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.

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Guest Post: A Comparison of Two Geological Disposal Facilities, and the Implications of International Nuclear Law

This past March I taught a week-long course at the University of Manchester, in the UK.  The course was, as far as I know, unique. The title of the course was “International Nuclear Energy Law.”  I designed the course to cover the international legal sources regulating the civilian nuclear energy industry.  So both hard and soft law sources on nuclear safeguards, trade in nuclear technologies, nuclear facility and materials safety and security, nuclear incident liability, nuclear materials transport, radioactive waste disposal and the environment, and international investment law related to nuclear facility new builds. This was definitely a bit of a stretch from my usual short-course subject of nuclear nonproliferation law, but of course there is considerable overlap and I wanted to expand my teaching and research repertoire.  And as it happens, Manchester has both a very strong nuclear engineering school and an excellent law school.  So along with friends on both faculties, we designed this course to be cross listed for both law students and nuclear science students.  The result was just remarkable.  The class of 28 students was comprised about equally of law students and nuclear science (engineering, physics, chemistry, etc.) students. And the discussions that ensued were fascinating, with both groups contributing insights from their disciplines.  I think the group work particularly was enjoyable for the students.  Every day in the afternoon I would give them a case study based on the morning’s lecture, and break them into groups containing both law students and nuclear science students, and have them work together to come up with an answer which they then reported to the full class.  Seeing the discussions that they had among the different disciplines was really exciting.  I’m hoping the course will become a regular, annual event.

So, among the final papers that were submitted by the students in the course, I thought I would post one of the best ones here, so that readers could see the kind of subjects we discussed in the course.  The below is the course paper submitted by Amber Mason, who is a PhD student in her second year at the Materials Science and Engineering Department at the University of Sheffield.  Her research involves investigating potential materials for the purpose of nuclear waste immobilisation, with a particular focus on the plutonium stockpile currently stored at Sellafield, UK.  She wrote the below paper for the course comparing two different examples of geological disposal facilities for radioactive waste, and also considering the requirements of international law for such facilities.  I thought it was a great paper, so wanted to share it (with her permission of course).  Comments welcome.

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Guest Post on the “Conventionalization” of Nuclear Weapons and Implications for International Law

I’m pleased to introduce the below guest post by Olha Bozhenko. She is an LL.M student in International Litigation (Public International Law) at the Institute of International Relations Kyiv National Taras Shevchenko University. She holds a BA (Hons) in International Relations from the same university. She is an Associate at Marchenko Danevych law firm (Ukraine).

I like this piece because I think it address some timely dynamics in nuclear arms control, and then provides an interesting and meaningful discussion of some of the implications of these dynamics for international law.  Comments welcome.

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Is the Conventionalization of Nuclear Weapons Detrimental to the Associated International Legal Regime?

By Olha Bozhenko

 Nuclear weapons enjoy a separate and unique regime under international law. The majority of states struggle to establish a complete prohibition of nuclear weapons, as in the case of other categories of WMD. In fact, in its only authoritative pronouncement on the matter, the ICJ stressed ‘the unique characteristics of nuclear weapons, and in particular their destructive capacity’ (para 36).

Yet in view of some recent developments, to be discussed below, this distinction has been gradually disappearing, with the line between nuclear and conventional weapons becoming blurred. This means that nuclear weapons are not stigmatized as their WMD counterparts, but rather conventionalized.

This piece is an attempt to, first, ascertain the progressing conventionalization among the current trends related to nuclear weapons and, second, delineate its consequences for the international legal regulation of armaments.

Paths of conventionalization

 Nuclear weapons conventionalization has been referred to as ‘nuclear entanglement’, which essentially means the merger of nuclear and conventional weapons. Broadly understood, it manifests itself in the following ways.

 Increased reliance on non-strategic (tactical) nuclear weapons

 As early as in his Dissenting Opinion to the Nuclear Weapons Advisory Opinion, Judge Shahabudeen suggested that assuming tactical nuclear weapons could be no more destructive than conventional weapons, they should not be less lawful than the latter (p. 159). Hence, placing nonstrategic nuclear weapons (NSNW) at the top of ‘conventionalization agenda’ is not a brand-new idea. Besides, it has recently been emphasized in national strategies.

