Banning the Bomb III: Subsection A

Beatrice Fihn 0:01

They're a little bit like gas. They will fill the space they're given.

Andrea Berger 0:08

You're listening to the Arms Control Wonk podcast, the leading podcast on arms control, disarmament, and nonproliferation. My name's Andrea Berger, and I'm a senior research associate at the Middlebury Institute of International Studies at Monterey. And I'm joined today by two other ladies that have been really closely involved in negotiations over a nuclear weapons ban. One of them is my colleague Gaukhar Mukhatzhanova, who's in our Vienna office.

And the other is Beatrice Fihn from the International Campaign to Abolish Nuclear Weapons. Thanks both for joining me. Thanks for having us. So for those of you who haven't been following this issue closely, a brief recap. This is our third podcast on the nuclear weapons ban. And the General Assembly at the UN last year negotiated basically a mandate that To start discussions on a treaty that would be legally binding and that would prohibit nuclear weapons.

They did that in complete opposition to the views of the countries that have nuclear weapons and most of the countries that rely on them for deterrence purposes. So NATO countries, US allies in East Asia. The Netherlands was the only country that really stayed in the process throughout this. But negotiations started at the UN on this treaty in March.

There were discussions for a week, and there's a separate podcast we did on that subject. And we reconvened the podcast to talk about a draft that was circulated a few months later. That draft was the focus of the conversation when negotiations resumed in mid-June and continued until the 7th of July. And All three of us were there for some part of it.

And there's a treaty. So on the 7th of July, the conference that was negotiating this treaty concluded their efforts. And there were 122 votes in favor, one vote against, which was the Netherlands, and one abstention, which was Singapore. So treaty is going to be open for signature on 20th of September. And it'll enter into force when 50 countries ratify.

So we're going to talk about all that today because there's been a whole lot going on and we'll cover a little bit about our general observations on what the negotiations were like in June and July, how we got the text that we did, especially because it looks pretty different than the text that Jeffrey and I talked about on our last podcast.

And we'll end a little bit with the what's next kind of question. So lots to cover. Let's kick off with a brief discussion on the process and what negotiations were like. And Beatrice, I'm going to bug you first on this because you were there from more of the beginning of the process in June. And so I'd love to hear your reflections in particular on what you thought the atmosphere was like, how the beginning of the process went when we all reconvened to negotiate the treaty after a A two-month break.

What were your kind of views on how that proceeded?

Beatrice 3:34

Yeah, thanks, Andrea, for having me. I'm really happy to be a part of it. I'm a big fan of this podcast, so excited to be here. Yeah, I mean, it's not so often that you get to gather with over 130 countries to negotiate a treaty. So it was pretty exciting, of course. I think the conference in March was obviously more of a general meeting The kind of conference we're used to at the UN where people just give their positions and, you know, then you go home.

So this was a bit of a different scenario. I think the Apple CFA was really great, both in March and now in the summer. It's, for a change, I mean, compared to other like MPT meetings or things like that, you know, it was quite nice to be in a room where everyone wants a really strong treaty. Everyone wanted a strong text and a good text.

I mean, obviously there's different views on what that, Looks like. But I think there was a really, it was a nice positive atmosphere, and one that you can really work with. And I remember feeling very strongly after the first week that if we don't succeed here, it's not going to be because of states didn't want to, it's going to be something we messed up in that way.

So that also put obviously a lot of pressure on everyone, I think, but I think it was it was just in general, like a nice atmosphere. But at the same time, of course, it's a multilateral negotiations. It's going to be challenging. And I think that a lot of critics of this process still don't really grasp, and especially those that haven't participated in any of these meetings, that this, even without the nuclear arm states participating, this is like 130 states, all with very different views on the issue, different priorities, different red lines, and a whole bunch of national dynamics that take place in each country.

There's a tendency to lump in all Latin American, African, Asian states as the same. But I think it's very obvious in these kind of negotiations that you have 130 different red lines, in a way, and 130 different priorities. And with or without the new ground states, it's not easy to get agreement with that many countries. And of course, a lot of very strong-minded individuals.

I mean, this is an issue where people have worked on for a long time. And I think that that was quite... Obvious throughout the whole negotiations that this is a lot of sort of individual people in this process that had a very strong mind on what they wanted and how they wanted to see that. So that obviously has an impact on the negotiations.

