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.

 

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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

 


Building A WMD-Free Zone on Existing Treaties and Conventions Syrian CWC-Adherence and Reactions, Especially in Israel

[Cross-posted from The Trench.]

Speaking notes for the side event to the 2017 Preparatory Committee of the Nuclear Non-Proliferation Treaty (NPT), organised by the Geneva Centre for Security Policy (GCSP) and Academic Peace Orchestra Middle East (APOME), Vienna, 8 May 2017.

It builds on and updates an earlier posting of 13 March 2015.

Operation of the CWC in the Middle East

  • As of 1 May 2017, the Chemical Weapons Convention (CWC) comprises 192 states parties. The CWC entered into force 20 years ago, on 29 April 1997. It has the largest number of parties of any weapon control treaty.
  • Four states, including two from the Middle East, are still outside the convention: Egypt, Israel, North Korea and South Sudan. (Israel did sign but not ratify the convention.)
  • Given the armed conflicts in different parts of the Middle East, the Organisation for the Prohibition of Chemical Weapons (OPCW) has intervened in Syria and Libya to secure declared chemical weapons (CW) and have them destroyed in other parties to the CWC so as to prevent their use by any one of the belligerents in either country. The Libyan operation took place in August 2016. It drew on the precedent set by and experience gained from the evacuation of chemicals from Syria.

Situation in Syria

  • Syria acceded to the CWC on 14 September 2013 and formally became a state party on 14 October. This was the outcome of a framework agreement on the elimination of Syria’s chemical warfare capacities between Russia and the United States reached in Geneva on 14 September.
  • Since Syria’s accession to the CWC the OPCW has:
    • verified the destruction of 24 of the 27 CW production and storage facilities. Lack of safe access has prevented inspectors from destroying one final aircraft hangar and confirming the condition of two stationary above-ground facilities.
    • overseen the evacuation and complete destruction of all declared chemical chemicals (precursors to nerve agents and mustard agent) for a total of about 1,300 metric tonnes. It also verified the destruction of declared delivery systems.
  • However, there remain several outstanding issues, including the OPCW’s inability to confirm the destruction of 200 metric tonnes of mustard agent in March 2013 (i.e. about 6 months before Syria’s accession to the CWC), the discovery of nerve agent traces in locations not declared by the Syrian government, and the later discovery of an undeclared ricin production facility.
  • Furthermore, since Syria’s accession there have been multiple incidents involving the use of toxic chemicals as weapons, mostly chlorine. On 4 April an attack with the nerve agent sarin took place against the city of Khan Sheikhoun, the first such use since the sarin strike against Ghouta in August 2013. At the time of writing it is unclear whether the sarin was prepared from undeclared volumes of precursor chemicals or whether Syrian scientists and engineers produced a batch from scratch.
  • The Islamic State in Iraq and the Levant (ISIL) has been responsible for some isolated attacks with chlorine and mustard agent in Syria and Iraq. This has created new challenges for the OPCW in terms of investigating and responding to the alleged events. Indeed, these incidents mostly involved the use by a non-state actor against another non-state actor on the territory of a state party to the CWC that is not under the control of that state party.
  • The Fact-Finding Mission (FFM) of the OPCW has confirmed repeated CW use in Syria. The UN Security Council established the OPCW-UN Joint Investigative Mission (JIM) to attribute responsibility for the chemical attacks. JIM has thus far held the Syrian government responsible for three attacks and ISIL for one. Its investigation is ongoing.

Responses from within the Middle East

  • Iran is a strong backer of the Syrian leader Bashar al-Assad. Having been a victim of chemical warfare during the 1980–88 Iran-Iran war, it strongly condemns chemical warfare. However, it denies the Syrian government’s responsibility for the CW attacks since August 2013 and instead blames insurgent factions. It follows the arguments laid out by Russia (and to a lesser extent by China) and plays an active role in the decision-making processes relating to the technical assessments prepared by the FFM in the Executive Council of the OPCW.
  • Some government officials, politicians or commentators both inside and outside the Middle East have made rather wild allegations (without any factual substantiation of these political statements) that other external parties to the civil war supply belligerents with the materials for chemical warfare. Iran has been named as a supplier of the Syrian government; uncontrolled stockpiles in Libya might be transferred to various belligerents in Syria.
  • Attribution of responsibility for the CW attacks has been accompanied by claims that neighbouring states are responsible for supplying or facilitating the transfer of chemicals and equipment to belligerent factions they support. Since with the exception of Israel all neighbouring states are parties to the CWC, the claims are tantamount to an accusation against such states of a material breach of the convention.
  • The current Israeli government has long maintained that Syria has never given up its entire CW capacity since joining the CWC. The difficulties for the OPCW to close the Syrian disarmament dossier tend to reinforce Israel’s deep-rooted pessimism about the ability of international weapon control treaties to guarantee its national security. Israeli attitudes towards Iran, which include conviction of Tehran’s non-compliance with the CWC, appear to be bolstered by Iran’s on-the-ground military support for Syria and Hezbollah in both Lebanon and Syria and its interventions in the OPCW Executive Council.

