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International Law

After 72 years, nuclear weapons have been prohibited

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7 July 2017 was a momentous day for disarmament and arms control. On that day, 122 states approved the Treaty on the Prohibition of Nuclear Weapons, often called ‘the ban treaty’, at the United Nations in New York. Once 50 states have ratified the treaty, nuclear weapons will be illegal. The agreement will prohibit the possession of nuclear weapons for all states in the same way as the chemical and biological weapon conventions have prohibited those weapons for all.

In the final report of the 2010 Non-Proliferation Treaty (NPT) Review Conference, the parties to the treaty expressed ‘their deep concern over the catastrophic consequences of any use of nuclear weapons’. Since then, it has taken three international conferences to debate these consequences, a humanitarian pledge signed by over 100 states and a UN Open-ended Working Group to agree to start negotiations on a prohibition treaty. Consequently, the treaty is above all a humanitarian achievement recognizing the indiscriminate nature and uniquely destructive power of nuclear weapons.

This is also reflected in the process. Civil society has been an organic part of the negotiations. The voices of the victims of nuclear weapons and nuclear weapon testing have been heard as never before. In her deeply moving closing statement, Setsuko Thurlow, an atomic bomb survivor, said: ‘This is the beginning of the end of nuclear weapons’.

The Nuclear Non-proliferation Regime

None of the world’s nine nuclear-armed states participated in the negotiations.[1] Nor, at least in the near future, will they be among the states to ratify the treaty. They continue to claim that nuclear weapons are an indispensable part of their security while at the same time actively working to prevent other states from developing them.

Most of the nuclear-armed states and the states protected under the so-called nuclear umbrella voted against negotiations on the Treaty when they were proposed in a resolution in the General Assembly in December 2016. China, India and Pakistan abstained and North Korea voted in favour. None of the nuclear-armed states or the states protected by the US nuclear umbrella participated in the negotiations. The Netherlands, a NATO country that abstained in the UN vote, was the only nuclear-protected state to participate in the treaty negotiations—and the only state to vote against the final text of the prohibition treaty. Singapore abstained.

This new legal prohibition comes at a time when many experts consider the existing nuclear non-proliferation regime to be in crisis. The cornerstone of this regime is the NPT, which opened for signature in 1968 and entered into force in 1970. It gave the five nations that had exploded a nuclear weapon/device before 1 January 1967 the right to possess nuclear weapons, provided that they commenced negotiations on complete and general nuclear disarmament. The new treaty is a forceful confirmation of article VI of the NPT.

The NPT is reviewed every five years. The final conference document, which is approved by consensus, describes the issues at stake, and proposes future action and reform. The final document of the 2000 Review Conference produced a list of 13 practical steps to be taken. The 2010 Review Conference defined an action plan with 64 actions. The lack of implementation of or concrete results from both documents has been severely criticized.[2] Furthermore, the review conferences in 2005 and 2015 were unable to produce a final document.

There is general agreement that reform of the NPT is needed but no agreement on what form this reform should take. There are two parallel agendas for reform.[3] First, the agenda of Washington and its allies, which seeks to constrain the non-nuclear weapon states by limiting enrichment and reprocessing rights, tightening export controls, imposing more rigorous inspections, and making the need for an Additional Protocol compulsory and withdrawal from the NPT—currently a legal right—impossible.[4]

Second, there is the agenda of the Non-Aligned Movement (NAM), which sees the existing safeguards as satisfactory. These states do not accept limits on technology access and are protective of their right to leave the NPT. In their view, the obligation to disarm must be taken seriously. Despite agreement on the 13 steps in 2000 and the action plan in 2010, the pace of nuclear disarmament has been extremely slow. The path to nuclear disarmament chosen by these states therefore was to focus on the humanitarian consequences of the use of nuclear weapons and start negotiations on a parallel treaty within the UN but outside the context of the NPT.

The Contents of the Ban Treaty

The new treaty prohibits the use or threat of use of nuclear weapons. While the prohibition on use reaffirms international law, the prohibition on the threat of use is an advance.

