The Upcoming NPT Review Conference: A Make-it or Break-it Moment for Nuclear Disarmament?
On Friday, March 11, 2022, the Parties to the NPT announced that the Tenth NPT Review Conference will be held in New York from August 1-26, 2022. Since the previous Review Conference in 2015, a number of developments have significantly affected the nuclear non-proliferation and disarmament regime—some for better, most for worse. The patience of the international community with NPT Nuclear Weapon States is wearing thin. As the international security environment deteriorates, there is little tolerance for withdrawal from treaties, modernization of arsenals, and reinterpreting the NPT to establish new preconditions for disarmament. With the decay of Article VI risking contamination of the remaining treaty, the upcoming review conference may represent a last chance to turn over a new leaf.
A rendition of the “The Knotted Gun,” donated by the Permanent Mission of Sweden to the International Atomic Energy Agency (IAEA). The original sculpture adorns the plaza of the UN Headquarters in New York. Created by Carl Fredrik Reuterswärd; color pattern by Paul McCartney. Photo: Wikimedia Commons.
By: Michael J. Moffatt, Staff Member
Half a century after its entry into force, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) constitutes a monument to both the success and failure of multilateral diplomacy. With nearly universal membership and the support of the International Atomic Energy Agency (IAEA), it has kept the threat of nuclear proliferation at bay, while unlocking the benefits of nuclear technology. But it has also come to epitomize double standards in the creation and application of international law, dividing its 191 parties into five “haves,” the Nuclear Weapon States (NWS), and the remaining “have nots,” the Non-Nuclear Weapon States (NNWS). This two-class regime is based upon the “grand bargain” of the treaty—the NNWS forego nuclear weapons and in return, receive access to know-how and technology as well as the promise that NWS will relinquish their nuclear weapons. With an elaborate system of legal and practical restraints, one side of the bargain has been widely upheld and rigorously enforced. Conversely, though “the scorecard looks good with regard to non-proliferation . . . the implementation of disarmament obligations under article VI is severely lagging behind.”
Precisely this issue—the implementation of Article VI of the NPT—has divided the international community for decades and is expected to come to a head at the upcoming quinquennial NPT Review Conference under provisional agenda items 16(a)(ii) and (18). When the parties last convened to review the operation of the treaty in 2015, the event concluded without adopting a final declaration. The intervening years have seen a flurry of activity, with the United States withdrawing from the Iran Deal (JCPOA) in 2018, the Intermediate-Range Nuclear Forces Treaty (INF) in 2019, and, together with Russia, the Open-Skies Treaty in 2020/2021. The Comprehensive Nuclear-Test-Ban Treaty (CTBT) has yet to enter into force and negotiations on a Fissile Material Cut-Off Treaty (FMCT) are yet to begin.
Practically all States with nuclear weapons are modernizing their arsenals. Ukraine, one of the few States to voluntarily relinquish its nuclear weapons in exchange for security assurances, faces a full-scale Russian invasion. Tensions are high as Russia has announced that its nuclear deterrent forces are on high alert. Conversely, 2020 saw the entry into force of the Treaty on the Prohibition of Nuclear Weapons (TPNW), the first agreement to comprehensively ban nuclear weapons, and 2021 the extension of the New Strategic Arms Reduction (START) Treaty between Russia and the United States. Against this backdrop, the stability of the nuclear non-proliferation and disarmament regime is now perhaps more critical—and threatened—than at any other time since the Cold War.
Interpreting Article VI
At the heart of this issue is a problem of treaty law, the interpretation and application of Article VI, NPT. The dispute pits the NWS against the NNWS, with nuclear umbrella States in between. The text of the provision reads:
“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”
The exact meaning of this provision has been subject to extensive academic and diplomatic debate, with some experts suggesting that Article VI does not require any specific steps towards any specific outcome within any specific period of time. The perhaps most authoritative, though non-binding, interpretation of the norm is that of the International Court of Justice (ICJ) rendered in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, where it held:
“[99] The . . . obligation goes beyond . . . a mere obligation of conduct; the obligation . . . is an obligation to achieve a precise result—nuclear disarmament in all its aspects—by adopting a particular course of conduct, namely . . . [105(2)F.] to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”
The preamble of the NPT, in particular preambular paragraph 11, linking “elimination of . . . nuclear weapons” to “a [t]reaty on general and complete disarmament,” supports this interpretation, together with paragraphs 8-10 and 12, which cite cooperation towards effective disarmament, banning tests and the prohibition of the threat or use of force. Evidently, pursuant to the customary rules of treaty interpretation codified in Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties (VCLT), a treaty’s preamble constitutes part of the context in which the terms of a treaty must be interpreted. The noted elements of the preamble have also been consistently tied to Article VI throughout the treaty’s review cycle.
