Experts Say

Nuclear Ban Treaty Provisions

Frederick N. Mattis

Banning Weapons of Mass Destruction
October 4, 2010
By Frederick N. Mattis

Following is a summary of provisions for a treaty [convention] banning nuclear (and chem-bio) weapons worldwide. For details, plus other suggested provisions and related topics, please see the book “Banning Weapons of Mass Destruction” by Frederick N. Mattis [ISBN: 978-0-313-36538-6], published by ABC-CLIO/Praeger Security International.

1. All states must join the treaty before its entry into force, at which time it replaces today’s Cold-War era (1968) Non-Proliferation Treaty (NPT).

States such as the USA will not renounce nuclear weapons unless all states do the same, because even a small, non-threatening state might in the future undertake a nuclear weapons program—if the state is not a party to the nuclear ban. Also, with unanimity of states, the enacted treaty would have unprecedented geopolitical force, and various reasons would deter states from violating such treaty, either by an attempt at cheating or by overt “breakout.” First, by joining the treaty each state publicly accepted the obligation to abide by its provisions (once all states have joined and it enters into force). Second, and unlike today’s NPT, a workable nuclear ban would treat all states equally, and therefore any move by a state to violate the worldwide ban would likely incite opposition (and even direct revelation) from within the state itself. Third, the nuclear ban verification regime (see #10 below) would pose a substantial risk of disclosure, at the least, and thus be a psychological barrier to any move toward attempted cheating. Fourth, it would be foreseen by states that a credible report by just one actor or citizen of prohibited nuclear activity would gain nuclear ban regime attention and, if warranted, a special inspection. Fifth, it would also be foreseen that a state violating the ban would become, at minimum, the arch-political foe of the world’s other states. Sixth, ongoing treaty compliance by all states would be manifestly necessary to sustain for all states and people the nuclear ban’s benefits of freedom from nuclear war and nuclear attack, freedom from “false-alarm” nuclear strike, and virtually-eliminated risk of nuclear terrorism (see #11 below).

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

The reason for this provision is that Article 18(a) of the Vienna Convention on the Law of Treaties (the international “treaty on treaties”) adjures signatories to a treaty to “refrain from acts which would defeat the [treaty’s] object and purpose” when a state has signed or ratified a treaty but before its entry into force. This stricture, which is generally sensible, needs to be removed from applicability to a nuclear ban, because today’s nuclear powers will not relinquish their basic nuclear stance (including possible use of the weapons) except simultaneously with all other states—upon entry into force of a unanimously-joined nuclear ban treaty. (Meanwhile, though, during accumulation of all states as nuclear ban signatories, today’s NPT would still be in effect, and the vast majority of states are NPT non-nuclear weapon parties.)

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

This signifies that states would have formally renounced chem-bio weapons before the nuclear ban takes effect. (Most states, including the USA and Russia, are already parties to the chem-bio bans.) Although nuclear weapons are the most reliably, variously, and widely destructive of “WMD,” at least one state [Israel] that possesses nuclear weapons will not renounce them by joining a nuclear ban treaty if other states—being nonparties of the CWC and/or BWC—could with relative impunity create or maintain arsenals of chem-bio weapons. (See chapter 6 of “Banning Weapons of Mass Destruction” for discussion of the nuclear ban and particularly “problematic” states: North Korea, Iran, Israel, India, Pakistan, Russia.)

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

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

#5(b) and 5(e) above are thus junctures at which a single state could halt (presumably temporarily) further treaty implementation. This prerogative of states may seem curious, but it is crucial that they are satisfied of compliance with the treaty by all fellow states in enactment of adequate and treaty-consonant implementing legislation, plus in nuclear “declarations” (including cooperation in achievable baseline verification). If states could not “hold up” the treaty’s further implementation (including weapons elimination) in event of perceived, major problems with these areas, then some at least of the current nuclear powers would likely decline to join the treaty—and lacking unanimity, it would not enter into force. However, the impact of accession to the treaty by all states before entry into force would provide powerful impetus for states to meet their evolving treaty obligations, such as enactment of suitable implementing legislation and cooperation in verification of declarations.

6. All states possessing nuclear warheads, with the exception of Russia and the USA, must eliminate 25 percent of their warheads within the first 90 days of the weapons elimination period. Thereafter, states may discontinue dismantling until Russia and the USA, following the overall, time-bound elimination table, reach the varying but much lower levels of the other nuclear weapon states. [Phased warhead elimination will require some compromise by each of the nuclear powers; for details of proposed schema, see chapter 7 of “Banning Weapons of Mass Destruction.”]

7. The nuclear ban treaty does not permit withdrawal.

If, to the contrary, withdrawal is legally permitted (as with treaties in general), some states probably would not join the treaty, out of concern that a state at some time might “capriciously” (but legally, and therefore relatively easily) drop out—which would probably be followed by a few others at least, thereby eliminating the reality and benefits of a nuclear weapons-free world. Also, if withdrawal is permitted, there would be concern that a state might use a “threat,” or even mere intimation, of legal, treaty-sanctioned withdrawal to “gain concessions” from other states. (Note, however, that a state could temporarily “ignore” the treaty if and while another state flouted it; see #9 below. For further points and legalities of a “non-withdrawal” treaty, see chapter 4 of “Banning Weapons of Mass Destruction.”)

