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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 4: Towards the Total Elimination of Nuclear Weapons

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: 20 August 2019

Subject(s):
Weapons, nuclear — Specific treaties

(p. 188) Article 4: Towards the Total Elimination of Nuclear Weapons

  1. 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. 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. 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 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. 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. (p. 189) 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. 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.

Overview

4.01  Article 3 concerned safeguards for all the states parties to the Treaty on the Prohibition of Nuclear Weapons1 (2017 Treaty) that had not themselves had nuclear weapons or other nuclear explosive devices since 8 July 2017. Article 4 addresses the key disarmament obligations of nuclear-armed states parties and of states parties hosting a third state’s nuclear weapons or other nuclear explosive devices.

4.02  Nuclear-armed states parties are obligated to destroy all of their nuclear weapons or other nuclear explosive devices. They must also conclude or maintain a heightened safeguards agreement with the International Atomic Energy Agency (IAEA).2 States parties with a foreign state’s nuclear explosive devices stationed, installed, or deployed in any place under their jurisdiction or control are required to ensure their ‘prompt removal’. They are obligated under Article 3 to conclude or maintain a comprehensive safeguards agreement. The first Meeting of States Parties, to be held within one year of the 2017 Treaty’s entry into force, will determine the respective deadlines for destruction of a nuclear weapons programme and for removal of a foreign state’s nuclear weapons.

(p. 190) 4.03  Article 4 also concerns the verification of a state party that was formerly a nuclear-weapons power, requiring it to conclude a safeguards agreement with the IAEA that is sufficient to credibly assure that declared nuclear material is not diverted from peaceful nuclear activities and that no undeclared nuclear material or activities exist anywhere in that state party. The challenge of negotiating the article, in particular with contrasting views among states as to whether the 2017 Treaty should allow nuclear-armed states to ‘join and destroy’, is reflected in some of the awkward drafting.

Negotiations

4.04  The first draft of the Treaty of 22 May 2017 predominantly reflected the ‘destroy and join’ approach, whereby a nuclear-weapons state would have had to first eliminate its nuclear weapons programme before adhering to the 2017 Treaty:

Article 4. Measures for States that have eliminated their nuclear weapons

  1. 1.  Each State Party that has manufactured, possessed or otherwise acquired nuclear weapons or other nuclear explosive devices after 5 December 2001, and eliminated all such weapons or explosive devices prior to the entry into force of the Convention for it, undertakes to cooperate with the International Atomic Energy Agency for the purpose of verification of the completeness of its inventory of nuclear material and nuclear installations.

  2. 2.  Unless otherwise agreed by the States Parties, arrangements necessary for the verification required by this Article shall be concluded in an agreement between the State Party and the International Atomic Energy Agency. Negotiation of such an agreement shall commence within 180 days of the submission of the declaration provided for in Article 2. Such agreements shall enter into force not later than eighteen months after the date of the initiation of negotiations.

  3. 3.  For the purpose of performing the verification required by this Article, the International Atomic Energy Agency shall be provided with full access to any location or facility associated with a nuclear weapon programme and shall have the right to request access on a case-by-case basis to other locations or facilities that the Agency may wish to visit.3

4.05  One expert, writing online, criticised the draft text of Article 4, arguing that its wording was ‘imprecise’ as it required of the declaration of nuclear material inventory only ‘completeness’ but not its accuracy. This, Tariq Rauf asserted, was ‘a step back from the current IAEA verification standard’.4 The erstwhile Head of Verification and Security Policy Coordination at the International Atomic Energy Agency (in 2002–11) further observed that the nature of the requisite ‘agreement’ with the Agency was not specified and it was not stipulated that it must be in conformity with the IAEA safeguards system.5

4.06  The subsequent article in the May text, draft Article 5, entitled ‘Measures for situations not covered by Article 4’, sought to address the situation of a state party with nuclear weapons or other nuclear explosive devices:

(p. 191)

Proposals for further effective measures relating to nuclear disarmament, including provisions for the verified and irreversible elimination of any remaining nuclear weapon programmes under strict and effective international control, which may take the form of additional protocols to this Convention, may be considered at the Meetings of States Parties or Review Conferences. All States represented at the meeting or review conference may participate fully in such consideration. The meeting or review conference may agree upon additional protocols which shall be adopted and annexed to the Convention in accordance with its provisions.

