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Nuclear Weapons ConventionCommentary on the MNWC
Introduction

I. General Obligations
   A. State Obligations

II. Definitions
   A. States and Persons
   B. Nuclear Weapons
   E. Nuclear Facilities
   F. Nuclear Materials
   G. Nuclear Activities
   H. Verification

III. Declarations
  
B. Nuclear Material

IV. Phases for Implementation

V. Verification
   D. Confidence-Building Measures

VI. National Implementation Measures

VII. Rights and Obligations of Persons

VIII. Agency
  
A. General Provisions
   B. The Conference
   C. The Executive Council
   D. Technical Secretariat
   F. Registry and Other Databases
   G. International Monitoring System
  

IX. Nuclear Material
  
A. Reconstruction and Documentation
   B. Prohibition and Control of Special Nuclear Material
   C. Other Special Nuclear Material

X. Nuclear Weapons

XI. Delivery Vehicles

XII. Nuclear Facilities

XIII. Activities Not Prohibited Under This Convention

XIV. Cooperation, Compliance and Dispute Settlement

XV. Entry into Force

XVIII. Scope and Application of Convention
   
A. Relation to Other International Agreements
   C. Duration and Withdrawal

Bibliography

Drafting Committee and Consultants



Introduction

The drafting of a Model Nuclear Weapons Convention ("NWC" or "Convention") serves two primary purposes. First, it provides a forum for analyzing and addressing the requirements for coordinated nuclear disarmament. Through this analysis, the drafters have sought to demonstrate the feasibility of a comprehensive plan for elimination of nuclear weapons. Second, the NWC is intended to stimulate governments to commence negotiations on such a Convention. The draft attempts to answer concerns policy makers may have regarding verification of the elimination of nuclear weapons, phases for implementation, prevention of clandestine production or acquisition of nuclear weapons, security in a non-nuclear weapon environment and possible breakout or other non-compliance.

An overriding principle guiding the drafting has been the search for a regime sufficiently restrictive to ensure the highest level of confidence in compliance, but also sufficiently permissive to allow states to join without jeopardizing their legitimate security interests and commercial activities.

The NWC has been prepared as a discussion draft for policy makers, United Nations delegations, disarmament experts, scientists and citizens' organizations. It is not presented as a finished product, but as a stimulus to discussion and an invitation for feedback. Further revisions will build on this feedback.

In shaping the NWC, the drafters, an international consortium of scientists, lawyers and disarmament experts, have leaned heavily on the approaches of other conventions, regulations and guidelines, including the following;

* Chemical Weapons Convention

* Comprehensive Test Ban Treaty

* Statute of the International Atomic Energy Agency Safeguards System

* Agreements between International Atomic Energy Agency and States Parties to the Non Proliferation Treaty

* Treaty Between the U.S.A. and the U.S.S.R. on the Elimination of Their Intermediate- Range and Short-Range Missiles (INF Treaty)

* Treaty Between the U.S.A. and the U.S.S.R. on the Reduction and Limitation of Strategic Offensive Arms (START I Treaty)

* Treaty on the Non Proliferation of Nuclear Weapons

* Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Treaty of Tlatelcolco)

* South Pacific Nuclear Free Zone Treaty (Treaty of Rarotonga)

* African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba)

* Missile Technology Control Regime

* Nuclear Suppliers Group Guidelines

* IAEA Plan for Verification of Iraq's Compliance with Security Council Resolutions 687 (1991) and 707 (1991)

The drafters have also drawn on a number of unofficial and academic sources, some of which are listed in the bibliography.

This Commentary describes the approaches taken by the drafting committee and their rationales. It also discusses unresolved questions and alternative approaches. The Commentary follows the structure of the NWC but does not address every provision.

For more discussion of the background of the NWC and its political context, see the Statement of Purpose. For a concise overview of the major provisions of the NWC, see the Summary.



I. General Obligations

A. State Obligations

The prohibitions of paragraph 1 cover delivery vehicles as well as nuclear weapons because the former are no longer required once use of the latter is prohibited. In addition, the elimination of delivery vehicles will provide greater confidence against breakout and possible use of nuclear weapons.