The most striking example is, of course, the US 2018 Nuclear Posture Review (NPR), which radically departs from its predecessor in mandating the development of a range of nonstrategic low-yield nuclear options (p. 52). The Trump Administration considers this departure necessary as a response to Russia’s substantial reliance on and expansion of non-strategic nuclear arsenal, which considerably outstrips that of the US (p. 53). At face value, this means that the two most powerful nuclear-weapon states have embarked upon the rapid expansion of their non-strategic nuclear options.

Such an approach depicting NSNW as quite a usable tool to advance military and non-military goals significantly lowers the threshold for the actual use. Such reliance on a limited nuclear strike can well lead to the full-blown nuclear escalation, which the ICJ considered among the possible consequences of using low yield nuclear weapons (para 94).

Integration of nuclear and conventional planning and operations

 The integration of nuclear and conventional capabilities also contributes to the conventionalization. This is ‘nuclear entanglement’ in the original meaning of the term. The integration includes equipping dual use means of delivery with nuclear and non-nuclear warheads, merging nuclear and conventional support facilities, as well as integrating planning and training for both nuclear and non-nuclear forces. China and Russia are said to pursue this strategy whether deliberately or as a matter of historical legacy. Furthermore, the US’ NPR specifically mandates ensuring ‘the ability to integrate nuclear and non-nuclear military planning and operations’ (p. 21) to ‘deter limited nuclear escalation and nonnuclear strategic attacks’ (p. 58).

These developments are frowned upon for a number of reasons. They tend to erode the line between nuclear and conventional forces in the most palpable manner. They also increase the risk of adversary’s misinterpretation of the nature of an attack, which can simultaneously target ‘entangled’ capabilities.

Expanding range of scenarios for the use of nuclear weapons

 Much has been said on the expanded range of scenarios where the US contemplates first use of nuclear weapons, also in response to non-nuclear threats (2018 NPR, p. 21). Although the US strategy is most widely discussed owing to its considerable departure from the previous pattern, other nuclear-weapon states either preserve deliberate ambiguity with regard to the possible use of nuclear weapons (e.g. the UK and France) or explicitly declare their readiness to balance an adversary’s conventional superiority with a nuclear strike (e.g. Russia and Pakistan).

Expanding the role of nuclear weapons beyond deterring nuclear threats alludes to an increased rationality and military utility of a nuclear strike. This further undermines the arguments that there exists opinio juris prohibiting recourse to nuclear weapons, except for the purposes of deterrence (para 65). In view of such developments it is understandable why the ICJ refused to acknowledge that the non-recourse to nuclear weapons since 1945 had been due to such opinio juris rather than the absence of military necessity (para 67).

Nuclear saber rattling

 Finally, never before has it been so common for political leaders to boast of their states’ nuclear capacities. One may recall Vladimir Putin’s threats to deploy nuclear weapons in the course of Crimea crisis and against Baltic states, or his most recent brandishing cutting-edge nuclear technology with animated nukes striking Florida in an address to the Parliament. Along the same lines, Donald Trump publicly threatened North Korea with ‘fire and fury’ and even with ‘total destruction’.

Although the ICJ refused to differentiate between nuclear and conventional weapons, when assessing the legality of the threat of nuclear weapons use (para 48), the state practice seems to have accepted a special standard for nuclear threats which is measured against the strategy of deterrence. For instance, the UK’s High Court of Justiciary stated that ‘deployment of nuclear weapons in time of peace … is utterly different from the kind of specific ‘threat’ which is equated with actual use’ (p. 452). Under this approach, states would only cross the line of nuclear deterrence and resort to the threat of using nuclear weapons if such a threat is specific enough, i.e. directed against a specific target.

Considering that the arbitral tribunal went so far as to equate the phrase ‘to face consequences’ to a threat of the use of force in Guyana v Suriname (para 439), it is doubtful that states are still within the safe harbor of deterrence when directing their nuclear threats explicitly and specifically against other states.

