There are a large number of us who are deeply uncomfortable with the final text of the Treaty on the Prohibition of Nuclear Weapons, particularly as it relates to safeguards. Some supporters of the agreement have noted that it seems unreasonable for states that did not participate in the negotiation to complain about the outcome.
Complete list of governments entitled to whinge about safeguards provisions in #nuclearban:
1. Those who participated in the negotiations.
— Wildfire_ (@Wildfire_v) July 10, 2017
They have a point. While I disagree with Wildfire about the acceptability of the final text, I also happen to share the frustration that the United States was not in the room to play a constructive role to work toward the elimination of nuclear weapons. The nuclear weapons states bear considerable responsibility for their refusal to participate in the humanitarian initiative and then in the negotiations on the final agreement.
That said, there are problems here. And while I want to take a little time to think about the situation, I am happy that John Carlson, who served as the Director-General of Australian Safeguards and Non-Proliferation Office and is Counselor at the Nuclear Threat Initiative, has written a short piece summarizing some of the safeguards-related shortcomings from his perspective:
Nuclear weapon ban treaty – serious safeguards problems
John Carlson
The nuclear weapon ban treaty was adopted by the negotiating conference on July 7, 2107. The draft treaty is being submitted to the General Assembly with the intention of opening it for signature on 20 September 2017. It is most unfortunate that in the rush to conclude the treaty, time was not given to address serious safeguards problems in the text. The usual practice of adopting a text by consensus was not followed. The Netherlands voted against the text, Singapore abstained, and others had expressed concerns. Considering the political and historic importance of this treaty it would have been far better to have allowed the time to resolve concerns.
The main safeguards-related problems in the treaty are as follows:
(1) The treaty sets out two different safeguards standards. Parties that had nuclear weapons after July 7, 2017 are required to accept what amounts to the IAEA’s comprehensive safeguards agreement (CSA) plus the additional protocol (AP). The wording used is a safeguards agreement with the IAEA sufficient to provide credible assurance of the non-diversion of declared nuclear material from peaceful nuclear activities and of the absence of undeclared nuclear material or activities in that State Party as a whole. (Articles 4.1 and 4.3). However, other parties (essentially, current non-nuclear-weapon states) are required to conclude only a CSA based on INFCIRC/153 (Article 3.2).
This discrimination is counterproductive to the ban treaty’s objective. Strong safeguards against clandestine nuclear weapon programs are absolutely essential for disarmament to proceed. States will not disarm when other states seen as potential (or actual!) proliferators (such as Algeria, Argentina, Brazil, Egypt, Iran, Saudi Arabia, Syria, Venezuela) have not committed to the strongest form of safeguards. The background to this issue is that within the NPT there are some key states (including those listed above) that have not accepted the AP. Presumably the drafters of the ban treaty thought the place to resolve this issue is within the IAEA or the NPT – but in that case the drafters should have sidestepped the issue rather than supporting the AP holdout states. The NPT makes it clear that the achievement of nuclear disarmament requires the collaboration of all parties, not just the nuclear-weapon states. Parties that insist on lower safeguards standards for themselves are not serious about supporting disarmament.(2) A state that joins the treaty while still possessing nuclear weapons is not required to accept any safeguards until after it has eliminated its weapons (Article 4.3). This is a major weakness – elimination of the state’s nuclear weapons could take years, during which time it could be producing new weapons to replace those it is eliminating. The treaty should require the application of safeguards, similar to Article 4.1, within 18 months of joining the treaty.
(3) Another area of concern is the relationship between the ban treaty and other treaties such as the NPT, the CTBT, and nuclear weapon-free zone treaties. The ban treaty provides that implementation shall not prejudice obligations undertaken by States Parties with regard to existing international agreements … where those obligations are consistent with the Treaty. (Article 18). It is not clear how this would work in practice.
(4) There is at least one situation, fortunately probably minor, where the ban treaty appears to override the NPT. This is in relation to states that have not yet concluded safeguards agreements as required under the NPT. The NPT requires that this be done within 18 months of joining the NPT. Currently there are some 11 NPT parties that have not concluded safeguards agreements. Article 3.2 of the ban treaty requires the safeguards agreement to enter into force within 18 months of joining the ban treaty. This will be a much later date than 18 months after joining the NPT – in other words the ban treaty contradicts a requirement of the NPT and could have the effect of delaying the introduction of safeguards for parties that don’t already have safeguards agreements in force.
(5) Another drafting anomaly, again hopefully minor, is in Article 3.1, which requires states that did not have nuclear weapons at July 7, 2017, to maintain the safeguards obligations they had at the time the ban treaty enters into force. This could have an unintended retroactive effect, e.g. where a state joins the ban treaty some years after the treaty has entered into force and has meanwhile adopted the AP, the paragraph could result in reversion to the CSA. I assume what was intended here was to refer to the time when the ban treaty enters into force for that state.
While issues (4) and (5) seem minor (but should have been avoided), issues (1) to (3) are serious. One could hope that the General Assembly would ask for the text to be re-opened, at least to fix these problems. Probably though states that support the ban treaty will just have to grit their teeth and sign a defective treaty. This reflects very badly on the negotiating process.