Andrea 6:08

You're right. People felt really invested in the initiative, I think. And so you saw a lot of that and strong preference coming out in terms of substance, but also in terms of process. When you came in the first week, what was the structure of the discussions like? Was there a bit of rehashing what had happened in March with that general expression of viewpoints?

Or how did it go? Was it much more focused, kind of pointing to different parts of the draft treaty because we had a draft by that stage?

Beatrice 6:40

Yeah, I mean, everyone came prepared with points on the draft and she had circulated a calendar or an agenda that she was going to go through kind of article by article, paragraph by paragraph. On the, on the different text which is always difficult. So she, she aimed to not have general statements, but governments love their general statements. So some people listened, other didn't. it was a little bit of confusion, confusion in the beginning because I think the first day some, some just dived in straight into sort of, we want to change this word to that word whereas some people did more general opening remarks on, on kind of.

How they saw the first draft. But I think quite quickly it became kind of a paragraph by paragraph. The preamble took a long time and then it sort of sped up a little bit. We got into the prohibitions, article two to five, the victim assistance issue, and just kind of, she had a first read through basically of the text and got all the views on that.

And after that, of course, the first sort of seven days, I think that took like five days or something. And then there was some more discussions about certain specific issues and And then she went to produce her second draft.

Andrea 7:47

Gaukhar, I'm going to turn to you. That's a great point to jump over to how the process of revising the actual text went and particularly the shift kind of midway through that second negotiating conference to the working group system. Do you want to talk a little bit about that? Yes, sure.

Gaukhar Mukhatzhanova 8:07

First of all, thanks for having me again. It's always fun to be on the podcast. And the topic is fascinating, of course, because the negotiations, it was the first real, real negotiation that I was a part of. And that was really something to behold. And as Beatrice said, after the States really exhausted the opportunities to go over the text, in general, the time came for the second draft.

And about that time, The president designated several working groups to address specific issues and specific articles of the draft text. And so you had pretty much parallel small groups, negotiations going on in different rooms at the United Nations. There was an Article 1 group, and I think that one met the most times. Another group was... Going over Article 2 to 5, and that's the safeguards provisions and accession of nuclear-armed states.

That was definitely the most technical negotiation. That group worked really hard. A separate group on Article 6 to 8, dealing with victim assistance and environmental remediation. And then another group was dealing with the rest of the text from Article 9 until Article 21, And I think there the two biggest issues were Article 9 itself, and that's the mandate of the meetings of states parties, and Article 18, which I think in the final text is now Article 17, about the relationship between this ban treaty and all the other instruments.

Andrea 9:51

This is a good time for me to remind listeners that if you don't have it open while we're talking, it's probably going to be a real help if you have a copy of the treaty with you so that when we say Article 1, you know what we're talking about. You can find that treaty probably most easy at the Reaching Critical Will website.

They've got a whole page with all the documents that And successive drafts that were worked through. So it's really useful reference material there to help you through our discussion here. One of the things that struck me when I came in for the final week, which was kind of the tail end of that working group system, was the fact that there still seemed to be a bit of confusion over what was going to happen with the working groups.

And even just the things of what exactly they were going to cover If they renegotiated parts of the text that they were responsible for, how was that going to be incorporated into the draft? Did the president of the conference intend to just kind of import it straightforwardly into the text? Or was the chair's team going to revise things a little bit further?

It didn't seem like there was a whole lot of clarity over that point. And I wonder if you guys got the same impression when you were in the midst of it. Well,

Gaukhar 11:11

Some of the working groups were able to agree on their text by consensus, basically within the group. And as such, that text was given to the president. And I think the expectation in that particular group was that the text would be incorporated into the revised draft as is, seeing as there was an agreement within the group. Other groups were not able to reach such an agreement.

And so the chairs had to make a decision at some point that this is it. We are out of time. And the president gave us Certain deadline. And by this deadline, this is the best we could do. And this is the text we're going to give to the president with probably an understanding that more changes could be done to it.

But you're right in the sense that there was not a unified understanding of how exactly the process will go once all the groups concluded their work. And there was some feeling that some of the working groups might reconvene in the last Week of the negotiations to continue hammering out the text that they were not able to complete the previous week.