Consequences for international law

 Driven by analogy with other types of WMD, international law seeks to raise the threshold for using of nuclear weapons (or even contemplating such use) as high as possible. The adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is among the most notable developments to this end. Still, there is an observable tension between the movement towards nuclear weapons ban as enshrined in the TPNW and the trends described above. International legal instruments like the TPNW are grounded on humanitarian considerations. In this particular case, the TPNW is meant to stigmatize nuclear weapons to the extent of their total abandonment by nuclear-weapon states. Considering that nuclear-weapon states refused to take any part in the ‘ban campaign’ leading to the adoption of the TPNW, it is reasonable to assume that such progressive stigmatization (which can eventually generate a parallel customary prohibition) is the only way to endow the TPNW with normative force. Analogy may be drawn with other disarmament treaties such as Convention on Anti-Personnel Mines Ban and Convention on Cluster Munitions: they contributed to the establishment of the customary prohibition of respective armaments even without directly binding all states possessing them.

However, when nuclear weapons are postured to be as usable as conventional ones, the normative boundary between the two is not hardened at all. No stigma is likely to appear for weapons possessing which is dictated and justified by strong military utility. As long as the conventionalization of nuclear weapons is taking place, no binding obligations will probably proceed from the newly established TPNW regime, either as treaty rules or as a crystallizing custom.

Along with the TPNW, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is to bear a major part of ramifications. The core obligation of non-proliferation under Article II is likely to be affected, since nuclear weapons, if conventionalized, make their acquisition by non-nuclear-weapon states more conceivable. Additionally, the deployment of tactical nuclear devices makes nuclear weapons more accessible and ‘proliferable’ in the technical sense, spurring their acquisition by non-state actors, particularly, by terrorist groups. This is an alarming possibility considering that the non-proliferation to non-state actors still constitutes a legal gap largely left to Security Council Resolution 1540.

Besides, the conventionalization of nuclear weapons invites their advancement, which is hardly in line with the (allegedly customary) obligation of nuclear disarmament under Article VI of the NPT. States are not in compliance with their disarmament obligation ‘to achieve a precise result – nuclear disarmament in all its aspects’ (para 99) when they engage in the ‘vertical proliferation’ (i.e. modernizing their nuclear arsenals or expand the range of scenarios to deploy nuclear weapons).

Should the described trends gain traction, their impact will in no way be limited to nuclear weapons regulation, but extend to the whole set of rules on the use of force. In particular, the gradually vanishing line between the threat of use of force and nuclear deterrence will further blur. It is questionable whether teetering on the brink of threats to use nuclear weapons is still justifiable under the concept of nuclear deterrence, which the ICJ was careful to characterize as practice ‘adhered to by states’ (para 67). Consequently, it is doubtful whether nuclear deterrence should enjoy such leniency with respect to the standard of the threat of use of force.

The jus ad bellum requirements for self-defense may also be affected by nuclear entanglement. For instance, it is highly questionable whether a limited strike with tactical nuclear weapons to preclude a massive conventional attack fails to meet the standard of proportionality. Similarly, it is not that clear whether anticipatory nuclear strike against a missile equipped with non-nuclear warhead is unlawful, since a state intercepting such a missile can be misled by its dual-use capacity in view of nuclear entanglement.

The questions of similar nature will arise with respect to jus in bello. With the gap between nuclear and conventional weapons narrowing, there is less room to assert that employing nuclear weapons should ab initio be contrary to the proportionality principle. Correspondingly, what concerns the lawfulness of belligerent reprisals conducted with the use of nuclear weapons, a pre-defined approach exclusively based on the ‘nuclear element’ is likely to give ground to the qualification irrespective of the type of weapons. To put it bluntly, the ICJ’s reasoning that the legality of the use of nuclear weapons shall be considered on the basis of case-to-case compliance with jus in bello (para 2D) seems to be regaining relevance.

