Banning the Bomb III: Subsection B

Gaukhar Mukhatzhanova 0:02

Spending hours and hours in a dark room in the basement of the UN building.

Andrea Berger 0:10

You're listening to the Arms Control Wong podcast, the leading podcast on arms control, disarmament, and nonproliferation. My name is Andrea Berger, and I'm a senior research associate at the Middlebury Institute of International Studies at Monterey. And I'm joined by my colleague Gaukhar Mukhatzhanova and Beatrice Fihn from the International Campaign to Abolish Nuclear Weapons. We've been chatting about the nuclear weapons ban treaty that was just adopted in a UN conference on the 7th of July, which is a super interesting development, both for those of us who work in the nuclear weapons field and for international relations generally.

We decided, because we had a heck of a lot to say, to split this episode actually into two. So if you haven't listened to our last episode... Go and tune into that one. And we're going to continue on our conversation today from where we left off. So jumping right back in. I think I get the sense that part of the reason these types of things were talking points is because it's a question over what sort of norm you're trying to advance.

How specific is the norm you're trying to advance? And countries had different views over that. And my sense is also that The point you raised of countries trying to fix things in the NPT is probably one that holds true for some as well, because the NPT had ambiguities that people are frustrated with. And so they came in trying to not have significant ambiguities that might lead people to be frustrated.

I got the sense that both dynamics were there depending on who you were talking with. But transit and threat of use were two other ones that were Somewhat controversial. One is in the final text and one is not. Gaukhar, what happened with transit?

Gaukhar 1:58

Lots and lots and lots of discussions happened on transit, on why to include it and why not to include it. And transit issue was splitting the nuclear weapon free zones parties with some countries pushing very hard for the inclusion of transit and others being much more cautious about it. On the grounds that it's hard to implement, it's hard to verify, and generally should be either read into the systems or just left to national implementation or dealt with the way it's been dealt with in the nuclear weapon-free zones.

And that was, for example, Singapore's position and some others. Nuclear weapon-free zones, not a single one of them prohibits transit explicitly. In some of the zones, leave that right to allow or prohibit transit To the state's party's individual decisions. And in the end, the president judged that there was not sufficient agreement in the room to have transit included specifically.

And that led countries like Ecuador, for example, as you mentioned, state at the last session of the conference that they believe that transit prohibition is included in assistance. And it's something that provoked reactions from, for example, New Zealand saying, well, let's not speak for the entire conference here.

Andrea 3:21

That's right. And that is an issue where countries were talking about whether it was necessary Technically feasible to have sight of fully of what was moving through your country. So there's a question kind of merging into export and import control space. And there was the political question that went with that as well in terms of having to potentially solicit declarations from nuclear weapon states that were participating with you in joint exercises or something that you didn't have nuclear weapons on, on board a vessel and, That was something that the US would not be willing to do, and therefore countries were considerate of that in framing their views on the transit issue.

Beatrice Fihn 4:10

I think from ICANN's side, I think we're pretty confident that the general prohibition, the fact that this treaty prohibits nuclear weapons, gives us an adequate legal tool to challenge states' behavior on a national level. If they would say, yes, welcome in with your nuclear weapons into our port, for example, I think that we have enough in this treaty, with or without transit, to challenge that on a national level.

So I think it's, again, I think that it's hard in a negotiations because people are so focused and so, you know, obviously and rightly so focused on words. But at the end of the day, we also need to take a step back, especially for us in civil society who use this as advocacy point, like as a tool.

To do advocacy, to really focus. The more we put in, it's not always better. I think we needed to keep focus on what was really important to us, the prohibition on nuclear weapons, the fact that that is, and how do we use that nationally to change behavior.

Andrea 5:16

Speaking of things that were important, Gaukhar, you had a lot of thoughts on previous iterations of the safeguards provisions in the treaty. So reactions to what is now in the text, because it's pretty significantly different than what was in the first versions.

