Nuclear Weapons Convention on Track
Merav Datan, Alyn Ware, Jürgen Scheffran
1. United Nations calls for a Nuclear Weapons Convention
For the first time ever, the United Nations General Assembly, in three separate resolutions adopted on December 10, 1996, has called for negotiations leading to the conclusion of a Nuclear Weapons Convention (NWC).
The UN has, from its very first resolution in 1946 (1), supported the goal of the elimination of nuclear weapons. However, specific plans for achieving such a goal were not spelled out until the 1995 resolution calling for a timebound framework for nuclear disarmament (2), and the resolutions this year calling for negotiations leading to a NWC.
This year, the timebound framework resolution was re-adopted with the addition of a reference to concluding a NWC (3). In particular, it "calls upon the Conference on Disarmament to establish, on a priority basis, an ad hoc committee on nuclear disarmament to commence negotiations early in 1997 on a phased programme of nuclear disarmament and for the eventual elimination of nuclear weapons within a time-bound framework through a Nuclear Weapons Convention." The Conference on Disarmament functions by consensus, which means that as long as the nuclear weapon states refuse to begin negotiations, the CD will not be able to establish an ad hoc committee. Nevertheless, on the basis of the 1995 resolution, the Group of 21, presented a Program of Action for the Elimination of Nuclear Weapons to the CD in August of 1996 (4). This program provides an excellent map for the road to nuclear disarmament.
The General Assembly this year also re-adopted the resolution introduced by India which calls for negotiations on a Convention on the Prohibition of the Use of Nuclear Weapons (5). This year the resolution included an additional paragraph stating that the General Assembly is "determined to achieve an international convention prohibiting the development, production, stockpiling and use of nuclear weapons leading to their ultimate destruction."
However the most significant resolution on a Nuclear Weapons Convention was a new resolution introduced by Malaysia, focusing on follow-up to the advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons (6). This resolution welcomed the unanimous conclusion of the ICJ 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", and called upon "all states to fulfill that obligation immediately by commencing multilateral negotiations in 1997 leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, transfer, threat or use of nuclear weapons and providing for their elimination."
Unlike the first two resolutions, the Malaysian resolution gained positive votes from a number of western countries including Sweden, Ireland and Aotearoa/New Zealand, and the cosponsorship of a European country, San Marino. The resolution found support by undeclared nuclear States, including India and Pakistan, as well as by China as a declared nuclear weapon state. Despite pressure from the US and UK on NATO states to oppose the resolution, three NATO member countries abstained: Iceland, Denmark and Norway. In addition the Malaysian resolution did not lock negotiations into any one negotiating body, allowing for the possibility of follow-up action in a number of venues including the Preparatory Committee Meetings for the Non Proliferation Treaty Review, the first of which will be held from April 7-17, 1997 in New York.
Fidel Ramos, President of the Philippines, in a statement following the ICJ decision, called for "the immediate convening of the states parties to the NPT to negotiate a comprehensive Nuclear Weapons Convention pursuant to their obligation and responsibility under Article VI of the said treaty." An advantage of the NPT venue is that substantive work on certain aspects of the Nuclear Weapons Convention, such as verification methods, could begin even before the nuclear weapon states have all agreed to join the process. It is also possible that beginning negotiations through the NPT could put pressure on the nuclear weapon states to agree to establish an ad hoc committee in the CD, much as the holding of the Partial Test Ban Treaty Amendment Conference in 1991 was a key factor in the nuclear weapon states finally agreeing to establish an ad hoc committee in the CD to negotiate a comprehensive test ban treaty.
2. Incremental comprehensive approaches to a nuclear-weapon-free world
The success at the UN General Assembly is another indication that calls for the elimination of nuclear weapons have gained support at both the governmental and non-governmental levels. In spite of this unity on the general goal there is an on-going discussion on two concepts leading to a nuclear-weapon-free world: the incremental, or step-by-step approach, and the comprehensive approach.
The step-by-step approach would build on existing treaties and additional incremental measures that relate to nuclear non-proliferation, bilateral reductions, test bans, and the possible cutoff of fissile material. The comprehensive approach calls for negotiation of a convention for the complete prohibition and elimination of nuclear weapons. These two options have been identified in a report by the Canberra Commission (7): "As nuclear disarmament nears the elimination stage, consideration should be given to whether the legal obligations to sustain a nuclear weapon free world would be best given effect by the incremental approach of a number of separate instruments or through a comprehensive approach which would combine all relevant instruments into a single legal instrument; a nuclear weapons convention."
