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(Part – 1)
“If wishes were horses, beggars would ride!” If wishful thinking was all that mattered, the poor could have wished away poverty by merely passing a resolution abolishing global poverty! But can such a wish be fulfilled as long as resources continue to remain under the control of the rich? Then how could 122 Non-Nuclear-Weapon-States (NNWS) adopt a treaty to eliminate nuclear weapons (which they do not possess) without placing the onus of responsibility on the Nuclear Weapon States (NWS) to prohibit use or threat of use of nuclear weapons until their elimination? Why do these NNWS delude themselves about nuclear disarmament when they are averse to taking the NWS to task in this regard?
The ‘Draft Convention on Prohibition of Nuclear Weapons’ was released by the UN on May 22, 2017 and a detailed critique of the same was published in a four-part article titled “No More Con Games: Abolish Nuclear Weapons Now!”. On Jul 07, 2017, at the United Nations, 122 NNWS adopted the “Treaty on the Prohibition of Nuclear Weapons.”There is substantial difference between the Draft Text of May 22, 2017 and the Revised Text of Jul 06, 2017 that was adopted on Jul 07, 2017.
The preamble to the Revised Text has been significantly amended. In the in-depth critique of the Draft Text (see para between fn. nos. 78 & 79) it was pointed out that several key aspects, which are essential for reducing the nuclear threat, had not been included in it. That there were no references to:
* The fact that nuclear holocaust may result from accident, miscalculation, etc.
* The use or threat of use of nuclear weapons as constituting a crime against humanity.
* The Right of Self Defense enshrined in Article 51 of the UN Charter as not empowering any member-state to commit genocide; that member-states should only act in a manner, which is in consonance with Article 2(4) of the UN Charter (to refrain from threat or use of force against fellow member-states);
* The fact that nuclear weapons cannot protect life in any way; that its use either through a preemptive attack or through a retaliatory attack can only cause widespread death and devastation;
* Significance of key Resolutions adopted by the UN General Assembly on Jan 24, 1946; Dec 20, 1961, etc.
In this regard, it is gratifying to note that the Revised Text has inserted the following paras to strengthen the preamble:
* “Mindful of the risks posed by the continued existence of nuclear weapons, including from any nuclear-weapon detonation by accident, miscalculation or design, and emphasizing that these risks concern the security of all humanity, and that all States share the responsibility to prevent any use of nuclear weapons”;
* “Considering that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law”;
* “Reaffirming that any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience”;
* “Recalling that, in accordance with the Charter of the United Nations, States must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, and that the establishment and maintenance of international peace and security are to be promoted with the least diversion for armaments of the world’s human and economic resources”;
* “Recalling also the first resolution of the General Assembly of the United Nations, adopted on 24 January 1946, and subsequent resolutions which call for the elimination of nuclear weapons”.
These amendments to the preamble are of course welcome. However, the changes incorporated in the rest of the Revised Text do not appear to be substantial enough to rectify all the deficiencies in the Draft Text. This would be apparent from examining the operational clauses of the Revised Text. In the in-depth critique of the Draft Text (in para4), it was noted that the Draft Text was totally disappointing since it was in no way designed to achieve the purported objective of prohibiting the use and threat of use of nuclear weapons that are in the possession of the nuclear weapon states (NWS).
Article – 1
In the Revised Text, the title of Article – 1 was changed from ‘General obligations’ to ‘Prohibition’. Some modifications were made in the rest of Article – 1 as well. The Revised Article – 1 states as follows:
“1. Each State Party undertakes never under any circumstances to:
(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;
(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;
(c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;
(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;
(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;
(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;
(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.”
As noted earlier, the call to freeze development, manufacture and stockpiling of nuclear weapons is, indeed, welcome and, theoretically, it could be applicable to both Nuclear Weapon States (NWS) as well as Non-Nuclear Weapon States (NNWS). Unfortunately, the sub-clauses in Article – 1 (never to “Transfer to any recipient whatsoever nuclear weapons” and never to “use or threaten to use nuclear weapons”), while appearing as positive ones, are mere window dressing because these provisions even in the Revised Text are not addressed to the NWS. It is the NWS, which have to give a categorical undertaking not to use nuclear weapons against NNWS under any circumstances and not to use it first against fellow NWS. Similarly, only NWS have deployed nuclear weapons on foreign territories/ international waters and it is their responsibility to withdraw the same. Of course, the NNWS on whose territory such nuclear weapons have been deployed should also demand that the same be withdrawn.