Gaukhar 5:34

Yeah, so the safeguards provisions together with provisions on the accession of states that have nuclear weapons or previously had nuclear weapons. So that was the cluster of articles from two to five. And article five didn't make it through the negotiations. So that became articles two to four. And There, a lot of debate took place. The articles, by their nature, are quite technical.

But here, I think, is where we felt the most the absence of a number of countries with significant technical expertise on verification issues. And let me use this moment to register my disappointment that the International Atomic Energy Agency was not present in the negotiations and wasn't able to send a legal report Safeguards expert to provide legal advice during the negotiations. I think that would have been very, very helpful, but there was some not, not so pretty politics involved here in Vienna that resulted in the IA not sending anyone. So we went from the initial draft that said states that never had nuclear weapons don't have nuclear weapons have to conclude, or actually it's just that all states have to conclude.

Safeguards agreement in Cirque 153 which is now known as the comprehensive safeguards agreement and then in the second draft even that disappeared and it simply said that states have to maintain whatever safeguards obligations they have at the time of the entry into force of the treaty for them and that was done in response to the criticism that in Cirque 153 is just a very low level requirement and the It didn't repeat even the text of the NPT, which arguably allows for reinterpretation over time of what the agency's safeguard system includes.

And so there's a lot of debate over whether or not the additional protocol, which gives the IA more tools to verify the absence of undeclared materials and facilities, is the verification standard together with comprehensive safeguards under the NPT. So following that kind of criticism, I think they tried to look for a formula that would say that if you already have a higher standard of safeguards in place, then you should keep that without prejudice to some other higher standard that you may adopt in the future.

But that failed to establish what the minimum standard would be. And in the final draft, We go back to Cirque 153, unfortunately, after spending hours and hours in a dark room in the basement of the UN building. And that reflects a very strong position of a few countries. And that, I thought, was an interesting dynamic. Because countries that did want the inclusion of the Additional Protocol, or at the very least a reference to the sort of aspirational reference to a higher standard to be adopted in the future, I think they didn't fight as strong for that preference as did the countries that absolutely did not want the inclusion of the Additional Protocol and didn't want a reference to a higher standard.

And so they watered that language down to additional relevant instruments that may be adopted in the future. During the negotiations, they agreed to just refer to Comprehensive Safeguards Agreement, and that got fixed because, again, it's not in and of itself a legal term. So we ended up again with a reference specifically to InfoCirc 153. Right now, this, I think, is one of the major points of criticism from those who did not participate in the negotiations, saying that this text lowers the existing standards, which it doesn't in and of itself because the article still Requires states to have whatever safeguards obligations they already have in place.

So if you have the comprehensive safeguards and the additional protocol in force at the time when you join the prohibition treaty and ratify it, then you have to keep that, at least that. And then in the future, you can also adopt other additional relevant instruments, which hopefully would embody higher verification standards. But then it does not obligate you to adopt the additional protocol if you don't have it.

That is a major drawback because to adequately verify the prohibitions under this treaty, you do need to give the IEA the maximum amount of tools to not only conclude that your declared materials are in peaceful uses, but the IEA should also be able to draw conclusions about the absence of undeclared activities and materials. And right now the IAEA says that they need additional protocol for that.

Andrea 10:31

So we may not have advanced the safeguards discussion much on that front, but there was verification issues that cropped up in the next article as well, which is the framework really to get nuclear weapons possessors on board with the treaty in a hypothetical future scenario. And Originally, in previous podcasts on this subject, you can listen to us talk about the rationale that the president gave for having different pathways that nuclear weapons possessors could use to become part of the treaty.

And there's still multiple pathways in this latest version of the article that they've changed somewhat. There's, in short, a... An option for a country with nuclear weapons to eliminate things on its own and then join the treaty. There's an option for them to express a desire to disarm, join the treaty, and then come up with the approach to disarmament in partnership either with some unspecified competent international authority or with the state's parties.