4.07  In plenary in the Second Session of the UN Diplomatic Conference, Ireland again supported the notion of reflecting the ‘destroy and join’ approach in the 2017 Treaty. Iran concurred. Cuba proposed a third possibility, calling for the negotiation of a protocol for nuclear-armed states seeking to adhere to the Treaty.6 But ultimately support coalesced around South Africa’s combined proposal, presented early in the Second Session, as the basis for moving forward on the disarmament aspects of the treaty.7 Its suggested text for what would, in significantly modified form, become Article 4 in the 2017 Treaty, allowed a nuclear-armed state to ‘join and destroy’:

  1. 1.  Each State Party undertakes to immediately remove from operational status and destroy or ensure the destruction of all nuclear weapons or nuclear explosive devices under its jurisdiction or control, as soon as possible but not later than [X years] after the entry into force of this Convention for that State Party. Upon the elimination of all nuclear weapons under its jurisdiction or control, such State Party shall submit a Final Declaration confirming that all its nuclear facilities and materials are under IAEA safeguards and shall remain so. It shall also permit the International Atomic Energy Agency to verify the correctness and completeness of its Final Declaration.

  2. 2.  Each State Party which declared that there are nuclear weapons on its territory that are owned and possessed by another State shall ensure the removal of such weapons as soon as possible, but not later than [X years] after the entry into force of this Convention for that State Party and shall submit a declaration to that effect upon the removal of such weapons.

  3. 3.  Each State Party which declared that it engages in any planning, training or military preparations for the use of nuclear weapons, shall make the necessary arrangements to terminate such actions as soon as possible, but not later than [X years] after the entry into force of this Convention for that State Party, and shall submit a declaration to that effect upon termination of such actions.

  4. 4.  If a State Party believes that it will be unable to destroy or ensure the destruction of all nuclear weapons under its jurisdiction or control, referred to in Article 3 (1), within that time period, it may extraordinarily submit a request to a Meeting of States Parties or a Review Conference for an extension of the deadline for completing the destruction of their nuclear weapons for a maximum period of up to [X years].

4.08  The text of military preparation for use in South Africa’s draft paragraph 3 would not attract sufficient support, so this would not find its way into the final Treaty text. In addition, negotiating states were unable to agree on a specific deadline for the completion of the destruction of a state party’s arsenal of nuclear explosive devices in the future Treaty, preferring to kick the can down the road to the First Meeting of States Parties. Facilitated negotiations, though, convened under the auspices of Ms Helena Nolan of Ireland, achieved a generally agreed approach to Article 4. Her draft for the provision, as (p. 192) it stood on 30 June, was close to the text that would be adopted a week later, leaving only a few details to be ironed out. It read as follows:

Article 4. Total elimination of nuclear weapons

  1. 1.  Each State Party that owned, possessed or controlled nuclear weapons or nuclear explosive devices and eliminated its nuclear weapons programme, including the elimination of all nuclear weapons-related facilities or their conversion, prior to the entry into force of this Treaty for it, shall conclude an 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 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 eighteen 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. 2.  [Notwithstanding Article 1(1)(a),] each State Party that owns, possesses or controls nuclear weapons or other nuclear explosive devices shall remove them from operational status and destroy them in accordance with a legally-binding, time-bound plan for the verified and irreversible elimination of that State’s nuclear weapon programme, including the elimination of all nuclear weapons-related facilities or their conversion. The State Party, no later than 60 days after the entry into force of this Treaty for that State, shall submit this plan to the Meeting of States Parties or to a competent authority designated by the States Parties. This plan shall then be negotiated with the competent authority, which shall submit it to the next Meeting of States Parties or Review Conference, whichever comes first, for approval in accordance with its rules of procedure.

