(Cross posted from EJIL:Talk!)
On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50th ratification.
The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance.
The essential obligations of the TPNW for any state that becomes a party thereto, are listed in Article 1, which provides as follows:
Each State Party undertakes never under any circumstances to:
(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;
(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;
(c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;
(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;
(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;
(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;
(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.
The TPNW is the ultimate product of two main trends in international relations that, to the surprise of many observers, came together successfully within just the past few years. The first trend is the longstanding frustration of most of the states parties to the NPT with the noncompliance of nuclear-weapon-possessing states with the NPT’s disarmament provisions, located in Article VI.
The second, and more recent trend, is what has been dubbed the humanitarian initiative; an effort that took shape in 2012, and that brought together more than 150 states and myriad civil society groups to focus on the unacceptable harm to human life, health, and environment that would be caused by any use of nuclear weapons.
These two trends coalesced in August, 2016 at a special United Nations working group on nuclear disarmament, held in Geneva. This working group recommended the negotiation of a treaty comprehensively banning nuclear weapons. That Autumn, the First Committee of the General Assembly adopted a resolution approving the mandate for such a conference, leading to the December 16, 2016 General Assembly resolution.
Noticeably absent throughout the negotiations on the TPNW – including in General Assembly debates, the formal treaty negotiation sessions, and the voting on the final treaty text – have been all nine states known to possess nuclear weapons (the United States, the United Kingdom, France, China, Russia, Israel, India, Pakistan, and North Korea). These states, and a number of others, boycotted the negotiating process entirely. As Niki Haley, the U.S. Ambassador to the United Nations, explained: “In this day and time we can’t honestly say that we can protect our people by allowing the bad actors to have [nuclear weapons] and those of us that are good, trying to keep peace and safety, not to have them.” Similarly, the British Ambassador to the United Nations, Matthew Rycroft has stated: “The UK is not attending the negotiations on a treaty to prohibit nuclear weapons because we do not believe that those negotiations will lead to effective progress on global nuclear disarmament.”
Notwithstanding the non-participation of the nuclear-weapons-possessing states, the states negotiating the TPNW have expressed the view that the possession and potential use of nuclear weapons is an existential threat to humanity, and one that cannot be ignored simply because the few states that possess nuclear weapons are not yet ready to take meaningful steps to disarm themselves. They also see the TPNW as an important normative statement, by a supermajority of the states in the world, that the development, possession and use of nuclear weapons is immoral and must be prohibited, just as other weapons of mass destruction including chemical and biological weapons have been the subject of comprehensive prohibition treaties. And some states have expressed hope that this normative statement might contribute to the development of parallel customary international law.
Critics of the treaty, however, contend that without the participation and buy-in of the nuclear weapons states, the TPNW is little more than an idealistic statement of disapproval by states that do not themselves possess nuclear weapons. They argue that the TPNW will not be effective in convincing states that possess nuclear weapons to disarm, and that it may in fact do harm to the existing legal framework governing nuclear weapons proliferation, by undermining the centrality of the NPT as the nearly-universally-subscribed-to cornerstone of the regime.
The hope of states supporting the TPNW is that the treaty will constitute a normative nucleus around which efforts may be made by both states parties and international civil society to persuade nuclear-weapons-possessing states to join the treaty. The issue of verification of a former nuclear armed state’s implementation of the treaty’s disarmament provisions, once it becomes a party to the treaty, was one of the issues subject to heavy negotiation. The resulting provisions of Article 4 of the TPNW allow for former nuclear-weapons-possessing states to join the treaty as parties either after they have fully disarmed, or while still in possession of nuclear weapons, subject to a “legally binding, time-bound” plan for their destruction by a deadline to be determined by a meeting of the states parties.
From a legal perspective, there are many issues of analysis and interpretation that will keep scholars – well, me anyway – busy writing about the TPNW for years to come. These include the tension that will exist between the obligations of the TPNW, and the nuclear weapons commitments of NATO members. This, by the way, explains the Netherlands’ rather uncharacteristic vote against a nuclear disarmament treaty. NATO defense policy includes a longstanding commitment to nuclear weapons sharing agreements. At present, five NATO countries have such agreements with the United States, pursuant to which U.S. nuclear weapons are stationed on the territory of the host state, and are to be used by the host state’s military in the event of an armed conflict. The Netherlands is one of those states, along with Belgium, Germany, Italy, and Turkey. It is estimated that a total of 180 U.S. B-61 thermonuclear weapons are currently stationed on the territory of these five NATO host countries, the largest number of which are stationed at Aviano air base in Italy, and Incirlik air base in Turkey
But recall that Article 1(g) of the TPNW provides that no state party shall “Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.” This paragraph was very intentionally added to the TPNW in order to close a controversial loophole in Article II of the NPT, that NATO has long argued allows for such nuclear sharing agreements. So what happens if any member of NATO joins the TPNW? Can this provision of the TPNW be reconciled with the nuclear weapons sharing commitments of NATO members? Most NATO countries, clearly including the Netherlands, appear to think that it cannot be.
