Banning the Bomb: Part 2

Jeffrey Lewis 0:01

You don't need to agree with that, Andrea. You still get invited to their little pow-wows. You are listening to the Arms Control Wonk podcast, the leading podcast on arms control, disarmament, and nonproliferation. I'm Jeffrey Lewis, the founding publisher of the Arms Control Wonk blog, and a scholar at the Middlebury Institute of International Studies at Monterey.

Andrea Berger 0:26

And I'm Andrea Berger, a senior research associate at the Middlebury Institute of International Studies, also at Monterey, but living in London.

Jeffrey 0:34

Yes, yes. Foggy London?

Andrea 0:37

Is it foggy now? Right now, sunny London, believe it or not. But we'll see how long that lasts.

Jeffrey 0:45

I thought we would talk about disarmament, and in particular the Nuclear Weapons Convention, since there is nobody who knows more about this than you. What do you think?

Andrea 0:54

Oh man, there's a lot going on right now. And so much to talk about when it comes to the draft convention, which landed on our desks on Monday, the 22nd. And was surprising to me in a whole bunch of ways and interesting, but maybe not surprising in a whole bunch of others. So yeah, let's talk through it.

Jeffrey 1:18

Well, you were up to your epaulets in this thing, so I can't imagine that you were more surprised than I was, because I literally had no idea what to expect, and I spent a solid three hours marking up the text with many, many questions. I don't know. You were surprised? Why were you so surprised?

Andrea 1:42

Well, I mean, parts of it were, I think, fairly predictable. Most of the core prohibitions, and we can talk more about this, but most of the core prohibitions were broadly what I thought would be there. I expected some aspirational language as well about how to get nuclear possessors involved in the convention in some way. I didn't know exactly how that looked.

I thought maybe they would Just stick something more in the preambles and maybe express in an article some future aspiration. But they went a bit further than that. So that was interesting to me, too. And then there's a whole bunch of little bits and pieces that I found more surprising, kind of taken on their own.

Jeffrey 2:29

Yeah, when I looked at it, so, you know, I was expecting a convention that banned nuclear weapons. But I was, I guess I was surprised by two things. I was surprised by how sweeping or comprehensive the general obligations were, going beyond language that you might find in, for example, the Chemical Weapons Convention, you know, to include bans on nuclear testing.

And then the other thing I was struck by was how much of the language is copy and pasted from other agreements, which creates kind of a fun experiment in trying to figure out what various things mean and maybe whether certain provisions were as carefully thought out as perhaps they should be.

Andrea 3:16

It's an interesting dilemma because I think part of the reason why some of the copy-paste attempts happened is because A slice of the motivation for negotiating this treaty was to close what was perceived as a legal gap because you had these other treaties dealing with other forms of weaponry, but you didn't have that for nuclear weapons, the logic went.

And therefore, that was a legal gap that needed to be filled. And as a consequence, many parallels were drawn from the other treaties that people were referencing.

Jeffrey 3:53

I think one thing that I was really struck by is how much the language draws from nuclear weapons free zone agreements relative to, say, the NPT. And I was interested in that and particularly because The nuclear weapons free zones agreements themselves do not tend to use consistent language for the range of activities like develop, produce, manufacture nuclear weapons.

And so in a strange way, even though it's quite elaborate, I'm not quite sure what it prohibits.

Andrea 4:31

Yeah, actually, a great example of this came up in the discussions in March because the There was at one point a question over whether or not the treaty should include definitions. And I think that's still partly an open question. But when certain states were thinking through how to define some of the key terms in the treaty, the issue of how to define nuclear weapon came up.

And nuclear weapon is not defined the same way in all of the nuclear weapons free zones that exist. And so... One of the suggested proposals was actually potentially to use the term and definition for nuclear weapon from the P5 glossary that was negotiated and dropped at the 2015 review conference as well. And I think it was quickly noted that that definition would be totally unsatisfactory for the purposes of a draft convention prohibiting nuclear weapons.

Jeffrey 5:33

Yeah, I guess I should say, I mean, without killing people by dragging them through the nuances of every possible word, I mean, it's a pretty standard set of prohibitions on manufacturing and producing nuclear weapons with a variety of other words that complicate that story. Prohibitions on transfer, transfer and receipt of said weapons. But then interestingly, a ban on use and then a ban on nuclear weapons test explosions, which is taken from the comprehensive nuclear test ban treaty.

Andrea 6:10

Yeah. So my reflection on the core prohibitions is actually that there's a few key interesting parts of The Article I general obligations. I think there's a need to give clarity to what is encompassed by certain terms, particularly when you use terms like manufacture. So to what extent can you research nuclear weapons before someone else might feel that that comes into manufacture?

These are issues that We've been debating in the nuclear community for some time, but they're brought into higher relief when you start breaking out core prohibitions like this.

Jeffrey 6:57

Yeah, the thing I noticed was that in the context of the Joint Comprehensive Plan of Action, the nuclear deal with Iran, which, you know, is pursuant to the NPT, so it's really just manufacturer, the IAEA, well, sorry, the... The contracting parties, so the E3, EU plus three, right, felt the need to spell out in one of the documents the actual activities that could not be undertaken.