Furthermore, like the NPT, the treaty prohibits the development, testing, production, manufacturing and other ways of accessing nuclear weapons. The transfer or receipt, as well as the stationing, of nuclear weapons are made illegal, and any assistance or encouragement to do so is not permitted. New issues are introduced, such as victim assistance, environmental remediation and gender-related aspects.

Special procedures have been designed for nuclear weapons states to ratify the treaty as well as those that have nuclear weapons stationed on their soil. All states are expected, as a minimum, to maintain the safeguards standard. In addition, the states parties shall designate a competent international authority (or authorities) to negotiate and verify the irreversible elimination of nuclear programmes and facilities.

Consensus was not possible on a number of issues and many questions were left open, which left many governments feeling disappointed. Issues such as a prohibition on transit or the financing of nuclear weapon programmes were proposed but not explicitly mentioned in the final text, although they were indirectly included in the concept of assistance. The lack of definitions of a nuclear weapon and testing were seen by some states as a problem. Verification was a central issue and many would have liked the IAEA Additional Protocol to be mentioned as a minimum. According to some states, withdrawal from the treaty was also made too easy.

A Hierarchy of Treaties?

The negotiations in New York have polarized the nuclear field. During the work of the Open Ended Working Group, the response by states opposed to a treaty had been labelled ‘the progressive approach’. This underlined the importance of the Conference on Disarmament and assumed a step-by-step process that would include steps such as no-first-use declarations or ratification of the Comprehensive Nuclear-Test-Ban Treaty (CTBT).[5] These states expect the new treaty to weaken the NPT by, in their view, creating a parallel structure outside the NPT with a weaker verification regime. The fear is that non-compliant states could hide their intention to develop nuclear weapons.

Some of the non-nuclear weapon states underline the treaty’s complementarity with the NPT and see it as strengthening the NPT. In their view, legally prohibiting nuclear weapons is a repair project that replaces the NPT’s lack of action on nuclear disarmament with a renewed call for the abolition of such weapons.

The frustrated majority among NPT participating states sees the ban treaty as a new legal instrument in its own right. For these states, the original balance between non-proliferation and disarmament in the NPT has been distorted, and the NPT has become a treaty only for non-proliferation. These states are not worried about the minimum verification standard because many of them have not ratified an Additional Protocol.

This polarization has raised the question of whether there will be a hierarchy of treaties. Will the ban treaty supplement or supplant the NPT? Which one will be the fundamental treaty? The relationship is not clearly defined and this will no doubt become the focus once the ban treaty has been ratified and is being implemented.

What Next?

The Treaty Prohibiting Nuclear Weapons faces a ratification process, according to which 50 states must ratify it before it enters into force. It is hoped that the process will be concluded before the next NPT Review Conference in 2020.

No one expects the nuclear weapon states to abolish their nuclear weapons and ratify the ban treaty any time soon. Nor will the treaty affect their modernization plans currently under way. The treaty is a future-oriented, normative treaty that delegitimizes and stigmatizes nuclear weapons.

Nonetheless, changes are already taking place. The classic argument of NPT supporters that ‘this is the only treaty we have’ no longer holds. Coming nuclear seminars and conferences will have to pay attention to the relationship between the two treaties. Additional pressure will be put on the nuclear weapon states to show progress on disarmament. Civil society has a new instrument at its disposal. The most positive comment, however, came from a young person observing the negotiations in New York: ‘This treaty has really created new energy in the nuclear field’. This is true, and we will all have to wake up.

First published in SIPRI.org


[1] The five nuclear weapon states under the 1968 Treaty on the Non-proliferation of Nuclear Weapons (Non-proliferation Treaty) are China, France, Russia, the United Kingdom and the United States. Three nuclear weapon possessor states have not signed the treaty: India, Israel and Pakistan. North Korea ratified the treaty but withdrew in 2003.

[2] Reaching Critical Will, The NPT Action Plan Monitoring Report, March 2015.

[3] Miller, S., Nuclear Collisions: Discord, Reform and the Nuclear Nonproliferation Regime (Cambridge, MA: American Academy of Arts and Sciences, 2012).

[4] An Additional Protocol is a legal document that grants the International Atomic Energy Agency (IAEA) additional authority to verify a state’s compliance with its safeguards obligations.

