The Canberra Commission on the Elimination of Nuclear Weapons
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.
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.
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.
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.
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.
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.
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.
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:
- The new treaty could provide that none of its provisions were intended to affect the operation of the NPT until such time as the new treaty had both entered into force and been adhered to by every state party to the NPT. At that stage, the NPT would be terminated, either explicitly by the terms of the new treaty, to which all NPT parties had adhered, or implicitly by virtue of Article 59 of the Vienna Convention on the Law of Treaties ­p; assuming that the new treaty would either subsume the NPT in its entirety or be incapable of simultaneous application with it. However, this would be a very elaborate solution, and confusion would be likely as to the interaction between the provisions of the new treaty and those of the NPT during the period before the NPT was terminated
- The new treaty could provide that it was to enter into force only after it had been ratified by all states party to the NPT. Again, the NPT would at that stage be terminated, whether explicitly or implicitly. Thus, the provisions of the NPT would not be jeopardised prior to the clear-cut replacement of the NPT regime with the regime ushered in by the entry into force of the new treaty. The difficulty here is that such a high threshold requirement for entry into force may mean that the new treaty never did enter into force, so that despite all the efforts towards a new treaty the practical outcome would be the continuation of an unimproved NPT regime.
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.
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:
- Identification of concrete and realistic steps for achieving a
nuclear weapon free world, including the development and
establishment of necessary verification and control mechanisms and
new international legal obligations. Possible areas of focus
- the contribution of a Comprehensive Test Ban Treaty; nuclear weapon free zones; a 'cut-off' convention on the cessation of production of fissile material for nuclear weapons; a possible treaty requiring all states to declare and account for their present stocks of fissile material; and the strengthening of the international safeguards system;
- carrying through of the commitment by the nuclear weapon states to eliminate their nuclear stockpiles through a systematic process, including safe and secure arrangements for weapons dismantlement and destruction; and
- the problem of nuclear threshold states and the related issue of achieving universal participation in the NPT.
- Development of durable security arrangements, both globally
and regionally, including:
- the maintenance of a system of stable deterrence while the reduction and eventual elimination of nuclear weapons is being achieved;
- the link with other weapons of mass destruction and their control or elimination; and
- measures to prevent break-out, nuclear theft and nuclear terrorism/criminality.
- Other related issues the Commission may identify during its work.
Ambassador Amorim was Brazilian Foreign Minister from 1993-1994, and Lecturer, Department of Political Science and International Relations, University of Brasilia. He was Ambassador to the Conference on Disarmament, Geneva, 1991-1993. He is currently Brazil's Permanent Representative to the United Nations, New York.
General (Ret.) Butler was Commander in Chief of the US Strategic Air Command (1991-1992) and subsequently the US Strategic Command (1992-1994) with responsibility for all US Air Force and Navy nuclear deterrent forces. He was closely involved in the development of US nuclear doctrine.
Richard Butler (Convenor)
Ambassador Butler was Australia's Ambassador for Disarmament from 1983-1988 and led the Australian Delegation to the Conference on Disarmament. He is now Australia's Permanent Representative to the United Nations, New York.
Field Marshal Lord Carver was Commander in Chief Far East of the British Army (1967-1969), Chief of General Staff (1971-1973), and Chief of Defence Staff (1973-1976). He is author of A Policy for Peace (1982), on nuclear policy, and numerous other works on military history.
Captain Cousteau, writer, film producer and former naval officer, has been for many years a leading international campaigner on environmental and global survival issues. He is a former President of the French Council for the Rights of Future Generations established by President Mitterrand in 1993.
Ambassador Dhanapala chaired the 1995 Nuclear Non-Proliferation Treaty Review and Extension Conference, represented his country in the Conference on Disarmament as Permanent Representative of Sri Lanka to the United Nations, Geneva (1984-1987), and is a former Director of the UN Institute for Disarmament Research (UNIDIR). He is a prominent figure in international nuclear non-proliferation and disarmament issues and is currently Sri Lanka's Ambassador to the United States.
Ambassador Ekeus is Executive Chairman, United Nations Special Commission (UNSCOM), whose mandate is to identify and eliminate Iraq's weapons of mass destruction. He is a former Swedish Ambassador for Disarmament and Ambassador to the Conference on Security and Co-operation in Europe (CSCE).
Ambassador Elaraby is a specialist international lawyer and a member of the International Law Commission. He has been a key figure in nuclear non-proliferation matters for many years, and was formerly Permanent Representative of Egypt to the United Nations, Geneva (1987-1991). He is currently Permanent Representative of Egypt to the United Nations, New York.
Professor Imai is a Counsellor to the Atomic Energy Commission of Japan and a Professor at Kyorin University. He is a former Ambassador of Japan to the Conference on Disarmament (1982-1987), to Kuwait and to Mexico. He has been a Distinguished Scholar and a member of the Board of the Institute for International Policy Studies. Professor Imai is an author of numerous books and articles mainly on nuclear energy, non-proliferation and disarmament matters. He received a Dr. Eng in Nuclear Engineering from the University of Tokyo. He is a member of the International Governing Board of the Stockholm International Peace Research Institute (SIPRI).