Concluding thoughts

  • Over the past two decades the CWC has contributed much to the removal of the spectre of chemical warfare, particularly in the Middle East. Addressing specific challenges in Syria and Libya, the states parties to the convention have demonstrated adaptability, flexibility and willingness to support financially or materially the extraordinary disarmament efforts in the field. As a result, the treaty regime has evolved considerably with respect to meeting challenges unforeseen by the CWC negotiators.
  • However, the unrelenting use of toxic chemicals as a weapon of warfare in Syria fundamentally challenges the CWC’s most basic premise to never under any circumstance use CW. Furthermore, backing of belligerents by outside parties (all of whom have joined the CWC) is increasingly tending towards a violation of the prohibition to never under any circumstances to induce, in any way, anyone to engage in any prohibited activity (Article I ‘General Obligations’).
  • Syria’s inability or unwillingness to resolve all outstanding issues with regard to its CW programmes also challenges the integrity of the CWC and the OPCW’s operational procedures. Factual findings are becoming more and more politicised (often driven by ulterior geopolitical motivations), making consensus-based decision-making increasingly difficult.
  • Since the 2nd World War all major occurrences of chemical warfare (with the exception of US use of herbicides and riot control agents in Indochina in the 1960s and early 1970s) have taken and are taking place in the Middle East. All these instances of CW use in the Middle East involved Arab regimes and have targeted fellow Arabs, Muslims or their own population. None were ever launched against Israel.
  • Compared with the question of regional nuclear disarmament, which directly involves Israel, Arab countries have despite the history of chemical warfare in the region remained remarkable indifferent to the many uses of chemical weapons. For instance, not a single member of the Arab League contributed financially or materially to the disarmament operations in Syria or Libya.

CWC 20th anniversary: Speeches and impressions

Commemoration of the 20th Anniversary of the Entry into Force of the Chemical Weapons Convention (The Hague, 26 April 2017)

Invitation to the Commemoration

The Programme

Collection of speeches

  • Welcome address by Ambassador Ahmet Üzümcü, Director-General of the OPCW
  • Video message by Mr António Guterres, Secretary-General of the United Nations
  • Address by Mr Bert Koenders, Minister of Foreign Affairs, The Netherlands
  • Address by Crown Princess Victoria of Sweden
  • Address by Mrs Pauline Krikke, Mayor of The Hague
  • Address by Ambassador Dr Christoph Israng, Chairperson of the Conference of the States Parties

Some photographic impressions

The guests gather in the Ridderzaal (Hall of Knights)

OPCW Director-General Ambassador Ahmet Üzümcü welcomes delegates and guests

Video message by UN Secretary-General António Guterres

Netherlands Foreign Minister Bert Koenders

Mrs Pauline Krikke, Mayor of The Hague

Unveiling of the Commemorative Plaque by King Willem-Alexander of The Netherlands and OPCW Director-General Üzümcü

Ambassador Christoph Israng, Chairperson of the Conference of the States Parties


Still Alive

Yes, I’m still alive. I actually had the great fortune of working with Jean-Pascal Zanders last week at a workshop on strategic trade controls in Muscat, Oman.  We were there to give advice and assistance to the Government of Oman as they review their domestic strategic trade control laws. As he explained to me, I was the “nukee” on the panel and he was the “cb”.  Below is a picture of us at dinner in Muscat, along with former U.S. Commerce official Scott Bunton.  Anyway, during one of our very enjoyable chats at the British pub located inside the hotel, I mentioned the blog at one point and Jean-Pascal said “yes, although I am the only person writing on it these days.”  And he’s quite right.  He has been invaluable and I have been remiss.