Each of the approaches in their absolute form has its advantages and disadvantages. Proponents of the incremental approach see the comprehensive approach as politically unrealistic and potentially harmful. A major criticism of the comprehensive approach is that it would delay the achievement of incremental steps that could be negotiated individually if the focus was not on negotiating the full NWC. Austria, for example, abstained on the Malaysian resolution because they believed that negotiations on a NWC would "delay negotiations on a cut off treaty", thus losing "a further significant stepping stone on our path towards a world free from the threat of nuclear weapons." In addition, negotiations on a NWC would necessarily have to address a timeframe for elimination of nuclear weapons. M. Krepon has argued that "near-term deadlines will be widely viewed as unrealistic, and will harden opposition to deep cuts in nuclear weapon states. Long-term deadlines, on the other hand, will not be taken seriously." (8) Moreover, waiting for conclusion of a comprehensive convention could mean lost opportunities for valuable steps toward real disarmament.
Advocates of the comprehensive approach consider reliance on step-by-step negotiations, without guarantees or an agreed process toward abolition, as ineffective and unlikely to lead to the goal of complete nuclear disarmament (9). The achievement of insignificant steps could even have a negative effect on the abolition process if they lead to postponement of more substantial steps. An integrated framework could also balance the security interests of all states. Otherwise, the nuclear weapon states would stick to nuclear deterrence policies, avoiding any measures undermining their relative strengths.
The deficiencies of the incremental approach are a major reason for India not to sign the CTBT. From the Indian perspective, technical sophistication of the testing programs of the nuclear weapon states allows continued nuclear weapons development within the CTBT, creating another form of discrimination. Similar problems can now be observed with the failure to agree on a mandate for negotiations on a fissile ban in the Conference on Disarmament (10).
The goal of eliminating nuclear weapons could best be furthered by an integrated strategy of incremental and comprehensive approaches, complementing and reinforcing one another, making the distinction artificial. While the comprehensive approach keeps the goal of nuclear abolition in sight and encourages the formulation of coordinated measures toward this goal, incremental developments can reduce the amount of unresolved problems and tasks, reinforcing the whole negotiation process and lowering the threshold to agree on a comprehensive convention. The founding statement of the Abolition 2000 Global Network can be seen as such an incremental comprehensive approach, calling in its first article for NWC negotiations and in the other ten articles for steps to abolition.
Negotiations on the NWC could serve as the major framework for integration and coordination of nuclear disarmament activities, combining unilateral measures and declarations, bilateral negotiations between USA and Russia, negotiations among the P-5 and multilateral negotiations in the CD. Single steps could be discussed and realized in various negotiation fora embedded into this framework, like a Fissile Ban, an agreement on No-Use, the removal and control of delivery systems or the creation of further nuclear-weapon-free zones (11). In a similar way Rebecca Johnson has suggested that the Nuclear Weapons Convention could itself be a "framework agreement, with protocols to deal with specific measures, such as a fissban, no first use and so on" (see note 10). The framework negotiations should ensure that all agreements act as "mutually reinforcing instruments" (Canberra Commission) that could finally be integrated into one instrument: the Nuclear Weapons Convention.
Most important for the opening of NWC negotiations would be the declared will of all states that the goal would be a convention to ban and eliminate all nuclear weapons within a timebound framework. The Group of 21 have called for the conclusion of negotiations on such a convention by the year 2000 and the complete elimination of nuclear weapons by the year 2020 (12). It is unlikely that the nuclear states will agree to a timeframe for the elimination of nuclear weapons before they enter into negotiations on the NWC. Nor will they be likely to agree on a date to conclude such negotiations before they start the negotiations. However, both a timebound framework and a target for the conclusion of negotiations could emerge early in the negotiating process, particularly if political pressure is kept up. The nuclear states, for example, agreed at the 1995 NPT Review and Extension Conference to a target of 1996 for concluding the CTBT. The most important step is to start the negotiations, which is why the Malaysian resolution to the UN does not mention a timebound framework.
Such an incremental-comprehensive "building block" concept for the NWC negotiations could help to overcome the current crisis of the CD, as it combines concrete visions with pragmatic steps. Ironically, with such a concept the single steps might be easier to realize than with the purely incremental approach.
3. The purpose of drafting a Model Nuclear Weapons Convention
With the mentioned problems and ideas in mind, a consortium of lawyers, scientists, disarmament and arms control experts, and activists have been meeting regularly to discuss and draft a model Nuclear Weapons Convention (13). The principal reason for drafting the NWC is to demonstrate the feasibility of developing a comprehensive phased plan for nuclear disarmament and to promote negotiations toward this goal. The NWC model is designed to contribute to the political climate that will enable concrete measures for the verifiable elimination of nuclear weapons. The drafting process, though comprehensive in scope, should facilitate identification and implementation of essential building blocks toward nuclear abolition.
