Interpretation of Subsequent Multilateral Disarmament Treaties: an Examination of Legal Integration and Political Harmonisation in the Nuclear Arms Control Regime

Interpretation of Subsequent Multilateral Disarmament Treaties: An Examination of Legal Integration and Political Harmonisation in the Nuclear Arms Control Regime

Orli Zahava

A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy

School of Social Sciences Faculty of Arts and Social Sciences

June 2018

Thesis/Dissertation Sheet

Surname/Family Name : Zahava Given Name/s : Orli Abbreviation for degree as give in the University calendar : PhD Faculty : Arts and Social Sciences School : School of Social Sciences Interpretation of Subsequent Multilateral Disarmament Treaties: An Thesis Title : Examination of Integration and Harmonisation in the Nuclear Arms Control Regime

Abstract

This thesis seeks to contribute to the literature on treaty harmonisation and integration through the application of an interdisciplinary approach to treaty interpretation. Scott’s political theory of treaty interpretation, or Cognitive Structures of Cooperation (CSC) theory, is applied to the nuclear arms control regime founded on the 1968 Treaty on the Non- Proliferation of Nuclear Weapons (NPT) to uncover what clarity it offers on legal integration and political harmonisation. CSC theory hypothesises that a stability dynamic operates within legal regimes whereby subsequent treaties could be expected to enter into force only if they serve to reinforce the political power structure that the original treaty confirmed. CSC theory provides a methodology to assess the extent to which a subsequent treaty actually does integrate and harmonise. This theory is applied to the 1996 Comprehensive Test Ban Treaty, the 2015 French draft treaty on fissile material and the 2017 Treaty on the Prohibition of Nuclear Weapons. The stability dynamic was found to have functioned in the nuclear arms control regime as CSC theory would have anticipated. This finding has helped explain the fate of disarmament treaties subsequent to the NPT. Previous studies viewed subsequent disarmament treaties either in terms of their having failed to legally integrate through not entering into force or in terms of the political dynamics at play. This study has demonstrated the extent to which, and the manner in which, both of these processes are ineluctably intertwined.

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Abstract

This thesis seeks to contribute to the literature on treaty harmonisation and integration through the application of an interdisciplinary approach to treaty interpretation. Scott’s political theory of treaty interpretation, or Cognitive Structures of Cooperation (CSC) theory, is applied to the nuclear arms control regime founded on the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) to uncover what clarity it offers on legal integration and political harmonisation. CSC theory hypothesises that a stability dynamic operates within legal regimes whereby subsequent treaties could be expected to enter into force only if they serve to reinforce the political power structure that the original treaty confirmed. CSC theory provides a methodology to assess the extent to which a subsequent treaty actually does integrate and harmonise. This theory is applied to the 1996 Comprehensive Test Ban Treaty, the 2015 French draft treaty on fissile material and the 2017 Treaty on the Prohibition of Nuclear Weapons. The stability dynamic was found to have functioned in the nuclear arms control regime as CSC theory would have anticipated. This finding has helped explain the fate of disarmament treaties subsequent to the NPT. Previous studies viewed subsequent disarmament treaties either in terms of their having failed to legally integrate through not entering into force or in terms of the political dynamics at play. This study has demonstrated the extent to which, and the manner in which, both of these processes are ineluctably intertwined.

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Originality Statement

I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material that have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.

Signed: Orli Zahava Date: June 8, 2018

Acknowledgements

First and foremost I would like to thank my thesis supervisor, Professor Shirley Scott, Professor of International Relations and Head of School, School of Humanities and Social Sciences at UNSW Canberra. It was Professor Scott’s far-reaching intellectual contributions to the inter-disciplinary field of International Relations and International Law that inspired me to explore the political dimensions of the nuclear arms control legal regime, initially through the Masters in International Relations thesis project and now, in this doctoral thesis. Her advice and assistance to me throughout this writing process has been invaluable and her insights and patience incalculable. This short note of thanks cannot possibly express my gratitude to her, though I hope in some small part, it conveys my sincere appreciation and gratitude for her guidance throughout the process of producing this thesis.

I would also like to acknowledge several colleagues, who along the way offered their expertise and advice. They provided me with an opportunity to discuss my ideas and their advice on earlier drafts of chapters have been instrumental. Thanks to: Anthony Billingsley, Alan Bloomfield, Christian Downie, Roberta Chardulo Dias De Andrade, Annie Hero, Hayley Linz and Jamie Roberts.

I was fortunate to be able to attend and present papers at the following international and domestic conferences: ISA Atlanta, WISC Frankfurt, WISC Taipei, ANZSIL Canberra, OCIS Melbourne and APSA Sydney. The collegial atmosphere of the conference environment provided a welcome respite from the solitary nature of research work and I am grateful to all who engaged with my work and offered advice and encouragement.

Capstone Editing provided copyediting and proofreading services, according to the guidelines laid out in the university-endorsed national ‘Guidelines for Editing Research Theses’. Sincere thanks to Dr Lisa Lines and Amy Jindaphan.

Finally, I would like to thank my partner in life Rodney Grunseit for his infinite and boundless support and encouragement. Words can barely express the gratitude and appreciation I have towards him and my children for their continuing belief in me.

Contents

Abstract ...... iii Originality Statement...... iv Acknowledgements ...... v Contents ...... vi List of Figures ...... x List of Tables ...... x List of Acronyms ...... xi CHAPTER ONE. ORIGINAL AND SUBSEQUENT TREATIES: INTERPRETATION OF DISARMAMENT TREATIES IN RELATION TO THE 1968 TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS ...... 1 The Issue ...... 1 The Task Ahead ...... 6 Literature Relevant to Multilateral Treaty Interpretation in Relation to Treaty Integration and Harmonisation...... 7 Positivist Approach ...... 7 Fragmentation of International Law ...... 13 Integration and Harmonisation...... 15 Multilateralism and Governance ...... 17 Summary...... 19 International Law as Ideology and Cognitive Structures of Cooperation ...... 20 Statement of CSC Theory ...... 20 Ideology: Basis and Usage...... 21 Why Cognitive Structures of Cooperation? ...... 23 Perspective on Multilateral Treaties ...... 24 Purpose ...... 24 CSC Theory and Treaty Interpretation ...... 26 Treaty Life: Operation of a Multilateral Treaty Over Time...... 29 CSC Theory Application to a Multilateral Treaty...... 30 Community of Interest and CSC Participants ...... 31 CSC Issue ...... 32 Legitimation Goal ...... 32 Foundation Ideology ...... 33 CSC Myth ...... 34 CSC Solution ...... 34 Summary: Identifying the CSC Components in a Multilateral Treaty ...... 35

CSC Components: Interaction and Usage ...... 35 Foundation Ideology and Structures of Power ...... 36 Risks to a Regime as it Evolves: Foundation Ideology Change ...... 38 Linkage Between Original and Subsequent Agreements ...... 40 Statement of Theory: Conclusion ...... 42 Structure of the Thesis...... 43 CHAPTER TWO. THE ORIGINAL TREATY TO REGULATE NUCLEAR ARMS: THE 1968 TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS ...... 44 The 1968 Treaty on the Non-Proliferation of Nuclear Weapons ...... 44 CSC Issue ...... 46 The Dissemination of Nuclear Weapons ...... 48 Community of Interest ...... 50 Foundation Ideology ...... 51 Genesis of Non-Dissemination ...... 52 Relation of Foundation Ideology to Structures of Power ...... 56 Legitimation Goal ...... 57 CSC Solution ...... 59 CSC Myth ...... 61 The International Legal Regime ...... 63 The Three Pillars Concept ...... 65 The Review Conference as an Impetus in the ‘Life’ of the International Legal Regime ....67 Balancing Disarmament and Non-proliferation ...... 70 The Law in Terms of Power ...... 72 Conclusion ...... 73 CHAPTER THREE. THE 1996 COMPREHENSIVE TEST BAN TREATY: A SYMBIOTICALLY LINKED SUBSEQUENT AGREEMENT ...... 76 Introduction ...... 76 CSC Theory and Subsequent Treaties ...... 77 CSC Issue ...... 79 Entry into Force Provision and the Path to Adoption ...... 82 Consequences of Non-Entry into Force...... 83 In Relation to the NPT ...... 85 Community of Interest ...... 87 Legitimation Goal ...... 88 In Relation to the Goal of Non-proliferation ...... 89 In Relation to the NPT ...... 92 Foundation Ideology ...... 93 In Relation to the NPT ...... 95

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CSC Solution ...... 98 In Relation to the NPT ...... 100 CSC Myth ...... 101 In Relation to the NPT ...... 104 Conclusion ...... 105 CHAPTER FOUR. A TREATY TO MANAGE THE PRODUCTION AND STORAGE OF FISSILE MATERIAL ...... 111 Introduction ...... 111 CSC Issue ...... 112 In Relation to the NPT ...... 113 Interim Measures...... 115 Long-term Efforts to Manage the CSC Issue ...... 116 Issue Linkage ...... 118 Manipulating Terminology ...... 122 CSC Issue Conclusions...... 123 Community of Interest: Conference on Disarmament...... 124 Legitimation Goal ...... 127 In Relation to the NPT ...... 128 Foundation Ideology ...... 130 In Relation to the NPT ...... 131 The Foundation Ideology of the Subsequent French Draft Treaty ...... 133 CSC Myth ...... 135 CSC Solution ...... 136 A Ban on Highly Enriched Uranium ...... 139 Conclusion ...... 142 CHAPTER FIVE. THE 1997 AND 2007 MODEL NUCLEAR WEAPONS CONVENTIONS AND THE 2017 TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS: CHALLENGES TO THE EXISTING ORDER? ...... 147 Background...... 148 CSC Issue ...... 149 ‘Nuclear Elimination’ in the Regime ...... 152 CSC Issue in Relation to the NPT ...... 155 The Nuclear Weapons Convention ...... 158 The Treaty on the Prohibition of Nuclear Weapons ...... 161 Community of Interest ...... 164 The Nuclear Weapons Convention ...... 166 The Treaty on the Prohibition of Nuclear Weapons ...... 167 In Relation to the NPT ...... 169

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Legitimation Goal ...... 170 In Relation to the Communities of Interest of the Subsequent and Original Treaties ...... 173 Foundation Ideology ...... 175 Prohibition to Provide Security ...... 177 Impetus to Act: Timeliness ...... 179 State Parties: Differential or Equal Treatment? ...... 180 Humanitarian Consequences of Nuclear Weapons ...... 182 CSC Solution ...... 185 The Nuclear Weapons Convention ...... 185 Structure of the Convention and Substantive Provisions...... 186 Implementation ...... 187 The Treaty on the Prohibition of Nuclear Weapons ...... 190 In Relation to the NPT ...... 192 CSC Myth ...... 194 The Nuclear Weapons Convention ...... 194 The Treaty on the Prohibition of Nuclear Weapons ...... 198 The Interplay of CSC Units of Analysis...... 200 Conclusion ...... 202 CHAPTER SIX. CONCLUSIONS ...... 206 Reviewing the Research Process ...... 206 Political Harmonisation and Legal Integration (1): The Issue–Ideology–Solution Nexus of each Treaty ...... 207 Political Harmonisation and Legal Integration (2): The Stability Dynamic ...... 210 Political Harmonisation and Legal Integration (3): The Link between the Community of Interest and Legitimation Goal ...... 213 Relation to Structures of Power ...... 214 Theoretical Significance ...... 217 The Future of the Nuclear Arms Control Regime ...... 218 APPENDIX ONE: THE TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS (NPT) ...... 224 APPENDIX TWO: THE COMPREHENSIVE TEST BAN TREATY ...... 230 APPENDIX THREE: TREATY BANNING THE PRODUCTION OF FISSILE MATERIAL FOR NUCLEAR WEAPONS OR OTHER NUCLEAR EXPLOSIVE DEVICES ...... 232 APPENDIX FOUR: THE MODEL NUCLEAR WEAPONS CONVENTION ...... 249 APPENDIX FIVE: 2017 TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS ...... 257 Bibliography ...... 270 Primary Sources ...... 270

Legal Instruments ...... 270 Original Documents ...... 272 United Nations General Assembly Resolutions ...... 278 Inter-Governmental Organisation ...... 280 Speech/Statement/Press Release ...... 282 US Government ...... 283 Secondary Sources ...... 286 Books ...... 286 Articles ...... 295 Non-Governmental Organisation/Civil Society Organisation ...... 305

List of Figures

Figure 1. The CSC Nexus of the Non-Proliferation Treaty ...... 208

List of Tables

Table 1. Cognitive Structures of Cooperation (CSC) Components for the Non- Proliferation Treaty (NPT) ...... 62 Table 2. Cognitive Structures of Cooperation (CSC) Components for the Comprehensive Test Ban Treaty (CTBT) ...... 108 Table 3. Cognitive Structures of Cooperation (CSC) Components for the Treaty to Manage Fissile Material Production and Storage ...... 144 Table 4. Cognitive Structures of Cooperation (CSC) Components for the Nuclear Weapons Convention (NWC) ...... 204 Table 5. Cognitive Structures of Cooperation (CSC) Components for the Non- Proliferation Treaty (NPT) and Subsequent Treaties: The Comprehensive Test Ban Treaty (CTBT), the Nuclear Weapons Convention (NWC), the Treaty to Manage Fissile Material (FMT) and the Treaty for the Prohibition of Nuclear Weapons (TPNW) ..... 221

List of Acronyms

CD Conference on Disarmament

CTBT Comprehensive Test Ban Treaty

CTBTO Comprehensive Test Ban Treaty Organization

DPRK Democratic People’s Republic of North Korea

ENDC Eighteen-Nation Disarmament Committee

FMT Fissile Material Treaty

GGE Group of Governmental Experts

HEU Highly enriched uranium

IAEA International Atomic Energy Agency

ICAN International Campaign to Abolish Nuclear

ICJ International Court of Justice

ILC International Law Commission

IPFM International Panel on Fissile Materials

IPPNW International Physicians for the Prevention of Nuclear War

LEU Low enriched uranium

MAD Mutually assured destruction

NAM Non-Aligned Movement

NGO Non-governmental organisations

NNWS Non-nuclear weapon states

NWC Nuclear Weapons Convention

NWFZ Nuclear-weapons-free zone

NWS Nuclear weapon states

PAROS Prevention of an arms race in outer space

PTBT Partial Test Ban Treaty

TPNW Treaty on the Prohibition of Nuclear Weapons

TTBT Threshold Test Ban Treaty

UNGA United Nations General Assembly

UNIDIR United Nations Institute on Disarmament Research

US United States of America

USSR Union of Soviet Socialist Republics

VCLT Vienna Convention on the Law of Treaties

xii CHAPTER ONE. ORIGINAL AND SUBSEQUENT TREATIES: INTERPRETATION OF DISARMAMENT TREATIES IN RELATION TO THE 1968 TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS

This research project will focus on the nuclear arms control legal regime to consider how to interpret treaties of the same legal regime. For nuclear arms control, the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is termed the original treaty. It mandated the negotiation of subsequent treaties, multilateral and bilateral instruments, to address issues that could not be dealt with at the time. In 2020, the NPT will be 50 years old. Over time, the legal regime has expanded to include subsequent treaties on peaceful uses of nuclear energy and regional nuclear-weapons-free zones but a subsequent treaty on disarmament has yet to enter into force. Is there a way to examine the treaties, both original and subsequent, for the provisions and principles that affect legal integration and political harmonisation?

The Issue

There is little, if any, doubt that the issue of how best to manage the spread and existence of nuclear weapons has occupied the international community since such weapons were used to destroy the Japanese cities of Hiroshima and Nagasaki in 1945. States have consistently sought to ensure that these weapons never be used again. To achieve that aim, the international community of states has sought to limit the number of states with nuclear weapons capabilities. The primary means through which they have exerted a measure of control over the spread and development of nuclear arms has been by the negotiation of international legal instruments: treaties, or agreements.

The original and cornerstone multilateral treaty—the most widely ratified security treaty after the Charter of the United Nations—is the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT).1 It primarily counters nuclear proliferation by establishing two state groupings: nuclear weapon states (NWS) and non-nuclear weapon states

1 Treaty on the Non-Proliferation of Nuclear Weapons, March 5, 1970, 729 UNTS 161.

(NNWS). These two groups then commit, in Articles I and II respectively, to never share and never seek to acquire nuclear weapons or nuclear weapons-related technology. This is known as the ‘grand bargain’ and is arguably what froze the number of legitimate NWS at five.2 In exchange for not seeking to acquire nuclear weapons, NNWS can receive assistance to develop nuclear energy for peaceful purposes.3 If they take this option, they must negotiate a subsequent ‘safeguards agreement’ with the International Atomic Energy Agency (IAEA).4 As part of the grand bargain, all states (NWS in particular), are obliged to work to end the nuclear arms race. They must also work towards a treaty on complete and general disarmament.

The NPT mandates negotiation of the following types of treaties: bilateral safeguards agreements (Art. III(4)); bilateral agreements on technology and material sharing for peaceful use of nuclear weapons (Art. V); regional agreements such as nuclear- weapons-free zones agreements (Art. VII); a test ban treaty (Preamble) and a comprehensive treaty on complete and general disarmament (Art. VI).5 These subsequent treaties all address issues that relate to, and support, nuclear non- proliferation: nuclear energy for peaceful purposes (two provisions), nuclear-weapons- free zones and disarmament. The original NPT treaty directs states to negotiate and conclude a subsequent treaty on complete and general disarmament via Article VI:6

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the arms race at an early

2 Ibid., Article IX(3). The US, UK, France, China and Russia are designated nuclear weapon states according to Art. IX(3) ‘a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967’. There are also four outlier nuclear weapons-capable states that are not party to the NPT: India, Pakistan, Israel and North Korea whose withdrawal in 2003 remains in dispute at the United Nations General Assembly. Iran is a non-nuclear weapon state party to the NPT (http://disarmament.un.org/treaties/t/npt/text). 3 Ibid., Article IV, ‘the right to the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy’ (http://disarmament.un.org/treaties/t/npt/text). 4 Ibid., Article III, ‘for the exclusive purpose of verification … with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices’ (http://disarmament.un.org/treaties/t/npt/text). 5 Ibid. Article V provides that states can negotiate through an appropriate international body, or bilaterally to receive benefits related to nuclear energy for peaceful purposes; Article VII provides for regional treaties to ‘assure the total absence of nuclear weapons in their respective territories’ (http://disarmament.un.org/treaties/t/npt/text). 6 Ibid., Article VI.

date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.7

The problem arresting state parties is that no such subsequent treaty to the NPT has succeeded in entering into force. Between 1945 and the opening for signature of the NPT in 1968, the issue of disarmament repeatedly proved too difficult to settle and was, by inclusion of Article VI in the NPT treaty text, delayed to a later stage. Since the entry into force of the NPT in 1970, there have been several concerted attempts to comply with the provision to negotiate and conclude a subsequent treaty on disarmament—but none has succeeded.

Other agreements mandated by the original NPT have subsequently emerged. These include bilateral safeguard agreements to verify that a state’s nuclear program is for peaceful purposes and regional weapons-free zone treaties. How have these agreements successfully entered into force but not treaties on complete and general disarmament? An obvious political explanation would be that it has not been in the interests of the five NWS to conclude such a treaty. Even if a power and ‘interest’-based perspective can account for the fact that a treaty on general and complete disarmament has never been achieved it cannot, however, readily account for the processes that have taken place. What is inadequate about this interest-based reasoning is that it does not explain how or why NWS have participated in negotiations for a subsequent treaty on disarmament or what impact such participation has had on the NPT itself.

NWS have engaged in the negotiation processes of two out of three subsequent multilateral treaties on disarmament: the Comprehensive Test Ban Treaty and the Treaty on Fissile Materials. The former has opened for signature but has yet to enter into force and the treaty text of the latter has yet to be finalised.8 The third subsequent treaty is the Treaty on the Prohibition of Nuclear Weapons (TPNW), also known as the ‘Ban treaty’,

7 Ibid. 8 Comprehensive Nuclear Test Ban Treaty, opened for signature 24 September, 1996, 35 ILM 1439, https://www.ctbto.org/the-treaty/treaty-text/. Letter dated 9 April 2015 from the Permanent Representative of France to the Conference on Disarmament addressed to the Acting Secretary-General of the Conference transmitting a draft Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices prepared by the Government of France, “Draft Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices,” 13 April 2015, CD/2020, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/076/39/PDF/G1507639.pdf?OpenElement.

which opened for signature in 2017.9 Its precursor, the Model Nuclear Weapons Convention (NWC), was drafted by several international non-governmental organisations (NGOs) and adopted by the UN General Assembly in 1997 and again in 2008.10 The permanent five members of the UN Security Council (P5) have not engaged with the NWC or TPNW. It remains to be seen how they will engage with the newly adopted ‘Ban treaty’ at the next NPT review conference in 2020. To date, NWS have demonstrated a disdain for the comprehensive approach to disarmament, instead preferring an incremental or step-by-step approach. Neither approach has resulted in compliance with Article VI of the NPT, the provision that mandates negotiation and conclusion11 of a subsequent disarmament treaty.

A treaty providing for complete and general disarmament is yet to be negotiated by NWS, those states that maintain nuclear weapons arsenals. Presumably, if NNWS parties had known at the time of negotiation of the NPT that they would never convince NWS to agree to a subsequent treaty on complete and general disarmament, that all state parties to the NPT would never be able to successfully negotiate and conclude a subsequent treaty, then they would never have agreed to the treaty text as inclusive of Article VI. To knowingly include a provision that could not be implemented or complied with would itself constitute derogation of pacta sunt servanda, a central principle of international law that means ‘treaties shall be complied with’.12 Therefore,

9 Treaty on the Prohibition of Nuclear Weapons, opened for signature September 20, 2017, https://treaties.un.org/doc/Treaties/2017/07/20170707%2003-42%20PM/Ch_XXVI_9.pdf. 10 Model Nuclear Weapons Convention (1997) drafted by International Association of Lawyers against Nuclear Arms (IALANA), International Network of Engineers and Scientists against Proliferation (INESAP) and International Physicians for the Prevention of Nuclear War (IPPNW), UNGA A/C.1/52/7 UNGA, “General and Complete Disarmament,” 52nd session, Agenda item 71, November 17, 1997. http://undocs.org/A/C.1/52/7; Model Nuclear Weapons Convention (2007) drafted by International Campaign to Abolish Nuclear Weapons (ICAN). ICAN was established after a merge of IALANA, INESAP and IPPNW and ‘is a coalition of non-government organizations in one hundred countries.’ UNGA Doc A/62/650, “Letter dated 17 December 2007 from the Permanent Representatives of Costa Rica and Malaysia to the United Nations, addressed to the Secretary-General,” 62nd session, agenda item 98, January 18, 2008. http://lcnp.org/mnwc/mNWC_2007_Unversion_English_N0821377.pdf 11 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports, 1996, Decision F, 267, http://www.icj-cij.org/docket/files/95/7495.pdf. The International Court of Justice (ICJ) Advisory Opinion of 1996 on the Legality of Nuclear Weapons directed that states must bring to conclusion negotiations on nuclear disarmament, ‘negotiations cannot be an end in itself’. 12 Andrew Solomon, “General Principles of International Law: Pacta Sunt Servada,” International Judicial Monitor, September 2008, http://www.judicialmonitor.org/archive_0908/generalprinciples.html.

we must expect that a subsequent disarmament treaty remains possible because states are obliged to comply with the provision in Article VI of the NPT that instructs them to conclude one.

‘The NPT is currently the only international treaty mandating multilateral negotiations of nuclear disarmament’.13 As the international legal agreement in place that manages and preserves nuclear order, it follows that any subsequent agreement must work with, and not against, its provisions and principles. Preservation of international order is essential because mismanagement of nuclear weapons control poses an existential threat to all. The NPT has constrained proliferation to a degree and, hence, has preserved order since it entered into force in 1970. Any subsequent treaty that significantly erodes, alters or replaces the existing nuclear order will likely create uncertainty and thereby increase security dangers. Therefore, any treaty subsequent to the NPT must integrate in the legal sense through treaty text provisions and must politically harmonise with it through consensus agreement to the principles that underpin cooperation. How, then, can the principles and provisions of a subsequent treaty be assessed in terms of their harmonisation and integration with the original treaty?

A subsequent treaty on disarmament should not ignore, circumvent or detract from the provisions and principles contained in the NPT. This is because the mandate for the subsequent treaty is provided for in the original treaty and can, therefore, be thought of as a second-level treaty obligation.14 The parent–child, predecessor–successor or original–subsequent nature of the relationship suggests that the original treaty should be strengthened—never weakened—by the subsequent treaty. This may well prove to be a false assumption. However, the NPT persists as the primary means by which states manage nuclear weapons-related issues and all initiatives and developments in the nuclear sphere since 1970 refer to it as such and reinforce this role.

13 Ray Acheson, “Banning Nuclear Weapons: Principles and Elements for a Legally Binding Instrument,” 1st ed., Women’s International League for Peace and Freedom (2017), 10, http://wilpf.org/wp-content/uploads/2017/03/Banning-Nuclear-Weapons-Principles-and-Elements- for-a-Legally-Binding-Instrument.pdf. 14 Georg Nolte, Report 3, “Subsequent Agreements and Subsequent Practice of States Outside of Judicial or Quasi-Judicial Proceedings,” Third Report for the ILC Study Group on Treaties Over Time in Treaties and Subsequent Practice, ed. Georg Nolte (Oxford: Oxford University Press, 2013), 315.

The Task Ahead

How can we best examine the international legal nuclear order to better understand not only why, but also how, subsequent disarmament treaty developments have failed to enter into force? To do so, we must find a way to systematically examine interactions between the original and subsequent treaties. Interaction refers to the degree to which provisions and principles contained in the subsequent treaties augment and strengthen, or detract from and weaken, the original treaty. Integration and harmonisation between treaties is not a zero-sum game with one defeating the other; rather the answers lie in the degree to which certain provisions and principles of the subsequent treaty complement and agree with those of the original treaty. Answering this question will both demonstrate and provide a model of a comparative process between original and subsequent treaties that incorporates interaction between legal and political dynamics.

Further, how might we consider the potential of the NPT to be built upon to deal with the issue of disarmament, which was regarded as a secondary issue at the time? Is there a litmus test for assessing whether a subsequent multilateral disarmament treaty can integrate and harmonise with the existing treaty? These two interrelated questions inform this project. Supplementary ways to express the questions central to this project are: Through what means can we methodically examine treaty evolution, development and progression within a single legal regime? How can we access, via extrapolation of principles, specific elements of the original and subsequent treaties so that the question of integration and harmonisation between them can be answered? If, and when, a subsequent disarmament treaty enters into force, how can we best assess how it integrates and builds upon the original treaty?

These questions give rise to the following overall research problem: How might a subsequent treaty be interpreted to better understand how it integrates and harmonises with the original 1968 NPT? This question is broad in that it simultaneously encapsulates both political and legal aspects of the harmonisation and integration of a subsequent treaty with the original that mandated its negotiation.

The political aspect refers to harmonisation of state interests and necessarily addresses state behaviour and interstate cooperation primarily by interpreting the original and subsequent treaty negotiation processes. A treaty interpretation approach that

encapsulates political aspects will necessarily account for the establishment of a power structure by an original treaty and will interpret any changes to that power structure that might occur in response to the subsequent treaty. Interpretation of the legal aspect is the more common of the two interpretation approaches and refers to the degree to which the treaty texts integrate. This approach will examine texts for the ‘object and purpose’ of the original and subsequent treaties and will consider the extent to which substantive provisions of the subsequent treaty negate or reinforce provisions of the original treaty. The legal approach is textual and refers to integration, while the political approach is contextual and refers to harmonisation. To adequately answer the research question, we will need to utilise a theoretical framework that simultaneously encapsulates both political and legal approaches. To select the theoretical framework that best suits this purpose, literature on general treaty interpretation and associated theories will be surveyed.

Literature Relevant to Multilateral Treaty Interpretation in Relation to Treaty Integration and Harmonisation

There is currently no coherent body of literature concerning treaty integration and harmonisation per se, but that of greatest relevance can be grouped under three headings: a legal positivist approach to treaty interpretation, scholarship on the fragmentation of international law, and writings on multilateralism and governance. Each will be examined in turn.

Positivist Approach

The legal, positivist framework requires reading the 1969 Vienna Convention on the Law of Treaties.15 Traditional positivist treaty text analysis attempts to ascertain and reveal the ‘object and purpose’ of specific articles.16 Articles 31–33 provide the rules on single and subsequent treaty interpretation. Building on these rules, the program of work of the International Law Commission (ILC) was expanded in 2007 to more definitively address the issue of ‘Subsequent Agreement and Practice with respect to

15 Vienna Convention on the Law of Treaties (with annex), May 23, 1969, 1155 UNTS 331, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf. 16 David S. Jonas and Thomas N. Saunders, “The Object and Purpose of a Treaty: Three Interpretive Methods,” Vanderbilt Journal of Transnational Law 43, no. 3 (2010): 565–609.

Treaties’. This has resulted in five annual reports.17 These documents on ‘treaties over time’18 present a non-exhaustive account of the jurisprudence of judicial and quasi- judicial bodies in which subsequent agreements and practice were invoked or used. They also list instances of subsequent state practice that are unrelated to any jurisprudence by independent bodies.19

The third ILC study group report concentrates on subsequent agreement and practice as forms of action in international relations and, as such, might be expected to provide detail pertinent to the research question; however, the scope of this report is limited.20 It does not address subsequent agreements or practice ‘relating to constituent instruments of international organisations and by their organs’.21 Nor does the report address formal treaty amendments, subsequent self-standing treaties, legal effects on other treaties or secondary treaty obligations.22 The latter are defined as ‘obligations which the parties to a treaty create pursuant to a specific procedure which is provided for in the treaty itself’23—precisely what Article VI of the NPT creates for state parties. As these and the other factors mentioned are not examined, the ILC reports do not provide a practicable framework for analysing integration between the principles and provisions of the

17 Georg Nolte, “First report on Subsequent Agreements and Subsequent Practice in Relation to treaty Interpretation,” March 19, 2013, A/CN.4/660, http://legal.un.org/docs/?symbol=A/CN.4/660; Georg Nolte, “Second Report on Subsequent Agreements and Subsequent Practice in Relation to treaty Interpretation,” March 26, 2014, A/CN.4/671, http://legal.un.org/docs/?symbol=A/CN.4/671; Georg Nolte, “Third Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties,” April 7, 2015, A/CN.4/683, http://legal.un.org/docs/?symbol=A/CN.4/683; Georg Nolte, “Fourth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties,” March 7, 2016, A/CN.4/694, http://legal.un.org/docs/?symbol=A/CN.4/694. Georg Nolte, “Fifth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties,” February 28, 2018, A/CN.4/715, http://legal.un.org/docs/?symbol=A/CN.4/715 18 In 2012, the International Law Commission decided to change the format of the work on this topic and its title from ‘Treaties over Time’ to ‘Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties’ in 2013 (http://legal.un.org/ilc/guide/1_11.shtml). 19 Georg Nolte, “Introduction” in Treaties and Subsequent Practice, ed. Georg Nolte (Oxford: Oxford University Press, 2013), 5. 20 Nolte, “Report 3,” 307–386. 21 Ibid., 311. 22 Ibid., 316. 23 Ibid., 315.

original NPT and any subsequent ‘in-force’ disarmament treaties. A second reading of the 13 draft conclusions and commentaries is provided for in the fifth report of February 2018.24 This will give states, international organisations and other relevant actors time to prepare written observations that may well prove applicable and could potentially become relevant to the task at hand.

When a subsequent treaty fails to enter into force, it presumably also fails to legally integrate with the original. This is because the subsequent treaty has not created legal obligations for state parties. However, there is scope for political harmonisation between the original treaty and a subsequent treaty that has failed to enter into force. The Comprehensive Test Ban Treaty, while not legally in force is perhaps politically harmonised in the nuclear arms control regime. The causes of this failure to integrate or enter into force may be varied but are nonetheless definitive. To better understand why a subsequent treaty fails to legally integrate with the original, an interpretive process must be undertaken. This process must, by necessity, compare aspects of both treaties.

The Vienna Convention on the Law of Treaties in Article 31(1) provides a seminal overarching principle specifically related to treaty interpretation that has been declared customary international law:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.25

Crema argues that the principles explicitly placed at the base of the Vienna rules on interpretation are those of ‘good faith’ and, implicitly, indicate that one must prioritise the primacy of state parties’ intentions.26 This raises the interpretive ‘knot’ of whether one practices static or evolutive interpretation, with the latter occurring when the meaning of the treaty text changes over time. This is not a new question. An attempt to interpret the term ‘allies’ in the treaty between Rome and Carthage saw Grotius and

24 Georg Nolte, “Fourth Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties,” March 7, 2016, A/CN.4/694, 46, http://legal.un.org/docs/?symbol=A/CN.4/694. 25 Vienna Convention, Article 31 (1). 26 Luigi Crema, “Subsequent Agreements and Subsequent practice within and outside the Vienna Convention,” in Treaties and Subsequent Practice, ed. Georg Nolte (Oxford: Oxford University Press, 2013), 27.

Vattel argue about which should take precedence: the intention of state parties at the time the treaty was concluded (static) or their present intentions (evolutive).27 Grotius preferred the current meaning of the terms of the treaty, while Vattel examined intentions at the time of the treaty’s conclusion. ‘There was no agreement at the outset and no agreement has been reached ever since’.28

Crawford takes issue with the treaty interpretation gap that remains for those seeking guidance from the Vienna Convention regarding subsequent agreements and practices. While applauding the contribution of Humphrey Waldock29 to garnering the consensus to the Vienna Convention’s treaty text, he queries why the question of the supersession of treaties by subsequent practice was not included. He then provides the answer: ‘it is not there—not because it cannot happen—but because it is not part of the law of treaties, it is part of the law of custom, which the Convention was not codifying’.30 The ‘good faith’ and ‘intentions of state parties’ principles of the Vienna Convention on the Law of Treaties (VCLT), while clearly still open to interpretation, nevertheless underpin treaty interpretation in general terms. As such, they are applicable as part of an approach to original and subsequent treaty integration and harmonisation. A systemic treaty interpretation approach could address the issue of how subsequent treaties are interpreted in light of preceding treaties. McLachlan considers integration with general principles of international law integral to understanding and operationalising Article 31(3) for treaty interpretation purposes to broadly contribute to the work of the ILC on subsequent practice and agreements that use the VCLT as a guide.31

27 Christian Djeffal, Static and Evolutive Treaty Interpretation: A Functional Reconstruction (Cambridge: Cambridge University Press, 2015), 349. 28 Ibid. 29 Fourth and final Special Rapporteur Sir Humphrey Waldock is credited with orienting work towards the preparation of draft articles capable of serving as a basis for the VCLT. His six reports enabled the ILC in 1966 to submit a final draft to the UNGA and recommend that the UNGA convene an international conference to conclude a convention on the subject. http://legal.un.org/avl/ha/vclt/vclt.html. 30 James Crawford, “A Consensualist Interpretation of Article 31(3) of the Vienna Convention on the Law of Treaties” in Treaties and Subsequent Practice, ed. Georg Nolte (Oxford: Oxford University Press, 2013), 29. 31 Campbell McLachlan, “The Principle of Systemic Integration and Article 31(3)(C) of the Vienna Convention.” International and Comparative Law Quarterly 54 (2005): 279–320.

Article 30 of the VCLT addresses treaty conflict and provides guidance on the ‘application of successive treaties relating to the same subject matter’.32 This may help the development of an approach to understanding treaty integration. As applicable to nuclear arms control agreements, Article 30(2) reads:

When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.33

It must be restated at this point that all subsequent agreements and initiatives in the area of nuclear arms control refer to the primacy of the NPT.34 Armed with this fact, the

32 Vienna Convention, Article 30. 33 Ibid., Article 30(2). 34 Comprehensive Test Ban Treaty Preamble: ‘Affirming the purpose of attracting the adherence of all States to this Treaty and its objective to contribute effectively to the prevention of the proliferation of nuclear weapons in all its aspects, to the process of nuclear disarmament and therefore to the enhancement of international peace and security’ (https://www.ctbto.org/the- treaty/treaty-text/); Model Nuclear Weapons Convention Article XVIII A. Relation to Other International Agreements 1: ‘Nothing in this Convention shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under the United Nations Charter; the Treaty on the Non- Proliferation of Nuclear Weapons’, (http://lcnp.org/mnwc/mNWC_2007_Unversion_English_N0821377.pdf); Draft Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices Preamble: ‘Convinced that a multilateral, non-discriminatory and international effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices is a necessary step towards the realization of a world without nuclear weapons and will greatly contribute to disarmament and non-proliferation of nuclear weapons in the context of a gradual and systematic approach’ (http://www.un.org/en/conf/npt/2015/pdf/NPT%20CONF2015%20WP.28_E.pdf); International Atomic Energy Agency, Model Additional Protocol: ‘The Structure and Content of Agreements between the Agency and States Required in Connection with the Treaty on the Non- Proliferation of Nuclear Weapons. The Board of Governors has requested the Director General to use the material reproduced in this booklet as the basis for negotiating safeguards agreements between the Agency and non-nuclear weapon States party to the Treaty on the Non-Proliferation of Nuclear Weapons’ INFCIRC/153/Corr (http://www.iaea.org/inis/collection/NCLCollectionStore/_Public/44/089/44089080.pdf); South Pacific Nuclear Free Zone Treaty Preamble: ‘Reaffirming the importance of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) in preventing proliferation of nuclear weapons and in contributing to world security; Noting, in particular, that Article VII of the NPT recognises the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories’ (http://disarmament.un.org/treaties/t/rarotonga/text); Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean: ‘That the military denuclearization of Latin America…will also constitute a significant contribution towards preventing the proliferation of nuclear weapons and a powerful factor for general and complete disarmament’ (http://disarmament.un.org/treaties/t/tlatelolco/text);

issue of treaty conflict between original and successive treaties and hence, the literature on treaty conflict, can be eliminated from consideration. While scholarly discussion of Article 30 often centres on its shortcomings,35 this body of literature is irrelevant here due to the fact that every nuclear arms control initiative to emerge since the entry into force of the NPT in 1970, including the 2017 TPNW, explicitly asserts compatibility with the original treaty.

The three main schools of thought on treaty interpretation are the intention of state parties (or founding fathers) school, the textual (or ordinary meaning of words) school and the teleological (or aims and objects) school.36 White suggests that the VCLT represents a post-modernist approach in which all three schools are equally represented,37 while McDougal finds it too pro-textual: it cannot widen the context to account for the ‘nature of the treaty and its fit into the international legal and political system’.38

To reinforce this point, Special Rapporteur Georg Nolte says the characteristic feature of the subsequent agreement does not lie in its form but rather in its derivative

Treaty on the Southeast Asia Nuclear Weapon Free Zone Preamble: ‘Reaffirming the importance of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) in preventing proliferation of nuclear weapons and in contributing to world peace and security; Recalling Article VII of the NPT which recognises the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories’ (http://disarmament.un.org/treaties/t/bangkok/text); African Nuclear Weapon Free Zone Treaty Preamble: ‘Reaffirming the importance of the Treaty on the Non-Proliferation of Nuclear Weapons (hereinafter referred to as the NPT) and the need for the implementation of all its provisions’ (http://disarmament.un.org/treaties/t/pelindaba/text); Central Asian Nuclear Weapon Free Zone Treaty Preamble: ‘Reaffirming the obligations set out in the NPT’ (http://disarmament.un.org/treaties/t/canwfz/text). 35 See for example: Surabhi Ranganthan, “Between Philosophy and Anxiety? The Early International Law Commission, Treaty Conflict and the Project of International Law,” British Yearbook of International Law 83, no. 1 (2013): 82–114; Jan Klabbers, Treaty Conflicts and the European Union (Cambridge: Cambridge University Press, 2009); Guyora Binder, “The Dialectic of Duplicity: Treaty Conflict and Political Contradiction,” Buffalo Law Review 34, no. 2 (1985): 329–549. 36 See G.G. Fitzmaurice, “The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points,” British Yearbook of International Law 28 (1951): 1; Humphrey Waldock, “Law of Treaties,” Yearbook of the International Law Commission (1964), 53 and Maarten Bos, “Theory and Practice of Treaty Interpretation,” Netherlands International Law Review 27 (1980): 1–15. 37 Nigel D. White, “Interpretation of Non-Proliferation Treaties” in Non-Proliferation As A Special Regime, ed. D.H.R.M. Joyner (Cambridge: Cambridge University Press, 2012), 90. 38 Myers S. McDougal, “The International Law Commission’s Draft Articles upon Interpretation: Textuality Redivivus,” American Journal of International Law 61 (1967): 992.

character, in its ‘regard’ to a treaty. In this way, it can be identified by some form of subordination to the treaty to which it refers.39 This ‘subordination’ is further confirmed by the view that subsequent agreements and practices are treated as arrangements intended to further clarify aspects of the original treaty.40 However, the ILC reports fail to account for the situation in which an original treaty creates a second-level treaty obligation, as is the case with the NPT. We must, thus, look elsewhere for a theoretical framework that can better accommodate subsequent treaty integration and harmonisation in comparative terms.

Fragmentation of International Law

The steady increase of multilateral treaties during the twentieth century and the emergence of specialist systems such as ‘trade law’, ‘human rights law’, and even more highly specialised systems such as ‘international refugee law’ or ‘investment law’, see each possessing its own principles and institutions. This can be described as the fragmentation of international law, a phenomenon that potentially results in conflicts between rules or rule-systems, forum shopping, erosion of general international law, emergence of conflicting jurisprudence or loss of legal security.41 This is the next body of literature worth canvassing as it may offer clues as to how best to interpret original and subsequent treaties from the same legal regime.

Nuclear arms control law is comparatively contained and would not generally be considered fragmented. Black-Branch and Fleck suggest that nuclear weapons and non- proliferation law should be treated as a subject discipline in its own right—distinct from other fields of international law and discrete from conventional weapons law and international humanitarian law.42 If we examine the question of subsequent treaties in

39 Nolte, “Report 3,” 309. 40 Ibid. 41 Martti Koskenniemi, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,” UNGA 58th session, April 13, 2006, A/CN.4/L.682, 12, http://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf. 42 Jonathan L. Black-Branch and Dieter Fleck, chair and rapporteur, respectively, of the International Law Association’s Nuclear Weapons, Non-Proliferation and Contemporary International Law Committee. See: Jonathan L. Black-Branch and Dieter Fleck (eds.), “Nuclear Weapons, Non- Proliferation and Disarmament: A Comprehensive Audit of Relevant Legal Issues and International Concerns” in Nuclear Non-Proliferation and International Law, vol. 2 (Netherlands: T.M.C. Asser Press, 2014), 2.

the nuclear arms control regime, we must take into account the fact that (according to some analysts) the regime has unique characteristics. The ILC report suggests ‘that each rule-complex or regime comes with its own principles, its own form of expertise and its own “ethos”’.43 The presumption that principles of subsequent treaties may be unique and differ from those of the original treaty is likely to form an essential part of any explanation that seeks to better understand the process of subsequent treaty integration and harmonisation. Acknowledging the potential deviance between the principles that underpin both treaties is fundamental to any comparative interpretation approach.

The 2006 ILC report on fragmentation and diversification of international law and the resulting difficulties extends this and suggests that a process of harmonisation or systemic integration occurs to avoid normative conflict.44 It is from this body of literature that we derive the terms ‘integration’ and ‘harmonisation’ to describe the relative connection between original and subsequent treaties. According to the ILC, harmonisation also prevents a state from consenting to an obligation that derogates from existing obligations, thereby ensuring compatibility between original and subsequent agreements.45 The report notes ‘astonishingly little judicial or arbitral practice on normative conflicts’. Borgen explains that states are reluctant to abdicate power to a third party to negotiate issues of apparent conflict.46 The results of contextual bargaining are also difficult to use as a basis for a customary rule; negotiation is more likely to aim for a pragmatic solution that re-establishes harmony.47

Held and Young refer to issues of diversification and expansion of international law to argue that governance problems exist across financial, environmental and security areas as a result of ‘regime proliferation’. They claim this has led to governance fragmentation and the need for a reformulation of the existing multilateral order and emphasise that an international response to shared problems is hindered by the net of

43 Koskenniemi, “Fragmentation of International Law,” 14. 44 Ibid., 25–28. 45 Report of the International Law Commission 69th Session 2017, UNGA Official Records 72nd session, Supplement no. 10 A/72/10, Guideline 9, 155-156, http://legal.un.org/docs/index.asp?symbol=A/72/10&referer=http://legal.un.org/ilc/reports/2017/&L ang=E 46 Christopher J. Borgen, “Resolving Treaty Conflicts,” George Washington Law Review 37, no. 3 (2005): 605-606. 47 Borgen, cited in Koskenniemi, “Fragmentation of International Law,” 27.

treaties that are already in place.48 While instructive on the crisis of multilateralism, which is generally viewed as a web of stultifying and constraining factors, their work offers few insights into how treaty harmonisation or integration might occur.

This project seeks a method to interrogate an original and subsequent treaty for the principles and provisions contained therein to analyse how disarmament treaties subsequent to the NPT integrate and harmonise with it. The three subsequent treaties are: the Comprehensive Test Ban Treaty, the Treaty on Fissile Materials and the Treaty on the Prohibition of Nuclear Weapons that is based on the Model NWC. Thus far, international legal materials on treaty interpretation and subsequent agreement, practice and fragmentation have not provided a complete approach to the task at hand. This is because the literature only examines the issues in legal terms and, therefore, fails to account for political dynamics.

Integration and Harmonisation

There is a correlation between the ILC’s use of the terms ‘integration’ and ‘harmonisation’ and their use in this thesis. These terms were chosen to describe the legal and political processes inherent in the negotiation of original and subsequent nuclear arms control treaties. The focus is to better understand how a subsequent treaty might build on the NPT and whether the NPT might possess certain characteristics that predisposed it to be built upon. The thesis seeks criteria that might act as prerequisites for this. The terms `legal integration’ and `political harmonisation’ highlight the interconnectivity of law and politics. Although the terminology being adopted is somewhat unique to this thesis; however, the ILC has more recently begun referring to ‘the interpretative principle of harmonization and systemic integration’.49 It is defined in this way:

The first sentence also makes specific reference to the principles of “harmonization and systemic integration”, which were accorded particular

48 David Held and Kevin Young, “From the Financial Crisis to the Crisis of Global Governance,” in Global Governance at Risk, eds. David Held and Charles Roger (Cambridge: Polity Press, 2013), 170–172. 49 UNGA, Report of the International Law Commission, 69th session, May 1 – June 2 and July 3 – August 4, 2017, A/72/10. 165.

attention in the conclusions of the work of the Study Group.50 As noted in conclusion (4) on harmonization, when several norms bear on a single issue they should, to the extent possible, be interpreted so as give rise to “a single set of compatible obligations”. Moreover, under conclusion (17), systemic integration denotes that “whatever their subject matter, treaties are a creation of the international legal system”. They should thus be interpreted against the background of other international rules and principles.51

The term ‘systemic integration’ refers to Article 31(3)(c) of the Vienna Convention. It relates to whether subsequent practice or agreements is interpreted as if consistent with existing international law. Legal integration, as used in this thesis, incorporates the ILC notion of consistency with existing international law but refers more specifically to the absence of conflict between provisions of an original and subsequent treaty within a single legal regime. The ILC refers to harmonisation as a principle related to norms. In this thesis, harmonisation borrows from this definition yet is denoted by continued acceptance of an ‘ideology’ best understood as reiteration of a principle or small set of principles. Harmonisation is described by its relativity to politics and integration is described by its relativity to law.

Interpretation of the negotiation processes of subsequent treaties is an interdisciplinary process incorporating the legal, the political and arguably, the sociological and psychological aspects. To grasp the dynamics of this complex process and simultaneously assess legal integration and political harmonisation between the treaties requires a singularly original theoretical framework. An innovative approach that incorporates legal and political dynamics is required. To continue the search for this, literature on governance and the concept of multilateralism that seeks to bridge the law– politics divide will be examined next.

50 ILC, “Conclusions of the work of the study group on the fragmentation of international law: difficulties arising from the diversification and expansion of international law,” Yearbook of the International Law Commission II (2006), Part II. 51 ILC Report, 69th session, 165.

Multilateralism and Governance

According to Downs, Rocke and Barsoom, literature that focuses on the supply side of multilateralism and discusses how multilateral institutions are likely to evolve is rare.52 As we consider how a subsequent treaty might best be designed to harmonise with the original, we may consider participation and policy-preference variables. Downs et al. examines the effect of membership models in multilateral institutions.53 By designating these organisations as either ‘inclusive’ from the outset or as ‘designed to grow’, they argue that a sequential, rather than a ‘one shot’, strategy is more robust and will likely lead to deeper levels of cooperation.54 Gilligan challenges the claims of Downs et al. by arguing, first, for the apparent desire for universalism found in treaties such as the General Agreement on Tariffs and Trade (GATT) and second, for the setting of individual policy levels, stating that there should be no trade-off when states are allowed to set different policies.55 Gilligan provides a practical bargaining model but only refers to treaties where states have the potential to set individual policies (e.g., monetary and environmental treaties). Therefore, work of this nature is not applicable to arms control treaties that seek to proscribe in a finite sense. Of note, nonetheless, is Gilligan’s statement that:

[t]o date there has been little or no effort at modeling the creation of multilateral agreements formally. One reason for the lack of formal study of multilateral agreements is that the problem has been thought to be too complex analytically.56

Gilligan asserts that the modelling of a single multilateral instrument is rare and he suggests that literature tracking progression from an original to a subsequent treaty may well be even more difficult to locate.57

52 With the exception of literature on the enlargement of the EU and monetary unification and literature on the expansion of NAFTA. See: G. W. Downs, D. M. Rocke, and P. N. Barsoom, “Managing the Evolution of Multilateralism,” International Organization 52, no. 2 (1998): 397. 53 G. W. Downs, D. M. Rocke, and P. N. Barsoom, “Managing the Evolution of Multilateralism,” International Organization 52, no. 2 (1998): 397–419. 54 Ibid., 413. 55 Michael J. Gilligan, “Is there A Broader-Deeper Trade-Off in International Multilateral Agreements,” International Organization 58, no. 3 (2004): 461. 56 Ibid., 461. 57 Ibid.,

The work of Oran Young on regime formation and international governance may provide insights to assist answering the question of subsequent treaty integration.58 In the book Creating Regimes: Arctic Accords and International Governance, he seeks to explore the political dynamics of three distinct stages in the process of regime formation: agenda formation, negotiation and operationalisation.59 Young’s work is relevant as it applies to international cooperation and the dynamics of governance on an issue of mutual concern. It is premised on the fact that, although rules may exist in the form of treaties and conventions, an empirical analysis will also include what states actually do and not only what they agree to do.60 The integration of political action and legal obligation is precisely what we seek to account for as we examine subsequent treaty development. We also seek to extrapolate the principles that underpin cooperation from the original and subsequent treaties. We seek a theoretical approach that, in its reading of international law, identifies consensus to a fundamental principle or idea.

In a broad appraisal of the discipline, Koskenniemi and Crawford consider the role and significance of ideas such as universalism, humanitarianism or sovereignty as contributing a philosophical element for practitioners.61 Koskenniemi sees international law as structured by the nature of ideas themselves. In his view, a legal idea has two sides: it is utopian and aspirational, but to take effect the idea must also be concrete and real.62 This explains the dichotomous nature of international law, the tension between balancing the normative and concrete nature of a legal idea with idealist aspirations and realist awareness.63 The treaty, custom or decision of an authoritative institution64 is the ‘external surface—the canvas’, the concrete part of the idea that prevents it from being

58 See: Oran R. Young, Creating Regimes: Arctic Accords and International Governance (New York: Cornell University Press, 1998) and Oran R. Young and Gail Osherenko, Polar Politics: Creating International Environmental Regimes (New York: Cornell University Press, 1993). 59 Oran R. Young, Creating Regimes: Arctic Accords and International Governance (New York: Cornell University Press, 1998), viii. 60 Ibid., ftnt 11, 15. 61 James Crawford & Martti Koskenniemi. “Introduction,” in The Cambridge Companion to International Law, eds. James Crawford & Martti Koskenniemi (Cambridge: Cambridge University Press, 2012), 1–21. 62 Martti Koskenniemi. “International Law in the World of Ideas,” in The Cambridge Companion to International Law, eds. James Crawford & Martti Koskenniemi (Cambridge: Cambridge University Press, 2012), 60–61. 63 Ibid., 61. 64 A general reference to the sources of international law

an abstraction or sociological description.65 This metaphorical canvas as representative of the concrete or real side of an international legal idea is what we actually see in the political and economic world.66 In this way Koskenniemi confirms that treaties not only contain agreed upon ideas or principles but are themselves a concrete representation thereof. In this way, the treaty combines the aspirational with the practicable, which suggests that treaties may be interpreted for the ideas or principles contained therein. This is an important and useful insight that will underpin, and contribute to, the necessary framework to enable comparative analysis of the original and subsequent treaties.

Summary

Thus far, governance and regime formation literature has confirmed the dual nature of the multilateral treaty as both aspirational and realistic, as containing ideas or agreed upon principles and rules. Positivist treaty interpretation literature related to subsequent agreement and practice, produced by the ILC, has been found to exclude subsequent agreements emanating from secondary obligations. Additional ILC reports on the fragmentation of international law have also not directly addressed—nor theorised—the connection between original and subsequent agreements, except to discuss harmonisation and systemic integration as a principle of treaty interpretation by which states avoid incompatibility between new obligations and do not derogate from existing obligations.

In this instance, a theoretical framework is required to enable an understanding of whether an original treaty contains principles and provisions that make subsequent treaty integration and harmonisation feasible. To achieve this, we require a way to interpret the treaties’ constituent components to better understand how the two may integrate and harmonise. A theoretical approach that interprets both the legal provisions and the political processes of reaching consensus that serve as a basis for cooperation in multilateral treaties is needed. This framework must work when applied to any multilateral treaty and for any international legal regime.

65 Koskenniemi, “International Law in the World of Ideas,” 60. 66 Ibid.

What has become evident thus far is that there is neither a specific body of literature nor a theoretical framework that explicitly aids examination of how a subsequent treaty might integrate and harmonise with its predecessor. An approach that enables consideration of the compatibility between original and subsequent treaties is, therefore, vital.

International Law as Ideology and Cognitive Structures of Cooperation

A theoretical framework that will foster a comparative analysis between an original and subsequent treaty from the same international legal regime is required. A theory that meets these requirements by providing a methodology for interpreting and assessing treaty harmonisation and integration is Scott’s theory of Cognitive Structures of Cooperation (CSC). CSC theory can serve a dual purpose in addressing the issues of the integration, in the legal sense, and harmonisation, in the political sense, of a subsequent treaty with the original treaty that mandated it. Applying this theory creates a process that enables interpretation of treaty components. The real-world implications can then be elucidated by applying a hypothesis based on the central tenets of ‘International law as Ideology’ theory.

The next section will provide an overview of CSC theory, devised by Scott, which will indeed meet the requirements by offering an interdisciplinary treaty interpretation approach that synthesises political and legal aspects. The theory will enable the dissection of a treaty into its principles and provisions. This theoretical approach will aptly provide a framework that fosters comparative analysis between an original and subsequent treaty to enable discussion of treaty integration and harmonisation in the nuclear arms control regime.

Statement of CSC Theory

This section will refer to CSC theory, a political theory of treaty interpretation that draws on components of ideology theory in the social sciences.67 CSC theory moves beyond a legal reading of the treaty text to better understand the political context in

67 Shirley V. Scott, “Does the UNFCCC Fulfil the Functions Required of a Framework Convention? Why Abandoning the United Nations Framework Convention on Climate Change Might Constitute a Long Overdue Step Forward,” Journal of Environmental Law 27, no. 1 (2015): 2.

which the treaty was negotiated and the way politics and law interact during the life of the treaty regime because:68

International law is a sub-system of international politics in a way that is not true vice versa; a multilateral treaty is but one product of, and component of, international cooperation.69

As a treaty interpretation theory, CSC is situated within a grand theory developed by Scott called International Law as Ideology. In broad terms, it posits that the idea of international law can be used as a political tool70 and that it is integral to the international distribution of power.71 This then permits theorisation of the nature of a state’s political obligation to international law.72 In its portrayal of international law as virtually timeless, the ideology ‘denies the relativity of international law to current political realities … international law is [presented] as a finite set of solutions fixed for all time’.73

Ideology: Basis and Usage

From a CSC perspective, processes of international cooperation involve proposals to link agreed principles with both an issue of mutual concern and a solution. In this way, the concept of ‘ideology’ is used to theorise relationships between ideas inherent in the process of international cooperation and structures of power.74 Scott uses the term ‘ideology’ to denote the analysis of ‘an idea in relation to power’ and ‘the idea of international law in relation to global structures of power’.75 This idea of international law is underpinned by three principles, none of which is wholly true but each of which

68 Shirley V. Scott, The Political Interpretation of Multilateral Treaties (Boston: Martinus Nijhoff Publishers, 2004), 4. 69 Ibid., 108. 70 Shirley V. Scott, “International Law as Ideology: Theorizing the Relationship Between International Law and International Politics,” European Journal of International Law 5, 1 (1994): 324. 71 Ibid., 325. 72 Shirley V. Scott, “Identifying the Source and Nature of a State’s Political Obligation Towards International Law,” International Law and International Relations 1, no. 1–2 (2004–05): 49–60. 73 Scott, The Political Interpretation of Multilateral Treaties, 90. 74 Shirley V. Scott, “CSC and Link Between Norm Dynamics Literature,” email correspondence, April 29, 2015. 75 Shirley V. Scott, Building Bridges with Political Science? A Response from the Other Shore,” Australian Yearbook of International Law 16 (1995): 276.

contains a considerable amount of truth to describe the way international law can be thought of. Thus, international law can be considered objective, comprehensive, cohesive and compulsory.76 ‘It is not the verity of an ideology that matters but its acceptance by international actors as a basis for interaction’.77 How states cooperate to negotiate multilateral treaties is underpinned by this agreed upon perception of international law. This also informs how states use the idea of international law to achieve political objectives.

The term ‘ideology’ is acknowledged as a contested concept attracting misunderstanding and opprobrium.78 Scott proposes using a neutral conception of ideology coupled with a critical approach. This differs from Marx and Engels, who viewed ideology as an instrument of domination or oppression, and is unlike the work of those who highlight the positive potential of ideology to liberate the weak (e.g., advancing self-determination through decolonisation).79 Scott moves beyond the traditional dichotomy of ideology as either a true or false system of ideas to adopt a neutral and ‘critical approach to ideology [that] views ideology as a mechanism for sustaining asymmetrical power relationships’.80 While it may unite people for political action and could, thus, be considered akin to social cement, it does not necessarily create shared interests. The important distinction that Scott makes is that an ideology’s strength lies not in the genuine beliefs of the individuals involved, but in the expression of those ideas:81

CSC theory postulates that even though an ideology most often serves to reinforce unequal power relationships it is [still] a form of power at the disposal of all actors.82

In reaching this utilitarian perspective on ideology as a concept, Scott drew eclectically on the work of ideology theorists who sought to explain the relationship of ideas to

76 Ibid., 273. 77 Scott, “International Law as Ideology,” 325. 78 Michael Freeden, Ideology: A Very Short Introduction (Oxford: Oxford University Press, 2003), 3. 79 Scott, “Building Bridges with Political Science?,” 276. 80 Scott, The Political Interpretation of Multilateral Treaties, 18. 81 Ibid., 19. 82 Ibid., 18.

structures of power. Thompson’s work and critical approach have been influential.83 On the subject of ideology and power, Thompson says ‘[r]elations of domination are sustained by mobilisation of meaning which legitimates, dissimulates or reifies an existing state of affairs; meaning can be mobilised because it is an essentially open, shifting, indeterminate phenomenon’.84 Based on this notion of the fluidity and potential of meaning, Scott proceeds to theorise how ideas are integral to power structures.

To account for the relationship between structure and agency and, more specifically, how a CSC relates to a cooperative political process, Scott draws on Giddens’s theory of structuration. ‘As with all ideologies, the ideology of international law is continually reinforced by rhetoric that assumes the ideology to be true’.85 When a CSC emerges— that is, when two or more states begin the process of addressing an issue of mutual concern—it is through repeated iterations of a principle or small set of interrelated principles that structuration occurs. ‘Th[is] repeated expression of ideas [is what] both produces and at the same time constitutes the CSC structure’.86 CSC theory provides an interpretive process that describes how core principles develop into an ideology that underpins a multilateral treaty. Of absolute import when considering how the term ‘ideology’ is used according to CSC theory is that it denotes the way an idea is analysed in terms of power.

Why Cognitive Structures of Cooperation?

What began as a theory of international cooperation that was inclusive of multilateral treaties has evolved into a political theory of treaty interpretation. The CSC theoretical approach was developed through ‘dialogue between ideology theory and interstate interaction regarding Antarctic sovereignty’.87 According to Scott:

83 John B. Thompson, Studies in the Theory of Ideology (Cambridge: Polity Press, 1984). Rather than producing a systematic treatise on the nature of ideology, Thompson engaged with the work of a particular theorist in this series of essays. 84 John B. Thompson, Ideology and Modern Culture: Critical Social Theory in the Era of Mass Communication (Cambridge: Polity Press, 1990), 132; John B. Thompson, Ideology and Modern Culture: Critical Social Theory in the Era of Mass Communication (Cambridge: Polity Press, 2013). 85 Scott, “Identifying the Source and Nature,” 55. 86 Anthony Giddens, Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis (Berkeley: University of California Press, 1979): 69. 87 Scott, The Political Interpretation of Multilateral Treaties, 213.

A Cognitive Structure of Cooperation (CSC) consists of a set of inter-related cognitive elements integral to a set of political relationships centred on a particular issue of mutual concern. A CSC evolves during a process of international negotiation on an issue of mutual concern and may then be incorporated in a multilateral treaty.88

As a unit of analysis, the CSC consists solely of ideas. One of the reasons Scott provided for proposing a new unit of analysis was to simplify and untangle ‘conceptual confusion’ that has characterised the regime concept in International Relations.89 Simply put, a treaty regime refers to ‘the law contained in one or more multilateral treaties in the context of the political process of which the law is a part’.90

Perspective on Multilateral Treaties

In the first instance, a CSC theory approach requires one to consider how best to examine international law as an aspect or part of politics. In particular, one may ponder how a multilateral treaty can be examined or interpreted as part of its political context. How one views the treaty itself will necessarily be informed by a CSC theoretical approach. Unlike natural or positivist law approaches, the multilateral treaty for CSC theorists is viewed as a management device. It will be negotiated to place limits on the unchecked pursuit of a common goal. A treaty will typically not solve, but will rather manage, the issue that gave rise to the treaty.91 As a political document, a treaty can be regarded as a structure of ideas integral to the set of political relationships from which the treaty was produced.92 The treaty text reflects and alludes to those ideas but does not necessarily define them.

Purpose

If a multilateral treaty must be recognised as both a component of the system of international law and the political process of which it is a part,93 then CSC theory

88 Scott, The Political Interpretation of Multilateral Treaties, 12. 89 Ibid. 90 Shirley V. Scott, International Law in World Politics (Colorado: Lynne Reiner Publishers, 2010), 163. 91 Scott, The Political Interpretation of Multilateral Treaties, 8. 92 Scott, The Political Interpretation of Multilateral Treaties, 110. 93 Scott, The Political Interpretation of Multilateral Treaties, 7.

provides an interdisciplinary approach, bridging the fields of International Law and International Relations by theorising the politics of international law. Thereby, it has the potential to offer the following insights for each field. From an International Law perspective, CSC theory can inform our understanding of treaty strategy, treaty durability and treaty effectiveness. From an International Relations perspective, CSC theory can illuminate state (and interstate) power dynamics, motivations and interests as well as state rhetoric as it relates to action.