I have been doing a lot of these legal assistance projects lately, as a consultant with the U.S. State Department, and that has taken up a lot of my time and brain capacity.  But there has certainly been no paucity of interesting things going on in the world of arms control law.  Perhaps chief among them has been the renewal of use of chemical weapons by the Assad regime in Syria, and the U.S. missile strike in response to them.  There is no end of sound and fury about that issue going on at other international law blogs, and I’ve been reading it with interest.  I’ll probably write a paper soon with some of my macro observations about such academic debates on use of force law.

The other big arms control law happening is the ongoing negotiations for a nuclear weapons ban convention at the United Nations in New York.  The first set of negotiations was held last month, and they are scheduled to resume in June. I’ve of course been following this news with interest as well.  This piece over at NTI is a very useful summary of the negotiations thus far. The betting seems to be that a text will likely be approved by the scheduled end of negotiations in July. Then the focus will shift to which and how many states actually become parties to the convention, and what legal implications that will have for the NPT and the general nuclear disarmament regime.  I have little doubt that I’ll be doing some writing on that over the next year.

So certainly a lot going on in this area, and my apologies for not being more useful in covering it on the blog. Maybe I’ll start doing better this summer once classes and trips are over.

Oman 1


Pay up in the name of BW disarmament (2) – Civil society gets involved

[Cross-posted from The Trench]

On 2 April I described how non-payments by states parties were defunding the implementation of the Biological and Toxin Weapons Convention (BTWC) and risking to shut down the 3-person Implementation Support Unit (ISU) and the convening of meetings. A couple of weeks earlier the Ambassadors of the three Depository States – the Russian Federation, United Kingdom and United States – had written an urgent letter to the BTWC States Parties to immediately comply with their financial obligations.

Since then, the situation has ameliorated somewhat. The contracts of the ISU staff have now been extended until the end of the year. But the crisis is far from over. When I wrote my blog posting, the deficit for the BTWC stood at US$ 379,557. According to the latest update on the financial situation (31 March) this figure has been reduced to US$ 188,631.

One county stands out in this dossier: Brazil. As reported in the earlier blog post, it owed the BTWC US$ 298,459 or 78.6% of the total deficit of the BTWC. With the exception of 2011 it has defaulted on its financial obligations or paid its dues only partially since 2001. That figure has not changed, which means that its debt now exceeds the current budgetary shortfall. It exceeds the combined outstanding debt of all other states parties.

The combined outstanding debt for four weapon control agreements administered by the UN Office for Disarmament Affairs in Geneva –  the BTWC, Convention on Cluster Munitions (CCM), Convention on Certain Conventional Weapons (CCW), and Anti Personnel Landmine Convention (OTW) – amounts to a staggering US$ 929,112. Brazil’s share is US$ 652,657 or 70%.

Civil society rears it head

Civil society is now taking up the issue. Mary Wareham, advocacy director of the Arms Division of Human Rights Watch, has engaged Brazilian officials directly. In a Twitter exchange she elicited from Mr Benoni Belli, Policy Planner at Brazil’s Foreign Ministry, that ‘other payments will be made this year‘. Promising indeed, but promises unfortunately do not alleviate the financial problems.

The civil society platform Friends of the Biological Weapons Convention, coordinated by Kathryn Millett, has now also taken up the issue. Yesterday it posted an appeal to its Facebook page and announced the launch of an action campaign to prompt Brazil and other states to pay their assessed contributions:

On 31 March, the UN Financial Resources Management Service released a summary of the status of financial contributions to four disarmament conventions – the BWC, the Convention on Cluster Munitions, Convention on Certain Conventional Weapons and the Mine Ban Treaty.

The summary (which updated an earlier summary dated 28 Feb) demonstrated that 3 of the 4 treaties were owed almost $1 million USD by states parties in unpaid assessed financial contributions. The BWC alone is owed almost $190K by its member states.

The significance of these debts cannot be overstated. New UN financial rules mean that meetings cannot take place nor can staff contracts be renewed unless the money is already in the bank. To that end, an extraordinary letter from the BWC co-depositories (Russian Fed, USA & UK) dated 21 March was sent to all states parties urging them to pay up or risk the possibility of a) not being able to renew ISU contracts past April 2017, and b) cancellation/curtailment of the 2017 Meeting of States Parties (MSP) scheduled for December.

While the BWC is hosted by the UN Office for Disarmament Affairs, it is NOT an UN treaty and therefore cannot take advantage of central UN funds or reserves, nor is there a working capital fund like at the OPCW, which can be used to cover temporary financial shortcomings. In short, the BWC is fully dependent on states parties paying their dues in a timely fashion. If states do not, meetings will not happen and staff cannot work to administer the treaty.