  3. 3.  A State Party to which paragraph 2 applies shall conclude an 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 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 eighteen 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. 4.  [Notwithstanding Articles 1(1)(b) and 1(2)(a),] Each State Party that has nuclear weapons or other nuclear explosive devices on its territory or in any place under its jurisdiction or control that are owned or possessed by another State shall ensure the prompt removal of such weapons within a timeframe to be proposed by that State Party and approved by the next Meeting of States Parties or Review Conference, in accordance with its rules of procedure. 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. 5.  Each State Party to which this Article applies shall 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. 6.  The States Parties shall designate a competent international authority to verify the irreversible elimination of nuclear weapons programmes, including the elimination of all nuclear weapons-related facilities or their conversion in accordance with paragraphs 1, 2 and 3.

4.09  The principal substantive amends in the text as ultimately adopted were twofold. First, it set the date of adoption of the 2017 Treaty—7 July—as the baseline for the application (p. 193) of paragraphs 1 and 2 of the article to a nuclear-armed state party. Second, the inclusion of text reconciling the strict prohibitions in Article 1 with the fact of a state party’s possession or hosting of nuclear weapons prior to their planned destruction or removal was confirmed.

Commentary

4.10  Article 4 addresses the respective verification and disarmament obligations of three different categories of states parties to the 2017 Treaty. The first are those that had owned, possessed, or controlled nuclear weapons or other nuclear explosive devices the day after the date of adoption of the Treaty but had destroyed them by the time they became party to it. The second are those that still own, possess, or control nuclear weapons or other nuclear explosive devices on the date they become party to the Treaty. The third are those that have nuclear weapons or other nuclear explosive devices belonging to a foreign state located on any territory under their jurisdiction or control on the date they become a state party.

4.11  A former nuclear-armed state party, which had owned, possessed, or controlled any nuclear explosive devices on or after 8 July 2017, but had destroyed them by the time it became party to the Treaty, is obligated to cooperate with the ‘competent international authority’ designated by the states parties to verify the ‘irreversible elimination’ of its nuclear weapons programmes. It must conclude and see entered into force a safeguards agreement with the IAEA within defined time periods (the same as those applied to other states parties under Article 3) and then maintain it. The safeguards agreement must be of such a nature to ‘provide credible assurance’ that declared nuclear material is not diverted from peaceful nuclear activities and that no undeclared nuclear material or activities exist. This agreement will in all likelihood require a higher level than that of the IAEA Comprehensive Safeguards Agreement, and should probably include the Additional Protocol.8

4.12  In the case of nuclear-armed states parties, they are required to ‘immediately remove them from operational status’, and to destroy them as soon as possible, but not later than a deadline to be determined by the First Meeting of States Parties of the 2017 Treaty. The destruction must be conducted in accordance with a ‘legally binding, time-bound plan for the verified and irreversible elimination of that State Party’s nuclear-weapon programme’, which must include ‘the elimination or irreversible conversion of all nuclear-weapons-related facilities’. Nuclear weapons states parties must similarly conclude and see entered into force within defined time periods (the same as those applied to other states parties under Article 3), and then maintain, a safeguards agreement with the IAEA ‘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’.

4.13  In the case of states parties hosting a foreign state’s nuclear weapons, they are obligated to ensure their ‘prompt removal’, as soon as possible but not later than a deadline to be determined by the First Meeting of States Parties of the 2017 Treaty. Once the weapons or devices have been removed, the state party must submit to the UN Secretary-General a declaration that it has fulfilled its obligations under Article 4.

(p. 194) Paragraph 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.

4.14  Paragraph 1 applies to every state party that, since 8 July 2017 (the day after the date of adoption of the 2017 Treaty), owned, possessed, or controlled nuclear weapons or other nuclear explosive devices and which had eliminated its nuclear-weapons programme prior to the date on which it became a state party. It is not made explicit in the paragraph, but of course the elimination of the nuclear-weapons programme must have comprised the destruction of all nuclear explosive devices. What is categorical is that the elimination of the programme must have included the ‘elimination or irreversible conversion of all nuclear-weapons-related facilities’. These include all research and development, production, testing, and storage facilities pertaining to any nuclear explosive devices.