Scott suggests that theorisation at the level of specific treaty provisions in terms of their relationships with power, norm dissemination and contestation, and the multilateral treaty as a material source of international law, are perhaps the most significant contributions to interdisciplinary literature on the subject.94 More practically, the book A Political Interpretation of Multilateral Treaties provides eight applications by which CSC theory can assist analysts to better understand many aspects of a multilateral treaty:

1) why the treaty emerged at the time it did 2) how significant the treaty was in the political sphere 3) what may be expected of the treaty in the future 4) how to assess treaty effectiveness 5) how to devise treaty strategy 6) how best to strengthen or undermine the treaty 7) how best to modify or replace the treaty 8) how best to manoeuvre within a treaty regime.95

The book proposes the theory, details its components (known as units of analysis or CSC terms) and demonstrates the application of CSC processes to five multilateral treaty regimes.96 In subsequent publications, Scott and others have employed CSC

94 Shirley V. Scott, “Intergovernmental Organizations as Disseminators, Legitimators, and Disguisers of Hegemonic Policy Preferences: The United States, the International Whaling Commission, and the Introduction of a Moratorium on Commercial Whaling,” Leiden Journal of International Law 21, no. 3 (2008): 588. 95 Scott, The Political Interpretation of Multilateral Treaties, 4. 96 CSC theory has been developed and applied to a number of institutions including those founded on the Antarctic Treaty, the Convention on the Elimination of All Forms of Discrimination Against Women, the NPT, the Basel Convention on the Control of Transboundary Wastes and Their

theory to examine the way a hegemon disseminates policy preferences through an intergovernmental organisation (IGO),97 to consider the basis on which treaty replacement might be required,98 to demonstrate how treaties can be used by states to manage issues of mutual concern99 and to examine the way legal justification can be crafted in the image of an international law ideal.100

CSC Theory and Treaty Interpretation

When the multilateral treaty is considered both a component of the system of international law and the political process of which it is a part, then an interpretive method that synthesises the legal and political spheres is required. Other interpretive approaches tend to offer a two-step process; first law then politics (or vice versa); these may lack synchronicity.101 Treaty interpretation theories tend to offer the positivist, treaty text, article-by-article approach102 or the constructivist, norm identification, norm change and state behaviour approach.103 As a treaty interpretation theory, CSC offers a

Disposal and the International Convention for the Regulation of Whaling. See Scott, The Political Interpretation of Multilateral Treaties. 97 Scott, “Intergovernmental Organizations as Disseminators,” 581–600. 98 Scott, “Does the UNFCCC Fulfil the Functions Required of a Framework Convention?,” 1–21. 99 Shirley V. Scott, “The Political Interpretation Multilateral Treaties: Reconciling the Text with Political Reality,” New Zealand Journal of Public International Law 5 (2007): 103–119. 100 Shirley V. Scott, “The Political Life of Public International Lawyers: Granting the Imprimatur,” International Relations 21, 4 (2007): 411–426; Shirley V. Scott and Olivia Ambler, “Does Legality Really Matter? Accounting for the Decline in US Foreign Policy Legitimacy Following the 2003 Invasion of Iraq,” European Journal of International Law 13, no. 1 (2007): 67–87. These articles draw on International law as ideology (ILI) theory in relation to US justification of use of force in Iraq in 2003. 101 See for example: Robert Keohane, “International Relations and International Law: Two Optics,” Harvard Journal of International Law 38, no. 2 (1997): 487–502; Robert D. Vander Lugt, Anthony C. Arend and Robert J. Beck, International Rules: Approaches from International Law and International Relations (Oxford: Oxford University Press, 1996); Adriana Sinclair, International Relations Theory and International Law: A Critical Approach (Cambridge: Cambridge University Press, 2010). 102 See for example: Richard K. Gardiner, Treaty Interpretation (Oxford: Oxford University Press, 2008); M. Cherif Bassouni, “A Functional Approach to General Principles of International Law,” Michigan Journal of International Law 11, no. 3 (1989–90): 768; David S. Jonas and Thomas N. Saunders, “The Object and Purpose of a Treaty: Three Interpretive Methods,” Vanderbilt Journal of Transnational Law 43, no. 3 (2010). 103 See for example: Jeffrey W. Legro, “Which Norms Matter? Revisiting the ‘Failure’ of Internationalism,” International Organization 51, no. 1 (1997): 31; Wayne Sandholz and Kendall Stiles, International Norms and Cycles of Change (New York: Oxford University Press, 2009); Freidrich V. Kratochwil, Rules, Norms and Decisions on the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (New York: Cambridge University Press,

methodology that incorporates positivist traditions by using the treaty text as the starting point and constructivist traditions by analysing the nature and role of state behaviour as an agent for change. Armstrong, Farrell and Lambert suggest that International Law as Ideology theory could best be described as ‘critical constructivist’ because of its emphasis on the relationship between discourse and power.104

In no way does Scott seek to replace existing legal interpretive methods; rather the objective is to gauge the political significance of a multilateral treaty that itself is regarded as indicative of a structure of ideas central to the set of political relationships of which it is a part.105 The emphasis is reversed: rather than regard the treaty text as the ultimate object of analysis, it is used as a guide to understand the structure of ideas at the core of a political process. A legal reading of a treaty text will use the political background in which the treaty was negotiated as a guide to understanding the treaty text. McDougal and Reisman make the distinction between theories of, and theories about, international law.106 A legal reading would engage with aspects of international treaty law, while a political approach would engage with political questions about treaties related to, but not limited to, regime effectiveness, state compliance and behaviour. CSC theory seeks to extend this distinction to theories of treaty interpretation so as to better understand ‘the “real-world” significance as opposed to the legal meaning, of multilateral treaties that represent the accommodation of divergent political positions’.107

A legal reading will take the text at face value, view preambular paragraphs equally and as indicative of the goals of the treaty and will treat all substantive provisions as carrying equal legal weight.108 A CSC political reading may identify shared legal

1989); Alexander Wendt, “Anarchy is What States Make of It: The Social Construction of Power Politics,” International Organization 46, no. 2 (1992): 391. 104 David Armstrong, Theo Farrell and Hélène Lambert, International Law and International Relations (Cambridge: Cambridge University Press, 2007), 101. 105 Scott, The Political Interpretation of Multilateral Treaties, 110. 106 Myers S. McDougal and Michael W. Reisman, “The Changing Structure of International Law: Unchanging Theory for Inquiry,” Columbia Law Review 65, no. 5 (1965): 810–813. 107 Scott, “Reconciling the Text with Political Reality,” 104. 108 Scott, The Political Interpretation of Multilateral Treaties, 111.

goals109 and will consider one or two substantive provisions as containing the ‘crux’ of the agreed solution that will place some limits on the pursuit of a common goal for negotiating parties.110 The preamble will allude to rather than ‘define a principle whose acceptance as a basis of negotiation [is] essential to the conclusion of a treaty’.111 The preambular paragraphs allude, or indirectly refer, to the foundation ideology, the principle that unifies the cognitive cooperation structure. According to CSC theory, these paragraphs are of greater political importance than others.112 A power-based interpretive approach may assume that powerful states would be reluctant to give away advantage. CSC theory does not reject a power-based interpretation, but incorporates the role of ideational change, showing that cognitive cooperation structures can be altered through a change in the ideas that actors agree upon as a basis for managing the issue.

Scott justifies the need for a political theory of treaty interpretation.113 McLachlan calls for an integrative approach whereby treaties are interpreted in a broader legal context.114 He outlined a process to apply a legal interpretation to a treaty that systematically prioritises integration with the international legal system. In contrast, Scott provides an application process that yields a political interpretation of a treaty that accounts for its placement in the broader political context.115 Pauwelyn and Elsig provide three dominant hermeneutics that a tribunal may use to interpret a treaty: the text of a treaty, the intent of state parties and the underlying objective of the treaty.116 Interpretation of the component parts or ideational terms of CSC theory advances all three simultaneously. The legal text is analysed to discern the CSC solution and, to some

109 Scott, “Intergovernmental Organizations as Disseminators,” 583–584. Scott makes the following distinction: ‘The shared legal goals of the state party to a treaty may not equate with the political goals of individual states. Even if the preamble of a treaty could be read as a true statement of the goals of the parties, the goals expressed in that treaty are not the only goals of the states concerned’. 110 Scott, The Political Interpretation of Multilateral Treaties, 111. 111 Ibid. 112 Scott, The Political Interpretation of Multilateral Treaties, 111 (on hierarchy of preambular paragraphs) and 15–16 (on foundation ideology). 113 Scott, The Political Interpretation of Multilateral Treaties, 2-5. 114 McLachlan, “The Principle of Systematic Integration and Article 31(3)(c),” 279. 115 Scott, “Reconciling the Text with Political Reality,” 109. 116 Joost Pauwelyn and Manfred Elsig, “The Politics of Treaty Interpretation” in Interdisciplinary Perspectives in International Law and International Relations: The State of the Art, eds. Jeffrey L. Dunnoff and Mark A. Pollack (Cambridge: Cambridge University Press, 2013), 445–474.

extent, the foundation ideology. The intent of state parties is analysed to discern the CSC issue and community of interest and the underlying objective is analysed to discern the legitimation goal and, to a degree, the foundation ideology. The connection between text, state party intent and treaty objective is always considered in relation to structures of power. In doing this, CSC theory synthesises the relationship of CSC participants to the treaty text that is instantiated by a process of international cooperation.

Treaty Life: Operation of a Multilateral Treaty Over Time

CSC theory enables the evaluation of stages in the process towards the commencement of a treaty. It also enables evaluation of steps in the implementation or operational ‘life’ of a treaty and, most importantly for this project, this includes evaluation of stages relating to the negotiation of subsequent or additional agreements that may emerge as necessary over time. CSC theory does not claim to enable the discovery of an optimal solution but rather the discovery of methods for solving problems arising within the context of the greater problem that the international community seeks to solve. In doing so, CSC theory conceives:

From a position external to international law, the relationship between a treaty, as a structured system of ideas operating within a broader system of international law and the process of cooperation of which it is a part.117

That states must negotiate subsequent agreements to a foundational treaty is a requirement in several multilateral treaty regimes.118 The issue of mutual concern will continually evolve in response to both the treaty that manages it and real-world circumstances. There are some parallels here with referential evolutionary interpretive methods.119 The issue of how best to negotiate a subsequent agreement is of central concern and CSC theory offers a way of conceptualising this evolving aspect of

117 Scott, The Political Interpretation of Multilateral Treaties, 9. 118 See for example: United Nations Framework Convention on Climate Change (1992) as original or foundation treaty with Kyoto Protocol (1997) and Paris Agreement (2015) as subsequent agreements; The Antarctic Treaty (1959) as original with the Convention for the Conservation of Antarctic Seals (1972) and the Convention on the Conservation of Antarctic Marine Living Resources (1982) and the Convention on the Regulation of Antarctic Mineral Resource Activities (1988) as subsequent agreements. 119 Christian Djeffal, Static and Evolutive Treaty Interpretation: A Functional Reconstruction (Cambridge: Cambridge University Press, 2016), 21.

multilateral treaty negotiation by considering what might facilitate integration. CSC theory posits:

An effective foundational [original] treaty of a multi-treaty regime addressing a collective action problem instantiates an agreed conceptual basis on which to mediate the interests of individual States Parties.120

This goes beyond Genest’s understanding of the framework convention as simply laying the groundwork for further multilateral cooperation.121 CSC theory suggests that only after the foundation ideology (the agreed basis for the original treaty) is discerned, might one be able to infer the basis on which states may be able to mediate their interests to negotiate a subsequent agreement. The importance of this agreed upon conceptual basis cannot be underestimated. Scott refers to a treaty that incorporates a ‘potpourri’ of principles as inadequate. The framework convention must incorporate ‘an agreed principle or small set of interrelated principles, accepted by all participating States, that is capable of serving as a basis for constraining their pursuit of individual interests in the common good’.122

Thus far, CSC theory has been described in terms of what sets it apart and what it offers. Now it is imperative that we become acquainted with the various CSC terms. These anchor the political interpretive process by providing ideational units of analysis that are then evaluated for their connection to structures of power.

CSC Theory Application to a Multilateral Treaty

Thus far, the broad political interpretive approach and the view of the treaty as a management device have been discussed. The next section details the way CSC theory works when applied to any multilateral treaty in the international system. The treaty becomes a guide to understanding the ideas at the core of a political process. In this way the CSC can be considered the ideational backbone of the multilateral treaty that

120 Scott, “Does the UNFCCC Fulfil the Functions Required of a Framework Convention?,” 2. 121 Alexandre Genest, “The Fight Against Global Warming: Progress Made and Priorities for A successor to the Kyoto Protocol,” Revue Juridique Thémis 46 R.J.T. n.s. 1, no. 3 (2012): 533. 122 Scott, “Does the UNFCCC Fulfil the Functions Required of a Framework Convention?,” 10–11.

emerges during negotiation on the issues that gave rise to the treaty.123 A CSC consists of a set of cognitive elements at the core of a process of interaction and cooperation:

The cognitive structure of cooperation CSC has four essential inter-related [ideational] components: a goal common to the negotiating states, pursuit of which gave rise to the perceived need for a multilateral treaty; the issue to which pursuit of this goal gave rise; the foundation ideology or philosophical basis for determining how to proceed; and the ‘solution’ as the way by which the parties have agreed to tackle the issue.124

While interlinked, the elements can best be considered as an hierarchically ordered cognitive pyramid. The base of the pyramid is the foundation ideology—the base on which all other CSC elements depend.

A CSC can only be recognised as emerging when two or more States begin to negotiate regarding pursuit of a common legitimation goal so as to reveal acceptance of the same foundation ideology.125

Due to the centrality of this ideology in the power structure, for successful integration between treaties, it is vital that the foundation ideology of the subsequent treaty maintains or augments that of the original treaty. The next sections provide a glossary of CSC terms including: community of interest, CSC issue, legitimation goal, CSC solution and CSC myth. Each builds on the fundamentally significant foundation ideology.

Community of Interest and CSC Participants

The community of interest consists of those who express an interest in participating in resolution of the issue under consideration, though these states can be distinguished from CSC participants (those who negotiated the treaty).126 For example, during the development of the colonialism CSC of Antarctic governance, the US did not pursue a goal in common with other members and hence, could not be said to have been a member of the CSC.127 The community of interest component can only be identified on

123 Scott, “Intergovernmental Organizations as Disseminators,” 584. 124 Ibid. 125 Scott, The Political Interpretation of Multilateral Treaties, 66. 126 Scott, The Political Interpretation of Multilateral Treaties, 15. See, p. 112 for the link between CSC participants as those that negotiated the treaty. 127 Ibid., 47.

the basis of knowledge of the political background of the treaty; it is not a matter of checking the status list of a treaty.128 The community of interest can, in certain instances, be largely responsible for progress. For the negotiation of the Basel Convention, it was only after environmental NGOs presented the issue as a north-south problem that developing countries adopted a more radical negotiating position. The influence of the community of interest is measured relative to consensus on the foundation ideology and perception of the CSC issue that gives rise to the treaty negotiation process.

CSC Issue

The CSC issue is that which the treaty was established to address.129 Identifying the CSC issue requires investigation of the political context that gave rise to the process of international cooperation via negotiation of a multilateral treaty. Therefore, this CSC component cannot be discerned from the treaty text but must be identified after an examination of the process of cooperation inclusive of the multilateral treaty.130 To identify the CSC issue, it is important to determine what common legitimation goal of the negotiating states gave rise to it.131 In this context, one must remain aware of the political process associated with determining which issues reach the international agenda and how those issues are defined.132 In this way, interpretation of the three components—the community of interest, the CSC issue and the legitimation goal—is linked in that they require interpretation of the political process more than the treaty text.

Legitimation Goal

The key to identifying the legitimation goal is to locate a goal common to the participant states without which the treaty would not come into existence and without which the issue would not have arisen. The legitimation goal component is a good starting point when identifying the CSC instantiated in a treaty. The interpreter should

128 Ibid., 112. 129 Scott, “Reconciling the Text with Political Reality,” 111. 130 Scott, The Political Interpretation of Multilateral Treaties, 108. 131 Ibid., 172. 132 Ibid., 13.

seek to identify the self-interested, competitive goal that negotiating states had in common and which gave rise to the perceived need for a regime. This may need to be considered hypothetically because the legitimation goal is rarely overtly articulated. A clue is that the ‘treaty is likely to express the goal dictated by the foundation ideology as opposed to the goals to which the foundation ideology provides limits’.133 We seek to identify a goal common to the negotiating states upon which the treaty placed constraints—to achieve their common goal.134

Foundation Ideology

This CSC component is the most significant. Consensus agreement to a foundation ideology supports the successful negotiation and conclusion of a multilateral treaty, a legal outcome resulting from a political process. The foundation ideology component in CSC theory is defined as a principle or small set of interrelated principles alluded to in the preamble that underpins and unifies the agreed cognitive structure by which to manage the issue of mutual concern.135

States will be willing to accept this principle as a given; it is unlikely to be questioned. The verity of the foundation ideology will determine the extent to which limits are placed on the pursuit of the legitimation goal. Scott acknowledges that because it may be accepted as a pervasive idea in the intellectual milieu, the verity of the foundation ideology may not be easily called into question. For example, environmentalism states that the environment need be protected and scientism states that scientific knowledge is objective. There may be contemporary thinkers that challenge these foundation ideologies though ‘the ideas are sufficiently pervasive … to generally be assumed true in public policy discourse’.136

The foundation ideology component provides the conceptual link between a CSC and the set of political relationships centred on the issue in question. The integral connection between the foundation ideology and structures of power will be discussed in more detail later. An accepted foundation ideology will logically lead to a CSC solution and

133 Ibid., 109. 134 Ibid., 113. 135 Ibid., 15. 136 Ibid., 16.

will have been bolstered by repeated iteration of the CSC myth. Change in the CSC will occur, but the foundation ideology will be slowest to respond while components at the higher end of the cognitive pyramid are more easily modified.137

Thus, the foundation ideology is a principle (or small set of interrelated principles) that will not be overtly stated but will generally be alluded to early in the preamble. It will justify the internal power structure of the regime so that the institutional structure established by the multilateral treaty appears normal and in everyone’s best interests.138

CSC Myth

The foundation ideology has that ‘known’ quality about it. This has usually been sustained by articulation of the CSC myth, though not overtly. The foundation ideology can also give rise to a CSC myth that will offer a narrative in support of it. The CSC myth has no foundation in fact139 and will not be found in official documents or in the treaty text itself (remembering that the foundation ideology is only alluded to in the preamble and the CSC myth acts to reinforce it). Rather, the myth will likely be found in literature on the CSC issue intended for the interested layperson.140

CSC Solution

This component is usually easily identified in the first four substantive provisions/articles of the multilateral treaty text. The CSC solution functions as ‘an agreed constraint on pursuit of the common goal and may take the form of a rule proscribing or prescribing particular action’.141 It is what states parties are going to do to address the issue that threatens their pursuit of the legitimation goal. ‘The impression of “rightness” of the solution is enhanced by the fact that the treaty is a document of legal standing’.142 This component most clearly promotes Scott’s view of the treaty as a management device:

137 Ibid., 20. 138 Ibid., 116. 139 Henry Tudor, Political Myth (New York: Praeger Publishers, 1972), 116. 140 Scott, The Political Interpretation of Multilateral Treaties, 16. 141 Ibid. 142 Scott, “Intergovernmental Organizations as Disseminators,” 586.

What is here being dubbed the ‘solution’ is unlikely to ‘solve’ the issue but will manage it in such a way that participating States are left free to resume whole–hearted pursuit of the common goal, albeit within certain agreed limits.143

Summary: Identifying the CSC Components in a Multilateral Treaty

All the CSC definitions explained have one central caveat: a political interpretation of a multilateral treaty is more ‘an art than a science’.144 Scott understands that identification of the CSC ‘is not of a disprovable nature’ but that the implications of identifying the components do have predictive value based on the application of ideology theory.145 However, this method for interpreting the component parts of every multilateral treaty is repeatable. The CSC issue, community of interest and legitimation goal are not defined in the treaty text; an analysis of both the political background and process of cooperation is required. In contrast, the foundation ideology is usually alluded to in the preamble and the CSC solution generally appears in the first four substantive provisions of the treaty text in which the CSC is been instantiated.146 The CSC myth will act as ‘a story told in support of an ideology’ and, as such, cannot usually be found in official documents but will rather be part of the intellectual milieu.147 Identifying these components can be assisted by understanding the relationships between them.

CSC Components: Interaction and Usage

Scott states that the maintenance of a tight logical nexus between the CSC issue, foundation ideology and CSC solution is integral to a strong multilateral treaty regime148 that is robust and stable. It will be able to absorb, integrate, remain dynamic in a changing operational context and be able to respond to challenges to its CSC nexus.149 This assertion emanated from Scott’s initial application of ideology theory to

143 Scott, The Political Interpretation of Multilateral Treaties, 16. 144 Ibid., 213. 145 Ibid. 146 Ibid., 110. 147 Ibid., 115. 148 Scott, The Political Interpretation of Multilateral Treaties, 217. 149 Scott, The Political Interpretation of Multilateral Treaties, 117.

the Antarctic Treaty System. All subsequent applications of CSC theory have sought, among other things, to verify whether this remains true.

In certain publications Scott has chosen to only focus on four key components of CSC theory: the issue, ideology, solution and goal.150 Each time CSC theory is employed, it further develops certain aspects of the theory and reveals fresh insights into the regime in question. Research on the United Nations Framework Convention on Climate Change sought to determine the verity of the foundation ideology to assess whether the framework convention needed replacement.151 Analysis of the International Whaling Commission sought to demonstrate how hegemonic policy preferences can be promoted when negotiating an agreement to establish an IGO.152 The interaction and linkage between the CSC issue, foundation ideology, CSC solution and legitimation goal are essential for any political interpretation of a multilateral treaty and the relative importance accorded to each term will vary with each case study. The other two components, the CSC myth and community of interest, while relevant in some instances, can be tangential.

Let us now turn to the most important CSC component, the foundation ideology, to consider how an agreed upon principle (or principles) might establish a structure of power or reinforce an existing one. The theorisation of the connection between ideas and power provided by CSC theory is perhaps its most important aspect responsible for bridging the disciplines and understanding the politics of international law. Therefore, the next section will systematically discuss CSC theory as it relates to power and, in particular, how the foundation ideology responds to, and reinforces, existing power structures.

Foundation Ideology and Structures of Power

CSC theory considers the explanatory potential of ideas, which are integral to structures of power and a possible causal factor in a process of socio-political change.153 The CSC

150 Scott, “Intergovernmental Organizations as Disseminators,” 581–600; Scott, “Does the UNFCCC Fulfil the Functions Required of a Framework Convention?,” 1–21; Scott, “Reconciling the Text with Political Reality,” 103–119. 151 Scott, “Does the UNFCCC Fulfil the Functions Required of a Framework Convention?,” 1–21. 152 Scott, “Intergovernmental Organizations as Disseminators,” 581–600. 153 Scott, “Intergovernmental Organizations as Disseminators,” 587.

itself links the set of interrelated ideas with the set of political relationships in which the multilateral treaty is embedded.154 For Scott, it is not a question of whether ideas affect reality but rather, the way ideas act as necessary yet insufficient causal factors that then provide aid tracing the broader political dynamics at play.155 In this context, CSC theory provides a way to trace the evolution of a multilateral treaty-based process of international cooperation in terms of an ideational nexus embedded in the original treaty. Further, CSC theory explains how that structure of ideas, the ideational nexus,156 is integral to the structure of socio-political power confirmed by that treaty.

A CSC is integral to a power relationship structure, thus, any change in those relationships will be reflected in a change to the CSC on the issue of mutual concern:157

Whether the CSC is used as a means of changing political relationships or whether the CSC changes as a reflection of changes initiated via other forms of power, it is ideas that function as the mechanism of change in the treaty regime.158

For Scott, states pursue their interests (defined in terms of power) and seek legitimacy for their goals. A treaty can only emerge after states agree to some shared limits on the pursuit of the common goal, based on a shared conceptual framework. This set of ideas then becomes integral to that ‘particular institutionalised process of international cooperation’.159 During this process, a CSC hegemon, comprising either a single (or small group of) member state(s), may emerge to play a dominant role. The hegemon may disproportionately influence CSC components; for example, the principle that eventually becomes the foundation ideology may be strongly advocated within the hegemonic state and negotiation may occur via the hegemon.160

Central questions when considering the interrelationships of CSC theory components and power structures are: How is the issue being defined? Who is proposing what?

154 Ibid. 155 Ibid. 156 Scott, “Intergovernmental Organizations as Disseminators,” 582–583. 157 Scott, The Political Interpretation of Multilateral Treaties, 17. 158 Ibid., 221. 159 Ibid., 25. 160 Ibid., 19–20.

What principle is being promoted and by whom? How is the principle contained in the foundation ideology endorsed? It should come as no surprise that the CSC hegemon or more powerful states will likely promote a principle that leads to a solution that permits pursuit of the common goal but is also in their interest.

The foundation ideology, as the most important cognitive element of CSC theory, may be contested before consensus is reached. During this process, the interests and preferences of the CSC hegemon may not necessarily be overtly stated. Legal argument can certainly be a cover for political manoeuvring.161 The foundation ideology will seek to mask an unequal power structure and justify the logical CSC solution. Scott employed CSC theory to ‘demonstrate the role of the constitutive treaty of the International Whaling Convention functioning as both the vehicle and the camouflage for the dissemination and implementation of hegemon’s policy preferences’.162 In this way, the role of agency as part of a treaty operation process was primarily examined. To justify the CSC solution, negotiating states will communicate based on the assumption that the foundation ideology is true. It is worth recalling that the ‘foundation ideology may portray the solution as imposing equal benefits or costs on all CSC participants but in practice will in some way favour one or more participants.’163

The foundation ideology is, therefore, clearly integral to the set of power relations. Scott says that the foundation ideology:

Retains its position in the power structure so long as rhetoric in that structure assumes the ideology to be true. As an ideology, it is functioning in a world of competing ideologies; an ideology must be able to defeat or absorb rival ideologies.164

Risks to a Regime as it Evolves: Foundation Ideology Change

The foundation ideology does not exist in isolation. It must adapt to competing ideologies that overlap, compete, clash, drown or reinforce it by either defeating or absorbing them so that power relationships are maintained.165 Importantly, the

161 Scott, International Law in World Politics,121–141. 162 Scott, “Intergovernmental Organizations as Disseminators,” 598. 163 Scott, The Political Interpretation of Multilateral Treaties, 180. 164 Ibid., 97. 165 Ibid., 15

foundation ideology ‘upholds an order of power through blocking evidence of that power structure [while] present[ing] all members of the political structure as equally placed in relation to the subject of the ideology’.166 For the power structure to survive, the ideology must adapt and change and is, thus, best considered a social process and not possessed ideas.167

Scott considers how rival ideologies can affect the power structure using Therborn’s taxonomy of ideologies as either overlapping, competing, clashing, drowning or reinforcing each other.168 The power structure will last only as long as CSC members accept the foundation ideology as a ‘logical underpinning to discussions concerning that issue area’.169 Indeed, ‘rhetoric that assumes the ideology to be true will reinforce the ideology and hence strengthen the set of political relations founded on that ideology’.170 External criticism will not pose a threat as long as the CSC members continue to interact on the assumption that the foundation ideology is true. It is only criticism of the foundation ideology by CSC members that will challenge the power structure.171

Scott differentiates between what the multilateral treaty may seek to accomplish and what CSC participants seek to achieve. In this way, success may be considered from the perspectives of state parties, in relation to achievement of the legitimation goal.172 Building on both structural and cognitive understandings of institutional evolution, Scott claims that:

Ideas are a necessary though not necessarily sufficient, explanation of an historical trajectory … as the group of inter-related ideas in which international cooperation is focused, the CSC will evolve to reflect changes in structural relations; conversely the CSC can be used as an avenue to political change.173

166 Scott, “International Law as Ideology,” 318. 167 Scott, The Political Interpretation of Multilateral Treaties, 24. 168 Goran Therborn, The Ideology of Power and the Power of Ideology (London: NLB, 1980), vii. 169 Scott, The Political Interpretation of Multilateral Treaties, 24. 170 Ibid. 171 Ibid. 172 Ibid., 13–14. 173 Ibid., 117.

Tracing change in the cognitive structure of a multilateral treaty is, thus, a shortcut to tracing broader political dynamic at play.174

Linkage Between Original and Subsequent Agreements

Thus far, we have primarily considered the way in which CSC theory facilitates a political interpretation of a single multilateral treaty. After a treaty has entered into force, another phase begins—the treaty ‘life’ or operational stage. At this time, the negotiation of additional or subsequent agreements may emerge as necessary. There are two reasons this may occur: to manage new issues that arise after the conclusion of the original treaty or to manage an issue that was included in the original treaty text for management at a later stage. It is not uncommon for an original treaty text to include something that could not be negotiated at the time as a sub-issue. This instantiates a sub-CSC and a new treatymaking process at precisely the same time as the original treaty commences. CSC theory addresses the issue of subsequent treaty development and offers the following two rules.

The first rule is that the foundation ideology of a subsequent treaty must reinforce the original CSC myth and hence, the foundation ideology of the original treaty. This ensures that the power structure is retained and the regime remains strong.175 Scott provides a method to identify whether the foundation ideology of the original treaty is being challenged or reinforced by that of the subsequent treaty. The stability dynamic is the CSC term that describes ‘the way the treaty regime evolve[s] to address new issues and counter challenges in such a way that the foundation ideology is upheld’.176 It can be understood as a process of regime self-correction whereby a proposed treaty text that did not reinforce the foundation ideology of the original would be discarded in favour of one that did.177 Scott suggests that an operating stability dynamic may be a characteristic of successful—and hence stable and robust—regimes.178

174 Scott, “Intergovernmental Organizations as Disseminators,” 587. 175 Scott, The Political Interpretation of Multilateral Treaties, 169. 176 Ibid. 177 Ibid. 178 Ibid.

A stable, successful regime will weather challenges to either the ideology, issue or solution, though in practice ‘challenges are often multiple, synchronous and linked’.179 In a robust and durable treaty regime, the stability dynamic will operate to maintain stability by strengthening the original CSC nexus between issue, ideology and solution. ‘New issues will need to become sub-issues, rival solutions will need to be defeated [and] new ideologies will need to be defeated or absorbed within the existing ideology’.180 If the foundation ideology is not upheld, the regime and the structure of power relations will be weakened.181

The second rule, therefore, is that a robust treaty regime will maintain a tight logical nexus between the issue, ideology and solution. The operation of a stability dynamic is responsible for this process. If the original treaty does not begin with a strong CSC nexus, then subsequent agreements will represent attempts to tighten the nexus.182 When interpreting subsequent treaties, the tendency of a regime to self-correct to tighten the nexus is likely a mark of a cognitively firm and successful regime. Scott acknowledges that close alignment between treaty obligations and structures of power may also foster regime self-correction.183

A close examination of the stability dynamic in terms of whether it is indeed operating and how the process of regime self-correction is occurring should be central to the interpretive process when CSC theory is utilised to examine linked treaties. Considering the stability dynamic as a barometer—an indicator of treaty regime development—is beneficial. It has been shown to assist understanding the ‘why’ of subsequent treaty rejection or integration. Examination of challenges to the foundation ideology of an original treaty can provide the ‘how’ aspect of the question of subsequent treaty integration and, in particular, the effect of change on the power structure.

179 Ibid., 117. 180 Ibid., 117. 181 Ibid., 107. 182 Scott concludes that the Basel Convention did not begin with a strong nexus between the CSC Issue-foundation ideology and CSC Solution. ‘The Ban and the Protocol can be interpreted as the results of an ongoing struggle on the part of environmental NGOs and developing states to pull the nexus tighter’. See: Scott, “The Basel Convention and its Protocol” in Scott, The Political Interpretation of Multilateral Treaties, 187. 183 Scott, The Political Interpretation of Multilateral Treaties, 188.

Both rules—that the original treaty’s foundation ideology is augmented by that of the subsequent treaty and that the CSC nexus of the original treaty is maintained—are imperative when assessing treaty integration using CSC theory.

Statement of Theory: Conclusion

Though international law may well be entwined with world politics, it is not necessarily enmeshed. While found in legal systems—treaties, customs and, to a lesser extent, judicial decisions—the rules, principles and concepts of international law evolve as a sub-system of international politics and, therefore, ‘an ultimate set of international rules appropriate for ever more will never be produced’.184 If international law were regarded as a grand cognitive cooperation structure to address the issue of how interstate cooperation occurs, then the principle of legalism could be identified as the foundation ideology that underpins the existing political order as it relates to international law.185 Indeed, the principle that international law can be applied objectively to any issue that arises between states can mask the relativity of a legal rule to the current political issue. In this way, the foundation ideology of legalism can be used to sustain the existing political order.186

In practice, application of CSC theory to a multilateral treaty is the first step that will produce significant information on the treaty text and the political process of which it is a part. This data can then be utilised, as a second step, to answer a more specific research question and contribute to the field of knowledge in a particular area. The first step is interpretive and the second is comparative. The interpretive dimension identifies various components. Implications can then be drawn from ideology theory to support conclusions about real-world consequences.

The following three chapters will apply CSC theory to the NPT and subsequent treaties in the regime to consider subsequent treaty integration and harmonisation. CSC theory allows the political interpretation of a multilateral treaty and is derived from a grand theory of the ideology of international law. The focus on the foundation ideology as

184 Scott, The Political Interpretation of Multilateral Treaties, 22. 185 Scott, The Political Interpretation of Multilateral Treaties, 23. 186 Scott, The Political Interpretation of Multilateral Treaties, 22–23.

philosophically underpinning a solution in a multilateral treaty187 will guide consideration of the ‘exact nature of the relationship between an ideology and the power structure with which it is associated’.188

Structure of the Thesis

Armed with a theoretical framework and a treaty interpretation process, the next logical step is to apply CSC theory to the original treaty, the NPT. The next chapter will examine how consensus was reached on principle(s) that underpin the NPT and the relationship between the agreed upon principles and power structures. This is undertaken with the aim of better understanding the second-level treaty obligation created by Article VI of the NPT—to conclude a multilateral agreement on complete and general disarmament.

Later chapters will examine three disarmament treaties subsequent to the NPT: The Comprehensive Test Ban Treaty, The Draft Fissile Material Treaty and the Treaty on the Prohibition of Nuclear Weapons developed from the Model NWC. In each chapter the CSC theoretical framework will be applied to the treaty in question and each will be analysed in relation to the NPT to contribute to the field of knowledge on integration and harmonisation between original and subsequent treaties in a single legal regime.

187 Scott, “Intergovernmental Organizations as Disseminators,” 586. 188 Scott, The Political Interpretation of Multilateral Treaties, 220.

CHAPTER TWO. THE ORIGINAL TREATY TO REGULATE NUCLEAR ARMS: THE 1968 TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS

The first chapter provided a rationale for the project, a review of literature pertaining to treaty interpretation of treaties from a single legal regime and a statement of CSC theory. Each of the six CSC components was defined and guidance was provided for how best to interpret these components in relation to any multilateral treaty. The CSC approach will now be applied to the original Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Using information from the CSC theory application process, the latter part of this chapter will consider the effect of the review conference mechanism and also the effects that the non-proliferation and disarmament ideologies have on each other and on the power structure of which the NPT has been integral.

To examine legal integration and political harmonisation between a subsequent and original treaty using CSC theory, it is necessary to begin by methodically interpreting each CSC component in relation to the original treaty. The interpretations in this chapter of each CSC component as applied to the NPT will then serve as control variables. These will be compared and analysed against the CSC components of subsequent treaties: the Comprehensive Test Ban Treaty, Fissile Material Treaty and Treaty on the Prohibition of Nuclear Weapons in Chapters Three, Four and Five, respectively. To begin, each CSC component (the foundation ideology, legitimation goal, community of interest and CSC issue, myth and solution) must first be definitively and logically interpreted for the original treaty. Only then can the comparative and analytical process take place. This multi-step process is necessary to form conclusions about the viability and nature of integration and harmonisation between the NPT and subsequent disarmament treaties.

The 1968 Treaty on the Non-Proliferation of Nuclear Weapons

The original treaty (Appendix One), also referred to as the cornerstone agreement of nuclear arms control, the Nuclear Non-Proliferation Treaty (NPT), is comparable in stature and gravitas to the UN Charter itself, which contains laws governing the use of

force.189 It is the most widely ratified treaty in the international system with all but four states party to it.190 The treaty is ‘unique in the political history of the world, [as it] is aimed at halting the course of history in a crucial field by fixing once and for all the number of nuclear weapon powers’.191 Now in its 48th year, the NPT has acted to prevent or at least constrain horizontal proliferation of nuclear weapons while providing for the development of nuclear energy for peaceful purposes and generally encouraging disarmament.

The treaty has had the effect of creating a two-tier system of nuclear haves and have- nots. This was achieved by consensus agreement to what is widely known as the ‘grand bargain’ whereby NWS agreed not to share nuclear weapons or related technology and NNWS agreed not to seek to acquire nuclear weapons. Application of CSC theory will further understanding of how consensus to this idea was reached, how concepts associated with non-proliferation developed and why states agreed to freeze the status quo—thereby preventing President Kennedy’s apocalyptic vision of a world with 15 or 20 nuclear armed states192 and limiting the number of legitimate NWS in the international system to five.193 A central inducement for NNWS to join the NPT was

189 See United Nations Charter Articles 2 and 51 relating directly to the Use of Force by a state party: http://www.un.org/en/documents/charter/index.shtml. 190 United Nations for Disarmament Affairs (UNODA) Status of the Treaty on the Non-Proliferation of Nuclear Weapons counts 191 as the number of state parties. This figure includes both UN observer states (the Holy See and Palestine) and the Democratic Republic of North Korea (DPRK). UNODA counts four non-state parties: India, Israel, Pakistan and South Sudan. On 10 January 2003, the DPRK announced its withdrawal from the treaty. UNODA notes that states parties maintain divergent views regarding the status of the DPRK under the treaty. See: United Nations Office for Disarmament Affairs (UNODA) “Status of the Treaty on the Non-Proliferation of Nuclear Weapons”. http://disarmament.un.org/treaties/t/npt. United Nations Member States count ‘188 of 193 member states of the United Nations are party to the NPT’. Of 193 UN Member States (this total does not include observer states), a total of five non- State Parties to the NPT are: India, Pakistan, Israel, South Sudan and DPRK, hence 188 state parties. See: United Nations Member States “Growth in United Nations Membership, 1945-present,” http://www.un.org/en/sections/member-states/growth-united-nations-membership-1945- present/index.html. 191 Dr B. Goldschmidt, “The Negotiation of the Non-Proliferation Treaty” IAEA Bulletin 22:3/4,76. (Chairman of the Board of Governors, IAEA). 192 US President John F. Kennedy, Debate Transcript “The Third Kennedy-Nixon Presidential Debate,” October 13, 1960, http://www.debates.org/index.php?page=october-13-1960-debate- transcript or “Text of President Kennedy’s News Conference on Foreign and Domestic Affairs,” New York Times (Western ed.), p. 4 col. 7, March 22, 1963. 193 According to Article IX(3) of the NPT, 729 UNTS 161, ‘A nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967’ (http://disarmament.un.org/treaties/t/npt/text).

provided for in Article VI of the NPT. It outlines the obligation that NWS halt and reverse the nuclear arms race and also work in good faith towards a treaty on complete and general disarmament. This provision was included to address the issue of vertical proliferation.

Inclusion of Article VI created an obligation to negotiate a subsequent disarmament agreement.194 It could be designed on any basis; however, the implications of building subsequent treaties on certain bases are theorised in Scott’s treaty interpretation approach. By applying CSC theory to the nuclear arms control legal regime, we will examine the specific bases on which subsequent treaties may be built. This chapter will examine the original treaty to find the qualities underpinning the NPT to consider how those elements might enable or hinder subsequent treaty development. Practically, the CSC theory application process will dissect the NPT into ideational components, performing something akin to an autopsy to identify units of analysis. This chapter will build on Scott’s chapter, Article VI and the Durability of the Nuclear Non-Proliferation Regime,195 to more specifically consider the potential for subsequent treaty development. The theory application process begins by identifying the CSC issue that gave rise to the treaty.

CSC Issue

Prima facie, one might assume that the issue to which the treaty was a response, heretofore referred as the CSC issue, was simply curtailing proliferation of nuclear weapons. Adopting a less literal and more inductive rationale, Scott argues that the CSC issue for the original treaty is: Who will manage the threat of nuclear weapons and how will this be done? The NPT emerged in direct response to this question and to confirm this interpretation of the CSC issue, we need examine how this question was answered by the international community.

State parties felt the urgent need to reach agreement on how best to manage the threat of nuclear weapons. In the wake of atrocious bombings of Hiroshima and Nagasaki in

194 Mohamed Ibrahim Shaker, “the international agreement…was based on the assumption that the nuclear weapon states themselves were going to disarm in the foreseeable future.” The Nuclear Non- Proliferation Treaty: Origin and Implementation 1959-1979 Volume I (New York: Oceana Publications, 1980): 31. 195 Scott, The Political Interpretation of Multilateral Treaties, 145–169.

Japan, two initial proposals were unsuccessful: the Baruch and Gromyko Plans of 1946, both of which called for the elimination of all nuclear weapons.196 The former plan, a US initiative, was a revision of the Acheson-Lilienthal Report that sought to establish an International Atomic Development Authority as an organ of the United Nations, which was at the time controlled by Western non-communist powers. This authority was to inspect the Soviet arsenal first and then operationalise and monitor disarmament. The USSR rejected the chronology of the plan, instead insisting on disarmament by individual states before inspections.197 After only five days, the Soviet counter proposal, the Gromyko Plan, which called for a ban on nuclear weapons and ratios on conventional weapons that would nullify US advantage, was also rejected. These early efforts failed primarily because neither party could be sure that the other was not cheating. ‘The question of inspection and verification has bedevilled every serious effort at disarmament since that time’.198 After these early failures, it became clear that neither the US nor the USSR could verifiably nor simultaneously relinquish advantage. Less comprehensive solutions that did not focus exclusively on elimination soon emerged.

Economic advantage from the sale of nuclear technology for more affordable energy production underpinned US President Eisenhower’s Atoms for Peace proposal of 1953.199 Instead of focusing on the elimination of nuclear capabilities, the plan entailed establishment of the IAEA to safely promote nuclear energy for peaceful purposes, assist with technology transfer and ensure safety. The USSR initially rejected the proposal due to concerns over which safeguards would prevent expansion from civil- to weapons-grade fissionable material,200 an issue that continues to concern the

196 The text of the Baruch and Gromyko plans are available respectively in Documents on Disarmament 1945–1959, Volume I (1945–1956), U.S. Department of State, Washington, DC, August 1960, pp. 7–16 and 17–24. 197 Edwin Brown Firmage, “The Treaty on the Non-Proliferation of Nuclear Weapons,” American Journal of International Law 63 (1969): 714. 198 Lincoln P. Bloomfield, “Arms Control and International Order,” International Organization 23, no. 3 (1969): 640. 199 Mark P. Hilborne, “The Non-Proliferation Treaty: Foundation of Disarmament Policy,” in Handbook of Nuclear Proliferation, ed. Harsh V. Pant (New Jersey: Taylor and Francis, 2012), 252. 200 Susanna Scrafstetter and Stephen R. Twigge, Avoiding Armageddon: Europe, the United States and the Struggle for Nuclear Nonproliferation, 1945–1970 (Connecticut: Greenwood Publishing Group, 2004), 72.

international community.201 While the US moved forward in an attempt to create a regime to manage nuclear energy for peaceful purposes, the Soviets were reticent and cited proliferation fears.202 Overall, the Atoms for Peace proposal sidestepped the urgent and unconditional requirement for a ban on nuclear weaponry that was sought in 1946.

The issue of nuclear arms control soon divided into discrete parts. Management of nuclear technology began to be considered in terms of managing nuclear energy for peaceful purposes, nuclear testing and the threat of nuclear proliferation. Nonetheless, the overarching problem remained: how would the nuclear threat be managed and by whom? This is the CSC issue, the ideational unit of analysis that best explains what led to the conclusion of a treaty that codified into law a solution to manage the issue of mutual concern.

The political will to achieve general and complete disarmament was palpable in the aftermath of Hiroshima and Nagasaki. Unfortunately, this determination diminished as verification complexities became more apparent and security guarantees could not be unequivocally granted. Regardless, under the auspices of the United Nations, the international community remained seized of the matter. Another initiative to manage the issue of nuclear weapons and related technology was the Ten Nation Disarmament Committee of 1960, which ceased to function after a walkout by the Soviets and all members of the Warsaw Pact.203 As difficulties emerged and the deadlock increased (both in the international arena and as a result of the arms race between the US and Soviet Union (USSR)), alternative, less comprehensive, less absolute or unequivocal options continued to surface. In place of a total ban or complete elimination, the notion of limiting the number of NWS emerged.

The Dissemination of Nuclear Weapons

The idea of restricting NWS numbers was first proposed by the Irish through resolutions passed over four years at annual sessions of the General Assembly

201 Weiss, Leonard. “Atoms for Peace,” Bulletin of the Atomic Scientists 59 no.6 (Nov.- Dec. 2003): 41. 202 George Bunn, “The Nuclear Nonproliferation Treaty: History and Current Problems” Arms Control Today (December 2003): 2. 203 Coit D. Blacker and Gloria Duffy, eds., “Appendix B” in International Arms Control: Issues and Agreements, 2nd ed. (California: Stanford University Press, 1984), 350.

beginning with the 13th session in 1958.204 By 1961, the idea of preventing the wider dissemination of nuclear weapons was unanimously adopted by both the First Committee and General Assembly.205 In that same year, the US submitted to the General Assembly its proposed Program for Complete and General Disarmament.206 Stage One of the program contained the grand bargain of the NPT, a commitment not to transfer nuclear weapons technology to NNWS and for those states not to seek it.207 Notably, as this less ambitious goal of non-proliferation advanced and non- dissemination was promulgated, the US, under President Kennedy, continued to work towards the goal of complete and general disarmament. In 1962, the Eighteen-Nation Disarmament Committee received a proposal almost identical to that presented to the General Assembly some months before, the US Blueprint for Peace: Outline of Basic Provisions of a Treaty on Complete and General Disarmament in a Peaceful World.208 The third of three central principles of the US disarmament proposal was the establishment of a United Nations Peace Force to provide a safeguard, build peacekeeping machinery and scale down national armaments. However, this proposal did not gain traction.

Quite obviously the idea that gained more purchase was non-dissemination—instead of a collective armed force. Perhaps unusually, the proposal put forward by a powerful state, the US in this instance, did not triumph. The US could not convince the General Assembly or the 18-nation committee of its idea to establish a collective force for peace.

204 See: “The Prevention of the Wider Dissemination of Nuclear Weapons” A/C.1/L.206 (1958) 13th Session; A.C.1/L.235 and Revs. 1–3 (1959) 14th Session; A/C.1/L.25. and A/C.1/L.253/Revs. 1–3 (1960) 15th Session; A/C.1/L.298 and Rev. 1 (1961) 16th Session. 205 Adopted unanimously by First Committee on 30 November 1961 and unanimously at the 1070th plenary meeting of the General Assembly as Resolution 1665. 206 See: “United States Declaration on Disarmament” In Memorandum from Secretary of State Rusk to President Kennedy, Office of the Historian, Washington (October 18, 1961): V (1). https://history.state.gov/historicaldocuments/frus1961-63v25/d186 207 US Department of State Publication 7277 (1961), Freedom From War: The United States Program for General and Complete Disarmament in a Peaceful World: ‘States owning nuclear weapons would not relinquish control of such weapons to any nation not owning them and would not transmit to any such nation information or material necessary for their manufacture. States not owning nuclear weapons would not manufacture them or attempt to obtain control of such weapons belonging to other states’ (First Stage, http://dosfan.lib.uic.edu/ERC/arms/freedom_war.html). 208 The treaty provides three balanced and safeguarded stages outlining specific proposals for reductions. ‘Blueprint for Peace: [An] Outline of Basic Provisions of a Treaty on Complete and General Disarmament in a Peaceful World’, US Arms Control and Disarmament Agency Publication 4, General Series 3 (1962), 1–41, http://www.libertygunrights.com/Blueprint4PeaceRace.pdf.

In the contest for consensus agreement to an idea, Ireland—a small-to middle-level power at that stage—had more success. The CSC issue that gave rise to the NPT can be attributed to the consistent placement of a discussion on the effects of wider dissemination on the United Nations General Assembly (UNGA) agenda by Ireland. Ireland’s actions led to the consensus agreement that to allow wider dissemination of nuclear weapons would be tantamount to allowing an increase in security dangers. By turning attention away from disarmament and focusing on the concept of nuclear weapon dissemination, the Irish resolutions (1958–1962) can be observed to have provided an answer to the CSC issue of who was going to manage the issue of nuclear weapons and how.

An understanding of the way that non-proliferation trumped complete disarmament is significant as it best explains why a subsequent treaty to manage disarmament was included (Article VI) in the NPT. The goal of complete and general nuclear disarmament was sought before the idea of non-proliferation gained traction. From this, the primacy of ideational consensus is evident. Of paramount import is the consensus garnered over four years by the Irish. This accord enabled the community of interest— the state parties involved in the negotiation process—to begin the drafting process as a coalition in agreement that the wider dissemination of nuclear weapons would increase security dangers.

This section on the CSC issue for the NPT has surveyed comprehensive proposals aiming for complete disarmament that were proposed by the US and the USSR through the Baruch and Gromyko Plans. These elimination-based ideas were defeated because they lacked an accompanying verification mechanism. By default, nuclear disarmament was considered ‘plan B’, a second step conditional on the first idea of non-proliferation. With non-dissemination unanimously agreed upon, the next step was for the community of interest to codify the principle(s) into a widely ratified international law instrument.

Community of Interest

The community of interest comprises those states that seek to participate in resolution of the political issue at hand. The CSC can be said to emerge when two or more states begin a dialogue, though there is scope for the community of interest to differ from the

group of states defining the CSC.209 For the original NPT treaty, the US and USSR were integral—they defined the CSC to manage nuclear arms. The community of interest then expanded to the 10-nation disarmament committee and finally to the Eighteen- Nation Disarmament Committee (ENDC). State members include the original 10 nations: US, USSR, United Kingdom, Italy, Canada, France, Bulgaria, Czechoslovakia, Poland and Romania plus eight additional states: Sweden, Mexico, India, Brazil, Burma, Ethiopia, the United Arab Republic and Nigeria. The treaty text was finalised in Geneva between 1965 and 1968.

Foundation Ideology

The foundation ideology underpins the successful negotiation of a multilateral treaty. It is the single underlying principle, or small set of interrelated principles, alluded to in the treaty.210 The foundation ideology is unlikely to be questioned, as it is usually accepted as a given and, most importantly, it ‘provides the basis on which States negotiate their position regarding the common goal to generate a “solution”’.211 The foundation ideology of the NPT is: Further horizontal proliferation of nuclear weapons would increase security dangers. This underlying principle is referred to in the Preamble of the NPT, which states that ‘believing that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war’.212

Interpretation of the foundation ideology for the NPT is fairly straightforward as it was consistently referenced during negotiations. The NPT title expresses the issue as perceived through the lens of the foundation ideology.213 The foundation ideology must incorporate a principle and it is vital in any CSC interpretive process that this be identified. For the NPT, the term ‘further’ in the sentence ‘further horizontal proliferation of nuclear weapons would increase security dangers’ is an essential clue. It reveals that consensus to a principle of differentiation was reached; states agreed to negotiate the treaty based on the assumption that two distinct groups of states, those that possess nuclear weapons (NWS) and all other state parties (NNWS), would participate.

209 Scott, The Political Interpretation of Multilateral Treaties, 15. 210 Ibid. 211 Ibid. 212 Preamble, NPT, 729 UNTS 161. 213 Scott, The Political Interpretation of Multilateral Treaties, 170.

Consensus agreement to the division of the international community of states into nuclear haves and nuclear have-nots came from acceptance of the idea that nuclear weapons acquisition by any additional states other than the five that had already detonated a nuclear explosion would increase security dangers. This resulted in the differential treatment of states and consensus agreement to this principle underpins the original treaty and, therefore, the grand bargain—the basis on which all other substantive provisions were built.

According to CSC theory, the solution follows logically on from the foundation ideology. It stands to reason that if the ideology is that further horizontal proliferation will increase security dangers, then the solution that logically follows is that further horizontal proliferation must halt and be prohibited. If further horizontal proliferation of nuclear weapons increases security dangers the solution is to end horizontal proliferation and thereby, decrease security dangers. Consensus to this fundamental ideational component best explains the success and strength of the NPT. To achieve this, the CSC solution necessarily codified a commitment by states without nuclear weapons to not seek to acquire them and a commitment from those states that had nuclear weapons to not transfer them.

The CSC issue section of this chapter has examined the way states sought to address the issue of mutual concern through a series of initiatives that led to negotiation of the NPT. Considering how the foundation ideology, based on a principle of differentiation, formed the crux of the grand bargain can be best appreciated by examining how the idea proposed by the Irish through the UNGA garnered consensus. We must examine the foundation ideology of the original treaty in some detail because CSC theory directs that it must be built upon in any subsequent treaty. In later chapters, the foundation ideology of the original treaty, and in particular the durability of the principle of differentiation, will be assessed to ascertain whether the foundation ideologies of the subsequent treaties integrate and harmonise with that of the original.

Genesis of Non-Dissemination

Considering how consensus to the foundation ideology was garnered, it is worth noting that the Irish chose to first propose an idea or notion rather than a solution to a problem. They first suggested the idea that an increase in the number of NWS might be bad for

international security.214 Their aim was to see how this idea would be received. After obtaining consensus agreement from the First Committee, Ireland’s Frank Aiken, deputy prime minister (1951–54) and minister for external affairs (1957–69), withdrew UNGA Resolution 1958, preferring not to force a vote on a specific solution. He sought to give states time to independently consider solutions or responses to the idea that security dangers would increase as more states acquired nuclear weapons. Ireland then submitted a similar resolution at the 13th, 14th, 15th and 16th sessions of the General Assembly under an agenda item titled The Prevention of the Wider Dissemination of Nuclear Weapons. Chossudovski asserts, ‘It is right to conclude that the Irish initiative launched the process leading to the non-proliferation treaty’.215

In 1959, Resolution 1380 (xiv) cited the fact that there was agreement among the international community about the dangers that an increase in the number of NWS would pose. All members, but particularly the 10-nation disarmament committee, were urged to ‘consider appropriate means whereby this danger may be averted’.216 From this we can interpret an incremental achievement: in 1958, states accepted the idea that an increase in the number of nuclear armed states would increase security dangers and in 1959 states were asked to consider, deliberate and report back. Resolution 1380(XIV) was agreed to by the First Committee and it arguably led to consensus agreement that the number of NWS must be frozen, to allow more to emerge would aggravate international tensions and make the maintenance of world peace more difficult.

The 1960 resolution (Resolution 1576), this time co-sponsored by Ghana, Japan, Mexico and Morocco, again reaffirmed acceptance of the idea that an increase in NWS would constitute increased danger and make ‘more difficult the attainment of general disarmament agreement’.217 Resolution 1576 also reaffirmed acceptance of the necessity of an international agreement on non-dissemination and asked all states to

214 See Frank Aiken’s speech at 779th plenary meeting of UNGA in Evgeny M. Chossudovski, “The Origins of the Treaty on the Non-Proliferation of Nuclear Weapons: Ireland’s Initiative in the United Nations (1958-61),” Irish Studies in International Affairs 3, no. 2 (1990): 116. Aiken did not want to force a vote on a solution, preferring instead to seek consensus agreement to a principle. 215 Chossudovski, “The Origins of the NPT,” 129. 216 UN General Assembly, Resolution 1380 (xiv), Prevention of the Wider Dissemination of Nuclear Weapons, A/RES/1380 (XIV) (Nov. 20, 1959). 217 UN General Assembly 1576 (xv), Prevention of the Wider Dissemination of Nuclear Weapons, A/RES/1576 (XV) (Nov.20, 1960).

work towards such an agreement. Importantly, in the meantime, states were asked to comply with the idea inherent to the grand bargain: NWS were asked to refrain from relinquishing control over their arsenals and NNWS were asked to refrain from manufacturing or attempting to acquire nuclear capabilities.218 This is quite a remarkable result: after only three years, the Irish managed to propose an idea, encourage debate and create momentum towards an agreement containing the non- dissemination idea and in the interim, states were encouraged to abide by restrictions implied by the idea and to comply with the obligations inherent in the idea of non- dissemination.

The fourth and final resolution in the series—and the one most often cited as the impetus for negotiation of the NPT treaty text—was adopted unanimously by the General Assembly on 4 December 1961.219 The language is strong and unequivocal. An international agreement had to be sought to codify the idea that there should be no transfer whatsoever between states that did or did not possess nuclear weapons. All states were called upon to use their best endeavours to secure the conclusion of such an agreement.220

The treaty would go on to include provisions precluding NWS from sharing or transferring capability to NNWS and provisions requiring NNWS to refrain from seeking nuclear weapons capability. Essentially, UNGA Res 1665(XVI), the fourth Irish Resolution, encapsulated the grand bargain. It was adopted unanimously. This, more than any other proposal, provided the conceptual mandate that would underpin negotiation of the NPT.221

Evidently, the Irish were not presumptuous; they did not seek to dictate a specific solution. The Irish delegation could appreciate that the gravity of the matter and the delicate nature of the task required a slow and steady approach, not one in which any

218 Ibid. 219 UN General Assembly Resolution 1665(XVI), Prevention of the Wider Dissemination of Nuclear Weapons, A/RES/1665 (XVI) (Dec. 4, 1961). 220 Ibid. 221 See: George Bunn, “The Nuclear Nonproliferation Treaty: History and Current Problems” Arms Control Today (December 2003): 2; George Bunn, Arms Control by Committee: Managing Negotiations with the Russians (Stanford: SUP, 1992), 64-66; Evgeny M. Chossudovski, “The Origins of the NPT,” 126. Mohamed Ibrahim Shaker, The Nuclear Non-Proliferation Treaty: Origin and Implementation (New York: Oceania, 1980), 3;

one state was dictated to by another.222 The modus operandi that the Irish employed was to consistently argue for the insertion of an agenda item on non-dissemination in upcoming annual meetings; once the first resolution was passed it was simpler to argue for further consideration of the matter and, therefore, inclusion on the agenda. By consistently bringing the issue up in the General Assembly, they offered states an opportunity to discuss and reach consensus on the idea that halting all exchange of nuclear materials was the first logical step towards averting calamity. By the fourth resolution, states were seized of the matter and ready to negotiate a treaty text on the basis of agreement to the underlying principle of non-dissemination and hence, differentiation. A skilled approach to cooperation and building consensus made this possible. Chossudovski says:

The initiative appears to have been purely Irish: there is to the best of this writer’s knowledge, no evidence of any systemic pre-consultations with other governments.223

The Swedish resolution followed (1961) and further entrenched the grand bargain in that it called for NNWS to form a ‘non-nuclear club’.224 The resolution called for an inquiry to test whether conditions were suitable for this group to commit to not seeking nuclear technology for weapons purposes. The US opposed this resolution in essence because it shifted the focus away from nuclear to non-nuclear states. The following quote from the US government in the record titled International Negotiations on the Nonproliferation of Nuclear Weapons illustrates this point. It also includes reference to the notion that an agreement on disarmament must follow and not precede an agreement on non-proliferation:

The Swedish proposal seeks to shift the emphasis in this matter entirely to non-nuclear Powers receiving nuclear weapons on their territory on behalf of any other country, and thus to prejudice existing defensive arrangements … Quite clearly the conditions which created the need for defensive arrangements will have to be removed before these defensive arrangements

222 The Irish delegation included Mr Frank Aiken (deputy prime minister 1951–54 and minister of external affairs 1957–69), Ambassador Frederick Henry Boland (permanent representative to the UN 1956–64 and president of the UN General Assembly 1960–61) and Dr Conor Cruise O’Brien. 223 Chossudovski, “The Origins of the NPT,” 112. 224 “Request for Inquiry on Willingness of Non-Nuclear States to Agree not to Make or Obtain Nuclear Weapons,” draft resolution introduced by Sweden, 17 November 1961, from UN Yearbook 1961, Disarmament and Related Questions, 17, http://cdn.un.org/unyearbook/yun/chapter_pdf/1961YUN/1961_P1_SEC1_CH1.pdf.

can be terminated. Until general disarmament is achieved or until political and military threats cease to exist once and for all, the United States must continue to give its allies the military support which they request and which they consider necessary for collective self-defence.225

Of note is that all communist members of the UN voted for the Swedish resolution while the US, Spain and 10 other NATO countries opposed it. The division of the international community into two camps became a critical factor. Contestation regarding the foundation ideology is integrally related to power relations. Political divisions resulting from the emergence of Cold War voting patterns would become yet another hindrance to the management of the nuclear threat (the CSC issue). Another factor hindering consensus and unity was the Soviet fear of US plans to establish a NATO multilateral nuclear force (MLF) that could facilitate dissemination of nuclear weapons to NNWS in Europe, particularly Germany.226 This fear was legitimate in that the US draft treaty of 1965 submitted to the ENDC allowed for the possible establishment of an MLF or Atlantic Nuclear Force (ALF) and also the possibility of a European Union (different from the current body) controlling nuclear weapons. England and France could transfer their nuclear capabilities to this union and this would not constitute an increase in the number of entities with nuclear weapons capabilities. This significant political context in which negotiations were to take place is further evidence of the effect that political and power-related issues have on the international legal process that is necessarily a part of international relations—but is not true in reverse.

Relation of Foundation Ideology to Structures of Power

The foundation ideology underpinning the NPT divided the international community into two groups. Scott cogently says that ‘an ideology defines a structure of power relations’.227 The asymmetrical power relations structure that the original treaty established is an obvious result of acceptance of the principle of non-dissemination

225 “Documents on Disarmament” in International Negotiations on the Treaty on the Nonproliferation of Nuclear Weapons, United States Arms Control and Disarmament Agency, U.S. Government Printing Office, 1961, 691–692, 5. 226 See: E.L.M. Burns “The Nonproliferation Treaty: Its Negotiations and Prospects,” International Organization 23 no.4 (1969): 791; National Security Archive, “Non-Dissemination and the MLF,” (Oct. 10, 1963). https://nsarchive2.gwu.edu//dc.html?doc=4364708-Document-25-Memcon-Non- Dissemination-and-the-MLF 227 Scott, The Political Interpretation of Multilateral Treaties, 187.

becoming a given. Scott also says that ‘an ideology masks inequalities’.228 While the inequalities were not completely masked, the foundation ideology of the NPT presented them in survival and security terms. To not act to prevent further dissemination of nuclear weapons was presented as tantamount to allowing international peace and security to drastically erode. Inequality was not altogether masked but was rather subsumed by a perceived need to stabilise the international security environment.

This interpretation of the foundation ideology component of CSC theory exposed the political context and the motivations of the community of interest. These motivations might also be considered goals that CSC participants pursue that are managed by the CSC solution. The foundation ideology of the NPT was that further horizontal proliferation would increase security dangers. This established, and continues to define, the structure of power relations and unchecked pursuit of nuclear capability. It could be argued that it is when the foundation ideology does not mask inequity—when it is clear to all parties who the victors and the vanquished are—that multilateral treaty negotiations become deadlocked or fail. Chapters Three, Four and Five on subsequent disarmament treaties will address this assertion when the foundation ideologies of the respective treaties are interpreted.

Legitimation Goal

This component of CSC theory cannot be identified from the treaty text; it must be deduced from an examination of state behaviour and policy. The legitimation goal must be common to the community of interest. A treaty containing a solution to an issue of mutual concern would not come into existence were it not to place some limit on the pursuit of the legitimation goal.229 To interpret the legitimation goal requires one to look beyond what states say at the United Nations or in other public forums; one must attempt to discern what it is that states really seek to achieve. The legitimation goal is generally static; it will not change once the treaty enters into force.

The legitimation goal of the NPT is an old and well-worn realist principle: having better weapons than all other states will provide national security.230 The legitimation goal for

228 Ibid., 55. 229 Scott, The Political Interpretation of Multilateral Treaties, 113. 230 Ibid., 164.

the NPT is to enhance national security by having better weapons than one’s potential adversaries. This concept is so basic, so fundamental, to realist thinking that it can be easily overlooked; however, once uncovered, one can see how the legitimation goal serves to propel NWS investment in a widely ratified nuclear non-proliferation treaty. Thus, while the legitimation goal is hidden from view, it drives the CSC issue and complements the foundation ideology.

The premise of the legitimation goal is almost childlike in its simplicity. It forms the basis of security and strategy studies in International Relations: if you have a gun, I will need a bigger gun to feel safe; then you will need a bigger gun to feel safe ad infinitum. If I put down my gun will you put down your gun? Can we do this at the exact same time? How can I be sure you do not have another gun somewhere? These concerns are expressed by the ‘existential condition of uncertainty’ also known as the security dilemma,231 and, in combination with the ‘unknowability’ in an international system of sovereign states, is what generally prompts the need for arms control regimes.

Nuclear weapons increase the stakes of the security dilemma because of their massive destructive capacities. The absolute nature of nuclear weapons detonation means that expression of the legitimation goal needs to be more veiled than for other arms control treaties. The goal—to have better weapons than a potential adversary—must be hidden by a cloak of concern for the safety of humanity and the planet. States may seek to enhance their national security but do not want to do so at the expense of all life on earth. In plain terms, through the use of nuclear weapons, the US demonstrated that it had developed weapons that took the security dilemma too far by creating an existential threat to itself—the opposite of its intention.