And some groups met for a little bit. But then what happened in the end is the president took the text, maybe made some changes here and there, and presented the third draft, which essentially became the final draft of the treaty.

Beatrice 12:34

Just to add a couple of points there. I mean, I think that She was quite clear in March, and I don't know if she said it in public, but at least in conversations with us, that she didn't really want to break out in small groups, mostly out of respect for smaller delegations that do not have the capacity to cover three simultaneous meetings.

I think after the second draft, which we were a bit disappointed to see, to be honest, from my side, it didn't really... It missed some things that we felt had agreement in the room. So I think that after that second draft, there was a strong push from governments that we need to move faster. We need to move a bit more effective.

We need to focus on the issues where we, you know, Article 1, Article 2 to 5, victim assistance. We need to pull those out and work faster. More specifically on them. So I think that that's why the kind of slight confusion came for, because it wasn't an outspoken strategy from the beginning to set up these groups, but it sort of had to be done midway through the conference.

I think that's just, it's normal. I mean, you have to be reactive and respond to the needs of the room as a president. I think that perhaps it could have been a little bit clearer what the expectations were on those groups, but I'm not sure that that was completely clear to anyone really.

Andrea 13:54

And the overarching factor here was that there was a strong sense of time pressure on this process. The General Assembly had said, you need to make your best effort to finish this all off by the 7th of July. And it seems like the president really kind of took that seriously. And towards the end, as major revisions were still being made in the working group process right up until the last few days of the negotiating conference, there's this feeling that actually, at least it seemed from the president, that she's got to draw the line somewhere on the process of revision.

Cut it off because otherwise there's going to be nothing by 7th of July. And if there's nothing by 7th of July, then you potentially have to go back to the General Assembly, request mandate extensions, and you might lose kind of the political momentum of countries participating. So there seemed to have been that overarching discussion. Time pressure really weighing on all of this.

And that created on the last few days of the conference some really fascinating kind of dynamics.

Gaukhar 15:07

I'd say it was a strong pressure from the states themselves to finish the negotiations this year. The General Assembly resolution, as far as I remember, said that the conference has to come back and report To the next General Assembly session about what was done. But the states themselves, especially the core group, felt that the window of opportunity was closing and that it was important not to drag out the negotiations and not to go back to the General Assembly for the extension of mandate.

And Beatrice can add on this, but I think it was also a strong feeling among the civil society that the negotiations should be completed this year.

Andrea 15:48

That's very true. I think you're absolutely right to note that there was a

Beatrice 15:52

Big coalition of states that wanted this as well. Yeah, I think it's, it's, I mean, in one way I think diplomacy and diplomats, they're a little bit like gas. They will fill the space they're given, and it's just sort of there will always, in any negotiations, they will always be like, oh my god, we don't have enough time, oh no, this is disaster everything is chaos, nobody knows, and the president, everyone hates the president, until it's adopted that everyone likes it again.

So I think it's also general sort of negotiations dynamics where you have to have some kind of time pressure in order to get to agreement. Otherwise, governments can take what we know, like decades sometimes. But obviously, I think that there is a concern that wasn't there last year when the resolution was written and adopted. And it's that we have a U.S. government that not only is hostile to this process, But also potentially very hostile to the entire UN system and the entire UN budget.

So I think that there was obviously a concern that they didn't want to go back to the General Assembly with the Trump administration already threatening to cut serious budgets and ask for more money for a process that the US opposed. I think that the Obama administration obviously objected to this proposal These negotiations, but we couldn't really see the Obama administration cut the world food program as a punishment for this.

Whereas with this administration, who knows really what would happen. So I think that there was always this turn of that, that just put everything in a new context. So it felt very strongly for us is that we don't know what will happen in October at all. So we better make it. And I think that there was no reason why governments shouldn't be able to make it at this point, because the rule, the will was there in the room.

Andrea 17:46

I remember, I think it was on the Monday evening when we reconvened, the Algerian delegate, I think, put up his placard and said, we should really consider because, you know, there's still a lot of substance to work through. We should consider. Extending the conference and continuing negotiations after the 7th of July. And I think he probably nearly got lynched for that suggestion.

It didn't go down very well and was shut down quite quickly. But yeah, as we're saying, there was this momentum to get things done by the end of the 7th of July. And we, we, Had a break on the 4th of July, of course, for U.S. holiday. States could send the draft, what became the final draft, back to Capitol for comment.

