNI Global Union which represents 20 million members in the service sectors worldwide, I urge all governments to work towards creating a credible and effective treaty which will lead to a world free from nuclear weapons.

Continue reading “UNI Global Union statement to the UN conference to negotiate a legally binding instrument to prohibit nuclear weapons (ban treaty), leading to their elimination.”

Report on the second week at the UN negotiations to prohibit nuclear weapons

New York 26-30 June 2017

The second week of the negotiations for a Treaty on the prohibition of nuclear weapons started with the publication on June 27th of the second draft of the Treaty (now called a “Treaty” and no more a “Convention”.) The 130 states in the room are now actively negotiating long hours in small or big committees in order to keep open the possibility to finalize a good text by June 7th. Continue reading “Report on the second week at the UN negotiations to prohibit nuclear weapons”

Sergio Duarte on the UN negotiations for a treaty prohibiting nuclear weapons leading to their total elimination

At an IPB side event on “How to find common ground for the ban treaty and how can civil society and peace movements contribute” at the UN negotiations for a treaty prohibiting nuclear weapons, former UN High Level Representative for Disarmament, Sergio Duarte presented the following speech:

I am grateful to IPB for this opportunity to participate in this discussion on the current negotiation of the Treaty on the Prohibition of Nuclear Weapons. I was asked to present a global view on the process and compare it with other disarmament processes. Given the constraints of time, let me make some quick comments on the results so far of the current negotiation process. There seems to be considerable convergence of views on many aspects of the future instrument.

I think it is fair to say that overall the conduct of business by President Elayne Whyte-Gómez has been quite satisfactory. The debate over the past week has been intense and constructive. The resulting second draft circulated yesterday seems to reflect accurately most of the proposals and observations made. I would make the following general remarks on the new draft:

  • The change of the order of the first few paragraphs of the Preamble gave prominence to the “elimination” of nuclear weapons and to the risks and consequences resulting from their existence and use. In mentioning the ethical imperative of nuclear disarmament, it quotes former UNSG Ban Ki-Moon about the “global public good” and adequately related it to “national and collective security interests”. All States are entitled to security, not just those that possess or are protected by nuclear weapons.
  • Stress was given to the suffering and harm resulting from the use and to the impact of tests (nuclear activities) on indigenous peoples;
  • The need to comply with the principles and rules of IHL is reaffirmed;
  • Mentions the principles of Charter of the UN regarding relations among States and recalls Resolution no. 1 of 1946;
  • Expresses concern about the slow pace of nuclear disarmament and the importance of a legally binding prohibition, as well as the need to achieve GCD;
  • Reaffirms the ICJ 1996 decision on the obligation to pursue negotiations;
  • Reaffirms the vital role of implementation of the NTP, recognizes the vital importance of the CTBT and the contribution of NWFZs;
  • Emphasizes the inalienable right of Parties to nuclear energy for peaceful purposes;
  • Recognizes the need to strengthen participation of women in nuclear disarmament;
  • Finally stresses the role of public conscience and the efforts of the Red Cross, international organizations, NGOs in furthering the principles of humanity evidenced in the call for the total elimination of nuclear weapons.

There were constructive changes, but some of the operative paragraphs need further discussion.

  • Core prohibitions are very clear and unchanged from the previous daft;
  • The procedure for declarations by Parties are now clearer. The same can be said of the measures to eliminate nuclear weapons. Need to clarify some points, for example what “programmes” mean in this context);
  • There is more flexibility in the provisions regarding verification. (Perhaps greater clarity about the “competent international authority” is required);
  • Order of the articles on implementation and victim assistance reversed, without change;
  • No change in provisions on cooperation;
  • Article on meetings of States parties now list the matters that can be considered;
  • Several changes on articles on amendments; participation of civil society and their proposals are now included;
  • The article on relations with other agreements is better formulated now.

This brings me to the comparison with other disarmament processes. It must be stressed that no previous international agreement on nuclear weapons ever established a clear, legally binding obligation to disarm. Since the start of the nuclear age, all agreements have aimed at preventing proliferation. Progress was made in that direction, particularly with the NPT, the CTBT and the NWFZs.  Nuclear weapon States have been trying to interpret such agreements as legitimizing their exclusive possession of nuclear weapons. 71 years after the adoption of Resolution No. 1, the current negotiation, however, is the first serious attempt to establish a legally binding, irreversible and verified obligation to take effective measures to eliminate nuclear weapons. The NPT and customary international law require all nations – not just those that possess nuclear weapons – to negotiate for nuclear disarmament. The ban treaty will provide a solid foundation for future multilateral action.

I am sure that in the coming week there will be important comments and proposals and that different States and opinion groups will try to have their views reflected in the final product. In my view this final product must respond to the criteria needed for its effectiveness: it must be clear, simple, and provide for wide inclusiveness.