Thus, the US and USSR sought to enhance their respective national securities. A limit to further horizontal proliferation served to enhance US and Soviet national security because it limited the number of potential adversaries. The basic realist premise that military superiority equates to power in the international system is unchallenged. This

231 Ken Booth and Nicholas J. Wheeler, The Security Dilemma: Fear, Cooperation and Trust in World Politics (Basingstoke: Palgrave Macmillan, 2008), 1–18. The security dilemma is the existential condition of uncertainty in human affairs. Weapons (material reality) can be used for self- protection or to potentially or actually threaten others while motives and intentions (psychological reality) are derived from actual decisions and ambiguity and uncertainty of the ‘others’ motives or intentions. There are the dilemmas of interpretation and response.

view is supported by assertions on the imperative nature of bigger and better weaponry to ensure state security and supremacy. Security forms part of the social contract between citizens and their representatives,232 but for the community of interest for the NPT, security equates to superiority. States seek to pursue and maintain advantage. The NPT permitted this by curtailing horizontal proliferation while leaving vertical proliferation unregulated. It did this by vaguely advocating for disarmament in Article VI while strictly managing horizontal non-proliferation in Articles I and II. Interpretation of the CSC solution component will explain how this was achieved.

CSC Solution

The CSC issue was ‘how will the threat of nuclear weapons be managed?’ and the foundation ideology was consensus to the idea that horizontal proliferation would increase security dangers. It follows logically that the CSC solution would both manage the threat of nuclear weapons and curtail further horizontal proliferation. This supports Scott’s assertion that a tight issue–ideology–solution nexus (see figure 1.) must exist for a treaty to succeed.233 According to CSC theory, the CSC solution component can be interpreted from the treaty text. It is usually found in the first four substantive articles of the multilateral treaty text. The CSC solution can be thought of as the crux of what state parties agree to do to tackle the issue that has come to threaten their pursuit of the legitimation goal.

The CSC solution for the NPT is found in Articles I and II, which essentially stipulate that ‘states with nuclear weapons must not help others acquire them; those without nuclear weapons must not acquire them’.234 This grand bargain of the NPT is a Faustian position whereby those without power give up on ever having it and those with power promise not to share it. The costs and consequences become secondary to attainment, and subsequent maintenance, of the agreement itself. States with nuclear weapons must not help others acquire them; those without nuclear weapons must not acquire them.

232 This was a key idea advanced by: Jean-Jacques Rousseau, Social Contract & Discourses, Translated with Introduction by G.D.H. Cole. (New York: E. P. Dutton & Co. 1913) www.bartleby.com/168/. 233 Scott, The Political Interpretation of Multilateral Treaties, 217. 234 Scott, The Political Interpretation of Multilateral Treaties, 164.

The CSC solution is often the most straightforward of the CSC components to discern. By the time we seek to interpret the CSC solution, the issue that gave rise to the treaty is well understood; the foundation ideology that forms the basis for treaty negotiation has permeated and become absorbed as something approaching an axiomatic fact, the legitimation goal is quietly ‘humming away’ out of view and the CSC myth, much like the foundation ideology, has been accepted. It is at this stage that the solution should appear obvious and logically solve the issue of how to manage the threat of nuclear weapons.

Interpretation of the CSC solution draws on positivist traditions, namely the textual school of treaty interpretation. Therefore, a transcription of Articles I and II of the NPT follows:

Article I

Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

Article II

Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.235

235 NPT, Articles I and II.

The CSC solution contained in these two articles is unequivocal. There are no loopholes and nothing is left open for interpretation. On the contrary, the mandate for a subsequent disarmament treaty in Article VI of the NPT is vague and aspirational.236

Article VI represented an agreement wherein the NWS consented to adopting strategies to accomplish the Article’s objectives in exchange for a certain degree of latitude regarding the specific course of action to be pursued.237

This further confirms that non-proliferation was sought as a first step,238 and disarmament was to be managed only after the NPT entered into force. A subsequent disarmament treaty became a second-level obligation. The ideology of nuclear disarmament was jettisoned in favour of garnering consensus to halt horizontal non- proliferation. That the management of the threat of nuclear weapons was dealt with in this way can largely be understood by recognising the pervasiveness of the CSC myth that bolstered the foundation ideology and presented the CSC solution as the only logical way to control nuclear arms.

CSC Myth

A myth is defined as something that is not necessarily true; it is a story with or without a determinable basis of fact.239 In CSC theory, the myth is an idea that is persuasive, accepted and not necessarily subject to rigorous analysis. The CSC myth serves the foundation ideology; it supports and augments the validity of the ideology by telling a

236 See: Eighteen Nation Committee on Disarmament, “Final Verbatim Record of the Conference of the Eighteen-Nation Committee on Disarmament [Meeting 335],” ENDC/PV.335 para. 18-21.; Christopher A. Ford, “Debating Disarmament: Interpreting Article VI of the Treaty on the Non- Proliferation of Nuclear Weapons,” Non-Proliferation Review 14 no.3, (Nov. 2007): 402-405; Mathew Harries, “Disarmament as Politics: Lessons from the Negotiation of NPT Article VI,” Chatham House: The Royal Institute of International Affairs (2015): 2. 237 IALANA, IHRC, Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons: Request for an Advisory Opinion from the International Court of Justice Legal Memorandum (Cambridge, MA: International Human Rights Clinic, Human Rights Program, Harvard Law School, 2009), 16. http://lcnp.org/disarmament/2009.05.ICJbooklet.pdf. 238 Chris Peloso, “Crafting an Updated Nuclear Non-Proliferation Treaty: Applying Lessons Learned from the Success of Similar International Treaties to the Nuclear Arms Problem,” Santa Clara Journal of International Law 9, no. 2 (Jan. 2011):326. 239 Merriam-Webster Online Dictionary, s.v., “Myth,” https://www.merriam- webster.com/dictionary/myth

story in support of it. The myth will not be found in official documents nor in the treaty text, but rather in everyday language that a layperson might hear about the treaty.

The NPT CSC myth is that a non-proliferation treaty will guard against nuclear war.240 This is not overtly stated, nor can it be sourced from transcripts of negotiations; rather it must be deduced from rhetoric. The community of interest will, through unofficial channels, espouse the CSC myth to achieve their legitimation goal and bolster the foundation ideology. A fairly recognisable and common narrative associated with promotion of the NPT came from US President John F. Kennedy when he cautioned against a world with more and more NWS.241 By warning of the dangers of unchecked proliferation, he espoused the myth that a non-proliferation treaty would make the world safer and prevent nuclear war. Both of these claims may appear plausible but, on closer inspection, are near impossible to prove. As a respected US president who enjoyed record-breaking approval ratings, Kennedy’s social capital was high; his message was able to reach millions and, in turn, his notion of a treaty to manage non-proliferation became accepted and supported by the broader domestic constituency.242 In this way the CSC myth for the NPT is the NPT is a safeguard against nuclear war.

All the CSC components of the NPT have now been interpreted. A reference table has been constructed to enable comparison of these units of analysis from the original treaty with those from subsequent treaties (Table 1). This ‘at-a-glance’ reference will assist later considerations of treaty integration and harmonisation.

Table 1. Cognitive Structures of Cooperation (CSC) Components for the Non- Proliferation Treaty (NPT)

CSC Term Explanation243 NPT Component

Community of interest Those participants that express an US, USSR (former), UK, interest in participating in resolution France, China, Ireland, state

240 Scott, The Political Interpretation of Multilateral Treaties, 164. 241 Kennedy, “Third Kennedy-Nixon Presidential Debate,” 1963. 242 Martin Senn and Christoph Elhardt, “Bourdieu and the Bomb: Power, Language and the Doxic Battle Over the Value of Nuclear Weapons,” European Journal of International Relations 20, no.2 (2014): 317-318. The indicators for social capital as applied to the warning message of US President John F. Kennedy 243 Scott, The Political Interpretation of Multilateral Treaties, 13–17.

of the issue under consideration. party members of UNGA First Committee.

CSC issue The issue with which the treaty was Who will manage the issue established to deal; the issue to of nuclear weapons and how which the treaty is a response. will this be done?

Legitimation goal The self-interested, competitive goal All states want to enhance that negotiating states had in national security by having common that gave rise to the better weapons than their perceived need for a regime. The potential adversaries. legitimation goal provides restraint to unchecked pursuit of state policy.

Foundation ideology A principle (or small set of Further horizontal interrelated principles) alluded to in proliferation of nuclear the preamble that underpins and weapons would increase unifies the agreed cognitive structure security threats. by which the issue of mutual concern is managed.

CSC solution The nub of what the states parties are States with nuclear weapons going to do to address the issue that must not help others acquire had come to threaten their pursuit of them; those without them the legitimation goal (usually must not acquire them. succinctly stated within the first four substantive provisions of the treaty).

CSC myth Reinforces the foundation ideology The NPT is a safeguard and is accepted as a basis for action against nuclear war. by the CSC members (though rarely articulated).

The International Legal Regime

The NPT manages one aspect of the overall nuclear arms control agenda. It legitimises the arsenals of five states and prevents all other state parties from acquiring nuclear weapons and hence, curtails nuclear proliferation. The treaty also grants NNWS the right to acquire nuclear technology. To do so, states must sign an additional treaty known as a safeguards agreement with the IAEA. The original treaty, through Article

VII, has also promoted regional agreements and nuclear-weapons-free zones treaties have emerged over the four decades that the NPT has been in force. These are subsequent treaty achievements in practical terms, but there are also issues that the international legal regime has not adequately dealt with. In 2008, Thakur et al. identified eight problems that the NPT or a subsequent agreement must address. They are:

1) the lack of universality 2) the continuing existence of stockpiles of nuclear weapons 3) the lack of a nuclear weapons convention outlawing the possession and use of nuclear weapons by all actors 4) the lack of verification machinery and compliance mechanisms for the disarmament obligations (Article VI) 5) the lack of a credible and binding inspections regime for non-proliferation 6) the lack of agreed criteria to assess proliferation threats 7) the lack of a basis in international law to enforce non-proliferation norms for states outside the treaty regimes 8) the inapplicability of norms and regimes to non-state actors.244

These eight points further reinforce the requirement that subsequent agreements be negotiated.

The NPT could be viewed as a disarmament treaty that stalled in stage one, the horizontal proliferation stage, instead of logically progressing to the vertical proliferation stage. The treaty dealt with what it could at the time and delayed an issue that was deemed too difficult to reach consensus on. A confidential (now declassified) air gram from the US Department of State to all NATO member states declared:

A non-proliferation treaty is a basic step in the broader pattern of disarmament which the United States hopes will lead to a more secure world. It is only one step; other measures will be needed to halt and turn back the arms race.245

244 Ramesh Thakur, Jane Boulden, and Thomas G. Weiss, “Can the NPT Regime be Fixed or Should it be Abandoned?” Dialogue on Globalization, Occasional Papers, no. 40 (2008), 15. 245 Department of State Airgram, “Aide Memoire on the Draft Non-Proliferation Treaty (NPT),” August 24, 1967, 6.

State parties to the NPT have both waited for and worked towards this next step since the treaty entered into force in 1970. The five-yearly conferences that review the operation of the original treaty have consistently been characterised by frustration with lack of progress towards a subsequent treaty on disarmament.246 In international legal multilateral treaty negotiations, this is not altogether an unusual occurrence. The agreement that states negotiate can signify how far they could progress before the sticking point is included in some way in the original treaty so that states remain engaged with the matter that dogged them during the original treaty negotiation process.

Craig and Ruzicka describe how the ideal of disarmament needed to be twinned with non-proliferation for states to agree to the treaty. They argue that once the NPT entered into force, preservation of non-proliferation as an ideal became the ultimate goal while the ideal of disarmament ‘was written off as the impossible to achieve ideal that undermined the attainable good’.247 The ‘impossibility’ of disarmament coupled with the cardinal necessity of the NPT was promoted by Simpson, who devised the incremental approach to show why the NPT should be extended indefinitely.248 In contrast, Nye focused on how the NPT helped uphold international order.249 The circulation of these messages served to reinforce the inviolability of the original treaty and frustrate any attempt to change or replace the NPT.

The Three Pillars Concept

The story of the NPT is often told in terms of three pillars, a metaphorical description of the dynamics of the international legal regime.250 In this narrative, the NPT is a

246 William Walker, “Nuclear Enlightenment and Counter Enlightenment,” International Affairs 83, no. 3 (May, 2007): 437. 451-452. 247 Campbell Craig and Jan Ruzicka, “The Nonproliferation Complex” Ethics and International Affairs 27, no. 3 (2013), 332. 248 See: John Simpson, & Darryl Howlett, The Future of the Non-Proliferation Treaty UK: Palgrave Macmillan, 2-11; John Simpson, “Nuclear Non-Proliferation in the Post-Cold War Era,” International Affairs 70, no.1 (Jan. 1994): 28-30 249 See: Joseph S. Nye Jr. “NPT: The Logic of Inequality,” Foreign Policy, 59 (1985): 123-31; Joseph. S. Nye, Jr. Nuclear Ethics, (New York: Free Press, 1986), 85. 250 See: US Secretary of State, John Kerry, “Remarks at the Nuclear Nonproliferation Treaty Review Conference” United Nations (New York City: NY) April 27, 2015. ‘The NPT cannot stand unless all three of those pillars are sturdy enough to support it.’; Toby Dalton, et al. “and others” Toward a Nuclear Firewall: Bridging the NPT’s Three Pillars, Carnegie Endowment for International Peace (March 2017): 37, 43-45; Gregoire Mallard, “Crafting the Nuclear Regime Complex (1950-1975): Dynamics of Harmonization of Opaque Treaty Rules,” European Journal of International Law 25

concerted effort on the part of the international community to manage three separate yet time-dependent issues: horizontal proliferation, use of nuclear energy for peaceful purposes and disarmament. Each is considered a pillar of the regime, mutually supporting one another like the legs of a tripod.251 To tell the story of the NPT in this way is to exclude the complex interweaving of the ideologies and the solutions that each pillar supports, as well as the politics and laws involved.

The implicit notion that all three legs of the tripod are of equal length is flawed.252 As this CSC treaty interpretation of the NPT has shown, the prevention of horizontal proliferation is primary and the other two aspects service that overarching goal.253 The three-pillared approach also skews interpretation of subsequent treaties in the regime. The assumption that all three pillars carry equal weight does not account for the confirmation of a power structure that acts to preserve itself. It serves the interests of NWS to refer to the regime in this way as it lends the NPT an appearance of fairness and balance.

The original treaty clearly manages non-proliferation first, by ruling out the transfer of all nuclear weapons technology between NWS and NNWS.254 The use of nuclear energy for peaceful purposes only is then managed concurrent to non-proliferation by providing states with an opportunity to acquire or develop nuclear energy provided that they verify their program of work through IAEA safeguards agreements.255 Complete and general disarmament and a cessation of the arms race are obligations, though they have been portrayed as something to aspire to at some future time.256 These three issues are unequal in compliance terms. The review conference mechanism provides a means of monitoring the progress of each of these separate, yet time-dependent, issues.

no. 2 (2014): 450; Thomas Graham Jr. “Re-Establishing Balance in the NPT,” Book Review The Nonproliferation Review 19, no. 1 (2012): 138 251 Daniel H. Joyner, “Interpreting the Nuclear Non-Proliferation Treaty” Oxford: OUP 2011: 31. 252 Norman A. Wulf, “Book Review: Misinterpreting the NPT, Interpreting the Nuclear Non- Proliferation Treaty by Daniel H. Joyner,” Arms Control Today, 41, no. 7 (Sept. 2011) 41 253 This is emerging as a potential finding of the thesis that will be developed further and expanded on in the concluding chapter. 254 NPT, Articles I and II. 255 Ibid., Articles III and IV. 256 Ibid., Article VI.

The Review Conference as an Impetus in the ‘Life’ of the International Legal Regime

Instead of a new institution to verify implementation of the NPT, a mechanism to review the operation of the treaty was established.257 This compliance and verification mechanism is known as the NPT review conference. It is a meeting of all state parties that takes place every five years in New York at the United Nations Headquarters. State parties convene to discuss issues related to nuclear arms control: non-proliferation, nuclear energy for peaceful purposes and disarmament. Each five-yearly review conference since the entry into force of the NPT in 1970 reviews the operation of the NPT and, in so doing, addresses the requirement that a subsequent disarmament treaty need be negotiated and concluded. To that end, each review conference asks all NWS to provide a report on disarmament efforts or initiatives that demonstrate compliance with the obligations contained in Article VI of the NPT.

The early review conferences (1975, 1980, 1985 and 1990) were characterised by a desire to see practical disarmament-related action. This was, in general terms, satisfied by the conclusion of bilateral agreements between the US and the former USSR.258 During these early years, opposition to nuclear weapons testing was significant and the desire for a test ban treaty—an instrument that would comprehensively stop physical testing of nuclear weapons—also marked early review conferences.

The 1995 ‘indefinite extension’ review conference required that state parties vote to either indefinitely extend the treaty or allow its dissolution. NWS offered NNWS a suite of promises—concrete disarmament measures—in exchange for their votes to indefinitely extend the NPT. The 2000 and 2010 review conferences succeeded in reaching consensus agreements to final outcome documents: a document describing 13 practical steps to disarmament and a 64-point action plan, respectively.259 In 2005 and 2015, state parties failed to reach consensus agreement to a final outcome document.

257 Ibid., Article VIII(3) 258 See: Anti-Ballistic Missile Treaty, 944 UNTS 13, May, 26 1972. Result of Strategic Arms Limitation Talks (SALT I); SALT II concluded 18 June, 1979, did not enter into force; Strategic Arms Reduction Treaty (START I) negotiations began 1980s, concluded July 31, 1991. 259 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, ‘Thirteen Steps,’ NPT/CONF.2000/28 (Parts I and II): 14-15; 2010

The NPT regime arguably reached a turning point in 1995. The conferences before and after the indefinite extension conference can be considered two distinct eras. The post- 1995 conference era is characterised by a series of earnestly drafted yet unimplemented agreements. The 1995 review conference produced the 1995 Principle and Objectives agreement and the 1995 Resolution on the Middle East.260 In 2000, states agreed to 13 steps to disarmament. The 2010 Action Plan is made up of 64 distinct ‘actions’, including 22 provisions on nuclear disarmament, 23 provisions on nuclear non- proliferation and 18 on nuclear energy.261 The agreements remain largely unfulfilled, partly due to their wording, which contains varying degrees of ‘concreteness’ and also because they were crafted as a compromise between all state parties.262 Indisputably, the pressure on NWS to produce verifiable proof of compliance with Article VI has increased since 1995. Since agreeing to indefinitely extend the NPT in 1995, NNWS no longer implicitly trust that NWS will independently comply with their obligations and have, thus, adopted an increasingly proactive stance.

By appreciating the ‘life’ of the treaty regime, we may better understand why the three subsequent disarmament treaties (that will be interpreted in the next three chapters) emerged when they did. The next chapter will show that the 1996 Comprehensive Test Ban Treaty (CTBT) was a direct result of the 1995 review conference. It was part of a package of promises to NNWS and would open for signatures within a year of its

Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, ‘64-point Action Plan,’ NPT/CONF.2010/50 (Vol. I): 20- 29.

260 1995 Indefinite extension Review Conference of the Parties to the Treaty on the Non- Proliferation of Nuclear Weapons, NPT/CONF. 1995/32 (Part I), “Annex, Principles and Objectives for Nuclear Non-proliferation and Disarmament” (Decision 2). This was the second of three “Decision Documents” taken at the conference. Decision 1 dealt with enhanced review processes for the NPT. Decision 3 enshrined the decision to indefinitely extend the NPT and includes the Resolution on the Middle East. “Annex, Extension of the Treaty on the Non-proliferation of nuclear Weapons” (Decision 3). http://www.un.org/Depts/ddar/nptconf/162.htm

261 Conclusions, NPT/CONF.2010/50 (Vol. I): 20-29. 262 Reaching Critical Will of the Women’s International League for Peace and Freedom, “2015 NPT Review Conference Briefing Book,” 4, http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/npt/revcon2015/2015-npt- briefing-book.pdf.

inception.263 The 1997 Model NWC was also drafted in the wake of the 1995 indefinite extension conference as an intrepid means of demonstrating how states might comply with the obligation to negotiate a complete and general disarmament treaty. This was revised in 2007 and the comprehensive TPNW was concluded a decade later.264 This comprehensive approach is currently being championed by NNWS and NWS have not engaged with the ‘Ban treaty’.

Although on the agenda of the Conference on Disarmament for decades, the drafting of a treaty to manage the issues of production and storage of fissile material was only invigorated later (by consensus agreement to the 13 steps towards disarmament that emerged in 2000, the 64-point action plan from 2010 and the 1995 Shannon Mandate from the Conference on Disarmament).265 This led to several draft treaties including the Greenpeace draft of 2002, the US draft of 2006, the International Panel on Fissile Materials (IPFM) draft of 2009 and the French draft of 2015.266 The Greenpeace draft (2002) might be viewed as another indomitable attempt to show states what form a treaty on fissile material might take. This continued from the positive momentum generated by agreement to 13 steps at the conclusion of the 2000 review conference.

263 The commitment to a CTBT is found in “NPT/CONF. 1995/32 (Part I), Annex, Principles and Objectives for Nuclear Non-proliferation and Disarmament” (Decision 2). This was the second of three “Decision Documents” taken at the conference.

264 TPNW, September 20, 2017. 265 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, ‘Thirteen Steps,’ NPT/CONF.2000/28 (Parts I and II): 14-15; 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, ‘64-point Action Plan,’ NPT/CONF.2010/50 (Vol. I): 20- 29; “Report of Ambassador Gerald E. Shannon of Canada on Consultations on the Most Appropriate Arrangement to Negotiate a Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices,” CD/1299, March 24, 1995; 266 Greenpeace, “Treaty Banning the Production of Fissile Material for Nuclear Weapons and Other Nuclear Explosive Devices,” (2004); “United States of America Working Paper, Draft Treaty on the Cessation of Production of Fissile Material for Use in Nuclear Weapons or Other Nuclear Explosive Devices,” CD/1777, May 19, 2006; “Letter dated 16 September 2009 from the Permanent Representatives of Canada, Japan and the Netherlands to the Conference on Disarmament Addressed to the Secretary-General of the Conference Transmitting the Text of the ‘Draft for Discussion Prepared by the International Panel on Fissile Materials: A Treaty Banning the Production of Fissile Materials for Nuclear Weapons or Other Nuclear Explosive Devices, with Article-by-Article Explanations’ Dated 2 September 2009,” CD/1878, (Dec. 15, 2009); “Letter dated 9 April 2015 from the Permanent Representative of France to the Conference on Disarmament addressed to the Acting Secretary-General of the Conference transmitting a draft Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices prepared by the Government of France, Draft Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices,” CD/2020, (April 13, 2015);

The US and IPFM drafts of 2006 and 2009, respectively, may well have emerged in response to the failure of the 2005 conference to produce a final outcome document— though each of these drafts adopted a narrow interpretation of the issue and, therefore, failed to generate consensus or invigorate the negotiation process. The French draft of 2012 is arguably the more consultative of the drafts and the one that states currently agree could be used as a starting point for negotiations.267 It emerged in response to consensus agreement to the 64-point action plan from the 2010 review conference.

The significance of the five-yearly review conference mechanism and the effect of agreement to a final document should not be underestimated. It is perhaps no coincidence that subsequent disarmament treaties have been successfully drafted in the wake of a successful review conference that manages to produce a final outcome document by consensus agreement. This is the case for the three treaties under review: the CTBT, the Fissile Material (Cut-off) Treaty (FMCT) and the NWC/TPNW. When states are invigorated by the success of reaching consensus on a plan of action, the development of subsequent treaties appears to follow.

Balancing Disarmament and Non-proliferation

The original treaty text and the political operation of the review conference mechanism provide the impetus for subsequent disarmament treaties. Calls for progress—for greater compliance with Article VI; for concrete results—sound at each five-yearly NPT review conference. The dynamic of these meetings has been such that NNWS seek to hold NWS accountable. What if NWS, the US and Russia, were to reduce their arsenals from current levels of around 1500 to closer to zero? What effect might disarmament have on non-proliferation?

Holloway says that if the US moved towards significant reductions and ultimate elimination, ‘some of the states that have benefitted from the US policy of extended

267 This assertion is supported by the inclusion of the Group of Governmental Experts Report that is assimilated into the French draft treaty text. See: French Draft Treaty, CD/2020.; UNGA, Group of Governmental Experts to make recommendations on possible aspects that could contribute to but not negotiate a treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices, 70th session, Item 98(a), May, 7 2015, UNGA A/70/81.

deterrence might seek nuclear weapons of their own’.268 Further, he cautions that it would be unwise if reduction of existing arsenals led states that never had nuclear weapons before seek to acquire them.269 Kraemer, in testimony on the Strategic Arms Reduction Treaty (START II), recalled the statement, ‘weakness provokes aggression’, and warned that nations friendly to the US (such as Germany, Japan, South Korea and Taiwan) might be tempted to obtain their own nuclear weapons if the US were to disarm significantly.270 This is the first of two potential effects that actual disarmament might have for non-proliferation.

The second potential effect is that states that wish to acquire nuclear weapons will continue to do so regardless of whether the US or other NWS drastically reduce their arsenals. The effect of disarmament on non-proliferation will be neutral; states would proliferate regardless of the actions of the permanent five. From this perspective, disarmament will have little to no effect on non-proliferation. Holloway suggests that those who advocate for nuclear elimination argue that a new, rules-based nuclear order will be constructed so that those who break the rules are sanctioned.271 It is yet unknown how such a new nuclear order might look or how these new rules could integrate with the existing order.

According to Butler, former chair of United Nations Special Commission in Iraq, disarmament should follow naturally. The NPT envisages a world without nuclear weapons. He sees no other way to interpret the document that ‘establishes that those who do not have them must never get them and those who do have them must get rid of them’.272 The NPT review process (the implementation phase of the original treaty) is about facilitating disarmament, according to Butler.273 The curtailment of proliferation and management of the nuclear fuel cycle are simply necessary steps towards achieving

268 David Holloway, “Steps Toward A World Free of Nuclear Weapons,” in Getting To Zero: The Path To Nuclear Disarmament, eds. Catherine McArdle-Kelleher and Judith Reppy (California: Stanford University Press, 2011), 354. 269 Ibid. 270 Sven Kraemer cited in David. B. Thomson, A Guide to the Nuclear Arms Control Treaties (Los Alamos: Los Alamos Historical Society Publications, 2001), 273. 271 Holloway, “Steps Toward A World Free of Nuclear Weapons,” 354. 272 Richard Butler, “NPT: A Pillar of Global Governance,” Penn State Journal of law and International Affairs 2, no. 2 (2013): 275. 273 Ibid.

that goal. The effect that disarmament will likely have on non-proliferation (and vice versa) is clearly debatable. Annan, former UN Secretary-General, suggests that advocates from both the disarmament-first and non-proliferation-first camps only serve to produce mutually assured paralysis.274

The Law in Terms of Power

The issue affecting the existing power structure is the tension between preserving the original treaty and the requirement of a new instrument to manage disarmament. The five states that legitimately possess nuclear weapons seek to minimise any change to the original treaty while ensuring that small steps towards a subsequent treaty suffice as compliance with their Article VI obligations to negotiate and conclude a treaty on complete and general disarmament.

This CSC analysis of the NPT illuminates the entwining of ideas with power.275 The issue of wider nuclear weapons dissemination dictated a solution to the question of who could manage the threat posed by nuclear weapons. States without nuclear weapons should not be able to acquire them without requiring those states to rid themselves of nuclear weapons. The original NPT treaty supported the nuclear divide and reinforced obvious security inequalities introduced by the development of nuclear weapons. The foundation ideology of the NPT reflected the new equilibrium of power this created. Since the entry into force of the NPT, it has also sustained these relations of power. So important has it been to NWS that they have not accepted any subsequent treaty that did not serve to uphold this divide.

Once a treaty regime has commenced, it reinforces a power structure even if the ‘factual real-world’ moves on. The NPT, particularly through Article IX(3) defining a nuclear weapon state, thus, served to legitimise and reinforce the power structure in place at the time of its conclusion. The challenge for those states possessing nuclear weapons is how to maintain the power advantage that comes from this possession. For the division to hold firm, each group needs to continually work to uphold its obligations. As NNWS keep their side of the bargain by not seeking to acquire nuclear weapons, they cannot

274 Kofi Annan, “In Lecture at Princeton University, Secretary-General Calls for Progress on both Non-Proliferation and Disarmament,” SG/SM 10767 (2006) http://www.un.org/press/en/2006/sgsm10767.doc.htm. 275 Scott, The Political Interpretation of Multilateral Treaties, 164.

see how NWS can justify not doing the same. Annan empathises with those states that now view the grand bargain as a grand swindle.276 The underlying goal for NWS is seemingly to maintain the power advantage afforded to them by the original treaty.

The process of disarmament suggests a gradual reduction in the number and capabilities of nuclear weapons. This would, if taken to its logical conclusion, destroy the power advantage that the NWS acquired through the creation of nuclear weapons arsenals. If the process of disarmament were to proceed slowly, then the NWS could retain sufficient advantage to deter others from attack and hence, retain their power advantage. If NWS were to agree to a CSC founded on complete disarmament, (and hence a treaty), they would forfeit their lead. Since the entry into force of the NPT, it appears that all they have aimed to do is to slow this process. The next three chapters will provide a CSC application to three subsequent disarmament treaties that will, in all likelihood, confirm this.

Conclusion

This chapter has shown how an ideology of non-proliferation trumped disarmament. Prior to the NPT, there had been two rival ideologies: non-proliferation and disarmament. Each would have dictated a different power structure. Non-proliferation ‘won’ but disarmament was never fully defeated and was retained in the original treaty in a secondary role. Conventional treaty interpretation suggests that all substantive provisions are of equal weight—though we clearly see the dominance of the non- proliferation provisions (Articles I and II) over the disarmament provision (Article VI) in this regime.

The requirement that nuclear non-proliferation be curtailed and limited to five legitimate NWS equated to maintaining international peace and security. Consensus to a foundation ideology of non-proliferation based on the principle of differentiation led to the negotiation and entry into force of the NPT. This established an asymmetrical power structure. The idea that further proliferation would lead to security dangers is embedded in the CSC that formed the basis for negotiation of the original treaty.

276 Secretary-General Kofi Annan, In Lecture at Princeton University, November 28, 2006 SG/SM/10767, 2, http://www.un.org/News/Press/docs/2006/sgsm10767.doc.htm.

The ideology of non-proliferation was accepted as a basis for negotiating a solution to the question of how best to manage the threat of nuclear weapons. This, when applied to the CSC issue, suggests that NWS could retain their weapons but others could not acquire them. It was understandably welcomed by NWS because it reinforced the power differential created by nuclear weapons development. NWS accepted the CSC founded on non-proliferation as the backbone of the NPT regime. However, through Article VI and the preamble, a secondary CSC based on disarmament was also embedded in the original treaty:

Desiring to further the easing of international tension and the strengthening of trust between States in order to facilitate the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a Treaty on general and complete disarmament under strict and effective international control.277

NWS accepted a relatively extreme form of disarmament in this secondary CSC: one that referred to ‘elimination’ in the preamble and a ‘complete and general disarmament treaty’ in both the Preamble and Article VI. This contrasts with, for example, naval disarmament during the years between the World Wars, which involved agreeing to a ratio of weaponry that could be retained.278

If disarmament were ever to become the primary foundation ideology of a subsequent treaty, then the original treaty would be undermined. It would not be possible to defeat it, particularly because of Article VI. Compliance with Article VI of the NPT is an issue partly because of the general and complete disarmament it invokes.279 There has been a series of attempts to negotiate subsequent treaties to comply with it, but they almost inevitably fail to gain the agreement of NWS. This is because, given the logical relationship between non-proliferation and disarmament discussed in this chapter, any subsequent treaty founded on disarmament would likely undermine the power advantage of the NWS institutionalised through the NPT. If NWS were to negotiate a

277 NPT, Preamble. 278 Stephen Roskill, Naval Policy Between Wars. Volume I: The Period of Anglo-American Antagonism 1919-1929 (South Yorkshire: Seaforth Publishing, 2016): 601. 279 Daniel Rieteker, “The Meaning of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons: Analysis Under the Rules of Treaty Interpretation,” in Nuclear Non-Proliferation in International Law Volume I eds. Jonathan L. Black-Branch & Dieter Fleck (The Hague: T.M.C. Asser Press): 51, 56, 60, 68.

treaty on complete and general disarmament, they would be hard-pressed to do so without relinquishing the differential status afforded to them in the original treaty.

Having two CSCs embedded in a treaty is uncommon and has led to a stalemate. In the early years of the NPT (1970–1990), it was possible to convince NNWS that progress was being made—but NWS could not really allow that in practice. Over time, a small number of states has ‘called the bluff’ of the NWS and acquired nuclear weapons. The more this happens, the more the regime will not reflect the actual power structure determined by these maximally destructive weapons and so, the more meaningless the legal regime will be. Since the decision to indefinitely extend the treaty was taken at the review conference of 1995, pressure on NWS to produce concrete examples of compliance with Article VI has increased. A subsequent treaty on disarmament that builds on the NPT would be the most clear way by which to fulfil this obligation.

This chapter extended the analysis of the NPT undertaken by Scott,280 in particular highlighting the way consensus was garnered to a foundation ideology of non- proliferation instead of disarmament. This is arguably the seminal aspect to emerge from the NPT CSC theory application process. The next chapters will explore how a subsequent disarmament treaty might integrate and harmonise with the original treaty that mandated its negotiation.

280 Shirley V. Scott, “Article VI and the Durability of the Nuclear Non-Proliferation Regime” in The Political Interpretation of Multilateral Treaties, (Leiden: Martinus Nijhoff, 2004), 145-167.

CHAPTER THREE. THE 1996 COMPREHENSIVE TEST BAN TREATY: A SYMBIOTICALLY LINKED SUBSEQUENT AGREEMENT

The 1996 CTBT is a multilateral agreement among state parties to cease nuclear weapons testing.281 The goal of achieving a total ban on nuclear weapons testing dominated the 1995 NPT Indefinite Extension Review Conference. Even though four of the five NWS had by that stage issued moratoria on nuclear testing, the petition to conclude a comprehensive ban on nuclear weapons testing was pronounced. For NWS, retention of a power advantage in any treaty subsequent to the NPT remained paramount and required renewed dedication to the NPT, which embedded this power structure by legitimating the arsenals of the five NWS.282 Indefinitely extending the NPT would also prove necessary.

The politics of the international legal process of multilateral treaty negotiation are necessarily influenced by the existing power structure. How might the asymmetry that was established in the original treaty continue in subsequent treaties? In what way might the power structure be changed or challenged by the negotiation process of the subsequent treaty? An application of CSC theory seeks to provide answers to these questions and also to contribute to the broader question of integration and harmonisation between treaties in the nuclear arms control legal regime.

Introduction

The drive to negotiate a treaty subsequent to the NPT to manage a related yet separate issue of mutual concern creates dynamics where legal and political processes intersect.

281 Comprehensive Nuclear Test Ban Treaty (CTBT) signed September 10, 1996. Article 1(1): ‘Each State Party undertakes not to carry out any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control.’ (2) ‘Each State Party undertakes, furthermore, to refrain from causing, encouraging, or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion.’ (http://disarmament.un.org/treaties/t/ctbt/text). 282 Charter of the United Nations, Article 23, October 24, 1945, 1 UNTS XVI. Without stating the obvious, the five NWS are the same five permanent member states of the United Nations Security Council, the institution mandated by the United Nations Charter to maintain international peace and security.

Retention of a relative lead in terms of nuclear weapons capability became equal to indefinite extension of the NPT. In CSC terms, achieving this required negotiation and conclusion of a subsequent treaty on nuclear testing that maintained the foundation ideology of non-proliferation while advancing the disarmament ideology. This chapter seeks to interpret the CTBT to see whether this was the case.

Chapter Two provided a demonstration of the CSC interpretive process, through application to the original treaty, the NPT. In the previous chapter we discerned how disarmament was relegated to a second-tier issue to be dealt with in the future. By interpreting the NPT in CSC component terms, we were able to show that the foundation ideology of non-proliferation supported the legitimation goal common to members of the community of interest. This chapter will interpret the CTBT (see Appendix Two) in CSC terms and, in doing so, will provide the first of three CSC applications to subsequent disarmament treaties. These subsequent treaties could be expected to be rejected by the legal regime’s self-correcting mechanism, the stability dynamic, if they detract from or weaken the original treaty. The statement of theory provided in the first chapter deliberately omitted mention of subsequent treaties so that the information could not be subsumed by ideational component definitions or the theory’s link to structures of power. Before a CSC analysis of a subsequent treaty is undertaken here, it is worth clarifying what the theory says about subsequent treaties.

CSC Theory and Subsequent Treaties

How does CSC theory explain the interpretation of an original treaty and the inclusion of protocols and amendments to solve additional issues arising from it? The original treaty is essentially a compromise between parties. Once in force, it often generates a need for additional agreements. The treaty creates a legal regime that becomes operational during the implementation stage. Over time, both new and unresolved issues may emerge as sub-CSCs and these may require negotiation of a subsequent treaty. For Scott, this phenomenon can be understood as a process of regime self-correction ‘by which a proposed treaty text that would not have reinforced the original foundation ideology was discarded in favour of one that did’.283 The operation of a stability dynamic is identified as a process of regime self-correction. Once discerned, this

283 Scott, The Political Interpretation of Multilateral Treaties, 169.

dynamic of rejection and acceptance can be said to characterise a successful and hence, durable regime.284 The question in CSC terms is how the regime acts to self-correct to tighten and maintain the nexus between the CSC issue, the foundation ideology and the CSC solution?285

It appears that when a sub-optimal treaty is adopted, increased subsequent treaty development often occurs.286 State parties hope that agreement on a minor aspect will generate a climate conducive to reaching agreement on more important provisions. When this occurs, another legal and political process is born. As further attempts to solve a less-than-perfect treaty emerge, the result is a legal regime complex composed of separate yet related agreements.287 Subsequent treaties also contain sub-CSCs.288 The foundation ideology of a subsequent treaty will underpin the solution to the issue and will reinforce the original CSC myth and hence, the original foundation ideology.289 In a durable regime, a proposed treaty that does not reinforce the original foundation ideology and its power structure would, according to CSC theory, likely be discarded in favour of one that does.290 If this were not to occur it would likely indicate a weakened regime or reflect changes to the power structure. Scott proposes that the regime can evolve to reflect changes in structural relations.291

Precisely how such a subsequent treaty, one that manages an issue that the original could not deal with, integrates or harmonises with the original treaty is being sought via application of the interpretive process that CSC theory provides. In every

284 Ibid. 285 Ibid., 187. 286 While this appears common, it is not always the case. There are instances when treaties fail to enter into force or circumstances change such that the treaty is no longer required by states to manage the issue of mutual concern. 287 The term ‘regime complex’ began to be used after CSC theory was developed. See: Armandine Orsini, Jean-Frédéric Morin, and Oran Young, “Regime Complexes: A Buzz, a Boom, or a Boost for Global Governance?” Global Governance 19 (2013): 27–39; Oran Young, “Building an International Regime Complex for the Arctic: Current and Next Steps,” The Polar Journal 2, no. 2 (2012): 391–407. 288 Scott, The Political Interpretation of Multilateral Treaties, 169. 289 Ibid. 290 Ibid., 116–117. 291 Ibid., 117.

interdisciplinary treaty interpretation process that utilises CSC theory the starting point is to discern the CSC issue, to determine what gave rise to the treaty.

CSC Issue

US President Clinton declared the CTBT to be ‘the longest-sought, hardest-fought prize in the history of arms control’.292 There exists a long history of test ban treaties and moratoria on testing dating back to the 1950s,293 but none had definitively and comprehensively prohibited physical nuclear testing. A CSC likely evolved in the 1950s around the time of President Nehru’s call for a standstill agreement; this is when states began to consider how best to manage nuclear weapons testing (the issue of mutual concern).294 However, the CSC issue that gave rise to the adoption of the CTBT treaty text can be traced to the mid-1990s and the lead up to multilateral negotiations immediately following the 1995 NPT review conference.

The drive to conclude a comprehensive test ban treaty stemmed primarily from NNWS dissatisfaction with NWS progress towards complete and general disarmament. This may be equated to dissatisfaction with compliance with Article VI of the NPT. Additional impetus also came from a burgeoning concern about renewed proliferation with India and Pakistan entering the testing phase. It would seem that the decision to extend the NPT indefinitely in 1995 served as a catalyst for the drafting and opening for signature of the CTBT in 1996.

The CTBT can only be understood as arising from the NPT. From the outset the grand bargain negotiated in the NPT text entitled NNWS to a promise of steps towards disarmament by the five NWS and the sharing of peaceful nuclear energy technology.295 In return, the NWS agreed not to seek to acquire nuclear weapons and, in this way,

292 Address by President Bill Clinton to the UN General Assembly, 52nd session, September 22, 1997, http://www.state.gov/p/io/potusunga/207553.htm. 293 As early as 2 April 1954, Indian President Nehru called for a ‘Standstill Agreement’ on nuclear testing; The Limited Test Ban Treaty (also known as the Threshold Test Ban Treaty) (TTBT) entered into force on 10 October, 1963; The Bilateral Threshold Test Ban Treaty signed 3 July, 1974 and the Peaceful Nuclear Explosions Treaty (PNET) signed 28 May, 1976; Verification Protocols to both TTBT and PNET were signed 1 June, 1990 and the treaties entered into force 11 December, 1990. 294 Scott, The Political Interpretation of Multilateral Treaties, 12. 295 NPT, Articles IV and VI, https://treaties.un.org/doc/Publication/UNTS/Volume%20729/volume- 729-I-10485-English.pdf.

proliferation of nuclear weapons was capped. The test ban treaty was framed as the first effective measure towards disarmament:

From the beginning, the non-nuclear weapon states viewed the CTBT as the litmus test in judging whether nuclear weapon states were upholding their end of the bargain. For twenty years after the NPT entered into force in 1970, as stated, most of the NPT Review Conferences—held every five years— essentially failed over the issue of the United States and Soviet commitment to completing a CTBT.296

The preamble of the NPT contains direct reference to a comprehensive test ban treaty.297 The NPT was negotiated with the explicit understanding that such a treaty would follow as a means of demonstrating a clear commitment of NWS to uphold their end of the grand bargain.298 From this, we can deduce that the CSC itself, and not the CSC issue, emerged as early as 1954 when Indian President Nehru proposed the Standstill Agreement and the issue of mutual concern raised was incorporated into negotiations of the NPT in 1968.299 The CSC issue of mutual concern could be expressed as: Who is going to manage the issue of nuclear testing and how? However, this does not adequately answer the question of what gave rise to the CTBT. A more rigorous contextual interpretation of the CSC issue is required. Ideally, this is one that more adequately incorporates legal regime dynamics and power structure changes and also accounts for the political circumstances in which the CTBT was actually negotiated.

To interpret the CSC issue for any multilateral treaty, the treaty text and the political context must be taken into account. We aim to identify what facilitated adoption of the treaty text and what led to direct calls for its negotiation. The notion that nuclear testing was bad and should cease enjoyed considerable international consensus. This CSC emerged in the 1950s and is the original idea around which actors’ expectations

296 Thomas Graham Jr., “Comprehensive Nuclear Test Ban Treaty,” United Nations Audiovisual Library of International Law (2009), http://legal.un.org/avl/pdf/ha/ctbt/ctbt_e.pdf. 297 NPT, Preamble: ‘Recalling the determination expressed by the Parties to the 1963 Treaty banning nuclear tests in the atmosphere, in outer space and underwater in its preamble to seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and to continue negotiations to this end’ (https://treaties.un.org/doc/Publication/UNTS/Volume%20729/volume-729-I-10485- English.pdf). 298 Ibid. 299 Jawaharlal Nehru, “Standstill Agreement,” Statement of the Prime Minister in the Lok Sabha, April 2 1954.

converged. As already noted, the CSC is separate from the CSC issue. Therefore, the more pertinent question is one that more closely examines what prompted the treaty text to be finalised? What led it to open for signature? When considered in this way, the CSC issue for the CTBT is: How can the NPT be indefinitely extended given dissatisfaction of NNWS with NWS compliance with Article VI? Interpreting the CSC issue simply in terms of states wanting to manage nuclear testing fails to account for 25 years of inaction on the matter. We need to explain what prompted the negotiation and adoption of the treaty text some two and a half decades after the NPT entered into force.

The CTBT was called for at each and every NPT review conference from 1970 to 1995. Further, failure of the 1990 review conference to achieve a consensus outcome document was due to lack of progress towards negotiation of a test ban treaty. There was agreement that it was needed but consensus could not be reached on how and when to negotiate it. With the requirement of NPT Article X(2) looming, a deadline was created.300 The 1995 review conference required a decision on the life of the NPT— whether it should continue as the cornerstone nuclear arms control treaty or be replaced.301 Looming uncertainty of what could possibly replace it also enabled indefinite extension of the NPT. It was the promise of a test ban treaty, in compliance with Article VI, and to be concluded within a year that arguably persuaded NNWS to vote to indefinitely extend the NPT.302 The promise was kept: the treaty text was indeed negotiated and concluded within the 12 month window.

300 NPT, Article X (2): ‘Twenty-five years after the entry into force of the Treaty, a conference shall be convened to decide whether the Treaty shall continue in force indefinitely, or shall be extended for an additional fixed period or periods. This decision shall be taken by a majority of the Parties to the Treaty’ (https://treaties.un.org/doc/Publication/UNTS/Volume%20729/volume-729-I-10485- English.pdf). 301 See Jayantha Dhanapala, “The 2015 Review Conference for the Treaty on the Non-Proliferation of Nuclear Weapons: A Review or a Requiem?” Global Governance 21, no. 1 (Jan – March 2015): 1. “The permanence of the treaty does not represent a permanence of unbalanced obligations, nor does it represent a permanence of nuclear apartheid between nuclear haves and have-nots. What it does represent is our collective dedication to the permanence of a legal barrier against nuclear proliferation so that we can forge ahead in our tasks towards a nuclear weapon-free world.” 302 Alessandra Pietrobon, “Nuclear Powers’ Disarmament Obligation under the Treaty on the Non- Proliferation of Nuclear Weapons and the Comprehensive Test Ban Treaty: Interactions between Soft Law and Hard Law,” Leiden Journal of International Law 27 (2014): 177.

Even though the CTBT enjoys wide participation,303 it has yet to enter into force. While only tangentially relevant to the question of what gave rise to the treaty, it is important to know how and why the obstacle to its entry into force came to be incorporated into its text. What political manoeuvring took place and what goals did state parties seek to achieve? A quest for universality came from a range of actors from across the NWS, NNWS, and outlier states.

Entry into Force Provision and the Path to Adoption

Negotiation of the CTBT treaty text took place in the Conference on Disarmament (CD) from 1994–1996. In a bid to promote universality during the negotiation phase, China and the Russian Federation, supported by the United Kingdom, insisted that India, Israel and Pakistan must be state parties for the CTBT to enter into force.304 Notably, China refused to commit to stop nuclear testing unless India made a similar commitment.

The chair of the CD Ad Hoc Committee for the negotiations, Jaap Raameker of the Netherlands, attempted to craft an entry into force article that would not single out India or any other threshold states.305 He cast the net wide, proposing that the required state parties—those that must ratify the CTBT for it to enter into force—should be member states of the CD ‘that participated in the negotiations from 1994–1996 and that possessed nuclear power reactors or research reactors at that time’.306 These became known as Annex II states. Their number totalled 44 and included the Democratic People’s Republic of North Korea (DPRK), India and Pakistan, all of which have yet to ratify the treaty. For this reason alone, the CTBT has failed to enter into force.

The Ad Hoc Committee responsible for the negotiation of the treaty text was able to resolve all outstanding issues except India’s objection to Article XIV, the entry into force provision.307 The finalised text was due to be sent to the UNGA to be adopted and

303 To date, 183 State signatories and 166 states have ratified. https://www.ctbto.org/the- treaty/status-of-signature-and-ratification/. 304 Report on the Conference on Disarmament, U.N. GAOR, 51st Session Supp. No. 27, at 26, U.N. Doc. A/51/27 (1996). 305 Graham, “Comprehensive Nuclear Test Ban Treaty,” 4. 306 CTBTO, Glossary, https://www.ctbto.org/glossary/?letter=a&cHash=4d181e9a0c. 307 See: Report on the Conference on Disarmament, U.N. GAOR, 51st Session Supp. No. 27, at 26, U.N. Doc. A/51/27 (1996).

opened for signature but India blocked the committee from submitting its report and created an obstacle to forwarding the draft text to the UNGA without submitting the report, effectively creating a double bind.

To bypass the CD and bring the CTBT to the UNGA for adoption, the US approached Mexico, Australia and New Zealand, all of which had each year introduced a resolution calling for a CTBT.308 Australia agreed to introduce a resolution to approve the opening for signature of the attached draft of a CTBT.309 It passed by a vote of 158 to three and five abstentions,310 and opened for signature on 24 September 1996, as the NWS promised the NNWS at the 1995 review conference.

Consequences of Non-Entry into Force

While the CTBT opened for signature within the year as promised in return for indefinite extension of the NPT, the provision requiring ratification by all 44 Annex II states has prevented the treaty from entering into force.311 Thakur et al. remind us of the late entry of China and France as state parties to the NPT in 1992 and notes that had the NPT’s entry into force mechanism been analogous to that of the CTBT—it too would not have entered into force.312 In addition to the three states that have yet to sign the treaty (DPRK, India and Pakistan), five states have signed but not ratified: China, Egypt, Israel, Iran and the US. In anticipation of this extended delay towards entry into force, the treaty text (via Article II) established a new institution inclusive of a biannual conference process to encourage entry into force and ensure preparedness for the moment this is achieved.313

308 For a more detailed account of Australia’s role, see: Wolfgang Hoffman, “Towards the End of Nuclear Testing: The CTBT and Australia,” Sydney Papers 12, no. 2 (2000): 20–26. 309 UNGA Resolution, “Comprehensive Test Ban Treaty,” September 10, 1996, A/RES/50/245, UNGA. 310 No votes from India, Bhutan and Iraq and abstention votes from Cuba, Lebanon, Syria, Mauritius and Tanzania. 311 David Lenefsky, “The Entry Into Force Provision of the Comprehensive Test Ban treaty: An Example of Bad International Lawyering,” New York Law School Journal of International and Comparative Law 19 (1999–2000): 261–263. 312 Thakur et al., “Can the NPT Regime be Fixed,” 5, ftnt 3. 313 CTBT, Article II.

The Comprehensive Test Ban Treaty Organization (CTBTO) was established to lobby and prepare for the entry into force of the CTBT. The CTBTO convenes biannual Article XIV Conferences to accelerate this process. Additionally, the CTBTO has worked to establish monitoring and data sharing systems so that a complete verification system is operational as soon as the treaty commences.

Signatory states are nonetheless obliged to comply with the provisions of the treaty.314 According to Article 18 of the VCLT, a signatory state is:

[Obliged] not to defeat the object and purpose of a treaty prior to its entry into force … until it shall have made its intention clear not to become a party to the treaty; or b) has expressed its consent to be bound by the treaty, pending its entry into force of the treaty and provided that such entry into force is not unduly delayed.315

This applies in particular to China and the US. Both have signed but not ratified the CTBT and they are both NWS parties of the NPT. Egypt and Iran are NNWS parties to the NPT and Israel has neither signed nor ratified the NPT.

Though the CTBT has not entered into force,316 it remains a vital nuclear arms control instrument. What has been achieved, regardless of the status of the treaty, is that the norm of non-testing has become undeniable.317 In readiness for entry into force, states have cooperated to establish an international monitoring system and data sharing network. Technological advances coupled with interstate data sharing have made the international monitoring system foolproof. These verification systems have effectively eliminated the possibility of a nuclear test going undetected and this has fostered increased transparency among states—a key prerequisite for disarmament.

An in-force CTBT would prohibit development of new sophisticated nuclear weapons. Coupled with the operational strength of the worldwide international monitoring system, it should make it impossible for additional states to acquire nuclear weapons,

314 Masiko Asada, “CTBT: Legal Questions Arising From its Non-Entry-Into-Force,” Journal of Conflict and Security Law 7, no. 1 (2002): 121. 315 Vienna Convention, Articles 18 a) and b). 316 Status of Signature and Ratification: total signed 183, total Ratified 166, accessed October 22, 2017, https://www.ctbto.org/the-treaty/status-of-signature-and-ratification/. 317 Brian Finlay, “CTBT What Chance?” Carnegie Endowment for Peace Conference, Stimson Centre (2015): 2.

except those of the crudest type, too heavy and unwieldy to be integrated with a missile system. According to US negotiator Thomas Graham Jr., an operating CTBT regime would be a step towards the ultimate goal of eliminating nuclear weapons worldwide and would also constitute compliance with Article VI of the NPT.318

In Relation to the NPT

The original treaty confirmed a power structure and enshrined the principle of differentiation by delineating two distinct state party classifications and creating a political dynamic based on the grand bargain.319 NWS are obliged to work towards complete and general disarmament. NNWS are to receive assistance should they seek to acquire nuclear energy for peaceful purposes. The NPT review conference mechanism serves to monitor the status of this bargain.

In five-yearly intervals at each NPT review conference NWS are challenged on their lack of compliance with Article VI.320 Each of the five NWS must outline their plans for the coming five years to communicate how they intend to work effectively towards complete and general disarmament. After 25 years of relative inaction, NNWS became disillusioned and doubted whether NWS would take real steps towards disarmament. As the 1995 NPT review conference neared, a decision was required: to indefinitely extend the life of the treaty or to allow it to cease to operate.321 This implementation or operational phase of the NPT via the review conference mechanism provides states with

318 Graham, “Comprehensive Nuclear Test Ban Treaty,” 6. 319 The ‘grand bargain’ can be thought of as an interplay or balance of obligations to ensure non- proliferation and move towards a nuclear-weapons-free world. NWS are called on to eliminate their arsenals (Article VI) and not to assist NNWS to acquire nuclear weapons (Article I). NNWS forgo the acquisition of nuclear weapons (Article II) and agree to place all of their nuclear facilities under international safeguards (Article III). Paraphrased from Weiss, L., “Nuclear Weapons States and the Grand Bargain,” Arms Control Today (2003), https://www.armscontrol.org/act/2003_12/Weiss. According to Thomas Graham Jr. the ‘bargain was, and is, non-proliferation in exchange for the sharing of peaceful technology and nuclear disarmament’ (Graham, “Comprehensive Nuclear Test Ban Treaty,” 1). 320 NPT, Article VI: ‘Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control’ (http://disarmament.un.org/treaties/t/npt/text). 321 NPT Article X (2): ‘Twenty-five years after the entry into force of the Treaty, a conference shall be convened to decide whether the Treaty shall continue in force indefinitely or shall be extended for an additional fixed period or periods. This decision shall be taken by a majority of the Parties to the Treaty’

an opportunity to raise subsequent issues of mutual concern and also monitor compliance with the provisions of the original treaty. The review process is integral to subsequent treaty emergence and development.

In 1995, as an obvious majority, the NNWS had something of an advantage for the first time. They had the numbers and, therefore, the power to block indefinite extension and thereby to dissolve the original treaty. The NWS lobbied for indefinite extension and quite obviously sought to retain their status and the accompanying legitimacy afforded to their nuclear arsenals. In response, the NNWS issued a firm and unequivocal request that the CTBT text be finalised and opened for signature.322 The final outcome document decisions included the following requests: universality for the regime, expansion of nuclear-weapons-free zones, transparency in export of nuclear material for peaceful purposes and safeguard agreements for fissile material.323 The deal that was struck between NWS and NNWS in 1995 could be colloquially termed a ‘minor bargain’.324

The leverage that the NNWS utilised against NWS at the 1995 review conference did not translate into concrete action. In retrospect, this short-lived position of power was squandered on calling for the CTBT to open for signature within a year; all other requests fell largely to the wayside. It would appear that the NNWS did not maximise their position; if their goal was to compel Article VI compliance and, therefore, a treaty on complete and general disarmament, they could be viewed as having failed. However, it must be noted that the uncertainty of what would replace the NPT if it ceased to operate was also a negotiation point used by NWS.

It is clear that an interpretation of the CSC issue cannot be undertaken without a contextual understanding of the stage in the treaty ‘life’ of the NPT. Both treaties, the NPT and CTBT, are inextricably linked. The CSC issue that gave rise to the adoption of the CTBT text is: how can the NPT be indefinitely extended, given the dissatisfaction of NNWS with NWS compliance with Article VI. In real-world terms, a ban on physical

322 Decision 2, Nuclear Disarmament 4 (a), NPT/CONF.1995/32, 164. ‘The completion by the Conference on Disarmament of the negotiations on a universal and internationally and effectively verifiable Comprehensive Nuclear-Test-Ban Treaty no later than 1996. Pending the entry into force of a Comprehensive Test-Ban Treaty, the nuclear-weapon States should exercise utmost restraint’ 323 Ibid. 324 This is a term I have coined to describe the deal made in 1995 between the NWS and NNWS.

nuclear weapons testing slows proliferation. Simply put, a state cannot be considered nuclear weapons-capable without first testing its nuclear weapons. The next CSC component to interpret is the community of interest. Here, we seek to identify those parties that express an interest in participating in the resolution of the issue under consideration.325

Community of Interest

Due to the fact that the CTBT was initiated, promised and then negotiated within the context of the NPT review conference process, it is reasonable to suggest that state parties to the NPT make up the community of interest. According to Scott, ‘different actors may perceive or enunciate different definitions of the CSC Issue’.326 From this we can identify the interests of state parties to the NPT and certain members of the community of interest to whom indefinite extension of the NPT was more vital. The five NWS arguably had more at stake in this debate. Therefore, they might be considered higher-stake participants in the community of interest even though all state parties to the NPT should be considered part of the community of interest for the CTBT.

As with the CSC issue, interpretation of this component of CSC theory also requires knowledge of the political context; those in the community of interest can only be identified on the basis of a political background to the treaty whereas states party to a treaty can be identified from the status list.327 The community of interest of the CTBT is clearly the five NWS and members from the NNWS camp. Outlier states (such as India) that do not participate in NPT review conferences still play a role through the CD and UNGA.328

The indefinite extension review conference of 1995 was attended by 175 state parties. They were unable to agree to a final outcome document and instead agreed to three separate decisions, each proposed by the conference president, Jayantha Dhanapala of

325 Scott, The Political Interpretation of Multilateral Treaties, 15. 326 Ibid., 112. 327 Ibid. 328 See: Arundhati Ghose, “Negotiating the CTBT: India’s Security Concerns and Nuclear Disarmament,” Journal of International Affairs 51, no.1 (1997): 239–261.; Dinshaw Mistry, “Domestic-International Linkages: India and the Comprehensive Test Ban Treaty,” The Nonproliferation Review 6, no.1 (1998), 25-38

Sri Lanka. Decision One was titled Strengthening the review process for the Treaty. Decision Two, which included the undertaking that the CTBT would be negotiated within the year, was titled Principles and Objectives for Nuclear Non-Proliferation and Disarmament. Decision Three was titled Extension of the Treaty on the Non- Proliferation of Nuclear Weapons.329

Legitimation Goal

The next step in the CSC theory application process is to determine what legitimation goal was common to the negotiating states. The negotiating states, or community of interest, of the CTBT is considerably larger than that of the original treaty. This would suggest that a common goal may be hard to discern for the subsequent treaty. According to Scott, the legitimation goal is the self-interested competitive goal that negotiating states had in common that gave rise to the perceived need for a regime.330 This aspect of the interpretive process benefits from adoption of a cost-benefit ‘lens’ to discern the goal that is not overtly referred to in the treaty text but must rather be inferred from an examination of the political process of negotiating a subsequent multilateral treaty. It can also be useful to examine the actions and rhetoric of powerful states in the negotiation process when attempting to reveal the self-interested goal they had in common.331

The litmus test for interpretation of a legitimation goal is that if all parties were to continue to pursue it, absent a treaty, they would either fail to achieve it or come into conflict with each other.332 If we consider the issue of nuclear weapons testing around 1995, the goal at this stage was to prevent other aspiring nuclear states from testing. The NWS (the US, UK, Russia, China and France) no longer needed to physically test their

329 1995 Indefinite extension Review Conference of the Parties to the Treaty on the Non- Proliferation of Nuclear Weapons, NPT/CONF. 1995/32 (Part I), “Annex, Principles and Objectives for Nuclear Non-proliferation and Disarmament” (Decision 2). This was the second of three “Decision Documents” taken at the conference. Decision 1 dealt with enhanced review processes for the NPT. Decision 3 enshrined the decision to indefinitely extend the NPT and includes the Resolution on the Middle East. “Annex, Extension of the Treaty on the Non-proliferation of nuclear Weapons” (Decision 3). 330 Scott, The Political Interpretation of Multilateral Treaties, 13. 331 Powerful states in this regime have been explained to be the five states that can legitimately possess nuclear weapons according to Article XI (3) of the NPT. They are also afforded permanent member status of the United Nations Security Council. 332 Scott, The Political Interpretation of Multilateral Treaties, 13 and 109.

weapons, while Pakistan, India, Iran and North Korea would still benefit from physical nuclear weapons testing. From this we can understand the legitimation goal to be to be able to test oneself but for no-one else to be allowed to do so.

Although indefinite extension of the NPT was sought by NWS, this cannot be interpreted as the legitimation goal. The goal of indefinite extension of the NPT would reinforce the existing power structure and may well be a preference for NWS. However, the goal of generating consensus to indefinite extension is more akin to the CSC issue. The legitimation goal must instead lead to the need for the treaty. The goal of implementing an obstacle to block the path of aspirant nuclear states is a goal shared by the community of interest, comprising both NWS and NNWS.

In Relation to the Goal of Non-proliferation

Control of nuclear testing had been sought for over half a century that began with India’s call for a standstill agreement in 1954.333 Nuclear testing was prolific in the 1950s and 1960s, with the US and USSR conducting hundreds of tests.334 France and China began testing in 1960 and 1964, respectively. US President Eisenhower drafted the first proposal to ban nuclear testing in 1957 and, in 1958, the Soviets declared a moratorium on testing conditional on Western nations agreeing to follow suit. A long and active history of stopping and resuming testing exists amongst nuclear powers. When only the US, UK and former USSR had nuclear weapons, a test ban was conceived in terms of how it might alleviate the ‘fourth country problem’ and also be a potentially ‘cheap way to inhibit proliferation’.335

333 Nehru, Standstill Agreement 1954. 334 National Resources Defense Council data: US 1030 nuclear tests, USSR 715, United Kingdom 45 (24 were held jointly with the US but are not added to the US total) France 210 and China 45: Mary Beth D. Nikitin, “Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments,” Congressional research Service (September 1 2016), http://www.fas.org/sgp/crs/nuke/RL33548.pdf. 335 George Jaegar, “George Jaeger, Office of Intelligence Research, U.S. State Department to Mr. Terrill et al., Draft Background Paper on Nuclear Testing and the ‘Fourth Country’ Problem, enclosing paper on same subject from the ‘The President’s Special Committee on Disarmament Problems’,” 16 May 1957, Secret, State Department FOIA Release; Philip J. Farley, “Phillip J. Farley, Special Assistant to the Secretary for Atomic Energy, to Joseph Wolf, Director, Office of Political Affairs, USRO [US Mission to the North Atlantic Treaty Organization and European Regional Organizations],” 28 March 1958, Secret, National Archives, Department of State Records, Record Group 59, box 349, 18.14 Weapons Test Moratorium f. Unilateral Suspension by the USSR.

