Creating the Environment for Nuclear Disarmament: Good Faith Effective Measure Purs. to Art VI NPT?

Thanks Catalina and thanks to Thea and Laura for all their hard work in putting on the conference. It's not been the easiest circumstances so it's much appreciated. So this paper kind of came about by my interest in nuclear arms control and disarmament generally and specifically kind of the deterioration in those efforts in the last 20 years or so. So we all know that under Article 6 of the Nuclear Non-Proliferation Treaty an obligation to pursue negotiations in good faith on effective measures relating to nuclear disarmament was established. However as I said this has kind of stagnated in the last 20 years. Arms control efforts are in a state of disarray with the INF Treaty being terminated last year and the Joint Comprehensive Plan of Action being withdrawn by the US in May 2018. The US has kind of began to justify this action and its abandonment of arms control on the premise that the current international security environment isn't conducive to further disarmament progress and because of that it started to launch a new initiative called Creating the Environment for Otherwise Known as CEND. So in brief this initiative seeks to establish a new platform for all states to engage in constructive dialogue to identify ways to improve the international security environment and therefore address those underlying hurdles which are impeding nuclear disarmament progress at the moment. So according to Assistant Secretary Christopher Ford who's the leading figure behind the initiative, the initiative itself seeks to learn from the reductions in nuclear weapons following the end of the Cold War and how these reductions did not bring about the end of Cold War tensions but were actually a result of an easing of those tensions. But most significantly for kind of the purposes of this paper the US has specifically argued that Friend actually demonstrates an illustration of its commitments to fulfilling Article 6 under the NPT as an effective measure towards that goal and that's the claim that I find kind of most confusing that I wanted to assess there, particularly whether it can constitute an effective measure on the one hand and whether it has been adopted in good faith as Article 6 requires So this paper is kind of really divided into two parts. The first one looks at the concept of effective measures. So what do we mean by that in the context of the NPT? So during the negotiations the nuclear weapon states were reluctant to include any specific steps in the treaty which would be pursued towards nuclear disarmament and therefore it's quite silent treaty as a whole and will constitute an effective measure. So many commentators including Ford himself have argued that means it grants great flexibility to all the state parties to pursue whichever measures they like, both unilateral and multilateral nature towards nuclear disarmament. However in reality for a measure to kind of constitute compliance with Article 6 Daniel Joyner kind of observes that it should be part of a wider policy program whose stated objective is the complete elimination of the subject weapons and nuclear weapons. Anything more limited such as partial disarmament measures wouldn't satisfy that requirement. So although it's relatively broad it has to be part of a wider agenda to actually achieve the complete elimination of nuclear weapons. It's also been suggested that the 13 disarmament steps identified in the 2000 NPT review conference can constitute subsequent agreements among state parties regarding the interpretation of a treaty or the application of its provisions under Article 31 sub paragraph 3 of the Vienna Convention on the Law of Treaties. So this can give quite a good indicator of various measures which would amount to effective measures for purposes of Article 6 but it must be recalled they're also not exhaustive it's just kind of a list that are quite good identifiers. But they can help determine whether SEND constitutes one of these steps that has been agreed by consensus. So for example step 9 encourages the nuclear weapon states to take steps towards nuclear disarmament in a way that promotes international stability. Step 9 sub section 2 and action 5 sub section g both emphasize the importance of taking additional steps to further enhance transparency and increase mutual confidence among the nuclear states and that would seem to align with that underlying objective of SEND to create a new form for dialogue which can increase transparency and address existing impediments to nuclear disarmament. It's also worth recording that the US says also frames SEND as being informed by the NPT preamble specifically paragraph 12 which recognizes the need to further ease international tensions and strengthen trust between states to facilitate the liquidation of all existing stockpiles. So this kind of suggests that SEND is actually inspired by the NPT's text even if it is relatively quiet on what effective measures should be envisioned. So in terms that first requirement of effective measures it seems possible at least in theory that it could possibly be an effective measure but really we can only determine its effectiveness in hindsight the initiative is only a couple of years old it's only had two meetings so far and a lot of the future has been postponed in light of a recent pandemic as well. It's