The Canberra Commission on the Elimination of Nuclear Weapons

Annex B

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Amendments

The method of amending a multilateral treaty depends on the terms of the treaty. Where no provision is made for amendment, the residual rules set out in the Vienna Convention on the Law of Treaties apply.

Unless a multilateral treaty provides otherwise, amendments to it bind only those parties which become party to the amending instrument. Where not every party to a multilateral treaty adheres to an instrument amending the treaty, a two-tiered system arises in which two different sets of states are bound by two different sets of obligations. First, the unamended treaty governs relations between a state party to the unamended treaty and a state party to the treaty as amended. It also governs relations between two states party to the unamended treaty. Second, the treaty in its amended form governs relations between two states party to the treaty as amended.

As a practical matter, it is difficult to prevent such a two-tiered outcome from persisting for a protracted period even where all parties to the original treaty intend to ratify the amending instrument. This is because delays are inevitable as each state party complies with domestic requirements for treaty action before ratifying the amending instrument. In a situation where some parties to the treaty were unwilling to ratify the amending instrument because they disagreed with the substance of the amendments, the two tiers of obligation would continue indefinitely.

The effect of two co-existing tiers of obligation varies with the nature of the treaty. Most treaty obligations in the field of disarmament are not premised on a strictly reciprocal basis. In the case of the Treaty on the Non-Proliferation of Nuclear Weapons, for example, each party's obligations are of an over-arching and largely negative ­p; that is, refraining ­p; nature. In one sense, those obligations benefit states not party to the NPT as much as states party, although they are not enforceable by non-party states. In many areas of international trade law, by contrast, the benefit of treaty obligations flows to other states on a purely reciprocal basis, even in the context of a multilateral treaty. That is, the benefit arising from the treaty obligations of one state party will flow only to other states party.

This propensity for the benefits of disarmament obligations to flow on to non-party states may lessen the impact of having two co-existing tiers of obligation. The new obligations assumed by those states parties which ratify an amending instrument are likely to benefit one and all, irrespective of adherence to the ratifying instrument or even to the unamended treaty. On the other hand, this feature may lessen the incentive for each state party to assume further obligations by ratifying an amending instrument, thereby perpetuating the messy two-tier situation.

The amendment provisions of the NPT are noteworthy. Any amending instrument must be ratified by a majority of all NPT parties which includes all the nuclear weapon state parties and all parties which were, at the time the proposed amendment was circulated, members of the International Atomic Energy Agency Board of Governors (in accordance with Article VIII.1 and VIII.2 of the NPT). Thus any one of 30 states could choose to exercise what is, in effect, a power of veto to prevent an amendment from entering into force, however strong the support for the amendment. But in practice, an amendment supported by the nuclear weapon states to enforce obligations to bring about the achievement of a nuclear weapon free world could be expected to receive support from all non-nuclear weapon states party to the treaty.

Nevertheless an important point to note about the option of creating new disarmament obligations by amending existing instruments is the difficulty of 'quarantining' amendment proposals. All multilateral treaties are necessarily the product of much compromise. For some parties, a proposed amendment may appear to upset the original balance of rights and obligations which made the treaty acceptable. For others, it may herald an opportunity to attempt to redress every perceived problem in the unamended treaty by re-opening debate upon all aspects of the treaty ­p; in what could prove to be a counterproductive exercise serving only to weaken the treaty in question.

Protocols

A protocol added to an existing treaty will bind only those parties to the treaty which express their consent to be bound by the protocol. However, entry into force of the protocol would take place on its own terms. In relation to the NPT, for example, a protocol could serve to situate important new obligations under the auspices of the NPT while avoiding the cumbersome and highly uncertain NPT amendment process. Since the protocol would not amend the NPT its provisions could not conflict with those in the NPT, but it could impose additional obligations, provided they are not inconsistent.

Optional protocols may be negotiated contemporaneously with the treaties to which they are attached or at a later date. If negotiated later, their potential existence may be foreshadowed in the text of the treaty, as a means of encouraging future efforts on questions incapable of resolution at the time of negotiation of the core treaty. However, this path would require agreement by the states adopting the treaty that the question at issue was one which should be debated and agreed upon at a later date.

Whenever negotiated, protocols could usefully facilitate a staged approach to nuclear disarmament.