At previous review conferences in 1995, 2000, and 2010, the parties adopted a series of relevant final documents by consensus, outlining specific commitments to be performed by the parties in general and NWS in particular in relation to Article VI. These included paragraph 4(c) of the 1995 “principles and objectives,” citing, for the “full realization and effective implementation of Article VI,” “[t]he determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating those weapons.”
On this basis, in 2000, the parties then agreed to “13 Steps” to implement Article VI, which included, in Step 9, a series of measures by all NWS, such as reduction of certain nuclear weapons, increased transparency and regular reporting, as well as, in Step 6, “[a]n unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament, to which all States parties are committed under article VI.” In 2010, the Review Conference adopted a set of corresponding “22 Actions,” such as Action 3, which read “[i]n implementing the unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals, the nuclear-weapon States commit to undertake further efforts to reduce and ultimately eliminate all types of nuclear weapons, deployed and non-deployed, including through unilateral, bilateral, regional and multilateral measures.”
The parties have expressed diverging views on the legal quality of such consensus documents, often distinguishing them as “commitments” from the “obligation” under Article VI. Yet, from the perspective of treaty interpretation, it is perfectly possible that the relevant documents may reflect subsequent agreement or practice between the parties, which is to be taken into account pursuant to Article 31(3)(a) and (b) VCLT. In its commentaries on the VCLT, the International Law Commission (ILC) explained that such subsequent conduct may reflect authentic interpretation of a treaty, i.e., unfold a binding effect. In its 2018 commentaries on the draft conclusions on subsequent agreements and subsequent practice, the ILC cites decisions by NPT review conferences as an example of potential sources of subsequent agreement—noting, however, that they are “authoritative” rather than authentic interpretations and “not legally binding.”
To determine the character of such decisions, the ILC refers to certain criteria, including (1) specificity and clarity of terms in light of the decision’s text as a whole, (2) the object and purpose of the decision, and (3) the way in which it is applied. In some respects, the relevant language appears rather clear and specific and adopted in a decision serving the purpose of review conferences, i.e., “assuring that the purposes of the Preamble and the provisions of the Treaty are being realised.” It is therefore not surprising that some scholars consider decisions at review conferences reflective of subsequent agreement or practice, while others take the opposite view. Whatever the quality of these decisions may be, they are regularly invoked by the parties, in particular the NNWS, to inform demands vis-à-vis the NWS. Individual NNWS have warned that the failure by NWS to fully implement such decisions constitutes a threat to the disarmament and non-proliferation regime.
The Parties’ Current Positions
In advance of the upcoming review conference, States have expressed starkly divergent positions with a view to both what Article VI requires and whether the NWS have lived up to it. The NWS share some common ground, as reflected, for example, in a recent Joint Communiqué emerging out of the “P5 process.” In particular, China, Russia, the United Kingdom, and the United States all share the view that the current security environment prevents them from taking certain further disarmament actions. China and Russia refer to the development of a global missile defense system and weaponization of outer space (by the United States), asserting that sharing arrangements conflict with the NPT and calling for the withdrawal of nuclear weapons from NNWS territory. The United States, in turn, refers to China, Russia and the DPRK increasing stockpiles, diversifying capabilities, and testing missiles and suggests that addressing security concerns, not numerical reduction or immediate abolition, are necessary to implement Article VI.
Interestingly, the United States quotes preambular paragraph 11 of the NPT, which cites the parties’ desire to “further the easing of international tension and the strengthening of trust between States in order to facilitate . . . elimination . . . of nuclear weapons” to support its assertion that easing of tensions is a “necessary starting point” for disarmament. It proposes that the U.S. Creating an Environment for Nuclear Disarmament (CEND) initiative, tasked with identifying and addressing security concerns, may be conducive to this end. China is equally reluctant to take any further steps, suggesting that a prior “drastic reduction” by Russia and the United States is required first.
With a view to actions taken, compared to peak capabilities, Russia claims to have reduced its arsenal by 85% and the United States by 88%, while the United Kingdom suggests that it has halved its arsenal, honored a nuclear weapon fissile material-moratorium since 1994 and irreversibly dismantled production facilities (with the latter also being true for France). Though some NWS had originally claimed that the TPNW was incompatible with the NPT, they seem to have recently relaxed their stance.
