This note does not discuss the pros and cons of the ban concept. Rather it aims to give a short introduction to key points in the current text, and identifies areas where drafting improvements are needed.

The UN negotiating conference for the nuclear weapon prohibition convention held its first session on 27-31 March 2017 and is due to hold its second session on 15 June-7 July. The General Assembly is due to review the results of the conference in October 2017 and decide on next steps. The President of the Conference released the first draft for the convention on 22 May 2017.

Article 1 of the draft convention prohibits the following actions with respect to nuclear weapons: development, production, manufacture, acquisition, possession, stockpiling, testing, transfer, stationing, deployment, and use. It also prohibits assistance, encouragement or inducement of anyone to engage in any activity prohibited to a party under the convention.

The prohibition of possession makes it clear that only states with no nuclear weapons – states that have never had them or states that have eliminated them – are eligible to join the convention. This is clear also from Article 3 and Article 4.

Article 3 requires all parties to accept safeguards in accordance with the Annex to the convention. The Annex specifies that these safeguards are to be equivalent to the safeguards applicable to non-nuclear-weapon states under the NPT – though the drafting does not say this explicitly and, as discussed below, needs to be improved.

Article 4 sets out verification requirements for parties that have eliminated their nuclear weapons. The drafting of this article is confused and needs to be improved, see below. Alternatively this article could be omitted.

One aspect readers may find puzzling is the reference in Article 4 to parties that had possessed nuclear weapons after 5 December 2001. It appears this date was nominated because it was the date by which Belarus, Kazakhstan and Ukraine agreed to the removal of nuclear weapons from their territories under the Lisbon Protocol.

While nuclear-armed states are not eligible to join the convention, Article 5 sets out a process by which they can be associated with the convention if they so choose. Under Article 5 proposals for further effective measures relating to nuclear disarmament, including provisions for verified and irreversible elimination of remaining nuclear weapons, may take the form of protocols to the convention, if agreed by the parties at a meeting of parties or review conference. The text leaves it completely open as to the substance of the protocols and the nature of any commitments they might set out – these would be matters for the convention parties to decide. The text does not set out the decision-making process that would apply, for example, whether this would be by simple majority.

Article 19 provides that the convention does not affect rights and obligations under the NPT.

Entry into force is to be 90 days after the 40th ratification or accession (Article 16).

Duration is to be unlimited (Article 18). There is a withdrawal formula similar to that under the NPT.

Reservations are not permitted (Article 17).

Comment – differences to the NPT

For non-nuclear-weapon states party to the NPT the text largely replicates NPT obligations.  A significant departure from the NPT is the prohibition on stationing and deployment. This has major implications for extended nuclear deterrence. It’s unclear whether states in alliance with nuclear-armed states, and covered by policies of extended nuclear deterrence, would be compliant with the convention if they join it. The prohibition on stationing takes the ban convention closer to the nuclear weapon-free zone treaties. This prohibition is an obvious issue for NATO parties, such as Germany, where nuclear weapons are stored. However, any state that is party to a current nuclear weapon-free zone treaty has already accepted this prohibition – so such a state that is in an alliance with a nuclear-weapon state is already bound not to allow stationing of nuclear weapons. The text also prohibits deployment of nuclear weapons – this is broader than stationing, and suggests a party could not allow preparations on its territory for the use of nuclear weapons.

A provision of more uncertain application is the prohibition against encouraging or inducing an activity prohibited to a party under the convention. This is open to different interpretations, including that it prohibits parties from accepting extended nuclear deterrence because this could amount to encouraging or inducing activities involving nuclear weapons.

Drafting issues: These points are included here in the hope that APLN members and other readers can influence their national delegations to pursue improvements to the text in the forthcoming negotiating session. Of course, they can only do so if their countries attend and are present at the table when discussions resume in New York on 15 June. They should be encouraged to do so in order to improve the prohibition convention, regardless of whether or not they decide in the end to sign.

The main drafting problems are in relation to the application of safeguards, where the text as currently drafted has an adverse impact.