[5] The Conference on Disarmament is a forum established in 1979 by the international community for its member states to negotiate multilateral arms control and disarmament agreements. The conference negotiated the Biological Weapons Convention and the Chemical Weapons Convention but has for the past 20 years been unable to agree on a work plan for nuclear weapons.

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International Law

A sea and thousands of concerns

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The name of the “Caspian Sea” has been recently heard more than any other time! In the meantime, there are rumors, ambiguities and, of course, concerns that need to be described in the Convention on the Legal Status of the Caspian Sea which was signed on August 12 in the port city of Aktau, Kazakhstan.

Accordingly, there are some important points that calls for attention and scrutiny. In general, over the past 21 years, several meetings have been held on the Caspian Sea and how the coastal countries should be benefited from its resources. In these meetings, legal, security, economic, and even cultural cooperation were discussed among the littoral countries.

After more than two decades of fraught diplomatic efforts, the five littoral Caspian nations – Russia, Iran, Kazakhstan, Azerbaijan and Turkmenistan – agreed upon a legal framework for sharing the world’s largest inland body of water. However, as long as all disputes, especially legal conflicts between the participating countries aren’t resolved, it is impossible to talk about the establishment and continuity of sustainable relations among these countries. It should be noted that over the past two decades, one of the main tasks of our country’s Ministry of Foreign Affairs has been to direct this case and determine its legal convention.

1) Prolongation of the finalizing process of a case is not undesirable if it’s the result of scrutiny in the legal and technical parts. This is the case with determining the legal dimensions of the Caspian Sea Convention. After the collapse of the Soviet Union, we witnessed a kind of transformation in the Caspian legal regime. The Soviet Union was divided into 15 countries.

Consequently, Russia, Kazakhstan, Azerbaijan and Turkmenistan each became a separate and independent variable in this equation. Undoubtedly, the transformation of a two-variable legal equation into a “legal-security” multivariable equation is not considered a simple transformation. Therefore, we should understand the complexities of the Caspian case.

The countries of Iran, Azerbaijan, Turkmenistan, Russia and Kazakhstan each have specific demands regarding their share of the Caspian Sea resources. Making a balance between these demands and subsequently realizing them is very difficult and complicated. What is important in this context is to strengthen the “principle of cooperation” among the Caspian coastal nations, and to define joint maritime projects among all neighboring countries to protect the Caspian Sea.

Another point to be taken into consideration here is about the draft of the Caspian Sea Legal Convention and the role of the Foreign Ministry in this process. As mentioned above, the Caspian Sea Case has been open for more than two decades and has not yet come to a complete conclusion. Negotiations held among the Caspian Sea littoral states should distract our attention from the realities.

It should be noted that the establishment of the Caspian Sea Legal Convention is the basis for solving the existing disagreements over the Caspian Sea and defining concrete and conclusive cooperation among the littoral countries. A remarkable part of such security and economic cooperation will be the result of this convention.
In other words, the Convention on the Legal Status of the Caspian Sea can’t and shouldn’t be taken as in the same level with “defining the security and economic cooperation” between the coastal countries. Undoubtedly, the definition of economic, security and even cultural cooperation between the coastal countries depends on the settlement of legal disputes between these countries and setting of a common legal convention.

2) Speaking of controversial issues such as Iran’s 50 percent share of the Caspian Sea, which couldn’t be fulfilled even before the collapse of the Soviet Union, and the creation of false subjectivities in the country, by those who claim to be the representatives of our people, has no result except for the weakening of national security.

his is while the Iranian president, Hassan Rouhani, had emphasized that “we should recognize there are more important issues that need to be addressed.”
This is a legal process, and one of the main tasks of our country’s diplomacy and foreign policy system is to manage and direct this complex process. Obviously, under the current circumstances, expressing biased and targeted words will only lead to the loss of focus of our country’s diplomatic apparatus on this critical case.

Finally, it should be noted that good commitments were made during the meeting among the countries involved in this case. Today, the ministers of foreign affairs of the Caspian littoral states, unanimously emphasize on the necessity of the absence of foreign forces in this region, which is a positive trend. Moreover, from the statements made by the foreign ministers of the Caspian littoral states, we understand that their cooperation on resolving existing disputes has become faster than before.

