Amicus Memorandum to the Chair of the NW Ban Treaty Negotiating Conference
Posted: June 12, 2017 Filed under: Nuclear 2 CommentsReaders 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.
Arms Control Law 
Hi Dan,
Thanks for your comments and recommendations contained in your Memo!
They seem to be very helpful inputs in making the Draft Convention more coherent.
In particular, I agree fully with your recommendation to delete Article 3, Article 19 and the Annex.
First of all, most States Parties that will join the Ban Treaty already have safeguards agreement with IAEA. Secondly, proposed Article 1 (f) prohibits States Parties any assistance to “anyone to engage in any activity prohibited to a State Party.” They are redundant and unnecessary.
As for your second recommendation, a declaratory statement would be useful to include in Article 1, but it would be too much to declare that the possession of nuclear weapon itself is illegal under international law at this time. As you know, NPT is silent on the illegality of possession of nuclear weapons by P-5. Thus, it will be better to state that any threat or use of nuclear weapons as illegal under international law, and that such use would constitute a war crime or crimes against humanity, among other crimes.
As for your recommendation for the Amendment, can you clarify whether you are suggesting that the amendment shall become effective when it is adopted by States Parties at their regular meeting? If no ratification process is necessary, then don’t you think there should be a sentence requiring the circulation of a written amendment among States Parties at least 90 days prior to the Meeting?
In addition, there are other Articles that appear to be problematic. Below are some examples.
1) the draft Convention is silent on the threat to use nuclear weapons.
2) There is no separate Article on definitions. For instance, how do you define “other nuclear explosive devices” or “any other nuclear explosion”? Do any of these terms apply to any peaceful use of nuclear reaction (e.g. production of nuclear energy)?
3) Article 2 Declaration seems very arbitrary and discriminating since this requirement, among others, applies only to any manufacture of nuclear weapons “after 5 December 2001.” Under this Article, P-5 countries may not have to list any nuclear weapons manufactured prior to that date, while N. Korea will be required to list all its weapons manufactured from 2001.
4) Lack of a Secretariat for the Convention.
Do you have any comments on these?
[…] and discuss with colleagues in New York. It is available on his website, Arms Control Law: https://armscontrollaw.com/ 2017/06/12/amicus-memorandum- to-the-chair-of-the-nw-ban- treaty-negotia… 2. A new update to SGR’s beginner’s guide to nuclear threats is now […]