Tuesday, 3 June 2014
Last May, a series of events titled “Maputo+15” was held in Geneva to draw attention to key issues arising at the Maputo Review Conference (23 to 27 June 2014) of the Anti-personnel Mine Ban Convention 15 years after the international community had first gathered in Mozambique to begin to implement that treaty. One of the events in the Maputo+15 series was a panel discussion on 21 May that addressed the issue “Is the Anti-personnel Mine Ban Convention (APBMC) sufficiently universalised?”
The object of universalisation is the acceptance of legally binding obligations under the Convention by the entire international community of nation states. The rationale is that the wider the acceptance of the obligations in the treaty the stronger will be the international law and norms it establishes. The more widespread the acceptance of the law created by any treaty, the stronger will be the international rule of law.
By the time of the first Review Conference in Nairobi, Kenya in 2004 there were an impressive 143 parties to the APMBC. Between entry into force in March 1999 and the Nairobi Review Conference five years later, parties joined on average at the astonishing rate of almost 30 every twelve months. By the second Review Conference in Cartagena, Colombia in 2009 the number had risen by 13 to 156 parties. By the time of the third Review Conference in Maputo this June that number will have increased by a further 5 to 161 parties.
If results-based accountancy rules were applied to those outcomes, clearly we are experiencing the law of diminishing returns. But it is significant nonetheless that the APMBC’s 161 parties constitute 84% of the international community of nation states. By comparison, there are 193 member states of the United Nations. In the arms control and disarmament field, the Nuclear Non-proliferation Treaty and the Chemical Weapons Convention each have 190 parties, the Biological and Toxin Weapons Convention 168, the Comprehensive Test Ban Treaty 162, the Convention on Inhumane Weapons 117 and the Cluster Munitions Convention 84 parties to date.
Of the 50 states that once produced anti-personnel mines, all but 16 are now party to the APMBC. It is also significant that, conscious of the stigma now attached to the use of anti-personnel mines, some states not yet party to the treaty have reduced their reliance on these weapons or modified their approach to them. For example, the US has not produced anti-personnel mines since 1997 and has contributed hundreds of millions of dollars to the assistance of victims of those weapons.
In terms of the objective of universalisation, some of the questions that can be expected to arise at the Maputo Review Conference are:
- how content should the international community be that 4 in every 5 states are party to the APMBC? Should parties express their satisfaction and devote their energies instead to universalising other treaties such as the Cluster Munitions Convention and the Arms Trade Treaty?
- how far have we come in terms of the promise by the parties to mine victims to end the suffering and casualties caused by anti-personnel mines, for all people for all time?
- in view of the diminishing returns mentioned earlier, should we approach norm-setting in a different way, e.g., through securing political commitments from those states that are reluctant to enter into the legally binding commitments of the APMBC?
For the panel in the Maputo+15 event, the answer to the question with which it had been tasked - whether the APMBC was “sufficiently universalised” - was ‘no’. The humanitarian imperative – the rationale of the APMBC – demands that strenuous efforts should continue to be made to sign up additional states. The focus should remain on the humanitarian impact of anti-personnel mines, not their perceived military utility.
Representations to each non-party should be pitched as having a practical purpose with an emphasis on enhancing the standing of that state in the international community as a measure of respect for international humanitarian law. It is important to demonstrate that the international significance of becoming party to the APMBC warrants the effort necessary at the domestic level to implement the obligations of the Convention.
Stressing that the rationale behind the proposed treaty action is in the national interest and will also promote regional solidarity are key ingredients in the campaign for universalisation. There should be a determination to reach the highest levels of Government, so that Ministers of parties use opportunities, for example at regional meetings, to lobby their non-party counterparts to join the treaty.
These are important questions and messages on the issue of universalisation for the representatives of the 161 parties to the APMBC to weigh when they gather in Maputo on 23 June 2014.
Tim Caughley, Resident Senior Fellow, UNIDIR
Monday, 2 June 2014
The work plan developed by Ambassador Dr Walid M Abdelnasser of Egypt, the Coordinator of the Conference on Disarmament's informal meetings on nuclear disarmament, raised for discussion some legal elements and approaches for achieving nuclear disarmament. On 22 May 2014, UNIDIR was asked to present a paper to the CD on that topic. The paper was not a complete survey, but merely a sample of relevant initiatives, proposals and papers. The first and second parts of the paper appear in earlier postings on this site. The third and final part of the presentation - a brief mention of several rationales for nuclear disarmament together with a summary of the paper as a whole, is the subject of this third and final posting.
Rationales for nuclear disarmament.
