Tuesday, April 08, 2014

Nuclear Issues: Summary of Nuclear Abolition Treaty Provisions

By Frederick N. Matti* | IDN-InDepth NewsEssay
ANNAPOLIS, USA (IDN) - Nuclear weapons are the most devastating of instruments, with their quadruple means of dealing mass death and destruction: blast, heat, radiation, firestorm. Surely, the last thing even the nuclear-armed states want is a nuclear “exchange,” anywhere on earth. But those states in general have not fully considered the security advantages of worldwide abolition of nuclear weapons, and a likely reason is that they have not been presented “satisfactory” answers to fundamental issues for abolishing nuclear weapons.

It is generally agreed that a treaty [convention] would be the necessary vehicle to eliminate nuclear weapons worldwide. (We already have the 1972 Biological Weapons Convention and 1993 Chemical Weapons Convention, which most but not all states have joined.) A nuclear abolition treaty would build on such agreements, especially the CWC, but would have some unique provisions, intended to most likely induce today’s nuclear weapon possessors to join. Overall, crucial elements of states’ “sovereignty” (on exigent nuclear matters) will need to be part of the treaty, to facilitate its acceptance by today’s nuclear possessors.

Following is a summary of provisions for a treaty [convention] eliminating nuclear weapons worldwide.

1. All states must join the new treaty before its entry into force.

States such as the USA will not renounce nuclear weapons unless all states do the same, in part because even a small, currently non-threatening state might at some future time undertake a nuclear weapons program—if the state is not a party to the nuclear abolition treaty (also called a “Nuclear Weapons Convention”). Further, with unanimity of states, the enacted treaty would have unprecedented geopolitical force, and various reasons would deter states from violating such a treaty, either by an attempt at cheating or by overt “break-out.”

First, by joining the treaty each state publicly accepted the obligation to abide by it (once all states have joined and it enters into force). Second, and unlike the current nuclear Non-Proliferation Treaty, a workable abolition treaty would regard all states equally, and therefore any move by a state to violate the treaty would likely incite opposition (or even direct revelation) from within the state itself. Third, the verification regime (see #10 below) would pose a substantial risk of disclosure, at the least, and thus be a psychological barrier to any move toward attempted cheating. Fourth, it would be foreseen by states that a state violating the treaty would become, at minimum, the political foe of the world’s other states. Fifth, ongoing treaty compliance by all states would be manifestly necessary to maintain for all people and states the treaty’s benefits of freedom from nuclear war or nuclear attack, freedom from “false-alarm” nuclear missile strike, virtually eliminated risk of nuclear terrorism (see #11), and freedom from “regional war,” nuclear or otherwise—in event a fear-driven “pre-emptive” attack on a state’s current nuclear weapons or suspected sites results in conflagration of war.

It may seem improbable that all states, especially among today’s nuclear weapon possessors, would join an abolition treaty. But that cannot be known or reasonably surmised until such a treaty is opened for states’ signatures, because nuclear states only then could be expected to seriously compare the security advantages of renunciation of nuclear weapons (by all states) with the current international nuclear dangers—including those noted directly above.

2. The treaty stipulates that states have no obligations, express or implied, under the treaty until it officially enters into force.

This provision is in consequence of Article 18(a) of the Vienna Convention on the Law of Treaties (the “treaty on treaties”), which adjures signatories to a treaty to “refrain from acts which would defeat the [treaty’s] object and purpose” when a state has signed or ratified a treaty but before its entry into force. This stricture, which reflects the presumed beneficial intent of treaties, needs to be removed from applicability to a nuclear abolition treaty, because most or all of today’s nuclear-armed states will not relinquish their basic nuclear stance (including possible use of the weapons) except simultaneously with all other states—upon entry into force of a worldwide abolition treaty. Meanwhile, though, as an abolition treaty accumulates signatory states, today’s Non-Proliferation Treaty would still be in effect, and the great majority of states are now NPT non-nuclear weapon parties. (States outside the NPT are nuclear possessors Israel, India, Pakistan, North Korea; NPT “nuclear weapon states” by NPT terms are those that tested a nuclear explosive device prior to 1967, i.e., USA, Russia, Britain, France, China.)

3. Only states that are already parties to the extant Chemical Weapons Convention (1993 CWC) and Biological Weapons Convention (1972 BWC) can sign the nuclear abolition treaty.

This signifies that all states would have formally renounced chemical and biological weapons before the worldwide nuclear treaty achieve unanimity and takes effect. (Most states are already parties to the chem-bio bans.) Although nuclear weapons are the most reliably, variously, and widely destructive of instruments, today’s nuclear weapon possessors probably will not join a nuclear abolition treaty if any other states—being non-parties to the CWC and/or BWC—could with relative impunity create or maintain arsenals of chem-bio weapons.