And then there's a kind of other pathway for Countries who have nuclear weapons stationed on their soil, but where those nuclear weapons are not owned by that state party. So here we're talking about NATO basing states at the moment. So there's three things all in one article. And verification attempts to go alongside each of those things. What were your views on those?

Gaukhar 12:11

The whole issue of disarmament and verification went from Practically non-existent in the pre-negotiation discussions to this protracted technical debate that gave us an article with, what, six paragraphs. And the easier option, I guess, would have been, and I think that was the emphasis in the first draft, to have provisions for verification after states have dismantled nuclear weapons and then joined the treaty.

And then have this sort of vague provision that if a state still has nuclear weapons and wants to join the treaty, then the meeting of state parties can take up that issue. And a dismantlement program with verification can become an additional protocol. But that article was so broadly formulated that a number of countries thought that they needed much more specificity.

And a lot of that specificity migrated into what is now Article 4, and that's how we lost Article 5. And the more states talked about the option of join and then disarm, the more questions, of course, were cropping up. And the major one is the issue of creating a loophole, allowing a state that has nuclear weapons to join a treaty that bans their possession without a set-in-place timetable for disarmament.

Are you allowing a country to join the treaty and sit on its arsenal for X number of years claiming that it's in compliance? And I think that necessitated all this complicated negotiation about whether they submit a plan at the time of joining, whether the plan should be negotiated with the state parties. And of course, having the entire meeting of state parties negotiate the exam and verification seemed too cumbersome.

And that's why we have this Mysterious, competent international authority, which is essentially kicking the can down the road, meaning we will figure out later which authority will designate to engage in those negotiations. It could be simply a subsidiary body of the meeting of state parties. They can create some kind of body consisting of state parties, some state parties, maybe some outside experts, or by then we could have an agreement that the IEA has to be Conducting disarmament verification, then they can designate the IEA, or there could be some other agreement down the road.

So they left it intentionally broad so that we don't confine ourselves right now to just this narrow decision that it has to be meeting with state parties or it has to be the IEA.

Andrea 14:59

A few words, Beatrice, on... Flying past that point quickly, and it's definitely an article that listeners should go and have a read through. I think it's still a little bit messy, but as we said with negotiations, multilateralism is a messy thing in and of itself. But Beatrice, I'd love your thoughts on the victim assistance and international cooperation points, because I know that's one where you were engaged a lot And is it what you wanted?

Was there more you would have liked to see there? How did some of the bits about state responsibility in particular shake out?

Beatrice 15:41

Yeah, I mean, I think it's, I mean, obviously, we spend a lot of time on those issues. This is really fundamental articles for a humanitarian disarmament treaty. I think the tensions between a nuclear weapons treaty and a humanitarian disarmament treaty was quite obvious. And I think that the articles two to four also reflects that quite I mean, also Article 1.

I think that tension between the old nuclear weapons-focused people and the humanitarian disarmament people and viewpoints has made this treaty look the way that it did. I mean, for example, for Article 4, we would have preferred something very simple, but still very much anchored into join, then eliminate, because that's the way we do with weapons, and nuclear weapons don't get an exception here.

But I think that the victim assistance is a real... Victory for us. It's quite unique when it comes to nuclear weapons treaties. I don't think that anyone has that kind of provisions in it, not the CTBT, not the NPT, no reduction agreements, of course. So I think that that's really key for us. And this is also a place where we can do a lot of practical work afterwards.

I think it's very... It's really good. It's strong. We were worried that it would lower the standard for victim assistance from the Cluster Ministers Convention, which was a really landmark treaty on this. But it doesn't. So I think that we're really pleased with that. And I see also that these are articles where you can engage non-state parties in them.

Assisting victims and for example, mine clearance was the way to which the United States engaged in the mine ban treaty. And I think that we have a lot of potential here to work with the Japanese government, work with Australian government, work with governments that want to fund programs on this, for example, to kind of get them talking about this issue and get them to recognize it.