Under this heading, it should be mentioned (even though its context here is related more to the NPT than the CD) that the rationales of the NPT are threefold: to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament as part of general and complete disarmament.
Finally, a rationale for nuclear disarmament that appeared in the agreed principles and objectives in the 2010 NPT action plan included, amongst others, deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons. Presumably, agreed principles and objectives such as this one are seen as offering a rationale for all the legal vehicles outlined in the first of the three postings in this series.
To summarise the paper as a whole:
- There is a reasonably clear list of legal obligations that will be required to secure nuclear disarmament on a multilateral basis.
- There is also a range of legal vehicles through which those obligations can be expressed.
- In the meantime, in order to get down to the task of actually negotiating those vehicles, various approaches or frameworks are possible and warrant consideration, whether they are of a legally or politically binding nature.
- In exploring the way forward – as in these informal meetings of the CD, a number of rationales for and approaches to nuclear disarmament are also in play.
- Understanding and clarifying what is contemplated by the various approaches outlined here will be an important precursor to progress towards setting a legal course to the elimination of nuclear weapons.
- This forum – the Conference on Disarmament, which includes all nuclear weapons-possessing states, is an obvious starting point for clarifying objectives, mechanisms and vehicles, although the Open Ended Working Group and at least theoretically the NPT have potential in affording wider representation of states and the presence of civil society. Progress on nuclear disarmament – the oldest issue on the CD’s agenda – may be the touchstone of this body’s future.
Tim Caughley, Resident Senior Fellow, UNIDIR
The work plan developed by Ambassador Dr Walid M Abdelnasser of Egypt, the Coordinator of the Conference on Disarmament’s informal meetings on nuclear disarmament, raised for discussion some legal elements and approaches for achieving nuclear disarmament. On 22 May 2014, UNIDIR was asked to present a paper to the CD on that topic. The paper was not a complete survey, but merely a sample of relevant initiatives, proposals and papers. The first part of the paper appears in an earlier posting on this site. The second and penultimate part of the presentation included these remarks:
Approaches on how to achieve nuclear disarmament
These can be categorised as follows:
a) the legal vehicle or vehicles or means of achieving nuclear disarmament;
b) a mixture - that is, a legally binding process describing agreed stages by which nuclear disarmament would be achieved and prescribing the legal form of them; and
c) descriptions of possible processes for making progress in the interim towards the initiation of legally binding processes for achieving nuclear disarmament.
a) The legal vehicle or vehicles or means of achieving nuclear disarmament
Under this heading, the most commonly mentioned treaty-based approaches are:
(i) A comprehensive Nuclear Weapons Convention, an example of which is the model Nuclear Weapons Convention tabled in the UNGA by Costa Rica and Malaysia (A/C.1/52/7), discussed in the CD, Open-ended Working Group (OEWG) and in the NPT. The Convention would prescribe prohibitions and general obligations for effecting a time-bound, irreversible and verifiable nuclear disarmament treaty, complementing the Biological and Toxin Weapons and Chemical Weapons Conventions. This approach more or less seeks to achieve the elimination of nuclear weapons in a single, legally binding step, although it would supplement existing treaties such as the NPT and CTBT (when in force). And while it would encapsulate nuclear disarmament in a single treaty it nonetheless entails a staged approach for elimination over five, time bound phases. Negotiating a comprehensive nuclear disarmament regime in one instrument would clearly be ambitious and complex, and its critics prefer to tackle the phases in separate legal instruments.
(ii) A Convention Prohibiting the Use of Nuclear Weapons. In 1961, the UN General Assembly adopted Resolution 1653 declaring the use of nuclear weapons “a crime against mankind and civilization”. A Convention on the Prohibition of Use of Nuclear Weapons was proposed by India originally in 1978 and in a UNGA resolution in 1982 and in the CD (CD/1816) in 2007. India argued that reducing the salience of nuclear weapons in strategic and security doctrines and policies was essential for realizing the goal of complete elimination of nuclear weapons. Alignment of nuclear doctrines to a posture of ‘no-first-use’ and non-use against non-nuclear-weapon states by all nuclear weapon states would, in India’s view, be an important step towards achieving that objective. Critics of an approach that would only prohibit use argue that, on its own, it would still leave nuclear weapons in the hands of existing possessors unless it was coupled with binding commitments leading to time bound elimination. There is also the question, raised by the ICJ in its 1996 Advisory Opinion, as to whether use in self-defence would be outlawed by a prohibition on use.