Other issues that require careful interpretation and analysis include the relationship between the TPNW and the NPT on matters such as safeguards of nuclear materials and facilities, and the role of the International Atomic Energy Agency. This is a subject that was contentious during the drafting of the treaty, and one on which I have already provided some preliminary commentary over at my blog.
From a political perspective, even without the buy-in of the nuclear armed states – and indeed precisely because of it – the TPNW will undoubtedly have an impact on nuclear weapons diplomacy going forward, particularly in the context of diplomacy surrounding the NPT. The next NPT Review Conference is scheduled for 2020, and the Preparatory Committee meetings for that conference have already begun. It will be important to see how the states parties to the TPNW seek to bring the treaty’s existence and implications into those already highly fraught negotiations about the health and relevance of the NPT. Many states parties to the TPNW see the new treaty as an implementation of Article VI of the NPT on nuclear disarmament, and will seek to have it acknowledged as such in the Review Conference’s final document. This will be heavily opposed by the nuclear armed states and those under their “umbrella” of nuclear protection. But negotiations on a consensus Review Conference final document are always unpredictable, and if some acknowledgment of the TPNW can be worked into it, that will represent a major political and potentially legal coup for the TPNW parties.
While much remains to be addressed both legally and politically concerning the TPNW, my own view is that the adoption of the TPNW is an event to be welcomed. It is a very useful legal supplement to the increasingly marginalized NPT, and represents a welcome shakeup of stagnant NPT politics. It very forcefully puts the issue of disarmament front and center in international nuclear weapons diplomacy. The nuclear-weapons-possessing-states can of course avoid signing the treaty. But it is now much more difficult for them to avoid seriously addressing the expressed will of the international community that nuclear weapons should be understood to be just as immoral as any other banned weaponry, and that as such their development, possession, and use should be prohibited in international law.
See the article here. I’m included in the video accompanying the article. I do think this is a straightforward case of noncompliance by the U.S. with the JCPOA.
It appears, though, that all signs point to this being the last 90 days of the U.S. participation in the JCPOA. See this analysis here.
I think this FP piece explains well how this would be the worst possible outcome for the U.S. If Trump does withdraw from the deal, the U.S. will be a complete outlier and will be seen as having acted in bad faith.
Of course, we already look ridiculous to the rest of the world due to Trump’s other domestic and foreign policy blunders.
More complex than imagined
Last November, during the 8th Review Conference of the Biological and Toxin Weapons Convention (BTWC), the Fondation pour la Recherche Stratégique (FRS) in cooperation with the United Nations Institute for Disarmament Research (UNIDIR) organised a tabletop exercise on the implementation of the BTWC’s Article VII, which provides for emergency assistance in case a State Party Party has been exposed to danger as a result of a treaty violation.
The Trench has already provided an account of the two-day workshop.
Today, the FRS has published the final report, edited by Jean Pascal Zanders, Elisande Nexon and Ralf Trapp, with recommendations for consideration by the States Parties.
The tabletop exercise aimed to understand better the elements that would have to be in place to trigger Article VII and the consequences such action may have on the organisation of international assistance. Moreover, the tabletop exercise also aimed to achieve a deeper appreciation of the unique contribution of the BTWC in addition to the expected assistance efforts by international organisations, relief associations and individual countries. It put into sharper relief certain questions BTWC States Parties will have to address even before the first item of assistance is shipped to the disaster area. Failing to do so, the tabletop exercise suggested that States, depending on their individual assessment of the risks following the outbreak and the cause of the epidemic, may decide on totally different courses of action, an outcome that might severely hamper the international coordination of efforts to stem the outbreak and assist victims.
The report offers 12 conclusions and recommendations for future consideration.
The Ministry for Europe and Foreign Affairs of France and the Foreign and Commonwealth Office of the United Kingdom financially supported the project.
