Should the ban treaty oblige its parties to ratify the NPT?

By Kjølv Egeland

Joining the nuclear weapons ban treaty should only be open to states that have ratified the Nuclear Non-Proliferation Treaty (NPT), argued the Argentinian delegation to the first segment of substantive negotiations on a treaty banning nuclear weapons at the UN in March. The reason for including such a provision would presumably be to provide a “deterrent to states that are considering withdrawing from the NPT, ensuring that they cannot deflect international condemnation by claiming to be committed to disarmament proceedings via the ban treaty.”  

Ensuring that the ban treaty cannot be used as a cover for unsavoury activities is important. Yet I suggest that formally linking the ban treaty to the NPT in this way is a bad idea.

It is the International Atomic Energy Agency (IAEA) – not the NPT – that ensures that states do not use civilian nuclear technology for military purposes. The NPT simply makes it mandatory for its non-nuclear-weapon state parties to have in place an agreement with the IAEA, allowing it to conduct inspections. But the NPT does not “own” the IAEA safeguards – far from it. Concluding IAEA safeguards has also been made mandatory by all five treaties establishing nuclear-weapon-free zones. One of these treaties – the Treaty of Tlateloclo – predates the NPT. It bears mentioning that none of these regional ban treaties seem have undermined the NPT or caused nuclear proliferation.

As all the regional nuclear weapons bans, the global nuclear weapons ban should oblige its members to conclude comprehensive safeguard agreements with the IAEA – not join the NPT. The ban treaty could of course also make the IAEA’s Additional Protocol mandatory (this is a voluntary add-on under existing agreements), but this will likely meet opposition from states concerned about the “balance of mutual responsibilities and obligations of the nuclear and non-nuclear Powers”.

Making ban treaty accession dependent on NPT ratification rather than the conclusion of IAEA safeguards has two main drawbacks: First, the five states implicitly defined as “nuclear-weapon states” by the NPT are not required by the NPT to conclude IAEA safeguard agreements. A ban treaty that simply obliged its signatories to be parties to the NPT (and not directly to conclude safeguard agreements) would thus allow the nuclear-weapon states to join the treaty without safeguards. That would hardly be fair or wise. Second, making NPT ratification a necessary condition for ban treaty accession would likely shut the door on India and Pakistan ever joining the treaty. While nobody believes India or Pakistan will join the ban treaty any time soon, it is a safe bet that they will join the ban treaty before they join the NPT – which they have described as unfair and discriminatory for five decades. One of the benefits of the ban treaty is precisely that its provisions will apply equally to all states, regardless of whether they were major powers in the 1960s.

Ban treaty accession should not be dependent on NPT ratification.

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