So I'm very, I think this is one of the biggest Victories in the treaty. We were worried that we wouldn't get it in the end. And I think that without ICANN's very consistent campaigning and also the efforts from the Harvard Law Clinic, for example, who did a lot of work on this, I don't think we would have gotten these provisions so good.

Andrea 18:04

I agree with you. I think this is an area in which you really see the civil society Footprint in the negotiating process, because it was one where you really had a coalescing of civil society and advocacy organization views on what those provisions should look like. And so, yeah, it sounds like you'll have plenty there to work with and work on in the next few months.

The last article I wanted to talk about before Doing a bit of a look forward, is Article 18. And that spells out the relationship with other agreements and was pretty highly controversial. Even though the Netherlands was the one country that voted no in the final explanation of vote, there were two others who publicly articulated that they were pretty uncomfortable with the way that this article was left, which is Switzerland and Sweden.

And the article currently reads, the implementation of this treaty shall not prejudice obligations undertaken by states parties with regard to existing international agreements to which they are party, where those obligations are consistent with the treaty. And Netherlands, Switzerland, Sweden seem to read that I think somewhat fairly as subordinating the NPT to the ban treaty because article 18 specifies that it recognizes in effect obligations elsewhere, only where those obligations are consistent with the treaty.

And so you got major reservations being expressed by a handful of countries about the legal Implications or potential legal implications of this article. Gauper, Beatrice, did you have thoughts on that?

Beatrice 20:00

Yeah, I think that it's, I mean, it depends on how you want to read it. And I think it's people's nervousness about the NPT more than the actual legal language. The language is taken from the Arms Trade Treaty. So it's language from another treaty. And I think it's, when we've talked to countries that had concerns about this and asked, which obligations are you worried about?

It's not very easy for them to answer. It's more of a I think that they are worried about a perception that this treaty will sort of overtake the NPT, which I think it's based on states parties. It's just not going to in a way, at least not in the first period. The NPT has near universal membership. It has the five nuclear weapon states on board.

This treaty is not going to somehow replace this without them coming on board to this treaty either. So I think that's a bit of just a kind of a fear that they have. Because if you think about what, I mean, the obligations to safeguards, it's in here. And I think it's, I just want to highlight again what Gawker said, that this treaty does not lower the standard of safeguards from the NPT.

It doesn't increase it, which I'm very sorry that we didn't get. But I mean, if people are willing to take on the, they have about 18 months to get all countries to sign the AP. I mean, they can do that before this treaty enters force, if it's so easy. But I think it's so you don't have safeguard, you can't undermine that.

Nuclear energy is in this treaty as well, you know, unfortunately, according to me, but you know, if countries are worried about that, that's not going to be a problem either. What it does, however, is that the NPT allows five states to have nuclear weapons, and it allows NATO states to be a part of using nuclear weapons and station nuclear weapons on their soil.

This treaty doesn't allow that. And this treaty cannot let that, what they conceive to be a right on the NPT to have that. Override these obligations, and I think that's the key here, because the way it was earlier was just problematic. I could have also preferred it to be deleted immediately, because I mean, law has a way, you know, the later treaty often prevails over the previous one. So I think it would have been fine without even having it at all. Well, I think that exactly is part of what motivated the article in the first place. It's a combination of the, the fear that this would be seen as

Gaukhar 22:17

Overtaking the NPT and in law, yes, the newest treaty does take presence. And then the state's obsession with preserving the inalienable rights to peaceful nuclear energy, and which is why in the earlier renditions of this article, you had reference to rights and obligations under other existing international agreements. And that's where the issue of the nuclear weapon states possessing nuclear weapons and stationing not being prohibited at the NPT came into play.

Once they removed rights, I think that should have stopped being an issue, so they didn't have to add this whole... Last part where those obligations are consistent with the treaty because the obligations under this treaty I think are consistent with the NPT rights is something I think might be open to the debate. States like Sweden and Switzerland I think we're also concerned about the difference in obligations under the CTBT and this treaty.