The underlying reason that NWS advanced the CTBT to the signature stage was to ensure that no other state could test their weapons and hence, demonstrate nuclear weapons capability. The goal was to prevent any additional states, be they outlier or NNWS, from gaining nuclear weapons capabilities. In doing this, their status as NWS could also be preserved. The potential benefit of a test ban treaty curbing nuclear proliferation had been considered and discussed by US, UK and Soviet officials since the 1950s.336

There have been additional incremental multilateral treaty achievements in this area, namely the Partial Test Ban Treaty (PTBT) of 1963337 and Threshold Test Ban Treaty (TTBT) of 1990.338 The PTBT banned all but underground explosions and the bilateral TTBT banned any explosion 150 kiloton or larger.339 The Limited Test Ban Treaty of 1963 facilitated management of the testing issue but contained enough loopholes to allow powerful states to continue to pursue their goals of ‘having better weapons than their adversaries’ (this being the legitimation goal of the NPT). By only banning atmospheric testing, the Limited Test Ban Treaty allowed underground testing, which then spiked in frequency.340

The testing of nuclear weapons serves two purposes: it demonstrates the operability of a state’s nuclear arsenal and confirms qualitative improvements in nuclear weapons capabilities. By 1995, when pressure was greatest for the CTBT to open for signature,

336 William Burr (ed.), “The Test Ban Challenge: Nuclear Non-Proliferation and the Quest for a Comprehensive Test Ban Treaty, Government Officials Since Eisenhower Have seen Comprehensive Nuclear Test Ban as Vital for Curbing Nuclear Proliferation, According to Declassified Documents,” The Nuclear Vault, 11 August 2010, http://nsarchive2.gwu.edu//nukevault/ebb323/index.htm. 337 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963. 480 UNTS 43. This treaty is interchangeably referred to as the Partial or Limited Test Ban Treaty (PTBT or LTBT). They are not separate instruments. All tests except for underground testing are prohibited. 338 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Underground Nuclear Weapon Tests (and Protocol Thereto) (TTBT), July, 3, 1974. 1714 UNTS 123. 339 TTBT, The US and USSR abided by the threshold limitation but did not ratify until the Treaty Between the United States of America and the Union of Soviet Socialist Republics on Underground Peaceful Nuclear Explosions for Peaceful Purposes (PNET) also entered into force. 28 May, 1976. 1714 UNTS 387. This established additional agreement on verification provisions. 340 Preparatory Commission for the Comprehensive Test Ban Treaty Organization, “1963-1977: Limits on Nuclear Testing,” https://www.ctbto.org/the-treaty/history-1945-1993/1963-77-limits-on- nuclear-testing/ Accessed June 1, 2018.

the NWS no longer needed to either confirm their arsenals’ operability or make further improvements.341 Additionally, NWS had developed or were developing means of virtual nuclear testing, again eliminating the need for physical testing. The US, through the Stockpile Stewardship Program, ‘maintains the reliability of US weapons in the absence of testing through the use of supercomputers, lasers and other experimental capabilities to model nuclear weapons performance, maintain an ageing arsenal and train a new generation of weapons scientists’.342 The recent US Nuclear Posture Review of 2018 charts the need for nuclear weapons modernisation, yet still reaffirms commitment, on the same original terms, to the moratorium.343

The last Russian test took place in 1990344 and the last US test took place in 1992.345 Through enactment of Hatfield-Exon-Mitchell legislation, the US in 1992 issued a commitment to stop all testing by 1996.346 They had performed testing for the UK and this stopped a year earlier in 1991.347 On 29 July 1996, the same day as its 45th nuclear test, China announced a self-imposed moratorium concurrent with its aversion to participating in earlier test ban treaties. France also ceased testing in 1992 under President Mitterrand but resumed again in June 1995 under President Chirac—to which there was considerable international outrage. France held firm, assuring the

341 With the exception of France, which continued to test nuclear weapons until 1996. 342 “20 Years of Success: Science, Technology and the Nuclear Weapons Stockpile,” National Nuclear Security Administration (NNSA), October 2015 https://nnsa.energy.gov/sites/default/files/nnsa/inlinefiles/20151118%20- %20ssp%2020%20brochure.pdf; See: Steven Pifer on whether the US stockpile can be reliably maintained—indefinitely into the future—without testing in Steven Pifer, “The Comprehensive Test Ban Treaty and Stockpile Maintenance,” in The Opportunity: Next Steps in Reducing Nuclear Arms, eds. Steven Pifer and Michael O’Hanlon (Washington D.C.: Brookings Institution Press, 2012), 141–148. 343 “Nuclear Posture Review,” Office of the Secretary of Defense (2018), 23, 87, 96, https://media.defense.gov/2018/Feb/02/2001872886/-1/-1/1/2018-NUCLEAR-POSTURE- REVIEW-FINAL-REPORT.PDF. 344 Russia’s last nuclear test was on 24 October, 1990: Robert Sherman, “Comprehensive Test Ban Treaty Chronology,” FAS Weapons of Mass Destruction, http://www.fas.org/nuke/control/ctbt/chron.htm. 345 The last US Test from a total of 1030 took place on 23 September, 1992 (https://www.armscontrol.org/issuebriefs/No-Going-Back-20-Years-Since-the-Last-US-Nuclear- Test%20). 346 Pierce S. Corden, “The CTBT: Issues and Answers” in Chapter 3 of The CTBT the United States Perspective, International Security and Nuclear Policy Division US Arms Control and Disarmament Agency, 1. 347 26 November 1991: Nevada testing was conducted for the UK by the US.

international community it needed time to calibrate its equipment to facilitate virtual testing. Chirac pledged to complete the country’s eight tests in time to sign the CTBT.348 What this demonstrates is that nuclear weapons testing by NWS was neither the CSC issue nor was cessation of NWS testing a significant part of the CSC solution that the subsequent treaty was expected to manage. Through the issuing of moratoria each NWS managed the issue of physical nuclear weapons testing unilaterally.

In Relation to the NPT

Prima facie, was the management of nuclear testing effectively complete? By 1996 all five NWS had committed to cease testing. Why then was a comprehensive test ban treaty sought? Was it perhaps a non-proliferation measure disguised as a disarmament measure? India and Pakistan were preparing to display their military strength. This resulted in a series of tests by both states in 1998.349 Was the test ban treaty intended to stop a ‘breakout’ of new nuclear states? Was the CTBT intended to stop those with nuclear ambitions such as Iran and the DPRK? Could it be that the legitimation goal for the five states that had already attained NWS status simply be to maintain their rare position? Could they have sought to retain and protect the legitimacy of their status indefinitely? This certainly seems plausible but preservation of the differentiation principle—of the divide established by the original treaty—does not directly lead to the need for a treaty that bans nuclear weapons testing. This may explain why the NWS supported the negotiation of the treaty text so strongly—but it does not directly address the aims of NNWS.

In light of the declared moratoria on testing, negotiation of a comprehensive test ban treaty would surely only prevent emergence of additional nuclear capable states. A CTBT would not significantly affect the existing NWS for which further physical testing was unnecessary. As a disarmament measure, the treaty would do very little in practice to reduce nuclear weapon numbers. The moratoria on testing issued by NWS

348 France resumes nuclear testing 13 June 1995, sixth and final nuclear test January 27, 1996. See: Federation of Atomic Scientists, “Comprehensive Test Ban Treaty Chronology,” http://www.fas.org/nuke/control/ctbt/chron.htm & Keith Suter, “The Resumption of French Nuclear Testing, Medicine, Conflict and Survival 11 no. 4 (1995): 223. 349 Pakistan tests nuclear devices 30 May, 1998 & 28 May, 1998. India tests nuclear devices 13 May, 1998 & 11 May, 1998. FAS, Chronology.

prove that a legal ban on testing was relatively inconsequential; to cease testing would not be detrimental to their programs. Conversely, former US Deputy Energy Secretary Charles Curtis said that the 1995 effort to negotiate a test ban treaty was an adversarial act on the part of the US.350 Further, it was a clever way of ‘freezing nuclear weapons development at a moment when the US had the most advanced designs’.351

The legitimation goal for the subsequent treaty echoed that of the original; the prevention of horizontal proliferation remained paramount. For the NPT this goal was to enhance national security by having better weapons than one’s potential adversaries. It is logical to assume that NWS would not want to lose the status afforded them through the NPT but this could not be overtly stated. This concurs quite precisely with what CSC theory says about the legitimation goal as self-interested, competitive and masked. The legitimation goal of retaining better weaponry than a potential adversary could not be declared openly—but the goal of preventing others from testing and achieving nuclear status could be clearly articulated and promoted.

Foundation Ideology

A comprehensive ban on nuclear weapons testing should theoretically limit modernisation plans. NWS are encouraged to halt development of their respective arsenals, a limitation that could potentially result in devaluation of their nuclear weapons as they begin to age. This disarmament narrative is premised on the idea that as physical nuclear weapons testing ceases, so too do displays of military might and power. This absence of power play (and one-upmanship) and the absence of public displays of nuclear capabilities could lead to dwindling appreciation and, therefore, a diminished need for the weapons themselves.

What then provided the basis on which parties agreed to negotiate a solution to the issue of mutual concern? Did states really agree to principles of complete and general disarmament by allowing nuclear arsenals to deteriorate and become devalued? The foundation ideology must generate consensus for NWS and NNWS. For NWS, the direct and indirect benefits of a ban on nuclear testing had been discussed in secret for

350 Charles Curtis in Hugh Gusterson, “A New Push for the Comprehensive Test Ban Treaty,” Bulletin of the Atomic Scientists (October 2015), 2. 351 Ibid.

decades.352 These changed according to international circumstances but, in 1978 for example, some direct benefits were that a CTBT would formalise India’s pledge not to explode further devices, resolve the proliferation danger in South Africa and prevent both Argentina and Brazil from utilising the peaceful nuclear explosion loophole in the Treaty of Tlateloco.353 For NNWS, some indirect benefits of a test ban treaty would be the reduced role and prestige of nuclear weapons, concrete fulfilment of Article VI obligations and affirmation of NWS commitment to halting vertical proliferation.354 From this, we can identify why a foundation ideology based primarily on non- proliferation, while also incorporating elements of a disarmament ideology, albeit to a lesser degree, could generate the necessary support from both NWS and NNWS. Viewing the foundation ideology of the CTBT as broadly representing the disarmament camp is both flawed and incomplete without reference to the NPT foundation ideology (and their mutually supportive relationship).

Cessation of nuclear weapons testing constitutes both a non-proliferation measure and a disarmament measure.355 In this way, the CTBT incorporates both ideologies. Prohibition of nuclear testing seeks to safeguard international peace and security by relieving the international community from the upheaval, condemnation and sanctions that necessarily result from a nuclear test. International security is enhanced by an absence of physical nuclear explosions because proof of capability, a vital aspect of the security dilemma, is removed. With the demonstration aspect of nuclear weapons capability removed, states need not seek to modernise, nor work to remain in an arms race propelled by another state’s display of nuclear power. By comprehensively banning nuclear testing, this irrefutable by-product of nuclear weapons testing becomes largely redundant.

352 William Burr (ed.), “The Test Ban Challenge: Nuclear Nonproliferation and the Quest for a Comprehensive Test Ban Treaty, Government Officials Since Eisenhower Have seen Comprehensive Nuclear Test Ban as Vital for Curbing Nuclear Proliferation, According to Declassified Documents,” The Nuclear Vault (August 2010), Documents 1–9. 353 Jerry Kahan, “Jerry Kahan (Bureau of Politico-Military Affairs) to Ambassador Paul Warnke, Arms Control and Disarmament Agency, 1 May 1978, enclosing letter from British Foreign Secretary Peter Jay to Secretary of State Cyrus Vance, with British Memo on ‘Comprehensive Test Ban,’ 26 April 1978 and State Department memorandum, ‘Nonproliferation Benefits of a CTB,’ n.d.,” State Department FOIA Release. 354 Ibid. 355 Richard L. Garwin, “The Future of Nuclear Weapons Without Testing,” Arms Control Today 27, no. 8 (1997): 11.

Vertical proliferation is an increase in the capabilities of the existing nuclear powers.356 It could be argued that early efforts to manage nuclear testing—the PTBT and the bilateral TTBT—aimed to manage vertical proliferation. Considering that, by the mid- 1990s, four of the five NWS had declared that they no longer needed to test their weapons, it is plausible to suggest that the CTBT was not designed to manage vertical proliferation. Also, from the mid-1980s onwards, both the US and former USSR began to steadily reduce both deployed and stockpiled weapons through bilateral agreements.

In Relation to the NPT

According to CSC theory, the foundation ideology of the CTBT should reinforce that of the original treaty, the NPT, if the regime is to remain strong. A proposed subsequent treaty that does not fortify the original foundation ideology would, in a strong regime, be discarded in favour of one that does.357 Where this does not occur, the treaty regime is likely to be weakened and unable to withstand change.358 Taking this into account, the foundation ideology for the CTBT that reinforces the NPT, is simply that nuclear weapons testing leads to proliferation and that proliferation of nuclear weapons leads to increased security dangers. Rose Gottemoeller maintains that all of the specific goals pursued in the non-proliferation arena, such as managing testing or fissile material production, have a role in halting proliferation to ultimately stop the arms race.359 In this way, a non-proliferation ideology is fundamentally linked to disarmament and the aspirations contained in Article VI of the NPT. A comprehensive ban on nuclear testing places significant barriers in the way of proliferation.360 It may not prevent nuclear weapon development by an aspirant state but without nuclear testing, their confidence in whether those weapons would actually work would be low.361

356 Eugene R. Wittkopf & Charles W. Kegley Jr., World Politics. (California: Wadsworth, 2005), 480. 357 Scott, The Political Interpretation of Multilateral Treaties, 116-117. 358 Ibid. 359 Former US Undersecretary of State for Arms Control and International Security for the US State Department, Current Deputy Secretary-General of NATO. 360 Rose Gottemoeller, “Remarks by Under Secretary of State Rose Gottemoeller, 2015 International Day Against Nuclear Tests, High Level Panel – Towards Zero: Resolving the Contradictions,” UNGA Permanent Mission of the Republic of Kazakhstan, (September 10, 2015): 4. 361 Ibid.

The preamble of the CTBT should provide clues to the basis on which state parties agreed to negotiate the treaty text. The relevant phrase of the preamble reads:

Recognizing that the cessation of all nuclear weapon test explosions and all other nuclear explosions, by constraining the development and qualitative improvement of nuclear weapons and ending the development of advanced new types of nuclear weapons, constitutes an effective measure of nuclear disarmament and non-proliferation in all its aspects 362

This passage is expansive in the sense that it refers to halting both vertical and horizontal proliferation by restricting qualitative improvement of new or existing nuclear weapons. The next relevant phrase of the preamble is similarly expansive in that it links cessation of testing to non-proliferation, disarmament and the maintenance of international peace and security. In doing so it seeks to satisfy a range of state party concerns and aspirations:

Affirming the purpose of attracting the adherence of all States to this Treaty and its objective to contribute effectively to the prevention of the proliferation of nuclear weapons in all its aspects, to the process of nuclear disarmament and therefore to the enhancement of international peace and security.363

The foundation ideology for the original treaty is that ‘further horizontal proliferation of nuclear weapons would increase security dangers’.364 Similarly, a foundation ideology for the subsequent treaty should, according to a CSC theory interpretive approach, reinforce this idea. The cessation of nuclear testing would, therefore, constitute an effective non-proliferation measure and thus, enhance international peace and security. Therefore, the foundation ideology of the CTBT mirrors the foundation ideology of the NPT and can be interpreted as stating: the cessation of nuclear weapons testing will enhance nuclear disarmament and non-proliferation objectives and thereby, enhance international peace and security. While it appears that consensus to the idea that nuclear testing leads to an increase in security threats, there are nonetheless disarmament-related principles embedded in the foundation ideology.

It may be somewhat surprising to interpret the underlying principle on which parties agreed to negotiate as more directly related to non-proliferation than to disarmament.

362 CTBT, Preamble, https://www.ctbto.org/fileadmin/content/treaty/treaty_text.pdf. 363 Ibid. 364 Scott, The Political Interpretation of Multilateral Treaties, 164.

After all, the CTBT is often lauded as the first of many steps in the work towards a world free of nuclear weapons.365 The inclusion of disarmament as a unifying concept in rhetoric about the test ban treaty is more akin to myth. It appears false that states negotiated the subsequent treaty based on agreement to an ideology that underpins a second-tier issue in the original treaty. In fact, it appears that the foundation ideology of the CTBT supports efforts to curb proliferation: to thwart aspiring nuclear weapon states ambitions; to prevent potential nuclear states from proving their capabilities via nuclear tests and to prevent a state from reaching the stage where it could declare its nuclear status. Ultimately, the only way to demonstrate nuclear weapons’ capabilities is to test them.

In practice, a comprehensive ban on testing prevents aspiring nuclear states from joining the ‘nuclear club’; it does not directly encourage the dismantlement or elimination of existing nuclear weapons. Given the foundation ideology relates to non-proliferation to a larger degree than to disarmament, it is relatively straightforward to see how the CTBT solves the problem of potential new nuclear states and how the foundation ideology of this subsequent treaty reinforces the original NPT.

The foundation ideology will portray the solution as applying equally and imposing equal benefits or costs on all parties. However, in practice, the CSC solution will favour one or more participants in some way. The original treaty is understood to provide security for all—when NWS were actually afforded advantages. What benefits will the CSC solution for the subsequent treaty provide? Thus far, its foundation ideology has been shown to promote non-proliferation over disarmament in relative terms and the CSC issue that gave rise to the CTBT was found to be to extend the original treaty. These elements of the issue–ideology–solution nexus provide a basis for asserting that the subsequent treaty does indeed integrate and harmonise with the original. On this basis, one might expect the CSC solution for the subsequent treaty to also favour those participants that derived imbalanced benefits in the original treaty.

365 2000 Review Conference ‘Thirteen Steps,’ NPT/CONF.2000/28 (Parts I and II): 14-15; 2010 Review Conference ‘64-point Action Plan,’ NPT/CONF.2010/50 (Vol. I): 20- 29.

CSC Solution

To interpret this CSC component, we seek the crux of what state parties agree to do to comply with the provisions of the treaty text. Therefore, the starting point for an interpretation of the CSC solution is the treaty text itself. According to CSC theory, the solution is most often located in the first four substantive articles and it outlines the action that states agree to take to address the issue at hand.366 Notably, the original NPT treaty text preamble required parties to ‘seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and to continue negotiations to this end’.367 The CTBT was mandated by the original treaty decades before the treaty text was finalised. The CSC solution, therefore, could not only impose a ban but it also needed to offer a means by which testing could be verified to attract the largest possible number of state parties.368 An unverifiable arms control agreement is barely worth the paper it is written on because state parties cannot trust that all states will comply.369 For the CTBT to be considered a viable and attractive option, it required a means by which to verify noncompliance. Therefore, the drafters sought to both proscribe and prescribe particular action so all nuclear weapons testing—or breaches of the ban—would be detected.

Under Article I, state parties agree not to carry out any nuclear weapon testing and to refrain from causing, encouraging or participating in any nuclear weapon test.370 This is the proscribing or prohibition element of the solution. It represents what states have agreed not to do. Article IV outlines the verification mechanisms that will ensure compliance with Article I. These include the establishment of an international monitoring system including an international data centre.371 The verification mechanisms will ensure that no nuclear test can go undetected and therefore, that no cheating occurs. The other three actions are consultation and clarification, on-site

366 Scott, The Political Interpretation of Multilateral Treaties, 16. 367 NPT, Preamble. 368 David Hafemeister, “The Comprehensive Test Ban Treaty: Effectively Verifiable,” Arms Control Today 38, no. 8 (2008): 7. 369 Richard N. Perle, “Good Guys, Bad Guys and Arms Control,” in A Future Arms Control Agenda: Proceedings of Nobel Symposium 118, 1999, SIPRI: OUP (2001): 48 370 CTBT, Article I (1) and (2). 371 Ibid., Article IV 1. (a).

inspections and confidence-building measures.372 In addition, Article II establishes a preparatory organisation, the CTBTO, to achieve the aims of the treaty, ensure its implementation and serve as a forum for members.373 This organisation works to ready all technical aspects so that the verification system can switch on once all 44 Annex II states ratify the treaty.

For the CTBT, the solution is that states will no longer physically test nuclear weapons nor assist others to do so. An international monitoring and data sharing system will be established to verify any and all physical nuclear weapons explosions. The CSC solution is supported by provisions that facilitate implementation. State parties to the CTBT consent to provide finance and collaborate on the creation of the monitoring system. They consent to cooperate with the CTBTO should on-site inspections or confidence-building measures be warranted. In essence, state parties consent to the notion of transparency via technology.

During the negotiation process, the idea of fostering transparency through data sharing was identified as vital to the subsequent treaty’s success. At a conceptual level, the age- old security dilemma that states face when negotiating an arms control agreement is how to be unequivocally certain that all other states will comply. Cheating or other forms of noncompliance must be minimised or effectively curbed to ensure that other states do not gain an unfair advantage by circumventing the rules of the regime. For this reason, transparency via an unequivocal verification regime remains a fundamental prerequisite. Technological development in the fields of seismic, hydroacoustic, infrasound and radionuclide monitoring combined with advances in communication facilitated great progress for states because noncompliance can no longer go undetected.374

Technological advances have been central to the feasibility of the CTBT for two distinct reasons. First, they offer a guarantee of the efficacy of the verification system to NWS and NNWS alike. For example, through technological advancement states are reassured

372 Ibid., Article IV 1. (b) (c) (d). 373 CTBTO Establishment Purpose and Activities, https://www.ctbto.org/the-organization/ctbto- preparatory-commission/establishment-purpose-and-activities/. 374 Dean Knox, “The Comprehensive Test Ban Treaty: Foundations, Context and Outlook,” in Handbook of Nuclear Proliferation, ed. Harsh V. Pant (Hoboken: Taylor and Francis, 2012), 266– 269.

and the North Korean tests continue to demonstrate the functionality and worth of the monitoring and data sharing system.375 The second contribution of technological progress to the treaty’s progress relates to the capability of NWS to undertake virtual nuclear testing in place of physical testing. Through the use of technology, all five NWS have developed virtual or subcritical testing capabilities to ensure nuclear weapons readiness and operability.376 In effect, NWS have circumvented the need for physical testing. The virtual testing aspect is rarely discussed in the literature though it has direct bearing; it explains why NWS were able to commit to a ban. If they still required physical testing and lacked a secure alternative method to confirm the operability of their arsenals, would a ban on testing be feasible?

In Relation to the NPT

Would NWS agree to a foundation ideology that equates nuclear weapons testing with an increase in security dangers if it had no other option but to physically test? By 1995, after 40 years’ nuclear weapons development, the NWS were in a position to finally agree to cease physical testing. France lagged somewhat behind and needed until 1996 to confirm that virtual testing capabilities were calibrated.377 US President Clinton initiated the Stockpile Stewardship Program to maintain confidence in the US arsenal. In light of the myth that the CTBT is a first step towards disarmament, the question that remains is this: Why, in a comprehensive agreement to ban testing, are all forms of testing not prohibited? Why was non-explosive testing not considered on par with physical testing? Does the lack of both environmental and human damage resulting from virtual testing render it acceptable? Is virtual testing acceptable because there is no actual explosion and therefore, no radiation? Or is it perhaps that to ban all forms of testing would contravene the legitimation goal for NWS, that is, to be able to test oneself but for no-one else to be allowed to do so. Would a total ban on all forms of testing lead to the eventual inoperability of nuclear weapons? More importantly, how could a ban on virtual testing be verified?

375 CTBTO, “Comparison of Seismic Signals (to scale) of all six Declared DPRK Nuclear Tests,” https://www.ctbto.org/the-treaty/developments-after-1996/2017-sept-dprk/ 376 Arundhati Ghose, “Maintaining the Moratorium—a De Facto CTBT,” Disarmament Forum UNIDIR, 2 (2006): 25. 377 Tariq Rauf, “French Nuclear Testing: A Fool’s Errand,” The Nonproliferation Review (Fall 1995): 52

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The CSC solution is a response to the CSC issue that prevented unchecked pursuit of the legitimation goal. The ability for NWS to retain nuclear status and maintain the original treaty is satisfied by the CSC solution that has been interpreted—that states will no longer physically test and will establish a monitoring system. CSC theory states that the CSC solution will appear to treat all states equally but not do so in practice.378 By allowing virtual testing, NWS can continue to maintain differential status via the continued operability of their nuclear arsenals while NNWS and outlier states cannot demonstrate, and thereby attain, nuclear weapons capability. From this, it is evident that the CSC solution of the CTBT upholds the foundation ideologies of both the CTBT and the NPT by preventing horizontal proliferation first and by perpetuating the have/have- not divide established by the original treaty. In this way, the subsequent treaty appears to integrate and harmonise with the original by reinforcing the power structure it established and by strengthening the issue–ideology–solution nexus it contains.

CSC Myth

The subsequent test ban treaty has been found to preserve the division between NWS and NNWS and also to prevent horizontal proliferation; this has been demonstrated via interpretation of the CSC issue, legitimation goal, foundation ideology and solution. One might then ask: In what way does it promote disarmament? How does the CTBT advance work towards general and complete disarmament? In what way does it constitute compliance with Article VI of the NPT? And, why has it been touted as the first step towards disarmament since the entry into force of the original treaty in 1970?

It appears that the CTBT can work to stop armament but not necessarily ensure disarmament. CSC theory dictates that there will be a myth surrounding a treaty; an idea that is communicated in everyday language that has no foundation in fact. This myth will act, by repeated iteration, to reinforce the foundation ideology.379 For the original treaty, the CSC myth was that the NPT would act as a safeguard against nuclear war. For this subsequent treaty the CSC myth is that the CTBT is a first step towards disarmament.

378 Scott, The Political Interpretation of Multilateral Treaties, 114. 379 Ibid., 16.

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The literature that an interested layperson might read about the test ban treaty will reinforce the CSC myth. This is the way the CTBT could be marketed to the general public. Rhetoric about the test ban treaty centres on how it contributes to the disarmament cause, how it will lead to disarmament and its nature as a first step on the long path to a world free of nuclear weapons.380

A feature of the CSC myth is that it often remains unquestioned. It is virtually impossible to find literature that challenges the notion that the CTBT will lead to disarmament or that challenges it as the first stage in promoting an end to the arms race. On the contrary, the CSC myth serves to perpetuate the notion that a test ban treaty is indeed a first step towards disarmament and that it is a form of compliance with Article VI of the NPT, which reads:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.381

Article VI is deliberately vague and open-ended as it refers to a process of working towards complete and general disarmament. In 1996, an advisory opinion by the International Court of Justice (ICJ) was sought on the legality of the use of nuclear weapons.382 Judges clarified that in relation to Article VI, states are obliged to conclude an agreement and not simply work towards conclusion.383 It is arguably not a coincidence that the ICJ opinion was sought soon after the NPT was indefinitely extended. NNWS, in all likelihood, pursued the gravitas of an ICJ ruling as a means of promoting actual disarmament-related action by NWS.

The wording of the text of Article VI is more flexible than Articles I and II, which unequivocally state the requirement that nuclear weapons will not be transferred from

380 See for example: International Campaign to Abolish Nuclear Weapons, Global Zero, Ploughshares Fund, Soka Gakkai, Campaign for Nuclear Disarmament 381 NPT, Article VI. 382 For a comprehensive case for the illegality of nuclear weapons in relation to the ICJ advisory opinion and US policy see: Charles J. Jr. Moxley, “Nuclear Weapons and International Law in the post- Cold War World,” (Maryland: Austin & Winfield, 2000): xxv -xxvii. 383 See: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports, 1996, Decision F, 267, http://www.icj-cij.org/docket/files/95/7495.pdf. The International Court of Justice (ICJ) Advisory Opinion of 1996 on the Legality of Nuclear Weapons directed that states must bring to conclusion negotiations on nuclear disarmament, ‘negotiations cannot be an end in itself’.

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NWS to NNWS. Miller concludes that the vague terminology was intentionally evasive and ambiguous in deference to the ‘intractable realities of the era in which it was written.’384 Perkovich suggests that Article VI was deliberately designed to not restrict parties when both the security environment and technological advances were unpredictable.385 In this context, in light of the disarmament obligation being less strict and because it is expressed in terms of commitment to a process, the failure of the CTBT to enter into force should be considered part of the overall disarmament process, and relative to the existing power structure and political objectives of state parties. This subsequent treaty, while not in force, still serves to augment the original treaty and in doing so, promotes non-proliferation. Therefore, its failure to enter into force does not diminish the treaty’s capacity to integrate and harmonise with the original treaty.

An ‘in-force’ test ban treaty has been touted as a first step towards disarmament and is regarded as a means of compliance with the NPT and in particular, with Article VI.386 This is based on logic that says that if NWS were prevented from testing their weapons, then presumably they would be prevented from modernising or expanding their arsenals. For states seeking to gain nuclear weapons, a prohibition on testing would block their acquisition pathway. In this way, a ban on nuclear weapons testing limits proliferation and advances disarmament simultaneously.

The CTBT has been regarded as a first step towards disarmament in each final outcome documents from each quinquennial review conference beginning with the first in 1975. After state parties to the NPT decided to indefinitely extend the non-proliferation treaty in 1995 and after the US Senate rejected ratification of the test ban treaty in 1999, a sense of urgency and necessity imbued the review conference of 2000. This led to a negotiated consensus final document. The parties agreed to:

384 Steven E. Miller, “Proliferation, Disarmament and the Future of the Non-Proliferation Treaty,” in Sverre Lodgaard & Bremer Maerli Nuclear Proliferation and International Security (London: Routledge, 2007), 52. 385 George Perkovich, “The Iran Deal’s Building Blocks of A Better Nuclear Order,” Carnegie Endowment for International Peace (June 9, 2016): 1-2. http://carnegieendowment.org/2016/06/09/iran-deal-s-building-blocks-of-better-nuclear-order-pub- 63780 386 Pietrobon, “Nuclear Powers’ Disarmament Obligation,” 169; Asada, “CTBT: Legal Questions,” 87; Garwin, “The Future of Nuclear Weapons without Nuclear Testing,” 11; Graham Jr. “Comprehensive Nuclear Test Ban Treaty,” 3; David S. Jonas, “The Comprehensive Nuclear Test Ban Treaty: Current Legal Status in the United States and the Implications of a Nuclear Test Explosion,” N.Y.U. Journal of International Law and Politics 39 (2006-07): 1014.

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An unequivocal undertaking by the nuclear weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament to which all States are committed under Article VI.387

To this end, state parties in 2010 negotiated 64 practical steps, the first of which was the entry into force of the CTBT without delay. Until such time, the continuation of a moratorium on nuclear testing was the second step. Cessation of nuclear weapons testing certainly aids disarmament objectives but as we have noted through this interpretive process, the CTBT promotes and strengthens the original treaty by primarily preventing horizontal proliferation.

In Relation to the NPT

Since the NPT entered into force in 1970, a treaty to manage the issue of nuclear testing has been sought as a next step towards disarmament. This is based on the logic that if NWS were prevented from testing their weapons, then presumably they would be prevented from modernising or expanding their arsenals. For states seeking to acquire nuclear weapons, a prohibition on testing would block the acquisition pathway. In this way, a ban on nuclear weapons testing limits proliferation and advances disarmament simultaneously. Further examination of the CSC myth suggests that instead of complying with NPT Article VI obligations to negotiate a multilateral disarmament treaty, the CTBT could be considered a contravention of it.

By allowing and not proscribing virtual testing, NWS could be understood as having surreptitiously found a way to maintain and improve, rather than disarm and decommission, their arsenals while establishing a nuclear weapon testing legal regime. The monitoring system could be viewed as a distraction from the fact that NWS weapons will not become obsolete as a result of a ban on physical testing. On the contrary, such a ban serves to cloak military modernisation plans and permit pursuit of the legitimation goal by allowing vertical proliferation to go undetected. From this, we can see that the CTBT quite cleverly strengthens the power structure of the NPT while appearing to support the objectives of NNWS. Therefore, the subsequent treaty integrates and harmonises with the original treaty primarily because it strengthens the power structure established by the original.

387 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, ‘Sixth of Thirteen Steps,’ NPT/CONF.2000/28 (Parts I and II): 14-15

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Conclusion

This chapter sought to show that the CTBT cannot be analysed in isolation, nor without an appreciation of how it emerged from the NPT. Table 2 provides a side-by side reference of the CSC components for the original NPT and subsequent CTBT. In the previous chapter, the ideology of non-dissemination triumphed over one of elimination to become embedded in the original multilateral treaty managing nuclear arms control. The NPT became the cornerstone treaty of this legal regime with non-proliferation as the dominant foundation ideology. The subsequent test ban treaty, although sought as a first step towards complete and general disarmament, was found to also be underpinned by a foundation ideology of non-proliferation first and disarmament second. In this way, the subsequent treaty promotes both non-proliferation and disarmament principles.

The CTBT is widely regarded as an example of compliance with Article VI of the NPT.388 This commonly held view reinforces a main aim of the chapter: to show in CSC terms how the CTBT is inextricably linked to the NPT. The theory application process enabled a detailed appraisal of this link. Interpretation of the CSC issue that gave rise to the treaty demonstrated in procedural terms how the CTBT emerged from the implementation and review process of the original treaty. The promise to conclude a CTBT treaty text within the year was made at the NPT indefinite extension review conference of 1995.389 NWS made this commitment to NNWS in exchange for their vote to extend the NPT indefinitely. This ‘minor bargain’ provided the political context that led to the negotiation of the CTBT treaty text. It should also be recalled that a treaty to ban nuclear testing was called for in the preamble of the original NPT treaty, which

388 NPT, Article VI reads: ‘Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control’ (http://disarmament.un.org/treaties/t/npt/text). See also: “Statement by Representatives of Non-Governmental Organizations on the Comprehensive Test Ban Treaty (CTBT) to the Preparatory Meeting for the 2010 Review Conference for the Treaty on the Non-Proliferation of Nuclear Weapons,” May 5, 2009, which says ‘CTBT ratification has long been considered essential to the fulfilment of Article VI of the NPT’. Endorsed by over 25 individuals and organizations including Daryl Kimball (Arms Control Association), Rebecca Johnson (Acronym), David Krieger (Nuclear Age Peace Foundation) etc. 389 1995 Review and Extension Conference of the Parties to the Non-Proliferation of Nuclear Weapons Final Document Part 1, Organization and Work of the Conference, NPT/CONF.1995/32.

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opened for signature in 1968. In this way the subsequent treaty was mandated by the original and therefore, the two are inextricably linked.390

To answer the question of integration and harmonisation between the original and subsequent treaties, this chapter provided an appraisal of what CSC theory states about subsequent treaties. In a strong and effective regime, the foundation ideology of the subsequent treaty must reinforce—and not detract from—that of the original treaty and, the logical issue–ideology–solution nexus must be maintained and tightened by the subsequent treaty. The CSC solution should follow logically from an application of the CSC myth to the CSC issue and will, thus, function to uphold the foundation ideology.391 These are characteristics of a strong and durable regime that can withstand change. The tenets of CSC theory on the interaction and usage of ideational elements served to guide and hone analysis of CSC components and, in particular, comparison between equivalent CSC components of the CTBT and NPT. The CSC theory application process demonstrated that the foundation ideology of the CTBT does in fact reinforce that of the original treaty and the issue–ideology–solution nexus of the original treaty is maintained in the subsequent treaty. Both findings contribute to the conclusion that the CTBT does indeed harmonise with the NPT. The original and subsequent treaties are politically harmonious in that the power structure established by the original is preserved and strengthened by the latter.

According to Scott, at the core of a legal regime is the nexus between the CSC issue, foundation ideology and CSC solution. In the nuclear arms control regime, we see the CTBT fail to enter into force. We can identify an attempt to tighten the issue–ideology– solution nexus. For the nuclear arms control regime, developments are generally initiated by the less powerful states in an attempt to fill gaps left by the original agreement. The stability dynamic becomes operational through these attempts. The CTBT was negotiated as a direct attempt to satisfy the preference of NNWS who had become dissatisfied with NWS compliance with Article VI of the NPT. In this way, the CTBT was promoted as a means of compliance with the obligation to negotiate a

390 The NPT mandates negotiation of the following subsequent treaties: A Test Ban Treaty (Preamble), Bilateral Safeguards Agreements (Art. III (4)), Bilateral Agreements on Technology and Material sharing for Peaceful Use of Nuclear Weapons (Art. V), Regional Agreements such as the Nuclear Weapons Free Zones Agreements (Art. VII) and a Comprehensive Treaty on Complete and General Disarmament (Art. VI). 391 Scott, The Political Interpretation of Multilateral Treaties, 115–116.

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disarmament treaty and as a step towards cessation of the arms race. The fact that the treaty is not yet in force leads to the conclusion that while the original and subsequent treaties are politically harmonised, they cannot be considered legally integrated.

The anomaly in this case study is the entry into force provision; for all intents and purposes, the CTBT constrains physical nuclear weapons testing and has established an effective monitoring system. This subsequent treaty largely operates as though it is in force. The verification system is functioning and the beneficial effect of transparency through technology is visible. No nuclear test on earth will go undetected.392 NWS will know if a NNWS conducts a test—but the reverse is not true. The treaty permits non- explosive testing (by NWS) and thus, the CTBT reinforces the existing power structure.

CSC theory suggests that in a strong regime with an operational stability dynamic— such as the NPT—the CTBT should have entered into force. The failure of the CTBT to enter into force is due to inclusion of a ‘catch-all’ entry into force mechanism that was inserted during the treaty text negotiation phase at the CD. Thomas Graham Jr. reminds us that had there been such a strict entry into force mechanism for the NPT, it too would not be in force.393 The requirement that all 44 Annex II states ratify the CTBT was included primarily to ensure that India be party to the treaty and not singled out.394

Apart from the failure of the CTBT to enter into force, its integration and harmonisation with the NPT can still be assessed. If we consider whether it strengthens or weakens the original treaty, we find that this subsequent treaty does not detract from the original; it both sustains and promotes the existing power structure. The CTBT reinforces the principle of differentiation that was embedded in the foundation ideology of the original treaty. By not challenging the power structure established by the NPT, it also promotes non-proliferation over disarmament. The influence of the power structure established by the original treaty is undeniably seminal. An underlying goal for NWS was to maintain the legitimacy of the divide between themselves and NNWS established by the NPT. Both India and Pakistan directly oppose this principle and thus, they refuse to perpetuate the divide by becoming state parties to the CTBT. US Senate rejection of the

392 CTBTO, “Overview of the Verification Regime,” https://www.ctbto.org/verification- regime/background/overview-of-the-verification-regime/ Accessed June 1, 2018. 393 Graham, “Comprehensive Nuclear Test Ban Treaty,” 4. 394 Ibid.

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CTBT in 1999 also prevents the CTBT’s entry into force with China claiming it will likely only ratify after the US does.395

The relationship between political and legal objectives in this case study is pronounced. On one level, the CTBT serves to codify the moratoria against testing issued by NWS and, to a lesser extent, acts as a first step towards disarmament—as was more commonly understood. However, this subsequent treaty primarily sought to constrain and prevent horizontal proliferation. The CTBT principally serves to prevent any aspirant state from demonstrating its nuclear capability, thus, preserving the power structure and the pre-eminence of the original treaty. NWS quietly retain the right to virtually test and therefore, modernise, their arsenals.

In the next chapter, CSC theory will be applied to another subsequent disarmament treaty to better understand how it might integrate and harmonise with the original treaty. The next case study chapter will examine the issue of fissile material production and storage, another vital aspect of the nuclear pathway requiring management to prevent additional nuclear weapons-capable states from emerging. Just like nuclear weapons testing, prevention of the production and storage of the material needed to operationalise a nuclear weapon is considered a necessary next step towards disarmament. Using CSC theory let us now consider the extent to which it fulfils disarmament objectives and to what degree it can integrate and harmonise with the original treaty.

Table 2. Cognitive Structures of Cooperation (CSC) Components for the Comprehensive Test Ban Treaty (CTBT)

NPT CSC Term Explanation396 CTBT Component Component

Community of Those participants that US, USSR State parties to the interest express an interest in (former), UK, NPT with NWS as participating in resolution France, China, ‘higher-stake

395 See: Jayson Roehl, “The United States Senate and the Politics of Ratifying the Comprehensive Nuclear Test-Ban-Treaty,” Comparative Strategy 28, no.4 (Sept. 2009): 303; John Kyl, Policy Essay “Maintaining ‘Peace Through Strength’: A Rejection of the Comprehensive Test Ban Treaty,” Harvard Journal on Legislation 37 (2000) 326-328. 396 Scott, The Political Interpretation of Multilateral Treaties, 13–17.

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NPT CSC Term Explanation396 CTBT Component Component

of the issue under Ireland, state participants’. consideration. party members of UNGA First Committee.

CSC issue The issue with which the Who will How can the NPT be treaty was established to manage the indefinitely extended, deal; the issue to which the issue of nuclear given dissatisfaction treaty is a response. weapons and of NNWS with NWS how will this be compliance with done? Article VI?

Legitimation goal The self-interested, All states want NWS want to be able competitive goal that to enhance to test themselves but negotiating states had in national for no-one else to be common that gave rise to security by allowed to do so. the perceived need for a having better regime. The legitimation weapons than goal provides restraint to their potential unchecked pursuit of state adversaries. policy.

Foundation A principle or small set of Further The cessation of ideology interrelated principles horizontal nuclear weapons alluded to in the preamble proliferation of testing will enhance that underpins and unifies nuclear nuclear disarmament the agreed cognitive weapons would and non-proliferation structure by which to increase objectives and manage the issue of mutual security thereby, enhance concern. dangers. international peace and security.

CSC solution The nub of what the states States with States will no longer parties are going to do to nuclear physically test nuclear address the issue that has weapons must weapons nor assist come to threaten their not help others others to do so. An

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NPT CSC Term Explanation396 CTBT Component Component

pursuit of the legitimation acquire them; international goal. Usually succinctly those without monitoring and data stated within the first four them must not sharing system will be substantive provisions of acquire them. established to verify the treaty. any and all physical nuclear weapons explosions.

CSC myth Reinforces the foundation The NPT is The CTBT is a first ideology and is accepted as safeguard step towards a basis for action by the against nuclear disarmament. CSC members (though war. rarely articulated).

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CHAPTER FOUR. A TREATY TO MANAGE THE PRODUCTION AND STORAGE OF FISSILE MATERIAL

In this examination of nuclear arms control treaties and the integration into the regime of treaties subsequent to the NPT, we have to this point examined the NPT as the foundational treaty, and the subsequent CTBT. Scott’s CSC theory states that the foundation ideology of a subsequent treaty must augment and not detract from that of the original treaty if the regime is to remain cohesive and strong. This is referred to as the `stability dynamic’. In the CTBT case study, the linkage between the original and subsequent treaties was demonstrated to identify the operation of a stability dynamic. This ensured that the CTBT could indeed integrate and harmonise with the NPT.

Introduction

This chapter analyses the link between the NPT and the French Draft for a Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices (2015). It is worth noting that there is not yet an in-force treaty— only drafts. Fissile material is the fuel that powers nuclear weapons. It occurs in two forms: as highly enriched uranium or as plutonium. When nuclear energy for peaceful purposes is required, uranium need only be enriched to about 3.25%; when a state seeks to create weapons-grade or uranium, it needs to be enriched to over 20%.397 This treaty aims to limit states from producing weapons-grade fissile material.

Through application of CSC theory, we shall work to understand how negotiations towards a fissile material treaty advanced up to the 2015 draft in respect of the ideologies underpinning it, the goals of the state parties and the solutions being advanced. This case study is unique in this project because while calls for a treaty are sustained and strong, a treaty to manage fissile material production and storage has only advanced through the CD in three separate drafts, prepared respectively by the US

397 Fissile materials are defined in more specific scientific terms, see: RCW, “Fissile material Cut-off Treaty,” (2017), http://www.reachingcriticalwill.org/resources/fact-sheets/critical-issues/4737- fissile-material-cut-off-treaty; IAEA, “Management of High Enriched Uranium for Peaceful Purposes: Status and Trends” (2005), http://www- pub.iaea.org/MTCD/publications/PDF/te_1452_web.pdf.

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(2006), the IPFM (2009) and France (2015), respectively.398 The CSC application process will accommodate this. As the most recent of these three, the French draft text has been selected as the focus for CSC theory application; however, interpretation of certain CSC components also requires some reference to earlier draft texts. One of the key issues that a CSC analysis may shed light on is why it has proven impossible to incorporate this treaty into the regime when the issue would seem to be such an important one.

CSC Issue

The issues of nuclear testing and fissile material production have been on the nuclear arms control agenda for over 50 years. Management of fissile material production is integral to any effort to curb nuclear proliferation. While both production and storage of fissile materials remains unregulated, the potential for these materials to be utilised by a NNWS or an outlier state remains high. Quite simply, fissile material is the fuel that powers a nuclear weapon; without it, a state cannot successfully launch a nuclear weapon.

An international agreement between states to prohibit the production of fissile materials for nuclear weapons or other explosive devices was sought in earnest in 1993 but stalled by 1995 and has remained deadlocked in the pre-negotiation phase ever since. If successfully implemented, the treaty would codify the moratorium on fissile material production already in place and curtail development of new nuclear devices by capping production of the very fuel that makes a nuclear weapon operational.399 An agreement

398 “United States of America Working Paper, Draft Treaty on the Cessation of Production of Fissile Material for Use in Nuclear Weapons or Other Nuclear Explosive Devices,” CD/1777, May 19, 2006; “Letter dated 16 September 2009 from the Permanent Representatives of Canada, Japan and the Netherlands to the Conference on Disarmament Addressed to the Secretary-General of the Conference Transmitting the Text of the ‘Draft for Discussion Prepared by the International Panel on Fissile Materials: A Treaty Banning the Production of Fissile Materials for Nuclear Weapons or Other Nuclear Explosive Devices, with Article-by-Article Explanations’ Dated 2 September 2009,” CD/1878, (Dec. 15, 2009); “Letter dated 9 April 2015 from the Permanent Representative of France to the Conference on Disarmament addressed to the Acting Secretary-General of the Conference transmitting a draft Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices prepared by the Government of France, Draft Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices,” CD/2020, (April 13, 2015) Note: the Greenpeace draft was not considered by the CD. 399 Fissile Material Production End Dates for Highly Enriched Uranium (HEU) and Weapons-Grade Plutonium (WGP) respectively: US 1992, 1987; Russia 1987–1988, 1994; UK 1963, 1989; France

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to ban the production of fissile material obviously fulfils non-proliferation aims but could also be considered a disarmament measure as it makes finite the possibility of fuelling, and therefore operating, nuclear arsenals.

In Relation to the NPT

By legitimating the arsenals of five NWS, the NPT also legitimated the production and storage of fissile material by those five states. An issue that has arisen is how best to curtail and prevent the production and storage of fissile material by any other state; NNWS and outlier states should not possess fissile material and yet they do. A seminal aim of the NWS is to stop these states from continuing to produce weapons-grade material and to bring them into the NPT regime via a treaty on fissile material. Preservation of the NPT as the cornerstone treaty in the legal regime and hence the differentiation between nuclear haves and have-nots is paramount for the regime.

To identify the CSC issue, we must understand what gave rise to the French draft— what efforts and initiatives preceded it. UNGA resolutions 808 (1954) and 1148 (1957), which predated the NPT, represent the earliest calls for a treaty to convert existing fissile material stocks to peaceful use.400 The negotiation of a multilateral instrument to manage the issue of fissile material production was sought as a first step by US President Eisenhower as early as 1960 and has been considered a necessary next step (along with a ban on nuclear testing) for the non-proliferation regime since entry into force in 1970.401

1996, 1992. China’s information is secret though it is widely believed to have ceased production in 1987–89, 1990. Data from Arms Control Association, “Fissile Material Cut-off treaty (FMCT) at a Glance,” http://www.armscontrol.org/factsheets/fmct. 400 UNGA Res 808 (IX), Regulation, Limitation and Balanced Reduction of All Armed Forces and All Armaments: Report of the Disarmament Commission; Conclusion of an international convention (treaty) on the Reduction of Armaments and the Prohibition of Atomic, Hydrogen and Other Weapons of Mass Destruction, November 4, 1954, https://documents- ddsny.un.org/doc/RESOLUTION/GEN/NR0/095/43/IMG/NR009543.pdf?OpenElement; UNGA Res 1148 (XII), Regulation, Limitation and Balanced Reduction of All Armed Forces and All Armaments; Conclusion of an international convention (treaty) on the Reduction of Armaments and the Prohibition of Atomic, Hydrogen and Other Weapons of Mass Destruction, November 14, 1957, https://documents-ddsny.un.org/doc/RESOLUTION/GEN/NR0/119/31/IMG/NR011931.pdf?OpenElement. 401 Dwight D. Eisenhower: ‘We have always said it is not technically feasible to ban the bomb now but we have always urged the cutoff as a first step’, cited in “We can’t go on the way we are: US proposals for a Fissile Material Cutoff and Disarmament Diplomacy during the 1950s and 60s,” The Nuclear Vault, posted June 16, 2010, http://www.gwu.edu/~nsarchiv/nukevault/ebb321/index.htm.

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During the Cold War—an era of massive nuclear arms accumulation—little, if any, progress could be made. However, from 1988 onwards, four of the five NWS (US, UK, Russia and France) formally issued moratoria on the production of fissile material, though China’s halt on production remains informal.402 As of 2018, India, Pakistan, Israel and North Korea (are believed to) continue to produce fissile material along with Germany, Japan, Argentina, and Brazil that operate uranium enrichment facilities.403 The Joint Comprehensive Plan of Action agreement between Iran, the NWS, Germany and the EU limited fissile material production in Iranian facilities to a level commensurate with peaceful use only.404

A treaty on fissile material cannot compel states to dismantle their nuclear weapons and actually disarm. Rather, as is the case for the CTBT, both treaties seek to block the nuclear pathway and prevent a state from acquiring nuclear weapons. The test ban treaty prevents nuclear weapons testing and the fissile material treaty prevents the production of the fuel needed to operate a nuclear weapon. Though touted as a concrete step towards disarmament, the CTBT has been shown to succeed only by augmenting the differentiation principle (the divide between nuclear haves and have-nots) established in the original treaty. This would make it more of a non-proliferation measure and is likely to be the case for the fissile material treaty as well.

When touted as a disarmament measure, the fissile material treaty is one part of the building block approach to complete and general disarmament. In this way, it essentially addresses the sub-issue of disarmament embedded in the original treaty.405 Successful conclusion of a treaty to manage fissile material production and storage would constitute compliance with Article VI of the NPT because it would contribute to ending the arms race and generally advance disarmament. This remains a considerable way off. State parties have thus far been unable to reach the substantive negotiation phase and are stalled in ‘rules of procedure’ and ‘program of work’ issues in the forum designated to negotiate the text, the CD. The workings of this negotiating forum will be

402 Arms Control Association, FMCT At-A-Glance. 403 International Panel on Fissile Materials, Fissile Material Stocks, http://fissilematerials.org/ 404 Joint Comprehensive Plan of Action, Vienna, July 14, 2015, http://eeas.europa.eu/statements- eeas/docs/iran_agreement/iran_joint-comprehensive-plan-of-action_en.pdf.

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provided in more detail in the Community of Interest section. State parties have not yet been able to reach the table as a collective to begin the important task of actual treaty text negotiations.

Interim Measures

While progress towards the conclusion of a treaty on fissile material has stalled, other measures are in place to ensure the safety and security of nuclear material. These include: safeguard agreements between NPT state parties and the IAEA; the Convention on the Physical Protection of Nuclear Material (CPPNM),406 including the recent amendment that expanded the scope to include nuclear facilities;407 the trilateral initiative (1996–2002) between the US, Russia and the IAEA that resulted in the development of verification systems that would not diminish sensitive information;408 and the two ‘guidelines’, akin to treaties, on nuclear transfers and nuclear-related equipment transfers implemented by the Nuclear Suppliers Group to facilitate nuclear trade for peaceful purpose.409 All of the aforementioned instruments address nuclear materials safety but none seeks to limit or control the production of fissile material.410 As with all international law instruments the measures, that are in place are (at least in theory) agreed to by state consent. As the only legal holders of fissile material according to NPT, NWS are the state parties mandated to negotiate safety and security mechanisms.

406 Convention on the Physical Protection of Nuclear Material, March 3, 1980, 1456 UNTS 124, https://www.iaea.org/sites/default/files/infcirc274.pdf. 407 Amendment to the Convention on the Physical Protection of Nuclear Material, July 8, 2005, https://ola.iaea.org/ola/treaties/documents/FullText.pdf. 408 Vienna Centre for Disarmament and Non-Proliferation, “Results and Lessons from the Trilateral Initiative on the IAEA Verification of Weapon Origin Fissile Material,” February 25, 2014, http://vcdnp.org/140225_trilateral_initiative_iaea_verification_report.htm. 409 Nuclear Suppliers Group, “Guidelines for Nuclear Transfers” and “Guidelines for Transfers of Nuclear-related Dual-Use Equipment, Materials, Software and Related Technology,” INFCIRC/254, Parts 1 and 2, http://www.nuclearsuppliersgroup.org/en/guidelines. 410 Tariq Rauf, “A Cut-Off of Production of Weapon-Usable Fissionable Material,” in Handbook of Nuclear Proliferation, Harsh V. Pant (Hoboken: Taylor and Francis): 278.

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Long-term Efforts to Manage the CSC Issue

A long history of proposals and calls for proposals punctuate the development of nuclear arms control treaties. Progress was decidedly slow in reaching the open for signature stage for the NPT (1945–1968) and the CTBT (1954–1996).411 The pre- negotiation phase of the NPT ended in 1965 and the treaty was then negotiated in three years through the ENDC. The CTBT pre-negotiation phase, which included negotiation of the PTBT and moratoria on testing, ended in 1995 and the CTBT was then negotiated in a year as promised by NWS at the 1995 review conference.

Nuclear arms control initiatives that seek to ban nuclear weapons testing or the production of fissile material are decades-long processes. Each can be examined temporally and delineated into stages. It is possible to identify fits and bursts, times when momentum hastened and equally, periods when progress stalled. For the treaty on fissile material, it was the General Assembly resolution of 1993 calling for the initiation of negotiations in the CD that generated five years of progress.412 In that time, Canada’s Special Ambassador Gerald Shannon’s report, known as the Shannon Mandate, was adopted by the CD (1995) 413 and was operationalised via an ad hoc committee of the CD in 1998.414 The committee had a mandate to negotiate a ‘non-discriminatory, multilateral and international verifiable treaty banning the production of fissile material for nuclear weapons and other explosive devices’.415 The Shannon Mandate made clear that nothing was ‘off the negotiating table’; the ‘Ad-Hoc Committee does not preclude any delegation from raising for consideration,’ both past and future fissile material stocks and the management of both could be considered.416

411 Using the Baruch and Gromyko plans as starting point for a treaty to manage nuclear arms and President Nehru’s call for a standstill agreement in the wake of the Castle Bravo nuclear test. The end dates are the years the NPT and CTBT opened for signature respectively. 412 UNGA Res 48/75 General and Complete Disarmament, L. Prohibition of the Production of Fissile Material for Nuclear Weapons and Other Nuclear Explosive Devices, 81st Plenary Meeting, (Dec. 16, 1993): 15. 413 “Report of Ambassador Gerald E. Shannon of Canada on Consultations on the Most Appropriate Arrangement to Negotiate a Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices,” CD/1299, March 24, 1995. 414 “Working Paper with regard to an Ad-Hoc Committee on a Fissile Material Cut-Off Treaty,” CD/1485, January 21, 1998. 415 Shannon Report: 1-2. 416 Ibid. 2.

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The indefinite extension NPT review conference of 1995 also provided a stimulus by calling for immediate commencement and early conclusion of negotiations for a fissile material treaty.417 The deadlock re-emerged in 1999 with the linkage of outer space negotiations to the fissile material treaty. The contentious issue of what should or should not be included on the CD program of work has been in dispute ever since.418 There has been no shortage of calls for negotiations to recommence at each NPT review conference and at annual meetings of the UNGA First Committee on Disarmament.

In 2004, the US declared that the Shannon Mandate’s requirement for an international verification mechanism was unachievable and that the US would no longer support this part of the agreement. Two years later, in 2006, the US submitted a draft treaty without verification mechanisms of any kind.419 In response, some three years later, a draft treaty inclusive of verification mechanisms was ‘on the table’ at the General Assembly, this time provided by the IPFM.420 Since 2006, China, India and Pakistan have continued to oppose the CD proposed program of work. This has meant that year after year, the work of the CD and hence the negotiation process towards a fissile material treaty, cannot proceed. The establishment of the Group of Governmental Experts (GGE) in 2012 can be viewed as an attempt to foster progress in an otherwise paralysed process. The precise job this ad hoc body is tasked with is:

To make recommendations on possible aspects that could contribute to but not negotiate a treaty banning the production of fissile material for nuclear weapons … on the basis of document CD/1299 (Shannon Mandate).421

The GGE is asked to pretend to draft a treaty; this is a shadow treatymaking process. The NWC, which will be interpreted in Chapter Five, was drafted in the same way. NNWS drafted a ‘pretend’ comprehensive treaty to eliminate nuclear weapons to prove

417 1995 Review and Extension Conference of the Parties to the Non-Proliferation of Nuclear Weapons Final Document Part 1, Organization and Work of the Conference, NPT/CONF.1995/32, 4(b) 418 Paul Meyer, “Is There any Fizz Left in the Fissban? Prospects for a Fissile Material Cutoff Treaty,” Arms Control Today, (December 2007): 19 419 US Draft Treaty, CD/1777, 420 IPFM Draft Treaty, CD/1878. 421 UNGA Res, 67/53, “Treaty Banning the Production of Fissile Material for Nuclear Weapons or other Nuclear Explosive Devices,” Sixty seventh session, A/RES/67/53 (December 3, 2012): paragraph 3. Secretary-General to establish the Group of Governmental Experts (GGE): 166 Yes; 1 No (Pakistan); 20 Abstain (including China, Israel, Iran).

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how it might be done. This ‘pseudo’ process arises as a response to inadequate progress on the matter of mutual concern. The issue of fissile material production is currently firmly stuck in the pre-negotiation stage at the CD, blocked by the interests and preferences of state actors. None of the tabled drafts bears more weight than any other and all represent a starting point for negotiators to use should the program of work be adopted in the CD to launch negotiations. The GGE report however was supported by the P5 via a joint statement at the 2015 NPT Review Conference, ‘We welcome the efforts… and commend the final report…We are convinced that this report will facilitate future negotiations in the CD.’422

Issue Linkage

When attempting to discern the CSC issue, one seeks a specific occurrence that can be said to have given rise to the treaty.423 As the draft treaty exists in several forms and cannot be negotiated due to procedural deadlock in the CD, the situation is complex. In this case study, there is more evidence of what inhibits the treaty’s progress than of what facilitates it. Obstacles in this negotiation process have resulted from other matters becoming tied to the issue of fissile material management (the issue of mutual concern).424 The problem of issue linkage is arguably the single biggest hindrance to progress. In 1995, the Non-Aligned Movement (NAM) insisted that progress on a fissile material treaty be linked to real progress on the elimination of nuclear weapons but NWS refused to agree to this linkage.425 From 1999, the NAM then sought to link the conclusion of a fissile material treaty to a timed schedule for nuclear disarmament.426 This attempt wasted years and prevented adoption of the CD’s annual program of work before it was eventually abandoned.

422 Statement by the People’s Republic of China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, and the United State of America to the 2015 Treaty on the Non-Proliferation of Nuclear Weapons Review Conference. New York, April 30 2015: Para. 11. 423 Scott, The Political Interpretation of Multilateral Treaties, 13–17. 424 Sharon Squassoni, “Banning Fissile Material Production for Nuclear Weapons: Prospects for a Treaty (FMCT),” CRS Report for Congress Order Code RS22474 (July, 2006): 4. 425 Frank Barnaby, The FMCT Handbook, (London: Oxford Research Group, 2003), 3. 426 UNIDIR, “Negotiation of a Ban on Fissile Material,” (Geneva: UNIDIR, 2013), 18.

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From the mid-1990s until 2003, China and Russia insisted that work on the prevention of an arms race in outer space (PAROS) be linked to work on a fissile material treaty at the CD. In 2002, the US commenced a two-year review of its policy regarding a treaty to manage fissile material production and storage and this, too, prevented adoption of the CD program of work. The US found that it could not support a treaty under the parameters of the Shannon Mandate because it did not believe a fissile material production ban could be effectively verified.427 Evidently, completely separate issues became linked to initiation of fissile material negotiation and each prolonged the pre- negotiation process and prevented the commencement of negotiations for years.

As mentioned, the Shannon Mandate of 1995 was the first significant attempt to foster progress. Five years later, CD president Celso Amorim sought to create four separate ad hoc committees, each with a separate mandate so that lack of progress in one committee would not impede the progress of any other.428 This approach became the blueprint for future initiatives. The four tasks to be addressed separately were to:

1) negotiate a fissile material treaty on the basis of the Shannon Mandate; 2) exchange information and views to move towards the goal of nuclear disarmament; 3) examine and identify specific topics or proposals pertaining to PAROS; and 4) negotiate with a view to reaching agreement on Nuclear Security Assurances (NSAs).429

Differences between the four committees caused some members to question whether a legally binding outcome could result from the work of any one of the committees. This led to a minor refinement of the Amorim proposal in 2003 that is known as the A5 or five ambassadors effort.430 The accompanying Presidential Declaration made clear that the products of the ad hoc committees could eventually lead to international instruments

427 Sharon Squassoni, “Banning Fissile Material Production for Nuclear Weapons: Prospects for a Treaty (FMCT),” CRS Report for Congress Order Code RS22474 (July, 2006): 5. 428Annex A, “Conference on Disarmament: Tracing the Development of a Mandate for the Negotiation of the a Ban on the Production of Fissile Material for Use in a Nuclear Weapon or other Explosive Device,” in Negotiation of a Ban on Fissile Material (Geneva: UNIDIR, 2013), 19. 429 Ibid., 21. 430 Ibid., 19.

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acceptable to all.431 Some four years later, the CD Presidents tried another tactic: to appoint coordinators to preside over negotiations for a fissile material production ban without any preconditions, in place of subsidiary bodies such as ad hoc committees and working groups.432 The coordinators for the other issue areas (PAROS, Disarmament and NSAs) were mandated to preside over substantive discussions rather than negotiations.433 The following year, the Presidents attempted to refine the mandate to accommodate both the US rejection of the mention of verification and Pakistan’s insistence on the inclusion of verification in any negotiation for a fissile material treaty.434

Of note thus far is that none of the proposals discussed—not the Amorim, A5 or coordinator proposal—was even submitted to the CD for a formal decision. The Presidents judged ‘after extensive consultation, that although widely supported, none of the proposals would have received the necessary consensus to be adopted’.435 In somewhat of a breakthrough, the 2009 program of work was adopted by consensus. This established four working groups, each relating to the same four areas listed above.436 The groups would report within the year and would take into account all relevant views of the past, present and future. This development was made possible by compromise: by non-insistence on the part of China and Russia on a negotiating mandate for PAROS, by the NAM on NSAs and because the US delegation, now under President Obama, received revised instructions on the inclusion of verification measures. Unfortunately, adoption of the 2009 program of work did not translate into implementation of the formal decision. Through 2010, the Presidents attempted to expand the scope and accommodate Pakistan to no avail. Individual countries have over the years rehearsed the sorts of arguments and researched the technical aspects that might be viable, in readiness for when actual negotiations commence.

431 Ibid., 21. 432 Ibid., 20. 433 Ibid. 434 Ibid. 435 Ibid., 20. 436 Ibid., 21.

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In an attempt to circumnavigate obstacles in the CD in December 2012, the General Assembly established the GGE to make recommendations but not to negotiate a treaty banning the production of fissile material for nuclear weapons or other explosive devices.437 This essentially provided the working group with a carte blanche, ‘where no issue was off the table’.438 The GGE operates outside the CD but reports to both it and the General Assembly. Reports are intended to serve as a resource for negotiators and outline areas of convergence and divergence, areas where further technical/scientific work could be developed and where ancillary confidence-building measures could be developed.439 The GGE report of May 2015 was the first multinational forum in decades to discuss the treaty at the level of governmental experts. Soon after, France submitted a draft treaty for consideration to the CD that built on the GGE reports and took into account both the US and IPFM drafts, and also as a ‘Working paper’ for the 2015 NPT Review Conference.440 France views the path to disarmament clearly; two top priorities are implementation of the CTBT and launching negotiations on a treaty banning the production of fissile materials.441

Only the French draft, tabled at the CD on 9 April 2015 (Appendix Three), emerged from intergovernmental discussion and consultation at the governmental expert level.442 This is the only state-sponsored, internationally verifiable draft. The French draft also complies with the Shannon Mandate.443 However, it is significant that the French draft does not address pre-existing fissile material stocks; in this way, it primarily counters proliferation.

437 UNGA, Resolution 67/53. 3. 438 E. Goldberg, Chair of the GGE, in UNGA, A/70/81, “Group of Governmental Experts to make recommendations on possible aspects that could contribute to but not negotiate a treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices,” May 7, 2015, 7. 439 Ibid. 440 2015 Review Conference of the Parties to the Non-Proliferation of Nuclear Weapons, Working Papers, “French draft for a Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices,” NPT/CONF.2015/WP.28, 3; French Draft Treaty, CD/2020. 441 François Hollande, “President Hollande, Speech on Nuclear Deterrence, 19 February 2015,” Action of Citizens for Nuclear Disarmament (ACDN), Peter Low, (February 25, 2015): 7. 442 French Draft Treaty, CD/2020. 443 Shannon Mandate, CD/1299.

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The French draft is being considered in conjunction with the report of the GGE.444 The mere establishment of this ad hoc committee in 2012 was a hard-won battle and constitutes significant progress in an otherwise-stalled process. The French draft arguably emerged as a result of the work of this body. The United Nations Institute on Disarmament Research (UNIDIR) then produced a report that canvasses both to provide a summary of elements of the emerging consensus.445 The French draft, the GGE report and the UNIDIR report combined could perhaps be considered the best and most up-to- date starting point for states should the negotiation phase in the CD commence in earnest.

The simple act of initiating negotiations for a fissile material treaty is clearly politicised, with consensus lacking on whether the issue of pre-existing stocks should be settled before negotiations can recommence. The Shannon Mandate and all subsequent proposals were intended to release state parties from the need to settle the matters of pre-existing stocks, verification and linkage to disarmament, PAROS and NSAs. The Shannon Mandate essentially deferred any and all matters until states reached the negotiating table. After almost 20 years, the mandate was clearly insufficient and something else was required. The establishment of the GGE by the UNGA is a reaction to paralysis in the CD. Creating a hypothetical negotiating forum and establishing an arena wherein state parties could discuss pertinent issues without fear of incriminating themselves or of committing to national positions this essentially gave rise to the French draft treaty text of 2015. What is clear thus far is that the CSC issue, the issue of securing and managing fissile material, has been subsumed, covered over and lost amidst the bureaucracy of adopting a program of work in the CD.

