U.S. Pressured NATO States to Vote No to the Ban Treaty – Including with Legal Argument

I saw this story originally over at the very useful ICANW website. The story links to a memo sent by the U.S. to NATO states, in which it urges them to vote no on the UNGA First Committee resolution to begin the process of negotiating a nuclear weapons ban treaty.

I found the U.S. memo interesting for lots of reasons, including its review of the provisions that the UNGA’s Open-Ended Working Group (OEWG) has recommended for consideration and possible inclusion in such a ban treaty. The OEWG’s report that is referenced in the U.S. memo can be found here. Skip down to page 19 of the OEWG report to see the list of suggested provisions in Annex II.

It’s probably important to bear in mind that this seems to just be a list of possible provisions to consider when negotiating the structure of the treaty. They aren’t presented in any kind of organized, coherent fashion as they would need to be in a draft treaty text. Some of them seem pretty straightforward. Others, like a provision requiring “national legislation criminalizing support for activities proscribed under the convention,” are very problematic.

I really don’t know how much support each of these suggested provisions has among the states and civil society groups who will be influential in orchestrating proposals for structuring the treaty during the negotiations.

My understanding has been that the plan is to proceed in a two-step treaty making process, as I discussed in this post from earlier this year, reviewing a piece by Tom Sauer. So I was a little surprised to see that the OEWG included among its suggested provisions a section on “phases for elimination,” including “Obligations to eliminate nuclear arsenals within an agreed time frame and in a specific manner . . .”  I thought that the actual elimination of nuclear weapons stockpiles – through agreed schedules, methods, and verification mechanisms – was a subject that was going to be saved for the second step of treaty making, i.e. an actual nuclear weapons convention. And that the initial nuclear ban treaty that will be the subject of the negotiations beginning in March 2017, would really only include fairly general normative provisions prohibiting possession, proliferation and use.

I’m sure there are differences in thinking on these issues of structure and sequencing even among the core nuclear weapons ban movement members. But I hope they are thinking this all through with the help of legal advice.  March is just around the corner, and the U.S. memo to NATO states gives just a taste of the kinds of legal arguments that nuclear weapons states will make in an effort to undermine the effectiveness of a new nuclear ban treaty if it isn’t structured in the right way.

I’m certainly available to advise on these issues is anyone is interested.

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13 Comments on “U.S. Pressured NATO States to Vote No to the Ban Treaty – Including with Legal Argument”

  1. El roam says:

    Thanks for the post Dan . I couldn’t find in that memo , substantial legal arguments . Most of it, contains a warning concerning military or strategic impacts on deterrence and security of Nato members and others.

    However , the only apparent legal argument , reads so ( without specifying the legal source ) :

    ” It should be emphasized that a treaty containing such elements could impact non – parties as well as parties , and could even have an impact prior to its entry into force as signatories take steps to implement their obligation not to defeat its object and purpose…. ”

    End of quotation :

    One can presume , that they refer to Article 18 to the Vienna convention ( on treaties ) . Yet :

    Even if you would interpret the wording : Not to defeat , so broadly , yet :

    How can it overcome other international current or existing obligations ? I can only guess, that military cooperation with NATO and the US and others (while nuclear activity is involved) is embodied within treaties. So , if one presume that such states would only sign that treaty prohibiting nuclear weapons development , then : ratification is yet needed , so , they are not yet parties even to the new treaty . So , one must presume , that not to defeat it , can’t take over other current international obligations and treaties ( With the US or whatever ) .

    One example could be brought from the Rome statute , here I quote Article 97 :

    ” Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia:

    (c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.”

    End of quotation :

    So , if valid for a state party , how not valid for a state not party yet , but only signatory ?

    Thanks

  2. John says:

    The U.S. Memo is a clear proof that the ban treaty is going to have a major impact on those states that possess nuclear weapons and their dependent states. In addition, it is also another evidence that US is violating Article 6 of NPT, which requires nuclear disarmament.

    As for the elements of a ban treaty, it is true that there are different views, even among NGO groups, on what should be included in the new treaty. I agree that it should be focused on prohibition of NW, in the nature of 1925 Geneva Protocol, rather than a comprehensive NW treaty, which will be needed to deal with elimination of NWs at a later stage.

    A successful negotiation of a new ban treaty in 2017 will be a giant step toward nuclear disarmament!

  3. JP Zanders says:

    Dan,

    I am a bit surprised by your comment at the end of the 3rd paragraph: ‘Others, like a provision requiring “national legislation criminalizing support for activities proscribed under the convention,” are very problematic.

    You do not elaborate.