If testing gets to be interpreted as including Subcritical testing, etc. The CTBT does not have that. So again, the, the whole concern about undermining the CTBT comes again into play. they probably could have lived without this article altogether, but as it is, I think it's, it's not necessarily going to create a terrible problem.. Again, rights was a bit problematic in combination with this being existing international agreements without specific reference to international nonproliferation and disarmament agreements.

So you could potentially cite, I don't know, your security arrangements with other countries that may or may not provide for stationing or use of nuclear weapons. I'm not entirely sure, to be honest, why it has a broader formulation of existing international agreements rather than specifically referring to non-proliferation and disarmament agreements, maybe because of the environmental and victim assistance issues.

Beatrice 24:26

I think it's just, there was a lot of countries that had problems with the first version of this draft, that article. And I think that they tried to play it safe by using the exact formulation from the arms trade treaty. Which many of these states have signed and been okay with in that context. So I think that the language comes from that treaty.

They've used similar language.

Andrea 24:49

Let's quickly look ahead and maybe anticipate what's coming next on this issue. Obviously, there's a signature and ratification process that is going to move forward. 20th of September, I think, is the date in which this is open for signature ratification. And it enters into force shortly after the 50th ratification is given. Estimates? Any guesses on when that might be?

We should take bets.

Beatrice 25:22

I mean, we said within two years we aim for.

Andrea 25:25

I think that's probably reasonable.

Beatrice 25:28

Yeah, we've looked at a couple of how the pace of ratifications from other treaties. It takes some time, of course, for some states. We hope to get a Big number, of course, on the opening week, I guess, because it's going to be a high level week in the UN. So I think it's going to be a little bit spread out specifically, sure, this time. but yeah, so within two years mid 2019, I hope this treaty will have to enforce.

Andrea 25:56

Gaukhar, agree? Within two years?

Gaukhar 25:58

Yeah, I think so. I had a feeling some countries were really hoping or envisioning that this would be enforced by the time of the famed 2018 Nuclear Disarmament Conference that the NAM had been pushing for for several years, but that's probably unrealistic. And we'll see how different countries examine the text, because for some it's probably going to be easier than for others to sign and move on to ratification.

And then there are states that already had concerns with the text, like Sweden and Switzerland, so they will face issues in their parliaments, most likely. And others who would have to examine their existing defense relationships with the United States or other nuclear weapon states. The Republic of Marshall Islands already, at the time of the closing of the conference, Said that they will have to examine some of the agreements they have in place with the United States.

So it's really going to be an interesting process to see how states go about examining what it is they are actually signing up for in detail.

Beatrice 27:00

And I think that that's really an interesting case, Marshall Islands. I saw someone having a Twitter discussion about that, talking about Marshall Island leasing land to the United States for missile tests. I think that was James Acton who pointed that one out, yeah. And like a bit triumphant that, ha ha, look at this. And first of all, yes, we know.

And yes, this treaty will have an impact. I mean, it's a real treaty and it will have an impact even if the nuclear arm states are not a part of it. I don't know what Marshall Islands is going to do. We have campaigners there, a campaigner at least, who will work with governments. But I think that that's, you know, That it's going to be difficult for some countries and that it's going to mean that they have to look over some things and they have to do national legislation.

That is not a bad thing. That is exactly what we wanted with this treaty. I mean, we wanted to make a difference. We wanted to change policies and to somehow undermine the continued existence of nuclear weapons. That's the whole point.

Andrea 28:05

Not to speak for him, but I don't think James meant it triumphantly. I think he was genuinely... Questioning whether or not it had come up and whether the Marshall Islands had expressed a view of what it wanted to do in relation to that. And it is an interesting issue to look at. So one area to watch. The other thing I noted in terms of areas to watch going forward is some of the rhetoric and particularly the choice of language by the US, UK and France.