Manipulating Terminology

Clearly, an important point of contention resides in the very title of the potential treaty, most easily identified by the use of brackets around the word ‘cut-off’: FM(C)T, Fissile Material (Cut-off) Treaty. This bracketing indicates whether the treaty will manage pre- existing fissile material stocks or only material produced after the treaty enters into force. In different drafts, the word ‘cut-off’ appears in brackets or not at all as an

444 UNGA, A/70/81. 445 Pavel Podvig, “Fissile Material (Cut-Off) Treaty: Elements of the Emerging Consensus,” UNIDIR, 2016. 2.

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indicator of the disagreement. In CSC terms, this lack of agreement reflects differing views on what the issue is that states seek to manage via a multilateral instrument. The theory suggests that without consensus agreement on what the CSC itself is, it is likely to be difficult to agree to a solution. The process from pre-negotiation to negotiation to opening for signatures will likely not ensue. Therefore, there cannot be a tight logical nexus between the issue, ideology and solution.

The IPFM draft specifically included the word ‘cut-off’ in brackets to make clear that this aspect of the CSC issue remains unresolved.446 Inclusion of the word ‘cut-off’ means that the treaty would manage stocks produced only after the its entry into force; absence of ‘cut-off’ from the treaty title indicates that pre-existing stocks would also be managed by the treaty. This understanding pervaded debate through the 1990s and early 2000s. In what is perhaps a strategic tactic, the French draft of 2015 reframes and inverts this debate by not including the word ‘cut-off’ and only applying to fissile material produced after entry into force. By obfuscating the traditionally understood meaning of the term ‘cut-off’, the French draft text seeks to embed consensus agreement to the CSC issue as being about future fissile material production only.

CSC Issue Conclusions

The broad issue of mutual concern facing states is how best to manage the production, storage and security of fissile material. To interpret the CSC issue using CSC theory, one must be guided by the question of what gave rise to the treaty. In this case, the treaty only exists in draft forms. Thus, we have sought to understand what has propelled the treatymaking process forward. What mechanisms drive the pre-negotiation phase? Under what parameters have states advanced talks? As these become clear, we can look to what led to certain parameters being set and, in this way, provide an answer to the question of what the CSC issue is for the fissile material treaty.

The Shannon Mandate represented a concerted effort on the part of states to find an unconditional way to the negotiating table. It codified the concept that nothing of a substantive nature need be settled before negotiations commence. It could, therefore, be argued that the Shannon Mandate gave rise to the draft treaty texts of 2006, 2009 and 2015. Pakistan’s dogged opposition to the commencement of negotiations persists even

446 IPFM draft treaty, CD/1878, 3.

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after the Shannon Mandate because they oppose the existing power structure. This section seeks to understand what gave rise to the texts rather than what prevents progress. In procedural, rather than substantive terms, the CSC issue is interpreted as: The establishment of the GGE in 2012 to fulfil the Shannon Mandate of 1995, leading to the French draft treaty of 2015.

What can be understood about the political aspects of this overdue treatymaking process? How do states operate when specific elements of a CSC are either lacking or in dispute? The CSC issue is as yet unclear, which might provide some insight into why it has proven impossible to incorporate this treaty into the regime thus far. The problem facing states is the knowledge that they must find a way to manage fissile material production and storage but consensus to a cooperation structure based on consensus agreement to a CSC issue for this treaty text cannot yet be reached. Issue contestation has led CD Presidents to devise innovative ways to release states from deadlocked negotiating positions. At the same time in years past, individual states have unilaterally proposed new draft treaty texts in an attempt to stimulate progress.

Community of Interest: Conference on Disarmament

The community of interest consists of those participants that express an interest in participating in resolution of the issue under consideration.447 For this subsequent treaty, members of the CD make up the community of interest and they must work through this organisation (though there are higher-stake participants). For these reasons, it is worth understanding precisely how this forum operates.

The CD was ‘established in 1979 as the single multilateral disarmament negotiation forum of the international community’.448 It is charged with the responsibility of negotiating a fissile material treaty. The successful operation of this organisation is crucial to the success or failure of any treaty subsequent to the NPT. The CD replaced the ENDC, the organisation responsible for negotiating and drafting the NPT. The CD has 60 member states and five NWS, though non-member states can be invited to

447 Scott, The Political Interpretation of Multilateral Treaties, 15. 448 UNOG United Nations Office at Geneva, “An Introduction to the Conference,” http://www.unog.ch/80256EE600585943/(httpPages)/BF18ABFEFE5D344DC1256F3100311CE9? OpenDocument.

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participate in substantive discussions. Despite being the premier institution for changes to nuclear arms control law, it has been thwarted in its work by states that seek to prevent perpetuation of the imbalance either between nuclear haves and have-nots, or between the neighbouring states of India and Pakistan.

The CD meets in three separate sessions each year that total 24 weeks in length. Six Presidents rotate with each presiding for a four-week period.449 Their task is to encourage state parties to resume negotiations. This role is akin to that of the CTBTO established by the CTBT to encourage its entry into force. Using another forum is an option that has not been followed through; the CD is mandated to conclude a treaty on fissile material but must work to attract state parties to the table before it can fulfil this role.450 Each January, the conference adopts its agenda for the coming year. This is based on proposals from member states, recommendations made by the General Assembly and previous CD decisions.451 A provisional agenda and program of work must be presented to the conference for consideration and adoption. It is at this provisional stage that stalling can occur. The CD is also empowered to create subsidiary bodies, ad hoc subcommittees, working groups or technical groups.452 For example, the GGE was requested by the UNGA in 2012 and established in 2013 ‘to make recommendations on possible aspects that could contribute to but not negotiate a treaty’.453

The power of the CD is considerable—most notably its power to create new international law to affect international security. It is, therefore, understandable why this institution is the site of much contestation between states. The requirement that each year’s program of work be presented to CD member states for consideration and adoption leaves the institution open to delays and obstructive processes.

449 Conference on Disarmament, “Rules of Procedure of the Conference on Disarmament,” December 19, 2003, CD/8/Rev.9, http://www.unog.ch/80256EDD006B8954/(httpAssets)/1F072EF4792B5587C12575DF003C845B/$ file/RoP.pdf. 450 Tariq Rauf & Usman Iqbal Jadoon, “Perspectives on a Treaty Prohibiting the Production and Stockpiling of Weapon-Usable Nuclear Material,” in Nuclear Non-Proliferation in International Law – Volume III, ed. Jonathan L. Black-Branch & Dieter Fleck (The Hague: TMC Asser Press, 2016), 139 -140. 451 Conference on Disarmament, “Rules of Procedure,” CD/8/Rev.9. 452 Ibid. 453 UNGA, Resolution 67/53, 3.

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After years of inaction, the Shannon Mandate of 1995 was supposed to bring state parties to the table, regardless of their perspectives, to allow the issues to be negotiated rather than left as preconditions to the commencement of negotiations. This has been the overarching aim for CD Presidents ever since. Each year, they attempt to craft another way to attract state parties to the table, to remove any and all preconditions that could hinder that eventuality. In 2007, the ‘without any preconditions’ clause was devised to accommodate all parties. In 2013, the GGE was established to figuratively devise a treaty, to pretend to draft an instrument to manage fissile material production and storage by making recommendations on what could or should be included. Each year, the President of the CD employs techniques and innovations to try to facilitate adoption of the year’s program of work. Something of a vicious circle ensues year after year with obstructive states rejecting the proposed program of work and CD Presidents devising more creative ways to propose a limitation-free program of work.

While the CD is the site for the negotiation of a fissile material treaty, the community of interest (or CSC participants) may not include all 65 state members, as it must be united by a common pursuit of the legitimation goal. In the original NPT treaty, the US and former USSR shared (with the UK, France and China) the goal of having better weapons than their potential adversaries (each other); this reflected the power structure at the time. In this subsequent treaty, in addition to the permanent five NWS, both India and Pakistan seek to have better weapons than each other and Israel is believed to have nuclear weapons to ensure its survival in a hostile region. Ford suggests that a five plus three treaty is practicable and would be of most immediate benefit by formally constraining the size of those non-NPT signatory states’ arsenals.454 These states could be considered higher-stake participants in the community of interest. A treaty that serves to halt fissile material production will not enable Pakistan to have better weapons than its potential adversary, India. When the legitimation goal for the original treaty of having better weapons than one’s potential adversary is thwarted, it follows that the community of interest member will seek to obstruct the treatymaking process. This highlights the tensions that arise when the members of the CD and the community of interest are not the same.

454 Christopher A. Ford, “Five Plus Three: How to Have A Meaningful and Helpful Fissile Material Cutoff Treaty,” Arms Control Association (March 2009): 7.

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Legitimation Goal

According to Scott, the legitimation goal is the self-interested competitive goal that negotiating states had in common that gave rise to the perceived need for a regime.455 The CSC solution provides restraint to unchecked pursuit of state policy.456 How then might a fissile material treaty text reflect a legitimation goal that contravenes certain state interests and the interests of the larger international community? For subsequent treaties, the goal for some state parties will have less to do with regime development and more to do with preservation of the original treaty of the legal regime. The NPT created an imbalance by codifying the differentiation principle and the states that were favoured seek to do all they can to maintain it. In the previous chapter on the CTBT, the legitimation goal was found to be to preserve the division between NWS and NNWS. This was shown to be the primary aim of NWS (though it remains unsaid) who have the most to lose should the legitimacy of this division erode.

Four of five NWS have declared a moratorium on fissile material production, with China declaring one unofficially. From this, it can be deduced that NWS have produced enough fissile material and no longer need to produce more. In the previous chapter it was found that NWS had sufficiently tested their arsenals and were in a position to relinquish the right to test. With this being the case, one may infer that the legitimation goal for any treaty that seeks to manage fissile material production is to limit the capabilities of outlier states and any state seeking to acquire nuclear arms. Ipso facto, for NWS the goal is to preserve the divide established by the original treaty and, in doing so, to block the pathway to nuclear weapons capability.

A treaty that manages fissile material production and simultaneously augments non- proliferation principles though preservation of inequality would be a welcome result for NWS—though this cannot be publicly proclaimed. The more palatable publicly stated aims centre on universalisation by bringing outlier states into the fold under the umbrella of nuclear arms control law. Amendment of the number of legitimate NWS of the NPT to reflect the reality on the ground does not seem likely anytime soon. A subsequent treaty that avoids binary classification of states (into the ‘have’ or ‘have-not’

455 Scott, The Political Interpretation of Multilateral Treaties, 13. 456 Ibid., 113.

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camps) and still maintains the NPT-codified advantages of the five NWS would form part of a central pre-condition for consensus. The legitimation goal—that NWS do not overtly speak of—is to include North Korea, Israel, India and Pakistan in a subsequent treaty without affecting the NPT. They seek to avoid mention of status as either NWS or NNWS. The legitimation goal is to preserve asymmetry created by the NPT and include outlier states in the subsequent treaty so fissile material production is limited and managed.

If preservation of the asymmetry established in the original treaty is indeed the aim, could the fact that outlier states are no longer duped be part of the reason that progress is hindered?457 The unspoken requirement of NWS, that any treaty subsequent to the NPT strengthens the division it created, might explain the failure of subsequent disarmament treaties to integrate and harmonise with the original. When the legitimation goal is interpreted in this way, we clearly expose the dynamics inherent in the power structures that were at play when the original treaty was negotiated. The persistence on the part of NWS for outlier states to become regulated, without concern for the repercussions of such a development to existing law that regulates the control of nuclear weapons, is enigmatic. Subsequent disarmament treaties are sought while the power structures that the original treaty confirmed are maintained. Precisely how outlier states can be brought into a subsequent treaty without altering pre-existing divisions of power and status remains unreconciled.

In Relation to the NPT

As a treaty subsequent to the NPT, a fissile material agreement that only manages stocks produced after entry into force (i.e. cut-off) would reinforce the NPT’s foundation ideology as it would preserve the status quo; existing stocks would remain untouched. This would mean that existing fissile material held by the five NWS would not be affected or managed multilaterally and hence, the imbalance would be preserved. The differentiation principle that underpins the original treaty would be retained. Reaching Critical Will, a seminal arms control NGO, argue that the US and Russian Federation seek to quantitatively freeze the maximum level of nuclear material around

457 “Pakistan, Working Paper, Elements of a Fissile Material Treaty (FMT),” CD/2036, August 24, 2015. 1(3). “The Treaty should make a genuine contribution towards the goal of nuclear disarmament and not merely be a non-proliferation instrument.”

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the world.458 Each of the five NWS had produced enough fissile material to last them indefinitely such that moratoria on production could be issued.459 Pakistan currently has less fissile material than India thus seeks to catch up before a treaty that freezes stock levels comes into effect.460

Pakistan seeks parity with India and has steadily expanded its fissile material production capabilities since the 1990s. The balance of power in conventional forces between the two states is weighted towards India. Nuclear testing by India, and then Pakistan in May 1998, created a nuclear deterrence policy founded on the mutually assured destruction (MAD) doctrine that Hashmi, Mushtaq and Khattak say guarantees South Asian stability.461 While the negotiation process remains deadlocked, Pakistan has narrowed the gap in some areas in the intervening years; as of 2016, both India and Pakistan retain similar levels of highly enriched uranium (3.2 and 3.1 tonnes, respectively) but India produces significantly more power reactor-grade plutonium (5.7 tonnes compared to 0.19 tonnes).462 Pakistan is concerned that, as has occurred in the past, power-grade plutonium can be converted to weapons-grade.463 More concerning for Pakistan is the capability that India retains to build an arsenal some seven times greater than its immediate adversary. Additionally, Pakistan hedges its options in that it would welcome a deal similar to the one signed between the US and India, but opposes the lifting of restrictions on the sale and transfer of nuclear material and exemptions from international controls that India receives as a result of the deal.464

458 Reaching Critical Will, “Fissile Material Cut-Off Treaty, Existing Stocks,” Women’s International League for Peace and Freedom. (2018). www.reachingcriticalwill.org/legal/fmct.html 459 International Panel on Fissile Materials, “Fissile Material stocks,” February 12, 2018, http://www.fissilematerials.org. India and Pakistan have similar inventories of HEU (3.2 and 3.1 tonnes, respectively) but inventories of non-civilian plutonium vary enormously (5.7 to 0.19 tonnes). 460 Munir Akram, “‘Fissile Material Treaty,’ Statement from Munir Akram, Ambassador of Pakistan,” (August 12, 2002): 1(5). 461 Hashmi, Muhammad Jawad, Muhammad Mushtaq, & Masood Ur Rehman Khattak, “Non- Proliferation Regime: A Pakistani Perspective on Fissile Material Cut-Off Treaty (FMCT),” Pakistan Journal of Social Sciences 35, no. 2 (2015): 543–555. 462 International Panel on Fissile Materials, “Fissile Material stocks,” February 12, 2018, http://www.fissilematerials.org. 463 Zia Mian and A. H. Nayyar, “Playing the Nuclear Game: Pakistan and the Fissile Material Cutoff Treaty,” Arms Control Today 40, no. 3 (2010): 17–24, 20. France used its Phoenix breeder reactor to produce plutonium for weapons. 464 Ibid. Pakistani Ambassadors to US Husain Haqqani (February 2010) and Asif Ezdi (January 2010). 21.

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Should a fissile material treaty be negotiated without the cut-off clause so that existing stocks are included, these stocks would then need to be declared and managed to eventually be converted to civilian use. This would create transparency and information sharing on pre-existing stocks to lead to eventual redundancy. A treaty of this kind that would manage all existing global fissile material stocks could contribute to disarmament as it would reduce and prevent vertical as well as horizontal proliferation. A treaty that manages both existing stocks and future production can potentially close the ‘have/have-not’ divide. This could eliminate distinctions between the NWS and the four NWS that remain outside the NPT regime. It could create transparency mechanisms and potentially, a repository or fuel bank. To do so would require acceptance of the principle of equality in the regime and for this to occur the CSC itself would change— and CSC theory indicates that this could only occur if there were a change to the power structure. As previously explained, Pakistan, India and other outlier states to the NPT, are unwilling to explore any option that does not address pre-existing stocks and hence, the treaty languishes in draft form.

To reinforce this seminal point, a treaty that includes pre-existing fissile material stocks (no cut-off) would serve as a disarmament measure. A treaty that does not include pre- existing stocks and is only applicable to fissile material produced after entry into force would create a cut-off that would serve as a non-proliferation measure. The remainder of this chapter will apply CSC theory and elaborate on this distinction as it relates to whether the subsequent treaty augments the original treaty and hence, integrates and harmonises with it. The next section will seek to determine what principle may underpin cooperation on this contested issue of mutual concern.

Foundation Ideology

According to CSC theory, successful negotiation of a treaty requires that states accept a pervasive idea as a basis on which to agree to a solution to manage an issue of mutual concern. Scott defines the foundation ideology as a principle or small set of interrelated principles alluded to in the preamble that underpins and unifies the agreed cognitive structure by which to manage the issue of mutual concern.465 When states enter the treaty text negotiation phase, this idea is unlikely to be questioned; it is in the pre-

465 Scott, The Political Interpretation of Multilateral Treaties, 15.

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negotiation phase that contestation between rival foundation ideologies most often occurs.466 As explained in earlier sections, a treaty to manage fissile material remains deadlocked in the pre-negotiation phase, with several drafts having been circulated. The preamble of the French draft will be used to interpret the proposed foundation ideology. We seek to understand whether it is the absence of an agreed upon foundation ideology that best explains why this treaty languishes in the pre-negotiation phase, whether consensus exists for an alternate foundation ideology that is incompatible with that of the NPT or whether the foundation ideology of the French draft augments that of the original treaty. Perhaps this is affected by a lack of agreement as to the CSC issue.

One of the central tenets of CSC theory is that when the foundation ideology of a subsequent treaty does not fortify, augment or build on that of the original treaty, it will likely be discarded in favour of one that does if the regime is to remain strong.467 This rejection occurs when the stability dynamic operates. Scott identifies this as a process of regime self-correction.468 Viewed as a sort of quality control mechanism, the rejection of drafts and negotiation/pre-negotiation stage intractability can serve as examples of the stability dynamic in action. When operational, it serves to assess whether the subsequent treaty will perform its necessary role in augmenting the original. It is, therefore, worth recalling the foundation ideology of the original treaty. For the NPT, the principle that all states agreed to is that further horizontal proliferation of nuclear weapons would increase security dangers.469 This is the principle that must be reinforced by any subsequent multilateral disarmament instrument. A subsequent treaty cannot challenge this idea if the regime is to remain strong.

In Relation to the NPT

The seminal term in the foundation ideology for the NPT is the word ‘further’. Its inclusion implies that there is a threshold at which proliferation maintains (or even diminishes) security dangers and one beyond which security dangers increase. In

466 Ibid., 467 Scott, The Political Interpretation of Multilateral Treaties, 97. For example, in the Antarctic Treaty System the idea of conservation supports scientism; conservation as an ideology reinforces the foundation ideology of scientism. 468 Ibid., 169. 469 Ibid.,164.

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practical terms, the foundation ideology could be interpreted to mean that with five NWS, security dangers are maintained but with additional NWS, security dangers increase. Bull refers to this threshold crossing as the ‘Nth power problem’.470 Does this apply here? Have security dangers increased with the addition of India, Pakistan, Israel and North Korea as outlier states of the NPT? Waltz and others argue against the prevailing view, asserting that more states with nuclear weapons capability do not increase security dangers.471 Does the lack of transparency measures and the absence of safeguards agreements among outlier states increase security dangers? Does the lack of universality, the very fact that these four states remain outside the controls of the NPT, contribute to a less stable international security environment? If we agree that the existence of these four nuclear states increases security dangers, we are reinforcing the foundation ideology of the original treaty. We then support the underpinning idea that five NWS pose an acceptable threat to international peace and security but that an additional state renders that threat unacceptable. Would it then not be plausible to also agree that the production of fissile material by these four outlier states, if left unchecked, also increases security dangers?

What result does the production of fissile material by the five NWS have? Does the stockpiling of highly enriched uranium by these five increase the likelihood of horizontal proliferation? Or is there confidence that they have complete control over their fissile material stocks? Do NWS have unequivocal control over their production and storage capabilities and therefore, can they not contribute to horizontal proliferation? It would seem that this is where much of the debate lies. This is precisely where contestation occurs, between believing in and allowing NWS to continue to store and produce (for specific purposes) fissile material because there is trust that, in doing so, security dangers will not increase. Or is the international community now convinced

470 According to Bull Nth power proliferation would not allow superpowers to maintain advantage indefinitely. See: Hedley Bull, The Control of the Arms Race: Disarmament and Arms Control in the Missile Age (New York: Fredrick A. Praeger Publishers, 1961): 153-154; Hedley Bull, “Future Conditions of Strategic Deterrence,” in Christoph Bertram ed., The Future of Strategic Deterrence (London: International Institute for Strategic Studies 1980): 20-21; 471 See: Kenneth N. Waltz, “The Spread of Nuclear Weapons: More May be Better,” Adelphi Paper 171 (London: International Institute of Strategic Studies, 1981): 3-5. Scott D Sagan & Kenneth N. Waltz, The Spread of Nuclear Weapons: A Debate Renewed (New York: W. W. Norton & Company, 2002): 6; Brad Roberts, “The Case for U.S. Nuclear Weapons in the 21st Century,” (Palo Alto: SUP, 2015): 3.

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that the production and storage of fissile material by any state—nuclear, non-nuclear or outlier, according to the NPT - would increase security dangers?

Thus, the fundamental question arises: does a subsequent treaty to manage fissile material production and storage fail to build on the NPT because it attempts to reverse the differentiation principle enshrined in the foundation ideology of the NPT? Does it try to replace the notion of further horizontal proliferation with one of all proliferation including vertical proliferation? The foundation ideology of the IPFM draft of 2009 was underpinned by the principle of equality, that all states liquidate their existing fissile material stockpiles and eliminate nuclear weapons and their means of delivery from national arsenals.472 By attempting to remove the distinction between nuclear and non- nuclear states, does a treaty on fissile material fail because it is discarded in favour of one that does reinforce the foundation ideology of the original treaty?

The Foundation Ideology of the Subsequent French Draft Treaty

The French draft incorporates a foundation ideology based on the principle of quantification and making the quantity of fissile material explicit:

That a legally binding and universally final cessation of the production of fissile material for nuclear weapons and all other nuclear explosive devices will place an overall quantitative limit on nuclear arsenals.473

This ‘quantifying’ principle seeks to foster transparency and make fissile material production finite. This is intended to ‘restrict the development and qualitative improvement of nuclear weapons and end the development of more advanced types of nuclear weapons’.474 While the preamble speaks of limiting qualitative improvement of weapons (vertical proliferation), the substantive articles of the text that dictate how the issue will actually be solved prioritise banning production and converting facilities for civilian use. To do so would essentially counter horizontal proliferation because all five

472 IPFM draft treaty, CD/1878, Preamble, para. b). 473 French Draft Treaty, CD/2020, Preamble, para. 6. 474 Ibid., para. 7.

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NWS no longer need to produce fissile material; they have already accumulated sufficient stocks to power their arsenals.475

In what is essentially a ban treaty, the French seek to universalise the moratoria issued by the NWS. This is promoted as part of a ‘gradual and systematic approach’ to both disarmament and non-proliferation.476 Presumably, the treaty proposes an issue– ideology–solution package by including a verification mechanism that will increase transparency; this is a logical extension of the principle of quantification. An account of global fissile material stocks is to be tallied by the IPFM. This draft treaty seeks to freeze that amount and prevent any further fissile material from being produced. This would allow NWS to retain their stocks but would prevent outlier states such as India, Pakistan and North Korea from producing any more fissile material. This would severely limit those states’ capacities to improve and increase their arsenals.

It is becoming apparent that the foundation ideology contained in the French draft integrates and harmonises with that of the original treaty by limiting further horizontal proliferation while preserving the divide between nuclear and non-nuclear states. By seeking quantification and a limit to fissile material production, the French draft echoes the limit imposed by the NPT. The NWS can retain their arsenals and their existing stockpiles and will be largely unaffected by this treaty. The outlier states are the target; their arsenals will be affected if they can no longer produce the fuel to power them. In this way, the proposed foundation ideology of the subsequent treaty builds on that of the original treaty. It can be interpreted as being that further horizontal proliferation as a result of fissile material production would increase security dangers.

Scott states that a durable legal regime will self-correct to maintain and tighten the nexus between the foundation ideology, CSC issue and CSC solution.477 This is one of the most important tenets of the theory (after the foundation ideology tenet) that can assist in determining whether a subsequent treaty builds on the original. Maintenance and logical reinforcement of the abovementioned nexus is required for any subsequent

475 International Panel on Fissile Materials, “Global Fissile Material Report 2015: Nuclear Weapon and Fissile Material Stocks,” Eights Annual Report of the International Panel on Fissile Materials (2015), 35. 476 Ibid., para. 8. 477 Scott, The Political Interpretation of Multilateral Treaties, 169.

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treaty. Thus far, the foundation ideology element of the nexus appears to be strengthened in the French draft. Before we can conclude whether this nexus is maintained or weakened in the fissile material case study, we need to examine the CSC solution. This will immediately follow the next brief section on the CSC myth.

CSC Myth

The myth surrounding a treaty will support the foundation ideology though it will not be identified in official documents.478 The CSC myth intertwines with the foundation ideology in the sense that it is the more obviously recognisable justification for the limitations that the treaty will impose on states. For the NPT, the foundation ideology was that further horizontal proliferation would increase security dangers and the associated myth was that an NPT would be a safeguard against nuclear war. In this example, it is the myth that is more obvious or more directly persuasive. The myth is the catch-cry, sound bite or slick message that is relayed to generate support for a multilateral instrument. It is the CSC component for public consumption while the foundation ideology is the CSC component part agreed to behind closed doors.

The connection between the CSC myths of original and subsequent treaties may be less important. Of primary importance is that the myth of the subsequent treaty augments and bolsters the foundation ideology of the original. The myth generally has little bearing on negotiations other than as a potential stimulus for leaders to act in accordance with the views of the citizens they represent. However, there is a noticeable chain reaction that generally occurs: the CSC myth of a subsequent treaty relates to its foundation ideology, which, itself, augments the foundation ideology of the original treaty. For the treaty to manage fissile material production, the proposed foundation ideology seeks quantification of fissile material as a means of controlling nuclear weapons development. The associated myth could presumably be about maintaining control; something along the lines of ‘knowledge is power’.

The CSC myth for a fissile material treaty could be promoted as a safeguard against rogue states such as North Korea by affirming that quantification of fissile material

478 Ibid., 16.

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production is also a safeguard against nuclear war. However, it is difficult to predict what the CSC myth will be because the proposed foundation ideology contained in the French draft, while tabled at the CD, has yet to be substantively negotiated. Once the treaty text is finalised the myth should be relatively easy to discern from speeches and rhetoric in support of the treaty. An informed guess could be something along the lines of: Knowledge is power; a fissile material treaty that quantifies fissile material production and storage levels will control nuclear weapons development and therefore, proliferation.

CSC Solution

CSC theory suggests that the CSC solution will follow logically from the foundation ideology that underpins the cooperative process of treaty negotiation for the issue of mutual concern. In this case study, very little is progressing in a usual fashion. This is primarily due to a lack of progress from the pre-negotiation to the negotiation phase. The crux of what state parties agree to do to address the issue that threatens their pursuit of the legitimation goal defines the CSC solution; this is usually succinctly stated within the first four substantive provisions of the treaty.479 The CSC solution for the French draft can be examined in relation to that of the NPT. A subsequent treaty’s CSC solution must support, augment and reinforce that of the original treaty or, at the very least, not detract from it. This section will determine if this is the case or not.

According to Scott, a CSC solution that is legitimated by the foundation ideology will appear to treat all actors equally.480 It will function as an agreed upon constraint on pursuit of the common goal that will manage the issue in such a way that states will remain able to pursue the common goal within the agreed limits.481 Let us see what light this sheds on the French draft treaty text.

Article 1 of the French draft specifies that the treaty will only manage future production of fissile material and not pre-existing stocks.482 State parties will be prohibited from

479 Ibid. 480 Ibid. 481 Ibid. 482 French Draft Treaty, CD/2020.

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‘producing fissile material for nuclear weapons or other nuclear explosive devices’.483 Here, the solution is plainly proscriptive. All states must agree to cease fissile material production for nuclear weapons purposes from the time that the treaty enters into force. The contentious issue of whether the treaty will manage future or pre-existing stocks is clearly delineated by a solution that reinforces the imbalanced status quo of unequal fissile stockpiles. This solution does not rectify the imbalance between Indian and Pakistani stockpiles, for example.

This CSC solution essentially serves to codify the moratoria of the five NWS and limit fissile material production by the outlier states. All other NNWS have agreed not to produce fissile material for weapons purposes and this is implemented via IAEA Safeguard Agreements. In this sense, as a management device, the treaty could be said to be directly aimed at outlier states in order to reduce their capacities to reach parity with NWS. Could this CSC solution reinforce the CSC solution of the NPT that states with nuclear weapons must not help others acquire them and states without nuclear weapons must not acquire them?484

The CSC solution for the French draft treaty contains two basic premises: states will not produce fissile material for certain nuclear military activities and states will declare and report on all production, use and possession of fissile materials. Precisely how this proscription would be verified is complicated by the fact that some fissile material can be used for both civilian and military purposes.

In contrast to the US draft of 2006, Article 5 of the French draft provides for verification. First, the Organization of the Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices will be established and will comprise three organs: a Conference of the States Parties, Executive Council and Technical Secretariat.485 States will declare all production facilities to the Technical Secretariat and will continue to declare all fissile material produced after the entry into force of the treaty. An annex on verification will need be negotiated and Article 5 states that this annex will form part of the treaty. This is yet another example of delaying that

483 Ibid., Article 1 484 Scott, The Political Interpretation of Multilateral Treaties, 164. 485 French Draft Treaty, CD/2020, Article 4 (A) 1 and 2.

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which cannot easily be managed by the treaty during the negotiation phase.486 Additionally, the Technical Secretariat will conclude a cooperation agreement with the IAEA to minimise duplication of verificatory work undertaken via safeguards agreements.487 Downstream verification refers to following the entire lifetime of the material from its point of origin.488 For the verification organs to operate effectively, the organisation will be required to cooperate with the IAEA and model its reporting on existing safeguards agreements. The adoption of these technical guidelines and agreements would form part of the sub-CSC solution.

Article 1 is seemingly unequivocal, while Article 2 provides definitions for what constitutes proscribed fissile material for nuclear weapons or other devices. The French draft defines fissile material as uranium enriched to 20% or more in isotope 235 or 233, or separated plutonium containing less than 80% of isotope 238 and any un-irradiated material containing either of these elements.489 Article 2 defines both production of fissile material and production facilities but leaves open the threshold to which such facilities can enrich or reprocess; a footnote indicates that these shall be defined during treaty negotiations.490 This is the first clue that a loophole exists. The treaty will not unequivocally prevent fissile material production for weapons purposes; reason remains to preserve the ability to enrich uranium or reprocess nuclear fuel.

Article 6 is titled ‘Non-proscribed military nuclear activities’ and gives states the right to ‘continue producing fissile material for military nuclear activities not prohibited by this Treaty’.491 The solution as stated in Article 1 is less definitive than originally thought. What an article permits or gives, another article takes away—though this is reversed in the draft. Article 1 removes a state party’s right to produce fissile material for ‘nuclear weapons or other nuclear explosive devices’,492 while Article 6 permits the production of fissile material for certain activities not prohibited by the treaty. This is

486 This speaks to the ‘crisis of multilateralism’, one of the broader issues that this research brings into focus. 487 French Draft Treaty, CD/2020, Article 5 (6). 488 Podvig, “FMCT: Emerging Consensus,” 7. 489 French Draft Treaty, CD/2020, Article 2 (1) a, b, c. 490 French Draft Treaty, CD/2020, ftnt. 1 to Article 2 (3) b, 3. 491 Ibid., Article Six. 492 Ibid., Article One.

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why consensus becomes almost impossible to achieve. Why would NNWS that seek elimination of nuclear weapons agree to certain kinds of military nuclear activity? The notion of permitted nuclear use brings the proposed ban on highly enriched uranium to the fore.

A Ban on Highly Enriched Uranium

The CSC solution identified in the French draft is parallel to other interim measures being sought outside the CD to limit or manage fissile material production, use and storage. An IPFM report proposes a ban on production of highly enriched uranium (HEU) for all military and civilian purposes.493 Russia and the US have enough excess HEU (700 tons) to supply non–weapon needs for the next few decades, by which time non-weapons use of HEU can be phased out via international agreement.494 Steven Pifer advocates for circumvention using informal understandings rather than permanent treaties when the latter proves unfeasible in the short term.495 Pragmatically, Pifer and O’Hanlon advocate for more flexible short-term instruments. They seek short-term wins for US security as a priority and see arms control as an area where the president can achieve great things.496 To this end, and in the absence of treaty progress, US President Obama convened Nuclear Security Summits in an attempt to promote regulation of fissile material and cooperation to prevent it from getting into the wrong hands.497 Since 2010, the summits have concentrated on limiting the use of HEU for civilian and military purposes.

One of the most significant challenges remaining for the Nuclear Security Summits is to end the use of HEU in naval reactors. Only four states continue to power submarines, aircraft carriers and icebreakers in this way, with the remainder of states using low

493 Frank Von Hippel, “Banning the Production of Highly Enriched Uranium,” IPFM, Research Report No. 15. (2016): 36. http://fissilematerials.org/library/rr15.pdf 494 Ibid., 4 495 Steven Pifer, “Fissile Materials and A Production Cut-off” in The Opportunity: Next Steps in Reducing Nuclear Arms, eds. Steven Pifer and Michael E. O’Hanlon (Washington D.C.: Brookings Institution Press, 2012). 174. 496 Michael E. O’Hanlon and Steven Pifer, “Why Nuclear Arms Control Should be on the President’s Agenda in 2013” in The Opportunity: Next Steps in Reducing Nuclear Arms, eds. Steven Pifer and Michael E. O’Hanlon (Washington D.C.: Brookings Institution Press, 2012). 497 National Security Summit, ‘History,’ http://www.nss2016.org/about-nss/history/. Inaugural meeting Washington, 2010, Seoul, 2012, The Hague, 2014, Washington, 2016.

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enriched uranium (LEU).498 While feasible, changing over presents technical difficulties for the US as the latest generation of nuclear submarines are fuelled by 30–40-year-old cores whereas Russian and Indian refuelling takes place every 10 years. Encouragingly, Russia has recently decided to fuel its next generation icebreakers with LEU.499 This replacement is feasible in all respects; the required technology exists and the excess of HEU can be spent in the interim. Progress of this sort would pave the way for a fissile material treaty that bans production of HEU for all purposes.500 This is not out of the question. Only five states continue to reprocess plutonium from used fuel,501 and this avenue is being vigorously pursued alongside (but separate from) the stalled CD process.

Regarding dismantlement and replacement, Frank Von Hippel, Co-chair of the IPFM, states that obsolete warheads are continually dismantled to repurpose their fissile material for the manufacture of replacement warheads.502 He says that the average US nuclear warhead is operational for about 20 years. ‘Therefore, if the dismantlement process continued unabated while the replacement process was halted, the US nuclear arsenal would be eliminated in approximately 20 years.’503 This is premised on a treaty that not only seeks to manage fissile material but also seeks to eliminate nuclear weapons—a course of action that he argues is unverifiable.504

498 F. Von Hippel, “Banning the Production of Highly Enriched Uranium,” 10.. 499 Ibid., 12, 30. 500 Pavel Podvig, Thomas E. Shea &Vitaly Fedchenko, “Addressing Disparities in a Non- Discriminatory Fissile Material Treaty: FM(C)T Meeting Series,” UNIDIR (2017): 43. 501 France, UK, Russia, Japan, India. See: World Nuclear Association, “Processing of Used Nuclear Fuel,” (February 2018): http://www.world-nuclear.org/information-library/nuclear-fuel-cycle/fuel- recycling/processing-of-used-nuclear-fuel.aspx; International Panel on Fissile Materials, “Facilities, Reprocessing Plants,” http://fissilematerials.org/facilities/reprocessing_plants.html; Fissile Material Production End Dates for Weapons-Grade Plutonium (WGP): US 1987; Russia 1994; UK 1989; France 1992. China’s information is secret though it is widely believed to have ceased production in 1990. Data from Arms Control Association, “Fissile Material Cut-off treaty (FMCT) at a Glance,” http://www.armscontrol.org/factsheets/fmct. 502 Frank Von Hippel, “Nuclear Weapon Elimination: Fissile Material and Warheads” in Security Without Nuclear Weapons? Different Perspectives on Non-Nuclear Security, ed. Regina Cowen Karp (Oxford: Oxford University Press, 1992), 160. 503 Ibid. 504 Ibid.

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Cessation of fissile material production will require states to permanently close facilities and dismantle them or convert them to civilian use as far as possible.505 This solution could potentially level the playing field at some point in the future but it cannot have a retroactive effect. Those states with large stockpiles of fissile material will keep them just as the five NWS were permitted to keep their arsenals in 1968 when the NPT opened for signature. The CSC solution component of the French draft will effectively reinforce the imbalance that was enshrined by the NPT except that it will now establish a second unbalanced dynamic. This emerged in the late 1990s when both India and Pakistan tested nuclear weapons and became outlier (as opposed to non-signatory) states to the NPT. India would benefit from the French draft of a fissile material treaty, which would enshrine its advantage over Pakistan by legitimating maintenance of significantly larger stockpiles of fissile material. This would establish a second-tier status quo. In the years that this treaty has languished, deadlocked in the CD, Pakistan has attempted to narrow the gap—to no avail.

The CSC solution contained in the French draft would augment that of the original treaty by reinforcing the non-transfer of nuclear material and technology. In the CSC nexus, the solution and foundation ideology elements are more aligned with that of the original treaty than the CSC issue. The French draft has not yet been considered by members of the CD. Until the final text is adopted, we cannot definitively say what gave rise to it. The construction of a tight logical nexus between the issue, ideology and solution is only two-thirds complete. The CSC issue of the NPT asks who will manage the nuclear threat. It may well be that the French draft, produced in response to meetings of the 25-member GGE ad hoc committee serves as a template that guides adoption of the final treaty text. If this is the case, the issue–ideology–solution nexus of the original treaty would be tightened by the subsequent treaty. The issue would be managed by NWS, the foundation ideology would limit further horizontal proliferation and the solution would require outlier states to stop production of fissile material while NWS would be allowed to retain existing stockpiles. In this way, the French draft treaty, if adopted, would strengthen the divide between nuclear haves and have-nots that was established by the NPT.

505 French Draft Treaty, CD/2020, Article 3 (2) a and b.

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Conclusion

In this chapter, application of CSC theory to the issue of fissile material management has brought a series of significant sticking points to the fore. By identifying the problems associated with the pre-negotiation process, it is possible to understand both the dynamics of the nuclear order and the requirements that must be met for a subsequent treaty to build on an original treaty. Each sticking point brings into operation the stability dynamic that rejects treaty initiatives challenging the original treaty. For a treaty that solves or seeks to manage the issue of fissile material management, we must assess which problem matters most: is it the substantive issue of whether to include existing stocks? Or is it the failure of the CD to initiate negotiations due to obstructionist state behaviour? Is it the opposition of NWS to bridging the divide between nuclear and non-nuclear states to bring outliers into the fold? Is it that state parties are not sure if they should support the treaty until they are certain whether it will emerge as a disarmament or non-proliferation measure?

Although the goal of reaching multilateral agreement to ban production of HEU and plutonium for nuclear weapons has been sought since 1954,506 what is clear is that there is a lack of consensus as to whether the treaty itself should primarily constitute a disarmament or a non-proliferation measure—and how, if it could do both, this might be achieved. This is perhaps why the IPFM draft was rejected as aiming too squarely for disarmament and why the French have proposed a draft that primarily counters non- proliferation. Pakistan obstructs the process out of self-interest, not wanting disparities or unfair advantages to become entrenched, as occurred with the NPT’s legitimation of the five NWS arsenals—which also delegitimised all others. If adopted, the French draft would solidify this imbalance by legitimising the possession of varying levels of existing fissile material, to the detriment of Pakistan. A power structure would then be institutionalised that Pakistan could not counter.

This chapter has focused on the clarity and cohesion of the CSC embedded in the draft treaty. The CSC interpretive method has provided analysis that demonstrates how, where and why the subsequent treaty lacks cohesion and clarity (see Table 3). This chapter has also examined how these factors relate to the existing regime and, in doing

506 UNGA, Res 808.

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so, has shed some light on why this subsequent treaty is failing to integrate and harmonise with the existing regime. The reasons for this have been shown to reside in the political realm; they have marginally more to do with the power maximising behaviour of CD states than with the obligations contained in the treaty text.

The interpretive method and resulting analysis distinguishes between the legal and political standing of the three pillars concept of the NPT by providing a more nuanced analysis of each pillar’s role in global efforts to manage these issues. A comparative analysis of CSC ideational components and an interrogation of the relationship between the subsequent (French draft) and the original (NPT) treaties has been provided to achieve this. Out of six CSC components, four have been shown to directly augment, support and build on their equivalent parts of the NPT. It seems feasible to assert that the existing power structure confirmed by the NPT would be reinforced by a fissile material treaty based on the terms of the French draft. The central problems reside in the fact that the communities of interest of the original and subsequent treaties are not aligned and that the new community of interest does not necessarily want to reinforce the earlier power structure. This reveals that a connection between the community of interest and the legitimation goal exists and furthermore that when these components are not aligned with that of the original, harmonization and integration is less likely to occur.

In CSC theory terms, it is imperative that the foundation ideology of the original treaty is reinforced by the ideologies underpinning subsequent treaties if the regime is to remain strong.507 Subsequent treaties to the NPT must confirm and not weaken its foundation ideology. For the nuclear arms control regime, it is precisely the fact that non-proliferation—the prevention of nuclear weapons dissemination beyond the five NWS—is the dominant ideology rather than disarmament that makes it difficult for subsequent treaties aimed at disarmament to integrate with the original. All subsequent treaties must reinforce the idea of non-dissemination first. In other words, subsequent treaties must preserve the divide between the five NWS and all other NNWS and thereby, reinforce the existing power structure. When a subsequent treaty supports this division (and hence, the ideology of non-proliferation), it can build on the original

507 Scott, The Political Interpretation of Multilateral Treaties, 97. For example, in the Antarctic Treaty System the idea of conservation supports scientism; conservation as an ideology reinforces the foundation ideology of scientism.

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treaty. When a subsequent treaty aims to level the playing field and squarely focuses on equal disarmament for all states, it will fail to garner consensus.

The assimilation aspect (how a subsequent treaty might integrate with the original treaty) has notably been under-considered by those working for a fissile material treaty. A meagre reference in one question on the broader issue of integration with the NPT was raised in the Canadian Working paper [on] questions to stimulate discussion of the elements of a treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices. Of 124 specific questions on verification, legal issues and basic obligations, the only one related to how a subsequent treaty might build on the original was listed in the section on scope:

What approaches could be pursued with regard to the transparency of fissile material stockpiles in weapons? How can the treaty build upon transparency efforts undertaken in the NPT and other forums?508

It is somewhat puzzling that the connection of a proposed subsequent treaty to the original is not more definitively considered. The integration of a subsequent treaty and its potential augmentation of the original is surely of significant import in a disarmament treatymaking process if the legal regime is to develop and become even more robust.

Table 3. Cognitive Structures of Cooperation (CSC) Components for the Treaty to Manage Fissile Material Production and Storage

NPT CSC Term Explanation509 Component FMT Component

Community of Those participants that US, USSR 65 state party interest express an interest in (former), UK, members of the CD, participating in resolution France, China, particularly India, of the issue under Ireland and state Pakistan, France and

508 Canada, Working Paper, “Questions to Stimulate Discussion of the Elements of a Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices”. CD/2025, 1 July 2015, 4. 509 Scott, The Political Interpretation of Multilateral Treaties, 13–17.

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NPT CSC Term Explanation509 Component FMT Component

consideration. party members the US. of UNGA First Committee

CSC issue The issue with which the Who will The establishment of treaty was established to manage the the GGE in 2012 to deal; the issue to which the issue of nuclear fulfil the Shannon treaty is a response. weapons and Mandate of 1995 led how will this be to the French Draft done? treaty of 2015.

Legitimation goal The self-interested, All states want Preserve asymmetry competitive goal that to enhance created by the NPT negotiating states had in national and include outlier common that gave rise to security by states in the the perceived need for a having better subsequent treaty so regime. The legitimation weapons than fissile material goal provides restraint to their potential production is limited unchecked pursuit of state adversaries. and managed. policy.

Foundation A principle or small set of Further Further horizontal ideology interrelated principles horizontal proliferation as a alluded to in the preamble proliferation of result of fissile that underpins and unifies nuclear material production the agreed cognitive weapons would would increase structure by which to increase security dangers. manage the issue of mutual security concern. dangers.

CSC solution The nub of what the states States with States must not parties are going to do to nuclear produce fissile tackle the issue that had weapons must material for certain come to threaten their not help others nuclear military pursuit of the legitimation to acquire them; activities and states goal. Usually succinctly those without must declare and

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NPT CSC Term Explanation509 Component FMT Component

stated within the first four them must not report on all fissile substantive provisions of acquire them. material production the treaty. facilities, use and possession.

CSC myth Reinforces the foundation The NPT is a Knowledge is power; ideology and is accepted as safeguard a fissile material treaty a basis for action by the against nuclear that quantifies fissile CSC members (though war. material production rarely articulated). and storage levels will control nuclear weapons development and proliferation.

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CHAPTER FIVE. THE 1997 AND 2007 MODEL NUCLEAR WEAPONS CONVENTIONS AND THE 2017 TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS: CHALLENGES TO THE EXISTING ORDER?

A treaty to manage the dismantlement and elimination of nuclear weapons is an almost universal goal included in the original treaty, the 1968 NPT. Since then, only two significant attempts have been made to negotiate a comprehensive disarmament agreement. The first attempt includes the 1997 and 2007 iterations of the NWC, which might be considered a ‘test run’. These instruments were negotiated to demonstrate to sceptical NWS and the international community that an agreement practically addressing the ‘whole’ issue of nuclear weapons could be drafted. The second comprehensive disarmament treaty is the 2017 TPNW, which incorporates the solutions, principles, ideas and language of the NWC. Also referred to as the ‘Ban treaty’, it is promoted as an instrument that closes the legal gap by banning nuclear weapons entirely. The TPNW requires that another agreement verifying the elimination of nuclear weapons be negotiated by each state with a competent authority at a later stage. The NWC, or ‘test run’ treaty, provides a template for managing disarmament. States first report on their arsenals and then dismantle them according to a mutually agreed upon schedule.

Thus far, disarmament treaties subsequent to the NPT in the nuclear regime have sought to manage only parts of the issue: nuclear weapons testing or fissile material production and storage. In contrast, the TPNW and NWC are comprehensive—in both treaty text and rhetoric, they claim to support and in no way contravene the provisions of the NPT. How might this claim be tested? In this chapter, the legal integration and political harmonisation of these treaties with the NPT will be examined, particularly how the foundation ideology of the TPNW might over time erode that of the NPT and potentially threaten the durability of the original treaty.

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Background

It is now clear that consensus agreement to the foundation ideology of the NPT led to the establishment of an asymmetrical power structure. We might expect that any subsequent treaty seeking to undermine this power structure will be rejected in a strong legal regime with an operational stability dynamic. With this in mind, we turn to the NWC (Appendix Four), which arguably served as precursor to the TPNW (Appendix Five), which opened for signature on 20 September 2017.510 Even though the NWC did not progress to the open for signature stage, it is worth interpreting alongside the TPNW. Both agreements are examples of legal instruments to comprehensively address nuclear disarmament. They both seek the absolute elimination of nuclear weapons from the arsenals of all states, both those that are state parties to the NPT and those states that remain outside the regime.511

The justification for the claim that the NWC served as a precursor to the TPNW is twofold: the language and many of the central concepts or, in CSC terms, the solutions and foundation ideologies, are similar in both. While the link between the two treaties has not been explicitly made in literature on this topic, the community of interest that promoted their negotiation processes and galvanised their foundation ideologies was the same for both: the International Campaign to Abolish Nuclear Weapons (ICAN) and NNWS.512 Once the NWC was drafted and tabled in the UNGA, it became clear that it

510 Treaty on the Prohibition of Nuclear Weapons, September 20, 2017, UNTS series number not yet available. https://treaties.un.org/doc/Treaties/2017/07/20170707%2003-42%20PM/Ch_XXVI_9.pdf. Model Nuclear Weapons Convention (1997) drafted by International Association of Lawyers against Nuclear Arms (IALANA), International Network of Engineers and Scientists against Proliferation (INESAP) and International Physicians for the Prevention of Nuclear War (IPPNW), UNGA A/C.1/52/7 UNGA, “General and Complete Disarmament,” 52nd session, Agenda item 71, November 17, 1997. http://undocs.org/A/C.1/52/7; Model Nuclear Weapons Convention (2007) drafted by International Campaign to Abolish Nuclear Weapons (ICAN). ICAN was established after a merge of IALANA, INESAP and IPPNW and ‘is a coalition of non-government organizations in one hundred countries.’ UNGA Doc A/62/650, “Letter dated 17 December 2007 from the Permanent Representatives of Costa Rica and Malaysia to the United Nations, addressed to the Secretary-General,” 62nd session, agenda item 98, January 18, 2008. http://lcnp.org/mnwc/mNWC_2007_Unversion_English_N0821377.pdf

511 India, Pakistan, Israel and the Democratic Republic of North Korea are not party to the NPT. 512 John Borrie et al. refer to a change in strategy adopted by NGOs later represented by ICAN. The NWC sought to eliminate and prohibit nuclear weapons while the TPNW only seeks to prohibit nuclear weapons. John Borrie, Michael Spies & Wilfred Wan, “Obstacles to Understanding the

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would languish there and that NWS would not engage with it. In response, ICAN pursued another tactic: to outlaw or ban nuclear weapons, based on the potentially abhorrent and unmanageable humanitarian consequences of detonation. The two treaties are remarkably similar, though as a putative treaty, the NWC was able to aim higher and includes more onerous obligations. The TPNW was subject to an interstate negotiation process wherein some of the more ambitious provisions and language were diluted.

The CSC interpretive process necessarily draws on political aspects of the multilateral treatymaking process to discern what gave rise to the treaties, what solutions they contain, what the underlying principle upon which negotiating parties agree is and what narratives or myths augment these principles. This permits consideration of how specific ideational units of analysis integrate or harmonise with those same components underpinning the NPT. To apply CSC theory, we must first ascertain what gave rise to these treaties. Examination of the legal mandate for drafting the treaty should prove useful as a first step for contextualising the treaty within the nuclear arms control regime.

CSC Issue

The factors that gave rise to the NWC will be examined before we assess those responsible for the TPNW. The NWC is considered a ‘test run’; it was an attempt to craft a legal instrument to demonstrate that it could be done. The TPNW then built on the consensus, expertise and practice of the NWC. As the first comprehensive disarmament initiative, the NWC could be considered the most direct and literal response to the call for a treaty on complete and general disarmament in compliance with Article VI of the NPT. The NWC serves as a template of what form an instrument that achieves complete and general nuclear disarmament could take. For this reason, the convention has been interchangeably prefaced by the words ‘model’, ‘proposed’ or ‘draft’, though it is sometimes simply referred to as the NWC, as it is here.513

Emergence and Significance of the Treaty on the Prohibition of Nuclear Weapons,” Global Change, Peace & Security (April, 2018): 6, 13. 513 For general factual information about the NWC see: Nuclear Threat Initiative, “Proposed Nuclear Weapons Convention (NWC),” May 1, 2017, http://www.nti.org/treaties-and-regimes/proposed- nuclear-weapons-convention-nwc/; Campaign for Nuclear Disarmament, “Nuclear Weapons

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In support of both Article VI of the NPT and the 1996 ICJ advisory opinion on the legality of nuclear weapons, the UNGA adopted resolution 51/45M on 10 January 1997 and, thereby, confirmed the obligation to not only pursue but to conclude nuclear disarmament negotiations. 514 This led to the submission of the NWC to the UNGA later that same year by Costa Rica.515 A decade later, in 2007, an updated NWC was submitted by Costa Rica and Malaysia, initially to the NPT Preparatory Commission in Vienna,516 and later to the UNGA.517 Significantly, the NWC had been drafted for state parties by a network of experts in policy, law, science and disarmament who were given this mandate by the international community of states acting through the UNGA.518

The NWC and TPNW are multilateral agreements that aim to ban nuclear weapons. They follow the tradition of treaties that outlaw weaponry such as the Biological Weapons, Chemical Weapons and Landmines Conventions.519 According to its drafters, the updated NWC of 2007 represents an attempt to unite the current nuclear disarmament and non-proliferation regimes.520 The TPNW continued where the NWC

Convention,” http://www.cnduk.org/campaigns/global-abolition/nuclear-weapons-convention; ICAN, “How the ban treaty works,” http://www.icanw.org/why-a-ban/the-case-for-a-ban-treaty/. 514 UNGA, Res 51/45, Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons, 51st session, January 10, 1997, A/RES/51/45M, http://repository.un.org/handle/11176/330445. 515 UNGA, General and Complete Disarmament, A/C.1/52/7. 516 Preparatory Committee for the 2010 Review Conference of the Parties to the Treaty on the Non- Proliferation of Nuclear Weapons, “Model Nuclear Weapons Convention – Working Paper Submitted by Costa Rica,” May 1, 2007, NPT/CONF.2010/PC.1/WP.17, https://documents-ddsny.un.org/doc/UNDOC/GEN/N07/327/68/PDF/N0732768.pdf?OpenElement 517 UNGA, Letter dated 17 December 2007 from the Permanent Representatives of Costa Rica and Malaysia to the United Nations addressed to the Secretary-General, 62nd session, agenda item 98, January 18, 2008, UNGA A/62/650. 518 UNGA Resolution 61/83, “Follow Up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons,” December 6, 2006, A/RES/61/83. 519 Treaty titles: Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, April 10, 1972, 1015 UNTS 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, April 29, 1997, 1974 UNTS 317; The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, March 1, 1999, 2056 UNTS 241. 520 International Physicians for the Prevention of Nuclear War (IPPNW), International Association of Lawyers Against Nuclear Arms (IALANA) and International Network of Engineers and Scientists Against Proliferation (INESAP), Securing Our Survival (SOS) The Case for a Nuclear Weapons Convention: The Updated Model Convention on the Prohibition of the Development, Testing, Production, Stockpiling, Transfer, Use and Threat of Use Threat of Use of Nuclear Weapons and on their Elimination (New York: The Lawyers Committee on Nuclear Policy Inc, 2007), 14, http://lcnp.org/mnwc/survival.htm.

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ended by attempting to accommodate and assimilate old and new elements of the regime, bilateral and multilateral action and incremental and comprehensive approaches. Quite literally, the NWC and TPNW serve as a ‘catch-all’ by primarily addressing disarmament but also including peaceful uses of nuclear energy. Non- proliferation is not addressed; to do so would negate elimination goals. In this way, it could be viewed as an inadvertent attempt to rewrite the NPT.

A convention to end the arms race and eliminate nuclear weapons is a stated aim of the original treaty. Article VI of the NPT created an obligation for states to work towards negotiation of a complete and general disarmament treaty.521 Calls for Article VI compliance have sounded at each quinquennial NPT review conference and the NWC and TPNW represent attempts on the part of NNWS to both quicken the process and ensure compliance.522 In the ‘grand bargain’ of the NPT, NNWS agreed to not seek nuclear weapons capabilities and NWS agreed to work towards disarmament.523 To that end, the NWC and TPNW are initiatives of NNWS who became frustrated by NWS inaction. These subsequent treaties were designed to encourage NWS to make progress, uphold their end of the bargain and finally negotiate and conclude a disarmament treaty. Thus, NWC is best considered a model of what a comprehensive agreement to eliminate nuclear weapons might involve.

The TPNW certainly drew on the template that the NWC provided. As an initiative of NNWS, it gained momentum through a series of conferences that examined the humanitarian consequences of nuclear weapons.524 During these events, the idea of banning nuclear weapons (thereby, closing the legal gap to comply with international

521 NPT, Article VI. 522 See for example: Statement by Mr Briefne O’Reilly at the First Committee UNGA 69th session Debate on Nuclear Issues,” New York, (Oct. 2014) “Article VI is a treaty obligation upon all NPT States, not just the nuclear-weapon states.”; 3. Joint Declaration by the Ministers for Foreign Affairs of Brazil, Egypt, Ireland, Mexico, New Zealand, Slovenia, South Africa and Sweden, “A Nuclear- Weapons-Free-World: The Need for a New Agenda,” June 9, 1998. http://www.ccnr.org/8_nation_declaration.html; Middle Powers Initiative, “28 States Participate: Inaugural Article VI Forum,” October 3, 2005. http://www.middlepowers.org/mpi/pubs/ArticleVI_Report.pdf 523 NPT, Articles I and II. 524 Humanitarian Consequences of Nuclear Weapons Conferences: Oslo (2013), Nayarit (2014) and Vienna (2014). See: Federal Ministry Europe, Integration and Foreign Affairs, “Vienna Conference on the Humanitarian Impact of Nuclear Weapons,” https://www.bmeia.gv.at/en/european-foreign- policy/disarmament/weapons-of-mass-destruction/nuclear-weapons-and-nuclear-terrorism/vienna- conference-on-the-humanitarian-impact-of-nuclear-weapons/

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humanitarian law) evolved. They could be said to have given rise to the TPNW, the ‘Ban treaty’, which seeks to codify a normative taboo in international law against the use and possession of nuclear weapons.525 Consensus was reached on a notion of public conscience; nuclear weapons primarily affect people and Hibakusha, survivors from Hiroshima and Nagasaki were integral to fostering this understanding.

Progress towards the ‘Ban treaty’ relied on international humanitarian law principles of proportionality and the rule of distinction to highlight the fact that nuclear weapons are disproportionate and do not distinguish between civilians and combatants. As mentioned in the ‘Martens Clause’ and The Hague Conventions, the ‘dictates of public conscience’ is a legal concept that provides an indication of the legal status of specific weapons systems for which there is no specific prohibition treaty.526 The treaty was supported by some four million declarations of public conscience, to provide further evidence of widespread public condemnation of nuclear weapons.527 Article VI of the NPT calls for ‘cessation of the arms race’, which further confirms that while nuclear weapons are currently part of the international system, the aim of the international community is their elimination in future.

‘Nuclear Elimination’ in the Regime

To consider what gave rise to the NWC and TPNW, it is worth examining how the concept of nuclear elimination evolved. To better understand the political context which gave rise to these comprehensive disarmament treaties, it is prudent to question whether the goal of nuclear elimination was ever a stated goal, and if so, when was it mentioned and by whom. To that end, we shall briefly trace the term ‘elimination’ in the context of the nuclear arms control regime to interpret the CSC Issue for the NWC and TPNW. In 1995, state parties to the NPT agreed to indefinitely extend the treaty and the final

525 Ray Acheson, “Banning Nuclear Weapons: Principles and Elements for a Legally Binding Instrument, 1st ed.” Women’s International League for Peace and Freedom (2017): 7-8. 526 Rupert Ticehurst, “The Martens Clause and the laws of Armed Conflict,” International Review of the Red Cross 137, (April, 1997): 2. “…refers to a host of draft rules, declarations, resolutions and other communications expressed by persons and institutions highly qualified to assess the laws of war although having no governmental affiliations.” 527 See Kate Dewes & Rob Green, “The World Court Project: History and Consequences,” Canadian Foreign Policy Journal 7, no.1 (Fall, 1999): 75-76; Soka Gakkai International (SGI), “On the Objectives and Significance of Prohibiting Nuclear Weapons,” United Nations Conference to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons, Leading to Their Total Elimination A/CONF.222/2017/NGO/WP.8 (23 March, 2017): para 17.

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outcome document from this review conference contained a suite of promises. A re- commitment to Article VI was included, but to what extent was nuclear elimination a goal?

Recalling how the treaty text of the NPT was negotiated and how differential treatment of states was agreed to, we should remember that the rival ideologies of non- proliferation and disarmament were more obviously contested before the series of Irish resolutions.528 From 1958 onwards, the principle of non-dissemination that was to become codified as non-proliferation triumphed over any principle relating to dismantlement or elimination of nuclear arms. The central element of the grand bargain is found in Articles I and II of the NPT, which prohibit the transfer of nuclear technologies between NWS and NNWS. This proves that horizontal non-proliferation was primarily and directly managed by the treaty. The obligation to disarm, relegated to Article VI, was deliberately left vague as consensus to a precise course of action by which to operationalise that could not be reached.529 This ensured that the process of negotiating a disarmament instrument became a second-level obligation and ending the arms race could only take place within the context of the NPT.

With the issue of disarmament safely ensconced in the original treaty that confirmed a power structure whereby five NWS dominate, has there been change in the obligation to pursue disarmament since the entry into force of the NPT in 1970 or since the NPT was indefinitely extended in 1995? Also, might the goal of nuclear weapons elimination be considered as separate to disarmament or as an extension of it? Does elimination now stand as an independent ideology to rival both non-proliferation and disarmament, or is it synonymous with complete and general disarmament?

528 See Baruch and Gromyko Plans of 1946. Documents on Disarmament 1945-1959, Volume I (1945–1956), U.S. Department of State, Washington, DC, August 1960, pp. 7–16 and 17–24. 529 Eighteen Nation Committee on Disarmament, “Final Verbatim Record of the Conference of the Eighteen-Nation Committee on Disarmament [Meeting 335],” ENDC/PV.335 para. 18-21.; Christopher A. Ford, “Debating Disarmament: Interpreting Article VI of the Treaty on the Non- Proliferation of Nuclear Weapons,” Non-Proliferation Review 14 no.3, (Nov. 2007): 402-405; Matthew Harries, “Disarmament as Politics: Lessons from the Negotiation of NPT Article VI,” Chatham House: The Royal Institute of International Affairs (2015): 2.

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A brief review of the term ‘elimination’ in this context reveals the following chronology.530 The first UNGA resolution on disarmament at the seventeenth plenary session on 24 January 1946 called for ‘elimination from national armaments of atomic weapons and of all other weapons of mass destruction’.531 During the Cold War the term ‘elimination’ was largely absent; however, ‘ending the arms race’ was the more common vernacular. An exception to this is found in the PTBT of 1963, which contains text that could be read as a precursor to Article VI, the prototype of disarmament ideology. The preamble reads:

Proclaiming as their principal aim the speediest possible achievement of an agreement on general and complete disarmament under strict international control in accordance with the objectives of the United Nations which would put an end to the armaments race and eliminate the incentive to the production and testing of all kinds of weapons, including nuclear weapons.532

Here, ‘eliminate’ is used in a different context. The goal of ending the arms race is reiterated, as has been done regularly since 1946, but in this example, states seek to eliminate the incentive to keep nuclear arms rather than eliminate the weapons themselves. The repeated iteration of the goal of ending the arms race that characterised the Cold War period could underpin an ideology of nuclear elimination. In practical terms, the production and modernisation of nuclear arsenals need cease before reductions and total elimination can occur. Therefore, the threshold at which lofty aims ceased to be aspirational and began to underpin international agreements remained indeterminate through the Cold War era.

The use of the term ‘nuclear elimination’ emerged more prominently in the early years after the Cold War. By 1995, it was included as a direct goal by state parties to the NPT. From 1992, the term ‘elimination’ and the goal of working towards elimination of nuclear weapons were used more frequently, particularly in 1995 when ‘elimination of nuclear weapons’ was included in Decisions 2 and 3 of the final outcome document of

530 Primary source material canvassed to investigate and survey the term ‘elimination’ include: nuclear arms control agreements (in force and yet to enter into force), UNGA disarmament committee documents, final outcome documents from NPT review conferences and CD reports. 531 UNGA Resolution 1 (1), Establishment of A Commission to Deal with the Problems Raised by the Discovery of Atomic Energy, 17th Plenary Meeting, January 24, 1946. A/RES/1 (1). 532 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, October 10, 1963, 480 UNTS 43, http://www.nti.org/media/pdfs/aptptbt.pdf?_=1316540726.