It's interesting because this is like a level of granularity more than the NPT, consistent with nuclear weapons free zones, but not the level of granularity you saw in the Iran nuclear deal.

Andrea 7:40

That's absolutely right. And You know, this is going to create, I think, a whole other set of complications when you start considering the fact that assistance is listed in the general obligations as well. And then you get to Article 7 and it says you have a responsibility to penalize anyone in your jurisdiction, which includes your nationals. Who in some way facilitate the activity that's prohibited by the treaty.

Jeffrey 8:10

Carrie Sublette, you're going to jail.

Andrea 8:11

But, you know, if someone says, for example, actually we interpret assist to include finance, then there's going to potentially be a very heavy burden placed on states to say, Ensure that they know what their own nationals are doing in relation to the financial activity of like the atomic weapons establishment pension fund or whatever it is. And that's a big undertaking that I'm not sure all States have fully wrapped their head around how these different general obligations interact with other parts of the treaty.

Jeffrey 8:48

Well, maybe that's something we should talk about at the end, because there are some nightmare scenarios which the convention doesn't raise, but I think people maybe are still worried about. I mean, I know one of them was that there would be an effort to restrict transit, and it's worth noting that the core provisions don't restrict the transit of nuclear weapons, which I know would have been a neurologic issue for the U.S., Although, you know, I will still complain that unlike the Southeast Asian Nuclear Weapons Free Zone Treaty, there's no direct recognition of the law of the sea and freedom of navigation, which, you know, probably would have been helpful to reassure.

Andrea 9:33

Yeah, it could have gone further in the other direction, too. There were some countries... Who really wanted a lot of detail on these sort of points to the point that they were discussing potential inclusion of like EZs in the treaty as well. And, you know, there's a kind of general question for the treaty of what level of granularity do you go into and where do you draw the line?

And so I think that balance happens in parts of this convention and doesn't happen quite as appropriately in other parts.

Jeffrey 10:10

You know what the best part of that answer was? The fact that you almost said...

Andrea 10:14

I had to correct Z and Z? Yeah. That's right. I knew you were going to say that.

Jeffrey 10:18

We're slowly beating the Austro-Canadian out of you here at the Monterey Institute.

Andrea 10:25

But one of the other things I wanted to mention quickly was the testing point, because this is a really interesting one. So in March, there were quite a lot of countries... That were reluctant to have testing included in a core prohibition because they were concerned about overlapping with the CTBT and didn't want to be seen to be detracting from efforts to either encourage CTBT ratification or to promote the treaty more generally.

Jeffrey 10:58

Although I think they achieved that. Yeah.

Andrea 11:03

Yeah, but what happened was you get the references to the CTBT in the preambles, you get testing mentioned in the general obligations, but then you actually don't have the international monitoring system or any of the verification come up in the verification part of the convention under Article 3. So you sort of get a half nod to the CTBT, but not a full one, and it It doesn't really read as super sensible if what we want or what the states arguing in favor of this treaty want is to be able to walk away and say this is a treaty that has verification for core prohibitions because it won't have verification for one.

Jeffrey 11:50

Well, that actually gets at my core objection to the draft as it is and probably moves us along to this Article 3 discussion because I think my concern about this process from the beginning has been that instead of creating a convention which would... Strengthen the disarmament obligations that the nuclear weapon states have under the NPT, that instead we would be creating an alternative forum, right, or an alternative to the NPT that ultimately would undermine the NPT.

And I worry, certainly, that the same thing happens with the CTBT for the reason that you say, which is that you have a A similar, or in this case, identical obligation that a state can sign up to, but it comes with none of the verification provisions that actually are essential for the CTBT to operate. So if I was going to...

If I was going to clandestinely test, one possibility is that you could sign an agreement like this and just hope that the CTBT's monitoring efforts wither as states move over. But I actually think that's probably a bigger risk on the NPT side because of Article 3. So maybe we should talk about that now.

Andrea 13:17

Well, there's definitely some countries that will agree with your broad concern that The way I describe it is that Article 3 on safeguards kind of treats basic safeguards in the form of INFCIRC 153 as the ceiling for the treaty, with the exception of getting nuclear possessors to join, where there's language that's like the Additional Protocol. It treats it as the ceiling rather than as the floor for On which you can build and actually recognize the fact that the IAEA has moved much further in a safeguards discussion since Incirc 153 was agreed.

And there were a number of countries, Switzerland and Sweden, for example, came to the room in March and really wanted to The verification standard for safeguards to be the Additional Protocol, but the political problem with that is some of the leading voices in the ban treaty discussion don't have an Additional Protocol and aren't going to have one anytime soon. So do you start splitting nuclear weapons free zone participants over this issue? A big political issue there. Yeah, I, and I actually think it's

Jeffrey 14:40

Quite a bit worse than that, because while it's true that Article 3 requires states to have safeguards, which, to put this in perspective, for this agreement to strengthen the NPT rather than to become a predatory competitor... It can't offer a looser safeguard standard, right? Yes. You don't want to create a situation where a country can say, well, I've signed the Nuclear Weapons Convention, and that only requires me to have this safeguards agreement, so I can leave the NPT and that tougher safeguards agreement.

