Section 5 Questions

Non-Proliferation Treaty (NPT)

Conference on Disarmament

General Assembly First Committee

UN Disarmament Commission

Special Session on Disarmament

5. Legal and Structural Aspects of Nuclear
Disarmament: Compliance, Implementation, and Societal Verification

Questions

What are the essential elements of a legal regime to enforce state compliance with an obligation of non-possession of nuclear weapons?
What types of peaceful collective measures would be effective for this purpose?
What are the essential elements of national implementation?
How do these correspond to a legal regime that provides for effective and fair criminal prosecution of individual violators of basic norms of non-possession of nuclear weapons?
What will be the role of societal verification?
Should individuals be required to report violations of the disarmament regime?
What are the essential elements of a legal regime that protects individual whistleblowers at both the national and international levels?
What protections could a state offer citizens reporting on suspected violations by employers?
Should there be transnational protection arrangements for individuals who report violations by states?
What expertise and skills base must be developed to enable the implementation of a universal disarmament regime?
What existing or new areas of research must be developed or expanded?

Comments

The model NWC envisions a security regime based on incentives for compliance, good faith, and institutionalizing the norm of non-possession of nuclear weapons. It suggests assistance to those states that want to move away from the use of nuclear energy, sanctions for non-compliance, and measures to seek clarification and settle disputes.
It has been suggested elsewhere that the Security Council could agree not to use the veto with respect to weapons of mass destruction. Some argue this would require Security Council reform, including wider representation and no veto.
Universal jurisdiction for individual violations of NWC and "prosecute or extradite" provisions should also be considered.
In the negotiations for the International Criminal Court proposals to prohibit the use of WMD explicitly and classify their use as a war crime were rejected. Nuclear weapons could still be considered prohibited under general prohibitions even though there is no express prohibition. If the NWC were to prohibit the development of and possession of nuclear weapons — possessors could be prosecuted nationally even if only users could be prosecuted under the ICC treaty.
The compliance process is a graduated process with an international verification system to engage states in implementation. In the CWC there are mechanisms for the evaluation of compliance but under the model NWC it is not clear whether states or the executive council carry primary responsibility for ongoing evaluation efforts.
Sanctions are a key method for enforcement. To induce compliance, nationals of a delinquent state party could be expelled from the secretariat, and the right to call for a challenge inspection or to vote could be withdrawn, for example. Sanctions should target the individual members of the ruling elite rather than the whole state.
Societal verification and civil monitoring are very important to enhance trust. There are civilian monitoring and verification aspects to the CTBT.
The model NWC suggests protecting whistleblowers. In the US protections have been moderately effective — returning whistleblowers to the job and awarding them damages. It is feasible to make this protection under the NWC part of national law.
With respect to societal verification, a main concern is confidentiality or protection of persons working in the nuclear weapons complex, if they are required to report violations. One way around this is to have a box in which all employees could leave pertinent information without disclosing their identity.
Nuclear weapons development is a social process and part of a social system. We need to make nuclear weapons development illegal and societal reporting legal. Today whistleblowers are punished and we can only support them through international protest. Instead it should be a duty of citizens to report violations.
We need to dispel the notion that nuclear weapons are needed to address breakout. Having nuclear weapons in the first place reinforces the idea that they are valuable.
With respect to citizens who might be "disappeared" it would be necessary to pressure states through protests, publicity, and creation of international awareness. The model NWC gives a lot of protection to whistleblowers, but there would be the problem of states with no independent judiciary.
Societal verification could work in totalitarian regimes, but people run higher risks. If you give rights to individuals, you also need to educate the whole society (schools, scientists) regarding arms control, non-proliferation, disarmament, and verification.
A problem with societal verification is that it increases the openness of the nuclear complex. This could contribute to proliferation of information with respect to nuclear weapons if it is not properly protected.
Many of the requirements and conditions of nuclear disarmament can only ultimately be resolved by self-policing and societal verification. Progress on these will give governments the confidence to move towards a nuclear weapon free world.
There is a role for NGOs with technical and other expertise to develop verification criteria and technology which governments would find hard to ignore.
Compliance can be considered along a ladder of graduated measures:

1. International Verification System

2. Circulation of Inspection Reports

3. Process of Clarification

4. Evaluation of Compliance

5. Requests for Rectification

6. Measures to Redress, Including Sanctions

7. Referral to the UN

8. Economic Incentives and Disincentives