[Cross-posted from The Trench]
A second draft text of the nuclear weapons ban treaty, currently in the final stages of negotiation at UN headquarters, was released last night. Find it here. As a quick side note, the name of the treaty seems to have changed since the first draft, from a “convention” to a “treaty.” Of course that has no legal significance, I just found it interesting.
I provided commentary on the first draft of the treaty text, released on May 22, in a previous post, in the form of a formal legal memorandum to the chair of the conference.
I’ve now read over the second draft, and I have to say that I’m overall quite pleased with it. The chair and the negotiators appear to have addressed a lot of the concerns I had with the first draft text, in particular concerning the relationship of the treaty with the NPT, as well as how the treaty addresses safeguards and the role of the IAEA. I find the operative provisions of the second draft of the text to be much better on these points.
Specifically, I’m much happier with the revised text of Article 19, which now doesn’t mention the NPT or the “rights and obligations” therein. That’s a big improvement. Although the text that remains in the second draft doesn’t really seem to serve any purpose that isn’t already served by general principles of treaty law, and there is some potential for it to cause mischief, so I would still on balance prefer to see the whole article removed.
I’m also much happier with the revised text of Article 3 on safeguards, especially alongside the removal of the Annex, which I recommended. I’m also happier with the roles assigned to the IAEA in Article 4, as the administrator of safeguards agreements and not as the presumptive verifier of nuclear weapons disarmament. Those are two very different things. The IAEA has been involved in the latter activity on a few occasions (e.g. South Africa, Iraq), but these have in each case been sui generis and not undertaken solely on the basis of the IAEA’s regular authority pursuant to its statue and safeguards agreements.
I know there’s been some concern expressed over the change in the text of Article 4 to allow a state possessing nuclear weapons to ratify the treaty and then subsequently disarm itself. I’ve heard this concept referred to as the “on ramp” option for treaty membership of nuclear weapon states. I actually don’t have a problem with the way the second draft treats the various possibilities for nuclear weapon possessing states to join the treaty, i.e. whether by elimination prior to joining, or by elimination after joining pursuant to a “time-bound” plan. Verification of disarmament will be difficult under any circumstance – as is verification of nonproliferation now. But the basic idea of a state joining the NW ban treaty as an intermediate step along the process of its actual physical disarmament, perhaps as one of the important diplomatic steps manifesting and concretizing its intent to do so, makes sense to me.
Of course, not all of my concerns have been addressed in the new draft text. For example, the text on victim assistance in Article 7 of the second draft is essentially unchanged from its form in Article 6 of the first draft. I think this is still problematic for the reasons I explained in my memorandum. Ditto for the language on international cooperation in Article 8 of the second draft, essentially unchanged from Article 8 of the first draft. And I still do not understand why the process outlined in Article 11(5) of the second draft (which contains the text that appeared in Article 11(2) of the first draft) has been employed for amendments. It’s a real mystery to me and potentially problematic, for the reasons I explained in my memorandum. But frankly these are all subsidiary concerns that I can live with.
The preamble to the second draft has also gotten pretty ridiculously long and involved. I agree with those who have noted that this seems to be where the chair has put things that states or NGOs passionately wanted somewhere in the treaty, but that were not seen as important enough, or as commanding of sufficient support, for inclusion in the operative paragraphs. In general it doesn’t matter too much what is in the preamble, so I won’t lose any sleep over that.
Looking at the treaty from a macro perspective, I’m on record as having said that my preference would have been for the new NW ban treaty to be a full replacement for the NPT, accompanied by collective withdrawal of its states parties from the NPT. That still would be my preference. But this is clearly not the decision that the states negotiating the NW ban treaty have taken. They have instead decided to adopt the NW ban treaty as a supplement to the NPT and an implementation of it.
That decision having been taken, I have been keen to push for the new treaty to be structured as an independent, stand-alone treaty which is understood to exist in harmony with the NPT, but which is not explicitly textually linked to the NPT regime, and that includes as little substantive overlap with the NPT as possible in order to avoid legal complications. In my memorandum a couple of weeks ago, I used the CTBT as an analogical example of this approach. This second draft of the NW ban treaty does indeed seem to be heading more in this direction, and I’m quite pleased to see that. I think it will simplify interpretation and implementation of the new treaty, and place it in a more reasonable systemic relationship with existing treaties including the NPT.
Which is good, because I’ll probably be writing about this damn thing for the next 25 years.