My concern is Article III only requires that one have a safeguards agreement, and it's true that there is an annex. That spells out that that should be an INFCIRC 153, which is the kind of standard NPT safeguards agreement. It's not the additional protocol. It's not the best. But it is kind of the sort of same bare minimum as the NPT.

But the problem is it's in an annex, right? And... This is a treaty or a convention, right, that has a prohibition on reservations, right, Article 17. But it's only a prohibition on reservations to the articles. So you could actually sign the Nuclear Weapons Convention and sign it with a reservation on the annex, right? And and then say that you're in compliance, but then have something less than a 153 type agreement, say, say like a 66 agreement or or God forbid something, something even worse than that.

So I I from my perspective, it does raise the possibility. You know, I half jokingly said that India could sign this. You know, India could sign this. And sign it with a reservation that says they're going to do their 66-style safeguards agreement and then just deny that they have nuclear weapons. And I'm being a little bit polemical when I say that, right?

But I think it really gets to the fact that, you know, that safeguards obligation, I think, has to be in the articles and it has to be stronger.

Andrea 16:56

Yeah, and in my view, you know, Some of these concerns can definitely be addressed with either more creative language or more specific language. So your issue about reservations, I'm sure there is a fix to that because I doubt very much that the intention was that states should be able to submit reservations to the annex. I don't think that was the intention.

But I would like to see some form of more creative, aspirational, Language in Article 3 itself that references the fact that actually more expansive safeguards are a bonus, a plus, and that this isn't a ceiling, it's a floor.

Jeffrey 17:47

Can I ask you about that? Because it seems to me, generally speaking, I kind of agree with the idea that when you're drafting something, it's a draft, right? And it's okay for there to be problems with the draft because that's how they get fixed is you put them out in the draft and people find them. But I'm really struck at the fact that the safeguards language is in an annex.

Do you know how it got moved down there?

Andrea 18:08

That's a good question. I don't. And I don't recall that it was explained either in the statement that the chair of the conference, Elaine White Gomez, gave in Geneva the other day. So the honest answer is, I don't know. But I'm sure if we poke listeners to go ask relevant Costa Rican delegates that we might get an answer.

Jeffrey 18:35

Oh, and before we close this out, I should put in a pitch. It mentions an INFCIRC 153 type agreement, but I want to get a pitch in for the subsidiary arrangements. The subsidiary arrangements, they're really important. It should be clear that you have, you know, the most up-to-date subsidiary arrangements, since there are some really important things that fall slightly below that safeguards agreement.

Andrea 18:57

That's a good point.

Jeffrey 18:59

I'm so cranky.

Andrea 19:01

Well, you're going to be potentially, I suspect, crankier when we start talking about Article 4 and 5, which are the provisions meant to kind of create an open door for nuclear possessors to come on board with the convention and disarm.

Jeffrey 19:21

Is it an open door or is it like a bathroom window you have to crawl through?

Andrea 19:26

Depends on if you're talking about four or five, I think.

Jeffrey 19:31

I should decode this to listeners because I spent like an hour today staring at this thing. There are two articles that deal with States that might eliminate nuclear weapons, right? The easy case is a state doesn't have nuclear weapons. And so it says, I don't have nuclear weapons. I haven't had them since, you know, I haven't had them in the period after December 5th, 2001, which is the date the treaty picks.

So I just, I come in clean. But then there are those states that might have had nuclear weapons after that period. And presumably the members of the Nuclear Weapons Convention would like all the nuclear weapons states to do this. And Articles 4 and 5 offer routes by which they may enter the treaty. Would you say that's a fair introduction to this very confusing pair of articles?

Andrea 20:21

That's right. So the chair has described them as two pathways. And Article 4 uses what she refers to, and actually she borrows the term that my colleague Gauhard uses, Uses for this approach, which is South Africa Plus. So Article 4 is meant to be South Africa Plus and Article 5 is meant to be a general framework for additional or subsidiary protocols to be negotiated to the treaty on other undefined things that will help disarmament, whether that's for a specific country or it's for multiple nuclear weapon states or it's maybe You know, to do with thistle material restrictions.

Article 5 is very generally framed to allow for that sort of stuff. So those are kind of the two pathways the chair has laid out. And I think they need a little bit of work.

Jeffrey 21:23

Yeah. So the thing I noticed about Article 4, which I've reread now multiple times, is it's a pathway that self-destructs because it requires that The state acceding to the convention have eliminated or it requires that state to have eliminated its nuclear weapons prior to the entry into force of the convention.

Andrea 21:50

Yeah. Maybe let's, let me just read this out here for listeners because it's a really important point and it doesn't make any sense to me. The The beginning of Article 4 says, each state party that has manufactured, possessed, or otherwise acquired nuclear weapons or other nuclear explosive devices after the 5th of December 2001 and eliminated all such weapons or explosive devices prior to the entry into force of the convention for it.