(iii) No First Use Convention. This approach envisages a binding legal commitment by nuclear-armed states that they would never, under any circumstances, be the first to use nuclear weapons. The International Commission on Nuclear Non-proliferation and Disarmament said that it was clear from the soundings they had taken that international civil society organizations were unlikely to be enthusiastic about a treaty “which (even if ‘no first use’ is acknowledged as a useful station on the way to zero) is not itself premised on the elimination of nuclear weapons” (www.icnnd.org).
(iv) A Nuclear Weapons Ban Convention. Such a treaty would set out the prohibitions required for the pursuit, achievement and maintenance of a world free of nuclear weapons. It would prohibit the parties from engaging in any activity related to the use, development, production, stockpiling, acquisition, deployment, transfer or financing of nuclear weapons. This approach might explicitly or tacitly recognise that further legally binding steps would be needed to secure the elimination of nuclear arsenals. Detractors of this approach argue that it would be sustainable only if the nuclear weapons possessing states participated and became party to the resulting treaty. On the other hand, the case against proliferation of nuclear weapons – supported strongly by all countries including nuclear weapon states - rests heavily on their prohibition. The recent paper of NGOs Reaching Critical Will and Article 36 on a legal framework for the prohibition and elimination of nuclear weapons explores these issues further.
b) A framework - that is, a legally binding process describing agreed stages by which nuclear disarmament would be achieved.
An interim step, pending the negotiation of an agreement of the kinds just outlined, would be to negotiate a legally binding framework under which nuclear disarmament would be achieved on a serial basis through completing the various stages set out in that framework – that it, a treaty-based recipe for the route to eventual elimination. Examples are the Convention on Conventional Weapons with its 5 Protocols and the Geneva Conventions on the law of armed conflict with their Additional Protocols.
In his 5-point plan for nuclear disarmament, the UN Secretary-General described that approach as “a framework of separate, mutually reinforcing instruments”. Recently, this point was expanded slightly in a paper tabled in the NPT by the New Agenda Coalition. That paper envisaged a step-by-step or building blocks approach within “clearly identified elements including a number of free standing instruments or treaties dealing with specific aspects of nuclear disarmament”.
In these examples, use of the word “instruments” could conceivably be interpreted flexibly to include non-legally binding frameworks. If so, it might be a matter for discussion in this Conference as to whether a framework covering something as complex and necessarily lengthy as the sequence of agreements leading ultimately to the elimination of nuclear weapons can be left to a non-binding arrangement. On the other hand, the development of a framework without determining at the outset whether it was to be legally binding might be a useful confidence building measure, offering a new perspective to the CD deadlock over some of the individual components of a framework such as a Fissile Material Treaty, Negative Security Assurances and nuclear disarmament in general.
c) Descriptions of possible processes for making progress on or achieving nuclear disarmament.
(i) Sequential stages towards elimination.
There is not time or space here to list all the proposals, processes or means of making progress on nuclear disarmament favoured by states and groups of states. Some of them are inherent in legally binding approaches just described. The most commonly voiced involve the idea of sequential stages towards elimination. These include general descriptions such as building blocks, step-by-step or phased approaches. In reality, such descriptions do not - on their own - take us very far. Not only are the next steps deadlocked or unavailing (e.g., programme of work in the CD, entry into force of the CTBT), but also it is axiomatic that in something as complex politically and technically as the verifiable elimination of nuclear weapons a series of measures is inescapable. A challenge for those advocating a step-by-step or building blocks or phased approach is to articulate clearly the actual steps or blocks or phases and their sequence.
(ii) Additional specific proposals or possible approaches.
- Timebound: A Programme of Action was tabled in the CD by the Group of 21 in August 1996 calling for negotiations on a phased programme of nuclear disarmament for the eventual elimination of nuclear weapons with a specified time frame as soon as the CTBT negotiations were concluded.
- Venue for negotiations: In 1998 South Africa proposed that the CD establish an ad hoc committee on nuclear disarmament to deliberate upon practical steps for systematic and progressive efforts to eliminate nuclear weapons as well as to identify if and when one or more such steps should be the subject of negotiations in the Conference. That same year Canada proposed that the CD establish such a committee with a view to identifying if and when one or more nuclear disarmament issues might be negotiated multilaterally.
- “Effective measures”: The New Agenda Coalition recently tabled a paper in the NPT with a number of options for the development of “effective measures” drawing on the wording of article VI of the NPT. One of those options, as already mentioned, is a framework arrangement of mutually supporting instruments aimed at achieving and maintaining a world free of nuclear weapons.
- NWFZs: Another approach sometimes pondered in the margins might be to develop and expand nuclear weapon free zones, perhaps through focusing first on similarities amongst existing zones and then by exploring scope for synergies amongst them.