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the NPT review conference. Decision 2, titled ‘Principles and Objectives for Nuclear Non-Proliferation and Disarmament’ reads:

Reiterating the ultimate goals of the complete elimination of nuclear weapons and a treaty on general and complete disarmament under strict and effective international control.533

The seminal decision to extend the NPT is worded as follows:

Having reviewed the operation of the Treaty and affirming that there is a need for full compliance with the Treaty, its extension and its universal adherence, which are essential to international peace and security and the attainment of the ultimate goals of the complete elimination of nuclear weapons and a treaty on general and complete disarmament under strict and effective international control.534

From this, we may identify elimination and disarmament as synonymously nested into the non-proliferation regime from 1995 onwards. It does not appear that the term ‘complete and general disarmament’ can be separated from ‘nuclear elimination’ after the 1995 decision to indefinitely extend the NPT. NWS may prefer to use the term ‘disarmament’ in relation to efforts that work to that end, such as confidence-building measures, while NNWS may use the term ‘elimination’ when referring to similar measures that build transparency and hence, confidence. After 1995, the terms disarmament and elimination appear interchangeably, though politically, they tend to correspond to NWS and NNWS, respectively.

CSC Issue in Relation to the NPT

To interpret the CSC issue, the long- or short-term circumstances that may have given rise to the treaty must be considered. A perennial question challenging the community of interest and the international community since negotiations towards the NPT commenced was who would manage the nuclear threat and how? This has already been identified as the CSC issue for the NPT.535 Arguably, because the NWC and TPNW

533 Decision 2, The Final Document of the 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Organization and Work of the Conference (NPT/CONF.1995/32 (Part I)). http://www.un.org/Depts/ddar/nptconf/2142.htm 534 Decision 3, The Final Document of the 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Organization and Work of the Conference (NPT/CONF.1995/32 (Part I)). http://www.un.org/Depts/ddar/nptconf/2142.htm 535 See Chapter Two, p. 46.

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evolve out of obligations from the original treaty, conclusion of a subsequent disarmament treaty is a second-level treaty obligation. ‘Complete and general disarmament’ and ‘nuclear elimination’ become sub-issues. If the CSC issue were the same for the NPT and NWC/TPNW, we would expect a new treaty to replace the old as it would be difficult to have two solutions for the same issue.

Given the relationship of the NWC/TPNW to the NPT, weighing an interpretation of CSC components for the subsequent treaties against those of the original enables a comparative assessment of CSC units of analysis. By way of a management device, the NPT codified issues of mutual concern relating to three aspects of nuclear arms control: non-proliferation of nuclear weapons, disarmament of nuclear weapons and peaceful use of nuclear energy. Taken together, the Preamble and Article VI of the original treaty, the advisory opinion of the ICJ and annual resolutions of the UNGA First Committee represent the international legal mandate for a comprehensive instrument to facilitate complete and general disarmament or the elimination of nuclear weapons.

This legal mandate is a significant causal factor. It explains in procedural terms what gave rise to the NWC and TPNW and why the NWC was drafted and submitted in 1997 and then revised in 2007. Further, it explains why the General Assembly convened a conference to negotiate an instrument to prohibit nuclear weapons.536 The original obligation to negotiate a comprehensive disarmament agreement is found in Article VI of the NPT:

The significance of Article VI of the NPT cannot be overstated. Lack of compliance with this article has formed the basis of claims by NNWS at each NPT review conference and all noncompliance claims reference it.538 While frustrating for NNWS, this lack of compliance does not alter the grand bargain and, in CSC terms, it is

536 UNGA, Res 71/258., Taking forward multilateral nuclear disarmament negotiations, 71st session, agenda item 98, January 11, 2017, A/RES/71/258. 537 NPT, Article VI. 538 UNGA, “Letter dated 17 December,” UNGA A/62/650, para. 3; I.C.J. Reports, Legality of the Threat or Use of Nuclear Weapons, paras 98–103.

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secondary to the issue–ideology–solution nexus that is integral to the power structure of the NPT. The differential treatment of states has already been interpreted as the foundation ideology for the NPT wherein maintenance of the divide between states that can legitimately possess nuclear weapons and all others is paramount.

The 1995 NPT indefinite extension review conference decision documents provide a legal mandate and the political impetus to conclude a subsequent disarmament agreement. Principles and Objectives for Nuclear Non-Proliferation and Disarmament, Decision Two outlined measures for effective implementation of Article VI through a program of action. Paragraph 4(c) reads:

The determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating those weapons, and by all States of general and complete disarmament under strict and effective international control.539

The suite of promises that states agreed to in return for indefinite extension of the NPT in 1995 fostered consensus among NNWS to draft a nuclear elimination treaty without NWS involvement.

In 1996, in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, the ICJ issued a unanimous decision by 14 eminent judges. This is the second most significant legal mandate for concluding a convention to eliminate nuclear weapons. From this ICJ advisory opinion, we may infer that elimination of nuclear weapons is logically more fundamental to non-proliferation in that it captures the concept of ‘complete disarmament’. Otherwise, the slow pace of disarmament could continue to occur in a less extreme form:

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control [emphasis mine].540

The court proclaimed ‘the full importance of the recognition of Article VI … an obligation to negotiate in good faith nuclear disarmament’.541 In subsequent paragraphs,

539 Decision 2, NPT/CONF.1995/32, 164. 540 I.C.J. Reports, Legality of the Threat or Use of Nuclear Weapons, 267. 541 Ibid., para. 98. See also: Elizabeth J. Shafer, “Good Faith Negotiation, the Nuclear Disarmament Obligation of Article VI of the NPT, and Return to the International Court of Justice,” 8.

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the court cited a thorough list of precedents where this obligation had been agreed to, beginning with the first General Assembly resolution of 1946542 and including both the final document of the 1995 NPT review conference and Security Council Resolution 984 of 1995, which reaffirmed the requirement that all states fulfil their obligations.543 However, Security Council Resolution 984 appears to dilute or reduce the obligation so that disarmament need not necessarily be complete:

Urges all States, as provided for in Article VI of the Treaty on the Non- Proliferation of Nuclear Weapons, to pursue negotiations in good faith on effective measures in relation to nuclear disarmament under strict and effective international control which remains a universal goal.544

These decisions reinforce the obligation to negotiate and conclude a disarmament treaty subsequent to the NPT. Although undisputed, the requirement that states progress with the task is underscored by repeated iterations of the obligation that Article VI confers. These examples provide the legal context that led to the drafting of the NWC and TPNW. Other factors will be identified as we continue to interpret the CSC issue that gave rise to these subsequent treaties.

The Nuclear Weapons Convention

The NWC could arguably have emerged from the Cold War’s abrupt and unexpected end.545 In CSC terms, a change to the power structure will likely challenge the legal regime. The uncertainty of a unipolar or emerging multipolar system of global governance may have given NNWS the motivation to act instead of waiting for NWS to act. Many of the solutions contained in the NWC are akin to early atomic governance proposals such as those of Baruch, Acheson and Lilienthal. This is because ‘they are the only answers there are to the enduring dilemmas of the nuclear age’.546 According to an

542 UNGA, Res A/RES/1, para 5 (c). Calling for the establishment of a commission whose terms of reference included ‘the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction.’ 543 The Final Document of the 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Organization and Work of the Conference, NPT/CONF.1995/32 (Part I), para. 101 and 103. 544 UN Security Council, “Use of Nuclear Weapons,” 3514th meeting, UNSC S/RES/984, April 11, 1995, para. 8. 545 Tad Daley, Apocalypse Never: Forging the Path to A Nuclear Weapon-Free World (New Jersey: Rutgers University Press, 2010), 161. 546 Ibid., 162.

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unabashed abolitionist such as Daley, the CSC issue (the reason the treaty was drafted) was not so that it would be adopted as is. The networks of lawyers, physicians and policy experts that devised it were not so naïve as to think this could be the case. Rather, the treaty was drafted to ‘demonstrate that a convention to eliminate nuclear weapons can be conceived [of], that the hard and thorny issues can be confronted, and that we can envision the specific architecture of a nuclear-weapon-free world’.547

To explain what gave rise to the treaty (or identify the CSC issue), Wright suggests that the first draft of the NWC (1997) emerged in response to the 1996 advisory opinion of the ICJ, the Legality of the Threat or Use of Nuclear Weapons.548 He also proposes that the failure of the 2005 NPT review conference to produce a consensus outcome document prompted the second draft of the NWC (2007).549 Revisions were primarily drafted by ICAN550 and the NWC was submitted to the UNGA551 and was also noted in the outcome document of the preparatory meetings for 2010 NPT review conference.552

The drive to draft a complete and general disarmament treaty that provides for nuclear elimination could be found to emanate from both the initially positive 2000 review conference and the disappointingly inconclusive 2005 review conference. In 2000, NWS ‘gave an unequivocal undertaking to accomplish the total elimination of their arsenals’553 via agreement to 13 practical steps for disarmament,554 but the 2005 review conference failed to produce an outcome document. McCoy postulates that NWS

547 Ibid., 164. 548 I.C.J. Reports, Legality of the Threat or Use of Nuclear Weapons; Tim Wright, “Negotiations for A Nuclear Weapons Convention: Distant Dream or Present Possibility?” Melbourne Journal of International Law 10 (2009): 220. 549 Ibid., 221. 550 Organisations responsible for the 2007 draft: ICAN, formed by a merge of the International Association of Lawyers against Nuclear Arms (IALANA), International Network of Engineers and Scientists against Proliferation (INESAP), International Physicians for the Prevention of Nuclear War (IPPNW). 551 UNGA, “Letter dated 17 December,” UNGA A/62/650. 552 Preparatory Committee for the 2010 Review Conference of the Parties to the Treaty on the Non- Proliferation of Nuclear Weapons, Chairman’s Working Paper, 1st session, May 11, 2008, UN Doc NPT/CONF.2010/PC.I/WP.78; The Meeting of Parties in 2008 Chairman’s Working Paper, 2nd session, May 21, 2008, UN Doc NPT/CONF.2010/PC.II/WP.43. 553 Ronald McCoy, “The Case for a Nuclear Weapons Convention” in The Challenge of Abolishing Nuclear Weapons, ed. David Krieger (New Jersey: Transaction Publishers, 2009), 186. 554 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, NPT/CONF.2000/28 (Parts I and II).

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backtracked and reneged on their commitments, resulting in ‘mutually assured paralysis’, a term coined by Kofi Annan.555 The 2007 NWC draft might have been fostered by the report of the 2006 Weapons of Mass Destruction Commission (initiated by Sweden and chaired by Hans Blix) that recommended that nuclear weapons be outlawed. It stated:

A key challenge is to dispel perception that outlawing nuclear weapons is a utopian goal. A nuclear disarmament treaty is achievable and can be reached through careful, sensible and practical measures.556

Some six months later, 125 of 181 member states of the UNGA, including China, India and Pakistan, passed resolution 61/83, which called on all states to immediately commence ‘multi-lateral negotiations leading to an early conclusion of a nuclear weapons convention’.557

To promote engagement with the issue of nuclear elimination and to generate political will the UNGA has every year since 1996 passed a resolution calling on states to immediately fulfil the disarmament obligation articulated in the ICJ advisory opinion ‘by commencing multilateral negotiations leading to an early conclusion of a nuclear weapons convention’.558 This annual reminder and quinquennial calls to action at NPT review conferences could be regarded as the legal regime’s structural mechanisms that gave rise to the NWC.

A number of factors contributed to the negotiation of the NWC: reports, documents, speeches, decisions and resolutions. Individuals from International Physicians for the Prevention of Nuclear War (IPPNW), IALANA and INESAP, experts in science, law, negotiation and disarmament together sought to determine the feasibility of drafting a disarmament convention. By imagining themselves in the positions of governments, both possessing nuclear weapons and not, they held a year-long program of consultations and drafted a model treaty text to determine whether nuclear disarmament

555 Annan, Lecture at Princeton University, SG/SM/10767. 556 Weapons of Mass Destruction Commission, Weapons of Terror: Freeing the World of Nuclear, Biological and Chemical Arms, Final report of the Weapons of Mass Destruction Commission, June 1, 2006, 109. 557 UNGA Res A/RES/61/83, “Follow Up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons” December 6, 2006, para. 2. 558 UNGA, Res 51/45.

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by means of a multilateral agreement was even possible. They accounted for legal, political and technical requirements for a nuclear-free world while also considering potential security concerns.

Therefore, the CSC issue that gave rise to the NWC can be articulated in a variety of ways. One approach suggests that the end of the Cold War provided an opportunity to reconsider arms control governance. Another suggests that institutional dynamics propelled by treaty compliance obligations and the opportunity to review the operation of the NPT at review conferences prompted the drafting of the NWC. The ICJ advisory opinion on the legality of nuclear weapons and annual General Assembly resolutions were likely factors that invigorated engagement. A more literal approach places responsibility for the treaty with the motivations of the drafters themselves. It appears plausible to suggest that a series of international legal mandates combined with impatience over NWS inaction prompted the drafting of the NWC by civil society experts ‘to stimulate thinking and to demonstrate the feasibility of negotiating the comprehensive prohibition and elimination of nuclear arsenals’.559 The net result is that the NWC was drafted as a trial-run, to prove that a treaty to eliminate nuclear weapons could indeed be drafted. The TPNW then built on this foundation.

The Treaty on the Prohibition of Nuclear Weapons

After it became clear that NWS would not engage with the NWC, the TPNW or ‘Ban treaty’ began to gain momentum. By this stage the calls of international organisations for a nuclear elimination treaty were strong. NNWS were now aware that if progress was to be made, they would have to do the work; they could no longer wait for NWS to act.

The impetus for the negotiation of the ‘Ban treaty’ can be largely attributed to two separate conference processes. The first is the 2010 NPT review conference and the second is the Humanitarian Impact of Nuclear Weapons Conferences of 2013, 2014 and 2015. Together, these interstate meetings provided forums where states could build

559 IALANA, IHRC, Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons: Request for an Advisory Opinion from the International Court of Justice Legal Memorandum (Cambridge, MA: International Human Rights Clinic, Human Rights Program, Harvard Law School, 2009), 26, http://lcnp.org/disarmament/2009.05.ICJbooklet.pdf.

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shared understandings and generate consensus to the idea of banning nuclear weapons with a view to eliminating them.

The 2010 NPT review conference concluded successfully with consensus agreement to a final outcome document that included 64 actions, titled Conclusions and Recommendations for Follow-On Actions.560 They provide a ‘clear action plan on nuclear disarmament which includes concrete steps for the total elimination of nuclear weapons’.561 The two most important parts of this final document are the repeated calls for a comprehensive instrument to eliminate nuclear weapons.562 In particular, Action Three reads:

In implementing the unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals, the nuclear weapon States commit to undertake further efforts to reduce and ultimately eliminate all types of nuclear weapons, deployed and non-deployed, including through unilateral, bilateral, regional and multilateral measures.

Section B, paragraph iii more specifically refers to the need for either a single or a set of legal instruments. It reads:

The Conference calls on all nuclear-weapon States to undertake concrete disarmament efforts and affirms that all States need to make special efforts to establish the necessary framework to achieve and maintain a world without nuclear weapons. The Conference notes the five-point proposal for nuclear disarmament of the Secretary-General of the United Nations, which proposes, inter alia, consideration of negotiations on a nuclear weapons convention or agreement on a framework of separate mutually reinforcing instruments, backed by a strong system of verification.

The UN Secretary-General’s five-point proposal on nuclear disarmament directs states to consider negotiating a nuclear weapons convention and points to the NWC draft circulated at the request of Costa Rica and Malaysia as a potential point of departure.563 Further, UNGA resolution 71/258, which includes the decision to convene a conference

560 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, Volume I, NPT/CONF.2010/50 (Vol. I), 19–29, http://www.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2010/50%20(VOL.I). 561 Ibid, Section I B (iii), 19. 562 Ibid., Sections I, I A (ii), I A (vi), Action 1, I B (ii), Action 3, Action 6, and I C (i). These all refer to the goal of elimination of nuclear weapons. 563 UNODA, “The Secretary-General’s five point proposal on nuclear disarmament,” point one, https://www.un.org/disarmament/wmd/nuclear/sg5point/.

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in 2017 to ‘negotiate a legally binding instrument to prohibit nuclear weapons, leading to their total elimination’, also recalled the 2010 review conference as a contributing factor.564 In ascertaining what led to the decision to convene a conference to negotiate the TPNW, it is somewhat difficult to isolate any one event or report; the incremental decisions, reports and resolutions might be best considered a cumulative amalgam. However, it is fair to argue that the success of the 2010 NPT review conference reinvigorated NNWS and motivated them to negotiate the TPNW.

In a separate yet related process, a series of conferences was convened to examine and discuss the humanitarian consequences of nuclear weapons. These conferences best explain how consensus to the foundation ideology for the TPNW was reached. The momentum that was generated by agreement to a final outcome document at the 2010 NPT review conference may best explain how the conceptual link between an individuals’ right to life and nuclear weapons became accepted. As we interpret the CSC issue and decide what gave rise to the TPNW, it is clear that two persuasive ideas were prominent: no single state could ensure the safety and security of its citizens were a nuclear weapon to be detonated and a ‘ban’ instrument is necessary to delegitimise nuclear weapons eventually leading to nuclear elimination. Consensus agreement to these ideas led to a historic vote in the UN First Committee when 123 states resolved to convene a conference to negotiate a ‘Ban treaty’.565 In international legal positivist terms it was this resolution that gave rise to the TPNW.

If we account for the political context to understand what gave rise to the TPNW, then more credit must be given to the emergence of the foundation ideology through conferences that facilitated discussion of the real effects and consequences of nuclear detonation. This reframed the disarmament discourse.566 A ban on nuclear weapons would, in accordance with international humanitarian law, stigmatise and accelerate

564 UNGA, Res 71/258., para. 8. 565 UNGA, Res L.41, October 27, 2016, http://www.icanw.org/campaign-news/results/. Votes: 123 for, 38 against, 16 abstaining. 566 Kumar, A. Vinod, “2017 Conference to Outlaw Nuclear Weapons: Time Ripe for a Stand-Alone Disarmament Instrument,” Institute for Defence Studies and Analysis (November 4, 2016), https://idsa.in/issuebrief/2017-conference-to-outlaw-nuclear-weapons_avkumar_041116.

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elimination.567 How these ideas gained momentum will be explained in the Foundation Ideology section later in this chapter. To this point the CSC issue for the TPNW and the NWC is: how can all states, regardless of their outlier, nuclear or non-nuclear weapons state status, multilaterally ban and eliminate nuclear weapons?

By giving prominence to institutional process, this interpretation belies the narrative that appears most compelling thus far—that of legal mandate and how to honour the disarmament obligations of the NPT. This recalls the old modus operandi to coerce NWS to comply with Article VI. Although a comprehensive approach emerged in this post-1995 era, NNWS parties favoured alternative solutions. In the original NPT treaty, the NWS ‘won’ and now the NNWS promote a different ideology to justify the solution they had always preferred: the complete elimination of nuclear weapons.

This section interrogated when the obligation to negotiate a disarmament instrument was recalled. This call to action placed pressure on states and this arguably led to the drafting of the NWC, which was put to state parties to the NPT and also to all members of the UNGA. When it became clear that the NWC would languish and be shelved, another set of ideas was promoted through an alternative conference process. The question of how all states could work cooperatively and multilaterally to ban and eventually eliminate nuclear weapons led to conferences on the humanitarian consequences of nuclear weapons, which led to the negotiation of the TPNW. The next CSC component to be interpreted relates to which actors participated or chose not to participate in the TPNW negotiation process.

Community of Interest

In CSC theory terms, a CSC must exist before consensus towards a foundation ideology can be reached.568 Three or more states must agree to work towards managing an issue and seek a solution to manage the issue of mutual concern that originally gave rise to the CSC. First, we will determine who participated in the drafting process of the NWC before examining the TPNW. Both were negotiated under the auspices of the UNGA

567 Rebecca Johnson, “UN Talks to Ban Nuclear Weapons: What Can They Achieve?” Open Democracy (April 17, 2017), https://www.opendemocracy.net/5050/rebecca-johnson/un-talks- nuclear-weapons-what-can-they-achieve. 568 Scott, The Political Interpretation of Multilateral Treaties, 15.

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and the First Committee. Considering the community of interest in relation to integration and harmonisation between original and subsequent treaties, two questions guide interpretation for this component: must those states that were part of the community of interest for the NPT be part of the community of interest for the NWC and TPNW and to what degree are integration and harmonisation affected if the participant states in the subsequent treaty negotiation process are different from those that negotiated the original treaty?

A community of interest can be identified as participants in common pursuit of a ‘legitimation goal and their interaction regarding the issue of mutual concern on the basis of a common foundation ideology’.569 The networks responsible for the NWC were mandated by a majority of states in the General Assembly; however, those states were not all members of the community of interest that negotiated the original treaty. For the NWC, states handed responsibility over to networks of experts. The nuanced distinction between a community of interest and an epistemic community could be explored,570 as well as the concept of political will as applicable to both. Treaties are usually negotiated by experts, but those experts represent states that are political parties to the treaty. In this case, the experts working for NGOs may have been US, UK or French citizens but they did not represent the interests of their respective states. Rather, they represented those of NNWS who had resolved to commission the drafting process.

As defined by Haas, the epistemic community is ‘a network of professionals with recognised expertise and competence in a particular domain and an authoritative claim to policy relevant knowledge within that domain or issue-area’.571 This, and the community of interest both describe the actors who are actively contributing to, and invested in, the development and progression of the treaty that will manage the issue of mutual concern. In this case, members of the community of interest were also not direct representatives of states.

569 Ibid. 570 Peter Haas, “Epistemic Communities and International Policy Coordination,” International Organization 46, no. 1 (1992): 3. 571 Ibid., 3, footnote 4. Haas stresses that the term does not solely refer to scientific or technical knowledge but, rather, resembles Fleck’s notions of a ‘thought collective’ and that shared belief or faith is what bonds members of an epistemic community together.

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The Nuclear Weapons Convention

The NWC (1997) was drafted as a joint initiative of three organisations: IALANA, INESAP and IPPNW. By 2007, when the second draft was submitted to the UNGA, the establishment of a new organisation, ICAN, evolved from a merger of these three organisations. Although the original three continue to do valuable work, individuals compelled to action now work through ICAN, ‘a coalition of NGOs in one hundred countries’.572 A consistent majority of states of the General Assembly combined with the influence of respected current and former leaders and coalitions of NGOs in the field endorsed the NWC as an important starting point with which state parties can eventually engage.573

Although responsible for the drafting of the convention, civil society organisations, handed over to motivated states. In 1997, Costa Rica, a state with no defence force and a commitment to both disarmament and international law, asked that the UN Secretary- General distribute the NWC to all member states.574 A decade later, Costa Rica, joined by Malaysia, again requested that the Secretary-General circulate an updated version of the convention.575 Both countries also submitted working papers to the 2000 and 2005 NPT review conferences calling for multilateral negotiations leading to the conclusion of a nuclear weapons convention.576 In conjunction with UNGA circulation of the draft,

572 The ‘International Campaign to Abolish Nuclear Weapons’ describe themselves as a global grassroots movement for disarmament through a legally binding, verifiable and time-bound Nuclear Weapons Convention,’ http://www.icanw.org. 573 See: UNGA, General and Complete Disarmament, A/C.1/52/7, 20, 21. Global Support for a Nuclear Weapons Convention; Nuclear Threat Initiative, “Proposed Nuclear Weapons Convention (NWC),” http://www.nti.org/treaties-and-regimes/proposed-nuclear-weapons-convention-nwc/; “Campaign for Nuclear Disarmament,” http://www.cnduk.org/campaigns/global-abolition/nuclear- weapons-convention; “International Campaign to Abolish Nuclear Weapons,” http://www.icanw.org/why-a-ban/the-case-for-a-ban-treaty/. 574 UNGA, General and Complete Disarmament, A/C.1/52/7. 575 UNGA, “Letter dated 17 December,” UNGA A/62/650. 576 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Follow-up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons. Working paper submitted by Malaysia and Costa Rica,” Subsidiary Body 1 of Main Committee 1, NPT/CONF.2000/MC.I/SB.1/WP.4; 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, “Follow-up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons. Legal, technical and political elements required for the establishment and maintenance of a nuclear weapon-free world: Working paper submitted by Malaysia, Costa Rica, Bolivia, Democratic Republic of Timor-Leste, Nicaragua and Yemen,” (May 18, 2005) NPT/CONF.2005/WP.41.

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in 2007, Costa Rica submitted the updated convention to the Preparatory Committee for the 2010 NPT review conference.577 Since 1996, the drafting of a comprehensive convention to eliminate nuclear weapons has been widely supported by the majority of member states of the General Assembly,578 via an annual resolution to follow up on the advisory opinion of the ICJ.579 To this end, the community of interest comprised the drafters, civil society organisations (initially IALANA, INESAP and IPPNW, now under the banner of ICAN) and also NNWS lobbyists, particularly Costa Rica and Malaysia who led the process by nominating submissions to relevant international forums.

The Treaty on the Prohibition of Nuclear Weapons

The community of interest of the TPNW is similar to that of the NWC. The main difference is that more states publicly supported the call for a ‘Ban treaty’ after 2010 when Switzerland, with the help of the International Red Cross, inserted a reference to the humanitarian cause in the final outcome document of the NPT review conference. The community of interest now include states that endorsed the Austrian/Humanitarian Pledge that emerged from the Humanitarian Consequences of Nuclear Weapons conference and those that actively participated in the negotiation of the treaty text. The work of ICAN cannot be underplayed. Even though they passed the baton to states to negotiate the text, their role as advocates and information service providers has been seminal.

577 Preparatory Committee for the 2010 Review Conference of the Parties to the Treaty on the Non- Proliferation of Nuclear Weapons, “Model Nuclear Weapons Convention: Working Paper submitted by Costa Rica,” (May 1, 2007) NPT/ CONF.2010/PC.I/WP.17 578 Tim Wright for ICAN, “Towards a Treaty Banning Nuclear Weapons: A Guide to Government Positions on a Nuclear Weapons Convention,” January 2012, http://www.icanw.org/positions. 579 UNGA Resolution, Follow-up to the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, 71st session, A/RES/71/58 (December 13, 2016) “Recalling its resolutions 49/75 K of December 15, 1994, 51/45 M of December 10, 1996; 52/38 O of December 9, 1997; 53/77 W of December 4, 1998; 54/54 Q of December 1, 1999, 55/33 X of November 20, 2000; 56/24 S of November 29, 2001; 57/85 of November 22, 2002; 58/46 of December 8, 2003; 59/83 of December 3, 2004; 60/76 of December 8, 2005; 61/83 of December 6, 2006; 62/39 of December 5, 2007; 63/49 of December 2, 2008; 64/55 of December 2, 2009; 65/76 of December 8, 2010; 66/46 of December 2, 2011, 67/33 of December 3, 2012, 68/42 of December 5, 2013, 69/43 of December 2, 2014, 70/56 of December 7, 2015.”

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The TPNW opened for signature on 20 September 2017 and will enter into force 90 days after the 50th instrument of ratification is deposited with the Secretary-General.580 As of June 2018, all 58 signatory states are NNWS;581 none are NATO member states and none are under the umbrella of extended deterrence.582 Of the four European states, Austria and Ireland are neutral NATO allies that participate in Partnership for Peace programs while Liechtenstein and the Holy See only have a combined population of 38,000. State singatories with large populations (over 100 million) are Brazil, Indonesia, Mexico, Nigeria and the Philippines. Five states have populations under 50,000, nine have populations under 1 million and 17 have populations under 10 million. This means that more than half of the 58 state parties represent only a relatively small percentage of the global population. Whether this aspect is relevant and how it might be used by detractors remains to be seen. Debates about participation in the TPNW are likely to feature at the next NPT review conference in 2020.

From this brief survey of signatory states to the TPNW it is clear that the treaty is primarily supported by state parties of nuclear-weapons-free zone (NWFZ) treaties. As previously mentioned, these NWFZ treaties are successful because they relate to parts of the globe where there are no nuclear weapons. Similarly, the states that have signed up to the ‘Ban treaty’ have no obligations to fulfil. For states that either possess nuclear weapons, station nuclear weapons on their territory or derive a security benefit from an

580 TPNW, Article 15 (1). 581 As at May 30, 2018, the 58 state signatories to the TPNW are (population size in brackets): Algeria (40.6m) , Austria (8.7m), Bangladesh (163m), Bolivia (10.9m), (Brazil (207.7m), Cabo Verde (539,500), Central African Republic (4.59m), Chile (17.91m), Comoros (795,600), Congo (78.7m), Costa Rica (4.8m), Cote d’Ivoire (23.7m), Cuba (11.4m), DRC (Congo) (78.7m), Ecuador (16.3m), El Salvador (6.3m), Fiji (898,700), Gambia (2m), Ghana (28.2m), Guatemala (2.9m), Guyana (773,300), Holy See (450), Honduras (9.1m), Indonesia (261.1m), Ireland (4.7m), Jamaica (2.88m), Kazakhstan (17.8m), Kiribati (115,000), Laos (6.7m), Libya (6.2m), Liechtenstein (37,600), Madagascar (24.8m), Malawi (18m), Malaysia (31.1m), Mexico (127.5m), Namibia (2.5m),Nepal (28.9m), New Zealand (4.7m), Nicaragua (6.1m), Nigeria (186m), Palau (21,500), Palestine (4.5m), Panama (4m), Paraguay (6.7m), Peru (31.7m), Philippines (103.3m), Samoa (195,000), San Marino (33,200), Sao Tome and Principe (199,900), South Africa (55.9m), St Vincent and the Grenadines (110,000), Thailand (68.8m), Togo (7.6m), Tuvalu (11,000), Uruguay (3.4m), Vanuatu (270,400), Venezuela (31.5m), Vietnam (92.7m). The 10 parties to have ratified are Austria, Cuba, Guyana, Holy See, Mexico, Palau, Palestine, Thailand, Venezuela and Vietnam. 582 Heinz Gärtner, “The Ban on Nuclear Weapons – Austria’s Perspective - and a Compromise,” International Institute for Peace, (July 21, 2017), https://www.iipvienna.com/new- blog/2017/7/21/the-ban-on-nuclear-weapons-austrias-perspective-and-a-compromise. According to Heinz Gärtner, the umbrella of extended deterrence is the promise to use weapons.

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extended nuclear deterrence umbrella, the decision to sign the TPNW presents significantly more obstacles.583

For both the NWC and TPNW, the community of interest includes NNWS parties that are bolstered by civil society organisations, with the former responsible for political progress and the latter, substantive or technical progress via their expertise. The significance of the members of the community of interest and the delineation between participants that do or do not engage with the NWC and TPNW suggests that it is more likely that a subsequent treaty integrates and harmonises where the community of interest is similar to that of the original treaty. Without NWS engagement, the NWC has languished and it remains to be seen when or whether the TPNW will enter into force.

In Relation to the NPT

In Chapter Two, the community of interest of the NPT was identified. These states are united by pursuit of a common legitimation goal and they agree to a principle that will underpin an agreement to manage an issue of mutual concern.584 The US, USSR and members of the ENDC were identified as members of the NPT community of interest.585 For the TPNW, we have identified the community of interest by considering which states participated in the Humanitarian Conferences and the civil society organisations that provided assistance. ICAN identifies, based on official records, 135 states that were actively involved in the negotiation of the ‘Ban treaty’.586

When we compare the groups of states that actively negotiated the NPT and TPNW, we find only three states common to both communities of interest. These are Mexico,

583 See: International Law and Policy Institute, “Nuclear Umbrellas and Umbrella States,” ILPI Weapons of Mass Destruction Project, http://nwp.ilpi.org/?p=1221. Formal arrangements exist between the US and NATO member states and the US and South Korea. Informal arrangements exist between the US and Australia and the US and Japan and between Russia and Collective Security Treaty Organization (CSTO). Nuclear umbrellas must be mutually accepted; Argentina, Syria, Egypt and the Philippines may be allied to nuclear armed states but are not considered umbrella states. 584 Scott, The Political Interpretation of Multilateral Treaties, 15. 585 The Eighteen Nation Disarmament Commission includes the original 10 members (USA, USSR, UK, Italy, Canada, France, Bulgaria, Czechoslovakia, Poland and Romania) and Sweden, Mexico, India, Brazil, Burma, Ethiopia, Nigeria and United Arab Republic (Egypt only during NPT negotiations; was Syria and Egypt from 1/2/1958 to 28/9/1961). 586 ICAN, “Positions on the treaty,” http://www/icanw.org/why-a-ban/positions/. Accessed May 30, 2018.

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Brazil and Nigeria, who co-sponsored UNGA resolution L.41, which mandated the conference to negotiate the ‘Ban treaty’.587 That these three states were part of the group that negotiated the original treaty has not yet attracted attention but may well do so in the future.

At this stage, it is the conspicuous lack of NWS and outlier state engagement that is of interest. This suggests that if the community of interest for the subsequent treaty lacks members from the original treaty, then it is less likely that the legitimation goal will be shared. Since the subsequent treaty’s community of interest bears little or no resemblance to that of the original, it is doubtful that the TPNW can harmonise with the NPT. Rather, it is more likely that the TPNW will be considered another challenge to the NPT, one that does not align with the real-world power structure but nevertheless potentially weakens its authority.

CSC components are related and so are best identified in conjunction with each other. For example, the community of interest will pursue a common legitimation goal. Once this is identified, the link and implications of the disconnection between the communities of interest of the TPNW and NPT should become more apparent.

Legitimation Goal

The legitimation goal ‘is the political goal common to the negotiating states, the pursuit of which gave rise to the perceived need for the regime’.588 Scott suggests that an attempt to interpret the legitimation goal for a specific treaty would do well to incorporate a realist approach.589 One must seek to uncover a state’s self-interest. ‘Here we are looking for a goal common to the negotiating states on which the treaty placed some constraints but having done so, was likely to actually facilitate its pursuit’.590 General consideration of why states cooperate and what states gain from cooperation in multilateral treaty regimes will also prove pivotal. Management of an issue of mutual concern is most often the fundamental goal, although some states also aim to maximise

587 UNGA, Taking Forward Multilateral Negotiations, 71st session, agenda item 89, October 14, 2016, A/C.1/71/L.41. This resolution was co-sponsored by 34 states. 588 Scott, The Political Interpretation of Multilateral Treaties, 113. 589 Ibid., 590 Ibid.,

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their positions within the organisation responsible for the treaty administration. This can be done through a variety of means: by management of the agenda, by nominating for positions of influence or by creating obstacles to working processes, for example. A myriad of ways exists by which states may influence negotiations.

A prohibition treaty is a somewhat unusual case study for CSC theory application. The theory has not yet been applied in a detailed manner to a treaty that outlaws or prohibits a specific weapon such as landmines and chemical or biological weapons.591 The TPNW community of interest consists primarily of NNWS and they appear to share the common goal of wanting the nuclear weapons that NWS possess to be eliminated. Therefore, the legitimation goal might be to pressure NWS and replace the NPT in the long term. The overtly stated goal is to eliminate nuclear weapons but the division between nuclear haves and have-nots will also disappear if this is achieved. If the community of interest’s legitimation goal is to stop other states from pursuing a goal that they, as nuclear have-nots simply cannot pursue, might their legitimation goal be to ensure that no loopholes that could permit of derivation be possible? If the subsequent treaty’s legitimation goal is to supplant and dismantle the original treaty, no commonality is expected between the communities of interest.

At present, the five NWS have not agreed to engage with the drafting of the NWC nor have they participated in the negotiation process of the TPNW. The US has voiced clear opposition to a comprehensive approach to nuclear disarmament.592 ‘There have been

591 CSC Theory has been applied to: the 1959 Antarctic Treaty, the 1946 International Convention for the Regulation of Whaling, the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, and the 1982 United Nations Framework Convention on Climate Change. 592 Micahel Aho, “Remarks by Mr Michael Aho, US Representative to the UN Disarmament Commission during the Open Plenary Session,” New York, April 7, 2014: ‘Disarmament will not be achieved in a single negotiation or by setting artificial deadlines as some propose with a nuclear weapons convention’. Rose Gottemoeller, “Remarks by Delegation of the USA to the First Committee of the United Nations General Assembly,” New York, October 5, 2010: ‘This calls for a pragmatic step-by-step approach rather than the impractical leap of seeking to negotiate a nuclear weapons convention’. Anita Friedt, “United Nations General Assembly High Level Meeting on Nuclear Disarmament. Remarks by Principal Deputy Assistant Secretary Anita Friedt,” September 26, 2013: ‘This step-by- step approach is the most productive and effective path to a world without nuclear weapons’.

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no intergovernmental negotiations or deliberations in any official forums’593 even though the majority of states have consistently voted in support of the convention and advocated working towards complete and general disarmament.594 It is notable that NWS have not sought to engage with either treaty.595 While the excitement of finally concluding a disarmament treaty subsequent to the NPT is still relatively fresh, it is perhaps too early to discern the consequences of their non-participation. Again, the implications of this are unlikely to be evident until the 2020 NPT review conference.

Is it premature to seek clarification of the legitimation goal when certain states that represent the existing power structure of the legal regime refuse to engage with either subsequent treaty? If we proceed to interpret the legitimation goal for the TPNW based on the community of interest (which we have already established differs markedly from that of the NPT), we will in effect be clarifying the lack of political harmonisation between the original and subsequent treaties. For the NWC and TPNW, the fact that the community of interest differs from that of the NPT makes it virtually certain that the legitimation goals of the original and subsequent treaties will not align.

593 Gareth Evans & Ramesh Thakur (eds.), Nuclear Weapons: The State of Play (Canberra: Centre for Nuclear Non-Proliferation and Disarmament, 2013), 8: ‘Nuclear armed states are not ready to negotiate a nuclear weapons convention and believe that, without them, negotiations would be meaningless. An annual resolution calling for the negotiation of such a convention is nonetheless supported by some two-thirds of the UN membership’. 594 UNGA voting pattern on follow-up resolution to ICJ Advisory Opinion (affirmative–against– abstention): 2013, 133–24–25; 2012, 135–22–26; 2011, 130–26–23; 2010, 133–28–23; 2009, 124– 31–21. 595 See NWS statements: “UK Statement on Treaty Prohibiting Nuclear Weapons,” (July, 8 2017) https://www.gov.uk/government/news/uk-statement-on-treaty-prohibiting-nuclear-weapons; Ambassador Robert Wood, “Remarks at the 71st Session of the General Assembly First Committee Thematic Discussion on Nuclear Weapons,” US Permanent representative to the Conference on Disarmament (Oct. 18, 2016) https://geneva.usmission.gov/2016/10/18/ambassador-wood-remarks- at-u-n-general-assembly-first-committee-thematic-discussion-on-nuclear-weapons/ ; “Director of the Foreign Ministry Department for Non-Proliferation and Arms Control Mikhail Ulyanov’s interview with the newspaper Kommersant,” (Sept. 13, 2017) http://www.mid.ru/en/web/guest/vistupleniya_rukovodstva_mid/- /asset_publisher/MCZ7HQuMdqBY/content/id/2862117 ; France Diplomatie, “Adoption of a Treaty banning Nuclear Weapons, (New York, 7 July 2017),” (July, 7 2017) https://www.diplomatie.gouv.fr/en/french-foreign-policy/united-nations/events/events- 2017/article/adoption-of-a-treaty-banning-nuclear-weapons-07-07-17 ; “Foreign Ministry Spokesperson Hua Chunying’s regular press Conference on March 20,” (March 20, 2017) http://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1447146.shtml; “Joint Statement from the Permanent Representatives to the United Nations of the United States, United Kingdom, and France Following the Adoption of a Treaty Banning Nuclear Weapons,” (July, 7 2017) https://usun.state.gov/remarks/7892

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Interpretation of the legitimation goal brings the influence of the power structure to the fore. How does the legitimation goal of the community of interest, in this case, NNWS supported by NGOs, challenge the CSC that emerged during the negotiation phase of the original treaty? The goal of some 130 states is at odds with the underlying goal of NWS, given that the legitimation goal of the NPT is ‘to have better weapons than one’s potential adversary’.596

To reconcile the fact that many of the states involved in the negotiation process also derive a security benefit from nuclear weapons,597 perhaps the original treaty’s legitimation goal need be reconsidered. It might be revised to ‘either have better weapons, or enjoy a security benefit because of an alliance with those that have better weapons, than one’s potential adversary’. This may reflect the changing nature of the regime’s power structure as it accounts for the interests of those states that might advocate for nuclear elimination while enjoying the benefits of a nuclear umbrella. Sauer suggests that a reckoning must occur at some point.598 Will states that were straddling the fence be required to choose whether to forfeit the benefit that nuclear weapons afford or abandon disarmament treaty efforts?

In Relation to the Communities of Interest of the Subsequent and Original Treaties

Actions speak louder than words. While 130 states supported the Humanitarian Pledge and voted to convene a conference to negotiate the ‘Ban treaty’, as of June 2018 there are only 58 state signatories to the TPNW and the vast majority of those states receive no nuclear-related security benefit from NWS.599 Since the TPNW opened for signature, the only states to have signed on that are either formally or informally under the nuclear umbrella are Austria, Ireland, Holy See, Liechtenstein and Kazakhstan. All other umbrella states chose not to participate in TPNW negotiations and either abstained or

596 Scott, The Political Interpretation of Multilateral Treaties, 164. 597 ILPI, “Nuclear Umbrellas and Umbrella States,” US weapons are deployed in Belgium, Germany, Italy, The Netherlands and Turkey. Withdrawn from Greece in 2001 and withdrawn from Japan and South Korea in 1991. 598 See: Tom Sauer, “How Will NATO’s Non-Nuclear Members Handle the UN’s Ban on Nuclear Weapons?” Bulletin of the Atomic Scientists 73, no. 3 (2017): 180; Eide Lothe Stein-Ivar, “A Ban on Nuclear Weapons: What’s in it for NATO?” ILPI Policy Paper 5 (January 2014): 9- 10. 599 5 states from a total of 58. An exception in Asia is the Philippines. In Europe, Ireland, Austria, Liechtenstein and Holy See would be protected by surrounding NATO member states by default.

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voted against the ‘UN resolution of 2016 that established the mandate for nations to negotiate the treaty’.600

The legitimation goal may not be a masked goal. The community of interest for the ‘Ban treaty’ transparently seek to create a normative taboo against the possession and use of nuclear weapons. On the face of it, there appears to be no ulterior motive; the goal is to negotiate an instrument that eliminates nuclear weapons. However, might a veiled goal be to weaken or even dismantle the existing nuclear arms control regime? Could the community of interest be united by disdain for the slow, decades-long progress of disarmament under the NPT? As a voting bloc, might they now seek to upset the established order perpetuated by the original treaty? Following this logic, the TPNW may have emerged in response to the exasperation and disappointment that NNWS felt about NWS inaction and the failure to bring outlier states into the fold.601 It is also possible that members of the community of interest are unaware of the effects that an in-force ‘Ban treaty’ could have? Perhaps that their intention is to reinforce the NPT but over time, the ‘Ban treaty’ might inadvertently undermine it.

To the community of interest of the NPT, the notion that another class of weapons that is less inhumane or maximally destructive may replace nuclear weapons is not new; however, the destabilising effects are worrying.602 The US Nuclear Posture Review of 2010 suggested that the development of a vastly superior conventional arsenal could permit significant reductions of nuclear weapons.603 Gormley claims that the review speaks of the link between conventional military advantage and reduced reliance on nuclear weapons in somewhat moot terms.604 However, this is a long-term strategy that has been largely overshadowed by the more recent Nuclear Posture Review of 2018,

600 ICAN, “Positions on the treaty,” http://www.icanw.org/why-a-ban/positions/. 601 Universalisation of the NPT, in particular the failure to bring India, Pakistan, Israel and North Korea into regime, is discussed at NPT review conferences.. 602 See: Andrew Futter and Benjamin Zala, “A Sustainable Approach to Nuclear Zero: Breaking the Nuclear Conventional Link,” Oxford Research Group, October 25, 2013, http://www.oxfordresearchgroup.org.uk/publications/briefing_papers_and_reports/sustainable_appro ach_nuclear_zero_breaking_nuclear_conventi; Andrew Futter and Benjamin Zala, “Advanced US Conventional Weapons and Nuclear Disarmament,” The Nonproliferation Review 20, no. 1 (2013): 107–122. 603 US Department of Defense, “Nuclear Posture Review Report,” April 2010, 604 Dennis Gormley, “Nuclear Disarmament and Russian Perceptions of US Conventional Superiority,” Security Challenges 6, no.4 (2010): 83–101.

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which discusses the need to modernise and upgrade nuclear facilities and technologies.605 The idea that powerful states seek to retain superiority is a pertinent force compelling action in this context. NWS not only aim to maintain weapons superiority, but also seek to preserve the advantage afforded them by the original treaty. They will counter any threat to the legitimacy of the original treaty and their refusal to engage with the subsequent NWC and TPNW treaties is likely evidence of this.

The disconnection between the community of interest for the subsequent treaty and the power structure confirmed by the original treaty best explains why a legitimation goal for the TPNW is not easily discerned. As the situation currently stands, the US will not engage with the comprehensive treaty and prefers to advocate for a piecemeal approach to disarmament by encouraging a series of discrete conventions.606 The foundation ideology of the NWC and TPNW will be collectively interpreted in the next section, where it will be assessed for whether it augments that of the NPT.

Foundation Ideology

It may be prudent to recall the ILC’s edict on treaty interpretation—that it is more an art than a science.607 The first report,608 clarifies that the draft conclusions and guidelines on treaty interpretation are not intended to ‘provide a straitjacket for the interpreters, nor would they leave them in a void’.609Although it is deduced from legal text and political context, the CSC interpretive process is subjective – albeit that some interpretations are more convincing applications of the theory than others. For state parties to mediate their interests to negotiate an agreement, the foundation ideology of a subsequent treaty must incorporate an ‘agreed principle or small set of interrelated principles. This principle or

605 US Department of Defense, “Nuclear Posture Review” February 2018: 14, 65, 80. 606 Rose Gottemoeller, “Remarks by USA Delegation”. The piecemeal approach is endorsed succinctly by eminent scholar Jozef Goldblat in Arms Control: The New Guide to Negotiations and Agreements (London: Sage Publications, 2002), 132–134; Orli Zahava, “Resistance to the Emergent Norm to Advance Progress Towards the Complete Elimination of Nuclear Weapons,” in A. Bloomfield & S.V. Scott eds. Norm Antipreneurs and Politics of Resistance to Global Normative Change London: Routledge (2017): 67. 607 International Law Commission Yearbook, Vol. 2, (1966): 218. 608 International Law Commission, First Report on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation, 65th session, March 19, 2013, A/CN.4/660. 609 UNGA, Report of the International Law Commission, 60th session, May 5 – June 6 and July 7 – August 8, 2008, A/63/10, annex A, para. 22. Cited in Nolte, First ILC Report, A/CN.4/660, para. 6, 5.

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small set of principles will serve as the basis that constrains state pursuit of individual interests and serves the common good’.610 The foundation ideology will justify the solution to provide a basis for cooperation.

For a subsequent treaty to successfully integrate with its predecessor, the foundation ideology must maintain or augment that of the original treaty in the sense of assuming its constituent principles to be true, primarily because of the centrality of the foundation ideology to the power structure. This is the first tenet of CSC theory regarding original and subsequent treaty integration. Thus, this section will first interpret the foundation ideology and then assess whether that of the original treaty is maintained, augmented or weakened.

Interpretation of the foundation ideology requires discovery of the principle that unifies state parties and was an accepted basis on which to mediate the issue of mutual concern.611 This is generally alluded to in the preamble of the treaty and therefore, the treaty text should be consulted first. It is also worth remembering that acceptance of a foundation ideology in an original treaty will either establish or reinforce an existing structure of power. Scott maintains that the foundation ideology ‘upholds an order of power through blocking evidence of that power structure, presenting all members of the political structure as equally placed’.612 In a subsequent treaty, the foundation ideology will ideally reinforce the original power structure if the regime is to remain strong and durable.

Scott speaks of all other CSC elements as depending logically on the foundation ideology—as a pyramid with the foundation ideology at its base.613 Two CSC units of analysis logically follow from the foundation ideology when applied to an issue of mutual concern; these are the CSC myth and CSC solution. To identify the foundation ideology, Scott suggests one read documents leading up to and including treaty negotiations and ascertain what is likely a ‘given’ in the arguments of those negotiating

610 Scott, “Does the UNFCCC Fulfil the Functions Required of a Framework Convention?” 10–11. 611 Scott, The Political Interpretation of Multilateral Treaties, 15, 16, 115. 612 Scott, “International Law as Ideology,” 318. 613 Scott, The Political Interpretation of Multilateral Treaties, 115.

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the treaty because the foundation ideology was likely to have been implicitly accepted as a basis for negotiation.614

Prohibition to Provide Security

A principle for which broad consensus agreement does appear to exist is that careful reduction of nuclear armaments contributes to international security; nuclear disarmament increases international security.615 The potential devastation and destruction that detonation of a nuclear weapon may cause is, by deduction, the reason nuclear weapons make the world less secure. Arguments exist to suggest that nuclear armaments ‘keep the peace’,616 though a more broadly accepted view is that damage resulting from either an accidental or purposeful detonation of a nuclear weapon must be avoided at all costs. These perspectives are neither mutually exclusive nor mutually dependent. Possession of nuclear weapons by a limited number of states has been tolerated whereas the actual use of a nuclear weapon is viewed as irrational and taboo.617 The elimination of nuclear weapons from the international system is arguably a desired outcome, repeatedly called for by academics and politicians alike to safeguard

614 Ibid. 615 This is a mainstream view held by advocates of disarmament. See for example: Scott D. Sagan from Scott D. Sagan and Kenneth N. Waltz, The Spread of Nuclear Weapons: A Debate Renewed (New York: W. W. Norton & Company, 2002); “Report of The Canberra Commission on the Elimination of Nuclear Weapons,” August 13, 1996, 18, http://dfat.gov.au/about- us/publications/international-relations/Documents/the-canberra-commission-on-the-elimination-of- nuclear-weapons.pdf; Theon Te Koeti, Nuclear Disarmament and International Security: Imperatives for the Global Community (Ottawa: United Nations Association in Canada, 2010), 19; Jonathan Granoff, “A Call for Conscience: Nuclear Disarmament,” Presentation delivered to the 7th World Summit of Nobel Peace Laureates, Global Security Institute, (November 17, 2006) see: Fact Sheet: The Nobel Laureates and the Crisis of Nuclear Weapons. 616 Kenneth N. Waltz is best known for this point of view. See: Kenneth N. Waltz, “The Spread of Nuclear Weapons: More May be Better,” Adelphi Paper 171 (London: International Institute of Strategic Studies, 1981); Kenneth N. Waltz, “Why Iran Should Get the Bomb: Nuclear Balancing Would Mean Stability,” Foreign Affairs, July 2, 2012, https://www.foreignaffairs.com/articles/iran/2012-06-15/why-iran-should-get-bomb. 617 For the debate on non-use of nuclear weapons vs. nuclear taboo see: T.V. Paul, The Tradition of Non-Use of Nuclear Weapons (Redwood City: Stanford University Press, 2009). Chapters 1-2; T.V. Paul, “Taboo or Tradition? The Non-Use of Nuclear Weapons in World Politics,” Review of International Studies 36, no. 4 (2010): 856- 860; Nina Tannenwald, “The Nuclear Taboo: The United States and the Normative Basis of Nuclear Non-Use,” International Organization 53, no. 3 (1999): 434

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humanity from annihilation.618 The nuclear bomb is the sole invention of the twentieth century capable of destroying civilisation.619

The preamble of the NWC contains the following statements that support this principle:

Convinced that the existence of nuclear weapons poses a threat to all humanity and that their use would have catastrophic consequences for all the creatures of this Earth;

Aware that amongst weapons of mass destruction, the abolition of which is recognized as being in the collective security interest of all people and States, nuclear weapons are unprecedented and unequalled in destructive potential.620

The TPNW also references security levels and interests:

Acknowledging the ethical imperatives for nuclear disarmament and the urgency of achieving and maintaining a nuclear-weapon-free world, which is a global public good of the highest order, serving both national and collective security interests.621

Mindful of the risks posed by the continued existence of nuclear weapons, including from any nuclear-weapon detonation by accident, miscalculation or design, and emphasizing that these risks concern the security of all humanity, and that all States share the responsibility to prevent any use of nuclear weapons.622

These preambular paragraphs indicate that the community of interest is unified in believing that nuclear weapons increase security dangers and that elimination of nuclear weapons would, therefore, reduce security dangers. It is on this basis that they continue to act to outlaw and eventually eliminate nuclear weapons.

618 Advocates for disarmament include, but are not limited to: Jonathan Schell, “The Abolition,” Washington Quarterly, 20, no.3 (January 2010): 143-151; Ray Acheson, Kofi Annan, John Borrie, Tad Daley, George Perkovich, Tim Wright. See also: footnote 601. 619 Robert S. McNamara, “Blundering Into Disaster: The First Century of the Nuclear Age,” The Brookings Review 5, no. 2 (1987): 3. 620 NWC, Preamble, paras. 1 and 3. 621 TPNW, Preamble, para. 5. 622 Ibid., para. 6.

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Impetus to Act: Timeliness

Consensus agreement to the notion that nuclear weapons reduce international security may be one aspect of the set of underlying principles that form a basis for management of the issue of mutual concern. There is now also unanimous agreement to the notion that an obligation exists to work towards the negotiation of a multilateral disarmament instrument. That this obligation constitutes customary international law was deftly dealt with by the ICJ advisory opinion on the legality of nuclear weapons.623 All 14 judges unanimously agreed that governments are required by law not only to begin negotiations, but to achieve complete nuclear disarmament through good faith negotiation.624 Additionally, the court uncoupled this obligation from the objective of complete de-militarisation and insisted that the obligation to achieve nuclear disarmament applies universally to all states and not just those possessing nuclear weapons.625

The obligation for state parties to the NPT to both negotiate and achieve a disarmament treaty is firm.626 Although this obligation has been in place since the entry into force of the NPT in 1970, it is only in the last 20 years that we have witnessed empowerment of NNWS. With the initial 1997 draft of the NWC, we can identify a willingness on the part of NNWS to accept responsibility for Article VI compliance. It is possible that the 1996 ICJ advisory opinion and the 1995 NPT review conference brought to the fore the notion that a negotiated solution must be achieved and that talk would no longer be enough. NWS declarations at review conferences trumpeting agreement with the idea of seeking a disarmament solution no longer sufficed for NNWS. It appears that, from 1996 onwards, a comprehensive solution in the form of a multilateral convention, as mandated by Article VI of the NPT, could no longer be hindered by NWS objections or

623 I.C.J. Reports, Legality of the Threat or Use of Nuclear Weapons, para. 98. 624 Ibid., Decision F. 625 See: UNGA, General and Complete Disarmament, A/C.1/52/7, 18 for a summary of the ‘effect’ of the ICJ advisory opinion. 626 See: Christopher G. Weeramanty, “Good Faith: Essential to Nuclear Disarmament and Human Survival,” Briefing Paper for the Second Preparatory Committee for the 2015 Non-Proliferation Treaty Review Conference, Geneva (April: 2013): 2; Elizabeth J. Shafer, “Good Faith Negotiation, the Nuclear Disarmament Obligation of Article VI of the NPT, and Return to the International Court of Justice,” Paper presented at International Seminar, ‘Abolition of Nuclear Weapons, War and Armed Forces’ sponsored by the University of Costa Rica Faculty of Law and IALANA, (Jan. 26, 2008): 8

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refusal to participate. It became clear that a comprehensive multilateral treaty to eliminate nuclear weapons might never be negotiated without NNWS taking practical steps to initiate a draft.

This sense of timeliness was expressed succinctly by Noble Peace Laureates in their 2006 Rome Declaration, which asserted that ‘the failure to work for nuclear weapons abolition shreds the fabric of cooperative security … nuclear weapons are more of a problem than any problem they seek to solve’.627 Former UN Secretary-General Kofi Annan underscored this sense of urgency, calling for progress on both nuclear disarmament and non-proliferation in a lecture at Princeton University shortly before stepping down from the role of Secretary-General. Annan stated that there could no longer be two camps, the ‘non-proliferation-first’ and ‘disarmament-first’ collectives. The two-step process, he argued, needed to merge.628 He espoused his vision of both camps working together and, in doing so, may have empowered NNWS to consider what contributions they could make regarding Article VI compliance. Rather than consistently pressing NWS for progress, Annan suggested they think of how to be more actively engaged.629

Consensus agreement on the part of NNWS and civil society organisations to pursue Article VI compliance with vigour may constitute the principle of timeliness as one of the set of principles underscoring the CSC. What must be identified here is what consensus was reached and upon which principle(s). Taken together, the idea that nuclear disarmament is in the collective security interests of all and the notion that a legal instrument should be concluded and not merely aspired to form a portion of the answer of what the foundation ideology of the NWC and TPNW might be.

State Parties: Differential or Equal Treatment?

The TPNW and its precursor, the NWC, both proceed from the premise that distinctions between state parties be neither perpetuated nor confirmed. Both treaties ensure that all states are regarded equally and that distinctions between NWS and NNWS are removed.

627 The Rome Declaration of Nobel Peace Laureates, 7th World Summit of Nobel Laureates, November,17–19, 2006, http://gsinstitute.org/gsi/newsletter/newsletter_2007-01-17.html#rd. 628 Annan, Lecture at Princeton University, SG/SM/10767, 22. 629 Ibid.

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From this, we may interpret that equal treatment underpins these subsequent nuclear elimination treaties. Acceptance of the principle of equality for all state parties provides the community of interest with a mandate to negotiate a comprehensive agreement that does not preserve the artificial divide between nuclear haves and have-not that was institutionalised by the original treaty.

Given that the original treaty enshrined differential treatment by legitimating the nuclear arsenals of five states and no others, the principle of differentiation in international nuclear arms control law has been codified. This is the underpinning principle that enabled the logical solution contained in Articles I and II of the NPT to be included in the original treaty text. For the TPNW and NWC, the principle of equal treatment for all state parties was accepted as a given for the solution to be negotiated. It is largely only because the principle of equal treatment garnered consensus among states that the elimination process was perceived as a logical and achievable solution to the issue of mutual concern.

To manage the issue of nuclear elimination, states needed to replace the principle of differential treatment with one of equal treatment in the negotiation process of a treaty subsequent to the NPT. By doing so, they could reach consensus to the idea that all states, regardless of whether they are NWS, NNWS or outlier states, should be treated equally. From this position of mutual agreement, the CSC solution follows: transparent elimination of weapons according to a mutually acceptable time-bound schedule. The finer details of the CSC solution will be provided shortly. For now, we must turn to the preamble to interpret the foundation ideology. Paragraph two of the TPNW reflects agreement to the principles that have been discussed thus far:

Deeply concerned about the catastrophic humanitarian consequences that would result from any use of nuclear weapons, and recognizing the consequent need to completely eliminate such weapons, which remains the only way to guarantee that nuclear weapons are never used again under any circumstances [emphasis mine].630

The foundation ideology of the NWC and TPNW can be extrapolated from the preamble of the TPNW and is: elimination of all nuclear weapons will reduce security dangers. By inclusion of the word ‘all’ in this CSC interpretation and the words ‘any’

630 TPNW, Preamble, para. 2.

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and ‘completely eliminate’ from the preamble, not even one state, let alone five states, could – if the solution is to follow from application of the ideology to the issue of mutual concern - be permitted to retain nuclear arms. In comparison, the inclusion of the word ‘further’ in the foundation ideology of the original treaty indicates that five states are permitted to retain nuclear arms. The foundation ideology of the NPT is that further horizontal proliferation will increase security dangers. The task now is to demonstrate how the idea of equal treatment for all states supplanted that of differential treatment. To do so, we must understand what led the community of interest to reach agreement on the principle of equal treatment and how that consensus was garnered.

Humanitarian Consequences of Nuclear Weapons

To justify this interpretation of the NWC/TPNW foundation ideology, we must show what led negotiating states to reach agreement to the principles of collective security interests, timeliness and more importantly, equal treatment. The consequences of the Humanitarian Impact of Nuclear Weapons conference is largely responsible. It is akin to the series of First Committee meetings of the UNGA when the Irish introduced the concept of wider dissemination of nuclear weapons through annual resolutions over four years. This led states to independently relate wider dissemination of nuclear weapons to increased security dangers.

The first Conference on the Humanitarian Impact of Nuclear Weapons took place in Oslo in 2013 and was followed by meetings in Nayarit in 2014 and Vienna later that same year.631 The humanitarian initiative brought into clear focus the fact that no single government could address the immediate or long-term consequences caused by nuclear weapons detonation.632 These conferences also provided irrefutable evidence of the death and destruction that would ensue and also allowed states to explore the logistical response effort that would be required in such an instance. The conferences provided states with a forum to discuss how a nuclear explosion could cause long-term and potentially irreversible damage to the health of their civilians and the environment.

631 Federal Ministry Europe, Integration and Foreign Affairs, “Vienna Conference on the Humanitarian Impact of Nuclear Weapons,” https://www.bmeia.gv.at/en/european-foreign- policy/disarmament/weapons-of-mass-destruction/nuclear-weapons-and-nuclear-terrorism/vienna- conference-on-the-humanitarian-impact-of-nuclear-weapons/ 632 Acheson, “Banning Nuclear Weapons,” 4.

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What began as a relatively small Norwegian initiative to spread awareness about the humanitarian consequences of nuclear weapons grew into a global movement for change when 107 states supported the Austrian Pledge at the conclusion of the 2014 conference in Vienna.633 This pledge called for state parties to the NPT to ‘fill the legal gap for the prohibition and elimination of nuclear weapons’.634 Thus, the position of NNWS was galvanised as the 2015 NPT review conference approached. From this, it can be deduced that as states became more aware of their own inability to respond to catastrophe, they realised that their primary contract, to provide security for their citizens, would be compromised unless an unequivocal ban against nuclear weapons was implemented.

The agreements reached through the Humanitarian Conference process gave rise to the notion that nuclear weapons must never be used and must, therefore, be comprehensively banned. The Austrian Pledge solidified consensus to the idea that this issue was universal and that all states, regardless of whether they possess nuclear weapons or not, must be treated equally. This emerged from the understanding that no single state could guarantee the security of its citizens—and that an individual’s right to life must be preserved. For the NPT, the persuasive aspect was that an increase in the number of states with nuclear weapons capabilities would increase security dangers.

Scott suggests that ‘the degree to which the foundation ideology is intrinsically accepted by states will go a long way towards determining their level of compliance with treaty obligations’.635 This will lead to state perception of the solution as the only one possible.636 The TPNW and NWC face opposition from NWS primarily because they do not agree with the principles that underpin the subsequent treaties; they will not agree to level the playing field and remove the distinctions that the NPT established. The view predominantly held by NWS (particularly the US) is that drafting a single

633 Michael Linhart, “Pledge presented at the Vienna Conference on the Humanitarian Impact of Nuclear Weapons by Austrian Deputy Foreign Minister Michael Linhart,” (Dec. 8-9, 2014) https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abruestung/HINW14/HIN W14_Austrian_Pledge.pdf 634 Ibid., 635 Scott, “Does the UNFCCC Fulfil the Functions Required of a Framework Convention?” 18. 636 Ibid.,

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comprehensive disarmament instrument is premature.637 That uncertainty among political actors, events and structures may mean that any attempt to solve the issue at this time is unwise. Outright opposition by NWS to the comprehensive nature of both the TPNW and NWC could also be interpreted as a cover for their unspoken goal: to preserve the divide and associated legitimacy derived from their status in the original treaty. Thus, NWS promote the step-by-step approach as an alternative to a single comprehensive disarmament instrument.

Several ideas can contribute to the view that a disarmament treaty must be negotiated. The maximally destructive nature of the weapons suggests that elimination of nuclear weapons is a collective security interest, though this is not new. There is also the idea that nuclear weapons are of limited value in the overall arsenal; this can potentially alter traditional security doctrines.638 As perceived purchase declines, the value of retaining a nuclear posture can be re-examined. One of the persuasive arguments is that if detonation of a nuclear weapon is an illegal breach of an individual’s human rights, ipso facto nuclear weapons can never be used.639 They then have no practical utility and should, therefore, no longer be legal to use or even own. This approach seeks to conclusively prove the illegality of this class of weaponry to support the devaluation of nuclear weapons.640

In this section, a number of ideas associated with why nuclear disarmament is a laudable goal were raised. These were identified in relation to the movement towards nuclear elimination that became more palpable after the decision to indefinitely extend the NPT. The two sub-principles that states consent to are that nuclear elimination is a

637 See: “Statement by the People’s Republic of China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America to the 2015 Treaty on the Non-Proliferation of Nuclear Weapons Review Conference,” para. 4 ‘We continue to believe that an incremental step-by-step approach is the only practical option for making progress towards disarmament.’ (2015); & footnote 592 on page 172 of this thesis for US preference of the ‘step-by- step’ approach. 638 See: Nick Ritchie, “Waiting for Kant: devaluing and delegitimizing nuclear weapons,” International Affairs 90, no. 3 (2014): 601; Nick Ritchie, “Valuing and Devaluing Nuclear Weapons,” Contemporary Security Policy 34, no. 1 (2013): 146.; Ken Berry, Patricia Lewis, Benoit Pelopidas, Nikolai Sokov and Ward Wilson, Delegitimizing Nuclear Weapons: Examining the Validity of Nuclear Deterrence (Monterey: James Martin Centre for Nonproliferation Studies, 2010), section IV. 639 Acheson, “Banning Nuclear Weapons,” 2. 640 Nick Ritchie, “Legitimizing and Delegitimizing Nuclear Weapons In Viewing Nuclear Weapons Through a Humanitarian Lens, ed. John Borrie and Tim Caughley, (Geneva: UNIDIR, 2013): 44-46.