So what they're saying when I read it, and I don't know, Jeff, if you read this the same way, is that Article 4 applies to... States that have possessed nuclear weapons after the 5th of December, 2001, but eliminated them before the treaty comes into force.

Jeffrey 22:40

So that's how I read it.

Andrea 22:42

And that in my mind is going to be no one. I, well, I mean, unless North Korea decides actually jokes up they're denuclearizing. Oh, see, I remember

Jeffrey 22:57

I thought it was that Jeremy Corbyn is elected Prime Minister of the United Kingdom, and he renounces the nuclear weapons just before replacing God Save the Queen with the Internationale.

Andrea 23:11

Well, that's going to be a really quick elimination process if he's got to do that between the 8th of June and the treaty entering into force, because it's elimination, not just committing to disarmament.

Jeffrey 23:22

Right. So that's the part that really struck me is because the bar for the treaty to enter into force is 40 sessions.

Andrea 23:31

Yeah.

Jeffrey 23:32

And so for Article 4 to ever operate as it is currently written, you would have to have had nuclear weapons after December 2001, but completely eliminated them Prior to the 40th state acceding to the convention, which will probably happen in a matter of months, right?

Andrea 23:56

Yeah, and, you know, I think 40, this is a separate discussion, but I think 40 is way too low as a number. You look at big blocks like CELAC, which is the Community of Latin American and Caribbean States, and They've got, what, 33 members in it alone and will probably, as a unit, if there's broad agreement on the treaty, submit those essentially together.

And then once you get an additional seven, could be fairly small countries, Africa, etc., You know, it's going to be a quick process.

Jeffrey 24:36

Yeah. So as it's currently written, I think any nuclear weapon state that chose to abandon its nuclear weapons would have to come in under Article 5, which is a problem because all of the detailed measures for verifying the elimination of those nuclear weapons occur in Article 4.

Andrea 24:53

That's right.

Jeffrey 24:55

So that's why I made that half joke about India, because if India comes in under Article 5, it's very unclear what the verification would be.

Andrea 25:05

And so I have two other thoughts on this. One is that I think there's a fix for the weirdness in Article 4, which is that I think you get rid of the part that talks about the fact that they have to eliminate before the entry into the force of the convention. And you change the date from 5th of December 2001, which is in there because of Belarus, Kazakhstan and Ukraine.

And so it's not to duplicate their obligations. And you instead just make that like the date that the treaty is agreed or the date of entry into force, because in practical terms, that's the same thing. Anyone who had nuclear weapons after the 5th of December 2001 is going to be the same group of countries that had nuclear weapons after the 7th of July 2017.

So I can't see a good reason why we can't just make that more anchored in the present.

Jeffrey 26:02

Right. So the requirements are, if you answer yes to possessing nuclear weapons after the entry into force of the convention, you must eliminate the nuclear weapons prior to your entry or your accession into the convention.

Andrea 26:16

That's right. But my other point where I'm not clear on with the two pathway framing is who chooses which pathway the country takes. So let's say you've got North Korea decides as part of a broader political agreement that it's going to give up its nuclear weapons. Does North Korea get to choose whether it goes through Article 4 or whether it goes to the state's party, to the treaty, to negotiate something under Article 5?

That's what I'm not clear on.

Jeffrey 26:53

Yeah, I am not as convinced as you are because of the wording of Article 5 that this was merely... I mean, maybe I should not assume... And I'm not sure... I mean, it may be that the... I should be careful how I say this, because I don't mean to say that... Some people may have gone along with this not realizing the implication of it, but I'm not entirely convinced that whoever pushed this was up to some good.

You know, it's... Article 5 says provisions for the verified and irreversible elimination of any remaining nuclear weapons programs. And so clearly someone somewhere along the way had mental models for two types of states. And what I can't get my head around is what those mental models must have been.

Andrea 27:49

I agree, and I think that's where a lot of my confusion is coming from too, especially because Article 5 is described as Measures for situations not covered by Article 4. So what are those remaining nuclear weapons programs that are not part of the situations covered by Article 4? I don't get that bit.

Jeffrey 28:08

Because if we made the fix that you propose, which I wholeheartedly agree with, you would not need Article 5. Maybe.

Andrea 28:17

I think Article 5 is meant to be the... General way of saying to state's party to the treaty who wanted things like provisions on threat of use and negative security assurances or provisions on fissile material, that there is a future possibility for you to bring those things up in the context of additional protocols to a ban. And I think it's basically a political concession to build a halfway house between the states that wanted a really comprehensive convention and And that answers both the how we're going to get to the disarmament and the what about the prohibitions and the states that just wanted the prohibitions, that what bit without the how.

Jeffrey 29:06

So just a quick update to clarify something we got wrong in the podcast. Andre and I talked about Article 4 of the Nuclear Weapons Convention, which is one of the two pathways for a state that eliminates nuclear weapons in the future to come into the convention. We were really confused by a passage that applies to a state party that eliminates nuclear weapons, and this is the really crucial phrase, prior to the entry into force of the convention for it.

