Legal Arrangements for the Elimination of Nuclear Weapons
Disarmament undertakings need to be established as legal as well as
political and normative obligations if they are to provide the
confidence needed for the achievement of a nuclear weapon free world
and the basis for the necessary verification arrangements, and
particularly for their permanent maintenance. There are a variety of
legal arrangements in which the legal obligations could be
embodied.
Legal Options
There are a number of legal instruments in place and in prospect
which embody legal obligations relevant to arrangements for the
elimination of nuclear weapons. Amendments could be made to existing
instruments or protocols added to cover additional obligations.
Alternatively a new treaty could be negotiated. Non-treaty measures
could also assist the disarmament process and transition to a nuclear
weapon free world. This annex canvasses the options available.
Treaty Measures
Amendments
The method of amending a multilateral treaty depends on the terms of the treaty. Where no provision is made for amendment, the residual rules set out in the Vienna Convention on the Law of Treaties apply.
Unless a multilateral treaty provides otherwise, amendments to it bind only those parties which become party to the amending instrument. Where not every party to a multilateral treaty adheres to an instrument amending the treaty, a two-tiered system arises in which two different sets of states are bound by two different sets of obligations. First, the unamended treaty governs relations between a state party to the unamended treaty and a state party to the treaty as amended. It also governs relations between two states party to the unamended treaty. Second, the treaty in its amended form governs relations between two states party to the treaty as amended.
As a practical matter, it is difficult to prevent such a two-tiered outcome from persisting for a protracted period even where all parties to the original treaty intend to ratify the amending instrument. This is because delays are inevitable as each state party complies with domestic requirements for treaty action before ratifying the amending instrument. In a situation where some parties to the treaty were unwilling to ratify the amending instrument because they disagreed with the substance of the amendments, the two tiers of obligation would continue indefinitely.
The effect of two co-existing tiers of obligation varies with the nature of the treaty. Most treaty obligations in the field of disarmament are not premised on a strictly reciprocal basis. In the case of the Treaty on the Non-Proliferation of Nuclear Weapons, for example, each party's obligations are of an over-arching and largely negative, that is, refraining, nature. In one sense, those obligations benefit states not party to the NPT as much as states party, although they are not enforceable by non-party states. In many areas of international trade law, by contrast, the benefit of treaty obligations flows to other states on a purely reciprocal basis, even in the context of a multilateral treaty. That is, the benefit arising from the treaty obligations of one state party will flow only to other states party.
This propensity for the benefits of disarmament obligations to flow on to non-party states may lessen the impact of having two co-existing tiers of obligation. The new obligations assumed by those states parties which ratify an amending instrument are likely to benefit one and all, irrespective of adherence to the ratifying instrument or even to the unamended treaty. On the other hand, this feature may lessen the incentive for each state party to assume further obligations by ratifying an amending instrument, thereby perpetuating the messy two-tier situation.
The amendment provisions of the NPT are noteworthy. Any amending instrument must be ratified by a majority of all NPT parties which includes all the nuclear weapon state parties and all parties which were, at the time the proposed amendment was circulated, members of the International Atomic Energy Agency Board of Governors (in accordance with Article VIII.1 and VIII.2 of the NPT). Thus any one of 30 states could choose to exercise what is, in effect, a power of veto to prevent an amendment from entering into force, however strong the support for the amendment. But in practice, an amendment supported by the nuclear weapon states to enforce obligations to bring about the achievement of a nuclear weapon free world could be expected to receive support from all non-nuclear weapon states party to the treaty.
Nevertheless an important point to note about the option of creating new disarmament obligations by amending existing instruments is the difficulty of 'quarantining' amendment proposals. All multilateral treaties are necessarily the product of much compromise. For some parties, a proposed amendment may appear to upset the original balance of rights and obligations which made the treaty acceptable. For others, it may herald an opportunity to attempt to redress every perceived problem in the unamended treaty by re-opening debate upon all aspects of the treaty, in what could prove to be a counterproductive exercise serving only to weaken the treaty in question.
