The “bizarre” ban – a response to the draft Prohibition of Nuclear Weapons


Atomic Reporters’ Tariq Rauf provides some preliminary comments on the first draft of a Convention on the Prohibition of Nuclear Weapons that is under negotiation at the United Nations in New York — these negotiations will continue from 15 June–7 July 2017
. (Tariq Rauf was Head, Verification and Security Policy Coordination at the International Atomic Energy Agency from 2002-2011.) Note: this article was updated 28 May 2017

https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/05/A-CONF.229-CRP.1.pdf

https://www.un.org/disarmament/ptnw/Newchair.html

COMMENT> without knowing the travaux préparatoires (official record of a negotiation) at first glance this document, the first draft of the nuclear weapon treaty, seems to be a bizarre document on a number of counts:

Article 2

Declarations

  1. Each State Party shall submit to the Secretary-General of the United Nations, not later than 30 days after this Convention enters into force for it a declaration in which it shall declare whether it has manufactured, possessed or otherwise acquired nuclear weapons or other nuclear explosive devices after 5 December 2001.

COMMENT >>> the significance of the 5 December 2001 date is not explained >>> this Article would exclude declarations by states that host “stationed” nuclear weapons??

UPDATE: In her letter to Geneva delegations of 24 May, the President stated: “The draft also considers that there are three States, namely Belarus, Kazakhstan and Ukraine, which have voluntarily given up nuclear  weapons  pursuant  to a treaty commitment.  In order to avoid subjecting any State to a duplicative verification exercise, the draft mandates South Africa-method verification for those States which have possessed, manufactured or acquired nuclear weapons from the date that the Lisbon Protocol under the START I Treaty was implemented- 5 December 2001.” >>>> On 5 December 2001, Russia and the US announced that they implemented the provisions of START 1. As regards, the “South Africa-method verification”, see my paper: Engagement on Nuclear Disarmament between Nuclear Weapon-Possessing States and Non-Nuclear-Weapon States (May 2017) page 25, distributed in Vienna at the NPT PrepCom, download at: https://www.sipri.org/sites/default/files/Engagement-nuclear-disarmament.pdf.

 Article 4

Measures for States that have eliminated their nuclear weapons

  1. Each State Party that has manufactured, possessed or otherwise acquired nuclear weapons or other nuclear explosive devices after 5 December 2001, and eliminated all such weapons or explosive devices prior to the entry into force of the Convention for it, undertakes to cooperate with the International Atomic Energy Agency for the purpose of verification of the completeness of its inventory of nuclear material and nuclear installations.
  2. Unless otherwise agreed by the States Parties, arrangements necessary for the verification required by this Article shall be concluded in an agreement between the State Party and the International Atomic Energy Agency. Negotiation of such an agreement shall commence within 180 days of the submission of the declaration provided for in Article 2

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    . Such agreements shall enter into force not later than eighteen months after the date of the initiation of negotiations.

  3. For the purpose of performing the verification required by this Article, the International Atomic Energy Agency shall be provided with full access to any location or facility associated with a nuclear weapon programme and shall have the right to request access on a case-by-case basis to other locations or facilities that the Agency may wish to visit.

COMMENT >>> The language of this article is imprecise >> it calls for only “completeness” of the declaration of nuclear material inventory but not for its “correctness” >> this is a step back from the current IAEA verification standard. The nature of the “agreement” with the IAEA is not specified >> safeguards for NPT NNWS follow the model of INFCIRC/153 (Corr.) >> the ban treaty calls for an unspecified agreement, without noting which entity will prepare the draft of such an agreement, nor does it state whether such an agreement will be in conformity with the IAEA safeguards system??? The modality for access to NW locations/facilities/sites and any other sites is not specified. (The Annex though refers to /153.)

 

Article 19

Relations with other agreements

This Convention does not affect the rights and obligations of the States Parties under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).

COMMENT >>> The purpose of this article is not clear >>> how will NPT Article VI relate to the ban treaty?? And, if the NPT is noted, why not also the Comprehensive Nuclear-Test-Ban Treaty (CTBT??) Articles 1 (e) and 2 (b) of the draft NW convention on no-nuclear testing could undermine the CTBT??? Interesting question: should the NW ban be framed as providing for the implementation of NPT Article VI especially by the nuclear weapon states (NWS) and their allies, and complementing the NPT 1995, 2000, 2010 agreed outcomes??? And, include an additional article to bring in the nuclear-armed States non-parties to the NPT, (with reference to the United Nations Special Session on Disarmament [UNSSOD] and other agreed UN outcomes) to achieve universality??  No reference to nuclear weapon free zone (NWFZ) treaties under which more than 110 States already have renounced nuclear weapons!

Annex

Safeguards

  1. Procedures for the safeguards required by Article 3 shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by Article 3 shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.
  2. 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 the Treaty on the Non-Proliferation of Nuclear Weapons (INFCIRC/153 (corrected))
    . Each State Party shall take all appropriate steps to ensure that such agreement is in force for it not later than eighteen months after the date of entry into force for that State Party of this Convention.
  3. Each State Party undertakes not to provide source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material for peaceful purposes to: (a) any non-nuclear-weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons unless subject to the safeguards required by Article III.1 of that Treaty; (b) any other State unless such material or equipment is subject to applicable safeguards agreements with the International Atomic Energy Agency and shall be used for exclusively peaceful purposes.

COMMENT >>> the draft treaty selectively reproduces text from the NPT without full understanding of the IAEA safeguards system, the requirement by the IAEA to have both a comprehensive safeguards agreement (CSA) and an additional protocol (AP) in force for non-nuclear weapon states (NNWS) to provide credible safeguards conclusions >>> [the absence of reference to the AP suggests the hand of Brazil?] >>> it will be virtually impossible for  former nuclear-armed States to implement /153 safeguards (and the full AP), as the current nine NW-possessor States are NOT like South Africa, Belarus, Kazakhstan and Ukraine >>> the 9 have complex longstanding NW programmes, facilities and materials that will take a long time to eliminate (if such a decision is taken) and even then many elements of the nuclear weapon programmes will remain off limits to any international verification >>> interestingly the ban treaty makes no reference to a Fissile Material (Cut off) Treaty FM(C)T and inclusion of stocks as an enabling mechanism for accounting and verification of weapon-usable nuclear materials???