We worried that this meant that Article 4 closed after the convention entered into force. Not so, says my colleague, Gaukar, who points to an alternative reading that suggests the state simply has to eliminate nuclear weapons before it, i.e. The state, accedes to the convention. At issue is a grammatical ambiguity and probably not a substantive problem. There's something called an ambiguous pronoun, which is a pronoun that has no clear antecedent.

That can be really funny sometimes. There's a great cartoon where someone says, I had to change my baby's diaper. Do you mind throwing it away for me? And then the other person in the cartoon takes the baby, not the diaper. English speakers have a tendency to attach the pronoun to the closest antecedent. Andrea and I assume the phrase convention for it meant the convention for the elimination of nuclear weapons.

But Galkar thinks for it refers not to the object of the convention, but to the state itself. And indeed, for it is used precisely this way elsewhere in the text. In other words, the pathway does not close once the treaty enters into force. That seems to be like a 100% less crazy reading than our reading, and indeed that is the change that Andrea and I proposed.

So if Gowkar is right, and I think she probably is, it should be pretty easy for the drafters to clarify that in a revised text and make clear that Article 4 remains a pathway for states to eliminate nuclear weapons even after entry into force. Also, don't throw away babies. So I want to say one more thing about Article 4 before we jump to Article 5, because I have an additional substantive concern about it.

You mentioned that the chair called this South Africa Plus. Yes. So this is both an example of slightly incautious drafting, but also, I think, a substantive problem. Paragraph 3 says, Which spells out the authority of the IAEA to verify the activities, is plagiarized from an article.

Andrea 31:44

Oh, interesting. Do tell.

Jeffrey 31:45

It is plagiarized from an article in the IAEA Bulletin called Nuclear Verification in South Africa. By three IAEA officials at the time, including Demetrius Perikos. Because that article says, For the purposes of performing verification required by this article, the International Atomic Energy Agency shall be provided with... This is the key. Full access to any location or facility associated with a nuclear weapons program 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.

Andrea 32:25

So that's a direct lift.

Jeffrey 32:27

Yeah, the article's concluding quote is... The IAEA plans to take up the standing invitation of the South African government under its reiterated policy of transparency to provide the IAEA with full access to any location or facility associated with the former nuclear weapons program and to grant access on a case by case basis to other locations or facilities that the IAEA may specifically wish to visit.

So it's literally South Africa. It's not South Africa Plus. It's South Africa.

Andrea 32:52

It's literally South Africa.

Jeffrey 32:54

It's not agency language, and so it's got some wiggle room in it that makes me very uncomfortable. And I think the reality is, you know, maybe people, maybe I'm like old and cranky, but South African cooperation with the IAEA sucked. You know, it was not good. And if Iran had dragged its heels, I think, as much as South Africa did in the period of denuclearization, I don't think we would have had an Iran nuclear deal.

Andrea 33:27

So, you know, I think many of the appeals of describing the process encompassed in Article 4 in this way have to do with the debate that happened over whether you need to Or whether you should be able to join the treaty first and then eliminate weapons, or whether you have to eliminate weapons first and then join the treaty.

That was kind of a broad, high-level question over which is the way to go for the purposes of a nuclear weapons ban. And this is one of the models for an eliminate then join, which I think in general is more sensitive. But yes, as you suggest, it probably does need further refinement. I think it needs further refinement in the ways I described as well.

So maybe we need to do a proposed rewrite. I'm signing up for more work.

Jeffrey 34:28

Yeah, I was going to say, I don't know what you're doing. I mean, do you have a grant lined up for us to do this?

Andrea 34:33

Not to draft new treaties, but that's what... Civil society can be helpful with. So I'm sure there will be other listeners too that have thoughts on what needs to change in this draft.

Jeffrey 34:45

Yeah. All right. Well, let's talk about Article 5 because Article 5 also is causing me a little bit of heartburn.

Andrea 34:50

Okay.

Jeffrey 34:51

And by a little bit of heartburn, I mean an incredible amount of heartburn.

Andrea 34:55

I kind of got the bits I was concerned about off my chest. So why don't you go on article five?

Jeffrey 35:01

Why don't you replicate them? Because you did get them off and you said them very eloquently, but then I insisted that we talk more about article four for like another five minutes that probably caused people to turn off the pod.

Andrea 35:14

So like I said, I think article five is not clearly framed in relation to article four in the situation's That would lead to discussions over elimination of either one or more nuclear weapons programs pursuant to this article. But at the same time, I think it is sensible from the political perspective of appeasing the countries that really wanted everything in the kitchen sink for a full nuclear weapons convention that lays out Exactly how we're going to get to disarmament if nuclear weapon states want to sign on and lays out all the detailed verification and warhead dismantlement verification frameworks.

This is kind of a way of appeasing them and kicking that can down the road for a future discussion.

Jeffrey 36:13

And I can see the wisdom of doing that. But I'm also really concerned that it, you know, there is a procedure for amending the treaty. But there is also this process, or as you would say process, described in Article 5 for adding additional protocols that would be annexed to the convention.