The prohibitions cover nuclear weapons components and special nuclear materials, i.e., materials that could be used to build a nuclear weapon. The obligation to place special nuclear materials under international control would protect against diversion of such materials.

Subparagraph 2.d, the obligation to disable or destroy command and control systems for nuclear weapons or convert them to purposes not prohibited under the Convention, is bracketed because the dual (conventional-nuclear) function and military sensitivity of these facilities might make verifiable implementation of this provision difficult.

Subparagraph 2.g makes transparency and education obligatory. The provision on education is a response to the argument that nuclear weapons technology and knowledge cannot be disinvented. The idea is to turn that argument around and in fact promote scientific responsibility and greater awareness of the link between nuclear physics and weapons development. The knowledge of the link must be actively maintained in order to support societal verification and scientific responsibility. Scientists can and should be trained to identify and warn others of activities that are, or border on, prohibited activities.

Paragraph 4 is necessary in order to ensure implementation that is consistent with the purposes of the NWC. A blanket prohibition on the transfer of prohibited material, for example, is impractical because it might prevent efficient or safe disposal of this material.



II. Definitions

A. States and Persons:

The definition of Nuclear Weapons States (NWS) includes all current declared NWS. An alternative approach would be to include any State that declares that it possesses or is known to possess nuclear weapons. Drafters of the Convention prefer not to use the latter approach because it could appear to legitimize the possession of nuclear weapons by new NWS.

The drafters have not yet resolved how the NWC should handle "threshold States," i.e., undeclared NWS or States able to construct a nuclear weapon within a relatively short period of time. This issue raises concerns that including such a definition might legitimize possession of nuclear weapons, while not including it might perpetuate the "two-tier" system of the Nuclear Non-Proliferation Treaty. On the other hand, the NWC should invite the participation of all States and promote transparency with respect to all stocks of nuclear weapons and related technology. For this reason, the current draft includes a special provision that aims to accommodate the concerns of threshold States seeking to participate in the NWC regime, without referring to them as threshold States. (See Section IV.E.)

"Natural person" means an individual. "Legal person" includes, for example, corporations.

Drafters grappled with the problem of the rights and responsibilities of Nations which are not States, such as indigenous Nations, but could not find a consistent and workable system for including such categories under this Convention. Therefore no definition is offered for indigenous Nations at this stage.



B. Nuclear Weapons:

The first definition offered under subparagraph 6.a is borrowed from the Treaty of Tlatelolco. Its possible disadvantage is the lack of specificity in the phrase "group of characteristics." However, it is a definition that has withstood the test of time. The second definition offered under subparagraph 6.a includes the language "in assembled or disassembled form" in order to prevent attempts to circumvent the provisions of the Convention by removing a key component and rendering an otherwise functional nuclear weapon temporarily inoperable. The language "designed for or capable of" allows the definition to cover devices that might not have been originally designed as nuclear weapons but could be used as such.

The NWC definition of nuclear weapons is more comprehensive than the definitions in other nuclear disarmament treaties in that it includes, in subparagraphs 6.b and 6.c, radiological weapons and weapons with nuclear triggers such as particle beam and high energy laser weapons.

The alternative definition under 6.a, with the inclusion of subparagraphs 6.b and 6.c, is very close in effect to that of the War Weapons Control Act of Germany which defines Nuclear Weapons as: "Weapons of all kinds which contain nuclear fuel materials or radioactive isotopes or which are specifically intended to accommodate or to apply [these materials], and could cause mass destruction, mass harm or mass poisoning." (Unofficial translation)

Under the definitions provided, a nuclear warhead by itself is a weapon. An alternative approach would be to consider the entire system--including the delivery vehicle--as a weapon, e.g., a complete ICBM. The advantage of this approach would be that it would clarify the political call for the elimination of nuclear weapons as including the delivery systems. The disadvantage is that it introduces complications when considering dual-use delivery vehicles. At this stage, the drafters have decided to treat warheads and delivery vehicles separately and have included separate provisions on each.