The process of drafting a model NWC has served to highlight the importance of both the incremental and comprehensive approaches. Previous accomplishments in the areas of arms control and disarmament have provided valuable guidance. The drafters have drawn on the negotiating histories, technical expertise, administrative structures and verification regimes of the START and INF treaties, the Chemical Weapons Convention, regional Nuclear Weapon Free Zones, the Comprehensive Test Ban Treaty, the Security Council resolutions and IAEA plans for the monitoring and verification of the cessation of nuclear activities in Iraq, and IAEA safeguard agreements. These instruments themselves as well as the political climate that brought them about are essential for the development of a Nuclear Weapons Convention. At the same time, none of the regimes cited above, nor the combination of them, necessarily paves the way for elimination of nuclear weapons.
The drafters of the model NWC are convinced that the complexity of eliminating nuclear weapons requires coordination across state boundaries, political bodies, and various industries. This level of coordination demands a concerted collaboration with a clearly articulated goal. The process of drafting the NWC reveals what policies and practices, such as reprocessing of plutonium, might be inconsistent with the ultimate goal of nuclear abolition. Practices which might facilitate this goal include societal verification and collective compliance measures across states and industries. Moreover, clandestine nuclear efforts are less likely to succeed within a regime that invites and rewards global non-discriminatory participation.
The Canberra Commission on the Elimination of Nuclear Weapons has stated that, "Before states agree to eliminate nuclear weapons they will require a high level of confidence that verification arrangements would detect promptly any attempt to cheat the disarmament process...." The NWC would have verification provisions at the international, regional, national and local levels as a means of building confidence and assuring states of these provisions from the moment they are asked to make a commitment toward nuclear disarmament. Admittedly, no verification regime can be entirely foolproof, but this fact does not justify dismissing attempts to develop a strong system for verification (14). On the contrary, working on a comprehensive NWC provides an opportunity to identify and address the problem areas and gaps in current technical resources and capacities and also provides the most effective guarantee against breakout.
4. The Drafting Process
The NWC drafting committee was formed in February of 1996 and held its third meeting in October of this year. The current working draft comprises approximately 60 pages, with an additional 50 pages of annexes and protocols. At its meetings, the committee generally discusses major policy considerations and reviews previous draft provisions. Committee members with expertise in a particular area undertake to prepare draft provisions in that area. Between meetings, a group of drafters in New York incorporates the committee's decisions and the written submissions that other members might provide and consults regularly with the INESAP participants who provide scientific advice.
The general obligations of the model NWC include an undertaking not to develop, produce, otherwise acquire, stockpile or retain nuclear weapons, nor to transfer them to anyone; not to engage in or permit any nuclear weapons research, development or testing; not to use or threaten to use nuclear weapons; not to engage in preparations for such use; not to produce the material for nuclear weapons; and not to assist, encourage, or induce anyone to engage in prohibited activities. States Parties also undertake to destroy their nuclear weapons; to destroy or convert their nuclear weapon production and command and control facilities; to destroy or convert their nuclear weapons delivery vehicles; and to place special nuclear (fissionable and fusionable) material, as specified in the treaty, under international control.
An agency modelled after the Chemical Weapons Convention's Organization for the Prohibition of Chemical Weapons will ensure implementation of the NWC. The Agency will oversee verification and compliance and provide a forum for consultation, cooperation and dispute resolution between States Parties.
A Registry would maintain records of all nuclear warheads, all delivery vehicles, all nuclear facilities subject to verification and all special nuclear materials. An International Monitoring System would comprise facilities and systems for monitoring by satellite, fixed on-site sensors, remote sensors, radionuclide sampling, communication channels, and other systems to be developed as necessary. The NWC also includes provisions for systematic and challenge on-site inspections as well as societal verification.
The proposed timeframe - subject to debate as discussed above - presents a phased plan for elimination of nuclear weapons. The drafters of the model NWC have opted for moderate time periods for implementation of each phase of the elimination of nuclear weapons with a provision for an extension if keeping to the schedule becomes technically impossible. This is the approach of the Chemical Weapons Convention. States Parties are required shortly after entry into force of the NWC to submit to the Agency declarations regarding their nuclear weapons, special nuclear material, storage facilities, production facilities, reprocessing plants and delivery systems. Other relatively immediate measures include taking nuclear weapons off alert status, removing them from deployment, closing down test sites, halting reprocessing of plutonium and production of highly enriched uranium. Subsequent measures include removal of warheads from delivery vehicles and dismantling them or placing them in monitored storage, disabling all nuclear weapons, and closing or converting nuclear weapons research facilities. The timeframe also outlines phased reductions in the stockpiles of existing weapons, taking into account discrepancies in the relative quantities among states.