Regardless of the opposition and diffidence of the nuclear-armed nations, and although, as I said, further discussion is needed on some points, I have no doubt that we will adopt a treaty prohibiting nuclear weapons by consensus on July 7.  We are perfectly aware that this Treaty will not immediately halt nuclear weapons development or diminish the threat that current nuclear weapon arsenals pose to all humanity but it is an important step in the right direction. It inscribes into positive international law a repudiation of nuclear weapons and establishes a clear path toward their elimination.

Once adopted, the impact and effectiveness of this Treaty will depend essentially from its wide acceptance by States and the continuing and active support of civil society, particularly in those States that possess nuclear weapons and their allies. This will take time and considerable effort. In any case, the Treaty is a powerful statement of the will of the majority international community and public opinion worldwide to outlaw the most cruel and indiscriminate weapon of mass destruction ever devised. We are all committed to its success and its universalization.

Download the speech here: IPB – Side event 28-06-2017_Sergio Duarte

To all Lawyers: Sign the letter on the abolition of nuclear weapons

The IALANA (International Association of Lawyers Against Nuclear Arms) wants to draw attention to the second round of the discussions on a nuclear weapons ban treaty in New York. The aim is to have a letter signed by lawyers that stresses the importance of such ban and urges states to participate and sign the treaty. The letter can be found and signed https://www.ialana.info/lawyers-letter/

LAWYERS’ LETTER ON THE ABOLITION OF NUCLEAR WEAPONS

Nuclear arms are the only weapons of mass effect and destruction not yet prohibited by an international convention, even though they are the most destructive and indiscriminate weapons ever created.

People are capable of good-faith, law-guided, problem solving at all levels of society: family, neighborhood, national, international. Cooperative global systems have been devised for the protection of human rights, protection of the environment and prevention of climate change, prohibition of specific weapons, and more. These skills must now be applied to the next obvious step: the prohibition and elimination of nuclear weapons.

As lawyers we underline that the abolition of nuclear arms is required by an international legal obligation set forth in Article VI of the Nuclear Non-Proliferation Treaty and embedded in United Nations practice going back to the very first General Assembly resolution, in 1946. The International Court of Justice unanimously concluded in 1996 that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” That obligation is unconditional and universal.

We also emphasize that the use of nuclear weapons is presently incompatible with international humanitarian law regulating the conduct of warfare. Above all, due to their uncontrollable blast, heat, fire, and radiation effects, nuclear weapons cannot meet the requirement of distinguishing between the civilian population and combatants and between civilian objects and military objectives. Indeed, the catastrophic consequences of use of nuclear weapons vastly exceed the ordinary boundaries of armed conflict and adversely impact populations in neutral states, the natural environment necessary to sustain human life, and future generations. The use of nuclear weapons accordingly also violates international human rights law, most centrally the right to life. If a use of force is illegal under the UN Charter or humanitarian law, the threat to use such force is also illegal. However, the nuclear-armed states refuse to acknowledge these patent legal truths; hence the need to codify the illegality of use and threatened use of nuclear arms in a global prohibition.

The Emergency Committee of Atomic Scientists, including Albert Einstein, warned in 1947: “Through the release of atomic energy, our generation has brought into the world the most revolutionary force since prehistoric man’s discovery of fire. This basic power of the universe cannot be fitted into the outmoded concept of narrow nationalisms.” Yet today we face this incendiary combination once again.

Faced with the ongoing and intensifying planetary danger and no longer willing to accept a two-tier world, this year about 130 countries have joined together at the United Nations to negotiate a treaty to prohibit nuclear weapons, leading to their elimination. The nuclear-armed states and their closest allies have refused to participate. Nonetheless, the nuclear ban treaty effort constitutes an important affirmation of the norms against nuclear weapons.

We call on all nations to participate in the negotiations and to join the treaty once adopted. It will be a major step towards negotiation of a comprehensive agreement on the achievement and permanent maintenance of a world free of nuclear arms.

 

Further Impressions from the Ban Treaty Negotiations

Read the impressions from Alimzhan Akhmetov (Director of the Center for International Security and Policy, Kazakhstan) of the second negotiation round on a nuclear weapons ban treaty.

Red Flag from Nuclear Powers

We should give nuclear powers their due. They conducted a targeted work to reduce the number of States participating in the second session of the Conference to prohibit nuclear weapons, which started on June 15 in New York and will last three weeks, until July 7. […] Read the whole article here.

Positive obligations

June 20 this year in New York a major discussion of the States parties to the Conference on the Prohibition of Nuclear Weapons, like the close attention of civil society, was brought about by Article 6 of the draft Convention. […] Read the whole article here.

Dance around the “transit

During the negotiations on the draft Convention on the prohibition of nuclear weapons, an interesting discussion of the States unfolded around the provision prohibiting the transit of nuclear weapons. […] Read the whole article here.

The Shining Star

A month passed, as the President of the Conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination, the Costa Rican Ambassador Elaine White presented the draft Convention on the prohibition of nuclear weapons […] Read the whole article here.