4.15  A former nuclear-armed state party is obligated to cooperate with the ‘competent international authority’ designated by the states parties for the purpose of verifying the irreversible elimination of its nuclear-weapons programme. It is not made clear in the 2017 Treaty the means by which the states parties shall designate this authority (or authorities, as set out in paragraph 6 of Article 4), but presumably it would occur by decision at a meeting of states parties or a review conference. It is, though, explained in paragraph 6 that should the requisite designation not have been made by the time a former nuclear-armed state becomes party to the 2017 Treaty, the UN Secretary-General ‘shall convene an extraordinary meeting of States Parties to take any decisions that may be required’.

4.16  An obvious candidate to serve as the competent international authority is the International Atomic Energy Agency, but there are political obstacles to be overcome9 and it is not possible under international law to bind the Agency in an international treaty to which it is not party.10 Indeed, the question of the international legal personality (p. 195) of an international organisation has been the subject of considerable debate over recent decades. In particular, as Karl Zemanek has observed, the question of whence under international law an international organisation’s treaty-making capacity derives has been ‘unsettled’. In the post-Second World War period, he notes, socialist states asserted that such organisations ‘possessed international legal personality only if it had been conferred upon them by the founding States and treaty-making capacity only if it was explicitly provided for in their constituent instruments’.11

4.17  The issue was addressed in the negotiation, in 1986, of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Drawing on earlier jurisprudence from the International Court of Justice (ICJ),12 negotiating states accepted that ‘international organizations possess the capacity to conclude treaties which is necessary for the exercise of their functions and fulfilment of their purposes’.13 It is further stipulated that: ‘The capacity of an international organization to conclude treaties is governed by the rules of that organization.’14 In turn, the Convention defines those rules in broad terms as meaning, ‘in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization’.15

4.18  The 1986 Vienna Convention is not yet in force (for want of ratifications by three states, as of writing),16 but most of its provisions may be considered generally reflective of international law today. Also worthy of note is the fact that the IAEA itself has adhered to the Convention, acceding to it in April 2001.17 As one authority has noted: ‘Because the IAEA’s obligations are spelled out in the fine print of legal instruments, the IAEA (p. 196) secretariat has considerable autonomy for implementing safeguards while being subject to strict constraints.’18

4.19  The competent international authority that is ultimately designated for the purposes of Article 4 will be required to report to the states parties on its work and its findings. In addition, the concerned state party is obligated to conclude a safeguards agreement with the IAEA that is sufficient to provide credible assurance that all declared nuclear material is not diverted from peaceful nuclear activities and that the state party has declared all of the nuclear material that it possesses and all of the relevant activities it has conducted. The state party is required to begin negotiation of the relevant agreement with the IAEA within 180 days of becoming a party to the 2017 Treaty, and it is—indirectly—obligated19 to ensure that the agreement enters into force no later than eighteen months after its becoming a party. The concerned state party shall then, ‘at a minimum, maintain these safeguards obligations, without prejudice to any additional relevant instruments that it may adopt in the future’.

4.20  The obligation to conclude a safeguards agreement with the IAEA largely mirrors that set out in Article 3. But the reference to a safeguards agreement that is ‘sufficient to provide credible assurance’ that the state party has declared all of the nuclear material it possesses and all of the relevant activities that it has conducted strongly implies that not only a comprehensive safeguards agreement but also the Additional Protocol (or other heightened agreement) must be agreed by the state party with the IAEA.

Paragraph 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.

4.21  Paragraph 2 addresses the disarmament obligations of a state that owns, possesses, or controls nuclear weapons or other nuclear explosive devices upon becoming a party to the 2017 Treaty. It requires such a state to ‘immediately’ remove such weapons or devices from ‘operational status’. This means, for instance, that if they are mounted on launchers, loaded onto aircraft or submarines, or set within silos, they must be removed and placed into safe and secure storage facilities. Operational status should probably be considered analogous to ‘deployment’. As of March 2018, according to experts at the Federation of American Scientists, there were about 3,600 warheads on deployed strategic nuclear (p. 197) weapons and some 150 warheads on deployed non-strategic (tactical/short-range) nuclear weapons.20 Other weapons were held in reserve in military stockpiles, some of which were awaiting ‘dismantlement’.21

