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.

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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