8. The enacted nuclear ban treaty pledges its signatories (all states) not to withdraw from the CWC and BWC (nor as noted from the nuclear ban—so that, since states joined the CWC and BWC as a prerequisite for signing the nuclear ban, upon the latter’s entry into force all states would be permanent parties to the three agreements banning nuclear, chemical, and biological weapons).

9. If a state under color of Article 60(2) of the Vienna Convention on the Law of Treaties ever undertakes otherwise treaty-prohibited activity pertaining to any of the three agreements (nuclear ban, CWC, BWC) because another state is in “material breach,” the former state must declare beforehand which state it arraigns as in material breach.

The above prevents a state from conducting or attempting to conduct treaty-prohibited activity in secret and later on claiming justification because “another state was in material breach.” It also confirms, although indirectly, that states would be the ultimate, sovereign determiners of whether another state was in “material breach” of the worldwide nuclear ban. If this was not the case, then some at least of today’s nuclear weapon states probably would not join, because of the “extreme” nature of nuclear weapons… In the event of material breach, to avoid world castigation and likely other consequences, a state undertaking treaty-prohibited activity (in response to the breach) would also need to present sufficient evidence to credit the charge that another state was in material breach—and such breach would be extremely unlikely to occur under the unprecedented geopolitical, legal, psychological, and moral force of a unanimously signed, non-withdrawal treaty that applies equally to all states.

10. On inspection/verification: (a) The verification regime, which is the primary responsibility of the treaty Technical Secretariat (inspectorate), includes challenge inspections that cannot be refused by state fiat or national court (but can be disallowed by three-quarters vote of nuclear ban Executive Council vote, analogously to today’s CWC regime); (b) “Full access” by inspectors is required; (c) Inspectors can temporarily declare an “exclusion zone,” to freeze a suspicious site; (d) “Safeguards” on fissionable material are extended to all states (based on today’s enhanced, “Additional Protocol” safeguards administered by the International Atomic Energy Agency); (e) IAEA recommendations for state securing of nuclear material (IAEA INFCIRC/225/Rev. 4, or any pre-treaty sequel) are integrated into the treaty as requirements for states to follow; (f) Fissionable material in transit is guarded (as against terrorist assault) by a treaty-created, international “Nuclear Protective Force”; (g) Treaty permanent Executive Council members (the pre-treaty nuclear weapon states) are entitled to maintain observation and video surveillance/communications posts outside of states’ sites holding plutonium and HEU (see #11 below) during its blending-down. (See chapter 5 of “Banning Weapons of Mass Destruction” for detailed discussion of treaty verification, plus the controversial topic of plutonium reprocessing.)

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

See elaboration in chapter 5 of “Banning Weapons of Mass Destruction.” For the USA in particular, conversion of HEU naval propulsion reactors to LEU fuel would be a big step—but necessary, in all likelihood, to achieve a nuclear weapons-free world. If, instead, nonsafeguarded HEU (in reactors of vessels at sea) was permitted, then the treaty (which must regard states equally) would also have to permit states such as North Korea to possess readily weapons-usable (by states or terrorists) and nonsafeguarded HEU. In that case, though, nuclear ban verification would be so restricted in scope that some states probably would not join the prospective treaty, and it would not enter into force.

12. The nuclear ban treaty declares that the prohibition of nuclear weapons and of undeclared, nonsafeguarded nuclear material applies everywhere, and that “future states” must abide by the treaty’s prohibitions and must promptly join the treaty.

[The provisions summarized above are predominantly in addition to—and some different from—provisions of the Model Nuclear Weapons Convention (see link to MNWC at lcnp.org). However, without the meritorious MNWC, nuclear abolition would be years further away. A finalized nuclear ban, ready for states’ signatures, will surely employ the vast majority of MNWC provisions. The provisions above and others in “Banning Weapons of Mass Destruction” are particularly advanced as helpful or necessary for gaining accession to a nuclear ban treaty by today’s nuclear weapon states.]

Contents: “Banning Weapons of Mass Destruction” [ISBN: 978-0-313-36538-6]
Ch. 1. The Landscape of Nuclear Weapons
Ch. 2. Partial Measures—De-Alerting and No First Use
Ch. 3. Nuclear Ban Entry into Force
Ch. 4. Should Withdrawal Be Permitted?
Ch. 5. Verification, Disposition of HEU, and Reprocessing
Ch. 6. Problematic States [North Korea, Iran, Israel, India, Pakistan, Russia]
Ch. 7. Weapons Elimination
Ch. 8. Superseding Today’s Non-Proliferation Treaty
Ch. 9. Prior Prohibition of Chemical and Biological Weapons
Ch. 10. “Reservations”
Ch. 11. Countering Near-Earth Objects
Ch. 12. Societal Verification
Ch. 13. Other Matters
Ch. 14. Summary
Appendix A: Analysis of the Model Nuclear Weapons Convention
Appendices B-C-D: NPT, BWC, U.S.-North Korea “Joint Statement of Principles”
Appendix E: Response to U.S. Rationale for Nuclear Weapons
Index

“Frederick N. Mattis’s book deals with a complex and deadly subject. It does so with clarity, great intelligence, and the appropriate sense of urgency. I hope it is widely read.” - Ambassador Richard Butler, former Chief U.N. Weapons Inspector in Iraq

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