Friend or Foe: The Treaty on the Prohibition of Nuclear Weapons and the NPT

I’m very pleased to host a guest post by Dr. Stuart Casey-Maslen. Stuart is Research and Policy Coordinator at the International Campaign to Abolish Nuclear Weapons (ICAN) and an Honorary Professor at the University of Pretoria’s Human Rights Centre. He holds a doctorate in international humanitarian law and master’s degrees in international human rights law and forensic ballistics. I’ve known Stuart for quite a while as one of the high quality people writing in the area of arms control law. He co-edited Nuclear Weapons under International Law, published by Cambridge University Press in 2014 (which included a chapter from me), and is the author of a legal commentary on the Treaty on the Prohibition of Nuclear Weapons, to be published by Oxford University Press in January 2019.

Friend or Foe? : The Treaty on the Prohibition of Nuclear Weapons and the NPT

By: Stuart Casey-Maslen, Research and Policy Coordinator, ICAN

Of all the attacks aimed at the TPNW by nuclear-weapon states (as well as some of the more militant umbrella states), one of the most persistent has been that the Treaty undermines the existing non-proliferation and arms control architecture, especially the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT). For instance, on the day the TPNW was adopted by 122 states in New York, France, the United Kingdom, and the United States issued a joint statement in which they argued that the new treaty risked “undermining the existing international security architecture which contributes to the maintenance of international peace and security” and reiterated their “continued commitment” to the NPT and to further promoting “its authority, universality and effectiveness”.

First and foremost, it is important to recall that the TPNW explicitly acknowledges and supports the NPT. A preambular paragraph dedicated to that treaty declares that the NPT is “the cornerstone of the nuclear disarmament and non-proliferation regime” and reaffirms that its “full and effective implementation” has “a vital role to play in promoting international peace and security”. That is an unequivocal endorsement. It also contains treaty language taken almost directly from Article 11 of the NPT; specifically the obligation in Article 1, paragraph 1 (c) never under any circumstances to “Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly”.

For sure, there is no “get-out-of-jail-free” card in the TPNW as is claimed, seemingly for perpetuity, by the P5 “Nuclear Weapons States” named as such under the NPT (Article VI notwithstanding). All nuclear weapons by any state party must be withdrawn from operational status and destroyed. In addition, the assistance provision in the TPNW (Article 1, paragraph 1(e)) prohibits the provision of source or fissionable material to the P5 for the purpose of producing or maintaining nuclear weapons, which is not the case under the NPT. So the TPNW goes beyond the NPT in restricting vertical proliferation as well as horizontal proliferation. That additional layer of protection is a good thing (unless one happens to believe that the more nuclear weapons the P5 possess, the better for humanity; more on that issue below).

But in April 2018, in a written “Outline of Legal Risks for States Contemplating Joining” (the TPNW), officials from the United States doubled down on the rhetoric, claiming that the new Treaty was “a step backwards on nonproliferation verification by ignoring the Additional Protocol” and that it was “inconsistent with the practice under the NPT of achieving progress on disarmament pursuant to negotiated measures containing rigorous verification and reflecting the realities of the international security environment”.

Let’s look at these issues in turn and see if they have merit.

First, is the TPNW a step backwards in verification and does it ignore the Additional Protocol?

The TPNW obligates every state party to either maintain or — if it does not yet have one in place — to negotiate and bring into force with the International Atomic Energy Agency (IAEA) its Comprehensive Safeguards Agreement (INFCIRC/153 (Corrected)). This is at least as strong as, and certainly more specific than, the obligation in Article III of the NPT to accept safeguards on source or special fissionable material “with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices”. Moreover, around a dozen states parties to the NPT do not yet have a Comprehensive Safeguards Agreement in force. Surely, any other international instrument that serves to pressure those states into concluding such an Agreement is a good thing?

It is true that the TPNW does not obligate every state party to negotiate and bring into force the Additional Protocol on safeguards with the IAEA. But nor does the NPT. By the end of 2017, though, an impressive 132 states had an Additional Protocol in force with the IAEA.

For those not familiar with it, the Additional Protocol is a binding agreement with the IAEA granting the Agency additional inspection authority to that provided in the Comprehensive Safeguards Agreement. A principal aim is to enable the IAEA inspectorate to provide assurance about the accuracy and completeness of declared activities and the absence of undeclared activities. Under the Protocol, the IAEA is granted expanded rights of access to both information and sites. Activities carried out during such complementary access can include examination of records, visual observation, environmental sampling, use of radiation detection and measurement devices, and the application of seals and other identifying and tamper-indicating devices.

But the TPNW does go further than the NPT in safeguarding. Any state that owned, possessed or controlled nuclear weapons on 8 July 2017 and subsequently eliminated their programme prior to becoming a party to the TPNW must agree upon safeguards that are “sufficient to provide credible assurance of the non-diversion of declared nuclear material from peaceful nuclear activities and of the absence of undeclared nuclear material or activities in that State Party as a whole” (Article 4, paragraph 1, TPNW). In practice, this means the Additional Protocol, even if the instrument isn’t cited explicitly in the text. In this regard, therefore, the TPNW goes significantly beyond the requirements laid down in the NPT.

Now let’s consider whether the TPNW is inconsistent with the so-called “practice” under the NPT. Massive reductions in their nuclear arsenals have been achieved by Russia and the United States since the apogee in the 1980s. Bold agreements (the INF Treaty, START, and New Start) were concluded bilaterally by successive presidents to reduce their stockpiles and make the world a safer place. In recent years, though, this trend has stalled and “modernisation” has become the new buzz word. More “usable” nuclear weapons are being developed. These new trends are provoking a new nuclear arms race at a time when societies can ill afford it.

So what is actually inconsistent is the practice of the P5 with respect to their legal obligations under the NPT. Article VI is explicit: each state party to the NPT “undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. The International Court of Justice went further in its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, holding unanimously that “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” (Dispositif F, added emphasis)

The United States has expressed support for a nuclear-free world, but has also committed to maintaining an arsenal for deterrence and defence as long as nuclear weapons exist. So where are the negotiations to make these weapons a thing of the past? A new arms race is a clear violation of Article VI. The 122 states that adopted the TPNW were living up to their NPT obligations. The P5 are not.