Nuclear Weapons Prohibition Negotiations

UNIDIR side-event on 22 June 2017, Conference Room 1, at United Nations Headquarters during negotiations on a Nuclear Weapon Prohibition Treaty:  

Remarks by Tim Caughley introducing UNIDIR publication ‘Negotiation of a Nuclear Weapons Prohibition Treaty: Nuts and Bolts of theBan’. The negotiation’s formal title is ‘United Nations Conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination’.

The first of these two papers deals with a large number—but not all—of the draft articles in the Conference President’s first draft of a nuclear weapon prohibition treaty or convention.

I’m going to use ‘treaty’ and ‘convention’ interchangeably because, as legally-binding agreements or instruments under international law, treaties and conventions have equal legal effect despite views expressed to the contrary during the negotiations: point number one.

Point number two: Since that paper was written and placed on line at the beginning of this session on 15 June 2017, the negotiations in this room have come quite a long way. The paper remains relevant, though, because it focused on the issues rather more than on the wording of the draft treaty.

My third point is about the lens through which we viewed the President’s first draft of the treaty. This, I would describe, as ‘principle meets pragmatism’. Or, as better expressed by Ms Izumi Nakamitsu, the United Nations High Representativefor Disarmament Affairs at the opening of this session of the Conference on 15 June: ‘legally sound, technically accurate, and politically wise’.

This leads me to point number four. The prohibition convention is not intended to provide a comprehensive treatment of verified dismantlement and elimination of nuclear armaments as envisaged in the ‘Model Convention’ put forward in the Conference on Disarmament and United Nations originally 20 years ago by Costa Rica and Malaysia.

Three weeks in which to negotiate a comprehensive agreement would not be nearly enough. There have been occasions during the past few days when I have felt that ambitions voiced here would have been more appropriate to a comprehensive convention than to a mere prohibition. I make this point for two reasons:

- One, to take issue with a related point implicit in some interventions that a credible outcome to these negotiations cannot be achieved in three weeks. It can. A prohibition treaty can be both succinct and aspirational.

- This is related to the second reason. — As was foreshadowed in the President’s first draft—and as has become clearer during these negotiations—a prohibition treaty offers in part a framework of sorts for future developments.

These developments include, for example,

- the addition of protocols (another type of binding agreement) by which nuclear-armed states can join the prohibition convention (as discussed in the second paper of this UNIDIR publication); and

- decisions taken by States Parties at their regular meetings or Review Conferences.

In other words, the treaty can recognize and provide for second generation issues recognizing that as Ireland explained: ‘we cannot see into the future, we can only allow for it’. As UNIDIR notes in our paper, the level of ambition of the treaty needs to be tempered by this reality. Ideally though, matters that are to be left for further treatment will be described as clearly as possible in the final text for the future guidance of States Parties. Nonetheless, the mandate for meetings of States Parties should not be a straitjacket, but contain a reasonable degree of flexibility, a point stressed by Sweden among others.

This leads me to my fifth and sixth points.  Point number five is that the preamble will, of, course, provide fundamental context—the treaty’s so-called object and purpose—by way of direction for States Parties down the track. But to me, this does not mean that the Preamble should be the proverbial Christmas tree—all bells and whistles. It should on the contrary be short, succinct and to the point. The clearer it is, the better will be the foundation for dealing with second generation issues,

Relatedly, (point six) the treaty as a whole needs to be very clear about its relationship with other relevant agreements, principally the Non-Proliferation Treaty (NPT) and the non-proliferation regime, Nuclear Weapon Free Zone Treaties, and the Comprehensive Test Ban Treaty and its verification arm. The prohibition convention needs to sit comfortably as one among a number of elements leading ultimately to the elimination of nuclear weapons (as contemplated in the title to this conference and the United Nations General Assembly Resolution that established it).

Obviously the NPT, as such a widely subscribed treaty, deserves greatest care in such an act of alignment.  This is not only because of its near universal status, but also because of the sensitivity of nuclear weapons-possessing States not party to it to the manner in which the NPT is referenced, for instance, in United Nations General Assembly Resolutions.

In the final analysis, the effectiveness of the prohibition treaty will be measured by its success in eventually securing the commitment of all States not to possess or use nuclear weapons. The prohibition treaty truly needs to provide a framework under which all States are able to join sooner or later thereby preserving the post-dismantlement era as a nuclear weapon free one. And I’ll stop there.

Tim Caughley

Resident Senior Fellow, UNIDIR

Nuclear Disarmament: Humanitarian Consequences: OEWG

Dr. John Borrie, UNIDIR’s Chief of Research, made a presentation on 26 February to the Open-ended Working Group (OEWG) which is meeting in Geneva this year.

The presentation was entitled: 'Measures to increase awareness and understanding of the complexity of and interrelationship between the wide range of humanitarian consequences that would result from any nuclear detonation’.

The text of the presentation can be found on the OEWG's website via this link.

The OEWG was established by the United Nations General Assembly for the purpose of ‘taking forward multilateral nuclear disarmament negotiations’. It opened in Geneva on 22 February. Its next session begins in Geneva on 2 May.

Tim Caughley
Resident Senior Fellow

Nuclear Disarmament: OEWG

The 2016 Open-ended Working Group (OEWG) established by the United Nations General Assembly for the purpose of ‘taking forward multilateral nuclear disarmament negotiations’ opened in Geneva on 22 February. The text of remarks made by UNIDIR during the opening session of the OEWG have been posted (in two parts) on the joint UNIDIR/ILPI website, ‘Effective Measures’. 

The links are:

http://unidir.ilpi.org/?p=460

http://unidir.ilpi.org/?p=463

The remarks were made by way of introduction to OEWG Brief no. 2, a paper prepared by UNIDIR as background for participants in the OEWG.

Tim Caughley

Resident Senior Fellow

UNIDIR

Effective Measures: New Blogsite

While this is the first posting on this site for several months, readers should be aware of postings on an additional site.  The new site stems from collaboration between UNIDIR and ILPI, the International Law and Policy Institute of Norway.

The joint UNIDIR/ILPI site - http://unidir.ilpi.org/ - is entitled ‘Effective Measures’.  This is a reference to the legally binding commitment under article VI of the NuclearNon-proliferation Treaty (NPT) that obliges all NPT parties 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 …’.

The new site, thus, concentrates on nuclear disarmament.  Its principal objective is to offer analysis and thoughts on the development of the humanitarian initiative on nuclear weapons.

To date there have been 5 postings on the UNIDIR/ILPI site. They can be accessed as follows:

• Why so surprised?
• Outrunning a bear is a relative thing: US and UK participation in the Vienna conference
• Vienna Day 2: The end of the beginning
• Vienna Day 1: A rich and successful first day
• An ever clearer message from civil society

UNIDIR’s Disarmament Insight blogsite will continue in existence – comments, views, critiques continue to be welcome.

Tim Caughley

Nuclear disarmament: CD informal meeting (2)

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