Invisibility of NWS
As long as the NNWS do not insist through sustained public pressure that the NWS comply with the provisions of Article – 1, the NWS are unlikely to unilaterally accede to this Treaty and take requisite steps to comply with these provisions. Unfortunately, there are no provisions even in the Revised Text that are intended to compel the NWS to comply with these provisions or hold the NWS accountable for the nuclear threat hanging over the world. This benign non-committal stance of the 122 NNWS fits in well with the philosophy of abstinence and self purification and it allows the NNWS to turn a blind-eye to the threat of nuclear holocaust held out by the NWS. This is the biggest drawback of the propounded ‘Prohibition’ Treaty: the complete failure to recognize the existence of NWS and to hold them accountable for the impending nuclear threat facing humanity and the failure to insist that the NWS end their nuclear blackmail forthwith and take requisite steps to speedily proceed towards global nuclear disarmament.
Moreover, while the preamble to the Revised Text recognizes that “prohibition of nuclear weapons constitutes an important contribution towards the achievement and maintenance of a world free of nuclear weapons”, there are no provisions in it that actually seek to outlaw the production and stockpiling of nuclear weapons. An equally distressing aspect is that, while the preamble lays emphasis on “the role of public conscience in the furthering of the principles of humanity as evidenced by the call for the total elimination of nuclear weapons”, there are no provisions in it that actually seek to eliminate the existing stockpile of nuclear weapons in a time-bound manner.
Instead, what is provided in Article 8 of the Revised Text is as follows: that “further measures for nuclear disarmament, including: … Measures for the verified, time-bound and irreversible elimination of nuclear-weapon programmes…” would be considered at subsequent meetings of State Parties to the Treaty. In short, the issue of nuclear disarmament is not a part of the present Treaty and the matter would only be considered at a later date. Therefore, the very title of the Revised Text, which is “Treaty on the Prohibition of Nuclear Weapons”, is totally misleading since it has nothing to do with prohibiting the use or threat of use of nuclear weapons that are in the possession of the NWS until their elimination.
Article – 2
Article – 2 of the Draft Text has been drastically amended by deleting the requisition for a State Party to declare whether it had acquired “nuclear weapons or any nuclear explosive devise after 05 December 2001.” Thereby, the misguided attempt at targeting merely North Korea has been dispensed with. A significant inclusion is Article – 2(c), which is as follows: “Notwithstanding Article 1 (g), declare whether there are 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.”
Article – 3 of the Revised Text deals with procedural matters such as safeguards and requires no comments.
Article – 4
Article – 4 consists of a set of obligations, which are to be fulfilled by those nuclear weapon states that opt to join the propounded ‘Prohibition’ Treaty after Jul 07, 2017 by agreeing to unilaterally eliminate their nuclear weapons. The obligations on such NWS include a commitment to “immediately remove them [nuclear weapons] from operational status”. [Article 4(2)] It is inexplicable as to why the 122 NNWS, i.e., the supporters of the propounded ‘Prohibition’ Treaty, have not demanded that every NWS should comply with this obligation to de-alert deployed nuclear weapons immediately. Several other Nuclear Risk Reduction Measures (NRRMs) should also have been demanded from the NWS such as:
(a) separate nuclear warheads from delivery systems;
(b) remove guidance systems from missiles;
(c) shut down power to the missiles;
(d) end the permanent patrol of submarines with SLBMs;
(e) withdraw all nuclear weapons to national territory (i.e., non-deployment of nuclear weapons on the territories of NNWS)
(f) stop training pilots from non-nuclear-weapon states for nuclear missions;
(g) remove all associated nuclear infrastructures of NWS from the territories of NNWS;
(h) end the deployment of tactical nuclear weapons; and
(i) reduce and eliminate tactical nuclear weapons.
Furthermore, there was no attempt to elicit a commitment from NWS never to use nuclear weapons against NNWS. It is so unfortunate that there is nothing in the propounded ‘Prohibition’ Treaty that seeks to reduce the nuclear threat from nuclear weapons in the possession of the NWS even against the very signatories to the propounded ‘Prohibition’ Treaty.
Article – 5 is a procedural matter and needs no response.