4.22  The obligation on the nuclear-armed state party is then to ‘destroy’ the nuclear weapons and other nuclear explosive devices it owns, possesses, or controls ‘as soon as possible’. The First Meeting of States Parties of the 2017 Treaty is required to set a fixed deadline for destruction that would apply to each state party. Of course, it is theoretically open to the states parties to allow nuclear-armed states parties to request an extension to its set deadline in line with the approach adopted in the 1992 Chemical Weapons Convention22 and later followed in the 2008 Convention on Cluster Munitions.23

4.23  The destruction programme must be conducted ‘in accordance with a legally binding, time-bound plan for the verified and irreversible elimination’ of the state party’s nuclear-weapons programme. The plan must include provision for the ‘elimination or irreversible conversion of all nuclear-weapons-related facilities’. These include all research and development, production, testing, and storage facilities pertaining to any nuclear explosive devices.

4.24  The nuclear-armed state party is required to submit a draft of the plan within sixty days of becoming a state party to the 2017 Treaty to either the other states parties or to a ‘competent international authority’ they designate.24 Whichever approach is taken, the plan must then be ‘negotiated’ with that competent international authority. Implicitly, the plan must be also agreed upon by the two parties: the state party and the competent international authority. The authority, in turn, is then obligated to submit it to the next meeting of states parties or review conference, whichever comes first, for ‘approval in accordance with its rules of procedure’. This would purport to bind an authority (e.g. the IAEA) to an action in a treaty to which it is not a party. As noted above, this is not possible under international law. Had the obligation been imposed on the concerned state party, of course, this would not pose a problem. In practice, then, the concerned state party will need to finalise the agreement with the competent international authority, and there must be specific provision for the authority, within or outside that agreement, to submit the plan for approval at the relevant gathering of states parties.

4.25  There is another potential problem under international law with these obligations as formulated in paragraph 2 of Article 4, since it is specified that the plan must be ‘legally binding’. Presumably, this means that it must be binding under international law in the form of an agreement that amounts to a treaty. Under Article 2(1)(a)(i) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, for the purposes of that Convention: ‘ “treaty” means an international agreement governed by international law and concluded in written form: … (i) between one or more States and one or more international organizations’.

4.26  This definition could certainly encompass a formal agreement between the state party and the competent international authority (on the assumed basis that this authority is an (p. 198) international organisation, as that concept is understood under international law).25 It is not, though, made explicit that the agreement is to be concluded between the state party and the competent international authority, merely that it is to be ‘negotiated’ with that authority. Moreover, the results of that negotiation have to be ‘approved’ by the following meeting of states parties or review conference, whichever takes place first. Presumably, though, the plan is not being concluded with the meeting of states parties or review conference as a ‘party’, as it would be hard to ensure that the agreement was legally binding.

4.27  The method of ‘destruction’ for nuclear explosive devices is not specified in Article 4, nor are any environmental and safety standards laid down in that provision which the state party must apply during the destruction process. These could—and arguably should—be incorporated in the elimination plan. In contrast, the 1992 Chemical Weapons Convention obliges each of its states parties, ‘during transportation, sampling, storage and destruction of chemical weapons’, to ‘assign the highest priority to ensuring the safety of people and to protecting the environment’.26 In the 1997 Anti-Personnel Mine Ban Convention, each state party is required to report on its programmes for the destruction of anti-personnel mines, including details of the ‘applicable safety and environmental standards’ to be observed.27

4.28  The fissile material contained in any nuclear explosive device may have legitimate applications, such as in the peaceful use of nuclear power. Thus, for example, in the past US nuclear power plants have used fissile material from dismantled Russian warheads. In February 1993, the United States and Russia signed a bilateral ‘Agreement on the Disposition of Highly Enriched Uranium Extracted from Nuclear Weapons’, which provided for the purchase by the United States over a twenty-year period of 500 metric tons of Russian highly enriched uranium (HEU). This ‘Megatons to Megawatts’ agreement was the world’s first programme for converting weapons-grade nuclear materials from dismantled nuclear warheads to commercial reactor fuel for the generation of electricity.28 In December 2013, the two states commemorated the completion of the programme with the arrival in Baltimore of the last shipment of more than 500 metric tons of HEU down-blended from some 20,000 dismantled Russian nuclear warheads. Astonishingly, the HEU supplied by Russia was used to provide nearly 10 per cent of all US domestic electricity consumption over a period of fifteen years.29 That said, as a result of the significant reductions of nuclear weapons arsenals in recent decades, quantities of weapon-usable fissile material exist that are far in excess of any conceivable demand for civilian purposes. The maintenance of a nuclear-weapon-free world will need to find a solution to how to dispose of this material completely and irreversibly.