Another approach to the definition of nuclear weapons would be to follow the pattern of the Chemical Weapons Convention. The premise would be that any radioactive isotope (beyond a specified quantity or concentration) which might be used in a weapon to cause death, harm, or incapacitation to life forms or their genetic structures, must be destroyed, prohibited or carefully controlled. Under this approach, the definition of nuclear weapons might read as follows:

"Nuclear weapon" means the following, together or separately:

a. Special nuclear materials or any other potentially harmful nuclear materials, except where intended for purposes not prohibited by this Convention as long as types and quantities are consistent with such purposes;

b. Equipment and devices, specially designed to cause death or harm through the explosive or radiological properties of those nuclear materials specified in subparagraph a, which would be released as a result of such facilities and devices;

c. Any deliverable device or components thereof designed for or capable of releasing [significant amounts of] nuclear energy on a time-scale faster than or comparable to chemical explosives.

A potential complication with this definition is that basically all materials are "nuclear" (radioactive) materials because they decay within a certain half-life, just as all materials are "chemical" materials. Many materials could do harm in some concentration and over some time, just as many chemicals can be toxic (e.g. alcohol, medicaments, etc.). But it is going too far to call them "weapons". What is decisive is the potential degree of harm and the practical usability as a weapon, which are always debatable. The degree to which nuclear materials are harmful is left to future research and can then be incorporated later into implementation of the Convention through decision of the Executive Council guided by the Technical Secretariat, with input from the public. This flexibility of adapting treaty terms must be preserved.



E. Nuclear Facilities

The definition of nuclear facilities is significant in designating which facilities are to be destroyed or converted and the degree of international control to which a facility that remains open will be subject.

Nuclear Facility - General Definition:

The IAEA definition of a nuclear facility reads:

(a) A reactor, a critical facility, a conversion plant, a fabrication plant, a reprocessing plant, an isotope separation plant or a separate storage installation;

or

(b) Any location where nuclear material in amounts greater than one effective kilogram is customarily used. (IAEA Doc. INFCIRC/153 (Corr), 1970, Structure and content of agreements between IAEA and States Parties to NPT.)

The drafters have provided a more comprehensive definition intended to cover all facilities that produce nuclear weapons or nuclear material of any sort, as well as facilities that play a part in the deployment or use of nuclear weapons.

Deployment Site: It is necessary to draw a distinction between deployment sites and storage facilities not located in deployment sites, since a deployment site will have facilities for storage. This distinction could be made by requiring a certain distance between a deployment site and any storage facility.

Principal Nuclear Facility: The purpose of this definition is to allow specific provisions for those facilities capable of producing materials or components for nuclear weapons. All principal nuclear facilities would be subject to safety controls.



F. Nuclear Materials

Special nuclear material (definition 59) is any fissionable or fusionable material which can be used for the manufacture of nuclear weapons. This definition classifies the material the production and use of which must be prohibited, and existing stockpiles of which must be placed under international control. An alternative, broader definition of special fissionable material (definition 57) would be "Any material containing Pu-239, U-233 or uranium enriched in the isotope U-235." Under this definition only natural and depleted uranium is not considered special nuclear material. The definition adopted in the current draft is slightly more narrow in that it does not include uranium enriched to less than 20% in the isotope 235. Twenty percent is the generally recognized cutoff for weapons grade uranium (although highly enriched uranium is typically 90% or more U-235).



G. Nuclear Activities

Nuclear Weapons Research: This broad definition is intended to cover any research that relates to nuclear weapons. Article XII, paragraph 4 distinguishes between nuclear weapons research that is prohibited, i.e. research towards the design, modernization, construction, modification or maintenance of nuclear weapons, and research that is permitted, i.e. research towards dismantling and destroying nuclear weapons, including environmentally safe methods for containment and final disposal of special nuclear materials.

Design as such has not been prohibited because verification of such a prohibition would be impractical or impossible. However, an argument in favor of prohibiting design is that while one may perform research without realizing its possible application to nuclear weapons, no one could innocently design an entire nuclear weapon.