Articles – 6
Article – 6 is about the responsibility of each State Party to provide assistance to individual victims of a nuclear holocaust or to those affected by nuclear weapon tests within the area under their jurisdiction in accordance with applicable international humanitarian and human rights law. It also places the onus of responsibility on the State Party for environmental remediation of the areas so contaminated under its jurisdiction. However, Article – 6 is totally silent about holding the concerned NWS, which are the only sources from where such threats against State Parties in the form of nuclear attack or environmental destruction could emanate, to task. The propounded ‘Prohibition’ Treaty refrains from identifying the source of the nuclear threat. Instead of proposing action, it feigns ignorance about the source of the problem!
Article – 7
Under Article – 7, only “a State Party that has used or tested nuclear weapons or any other nuclear explosive devices shall have a responsibility to provide adequate assistance to affected States Parties, for the purpose of victim assistance and environmental remediation.” How could a State Party, which by definition has ostensibly made a commitment not to use or test nuclear weapons, use nuclear weapons on other State Parties or test nuclear weapons that affect areas under the jurisdiction of other State Parties? Only a NWS, which is a non-State Party to the propounded ‘Prohibition’ Treaty, is likely to use nuclear weapons on a State Party or test nuclear weapons, which may also affect an area under the jurisdiction of a State Party. However, there are no provisions in the propounded ‘Prohibition’ Treaty to act against those NWS that are not parties to the propounded ‘Prohibition’ Treaty but who have no compunctions in using nuclear weapons against State Parties to the propounded ‘Prohibition’ Treaty.
Article – 8
As already noted above, Article – 8 makes it clear that the issue of nuclear disarmament is not a part of the present Treaty and the matter would only be considered at a later date at subsequent meetings of the State Parties to the propounded ‘Prohibition’ Treaty.
Articles – 9, 10 & 11 only deal with procedural matters and need no response.
Article – 12
Article – 12 states that: “Each State Party shall encourage States not party to this Treaty to sign, ratify, accept, approve or accede to the Treaty, with the goal of universal adherence of all States to the Treaty.” While the ultimate goal of the propounded “Prohibition’ Treaty is admirable, there is nothing in the Treaty about possible interim measures to stave off the nuclear threat posed by NWS against the very signatories to the propounded ‘Prohibition’ Treaty until the NWS agree to eliminate their nuclear weapons. The predicament is that the propounded ‘Prohibition’ Treaty does not even recognize the existence of a group of nations possessing nuclear weapons. Therefore, the propounded ‘Prohibition’ Treaty has made no attempt to impose any set of obligations on the NWS. When the existence of a problem is not even recognized, the need to propose a solution does not arise either (a phenomenon that psychologists describe as ‘solution aversion’)!
Articles – 13 to 17 deal with procedural matters and require no response.
Article – 18
Article – 18 states as follows: “The implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty.” It may be noted that, while the Nuclear Non-Proliferation Treaty (NPT) was given overarching importance in Article – 19 of the Draft Text, in the Revised Text (as stated in Article – 18), it has been clarified that the “obligations undertaken by States Parties with regard to existing international agreements” is only to the extent “where those obligations are consistent with the [‘Prohibition’] Treaty.” This is a very significant change in stance between the Draft Text of May 22, 2017 and the Revised Text of Jul 06, 2017, which was adopted by 122 NNWS on Jul 07, 2017.
The Draft Text was completely subservient to the NPT with its Article – 19 stating as follows: “This Convention does not affect the rights and obligations of the State Parties under the Treaty on the Non-Proliferation of Nuclear Weapons.” However, in the Revised Text, the reference to NPT has been obliterated from Article 18. Although it has lost its centrality in the Revised Text, reference to the NPT (as well as, CTBT and NWFZs) has been modified and retained in the preamble as follows:
* “Reaffirming also that the full and effective implementation of the Treaty on the Non-Proliferation of Nuclear Weapons[NPT], which serves as the cornerstone of the nuclear disarmament and non-proliferation regime, has a vital role to play in promoting international peace and security”;
* “Recognizing the vital importance of the Comprehensive Nuclear-Test-Ban Treaty [CTBT] and its verification regime as a core element of the nuclear disarmament and non-proliferation regime”;
* “Reaffirming the conviction that the establishment of the internationally recognized nuclear-weapon-free zones [NWFZs] on the basis of arrangements freely arrived at among the States of the region concerned enhances global and regional peace and security, strengthens the nuclear non-proliferation regime and contributes towards realizing the objective of nuclear disarmament.”
Unlike the Draft Text, the Revised Text’s position on the NPT is contradictory.
[To be continued]