 Conclusions

 While any radical transformation of the international legal regime governing nuclear weapons is still unlikely, there is definitely room for considering its adequacy for current challenges. In the near future we should be ready to make a choice of either raising the bar on the conventionalization of nuclear weapons or easing this process. Simply put, international law may find itself in need of deciding whether it is better to ban nuclear weapons altogether rather than to regulate them.

 

 


Amano’s May 24th Report to the IAEA BOG on Iran

Readers may have seen reports in the media about IAEA Director General Yukiya Amano’s most recent report to the IAEA Board of Governors on Iran. Jonathan Tirone has a good one here, as usual.  Although the BOG report itself is restricted distribution, once again in the interests of transparency a Vienna source has provided a copy of the report to Arms Control Law for public dissemination.  You can find it at the link below.

Generally speaking, this report is consistent with the other recent DG reports on Iran’s compliance with the terms of the JCPOA and the IAEA’s monitoring and verification activities pursuant to Iran’s comprehensive safeguards agreement and its additional protocol agreement, which Iran is provisionally applying according to the terms of the JCPOA.

This report, as previous reports have done, finds Iran in compliance with its various safeguards commitments and with the terms of the JCPOA.  It’s worth reiterating in that context some of the facts of the IAEA’s extensive and really unprecedented monitoring activities in Iran, as the IAEA itself reported in its 2017 Safeguards Implementation Report which I recently posted here.

In 2017, the IAEA conducted 419 safeguards inspections in Iran.  This is far and away more than in any other safeguarded state.  Added to this, the IAEA conducted a total of 35 complementary access inspections in Iran, pursuant to the terms of Iran’s additional protocol agreement. These are sometimes referred to as “snap” inspections because of the shorter notice period given to the state prior to the inspection.  These complementary access inspections can also be requested at a broader range of sites than normal inspections under the comprehensive safeguards agreement.  Again, the number of complementary access inspections conducted by the IAEA in Iran in 2017 was significantly higher than in any other state.

Back in March, Amano said that the IAEA “has the world’s most robust verification regime in place in Iran” and has access to “all the locations” that it needs within Iran.

So it is a bit surprising that in this most recent Iran report to the BOG, while again confirming Iran’s compliance with the terms of both the JCPOA and its safeguards agreements, Amano chose to editorialize by saying:

The Agency has continued to evaluate Iran’s declarations under the Additional Protocol, and has conducted complementary accesses under the Additional Protocol to all the sites and locations in Iran which it needed to visit. Timely and proactive cooperation by Iran in providing such access would facilitate implementation of the Additional Protocol and enhance confidence.

Timely and proactive cooperation? The 419 completed inspections and 35 granted complementary access requests weren’t good enough for you? Geesh.  There’s just no pleasing some people!

It’s pretty obvious what the motivation for this superfluous editorializing was. It was almost certainly to throw a bone to the state that brought Amano to the DG dance in the first place, and then got him his second and now third terms in the job. Remember those Wikileaks docs on the “cozy” relationship between Amano and the U.S. delegation to the IAEA?  Well this appears to be him doing his part by inserting this unnecessary language that allows the Trump administration to have a small but useful negative talking point about the IAEA report.

 

IAEA BOG Iran Report May 2018.


2017 IAEA Safeguards Implementation Report

I’ve been in reading and thinking (and despairing) mode for the past couple of weeks since the Madness of King Donald resulted in the U.S. withdrawing from the JCPOA.  I have lots of thought on that and will try to write something soon. If you’re interested in my day to day thoughts (read anguishings) on that subject and its relevance to the bumbling U.S. approach to North Korea, consider following me on Twitter at @DanJoyner1

For now, find at the below link the IAEA’s 2017 Safeguards Implementation Report, which was provided by a source in Vienna promoting greater transparency in reporting on IAEA nuclear verification.  These annual SIRs make extremely interesting reading about how the IAEA views safeguards agreement implementation and compliance by the 181 states that have safeguards agreements in place with the IAEA.  There’s also a lot of information in there about the IAEA’s budget and verification activities.  It can be usefully read alongside Jonathan Tirone’s excellent analysis here of IAEA monitoring and verification activities in Iran.

