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Nuclear ban talks: resolving drafting dilemmas

Image credit: United Nations Photo (Flickr: Creative Commons)

The UN Conference for the Prohibition of Nuclear Weapons released a second draft of the proposed nuclear ban treaty on Tuesday night. The talks sought to resolve disagreements over the text, and close in on the adoption of the treaty before the current UN General Assembly mandate ends on 7 July.

The conference talked through the initial draft during the first week of the June-July round of negotiations, recommending extensive revisions to its preamble, core prohibitions, verification and safeguards, and provisions for nuclear weapons possessors to disarm and accede to the treaty.

Not in attendance at the negotiations were the nuclear weapons states, including the United States, which boycotted on the grounds that a treaty is unrealistic and counterproductive to disarmament efforts, particularly in the current security threat environment.

For the more than 120 participating states, as well as civil society and academic supporters, however, the treaty represents the opportunity to move beyond the current stalemate in the nuclear disarmament agenda and engage with the humanitarian impacts of nuclear weapons. Advocates hope that the coercive impact of the treaty will prompt renewed action by nuclear weapons states.

Initial feedback on the new draft was positive. As described by the Washington-based Arms Control Association, this iteration is ‘cleaner and clearer’ than its predecessor, and resolves many of the concerns raised by state parties and civil society participants.

Humanitarian-minded advocacy groups expressed support for revisions to the preamble, which strengthened the language on international humanitarian and human rights law, and added reference to the impact of nuclear weapons on indigenous peoples. The revised draft also enhanced references to the gendered impact of nuclear weapons, and the importance of education and women’s participation in disarmament efforts.

The core prohibitions—central to the treaty’s agenda of closing the legal gap on nuclear weapons use—remained largely unchanged; the development, production, manufacturing, acquisition, possession, stockpiling, transfer, testing and use of nuclear weapons are all banned under the treaty.

Persistent requests from some participants to include prohibitions on transit and financing were contested on the grounds that verification and enforcement would be too challenging, especially given poor regulations and the deliberate opacity of some states’ policies. As such, those prohibitions have not made it into the revisions. A reference to the UN Charter’s call to refrain from the threat of use of force was added to the preamble, despite some states suggesting it should be an explicit prohibition.

On safeguards provisions, the second draft adopted a popular suggestion from Ireland that would see states at least retain their existing levels of safeguards without impacting on the possibility of future advances. This text clears away a major criticism of the initial draft, which was the inclusion of a reference to an outdated standard of International Atomic Energy Agency (IAEA) monitoring and inspections, rather than the technical advances some states have recognised by ratifying the Additional Protocol. Early feedback from states on the new draft indicates that there’s still room to improve on this article of the treaty, particularly to close a loophole that could allow states to accede to the treaty without any safeguards standards at all.

The accession of nuclear weapons states to the treaty has persisted as a complicated issue. The revised draft saw a major shift in allowing states to first join and then disarm, rather than disarming prior to joining the treaty, as stipulated by the original draft. That was a result of the options expressed by academic Gaukhar Mukhatzhanova in the March round of negotiations.

In addition, the revised text is more specific in laying out the steps that nuclear weapons states must take to accede to the treaty; from removing weapons from operational status, to presenting a timeline for destruction, and submitting to international verification and IAEA inspections.

Consistency between the inspections measures of the ban treaty and other nuclear treaties has been a major focus to avoid unintentionally undermining the efforts of the existing regime. Fears that the text may prompt “forum shopping”—where states seek to sign onto the treaty with the least burdensome measures—have prompted close scrutiny of the language of complementarity with the Non-Proliferation Treaty (NPT) and Comprehensive Test-Ban Treaty (CTBT).

Heated debate and further revisions on all of these measures can be expected in the remaining days of the negotiations; however, the greatest challenge for the treaty will come if the final text is successfully adopted. With the bar for entry into force now raised to 50 states ratifying the treaty, the question for advocates of the ban and the broader international community is whether this will be enough to coerce nuclear weapons states to re-engage with the disarmament agenda.

Rebecca Borys is currently studying a Master of International Relations at the University of Sydney.

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