4. “Reservations” to the nuclear abolition treaty by its states-parties are not permitted [because reservations, which are used by a state to pronounce some limitation on the state’s participation in a treaty, could destroy the nuclear treaty’s necessary equal application to all states].

5. After accession by all states and (180 days later) treaty entry into force, the nuclear warhead elimination period does not begin until: (a) All states enact national implementing legislation for the nuclear treaty, and likewise for the CWC (but not the BWC, which does not require such); (b) All states accept their fellow states’ implementing legislation as adequate; (c) All states submit required declarations of nuclear materials, facilities, and weapons; (d) The nuclear treaty’s Technical Secretariat (inspectorate) completes and reports on baseline verification of states’ declarations; (e) All states agree to proceed to the “next step” of warhead elimination.

As formulated, #5(b) and 5(e) above are junctures at which a single state could halt (presumably temporarily) further treaty implementation (and this before warhead elimination even begins). This is because it is crucial that states are satisfied with compliance by all fellow states in their enactment of adequate and treaty-consonant implementing legislation, plus compliance with treaty requirements of nuclear “declarations,” with this including cooperation in achievable baseline verification of the declarations. If states could not suspend the treaty’s further implementation in event of perceived, major problems with these areas, then some at least of the current nuclear-armed states would likely decline to join the treaty—and it would not enter into force. However, the impact of treaty-required accession by all states before entry into force would provide powerful impetus for states to meet their unfolding treaty obligations.

6. For nuclear warhead elimination, a 3.5-year elimination period is posited (or 4.5 years on the chance—very small—that either Russia or the USA has over 5,000 total warheads by the time a nuclear abolition treaty has been introduced, has been joined by all states and is poised to enter into force). During the first six months (.5 year) of the elimination period, either Russia or the USA, depending on which possesses more warheads, reduces to the other’s level and then the other joins in reductions, in accord with the treaty’s time-bound elimination table. Also from that date (i.e., when Russia and the USA are first “equal,” six months into elimination period): within 90 days thereafter the other nuclear possessors—currently seven—must eliminate 25 percent of their warheads. Thereafter, though, the “seven” can cease reductions until Russia and the USA reach the respective, varying (and 25 percent-reduced) levels of the seven, at which points the latter states join in the further progression of time-bound reductions to zero.

The above schema is intended to be satisfactory to the USA and Russia, on the one hand, and to the other nuclear possessors—with their vastly smaller arsenals. Russia and the USA would be pleased by the early, prompt, 25 percent reductions required of the other seven possessors; and the “seven” would be pleased that, during the final—and thus most important—portion such as six or nine months of the warhead elimination period, Russia and the USA, drawing down in tandem, would become equal to the varying levels of the other nuclear possessors before the latter must again commence time-bound reductions leading to day of zero for all states.

7. The nuclear abolition treaty does not permit withdrawal.

If, to the contrary, withdrawal by states-parties from the treaty is legally permitted (as with treaties in general), some states likely would not join the treaty, out of concern that a state at some time might “capriciously” (but legally, and therefore relatively easily) drop out—which would probably be followed by a few others at least, thereby eliminating the reality and benefits of a nuclear weapons-free world. Also, if withdrawal is permitted, there would be concern that a state might use a “threat,” or even mere intimation, of legal, treaty-sanctioned withdrawal to “gain concessions” from other states on some important geopolitical matter. (Note, however, that a state would not be prohibited from temporarily suspending its compliance with the proposed treaty if and while another state flouted it; see #9.)

8. The enacted nuclear abolition treaty pledges its signatories—all states—not to withdraw from the CWC and BWC [and since the nuclear treaty is “non-withdrawal,” and states must be parties to the CWC and BWC before signing the nuclear treaty, upon the latter’s entry into force all states would be permanent parties to the three agreements abolishing nuclear, chemical, and biological weapons].

9. If a state under color of Article 60(2) of the Vienna Convention on the Law of Treaties ever undertakes otherwise prohibited activity pertaining to any of the three agreements (nuclear treaty, CWC, BWC) because another state is in “material breach” of the corresponding treaty [convention], the former state must publicly declare beforehand which state it arraigns as in material breach, and must also at that time present “essential attained credible evidence” of the charge of material breach.

The above prevents a state from conducting or attempting to conduct treaty-prohibited activity in secret and later on claiming as justification that “another state was already in material breach.” It also acknowledges that states would not be prohibited by the treaty from being the ultimate, sovereign determiners of whether another state was in “material breach” of the worldwide nuclear abolition treaty (or the chem-bio conventions, which of course are separate entities from the nuclear treaty—but states as mentioned would be pledged by the nuclear treaty not to withdraw from the CWC and BWC). If this prerogative of individual states (to be ultimate determiners of existence of “material breach”) was “denied” by the nuclear abolition treaty, then some states most likely would not join, because of the extreme nature of weapons of mass destruction—especially nuclear.

