Nuclear Ban Daily, Vol. 2, No. 4

Pathways to elimination
20 June 2017

Ray Acheson

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One of the most complex questions of the nuclear weapon ban treaty is how it should deal with nuclear disarmament. This was one of the main subjects of debate on Monday afternoon, and is dealt with in the draft treaty text in articles 2–5.

None of the nine states currently possessing nuclear weapons are engaging in these negotiations—some are actively hostile to the effort. Some claim (for now) to support the principle of nuclear disarmament, however. Their refusal to pursue relevant effective measures in good faith is the precise reason why nuclear ban negotiations are taking place at all.

Given this situation, states participating in nuclear ban negotiations have a few options. They can develop a set of strong prohibitions geared toward having practical impacts on current nuclear weapon policies and practices of the nuclear-armed and nuclear-alliance states, seeking to compel these states toward disarmament by stigmatising their policies and impeding their practices. They could also, in this treaty, set out a framework or parameters for future nuclear disarmament. These are not mutually exclusive options. But great care is needed to ensure that the treaty can achieve the first objective as a means to achieving the second.

As currently drafted, the treaty does not permit states possessing nuclear weapons or engaging in nuclear weapon alliance activities to join. It sets out provisions in article 4 for states to get rid of their nuclear weapons and then join the treaty (“destroy and join”). In addition, under article 5 the draft permits nuclear-armed and nuclear-alliance states to engage in negotiations with ban treaty states parties on protocols related to nuclear weapon programme elimination or “other effective measures” (as yet undefined) for nuclear disarmament.

Some states, such as Austria, Ireland, Mexico, New Zealand, and others, have argued that the treaty should be open to all states to join. They prefer a “join and destroy” approach to the treaty.

Initial reactions in today’s debate indicate some support for a standardised approach to elimination in the “join and destroy” vein. Others supported keeping two distinct pathways to disarmament open in this treaty—and some prefer to have none at all.

There are a variety of ways to achieve the goal of having the treaty be open to all states while preventing states from joining and maintaining nuclear weapons or nuclear deterrence policies—but careful crafting is necessary to achieve this.

South Africa introduced a proposal on Monday afternoon for articles 2 and 4 of the draft treaty that outlines a possible “join and destroy” option. In their proposal, any state may join the treaty after submitting a declaration about the status of nuclear weapon possession and other relevant activities. If a state joining the treaty possesses nuclear weapons, stations nuclear weapons on its territory, or engages in any planning, training, or military preparations for the use of nuclear weapons, it must cease these activities within an agreed timeframe specified by the treaty. The timelines are currently marked with an X, indicating that they are to be agreed by states negotiating this treaty now.

South Africa’s proposal leaves article 5 intact, but entirely deletes article 3 and its related annex on safeguards. It does require states to conclude a safeguards agreement with the IAEA by a particular deadline if they haven’t done so already, and it requires IAEA verification of “completeness and correctness” of a “Final Declaration” of all nuclear weapons that have been eliminated and that “all nuclear facilities and materials are under IAEA safeguards.”

While most states participating in these negotiations agree that new verification mechanisms are not necessary for this treaty, most also agree that the current IAEA safeguards system should be reinforced. There is also broad agreement on referring to the “safeguards system” rather than specific arrangements, some of which are now several decades old (e.g. the 45-year old IAEA model comprehensive safeguards agreement known as INFCIRC/153 or the 20-year old Additional Protocol).

This is not the place, as many delegations emphasised, to renegotiate the safeguards system, however imperfect. The Malaysian delegation argued the ban treaty must be dynamic, retaining the ability to incorporate protocols or other instruments at a later date as necessary. It is important to allow for various options, without pre-negotiating them at this stage. As Ireland noted, “We cannot see into the future, we can only allow for it.”

In this vein, Ireland also argued that this treaty might not want to set out detailed provisions for an elimination process. “It is not the mandate of this conference, nor is it feasible in the time available, nor is it in fact necessary, to negotiate detailed arrangements for the elimination of nuclear weapons now,” argued the Irish delegation on Monday afternoon, suggesting a slightly different formulation from South Africa. It suggested that a state that is not in a position to submit a declaration that it has not manufactured, possessed, or otherwise acquired nuclear weapons after a particular cut-off date, as specified under draft article 2, could still express its intention to join the treaty. A meeting of states parties could then establish the parameters for the process of negotiating the terms and conditions of their accession to the treaty. This might take the form of an additional instrument “to address the transparent, verifiable and irreversible elimination of their nuclear weapons programmes and arsenals.”

Negotiating parties must be cognizant of how states that have not participated in this process may approach the final instrument. If our goal is to compel them to join by making it more difficult—legally, politically, economically, and socially—to maintain their current policies and practices, then we need to have a strong, clear set of prohibitions and a feasible mechanism for them to join the treaty and accept these prohibitions. Achieving universality is the goal of any treaty—and surely should be the goal of a treaty seeking to end the nuclear weapon era.

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