H. Verification

Safety Controls: These are broader than the IAEA safeguards, which are primarily intended to deter diversion of nuclear materials through detection of such diversion once it has taken place. The Safety Controls proposed in the NWC would concentrate on prevention of diversion through physical protection and restricted physical access to special nuclear material. Safety Controls will be international; national access is to be eliminated to the extent possible. The purposes of the Safety Controls are detection and prevention of diversion, increasing the risk and the cost for violators and minimizing the risk for the international community. At present, the uncertainties work to the advantage of violators. The NWC seeks to shift that balance.

The IAEA safeguards material-accounting system cannot with confidence detect the diversion of weapons size quantities of nuclear material sufficient for the manufacture of dozens of weapons. This is in part due to unavoidable uncertainties of measurement and "hold-up" or loss of material which becomes stuck within the facility. But it is also because the IAEA in practice relaxes its own theoretical goals.

Even under the best accountancy regime, uncertainty will remain a problem. The best resources available still could not make it possible to account for all special nuclear material. But by adopting a policy of containment and surveillance, it will be possible to ensure that most, if not all, material unaccounted for is unavailable for weapons. For example, as long as plutonium (Pu) is contained and not dissolved in reprocessing plants, it will be possible to verify that it has not been diverted (even if it is not known definitely how much Pu there is under containment). Similarly, exit controls at mines and processing facilities can help contain material.



III. Declarations

Declarations provide the starting point for implementing and verifying the NWC. The declarations of stockpiles of nuclear weapons, delivery vehicles and special nuclear material will form the basis of the Registry (Section VIII.F), from which the phased program of elimination can begin and be verified.

In general, the recommended chronological order in which declarations are required reflects the immediacy of the nuclear threat posed, whether through intentional use or accident (with delivery vehicles listed last because their status is more complicated.)



B. Nuclear Material

Material that can more readily be used for nuclear weapons must be declared first. However, since other forms of nuclear material also pose a potential threat, these must also be declared. The difficulty here lies in the incompleteness of past records and the uncertainty of measurements.

The best way to verify the amount of weapons grade material would require measuring quantities in nuclear waste as well. (This is because Pu in any form poses a risk, since any mix of Pu isotopes could be used for nuclear weapons.) The spent fuel is in the same geometric form (rods) before and after burning and the technology for measurement exists. The more important question is what and how to verify, including past production, and what technology is necessary. Measures to minimize the risk of both verification uncertainty and diversion of unaccounted material would include anything from the stage of processing (or even mining) to deployment (as long as weapons are being deployed).

The treaty provides for accounting for special nuclear material as soon as possible. This will prevent future decisions from being based on incomplete or inaccurate accounts. Thorough accountancy is also urgent because records of past production must be reconstructed, based in part on investigation of old sources and individuals' memories. The NWC provides a relatively short time for submitting inventories on nuclear material because it is assumed (or at least recommended) that accountancy measures be pursued even before the NWC comes into force.





IV. Phases for Implementation

The most important aspect of the section on phases for implementation is that States agree to a program of steps that will culminate in the complete elimination of existing stockpiles of nuclear weapons. A secondary, but also important, aspect of this section is the recommended dates for completion of each phase.

The proposed phases for implementation are, in the drafters' belief, technically possible given political will and adequate resources. Provision has been made for extensions should States experience difficulties in meeting deadlines for technical or other reasons, including environmental and safety considerations. However, the dates should not be used as a justification by any State to oppose the treaty on the grounds that the number of years suggested for each phase is too short or too long. For that reason the proposed dates are tentative and provided in brackets.

Action required to be completed by the end of a given phase may commence at any time, i.e., even in a prior phase.

There are alternative proposals for reductions in the nuclear weapon arsenals of China, France, the U.K. and threshold States. Such reductions could either be proportionate to the reductions of the U.S. and Russia or alternately could begin once the stockpiles of Russia and the U.S. are reduced to a certain ceiling. This is the current policy, for example, of the U.K.

The special provision (Section IV.E) is designed to bring nuclear threshold States into the Convention without opening the door for new Nuclear Weapon States or threshold States as such (see discussion of definitions of States, Section II.A, above).