4.29  Finally, the reference to Article 1(a) in Article 4(2)—which should in fact be to Article 1(1)(a)—is a reflection that a state party may ‘join and destroy’ its nuclear weapons, notwithstanding the fact that, ostensibly, possession is unequivocally prohibited to a (p. 199) state party under Article 1 of the 2017 Treaty. Given that receiving the control of nuclear weapons and other nuclear explosive devices is prohibited under Article 1(1)(c) not Article 1(1)(a), reference to that provision should probably also have been made in the text.

Paragraph 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 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.

4.30  In addition to its practical disarmament obligations, a nuclear-armed state party is required to conclude an enhanced safeguards agreement with the IAEA in the same terms as demanded under paragraph 1 of a former nuclear-armed state that becomes party to the 2017 Treaty. Thus, as observed in relation to that paragraph, the reference to a safeguards agreement that is ‘sufficient to provide credible assurance’ that the state party has declared all of the nuclear material that it possesses and all of the relevant activities it has conducted strongly implies that not only a comprehensive safeguards agreement but also the Additional Protocol (or other suitable, bespoke agreement) must be agreed with the IAEA by the state party.

4.31  In the case of a nuclear-armed state party, negotiation of the agreement with the IAEA must begin no later than the date on which the state party completes the elimination of its nuclear weapons programme, in accordance with the implementation plan referred to in paragraph 2. The agreement must then enter into force no later than eighteen months after the date of initiation of negotiations. That state party is thereafter required, at a minimum, to maintain those safeguards obligations, ‘without prejudice to any additional relevant instruments that it may adopt in the future’.

4.32  Once this safeguards agreement has entered into force, the state party is required to submit to the UN Secretary-General a ‘final declaration’ that it has fulfilled its obligations under Article 4. In contrast to the requirement set out in Article 2(2), it is not made explicit that the UN Secretary-General shall circulate this declaration to the other states parties, but presumably he or she would do so as a matter of course. As set out in paragraph 5, the concerned state party is required to report to each meeting of states parties and each review conference on progress through to the fulfilment of its obligations.

Paragraph 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 (p. 200) 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.

4.33  Paragraph 4 concerns any state party to the 2017 Treaty that ‘hosts’ nuclear weapons or other nuclear explosive devices at any place under its jurisdiction or control that are owned, possessed, or controlled by another State. Such a state party is required to ‘ensure’ their ‘prompt removal’30 as soon as possible, but not later than a deadline to be determined by the first meeting of states parties to the 2017 Treaty. As of writing, only the United States was believed to have nuclear weapons stationed on the territory of another state. This concerns nuclear weapons hosted in Belgium, Germany, Italy, the Netherlands, and Turkey.31

4.34  Upon the removal of the foreign weapons or other explosive devices, the state party formerly ‘hosting’ the weapons is required to submit to the UN Secretary-General a declaration that it has fulfilled its obligations under Article 4. As is the case with an erstwhile nuclear-armed state that becomes party to the 2017 Treaty, it is not made explicit that the UN Secretary-General shall circulate this declaration to the other states parties, but presumably he or she would do so as a matter of course. As set out in paragraph 5, the concerned state party is similarly required to report to each meeting of states parties and each review conference on progress through to the fulfilment of its obligations.

4.35  Finally, the reference to Article 1(b) and 1(g) in Article 4(3)—which should in fact be to Article 1(1)(b) and 1(1)(g)—is a reflection that a state party is prohibited from hosting foreign nuclear weapons or other nuclear explosive devices under Article 1(1)(g) of the 2017 Treaty. The reference to Article 1(1)(b) is harder to understand as it suggests that the removal of the weapons might somehow equate to a transfer prohibited under that subparagraph. This is not the case, as these weapons are merely transiting from one place to another while remaining always under the control of the foreign state (otherwise, this would amount to possession or control by the state party).