However, until all legal conflicts between the Caspian littoral countries are not totally resolved and the Convention of the Caspian Sea Law Convention is not perfectly codified, we can’t think of this legal and strategic case as closed and settled. Therefore, in this critical situation, all efforts should be made so that Iran can benefit most.
It is emphasized here that even one singled legal disagreement should not remain among the players involved in the case. Meanwhile, the mechanism for resolving disputes should be carefully decided. Therefore, while welcoming the settlement of the existing disagreements over the Caspian Sea, there shouldn’t be any haste in completing this process.

First published in our partner Tehran Times

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International Law

Iran has to be very careful in future negotiations on Caspian Sea

Payman Yazdani

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Professor of political science says although the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states, Iran has to be very careful in future negotiations.

Five Caspian Sea littoral states signed Caspian Sea Treaty on August 12, 2018 in Kazakhstan. The agreement has created many debates about the share of Iran in Iran.

To know more about the issue we reached out to Nader Entessar Professor Emeritus of Political Science in University of South Alabama.

There are many debates on the legal regime of the Caspian Sea. Some argue that according to the treaties of 1921 and 1940 between Iran and the USSR, the share of Iran equals to 50% of this sea. Is Iran’s share stipulated in those treaties?

Nader Entessar

No.  Neither the 1921 nor the 1940 treaties specify that Iran and the USSR each share 50 per cent ownership of the Caspian Sea.  Both of these treaties talk in general terms about the resources of the Caspian Sea being the used by Iran and the USSR without stipulating the exact ownership of the seabed, boundary delimitation, and other related issues.  We have to remember that these two treaties were signed well before the United Nations Convention on the Law of the Sea (UNCLOS) was drafted and came into force.  Therefore, the 1921 and 1940 treaties could not have foreseen the complex issues of maritime boundaries that were discussed in UNCLOS.

Based on the international law, what is the legal status of the Caspian Sea after the collapse of the USSR and the sharing of the Caspian Sea by the five littoral states? Some bring about the idea of 20% sharing? Is there any base for this idea in the international law? 

The answer to this question depends on if the Caspian is defined as a “sea” or a “lake.”  If one classifies the Caspian as a lake, then according to international law its resources should be divided equally among the five riparian states.  However, if the Caspian is designated as a sea, then the five littoral states should draw lines extending from their shores to the midway point with littoral neighbors.  This explains why for many years Iran had insisted on defining the Caspian as a lake.  However, it appears that the five littoral states agreed in Aktau that the Caspian is a sea.  That is why some observers have argued that in the final delimitation agreement, Iran will end up getting not only about 13 per cent of the Caspian but also the saltiest and deepest part of it.

Is the share of each of the littoral states from the Caspian Sea defined in the convention signed on August 12 in Kazakhstan?

No, the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states.  In so far as Iran is concerned, this issue will have to be determined in a future agreement with Azerbaijan and Turkmenistan.  Iran has to be very careful in future negotiations with its two neighbors because the resulting boundary agreement will determine Iran’s final Caspian share.

What is the main achievement of the Aktau Convention, signed on August 12 in Kazakhstan, in regards to the legal regime and status of the Caspian Sea?

Although some reports have referred to the Caspian Sea Convention as a “landmark agreement,” I don’t view this agreement as such.  Its main achievement was that after more than 20 years of contentious diplomatic efforts, the five littoral states of the Caspian Sea finally agreed on a legal framework for sharing the resources of this significant body of water.  There are some clear and specific agreements in the Convention.  For example, all five littoral states agreed to 15 miles of sovereign waters, plus a further 10 nautical miles of fishing area.  But the wording of the Convention remains vague in many parts of the document, thus delaying divisive decisions that have to be made in future negotiations.

First published in our partner MNA

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International Law

Fifty Years of NPT: Weaknesses over the course

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NPT is a landmark treaty that lies at the heart of non-proliferation regime (NPR). In July 2018, Fiftieth anniversary of the NPT has been celebrated. Theoretically, NPT is committed to the goal of arms control and aims to accomplish the nuclear disarmament. For this purpose, the NPT member states are devoted to pursue three key objectives of the treaty: prevent horizontal proliferation, state’s right to use nuclear energy for peaceful objectives, and nuclear disarmament. However practically due to shifting US’ alliances, major power politics, and growing arms race, the fifty years of NPT has only delivered “Distress, Conflict and discrimination”.