V. Verification

The purpose of the Verification Article is to lay out the general guidelines of the verification regime. The Verification Annex describes the verification tasks and procedures. In addition, the Technical Secretariat will develop manuals on the specific requirements for each verification task. Verification methods can and should be coordinated with other regimes and treaties, such as the Comprehensive Test Ban Treaty.

The drafters have opted to make the Agency established by this Convention responsible for monitoring and verification of nuclear materials and facilities. An alternative approach would be to authorize the IAEA to take on these responsibilities, a role it currently performs under the NPT. (See Sections II.H and VIII.A of this Commentary for an analysis of verification goals and their comparison to the IAEA safeguards.)

The overall purposes of the verification regime are ensuring the elimination of the nuclear weapons complex and preventing the reconstruction or acquisition of new nuclear weapons after elimination has been achieved. Since it may not be possible to create an absolutely watertight prevention system, the verification regime must severely constrain the technical and political possibilities of hiding, acquiring or producing nuclear weapons and increase the risks and costs for violators.



D. Confidence-Building Measures

Confidence building measures are voluntary measures by States to supply information, additional to that already required, to the Agency or to other States in order to develop greater confidence in compliance with the Convention. This could include bilateral agreements on reciprocal monitoring and information sharing between States.





VI. National Implementation Measures

The National Implementation Measures include the establishment of national authorities to oversee implementation of the NWC. Domestic legal systems will have to be adapted to the obligations assumed by States Parties.





VII. Rights and Obligations of Persons

Certain prohibited acts under the Convention are listed as crimes for which there shall be individual responsibility. This section outlines procedures for the trial of persons accused of crimes including the rights of the accused. The final scope of these provisions will depend on whether an international criminal court has been established by the conclusion of negotiations. In addition, protection of individuals reporting crimes (societal verification) is considered a vital component of the Convention (Section C).





VIII. Agency

A. General Provisions

The NWC proposes an implementing agency similar in structure to the Organization for the Prohibition of Chemical Weapons, although the provisions within the Technical Secretariat dealing with the Registry and the International Monitoring System do not have counterparts in the Chemical Weapons Convention.

The Agency's tasks would encompass and expand on some of the tasks currently within the mandate of the IAEA. The dual mandate of the IAEA--promoting nuclear energy and ensuring non-proliferation of nuclear weapons--has been described as somewhat contradictory in both principle and practice. The development of nuclear energy by any State generates fissile material, making it possible for that State to build a nuclear weapon. Despite safeguard provisions, there has been substantial criticism that the IAEA has been promoting nuclear energy at the expense of non-proliferation. The proposed NWC Agency would therefore take over the non-proliferation tasks of the IAEA.

The NWC Agency, unlike the IAEA, would not have the task of promoting nuclear energy. Its primary objectives include containment and surveillance of all materials, equipment, or facilities that could contribute to the development, production, or maintenance of nuclear weapons.



B. The Conference

The Conference is the principal organ of the Agency and is open to all Parties.



C. The Executive Council

It is proposed that the Executive Council consist of 42 members, including all Nuclear Weapon States. There is no specific allocation of seats for threshold States, for the reasons mentioned in Section II.A above. However, it would be expected that most or all threshold States would retain seats on the Executive Council unofficially, if not through regional representation, then through subparagraph 23.h. Participation of Nuclear Weapons States and threshold States is important for the success of the NWC. They may be unwilling to join unless they are on the Executive Council.

Other considerations for membership in the Executive Council are geographic diversity, special interest or expertise in the aims of the Convention and specific concerns regarding nuclear weapons . This could include, for example, States in which nuclear weapons have been used or tested.



D. Technical Secretariat

The Technical Secretariat is responsible for implementation and verification, including the preparation and maintenance of technical manuals. The contents of these manuals are beyond the scope of this draft.

The Technical Secretariat will be responsible for gathering all information necessary for verification and implementation. Sources for such information will include declarations and reports by States, systematic and challenge inspections, information from other agencies (including non-governmental organizations), publicly available sources, national technical means, and the international monitoring system.

Additional provisions might provide for independent research done by institutions other than the current nuclear weapons research laboratories. A fund to support such research might be established.