The first problem is with the drafting of the Annex:

(i) Paragraph 2 describes the safeguards applicable to parties as being, or being equivalent to, “the agreement required in connection with the NPT” and then adds in brackets “INFCIRC/153 (corrected)”. INFCIRC/153 is the IAEA’s model comprehensive safeguards agreement. The problem in making such a specific reference is that it limits the scope of safeguards to those set out in this one document. This is much more narrow than the NPT itself, which refers to an agreement in accordance with the IAEA’s Statute and the Agency’s safeguards system. This formulation means the Agency’s safeguards system as it exists from time to time. This allows for the safeguards system to be developed and improved over time, the safeguards Additional Protocol adopted in 1997 being an example. There could be further safeguards instruments in the future.

Paragraph 2 therefore reduces the scope of safeguards compared with the NPT. This could degrade the safeguards standard applicable to non-nuclear-weapon states party to the NPT, except for Article 19 which preserves rights and obligations under the NPT. However, the Annex will result in a lower safeguards standard, compared with the NPT, for states that never join the NPT. The Annex could also result in a lower standard for ex-nuclear-weapon states – if they join the ban treaty, what safeguards standard would apply? It makes no sense for a lower safeguards standard to apply to these states, if anything (given their knowledge of nuclear weapons and therefore the ability to reconstitute their weapons programs) the safeguards standard should be higher.

Paragraph 2 should be redrafted. One way of improving it is to pick up the language of paragraph 3, which is based on the NPT itself. This could say the agreement referred to in paragraph 1 above shall be, or shall be equivalent in its scope and effect to, the agreement required in connection with Article III.1 of the NPT. This is the safeguards language applying to non-nuclear-weapon states, and would reflect that once a nuclear-armed state disarms it is effectively a non-nuclear-weapon state.

(ii) A drafting point – paragraph 2 mentions “the Agreement referred to in paragraph 1”, but paragraph 1 does not refer to any agreement (the word does not appear).

The next problem is with the drafting of Article 4. There is an inconsistency with Article 3. Article 3 requires a party to accept safeguards as provided for in the Annex (discussed above). However, Article 4, applying to a state that has nuclear weapons but disarms prior to joining the ban convention, is more restrictive than a normal safeguards agreement, allowing the IAEA access only to locations or facilities “associated with a nuclear weapon program”, and access elsewhere only on a case-by-case basis.

It is not clear what the drafters intend here. The IAEA should have access anywhere in the state as required to verify the correctness and completeness of the state’s declaration of nuclear material, subject only to the state’s right to ask for managed access to protect confidential information (INFCIRC/153 paragraphs 5, 76 and 77, Additional Protocol Article 7). Maybe the drafters intend that Article 4 will apply until the IAEA has verified the state’s initial inventory, and normal safeguards will apply after that. But the IAEA can’t verify the completeness of the declaration without also undertaking verification at locations and facilities not declared to be associated with the nuclear weapon program – the Agency needs access to all nuclear material in the state in accordance with usual safeguards practice.

Article 4 is unacceptable as currently drafted. The inconsistency between Articles 3 and 4 should be rectified. If Article 4 is meant to give the IAEA authority to do everything it needs to verify the completeness of the initial inventory, including access to sensitive locations (if necessary under managed access), it should say so, as currently drafted Article 4 compromises the Agency’s safeguards authority.

Finally, the convention’s reference to nuclear testing (Article 1.1.(e)) and the CTBT could be improved. The prohibition on testing – without any cross-reference to the CTBT other than the preamble – creates questions about the relationship with CTBT provisions, e.g. regarding the International Monitoring System. There could be the anomalous situation that a state whose ratification is required for entry into force of the CTBT could join the ban convention and say its obligations are satisfied, without ratifying the CTBT, leaving the CTBT still in provisional operation. At the least there should be a saving provision, similar to Article 19, saying the ban convention does not affect the rights and obligations of parties to the CTBT.  A provision requiring ratification of the CTBT would be helpful.

This was originally written for the Nuclear Threat Monitor.

 

Image: Wikimedia Commons.