Loopholes and weaknesses exist in NPT which are being misused by Nuclear Weapon States (NWS) and Non-Nuclear Weapons States (NNWS) of the treaty. Despite the NPT’s presence for 50 years and an expansion in its membership, atomic weapons have not been wiped out from the world. All the NWS aim to maintain their nuclear weapon state status due to their security or strategic concerns. Despite the dialogues of arms control, all major and smaller nuclear weapon states are committed to maintaining credible deterrence and strategic balance. Such aspirations of NWS demonstrate that major powers party to the arms control and disarmament treaty are merely the silent spectators to the existing weakened structure of the so called universal treaty of 191 member states due to their own vested interests.

The fifty years of NPT have reaffirmed that the universal mechanism to fight with nuclear proliferation and achieving the objective of disarmament is not adequate for two reasons: first, the international mechanism of non-proliferation has failed to deal with the few potential proliferators; secondly, strategic and security concerns of NWS and NNWS has undermined the Articles I, II, IV, VI and X of the treaty. In spite of the fact that until the 1980s worldwide measures to counteract atomic multiplication were generally more effective, yet in the subsequent years the NPT was not much successful to counter the aspirants of nuclear capability such as North Korea, Iran, Libya and Syria. Due to inadequate mechanism and weaknesses of the treaty, now nine states possess nuclear weapon capability and approximately 30 states have the technical ability to acquire it that is viewed as serious threat to the NPT.

Despite the potentials of non-proliferation, since 1968 with participation of 191 states and various agreements and talks, an efficient and effective regime stresses on pin pointing the weaknesses and restructuring, re-evaluation and reformation of the treaty structure.  The key setback to the NPT is that the articles of the treaty are not fairly adopted by the member states due to which the regime has failed to address the significant objectives of horizontal proliferation, arms control and disarmament. For instance under Article I of the treaty, transfer of nuclear material and technology by NWS to NNWS is prohibited. But treaty has failed to address the transfer of fissile material and nuclear technology from one NWS to another NWS. Such dynamic have increased the insecurities of NNWS and resultantly forces them to take extreme measures to ensure their security .e.g. North Korea. Simultaneously, despite being the member of the treaty, the US has been providing nuclear related technology to India since 1990s under the umbrella of various bilateral treaties or agreements. India-US nuclear agreement and granting of NSG waiver to India is viewed as an intentional measure to help India increase its military buildup to carry forward strategic ambitions of the US in the Asian region.

Furthermore, the US agreement with India for joint production and development of  military related technology such as mini UAVs , distinctive kits for C130 and designing/ development of jet engine technology has played central role in speedy development of India’s nuclear program. Such development is not only the violation of NPT by the US but also compels the NNWS to acquire nuclear capability to address their security concerns.  Right of all states to use nuclear energy for peaceful objectives played key role as bargaining chip and is viewed as major loophole in the treaty due to technical similarities in peaceful use of nuclear technology and technology for military purposes. North Korea Withdrew from the NPT in 2003.Article X of the treaty provides the right to member states to withdraw from the treaty if their sovereignty is on stake. However not accepting the states’ right to withdraw from the treaty is denial of their right of self defence and violation of treaty. Therefore, discriminatory attitude, special treatment and country specific treatment pose serious question mark on the implementation and standards of NPR.It demonstrates that the regime is just an instrument of major powers to fulfill their strategic and foreign policy objectives.

The current doctrines of NWS comprise of elements warfare, which shows hegemonic mindsets of major powers and explains their reluctance to give up on their “nuclear assets”. These factors have posed negative impact on the process of non-proliferation and disarmament. Therefore it can be inferred that the above mentioned scenarios have played central role in keeping Pakistan away from joining the NPR. If NPT states want to attract non-NPT states for the membership of regime then the current member states will have to pursue non-discriminatory approach towards non-proliferation themselves.

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