Readers will know that a U.N. conference has been engaged in negotiating the text of a treaty which will establish a prohibition on the possession and use of nuclear weapons among its parties. On May 22, 2017 the chair of that conference, Ambassador Elayne Whyte Gomez of Costa Rica, circulated a first draft of the treaty text. You can find that text here. The draft was the product of negotiations at the first session of the conference in New York from March 27-March 31, 2017. The second session of the negotiating conference will convene on June 15, 2017 and continue until July 7, 2017, with this draft serving as the basis for further negotiations.
Instead of writing a blog post about the negotiating conference, I decided that I would draft a legal memorandum, addressed to the chair of the conference, in which I provide analysis and recommendations for revision of the draft treaty text.
I have already sent the document to the chair directly. But I thought I would also post the memorandum openly here, in the hope that it might be circulated to diplomats and NGOs who will be returning soon for the second session of the negotiations. I’ll insert a link to the memorandum below, and would really appreciate it if readers in a position to do so would facilitate that circulation.
This is an important moment in the history of international nuclear nonproliferation law and I would like to be as useful as I can be in helping to shape the final form of the treaty, which I’m confident the conference will successfully adopt.
In sum, I think the draft is good – a good basis to start from. But I also think that there are elements of the draft that need to be revised in order for the treaty to be maximally effective in achieving its purpose, while avoiding the unnecessary creation of legal confusion that could compromise the existing nuclear nonproliferation legal framework.
I really hope that this memorandum will be useful in clearly explaining the reasons for these needed revisions, and that the conference will be persuaded to make them.
Building A WMD-Free Zone on Existing Treaties and Conventions Syrian CWC-Adherence and Reactions, Especially in IsraelPosted: May 8, 2017
[Cross-posted from The Trench.]
Speaking notes for the side event to the 2017 Preparatory Committee of the Nuclear Non-Proliferation Treaty (NPT), organised by the Geneva Centre for Security Policy (GCSP) and Academic Peace Orchestra Middle East (APOME), Vienna, 8 May 2017.
It builds on and updates an earlier posting of 13 March 2015.
Operation of the CWC in the Middle East
- As of 1 May 2017, the Chemical Weapons Convention (CWC) comprises 192 states parties. The CWC entered into force 20 years ago, on 29 April 1997. It has the largest number of parties of any weapon control treaty.
- Four states, including two from the Middle East, are still outside the convention: Egypt, Israel, North Korea and South Sudan. (Israel did sign but not ratify the convention.)
- Given the armed conflicts in different parts of the Middle East, the Organisation for the Prohibition of Chemical Weapons (OPCW) has intervened in Syria and Libya to secure declared chemical weapons (CW) and have them destroyed in other parties to the CWC so as to prevent their use by any one of the belligerents in either country. The Libyan operation took place in August 2016. It drew on the precedent set by and experience gained from the evacuation of chemicals from Syria.
Situation in Syria
- Syria acceded to the CWC on 14 September 2013 and formally became a state party on 14 October. This was the outcome of a framework agreement on the elimination of Syria’s chemical warfare capacities between Russia and the United States reached in Geneva on 14 September.
- Since Syria’s accession to the CWC the OPCW has:
- verified the destruction of 24 of the 27 CW production and storage facilities. Lack of safe access has prevented inspectors from destroying one final aircraft hangar and confirming the condition of two stationary above-ground facilities.
- overseen the evacuation and complete destruction of all declared chemical chemicals (precursors to nerve agents and mustard agent) for a total of about 1,300 metric tonnes. It also verified the destruction of declared delivery systems.
- However, there remain several outstanding issues, including the OPCW’s inability to confirm the destruction of 200 metric tonnes of mustard agent in March 2013 (i.e. about 6 months before Syria’s accession to the CWC), the discovery of nerve agent traces in locations not declared by the Syrian government, and the later discovery of an undeclared ricin production facility.
- Furthermore, since Syria’s accession there have been multiple incidents involving the use of toxic chemicals as weapons, mostly chlorine. On 4 April an attack with the nerve agent sarin took place against the city of Khan Sheikhoun, the first such use since the sarin strike against Ghouta in August 2013. At the time of writing it is unclear whether the sarin was prepared from undeclared volumes of precursor chemicals or whether Syrian scientists and engineers produced a batch from scratch.