Protocols
A protocol added to an existing treaty will bind only those parties to the treaty which express their consent to be bound by the protocol. However, entry into force of the protocol would take place on its own terms. In relation to the NPT, for example, a protocol could serve to situate important new obligations under the auspices of the NPT while avoiding the cumbersome and highly uncertain NPT amendment process. Since the protocol would not amend the NPT its provisions could not conflict with those in the NPT, but it could impose additional obligations, provided they are not inconsistent.
Optional protocols may be negotiated contemporaneously with the treaties to which they are attached or at a later date. If negotiated later, their potential existence may be foreshadowed in the text of the treaty, as a means of encouraging future efforts on questions incapable of resolution at the time of negotiation of the core treaty. However, this path would require agreement by the states adopting the treaty that the question at issue was one which should be debated and agreed upon at a later date.
Whenever negotiated, protocols could usefully facilitate a staged approach to nuclear disarmament.
New Treaties
There is also the option of negotiating an entirely new treaty. The attractiveness of this route would depend on a number of factors including the extent of support from the nuclear weapon states for this option. On the one hand, negotiation of an entirely new treaty will usually permit greater freedom as to the scope of subject matter covered. On the other, negotiations on the basis of a fundamental lack of consensus may impede progress. The time taken for negotiation and universal ratification also would need to be taken into account.
Revised Interpretation of Existing Treaty Provisions
Interpretation of the provisions of a treaty must take into account any subsequent agreement between parties regarding its interpretation, and any subsequent practice in the application of the treaty establishing such agreement (per Article 31.3 of the Vienna Convention on the Law of Treaties).
One possible application of this rule concerns Article VI of the NPT. The Principles and Objectives document of the 1995 NPT Review and Extension Conference may be viewed as an agreement among NPT parties as to the steps by which Article VI should be implemented. Future NPT Review Conferences will review this common understanding of implementation of Article VI.
Non-Treaty Measures
Unilateral Statements and Acts
A state may be bound by an obligation undertaken in a unilateral declaration if this is the intention of the state making the declaration and the undertaking is given publicly. Most unilateral statements, however, are political in character and are not intended to create legal obligations. Although these statements are not legally binding, they can engender goodwill and enhance the atmosphere for productive negotiations towards mutually accepted binding commitments.
Unilateral acts may also assist initial progress towards treaty negotiations, both by reducing substantive obstacles to agreement and by helping the psychological adjustment to the view that a secure nuclear weapon free world is feasible.
Political Commitments by Two or More States
Like unilateral statements and acts, jointly expressed political commitments may help to accelerate progress on disarmament. A multilateral non-binding political declaration can be of potentially enormous influence. It may even have an indirect legal effect if it comes to be seen as representing customary international law. For example, the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 carries much weight and has been invoked by international tribunals. Moreover, even if the declaration does not involve legal obligations, any state would think twice before reneging on a well-publicised political commitment undertaken jointly with other states. As recommended in Part Two of the report, an immediately beneficial first step at this stage of the disarmament process would be a commitment to a nuclear weapon free world by all five declared nuclear weapon states, in the first instance. What is proposed is not a treaty but a political commitment or compact, entered into by those five states to which all other states could express their agreement and support.
Options for Action
A number of options for taking action on legal arrangements are
therefore available as the world approaches and reaches the
elimination of nuclear weapons. Two basic approaches could be
adopted: an incremental approach and a comprehensive approach.
Incremental Approach
An incremental approach would build upon the existing NPT and other
related treaties such as a Comprehensive Test Ban Treaty, and
possible future conventions on the cessation of the production of
fissile materials for nuclear explosive purposes and on the non-first
use of nuclear weapons, rather than seek to replace them.
Such an incremental approach could entail supplementary commitments
negotiated in the form of an NPT protocol or NPT amendments. These
measures would be accompanied by a concerted effort to achieve
universal adherence to the NPT and by the transition by the nuclear
weapon states to non-nuclear weapon status under the NPT. This
transition in nuclear weapon state status, in combination with global
adherence to the NPT, would entrench verifiable commitments by all
states to renounce nuclear weapons. Each nuclear weapon state would
thus renounce nuclear weapons and the formal assumption of legal
obligations could be via a new protocol. The text of the protocol
would be agreed by all NPT parties but signed only by the nuclear
weapon states. Following from the protocol could be a fullscope
safeguards agreement with the IAEA encompassing Article II
obligations and any particular requirements for verification in
former weapon states.