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collective security interest and that the time to act is now and not later. The Humanitarian Consequence of Nuclear Weapons conferences galvanised agreement to the main principle that underpins how the problem of nuclear elimination might be solved and led to consensus agreement to draft an instrument that levelled the playing field. The differential treatment inherent in the original treaty would no longer be upheld in a subsequent disarmament treaty. Instead, the TPNW treats all states equally. The CSC solution will now be examined in more detail to uncover how these principles translate into agreed upon solutions to the issue of mutual concern.

CSC Solution

According to Scott, a CSC solution has two elements. Prima facie, it is ‘an agreed constraint on pursuit of the common goal and may take the form of a rule proscribing or prescribing particular action’.641 The most significant divergence between the NWC and TPNW is found in this section. Both contain agreement to constrain pursuit of a common goal but differ in how they proscribe or prescribe action. The NWC includes more prescriptive provisions, while the TPNW proscribes a class of weapons but delays the detail of how a state will act to implement the ban to a later stage.

The Nuclear Weapons Convention

The CSC solution of the NWC can be found in in Article IV of the convention, which proposes a temporally flexible series of coordinated phases relating back to the date of its entry into force.642 The CSC solution quite simply outlines the steps—obligatory phased-disarmament stages—that states will comply with should the treaty enter into force. In this sense, the solution is a timetable. To facilitate compliance, states are guided by transparency and confidence-building measures, safeguards and assurance mechanisms. The treaty provides an outline for how phased disarmament could proceed by orienting the timeline or schedule towards zero. In this regard, the CSC solution itself is the timetabling of disarmament. Verification, compliance and implementation mechanisms function as a ‘support crew’ by providing important security assurances while the essential ‘solution’ is coordination of nuclear arms reduction. The CSC

641 Scott, The Political Interpretation of Multilateral Treaties, 16. 642 NWC,.

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solution for the NWC is that nuclear weapons will be de-alerted, dismantled and destroyed in a timed and transparent manner.

Structure of the Convention and Substantive Provisions

The NWC comprises 19 articles and eight preliminary protocols. Article I contains general obligations to not ‘research, develop, test, produce, otherwise acquire, deploy, stockpile, maintain, retain or transfer nuclear weapons’.643 Importantly, Article II provides definitions designed to remove ambiguity about integral elements and what precisely the convention refers to.644 Definitional ambiguity has consistently hampered progress in negotiation and review conference processes. At the P5 Beijing Conference of 2014, the working group made significant progress to produce a glossary of key nuclear terms, with NWS readily acknowledging the importance of these efforts in promoting mutual understanding and facilitating negotiations.645 This was championed by NWS as an example of NPT Article VI compliance. The third article of the NWC outlines declaratory obligations that states must produce to maximise transparency and build trust.646

The substantive provision of the convention contained in Article IV is that states first achieve complete transparency through information sharing. This would be followed by a series of phased steps towards elimination, beginning with (1) de-alerting and disabling, then (2) removal and dismantling, followed by (3) destruction, decommissioning and conversion of nuclear weapons and associated delivery systems.647 Article V outlines the verification regime in detail,648 while Article VI provides state parties with guidelines and measures to ensure national implementation.649 Article VIII proposes establishment of an agency similar to that for the Chemical Weapons Convention but unique in that its primary objective would

643 Ibid. 644 Ibid., Article II Definitions. 645 Joint Statement on the P5 Beijing conference: Enhancing strategic confidence and working together to implement the Non-Proliferation Treaty Review outcomes, Beijing, April 14–15, 2014, NPT/CONF.2015/PC.III/WP.334. 646 NWC, Article III, Declarations. 647 Ibid., Article IV, Phases for Implementation. 648 Ibid., Art V Verification. 649 Ibid., Art VI National Implementation Measures.

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include containment and surveillance of all materials, equipment and facilities that could contribute to the development, production or maintenance of nuclear weapons.650 The establishment of a new agency would not replace, but would rather collaborate with, existing organisations though information and technology sharing. It would work with the International Monitoring System established by the CTBTO, for example. Articles IX through XII refer specifically to the disarmament and elimination of each aspect of a nuclear arsenal: weapons, material, facilities and weapons delivery vehicles.651 Final clauses pertain to entry into force, dispute settlement and financing provisions.652

Implementation

Of vital import is that phases for elimination are timed to the entry into force date of the convention and the treaty provides deadlines for completion. Weapons are to be de- alerted, removed from deployment sites or vehicles and finally dismantled and destroyed in a timed and transparent manner. Phase One requires that states will have complied with ‘Article III, Declarations’ and submitted declarations pertaining to the state’s nuclear weapons, nuclear material, nuclear facilities and delivery vehicles to the registry.653 Central to this element of the solution is the core concept that transparency is integral to confidence-building. It is favourable to compel states to report and share information on their arsenals to remove secrecy and erode status associated with this class of weapon.

Phase One also requires states to have de-alerted and disabled all nuclear weapons and nuclear delivery vehicles;654 to have ceased production of nuclear weapon components and equipment;655 to have decommissioned and designated nuclear weapons research, testing and production facilities for closure;656 to have ceased production of proscribed

650 Ibid., Accompanying notes to Articles VIII (a) and (b), 70–71. 651 Ibid., Articles IX–XII. 652 Ibid., Articles XV–XIX. 653 Ibid., Articles III A–D. 654 Ibid., Article IV D. 7(c). 655 Ibid., Article IV D. 7(e), as listed in Schedules 1 and 2 of the Annex on Nuclear Weapons Components and Equipment. 656 Ibid., Article IV D. 7(f).

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nuclear material657 and to have ceased nuclear weapons research.658 Additionally, states are to lodge plans for the fulfilment of all obligations and this phase is to be concluded no later than one year after the entry into force of the NWC.659 Phase One asks the most of states in both practical and philosophical terms; the effort and organisation required of them to comply with their obligations is significant. Successive phases are not as onerous.

Phase Two is timed to conclude no later than two years after the entry into force of the convention and requires that states remove all nuclear weapons and delivery vehicles from deployment sites and that all warheads be removed and either dismantled or put into storage facilities.660 Additionally, states are to negotiate agreements to subject all nuclear weapons, material and facilities to preventive controls.661 This provision is rather ambiguous. Phase Three is to be concluded no later than five years after the entry into force of the convention. It requires that all nuclear weapons be dismantled662 and destroyed with no more than 1,000 warheads in each of the stockpiles of Russia and the US,663 and no more than 100 warheads in each of the stockpiles of China, France and the UK.664 Additionally, all delivery vehicles should be destroyed or converted,665 and all facilities shall be designated for decommissioning, closure or conversion.666

Ten years after the entry into force of the convention, Phase Four would see no more than 50 warheads in each of the stockpiles of Russia and the US,667 and no more than 10 warheads in each of the stockpiles of China, France and the UK.668 Additionally, all

657 Ibid., Article IV D. 7(g). 658 Ibid., Article IV D. 7(h). 659 Ibid., Article IV D. 7(i) and 7. 660 Ibid., Article IV D. 8 (a) and (b). 661 Ibid., Article IV D. 8(c). 662 Ibid., Article IV D. 9(a). 663 Ibid., Article IV D. 9(b)i. 664 Ibid., Article IV D. 9(b) ii. 665 Ibid., Article IV D. 9(c). 666 Ibid., Article IV D. 9(d). 667 Ibid., Article IV D. 10(a) i. 668 Ibid., Article IV D. 10(a) ii.

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reactors using HEU would either be closed or converted to LEU use only.669 There is also a provision for all special nuclear material in any form to be under strict, effective and exclusive preventive controls.670 The fifth and final phase is timed to conclude no more than 15 years after the entry into force of the convention. It reads: ‘all nuclear weapons shall be destroyed’.671 Thereafter, ‘the powers and functions of the Agency shall be reviewed and adjusted to preserve its role in carrying out the objectives of this Convention’.672

The drafters of the NWC acknowledge that the final phase of moving to zero nuclear weapons could be the most problematic; there were calls to leave the timeline open but it was decided that an extension could be requested if necessary.673 At the very end of Article IV is ‘phases for implementation’, a potentially significant special provision designed to deal with an undeclared or unrecognised nuclear weapon state. It states that ‘the Executive Council may make special provision for temporary retention of small and diminishing quantities of nuclear weapons or proscribed nuclear materials by Nuclear Capable States’.674 The uncertain elements of Phase Five understandably require that the draft text include provisions to control for unforeseen circumstances. The CSC solution that is contained in Article IV is essentially a schedule for states to manage the elimination of their nuclear arsenals.

It is worth recalling that Scott suggests that in some cases, the ‘solution’ will actually serve to manage the issue in such a way that states are then able to pursue goals or interests within agreed limits, rather than simply solving the issue.675 This ulterior aspect of the CSC solution for the NWC is not apparent, presumably because the community of interest that was instrumental in drafting this treaty does not include the states that should sign on. In a comprehensive treaty that dictates state behaviour by proscribing a specific weapon in certain states’ arsenals, might states pursue another goal? As a power vacuum is created by the dismantling of nuclear arsenals, what other

669 Ibid., Article IV D. 10(b). 670 Ibid., Article IV D. 10(d). 671 Ibid., Article IV D. 11(a). 672 Ibid., Article IV D. 11(b). 673 UNGA, General and Complete Disarmament, A/C.1/52/7, 61. 674 NWC, Article IV E, Special Provision 12. 675 Scott, The Political Interpretation of Multilateral Treaties, 114.

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interests might NWS pursue? Can we predict with any certainty what states might replace nuclear weapons with? According to Scott:

A state will aim to achieve recognition for as extensive as possible a pursuit of the legitimation goal on its own part, while imposing proportionately greater limitation on the pursuit of that goal by other states. The art of negotiating success is to be able to achieve this outcome while the solution, legitimated by the foundation ideology, nevertheless appears to treat all actors equally.676

This theoretical twist is best demonstrated by examining how CSC theory was applied to the NPT. There, the legitimation goal was ‘to enhance national security by having better weaponry than one’s potential adversaries’ and the solution that followed on from this, effectively masking the legitimation goal, was that ‘states with nuclear weapons must not help others acquire them; those without nuclear weapons must not acquire them’.677 Evidently the CSC solution for the original treaty diverted attention away from the underlying fact that NWS were preserving their nuclear weapons status by focusing on the goal of non-proliferation. By focusing on the importance of stopping the spread and exchange of nuclear weapons capabilities among other states, the NWS were able to obtain legitimacy for their own arsenals. In considering subsequent disarmament treaties, we must identify what the CSC solution masks if, as the foundation ideology suggests, the treaties treat actors equally.

The Treaty on the Prohibition of Nuclear Weapons

The treaty text of the TPNW is less complicated and contains far less detail than the NWC. Essentially, the ‘Ban treaty’ does what its colloquial title implies; it codifies a ban on nuclear weapons and leaves the matter of actual dismantlement to a later stage. The TPNW contains a total of 20 provisions. Article 1 is the substantive provision and prohibits nuclear weapons, their transfer, their stationing or use.678 A nuclear weapons capable state is required to disarm within a time-bound framework in order to participate. Similarly, a state that permits stationing nuclear weapons on its territory is required to ensure the ‘prompt removal of such weapons’.679

676 Scott, The Political Interpretation of Multilateral Treaties, 16. 677 Scott, The Political Interpretation of Multilateral Treaties, 164. 678 TPNW, Article 1. 679 TPNW, Article 4(4).

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To implement the prohibition, Article 2 requires that state parties issue declarations to the Secretary-General of the United Nations on whether they owned, possessed or controlled nuclear weapons and whether they had eliminated the program and related facilities.680 Similarly, a state that had nuclear weapons stationed on its territory would be required to declare that the weapons have been removed. These implementation provisions include time-bound restrictions; states that possess nuclear weapons have 180 days from entry into force of the treaty to remove them or, at the latest, by a ‘deadline to be determined by the first meeting of states parties’.681

The treaty has been drafted in such a way that it permits, and to a degree expects, states that possess or station nuclear weapons to join sometime after it enters into force. Article 4 (1) would then apply; the state party would declare that it had eliminated its arsenal and that it will cooperate with a ‘competent international authority … for the purpose of verifying the irreversible elimination of its nuclear weapons programme’.682 Compliance is obviously easier for states that neither station nor possess nuclear weapons.

The right to use nuclear energy for peaceful purposes is reiterated in the TPNW through Article 3, which instructs states to maintain safeguards agreements with the IAEA.683 States that do not have a safeguards agreement in place—such as the five NWS that have ‘voluntary offer’ agreements—must conclude one based on INFCIRC/153 (Corrected).684 This document is akin to a guidebook on how to structure an agreement between a state and the IAEA.685

The remaining substantive provisions refer to national implementation,686 victim assistance and environmental remediation,687 international cooperation and

680 TPNW, Article 2. 681 TPNW, Article 4(1) and 4(4). 682 Ibid., Article 4(1). 683 Ibid., Article 3. 684 Ibid., Article 3(2). 685 IAEA, “The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons,” June 1, 1972, INFCIRC/153/Corr. 686 TPNW, Article 5. 687 Ibid., Article 6.

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assistance.688 The TPNW acknowledges the specific effects of nuclear weapons and testing on women, children, indigenous communities and the environment, and state parties are required to provide assistance to remedy the effects of nuclear weapons testing. Articles 8 and 9 refer to meetings of state parties and the costs associated with six-yearly review conferences.689 The CSC Solution for the TPNW appears to reside within Article 8, which asks states to meet, consider and where necessary take decisions on ‘measures for the verified, time-bound and irreversible elimination of nuclear weapons programmes’.690

The CSC solution could arguably be found in Article I, which bans nuclear weapons. This fails, however, to provide a means by which state behaviour is altered. The ban provision is a reiteration of disarmament rhetoric that has characterised the nuclear arms control regime since the NPT entered into force. The ban is touted as ‘closing the legal gap’ and creating a normative taboo, though, arguably, the notion that nuclear weapons must never be used and that states should eliminate their arsenals is not new. What is new is that state parties to this new legal instrument of the nuclear arms control regime now have the mandate to decide on ‘measures for the verified, time-bound and irreversible elimination of nuclear weapons programmes’.691 This ‘solution’ found in Article 8 follows logically from the foundation ideology (treat all states equally) and the CSC issue (how to manage the dismantlement and elimination of nuclear weapons).

In Relation to the NPT

The CSC solution has been interpreted from a close reading of the treaty text, although some understanding of the history of the negotiation process, and of previous drafts, was beneficial. The TPNW explicitly asserts complementarity with the NPT in two places in the treaty text: paragraph 18 of the Preamble, which reaffirms ‘full and

688 Ibid., Article 7. 689 Ibid., Article 8(4). The first meeting will take place five years after entry into force and then every six years thereafter. 690 Ibid., Article 8 (1)(b). 691 TPNW, Article 8.

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effective implementation’ of the NPT as cornerstone of the regime692 and in Article 18 which reads:

The implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty.693

Taken together, these references to the original treaty, particularly Article 18, suggest that only the obligations that are consistent with the TPNW apply. This places the subsequent treaty’s provisions above those of the original. Article 18 might be interpreted to mean that the obligation for NWS to disarm (Article VI of the NPT) applies while the right to retain nuclear weapons (Article I of the NPT) does not because it is inconsistent with the obligations of the TPNW. It is worth comparing this provision on the relationship with other agreements to an earlier draft from 22 May 2017, in which Article 19 stated that ‘this Convention does not affect the rights and obligations of the States Parties under the Treaty on the Non-Proliferation of Nuclear Weapons’.694

This earlier version quite clearly would have maintained the rights of state parties to the NPT and suggests that a state’s right to retain nuclear weapons would be preserved. The finalised text eliminates any confusion; only obligations that are consistent for a state party to both the NPT and the TPNW apply. Clearly, the right to retain nuclear weapons is inconsistent with the obligation to eliminate all nuclear weapons. Highsmith and Stewart argue that this change subordinates the NPT.695 They also argue that the NPT review process will be disrupted, that the IAEA and additional protocol will be undermined. They caution against sanctions for states possessing nuclear weapons.696 Their final word belies the fear that the TPNW will unseat or challenge the existing power structure. They ‘hope that, parties will be sensitive to the potential harm to the existing nuclear non-proliferation regime and direct their actions accordingly’.697

692 Ibid., Preamble, para. 18. 693 Ibid., Article 18. 694 Draft Convention on the Prohibition of Nuclear Weapons, May 22, 2017, A/CONF.229/2017/CRP.1, https://s3.amazonaws.com/unoda-web/wp-content/uploads/2017/05/A- CONF.229-CRP.1.pdf. 695 Newell Highsmith and Mallory Stewart, “The Nuclear Ban Treaty: A Legal Analysis,” Survival: Global Politics and Strategy 60, no. 1 (2018), 141. 696 Ibid., 140–144. 697 Ibid., 145.

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Uncertainty as to how the TPNW will affect the NPT is fairly moot, perhaps because its success thus far has been limited, having only attracted NNWS parties to the NPT.698 The 2020 NPT review conference is likely to provide further clarification on the relationship between these two treaties.

CSC Myth

‘This is a beginning of the end of nuclear weapons’, said Setsuko Thurlow, Hibakusha (survivor) of the Hiroshima bombing of 1945.699 Acknowledging that the TPNW will not ‘magically’ eliminate nuclear weapons, she beseeches every leader to sign the treaty arguing that ‘no longer shall [their] abstract theories mask the genocidal reality of their practices’.700 Through this highly charged treaty negotiation process, several slogans and catch-cries circulated. These must be assessed for whether they support the foundation ideology and how they compare with the CSC myth of the original treaty.

The CSC myth augments the foundation ideology; it is the story told around, and in support of, the foundation ideology. Most often, the myth can be sourced from literature accessible to the layperson as it is unlikely to be stated in official documents.701 The CSC myth of the NPT was: ‘NPT, safeguard against nuclear war’.702 Similarly, the CSC myth of the NWC could be: abolish nuclear weapons; safeguard against nuclear war or accident. For the TPNW the CSC myth could be: ban the bomb; no-one is safe until all nuclear weapons are eliminated. These will be examined in turn.

The Nuclear Weapons Convention

The narrative told by advocates of the Global Zero movement is one of the potential for nuclear accidents and often points to specific moments in history to show how close the

698 Treasa Dunworth , “The Treaty on the Prohibition of Nuclear Weapons,” American Society of International Law Insights 21, no.12 (October 2017): 2; 699 Setsuko Thurlow, Closing Remarks to the Negotiating Conference, July 7, 2017 http://hibakushastories.org/setsuko-thurlow-gives-final-remarks-at-ban-treaty-adoption/. 700 Setsuko Thurlow, Nobel Prize Acceptance Speech, December 10, 2017, https://www.wagingpeace.org/setsuko-thurlow-nobel-peace-prize-acceptance-speech/. 701 Scott, The Political Interpretation of Multilateral Treaties, 16. 702 Ibid., 164.

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world came to nuclear war.703 A contrasting narrative suggests that retention of nuclear weapons will invariably and eventually lead to detonation, as Annan ominously opined:

We are ‘sleepwalking towards disaster’. In truth it is worse than that - we are asleep at the controls of a fast-moving aircraft. Unless we wake up and take control, the outcome is all too predictable.704

The CSC myth of the NWC was championed by advocates of Global Zero, most notably by the mythologically titled, ‘Four Horsemen of the Nuclear apocalypse’.705 Schulz, Perry, Nunn and Kissinger, former US government officials, co-authored strident op-ed pieces in the Wall Street Journal advocating for a world free of nuclear weapons.706 They argue that deterrence in the post-Cold War era is increasingly hazardous and decreasingly effective and that the likelihood of a non-state terrorist obtaining nuclear weaponry is increasing.707 A characteristic of the CSC myth is that it is disseminated indirectly; the message may permeate obliquely. Conversely, the harbingers of doom who stridently call for abolition invoke the potential for accident as standard.

Another aspect of the CSC myth relates to the insurmountable magnitude of the task at hand. The four horsemen proposed the following analogy:

In some respects, the goal of a world free of nuclear weapons is like the top of a very tall mountain. From the vantage point of our troubled world today, we can’t even see the top of the mountain, and it is very tempting and easy to say we can’t get there from here. But the risks from continuing to go down the

703 Tad Daley, Apocalypse Never, 69: Daley cites the memoir of Theodore Sorenson, underscoring how close the human race came to committing collective suicide: ‘One Defense department count listed 563 incidents of nuclear mistakes, malfunctions and false alarms’. 704 Annan, Lecture at Princeton University, SG/SM/10767, 22. 705 The original four horsemen of the apocalypse are mentioned in the Bible in Revelations 6 and have been represented in art and poetry as symbols of conquest/religion, war, famine and death and as white, red, black and pale horses respectively. See: Andrew Cunningham and Grell Ole, The Four Horsemen of the Apocalypse: Religion, War, Famine and Death in Reformation Europe (Cambridge: Cambridge University Press, 2000). 706 George P. Schulz, William J. Perry, Henry A. Kissinger and Sam Nunn, “A World Free of Nuclear Weapons,” Wall Street Journal, January 4, 2007, http://online.wsj.com/articles/SB116787515251566636. 707 Ibid.

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mountain or standing pat are too real to ignore. We must chart a course to higher ground where the mountaintop becomes more visible.708

This long, slow road combined with hard-to-reach, summit mythology is employed as an allegory to embolden action and generate conviction. Daley advises us ‘to discern clearly what the top of the mountain might look like, and to envision clearly the path by which we might navigate our ascent’.709 One should become more motivated to hasten efforts more pointedly and persevere. The high summit analogy also conveys practicality and sensibility; although long, this is a process that will conclude if one remains committed to it. The story being promoted is that the goal of nuclear abolition is neither utopian nor idealistic. By acknowledging the long-term nature of the task, criticism of abolition as a fantasy is removed. This summit analogy is not in itself the CSC myth, but can better be understood as a sub-story intended to prevent detractors from thinking that abolitionists are utopian and unrealistic.

The CSC myth of the NWC (that abolition is a safeguard against accident or war) highlights threats to human survival. Cirincione articulates four main threats: nuclear terrorism, existing nuclear arsenals, new nuclear states and the collapse of the non- proliferation regime.710 Unlike states, terrorists have no fixed assets to protect and are less likely to be deterred by fear of retaliation. This is one of the conundrums that frustrate the security dilemma and hamper security strategy planning.711 In an era when a non-state actor may obtain and detonate a nuclear weapon, there is very little capacity for containment. Nuclear weapons are arguably then only an existential threat.

The capacity to defend against nuclear terrorism is examined by Ferguson and Potter. The facets they identify are: theft and detonation of an intact weapon; theft or purchase of fissile material leading to detonation of a crude nuclear weapon, an improvised nuclear device; an attack against nuclear facilities (in particular power plants) to release large amounts of radioactivity and unauthorised acquisition of radioactive material to

708 George P. Schulz, William J. Perry, Henry A. Kissinger and Sam Nunn, “Toward a Nuclear-Free World,” Wall Street Journal, January 15, 2008, http://online.wsj.com/articles/SB120036422673589947. 709 Daley, Apocalypse Never, 14. 710 Joseph Cirincione, Bomb Scare: The Future and History of Nuclear Weapons (New York: Columbia University Press, 2007), 88. 711 Booth & Wheeler, The Security Dilemma: Fear, Cooperation and Trust in World Politics, 1–18.

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detonate a ‘dirty bomb’ or radiation emission device.712 The effect of any of these is potentially catastrophic, but also scenario-dependent. The likelihood of any one of these nuclear terrorist threats has also increased significantly since the late 1990s.713 This led Perry, one of the four horsemen, to starkly confess, ‘I have never been as worried as I am now that a nuclear bomb will be detonated in an American city’.714 The irrationality of extremist terrorist groups brought the very utility of nuclear weapons into focus.

Regarding the threat posed by existing nuclear arsenals, historical data can be examined to tally how often nuclear accidents nearly occurred.715 With vast numbers of nuclear weapons on hair-trigger alert, the risk of an unauthorised launch is greatly increased. Nunn, another of the ‘four horsemen’, argues for a change in posture to remove all weapons from hair-trigger status to avoid an accidental or unauthorised launch.716 He shares how close we came to a nuclear accident in January 1995 when Russian forces mistook a Norwegian weather rocket for a US submarine-launched ballistic missile. For the first time in the nuclear age, President Yeltsin had the ‘nuclear suitcase’ open in front of him with mere minutes to decide whether to launch a barrage of nuclear missiles. Fortunately, he concluded that the alert had to be a mistake and disaster was averted.717

The threat posed by outlier states is magnified by the lack of regulation constraining these states. They are either in active or dormant conflict: India with Pakistan, Israel with the Middle East and North Korea with both South Korea and the West, generally. Nuclear weapons serve as both defensive or offensive elements of each state’s nuclear

712 Charles D. Ferguson and William C. Potter, The Four Faces of Nuclear Terrorism (Monterey: James Martin Centre for Nonproliferation Studies, 2004), 3. 713 Ibid., 3. 714 William J. Perry, “Keynote Address: Committee on International Security and Arms Control,” National Academy of Sciences, Washington D.C., August 11, 2004, http://www.7.nationalacadamies.org. 715 See: Nuclear Threat Initiative (NTI), “Close Calls with Nuclear Weapons,” http://www.nti.org/analysis/articles/close-calls/; Eric Schlosser, Command and Control: Nuclear Weapons, the Damascus Accident, and the Illusion of Safety. (New York: Penguin, 2014); Daley, Apocalypse Never, 69;

716 Sam Nunn, “A New Triumph of Sanity,” Speech at Carnegie International Non-Proliferation Conference, June 21, 2004, http://www.nti.org/media/pdfs/statement_nunnceip_062104.pdf?_=1316466791. 717 NTI, “Close Call with Nuclear Weapons,” The Russian Nuclear Football.

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posture. This heated security environment increases the probability of the accidental or intentional detonation of a nuclear weapon. Additionally, relatively new weapons systems may not have requisite safeguard mechanisms in place. Therefore, NWC is promoted as a prophylactic against nuclear accident or war.

The fourth threat, the collapse of the non-proliferation regime, is hypothetical at this stage even though the ‘Ban treaty’ challenges the right to retain nuclear weapons. If the NPT were to dissolve, states might consider developing nuclear weapons anew. Nunn maintains that the actions and resolve of the US and Russia (both key supporters of the NPT regime) to maintain the promise to reduce and eventually eliminate their arsenals is paramount.718 Otherwise, NNWS may feel they are released from their end of the agreement.719 The threats posed by the collapse of the non-proliferation regime, emergence of new NWS, existing nuclear arsenals and nuclear terrorism all support the CSC myth of the NWC that states that abolition is a safeguard against nuclear war and accident.

The CSC myth of the NWC supports the collective security interest aspect of the foundation ideology and it follows that the CSC solution includes time-bound disarmament phases. How then might the CSC myth for the TPNW support the principle of equal treatment for all states? It appears that a complete ban of nuclear weapons for all states for all time augments this principle.

The Treaty on the Prohibition of Nuclear Weapons

There are several potential CSC myths for the TPNW. The first is that the treaty closes the legal gap. This slogan is most often cited to explain why a ‘Ban treaty’ is necessary. The rhetoric is that biological and chemical weapons were effectively outlawed by multilateral treaties and that nuclear weapons, the last of the three families of weapons of mass destruction, must be outlawed in the same way. NGOs promoting the ‘Ban treaty’, such as ICAN, Reaching Critical Will and the Women’s International League for Peace and Freedom, primarily promote the treaty by appealing to this logic of finally eliminating the legal loophole. They seek to ensure that nuclear weapons are never

718 Nunn, “A New Triumph of Sanity,” 6. 719 Ibid., 1. “the persistent and increasing tension between the nuclear haves and have- nots…threatens the global consensus of the NPT bargain.”

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again considered legal and the use, retention, development and stationing of nuclear weapons becomes illegal once a ‘Ban treaty’ is in force. The only caveat to this is the fact that international law is generally not compulsory; states retain the right to consent and thereby, participate. Thus, the legal ban is only applicable to state parties to the TPNW. The myth is that by closing the legal gap, nuclear weapons become illegal for all states.

Another potential CSC myth—one that is more nuanced and would not necessarily be as easily understood by the layperson—is that the TPNW supports the NPT.720 The notion that the ‘Ban treaty’ does not detract from the NPT and actually upholds it as the cornerstone of the nuclear arms control regime is only true to a degree. The ‘Ban treaty’ only reinforces the parts of the NPT that support its cause. These are the parts of the NPT that refer to peaceful use of nuclear energy and the obligation to disarm contained in Article VI. The TPNW however, can no longer abide the grandfathering in of a right to retain nuclear weapons. The right for five states to have these comes into direct conflict with the raison d’être of the subsequent treaty: to ban nuclear weapons. From this, we can deduce that the TPNW does not unequivocally support the original treaty and only upholds certain NPT elements.

Returning to the work of NGOs and accounting for what the layperson might know about the treaty, the populist ‘ban the bomb’ campaign must be considered. People all across the world took photos of themselves with the words ‘ban the bomb’ as a means of showing support for the TPNW.721 This galvanised the positions of NNWS during the drafting process and demonstrated civil society support for the notion that no-one should be allowed to retain nuclear weapons. A total ban promotes the view that no-one is permitted to keep the prohibited item. Thus, ‘banning the bomb’ might lead one to conclude that the five NWS and the four outlier states are also not permitted to keep nuclear weapons. States that allow nuclear weapons to be stationed on their territory would also no longer be permitted to do so. Whether or not this is fact is understood is

720 See CSC Solution section in thesis pp.191-193, referring here to: TPNW, Preamble, para. 18 and Article 18. 721 ICAN, “March To Ban the Bomb,” (May, 21 2017) http://www.icanw.org/campaign- news/march-to-ban-the-bomb/; ICAN, “National Day of Action to Ban Nuclear weapons June 17, 2017,” http://www.icanw.org/day-of-action/

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irrelevant. This CSC myth clearly supports the foundation ideology of the TPNW that all states be treated equally regarding nuclear weapons.

Scott states that the CSC myth must serve the foundation ideology that is alluded to in the preamble of the treaty and act to reinforce it. For the TPNW, the CSC myth would therefore best be defined as this: ban the bomb; no-one is safe until all nuclear weapons are eliminated. This supports the foundation ideology principles of equal treatment for all and collective security. It also incorporates the principle of securing an individual’s human right to life by inclusion of the term ‘no-one’. While the myth for the TPNW may ring true, it will not be found in official documents. The concluding sections of this chapter will now directly address the issues of integration and harmonisation by comparing original and subsequent treaty CSC components.

The Interplay of CSC Units of Analysis

From this CSC theory application to the two subsequent, comprehensive disarmament treaties, the NWC and TPNW, we can identify the potential threat that the foundation ideology of the subsequent treaties poses to that of the original. The NPT is underpinned by a principle of differential treatment for states (that further horizontal proliferation will increase security dangers), which led to a CSC solution in the form of the grand bargain. The TPNW and its precursor, the NWC, are underpinned by a principle of equal treatment for all states (that elimination of all nuclear weapons will reduce security dangers). These two ideologies are incompatible. If the normative structure of the NPT is undermined, there will be real-world concern about fragmentation. The ‘Ban treaty’ may then become a victim of its success with the potential threat being that it undermines the nuclear arms control regime from within.

The conclusion of the TPNW makes it harder for NWS to argue against disarmament. Article VI was the previously codified commitment; it was both contained within the original treaty and drafted in non-specific terms and hence, is difficult to defeat. The TPNW could eventually emerge as a fundamental threat to the regime primarily because its foundation ideology does not augment that of the NPT. This means that the subsequent treaty cannot harmonise politically with the original even though an attempt was made to ensure that the original and subsequent treaties integrate legally. Article 18 of the TPNW on the ‘relationship with other agreements’ does not prejudice obligations

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with existing agreements with the caveat that those obligations must be consistent with the treaty itself (TPNW).722 While appearing to prioritise the obligations contained in the original treaty, closer inspection has revealed that Article 18 does not actually do so. The potential threat that the TPNW poses to the regime, with NPT as original treaty, was identified by Singapore, the Netherlands and others during the negotiation phase.723 It remains to be seen how significant its effect will be.

At this stage, one may also argue that the TPNW does not pose a significant threat to the regime because none of the NWS, nor any states they protect, have signed, let alone ratified, it. The power structure enshrined in the NPT reject both comprehensive disarmament treaties. Their refusal to engage in the treaty negotiation processes was described in the section on the community of interest. The original and subsequent treaties do not share community of interest members, the former includes NWS and the latter precludes NWS involvement and the legitimation goal of the TPNW does not correlate with that of the original treaty.

US opposition to the NWC and TPNW can be explained in several ways. The first and most important criterion for the US with regard to any arms control treaty is verification. Gottemoeller cites US national security expert Paul Nitze, who explains effective verification as follows:

[I]f the other side moves beyond the limits of the treaty in any militarily significant way, we would be able to detect such violations in time to respond effectively and thereby deny the other side the benefit of the violation.724

For the US, this definition has been, and continues to be, the benchmark for verifying arms control treaties.725 The NWC and TPNW do not appear to provide adequate verification mechanisms to meet this standard. Another seminal aspect of US opposition

722 TPNW, Article 18. 723 UN Meetings Coverage and Press Releases, “Conference to Negotiate Legally Binding Instrument Banning Nuclear Weapons Adopts Treaty by 122 Votes in Favour, 1 against, 1 Abstention,” Conference on Nuclear Weapons, July 7, 2017, DC/3723, https://www.un.org/press/en/2017/dc3723.doc.htm. 724 Paul Nitze, cited in Rose Gottemoeller, “Mobilizing Ingenuity to Strengthen Global Security,” South by Southwest Conference (SXSW), Texas: USA, (March 8, 2013) http://defenseinnovationmarketplace.mil/resources/DOS_MobilizingIngenuityStrengthenGlobalSecu rity.pdf 725 Ibid., Gottemoeller

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is that it prefers a step-by-step, rather than a comprehensive, approach to disarmament. This has been a feature of US nuclear arms control policy for decades, essentially rendering the NWC and TPNW non-starters from the beginning.

Singapore abstained from the vote to finalise the treaty, citing unnecessary legal uncertainty and stating that ‘greater efforts should have been made to reconcile divergent views and seemingly contradictory positions regarding the rights and obligations of States parties to other agreements’.726 Switzerland wanted the treaty to go further in affirming the NPT as the ‘cornerstone of disarmament efforts’.727 Similarly, the Netherlands affirmed that it could not sign any instrument that undermines the NPT, has inadequate verification provisions or is incompatible with NATO norms.728 According to the Netherlands, the TPNW places itself above the NPT and creates a parallel and partially overlapping review mechanism. They reiterate that the only disarmament obligations for the permanent five members of the Security Council are those outlined in the NPT.729 The states that receive security benefits from NWS, the US and Russia in particular, are championing the primacy of the original treaty and are negating the legitimacy of the ‘Ban treaty’.

Conclusion

The potential challenge posed by the TPNW to the NPT has been explored. Application of CSC theory has identified components that directly contest the corresponding component of the NPT. In Chapter Two, the foundation ideology for the NPT was interpreted. The principle of differential treatment for state parties was identified as underpinning agreement to the grand bargain. In this chapter this differentiation principle was directly challenged by the principle of equal treatment for all states that underpins the TPNW. Only through acceptance of the principle of equal treatment for all states might a schedule for the dismantlement and destruction of nuclear weapons be

726 UN Meetings Coverage and Press Releases, “Conference to Negotiate Legally Binding Instrument Banning Nuclear Weapons Adopts Treaty by 122 Votes in Favour, 1 against, 1 Abstention,” DC/3723. 727 Ibid., 728 Ibid., 729 Ibid.,

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considered by NWS. In this way, the chapter clearly exposes the link between the subsequent treaty’s foundation ideology and CSC solution.

The foundation ideology and CSC myth sections also raised a number of compelling reasons for why states agreed that nuclear elimination should be sought: it would serve collective security interests, it was the right time in the life of the regime to do so, nuclear accidents and terrorism were becoming more likely and the potential devastation from nuclear weapon detonation was deemed too great for any one state to bear. While relatively persuasive, these reasons were found to be largely irrelevant to the foundation ideology of the TPNW. Alone, none of them generates consensus to the CSC solution of time-bound elimination of nuclear weapons as a prerequisite for becoming a state party to the TPNW. To facilitate this solution to the issue of mutual concern, states must dismantle the asymmetry created by the original treaty. They require an even playing field that does not treat any one state differently from others. Once consensus agreement to this idea was achieved, the requirement that all states eliminate their weapons logically followed.

The TPNW does not appear to politically harmonise with the NPT and legal integration between the two treaties is questionable (See Table 4). Beyond the foundation ideology issue, there is also divergence between the original and subsequent treaties’ communities of interest, which made it far more likely that the TPNW would detract from and challenge the original treaty. The community of interest, those participants actively seeking a solution to the CSC issue of how states can, regardless of their outlier, nuclear or non-nuclear status, multilaterally ban and eliminate nuclear weapons is not common to both the original and subsequent treaty. The TPNW/NWC is fundamentally a NNWS initiative that NWS expressly refuse to engage with through the UNGA and NPT preparatory commissions.

To investigate the prospects for NWS engagement with these subsequent comprehensive disarmament treaties, IALANA, one of three organisations responsible for the drafting of the NWC in 2009 submitted a report to the ICJ. In it, they seek clarification on:

Whether the failure to commence such negotiations constitutes a lack of compliance with the obligation set forth in Article VI of the NPT and in paragraphs 98–103 and 105(2)F of the 1996 ICJ Advisory Opinion to pursue

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in good faith and bring to a conclusion to negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.730

The ICJ has yet to provide an answer to this question on compliance and what might constitute ‘good faith’. However, this avenue is indicative of alternate courses of action and determination on the part of NNWS who were empowered to act to ensure compliance with Article VI of the NPT.

The TPNW represents a comprehensive attempt to codify what had previously been thought to be un-codifiable: the elimination of nuclear weapons. NNWS may hope that the TPNW will someday supplant the NPT. This may well be their legitimation goal, though it is perhaps too early to be certain. Through CSC theory application, it is clear why the TPNW potentially poses both a legal and political challenge to the NPT. The final chapter will assimilate all three CSC application processes to provide conclusions about integration and harmonisation between original and subsequent treaties in the nuclear arms control regime.

Table 4. Cognitive Structures of Cooperation (CSC) Components for the Nuclear Weapons Convention (NWC)

CSC Term Explanation731 NWC Component

Community of Those participants that express an The community of interest includes interest interest in participating in resolution NNWS parties that are bolstered by of the issue under consideration. civil society organisations.

CSC issue The issue with which the treaty was How can all states, regardless of their established to deal; the issue to outlier, nuclear or non-nuclear status, which the treaty is a response. multilaterally ban and eliminate nuclear weapons?

Legitimation The self-interested, competitive Currently inconclusive; the goal goal that negotiating states had in community of interest does not seem

730 IALANA, IHRC, “Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons: Request for an Advisory Opinion from the International Court of Justice,” International Human Rights Clinic, Harvard Law School (2009): 27. 731 Scott, International Law in World Politics,13–17.

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CSC Term Explanation731 NWC Component

common that gave rise to the to have a masked or veiled goal. perceived need for a regime. The NNWS may seek to replace or legitimation goal provides restraint supplant the NPT by enforcing the to unchecked pursuit of state policy. second-level treaty obligation embedded in the original treaty.

Foundation A principle or (small set of Elimination of all nuclear weapons ideology interrelated principles) alluded to in will reduce security dangers. the preamble that underpins and unifies the agreed cognitive structure by which to manage the issue of mutual concern.

CSC solution The nub of what the states parties Prohibit nuclear weapons and provide are going to do to tackle the issue measures for the verified, time-bound that has come to threaten their and irreversible elimination of nuclear pursuit of the legitimation goal. weapons programs. Usually succinctly stated within the first four substantive provisions of the treaty.

CSC myth Reinforces the foundation ideology Abolition of nuclear weapons; and is accepted as a basis for action safeguard against nuclear accident or by the CSC members (though rarely war. articulated).

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CHAPTER SIX. CONCLUSIONS

This thesis examined treaty integration and harmonisation in the nuclear arms control regime founded on the 1968 NPT. It drew on CSC theory to first analyse the NPT and then to consider each of the three subsequent disarmament treaties: the 1996 CTBT, the 2015 FMT, and the 2017 TPNW. This chapter will provide findings in relation to three tenets of CSC theory: the issue-ideology-solution nexus, the stability dynamic, and the link between the community of interest and the legitimation goal. This will permit conclusions to be drawn in relation to the development of the regime to date and its potential future.

Reviewing the Research Process

This thesis was an exercise in treaty interpretation. It may be recalled that the interpretative process involved two steps. First, CSC theory was applied to interpret the CSC components of each treaty: the CSC issue, community of interest, legitimation goal, foundation ideology, CSC solution and CSC myth (see Table 5). Then, by drawing on CSC theory, the connections between the treaties and their relationships to structures of power were analysed. Conclusions were drawn regarding both real-world implications and multilateral treaty development and progression.

The ultimate goal was to determine the extent to which each treaty integrated legally and/or harmonised politically with the NPT. Legal integration, as used in this thesis, incorporates the ILC notion of consistency with existing international law but refers more specifically to the absence of conflict between provisions of an original and subsequent treaty within a single legal regime. As used in this thesis, harmonisation draws on the ILC notion of a ‘single set of compatible obligations’ in relation to an absence of conflict between norms,732 yet is denoted by continued acceptance of an ‘ideology’, evident through reiteration during the course of regime life of a principle or small set of principles. Harmonisation is described by its relativity to politics and integration is described by its relativity to law.

732 ILC Report, 69th session, 165.

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While the original enunciation of CSC theory provided an overarching theoretical framework, it did not explicitly address political harmonisation and legal integration. The thesis therefore adopted the methodological approach that Scott originally used to develop and refine CSC theory. Scott developed CSC theory through ‘a process of dialogue between socio-political theory and documentary evidence of the Antarctic Treaty and the process of cooperation of which that treaty has been a part’.733 In this thesis the basic tenets of CSC theory have been identified as they relate to the questions of treaty integration and harmonisation through a ‘conversation’ between CSC theory and a specific treaty regime: the NPT and subsequent disarmament treaties. Through this process, the theory was extended and made denser in the sense that it was expanded within the limits of the theoretical framework already in place.

It has been found that working together, three tenets of the theory account for the degree of political harmonisation and legal integration: the internal issue–ideology–solution nexus of each treaty, the stability dynamic that operates amongst the treaties, and the correspondence of the communities of interest with the legitimation goal. All three tenets reinforce the primacy of the original treaty. Legal integration is also evident from the CSC solution of each treaty. The combination of law and politics—integration and harmonisation—is contained within the issue–ideology–solution nexus. Let us consider each in further detail and as applied to the nuclear arms control regime.

Political Harmonisation and Legal Integration (1): The Issue– Ideology–Solution Nexus of each Treaty

CSC theory states that a robust treaty has a strong logical nexus between the CSC issue, the foundation ideology and the solution at its core. It is ideal for the solution to appear as the ‘only possible option’ given the application of principles that constitute the ideology to the issue of mutual concern. This is because rhetoric regarding the solution upholds the foundation ideology and structure of power of which it is a part. This also means that, given common acceptance of the principles, there will be significantly less need for enforcement mechanisms within the regime. To CSC participants, acting in accordance with the solution will appear the obvious way to proceed. This means that to harmonise politically with the original treaty, each subsequent treaty must have a

733 Scott, The Political Interpretation of Multilateral Treaties, 12.

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foundation ideology that upholds that of the original, but each must also contain its own logical issue–ideology–solution nexus.

The NPT was found to contain a tight, strong and logical internal nexus.

CSC issue: Who is going to manage the nuclear threat and how?

CSC solution: Foundation Ideology: States with nuclear Further horizontal weapons must not help proliferation of nuclear others acquire them; weapons would those without nuclear increase security weapons must not dangers. acquire them.

Figure 1. The CSC Nexus of the Non-Proliferation Treaty

The CTBT also has internal coherence in terms of its issue–ideology–solution nexus. The CTBT issue was found to be that as to how the NPT can be indefinitely extended when there is inadequate compliance with the duty to disarm. The foundation ideology was defined as being that cessation of nuclear weapons testing will enhance both non- proliferation and disarmament objectives and therefore, enhance international security. Finally, the solution was identified as being that states will no longer physically test nuclear weapons or assist others to do so. This was to be supported by international monitoring of any nuclear weapons explosions and managing the question of NPT duration by indefinitely extending it. This may superficially appear to be a tight logical nexus; however, in practice, the insertion of the term ‘physically’ in the treaty text meant that it did not altogether align with the original foundation ideology but would actually potentially serve to increase the divide between the NWS and NNWS by permitting virtual nuclear weapons testing.

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The CTBT has not fully legally integrated with the NPT, simply because of its entry into force mechanism. Ratification by all 44 Annex II states was required for the treaty to enter into force. Apart from this, the CSC solution for the CTBT integrates with the CSC solution for the NPT by not outlawing virtual testing, a method that only NWS are technologically advanced enough to employ. The CTBT seeks to simultaneously bring outlier states into the regime while maintaining the division between NWS and NNWS established by the original treaty. While this may be politically unpalatable for states such as India and Pakistan, the internal logic of the nexus for the subsequent treaty is strong.

The French draft of the FMT has the establishment of the GGE to fulfil the Shannon Mandate of 1995 as its issue. The foundation ideology was interpreted as being that further horizontal proliferation resulting from fissile material production would increase security dangers. The solution was defined as: that states would not produce fissile material for certain nuclear activities and states would report all fissile material production facilities, use and possession. This subsequent treaty would also only affect the outlier states because NWS have sufficient stored fissile material to maintain their arsenals. The FMT also has a logical internal nexus between issue, ideology and solution. The inclusion of the term ‘further’ in the foundation ideology legitimises the established power structure of the NPT by condoning only NWS arsenals. The FMT again focused on non-proliferation in the guise of a disarmament treaty. This may best explain why there is the greatest consensus among key states around this particular draft of an FMT. Both the CTBT and FMT sought to bring the outlier states under the law, but without really affecting the NWS and their ability to maintain and modernise their arsenals.

The issue of the comprehensive approaches treaties (NWC and TPNW) is that as to how all states—regardless of their outlier, nuclear or non-nuclear status—can multilaterally ban and eliminate nuclear weapons. The foundation ideology is that elimination of all nuclear weapons will reduce security dangers. The solution is to prohibit nuclear weapons and provide measures for the verified, ‘time-bound’ and irreversible elimination of nuclear weapons programs. This internal logic is very strong.

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Political Harmonisation and Legal Integration (2): The Stability Dynamic

CSC theory states that the internal cohesion of specific treaties within a regime is on its own insufficient to ensure harmonisation and integration. Scott hypothesised that a strong and stable regime is characterised by a self-correcting mechanism by which subsequent treaties not only have their own internal coherence but also serve to reinforce the original CSC. This was referred to as the ‘stability dynamic’.734 The parties involved may not understand their actions in this light, although there are real- world policy implications of this understanding of regime life. When understood in terms of the research questions of this thesis, the extent to which the stability dynamic operates could be considered an indication of the degree of both political harmonisation and legal integration.

This raised the question as to whether the stability dynamic could be identified in the operation of the NPT regime. None of the subsequent treaties has entered into force: do these treaties have CSCs that would weaken the foundation ideology of the NPT? The foundation ideology of the NPT embodied what has been referred to as the ‘differentiation principle’—the distinction between NWS and NNWS—which pertained to further horizontal proliferation as opposed to vertical proliferation. This would suggest that if the regime were to remain strong, any subsequent treaty would also reinforce this division. If a subsequent draft disarmament treaty would have overridden this and treated all states equally, then it could be expected to have been rejected.

Where the foundation ideology of the original treaty is upheld in a subsequent disarmament treaty, as was found to occur for both the CTBT and French draft FMT, the stability dynamic has operated to allow, and not reject, that treaty. The French draft delineated the issue of fissile material production and storage to apply only to future production. This ensured that the treaty would only limit outlier states and aspirant nuclear states, thereby leaving untouched the stockpiles and arsenals of the five NWS. By reinforcing differentiation, these subsequent treaties can politically harmonise. The CTBT also prevents only aspirant nuclear and outlier states from nuclear weapons

734 Scott, The Political Interpretation of Multilateral Treaties, 169.

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testing, while allowing NWS to test virtually. This reinforces the power structure established by the original treaty.

It has been shown that the stated goals of all five NWS, reiterated at every quinquennial NPT review conference, can be understood as including the preservation of the foundation ideology of the NPT, including the NWS/NNWS distinction. Both the CTBT and draft FMT award the five NWS an inherent advantage; both negotiation processes began with acceptance of the differentiation principle. This is an example of the foundation ideology of the original treaty being upheld in subsequent disarmament treaty negotiations (i.e., confirming that further horizontal proliferation of nuclear weapons would increase security dangers). Acceptance of this premise informed subsequent disarmament treaty negotiation processes and only when this principle was challenged did we observe stalling or hindrance of the treatymaking process.

The foundation ideology of the NPT includes the word ‘further’. This presupposes that the existing NWS, the permanent five, can legitimately retain their arsenals and hence do not contribute to an increase in security dangers. This is a direct reflection of the centrality of the foundation ideology to the power structure. Scott acknowledges that the foundation ideology may be accepted as a given and therefore not easily be called into question.735 In reality, the foundation ideology of the NPT is reinforced by the international community’s continued acceptance of the legitimacy of the five designated NWS’s capabilities and its rejection of the legitimacy of both the nuclear-capable outlier states or any state attempting to acquire nuclear weapons, such as North Korea and Iran. While NNWS pursue complete disarmament, state parties to the NPT do not reject the legitimacy of the US, UK, Russian, French or Chinese arsenals that the NPT affords.

Any attempt to change the nuclear order that is premised by consensus agreement to the foundation ideology of the NPT has been rejected. Five states designated by the original treaty maintain security while all other state parties agree not to seek to acquire nuclear weapons. Any state other than the five designated by the NPT, that develops nuclear weapons, will according to this logic, unequivocally increase security dangers. Any attempt by a subsequent disarmament treaty to alter this central underpinning principle

735 Ibid., 16.

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has been rejected. This was most clearly evident in Chapter Five, in relation to comprehensive approaches to disarmament.

The TPNW, and its NWC precursor, attempt to level the playing field and remove the inherent advantage awarded to NWS in Article IX (3) of the NPT.736 To date, all five NWS have failed to engage with the NWC and have declared their intention to never sign the ‘Ban treaty’.737 This could be interpreted as an example of a strong legal regime, one in which the stability dynamic operates to preserve the original treaty. For the TPNW to harmonise and integrate, it would be required to provide differential status for NWS, as in the original treaty. The stability dynamic could only accommodate the TPNW if it were to continue the legacy of asymmetry; any attempt to dilute or reverse the legitimacy afforded the five NWS is unlikely to succeed.

The stability dynamic operates to oppose any attempt to level the playing field. Similarly, any attempt to expand the field and admit new states that have acquired nuclear weapons is countered by reiteration of the status quo that was agreed to in 1968 when the NPT opened for signature.738 The reality some 50 years later is that there are more than five NWS in the world regardless of what international law dictates and the distinction in Article IX(3) of the NPT. The reluctance on the part of NWS to countenance this new reality by devising an inclusive series of nuclear arms control measures to integrate old and new realities is indicative of the centrality and robustness of the NPT’s foundation ideology. The efforts of NNWS to change the NPT through subsequent disarmament treaties such as the TPNW reflects dissatisfaction with NWS’ compliance with Article VI. If the NPT must be adhered to and preserved as a first measure, then there should arguably be compliance – at least in legal terms- with all of

736 NPT, Article IX (3). 737 See: Daryl Kimball. “The United States and the Nuclear Ban Treaty,” In Shatabhisha Shetty & Denitsa Raynova, Breakthrough or Breakpoint? Global Perspectives on the Nuclear Ban Treaty European Leadership Network (Dec. 2017): 8; Nikolai Sokov. “Russia and the Nuclear Ban Treaty,” In Shatabhisha Shetty & Denitsa Raynova, Breakthrough or Breakpoint? Global Perspectives on the Nuclear Ban Treaty European Leadership Network (Dec. 2017): 13; Paul Schulte. “The UK, France and the Nuclear Ban Treaty,” In Shatabhisha Shetty & Denitsa Raynova, Breakthrough or Breakpoint? Global Perspectives on the Nuclear Ban Treaty European Leadership Network (Dec. 2017): 19; Raymond Wang & Dr. Tong Zhao. “China and the Nuclear Ban Treaty,” In Shatabhisha Shetty & Denitsa Raynova, Breakthrough or Breakpoint? Global Perspectives on the Nuclear Ban Treaty European Leadership Network (Dec. 2017): 27-28. 738 Peloso, “Crafting An Updated Nuclear Non-Proliferation Treaty,” 339. “…the five NWS Parties, who appear unwilling to negotiate an end to the two-tiered system of NWS and NNWS Parties.”

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the treaty’s provisions, including the obligation that states negotiate a subsequent agreement. However, to do so would adjust the balance between the non-proliferation and disarmament ideologies, with significant implications for relationships of power in this issue area.

In relation to the foundation ideology component the stability dynamic operates to maintain the primacy of non-proliferation over disarmament. It has functioned to preserve the balance that originated in the pre-negotiation phase of the NPT, when non- proliferation trumped disarmament, the latter then being relegated to a second-level treaty obligation. The tug of war between the two ideologies has been a feature of the regime. At the 2015 NPT review conference, 25 NNWS agreed that ‘we must simultaneously advance non-proliferation and disarmament processes and create a more peaceful world’.739 The tension between the solution dictated by non-proliferation and that dictated by disarmament has been the source of ongoing strain. In recent years, the cause of NNWS has been boosted by a greatly expanded community of interest and a new proposed solution: to ban nuclear weapons. In some treaty regimes, the introduction of a new ideology may shift the distribution of power and influence. For example, environmentalism introduced into the whaling regime enhanced the influence of non-whaling nations vis-a-vis whaling states.740 The fundamental benefit of nuclear weapons to national security has ensured that the ideology of non-proliferation has been deeply entrenched in the policies of NWS.

Political Harmonisation and Legal Integration (3): The Link between the Community of Interest and Legitimation Goal

When the community of interest of a subsequent treaty includes the members of the original treaty’s community of interest, their legitimation goals could be expected to coincide. Therefore, the CTBT and FMT (both of which include the NWS in their communities of interest) both have as their legitimation goal to seek to enhance national

739 H.E. Gillian Bird. Ambassador and Permanent Representative of Australia to the United Nations “Statement on the Humanitarian Consequences of Nuclear Weapons,” The Ninth Review of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, (April 30, 2015): 3. On behalf of 25 other NNWS. 740 Shirley V. Scott, “The International Convention for the Regulation of Whaling and the Introduction of a Moratorium on Commercial Whaling” in The Political Interpretation of Multilateral Treaties, (Leiden: Martinus Nijhoff, 2004): 133, 141.

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security by having better weaponry than their adversaries. More specifically for the CTBT, the goal of the powerful states can be interpreted as being to seek to be able to conduct testing but for no-one else to be allowed to do so. Under the FMT, they sought to preserve the power asymmetry created by the NPT and to include outlier states so that fissile material production can be limited. If the community of interest and the legitimation goal do not coincide, it is likely to be difficult for the subsequent treaty to politically harmonise with the original. It is here that we most clearly see the manifestation of the power structure in subsequent treaties as well as the incorporation into the subsequent treaty of a goal allowing the powerful to continue to pursue that which would otherwise be curtailed by the treaty.

It was clear in Chapter Five on comprehensive approaches that the legitimation goal of the subsequent treaty conflicted with that of the original. This was perhaps unsurprising considering that members of the community of interest for the original NPT and subsequent TPNW differed significantly. The US, USSR and UK primarily drove the NPT negotiation process and their unspoken goal was to ‘enhance national security by having better weaponry than one’s potential adversaries’.741 In contrast, the community of interest driving management of the issue of mutual concern for the TPNW is made up of NNWS supported by NGOs.

It would not be unreasonable to presume that parties seeking a comprehensive treaty to disarm, dismantle and eliminate nuclear weapons would share a goal that conflicts with that of the original treaty. The legitimation goal that the community of interest for the TPNW may inadvertently seek could well be to replace the NPT. In accordance with CSC theory, this goal is veiled and is not overtly stated. It is clear that an instrument that primarily curtails horizontal proliferation while not advancing disarmament is no longer sufficient for the TPNW community of interest. Previous applications of CSC theory have not brought this tenet to the fore in considering intra-regime treaty relationships.

Relation to Structures of Power

This thesis has repeatedly referred to the fact that the NPT confirmed a particular structure of power relationships. An effort has been made to determine whether a

741 Ibid.,164.

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subsequent treaty challenges this power structure. This effect is rarely articulated in International Law literature. International Relations literature that distils complex interactions to ‘simply power’ explanations also fails to account for the nuanced nature of this phenomenon. There is little doubt that the original treaty, the NPT, has been durable. It solidified the power structure established by the UN Charter as well as the veto power afforded to five states in the United Nations Security Council. At both its entry into force and indefinite extension stages, the NPT reiterated the principle of differentiation, allowing certain states to be treated differently under international law.742

Coupled with the obligations set out in Article VI of the NPT, the differentiation principle has created a dynamic that has operated politically via initiation followed by rejection of disarmament treaties subsequent to the NPT. NWS have both maintained and defended their advantageous position, while NNWS have simultaneously railed against it and accepted the security benefits they derive from the legitimation of NWS arsenals. The tension between acceptance and rejection of the differentiation principle characterises subsequent disarmament treaty initiatives and the regime more generally. Preservation of the divide, and hence, retention of the existing power structure, has in each case made it more likely that a subsequent treaty will open for signature. Any subsequent treaty seeking to reverse or alter the established power structure has been deemed a threat to the stability of both the regime and the international security environment at large and is unlikely to bring the NWS on board.

The NPT is buffeted by transgressions on the part of NNWS such as Iran and outlier states such as India, Pakistan, Israel and, most recently, North Korea—a state whose withdrawal from the treaty remains disputed among UN member states.743 The power structure maintains allegiance to the original treaty and does not advocate for a comprehensive replacement treaty to address inequities and fallibilities—though a step- by-step approach to disarmament might be welcome. In this way, power and law are linked. The power structure recognises that additional agreements are warranted to

742 NPT, Article IX(3). 743 UNODA, “Treaty on the Non-Proliferation of Nuclear Weapons: Status of the Treaty,” http://disarmament.un.org/treaties/t/npt. ‘On 10 January 2003, the Democratic People’s Republic of Korea (DPRK) announced its withdrawal from the Treaty in a public statement. State parties to the Treaty continue to express divergent views regarding the status of the DPRK under the NPT.’

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manage specific security-related issues such as testing and fissile material production. They work through the pre-negotiation and negotiation processes to ascertain interests and influence preferences of the international community at large. The interpretive process that CSC offers fosters clearer understanding and recognition of the power structure’s determining effect and, more broadly, the politics of the international legal process.

A treaty to ban nuclear weapons has been concluded and now awaits ratification by 50 states to enter into force.744 Chapter Five examined the process by which the ‘Ban treaty’ built on the draft NWC and also how consensus to a legal ban was galvanised by a series of conferences on the humanitarian consequences of nuclear weapons.745 The UNGA then convened ‘a conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading to their total elimination’.746 NWS have deliberately refused to engage with this process and middle powers and NATO countries, those deriving security benefit from NWS security assurances, have also abstained from the ‘Ban treaty’ process. A bifurcation of the nuclear order is now apparent, and scholars are considering ways to build convergence between the ‘Ban treaty’ and NPT, particularly in advance of the 2020 NPT review conference.747 The effect of the power structure is amplified and the ramifications of the ‘Ban treaty’ are being explored. Beyond simple retention of the divide between haves and have-nots, Chapter Five also highlighted the glaring tension between the non-proliferation and disarmament ideologies.

744ICAN, “Signature/Ratification Status of the Treaty on the Prohibition of Nuclear Weapons,” http://www.icanw.org/status-of-the-treaty-on-the-prohibition-of-nuclear-weapons/. As at June 1, 2018: 58 signatories, 10 state parties (ratifications). 745 Humanitarian Consequences of Nuclear Weapons Conferences: Oslo (2013), Nayarit (2014) and Vienna (2014). 746UNGA, Taking Forward Multilateral Negotiations, A/C.1/71/L.41 Para. 8 747 Tariq Rauf, “Building Bridges to Effective Nuclear Disarmament: Recommendations for the 2020 Review Process for the Treaty on the Non-Proliferation of Nuclear Weapons: Recommendations of the Group of Eminent Persons for Substantive Advancement of Nuclear Disarmament,” Atomic Reporters, (April 19, 2018): 3-4. http://www.atomicreporters.com/wp- content/uploads/2018/04/GEM-SAG-Report-Atomic-Reporters_RAUF-pr-18-04-18.pdf.; John Tilemann, “Harmonizing the NPT and the Nuclear Ban Treaty,” Workshop Report ‘Closing the Gap: Harmonizing the NPT and the Nuclear Ban Treaty’ Asia Pacific Leadership Network, European Leadership Network, Toda Peace Institute (Seoul: ROK, March 22-23, 2018): 9- 12.

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Theoretical Significance

Through application of CSC theory, we have begun to create a framework for analysing and understanding the reasons why a subsequent treaty may fail to harmonise or integrate with the original. Through this process, a vocabulary has been established by which to interrogate future disarmament treaties and this can provide a means by which to assess potential consequences of a proposed subsequent treaty. Interpretation was guided by a logical series of comparative and analytical steps.748 The potential exists for this same examination of original and subsequent treaties to be performed in other areas of International Law in which subsequent treaty development is stifled or stalled.749 Such analyses could be expected to contribute to literature on the expansion and fragmentation of international law,750 and is responsive to the need for treaty interpretation methods that go beyond the intention of state parties (or founding fathers)

748 On the advantages of a logical and abductive approach see: Jorg Freidrichs & Frederik Kratochwil, “On Acting and Knowing: How Pragmatism Can Advance International Relations Research and Methodology,” International Organization 63, no. 4 (Oct. 2009): 706, 709-711. 749 See for example: Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, May 5, 1992, 1673 UNTS 57. Article 15(7) of the Basel Convention promised an evaluation of the treaty’s effectiveness at a later date and a potential partial or complete ban was also included as an option; Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150; amended by the Protocol Relating to the Status of Refugees, October 4, 1967, 606 UNTS 267. There is no obligation under international law to grant asylum to refugees; states shall use their ‘best endeavours’ to grant asylum. The failed process to try and codify an obligation for states began with GA Res.1400 (XIV), 21 September 1959 and the UN Declaration on Territorial Asylum of 1967. This led to the first draft Convention on Territorial Asylum in 1972 and was followed by United Nations Conference on Territorial Asylum in Geneva in 1977, which failed to adopt a text. See: Phuong, C. Identifying States Responsibilities Towards Refugees and Asylum Seekers, Working Paper (http://www.esil-sedi.eu/sites/default/files/Phuong.PDF). 750 See for example: Martti Koskenniemi, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,” UNGA 58th session, April 13, 2006, A/CN.4/L.682, 12, http://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf; ILC, “Conclusions of the work of the study group on the fragmentation of international law: difficulties arising from the diversification and expansion of international law,” Yearbook of the International Law Commission II (2006), Part II; David Held and Kevin Young, “From the Financial Crisis to the Crisis of Global Governance,” in Global Governance at Risk, eds. David Held and Charles Roger (Cambridge: Polity Press, 2013), 170–172; Christopher J. Borgen, “Resolving Treaty Conflicts,” George Washington Law Review 37, no. 3 (2005): 605-606.