F. Registry and Other Databases

The Technical Secretariat will maintain a Registry, which will be open and transparent to States and non-State actors. The Technical Secretariat will make available to the Registry all information pertinent to verification and implementation of the treaty except information which may be kept confidential to protect genuine security or commercial interests. The drafters recommend including an Annex on Confidentiality along the lines of that included in the Chemical Weapons Convention.

With regard to challenge inspections it may be useful to make disclosure of information to a State Party depend on the degree of openness the requesting State has demonstrated.

It is possible that some information will remain secret at first and gradually be made publicly available as progress toward disarmament and confidence-building is made.



G. International Monitoring System

The NWC proposes the establishment of an International Monitoring System (IMS) similar to but more extensive than the International Monitoring System established by the Comprehensive Test Ban Treaty. The main purpose of the IMS is to enable the Agency to gather information necessary for the verification of the Convention. The system would include monitoring and analysis equipment owned or controlled by the Agency. In addition, information generated by equipment owned or controlled by member States would be shared through agreements with the Agency.

Special arrangements may have to be made for facilities located on disputed territory or on the territory of indigenous nations.





IX. Nuclear Material

A. Reconstruction and Documentation

Although all nuclear material presents some proliferation-related risks, the emphasis in this article is on nuclear-weapons-usable-material (special nuclear material). Efforts at reconstructing records of past production and transfers and accounting for current inventories of special nuclear material should begin as soon as possible. No distinction is made in this article between military and civilian material, as it is the material, not the source, which is of concern regarding possible diversion to nuclear weapons. In practice, however, there will be some differences in reconstructing and documenting the material from different sources. In general, civilian facilities have kept better records than military facilities since the former were subject to a greater degree of national and international monitoring and control, and safety in civilian facilities was often a higher priority than in military facilities.



B. Prohibition and Control of Special Nuclear Material

The NWC would prohibit production and use of special nuclear material, with the exception of specified quantities of materials necessary for medical, agricultural or research purposes. These would require a license.

Existing inventories would be subject to Safety Controls and placed in secure storage until a safe method of final disposal is found. The Verification Annex proposes that all highly enriched uranium be diluted and either used in civilian reactors or disposed of. This would prevent the continuing existence of weapons grade uranium.

The NWC should include an optional protocol (to be drafted) for the disposition of special nuclear material that would recognize disposition as an urgent problem and devote significant resources to the search for a permanent solution.

The burning of plutonium--conversion to mixed oxide (MOX) fuel and use in a reactor--as a means of disposition should probably be prohibited for the following reasons:

* Plutonium in spent fuel is inaccessible for weapons use. In order to turn it into MOX fuel, the plutonium needs to be separated, creating plutonium in weapons usable form. There is a risk of diversion of weapons usable plutonium between reprocessing and use in the reactor.

* Reprocessing of spent fuel introduces a number of environmentally risky processes to the fuel cycle.

* The building of MOX reactors will develop an ongoing demand for MOX fuel, which will stimulate reprocessing of plutonium even after all current weapons grade plutonium has been processed.

Of the currently available methods of disposition of plutonium, vitrification may be the preferable option. Vitrification and blending, however, require transportation over large distances to plants equipped to do the job and will entail massive logistical handling of toxic materials which will once again expose workers and communities to further contamination, spread the poisons to ever more surfaces and will not really solve the problem of what to do with a substance that remains lethal for hundreds of thousands of years.

The environmental problems of disposition of special nuclear material exist also for other nuclear waste. Even underground depositories, the option most governments are pursuing, pose problems of leakage of radioactive materials into the environment. Drafters consider that a major international effort is necessary to develop solutions to the nuclear waste problem. Until then, all nuclear waste should stay in place with special nuclear materials under Safety Controls.



C. Other Special Nuclear Material

Some special nuclear materials (tritium, helium-3, lithium-6, beryllium and Pu-238) have non-military uses. Such use can be restricted but not prohibited. With the exception of beryllium, which has many civilian applications, a licensing process could help minimize use, set limits on quantities and indicate whether the intended use was civilian or military.