Paragraph 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.

4.36  Paragraph 5 concerns the reporting obligations of nuclear-armed states parties, states parties hosting foreign nuclear weapons or other nuclear explosive devices in any place under their jurisdiction or control, and states that have been nuclear-armed since 8 July 2017 but had fully disarmed prior to becoming parties to the 2017 Treaty. They are required to report on their respective progress in implementing Article 4 to each meeting of states parties and each review conference on progress through to the fulfilment of their obligations.

(p. 201) Paragraph 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.

4.37  Under paragraph 6, the states parties to the 2017 Treaty are obliged to 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 Article 4. The means by which this designation is to occur is not spelled out in the Treaty, but presumably it would occur by a decision taken at a meeting of states parties or a review conference.

4.38  Paragraph 6 does clarify, though, that should the designation not have been made prior to a former or current nuclear-weapons state becoming party to the 2017 Treaty, the UN Secretary-General is obligated to convene an extraordinary meeting of states parties ‘to take any decisions that may be required’. This should be seen as distinct from the procedure laid down under Article 8(3) of the Treaty for the convening of other extraordinary meetings of states parties. These ‘shall be convened, as may be deemed necessary’ by the UN Secretary-General, following the written request of any state party provided that the request is supported by at least one third of the states parties.

Footnotes:

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

2  The Agency’s genesis was US President Eisenhower’s famous ‘Atoms for Peace’ address to the UN General Assembly on 8 December 1953. IAEA, ‘History’, at: http://bit.ly/2J7E6XI. The Statute of the IAEA was approved on 23 October 1956 by the Conference on the Statute of the International Atomic Energy Agency, a diplomatic conference held at UN Headquarters in New York. The IAEA Statute came into force on 29 July 1957. IAEA, ‘Statute’, 2017, at: http://bit.ly/2S47dQ1. The IAEA, which is a ‘related organisation’ with respect to the United Nations system, reports to both the UN Security Council and the UN General Assembly. See, e.g., ‘The United Nations System’, System Chart, as at 13 March 2017.

3  Art. 4, Draft Convention on the Prohibition of Nuclear Weapons, UN doc. A/CONF.229/2017/CRP.1, 22 May 2017.

4  T. Rauf, ‘The “bizarre” ban—a response to the draft Prohibition of Nuclear Weapons’, Atomic Reporters, 24 May 2017, at: http://bit.ly/2CXd4Cq.

5  Ibid.

6  Remarks in plenary, Second Session of the UN Diplomatic Conference, 17 June 2017.

7  South Africa introduced its proposal orally in plenary on 17 June 2017 and then submitted the text to the Conference Secretariat in writing.

8  ‘Model Protocol Additional to the Agreement(s) Between State(s) and the International Atomic Energy Agency for the Application of Safeguards’, IAEA doc. INFCIRC/540 (Corrected), available at: http://bit.ly/2R4JjCi.

9  Many of the current members of the IAEA Board of Governors are either nuclear-armed states or US allies protected under the United States’ ‘nuclear umbrella’, which do not currently support the 2017 Treaty. There may also be a lack of expertise and resources in the IAEA for nuclear disarmament verification, though this could probably be addressed given sufficient notice.

10  Thus, as Article 34 (General rule regarding third States and third organizations) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations stipulates: ‘A treaty does not create either obligations or rights for a third State or a third organization without the consent of that State or that organization.’ As noted, infra, in para. 4.18, the Convention has not yet entered into force, but the rule codified in Article 34 undoubtedly represents a general principle of international law, and likely also a customary norm. See, e.g., M. Fitzmaurice, ‘Third Parties and the Law of Treaties’, in Max Planck Yearbook of United Nations Law, Vol. 6 (2002), at: http://bit.ly/2q5RdzS; but also K. Daugirdas, ‘How and Why International Law Binds International Organizations’. Harvard International Law Journal, Vol. 57, No. 2 (2016), 325–81, at: http://bit.ly/2PMkOtv. General principles of law and international custom are both primary sources of international law. (See Article 38(1)(b) and (c), 1945 Statute of the International Court of Justice (ICJ).) That said, the rule here enunciated, sometimes known by its Latin formulation ‘pacta tertiis nec nocent nec prosunt’ appears to be infringed by a line of text included in paragraph 2 of Article 4. See infra, para. 4.24.