And then... To bring in North Korea here. North Korea decides to test an ICBM on that holiday and we come back and all of a sudden there's a huge amount of attention to the process because you've got this contrast of North Korea testing nuclear weapons while a group of 120 countries You know, moving to ban them. And I found it really interesting to listen to all the media and public reaction over that, where there was confusion from some, and you actually saw both kind of camps on the ban issue, those in support of a ban and those opposed to a ban, both using the North Korea example to justify their position.

And And I thought that was really interesting to watch play out as well, kind of just in the surrounding discussion outside of the chamber.

Beatrice 19:34

Yeah, I think that's really, I mean, that was really interesting. Of course, we get a lot of criticism constantly that this treaty is not going to solve North Korea. Sure, it wasn't developed as a response to North Korea specifically either. But What is solving the North Korean problems? Clearly, 14,000 nuclear weapons isn't solving North Korea either. The current efforts that are going on isn't solving North Korea.

The Security Council resolutions aren't solving the North Korean problems. So I feel like it's a bit unfair to put that kind of issue on this treaty. But what I do know and what I feel very strongly is that North Korea is a state that is developing nuclear weapons in order to threaten other countries with Mass murdering their civilians in cities.

That should be illegal, right?

Andrea 20:24

To be fair, it is already illegal under UN Security Council resolutions.

Beatrice 20:28

But only for North Korea. But only for North Korea. Totally fine for everyone else.

Gaukhar 20:34

Sam, as far as North Korea goes, and speaking of the UN Security Council, as a response to the ICBM test, there was a Security Council meeting on Wednesday, That's right. After the 4th of July. So right at the same time as the ban negotiations were drawing to their end. And it was an interesting contrast to observe the discussions in the UN Security Council and in the negotiation chambers.

Because there you had sort of the interplay of US, Russia and China focusing not even so much on how to solve North Korea, but sort of mutually blaming each other for taking the wrong approaches. And deploying systems that are destabilizing and really provoking further nuclear developments on the peninsula. So that's sort of to complement Beatrice's point that what we have right now doesn't seem to be solving the North Korean issue.

Andrea 21:31

And while that meeting was ongoing, it was the final kind of substantive plenary meeting on the ban that So I remember texting Gowkar to ask her what was happening in the Security Council while I was sitting in plenary discussions on the ban treaty. And those plenary discussions turned out differently. This is the final Wednesday before the adoption vote was meant to happen on the Friday.

And states had sent stuff to Capitol over the holiday, come back prepared. I think many thought that they would have an opportunity to do at least some further revisions or express themselves. Preference on substance matters still. And actually came back in the room to find that the president wasn't really willing to entertain those unless they were small technical revisions.

So there was this interesting kind of confusion for a time, then brief frustration with, you know, not being able to revise a text that some countries had We're seeing components of for mostly the first time and capitals we're seeing mostly for the first time. And, and actually there was just a decision taken that this is the closest we can get to agreement on all of these areas.

And if we want to finish by Friday, this is what we have. So kind of take it or leave it. And that is how we, Largely in terms of process, got to the actual treaty, which I think we should talk about in a bit more depth and go through what was the significance of major parts of the text that is now going to be put out for signature and ratification.

Let's start with preambles, because they're hella long. And Beatrice, maybe you can explain how they got to be so long.

Beatrice 23:32

Can I just touch on what you said first, sort of the Wednesday coming back? I don't really get the same view that there was sort of a take and leave. I mean, at some point at any negotiations, you have to say enough. Are you ready to adopt this or not? And what I felt she was doing, and rightly so at that point, was to test delegations.

If she moved ahead with this text, would Contis vote no? No. Would they be able to live with this text or not? And I think that if there would have been 15 countries that made a point that, no, actually, this is unacceptable to us, she would have hammered those out overnight, I think. So I think she did what you have to do as a president in the end and push governments and push delegations into...

Really showing, showing their hand in a way. Are you ready to, would you be able to live with this or not? And obviously there was a lot of country, because you heard some countries, they've repeated their talking points from week one. If she would have opened up the text, we would have gone through, we would have had a whole like five hours of talk on transit again, even though it was already like, it's not going to get in, like give it up, because so I think that it's, you know, this is delegations and individuals, like I said, you know, with their kind of, they won't give up until someone forces them. So I think she really just tested it there.