NNWS, in turn, have considered the illustrated position of the NWS with a view to their security environment as setting out a precondition that is incompatible with Article VI. The New Agenda Coalition (NAC), a group of NNWS, has argued that a poor security situation does not preclude, but rather reinforces, a need for duly implementing Article VI. Instead of employing security concerns to plan for continued retention of nuclear weapons and thus potentially “encourage proliferation,” NWS could contribute to an easing of tensions by acting upon existing nuclear disarmament obligations now.
Similarly, Ireland has argued that with new cyber risks, such as manipulation and the diminished opportunity for human intervention caused by automation, it is essential to shift the focus of implementing Article VI from actors to weapons. A group of NNWS including Austria has cautioned that “reinterpreting” Article VI and setting new preconditions to its implementation threatens to erode the NPT. These States question the commitment of the NWS to the grand bargain and warn that NNWS could be equally tempted to liberally interpret the non-proliferation-related provisions of the NPT and resort to unilateral measures of their own.
While the Non-Aligned Movement (NAM) has lauded NWS for individual bilateral and unilateral reductions, and other States, including Austria, have positively emphasized the successes of the Strategic Offensive Reductions Treaty (SORT), START I and New START, there is a concern that NWS have slowed down and begun reversing any disarmament progress made. Citing the U.S. withdrawal from relevant treaties, modernization of its arsenals, as well as the development of new infrastructure and delivery systems, missile defense systems and outer space weaponization, NNWS have warned that these and similar measures by other NWS could trigger a new arms race. NAM has further emphasized that the lack of progress by NWS towards fulfilling Article VI undermines the object and purpose of the NPT—language which may allude to a material breach pursuant to Article 60 3.A(b) of the VCLT.
In terms of potential solutions for the present confrontation, several NNWS have pointed to the TPNW as an effective means of implementing Article VI and called for its endorsement at the conference in light of its adoption by the vast majority of NPT parties. States have insisted that NWS honor decisions taken at previous review conferences, in particular, by increasing accountability through transparency and measurability and pursuing a phased elimination program within a specific timeframe, with benchmarks, targets, and deadlines.
NAC has called for current, complete and comparable information from NWS to establish a baseline of NWS and Sharing State capabilities, before proceeding with standardized reporting via a template (listing, for example, the number, type, and status of weapons, as well as delivery systems and materials, together with a list of disarmament measures taken) via an institutional monitoring mechanism. NNWS have further called upon NWS to honor Article VI, stop eroding the NPT, refrain from setting new conditions, subscribe to further legally binding measures for nuclear-weapon reduction, cease modernizing, upgrading and refurbishing nuclear weapons and related infrastructure, and establish a subsidiary body to Main Committee I at the Review Conference to develop practical measures for the implementation of Article VI.
Outlook
The NPT exists in a balance between non-proliferation and disarmament. Dissatisfied with the lack of disarmament progress by NWS, NNWS have undertaken a series of measures, from turning to the ICJ for an advisory opinion, to procuring concrete commitments at the 1995, 2000, and 2010 Review Conferences, refusing to accept enhanced non-proliferation obligations under an Additional Protocol, withdrawing from the NPT, suing NWS at the ICJ, and adopting the TPNW.
NNWS have made clear that failure by NWS to honor Article VI conflicts with the object and purpose of the treaty and that they will not tolerate reinterpreting disarmament obligations in a manner that sets new preconditions. These States have warned that the current conduct of NWS—terminating arms control arrangements while modernizing nuclear arsenals and ascribing new meaning to the NPT—risks stimulating a similar response from NNWS. The logic advanced by the NWS that nuclear weapons are indispensable for the security of some States but inadmissible for that of others appears to be approaching a breaking point. As a synallagmatic arrangement, the grand bargain reflects two sides of one equation: if disarmament shifts to non-disarmament, non-proliferation may shift to proliferation.
Michael J. Moffatt is an L.L.M. Candidate at Columbia Law School, PhD Candidate at the University of Vienna and a Staff Member of the Columbia Journal of Transnational Law. He graduated from the University of Vienna in 2016 and the International School of Nuclear Law (OECD-NEA/University of Montpellier) in 2018. His dissertation on the compatibility of the NPT and TPNW was published in the OECD Nuclear Law Bulletin No. 102 (2019/1). Prior to joining Columbia, he served as an Associate Legal Officer in the Office of Legal Affairs of the International Atomic Energy Agency (IAEA), as well as a Researcher and Lecturer at the University of Vienna, Section for International Law and International Relations.