The UN Security Council or another entity might be willing and able to take action to reverse a material breach or break-out, but this is far from guaranteed; and military-driven “enforcement action” most likely would not be undertaken if [posited] treaty violator was any sizeable state. “Material breach,” though, would be powerfully deterred by the unprecedented geopolitical force of a worldwide treaty that applies equally and thus fairly to all states, and pernicious “material breach” of which would obviously incur immense condemnation and other opposition (although quite possibly not military) from all compass points. And if there was a material breach, any state that had temporarily suspended its treaty compliance (in reaction to breach) would be legally required to return to compliance with the treaty upon full rectification of the breach, because the treaty does not permit withdrawal. (Judgment of full rectification, though, would ultimately rest with the individual state(s), as with initial “existence” of breach—or else today’s nuclear-armed state likely would not join the treaty.)

10. On inspection/verification: (a) The verification regime, which is the primary responsibility of the treaty Technical Secretariat (inspectorate), includes challenge inspections that cannot be refused by state fiat or national court (but can be disallowed by three-quarters vote of nuclear ban Executive Council, analogously to today’s CWC regime); (b) Inspectors can temporarily declare an “exclusion zone,” to freeze a suspicious site; (c) “Safeguards” on fissionable material are extended to all states (largely based on today’s enhanced, “Additional Protocol” safeguards administered by the International Atomic Energy Agency); (d) IAEA recommendations for state securing of nuclear material (IAEA INFCIRC/225/Rev. 4, or any pre-treaty sequel) are integrated into the treaty as requirements for states to follow; (e) Fissionable material in transit is guarded (as against terrorist assault) by a treaty-created, international “Nuclear Protective Force”; (f) Treaty permanent Executive Council members (the pre-treaty nuclear weapon possessors) are entitled to maintain surveillance posts outside of states’ sites holding stocks of separated plutonium, or HEU (see #11) during its blending-down to LEU.

11. World stocks of highly enriched uranium (HEU)—which is the fissile material for a relatively simple, “gun-type” nuclear weapon—are blended-down to low-enriched (LEU—under 20 percent isotope uranium-235) over a span of years [which may need to extend beyond the weapons elimination period, depending on how much current Russian and U.S. HEU is blended-down to LEU before treaty entry into force]. (b) HEU use in reactors (mainly marine and research) must cease six months before warhead elimination ends, with an exception thereafter for any highly-protected projects approved by three-quarters Executive Council vote, including all permanent Council members’ votes.

For the USA in particular, conversion of HEU naval propulsion reactors to LEU fuel use would be a big step—but quite probably necessary to achieve a nuclear weapons-free world. If, instead, non-safeguarded HEU (in reactors of vessels at sea) was permitted, then the treaty, which must regard states equally, would also have to permit states such as North Korea to possess readily weapons-usable (by states or terrorists) and non-safeguarded HEU. In that case, though, nuclear treaty “verification” would be so restricted in scope that some states probably would not join the prospective treaty, and it would not enter into force.

Of the very few states having nuclear navies and currently using HEU fuel, none would have an “HEU advantage” over another (with all restricted to LEU use). And, although LEU use may require 4-5 times as frequent re-fueling as ultra-grade HEU, that disadvantage of LEU will likely diminish through the ongoing effort to develop more efficient, “high-density” LEU fuel.

12. The nuclear abolition treaty declares that the prohibition of nuclear weapons and of undeclared, non-safeguarded nuclear material applies everywhere (to cover any “ambiguous” or non-state areas or realms), and that “future states” must abide by the treaty’s prohibitions, and must promptly, formally join the treaty. (These provisions, while unprecedented, are justified by accession by all extant states to the treaty before its entry into force.)

[Introduction of a nuclear abolition treaty for states’ signatures will be greatly facilitated by existence of the “Model Nuclear Weapons Convention” (1997, rev. 2007; see link to MNWC at lcnp.org). Although various of the above provisions are additional to (or partly different from) those of the MNWC, the MNWC in its 19 sections covers much important ground for a successful Nuclear Weapons Convention, including extensive “Definitions,” and structure and operations of the Convention’s Conference of States-Parties, Executive Council and Technical Secretariat.]

*Frederick N. Mattis is author of Banning Weapons of Mass Destruction (pub. ABC-Clio/Praeger Security International).
“… states get to the negotiating table, Mr. Mattis has some very useful ideas for them to consider.” - The NonProliferation Review