But that wasn't your question. Your question was a preamble. So yeah, it got long. I think that there was, there's a lot of really good additions to it based on the first draft. I think that there was some things missing in the first draft. So I'm happy with that. I mean, the preamble, it's going to be one of those things that it's going to be impossible to take things out because every country is attached to something.

And it's just one of those things that it's easier just to add more than to cut it down. I think there's not a lot of bad stuff in it. I mean, we have an issue, of course, with the right, the inalienable right to nuclear energy. I think that's a bit annoying that that's in there. But otherwise, it's good stuff.

It has the key things. It doesn't really matter, I think, if it's long or not. I'm wondering if the chair or the president, if she was going to make enemies with some countries just to keep it short. I think there was that. Would that be worth it? Probably not.

Andrea 26:00

There seemed to be, as you were saying, an effort to satisfy a lot of the countries who may not have had super strong preferences on some of the core prohibitions, but wanted people Their points recognized somewhere in the treaty and the place in parts that was most appropriate to do that would have been the preambles. The only real grievance, major grievance I detected from the preambles was actually mentioned by the Netherlands in their final dissenting readout when they voted no on the treaty on Friday.

And that was in relation to some of the language that Talks about the circumstances in which nuclear use would be contrary to international law. And they felt that that was going beyond what the international court of justice said in 1996 and its advisory opinion on the subject and that it was over interpreting or Perhaps just straightforwardly going beyond what was said in 1996.

And that was quite interesting because I think there were a number of countries that publicly acknowledged that that's exactly what they were doing because they wanted to strengthen the norms that this treaty could build, whereas the Netherlands thought that's legally inappropriate to do. So that was really the only main contention I detected over the preambles.

Beatrice 27:27

I mean, I think that that's a bit of a strange issue because obviously the court interprets the law, right? So the court interpreted existing law and now we create a new law. So if you create new law, you can put whatever you want in a way. I mean, if you're not happy with the court ruling as states or as a government nationally, like you create law, stronger law, for example.

So I think that that's, I mean, obviously they feel very attached to this idea of certain circumstances, right? Extreme circumstances which they are uncomfortable with removing, because that is, that is removing the reason for nuclear weapons, the deterrence issue. So I think that, that's what it comes down to, their, their objections to the whole treaty. It's very much funded on the, on the, the idea that they don't really want to ban nuclear weapons, and they have at this point. Yeah, indeed. Galkar, did you want to come in here? well, in terms.

Gaukhar 28:26

To respond a little bit to Beatrice, I think I understand the Dutch point here because the preamble says that it reaffirms the concept or the fact that any use of nuclear weapons would be contrary.

Andrea 28:40

That's right.

Gaukhar 28:41

Or considers that any use of nuclear weapons. And so that creates a little bit of ambiguity that there is already the recognition in international law that any use would be contrary to international law principles. Again, it's a major difference of views, I think, between the Netherlands and most of the other countries that were involved in the negotiations.

I think people will, I'm sure, go over this and criticize the treaty for going beyond the ICJ ruling. But the ICJ itself was wishy-washy on some points regarding the legality of use of nuclear weapons. People on the one side like to point out that it didn't find that any use of nuclear weapons would be illegal, but... You can also look at the other side and say that even in the extreme circumstances of self-defense, the court wasn't able to conclude whether it would be legal or not.

Andrea 29:35

Exactly. Let's continue just in the interest of time. Let's fly through some of the other main points from the treaty. And Gaukhar, Article 1, which is the core prohibitions, which is basically what the treaty forbids state parties from doing. Is one that actually changed more than I thought it might over the course of negotiations. And there's a few bits that are noteworthy in what changed.

So testing is one. That was not in the original draft in the same fashion that's there now in revisions. It went through a stage of having its own kind of sub-point in Article 1, which used language from the Comprehensive Test Ban Treaty to say that nuclear explosions in effect were prohibited.

Gaukhar 30:32

There was a good deal of debates on the testing in the working group dealing with Article 1. There is a camp of countries that felt strongly about not undermining the CTBT, and those feelings ranged from let's not include testing at all because we already have a treaty that prohibits testing, to the willingness to accommodate language that repeats the language from the CTBT.