X. Nuclear Weapons

The procedures outlined to remove nuclear weapons from alert and deployment and to register, tag, declare and destroy such weapons need not necessarily follow in exact chronological order in each circumstance. It may be possible in some cases, for example, to disable a warhead before removing it from its delivery vehicle. In other cases the procedure may be reversed. The manuals to be compiled by the Technical Secretariat will provide the precise details for each weapon system.





XI. Delivery Vehicles

The NWC proposes the destruction of delivery vehicles designed solely for the purpose of delivering nuclear weapons. It does not prohibit dual-use delivery vehicles. However, requiring dual-use delivery vehicles to be converted to non-nuclear capability would only provide limited confidence, as reconversion back to nuclear capability would not be difficult. For this reason, it is proposed there be an additional optional protocol (to be drafted) on prohibiting certain dual-use delivery vehicles which are destabilizing irrespective of whether they carry nuclear weapons or conventional payloads.





XII. Nuclear Facilities

Nuclear weapons production and research facilities may contain or consist of plants and equipment useful for the implementation of the Convention. For this reason, it may be more suitable to convert rather than close down some of these facilities. Under conversion, however, verification that nuclear weapons research and production have stopped could be difficult. Citizen verification will therefore be vital for developing confidence. Confidence building measures, such as information sharing, joint projects and reciprocal verification visits, may also assist.

It is proposed that nuclear testing facilities be closed as there is no evidence of any useful function they could play in implementing the Convention.





XIII. Activities Not Prohibited Under This Convention

The NWC includes a provision affirming the right to use nuclear energy for peaceful purposes. A number of the drafters oppose the development of nuclear energy because of the risk of diversion of fissile material and the health risks from radiation leakage and accidents. However, it is unrealistic to expect a universal prohibition on nuclear energy in the near future given its current role in meeting energy needs in some countries. Thus an optional protocol has been added under which States which forego nuclear energy can receive assistance in alternative energy development.





XIV. Cooperation, Compliance and Dispute Settlement

This section is modelled on similar procedures in the Chemical Weapons Convention. It provides for settlement of disputes by negotiation, mediation, arbitration or by other peaceful means. There is an optional protocol on acceptance of compulsory jurisdiction by the International Court of Justice for any dispute which cannot be solved by other peaceful means.

In order to ensure compliance, the Conference can take a number of steps against States Parties not in compliance, including the suspension of rights and privileges and of material assistance, as well as voluntary sanctions.

The NWC provides for referral of a serious dispute to the United Nations General Assembly or Security Council, which could result in further action, particularly under Chapter VI of the UN Charter (Pacific Settlement of Disputes), under which no State can exercise a veto.

However, the declared Nuclear Weapon States, who are also the permanent members of the Security Council, have veto power over any action which requires authorization under Article VII of the UN Charter, including compulsory sanctions or military action. The creative search for enforcement measures compatible with the UN charter will have to continue.





XV. Entry into Force

Entry into force is one of the most politically difficult provisions, as was evidenced in the CTBT negotiations. It is unlikely that any of the Nuclear Weapon States will assent to the Convention unless all Nuclear Weapon States and nuclear threshold States assent. On the other hand, if by the time of signing, most Nuclear Weapon States have decided that possession of nuclear weapons has no more strategic value, as they did in the case of chemical weapons, they may agree to a less restrictive entry-into-force requirement in order to advance the timetable for the elimination of nuclear weapons.

Drafters have opted for a somewhat restrictive entry-into-force requirement, including all Nuclear Weapon States, all nuclear capable States which are not parties of the NPT (this would include all current threshold States) and a minimum number of other States. This recognizes that all other nuclear capable States are in any case already obligated not to develop or acquire nuclear weapons under the NPT, making their early accession to this Convention less urgent.





XVIII. Scope and Application of Convention

A. Relation to Other International Agreements

This section provides the relationship between this Convention and other agreements, particularly other disarmament agreements. Further disarmament agreements may be concluded before this Convention enters into force.



