Long time reader, first time Wonker. My thanks to the Wonk-Supreme for allowing me to contribute.
The president of the negotiations for a nuclear weapons ban convention has just released her first draft of the proposed treaty. As will become readily apparent, I am not an expert on international law, but I am a keenly-interested observer of the effort to negotiate a ban on nuclear weapons. I am also an admitted ban skeptic, not because I want to keep nuclear weapons but because I have am concerned the ban diverts scarce resources and attention from readily-identified blockages to nuclear reduction and elimination. However, as a life-long supporter of nuclear reductions and disarmament, I support efforts to harness global frustration with the pace of nuclear elimination to advance disarmament in a way that advances global security. So if there is to be a ban, I want it to be additive. An initial read of the just released draft text raises new questions and concerns, some more important and less easily resolved than others. Keeping in mind a first draft is just that, a first draft and will undoubtedly be improved and clarified as talks continue, my concerns and questions fall into the following categories:
1) Stationing – NATO countries agree to share the burden of nuclear deterrence in a variety of ways. One is that some NATO countries agree to station forward deployed nuclear weapons on their territory to enhance the credibility of reassurance and deterrence. The draft treaty would prohibit this by banning any member state from allowing nuclear weapons to be stationed on their territory. I have long supported the withdrawal of forward deployed nuclear weapons form NATO as part of a verified agreement with Russia to return its own tactical nuclear weapons to central storage. However, the ban treaty would put NATO states at an immediate disadvantage and without Russia having to modify its deployments or verify their storage away from the battlefield. Already skeptical of the realism of the ban convention, this clause will add to the concern the United States and NATO countries have expressed toward the ban. If the Treaty enters into force, could a country seek a new legal ruling from the International Court of Justice (ICJ) that NATO states with nuclear weapons on their territory are violating international law? Would they have to choose between compliance with a ruling and NATO membership?
2) Testing – Article I of the draft treaty duplicates the language of the Comprehensive Nuclear Test Ban: “Each state undertakes never under any circumstances to . . . [c]arry out any nuclear weapon test explosion or any other nuclear explosion.” While the authors almost certainly intended to be supportive of efforts to ban testing, the terms of the CTBT are embedded in a specific framework that includes provisions for monitoring and on-site inspection, establishment of the Comprehensive Test Ban Organization, the International Monitoring System, and an understanding among the nuclear weapons states regarding permitted activities such as subcritical nuclear testing. Replicating the language here creates an uncertain relationship between the two obligations, raising the possibility that the ban treat will do harm to CTBT.
3) The Nonproliferation Treaty (NPT) and the Ban – Article 19 of the draft treaty states that the “[c]onvention does not affect the rights and obligations of the States Parties under the Treaty on the Non-Proliferation of Nuclear Weapons.” The NPT recognizes that states who conducted a nuclear test before 1967 will continue to possess nuclear weapons and “[e]ach of the Parties to the Treaty undertakes 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, and on a treaty on general and complete disarmament under strict and effective international control.” If the ban convention enters into force and takes on the weight of a new international legal norm that would apply even to states who have not joined the agreement, then would the NPT’s allowance of nuclear possession stand or be reversed? Can the ICJ find nuclear possession by NPT nuclear weapon states illegal? This is not a criticism of the draft text, but a serious question that would need extensive analysis by legal scholars and would need to be reflected in the negotiations. It is also a central concern of most, if not all nuclear weapon states and their treaty allies with regard to the ban and its impact.
4) The Role of the International Atomic Energy Agency (IAEA) – The draft treaty would erase almost 20 years of progress on IAEA safeguards. We have come a long way since the INFCIRC 153 was the standard upon which the IAEA was based. The IAEA safeguards system has adapted to modern realities and technology through the creation and broad implementation of the Additional Protocol (AP). Some non-nuclear weapon states have resisted adopting the AP as a new standard for safeguards not wanting to take on new obligations unless the nuclear weapon states do more to fulfill their commitments to general and complete disarmament. Putting aside both parts of this debate, adopting a standard for verification that is less than the best the IAEA and member states have achieved undermines nonproliferation and the goal of disarmament. Some nuclear weapons states will see this choice in the ban convention as another sign that it is mainly a mechanism to push obligations on nuclear weapon states and their allies.
