By Sergio Duarte, Ambassador, former High Representative of the UN for Disarmament Affairs*
UNITED NATIONS (IDN) – A large majority of the international community, together with governmental and non-governmental organizations and institutions, achieved an important milestone in the treatment of disarmament questions by concluding a landmark Treaty on the Prohibition of Nuclear Weapons. The instrument was adopted on July 7, 2017 by 122 votes in favor, 1 against (Netherlands) and 1 abstention (Singapore).
Between March 15 to 31 and June 17 to July 7 the United Nations Conference negotiated a legally binding instrument for the prohibition of nuclear weapons leading to their elimination, in accordance with the mandate contained in General Assembly Resolution 71/278 of December 23 2017. Participants benefitted from several years of studies, proposals and initiatives taken by States, academic institutions and organizations of the civil society on means to achieve the complete elimination of nuclear weapons.
Ambassador Elayne Whyte-Gómez of Costa Rica presided over the work of the Conference and was generally praised for her ability and diplomatic skill. The Conference adopted a report to be submitted to the forthcoming Session of the General Assembly which will decide the way forward. The General Assembly is expected to adopt a resolution at its 72nd Session commending the Treaty and opening it to the signature of States as from September 20, 2017. The participants in the negotiations have every reason to believe that it will be expeditiously signed and ratified by the necessary number of States for its early entry into force.
The President submitted a first draft on March 22 and new drafts were released on June 27 and July 3 as the debates of the Conference progressed. Amendments to articles 7, 8 and 13 of the latter, based on comments by States to during the July 5 meeting were presented by the President on July 7 in document A/conf.229/2017.CRP.3. The final text of Treaty was adopted on July 7 and appears in document A/CONF.229/2017/L.3/Rev.1.
There was considerable level of convergence on the main aspects of the Treaty. Nevertheless, the debates were quite active and a large number of suggestions and proposals for changes were presented, particularly during the three weeks of the second part of the negotiations. These suggestions and proposals dealt with practically every aspect of the Treaty, but mainly with the scope of the prohibitions, methods of verification, declarations by States Party, meetings of Parties, relations with other agreements, peaceful uses, duration and conditions for withdrawal, among others.
Austria, Brazil, Ireland, Mexico, Nigeria and South Africa, which had promoted the drafting and adoption of Resolution 71/278 participated actively in the work of the Conference. Practically all delegations intervened in the debates with constructive observations and proposals, particularly Algeria, Argentina, Chile, Cuba, Ecuador, Egypt, Holy See, Guatemala, Liechtenstein, Indonesia, Iran, Malaysia, New Zealand, Philippines, Sweden, Switzerland, Thailand, Sweden, Ecuador and Switzerland.
Among the nuclear weapon possessors and their allies, the Netherlands was the only State that sent a delegation to the Conference. At the start of the work its delegation stated that it would not be able to agree to any text incompatible with the Netherlands’ obligations under NATO or with its commitments under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and explained its comments during the debate and its negative vote accordingly.
Explaining their affirmative votes, some delegates pointed out perceived shortcomings in the text but decided to support the text because of the overriding importance they attributed to the codification of a clear rejection of nuclear weapons in international law.
There was considerable discussion on many aspects of the draft Treaty. The following examples, which are not exhaustive, will suffice to give an idea of the extent and substantive depth of the debates:
a) A few States questioned the mention to the “inalienable right to nuclear energy for peaceful purposes” but it was retained in the final text;
b) Some States pressed for including an explicit prohibition of preparations, transit and financing of nuclear weapons while others considered that this was contained in the prohibition to “assist, encourage and induce” engagement in prohibited activities;
c) Others argued for more stringent standards of verification such as the Additional Protocol. In the view of some, the expression “nuclear weapons programmes” needed definition;
d) The comparative high level of detail for the accession by States possessing nuclear weapons of hosting them in their territories contained in Article 4 was the subject of long discussions and finally was considered necessary in view of the general acceptance of the “join and destroy” option;
e) Some were disappointed at the lack of a definite timeframe for the removal of nuclear weapons stationed in the territory of other States (Article 4.4) but seemed content with the expression “as soon as possible”. There is, however, no independent mechanism for the verification of compliance with this requiremenf).