Datuk McCoy is Vice President of the Asia Pacific Region and Chairman of the Malaysian Chapter of International Physicians for the Prevention of Nuclear War. This organisation won the Nobel Peace Prize in 1985. He is currently President of the Malaysian Medical Association.
Mr McNamara was Secretary of Defense under Presidents Kennedy and Johnson. He is a former President of the Ford Motor Company and the World Bank. Since leaving the World Bank he has been active in economic and development efforts across the globe and in the areas of arms control and nuclear non-proliferation.
Professor O'Neill is Chichele Professor of the History of War, All Souls College, Oxford University and was formerly Director, International Institute of Strategic Studies, London.
Ambassador Qian is a member of the National Committee and Vice-Chairman of the Foreign Affairs Committee of the Chinese People's Political Consultative Conference. Previously, he was Deputy Director-General of the China Centre for International Studies, Ambassador and Permanent Representative to the United Nations in Geneva, Ambassador for Disarmament Affairs and Representative to the Conference on Disarmament.
M. Rocard was Prime Minister of France 1988-1991. He is now a member of the European Parliament and the French Senate, and a member of the Foreign Affairs and Defence Commission in each.
Professor Rotblat, winner of the 1995 Nobel Peace Prize, is President of the Pugwash Conferences on Science and World Affairs and a long standing activist and writer on nuclear disarmament. He worked on the atom bomb during World War II in Liverpool and Los Alamos and was a signatory of the Russell-Einstein Manifesto. He is Emeritus Professor of Physics at St Bartholomew's Hospital, University of London.
Professor Sagdeev is Distinguished Professor, Department of Physics, University of Maryland and Director of the East-West Space Science Centre. He has held the post of Director of the Space Research Institute of the USSR Academy of Sciences and was former President Gorbachev's science adviser. From 1987-1988 Professor Sagdeev was Chairman of the Committee of Soviet Scientists for Global Security.
Maj Britt Theorin
Dr Theorin has been a Member of the European Parliament since 1995 and is a former Member of Parliament in Sweden (1971-1995). She is a former Swedish Ambassador for Disarmament, in charge of Swedish disarmament policy (1982-1991). She is President of the International Peace Bureau and President of Parliamentarians for Global Action. She was Chairman of the UN Commission of Experts on Nuclear Weapons (1989-1990), Chairman of the UN Study on Military and the Environment (1990-1991) and Chairman of the UN Expert Group on Women and the Agenda for Peace 1994.
The Commission received encouragement and assistance from a wide range of sources. Background papers on issues relevant to the report were prepared by Alexei Arbatov (Deputy Chair of the Defense Committee, State Duma of the Russian Federation), Eric Arnett (SIPRI), Frank Blackaby (former Director of SIPRI), Barry M. Blechman and Cathleen S. Fisher (Henry L. Stimson Center), James Crawford and Philippe Sands (University of Cambridge and the University of London respectively), Jonathan Dean (Union of Concerned Scientists), John P. Holdren (University of California), James Leonard (Washington Council on Non-Proliferation), Andrew Mack (Australian National University), Michael MccGwire (University of Cambridge), Marvin Miller (Massachusetts Institute of Technology), Janne E. Nolan (Brookings Institution), Christopher E. Paine, Thomas B. Cochran and Robert S. Norris (Natural Resources Defense Council), Tariq Rauf (Monterey Institute of International Studies), Leonard S. Spector (Carnegie Endowment for International Peace) and Ramesh Thakur (Australian National University). These papers will be published separately.
Valuable comments on the Verification Annex were provided by Bruno Pellaud, Mohamed ElBaradei and Rich Hooper of the International Atomic Energy Agency, Patricia M. Lewis of the Verification Technology Information Centre and Theodore B. Taylor. Commissioners also noted the paper 'Verifying Nuclear Disarmament' by Steve Fetter of the University of Maryland.
Thanks are due to Dr Hans Blix, Director General, International Atomic Energy Agency, and his senior staff for meeting Commissioners to discuss verification issues.
The Commission met four times, twice in Australia, once in the United States and once in Austria. Staff at the meeting venues were of great assistance to the Commission, particularly at the Harrison Conference Center at Glen Cove, NY and the proprietors of the Schlosshotel Obermayerhofen, Sebersdorf, Austria, Mr and Mrs Kottulinsky.
The Commission welcomed the opportunity to meet with the Austrian State Secretary for Foreign Affairs, Dr Benita Ferrero-Waldner. It deeply appreciated the Austrian Government's generous contribution toward costs of the Sebersdorf meeting.
The Commission gratefully acknowledges the support of the Australian Government, the support and work of the Secretariat and staff at Australia's overseas missions, without which this report would not have been possible. While the Commission was established by the Australian Government the views expressed in this report are those of the Commission alone, and should not be understood as representing, necessarily, attitudes or policies of the Australian Government.
A secretariat was established within the Australian Department of Foreign Affairs and Trade to support the Commission.
Rory Steele (Head of the Secretariat)
Chui Fong Yap
Julie McDonald (Media Liaison)
A number of other Australian officials assisted the Commission, in particular Mr Kim Jones, Deputy Secretary, Department of Foreign Affairs and Trade, Mr Ian Cousins, First Assistant Secretary, International Security Division, Department of Foreign Affairs and Trade and Dr Ron Huisken, Assistant Secretary, North America and Intelligence Branch, Department of Defence.