5) Entry into Force – The draft treaty as drafted would enter into force once 40 states join. It sets no sub-category of states regionally or technically related to their status as alliance members or states capable of producing nuclear weapons. Thus, 40 countries relatively unaffected by global security or nuclear security considerations could be in a position to set a new normative legal standard that would apply to all states. The thinking behind this, as opposed to other possible standards will be a question worthy of attention when the next round of talks begin this June.
I can see ways a ban would be additive and helpful to U.S. and global security and advance disarmament. However, a ban treaty that would undermine the affirmative and voluntary basis for reassurance among allies and undermine the standards set in the CTBT and for IAEA safeguards is one that should be viewed with great concern. Maybe my parents were right and I should have become a lawyer, but barring a time machine I will be asking my legal scholar friends for their opinions on what these questions mean for the future of the ban, the NPT and disarmament if implemented as drafted.
Comments(2)
Thanks Jon for initial comments on the draft ban treaty text - it is good to see this effort attract some consideration from Washington given the official USG rejection of these negotiations. A few thoughts in response to your analysis as well as on other points: 1. "Threat of Use": Preamble and Art I is silent on the threat of use of nuclear weapons. The IALANA Discussion paper of March 24, 2017 persuasively argues for the necessity to prohibit the threat as well as the use of nuclear weapons. The paper notes "Delegitimizing 'nuclear deterrence' is essential to achieving the abolition of nuclear weapons" and by ignoring 'threat of use' the draft provides a loophole for those NNSW allies which wish to straddle the fence of supporting both nuclear deterrence and nuclear disarmament. 2. Stationing: The aircraft delivered nuclear bombs in Europe are a problematic burden best eliminated even if on a unilateral basis. There are other more relevant ways for allies to demonstrate a contribution to collective defence. 3. Status: You seem to ascribe more power to the ban as a legal norm than is warranted. Non parties to a treaty are not bound by its provisions and the threshold for recognition as customary international law is quite high. 4.CTBT: Understand concern but problem is that CTBT has not entered into force. 5. Article IV: I'm confused by 5Dec2001 reference, what about all nuclear armed states (save DPRK) that had nuclear weapons prior to then. Is this what ArtV is to manage? 6. Safeguards: Agree it would be best to set CSA+AP as the standard. 7.Reporting: ArtIX makes reference to reports on implementation, but there is no provision in the treaty for requiring this. 8. Institutional support: UNODA should be provided with some extra staff support for treaty implementation and follow-up. 9. Entry Into Force requirements: NPT required 40+3(UK,USSR,US) for EIF so draft is in line with similar accords. Perhaps some percentage of global population could be added as well. Nuclear insecurity affects all. 10. Ban-NPT relationship: this is likely to be problematic going forward and NPT states parties, especially NWS will have to get serious about repairing the cracks in the NPT edifice before it collaspes on itself. Ostrich behavior is not the appropriate response to the challenge to nuclear orthodoxy the ban treaty represents.
Thanks Jon for this analysis. You do not need to worry about the legal obligations the Ban Treaty may place on the U.S. and other NWS or umbrella states. Art. 34 of the Vienna Convention on the Law of Treaties states "A Treaty does not create either obligations or rights for a third state without its consent." The same goes for "international law," "customary international law " or "international norm," all terms that get thrown around rather loosely. People can debate the non-legal term "taboo." There will be many "persistent objectors" to the Ban Treaty, which will also weaken its legal force on non-parties. Early claims by supporters of the Ban Treaty that it will become "international law" and thus binding on all states have been largely dropped. Of course, it will carry considerable political and moral weight and may well influence how the NWS proceed with their step-by-step approach. I am writing a larger article on all this and will be speaking about it at the CTBT Science & Technology Conference in Vienna next month. Ed
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