Andrea 36:38

Yep.

Jeffrey 36:39

And those can be adopted at meetings of the state parties, which listeners will know we had a long and complicated discussion of UN rules of procedure. But in the best case scenario, it's a two-thirds majority of the members present and voting on substantive matters, right?

Andrea 37:03

I'm not sure that's the best case scenario. I think that's Probably the worst case scenario, because I don't think they can have a rule of procedure. And I stand to be corrected on this. That's less than two thirds majority. I think what would probably happen is you'd have they treat it as a significant substantive matter. You'd need two thirds of countries present and voting.

And there would be some sort of language, much like the language actually used to govern these negotiations over the ban, which says that you need to make your best effort at consensus.

Jeffrey 37:35

Oh, so the best case scenario would be there'd be a requirement to attempt consensus before the fallback scenario of a two-thirds president voting.

Andrea 37:44

Yeah, I think that's probably right.

Jeffrey 37:46

Okay. So the best case scenario is there's at least an attempt at consensus first.

Andrea 37:49

Yeah.

Jeffrey 37:50

Still, it makes me very nervous because it's not spelled out. We're inferring this from the way the General Assembly operates.

Andrea 37:57

That's true. So I think there could be clarification on that point, too. One of the things... That was a clarification from the chair that I wanted to just reiterate and read out quickly, relate specifically to her thinking underlying Article 5. And she says, as the circumstances for each state possessing nuclear weapons differ greatly, and we cannot anticipate at this stage at which point in the future they will be compelled to engage in a process leading to the total elimination of their nuclear weapon programs, it would be difficult and likely impossible for the conference In the span of three weeks to develop these provisions.

So what she's saying basically is for political reasons, we're trying to be expedient and get this done in three weeks. We can't do everything in three weeks. So let's kick the can on additional protocols, subsidiary arrangements to the treaty.

Jeffrey 38:53

Now, am I being a stick in the mud? If I say then take longer than three weeks?

Andrea 39:00

Well, the argument, so This is a debate as well in the context of those who are participating in the discussions, because some would be very happy to take their sweet time. And perhaps that's because they're not that interested in a ban, actually. I will throw that allegation at the Iranians. I'm happy to be debated on it, but I don't see the Iranians being... You can hurl that allegation at me.

Yeah, so I think there's some that would be very happy to... Have this in the long grass, but then there are countries that suggest that actually the longer you take. So the mandate from the general assembly doesn't extend until the next general assembly. So you'd have to go back in the fall time to get a new mandate and drag it out into 2018 and 2018.

There are other things going on. There's a high level conference on nuclear disarmament. There's another NPD prep comm and, All the while, the longer you go on, the thinking goes, the attention and focus on getting this treaty is going to start dissipating, and you're potentially going to get fewer states engaged with it. So there is a strong pressure felt by some to get this done.

Jeffrey 40:19

I guess I accept the force of that argument. I'd still rather it be done right.

Andrea 40:23

I can take that argument too, and Actually, I think what it's going to mean is probably some really long nights in New York for the country's drafting in June and July.

Jeffrey 40:35

So I think my ultimate concern, and we can talk about this in a little bit, is that while I can understand the desire to retain some flexibility for future scenarios, which are uncertain and difficult to plan for... There's very little guidance in this article. So it's very broad. So I could imagine a two-thirds majority of the first group of states that adopt this or that accede to this convention adopting very worrisome additional protocols.

And I am really bothered that there's kind of no guidelines in the way that there are in Article 4. For states coming in. I mean, you could be eliminating your nuclear weapons and there's no requirement that the IAEA be involved in that per Article 5. I mean, I guess we can assume that that's what the state's party would want, but it bothers me that it's not on the paper.

Andrea 41:46

In my view, there should probably be a greater distinction drawn between 4 and 5s. Article 4 should probably be for those countries that either unilaterally or as part of a group want to totally give up their nuclear weapons. If you do that, you've got to discuss with the IAEA. You go down that road, you have one pathway to join this treaty.

Article 5, in my view, should be about additional measures that are short of the total disarmament By one or more nuclear possessors. So things like if you want a negative security assurance agreement or official material restrictions like we talked about and like some countries are proposing, or indeed if you want to put some sort of arms control in here, though I don't think that's as likely to be the case, but those types of things short of full disarmament By one or more countries.

Put that as a pathway in Article 5 that's more general and that addresses that political need to kick the can on decision-making out further than three weeks.

Jeffrey 43:05

I have a factual question for you.

Andrea 43:07

Sure.

Jeffrey 43:08

Do you know why... Given that description, why Article 5 explicitly mentions the elimination of nuclear weapons programs, but then doesn't mention all those other issues, which I think you quite reasonably point out would be a proper use of such an article?

Andrea 43:29

Yeah.

Jeffrey 43:30

Because by focusing on the one and not the other, it gives this very different impression if you're reading it for the first time over coffee in three hours, like I did yesterday.