    The two disarmament treaties presently in force have such provisions at the core of the regulatory regime:

    The Biological and Toxin Weapons Convention, Article IV
    The Chemical Weapons Convention, Article VII

    In both cases they require a state party to transpose the treaty prohibitions into domestic legislation so that no natural or legal person can undertake any activities in violation of the convention on the territory of the state party or (for a national of that state party) elsewhere. It also requires a state party to adopt an appropriate criminal and penal legal framework.

    Such domestic law may not be the easiest implementation requirement, but in both the BTWC and the CWC it has become one are of intense collaboration among states parties.

    • Dan Joyner says:

      Hi Jean Pascal,
      I think this is a great point to discuss further, and I’m certainly open to thinking it through.

      I think what made me make that statement regarding the proposal that I saw in the OEWG report, was the use of the phrase “support for” in their formulation of a possible provision in the treaty. So again the proposal is for states to adopt “national legislation criminalizing support for activities proscribed under the convention.” I think it would all come down to how precisely such a provision would be written. What kind of support would be criminalized?

      As you point out, both the BWC and the CWC have national legislation obligations. In the BWC this is phrased as the obligation to:

      “take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.”

      And in the CWC the obligation is to:

      “Prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity;”

      Between these, as you would expect, the CWC provision (and there’s more of it in Article VII) is clearer and more developed. And what it does is simply obligate states to prohibit natural persons from doing anything that is specified in the treaty as prohibited for states to do.

      This is pretty clear and straightforward, and I can see a provision worded like that as being fine for inclusion in a nuclear ban treaty. I would not want to see some attempt made to define “support” in some broader sense than actual engagement in the activities explicitly prohibited in the convention.

      I think in the nuclear weapons area, there’s likely to be less application or relevance of a term like this, focusing on non-state actors, than in the chem/bio area, just because of the materials/technologies involved. But if the provision is tailored narrowly and clearly, analogous to the provision in the CWC, it should be relatively harmless and unobjectionable. I’m not sure if it will be very useful, as it’s largely redundant of what’s already in UNSCR 1540 operative paragraph 2. But as you note it could be useful as a point of coordination for states.

    • Dan Joyner says:

      Yes, here’s another story about it from Avner Cohen:

      http://www.politico.com/magazine/story/2016/12/1979-vela-incident-nuclear-test-israel-south-africa-214507

      This is an important quote:

      “In Washington, the existence of Israel’s nuclear program has always been a national security taboo, never mentioned so as not to avoid upsetting other Middle East nations as well as the nonproliferation regime. Admitting Israel had been behind the Vela incident would have forced Carter to recognize its nuclear program, and also to levy sanctions against the country for violating U.S. nonproliferation legislation and the Limited Test Ban Treaty—another political nightmare. Not to mention that any such admission could unravel Carter’s most important international legacy—the peace treaty he just had negotiated between Egypt and Israel, signed only six months earlier at the White House. Egypt and the rest of the Middle East would have been in an uproar.”

      • El roam says:

        Dan , one should just not forget :

        Even if A US administration , would have confirmed the nuclear capabilities of the Israeli state , It wouldn’t be that much effective . Why ??

        Because , it is very hard , almost impossible to prove it conclusively . Even it that event , of alleged experiment in south Africa , if you have read carefully your link , you could realize , that they weren’t so sure and determined , about the origin of those findings ( satellite flashes ) . So , it could take time , during which , thinks would fade out , and noisy headlines would calm . And what to do , if the Israeli state , despite that , as usual , would have denied over and over , any nuclear capacity ( military one of course ) . You need to come with conclusive proves , and how to do it ?? and in fact :

        If you do recall the Vaanono Affaire ( the Israeli traitor , technician in Dimona , if you don’t , just tell me , I shall leave you a link ) well , He has caused , much more damage than anyone or something else , reporting from the inside , directly , about the nuclear facility , and the military nuclear capabilities of Israel , and yet :

        Secrecy and ambiguity , is kept up to that day ….

        Thanks

      • El roam says:

        Dan , here a link if you don’t recall , or other readers would like to explore that case of Vanunu , the traitor mentioned above :

        https://en.wikipedia.org/wiki/Mordechai_Vanunu

        Thanks

      • El roam says:

        Just fixing an error in my comment above :

        Should be : ” You need to come with conclusive proofs ……and not proves of course . Thanks

  4. El roam says:

    Dan, if you have heard recently , of the plans of the Iranians to react or respond for any breach of the nuclear agreement and extension or re – implementation of sanctions, then , maybe this is the shot (or one of them, or only threats). At the time , appeared also in the same form ( generally speaking ).Here today :

    https://www.tasnimnews.com/en/news/2016/12/14/1267437/iranian-president-s-order-on-n-propulsion-devices-no-breach-of-jcpoa-us

    due to technical problems , next link in the next comment …..


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