New Treaties

There is also the option of negotiating an entirely new treaty. The attractiveness of this route would depend on a number of factors including the extent of support from the nuclear weapon states for this option. On the one hand, negotiation of an entirely new treaty will usually permit greater freedom as to the scope of subject matter covered. On the other, negotiations on the basis of a fundamental lack of consensus may impede progress. The time taken for negotiation and universal ratification also would need to be taken into account.

Revised Interpretation of Existing Treaty Provisions

Interpretation of the provisions of a treaty must take into account any subsequent agreement between parties regarding its interpretation, and any subsequent practice in the application of the treaty establishing such agreement (per Article 31.3 of the Vienna Convention on the Law of Treaties).

One possible application of this rule concerns Article VI of the NPT. The Principles and Objectives document of the 1995 NPT Review and Extension Conference may be viewed as an agreement among NPT parties as to the steps by which Article VI should be implemented. Future NPT Review Conferences will review this common understanding of implementation of Article VI.

Unilateral Statements and Acts

A state may be bound by an obligation undertaken in a unilateral declaration if this is the intention of the state making the declaration and the undertaking is given publicly. Most unilateral statements, however, are political in character and are not intended to create legal obligations. Although these statements are not legally binding, they can engender goodwill and enhance the atmosphere for productive negotiations towards mutually accepted binding commitments.

Unilateral acts may also assist initial progress towards treaty negotiations, both by reducing substantive obstacles to agreement and by helping the psychological adjustment to the view that a secure nuclear weapon free world is feasible.

Political Commitments by Two or More States

Like unilateral statements and acts, jointly expressed political commitments may help to accelerate progress on disarmament. A multilateral non-binding political declaration can be of potentially enormous influence. It may even have an indirect legal effect if it comes to be seen as representing customary international law. For example, the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 carries much weight and has been invoked by international tribunals. Moreover, even if the declaration does not involve legal obligations, any state would think twice before reneging on a well-publicised political commitment undertaken jointly with other states. As recommended in Part Two of the report, an immediately beneficial first step at this stage of the disarmament process would be a commitment to a nuclear weapon free world by all five declared nuclear weapon states, in the first instance. What is proposed is not a treaty but a political commitment or compact, entered into by those five states to which all other states could express their agreement and support.

• The new treaty could provide that none of its provisions were intended to affect the operation of the NPT until such time as the new treaty had both entered into force and been adhered to by every state party to the NPT. At that stage, the NPT would be terminated, either explicitly by the terms of the new treaty, to which all NPT parties had adhered, or implicitly by virtue of Article 59 of the Vienna Convention on the Law of Treaties ­p; assuming that the new treaty would either subsume the NPT in its entirety or be incapable of simultaneous application with it. However, this would be a very elaborate solution, and confusion would be likely as to the interaction between the provisions of the new treaty and those of the NPT during the period before the NPT was terminated
• The new treaty could provide that it was to enter into force only after it had been ratified by all states party to the NPT. Again, the NPT would at that stage be terminated, whether explicitly or implicitly. Thus, the provisions of the NPT would not be jeopardised prior to the clear-cut replacement of the NPT regime with the regime ushered in by the entry into force of the new treaty. The difficulty here is that such a high threshold requirement for entry into force may mean that the new treaty never did enter into force, so that despite all the efforts towards a new treaty the practical outcome would be the continuation of an unimproved NPT regime.

• Identification of concrete and realistic steps for achieving a nuclear weapon free world, including the development and establishment of necessary verification and control mechanisms and new international legal obligations. Possible areas of focus include:
  • the contribution of a Comprehensive Test Ban Treaty; nuclear weapon free zones; a 'cut-off' convention on the cessation of production of fissile material for nuclear weapons; a possible treaty requiring all states to declare and account for their present stocks of fissile material; and the strengthening of the international safeguards system;
  • carrying through of the commitment by the nuclear weapon states to eliminate their nuclear stockpiles through a systematic process, including safe and secure arrangements for weapons dismantlement and destruction; and
  • the problem of nuclear threshold states and the related issue of achieving universal participation in the NPT.
• Development of durable security arrangements, both globally and regionally, including:
  • the maintenance of a system of stable deterrence while the reduction and eventual elimination of nuclear weapons is being achieved;
  • the link with other weapons of mass destruction and their control or elimination; and
  • measures to prevent break-out, nuclear theft and nuclear terrorism/criminality.
• Other related issues the Commission may identify during its work.