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school, the textual (or ordinary meaning of words) school and the teleological (or aims and objects) school.751

At the heart of this thesis is the matter of deferment of a treaty issue to a later date. This is what transpired in the negotiation phase of the NPT when, by inclusion of Article VI, agreement on disarmament was delayed.752 The act of deferral gave rise to the current situation: five decades after the original treaty entered into force, we still seek a subsequent treaty to manage an issue that was flagged as too difficult in the negotiation phase of the original. It is not uncommon for multilateral treaties to concede defeat on certain negotiating fronts and defer matters. This thesis has highlighted that the phenomenon can prove problematic for the regime over time and may even exacerbate the so-called ‘crisis of multilateralism’.753

The Future of the Nuclear Arms Control Regime

There is a gap between what NWS want to retain and what NNWS want to adapt in any treaty subsequent to the NPT. How this transition is managed will likely serve as the benchmark for success. The International Law Association’s second report on the legal aspects of nuclear disarmament supports the view that the three NPT pillars are indivisible and cannot be advanced separately.754 Interconnection of the pillars is, they say, crucial to any conclusive approach to nuclear arms control and, further, the work of the Association will continue to focus on the relationship of the three pillars.755 However, this approach fails to account for the power structure that acts to preserve itself. NWS likely prefer the pillars analogy because it masks the primacy of non-

751 See G.G. Fitzmaurice, “The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points,” British Yearbook of International Law 28 (1951): 1; Humphrey Waldock, “Law of Treaties,” Yearbook of the International Law Commission (1964), 53 and Maarten Bos, “Theory and Practice of Treaty Interpretation,” Netherlands International Law Review 27 (1980): 1–15. 752 NPT, Article VI. 753 See for example: G. John Ikenberry. “The Future of Multilateralism: Governing the World in a Post-Hegemonic Era,” Japanese Journal of Political Science 16, no.3, (September 2015): 408- 410.; Marc Saxer, “Multilateralism in Crisis? Global Governance in the Twenty-First Century,” in Thomas Renard & Sven Biscop eds. The European Union and Emerging Powers in the 21st Century: How Europe Can Shape a New Global Order, (New York: Routledge, 2012) 62- 65. 754 International Law Association, “Second Report: Legal Aspects of Nuclear Disarmament,” Washington Conference, Nuclear Weapons, Non-Proliferation and Contemporary International Law (2014): 17. 755 Ibid.,

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proliferation by painting all three pillars as of equal weight. This thesis has consistently shown this to be untrue.756

Since work on this doctoral project began, the issue of harmonisation and integration between original and subsequent treaties has come to the fore. At the 2018 Bridging the Gap workshop, the problem of a bifurcated nuclear order was identified as resulting from the tension between competing approaches to disarmament that are inherent in the original NPT and subsequent TPNW.757 Experts have suggested ways to work towards convergence, such as changing the approach to deterrence.758 Through application of CSC theory, this thesis has demonstrated that working around the margins is unlikely to yield results.

The subsequent ‘Ban treaty’ and original NPT do not harmonise politically nor integrate legally, even though the preamble of the TPNW asserts complementarity.759 There is a fundamental conflict between the foundation ideology of the NPT and that of the TPNW, the latter of which constitutes the basis on which the TPNW is built.760 Article 18 of the TPNW prevents the subsequent treaty from legally integrating with the NPT by failing to recognise non-proliferation aspects of the original treaty and choosing to only assimilate disarmament and peaceful-use obligations.761 ‘Ban treaty’ advocates may seek to garner support for the TPNW through the assertion that the TPNW will complement the original treaty but this analysis has shown the potential for it to

756 While demonstrating an awareness of debates in the literature. See for example: Joyner and Graham Jr. in relation to Wulf; Shafer in relation to Ford. 757 Tilemann, “Harmonizing the NPT and the Nuclear Ban Treaty,” 9- 12.; 758 Ibid.,10, see also: Manpreet Sethi, “The Ban Treaty and Non-NPT Nuclear-Armed States – Can India Make a Difference?” APLN/CNND Policy Brief No. 47 (October, 2017): 1-3, 9. 759 TPNW preamble para. 18. “Reaffirming also that the full and effective implementation of the Treaty on the Non-Proliferation of Nuclear Weapons, which serves as the cornerstone of nuclear disarmament and non-proliferation regime, has a vital role to play in promoting international peace and security” 760 Some might call it a Kelsenian clash, drawing on Kelsen’s pure theory of law and the notion of what ‘ought’ to be and what is. Andrei Marmour, “Pure Theory of Law,” Stanford Encyclopedia of Philosophy, (January, 2016): 2. https://plato.stanford.edu/entries/lawphil-theory/ Accessed June 1, 2018. 761 TPNW Article 18. “The implementation of this Treaty shall not prejudice obligations undertaken by State parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty.”

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undermine the NPT. How these treaty-based challenges regarding the appropriate governance of nuclear weapons will be overcome remains to be seen.

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Table 5. Cognitive Structures of Cooperation (CSC) Components for the Non-Proliferation Treaty (NPT) and Subsequent Treaties: The Comprehensive Test Ban Treaty (CTBT), the Nuclear Weapons Convention (NWC), the Treaty to Manage Fissile Material (FMT) and the Treaty for the Prohibition of Nuclear Weapons (TPNW)

CSC Term Explanation762 NPT Component CTBT Component NWC Component FMT Component TPNW Component

Community Those participants US, USSR (former), State parties to the UNGA, Costa Rica, State party members NNWS parties of interest who express an UK, France, China, NPT with NWS as Malaysia and ICAN of the CD, particularly bolstered by civil interest in Ireland, state party ‘higher-stake (IALANA, INESAP India, Pakistan, society organisations. participating in members of UNGA participants’. and IPPNW). France and the US.

221 resolution of the issue First Committee.

under consideration.

CSC issue The issue with which Who will manage the How can the NPT be An international legal Establishment of the How can all states, the treaty was issue of nuclear indefinitely extended? mandate prompted the GGE in 2012 to regardless of their established to deal; the weapons and how will drafting of the NWC satisfy the 1995 outlier, nuclear or issue to which the this be done? by civil society Shannon Mandate (to non-nuclear status, treaty is a response. experts to prove it bring state parties to multilaterally ban and could be done. the negotiating table) eliminate nuclear led to the 2015 French weapons? draft.

762 Scott, The Political Interpretation of Multilateral Treaties, 13–17. 221

CSC Term Explanation762 NPT Component CTBT Component NWC Component FMT Component TPNW Component

Legitimation The self-interested, All states want to To preserve the Currently Preserve asymmetry Currently goal competitive goal that enhance national legitimacy of the inconclusive; the created by the original inconclusive; the negotiating states had security by having NWS/NNWS divide legitimation goal for treaty and include community of interest in common that gave better weapons than established by the NPT can apply: To outlier states in the does not appear to rise to the perceived their potential NPT by only allowing have better weaponry subsequent treaty so have a masked goal. need for a regime. The adversaries. NWS to conduct than one’s potential fissile material NNWS may seek to legitimation goal testing. adversaries. production is limited replace or supplant the provides restraint to and managed. NPT by enforcing the 222

unchecked pursuit of second-level treaty state policy. obligation embedded in it.

Foundation A principle (or set of Further horizontal Nuclear weapons Transparent and equal Further horizontal Elimination of all ideology interrelated principles) proliferation of testing increases treatment of all states’ proliferation as a nuclear weapons will alluded to in the nuclear weapons security dangers and nuclear arsenals would result of fissile reduce security preamble that would increase furthers horizontal reduce security material production dangers. underpins and unifies security dangers. proliferation; ending it dangers by enabling would increase the agreed cognitive will enhance peace, complete and general security dangers. structure by which to disarmament and non- disarmament. manage the issue of proliferation mutual concern. objectives.

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CSC Term Explanation762 NPT Component CTBT Component NWC Component FMT Component TPNW Component

CSC The nub of what state States with nuclear States will no longer Nuclear weapons will States will not Prohibit nuclear solution parties will do to weapons must not physically test nuclear be de-alerted, produce fissile weapons and provide address the issue that help others acquire weapons nor assist dismantled and material for certain measures for the has come to threaten them: those without others to do so. An destroyed in a timed nuclear military verified, time-bound their pursuit of the them must not acquire international and transparent activities and states and irreversible legitimation goal them. monitoring system manner. will declare and report elimination of nuclear (usually succinctly established by states on all production weapons programs.

223 stated within the first will operate to verify facilities and fissile

four substantive nuclear explosions. material use and provisions of the possession. treaty).

CSC myth Reinforces the The NPT is a The CTBT is a first The abolition of Knowledge is power: The abolition of foundation ideology safeguard against step towards nuclear weapons is a A fissile material nuclear weapons is a and is accepted as a nuclear war. disarmament. safeguard against treaty that quantifies safeguard against basis for action by the nuclear accident or fissile material nuclear accident or CSC members war. production and war. (though rarely storage levels will articulated). control nuclear weapons development.

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Appendices

APPENDIX ONE: THE TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS (NPT)

The States concluding this Treaty, hereinafter referred to as the Parties to the Treaty,

Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples,

Believing that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war,

In conformity with resolutions of the United Nations General Assembly calling for the conclusion of an agreement on the prevention of wider dissemination of nuclear weapons,

Undertaking to co-operate in facilitating the application of International Atomic Energy Agency safeguards on peaceful nuclear activities,

Expressing their support for research, development and other efforts to further the application, within the framework of the International Atomic Energy Agency safeguards system, of the principle of safeguarding effectively the flow of source and special fissionable materials by use of instruments and other techniques at certain strategic points,

Affirming the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties to the Treaty, whether nuclear-weapon or non-nuclear- weapon States,

Convinced that, in furtherance of this principle, all Parties to the Treaty are entitled to participate in the fullest possible exchange of scientific information for, and to contribute alone or in co-operation with other States to, the further development of the applications of atomic energy for peaceful purposes,

Declaring their intention to achieve at the earliest possible date the cessation of the nuclear arms race and to undertake effective measures in the direction of nuclear disarmament,

Urging the co-operation of all States in the attainment of this objective,

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Recalling the determination expressed by the Parties to the 1963 Treaty banning nuclear weapons tests in the atmosphere, in outer space and under water in its Preamble to seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and to continue negotiations to this end,

Recalling that, in accordance with the Charter of the United Nations, States must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, and that the establishment and maintenance of international peace and security are to be promoted with the least diversion for armaments of the world’s human and economic resources,

Have agreed as follows:

Article I

Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

Article II

Article III

1. Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this Article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such

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facility. The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.

2. Each State Party to the Treaty undertakes not to provide: (a) source or special fissionable material, or (b) equipment or material especially designed or prepared for the processing, use or production of special fissionable material, to any non-nuclear- weapon State for peaceful purposes, unless the source or special fissionable material shall be subject to the safeguards required by this Article.

3. The safeguards required by this Article shall be implemented in a manner designed to comply with Article IV of this Treaty, and to avoid hampering the economic or technological development of the Parties or international co-operation in the field of peaceful nuclear activities, including the international exchange of nuclear material and equipment for the processing, use or production of nuclear material for peaceful purposes in accordance with the provisions of this Article and the principle of safeguarding set forth in the Preamble of the Treaty.

4. Non-nuclear-weapon States Party to the Treaty shall conclude agreements with the International Atomic Energy Agency to meet the requirements of this Article either individually or together with other States in accordance with the Statute of the International Atomic Energy Agency. Negotiation of such agreements shall commence within 180 days from the original entry into force of this Treaty. For States depositing their instruments of ratification or accession after the 180-day period, negotiation of such agreements shall commence not later than the date of such deposit. Such agreements shall enter into force not later than eighteen months after the date of initiation of negotiations.

Article IV

1. Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.

2. All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also co-operate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear- weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.

Article V

Each Party to the Treaty undertakes to take appropriate measures to ensure that, in accordance with this Treaty, under appropriate international observation and through appropriate international procedures, potential benefits from any peaceful applications of nuclear explosions will be made available to non-nuclear-weapon States Party to the

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Treaty on a non-discriminatory basis and that the charge to such Parties for the explosive devices used will be as low as possible and exclude any charge for research and development. Non-nuclear-weapon States Party to the Treaty shall be able to obtain such benefits, pursuant to a special international agreement or agreements, through an appropriate international body with adequate representation of non-nuclear-weapon States. Negotiations on this subject shall commence as soon as possible after the Treaty enters into force. Non-nuclear-weapon States Party to the Treaty so desiring may also obtain such benefits pursuant to bilateral agreements.

Article VI

Article VII

Nothing in this Treaty affects the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories.

Article VIII

1. Any Party to the Treaty may propose amendments to this Treaty. The text of any proposed amendment shall be submitted to the Depositary Governments which shall circulate it to all Parties to the Treaty. Thereupon, if requested to do so by one-third or more of the Parties to the Treaty, the Depositary Governments shall convene a conference, to which they shall invite all the Parties to the Treaty, to consider such an amendment.

2. Any amendment to this Treaty must be approved by a majority of the votes of all the Parties to the Treaty, including the votes of all nuclear-weapon States Party to the Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency. The amendment shall enter into force for each Party that deposits its instrument of ratification of the amendment upon the deposit of such instruments of ratification by a majority of all the Parties, including the instruments of ratification of all nuclear- weapon States Party to the Treaty and all other Parties which, on the date the amendment is circulated, are members of the Board of Governors of the International Atomic Energy Agency. Thereafter, it shall enter into force for any other Party upon the deposit of its instrument of ratification of the amendment.

3. Five years after the entry into force of this Treaty, a conference of Parties to the Treaty shall be held in Geneva, Switzerland, in order to review the operation of this Treaty with a view to assuring that the purposes of the Preamble and the provisions of the Treaty are being realised. At intervals of five years thereafter, a majority of the Parties to the Treaty may obtain, by submitting a proposal to this effect to the Depositary Governments, the convening of further conferences with the same objective of reviewing the operation of the Treaty.

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Article IX

1. This Treaty shall be open to all States for signature. Any State which does not sign the Treaty before its entry into force in accordance with paragraph 3 of this Article may accede to it at any time.

2. This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America, which are hereby designated the Depositary Governments.

3. This Treaty shall enter into force after its ratification by the States, the Governments of which are designated Depositaries of the Treaty, and forty other States signatory to this Treaty and the deposit of their instruments of ratification. For the purposes of this Treaty, a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967.

4. For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or accession.

5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification or of accession, the date of the entry into force of this Treaty, and the date of receipt of any requests for convening a conference or other notices.

6. This Treaty shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations.

Article X

1. Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.

2. Twenty-five years after the entry into force of the Treaty, a conference shall be convened to decide whether the Treaty shall continue in force indefinitely, or shall be extended for an additional fixed period or periods. This decision shall be taken by a majority of the Parties to the Treaty.1

Article XI

This Treaty, the English, Russian, French, Spanish and Chinese texts of which are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Treaty shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.

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IN WITNESS WHEREOF the undersigned, duly authorized, have signed this Treaty.

DONE in triplicate, at the cities of London, Moscow and Washington, the first day of July, one thousand nine hundred and sixty-eight.

Note: On 11 May 1995, in accordance with article X, paragraph 2, the Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons decided that the Treaty should continue in force indefinitely (see decision 3). [back to the text]

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APPENDIX TWO: THE COMPREHENSIVE TEST BAN TREATY

The Comprehensive Test Ban Treaty is 191 pages. Only the Preamble and Article 1 are reproduced in this appendix. For the complete treaty text please see: https://www.ctbto.org/fileadmin/content/treaty/treaty_text.pdf

PREAMBLE

The States Parties to this Treaty (hereinafter referred to as "the States Parties"),

Welcoming the international agreements and other positive measures of recent years in the field of nuclear disarmament, including reductions in arsenals of nuclear weapons, as well as in the field of the prevention of nuclear proliferation in all its aspects,

Underlining the importance of the full and prompt implementation of such agreements and measures,

Convinced that the present international situation provides an opportunity to take further effective measures towards nuclear disarmament and against the proliferation of nuclear weapons in all its aspects, and declaring their intention to take such measures,

Stressing therefore the need for continued systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goal of eliminating those weapons, and of - 2- general and complete disarmament under strict and effective international control,

Further recognizing that an end to all such nuclear explosions will thus constitute a meaningful step in the realization of a systematic process to achieve nuclear disarmament,

Convinced that the most effective way to achieve an end to nuclear testing is through the conclusion of a universal and internationally and effectively verifiable comprehensive nuclear test-ban treaty, which has long been one of the highest priority objectives of the international community in the field of disarmament and non- proliferation,

Noting the aspirations expressed by the Parties to the 1963 Treaty Banning Nuclear Weapon Tests in the -3- Atmosphere, in Outer Space and Under Water to seek to achieve the discontinuance of all test explosions of nuclear weapons for all time,

Noting also the views expressed that this Treaty could contribute to the protection of the environment,

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Have agreed as follows:

ARTICLE I BASIC OBLIGATIONS

1. Each State Party undertakes not to carry out any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control.

2. Each State Party undertakes, furthermore, to refrain from causing, encouraging, or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion.

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APPENDIX THREE: TREATY BANNING THE PRODUCTION OF FISSILE MATERIAL FOR NUCLEAR WEAPONS OR OTHER NUCLEAR EXPLOSIVE DEVICES

PREAMBLE The States Parties to this Treaty (hereinafter referred to as the “States Parties”),

Stressing the need for continued systematic and progressive efforts to reduce the quantity of nuclear weapons globally, with the ultimate goal of eliminating those weapons, and of general and complete disarmament under strict and effective international control,

Desiring to contribute to the realisation of the purposes and principles of the Charter of the United Nations,

Welcoming the international agreements and other positive measures already taken in the field of nuclear disarmament, notably continued efforts to reduce arsenals of nuclear weapons and the banning of nuclear weapon test explosions and other nuclear explosions,

Underlining the importance of the full and prompt implementation of such agreements and measures,

Further underlining the need to continue the efforts undertaken to tackle effectively the proliferation of weapons of mass destruction and their means of delivery in all its aspects,

Recognising that final cessation of the production of fissile materials for nuclear weapons and other nuclear explosive devices, that is legally binding and universally applicable will establish an overall quantitative limit on nuclear arsenals,

Considering the complementarity of that effort with the cessation of all nuclear weapon test explosions and all other nuclear explosions, the aim of which is to constrain the development and qualitative improvement of nuclear weapons and end the development of advanced new types of nuclear weapons,

Convinced that a multilateral, non-discriminatory and international and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices is a necessary step towards the realisation of the ultimate objective of a world without nuclear weapons and will contribute greatly to

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disarmament and non- proliferation of nuclear weapons in the context of a gradual and systematic approach,

Commending the work done in the context of the Conference on Disarmament with a view to the prompt commencement of negotiations for such a treaty, and recalling in particular document CD/1299 of 24 March 1995 in which all the Member States of the Conference on Disarmament agreed upon the mandate for negotiation of a treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices,

Welcoming the discussions of the Group of Governmental Experts established by Resolution 67/53 of the General Assembly of the United Nations to make recommendations on aspects likely to contribute to the negotiation of a treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices, and taking note of its recommendations,

Affirming the purpose of attracting the adherence of all States to this Treaty, Have agreed as follows:

ARTICLE 1

Object and purpose of the Treaty

Each State Party to this Treaty is prohibited, from the date of entry into force of the Treaty for it, from the production of fissile material for nuclear weapons or other nuclear explosive devices.

ARTICLE 2 Definitions

For the purposes of this Treaty: 1. “Fissile material” means:

• a) Uranium enriched to 20% or more in isotope 235 or 233;

• b) Separated plutonium containing less than 80% of isotope 238;

• c) Any unirradiated material containing the materials defined in a) or b).

2. “Production of fissile material” means:

. a) Isotopic enrichment of uranium to a level equal to or greater than 20% in U235 or U233;

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. b) Separation of the fissile materials defined in paragraph 1 of this Article through operations to reprocess irradiated or unirradiated nuclear fuels.

3. “Fissile material production facilities”, hereinafter referred to as “production facilities” means: a) Uranium enrichment facilities where production capacities are above a threshold of [XXX]; b) Nuclear fuel reprocessing facilities where production capacities are above a threshold 1 of [YYY] ;

4. “Closed-down facility” means any facility where production activities have been stopped and from which nuclear materials have been withdrawn, but where production capacities remain intact.

1 The thresholds set out in paragraphs 3(a) and 3(b) shall be defined during treaty negotiations.

5. “Decommissioned facility” means any facility where the structures and equipment essential for operation have been withdrawn or disabled for any use whatsoever of the facility (storage, processing or any other use of the facility).

6. “Dismantled facility” means any facility having reached the final stage of the decommissioning process through destruction of all equipment.

ARTICLE 3

Basic obligations

1. Each State Party undertakes, from the date of entry into force of this Treaty for it, to cease all production of fissile material for nuclear weapons or other nuclear explosive devices and to refrain from using the materials produced thereafter for nuclear weapons or other nuclear explosive devices.

The provisions contained in this paragraph are without prejudice to the right of the States Parties to continue producing fissile materials for civilian uses or, in compliance with Article 6, military nuclear activities not prohibited by the Treaty.

2. In order to fulfil the commitment made under paragraph 1 of this Article, each State Party undertakes:

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a) To permanently close-down and, insofar as possible, dismantle its facilities for the production of fissile materials for nuclear weapons or other nuclear explosive devices; or, b) To convert them to civilian uses.

3. Each State Party is under the obligation to agree to verification of compliance with its commitments under paragraphs 1 and 2 of this Article, subject to the conditions laid down by Article 5 of this Treaty and in accordance with the procedures detailed in an annex to the Treaty on verification.

4. Each State Party undertakes to declare all production facilities, subject to the conditions set out in Article 5.

ARTICLE 4 Organization

A. General provisions

1. The States Parties hereby establish the Organization of the Treaty Banning the Production of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices (hereinafter referred to as the “Organization”) to achieve the object and purpose of this Treaty, to ensure implementation of its provisions, including those for international verification of compliance with the Treaty, and to provide a forum for consultation and cooperation among the States Parties. All States Parties shall be members of the Organization. A State Party shall not be deprived of its membership in the Organization.

2. There are hereby established as organs of the Organization the Conference of the States Parties, the Executive Council and the Technical Secretariat.

3. The Organization shall enjoy on the territory of any State Party such legal capacity and such privileges and immunities as are necessary for the exercise of its functions.

The representatives of the States Parties, and their deputies and advisors, the Director- General and members of staff of the Organization shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

The legal capacity, privileges and immunities referred to in this Article shall be defined in an annex to this Treaty, in agreements between the Organization and the States Parties and in an agreement between the Organization and the State in which the

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Organization is seated. The Conference shall consider and approve such agreements in accordance with paragraph 14 of this Article.

4. The costs of the activities of the Organization shall be met biannually by the States Parties in accordance with the United Nations scale of assessments adjusted to take into account differences in membership between the United Nations and the Organization. The budget of the Organization shall comprise two distinct sections, one devoted to administrative and other expenses, and the other to expenses relating to verification.

B. The Conference of the States Parties

5. The Conference of the States Parties (hereinafter referred to as “the Conference”) shall be composed of all States Parties. Each State Party shall have one representative in the Conference, who may be accompanied by alternates and advisers.

6. The first session of the Conference shall be convened by the Depositary not later than 30 days after the entry into force of this Treaty. The Conference shall meet in regular sessions which shall be held every two years unless it decides otherwise.

7. Special sessions of the Conference shall be convened: a) When decided by the Conference; orb) When requested by the Executive Council; orc) When requested by any State Party and supported by two-thirds of the States

Parties.

8. The Conference may also be convened in the form of an Amendment Conference in accordance with Article 11, or in the form of a Review Conference in accordance with paragraph 9 of this Article.

9. Unless a majority of the States Parties decides otherwise, ten years after the entry into force of this Treaty, a Conference of the States Parties shall be convened in order to review the operation and effectiveness of the Treaty. This review shall take into account any scientific and technological developments relevant to the Treaty. At intervals of ten years thereafter, unless otherwise decided upon, further sessions of the Conference shall be convened with the same objective.

10. Each member of the Organization shall have one vote in the Conference.

11. The Conference shall take decisions on questions of procedure by a simple majority of the members present and voting. Decisions on matters of substance should be taken

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as far as possible by consensus. If consensus is not attainable, the Conference shall take the decision by a two-thirds majority of members present and voting.

12. The Conference shall be the principal organ of the Organization. In compliance with the provisions of the Treaty, it shall consider and may make recommendations on all questions, matters or issues within the scope of this Treaty, including those relating to the powers and functions of the Executive Council and the Technical Secretariat.

13. The Conference shall oversee the implementation of the Treaty and examination of compliance with its provisions, and shall act in order to promote its object and purpose. It shall also oversee the activities of the Executive Council, whose members it shall elect in accordance with paragraph 15 of this Article, and the Technical Secretariat, of which it shall appoint the Director-General, and it may issue guidelines to either of them for the exercise of their functions.

14. As part of its functions, the Conference shall examine and approve agreements and arrangements negotiated by the Technical Secretariat with the States Parties, other States and international organizations to be concluded by the Executive Council on behalf of the Organization.

C. The Executive Council

2 15. The Executive Council shall consist of [ZZZ] members elected by the Conference. Each State Party shall have the right, in accordance with the principle of rotation, to serve on the Executive Council, whose membership shall reflect an equitable geographical distribution.

16. Each member of the Executive Council shall have one vote. Unless otherwise specified in this Treaty, the Executive Council shall take decisions on matters of substance by a two- thirds majority of all its members.

17. The Executive Council shall be the executive organ of the Organization. It shall be responsible to the Conference. It shall carry out the powers and functions entrusted to it

2 The number of States on the Executive Council shall be determined during Treaty negotiations. For your information, the IAEA Board of Governers has 34 members and the OPCW Executive Council has 41 members.

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under this Treaty. In so doing, it shall act in conformity with the recommendations, decisions and guidelines of the Conference and assure their proper implementation. The Executive Council shall promote the effective implementation of, and compliance with, this Treaty. It shall supervise the activities of the Technical Secretariat.

18. The Executive Council, subject to prior approval by the Conference, is empowered to conclude agreements or arrangements between the Organization and States Parties, other States and international organizations whose activity is relevant to that of the Organization.

D. The Technical Secretariat

19. The Technical Secretariat shall assist the States Parties in implementing this Treaty. It shall assist the Conference and the Executive Council in the performance of their functions under the Treaty. It shall carry out the verification functions and other functions entrusted to it under the Treaty as well as those delegated to it by the Conference and the Executive Council in compliance with Treaty provisions.

20. The Technical Secretariat shall comprise a Director-General, who shall be its head and chief administrative officer. Staff shall be kept to the minimum necessary for the proper discharge of the responsibilities of the Technical Secretariat.

21. The Technical Secretariat shall be established on a provisional basis, subject to the terms and conditions laid down in an annex to this Treaty, from the date of adoption of the Treaty up to its entry into force, in order to begin the negotiation with the International Atomic Energy Agency (IAEA) of a draft cooperation agreement for submission to the Conference at its first session and to the Council at its first meeting.

ARTICLE 5

Verification

1. In order to verify compliance with the provisions of this Treaty, a verification regime shall be established with the aims of: a) Certifying the closing-down and, if appropriate, the dismantling or conversion to civilian uses of facilities for the production of fissile material for weapons or other nuclear explosive devices; b) Verifying that fissile material produced after the entry into force of this Treaty in facilities declared under Article 3 of this Treaty and paragraph 4 of this Article is not diverted to nuclear weapons or other nuclear explosive devices;

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c) Assuring the States Parties that no fissile material is being produced in undeclared facilities.

2. The verification regime shall be based on: a system to verify the accuracy and completeness of declarations made under paragraphs 4 and 5 of this Article, consultation and clarification, and on-site inspections.

3. The implementation procedures for this Article are given in an annex on verification. 4. Any fissile material production facility shall be subject to the verification regime.

For this purpose, each State Party shall declare all its production facilities. The facilities to be declared under this paragraph are facilities that are operating, as well as any closed- down facility, any decommissioned facility or facility that has been or is being dismantled.

Each State Party shall submit to the Technical Secretariat, within sixty days from the entry into force of this Treaty for it, an initial declaration providing the information listed in the annex on verification to this Treaty. The time-frames and terms for declaration of new production facilities and updating of information provided in the initial declaration are given in the aforementioned annex.

5. All fissile material produced after the entry into force of this Treaty shall be declared to the Technical Secretariat.

For this purpose, each State Party shall submit to the Technical Secretariat an account of the fissile material held in declared facilities.

6. As regards the verification activities to be carried out under this Article and the annex on verification, the Organization shall examine ways to avoid those activities duplicating those provided for by the agreements concluded between the States Parties and the IAEA for the purposes of implementing safeguards.

For this purpose, the Executive Council shall decide to limit verification to measures supplementing those undertaken under the safeguards agreements concluded between the States Parties and the IAEA where it observes that:

. a) The provisions of the safeguards agreement of the State in question are compatible with the corresponding provisions of this Article and of the annex on verification; and

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. b) Implementation of the agreement provides a sufficient guarantee of compliance 3 with the relevant provisions of this Treaty; and

. c) The IAEA keeps the Organization fully informed of its verification activities.

For the purposes of the implementation of this Article and the annex on verification, the 4 Organization shall conclude a cooperation agreement with the IAEA.

3 The Executive Council may thus decide that the combined, satisfactory implementation of a comprehensive safeguards agreement and additional protocol provides a sufficient guarantee of compliance with the provisions of this Treaty and that it is therefore unnecessary to subject the State Party in question to additional verification.

4 This agreement shall also specify the funding by the Organization of the verification activities carried out by the IAEA in relation with this Treaty.

7. Nothing in paragraph 6 of this Article shall affect the obligation of a State Party to submit to the Technical Secretariat the declarations mentioned in paragraphs 4 and 5 of this Article and in the annex on verification.

8. Verification activities shall be based on objective information, limited to the subject of this Treaty and carried out in full respect of the sovereignty of the States Parties and in the least intrusive manner possible compatible with achieving their aims with the desired efficiency and time-frame.

Verification activities shall be carried out so as to be compatible with the following requirements:

. a) The need to prevent the transfer or acquisition of information that is sensitive from the point of view of the proliferation of nuclear weapons;

. b) The preservation of the security interests of the States Parties;

. c) The protection of industrial, technological and commercial secrets.

9. In the framework of verification activities, each State Party shall have the right to take measures to protect sensitive facilities and prevent disclosure of confidential information and data not related to this Treaty.

10. At the request of a State Party, the Technical Secretariat and the State Party concerned shall make arrangements to manage access to all or part of a production

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facility or any other civilian or military structure to which access is requested for the purposes of verification. These arrangements shall be detailed in specific agreements between the Organization and the State Party in question.

11. All desired measures shall be taken by the Organization to protect the confidentiality of all information concerning civilian and military facilities and activities obtained during verification activities.

12. Without prejudice to paragraphs 8 to 10 of this Article, each State Party commits to cooperating with the Technical Secretariat. It shall take all the necessary measures, including those specified in the annex on verification, to ensure that the Technical Secretariat can effectively carry out its functions.

ARTICLE 6

Unprohibited military nuclear activities

1. Each State Party shall have the right, after the entry into force of this Treaty and without prejudice to its provisions, to continue producing fissile material for military nuclear activities not prohibited by this Treaty.

2. Each State Party shall adopt the necessary measures to ensure that the fissile material produced for unprohibited military nuclear activities is used solely for purposes not prohibited by the Treaty. To this end, and to guarantee that its activities are compliant with its obligations under this Treaty, each State Party shall submit to verification measures. Those measures shall be given in a specific protocol on the verification of unprohibited military nuclear activities.

ARTICLE 7

National Implementation Measures

1. Each State Party shall, in accordance with its constitutional processes, take all necessary measures to implement its obligations under this Treaty. In particular, it shall take any necessary measures: a) To prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction or control from undertaking any activity from which State Parties are prohibited under this Treaty; b) To prohibit, in conformity with international law, natural persons possessing its nationality from undertaking any such activity anywhere.

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2. Each State Party shall inform the Organization of the measures taken pursuant to this Article.

3. In order to fulfil its obligations under the Treaty, each State Party shall designate or set up a National Authority and shall so inform the Organization upon entry into force of the Treaty for it. The National Authority shall serve as the national focal point for liaison with the Organization and with the other States Parties.

ARTICLE 8

Specific measures to redress a situation and ensure compliance with this Treaty

1. Each State Party may inform the Technical Secretariat, on the basis of substantiated information, of any situation giving cause for concern with regard to the compliance of another State Party with its basic undertakings under this Treaty. The Secretariat shall examine and assess such matters in the light of all the information available to it as received from the IAEA or other sources.

2. Where there is serious concern regarding a State Party’s compliance with its basic obligations under this Treaty, the Technical Secretariat and the State Party concerned shall consult together immediately. Following those consultations, the Director-General, on the basis of the information gathered by the Secretariat, may request the State Party concerned, independently of any recourse to dispute settlement procedures, to provide clarifications or take promptly any other measures that may be necessary to clarify the situation and facilitate its resolution. The Director-General shall inform the Executive Council accordingly. The provisions in the preceding paragraph shall apply in all cases of serious concern felt by the Technical Secretariat, whether such concern has arisen from information received from a State Party and evaluated in accordance with paragraph 1, or in connection with the verification activities provided for by Article 5 of the Treaty and the annex on verification.

3. The State Party concerned shall provide clarifications promptly to the Director- General.

4. In the absence of any response from the State Party concerned or in the event that the clarifications provided fail to clarify the situation, the Director-General may initiate a challenge inspection or any other particular measure he may deem to be necessary to clarify the situation. He shall at the same time inform

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accordingly the Executive Council, which may oppose his decision by a three- quarters majority.

The Director-General cannot oppose an explicit request from a State Party for the performance of a challenge inspection on the territory of another State Party unless he or she is able to demonstrate that the request is abusive or frivolous.

5. The details of the procedure to be followed in the event of the performance of a challenge inspection in the State Party concerned are defined in the annex on verification.

6. The Executive Council, acting in accordance with its powers and functions, shall consider the inspection report and all other relevant documents relating to the situation that it may receive in compliance with the annex on verification, and shall determine whether the Treaty has been violated.

7. The Executive Council shall urge the State concerned to put an end forthwith to any violation whose existence is confirmed. It shall bring the issue, including relevant information and conclusions, to the attention of the Security Council of the United Nations and inform the General Assembly of the United Nations.

8. The Executive Council, acting in accordance with is powers and functions, may make detailed recommendations to the Conference on appropriate measures within its remit, with a view to redressing the situation and ensuring compliance with this Treaty.

9. The Conference, taking into account the recommendations of the Executive Council, shall take the necessary measures, as mentioned in paragraphs 10 and 11 of this Article, to ensure compliance with the provisions of this Treaty and to redress or rectify any situation violating the provisions of this Treaty.

10. In cases where a State Party which has been requested by the Conference or the Executive Council to take measures to redress a situation raising issues with regard to its compliance fails to fulfil the request within the specified time, the Conference may decide to restrict or suspend the exercise, by that State, of the rights and privileges it enjoys under this Treaty until such time as the Conference decides otherwise.

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11. In cases where prejudice to the object and purpose of this Treaty is likely to occur due to non-compliance with the basic obligations established by it, the Conference may recommend collective measures to States Parties in conformity with international law.

ARTICLE 9

Transparency and confidence-building measures

For the purpose of strengthening transparency and confidence, the States Parties concerned:

1. commit, upon entry into force of this Treaty for them, to declaring to the Organization the stockpiles of fissile material constituted for civilian uses prior to the entry into force of this Treaty. They shall submit that material to the verification measures provided for by this Treaty in Article 5 and in the annex on verification.

2. may, on a voluntary basis, declare to the Organization, upon entry into force of this Treaty for them or at any later date, fissile material produced prior to the entry into force of this Treaty for nuclear weapons or other nuclear explosive devices and which is excess to their defence needs. The States Parties concerned commit to conserving or using the declared material for civilian nuclear activities or military nuclear activities not prohibited by this Treaty only. They shall submit this material for verification under the conditions stipulated in this Treaty or, at the request of the State Party concerned, in specific agreements between it and the Organization.

3. are encouraged to provide the Organization with information on fissile material production facilities where production capacities are below the thresholds set out in Article 2 of this Treaty.

ARTICLE 10

Settlement of disputes

1. Disputes that may arise concerning the application or the interpretation of this Treaty shall be settled in accordance with the provisions of this Article and in conformity with the provisions of the Charter of the United Nations.

2. When a dispute arises between two or more States Parties, or between one or more States Parties and the Organization, relating to the application or interpretation of this

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Treaty, the Parties concerned shall consult together with a view to the expeditious settlement of the dispute by negotiation or by other peaceful means of the Parties' choice, including recourse to appropriate organs of this Treaty and, by mutual consent, referral to the International Court of Justice in conformity with the Statute of the Court. The States Parties involved shall keep the Executive Council informed of actions being taken.

3. The Executive Council may contribute to the settlement of a dispute by whatever means it deems appropriate, including offering its good offices, calling upon the States Parties to a dispute to seek a settlement through a process of their own choice and recommending a time-limit for any agreed procedure.

4. The Conference shall consider questions related to disputes raised by States Parties or brought to its attention by the Executive Council.

5. The Conference and the Executive Council are separately empowered, subject to authorisation from the General Assembly of the United Nations, to request the International Court of Justice to give an advisory opinion on any legal question arising within the scope of the activities relating to this Treaty. An agreement between the Organization and the United Nations shall be concluded for this purpose in accordance with Article 4, paragraph 18.

6. The provisions of this Article are without prejudice to those of Article 8 of the Treaty.

ARTICLE 11

Amendments

1. At any time after the entry into force of this Treaty, any State Party may propose amendments to the Treaty or to its annexes or protocol.

2. The proposed amendment shall be considered and adopted only by an Amendment Conference.

3. Any proposal for an amendment shall be communicated to the Director-General, who shall circulate it to all States Parties and the Depositary and seek the views of the States Parties on whether an Amendment Conference should be convened to consider the proposal. If a majority of the States Parties notify the Director-General no later than 30 days after its circulation that they support further consideration of the proposal, the

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Director-General shall convene an Amendment Conference to which all States Parties shall be invited.

4. The Amendment Conference shall be held immediately following a regular session of the Conference unless all States Parties that support the convening of an Amendment Conference request that it be held at an earlier date. An Amendment Conference shall not, under any circumstances, be held less than 60 days after the circulation of the proposed amendment.

5. The States Parties shall make every effort to facilitate a consensus on each amendment. If no agreement is reached despite those efforts, the amendment shall be put to a vote as a last resort. It shall be adopted by a positive vote of a majority of all States Parties with no State Party casting a negative vote.

6. All amendments adopted in conformity with paragraph 5 shall enter into force for each State Party that has deposited an instrument of acceptance of that amendment 90 days after the majority of the States that were States Parties to the Treaty at the time of the adoption of the amendment have deposited their instruments with the Depositary. It shall enter into force thereafter for all other State Parties 90 days after deposit of the instrument of acceptance of the amendment.

ARTICLE 12

Entry into force and duration of the Treaty

1. The Treaty shall enter into force on the date of its ratification by the States that have concluded voluntary offer safeguards agreements with the IAEA on the date of its adoption.

2. The Treaty shall be of unlimited duration.

ARTICLE 13 Signature, ratification, accession

1. This Treaty shall be open to all States for signature before its entry into force.

2. This Treaty shall be subject to ratification by States Signatories according to their respective constitutional processes.

3. Any State which does not sign this Treaty before its entry into force may accede to it at any time thereafter.

ARTICLE 14

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Withdrawal

1. Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of the Treaty have jeopardised its supreme interests.

Any State Party intending to withdraw from the Treaty shall give notice of that intention in writing to the Depositary, to the Executive Council, to all States Parties to this Treaty and to the Security Council of the United Nations. Notice of withdrawal shall include a statement of the extraordinary events which the State concerned regards as jeopardising its supreme interests.

Withdrawal shall take effect 180 days from the date of receipt by the Depositary of the aforementioned notice. This time period cannot be shortened in any way by the State Party notifying its intention to withdraw.

2. On receipt of the notice of withdrawal, the Executive Council shall mandate the Technical Secretariat to submit to it within three months a report containing its evaluation of the status of the withdrawing State Party’s compliance with its obligations under this Treaty.

3. On receipt of the notice of withdrawal by the Executive Council, the Technical Secretariat shall convene a special session of the Conference of States Parties within three months to allow the latter to consider the appropriate reaction, individual or collective, to that notice.

4. States Parties that are members of the Security Council shall also promptly take all appropriate measures for referral of the matter to the Security Council of the United Nations.

5. Withdrawal shall have no effect on any right, obligation or legal position of the withdrawing Party created by the performance of this Treaty prior to the date at which the withdrawal takes effect. The withdrawing State Party shall continue to be liable for any violation of the Treaty committed prior to its withdrawal. All goods, equipment, materials, nuclear materials, technology and facilities transferred prior to the withdrawal and able to be used for purposes prohibited by this Treaty must be used, following withdrawal, exclusively for civilian purposes. The goods, equipment, materials, nuclear materials, technology and facilities referred to in this paragraph shall remain under IAEA safeguards at all times following withdrawal.

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6. As part of the individual measures for which provision is made in paragraph 3 of this Article, any State Party having transferred prior to withdrawal goods, equipment, materials, nuclear materials, technology and facilities able to be used for purposes prohibited by this Treaty may request their restitution or dismantling. If the State concerned does not make this request, or if restitution and dismantling are not materially possible, the aforementioned goods, equipment, materials, nuclear materials, technology and facilities shall remain under IAEA safeguards at all times following withdrawal, in compliance with paragraph 5 of this Article.

ARTICLE 15

Status of the annexes and the protocol

The annexes of this Treaty and the protocol form an integral part of the Treaty. Any reference to this Treaty includes the annexes and the protocol.

ARTICLE 16

Depositary

1. The Secretary-General of the United Nations shall be the Depositary of this Treaty and shall receive signatures, instruments of ratification and instruments of accession.

2. The Depositary shall promptly inform all States Signatories and acceding States of the date of each signature, the date of deposit of each instrument of ratification or accession, the date of the entry into force of this Treaty and of any amendments and changes thereto, and the receipt of any other notices.

3. The Depositary shall provide duly certified copies of this Treaty to the Governments of the States Signatories and acceding States.

4. This Treaty shall be registered by the Depositary pursuant to Article 102 of the Charter of the United Nations.

ARTICLE 17 Authentic texts

This Treaty, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

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APPENDIX FOUR: THE MODEL NUCLEAR WEAPONS CONVENTION

The Model Nuclear Weapons Convention is 91 pages. Only the preamble and article 1 are reproduced in this appendix. For the complete treaty text please see: http://lcnp.org/mnwc/CostaRica.pdf

Model Nuclear Weapons Convention on the Prohibition of the Development, Testing, Production, Stockpiling, Transfer, Use and Threat of Use of Nuclear Weapons and on Their Elimination

April 2007

Preamble

We the people of the Earth, through the States Parties to this Convention:

Convinced that the existence of nuclear weapons poses a threat to all humanity and that their use would have catastrophic consequences for all the creatures of this Earth;

Noting that the destructive effects of nuclear weapons upon life on earth are uncontrollable whether in time or space; Aware that amongst weapons of mass destruction, the abolition of which is recognized as being in the collective security interest of all people and States, nuclear weapons are unprecedented and unequalled in destructive potential;

Affirming that the inherent dignity and equal and inalienable rights of all members of the human family include the right to life, liberty, peace and the security of person;

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Convinced that all countries have an obligation to make every effort to achieve the goal of eliminating nuclear weapons, the terror which they hold for humankind and the threat which they pose to life on Earth;

Recognizing that numerous regions, including Antarctica, Outer Space, Latin America, the Sea Bed, the South Pacific, Southeast Asia, Africa, and Central Asia have already been established as nuclear weapon free zones, where possession, production, development, deployment, use and threat of use of nuclear weapons are forever prohibited, and desiring to extend this benefit to the entire planet for the good of all life;

Determined to eliminate the risks of environmental pollution by radioactive waste and other radioactive matter associated with nuclear weapons and to ensure that the bounty and beauty of the Earth shall remain the common heritage of all of us and our descendants in perpetuity to be enjoyed by all in peace;

Recognizing the universal need for environmentally safe, sustainable energy;

Gravely concerned that the use of nuclear weapons may be brought about not only intentionally by war or terrorism, but also through human or mechanical error or failure, and that the very existence and gravity of these threats of nuclear weapons use generates a climate of suspicion and fear which is antagonistic to the promotion of universal respect for and observance of the human rights and fundamental freedoms set forth in the Charter of the United Nations and the Universal Declaration of Human Rights;

Convinced of the serious threats posed to the environment by nuclear arsenals, the economic and social costs and waste of intellectual talent occasioned by these arsenals and the efforts required to prevent their use, the dangers inherent in the existence of the materials used to make nuclear weapons and the attendant problems of proliferation, the medically and psychologically catastrophic effects of any use of a nuclear weapon, the potential effects of mutations on the genetic pool and numerous other risks associated with nuclear weapons;

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Welcoming the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, as indications of a progression toward the elimination of all weapons of mass destruction;

Recognizing that all life is sacred and that there is a moral imperative to eliminate all weapons of mass destruction;

Welcoming the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, as an indication of progress towards the prohibition and elimination of weapons which are indiscriminate and cause unnecessary suffering;

Welcoming also the Rome Statute of the International Criminal Court, in particular the recognition of individual responsibility for crimes involved in employing weapons which cause unnecessary suffering or which are inherently indiscriminate;

Believing that the threat and use of nuclear weapons is incompatible with civilized norms, standards of morality and humanitarian law which prohibit the use of inhumane weapons and those with indiscriminate effects;

Recalling Resolution 1(I), adopted unanimously on January 24, 1946 at the First Session of the General Assembly of the United Nations, and the many subsequent resolutions of the United Nations which call for the elimination of atomic weapons;

Recalling also the Final Document of the United Nations First Special Session of the General Assembly on Disarmament 1978, which calls for the elimination of nuclear weapons;

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Mindful of the solemn obligations of States made in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons to end the nuclear arms race at an early date and achieve nuclear disarmament, and to further commitments on specific steps to achieve nuclear disarmament in the “Principles and Objectives for Nuclear Non-Proliferation and Disarmament” " agreed in 1995, and the “Practical steps for the systematic and progressive efforts to implement Article VI of the Treaty on the NonProliferation of Nuclear Weapons” agreed in 2000;

Convinced that the elimination of nuclear weapons is an important step towards the goal of general and complete disarmament;

Welcoming the advisory opinion of the International Court of Justice of July 8, 1996, which concluded “that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law”, and concluded unanimously that “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”;

Recalling United Nations General Assembly resolutions 51/45 M, of 10 December 1996, 52/38 O of 9 December 1997, 53/77 W of 4 December 1998, 54/54 Q of 1 December 1999, 55/33 X of 20 November 2000, 56/24 S of 29 November 2001, 57/85 of 22 November 2002, 58/46 of 8 December 2003, 59/83 of 3 December 2004, 60/76 of 8 December 2005, and 61/83 of 6 December 2006 which underline the nuclear disarmament obligation affirmed by the International Court of Justice and call “upon all States to fulfil that obligation immediately by commencing multilateral negotiations … leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination”;

Convinced that a convention prohibiting the development, testing, production, stockpiling, transfer, use and threat of use of nuclear weapons and providing for their elimination is required to abolish these weapons from the Earth;

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Have agreed as follows:

I. General Obligations

A. State Obligations

1. Each State Party to this Convention undertakes never under any circumstances:

a. To use or threaten to use nuclear weapons;

b. To engage in any military or other preparations to use nuclear weapons;

c. To develop, test, produce, otherwise acquire, deploy, stockpile, maintain, retain, or transfer nuclear weapons except as specified under paragraph 4 of this Article;

d. To develop, test, produce, otherwise acquire, stockpile, retain, transfer or use proscribed nuclear material except as specified under paragraph 4 of this Article;

e. To develop, test, produce, otherwise acquire, deploy, stockpile, maintain, retain, or transfer nuclear weapons delivery vehicles;

f. To develop, test, produce, otherwise acquire, stockpile, maintain, retain, or transfer nuclear weapon components or equipment as specified in this Convention;

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g. To fund [or conduct] nuclear weapons research, with the exception of nuclear disarmament research;

h. To assist, encourage, induce or permit, in any way, directly or indirectly, anyone to engage in any activity prohibited under this Convention.

2. Each State Party undertakes:

a. To destroy all nuclear weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention;

b. To destroy all nuclear weapons it abandoned on the territory of another State, in accordance with the provisions of this Convention;

c. To submit all nuclear facilities to preventive controls;

d. To destroy all nuclear weapons facilities it owns or possesses, or that are located in any place under its jurisdiction or control, or to convert such facilities to weapons destruction facilities or other facilities not prohibited by this Convention;

e. [To disable or destroy all facilities, systems or sub-systems designed or used in the command or control of nuclear weapons, or convert such facilities, systems or subsystems to purposes not prohibited under this Convention;]

f. To destroy or convert for purposes not prohibited under this Convention all nuclear weapons delivery vehicles and nuclear weapon components;

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g. To place all special nuclear material under preventive controls as specified in this Convention;

h. To participate in good faith in activities aimed at the promotion of transparency with respect to nuclear weapons and related technologies and the promotion of education for the purposes of detecting and preventing activities prohibited under this Convention;

i. To report violations of this Convention to the Agency [and to cooperate to the fullest with the Agency’s investigative, monitoring and verification functions;] [and to provide to the Agency all information requested by the Agency for the purposes of implementing this Convention, except such information as may be with-held for legitimate international or national security or trade secret concerns;]

j. To enact all domestic legislation necessary for the implementation of this Convention.

3. These obligations shall apply equally to nuclear explosive devices intended for peaceful purposes.

4. These obligations shall not be interpreted to prohibit activities consistent with the application and implementation of the provisions of this Convention [including but not limited to transfer of nuclear weapons, special nuclear material, and nuclear weapons delivery vehicles for the purpose of their destruction or disposal, and nuclear disarmament research and verification thereof].

B. Obligations of Persons

5. The following acts are crimes for which persons shall be held responsible regardless of their position, residence, citizenship or country of incorporation:

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a. To engage or attempt to engage in any acts listed in subparagraphs 1.a through 1.g, inclusive, of this Article;

b. To aid, abet, or otherwise assist, in any way, anyone to engage in any activity prohibited under this Convention.

6. The fact that the present Convention provides criminal responsibility for individuals does not affect the responsibility of States under international law.

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APPENDIX FIVE: 2017 TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS

TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS

The States Parties to this Treaty,

Determined to contribute to the realization of the purposes and principles of the Charter of the United Nations,

Cognizant that the catastrophic consequences of nuclear weapons cannot be adequately addressed, transcend national borders, pose grave implications for human survival, the environment, socioeconomic development, the global economy, food security and the health of current and future generations, and have a disproportionate impact on women and girls, including as a result of ionizing radiation,

Mindful of the unacceptable suffering of and harm caused to the victims of the use of nuclear weapons (hibakusha), as well as of those affected by the testing of nuclear weapons,

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Recognizing the disproportionate impact of nuclear-weapon activities on indigenous peoples,

Reaffirming the need for all States at all times to comply with applicable international law, including international humanitarian law and international human rights law,

Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, the rule of distinction, the prohibition against indiscriminate attacks, the rules on proportionality and precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment,

Considering that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law,

Reaffirming that any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience,

Recalling also the first resolution of the General Assembly of the United Nations, adopted on 24 January 1946, and subsequent resolutions which call for the elimination of nuclear weapons,

Concerned by the slow pace of nuclear disarmament, the continued reliance on nuclear weapons in military and security concepts, doctrines and policies, and the waste of economic and human resources on programmes for the production, maintenance and modernization of nuclear weapons,

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Recognizing that a legally binding prohibition of nuclear weapons constitutes an important contribution towards the achievement and maintenance of a world free of nuclear weapons, including the irreversible, verifiable and transparent elimination of nuclear weapons, and determined to act towards that end,

Determined to act with a view to achieving effective progress towards general and complete disarmament under strict and effective international control,

Reaffirming that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control,

Reaffirming also that the full and effective implementation of the Treaty on the Non- Proliferation of Nuclear Weapons, which serves as the cornerstone of the nuclear disarmament and non-proliferation regime, has a vital role to play in promoting international peace and security,

Recognizing the vital importance of the Comprehensive Nuclear-Test-Ban Treaty and its verification regime as a core element of the nuclear disarmament and non- proliferation regime,

Reaffirming the conviction that the establishment of the internationally recognized nuclear-weapon-free zones on the basis of arrangements freely arrived at among the States of the region concerned enhances global and regional peace and security, strengthens the nuclear non-proliferation regime and contributes towards realizing the objective of nuclear disarmament,

Emphasizing that nothing in this Treaty shall be interpreted as affecting the inalienable right of its States Parties to develop research, production and use of nuclear energy for peaceful purposes without discrimination,

Recognizing that the equal, full and effective participation of both women and men is an essential factor for the promotion and attainment of sustainable peace and security, and committed to supporting and strengthening the effective participation of women in nuclear disarmament,

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Recognizing also the importance of peace and disarmament education in all its aspects and of raising awareness of the risks and consequences of nuclear weapons for current and future generations, and committed to the dissemination of the principles and norms of this Treaty,

Stressing the role of public conscience in the furthering of the principles of humanity as evidenced by the call for the total elimination of nuclear weapons, and recognizing the efforts to that end undertaken by the United Nations, the International Red Cross and Red Crescent Movement, other international and regional organizations, non- governmental organizations, religious leaders, parliamentarians, academics and the hibakusha,

Have agreed as follows:

Article 1 Prohibitions

1. Each State Party undertakes never under any circumstances to:

(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;

(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;

(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;

(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;

(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;

(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.

Article 2 Declarations

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1. Each State Party shall submit to the Secretary-General of the United Nations, not later than 30 days after this Treaty enters into force for that State Party, a declaration in which it shall:

(a) Declare whether it owned, possessed or controlled nuclear weapons or nuclear explosive devices and eliminated its nuclear-weapon programme, including the elimination or irreversible conversion of all nuclear-weapons-related facilities, prior to the entry into force of this Treaty for that State Party;

(b) Notwithstanding Article 1 (a), declare whether it owns, possesses or controls any nuclear weapons or other nuclear explosive devices;

(c) Notwithstanding Article 1 (g), declare whether there are any nuclear weapons or other nuclear explosive devices in its territory or in any place under its jurisdiction or control that are owned, possessed or controlled by another State.

2. The Secretary-General of the United Nations shall transmit all such declarations received to the States Parties.

Article 3 Safeguards

1. Each State Party to which Article 4, paragraph 1 or 2, does not apply shall, at a minimum, maintain its International Atomic Energy Agency safeguards obligations in force at the time of entry into force of this Treaty, without prejudice to any additional relevant instruments that it may adopt in the future.

2. Each State Party to which Article 4, paragraph 1 or 2, does not apply that has not yet done so shall conclude with the International Atomic Energy Agency and bring into force a comprehensive safeguards agreement (INFCIRC/153 (Corrected)). Negotiation of such agreement shall commence within 180 days from the entry into force of this Treaty for that State Party. The agreement shall enter into force no later than 18 months from the entry into force of this Treaty for that State Party. Each State Party shall thereafter maintain such obligations, without prejudice to any additional relevant instruments that it may adopt in the future.

Article 4Towards the total elimination of nuclear weapons

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1. Each State Party that after 7 July 2017 owned, possessed or controlled nuclear weapons or other nuclear explosive devices and eliminated its nuclear-weapon programme, including the elimination or irreversible conversion of all nuclear- weapons-related facilities, prior to the entry into force of this Treaty for it, shall cooperate with the competent international authority designated pursuant to paragraph 6 of this Article for the purpose of verifying the irreversible elimination of its nuclear- weapon programme. The competent international authority shall report to the States Parties. Such a State Party shall conclude a safeguards agreement with the International Atomic Energy Agency 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. Negotiation of such agreement shall commence within 180 days from the entry into force of this Treaty for that State Party. The agreement shall enter into force no later than 18 months from the entry into force of this Treaty for that State Party. That State Party shall thereafter, at a minimum, maintain these safeguards obligations, without prejudice to any additional relevant instruments that it may adopt in the future.

2. Notwithstanding Article 1 (a), each State Party that owns, possesses or controls nuclear weapons or other nuclear explosive devices shall immediately remove them from operational status, and destroy them as soon as possible but not later than a deadline to be determined by the first meeting of States Parties, in accordance with a legally binding, time-bound plan for the verified and irreversible elimination of that State Party’s nuclear-weapon programme, including the elimination or irreversible conversion of all nuclear-weapons-related facilities. The State Party, no later than 60 days after the entry into force of this Treaty for that State Party, shall submit this plan to the States Parties or to a competent international authority designated by the States Parties. The plan shall then be negotiated with the competent international authority, which shall submit it to the subsequent meeting of States Parties or review conference, whichever comes first, for approval in accordance with its rules of procedure.

3. A State Party to which paragraph 2 above applies shall conclude a safeguards agreement with the International Atomic Energy Agency 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 the State as a

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whole. Negotiation of such agreement shall commence no later than the date upon which implementation of the plan referred to in paragraph 2 is completed. The agreement shall enter into force no later than 18 months after the date of initiation of negotiations. That State Party shall thereafter, at a minimum, maintain these safeguards obligations, without prejudice to any additional relevant instruments that it may adopt in the future. Following the entry into force of the agreement referred to in this paragraph, the State Party shall submit to the Secretary-General of the United Nations a final declaration that it has fulfilled its obligations under this Article.

4. Notwithstanding Article 1 (b) and (g), each State Party that has any nuclear weapons or other nuclear explosive devices in its territory or in any place under its jurisdiction or control that are owned, possessed or controlled by another State shall ensure the prompt removal of such weapons, as soon as possible but not later than a deadline to be determined by the first meeting of States Parties. Upon the removal of such weapons or other explosive devices, that State Party shall submit to the Secretary-General of the United Nations a declaration that it has fulfilled its obligations under this Article.

5. Each State Party to which this Article applies shall submit a report to each meeting of States Parties and each review conference on the progress made towards the implementation of its obligations under this Article, until such time as they are fulfilled.

6. The States Parties shall designate a competent international authority or authorities to negotiate and verify the irreversible elimination of nuclear-weapons programmes, including the elimination or irreversible conversion of all nuclear- weapons-related facilities in accordance with paragraphs 1, 2 and 3 of this Article. In the event that such a designation has not been made prior to the entry into force of this Treaty for a State Party to which paragraph 1 or 2 of this Article applies, the Secretary-General of the United Nations shall convene an extraordinary meeting of States Parties to take any decisions that may be required.

Article 5 National implementation

1. Each State Party shall adopt the necessary measures to implement its obligations under this Treaty.

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2. Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Treaty undertaken by persons or on territory under its jurisdiction or control.

Article 6Victim assistance and environmental remediation

1. Each State Party shall, with respect to individuals under its jurisdiction who are affected by the use or testing of nuclear weapons, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender- sensitive assistance, without discrimination, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.

2. Each State Party, with respect to areas under its jurisdiction or control contaminated as a result of activities related to the testing or use of nuclear weapons or other nuclear explosive devices, shall take necessary and appropriate measures towards the environmental remediation of areas so contaminated.

3. The obligations under paragraphs 1 and 2 above shall be without prejudice to the duties and obligations of any other States under international law or bilateral agreements.

Article 7International cooperation and assistance

1. Each State Party shall cooperate with other States Parties to facilitate the implementation of this Treaty.

2. In fulfilling its obligations under this Treaty, each State Party shall have the right to seek and receive assistance, where feasible, from other States Parties.

3. Each State Party in a position to do so shall provide technical, material and financial assistance to States Parties affected by nuclear-weapons use or testing, to further the implementation of this Treaty.

4. Each State Party in a position to do so shall provide assistance for the victims of the use or testing of nuclear weapons or other nuclear explosive devices.

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5. Assistance under this Article may be provided, inter alia, through the United Nations system, international, regional or national organizations or institutions, non- governmental organizations or institutions, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies, or national Red Cross and Red Crescent Societies, or on a bilateral basis.

6. Without prejudice to any other duty or obligation that it may have under international law, a State Party that has used or tested nuclear weapons or any other nuclear explosive devices shall have a responsibility to provide adequate assistance to affected States Parties, for the purpose of victim assistance and environmental remediation.

Article 8 Meeting of States Parties

1. The States Parties shall meet regularly in order to consider and, where necessary, take decisions in respect of any matter with regard to the application or implementation of this Treaty, in accordance with its relevant provisions, and on further measures for nuclear disarmament, including:

• (a) The implementation and status of this Treaty;

• (b) Measures for the verified, time-bound and irreversible elimination of nuclear-weapon programmes, including additional protocols to this Treaty;

2. The first meeting of States Parties shall be convened by the Secretary- General of the United Nations within one year of the entry into force of this Treaty. Further meetings of States Parties shall be convened by the Secretary-General of the United Nations on a biennial basis, unless otherwise agreed by the States Parties. The meeting of States Parties shall adopt its rules of procedure at its first session. Pending their adoption, the rules of procedure of the United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination, shall apply.

3. Extraordinary meetings of States Parties shall be convened, as may be deemed necessary, by the Secretary-General of the United Nations, at the written request of any

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State Party provided that this request is supported by at least one third of the States Parties.

4. After a period of five years following the entry into force of this Treaty, the Secretary-General of the United Nations shall convene a conference to review the operation of the Treaty and the progress in achieving the purposes of the Treaty. The Secretary-General of the United Nations shall convene further review conferences at intervals of six years with the same objective, unless otherwise agreed by the States Parties.

5. States not party to this Treaty, as well as the relevant entities of the United Nations system, other relevant international organizations or institutions, regional organizations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organizations, shall be invited to attend the meetings of States Parties and the review conferences as observers.

Article 9 Costs

1. The costs of the meetings of States Parties, the review conferences and the extraordinary meetings of States Parties shall be borne by the States Parties and States not party to this Treaty participating therein as observers, in accordance with the United Nations scale of assessment adjusted appropriately.

2. The costs incurred by the Secretary-General of the United Nations in the circulation of declarations under Article 2, reports under Article 4 and proposed amendments under Article 10 of this Treaty shall be borne by the States Parties in accordance with the United Nations scale of assessment adjusted appropriately.

3. The cost related to the implementation of verification measures required under Article 4 as well as the costs related to the destruction of nuclear weapons or other nuclear explosive devices, and the elimination of nuclear-weapon programmes, including the elimination or conversion of all nuclear-weapons-related facilities, should be borne by the States Parties to which they apply.

Article 10 Amendments

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1. At any time after the entry into force of this Treaty, any State Party may propose amendments to the Treaty. The text of a proposed amendment shall be communicated to the Secretary-General of the United Nations, who shall circulate it to all States Parties and shall seek their views on whether to consider the proposal. If a majority of the States Parties notify the Secretary-General of the United Nations no later than 90 days after its circulation that they support further consideration of the proposal, the proposal shall be considered at the next meeting of States Parties or review conference, whichever comes first.

2. A meeting of States Parties or a review conference may agree upon amendments which shall be adopted by a positive vote of a majority of two thirds of the States Parties. The Depositary shall communicate any adopted amendment to all States Parties.

3. The amendment shall enter into force for each State Party that deposits its instrument of ratification or acceptance of the amendment 90 days following the deposit of such instruments of ratification or acceptance by a majority of the States Parties at the time of adoption. Thereafter, it shall enter into force for any other State Party 90 days following the deposit of its instrument of ratification or acceptance of the amendment.

Article 11 Settlement of disputes

1. When a dispute arises between two or more States Parties relating to the interpretation or application of this Treaty, the parties concerned shall consult together with a view to the settlement of the dispute by negotiation or by other peaceful means of the parties’ choice in accordance with Article 33 of the Charter of the United Nations.

2. The meeting of States Parties may contribute to the settlement of the dispute, including by offering its good offices, calling upon the States Parties concerned to start the settlement procedure of their choice and recommending a time limit for any agreed procedure, in accordance with the relevant provisions of this Treaty and the Charter of the United Nations.

Article 12 Universality

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Each State Party shall encourage States not party to this Treaty to sign, ratify, accept, approve or accede to the Treaty, with the goal of universal adherence of all States to the Treaty.

Article 13 Signature

This Treaty shall be open for signature to all States at United Nations Headquarters in New York as from 20 September 2017.

Article 14Ratification, acceptance, approval or accession

This Treaty shall be subject to ratification, acceptance or approval by signatory States. The Treaty shall be open for accession.

Article 15 Entry into force

1. This Treaty shall enter into force 90 days after the fiftieth instrument of ratification, acceptance, approval or accession has been deposited.

2. For any State that deposits its instrument of ratification, acceptance, approval or accession after the date of the deposit of the fiftieth instrument of ratification, acceptance, approval or accession, this Treaty shall enter into force 90 days after the date on which that State has deposited its instrument of ratification, acceptance, approval or accession.

Article 16 Reservations

The Articles of this Treaty shall not be subject to reservations.

Article 17 Duration and withdrawal

. This Treaty shall be of unlimited duration.

. Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of the Treaty have jeopardized the supreme interests of its country. It shall give

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notice of such withdrawal to the Depositary. Such notice shall include a statement of the extraordinary events that it regards as having jeopardized its supreme interests.

3. Such withdrawal shall only take effect 12 months after the date of the receipt of the notification of withdrawal by the Depositary. If, however, on the expiry of that 12- month period, the withdrawing State Party is a party to an armed conflict, the State Party shall continue to be bound by the obligations of this Treaty and of any additional protocols until it is no longer party to an armed conflict.

Article 18 Relationship with other agreements

Article 19 Depositary

The Secretary-General of the United Nations is hereby designated as the Depositary of this Treaty.

Article 20 Authentic texts

The Arabic, Chinese, English, French, Russian and Spanish texts of this Treaty shall be equally authentic.

DONE at New York, this seventh day of July, two thousand and seventeen.

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