- And lastly among this small sample of approaches are action plans: In the case of the NPT, there are the 13 steps of the 2000 Review Conference, reiterated (though modified) in the more comprehensive 2010 action plan.
A third part of this paper, a brief mention of several rationales for nuclear disarmament together with a summary of the paper as a whole, will be the subject of a third and final posting.
Tim Caughley, Resident Senior Fellow, UNIDIR
The work plan developed by Ambassador Dr Walid M Abdelnasser of Egypt, the Coordinator of the Conference of Disarmament’s informal meetings on the CD's agenda item on nuclear disarmament, raised for discussion some legal elements and approaches for achieving nuclear disarmament.
On 22 May 2014 UNIDIR was asked to present a paper to the CD on that topic. The first part of the paper included these remarks based on Egypt's work plan:
On 22 May 2014 UNIDIR was asked to present a paper to the CD on that topic. The first part of the paper included these remarks based on Egypt's work plan:
Elements required to achieve nuclear disarmament: Key prohibitions
To be able to achieve nuclear disarmament, certain key prohibitions will need to be established through legally binding commitments.
These may include obligations:
- obligations not to retain, produce, develop, acquire, test, deploy, stockpile, maintain, transfer or finance the development of nuclear weapons, related nuclear materials, delivery systems and components,
- obligations not to use or threaten to use nuclear weapons;
- obligations to destroy or convert for non-weapon purposes all production and development facilities, as well as delivery systems, command and control facilities; and
- obligations to place under international safety controls, materials for nuclear weapons (highly-enriched uranium, uranium-233, plutonium, tritium, etc.).
To implement these obligations, it will be necessary to agree on some or all of the following aspects:
- phases for implementation;
- an implementing secretariat or international agency;
- individual declarations by nuclear weapon states on aspects of elimination specific to each such state;
- national implementation through new domestic legislation;
- cooperation, compliance and dispute settlement; and
- final clauses on entry into force, signature, ratification and accession, amendments, withdrawal, reservations, etc.
In addition to declarations by nuclear weapon states, there are likely to be – as in the Chemical Weapons Convention - various annexes and protocols on handling confidential information. Some details of verification, confidence building measures, nuclear activities, delivery vehicles and disposition of special nuclear materials may also be set out in annexes.
Further postings will cover points made during the same presentation under the heading “Approaches on how to achieve nuclear disarmament”. Those postings will list various legal vehicles or means through which the elimination of nuclear weapons may be pursued, as well as common rationales for those vehicles and processes for giving effect to them.
Tim Caughley, Resident Senior Fellow, UNIDIR
Thursday, 8 May 2014
During the current session of the NPTPrepCom much mention was made of various possible approaches and vehicles for implementing article VI of the NPT on nuclear disarmament. These included building blocks, step by step, giving effect to the 2010 NPT action plan, devising frameworks, comprehensive approach, Model Convention, action plan with a clearly defined timeframe, comprehensive and legally binding framework, humanitarian approach, a ban on possession of nuclear weapons, and more. This mix of possible procedural, legal and organisational devices is confusing especially when some states offer few insights into what they mean by the particular approach they support, let alone how to take it forward.
Some clarity, however, was provided, notably by papers that were the focus of a side event* on 2 May organised by the NGOs, Reaching Critical Will and Article 36. The papers (see links below) helped draw attention to what article VI itself specifies – the need for “effective measures relating to nuclear disarmament”. So does it really matter how a particular approach is characterised when the focus should be on the question of what will be effective?
Obviously, that is not going to be the end of the matter because of the subjectivity involved. And the drafting of article VI is somewhat convoluted. Nonetheless, legal advisers in nuclear weapon states are likely to tread cautiously in any debate over the meaning of “effective measures”. Those words need to be interpreted in the spirit of the NPT as a whole including the goal of elimination mentioned in the preamble and the question of good faith required by article VI.
Similarly under scrutiny will be obstacles placed in the way of pursuing effective measures towards nuclear disarmament, or seeming indifference to the need to resolve implementation blockages in a constructive, timely way. The development of some impetus for nuclear disarmament - injecting new life into the issue – has become inevitable. The hope inspired by President Obama’s Prague speech has not been reflected in the forums where this business would normally be transacted. Inertia in established multilateral processes and arenas has been a spur to challenging traditional approaches both in terms of substance and forum. An example is the empty debate over what is the ripest issue for negotiation in the Conference on Disarmament (CD) and the lack of any sustained moves to broker compromise there.