Some countries would have liked to mention CTBT in particular in there, but that wasn't possible to achieve. And then others, on the other hand, wanted not only to prohibit testing in general, but also wanted to sort of fix what they see as a loophole in the CTBT and broaden the prohibition to include things like subcritical testing and computer simulations.

And so those countries wanted formulations such as all forms of nuclear testing. And I think the compromise that the president came up with is to simply say test and move it into the general prohibition's Without either calling it all forms of testing or using the CTBT language.

Andrea 31:40

So now the article reads, each state party undertakes never under any circumstances to develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices. And by putting tests there, you in effect allow the countries who wanted to have that more expansive interpretation to For their own country, read that in to the meaning of test, because test is not specified as just being about explosions in this formulation.

And some countries found that to be not very palatable. Those are those countries that wanted it either out completely or in its formulation that was more compatible with the CTBT. But what What I found interesting was on one of the last days of substantive discussion, how many countries tried to say in their statements that they understood the general agreement of the conference was that the word test also included subcritical computer simulations, et cetera.

And no one was really challenging that until Del Higgy, who is the head of delegation for New Zealand and Who I believe has a law background, said, hold on, that may be your interpretation, but don't say that that's the view of the conference. Because if that had just kind of been left alone, then actually someone could have looked back at the negotiating record and say, oh, that was maybe the general agreement of the conference.

So that was an interesting brief interaction that happened on one of the last days, but which could have had much wider consequences if it had been unaddressed.

Beatrice 33:23

I mean, I think that the discussion on tests and also threatened to use in a way, I mean, it just shows how hard it is for anyone involved in nuclear weapons to stay focused on the real issue. I mean, it very easily drifts into some kind of theoretical debate. There is no question in the international community that you cannot test nuclear weapons.

I mean, North Korea does it, of course, but I think that Debating endlessly what does this mean, what does it not mean. It's sort of the treaty is clear. If you can't have nuclear weapons, I mean, with or without test mentioned specifically, you, you can't test, because you have the CTBT, and test is also included in development. You haven't met some Republicans in Congress, clearly. Yeah, okay, of course. But I think it's just sort of, it's, it's this kind of.

I think it's a habit also of the individuals that are involved in this to just get a bit obsessed with certain terms. We had a lot of discussions about stockpiling or possession or, you know, all these kind of things. What does it actually mean? And it actually means pretty much the same thing. You know, some countries have slightly different definitions.

Some countries don't. The legal commentary on, for example, the cluster munitions negotiations and also the landmines negotiations shows that these terms are used interchangeable. And when it comes down to it, we need to look at what do governments do and what do they don't do? And what is this? So we need to test this thing rather than argue in a conference room exactly how to define it when it's not even being tested yet.

So I think a lot of these conversations took a lot of time and perhaps didn't give much I mean, having tests there, does it really increase any strength of the treaty or not? I don't really, personally, I don't think so.

Gaukhar 35:16

Especially reinterpreting the testing, I thought that wasn't helpful. Because right now, a lot of the grumbling about subcritical testing and computer simulations is because those are used to modernize nuclear weapons without explosive testing. But this is done in a world where we do have 14,000 warheads and nuclear weapons are not prohibited. If you're drafting a treaty that generally prohibits possession of nuclear weapons, grumbling and complaining over whether or not subcritical tests and simulations are prohibited, I think it's really going into unnecessary detail.

I agree with Beatrice on that particular point.

Beatrice 35:53

Exactly. I mean, I think this is also maybe a habit of people to try to Use this treaty to fix things in the NPT, which I don't think it should be. I think it needs to stand on its own. People forget that it prohibits nuclear weapons, just like Walker said. And if you can't have them, if you can't use them, if you can't develop them, then if you do a computer simulation, if you do a nuke map, is that going to be legal?

I mean, come on.

Andrea 36:23

Guys, I'm going to quickly jump in here because our beloved podcast overlord, Scott, has rightly realized that we talk for way too long. So rather than making our listeners listen to one really, really long podcast, we are instead going to make them listen to two shorter podcasts that come out to the same length. So tune back in on Friday, where we continue our conversation over what's in the nuclear weapons and treaty text and give you some of the gossip from negotiations.

Thanks for listening.