They issued a joint statement and The UK issued a separate statement that included language that I don't think they've used before, which is so on the UK statement, they said the UK has not taken part in the negotiation of the treaty, does not intend to sign, ratify or become party to it. The treaty will therefore not be binding on the UK.

Furthermore, the UK would not accept any argument that this treaty can constitute a development of customary international law. Binding on the UK or on other non-parties. And that kind of language was mirrored in the joint statement by the US, UK and France as well. They basically said, we're never, ever, ever going to touch this, seriously. And it seems to me that there's a real clear attempt by at least those three countries, and I'm sure Russia and China and others potentially will start to use similar language, To express for legal purposes that they object to this initiative and always have so that they cannot be bound by customary international law.

And whether you think that's an overblown fear or not, I would suspect they're going to continue to use that language often. And that's going to be difficult from a diplomacy and a bridge building perspective to sit through the NPT conversations, potentially first committee at the UN conversations, where We're trying not to prevent countries from going in wildly different directions on nonproliferation and disarmament matters.

Gaukhar 30:10

I think at least the next two years, probably three in the NPT First Committee and other four are going to be decidedly unfun for more reasons than the ban treaty. I'm a little concerned that the prohibition treaty, contentious as the issue might be, Would also get the blame for everything going wrong in the NPT. If you subtract the bad negotiations from the current reality, you still have a complete crisis in US-Russian arms control.

You have modernization, you have North Korea, you have all the other things that are not going well. So I just don't want the NPT discussions to deteriorate into this you ruined everything with your treaty kind of thing.

Andrea 30:59

You're right. There's lots of things that are ruining the 2010 style kind of jubilation that we had when Obama was making Prague speeches and we had New Start and there was sunshine and rainbows, comparatively speaking, in the NPT. It's British weather right now in the NPT.

Beatrice 31:19

Well, I think, I mean, first of all, the NPT has never been fun. I wouldn't say. Well. Sorry. Sorry. Well, it's better than the Conference on Disarmament, at least. That's for sure. But I think it's, yeah, I mean, I was surprised that they came out so strongly saying that they will never sign this treaty. I mean, or they don't see that they will sign this treaty.

Obviously, it's democratic countries that will have to do what the elected governments tell them to do in the end. And we've seen rapid changes in policy. Politics and leadership, who knows what will happen in 5, 10, 15 years. So I wouldn't rule out that that will change the tone. Of course, I see also that they are trying to prevent any kind of customary law from being established.

Go for that. We've never actually claimed that this would be customary law. Anyone who has a law degree knows that the bar is pretty high for that, and this treaty does not. Will not meet those requirements anytime soon. But it doesn't mean that it can't create a norm and it can't impact government's behavior, which is just really what we want to.

So I think it's also early days. I feel like the pressure from the opposition, from the nuclear arms states, will probably just increase up to September. I think that there will be a moment Where they will put most effort into stopping countries from signing this treaty. And then I think it will decrease and it will become a reality that everyone will have to get adjusted to.

The NPT has huge problems with or without the ban. I still think very strongly that having the majority of NPT states saying that under any circumstances they will never develop nuclear weapons cannot be a negative thing if you're serious about implementing the NPT. It strengthens non-proliferation. It strengthens disarmament. It's taking that commitment very seriously. So I think it's... And people talk about building bridges all the time, that we need to build bridges now.

But we have a bridge. It was 2010. That was built. And that action plan is still being unimplemented. So if they want to do something, they have 22 actions. They can just start. There's nothing stopping them. And the Ban Treaty isn't stopping anyone, any of those actions. Efforts of being made. That's actually nuclear arms states stopping those efforts.

Andrea 33:57

You're making me want to go get a glass of wine very desperately. Maybe that's the point on which we should end. But thank you so much, guys, for joining me and spending an hour chatting and decompressing on this issue. It's been a really fascinating, at least from an intellectual perspective, set of negotiations to watch unfold and There's so much to continue to watch in the months and years ahead.

So thanks again for sharing your insights on it. And thank you to our listeners for tuning in.