The transformation of the NPT to a central treaty outlawing nuclear
weapons could then be affirmed by a declaration of all NPT parties,
probably at a Review Conference of the Treaty.
Thus, in the incremental approach, the transformed NPT along with
entire corpus of parallel treaty commitments, political declarations
and undertakings would serve as the legal and institutional basis for
the elimination of nuclear weapons.
Comprehensive Approach
The comprehensive approach would entail the negotiation of a new
treaty prohibiting the development and possession of nuclear weapons
to replace the NPT and possibly other treaties such as a CTBT and
possible future conventions on the cessation of the production of
fissile materials for nuclear explosive purposes and on the non-first
use of nuclear weapons. An advantage of the new treaty option is that
it would allow greater freedom as to the subject matter to be
covered. It may also offer important political advantages by
codifying, in a single instrument, the global community's shared will
to eliminate nuclear weapons. A new treaty could also contain a clear
focus on the complete elimination of nuclear weapons whereas many of
the existing and prospective instruments that would be components of
the incremental approach have arms control rather than disarmament as
their basis. Negotiation of a new treaty would also be consistent
with the approach taken with chemical weapons and biological weapons
both of which have been prohibited through single legal instruments,
the Chemical Weapons Convention and the Biological Weapons
Convention.
The new treaty option may risk jeopardising the strength of the NPT
regime, with its almost global adherence, by attempting to achieve a
new treaty p; especially as the benefits of such a new treaty may
be achievable in other ways. Despite its poor implementation record
until very recently, Article VI and the preambular paragraphs to the
NPT contain the only legally binding commitment to the elimination of
nuclear weapons entered into by all nuclear weapon states. Efforts to
reinvigorate Article VI may bring greater rewards than despairing of
its potential. This is especially the case in view of the strong
reaffirmation of the NPT provided by the 1995 decision of NPT parties
to extend the Treaty indefinitely.
On the other hand, there are advantages to the proposal for a
comprehensive new treaty. The new treaty option may also allow some
distance from the disappointing implementation record of Article VI
and from acrimonious debate about the extent to which the NPT is
discriminatory. As to the risk that efforts towards a new treaty may
undermine the achievements of the NPT without necessarily proving a
better vehicle for disarmament, one or two options suggest themselves
as ways of minimising that danger:
While universal adherence to a new treaty would be the goal, no means
exist to force all states to adhere to it. Even if it were
universally accepted that the possession of nuclear weapons breached
customary international law, states would not be thereby obliged to
accept the particular variant of non-proliferation and verification
commitments negotiated in the new treaty. However, there is no legal
difficulty in formulating an absolute treaty prohibition on the
development and possession of nuclear or any other weapons, and in
giving such a prohibition binding force for the states parties.
Fundamental, in any reflection on the legal regime required as a
basic part of the architecture for a nuclear weapon free world, is
the recognition that the legal regime supports but does not
itself bring about such a world. Questions about what the legal
regime would comprise are important and do play a role in the
political negotiations through which a nuclear weapon free world will
be established. But it is these negotiations and determination to
make them effective which are central to the elimination of nuclear
weapons.
Mandate
The Commission will develop ideas and proposals for a concrete and
realistic program to achieve a world totally free of nuclear weapons.
The proliferation of nuclear weapons is widely recognised as having
become the most serious threat to global security, and member states
of the United Nations and the Treaty on the Non-Proliferation of
Nuclear Weapons (NPT) have committed themselves to the objective of a
world totally free of nuclear weapons. While various studies relevant
to the achievement of such a world have been and are being conducted,
there has been no attempt to develop a comprehensive and practical
answer to the crucial question of how this objective can be
achieved.
The practical steps towards a nuclear weapon free world, to be
suggested by the Commission, will also address the related problem of
maintaining stability and security during the transitional period and
after the ultimate goal is accomplished.
The Commission will present a report to the Prime Minister of
Australia by 31 August 1996. It is the Government of Australia's
intention to submit the Commission's report to the 51st Session of
the General Assembly of the United Nations and to the Conference on
Disarmament.
The Commission will consider and develop recommendations on the
following issues:
November 1995
The Commissioners