f) The question of relationship with other agreements was debated at length. A proposal to include a mention to the fact that the Comprehensive Nuclear-Test-Ban Treaty (CTBT) was not yet in force received some support but did not prosper;
g) Several States criticized the final form of Article 17 on withdrawal and argued for the explicit deletion of the reference to “extraordinary events“ that may have jeopardized the “supreme interests” of a Party. Others thought it would be wise to omit mention to withdrawal in view of the Vienna Convention on the Law of Treaties on the subject. Consensus was achieved on the formulation finally adopted in paragraph 3 of Article 17, according to which withdrawal will take effect 12 months after the date of notification, with the proviso that if on the expiry of that period the withdrawing State party is engaged in armed conflict in shall continue to be bound by the obligations of the Treaty until no longer party to that conflict.
The final result of the Conference showed that the overwhelming majority of the participants were undoubtedly satisfied with the result of the process that led to the adoption of the Treaty on the Prohibition of Nuclear Weapons. Once the Treaty comes into force, all three recognized categories of weapons of mass destruction – chemical, bacteriological (biological) and nuclear – will have been banned under international law. Many pointed out that the efforts to achieve nuclear disarmament started over 70 years ago at the General Assembly, with the adoption of Resolution no. 1 in January 1946.
Categorical rejection of nuclear weapons
Most participants agree that although the Treaty may indeed have some deficiencies and shortcomings, it is the first clear expression, in positive international law, of the categorical rejection of nuclear weapons by a large section of the international community, both on moral grounds and on the humanitarian and environmental consequences of the use of such weapons and it is a welcome addition to the corpus of international law relating to disarmament, non-proliferation and international security.
The complexity of the subject matter of the Treaty and its unprecedented character explain many of the difficulties that had to be overcome by the negotiating States. The overriding desire to conclude a multilateral legally binding instrument to prohibit nuclear weapons leading to the elimination, in accordance with the mandate received from the United Nations General Assembly in the historic Resolution 71/278 of 23 December 2016, together with the encouragement and substantive contribution from governmental and non-governmental organizations, was decisive for the success of the negotiation and subsequent adoption of a negotiated text.
Even without having achieved consensus, the only negative vote came from one member of a military alliance with a nuclear weapon State that attended all the meetings of the Conference and offered detailed explanations of its views on the Treaty, including specific drafting proposals.
This should be understood as a demonstration of the interest of public opinion in matters related to nuclear disarmament, including in countries possessing nuclear weapons and those having defense agreements involving their possible use. This can also be seen as a reminder of the need for relevant governmental and civil society organizations to step up their efforts to present the case for nuclear disarmament to the public worldwide.
Much work remains to be done to achieve the desired universality of this Treaty. All participants in this historic undertaking realize that the Treaty will not achieve nuclear disarmament overnight, but it is an important and necessary first meaningful and concrete step in that direction.
Together with governmental and non-governmental organizations and institutions, that cooperated in the drafting and adoption of the instrument, civil society has an indispensable role to play in disseminating knowledge about this achievement and helping in the promotion of worldwide awareness of the risks posed by the existence of nuclear weapons and the catastrophic and unacceptable consequences of their use. Support by public opinion everywhere, including in the States that still rely on nuclear weapons for their security is indispensable for the full realization of the aims and objectives of the Treaty.
* Sergio Duarte was the UN High Representative for Disarmament Affairs with the United Nations Office for Disarmament Affairs (2007-2012). He was the President of the 2005 Seventh Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons. A career diplomat, he served the Brazilian Foreign Service for 48 years. He was the Ambassador of Brazil in a number of countries, including Austria, Croatia, Slovakia and Slovenia concurrently, China, Canada and Nicaragua. He also served in Switzerland, the United States, Argentina and Rome. [IDN-InDepthNews – 10 July 2017]
Sergio Duarte’s previous articles on IDN: http://www.indepthnews.net/index.php/opinion/1182-a-new-un-nuclear-convention-is-in-the-making
Photos: (top) Moment of UN nuclear ban treaty adoption 7th July 2017. Credit: Clare Conboy | ICAN. (left down) Sergio Duarte. Credit: James Leynse | Copyright CTBTO
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