That BWC ISU staff contracts have now been renewed until the end of the year is a very welcome development, but does not mean the BWC is out of the woods yet: the BWC does not have sufficient funds to cover the costs of the MSP in December.

Following the failure of the BWC Eighth Review Conference to achieve any meaningful progress in strengthening the convention, a successful MSP in December is more critical than ever to the continued health and relevancy of the treaty. This unsatisfactory situation is further compounded by the rise in use of non-conventional weapons by both states and non-state actors as evidenced by the situation in Syria. The norm of the Chemical Weapons Convention (the BWC’s sister convention) is under threat by the continued instances of the use of sarin and chlorine as weapons of war. The use of banned conventional weapons in warfare such as cluster munitions and landmines is also on the increase. Disarmament treaties are under threat and states parties must act to positively reinforce the norms against the use of banned weapons.

So – what can be done?

Civil society across disarmament domains will be writing letters to states that are the most significantly in arrears (such as Brazil). Please do consider signing these letters (we will post the letter here from the BWC community) and also check directly with your country’s Ministry of Foreign Affairs on the status of their payments. If they haven’t paid their contributions, call/ email them demanding that they do so. Contact your country’s mission in Geneva and ask them what they are doing to remedy their debts. Make a noise on twitter.

If you would like more information on this situation as it progresses, please send a private message and we will get back to you. You can also read more on the issue here:

– JP Zanders, Pay up in the name of BW disarmament: http://www.the-trench.org/pay-up-in-the-name-of-bw-disarma…/

– G Koblenz & P Walker, ‘Can Bill Gates rescue the bioweapons convention?’, http://thebulletin.org/can-bill-gates-rescue-bioweapons-con…

Thank you all for your kind attention and for any action you can also undertake to remedy this situation. The latest UN financial summary can be found here: http://bit.ly/2pLJ1DA
http://bit.ly/2pLJ1DA.

It was a remarkable act. On 21 March the Permanent Representatives to the UN Conference of Disarmament of the three co-depositories of the Biological and Toxin Weapons Convention (BTWC)—the Russian…
the-trench.org

Time to act is now

Today, 22 April 2017, is the 102nd anniversary of the first modern chemical weapons attack. Chlorine is still a weapon of choice in the wars in Syria and Iraq. In both countries we have seen escalation to mustard and nerve agents. The Chemical Weapons Convention, which is as strong as a weapon control treaty gets today, is facing huge challenges to restore the basic principle of non-use under any and all circumstances. Not technical challenges, but as a consequence of the pursuit of geopolitical priorities by some key players…

While great civil society optimism is currently pushing many UN members to negotiating a ban on nuclear weapons, existing weapon control treaties are facing daily challenges. Some states are eroding value of these treaties as armed conflicts appear interminable; in other cases they simply fail to pay their dues, which undermines the tools to uphold the international norms embedded in those agreements. We simply cannot afford a breakdown in those regulatory regimes!

To this end, any stakeholder (professional or scientific association, academia), civil society organisation, or individual who wishes to preserve the four afore-mentiond international instruments to prevent of mitigate the consequences of armed conflict –  the BTWC, CCM, CCW, and OTW – should contact Mary Wareham or Kathryn Millett to see how they can participate in letter campaigns or other initiatives under development.


Hate mail for standing up for CW disarmament – A first?

The news just broke that the Trump administration launched cruise missiles against al Shayrat airfield in Syria in response to the chemical weapons attack in Khan Sheikhoun, Idlib Province on 4 April.

I then got the following message:

As usual with such religion-infused hate messages, the basic facts are all wrong and ignorance reigns supreme.

It is really sad that with so much intolerance concerning social relations, ethnicity and personal identity, the efforts at disarmament – a core tool in creating international stability, preventing the outbreak of war, or should that fail, escalation of the conflict – now too become the object of highly individualised hatred.

But Kathryn, to reply to your question: Yes, I am proud to stand up for disarmament and peaceful conflict resolution, and will always do so in spite of your hateful intercessional prayers for a person unknown to you.

In the meantime, please reflect on the fact that your president has never allowed or gave those (beautiful) innocent children a chance to seek refuge in the United States from the war calamaties in Syria.

Otherwise, I hope you have a nice and peaceful day in California.