States Parties are to formulate plans, in consultation with the Agency, for their own implementation of the NWC, including the establishment of a National Authority and adoption of national legislation. The NWC also outlines the rights and responsibilities of natural and legal (e.g., corporate) persons by defining crimes for which there will be individual responsibility, declaring a responsibility to report crimes under the NWC, and providing for the protection of persons reporting information.
Other articles in the model NWC address consultation, cooperation and factfinding; nuclear activities not prohibited under the NWC; assistance and protection against threat or use of nuclear weapons; compliance and sanctions; settlements of disputes; amendments; financing; annexes regarding verification measures; and protocols for compulsory settlement of disputes and energy assistance. The option favored by the drafting committee does not allow withdrawal from the NWC. Entry into force of the NWC raises questions regarding the relative merits of entry into force through ratification by a fixed number of states and entry into force upon ratification by all nuclear capable states. It was decided to include two different draft provisions along these lines, together with a waiver clause that permits states to implement the NWC upon signature, rather than wait for entry into force.
The NWC drafters are currently concentrating on developing and strengthening the verification provisions. The complexity of designing an effective verification system that covers all aspects of nuclear weapons elimination - from the mining of fissile material to the dismantling of delivery systems - makes this one of the most challenging parts of the NWC. On the other hand, the process of outlining a verifiable plan for the elimination of nuclear weapons will give credibility to the vision of a nuclear weapons free world and ease the adoption of essential steps toward this goal.
Published in: INESAP Information Bulletin No. 11
Notes:
- Establishment of a commission to deal with the problems raised by the discovery of atomic energy, G.A. Res. 1, 1(1) U.N. GAOR at 9, U.N. Doc. A/64 (1946) unanimous.
- G.A. Resolution 50/70 P, Nuclear Disarmament, Adopted 12 December 1995. 106 in favour, 39 against, 17 abstaining.
- Resolution 51/45 O, "Nuclear Disarmament", adopted on Dec 10, 1996 by 110 in favour, 39 against, 20 abstentions.
- See U.N. Document A/C.1/51/12 of 24 Oct. 1996.
- Resolution 51/46 D, "Convention on the Prohibition of the Use of Nuclear Weapons". Adopted on December 10, 1996, by 114 in favour, 31 against, 27 abstentions.
- Resolution 51/45 M, "International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons." Adopted on December 10, 1996, by 115 in favour, 22 against and 32 abstentions.
- The Canberra Commission on the Elimination of Nuclear Weapons, Report Aug.14, 1996.
- M. Krepon, Concrete Measures Toward Nuclear Disarmament, INESAP Information Bulletin No. 10, August 1996, pp. 41-43.
- Lawyers' Committee on Nuclear Policy, Statement of Purpose, Draft Preamble and Outline for a Model Nuclear Weapons Convention, 1996.
- On the CD crisis see R. Johnson, The CD: Crisis and Opportunity, Disarmament Diplomacy, No. 08, September 1996; R. Johnson, First Committee Analysis: Calm before the Storm?, 29 November, 1996.
- See J. Scheffran, W. Liebert, Why Negotiations on a Nuclear Weapons Convention Are Needed, INESAP Information Bulletin, No.8, February 1996, p.32; J. Scheffran, Putting Together the Puzzle of a Nuclear-Weapons-Free World: Agenda for the abolition of nuclear weapons within the framework of negotiations on a Nuclear Weapons Convention, INESAP Information Bulletin, No. 10, August 1996, p.48. The path towards a nuclear-weapon-free world is analyzed in more detail in: Beyond the NPT: A Nuclear-Weapon-Free World, Report of the INESAP Study Group, New York/Darmstadt, April 1995.
- Programme of Action for the Elimination of Nuclear Weapons, presented by Egypt to the Conference on Disarmament on 8 August 1996, on behalf of the 29 delegations members of the Group of 21, INESAP Information Bulletin No.10, August 1996, p. 47.
- See previous progress reports by J. Scheffran, INESAP Bulletin No. 9, pp. 37-38 and A. Ware, INESAP Bulletin No. 10, p. 49.
- For a discussion of the feasibility of verifying nuclear disarmament, see S. Fetter, Verifying Nuclear Disarmament: Pragmatic Steps Toward Ideal Objectives (Henry L. Stimson Center Occasional Paper No. 29, October 1996); and J. Rotblat, J. Steinberger, B. Udgaonkar (eds.), A Nuclear-Weapon-Free World: Desirable? Feasible?, Boulder et al.: Westview Press, 1993.