The absence of consensus on any one of the four mandates embodied in the work programme of that Conference since 2000 means that nothing happens on any of them. Nuclear disarmament, the oldest of the 4 core issues, has been an enduring casualty. Indeed, the entire multilateral nuclear disarmament scene is the cause of widespread concern. The CD’s integrity is at stake, CD issues such as fissile materials have temporarily moved to another forum, the NPT has experienced healthier days, the UN Disarmament Commission had an unproductive 2014 session. And the Open-ended Working Group on nuclear disarmament was shunned by the NPT nuclear weapon states.
It is hardly surprising that new ways for dealing with nuclear disarmament have emerged. These changing dynamics during the current NPT review cycle have led to almost a dozen multilateral and legal initiatives since the 2010 Review Conference. Those initiatives have as their underlying message to the nuclear weapon states that concrete efforts are needed in terms of producing effective measures toward nuclear disarmament. Yet, one such initiative, the humanitarian approach, has been criticised by nuclear weapon states in particular as a challenge to the authority of the NPT. Unfortunately, the humanitarian approach has been misconstrued by the NPT nuclear weapon states, and invitations to attend the Oslo and Nayarit conferences on the humanitarian impact of nuclear weapons were turned down by them.
The criticism of the humanitarian approach as “parallel” to the NPT disregards the preamble of the NPT and the 2010 Action Plan. This is an echo of criticisms made by some non-nuclear weapon states about “parallel” measures for non-proliferation pursued by the nuclear weapon states a decade ago. In reality, it is hard to differentiate the pedigree of the humanitarian approach from that of the P5 process initiated five years ago by the NPT nuclear weapon states and which met last month in Beijing. That is not to belittle the P5 process in any way – greater leadership by the nuclear weapon states towards the implementation of article VI would be welcome.
The extent to which the nuclear weapon states are responsive to the frustrations of non-nuclear weapon states can be gauged by measuring signs of increased transparency of their nuclear weapon holdings and greater commitment to NSAs in the context of Nuclear Weapon Free Zones in Asia. Evidence of progress on these fronts can perhaps be attributed to the growing pressure stemming from the new initiatives on nuclear disarmament, although disappointment marks many responses to date.
In any event, when the five-yearly NPT Review Conference meets in 2015 to take stock and consider the next steps for the full implementation of article VI, it will be difficult to overlook increasing efforts by frustrated non-nuclear weapon states to turn attention away from perceived military and security values of nuclear weapons to their actual humanitarian impacts. The meaning of the words “effective measures” in article VI will be more readily demonstrated when such measures are seen as reinforcing the reality that a nuclear war in humanitarian terms is unwinnable and that an accidental detonation is not a hypothetical eventuality.
There are valuable tools at hand for developing effective measures through papers tabled in the NPT PrepCom by the New Agenda Coalition and one published by Article 36 and Reaching Critical Will. Those papers help reduce obfuscation and sharpen the focus on how to get multilateral negotiations on nuclear disarmament under way as required by article VI. The clearer and simpler the message the better chance there is of gaining traction.
The ultimate effective measure is of course a legally binding, universally observed, fully verified “elimination from national arsenals of nuclear weapons and the means of their delivery” to quote the NPT. But given that this end is not yet in prospect, what are the most effective measures towards that objective? What comes immediately to mind is the need for the development of the notion of “timeliness”. This is a concept that has been vigorously contested in the NPT for much of its long life without success.
If the 13 steps agreed at the NPT Review Conference in 2000 represent the clearest direction to date on the route to elimination, they lacked a crucial indication of effectiveness. Efforts to define a timeframe for their implementation, let alone the means of assessing progress on their fulfilment, were steps too far for the nuclear weapon states in 2000. There were some vague expressions of time, and even a specific one in relation to the conclusion of a ban prohibiting the production of fissile material. But there was nothing that would facilitate real accountability - nothing that would enable effective monitoring of progress towards implementation.
Continuous resistance to a results-based approach using milestones and timelines let alone deadlines raises serious questions in terms of article VI. Pursuing the recognition of timeliness as a principle of effectiveness among the pantheon of NPT principles, notably those agreed in 1995, may seem inconsequential, perhaps derisory, given how long the NPT has been in force. But it is surely a litmus test of intentions and even of interpretation of the Treaty.
* "Effective measures for nuclear disarmament" was the title of an event hosted on Friday, 2 May at UNHQ, New York. It was organized by Reaching Critical Will and Article 36 and took place in the margins of the NPT Preparatory Committee meeting. Michael Hurley of Ireland spoke to the New Agenda Coalition’s document on article VI of the NPT and Ray Acheson of RCW introduced the joint RCW/Article 36 publication exploring the development of a legal framework for the prohibition and elimination of nuclear weapons. This posting contains contextual remarks made at that event by Tim Caughley, a senior fellow at UNIDIR.