11  K. Zemanek, ‘Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations’, UN Audiovisual Library of International Law, 2008, at: http://bit.ly/2CYPCo7.

12  ICJ, Certain Expenses of the United Nations, Advisory Opinion, 20 July 1962, in ICJ Reports 1962, 151–80, at 167–8.

13  1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLTIO), Eleventh preambular paragraph.

14  Art. 6, VCLTIO.

15  Art. 2(1)(j), VCLTIO.

16  Under Article 85(1) of the VCLTIO, the treaty will enter into force thirty days after the deposit of the 35th instrument of ratification, acceptance, approval, or accession. As at 1 October 2018, thirty-two states had ratified or acceded to the VCLTIO, most recently Palestine in March 2018: Albania, Argentina, Australia, Austria, Belarus, Belgium, Bulgaria, Colombia, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Gabon, Germany, Greece, Hungary, Italy, Liberia, Liechtenstein, Malta, Mexico, Moldova, the Netherlands, Palestine, Senegal, Slovakia, Spain, Sweden, Switzerland, the United Kingdom, and Uruguay.

17  As at 1 May 2018, twelve international organisations had ratified or acceded to the VCLTIO: the IAEA, the International Civil Aviation Organization (ICAO), Interpol, the International Labour Organization (ILO), the International Maritime Organisation (IMO), the Organization for the Prohibition on Chemical Weapons (OPCW), the CTBTO Preparatory Commission, the United Nations, the UN Industrial Development Organization (UNIDO), the Universal Postal Union (UPU), the World Health Organization (WHO), and the World Intellectual Property Organization (WIPO).

18  M. Hibbs, ‘Why Does the IAEA Do What It Does?’, 6 November 2017, Conference Presentation to the ‘The International Atomic Energy Agency at 60’ Conference at the Wilson Center, available at: http://bit.ly/2CXiehz.

19  The wording is that ‘The agreement shall enter into force no later than 18 months from the entry into force of this Treaty for that State Party.’ It is implicit that the obligation to ensure that this occurs falls on the concerned state party.

20  Table on the Status of World Nuclear Forces 2018 in H. M. Kristensen and R. S. Norris, ‘Status of World Nuclear Forces’, FAS, 2018, at: http://bit.ly/2Amxx0B.

21  Ibid.

22  See, in particular, the 1992 Chemical Weapons Convention, Annex, Part IV (A), paras 24–28.

23  Art. 3(3) to (5), 2008 Convention on Cluster Munitions.

24  This rather awkward formulation suggests that should the state party submit the draft to both the states parties and the competent international authority, it would be in violation of its international obligations.

25  According to Article 2(1)(i) of the VCLTIO, ‘ “international organization” means an intergovernmental organization’.

26  Art. IV(10), 1992 Chemical Weapons Convention. In comments on initial draft Article 7, on national implementation, Cuba called for a reference to a duty to respect security and the environment in implementing the Treaty but this was not accepted. Remarks of Cuba in plenary, Second Session of the UN Diplomatic Conference, 18 June 2017.

27  Art. 7(1)(f), 1997 Anti-Personnel Mine Ban Convention.

28  Ibid.

29  ‘Under U.S.-Russia Partnership, Final Shipment of Fuel Converted From 20,000 Russian Nuclear Warheads Arrives in United States and Will Be Used for U.S. Electricity’, National Nuclear Security Administration, 11 December 2013, web page no longer online.

30  The text of the provision refers to the duty only to remove nuclear ‘weapons’ and not also other nuclear explosive devices, but the following sentence indirectly clarifies that this obligation should be understood as applying to all nuclear explosive devices.

31  NPA, Nuclear Weapons Ban Monitor. Preliminary Research, NPA/ICAN, Geneva, April 2018, p. 29. See also T. Sauer, ‘Just Leave It: NATO’s Nuclear Weapons Policy at the Warsaw Summit’, Arms Control Today, June 2016, at: http://bit.ly/2yrdDQI.