Andrea 43:41

I agree. And I do think it seems like the explanation from the chair is that she intends there to be two pathways. But like we were talking about before, it's not clear what those different scenarios are that bring the unilateral or multilateral disarmament Decisions of one or more countries into Article 4 versus Article 5, because even that bit where she says, as the circumstances for each state possessing nuclear weapons differ greatly, you know, we needed Article 5 to keep things open and flexible.

Well, you know, what is it about the process leading to the total elimination of the nuclear weapon programs of those countries that's materially different than the ones that would Be required to go through an Article 4 process.

Jeffrey 44:31

Yeah.

Andrea 44:32

Okay. Don't get that. Yeah. So, the honest answer is, I don't know on why Article 5 is framed exactly the way it is.

Jeffrey 44:42

You want to talk about Article 19?

Andrea 44:47

Yes. Complementarity with the NPT. This was a...

Jeffrey 44:51

It'd be great if it actually did that.

Andrea 44:53

It was a massive talking point in March. Pretty much... The core area of agreement amongst all the countries that were present in New York in March was that the complementarity between this treaty and the NPT needs to be reinforced, reiterated, so that there is not the impression that there is an attempt to create separate provisions that in some way conflict with what's already Within the nonproliferation treaty.

And so they attempted to do that by putting language into the preamble to that effect. There's an attempt to do that in Article 19, which says, if I can get my paper...

Jeffrey 45:40

The convention does not affect the rights and obligations of the state's parties. It should be state's party, right?

Andrea 45:48

I never know the answer to this. They sometimes...

Jeffrey 45:53

State's party. It's state's party. This convention does not affect the rights and obligations of the state's parties under the Treaty of the Non-Proliferation of the Treaty on the Non-Proliferation of Nuclear Weapons. So my... You know, I go back, I like the suggestion by Adam Mount and Richard Nephew that for this to be truly complimentary and not predatory venue shopping, which is what I fear we're risking, I think this has to require that states be members in good standing of the NPT.

Andrea 46:33

I'm totally in favor of that, and I can't see a good argument against that. Putting that in. In my view, it would really add meat to that suggestion that the two are reinforcing and complementary. Because Article 19 as currently framed is going to be frustrating to some who want this to develop a norm and a political point that actually suggests that nuclear weapon states within the NPT Aren't legitimate in their continued possession of nuclear weapons.

So they won't want to talk about, you know, not stepping on that toe. But then you'll have others who want to emphasize complementarity with the NPT, not least for issues around, you know, recognizing the right to peaceful uses.

Jeffrey 47:27

Yeah, I heard someone suggest that the reason Article 19 is written the way it is is because there are states that they would hope would sign the convention that wouldn't necessarily sign the NPT. But that actually strikes me as the reason that you don't want this, because you don't want actually anyone to have that choice, right? You don't want...

If that is in fact the reason, then you truly are creating an alternative venue that will then, you know, serve as a kind of geopolitical alternative to the legitimacy of the NPT. Oh, and by the way, while we're at it, we should also require that states be

Andrea 48:04

Members in good standing of the CTBT, since we're banning the testing of nuclear weapons. Yeah, actually, I was, I was just going to say that because I wonder if that might have been in Article 19 previously, because if you look at the subtitle under Article 19, it says relations with other agreements, plural. Uh-huh. And then just mentions the NPT. So I wonder actually CTBT might have been in there before and got taken out. Yeah, well, they should

Jeffrey 48:32

Put it back in and maybe include a procedure for the fissile material cutoff treaty that we're never going to get, which makes me sad.

Andrea 48:40

I'm not as convinced on the fissile material front. And my only question mark over putting CTBT language in there is whether there's any legal issue with requiring good standing with a treaty that's not yet entered into force. That's just a general area of Ignorance for me. I'm not sure if there's complications around doing that. So if anyone knows, that would be really interesting.

Jeffrey 49:09

So finally, I think we should talk about what's not in the agreement. Because I'm reminded of this great story Mort Halperin used to tell when he was working at the Defense Department in the 60s. He had to write a speech, I think, for John McNaughton. And it was about U.S. defense policy and Mao's China. And there was a whole big long discussion about succession in China and Lin Biao, who was Mao's heir apparent.

And it was really... Long and convoluted and like not at all appropriate for a high level policymaker. You know, it was like some kind of weird academic paper. And so Mort takes a whole bunch of the Lin Biao stuff out of the draft and gives it to his boss. And his boss looks at it and says, too much Lin Biao, gives it back to Mort.

Mort takes a bunch of the Lin Biao stuff, gives it back to him, and he says, it's still too much Lin Biao. Mort goes back, takes a bunch more of the Lin Biao stuff, comes back, and finally, you know, the boss says, look, it's too much Lin Biao. And Mort's like, look, do you know how much Lin Biao I've taken out of this thing?

And his boss says, Mort, No one will notice the Lin Biao you've taken out, right? You know, we only notice what's in. And maybe this is a case where we should pay attention to the things that didn't make it, which either are good that they were left out, because we think that would make the convention less effective, but maybe also a warning sign that they might come back in.

And you had a scary one.