- The Islamic State in Iraq and the Levant (ISIL) has been responsible for some isolated attacks with chlorine and mustard agent in Syria and Iraq. This has created new challenges for the OPCW in terms of investigating and responding to the alleged events. Indeed, these incidents mostly involved the use by a non-state actor against another non-state actor on the territory of a state party to the CWC that is not under the control of that state party.
- The Fact-Finding Mission (FFM) of the OPCW has confirmed repeated CW use in Syria. The UN Security Council established the OPCW-UN Joint Investigative Mission (JIM) to attribute responsibility for the chemical attacks. JIM has thus far held the Syrian government responsible for three attacks and ISIL for one. Its investigation is ongoing.
Responses from within the Middle East
- Iran is a strong backer of the Syrian leader Bashar al-Assad. Having been a victim of chemical warfare during the 1980–88 Iran-Iran war, it strongly condemns chemical warfare. However, it denies the Syrian government’s responsibility for the CW attacks since August 2013 and instead blames insurgent factions. It follows the arguments laid out by Russia (and to a lesser extent by China) and plays an active role in the decision-making processes relating to the technical assessments prepared by the FFM in the Executive Council of the OPCW.
- Some government officials, politicians or commentators both inside and outside the Middle East have made rather wild allegations (without any factual substantiation of these political statements) that other external parties to the civil war supply belligerents with the materials for chemical warfare. Iran has been named as a supplier of the Syrian government; uncontrolled stockpiles in Libya might be transferred to various belligerents in Syria.
- Attribution of responsibility for the CW attacks has been accompanied by claims that neighbouring states are responsible for supplying or facilitating the transfer of chemicals and equipment to belligerent factions they support. Since with the exception of Israel all neighbouring states are parties to the CWC, the claims are tantamount to an accusation against such states of a material breach of the convention.
- The current Israeli government has long maintained that Syria has never given up its entire CW capacity since joining the CWC. The difficulties for the OPCW to close the Syrian disarmament dossier tend to reinforce Israel’s deep-rooted pessimism about the ability of international weapon control treaties to guarantee its national security. Israeli attitudes towards Iran, which include conviction of Tehran’s non-compliance with the CWC, appear to be bolstered by Iran’s on-the-ground military support for Syria and Hezbollah in both Lebanon and Syria and its interventions in the OPCW Executive Council.
- Over the past two decades the CWC has contributed much to the removal of the spectre of chemical warfare, particularly in the Middle East. Addressing specific challenges in Syria and Libya, the states parties to the convention have demonstrated adaptability, flexibility and willingness to support financially or materially the extraordinary disarmament efforts in the field. As a result, the treaty regime has evolved considerably with respect to meeting challenges unforeseen by the CWC negotiators.
- However, the unrelenting use of toxic chemicals as a weapon of warfare in Syria fundamentally challenges the CWC’s most basic premise to never under any circumstance use CW. Furthermore, backing of belligerents by outside parties (all of whom have joined the CWC) is increasingly tending towards a violation of the prohibition to never under any circumstances to induce, in any way, anyone to engage in any prohibited activity (Article I ‘General Obligations’).
- Syria’s inability or unwillingness to resolve all outstanding issues with regard to its CW programmes also challenges the integrity of the CWC and the OPCW’s operational procedures. Factual findings are becoming more and more politicised (often driven by ulterior geopolitical motivations), making consensus-based decision-making increasingly difficult.
- Since the 2nd World War all major occurrences of chemical warfare (with the exception of US use of herbicides and riot control agents in Indochina in the 1960s and early 1970s) have taken and are taking place in the Middle East. All these instances of CW use in the Middle East involved Arab regimes and have targeted fellow Arabs, Muslims or their own population. None were ever launched against Israel.
- Compared with the question of regional nuclear disarmament, which directly involves Israel, Arab countries have despite the history of chemical warfare in the region remained remarkable indifferent to the many uses of chemical weapons. For instance, not a single member of the Arab League contributed financially or materially to the disarmament operations in Syria or Libya.
Commemoration of the 20th Anniversary of the Entry into Force of the Chemical Weapons Convention (The Hague, 26 April 2017)
Collection of speeches
- Welcome address by Ambassador Ahmet Üzümcü, Director-General of the OPCW
- Video message by Mr António Guterres, Secretary-General of the United Nations
- Address by Mr Bert Koenders, Minister of Foreign Affairs, The Netherlands
- Address by Crown Princess Victoria of Sweden
- Address by Mrs Pauline Krikke, Mayor of The Hague
- Address by Ambassador Dr Christoph Israng, Chairperson of the Conference of the States Parties