My Impressions on the Second Draft of the NW Ban Treaty

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.

Amicus Memorandum to the Chair of the NW Ban Treaty Negotiating Conference

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.

Amicus Memorandum