Andrea 50:47

Well... There was a few that I think have a decent chunk of countries participating in the negotiations behind these particular ideas. And so, you know, to some extent, be careful what you wish for when noticing the things that aren't in this treaty, because there were a whole lot of things that got brought up in March. The one I will be perfectly transparent in saying I don't think should be in here is finance.

I completely understand that advocacy organizations and a number of countries want to be able to go and do pressure campaigns on banks to get them to divest from anything to do with nuclear weapons infrastructure and enterprise in any of the nuclear-armed states, including In the US and UK and France. I understand that they want to do that.

I think the complications that are created by having to verify what all of your nationals are doing in relation to the financing of any of the activities in this treaty is really, really, really difficult. And as someone who works on counterproliferation finance, I know how hard that is to have a regulatory system at the national level that allows you to have a sufficient conversation with your financial institutions to get that degree of information where you can have confidence that you're not inadvertently funding prohibited activity, whatever that might be.

So please don't put it in this treaty. It's really hard and I think could create a lot more grief than anticipated.

Jeffrey 52:42

Well, and I suspect that one consequence of it being so difficult is that it would lead to, I think, very selective enforcement.

Andrea 52:52

It would. And actually, it would probably be something where very few states would themselves go out to look into what others are doing to hold them to account. I think this would be a situation primarily where advocacy organizations are doing that outreach. You know, I'm kind of wary of that role for advocacy organizations in relation to this provision, but I'm happy to have that debate elsewhere and off the podcast.

Jeffrey 53:28

Yeah, well, you're dancing around it, but I will just say what I think, which is, I mean, you're dancing maybe because you don't think this. I don't mean to put words in your mouth at all. But, I mean, my concern is that the advocacy organizations tend to target the United States and NATO members because we're democratic and therefore more responsive to advocacy efforts.

And they don't hold the Russians and others to the same standard. And so my fear would be if you had finance provisions like this, then this would be a way of targeting NATO countries. But I suspect there would be very little in the effort. Very little in the way of targeting those entities that were supporting Russian nuclear weapons programs.

But that's my admittedly jaundiced view of some of my colleagues in the community.

Andrea 54:23

Yeah, and, you know, there were... You don't need to agree with that, Andrea.

Jeffrey 54:28

You still get invited to their little pal house.

Andrea 54:31

No, but I was just... I was struck by the fact that some countries that are really opaque offshore financial jurisdictions haven't raised this as a bigger issue and concern that finance might get brought into this discussion. So... I'll leave that one there. Threat of use was a really interesting one as well in New York. I think Gauhar and I mentioned that when we talked on the podcast before.

Some countries argue that threat of use is already illegal under the UN Charter and therefore didn't need to be in here. And it seems like that argument was sufficiently persuasive to at least convince the chair that that wasn't a basis for consensus. And that it should be left out for now. But it might come back.

Jeffrey 55:25

Is there a downside you see to that? I admittedly haven't thought about it very carefully.

Andrea 55:31

So that's a good question. And I haven't gone through the thinking on threat of use in the context of what's proposed here in the treaty in depth either. You know, there's questions of linking that with verification too. But it seems to me that, you know, it's, Yes, okay, it's about normative creation here, and if you can't use nuclear weapons because you don't have them, can you threaten to use nuclear weapons that you don't have?

That's an argument that's been put against threat of use as well. You could level the same argument against putting use in there. If you don't possess them, you can't use them. But, yeah, it's a tricky one, and I don't know the legal argument for In relation to the UN Charter that suggests it's already legal well enough to kind of come off the fence on threat of use either way.

Jeffrey 56:29

And as we said at the beginning, when we talked about core provisions, no restrictions yet on transit, which I know would be a very neuralgic issue.

Andrea 56:42

Yeah, I don't think that's going to make it in because you're going to split The Bangkok Treaty members, if you do that.

Jeffrey 56:48

And in my view... We've already gone through this once in an incredibly painful way.

Andrea 56:52

Yeah, they really have. And, you know, I think from... If what the supporters of this treaty want is to be able to create norms and a strong political message, they need to at least get the 114 countries, I'm excluding Australia, 114 countries in... Nuclear weapons free zones on board with this treaty, because otherwise I think it does the opposite of create a norm.

It actually creates a lot of questions about whether this is a politically significant movement. If those countries that are already part of nuclear weapons free zones don't want to join or some of them don't.

Jeffrey 57:39

You know, that almost works as a parting thought. Is there anything more you want to say about this draft treaty?

Andrea 57:48

Not for the moment. There's a lot in here. It's a lot for people to digest. I definitely recommend going to the ban treaty website, which I have to admit I didn't look at until the other day. And there is a non-paper by the president on her thinking on the verification protocols. And there's also... Her statement and briefing that she gave in Geneva, which lays out a bit of the underlying thinking.

So it's definitely worth having a read of those two, not just the actual text of the convention.

Jeffrey 58:22

Andrea, thank you for joining me.

Andrea 58:24

Thanks so much for having me.

Jeffrey 58:27

And thank you for listening.