probably the next criteria of good faith under article 6 that probably raises the most question as to whether the US is acting in good faith. So it's worth first noting that an ongoing debate exists as to whether article 6 establishes an obligation merely to try and pursue negotiations or more onerous obligation to both pursue and bring to a conclusion negotiations on nuclear disarmament as the ICJ suggests in the nuclear weapon advisory opinion. But in truth the actual obligation established probably falls somewhere in between and that's because of the requirements of good faith. So we know in relation to negotiations generally the ICJ has described good faith as an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiations. States should be under an obligation to conduct themselves so that their negotiations are meaningful. So in other words the good faith requirements article 6 entails an obligation to proactively, diligently, sincerely and consistently pursue good faith with a serious intention of achieving nuclear disarmament as opposed to an actual obligation and that's that subtle difference it's not one extreme it's not the other it's somewhere in between. But of course measures which aim to prolong the attainment of nuclear disarmament which kind of delay it further that would obviously not satisfy this requirement that could be an indication of bad faith. And that's where SEND is a little less clear. On the one hand if the US does genuinely believe that it cannot pursue any further nuclear disarmament in the current security environment then introducing SEND could be seen as a good faith measure. It could be a proactive step to kind of increase cooperation and compliance among states to identify ways to address current deteriorating security conditions and actually rightfully applaud if that's the case. If you look at how SEND has been implemented in the two groups so far it's actually received a lot of praise from commentators. The US hasn't kind of led the discussions it's allowed discussions to emerge organically reaching natural points of consent just amongst the participants and it's also avoided any finger pointing any blame game rhetoric amongst the nuclear working states which often plagues the confidence and disarmament and the NPT itself. So because of that it kind of looks like SEND could be seen as a meaningful good opportunity for bridge building which hasn't actually existed previously to overcome those existing hurdles. But actually there's a lot of reasons to kind of question the sincerity of the initiative. So firstly it kind of imposes additional conditions which have to be achieved first before nuclear disarmament can progress and that's not included in article 6. There's nothing that says a perfect security environment is needed. It's also the case that the US has seemed to acknowledge as failed to acknowledge sorry its own contribution to the deteriorating security environment. So it hasn't kind of acknowledged its withdrawal from arms control agreements or its recently targeted attacks in Iran for example. The US has also kind of not followed the underlying premise of SEND in other organizations. So for example in the conference sorry in the UN first committee on disarmament recently the US has released quite antagonistic statements directed towards Russia and China claiming that they're expanding their nuclear arsenals with the purpose of trying to dismantle the liberal democratic order and this kind of counters the idea of being constructive open dialogue transparent dialogue with other nuclear states and it kind of suggests a degree of hypocrisy or insincerity in the part of the US and again unlike which wouldn't actually constitute good faith for these purposes. It's also worth pointing out that actually the conditions were ignores the idea that actually reducing nuclear up in stockpiles would be a huge contribution to that. By reducing the number of weapons we naturally reduce the level of conflict between the nuclear states and competition so the nuclear arms would basically halt and that's a key point that is kind of missed by the US here. And finally it's also worth considering that one could argue that SEND maybe represents just a fig leaf an attempt to demonstrate compliance and offset complaints by the non-nuclear weapon states. The nuclear states have done very little towards nuclear disarmament over the past 20 years or so and this point gains a lot more traction when we consider the timing of the initiative's launch. So it's closely followed the recent negotiation of the treaty on the prohibition of nuclear weapons in 2017 and it's now also just preceded the 10th review conference after 50 years of the NPC's entry into force. So overall when we kind of consider SEND as a whole it could generally be considered an effective measure that could pursue nuclear disarmament and actually make that more attainable in the future by increasing cooperation but we have to be very skeptical about those underlying intentions of the US and how it's been implemented so far. This doesn't seem to kind of undermine the possible benefits that it might bring in fact it could be a really good way of kind of getting across new ideas new initiatives in a quite discreet forum as opposed to the conference of disarmament but rather it kind of suggests that the US assertion that it demonstrates compliance with article 6 is probably flawed.