C. Duration and Withdrawal

The Convention provides for no withdrawal, reflecting the view that the prohibition of nuclear weapons, and the obligation to eliminate them, have entered the realm of customary international law from which there should be no exception. This view is supported by the Advisory Opinion of International Court of Justice on the legality of the threat or use of nuclear weapons, which concluded that the threat or use of nuclear weapons is generally unlawful and that "There exists an obligation 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."

It is recognized that a non-withdrawal provision is unique in the history of international treaties. However, the subject of this Convention is also unique, involving, as it does, not only the health and safety of millions of individuals, but, in the words of one author, "the fate of the earth."







Bibliography

Steve Fetter, Verifying Nuclear Disarmament, The Henry L Stimson Center, Washington October 1996

Jozef Goldblat, Arms Control: A Guide to Negotiations and Agreements, International Peace Institute, Oslo, and Sage Publications, London, 1994

International Network of Engineers and Scientists Against Proliferation (INESAP), Beyond the NPT: A Nuclear-Weapon-Free World, New York, Darmstadt, 1995

INESAP Information Bulletin

Paul Leventhal, Safeguards Shortcomings--A Critique, Nuclear Control Institute, 1994

Arjun Makhijani and Annie Makhijani, Fissile Materials in a Glass, Darkly, IEER Press, Takoma Park, 1995

Arjun Makhijani, Howard Hu and Katherine Yih, Nuclear Wastelands: A Global Guide to Nuclear Weapons Production and its Health and Environmental Effects, MIT Press, Cambridge, 1995

The United Nations and Nuclear Non Proliferation, Department of Public Information, United Nations, New York, 1995







Drafting Committee and Consultants

(Organizations for identification purposes only)

Ed Aguilar Lawyers' Alliance for World Security

Glenn Alcalay NY Lawyers' Alliance for World Security

Frank Barnaby Oxford Research Group

Reiner Braun International Network of Engineers and Scientists for Global Responsibility

John Burroughs Western States Legal Foundation

Jackie Cabasso Western States Legal Foundation

Anne Marie Corominas Lawyers' Committee on Nuclear Policy

Merav Datan Lawyers' Committee on Nuclear Policy

Nicole Deller Lawyers' Committee on Nuclear Policy

Dieter Deiseroth International Association of Lawyers' Against Nuclear Arms

Anabel Dwyer Lawyers' Committee on Nuclear Policy

William Epstein Pugwash/NGO Committee on Disarmament

Solange Fernex International Peace Bureau

Shirley Fingerhood Lawyers' Committee on Nuclear Policy

Tonya Frichner American Indian Law Alliance

Jonathan Granoff NGO Committee on Disarmament

Andre Gsponer Independent Scientific Research Institute

Rebecca Johnson Disarmament Intelligence Review

Martin Kalinowski International Network of Engineers and Scientists Against Proliferation

David Krieger Nuclear Age Peace Foundation

Kent Lebsock American Indian Law Alliance

Wolfgang Liebert International Network of Engineers and Scientists Against Proliferation

Pamela Meidell Abolition 2000 Global Network Office

Saul Mendlovitz Rutgers University School of Law/World Order Models Project

Elliot Meyrowitz Lawyers' Committee on Nuclear Policy

Pascale Norris Lawyers' Committee on Nuclear Policy

Douglas Roche Former Disarmament Ambassador for Canada

Daniel Plesch British American Security Information Council

Elizabeth Shafer Lawyers' Committee on Nuclear Policy

Jurgen Scheffran International Network of Engineers and Scientists Against Proliferation

Jonathan Schell Author

Victor Sidel International Physicians for the Prevention of Nuclear War

Alice Slater Global Resource Action Center for the Environment/Lawyers Alliance for World Security

Roger Smith NGO Committee on Disarmament

Kenji Urata Japanese Association of Lawyers Against Nuclear Arms

Carlos Vargas Foundation for the Development of International Law and Security

Paul Walker Former U.S. Congressional Aide

Alyn Ware Lawyers' Committee on Nuclear Policy

Lucy Webster Global Education Associates

Peter Weiss Lawyers' Committee on Nuclear Policy

Burns Weston University of Iowa College of Law

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