With regard to Iran specifically, the 2017 SIR puts Iran, correctly, in a category alongside 56 other states which have a comprehensive safeguards agreement AND an additional protocol agreement in force, but for whom the agency has yet to issue a “broader conclusion” on the absence of undeclared nuclear material in the country.  This is a considerable improvement in the consistency with which the IAEA has handled the Iran case, as compared to previous SIRs. I examined the problems of this inconsistency in Chapter 5 of my book accessible here.

IAEA 2017 SIR

 


Safeguards Provisions in the Treaty on the Prohibition of Nuclear Weapons

I’m very pleased to host a guest post by Dr. Eirini Giorgou. I think she does a really excellent job in the piece of explaining the safeguards provisions in the TPNW, and the debates that led to their adoption,  and then responding to a number of criticisms that have been leveled against how these provisions were crafted.  I think this is really exemplary legal work.  I also don’t find anything in it with which I disagree.  So I highly recommend it to readers.

Dr. Giorgou is a legal adviser on weapons law in the International Committee of the Red Cross (ICRC), with experience in multilateral disarmament diplomacy. She was previously Disarmament adviser in the Department of Foreign Affairs and Trade of Ireland. In that capacity she participated in the negotiations on the Treaty on the Prohibition of Nuclear Weapons, including by facilitating negotiations on the Treaty’s Safeguards provisions. Dr Giorgou is a licensed lawyer and holds a PhD in International Law from the University of Geneva, Switzerland.

The views expressed herein are of the author and do not necessarily reflect the position and views of the ICRC or of the Department of Foreign Affairs and Trade of Ireland

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Safeguards Provisions in the Treaty on the Prohibition of Nuclear Weapons

By: Eirini Giorgou

Since its adoption by 122 states on 7 July 2017, the Treaty on the Prohibition of Nuclear Weapons (TPNW) has frequently been made the target of criticism as regards its Safeguards provisions. The following provides an analysis of these clauses as contained in the Treaty’s Articles 3 and 4, outlines the main arguments that have been leveled against the Treaty in this regard, and responds to these.

What does (and what doesn’t) the TPNW have to say on Safeguards – and why.

 To Safeguard or not?

It did not take long for negotiators to agree that Safeguards provisions were necessary and could not be omitted without sending a dangerous political message: that the new Treaty undermined the existing Safeguards regime and that, by creating a loophole, it encouraged states to withdraw from the NPT and from their existing Safeguards obligations. Once the decision to include such provisions was made, negotiating parties were faced with two major difficulties: agreeing on how strict a Safeguards standard they should adopt; and ensuring that this standard would neither undermine the existing IAEA Safeguards regime, nor create an unwanted legal status quo by subordinating the new Treaty to other instruments or international organizations.

Throughout the negotiations, the issue of Safeguards was closely linked to that of the ratification of or accession to the Treaty of states having possessed (at any time after the date set for its adoption, namely 7 July 2017) nuclear weapons. Very soon there was consensus around the fact that the Safeguards standard to be imposed by the TPNW, whatever that was, should be different – and higher – for this category of states, compared to those that had never possessed nuclear weapons, or had eliminated them prior to the cut-off date.

It was therefore agreed that a distinction be drawn clearly between those states who did not possess nuclear weapons after 7 July 2017 and those who did, and that the respective Safeguards rules and obligations be contained in different articles. Hence Article 3 only applies to the first category of states, while Safeguards provisions applicable to the second category are contained in Article 4.

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ARMS CONTROL LAW PODCAST # 2 : The Treaty on the Prohibition of Nuclear Weapons

Jack Beard and I recently sat down for a discussion about the recently adopted Treaty on the Prohibition of Nuclear Weapons (TPNW), and recorded it as a podcast.  I think the discussion was good, as Jack can fairly be described as a bit of a skeptic about the TPNW, and I can fairly be described as essentially a proponent of the TPNW.  We of course agree on a lot of things, but we were able to tease out some differences too. I hope those of you out in listening land find it interesting. Comments are open.

Listen to the podcast here.