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The Treaty on the Prohibition of Nuclear Weapons - A Commentary by Casey-Maslen, Stuart (5th February 2019)

The Articles of the Treaty, Article 12: Universality

From: The Treaty on the Prohibition of Nuclear Weapons: A Commentary

Stuart Casey-Maslen

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 November 2019

Subject(s):
Weapons, nuclear — Specific treaties — Treaties, observance

(p. 241) Article 12: Universality

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.

Negotiations

12.01  This article of the Treaty on the Prohibition of Nuclear Weapons (2017 Treaty)1 remained largely unchanged from the text of Article 13 in the first draft of 22 May 2017, which in turn drew on a provision in the 2008 Convention on Cluster Munitions:2

Each State Party shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention.3

There was, however, one substantive change and one editorial change to this draft text. The word ‘Convention’ was replaced by ‘Treaty’, consonant with the change in the proposed title from ‘Convention on the Prohibition of Nuclear Weapons’ to ‘Treaty on the Prohibition of Nuclear Weapons’. This change was effected in the draft Treaty text of 27 June 2017.4 Substantively, the word ‘sign’ was added to the list of actions that each state party is obligated to encourage. This change was only effected late in the negotiations, in the draft text of 5 July 2017.5

(p. 242) Commentary

12.02  Under Article 12, each state party is obligated to encourage all states not party to the 2017 Treaty to sign, ratify, accept, approve, or accede to it, with the goal of achieving universality. The means by which such encouragement must occur is not specified, but presumably includes promotion of the treaty in bilateral discussions with states not party as well as in multilateral fora on disarmament, arms control, and non-proliferation. As a commentary on the corresponding provision in the 2008 Convention on Cluster Munitions suggests:

It must … be up to the States Parties themselves to decide in good faith how to carry out this obligation and whether to convey their invitation to other States to join the Convention in multilateral forums, through bilateral contacts, or both. However, the positive legal obligation on States Parties introduced by the words ‘shall encourage’ will not be satisfied if States remain silent on the matter in relevant contacts with representatives of States not party.6

Footnotes:

1  Treaty on the Prohibition of Nuclear Weapons; adopted at New York, 7 July 2017; not yet entered into force.

2  ‘Each State Party shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention.’ Art. 21(1), Convention on Cluster Munitions; adopted at Dublin, 30 May 2008; entered into force, 1 August 2010. This text, in turn, drew inspiration from a preambular paragraph to the 1997 Anti-Personnel Mine Ban Convention: ‘Emphasizing the desirability of attracting the adherence of all States to this Convention, and determined to work strenuously towards the promotion of its universalization in all relevant fora including, inter alia, the United Nations, the Conference on Disarmament, regional organizations, and groupings, and review conferences of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects . …’

3  Art. 13, Draft Convention on the Prohibition of Nuclear Weapons, UN doc. A/CONF.229/2017/CRP.1, 22 May 2017.

4  ‘Draft Treaty on the Prohibition of Nuclear Weapons’, UN doc. A/CONF.229/2017/CRP.1/Rev.1, 27 June 2017.

5  Art. 12, Draft Treaty on the Prohibition of Nuclear Weapons, UN doc. A/CONF.229/2017/L.X, undated but 5 July 2017.

6  T. R. Arntsen, ‘Article 21’, in G. Nystuen, S. Casey-Maslen, and A. Golden Bersagel (eds), Nuclear Weapons under International Law, Cambridge University Press, Cambridge, 2014, pp. 566–7. The inclusion of the provision in the 2008 Convention on Cluster Munitions was to balance the more permissive elements on interoperability with states not party. This is not the case in the 2017 Treaty.