Nuclear Ban Daily, Vol. 2, No. 6
The ban and other law
22 June 2017
On Tuesday morning, the conference wrapped up its read through of the President’s draft treaty text. In the afternoon, states engaged in an informal, off-the-record discussion. We are not reporting on that session but welcome the decision to permit civil society to observe.
In terms of the draft text, one of the issues discussed on Tuesday morning was the relationship between this treaty and the Non-Proliferation Treaty (NPT), which is currently described in article 19. Since the process to ban nuclear weapons began its supporters have had to defend against accusations of undermining or even destroying the NPT. Such accusations are not based on any real risk or challenge to the NPT regime. The ban treaty is an attempt by most NPT states parties to help fulfill their article VI obligations under the NPT to pursue in good faith effective measures for nuclear disarmament.
The current wording in the draft treaty is problematic. It currently states that this treaty “does not affect the rights and obligations” of NPT states parties. Article 30(2) of the Vienna Convention on the Law of Treaties notes that, “When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of the other treaty prevail.” Whilst the nuclear weapon ban treaty is complementary to the NPT, the NPT’s provisions must not prevail over the ban treaty’s. One concern raised by several states during these negotiations is that the nuclear-armed states would try to argue that their (erroneous) assertion that they have a “right” to possess nuclear weapons under the NPT would override the ban treaty’s prohibition of these weapons.
One option is to delete article 19, as some states such as Egypt and others suggested. Another is to follow Malaysia’s suggestion to use the formulation from article 26 (1) of the Arms Trade Treaty, which reads, “The implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing or future international agreements, to which they are parties, where those obligations are consistent with this Treaty.” This formulation seems like it should assuage any concerns that the ban undermines the NPT whilst not subjecting the ban to the NPT’s problematic elements or interpretations.
The NPT is also referred to in the draft preamble, and that should also guard against those who wish to disparage the ban treaty as an attack on that regime. The language in the revised text is awkward, however. A reference simply to the NPT would be sufficient, as the “three pillar” concept is not enshrined in that treaty.
Other aspects of the revised preamble are very welcome. The reference to the disproportionate impact on indigenous peoples from nuclear weapon activities is reflective of the wide support indicated in the room for such language. There is also a new paragraph that recognizes the “equal, full and effective participation of both women and men is an essential factor for the promotion of and attainment of sustainable peace and security,” and expresses commitment “to support and strengthen effective participation of women in nuclear disarmament.” This is important for building upon commitments made by states in other forums and contexts to promote women’s participation as well as to incorporate gender perspectives into this work. The reference to gendered impacts of nuclear weapons is still limited to ionizing radiation. This should be changed to the “disproportionate impact of nuclear weapons on women and girls,” in recognition that these effects are not just physical but also social, cultural, and economic.
It is good to see human rights law reflected in the revised preamble, though environmental law is missing. The preamble should acknowledge the principles enshrined in international environmental law. Both of these references will help reinforce the positive obligations under development regarding victim assistance and environmental remediation.
This is, after all, the point of the preamble—to send a clear political message about the motivations and philosophical framing of the treaty, and where possible to provide guidance and reinforcement for the implementation of its provisions. In this sense it is crucial that the preamble not become diluted but that it includes the strongest, clearest possible language. The latest draft is a good step in that direction.