Nuclear Ban Daily, Vol. 2, No. 9

Running through draft two
28 June 2017

Ray Acheson

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The President’s team released a new draft treaty text on Tuesday morning, which was the focus of the debate in the afternoon plenary session. The overwhelming majority of states taking the floor said that this text is going in the right direction, is a good basis for further work, and reflects many of the points of convergence reached last week. All states did say the text needs further work, but most expressed confidence that agreement could be reached on a treaty by 7 July. This is welcome news.

States seem generally pleased with the preamble. The preamble would benefit from the addition of a reference to the principles of international environmental law, to complement the references to international humanitarian law and human rights law.

The introduction of a new paragraph on nuclear energy, however, is extremely problematic. The paragraph affirms an “inalienable right” of states parties to “peaceful uses” of nuclear energy. This so-called right is enshrined within the Non-Proliferation Treaty (NPT) and reflects an outdated understanding of the risks of this technology and an ill-conceived bargain to help convince non-weapon states not to develop nuclear weapons.

We now know that nuclear energy increases proliferation opportunities. All nine nuclear weapon states have used nuclear reactors to create plutonium for their nuclear weapons. In Britain and France, civilian nuclear energy and military programmes overlapped. North Korea and India acquired nuclear weapons through so-called “peaceful” civilian nuclear programmes. Fears about Iran’s nuclear energy program drove a major diplomatic effort to limit its weapons potential.

The economic, environmental, humanitarian, safety, and security challenges of nuclear energy are there for all to see in the persistent health and environmental impacts of uranium mining and nuclear waste, and catastrophic impacts of nuclear energy seen at Chernobyl and Fukushima. This treaty may not be able to do anything to address the situation of nuclear energy, but it must not give any legitimacy to this failed and destructive technology.

The focus of the treaty instead should be on the prohibition of nuclear weapons. Interestingly, the general obligations have not been amended at all, despite a number of calls for prohibitions on planning and preparations, transit, financing, and threat of use. The prohibition on use may be sufficient to cover threat of use, though an explicit reference would be welcome for clarity. The other three should be explicitly prohibited. While some states have argued that assistance would cover activities related to these terms, having explicit prohibitions on them would provide guidance and clarity to the changes in policies and practices that will be required for some states parties.

Articles 2–5 of the treaty may need the most work. Several delegations argued that the declarations in article 2 should reflect the obligations in article 1. This treaty is not just about nuclear-armed states—it’s also about those that are currently involved in planning and preparations to use nuclear weapons, in hosting or stationing nuclear weapons, etc.

In addition, it’s important for article 2, and the rest of this section, to address facilities and not just activities. This is particularly important for questions of irreversibility when it comes to the destruction of nuclear weapon programmes as required by article 4. The declarations should thus include all facilities used to develop, produce, manufacture, test, store, install, or deploy nuclear weapons and related activities.

New Zealand raised concern that the text requires the same declarations from states currently possessing nuclear weapons as it does from the few others that have no safeguards at all; and that declarations are only required on prior destruction and general safeguards obligations but not on current possession or stationing of nuclear weapons. Furthermore, none of the core requirements of safeguards contained in the annex of the first draft text have been retained. Ireland, Switzerland, and others also expressed concern about the state of the safeguards provision in this draft.

Article 4 has problems. As New Zealand noted, the language in this section allowing nuclear-armed states to join the treaty would seem to contradict the prohibition against possession of nuclear weapons. Such concerns must be resolved. States need to decide about the value of postponing provisions to eliminate nuclear weapon programmes into the future or setting the stage for that now.

Article 4(1)–(4)’s “join and destroy” approach is much more stringent than Article 4(5), which reflects a “destroy and join” option. While states joining the treaty and then submitting a plan for elimination are required to do so in a time-bound, verifiable, and irreversible manner, those joining the treaty after destroying their nuclear weapons only have to cooperate with the IAEA on verifying the correctness and completeness of their inventory of nuclear material. This must be expanded to include verification of the comprehensive elimination of concerned state’s nuclear weapon programme.

The positive obligations on victim assistance and environmental remediation also need work. The victim assistance provision still says that only “states in a position to do so” shall provide assistance, despite a large number of states calling for this caveat to be removed. On Tuesday, the Caribbean Community (CARICOM) reiterated that call. Human rights law requires all states to provide assistance to victims in areas under their jurisdiction or control, and this must be reflected in the treaty. In addition, while the victim assistance provision usefully delineates types of assistance to be provided, this type of detail is still missing from the provisions on environmental remediation. As Costa Rica said, we should be more ambitious about these obligations.

A few states reiterated their call for responsibility for assistance and remediation to be placed with those states that have tested or used nuclear weapons, rather than the affected state. However, as other states and civil society organisations have pointed out, the primary responsibility for ensuring that victims’ rights are respected and needs are met lies with the state in whose jurisdiction or control they live or work. This is consistent with states’ sovereignty, general human rights obligations, and responsibilities towards any of their citizens.

Establishing strong international cooperation and assistance provisions is crucial to helping affected states meet their obligations to victims, and in order to establish responsibility for these matters amongst all states party to the treaty. The treaty should also strongly encourage the states that have caused this humanitarian and environmental devastation to help affected states meet their victim assistance obligations. This would not prevent affected states from pursuing redress for such harms through other peaceful means.

In regards to institutional arrangements and final provisions, small changes should be made to various sections. For example, article 9’s list of items for consideration of meetings of states parties is unnecessary and potentially limits the flexibility to discuss matters that aren’t explicitly mentioned here. In article 11, it would be best to have annual meetings, to which civil society is invited to participate. As several delegations noted on Tuesday, the number of ratifications for entry into force of the treaty should remain at 40 as it was in the original draft. The change to article 19’s description of the relationship of the ban to other instruments is very welcome and must remain.

The withdrawal provision of the treaty needs serious work. Put simply, there is no justification for withdrawal from this treaty. If it is, the mechanism for doing so much be extremely robust. As Mexico warned, the proposed threshold for withdrawal is extremely low. At a minimum, it should require 24 months notice to withdraw. The obligation for a state to give a statement about the “extraordinary events it regards as having jeopardized its supreme interests” must be deleted, as this suggests that the development and use of nuclear weapons (the only reason to withdraw from this treaty) is somehow justified in some circumstances.

These are not comprehensive remarks or perspectives from states or from WILPF on the treaty text. More discussion is reflected in the “News in brief” article of this edition of the Nuclear Ban Daily, and more discussion is yet to come.

Thanks to Zia Mian and Kathleen Sullivan for their contributions to this article.

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